Featured Articles

by Michael W. Mitchell, Smith Anderson, LLP

What is easier to do in Alaska, Arizona, California, Hawaii, Idaho, Illinois, Indiana, Kentucky, Michigan, Montana, Nevada, Ohio, Oregon, Tennessee, Washington state, Washington, D.C., and Wisconsin than it is to do in Arkansas, Connecticut, Iowa, New York, Maryland, Minnesota, Missouri, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, Vermont, Virginia, and West Virginia? (Don't worry, this rhetorical question is safe for work!)

Plaintiffs in the former jurisdictions can sue for a data breach even if they have not suffered any actual injury. Plaintiffs in those jurisdictions need only allege that there is an increased risk of future identity theft from the data breach.

But in the latter jurisdictions, plaintiffs must go further and allege an actual injury from the breach, such as fraudulent charges on existing debit or credit card accounts or the opening of fraudulent financial accounts using the stolen personal information. Otherwise, they cannot establish "Article III standing" and the claim cannot survive a motion to dismiss.

Why does this matter? Because class action plaintiffs who can survive a motion to dismiss have much greater leverage for settlement. A class action case that cannot be dismissed prior to discovery can command some settlement value just on the discovery costs alone.

The Sixth Circuit in Galaria v. Nationwide Mutual Insurance (6th Cir. 2016), the Seventh Circuit in Remijas v. Neiman Marcus (7th Cir. 2015) and Lewert v. P.F. Chang’s China Bistro (7th Cir. 2015), the Ninth Circuit in Krottner v. Starbucks Corp.(9th Cir. 2010) and In re Zappos.com (March 2018), and the D.C. Circuit in Attias v. CareFirst (D.C. Cir. 2017), have applied the lower standard for standing on a data breach claim.

The Second Circuit in Whalen v. Michaels Stores (2d Cir. 2017), the Fourth Circuit in Beck v. McDonald (4th Cir. 2017), and the Eighth Circuit in In re SuperValu Customer Data Security Breach Litigation (8th Cir. 2017), have found that general allegations of an increased risk of identity theft from a data breach alone are not enough of an injury in fact to establish standing. These Circuits have held that plaintiffs also must allege an actual injury.

The U.S. Supreme Court seems unimpressed by this disagreement between multiple federal courts of appeal, because the Supreme Court passed on the opportunity to resolve this split in legal precedent across the country when it recently denied an appeal from the D.C. Circuit's CareFirst decision.

Side bar: The Ninth Circuit's opinion in In re Zappos.com cites to a U.S. Supreme Court decision from 1824 to reject one of Zappos' arguments. Who says old law is of no value in the world of modern technology?

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This article was originally posted by Mike Mitchell on LinkedIn

by Michael W. Mitchell, Smith Anderson LLP 

Three years ago, I co-authored a case summary (here) about a U.S. Supreme Court decision applying "ordinary principles of contract law." See M&G Polymers USA, LLC v. Tackett, 135 S.Ct. 926 (2015). I thought Tackett was worth a short article because it is unusual to see a U.S. Supreme Court case on contract law.

In Tackett, the Supreme Court vacated a Sixth Circuit decision because that court had failed to apply ordinary principles of contract law to a collective bargaining agreement. The issue in Tackett was whether the agreement, governed by The Employee Retirement Income Security Act of 1974 (ERISA), granted lifetime health benefits to employees even in the face of the agreement’s three-year term. In a prior case, International Union, et al v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983), the Sixth Circuit had adopted its “Yard-Man” inference, pursuant to which courts in the Sixth Circuit could construe the grant of health care benefits in a collective bargaining agreement as vested and interminable despite express language setting an expiration date on the entire agreement itself.

It now appears that Tackett has exposed a minor rift between the Sixth Circuit and the Supreme Court, because the Sixth Circuit would not take "no" for an answer in Tackett. Those who are familiar with how judges speak (and write) when they take a lawyer to the woodshed will recognize that same tone and frustration in the Supreme Court's February 2018 opinion in CNH Industrial Nv, et al v. Jack Reese, et al. In a per curiam opinion, the Supreme Court recognizes that it had addressed the same issues in Tackett only "[t]hree terms ago," and then the Court summarizes the case and its holding as follows:

In this case, the Sixth Circuit held that the same Yard-Man inferences it once used to presume lifetime vesting can now be used to render a collective-bargaining agreement ambiguous as a matter of law, thus allowing courts to consult extrinsic evidence about lifetime vesting. 854 F. 3d 877, 882-883 (2017). This analysis cannot be squared with Tackett. A contract is not ambiguous unless it is subject to more than one reasonable interpretation, and the Yard-Man inferences cannot generate a reasonable interpretation because they are not "ordinary principles of contract law," Tackett, supra, at ___ (slip op., at 14). Because the Sixth Circuit's analysis is "Yard-Man re-born, re-built, and re-purposed for new adventures," 854 F. 3d, at 891 (Sutton, J., dissenting), we reverse.

The Supreme Court makes a point of reminding the Sixth Circuit that no other circuit has made this same error: "[t]ellingly, no other Court of Appeals would find ambiguity in these circumstances . . . . The approach taken in these other decisions 'only underscores' how the decision below 'deviated from ordinary principles of contract law.'" Ouch.

In judge-speak for "this is not rocket science," the Supreme Court concludes its opinion by remarking that "[s]horn of Yard-Man inferences, this case is straightforward." The Court then shows the Sixth Circuit how it could have decided the case in about the length of a single paragraph. The Court's final jab notes that the Sixth Circuit continues to be unreasonable in its approach to collective bargaining agreements: "Thus, the only reasonable interpretation of the 1998 agreement is that the health care benefits expired when the collective-bargaining agreement expired in May 2004." (emphasis added)

The nugget of contract law, quoted from Tackett, is that "[w]hen the intent of the parties is unambiguously expressed in the contract, that expression controls, and the court's inquiry should proceed no further." Do not pass go. Do not collect $200!

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This article was originally posted by Mike Mitchell on LinkedIn

(Adapted from the presentation “The Future Is Now: Ethical Lawyer Advertising and Marketing” scheduled for the NCADA 2018 Winter Workshop on February 2, 2018)

by Martá P. Brown, Butler Weihmuller Katz Craig LLP

As young lawyers progress in their legal career, the emphasis on marketing begins to manifest itself. How to go about this task is not something they teach you in law school. It is never too early to begin thinking about how to best position yourself to attract clients. With today’s technology, it is easier than ever to reach potential clients, but easy is not always ethical.

Online Legal Service Providers

One innovative way to reach clients that is being hotly debated across the United States is the use of online legal service providers, specifically Avvo Legal Services (“ALS”) by Avvo, Inc. Avvo is an online legal services corporation founded in Seattle, Washington in 2006. Avvo uses publicly available information from the internet and state bar associations in order to create a listing of lawyer profiles, which are then given a rating based upon a proprietary system combined with reviews from clients and peers.

ALS is an online legal service introduced by Avvo to provide unbundled legal services to customers. Lawyers who agree to the ALS terms of service and participate in ALS are charged a percentage of the legal fee obtained from the potential client. The portion of the legal fee charged by ALS is called a “marketing fee.”

To use ALS, first the potential client selects a legal service such as advice session, document review, or document drafting, among others. The legal fee for the selected service is displayed on the website together with a description of the service. The potential client then provides a zip code. Nearby participating lawyer profiles are displayed and the potential client selects a lawyer. The potential client pays via credit card, and the selected lawyer is notified by Avvo. The lawyer calls the client over a designated line that is tracked by Avvo to confirm that the call was completed and the length of the call. Avvo deposits the participating lawyer’s ALS legal fees into a designated trust or operating account once a month. Avvo also collects its marketing fee by debiting the designated trust or operating account monthly.

Ethical Concerns

The North Carolina State Bar issued proposed 2017 Formal Ethics Opinion 6 (“FEO”) to address ALS and other online legal service providers used for the marketing of legal services. While the proposed FEO references ALS directly, it applies to all online legal service providers. The proposed FEO states that “a lawyer may participate in an online platform for finding and employing lawyers subject to certain conditions,” which is a rather succinct conclusion, although the ethical considerations are anything but.

N.C. Gen. Stat. § 84-5 prohibits the unlawful practice of law by a corporation, and lawyers are not allowed to assist a corporation or other person in the unauthorized practice of law pursuant to Rule 5.5(f) of the North Carolina Rules of Professional Conduct. The onus is on the participating lawyer to determine that Avvo is straight- forward in its advertising that it is not providing the legal services and is only marketing those services for properly licensed lawyers.

Rule 7.2(d) addresses Lawyer Referral Services. Lawyers participating in ALS must also be mindful that ALS provides an impartial list of the participating lawyers in the zip code selected by the potential client. If ALS or another online legal service recommends a particular lawyer, or restricts the list of lawyers, it would violate Rule 7.2(d). Moreover, the participating lawyer has to ensure complete independence of professional judgment and non-interference by the online legal service pursuant to Rule 1.8(f) and Rule 5.4(c). Because ALS is involved as a third-party, the participating lawyer cannot allow Avvo to compromise the lawyer’s professional relationship with the client.

From time to time, a fee dispute will arise between a lawyer and a client. Rule 1.5(a) restricts a lawyer from collecting a fee that is illegal or “clearly excessive.” Even though Avvo dictates the fee charged through ALS, the participating lawyer is tasked with certifying that the fee charged is not “clearly excessive” for services rendered. If a fee dispute does arise between the lawyer and the client using ALS, Avvo cannot be involved in the dispute.

One particularly troubling aspect of ALS is the potential issue of sharing a legal fee with a nonlawyer entity. Rule 5.4(a) states that the aim of the limitations on sharing legal fees with nonlawyers is “to protect the lawyer’s professional independence of judgment.” As long as Avvo’s “marketing fee” does not violate the restrictions on lawyer advertising under Rule 7.2(b)(1), and the lawyer can maintain “professional independence of judgment,” Rule 5.4(a) is not violated. However, as with many aspects of ALS, the burden is on the participating lawyer to comply with the Rules.

Lawyer Marketing efforts naturally consist of communicating available legal services to potential clients in an effort to attract legal employment. In doing so, a lawyer can run into trouble when marketing and advertising efforts become misleading and thereby violate Rule 7.1 regarding communications concerning a lawyer’s services. Using ALS or another online legal service is no different. When a participating lawyer creates a profile on ALS, the lawyer is responsible for monitoring the information on the website to confirm that the information presented is truthful and does not mislead potential clients.

Status of Proposed 2017 Formal Ethics Opinion 6

As of this writing, the North Carolina State Bar has not yet adopted proposed 2017 Formal Ethics Opinion 6. The proposal was sent back to subcommittee for further study. Several other state bars, including New Jersey, New York, Ohio, Pennsylvania, and South Carolina, have found that the ALS “marketing fee” constitutes fee sharing with a nonlawyer or an improper referral in violation of the Rules of Professional Conduct (ABA Journal, August 9, 2017). Those states would agree, when it comes to marketing, easy is not always ethical.

About the Author

Martá Brown is a Senior Associate with the Charlotte, North Carolina office of Butler Weihmuller Katz Craig LLP. His practice includes commercial litigation, liability defense, and first and third party insurance coverage matters. He is the current Chair of the NCADA Young Lawyers Committee.

by George Sanderson, Ellis & Winters, LLP

A court’s decision to impose liability for committing an unfair or deceptive trade practice in a particular case may have wide-ranging implications—even when the amount in dispute in the case itself is relatively minor.

Such is the case in Nash Hospitals, Inc. v. State Farm Mutual Automobile Insurance, Co. In Nash, the North Carolina Court of Appeals affirmed a judgment that State Farm committed an unfair and deceptive trade practice in its handling of the disbursement of settlement proceeds subject to a medical lien. Although the matter arose over a $757 hospital bill, how the case is resolved could have broader implications with how insurers handle personal injury settlements.

State Farm settles without notifying the hospital

Jessica Whitaker was involved in an automobile accident caused by another driver. She incurred medical expenses with Nash Hospitals and two other healthcare providers following the accident.

State Farm insured the driver responsible for Ms. Whitaker’s accident. State Farm negotiated a settlement with Ms. Whitaker to pay a substantial portion of her medical expenses. Ms. Whitaker did not involve counsel in her negotiations with State Farm.

State Farm sent a check to Ms. Whitaker for the negotiated settlement amount.  The check was jointly payable to Ms. Whitaker, Nash Hospitals, and the other medical providers. Ms. Whitaker was unable to negotiate the check herself because it was a joint check.

Pursuant to N.C. Gen. Stat. Sec. 44-50, Nash Hospitals possessed a lien on the settlement proceeds pro rata with the other lienholders. Under the statute, the lienholders’ recovery was capped at 50% of the total settlement. 

Nash Hospitals notified State Farm of its lien prior to the settlement. State Farm did not notify Nash Hospitals, however, that it had reached a settlement with Ms. Whitaker.

Nash Hospitals subsequently contacted State Farm to inquire about the status of the claim. Only then did State Farm disclose that it had reached a settlement with Ms. Whitaker and issued the joint check to her. State Farm took the position that the issuance of the joint check sufficiently protected the hospital’s lien. State Farm told the hospital to contact Ms. Whitaker directly to resolve the issue.
 
After finding out about the settlement, Nash Hospitals advised State Farm that State Farm’s failure to retain funds sufficient to satisfy its lien violated the lien statute. Nash Hospitals also pointed out that, by issuing a joint check to Ms. Whitaker that she was unable to cash, Ms. Whitaker would be forced to obtain an attorney and incur additional unnecessary expenses in order to work out how the settlements were to be divided between her and her medical providers.

Nash Hospitals sues for its shares of the settlement proceeds

State Farm did not respond to the letter. Nash Hospitals then sued State Farm for violating the medical lien statute. Nash Hospital’s complaint also included an unfair and deceptive trade practices claim.

The trial court granted summary judgment to Nash Hospitals, finding that State Farm violated both the lien statute and N.C. Gen. Stat. § 75-1.1.

State Farm appealed and the North Carolina Court of Appeals affirmed as to State Farm’s liability under both statutes. The appeals court remanded the case, however, to have the trial court recalculate the damages originally awarded.

The Court of Appeals determined that State Farm had a statutory duty to retain sufficient funds from the settlement to satisfy the lien claims and to distribute proceeds to the lienholders before disbursing to Ms. Whitaker.

With respect to the 75-1.1 claim, State Farm first challenged the hospital’s standing to bring the claim. State Farm argued that Nash Hospital lacked privity with the insurer. The appeals court rejected that argument. The court reasoned that the hospital was a third-party beneficiary of the insurance contract and was in privity with State Farm upon notifying State Farm of its asserted lien.

The court also found that State Farm’s failure to notify Nash Hospital of the settlement with Ms. Whitaker, and its direction that Nash Hospitals seek recovery from Ms. Whitaker herself, was both an unfair and a deceptive act.

The court was careful, however, to indicated that State Farm’s violation of the North Carolina medical lien statutes did not make State Farm per se liable under 75-1.1. Rather, liability stemmed from State Farm’s underlying conduct and “its failure to cure the violation absent litigation.”

The Court of Appeals directed the trial court to enter summary judgment to Nash Hospitals for a mere $971.07. Upon remand, it is possible that Nash Hospitals will also seek an attorney fee per N.C. Gen Stat. § 75-16.1.

Although it appears that State Farm will not incur a significant cash outlay in this matter, the case is likely to have broader implications to how the company handles claims settlement in order to avoid treble damages awards in the future. State Farm’s counsel indicated at argument that the insurer routinely issued joint checks and had “the . . . parties agree . . . who’s going to get what.”

Presumably because of the importance of this case to the insurer’s general practices, State Farm has sought discretionary review of the decision by the North Carolina Supreme Court (the Supreme Court has not yet decided whether to take up the case). Assuming the Court of Appeals’ decision stands, State Farm, and possibly other insurers, may need to end the practice of issuing joint checks. Those insurers apparently will also bear greater responsibility for determining how personal injury settlement proceeds should be disbursed.

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About the Author
George Sanderson is a partner with Ellis & Winters LLP.  His practice includes general commercial litigation, lender liability defense, and matters involving bankruptcy and creditors’ rights.

by Denaa J. Griffin, Yates McLamb & Weyher, LLP

Let me first speak to the bottom line: the law firm that intentionally promotes and retains ethnically, racially, and gender-diverse attorneys has a significant edge. Not groundbreaking news. The way to be most successful is to mirror the diversity of the clients and causes our legal profession serves. Law firms and organizations without this edge tend to devise single, predictable solutions and, while those law firms may be successful in some areas, the goal is always to improve and enhance the advocacy for our clients.

Diversifying our legal profession is not an easy task. As the American Bar Association’s 2017 National Lawyer Population Survey1 highlights, not much has changed in the last 10 years regarding diversity in our profession despite noble efforts to improve the same. I am optimistic most hiring partners and recruiters know that it is not enough to merely be open to the idea of hiring diverse candidates and hoping those candidates, if hired, are successful and remain with the firm or organization. I am also encouraged that most hiring partners and recruiters know the importance of taking affirmative steps to establish a diverse candidate pool for summer associates and lateral hires, providing meaningful and intentional mentorship, and ensuring that your clients also know and appreciate the benefits of having diverse attorneys at your firm or organization.

Firms and organizations must recognize, first, that the need for improvement is not going to organically correct itself. Firms and organizations must take affirmative steps in their recruitment, mentorship, and client access.

RECRUITMENT. Firms and organizations must be intentional in the recruitment of summer clerks. Let us ensure we are spreading the recruiting net far and wide when recruiting for summer associates. Did you know there is a Minorities in the Profession First-Year Summer Associates Program? Through that program, the North Carolina Bar Association's Minorities in the Profession Committee gathers minority law students from all of the North Carolina Law Schools who are in the top 10% of their class, after at least one screening interview, just for you to interview. There are other similar programs by various organizations around the State such as the Mecklenburg County Bar’s Charlotte Legal Diversity Clerkship Program. These organizations help to take the initial leg work out of intentionally diversifying your summer clerk class. A diverse summer clerk class gives firms and organizations a diverse pool from which first-year associates are groomed and ultimately chosen.

MENTORSHIP.  Intentionality also includes being deliberate about providing your ethnically, racially, and gender-diverse attorneys with mentorship, both within and outside of your firm or organization. Be intentional about that mentorship. Encourage them to serve on the Diversity Committee of the North Carolina Association of Defense Attorneys or the Defense Research Institute. Appreciate that they may want to join the Capital City Lawyers Association, the North Carolina Association of Women Attorneys, or other similar voluntary legal organizations. Mentor them. Explain the importance not only of responding appropriately to discovery requests, but also to remember to introduce themselves to the judge when appearing outside of their home county. Recruitment is only the start; resources must also be dedicated to ongoing resources beyond the initial hiring to sustain a diverse environment. Mentorship is the lynchpin in retaining diverse, talented attorneys.

CLIENT ACCESS. Intentionality also includes being intentional with bringing your ethnically, racially, and gender-diverse attorneys to meetings with your clients so that there is buy-in and a willingness from the client to also rely on your diverse attorneys’ expertise. Law firms and organizations have to continue to improve upon efforts to include their diverse attorneys in critical career development networking opportunities. Client access and having the opportunity to build those relationships is invaluable in the retention and promotion of diversity attorneys at your firm or organization.

Overall, being committed to diversifying your firm or organization must include retention efforts, mentoring, and social programs designed to foster an environment in which all of your attorneys can thrive, not just most of them. The American Bar Association in 2016 adopted a resolution urging law firms and corporations to create opportunities for diverse attorneys, including directing a greater percentage of their legal business toward minorities. We know, through various legal organizations’ research, that there has been an upward nationwide trend in the commitment from law firms to diversity and inclusion efforts. Albeit a larger problem than one firm or organization can change, there are small intentional changes each firm or organization can make with minimal cost such as, but not limited to:

• Sponsoring a minority law student/attorney networking event and having your attorneys attend;
• Developing a mentoring relationship with an attorney of a different gender, race, ethnicity, or sexual orientation; or
• Including a conversation about your firm or organization’s diversity initiatives during your retreat or organizational meeting and develop action items from that conversation.

Be sure your firm or organization does not seek diversity solely for political correctness or for some type of community service. Be diverse to be a better organization. Be diverse to put a different message out to the profession and community overall. Continue to value diversity in opinions and values for the betterment of your organization and the legal profession. Innovative thinking comes from a diverse team. In the fifty years after the Honorable Thurgood Marshall joined the Supreme Court of the United States and in the almost 34 years since the first African-American Associate Justice was appointed to the Supreme Court of North Carolina, it is important to see how far we have come and how we have to continue that progress in the future with our intentional work. As firms and organizations recognize the continued need for improvement in the legal profession, we must all work to ensure that diversity is present and thriving at all levels of the profession.

1 AMERICAN BAR ASSOCIATION, ABA NATIONAL LAWYER POPULATION SURVEY (2017).

Denaa J. Griffin is an Associate Attorney with Yates, McLamb & Weyher LLP located in Raleigh, North Carolina. She serves as a member of the Diversity Committee of the North Carolina Association of Defense Attorneys and is committed to the purposeful work of law firms and organizations in diversifying the legal profession.

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by Laura Dean, Cranfill Sumner & Hartzog, LLP

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” As the United States Supreme Court explained, the purpose of this requirement is to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). In recent years, defendants have been challenging the sufficiency of shotgun-type pleadings based on the United States Supreme Court’s decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 566 U.S. 662 (2009).

Shotgun complaints “fail to apprise the opposing party of the particular claims against it (and the potential extent of its liability) . . . [and] water[] down the rights of parties to have valid claims litigated efficiently and waste scarce judicial resources.” Jackson v. Waring, Civil No PJM 15-1233, 2016 WL 7228866 at *4 (D. Md. Dec. 13, 2016).

In a Section 1983 case, Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015), the Eleventh Circuit sifted through more than sixty past opinions and outlined four broad categories of shotgun pleadings. Id. at *1322. The first, most common type, is “a complaint containing multiple counts where each count adopts the allegations of all preceding counts . . . .” Id. The second is “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.” Id. The third does not separate into a different count each cause of action or claim for relief. Id. The fourth asserts multiple claims against multiple defendants without specifying which defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against. Id.

In asbestos litigation, many complaints arguably fall into the fourth category. Plaintiffs will often include only generic conclusory allegations against multiple defendants without tying any defendant to a particular product. For example, the complaint may include an allegation that plaintiff worked with and was exposed to asbestos and asbestos-containing materials, products or equipment mined, manufactured, processed, imported, converted, compounded, and/or sold by the defendants. However, plaintiff will not provide any additional details, including the particular product to which plaintiff was exposed, the nature of the exposure, or when the exposure occurred.

Some federal courts have expressed skepticism in response to these wide sweeping pleadings. For example, in Craver v. 3M Co., No. 1:16cv01397 (M.D.N.C. Aug. 17, 2017), the court recognized that asbestos litigation “is different from most other federal litigation.” However, the court explicitly stated that despite these difficulties asbestos litigation “is still litigation subject to the Federal Rules.” Id. In dismissing plaintiff’s complaint, the court explained that plaintiff made “only generic allegations against all Defendants as a group” and that the allegations were “too vague to apprise [defendant] of the basis of its alleged liability and to allow the Court to draw a reasonable inference that [defendant] is liable for the misconduct alleged in the Complaint.” Id.

Similarly, in Rhodes v. Mcic, Inc., No JKB-16-2459, 2017 WL 25375 (D. Md. Jan. 3, 2017), the court granted the defendants’ motions for judgment on the pleadings explaining that the complaint “lumped all Defendants together generally”, “made no effort to allege facts particular to any Defendant”, and did not “narrow[] the relevant time period as to each Defendant.” Id. at *3.

In Boggs v. Am. Optical Co., No. 4:14-CV-1434-CEJ, 2015 WL 300509 (E.D. Mo. Jan. 22, 2015), plaintiff alleged exposure to multiple asbestos-containing products without differentiating between the products or defendants. Id. at *1. In ruling on a motion to dismiss, the Boggs court explained:

A complaint which lumps all defendants together and does not sufficiently allege who did what to whom, fails to state a claim for relief because it does not provide fair notice of the grounds for the claims made against a particular defendant. A “shotgun pleading” or “kitchen sink pleading” in which a plaintiff asserts every possible cause of action against a host of defendants for actions over a prolonged period (here, twenty-seven years) but without facts specific enough that those defendants can respond to the allegations does not comport with even the most generous reading of Rule 8(a).

Based on the few facts alleged in the complaint, it is not plausible that all thirty-two defendants caused [plaintiff] to be exposed to asbestos from two dozen kinds of products over a twenty-seven year period and in five different geographical locations. Rule 8(a) requires more specificity than [plaintiff] has provided if his complaint is to be taken as anything more than speculation as to each defendant.

Id. at *2 (citations omitted).

In Bulanda v. A.W. Chesterton Co., No. 11 C 1682, 2011 WL 2214010, at *2-3 (N.D. Ill. Jun. 7, 2011), plaintiff’s claims were also dismissed without prejudice because, aside from the first paragraph in which defendants were listed by name, the complaint made only generic allegations as to the defendants collectively. Id. at *2. The complaint did not “identify the allegedly offending product that [the moving defendant] manufactured, sold, or distributed.” Id. at *2.

Other cases in which the court dismissed similar complaints include Rothchild v. Crane Co., No. 14-80271-CIV, 2014 WL 3805491 (S.D. Fla. Aug. 1, 2014); Baldonado v. Arvinmeritor, Inc., No. 13-833-SLR-CJB, 2014 WL 2116112 (D. Del. May 20, 2014) report and recommendation adopted Civ. No. 13-833-SLR/CJB, 2014 WL 2621119 (D. Del. Jun. 10, 2014); Aguirre v. Amchem Prods., No. CV 11–01907–PHX–FJM, 2012 WL 760627 (D. Ariz. Mar. 7, 2012).

Despite this recent trend, some “kitchen sink” complaints continue to survive motions to dismiss. In Miller v. 3M Co, No. 5:12-CV-00620-BR, 2013 WL 1338694 (E.D.N.C. Apr. 1, 2013), plaintiffs alleged that occupational exposure to asbestos-containing products caused Mr. Miller to contract mesothelioma, which resulted in his death. One defendant moved to dismiss the complaint. In denying the defendant’s motion to dismiss, the court heavily relied on an attachment to the complaint in which plaintiff asserted “factual information about Mr. Miller’s work experience and provide[d] dates, occupations, employers and worksite locations, as well as a list of products containing asbestos to which he was allegedly exposed” and found that these allegations “sufficiently [met] the applicable legal standard.” Id. at *2.

In Lineberger v. CBS Corp., 1:16cv390, 2017 WL 3883711, at *2 (W.D.N.C., Aug 14, 2017), the court, relying on Miller, also declined to dismiss plaintiff’s shotgun complaint. Although the individual defendants were only listed in an attachment to the complaint, the court found that the complaint gave a history of employment during which time plaintiff alleged he was exposed to asbestos and found that these allegations were sufficient to survive the motion to dismiss. Id. at *1.

Other cases in which the court has declined to dismiss shot gun complaints include Hicks v. Boeing Co., No. 13-393-SLR-SRF, 2014 WL 1284904 (D. Del., Mar. 21, 2014); Soucy v. Briggs & Stratton Corp., No. 1:13-cv-00068-NT, 2014 WL 794570 (D. Me. Feb. 27, 2014).

The above decisions are difficult to reconcile and the Fourth Circuit has not yet addressed the issue of shotgun-style pleadings in the asbestos context. However, defendants should continue to challenge these pleadings. While motions to dismiss, when granted, are without prejudice, these efforts may put pressure on plaintiffs’ attorneys to better evaluate the strength of their claims against individual defendants before filing.

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by Erin Collins & Shannon Metcalf, Hedrick Gardner Kincheloe & Garofalo, LLP

The Centers for Medicare and Medicare Services (CMS) issued an updated workers’ compensation Medicare Set Aside (MSA) Manual on July 31, 2017 (which was dated July 10, 2017), with new information and options with regard to MSAs. This article is intended to update practitioners on these developments and provide a brief analysis of the new changes, which include 1) a new one-time “Amended Review” process for previously approved MSAs; 2) seemingly new restrictions on CMS approval of “zero-dollar” MSAs; and 3) other various changes that likely impact the workers’ compensation practice.

The “Amended Review” Process:

CMS is now allowing “re-review” of prior approved MSAs under certain circumstances. The “Amended Review” process and allows parties to obtain a second review of MSAs where the parties believe the projected care has changed so much that the new proposed MSA would result in a 10% or $10,000.00 change (whichever is greater) in CMS’ previously approved amount. To be eligible for this re-review option:

• The case must still be open and may not have already settled;
• The original MSA must have been approved between one and four years from the date the Amended Review is requested;
• There must not be a previous request for an Amended Review (so can only do this once); and
• The requested MSA change must result in a 10% or $10,000 change (whichever is greater) in CMS’ previously approved amount.

o Note, the new proposed MSA amount can be greater than or less than the approved MSA amount. The example CMS gives is for an Amended Review to increase the MSA.

This process could work well in files sitting around with old, approved MSAs that made the claim unable to settle at the time the MSA was approved by CMS. However, issues may arise where cases are “partially” resolved (ie: indemnity only) or cases are resolved on a contingent basis as it is unclear whether CMS will consider those cases to be “settled” and therefore, ineligible for review. Please also note the prior re-review processes are still in place, which includes: 1) the CMS determination contains obvious mistakes or 2) the parties have additional evidence not previously considered by CMS, which was available prior to the submission date which warrants a change in the CMS determination. These prior processes were historically only successful in a very limited set of circumstances.

Zero-Dollar MSA approvals:

The second change will likely impact practitioners with clients who have historically obtained CMS’ seal of approval on their decision to not set aside any funds for future Medicare-covered medicals for a Medicare beneficiary. For example, CMS traditionally would approve these “zero-dollar MSAs” in denied claims where no benefits had been paid by the Defendants and the settlement reflected a true compromise of a disputed claim. CMS’ placement of the discussion of “zero-dollar MSAs” in the user guide under the “Hearing on the Merits” section indicates the parties may now need to provide CMS with a court order after a hearing on the merits to get a zero-dollar MSA approved by CMS. From a practical perspective, there are very few scenarios where this is going to be possible in the North Carolina workers’ compensation process. It is still yet to be seen whether CMS is going to freeze all approvals of zero-dollar MSAs except for in very limited circumstances; however, practitioners should be cautious when electing to submit a zero-dollar MSA for approval as the response may ultimately be a full projection of lifetime future medicals.

Other Changes in the New MSA Manual:

There are a variety of other changes that took place in the July 10, 2017, version that will impact the value of MSAs moving forward. These changes include:

• CMS has advised they will now be including the cost of TENS units in cases involving treatment of chronic lower back pain.
• CMS has advised they will no longer be using “across the board” pricing for spinal cord stimulators or other implantable devices. They used to price replacements at a set price of $30,274 in every jurisdiction. Now they are going to price them out specifically for each jurisdiction, which means the pricing in NC will likely be a lot higher than the former price.
• CMS has advised the pricing for hospital services are not going to be based on what those should be in the specific area where the claimant lives, but based on what a major medical center in the state would charge. So, for instance, if your claimant was going to have surgery in a Fayetteville hospital, CMS will likely price it based on what a Charlotte or Raleigh hospital would charge for the same service, which will be more. Fee schedules are applicable throughout the state, but that does not mean certain hospitals do not use different codes for pricing, etc.
• CMS added the following language to the definition of “total settlement amount” when trying to determine if the review thresholds are met: “amounts forgiven by the carrier.” This can be interpreted many different ways, and could potentially be interpreted to include payment of Plaintiff’s portion of mediation fees and the Defendants’ agreement to not seek reimbursement for Claimant’s portion of the clincher processing fee. Remember, submission of an MSA to CMS is a voluntary process.
• CMS now allows parties to change MSA vendors. In the past only one vendor could be involved in the process of an MSA submission. Now a party can change vendors if desired.

These changes only impact MSAs that are going to be submitted to CMS. It is important to remember that CMS submission is a voluntary process and is not mandated by any federal law or administrative memorandum. Many parties still require/demand CMS submission as a part of their guidelines/claims handling and for those parties, these changes will most certainly impact the day to day handling of their claims. For parties that do not have specific requirements for CMS submission, it is important to remember that non-submission is always an option.

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by Matthew Pooley, Benjamin Cotts & James Brennan, III 

Magnetic induction has long been present in modern society, typically without the knowledge of the general public. The walk-through metal detectors at the airport and the anti-theft gates at the exits of retail stores are among the largest and most commonly-encountered sources of magnetic induction. Other smaller devices, such as hand-held metal detectors (think of the person at the beach searching for jewelry) and induction cooktops that heat cooking pans without heating the surface of the cooktop itself, also make use of magnetic induction. A somewhat different form of magnetic induction is involved in the radiofrequency identification (RFID) used to pay highway tolls without the need for stopping and the RFID used in shipping containers. Magnetic induction is even used inside the highly-specialized coils of a magnetic resonance imaging machine. The magnetic induction from each of these devices is described by Faraday’s law, a basic law of electromagnetics, which states that if a time-varying magnetic field passes through the surface of any conducting loop, a voltage will be induced in that loop. The voltage induced in this loop is proportional to the time-varying change in magnetic flux (i.e., the amount of magnetic field that enters the loop perpendicular to its surface), as shown in Figure 1.

Figure 1. A magnetic field passing through the surface of a loop induces a voltage in the terminals of a loop.

More recently, the mobile revolution and the explosion of wirelessly-connected devices as part of the “Internet of Things” (IoT) has created a desire to be able to conveniently charge devices without the need to plug them into a wall outlet. Wireless charging is among the fastest-growing segments of technology, particularly related to portable devices. Devices such as mobile phones, tablets, and laptop computers are being outfitted with the built-in capability to charge their batteries wirelessly. In addition, larger items such as electric vehicles will soon be available with wireless charging capabilities.

Along with this proliferation of wireless connectivity and charging capabilities comes a potential cost, known in the industry as electromagnetic compatibility (EMC). Each of these devices (and countless others) needs to be able to operate successfully in the presence of potential interference from other devices (i.e., electromagnetic susceptibility or immunity) and each one needs to consider the possible effects of their own emissions on other devices (i.e., electromagnetic interference).

Arguably medical devices are the most important group of devices in need of high electromagnetic immunity, particularly those with life-saving capabilities such as pacemakers and implanted cardioverter defibrillators (ICD). The need for pacemakers and ICDs to operate correctly in the presence of external magnetic-field sources is of keen interest to medical device manufacturers; it is equally important to manufacturers, distributors, and users of inductively-coupled devices that these devices operate without a disruption to their proper function. The following brief discussion focuses on pacemakers, but other implantable and wearable medical devices, such as ICDs, cochlear implants, neurostimulators, wearable continuous glucose monitors, and wearable insulin pumps, are also of concern when considering EMC.

Pacemakers are electronic devices that are surgically implanted in patients to monitor and control irregularities in a patient’s natural heart activity. The two main functions of a pacemaker are sensing and controlling (i.e., pacing) heart rhythm. These functions involve using a pulse generator and lead wires that are configured as either unipolar (shown in Figure 2b) or bipolar (not shown). Typically, while in “sensing mode” the pacemaker monitors the patient’s heart activity through these lead wires. If only natural heart activity is present, the pacemaker will not enter the pacing mode, but if the patient’s heart rhythm is too slow or is interrupted, the pacemaker sends an electrical impulse to the heart to regulate the patient’s heartbeat.

Figure 2. a) X-ray showing pacemaker with lead and heart (left) and the location of the pacemaker with associated skin incision (right);

Modified from Seckler et al., 2015 Figure 2. b) A diagram of a unipolar pacing device, with an intracardiac cathode located on the lead tip in the right ventricle (“Tip”). The circuit is completed by the housing of the device, which forms the anode.

Electromagnetic interference with the function of a pacemaker from magnetic induction occurs when the magnetic field from an outside source passes through the loop formed by the pacemaker’s lead and the pacemaker’s housing. The potential for interference can be calculated by using Faraday’s law of induction (described above). Pacemakers are particularly susceptible to electromagnetic interference from magnetic induction because the leads of the pacemaker sense the very small levels of electrical activity within the heart and therefore small induced voltages can interfere with the proper functioning of a pacemaker. As shown in Figure 3, even a small amount of external interference induced onto the leads of a pacemaker can mask the cardiac rhythm being sensed, potentially interfering with the proper function of the pacemaker.

Figure 3. Illustration of the potential effect of electromagnetic interference on pacemaker function. A normal cardiac rhythm (top) experiencing a magnetic noise source (middle) can cause potential interference with the pacemaker functioning (bottom).

In general, the influence of electromagnetic interference on a pacemaker can be controlled to some extent by the patient. For example, if a patient is aware that a particular source has the potential to influence the pacemaker (information garnered through either their physician or the medical device manufacturer) then he or she can try to stay as far away as possible from the source, or can pass by the source quickly. The patient, however, has little or no control over the intrinsic properties of an electromagnetic source, such as the frequency of its operation, the modulation of the output signal, and power output.

Since there are factors that the patient cannot control, medical device manufacturers build safeguards into the design of pacemakers. These safeguards assure that the device continues to provide clinically acceptable therapy in the presence of typically-encountered levels of electromagnetic interference. In addition, pacemakers are designed to revert to a conservative mode of operation even if the pacemaker no longer senses how the heart muscle is functioning. In this state the pacemaker will provide pacing activity at a pre-determined fixed rate. Though a pacemaker may “fly blind” without its sensing function while in the presence of a source of electromagnetic interference, it is still under software control. This operation, where the pacemaker reverts to a limited but functional state during an interference event, is known as Noise Reversion or Safety Mode.

Since devices emitting magnetic fields are now so common in everyday life, they are often implicated in cases where a patient either had a medical incident or where a medical device malfunctioned; yet other factors need to be considered in a failure analysis, such as the influence of a patient’s overall health, the typical lifetime of a medical device, or known failure incidents of the medical device. Government resources (such as the Food and Drug Administration’s Manufacture and User Facility Device Experience [MAUDE] database) provide a way to locate information on the performance of a given device. If hundreds of thousands of devices have been implanted in patients throughout the United States over several years and no failure incidents related to electromagnetic interference have been reported, then it is important to consider other root causes for a failure. Medical devices are typically designed to operate safely in diverse electromagnetic environments, and manufacturers of devices that emit electromagnetic fields typically keep the intensity of emission as low as possible.

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The 4th Circuit Joins the Discussion on Standing in Data Breach Cases
by Patricia Heyen & Rolf Garcia-Gallont, Womble Carlyle Sandridge & Rice, LLP

While seemingly unrelated, Ashley Madison, eBay, Sony, and Target have one thing in common; they have all, at one point or another, lost control over their highly sensitive data due to a data breach.

As the number of reported data breaches reached an all-time high in 2016, federal courts have been grappling with the question of who should be considered a victim in the eyes of the law. To date, six circuits have addressed standing in the context of data breach litigation, with the Fourth Circuit most recently joining the discussion in Beck v. McDonald. In Beck, the Fourth Circuit held that the mere possibility that a plaintiff’s information may be misused as a result of a data breach is insufficient to establish standing.

Beck v. McDonald

In Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017), the U.S. Fourth Circuit Court of Appeals affirmed the dismissal, for lack of subject-matter jurisdiction, of two putative class action claims against the William Jennings Bryan Dorn Veterans Affairs Medical Center (“Dorn VAMC”) and several individuals related to the Dorn VAMC.

The plaintiffs in the consolidated appeal were veterans who received medical treatment and health care at the Dorn VAMC in Columbia, South Carolina. Beck, 848 F.3d at 266. The medical center experienced two data breaches, the result of a medical center laptop and four boxes of pathology reports being misplaced or stolen. Id. The laptop contained unencrypted personal information of approximately 7,400 patients, including names, birth dates, the last four digits of social security numbers, and physical descriptors (age, race, gender, height, and weight). Id. at 267. The pathology reports contained identifying information of over 2,000 patients, including names, social security numbers, and medical diagnoses. Id. at 268.

Richard Beck and Lakreshia Jefferey filed suit on behalf of the approximately 7,400 patients whose information was stored on the missing laptop, and asserted claims under common-law negligence, the Privacy Act of 1974 (5 U.S.C. § 552a et seq.), and the Administrative Procedure Act (5 U.S.C. § 701 et seq.). Id. at 267. The plaintiffs alleged that the Dorn VAMC’s “failures” and “violations” of the Privacy Act caused them “embarrassment, inconvenience, unfairness, mental distress, and the threat of current and future substantial harm from identity theft and other misuse of their Personal Information.” Id. They further alleged that the threat of identity theft required them to purchase credit monitoring services, monitor financial statements, and move their financial accounts to different institutions. Id.

Beverly Watson filed the second suit on behalf of the approximately 2,000 patients whose pathology reports had gone missing. Id. at 268. She alleged the same harm as the Beck plaintiffs, and asserted similar claims for money damages, and declaratory and injunctive relief. Id.

The district court dismissed both suits for lack of subject-matter jurisdiction, holding that the plaintiffs lacked standing because they failed to establish that they had suffered an injury-in-fact. Id. at 268-69.

The Fourth Circuit’s Opinion

As a quick refresher, one of the “irreducible minimum requirements” that a plaintiff must establish to have standing to sue in federal court under Article III is an “injury in fact.” Id. at 269. “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 270 (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (internal quotation marks omitted).

The district court in Beck granted the defendants’ motion to dismiss, holding that the plaintiffs lacked standing under the Privacy Act. Id. at 267-68. The district court pointed to the U.S. Supreme Court’s holding in Clapper v. Amnesty International USA, 133 S. Ct. 1138, 1155 (2013), and reasoned that as to the “certainly impending” standard (i.e., an allegation of future injury can support standing to sue only if the plaintiff can demonstrate that the injury is “certainly impending”), the plaintiffs’ fear of future harm was too speculative given that it was “contingent on a chain of attenuated hypothetical events and actions by third parties independent of the defendants.” Id. at 268. The district court concluded that the plaintiffs had “not submitted evidence sufficient to create a genuine issue of material fact as to whether they face a ‘certainly impending’ risk of identity theft.” Id.

The Fourth Circuit agreed, stating that the Beck plaintiffs failed to provide any “evidence that the information contained on the stolen laptop ha[d] been accessed or misused or that they ha[d] suffered identity theft . . . [or] that the thief stole the laptop with the intent to steal their private information.” Id. at 274. The Fourth Circuit held that the Watson complaint suffered from the same deficiency. Id. at 275. In sum, “the mere theft” of the laptop and pathology reports “without more, [did] not confer Article III standing.” Id.

Even as to the lesser “substantial risk” standard, (i.e., a plaintiff must show that there is a “substantial risk” that the harm will occur), the Fourth Circuit determined that the plaintiffs’ calculations that approximately 33% of those individuals whose information was stored on the laptop would have their identities stolen and that all individuals whose information was stored on the laptop would be 9.5 times more likely to experience identity theft was insufficient to establish a “substantial risk” of identity theft. Id.

Both the district court and the Fourth Circuit Court of Appeals relied on Clapper to determine what is required of a plaintiff to prove an injury-in-fact based on a threatened injury: the threatened injury must be “certainly impending,” or there must be a “substantial risk” that the harm will occur such that a party may reasonably incur costs to mitigate or avoid the harm. Id. at 272, 275.

Certainly Impending

The Fourth Circuit applied the “certainly impending” test for the first time in the context of a data breach case, and looked to the First, Third, Sixth, Seventh, and Ninth Circuits for guidance. See id. at 273-74 (citing Galaria v. Nationwide Mut. Ins. Co., No. 15–3386, 663 Fed.Appx. 384, 387–89, 2016 WL 4728027, at *3 (6th Cir. Sept. 12, 2016); Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 692, 694–95 (7th Cir. 2015); Krottner v. Starbucks Corp., 628 F.3d 1139, 1142–43 (9th Cir. 2010); Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 632–34 (7th Cir. 2007); Katz v. Pershing, LLC, 672 F.3d 64, 80 (1st Cir. 2012); Reilly v. Ceridian Corp., 664 F.3d 38, 40, 44 (3d Cir. 2011)). Ultimately, the Fourth Circuit distinguished the facts of the case before it from those decided by its sister circuits, and provided some hints as to what evidence would establish “certainly impending” injury: specific misuse of the personal information and intent to steal the personal information. However, the Beck court emphasized that its decision does not require a plaintiff to show that the stolen information has already been misused—such evidence has merely proven to be sufficient before other courts in the past. See id. at 275.

Substantial Risk

With regard to the “substantial risk” standard, the court’s decision provides unclear guidance for future plaintiffs. While the court unambiguously held that the Beck plaintiffs’ calculations of increased risk did not amount to a “substantial risk,” the court also declined to set a numerical “floor.” See id. at 275-76. While plaintiffs will face some uncertainty when bringing data breach cases going forward, at the very least, plaintiffs can rely on the fact that calculations such as those put forth in Beck will not suffice.

Have You Been Injured (in the Eyes of the Fourth Circuit)?

Although the Fourth Circuit did not state so outright, its analysis in Beck strongly indicates that the “certainly impending” and “substantial risk” inquiry is fact-specific. Beyond the examples that can be culled from the cases discussed in the Fourth Circuit’s opinion, there is a broader question of when a data breach causes injury in real life, and what evidence a plaintiff can present to substantiate that injury.

Beck Examples

Standing	Probably No Standing	Maybe Standing
There is evidence of actual misuse or access to the personal information by the “data thief” (e.g., fraudulent charges on a credit card, or attempts to open a fraudulent account using a stolen social security number).	The data breach occurred 3-4 years ago, and no harm has occurred as a result. The item that was stolen could have been stolen for reasons other than the sensitive data it contained. The increased likelihood of becoming a victim of identity theft due to the data breach is 33% or lower. The entity that held the sensitive information has offered to provide free credit monitoring. There is evidence that the “data thief” intentionally targeted the personal information compromised in a data breach.	There is evidence that the "data thief" intentionally targeted the personal information compromised in a data breach.

For example, HAVE I BEEN PWNED? (www.haveibeenpwned.com) is a website that aggregates personal account data that has been illegally accessed and then released into the public domain. By simply entering an email address or username, a visitor can know whether that account has been associated with a known breach, and what data was exposed in that breach, including names, genders, dates of birth, physical addresses, email addresses, usernames, passwords, password hints, security questions and answers, IP addresses, credit card numbers, and phone numbers.

If an individual’s data is picked up by the website, it is very likely that the “data thief” intentionally targeted that sensitive data in the attack—a fact that “sufficed to push the threatened injury of future identity theft beyond the speculative to the sufficiently imminent” in Galaria, Remijas, and Pisciotta. Id. at 274. Yet, if a plaintiff’s information is on the website, but there is no evidence of actual misuse, and the breach happened several years ago, it seems unlikely that the Fourth Circuit would find an injury in fact.

It is possible that reputational injury could suffice to show injury in fact. HAVE I BEEN PWNED? contains a subset of data relating to “sensitive breaches (such breaches are considered “sensitive” in that someone’s presence on the website may adversely impact them if that information became public). Ashley Madison, an online dating service marketed to people who are married or in committed relationships, is considered one of these “sensitive” websites. Even if the Ashley Madison breach had happened five years ago, and there was no evidence of actual misuse of private information, the reputational and marital injury caused by the mere revelation of membership could potentially constitute an injury in fact.

As a final hypothetical, imagine that the compromised information consists of an email address, a hashed password, and a password hint. The potential for injury in such a case is magnified by the fact that individuals tend to use the same email address and the same or similar password across many sites. Indeed, a common method of gaining unauthorized access to an online account is called a “brute-force attack,” where an attacker tries many different passwords until the correct password is found. The number of guesses needed in a brute-force attack is greatly reduced if the attacker has a hint, or the hash used to obscure the actual password is not very strong. If the hypothetical owner of the compromised information can prove that there were multiple login attempts on websites where he/she uses the same email address (an indication of a brute-force attack), would that be enough evidence of actual misuse? Like the plaintiffs in Beck, we will have to wait and see what happens.

This article originally appeared in Volume 7, Issue 1 – May 2017 of "The Middle Ground", the publication of the Federal Bar Association - Middle District of North Carolina Chapter. Reprinted with authors permission.

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by William Silverman, Wall Templeton & Haldrup, PA

Effective risk transfer in the construction industry is critical. So when an opinion comes out broadening that horizon, practitioners should take note. A recent federal court decision in an additional-insured coverage action opens a new door in North Carolina for construction risk transfer by holding that the construction parties’ contract trumps the language of the insurance policies to determine priority of coverage.

Continental Casualty Company v. Amerisure Insurance Company1 arose from a dispute about coverage under a sub-subcontractor’s CGL and umbrella policies for serious personal injuries sustained during a construction project in Charlotte. The general contractor on the project, KBR Building Group, LLC (“KBR”), entered into a subcontract with SteelFab, Inc. (“SteelFab”) to supply and erect the structural steel for the project. SteelFab then subcontracted with Carolina Steel and Stone, Inc. (“CSS”) for the erection of structural steel. During the project, an employee of CSS fell from steel decking and suffered serious injuries.

Under the policy chain for the project, KBR was an additional insured on SteelFab’s CGL policy with Continental Casualty. SteelFab and KBR also were additional insured on CSS’s umbrella and CGL policies with Amerisure. When the injured employee filed suit, the risk transfer line dance kicked into gear. KBR tendered its defense to SteelFab’s carrier, Continental Casualty. Continental Casualty in turn tendered to CSS’s carrier, Amerisure.

Amerisure admitted that SteelFab and KBR qualified as additional insured under the CSS policy, but noted the owner on the project in question had an owner controlled insurance program (“OCIP”) in place. Amerisure’s policy contained an exclusion for damages arising out of the named insured’s operations when included in an OCIP2. Amerisure thus determined that coverage was excluded and, accordingly, denied that it had any duty to defend SteelFab or KBR.

Continental Casualty stepped in to defend KBR and SteelFab in the personal injury suit upon Amerisure’s denial, incurring more than $650,000 in defense costs, and resolving the case for $1.7 million. As part of the settlement agreement, Continental Casualty preserved its rights to pursue indemnification and/or contribution from Amerisure, and filed a declaratory judgment action to establish that:

- Amerisure owed a duty to defend SteelFab and KBR in the personal injury suit;

- the Amerisure policies applied on a primary and non-contributory basis; and

- Continental Casualty was entitled to reimbursement of all defense costs and expenses incurred in connection with the personal injury suit (i.e., equitable subrogation).

Both Continental Casualty and Amerisure eventually filed cross-motions for summary judgment in the declaratory judgment action on all issues. Judge Graham Mullen presided over these motions and ruled as follows:

1. Duty to Defend

There was no real dispute that Amerisure’s duty to defend SteelFab and KBR was triggered in the personal injury suit. Amerisure admitted that SteelFab and KBR were additional insured under the CSS policies, and the complaint in that suit alleged damages because of personal injury caused by an occurrence. Nonetheless, Amerisure argued that the plain language of the OCIP Exclusion (i.e., bodily injury arising out of CSS’s operations included in an OCIP) applied to exclude coverage.

The fallacy in Amerisure’s position, however, was that CSS was not enrolled in the OCIP on the project – a fact of which Amerisure was aware when it denied a defense to SteelFab and KBR. There was inarguably an OCIP in place on the project, and CSS was eligible to be enrolled in the OCIP. Amerisure contended that the OCIP exclusion should apply to bar its duty to defend because its named insured (CSS) was eligible to be enrolled and should have been enrolled in the OCIP.

In his opinion, Judge Mullen conceded that there may be an issue of fact as to whether CSS was eligible to be enrolled and should have been enrolled in the OCIP, but nevertheless rejected Amerisure’s position. He noted that when determining whether an insurer has a duty to defend in North Carolina, the insurer must accept as true all allegations in the complaint, and also must consider reasonably available facts outside the four corners of the pleading that could be covered by its policy3. An insurer, however, may not consider extrinsic facts to defeat a duty to defend4. The complaint in the personal injury suit made no mention of insurance, much less any OCIP in place on the project. Judge Mullen thus held that Amerisure breached its duty to defend SteelFab and KBR because Amerisure could not establish an element of its OCIP Exclusion (that CSS’s operations were included in an OCIP) based solely on the allegations of the personal injury complaint and could not otherwise rely on facts outside the pleadings to establish the application of an exclusion5.

2. Priority of Coverage

Since coverage was established6 and the amount of the personal injury settlement was more than either of the CGL policy’s limits standing alone, the next issue was the order of coverage – which policies were primary and which were excess. In a novel ruling under North Carolina law, Judge Mullen determined that the contract between CSS and SteelFab governed the priority of coverage, not the language of the insurance policies themselves.

Amerisure argued that even if its policies did provide coverage, that its primary coverage was limited to $1,000,000 (the limits of its CGL policy) and that its umbrella policy was excess over Continental Casualty’s primary policy. In other words, Amerisure’s proferred coverage sequence was: (1) Amerisure CGL ($1M limits); (2) Continental Casualty CGL ($1M limits); then (3) Amerisure umbrella. Conversely, Continental Casualty argued that all of Amerisure’s coverage should be primary, and that its coverage should sit excess to the combined limits from Amerisure’s CGL and umbrella policies.

Judge Mullen first looked at the subcontract between SteelFab and CSS before turning to the policies’ language. The subcontract required CSS to procure both CGL and umbrella insurance with $1,000,000 limits each. The subcontract included an express requirement that CSS would provide insurance that was primary and non-contributory to SteelFab’s insurance program. A Certificate of Insurance issued to SteelFab identifying CSS’s coverage with Amerisure also provided that “coverage is written on a primary basis.” The language in the umbrella policy also plainly provided coverage to SteelFab and KBR as additional insured.

Amerisure argued that the “Other Insurance” provisions in its umbrella policy and Continental Casualty’s CGL policy should govern priority of coverage instead of the subcontract language.7 Amerisure argued these competing clauses made its umbrella excess (only providing coverage after the Continental Casualty CGL policy’s limits were exhausted). Judge Mullen agreed with Amerisure that the language of the “Other Insurance” clauses in the competing policies would make Amerisure’s umbrella policy excess over the Continental Casualty primary policy, but ruled the subcontract language trumped this “Other Insurance” clause analysis to make Continental Casualty’s policy excess.

Judge Mullen premised his decision on the rationale that SteelFab should be entitled to the benefit of its bargain with CSS. SteelFab contracted for protection in the form of $2,000,000 in primary insurance coverage from CSS before its own insurance would be tapped. Judge Mullen held that, because the SteelFab/CSS subcontract evidenced the intent of the parties, that language dictated the priority of coverage notwithstanding insurance policy language to the contrary.

Interestingly, Judge Mullen’s determination was not based on any indemnity agreement between CSS and SteelFab8, although the cases cited in support of his decision all include analysis of a contractual indemnity agreement between the insureds as part of the reasoning for shifting the loss to the downstream subcontractor’s insurance carrier.9

Conclusion

The primary lesson of Continental Casualty v. Amerisure is the importance of careful contract drafting. The explicit risk-transfer terms in the SteelFab/CSS subcontract were central to the end result. The specificity of the insurance requirements created a clear picture of the parties’ intent regarding risk allocation, and Judge Mullen deferred to that arrangement. This decision presents a novel approach to determining priority of coverage in North Carolina, and could create a headache for insurance underwriters given the difficulty in quantifying risk of incurring losses beyond the scope of coverage created by insurance policy language. It will be interesting to see whether the North Carolina state courts follow suit when given the opportunity. Amerisure has appealed this decision to the Fourth Circuit, so an update may be warranted once the appellate process is complete.10

Continental Casualty v. Amerisure also reinforces the sanctity of the duty to defend in North Carolina. North Carolina courts, both state and federal, jealously guard the insured’s right to a defense from its insurer, and this decision exemplifies that zeal. But Judge Mullen’s decision also reflects the absence of any real deterrent for a carrier to deny coverage to a putative additional insured where that party’s own insurer has agreed to defend. While Amerisure was found to owe indemnity for the settlement and had to reimburse half of the defense costs to Continental Casualty, it would have presumably incurred those losses anyway had it accepted the tender in the first place.11 Other than the loss of control of defense and settlement in the underlying suit, Amerisure’s only penalty here is the imposition of pre-judgment interest. Both this decision and the Rodgers Builders decision from last year may encourage upstream carriers to go to the mattresses on additional insured issues going forward, especially in the Western District.12

_________________

13:14CV529-GCM, --- F. Supp. 3d ---, 2017 WL 34822 (W.D.N.C. Jan. 3, 2017).

2The actual exclusion read: "This insurance does not apply to 'bodily injury' or 'property damage' arising out of either your ongoing operations were at any time included within the 'products-completed operations hazard' if such operations were at any time included within a 'controlled insurance program' for a construction project which you are or were involved."

3Waste Mgmt. of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 691, 340 S.E.2d 374, 377 (1986).

4Judge Mullen explained: "an insurer may look to facts collateral to the allegations against the policyholder to confirm a defense obligation, but no to negate one." 2017 WL 34822, *5 (emphasis in original) (citing St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 724 F. Supp. 1173, 1179 (M.D.N.C. 1989), aff'd 919 F.2d 235, 239 (4th Cir. 1990)).

5See New NGC, Inc. v. Ace Am. Ins. Co., 105 F. Supp. 3d 552, 568 (W.D.N.C. 2015) ("Permitting evidence outside the pleadings to negate allegations in the complaint is akin to a perfunctory review of the merits of the underlying claims against the insured. Such review is not consistent with the duty to defend as understood by the insured party and as explained by North Carolina law pertaining to the interpretation of contracts for insurance.")

6Because Amerisure breached its duty to defend, Judge Mullen held that it relinquished any coverage defenses and was liable for the costs of defense and settlement paid on behalf of SteelFab and KBS. 2017 WL 34822, *6 (citing Vigilant, 919 F.2d at 240).

7There is North Carolina authority applying competing "Other Insurance" clauses to determine priority of coverage for an additional insured.  See Universal Ins. Co. v. Burton Farm Dev. Co., LLC, 216 N.C. App. 469, 479, 718 S.E.2d 665, 672 (2011).  The Burton Farm decision, however, was in the context of two competing primary CGL policies. The author is not aware of any North Carolina precedent addressing priority of coverage under facts analogous to this case.

8Judge Mullen expressly refrained from addressing the impact and enforceability of the indemnity clause in the subcontract because he found the plain language of the subcontract and the umbrella policy shifted the entire loss to Amerisure. 2017 WL 34822, *9 n.5.

9E.g., St. Paul Fire & Marine Ins. Co. v. Am. Int'l Specialty Lines Ins. Co., 365 F.3d 263 (4th Cir. 2004) (applying Virginia law); Wal-Mart Stores, Inc. v. RLI Ins. Co., 292 F. 3d 583 (8th Cir. 2002): Am. Indem. Lloyds v. Travelers Prop. & Cas. Ins. Co., 335 F. 3d 429 (5th Cir. 2003).

10Continental Casualty has filed a cross-appeal concerning Judge Mullen's ruling (not discussed above in the interest of brevity) that it was only entitled to a pro-rata reimbursement of its defense costs from Amerisure through a contribution claim. Continental Casualty alleged equitable subrogation, and not contribution, for recovery of all defense costs based on the theory that Amerisure's coverage was primary and non-contributory.  Continental Casualty would have no duty to defend until exhaustion of underlying primary coverage if it truly sat excess, so contends it should be entitled to complete reimbursement for defense costs.

11In dicta, Judge Mullen explains in his decision why Amerisure's proposed interpretation of its OCIP Exclusion supporting its denial would render its coverage meaningless.  2017 WL 34822,*6-*7.  Accordingly, it appears that there would have been coverage under Amerisure's policy(ies) even if it had accepted SteelFab's and KBR's tender and pursued its coverage defenses.

12See Rodgers Builders, Inc. v. Lexington Ins. Co., No. 3:15CV110-MOC-DSC, 2016 WL 1052623 (W.D.N.C. Mar. 11, 2016), appeal dismissed (Sept. 14, 2016) (finding coverage for general contractor as additional insured under subcontractor's CGL, coverage even where no formal legal claim was asserted by the project owner).

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