Florida Decides Against Adopting Daubert
January 28, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Delisle v. Crane Co., 2018 Fla. LEXIS 1883, 43 Fla. L. Weekly S 459, the Supreme Court of Florida reaffirmed that the appropriate test for admissibility of an expert opinion about new or novel scientific evidence is the “Frye” test, not the “Daubert” test.
As result of developing mesothelioma, Richard Delisle sued sixteen defendants, including Crane Company (Crane) and R.J. Reynolds, claiming that each exposed him to asbestos, which is a leading cause of mesothelioma. At trial, Crane and R.J. Reynolds sought to preclude the expert opinions of Mr. Delisle’s causation experts. The trial denied the motions and the jury awarded Mr. Delisle $8 million.
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Rahul Gogineni, White and WilliamsMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
A Deep Dive Into an Undervalued Urban Marvel
December 26, 2022 —
Linda Poon - BloombergDeep beneath the city, an intricate network of pipes and pumps carries our waste to treatment facilities. Ideally, the entire process is hidden from the eyes — and nose — of the urban dweller who, from the moment the toilet flushes, remains blissfully unaware of what it takes to direct billions of gallons of wastewater out of a city.
The development of sewer infrastructure is one of the perks of modern urban living, rendering the consequences of our daily habits out of sight, out of mind — until it doesn’t.
In the US and beyond, many sanitation systems date back to the early 20th century or earlier, and they’re showing their age: Increasingly heavy downpours as a result of climate change often overwhelm antiquated combined sewers that collect stormwater as well as wastewater, while leaky pipes and trash-laden clogs bring stinky backups that can poison local waterways. But as cities scramble to repair and update their networks, another challenge lurks: Getting people to stop taking for granted a public good that’s essential but invisible.
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Linda Poon, Bloomberg
OSHA Releases COVID-19 Guidance
June 15, 2020 —
L. Stephen Bowers & Joshua Tumen - White and Williams LLPThe United States Department of Labor’s Occupational Safety and Health Administration (OSHA) ensures safe and healthful working conditions for employees by setting and enforcing standards and by providing training, outreach, education and assistance.
The COVID-19 outbreak has increased demand for N95 filtering face piece respirators (N95 FFRs), limiting availability for workers in healthcare and emergency response. On April 3, 2020, OSHA issued interim guidance for employers to combat the supply shortages of N95 FFRs and to comply with the respiratory protection standard (29 CFR § 1910.134). This guidance will remain in effect until further notice and applies in all industries.
Employers must continue to manage their respiratory protection programs and be mindful of N95 FFR shortages. Specifically, employers should identify and evaluate respiratory hazards in the workplace, and develop and implement written respiratory protection programs. Businesses should reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 FFRs. Some examples provided in the guidance include using portable local exhaust systems or moving operations outdoors. Employers may also consider temporarily suspending non-essential operations, to the extent such operations are not already suspended due to state mandates.
Reprinted courtesy of
L. Stephen Bowers, White and Williams LLP and
Joshua Tumen, White and Williams LLP
Mr. Bowers may be contacted at bowerss@whiteandwilliams.com
Mr. Tumen may be contacted at tumenj@whiteandwilliams.com
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Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.
November 21, 2022 —
Christian Fernandez - Snell & Wilmer Real Estate Litigation BlogLiquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to in a variety of ways, such as “earnest money,” a “good-faith deposit,” or a “non-refundable deposit,” but each typically denote a negotiated amount of money that a seller is entitled to retain should a buyer breach a purchase and sale agreement. The purpose of liquidated damages is to provide the parties with certainty when actual damages arising from a breach of contract may be difficult to calculate. Accordingly, liquidated damages provisions alleviate the need for potentially expensive litigation associated with proving damages.
While parties are free to negotiate the amount of liquidated damages, the amount must approximate the loss anticipated at the time of contracting, or the loss that actually occurs as a result of a breach. Arizona courts have held that where the amount of liquidated damages is unreasonably large when compared to the anticipated loss or actual loss, the liquidated damages provision is unenforceable as a penalty. A breaching party faced with high liquidated damages will often seek to invalidate the provision as a penalty. If a court agrees, the non-breaching party may still recover damages, but must go through the process of proving such damages. Therefore, when negotiating a real estate contract, consideration should be given as to whether a liquidated damages amount is arbitrarily high when compared to an anticipated loss in the event of a breach.
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Christian Fernandez, Snell & WilmerMr. Fernandez may be contacted at
cfernandez@swlaw.com
Coverage Article - To Settle or Not To Settle?
September 20, 2017 —
Tred R. Eyerly - Insurance Law HawaiiMy colleagues Rina Carmel, Karin Aldama and I authored an article entitled, "To Settle or Not to Settle? Bad-Faith Implications in Resolving Underlying Actions." The article appears in the current edition of Coverage, published by the Insurance Coverage Litigation Committee of the ABA. The article is here.
The article addresses the obstacles faced when settling liability claims. The insurer and insured may have fundamental disagreements on whether to settle or how much to pay in settlement. Should the insured contribute to the settlement? Whether the insurer should seek from the policyholder, or the policyholder offers to make, a settlement contribution presents thorny issues, including whether such a contribution can convert an excess demand into a demand within limits—which, in turn, affects the standard for evaluating the insurer’s response to the third-party demand. On the other hand, the policy holder may not want to settle and set a bad precedent.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Utility Contractor Held Responsible for Damaged Underground Electrical Line
October 11, 2017 —
Brett M. Hill - Ahlers & Cressman, PLLCThe Washington State Court of Appeals recently addressed an excavation contractor’s responsibilities under the Underground Utilities Damage Prevention Act (UUDPA), RCW 19.122. That statute was enacted in 2011 and imposed certain statutory duties on parties involved with projects requiring excavation.
In this case, Titan Earthworks, LLC contracted with the City of Federal Way to perform certain street improvements including installation of a new traffic signal. During the process of excavating for the traffic signal, Titan drilled into an energized underground Puget Sound Energy power line. PSE sought damages from Titan and Titan sued the City of Federal Way.
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Brett M. Hill, Ahlers & Cressman, PLLCMr. Hill may be contacted at
bhill@ac-lawyers.com
David McLain Recognized Among the 2021 Edition of The Best Lawyers in America© for Construction Law
October 19, 2020 —
David M. McLain – Colorado Construction LitigationDavid McLain is a founding member of Higgins, Hopkins, McLain & Roswell. Mr. McLain has over 22 years of experience and is well known for his work in the defense of the construction industry, particularly in the area of construction defect litigation. He is a member of the Executive Committee of the CLM Claims College - School of Construction, which is the premier course for insurance, industry, and legal professionals. Law Week Colorado recently named Mr. McLain as the 2019 People’s Choice for Best Construction Defects Lawyer for Defendants.
HHMR is highly regarded for its expertise in construction law and the litigation of construction-related claims, including the defense of large and complex construction defect matters. Our attorneys provide exceptional service to individuals, business owners, Fortune 500 companies, and the insurance industry. The firm is experienced in providing legal support throughout trials and alternative dispute resolution such as mediations and arbitrations.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Colorado Court of Appeals Decides the Triple Crown Case
January 17, 2014 —
Berkeley W. Mann, Jr. – Higgins, Hopkins, McLain & Roswell, LLCIn an earlier blog post, I discussed the case of Triple Crown Observatory Village Assn., Inc. v. Village Homes of Colorado, Inc., et al (2013 WL 5761028) because it presented the rare case where the Colorado Court of Appeals accepted an interlocutory appeal. Notably, the interlocutory appeal resulted from dismissal of the HOA case in which the trial judge directed the parties to arbitrate in lieu of a jury trial, under the declaration of covenants, conditions, and restrictions that governed the community. The Court of Appeals decided the case on its merits on November 7, 2013, and its decision can be found at 2013 WL 6502659. (Note: this presently unpublished opinion may be subject to further appeal to the Colorado Supreme Court.)
The case resulted from an attempt by the HOA’s counsel to amend the mandatory arbitration provisions of the declarations before it filed suit. This amendment process took the form of soliciting signature votes of homeowners on a revocation resolution to repeal the specific provisions of the declarations that provided mandatory, binding arbitration as the sole remedy for disputes between the HOA and the developer and/or general contractor. The declarations required that 67% of homeowners vote in favor of amendment in order to modify the declarations.
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Berkeley W. Mann, Jr., Higgins, Hopkins, McLain & Roswell, LLCMr. Mann may be reached at
mann@hhmrlaw.com