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Minnesota Court of Appeals
Type of Case: Insurance Coverage
Practice Area(s): Appellate
Office(s): Minneapolis
Date: December 27, 2016
Client sued attorney and law firm, alleging that they committed legal malpractice in representing both her and her husband in estate planning matters after she filed for, and then withdrew the petition for, divorce. Appellant alleged that lawyers breached their fiduciary duties by having her sign estate planning documents that were allegedly not in her interest and that they were negligent in allowing her to sign the estate planning documents when the plan allegedly resulted in her taking less than her “fair” share. In accordance with state statute, Appellant submitted an affidavit of expert disclosure providing detailed opinions regarding the Respondents’ duty and alleged breach thereof but stated no more than that the breach “caused [Appellant’s] injury.” The district court granted lawyers’ motion to dismiss based on recently restated Minnesota Supreme Court case law requiring that expert affidavits provide “meaningful information” summarizing the expert’s opinion on how the defendant’s actions were the proximate cause of a plaintiff’s alleged injuries, and stating that a fatal flaw – such as the failure to provide detailed opinions regarding causation – rendered Appellant ineligible for the statute’s safe harbor provision. The court of appeals affirmed the dismissal, determining that district court properly applied the relevant case law when it determined that the expert affidavit’s statement of causation was not sufficient to meet the standard established by the Minnesota Supreme Court in Brown-Wilbert, Inc. v. Copeland Buhl & Co. P.L.L.P. and Guzick v. Kimball.
Practice Area(s): Construction
Office(s): Minneapolis
Date: November 01, 2016

Engineer did not breach professional duties or contract

Plaintiff is the owner and operator of a growing brewery business which, among other things, alleged that engineer had caused a $12M business income loss and more than $4M in building repair costs. Plaintiff alleged that its brewery building was severely damaged by vibrations associated with the construction of a new building which was constructed several feet away from Plaintiff’s property. Defendant engineer designed the deep foundation support structure for the new building. Plaintiff claimed that Defendant engineer breached its standard of care by (1) designing a foundation system which created excessive vibrations; (2) failing to monitor the contractor’s vibrations; (3) failing to protect Plaintiff’s building from damage during the construction efforts, and (4) failing to ensure that the contractor was using the proper means and methods when installing the deep foundation support. Under Minnesota law, an engineer’s contract defines its duties. The engineer is only responsible for performing the scope of duties defined in its contract document. Here, Defendant’s contract did not include the duty to protect Plaintiff’s building from damage, to monitor vibrations, or to determine the contractor’s means and methods. Defendant brought a motion for summary judgment seeking the dismissal of all claims because Defendant did not have the contractual obligation to perform the duties which Plaintiff alleges Defendant breached. The Court granted Defendant’s motion, dismissing it from the case.
Practice Area(s): Construction
Office(s): Minneapolis
Date: October 01, 2016

Arbitration award to defendant engineers: no professional negligence or breach of warranty

Plaintiff was an owner of a new $20M private high school. Plaintiff alleged that Defendant engineer’s negligent caused an alleged failure of the heating system in that upscale school.  Plaintiff specifically alleged that Defendant acted negligently by (1) allowing a contractor to install a boiler that did not comply with the engineer’s design specifications, or (2) specifying a boiler system that was less than what Plaintiff was required to receive under the terms of the contract. Plaintiff alleged that Defendant’s negligence caused the entire boiler and heating system to be defective, thereby causing the Plaintiff to incur a significant amount of damages to replace the entire boiler system. Defendant denied all of Plaintiff’s claims.  Defendant presented evidence at the arbitration which proved that (1) Defendants did not breach its engineering standard of care by allowing contractor to use the specific boiler system; (2) Defendant’s design specifications complied with the industry standard; and (3) Plaintiff was not damaged by the use of the boilers, which Plaintiff agreed to have installed in its building. Defendant’s case at arbitration was based on relevant documents, testimony by its engineering witnesses, and testimony from various experts. After the arbitration, the arbitrator returned a complete defense verdict of no negligence or breach of warranty.
Type of Case: Medical Malpractice
Lawyer(s): Barbara Zurek
Office(s): Minneapolis
Date: May 04, 2016
Case involved claims against 6-7 health care providers, employed between two professional practices, arising out of care provided to an 11-year old child, who presented with abdominal pain, fear of eating, and weight loss/malnutrition and chronic headaches. Meagher & Geer represented a psychologist and 2 pediatric GI specialists. A psychiatrist, 2 other pediatricians and a nurse practitioner were the other care providers involved in the case. The child was seen over the course of about 1 year by 26 providers for about 144 visits before the child was ultimately diagnosed with a germinoma brain tumor. The defendants saw the child at the beginning of the one year course of events, before her symptoms evolved.
 
The case was tried over the course of 2.5 weeks, with the jury returning a verdict less than 30 minutes after commencing deliberations. Plaintiff alleged that along with the child’s extensive work up for GI sources for her complaints of abdominal pain and weight loss, she should have had a comprehensive endocrine and/or neurology work up and/or MRI scan of her head for her chronic and longstanding headaches. The jury heard testimony about the criteria pediatric providers use when evaluating pediatric patients with headaches and what is required to indicate work up for headaches, including neurology consultation and MRI scanning and that this child did not have worrisome findings that would warrant such an evaluation. The jury further heard testimony that the length of time it took to diagnose this child’s tumor was well within the usual amount of time for these types of tumors, as they can be difficult to diagnose because of the unusual symptomatology; and that the treatment ultimately rendered (with likely cure) was largely the same treatment that would have been rendered if an earlier diagnosis had been made.
Practice Area(s): Professional Liability
Office(s): Minneapolis
Date: April 22, 2016
District court granted summary judgment, holding that Repossession Company’s recovery of debtor’s car from a locked, underground garage of an apartment building was neither a trespass nor a violation of the Fair Debt Collection Practice Collection Practices Act (FDCPA). The defendant repossession agent, retained by an auto loan lender, drove his own car closely behind a random tenant’s car into the parking garage before the automatic garage door closed behind the agent’s car. Once inside the garage, the agent located the unattended debtor’s car, opened the car door using a Slim Jim, put the car into neutral, and pushed it out of the garage to a waiting tow truck, which then towed the debtor’s car off the premises to an impound lot. The repossession was accomplished without confrontation with anyone. The debtor sued the repossession agent, alleging the agent had trespassed and breached the peace, constituting violation of the FDCPA, conversion, and trespass. The agent argued that, while a nonresident entering the apartment’s parking garage might be deemed a trespasser, the agent in this case had a legitimate business reason to enter the garage because the debtor, in its loan contract, had consented to self-help repossession. The U.S. District Court Judge, David Doty, agreed, holding that the agent’s typical practice of retrieving cars by following another car into the otherwise locked and secured communal garage was a legitimate business activity and not a breach of the peace, not a trespass, and not a violation of the FDCPA.
Nelson v. Navigator Insurance Company, et al., 2013 WL 5314361 (D. Ariz. 2013)
Type of Case: Insurance Coverage
Practice Area(s): Insurance
Office(s): Phoenix
Date: September 25, 2013

In Nelson v. Navigator Insurance Company, 2013 WL 5314361 (D.Ariz. 2013), the general liability insurer was faced with a $4.2 million judgment.  The policyholder operated a steel fabrication factory.  A chain holding up an I-beam broke, the I-beam fell on the plaintiff’s legs.  The plaintiff, a 21-year-old, suffered the amputation of his left leg.  The policyholder lost the defective chain and the plaintiff sued for spoliation of evidence.  The insurer denied coverage.

After the $4.2 million judgment, the plaintiff pursued the insurer by way of assignment.  The policyholder’s president and office manager provided the plaintiff with affidavits testifying they had reasonable expectations of coverage for the spoliation-of-evidence suit.

Meagher & Geer represented the general liability insurer in the coverage case and obtained summary judgment.  The spoliation-of-evidence suit was outside the coverage afforded by the CGL Policy and Excess Policy.  This coverage case highlighted the need for insurance coverage attorneys with decades of experience devoted to the coverage specialty. 

Meagher & Geer explained to the Court the essence and nature of the CGL Policy.  Why coverage for spoliation-of-evidence would run contrary to the fundamental structure of the CGL Policy.  Why coverage for spoliation-of-evidence is irreconcilable with the purpose of the CGL Policy.  How a principled understanding of the nature and essence of the CGL Policy precludes coverage for spoliation-of-evidence.  Meagher & Geer secured victory for its client.

Auto Club Ins. Ass'n v. Sentry Ins., 683 F.3d 889 (8th Cir. 2012)
United States Court of Appeals, Eighth Circuit
Type of Case: Insurance Coverage
Office(s): Minneapolis
Date: July 02, 2012

The Eighth Circuit agreed with the district court that an employer's commercial auto insurance policy provided only excess coverage, at most, to an employee while driving his own auto, even if the employee is involved in an accident while in the course and scope of employment.

 

The employee's personal auto insurer argued that the employee was a named insured under the employer's auto insurance policy, and the employer's auto insurer was responsible as a primary insurer. At issue was the interpretation of two provisions in the employer's auto policy: (1) a controlled-entities endorsement providing who was a named insured, and (2) an employees-as-insured endorsement.

 

 

The controlled-entities endorsement provided that the employer and listed subsidiaries were named insureds, as well as "any other divisions, subsidiaries and persons and organizations under the control of the named insured." The employee's personal auto insurer argued the employee was a named insured because he was a "person."

 

 

The Eighth Circuit concluded that the employee was not a named insured, and affirmed summary judgment in favor of the employer's auto insurer, Sentry Insurance. The court noted that the controlled-entities endorsement had to be read in light of the more specific employees-as-insured endorsement, which made employees only "insureds," not named insureds. The employees-as-insured endorsement would be meaningless if employees were named insureds under the controlled-entities endorsement. And it would be unreasonable for the employer's auto policy to provide primary coverage where the policy specifically provided only excess coverage to employees, at most, under certain conditions.

 

 

Meagher & Geer represented the employer's auto insurer, Sentry Insurance. To read the opinion, click here.
Scottsdale Indemnity Co. and National Casualty Co. v. Village of Crestwood, Nos. 11-2385, 11-2556, 11-2583
Type of Case: Insurance Coverage
Office(s): Minneapolis
Date: March 05, 2012
The Seventh Circuit held that Scottsdale Indemnity Co. and National Casualty Co. have no duty to defend or indemnify the Village of Crestwood, Illinois, regarding claims that it supplied its residents with polluted water for more than twenty years, even though the Village was not the original polluter of the water. The decision is important in delineating the scope of the pollution exclusion, a contentious issue with significant implications for insurers and insureds. Some jurisdictions apply the broad, plain language of the pollution exclusion; others narrow the exclusion so that it has effect only in those situations involving “traditional environmental pollution.” The Seventh Circuit held that even in a jurisdiction such as Illinois, which requires the narrower “traditional environmental pollution” interpretation, the exclusion is not so narrow as to bar coverage only for the original polluter or to claims where environmental clean-up costs could have been or were incurred.

The insurance-coverage dispute arose out of allegations that the Village delivered tap water contaminated with perchloroethylene, vinyl chloride, and dicloroethylene to Village water consumers. Hundreds of the Village’s current and former residents sued the Village in over two dozen lawsuits, alleging they were exposed to contaminated drinking water from 1986-2007. The claimants allege that the contaminated water caused cancer, other serious illnesses, and death.

Scottsdale Indemnity Co. and National Casualty Co. insured the Village under twenty-two liability policies with more than $50 million in coverage limits. They declined to defend and denied coverage based on the pollution exclusion in the policies.
At issue was the scope of the absolute pollution exclusion. Under American States Insurance Co. v. Koloms, 687 N.E.2d 72 (Ill. 1997), courts applying Illinois law do not look solely to the exclusion’s plain language. Rather, Koloms instructs that the exclusion applies only to injuries arising out of “traditional environmental pollution.”

Judge Posner, writing for the Seventh Circuit, rejected the Village’s argument that the pollution exclusion should not apply because it was not the original polluter: “The defendants point out that they didn’t originate the contamination. That is irrelevant. The exclusion is of liability for harms resulting from the ‘dispersal,’ ‘migration,’ or ‘release’ of contaminants, not their creations or just their first distribution.” Though not the original polluter, the Village distributed the chemicals from the water well and “caused” the contamination of its water supply. Further, the court concluded that the exclusion’s wording makes clear that the pollution exclusion is not limited merely to situations where environmental clean-up costs were or could be incurred.

The Seventh Circuit also rejected the Village’s argument that the exclusion should not apply when the insured’s “core business activity” involves distributing the contaminated product. Separating high-risk from low-risk insureds would not be feasible. Moreover, the court rejected the Village’s argument that the lawsuit was not about pollution at all because the Village’s water supply was allegedly below the maximum contaminant level allowed by environmental regulations. The court concluded that contaminant levels are unimportant: “All that counts is that the suits are premised on a claim that the perc caused injuries for which the plaintiffs are seeking damages, and that claim triggers the pollution exclusion.”

The rationale for the decision is based on extensive consideration of the intersection of the economics underlying the exclusion, the nature and pricing of insurance, and the exclusion’s history and wording. Judges Richard A. Posner, Diane P. Wood and David F. Hamilton sat on the panel for the Seventh Circuit.

In this action, Bradley M. Jones and Anthony J. Alt represented Scottsdale Indemnity Company.

To read the opinion, click here.

Czapski v. Maher, et al., 954 N.E. 2d 237 (Ill. App.1st Dist. 2011)
Type of Case: Insurance Coverage
Practice Area(s): Insurance Coverage
Office(s): Phoenix
Date: August 03, 2011
The case involved the death of Mark Czapski, who was employed by Motor Werks as a car salesman. Mr. Czapski was killed when Christopher Maher, an individual test driving a Motor Werks BMW auto that was for sale, was involved in an automobile accident. Ms. Czapski was a passenger in the vehicle during the test drive. Mr. Maher was sued by the Czapski estate and sought coverage under the National Casualty policy claiming to be an insured under the policy.

National Casualty’s policy included an exclusion that stated customers are not insureds under the policy. The issue before the court was whether Mr. Maher was a customer and, consequently, not an insured under the policy. Maher and the plaintiff argued that “customer” was not defined within the policy and, therefore, was ambiguous and that customer should include someone who makes a purchase. Reversing the trial court’s finding of an ambiguity, the court held that a test driver of the vehicle is a customer within the common and ordinary meaning of the word, and that National Casualty did not owe a duty to indemnify Mr. Maher because he did not qualify as an insured.

Kurt Zitzer represented National Casualty before the trial court, and Tom Crouch and Kurt represented National Casualty on appeal.
PetroNet LLC v. Hartford Casualty Insurance Co.,
Case No. 0:10-cv-03675
United States District Court, District of Minnesota
Type of Case: Insurance Coverage
Office(s): Minneapolis
Date: July 21, 2011
A Minnesota federal judge granted summary judgment in favor of Hartford Casualty Insurance Company (represented by Meagher & Geer), against a technology company seeking defense and indemnification for copyright infringement claims under the Hartford liability policy's "personal and advertising injury" coverage.

Although the original and amended underlying complaints against the insured alleged that the insured infringed the plaintiff's computer code, U.S. District Judge Donovan W. Frank ruled there were no allegations that the insured infringed that code in its "advertisement." Judge Frank also concluded that coverage did not apply because the plaintiff's injuries were caused only by the insured's alleged theft and sale of the copyrighted code, and not from the presence of isolated portions of the code present on the insured's website.

Judge Frank also ruled that even if the plaintiff's allegations had otherwise fallen within the Hartford policy's insuring grant, coverage would be excluded by the Hartford policy's "breach of contract" exclusion. Although the complaints did not state any claims labeled "breach of contract," the court concluded that all of the plaintiff's claims were plainly based on the insured's officers' alleged breach of confidentiality provisions contained in a prior technology consulting contract between the officers and the plaintiff. He dismissed the coverage claims against Hartford with prejudice.