May It Please The Court
Quote of the Day - No good fish goes anywhere without a porpoise.
Courts Rule It's Not Nice For Mother Nature To Fool Proposition 65
Proposition 65 is that twigs, nuts, fruits and berries statute out here on the Left Coast that warns consumers that just about everything in existence contains chemicals known to the State of California to cause cancer, birth defects and reproductive harm. At least in California, that is. The other 49 states don't give warnings to their citizens; presumably they just know.
Many businesses call it a bounty-hunter statute. At least one law firm lost its license to practice law because it filed too many of these lawsuits. To top it off, one appellate court awarded a plaintiffs' firm $1.98 instead of the several tens of thousands it wanted in attorneys fees.
Can you tell not everyone thinks the statute is a good idea?
There are a number of attorneys, however, who have campaigned to eliminate toluene from nail polish, lead from soda bottles and formaldehyde from schools. In fact, I stopped eating shark and swordfish given the mercury warnings on restaurant menus. That chemical should be in thermometers, not in fish.
There are many Californians who believe Prop 65 has made the state a safer place to live, even though there are no warnings for earthquakes. But I'm off-topic.
Still, tuna contains a chemical known as methylmercury in amounts that occur naturally in the environment, not as a result of pollution. It's just part of the fish. Unfortunately, however, methylmercury occurs in tuna in amounts that are higher than the state's threshold limit. Fortunately or unfortunately - I don't know which - when you apply the Prop 65 statute, you have to deduct the level of naturally occurring methylmercury from the amount found in the tuna, and when you do, the amount left is not higher than the threshold limit. The consequence of this mathematics means that the purveyor of the tuna does not have warn consumers that the tuna violates Prop 65.
The state didn't like that outcome and filed suit against the purveyor, in a case entitled People v. Tri-Union Seafoods, LLC, who fought the lawsuit using the facts and arguments I described in the last paragraph. The trial court agreed with the Seafood company, and so did the appellate court.
So, if Mother Nature puts chemicals in food that are known to the State of California to cause cancer, birth defects and reproductive harm, you may never know it if Mother Nature intended it that way. At least according to California courts.
We'll be just as well-preserved as Egyptian mummies just from the food. No chemicals or preservatives added.
Lawyer 2 Lawyer Internet Radio Discusses the Recent Wyeth Ruling
How will the pharmaceutical companies, doctors and patients and legal cases be impacted by the recent SUPCO ruling in the Wyeth v. Levine case? Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Wyeth's attorney, Bert W. Rein, founding partner of the law firm, Wiley Rein LLP, to discuss the wide-reaching impact this ruling will have for many years to come.
California Supreme Court Finally Clarifies Insurance Pollution Exclusion ProvisionsThe California Supreme Court issued its long-awaited decision unanimously interpreting pollution exclusion provisions in comprehensive general liability insurance policies. The Court defined the meaning of the policy term "sudden and accidental" for discharges on land and air and the "absolute pollution exclusion," which in three out of the four insurance policies at issue applied to discharges into watercourses. The Court went on to describe how to allocate the burden of proof between covered and non-covered claims in the case entitled: State of California v. Allstate Insurance Co.
Let's do a little bit to set the stage first. The State of California made a $500 million claim for contamination of Pyrite Creek in Riverside County against four insurers: Allstate, Century Indemnity, Columbia Casualty and Westport Insurance. The contamination was caused by several factors: gradual leaks in the bed of a canyon dammed by the State in the 50's to hold some 30 million gallons of industrial waste and overflows from holding ponds into the Creek caused by heavy rains and emergency releases of one million gallons into the Creek to prevent the loss of the entire containment (known as the Stringfellow Acid Pits) into the Creek.
So to tally the score, it was a split decision. The trial court decided in favor of the insurers on the State's claim. The appellate court reversed. The Supreme Court went down the middle, holding partially for the insurers and partially for the State. Here's the scorecard:
The "Relevant Discharge"
But in other cases, it may be when the insured deposits pollutants directly onto land or water without any effort to contain them, then the initial deposit may be considered the discharge. The Court held that there may even be two different discharges that trigger coverage: both the initial deposit and then the subsequent escape of the contamination.
Just to confuse things that much more.
The Court found in favor of the insurers who contended the flood waters flowed directly from the site into a creek rather than onto surrounding land. The Court held, however, that the insurer has the burden of showing that the overflow was confined to the channel of the stream (even if the creek was not flowing at the time). Like most other California watercourses, Pyrite Creek is mostly a dry bed.
Had the state followed this recommendation, the subsequent releases would not have occurred.
The Court rejected the insurers' arguments that these controlled discharges were not "accidental," holding instead that liability policies cover damages resulting from an act undertaken to prevent a covered source of injury from occurring, even if that act would otherwise not be covered.
The Court found that the intentional mitigation to avoid a covered event makes sense as a matter of causation, is consistent with the reasonable expectations of the insured, and does not harm the insurers since they would be responsible for greater liability had the measures not been taken.
Due to the threatened "sudden and accidental" release of waste from the site, the State's intentional releases prevented a greater accidental release and consequently the State's claims were not barred by the qualified pollution exclusion. The Court further held that the State's awareness of the risk of the event is not equivalent to its knowing that the damage was "substantially certain or highly likely" to occur. Showing that the State "should have known" that the damage would occur was insufficient. The Court held there was an issue of fact concerning the level of the State's knowledge that will require a further trial.
We haven't seen the last of this case yet.
Proximate and Concurrent Causation
Go ahead. You try to break that long sentence up into two.
Once the State proves that the damage from concurrent causes ("sudden and accidental" events and subsurface leakage) was indivisible, the burden shifts to the insurer to prove otherwise. The Court expressly disapproved Golden Eagle Refinery Co. v. Associated Internat. Ins. Co., 85 Cal.App.4th 1300 (2001), and Lockheed Martin Corp. v. Continental Ins. Co., 134 Cal.App.4th 187 (2005), to the extent they held the insured has the burden of showing "how much of an indivisible amount of damages resulted from covered causes."
When an insured proves that multiple acts or events caused a single injury or an indivisible amount of property damage and one or more of the covered causes would have rendered the insured liable for all of the damages, the insured's inability to allocate damages does not excuse the insurer from its duty to indemnify it for all of the damage. The Court noted that its decision does not extend to indemnity situations where the insured can only speculate that polluting events were "sudden and accidental" or where "sudden and accidental" events contributed only trivially to the property damage. The "sudden and accidental" events must have caused an "appreciable amount" of damage.
Sure, it's a torturous decision to follow, but let's put it this way: if one covered event contributes contamination to an uncovered event, the uncovered event doesn't matter - the whole thing is covered. Maybe. That's the lawyer in me talking, though.
Otherwise, you can read the entire 37 pages of the opinion.
MIPTC gives a big hat tip to my partner at Sedgwick, Laura Goodman, for providing this analysis. I added a few facts and remarks.
Orange County's Celtic Bar Association Makes It Into A Court Opinion
Bloggers eagerly scour court opinions to see whether an appellate judge has included their blog in the opinion, and several have notably been included. MIPTC hasn't tracked court opinions so much, but I did stumble across this court opinion, which references an association I helped found: the Celtic Bar Association.
The Celtic Bar Association meets just after work at 5:30 p.m. on the third Tuesday of each month at Muldoon's Irish Pub in Newport Beach, owned by lawyer Ron Schwartz. His law office is above the pub, likely more famous for its St. Patrick Day celebration and its steady stream of Irish performers.
The Celtic Bar Association got its start fittingly in a bar in Belize on a Hispanic Bar Association trip. Co-founders Scott Well and I were sitting having a drink. We were grousing that there were many minority bar associations like the HBA, MALDEF, the Asian Bar Association, the Italian Bar Association, and ... and ... and ... well - you get the idea. We complained that the Celts should have our own bar association but that there wasn't anyone with enough interest to start one up. Joe Chariez joined us and listened to the tail end of our woes, but surely got the gist of our motivations.
Sure enough when we got back from the trip, Scott and I did nothing about starting up a group of Celts. Joe Chairez, on the other hand, was full of vigor having just finished a term as the president of the HBA. He set up a meeting of Celtic attorneys at Ron's office, with plans to go downstairs after the formative meeting.
True enough, several of us showed up for the first organizational meeting but none were interested in actually having a meeting. We just wanted to go downstairs and talk. It didn't hurt that Ron's pub also served drinks.
Twenty-five or so Irish, English, Welsh, European and Spanish attorneys signed on to found the Celtic Bar Association. We've now got a rather sizeable membership, which includes many judges and arbitrators. We've taken trips to England, Ireland, Scotland, Wales, Spain and big plans to travel to many other European countries. In fact, regular readers will remember my Scotland travelogue series, which got many compliments and several to take the trip themselves.
So when I read this recent opinion where the losing attorney challenged the bias of Celtic Bar Association member Robert Thomas, who is now a neutral with the Orange County office of JAMS, I was intrigued. The cast of characters in the opinion feature many other members of the Celtic Bar Association.
The Appellate Court ruled that Judge Thomas correctly refused to recuse himself from an arbitration just because both he had run into one of the attorneys in the case on the Scotland trip and at a Celtic Bar Association. So have about 65 other Orange County attorneys on the Scotland trip and about 125 attorneys at various Celtic Bar Association meetings.
Bar trips allow attorneys to get to know one another. They also allow attorneys to get to know judges in a more informal setting. But they're merely social events, where niceties are passed between professionals. In fact I know Judge Thomas from the Scotland trip and the Celtic Bar Association meetings, as well as having participated with him on an MCLE panel. But not so much that I'd even dream that he'd swing a decision in my favor if I appeared in front of him - especially if another member of the Celtic Bar Association were on the other side of the case - or not.
Sure, Judge Thomas and I would make the required disclosures that we are social acquaintances, but there's really nothing more to it than that, much in the same way that there was no reason for Judge Thomas to recuse himself in the case underlying the opinion.
And now that you've read the opinion, those long-haired shaggy cows standing knee-deep in a field behind the Colloden House are called Highland Cows, pronounced "Hee-lin coos" if you're from Scotland.
I was there too. And by the way, if you're in Newport Beach on the Third Tuesday of the month, stop by. I'll buy you a drink.
Librarians And Harry Potter: Not All Are Happy With The Occult
Harry Potter presents a multi-faceted approach to literature. Many people view the interest in the books as a means to get children to read. Others have cataloged the entire series and documented it. Still others view it as an deep-seated attempt to corrupt society and perhaps children.
That last part comes from the Southern Baptists. My mother was one, and she raised me to believe in the Bible. She married a minister, and I was/am a preacher's kid, through and through.
Even so, I've read all seven Harry Potter books. All were enjoyable and the seventh one got me to go back and read the entire set, plus watch all the movies. Do I think it worships the occult? Well, in a word, no. But it has many occult aspects to it, and that's simply part of the literature.
Just like Tom Clancy's books have many militaristic aspects, but that doesn't make Tom or his readers into soldiers or for that matter occult worshipers. See what I mean?
Apparently Deborah Smith didn't think so. She was a librarian (well, actually a part-time Assistant Librarian II) in the Poplar Bluff Missouri library (where else?) that wanted to hold a Harry Potter night to promote the release of Harry Potter and the Deathly Hallows.
It does have a bit of an occult feel to it, doesn't it?
The librarians were to dress up as witches and warlocks (a la the novel), which offended Ms. Smith's legitimate religious beliefs. Ms. Smith objected and said her legitimate religious beliefs prohibited her from participating in the event. Her supervisor at first told her that she didn't have to participate, but after he talked with his supervisor, presumably a full-time Librarian I, he then told her she had to did have to show up that night.
Even more of an occult feel, if you ask me.
The Head Librarian said she could participate behind-the-scenes so her church members would not know that she violated her religious beliefs. She refused to show up that night and got suspended for ten days without pay.
In the American way, she sued.
Before the matter could get to trial, they settled. While the settlement surely avoided a lot of attorneys fees and costs, as well as a potentially seminal decision that would have set back American jurisprudence at least 100 years (I'm kidding about the seminal decision part), the rest of us are left hanging.
What happened? Will she have to participate in the next Harry Potter night? Did she get her back pay? Did the library apologize? Did her church support her? Is there a conflict between religion and Harry Potter?
We'll never know. She settled, and nobody told.
Lawyer 2 Lawyer Internet Radio Covers Paralegals and the EconomyLayoffs at law firms and the recession seem to be putting a heavier load on paralegals to assist busy attorneys. Many paralegals are taking on huge projects, while working long hours and burning the midnight oil. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome guests, Linda J. Wolf, ACP the current President of NALA and Christine Parizo a PACE Registered Paralegal to discuss the work of a paralegal through the present economic crisis.
New Gizmo Gadget Review: Verizon's Network Extender
Like many others who have cell phone service, MIPTC's cell phone does not work inside my house. There are conspiracy theorists who posit the cell phone companies plan it that way so they can get us to buy land line services, too, but I have a different theory: NIMBY - not in my backyard.
We all want cell phone service in our homes and small businesses, but we're not willing to look at the cell phone tower that gets us that coverage. Indeed, here in Orange County (or "The OC" to just about everyone else who doesn't live here and thinks that we all have plastic surgery and all the women here look and act like The Real Housewives of Orange County). One aspect of that television show is true: it is a resort area and looks like one, so inevitably there are few cell phone towers.
Like Coto de Caza, the cause celebre of The OC, another ritzy area known as Newport Coast is notorious for poor cell phone service, as are many other areas around the county, including my home, which is not in any ritzy area. But no longer.
Verizon just came out with its Network Extender, which essentially is a cell phone tower in your home or small business in a small black box no bigger than a netbook computer with a small, three-inch high GPS antenna attached to it. It plugs into your house's broadband Internet connection and viola, you have cell phone service where you didn't have it before.
It has an operating area just under a 40 foot circumference, and you must come within 15 feet of it to first connect to it. Plus, you can specify which cell phones will have access to your router, so your neighbors won't be able to bog down your in-house network. Personal accounts can make those settings online, business accounts have to call in to specify the cell phones that have access. I set mine to a closed network, with only two cell phones allowed to attach to it, although you can specify up to 50. There is one channel reserved for emergency 911 calls that any cell phone from any carrier can access.
It's a slightly expensive ($250) nifty little device that solved a nagging problem for me, one that I highly recommend. You can ask for and receive a discount from the list price. Sprint has a similar device, but unlike Verizon, charges a monthly fee to use that company's extender. Verizon's device is a one-time cost and doesn't add to your monthly bill, with the exception that you'll probably make and receive more calls from your home.
Lawyer 2 Lawyer Internet Radio Talks About Life After LawFreezing salaries and even layoffs are a couple ways firms are dealing with their present economic situation, while law students look ahead to a potentially grim future. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome William D. Henderson, Associate Professor of Law at Indiana University Maurer School of Law and Attorney Paul J. Semenza, a Trial Attorney, formerly with the Law Office of Arthur E. Levine, to discuss life after lawyering. They will hear a real life story from a trial attorney who has experienced the ups and downs after a layoff and look at the present economy and its impact on law firms, large & small.