NY Alert
Tired of waiting for the judge to rule? Now you have to write and ask them to speed it up a bit. Effective January 17, 2006, an attorney with a pending motion must write to alert the judge when 60 days have passed without a ruling.
Section 202.8 of the Uniform Civil Rules for the Supreme and County Courts was amended to add a subsection (h) which reads:
(h) 60-Day Rule. If 60 days have elapsed after a motion has been finally submitted or oral argument held, whichever was later, and no decision has been issued by the court, counsel for the movant shall send the court a letter alerting it to this fact with copies to all parties to the motion.
The Litigation Hold Letter
Do not be mislead by the creature's title. The dissemination of a "litigation hold letter" will likely be necessary long before plaintiff's Complaint is served. "The obligation to preserve evidence arises when the party has notice that evidence is relevant to litigation or when the party should have known that evidence may be relevant to future litigation." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). Be aware of how a court's 20/20 vision (cast in hindsight, of course) will regard your efforts. The quality and quantity of the evidence at play will have a significant impact on the analysis. Moreover, a court will also consider the level of knowledge held by significant players and the timing of that knowledge. The analysis resolves differently if lower level employees were aware that a co-worker was considering bringing a discrimination suit than if that co-worker had shared his plans with the Director of Human Resources. The litigation hold letter should be tailored to each specific case. Do not use a form. The letter should come from the highest levels of the company and start off with a declaration that the company takes its preservation obligations very seriously. Be aware that you limit the field of recipients at your peril. In any instance, the letter should of course go to the people involved in the circumstances giving rise to the potential suit. It should also go to IT or any other department responsible for the maintenance of back-up tapes. The text of the letter should be relatively short, as well as simple and straightforward. You do not need to provide detailed explanations of the lawsuit (if one is already pending). Tell the recipients what should be preserved (be sure to define your terms broadly) and suggest where it might be located. Be clear and direct with regard to what you expect the letter's recipients to do. (This may also include setting up a "help" line for employees with questions.) Tell employees that the company risks serious sanctions if the employees (and thus, the company) does not comply with obligations to preserve. Once you send the letter out, follow up with the employees who have received it to see whether they have questions.
Loss of Consortium Derivative of Bodily Injury
The Fontaines commenced a medical malpractice action claiming that the actions of a certain doctor had led to Mr. Fontaine's bodily injury. Mrs. Fontaine also brought a claim for loss of consortium. The Connecticut Insurance Guaranty Association (which had assumed responsibility for payments owed by PHICO after it was declared insolvent) filed a declaratory judgment action seeking a determination that it had no obligation to pay the loss of consortium claim as the policy covered only claims for "bodily injury". Connecticut Ins. Guaranty Assoc. v. Fontaine, 900 A.2d 18 (Conn. 2006). The Fontaines argued that their loss of consortium claim was derivative of the bodily injury claim and should therefore be covered. The court reviewed the policy and determined that, as either interpretation was reasonable from the policy's language, the policy was ambiguous. The court found for the Fontaines for two reasons. First, applying the doctrine of contra proferentem, the court construed ambiguous language in favor of coverage. Second, the court agreed with the Fontaines that but for the bodily injury claim, there would be no loss of consortium claim.
Insureds Not Entitled to Counsel Fees in Indemnity Dispute
The Massachusetts Supreme Judicial Court recently applied the American Rule concerning attorneys' fees to a dispute between an insured and an insurer regarding a duty to indemnify. In Wilkinson v. Citation Ins. Co., 447 Mass 663 (2006) a fire broke out in the insured's garage. Among the items destroyed by the fire were tools that the Wilkinsons owned but which were used by their son, Todd, to maintain the car he raced as a hobby. Todd earned money racing the car, but his costs exceed earnings. Citation denied coverage for loss of over $3000, citing a provision in the policy limiting coverage to that amount for property used in any business purpose. The policy defined "business" as a 'trade, profession or occupation." Id. at 665. After making written demand on Citation, the Wilkinsons brought suit on the coverage claim and won at the summary judgment stage. That judgment in hand, the Wilkinsons then filed an application for attorneys fees, which a different Superior Court judge granted. The matter was appealed. The SJC upheld the coverage ruling and reversed the ruling concerning attorneys' fees. Massachusetts courts have previously held that an insured is entitled to attorneys' fees for winning a duty to defend case against an insurer. Although the Wilkinsons argued that ruling should be expanded to a duty to indemnify matter, the SJC disagreed, stating: The duty to defend arises in situations involving threatened or actual litigation by a third party, a context in which time is of the essence, and in which cost and complexity can compound each passing day. By the time the insurer's duty to defend has been established through litigation, the insured may already have been denied much of the benefit and protection of that defense, depriving the insured of the benefit of bargain and requiring an alternative compensatory measure like attorneys' fees. Such is not the case with the duty to indemnify. That duty arises only after the insured's liability has been established and is between the insurer and the insured. The element of time is less critical. Id. at 671.
The court concluded, "[w]hether the American Rule is best or not, it applies across all types of disputes except when, for example, a specific statute (or contract provision) provides otherwise." Id. at 672-673.
