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Professional Liability Matters

How Long Is Too Long to Wait for Malpractice Actions?
One of the most common problems facing a would-be plaintiff considering a malpractice case is when to file suit. Similarly, those that defend professionals must consider whether to move to stay proceedings if applicable. Especially with accountants and attorneys, causation and damages are difficult to calculate until the underlying matter has concluded. This means that the notoriously long legal process can often come into conflict with the statute of limitations, or create evidentiary problems. The decision is whether to wait many years for the underlying action to conclude and damages to materialize, or continue with the malpractice action in the midst of unresolved issues although the facts are still fresh in witness’s minds. In a recent Texas appellate decision, the court ruled that the case should proceed immediately.

POSTED JANUARY 17, 2018 7:23 PM
Electronic Notifications for Affidavits of Merit?
The New Jersey Supreme Court recently declined to dismiss a medical malpractice case for an attorney’s failure to file a timely affidavit of merit (AOM). The court based its decision in large part on the trial court’s failure to schedule a preliminary conference (called a "Ferreira" conference in NJ) to discuss the sufficiency of the AOM. The court further stated that it would order improvements to the courts’ automated case management system to ensure the electronic notification of both the AOM filing obligation and the scheduling of such Ferreira conferences. 

POSTED JANUARY 10, 2018 3:13 PM
Is a Client’s Criminal Prosecution Foreseeable?
Professionals assume a duty of care to their clients.  Accordingly, professionals may be held liable for damages to clients that are proximately caused by their negligent acts.  In many cases, the link between the professional’s negligent act and the client’s injury is clear, such as a missed deadline that waives a client’s rights.  The limits of foreseeability become more difficult to define when the professional’s alleged misconduct triggers independent acts by third parties, such as a government investigation of the client.

POSTED JANUARY 02, 2018 3:18 PM
The Price of High Profile Investigations
With the recent wave of allegations concerning employment-related conduct, there may be in uptick of employers engaging outside firms to conduct internal investigations. While these can be kept in-house, high profile cases and social media often results in the publication of these reports to the public. Consider the NFL’s investigation of the Miami Dolphins known as “bullygate.”

POSTED DECEMBER 18, 2017 2:50 PM
Case Study: Is a Broker a Fiduciary?
In a decision addressing the facts necessary to plead a breach of fiduciary duty claim against a broker, a California federal district court considered the difference between an “ordinary” broker-customer relationship, and one which rises to the level of a fiduciary relationship.

POSTED DECEMBER 13, 2017 2:40 PM
Pitfalls of Facebook Friendship
Friendship has taken on new meaning in the age of social media.  Old acquaintances, former classmates, co-workers, professional contacts, public figures, family, and close companions may all be similarly situated as a “friend” on social media, regardless of the level of personal interaction with each.  Social media users therefore often apply more liberal standard when accepting new network friends than they would in their personal lives.  Professionals, however, may need to be more cautious.

POSTED DECEMBER 04, 2017 2:14 PM
Break Time is Over
Today’s employees demand flexibility. In turn, many employers are moving towards a “results orientation” business model and getting away from the standard 9-5 schedule. In other words, the employer cares less about when employees get the work done, and only cares that the work gets done effectively. Employment laws are only beginning to catch up to this shift in work hours. Take for example the recent decision where the Third Circuit confirmed that the FLSA requires employers to compensate employees for breaks of 20 minutes or less where the employer allowed employees the flexibility to log off their computers at any time they wished.

POSTED NOVEMBER 28, 2017 2:37 PM
Congress Considering Federal Cyber Breach Laws
Huge cybersecurity breaches at major retailers caught the attention of the public and have made headlines. Now, more recent breach at one of the major credit reporting agencies has the attention of Congress. 48 states and the District of Columbia already have some form of legislation governing security breaches. These statutes typically begin by laying out who is subject to the requirements, such as businesses and information brokers, and what information is considered protected “personal information.” The laws then outline what constitutes a breach, the requirements for providing notice, and exemptions to the law. What's next, Congress?

POSTED NOVEMBER 14, 2017 8:05 PM
Microcaptives Create Headaches for Professionals
Captive insurance companies have long been a popular vehicle for companies that require insurance in areas where it is hard to find coverage. Although the IRS has been somewhat suspicious of captives for some time, it was not until the past several years that microcaptives, or captives for smaller companies, apparently piqued the interest of the IRS. After the Tax Court issued an opinion over the summer, several other similar cases have gone to trial and await opinion. The result of these cases will have a significant effect on professional firms who facilitated the creation of these microcaptives, as the businesses hit with improper deductions and tax penalties will likely look for somewhere else to lay the blame.

POSTED NOVEMBER 13, 2017 8:12 PM
Performance Evaluations: A Lesson on Documentation
Cases turn on the evidence. In the case of an employment discrimination or retaliation claim, the key may lie in the employee file maintained by the employer. One common piece of documentation created and maintained by many employers is performance evaluations. In Walker v. Verizon, a federal district court in Pennsylvania ruled on a case illustrating how important documentation can be in defending these claims.

POSTED NOVEMBER 06, 2017 4:54 PM

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