Somewhere out in Hanoi a rooster crows incessantly To be honest, of the three countries we visited on the LEAD 31 International Seminar, Vietnam was my favorite. At its core, Hong Kong is similar to almost any other international metropolis. Hanoi and Ho Chi Minh City, on the other hand were completely different than anything I had ever experienced. Hanoi Upon leaving Hong Kong, we flew into rain [...]
On a 93-62 vote, the Missouri House passed a measure yesterday to reinstate that state's cap on non-economic damages in medical malpractice cases. The cap had been declared unconstitutional by the Missouri Supreme Court last summer. In that decision, the Missouri Supreme Court held that the cap violated the right to trial by jury found in the Missouri Consititution. The Court found that, because there was a common law right [...]
As I've mentioned in earlier posts, the Department of Labor has stepped up enforcement of the rules distinguishing between independent contractors and employees. Now, the Department of Labor has targeted certain industries for worker misclassification investigations. These industries include: Drywall Landscaping Cleaning Companies Property Management A quick search of Department of Labor settlements shows that this not an idle threat. A Minneapolis general contractor agreed to pay $430,000, even though the wage [...]
{This is a periodic column on unique, nerdy and fascinating questions posed by my fastidious readers. If you have a burning insurance or indemnity issue that you want me to address, drop me a line. I will research and write about it in a future post.} DOES AN UNDERGROUND RESOURCES & EQUIPMENT ENDORSEMENT (CG 22 62 10 01) TRULY CONFLICT WITH A CGL POLLUTION EXCLUSION CLAUSE? An Underground Resources & Equipment Exclusion Coverage (UREC) [...]
On December 20, 2012, the Florida Supreme Court expanded the already far reaching scope of doctor-patient confidentiality. In the case of Hasan v. Garvar, 2012 WL 6619334 (Fla.), a patient sued a dentist (referred to as Dentist #1 for purposes of this post) after the dentist failed to diagnose and treat a dental condition resulting in a bone infection. The patient subsequently sought treatment from a second dentist. (Dentist #2). Dentist [...]
The U.S. Citizenship and Immigration Services (USCIS) finally released the new Employment Eligibility Verification, Form I-9. You might recall that the USCIS published a draft of the new I-9 form almost a year ago. After reviewing over 6,000 comments on the proposed form, it was finally released this month. Here are some of the changes to new form: The new I-9 form is now two pages The instructions are expanded There are [...]
Most Midwest states have a statute the bars indemnity for construction related projects. Iowa, Kansas and Missouri do not. However, Nebraska, North Dakota, South Dakota and Minnesota do. All parties to any contract that involves any type of construction or design must be aware of these statutes. If not, AIA or other standard contract provisions on indemnity may not be upheld or enforceable in a court of law. Is there [...]
Oregon recently passed a law, Senate Bill 483, creating a new mediation process for patients injured by medical mistakes. The law allows injured patients to confidentially discuss, at a mediation, their claim and a possible settlement with the medical provider where the alleged negligence occurred. What is the upside to this bill? Participation is obviously voluntary. Most significantly, the discussions would not be admissible in court if a lawsuit is [...]
The Engineers Joint Contract Documents Committee ("EJCDC") will be issuing its latest construction contracts on March 18, 2013. These revised contracts contain significant modifications, but two major changes involve the change-order process and insurance. Change Orders The new contracts strive to resolve conflict quickly. To expedite claim resolution, a new step has been added in which a requested change is first labeled as a change proposal, not a change. The [...]
It appears that the sequester cuts are going to impact the construction industry pretty dramatically. There will be mandatory cuts to defense and non-defense categories that could add up to more than $4 billion dollars. According to the Engineering News Records article, Sequester Construction Spending Cuts Total More Than $4 Billion, the programs suffering the largest cutbacks will be military construction, the Department of Energy’s environmental cleanup programs at former [...]
♣WE ARE GREEN TODAY FOR ST. PATRICK’S DAY!♣ We can fairly sum up the history of pollution insurance coverage with one word: confusion. This is because underwriters and ISO forms have made it pretty clear that almost all pollution and environmental losses are not covered; yet courts have found creative ways to insist that they are a covered loss. This push and pull has left most of us confused as to whether or not it [...]
LDM attorneys, led by Mark Novotny, Pat Vipond and Cathy Trent-Vilim, recently secured a $33.5 million settlement for a large commercial client in a highly complex and contentiously-litigated matter. Over the course of the three and a half year suit, LDM successfully defeated three separate motions to dismiss and two motions for summary judgment (which span more than 500 pages of combined briefing and thousands of pages of evidence). The [...]
There are three essential steps to railroad risk transference through insurance: 1. Add an indemnity clause to all contracts making clear that you are asking for indemnity for the contractor's or vendor's negligence. If you do intend to seek indemnity for the railroad's negligence too, this language needs to be clear and unequivocal in order to adhere to most states' requirements. Not all states allow exculpatory indemnity. (I will write more about this later. [...]
Most Midwest states have specific statutes that bar one party from asking for indemnity from another party in a construction related contract. Iowa, Kansas and Missouri do not. However, Nebraska, North Dakota, South Dakota and Minnesota do. All parties to any contract that involves any type of construction or design must be aware of these statutes. If not, your AIA or other contract provisions on indemnity may not be upheld or enforceable in a court of law. This is [...]
I recently came across a survey conducted by Software Advice analyzing the software contractors use construction for estimating projects. The purpose of the survey was to establish industry benchmarks to gauge the efficiency, effectiveness and performance of cost estimating systems. And, it allowed contractors to compare their project management processes against other contractors and construction professionals from a variety of trades The survey provided an interesting look into what systems [...]
I know I sound like a broken record on this, but courts keep interpreting pay-if-paid clauses. The latest case I read was out of Ohio, Transtar Electric, Inc. v. A.E.M. Electric Services Corp., in which the trial court ruled the clause was a pay-if-paid clause, but was overruled by the Court of Appeals. In that case, the subcontract conditioned payment to the sub on payment received by the contractor from [...]
Kansas recently became the eighteenth state to hold that statutory caps on non-economic damages are constitutional. The court in Miller v. Johnson, No. 99,818 (Kan. Oct. 5, 2012) held that a Kansas statute did not violate the plaintiff's right to a trial by jury, due process, or equal protection, nor did it violate the separation of powers. The Miller court cited a number of familiar reasons for upholding the statutory cap [...]
The Department of Labor, Wage and Hour Division, has finally issued its final regulations on the Family Medical Leave Act (“FMLA”). Most of the new regulations relate to rarely used FMLA provisions, but there is also a poster that now must be hung in the workplace. The new poster, which identifies a number of changes in the FMLA rules, is available here. This new poster can replace the poster that [...]
Of course I say this in jest, for doesn't everyone think that insurance is dry, boring and dull? Well I for one don't! My friends and family tease me incessantly about this Blog, my legal work, and how a sentence of two in a policy can get me all riled up for either the policyholder or the insurer, depending upon the cause. Words are our inventory in this industry. How can [...]
Partner, Sean Minahan recently spent 12 days traveling in Hong Kong, Vietnam and Taiwan as a member of the Nebraska LEAD Class 31. Throughout the educational travel seminar, the group met with governmental and corporate representatives from each country’s agricultural sector. The prevailing theme of the experience was the U.S. agriculture’s role in S.E. Asia’s food supply and how that role may change in the future. You can contact Sean [...]
LDM attorneys Bill Lamson and Cathy Trent-Vilim recently obtained a ruling from the Nebraska Supreme Court affirming a $1 million plaintiff's verdict. In Werner v. County of Platte, the Court rejected the County's objections to the trial court's receipt of certain evidence, and its determination that the plaintiff was an "innocent third party" for purposes of Nebraska's vehicular pursuit strict liability statute, and upheld the trial court's judgment for Mr. [...]
Here are three simple rules for obtaining indemnity and insurance on a construction project if you are the owner or the General Contractor. #1. Make all subcontractors add you as an additional insured on their CGL policies by endorsement. Insist upon the ISO 1985 version, which would cover you for losses incurred even if it is your fault. This is the broadest form available. #2. Draft a contract with the subs that contains two separate clauses: one [...]
Cathy S. Trent-Vilim recently published "They're Not My Clients - What Do You Mean I Owe Them a Duty of Care?" in the January, 2013 edition of the Nebraska Defense Counsel newsletter. The article discusses the Nebraska Supreme Court's recent expansion of an attorney's duties to third parties. You can read the full article at https://www.dropbox.com/s/al85okak2zaqrbs/They%27re%20Not%20My%20Clients.pdf
The Omaha World Herald published a thought provoking article on the topic of overtreatment and the use of MRI’s in last week’s paper, written by World Herald Columnist Matthew Hansen. In it, Dr. Thomas Tape from the University Nebraska Medical Center discusses how the health system in this country pushes people into hospitals, rather than out, with unnecessary medical tests, including the overuse of MRI’s, becoming the norm. According to [...]
Railroads can be covered for losses caused in whole or in part by a contractor. If a railroad is added to the contractor’s Commercial General Liability (CGL) insurance policy as an additional insured, all losses which arise out of the contractor’s work should be covered. The case of Cont’l Cas. Co. v. Auto-Owners Ins. Co., 238 F.3d 941, 944 (8th Cir. 2000) explains this concept of risk transference. There, Burlington Northern R.R. Co. contracted with [...]
A Commercial General Liability (CGL) insurer does not typically have liability for property damage to the structure being constructed. Instead, coverage usually only applies to other property damaged by the work. In the recent lawsuit Lagestee-Mulder, Inc. v. Consolidated Insurance Co., the contractor found out the hard way that he had no coverage when the owner sued for construction defects. In this case, the general contractor was named as an [...]
This topic hits close to home. I am married to a third year resident who is starting his career as a hospitalist in August. Friends and family frequently ask my husband to write them a prescription for various ailments rather than visit their primary care physician. His response? "Sorry, unless you come visit me in my clinic and we establish a physician - patient relationship, the Statutes and Regulations in [...]
ISO has issued new Commercial General Liability (CGL) forms and endorsements that are operative as of April 2013. Many of these new policy provisions will affect our readers. Some take away coverage, others add more, and a few new ISO provisions set forth clarification of the meaning of existing forms. I will periodically discuss in the Guide how these new provisions change coverage in future policies. Many states have already adopted these changes, including [...]
Congratulations to LDM partner Mark E. Novotny, for his recent induction in the American Board of Trial Advocates (ABOTA). ABOTA is an invitation-only organization aimed at elevating the standard of integrity, honor, and courtesy in the legal profession. It seeks out attorneys who display the skills, civility and integrity to help younger attorneys achieve a higher level of trial advocacy and educate the public about the vital importance of the [...]
Should a high-low agreement waive the right to appeal? Waiving the right to appeal, and the finality that this brings, is a potential benefit. However, giving up the right to challenge any error or impropriety in the proceedings has its own risks, including dealing with an overzealous opposing attorney, who may be more willing to push the envelope at trial, knowing that an appeal has been waived. It is at [...]
