On January 15, 2010, the California Court of Appeal held that a design professional owed a duty to defend its developer/client pursuant to a contract of indemnity even though the jury found that the design professional had not been negligent in performing its services. In UDC-Universal Development, L.P. v. CH2M Hill, a residential condominium homeowners association sued UDC, the developer of the project, and UDC cross-complained against its design professional, CH2M Hill, seeking to enforce indemnity provisions in their contracts. Five days before the end of the trial on UDC's indemnity claim, the Supreme Court issued its decision in Crawford v. Weather Shield, which held that a contractual indemnitor incurs a duty to defend the indemnitee as soon as the indemnitee tenders its defense to a claim asserting that the indemnitee was at fault. At the conclusion of the trial, the jury returned a verdict finding CH2M Hill was not negligent and that it did not breach its contract with UDC. Regardless, the trial court found that, under Crawford, the indemnity provision in the contract obligated CH2M Hill to pay UDC’s defense costs.
Construction contracts between general contractors and subcontractors are often modified by change orders related to scope of work revisions during construction. If litigation ensues, the subcontractor may claim that the general contractor violated California’s various prompt-payment statutes. The California Court of Appeal recently provided some new insight in this area. In Martin Brothers Construction v. Thompson Pacific Construction, the Court of Appeal held that a general contractor who had a good faith dispute with a subcontractor could withhold 150 percent of the amount due without violating the prompt-payment statute requirements of California's Public Contract Code. The Court also ruled that parties to a construction contract could contractually "opt out" of the timing requirements for progress payments contained in California's Business and Professions Code.
Connecticut v. American Electric Power Company, Inc. ((2nd Cir. (N.Y.)) 2009 WL 2996729)
After four years and extensive briefing, the United States Court of Appeals for the Second Circuit finally issued its watershed opinion concerning the judiciary’s role in considering climate change issues. The Court emphatically reversed the district court, vacated the judgment and remanded the matter for additional proceedings. Is so doing, the Court of Appeals further cracked the door for potential judicial solutions to global climate change.
"Proper Use of Contingent Expert Contracts"
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On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar on the subject of Climate Change Litigation in the United States: Theories of Liability and Insurance Issues. The level of interest expressed about that subject at that time combined with ongoing developments relating to climate change litigation suggested the desirability of periodically updating that presentation. This third update complements the initial presentation along with our June and December 2008 updates.
This article presents an overview of the potential areas of legal liability involving the sales force, and a framework for training sales representatives on legal issues, both to prevent lawsuits and to aid the company in successfully defending itself and its products in pending litigation.
Information regarding the Terracon Consultants Western, Inc. v. Mandalay Bay Resort Group decision.
On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar on the subject of Climate Change Litigation in the US: Theories of Liability and Insurance Issues. The level of interest expressed about that subject at the time combined with ongoing developments relating to climate change litigation suggested the desirability of periodically updating that presentation. This is another in that ongoing series of updates.
Article written for the College of Law Practice Management journal following the presentation given by George Brandon on Social Networking at the COLPM 2008 Annual Conference in Chicago.
Published in the September 2008 issue of Construction Executive
On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar at the Old Library, Lloyds Building in London on the subject of Climate Change Litigation in the US: Theories of Liability and Insurance Issues. The level of interest about this subject, as reflected by the attendance at the seminar, the number of inquiries following the seminar and the response of other insurers with whom we have shared our paper, combined with the rapid pace of new developments relating to climate change litigation in the short period since that seminar was presented, suggests the desirability of periodically updating that presentation. The purpose of this brief update is to do just that.
Article for American Health Lawyers Association Publication, June 2008
"Effect of Word Processing on Ethical Obligations When the Relationship Ends"
Technical problems can cause difficulty when attempting to comply with ethical rules regarding retainer of client files.
"Attorneys Investigating Potential Claims Should Word Their Advertisements With Care"
Article written for MPP's London seminar, Climate Change Litigation in the US: Theories of Liability and Insurance Issues.
"The Burden Of Full Disclosure Regarding Transactions With Clients May Be Too High To Satisfy"
"California Supreme Court Imposes Duty on Attorneys To Refrain From Using Inadvertently Received Privileged Information"
What should you do when an opposing attorney inadvertently provides you with a privileged document?
"Continuous Representation Tolling Provisions Do Not Apply to Former Law Firms"
Appeared in the publication "Rx for the Defense" - the newsletter for the DRI.
What is metadata? Although the document on your computer screen looks like a two-dimensional piece of paper, it is really akin to a three-dimensional folder. The current version on the screen is the top document in the folder. But behind the screen is the rest of the folder, including all the draft versions, and it is stored on your computer. So, you did not just e-mail one document; you e-mailed an entire folder. You provided your opponent with a great deal of information: prior versions, edits, the identity of authors and editors, dates of alterations, the time expended on editing and the electronic notes that your client attached. See, e.g., Hricik and Jueneman, “The Transmission and Receipt of Invisible Confidential Information, 15 No. 1 Prof. Law 18 (2004).