Notice of claim, insurance coverage, and roasted quail with cranberry and port wine sauce and grilled squash

Insurance -- Property -- Notice of claim -- Untimely notice -- Trial court erred in finding that insured's untimely notice of claim, served twenty-nine months after alleged loss, barred claim as matter of law -- Proper inquiry is whether insurer was prejudiced by untimely notice -- Remand for reconsideration of insurer's motion for summary judgment and insured's response for purposes of prejudice analysis
KINGS BAY CONDOMINIUM ASSOCIATION, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 4th District.


Timely Notice: DELAY IN NOTICE DOOMS PROPERTY OWNER'S COVERAGE CLAIM, 2ND CIRCUIT SAYS, Pfeffer v. Harleysville Group, 8 No. 16 Westlaw Journal Insurance Bad Faith 11, Westlaw Journal Insurance Bad Faith December 11, 2012
An apartment building owner who notified his insurance company more than two years after he learned a construction job had damaged his building failed to give his insurer timely notice of his claim, the 2nd U.S. Circuit Court of Appeals has affirmed. Although the owner notified his broker nearly immediately after learning of the damage, "notice to a broker is not notice to the carrier" under New York law, a three-judge appeals court panel said in a written opinion.


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Euro Court accepts dismissed ACLU suit originally rejected in US court

In a Dec. 13, 2012 post from Martha Neil on the ABA Journal, the Euro Court ruled, in a lawsuit originally filed in the U.S. but dismissed, that the man mistaken for a Terrorist was brutalized by the CIA.  "When a German car salesman filed suit in the U.S. claiming that he had been mistaken for an al-Qaida terrorist with a similar name and held for months and interrogated and brutalized in Macedonia and Afghanistan as part of a clandestine rendition program operated by the CIA, the case was dismissed because allowing the American Civil Liberties Union to pursue it would have violated a state secrets privilege.

But the European Court of Human Rights on Thursday found that Khaled el-Masri had been shackled, hooded, severely beaten and sodomized "at the hands of the CIA rendition team," the Associated Press reports.
The Guardian, the New York Times and the New Yorker's Close Read page also have stories and a post on NPR's blog, The Two-Way, provides additional background about the case.
Macedonia said it accepted the ruling of the court, which is based in Strasbourg, France, and would pay the judgment of approximately $78,000 awarded. The CIA declined comment.
In a press release last year, the ACLU discusses a petition it filed with the Inter-American Commission on Human Rights seeking redress against the U.S. There has reportedly been no response, so far, from the U.S."

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Ineffective assistance of counsel, unpled damages, and fresh kale sauteed with garlic, pistacchios, and topped with Manchego cheese shavings

 Criminal law -- Ineffective assistance of counsel -- Appeals -- Record does not justify resolving ineffective assistance of counsel claim on direct appeal -- Defendant may seek relief via rule 3.850 motion
RONALD FOX, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Post conviction relief -- Timeliness of motion -- Petition for belated appeal from conviction and sentence did not toll time limit to file rule 3.850 motion
WILBER BHERVIZ, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Health Care Reform (Contraception): OBAMA HEALTH LAW TO FACE RELIGION-BASED CHALLENGE, Liberty Univ. v. Geithner, 20 No. 7 Westlaw Journal Health Law 1, Westlaw Journal Health Law November 29, 2012
(Reuters) - The U.S. Supreme Court on Nov. 26 cleared the way for a Christian college to pursue a religion-based challenge against part of President Obama's health care reform, which it claims forces taxpayers and employers to subsidize abortions and contraception. Liberty University, based in Lynchburg, Va., may now also argue that Congress exceeded its power by requiring big employers to provide health care coverage to workers, though legal experts said the argument faces an uphill battle

Insurance -- Uninsured motorist -- Damages -- Trial court erred in denying insurer's motion for remittitur or new trial where verdict's award of damages for future medical expenses was not supported by evidence -- Where damages are sought for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable
GEICO INDEMNITY COMPANY, Appellant, v. POLLIE DeGRANDCHAMP, Appellee. 2nd District.

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Busy Mother Explains Her Untenable Schedule in Her Departure Memo from BigLaw

As a working mother, wife and lawyer, this post from Debra Cassens Weiss sums up the reasons women like us are leaving BigLaw to start our own firms with more flexible (not fewer) hours to pursue all the important parts of our lives: family, profession, continued learning, and, in my case, exotic gardening and gourmet cooking.  Read more below.

"If you’ve ever wondered why it can be so difficult to juggle motherhood and BigLaw, a Clifford Chance associate dubbed Ms. X explains it in a departure memo with a blow-by-blow account of her untenable daily routine.
Above the Law blogger Elie Mystal, himself a new father, posted the memo and commented on the contents. “In a way, it’s heartbreaking,” Mystal writes. “I don’t know this woman, and I don’t know what her hopes and dreams are or might have been, but it shouldn’t be so damn hard—in the richest country on Earth—to have a big-time job and be a loving parent.”
The departure memo reveals Ms. X’s struggle to find time to take care of her kids, meet client demands, and attend to necessities like sleeping, eating and bathing. It begins with an early morning awakening:
4:00am: Hear baby screaming, hope I am dreaming, realize I’m not, sleep walk to nursery, give her a pacifier and put her back to sleep
4:45am: Finally get back to bed
5:30am: Alarm goes off, hit snooze
6:00am: See the shadow of a small person standing at my bedroom door, realize it is my son who has wet the bed (time to change the sheets)
6:15am: Hear baby screaming, make a bottle, turn on another excruciating episode of Backyardigans, feed baby
7:00am: Find some clean clothes for the kids, get them dressed
7:30am: Realize that I am still in my pajamas and haven’t showered, so pull hair back in a ponytail and throw on a suit
8:00am: Pile into the car, drive the kids to daycare
8:15am: TRAFFIC
9:00am: finally arrive at daycare, baby spits up on suit, get kids to their classrooms, realize I have a conference call in 15 minutes.
Later in the day, there is a team meeting where the harried associate gets a 50-item to-do list, a late lunch, and a frantic email from a client who needs an answer to an urgent question by the close of business. Ms. X drafts a memo, and then submits it to a senior associate and partner who have conflicting advice. Her work day ends this way:
5:30pm: wait for approval to send response to client; realize that I am going to be late picking up the kids from daycare ($5 for each minute late)
5:50pm: get approval; quickly send response to client
6:00pm: race to daycare to get the kids (they are the last two there)
At home, Ms. X cooks a microwaved chicken nuggets dinner, then ticks off her next tasks: baths, pajamas, books and bed. At 9 p.m. she discovers 25 unread messages on her BlackBerry, and then begins work on task No. 2 on the to-do list, briefly nodding off at her desk. After task No. 3 is completed, she takes a shower at 1 a.m. and gets to bed at 1:30 a.m. Next on the list? “REPEAT.”"


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Health law, child custody, contracts and grilled organic grassfed beef with grilled asparagus and baby squash

Appeals -- Appellate court lacks jurisdiction of appeal of final judgment where no notice of appeal was filed within thirty days of date judgment was final and appealable -- Motion for supplemental final judgment was not an authorized and timely motion that would suspend rendition of final judgment -- Supplemental final judgment ruling on entitlement to attorney's fees is not final or appealable where amount to be awarded has not been determined
CATALINA HALNAT, LLC, et al., Appellants, v. SUN CITY VENDING OF S.F., INC., Appellee. 3rd District.

Appeals -- Nonfinal orders -- Interpleader -- Action brought by plaintiff employed as stock-transfer agent and registrar of corporation's stock against corporation and transferee, alleging there was dispute between transferee and corporation concerning transferee's right to have certain restrictive legends removed from her shares and to have such shares certificated in her individual name -- Order which merely granted summary judgment declaring that transferee was entitled to have shares certificated in her individual name was a nonfinal, nonappealable order did not actually direct stock-transfer agent to do anything and did not dispose of all issues involved in the litigation -- Summary judgment determining entitlement but not actually ordering the transfer of shares did not have effect of granting stockholder the immediate possession of property -- Appeal dismissed for lack of jurisdiction
FLORIDA ATLANTIC STOCK TRANSFER, INC., a Florida corporation, Appellant, v. ROBIN L. SMITH and NORTH CAPITAL PARTNERS, INC., Appellees. 4th District.

Attorney's fees -- Interest -- Award of attorney's fees stating that sums would bear interest at rate of 6% per year from date of entitlement -- Award of attorney's fees is reversed where trial court failed to calculate full judgment due as well as pre-judgment interest -- Where entitlement to attorney's fees was established as of January 12, 2011, trial court should have calculated pre-judgment interest on attorney's fees award at 6% through date judgment was actually entered, which was interest rate under version of section 55.03, Florida Statutes, in effect at that time -- Because actual judgment was entered on January 12, 2012, post-judgment interest should be calculated using rate established at that time, and adjusted yearly thereafter until paid in accordance with current version of section 55.03
JOAN GENSER and DAVID GENSER, Appellants, v. THE REEF CONDOMINIUM ASSOCIATION, INC., LEWIS KATZ, JANET HUCKABY, and LANG MANAGEMENT COMPANY, INC., Appellees. 4th District.

Civil procedure -- Dismissal -- Service of process -- Timeliness -- Statute of limitations precluding refiling -- Trial court did not abuse its discretion in dismissing action where more than a year had passed without service of complaint or other record activity, and trial court gave full and appropriate consideration to pertinent factors
ANTHONY POWELL, Appellant, v. MADISON COUNTY SHERIFF'S DEPARTMENT; DEPARTMENT OF INSURANCE, DIVISION OF RISK MANAGEMENT and DOWN HOME MEDICAL, Appellees. 1st District.

Dissolution of marriage -- Child custody -- Appeals -- Jurisdiction -- Trial court was without jurisdiction to vacate modification order while an appeal of that very order was pending
LOY CAMPBELL, Appellant, v. SADANA CAMPBELL, Appellee. 4th District.

Federal Tort Claims Act: STEPSON WINS $211,000 FOR VA'S NEGLIGENT BEDSORE CARE, Delehant v. United States, 15 No. 9 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home November 2, 2012

A federal judge in Oregon has ordered the federal government to pay $211,000 to the stepson of a deceased patient who developed severe bedsores during his stay at a VA hospital in Portland. U.S. Magistrate Judge John V. Acosta of the District of Oregon entered judgment for plaintiff Robert Delehant on personal injury claims but found for the government on wrongful-death allegations.

Transmissions: BWM PUSHING 'WEAK' SETTLEMENT TO BLOCK BETTER ONES ELSEWHERE, PLAINTIFFS SAY, Bonomo v. BMW, 32 No. 10 Westlaw Journal Automotive 7, Westlaw Journal Automotive November 6, 2012

Eight people who claim that 2005-2008 Mini Cooper convertibles have faulty transmissions say the automaker is pushing a Florida federal court to approve a "weak" settlement in order to preclude their similar class actions in California and New Jersey. The eight petitioners want to intervene in the Florida suit, filed in the U.S. District Court for the Southern District of Florida, and have it transferred to the U.S. District Court for the Central District of California.

Pacemaker: FLORIDA PACEMAKER DEATH CLAIM PREEMPTED BY FEDERAL LAW, McClelland v. Medtronic Inc., 19 No. 19 Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices November 5, 2012

Finding the causes of action barred by federal law, a Florida federal judge has dismissed negligence and failure-to-warn claims against Medtronic by the estate of a woman who died after her EnPulse pacemaker failed after five years of use. U.S. District Judge Charlene Honeywell of the U.S. District Court for the Middle District of Florida ruled that plaintiff Peggy McClelland's state-law- based claims are preempted by the Medical Device Amendments to the Federal Food Drug and Cosmetic Act

Regulatory Violations: 6TH CIRCUIT: NURSING HOME PROPERLY CITED FOR SEXUALLY AGGRESSIVE RESIDENT, Somerset Nursing & Rehab. Facility v. U.S. Dep't of Health & Human Servs., 15 No. 9 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home November 2, 2012

A federal appeals panel has ruled that state and federal agencies correctly found a Kentucky nursing home had put its female residents in "immediate jeopardy" by not controlling a sexually aggressive dementia patient. The 6th U.S. Circuit Court of Appeals ruled 2-1 to uphold the citations and immediate-jeopardy finding against Somerset Nursing & Rehabilitation Facility, but the panel reduced the number of days the facility should have been assessed a daily fine of $3,050.

Tires (Wrongful Death): DEATH CASE AGAINST COOPER GOES BACK TO LOUISIANA STATE COURT, Turpin v. Cooper Tire & Rubber Co., 32 No. 10 Westlaw Journal Automotive 6, Westlaw Journal Automotive November 6, 2012

A federal judge in Louisiana has remanded a wrongful-death tire defect case to state court, finding insufficient proof that the plaintiff improperly named an in-state car dealership as a defendant to avoid federal diversity jurisdiction. Under diversity jurisdiction, federal courts are authorized to hear cases when the opposing parties are citizens of different states, as long as the amount in controversy is at least $75,000.U.S. Magistrate Judge Patrick J. Hanna.

Quinn v. Louisiana Citizens Property Ins. Corp.,(La.)

Limitations - Suspension of prescription based on putative class action applies only when class action is filed in state's courts.

A Louisiana statute, providing for suspension of prescription for individual claims of a putative class member arising out of the transactions or occurrences described in a petition brought on behalf of a class, applies only to petitions brought on behalf of a class in the state courts of Louisiana and does not permit "cross-jurisdictional" tolling. Therefore, insureds who brought a state-court action against their homeowner's insurer to recover for alleged underpayment of compensation in connection with property damages from two hurricanes could not rely on a "recently dismissed" class action claim brought in federal district court to establish a suspension of prescription as to their individual claims.

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Attorney's fees, injunctions, repeat violence and Medicare fraud, with arugula and Manchego cheese galettes

Attorney's fees -- Award of fees reversed and remanded with instructions to set forth basis for award
JEFFREY WAINTROOB ROBERTS, Appellant, v. MIRIAM RAPHAEL ROBERTS, Appellee. 3rd District.

Injunctions -- Repeat violence -- Injunction reversed where requisite instances of violence or stalking were not established at hearing
CHRISTOPHER JOHNS, Appellant, v. DANIEL G. PENZOTTI, Appellee. 2nd District.

Medical Discount Plans: FLORIDA FEDERAL JUDGE HALTS MEDICAL DISCOUNT PLAN OPERATION, FTC v. AIB Mkg. Assocs., 20 No. 6 Westlaw Journal Health Law 6, Westlaw Journal Health Law October 24, 2012

A telemarketing operation must stop selling medical discounts plans and other health-related services pending resolution of charges it made "serious misrepresentations" in its marketing, a federal judge in Florida has ruled. The Federal Trade Commission alleges the telemarketers duped consumers into paying millions of dollars by telling them that the products were the equivalent of comprehensive health insurance.

Medicare Fraud: AUTHORITIES CHARGE 91 IN $430 MILLION MEDICARE FRAUD, 18 No. 4 Westlaw Journal Health Care Fraud 3, Westlaw Journal Health Care Fraud October 24, 2012

(Reuters) - Ninety-one people including doctors, nurses and other medical professionals were charged criminally in a new sweep of Medicare fraud involving seven U.S. cities and $430 million in alleged false billing, officials said Oct. 4. It was the government's second big raid in recent months after a similar effort in May alleged $452 million in fraud in Medicare, the U.S. health program for the elderly and disabled.

Medicaid Cuts: NEW YORK FEDERAL JUDGE ORDERS STATE OFFICIALS TO HALT HOME HEALTH CARE CUTS, Strouchler v. Shah, 18 No. 4 Westlaw Journal Health Care Fraud 8, Westlaw Journal Health Care Fraud October 24, 2012

A federal judge in Manhattan has issued a preliminary injunction blocking state officials from reducing or terminating around-the-clock home health services to elderly or disabled Medicaid recipients in New York City without ample cause. The plaintiffs in the class-action lawsuit will likely succeed on their claims that the state violated federal Medicaid law by cutting beneficiaries' access to "split shift" care for unfounded reasons

Medicare Advantage: MEDICARE ADVANTAGE ENROLLMENT PROJECTED TO GROW 11 PERCENT, 18 No. 4 Westlaw Journal Health Care Fraud 9, Westlaw Journal Health Care Fraud October 24, 2012

(Reuters) -- Enrollment in Medicare Advantage, the private insurance segment of the popular U.S. health care program for the elderly, is expected to grow 11 percent next year while premiums remain steady, government health officials said Sept. 19. The U.S. Centers for Medicare and Medicaid Services estimated that 14.5 million people will enroll in Medicare Advantage plans in 2013, based on insurance industry expectations. That is up from 13.1 million people this year.

Medical Discount Plans: FLORIDA FEDERAL JUDGE HALTS MEDICAL DISCOUNT PLAN OPERATION, FTC v. AIB Mkg. Assocs., 20 No. 6 Westlaw Journal Health Law 6, Westlaw Journal Health Law October 24, 2012

A telemarketing operation must stop selling medical discounts plans and other health-related services pending resolution of charges it made "serious misrepresentations" in its marketing, a federal judge in Florida has ruled. The Federal Trade Commission alleges the telemarketers duped consumers into paying millions of dollars by telling them that the products were the equivalent of comprehensive health insurance.

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Healthy law, citrus canker, and new rules for e-payments to save MDs billions, with grilled squash dipped in rosemary oil

Insurance -- Uninsured motorist -- Attorney's fees -- Contingent award -- Appeals -- Certiorari -- Order awarding contingent attorney's fees in action against insurer for uninsured motorist benefits, although a departure from essential requirements of current law, will not cause any irreparable damage to insurer -- Order is essentially preemptive determination of issues that may or may not arise in subsequent action for bad faith, and the relevance of the order in a subsequent lawsuit is a matter for resolution by judge in that proceeding
GEICO INDEMNITY COMPANY, Petitioner, v. POLLIE DeGRANDCHAMP, Respondent. 2nd District.

Automotive: LAND ROVER'S STRIKE MOTION 'BASELESS,' PLAINTIFFS SAY, In re Land Rover LR3 Tire Wear Prods. Liab. Litig., 19 No. 9 Westlaw Journal Class Action 15, Westlaw Journal Class Action October 22, 2012 Plaintiffs who say certain Land Rover vehicles have wheel alignment problems have told a California federal judge that the automaker's motion to dismiss their class-action claims misstates the law and has no merit. Jaguar Land Rover North America wants U.S. District Judge Andrew J. Guilford of the Central District of California to toss all claims involving a putative nationwide class. But the plaintiffs counter in their opposition brief that Land Rover's motion is "premature and baseless".

Property Compensation: MIAMI APPEALS COURT OKS CLASS IN CITRUS CANKER SUIT, Fla. Dep't of Agric. & Consumer Servs. v. Lopez-Brignoni, 19 No. 9 Westlaw Journal Class Action 16, Westlaw Journal Class Action October 22, 2012 More than 80,000 Miami-Dade county homeowners can seek compensation as a class from the state for nearly 248,000 healthy trees the Florida Department of Agriculture cut down to eradicate citrus canker disease, a state appeals court has held. In a 2-1 decision, the 3rd District Court of Appeal affirmed a Miami-Dade County trial judge's class certification in the decade-old litigation in which the plaintiffs seek replacement costs for the trees.

Health Care Reform: HHS: NEW RULES FOR ELECTRONIC PAYMENTS WILL SAVE DOCTORS BILLIONS, 18 No. 3 Westlaw Journal Health Care Fraud 5, Westlaw Journal Health Care Fraud September 26, 2012 New federal rules covering electronic claims payments will "cut red tape" and could save health care providers and insurers $9 billion over the next 10 years, the U.S. Department of Health and Human Services says. The interim final rules, which are required under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, will make it easier for doctors to receive payment electronically and reduce "inefficient manual administrative processes," according to an Aug. 7 statement from HHS.

Torts -- Settlement -- Medicaid lien -- Medicaid recipient has right to seek a judicial determination of what portion of a personal injury settlement is subject to a Medicaid lien and reimbursement to the state -- Section 409.910 creates a presumptively valid allocation of settlement proceeds subject to a Medicaid lien when the Agency for Health Care Administration does not participate in the settlement agreement, and U.S. Supreme Court ruling in Arkansas Department of Health & Human Services v. Ahlborn does not invalidate the allocation set forth in that statute -- However, a plaintiff should be afforded an opportunity to seek reduction of Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses -- Conflict certified
ALAN ROBERTS, Appellant, v. ALBERTSON'S INC., B.H.A., L.L.C., and SEBASTIAN RAPISARDA, Appellees. 4th District.

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