Defense Counsel Journal

This publication provides topical and scholarly writings on the law, including its development and reform and the practice of law in the civil defense and insurance fields.

Articles from Vol. 62, No. 3, July

Annual Survey of Fidelity and Surety Law, 1994
I. PUBLIC CONSTRUCTION BONDS A. Miller Act Bonds 1. Jurisdictional Issues Contract Disputes Act does not preclude action by subcontractor against U.S. Postal Service under Postal Reorganization act. Miller Act or other claim lies concurrently in federal...
Avoiding Product Liability Claims: How Much Testing Is Enough?
DISSENTING more than 40 years ago, Justice Robert Jackson wrote that in a "day of synthetic living," when people are dependent on manufacturers, their products "must not be tried out on the public."(1) Modern consumers probably share this view, but at...
Casualty Insurance
THERE has been a steady rise in the number of sexual harassment cases since the passage of the Civil Rights Act of 1991. Constantly evolving social customs and changing perceptions of what is acceptable behavior in the work place have profoundly impacted...
Cleaning Up under AIU insurance/FMC: The Wrong Way to Go
THE Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and similar state legislation are designed to ensure the clean up of hazardous waste contamination that threatens public health. The costs of hazardous waste clean...
EMFs and the Potential for Injury: Real Danger or Overreaction?
THERE IS much discussion and concern over the possible health effects associated with an electromagnetic field, known as an EMF. High-voltage power lines, cellular telephones, police radar guns and household electrical appliances are the main focus of...
Enforcing Limitation of Liability Provisions in Owner Architect Engineer Contracts
SHOULD AN architect or engineer be permitted to limit his liability to an owner for economic damages that may result from the design professional's negligence? A number of recent cases have dealt with the issue of whether limitation of liability provisions...
Insurance Coverage Issues Arising from Workplace Tort Claims
THE WORKPLACE and the employment environment generate four separate but interrelated sets of issues: * Liability issues in wrongful termination and sexual harassment lawsuits. * Coverage issues regarding wrongful termination and sexual harassment lawsuits...
Issues for Excess Insurer Counsel in Bad Faith and Excess Liability Cases
THE DEVELOPMENT by American courts of a cause of action for breach of the implied covenant of good faith and fair dealing has created a number of concerns for insurance carriers and their counsel, particularly in relation to liability for damages in...
Maritime Law
THERE appears to be no end to the cases that raise the issue of whether riverboats used for gaming only and that move very little are in the realm of maritime law. In Ketzel v. Mississippi Riverboat Amusement Ltd.(19) the plaintiff, a cocktail waitress...
Medical Malpractice
DEFENSE counsel seek to limit damages, to protect against purely subjective "fear" claims and to be alert to the creation of new statutorily based causes of action. There are recent developments in those three areas. Limiting damages Statutory damage...
Oops! Can I Take It Back?
CLIENTS' rights are subject to the same privileges as are the rights of penitents to disclosures made to confessors and the rights of patients to information shared with physicians. In this age of law firms breakups, secretaries and paralegals moving...
Pharmaceutical, Medical Device and Biotechnology
SOME recent unreported and quietly concluded cases may have given us the clue to the next attempt by plaintiffs' attorneys to expand liability in the medical device field in a gender-oriented fashion that mirrors other developing areas of the law. We...
Problems Arising from Additional Insureds Endorsements
PROBLEMS that result from the naming of additional insureds on commercial general liability insurance policies are becoming increasingly common in construction and other types of litigation. For example, a general contractor in a construction project...
Recoverable Damages in Wrongful Death Actions Governed by the Warsaw Convention
THE most significant recent development in Warsaw Convention jurisprudence in the United States is the application of federal common law, rather than state or foreign law, to wrongful death damage actions governed by the convention. There are two key...
Solving the Corporation's Dilemma: How to Comply with Mandatory Disclosure
CORPORATIONS and their counsel face special problems in complying with the new disclosure rules mandated by the Federal Rules of Civil Procedure, particularly in complex litigation and especially with respect to disclosure of documents. While there are...
Toxic and Hazardous Substances Litigation
THE SOPHISTICATED purchaser and ingredient supplier defenses are alive and well, at least in certain jurisdictions. Michigan law, as enunciated in Newson v. Monsanto Co.,(15) embodies a very favorable version of the sophisticated purchaser defense....

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