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Beware The Doctrine Of Superior Equities
By: John J. Duffy
Published in Insurance Law360
Any insurer considering settlement of a claim with the intention of recouping its payment through a subrogation action against co-tortfeasors (third parties), should carefully consider the potential impact of the
arcane “doctrine of superior equities.”
The doctrine of superior equities may have the effect of preventing any recovery against co-tortfeasors who are significantly less at fault than the insured of the settling insurance company.
The doctrine of superior equities is a remnant of the “all or nothing” era of contributory negligence but it can still pack a significant wallop to an unsuspecting insurer that satisfies a claim against an insured
and believes it can obtain some contribution toward the payment made to the claimant, from a joint tortfeasor.
Equitable subrogation allows an insurer to stand in the shoes of its insured, and thereby assert a claim against a third party that is also liable for the damages incurred by a claimant. The doctrine of superior
equities must be understood in order to be successful on a cause of action for equitable subrogation.
Continue reading Beware The Doctrine of Superior Equalities. |
The (Overlooked) Advantages of Pre-Suit Mediation
Published in The Recorder
When a personal injury plaintiff’s medical providers are reimbursed at a reduced rate for performed medical services by third party payors such as a private health insurer, Medicare or Medicaid, what amount is the plaintiff entitled to recover in settlement
or at trial? When may a party liable for those expenses benefit from the reduced rate? Most attorneys know about, and use, some form of alternative dispute resolution (ADR) as part of their litigation practice, as do many sophisticated business men and women.
Most ADR is brought into disputes, or lawsuits, after thousands of hours and dollars have been spent “fighting the fight.” How many of us ever consider the idea of mediating a contested matter BEFORE it matures into litigation?
After more than 36 years of law and mediation practice, my answer is, sadly, very few. All too often personal, financial or business concerns overshadow the simple truth that early evaluation of an issue and the
involvement of a skilled neutral third-party mediator, may set the course for an expeditious settlement. At minimum, pre-suit mediation can build a bridge over the risks, known and unknown, which can consume resources and have a destructive force that prudence
would tell all parties to avoid. The following illustrates why pre-suit mediation is a grossly underutilized vehicle for litigation avoidance.
Learn more about the advantages of pre-suit mediation. |
The Essential Elements of Job Tickets:
How To Make Sure Yours Provide Protection
By: Matthew S. Shorr
Published in Crane Hot Line Magazine
A crane company was recently held negligent in a lawsuit when a man was struck by a crane at a jobsite. An inclusive Job Ticket (or lease contract) could have prevented this company from a multi-million dollar exposure by transferring liability to the customer.
A typical Job Ticket serves several functions, including documenting type of equipment leased, hours worked, payment terms and standard terms and conditions.The standard terms and conditions are intended to cover
the equipment rental, the duties and responsibilities of the crane operator and the customer, and in the event of a loss such as indemnification and insurance, the customer’s obligations in the case of default. Indemnity is a critical term in an agreement
for crane lifting services.
Indemnity has been defined as the obligation of a party to make good on a loss or damage that another party has incurred-in this case the crane operator. Traditionally, indemnity falls into three types of agreements:
a “Type I” otherwise known as specific indemnity, “Type II” known as general indemnity, and “Type III.”
Had the crane company included a Type I indemnity agreement in the Job Ticket, they would have been potentially protected by the customer for numerous acts, including the active negligence of the indemnitee, in this case the crane operator.
Type I agreements are the highly preferred type of indemnification contracts to be used in the framework of a crane operator’s standard lease terms and conditions, given the hazards and risks associated with performing lifting operations on construction projects.
Read more about the different types of indemnity agreements.
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Encino, Ca 91436
(818) 907-4000
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So You Think You Know the Law…
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Test your knowledge on issues related to automobile accidents by answering the following questions.
1. If a driver is in an automobile accident while holding his cell phone, the driver may be presumed to be at fault and the burden shifts to the defendant driver to prove that he was not negligent rather than the
plaintiff having to prove the defendant was negligent.
(True/False)
2. If you are driving down the road and, in order to avoid a runaway truck, you drive your vehicle into a store front, you can be held liable for the damages to the store owner.
(True/False)
3. A passenger injured in a car because of the negligence of the driver can be held comparatively liable for his own injuries.
(True/False)
4. If your contractual employee (think police officer or professional athlete) is injured in a car accident as the result of a third party’s negligence, you can sue the third party for the benefits you continue to
pay your contractual employee while he is unable to work.
(True/False)
5. You can sue the fire department where the death of a loved one resulted from the firefighter’s allegedly negligent operation of a fire truck while attempting to fight a fire.
(True/False)
Please feel free to contact either Jack Liebhaber or Kevin Cruz if you have any questions on defending automobile accident related claims.
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Firm Announcements
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 Gray·Duffy
is pleased to announce
Edmund
M. Scott has joined the firm as a partner in the Redwood City office. Mr. Scott’s practice covers a broad spectrum of civil litigation matters including personal injury, construction defect, wrongful death, landlord/tenant, premise liability and employment.
Mr. Scott has extensive trial experience such as landlord/tenant, fire loss, premise liability, professional liability, childhood sexual abuse, toxic torts, crop damages and recreational provider liability matters.
 The
firm has named Michael S. Eisenbaum partner. Since joining the firm, he has represented clients in hundreds of cases involving premises liability, contract liability and enforcement, construction defect, product liability, personal injury and property damage litigation.
Mr. Eisenbaum’s expertise includes handling a variety of civil lawsuits from inception through trial and appeal.
View more Gray·Duffy profiles.
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