Product liability, class actions, equitable distribution, and lemon-garlic chicken sauteed in truffle oil with cumin seeds

Class actions -- Torts -- Negligence -- Certification of class -- Denial -- Trial court did not err in denying amended motion for class certification in action against road construction contractor brought by business owners who allegedly sustained lost profits in their respective businesses when contractor's employee allegedly damaged natural gas line, resulting in interruption of gas service to sizable region -- To establish numerosity and typicality for purposes of class action, plaintiffs needed to show that sufficient and clearly ascertainable number of proposed class members had suffered some compensable damage from alleged negligence -- Trial court did not err in determining that proposed class was overbroad and failed in this regard

LUCARELLI PIZZA & DELI and T.A.S. SUNSHINE ENTERPRISES LLC, Appellants, v. POSEN CONSTRUCTION, INC., Appellee. 2nd District.

Contracts -- Employment -- Non-compete and non-solicitation agreements -- Injunction -- Trial court properly entered temporary injunction to enforce non-compete and non-solicitation provisions of employment agreement with provider of home health care services -- Referral sources for home health care services are a legitimate business interest entitled to protection under section 542.335, Florida Statutes (2012) -- Conflict certified

INFINITY HOME CARE, L.L.C., and SYLVIE FORJET, Appellants, v. AMEDISYS HOLDING, LLC, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Concerns related to distance between former wife's residence and child's school not basis for modification where location of parties' respective residences was known at time of final judgment when trial court selected former husband's residence as child's legal address and address to be used for school designation purposes -- Because substantial competent evidence of substantial change in circumstances was not presented, trial court abused its discretion by granting former wife's modification petition

JEROD B. BLEVINS, Appellant, v. JENNIFER BLEVINS, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Non-marital assets -- Real property -- Trial court erred in awarding wife any interest in marital home which husband had acquired prior to the marriage -- Evidence contradicted trial court's finding that wife had invested $40,000 in the home, and although mortgage payments had been made with pooled resources, the value of the home had decreased during the marriage -- Trial court erred in unequally distributing Georgia properties without making requisite findings or explanations -- Remand for further proceedings to equitably distribute marital assets

WILLIAM E. WEAVER, Appellant, v. LORI LYNN WEAVER, Appellee. 4th District.

Insurance -- Homeowners -- Declaratory judgment -- Duty to defend and indemnify -- Exclusions -- Damages arising out of sexual molestation, corporal punishment or physical or mental abuse -- Intentional shooting -- Plain meaning of words “physical abuse” includes an instance such as one at issue in which insured lent gun to his sister who then used gun to shoot plaintiff, her son-in-law, outside of her home -- Trial court properly entered summary judgment in favor of insurer based on determination that insurer had no duty to indemnify or defend its insured in a separate personal injury action arising from the shooting

SALVATORE MIGLINO, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY and HARVEY IRA STEIN, Appellees. 4th District.

Insurance -- Personal injury protection -- Medical expenses -- Coverage -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Policy language providing that any amounts payable “shall be subject to any and all limitations authorized by section 627.736 . . . or any other provisions of the Florida Motor Vehicle No-Fault Law, including, but not limited to, all fee schedules” did not make it clear whether insurer was actually and in fact electing to limit its reimbursements to providers under Medicare fee schedules or was simply announcing that it was reserving its right to elect to do so -- Language is ambiguous and must be construed in favor of providers -- Conflict certified

ORTHOPEDIC SPECIALISTS, as Assignee of KELLI SERRIDGE, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. 4th District.

Paternity -- Timesharing -- Default -- Trial court erred in entering default judgment in favor of father on his counter-petition requesting to establish paternity and timesharing where record did not reflect that mother received service of counter-petition, motion for default, order granting default, or notice of final hearing

GRANADA FELIPE, Appellant, v. RANDOLHF RINCON, Appellee. 5th District.

Torts -- Fraud -- Civil theft -- Limitation of actions -- Reconsideration by successor judge of order of recused judge dismissing complaint on basis of statute of limitations and statute of repose -- Successor judge properly denied motion for reconsideration of predecessor judge's order dismissing complaint where plaintiff failed to indicate how grounds alleged for recusal impacted the recused judge's rulings and failed to demonstrate any prejudice he suffered from initial judge's entry of order of dismissal

STEVE OGNENOVIC, Appellant, v. DAVID J. GIANNONE, INC., DAVID J. GIANNONE, and RICHARD ANDERSON, Appellees. 4th District.

Torts -- Nursing homes -- Violation of resident's rights -- Arbitration -- Trial court erred in denying defendant nursing home's motion to compel arbitration pursuant to arbitration agreement signed by resident's sister as attorney-in-fact for resident under durable power of attorney on basis that power of attorney limited sister to act as attorney-in-fact for resident to claims involving only liquidated damages -- Language of power of attorney, which granted sister ability to sue for “liquidated or liquidated” damages on behalf of resident, was ambiguous -- Remand for trial court to conduct further proceedings to determine intent of sisters in creating power of attorney

SANTA ROSA INVESTORS, INC. d/b/a SANTA ROSA HEALTH AND REHABILITATION CENTER; SUMMIT CARE II, INC.; GUY FARMER, and JOE D. MITCHELL, Appellants, v. BETTY WILSON AND VIOLET JOYCE CARTER, AS POWER OF ATTORNEY FOR BETTY WILSON, Appellees. 1st District.

Wrongful death -- Medical malpractice -- Trial court did not err in entering summary judgment for defendant University of Miami on claim that University was vicariously liable for negligence of physicians where there had been no pleading that University was vicariously liable for negligence of those physicians -- On motion for summary judgment, trial court considers only issues raised in pleadings

LISA WILSON and KEISHA SALMON, etc., Appellants, vs. RICHARD STONE, M.D., et al., Appellees. 3rd District.

Wrongful death -- Product liability -- Tobacco

DIANA PAPPAS, as Personal Representative of the Estate of MINA PAPPAS, Deceased, Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY a foreign corporation, LIGGETT GROUP, LLC, a foreign corporation, f/k/a LIGGETT GROUP, INC., f/k/a LIGGETT & MYERS TOBACCO COMPANY and VECTOR GROUP LTD, INC., f/k/a BROOKE GROUP, LTD, a foreign corporation, Appellees/Cross-Appellants. 4th District


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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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