News & Media | LGWM Law Firm

TRIAL COURT NOT BOUND BY IMPAIRMENT RATINGS ASSIGNED BY TREATING PHYSICIAN

In Tuscaloosa County v. Beville, 28 ALW 170-3 (2171022), 4/19/2019, Employee Chaka Beville (“Beville”) slipped and fell while working in the course and scope of her employment at the Tuscaloosa County jail in 2014, injuring her left wrist. She was treated by her authorized treating physician, Dr. Buckley, who performed surgery and later ordered a Functional Capacities Evaluation (“FCE”).

employment

ATTORNEYS FROM LGWM SUPPORT CAHABA VALLEY HEATH CARE SEE MORE SMILES BANQUET

Attorneys from LGWM’s Birmingham office attended Cahaba Valley Health Care’s annual See More Smiles Fundraising Breakfast. LGWM’s Brittany Herring serves as a board member for Cahaba Valley Health Care. The organization provides free dental and vision services for low-income individuals in Jefferson and Shelby Counties. Taffi Stewart, Sarah Redmond and Hannah Stokes also attended the fundraising event.

environmental

EIGHTH CIRCUIT UPHOLDS 11 MILLION DOLLAR CERCLA JUDGMENT OVER SALE OF CONTAMINATED BUILDING

The Eighth Circuit for the U.S. Court of Appeals has upheld an $11 million judgment entered against two subsidiaries of Titan International (collectively “Titan”) by a lower court which ruled Titan had improperly sold contaminated buildings to avoid cleanup. United States v. Dico, Inc., No. 17-3462 (8th Circuit 2019). The Court’s holding affirms the lower court’s judgment that Titan violated the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).

securities

FINRA ISSUES GUIDANCE ON COMMUNICATIONS WITH CUSTOMERS REGARDING DEPARTING REGISTERED REPRESENTATIVES

FINRA recently issued Regulatory Notice 19-10 presenting FINRA’s policy and guidance on how broker dealer firms should guarantee all communications with customers be fair, balanced, and not misleading, as required by FINRA Rule 2210, in the event of a registered representative’s departure.

employment

ELEVENTH CIRCUIT TO CLARIFY 2015 SUPREME COURT RULING IN UPCOMING PREGNANCY BIAS CASE

In February of 2019, a team of lawyers from the ACLU filed an opening brief in a new Eleventh Circuit pregnancy bias action. This new action involves an Alabama EMT named Kimberlie Durham (“Ms. Durham”), who has sued her company for alleged pregnancy discrimination. She alleges that her employer did not assign her to a less strenuous job during her pregnancy.

construction

SUPREME COURT OF ALABAMA FINDS THAT AN ARBITRATOR HAS POWER TO DETERMINE LOCATION OF ARBITRATION PROCEEDING BETWEEN CONTRACTORS FROM DIFFERENT STATES

In Alliance Investment Company, LLC v. Omni Construction Company, Inc., the Alabama Supreme Court was faced with analyzing who has the power to determine the location of an arbitration proceeding –the arbitrator or the Madison Circuit Court. 2019 WL 1219416 (Ala. 2019).

architects and engineers

MISSISSIPPI SUPREME COURT RULES ENGINEER DID NOT HAVE DUTY TO WARN OF DANGEROUS CONDITIONS

In Waltman v. Engineering Plus, Inc., 2019 WL 1071533 (Miss. March 7, 2019), the Mississippi Supreme Court held that an engineering firm providing engineering services for a roof repair did not have a duty to warn a roofing company’s employee of a dangerous condition.

workers compensation

THE ALABAMA COURT OF CIVIL APPEALS REVERSES PAIN MANAGEMENT ORDER BY TRIAL COURT

In Ex parte Trusswalk, Inc., No. 2180266, 2019 WL 1415997 (Ala. Civ. App.), the Alabama Court of Civil Appeals reviewed a trial court’s order directing an employer to provide pain management treatment for a workers’ compensation claimant.

insurance fraud and special investigation

JOHN C. WEBB AND DEVON K. RANKIN PRESENT AT THE IASIU AL MARCH MEETING

John Webb and Devon Rankin recently presented at the International Association of Special Investigation Units-Alabama Chapter's ("IASIU") March Training event in Birmingham, Alabama.

employment

ELEVENTH CIRCUIT CLARIFIES COMPARATOR STANDARD IN TITLE VII CASES

On March 21, 2019, the full en banc U.S. Court of Appeals for the Eleventh Circuit clarified that in order to establish a prima facie case of workplace discrimination through alleged preferential treatment of a comparator outside of the plaintiff’s protected class...

environmental

UNITED STATES SUPREME COURT GRANTS CERTIORARI IN NINTH CIRCUIT CWA CASE

The United States Supreme Court has granted certiorari in County of Maui, HI v. Hawaii Wildlife Fund, et al., No. 18-260, a Ninth Circuit case, as to the question of whether the Clean Water Act (“CWA”) requires a permit when pollutants originate from a point source discharge, but are conveyed to navigable waters by a nonpoint source, such as groundwater. The Court will determine whether the National Pollution Discharge Elimination System (NPDES) program’s reach is limited, covering only “direct” discharges to navigated waterways...

construction

ELEVENTH CIRCUIT INTERPRETS GEORGIA’S PROMPT PAY ACT

In Fatt Katt Enterprises, Inc. v. Rigsby Construction, Inc., a dispute arose between the general contractor, Rigsby, and one of its subcontractors, Fatt Katt, over Rigsby’s failure to pay Fatt Katt amounts allegedly owed under a construction contract. 2019 WL 972043 (11th Cir. 2019). Fatt Katt asserted Rigsby violated the State of Georgia’s Prompt Pay Act, O.C.G.A § 13-11-1, et. seq., and sought damages for work that Fatt Katt allegedly performed.

employment

DEPARTMENT OF LABOR DISCLOSES PROPOSED UPDATED OVERTIME RULES

The United States Department of Labor (“DOL”) issued a long-awaited proposed overtime rule and new exemption threshold under the Fair Labor Standards Acts (“FLSA”) on March 7, 2019. The proposed rule raises the salary threshold for overtime eligibility from $23,660.00 to $35,308.00, or $679.00 per week. As such, employees earning under $35,308.00 a year must be paid overtime for hours worked in excess of 40 each week. Above this salary level, eligibility for overtime varies based on job duties.

architects and engineers

RHODE ISLAND SUPREME COURT RULES ENGINEER THAT PREPARED DOCUMENTS FOR PUBLIC BIDDING DID NOT OWE DUTY TO GENERAL CONTRACTOR

In John Rocchio Corporation v. Pare Engineering Corporation, 2019 WL 575822 (R.I. Feb 13, 2019), the Warwick Sewer Authority (“WSA”) contracted with Pare Engineering Corporation (“Pare”) to provide pre-bid services, including preparing a Request For Proposal (“RFP”) to be provided to general contractors submitting bids. Pare completed the RFP and WSA received bids from five companies. John Rocchio Corporation (“Rocchio”) submitted the lowest bid and DiGregorio, Inc. (“DiGregorio”) submitted the second lowest bid.

securities

FINRA EXTENDS DEADLINE FOR BROKER DEALERS TO SELF REPORT 529 SAVINGS PLAN VIOLATIONS AS PART OF NEW INITIATIVE

FINRA recently announced a self-reporting initiative to promptly compensate harmed investors and promote firms’ compliance with the rules governing the recommendation of 529 savings plans. 529 plans are tax-advantaged plans that are designed to encourage saving for the future educational expenses of a designated beneficiary, and shares are commonly sold in different classes, with fees and expenses that vary widely from plan to plan.

coverage

GEORGIA SUPREME COURT RULES IN FAVOR OF INSURER ON FAILURE TO SETTLE CLAIM

The Georgia Supreme Court granted certiorari in Hughes v. First Acceptance Ins. Co. of Ga., Inc., 343 Ga. App. 693, 808 S.E.2d 103 (2017), to review whether the Court of Appeals erred in reversing the grant of summary judgment to the insurer on the insured’s failure-to-settle claim. The Court also asked the parties to address...

construction

SUBCONTRACTOR MAY BE REQUIRED TO PAY ATTORNEYS’ FEES DESPITE VERDICT IN ITS FAVOR

In United States for Use and Benefit of Cleveland Construction, Inc. v. Stellar Group, Inc., the Middle District of Georgia considered the issue of whether a contract provision allows a contractor to recover attorneys’ fees, even where that contractor did not prevail on all of its claims. 2019 WL 338887 (M.D. Ga. 2019). Stellar Group, Inc. (“Stellar”) subcontracted with Cleveland Construction, Inc. (“Cleveland”) to provide certain...

architects and engineers

TEXAS COURT OF APPEALS RULES ENGINEERS MAY NOT PROVIDE CERTIFICATES OF MERIT IN SUITS AGAINST ARCHITECTS

In Kayne Anderson Capital Advisors, L.P. v. Hill & Frank, Inc., 2018 WL 6613656 (Tex. Ct. App., Dec. 18, 2018), the Texas Court of Appeals held an engineer’s affidavit does not satisfy the Certificate of Merit requirement in a suit against an architect.

environmental

TEXAS SUPREME COURT HOLDS JOINT VENTURE LIABILITY CAP INAPPLICABLE TO DEFENSE COSTS

On January 25, 2019, the Texas Supreme Court issued a unanimous ruling reversing the lower court’s holding regarding an insurers’ obligation to pay a significant amount of legal defense costs that resulted from its liability in the Deepwater Horizon oil spill. See Anadarko Petroleum Corp. v. Houston Casualty Co., No. 16-1013 (Tex. Jan. 25, 2019). The Court ruled that a joint-venture liability cap in an insurance policy did not limit coverage for Anadarko’s defense expenses related to the Deepwater Horizon oil spill where the provision only capped “liability”—an undefined term.

employment

ELEVENTH CIRCUIT REVERSES DISCRIMINATION CLAIM LEADING TO A FULL COURT REVIEW OF CHALLENGE TO ALABAMA LAW

After a recent Eleventh Circuit decision in Lewis v. Governor of Alabama 896 F.3d 1282 (11th Cir. 2018), the Eleventh Circuit Court of Appeals has agreed to a full-court review to decide the validity of a 2015 Alabama Law prohibiting cities or other local municipalities from adopting their own laws concerning minimum wages, leave benefits, collective bargaining and other employment related issues. The law was originally enacted in response to an ordinance by the Birmingham City Council that increased the minimum wage for all employees...

securities

HIGHLIGHTS FROM THE FINRA 2019 RISK MONITORING AND EXAMINATION PRIORITIES LETTER

FINRA released its 2019 Risk Monitoring and Examination Priorities Letter. Compared to previous years, this Letter takes a novel approach by highlighting those topics that will be materially new areas of focus for FINRA’s risk monitoring and examination programs this year. The Letter also identifies areas of ongoing concern that FINRA will continue to review.

workers compensation

THE ALABAMA SUPREME COURT REVERSES PRIOR PRECEDENT AND CLARIFIES VENUE IN A WORKERS’ COMPENSATION ACTION AGAINST A FOREIGN CORPORATION

Venue for actions against corporations, both domestic and foreign, are governed by Ala. Code §6-3-7(a)(3) (1975). The statute provides an action may be brought against a corporation in “the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence.”

construction

FLORIDA DISTRICT COURT OF APPEALS AFFIRMS THAT A CONDOMINIUM NEED NOT BE UNINHABITABLE TO BREACH THE IMPLIED WARRANTY OF HABITABILITY

In D.R. Horton, Inc. v. Heron’s Landing Condo. Assn. of Jacksonville, Inc., No. 1D17-1941, 2018 WL 6803698 (Fla. Dist. Ct. App., 1st Dist. 2018), the First District Court of Appeals of Florida affirmed a Florida Circuit Court’s ruling that a breach of the implied warranty of habitability did not require a condominium to be uninhabitable.

securities

FINRA APPROVES FILING WITH THE SEC RULES PROHIBITING COMPENSATED NON ATTORNEY REPRESENTATIVES FROM PRACTICING IN FINRA ARBITRATION AND MEDIATION

FINRA currently allows non-attorney representatives to work with investors filing securities arbitration claims and throughout mediation. FINRA’s Board of Governors recently approved filing with the SEC amendments to the Codes of Arbitration and Mediation Procedure which would prohibit non-attorney representatives from practicing in the arbitration and mediation forums.

environmental

NIGHTTIME NEARS FOR DUSKY GOPHER FROG?

The United States Supreme Court recently held that land may only be designated a “critical habitat” for an endangered species if that same land is first a “habitat” for an endangered species. In Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, 139 S. Ct. 361 (2018), the Supreme Court evaluated the United States Fish and Wildlife Service’s (“the Service”) designation of certain land in Louisiana as a critical habitat for the dusky gopher frog, which is classified as an endangered species.

architects and engineers

DISTRICT COURT OF APPEALS OF FLORIDA UPHELD THE ADMISSIBILITY OF EXPERT TESTIMONY PURSUANT TO DAUBERT BECAUSE THE TESTIMONY WAS NOT BASED ON NEW SCIENTIFIC METHODS

In D.R. Horton, Inc. – Jacksonville v. Heron’s Landing Condo. Assoc. of Jacksonville, Inc., 2018 WL 6803698 (Fla. 1st DCA Dec. 27, 2018), the District Court of Appeals of Florida, affirmed the trial court’s decision to allow expert testimony related to construction defects, even though the testimony was admitted pursuant to the Daubert standard, rather than the Frye standard. The Court held the expert’s opinion was admissible under both Daubert and Frye.

employment

NINTH CIRCUIT HOLDS TIP CREDIT CANNOT APPLY TO CERTAIN TYPES OF WORK

The Fair Labor Standards Act of 1938 (“FLSA”) establishes minimum wage, overtime pay, record keeping requirements and child labor standards. It also allows employers to take a “tip credit,” in certain tipped occupations, such as a server, in order to offset the employer’s obligation to pay hourly minimum wage. Employers can pay as little as $2.13 per hour to tipped employees, but if the employee’s wages and tips combined do not meet the minimum wage, the employer must make up the difference.

environmental

SUPREME COURT ASKS SOLICITOR GENERAL TO WEIGH IN ON TWO CLEAN WATER ACT CASES

Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and the other a Ninth Circuit case, Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018). The issue is whether the scope of the Clean Water Act extends to pollutants that travel through grou

employment

ELEVENTH CIRCUIT EXPANDS APPLICATION OF THE FLSA

After a recent Eleventh Circuit decision in Asalde v. First Class Parking Systems LLC 894 F.3d 1248 (11th Cir. 2018), more employers are subject to the requirements of the Fair Labor Standards Act (“FLSA”). In Asalde, Plaintiffs were valet car drivers who sued their employer alleging violations of the FLSA. The trial court granted summary judgment for the employer, reasoning that because parking cars in Florida is a local activity, there is no interstate commerce and, therefore, no FLSA coverage.

construction

ALABAMA SUPREME COURT ENFORCES FORUM SELECTION CLAUSE

In Ex parte Killian Constr. Co., No. 1170696, 2018 WL 5730138, at *1 (Ala. Nov. 2, 2018), the Alabama Supreme Court issued a writ directing the lower court to dismiss the claims against Killian Construction Company (“Killian”) based on improper venue. The Court found the forum selection clause in the parties contract was enforceable, despite the case having almost no contracts with the contractually selected forum.

securities

FINRA PUBLISHES SECOND ANNUAL REPORT ON EXAMINATION FINDINGS

FINRA published its 2018 Report on Examination Findings, its second annual report detailing observations from recent examinations of broker-dealer firms that it considers worth highlighting because of their potential significance, frequency, and impact on investors and the markets. It also describes practices FINRA has observed to be effective in certain circumstances.

architects and engineers

PENNSYLVANIA SUPERIOR COURT HOLDS THE CERTIFICATE OF MERIT REQUIREMENT DOES NOT APPLY TO THIRD PARTY CLAIMS RELATED TO PLAINTIFF’S CLAIMS

In Kelly Systems, Inc. v. Leonard S. Fiore, Inc., 2018 WL 5629644 (Pa. Super. Ct. October 31, 2018), the Pennsylvania Superior Court held the requirement to file a Certificate of Merit to support a professional negligence claim does not apply to third party complaints.

construction

SUBCONTRACTOR LEFT WITH NO REMEDY AGAINST HOMEOWNER BASED UPON PLAIN LANGUAGE OF TEXAS’ MATERIALMAN’S LIEN PROVISIONS

In Precision Roofing, Inc., Appellant v. David Zavelson & Tracy Zavelson, Appellees, No. 03-17-00550-CV, 2018 WL 5852680, at *1 (Tex. App. Nov. 9, 2018), the Texas Court of Appeals addressed the validity of a subcontractor’s materialman’s liens.

environmental

KIDS’ CLIMATE CHANGE SUIT TEMPORARILY DELAYED IN NINTH CIRCUIT

Juliana v. United States, No. 18-73014 (November 8, 2018), was filed in 2015 and contends the federal government pursued energy policies that caused climate change even though it has known for more than fifty years that carbon emissions destabilize the climate, and that the failure to protect

architects and engineers

TEXAS COURT OF APPEALS HOLDS THAT AGGREGATE ANALYSIS DOES CONSTITUTE THE PRACTICE OF ENGINEERING

In Ronald R. Wagner & Co., LP v. Apex Geoscience Inc. and Braun Intertec Corporation, 2018 WL 4344713 (Tex. Ct. App., Sept. 18, 2018), the Texas Court of Appeals held that preparation of an aggregate analysis report was not exempt from the Texas Engineering Practice Act. Ronald R. Wagner & Co., LP (“Wagner”), a contractor specializing in the application of pavement sealer and pavement surface treatment, bid a road project for the Texas Department of Transportation (“TXDOT”). Wagner received quotes for materials for the project from Advantage Asph

employment

SUPREME COURT HOLDS ADEA STILL APPLIES TO SMALL COUNTY EMPLOYER

The United States Supreme Court resolved a split among Circuit Courts on the question of whether the Age Discrimination in Employment Act (“ADEA”) applies to state and federal political entities with fewer than 20 employees. In Mount Lemmon Fire Dist. v. Guido, 586 U.S. ____ (2018), the Court unanimously held that the ADEA applies to all federal and state entities, regardless of the size of those entities’ workforce.

securities

SEC’S OWN INVESTOR ADVISORY COMMITTEE RECOMMENDS SEC CLARIFY PROPOSED REGULATION BEST INTEREST

On April 18, 2018, the SEC proposed a new rule under the Securities Exchange Act of 1934 entitled “Regulation Best Interest” to establish a standard of conduct for broker-dealers and natural persons who are associated persons of a broker-dealer to act in the best interest of a retail customer when making a recommendation of any securities transaction or investment strategy involving securities to the retail customer.

construction

SOUTH CAROLINA COURT OF APPEALS AFFIRMS DECISION TO ALLOW JURY TO DETERMINE DATE LATENT DEFECTS WERE FIRST DISCOVERED

In Stoneledge at Lake Keowee Owners' Assoc., Inc. v. IMK Dev. Co., LLC, No. 2015-000417, 2018 WL 4905772, at *1 (S.C. Ct. App. Oct. 10, 2018), the South Carolina Court of Appeals affirms the trial court’s decision to deny a request for a directed verdict and allow the jury to determine whether or not the claims were time-barred.

environmental

SIXTH CIRCUIT REJECTS HYDROLOGICAL CONNECTION THEORY AS BASIS FOR CWA LIABILITY

The 6th U.S. Circuit Court of Appeals has ruled the Clean Water Act (CWA) does not apply to pollutants that travel through groundwater before entering navigable waters. Tennessee Clean Water Network, et al. v. Tennessee Valley Authority (TVA), Case No. 17-6155 (6th Cir., September 24, 2018). The ruling comes less than two weeks after a similar ruling by the 4th Circuit, which found discharge of arsenic from a coal ash storage site through groundwater into surro

securities

FINRA ESTABLISHES A PER ARBITRATOR FEE AND HONORARIUM FOR LATE CANCELLATION OF PREHEARING CONFERENCES

The SEC approved amendments to FINRA’s customer and industry arbitration rules to charge parties who request cancellation of a prehearing conference within three business days of the prehearing conference a $100 per-arbitrator fee. The amendment also provides for a $100 honorarium to each arbitrator scheduled to attend the cancelled prehearing conference.

employment

TENTH CIRCUIT AFFIRMS COURTS CAN HEAR SUITS WITHOUT EEOC CHARGES

Most cases involving allegations of workplace discrimination under the federal anti-discrimination statutes are first brought to light through a plaintiff’s filing of a Charge with the Equal Employment Opportunity Commission (“EEOC”). Through Title VII, Congress established a procedure requiring an individual seeking to file an employment discrimination claim to first file a charge with the EEOC. Id. §2000e-5(e)(1). If plaintiffs do not fulfill this requirement before filing suit under the federal anti-discrimination statutes, their suits are typically dismisse

architects and engineers

LOUISIANA FEDERAL DISTRICT COURT RULES CONTRACTOR COULD NOT RECOVER FOR ACTS OF CONTRACT ADMINISTRATION MADE BY ARCHITECT IN GOOD FAITH

In Patriot Contracting, LLC v. Star Insurance Company, 2018 WL 1123586 (U.S. Dist. Ct., E.D. La.), the United States District Court for the Eastern District of Louisiana ruled that exculpatory clauses in the general contract benefitting the architect were enforceable.

environmental

ENERGY COMPANY’S COAL ASH PONDS NOT SUBJECT TO CLEAN WATER ACT

The 4th U.S. Circuit Court of Appeals has ruled discharge of arsenic from a coal ash storage site through groundwater into surrounding waters does not violate the U.S. Clean Water Act and does not require a NPDES permit. Sierra Club v. Virginia Electric & Power Co., No. 17-1895 (4th Cir., September 12, 2018). A three-judge panel reversed a lower court's finding that Dominion Virginia Power could be liable for leaks from coal ash dumps at Chesapeake Energy Center, which closed in 2014. The Court held Dominion's coal ash landfill an

construction

FLORIDA APPELLATE COURT CLARIFIES CHOICE OF DAMAGES A PARTY IS ENTITLED TO FOR MATERIAL BREACH OF CONTRACT

In Forbes v. Prime Gen. Contractors, Inc., No. 2D17-353, 2018 WL 4265287, at *1 (Fla. Dist. Ct. App. Sept. 7, 2018), Florida’s Second District Court of Appeals rejected a trial courts decision to only consider benefit of the bargain damages, holding that in cases involving a material breach of the contract the non-breaching party has the option to elect either benefit of the bargain damages or damages to put them in the place they would have been had the contract never been formed.

architects and engineers

DESIGN PROFESSIONALS MAY OWE A DUTY DIRECTLY TO CONTRACTORS FOR DEFECTIVE PLANS AND SPECIFICATIONS

In Suffolk Construction Co., Inc v. Rodriquez Quiroga Architects, et al., 2018 WL 1335185 (U.S. Dist. Ct., S.D. Fla. Mar 15, 2018), the United States District Court for the Southern District of Florida held that an architect and engineer breached owed a duty to the contractor by providing design plans which the contractor relied upon.

employment

ELEVENTH CIRCUIT AFFIRMS CONVINCING MOSAIC STANDARD

Most cases involving allegations of discipline or discharge based on discrimination are brought under the disparate treatment theory. In a case of disparate treatment under Title VII, an individual initially establishes a prima facie case of intentional discrimination. In the Eleventh Circuit, a plaintiff may establish a prima facie case of discrimination by showing: (1) they are qualified; (2) they suffered an adverse employment action such as termination or discipline; and (3) similarly situated employees outside of their protected class were treated more favorably.

securities

THE SEC APPROVES FINRA RULES AMENDMENTS FOR SIMPLIFIED ARBITRATIONS

The SEC recently approved a rule amendment to create an intermediate form of adjudication for small claims. The proposal amends Rules 12600 and 12800 of the FINRA Code of Arbitration Procedure for Customer Disputes and Rules 13600 and 13800 of the FINRA Code of Arbitration Procedure for Industry Disputes. The amendments provide parties with claims of $50,000.00 or less an opportunity to argue their cases before a single arbitrator in a shorter, more limited telephonic hearing format.

workers compensation

SIA K NEWMAN SUCCEEDS AT TRIAL IN CHALLENGING PLAINTIFF’S CLAIM OF 100 PERCENT PERMANENT AND TOTAL DISABILITY

Employee Joseph Fields, (“Fields”) filed a Complaint against his employer Sexton Lawn & Landscape, for workers’ compensation benefits relating to right leg and lower back injuries he allegedly received from a brown recluse spider bite on August 13, 2015, while in the course and scope of his employment with Sexton Lawn & Landscape.

architects and engineers

INDIANA FEDERAL DISTRICT COURT CLARIFIES THE REQUIREMENTS FOR APPLICATION OF ECONOMIC LOSS DOCTRINE

In City of Whiting, Indiana v. Whitney, Bailey, Cox, & Magnani, LLC, 2018 WL 1400890 (U.S. Dist. Ct., N.D. Ind. March 20, 2018), the United States District Court for the Northern District of Indiana held that an owner’s tort claim for damage caused by the failure of a retaining wall designed by a subconsulting engineering firm was barred because all claimed damages were to the overall project and therefore barred by Indiana’s economic loss doctrine.

employment

DEPARTMENT OF LABOR ISSUES NEW GUIDANCE REGARDING NURSES AND CAREGIVERS AS INDEPENDENT CONTRACTORS

Health care registry companies provide matchmaking and referral services for qualified, pre-screened and vetted home caregivers. They often also provide administrative services. As part of the "gig economy," health care registries often tread a fine line between classifying caregivers as independent contractors or employers.

construction

COURT OF APPEALS OF TENNESSEE AFFIRMS RULING PRECLUDING RECOVERY BY DEVELOPER DUE TO IT COMMITTING A PRIOR MATERIAL BREACH OF THE SAME CONTRACT

In The Manor Homes, LLC v. Ashby Communities, LLC, et al., No. M201701369COAR3CV, 2018 WL 3814981 (Tenn. Ct. App. Aug. 10, 2018), the Court of Appeals of Tennessee affirmed a ruling precluding recovery by the developer due to it committing a prior material breach of the contract. The case involved the construction of a house in Arrington, Tennessee. Ashby Communities, LLC (“Ashby”) was the developer and owner. Ashby entered into a contract with The Manor Homes, LLC (“Manor Homes”) to serve as its builder.

securities

FINRA SEEKS COMMENT ON PROPOSED AMENDMENTS TO FIRM AND ASSOCIATED PERSONS DOCUMENT PRODUCTION LIST

FINRA is requesting comment on proposed amendments to the Firm and Associated Persons Document Production List and Discovery Guide. The proposed amendments to the Discovery Guide require firms and associated persons, upon request, to produce documents concerning third-party insurance coverage in a customer arbitration proceeding. These proposed amendments would strictly limit the circumstances under which insurance coverage information could be presented to the arbitrators.

environmental

JURY AWARDS $289 MILLION IN FIRST MONSANTO ROUND UP CASE

A California State Superior Court jury has found Monsanto’s Roundup and Ranger Pro herbicides contributed to a school groundskeeper’s lymphoma and awarded the plaintiff a combined $289 million in compensatory and punitive damages in a landmark suit against the company, which has denied links between its herbicides and cancer for decades. Johnson v. Monsanto, et al., Case No. CGC16550128. The verdict included $250 million in punitive damages, $2.3 million for past and future economic losses, and $37 million for pain, suffering and loss of life exp

environmental

FOURTH CIRCUIT WEIGHS IN ON CLEAN WATER ACT’S CONSTRUCTIVE SUBMISSION DOCTRINE

In Ohio Valley Environmental Coalition (OVEC) v. Pruitt, 893 F.3d 225 (4th Cir. 2018), the Fourth Circuit Court of Civil Appeals rejected the District Court’s application of the “constructive submission” doctrine, which applies when a state disregards its obligations to submit Total Maximum Daily Loads (TMDLs) required by federal law. Under this doctrine, a Court may interpret the failure of a state to timely submit TMDLs as a “constructive submission” of a list of no TMDLs.

construction

ALABAMA SUPREME COURT UPHOLDS FORUM SELECTION CLAUSE

In Ex parte Consol. Pipe & Supply Co., Inc., No. 1170050, 2018 WL 3083719 (Ala. June 22, 2018), the Alabama Supreme Court overturned an order granting a motion to transfer venue based upon a valid forum-selection clause. The Court held that the doctrine of forum non conveniens cannot be used to frustrate an otherwise valid forum-selection clause.

architects and engineers

THE COURT OF APPEALS OF MICHIGAN HOLDS THAT AN ARCHITECT OWED NO COMMON LAW DUTY TO OWNER FOR ALLEGED PROFESSIONAL NEGLIGENCE

In Auburn Hills Tax Increment Finance Authority v. Haussman Construction Co., 2018 WL 385057 (Mich. Ct. App. January 11, 2018), the Michigan Court of Appeals held that the owner of a construction project could not maintain a professional negligence claim against the architect for failing to adequately review payment applications.

securities

FINRA ANNOUNCES INITIATIVE TO TRANSFORM REGISTRATION SYSTEMS THAT WILL LEAD TO ENHANCED EFFICIENCIES AND REDUCED COMPLIANCE COSTS FOR FIRMS

On June 14, 2018, FINRA announced details of a multi-phased effort to overhaul its registration and disclosure programs, including the Central Registration Depository (CRD). FINRA operates the CRD for the U.S. securities industry and its regulators and it provides the backbone of BrokerCheck.

employment

SUPREME COURT STRIKES DOWN FAIR SHARE FEES FOR PUBLIC SECTOR UNIONS

On June 27, 2018, the United States Supreme Court decided in a 5-4 decision that public sector unions may no longer collect “fair share” fees from non-members. The decision in Janus v. American Federation of State, County and Municipal Employees, Council 31, has broad implications for public sector unions and employers.

workers compensation

THE COURT OF CIVIL APPEALS CONFIRMS THAT AN EVIDENTIARY HEARING MUST BE CONDUCTED BEFORE A TRIAL JUDGE CAN COMPEL MEDICAL TREATMENT

In Ex parte Sears Roebuck and Co., 27 ALW 20-6 (2170632), 5/11/2018, the employee, Jeffrey Donaldson, (“Donaldson”), filed a Complaint for workers’ compensation benefits against his employer, Sears Roebuck and Co. (“Sears”) alleging that he suffered a compensable injury to his back while repairing an air-ventilation unit in 2016.

architects and engineers

THE SECOND CIRCUIT HOLDS A PROVISION FOR SEALED DRAWINGS DOES NOT SUFFICIENTLY LINK THE OWNER AND DESIGN PROFESSIONAL FOR PURPOSES OF CONTRACTUAL PRIVITY EQUIVALENCE TO ALLOW A DIRECT SUIT BY THE OWNER AGAINST THE DESIGN PROFESSIONAL

In Stapleton v. Barret Crane Design & Engineering, 2018 WL 985775, (2nd Cir. 2018), the United States Court of Appeals for the Second Circuit found that contractual privity, or its functional equivalent, did not exist between an owner and engineering firm retained by the design-builder, because there was no contract between the parties and the parties did not communicate directly to sufficiently “link” them.

employment

SUPREME COURT AFFIRMS VALIDITY OF EMPLOYMENT AGREEMENTS CONTAINING WAIVERS FOR CLASS OR COLLECTIVE ACTIONS

On May 21, 2018, in Epic Systems Corp. v. Lewis, the Supreme Court upheld the enforceability of arbitration agreements containing class and collective action waivers of wage and hour disputes. In deciding the case, the majority held that the Federal Arbitration Act (“FAA”) mandates the enforcement of arbitration agreements and the right to pursue class or collective relief is not a protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”).

construction

ALABAMA LEGISLATURE EXPANDS SCOPE OF HOME BUILDERS LICENSURE BOARD ACT TO CLARIFY SCOPE OF LICENSURE REQUIREMENT FOR HOME IMPROVEMENTS AND NOW GOVERNS ALL RESIDENTIAL ROOFING COMPANIES

The Alabama legislature recently amended provisions of the Home Builders Licensure Board Act (the “HBLB Act”) to expand the scope of home building projects and companies required to comply with the HBLB Act. The HBLB Act was originally enacted to protect individual homeowners when engaging a Construction company to either build a new home or during a remodel. The HBLB Act required General Contractors to obtain a license from the Home Builders Licensure Board (the “Board”) prior to entering into contracts with perspective clients.

securities

ENHANCEMENTS TO FINRA’S DISCLOSURE REVIEW VERIFICATION PROCESS PERMITS FIRMS TO RELY ON PROCESS FOR COMPLIANCE WITH PUBLIC FINANCIAL RECORDS SEARCHES OF APPLICANTS AND REGISTERED PERSONS

Beginning on July 9, 2018, FINRA is enhancing its disclosure review process to enable it to conduct a public records search of information relating to bankruptcies, judgments and liens, within fifteen calendar days from the date of an applicant’s Form U4. These enhancements will allow FINRA to verify the accuracy and completeness of an applicants’ information relating to all bankruptcies, judgments and liens reported to the Central Registration Depository (CRD) system through the Form U4.

environmental

COURT REDUCES $50 MILLION PUNITIVE DAMAGES AWARD IN HOG FARM NUISANCE CASE

A federal judge in North Carolina has reduced a $50 million punitive damages award in a nuisance suit against a hog farm that stored the animal waste in open-air lagoons and sprayed it on nearby fields. McKiver, et al. v. Murphy-Brown, LLC, 7:14-CV-180 (May 7, 2018, E.D.N.C.). The Court relied on North Carolina’s law capping punitive damages awards to reduce the $50 million reward to $3.25 million.

securities

FINRA REVISES THE SANCTION GUIDELINES

FINRA revised its Sanction Guidelines to instruct adjudicators in the disciplinary process to consider customer-initiated arbitrations that result in adverse arbitration awards or settlements when assessing sanctions. As a result, when a Respondent’s disciplinary history, and history of arbitration awards and arbitration settlements, together with the violation found in a disciplinary case, form a pattern, the new Sanction Guidelines will advise that adjudicators should consider imposing more stringent sanctions.

environmental

FOURTH CIRCUIT HOLDS INDIRECT DISCHARGES ACTIONABLE UNDER CWA AS ONGOING VIOLATION

The Fourth Circuit reversed a District Court’s dismissal of a lawsuit over a Kinder Morgan Energy Partners LP subsidiary’s gasoline pipeline spill in South Carolina, holding the Clean Water Act covers claims that the spill contaminated nearby creeks and wetlands after traveling through groundwater. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018). In a split panel decision, the Appeals Court held that citizens may bring suit alleging a violation of the CWA when the point source of pollution is no

employment

RECENT CHANGES IN DEPARTMENT OF LABOR TIP POOL RULE

The recently passed Consolidated Appropriations Act (“CAA”) put an end to an ongoing controversy over the status of a proposed Department of Labor (“DOL”) tip rule and the underlying dispute over whether employers who do not claim the tip credit against the federal minimum wage may be prohibited from including non-tipped employees in mandatory tip pools. In 2017, the DOL moved to roll back an Obama-era regulation extending this restriction to employers that pay their tipped employees the full minimum wage.

construction

CALIFORNIA SUPREME COURT CLARIFIES EXTENT OF EXCEPTION TO GENERAL RULE REQUIRING TIMELY PAYMENT TO CONTRACTORS

In United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., No. S231549, 2018 WL 2188916 (Cal. May 14, 2018), the Supreme Court of California determined that while a general contractor or owner may withhold monies from subcontractors in circumstances where a dispute has arisen between the parties, the exception is limited to only those amounts actually in dispute.

architects and engineers

COURT OF APPEALS OF TEXAS HOLDS THE CERTIFICATE OF MERIT REQUIREMENT DOES NOT APPLY TO THIRD PARTY CONTRIBUTION CLAIMS

In Engineering and Terminal Services, L.P. v. TARSCO and Orcus Fire Protection, LLC, 525 S.W. 3d 394 (TX 2018), the Court of Appeals of Texas held the statutory requirement to file a Certificate of Merit along with a lawsuit based on professional negligence of an engineer does not apply to third party claims for contribution.

securities

U.S. APPEALS COURT VACATES OBAMA ERA ‘FIDUCIARY RULE’ REQUIRING FINANCIAL ADVISORS TO ACT IN CUSTOMERS’ BEST INTEREST

On March 15, 2018, the 5th U.S. Circuit Court of Appeals in New Orleans voided the U.S. Department of Labor’s “fiduciary rule” adopted by the Obama administration in 2016 as a means to limit and reduce conflicts of interest among financial advisors providing retirement planning advice. The majority found in the case, Chamber of Commerce of the United States of America v. U.S. Department of Labor, 17-10238, that the Department of Labor overstepped its authority and that the Obama-era rule’s redefinition of “fiduciary” was unreasonable.

construction

FOURTH DISTRICT COURT OF APPEAL OF FLORIDA DETERMINES DUTY OF SUBCONTRACTOR TO DEFEND AND INDEMNIFY GENERAL CONTRACTOR DID NOT EXTEND TO PROJECT OWNER

In Blok Builders, LLC v. Katryniok, No. 4D16-1811, 2018 WL 637399 (Fla. Dist. Ct. App. Jan. 31, 2018), the District Court of Appeal of Florida, Fourth District, overturned a trial court’s decision requiring a subcontractor to defend and indemnify a project owner based on a reference in the Subcontract which adopted and incorporated by reference the terms of the General Contract, that include an indemnification provision between the Owner and General Contractor.

employment

THE SUPREME COURT ADOPTS A BROADER VIEW OF FLSA EXEMPTIONS REJECTING THE LONGSTANDING NARROW CONSTRUCTION PRINCIPLE

On April 2, 2018, the Supreme Court of the United States issued a ruling in Encino Motorcars, LLC v. Navarro, 584 U.S. ___ (2018), holding that auto dealership service advisors are exempt from the Fair Labor Standards Act’s (“FLSA”) overtime pay requirement. The case began in 2012 in a California District Court, and was later appealed to the Ninth Circuit Court of Appeals, when Encino Motorcars’ service advisor employees brought suit seeking time-and-a-half compensation for overtime hours.

architects and engineers

CALIFORNIA FEDERAL DISTRICT COURT EXTENDS SPEARIN DOCTRINE TO A DESIGN BUILD PROJECT

In U.S. for benefit of Bonita Pipeline, Inc. v. Balfour Beatty Construction LLC, et. al., 2017 WL 2869721 (U.S. Dist. Ct., S.D. Cal.), the United States District Court for the Southern District of California ruled the Spearin Doctrine, in which an entity providing plans or specifications is liable for deficiencies in the plans or specifications, applies to subcontractors in design-build projects, even when plans or specifications are by definition meant to be further refined by the subcontractor.

environmental

SIXTH CIRCUIT DECLINES TO PIERCE CORPORATE VEIL IN CERCLA SUIT

In Duke Energy Florida, LLC v. Firstenergy Corp., CV No. 17-3024, April 10, 2018, the Sixth Circuit refused to pierce the corporate veil to determine which corporate entity would be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., for costs associated with cleaning up hazardous waste released at two manufactured gas plants in the early 1900s. The processes used at the time to create gas for home consumption inevitably released harmful byproducts, including coal tar, into the local environment, c

coverage

ELEVENTH CIRCUIT RULES IN FAVOR OF INSURER OVER COMPUTER FRAUD CLAIM

Last week, the Eleventh Circuit in InComm Holdings, Inc. v. Great American Insurance Company affirmed a district court decision holding an insurer is not obligated to reimburse a prepaid debit card processer for a $10.7 million loss.

employment

FURTHER CIRCUIT SPLIT REGARDING SEXUAL ORIENTATION DISCRIMINATION UNDER TITLE VII

In recent years, a Circuit Court split has emerged regarding whether Title VII prohibits discrimination based solely on sexual orientation. On February 26, 2018, the Justices of the Second Circuit Court of Appeals heard an appeal seeking reinstatement of a Title VII claim brought by the estate of a former employee, Donald Zarda (“Mr. Zarda”). The estate alleged that Mr. Zarda was fired from his job as a skydiving instructor after he told a customer he was gay. Zarda v. Altitude Express addressed a narrow question: whether Title VII prohibits discrimination on

construction

COURT OF APPEALS OF TENNESSEE HOLDS IT IS DEFENDANT’S BURDEN TO PRESENT EVIDENCE TO LIMIT A PLAINTIFF’S DAMAGES TO DIMINUTION OF VALUE

In Patrick Durkin v. MTown Construction, LLC, N No. W201701269COAR3CV, 2018 WL 1304922, (Tenn. Ct. App. Mar. 13, 2018), the Court of Appeals of Tennessee overturned an award of property damages which was predicated in part upon the diminution of property value based upon a finding that the defendant had failed to present sufficient evidence establishing the unreasonableness of the costs to repair the real property.

securities

FINRA SEEKS COMMENT ON PROPOSED NEW RULE GOVERNING OUTSIDE BUSINESS ACTIVITIES AND PRIVATE SECURITIES TRANSACTIONS

FINRA launched a retrospective review of its outside business activities and private securities transactions rules in May of 2017 to assess their effectiveness and efficiency. This request for comment stems from that review of FINRA Rule 3270 (Outside Business Activities of Registered Persons) and FINRA Rule 3280 (Private Securities Transactions of an Associated Person). The proposed rule would replace FINRA Rules 3270 and 3280 and is intended to reduce unnecessary burdens, while strengthening investor protections relating to outside activities.

architects and engineers

MISSISSIPPI COURT OF APPEALS HOLDS CLAIMS AGAINST ENGINEER ARE BARRED BY THE DOCTRINE OF ACCORD AND SATISFACTION

In Triangle Construction Company, Inc. v. Fouche and Associates, Inc., 218 So. 3d 1180 (Mississippi 2017), Triangle Construction Company, Inc. (“Triangle”) contracted with East Madison Water Association (“EMWA”) to build a water system in Madison and Leake Counties in Mississippi. The contract designated Fouche and Associates (“Fouche”) as the project engineer, although Fouche was not a signatory to the contract. Triangle nevertheless argued Fouche was a party to the contract because Fouche’s seal was affixed to the contract’s cover, was designated as the pr

environmental

NEW JERSEY ANNOUNCES $196 MILLION IN MTBE SETTLEMENTS

Shell, BP and Sunoco have agreed to pay $196.5 million to resolve New Jersey’s contamination claims over a gasoline additive that seeped into groundwater throughout the state. The case is the first to be finalized since voters approved a constitutional amendment prohibiting money from such lawsuits being diverted away from cleanup and restoration of natural resources.

workers compensation

SUPREME COURT RULES IN VENUE MATTER DETERMINING THAT INTEREST OF JUSTICE OVERRIDES INITIAL SELECTION OF THE FORUM

Stephen Hrobowski (“Hrobowski”) was involved in a motor vehicle accident in Montgomery County, Alabama in 2015 wherein his vehicle collided with a vehicle being operated by Kevin Ledyard (“Ledyard”). The impact of this collision caused Ledyard’s vehicle to strike a vehicle being operated by Roosevelt McCorvey (“McCorvey”).

environmental

EPA APPROVAL OF TMDLs DOES NOT REQUIRE IT TO MAKE PERMITTING DETERMINATIONS

The United States Court of Appeals for the First Circuit has affirmed a lower court’s decision that the Environmental Protection Agency is under no obligation to require permits of landowners contributing to violations of state-developed Total Maximum Daily Loads (“TMDLs”). Conservation Law Foundation v. EPA, 48 ELR 20013 (1st Cir. 2018).

employment

DEPARTMENT OF LABOR ALIGNS ITSELF WITH ELVENTH CIRCUIT BY ANNOUNCING THE PRIMARY BENEFICIARY TEST AS THE DEFINITIVE TEST FOR ASSESSING WHETHER INTERNS QUALIFY AS EMPLOYEES UNDER THE FEDERAL LABOR STANDARDS ACT

The U.S. Department of Labor (“DOL”) announced that the “primary beneficiary” test is the definitive test for analyzing intern-employer relationships under the Federal Labor Standards Act (“FLSA”). That test has been promulgated by several Circuit Courts, including the Second, Sixth, Ninth and Eleventh Circuit Courts of Appeal. See Benjamin v. B & H Educ., Inc., 877 F.3d 1139 (9th Cir. 2017); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, (2d Cir. 2016); Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199 (11th Cir. 2015); Solis v. Lau

construction

ALABAMA COURT OF CIVIL APPEALS DETERMINES CONTRACTOR IS ENTITLED TO AN AWARD OF PREJUDGMENT INTEREST DESPITE FACTUAL DISPUTE AS TO AMOUNT DUE PURSUANT ORAL CONTRACT

In Ballard v. Lee A. McWilliams Constr., Inc., No. 2160469, 2018 WL 670459, at *1 (Ala. Civ. App. Feb. 2, 2018), the Alabama Court of Civil Appeals determined an award of prejudgment interest is due despite a defense that such damages should not be recoverable given that they were not “certain” at the time of the alleged breach due to the parties’ disagreement on the amount owed under the oral cost-plus contract.

securities

FINRA ARBITRATION 2017 STATISTICS

Arbitration case filings through December 2017 reflected a 6 percent decrease compared to cases filed in 2016 during the same time frame. More specifically, 3,681 cases were filed in 2016, but 3,456 cases were filed in 2017. Of the 3,456 cases filed, 65 percent or 2,260 were customer disputes and 35 percent or 1,196 were intra-industry disputes.

architects and engineers

SUPREME COURT OF MONTANA RULES LIMITATION OF LIABILITY IS ENFORCEABLE IN A CONTRACT ACTION AS LONG AS IT DOES NOT CONTRACT AWAY ALL LIABILITY, BUT NOT IN A PROFESSIONAL NEGLIGENCE ACTION

In Zirkelbach Construction, Inc. v. DOWL, LLC, 402 P.3d 1244 (Mont. 2017), the Supreme Court of Montana ruled design professionals can contract to limit liability for a contract claim, even if the limitation is a nominal percentage of the overall fees paid, as long as the parties do not disclaim all liability outright. However, the Court held that the limitation did not apply to the negligence claim in the suit.

architects and engineers

CALIFORNIA COURT OF APPEALS HOLDS THAT THE RELATION BACK DOCTRINE DOES NOT APPLY TO THE CERTIFICATE OF MERIT REQUIREMENT IN PROFESSIONAL NEGLIGENCE ACTIONS AGAINST ARCHITECTS AND ENGINEERS

In Curtis Engineering Corporation v. Superior Court of San Diego, 16 Cal. App. 5th 542 (Cal. App. Ct. 2017), the Court of Appeals for the Fourth District of California addressed the impact of the relation-back doctrine on the certificate of merit law in professional negligence actions against design professionals. California’s certificate of merit law, codified in the Business and Professions Code, Section 411.35, requires an attorney to consult with an architect or engineer in the same discipline before filing a complaint against a licensed architect or register

construction

ELEVENTH CIRCUIT COURT OF APPEALS AFFIRMS TRIAL COURT’S INTERPRETATION OF WHAT CONSTITUTES ACCEPTANCE FOR STATUTE OF LIMITATIONS PURPOSES FOR ACTIONS ON PAYMENT BONDS

In Devin B. Strickland v. Arch Insurance Company, No. 17-10610, 2018 WL 327443 (11th Cir. Jan. 9, 2018), the Eleventh Circuit Court of Appeals affirmed the District Court’s determination that Strickland’s claim against the bond surety was time-barred due to his waiting more than one year after the completion of the contract and the acceptance by the public authority to bring suit.

employment

RECENT CHANGES TO NATIONAL LABOR RELATIONS BOARD LAW

Since taking office, President Trump has appointed three new members to the five-member board of the National Labor Relations Board (“NLRB”), who will each serve a five year term. This has resulted in big changes to Obama-era rulings.

environmental

FIRST CIRCUIT FINDS MONSANTO NOT RESPONSIBLE FOR PCB REMEDIATION AT WESTPORT SCHOOL

The United States Court of Appeals for the First Circuit affirmed the District Court’s entry of summary judgment on all remaining claims in an action filed by the Town of Westport against Monsanto Company, Solutia, Inc., and Pharmacia. Town of Westport v. Monsanto Company, Case No. 17-1461 (December 8, 2017). In the suit, Westport alleged Monsanto and its related corporations, Solutia, Inc. and Pharmacia, were liable for property damage caused by PCB-laden caulk installed in a Massachusetts middle school in the 1960s.

securities

HIGHLIGHTS FROM THE FINRA 2018 REGULATORY AND EXAMINATION PRIORITIES LETTER

FINRA released its annual list of Regulatory and Examination Priorities for 2018. FINRA will continue its focus on high-risk and recidivist brokers in terms of rulemaking initiatives and examinations. This year’s priority includes strengthening the current operation, while becoming more efficient.

workers compensation

THE 10TH CIRCUIT COURT OF APPEALS FOUND ALJ’S FOR THE SECURITIES AND EXCHANGE COMMISSION TO BE IN VIOLATION OF THE APPOINTMENTS CLAUSE, WHICH COULD POTENTIALLY UPEND THE BLACK LUNG BENEFITS ACT

An opinion from the 10th Circuit Court of Appeals, Bandimere v. Sec. & Exch. Comm'n, 844 F.3d 1168 (10th Cir. 2016), has the potential to substantially upend the Black Lung Benefits Act, particularly as it concerns authority of Administrative Law Judges to decided cases under the Black Lung Benefit Act.

workers compensation

THE ALABAMA COURT OF CIVIL APEALS CLARIFIES WHAT COSTS ARE RECOVERABLE BY A PREVAILING PARTY IN A WORKERS’ COMPENSATION CASE

Section 25–5–89 of Alabama’s Workers’ Compensation Act provides a trial court the discretion to tax costs incurred by an injured party in pursuing their claim against an employer. However, this discretion is not unfettered and in Ex parte Ampro Prod., Inc., No. 2160818, 2017 WL 4563053, at *1 (Ala. Civ. App. Oct. 13, 2017), the Alabama Court of Civil Appeals addressed the properness of such costs.

environmental

INSURER BOUND BY INSURED’S PROMISE TO PARTICIPATE IN ENVIRONMENTAL CLEANUP

The United States District Court for the Southern District of Indiana has ruled that an insurer must bear the costs of a remediation agreement entered into voluntarily by the policyholder without the insurer’s knowledge or consent. Southern Pilot Ins. Co. v. Matthews Auto Repair, Inc., 2017 BL 425647; No. 17-cv-01027 (S.D. Ind., November 29, 2017). In 2016, an environmental investigation revealed toxic waste on Matthews Auto’s property. Subsequently, Matthews Auto entered into a voluntary remediation agreement with the Indiana Department of Environmen

construction

THIRD DISTRICT COURT OF APPEAL OF FLORIDA HOLDS THAT PARTIES ARE ABLE TO INCLUDE A PROVSION IN A CONTRACT WHICH PRECLUDES THIRD PARTY BENEFICIARY STATUS

In Perez-Gurri Corp. v. McLeod, No. 3D15-2590, 2017 WL 5616924, at *1 (Fla. Dist. Ct. App. Nov. 22, 2017), the District Court of Appeal of Florida, Third District, overturned a trial court’s decision to preclude a general contractor from seeking delay damages on the basis that the subcontractors were not intended third-party beneficiaries of the contract between the general contractor and the owner.

employment

EEOC SUCCEEDS IN BRINGING SEXUAL ORIENTATION DISCRIMINATION LAWSUIT UNDER TITLE VII

More and more plaintiffs are testing the judicial waters by bringing claims for discrimination based on sexual orientation under Title VII. Just recently, the Equal Employment Opportunity Commission (“EEOC”) celebrated its first success in a sexual orientation discrimination lawsuit.

architects and engineers

ILLINOIS COURT OF APPEALS AFFIRMS DESIGN PROFESSIONALS NOT LIABLE FOR BREACH OF WARRANTY OF HABITABILITY DESPITE CONTRACTOR’S INSOLVENCY

In Sierra Court Condominium Association v. Champion Aluminum Corporation, 2017 IL App (1st) 143364, 75 N.E.3d 260 (Ill. Ct. App. 2017), First District Appellate Court of Illinois reaffirmed architects and engineering firms are not subject to the implied warranty of habitability of construction, even in the event the developer and general contractor are insolvent.

securities

ARBITRATION PANEL GRANTS EXPUNGEMENT IN RECENT CASE

Our firm recently obtained an award from a FINRA panel granting a Motion for Expungement. The claim (Arbitration number 16-01770) was filed in June, 2016 and alleged negligence, breach of fiduciary duty, negligent supervision, and breach of contract. The claims were related to charges Claimant suffered when he surrendered a fixed annuity and losses he incurred in various types of moderately aggressive investments.

coverage

RECENT COURT RULING DETERMINES NO COVERAGE FOR EMAIL FRAUD

The Eastern District of Michigan recently entered summary judgment in favor of an insurer in a coverage dispute concerning a computer fraud provision in American Tooling Center, Inc. v. Travelers Cas. & Sur. Co. of America, 2017 WL 3263356.

environmental

WISCONSIN FEDERAL DISTRICT COURT ALLOWS PCB CITIZEN SUIT UNDER RCRA

The United States District Court for the Western District of Wisconsin has ruled that a citizen suit related to the release of polychlorinated biphenyls (PCBs) may be brought under the Resource Conservation and Recovery Act, (RCRA), even though PCBs are regulated under the Toxic Substances Control Act (TSCA). Liebhart v. SPX Corp., No. 16-cv-700 (W.D. Wis., November 2, 2017). Plaintiffs, who owned land adjacent to a factory used to produce electrical transformers in the 1950s, brought suit against SPX, alleging PCBs were released during demolition of the factor

employment

ELEVENTH CIRCUIT HOLDS THAT BREASTFEEDING EMPLOYEES ARE ENTITLED TO PROTECTION UNDER THE PREGNANCY DISCRIMINATION ACT

Recently, the U.S. Court of Appeals for the Eleventh Circuit determined that breastfeeding is a related medical condition to birth, and different treatment based on an employee’s breastfeeding is prohibited under the Pregnancy Discrimination Act (“PDA”). In Hicks v. City of Tuscaloosa, 870 F.3d 1253 (11th Cir. 2017), the plaintiff was a police officer who took twelve weeks of unpaid leave under the Family Medical Leave Act (“FMLA”) following the birth of her son.

construction

ELEVENTH CIRCUIT COURT OF APPEALS AFFIRMS NECESSITY TO INCLUDE SPECIFIC TIMEFRAME IN CONTRACT IN ORDER TO PROPERLY EXTEND INDEMNITY AND DEFENSE OBLIGATIONS BEYOND SEVEN YEAR STATUTE OF REPOSE FOR ANY CLAIM AGAINST AN ARCHITECT, ENGINEER, OR BUILDER

In Sears, Roebuck & Co. v. Hardin Constr. Grp., Inc., 697 F. App'x 637 (11th Cir. 2017), the United States Court of Appeals for the Eleventh Circuit affirmed the United States District Court for the Southern District of Alabama’s conclusion that a specific written timeframe is necessary in order to extend Alabama’s statute of repose.

securities

FINRA SEEKS COMMENT ON THE EFFICACY OF ALLOWING COMPENSATED NON ATTORNEYS TO REPRESENT PARTIES IN ARBITRATION

The FINRA Codes of Arbitration and Mediation Procedure currently allow compensated non-attorney representatives (“NAR”) to represent clients in securities arbitration and mediation subject to some exceptions. Some parties are represented by relatives or friends who assist with case preparation or presentation. NAR firms typically provide public investors an alternative to representation by attorneys in disputes between investors and broker dealers. FINRA is conducting a review of the efficacy of continuing to allow such representation and is accepting comments from memb

architects and engineers

OREGON SUPREME COURT HOLDS THAT THE PRACTICE OF ARCHITECTURE INCLUDES THE DEVELOPMENT OF MASTER PLANS

In Twist Architecture & Design, Inc. v. Oregon Board of Architect Examiners, 361 Or. 507, 395 P.3d 574 (Or. 2017), the Supreme Court of Oregon ruled that the “practice of architecture” includes the preparation of master plans drawn to scale for the development of a project, even if construction drawings or specifications are not ultimately produced.

securities

THE ALABAMA SUPREME COURT CONFIRMS DISCOVERY MUST BE LIMITED IN STATE COURT WHILE A MOTION TO COMPEL ARBITRATION IS PENDING

In Ex parte Locklear Chrysler Jeep Dodge, LLC and Locklear Automotive Group, Inc., the Alabama Supreme Court granted a Petition for Writ of Mandamus (“Petition”), finding that the trial court exceeded its discretion when it granted a Motion to Compel discovery on issues unrelated to arbitration while a Motion to Compel arbitration was presently pending.

construction

LOUISIANA FEDERAL COURT, INTERPRETING A CONSTRUCTION CONTRACT, HOLDS A CONSEQUENTIAL DAMAGES WAIVER MAY NOT BAR A CLAIM FOR LOST PROFITS

In Team Contractors, L.L.C. v. Waypoint Nola, L.L.C., et al., No. CV 16-1131, 2017 WL 4366855 (E.D. La. Sept. 29, 2017), the United States District Court for the Eastern Division of Louisiana concluded that because the contract was ambiguous as to whether the type of lost profits sought in the case were considered “consequential damage” by the terms of the contract, the matter was not ripe for summary judgment as it required it to determine whether the parties intended such damages to fall within the contract’s “consequential damages” waiver.

environmental

SIXTH CIRCUIT REMANDS FLINT WATER SUPPLY CLASS ACTION TO STATE COURT

The Circuit Court of Appeals for the Sixth Circuit has held that residents of Flint, Michigan, may pursue class claims against state actors in state court. Mays v. City of Flint, 47 E.L.R. 20112, No. 16-2484, (6th Cir., September 11, 2017). In January 2016, several plaintiffs filed a class-action lawsuit in state court alleging they had been harmed since April 2014 by the toxic condition of the Flint water supply. In April 2016, defendants sought removal under 28 U.S.C. §1442, the federal-officer removal statute, and 28 U.S.C. §1441, which allows removal of state

architects and engineers

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ANALYZES ARCHITECTURAL COPYRIGHT INFRINGEMENT BETWEEN TWO HOMEBUILDERS

In Sedgewick Homes, LLC v. Stillwater Homes, Inc., 2017 WL 3221488 (W.D. NC. 2017), the United States District Court for the Western District of North Carolina ruled there was a genuine issue of material fact as to whether Stillwater Homes, Inc. (“Stillwater”) infringed upon the copyrighted architectural plans of its competitor, Sedgewick Homes, LLC (“Sedgewick”). Sedgewick and Stillwater are home builders in North Carolina, who both interacted with two customers, the Bivins and the Shoemakers.

employment

REASONABLE ACCOMMODATIONS UNDER THE ADA BEYOND FMLA ENTITLEMENT

The Seventh Circuit Court of Appeals recently ruled in Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir. Sept. 20, 2017) that the ADA does not require employers to accommodate employees by granting them leave well beyond the employee’s leave entitlement under the FMLA. The Court addressed what amount of leave constitutes a reasonable accommodation under the ADA and concluded that employers are not required to provide multiple months of additional leave, despite a stipulation of definite duration, to employees who have already exhausted their 1

securities

OCTOBER IS FINRA MEDIATION SETTLEMENT MONTH

Every October, FINRA’s Office of Dispute Resolution significantly reduces mediation prices in order to encourage mediation and settlement of customer and industry disputes. The goal of Settlement Month is to encourage parties to experience the benefits of mediation for the first time and to reinforce its value and effectiveness for those who have been through the mediation process already.

construction

FIFTH DISTRICT COURT OF APPEAL OF FLORIDA HOLDS THAT SUBCONTRACTS CONTAINING MERGER CLAUSES WILL APPLY RETROACTIVELY TO DATE WORK FIRST COMMENCES AND FAILURE TO ADEQUATELY PLEAD DEFENSE RAISING FAILURE TO COMPLY WITH CONDITION PRECEDENT ACTS AS BAR TO THE OTHERWISE VALID DEFENSE

In Don Facciobene, Inc. v. Hough Roofing, Inc., No. 5D15-1527, 2017 WL 3091578 (Fla. Dist. Ct. App. July 21, 2017), the Fifth District Court of Appeal of Florida held that although a valid merger clause in subcontract signed after the subcontract was almost completed, it applied retroactively to the date work first commenced. However, the Court held that failure by general contractor to plead an affirmative defense regarding a condition precedent in the subcontract with enough specificity and particularity as required under Florida Rules of Civil Procedure

architects and engineers

SUBSTANTIAL COMPLETION IS DETERMINABLE BY COURTS DESPITE ARCHITECT’S OPINION

In Parkcrest Builders, LLC v. Housing Authority of New Orleans, 2017 WL 3394033 (E.D. LA. 2017), the United States District Court for the Eastern District of Louisiana held the Court could determine whether substantial completion had been achieved, despite a contract provision assigning this determination to the Architect.

employment

ELEVENTH CIRCUIT HOLDS GENDER NONCONFORMITY CLAIMS TO BE A DISTINCT AVENUE OF RELIEF UNDER TITLE VII

An Eleventh Circuit Court of Appeals panel held that a “gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’” but is instead a “separate, distinct avenue for relief under Title VII.” The majority opinion explained that Title VII recognizes discrimination based on a failure to conform to a gender stereotype (i.e., discrimination based on gender non-conformity) as a type of sex-based discrimination, but declined to hold that Title VII can provide relief for an individual claiming sex-based discrimination on the basis of their

environmental

NINTH CIRCUIT PROVIDES GUIDANCE ON CERTAINTY AND FINALITY REQUIREMENTS IN CERCLA CONTRIBUTION ACTIONS

The Ninth Circuit Court of Appeals vacated a District Court’s summary judgment in favor of the defendant in a contribution action under CERCLA, finding mining company Asarco timely brought a claim to recoup compensation from Atlantic Richfield. Asarco, LLC v. Atlantic Richfield Co., No.14-35723 (9th Cir., August 10, 2017). CERCLA § 113(f) provides that after a party has, pursuant to a settlement agreement, resolved its liability for a “response” action or the costs of such an action, that party may seek contribution from any person who is not a party t

workers compensation

SUPERVISORS’ FAILURE TO INSTALL A SAFER SAW THAT WAS ON THE PREMISES IS NOT EQUIVALENT TO A REMOVAL OF A SAFETY GUARD FOR PURPOSES OF LIABILITY UNDER THE ALABAMA WORKERS’ COMPENSATION ACT

In Saarinen v. Hall, 26 ALW 36-8 (1160066), 9/1/2017, the Supreme Court held that the failure of the employee’s supervisors to install a safer saw that was on the employer’s premises was not the equivalent of removing a safety guard from an existing saw so as to subject the supervisors to liability under the Alabama Workers’ Compensation Act.

workers compensation

EMPLOYEE BEARS THE BURDEN OF ESTABLISHING MEDICAL CAUSATION AND CONFLICTING EVIDENCE DOES NOT HAVE TO BE RESOLVED IN FAVOR OF EMPLOYEE

In Wyatt v. Baptist Health Sys., Inc., No. 2160280, 2017 WL 3096691, at *1 (Ala. Civ. App. July 21, 2017), the Alabama Court of Civil Appeals clarified that the Plaintiff bore the burden of establishing medical causation and that the fact finder did not have to resolve all reasonable doubts in conflicting medical evidence in her favor.

workers compensation

THE RETURN TO WORK STATUTE MUST BE PLEAD AS AN AFFIRMATIVE DEFENSE OR IS DEEMED WAIVED

In Grieser v. Advanced Disposal Services Alabama, LLC, 26 ALW 33-4 (2160290), 8/11/17, the Court of Civil Appeals reversed a trial court’s refusal to consider the employee’s vocational disability and held that separate circumstances relieving an employer’s liability under the “Return to Work” statute are affirmative defenses which must be plead or are deemed waived.

construction

FEDERAL COURT HOLDS AN ALABAMA SUBCONTRACTOR WITHOUT A PROPER LICENSE CANNOT ENFORCE ITS CONTRACT WITH A ROOFING SUPPLIES DISTRIBUTOR

In Am. Builders & Contractors Supply Co. v. Precision Roofing & Consulting, LLC, No. 2:17CV97-WHA, 2017 WL 3431844, (M.D. Ala. Aug. 9, 2017), the United States District Court for the Middle District of Alabama dismissed a breach of contract claim filed against a distributor that provided supplies to a roofing subcontractor in light of the plaintiff, a subcontractor, having failed to obtain its own license at the time work commenced.

architects and engineers

FLORIDA COURT OF APPEALS DETERMINES DESIGN PROFESSIONAL MUST HOLD LICENSE TO BE SUED FOR PROFESSIONAL NEGLIGENCE

In Sunset Beach Investments, LLC v. Kimley-Horn and Associates, Inc., 207 So. 3d 1012 (Fla. Ct. App. 2017), the Fourth District Court of Appeal of Florida held an engineering intern could not be liable for professional negligence. The Court explained an “engineer intern” could not be considered a professional because he does not maintain a license.

employment

UPS PAYS $2 MILLION TO SETTLE DISABILITY CLAIMS

The United Parcel Service (“UPS”) recently agreed to pay $2 million to settle the claims of approximately 90 disabled employees. Approximately 70 employees were parties to a lawsuit filed by the EEOC and the remaining 20 had pending administrative Charges.

environmental

D.C. CIRCUIT STRIKES DOWN HYDROFLUOROCARBON BAN

The United States District Court for the District of Columbia has ruled the Environmental Protection Agency does not have authority under the Clean Air Act to force companies that use hydrofluorocarbons (“HFCs”) in products like spray cans, automobile air conditioners and refrigerators to replace the HFCs with an EPA-approved alternative. The EPA enacted the rule in 2015, responding to research showing HFCs contribute to climate change. Mexichem Flour Inc. and Arkema Inc. challenged the rule’s legality.

securities

THE DEPARTMENT OF LABOR SEEKS AN 18 MONTH DELAY ON THE FIDUCIARY RULE’S EXEMPTIONS

The Department of Labor (“DOL”) recently submitted a proposal to delay implementation of the remaining parts of its fiduciary rule from January 1, 2018 until July 1, 2019. Two provisions of the rule, which greatly expands the definition of who counts as a fiduciary under the Employee Retirement Income Security Act and the Internal Revenue Code, took effect on June 9, 2017. One remaining provision includes the best interest contract exemption, which allows brokers to charge variable compensation for products as long as they sign a legally binding agreement to put their c

construction

FIFTH CIRCUIT REFUSES TO BROADEN SCOPE OF AFFIRMATIVE DUTY TO WARN BASED ON CONTRACTOR’S EXPERTISE

In LaShip, LLC v. Hayward Baker, Inc., No. 15-30816, 2017 WL 829503 (Mar. 1, 2017), the Fifth Circuit held a commercial contractor was not required to warn the owner of alleged defects in the design specifications of foundation columns that were provided by the engineer despite the fact the contractor had specialized experience in foundation design. The Fifth Circuit refused to broaden the affirmative tort duty to warn based on a party’s expertise and upheld the statutory protections for the contractor.

securities

SEC APPROVES FINRA’S PROPOSED RULE CHANGE TO EXPEDITE THE ARBITRATOR LIST SELECTION

The SEC approved a proposed rule change to amend FINRA Rules 12402 and 12403 of the Customer Code and Rule 13403 of the Industry Code to allow the Director of FINRA’s Office of Dispute Resolution (“Director”) to send the list generated by the Neutral List Selection System to all parties at the same time, within 30 days after the last answer is due. The list will now be sent within this time, regardless of whether the parties agree to extend any answer due date.

environmental

U.S. DISTRICT JUDGE REJECTS ELK RIVER CHEMICAL SPILL SETTLEMENT

A West Virginia federal judge rejected a proposed $151 million deal reached by American Water Works and Eastman Chemical that would have settled class claims arising from a 2014 coal-processing chemical spill, but indicated the agreement is salvageable. Good et al. v. American Water Works Co. Inc. et al., Case No. 2:14-cv-01374, (S.D. W. Va., July 6, 2107). The chemical, called methylcyclohexane methanol, or crude MCHM, caused nausea, vomiting and eye irritations that led to infecti

employment

DEPARTMENT OF LABOR RECONSIDERING MINIMUM SALARY FOR WHITE COLLAR EXEMPTION

Since November 2016, a nationwide injunction has prevented the Obama Administration’s new overtime rule for white collar workers from going into effect. The Obama-era rule, which increase the minimum annual salary required to support exempt status from $23,660.00 to $47,476.00, was poised to convert millions of employees from exempt to non-exempt from the FLSA’s overtime rules. Many employers re-classified employees, increased salaries or both in an effort to comply with the new standard, which was scheduled to take effect in December 2016. Since the injunction, tho

architects and engineers

MISSOURI COURT OF APPEALS INTERPRETS STATUTE REGARDING WHAT IS INCIDENTAL TO THE PRACTICE OF ARCHITECTURE

In Curtis v. Miss. Board For Architects, Prof. Engineers, Prof. Land Surveyors, and Prof. Landscape Architects, No. WD 80174, 2017 WL 2241516 (Mo. Ct. App. May 23, 2017), the Missouri Court of Appeals affirmed the Missouri Board of Architects, Professional Engineers, Professional Land Surveyors, and Professional Landscape Architects’ (the “Board”) disciplinary order against an architect for violations of a previous probation order. Donald Dustin Curtis was an architect based in Arizona and licensed in multiple jurisdictions, including Missouri. Mr. Curtis’s

professional liability

FIFTH CIRCUIT RULES PLAINTIFF IN MISSISSIPPI LEGAL MALPRACTICE ACTION FAILED TO PROVE HER CASE WITHIN A CASE

In Kennedy v. Hall, No. 16-60569, 2017 WL 664041, at *1 (5th Cir. Feb. 17, 2017), the Fifth Circuit affirmed summary judgment for a Mississippi attorney and his law firm in a legal malpractice action applying the “case-within-a-case” doctrine. Mississippi law requires the plaintiff in a malpractice action to prove by a preponderance of the evidence 1) the existence of a lawyer-client relationship, 2) negligence by the lawyer, 3) proximate cause, and 4) injury.

architects and engineers

SUPREME COURT OF TEXAS CLARIFIES HOW CERTIFYING EXPERT MAY DEMONSTRATE KNOWLEDGE OF THE DEFENDANT DESIGN PROFESSIONAL’S AREA OF PRACTICE PURSUANT TO TEXAS’S CERTIFICATE OF MERIT STATUTE

In Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corporation, No. 16-0078, 2017 WL 2492006 (Tex. June 9, 2017), East Rio Hondo Water Supply Corp. contracted with Melden & Hunt, Inc. to provide engineering-design and project-supervision services for a new water-treatment plant in San Benito, Texas. Following substantial completion of the project, East Rio complained about the quality of water treated at the plant and attributed the water-quality issues to the plant’s design and construction. East Rio subsequently filed a complaint against Melden & Hunt a

employment

NINTH CIRCUIT’S OUTLOOK ON EQUAL PAY LAWS AND COMPETITIVE HIRING

Recent decision issued by the Ninth Circuit Court of Appeals held that an employer may defend a claim under the Equal Pay Act by proving that its pay structure was based on employees’ prior salaries, so long as this structure was reasonable and effectuated a business policy. This decision parts ways with other Circuits that have discouraged using an employee’s prior pay, by itself, to justify pay decisions.

construction

FLORIDA DISTRICT COURT HOLDS ARBITRATION PROVISION IN SALES AGREEMENT IS VOID AS AGAINST PUBLIC POLICY

In Anderson v. Taylor Morrison of Florida, Inc., No. 2D16-314, 2017 WL 2374404 (Fla. Dist. Ct. App. May 31, 2017), the Second District Court of Appeal of Florida held an arbitration provision in a homeowner’s sales agreement was void as against public policy because it limited the homeowner’s statutory remedies.

securities

ARBITRATION PANEL GRANTS ELIGIBILITY MOTION TO DISMISS AND EXPUNGEMENT IN RECENT CASE

Our firm recently obtained an award from a FINRA panel denying all of Claimant’s claims and finding for Respondents. The panel also granted our Motion for Expungement. The claim (Arbitration number 16-03568) was filed in December, 2016. Claimant alleged claims of breach of fiduciary duty, breach of contract, failure to supervise, violation of the Alabama Securities Act, violation of securities regulatory rules, ongoing fraud, and common law claims of misrepresentation, unjust enrichment and negligence. The claims were related to Claimant’s purchase of prefe

environmental

GENERAL LIABILITY INSURER HAS DUTY TO DEFEND ODOR CLAIM

A New York Appellate Court has ruled a hazardous materials exclusion did not relieve an insurer of its obligation to defend a recycling plant operator from claims the Plant is spreading a foul odor. Hillcrest Coatings, Inc. v. Colony Ins. Co., 2017 NY App. Div. LEXIS 4519 (NY 4th Dept. June 9, 2017). The five-judge panel partially upheld the lower court decision finding the insurer had a duty to defend because the source of the odor behind the underlying suit against Hillcrest Coatings is not necessarily hazardous materials.

workers compensation

IMPORTANCE OF INVESTIGATING POSSIBLE THIRD PARTY CLAIMS OF INJURED EMPLOYEES

Typically, if an employee is injured on the job they can file two types of actions. First, and the most traditional, is filing suit against their employer for workers’ compensation benefits. Second, if the injured employee sustained the injury as a result of a defective product or in a car accident involving an individual who is not a co-employee, they have the right to file a separate suit against that entity or individual.

coverage

MASSACHUSETTS HIGH COURT HOLDS DEFENSE OBLIGATION DOES NOT EXTEND TO COUNTERCLAIMS

The Massachusetts Supreme Court recently issued the most comprehensive opinion to date addressing whether an insurer’s duty to defend extends to counterclaims asserted by the insured. The court in Mount Vernon Fire Ins. Co. v. VisionAid,Inc., SJC-12142 (Mass. 2017), held that where an insurance policy provides that the insurer has the “duty to defend any claim” initiated against the insured, the insurer’s duty to defend does not require it to prosecute affirmative counterclaims on behalf of its insured.

professional liability

IRS ISSUES GUIDANCE NOTICE CLASSIFYING SYNIDCATED CONSERVATION EASEMENT TRANSACTIONS AS “LISTED TRANSACTIONS”

On January 17, 2017, the IRS issued a Guidance Notice classifying syndicated conservation easement transactions as “Listed Transactions,” or presumed tax shelters.

coverage

STATE SUPREME COURT ISSUES CONFUSING RULING EXTENDING EFFICIENT PROXIMATE CAUSE RULE TO THIRD PARTY COVERAGE QUESTION

The Washington State Supreme Court recently published an opinion that may impact how courts will approach exclusions in certain liability policies. In Xia v. ProBuilders Specialty Insurance Company, 2017 WL 1532219 (Wash. Apr. 27, 2017), a homeowner became ill soon after moving into a new house. It later was determined an improperly installed exhaust vent for the hot water heater discharged carbon monoxide into the basement of the home.

employment

THE RISE OF BAN THE BOX LAWS

The National Employment Law Project (“NELP”) partnered with several other organizations to spearhead a grassroots movement to encourage employers to change their policies to consider the qualification of job applicants without consideration of their criminal history. Prior to the efforts of NELP, it was commonplace for an employer to ask a job applicant whether the applicant has been convicted of a crime.

architects and engineers

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK GRANTS AN ARCHITECT’S MOTION FOR SUMMARY JUDGMENT AGAINST CROSS CLAIMS FOR INDEMNIFICATION AND CONTRIBUTION BASED ON CONSTRUCTION DEVIATIONS FROM THE ARCHITECT’S DESIGN

In Corwin v. NYC Bike Share, LLC, No. 14-CV-1285, 2017 WL 1399034 (S.D.N.Y. Apr. 13, 2017), the Southern District of New York granted a Motion for Summary Judgment in favor of Alta Planning + Design + Architecture of New York, PLLC (“APD”) against the City of New York (the “City”) based on deviations from APD’s design of a bike share station which the Court concluded constituted an intervening cause of the alleged damage.

construction

FLORIDA APPELLATE COURT FINDS POST-CLOSING REPAIR WORK MAY DELAY START OF CONSTRUCTION DEFECT STATUTE OF REPOSE

In Busch v. Lennar Homes, LLC, No. 5D16-1626, 2017 WL 1372085 (Fla. Dist. Ct. App. April 13, 2017), Florida’s Fifth District Court of Appeals found the trial court improperly dismissed the Homeowner’s complaint regarding construction defects based on the ten year statute of repose. The Court determined the Homeowner’s complaint was not barred by the ten year statute of repose, because the purchase contract contained a provision allowing the builder to correct defects within a reasonable time after closing and the complaint did not conclusively establish that such

environmental

EXPERT TESTIMONY ON HEALTH RISKS ADMISSIBLE DESPITE LACK OF CLAIMS FOR PERSONAL INJURY

A Mississippi federal court has held expert testimony regarding health risks posed by exposure to the disposal of a hazardous waste is admissible, even though plaintiffs did not assert claims for personal injuries. Hollingsworth v. Hercules, Inc., 2:14-cv-KS-MTP (S. D. Miss. Jan. 3, 2017). The testimony was offered by two experts for the defendant, a company that operated a chemical plant in Hattiesburg, Mississippi from the 1920s until 2009.

securities

FINRA REVIEWS RULES ON OUTSIDE BUSINESS ACTIVITIES AND PRIVATE SECURITIES TRANSACTIONS

In Regulatory Notice 17-20, FINRA announced it is requesting comments on Rules 3270 and 3280 governing outside business activities and private securities transactions. The request for comments comes as a result of FINRA’s new retrospective rule review. The review concentrates on rules governing broker dealer employees’ business and securities activities carried out away from their firm—activities that are outside the regular course of scope of their employment with the firm.

workers compensation

AARON ASHCRAFT OBTAINS DEFENSE VERDICT IN SHELBY COUNTY, ALABAMA

In Lawley v. Chelsea Hidden Acres, Aaron Ashcraft obtained a defense verdict from Judge Sonny Conwill following a bench trial. The Plaintiff alleged she sustained an injury in the course and scope of her employment as a patient care tech, lifting a resident out of a bed on July 23, 2013.

coverage

FIFTH CIRCUIT CLARIFIES TREATMENT OF INDEPENDENT COUNSEL FEES IN MISSISSIPPI

In Federal Ins. Co. v. Singing River Health System, 850 F.3d 187 (5th Cir. 2017), the Fifth Circuit overturned a district court decision that briefly left insurers in doubt whether fees paid to independent counsel could erode the limits of a burning-limits liability policy. In Moeller v. American Guar & Liab. Ins. Co., 707 So. 2d 1062 (Miss. 1996), the Mississippi Supreme Court held that a defense provided under a reservation of rights creates a conflict of interest requiring that the insured be provided an opportunity to select its own independent counsel

architects and engineers

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO DENIES A MOTION FOR SUMMARY JUDGMENT BASED ON THE PLAIN MEANING OF AN ENGINEERING SERVICES CONTRACT

In United States of America v. Osborne, No. 4:11-CV-1029, 2017 WL 1135640 (N.D. Ohio March 27, 2017), the Northern District of Ohio denied a Motion for Summary Judgment filed by Third-Party Defendant William R. Gray Associates, Inc. (“Gray”) based on the permit procurement obligations in Gray’s agreement for engineering services with Third-Party Plaintiff City of Willoughby (the “City”).

construction

NEW YORK APPELLATE COURT FINDS CONTRACTOR NOT LIABLE FOR DEFECTS WHEN FOLLOWING OWNER’S INSTRUCTIONS UNDER DESIGN SPECIFICATION CONTRACT

In CGM Const., Inc. v. Sydor, 42 N.Y.S.3d 407 (N.Y. App. Div. 2016), the New York Supreme Court, Appellate Division for the Third Department, held a contractor was not liable for alleged inadequate work performed on the owner’s property, because the contractor followed the owner’s instructions when performing the work. The Court found the contract was a design specification contract, which allows a contractor not to be held liable for defects when the contractor follows the plans and specifications provided.

employment

SEXUAL ORIENTATION AND THE PROTECTIONS AFFORDED BY TITLE VII: RIPE FOR SUPREME COURT REVIEW

In early April, the United States Court of Appeals for the Seventh Circuit became the first Federal Circuit Court to hold that discrimination on the basis of sexual orientation is a form of sex discrimination and, therefore, prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”). The Seventh Circuit’s decision sides with the position taken by the EEOC, which has been pushing to extend Title VII’s protections to include sexual orientation.

environmental

COURT DISMISSES CERLCA CLAIMS AGAINST CHURCH AND DISPOSAL COMPANY

The United States District Court for the Eastern District of New York has held that Defendants responsible for dumping hazardous waste in a town park are not liable under CERCLA because they did not know of the hazardous nature of the material dumped. Town of Islip v. Datre, 47 E.L.R. 20049 (E.D.N.Y. 2017).

securities

FINRA ARBITRATION 2016 STATISTICS

Arbitration case filings for year-end 2016 reflected a 7 percent increase compared to cases filed in 2015 during the same time frame. More specifically, 3,435 cases were filed in 2015, but 3,681 cases were filed in 2016. Of the 3,681 cases filed, 68 percent or 2,519 were customer disputes and 32 percent or 1,162 were intra-industry disputes.

coverage

ELEVENTH CIRCUIT HOLDS INSURER NEED NOT REIMBURSE PRE TENDER FEES

The Eleventh Circuit recently affirmed summary judgment in favor of an insurer on the issue of pre-tender defense costs in EmbroidMe.com, Inc. v. Travelers Property & Casualty Company of America, 845 F.3d 1099 (11th Cir. 2017). Applying Florida law, the court denied the insured’s breach of contract suit for over $400,000 in fees incurred before the insured notified its insurer.

workers compensation

COURT DISMISSES PLAINTIFF’S LAWSUIT FOR FAILURE TO COMPLY WITH DISCOVERY

In Horton v. Hinton, 26 ALW13-4 (2150631), the Court of Civil Appeals affirmed a trial court’s dismissal of a lawsuit based on plaintiff’s failure to comply with discovery orders.

professional liability

ALABAMA SUPREME COURT REVERSES SUMMARY JUDGMENT FOR ATTORNEY IN LEGAL MALPRACTICE ACTION, FINDING A QUESTION OF FACT AS TO PLAINTIFF’S “CASE WITHIN A CASE”

In Bond v. McLaughlin, 2017 WL 728176, --- So.3d --- (Ala. 2017), the Alabama Supreme Court reversed summary judgment for an attorney in a legal malpractice action, finding a question of fact as to whether plaintiff could prove her “case within a case.”

architects and engineers

TEXAS’S CERTIFICATE OF MERIT STATUTE REQUIRES CERTIFYING EXPERT TO DEMONSTRATE KNOWLEDGE OF THE DEFENDANT DESIGN PROFESSIONAL’S AREA OF PRACTICE

In Levinson Alcoser Associates, L.P. v. El Pistolón II, LTD., No. 15-0232, 2017 WL 727269 (Tex. Feb. 24, 2017), the Supreme Court of Texas held Texas’s recently amended Certificate of Merit statute requires a plaintiff to accompany his complaint not only with a sworn Certificate of Merit from an expert stating the claim has merit, but also, the Certificate of Merit must demonstrate the expert has knowledge of the area of practice to which the complaint relates.

construction

FIFTH CIRCUIT ADDRESSES THE TRIGGER FOR LIEN FILINGS

In Golden Nugget Lake Charles, LLC v. W.G. Yates & Sons Constr. Co., No. 16-30496, 2017 WL 892407 (5th Cir. Mar. 6, 2017), the Fifth Circuit Court of Appeals determined the 60-day period for general contractors to file a lien against a project owner’s property under Louisiana Private Works Act § 9:4822(B) does not begin to run until the owner files either a Notice of Termination or a Notice of Substantial Completion. The Court rejected the owner’s interpretation of the statute that the 60-day period begins when the event of substantial

employment

PUSHING BACK AGAINST EEOC REQUESTS FOR INFORMATION AND SUBPOENAS

A recent decision issued by the Tenth Circuit Court of Appeals provides support for employers seeking to avoid broad and seemingly irrelevant Requests for Information by the Equal Employment Opportunity Commission (“EEOC”). While an employer’s response to Requests for Information is usually an avenue to support its defenses, in the rare instance of overreaching or an apparent fishing expedition, employers have additional authority with which to negotiate a compromise regarding the scope of the EEOC’s requests.

environmental

FOURTH CIRCUIT AFFIRMS RULING THAT CERCLA’S DISCOVERY RULE ONLY APPLIES WHERE THERE IS A VIABLE CERCLA CLAIM

The United States Court of Appeals for the Fourth Circuit has ruled CERCLA’s discovery rule applies to toll West Virginia’s statutes of limitations only where the plaintiff has a viable CERCLA claim. Blankenship v. Consolidation Coal Company, et al., No. 15-2480 & 2482 (4th Cir., March 7, 2017).

securities

THE ELEVENTH CIRCUIT HOLDS THAT THE SAFE HARBOR PROVISION IS AVAILABLE TO DEFENDANTS IN SEC ENFORCEMENT ACTIONS

In SEC v. Levin, the United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”) held that the safe harbor provision of Regulation D’s Rule 508(a) is available to a defendant in a Securities and Exchange Commission (“SEC”) enforcement action based on a failure to register securities under Section 5 of the Securities Act.

coverage

POLLUTION EXCLUSION PRECLUDES COVERAGE FOR CARBON MONOXIDE DAMAGES

Last week, the District of Oregon became the latest court to rule on the pollution exclusion that appears in almost every general liability policy. The court in Colony Insurance Company v. Victory Construction LLC, 2017 WL 960024 (D. Or. Mar. 9, 2017), concluded Colony had no duty to defend or indemnify its insureds for two bodily injury lawsuits arising from the release of carbon monoxide from a pool heater.

workers compensation

ALABAMA SUPREME COURT AFFIRMS EMPLOYERS RIGHT TO CLAIM IMMUNITY FROM TORT CLAIMS FOR EMPLOYEES INJURED ON THE JOB WHO ARE OBTAINED THROUGH STAFFING AGENCIES

In Ex parte Tenax Corp., the Alabama Supreme Court reaffirmed that the exclusive-remedy provisions of the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala. Code 1975 can provide immunity from tort claims filed by workers’ provided to an employer through a staffing agency.

construction

FLORIDA APPEALS COURT HOLDS CONTRACTOR NOT LIABLE FOR PLAYGROUND DEFECTS AFTER CITY FAILED TO GIVE CONTRACTOR NOTICE AND OPPORTUNITY TO CURE DEFECTS

Magnum Construction Management Corp. v. City of Miami Beach, No. 3D15-2239, 2016 WL 7232268 (Fla. Dist. Ct. App. Dec. 14, 2016), the Third District Court of Appeal of Florida found the City of Miami Beach was precluded from recovering damages for construction defects...

architects and engineers

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AFFIRMS A LOWER COURT’S DECISION GRANTING A MOTION FOR SUMMARY JUDGMENT BASED ON THE PROFESSIONAL SERVICES EXCLUSIONARY PROVISION IN A COMMERCIAL GENERAL LIABILITY POLICY.

In Orchard, Hiltz & McCliment, Inc. v. Phoenix Insurance Co., Nos. 16-1176 & 16-1231, 2017 WL 244787 (6th Cir. 2017), the United States Court of Appeals for the Sixth Circuit affirmed a lower court’s grant of Summary Judgment against the Engineer, Orchard, Hiltz & McCliment, Inc. (“OHM”)...

employment

THE EEOC UNDER A TRUMP ADMINISTRATION

President Donald Trump appointed Victoria Lipnic (“Ms. Lipnic”) as the new Chairwoman of the Equal Employment Opportunity Commission (“EEOC”). Ms. Lipnic is not new to the EEOC. She has been an EEOC Commissioner since 2010 and was a President Obama appointee.

environmental

DUPONT AND CHEMOURS SETTLE MDL RELATED TO PFOAS

Chemours and DuPont, its former owner, have agreed to pay $671 million to resolve multidistrict litigation in Ohio federal court alleging DuPont improperly released cancer causing chemicals into the Ohio River. There were over 3,400 lawsuits in the multidistrict litigation pending against DuPont over the contamination.

securities

HIGHLIGHTS FROM THE FINRA 2017 REGULATORY AND EXAMINATION PRIORITIES LETTER

FINRA released its Regulatory and Examination Priorities Letter for 2017. The letter provides information about areas FINRA plans to review in its 2017 exams based on observations from their regulatory programs, as well as input from various stakeholders, including broker dealers, other regulators and investor advocates.

coverage

TEXAS FEDERAL COURT APPLIES ANSWERS TO CERTIFIED QUESTIONS IN INTERPRETING AND APPLYING PROPERTY DAMAGE EXCLUSIONS

The Southern District of Texas has issued its latest ruling in U.S. Metals, Inc. v. Liberty Insurance Corp., 2017 WL 830398 (S.D. Tex. Feb. 27, 2017), a complex and longstanding coverage litigation concerning the interpretation of the “your product” and “impaired property” exclusions. U.S. Metals sold Exxon 350 flanges used to remove sulphur from diesel fuel at Exxon refineries. The flanges did not meet industry standards, and several began leaking.

workers compensation

ALABAMA COURT OF CIVIL APPEALS ADDRESSES SCOPE OF JURISDICTION FOR OUT OF STATE INJURIES

In Hand Constr., LLC v. Stringer, the Court of Civil Appeals addressed an issue regarding the scope of jurisdiction under the Alabama Worker’s Compensation Act for out of state injuries. The Plaintiff, a resident of Mobile, Alabama, entered into a contract for hire with a construction contractor operating out of Shreveport, Louisiana. The job offer was communicated to the Plaintiff while he was in Mobile, but he traveled to Louisiana to sign the employment contract.

coverage

SOUTH CAROLINA SUPREME COURT DEMONSTRATES SPECIFICITY REQUIRED IN RESERVATION OF RIGHTS LETTERS

In Harleysville Group Ins. v. Heritage Communities, Inc., 2017 WL 105021 the South Carolina Supreme Court considered the impact that vague reservation of rights letters have on an insurer's right to pursue its coverage defenses. The claim arose out of property damage to condominiums originally caused by the insureds' faulty workmanship.

coverage

ALABAMA SUPREME COURT HOLDS PRODUCTS COMPLETED WORK HAZARD AGGREGATE LIMIT DOES NOT APPLY IN ADDITION TO GENERAL AGGREGATE POLICY LIMIT

In Pharmacists Mut. Ins. Co. v. Advanced Specialty Pharmacy LLC, No. 1140046, 2016 WL 6819657 (Ala. Nov. 18, 2016), the Alabama Supreme Court reduced an award against a pharmacy’s general liability and umbrella insurer by $3M after finding underlying claims only were subject to the policies’ general aggregate limit, and not also the products/completed work hazard aggregate limit.

coverage

THE INSURANCE TRIPARTITE RELATIONSHIP WHO IS MY CLIENT ANYWAY

Insurance-appointed counsel should be familiar with the “tripartite” relationship. Those insurance-appointed counsel who defend under a reservation of rights (“ROR”) especially should be aware of the potential conflicts that befall such representation. One commentator aptly described the ROR defense as “deeply and unavoidably vexing.”1 The Supreme Court of Mississippi has recognized the “tripartite” relationship creates problems that would “tax Socrates.”

architects and engineers

COURT OF APPEALS OF KENTUCKY REVERSES A LOWER COURT’S DECISION GRANTING A MOTION FOR SUMMARY JUDGMENT BASED ON THE ECONOMIC LOSS DOCTRINE.

D.W. Wilburn, Inc. v. K. Norman Berry Associates, Architects, PLLC, No. 2015-CA-1254-MR (Ky. Ct. App. Dec. 22, 2016), the Kentucky Court of Appeals reversed a lower court’s grant of summary judgment in favor of Third-Party Defendant K. Norman Berry Associates, Architects, PLLC, the architect hired by the Oldham County Board of Education to design the North Oldham High School.

construction

NEVADA SUPREME COURT DETERMINES WHEN A NOTICE OF COMPLETION IS “ISSUED” FOR PURPOSES OF COMMENCEMENT OF ACTIONS UNDER NRS 11.2055

Dykema v. Del Webb Communities, Inc., No. 69335, 2016 WL 7626184 (Nev. Dec. 29, 2016), the Nevada Supreme Court clarified when a notice of completion is “issued” under NRS 11.2055(1)(b), which establishes the date of substantial completion for statute of repose purposes.

employment

SUPREME COURT TO RULE ON LEGALITY OF ARBITRATION AGREEMENTS PRECLUDING COLLECTIVE PURSUIT OF CLAIMS BY EMPLOYEES

As anticipated in light of the split among the Circuits, the Supreme Court agreed to consider whether arbitration agreements in employment contracts may preclude collective pursuit of claims. In a growing trend, employers have included what are effectively class action bans within employment arbitration agreements.

environmental

OHIO JURY AWARDS 12.5 MILLION VERDICT AGAINST DUPONT OVER PFAS

An Ohio federal court jury recently awarded $10.5 million in punitive damages to a man who said DuPont's chemical caused his cancer. Plaintiff alleged his drinking water was contaminated by C8, a chemical used to make Teflon, from smokestack emissions at DuPont’s Washington Works plant.

securities

RECENT CASE INVOLVING ALTERNATIVE INVESTMENTS RECEIVES AWARD FOR RESPONDENT

Our firm recently obtained an award from a FINRA panel denying all of Claimant’s claims and finding for Respondents. The claim (Arbitration number 16-01352) was filed in May, 2016. Claimant alleged claims of unsuitability, breach of fiduciary duty, breach of contract, failure to supervise, violation of the Alabama Securities Act, violation of securities regulatory rules, and common law claims of misrepresentation, unjust enrichment and negligence.

workers compensation

REASONABLY NECESSARY MILEAGE COSTS

On September 16, 2016, the Alabama Court of Civil Appeals released its decision in Page v. Southern Care, Inc., --- So.3d ---, 2016 WL4938180 regarding reimbursement of reasonably necessary mileage costs.

employment

NLRB SEEKS SUPREME COURT’S INTERVENTION TO RESOLVE CIRCUIT SPLIT OVER ENFORCEABILITY OF ARBITRATION AGREEMENTS PROHIBITING CLASS ACTION

The National Labor Relations Board (“NLRB”) filed a petition for certiori earlier this month asking the United States Supreme Court to consider the enforceability of class-action waivers in employee arbitration agreements. The arbitration agreements at issue are those that require employees to waive their right to bring or join a class action, instead requiring the employees to submit to individual arbitration. The NLRB’s position is that such agreements are invalid because they are contrary to the National Labor Relations Act’s protection of concerted activity.

architects and engineers

APPELLATE COURT AFFIRMS GRANT OF SUMMARY JUDGMENT BASED ON ILLINOIS’ CONTRIBUTION ACT

In Sandlin v. Harrah’s Illinois Corp., 2016 WL 4585932 (App. Ct. Ill. September 2, 2016), the Appellate Court of Illinois (the “Appellate Court”) affirmed a lower court’s grant of Summary Judgment for Cross-Claim Defendant Hnedak Bobo Group, Inc. (“HBG”) dismissing Cross-Claim Plaintiff Harrah’s Illinois Corporation (“Harrah’s) claims for contribution.

construction

COLORADO APPELLATE COURT HOLDS THE STATUTE OF REPOSE FOR A SUBCONTRACTOR IS TRIGGERED WHEN THAT SUBCONTRACTOR SUBSTANTIALLY COMPLETES ITS OWN WORK

In Sierra Pacific Industries v. Bradbury, 2016 WL 4699116 (Colo. App. September 8, 2016), the Colorado Court of Civil Appeals, Division I, upheld the district court’s entry of summary judgement in favor of a subcontractor on an indemnification claim for damages, costs and expenses related to an underlying construction defect claim brought by the condominium association based on the statute of repose.

environmental

EIGHTH CIRCUIT REFUSES TO CERTIFY CLASS IN CASE ALLEGING NEIGHBORHOOD CLAIMS FOR DAMAGES ARISING FROM TOXIC TORT VAPOR INTRUSION

In Ebert v. General Mills, 823 F.3d 472 (8th Cir. 2016), the United States Court of Appeals for the Eighth Circuit held the United States District Court of Minnesota’s entry of an Order certifying a proposed class of plaintiffs in an environmental pollution case was an abuse of discretion because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.” The case was remanded to the District Court with directions to revisit the issues in conformity with the Court’s holding.

securities

FINRA’S RECOMMENDATIONS FOR EXPEDITED ARBITRATIONS

FINRA allows for expedited arbitration proceedings in cases involving senior and seriously ill parties. While there is no specific rule within the Code of Arbitration Procedure, once FINRA determines that a matter involves an elderly or ill party, the case is flagged as an expedited case. FINRA then endeavors to complete the arbitration process as quickly as possible. FINRA recently formed a committee to determine how to process expedited cases more efficiently.

workers compensation

ALABAMA SUPREME COURT REVIEWS ISSUES RELATING TO COURSE AND SCOPE OF EMPLOYMENT, FINDS ASSAULT AND BATTERY AND OUTRAGE CLAIMS ARE BARRED BY THE EXCLUSIVITY PROVISION

An interesting decision concerning the course and scope of employment was recently issued by the Alabama Supreme Court, in Ex parte Lincare Inc. The Plaintiff in the action resigned from her employment with Lincare on June 6, 2014, and submitted a letter of resignation to her supervisor. After she presented her supervisor with the resignation letter, her supervisor confronted her with paperwork, which the Plaintiff forcibly removed from her supervisor’s hand.

architects and engineers

SUPERIOR COURT OF CONNECTICUT GRANTS DEFENDANT ARCHITECT’S MOTION TO DECIDE QUESTIONS OF LAW AND TO DISPENSE WITH JURY TRIAL BASED ON THE STATUTE OF REPOSE

In Town of Windsor v. Loureiro Engineering Assoc., 2016 WL 4007747 (Conn. Super. Ct. June 20, 2016), the Superior Court of Connecticut (the “Superior Court”) granted a Motion to Decide Questions of Law and to Dispense with a Jury Trial filed by Defendants Loureiro Engineering, Inc., Newman Architects, LLC, Herbert S. Newman, and Michael Raso (collectively, “Defendants”), the engineer and architects hired by Plaintiff the Town of Windsor (the “Town”) to design the Windsor High School auditorium.

construction

TEXAS SUPREME COURT HOLDS GENERAL CONTRACTOR NOT ENTITLED TO INDEMNITY FROM MANUFACTURER OF DEFECTIVE PRODUCT

In Centerpoint Builders GP, LLC v. Trussway, Ltd., 2016 WL 3413329 (Tex. 2016), the Texas Supreme Court held the general contractor, Centerpoint Builders, LLC (“Centerpoint”), was not a “seller” under the Texas Products Liability Act and could not obtain indemnity from the manufacturer of the defective product even though Centerpoint had not altered the product in any form.

environmental

DISTRICT COURT FINDS NO DUTY TO DEFEND ENVIRONMENTAL CLAIMS

Between 1978 and 2002, PCS and its predecessor sent equipment to facilities in North Carolina for repairs. During the repairs, PCBs were released. In 2003, the EPA launched an investigation of the site. The EPA settled with potentially responsible parties following its investigation.

employment

FEDERAL COURT ADDRESSES WHETHER SEXUAL ORIENTATION IS A PROTECTED CLASS UNDER TITLE VII

Last month, in Kimberly Hively v. Ivy Tech Community College, South Bend, the United States Court of Appeals for the Seventh Circuit dismissed Plaintiff Kimberly Hively’s (“Ms. Hively”) lawsuit against her employer for sexual orientation discrimination and harassment under the Civil Rights Act of 1964 (“Title VII”). Ms. Hively alleged she was denied full-time employment and promotions based on her sexual orientation.

securities

FORUM SELECTION PROVISIONS IN CUSTOMER AGREEMENTS

FINRA released Regulatory Notice 16-25 reminding broker dealers that claimants have a right to request arbitration through FINRA at any time and do not forfeit that right by signing any agreement with a forum selection provision specifying another dispute resolution process or an arbitration venue other than the FINRA arbitration forum.

architects and engineers

DISTRICT COURT GRANTS ENGINEER’S MOTION FOR JUDGMENT ON THE PLEADINGS BASED ON THE ECONOMIC LOSS DOCTRINE

In Venturedyne, Ltd. v. Carbonyx Inc., 2016 WL 3402807 (N.D. Ind. June 21, 2016), the Northern District of Indiana (the “District Court”) granted a Motion for Judgment on the Pleadings filed by Plaintiff/Counterclaim Defendant Venturedyne, Ltd. d/b/a Scientific Dust Collectors (“SDC”), an engineer hired by Defendant/Crossclaimant Carbonyx, Inc. (“Carbonyx”), to design and manufacture dust collection systems.

construction

NEW YORK APPELLATE COURT REVERSES $209,000.00 AWARD TO SUBCONTRACTOR DUE TO THE SUBCONTRACTOR’S FAILURE TO COMPLY WITH NOTICE REQUIREMENT IN THE CONSTRUCTION CONTRACT

In Schindler v. Tully Construction Co., 139 A.D.3d 930 (May 18, 2016), the New York Supreme Court, Appellate Division, reversed a trial court’s award of $209,000.00 in delay damages in favor of a subcontractor on a public contract in a nonjury trial.

environmental

PLOWING DEEMED POLLUTING UNDER CLEAN WATER ACT

The United States District Court for the Eastern District of California held the owner of a farm violated the Clean Water Act when he allowed wetlands on his property to be tilled. Duarte Nursery, Inc. v. United States Army Corps of Engineers, No. 2:13-cv-02095-KJM-AC (June 10, 2016). John Duarte, president of Duarte Nursery, purchased approximately 2,000 acres of real estate in Tehama County, California, in 2012. There had been no farming activity on the land since 1988.

employment

EEOC PROPOSES ADDITIONAL CHANGES TO EEO 1 REPORTING

On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) proposed additional changes to EEO-1 data reporting requirements, modifying its original proposal from January 2016. The original proposal, intended to enforce the prohibitions on pay discrimination in Title VII, the EPA and Executive Order 11246 regarding Equal Employment Opportunity, required employers to begin reporting pay data.

securities

RECENT RULEMAKING ITEMS APPROVED BY FINRA

FINRA recently authorized filing with the SEC two proposed amendments to rules from the Code of Arbitration Procedure for Customer Disputes and Industry Disputes. The rules affect chairperson eligibility in arbitration and the arbitrator panel selection process.

architects and engineers

ILLINOIS APPELLATE COURT REFUSES TO EXTEND THE IMPLIED WARRANTY OF HABITABILITY TO ARCHITECTS

In Bd. of Managers of Film Exchange Lofts Condo. Ass’n v. Fitzgerald Associates Architects, P.C., 2016 WL 2841978 (Ill. App. May 11, 2016), the Appellate Court of Illinois consolidated three appeals and affirmed the lower courts’ decisions not to extend the implied warranty of habitability to architects. All three consolidated cases involved condominium boards bringing actions against architects for breach of the implied warranty of habitability, a claim typically alleged against the developer.

construction

THE TEXAS COURT OF APPEALS, RELYING ON EXPERT TESTIMONY, HOLDS A COUNTY’S IMMUNITY IS WAIVED FOR BOTH DELAY AND DISRUPTION DAMAGES

In County of Galveston v. Triple B Services, LLP, 2016 WL 3025261 (Tex. Civ. App. May 26, 2016), the Court of Appeals of Texas held a contractors’ breach of contract claim against a county fell within the scope of sovereign immunity waiver for construction contracts. The Court determined the disruption damages sought by the contractor were "a direct result of owner-caused delays,” and the Texas statute providing limited waiver of sovereign immunity for delay damages was applicable.

environmental

UNITED STATES SUPREME COURT OPENS DOOR FOR LANDOWNERS TO CHALLENGE DECISIONS BY FEDERAL REGULATORS THAT USE OF PROPERTY IS RESTRICTED BY THE CLEAN WATER ACT

In a unanimous decision, the U.S. Supreme Court ruled on May 31, 2016, that property owners could file suit against the U.S. Army Corps of Engineers over the agency’s determination that their land contains “waters of the United States” covered by the Clean Water Act. Army Corps of Engineers v. Hawkes Co., 578 U.S. – (2016). The decision makes it easier for landowners to challenge the decision of federal regulators that the use of property is restricted by the Clean Water Act.

employment

11TH CIRCUIT SAYS SLUR DOESN’T CREATE A HOSTILE WORK ENVIRONMENT

This week the Eleventh Circuit Court of Appeals provided greater clarity as to what comments can establish a racially hostile work environment under Title VII. In Mahone v. CSX Transportation, Inc., Case No. 2:14-cv-00535-AKK (June 13, 2016), the Court affirmed the lower court’s grant of summary judgment for the employer finding that that a coworker’s use of the term “homeboy” was insufficient to establish a racially hostile work environment.

securities

FINRA ISSUES GUIDANCE ON USE OF STOP ORDERS DURING VOLATILE MARKET CONDITIONS

FINRA issued Regulatory Notice 16-19 in an effort to encourage firms to review their practices regarding stop orders. Registered representatives often recommend stop orders as a tool for managing market risk. Investors use stop sell orders to protect profit position in the event a stock’s price declines and stop buy orders if they have a short position to limit losses in the event a stock’s price increases. Once stop orders are triggered, they become market orders, which are inherently risky, especially in volatile market conditions.

workers compensation

COURT OF CIVIL APPEALS CLARIFIES WHEN A TRIAL COURT’S DECISION IS A FINAL JUDGMENT FOR PURPOSES OF APPEAL

In Ex parte Lowe’s Home Centers, LLC, (Ala. Civ. App. May 6, 2016)[25 ALW 20], the employee Sarah Brown (“Brown”) filed a workers’ compensation action against her employer Lowe’s Home Centers, Inc. (“Lowe’s), seeking medical treatment for her claimed back injury and an award of disability benefits.

architects and engineers

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, AFFIRMS TRIAL COURT ORDER DENYING DEFENDANT ARCHITECT’S MOTION TO DISMISS BASED ON THE STATUTE OF LIMITATIONS, APPLYING THE CONTINUOUS REPRESENTATION DOCTRINE

In Bronstein v. Omega Construction Group, Inc., 2016 WL 1577185 (N.Y. App. April 20, 2016), the Supreme Court of New York, Appellate Division, affirmed a lower court’s denial of a Motion to Dismiss filed by Defendant Michael T. Cetera, an architect hired by Plaintiffs to provide architectural services. In 2006, Plaintiffs entered into an agreement with Mr. Cetera to prepare plans for an addition to their residence.

construction

THE FIFTH CIRCUIT COURT OF APPEALS REVERSES $1.29 MILLION JUDGMENT ENTERED IN FAVOR OF CONTRACTOR

In Dallas/Fort Worth International Airport Board v. INET Airport Systems, Incorp., et al., 2016 WL 1445205 (5th Cir. April 12, 2016), the Fifth Circuit Court of Appeals reversed a trial court’s $1.29 million judgment in favor of the contractor and against the owner. The Fifth Circuit determined genuine issues of fact remained regarding whether the owner first breached the contract by failing to cooperate with the contractor to resolve change orders.

environmental

UNITED STATES SUPREME COURT REFUSES TO HEAR EXXON’S PETITION FOR WRIT OF CERTIORARI BASED UPON ALLEGED DUE PROCESS VIOLATIONS

In May 2016, the U.S. Supreme Court denied Exxon’s petition for writ of certiorari seeking review of a $236 million trial judgment against it in a groundwater contamination case in New Hampshire. The Court’s refusal to review the issues raised by Exxon leaves in place a verdict Exxon claims violates its due process rights.

employment

NEW SALARY THRESHOLD FOR FLSA WHITE COLLAR EXEMPTION

On May 18, 2016, the U.S. Department of Labor issued its final version of the overtime exemption rule applicable to white collar employees. The rule exempts from the Fair Labor Standards Act’s overtime requirements employees earning above a set salary threshold per year. The new version promulgated by the Department of Labor significantly raises that salary threshold to the new figure of $47,476.

securities

SEC APPROVES RULE REQUIRING FIRMS TO SEND AN EDUCATIONAL PAMPHLET TO THE FORMER CLIENTS OF THEIR NEWLY HIRED REPRESENTATIVES

The SEC recently approved the adoption of FINRA Rule 2273 which creates an obligation to deliver educational communication in connection with firm recruitment practices and account transfers. The new rule affects financial firms that want to recruit the former clients of newly hired representatives.

workers compensation

JOHN C. WEBB OBTAINS A DEFENSE VERDICT

John Webb recently prevailed in a workers’ compensation trial before Judge D. Alan Mann in Madison County, Alabama in Antonio Octaviano v. Coast Personnel Services, Inc.

workers compensation

COURT OF CIVIL APPEALS FINDS EMPLOYER RESPONSIBLE FOR KNEE REPLACEMENTS

In, Ex parte Reed Contracting Servs., Inc., No. 2150230, 2016 WL 360725 (Ala. Civ. App. Jan. 29, 2016), the plaintiff, Henry Riley (“Riley”), injured both of his knees and wrists during the course of his employment with his employer, Reed Contracting Services (“Reed”) when he fell from a man lift in March 2012. Id. at *1. Riley was diagnosed with a torn medial collateral ligament in his right knee, and osteoarthritis in both knees in the months after the accident.

workers compensation

AARON ASHCRAFT PREVAILS IN COMPENSABILITY HEARING

Aaron Ashcraft recently prevailed in a compensability hearing before Judge Steven Haddock in Decatur, Alabama in Darrin Hester v. Minor Tire Company, et al.

workers compensation

ALABAMA COURT OF CIVIL APPEALS FINDS EMPLOYER NOT RESPONSIBLE FOR PERMANENT INJURY CAUSED BY PREEXISTING CONDITION

On February 27, 2015, the Alabama Court of Civil Appeals released an opinion re-affirming the principle that an employer is only liable under the Worker’s Compensation Act for treatment of the temporary injury when a work related injury aggravates a preexisting condition. Ex parte Fairhope Health & Rehab, LLC, 2015 WL 836706, at *7 (Ala. Civ. App. Feb. 27, 2015).

workers compensation

IDIOPATHIC DEFENSE

Slimford Manuf. Co. v. Martin, 417 So. 2d 199 (Ala. Civ. App. 1981).

workers compensation

JOHN C. WEBB OBTAINS A DEFENSE VERDICT IN A WORKERS’ COMPENSATION HEARING LOSS CASE

John Webb recently obtained a defense verdict on behalf of a global coal mining company in a workers’ compensation hearing loss trial.

workers compensation

EMPLOYEE’S PARTICIPATION IN A RECREATIONAL ACTIVITY THE EMPLOYER DID NOT DERIVE ANY BENEFIT FROM FOUND TO NOT BE WITHIN THE SCOPE OF HER EMPLOYMENT

On February 27, 2015, the Alabama Court of Civil Appeals entered a decision in the case of Pollock v. Girl Scouts of Southern Alabama, Inc., 24 ALW 10-6 (2130538), 2/27/15. The issue in Pollock was whether an employee’s participation in a horseback riding event organized and planned by a co-employee was within the scope of the employee’s employment. See id.

workers compensation

TOTAL VOCATIONAL DISABILITY IS NOT AN EXCEPTION FOR AWARDING BENEFITS OUTSIDE THE SCHEDULE

In Goodyear Tire & Rubber Co. v. Bush, the Alabama Civil Appeals Court held that the trial court erred in concluding that the employee was permanently and totally disabled under the Act, Ala. Code § 25-5-57(a)(4)(d), because it used the vocational disability of the employee as the basis for the compensation award without first deciding that an exception to the schedule applied.” 2014 Ala. Civ. App. LEXIS 153 (Ala. Civ. App. Aug. 22, 2014).

workers compensation

THE EFFECT OF PREEXISTING CONDITIONS ON MEDICAL CAUSATION

On April 4, 2014, the Alabama Court of Civil Appeals issued an opinion on the effect of an employee’s preexisting condition and its impact on the issue of medical causation. See Madison Academy, Inc. v. Hanvey, 2014 WL 1328334 (Ala. Civ. App. 2014).

workers compensation

MEDICAL CAUSATION IN THE CONTEXT OF AN ALLEGED ALTERED GAIT INJURY

In Dubose Construction v. Simmons, the Alabama Court of Civil Appeals revisited an employee’s burden for obtaining compensation outside the schedule based on a seemingly routine knee injury. 2013 Ala. Civ. App. LEXIS 239 (Ala. Civ. App. Dec. 20, 2013). The employee, James Simmons, injured his knee in a workplace fall. Medical examinations revealed a torn medial meniscus which was arthroscopically repaired.

workers compensation

COURT AFFIRMS AWARD OF SUBROGATION OF UM UIM BENEFITS BUT DOES NOT CHANGE LONGSTANDING RULE

In Roblero v. Cox Pool of the Southeast, 2013 Ala. Civ. App. LEXIS 137 (Ala. Civ. App. June 21, 2013) the Alabama Court of Civil Appeals affirmed a trial court’s finding that an employer was entitled to subrogation of UIM/UM benefits paid to an injured worker.

workers compensation

WHETHER THE UNSAFE USE OF A SAFETY DEVICE IS SUFFICIENT TO SUPPORT A CO EMPLOYEE LIABILITY CLAIM BASED ON THE ALLEGED REMOVAL OF A SAFETY DEVICE

In Bates v. Riley, the Alabama Court of Civil Appeals examined whether the unsafe use of a safety device was sufficient to support a co-employee liability claim based on the alleged willful or intentional removal of a safety device. 2013 Ala. Civ. App. LEXIS 32 (Ala. Civ. App. Feb. 1, 2013).

workers compensation

CONSIDERATIONS IN DETERMINING WHETHER OR NOT A PLAINTIFF IS PERMANENT AND TOTALLY DISABLED

Any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment, shall constitute prima facie evidence of permanent total disability but shall not constitute the sole basis on which an award of permanent total disability may be based.

workers compensation

LIMITATIONS ON EXCEPTIONS TO THE COMING AND GOING RULE

In McDuffie v. Medical Center Enterprise, the Alabama Court of Civil Appeals recently declined an opportunity to expand an exception to the “coming and going” rule when it examined the case of a nursing student injured on hospital grounds after her regular shift was over. 2012 Ala. Civ. App. LEXIS 249 (Ala. Civ. App. Sept. 14, 2012).

workers compensation

RECENT CASE CLARIFIES THE WORKERS’ COMPENSATION “DEBILITATING PAIN” EXCEPTION

Gold Kist v. Smith, 2012 Ala. Civ. App. LEXIS 220, clarifying the “debilitating pain” exception. In Gold Kist, the plaintiff suffered a severe ankle injury which arose in the line and scope of her employment. Following surgery and a period of recovery, the plaintiff returned to work and continued to work for more than one year.

workers compensation

STRATEGY FOR DEFENDING A CLAIM FOR UNSCHEDULED BENEFITS UNDER THE GRABEN PAIN EXCEPTION

Ala. Code § 25-57(a)(3) and injuries compensated outside of the schedule. Typically, compensation for scheduled injuries is less than compensation awarded outside of the schedule.

workers compensation

EXPANDING THE “TRAVELING EMPLOYEE” EXCEPTION TO THE COMING AND GOING RULE

In McDaniel v. Helmerich & Payne Int’l Drilling Co., the Alabama Court of Civil Appeals, in a case of first impression, vastly expanded the category of employees meeting the definition of “traveling employees” for the purposes of Alabama’s workers’ compensation law.

workers compensation

HANDLING TORNADO BASED WORKER’S COMPENSATION CLAIM

On April 27, 2011, a series of destructive tornados tore through the state of Alabama, killing hundreds and injuring hundreds more. Although legal concerns are not at the top of anyone’s mind in this time of tragedy, workers’ compensation adjusters and attorneys might soon be faced with workers’ compensation claims for injuries or deaths which occurred during the tornado outbreak.

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