Insurance
-- Bad faith -- Jurisdiction -- Removal of state court action to federal court
-- Remand to state court -- Diversity -- Under 28 U.S.C. section 1446(b),
motion to remand bad faith action, which was removed to federal court on the
basis of diversity, is granted where insurer's notice of removal was filed more
than a year after “commencement of the action” -- Argument that action did not
commence until plaintiffs amended complaint to add bad faith claim and
underlying judgment on initial uninsured motorist contract claim became final,
is rejected -- Under law of Florida, where action was originally filed, a civil
action is commenced on date initial compliant is filed -- Further, plain
language of section 1446(b) suggests that “commencement of the action” means
the filing of original complaint that sets in motion resolution of all claims
that may properly disposed of in the action, and addition of a new claim does
not reset one-year limitation period -- Insurer's effort to invoke “separate
and independent” controversy doctrine for invoking federal jurisdiction in
removal action based purely on diversity necessarily fails where judiciary has
been effectively divested of its power to analyze diversity actions under
section 1441(c)
THOMAS A. MOULTROP and PATRICIA GUY
MOULTROP, plaintiffs, v. GEICO GENERAL INSURANCE COMPANY, defendant. U.S.
District Court, Southern District of Florida.
Insurance
-- Property -- Conditions precedent -- Examination under oath -- Error to enter
summary judgment in favor of Florida Insurance Guaranty Association, as
successor in interest for insurer, based on failure of insured and,
subsequently, its assignee to submit to examination under oath where FIGA
failed to plead and prove prejudice -- Moreover, record indicates that FIGA was
not prejudiced
WHISTLER'S PARK, INC., Appellant, v.
THE FLORIDA INSURANCE GUARANTY, ETC., Appellee. 5th District.
Health Care Reform: TAXES LURK BEHIND COURT
TEST OF OBAMA HEALTH LAW, 20 No. 1 Westlaw Journal Health Law 3, Westlaw
Journal Health Law May 24, 2012 WASHINGTON, May 16 (Reuters) - While Supreme
Court watchers focus on the controversial insurance requirement in President
Obama's health care law, lesser known is that the court's upcoming ruling will
also decide the fate of billions of dollars in new taxes. The 2010 law includes
a 3.8 percent boost in taxes on investment income and a 0.9 percent increase in
the Medicare payroll tax, both hitting people who earn more than $200,000 a
year.
Health
Care Reform: U.S. SETS DEADLINE FOR PROPOSALS ON STATE HEALTH CARE EXCHANGES,
20 No. 1 Westlaw Journal Health Law 4, Westlaw Journal Health Law May 24, 2012
WASHINGTON, May 16 (Reuters) - The Obama administration forged ahead with
health care reforms, announcing a Nov. 16 deadline for state governments to
submit proposals showing how they intend to operate health insurance exchanges
in 2014. The Department of Health and Human Services released a detailed
blueprint of the legal and operational requirements states must meet in their
proposals if they expect to win federal approval to begin operating regulated
insurance markets, in whole or in part.
Health
Care Reform/Health Exchanges: NEW JERSEY GOVERNOR VETOES HEALTH EXCHANGE BILL,
CALLS IT 'PREMATURE', 20 No. 1 Westlaw Journal Health Law 5, Westlaw Journal
Health Law May 24, 2012 Rejecting a key provision of President Obama's health
care overhaul law, Republican New Jersey Gov. Chris Christie has vetoed a
measure that would have set up a health insurance exchange in the state. The
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, requires most
Americans to carry health insurance by 2014 or face a fine. To help consumers
meet this mandate, the law calls for states to establish "health
exchanges," an online marketplace that would give small employers
Health
Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS,
20 No. 1 Westlaw Journal Health Law 6, Westlaw Journal Health Law May 24, 2012
Primary care physicians could see a pay raise in the next two years for treating
Medicaid patients under a rule proposed May 9 by the Obama administration. The
Department of Health and Human Services said the increase would bring service
fees for Medicaid primary care in line with those paid by Medicare. Under the
rule, physicians would see a 34 percent increase in average Medicaid primary
care payments, according to the HHS.
Veterans
Health Benefits: VETS LOSE SUIT ON MENTAL HEALTH CARE, Veterans for Common
Sense v. Shinseki, 20 No. 1 Westlaw Journal Health Law 7, Westlaw Journal
Health Law May 24, 2012 Courts cannot order the U.S. Department of Veterans
Affairs to overhaul the way it cares for the treatment of military veterans
with combat-related illnesses, a federal appeals court has ruled. The full 9th
U.S. Circuit Court of Appeals said allegations of systemic delays and neglect
in mental health care for veterans is something Congress, not the courts, needs
to address.In a 10-1 decision, the appellate court reversed a prior 2-1 ruling
by a 9th Circuit panel.
Reproductive
Rights/Legislation: ARIZONA BANS FUNDING FOR PLANNED PARENTHOOD, OTHER ABORTION
PROVIDERS, 20 No. 1 Westlaw Journal Health Law 8, Westlaw Journal Health Law
May 24, 2012 Arizona Gov. Jan Brewer, R, has signed a bill that bans Planned
Parenthood and other family planning organizations that perform abortions from
receiving public funds. Signed into law May 4, House Bill 2800 excludes cases
in which a clinic needs to perform an abortion in order to save the life of the
mother or if the pregnancy is the result of an act of rape or incest. The
legislation applies to any health care provider that is eligible for federal
funding under 42 U.S.C. 1396d(1)(2)(B)
Reproductive
Rights: JUDGE STOPS TEXAS FROM BARRING PLANNED PARENTHOOD FROM HEALTH PROGRAM,
Planned Parenthood Ass'n of Hidalgo County v. Suehs, 20 No. 1 Westlaw Journal
Health Law 9, Westlaw Journal Health Law May 24, 2012 A federal judge has
temporarily blocked the state of Texas from excluding Planned Parenthood
clinics from participating in the government-funded Women's Health Program
because the organization provides abortions. The state's Health and Human
Services Commission initiated a rule last year barring it from contracting with
entities affiliated with abortion providers.Putting the state rule on hold
until he can hear full arguments in the case.
Medical
Devices/Patents: CORDIS TO APPEAL $40 MILLION JUDGMENT IN STENT PATENT CASE,
Boston Scientific Corp. v. Cordis Corp., 20 No. 1 Westlaw Journal Health Law
10, Westlaw Journal Health Law May 24, 2012 Cordis Corp. has filed a notice of
appeal in response to a $40 million judgment entered in favor of Boston
Scientific Corp. after a Delaware federal judge doubled a jury verdict in a
stent design patent dispute. U.S. District Judge Sue L. Robinson of the
District of Delaware issued the enhanced damages order March 13, saying the
doubling of the jury's $19.5 million award was "reasonable under the
circumstances."She denied Cordis' motion for judgment as a matter of law
Medical
Malpractice: CALIFORNIA JURY AWARDS $74.5 MILLION FOR GIRL'S BIRTH INJURIES,
Blunt v. Haupt, 20 No. 1 Westlaw Journal Health Law 11, Westlaw Journal Health
Law May 24, 2012 A California jury has awarded $74.5 million to the parents of
a 3-year-old girl who suffers from cerebral palsy allegedly caused by an
obstetrician's negligence during her birth. The San Luis Obispo County Superior
Court jury awarded $53 million in future medical expenses for Jennifer and
Andrew Blunt's daughter Sofia, in addition to $21.5 million in damages for
emotional distress, future lost wages and noneconomic damages. The verdict is
thought to be one of the largest in California history.
Nursing
Homes: CLASS ACTION ALLEGES INADEQUATE STAFFING AT CALIFORNIA NURSING HOMES, Mingura
v. HCR ManorCare, 20 No. 1 Westlaw Journal Health Law 12, Westlaw Journal
Health Law May 24, 2012 Nursing home chain HCR ManorCare lured elderly and
dependent adults to enter its facilities in California by concealing that they
regularly fell below the "bare minimum" staffing requirements, a
class-action lawsuit alleges. Plaintiff Rebeca Mingura says the company
violated state health and consumer protection laws by failing to provide
adequate staff to fulfill the legal minimum amount of direct nursing care to
each patient.
Torts
-- Nursing homes -- Jurisdiction -- Non-residents -- Action against
non-resident defendants who had ownership interests in entities that owned and
operated Florida nursing homes -- Circuit court erred in finding that it had personal
jurisdiction over defendants where, although plaintiff established defendants'
ownership interests in nursing home's operating and management companies,
plaintiff failed to establish any connexity between defendants' financial
interests and alleged abuse from which plaintiff's claims arise, and failed to
show that defendants have sufficient minimum contacts -- Plaintiff failed to
demonstrate that defendants had control over day-to-day operations of nursing
home sufficient to establish agency relationship where affidavit provided by
plaintiff established nothing more than defendants' ownership interest --
Ownership interest, without more, is insufficient to establish personal
jurisdiction over non-resident defendants
HARRIS
SCHWARTZBERG; HARRIS SCHWARTZBERG TRUST; STEVEN SCHWARTZBERG TRUST; JUDITH
SCHWARTZBERG TRUST; SCHWARTZBERG DESCENDANTS TRUST; HARRIS SCHWARTZBERG 2003
TRUST; STEVEN SCHWARTZBERG 2003 TRUST; HS MIDWEST TRUST #1; JS MIDWEST TRUST;
FAM MIDWEST TRUST; JUDITH SCHWARTZBERG 2003 TRUST; HARRIS SCHWARTZBERG 2004 GST
TRUST 1; HARRIS SCHWARTZBERG 2004 GST TRUST 2; JUDITH SCHWARTZBERG 2004 GST
TRUST 1; JUDITH SCHWARTZBERG 2004 GST TRUST 2; SCHWARTZBERG FAMILY 2004 GST
TRUST; SCHWARTZBERG 2004 DESCENDANTS TRUST; JS NATIONAL TRUST; HS NATIONAL TRUST
#1; HS NATIONAL TRUST #2; FAM NATIONAL TRUST; and MAXWELL STOLZBERG,
Appellants, v. KIM K. KNOBLOCH, as Personal Representative of the Estate of
William Knobloch, Deceased, Appellee. 2nd District.
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