NY Appellate Court Holds Common Interest Privilege Applies to Parties to a Merger
January 07, 2015 —
Jay Shapiro, Lori S. Smith and Brittney Edwards – White and Williams LLPThe common interest privilege is a doctrine that operates to maintain the confidentiality of communications between parties and counsel that have aligned interests. It is designed to encourage the free flow of information between these parties, and has historically been utilized primarily in the context of litigation. However, in Ambac Assurance Corp., et al. v. Countrywide Home Loans, Inc., et al., the New York Supreme Court, Appellate Division, First Department recently expanded the common interest privilege by holding that it is applicable in transactional contexts. 2014 WL 6803006, No. 651612/10 (1st Dep’t 2014). The Ambac court defined the common interest doctrine as “a limited exception to waiver of the attorney-client privilege” when a third party is present during a communication between an attorney and his or her client. The doctrine shields such communications from disclosure when they are (1) protected by the attorney client privilege and (2) “made for the purpose of furthering a legal interest or strategy common to the parties.”
Until Ambac, New York courts touched on, but never squarely addressed, whether a third requirement must be satisfied before the common interest doctrine can be invoked: “that the communication must affect pending or reasonably anticipated litigation.” The Ambac court addressed and rejected this purported third requirement while reversing the decision of the trial court which found that defendant Bank of America failed “to cite any New York case that applied the common-interest doctrine outside of either joint-representation of two parties by one attorney, or where parties reasonably anticipated litigation.”
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Jay Shapiro,
Lori S. Smith and
Brittney Edwards
Mr. Shapiro may be contacted at shapiroj@whiteandwilliams.com
Ms. Smith may be contacted at smithl@whiteandwilliams.com
Ms. Edwards may be contacted at edwardsb@whiteandwilliams.com
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Construction Workers Face Dangers on the Job
November 18, 2011 —
CDJ STAFFOSHA calculates that for each 33,000 active construction workers, one will die on the job each year, making their risk over the course of their careers at one out of every 200 workers. This puts it many times over OSHA’s definition of “significant risk” of 1 death per 1,000 workers over the course of their careers. According to an article in People’s World, “the main risk of death is from falls.”
At a talk at the American Public Health Association’s meeting, one expert noted that “construction workers make up 6 percent to 8 percent of all workers, but account for 20 percent of all deaths on the job every year.”
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New Jersey/New York “Occurrence”
July 30, 2014 —
Scott Patterson – CD CoverageIn National Union Fire Insurance Co. of Pittsburgh, PA v. Turner Construction Co., 986 N.Y.S.2d 74 (N.Y. App. Div. 2014), Turner was the general contractor for a high rise office building constructed in New Jersey for owner GSJC. Turner subcontracted with Permasteelisa for the building’s exterior curtain wall which consisted of granite and glass with an attached network of decorative pipe rails. A segment of the pipe rails fell from the building onto the street. GSJC determined that a significant percentage of the pipe rail connections to the curtain wall did not conform to specifications or were defective. GSJC sued Turner and Permasteelisa in New Jersey state court for breach of contract, breach of warranty, and negligence, seeking damages for the damage to the curtain wall and the danger of additional pipe rail falling in the future. National Union, which had issued an OCIP policy for the project, defended Turner and Permasteelisa under a reservation of rights and then filed a declaratory judgment action in New York state court. The New York trial court entered judgment for National Union. On appeal, the intermediate court of appeals affirmed. As to choice of law, the court stated that “it is undisputed that the law of New Jersey governs this action, which turns on insurance policy interpretation, and that New Jersey and New York law are consistent as to the issues in dispute here.”
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Scott Patterson, CD Coverage
Delaware Settlements with Minors and the Uniform Transfer to Minor Act
October 15, 2014 —
Stephen J. Milewski – White and Williams LLPAs a Delaware lawyer, one of the most frequently asked questions I get from insurance clients is: “Do all personal injury settlements with minors need to be approved by the Court?” The answer is and always has been yes. This is true regardless of the amount of the settlement. There have, however, been some recent changes under Delaware law which may help facilitate the process and even reduce the costs associated with settling small tort cases with minors. Traditionally, when settling cases with a minor, a Petition would be filed with the trial court (Superior Court) and then a hearing would be scheduled for the parties to present to the Court the terms of the settlement, explain the plaintiff’s injuries and itemize the fee breakdown. This would be the settlement approval process. After that, the plaintiff would be required to have a guardian appointed over the proceeds, which had to be approved by Chancery Court (Delaware’s Court of Equity). The purpose of this process was to ensure the settlement money going to the minor was managed properly; the net proceeds were generally placed into a bank account not to be used by the guardian or the minor until the minor reached the age of majority. To both the plaintiff, and the insurance carrier paying out the settlement, this process was burdensome and added disproportionate costs to small settlements.
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Stephen J. Milewski, White and Williams LLPMr. Milewski may be contacted at
milewskis@whiteandwiliams.com
Design Professionals Owe a Duty of Care to Homeowners
July 09, 2014 —
Stephen A. Sunseri - Gatzke Dillon & Ballance LLPToday, the California Supreme Court, in Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP (Jul. 3, 2014, S208173) __Cal.4th__ [2014 WL 2988058], held that architects owe a duty of care to future homeowners of residential buildings, particularly if they act as principal architects on a project, and are not subordinate to any other design professional. Until now, design professionals were rarely held liable, if at all, for third-party claims for design deficiencies.
In Beacon, architectural and engineering firms provided sole design services for The Beacon residential condominium project, a 595 unit project located in San Francisco. The condominiums were initially leased after construction, but were eventually sold to individual owners. The design firms claimed their role was limited to only providing design recommendations to the project's owner, who ultimately controlled and directed which design elements to construct. Not long after completion of the project, the homeowners' association sued the design firms (among others) for construction defects and damages related to alleged water infiltration, inadequate fire separations, structural cracks, and other purported safety hazards. The claims included allegations under SB 800 (the "Right to Repair Act," Civil Code §895, et seq.) and common law negligence theories.
The design firms demurred to the complaint, which the trial court sustained. On appeal, however, the Court of Appeal reversed the trial court's ruling, concluding that the design firms owed a duty of care to third parties. The Supreme Court affirmed.
Historically, liability for deficient goods and services hinged on whether there is a contractual relationship between a buyer and seller. However, the Supreme Court recognized that in certain circumstances a contractual relationship is not required. In its ruling, the Supreme Court relied on fifty year old precedent, Biankanja v. Irving (1958) 49 Cal.2d 647. In Biankanja, the California Supreme Court outlined several factors to determine whether a duty of care is owed to non-contracting third parties. Although Biankanja analyzes many factors, emphasis was placed placed on whether a purported harm was foreseeable by a defendant's conduct and how close of a connection there is between that conduct and an injury.
Here, the Court recognized that even though the design firms did not actually build the project, they did conduct weekly inspections, monitored contractor compliance, altered design elements when issues arose, and advised the owners of any nonconforming work. In applying the Biankanja factors to these circumstances, the Supreme Court determined the homeowners were intended beneficiaries of the design work and the design firms' primary role in the project bore a close connection to the alleged injuries. As a result, the Supreme Court held that the allegations in the complaint were sufficient and, if proven, establishes the defendants owed a duty of care to the homeowners' association.
Interestingly, the Supreme Court sidestepped the issue of whether SB 800 was intended to exclusively capture design defects in its scope, even though the Court indicated it may. Nevertheless, the Supreme Court's ruling is significant. The case will affect how design professionals allocate risk on future residential projects, perhaps by raising design prices or insuring around the liability exposure. The likely outcome, however, is that design professionals are now targets in construction defect lawsuits.
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Stephen A. Sunseri, Gatzke Dillon & Ballance LLPMr. Sunseri may be contacted at
ssunseri@gdandb.com
Although Property Damage Arises From An Occurrence, Coverage Barred By Business Risk Exclusions
July 08, 2011 —
Tred R. Eyerly - Insurance Law HawaiiThe homeowners hired the insured to raise the structure of their home twenty-four inches above the flood zone. Lafayette Ins. Co. v. Peerboom, 2011 U.S. Dist. LEXIS 58985 (S.D. Miss. June 2, 2011). When the insured’s crew returned from lunch one day, they found the house had fallen from hydraulic jacks being used to raise the structure a few inches at a time. There was substantial damage to the entire structure.
The homeowners sued, asserting several claims, including negligence and breach of contract. The complaint alleged the homeowners entered a contract with the insured to raise their structure while maintaining its integrity. However, the insured failed to use proper equipment, which caused the house to fall and be completely destroyed.
The insured tendered the claim to its insurer, Lafayette Insurance Company. Lafayette defended under a reservation of rights and filed suit for a declaratory judgment. Lafayette’s subsequent motion for summary judgment contended there was no “occurrence” alleged in the underlying complaint and, even if there was, the business risk exclusions barred coverage.
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com
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Wearable Ways to Work in Extreme Heat
July 15, 2024 —
Clare Epstein - Construction ExecutiveEarth experienced its hottest months yet in summer 2023, and
NASA scientists are expecting 2024 to be even hotter. Rising temperatures and high humidity aren’t just uncomfortable for those outside during the summer months: They can cause serious health consequences, including death. While employers are working to find ways to combat the heat, the extreme variability in weather conditions continues to pose threats to employees.
Recently, company leaders have turned to new methods and technologies to help their teams stay safe while working both indoors and outdoors. A balance of methods and technology is necessary to keep everyone safe while they work. As summer approaches, is important to remember that the time to review and update current heat-stress safety plans is in the spring—or better yet, year-round—in order to prioritize employee safety and determine both proactive and reactive measures needed to withstand the hottest months of the year.
TRIED AND TRUE
While we are all navigating new ways of working safely in extreme temperatures, the tried-and-true measures are still extremely useful in preventing heat stress among employees. Employers can support their employees working outdoors by ensuring there are proper amenities available at all times, including shady areas, a water source and electrolyte drinks.
Reprinted courtesy of
Clare Epstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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40 Year Anniversary – Congratulations Ed Doernberger
November 23, 2016 —
Tracy Alan Saxe - Saxe Doernberger & Vita, P.C.Forty years ago, on the Big Island of Hawaii,
Edwin L. Doernberger was sworn in as an attorney. Fifteen years ago, Ed rejoined two former partners to help build an exciting new boutique insurance policyholder practice. Today, Saxe Doernberger & Vita is pleased to celebrate the 40th anniversary of its most distinguished partner.
“Ed’s energy and enthusiasm are undiminished,” said co-founder and Managing Partner, Tracy Alan Saxe. “He’s still one of the firm’s most active litigators.” Ed has extensive appellate experience, having argued before the Connecticut and Hawaii Supreme and Appellate Courts, New York Appellate Courts, and the Second and Ninth Circuits.
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Tracy Alan Saxe, Saxe Doernberger & Vita, P.C.Mr. Saxe may be contacted at
tas@sdvlaw.com
