Independent Insurance Agents: Order Takers or Fiduciaries?
Article co-written by C. Thomas Ludden, litigation Partner at the Lipson Neilson law firm, and James R. Redeker, claims manager in the Insurance Agent’s E&O Program at SwissRe Corporate Solutions.
An insured has a significant loss, but discovers that the insurance company will not cover the loss under the insurance policy that had been purchased. One of the potential options that an insured may consider pursuing is a claim against the insurance agent who was involved. Whether that claim is ultimately successful may depend upon whether the agent is considered a fiduciary of the insured or the agent has assumed duties in addition to the duty of ordinary care.
The answer to these questions depends upon:
1. Whether the agent is an independent or captive agent;
2. What duties are normally imposed by the applicable jurisdiction;
3. Whether the agent and the customer have agreed that the agent would perform additional duties;
4. Whether the agent has performed acts or omissions that trigger additional duties; and
5. Whether unique circumstances exist that will impose additional duties upon the agent…Click here for full article.
Staying Out of CFPB Jail (Part 1)
Article written by Dax Watson is the first of a three part series on the enforcement powers of the Consumer Financial Protection Bureau (CFPB). Most of us have heard of the CFPB and that it is not only coming to town…it is already here. In turn, now is the time for all professionals in the real estate field to learn how to stay out of CFPB jail! So, what should real estate licensees be mindful of?…click here for article
How Do I Stay Out of the Lawyer’s Office?
Article written by Dax Watson provides tips for Real Estate Agents. This article is on page 3 of the December 2015 issue of WestWords, published by WestUSA Realty. Dax Watson is the managing partner of the firm’s Phoenix office. Dax focuses his practice in commercial litigation with an emphasis in real estate matters and professional liability defense. In his capacity as a defense attorney, he defends professionals in the fields of real estate, law, accounting, architecture, and engineering.
Can Insurance Defense Counsel ‘Serve Two Masters’?
Co-authored by Jessica A. Green along with attorney Joseph Hainline, article published in the June 29, 2015 issue of The Whisper, the newsletter of the DRI’s young lawyers committee. Jessica is an attorney in the firm’s Las Vegas office. Her practice focuses on professional liability defense, employment law, bad faith insurance defense, and commercial litigation. She is the Secretary of the Nevada CLM Chapter, and a DRI Professional Liability Young Lawyer Liaison.
The Future of Senior Housing.By Steven H. Malach, article published by the Open Retirement organization (2015).Mr. Malach heads the firm’s Estate Planning/Probate practice group, which also operates under the name Center for Estate Planning. He is a member of the National Academy of Elder Law Attorneys (NAELA).
Understanding a Child’s Right to Special Education.By Mary T. Schmitt Smith, article published by The Special Needs Alliance (2014)Mary is Michigan’s first Certified Elder Law Attorney and is AV-Rated by Martindale Hubbell for the past 16 years. She has served on the Board of Directors of the National Academy of Elder Law Attorneys (NAELA) and is a Founding Member of the Special Needs Alliance, a national network of lawyers dedicated to Disability and Public Benefits Law..
A Road Map to Attorney Fees in Domestic Relations Actions.By Sandra D. Glazier, article published in the Michigan Family Law Journal (2014).With more than 33 years of experience, Sandra has handled a multitude of complex cases. In the probate litigation arena, Glazier has represented parties in some of the largest estates subjected to litigation in Michigan. She is the Chair of the Oakland County Bar Association’s Probate Committee for 2015-2016.
When Is a Trustee Not a Trustee (in the Context of Real Estate Businesses Held in Trust, for Purposes of the Net Investment Income Tax)?By Sandra D. Glazier, article published in Bloomberg BNA’s Tax and Accounting News and Analysis (2014).
Recent Nevada Supreme Court Advance Option examines the statute of limitations discovery rule applicable to legal malpractice actions.Moon v. McDonald Carano & Wilson, LLP 129 Nev., Advance Opinion 56 (August 1, 2013)
By Joseph P. Garin and Jessica A. Green Allowing varying accrual dates for litigation and transactional malpractice claims undermines the discovery rule. Sierra International, Inc. (“Sierra”) entered into a $1.4 million promissory note with Appellant Moon (“Moon”). Sierra eventually defaulted on the promissory note and filed a Chapter 7 voluntary petition in Bankruptcy Court in 2001. Moon hired McDonald Carano Wilson, LLP (“MCW”) to represent their interests in Sierra’s bankruptcy action. Sierra’s bankruptcy action concluded in 2008.
“Business Enterprise Exclusion” Defeats Coverage Where Entity Claiming Legal Malpractice was Managed and 27% Owned by Partners of Law Firm Accused of Malpractice Am. Guarantee & Liab. Ins. Co. v. Flangas McMillan Law Group, Inc., 2:11-CV-188-KJD-RJJ, 2012 WL 628511 (D. Nev. Feb. 24, 2012) By Joseph P. Garin A real estate company asserted claims for legal malpractice against an insured law firm. The real estate company was managed by 2 attorneys in the insured law firm who also owned a combined 27% membership interest in the real estate company.
Contribution: A New Remedy for Entireties Property?By Sandra D. Glazier Tkachik v Mandeville,decided by the Michigan Supreme Court in July, 2010, appears to be yet another example of “bad facts making bad law”. In Tkachik, the parties held interests in two separate unrelated properties as tenants by the entireties. The properties statutorily passed to the husband upon the wife’s death, outside of probate (and by operation of law), as the surviving owner of the properties, subject only to the joint obligations secured against such properties.