Quote of the Day - It was the closest time in our department where firemen risked their lives. It was the most impressive thing I've ever seen.
Will Charges Be Filed Against Fire Captain Who May Have Started 7,000-acre Sierra Fire?
The Sierra Fire north of Anaheim Hills in the Cleveland National Forest has surpassed burning 7,000 acres, a comparatively small fire. It caused only five minor injuries, but no burned homes, although at one time, government officials evacuated nearly 1,200 homes. The fire also caused a shut down of a major thoroughfare through the back of Orange County, tripling commute times for freeways near the fire, depositing a swath of ash like a snowstorm and fouling our air. The fire is nowhere near containment - right now only at 22% - and supposedly won't be fully extinguished for another ten days, and contained sometime late this weekend.
Two possible sources exist for causing the fire: (1) a Fire Captain; or, (2) some campers. In some news reports, the Fire Captain has apologized for causing the fire. According to this article in the Orange County Register, "Richard D. Hawkins, fire and aviation chief for Cleveland National Forest, said he believes the fire was the aftermath of a 10-acre controlled burn near Sierra Peak on [last] Thursday, one of three conducted by his crews last week." The Orange County Fire Authority cryptically calls it an escaped prescribed burn.
Under Federal law, 18 USC 1586, it is a misdemeanor to allow a fire to escape control. Under California law, arson has to be either willfully and maliciously set or it can be someone who aids in the burning of forest land.
Under Federal and state law, it would appear the definition is broad enough to cover the Fire Captain. Will he be charged? Should he?
Add these several factors about the circumstances surrounding the Fire Captain's controlled burn (an oxymoron if there ever was one) into your thought process: (1) temperatures have soared the 70's and 80's; (2) humidity has hovered between 10 and 20 percent; and, (3) Santa Ana winds have wreaked havoc on the Southland.
UPDATE: Here's the Orange County Register's "day-after" interview with Fire Captain Hawkins.
The $1.5 Million Facsimiles You Received On Your Fax Machine
Tired of receiving junk faxes on your fax machine or computer? After receiving over 1,000 faxes in a three-year period, Travel Agent Sherman Gottlieb was, and he decided to do something about it. He sent by fax instructions to Carnival Corporation asking the company to remove his facsimile numbers from its dialer, but they didn't follow his instructions.
Carnival fought back and alleged that Gottlieb didn't have diversity or subject matter jurisdiction as a private attorney general to bring his case in federal court in New York, where Gottlieb lived. Carnival is a Panama corporation, with offices in Florida. Carnival argued (and won) in the trial court that Gottlieb had to proceed in state court. On appeal to the Second Circuit, however, Carnival lost. Gottlieb can now prosecute his federal and state claims in federal court.
If he wins, Carnival is subject to $500 for each of the 1,000 faxes he received from Carnival, and possibly treble damages if Carnival acted knowingly and willfully under the federal law. Under a parallel law in New York, the Second Circuit notes he can recover $100 for each fax. The Circuit noted that the TCPA raises a federal question and that Congress did not divest the federal courts of jurisdiction over claims by private parties. It also cited to legislative history that supported federal jurisdiction.
While Congress may have thought that the TCPA would typically avoid federal jurisdiction because the amount in controversy was less than the $75,000 threshold to invoke federal jurisdiction, but Carnival brought disaster down on itself. Gottlieb's 1,000 faxes translate into damages of $500,000, and possibly as much as $1.5M, well over the jurisdictional limit.
That's an expensive travel agent fax campaign for a cruise line.
Kicking The Tires And Looking Under The Hood Of Professional Licenses
Certainly some large law firms have been duped by law school graduates claiming to be lawyers even though the graduates haven't passed the bar, and surely small firms, too. Most troubling, however, is the effect on the general public. New York is taking a step toward making unlicensed individuals claiming to be lawyers subject to the same criminal penalties as unlicensed individuals who claim to be doctors or other professionals, such as architects and accountants.
You might have thought that would already be the case. Impersonate a doctor in New York, and you're likely to be staring down a felony if this new bill passes. Impersonate a lawyer, however, and apparently it's now just a misdemeanor.
In California, an individual impersonating a lawyer can be charged with a misdemeanor, subjected to up to one year in a county jail and a $1,000 fine. Not much compared to some of the damage that can be done. In one case, a large law firm refunded almost $300,000 in fees incurred by a so-called lawyer who turned out not to be. Even entire firms from out-of-state have gotten in trouble. Maybe here it will become a felony too, instead of a slap on the wrist and a payment.
Want to check out your lawyer's license in California? Click on this link and type in your lawyer's name. Here are the links to check your accountant, architect, and your doctor and just about everyone else who could hold a license here.
Oh, and yes, I'm licensed, by the way.
Read That Job Description Carefully
Every once in awhile you run across something unbelieveable, but then again, it takes all of us to make a village, even a villiage idiot. It's just troubling to figure out which ones were the real fools here: the boyfriend, girlfriend, several unrelated women who "worked" for the couple or the police.
Let me explain.
A woman and her boyfriend in Palm Springs, California convinced several women living in the area that performing sex acts on the boyfriend constituted legitimate sexual therapy. The couple advertised for "caretakers," offered good pay and the girlfriend then "sold" the women on this "rehabilitation" program for her boyfriend due to his alleged spinal injury. The police took two years to solve this crime, and the boyfriend / girlfriend were arrested Friday.
The Court Writes Another Boring Indemnity Opinion - Or So They Say
Before reading this post, read this warning first, directly from the Court: "Indemnity is an inherently dull subject anyway, and reading even the most pellucid indemnity opinion generally takes much longer than reading an equivalent length opinion." In its footnote at the end of this quote, the court continued, "The comedy troupe Monty Python once made the subject of insurance -- insurance of all things -- the butt of a comedy skit. But we doubt that even comedians of their caliber would try to make “indemnity” the topic of comedy. It is a topic so deadly dull that it makes insurance look interesting. That is not to say, however, that the topic is not of vital importance in many commercial contexts, particularly in California’s construction industry."
You can't say I didn't warn you. In fact, MIPTC has covered indemnity opinions before, and adds this important new one to its treasure trove, at the expense of boring you to death. Indeed, the court "wades" through some twenty pages of its review of indemnity cases, and warns us again: "There is also the problem that, generally speaking, indemnity cases are hard to read and easy to forget." Here too, that is true. While the opinion is exceptionally well-written, it's 82 pages long, including a 10-page dissent. Nonetheless, it should be required reading for anyone dealing with this area of the law.
Forewarned is forearmed, so off we go.
Here's the root of the problem: If a subcontractor is found innocent of contributing to construction defects where a developer was sued by upset homeowners, then is the sub excused from the indemnity provision requiring the the subcontractor to defend and indemnify the developer where the developer is sued by homeowners for defects not caused by the subcontractor?
Hold on to your seats here if you're a subcontractor: the answer is yes, if the claim arises out of the subcontractor's work. Yep, you didn't do anything wrong, but you still have to pay. Before you get too riled up, check to see whether the indemnity provision in footnote 2 of this case is the same as yours. Most likely, however, it is, since it's a fairly commonly used indemnity provision.
You might not be too surprised, though, if you had read this language in the "almost no fault" indemnity provision you signed: you agreed to "...to insure [the developer's] interest from loss to the premises resulting from fire, earth settlement, earthquake, theft, embezzlement, riot or any other cause whatsoever..." It's that last part that got you into trouble. "any cause whatsoever" is very broad.
So broad, in fact, that the Court essentially interpreted it as a "almost no fault" clause, requiring you to defend the developer even if the developer got sued through no fault of yours, if and that's a big if, your developer was sued from something arising out of your work. Here, the developer was sued for window leaks, and the window manufacturer refused to defend and indemnify the developer. Even though the window manufacturer was ultimately found not liable for the window leaks - innocent/not guilty - the developer was found liable for other things. The window framer, on the other hand, was found responsible - to the tune of some $700,000 in damages.
Plus, the court found that there was no disparity between the developer and this particular sub (a manufacturer) - both were of substantial size and equally capable of negotiating the contract between them. That is not the case between small-time subs and big developers, and likely a similar indemnity provision in that single circumstance would turn out differently. Even so, the trial court found that the sub had to pay the developer's attorneys fees and costs, but did not require the sub to indemnify the developer since the sub was found to have done nothing wrong.
What appeared at first to be a double whammy was in fact, a fair decision given the language of the agreement entered into between the parties. The moral of the story? Be careful what you sign, and have good insurance.
If You Have To Walk A Mile For A Camel, Then Does Your Employer Have To Pay You?
If your employees have to park a long way from work and you offer voluntary transportation to and from the parking lot and your place of work, do you owe those employees wages for the time spent transporting them?
This question isn't one that many businesses have to answer, but as you can imagine, a big business or one with an place of work where there's a shortage of parking spaces will likely want to know the answer to this question. Right off the bat, I can think that ski resorts, agricultural operations, amusement parks, entertainment facilities (think downtown sports arenas), companies with off-site operations and a host of other businesses may be affected by enterprising employees seeking a bit of extra compensation.
That's the situation that Disney faced from an employee at Disneyland who parked a mile away from work and rode a company shuttle to and from the parking lot to the park. He wanted to get paid for that time.
The California Supreme Court for the most part already addressed this problem, and created a test: are the employees subject to the company's control ("forced" to ride the bus)? If so, then the employer must pay the employees for "hours worked." The Court noted that federal wage and hour law is different than California's, so you will need to check federal and other state law if your business is not in California or you are subject to federal wage laws.
Here, however, Disney offered its employees innumerable options to get to work, some that included being dropped off in front of the park, carpools that had closer parking spots and others that did not require use of the bus. For that matter, the employee could have walked or bicycled the mile between the parking lot and the park.
The Court held for Disney and against the employee, and the class of other employees he was trying to bring into the action, reasoning that since the employee had so many options, the employee wasn't forced to ride the bus as the only option between parking and work.
These Clothes Make Me Look Fat, So I Think I'll Sue The Designer
Regular readers will know that I'm being sarcastic with that headline, but the trouble with sarcasm is that it almost always has a grain of truth in it. This sarcastic headline refers to this grain of truth about a man who's suing Apple over of his iPod, claiming that use of the device might cause hearing loss in people who use it. He wants more warnings placed on the device.
Let's see. You stick small speakers so deep into your ears that no one else can see them, you turn up the volume so far that the only signal your brain sends to your eyes is that twenty-year old Maxell poster of the speaker facing the listener with his tie flying in the wind, the lampshade blowing and his martini spilling over, and you seriously think that you need to be warned your hearing might suffer?
Get real. I wonder if this is the same guy who filed suit against McDonald's claiming that fries made him fat?
A couple of disclaimers here: I don't own stock in Apple, I don't use a Mac (couldn't even turn one on if I tried), I don't own an iPod, but MIPTC's podcasts are listed on iTunes, presumably a subsidiary of Apple. So in some distant, far-removed way, I suppose, Apple tangentially supports my podcasts. Whew! I feel better, don't you?
Anyway, I'm a child of the 70's, and although we probably didn't, we claim to have invented loud rock 'n' roll music, so I don't have a lot of sympathy for the if-I-turn-up-my-music-loud-I'll-go-deaf iPod guy.
Now if he was listening to a Maxell cassette tape....
Pirates, Finders-keepers And Sunken Treasure
As we grew up, each of us at some time uttered the words, "Finders-keepers" after the joyous glee of discovering some previously unknown treasure with a value we perceived would make us rich, and all the while safe in the knowledge that if we invoked that mysterious incantation, title to our discovery would pass to us with all the certainty of our ownership good against the entire world of others who might lay an unjustified claim to it.
The Fourth Circuit, on the other hand, now tells us that we were just "a step away" from being labeled a pirate. Not the fanciful pirates we discovered at Disneyland, but the type of pirates the Court holds in disdain and who pillage and plunder the treasure of the high seas for their own profit. Unless, that is, if you choose to believe the Fourth Circuit over the French government.
What am I talking about? The R.M.S. Titanic, a British ship sailing under a British flag, owned by a British company, late of that British port, Southampton, that never made it to the United States, having struck an iceberg some 400 miles off Newfoundland, Canada, sinking to the ocean floor less than three hours after the collision. Think about that for a moment: English ship, sunk off Canada. What are U.S. Courts and French Courts doing trying to exercise jurisdiction over the salvage efforts of the goods aboard the ship? First and foremost, the salvagor, the RMS Titanic, Inc., submitted to the jurisdiction of the U.S. Court after obtaining title to some 1,800 artifacts in 1987 from a French Administrative Agency.
Only a pirate would know why. In fact, those were the words of the court in denying RMS Titanic, Inc. title to the items discovered at the bottom of the sea: "A free finders-keepers policy is but a short step from active piracy and pillaging," Judge Niemeyer wrote. The Court elected to respect the French ruling, but ultimately decided not to grant the salvage company full ownership rights to the sunken treasure.
The Court was troubled most about the salvagor's attempt to get two bites at the apple: finder's rights as a consequence of the artifacts in its possession and at the same time salvagor's rights over the articles at the bottom of the seabed that were not yet in its possession. Salvage rights, in admiralty law, are designed "to give[ ] potential salvors incentives to render voluntary and effective aid to people and property in distress at sea." As the Court properly noted, it's a little late for that incentive now, but instead noted that unless sunken treasure is ancient, and no one could possibly appear in court to lay claim to it, then the title to the goods lays with the original owner (now insurance companies), and the property is not deemed abandoned.
Therefore, since it's not abandoned, you can't apply the law of "finds" (finders-keepers) to the undersea property.
It makes sense, but it's too bad. I kind of liked being a pirate.