Attorney David Markman Joins Lipson Neilson’s Las Vegas Office

markman-001-web-resAttorney David Markman has joined the firm’s Las Vegas office. David’s practice focuses primarily in the areas of insurance defense, real estate litigation, construction law, and general liability defense. He is admitted to practice in the State of Nevada, and the United States District Court for the District of Nevada.

David received a degree in finance from Michigan State University, and a J.D. from William S. Boyd School of Law. During law school, David externed for the Honorable Douglas E. Smith, Eighth Judicial District Court and for the Las Vegas City Attorney’s Office.

About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Las Vegas, Phoenix, and Bloomfield Hills. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients in Nevada, across the USA and around the world

Independent Insurance Agents: Order Takers or Fiduciaries?

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.

Thomas Ludden and Karen Smyth Win Landmark Case in Michigan Supreme Court

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Karen Smyth

C. Thomas Ludden

C. Thomas Ludden

On July 22, 2015, the Michigan Supreme Court reversed the Court of Appeals and reinstated the decision by the Oakland Circuit Court to grant summary disposition in favor of Lipson Neilson’s client in the case Tyra v Organ Procurement Agency of Michigan (Docket No. 148079). This medical malpractice case decision will affect how medical malpractice cases are handled in Michigan.

Lipson Neilson attorneys Thomas Ludden and Karen Smyth successfully argued, on behalf of the Defendants-Appellants in Tyra, that the Michigan Supreme Court should find that the failure of a plaintiff to abide by the statutorily mandated waiting period prevents them from commencing a medical malpractice lawsuit. As a result, the Supreme Court held that all of the claims by the plaintiff are barred by the statute of limitations.

To learn more, please contact Thomas Ludden at phone 248-593-5000, or email at tludden@lipsonneilson.com.

Jessica Green on Panel of Experts Discussing “Errors & Omissions Claims Trends” at ExecuSummit

Jessica Green web resJessica Green was featured on a panel of industry experts discussing “Errors & Omissions Claims Trends” at the ninth annual Errors & Omissions (E&O) Insurance ExecuSummit held in Uncasville, CT during June, 2015. This conference brings together legal and insurance industry professionals from across the country to discuss emerging issues in this very specialized area of insurance, and law.

Jessica has defended many lawyers and law firms throughout the country during her career and is recognized as an emerging leader in Errors and Omissions (E&O), Employment, and Insurance Coverage law. For the second year in a row, Thompson Reuters, the global leader in legal publications, has recognized Ms. Green as a 2015 Rising Star in her field. She is a national liaison for the Defense Research Institute Lawyers’ Professionalism and Ethics Committee. To learn more please call Jessica at 702-382-1500 or email to jgreen@lipsonneilson.com

Joe Garin Named to Nevada’s 2015 Legal Elite List

Joseph Garin high resFor the second year in a row, Joe Garin has been named one of Nevada’s Legal Elite. This list of Nevada’s top attorneys, as chosen by their peers, is published by Nevada Business Magazine and includes only the top 300 attorneys out of the 8,680 active members of the Nevada State Bar Association. Joe is the Managing Partner of the firm’s Las Vegas office.

In addition to being one of Nevada’s Legal Elite, Joe is recognized as a national leader in Professional Liability Law, and Insurance Litigation & Litigation Management. He has defended more than 400 lawyers and law firms in Nevada, Colorado, Michigan and Illinois during his career. He is a featured speaker at continuing education conferences in Nevada and across the USA, and he annually teaches a continuing legal education seminar, State of the Law – Legal Malpractice, in cooperation with various local bar associations.

Nevada Supreme Court has modified the privity requirement established in Five Star Capital Corp. v. Rudy, to incorporate the principles of nonmutual claim preclusion.

Weddell vs. Sharp, et al., 131 Nev. Adv. Op. 28 (May 28, 2015)
By Joseph P. Garin, Lipson Neilson Cole Seltzer & Garin, P.C., Las Vegas, NV Joseph Garin high res

Business partners, Appellant Rolland Weddell and nonparty Michael Stewart, submitted their commercial dispute to a panel of three attorney mediators, including Defendant attorney Sharp. Following a decision in his favor, Stewart filed lawsuit against Weddell for declaratory judgment. Weddell later confessed a judgment, acknowledged that mediators’ decision was valid and enforceable against him in its entirety, and stipulated to dismiss his counterclaim.

More than two years later, Appellant filed suit against the attorney mediators, alleging collusion with Stewart in the dispute resolution process. The district court granted respondents’ motion to dismiss on ground of claim preclusion, finding the three factors under Five Star Capital Corp. v. Ruby,1 had been satisfied: “(1) the parties or their privies are the same, (2) the final judgment is valid, and (3) the subsequent action is based on the same claim or any part of them that were or could have been brought in the first case.”

On appeal, the Nevada Supreme Court found there was erroneous finding of privity between respondents and Stewart, as their relationship did not fall within Five Star’s definition of privity and the “adequate representation” analysis. The Court concluded that Five Star‘s test was not satisfied. However, the Court that Five Star‘s test for claim preclusion does not fully cover the important principles of finality and judicial economy that it intended to capture.

The Court considered the concept of “nonmutual” claim preclusion whereby a plaintiff’s second suit against a new party should be precluded “if the new party can show good reasons why he should have been joined in the first action and the [plaintiff] cannot show any good reasons to justify a second chance”.2 Here, Appellant failed to provide a “good reason” for not having joined the attorney mediators earlier and the Court affirmed the district court’s dismissal on the basis of claim preclusion.

The Court’s decision promotes finality of litigation and judicial economy. Under Weddell, a defendant may validly use claim preclusion as a defense by demonstrating that (1) there has been a valid, final judgment in a previous action; (2) the subsequent action is based on the same claims or any part of them that were or could have been brought in the first action; and (3) privity exists between the new defendant and the previous defendant or the defendant can demonstrate that he or she should have been included as a defendant in the earlier suit and the plaintiff fails to provide a “good reason” for failing to include the new defendant in the previous action.

Practice Note: Defendants may now use non-mutual claim preclusion as a defense to a complaint even if he was not a party or in privity with a defendant in an earlier action brought by plaintiff based on the same type of claims.

1 24 Nev. 1048, 194 P.3d 709 (2008)

2 8A Charles Alan Wright, et al., Federal Practice and Procedure §4464.1 (2nd ed.2002); Airframe Systems, Inc. v. Raytheon Co., 601 F.3d 9 (1st Cir. 2010)

here.

Sandra D. Glazier has co-authored a paper on Undue Influence

Sandra D. Glazier, a partner at Lipson/Neilson, Sandra_Glazier_001_full_crop hi resolution photo 2-3-15 (BH548194xAF0CA), entitled What Every Estate Planner Should Know about Undue Influence: Recognizing It, Insulating/Planning Against It … and Litigating It.  Sandra co-presented the paper in NYC to Bloomberg’s BNA Estate and Gift Tax Advisory Board on March 19, 2015 and at the ABA’s 2015 Estate Planning and Real Property Spring Symposia in Washington, D.C. on April 30, 2015.  In March and April 2015 Sandra was also a panelist on two separate webinars produced for Michigan’s Institute for Continuing Legal Education which focused on Undue Influence; one related to litigating issues related to undue influence with the second focused on estate planning considerations.  BBNA recently published the paper “What Every Estate Planner Should Know about Undue Influence: Recognizing It, Insulating/Planning Against It … and Litigating It” as a Tax Management Memorandum, at Bloomberg BNA, Vol. 56, No. 11, June 1, 2015,  at pp. 185-209.