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This Week's Feature
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An Organic Condition Is Required to Avoid Disability Plan’s Mental Illness Limitation
By Edna S. Bailey
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
In a recent ERISA decision, Grace Miller v. The Prudential Ins. Co. of Am., No. 07-60882-CIV, 2008 WL 4540998 (S.D.Fla. Oct. 9, 2008), the United States District Court for the Southern District of Florida upheld the insurer’s termination of benefits under the mental illness benefit limitation provision because the plaintiff was unable to demonstrate that her mental disorder was of organic or physical origin.
[FULL STORY]
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Legal News
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Supreme Court Decision: Vaden v. Discover Bank, No. 07-773
Section 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4, authorizes a district court to rule on a petition to compel arbitration if, “save for [the arbitration] agreement” at issue, the court would have jurisdiction of “a suit arising out of the controversy between the parties.” On March 9, 2009, in Vaden v. Discover Bank, No. 07-773, the Supreme Court held that § 4 confers jurisdiction if the underlying, substantive “controversy between the parties” arises under federal law, rejecting the contention that “the parties’ discrete dispute over the arbitrability of their claims” must itself provide a jurisdictional basis for the petition. However, the Court also held that, under the well-pleaded complaint rule, the district court lacked jurisdiction over “the controversy between the parties” to this case because the only federal question in the underlying state-court lawsuit was raised in the defendant’s counterclaim, not in the complaint itself. (Source: Mayer Brown LLP’s Supreme Court Docket Report. For more information, see www.appellate.net/docketreports.)
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DRI News
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Upcoming DRI Webcast: Implications of Supreme Court’s Preemption Decision in Wyeth v. Levine and Possible Strategies in Response
The United States Supreme Court’s recent decision in Wyeth v. Levine involved a critical issue of federal preemption of state tort claims. The Court held that federal law did not preempt plaintiff Levine’s state-law claim that labeling for the prescription drug Phenergan failed to adequately warn about the risks of a particular method of administration. But the ruling held open the possibility that preemption still would apply in future cases involving a different record. DRI’s March 27th webcast features Michael W. Davis, head of Sidley Austin LLP’s product liability and mass torts practice in Chicago and chair of DRI’s Drug and Medical Device Committee, and Rebecca K. Wood, a partner in the appellate and product liability practices at Sidley Austin LLP in Washington, D.C., who represented DRI as amicus in Riegel v. Medtronic, Inc. and Wyeth v. Levine. Mr. Davis represented DRI as amicus curiae in the U.S. Supreme Court in Wyeth v. Levine and Riegel v. Medtronic, Inc. Click here to view the program flyer, To register for the live webcast, click here.
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Join the DRI Group on LinkedIn!
Due to popular demand, DRI is pleased to offer another valuable membership benefit. Join us on the popular networking site LinkedIn for additional professional networking, referral and collaboration opportunities with fellow DRI members. If you don’t already have a LinkedIn profile, you can easily create your own at www.linkedin.com, highlighting your professional expertise and accomplishments. Once you have created your profile, simply search for the DRI group and request to join. Only DRI members are permitted to join. Don’t miss this opportunity—get started today!
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ADTA Annual Meeting
Scottsdale, Arizona
April 15-19, 2009
The Association of Defense Trial Attorneys (ADTA) will meet in Scottsdale, Arizona on April 15–19, 2009. The ADTA President Kevin J. Kelly and his wife Gail are predicting a good time for all who attend. The meeting is being hosted by Tom and Mary Burke, and Jim and Eileen Ryan. The ADTA will be staying at The Westin Kierland, a spectacular resort with lots to do. There is also a short pre-meeting trip to the Grand Canyon. In addition to its members, the ADTA will host the leaders of our sister organizations (DRI, FDCC, IADC and Excess/Surplus Lines).
[FULL STORY]
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Add This Must-Have Reference Guide to Your Library!
Unfair Insurance Practices
This new publication in the Defense Library Series explores insurance practices that are regulated by state statutes or administrative codes. The chapters for each of the 50 states (plus the District of Columbia and the Virgin Islands) are authored by leading attorneys who specialize in insurance defense and coverage. Each chapter focuses on approximately 25 issues, each accompanied by references to applicable state statutes or administrative codes.
[FULL STORY]
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Insurance Coverage and Claims Institute
April 1-3, 2009
The Westin Michigan Avenue Chicago
Chicago, IL
The Insurance Coverage and Claims Institute is a unique opportunity for insurance professionals and the attorneys who advise them to learn the latest developments and issues in insurance coverage and claims handling. The seminar is ideal for both the seasoned veteran and someone new to coverage. This year, attendees are able to select from two different tracks of presentations: one focused on personal lines and the other on commercial lines issues. To view the entire program, click here.
[FULL STORY]
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And The Defense Wins!
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Ken Peirce of the PEIRCE LAW OFFICE in Hutchinson, Kansas, obtained summary judgment in a case alleging medical malpractice. Mr. Peirce defended Dr. Henderson in Bolles v Henderson. The plaintiff went to a hospital emergency room (ER) at 9:45 p.m., stating that he had a history of hypertension and anemia, and had experienced a rectal bleed four hours earlier.
[FULL STORY]
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James A. Rothschild of Anderson, Coe and King, LLP in Baltimore obtained summary judgment in a $5 million subrogation case involving a large fire in Annapolis, Maryland. Mr. Rothschild was assisted by an associate with the firm. The trial court ruled that the Maryland statute of repose barred the case because the electrical work which was alleged to have caused the fire was performed more than 10 years before the fire.
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The Georgia Court of Appeals decided an important trucking case of first impression in August 2008. Clarendon Nat'l Ins. Co. v. Johnson, 293 Ga. App. 103, 108 (2008). This decision will affect all carriers and brokers across the United States. DRI members Jim Fisher and Denise W. Spitalnick in Hall, Booth, Smith & Slover’s Atlanta office successfully defended the trucking company and broker.
[FULL STORY]
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DRI member Kile Turner, a partner with Norman, Wood, Kendrick & Turner in Birmingham, Alabama, won summary judgment for Amerisure Insurance Company in a suit filed by the Public Building Authority of Huntsville, Alabama that alleged bad faith, breach of contract, and a count for declaratory relief. The claim arose from the faulty construction of a new jail for the City of Huntsville/Madison County, Alabama; between $20-30 million in damages were claimed, along with a request for punitive damages against Amerisure. In a highly charged case that was closely followed by the local media, Mr. Turner successfully argued that no coverage existed for the Building Authority’s claims, thus, there could be no bad faith. DRI member William McKenzie assisted with the briefs and argument of the motion.
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In a three-week jury trial before Judge Ana Gardiner in Broward County, Florida, DRI members Philip Ward, Roland Schwartz and Jeffrey Kuntz of Gray Robinson, P.A. in Fort Lauderdale successfully represented a client in a 2002 case raising claims of retaliatory discharge and tortious interference.
[FULL STORY]
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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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Legislative Tracking
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Fueled by DRI’s Young Lawyers Committee, this week’s report highlights legislation from Idaho through West Virginia. The Young Lawyers Legislative Subcommittee is led by co-chairs Emily Turner Landry of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee and Sean W. Shirley of Balch & Bingham LLP in Birmingham, Alabama, plus vice-chair Paul A. Wilhelm of Dykema Gossett PLLC in Detroit, Michigan. Special thanks to these leaders, along with all of the other state contributors.
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IDAHO (Contributor: David Claiborne, Ringert Law Chartered)
HB 0053
Amends Idaho Code 39-7102 et seq.
• Amends existing law relative to emergency hazardous substance response to allow recovery and reimbursement of response costs, and to allow recovery of prelitigation costs and attorney fees.
• 2/3/09 - referred to House Transportation and Defense Committee
S 1004
Amends Idaho Code 18-4006 et seq.
• Amends criminal vehicular manslaughter statute to require restitution in the form of child support for minor children whose parents are killed in an automobile accident.
• 2/3/09 - Senate Judiciary and Rules Committee release with DO PASS recommendation
S 1030
New Law
• Adds law making it a criminal act to use a cellular telephone while operating a motor vehicle, subject to some exceptions, unless using a hands-free device.
• 1/26/09 - referred to Senate Transportation Committee
S 1031
New Law
• Adds law making it a criminal act to use a wireless communication device (e.g., email, text messaging) while operating a motor vehicle, subject to some exceptions.
• 1/26/09 - referred to Senate Transportation Committee
MONTANA (Contributor: Julie A. Lemmer, Alston & Bird LLP)
ENVIRONMENTAL LAW/ENERGY
MT SB 498: Establishes laws governing carbon sequestration.
• This bill establishes laws regulating carbon sequestration; requires a permit for a carbon dioxide injection well; authorizes the board of oil and gas conservation to regulate the injection of carbon dioxide; affirms the dominance of a mineral estate; establishes fees for administering a carbon sequestration program and long-term oversight of wells; requires notice of carbon dioxide injection wells; allows for the transfer of title to sequestered carbon dioxide to the state after board certification; and allows unitization for geologic storage reservoirs.
• 03/05/2009 – Hearing, Energy and Telecommunications Committee.
MT SB 499: Reduces coal severance tax rates for new production for green facilities.
• This bill establishes a reduced coal severance tax rate for production from a new mine or increased production from an existing mine for coal to be used in a coal gasification facility that sequesters carbon dioxide or an integrated gasification combined cycle facility that sequesters carbon dioxide.
• 02/23/2009 – referred to Taxation Committee.
NEW JERSEY (Contributor: Mark D. Shifton, Goldberg Segalla LLP)
TOXIC TORTS AND ENVIRONMENTAL LAW
S1222/A2079: Supplements to P.L. 1985, c.84 (C.26:2-130 et seq.)
• This bill would require retailers to post warnings of lead poisoning from improper paint removal.
• 1/15/2009 – Reported out of Assembly Committee with Amendments.
• 2/5/2009 – Passed by Assembly.
• 2/9/20009 – Referred to Senate Commerce Committee.
S1897/A2962:
• This bill would establish a licensing a program for the licensing of site remediation professionals and would make changes to the laws concerning remediation of contaminated sites.
• 2/26/2009 – Reported from Senate Committee as a Substitute, 2d Reading.
• 2/26/2009 – Reported from Assembly Committee as a Substitute, 2d Reading.
PRODUCT LIABILITY
S981/A2230: Chloe and Samantha’s Law (Supplementing Title 2A of New Jersey Statutes)
• This bill would require retailers to provide written notice to consumers regarding the availability of devices designed to prevent injury caused by tipping furniture or televisions.
• 1/15/2009 – Reported out of Assembly Committee with Amendments.
A3646: Supplements to P.L. 1960, c.39 (C.56:8-1 et seq.)
• This bill would regulate the use of “toxic-free” labels in children’s products. Products containing any amount of phthalates, lead, or bisphenol A would not be allowed to carry a “toxic-free” label.
• 1/13/2009 – Introduced in Assembly, Referred to Assembly Consumer Affairs Committee.
MEDICAL LIABILITY
S2448/A1979: P.L. 1999, ch.34 (amending N.J.S. 2A:62A-23)
• This bill would provide immunity from civil liability to any person using an automatic external defibrillator to provide emergency medical care.
• 1/13/2009 – Introduced in Senate, referred to Senate Judiciary Committee.
TORT LAW
A3742: Supplementing Title 2A of New Jersey Statutes
• This bill limits the ability of non-residents to bring tort suits in New Jersey courts. If a non-resident brings a cause of action in tort against a resident, the law of the site of the tort shall control the case. Under current New Jersey law, the “governmental interest” standard is applied.
• 2/9/2009 – Introduced in Assembly, Referred to Assembly Judiciary Committee.
[MORE]
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Quote of the Week
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A successful man is one who can lay a firm foundation with the bricks others have thrown at him.
—David Brinkley
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DRI Cares
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Gordon & Rees' Diversity Pipeline initiative includes an annual visit of a group of seventh and eighth grade students to the firm's San Francisco office. This year's theme was "Education Opens Doors" and was designed to show the students the wide range of career opportunities available in a law firm by introducing them to the many different disciplines and backgrounds that come together to create a law firm. In January, 20 students from James Lick Middle School met with the firm's managing partner, plus Jack "Skip" McCowan (Gordon & Rees’ Diversity Committee Chair and Vice Chair of DRI’s Drug and Medical Device Committee), and also an associate.
[FULL STORY]
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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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Damages
March 18-20, 2009
Bellagio, Las Vegas, Nevada
Toxic Torts and Environmental Law
March 19-20, 2009
Arizona Biltmore, Phoenix, Arizona
Implications of Preemption Decision in Wyeth v. Levine and Possible Strategies in Response (webcast)
March 27, 2009
Insurance Coverage and Claims Institute
April 1-3, 2009
The Westin Michigan Avenue Chicago, Chicago, Illinois
Beyond a Great Lawyer: Masterful Marketing Skills for Your Practice (webconference)
April 14, 2009
Product Liability Conference
April 15-17, 2009
Hilton San Diego Bayfront, San Diego, California
Commercial and Intellectual Property Litigation Symposium
April 22-24, 2009
Wyndham Chicago, Chicago, Illinois
Life, Health, Disability and ERISA
April 22-24, 2009
Sheraton New York Hotel & Towers, New York, New York
Corporate Representative Deposition (webcast)
April 29, 2009
Employment Law
April 30-May 1, 2009
JW Marriott Orlando, Grande Lakes, Orlando, Florida
Electronic Discovery
May 7-8, 2009
Hilton New York, New York, New York
Culture Clash! Data Protection, Freedom of Information and Discovery — How to Protect Your Business in Transnational Disputes
May 13-14, 2009
Hotel Vier Jahreszeiten Kempinski, Munich, Germany
Drug and Medical Device Litigation
May 14-15, 2009
Sheraton New York Hotel & Towers, New York, New York
First Response — Extra-Record Discovery Request Post-Glenn (webcast)
May 20, 2009
For all other seminars, webconferences and webcasts, click here.
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Trucking Policyholder's Duty to Preserve Coverage
Trade Secrets and Agreements Not to Compete
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