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05/18/2015
Lincoln General Insurance Company v U.S. Auto Insurance Services, et al.
$16.5 Million Dollar Verdict for Insurance Company is too small for the State of Texas!
United States Court of Appeals for the Fifth Circuit

Lincoln General entered into a convoluted contract (fronting arrangement) with defendants.  Policies of Auto insurance were issued in name of S&C but were 100% reinsured by Lincoln.  US Auto (owned 100% by Doug Maxwell) served as man

Submitted by: Craig L. Winterman Herzfeld & Rubin LLP - Posted: 05/20/2015
05/15/2015
Michael Williams v. Superior Court
Trial Court’s Order Denying Plaintiff’s Statewide Discovery as Premature was Proper Absent Plaintiff Demonstrating his Substantive Local Claims had Factual Merit
California Court of Appeal, Second Appellate District

In Williams v. Super. Court, plaintiff Michael Williams sued Marshalls of CA under California’s Labor Code Private Attorneys General Act (Labor Code §§ 2698-2699.6) alleging a variety of purported Labor Code violations.  Despi

Submitted by: L. Dean Smith, Jr., of Herzfeld & Rubin, LLP. - Posted: 05/20/2015
05/15/2015
BOWERS V. P. WILES, INC.
Massachusetts Appeals Court Determines that the “Mode of Operation” Approach Applies to More than Spilt Milk
Massachusetts Appeals Court

A trial court judge granted a defendant’s motion for summary judgment in a premises liability case, based on his view that Massachusetts’ adoption of the “mode of operation” approach applies only when a dangerous condition

Submitted by: Beth A. Bauer and Jessica D. Schmit, HeplerBroom LLC - Posted: 05/22/2015
05/12/2015
ALEXANDER AND DENISE TOLENTINO V. STATE FARM INSURANCE COMPANY
Insured Experiences the Sting of Rejection when his Claim for UIM Coverage is Denied
United States District Court for the Eastern District of Pennsylvania

Alexander Tolentino submitted a UIM claim to State Farm under two insurance policies following an accident involving his Victory Boardwalk motorcycle. State Farm denied the UIM claim under both policies. Tolentino waived UIM coverage under the mot

Submitted by: Beth A. Bauer and Edna L. McLain, HeplerBroom LLC - Posted: 05/20/2015
05/08/2015
CHRISTOPHER TEMPLIN V. INDEPENDENCE BLUE CROSS, ET. AL
The Standard for Establishing “Some Success” is a Low One to Obtain Attorneys’ Fees under ERISA
United States Court of Appeals for the Third Circuit

The Third Circuit defined the meaning of “some success” required to award attorney’s fees under ERISA and found that the standard is a “low one.” The appellants demonstrated “some success” by obtaining the

Submitted by: Beth A. Bauer and Edna L. McLain, HeplerBroom LLC - Posted: 05/19/2015
05/07/2015
Rodriguez v. Cho
Overreach – Default Judgment Voided Because it Exceeded the Amount set forth in Plaintiff’s Complaint
State of California, 2nd Appellate District

Dulce Rodriguez worked as a housekeeper for Nam Cho and Reliable Building Maintenance.  After Rodriguez filed a claim for unpaid overtime, Reliable terminated her.  Rodriguez sued for wrongful termination and filed a complaint seeking a

Submitted by: L. Dean Smith, Jr., of Herzfeld & Rubin, LLP. - Posted: 05/19/2015
05/07/2015
Lehman Brothers Holding, Inc. v. Gateway Funding Diversified Mortgage Services
Third Circuit emphasizes importance of Federal Rules of Appellate Procedure, party forfeits argument for failure to comply with Rule 10
United States Court of Appeals for the Third Circuit

Lehman Brother’s brought suit against Gateway claiming that Gateway was obliged to make good on four mortgage loans that Lehman had purchased ten years earlier.  Both parties moved for summary judgment and the District Court found that

Submitted by: Haley Moore at Christie Law Group, PLLC. - Posted: 05/11/2015
05/07/2015
Wheat v. Fifth Third Bank
Plaintiff meets “less than onerous” prima facie case burden for racial discrimination claim
United States Court of Appeals for the Sixth Circuit

Plaintiff, Curtis Wheat, an African-American male, was terminated from Fifth Third Bank, because he had violated the bank’s workplace policies by making a threat of physical violence.  Wheat had been involved in a verbal confrontation w

Submitted by: Haley Moore at Christie Law Group, PLLC. - Posted: 05/11/2015
05/06/2015
State Auto Property and Casualty v. Hargis
No reverse bad faith in Kentucky in view of 6th Circuit.
United States Court of Appeals for the Sixth Circuit

Lori Hargis’s home located in Henderson, Kentucky, was insured by State Auto under a standard homeowner’s policy when it burned to the ground in the early morning hours of December 9, 2007. No one was home at the time of the fire, but

Submitted by: Kay Gaffney, Barnes, Alford, Stork & Johnson - Posted: 05/12/2015
05/05/2015
WIERSUM V. U.S. BANK, N.A
National Bank Act Trumps Whistleblower Laws in the Eleventh Circuit
United States Court of Appeals for the Eleventh Circuit

A former vice president for U.S. Bank filed a whistleblower lawsuit alleging that he was wrongfully terminated for failing to participate in illegal arrangements that conditioned credit upon asset management. U.S. Bank moved to dismiss the complai

Submitted by: Beth A. Bauer and M. Elizabeth D. Kellett, HeplerBroom LLC - Posted: 05/21/2015
05/05/2015
Certain Underwriters at Lloyd’s v. Cohen
The answer is no but the question is ambiguous
United States Court of Appeals for the Fourth Circuit

On April 1, 2011 Dr Cohen made several applications for disability insurance.     When asked “Are you actively at work?,” Dr. Cohen checked the “Yes” box. In response to the question “Are you aware

Submitted by: Kay Gaffney, Barnes, Alford, Stork & Johnson - Posted: 05/12/2015
05/04/2015
Williams v. Chino Valley Independent Fire District
Differing Standards - Prevailing Plaintiffs in FEHA Actions are Ordinarily Entitled to Fees and Costs Whereas Prevailing Defendants are Entitled to Fees and Costs Only if Action was Objectively Without Foundation
California Supreme Court

In Williams v. Chino Valley Independent Fire District, an employment discrimination case brought under California’s Fair Employment & Housing Act (FEHA), the trial court granted the employer summary judgment and awarded it costs in exces

Submitted by: L. Dean Smith, Jr., of Herzfeld & Rubin, LLP. - Posted: 05/19/2015
05/01/2015
HOOD, ET AL., V. GILSTER-MARY LEE CORP.
CAFA’s Local Controversy Exception does not Change Basic Math: 47% ? 67%
United States Court of Appeals for the Eighth Circuit

Former and current employees of a microwave popcorn packaging plant filed a class action lawsuit in Missouri state court alleging that they were harmed from exposure to butter-flavoring products, including diacetyl. Defendants removed the case und

Submitted by: : Beth A. Bauer and M. Elizabeth D. Kellett, HeplerBroom LLC - Posted: 05/20/2015
04/29/2015
RAUB v. CAMPBELL
A former marine posted radical political comments on Facebook that were brought to the attention of the FBI and ultimately resulted in a seven day involuntary hospitalization. The 4th Circuit affirms summary judgment in favor of the mental health prescreener that initially sought the involuntary admission.
The United States Court of Appeals for the Fourth Circuit

The radical and political Facebook posts by Raub compelled his former fellow Marines to contact the FBI to express concern.  Two FBI officials visited Raub’s house concerning the posts and interviewed him for almost half an hour. 

Submitted by: Paul C. Kuhnel and Ashlee A. Webster, LeClairRyan (Roanoke) - Posted: 05/01/2015
04/28/2015
Cypress Semiconductor Corp. V Maxim Integrated Products, Inc.
Award of Attorney Fees upheld.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Award of attorney’s fees pursuant to Calif. Civil Code (§3426.4) to prevailing party was proper where Plaintiff’s claim of misappropriation of trade secrets were made in bad faith.   Plaintiff accused defendant of misapp

Submitted by: Craig L. Winterman Herzfeld & Rubin LLP - Posted: 05/19/2015
04/27/2015
Jocelyn Allen v The Boeing Company
Ninth Circuit remands case for determination of local controversy exception
United States Court of Appeals for the Ninth Circuit

This is a CAFA case.  Plaintiffs sued Boeing and Landau Associates in Washington State Court.  Plaintiffs alleged that for over 40 years Boeing released toxins into the groundwater at its Auburn facility and that for over a decade Landau

Submitted by: Craig L. Winterman Herzfeld & Rubin LLP - Posted: 05/19/2015
04/27/2015
SHAIKH v. LINCOLN MEMORIAL UNIVERSITY
The 6th Circuit affirms that significant modification from the standard medical program curriculum for disability accommodation suggested by the disabled student after academic discipline is not required.
United States Court of Appeals for the Sixth Circuit

Shaikh was a medical student at Lincoln Memorial University’s (“LMU”) DeBusk College of Osteopathic Medicine.  After being diagnosed with (“ADHD”) and Dyslexia, LMU provided Shaikah with various accommodations in

Submitted by: Paul C. Kuhnel and Ashlee A. Webster, LeClairRyan - Posted: 04/29/2015
04/27/2015
Bouret-Echevarria v. Caribbean Aviation Maintenance Corp., et al.
The First Circuit vacates the district court’s denial of an evidentiary hearing to explore jury taint arising out of a verdict in favor of defendants in product liability matter.
United States Court of Appeals for the First Circuit

Eighteen months after jury returned a verdict in favor of defendants in product liability matter involving a helicopter crash, appellants claim they were advised that jurors were influenced by improper knowledge of confidential settlement offer.&n

Submitted by: Paul C. Kuhnel and Ashlee A. Webster, LeClairRyan (Roanoke) - Posted: 05/01/2015
04/23/2015
Ashkenazi v. South Broward Hosp. Dist.
For purposes of the ADEA, a physician is not an "employee" of a hospital which revoked his surgical privileges.
United States Court of Appeals for the Eleventh Circuit

A physician brought claims under the Age Discrimination in Employment Act asserting that the hospital revoked his surgical privileges because of his age and his participation in protected activity.  The District Court found that the physician

Submitted by: Robert C. Lockwood, Wilmer & Lee, P.A. - Posted: 05/11/2015
04/23/2015
SHAMMAS v. FOCARINO
The 4th Circuit affirms that imposing all expenses on ex parte plaintiff does not constitute fee-shifting, contrary to the American Rule.
United States Court of Appeals for the Fourth Circuit

Shammas, a dissatisfied ex parte trademark applicant, filed suit in district court seeking to appeal his adverse ruling.  §1071(b)(3) of the Lanham Act requires that the applicant must pay “all expenses of the proceeding” and

Submitted by: Paul Kuhnel, LeClairRyan - Posted: 04/27/2015
04/23/2015
Pouzbaris v Prime Healthcare Services-Anaheim
Failure to post warning signs in hospital is not a failure to render professional services
COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

This case centers on the determination of professional negligence or ordinary negligence related to a fall by a patient on a recently mopped floor in a hospital.  The injured party claimed there were no warning signs. The lower court consider

Submitted by: Sheila Kerwin and Leslie Kallas, Nilan Johnson Lewis, PA - Posted: 04/27/2015
04/23/2015
CERTAIN UNDERWRITERS AT LLOYD’S, LONDON V. BASS
Arkansas Court Finds “Certain Underwriters” Not Too Amorphous for Intervention in Class Action
Supreme Court of Arkansas

The Supreme Court of Arkansas reversed a lower court’s denial of insurance underwriters request to intervene in a class-action lawsuit. The appellees filed the lawsuit individually and on behalf of other insureds against brokers who placed s

Submitted by: David Fuqua, Fuqua Campbell, PA - Posted: 05/14/2015
04/23/2015
Montano v. Public Service Company of New Mexico
Title VII claims asserted in state court complaint are timely, even though the complaint is dismissed for lack of prosecution, so long as state court reinstates the original action.
United States Court of Appeals for the Tenth Circuit

The plaintiff timely filed a state court complaint in November 2012, but the action was dismissed in June 2013 for failure to diligently prosecute.  The state court reinstated the action in November 2013 after the 90-day Title VII limitations

Submitted by: Robert C. Lockwood, Wilmer & Lee, P.A - Posted: 05/14/2015
04/22/2015
Equal Employment Opportunity Commission v. New Breed Logistics
The act of telling a harassing supervisor to cease harassment is protected activity under Title VII.
United States Court of Appeals for the Sixth Circuit

After a jury verdict totaling more than $1.5 million dollars for four plaintiffs on claims of sexual harassment and retaliation, an employer appealed numerous issues including whether the act of telling a harassing supervisor to cease harassment i

Submitted by: Robert C. Lockwood, Wilmer & Lee, P.A. - Posted: 05/12/2015
04/21/2015
Lee v M and H Enterprises, Inc dba Martin Harris Construction and Wal-Mart Stores, Inc
Independent contractor in construction accident may not claim negligence against general contractor and landowner
Arizona Court of Appeals

Timothy Lee v M and H Enterprises, Inc and Wal-Mart Stores Independent contractor Lee was injured during construction of a Sam’s Club store, on property owned by Wal-Mart Stores Inc. Lee successfully filed a worker’s compensation claim

Submitted by: Sheila Kerwin and Leslie Kallas, Nilan Johnson Lewis, PA - Posted: 04/27/2015
04/16/2015
Christopher Bartolomucci v Federal Insurance Co, et al.
A car is not an office when no work product can be proven
Supreme Court of Virginia

The Virginia Supreme Court ruled that thinking about work, on the way to work does not constitute work. In this case, former  Hogan Lovells partner, Christopher Bartolomucci, was involved in a car accident that injured another driver. Bartolo

Submitted by: Sheila Kerwin and Leslie Kallas, Nilan Johnson Lewis, PA - Posted: 04/27/2015
04/08/2015
Elmore v. Fulton County School Dist.
No clearly established law existed which would require a police officer obtaining a warrant to inform an issuing magistrate about the potential applicability of educator immunity in a case with an allegation of child abuse against a school employee.
United States Court of Appeals for the Eleventh Circuit

The plaintiff was a paraprofessional educator of severely disabled students.  A school nurse observed the plaintiff spray a special needs student with a fine mist of water and made a complaint of child abuse.  The plaintiff was arrested

Submitted by: Robert C. Lockwood, Wilmer & Lee, P.A. - Posted: 05/14/2015
04/01/2015
MATUSEVICH V. MIDDLESEX MUTUAL INSURANCE COMPANY
The Difference 0.76 Inches Can Make-Plaintiff Loses Insurance Claim for Over $130,000 based on what Qualifies as a “Basement
United States Court of Appeals for the First Circuit

The plaintiff, Matusevich, brought a claim against his insurance company when over four feet of water flooded the lower level of his house. The lower level was underground on three sides and opened onto a concrete slab that is 0.76 inches higher t

Submitted by: - Posted: 05/21/2015
03/19/2015
HARRIS v. ONE HOPE UNITED, INC
Illinois Supreme Court to State Department: Don’t Be So Critical, It’s Discoverable
Illinois Supreme Court

The defendant (One Hope) contracts with the Illinois Department of Children and Family Services to provide services with the objective of keeping troubled families together. Following the death of a child in one case, the Cook County public guardi

Submitted by: Beth A. Bauer and Bryan J. Schrempf, HeplerBroom LLC - Posted: 05/19/2015

 

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