7th Circuit Slaps Lawyer for 345-Word Sentence and Briefs Full of ‘Gibberish’

Posted from ABAJournal Sept. 20, 2011, by Debra Cassens Weiss

A federal appeals court is so aggravated by the quality of an Illinois lawyer’s legal writing that it has ordered him to show cause why he shouldn’t be barred from practicing before the court.
Lawyer Walter Maksym was “unable to file an intelligible complaint,” despite three tries given him by the trial court, according to the opinion (PDF) by the Chicago-based 7th U.S. Circuit Court of Appeals. “Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing,” the appeals court said. In addition, “Maksym’s appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court,” the court added.  More.

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Insurance and health law, nursing homes, arbitration and lamb with rustic tomato, mint and onion coulis

Abuse & Neglect: FAMILY LOSES APPEALS COURT BID FOR EXTRA PENALTIES AGAINST HOSPITAL, Carter v. Prime Healthcare Paradise Valley, 7 No. 7 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice September 9, 2011

The children of a now-deceased man who allegedly received substandard care at a hospital did not meet pleading standards to pursue enhanced remedies under California's elder-abuse law, an state appellate panel has ruled. The 4th District Court of Appeal said the complaint filed by Roosevelt Grant's children did not show that Paradise Valley Hospital acted recklessly or maliciously in caring for their father, Roosevelt Grant.

Abuse & Neglect: FACILITY LOSES BID TO RETRY NEGLIGENCE SUIT AS MEDICAL MALPRACTICE, Vice v. Elmcroft of Hendersonville, 14 No. 5 Westlaw Journal Nursing Home 4, Westlaw Journal Nursing Home September 9, 2011

The Tennessee Court of Appeals has upheld a $250,000 jury verdict against an assisted living facility for an elderly resident's falls, finding the claims sound in ordinary negligence and not medical malpractice. Cathy Vice's negligent-admission claims against Elmcroft of Hendersonville do not allege medical malpractice because there is no evidence that the facility relied on a medical professional's assessment when it admitted Vice's mother, the three-judge panel said.

 

Abuse & Neglect: HOSPITAL CAUSED MAGGOT INFESTATION OF WOUND SITE, SUIT SAYS, Kassem v. Holy Cross Hosp., 14 No. 5 Westlaw Journal Nursing Home 3, Westlaw Journal Nursing Home September 9, 2011

A Chicago-area hospital's failure to provide proper medical care resulted in a maggot infestation of a stroke victim's wound site and may have caused his death, his family alleges in a state court lawsuit. The suit says the hospital's shoddy housekeeping, poor care in treating the wound site where the patient underwent a tracheostomy and overall negligence ultimately caused or contributed to his death Oct. 30, 2009

Abuse & Neglect: NURSING HOME STAFF PERFORMED 'LAP DANCE' ON ELDERLY MAN, SUIT ALLEGES, Roberts v. Mount Royal Towers, 14 No. 5 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home September 9, 2011

A 97-year-old Alzheimer's patient was abused and exploited when a worker at a residential facility performed a "lap dance" on him and posted a video of the incident on YouTube, his family claims in an Alabama lawsuit. Staff at Mount Royal Towers caused Walter A. Roberts to suffer humiliation, an invasion of privacy and unwanted publicity as a result of the video made and disseminated without his consent, the lawsuit says.

Arbitration Nursing Facility Agreement: ILLINOIS PANEL FINDS 'UNILATERAL' ARBITRATION AGREEMENT INVALID, Carter v. SSC Odin Operating Co., 14 No. 5 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home September 9, 2011

A deceased nursing home resident's estate is not bound by the terms of her arbitration agreement with the facility because the contract does not mutually obligate both parties, an Illinois appellate panel has ruled. On remand from the state Supreme Court, the 5th District Appellate Court said the arbitration agreements signed by Joyce Gott and her legal representative are governed by the Federal Arbitration Act, 9 U.S.C. 1-16, but unenforceable under the doctrine of mutuality of obligation

Autism and Insurance: JUDGE CERTIFIES CLASS IN AUTISM-THERAPY SUIT AGAINST CIGNA, Churchill v. Cigna Corp., 21 No. 48 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage September 9, 2011

A federal judge in Philadelphia has concluded that class certification is appropriate for a lawsuit alleging health insurer Cigna Corp. improperly refused to cover two types of behavioral treatments for people with autism. The proposed class of individuals denied benefits for treatment of autism spectrum meets federal certification requirements, U.S. District Judge Juan R. Snchez of the Eastern District of Pennsylvania said.

 

Autism: IN-SCHOOL AUTISM CARE COVERED, PENNSYLVANIA JUDGE SAYS, Burke v. Independence Blue Cross, 21 No. 48 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage September 9, 2011

A health insurance carrier must pay for treatment and therapy provided to an autistic child at his private elementary school despite an "in-school" exclusion, a Pennsylvania judge has ruled in a case of first impression. Judge Idee C. Fox of the Philadelphia County Court of Common Pleas held the Pennsylvania Autism Insurance Act, 40 Pa. Stat. 764h(a), requires health insurers to cover the behavioral analysis services provided by private schools to children with autism spectrum disorders.

Billing Fraud: DOCTORS, PHARMACISTS AMONG 26 CHARGED IN $37 MILLION BILLING FRAUD SCHEME, United States v. Patel, 14 No. 5 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home September 9, 2011

Four doctors, 12 pharmacists and 10 others have been charged in a grand jury indictment with allegedly participating in a large-scale scheme coupling the illegal distribution of prescription drugs with $37 million in fraudulent billing to Medicare, Medicaid and private insurers.

Coverage Dispute: FEDERAL JUDGE REJECTS COVERAGE FOR FARMER'S FATAL HEATSTROKE, Esparza v. Burlington Ins. Co., 7 No. 9 Westlaw Journal Insurance Bad Faith 4, Westlaw Journal Insurance Bad Faith September 7, 2011

An automobile exclusion in a California farm contractor's general liability policy precludes coverage in a dispute with the family of a laborer who died of heatstroke while loading grapes onto a truck, a federal judge has ruled. U.S. District Judge Lawrence J. O'Neill of the Eastern District of California said farm labor contractor Esparza Enterprises Inc. failed to demonstrate that its commercial general liability policy covered inadequate safety precautions for heat.

Coverage Dispute: INSUREDS' FAILURE TO PROVIDE DOCUMENTS NULLIFIES BAD-FAITH SUIT, Foster v. State Farm, 7 No. 9 Westlaw Journal Insurance Bad Faith 3, Westlaw Journal Insurance Bad Faith September 7, 2011

An Indiana federal judge has tossed out claims for breach of contract and bad faith in a fire-loss case in which the policyholders failed to provide requested documents a year after the fire because they thought the requests were unreasonable. "As a general matter, it should be noted that insureds cannot put conditions on their existing contractual duties," U.S. District Judge Theresa L. Springmann of the Northern District of Indiana said.

Disability: MISTAKEN IDENTITY ALLOWS INSURED TO PROCEED WITH BAD-FAITH SUIT, Barbour v. Unum Life Ins. Co. of Am., 7 No. 9 Westlaw Journal Insurance Bad Faith 1, Westlaw Journal Insurance Bad Faith September 7, 2011

A woman can proceed with claims that her insurance carriers acted in bad faith when they denied her disability benefits based on a surveillance video that they mistakenly believed was of her, a California federal judge has ruled. Finding that the insurers' conduct could be construed as "outrageous," U.S. District Judge William Q. Hayes of the Southern District of California also held that Patricia Barbour can move forward with her claim for intentional infliction of emotional distress.

 

 

Eating Disorders: CALIFORNIA LAW REQUIRES COVERAGE OF RESIDENTIAL TREATMENT FOR ANOREXIA, COURT RULES, Harlick v. Blue Shield of Cal., 21 No. 48 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage September 9, 2011

A California insurance law requires Blue Shield to cover residential treatment for a policyholder who suffered from an eating disorder, the 9th U.S. Circuit Court of Appeals has ruled. The three-judge panel said California health insurance carriers must provide all "medically necessary treatment" to policyholders with severe mental illnesses equal to those with physical problems.

Failure to Refer: PA. MAN SAYS FAMILY DOCTOR WASN'T QUALIFIED TO TREAT HIS EYE CONDITION, Salandro v. Jakubek, 7 No. 7 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice September 9, 2011

A Pennsylvania primary care physician's lack of the necessary skill and training to properly diagnose and treat a man's eye condition resulted in further injury and the need for a corneal transplant, according to a complaint filed in state court.

Full Faith and Credit: INSURERS WIN RACE TO COURTHOUSE IN CONTAMINATION DISPUTE, N. States Power Co. v. Cont'l Ins. Co., 21 No. 48 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage September 9, 2011

A Wisconsin appeals court has dismissed a policyholder's suit stemming from the alleged contamination of four former gas plants because a Minnesota judgment in favor of the defendant excess insurers was entitled to full faith and credit. The three-judge panel unanimously ruled the Minnesota judgment was entitled to full faith and credit because it was authenticated, final and rendered by a court with jurisdiction over the parties.

Hospital Negligence: TEEN'S DEATH WHILE HOSPITALIZED FOR SORE THROAT SPURS EXCESS DAMAGES CLAIM, Abbiehl v. Comm'r of Ins., 7 No. 7 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice September 9, 2011

An Indiana family whose daughter died two days after being admitted to a hospital for treatment of an inflamed and swollen throat is seeking $1 million in damages from a state malpractice fund. Amanda Abbiehl, 19, was admitted to St. Joseph's Regional Medical Center July 15, 2010, for treatment of dehydration and a swollen throat that prevented her from swallowing her own saliva, according to the petition for excess damages.

Household Exclusion: HOUSEHOLD EXCLUSION PRECLUDES COVERAGE OF AUTO ACCIDENT, State Farm v. Menendez, 21 No. 48 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage September 9, 2011

The Florida Supreme Court has ruled that the household exclusion in a State Farm auto policy bars coverage for bodily injuries suffered by members of the household of a permissive driver. Reversing a state appeals court, the unanimous high court said the household exclusion in Gilda Menendez's policy unambiguously applied to a driver given permission to drive her car and, therefore, could be enforced to eliminate coverage for bodily injuries sustained by the driver's parents.

Hurricane Irene: INSURANCE LAWSUITS TO FOLLOW IRENE, 21 No. 48 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage September 9, 2011

NEW YORK, Aug. 31 (Reuters) - As the water recedes from Hurricane Irene, lawyers are expecting disputes over insurance coverage to pour in. The biggest fights will stem from arguments over property damage and whether it resulted from wind or water, legal experts said. Similar questions arose in the aftermath of Hurricane Katrina six years ago.

 

Hurricane Katrina: OWNERS OF KATRINA-DAMAGED HOME LOSE BAD-FAITH CLAIMS, Jouve v. State Farm, 7 No. 9 Westlaw Journal Insurance Bad Faith 5, Westlaw Journal Insurance Bad Faith September 7, 2011

A Louisiana appeals court has tossed bad-faith claims filed by a pair of New Orleans homeowners who claimed their insurance carrier acted improperly when adjusting their claim for damage caused by Hurricane Katrina. The 4th Circuit Court of Appeal found no evidence that the insurer acted arbitrarily or capriciously in adjusting the claim.

 

Informed Consent: MAN'S TESTICLE REMOVED WITHOUT CONSENT, CALIFORNIA SUIT SAYS, Radillo v. Sanford, 7 No. 7 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice September 9, 2011

A Los Angeles man says in a lawsuit that he was shocked to find his left testicle had been removed after he consented only to an elective incision and drainage of an abscess. Richard Radillo says the unauthorized surgery depleted his testosterone and left him sterile, among other things. Radillo sued urologist Robert Sanford and his practice, Comprehensive Urology Medical Group, in the Los Angeles County Superior Court.

 

Informed Consent: KENTUCKY JURY FINDS NO MALPRACTICE IN PENIS AMPUTATION SUIT, Seaton v. Patterson, 7 No. 7 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice September 9, 2011

A Kentucky jury has cleared a urologist of negligence in the 2007 amputation of a man's penis, the Louisville Courier-Journal reported Aug. 25. Phillip Seaton said Dr. John M. Patterson amputated his penis during what was supposed to be a circumcision to treat an inflammation without first consulting him or giving him an opportunity to seek a second opinion (see West's Medical Malpractice Law Report, Vol. 4, Iss. 10).

General Fidelity Ins. Co. v. Foster ,(S.D.Fla.)

Insurance - Excessive elements in allegedly defective drywall were pollutants excluded from coverage under commercial general liability (CGL) policy.

The excessive elements of sulfur and strontium that allegedly comprised defective gypsum drywall were "pollutants" falling within certain commercial general liability (CGL) policies' pollution exclusion. A homeowner's personal injury and property damage that were allegedly caused by the insured contractors' use of the drywall to build her home thus were not covered under the policies and the insurer had no duty to defend the contractors from the homeowner's claims. The policy defined a pollutant as an "irritant" or "contaminant", the plain meaning of which encompassed the homeowner's claims that the drywall caused "damage and corrosion", including the "pitting and/or tarnishing" of metals, and "respiratory problems, sinus problems, eye problems, and nosebleeds."

Jury Verdict: ILLINOIS PANEL AFFIRMS DISMISSAL OF $1 MILLION NEGLIGENCE VERDICT, Garcia v. Seneca Nursing Home, 14 No. 5 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home September 9, 2011

An Illinois trial court properly vacated a $1 million jury verdict against a nursing home for the fall-related death of a mentally ill resident because the jurors' response to a special question was irreconcilable with the verdict, a state appeals court has ruled.

Legislation: FTC SAYS N.Y. BILL NIXING MAIL-ORDER MEDS HURTS CONSUMERS, 14 No. 5 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home September 9, 2011

A bill in New York that would restrict health insurers from steering beneficiaries to lower-cost mail-order providers of prescription drugs has drawn criticism from the Federal Trade Commission. In response to a request for comment from Republican state Sen. James L. Seward, the federal agency said New York Assembly Bill 5502-B could have anti- competitive effects for consumers. The bill is designed to give patients more choices of how and where their prescriptions are filled.

Life Insurance (Class Action): INSURER CALCULATES BENEFITS WITH FUNNY MATH, CLASS ACTION ALLEGES, Young v. Jackson Nat'l Life Ins., 7 No. 9 Westlaw Journal Insurance Bad Faith 7, Westlaw Journal Insurance Bad Faith September 7, 2011

Jackson National Life Insurance misleads customers about how it calculates death benefits and defrauds beneficiaries out of thousands of dollars, a life insurance beneficiary alleges in a California state court class action. When plaintiff David Young's mother passed away, he received benefits from her single-premium whole life policy with Jackson National, he says in the complaint filed in the Los Angeles County Superior Court.

Life Insurance: NEW YORK LIFE SUED OVER UNPAID INTEREST, Patel v. N.Y. Life Ins. Co., 7 No. 9 Westlaw Journal Insurance Bad Faith 6, Westlaw Journal Insurance Bad Faith September 7, 2011

A life insurance beneficiary has sued New York Life in Manhattan federal court, alleging the company paid a lower interest rate on her proceeds than the policy guaranteed. The class-action complaint filed by Vaijanti Patel in the U.S. District Court for the Southern District of New York accuses the company of breaching a contractual duty to pay a fixed interest rate of 3.5 percent of her policy proceeds.

Limitation-of-Action Clause: INSURER CAN ENFORCE LIMITATION-OF-ACTION CLAUSE, OHIO HIGH COURT SAYS, Dominish v. Nationwide Ins. Co., 21 No. 48 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage September 9, 2011

The Ohio Supreme Court has ruled that Nationwide Insurance Co. correctly denied coverage for damage to a house caused by a fallen tree because the policyholder failed to sue within the policy's one-year limitation period, which the insurer never waived. The 7-0 majority ruled that the homeowners policy plainly stated that any lawsuit to enforce its terms against Nationwide had to be commenced within a year of the loss or damage sustained.

Antitrust & Trade Regulation, Contracts, Insurance Law

Trailer Bridge, Inc. v. Illinois Nat'l Ins. Co. (11th Cir.)

Trailer Bridge appealed the district court's grant of summary judgment in favor of Illinois National on Trailer Bridge's complaint, alleging that Illinois National failed to defend Trailer Bridge in an underlying antitrust action and thereby breached its commercial general liability insurance policy issued to Trailer Bridge for the year July 2004 to July 2005. The central issue on appeal was whether the CEO's statement triggered the duty to defend under the "personal and advertising injury" provision in the policy. After review and oral argument, the court held that the district court did not err in granting summary judgment for Illinois National for the reasons set forth in the district court's order, which the court adopted as its own. In particular, the court agreed with the district court's rejection of Trailer Bridge's argument that the CEO's statement deployed the advertising idea of "another." The court rejected Trailer Bridge's contention that the use of a co-defendant's idea could qualify as an "offense" under the policy. The underlying plaintiffs sought only antitrust damages; they did not seek to impose any legal obligations upon the insured to pay them damages "because of . . . advertising injury." No facts were alleged in the underlying complaint on the basis of which the underlying plaintiffs might have recovered damages "because of . . advertising injury"; and the underlying plaintiffs could not have recovered such damages because the allegedly misappropriated "advertising idea" was not that of the underlying plaintiffs, but rather was alleged to have been the advertising idea of other parties altogether.

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Health and insurance law developments, arugula and roasted peppers with balsamic vineger glaze and pine nuts

Health Insurance: ACLU SUES TO BLOCK NEW KANSAS ABORTION INSURANCE LAW, ACLU v. Praeger, 21 No. 46 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage August 26, 2011

A Kansas statute that bars health insurers from covering abortions in their comprehensive plans violates the U.S. Constitution's 14th Amendment, the American Civil Liberties Union says in a federal court lawsuit. The ACLU of Kansas & Western Missouri is suing Kansas Insurance Commissioner Sandy Praeger to have the law overturned. The complaint alleges violations of the Constitution's due process and equal protection clauses."

Notice-Prejudice Rule: NEVADA SUPREME COURT FORMALLY ADOPTS STATE'S NOTICE-PREJUDICE RULE, Las Vegas Metro. Police Dep't v. Coregis Ins. Co., 21 No. 46 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage August 26, 2011

The Nevada Supreme Court has ruled that an insurer must show prejudice if it denies coverage because it received late notice of the claim. The high court's advisory opinion reversed a federal judge's decision to grant summary judgment to Coregis Insurance Co. in a lawsuit filed by the Las Vegas Metropolitan Police Department over excess coverage for a civil rights action.The judge had found that the insurer owed no coverage because the Police Department waited 10 years before notifying.

Fifth Amendment: INSURER'S SUIT AGAINST FRUIT COMPANY NOT RIPE FOR ACTION, Allied World Nat'l Assurance Co. v. SK PM Corp., 21 No. 46 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage August 26, 2011

An insurer seeking a rescission or reformation of its policy because the policyholder food producer allegedly falsified financial documents during coverage negotiations must wait until after a pending criminal trial involving similar allegations, a California federal judge has ruled. Allied World National Assurance Co. asked the U.S. District Judge Oliver W. Wanger of the Eastern District of California to rescind or reform policies it issued in 2009 to SK PM Group.

Advertising Injury: N.J. APPEALS COURT SAYS JUNK FAXES MAY BE COVERED, Penn Nat'l Ins. Co. v. Group C Commc'ns, 21 No. 46 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage August 26, 2011

An insurer's policies may cover unsolicited faxes that a business media company sent to advertise a trade show it hosted in Chicago, a New Jersey appellate panel has ruled. A suit over whether Penn National Insurance Co.'s primary or umbrella policies covered policyholder Group C Communications Co.'s alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. 227, raised unresolved fact questions, the Superior Court's Appellate Division found.

Advertising Injury: INSURER MUST LEAP TO DEFENSE OF FROG TAPE MAKER, Amco Ins. Co. v. Inspired Techs., 21 No. 46 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage August 26, 2011

An insurer must defend the manufacturer of Frog Tape in connection with a lawsuit accusing the manufacturer of using misleading advertisements in violation of the Lanham Act, the 8th U.S. Circuit Court of Appeals has ruled. The appeals court said the insurer failed to demonstrate that a "knowledge of falsity" exclusion precluded coverage of 3M Co.'s unfair-competition and false advertising claims because complaint states at least one arguably covered claim.

Coverage Dispute: FLOWER SHOPS DAMAGED BY HURRICANE IKE CAN PURSUE BAD-FAITH CLAIMS, Wholesale Flowers v. Union Ins. Co., 21 No. 46 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage August 26, 2011

The owners of three Houston flower shops can move forward with claims that their insurer acted in bad faith when it failed to pay for covered losses caused by Hurricane Ike, a Texas federal judge has ruled. U.S. District Judge Keith P. Ellison of the Southern District of Texas rejected the insurer's argument that the owners failed to plead sufficient facts to support their claims for bad faith, breach of contract and fraud.

Subrogation: ARMY CORPS SHOULD NOT HAVE PAID CONTRACTOR $700,000, INSURER SAYS, Hartford Fire Ins. Co. v. United States, 21 No. 46 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage August 26, 2011

An insurance company has sued the U.S. Army Corps of Engineers, alleging the agency wrongfully paid an insured contractor $700,000 to settle a dispute because the company was likely to default on a different government job. Hartford Fire Insurance Co.'s suit in the U.S. Court of Federal Claims says the Army Corps wrongfully settled the case with nonparty Overstreet Electric Co. The insurer says it was entitled to receive the settlement payment since it was going to cover.

Investigation of Claim: INSURED'S FAILURE TO TAKE EUO SHIELDS INSURER FROM BAD-FAITH CLAIM, Chan v. Empire Fire & Marine Ins., 21 No. 46 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage August 26, 2011

A California federal judge has tossed a bad-faith lawsuit against an insurance carrier that refused to compensate a policyholder for $90,000 in personal property that he claimed was stolen from his home. In granting summary judgment to the insurer, U.S. District Judge Edward J. Davila of the Northern District of California noted the policyholder failed to take an examination under oath or to provide the carrier with various financial statements it requested.

Coverage Dispute: FEDERAL JUDGE REJECTS COVERAGE FOR FARMER'S FATAL HEATSTROKE, Esparza v. Burlington Ins. Co., 21 No. 46 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage August 26, 2011

An automobile exclusion in a California farm contractor's general liability policy precludes coverage in a dispute with the family of a laborer who died of heatstroke while loading grapes onto a truck, a federal judge has ruled. U.S. District Judge Lawrence J. O'Neill of the Eastern District of California said farm labor contractor Esparza Enterprises Inc. failed to demonstrate that its commercial general liability policy covered inadequate safety precautions for heat.

State Farm Mut. Auto. Ins. Co. v. Menendez ,(Fla.)

Insurance - Household exclusion barred bodily injury claims of insured's daughter who resided in permissive driver insured's household.

The household exclusion provision in an automobile insurance policy, barring coverage for "any bodily injuryto" "any insured or any member of an insured's family residing in the insured's household," eliminated the bodily injury claims of the insured automobile owner's daughter and son-in-law who were residing in the household of the owner's granddaughter, as a permissive-driver insured, when they allegedly suffered injuries in a collision while riding as passengers in the owner's automobile while it was driven by the granddaughter. The exclusion's reference to family members "residing in the insured's household" encompassed family members residing in the household of any insured.

Torts -- Medical malpractice -- (Fla.)     New trial -- Preservation of issue -- Evidence -- Expert -- Trial court erred in granting a new trial on the basis that defense expert's trial testimony materially varied from deposition where plaintiff made no contemporaneous objection to the testimony, failed to timely move for mistrial, and instead cross-examined expert regarding his change in testimony and focused on the change in closing argument -- Testimony did not rise to the level of fundamental error where plaintiff could not claim surprise at expert's opinion given that plaintiff had sought to exclude those opinions on other grounds by way of pretrial motion in limine, any difference between expert's deposition and trial testimony was a matter of degree, and plaintiff was already prepared to address topic of opinion with contrary evidence since the issue was being addressed by other defense experts as well -- Remand to consider other grounds contained in plaintiff's motion not reached by trial court

VIEW OPINION

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Massage Parlor Mistrial Declared After Masseuse Recognizes Defense Lawyer as Client

A Chicago federal judge declared a mistrial last week in a sex-trafficking prosecution after a masseuse who worked for the defendant and testified for the prosecution recognized the defense lawyer as a client. More.

Posted by Debra Cassens Weiss in the ABA Journal Law News Today

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