Beware the 'Cat's Paw'
Corporate officials, including CEOs, general counsel and human resource personnel, are often asked to determine whether to terminate the employment of an individual who is working for a company. In making that determination, the official frequently relies on information and/or recommendations provided by subordinates without conducting an independent investigation regarding the merits of the decision. A recent decision from the United States Court of Appeals for the Tenth Circuit highlights the risks that may accompany such a course of conduct.
Claims for Breach of Implied Covenant of Good Faith and Fair Dealing: Viability Typically Depends on Success of Breach of Contract Claim
In many insurance coverage disputes, an insured that brings a claim for breach of the insurance contract also claims breach of the implied covenant of good faith and fair dealing. The carrier then must determine how to successfully defend both claims. The strategy employed in defending those claims must take into consideration the nuances of a claim for breach of the implied covenant of good faith and fair dealing. In most jurisdictions, the best strategy may be to focus on defeating the contract claim, because the dismissal of the contract claim typically extinguishes any claim of breach of the implied covenant of good faith and fair dealing.
The Scope of Absolute and Total Pollution Exclusions
Insurance carriers and policyholders continue to engage in an ongoing debate with respect to the meaning and application of 'absolute' or 'total' pollution exclusions ' clauses that are contained in most general liability insurance policies sold since 1986. Absolute and total pollution exclusions generally preclude coverage for bodily injury or property damage 'arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants,' and define 'pollutant' to mean 'any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.'
Case Notes
Highlights of the latest product liability cases from around the country.
Federal Rule 26 Expert Witness Disclosures: A Primer
Because expert testimony is so important in product liability litigation, disclosure is essential. Failure to comply with the rules governing disclosure can be fatal. A Rule 26 report disclosing proposed opinion testimony must meet specific and substantial criteria. Fed. R. Civ. P. 26(a)(2)(b). The report must contain, <i>inter alia</i>: 1) a complete statement of all opinions to be expressed and the basis or reasons therefor, and 2) the data or other information considered by the witness in forming the opinions. Fed. R. Civ. P. 26(a)(2)(B), <i>Tompkin v. Phillip Morris</i>, 362 F.3d 882, 895 (2004), <i>Brainard v. American Skandia Life Ins. Sopr.</i>, 2005 WL 3533545 (6th Cir. 2005).
Product Liability Insurance: Can You Not Have It?
Today's economy depends heavily on the enormous range of products that are sold daily to consumers. Indeed, consumer demand for both the necessities and conveniences of life ' everything from lawn mowers and ovens to trampolines and espresso makers ' drives many manufacturers constantly to develop new products to sell. In today's litigious society, however, virtually every product sold represents at least the potential for product liability exposure. Jury awards and settlements frequently make headlines ' everyday household appliances, such as coffee makers, fryers, and blenders, have yielded damage awards or settlements as high as $2.25 million. Injuries from lawn mowers have generated awards or settlements as high as $2.6 million. Even furniture has the potential to yield awards or settlements in excess of a million dollars. Moreover, product liability exposure has ruined certain industries, <i>eg</i>, asbestos, and small companies without adequate insurance protection could face bankruptcy from a single product recall.
Practice Tip: Check for the Sophisticated User
As with many things in law, there is a mental checklist. When a client calls seeking advice regarding a new product liability lawsuit, you run through the product liability checklist. What is the product? What is the product used for? What warnings accompanied the product? When was the product manufactured? How did the product allegedly cause injury?
Liability Without Harm: Is There a New Source of Catastrophic Liability Lurking Within Your State's Consumer Protection Statute?
The $10.1 billion judgment entered against Philip Morris in an Illinois state court in 2003 received national attention, as did the reversal of that judgment in December 2005. <i>Price v. Philip Morris Inc.</i>, No. 00-L-112 (Ill. Cir. Ct. March 21, 2003), <i>rev'd</i>, No. 96236 (Ill. Sup. Ct. Dec. 15, 2005). Less well known, however, is the theory under which the plaintiffs won their judgment at trial. Unlike the plaintiffs in some other large tobacco verdicts, the plaintiffs in Price did not claim personal injury or wrongful death. Instead, the plaintiffs alleged that Philip Morris deceived them into believing that 'light' cigarettes were safe and caused an entire class of people to pay more for the cigarettes than they should have.
