West Virginia High Court: No 'Occurrence' in Faulty Workmanship
January 05, 2006
West Virginia's highest court has held that a commercial general liability ('CGL') policy does not provide coverage for faulty workmanship claims because such claims do not constitute an 'occurrence.' <i>Webster County Solid Waste Auth. v. Brackenrich & Assocs., et al.</i>, Nos. 31861 & 31862 (W.Va. June 30, 2005). This case reinforces the core concept — long recognized in insurance law — that general liability coverage protects against liability to others due to third-party property damage or bodily injury and does not serve as a performance bond for the policyholder's own work.
Kelo v. City of New London: Takings, 'Public Use,' Urban Waterfront Redevelopment, and the Likely Survival of the Republic
January 04, 2006
In June, the Supreme Court affirmed the power of municipal redevelopment agencies to take property by eminent domain in order to assemble large parcels for economic development. <i>Kelo v. City of New London</i>, No. 04-108 (U.S. June 23, 2005) held that a municipality may take private homes in good condition to transfer them to a private developer as a part of an integrated plan to redevelop an area of New London. This use of eminent domain did not violate the "public use" requirement of the Takings Clause of the Fifth Amendment that, at its core, prohibits the government from taking private property solely to transfer it to another private person to serve a private interest. Kelo follows the Court's decision in <i>Lingle v. Chevron U.S.A. Inc.</i>, 125 S. Ct. 2074 (2005), where the Court ruled that a state statute that was not reasonably calculated to achieve its stated goal was not, by virtue of that irrationality, an unconstitutional taking. (In that case, the statute imposed a cap on the rent that oil companies could charge service station owners in Hawaii in order to achieve the stated goal of lower gasoline prices.)
Infringement By Source Code 'Golden Master': Developments in Patent Infringement Law Concerning Extra-U.S. Sales
January 04, 2006
Until recently, U.S. software companies comfortably operated under the assumption that selling software that was copied from a "golden master" CD outside of the United States, and which was sold only to customers outside of the United States, did not infringe U.S. patents. Recent developments in the law have destroyed that comfort and made clear that infringement liability may very well lie for exactly those types of foreign sales.
Federal Preemption and Tort Claims
January 04, 2006
For medical device manufacturers, federal preemption can be a powerful defense to state tort claims. Although there is some split of authority, most federal courts of appeals that have addressed the issue have held that when a medical device reaches the market via the Food and Drug Administration's (FDA) rigorous "premarket approval" (PMA) process, many state common law claims are expressly preempted by the Medical Device Amendments (MDA) of 1976.
Experts on Juries
January 04, 2006
As blanket occupational exemptions for jury duty become a relic, litigators are split on whether there is a need for specific jury instructions to keep jurors from relying on their expertise in evidentiary matters. This issue tends to be particularly troubling for medical malpractice attorneys, as the pool of potential jurors with knowledge of medical issues -- doctors, nurses, physical therapists, etc. -- is so large. One court system -- New York's - instructs professionals to keep their expertise outside of the jury room. No other court currently singles out professional jury-deliberation conduct in jury instructions.
<b>Practice Tip:</b> Taking Conceptual Search to the Next Level
January 03, 2006
Conceptual search is widely regarded as a technological Rosetta stone enabling faster, more comprehensive, and more revealing evidence review, but its use in the legal community to date has been limited primarily to a handful of outsourced electronic discovery services. At Foley & Lardner LLP, we realized early on that we could take full advantage of this advanced search technology only by bringing it in-house.
Deadlines On Demand Simplifies Calendaring Juggling Act
January 03, 2006
Practicing law has never been a problem for me or for the other attorneys at my firm; we're very confident of our skills as lawyers and our ability to properly serve clients. But keeping up with the administrative details of creating a solid, reliable calendaring system had become particularly labor intensive in our rapidly growing practice.
Employee Blogging: What Employers Don't Know Could Hurt Them
January 03, 2006
According to an American Management Association 2005 survey of 536 employers, 84% of companies have established policies relating to personal e-mail use, and 81% have established policies relating to personal Internet use, but only 23% have policies on personal postings on corporate blogs. <br>This article discusses blogging and the potential for employer liability that employee blogging presents. It recommends that employers establish blogging policies so that such liability hopefully may be avoided.
Leading Questions and Child Witnesses
January 03, 2006
Lawyers involved in product liability cases are occasionally involved with child witnesses, either as plaintiffs or as percipient witnesses to the critical events in the lawsuit. As in other types of litigation, child witnesses present a number of difficult challenges in product liability cases.
