Certificates of Insurance May Confer Coverage
December 30, 2019 —
Brett M. Hill - Ahlers Cressman & Sleight PLLCCertificates of insurance are a common tool used in the construction industry to provide proof of insurance coverage. The legal effect of certificates of insurance has been a source of debate in Washington. Insurance companies have argued that certificates of insurance are “informational only” and do not alter the terms of the applicable insurance policy. Insurance companies have taken the position that if a certificate of insurance provides for coverage that is different than what the policy provides, the insurance company is only bound to provide what the policy provides.
The Washington State Supreme Court weighed in on this issue in an opinion issued on October 10, 2019, and held that an insurance company is bound by the terms of its certificate of insurance – even if it conflicts with the policy. In T-Mobile USA, Inc. v. Selective Insurance Company of America, Selective’s agent issued a certificate of insurance to “T-Mobile USA, Inc., its subsidiaries and affiliates” and stated that those entities were “included as additional insured” under the policy. The certificate of insurance was issued by Selective’s agent when T-Mobile’s contractor purchased an insurance policy from Selective for a cell tower project. The contractor’s agreement for the project was with T-Mobile Northeast – not T-Mobile USA. The contract between T-Mobile Northeast and the contractor stated that T-Mobile Northeast would be an additional insured. The Selective insurance policy stated that any third party would automatically be an additional insured if the contractor was required to name the third party as an additional insured. The contract did not provide that T-Mobile USA would be an additional insured.
A property owner damaged by the cell tower project sued T-Mobile USA. T-Mobile USA tendered the claim to Selective. Selective denied the claim because the contract between the contractor and T-Mobile Northeast did not require the contractor to name T-Mobile USA as an additional insured.
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Brett M. Hill, Ahlers Cressman Sleight PLLCMr. Hill may be contacted at
brett.hill@acslawyers.com
Axa Buys London Pinnacle Site for Redesigned Skyscraper
February 26, 2015 —
Dalia Fahmy and Patrick Gower – Bloomberg(Bloomberg) -- Axa Real Estate Investment Managers, the property unit of Europe’s largest insurer, has bought the London site of the halted Pinnacle skyscraper and plans to build a tower of its own design.
The building at 22 Bishopsgate will have more than 1 million square feet (93,000 square meters) of offices, shops and restaurants, the Paris-based company said in a statement Friday. It’s paying 300 million pounds ($460 million) for the property, according to a person with knowledge of the matter who asked not to be identified because the information is private.
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Dalia Fahmy, Bloomberg and
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The "Dark Overlord" Strikes The Practice Of Law: What Law Firms Can Do To Protect Themselves
April 17, 2019 —
Ivo G. Danielle – Newmeyer & DillionCybersecurity breaches involving law firms are on the rise with each passing year. Law firms are prime targets for cyber criminals seeking confidential and sensitive information because of the various types of legal work that law firms normally handle for their clients. Whether it be mergers and acquisitions, the use of intellectual property, purchase agreements, bankruptcy or even litigation involving divorce, law firms are a rich depository for highly confidential and sensitive information. As a result, law firms must employ comprehensive security measures to protect themselves from security breaches or risk being on the losing end of a costly malpractice claim, and suffer severe reputational harm.
Law Firms Continue To Be Targeted By Cybercriminals
According to the American Bar Association ("ABA") 2018 Legal Technology Survey Report, 23% of the law firms who participated in the survey reported that their law firm experienced a data breach. Although this may be just a 1% increase from the 22% who reported a breach in 2017, it is important to understand that this is an increase of 8% from the stable percentages reported from 2013 through 2016.1 The 2018 survey report also revealed that security breaches fluctuated with firm size – 14% for solo law firms, 24% for firms employing 2-9 attorneys, approximately 24% for firms with 10-49 attorneys, 42% for firms with 50-99 attorneys, and approximately 31% for those firms employing 100 or more attorneys.
Latest Law Firm Security Breaches
The notorious criminal group called "The Dark Overlord" has a history of committing data breaches of high profile companies such as Gorilla Glue, Netflix, Larson Studios, multiple healthcare companies, and Little Red Door Cancer Agency. Their goal is simple – steal sensitive information and then extort payment from the victims by threatening to release the sensitive information to the public.
On December 31, 2018, this cybercriminal group announced to the world that they had acquired 18,000 documents containing highly sensitive legal information related to insurance based litigation connected to the 9/11 tragedy. The stolen information was the attorney/client property of Lloyd's of London, Silverstein Properties, and Hiscox Syndicates, Ltd. In its announcement, The Dark Overlord boasted that they were in possession of client sensitive information, such as: "emails; retainer agreements; non-disclosure agreements; settlements, litigation strategies; liability analysis; defense formation; collection of expert witness testimonies; communication with government officials in countries all over the world; voice mails; dealings with the FBI, USDOJ, DOD, confidential communications, and so much more."
Subsequent to the data breach, The Dark Overlord announced to the public that they designed a compensation plan that would allow for public crowd-funding for its organization to permit the public to view the stolen information in exchange for bitcoin payment. The more public funding it receives, the more stolen sensitive information will be unlocked and released to the public. It is estimated that this cybercriminal group already distributed information to the public on two separate occasions during the month of January 2019.
High profile cybersecurity breaches of law firms is nothing new – for example, the infamous Panama Papers breach, where cybercriminals leaked 11.5 million documents exposing the shadowy business of setting up offshore corporations as tax shelters for businesses, celebrities, and politicians - and the infamous Petya Malware attack which resulted in a digital lockdown of one of the world's largest law firms, DLA Piper. However, despite the infrequency of publicized cyber-attacks of law firms by the media, the FBI has recently announced that law firms should expect an increase in security attacks by cybercriminals because law firms are now viewed as "one-stop shops" for cybercriminals. Therefore, in order to combat the inevitable increase in cyber-attacks, law firms must get prepared.
How Law Firms Can Protect Themselves
All law firms will agree that the most serious consequence of a security breach for their firm would be the unauthorized access to sensitive client data. The American Bar Association's Model Rules of Professional Conduct, specifically Rules 1.1 and 1.62 and related Comments, require an attorney to take competent and reasonable measures to safeguard information relating to their clients. This duty to "safeguard' information imposes a significant challenge to firms when using technology in connection with protecting client information because most law firms are not savvy with technology and lack proper cyber security training.
In order for a law firm to protect itself from security breaches and inadvertently violate its duty of safeguarding a client's sensitive information, it is important to take the following actions:
- Start by taking an inventory and risk assessment of the firm to determine what needs to be protected – the inventory should include both technology and data;
- Develop, implement and maintain an appropriate cybersecurity program that complies with applicable ethical and legal obligations;
- Ensure the cybersecurity program addresses people, policies and procedures, and technology. The cybersecurity program must designate an individual or a group to be in charge and coordinate security;
- Develop an incident response plan scaled to the size of the firm;
- Continually train staff and attorneys to identify and understand potential cybersecurity threats;
- Consider implementing a third-party assessment of firm's cybersecurity program and policies;
- Purchase cyber liability for insurance which not only covers first party losses to law firms (like lost productivity, data restoration, and legal expenses) but also liability protection to third parties;
- Implement authentication and access controls for network, computers and mobile devices used by the firm's staff and attorneys;
- Consider the use of full-drive encryption for computers and mobile devices;
- Have staff and attorneys avoid and/or limit the use of public WiFi when working remotely; and
- Create a disaster recovery plan to backup all data in the event of a cyber-attack or natural catastrophe.
Continually reviewing, implementing, training and updating a firm's cybersecurity program and protocols will help safeguard sensitive and confidential client information and/or data. No law firm wants to be the next data breach headline – so take the necessary steps to avoid a potential disaster.
1 Past ABA Legal Technology Surveys reported 14% in 2016, 15% in 2015, 14% in 2014 and 15% in 2013.
2 On November 1, 2018, California adopted ethics rules patterned after the ABA Model Rules of Professional Conduct.
Ivo Daniele is a seasoned associate in Newmeyer & Dillion's Walnut Creek office. His practice includes representing private and public companies with both their transactional and litigation needs. You can reach Ivo at ivo.daniele@ndlf.com.
About Newmeyer & Dillion
For almost 35 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business law, privacy & data security, employment, real estate, construction, insurance law and trial work, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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When is a Residential Subcontractor not Subject to the VCPA? Read to Find Out
December 01, 2017 —
Christopher G. Hill - Construction Law MusingsThe Virginia Consumer Protection Act (VCPA) can and often does apply to residential construction. The transaction between a residential contractor and an homeowner has been held to fall under the consumer transaction language of the VCPA and on occasion been used to avoid the issues with the economic loss doctrine in Virginia. However, there are limits to how far down the contractual chain the VCPA applies, particularly in the case where a supplier or subcontractor does not provide the services or materials for a personal, consumer purpose.
An example of this fact is found in the case of Johnston v. Stephan. In that case, a couple hired a general contractor to build a home and the general contractor hired Cole Roofing System, Inc. to provide the roof of the home. The first couple subsequently sold the home and the second homeowners sought further work on the roof from Cole Roofing. After Cole Roofing refused further work, the homeowners brought an action seeking to enforce a warranty and for a violation of the VCPA. For the warranty claim, the homeowners relied on the contract between them and the prior homeowners that referenced a 10 year warranty on the roof and the subcontract between the homebuilder and Cole Roofing. Cole Roofing sought dismissal of the VCPA and warranty claims by demurrer and further sought by demurrer to have the matter dismissed as being filed after the running of the statute of limitations.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
No Collapse Coverage Where Policy's Collapse Provisions Deleted
July 26, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court found there was no coverage for the homeowners' collapse claim because the collapse provisions were deleted from the policy. Gueng-Ho Kim v. State Farm Fire & Cas. Co., 2017 U.S. Dist. LEXIS 97871 (D. Conn. June 26, 2017).
The homeowners purchased their home in 2004. They also purchased a homeowners policy from State Farm. In the policy, State Farm deleted the additional coverage for collapse.Also deleted from the policy was language excluding coverage for "collapse, except as specifically provided in Section I - Additional Coverages, Collapse."
The homeowners discovered a problem with the property's foundation when they attempted to sell the house in 2014. The homeowners hired an engineer who found that the interior and exterior foundation had numerous spider-web cracks and the foundation walls in several locations bowed inward by as much as one and a half inches.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
ADA Lawsuits Spur Renovation Work in Fresno Area
November 06, 2013 —
CDJ STAFFThe El Gallo restaurant in Clovis, California has completed more than $45,000 worth of accessibility upgrades, ranging from installing signs for handicap parking to an $8,000 wheelchair-accessible ramp. The restaurant closed in 2010 when they were sued over alleged Americans with Disabilities Act (ADA) violations.
But the El Gallo was only the first Fresno-area business hit with an accessibility lawsuit. And others wanted to avoid getting sued at all. Donald Bremseth, an architect working in Clovis, said that designing modifications to older buildings to bring them into compliance with the ADA has kept him busy, designing dozens of projects in the area.
Daniel Zoldak, vice president of Lars Anderson & Associates, noted at on one inspection, he saw about 50 ADA violations, and with the fines at least $2,000 per violation, $10,000 or $20,000 of renovations doesn’t look so bad. That’s under the new law, which also allows a business 30 days to get into compliance. Under the old law, the minimum fine was $4,000.
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Google’s Biggest Moonshot Is Its Search for a Carbon-Free Future
November 15, 2021 —
Mark Bergen - BloombergGoogle Bay View, the company’s newest campus, consists of three squat buildings nestled near the San Francisco Bay shoreline a few miles east of its headquarters in Mountain View, Calif. The first things visitors notice are the roofs.
They curve down gently from pinched peaks, like circus tents, sloping almost to the ground. Each roof is blanketed with overlapping solar panels that glisten with a brushed metal sheen on the edges. Google calls this design Dragonscale, and indeed it looks as if a mystical beast is curled up by the water in Silicon Valley.
Google envisions its latest campus as the embodiment of a grander ambition to run its operations entirely free of carbon. The company plans to open Bay View in January to “a limited number” of employees, depending on the pandemic. Beneath the buildings, thousands of concrete pillars plunged into the ground will serve as a sort of geothermal battery, storing heat to warm the building and water supply without natural gas. The roof panels were constructed with a unique textured glass to prevent glare and with canopies that emit a soft, glowing light into the spacious atria inside. “We call this the Cathedral of Work,” says Asim Tahir, who oversees energy decisions in Google’s real estate division. He stands by the southern entrance in a hard hat, mask, and safety vest.
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Mark Bergen, Bloomberg
Cincinnati Team Secures Summary Judgment for Paving Company in Trip-and-Fall Case
February 05, 2024 —
Lewis BrisboisCincinnati, Ohio (January 25, 2024) - In a recent decision by the Oldham County Circuit Court, Lewis Brisbois Partner Andrew Weber and Associate Jason Paskan obtained summary judgment for a paving company client after successfully arguing that their client did not owe the plaintiff a duty at the time leading up to her trip and fall. Although the court concluded that there was a genuine issue of fact as to whether a parking space wheel stop actually caused her fall, the court noted that whether the wheel stop “constituted an unreasonably dangerous condition necessitating a duty to eliminate them or warn of them is an entirely different matter.” Rebecca Reynolds v. Baptist Healthcare System, Inc., et al., Oldham Circuit Court Case No. 21-CI-00236, *6 (Dec. 21, 2023).
The plaintiff in Reynolds drove to the hospital with her sister-in-law for medical testing. Id. at * 2. While both had been to the hospital before, due to COVID and construction in the emergency department, they had to take a different entrance into the hospital. Id. In the plaintiff’s attempt to navigate the parking lot, she allegedly tripped over a black wheel stop that was covered by a shadow. Id. The plaintiff sued the hospital as the landowner and the paving company working in the hospital’s parking lot, among others, under the theory that the failure to stripe the wheel stop, closing off spaces with the black wheel stops, or posting warnings about the condition of the parking lot would have prevented her fall. Id. at *2-3.
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Lewis Brisbois