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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Arbitration, automobiles, coverage, mortgages al dente

Attorney's fees -- Contracts -- Prevailing defendant in collection action based on contract that provides for recovery of attorney's fees is entitled to award of fees -- Justiciable issues -- Motion seeking attorney's fees under section 57.105(1) on grounds that plaintiff could not recover because it is unlicensed contractor was not required to state that plaintiff has 21 days to withdraw complaint and avoid sanctions -- It was not necessary for defendant to re-file motion for attorney's fees after plaintiff amended complaint where amendment did not alter claim for breach of contract, which remained meritless -- Defendant is not entitled to award of section 57.105(1) attorney's fees where plaintiff and his attorney knew or should have known that plaintiff did not have general contractor's license, but evidence does not establish that they knew or should have known that general contractor's license was required
VIEW OPINION

Contracts -- Automobile sale -- Arbitration clause -- Validity -- Arbitration clause that waives buyer's right to seek punitive damages or pursue action under consumer protection statutes with fee-shifting provisions and prohibits class relief is substantively unconscionable -- Clause is also procedurally unconscionable where contract is in English but buyer barely speaks English, salesman did not furnish buyer with copy of contract, salesman rushed buyer into signing contract without disclosing that buyer was purchasing older vehicle with substantially more mileage than vehicle buyer had originally selected, and buyer was confronted with “take it or leave it” proposition to take substituted car or forfeit deposit -- Arbitration clause is unenforceable

Contracts -- Shipping -- Action by carrier against shipper for unpaid transportation charges paid by shipper to now-insolvent trucking broker which did not forward payment to carrier -- Where there was no credible evidence that carrier agreed to look solely to now-insolvent trucking broker to be paid, shipper is not relieved of liability to pay carrier

Attorney's fees -- Arbitration -- Trial de novo following court-ordered nonbinding arbitration -- Trial court correctly refused to hold individual who controlled corporate plaintiff liable for fees incurred in trial de novo, which was requested by the corporate plaintiff which had received favorable arbitration award but which did not prevail in trial de novo, where, by stipulation, the individual had been voluntarily dismissed from the lawsuit before trial, so that, under applicable statute, he was not a “party” subject to a fee award -- Moreover, language of stipulated dismissal stated that parties agreed to bear their own attorney's fees and costs incurred with respect to the claim and the parties that were being dismissed with prejudice and, accordingly, circuit court was without jurisdiction to reconsider attorney's fees claim after trial against the plaintiffs who were dismissed from the lawsuit
Reported at 35 Fla. L. Weekly D250a

Contracts -- Resort Affiliation Agreement between developer of interval ownership resort and company in the business of providing time share exchange services that provided for the inclusion of the resort in an interval network, a vacation exchange service to facilitate the exchange of accommodations between owners of time share or other vacation ownership interests at participating resorts -- Trial court properly entered summary judgment for defendant in developer's action seeking declaration that contract is not in force or that defendant breached implied covenant of good faith and fair dealing -- Mutuality of obligations -- Agreement is not rendered illusory because of fact that defendant reserved right to modify terms and conditions of interval network in its sole discretion where agreement delineated specific contractual duties owed by defendant to plaintiff which did not comprise the terms and conditions of the interval network itself -- Defendant's modification of the interval network would not relieve it of its obligations to plaintiff -- Even if there were a lack of mutuality of obligation at the inception of the contract, the lack of mutuality was cured by the parties' subsequent performance according to the terms of the agreement -- Where agreement provided that it would automatically renew for a second term at the end of the initial term unless a party provided written notice of its intent not to renew, and plaintiff failed to provide such notice, the agreement did not expire by its own terms -- Defendant is not equitably estopped from asserting that the agreement automatically renewed where there was no representation by defendant that reasonably indicated to plaintiff that it was relieved of its obligation to give defendant timely written notice of its intent not to renew -- Defendant did not breach implied covenant of good faith and fair dealing by revoking plaintiff's Five Star resort rating where there was nothing in agreement which obligated defendant to confer such rating -- Trial court did not abuse discretion in granting defendant leave to amend its answer to assert claim for attorney's fees
Reported at 35 Fla. L. Weekly D252a

Mortgages -- Capacity to sue -- Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue -- Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint -- Case dismissed without prejudice
VIEW OPINION

Mortgages -- Foreclosure -- Standing -- Motion for final judgment of foreclosure denied -- Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action -- Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage -- Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge
VIEW OPINION

Torts -- Arbitration -- Arbitrable issues -- Action by purchasers of home against contractors, alleging that personal injuries suffered by plaintiffs from mold exposure were caused by negligent design and construction of the home -- Trial court properly compelled arbitration where arbitration provision in purchase agreement mandated arbitration of claims of defects in the home and claims for personal injury
Reported at 35 Fla. L. Weekly D245a

Insurance -- Commercial general liability -- Coverage -- Insurance dispute arising out of state court slip-and-fall suit against underlying defendants that culminated in Coblentz agreement, which was subsequently reduced to consent judgment -- Duty to defend -- Insurer was relieved of its duty to defend, given the omission in underlying complaint of plaintiff's uncontroverted receipt of workers' compensation benefits and her employment status and the impairment of insurer's right to assess plaintiff's claims and exercise control over litigation before parties entered into Coblentz agreement -- Insurer is therefore entitled to judgment as matter of law that it has no obligation to reimburse plaintiff or insured for any defense costs or attorney's fees incurred in underlying litigation -- Duty to indemnify -- Even assuming, arguendo, that insurer had duty to defend, workers' compensation and employer's liability exclusions in CGL policy issued to underlying defendants preclude coverage for plaintiff's state law claims where plaintiff's injuries comprised “an obligation of the insured under a workers' compensation law” and “arose out of and in the course of her employment” by insured -- Insurer is entitled to judgment as matter of law that it has no duty to indemnify plaintiff or its insureds for plaintiff's injuries or for consent judgment entered in underlying tort action
Reported at 22 Fla. L. Weekly Fed. D137a


Contracts -- Motion for relief from default judgment entered in action by company providing sitework and fill material against contractor and owner of construction site -- Contract attached to complaint for foreclosure of mechanic's lien, breach of contract and quantum meruit is inadequate for failure to attach change orders that materially affect amount owed on contract, but not for failure to attach plan drawings -- Mechanic's lien -- Where exhibit attached to complaint contradicts statement in complaint that notice was provided within one year of date plaintiff first provided labor, services or material to defendant, exhibit controls and nullifies allegation that plaintiff complied with statutory prerequisites to impose and foreclose mechanic's lien -- Failure to state cause of action for foreclosure of mechanic's lien and breach of contract is fatal deficiency in complaint warranting setting aside judgment -- Where contract is not for fixed amount, and amount defendant owes plaintiff can only be determined by reference to evidence outside contract, plaintiff's damages were unliquidated when judgment was entered, and defendants were entitled to notice and opportunity to be heard on amount owed -- Judgment and all events that flowed from it are declared void ab initio
VIEW OPINION

Civil rights -- Sexual discrimination -- Employment -- Hostile work environment -- District court erred in granting summary judgment in favor of employer where, in addition to evidence of general, indiscriminate vulgarity, plaintiff presented ample evidence of gender-specific, derogatory comments made about women on account of their sex to permit reasonable jury to find that workplace exposed plaintiff to disadvantageous terms or conditions of employment to which members of the other sex were not exposed -- Remand for further proceedings
Reported at 22 Fla. L. Weekly Fed. C477a

Racketeering -- City's action against company which sells cigarettes online to residents of city, alleging business failed to comply with federal law requiring out-of-state vendors to submit customer information to states into which they ship cigarettes, which information was forwarded by state to city for use in tracking down cigarette purchasers who do not pay their taxes, and thereby committed mail and wire fraud which ultimately caused city to lose revenue in form of unrecovered cigarette taxes -- Because city cannot show that it lost tax revenue “by reason of” defendant's alleged RICO violation, city cannot state claim under RICO -- City was required to show that predicate offense “not only was a ‘but for' cause of his injury, but that it was the proximate cause as well,” and proximate cause for RICO purposes requires some direct relation between injury asserted and injurious conduct alleged -- City's causal theory cannot satisfy RICO's direct relationship requirement
Reported at 22 Fla. L. Weekly Fed. S113a

Torts -- Death resulting from traffic collision in Iraq with truck operated by defendant, which was incorporated under Kuwaiti law and had its principal place of business in Kuwait -- Civil procedure -- Default -- Vacation -- No error in vacating default judgment, which was entered against foreign defendant for failure to appear or otherwise answer after service, after district court conducted evidentiary hearing on personal jurisdiction and concluded that the defendant lacked minimum contacts with Georgia sufficient to support jurisdiction under Georgia's long-arm statute -- Defendant did not waive challenge to personal jurisdiction by ignoring service, retaining counsel in the United States, monitoring court proceedings, and then filing motion to vacate judgment after default judgment was rendered against it -- Defendant did not waive personal jurisdiction defense by entering into contracts with U.S. government that contained section of Federal Acquisition Regulation requiring contractors to maintain liability insurance to indemnify and hold harmless the government against third-party injury and property loss claims
Reported at 22 Fla. L. Weekly Fed. C473a

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