Feliberty v. Damon’s Empirical Analysis

Citation profile

4 federal appellate · 36 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 75 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““First, the duty to defend an insured is by its very nature delegable, as all the parties must know from the outset, for in New York — as in California — an insurance company is in fact prohibited from the practice of law. Accordingly, the insurer necessarily must rely on independent counsel to conduct the litigation. Second, the paramount interest independent counsel represents is that of the insured, not the insurer. The insurer is precluded from interference with counsel’s independent professional judgments in the conduct of the litigation on behalf of its client. Vicarious liability thus produces an untenable situation here: on the one hand an insurer is prohibited from itself conducting the litigation or controlling the decisions of the insured’s lawyer, yet on the other hand it is charged with responsibility for the lawyer’s day-to-day independent professional judgments in the ‘nuts and bolts’ of representing its client. Finally, in determining whether a new exception should be recognized, we note that an insured is not otherwise left without a remedy for a law firm’s claimed incompetence, and a law firm is not insulated from liability for wrongdoing; indeed, in the case before us, plaintiff has sought full recovery for his damages in a legal malpractice claim against the firm.””

   3 later decisions quote this exact passage · from the majority
   e.g. Aetna Casualty & Surety Co. v. Protective National Insurance Co. of Omaha · 631 So. 2d 305 - Aetna Cas. & Sur. v. PROT. NAT. INS.

2. “"We begin with the basic proposition that liability in negligence is normally premised on a defendant's own fault, not the wrongdoing of another person. The doctrine of vicarious liability, which imputes liability to a defendant for another person's fault, rests in part on the theory that — because of an opportunity for control of the wrongdoer, or simply as a matter of public policy loss distribution — certain relationships may give rise to a duty of care, the breach of which can indeed be viewed as the defendant's own fault. It was early postulated that a master had the ability, and the obligation, to control its servant, and would be liable for torts committed by the servant in the course of employment. The common-law distinction between `servants' and `independent contractors,' whose wrongdoing generally gave rise to no liability on the part of those who hired them, is comparatively recent. The reason most commonly advanced for the distinction is that an employer cannot control the manner in which work is performed by an independent contractor as it can the work of a servant; in these circumstances, the contractor itself is properly chargeable with preventing, bearing and distributing the attendant risks. The principle that an employer is not liable for the acts of independent contractors remains the general rule today, albeit with growing public policy exceptions; the Restatement lists approximately 20 exceptions to the rule."”

   2 later decisions quote this exact passage · from the majority
   e.g. Aetna Casualty & Surety Co. v. Protective National Insurance Co. of Omaha · 631 So. 2d 305 - Aetna Cas. & Sur. v. PROT. NAT. INS.

3. “"Plaintiff urges that the insurance company's contractual duty to defend him was a nondelegable duty, thus bringing his claim within an exception to the general rule of nonliability. A nondelegable duty has been described as one that the employer is not free to delegate to a contractor and `requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted.' In large part, whether a duty — or, perhaps more accurately, whether liability — is `nondelegable' turns on policy considerations. A duty is nondelegable when `the responsibility is so important to the community that the employer should not be permitted to transfer it to another.' ... . We have not previously recognized an insurer's obligation to defend its insured in the conduct of a litigation as a `nondelegable duty,' and we decline to do so in this case."”

   2 later decisions quote this exact passage · from the majority
   e.g. Aetna Casualty & Surety Co. v. Protective National Insurance Co. of Omaha · 631 So. 2d 305 - Aetna Cas. & Sur. v. PROT. NAT. INS.