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News for, and by, our local legal community, curated and created by the Santa Clara County Bar. The opinions expressed in this blog are the authors' own and do not necessarily represent or reflect the views of the Santa Clara County Bar Association, its members, its employees, or its governing board.

 

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Bar Wins Dismissal of Claims by Ex-Director

Posted By Administration, Tuesday, April 12, 2016

An arbitrator on Friday dismissed wrongful-termination claims filed by Joe Dunn against the State Bar of California, its board of trustees and two individuals stemming from his November 2014 ouster.

In granting the respondents' demurrers, Judge Edward Infante of JAMS found that Dunn had failed to state actionable claims in allegations ranging from whistleblower retaliation to breach of fiduciary duties.

"We believe this order dismissing every single claim supports what the bar has been saying all along," said Moez Kaba, a partner at Hueston Hennigan, which is representing the bar and former president Craig Holden. "The bar has done nothing improper with respect to Mr. Dunn."

But Infante's order left the door open for the litigation to continue by granting Dunn leave to amend a handful of claims and try again, which Dunn's lawyer said he intends to do.

Read the whole story at The Recorder

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Insurance Law News: Who’s on First Party or Third Party? It Makes a Difference

Posted By Dean A. Pappas, Tuesday, April 12, 2016

This blog post has been cross posted from the Insurance Section Blog.

 

By Dean A. Pappas

Ropers, Majeski, Kohn & Bentley

 

In Haering v. Topa Insurance Co. (2016) 244 Cal.App.4th 725, Plaintiff was insured under a primary commercial auto insurance policy issued by State National Insurance Company issued to his employer that provided uninsured motorist/underinsured motorist (UM/UIM) coverage.  The policy limits for the UM/UIM coverage was $1 million.  The employer was also an insured under an excess liability policy issued by Topa Insurance Company.  The State National policy was scheduled in the Topa policy as the underlying primary policy.  The limits of liability in the excess policy were $1 million for each occurrence and $1 million in the aggregate.

 

Plaintiff was injured in a motor vehicle accident caused by a negligent driver who was an insured under a policy with a $25,000 liability limit.  Plaintiff settled his claim against the negligent driver by accepting the $25,000 limit under the driver’s policy. He then submitted a claim to State National and eventually recovered the policy limit under the $1 million UM/UIM coverage.  Plaintiff next submitted a claim to Topa for $1 million in excess coverage asserting that the excess policy incorporated the underlying UM/UIM coverage since the Topa policy “followed form” to the State National policy. Topa denied any obligation.  Plaintiff sued.  The trial court agreed with Topa and plaintiff appealed.

 

The issue on appeal was whether an excess liability insurance policy that “follows form” to an underlying primary policy that provides UM/UIM coverage must also provide such coverage after the underlying policy limit has been exhausted.  The Court of Appeal agreed that the Topa policy did not include any UM/UIM coverage. 

 

The key to the Court of Appeal’s analysis was the distinction between “first party” insurance coverage and “third party” insurance coverage.  First party insurance coverage applies to loss or damage sustained directly by the insured.  Third party insurance coverage, in contrast, provides coverage for liability of the insured to a “third party.”  UM and UIM coverages are “first party” coverages; they create an obligation to compensate an insured directly for their loss or damage.  The most common type of first party insurance coverage is property insurance.  Third party insurance coverage is commonly called liability coverage. 

 

The Topa policy was an excess liability insurance policy; it applied to damages in excess of the underlying limit of liability “for which the Insured is liable.”  Plaintiff, however, was seeking payment due his own losses.  Plaintiff’s claim for “first party” UM/UIM benefits did not come within the scope of the “third party” liability insurance coverage provided by the Topa policy.  Judgment for Topa, therefore, was affirmed.

 

Caveat:  Different wording of a policy providing excess coverage may expand the excess coverage.  The Court of Appeal noted that some excess insurance policies include a “broad as primary” provision that enlarges the scope of coverage to include a loss that is within the scope of the underlying primary policy, even though that loss otherwise would have been excluded under the terms of the excess policy.  (Id. at 735.)

Tags:  Insurance Section 

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Chief justice says plans to de-unify bar should not be rushed

Posted By Administration, Wednesday, April 6, 2016

Chief Justice of California Tani G. Cantil-Sakauye has cautioned that efforts to split the State Bar into a regulatory board and a separate trade association for attorneys should not be rushed. She also expressed a desire for the state Supreme Court to have a say about any plan calling for de-unification of the bar, which is an administrative arm of the court.

Read the whole story at Daily Journal (subscription required)

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Justice Department Wins Appeals Ruling on Deferred Prosecution Agreements

Posted By Administration, Wednesday, April 6, 2016

Federal judges have no authority to “second-guess” the discretion of federal prosecutors to cut deals with companies under criminal investigation, a federal appeals court ruled on Tuesday.

Read the whole story at The Wall Street Journal

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F.B.I. Lawyer Won’t Say if Data From Unlocked iPhone Is Useful

Posted By Administration, Wednesday, April 6, 2016

The epic fight between the F.B.I. and Apple over a locked iPhone is now over, but a central question in the case has remained unanswered: What secrets did the phone, used by one of the attackers in the San Bernardino, Calif., rampage, actually hold?

The question has persisted with all the anticipation of Geraldo Rivera’s ill-fated unlocking of Al Capone’s secret vault on live television 30 years ago — which produced only a few empty liquor bottles and a stop sign.

On Tuesday, the F.B.I.’s top lawyer shed a bit more light on the question, a week after the Justice Department announced that it hadgotten into the iPhone without Apple’s help. The lawyer, James A. Baker, the bureau’s general counsel, told an audience of privacy professionals in Washington that the F.B.I. had extracted data and was putting it to use.

Read the whole story at NY Times

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Supreme Court Is Working Hard to Avoid Deadlocks, Kagan Says

Posted By Administration, Wednesday, April 6, 2016

The Supreme Court, facing the prospect of an extended stretch with an eight-member bench, is “working really hard” to reach consensus and avoid deadlocks, Justice Elena Kagan said on Monday.

There are almost 50 cases left to decide before the justices leave for their summer break at the end of June. Justice Kagan said she and her colleagues were committed to issuing decisions in as many of those cases as possible.

“All of us are working hard to reach agreement,” she told an audience atNew York University’s law school. That was true when the court had nine members, she said, but “we’re especially concerned about that now.”

Read the whole story at NY Times

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Documentary: Scott Peterson was a victim, deserves new trial

Posted By Administration, Wednesday, April 6, 2016

Modesto’s Scott Peterson was convicted by police with tunnel vision, complicit media and a bloodthirsty public, claims an unfinished full-length documentary shown for the first time Saturday.

“There wasn’t any evidence in this case,” attorney Mark Geragos, interviewed at length for the movie, told a large crowd at the American Documentary Film Festival during a question-and-answer session just after the screening of “Trial by Fury: The People v. Scott Peterson.”

“It was a “complete media lynching,” Geragos said.

Geragos represented Peterson, now 43, in the blockbuster 2004 trial that ended with the Modesto man sent to death row for the murders of his wife, Laci, and their unborn son.

Read the whole story at SacBee

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State Bar Could Split in Two by 2019

Posted By Administration, Wednesday, April 6, 2016

A State Bar leader said Monday that he and others will ask the chief justice and legislators to split the lawyer oversight agency into a board focused on admissions and discipline and a nonprofit that would effectively serve as a trade association for attorneys.

Dennis Mangers, a nonlawyer member of the bar's board of trustees, told a bar task force meeting in San Francisco that he was "no longer interested in tinkering around the edges" of what he called "a grossly dysfunctional organization."

"There is simply no justification for this profession to continue governing itself," Mangers said.

Mangers' proposal would seek legislation directing the bar to divide its funding sources, assets, staff and programs between the trade association, which would continue carrying the state bar moniker, and a new, 13-member discipline-focused agency known as the California Legal Services Regulatory Board. The divorce would be final in 2019.

Read the whole story at The Recorder

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San Diego County district attorney launches team to review possible wrongful convictions

Posted By Administration, Wednesday, April 6, 2016

Uriah Courtney, convicted of a rape he didn't commit, walked out of prison an innocent man after eight years behind bars.

Twenty-one years after a jury found Kenneth Marsh guilty of beating to death his 2-year-old son, he was told the case against him was dismissed.

The men are two of the most notable examples in recent history of wrongful convictions in San Diego County, and Dist. Atty. Bonnie Dumanis believes there could be more.

That's why, she says, she is formalizing the office's efforts to review troublesome convictions, creating a team of two full-time prosecutors to investigate claims of innocence where verifiable, credible evidence exists or where there is new technology or evidence to run DNA tests.

Read the whole story at LA Times

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California Supreme Court Rules on When Employers Must Offer Seats to Workers

Posted By Administration, Wednesday, April 6, 2016

California’s highest court has made it easier for retail and banking employees to bring class-action claims against their employers for not providing them seats while they work, according to a plaintiffs’ lawyer spearheading the litigation.

Major retailers and banks are battling lawsuits in state and federal courts in California over their obligations to provide cashiers, bank tellers and other types of workers with “suitable seats” under a California labor law. Courts have split on the merit of such complaints and whether the lawsuits can proceed as class actions.

Read the whole story at Wall Street Journal

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more Calendar

8/7/2018
Barristers' Annual Judges Luncheon

8/14/2018
Knowing When To Accept A Case and When It's Time To Say Goodbye.

8/23/2018
Disability and ERISA Issue Spotting for Labor Law Attorneys

Recent Recognitions
Hon. Edward J. Davila2017 Diversity of the Year
Susana Inda2018 Barrister of the Year

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