Wrongful death, arbitration, juror challenges, dissolution of marriage, and grilled salmon with fresh ginger and wasabi

Appeals -- Second-tier certiorari review of circuit court appellate division order reversing hearing officer's determination that respondent was in violation of County Code -- Circuit court applied correct law in determining whether hearing officer's findings were supported by competent substantial evidence and in finding that hearing officer had denied respondent due process -- Circuit court improperly remanded case with instructions to dismiss citation -- Available remedy to circuit court in granting writ of certiorari was limited to quashing hearing officer's order, and nothing more. MIAMI-DADE COUNTY, Petitioner, v. SNAPP INDUSTRIES, INC., Respondent. 3rd District.

Civil procedure -- Amendment of answer -- Trial court abused discretion in denying defendant's ore tenus motion, made at summary judgment hearing, to amend answer to assert affirmative defense -- Defendant had not abused privilege to amend, plaintiff would not be prejudiced by amendment, and amendment would not be futile. MISHPAJA SHAJINE, INC., et al., Appellants, v. GRANADA INSURANCE COMPANY, et al., Appellees. 3rd District.

Civil procedure -- Discovery -- Business records -- Examination -- Transport of documents -- Appeals -- Certiorari -- Trial court departed from essential requirements of the law by requiring party to transport original corporate documents from California to opposing counsel in Florida where opposing party did not identify any reason to do so. LE-1, a Florida Limited Liability Company d/b/a LE-1, a California Limited Partnership, Petitioner, v. WILLIAM B. TROWER, as Successor Personal Representative of the Estate of LINDA B. WEISHEIT, Respondent. 4th District.

Civil procedure -- Discovery -- Depositions -- Former opposing counsel in pending case -- Trial court properly quashed subpoena and issued protective order to prohibit defendant from taking deposition of plaintiff's former counsel where defendant failed to allege or establish that no other means existed to obtain information sought. CENTRAL CONCRETE SUPERMIX, INC., Petitioner, v. JOSE A. “PEPE” CANCIO, SR., Respondent. 3rd District.

Contracts -- Limitation of actions -- Action for breach of contract filed against estate of plaintiffs' deceased aunt and uncle alleging entitlement to “incentive money” which was initially supposed to be given to the plaintiffs for each year of college they completed pursuant to incentive program initiated by the deceased, but which was never distributed and which plaintiffs assumed was being kept under loan-back provision which stated that plaintiffs could loan the funds back to the deceased to accrue 10% interest, compounded monthly, that plaintiffs could then collect at their discretion -- No error in entering final summary judgment in favor of defendant estate -- For each installment of incentive money, the right to obtain it vested when each plaintiff completed a year of college, and thus the statute of limitations began to run when each installment was due -- Because plaintiffs did not bring action against estate until more than five years after they had each completed their last year of college, their actions were barred by the statute of limitations -- Court rejects argument that statute of limitations would begin to run only if plaintiffs' demands for payment were denied -- Lend-back provision of contract required plaintiffs to communicate their election of the provision to the deceased -- Because neither plaintiff communicated their election of the lend-back provision the provision was not invoked -- Even assuming lend-back provision had been triggered, contract ended one year after each plaintiff's respective graduation. JOHN P. WOODWARD, and ROBERT C. WOODWARD, Appellants, v. TIMOTHY J. MORELL, in his capacity as Personal Representative of THE ESTATE OF MILDRED W. OLSON, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Modification -- Change in circumstances -- Magistrate's report and recommendation -- Former husband's modification petition seeking change in parental responsibility and time-sharing based, in part, on incidents involving former wife and her boyfriend -- Evidence supported magistrate's finding that there had been a substantial change in circumstances based on former wife's behaviors, her relationship with her boyfriend, and removal of children from former wife's “temporary care” during a dependency case -- Evidence supported magistrate's conclusion that, while removal of children from former wife during dependency proceedings was temporary, a substantial change in circumstances had occurred based on former wife's volatile relationship with her boyfriend which continued beyond the conclusion of dependency proceedings -- Trial court erred as a matter of law in concluding that no substantial change in circumstances had occurred and in granting wife's exceptions to magistrate's report on that basis -- Remand with directions to enter order adopting report and recommendations of magistrate. P.D.V-G., Appellant, v. B.A.V-G., Appellee. 2nd District.

Dissolution of marriage -- Injunctions -- Freezing accounts -- Trial court abused its discretion by exceeding the scope of wife's requested relief for a freeze of marital accounts when it ordered husband's individual bank accounts to be placed in both parties' names -- Issue was not tried by consent. AJAY KUMAR DODDAPANENI, Appellant, v. CANDACE ELAINE DODDAPANENI, Appellee. 5th District.

Dissolution of marriage -- Magistrates -- Report and recommendations -- Exceptions -- Trial court abused its discretion by summarily denying former wife's exceptions to magistrate's report and recommendations based upon wife's failure to file transcript of hearing before the magistrate within 45 days allotted and ordered by court -- Hearing on exceptions is mandatory, and transcript is required only “if necessary for the court's review” -- Where exceptions raise pure issues of law, such as whether magistrate's report and recommendations improperly modified parties' property rights as previously determined by final judgment of dissolution, transcript would not be necessary -- Remand for trial court to hold hearing and consider exceptions on the merits. ROSEMITA JEAN, Appellant, v. JOSUE JEAN, Appellee. 2nd District.

Insurance -- Coverage -- Venue -- Forum selection clause -- Ambiguity -- Trial court erred in transferring action to Miami-Dade County where automobile insurer has its headquarters based on determination that policy's forum selection clause, which stated that any legal action against insurer to determine coverage under the policy “shall be filed and maintained in the county where the policy was issued,” mandated exclusive venue in that county -- Forum selection clause in policy is reasonably interpreted as not restricting venue to Miami-Dade County where policy failed to define “issued” and contained no terms expressly mandating venue exclusively in Miami-Dade County. THOMAS ROBLES, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. 1st District.

Insurance -- Homeowners -- Appraisal -- Trial court did not err in determining that policy's appraisal provision clearly and unambiguously applied to claim by insured's assignee for water mitigation services -- Policy provided that either party could demand appraisal to resolve “disagreement regarding the amount of the covered loss,” and it was undisputed that water mitigation services performed by assignee were part of the amount of the covered loss. EXPRESS DAMAGE RESTORATION, LLC, etc., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Insurance -- Homeowners -- Preferred Contractor Endorsement -- Where insurer elected to repair hurricane damage to insured home under Preferred Contractor Endorsement, and insured failed to provide a compliant sworn proof of loss and completed his own repairs to home, thereby preventing insurer from completing repairs under Preferred Contractor Endorsement, trial court erred in entering judgment requiring insurer to pay appraisal amount -- Insured breached policy by failing to fulfill post-loss obligations and hiring his own contractor to perform repairs. PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. ALEJANDRO AMARO, Appellee. 3rd District.

Mortgage foreclosure -- Relief from judgment -- Void judgment -- Foreclosure judgment in favor of junior mortgagee was properly found to be void as to senior mortgagee whose mortgage had been recorded before that of junior mortgagee -- Trial court erred in finding that motion to vacate judgment was not timely filed, as party may move to vacate void judgment at any time -- However, order denying motion to vacate judgment is affirmed, as section 702.036, Florida Statute, barred court from vacating judgment where vacation of judgment would adversely impact quality and character of title of property which had been purchased by third parties after foreclosure sale. WELLS FARGO BANK, N.A., Appellant, v. CHI PENG TAN, BANK OF AMERICA, N.A., as assignee of FIRST MAGNUS FINANCIAL CORPORATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Acting solely as Nominee for FIRST MAGNUS FINANCIAL CORPORATION, an Arizona Corporation, SCHINDLER ELEVATOR CORPORATION, SOUTHERN CONSTRUCTION SERVICES, INC., PRECISION U.S.A., INC., PARK TOWER ASSOCIATION, INC., NISSIM SHANI and MICHELE SHANI, Appellees. 4th District.

Torts -- Automobile accident -- Comparative negligence -- Summary judgment -- Appeals -- Mootness -- Action brought against plaintiffs' insurer to recover damages stemming from two separate rear-end collisions involving plaintiffs within a two-week period -- Argument that trial court erred by not granting plaintiffs' motion for summary judgment on issues of liability and plaintiff driver's comparative negligence in causing the accidents is moot where issues were tried before a jury, and evidence authorized jury's verdict -- Argument that evidence was insufficient to allow jury to apportion negligence to plaintiff driver for failing to mitigate his business losses and his pain was not preserved for appeal where plaintiffs failed to move for a directed verdict on issue at close of evidence at trial -- Even if trial court improperly allowed mitigation factors to enter comparative negligence equation, result appears to be harmless where jury's apportionment of negligence to plaintiff driver can be attributed to evidence that plaintiff driver helped cause rear-end collisions by driving forward then suddenly stopping his vehicle. ROY STRICKLAND and KATHRYN STRICKLAND, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee. 1st District.

Torts -- Automobile accident -- Rear end collision -- Successor judge who did not preside over trial erred in granting directed verdict in favor of defendant where there was competent substantial evidence to support jury's verdict that defendant was negligent and to support jury's rejection of defendant's defense that he unexpectedly lost consciousness or experienced syncope prior to collision. KAREN HERNANDEZ, etc., Appellants, v. SHULI ANDREW MISHALI, Appellee. 3rd District.

Torts -- Discovery -- Plaintiff failed to meet his burden to establish reversible error in trial court's order granting defendant's motion for protective order and denying plaintiff's motion to compel depositions where plaintiff has failed to provide transcript of hearing during which discovery motions were discussed -- Summary judgment -- Claim that trial court erred in denying plaintiff's motion to continue summary judgment hearing was not preserved for appellate review where plaintiff never obtained an order denying his motion to continue hearing. HENRY TIEN, Appellant, v. AKERMAN LLP (and the terminated AKERMAN, SENTERFITT & EIDSON, P.A.), Appellees. 3rd District.

Torts -- False arrest -- Municipal corporations -- Trial court properly entered summary judgment for defendant city on claim of false arrest where city police officers had probable cause to arrest plaintiff for obstruction without violence -- Where plaintiff had been called by police to pick up her son who was being detained for trespassing at a theater, after arriving at scene plaintiff continued to videotape and audiotape officers after being told to stop and obstructed officers' investigation and processing of her son's detention, there was probable cause for her arrest for obstruction without violence. SHARRON TASHA FORD, Appellant, v. CITY OF BOYNTON BEACH, a Florida municipal corporation, Appellee. 4th District.

Torts -- Jurors -- Challenge -- Trial court erred in denying plaintiff's motion to excuse prospective juror who specifically stated that his previous negative experience with a similar type of claim in an accident involving juror's son made it difficult for juror to remain impartial in his evaluation of facts and evidence in plaintiff's case -- Juror's later answer that he would keep an open mind because “every case is different” was not sufficient to rehabilitate juror -- New trial required where plaintiff was forced to use peremptory challenge against this prospective juror and trial court later denied plaintiff's request for additional peremptory challenge of juror over whom plaintiff expressed concern. ALEJANDRA RIVAS, Appellant, v. ALICIA SANDOVAL, Appellee. 3rd District.

Torts -- Negligence -- Excessive use of force -- Duty of care -- Amendment of complaint -- Appeals -- Action alleging that detention officers used excessive force during incident in which plaintiff was restrained and seriously injured after inmate medical services failed to conduct a mental evaluation -- Trial court erred in dismissing negligence counts against sheriff -- Plaintiff alleged an independent, common law duty of reasonable care by sheriff and the detention officers charged with his supervision -- Although plaintiff's negligence count did reference sheriff's use of force policy which does not create an independent duty of care, plaintiff's complaint stated a cause of action against sheriff for negligently failing to fulfill its independent duty of care because the detention officers allegedly used excessive force -- Sovereign immunity does not bar action against sheriff where allegations appear to be regarding sheriff's negligence in performance of established duties and failure to follow the policies already established -- These are operational level activities for which sheriff is not immune from suit -- No error in dismissing negligence claims against inmate medical services which alleged that inmate medical services had breached duties imposed upon it through its contract with the sheriff -- Contract clearly provides that it creates no right or cause of action to a third party -- Plaintiff waived any claim that he was entitled to amend his complaint for a third time because he failed to request leave to amend before or after court dismissed the complaint. CHARLES WILLIAMS, Appellant, v. GREGORY TONY, as Sheriff of Broward County Florida, ARMOR CORRECTIONAL HEALTH SERVICES, INC., and WANDA LOWES, R.N., Appellees. 4th District.

Torts -- Product liability -- Restaurants -- Service of contaminated food -- Action alleging that raw oysters served by defendant was legal cause of plaintiff's Guillain-Barré Syndrome -- Trial court erred in granting defendant's posttrial motion for entry of judgment in accordance with defendant's motion for directed verdict, which had been filed in a prior trial that had resulted in a deadlocked jury, based on determination that plaintiff's expert's testimony was based on impermissible inference stacking -- Defendant was required to move for directed verdict during second trial where parties did not stipulate that defendant's motion for directed verdict made during the prior trial would carry over to the second trial -- Additionally, motion for directed verdict made in prior trial could not apply to second trial where inferences identified by defendant in its motion in limine, which served as the premise for the motion for directed verdict, were stipulated facts in second trial -- While the legal theory might have been the same, the evidence upon which it would have been based was different -- Even if trial court could have considered posttrial motion for judgment in accordance with the motion for directed verdict, the trial court misapplied law with regard to directed verdicts -- Trial court's findings improperly evaluated testimony in favor of the moving party rather than the nonmoving party, and either disregarded conflicts in the evidence or resolved them in favor of defendant -- There was no stacking of inferences in this case -- Singular inference made by plaintiff's expert was the ultimate conclusion that GI infection, the stipulated cause of which was defendant's defective food, caused plaintiff's GBS -- Because plaintiff's expert did not simply provide a summary conclusion without a factual basis, jury was entitled to determine that the defective food was the legal cause of plaintiff's GBS. ANGEL MARTINEZ and MARIA ELENA MARTINEZ, Appellants, v. LOBSTER HAVEN, LLC, Appellee. 2nd District.

Wrongful death -- Nursing homes -- Arbitration -- Selection of arbitrator -- Appeals -- Certiorari -- Petition seeking review of order compelling plaintiff to select a nominating arbitrator to act along with defendant's chosen nominating arbitrator for the single purpose of selecting a sole arbitrator in plaintiff's action against defendant -- Trial court departed from essential requirement of the law in rewriting parties' agreement in defendant's favor by allowing defendant to choose a nominator despite having forfeited its right to do so by missing the express deadline set forth in its own residency agreement -- Trial court's conclusion that plaintiff's arbitrator selection was somehow impermissible because it was transmitted near the end of the business day on the day it was due is not supported by the agreement or any legal authority -- Relief granted by trial court was not appropriate under either section 682.031 or 682.04 where defendant presented no good cause to rewrite agreement, and parties' chosen method of appointing arbitrators did not fail -- Because plaintiff will be able to challenge eventual arbitration award on appeal, it cannot establish irreparable harm -- Petition denied. THE ESTATE OF GRACE QUINN, by and through BARBARA ECK, Personal Representative, Petitioner, v. CCRC OPCO FREEDOM SQUARE LLC; BKD TWENTY-ONE MANAGEMENT; BROOKDALE SENIOR LIVING, INC.; and SHELLY CRADDOCK, ADMINISTRATOR, (AS TO THE INN AT FREEDOM SQUARE), Respondents. 2nd District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, or  FEDERAL Recent Decisions of Interest.

Unpled liability, tort for undetected illness, trade secrets, and corn flan with grilled brussel sprouts and pistachios

Civil procedure -- Discovery -- Order requiring non-parties to disclose confidential and personal financial information and potentially privileged attorney-client communications departed from essential requirements of law and would cause material injury that cannot be remedied on appeal

MARK ROUSSO and THE ALHADEFF LAW GROUP, P.L., Petitioners, v. WILLIAM SCOTT HANNON, individually, and G & S REALTY ADVISORS CORP., a Florida corporation, Respondents. 3rd District.

Civil procedure -- Discovery -- Trade secrets -- Trial court departed from essential requirements of law in requiring non-party to produce documents containing trade secrets without findings to support conclusion that requesting party demonstrated a reasonable necessity for the documents that outweighed interest in maintaining confidentiality of trade secrets

LASER SPINE INSTITUTE, LLC, Petitioner, v. ROBERT WILLIAM GREER, JR., LESLIE DOUCETTE, CLARA DOUCETTE, and LESLIE DOUCETTE, JR., Respondents. 1st District.

Condominiums -- Dispute between association and unit owner regarding, among other issues, removal of certain improvements to allow access to rooftop for repairs -- Error to enter order requiring owner to “permanently” remove all improvements from parapet walls where permanent removal was not sought in association's pleadings

BARRY YAMPOL, Appellant, v. TURNBERRY ISLE SOUTH CONDOMINIUM ASSOCIATION, INC., etc., Appellee. 3rd District.

Torts -- Negligence -- Plaintiffs sued laboratory alleging its cytotechnologists negligently failed to identify abnormalities in plaintiff's pap smears and that this negligence caused a delay in plaintiff's cancer diagnosis -- Evidence -- Standard of care -- Expert witness testimony -- District court abused discretion in excluding testimony of plaintiff's expert witness concerning alleged breach of standard of care for cytotechnologists based on conclusion that her methodology was unreliable where witness was qualified to testify about cytotechnologists' standard of care, her methodology was reliable, and her testimony would assist the trier of fact -- District court manifestly erred in concluding that expert's methodology is an ipse dixit assessment that is devoid of any methodology that would allow another expert to challenge it in any objective sense and is not a peer-reviewable evaluation where expert formed her opinion by using reliable tools, applying an established body of medical knowledge, and drawing on her extensive, relevant experience in the fields of cytopathology and cytotechnology -- District court committed an error of law by concluding that expert's methodology did not satisfy the generally accepted standards in areas of pathology and cytotechnology, faulting expert for failing to conduct a blinded review, which is the standard set by the profession based on litigation guidelines created by interested industry groups -- District court's ruling runs afoul of Supreme Court decisions in Daubert and Kumho, which do not allow courts to delegate to interested industry groups the court's gatekeeping duties to screen out speculative, unreliable expert testimony -- District court supplanted jury's factfinding role when it determined that expert's methodology was unreliable because review bias is inherent in a non-blinded review, and expert admitted in her deposition that she had a philosophical bent toward a plaintiff who has developed cervical cancer -- District court's reasoning that expert's testimony was unreliable because her approach did not account for similar conditions and surrounding circumstances under which a cytotechnologist works was manifestly erroneous

CHRISTINA NICOLE ADAMS, CHRISTOPHER L. ADAMS, Plaintiffs-Appellants, v. LABORATORY CORPORATION OF AMERICA, Defendant-Appellee. 11th Circuit.

Unclaimed property -- Life insurance funds -- Statutory requirement that insurers remit to Department of Financial Services any life insurance funds that remain unclaimed for certain period of time after the funds become “due and payable” -- Department's declaratory statement interpreting statute to mean that life insurance funds become “due and payable” at time of insured's death is clearly erroneous -- Life insurance funds become due and payable at time insurer receives proof of death and surrender of policy, when insurer knows that insured has died, or when insured attained or would have attained limiting age -- There is no requirement that insurers search death records in order to ascertain whether an insured had died

THRIVENT FINANCIAL FOR LUTHERANS, Appellant, v. STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES, Appellee. 1st District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.

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.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with much more law, click here. 

Fraud, false claims act, arbitration, nursing homes, medical negligence and tossed oriental vegetables with garlic croutons

OBAMA ADMINISTRATION LAUNCHES 'COMMUNITY LIVING' INITIATIVES, 12 No. 1 Andrews Nursing Home Litig. Rep. 3, Andrews Nursing Home Litigation Reporter July 2, 2009
The Obama administration has proclaimed this the "year of community living" by launching initiatives to help disabled Americans find home- and community- based alternatives to institutionalization in nursing homes. The announcement came on the 10th anniversary of the U.S. Supreme Court's landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), which held that the unnecessary institutional segregation of disabled people constitutes discrimination under the Americans with Disabilities Act

UNSEALED SUIT TOSSED IN FALSE CLAIMS ACT CASE, United States v. LHC Group, 12 No. 1 Andrews Nursing Home Litig. Rep. 8, Andrews Nursing Home Litigation Reporter July 2, 2009 A federal judge in Tennessee has dismissed with prejudice a whistle-blower suit against a home health care business because the plaintiff's attorney failed to file the complaint under seal as required by the False Claims Act. U.S. District Judge Thomas A. Wiseman Jr. said his decision to toss the case was supported by the plain language of the FCA, 31 U.S.C. 3729, and by case law, including United States ex rel. Erickson v. American Institute of Biological Sciences, 716 F. Supp. 908, 910

UNAVAILABLE FORUM VOIDS ARBITRATION PACT, Grant v. Magnolia Manor-Greenwood, 12 No. 1 Andrews Nursing Home Litig. Rep. 6, Andrews Nursing Home Litigation Reporter July 2, 2009 An arbitration agreement between a nursing home and a resident is not enforceable because the organization designated to handle the proceedings no longer accepts such cases, the South Carolina Supreme Court has ruled. The high court unanimously ruled that the American Health Lawyers Association as the arbitration forum was an "integral part" of the agreement.The ruling means James O. Grant may continue to litigate his wrongful-death lawsuit

NURSING HOME MORTGAGOR CHEATED HUD ON LOANS; SUIT SEEKS $77 MILLION, United States v. Capmark Fin., 12 No. 1 Andrews Nursing Home Litig. Rep. 9, Andrews Nursing Home Litigation Reporter July 2, 2009 A mortgage banking company allegedly lied to the U.S. Department of Housing and Urban Development on loan insurance applications for two nursing home customers, causing the government to lose nearly $26 million when the homes defaulted. The government is seeking $77 million in treble damages from Capmark Finance Inc. under the False Claims Act, 31 U.S.C. 3729. The company was one of the nation's largest originators of HUD-insured loans, according to the complaint.

PARENTS WIN FIRST VERDICT AGAINST DUPONT IN PEDIATRIC HEART SURGERY CASES, Svindland v. Nemours Found., 5 No. 3 West's Medical Malpractice Law Report 1, West's Medical Malpractice Law Report July 2, 2009 A federal jury in Philadelphia has returned a $650,000 verdict for parents who say a cardiac surgeon at A.I. duPont Hospital for Children committed malpractice when he performed experimental surgery on their infant son, causing his death. The verdict was the first in favor of any plaintiffs in some 20 cases filed against the Delaware hospital and former chief cardiac surgeon William I. Norwood since 2004. Ten of the cases remain pending.

VERMONT TIGHTENS RULES ON GIFTS FROM DEVICE, DRUG COMPANIES, 5 No. 3 West's Medical Malpractice Law Report 3, West's Medical Malpractice Law Report July 2, 2009
Vermont Gov. Jim Douglas has signed into law a bill that will tighten state regulations involving gifts to health care providers by makers of "prescribed products" like drugs and medical devices. The state Legislature approved the measure, S. 48, with strong bipartisan support, by a 99-40 House vote and a 137-4 tally in the Senate. It took effect July 1. The new law removes loopholes in the state's current physician gift reporting system.

MOM ADDS ER NURSE, ILLINOIS HOSPITAL TO CIVIL RIGHTS SUIT, Lopez v. Village of Carpentersville, 5 No. 3 West's Medical Malpractice Law Report 4, West's Medical Malpractice Law Report July 2, 2009
An Illinois hospital and a registered nurse have been added as defendants in a federal lawsuit alleging paramedics refused to take a baby to the emergency room because he is Hispanic. The delay in care left the boy with permanent brain damage, plaintiff Gloria Lopez says. Lopez amended her complaint in the U.S. District Court for the Northern District of Illinois to name Sherman Hospital and ER nurse Jenny Lentz.

NURSES CAN GIVE EXPERT MEDICAL OPINIONS, PA. HIGH COURT SAYS, Freed v. Geisinger Med. Ctr., 5 No. 3 West's Medical Malpractice Law Report 5, West's Medical Malpractice Law Report July 2, 2009
Noting it is "loath to reverse our own prior decisions," the Pennsylvania Supreme Court has done just that after finding an earlier ruling that precluded nurses from offering medical opinions when testifying as experts conflicted with the state's "liberal standards" for expert testimony. The June 15 decision means that a paralyzed man can have his day in court in a lawsuit alleging inadequate nursing care led to his bedsores.

COURT UPHOLDS JUDGMENT ON 'REASONABLE' MEDICAL CHARGES, Strawn v. Farmers Ins. Co., 5 No. 3 West's Medical Malpractice Law Report 7, West's Medical Malpractice Law Report July 2, 2009
An Oregon appeals court has upheld a multimillion-dollar jury award in a class action over personal injury protection payouts, finding that the insurance companies' method of determining "reasonable" medical charges breached the policies. According to the opinion, Mark Strawn filed the underlying class-action lawsuit against Farmers Insurance Co. of Oregon, Mid-Century Insurance Co. and Truck Insurance Exchange.Strawn alleged the insurers used cost-containment software to determine "reasonable" medical charges.

Fees incurred in non-binding arbitration -- Party is not required to plead entitlement to attorney's fees incurred during court-ordered, nonbinding arbitration conducted pursuant to section 44.103 because it is only after case has been terminated that a party can determine whether fee-shifting provision of statute has become effective and, if so, file an appropriate motion seeking entitlement to fees -- Even if law had required defendants to plead claim for attorney's fees pursuant to section 44.103, plaintiff waived that argument by not objecting, either before or after entry of final judgment, although defendants sent plaintiff a proposed final judgment stating that trial court would reserve jurisdiction to consider defendants' motion to tax fees and costs pursuant to section 44.103, filed a motion for entitlement to attorney's fees based upon plaintiff's rejection of arbitrator's decision, and sent plaintiff a proposed order granting the motion
Reported at 34 Fla. L. Weekly D1344a

Hospital consent form indicating that surgeons were independent contractors did not, standing alone, conclusively refute apparent agency relationship between hospital and surgeons -- Further, trial court erred in failing to require hospital to properly lay predicate for business records exception to hearsay before admitting consent form into evidence -- Remand to provide hospital with opportunity to attach affidavit laying proper predicate for business records exception -- Parties may submit additional record evidence in support of or in opposition to summary judgment under apparent agency theory, and thereafter, trial court may reevaluate whether genuine issues of material fact exist on this issue
Reported at 34 Fla. L. Weekly D1349a

ACE, AIG FACE SUIT FOR REFUSING TO COVER FULL SETTLEMENT COSTS, Experian Info. Solutions v. Ill. Union Ins. Co., 19 No. 39 Andrews Ins. Coverage Litig. Rep. 6, Andrews Insurance Coverage Litigation Reporter July 2, 2009 A credit reporting agency has sued its insurers for refusing to cover costs and attorney fees incurred in connection with the settlement of two class- action lawsuits against it. Experian Information Solutions, which specializes in consumer and business credit reporting and marketing services, says ACE and American International Group are in breach of contract by refusing to pay for any settlement that includes an attorney fee award and related costs.

Subprime: AIG CAN'T MAKE CO-CONSPIRATORS HELP PAY FOR FRAUD, AIG Consol. Derivative Litig., 19 No. 39 Andrews Ins. Coverage Litig. Rep. 8, Andrews Insurance Coverage Litigation Reporter July 2, 2009
Troubled insurance titan AIG cannot sue brokers and reinsurers that allegedly helped it defraud investors of $5 billion with bid-rigging, phantom deals and fake reinsurance schemes, a Delaware state court judge has ruled. Vice Chancellor Leo Strine said the in pari delicto doctrine bars AIG and its former officers and directors from trying to force insurance broker Marsh & McLennan Cos. and other alleged co-conspirators to help pay for any future judgment or settlement that shareholder plaintiffs.

The Law Lady. For more information, click here, where you can request to be placed on our Recent Decisions of Interest mailings, or subscribe (see left column).