When an Insurer Proceeds as Subrogee, Defendants Should Not Assert Counterclaims Against the Insured/Subrogor
June 14, 2021 —
Gus Sara - The Subrogation StrategistIn a subrogation action, one party is substituted to the rights and remedies of another with respect to a lawful claim. The substituted party (the subrogee) is legally able to pursue any right or seek any remedy that would be available to the subrogor regarding that claim. But can a defendant in a subrogation action assert any claim against the subrogee that it would have against the subrogor? In Federated Mut. Inc. Co. v. Kosciusko County, No. 3:20-CV-960, 2021 U.S. Dist. Lexis 88735, the United States District Court for the Northern District of Indiana considered whether a defendant could assert counterclaims against the insureds/subrogors in an action filed in the name of their subrogee. The court held that since the insurerds/subrogors were not a party to the action and the defendant could assert the substance of its counterclaim as a defense, the defendant could not file counterclaims against the insureds/subrogors in the insurer’s subrogation action.
Kosciusko County arose from a motor vehicle accident involving a semi-tractor trailer owned by Bellman Oil Company, Inc. (Bellman) and B & B Transport, Inc. (B & B). The accident occurred on a highway in Kosciusko County in October of 2019. The accident caused the semi-tractor trailer containing ethanol fuel to roll over four times and burst into flames. Federated Mutual Insurance Company (FMIC) insured Bellman and B & B for the semi-tractor trailer and issued payments as a result of the accident.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
Fort Lauderdale Partner Secures Defense Verdict for Engineering Firm in High-Stakes Negligence Case
June 10, 2024 —
Lewis Brisbois NewsroomFort Lauderdale, Fla. (June 3, 2024) - Fort Lauderdale Managing Partner Cheryl Wilke recently secured a defense verdict for civil engineering firm Gulfstream Design Group and its owner, Matthew Lahti, in a high-stakes professional negligence case in which the plaintiff sought more than $20 million. The verdict by a six-person jury in St. Augustine followed a nine-day trial.
The case involved a 100-acre tract of land in St. Johns County, Florida, owned by the plaintiff, Cynthia Taylor. The land was zoned for rural farming, and she wished to sell the property for development. She entered into a contract with Southeast Georgia Acquisitions (“SGA”) to sell the property with the goal of creating a 200-home subdivision. SGA hired Doug Burnett as land use counsel and our client, Gulfstream Design Group, as the civil engineer to design the project.
In St. Johns County, only a property owner can submit a Planned Unit Development Plan (“PUD”) for the purpose of rezoning. In this case, Burnett and Gulfstream created text and a proposed map for the PUD and submitted it for approval. The PUD was approved first at the staff level, then by planning and zoning and then by the County Commission. All the services were provided prior to closing with PUD approval, a condition of sale.
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Lewis Brisbois
We've Surveyed Video Conferencing Models to See Who Fits the CCPA Bill: Here's What We Found
August 10, 2020 —
Shaia Araghi & Kyle Janecek – Newmeyer DillionWorldwide closures as a result of COVID-19 have resulted in an extreme surge in video conferencing use. This spike in use has also resulted in increased concern about the privacy of these video conferencing applications, including a class action lawsuit against one of the applications: Zoom. Because of this, we took a deeper look into the privacy policies of six prominent video conferencing applications and created a chart showing each video conferencing application's compliance with the California Consumer Privacy Act. Reviewing these materials will provide an awareness of the deficiencies within the Privacy Policies, which can help you become more well-informed about your own rights, and more knowledgeable about any deficiencies in your own business' privacy policy. If these widely-used and widely-known companies can have deficiencies, it is an important way to re-examine and fix these issues in your own.
To determine this, we reviewed the CCPA's twenty requirements for compliance, including: (1) the existence of a privacy policy, (2) required disclosures of information regarding the existence of rights under the CCPA, (3) instructions on how to exercise rights, and (4) providing contact information.
Here are the top 5 discoveries from our review:
1)
No videoconferencing applications address authorized agents. This makes sense, as the treatment of authorized agents were just laid out in the recently finalized regulations. This is a reminder to businesses to utilize these regulations when setting up compliance measures to ensure there is no risk in missing out on requirements like this, which will still be required and enforced by the Attorney General.
2)
Three platforms (WebEx, Skype, and Teams) have separate tabs and pages detailing privacy policies, and don't necessarily have a single unified and simple policy. Because of the accessibility requirements, this means that the privacy policy may not be readily accessible on the business's website, and may open companies to arguments that the entirety of their policy is non-compliant if key portions are hidden or otherwise inaccessible. Therefore to eliminate this concern, keep your policy unified, simple and in one location for ease of viewing.
3)
None of the platforms address information relating to minors under the age of 16, which is notable as some of these platforms have been used for online education. The final regulations outline different treatment for minors from ages 13 to 16, and for minors under the age of 13. As a result, privacy policies focused on compliance with the Children's Online Privacy Protection Act (COPPA) may be insufficient as it only applies to those under 13 years old.
4)
While all of the platforms state that no sale of information occurs, two platforms (Zoom and GoToMeeting) go above and beyond to explain the right to opt-out of sales. This is especially great as the CCPA permits that no notice needs to be given if no sale occurs. By taking this extra step, Zoom and GoToMeeting explain to their users that they have additional rights, which may be necessary as these platforms are also used by other entities, which may collect or otherwise use information collected from a videoconference meeting.
5)
Only one platform (Wire) does not give instructions on how to delete information. The CCPA regulations still require that information regarding instructions on how to delete information be given. The lack of instructions does not relieve Wire from its obligations, and similarly situated businesses may find themselves in a position where they will have to comply with a consumer request, in any form, as the regulations require that a business either comply, or list the proper instructions on how to make the request.
Download the Full Breakdown
To learn more about our findings and how the video conferencing companies stacked up against the CCPA, visit: https://www.newmeyerdillion.com/ccpa-privacy-policy-compliance-videoconferencing-platforms/. We hope this serves as a reminder to everyone to read the privacy platforms for the services you use and update your company's privacy policies to comply with the most recent regulations, as none of these services are currently in complete compliance, and it is only a matter of time before enforcement begins.
Shaia Araghi is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber-related matters, including compliance and prevention that can protect their day-to-day operations. For more information on how Shaia can help, contact her at shaia.araghi@ndlf.com.
Kyle Janecek is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
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Town Concerned Over Sinkhole at Condo Complex
September 24, 2013 —
CDJ STAFFDespite the assurances of their engineering firm, the township of Old Bridge, New Jersey has yet to release the performance bond to the construction of Plaza Grande, a condominium complex for residents over 55. One resident summarized the problem for the Suburban, a newspaper for towns in the area. “Our major concern is a sinkhole near Building 4 that has come back several times.”
D.R. Horton, the developer on the project, has dug out the sinkhole, then backfilled and compacted it. However , one member of the Old Bridge Township Council said that she noticed that the area was beginning to sink again. The council member, Mary Sohor, said that Horton “should’ve dug a little deeper and did a little more.”
D.R. Horton said that the issues do not affect the safety of the residents and attribute them to seasonal wear and tear.
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Withdrawal Liability? Read your CBA
July 10, 2018 —
Wally Zimolong – Supplemental Conditions Withdrawal liability is a huge issue facing unionized employers. According to Bloomberg, 93% of the Top 200 largest pension plans are underfunded by a combined $382 billion. Contractors that withdraw from a multi-employer pension plan can face hundreds of thousands or millions of dollars in assessed withdrawal liability. However, employers may be able to avoid that liability, plus the legal and consulting fees to fight it, by simply reading their collective bargaining agreement.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Cybersecurity on Your Project: Why Not Follow National Security Strategy?
August 28, 2018 —
Rick Erickson - Snell & Wilmer Real Estate Litigation BlogIn its recent Cybersecurity Strategy, the U.S. Department of Homeland Security (DHS) defined “cyberspace” as “the independent network of information technology infrastructure, including the Internet, telecommunications networks, computers, information and communications systems, and embedded processors and controllers.” To DHS, protecting cyberspace includes threats against “federal and nonfederal information systems.” In other words, both private and public interests are at risk. In his 2018 National Defense Strategy, U.S. Department of Defense Secretary, Jim Mattis, essentially concurred in declaring cyberspace a “warfighting domain” and promising to “invest in cyber defense, resilience, and the continued integration of cyber capabilities into the full spectrum of military operations.”
The construction industry is a key player in cybersecurity because contractors, designers and owners are responsible for building and delivering projects providing critical public services like national defense, health care, law enforcement, transportation, and utilities. Like any business reckoning with risks in cyberspace, moreover, everyone on a construction project has valuable data and confidentialities to protect. Cyber breaches on a project may also compromise electrical power, physical safety and, inevitably, a lot more than the critical path schedule and profit margins. Cybersecurity insurance is not very affordable or comprehensive, either, and it usually excludes any property damage or bodily injury resulting from a cyber event.
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Rick Erickson, Snell & WilmerMr. Erickson may be contacted at
rerickson@swlaw.com
COVID-19 Response: Key Legal Considerations for Event Cancellations
March 30, 2020 —
Michael G. Platner, Solomon B. Zoberman, & Jane C. Luxton - Lewis BrisboisEvery passing day brings stark new reports of novel coronavirus (COVID-19) cases and increasing numbers of cancelled conventions, concerts, and other major events. Both the hospitality and travel industry on the one hand, and organizations that are canceling events on the other, are scrambling to understand the legal consequences of these costly terminations. Cancellation fees can be breathtaking, and affected parties are quickly learning that there are no simple answers as to whether a disease outbreak of this scope and scale falls within force majeure (or Act of God) clauses that either do not explicitly list, or arguably may never have contemplated, circumstances of this type.
Generally, force majeure clauses excuse parties’ performance under a contract when circumstances that are beyond their control arise and prevent them from fulfilling their obligations. The party electing to enforce its rights under the force majeure clause must show that the triggering event qualifies as a force majeure event, and that the event has rendered the party’s performance impossible or impracticable.
Reprinted courtesy of Lewis Brisbois attorneys
Michael G. Platner,
Solomon B. Zoberman and
Jane C. Luxton
Mr. Platner may be contacted at Michael.Platner@lewisbrisbois.com
Mr. Zoberman may be contacted at Solomon.Zoberman@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com
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An Overview of the New EPA HVAC Refrigerant Regulations and Its Implications for the Construction Industry
September 30, 2024 —
Stefanie A. Salomon, Nadia Ennaji & Ali Heyat - Peckar & Abramson, P.C.The U.S. Environmental Protection Agency (EPA) recently announced a series of significant changes to the rules governing the use of refrigerants in heating, ventilation, and air conditioning (HVAC) systems. These changes, which were promulgated under the American Innovation and Manufacturing (AIM) Act, are designed to phase down the use of hydrofluorocarbons (HFCs), a class of potent greenhouse gases.
The AIM Act: A Game-Changer for HVAC Industry
The recent changes to refrigerant regulations by the EPA signify a substantial shift in environmental policy that will have profound implications for the construction industry. For the construction industry, this means a transition to next-generation technologies that do not rely on HFCs. The AIM Act’s sector-based restrictions will affect a wide range of equipment, including refrigeration and air conditioning systems integral to building design and function.
Starting January 1, 2025, the manufacturing or importing of any product in specified sectors that uses a regulated substance with a global warming potential of 700 or greater is prohibited (40 C.F.R. § 84.54(a)). The specified sectors listed include R-410A, the most common refrigerant used in the HVAC industry. The installation of systems using a regulated substance with a global warming potential of 700 or greater in specified sectors is allowed until January 1, 2026, provided that all system components are manufactured or imported before January 1, 2025. See 40 C.F.R. § 84.54 (c). “Installation” of an HVAC system is defined as the completion of assembling the system’s circuit, including charging it with a full charge, such that the system can function and is ready for its intended purpose. See 40 C.F.R. § 84.52.
Reprinted courtesy of
Stefanie A. Salomon, Peckar & Abramson, P.C. and
Nadia Ennaji, Peckar & Abramson, P.C.
Ms. Salomon may be contacted at ssalomon@pecklaw.com
Ms. Ennaji may be contacted at nennaji@pecklaw.com
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