Experience

Heirs of a tunnel worker, who drowned while working in St Paul sewer system because he failed to follow his employer’s directive to evacuate immediately when told to do so and because his foreman that day waited too long to call for an evacuation, brought a wrongful-death suit against the City of St. Paul, the tunnel owner, and the City’s independent consulting engineer. The Minnesota Court of Appeals affirmed the district court’s grant of summary judgment to the City and engineer despite dogged attempts by the plaintiffs to create fact issues as to whether the City and engineer had retained sufficient control over the project to be held liable for the worker’s death.  In the absence of liability on the part of the City and its engineer, the heirs’ recovery would be limited to what they received in settlement with tunnel contractor’s workers compensation carrier.  Applying longstanding law, the court of appeals held that plaintiffs had failed to show that the City or its engineer retained control over the operative details of the tunnel work and that the defendants, thus, had no liability for the tunnel worker’s death.

In a medical-malpractice action, when the expert identified in an affidavit of expert disclosure under Minn. Stat. § 145.682, subd. 4 (2008) is not qualified to give an expert opinion and the defendant moves for dismissal under Minn. Stat. § 145.682, subd. 6(c) (2008), an affidavit that identifies a substitute expert witness is not an amended affidavit that corrects the deficiencies in the first affidavit. The Minnesota Court of Appeals affirmed the district court’s dismissal of the lawsuit.

Meagher & Geer defeated a $25 million dollar legal malpractice case within months after the suit was filed and before any discovery was taken or significant legal expenses were incurred. Plaintiffs were a group of investors who alleged they were not diligently represented in an underlying complex litigation case by several elite lawyers in the Phoenix area. Although those lawyers obtained a multi-million dollar settlement for Plaintiffs in the underlying case, Plaintiffs nevertheless sued alleging the settlement could have been more had the lawyers prosecuted the case differently. Meagher & Geer moved to dismiss the investor suit as untimely, arguing that Plaintiffs knew about their cause of action against their former lawyers and incurred some damages more than two years before filing suit. The Maricopa County Superior Court agreed with Meagher & Geer and dismissed the case. In doing so, the court rejected Plaintiffs' novel arguments that the statute of limitations should be tolled until they learned the full extent of their damages.

Thomas Engineering Company, Inc. brought suit against Twin City Fire Insurance Co. (“TCFI”) claiming that TCFI breached the terms of its insurance policy by refusing to defend Thomas Engineering and its officers and directors in a lawsuit brought by a former manager who asserted both derivative and non-derivative claims. Thomas Engineering sought to recover over $750,000 in defense costs. The manager filed the underlying action in his individual capacity and as a trustee for a revocable trust that held his shares in the company. TCFI moved for summary judgment, asserting that it had no duty to defend the underlying action under the Policy because the manager was an insured and the “Insured v. Insured” exclusion bars coverage. The court found that the “Insured v. Insured” exclusion unambiguously precluded coverage for all claims because the underlying litigation was brought and maintained by an insured.

The court also rejected Thomas Engineering’s argument that the application of the “Insured v. Insured” exclusion rendered coverage under the policy illusory. The court recognized that the “Insured v. Insured” exclusion precluded coverage for all derivative claims under Thomas Engineering’s current management and ownership structure. A derivative claim can only be asserted by a shareholder, and Thomas Engineering had no shareholders who were not also directors or officers (and thus, 'Insureds' under the Policy). The court found, however, that Thomas Engineering had not shown that it paid a specific premium for the derivative coverage, and thus its illusory coverage argument failed.

The plaintiff, a lawyer, sued the Better Business Bureau's Minnesota chapter and its national council because it published a "Reliability Report" that gave him a rating of B-. Plaintiff sought damages for defamation per se as well as for lost business and emotional distress, and sought punitive damages alleging that the report was published with willful disregard to his rights. The court granted summary judgment for the BBB, holding that the report, generated in accordance with the BBB's nationally uniform rating system, was non-defamatory opinion. The court further held, for the first time in Minnesota, that the BBB is entitled to a qualified privilege defense to defamation claims arising from its Reliability Reports.

Meagher & Geer represented a homeowners' association in a lawsuit brought by a developer. The developer sought to build a road across a lot he owned in a subdivision in order to gain access to adjacent land for development. The developer claimed the association that governs the subdivision had waived the right to enforce the deed restriction that prevents the building of the road. A jury found that waiver had occurred, but on appeal, Meagher & Geer successfully persuaded the court that the waiver claimed should have been dismissed as a matter of law. The court of appeals found that the developer had not presented sufficient evidence that the association's actions in the past regarding the development constituted waiver of the deed restrictions.

Minnesota's Supreme Court has addressed the high-profile issue whether in-house lawyers have Whistleblower Act protection. Plaintiff was former general counsel to Sybaritic, and his job responsibilities included management of the company's litigation. He asserted a claim under the Minnesota Whistleblower Act, arguing that he was terminated for sending an e-mail alleging, without evidence, that someone in management was concealing certain discovery documents in a pending intellectual-property case. The trial jury found in Plaintiff's favor. The Minnesota Court of Appeals reversed, finding that the Plaintiff did not engage in protected conduct within the meaning of the Minnesota Whistleblower Act, as he was merely performing his job duties. The Minnesota Supreme Court affirmed the Minnesota Court of Appeals decision, finding that while there is no job-duty defense as a matter of law, the undisputed facts presented at trial did not support the jury's verdict, as there was no evidence that Plaintiff was engaging in any conduct other than fulfilling his job responsibilities and because his purpose in sending the email was not to “expose” an illegality. The court held that to be protected, an employee must be acting outside the normal channels of the position held. A concurrence reasoned that Plaintiff's claim for wrongful termination under the Minnesota Whistleblower Act was barred because at trial, Plaintiff was found to have breached his fiduciary duties to the company by sending that email to someone outside the company.

The United States District Court for the District of Connecticut held that 19 claims and suits alleging defective construction of swimming pools did not state an "occurrence" under the CGL policy.

The insured built high-end swimming pools in Connecticut. The swimming pools cracked and failed: their walls and floors cracked. During the insured’s attempted repairs, the appurtenant structures and surrounding landscaping were damaged. Nineteen pool owners made claims and/or filed lawsuits against the insured pool builder.

Meager & Geer persuaded the Chief Judge of the District of Connecticut that defective construction is not an "occurrence." There was no published or precedential Connecticut case law. Meagher & Geer showed that the courts in Connecticut’s backyard – New York, New Jersey, Massachusetts, and Pennsylvania – all held that resulting damages to the insured’s work is not caused by an "occurrence" or "an accident." An "occurrence" implied a degree of fortuity that was not present in the claims and suits for defective construction. The damages to the appurtenant structures and landscaping were likewise not caused by an "occurrence." The nature of the repairs could not create coverage where none existed. The subcontractor exception to the "your work" exclusion did not manufacture coverage under the CGL policy’s insuring agreement. Courts in Pennsylvania, Massachusetts, New York, and New Jersey had already considered and rejected such an argument.

The plaintiff sued LCA Vision for complications arising from Lasik surgery performed at LCA. The surgeon was not sued, although his conduct was specifically referenced in the original complaint. He was not employed by LCA. Plaintiff failed to meet the deadline to disclose experts against LCA, and the court dismissed the complaint against LCA, with prejudice. Prior to LCA’s dismissal, plaintiff had amended the complaint by adding the surgeon as a defendant. After LCA was dismissed, surgeon then moved for dismissal, based on the expert disclosure statute, which the trial court granted. The Court of Appeals affirmed, holding that dismissal was proper under operation of the expert affidavit statute given that the surgeon's identity was known at the time of service of the original complaint. Accordingly, the deadline to disclose experts against the surgeon was the same as the deadline as to LCA. Plaintiff failed to meet the deadline, and could not circumvent the statute by adding a known defendant later.

Plaintiff toddler, by and through her guardian ad litem, claimed a permanent respiratory impairment due to exposure to a biocide used to destroy mold growth in the basement of her home. Third-party defendant Dri-Eaz sought summary judgment, arguing that failure-to-warn claims were precluded by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Dri-Eaz also argued that the claims brought by a sophisticated user, a professional mold abatement firm, failed as a matter of law because the mold abatement company failed to follow the manufacturer’s written instructions provided with the product. Summary judgment was granted in favor of the third-party defendant.