Latest 32 Cases This Week: American Guarantee & Liability Insurance Co. v. ACE American Insurance Co. (5th Cir.), Perna v. Health One Credit Union ...

The Twenty-Sixth Amendment and the Real Rigging of Georgia’s Election

VIKRAM DAVID AMAR

Illinois law dean Vikram David Amar explains why Georgia’s law allowing persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, while requiring younger voters to request absentee ballots separately for each election, is a clear violation of the Twenty-Sixth Amendment. Dean Amar acknowledges that timing may prevent this age discrimination from being redressed in 2020, but he calls upon legislatures and courts to understand the meaning of this amendment and prevent such invidious disparate treatment of voters in future years.

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COVID Comes to Federal Death Row—It Is Time to Stop the Madness

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains the enhanced risk of COVID-19 infection in the federal death row in Terre Haute, not only among inmates but among those necessary to carry out executions. Professor Sarat calls upon the Trump administration and other officials to focus on saving, rather than taking, lives inside and outside prison.

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American Guarantee & Liability Insurance Co. v. ACE American Insurance Co.

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-20779

Opinion Date: December 21, 2020

Judge: Edith Hollan Jones

Areas of Law: Civil Procedure, Insurance Law

After Mark Braswell died when his road bike collided with a stopped truck, his survivors filed suit against the truck's owner, the Brickman Group. Brickman was primarily insured by ACE and secondarily insured by AGLIC. ACE rejected plaintiffs' three settlement offers before and during trial. The jury ultimately awarded plaintiffs nearly $28 million, plaintiffs and Brickman settled for nearly $10 million, and AGLIC paid nearly $8 million of the amount. AGLIC then filed suit against ACE, arguing that because ACE violated its Stowers duty to accept one of the three settlement offers for the primary policy limits, ACE had to cover AGLIC's settlement contribution. The district court agreed. The Fifth Circuit affirmed the district court's judgment and held that ACE's Stowers duty was triggered by plaintiffs' third offer, and that ACE violated this duty. In this case, the offer generated a Stowers duty because it "proposed to release the insured fully" and it was not conditional. Furthermore, the evidence was sufficient to support that ACE violated its Stowers duty by failing to reevaluate the settlement value of the case and accept plaintiffs' reasonable offer.

Perna v. Health One Credit Union

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1965

Opinion Date: December 21, 2020

Judge: Murphy

Areas of Law: Banking, Civil Procedure

In 1971, Perna was hired by Health One, a federally-insured, Michigan-chartered credit union. Perna signed an employment agreement with an arbitration clause; it was set to expire in 2015. In 2014, the state concluded that Health One was operating in an “unsafe and unsound condition. The federal National Credit Union Administration Board was appointed as Health One’s liquidator and terminated Perna’s employment, 12 U.S.C. 1787(c)(1). The Board sold Health One’s assets. Perna sought unpaid benefits. The Michigan Department of Licensing and Regulatory Affairs dismissed Perna’s claim, citing the arbitration clause. Perna then submitted a claim to the Board under the claims-processing rules that apply when the Board acts as a credit union’s liquidating agent. 12 U.S.C. 1787(b)(5). The Board denied his claim as untimely under its notice to creditors. In 2018, Perna filed a claim for unpaid wages with the American Arbitration Association. Health One and the National Credit Union Administration refused to participate. The arbitrator found that Perna's firing was “without cause” and awarded him $315,645.02 but found that this decision could bind only Health One, not the Administration. Perna sued Health One and the Administration, seeking to confirm the award and make the Administration subject to it. The Sixth Circuit affirmed summary judgment in favor of the defendants. The Federal Credit Union Act provides that “no court shall have jurisdiction over” claims against covered credit unions asserted outside its exclusive framework, 12 U.S.C. 1787(b)(13)(D).

Federated Mutual Insurance Co. v. Coyle Mechanical Supply Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1207

Opinion Date: December 22, 2020

Judge: St. Eve

Areas of Law: Civil Procedure, Insurance Law

Prairie sued Coyle in Illinois state court concerning the replacement of valves purchased by Prairie. Coyle's insurer, Federated, sought a declaration that it had no duty to defend or indemnify Coyle in that suit. After Coyle answered Federated’s complaint, Federated moved for judgment on the pleadings. Coyle opposed the motion and later moved for leave to file supplemental briefs to show that the state-court action potentially fell within Federated’s coverage obligations. The district court denied Coyle’s motions to file supplemental briefs and granted Federated judgment on the pleadings. The court ruled that Prairie’s complaint did not allege “property damage” or an “occurrence” because Prairie only sought damages for the repair and replacement of defective products—purely economic losses. Prairie’s counsel had clarified at a discovery hearing that “Prairie was not making a claim for loss of use but rather for the costs of replacing the allegedly defective valves and the associate piping” and the defectiveness of the valves was foreseeable. The Seventh Circuit reversed. In granting Federated’s motion, the court relied on some of the new facts that Coyle had unsuccessfully moved to introduce through supplemental briefs while ignoring other facts. The court’s handling of the case ran afoul of local rules and the Federal Rules of Civil Procedure and deprived Coyle of its right to present material factual evidence bearing on the central issue in the case.

Hill v. Madison County

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1307

Opinion Date: December 22, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law

Hill filed suit in state court, asking a judge to compel Young, his prison’s warden, to mail two complaints that Hill wanted to file in federal court. The defendants removed Hill’s suit to federal court. The district judge dismissed the complaint, observing that its records showed that the two complaints at issue had been filed. At Hill’s request, the Seventh Circuit vacated language from the judgment: “This dismissal shall count as one of [Hill’s] allotted 'strikes’ under" 28 U.S.C. 1915(g). This statute provides: In no event shall a prisoner bring a civil action or appeal ... under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained ... brought an action or appeal in a court of the United States that was dismissed" as frivolous, malicious, or failing to state a claim unless the prisoner is under imminent danger of serious physical injury. Section 1915(g) requires prepayment of the docket fees only if the plaintiff has thrice “brought an action or appeal in a court of the United States” decided on one of the listed grounds. Hill did not “bring” this suit in a court of the United States. Defendants brought it to federal court under 28 U.S.C. 1441(a). This suit does not count as a “strike.” While the comment is dicta and is not binding in future litigation, it aggrieves Hill by drawing a future judge’s attention to this suit.

Spinnenweber v. Laducer

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1534

Opinion Date: December 18, 2020

Judge: KANNE

Areas of Law: Civil Procedure, Personal Injury

In 2012, Laducer, a truck driver, rear-ended Spinnenweber’s minivan. Spinnenweber refused medical treatment at the scene. He later sought treatment for neck pain, tinnitus, and bouts of short-term memory loss. Spinnenweber sued Laducer and Laducer’s employer, seeking compensatory damages for his physical injuries. He did not seek punitive damages, medical costs, or lost wages, nor did he claim psychological or emotional injuries. Defendants conceded liability. The defendants’ medical expert, Dr. Carney, was the only expert that Spinnenweber relied on. He testified that Spinnenweber “clearly had a whiplash injury” from the crash. “He certainly could’ve had a very mild concussion.” Dr. Carney did not connect the alleged memory loss or the tinnitus to the accident. Spinnenweber’s counsel stated during closing arguments that the purpose of tort law "is to deter bad conduct so it doesn’t repeat.” The jury awarded Spinnenweber $1 million in compensatory damages. The court offered Spinnenweber the choice of accepting $250,000 or a new trial. Spinnenweber declined to accept the remittitur award. His attorney withdrew. After a one-day bench trial, Spinnenweber requested an award of $0 in damages, calling it a “verdict of silence.” The Seventh Circuit affirmed. The court did not abuse its discretion by finding that Spinnenweber’s evidence showed that he potentially suffered just whiplash and a mild concussion or by finding that the $1 million verdict was so outrageous that it warranted remittitur or a new trial. “Spinnenweber was hoisted with his own petard.”

Martin v. Martin

Court: Supreme Court of Alabama

Docket: 1181002

Opinion Date: December 18, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Trusts & Estates

Thomas Martin ("Thomas") appealed a circuit court judgment dismissing his declaratory-judgment action for lack of subject-matter jurisdiction. Henry Thomas Martin ("Henry") died and was survived by his wife, Sheila Martin ("Sheila"), and his two children, Thomas and Dawn Michelle Martin ("Dawn"). Among other dispositions, Henry's will created a testamentary trust for the benefit of Dawn ("the testamentary trust"). The will directed the trustee to hold 25% of Henry's residuary estate in trust and to pay Dawn, in estimated equal monthly installments, the net income from the trust along with any surplus net incomes. Following Henry's death, Dawn died without a will. Henry's will was silent, however, about what happened to the principal of the testamentary trust upon Dawn's death. While the probate court proceedings were pending, Thomas filed a complaint at circuit court seeking a judgment to declare: (1) his interest in reversions held by Henry's heirs; (2) the proper distribution of any property held in such an reversionary trust; and (3) the various rights of the parties to Henry's assets at the time of Henry's death. Shiela, as personal representative to the estate, moved to dismiss Thomas' suit, arguing the circuit court lacked subject-matter jurisdiction. The Alabama Supreme Court reversed the circuit court, finding that although certain probate courts in Alabama were vested with jurisdiction to hear cases involving testamentary tryst, the probate court in this case was not one of them. As a result, only the circuit court held subject-matter jurisdiction to consider arguments about whether the testamentary trust continues or has terminated.

Newsome v. Balch & Bingham, LLP, et al.

Court: Supreme Court of Alabama

Dockets: 1180302, 1180252

Opinion Date: December 18, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

Attorney Burt Newsome and his law practice Newsome Law, LLC (collectively, "the Newsome plaintiffs"), sued attorney Clark Cooper; Cooper's former law firm Balch & Bingham, LLP ("Balch"); John Bullock; Claiborne Seier ("Seier"); and Don Gottier (collectively, "the defendants") alleging the defendants combined to have Newsome arrested on a false charge with the intent of damaging his reputation and law practice. The trial court ultimately entered judgments in favor of defendants, while reserving jurisdiction to make a later award of attorney fees and costs under the Alabama Litigation Accountability Act ("the ALAA"). After the Newsome plaintiffs appealed the initial judgments against them, the trial court awarded Balch, Bullock, Seier, and Gottier attorney fees and costs under the ALAA. The Newsome plaintiffs then filed another appeal seeking the reversal of those awards. The Newsome plaintiffs made "myriad arguments" about how the trial court allegedly erred and why the judgments entered in favor of the defendants should have been reversed. The Alabama Supreme Court found the Newsome plaintiffs failed to produce substantial evidence supporting their claims even after conducting extensive discovery; the trial court therefore appropriately entered summary judgments in favor of defendants.

Varden Capital Properties, LLC v. Reese

Court: Supreme Court of Alabama

Docket: 1190692

Opinion Date: December 18, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Personal Injury

Varden Capital Properties, LLC ("Varden"), appealed an interlocutory circuit court order denying Varden's motion for summary judgment based on the statute of limitations. Alexis Reese alleges that, on October 29, 2016, she suffered a fall on real property owned or maintained by Varden. On October 29, 2018, exactly two years later, on the last day before the statute of limitations expired, Reese sued Varden, alleging negligence and wantonness. Reese did not request the circuit clerk to serve the complaint and summons by certified mail. Instead, she submitted a summons along with her complaint indicating that a private process server would be used to accomplish service. A process server served the complaint and summons at an address in Montgomery on February 6, 2019, 100 days after the complaint was filed. The address to which the materials were served was not Varden's; notwithstanding, Varden learned of the suit and appeared for the sole purpose of filing a motion to quash service. The trial court gave Reese more time to serve Varden's agent at the correct address. On June 14, 2019, Reese served Varden by certified mail by the deadline set by the trial court. The Alabama Supreme Court reversed, finding that although Reese used a process server in an attempt to ensure that service was made at the correct address, she pointed to no evidence of intent, no evidence establishing when she hired a process server, and no evidence demonstrating that any steps at all were taken to discover the proper address for service. Indeed, even 100 days after filing the complaint, she simply served it at the incorrect address she had when the complaint was filed, "indicating that any effort to identify the correct address was minimal at best."

Williams v. Mari Properties, LLC

Court: Supreme Court of Alabama

Docket: 1190555

Opinion Date: December 18, 2020

Judge: Stewart

Areas of Law: Civil Procedure, Real Estate & Property Law, Trusts & Estates

Eleanor Williams appealed a probate court order denying her request for redemption of certain real property. In 2003, the State purchased property located in Birmingham ("the property") at a tax sale after the then owners, Benjamin and Marzella Rosser, failed to pay ad valorem taxes. The State sold the property in 2016 for $1,000 to Waynew Global Holdings, LLC ("WGH"). In February 2017, WGH sold the property to Mari Properties, LLC ("Mari"), for $5,000, and Mari recorded the deed to the property. Williams claimed that she inherited the property from the Rossers in or around March 2003. In September 2017, Williams petitioned for redemption of the property under section 40-10-120, Ala. Code 1975, with which she tendered $1,100. The probate court granted Williams petition, thereby ordering Mari to compute and submit the amount of those items and stated that, upon receipt of those figures, the probate court would enter an amendment to the order and direct payment by Williams. The probate court did not vest title of the property in Williams. Mari, however, moved to vacate the probate's order, arguing the court lacked subject-matter jurisdiction over the redemption petition because, it argued, Williams was required under 40-10-120 to redeem the property through statutory redemption within three years of the May 13, 2003, tax sale. Mari contended in the motion that the only redemption process available to Williams was judicial redemption under section 40-10-83, Ala. Code 1975, and that the circuit court had exclusive jurisdiction over that process. Despite Mari's filing of the notice of appeal to the circuit court, the parties continued filing documents in the probate court. By March 6, 2020, the probate court reversed course, vacating its earlier judgment in favor of Williams for redemption under 40-10-120, and holding that Williams should have filed her redemption petition with the circuit court. The Alabama Supreme Court determined that once Mari appealed to the circuit court, the probate court's jurisdiction was divested, making all orders filed after Mari's circuit court suit void.

Seal v. Welty d/b/a North Country Services

Court: Alaska Supreme Court

Docket: S-17540

Opinion Date: December 18, 2020

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Personal Injury

A worker died at a construction site when a retaining wall collapsed. Neither the putative employer, who claimed the worker was an independent contractor, nor the property owner, who hired the putative employer, had workers’ compensation coverage. The worker’s mother, who also was the personal representative of the worker’s estate, filed both a workers’ compensation claim against the Alaska Workers’ Compensation Benefits Guaranty Fund and a superior court wrongful death action against both the putative employer and the property owner. The Fund later caused the property owner, the putative employer, and the worker’s father to be joined as parties to the workers’ compensation claim before the Alaska Workers’ Compensation Board.All parties to the workers’ compensation proceeding, except the putative employer, entered into a settlement agreement; in the settlement the estate elected the wrongful death suit as its remedy, agreed to dismiss the workers’ compensation claim entirely to effectuate its remedy election, received a settlement payment from the property owner’s general liability insurer, and dismissed the wrongful death claim against the property owner. The agreement explicitly preserved the estate’s wrongful death claim against the putative employer. The Board approved the agreement, and the superior court dismissed the property owner from the wrongful death action based on a separate stipulation. The putative employer then sought dismissal of the wrongful death suit, contending that the Alaska Workers’ Compensation Act’s exclusive liability provision precluded the lawsuit because the settlement effectively paid workers’ compensation benefits to the estate. The superior court granted the putative employer summary judgment, relying on the Act to decide that the Board’s approval of the settlement transformed the settlement money into workers’ compensation benefits. Because the superior court misinterpreted the settlement agreement and the Act, the Alaska Supreme Court reversed the grant of summary judgment and remanded for further proceedings.

Capra v. Capra

Court: California Courts of Appeal

Docket: C084032(Third Appellate District)

Opinion Date: December 22, 2020

Judge: Harry E. Hull, Jr.

Areas of Law: Civil Procedure, Real Estate & Property Law

Heirs contested rights to a family cabin and a federal use permit authorizing the cabin on federal land. Plaintiffs alleged the defendant was wrongfully claiming sole ownership of the cabin and permit, and was threatening to sell the property. Three actions taken by the trial court were the subject of this appeal: (1) the court sustained defendant’s demurrer without prejudice and dismissed the action solely based on lack of jurisdiction; (2) it denied plaintiffs’ motion to disqualify defendant’s attorney; and (3) it denied plaintiffs’ application for injunctive relief filed while this appeal was pending. Plaintiffs contended the trial court erred in each instance. In his cross-appeal, defendant contended the trial court erred by not dismissing the action with prejudice. After review, the Court of Appeal reversed in part and affirmed in part, and remanded for further proceedings. The Court held: (1) the trial court had jurisdiction to try this matter; (2) the court did not abuse its discretion when it denied plaintiffs’ motion to disqualify counsel; and (3) plaintiffs’ application for injunctive relief pending this appeal was now moot. An application for injunctive relief and defendant’s arguments for dismissing with prejudice could be considered by the trial court on remand.

Edelweiss Fund, LLC v. JP Morgan Chase & Co.

Court: California Courts of Appeal

Docket: A158728(First Appellate District)

Opinion Date: December 22, 2020

Judge: Tucher

Areas of Law: Civil Procedure, Government Contracts

In 2014, Edelweiss filed under seal its qui tam complaint, seeking to recover more than $700 million in false claims allegedly paid by the state and political subdivisions. The defendants were entities involved in the marketing of government-issued variable-rate bonds. The Attorney General reportedly received multiple extensions of the 60-day period for investigation and in October 2015, filed a notice declining to intervene. The next day, Edelweiss successfully moved to further extend the seal to January 2016. Edelweiss’s second motion to extend the seal, (to June) was also granted. Edelweiss filed no further motions to extend the seal but, for two years after the seal period expired, did not move to lift the seal despite two admonitions from the court. In June 2018, Edelweiss finally asked the court to unseal the case but did so incorrectly. Ultimately, the clerk of the court informed Edelweiss that it had unsealed the action around December 4, 2018. Weeks later, Edelweiss began serving the defendants. The court of appeal affirmed the dismissal of the defendants. The time from October 2015 to December 2018 is included in the three-year period during which service must be accomplished because, even if Edelweiss was unable to serve the summons until the seal was lifted, the continuing of the seal after October 2015 was not a circumstance beyond Edelweiss’s control, Code of Civ. Proc. 583.240.

Menges v. Dept. of Transportation

Court: California Courts of Appeal

Docket: G057643(Fourth Appellate District)

Opinion Date: December 24, 2020

Judge: Kathleen E. O'Leary

Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury, Transportation Law

Kevyn Menges suffered catastrophic injuries in a motor vehicle accident. Menges, through her guardian ad litem Susan Menges, sued the Department of Transportation (Caltrans) for its negligent construction of an interstate off-ramp. Caltrans moved for summary judgment, asserting design immunity. The trial court granted Caltrans’s motion for summary judgment. On appeal, Menges argued: (1) design immunity should not have applied since the approved plans were unreasonable, and the construction of the interstate off-ramp did not match the previously approved design plans; (2) the trial court erred in denying her oral request for a continuance at the summary judgment hearing; and (3) Caltrans’s Code of Civil Procedure section 998 offer was unreasonable and invalid, and a portion of the cost award for expert witness fees should have been disallowed. The Court of Appeal determined none of Menges’s arguments had merit, and affirmed the judgment.

Rojas-Cifuentes v. Superior Court

Court: California Courts of Appeal

Docket: C085463(Third Appellate District)

Opinion Date: December 21, 2020

Judge: Cole Blease

Areas of Law: Civil Procedure, Labor & Employment Law

Miguel Angel Rojas-Cifuentes (Rojas) brought this representative action against his former employer, American Modular Systems, Inc. (AMS), on behalf of himself, other former and current employees of American Modular, and the State of California. Relying on the Labor Code Private Attorneys General Act of 2004 (PAGA), Rojas sought to recover civil penalties for labor violations that AMS allegedly committed against its nonexempt employees. He alleged that the “core” of these violations concerned “the systematic failure to keep accurate time and payroll records, and systematic failure to compensate employees for substantial portions of their workday.” The trial court rejected Rojas’s PAGA claim following AMS' motion for summary judgment. The trial court noted those seeking to bring PAGA causes of action must, before filing suit, provide notice to a certain state agency of the laws the employer allegedly violated and the “facts and theories” supporting those allegations. Although the court found Rojas provided written notice to the state before he filed suit, it found his notice failed to include sufficient facts and theories to support his claims. It thus rejected his PAGA cause of action for failure to exhaust administrative remedies. After Rojas filed a petition for writ of mandate seeking to set aside the court’s decision, the Court of Appeal directed AMS to show cause why the writ should not be issued. Because, unlike the trial court, the Court found Rojas’s PAGA notice supplied sufficient facts and theories to support at least some of his claims, the Court issued a writ of mandate to direct the trial court to set aside its order granting AMS' motion for summary adjudication.

Trenk v. Soheili

Court: California Courts of Appeal

Docket: B295434(Second Appellate District)

Opinion Date: December 21, 2020

Judge: Elwood G.H. Lui

Areas of Law: Civil Procedure, Real Estate & Property Law, Trusts & Estates

Maryam Soheili and Morteza Sohyly (appellants) appeal from a judgment quieting title to a house owned by respondents Joseph and Dinah Trenk. After Sohyly filed suit against Joseph Trenk for malpractice, the parties settled and Joseph agreed to pay $100,000 and executed a promissory note and a trust deed on the property to secure the obligation. Sohyly’s sister, Maryam Soheili, was designated as the beneficiary of the trust deed. After Joseph stopped regular payments on the note after 2003, Sohyly began nonjudicial foreclosure proceedings in 2018. The Trenks then filed this action to clear title to their house, alleging that the trust deed was no longer enforceable. The trial court quieted title in the property in favor of the Trenks, ruling that both the statute of limitations and the Marketable Record Title Act barred enforcement of the trust deed. The Court of Appeal held that a power of sale in a trust deed is enforceable even if the statute of limitations has run on the underlying obligation. In this case, because the trust deed did not state the last date for payment under the promissory note, under Civil Code section 882.020, subdivision (a)(2), appellants would have 60 years to exercise the power of sale in the trust deed. However, the court held that the power of sale is not enforceable for another reason. The court explained that the property presumptively is community property, appellants did not rebut that presumption at trial, and because Dinah did not execute the trust deed, she has the power to void it. Accordingly, the court affirmed the judgment.

Waterwood Enterprises, LLC v. City of Long Beach

Court: California Courts of Appeal

Docket: B296830(Second Appellate District)

Opinion Date: December 18, 2020

Judge: Bendix

Areas of Law: Civil Procedure, Legal Ethics

The Court of Appeal concluded that the trial court abused its discretion in finding that defendant—who lost the only cause of action in the case—was the prevailing party. The court rejected both parties' arguments based on the definition of prevailing party in the attorney fees provision in their contract, explaining that any such definition would not trump the definition of prevailing party in Civil Code section 1717. The court also concluded that the trial court's consideration of the parties' settlement offers in determining which party achieved the greater relief under section 1717's definition of prevailing party was contrary to precedent. The court rejected defendant's argument that it prevailed because it admitted it owed plaintiff a portion of the contractual damages plaintiff was seeking, and the jury's lump sum award was for less than plaintiff's damages claim at trial. The court explained that defendant's argument is inconsistent with section 1717, subdivision (b)(2), under which a defendant who owes a debt becomes a prevailing party by tendering to the plaintiff the full amount owed and alleging such tender in the defendant's answer. The court reversed the amended judgment only insofar as it orders plaintiff to pay defendant's attorney fees. The court affirmed in all other respects, remanding for further proceedings.

Denver Health v. Houchin

Court: Colorado Supreme Court

Citation: 2020 CO 89

Opinion Date: December 21, 2020

Judge: Gabriel

Areas of Law: Civil Procedure, Civil Rights, Labor & Employment Law

In 2012, the Denver Health and Hospital Authority hired Brent Houchin as an Employee Relations Specialist and promoted him to Employee Relations Manager. Throughout Houchin’s time at Denver Health, his supervisor consistently rated his performance as “successful” and “exceptional.” In an employee relations matter concerning the suspected diversion of controlled substances, a former in-house lawyer for Denver Health advised that using an employee’s medical records from off-duty medical care in connection with an internal investigation would violate the privacy requirements of the Health Insurance Portability and Accountability Act (“HIPAA”). Houchin objected to this interpretation of HIPAA because he (1) felt that it prevented him from investigating suspected employee diversions of controlled substances and (2) believed that HIPAA permitted the use of such employee information to detect health care fraud and abuse. This disagreement in interpretation would come into play when Houchin's employment was terminated, based on two alleged HIPAA violations relating to an investigation. Following his termination, Houchin appeared to have commenced Denver Health’s “Concern Resolution” process to address what he believed to be the discriminatory circumstances of his termination. Houchin then filed a Charge of Discrimination with the Colorado Civil Rights Division, alleging discrimination based on his sexual orientation and retaliation for using Denver Health’s “Concern Resolution” process to address such discrimination. The Civil Rights Division ultimately issued a Notice of Right to Sue, and Houchin filed a complaint against Denver Health. The issue this case presented for the Colorado Supreme Court's review centered on the interplay between the Colorado Anti-Discrimination Act ("CADA") and the Colorado Governmental Immunity Act (CGIA"). Denver Health moved to dismiss Houchin’s complaint, arguing, among other things, that Houchin’s discrimination and retaliation claims under CADA lie in tort and were therefore barred by the CGIA. The Supreme Court concluded: (1) claims for compensatory relief under CADA were not claims for “injuries which lie in tort or could lie in tort” for purposes of the CGIA and therefore public entities were not immune from CADA claims under the CGIA; (2) “the state,” as used in subsection 24-34-405(8)(g), included political subdivisions of the state. The appellate court's judgment dismissing Houchin's claims was reversed, and the matter remanded for further proceedings.

DOC v. Stiles

Court: Colorado Supreme Court

Citation: 2020 CO 90

Opinion Date: December 21, 2020

Judge: Samour

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Between the date he was hired and June 2015, Mark Stiles had some difficulties with punctuality and managing his paid leave balance, but he was never subject to corrective or disciplinary action and his evaluations consistently rated him as a competent Department of Corrections ("DOC") employee. Stiles was fired by the DOC for using marijuana outside of work hours. After a hearing, an Administrative Law Judge (“ALJ”) acting on behalf of the Colorado State Personnel Board issued an initial decision reinstating Stiles and imposing a less severe sanction. The Board then adopted that initial decision, and a division of the court of appeals affirmed the Board’s ruling. The Colorado Supreme Court agreed to take DOC’s appeal in the hopes of shedding light on the standard of review that governed an appeal to the Board by a certified state employee following an appointing authority’s disciplinary action. The Supreme Court held that, while an ALJ conducting a hearing on behalf of the Board must afford the disciplined employee an opportunity to present evidence and must then make findings of fact, the ALJ’s review of the appointing authority’s disciplinary action was governed by the statutorily mandated “arbitrary, capricious, or contrary to rule or law” standard, not de novo review. Because the appellate division misapprehended the standard of review that controlled hearings held by or on behalf of the Board, and because the Supreme Court couldn't discern whether the ALJ applied the arbitrary, capricious, or contrary to rule or law standard or de novo review, the Court reversed the division’s judgment and remand with instructions to return the case to the ALJ for further proceedings.

Elder v. Williams

Court: Colorado Supreme Court

Citation: 2020 CO 88

Opinion Date: December 21, 2020

Judge: Gabriel

Areas of Law: Civil Procedure, Civil Rights, Labor & Employment Law

Timothy Williams began working at the El Paso County, Colorado Sheriff’s Office in 2002 and, after multiple promotions over the course of his career, reached the rank of lieutenant. In March 2016, Sheriff Bill Elder ordered a mandatory survey requesting, among other things, retirement eligibility dates from all employees. Williams, who then would have been eligible for full retirement benefits June 1, 2018, completed this survey and reported that he expected to retire within the next five years. Thereafter, Williams was assigned to a team that conducted investigations into alleged misconduct by personnel in his office. Apparently, Sheriff Elder was unhappy with Williams’s investigation and the sanctions that Williams recommended, and he confronted Williams in a meeting about it. This lead to a demotion to senior deputy, which carried a significant change in rank, pay, and duties that resulted in substantial adverse retirement benefit consequences for Williams. To avoid these consequences, Williams retired the following day, ultimately to be replaced by a younger and purportedly less qualified employee. Williams thereafter filed age discrimination and retaliation charges El Paso County Sheriff’s Office with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission. The issue this case presented for the Colorado Supreme Court's review centered on the interplay between the Colorado Anti-Discrimination Act ("CADA") and the Colorado Governmental Immunity Act (CGIA"). As applied to this case, the Supreme Court concluded: (1) claims for compensatory relief under CADA were not claims for “injuries which lie in tort or could lie in tort” for purposes of the CGIA and therefore public entities were not immune from CADA claims under the CGIA; (2) “the state,” as used in subsection 24-34-405(8)(g), included political subdivisions of the state and thus political subdivisions were not immune from claims for compensatory damages based on intentional unfair or discriminatory employment practices; and (3) front pay was equitable and not compensatory in nature under CADA, and age discrimination and retaliation claims seeking front pay did not lie and could not lie in tort for CGIA purposes.

Bromund v. Bromund

Court: Idaho Supreme Court - Civil

Docket: 47602

Opinion Date: December 22, 2020

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Family Law

At issue before the Idaho Supreme Court in this matter was what portion of a military retirement benefit was subject to division following divorce. Specifically, the Court was asked to decide whether a 2017 amendment to the federal statutory scheme governing military retirement applied to the division of a benefit entered as part of a divorce decree in 2008 but not calculated until the husband’s retirement in 2018. The Supreme Court determined a 2017 amendment to 10 U.S.C. 1408 did not apply retroactively to alter the division of the military benefit at issue here. Furthermore, the district court did not err in concluding that the magistrate court’s mischaracterization of the 2008 divorce decree was harmless error because it did not impact the outcome of litigation.

Hawes v. Western Pacific Timber LLC

Court: Idaho Supreme Court - Civil

Docket: 47133

Opinion Date: December 18, 2020

Judge: Stegner

Areas of Law: Civil Procedure, Contracts, Labor & Employment Law

Originally, Western Pacific Timber, LLC (WPT) was solely owned by Timothy Blixseth (Blixseth). Andrew Hawes contended Blixseth hired him to be general counsel for WPT in 2005, and that when he was hired, Blixseth agreed on behalf of WPT to provide him with a severance package based on the length of his employment. After 2012, Blixseth no longer retained any ownership interest or management responsibility in WPT. When WPT terminated Hawes’ employment in 2017, Hawes asserted that he had a severance agreement in place that had been negotiated with Blixseth on behalf of WPT, by which he would receive $100,000 for each year of employment, capped at five years, for a total of $500,000. However, Hawes could not produce a signed copy of any agreement. WPT refused to pay the claimed severance pay, and instead offered a significantly smaller severance package. Hawes rejected WPT’s offer. Hawes then sued WPT for breach of contract. The case proceeded to trial on Hawes’ claim of an oral contract. Ultimately, the jury returned a special verdict finding that WPT was liable to Hawes for $500,000 in severance pay, an award which was later trebled by the district court. The district court also awarded Hawes the full amount of his requested attorney fees which constituted 35% of Hawes’ gross recovery. WPT unsuccessfully moved for a new trial. Finding no reversible error, the Idaho Supreme Court affirmed the district court.

Hollingsworth v. Thompson

Court: Idaho Supreme Court - Civil

Docket: 47488

Opinion Date: December 23, 2020

Judge: Moeller

Areas of Law: Civil Procedure, Medical Malpractice

Rockne Lee Hollingsworth brought a medical malpractice claim against a local hospital and doctor in Gem County, Idaho district court. The district court found Hollingsworth lacked due diligence in failing to determine the hospital was a political subdivision, subject to the notice requirements of the Idaho Tort Claims Act (“ITCA”), and granted summary judgment for Respondents. Hollingsworth appealed, arguing the corporate filings made by the county-owned hospital created the false impression the hospital was a private corporation. Respondents contended the hospital and corporate entity, both owned by Gem County, were both subject to the ITCA because they were actually one and the same. To this, the Idaho Supreme Court concurred and reversed the district court's ruling.

Weitz v. Weitz

Court: Idaho Supreme Court - Civil

Docket: 47483

Opinion Date: December 22, 2020

Judge: Roger S. Burdick

Areas of Law: Business Law, Civil Procedure

This case arose from a dispute over the ownership of Treasure Valley Manufacturing & Recycling, Inc., (“TVM”). Daniel Weitz appealed a district court order granting summary judgment in favor of David Weitz and John Tavares and declaring them the exclusive owners of TVM. The district court granted summary judgment after determining that Daniel Weitz failed to produce any evidence demonstrating a genuine dispute of material fact and that they were entitled to judgment as a matter of law. Finding no reversible error, the Idaho Supreme Court affirmed the district court's judgement.

Beck v. Honorable Ernesto Scorsone

Court: Kentucky Supreme Court

Docket: 2019-SC-0726-MR

Opinion Date: December 17, 2020

Judge: John D. Minton, Jr.

Areas of Law: Civil Procedure, Medical Malpractice

In this medical negligence lawsuit, the Supreme Court reversed the decision of the court of appeals denying Defendants' application for a writ of prohibition seeking to prevent the trial court from enforcing a protective order that forbade them from certain ex parte communications, holding that the trial court abused its discretion. Plaintiff brought this action against the University of Kentucky Medical Center and thirteen healthcare professionals allegedly employed by the Medical Center. Here, Defendants sought to prevent the trial court from enforcing a protective order forbidding them from ex parte communication with Plaintiff's unnamed treating physicians or other healthcare providers employed by the Medical Center. The Supreme Court remanded the case to the court of appeals with direction to issue a writ consistent with this decision, holding that the trial court abused its discretion because the basis of the order was purportedly the personal conviction of the trial court that departed from precedent without appropriate justification.

State ex rel. Janssen Pharmaceuticals, Inc. v. Honorable Michael Noble

Court: Supreme Court of Missouri

Docket: SC98222

Opinion Date: December 22, 2020

Judge: Mary R. Russell

Areas of Law: Civil Procedure, Drugs & Biotech, Personal Injury

The Supreme Court made permanent a preliminary writ of prohibition preventing the circuit court from allowing Plaintiffs' claims against Janssen Pharmaceuticals, Johnson & Johnson, and Janssen Research & Development (collectively, Defendants) in the Circuit Court of the City of St. Louis, holding that the circuit court abused its discretion by refusing to transfer the claims of those injured outside of the City of St. Louis. Multiple plaintiffs filed this action stating various causes of action arising from the sale and use of Risperdal, a prescription drug. Defendants filed a motion to dismiss based on improper venue and forum non conveniens for all plaintiffs not injured in the City of St. Louis. The circuit court overruled the motion. Defendants then filed a petition for a writ of prohibition or mandamus asking that the claims of the plaintiffs whose injuries allegedly occurred in Missouri counties other than the City of St. Louis be transferred. The Supreme Court granted a writ of prohibition, holding (1) Mo. R. Civ. P. 52.05(a) cannot be used to confer venue in a forum that is otherwise improper, and newly enacted Mo. Rev. Stat. 508.013.1 did not alter the result on these facts; and (2) the circuit court's failure to transfer the claims of those injured outside of the City of St. Louis was an abuse of discretion.

Ohioans for Concealed Carry, Inc. v. Columbus

Court: Supreme Court of Ohio

Citation: 2020-Ohio-6724

Opinion Date: December 18, 2020

Judge: Maureen O'Connor

Areas of Law: Civil Procedure

The Supreme Court affirmed the judgment of the court of appeals concluding that Appellants - Ohioans for Concealed Carry, Inc. and Buckeye Firearms Foundation, Inc. - did not have standing to bring an action seeking declaratory and injunctive relief against Appellees - the City of Columbus and a Columbus City attorney (collectively, the City) - regarding two firearm-related ordinances that Appellants alleged were unlawful, holding that Appellants did not establish standing in this case. Appellants filed a complaint seeking an injunction against enforcement of the ordinances as unconstitutional, arguing that the ordinances are preempted by Ohio Rev. Code 9.68 and seeking a declaratory judgment that the ordinances violate section 9.68. The trial court found one ordinance to be unconstitutional and granted a permanent injunction enjoining its enforcement but denied injunctive relief regarding the other ordinance. The court of appeals reversed, concluding that Appellant failed to establish that they had standing under Ohio Rev. Code 733.59, Ohio Rev. Code 9.68, or Ohio Rev. Code Chapter 2721. The Supreme Court affirmed, holding that Appellants did not establish standing under section 9.68, section 733.58, or Chapter 2721 to challenge the ordinances.

Clark (Est of M. Clark) v. Stover, et al

Court: Supreme Court of Pennsylvania

Docket: 2 MAP 2020

Opinion Date: December 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Civil Procedure, Insurance Law, Trusts & Estates

The underlying controversy entailed will-, estate-, and insurance-contest litigation commenced in 2008 by Appellee Jeffrey Stover in his capacity as the attorney for Appellant, David Clark, who was the testator’s brother. In 2010, Appellee Stover also lodged a second complaint on behalf of Monica Clark, the testator’s mother, now deceased. After the claims in both actions failed, Appellant and Mrs. Clark filed this legal malpractice action in 2015, advancing claims of professional negligence and breach of contract against Appellee Stover and his law firm. Upon Appellees’ motion, the common pleas court awarded summary judgment in their favor, finding, as relevant here, that Appellant and Mrs. Clark were aware of the alleged negligence and the asserted breach more than four years before they lodged the malpractice action. Since the applicable statutes of limitations provided for commencement of a negligence action within two years after accrual, and a contractual action within four years after breach, the county court found the claims to be untimely. The Superior Court affirmed on the "occurrence rule." The Pennsylvania Supreme Court granted discretionary review to address the "continuous representation rule," under which the applicable statutes of limitations would not run until the date on which Appellees' representation was terminated. Appellant maintains that this rule should be adopted in Pennsylvania to permit statutes of limitations for causes of action sounding in legal malpractice to be “tolled until the attorney’s ongoing representation is complete.” While the Supreme Court recognized "there are mixed policy considerations involved, as relating to statutes of limitations relegated to the legislative province, we conclude that the appropriate balance should be determined by the General Assembly." The Superior Court judgment was affirmed.

In Re: Passarelli Family Trust

Court: Supreme Court of Pennsylvania

Docket: 71 MAP 2019

Opinion Date: December 22, 2020

Judge: Donohue

Areas of Law: Civil Procedure, Family Law, Trusts & Estates

In this discretionary appeal, the Pennsylvania Supreme Court was asked to determine the burden of proof for a settlor of an irrevocable trust in order to void the trust on grounds of fraudulent inducement in the creation of the trust. The corpus of the Trust at issue here consisted of numerous assets totaling approximately $13 million, including two real estate property companies called Japen Holdings, LLC, and Japen Properties, LLP (collectively “Japen”). Although acquired during the marriage, Japen was owned 100% by Husband. Unbeknownst to Wife, among Japen’s assets were two residential properties in Florida. When presented with the Trust inventory of assets, Wife did not question its contents, which included Japen, but not a listing of its specific holdings, e.g., the Florida Properties. Approximately four months after the creation of the Trust, Wife discovered that Husband had been having an affair and that his paramour was living in one of the Florida Properties. Wife promptly filed for divorce. A month after that, she filed an emergency petition for special relief to prevent dissipation of the marital assets, including assets in the Trust. Wife argued that Husband’s motive in creating the Trust was to gain control over the marital assets and avoid equitable distribution. A family court judge accepted Wife’s argument by freezing certain accounts included in the Trust and directing Husband to collect rent from his paramour. The Supreme Court held that a settlor averring fraud in the inducement of an irrevocable trust had to prove by clear and convincing evidence the elements of common-law fraud. In doing so, the Court rejected the analysis set forth in In re Estate of Glover, 669 A.2d 1011 (Pa. Super. 1996), because it represented an inaccurate statement of the elements required to establish fraud in the inducement. The Court affirmed the Superior Court’s ruling that the complaining settlor did not prove fraud in the inducement.

Raynor v. D'Annunzio

Court: Supreme Court of Pennsylvania

Docket: 36 EAP 2019

Opinion Date: December 22, 2020

Judge: Doughtery

Areas of Law: Civil Procedure, Legal Ethics, Personal Injury

This appeal arose from a medical malpractice action in which appellees Nancy Raynor, Esq. and Raynor & Associates served as defense counsel for Dr. Jeffrey Gellar and Roxborough Emergency Physician Associates (collectively Roxborough). Rosalind Sutch, executrix of the estate of Rosalind Wilson (decedent), and her counsel in that lawsuit, Messa & Associates, P.C. was plaintiff in the suit. Joseph Messa, Jr., Esq. (collectively, the Messa appellants) were Sutch's counsel. In July 2009, Sutch filed a medical malpractice action alleging, among other things, Roxborough failed to obtain a CT scan and timely diagnose decedent’s lung cancer. The trial court granted Sutch’s pre-trial motion in limine, and defendants were precluded “from presenting any evidence, testimony, and/or argument regarding decedent’s smoking history” at trial. During trial, Sutch’s counsel requested an order from the trial judge directing Raynor to inform witnesses of the ban on testimony regarding decedent’s smoking history before taking the stand. The court did not issue the requested order; upon questioning, the defense expert testified the decedent was a smoker, was hypertensive, and had vascular disease. The witness did not recollect having a discussion with Raynor regarding mentioning the decedent's smoking. Plaintiff's counsel asked for a mistrial and/or sanctions. The trial judge denied the request for a mistrial and instead provided a curative instruction to the jury. At the end of trial, the jury returned a verdict in favor of Sutch. Appellants filed post-trial motions seeking a new trial as well as an order holding Raynor in contempt and awarding sanctions in the aggregate amount of counsel fees and costs for the first trial ($1,349,063.67). The court granted the motion for a new trial. The court found Raynor to be in civil contempt and issued an order for sanctions in the amount of $946,195.16 to be divided among appellants. The Pennsylvania Supreme Court addressed whether the Superior Court properly determined a request for contempt sanctions against opposing counsel raised in a post-trial motion in a lawsuit where neither counsel was a named party, constituted actionable “civil proceedings” under the Dragonetti Act. The Supreme Court concluded that intra-case filings, such as the subject post-trial motion for contempt and/or sanctions, did not constitute the “procurement, initiation or continuation of civil proceedings” as contemplated under the Dragonetti Act. The Superior Court erred when it held otherwise.

Uniontown Newspaper, et al v. PA Dept of Cor.

Court: Supreme Court of Pennsylvania

Docket: 76 & 77 MAP 2019

Opinion Date: December 22, 2020

Judge: Mundy

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law, Legal Ethics

In September 2014, prior to the request for the records at issue in this case, the Abolitionist Law Center published a report which alleged a causal connection between the ill health of inmates at SCI-Fayette, and the facility’s proximity to a fly ash dumpsite. In response to the report, the Pennsylvania Department of Corrections (DOC) coordinated with the Department of Health (DOH) to investigate the allegations (the No Escape Investigation). Reporter Christine Haines of The Herald Standard (Appellees) sent an e-mail Right-to-Know-Law (RTKL) request to the DOC seeking documentation of inmate illnesses. The DOC denied Appellees' request in its entirety, citing several exceptions under Section 708(b) of the RTKL, as well as attorney-client privilege and deliberative process privilege grounds. Then in December 2014, in-house counsel for the DOC disclosed fifteen pages of records to Appellees. Appellees asked DOC to verify that its December disclosure was a complete response. Several additional records were subsequently released, but implicitly, the records released were the DOC's response. In February 2015, Appellees filed a petition for enforcement with the Commonwealth Court, seeking statutory sanctions and attorney fees alleging DOC demonstrated bad faith in responding to the request for records. The court identified records that the DOC should have provided. But because the panel could not discern the full extent of any non-compliance by DOC, the panel directed the parties to file a stipulation as to the disclosure status of court-identified five classes of records. Appellees' motion was thus denied without prejudice, and the court reserved judgment on the issue of bad faith sanctions. The Pennsylvania Supreme Court granted appeal in this matter to consider the assessment of sanctions and fees based on the Commonwealth Court's finding of bad faith and willful and wanton behavior. The Supreme Court ultimately affirmed, finding that Section 1304(a0(1) of the RTKL “permit[s] recovery of attorney fees when the receiving agency determination is reversed, and it deprived a requester of access to records in bad faith.”

Woodford v. PA Insurance Dept.

Court: Supreme Court of Pennsylvania

Docket: 65 MAP 2019

Opinion Date: December 22, 2020

Judge: Dougherty

Areas of Law: Civil Procedure, Consumer Law, Contracts, Government & Administrative Law, Insurance Law

In a matter of first impression, the Pennsylvania Supreme Court granted review in this case to consider whether Section 310.74(a) of the Insurance Department Act of 1921 prohibited a licensed insurance producer from charging fees in addition to commissions in non-commercial, i.e. personal, insurance transactions. During its investigation, the Department discovered that, between March 2011 and October 2015, appellants charged a non-refundable $60- $70 fee to customers seeking to purchase personal insurance products. These fees were collected from the customers before appellants prepared the insurance policy applications. One consumer complaint indicated appellants kept an “un- refundable broker application fee” when the consumer declined to buy a policy. The Department’s investigation also revealed appellants paid a “one-time” $50 referral fee to car dealership sales personnel when they referred their customers in need of insurance. The Department concluded appellants’ fee practices included improper fees charged to consumers “for the completion of an application for a contract of insurance” and prohibited referral payments to the car dealerships. The Supreme Court held lower tribunals did not err when they determined Section 310.74(a) of the Act did not authorize appellants to charge the $60-$70 non-refundable fee to their customers seeking to purchase personal motor vehicle insurance. The Commonwealth Court’s decision upholding the Commissioner’s Adjudication and Order was affirmed.

In re Commitment of Jeffery Lee Stoddard

Court: Supreme Court of Texas

Docket: 19-0561

Opinion Date: December 18, 2020

Judge: Debra Lehrmann

Areas of Law: Civil Procedure, Criminal Law

The Supreme Court reversed the judgment of the court of appeals reversing a jury's finding that Jeffery Lee Stoddard was a sexually violent predator (SVP) and civilly committing him under Tex. Health & Safety Code chapter 841, holding that the court of appeals applied an improper standard. The court of appeals described the standard governing the factual sufficiency review in which the burden of proof was beyond a reasonable doubt the court of appeals described the standard as requiring the court to weigh the evidence in a neutral light to determined whether the jury's finding was factually insufficient or so against the great weight and preponderance as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. The Supreme Court reversed, holding (1) the court of appeals applied an improper standard that allowed the court to substitute its own judgment for that of a reasonable fact-finder and incorporated a statutory element that chapter 841's text did not support; and (2) a properly conducted factual-sufficiency review in an SVP case requires the appellate court to determine whether, on the entire record, a reasonable factfinder could find beyond a reasonable doubt that the defendant is an SVP.