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Harris, Karstaedt, Jamison & Powers, P.C. Win

Andy Carafelli and Dino Moncecchi were successful in arguing a GC was the statutory employer of their subcontractor welders. The welders showed up high on meth and cocaine and started welding a pipe which was under pressure causing an explosion that killed 2 of the welders and seriously injuring a 3rd. Case was dismissed as to HKJP clients. Last demand was $40 million and case was set to go to trial in 2 weeks. 


Interpreting the Fine Print – When Contractual Language Does Not Translate

February 2023 • Source: Stephanie E. Bendeck, Melick & Porter, LLP

Insurers and business owners alike need to be aware of the changing legal landscape surrounding their general liability policies and contracts. On January 20, 2023, in Gorelick v. Star Markets Co., Inc., 102 Mass.App.Ct. 219 (2023), the Middlesex Appeals Court of Massachusetts decided how far the duty to defend provision in a purchase order between two businesses could extend.

A supermarket, Shaw’s Supermarkets, Inc. (“Shaw’s”) had purchased an automatic door from Stanley Access Technologies, LLC (“Stanley”). A personal injury claim was filed by May Gorelick (“Gorelick”), alleging that the automatic door installed by Stanley at a Shaw’s store struck her and caused her to sustain severe injuries. Gorelick accused Shaw’s of improperly maintaining the doors, and she accused Stanley of improperly installing the doors.

The relevant documents to the transaction between Stanley and Shaw’s included a purchase order (“PO”). Stanley also included a separate warranty document. The PO between Shaw’s and Stanley contained the following language:

Supplier hereby indemnifies, defends and holds harmless SUPERVALU [and] its affiliates ... from and against any and all claims, actions, fines, penalties, liabilities, damages, injuries, costs and expenses (including, without limitation, costs and expenses for investigation and litigation and reasonable attorneys’ fees) which arise out of or in connection with Supplier or any of its employees’, agents’, subcontractors’, or independent contractors’ breach of any covenants, warranties or representations made herein.

Stanley defended itself in the lawsuit, but it refused to defend Shaw’s. At trial, Stanley and Shaw’s presented separate defenses. The jury found that Shaw’s was negligent, but its negligence was not a substantial contributing cause to the injuries. The jury found that Stanley was not negligent. Shaw’s then brought claims against Stanley, arguing that the PO required Stanley to defend it against claims that related to problems with the doors. The legal fees for Shaw’s defense totaled $237,438.37.

The “in for one, in for all” rule, also known as the “complete defense rule” requires general liability insurers to defend an insured on one of the counts alleged against it, even if the other counts are not covered. GMAC Mtge., LLC v. First Am. Title Ins. Co., 464 Mass. 733, 738, 985 N.E.2d 823 (2013); Mount Vernon Fire Ins. Co. v. Visionaid, Inc., 477 Mass. 343, 351, 76 N.E.3d 204 (2017). Massachusetts appellate courts have not applied this rule outside the general liability insurance context. In this particular case, the appellate court decided that it would be inappropriate to extend the rule under these circumstances. First, Stanley is not an insurer, and the PO is not an insurance policy. Although courts have sometimes applied insurance principles to commercial contracts, the same standards do not govern “indemnity and duty to defend provisions in the commercial and insurance contexts.” Siebe, Inc. v. Louis M. Gerson Co., 74 Mass. App. Ct. 544, 556, 908 N.E.2d 819 (2009). See Johnson v. Modern Cont. Constr. Co., 49 Mass. App. Ct. 545, 548, 731 N.E.2d 96 (2000) (“We do not consider coverage questions under an insurance contract analogous to coverage under an indemnity provision of a construction contract”).

The transaction itself between Shaw’s and Stanley was simple – it involved the purchase and installation of automatic doors. Stanley’s duty to defend was limited to claims that “arise out of or in connection with” Stanley’s breach of one of its warranties. Thus, the scope of Stanley’s contractual duty to defend was limited and was directed towards risks that were already existing on the date that Stanley installed the doors at Shaw’s. There was no other evidence, in the circumstances surrounding the transaction or in the purchase order itself, that demonstrated that Stanley intended to defend against claims that were unrelated to the breach of one of its own warranties. Thus, the rationale of the “in for one, in for all” rule was not implicated because it would not be impractical to divide the representation between the covered and noncovered claims. Finally, Shaw’s did not allege that the case was defended in a coordinated way; the record confirmed that Shaw’s and Stanley presented separate defenses at trial. The claim that Shaw’s was negligent in maintaining or inspecting the automatic door was not one that arose out of or was connected to a breach by Stanley of its warranties that the door was free from defects and installed in “a good workmanlike manner.” The appeals court further opined that “[a] contrary reading would “threaten[ ] to sweep a whole host of uncontemplated risks into the ambit” of the provision. Deutsche Bank Nat’l Ass’n, 465 Mass. at 747, 991 N.E.2d 638.

The fine print can have large consequences. When preparing transactional documents of any kind, be wary of the language included, particularly when that language is being included to protect or indemnify another party. The team at Melick & Porter, LLP is prepared to guide your business with its contract-drafting and interpretation needs. 


Alabama Supreme Court Continues to Define Wanton Conduct in Regard to Driving

February 2023 • Source: Bailey Curtis, Clark, May, Price, Lawley, Duncan & Paul, LLC

Recently, the Alabama Supreme Court released its opinion in Renee v. Sines, where the Court examined wanton conduct in the context of a driver using their phone. No. 1210037, 2023 Ala. LEXIS 9 (Feb. 17, 2023). Before Renee, the Court has declined to give examples of what specific actions by a driver constitute wantonness. In the opinion, the Court affirmed that a jury may consider speeding and cell phone use as evidence of wanton conduct, especially where the driver recognizes that each is a potentially dangerous activity. Id. at 6. 

This case arises from an auto accident where the driver, while consciously speeding, took her eyes off the road and picked up her cell phone to change the song.  Passengers in her vehicle had asked her to slow down.  She then ran into traffic that was stopped in front of her before hitting another car head on. 

The Alabama Supreme Court acknowledged that self-destructive behavior may establish wantonness when the conduct simultaneously endangers others and the defendant , such as driving under the consumption of alcohol. The Court affirmed the trial court’s decision, holding that there was substantial evidence the driver acted wantonly by “intentionally violating the speed limit, while actively engaging with her mobile phone while driving, and with the knowledge that her actions constituted a risk of probable harm to herself and her passengers.” 

The driver attempted to argue that she was only momentarily distracted, however, the Court made the distinction that the driver’s conduct rose above mere distraction when the driver the made conscious decision to pick up and engage with her phone.  Thus, making this action a result of a conscious choice, not a mere distraction from inadvertence. The Court further stated, “active phone use like texting, browsing the internet, or engaging with a music app is qualitatively different from distractions that are not the result of a conscious act or that arise from an inadvertent reaction to some external event or stimulus.”

This opinion has the potential to increase amount of wantonness claims that are brought before an Alabama jury. Not only does the Court give examples of what specific actions by a driver constitute wantonness, they also lay the ground work that other distractions that are the result of a conscious act can give rise to a viable wantonness claim.  Defendants can expect to see this logic and argument used in future cases, including commercial vehicle accidents.


Clark, May, Price, Lawley, Duncan & Paul, LLC Hires Four New Attorneys

February 2023 • Source: Clark, May, Price, Lawley, Duncan & Paul, LLC 

CMP Announced the hiring of four new attorneys in recent months:

Anna Alyce Eastburn: Anna Alyce earned her B.A. in Psychology from the University of Alabama, and her Juris Doctorate from Cumberland School of Law.  While in law school, Anna Alyce was a member and a Research and Writing Editor of the American Journal of Trial Advocacy, as well as a member of the National Negotiation Team, Trial Advocacy Board, and Women in Law.

Bailee Curtis: Bailee attended the University of Alabama and double majored in Political Science and Public Relations where she graduated magna cum laude. Bailee earned her Juris Doctorate from Cumberland School of Law.  While at Cumberland Bailee cultivated her advocacy skills in preparation for a career in litigation. There she found success as a member of Cumberland’s award-winning National Trial Team.

Andrew Triplett: Andrew attended Birmingham-Southern College, earning his B.A. in History with a minor in Psychology.  He received his Juris Doctor from Cumberland School of law.  While at Cumberland, Andrew served as the Deputy Chief Justice of the Honor Court as well as Vice Chancellor of the Thomas More Society.  He was a student athlete at Birmingham-Southern as a sprinter and hurdler for the BSC track team.

Anthony Irwin: Anthony received his B.A. with a double major in History and Criminal Justice from the University of Alabama.  He also attended the UA School of law, obtaining his juris doctor. 


BHH Wins Summary Judgment for Municipality in Multimillion-Dollar Fire Case 

February 2023 • Source: Burden, Hafner & Hansen, LLC

Partners Donna L. Burden and Sarah E. Hansen, at Burden, Hafner & Hansen, LLC, in Buffalo, NY, won a Motion for Summary Judgment in Erie County Supreme Court on February 22, 2023, on a multimillion-dollar suit for serious personal injuries to a family of five in a 2017 fire.   The case involved an apartment fire deliberately set by an arsonist, who is still imprisoned for his crimes, pouring accelerant into the interior common stairwell of a multiple unit apartment building.  The Plaintiffs sued the municipality, as well as the property owner, on the basis that it did not properly inspect the property and failed to cite the property owner for code violations.  Plaintiff father sustained severe orthopedic and spinal injuries primarily to his left foot and spine from jumping from the window. The mother was on life support with a severe inhalation injury complicated with respiratory failure, and required prolonged mechanical ventilation and tracheostomy, and sustained severe burns across her shoulder and upper back.  The oldest child, then 5, cut her face on the broken glass on the ground, leaving a scar across her face, and sustained injuries from smoke inhalation, collapsed lungs and burn scars across her head. Another child, then 3, sustained a collapsed lung and bad burns across his forearm and thighs and was transported out of town for burn injuries and skin grafting. The youngest was 6 months old and sustained smoke damage. Four of the Plaintiffs claimed significant PTSD.   The Court granted our Summary Judgment Motion based on lack of special duty.   It found that the municipality “neither voluntarily assumed a duty to Plaintiffs, nor did [it] take positive control of a known and dangerous safety condition.”  The Court also found that the municipality did not owe any special duty to the property owner as to the fire or the events preceding it for the same reasons. 

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