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Professional Liability Matters

South Carolina High Court Allows Malpractice Claim by Insurer Against its Assigned Defense Counsel
Early March, in a narrow, carefully worded opinion, a divided Supreme Court of South Carolina ruled that a liability insurer may sue an attorney it retained to defend its insured where the attorney’s breach of its duty to the insured proximately causes the insurer damage. The decision adds South Carolina to the growing list of states that recognize a malpractice cause of action by an insurer against its assigned defense counsel. See Sentry Insurance Co. v. Maybank Law Firm, LLC, — S.E.2d —, 2019 WL 1119977, at…

POSTED MARCH 19, 2019 4:52 PM
NY Considers Limiting Claims Against Design Professionals
The New York Legislature is considering whether to enact a statute of repose that would limit the time for filing a claim against builders and design professionals for construction defects. Assembly Bill A3595 would repeal Civil Practice Law & Rules (CPLR) § 214-d in its current form and reenact § 214-d to codify a statute of repose similar to a significant majority of states.

POSTED MARCH 18, 2019 2:50 PM
Limiting Malpractice through Scope of Engagement
A recent NY Appellate Division decision serves as another reminder of the importance of carefully defining the scope of engagement in an engagement letter. This is because, under New York law, an attorney may not be held liable for failing to act outside the scope of their retainer.

POSTED MARCH 11, 2019 3:06 PM
Are Litigation Funders Exposed?
Third-party litigation funders regularly argue before ethics committees, state bar associations and the media that this burgeoning field is a positive development in the practice of law. Primarily, some assert that their funding allows individuals and companies shut out of the court room by excessive litigation costs to "have their day in court" when they would otherwise have to bow out against the Goliath to their proverbial David. Of course, providing the necessary financial backing for a lawsuit is not done out of the goodness of funders' hearts. A portion of the proceeds from any settlement or award goes to the funder after the attorneys' fees and costs are paid. Although the latter is always negotiable, funders must therefore calculate at the outset the likelihood of victory, the amount expected in total, and what their hypothetical share would be.

POSTED MARCH 04, 2019 3:05 PM
Pennsylvania Opens Door to Lawsuits Against Foreign Companies
The Due Process Clause of the Fourteenth Amendment to the US Constitution limits the authority of courts to exercise jurisdiction over non-resident defendants. Before a court can exercise personal jurisdiction over a party, the Constitution requires that the party have certain "minimum contacts" in the state where the court sits. Jurisdiction may be satisfied when the suit arises from the foreign person's activities in the forum state. Further, with respect to foreign companies, jurisdiction may be satisfied regardless of the nature of the lawsuit if the company has continuous and systematic contacts with the forum state or if it consents to jurisdiction there. Courts have been divided, however, as to what actions by a company constitute consent to jurisdiction in the forum state. For instance, does a foreign corporation's mere registration to conduct business in a state satisfy the constitutional threshold? In two recent decisions, the Pennsylvania Superior Court resolved that it does.

POSTED FEBRUARY 25, 2019 2:56 PM
When Workplace Gossip is Grounds for Title VII Claim
In less than 18 months of employment, Evangeline Parker received six promotions. Then rumors circulated that Parker’s precipitous rise through the ranks "must" have been because she was sleeping with her boss. When Parker complained about the rumors and confronted the employee who allegedly started the rumors, she was terminated. Reversing the district court’s dismissal of the lawsuit, the Fourth Circuit Court of Appeals, in Parker v. Reema Consulting Services, held that such rumors could form the basis of a sexual harassment claim in violation of Title VII.

POSTED FEBRUARY 18, 2019 2:55 PM
Arbitration Ban in Nursing Homes? White House Reviewing Rule
The White House Office of Management and Budget ("OMB") is reviewing a final rule to reverse a 2016 regulation banning nursing home operators from entering into pre-dispute arbitration clauses with their residents as a condition of participating in Medicare and Medicaid. According to the OMB’s web site, the rule “removes provisions prohibiting binding pre-dispute arbitration and strengthens requirements regarding the transparency of arbitration agreements in LTC facilities.” Per the OMB, the rule facilitates “the resident’s right to make informed choices about important aspects of his or her healthcare” and eliminates unnecessary burdens on long-term care providers.

POSTED FEBRUARY 11, 2019 3:35 PM
The Importance of Quality IT in Litigation
One of the most important aspects of working with corporate clients is understanding the businesses. From general business functions to the overarching models, this knowledge can be extremely valuable in both transactional and litigation work. However, client technology is becoming more industry specific, often making it infeasible for attorneys to learn. It is in these cases that a quality IT team working on behalf of the firm is not only the most efficient way to service a client, but also may be a litigation requirement.

POSTED FEBRUARY 04, 2019 3:15 PM
Sexual Assault in Nursing Homes
On December 29, 2018, a 29-year-old woman in a vegetative and uncommunicative state gave birth to a baby boy. The woman had been in a vegetative state for at least a decade after a near-drowning incident which caused brain drainage. She had been a longtime resident of a healthcare facility in Phoenix. The employees of the nursing home only became aware that the resident was pregnant when she was found moaning and it was discovered that the resident was in active labor. Several news reports indicated that the resident required around the clock care and many individuals had access to her room. Since the incident, the facility has changed its policy regarding male employees entering a female resident’s room. It will now be required that a female staff member be present with a male staff member in a female resident’s room at all times.

POSTED JANUARY 18, 2019 6:50 PM
Lack of Training Deemed Adverse Action
What is an “adverse action”? In the workplace some may think that it is only when someone is fired. However, much more falls under the “adverse action” umbrella. What about denying an employee a training opportunity? A federal district court in New York recently analyzed this very issue. The case involved a longstanding employee that was placed into a different role but denied training opportunities that were offered to other employees. The plaintiff struggled in her new role and eventually commenced a lawsuit asserting many claims, including race discrimination.

POSTED JANUARY 15, 2019 1:48 PM

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