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This Week's Feature
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TWO BITES OF THE SAME APPLE or WHEN IS A FINAL JUDGMENT NOT A FINAL JUDGMENT
By John T. Harding, Morrison Mahoney LLP
In its very recent decision in Andrew Robinson International, Inc. v. Hartford Fire Insurance Company, No. 08-1255, 2008 U.S. App. LEXIS 23083 (Nov. 10, 2008), the First Circuit Court of Appeals proved the old adage that sometimes a court will indulge a policyholder’s effort to get the proverbial second bite of the same apple—at least as long as the fruit is hanging from an insurance company’s tree. In this case, the court allowed the policyholder to split its request for a “declaratory judgment” of the respective rights and obligations of the parties from its claim to recover extra-contractual damages for precisely the same alleged failure to provide coverage for a loss. Disregarding settled principles of res judicata, and with no facial attempt by the policyholder to explain why it had elected to divorce its “bad faith” claim from its contract claim, the First Circuit determined that there was something “special” about the nature of a declaratory judgment action that authorized this entirely duplicative, claim-splitting approach in a garden-variety insurance dispute.
[FULL STORY]
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DRI News
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It takes many leaders to assemble a successful annual meeting. DRI President Marc E. Williams of Huntington, West Virginia, and the 2008 Annual Meeting Steering Committee headed by J. Michael Weston of Cedar Rapids, Iowa, want to thank all of the volunteers for successfully marketing the 2008 meeting. Click on "full story" to see the list of Substantive Law Committee Marketing Chairs.
[FULL STORY]
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Register for DRI’s First Live Webcast!
DRI's Climate Change Litigation Task Forces is presenting DRI’s first live Webcast, "Climate Change Has Come to America: Global Warming Policies of the Obama Administration" on Monday, December 15, 2008 from 1:30 p.m. - 3:00 p.m. Central. Much of the litigation surrounding climate change has focused on states and public interest groups seeking to force Washington to change global warming policies. Now change is coming to Washington. This live webcast is designed to help litigators and clients understand what to expect from the Obama administration’s policies on climate change. From new caps on greenhouse gas emissions, to the cap and trade market for carbon, to international protocols, such as Kyoto, to new EPA regulations at home, this course will outline new policies that the next administration will implement. Click here to register.
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New from the Defense Library Series – Trade Secrets and Agreements Not To Compete
DRI proudly announces the publication of a new compendium of state law specific to the dynamic areas of trade secrets and non-competition covenants. A project of the DRI Commercial Litigation Committee, this publication describes each state's law and procedure in these increasingly important subject areas. Chapter authors are lawyers who regularly practice in these two closely related areas. They advise employers in their states as they draft non-competes and seek protection for the secrets the employers have developed over the years. This publication is written for lawyers who work closely with employers to protect their clients' interests.
[FULL STORY]
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And The Defense Wins!
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Former chair of DRI’s Product Liability Committee, Kevin M. Reynolds, a member with Whitfield & Eddy, PLC in Des Moines, Iowa, recently obtained a defense verdict in a wrongful death, products liability case against a manufacturer that had been sued in state court in Marshalltown, Iowa. Another defendant, Wilcox Repair, was also successfully represented by DRI member John B. “Jack” Grier of Marshalltown, Iowa (not pictured). Plaintiffs’-decedent, Danny Johnson, suffered fatal injuries when he left the operator’s compartment of a Mustang 2040 skid-steer loader, with the engine running and the bucket in the air, and upon re-entry, stepped on the left pedal and caused the lift arms to come down under power. The skid-loader was being used in a hog operation to clean out sheds and to dump dead pigs into a dumpster. The accident occurred on a farm in Marshall County near Gilman, Iowa.
[FULL STORY]
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DRI member Ronald S. Wasilenko of Gobelman, Love, Gavin, Wasilenko and Broughan, LLC in Jacksonville, Florida, teamed with a colleague recently to successfully represent the appellant, Michael Fox, M.D. On October 22, 2008, the First District Court of Appeal reversed the final order of the Board of Medicine in the case of Michael Fox, M.D. v. Department of Health. The appellate court found that the Administrative Law Judge’s finding that the appellant’s actions fell below the standard of care in violation of section 458.331(1)(t) was not supported by competent, substantial evidence.
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In the City of Richmond Circuit Court (renowned for plaintiff verdicts), a defense verdict was returned in favor of the dump truck driver and trucking company, even though the dump truck rear-ended a newspaper van on a rural road. The defense stressed the plaintiff's statement at the scene that his left turn signal was on, in conjunction with his deposition testimony that his four-way flashers were on, but that his right rear flasher was broken. The plaintiff sought $250,000. Successfully defending the dump truck driver and trucking company was DRI member Mark S. Paullin of the Mark S. Paullin Law Firm in Richmond, Virginia.
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Michael P. Cooney and Brittany M. Schultz of Dykema Gossett PLLC in Detroit successfully represented GM in a motor vehicle product liability case. The plaintiff claimed that GM’s inadequate shielding of the exhaust system on a 1999 Astro Van caused an interior van fire that left third degree burns on 40% of the plaintiff’s total body surface.
[FULL STORY]
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In May 2008, Timothy H. Bendin and Kristin L. Hiscutt in the Atlanta, Georgia office of Hall, Booth, Smith & Slover, P.C. obtained a defense verdict in a medical malpractice trial lasting nearly three weeks. The plaintiff alleged that she suffered permanent injury following wrist surgery as a result of a compartment syndrome that was undiagnosed and untreated by the anesthesiologists and the nursing staff at the hospital.
[FULL STORY]
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Trial lawyers Cynthia Day Grimes, Lucretia Marmor and appellate lawyer Ruth Malinas of Ball & Weed, P.C. in San Antonio, Texas, successfully defended Texas Lutheran University recently. After an $11 million demand against Texas Lutheran University claiming that the university was responsible for the death of a cross country runner who was running off campus on a Sunday on her own, the jury found the driver of the truck that hit her 90% responsible, the runner 5% responsible and the university 5% responsible. However, on November 17, 2008, the judge ruled that there was no evidence to support any judgment against Texas Lutheran University and entered a Final Take Nothing Judgment. The plaintiff was represented by the Watts Law Firm.
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Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by e-mail (blowery@dri.org).
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Leader Spotlight
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This week’s spotlight is on Gregory W. Carboy, the Vice Chair of DRI’s Aerospace Committee and the Chair of the Product Liability Committee’s Aviation SLG. He served as the moderator of a panel presentation for the Aviation SLG breakout at the 2008 DRI Product Liability Conference as well as a speaker at the SLG’s breakout at the 2007 Conference. Greg was also the contributing author of the Texas chapter of DRI’s Product Liability Cases and the Duty to Warn: A State-by-State Compendium released in 2007, and his articles have been published in For The Defense. A shareholder in the Dallas, Texas law firm of Cowles & Thompson, he focuses his practice in the areas of product liability, commercial litigation and transportation.
[FULL STORY]
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Legislative Tracking
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Legislative Update — EMPLOYMENT LAW
Missouri
MO HB 55: Abusive work environments.
• An Act to amend chapter 292, RSMo, by adding thereto one new section relating to unlawful employment practices; makes it an unlawful employment practice to subject an employee to an abusive work environment or to retaliate against an employee who opposes that type of environment.
• 12/01/2008 – Prefiled.
MEDICAL LIABILITY AND HEALTH CARE LAW
California
CA HB 2: Individual health care coverage.
• An Act to add, repeal, and/or amend sections of the Health and Safety and Insurance Codes; to require the director and the commissioner to jointly, by regulation, establish standard information and health history questions to be used by health care service plans and health insurers for their individual health care coverage application forms; and for related purposes.
• 12/01/2008 – Introduced.
Michigan
MI SB 1622: Medicaid False Claim Act amendments.
• A bill to amend 1977 PA 72, entitled "The Medicaid false claim act," by amending sections 2, 7, 10a, 10c, 11, and 12 (MCL 400.602, 400.607, 400.610a, 400.610c, 400.611, and 400.612), sections 2 and 7 as amended by 1984 PA 333 and sections 10a and 10c as added and section 11 as amended by 2005 PA 337, and by adding sections 14 and 15.
• 12/02/2008 – Received from House; referred to Judiciary Committee.
TOXIC TORTS AND ENVIRONMENTAL LAW
California
CA HB 19: Carbon Labeling Act of 2009.
• An Act to add Division 27.5 (commencing with Section 44570) to the Health and Safety Code, relating to product labeling. This bill would enact the Carbon Labeling Act of 2009. The Act would require the state board to develop and implement a program for the voluntary assessment, verification, and standardized labeling of the carbon footprint, as defined, of consumer products sold in this state.
• 12/01/2008 – Introduced.
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Quote of the Week
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To educate a man in mind and not in morals is to educate a menace to society.
—Theodore Roosevelt
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DRI Cares
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Sending Your Submission
Are you or your law firm actively involved in community service or pro bono work? If so, DRI would like to hear about it. Please send a short article (750 words max) describing your involvement to Barb Lowery (blowery@dri.org). Representative submissions will be selected for inclusion in The Voice.
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DRI CLE Calendar
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Insurance Coverage and Practice
December 4-5, 2008
Sheraton New York Hotel and Towers, New York, New York
Ethical, Effective and Enjoyable Lawyering (webconference)
December 11, 2008
Global Warming Policies of the Obama Administration (webcast)
December 15, 2008
Defending Medical Monitoring Claims (webconference)
December 16, 2008
Dissecting the Anatomy of a Trucking Case — Suit Filed, Now What? (webconference)
December 18, 2008
Dissecting the Anatomy of a Trucking Case — The Trial and Beyond (webconference)
January 20, 2009
Civil Rights and Governmental Tort Liability
January 28-30, 2009
The Ritz-Carlton New Orleans, New Orleans, Louisiana
Sharing Success — A Seminar for Women Lawyers
March 5-6, 2009
Loews Santa Monica Beach Hotel, Santa Monica, California
Medical Liability and Health Care Law
March 11-13, 2009
Walt Disney World Dolphin, Lake Buena Vista, Florida
Damages
March 18-20, 2009
Bellagio, Las Vegas, Nevada
Toxic Torts and Environmental Law
March 19-20, 2009
Arizona Biltmore, Phoenix, Arizona
For all other seminars and webconferences, click here.
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Unfair Insurance Practices: A Compendium of State Law
Products Liability Defenses—2007
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