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Case Notes
Cumis Counsel on the Hook for Unreasonable Fees
Cumis counsel is an attorney engaged directly by a defendant when there is liability insurance potentially covering the claim, but there is a conflict of interest between the insurance company and the insured defendant. The moniker for this independent counsel comes from the well-known case of San Diego Navy Federal Credit Union v. Cumis Insurance Society, Inc., 162 Cal. App. 3d 358, 208 Cal. Rptr. 494 (1984). The most common conflict requiring appointment of Cumis counsel is when the insurer denies or refuses to defend all or part of a claim but pays for some part of the defense under a reservation of rights. In such cases, an insurer may be ordered by a court to provide (and pay for) independent defense counsel under a reservation of rights.
In Buss v. Superior Court, 16 Cal. 4th 35, 49 (1997), the Supreme Court of California held the insured would be unjustly enriched if not ultimately required to pay the cost of defending any claims for which it had not purchased defense or indemnity insurance. Accordingly, the Buss court held the insurer may seek reimbursement from the insured for those defense costs attributable solely to uncovered claims. The court was not asked in Buss to consider the scenario wherein a court order requires the insurer to pay “reasonable and necessary defense costs” but expressly preserves the insurers right to recover payments for “unreasonable and unnecessary” charges by Cumis counsel, and the insurer alleges Cumis counsel padded bills with excessive, unreasonable and unnecessary charges. That multi-faceted question is addressed in the recent case of Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C., California Supreme Court case no. 5211645.
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.
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.
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.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.