Venting his frustration at the prospects for his case (like many small businesses, he made the “mistake” of taking the defendant-vendor at his word, and in hindsight, didn’t memorialize all of their understandings in writing as well as he could have) and the anticipated cost of litigating the breach of contract case in New York, the man responded as follows:

“This really, really sucks. Even more depressing is that this is the “American Way.” You know how it is done in the rest of the world? Well, for example, my mother in law in [Europe]  bit into a hard candy that she bought at a department store and chipped her front tooth, just last week. She complained about it to the manager and he said ‘Not to worry. Just you get that fixed and we’ll pay for it, whatever the cost…we take care of our customers here.’  Here they would first deny that the candy came from them, then deny that the candy caused the damage, then refer you to their legal department before even listening to whether the claim had any merit.”

It’s people like this gentleman that motivate me to do what I do. And he is precisely the type of person that the legal system (should be) designed to help.

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In Bailey v. Beechwood Arverne LLC, the plaintiff was injured when he was hit by a moving excavator machine while working for the general contractor at a construction site that was owned by the defendant. In response to the plaintiff’s personal injury lawsuit, the defendant owner in turn sued the general contractor, seeking to hold the GC liable not only in contractual and common law indemnification (i.e., “holding the owner harmless”), but in breach of contract based upon the GC’s failure to obtain the required insurance, and for the GC’s pro-rata share of the liability in the underlying personal injury lawsuit (a/k/a “contribution”).

So far, so good, right? Well, it turns out that there was one little, “minor” problem.

Although the owner assumed that the general contractor was obligated to procure insurance in the owner’s favor and to have the owner named as an additional insured on the GC’s policy (as is usually the case), the owner never bothered to make sure that the contract had this provision.

So what did the owner do instead? They tried to pull the wool over everyone’s eyes by trying to pass off another contract they had with the GC that related to completely different work, and which was dated after the accident as proof of the GC’s purported obligation to obtain insurance in the owner’s favor.

In my view, this conduct is not just shameful; since it – in bad faith – wasted the court’s time and resources, as well as that of the GC, this conduct should be deemed sanctionable. It is frivolous.

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Today’s New York Law Journal includes a decision from Judge David Schmidt in Simone v. Leibherr Cranes, Inc. which does not, at first glance, appear terribly significant: it held invalid a defendant’s refusal to answer interrogatories (written questions that must be answered under oath)  on technical and procedural grounds, and compelled the defendant to respond meaningfully to the interrogatories.

But reading between the lines of the decision yields a valuable lesson about this Judge’s (and presumably others’) thought process. In this case, which apparently arises out of an accident involving the malfunction of a crane, the defendants testified that they had certain manuals and procedures that were required to be followed regarding the operation of the crane. None of these materials were furnished prior to the deposition, however.

In lieu of deposing these witnesses again, one of the other defendants drafted a series of questions regarding these manuals and procedures that they wanted this defendant to answer under oath. Seems fairly reasonable, doesn’t it?

Well, rather than having their client answer the questions, the defendants’ attorneys repeatedly objected, forcing the other party to seek the Court’s intervention – not once, but three times.

I understand raising the objections one time, on the chance that the Court will side with you. But after losing the first time, why did they escalate a fight they should have known they wouldn’t win (and thereby jacking up their client’s legal bills as well) two more times?

It’s a frivolous defense.

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