Spring Break and summer “vacation”

I’m taking a vacation this summer!

Not really….However, I am taking one classroom class (Constitutional Criminal Procedure 1) and doing a summer internship at the Office of the Public Defender in Cecil County.

Why am I calling this a vacation?

1) Taking only one class means only thinking along one doctrinal line….right now I am taking 5 classes and thinking about 5 different things at any given time.

2) The internship is local: Right now I drive into Baltimore from my home 5 days most weeks. This summer I will only be driving in 3 days for week. This is a big break.

3) I am also beginning my “clone myself” process, hopefully in the next few weeks. My valued assistant at work, who left a few months ago, is likely returning. My goal is to train her to replace me, once I am a lawyer. My schedule this semester has created a significant disconnect between me and the office. Essentially, I’m only in the office 2 and a half days per week, I really have no idea what is going on day to day. When I serve as the “office manager” this is a big deal, negatively. My hope is to train a new office manager. One that I know well, trust, and will kick ass and take over for me.

We are working hard to create significantly streamlined systems in the office, and we are getting very close.

There are a few pieces of the puzzle that are missing, some of which we are working to fill and solidify.

A lot of this should get ironed out over the next week, during my spring break. I’ll be spending much more time in the office.

 

 

Looks what Sandy left in my path

Here’s a fun one… Due to hurricane Sandy, I had to take a few days off of my running regimen. I recently found a trail near my house that I have been running on. It provides a “less boring” experience than running on the road, or in circles, or on a treadmill. It is suspected by most, if not all, who know me, that I may suffer from some attention deficit disorder, so this is a good thing for me. Scenery, music, and structure help with doing pretty much anything. So earlier this week I got “back on track” or trail if you will when it comes to the running, only to find this fun little gem in my path:

Well, I can’t say that was inserted or uploaded quite as I had intended, so I suppose you’ll have to turn your head to see the full image.

Fun times, but it hasn’t gotten in my way.

I am interested to see how long this stays there…..I may not even still live here when/if it is removed!

 

Running pains?

So I’ve decided over the past few weeks to begin running. I’m essentially “training” to run a 5K, although it doesn’t seem like too much of an achievement, its still something that I’ve decided to do. Its a benchmark, I suppose, in me trying to be healthier based on the fact that I have 2 young children, and they’d probably appreciate me sticking around awhile, and being able to run with them whilst doing so. Early on in the running experiment, I had some issues with my ankle, some pain, stiffness, etc. Sought some help, and have recently gotten some Dry Needling Therapy. What is dry needling? Its kinda like acupuncture, except more, I dunno, “medical”? I can’t really describe with any proficiency the true differences, because I do know it utilizes the same principles as far as releasing trigger points and utilizing the natural mechanics and inter-ecosystem of the body to promote healing. I received this treatment several times last year as a result of an auto accident when I was suffering from some lingering headaches. It worked then, so when suggested this time I was certainly on board.

Anyway, the running now continues due to this treatment. I’m registered for my first 5k on thanksgiving day in NH. Good times!

 

This is what I do when I’m not studying for law school

One of the things I’ve learned in my first year and a half-or-so of law school is how to find creative ways to procrastinate. Its not altogether atypical of me to procrastinate, but when you’ve got hours of  cases to read, its real easy to find other things to do, like laundry, feed the kids, or play strange card games.

Fluxx is one of these strange card games that I just started playing. Its by a local company called Looney Labs. They’re based here in Maryland, and I have played a couple other games of theirs in the past. Fluxx is a simple to learn, infinitely changing, complex game. Yes, simple and complex.

Check it out–You start off with a basic rule, draw one card per turn, play one card per turn. Then, throughout the game players can play new rules, which totally skew the way the game is played. There are also goal cards in play, essentially “how you win.” Each of these can be changed as well. Are you starting to recognize why this game is called fluxx? If not, then this may not be the game for you. Anyway, if you’re looking for a fun game for a handful of friends to just pull out of the box and play, this might be it. Also a great game for drinking, etc.

Insurable interest

Can I pick the most dangerous neighborhood in the country, and take out a $250,000 life insurance policy on 100 random people? Knowing that the likelihood on one of them getting killed this year is pretty high, and the likelihood of me being a millionaire in the next 5 years is equally high?

Probably not. Not if I don’t have an “insurable interest” in the people whose lives I am insuring. Do I stand to benefit more from them alive? Do I stand to actually suffer a loss if they do die? If the answer to these questions is No, then there probably isn’t an insurable interest, and any policy I bought or tried to buy would be deemed not a contract for insurance at all.

What if i’m leasing a property, that I use for business purposes and supporting myself and my family. Can I insure the life of the owner of that property?

As you may have noticed, these cases hinge greatly on the facts. I can insure my wife’s life. My mother, brother, or other blood relatives with what seems to be no issue. My car, my house, even my own business. These all seem obvious, so where’s the fun in even asking? When it comes to non-relatives, or property that one does not own, or other peripherals, it becomes more difficult, and less “black and white.”

 

Snethen v. Oklahoma State Union of Famers represents one of those strange cases. Snethen buys a car, he insures the car, and then is in an accident in which the car is damage. Will his insurance company pay for the damage? Sure they will…or will they? Turns out the car Snethen bought was previously stolen, unbeknownst to him and the insurance company doesn’t want to pay, claiming that Snethen cannot have an insurable interest in stolen property. In this case the court decides that since his reliance upon the sale and the purchase of the insurance policy is honest and reasonable, that he in fact does have an insurable interest.

Beard v. American Agency Life Ins. Co., 314 Md. 235 (1988) is the case I referenced earlier, about leasing a property for business purposes, and insuring against the death of the owner. In this case, we deal with 150 acres of farm land in western Maryland. There is discussion of the owner selling the lessee the property, upon his death. Since the lessee doesn’t really have the money to buy it, he takes out a life insurance policy against the owner, for the cost of the land. Essentially getting the insurance company to buy the property for him, when the time is right. One major issue is that he stops leasing the property, sells all of this business equipment and disengages entirely years before the owner passes away.

Maryland actually defines criteria for an insurable interest:

(1) In the case of individuals related closely by blood or by law, a substantial interest engendered by love and affection.

(2) In the case of other persons, a lawful and substantial economic interest in having the life, health, or bodily safety of the individual insured continue, as distinguished from an interest which would arise only by, or would be enhanced in value by, the death, disablement or injury of the individual insured.

(3) An individual heretofore or hereafter party to a contract or option for the purchase or sale of an interest in a business partnership or firm, or of shares of stock of a closed corporation or of an interest in such shares, has an insurable interest in the life of each individual party to such contract and for the purposes of such contract only, in addition to any insurable interest which may otherwise exist as to the life of such individual.

Labor Law: Actions in concert

In NATIONAL LABOR RELATIONS BOARD v. WASHINGTON ALUMINUM CO. we look at what constitutes a concerted action, in accordance with NLRA Section 7. The case pertains to an aluminum manufacturing factory in Baltimore, MD in the late 50s that in the winter time was extremely cold. At times to the point of inhospitability(I think i made that word up). There are a number of workers in the factory, that from time to time complain to their supervisors about the cold, and how difficult it is to work. One extremely cold morning they are complaining to a supervisor who says “if those fellows had any guts at all, they would go home.” Shortly there after, they decide to leave. 7 of the 8 workers leave, the 8th was about to leave, but was somehow coerced into staying. There is a company policy that forbids employees from leaving the facility without permission. The workers are fired for violating said policy. They sue, NLRB finds in their favor, stating that their protest is a concerted activity in accordance with section 7, and that they should be reinstated and given back pay. On appeal, the decision is upheld. While there is no organized union, or notice that they were specifically “on strike” the actions were permissible under section 7, and protected as actions in concert. They did complain on several occasions to the employer, specifically about the working conditions, and nothing was done to remedy them. They then, in concert, decided to leave due to the extreme cold.

 

The Basics of Insurance

This fall I am taking a course that clearly does not get the respect that it deserves. I say this, because Insurance is something that everyone deals with, and most attorneys work with. I mean, if you’re a patent attorney or a family attorney you might not, but the “bread and butter” attorneys work in insurance, whether for defense, plaintiff’s work, or even in a non-litigation facility. I think something like 18% of the United States GDP is from insurance holdings. However, this course is only offered for 2 credits. What a shame. Maybe my opinion is skewed because insurance companies essentially pay my pay check. 80% or more of our office comprises of auto accident cases or other serious injury claims, all to be paid by insurance companies. We handle criminal defense cases, but those clients rarely pay, and it represents an ever dwindling percentage of our overall caseload, especially with the new marketing that we’ve done since April.

That being said, I look forward to the rest of this course. Even at 2 credits, I’ll probably get as much if not more out of this course than any of the others that I am taking this fall.

 

Week 1’s Cases:

GAF Corp. v. County School Board

(hey, i think that linked to the case. Whee!) This is a case of what is insurance? GAF is a company out of Delaware that manufactures, distributes and installs(unclear as to whether this is part of what they do or not) roofs and roofing shingles. They contract with a school in Virginia for roofing work. Among the work was a guarantee as follows:

“The contracts contained a guarantee in which GAF agreed to repair damage to the roofing membrane and base flashing resulting from leaks caused by natural deterioration of the roofing membrane or base flashing, blisters, bare spots, fish mouths, ridges, splits not caused by structural failure, buckles and wrinkles, thermal shock, gravel stop breaks, plastic pans, workmanship in applying the membrane and base flashing, and slippage of the GAF products. The guarantee excluded leaks caused by natural disasters, structural defects, damage to the building and certain other events unrelated to any defect in GAF’s products.”

The case is on appeal for a decision to quash service on GAF. In Virginia there is a procedural method of effecting service on an insurance company that is not authorized as an insurer in Virginia. This action also allows for additional damages, including attorney’s fees, which would not be applicable in a simple breach of contract/breach of warranty issue.

The issue is whether or not the guarantee provided by GAF constitutes insurance, or a mere guarantee. This case is somewhat unique, as the wording and terms of the guarantee, as above, appear to go “beyond the normal scope” of a quality of product warranty but the court finds that it does not rise to the level of insurance. The case was remanded back to the district court with instructions to quash service.

Rawlings v. Apodaca

Bad faith! This case represents the evil swinging hammer that is lurking in some jurisdictions behind insurance companies, in an effort to make sure that they do what is right to protect their insureds. In this case, there is a farm owned by Rawlings that has insurance on some or all of the buildings. There is a fire, that is suspected to have been caused by the neighbor, Apodaca, which spreads to the Rawlings farm and destroys a building. The building is insured through Farmer’s insurance for $10,000, however the damage is much more extensive. Farmer’s orders a fire investigation, and Rawlings asks whether or not they will have access to the report, or if they should order one of their own. Farmer’s states that they will share the report.

The report reveals that Apodaca is the cause of the fire, and that they, too are insured with Farmer’s, except for $100,000.00. Too late to hire a fire investigator, Rawlings is denied the report from Farmer’s. They sue both Apodaca and Farmer’s both in tort(Apodaca) and Bad faith(Farmer’s). An insurance company has a duty to protect its insured, and can not “screw over” their insured to protect their own interest. Rawlings wins the claim, both against Apodaca, and against Farmer’s, for punitive damages. Moral of the story, which doesn’t see to really be learned, is that insurance companies cannot(shouldnt) screw people over, especially their insureds. However, my experience tells me that they will push this issue as long and far as they can, just to save a buck. In jurisdictions with bad faith and punitive damages, not paying claims is dime smart, and dollar foolish.

Deschler v. Fireman’s Fund American Life Insurance

This case delves into the intricate language of insurance policies, specifically when they pertain to exclusions in a policy. This is a case in which party Deschler has a life insurance policy, and dies in an accident involving a water ski kite. The case goes into the technical details of how the water ski kite operates, and how he came to pass. There is an exclusion in the policy, negating payout if death arises as a result of use of a  “device for aerial navigation”. The question the court tackles is more of a semantic definition of the wording, and what the water ski kite is. The decision states that the water ski kite is a device for aerial navigation, and the dissent disagrees with an interesting argument. Its the battle of engineers, when most of the judges probably are not engineers. The majority defines the aerial navigation devices by 2 broad criteria: (1) the aerodynamic principles which affect its ability to become and remain airborne, and (2) the degree of control which the operator has over its direction, speed, and the timing and place of landing.

The dissent interestingly concludes that by this theory that an amusement park ride would be a device for aerial navigation, which is clearly untrue:

“The question presented by this appeal is restricted to whether a device which is tethered to the earth is a device for aerial navigation. Like many amusement park rides which remain tethered to the ground by cables and other mechanical means, a water ski kite depends for its operation upon its tether to the boat which it trails. Clearly amusement park rides are not devices for aerial navigation. Similarly, water ski kites cannot be so considered. There is no legitimate distinction between them.”

 

 

 

Learning to represent clients

In professional responsibility we are learning how to represent clients. Its important to note that the reasonable thought of a client, as to whether or not you as an attorney, represent the client.

This is a somewhat straightforward seeming class, probably because I’ve spent a number of years in a law firm, adhering to and checking in on rules of professional responsibility.

Very black and white, no manipulation like in other classes, i.e contracts…

Year 2

I know things got real busy at the end of last year. I got tied up with life, family, my wife’s surgery, and classes.

Turns out I got through the spring, as well as a summer semester, and now am in the fall semester of my second year.

Courses this year include:
Professional Responsibility

Labor Law

Constitutional Law 1

Insurance Law

 

Should be a fun semester, I’ll do what I can to post regularly.

Breach of Duty?

Was there a breach of duty? How do we know(1) and who decides(2)?

1) By default, using the R.P.P. standard and 2) The Jury.

What is the Duty of care? the duty owed is to exercise the care that would be exercised by a RPP to avoid foreseeable harm.

Example:

Catherine is an avid runner. She enjoys running along a bike/walking path. One afternoon, Catherine was running with her headphones on, listening to Green Day. The segment of path she was on goes next to a park with several ball fields. As she was running, she noticed a group of people playing softball coming up ahead on her right in those fields. As she was watching them and running toward them, her head turned toward the action on her right. What risks, if any, are created by Catherine’s conduct?

There are 2 possibilities here, as there is no actual tort which occurs in this partial scenario:

1) nothing happens

2) something happens, involving an injury.

Beware of risks that in hindsight, appear to be foreseeable.

How do we assess the risks, and whether or not Catherine has breached any duty of care?

 

Piper v. Parsell, 930 A.2d 890 (Del. 2007).

3 parties in a pick up truck in Delaware (Hello, I’m in Delaware) on of the passengers reaches across to jack the wheel, and the vehicle swerves, but driver gets the vehicle under control.

Ordinary behavior would not have the driver being negligent, as they would not ordinarily foresee anyone to reach across and grab the wheel.

However, when it has happened before and the passenger tries to do it again, there should have been some action on the part of the driver to control his passenger. The driver having laughed about the occurrence in fact increased the risk by positively reinforcing the behavior.

This is the type of question that should ultimately be answered by a jury. In this case the court remands for the jury to evaluate whether or not there is negligence.

 

Indiana Consolidated Insurance v. Mathew

The question in this case is whether or not Defendant, Mathew, has a duty to act differently in the situation where his brother’s lawn mower lights on fire. Questions raised include his duty(or lack there of) to try to move the lawnmower out of the garage before starting, after it is on fire,.

The insurance company is attempting to subrogate against the brother for what they paid out in the claim, after the tractor/mower lit on fire and burned down the home owner(not the defendant’s) garage.

The court held that the garage was a place designed to start engines such as lawn mowers, cars, etc, and he was under no such duty.

The court held that he did not fill the gas tank entirely and waited 20 minutes before starting the engine, so there was no negligence there.

The court held that it was unreasonable for defendant to risk his own life to try to save mere property by pushing the burning lawn mower out of the garage.

The insurance company in this case makes an argument that essentially states that they would have preferred to make a wrongful death settlement than merely a property damage settlement as they did.

 

Side commentary on risk (enjoy it):

 

Ok, and now back to actual class discussion….

The 68 Buick Skylark!

A vehicular accident caused collateral damage involving the knocking down of a light pole, which seriously injured a few bystander pedestrians. These pedestrians, or at least the most seriously injured one, sues the company that makes/installs the pole as well as the driver of the car as co-defendants.

The plaintiff’s argued the pole company could have done more to prevent this type of accident. The company has a truck that does nothing but to replace these poles. They had an expert that stated they could have used stronger bolts for just a few dollars.

Assessing the Defendant’s Conduct

  • What precautions did Def. take to address risks?
  • What is ‘ordinarily’ done?
  • What were the risks to Def. of acting to protect Plaintiff?
  • Is Def. the better person to task with mitigating risk?
  • How obvious is the risk to a potential plaintiff?
  • What are the costs to Def. preventing the risk from happening?

This court decides to throw all of these questions to the jury to sort out as to what is or is not reasonable?

U.S. v. Carroll Towing Co.

This is pretty much a landmark torts case (maybe more so than spring guns??) about someone who’s job is to be on board a barge looking over a situation, who decides to dip out for awhile. Whilst he is out(imagine that).

Here’s the ‘hand formula’ from Judge Learned Hand (our fav. from Civ Pro 1?) to determine whether the defendant has breached his duty of care. There are 3 variables

B (burden on defendant of avoiding the harm–Cost$$)

L (Loss/harm that plaintiff suffers due to defendant’s actions-damages$$)

P(Probability that plaintiff suffers harm due to defendant’s actions-foreseeable, not in hindsight)

if B<PL then defendant is liable for the harm.

Assume:

If it would cost the defendant $30,000/year to have a bargee on board during daylight hours.

If there were a breakaway, the average loss would be $25,000.00

These breakaways typically happen once/year.

Assuming the above, the B($30,000) is not greater than $25,000×1. The defendant does not have such burden in the assumed scenario.

If the average number of losses increases to twice per year (or even thrice every 2 years) the math changes, and the burden shifts to the defendant to hire the bargee to prevent these losses.

Here’s an example of the Learned Hand math, from pop culture.

Disclaimer- I pulled this youtube video while in class and did not actually check to see if it is what it purports. If it isn’t what I anticipated, and you view this before I have a chance to change it, I apologize!


Back to the scenario above for Catherine:

Catherine is an avid runner. She enjoys running along a bike/walking path. One afternoon, Catherine was running with her headphones on, listening to Green Day. The segment of path she was on goes next to a park with several ball fields. As she was running, she noticed a group of people playing softball coming up ahead on her right in those fields. As she was watching them and running toward them, her head turned toward the action on her right.

Now, assume that when Catherine is looking at the softball game, Susan comes into the path ahead of Catherine from the left(out of her line of vision) and Catherine crashes into Susan, causing injuries to Susan. Did Catherine breach any duty to Susan? How would you assess whether or not this breach occurred?

What would a reasonable and prudent person in Catherine’s situation do? Would they look out for their own safety, and pay closer attention to the softball game? Or would the risk of a bigger harm, such as a bike coming into the path ahead of them supersede that risk? Is it foreseeable that someone would enter the path ahead of her? If so, what is the likelihood that harm would be caused if there were a collision? Does Susan assume a similar risk when entering the path, and does she herself have a duty to look out for oncoming runners/bikers/etc before entering? Does the boulevard rule that applies to drivers also apply to runners/bikers?

Other factors to consider: What is the traffic on the bike/running path that day? Why was she looking at the softball game- simply watching or watching out for her own safety?