NEWS

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.

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. 

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.

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

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. 

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. 

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. 

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.

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.

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

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.

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.

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. 

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.

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.

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.

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

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. 

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.

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.

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

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.

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

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.

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

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.

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

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

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.

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.

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.

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.

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.

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. 

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.

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

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.

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.

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

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

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

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

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.

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. 

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

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. 

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.

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.

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

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.

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.

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.

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

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.

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.

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”).

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.

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).

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. 

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.

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.  

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.

     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

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. 

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).

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.

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.

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.

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”)...

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.

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.

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.

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.”

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.   

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.

 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.  

  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.

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.  

 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.  

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.

 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.  

    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.   

 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.  

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.

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.   

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. 

  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.

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. 

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.

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.

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.

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.

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.

     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.

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.  

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.

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.

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.  

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.  

 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.

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.

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.

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.

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

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).

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

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.

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).

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).

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.

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.

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).

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).