PK Law Member Patricia McHugh Lambert speaking at Harmonie Winter Conference

PK Law Member, Patricia McHugh-Lambert will be speaking at the Harmonie Winter Conference on January 29, 2016.  The topic of Ms. Lambert’s presentation is tips for dealing with unreliable witnesses at depositions and trial.   

PK Law is a proud and active member of the Harmonie Group.  The Harmonie Group is an invitation only national network of elite and vetted firms providing defense services to corporations, TPA’s, insurance companies, RRG’s and captives.  Each firm must meet the group’s high standards, ethics and values before being invited to join.  

PK Law’s 2016 Super Lawyers and Rising Stars

Pessin Katz Law, P.A. (PK Law) is honored to have twenty- five of its attorneys selected for inclusion in Super Lawyers Magazine’s top attorneys in Maryland for 2016.

PK Law’s 2016 Super Lawyers are

  • Steve A. Allen – Business Litigation
  • James R. Benjamin, Jr. – Environmental Litigation
  • Robert S. Campbell – Business Litigation
  • Joan Cerniglia-Lowensen Personal Injury – Medical Malpractice – Defense
  • Gregory K. Kirby – Personal Injury – Medical Malpractice – Defense
  • Thomas D. Kohn – Business Litigation, Business/Corporate
  • Patricia McHugh Lambert – Business Litigation
  • Michael E. Leaf – Real Estate
  • Natalie C. Magdeburger – Personal Injury – Medical Malpractice – Defense
  • Mairi Pat Maguire – Personal Injury – Medical Malpractice – Defense
  • Mark D. Maneche – Business Litigation
  • Edmund J. O’Meally – Construction Litigation
  • Lisa Y. Settles – Employment & Labor
  • Leslie R. Stellman – Schools & Education, Employment & Labor
  • Catherine W. Steiner – Personal Injury – Medical Malpractice, Health Care
  • Thomas Zagami – Business Litigation
  • Drake Zaharris – Business Litigation, Business/Corporate, Construction Litigation

 

PK Law’s 2016 Rising Stars are

  • David A. Burkhouse – Employment & Labor
  • Brian M. Cathell – Personal Injury – Medical Malpractice – Defense
  • Chantelle M. Custodio – Personal Injury – Medical Malpractice – Defense
  • Cheryl A. Jones – Estate Planning & Probate
  • Talley H-S Kovacs – General Litigation
  • Kimberly Longford – Personal Injury – Medical Malpractice – Defense
  • Kimberly H. Neal – Business Litigation
  • Andrew G. Scott – Schools & Education
  • Aiden F. Smith – Criminal Defense

Only 5 percent of the lawyers in Maryland are identified as Super Lawyers by their peers and through the independent research of Law & Politics. PK Law has been honored over the past years to have numerous members and associates named as Super Lawyers and Rising Stars.

We congratulate these attorneys as this shows their dedication to PK Law clients and professionalism within the legal field.

PK Law Receives Baltimore Sun Top Workplaces Honor for 2015

Top10WorkPlaces

For the fourth year in a row, PK Law was selected one of the Baltimore Sun’s Top 100 Workplaces.  

The selection was based on information gathered from surveys taken by the firm’s employees.  The survey solicited information about work/life balance, managers, pay and benefits, where the company is headed, execution, connection and engagement.  PK Law was among an impressive group of companies and was one of only three law firm’s among the 100 workplaces for 2015.

Talley’s Insurance Tip of the Month

By:  Talley H-S Kovacs, Esquire                                         tkovacs@pklaw.com

Does your business provide a service and operate pursuant to contracts with vendors or sub-contractors? 

Talley’s tip: If so, take a second or third look at your contracts to make sure that you are getting the appropriate level of indemnity from your business partners for liability that might arise out of your joint endeavors.

For example, imagine a company that delivers mattresses for a national retailer and who sub-contracts with trucking companies to physically retrieve the mattress from a warehouse and deliver to a consumer at their home. You and your employees might play no part in the physical delivery of the mattress, or even the installation of the mattress, but be assured, you will be in the chain of named defendants in a lawsuit should something go awry. In the event that the delivery company causes damage to the house on the way in or out or someone is injured because the installation was not done properly, your company- as the middle man- might not be ultimately liable, but you will be part of the claim, if not the lawsuit.

So, what should you do?

First, look at your contracts. There should be a discrete provision called “Indemnity.” That clause should state explicitly, in plain language if possible, that your company is not liable for the acts or omissions of the other party to the contract. Both sides of the contract should be defined broadly to include employees, agents, officers, members, etc. You want to cut off the possibility that someone else’s negligence while executing work for you or on your company’s behalf does not come back the chain and stick to you.

Second, look at your contracts. There should be a discrete provision called “Insurance.” That clause should, again explicitly and in plain language, state that the vendor or sub-contractor working with you has commercially acceptable levels of insurance and that your company is explicitly named as an “Additional Insured” on their policies where appropriate. There are a couple of ways to go about this, and a lawyer can help.

Third, look at your contracts. If the words “Indemnity” and “Additional Insured” do not make an appearance, it’s time to revisit your exposure to risks in your business and determine whether you could be doing more to protect your company.

Tally H-S Kovacs is a member of PK Law’s General Litigation Group.  Her practice currently focuses on complex civil litigation, insurance coverage disputes, and business litigation.  Ms. Kovacs worked in public policy, homeland security, and public health, and clerked for the Honorable Clayton Greene, Jr. on the Maryland Court of Appeals prior to entering private practice with PK Law, PA.  Ms. Kovacs can be reached attkovacs@pklaw.com or 410-339-5798.

 

This information is provided for general information only.  None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.

What is the Meaning of…..

In Rigby v Allstate Indemnity Company, (Maryland Court of Special Appeals, No. 0263, September 30, 2015, Krauser, C.J.) the intermediate appellate court (the “Court”) was called upon to decide a case of first impression in Maryland.  The Court held that under the facts of the case a person who had caused an automobile accident was not a “dependent person, under your care” so as to render that person an insured under a personal umbrella insurance policy.  The result was that the accident was not a “covered occurrence” under the terms of the policy.

Rigby, and others, were injured when a vehicle operated by Robert Vanderford and owned by Lawrence Archembeault, with whom Vanderford was residing, and whose “umbrella” insurance policy with Allstate was the subject of the appeal, collided with Rigby’s police cruiser on a road shoulder, injuring her, another person, and a tow truck operator.

Appellants asserted that Vanderford’s youth, the length of his residency with Archembeault, as well as his past and present economic reliance on and close personal relationship with him, made Vanderford a “dependent person” and in the care of Archembeault at the time of the accident and, therefore, an “insured person” as defined by the Allstate policy.

Archembeault held an automobile insurance policy that provided up to $500,000 of liability coverage and an “umbrella” policy with coverage up to $5,000,000 for negligence.  The umbrella policy, the focus of the appeal, defined an “insured person” to include “any dependent person in your care, if that person is a resident of your household.”  Rigby sought a ruling that the umbrella policy’s coverage applied to the accident because the automobile policy’s coverage was insufficient to provide for the victims’ damages.  She lost her arguments.

The facts of the case reflected that for a three year period Vanderford lived principally at the residence of Archembeault together with his domestic partner and Archembeault’s mother.  However, the continuity of that residency was interrupted on three separate occasions when Vanderford moved out.

Fourteen months before the accident, Vanderford obtained full-time employment and thereafter agreed to pay a rent of $600 per month toward the residence. Prior to that, he lived at the residence rent free.  He then also assumed responsibility for the payment of such personal expenses as the cost of his telephone, food, and clothing (which had previously been paid by Archembeault).  Vanderford paid for fuel for the vehicle which Archembeault allowed him to use and which was involved in the accident.

According to the Court, the facts tended to indicate the existence of “…the semblance of a familial relationship…”.  However,  Archembeault “…never claimed Vanderford as a dependent on his tax return, never gave Vanderford any money, credit cards, or an ‘allowance,’ nor paid for Vanderford’s medical care or designated him as a beneficiary of his health insurance policy. Moreover, [Archembeault] admitted that he did not exercise any control over Vanderford’s comings and goings. In fact, Vanderford was, in [Archembeault’s] words, ‘free to leave at any time he cho[se]’ and did move out on three separate occasions.”

In discussing rules of construction of the wording relevant to the case, the Court noted that:  “…an insurance policy, like any contract, must be construed ‘in its entirety,’ and, ‘if reasonably possible,’ [a court must]… give effect ‘to each clause,’ ‘avoiding an interpretation which casts out or disregards a meaningful part of the language of the writing unless no other course can be sensibly and reasonably followed.”  Any ambiguity in the terms of the policy are to be liberally construed in favor of the insured and against the insurer as drafter of the instrument.  Furthermore, a “…policy term is considered ‘ambiguous’ if, to a reasonably prudent person, the term is susceptible to more than one meaning.”

The policy in Rigby defined an “insured person” as: “…c) any dependent person in your care, if that person is a resident of your household.”  The Court stated that the terms “dependent” and “in the care of” “…are not synonymous though they arguably partially overlap.”

In light of the fact that the issues before the Court had not been previously addressed in Maryland, it turned to two out-of-state opinions for guidance.  In Girrens v. Farm Bureau Mutual Insurance Company, 715 P.2d 389 (Kan. 1986), the Kansas Supreme Court addressed the issue of the interpretation of the term “dependent person” in an automobile insurance policy.  In Henderson v. State Farm Fire and Casualty Company, 596 N.W.2d 190 (Mich. 1999), the Michigan Supreme Court considered the issue of how to construe the term “in the care of” in a homeowner’s insurance policy.

The Kansas Supreme Court held that,

“…in ‘the context used in the present policy,’ the standard articulated by the trial court, that ‘a dependent person’ requires a ‘substantial contribution’ to ‘provide the necessities of life,’ was not ‘unreasonable’ and that, given that [the potential insured] ‘was employed full time as a machinist with supplemental income provided from farming,’ the mere fact that he still lived in his parents’ home did not mean that he was a ‘dependent person.’”

Consequently that individual was not a “dependent” under the policy and coverage was properly denied.

In Rigby, the Court stated that merely because the term “dependent”  “…has several slightly different dictionary definitions that “…does not render that term ambiguous.”  Consequently, the Court stated that “…Vanderford’s circumstances lead us to conclude that the circuit court did not err in finding that Vanderford was not “dependent” upon [Archembeault] to the extent that it rendered [the former] a “dependent person” under the Allstate policy at issue.”

The Court also rejected the claim that the term “in the care of” is ambiguous.  In so doing, it applied factors recited in Henderson in construing the terms of a homeowner’s insurance policy.  According to the Court, seven of the eight factors weighed against a finding that Vanderford was, at the time of the accident, “in the care of” Archembeault, and, therefore, an insured under Archembeault’s umbrella policy as:

“(1) [Archembeault] had no legal responsibility to care for Vanderford; (3) [Archembeault] had no supervisory or disciplinary responsibility over Vanderford; (4) [Archembeault] was not providing “substantial essential financial support” to Vanderford (or, at least, it was not clearly erroneous for the court below to so conclude); (5) Vanderford’s living arrangement was temporary (or, at least, it was not clearly erroneous for the court below to so conclude); (6) Vanderford was a twenty-two-year-old emancipated adult; (7) Vanderford was in good health; and (8) Vanderford was working full-time and earning $26,000 per year. Only the second of the eight Henderson factors, that is, that there was “some form of dependency,” tilts in favor of appellants’ position, as [Archembeault] had, in fact, allowed Vanderford to live in his home for a modest rent and to drive his car to work. Thus, there was ample evidence to support the circuit court’s conclusion that Vanderford was not “in the care of” [Archembeault].”

PK Law’s Insurance Team provides its insurance clients with comprehensive guidance in the constantly changing world of insurance.  They help clients anticipate and deal effectively with change, find solutions, and achieve positive results. 

  • Transactional: Acquisitions, Compliance, Liquidation, Product Development, Licensing, Rate and Forms, Agent/Broker Contracts, Managing General Agreements, Captive Insurance, Policy Drafting
  • Regulatory: Investigations, Enforcement, Compliance, Market Conduct Exams, Form Filings, Rating Issues, Privacy, Coverage Opinions and Legal Analysis, Government Relations, Freedom of Information Act (FOIA) Requests
  • Litigation: Administrative Proceedings, Agent/Broker Disputes, Bad Faith, Fraud and Unfair Business Practices, Class Actions, Coverage Disputes/Declaratory Judgment Actions, ERISA and Employment Matters, Insurance Defense, Mediations, Professional Negligence Case Representation, Environmental Claims and Insurance Producer Liability Litigation

 

This information is provided for general information only.  None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.