The 'Sophisticated Insured' Defense
July 30, 2008
A majority of courts consider the <i>contra proferentem</i> doctrine to be a pillar of insurance law. The doctrine requires ambiguous terms in an insurance policy to be construed against the insurer and in favor of coverage for the insured. A prominent rationale behind the doctrine is that insurance policies are usually standard-form contracts drafted entirely by insurers.
Conflicts of Interest Between an Insurer and Its Insured
July 30, 2008
This article examines potential conflicts of interest between an insurer and its insured and the extent of an insured's right to its own independent counsel in such circumstances. This article also discusses other situations that may raise conflicts of interest between an insurer and an insured sufficient to trigger a right to independent counsel. Finally, it considers whether the insurer or the insured has the right to select that counsel.
<i>Tiffany v. eBay</i>
July 30, 2008
The recent decision in <i>Tiffany v. eBay</i> represents a thorough and well-considered exploration of the basis for finding secondary liability in the electronic marketplace for those who facilitate the sale of infringing goods without even selling a product and, conversely, the way for the maker of the marketplace to avoid liability for infringements by those who sell on its site.
DIY-ing to e-Plan
July 30, 2008
Professional services requiring insight and judgment ' and application of sophisticated expertise on a case-by-case basis ' seemed immune to the e-commerce onslaught. After all, no one wants to trust the future welfare of one's family and affairs to a device that makes the phrase 'computer problem' a redundancy. And why would people who need to spend thousands of dollars on estate planning even think about trusting an online service just to save a few dollars ' even if only to pass on post-mortem thoughts from the grave?
Pharmaceutical Products and Suicide Risks
June 30, 2008
In last month's issue, we noted that the federal government, drug companies and consumer watchdogs are increasing their efforts to find out whether a host of pharmaceutical products, when taken, can tend to render consumers susceptible to suicidal thoughts and/or actions. We continue the discussion in Part Two.
Case Notes
June 27, 2008
Punitive, Non-Economic Damages Reduced for Paraplegic Injuries
TX High Court Rules on Federal Pre-emption
June 27, 2008
In an April 18 decision that could affect other kinds of cases involving a federal regulatory scheme, the Texas Supreme Court held that the U.S. Consumer Product Safety Act ('CPSA') pre-empts a tort claim brought against a cigarette lighter manufacturer.
The Need for New Policy and Business Paradigms
June 27, 2008
New products frequently give rise to new waves of product liability litigation. With nanotechnology-rooted innovation forecasted to account for upward of $1.5 trillion in global commerce by 2015, the stakes are high.
CA Adopts the Sophisticated User Doctrine
June 27, 2008
On April 3, 2008, the California Supreme Court, faced with a question of first impression, adopted the Sophisticated User Doctrine as a viable affirmative defense in product liability cases. The issue, as framed by the court, was whether California should adopt the Sophisticated User Doctrine to negate a manufacturer's duty to warn of a product's potential danger when the plaintiff has, or should have, advance knowledge of the product's inherent hazards. The ruling is an undeniable victory for product manufacturers.
