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April 10, 2006
Publication
It’s A New Type of Jungle Out There: An Overview of Bovine - Cozen O'Connor Whitepaper - In 1906, Upton Sinclair’s novel, The Jungle, exposed the poor sanitation practices of the meatpacking industry and spurred revolutionary statutory protection for American meat consumers and industry workers. Today, exactly a century later, with Americans and others ingesting meat, which might be more properly labeled a biohazard,1 the ultimate conclusion of Sinclair’s novel takes on a new meaning. In short, it’s a new type of jungle out there.
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April 03, 2006
Publication
Michael B. de Leeuw co-authored this article for the New York Law Journal on why it is necessary to clarify ambiguous terms in commercial agreements.
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April 01, 2006
Publication - Insurance Coverage - Insurance
The Flaws of Arbitration - Risk & Insurance - Today’s subject is arbitration and why you should avoid it. Blasphemy you say? Read on to find out why court litigation before a judge sitting without a jury may be preferable. Recently, I found myself before an appellate court trying to vacate an arbitration award. When the appellate panel realized that my arbitration appeal was the only thing separating them from their next meal, they dismissed me with the rubric of the finality of arbitration awards. Justice? Perhaps not.
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March 14, 2006
Publication - Subrogation & Recovery - Insurance
Another Look at Malicious Mischief: Criminal Restitution in the Fifty States - Subrogation and Recovery Alert! - Oftentimes victim is defined broadly enough to include a subrogating carrier. To assist you in determining which states allow restitution in favor of a subrogating carrier and how much restitution may be recovered, see this Fifty State Summary on Criminal Restitution and Recovery by Insurance Companies . This article provides a brief summary of the law, the issues surrounding restitution orders and how best to proceed with your claim for restitution.
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March 01, 2006
Publication
Keeping It ‘All In The Family’ - Risk & Insurance - The West Virginia mine tragedies reminded me of a nasty personal injury case in which I recently served as an outside consultant for a Fortune 1000 company. The company, understandably, wanted a pair of eyes and ears to look after its uninsured interests. Names have been changed and facts simplified to protect those involved). As you will see, what was thought to be clever business planning turned out to be financially painful for the company and its insurer.
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March 01, 2006
Publication - Insurance Coverage
What is a Pollutant in the Context of the Application of the Absolute and Total Pollution Exclusion? - Cozen & O'Connor Whitepaper - The scope of this paper is to address those situations where the court’s analysis of these
exclusions turned on the issue of whether the substance at issue is a “pollutant” or otherwise
qualified as pollution within the operative exclusion. Particular attention will be paid to the heavily litigated areas of carbon monoxide, lead paint, asbestos, biological contaminates,
chemical fumes, and welding rod fumes.
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February 23, 2006
Publication - Business, Health Care & Life Sciences - Health Care & Life Sciences
HIGHLIGHTS OF THE DEFICIT REDUCTION ACT OF 2005 - Health Law E-lert! -
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January 27, 2006
Publication - Subrogation & Recovery - Insurance
A New Lease on Life: Subrogating Against Your Insured's Tenant - Subrogation and Recovery Alert! - 6 pgs total. A considerable hurdle is the Implied-Coinsured Doctrine, a legal fiction created to bar subrogation claims against tenants as a matter of public policy. However, depending on the jurisdiction and the underlying lease agreement, this hurdle may be overcome. A detailed analysis of the law of the relevant jurisdiction and the underlying lease agreement must be performed in order to determine if the insurance carrier of a landlord may recover against the tenant.
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January 16, 2006
Publication - Real Estate Litigation
To Win the Zoning War, Pick Your Battles - Shopping Center World -
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January 16, 2006
Publication - Subrogation & Recovery
Discovery of Communications with the Expert Witness - Subrogation and Recovery - Articles and Papers - 8 pgs total. Topics: The Work Product Doctrine And Federal Rule of Civil Procedure 26; The Work Product Doctrine – Division Among The Federal Courts As To Whether, And To What Degree; The Work Product Privilege Applies To Discovery Material Presented To An Expert Witness Who Will Testify At Trial,; Discovery Of Oral Communications Between The Attorney And Expert Witness; Discovery Of The Expert’s Draft Reports.
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January 13, 2006
Publication - Subrogation & Recovery
Subrogation and Recovery - Articles and Papers - Regional Updates in Subrogation Law & Litigation: -
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January 13, 2006
Publication - Subrogation & Recovery
The “Daubertization” of Products Liability Experts Under Federal Rule of Evidence 702 - Subrogation and Recovery - Articles and Papers - 18 pgs total. The main reason why expert testimony is excluded in products liability cases is its failure to meet the “reliability” test. Recent Cases: American Family Insurance Group v. JVC Americas, Chester Valley Coach Works v. Fisher-Price, Garlinger v. Hardee’s Foodsystems, Knotts v. Black & Decker, Milanowicz v. Raymond Corp, Travelers Casualty and Property Corp. v. G.E., The Exceptions to the Trend: Eclipse Electronics v. Chubb, Fillebrown v. Steelcase, FRYE – THE ALTERNATIVE
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January 13, 2006
Publication - Real Estate Litigation
Cell Towers Win; Local Zoning Code Out - Tri State Real Estate Journal -
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January 13, 2006
Publication - Subrogation & Recovery
Legal Theories for Subrogation Actions in Pleasure Boats and Yacht Losses - Ocean Marine and Inland Marine - Subrogation and Recovery - Articles and Papers - 8 pgs total. This paper will discuss, in summary fashion, the key considerations in subrogation claims that arise from private boat and yacht losses. Available theories include:(1)negligence on the part of the individual or entity responsible for the loss;(2)breach of contractual undertakings including warranties; and(3)(because boats and their component parts are essentially products) theories of products liability.
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January 13, 2006
Publication - Subrogation & Recovery
From the Lawyer's Perspective: The Role of a Fire Protection Engineer - Subrogation and Recovery - Articles and Papers - Forensic Consultants & Loss Site Investigations - - 3 pgs total. Often, experts consider themselves only as investigators and disregard or minimize the importance of being an advocate for their client during later litigation. The overall task of the fire protection engineering forensic project should be to show that a different design, construction, technique, product, or material would have made a difference in the outcome of the event.
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January 13, 2006
Publication - Subrogation & Recovery
Disclosure Requirements Under Rule 26 of the Federal Rules of Civil Procedure - Subrogation and Recovery - Articles and Papers Forensic Consultants & Loss Site Investigations - 9 pgs total; outline. Topics: Rule 26(f) - Mandatory Discovery Conference; Rule 26(a)(1); Privilege Log 26(b)(5).; Protective Order 26(c)(A).; Selected District Courts’ Implementation of the Rule 26 Amendments.; Rule 37 Failure to Make Disclosure or Cooperate in Discovery; Sanctions.; etc
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January 13, 2006
Publication - Subrogation & Recovery
Subrogation and Recovery - Articles and Papers - Regional Updates in Subrogation Law & Litigation: Sovereign Immunity in the Midwest -
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January 13, 2006
Publication - Subrogation & Recovery
How to Select and Properly Use Experts - Subrogation and Recovery - Articles and Papers - Forensic Consultants & Loss Site Investigations - - 15 pgs total. Outline headings: What Kind Of Expert Might You Need; What Is The Purpose Of The Expert; What Should Be The General Criteria For The Retention Of A Particular Expert -- The Qualities Of A Good Expert; What Expert Should Be Selected -- The Specific Criteria -- The Qualifications Of A Good Expert; Who Should Select The Expert; Cost.
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January 13, 2006
Publication - Subrogation & Recovery
Governmental Immunity - Subrogation and Recovery Theories of Liability - Subrogation and Recovery - Articles and Papers - 4 pgs total. Governmental immunity describes the various doctrines or statutes that provide federal, state, or local governments immunity from tort-based claims. We present a sampling of cases supporting the view that a special duty must be established in order to hold a governmental entity liable. Claims against governments are often subject to time sensitive notice requirements. Some jurisdictions have enacted liability caps that limit the amt. of damages that can be recovered.
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January 13, 2006
Publication - Subrogation & Recovery
Circumventing Waivers of Subrogation, Exculpatory Clauses and Other Limitations - Subrogation and Recovery - Articles and Papers - 5 pgs total. Subrogation rights may be lost in one of two ways: the insurance company, by conduct or agreement, can waive its subrogation rights; or exculpatory or waiver clauses entered into by an insured can relieve the tortfeasor from liability. The waiver may also be challenged as an exculpatory clause that must be strictly construed; and avoided where there is a showing of gross negligence or willful and wanton misconduct.
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