Health care developments, postconviction relief and espresso custard with chocolate ganache

Health care -- Patient Protection and Affordable Care Act is constitutional in part and unconstitutional in part -- Jurisdiction -- Anti-Injunction Act does not bar suit, which seeks, in part, to restrain the collection of shared responsibility payment from those who do not comply with the individual mandate, as Affordable Care Act describes this payment as a “penalty,” not a “tax” -- Although that label cannot control whether payment is a tax for purposes of Constitution, it does determine application of Anti-Injunction Act -- Individual mandate, which requires most individuals to maintain “minimum essential” health insurance coverage and provides for a “shared responsibility payment” by persons who are not exempt and who do not receive insurance through employer or government program, cannot be upheld as exercise of Congress's power under Commerce Clause, which authorizes Congress to regulate interstate commerce, not to order individuals to engage in it -- However, it is reasonable to construe individual mandate as increasing taxes on those who have certain amount of income, but choose to go without health insurance, and such legislation is within Congress's power to tax -- Medicaid expansion portion of Act, violates Constitution by threatening existing Medicaid funding -- Congress has no authority to order states to regulate according to its instructions -- Although Congress may offer grants and require states to comply with accompanying conditions if states elect to accept offer, Act requires that states either accept a basic change in nature of Medicaid or risk losing all Medicaid funding -- Remedy for this provision is to preclude federal government from imposing such a sanction, and that remedy does not require striking down other portions of Act
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., Petitioners v. KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. U.S. Supreme Court.

Insurance -- Homeowners -- Water damage -- Trial court erred in awarding insured amount in excess of one million dollars for water damage sustained following a water pipe rupture where policy endorsement limited coverage for water damage to $25,000
CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NO. 328-2037, Appellant, vs. PITU, INC., A FOREIGN CORPORATION, Appellee. 3rd District.

Torts -- Medical malpractice -- Failure to diagnose and treat cervical cord compression, a condition which eventually caused patient to suffer quadriplegia -- No abuse of discretion in refusing to strike defendant's responsive pleadings for failure to comply with presuit requirements -- Argument -- Causation -- No error in refusing to grant mistral because of several allegedly improper comments by defense counsel in closing argument -- Counsel for defendant, the neurologist who initially treated patient, did not make impermissible burden-shifting argument on issue of negligence of neurosurgeon with whom defendant consulted by arguing that plaintiffs failed to present testimony from any neurosurgeon that he would have done anything differently -- Instead, counsel appeared to argue that plaintiffs failed to present evidence of causation in light of consulting neurosurgeon's testimony that if defendant had ordered a cervical MRI earlier and the radiographic findings were identical to those seen in later films, neurosurgeon still would not have conducted cervical decompression surgery at that time because neurosurgeon's examination of patient did not find any upper extremity dysfunction -- Jury instructions -- Trial court properly denied instruction regarding liability of initial and subsequent tortfeasors -- Although record evidence arguably supported theory that defendant- neurologist and settling codefendant-neurosurgeon were joint tortfeasors whose negligence united in causing single injury to plaintiff, it did not support conclusion that the two were “initial and subsequent” tortfeasors -- Attorney's fees -- Claim that trial court erred in entering final fee judgment jointly and severally against both patient and wife, whose sole claim was for loss of consortium, was not preserved for appeal where there is no indication in record that plaintiffs raised issue before the trial court -- Final judgment in favor of defendant and final judgment on attorney's fees affirmed
RUBY SAUNDERS, individually and as Personal Representative of the Estate of Walter Saunders, Appellant, v. WILLIS DICKENS, M.D., Appellee. 4th District.

Wrongful death -- Medical malpractice -- Releases -- Action against medical providers for malpractice in treatment of child for condition caused by ingestion of prescription drugs which had allegedly been negligently formulated and dispensed by pharmacist and pharmacy -- Trial court erred in granting medical providers' motions for summary judgment based on wording of releases executed by pharmacist and pharmacy in connection with settlement of claims against them where releases, read as a whole, “expressly reserved” right to pursue causes of action against medical providers resulting from their negligence
MICHELLE VANALSTINE and MATTHEW VANALSTINE, as Co-Personal Representatives of the Estate of CHARLES VANALSTINE, Appellants, v. PALMS WEST HOSPITAL, L.P., ALBERTO MARANTE, M.D., SUDHIRA KULATUNGA, M.D., and FLORIDA PEDIATRIC CRITICAL CARE, P.A., Appellees. 4th District.

Criminal law -- Post conviction relief -- No merit to claim that trial court could not impose upward departure sentence on different grounds after habitual offender sentence was stricken -- Substitute judge who conducted resentencing complied with applicable procedural rule
VICTORIO HUIPIO, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Post conviction relief -- Trial court erred in denying defendant's petition for post conviction relief where defendant filed properly sworn petition within time afforded by appellate court when it reversed trial court's order denying petition and remanded for trial court to dismiss petition with leave to re-file legally sufficient motion
CURTIS DEWAYNE ANDERSON, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Post conviction relief -- Trial court erred in summarily denying defendant's claims where trial court denied all claims without leave to amend and without stating a basis for the denial -- Although trial court is not precluded from simply adopting and incorporating state's response when state has provided record documents conclusively refuting claims, the order in this case did not expressly adopt and incorporate state's response -- Appellate court cannot conclude that trial court implicitly adopted state's response where response specifically stated that one of defendant's claims should be dismissed as facially insufficient with leave to amend, yet court's order summarily denied all claims
JAMES ROBERTS, a/k/a JAMES LEWIS ROBERTS, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Post conviction relief -- Timeliness of motion -- Two-year window for filing rule 3.850 commenced on date judgment and sentence became final after appellate court remanded case for resentencing -- Remand for further proceedings
EDUARDO MOLINA BRACERO, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Sentencing -- Correction -- Defendant's thirty-year sentence for attempted second-degree murder is illegal where it exceeds both the statutory maximum sentence and lowest permissible sentence on defendant's scoresheet -- Although defendant agreed to the sentence in negotiated plea agreement, defendant cannot plead to an illegal sentence
ANTOINE SMITH, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

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Business and criminal law, health care reform, and chicken mole poblano and rosemary mashed potatoes

Attorney's fees -- Estates -- Appeals -- Law of the case -- Appellate court's denial of appellate attorney's fees in this case during original appeal on the merits precluded trial court from awarding attorney's fees at trial level based upon the same statutory provisions asserted as basis for fee award in appellate court
BARBARA L. LANGER, individually, and as Co-Personal Representative of the Estate of Edward B. Walton, deceased, and as Co-Trustee of the Edward B. Walton Second Restated and Amended Revocable Trust Agreement dated October 10th, 2007; and JUDITH ANN WOLFE, individually, and as Co-Personal Representative of the Estate of Edward V. Walton, deceased, and as Co-Trustee of the Edward B. Walton Second Restated and Amended Revocable Trust Agreement dated October 10th, 2007, Appellants, v. RICHARD FELS, as attorney in fact for and on behalf of IRENE FELSENFELD, Appellee. 4th District.

Civil rights -- Torts -- District court properly dismissed action against hospitals and state agency brought by Medicaid “medically needy” program beneficiaries alleging they were illegally billed for medical services provided by hospital defendants when defendants billed and received payment from agency which administers Florida's Medicaid program and billed plaintiffs for the same services and in excess of the amount to which defendants were entitled, in violation of “balance billing” provision of federal Medicaid Act and similar Florida statute -- Three-party test for determining whether Spending Clause legislation, such as Medicaid Act, creates private right of action under section 1983 -- Text and structure of federal statute at issue do not focus on individual's right to be free of improper balance billing, but instead speak to obligations of State and Medicaid service providers vis-a-vis third party liability
YOLANDA MARTES, MARIA RAMIREZ, PAULA NEHER, FELIX RAPALO, SHAWNEEQUA ELLIOTT, as Guardian for J.A., a minor, Plaintiffs-Appellants, v. CHIEF EXECUTIVE OFFICER OF SOUTH BROWARD HOSPITAL DISTRICT, SECRETARY, FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, SECRETARY, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, SOUTH BROWARD HOSPITAL DISTRICT, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Defendants-Appellees. 11th Circuit.

Criminal law -- Ineffective assistance of appellate counsel -- Petition granted as to ground claiming counsel was ineffective for failing to raise the issue of whether defendant's convictions for first degree grand theft and making a false insurance claim greater than $100,000 violate double jeopardy where both allegedly stemmed from the same action
STEVE B. CLARK, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Allegations that counsel failed to communicate plea offer of ten years' imprisonment, that defendant would have accepted the plea had he been informed, and that plea would have resulted in lesser sentence than twenty-year sentence that was ultimately imposed were sufficient to require evidentiary hearing -- Defendant was not required to detail when offer was made, who made it, and who he heard it from after trial, as those are type of questions to be determined at evidentiary hearing
ANGEL LOPEZ, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Dissolution of marriage -- Postnuptial agreement -- Trial court erred in deviating from the specific procedure for division of artwork contained in postnuptial agreement where language of provision providing for the division of the artwork was clear and unambiguous
ERIC A. SIMON, Appellant, v. JANIE NOBLE SIMON, Appellee. 4th District.

Insurance - Insurer did not act in bad faith by failing to tender policy limits to personal representative of decedent's estate.

An automobile insurer did not act in bad faith by failing to tender offer of $10,000 policy limits to estate of victim of automobile accident. The insurer concluded thatinsured was solely at-fault in the accident. Judgment was eventually entered against insured for $2.8 million. The insurer's adjuster attempted five times to obtain the name of the attorney for decedent's mother who brought the action in her capacity as personal representative and individually, but the adjuster was repeatedly put off. There was no evidence in the record which demonstrated that insurer placed its interests above the interests of insured. This decision may not yet be released for publication.

Goheagan v. American Vehicle Ins. Co. ,(Fla.App. 4 Dist.)

Health Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS, 17 No. 12 Westlaw Journal Health Care Fraud 9, WestlawJournal Health Care Fraud June 20, 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.

Legislation: HEALTH CARE COURT RULING COULD PARALYZE MEDICARE, 17 No. 12 Westlaw Journal Health Care Fraud 7, Westlaw Journal Health Care Fraud June 20, 2012

CHICAGO, June 5 (Reuters) - Opponents of President Obama's health care lawhave been predicting dire consequences for seniors on Medicare ever since the legislation was signed last year. The warnings are mostly political spin, but there could be real problems if the U.S. Supreme Court strikes down the Affordable Care Act. The ACA, a cornerstone of Obama's health care plan, would extend healthinsurance to an additional 23 million Americans by 2019.

Mortgage foreclosure -- Relief from judgment -- Standing may not be raised in motion for relief from final judgment where no affirmative defense of lack of standing was raised in original proceeding -- Moreover, complaint in this case was filed by original payee and mortgagee, who assigned its interest in note and mortgage and substituted the assignee as party plaintiff during suit -- With respect to claim that note was not properly indorsed, although original note was not indorsed, record shows that both mortgage and note were assigned to plaintiff by original payee by recorded assignment, and original note was filed in court -- Accordingly, assignee became non-holder in possession of the instrument, entitled to enforce it -- Although copy of note filed in proceedings appeared to have endorsement on it, even though original note filed in the proceedings had no endorsement, this does not affect determination of substantive issues in the case
JOHN W. MILLER and CHARLENE M. MILLER, Appellants, v. KONDAUR CAPITAL CORPORATION, Appellee. 4th District.

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Health and insurance interesting developments and baby back ribs with aged bourbon, chipotle peppers, mustard and cardamon sauce

Insurance -- Automobile liability -- Bad faith failure to settle -- Common law bad faith action against insurer by plaintiff who was assignee of insured and personal representative of estate of individual who died as result of injuries sustained in accident in which insured rear-ended decedent's vehicle -- Undisputed facts demonstrated no basis from which reasonable jury could conclude that insurer acted solely in its own interest, but instead showed that insurer acted properly and promptly in continually contacting plaintiff in order to discover name of attorney retained by her so that insurer could then contact the attorney -- Insurer was not required to tender check for its policy limits to plaintiff, despite fact that insurer knew plaintiff had retained an attorney -- Trial court properly granted summary judgment on behalf of insurer based on unrefuted evidence that insurer acted in good faith in attempting to settle case
OLIVE GOHEAGAN, as personal representative of the estate of MOLLY SWABY, individually and as assignee of JOHN PERKINS, Appellant, v. AMERICAN VEHICLE INSURANCE COMPANY, a Florida for profit corporation, Appellee. 4th District.

Insurance -- Homeowners -- Wind damage -- Examination under oath -- Under plain language of insurance contract between parties, which allowed insurer to require insured to submit to examination under oath “while not in the presence of any other ‘insured,' ” insured was not prohibited from having his public adjuster present during the insured's examination under oath
ZAFAR NAWAZ, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Notice of Claim: LATE NOTICE OF HIT-AND-RUN DOOMS UM COVERAGE FOR VICTIM'S FAMILY, DeFrain v. State Farm Mut. Auto. Ins. Co., 22 No. 36 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage June 15, 2012 State Farm owes no uninsured-motorist coverage to the family of a pedestrian who died months after a hit-and-run accident because the insurer was not notified within 30 days of the incident, a split Michigan Supreme Court has ruled. In a 4-3 decision, the court held there was no requirement that an insurer actually be prejudiced by its policyholder's failure to provide notice within the amount of time specified in a contractual notice provision.

Arbitration Agreements: JUDGE UPHOLDS ARBITRATION AGREEMENT DESPITE UNAVAILABLE FORUM, Meskill v. GGNSC Stillwater Greeley, 14 No. 25 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home June 15, 2012 The son of a deceased nursing home resident must arbitrate his negligence claims against the facility even though the forum specified in the arbitration contract is no longer available, a federal judge in Minneapolis has ruled. Judge Richard H. Kyle of the U.S. District Court for the District of Minnesota granted a motion to compel arbitration filed by the operator of Golden Living Center Greeley.The forum specified in the nursing home's contract, the National Arbitration Forum, no longer exists.

Interesting medmal Legislation: MICHIGAN SENATE MULLS BILL TO WAIVE DOCTORS' MED-MAL LIABILITY, 14 No. 25 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home June 15, 2012 A Michigan Senate committee is considering legislation that would excuse health care providers from medical malpractice liability if they can show they used "professional judgment" in caring for a patient. SB 1116 is part of a package of medical malpractice bills currently under review by the Senate Committee on Insurance that would prohibit claimants from recovering prejudgment interest and limit noneconomic damages awards. SB 1116 is known as the "physician judgment rule”.

Regulatory Initiative: CMS CALLS FOR REDUCTION IN NURSING HOMES' USE OF ANTIPSYCHOTIC DRUGS, 14 No. 25 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home June 15, 2012 The Centers for Medicare and Medicaid Services has announced a national initiative to reduce the use of antipsychotic drugs in nursing homes by 15 percent by the end of the year. The Partnership to Improve Dementia Care calls for increased transparency on facilities' use of antipsychotics, as well as enhanced training for nursing home employees on quality care and non-pharmacological alternatives to antipsychotic treatment. Acting CMS administrator Marilyn Tavenner announced May 30.

Mental Illness: 9TH CIRCUIT UPHOLDS LANDMARK MENTAL ILLNESS COVERAGE RULING, Harlick v. Blue Shield of Cal., 22 No. 36 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage June 15, 2012 A California insurance law requires Blue Shield to cover residential treatment for a policyholder who suffered from an eating disorder, a split federal appeals court has ruled, reaffirming its groundbreaking 2011 decision. A 2-1 panel of the 9th U.S. Circuit Court of Appeals denied Blue Shield of California's request for a rehearing en banc and reached the same conclusion as it did in its original ruling.

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Healthy dose of health law and garden tomatoes with holy basil, homemade mozzarella, and Kalamata olives

Federal Insurance - Health - Federal Regulation Tracking DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 156 Patient Protection and Affordable Care Act; Data Collection To Support Standards Related to Essential Health Benefits; Recognition of Entities for the Accreditation of Qualified Health Plans Proposed Rule COMMENT DATE: July 5, 2012 77 FR 33133-01

Federal Insurance - Property and Casualty - Federal Regulations DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 387 State Enforcement of Household Goods Consumer Protection Final Rule ENFORCEMENT DATE: The Agency amended its household goods regulations on November 29, 2010 (75 FR 72987). States are now authorized to enforce those regulations, retroactive to January 28, 2011, the effective date of the 2010 rule. COMPLIANCE DATE: The requirement for a $25,000 surety bond or trust fund  77 FR 32901-01

Defibrillator lead: FLORIDA MAN SUES MEDTRONIC OVER REPEATED SHOCKS FROM IMPLANTED DEFIBRILLATOR, Brown v. Medtronic, 19 No. 8 Westlaw Journal Medical Devices 7, Westlaw Journal Medical Devices June 4, 2012 Medtronic Inc. is being sued by a Florida man who says his Sprint Fidelis defibrillator lead cracked, exposing him to repeated, unnecessary shocks from his implanted cardiac rhythm management system. Albert Brown says Medtronic failed to exercise the necessary caution in its design and manufacture of the Sprint Fidelis Model No. 6949 electrical lead and neglected to warn patients and treating physicians about the "serious and hazardous health risks" associated with the device.

Health Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS, 14 No. 24 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home June 1, 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.   

 Involuntary Commitment: WISCONSIN HIGH COURT NIXES EMERGENCY COMMITMENT FOR ALZHEIMER'S PATIENT, In re Helen E.F., 14 No. 24 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home June 1, 2012 An elderly Alzheimer's patient should have been placed in protective custody pursuant to a state law for long-term care of the disabled instead of being involuntarily committed through a series of emergency detentions for the mentally ill, the Wisconsin Supreme Court has ruled. The state's highest court upheld the state Court of Appeals' 2011 ruling that Fond du Lac County officials improperly committed "Helen E.F." under Wis. Stat. 51, the state law governing involuntary commitment .

Legislation: SENATORS CALL FOR PATIENTS' CONSENT IN OFF-LABEL ANTIPSYCHOTIC DRUG USE, 14 No. 24 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home June 1, 2012 Three U.S. senators have introduced a legislative amendment that would require health care providers to obtain informed consent from elderly dementia patients before administering antipsychotic drugs to them for "off-label" uses. The proposed amendment to the Food and Drug Administration Safety and Innovation Act, S. 3187, would help to combat "costly, widespread and inappropriate" use of antipsychotics in nursing homes, Iowa Republican Chuck Grassley said in a May 22 statement.

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Constitutional law, habeas corpus, insurance coverage, health care reform, and fresh summer squash sauteed in rosemary-sage butter

Attorney's fees -- Prevailing party -- Award of fees is reversed where final judgment entered in favor of the prevailing parties was reversed
BLACK DIAMOND PROPERTIES, INC., BLACK DIAMOND REALTY, INC., AND STANLEY C. OLSEN, Appellants, v. CHARLES S. HAINES, KATHY HAINES, RICHARD O. CONBOY, JACKSON RANDOLPH, LARRY LAUKKA, ANGELO MASUT, BRENDA MASUT AND TOM HOWELL, Appellees. 5th District.

Bankruptcy -- Chapter 11 -- Confirmation of plan -- Debtors may not obtain confirmation of Chapter 11 cramdown plan that provides for sale of collateral free and clear of creditor's lien but does not permit creditor to “credit-bid” at the sale
RADLAX GATEWAY HOTEL, LLC, et al., Petitioners v. AMALGAMATED BANK. U.S. Supreme Court.

Dissolution of marriage -- It was error to require both parties to obtain life insurance to secure child support where such relief was not requested, and where court made no findings that special circumstances justified requirement and no findings regarding insurability, cost of insurance, or ability to afford insurance -- Court erred in finding that child could not be home schooled where child would not reach kindergarten age until twenty months after date of final judgment -- It is improper to determine best interest of child prospectively
STEVEN EDWARD EISELE, Appellant/Cross-Appellee, v. HEIDI MARIE EISELE, Appellee/Cross-Appellant. 2nd District.

Iranian Investments: CALIFORNIA MEASURE SEEKS TO BAN INSURERS' INVESTMENTS IN IRAN, 8 No. 2 Westlaw Journal Insurance Bad Faith 9, Westlaw Journal Insurance Bad Faith May 29, 2012 The California Insurance Commission has passed an initiative over opposition from insurance companies and associations, that seeks to restrict insurers from investing state residents' premiums in entities involved with building Iran's nuclear sector or developing the country's petroleum or natural gas. Although State Farm Insurance Co. and insurance industry trade organizations registered their opposition to Assembly Bill 2160, the measure passed after a committee hearing May 2.

Health Care Reform: NOTRE DAME, CATHOLIC GROUPS SUE TO BLOCK CONTRACEPTION MANDATE, Univ. of Notre Dame v. Sebelius, 22 No. 34 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage June 1, 2012 May 21 (Reuters) - The University of Notre Dame and dozens of other Catholic institutions have sued the Obama administration to block a government regulation that requires employers to provide health insurance coverage for contraceptives to employees. The regulation, which is part of the president's health care reform law, has sparked a nasty fight between the administration and the Roman Catholic Church, which opposes artificial contraception. Some 43 Catholic groups have sued.

Professional Services Exclusion: PROPERTY MANAGER GETS NO COVERAGE FOR FATAL APARTMENT FIRE, Golden Eagle Ins. Corp. v. Lemoore Real Estate & Prop. Mgmt., 22 No. 34 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage June 1, 2012 A property manager will get no coverage for a $29 million judgment in wrongful-death suits stemming from an apartment complex fire that killed five people, a California appeals court has ruled. The 5th District Court of Appeal held that the professional services exclusion in Lemoore Real Estate & Property Management Inc.'s business liability policy with Golden Eagle Insurance Corp. precluded coverage for the judgment.

  Duty to Defend: HOMEBUILDER HAD RIGHT TO CONTROL ITS DEFENSE IN DEFECT SUITS, Travelers Prop. Cas. Co. v. Centex Homes, 22 No. 34 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage June 1, 2012 Homebuilding giant Centex Homes claimed the right to control its legal defense when its insurer, Travelers Property Casualty Company of America, stalled in defending it in a pair of construction defect lawsuits, a California federal judge has ruled. "As the duty to defend arises immediately upon tender, Travelers' delay in providing Centex with a defense divested it the insurer of the right to control that defense," U.S. District Judge Samuel Conti of the Northern District of California said. 

Criminal law -- Sentencing -- Holding of United States Supreme Court in Graham v. Florida that the Eighth Amendment prohibits life sentences without the possibility of parole for juveniles convicted of nonhomicide crimes does not prohibit imposition of seventy-year sentence on fourteen-year-old juvenile defendant convicted of attempted first-degree murder -- Question certified
SHIMEEK GRIDINE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Trafficking in cocaine -- Habeas corpus -- Claim that section 893.13, as amended by section 893.101, is facially unconstitutional because it eliminates all mens rea from drug statute should have been raised on direct appeal or in post conviction proceedings, rather than in habeas petition -- Assuming trial court deemed habeas petition a rule 3.850 motion, trial court correctly determined it would be time-barred and declined to transfer it to sentencing court where relief was sought four years after judgment and sentence became final
MALCOLM D. DELANCY, JR., Appellant, v. KENNETH S. TUCKER, Secretary, Department of Corrections, Appellee. 1st District.

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