Arbella was found to have committed unfair insurance practices against both its insured Anthony Caban, and the person injured by Caban in an auto accident, Angelina Dattilo. Datillo’s attorney sent Arbella a 30-day policy-limit demand letter, to which Arbella responded after five months by advising that it was seeking to determine if there were other claims likely to arise from the accident. Two months later, Arbella offered to pay its $ 20,000 policy limit in exchange for a release, which offer was rejected. Dattilo had filed suit at the expiration of the 30 day period stated in the demand letter. Shortly thereafter, Arbella informed Caban that he had exposure in excess of the policy limits, but incorrectly indicated that no formal demand had been received, and did not mention the policy-limit settlement demand. Dattilo and Caban reached a stipulated settlement of the suit for $ 450,000, and Caban assigned to Dattilo his rights against Arbella. The trial judge found that Arbella had failed to promptly respond to the demand letter and failed to promptly settle the case in which liability was clear, and that the failures were “willfully reckless, and in that sense, intentional.” Arbella was therefore subject to double damages on the $ 20,000 claim by Caban (plus double legal fees and expenses); and was subject to multiple damages on the $ 430,000 in excess of the policy limits, with interest running from the date suit was filed. The case was remanded solely to determine whether the damages should be doubled, or tripled.

Association Resources, Inc. (“Association”) sued Wall, their former executive, for breach of a non-compete agreement and breach of fiduciary duty. Wall counterclaimed against Association for breach of his employment agreement and violation of the Connecticut Wage Statutes pursuant to Association’s failure to pay Wall certain bonuses due under Wall’s employment contract. The trial court found for Wall and awarded him $282,827 on his counterclaim. Association appealed the award on the grounds that the bonuses should not count as “wages” under the Connecticut Wage Statutes, which allowed Wall to recover an award of double his unpaid wages plus attorney fees. There was no dispute that Wall’s employment contract with Association contained a provision entitling Wall to bonus payments and specifying how those payments would be calculated. Association refused to pay Wall his full bonus, calculated as a percentage of the company’s profits, for the second half of 2004. Association offered Wall $8,000 in lieu of his bonus, and he directed payroll to give him the $8,000 and count it toward the total bonus owed to him, which he claimed was in excess of $50,000. Wall signed a new employment contract for 2005 that did not include any bonus provisions, but insisted that he was entitled to yet another bonus under his old contract in the beginning of 2005. The Supreme Court first addressed Association’s argument that Wall’s claims belonged to his bankruptcy estate because he filed for bankruptcy in 2005 and did not disclose these claims to the bankruptcy court, leaving Wall without standing to bring this claim. The court reasoned that Wall had standing because his claims re-vested in him after dismissal of his bankruptcy petition, and the doctrine of judicial estoppel did not bar Wall’s claims because his failure to disclose them in bankruptcy was an error made in good faith. The court next addressed Association’s argument that Wall’s bonuses were not wages because they were tied to the profitability of the company and not to Wall’s labor or services. The court reasoned that the bonuses were wages, because Wall’s employment contract did not give Association discretion to either deny the bonuses or determine their amount. The court rejected the argument that the bonuses were tied solely to the profitability of the company and not to Wall’s efforts, because, as an executive, Wall was responsible for the profitability of his division. The court went on to affirm the trial court’s calculation of Wall’s bonuses and refused to find that Wall had accepted $8,000 in lieu of his second bonus or that Wall had waived his right to his third bonus by signed a new employment contract that did not entitle him to any bonuses. Ultimately, the court affirmed the trial court’s ruling in all respects, including Wall’s award of $282,827.

Bank of America (“BOA”) sued UMB Financial Services (“UMB”) in district court to enforce non-solicitation agreements with five of its former employees who left BOA to work for UMB. BOA believed that its employees had begun to “court” their old BOA clients on behalf of UMB. UMB responded to BOA’s suit by filing a motion to compel BOA to arbitrate their claims with the Financial Institution Regulatory Authority (“FINRA”). The district court refused to compel BOA to arbitrate because BOA is not a member of FINRA, and UMB appealed. The court began its analysis by noting that none of the contracts between BOA and its former employees contained an arbitration clause. The court then determined that the only arbitration agreement at issue was FINRA form U-4, mandating arbitration between all FINRA “members” and “associated persons.” All of BOA’s former employees who left for UMB were “associated persons,” except for one, and UMB was a FINRA member. BOA was not a FINRA member. Since BOA was not a member and consequently did not agree to subject itself to arbitration through FINRA, the court reasoned that UMB would have to provide some other rationale for why BOA should be compelled to arbitrate. UMB first argued that BOA should be estopped from refusing arbitration because BOA’s claims were “inextricably intertwined” with claims that Bank of America Investment Services (“BOAIS”) could bring against UMB, and BOAIS is a FINRA member. Applying Missouri law, the court rejected this argument because BOA’s although the claims may have been inextricably intertwined with employment agreements that BOAIS had also signed, they were not inextricably intertwined with BOAIS’ FINRA membership agreement. The court also refused to accept the argument that BOA was a third party beneficiary of BOAIS’ membership agreement with FINRA, because the membership agreement did not reference or directly benefit BOA in any way. Lastly, the court rejected UMB’s argument that the district court’s order enjoining arbitration violated UMB’s due process rights because they had no notice and did not have an opportunity to be heard on the matter. In rejecting this argument, the court relied on the district court’s inherent ability to protect its own jurisdiction over a dispute pending before it.

Advanced Bodycare Solutions (“Bodycare”) brought suit against Thione International (“Thione”) alleging that Thione had breached their agreement to supply Bodycare with products by providing defective products. Thione counterclaimed for the profits that it would have earned if Bodycare had fulfilled its purchasing obligations under the contract. A jury found in favor of Thione on Bodycare’s claims and awarded Thione $2.5 million in lost profits. On appeal, Bodycare argued that it was entitled to judgment as a matter of law because Thione had breached its agreement with Bodycare by providing defective products and because Thione repudiated the agreement by failing to provide Bodycare with “adequate assurances.” The court first ruled that Thione did not breach their installment contract as a whole because less than 20% of a $40,000 order consisted of defective products, and the contract was for over $9 million of products. The court also held that Bodycare was not entitled to adequate assurances, because it did not demand them prior to its own breach of the installment contract by failing to meet its minimum purchasing requirements. Bodycare next argued that Thione should not be entitled to lost profits because Thione’s right to terminate the contract was the sole remedy listed in the contract for Bodycare’s failure to meet minimum purchasing requirements. The court held that because the contract did not specify that Thione’s right to terminate was the exclusive remedy for Bodycare’s breach, the court would not construe it as such. The court next rejected Bodycare’s argument that the district court erred by admitting the testimony of Thione’s economic expert, because Bodycare’s argument, regarding the veracity of the expert’s data, went to the weight of the expert’s testimony, not the admissibility. Lastly, the court refused to find that the $2.5 million award was excessive. The circuit court affirmed the district court’s judgment in all respects.

Ruiz entered into an agreement with his orthopedist, Dr. Podolsky, to arbitrate all claims arising out of Dr. Podolsky’s treatment of Ruiz’ fractured hip. The agreement specifically stated that it would bind the spouse and children of Ruiz and would apply to claims for wrongful death and loss of consortium. Ruiz died eight days after his appointment with Dr. Podolsky, and Ruiz’ wife and children sued Dr. Podolsky for failing to adequately identify and treat Ruiz’ hip fracture, resulting in complications Ruiz’ eventual death. Dr. Podolsky attached a copy of the arbitration agreement along with his answer to the complaint and also filed a petition to compel arbitration. Both the trial court and the appellate court granted the petition as to Ruiz’ wife and denied the petition as to Ruiz’ children because they had not consented to arbitration. The Supreme Court began its analysis by confirming that the arbitration clause from the health care services contract complied with the statutory requirements of section 1295 of the California Code of Civil Procedure. The court also noted that section 377.60 of the California Code of Civil Procedure grants heirs and beneficiaries an independent cause of action for wrongful death claims, as opposed to a cause of action derivative of the decedent’s rights. Analysis of California case law revealed a conflict of authority as to whether a decedent’s spouses and children could be compelled to arbitrate wrongful death claims. The court ultimately concluded that section 1295 was designed to allow patients to sign arbitration agreements binding their heirs and beneficiaries. The court cited the impracticality of getting all heirs to sign an arbitration agreement, patient privacy concerns, and the need to prevent lawsuits that would vitiate the purpose of section 1295. Consequently, Ruiz’ children, along with his wife, were compelled to arbitrate their claims against Dr. Podolsky.

The Defendant, the State of California, appealed the district court's interpretation of a formula contained in a contract with the Plaintiff governing the number of “gaming devices” that California tribes are authorized to license. The Plaintiff and Defendants each provided their own interpretation of the formula and presented extrinsic evidence, but neither party's extrinsic evidence supported their interpretation of the formula. The district court adopted an alternative interpretation of the formula proposed by the Plaintiff, and granted summary judgment to the Plaintiff on that basis. The court of appeals affirmed the grant of summary judgment to the Plaintiff because California had not authorized the number of gaming devices allowed by the governing formula; however, it provided its own interpretation of the formula rather than applying the district court's interpretation. The court held that the parties' and the district court's differing interpretations of the provision showed that the contract language was ambiguous, and de novo interpretation of a provision was appropriate where its meaning is ambiguous. The court did not consider extrinsic evidence because it did not go to proving either party's interpretation of the contract. The court then provided its own interpretation of the governing formula designed to make the provision “lawful, operative, definite, reasonable, and capable of being carried into effect.” Since the court's interpretation of the formula dictated that California had not licensed the number of gaming devices authorized by the contract, the court upheld the district court's ordered remedy of establishing a draw to distribute the remaining licenses to eligible tribes.

The Defendant, Executive Risk Specialty Insruance Co. (“ERSIC”), appealed the district court's determination that it had an obligation to defend its insured, Capella University, Inc. (“Capella”), against a federal lawsuit brought by a former student. Capella cross-appealed, challenging the district court's determination not to award prejudgment and post judgment interest. Capella argued that its educators' professional liability insurance policy with ERSIC should cover a lawsuit brought for civil rights violations. The policy stated that ERSIC “shall have the right and duty to defend any Claim covered by this policy.” Nevertheless, ERSIC denied indemnity coverage for Capella's civil rights lawsuit and refused to defend against the claim. The district court awarded Capella damages for breach of contract and costs pursuant to ERSIC's refusal to provide a defense and indemnity against the student's claim. ERSIC argued that the policy excluded claims initiated in a formal administrative proceeding prior to the coverage period, and that the student's claim should be excluded because it was brought to the Office of Civil Rights before the ERSIC's coverage of Capella began. The court held that the proceedings before the Office of Civil Rights were not “formal,” so the coverage exclusion did not apply. In deciding that the proceedings before the Office of Civil Rights were not formal, the court cited the lack of regulations governing claims before the Office of Civil Rights, the Office of Civil Rights' limited investigative power, and the fact that plaintiffs are not required to exhaust administrative remedies with the Office of Civil Rights before filing a lawsuit. ERSIC also challenged the district court's award of more than $800,000 in fees and costs to Capella, arguing that it was barred by the doctrine of judicial estoppel. The court held that since the district court did not grant the amount of costs and fees that Capella requested but instead made its order based on a more accurate accounting of fees and costs, there was no risk of inconsistent court determinations threatening judicial integrity, so the doctrine of judicial estoppel did not apply. The court further held that 28 U.S.C. § 1961(a) entitled Capella to postjudgment interest. The court held that the issue of prejudgment interest was controlled by state law, and Minnesota Statute § 549.09 entitled Capella to prejudgment interest. The district court's holding as to liability and damages was affirmed, and the case was reversed and remanded for determination of appropriate postjudgment and prejudgment interest.

The Plaintiff, Fresh Coat, Inc., had contracted with the Defendant, K-2, Inc., to purchase K-2's synthetic stucco for installation in residential homes. The Plaintiff claimed that the Defendant had a duty to indemnify the Plaintiff for settlement payments to a homebuilder and homeowners who had done business with the Plaintiff and prevailed in a jury trial. The Texas Court of Appeals reversed the trial court's ruling as to indemnity payments to the homebuilder because the court agreed that the Defendant had no statutory duty to indemnify the Plaintiff in this instance because the Plaintiff would not have been liable to the homebuilder under the contract between the two parties. The Supreme Court upheld the award of indemnity for payments to the homeowners because it agreed with the Plaintiff that synthetic stucco was a “product” and installers of it were “sellers” as defined by the relevant indemnity statutes. The Supreme Court reversed the court of appeals’ decision denying indemnity for payments from the Plaintiff to the homebuilder. The Supreme Court held that the Texas Civil Practice and Remedies Code § 82.002(a), which imposes a duty upon manufacturers to indemnify sellers for losses arising out of a products liability action, applied to the present case. It also held that the Defendant failed to prove negligence or intentional misconduct by the Plaintiff, which would relieve the Defendant of its indemnity obligations under the statute. The court was not persuaded by the Defendant's argument that it should not be liable for contractual indemnity obligations that it was not a party to.

The Plaintiff in this case entered a settlement agreement with the tortfeasor pursuant to a claim against the tortfeasor for negligent operation of his motor vehicle while responding to a fire call. The Plaintiff argued that its settlement agreement with the tortfeasor, which released all claims except for claims related to excess insurance coverage, did not completely release the settling tortfeasor from liability. The district court held that because there was no excess insurance coverage, the tortfeasor was completely released from all liability. The district court also granted summary judgment to the tortfeasor's principal, the city fire department, because it reasoned that no claims could be brought against the principal since there were no claims remaining against its agent. The court of appeals reversed, holding that the settlement agreement merely limited the sources of recovery available to the Plaintiff. The Supreme Court held that the plain language of the operative settlement agreement released all claims against the tortfeasor except for those claims covered by Auto-Owners liability insurance. Because the parties conceded that Auto-Owners did not insure the tortfeasor, the court held that the settlement agreement did not reserve any claims and therefore released the tortfeasor from all liability. Since there was no basis for the fire department's liability other than the actions of its agent, and the agent had been released from all liability, the court applied the Minnesota common law rule that the release of an agent releases the principal from vicarious liability.

Brown injured his back while working for Kansas City Freightliner Sales, Inc. (“KCF”) in June, August, and September of 2007. After his September injury, Brown did not submit a written injury report and refused medical treatment. He called in sick from work on the four days following his injury, but did not seek medical treatment and instead managed his pain with medication from his two former back injuries. When Brown returned to work, KCF fired him because he had no remaining sick time or vacation time to cover his four day absence from work. Following his termination, Brown sought medical treatment and was diagnosed with cervical spinal injuries. He sued KCF for failure to reinstate and wrongful discharge under the Family Medical Leave Act (“FMLA”). The district court granted summary judgment in favor of KCF because it found that Brown did not suffer from a “serious medical condition” as defined by the FMLA and because he failed to give KCF adequate notice that he was suffering from a serious medical condition. The Eighth Circuit, in a de novo review, emphasized the notice requirements of the FMLA and found that Brown had failed to comply with them. First, the court found that Brown gave KCF notice of lumbar injuries through his written reports in June and August, but KCF had no notice of the cervical spinal injury that caused Brown’s absences in September and October. Second, the court found that Brown had failed to establish a connection between his lumbar injuries in June and August such that his employers would have had knowledge of his cervical distress. Accordingly, the court affirmed the granting of summary judgment in favor of KCF.

The Plaintiff, School Union No. 37 (“SU 37”), sued United National Insurance Co. (“United”), the provider of its Educator's Liability insurance, for indemnity of damages paid to a former student for his claim under the Individuals with Disabilities Education Act (“IDEA”). SU 37 also sued for damages under Maine's Unfair Claims Settlement Practices Act (“UCSPA”) alleging that United failed to timely settle the former student's claim on behalf of SU 37, in violation of the Act. The district court rendered summary judgment in favor of United on the indemnity claim and dismissed SU 37's UCSPA claim. On appeal, United argued that it should not be obligated to indemnify SU 37 for reimbursement of education expenses that SU 37 had to pay a former student pursuant to the IDEA because its insurance contract with SU 37 covered only claims for “money damages,” and the former student's claim for equitable financial relief was not a claim for “money damages.” The court reversed the grant of summary judgment in favor of United for three reasons. First, there was no Maine case-law construing the term “damages” as excluding monetary relief that is equitable in nature. Second, Maine has a liberal policy of construing insurance contracts in favor of the insured and against the insurer. Lastly, the court stated that if United intended its contract to exclude coverage for equitable monetary relief, it should have done so explicitly. The circuit court did, however, affirm the district court's dismissal of SU 37's UCSPA claim for failure to timely settle the former student's IDEA claim. The court held that even though United ultimately failed in pursuing two defenses to liability, United did not lack “any legitimate or reasonable basis” for denying coverage as would give rise to UCSPA liability.

One Beacon Insurance, LLC (“One Beacon”) provided liability insurance to the landlord of M & M Pizza (“M & M”). When one of M & M’s employees sued M & M’s landlord for slipping and falling on the premises, One Beacon settled the claim with the employee for $185,000 and brought a claim for indemnification against M & M. The court had to interpret a clause in M & M’s lease requiring M & M to indemnify their landlord for all losses arising out of their use of the leased premises. The court determined that, in order to merit indemnification, M & M’s use of the property would need to have a causal connection to, but not necessarily be the proximate cause of, their employee’s injuries. M & M argued that because the employee fell in the parking lot, they should not be responsible. The court rejected that argument because the employee fell while walking in from his designated parking spot after returning from a pizza delivery, which is one of M & M’s main operations. M & M next argued that, in order to be entitled to indemnification, One Beacon should have to prove that M & M’s landlord would have actually been liable to M & M’s employee. M & M argued that this was especially important because M & M did not attend the mediation conference where One Beacon settled with their employee. The court accepted M & M’s general argument, but disagreed with their proposed standard of proof. Rather than requiring One Beacon to prove that M & M’s landlord would have been liable to M & M’s employee, the court remanded this case to the trial court to determine whether One Beacon could prove the “potential liability” of M & M’s landlord. The court applied this more lenient standard because M & M had notice of One Beacon’s mediation conference with M & M’s employee, but chose not to attend. If One Beacon can carry the burden of proving the landlord’s potential liability to M & M’s employee, they will be entitled to indemnification from M & M.

Whittlestone entered into a 20-year contract with Handi-Craft to purchase and resell their products in 2006. Only two years into the 20-year contract, Handi-Craft unilaterally withdrew, causing Whittlestone to file a complaint against them seeking lost profits and consequential damages. Subsequently, Handi-Craft moved to strike the portion of Whittlestone’s complaint seeking lost profits and consequential damages, arguing that their contract explicitly barred the recovery of such damages. The district court held that the provision of the contract limiting available damages was enforceable and granted Handi-Craft’s motion to strike. The circuit court reviewed the issue of whether Federal Rule of Civil Procedure 12(f) authorized the district court to strike paragraphs from Whittlestone’s prayer for relief. The court recognized five categories of allegations that could be stricken from a pleading: (1) insufficient defenses, (2) redundant allegations, (3) immaterial allegations, (4) impertinent allegations, and (5) scandalous allegations. The court then determined that Whittlestone’s request for damages did not fall into any of the above categories. The court ultimately reversed the district court’s decision to grant Handi-Craft’s motion to strike because “courts may not resolve ‘disputed or substantial factual or legal issues in deciding…a motion to strike.’” The court remanded the case to the district court with specific instructions not to strike Whittlestone’s request for lost profits and consequential damages.

Consolidated Companies Inc. (“Conco”) was insured by Lexington Insurance Co. (“Lexington”) pursuant to a $25 million insurance policy covering losses from interruptions in business, extra expenses, and property damages. After Hurricane Katrina damaged Conco's warehouse and interrupted its business operations, Lexington attempted to pay Conco just over $3 million for all covered losses. Conco refused a small portion of this payment and demanded over $24 million in damages, including $12 million for “charges and expenses.” Conco subsequently brought a diversity suit against Lexington for breach of their insurance contract and for violating Louisiana's insurance bad-faith statutes. Conco was awarded damages for its losses, as well as statutory damages and penalties by a jury in the Eastern District of Louisiana. Lexington appealed the award to the extent that it represented charges and expenses that Conco would have incurred even without the hurricane damage. Lexington argued that the charges and expenses should be reduced to the extent that they were offset by Conco's income. The court interpreted the insurance contract seeking to determine the “common intent of the parties.” The contract contained a provision requiring Conco to mitigate its damages, if possible, by resuming operations. During the period that Conco accrued the $12 million in claimed charges and expenses, Conco had also earned $205 million from operations while incurring a total of $205 million in expenses. The court determined that this meant that any loss Conco had incurred as to the disputed charges and expenses was offset by Conco's earnings, and vacated the $12 million of Conco's award for those charges and expenses. Since the court eliminated $12 million of Conco's damages, it also remanded Conco's statutory award and penalty under the Louisiana insurance bad-faith statutes for recalculation based on the reduced award. The court affirmed the award for Conco's lost profits, concluding that Conco's failure to draw a bright-line between losses resulting from property damage and losses resulting from market conditions did not preclude recovery. Lastly, the court affirmed the district court's decision to remit $3 million of Conco's award to offset the $3 million payment that Lexington had initially tendered to Conco in settlement of Conco's claims.

The Plaintiffs, insurance companies (collectively “Royal”), sued the Defendants, Jerry's Sport Center and its subsidiaries (collectively “Jerry's), seeking reimbursement for the defending Jerry's in a lawsuit brought by the NAACP. Jerry's was a wholesale firearms dealer, and Royal provided its commercial liability insurance, including insurance against “bodily injury.” The insurance policy required Royal to pay all of the costs of defending the insured against claims and did not provide for reimbursement of defense costs in the event that a claim was later determined not to be covered by the policy. When the NAACP attempted to hold the firearms industry liable for “bodily injury” to its members, Royal advanced defense costs for Jerry's while Royal investigated whether this claim was covered by their policy. During the investigation period, Royal sent two “reservation of rights” letters to Jerry's stating that Royal reserved the right to reimbursement for the cost of defending Jerry's against an excluded claim, but also sending one letter stating that Royal would not seek reimbursement of these costs. Royal eventually determined that the claim was not covered, because the NAACP was seeking injunctive relief and damages to establish a monitary fund, and not damages to compensate individual members injured by Jerry's. The trial court and appellate court both granted summary judgment to Royal in its declaratory judgment action against Jerry's regarding its coverage determination. Royal then sought reimbursement of its defense costs, and the trial court awarded reimbursement of over $300,000 based on the theory of unjust enrichment. The appellate court reversed, holding that Royal's reservation of rights letters were an impermissible, unilateral modification of a written insurance contract. On appeal to the Supreme Court, Royal argued that the NAACP claim was never “potentially covered,” as evidenced by the declaratory judgments in its favor, and therefore never triggered Royal's duty to defend Jerry's. The court rejected this argument, holding that it is the insurer's duty to determine whether a claim is potentially covered at the outset. The court agreed with Jerry's that its policy with Royal did not contain any provision for reimbursement of Royal's defense costs, and rejected Royal's arguments that their reservation of rights letters created a new contract. The court refused to recognize a right to reimbursement outside the four corners of the insurance policy and likewise refused to grant Royal recovery on the theory of unjust enrichment.

When Health Care Management Partners (“HCMP”) was sued by the government for Medicare and Medicaid Fraud, they asked their insurer, Valley Forge Insurance (“Valley Forge”) to provide their defense. Valley Forge agreed to do so, but explicitly reserved the right to challenge their duty to defend HCMP at a later time and to recover defense costs if successful in their challenge. Valley Force did ultimately seek a declaratory judgment stating that they were not required to defend HCMP against the charges of fraud and requested full reimbursement of their defense costs. The district court entered judgment in favor of Valley Forge, awarding them reimbursement of their defense costs but denying prejudgment interest. Following this judgment, the parties cross-appealed to the circuit court. The Defendants argued that Valley Forge should not be entitled to reimbursement of defense costs based on their “reservation of rights” letter, and that there would have to be an express provision in the insurance policy providing for recoupment of defense costs in order for Valley Forge to be entitled to them. The court, applying Colorado’s substantive law, held that Valley Forge could be entitled to reimbursement because they reserved that right in a letter, and there did not need to be an indemnification clause in their contract with the Defendants. The court reasoned that Colorado had a policy of requiring insurers to advance funds in defense of claims that may not ultimately turn out to be covered, and conversely Colorado allows those insurers to reserve the right to reimbursement of defense costs through a letter and does not require an express provision in the insurance policy providing for reimbursement of defense costs. The court also declined to adopt a policy requiring insurers to wait for the resolution of a claim before seeking a declaratory judgment that the claim is not covered. Lastly, the court refused to award prejudgment interest to Valley Forge because it could not find a single Colorado case in which an insurer recovered prejudgment interest for costs advanced in defense of a claim that was not covered.

The court in this case was asked to decide whether Lumbermens Mutual Casualty Company (“Lumbermens”) made a meaningful offer of underinsured motorist coverage (“UIM”) to Cintas Corporation (“Cintas”). Lumbermens had been Cintas’ automobile insurer since 1989, and Cintas had adopted the policy of purchasing only the minimum uninsured motorist coverage required in each state where Cintas was doing business. At a renewal meeting in 2002, Lumbermens explained to Cintas that Cintas could purchase more than the minimum UIM coverage and could purchase UIM coverage even in states where it was not required by law. For operations in South Carolina, Lumbermens presented Cintas with a state-specific UIM worksheet that was not completely filled out, but nonetheless explained the purpose of UIM coverage and offered to provide it. Cintas, consistent with their risk management policy, purchased only the minimum UIM coverage required by law and inserted an endorsement into their insurance policy with Lumbermans explaining their risk management policy as to UIM coverage. Shortly after the renewal meeting, a Cintas driver was severely injured in a collision with an underinsured motorist. The driver, Ray, filed a declaratory judgment against Lumbermens contending that they never made a meaningful offer of UIM coverage to Cintas and accordingly, their policy with Cintas should be reformed to provide UIM coverage up to the policy limit of $5 million. The trial court granted summary judgment to Lumbermens, finding that the form that they provided Cintas regarding UIM coverage in South Carolina created a statutory presumption that Lumbermens had made a meaningful offer of UIM coverage. At the outset, the court noted that S.C. Code § 38-77-160 requires insurers to offer UIM coverage up to the limits of an insured’s liability coverage. The court concluded that Lumbermens was not entitled to the statutory presumption that they had made such an offer because the worksheet that they provided Cintas was missing information regarding commonly sold quantities of UIM coverage and the corresponding premium increase for each level of coverage. Nevertheless, the court held that Lumbermens had made a meaningful offer of UIM coverage to Cintas based on four factors: (1) the insurer’s notification process was commercially reasonable, (2) the insurer specified the limits of optional coverage, (3) the insurer intelligibly advised the insured regarding the nature of the optional coverage, and (4) the insured was told that the optional coverage was available for an additional premium. Although the court concluded that Lumbermens had not technically complied with factor (2) by specifically telling Cintas the limits of the optional coverage, it reasoned that reforming the policy between Lumbermens and Cintas to include coverage that Cintas understood and clearly did not want would contravene the public policy behind the four-factor test. Consequently, the court affirmed the trial court’s decision to grant summary judgment in favor of Lumbermens.

Plaintiff, which was a New Jersey corporation, sued the European Space Agency (“ESA”), a designated international organization headquartered in Germany, for breach of contract. Plaintiff had provided ESA with software, and alleged that ESA breached 2393731-01 several agreements by distributing plaintiff’s software to third parties and by failing to pay for certain software. ESA claimed it was immune from suit pursuant to the International Organizations Immunity Act, 22 U.S.C. § 288, ­et­ seq. (“IOIA”) enacted in 1945. The District Court denied ESA’s motion to dismiss, determining that while ESA was entitled to immunity, it had waived its immunity. Both parties appealed. The Court of Appeals found that the Foreign Sovereign Immunity Act of 1976 (“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq., is incorporated as a modification of the protection under the IOIA. Consequently, the Court of Appeals found that the “commercial activity” exception in the FSIA applied, and affirmed the denial of ESA’s motion to dismiss on the ground that ESA was not immune from suit based on the commercial transactions exception in the statute.

Plaintiffs filed suit seeking unpaid overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). After the parties negotiated a settlement, the Court entered an Agreed Order of Dismissal reserving for itself the issue of attorney’s fees and costs, as the parties had agreed. The Court noted the Grissom methodology, 549 F.3d at 320, cited by the lower court which provides in part that a court should “award some percentage of the remaining amount [after reductions for unsuccessful claims], depending on the degree of success enjoyed by the plaintiff.” (Emphasis added) Appellants argued that, under Grissom, the only appropriate “percentage” of the traditional lodestar amount that constituted a “reasonable fee” is one hundred percent. Court noted that although the district court arrived at a reasonable fee as mandated by Grissom, it took the somewhat circuitous route of calculating a “final” lodestar by relying on factor eight in the Kimbrell’s analysis, rather than by expressly taking account of Appellants’ unsuccessful claims and then taking a “percentage reduction” from the traditional lodestar, as contemplated by Grissom. Court concluded that, despite its imprecise methodology, the district court plainly acted consonant with Grissom.

Company and Union entered into a Return To Work Agreement (“TA”) that did not provide for arbitration of grievances except for certain claims during the Transition Period, followed by a long-term 2007 Collective Bargaining Agreement with a more expansive grievance and arbitration procedure. The TA governs grievances which arise during the Transition Period and are based on violations of the TA. The TA did not include a “clear and unmistakable” provision that substantive arbitrability of the Union’s grievances would be determined by an arbitrator. The TA explicitly exempted the TA from the 2007 Agreement grievance and arbitration procedures, which does clearly state than an arbitrator would determine the question of substantive arbitrability of claims arising under the 2007 Agreement. Court held the issue of substantive arbitrability of grievances under the TA must be determined by a court.

Plaintiff sued defendant with regard to statements made in New York which were posted to the internet and republished by news outlet across the country, including Texas. Plaintiff filed suit for defamation against defendant in Texas state court. Defendant removed the action to the United States District Court and moved to dismiss plaintiff’s complaint for inter alia lack of personal jurisdiction and failure to state a claim. On appeal, plaintiff argued only that defendant’s defamatory statements were sufficient to confer specific personal jurisdiction. Court examined whether defendant’s contacts with Texas were sufficient to confer jurisdiction under the 5th Circuit’s specific personal jurisdiction jurisprudence. Court observed that specific jurisdiction exists when “the defendant has ‘purposefully directed’ his activities at residents of the forum . . . and the litigation results from alleged injuries that arise out of or relate to those activities.” [citations omitted]. The non-resident’s purposefully directed activities in the forum must be such that he could reasonably anticipate being haled into court in the forum state. Specific jurisdiction also requires a sufficient nexus between the non-resident’s contacts with the forum and the cause of action. The “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. Relying upon the Supreme Court’s decision in Calder v. Jones, 465 U.S. 783 (1984), in which the Supreme Court held defendants “expressly aimed” their conduct towards California, the 5th Circuit held that Calder requires the forum must be the focal point of the story. Therefore, Calder requires that a plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show “(1) the subject matter of and (2) the sources relied upon for the article were in the forum state.”

When the Legislature amended section 440.15(5), Florida Statutes. See Ch. 2003-412, § 18, Laws of Fla., the Legislature removed the express prohibition on the apportionment of temporary benefits, medical benefits, and wage loss benefits. Court observed that the Legislature’s removal of the express prohibition on the apportionment of medical and temporary disability benefits reflects an intent to apportion all benefits, both before and after a claimant’s attainment of MMI because when the Legislature makes a substantial and material change in statutory language, it is presumed to intend a specific objective or alteration of law, unless a contrary indication is clear. Court held the revised statute unambiguously provides that “only the disabilities and medical treatment associated with a compensable injury shall be payable,” and it makes no exception for benefits provided before the attainment of MMI.

Five months after MERS filed for foreclosure, the Bank became the real party in interest when Accredited transferred the Saunderses’ mortgage and note to it. The Court held that although MERS is not in fact a “mortgagee” within the meaning of Maine’s foreclosure statute, 14 M.R.S. §§ 6321-6325, and therefore had no standing to institute foreclosure proceedings, the real party in interest was the Bank and the lower court did not abuse its discretion by substituting the Bank for MERS. The Court observed that, as it had not previously spoken on MERS’s standing to foreclose a residential mortgage, the prosecution of the case in its name is an understandable mistake to which Rule 17(a) can be applied. Further, the transfer of interest did not alter the cause of action or create any prejudice to the Saunderses.

High school lacrosse player sustained injuries during a game against defendant's high school and, while performing a "roll dodge" maneuver. Plaintiff alleged defendant negligently maintained the field and created a dangerous condition by using a sandy or soft material to fill ruts on the field. Lower court granted defendant’s motion for summary judgment dismissing the complaint based upon the doctrine of assumption of risk, finding that the condition of the field was open and obvious and that "plaintiff, as a matter of law, assumed the risk of being injured by falling and sustaining her serious injuries." This Court noted prior decisional authority which held that “a person who voluntarily participates in a sport or recreational activity assumes the risks which are inherent in and arise out of the nature of the sport generally and flow from such participation, including those risks associated with the construction of the playing surface and any open and obvious condition on it.” However, the Court also observed that participants in such activities will not be deemed to have assumed concealed or unreasonably increased risks (citations omitted). After observing that the application of the doctrine of assumption of risk is generally a question of fact to be resolved by a jury, the court found that the record reveals questions of fact as to whether the assumption of risk doctrine is applicable.

Plaintiff Brenda White filed a claim with the EEOC alleging she was subjected to sexually suggestive and derogatory comments as well as improper sexual conduct at her workplace. On July 8, 2008, the EEOC issued White a Notice of Right to Sue. On August 8, 2008, White filed Chapter 13 bankruptcy. Neither she nor the attorney who prepared the filing mentioned the harassment claim. On October 1, 2008, the bankruptcy court held a hearing to confirm White’s Chapter 13 plan. On October 2, 2008, White filed suit against the defendants, seeing $1.25 million in compensatory and punitive damages. The defendants moved to dismiss on the grounds of judicial estoppel. The 6th Circuit determined White’s harassment suit was barred. The Court noted White failed to disclose the harassment claim in her bankruptcy filings, and by doing so, asserted a position before the bankruptcy court, which that court accepted as true, that was contrary to her position in the district court. The Court also found White had a motive to conceal the harassment claim from the bankruptcy proceeding, and that her efforts to correct her omission to the bankruptcy court were insufficient to save her claim.

In 2002, Georgia Pacific (“GP”) designed the first hands-free electronic paper towel dispenser, the enMotion. In conjunction with that design, GP also designed a special, non-standard 10 inch paper towel to be stuffed in the enMotion dispensers. It sought to create a branded-dispenser situation akin to a Coca-Cola soda fountain, one where the user expects the product dispensed to be a genuine product of that manufacturer. GP leased the enMotion dispensers to distributors, and allowed them to sublease the machine to end-user customers approved by GP. That lease contained a prohibition that only GP branded towels were to be used in the enMotion dispensers. In 2004, Von Drehle (“VD”) designed a non-standard 10 inch paper towel roll to be stuffed in the enMotion. Because the VD towel was “slick and scratchy”, as opposed to the “soft-fabric like” GP towel, GP sued VD for unfair competition in violation of the Lanham Act, contributory trademark infringement, unfair competition in violation of North Carolina law, and tortious interference with GP’s contractual relationships. VD counterclaimed for violation of North Carolina’s Unfair and Deceptive Trade Practices Act. The district court granted VD summary judgment on GP’s causes of action, and granted GP summary judgment on VD’s cause of action. The 4th Circuit noted GP’s first three causes of action all depended on whether it offered sufficient evidence of contributory trademark infringement by VD. The Court found GP had offered sufficient evidence—in the form of studies concerning branding confusion and testimony from VD personnel regarding confusion and potential harm created by stuffing VD towels into a GP dispenser—to survive summary judgment. It therefore reversed the district court’s grant of summary judgment to VD. “Stuffing” is a term of art in the paper towel dispenser industry

This action arose out of a truck-on-truck accident at a rest stop. Plaintiffs, the Fredericks, brought suit for injuries resulting to Terry Frederick, who was in the sleeping berth of his tractor-trailer when it was struck by a Swift Transportation truck. At trial, the jury returned a verdict in favor of the Fredericks for $23,500,000, which was reduced to $15,275,000 for comparative fault. Both sides appealed, with Swift appealing several evidentiary rulings and jury instructions, and the Fredericks appealing the court’s denial of pre-judgment interest. With regard to the jury instructions, the 10th Circuit ruled that the trial court’s instructions regarding respondeat superior, FMCSR violations, and the Swift driver’s promotion were appropriate. The 10th Circuit also ruled the trial court did not err in admitting testimony from plaintiff’s experts, finding the trial court adequately performed its gatekeeping role under Daubert and Rule 702, and in excluding portions of Swift’s expert’s testimony, which the trial court found were outside the expert’s scope of designation. As to Swift’s final issues on appeal, the 10th Circuit determined the trial court had not abused its discretion in excluding evidence that Terry Frederick did not use a sleeping berth safety net, and in admitting evidence of Swift’s driver’s prior license suspensions, drug use and convictions. The 10th Circuit likewise determined that, in construing New Mexico law, the trial court had appropriately refused to grant the Fredericks pre-judgment interest.

Plaintiff Antoine Khoury is an interventional cardiologist. His catheterization lab in Minnesota contained an Integris BH5000 biplane system, consisting of a monitor bank and a radiation shield, installed by defendant Philips. When Philips installed the BH5000, it installed the monitor bank and the radiation shield on the same ceiling track, which allowed the unit to slide across the lab. While performing an angiogram, a nurse moved the monitor bank which, because the two BH5000 components were on one track, caused the radiation shield to move toward the patient. Dr. Khoury grabbed the radiation shield to keep it from striking the patient, and felt pain radiating from his spine when he did so. While the courts had some difficulty ascertaining his exact theory of recovery, the 8th Circuit determined Dr. Khoury’s complaint alleged the design of the single track system on which Philips installed the BH5000 was unreasonably dangerous. Khoury hired a Dr. Andres, an ergonomist by training, as his expert witness. The 8th Circuit affirmed the district court’s exclusion of Dr. Andres’ testimony, reasoning that, as an ergonomist, Andres was not qualified to testify on the design issue. The Court noted Andres had no training in the design of laboratories or devices like the BH5000, and that Khoury was not claiming an ergonomic failing led to his injury. The 8th Circuit also agreed with the district court that, since Andres was not qualified pursuant to Rule 702, Khoury could not prove his claim, and summary judgment for Philips was proper.

Schaper worked as a driver for Fil-Mor Express, a company that transported flattened cardboard boxes for Weyerhaeuser, a job in which he had worked for several years. On the day of his death, Schaper transported a load of fifty-two bundles of cardboard boxes, which weighed approximately 372 pounds per bundle, eleven miles from the manufacturing facility to a warehouse. Prior to departing the manufacturing facility, a Fil-Mor spotter would visually inspect the load for stability, and the driver was expected to inspect the load as well. After Schaper arrived at the warehouse, a worker noted a bundle lying on the ground outside Schaper’s trailer. Schaper was found unconscious in the cab of his truck. Plaintiff, Schaper’s wife, believed Schaper had been struck by the falling bundle, leading to his death. The 8th Circuit affirmed the district court’s grant of summary judgment because Plaintiff had not carried her burden of showing, pursuant to US v. Savage Truck Line, Inc., a latent defect in the load which led to the accident. It noted Schaper was an experienced driver, and should have been more capable of detecting loading defects that an inexperienced driver. The Court also noted Weyerhaeuser had made no assurances regarding the safety of the load, and Fil-Mor employees had inspected each load to make sure it was stable and safe. Finally, the Court rejected Plaintiff’s res ipsa argument for two reasons: 1) the load was not in Weyerhaeuser’s exclusive control, as demonstrated by the inspection by the Fil-Mor spotter; and 2) there were other possible causes of Schaper’s injury not reasonably excluded by the evidence at trial.

In an email, Brown & Brown offered plaintiff Mathis a job with a guaranteed salary of $110,000 for the first year, and with a promise to “apply the appropriate salary as a sales manager to insure that the second year will be $120,000 earnings…. [I]f you are meeting your goals and achievements, doing your part, we will make sure we do our part and you are taken care of going forward.” Mathis accepted and began work on September 24, 2007. Two days later, he signed an Employment Agreement which provided, among other things, he was employed at will. When his salary was reduced and he was ultimately terminated, Mathis filed suit. First, the South Carolina Supreme Court found Mathis had a term contract for two years, based on the emailed offer. Second, the Court also held the post-hire Employment Agreement was not supported by additional consideration and, therefore, could not alter the terms of the contract. Third, the Court held Mathis was not estopped from raising his claims by continuing to work, since he noted his objections to the salary reduction before he was terminated. Fourth, the Court held Brown & Brown violated the South Carolina Payment of Wages Act by withholding wages, but also held that the Act did not apply to prospective wages.

California’s civil code permits the trier of fact to triple a monetary award of fines, penalties, “or any other remedy the purpose or effect of which is to punish or deter” in actions filed by senior citizens to redress unfair competition. In this action, a group of senior citizens sued National Western Life Insurance Company alleging deceptive practices in the sale of annuity contracts. The plaintiffs sought restitution, the only monetary remedy available under the statute pursuant to which they filed suit. The California Supreme Court refused to allow the plaintiffs to recover treble damages to the extent they were seeking restitution. The Court reasoned that the enumeration of situations in which an award could be tripled applied only to awards of remedies in the nature of a penalty. Since restitution is simply returning to a plaintiff that which is his or hers, it is not a penalty, and is therefore not an award which can be trebled under California law.

Price filed a complaint in district court against Zamora asserting tort claims arising out of an automobile accident. Because the amount at issue was less than $40,000, the case was referred to Nevada’s nonbinding arbitration program as mandated by statute. After a hearing, the arbitrator awarded Price $18,000. Zamora then requested a new trial, which was conducted as part of the short trial program. The short trial jury also awarded Price $18,000, and the judgment was subsequently entered on that verdict by the judge pro tempore. The Court found that under the statute, civil actions for damages filed in district court that do not exceed $50,000, as the amount in controversy, must first be submitted to nonbinding arbitration. This requirement is mandatory for district courts in any judicial district with populations of 100,000 or more and permissive for Nevada’s remaining judicial districts. Within 30 days after an arbitration award is served on the parties, any party may request a new trial. If this occurs, the new case is assigned to the short trial program. The Court found that pursuant to the statute, the arbitration award be admitted into evidence during the new trial. The statute also provides a mandatory jury instruction that provides guidance to the jury regarding its consideration of the arbitration award. The Court held that the award is mere evidence which the jury is free to accept or reject.

Colleton Preparatory brought suit alleging claims for negligence and violation of the South Carolina Unfair Trade Practices Act. All the claims arose from alleged damage to the roof trusses and sheathing on several Colleton buildings allegedly caused by fire-retardant substances produced and sold by the Defendants or their predecessors-in-interest. Plaintiff sued the wrong defendant by suing Hoover Wood. Colleton filed an amended complaint substituting Hoover Universal for Hoover Wood. The entry of default against Hoover Wood was dismissed and Hoover Wood itself was dismissed without prejudice. Colleton served a copy of the summons and amended complaint on Hoover Universal by certified mail through service on the latter’s registered agent and received a certified mail receipt showing that the service agent had accepted service. However, the service agent negligently failed to forward the suitpapers or otherwise notify Hoover Universal of the existence of the lawsuit. As a result of this, Hoover Universal failed to file a timely answer to the amended complaint. The Court held that the district court rightly denied the motion to vacate on four of the six factors identified by case law as informing the exercise of discretion whether to vacate an entry of default weighed significantly in favor of Hoover Universal. As to the fifth factor, the district court found that any further delay in the action would unduly prejudice Colleton which the Court found highly suspect. The Court held that in the context of a motion to set aside an entry of default delay in and of itself does not constitute prejudice to the opposing party. The issue is one of prejudice to the adversary, not merely the existence of delay. Overall, the Court held that the district court abused its discretion when, in the face of the Court’s time-worn commitment to the resolution of disputes on their merits, and in light of overwhelming evidence supporting “good cause” to vacate the entry of default under FRCP 55c, it relied too heavily on the Park Corp. case in denying Hoover Universal’s motion to vacate the entry of default.

American Airlines terminated Casanova’s employment as a baggage handler. He sued contending that the airline had retaliated against him for claiming workers’ compensation benefits. Illinois deems such retaliation tortious. A jury returned a substantial verdict and the district judge denied the employer’s post-judgment motions. The judgment is defective-it states the jury decided in plaintiff’s favor but omits the relief-but nonetheless appealable because the litigation plainly is over in the district court. Casanova did not apply for workers’ compensation until several months after he had been fired, but he contends the airline knew the application was forthcoming. The Court held that Casanova’s case should never have reached a jury. Undisputed facts require judgment in the employer’s favor. It found that plaintiff’s counsel and the district judge had confused necessary with sufficient conditions. Casanova’s claim of injury, which implied that sooner or later he would want workers’ compensation benefits, was a necessary condition of discharge. But it was not a sufficient condition.

Plaintiffs brought suit in the United States District Court for the Southern District of New York against Defendant. The amended complaint alleged violations of sections 32(1) and 43(a) of the Trademark Act of 1946, 15 U.S.C. § 1051, et seq., and New York General Business Law § 349, as well as common law trademark infringement and unfair competition. Plaintiffs moved for summary judgment on liability and Defendant cross-moved to dismiss for lack of personal jurisdiction. The district court granted Defendant’s motion and denied as moot Plaintiffs’ motion seeking a judgment of liability. Because the assertion of personal jurisdiction over Defendant comports with New York’s long-arm statute, N.Y. C.P.L.R. § 302(a), and with due process, the Court held that Defendant’s single act of shipping an item into New York, combined with the affiliated business’s substantial activity involving New York, gives rise to personal jurisdiction over Defendant.

Prior to Katrina, Stewart insured its properties and businesses with three layers of insurance. The primary layer, issued by Lexington Insurance Company, provided all risk coverage up to $10 million, including $10 million in flood coverage. The first excess layer, issued by Lloyd’s of London, provided $15 million of all risk coverage, also including $15 million in flood coverage, excess to the first $10 million provided by Lexington. The second excess layer, issued by RSUI, provided a coverage limit of $225 million, excess to the $25 million provided by the first two layers. Both the Lloyd’s and RSUI policy contained “following form” clauses adopting the terms and conditions of the Lexington primary policy. During and after the storm, Stewart’s properties suffered heavy damage from wind and flood. It was not easily determinable what portions of the damage were caused by wind, flood, or some combination of the two. After Katrina, Stewart sought to recover from all three insurers for damage caused by wind and flood. Both Lexington and Lloyd’s paid the full balance of their policies, but RSUI and Stewart were unable to resolve the claims. The Court found that central to their dispute was whether the RSUI policy covered damage caused in whole or in part by flood. RSUI contended that the policy excluded liability for all flood damage and that to the extent the policy covers any flood damage, it was limited by the anti-concurrent causation clause to damage caused exclusively by flood and not in conjunction with another peril, such as wind. Stewart claimed that the RSUI policy adopted the limits set forth in the Lexington and Lloyd’s policies, covering any of the $25 million in flood coverage unpaid by Lexington and Lloyd’s and that the clause only operated above the $25 million limit. The district court found that the RSUI policy covered by to $25 million in flood damage, subject to reduction based on payments for flood damage by either Lexington or Lloyd’. The district court then found the clause barred any recovery for damage jointly caused by wind and flood, although the policy permitted recovery for damage caused by wind or flood exclusively (up to the $25 million limit for flood damage). The Court found that the RSUI policy was an excess layer insurance policy with a following form provision. This provision made RSUI subject to the same warranties, terms and conditions as are contained in the primary insurance policy which covers for flood. The Court held that the district court erred in finding that the clause barred any recovery for damage jointly caused by wind and flood, although the policy permitted recovery for damage caused by wind or flood exclusively (up to the $25 million limit for flood damage). It held that in the clause at issue, such clauses permit parties to contract around common-law causation rules such as efficient proximate causation. Under this causation rule, an insured may recover for damage caused jointly by an included and excluded peril if the included peril is the dominant and efficient cause of the loss.

Feliciana Corporation, Duncan Underwood, Everett DeSha, and the Seeligson Oil Company owned a Texas oil well named Striebeck No. 1. They designated HOC as the operator of the well, and HOC hired Bay Rock to supervise and manage the drilling of the well. Under Bay Rock’s supervision, Striebeck No. 1 suffered a blowout, causing property damage and the loss of gas from the well. After the blowout, Bay Rock contacted Cudd Pressure Control to obtain well-control services. HOC incurred the costs to control, repair, evaluate, and complete the well after the blowout. HOC had a well-control policy with St. Paul, and St. Paul paid the costs incurred by HOC pursuant to a settlement agreement after HOC demanded coverage for the costs. St. Paul and the above brought suit in Texas state court, accusing Bay Rock of negligently causing the blowout. A state court jury found that Bay Rock was negligent and awarded St. Paul and the above 1) the costs incurred to control the well; 2) the costs incurred to repair, evaluate, and complete the well; and 3) the value of the gas lost in the blowout. The San Antonio Court of Appeals affirmed and the Texas Supreme Court denied Bay Rock’s petition for review and its petition for rehearing. Bay Rock had a commercial general liability policy and an umbrella policy with Mid-Continent. Mid-Continent defended Bay Rock in the state court action under a reservation of rights letter. After judgment was entered against Bay Rock, Mid-Continent brought this diversity action in federal court seeking a declaration that Bay Rock’s damages were not covered by the policies. The district court granted summary judgment for Bay Rock and denied Mid-Continent’s summary judgment. The district court found that the issue of St. Paul’s right of subrogation was litigated in the state court action and that Mid-Continent was barred from re-litigating it. Under Texas law, a party’s “legal authority to sue or be sued, is an issue” that cannot be attacked in a separate proceeding. The Court held that an insurer in a coverage case will be barred from re-litigating a particular issue from the underlying liability case if: 1) the issue raised in the coverage suit was raised and determined in the liability suit; 2) the issue determined in the liability suit was essential to the judgment in the liability suit; and 3) the necessary requirement of privity exists between the insurer and the insured. The requisite degree of privity between an insurer and its insured can exist if: 1) the insurer controlled the insured’s defense in the liability suit; and 2) the insurer and the insured do not hold conflicting positions with respect to the issue determined in the liability suit. The Court found that Mid-Continent controlled Bay Rock’s defense, and its position with respect to St. Paul’s subrogation right is the same as Bay Rock’s position. It concluded that Mid-Continent had privity with Bay Rock and was collaterally estopped from re-litigating the right of subrogation. Overall, the Court found that Mid-Continent had failed to create a triable jury issue as to whether any of the damages awarded against Bay Rock were because of physical injury to tangible property and that the district court did not err in concluding that the damages at issue were related to physical injury to tangible property and therefore were covered by the policies.

Plaintiff brought an appeal from the Order of the district court that adopted the Report and Recommendation of the magistrate judge and granted the motion of the Defendants for a judgment on the pleadings pursuant to Rule 12c, resulting in the dismissal of Plaintiff’s suit grounded in the Fair Debt Collections Practices Act, 15 U.S.C. § 1692. Plaintiff claimed that the conduct of First Resolution as assignee of Plaintiff’s credit card debt, and of the remaining Defendants as attorneys-at-law representing First Resolution in filing a state court suit against Plaintiff styled as a suit on a sworn account, violated the Act. The magistrate concluded that even when considering all of the well-pleaded facts in the complaint as being true, the filing of a suit on account to collect a credit card debt did not constitute either a false or misleading representation or one that was so harassing, oppressive, or unconscionable that it was actionable under the Act, even if, arguendo, the use of a suit on account of a credit card debt did not meet the necessary requirements of Texas’s Rule 185 or any other such rules or regulations. The Court affirmed this findings and held that the case was properly disposed of by the district court.

Plaintiff sought to purchase a houseboat and enlisted the help of his son-in-law Tim Shelton. Shelton contacted local marinas and inquired about houseboats for sale. Hastings Bay Marina informed Shelton there were several boats for sale and they could be viewed. Shelton was told to contact Sean Gossage, Harbor Master at the Yacht Club, when he arrived to view the boats. Gossage’s duties including renting slips, pumping fuel, keeping the grass and grounds cleaned, and hauling boats in and out of the water. The Lovie Dovie was the second boat to be inspected. The interior cabin was found to be locked and Gossage told Shelton that he would break into the boat to allow them to inspect the internal cabin, to which Shelton protested. Gossage informed the group that such actions were okay. After entering and inspecting the inside cabin, Boudwin wished to inspect the bottom of the boat. Upon locating the hatch cover, Shelton initially tried to pry the cover loose but was unsuccessful. Gossage was able to remove the hatch cover shortly thereafter. After inspecting the boat’s instrument control panel, Boudwin accidentally stepped into the hole where the hatch cover was located and sustained physical injury after falling through the opening. Boudwin purchased the Lovie Dovie after the accident. Hastings Bay entered into a slip agreement with Boudwin’s wife. Boudwin failed to make payments for the slip rental and Hastings Bay obtained a marina operator’s lien on the boat. They sold the boat to satisfy Boudwin’s outstanding debt to the marina. Boudwin filed a negligence action against Hastings bay, joining the Lovie Dovie in rem. Hastings Bay answered and counterclaimed for abuse of process and tortuous interference with contract, claiming the lawsuit was intended to interfere with the transfer of the boat and was an attempt to regain possession of the boat. Hastings Bay filed a motion for summary judgment contending it could not be liable because it did not have ownership, possession, or control of the boat. This was granted by the district court. The Court held that plaintiffs seek to hold employers responsible for the negligent acts of their employees through the doctrine of respondeat superior. Under the doctrine, an employee’s tortuous conduct may cause the employer to be held liable if the conduct of the employee or agent occurred within the scope of his employment. In determining whether an employee acted within the scope of his employment, Arkansas courts look to whether the employee is acting in the interests of his employer as opposed to acting solely in his personal interest. The Court found that Gossage was not acting within the scope of his employment when he showed the Lovie Dovie to Boudwin in order to gauge his interest in purchasing the boat. It was undisputed that Hastings Bay did not own, possess, manage, or control the boat; nor was it in the business of selling boats. Gossage was unequivocal in his testimony that he was showing the boat for sale as a favor of the then-owners. The Court reasoned that Gossage’s actions were not taken for the benefit of Hastings Bay and his conduct fell outside his scope of employment because his position as harbor master did not involve selling or brokering sale of the independently owned vessels at the marina. The Court further held that Gossage did not maintain actual authority because Hastings Bay did not direct him to engage in the sale of the boat, much less break into and enter the vessel in order to accomplish such a purpose. Boudwin failed to satisfy the elements necessary to support a showing of apparent authority. To do this, Boudwin had to demonstrate 1) Hastings Bay held Gossage out to the public as possessing sufficient authority to embrace the particular act in questions, or knowingly permit him to act as having such authority; and 2) that Boudwin knew of the facts and acting in good faith had reason to believe that the agent possessed the necessary authority. Boudwin failed in both of these requirements. The Court found that the district court was correct in that no reasonable person would have believed Hastings Bay authorized Gossage to break into the boat in order to show Boudwin the inside cabin, and therefore Boudwin cannot meet the second element.

Defendant appealed by delayed leave granted from an order dismissing Plaintiffs’ complaint for uninsured motorist benefits under an auto insurance policy issued by Defendant. The Order directed that Plaintiffs’ claims be submitted to arbitration, subject to Defendant’s right to appeal an earlier order denying its motion for summary disposition. Plaintiff brought suit after an auto accident in June 2006. Plaintiffs claim they were run off the road by two racing vehicles that did not stop and cannot be identified. One of the racing cars lost control and spun off onto the west side of the road kicking up debris and boulders and rocks. Plaintiffs swerved to avoid this car and ran off the road then going up on the rocks and hitting a fence and curb. When they struck the fence post, some of the car windows were broken and the airbag deployed. The policy in question required that direct physical contact be made with the insured or a motor vehicle which an insured person is occupying. The trial court held that it did not see how the insertion of the word “direct” in the clause changed anything with regard to being provisions relative to physical contact with the uninsured vehicle. The Court held that the district court erred in not granting Defendant’s motion for summary judgment. The Court found that the policy did not define the word “direct”. It held that where words are not defined in a policy, they are to be given their commonly used meanings, and it is appropriate to consult a dictionary to determine the common meaning of a word. It held that pursuant to this interpretation, the policy made clear that indirect contact, such as the contact that occurred, was insufficient to trigger UIM benefits.

Before her release from prison, Plaintiff was informed by the New York Department of Corrections that she would be subject to a five year period of post-release supervision. Such supervision had never been mentioned in her plea agreement nor was it imposed by the judge. It was prescribed administratively by the Department of Corrections pursuant to a New York statute that required that sentences for specified violent felonies be accompanied by a mandatory term of post-release supervision. The district court granted defendants’ motion to dismiss an action brought by Plaintiff pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment. The dismissal was granted on the ground that each defendant was entitled to qualified immunity because the right that Plaintiff asserted was violated was not clearly established at the time of the alleged violation. The Court held that it is now clearly established that such an administrative imposition of post-release supervision is unconstitutional. The Court found that such an imposition was constitutional at the time of the imposition and that Plaintiff failed to plead sufficient facts to set forth a viable claim that the defendants violated clearly established constitutional law by failing to take action to remove her administratively-imposed post-release supervision or to release her from custody.

Plaintiff brought intentional infliction of emotional distress claims which the district court found was preempted under the ADA. The claims arose from a conversation she had with a Northwest agent, in which the agent allegedly stated that “the U.S. State Department would not permit [her] to travel . . . .” Plaintiff argued that the district court incorrectly held that this conversation and the resultant claim were sufficiently related to Northwest’s provision of “services” to trigger preemption. The Court held that the preemption provision of the ADA provides that a state “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier . . . .” 49 U.S.C. § 41713(b)(1). The Court reasoned that the U.S. Supreme Court has interpreted the preemptive effect of the ADA broadly and that any state law, including state common law, “having a connection with or reference to” airline prices, routes, or services is preempted unless the connection or reference is “too tenuous, remote, or peripheral.” The Court ruled that the conversation fell within the definition of airlines services. It rejected Plaintiff’s contention that her claim was tenuous, remote or peripheral with respect to Northwest’s provision of service because it only addresses the manner in which she was refused service rather than the fact that service was refused. Northwest’s decision to deny Plaintiff boarding cannot be divorced from its stated reasons for denying her boarding. As to Plaintiff’s breach of contract claim, the Court held that the only way to assess whether an airline breached its duty is to determine whether it refused to transport a passenger who was fit for travel. To make this determination, the court would be required to reach beyond the contract and interpret a variety of external laws that were not expressly incorporated in the contract. The Court found that calling the Schengen Agreements “self-imposed” obligations of Northwest and Plaintiff is a large stretch from the simple references to the need to comply with all applicable law addressed in the limited portions of the contract contained in the record. Whether or not Northwest advised its passengers of the need to comply with international law, such law would apply. The Court further held that the airline’s obligations under the Schengen Agreements are not self-imposed and the first prong of the Wolens exception was not met. As Plaintiff’s own counsel conceded, Plaintiff’s claim was preempted if the Wolens exception does not apply and her state law claim is barred.

Kraft Foods requires the employees who prepare meat products at its Oscar Mayer plaint to wear safety gear such as steel-toed boots and hard hats, plus a smock that keeps other garments clean. Workers must wear hair nets and beard nets to protect the food from dandruff and other contaminants. It takes each worker a few minutes at the start of every day to put these items on and a few more minutes at the end of the day to take them off. Kraft Foods and Local 538 of the United Food and Commercial Workers Union have agreed that this time is not compensable. Under 29 U.S.C. § 203(o), unions and management are allowed to trade off the number of compensable hours against the wage rate; the workers get more, per hour, in exchange for agreeing to exclude some time from the base. Plaintiffs wanted the donning and doffing time included and at the higher hourly rate that the union obtained by agreeing to exclude these few minutes a day. The district court concluded that donning and doffing time counts toward the workweek and overtime rates if state law so provides. Kraft Foods conceded that Wisconsin requires time spent donning and doffing safety gear to be compensated at the minimum wage or higher, and that this time counts toward the limit after which the overtime rate kicks in. Kraft Foods contended that § 203(o) embodies a federal decision to permit a collectively bargained resolution to supercede the rules otherwise applicable to determining the number of hours worked. The Court found that § 203(o) states exactly how far such a determination goes in that section 206 sets the federal minimum wage per hour worked. Section 207 specifies how many hours a person may work in a given period before overtime pay commences. These are rules of federal law. The Court held that states are free to set higher hourly wages or shorter periods before overtime pay comes due. The Court found that Wisconsin law requires that a collective bargaining agreement (CBA) be ignored to the extent that it sets lower wages or hours than state law specifies. Nothing that labor and management put in a CBA exempts them from state laws of general application. States can set substantive rules that determine the effective net wage, even when a CBA plays a role. Every state’s overtime compensation rule could affect collective bargaining-knowing that state law requires pay at time-and-a-half, labor and management could agree to a lower base rate per hour-but that effect would not prevent application of the state’s wage-and-hour statutes. The Court further held that management and labor acting jointly, through a CBA, have no more power to override state substantive law than they have when acting individually. The district court correctly held that plaintiffs are entitled to be paid for all time required by Wisconsin law.

The 5th Circuit Court of Appeals affirmed the decision of the District Court and found that based upon the plain language of the agreement between the parties and the undisputed facts, Devon Energy was entitled to a summary judgment. The Court held that paragraph 12 of the agreement between the parties detailed the non-consent penalty in question. It stated that the non-consenting parties is deemed to have relinquished its interest in the well “upon commencement of operations for the drilling, reworking, deepening or plugging back of any such well” until such time as payout. The Court determined that case law was clear in that “commencement of operations” for the drilling of a well occurs before the well is spudded. The Court further held that payout is defined in the JOA as the time when the proceeds from the well equal 100% of the non-consenting party’s share of certain costs and 300% of the non-consenting party’s share of drilling costs. Payout is thus determined by the accounting records for the well. The Court found that Devon properly charged Bonn for penalties from the date it commenced operations on the well until payout. It was determined by the Court that the time limitation argued by Bonn only applies to indirect charges for overhead and does not limit Devon’s ability to charge non-consenting parties for all direct costs, and associated penalties, applicable to a well pursuant to the terms of paragraph 12 of the JOA. Further, the Court found that Devon did not breach the JOA by balloting Bonn after the well was drilled and that Bonn was not damaged as a result of the late ballot, that the non-consent penalties applied because Bonn elected to go non-consent, and that Bonn was estopped from claiming that the expenses incurred on the well before the ballot are no properly chargeable. The Court reasoned that Bonn had the opportunity to decide its participation in the well after the majority of the risk associated with drilling had been determined. Bonn knew that the well was completed and successfully producing. Early commencement does not harm the non-operators. It simply places greater risk on the operator that the cost of the operation will fall entirely on him. The District Court did not err in concluding that Bonn waived any rights, if any existed, related to Devon’s late balloting.

The district court entered judgment on a jury verdict in favor of the Stevens and against Auto Club Family Insurance Company. The case began when hurricane Rita damaged Stevens home in late September 2005. Stevens had a homeowner’s insurance policy issued by AAA. Several months after the storm, the parties were still unable to reach agreement on the extent of coverage. Stevens then filed suit against AAA, alleging AAA breached its insurance contract and violated Louisiana’s good faith law, which, inter alia, obligates an insurer to act in good faith and “pay the amount of any claim” owed to the insured under her policy within sixty days “after receipt of satisfactory proof of loss” from the policyholder. AAA argued Stevens’ claims were suspicious and any delay in payment was attributable to a genuine dispute. Stevens argued they were making every effort to work with AAA to resolve their claims, but AAA consistently failed to investigate the claims and return calls, instead opting to delay and stonewall. The Court held there was no reversible error in the district court’s determination that AAA is not entitled to judgment notwithstanding the verdict on the bad faith issue. It reasoned that although the question is close because of the quality and quantity of evidence of bad faith, given the deferential standard of review, the jury’s verdict withstood challenge. The Court further held that the size of the award to which a plaintiff is entitled is generally a fact question, and the reviewing court should be “exceedingly hesitant’ to overturn the decision of the jury-the primary fact finder-and the trial judge” who entered judgment on the verdict. The Court found that although the award was at the outer limits of the permissible, given deferential standard of review, it would not upset the jury’s verdict.

Plaintiff was declared incompetent. To determine the real party in interest after this occurred, the Court held that in a diversity action, state law determines the issue of who is a real party in interest. When Kuelbs was declared incompetent, the state court appointed both a guardian of her person and a guardian of her estate. When a guardian of the estate is appointed, Arkansas law requires the guardian of the estate to pursue a lawsuit seeking monetary damages that will benefit the incompetent person’s estate. The Court found that at all relevant times, the Community First Trust Company was the guardian of Kuelb’s estate and was the real party in interest for purposes of pursuing the tort claims. The Court found that the district court correctly determined that the Irrevocable Trust was not the real party in interest because neither tort claims nor the proceeds of tort claims are assignable under Arkansas law. Rule 25 of the Federal Rules of Civil Procedure sets forth the substitution procedure to be followed when a party becomes incompetent while an action is pending. The Court held that pursuant to Rule 25 and Rule 17(a), the court has no power to permit an action to continue without the real party in interest unless a motion for substitution is brought. The Court found that the district court did not err in dismissing the action after an objection was made that the person deemed incompetent was not the real party in interest so long as the district court allowed a reasonable time for the real party in interest to be substituted.

Recognizing the reality that health care providers frequently are paid less than the invoice value they charge for their services, the Massachusetts Supreme Judicial Court has ruled that a defendant may elicit testimony from a health care provider whose bill is being challenged, and inquire as to the range of payments that the provider accepts for that particular type or types of services which the plaintiff had received; however, the witness would not be permitted to testify as to the identity of the insurer involved in making the actual payment, or as to the amount actually paid in the particular case.

Non-U.S. investors brought a putative class action against an Australian banking corporation and a U.S. headquartered mortgage servicing company, which had been purchased by the Australian bank, alleging both companies violated portions of the Securities and Exchange Act of 1934 and Securities Exchange Commission Rules. Three years after the purchase, the Australian bank had to write down the value of the mortgage servicing company’s assets, causing the Australian bank’s share price to fall. The District Court granted the Australian bank’s motion to dismiss for lack of subject matter jurisdiction, and the Second Circuit Court of Appeals affirmed on the same grounds. The Supreme Court finds that the Court of Appeals had erred in deciding the case on lack of subject-matter jurisdiction. Rather, the Supreme Court held that Section § 10(b) of the Securities and Exchange Act of 1934 reaches the use of manipulation or deceptive device or contrivance ­only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States. Since the Australian bank’s shares are not traded on any exchange in the United States, the dismissal was appropriate based on the failure to state a claim upon which relief can be granted.

Internet Solutions Corp. (ISC) is a Nevada for-profit corporation, which alleged that its principal place of business is in Orlando, Florida. ISC operates a number of websites that deal with employment recruiting and Internet advertising. Tabatha Marshall is a private individual who resides in the State of Washington. Marshall owns and operates tabathamarshall.com, a noncommercial website on which she posts information about consumer-related issues. The website permits third parties to comment on Marshall‘s posts, with the comments appearing on the same webpage as the original post. IN August 2007, a third party posted comments on the website to which Tabatha Marshall responded with alleged defamatory comments. ISC filed a diversity action against Marshall in the Middle District of Florida, alleging several causes of action, including a claim for defamation. ISC contended that the court had personal jurisdiction over Marshall because she had entered into the State of Florida to commit a tortious act and should have known that her repeated defamatory statements would subject her to litigation in Florida. Marshall produced evidence establishing that she had been a resident of Washington since 2000, she had never been a resident of Florida, she had never owned or leased any real estate in Florida, she had no bank accounts or investments in Florida, and she had only visited Florida once—a three-day work-related trip in 2004 that was unconnected with her website. She also declared the following: she was the owner and host of the website from her home in Washington, had never sold any products or services in connection with the website, had never placed any advertisements on the website, had never solicited or received any business, advertising, or donations within Florida in connection with the website, had never contracted with an Internet service provider located within Florida, had never provided a capability on the website to distinguish or target Florida individuals or companies, had never received any income or compensation in connection with the website, and had never directed any communication (telephonic or written) into Florida for business purposes in connection with the website. The federal district court dismissed the case for lack of personal jurisdiction and the Eleventh Circuit Court of Appeals issued a certified question to the Florida Supreme court as follows: DOES A NONRESIDENT COMMIT A TORTIOUS ACT WITHIN FLORIDA FOR PURPOSES OF SECTION 48.193(1)(b) WHEN HE OR SHE MAKES ALLEGEDLY DEFAMATORY STATEMENTS ABOUT A COMPANY WITH ITS PRINCIPAL PLACE OF BUSINESS IN FLORIDA BY POSTING THOSE STATEMENTS ON A WEBSITE, WHERE THE WEBSITE POSTS CONTAINING THE STATEMENTS ARE ACCESSIBLE AND ACCESSED IN FLORIDA? After significant discussion, the Florida Supreme Court held that a nonresident defendant commits the tortious act of defamation in Florida for purposes of Florida‘s long-arm statute when the nonresident makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida.

The buyers were obliged to pay a series of installments prior to fulfillment of the contract by Jinse Shipbuilding Co Ltd. In event of a “termination, cancellation or recission” of the contract, the buyers were entitled to a repayment of the pre-delivery installments. The dispute arouse because there was confusion as to whether the bond covered “all sums due […] under the Contract” (paragraph 3 of the bond) or only in case of “termination, cancellation or rescission of the Contract” (paragraph 2 of the bond). The latter clearly does not include insolvency as a trigger for the bond, while the former can be interpreted either way. The Court of Appeal ruled in favor of Kookmin Bank that insolvency does not trigger the bond, and consequently, the buyers were not entitled to repayment of the pre-delivery installments.

The defendant had entered into an exclusive licence agreement with the plaintiff. When the defendant wanted to terminate the agreement the plaintiff refused to return the already obtained stock and continued to sell it through its outlets. In addition the plaintiff commenced arbitral proceedings seeking compensation for the allegedly unjustified termination of the licence agreement. When the arbitrator issued a "preliminary award" requesting the return of all stock the plaintiff challenged this award before the Swiss Federal Supreme Court. The decision rendered by the Federal Supreme Court thereafter confirmed for the first time that interim arbitral measures cannot individually be challenged before the Federal Supreme Court. The legal situation regarding arbitral awards and measures presents itself thus as follows: Final and partial awards must be challenged within 30 days of notification and only on the following grounds as listed in Article 190(2) of the Private International Law Act ("PILA"): if a sole arbitrator was irregularly designated or the arbitral tribunal was irregularly constituted; if the tribunal held erroneously that it had or did not have jurisdiction; if the tribunal ruled on matters beyond the claims submitted to it or if it failed to rule on one of the claims; if the parties' rights to equal treatment or to be heard was not respected; if the award is incompatible with Swiss public policy. Interim awards can be challenged immediately, but only to the extent they relate to the appointment of the arbitral tribunal or to the matter of jurisdiction (see Article 190 (3) PILA). Interim measures, including orders for the provisional performance of relief, are not challengeable for themselves, but only in the course of a challenge of the respective final award.