Archive: June 2012

1
Washington Court of Appeals Holds that Summary Judgment is Proper if the Non-Moving Party’s Expert Opinion is Inadmissible Under Frye
2
K&L Gates’ Arbitration World, June 2012
3
The Perils of Settlement Releases on Subsequent Litigation of Assigned Claims
4
Qui Tam Relators for False Claim Actions Must Plead Sufficient Details to Withstand Motions to Dismiss
5
Buyer Beware: New Jersey’s Appellate Division Confirms that Exclusion for Bodily Injury to “An Employee of Any Insured” Bars Coverage for Third-Party Over Claim Against Additional Insured
6
Violation of NY Lien Law Provision Does Not Discharge Surety’s Obligation Under Performance Bond

Washington Court of Appeals Holds that Summary Judgment is Proper if the Non-Moving Party’s Expert Opinion is Inadmissible Under Frye

Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 167 Wn. App. 28, 272 P.3d 249 (Wash. Ct. App. 2011)

Although summary judgment is improper when opposing experts present conflicting testimony on a genuine issue of material fact, this case demonstrates that a trial court can grant summary judgment if the non-moving party’s expert testimony is inadmissible under the Frye standard. 

In this case, a homeowners association sought insurance coverage when it discovered that its condominiums had been damaged by rot.  The association offered the expert testimony in question as the only proof that the building damage should be covered by the insurance policy.  The Washington Court of Appeals, Division I, held that summary judgment was proper because, although the opposing experts’ testimonies did conflict, the association did not offer admissible testimony to create a genuine issue of material fact regarding the source of the building damage.

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K&L Gates’ Arbitration World, June 2012

From the Editors

Welcome to the 19th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

In this Issue:

  • News from around the World
  • World Investment Treaty Arbitration Update
  • U.S. Supreme Court Takes Another Look at the Enforceability of Pre-Dispute Arbitration Clauses
  • The “SCC Emergency Arbitrator”: First Experiences with the Pre-Arbitral Interim Relief Procedure
  • Guidance from the U.S. Second Circuit on Application of the Evident Partiality Standard
  • Early Case Assessment: A Litigation Arrow in an Arbitration Quiver
  • English Court Decides that Arbitration Agreement is Governed by Law of Seat of Arbitration and Prevails over Exclusive Jurisdiction Clause
  • International Arbitration: Developments from Singapore
  • Unsolved Mystery: Colombia’s International Arbitration Law
  • Who Qualifies as an Investor? A Primer on Protecting Foreign Investments (Part 1)
  • Developments in International Arbitration in Mauritius
  • The Chamber of Arbitration of Milan and the “Mediterranean Project”
  • Eurozone Exits: Possible Impact on Commercial Contracts
  • U.S. Ninth Circuit to Consider Who Decides Arbitrability When Arbitration Clause Incorporates UNCITRAL Rules But Includes Carve-Outs

To view the entire June 2012 edition, click here.

The Perils of Settlement Releases on Subsequent Litigation of Assigned Claims

A&T Siding v. Capitol Specialty Ins., No. 3:10-cv-980-AC, 2012 WL 707100 (D. Or. Mar. 1, 2012)

A siding subcontractor sued the CGL insurance carrier to recover amounts claimed due under a policy that was for the benefit of a condominium homeowners association.  This lawsuit arose when a general contractor was sued by the association for construction defects and the general contractor in-turn sued the subcontractor for negligent construction.  The subcontractor tendered its defense to Capitol and Zurich, each of which initially participated in the defense.  Capitol subsequently withdrew its defense because it decided the alleged defects and damage took place prior to inception of its policy.

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Qui Tam Relators for False Claim Actions Must Plead Sufficient Details to Withstand Motions to Dismiss

U.S. v. Hooker Creek Asphalt, No. 6:08-cv-6307-HO, 2012 WL 913229 (D. Or. Mar. 16, 2012)

A qui tam action brought against contractors for alleged violation of the U.S. False Claims Act arising from a road construction contract was dismissed with prejudice.  The qui tam relator’s complaints (following a series of amendments and, with the court’s direction, the inclusion of additional necessary pleading elements) were found lacking as to personal knowledge and failed to provide the “who, what, when, where and how”.  The relator relied on “representative example type pleading” which lacked required particularity.  The court found that permission to allow further amended complaints would be futile.

Buyer Beware: New Jersey’s Appellate Division Confirms that Exclusion for Bodily Injury to “An Employee of Any Insured” Bars Coverage for Third-Party Over Claim Against Additional Insured

By: Frederic J. Giordano, K&L Gates, Newark

Parties who require additional insured coverage from their contractors usually expect the coverage to extend to third-party over claims, particularly with respect to bodily injury claims by employees of contractors.  Those with such contracts covered by New Jersey law, however, may want to take special notice of a recent ruling of the New Jersey Appellate Division, which suggests that their expectations may be frustrated unless they take particular care in reviewing the policies at issue.

To view the complete article, click here.

Violation of NY Lien Law Provision Does Not Discharge Surety’s Obligation Under Performance Bond

Mount Vernon City School Dist. v. Nova Cas. Co., 19 N.Y.3d 28 (N.Y. Ct. App. 2012)

On April 3, 2012, the New York Court of Appeals held that a compensated surety cannot rely on a violation of Article 3-A of the Lien law to discharge its obligations under a performance bond.  The Mount Vernon City School District (“Plaintiff”) hired a contractor who obtained a performance bond in Plaintiff’s name from Nova Casualty Company (“Nova”), a compensated surety, securing his obligation under the contract.  After he defaulted and Nova refused to pay additional funds to complete the project, Plaintiff sued Nova for breach of contract.  Nova moved for summary judgment claiming that Plaintiff violated Article 3-A of New York Lien Law when, per the contractor’s request, Plaintiff remitted $214,000 of his fee to the Department of Labor (“DOL”) thereby discharging Nova’s duty to perform.

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