DO BOTH POLICIES APPLY? Last week we discussed step one, which is to initially determine whether both policies would apply to the same loss. Today we are going to discuss step two, which is how to split the costs between the two policies. Courts consider the following: 1. the nature of the claim; 2. the relation of the insured to the insurers; 3. the particulars of each policy; and 4. any other equitable contribution. American Family Mut. Ins. [...]
A Massachusetts trial court recently ruled that a Construction Manager at Risk could not sue the owner for design defects even thought the owner provided the plans and specifications for the project. This ruling is a substantial shift from the Spearin doctrine which has historically made the party providing the plans responsible for any shortcomings or problems with the plans. In the case of Coghlin Electrical Contractors, Inc. v. Gilbane [...]
Like their Iowa counterparts, landowners and beginner farmers in Nebraska can take advantage of tax credits and loan programs implemented to assist the next generation of farmers. Nebraska Beginning Farmer Tax Credit The Nebraska Beginning Farmer Tax Credit Act provides an incentive for a farmer who is retiring or who wants to cut back on his or her operation to rent to a beginning farmer. A qualified beginning farmer or rancher [...]
A hospital in Connecticut recently reported a drastic drop in both claims made and settlements paid after a safety training regime aided by the hospital’s med-mal insurer. In 2004, the hospital joined with its med-mal insurer in an effort to increase patient safety and in turn decrease claims made and amounts paid. Here’s what they did: - standardized care, - implemented new teamwork protocols, and - enhanced oversight of clinical [...]
Fellow blogger Chris Cheatham posted an interesting article on his The Electronic Claim blog about ways a contractor may profit from the labor shortage. The blog is based on an article, 5 Ways to Profit from the 2014 Labor Shortage, published by McGraw Hill-Dodge. An important takeaway deals with how subcontractors are responding to the greater need for their services and whether they are profiting from this change in the [...]
According to the U.S. Dept. of Agriculture Census of Agriculture, the average age of today's farmer has increased to 58 years of age. Concerns are increasing over who will step up as the next farming generation considering dramatic increases in land prices and the high cost of equipment and inputs make it difficult for new farmers to get a foothold. Recognizing the problem, state and federal governments have introduced incentives to [...]
DO BOTH POLICIES APPLY? We cannot definitively answer this questions, dear Readers, without analyzing both policies in order to determine whether the polices insure: 1. The same entities; 2. The same interest in the same property; and 3. The same risk. See, American Family Mut. Ins. v. Regent Ins. Co., 288 Neb. 25, 41 (Neb. S. Ct. May 2, 2014). It is not necessary that the policies provide identical coverage in all [...]
A recent report by CNN indicates that John Hopkins has agreed to a whooping $190 million settlement in a case involving a gynecologist who was alleged to have secretly photographed and recorded his more than 7000 patients. Dr. Nikita Levy was fired in February 2013 after the Baltimore based health care system discovered he had been using a pen-like camera around his neck to snap photographs of patients. A diligent co-worker suspected [...]
We have all seen this situation before. The bids come in, the lowest is taken, and lo and behold, the subcontractor finds out that it cannot perform for the amount listed in the bid. When this happens, the subcontractor may take the position that the general contractor should have told the subcontractor that their bid was too low. The case of Fidelity And Deposit Co of Maryland v Casey Industrial [...]
Partner Dave Schmitt published an article in the Creighton Law Review: David J. Schmitt, The Computer Fraud And Abuse Act Should Not Apply To The Misuse Of Information Accessed With Permission, 47 Creighton L. Rev. 423 (2014). The article analyzes the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which has been the subject of conflicting and contrary judicial interpretations as to whether it is limited to violations of [...]
What is the burden of proof? In most jurisdictions that allow such a claim, the case resounds in tort. Thus, the standard burden of proof applies: duty, breach of duty, causation and damages. Today we will focus on the third element - causation. How is this proven? Courts differ in specifics, but all agree that an excess carrier must show that the claimed damages are proximately caused by the primary's bad [...]
Partner Denise Destache presented at the Nurse Leader Immersion Weekend sponsored by the University of Nebraska Medical Center at its Kearney campus on June 28th. The presentation was on legal issues in nursing and included lecture, case evaluations, and mock depositions. The seminar was attended by nurse administrators, nurse educators, and nurses enrolled in advanced practice nursing programs.
A recent report by the Rand Corporation, sponsored by the U.S. Department of Health and Human Services, concludes that the cost of medical malpractice insurance may actually increase under the Affordable Care Act a/k/a Obamacare. The increase could be up to 5% in some areas, although this is an early and inexact estimate. According to David Auerbach, the study's lead author and a policy researcher at RAND, “the Affordable Care Act [...]
We are digging deep again today, dear Readers, into insurance coverage issues about which I think you ought to know. How else am I going to train you to become scintillating cocktail party guests? Everyone will be clamoring for your thoughts on this subject. Trust me. 2 WAYS TO GET CGL INSURANCE COVERAGE - WITHOUT BUYING A POLICY 1. As an additional insured by endorsement. Under the standard ISO endorsement form, a [...]
I had the pleasure of presenting to the Omaha chapter of the National Association of the Remodeling Industry (NARI) last week on steps they could take to ensure that they get paid for their work. The majority of our discussion dealt with construction contracts and clauses that should be included in their construction contracts. The clauses that I recommended included: Identification of contract document Detailed scope of work Dealing with [...]
It's time for my somewhat regular update regarding the latest state to address the constitutionality of caps on damages in medical malpractice lawsuits. Previously, I have discussed Kansas and Missouri and their judicial treatment of such caps. In its recent decision, the Florida Supreme Court threw out the state's statutory cap on non-economic damages in medical malpractice cases as violating the Equal Protection Clause of Florida's Constitution. In a blistering [...]
ARE YOU COVERED FOR LOSSES WHEN YOU RENT A CAR? OR SHOULD YOU BUY SEPARATE RENTAL INSURANCE? My son and I went fly fishing with family in Montana last week. We rented a car from Budget. I insisted that my brother in law be added to the car rental agreement as an authorized driver. I would not let anyone else drive the car for the week - which meant that either [...]
