Contracts, torts, medical devices and asparagus crepes with shaved parmesan and rosemary

Bodily Injury: COURT FINDS NO BODILY INJURY IN DEAD-BODIES CASE, Owners Ins. Co. v. Warren Funeral Chapel, 21 No. 41 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage July 22, 2011

A funeral home's insurer owed no coverage against allegations that the home caused emotional distress when it mishandled and improperly disposed of bodies because the discovery occurred months after its policy was canceled, a federal judge in Missouri has ruled. U.S. District Judge Nanette K. Laughrey of the Western District of Missouri noted that Owners Insurance Co.'s policy with Warren Funeral Chapel Inc. covered emotional distress under its definition of bodily injury.  

Child custody -- Parenting plan -- Time-sharing -- Evidence was insufficient to support trial court's finding that annual rotating time-sharing plan was in best interest of school-age child whose parents lived more than 300 miles apart -- Due process -- Moreover, trial court could not order annual, rotating time-sharing plan where neither parent requested such a plan in pleadings or argued for plan at final hearing

Reported at 36 Fla. L. Weekly D1699a

Civil rights -- Search and seizure -- Excessive force -- Male partygoer who was tased during tense incident outside of club prior to his arrest for disorderly conduct and resisting arrest without force and female partygoer who was knocked to the ground and knocked unconscious during incident, filed complaint against local police officers alleging multiple claims, including excessive force, and officers moved for summary judgment based on qualified immunity -- District court did not abuse discretion by considering plaintiffs' statement of material facts submitted with their brief opposing summary judgment, which did not comply with the letter of the local rule -- District court did not abuse discretion in considering depositions filed four days after filing deadline -- District court erred by denying qualified immunity to officer with respect to female plaintiff's excessive force claim because officer's taser report indicated that he applied contact tase to plaintiff, where plaintiff never based her excessive force claim on officer's contact tase, and district court should not have constructed theory of liability on plaintiff's behalf from facts that plaintiff never alleged -- A district court may look at all evidence in record to determine whether issue of material fact exists regarding the plaintiff's asserted causes of actions, but may not act as a plaintiff's lawyer and construct party's theory of liability from facts never alleged, alluded to, or mentioned during the litigation -- Officers, who fired taser probes into male plaintiff's chest and applied contact taser to back of his neck, are not entitled to summary judgment based on qualified immunity where officers' use of taser was excessive and law was sufficiently clear to put officers on notice that their conduct violated plaintiff's Fourth Amendment rights -- Under facts viewed in light most favorable to male plaintiff, officers' use of taser was excessive where crime for which plaintiff was arrested was not serious, plaintiff clearly did not present threat to officer safety or to safety of anyone else, and plaintiff was not resisting arrest or attempting to escape -- Unprovoked force against non-hostile and non-violent suspect who has not disobeyed instructions violates suspect's rights under Fourth Amendment -- Under either of two methods for determining whether reasonable officer would know that his conduct is unconstitutional, defendant-officers should have known that their conduct violated Fourth Amendment rights of plaintiff who was tased even though he committed at most a minor offense, did not resist arrest, did not threaten anyone, and did not disobey any instructions -- Officer, who tackled female plaintiff to ground after observing plaintiff screaming and stepping toward back of officer who was firing his taser at another partygoer, was entitled to qualified immunity where officer could have reasonably believed that plaintiff was about to attack officer from behind

Reported at 23 Fla. L. Weekly Fed. C176a

Police Misconduct (Expert Testimony): EX-L.A. COP CAN TESTIFY FOR CHICAGO POLICE-ASSAULT VICTIM, Obrycka v. City of Chicago, 8 No. 8 Westlaw Journal Expert and Scientific Evidence 1, Westlaw Journal Expert and Scientific Evidence July 20, 2011

An Illinois federal judge has ruled that a former member of the Los Angeles Police Department can testify on behalf of a bartender allegedly beaten by a Chicago officer when she refused to serve him more alcohol. Plaintiff Karolina Obrycka retained Lou Reiter as an expert witness to testify on an alleged "code of silence" within the Chicago's police department.In a July 5 ruling U.S. District Judge Amy St. Eve of the Northern District of Illinois rejected the city's argument otherwise.

Condominiums -- Assessment liens -- Trial court properly entered summary judgment for condominium association in its action to foreclose assessment lien where special assessment was passed in manner required by commercial condominium's bylaws and was for purpose of maintenance and repair of common elements, and there was no factual issue as to the validity of the assessment -- Unit owner's allegation of breach of fiduciary duty by association was not a valid defense to or avoidance of obligation to pay assessment lien -- Trial court properly severed lien foreclosure complaint from breach of fiduciary duty counterclaim, as facts giving rise to claims are not inextricably interwoven

Reported at 36 Fla. L. Weekly D1677b

Contracts -- Sale of hotel -- Directed verdict -- Trial court erred in granting directed verdict for plaintiff seller after plaintiff rested and prior to defendant having an opportunity to present any evidence -- Because defendant was not given any opportunity to call witnesses or to present any evidence regarding claim of fraudulent inducement, defendant was effectively denied due process

Reported at 36 Fla. L. Weekly D1676a

Life Insurance: WELLS FARGO'S 'STOLI' COUNTERSUIT PROCEEDS AGAINST INSURER, Pruco Life Ins. Co. v. Brasner, 21 No. 41 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage July 22, 2011

Wells Fargo can press a countersuit for negligent misrepresentation against a life insurer that allegedly verified a $10 million "stranger-originated life insurance" policy as valid, a Florida federal judge has ruled. U.S. District Judge James I. Cohn of the Southern District of Florida rejected Pruco Life Insurance Co.'s argument that the "economic loss" rule barred a negligent-misrepresentation claim because Wells Fargo Bank N.A. only alleged economic harm.

Employee Theft: ONGOING THEFTS WORTH $1.5 MILLION NOT 'OCCURRENCE' UNDER POLICY, IFCO Sys. N. Am. v. Am. Home Assurance Co., 21 No. 41 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage July 22, 2011

An insurer had no duty to cover alleged ongoing thefts of goods totaling $1.5 million by its policyholder's employee as the thefts did not meet the policy's definition of an occurrence, a Maryland federal court judge has ruled. American Home Assurance Co.'s policy with IFCO Systems North America defined an occurrence as an unintentional act, U.S. District Judge William M. Nickerson of the District of Maryland said. He granted AHAC's summary judgment motion, finding the insurer owed no coverage.

Mortgage Investment: MORTGAGE FIRM'S POLICY MIGHT COVER INVESTMENT, COURT FINDS, Certain Underwriters at Lloyd's London v. Cal. Mortgage & Realty, 21 No. 41 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage July 22, 2011

An insurer may have a duty to defend a mortgage brokerage firm under its errors-and-omissions policy against lawsuits seeking the return of a combined $9 million in investment funds, a California federal judge has ruled. U.S. District Court Judge William Alsup of the Northern District of California said a policy by Certain Underwriters at Lloyd's London might cover California Mortgage & Realty's alleged negligence in remitting funds or servicing investments.

Bad Faith: ATTORNEY'S ADVICE SHIELDS INSURER FROM BAD-FAITH FINDING, Finger v. State Farm, 21 No. 41 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage July 22, 2011

State Farm did not act in bad faith when it denied coverage of a judgment for slander based on the advice of its attorney, an Alabama federal judge has ruled. U.S. District Judge Kristi K. DuBose of the Southern District of Alabama called the insurer's post-verdict coverage denial "unusual" but concluded its reliance "on an experienced and highly qualified attorney's contradictory but thoroughly analyzed opinion was in good faith."The judge nevertheless ordered State Farm Fire to pay policyholders.

Auto: INSURER CAN'T DENY COVERAGE BASED ON CDL REQUIREMENT, Devese v. Transguard Ins. Co., 21 No. 41 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage July 22, 2011

The estate of an unlicensed commercial truck driver killed in a collision can move forward with claims for breach of contract and bad faith where the policy's license requirement was overbroad and designed to dodge coverage, Nebraska's highest court has ruled. The state Supreme Court held in a written opinion that the insurer failed to show a causal link between the driver's failure to maintain a commercial driver's license and the accident.

Wrongful death -- Nursing homes -- Arbitration -- Power of attorney -- Nonfinal order compelling arbitration of claims reversed where deceased's power of attorney did not authorize surrogate to consent to arbitration -- The language of the POA supports no conclusion that deceased intended to authorize surrogate to act for deceased in matters related to property rights or potential litigation with health care providers where POA specifically listed powers that related to the direct provision of medical care and identified surrogate as a “health care surrogate,” and the third parties whom POA directed to accept surrogate's actions were all related to the provision of health care -- Particularly persuasive is fact that language of POA is strikingly similar to language in health care surrogate statute -- Reversed and remanded with instructions to deny motion to compel arbitration

Reported at 36 Fla. L. Weekly D1684a

Pain Patch: W.VA. HIGH COURT REVIVES SUIT OVER MYLAN PAIN PATCH OVERDOSE, Mace v. Mylan Pharm., 18 No. 11 Westlaw Journal Medical Devices 1, Westlaw Journal Medical Devices July 18, 2011

A divided West Virginia Supreme Court of Appeals has restored a product liability suit filed against Mylan Pharmaceuticals by a man who says his wife died from an overdose of fentanyl that leaked from a pain patch. The high court, in a 2-1 decision, said a state circuit court judge erred when he dismissed the suit on forum non conveniens grounds without considering that the limitations period for the action in the other available forum, North Carolina, had expired.

Discovery: HOSPITAL INFECTION RATES NOT PRIVILEGED, ILLINOIS APPEALS COURT RULES, Zangara v. Advocate Christ Med. Ctr., 8 No. 8 Westlaw Journal Expert and Scientific Evidence 3, Westlaw Journal Expert and Scientific Evidence July 20, 2011

A Chicago-area hospital must disclose the number of its patients who contracted the deadly MRSA bacteria because the information is not protected by Illinois' peer-review privilege, a state appellate court has ruled. The 1st District Appellate Court reinstated lawsuits filed by Joseph Zangara and the family of Zigmund Dziamara, determining the plaintiffs had a legitimate reason for initially failing to attach affidavits of merit as required under state law.

Criminal law -- Search and seizure -- Vehicle -- Dog sniff -- Probable cause -- Trial court erred in determining that dog's alert on defendant's vehicle provided probable cause to search and in denying defendant's motion to suppress cocaine discovered in vehicle as a result of the search -- Dog's field accuracy rate was insufficient to establish a fair probability that drugs would be found following an alert where dog's field performance records indicated that dog had conducted seventeen vehicle sniffs and alerted to the presence of drugs fourteen times, but drugs were found after only four of those alerts -- The fact that officer documented and explained some type of narcotics history associated with each vehicle to which dog alerted but in which no drugs were found was relevant to the issue of whether an alert was false or an alert to a residual odor; however, the officer's explanations were not specific enough to establish the existence of residual odors on which dog should have alerted -- Nine of the unverified alerts where officer testified that vehicle had drug history or that someone in each vehicle had used narcotics recently are not considered in calculating dog's field accuracy rate because officer's explanations failed to identify what the drug history entailed, why it ensured that drugs had once been in the vehicle, how long before the stop someone in the vehicle had used narcotics, or how residual of an odor dog could be expected to detect -- Even if final unverified alert where officer testified that he actually smelled marijuana in the vehicle was added to dog's positive alert calculation, dog's accuracy rate is still only thirty-six percent, which is insufficient to establish reliability -- Additionally, the state's failure to set forth the details of the dog's alert on defendant's vehicle makes it impossible to tell if dog alerted on residual odor or whether he alerted on the actual cocaine itself -- Therefore, under a totality of the circumstances analysis, the state failed to present sufficient evidence to establish probable cause to believe that contraband actually would be found in vehicle after dog's alert

Reported at 36 Fla. L. Weekly D1688a

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