Tenth Circuit Finds Indemnity Clause Unenforceable Under Fair Notice Rule In Pipeline Case
Posted on Dec 11, 2014
While building a water pipeline in the 1970s, a construction company engaged a contractor to perform some of the work. In a 190-page plus contract, the construction company promised to indemnify the contractor for claims resulting from the construction company’s work. During construction, the construction company accidentally hit a methanol pipeline and caused a leak, but the leak was not discovered for more than 20 years. The owner of the methanol pipeline sued the construction company and the contractor, and even though the latter companies prevailed, the contractor incurred more...
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Washington Federal Court Emphasizes Privilege Logs Must Describe Nature Of The Documents Withheld
Posted on Dec 11, 2014
The issuer of a commercial property insurance policy refused to indemnify its insured for losses resulting from the failure of a methane purification system at a landfill gas processing facility in the State of Washington. The insured filed suit and then sought to compel production of the insurer’s entire claim file or have the court agree to an in camera review of the relevant portion of the claim file the insurer was attempting to withhold on grounds of privilege. The U.S. District Court for the Western District of Washington determined that neither party’s request for a...
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Designated Corporate Witness Must Testify About “Information Known Or Reasonably Available” To Entity
Posted on Dec 11, 2014
In response to a Rule 30(b)(6) notice of deposition, a company “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify … The persons designated must testify about information known or reasonably available to the organization.” The rule, however, does not obligate the noticed entity to produce a specific corporate witness, which the U.S. District Court for the Eastern District of Missouri emphasized yesterday. The...
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Best Practices For E-mail Communications
Posted on Dec 10, 2014
As 2014 comes to a close, there is no better time to remind your workforce about the perils of e-mails. In any litigation arising after workplace incidents or operational failures, many of the exhibits are often e-mails between workers or an e-mail from the worker to an outside third party. The consequences can range from reputational harm to lost sales to public embarrassment to legal liability. Key questions to ask before hitting send: Can this be misinterpreted? Did I choose the right tone? Is the subject matter appropriate? Is “Reply All” really necessary? Do you know who the...
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Some Evidence Of Knowledge Required To Survive Summary Judgment In Workers’ Comp Retaliation Claim (Ohio)
Posted on Dec 9, 2014
The Court of Appeals of Ohio, Eighth Appellate District, upheld a trial court’s dismissal of a workers’ compensation retaliation claim, finding that the plaintiff failed to present any evidence to support an inference that he was discharged for filing a workers’ compensation case. The plaintiff, a maintenance technician, filed a workers’ compensation claim after being injured when he failed to follow a company safety procedure while attempting to repair a machine. He was terminated approximately two months later. In reviewing the trial court’s opinion, the appellate court explained that...
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Removed Rail On Protective Cage Surrounding Gantry Leads To Trial Following Asphalt Plant Worker’s Injury
Posted on Dec 3, 2014
While attempting to fill a tanker truck with asphalt at a West Virginia asphalt plant, a worker fell and incurred serious injuries. The worker sued the plant owner for negligence including in part because one of the bars on the protective cage surrounding the gantry used to fill the tanker had been removed after it had been installed. The U.S. District Court for the Northern District of West Virginia denied summary judgment to the plant owner earlier this week and indicated that the case will proceed to trial. The evidence produced by the worker to survive summary judgment included that...
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Bypassing Pollution Control Devices Costly For Shipowner Following Coast Guard Sanctions
Posted on Dec 3, 2014
In 2010, the U.S. Coast Guard inspected a Norwegian-flagged oceangoing tank vessel while it was docked in Corpus Christi, Texas. Based on inspections, witness statements, and evidence collected from the vessel, the U.S. Coast Guard concluded that the ship’s pollution control devices were inoperable or had been disarmed and that the ship failed to comply with her own Safety Management System. The agency issued an order revoking the ship’s Certificate of Compliance and ordered that the ship not re-enter U.S. waters for three years, or until after the ship’s owners developed...
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