Appellate Court Endorses Discretionary Test for Vicarious Disqualification of Law Firms Due To New Attorney’s Conflict
February 07, 2018 —
David W. Evans and Stephen M. Tye – Publications & Insights In
California Self-Insurer’s Security Fund et al. v. The Superior Court of Orange County (1/26/2018 – No. G054981), the Fourth Appellate District considered whether vicarious disqualification of a law firm is mandatory or discretionary where an attorney with a conflict joins a firm and the firm enacts an ethical screen to prevent transmission of confidential information between the new attorney and the rest of the firm.
This case arose from an effort by the California Self-Insurer’s Security Fund (the “Fund”) to be reimbursed for workers’ compensation benefits advanced on behalf of the Healthcare Industry Self-Insurance Program (the “Program”). The Fund hired Nixon Peabody LLP (“Nixon Peabody”) to represent it in connection with this matter. In November 2013, represented by members of Nixon Peabody’s San Francisco office, the Fund filed a lawsuit naming 304 members of the Program as defendants. Approximately 170 defendants have since settled.
Two of the non-settling defendants (“Moving Parties”), were represented by Michelman & Robinson, LLP (“M&R”). From approximately 2009 until February 1, 2017, attorney Andrew Selesnick served as Chair of M&R’s Health Care Department at the firm’s Los Angeles office, managing a team of attorneys who represented clients in the healthcare industry. Commencing in 2014, a team of four attorneys at M&R, including Selesnick, represented the Moving Parties and four other defendants, the latter of whom have since settled. Selesnick was actively involved, including participating in a confidential discussion pertaining to Moving Parties’ liability and damages and receiving many e-mails containing communications about the common defense of the remaining 170 defendants.
Reprinted courtesy of
David W. Evans, Haight Brown Bonesteel and
Stephen M. Tye, Haight Brown Bonesteel
Mr. Evans may be contacted at devans@hbblaw.com
Mr. Tye may be contacted at stye@hbblaw.com
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Missouri Legislature Passes Bill to Drastically Change Missouri’s “Consent Judgment” Statute
August 10, 2021 —
Jason Taylor - Traub Lieberman Insurance Law BlogOn June 29, 2021, Missouri Governor Mike Parson signed SB-HB 345 into law, which will drastically change Section 537.065 of the Missouri Revised Statutes. Section 537.065 provides an insured who has been denied insurance coverage a statutory mechanism to settle certain tort claims through an agreement akin to a consent judgment. Typically referred to as a “065 Agreement,” the statute allows a plaintiff and insured-tortfeasor to settle a claim for damages and specify which assets are available to satisfy the claim, typically the tortfeasor’s available insurance policy. In the past, such agreements were often accomplished without the insurer’s participation or even its knowledge. Under such agreements, the insured-tortfeasor assigns all rights to the insurance policy to the plaintiff and agrees not to contest the issues of liability or damages. In exchange the plaintiff agrees not to execute any judgment against the insured. The parties conduct what amounts to an uncontested and often “sham” trial resulting in a judgment far in excess of any actual damages or applicable policy limits had the case been contested. In a subsequent proceeding to collect on the judgment, the tortfeasor’s insurer is bound by the determinations of liability and damages made in the underlying action.
This statutory framework presented plenty of opportunities for abuse. In 2017, the statute was amended in order to address some of those issues, including a requirement that the insured provide notice of a settlement demand under Section 065 and providing insurers a limited right to intervene in the tort action before liability and damages have been determined. Ostensibly, the intent of the 2017 amendments was to reduce the number of large and uncontested judgments and allow the insurance carrier an opportunity to continue litigating the injured party’s claim where the insured has no incentive or is contractually prohibited from doing so. Yet, creative plaintiff’s attorneys found several “loopholes” around these changes, most prominently, by moving their disputes from state court to binding arbitration and dispensing with notice to the insurer altogether, or at least until after the arbitration has concluded.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Are Proprietary Specifications Illegal?
April 11, 2018 —
Wally Zimolong – Supplemental Conditions A friend came to me with a question regarding a case he was working: “can a public owner require that bidders use a specific brand name product?” “Of course not,” I said “proprietary specifications are illegal.” Or, at least that’s what I assumed. To my surprise, the law in the Commonwealth of Pennsylvania is not as clear as it is in other jurisdictions.
What is a proprietary specification?
A proprietary specification lists a product by brand name, make, model and/model that a contractor must (shall) utilize in construction. A basic example of a proprietary specification would state:
“Air Handlers shall be “Turbo Max” as manufactured by Chiller Corp.”
There are two problems with a proprietary specification (other than potentially being illegal): (a) they limit competition, and (b) invite steered contract awards. They limit competition because it limits the type of material that can be used on the project. In the example above, there could be equivalent air handlers available at a better price but the contractor could not use that lower priced product in its bid. Thus, the taxpayers end up paying more for tile. Also, contractors may not be able to secure a certain brand name product because of exclusive distribution agreements. Again, using the example above, contractor A’s competitor may have the exclusive distribution agreement with Chiller Corp.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Andrea DeField Recognized In 2024 List of Influential Business Women By South Florida Business Journal
February 19, 2024 —
Hunton Insurance Recovery BlogWe are pleased to announce that Hunton Andrews Kurth LLP insurance coverage partner Andrea DeField was named to the
South Florida Business Journal’s 2024 list of Influential Business Women. The award celebrates 25 women who have a strong record of leadership, performance and innovation in their industry, as well as meaningful community involvement. This distinction is well-deserved given Andi’s leadership in the cyber insurance space, contribution to the firm’s pro bono efforts, and longstanding record of community involvement in South Florida.
Andi and the other honorees will be featured in the March 15 special issue of the South Florida Business Journal introducing the Influential Business Women of 2024. Congratulations Andi!
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Hunton Andrews Kurth LLP
New Index Tracking Mortgages for New Homes
June 18, 2014 —
Beverley BevenFlorez-CDJ STAFFThe National Association of Home Builders’ Eye on Housing reported that the Mortage Bankers Association (MBA) completed their Builder Application Survey (BAS), which demonstrated that “mortgage applications for new home purchases decreased by a not seasonally adjusted monthly rate of 8.4% in May 2014. However, on a 12-month basis, mortgage applications for new home purchases in May 2014 were 4.9% higher than their level in May 2013.”
According to Eye on Housing, “This is the fifth consecutive month of year-over-year increases in mortgage applications for new home purchases.”
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Nebraska Joins the Ranks—No CGL Coverage for Faulty Work
September 17, 2014 —
Craig Martin – Construction Contractor AdvisorThe Nebraska Court of Appeals has ruled that a home builder that fails to adequately compact the soil does not have insurance coverage to repair damages to the home caused by the settling soil. In “insurance speak”, there was no occurrence to trigger coverage.
In this case, Cizek Homes, Inc. v Columbia National Insurance Company, a home builder contracted with a buyer to build a house. A lot was selected and the home was built. After the buyer moved in, the house started to settle, causing damage to the house. The buyer told the builder about these problems and the builder agreed to fix the problems. The builder also contacted its insurance company and requested coverage for the buyer’s claim. The insurer rejected the claim, determining that the buyer’s claim was not covered by the builder’s Commercial General Liability (CGL) insurance.
The insurer then filed suit asking the court to interpret the insurance policy and to determine whether the CGL insurance covered the claim. The court looked to the buyer’s allegations that the builder failed to construct the home in accordance with accepted construction and industry standards and that the builder was negligent in designing and constructing the home. The builder admitted that it was obligated to pay for the costs of repairs, but denied that it was negligent in constructing the home.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
William Lyon to Acquire RSI Communities
February 22, 2018 —
Dave Suggs - CDJ STAFFAccording to the article “William Lyon Agrees to Buy RSI Communities $460 million deal plants Lyon in Texas and adds to Inland Empire land holdings” published on the website Builder, the Newport Beach home builder is purchasing the Southern California and Texas home builder. This will be Lyon Homes’ first venture in the state of Texas.
RSI Communities works within both San Antonio and Austin, Texas as well as Southern California and the Inland Empire. It was founded by Todd Palmaer, a home building expert and Ron Simon, a building products expert and Newport Beach businessman. First time home buyers have been RSI’s main target.
President and CEO of RSI, Tod Palmaer is optimistic about the acquisition “We are delighted to have our company join the William Lyon Homes organization. We have a great deal of confidence in the William Lyon Homes platform and its executive management team, and believe that its acquisition of RSI Communities will add to Lyon’s continued success in its current and new markets.”
Pat Donahue who has almost 30 years of experience in home building, will serve as President to the Inland Empire Division. John Bohnen, RSI’s present Chief Operating Officer, will be the regional president in Texas. Mr. Bohnen has previously held executive positions with numerous home builders. William Lyon’s president and CEO Mark R. Zaist is excited about adding RSI’s key players to their team, and had this to say about the purchase. “The acquisition of RSI represents our most significant acquisition since our entry into Portland and Seattle with the Polygon Northwest Homes acquisition in 2014 and furthers our strategy of building in the strongest markets in the Western U.S., while also strengthening our pipeline in Southern California, as we continue our mission of being the premier Western Regional home builder.”
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Environmental Regulatory Provisions Embedded in the Infrastructure Investment and Jobs Act
January 03, 2022 —
Anthony B. Cavender - Gravel2GavelWith the enactment of this important legislation, its impact on environmental regulation and policy will be carefully analyzed by the regulated community. Such a review may be hampered by the fact that the law is not only complex but also very long (over 2000 pages!). The Infrastructure Act is mostly an appropriations and authorization law, but it includes many new policy choices. This is a brief review (which can only scratch the surface of this law) of some of the many environmentally related provisions, which are part of this new law and can be located in the pdf version of the law.
The law is composed of nine separate divisions, which are further divided into separate titles and subtitles. Division A is entitled “Surface Transportation”; Division B is the “Surface Transportation Investment Act of 2021”; Division C is “Transit”; Division D is “Energy”; Division E is “Drinking Water and Wastewater”; Division F is “Broadband”; Division G is “Other Authorizations”; Division H is “Revenue Provisions”; Division I is “Other Matters”; Division J is “Appropriations”; and Division K is “Minority Business Development.”
It is somewhat bewildering on first reading, as befits a law that is expressing the manifold policy decisions made by the Congress.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
