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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Criminal law, sentencing, arbitration and medical malpractice, with roast duck served on fresh blackberry and cranberry sauce

Criminal law -- Attempted murder -- Jury instructions -- Giving of standard jury instruction on attempted manslaughter is not fundamental error in prosecution for attempted first degree murder where defendant is convicted of lesser included offense of attempted second degree murder -- Conflict certified

JEAN L. CORIOLAN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Counsel -- Ineffectiveness -- Defendant convicted of sexual battery by digital penetration and oral penetration of a child under 12 after two counts for lewd or lascivious molestation against a second victim were severed subsequent to the jury being informed of the crimes, and second victim was permitted to testify as a Williams Rule witness -- Ineffectiveness was apparent on the face of the record, and no conceivable tactical strategy would justify conduct of counsel, where counsel failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes; abandoned his client's rights by agreeing to waive ten-day notice requirement for Williams Rule evidence; failed to object to trial court's refusal to permit counsel to introduce witnesses whose testimony may have persuaded trial court that evidence sought to be admitted under theWilliams Rule standard was unreliable; and failed to object when judge left a position of neutrality by making suggestions to the state on theories for admitting Williams Rule evidence and obtaining counsel's waiver of defendant's right to notice -- Ineffectiveness was so serious as to have affected outcome where there was no evidence other than testimony of the two victims, and proper objections may have prevented victim in severed counts from testifying as Williams Rule witness

ARCHIE HILLS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- First-degree grand theft -- Jury instructions -- Good faith defense -- Trial court erred in refusing to give requested special instructions on good faith, the lack of criminal implications for a disagreement regarding contract interpretation, and the definition of “petroleum contaminated water” (PCW) set forth in the Florida Administrative Code, where defendants, under contract to remove water contaminated with jet fuel from airport's fuel farm, were charged with stealing jet fuel contaminated or uncontaminated with water, but claimed they believed that, under two contracts which referred to PCW but which left the term inadequately distinguished from jet fuel, they were entitled to remove all the contents of a tank which contained both water and jet fuel in various mixture proportions -- Trial court's use of a standard instruction on the element of intent did not relieve it of the duty to give the good-faith instruction because the good-faith theory was adequately supported by evidence at trial, the standard instruction on the element of intent is insufficient to adequately cover the effect of a good-faith claim, and the requested special instructions constituted a correct statement of law and were not confusing or misleading -- No merit to state's argument that defendants were not entitled to an instruction giving the Administrative Code's definition of PCW because the definition itself is not a valid theory of defense -- Definitions are routinely included in jury instructions, and because the term defined is beyond the scope of common experience, the trial court had an affirmative responsibility to give the instruction -- Allowing defense counsel to argue the definition of PCW to the jury in closing was not an adequate substitute -- Trial court erred in failing to give special instruction on disputed contract interpretation because where, as here, the interpretation involves the possibility of criminal conviction, the rule of lenity requires that doubt be resolved in favor of the accused, and the failure to give the instruction left the jury free to resolve the contract's ambiguity against the defendants -- Evidence -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct a Richardson hearing upon being alerted by defense counsel to possible discovery violation where state witness's testimony departed dramatically from his pretrial deposition, it is clear the state was aware this would happen, and no disclosure was produced until the witness had already taken the stand -- Defense counsel was not obligated to make an objection based on Richardson or to request a Richardson hearing -- By defense counsel's merely bringing the state's non-compliance to the trial court's attention, the issue is preserved -- State's failure to disclose the changed testimony constituted a violation of its duty under rules of criminal procedure imposing a continuing duty to disclose -- Post-trial inquiry was not an adequate Richardsonhearing because it was untimely and because even if it had been timely, it improperly shifted the burden to the defense to demonstrate prejudice

CLIFF BERRY, INC., and JEFFREY CLINT SMITH, Appellants, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Appeals -- Mediation -- Failure to appear -- Sanctions imposed on parties who failed to appear at court ordered appellate mediation where no motion seeking to excuse personal appearance was filed -- Appearance of parties' insurance company representative cannot take parties' place

CARDEN & ASSOCIATES, INC. AND LENWOOD HOLLISTER, JR., Appellants, v. C.O.D. TREES PARTNERSHIP, Appellee. 5th District.

Arbitration -- Arbitrable issues -- Credit card agreement -- Class action by credit card holders alleging violations of Credit Repair Organizations Act largely based on defendants' allegedly misleading misrepresentation that credit card could be used to rebuild poor credit and defendants' assessment of multiple fees upon opening of the accounts, which greatly reduced advertised credit limit -- Because CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act requires arbitration agreement at issue to be enforced according to its terms

COMPUCREDIT CORPORATION, ET AL., Petitioners v. WANDA GREENWOOD ET AL. U.S. Supreme Court.

Attorney's fees -- Prevailing party -- Injunction -- Trial court erred in awarding prevailing party attorney's fees to homeowners association in action seeking injunction to require that homeowner obtain insurance on home in accordance with subdivision declaration where association had adequate remedy at law by obtaining insurance coverage on home and assessing the cost against the homeowner -- Because association had adequate remedy at law, trial court should have dismissed complaint for injunctive relief

ROBERT ALORDA and DANIELLE ALORDA-McKINNON, Appellants, v. SUTTON PLACE HOMEOWNERS ASSOCIATION, INC., Appellee. 2nd District.

Child support -- Child custody -- Intervention -- Where Department of Revenue initiated proceedings to establish paternity and require father to pay medical support and child support; father filed petition seeking custody of child and child support from child's mother; custody petition was transferred to a new lower court case number; mother and father ultimately entered into agreement providing that father would consent to termination of parental rights and mother would agree to withdraw action for support; and thereafter trial court entered order in custody case approving the agreement and terminating the father's parental rights, trial court did not err in denying motions to intervene in the two cases, filed by mother on behalf of minor child for purpose of challenging the agreement and order terminating parental rights on ground that agreement and order had deprived child of support and a father/child relationship -- Although parents' agreement for termination of parental rights and subsequent order adopting agreement are void and subject to challenge, trial court correctly ruled that intervention was not appropriate vehicle for mother or child to challenge agreement and resulting order -- Affirmance of order denying intervention is without prejudice to rights of mother or child to challenge agreement and order approving agreement in a motion for relief from judgment or in a newly-initiated proceeding

KELLEY LYNN REED, both individually and o/b/o ABBY LYNN REED, a minor child, Appellant, v. ROLLIN F. BLANSHINE and DEPARTMENT OF REVENUE, Appellees. 4th District.

Civil procedure -- Service of process -- Condominiums -- Registered agent -- No merit to argument that service of process on registered agent of corporation qualified to transact business in Florida must comply with hierarchical provisions of section 48.081(1)(a)-(d)

VERABELLA FALLS CONDOMINIUM, ASSOCIATION, INC. Appellant, vs. CARLOS SOSA, Appellee. 3rd District.

Contracts -- Condominium sale -- Preconstruction agreement -- Action arising out of buyer's refusal to close due to seller's failure to complete the condominium within two years of the contract as provided by the contract -- Trial court properly found breach of contract by buyer where, although court erred in determining that the unit could be permissibly conveyed on date permitted in the contract pursuant to 718.104(4)(e), purchase contract provided that the period for completing the unit could be extended beyond two years if certain delays occurred, and trial court's finding that certain delays did occur was supported by competent and substantial evidence

SOMMAI BREAZEALE, Appellant, v. GDC VIEW, LLC, a Florida Limited Liability Company, Appellee. 1st District.

Contracts -- Condominium sale -- Return of deposit to buyer -- Withholding portion of deposit -- Action by buyer seeking to void contract for developer's violation of section 718.202, Florida Statutes, by conditioning return of buyer's deposit upon its lender's consent to return the deposit -- Error to enter summary judgment for defendant developer where there was factual issue as to whether buyer had defaulted under the contract

FADIA DANERI, ET AL., Appellants, vs. BCRE BRICKELL, LLC, Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Imputed income -- Trial court erred, as a matter of law, in concluding that it could not impute income to wife because husband's vocational expert did not place wife in a job and there was no evidence that wife had turned down specific employment -- Instead, court should have considered wife's work history, occupational qualifications, and prevailing earnings in the community for class of available jobs -- Remand for reconsideration of issue of imputing income and, if necessary, recalculation of permanent alimony

SHARON BOOTH MIDDLETON, Appellant/Cross-Appellee, v. JAMES W. MIDDLETON, Appellee/Cross-Appellant. 5th District.

Conversion -- Interference with expected inheritance -- Action by decedent's daughters against their stepmother, alleging manipulative activity by defendant to contravene decedent's wishes with respect to the disposition of his estate -- Trial court properly dismissed action for plaintiffs' failure to present prima facie proof of damages -- Evidence did not establish the value of the assets in question during the relevant time period -- Evidence was insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by plaintiffs -- Discovery -- Any failure of counsel for defendant to engage in discovery in good faith was not the cause of plaintiffs' failure to present prima facie case -- Trial court did not err in denying request either to re-open case to allow more evidence on element of damages, or, alternatively, grant a new trial as a sanction against defendant and her counsel for abuse of discovery

MERCEDES R. SAEWITZ, ET AL., Appellants/Cross-Appellees, vs. LYNN SAEWITZ, ETC., Appellee/Cross-Appellant. 3rd District.

Dissolution of marriage -- Judges -- Disqualification -- After having granted motion to disqualify, judge was prohibited from directing former husband to submit his objections to former wife's motion to compel sale of former husband's residence to satisfy arrearages or a proposed order -- Trial judge is generally prohibited from taking any action in a case once disqualified, and exception in the case of ministerial acts is inapplicable

RICHARD S. ROSS, Petitioner, v. SHERI LYNN ROSS, Respondent. 4th District.

Dissolution of marriage -- Temporary alimony -- Temporary pre-dissolution attorney's fees -- Waiver -- Marital settlement agreement -- Agreement between parties that waives or limits right to request temporary support and attorney's fees to a spouse in need in a pending dissolution action is violation of public policy -- Error to strike notice of hearing on wife's motion for increase in temporary alimony and attorney's fees and costs based on provisions of a marital settlement agreement which parties entered into during prior dissolution proceeding which was ultimately dismissed after parties reconciled and which contained allegedly unmodifiable alimony provision and provision requiring each party to pay for their own legal fees

LISA KHAN, Appellant, v. ASLAM KHAN, Appellee. 4th District.

Dissolution of marriage -- Settlement agreement -- Enforcement -- Post-dissolution agreement in which it was agreed that mother's new husband would file for formal adoption of child, husband would pay half the original amount of child support, former husband would continue payments on life insurance policy, and former husband would have access to his son for life -- Circuit court, which was asked to determine validity and enforceability of agreement in light of adoption of child, erred in closing case on ground that family division did not have jurisdiction and that motions for enforcement and contempt should be heard in adoption court -- Even though child was subject of adoption, judge sitting in family division would have authority to rule on issues connected to the agreements reached in family court proceedings; and, in fact, court in this case reserved jurisdiction of parties and subject matter in final order incorporating the post-judgment agreement -- Further, no jurisdiction was reserved in final judgment of adoption and, accordingly, the issues regarding the post-judgment agreement could only be litigated in court retaining jurisdiction for that purpose

DONNA M. BAUDANZA, n/k/a DONNA M. DUNNE, Appellant, v. DENNIS BAUDANZA, Appellee. 4th District.

Judges -- Disqualification -- Prohibition -- Where judge has disqualified herself from case, prohibition is not appropriate for that case -- Blanket motion for recusal -- Attorneys are not entitled to writ of prohibition to disqualify judge in other pending cases in which attorneys are counsel of record

R.M.C., GRANDMOTHER, Petitioner, v. D. C., FATHER, Respondent. 1st District.

Jurors -- Post-trial interview -- Plaintiffs not entitled to interview jurors after trial to demonstrate that jurors' nondisclosure of information regarding their involvement with court system justified new trial where jurors' failure to disclose information, if any, was attributable to plaintiffs' lack of diligence in uncovering the information during voir dire

JANET RODGERS and DOUGLAS CARL RODGERS, as co-personal representatives of the estate of CARL SHANE DOUGLAS RODGERS, deceased, Appellants, v. AFTER SCHOOL PROGRAMS, INC., Appellee. 4th District.

Mortgage foreclosure -- Default -- Vacation -- Civil procedure -- Defendant who defaulted cannot thereafter contest allegations of complaint that plaintiff was the owner and holder of the note and mortgage -- With respect to remaining contentions that documents submitted in support of complaint and motion for summary judgment were faulty or inadmissible, rule 1.540(b) motion cannot be used as substitute for a motion for rehearing or an appeal

JO-ANN T. BEAULIEU, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee. 4th District.

 

Life Insurance: RESCISSION OF LIFE INSURANCE POLICY ISN'T BAD FAITH, Salkin v. United Servs. Auto. Ass'n, 7 No. 18 Westlaw Journal Insurance Bad Faith 9, Westlaw Journal Insurance Bad Faith January 10, 2012

A life insurance carrier did not act in bad faith when it rescinded a policy based on material misrepresentations that a policyholder made about his medical history during the application process, a California federal judge has ruled. U.S. District Judge Virginia A. Phillips of the Central District of California held that summary judgment in favor of the insurer is warranted where the policyholder's statements "discouraged" the carrier from seeking his medical records.

Medical malpractice -- Causation -- Evidence -- Expert -- Action alleging that defendant obstetrician was negligent in using fetal vacuum extractor during delivery of plaintiff, and that this negligence caused plaintiff to suffer ischemic stroke which caused brain injury, leaving plaintiff with cerebral palsy -- Trial court did not err in excluding testimony of plaintiff's standard of care expert which would link breach of standard of care to plaintiff's ischemic stroke, because such testimony would go to causation and would exceed the scope of matters on which expert was qualified -- Where defendant's expert had testified regarding his own publications and work in the field of epidemiology and a “huge national experiment” which showed no association between vacuum extraction and stroke, it was not error to allow defense counsel to ask expert, “Have you ever heard of the concept before this lawsuit that a vacuum assist can cause an ischemic stroke?” -- Question was not improper bolstering, but rather a fair follow-up to unchallenged testimony about the “huge national experiment” -- Court did not err in allowing another defense expert to use a National Institutes of Health study to explain why he concluded that the preeclampsia plaintiff's mother developed during pregnancy contributed to plaintiff's brain injury -- It is not improper bolstering to allow an expert to testify about the results of a government study such as the NIH study

DANIEL DUSS, A MINOR CHILD, BY AND THROUGH REGIONS BANK, THE GUARDIAN OF HIS PROPERTY, Appellant, v. MARTIN A. GARCIA, M.D., AN INDIVIDUAL; NORTH FLORIDA OBSTETRICAL & GYNECOLOGICAL ASSOCIATES, P. A., A FLORIDA FOR PROFIT PROFESSIONAL ASSOCIATION, Appellees. 1st District.

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Blue skies and cappucino with attitude while enjoying the latest in interesting law

Coton v. Televised Visual X-Ography, Inc. ,(M.D.Fla.)
Torts - Photographer was entitled to compensatory damages for company's unauthorized use of her image on cover of pornographic movie.
A photographer was entitled to compensatory damages of $100,000 for a video company's defamation by implication, under Florida law, via the unauthorized use of her self-portrait on the packaging of a pornographic movie. The photographer stated that the use of the photograph was humiliating and distressing, and caused her to become depressed. She also stated that she was shocked, disgusted, and ashamed when she saw the image being used in association with a pornographic movie, and that the use of the photograph caused her stress and problems with her family and friends. The photographer worried that being associated with a pornographic movie would harm her career. The photographer's humiliation and distress was compounded by the company president's offensive and belittling email responses to her requests to remove the photograph from the movie packaging. The photographer gave up photography for several months. She had trouble sleeping and eating.


Dissolution of marriage -- Alimony -- Error to fail to award retroactive alimony dating back to date dissolution petition was filed and to fail to award prejudgment interest on husband's alimony arrearage -- Trial court's finding that award of retroactive alimony would overlap with temporary alimony award failed to account for interim between date dissolution petition was filed and date temporary award was entered
BILLIE LUTZ GREMEL, Appellant, v. KIRK ALLAN GREMEL, Appellee. 2nd District.


Dissolution of marriage -- Equitable distribution -- Pension -- Where facts showed that husband, under partnership agreement with law firm, received credit for 100 months of service that occurred prior to marriage, trial court erred in ruling that 100% of the pension was marital in nature -- Commingling of withdrawals as they were received and use of those funds by the parties jointly did not change nature of entire asset from non-marital to marital -- Remand for further proceedings to determine value of marital portion of pension -- Error to include in final judgment conflicting provisions as to marital residence or farm expenses where parties had a clear agreement regarding these expenses which was made in and accepted in open court
EGERTON K. VAN DEN BERG, Appellant/Cross-Appellee, v. CAROLINE M. VAN DEN BERG, Appellee/Cross-Appellant. 5th District.


Dissolution of marriage -- Temporary alimony and child support -- Trial court erred by awarding wife temporary alimony and child support in an amount which exceeded husband's net income
ATEF AZIZ, Appellant, v. SHEREEN AZIZ, Appellee. 2nd District.


Child support -- Where Department of Revenue had filed action for child support on behalf of mother, and trial court determined, after evidentiary hearing, that no child support payments were necessary because child spent equal time with each parent, and mother neither appealed that order nor filed a petition for modification of chid support based on change of circumstances, trial court erred in entering order changing prior child support determination and directing father to pay child support -- Absence of transcript does not preclude appellate court from reviewing lower court judgment for error apparent on its face
RICHARD ALLEN HILL, Appellant, vs. VANESSA MARIA CALDERIN, Appellee. 3rd District.


Dissolution of marriage -- Arbitration -- Parties were not entitled to arbitrate post-judgment dispute regarding financial matters -- Arbitration provision in parties' assets agreement regarding financial issues was not enforceable
FAUSTINO MARTINEZ, Appellant, vs. FULYA KURT, Appellee. 3rd District.


Dissolution of marriage -- Child support -- Modification -- Error to enter summary judgment, as recommended by hearing officer, ordering husband to make monthly child support payments to former wife on ground that parenting plan in final judgment called for child to spend at least 40 percent of overnights of the year with wife where there were disputed issues of material fact as to whether grounds existed for deviating from presumptive support award under the guidelines -- Under parenting plan, time parties' child would spend with wife was speculative, depending entirely on wife's willingness and ability to satisfy significant advance conditions; and evidence was presented showing that wife had failed to meet the conditions and had actually exercised very few overnight visitations with child -- Moreover, marital settlement agreement required husband to shoulder almost total financial responsibility for child and wife agreed to provide child's health and dental insurance; and court must have considered this agreement to be an equitable deviation from child support award called for under the guidelines, whether calculated in usual manner or as adjusted for substantial timesharing, since it approved agreement and incorporated it in final dissolution judgment -- Finally, hearing officer's child support calculation was based solely on financial affidavits, notwithstanding husband's protestations that wife had failed to make complete financial disclosures and the fact that wife's financial claims were significantly impeached in sworn filings in opposition to motion for summary judgment -- Remand for further proceedings
LAWRENCE J. SMITH, IV, Appellant, v. SHARLENE DOROTHY SUE LING TOM SMITH, Appellee. 2nd District.


Dissolution of marriage -- Jurisdiction -- Residency requirement -- Error to deny husband's motion to dismiss wife's dissolution petition, in which he alleged that circuit court did not have subject matter jurisdiction because husband did not meet residency requirement, without making any findings regarding where husband resided before wife petitioned for divorce in Florida -- Wife, as party petitioning for dissolution, has burden of proving that the residency requirement is satisfied
CONRAD S. MIKULEC, Petitioner, v. PATRICIA HIGGINS MIKULEC, Respondent. 4th District.


Torts -- School boards -- Action against school board seeking damages for injuries suffered by student when she walked into traffic at school bus stop and was struck by vehicle -- Because school board did not have control over student at time of accident, trial court did not err in dismissing complaint with prejudice
JULIE WINSLOW, Appellant, v. SCHOOL BOARD OF ALACHUA COUNTY, Appellee. 1st District.


Gear Shift: LOUISIANA APPEALS COURT AFFIRMS $5 MILLION VERDICT IN CHILD-DEATH CASE, Guillot v. DaimlerChrysler Corp., 30 No. 8 Westlaw Journal Automotive 1, Westlaw Journal Automotive October 12, 2010
A Louisiana appeals court has affirmed a $5 million verdict to the family of a child taken off life support after being removed from his pregnant mother following an automobile accident that crushed her midsection. A 2-1 majority of the state's 4th District Court of Appeal said the damages were not excessive given the circumstances of the case and the emotional trauma the parents suffered.The record says August and Juli Guillot and their 3-year-old daughter, Madison, got into the family's 1999 automobile.


Gear Shift: GEORGIA GRANDMOTHER RUN OVER BY OWN CAR WINS $1 MILLION, Roper v. Chrysler Motors, 30 No. 8 Westlaw Journal Automotive 2, Westlaw Journal Automotive October 12, 2010
A state court jury in Fulton County, Ga., has awarded a 77-year-old woman $1.1 million after she was run over by her own 1994 Dodge Intrepid when the gear shift slipped out of the park position. Plaintiff's attorney Lance A. Cooper of Marietta, Ga., said in a press statement that several jurors had mothers who were about the same age as the plaintiff, Ramona Roper."They were very concerned about my client's future and wanted to make sure that she was taken care of," Cooper said.


Birth Injury: APPEALS COURT REJECTS 'SHOCKINGLY LOW' DAMAGES AWARD IN BIRTH INJURY CASE, Worden v. Injured Patients & Families Comp. Fund, 6 No. 10 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice October 8, 2010
Calling a jury award "shockingly low," a Wisconsin appeals court has ordered a new trial on noneconomic damages only in a malpractice action brought by a family whose child suffered a catastrophic brain injury at birth. The jury's $150,000 award for Autumn Worden's pain and suffering and $150,000 to her parents for the loss of their daughter's society and companionship and its failure to award anything for Autumn's future loss of earning capacity was "so unreasonably low as to shock our conscience."


Wrongful Death: PLASTIC SURGEON MUST PAY NEARLY $2 MILLION OVER YOUNG MOM'S DEATH, Lopez v. Galumbeck., 6 No. 10 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice October 8, 2010
A jury has awarded $1.95 million in the case of Virginia woman who died following cosmetic surgery, finding the plastic surgeon negligently sent her home less than an hour after completing the procedures even though she was having trouble breathing. Maritess Lopez, 36, died from aspiration pneumonia less than 40 hours after Dr. Matthew A. Galumbeck performed a "mommy makeover" July 30, 2008, according to the complaint filed in the Virginia Beach Circuit Court.


Wrongful Death: INADEQUATE EXPERT REPORT DOOMS ESTATE'S WRONGFUL-DEATH CLAIMS, Christus Spohn Health Sys. Corp. v. Lackey, 6 No. 10 Westlaw Journal Medical Malpractice 10, Westlaw Journal Medical Malpractice October 8, 2010
A Texas appeals panel has dismissed wrongful-death claims a deceased woman's estate brought against a nursing home and a hospital, finding deficiencies in the estate's expert reports. Reports filed by a registered nurse and a doctor about the care Margaret Baker Lackey received at the facilities failed to demonstrate a causal link between the facilities' alleged negligence and her death, the Court of Appeals held.Although it reversed a trial court's denial of summary judgment to Christus Spohn.


News in Brief: NEWS IN BRIEF, 17 No. 17 Westlaw Journal Medical Devices 10, Westlaw Journal Medical Devices October 11, 2010
Wright Medical pays $7.9 million in kickback settlement Wright Medical Technology will pay $7.9 million to settle federal allegations it engaged in marketing practices that resulted in the submission of fraudulent reimbursement claims to the federal Medicare program. In a deal announced Sept. 30 by the U.S. attorney's office in Newark, N.J., the medical device maker also agreed to 12 months of federal monitoring in the wake of criminal charges it violated anti-kickback laws by paying surgeons.


Johnson v. State ,(Fla.)
Criminal Justice - It was per se reversible error when trial judge preemptively instructed jury that it could not have testimony read back.
It is per se reversible error when a trial judge preemptively instructs a jury that it cannot have testimony read back and the erroneous instruction is properly preserved for appellate review. In so holding, the Supreme Court reasoned that a reviewing court cannot properly conduct a harmless error analysis because it is impossible to determine what effect the erroneous instruction had on the jury.


Criminal law -- Prisoners -- Presumptive parole release date -- Prisoner Indigency Statute -- An action challenging the Florida Parole Commission's determination of an inmate's presumptive parole release date is a collateral criminal proceeding for the purposes of section 57.085(10), Florida Statutes (2009), which exempts such proceedings from the fee and lien provisions of section 57.085 -- It was error to impose lien on inmate's trust account for costs associated with inmate's non-frivolous petition for writ of mandamus challenging Commission's determination of his presumptive parole release date
FLORIDA PAROLE COMMISSION, Petitioner, vs. JOSEPH ROBERT SPAZIANO, Respondent. Supreme Court of Florida.


Criminal law -- Lewd and lascivious molestation -- Jury instructions -- Trial court did not err in refusing to give jury instruction on simple battery as lesser included offense where information did not allege that touching of victim was against will of victim -- Evidence -- Hearsay -- No error in sustaining state's hearsay objection to questions which defense attempted to ask victim's mother regarding victim's alleged recantation where defense did not question victim about alleged recantation when she was on stand, and thus failed to lay proper foundation for impeachment -- Trial court did not abuse discretion in denying motion for mistrial on basis of allegedly improper closing argument regarding consistency of victim's testimony
RONALD BARNETT, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Opinion filed October 13, 2010.


Criminal law -- Manslaughter -- Self-defense -- Evidence -- Where defendant claimed that he shot victim in self-defense, trial court did not abuse discretion by prohibiting defendant from introducing evidence of victim's reputation in the community for carrying firearms unless defendant could first demonstrate that, prior to the shooting, he was aware of victim's reputation in the community for carrying firearms
LEONEL MUNOZ, Appellant, v. THE STATE OF FLORIDA, Appellee. 3rd District.


Criminal law -- Sentencing -- Federal guidelines -- Reasonableness of sentence -- District court committed no error, plain or otherwise, in imposing 10-year mandatory minimum sentences on three counts of indictment, notwithstanding any disparity created by 100:1 crack-to-powder cocaine ratio -- District court was not authorized to impose sentence below statutory mandatory minimum where government did not file substantial assistance motion under Section 3553(e) and defendant did not qualify for safety-valve exception of Section 3553(f)
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GREGORY ANTHONY GOMES, Defendant-Appellant. 11th Circuit.


Criminal law -- Possession of firearms and ammunition on school property -- No error in denying motion to dismiss charge on ground that firearms at issue were located in private conveyance and securely encased and not immediately available -- Subsection of statute permitting possession of a securely encased firearm for “lawful purpose” within interior of private conveyance did not apply in defendant's case where he was on probation at the time, and condition of probation required that defendant not possess any weapons
STEPHEN MICHAEL BELCHER, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.


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New flavors of the week

Rules of Civil Procedure -- Amendments -- General Rules of Pleading -- Verification of mortgage foreclosure complaints involving residential real property -- Forms -- Affidavit of diligent search and inquiry -- Final judgment of foreclosure -- Motion to cancel and reschedule foreclosure sale
Reported at 35 Fla. L. Weekly S97b

Civil procedure -- Relief from judgment -- Insurance -- Where plaintiff's complaint alleged that bouncers at defendant's bar and club assaulted and battered him, defendant's liability insurer denied coverage on basis that complaint alleged an intentional tort, and trial court confirmed arbitration award which found that defendant was negligent and entered final judgment on the award, it was error to grant plaintiff's motion to vacate final judgment which asserted that due to inadvertence or error, the arbitration award should not have been entered because the liability insurance company should be made a party to the claim -- Although rule 1.540 authorizes trial court to vacate final judgment on basis of negligent mistake or error, rule is not intended to provide relief for judgmental mistakes or tactical errors of counsel
Reported at 35 Fla. L. Weekly D342a

Contracts -- Home construction -- Retention of purchase deposit after buyer cancelled due to delay that was neither party's fault -- Consumer law -- Section 501.1375, which requires a building contractor or developer to hold certain deposits of a prospective buyer of a one- or two-family residential dwelling unit in an escrow account unless the buyer waives the escrow requirements in writing, does not apply to general contractor who contracts to build single-family residence upon land owned by the consumer at the time the contract was signed
Reported at 35 Fla. L. Weekly D331a

Contracts -- Real property sale -- Specific performance -- Where purchasers brought action for specific performance of initial contract for sale of property, and court found that initial contract was superceded by subsequent contract in a novation, it was error for court to sua sponte amend pleadings to substitute later contract for contract specified in pleadings and to grant specific performance on the later contract without providing defendant opportunity to respond to the complaint as amended
Reported at 35 Fla. L. Weekly D320a

Contracts -- Real property sale -- Rescission of contract -- Violation of Interstate Land Sales Full Disclosure Act by failing to deliver copy of property report to purchaser before she signed purchase contract -- Exemptions -- Developer of residential community was exempted from ILSA's disclosure requirements because language in purchase and sale contract extending construction completion period for delays caused by specified events or “any other similar causes not within Seller's control” did not render developer's obligation to complete construction of residence within two years illusory
Reported at 35 Fla. L. Weekly D337c

Criminal law -- Conspiracy to commit home invasion robbery -- Jury instructions -- Uncharged act -- Where defendant was charged with conspiring with a named individual to commit crime of home invasion robbery, it was error to instruct jury that it could find defendant guilty if he conspired with the named individual “and/or another black male” -- It is fundamental error to instruct the jury that defendant may be convicted for uncharged acts
Reported at 35 Fla. L. Weekly D339b

Criminal law -- First degree murder -- Kidnapping -- Burglary of dwelling -- Aggravated stalking -- Argument -- Claim that prosecutor impermissibly shifted to defendant the burden of proving essential element of crime by misstating that if jury believed beyond a reasonable doubt that the victim was not dead, they should acquit defendant was not preserved for review by contemporaneous objection, and misstatement did not constitute fundamental error -- Misstatement occurred only once and was not intentional, and jury was repeatedly told that state had burden of proving that victim was dead
Reported at 35 Fla. L. Weekly D355b

Criminal law -- Jurors -- Peremptory challenge -- Gender discrimination -- State's explanation that it had a bad feeling about juror was not a valid gender-neutral explanation for strike of last male on panel -- Trial court erred in upholding strike based upon fact that state had struck an equal number of male and female jurors -- It is improper for court to consider overall makeup of jurors that have been seated in determining sufficiency of gender-neutral reason for peremptory strike -- Issue was properly preserved for appeal -- When court reconsidered defendant's objection to strike, it was not necessary for defendant to renew his objection
Reported at 35 Fla. L. Weekly D321a

Criminal law -- Murder -- Jury -- Questions -- Trial judge abused his discretion by responding to jury's question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses' testimony, ignoring the request of both the state and defense -- Conflict certified -- Trial judge's apparent adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise the discretion granted to trial judges in this area -- Error was not harmless -- Evidence -- Confession -- State presented sufficient evidence to establish corpus delicti independently of defendant's confession
Reported at 35 Fla. L. Weekly D328a

Dissolution of marriage -- Child support -- Error to include in husband's income, for purpose of calculating child support, anticipated annual financial gifts which husband's mother had historically made to minor children for their education
Reported at 35 Fla. L. Weekly D327a

Criminal law -- Murder -- Death penalty -- Post conviction relief -- Ineffectiveness of counsel -- No error in denying claim that trial counsel was ineffective for failing to object to several allegedly improper prosecutorial statements made during closing argument -- Prosecutor's comments were insufficient to undermine confidence in outcome as required under Strickland prejudice standard -- No error in denying relief on claim that post conviction judge erred by not allowing defendant's expert to testify to prevailing norms of effective representation in capital cases relevant to defendant's proceeding -- No merit to claim that counsel was deficient in failing to timely discover and introduce testimony of witness that allegedly would have testified that defendant confided to him that defendant had been sexually abused as child, and that this testimony would have refuted claim that defendant recently fabricated his claims of abuse -- No error in denying claim of ineffectiveness in failing to convey negative impact on possible mitigation which resulted from plea agreement retraction and for failing to seek enforcement of plea offer -- By failing to demonstrate that additional witnesses would have testified and what those witnesses would have said, failing to explain how that testimony would improve on testimony that was given in case, and failing to explain how additional testimony would interact with other evidence and circumstances of case, defendant failed to establish that he suffered prejudice from counsel's alleged deficiencies -- Ring v. Arizona claim is procedurally barred as it was raised and rejected on direct appeal, and even if claim were not barred, it is rejected
Reported at 35 Fla. L. Weekly S106a

Criminal law -- Murder -- Death penalty -- Identification -- No error in denying motion to suppress photographic and live lineup identifications because law enforcement did not offer assistance of counsel -- Because photographic and live lineups occurred before any charges were filed against defendant, they were not critical stages of proceedings and did not trigger right to counsel -- Counsel -- Trial court made sufficient inquiry into defendant's complaint that counsel had been given names of alibi witnesses but had never spoken with these witnesses -- Defense counsel adequately explained her investigator's discussions with the alibi witnesses and her decision not to pursue their use as witnesses -- No error occurred in allowing defense counsel to respond to this issue in camera, out of earshot of defendant and state -- Sentencing -- No error in instructing jury on avoid arrest aggravator where state presented competent substantial evidence to support the aggravator, notwithstanding fact that trial court ultimately declined to find this aggravating circumstance -- Death penalty was proportionate -- Evidence was sufficient to support convictions
Reported at 35 Fla. L. Weekly S108a

Dissolution of marriage -- Trial court erred in denying wife's motion to enforce parties' consent final judgment -- Property settlement agreement that has been incorporated into final judgment of dissolution is non-modifiable, regardless of either party's financial position -- Where final judgment did not contain a reservation of jurisdiction, trial court lacked authority to change terms of contract parties had agreed to and the court had adopted -- Emails exchanged between parties' attorneys did not form a novation where there was no evidence that parties intended to form a new contract -- Where final judgment of dissolution provides for the transfer of assets, it is the responsibility of the spouse in possession of those assets to effectuate the transfer
Reported at 35 Fla. L. Weekly D340a

Insurance -- Subrogation -- Rental dwelling policy -- Subrogation action against tenant by insurer which had paid insured landlord for fire damage to leased premises, alleging that tenant's negligence caused the fire -- Error to enter summary judgment for defendant tenant on ground that tenant was an implied co-insured under landlord's insurance policy and that insurer cannot seek subrogation against its own insured or co-insured -- In order to determine whether landlord's insurer may bring a subrogation action against a negligent tenant, the lease as a whole is to be examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant's negligence -- Insurer should be allowed to proceed with its subrogation action against tenant because parties did not in unequivocal terms in the lease intend to limit tenant's liability for negligent acts
Reported at 35 Fla. L. Weekly D352a

Mortgage foreclosure -- Relief from judgment -- Trial court did not abuse discretion in denying motion to vacate default judgment and relief from final judgment of foreclosure -- Process server's affidavit of diligent search was facially sufficient to uphold service of process by publication -- There was sufficient competent evidence to conclude that diligent search was conducted to locate an address for defendant who resided at an undisclosed location in the Bahamas -- Foreclosure sale to bona fide purchaser cannot be set aside
Reported at 35 Fla. L. Weekly D348a

Torts -- Parochial high school was not liable for injuries suffered by student in automobile accident that occurred while student was driving automobile after consuming alcohol at an end-of-year party at a private residence -- Party at which student consumed alcohol was not a school sponsored or school related event -- Neither school principal's visit to private residence during party nor school's handbook regarding such parties created a duty on part of school pursuant to undertaker's doctrine -- Trial court erroneously struck defendant's affirmative alcohol or drug defense on the ground that the defense was not applicable because the student's parents, not the student, were the plaintiffs -- Trial court abused discretion in excluding records and testimony relating to student's treatment for alcohol abuse -- Judgment for plaintiffs reversed
Reported at 35 Fla. L. Weekly D344a

Torts -- Workers' compensation immunity -- Where defendant denied plaintiff's workers' compensation claim on the basis that plaintiff's condition was not the result of an injury by accident arising out of and in the course and scope of employment, defendant was estopped from raising workers' compensation exclusivity defense in plaintiff's negligence action -- Because defendant asserted irreconcilable positions as to whether plaintiff's injury occurred in the course and scope of his employment, trial court properly ruled that defendant was not entitled to workers' compensation exclusivity defense as a matter of law
Reported at 35 Fla. L. Weekly D342b

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Some interesting congressional developments in the health law and insurance areas

Some interesting developments in the health law and insurance areas:
H Res 1188 ( Griffith, D-AL), ensuring an up or down vote on certain health care legislation; to Rules. H1595, CR 3/17/10.

The Oversight and Investigations Subcommittee, House Energy and Commerce Committee, will hold a hearing titled “Pre-Existing Conditions in the Individual Health Insurance Market.” 3/23/10, 10 am, 2123 Rayburn.

HR 4803 (Barton, R-TX), to ensure health care consumer and provider access to certain health benefits plan information and to amend Title XIX of the Social Security Act to provide transparency in hospital price and quality information; to Energy and Commerce. H1322, CR 3/10/10.

HR 4808 (DeGette, D-CO), to amend the Public Health Service Act to provide for human stem cell research, including human embryonic stem cell research; to Energy and Commerce. H1323, CR 3/10/10.

HR 4813 (Berry, D-AR), to provide for insurance reform (including health insurance reform), to amend Title XVIII of the Social Security Act to reform Medicare Advantage and reduce disparities in the Medicare Program, and to regulate the importation of prescription drugs; to Energy and Commerce. H1323, CR 3/10/10.


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Civil law decisions with a healthy mix and classy class actions

Complete Angler, LLC v. City of Clearwater, Fla. ,(M.D.Fla.)
Real Property - Marine themed mural on outside wall of bait shop was protected non-commercial speech.
A marine themed mural on the outside wall of a bait shop and a banner placed over the mural reciting the First Amendment were protected non-commercial speech. Therefore, a city's ordinance defining paintings displayed in conjunction with a commercial enterprise as commercial speech rather than art work was an impermissible restriction on non-commercial speech as applied to the mural and banner. Although the mural could occasionally inspire the purchase of bait, it reflected a local artist's impression of the natural habitat and waterways surrounding the bait shop. It also alerted viewers to the threats posed to certain fish species it depicted.

Josendis v. Wall to Wall Residence Repairs, Inc. ,(S.D.Fla.)
Labor and Employment - Laborer employed by Florida company did not fall under FLSA's wage and hour protections under theory of enterprise coverage.
A laborer employed by a family-owned Florida residential remodeling company did not fall under the wage and hour protections of the Fair Labor Standards Act (FLSA) under a theory of enterprise coverage. The company asserted in its statement of undisputed facts on its motion for summary judgment that it never grossed $500,000 annually during the limitations period, and the employee's opposition statement of facts did not properly controvert that assertion. The laborer also failed to establish that his employer was "engaged in the operation of a hospital or an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution" through the assertion that a "Jewish Home and Hospital" itself would be covered by that language and that the maintenance and repair work he performed there during the relevant period was "closely or intimately related" to enterprise engaged in interstate commerce.

AXA Equitable Life Ins. Co. v. Infinity Financial Group, LLC ,(S.D.Fla.)
Insurance - Nonresident trustees and trusts holding life policies were subject to personal jurisdiction based on civil conspiracy claim.
Trustees, as residents of Delaware, holding life insurance policies in trusts organized in Delaware, purposely directed their activities at Florida residents, in an alleged civil conspiracy to fraudulently recruit elderly Florida applicants for policies that were paid for and held by outside investors in trusts to disguise true ownership of the policies. Thus, the Delaware trustees and trusts had sufficient contacts with Florida to have fair warning that they could be subject to the insurer's suit in Florida, as required to satisfy due process requirements for exercise of jurisdiction consistent with fair play and substantial justice.

Dissolution of marriage -- Equitable distribution -- Disproportionate distribution -- Factors relied upon by trial court did not weigh in favor of unequal distribution of property in favor of wife -- Desirability of retaining marital home as residence for parties' dependent children did not justify permanent transfer of marital home to former wife -- To extent trial court relied upon this factor to award marital residence to former wife, it should have granted her an exclusive interest only until parties' youngest child reached majority -- Fact that parties had used funds principally originating in former wife's trust account to purchase property in foreign state and marital home was found in prior appeal to be irrelevant to distribution of marital property in this case -- Unequal distribution cannot be based on spouse's disproportionate financial contributions to marriage unless there is showing of “extraordinary services over and above the normal marital duties,” and evidence does not demonstrate the former wife provided such extraordinary services on former husband's behalf -- Remand with instructions that marital assets be equally divided between the parties -- Alimony -- Error to impute income to husband from “sedentary employment” where trial court made finding following first trial that former husband's physical disability left him “unemployable,” appellate court concurred with this finding on appeal, no evidence was offered regarding amount or source of imputed income, and trial court made no findings concerning either factor -- Remand for reevaluation of alimony award without any consideration of imputed income
Reported at 34 Fla. L. Weekly D845b

Contracts -- Civil procedure -- Vacation of judgment -- Order vacating judgment for defendant in action for breach of contract to build and sell residence to plaintiff, and setting case for new trial, on ground that court committed judicial error by depriving plaintiff of opportunity to seek return of earnest money deposit -- Any error in trial court's failure to order return of earnest money deposit is not type of error cognizable under rule 1.540 -- Judicial errors must be corrected within ten days pursuant to rule 1.530 -- Even if trial court acted on its own initiative pursuant to rule 1.530(d), court was without jurisdiction to order new trial on its own motion because court did not initiate action within time limit set out in rule -- Order vacating final judgment reversed
Reported at 34 Fla. L. Weekly D795a

Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Administrative law judge erred in awarding attorney's fees under section 57.105, Florida Statutes, to party who did not comply with mandatory notice provisions of statute -- Counsel's letter to opposing counsel threatening to seek attorney's fees under section 57.105 was not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with court
Reported at 34 Fla. L. Weekly D826a

Contracts -- Stock purchase agreement -- Arbitration -- Action against guarantors of promissory notes given in connection with stock purchase agreement was not subject to arbitration provision in stock purchase agreement -- Arbitration provision in agreement applies only to indemnification claims, and suit to enforce unconditional guarantee was not a claim for indemnity -- Arbitration clause applies to claims for indemnification caused by purchaser's failure to fulfill an obligation of an agreement related to stock purchase agreement, but plaintiffs are not seeking indemnification from purchaser, but instead are seeking payment on unconditional guarantees executed by defendants
Reported at 34 Fla. L. Weekly D814c

Prohibition -- Judges -- Disqualification -- Real property -- Action challenging amendments to development's declaration of covenants and restrictions which imposed mandatory country club membership on all new owners taking title to certain property in defendant's subdivisions -- Where defendant discovered that judge was involved in similar dispute with his own homeowners association and had expressed critical opinions on the matter, a circumstance which aligned judge with plaintiff's position on the primary issue to be determined in suit, defendant had well-founded fear of bias, and disqualification was required
Reported at 34 Fla. L. Weekly D807b

Hoving v. Lawyers Title Ins. Co.,(E.D.Mich.)
Class Actions - Named plaintiff was not appropriate class representative in action against title insurer to recover overcharges on mortgage rates.
A federal district court in Michigan has denied certification of a refinancing homeowner's putative class action against a title insurer which allegedly overcharged on premiums on policies issued to mortgage lenders. The named plaintiff had not established that he could fairly and adequately protect the interests of the class. His effort at setting up a do-it-yourself trust established some doubt about whether he had the authority to grant the refinancing mortgage on the property and close the loan at the time. Furthermore, his testimony that in attempting to set up the trust he filled out the papers himself, was unfamiliar with the process, sought no legal advice despite the fact his sister was an attorney who served in the Judge Advocate General Corps, conveyed his property to complete strangers with whom he had never spoken and whom he had never met, paid a fee but kept no copies of documents or a record of payment, and was defrauded cast grave doubt over his ability to perform the functions of a lead plaintiff in major class action litigation.

Rodriguez v. West Publishing Corp.,(C.A.9 (Cal.))
Class Actions - Incentive agreements signed by some class representatives did not require rejection of antitrust settlement.
Although incentive agreements between the named plaintiffs and class counsel created conflicts among the named plaintiffs, their counsel, and the rest of the class in an antitrust action against two bar review course providers, a district court was not required to reject a $49 million settlement of the action on that account, since there were two other class representatives who had no incentive agreements and whose separate counsel were not conflicted. The agreements required class counsel to apply to a court for an incentive award for the named plaintiffs, and tied the named plaintiffs' compensation to a sliding scale based on the amount recovered.

State, Dept. of Transp. v. Douglas Asphalt Co.,(Ga.App.)
Appeals - Dismissal of defendant's cross-appeal was required following dismissal of plaintiff's direct appeal.
The Court of Appeals of Georgia has held that a defendant's cross-appeal from the trial court's partial grant of a plaintiff's motions in limine to exclude certain evidence and partial denial of the defendant's initial motion for summary judgment had to be dismissed, upon the dismissal of the plaintiff's direct appeal from the court's partial grant of defendant's second motion for summary judgment. This was the case because the grant of the plaintiff's motions in limine and the trial court's partial denial of the defendant's motion for summary judgment were not final appealable judgments, but were subject to the certification requirement and application procedures for interlocutory appeal. Since the plaintiff's appeal had been dismissed, and the defendant filed no application for interlocutory review of the grant of the plaintiff's motions in limine or the court's partial denial of the defendant's motion for summary judgment, the Court of Appeals had no independent jurisdiction over the cross-appeal. In so holding, the Court overruled a prior decision.

U.S. v. Nicholas,(C.D.Cal.)
Privileges - Attorney-client privilege applied to client's interview with his attorneys.
The attorney-client privilege applied to a client's interview with his attorneys regarding his employer's stock option granting practices. The substance of interview was disclosed by his attorneys to the employer's outside auditors, to the Securities and Exchange Commission (SEC), to the United States Attorney's Office, and was summarized in a FBI form memoranda. The client reasonably believed an attorney-client relationship existed with his attorneys in both the direct and derivative actions brought against him and his employer. He also reasonably believed that he was communicating with his attorneys in the context of the attorney-client relationship for the purpose of obtaining legal advice. Finally, he reasonably believed that any information he provided to his attorneys would remain confidential.

Payne v. Wyeth Pharmaceuticals, Inc.,(E.D.Va.)
Estoppel - Discharged debtor was judicially estopped from seeking damages exceeding $1 million in personal injury action.
A discharged Chapter 7 debtor, who sought $25 million in damages in personal injury action, was judicially estopped from seeking damages exceeding $1 million from defendant where the debtor declared the value of his claim as $1 million in the bankruptcy court and never amended his schedules to reflect his belief that his claim was worth more. The debtor advanced a position in which was inconsistent with the position he took in bankruptcy court, the value of debtor's claim was a question of fact, bankruptcy court relied upon debtor's representations made on the bankruptcy schedules, including his representation of his $1 million valuation, before agreeing to discharge his debt, and the debtor had a motive for concealment when valuing his claim and/or failing to amend after he had filed the lawsuit since the secured creditors would have been able to collect on any award or settlement recovered by the debtor.

Fort Brown Villas III Condominium Ass'n, Inc. v. Gillenwater,(Tex.)
Judgment - Striking of affidavit of plaintiff's expert witness submitted in response to defendants' summary judgment motion was justified.
The Supreme Court of Texas has held that the rule providing for the exclusion of evidence due to an untimely response to a discovery request applies in a no-evidence summary judgment proceeding. In so holding, the Court abrogated Court of Appeals' decisions holding to the contrary. In the case at bar, the Court concluded that the trial court's striking of an affidavit of the plaintiff's expert witness submitted in response to the defendants' no-evidence summary judgment motion was justified, because the plaintiff failed to timely disclose his expert pursuant to the deadline provided in the agreed scheduling order and the subsequent extension agreements. Also, the plaintiff failed to satisfy his burden of establishing good cause or lack of unfair surprise or prejudice against the defendants.

This decision may not yet be released for publication.

Budisukma Permai SDN BHD v. N.M.K. Products & Agencies Lanka (Private) Ltd.,(S.D.N.Y.)
Attachment and Garnishment - Plaintiff need only make prima facie showing of alter ego liability to avoid vacatur of maritime attachment.
A plaintiff need only make a prima facie showing of alter ego liability to avoid the vacatur of a maritime attachment, a New York district court has ruled, noting a split of authority on the issue within its district and following the majority view. A vessel owner satisfied this prima facie burden in pleading that related entities were the alter egos of a charterer in support of a maritime attachment against the related entities. The owner alleged that a website identified the charterer and the related entities as a "group of companies," and that the related entities sold the same products. The owner also alleged that the charterer and the related entities had common office addresses and telephone numbers and a common, three-person core of directors and shareholders, that the related entities were closely owned and directed by what appeared to be the same group of people, and that the related entities were the successors in interest of the charterer.

Wickline v. Dutch Run-Mays Draft, LLC,(S.D.W.Va.)
Removal - Court could not consider evidence of $100,000 settlement offer made after removal in determining motion to remand.
The District Court could not consider evidence of a $100,000 offer of settlement made by the defendant after the case was removed on the basis of diversity jurisdiction, or expert testimony that the amount-in-controversy for diversity jurisdiction was satisfied, in determining the plaintiff's motion to remand, based on a failure to establish the jurisdictional amount-in- controversy for diversity jurisdiction. The Court noted that neither the settlement offer nor the expert testimony was on the record at the time the notice of removal was filed.

Shumaker, Loop & Kendrick, LLP v. Zaremba,(N.D.Ohio)
Privileges - Burden-shifting approach was to be used for purposes of determining validity of written waiver of attorney-client privilege.
As a matter of first impression, the district court held that a burden- shifting approach should be used for purposes of determining the validity of a written waiver of the attorney client privilege. The proponent of the privilege had the burden of demonstrating, by a preponderance of the evidence, that the elements of the privilege were established. The opponent of the privilege was required to present sufficient evidence upon which a reasonable person could find that the privilege had been waived, and, if the opponent met its burden, the proponent of the privilege was required to disprove each demonstrated claim of waiver by a preponderance of the evidence.

Vargas v. Shepherd,(Ind.App.)
Privileges - Former patient waived the physician-patient privilege as to surgeon's treatment of former patient's prior back injury.
A former patient waived the physician-patient privilege as to a surgeon's treatment of the former patient's prior back injury. The former patient reinjured his back while working at an apartment complex and filed a lawsuit against the apartment complex to recover damages. By filing the lawsuit, the former patient placed at issue the condition of his back and any injury or treatment relating to it.

Ford Motor Co. v. Castillo,(Tex.)
Discovery - Manufacturer was entitled to discovery in breach of settlement action to determine juror misconduct in underlying tort action.
A plaintiff motorist in a products liability action, by seeking enforcement of a settlement agreement, necessarily asserted a separate claim for breach of contract against the defendant automobile manufacturer. Therefore, the manufacturer was entitled to conduct discovery to determine whether a juror's pre-settlement note to the trial court concerning the maximum allowable award in the products liability action, which note prompted the settlement, was attributable to any outside jury influence. The juror's note, which was submitted following a recess, raised a legitimate question about the integrity of the trial process.

This decision may not yet be released for publication.

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