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Availability of Attorneys' Fees in Coverage Litigation
As insurance coverage disputes, like all disputes, become increasingly expensive, cost continues to be an important factor in deciding whether to commence a lawsuit or arbitration in order to pursue insurance. While most states apply the 'American Rule,' which precludes recovery of attorneys' fees in litigation-coverage disputes, some jurisdictions have exceptions for prevailing insureds. This article highlights the major types of exceptions. In considering the possibility that fees may be available, practitioners should recognize that individual jurisdictions may apply exceptions that look similar but operate rather differently, and that important rights of recovery may be found in procedural rules or case law beyond the confines of insurance law. Careful analysis of conflicts of law may also be important since the right to collect fees in a case filed in a particular state or federal court may turn on its choice of law principles and whether a particular right to recovery is deemed substantive or procedural.
The American Rule
Under the so-called 'American Rule,' parties are generally responsible for their own attorneys' fees, and the award of such fees is prohibited. Courts will not routinely award attorneys' fees to the prevailing party absent express statutory authority, contractual provisions, or grounds for equitable relief. See, e.g., Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001) (Courts 'follow 'a general practice of not awarding fees to a prevailing party absent explicit statutory authority.”); Chambers v. NASCO, 501 U.S. 32, 45 (1991) ('[T]he so-called 'American Rule' prohibits fee shifting in most cases.'); Prof'l Helicopter Pilots Ass'n v. Lear Siegler Servs., No. 04-14403, 2005 U.S. App. LEXIS 23667 at *2, 2005 WL 2840306 at *1 (11th Cir. Oct. 31, 2005) (unpublished) ('[T]he American rule ' that each party bears its own attorneys' fees ' presumptively applies.').
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.