US SUPREME COURT

DISTRICT OF COLUMBIA V. HELLER In a 5-4 opinion written by Justice Scalia, the U.S. Supreme Court overturns D.C.'s 32-year-old ban on handgun possession in one's home, ruling that the law violates the Second Amendment of the U.S. Constitution.

EXXON SHIPPING V. BAKER
In an 8-0 decision, the Supreme Court reduce the $2.5 billion punitive damage award in the Exxon Valdez oil spill case to $500,000.

HALL STREET ASSOCS., L.L.C. V. MATTEL, INC.
The statutory grounds provided by the Federal Arbitration Act (FAA) for expedited judicial review to confirm, vacate, or modify arbitration awards are exclusive, as opposed to mere threshold provisions open to expansion by agreement. In a dispute between a commercial landlord and tenant-manufacturer, involving arbitration of the applicability of a lease indemnification provision for failure to comply with environmental laws, the Ninth Circuit's judgment is vacated and the case remanded for further proceedings.

1ST CIRCUIT COURT OF APPEALS

MRCo, Inc. v. Juarbe-Jimenez In an action invoking the application of Article 40.210 of Puerto Rico Insurance Code, denial and dismissal of entire case on grounds that plaintiff's claims are barred by Article 40.210 is affirmed over plaintiff's contention that: 1) its claims, being equitable in nature, are not barred by Article 40.210's proscription against "action[s] at law"; 2) Article 40.210's apparent prohibition of actions against liquidators and insolvent insurers applies only to actions germane to the liquidation proceeding itself; and 3) Puerto Rico cannot, either by statute or judicial fiat, divest federal court of its jurisdiction.

Puerto Rican Ass'n of Physical Med. and Rehab., Inc. v. US In an action challenging a regulation restricting Medicare reimbursement for physical therapy services, dismissal of the case pursuant to statutory provisions that preclude all actions brought under section 1331 or 1346 of Title 28 to recover on any claims under the Medicare Act is affirmed as the United State Supreme Court has interpreted the 42 U.S.C. section 405 bar to mandate the "channeling" of virtually all legal attacks through the agency

Boston Gas Co. v. Century Indem. Co., No. 07-1452
In a dispute over the extent of insurance coverage owed for an insured-party's strict liability for environmental cleanup costs which, under Massachusetts law, extend to property contaminated during previous land ownership, questions concerning allocation of liability are certified to the Massachusetts Supreme Judicial Court to determine the scope of the parties' disputed coverage. However, as to future costs, insurer cannot re-argue matters that have already been decided, and conversely, insured cannot properly seek to recover for future costs spent purely to remediate its own property where no threat exists of contamination outside the site.

AGA Fishing Group, Ltd. v. Brown & Brown, Inc., No. 07-2408 In a suit alleging that defendant owed a duty to recommend an adequate level of protection and indemnity coverage, summary judgment for defendants on all claims is affirmed where plaintiff did not show the existence of special circumstances that created a duty of care.

Stamp v. Metropolitan Life Ins. Co., No. 07-1061 Plan administrators of an employee benefits plan governed under ERISA may reasonably conclude that an insured, killed in a one-car collision with a tree while driving with BAC of 3 times the legal limit, did not die as a result of an "accident" for purposes of his Accidental Death and Dismemberment life insurance policies.

2ND CIRCUIT COURT OF APPEALS

Air Transport Ass'n of Am., Inc. v. Cuomo
In an action arising from a series of well-publicized incidents in which airline passengers endured lengthy delays grounded on New York runways, some without being provided water or food, summary judgment for defendants on plaintiff's complaint seeking declaratory relief against enforcement of New York State's Passenger Bill of Rights is reversed and remanded where substantive portions of the law are preempted by the Airline Deregulation Act of 1978.

Auto. Club of New York, Inc. v. Dykstra
A permanent injunction preventing New York City from enforcing its tow truck licensing scheme against tow operators from outside the city, as well as an award of attorney's fees and expenses, are affirmed where: 1) enforcement of the licensing scheme against outside operators is not genuinely responsive to safety concerns, and, as a result, is preempted by 49 U.S.C. section 14501(c)(1); and 2) the district court did not abuse its discretion in the award of attorney's fees and expenses.

Employers Ins. Of Wausau v. Fox Entm't Group, Inc.
In an action by insurers seeking declaratory judgment that they had no coverage obligations relating to an underlying copyright infringment suit, the "special circumstances" exception to the first-filed rule does not apply to a declaratory judgment filed in the absence of a direct threat of litigation in a forum with at least some ties to the litigation.

In Re: Prudential Lines Inc., No. 05-5925
In bankruptcy proceedings wherein a bankruptcy court denied a motion by trustee and creditors for approval of a proposed structure for the use of insurance indemnities to pay creditor's claims, judgment is reversed and remanded where: 1) the proposed payment structure was not a "sham" designed to provide an appearance of complying with a pay-first requirement of the indemnity policy without actually doing so; and 2) reasons advanced in opposition of the proposed structure lacked merit.

In Re City of New York
In a tort action arising out of a ferry crash into a maintenance pier, a bench trial judgment which found the city negligent and denied limitations of liability is affirmed where the city did not act with reasonable care when it allowed a single pilot to operate the Staten Island Ferry without at least one other person in or near the pilothouse, aware of the navigational circumstances, and ready to render or summon assistance in the event of an emergency.

Krauss v. Oxford Health Plans, Inc.
In an action against defendants-plan administrators for various violations of ERISA and the Women's Health and Cancer Rights Act, summary judgment for defendants is affirmed where defendants did not violate either statutes or the terms of the insurance plan in declining to reimburse the plaintiffs for: 1) more than $30,000 of plaintiff's $40,000 doctor's bill for bilateral breast reconstruction surgery where the maximum reimbursement for a single such surgery would have been $20,000; or 2) private-duty nursing following the reconstruction surgery. Claims for breach of fiduciary duty pursuant to ERISA and remaining claims are also without merit.

Paneccasio v. Unisource Worldwide, Inc., No. 06-3950
In an action alleging violations of the Age Discrimination in Employment Act (ADEA) and ERISA arising after plaintiff's former employer terminated his deferred compensation plan, paid him deferred income, and ended his life insurance benefit, summary judgment for defendant is affirmed where: 1) "top hat plans", such as the one plaintiff participated in, are exempt from ERISA's provisions; 2) defendant's decision to terminate the plan was not arbitrary or capricious; 3) there was no evidence that plaintiff was induced into early retirement or that defendants anticipated an early termination of the plan; 4) plaintiff's ADEA claim was time barred and not subject to tolling; and 5) dismissal of plaintiff's state law claims was proper.

3RD CIRCUIT COURT OF APPEALS

CBS V. FCC
A federal appeals court threw out the $550,00 fine imposed by the FCC against CBS for Janet Jackson's "fleeting image of nudity" on national television during the 2004 Super Bowl XXXVIII Halftime Show broadcast, an incident that may best be remembered more for its "wardrobe malfunction" defense.

Dicarlo v. St. Mary Hosp., No. 06-3579
In a class action suit asserting numerous claims against several medical care defendants for their billing practices to uninsured patients, grant of defendants' motion for judgment on the pleadings is affirmed where the district court's analysis correctly stated the law with respect to each of plaintiff's claims on unjust enrichment, breach of contract, defendant's alleged violation of state consumer protection law and breach of fiduciary duties.

Pineda v. Ford Motor Co.
In a products liability action brought against Ford by an automobile technician who was injured when the rear lift-gate glass of a 2002 Ford Explorer shattered, summary judgment for Ford is reversed and remanded where the district court erred in: 1) excluding an expert witness who should have been qualified as an expert even though he may not have been the "best qualified" expert; 2) focusing exclusively on Fed. R. Evid. 407 and failing to consider Rule 703, which governs the bases of opinion testimony by experts; and 3) holding that the expert witness failed to establish a causal link between the alleged defect in the service manual language and plaintiff's injury.

Prusky v. ReliaStar Life Ins. Co., No. 07-1691, 07-1901, 07-3408
In a suit for breach of contract alleging that defendants breached their insurance contract by refusing to allow plaintiffs to engage in the frequent trading of various mutual funds, a mitigated award for damages against defendant on one claim and summary judgment for defendants on the second claim are affirmed where: 1) the court correctly found that plaintiffs did not appropriately mitigate their damages through passive, post-breach allocation of funds to a risk-free, low-return money market fund which was not a comparable alternative investment opportunity; 2) the trial court's findings on the availability of alternative mitigation strategies, and on the amount of the mitigation offset, were not erroneous; and 3) plaintiffs were collaterally estopped from relitigating the question of the scope of defendant's contractual obligations.

4TH CIRCUIT COURT OF APPEALS

Citibank Texas, N.A. v. Progressive Cas. Ins. Co.
In a suit brought by Citibank against defendant as the issuer of a Financial Institution Bond, claiming it should cover a loss Citibank sustained in a prior state court action filed against it by a depositor on a claim of unauthorized endorsement, summary judgment for plaintiff on a breach of contract claim is reversed where the district court erred in holding that: 1) defendant was collaterally estopped from contesting the state court's determination; and 2) the endorsements were "unauthorized" for purposes of the Bond.

In Re: Peanut Crop Ins. Litig.
In an action against the government over the indemnification of losses covered by a privately issued and governmentally backed insurance policy, summary judgment for farmers on breach of contract claims is vacated and the case remanded where: 1) the policy did not create any contractual obligation for insurers to indemnify the farmers for lost peanuts in 2002 at a 31 cent quota rate since it was contingent on 2002 farm poundage quota allocations being made to individual farmers, and such allocations were never made; 2) the prevention doctrine was misapplied since the indemnification of the farmers did not depend on the allocation of quotas by the government; and 3) there was no detrimental reliance since government programs are subject to congressional modification, and the farmers had been notified that there would be revisions to the peanut quota program.

Penn-America Ins. Co. v. Mapp
In a suit by an insurance company asserting that it had no duty to defend or indemnify its insured against tort claims, an appeal of partial summary judgment for defendants on the duty to defend issue is dismissed where: 1) the order was not final for purposes of appeal since the district court ruled on only one of two issues and administratively closed the case pending resolution of a state court matter; and 2) dismissal did not deprive the plaintiff of its only means to appeal the duty to defend issue.

5TH CIRCUIT COURT OF APPEALS

Bilbe v. Belsom, No. 07-30869
In an action brought by plaintiff arising from defendant's payment of homeowners insurance under the Water Damage Exclusion, which limited the amount of money plaintiff received, summary judgment for defendant is affirmed where: 1) the term "flood" includes storm surges and the omission of the specific term does not create ambiguity in the policy regarding coverage in a hurricane, and does not entitle the homeowner to recovery for flood induced damages; 2) plaintiff waived several arguments by not raising them in district court; and 3) the court did not abuse its discretion when it denied several pre-trial motions.

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., No. 06-60463
Summary judgment in favor of defendants after the court concluded that the insurance policies purchased by plaintiff from defendant do not cover claims made in a lawsuit filed against plaintiff, and that defendant has no duty to defend or indemnify, is vacated and the case remanded where: 1) Mississippi law resolved ambiguity in favor of the insured so that a Seed Merchants Endorsement enlarged the term "damages because of property damage" in the commercial general liability policy to cover "loss resulting from an error in mechanical mixture of seed;" 2) a Seedmen's Limitation to the umbrella policy can also be read to enlarge the terms of coverage to include loss arising out of error in mechanical mixture of seed; 3) a "property damage expected or intended" exclusion does not apply; 4) a "your product" exclusion does not apply because the damage was done to the farmer's crop land's use; and 5) a Seedmen's Modified Liability Coverage Endorsement does not apply since it limits recovery for losses resulting from the seed's failure to germinate.

Nat'l Union Fire Ins. Co. of Pittsburgh v. Puget Plastics Corp., No. 06-41619
In a suit seeking declaratory judgment with regard to indemnification sought from plaintiff-insurer after a jury found that defendants knowingly violated the Texas Deceptive Trade Practices Act, partial summary judgment for defendants and denial of plaintiff's motion for summary judgment is affirmed where: 1) although defendant's actions were deliberate, the jury made no finding that defendant intended or expected the harm or whether the harm was highly probable; 2) plaintiff had the burden to establish that an impaired property exclusion applied; and 3) defendants could present evidence at trial regarding facts necessary to determine coverage that were not adjudicated in the underlying case.

Noble Energy Inc. v. Bituminous Casualty Co., No. 07-20354
In an insurance coverage dispute involving whether defendant had a duty to defend and indemnify plaintiff in connection with an underlying suit arising from an explosion in an oilfield, summary judgment in favor of defendant is affirmed where: 1) a pollution exclusion clause applies whenever a pollutant causes a harm by a physical mechanism enumerated in the policy, irrespective of where the injury took place or whether the pollutant was released into the environment; 2) the pollution exclusion clause eschewed coverage of the claims asserted against plaintiff; and 3) defendant did not have a duty to defend plaintiff nor did it owe indemnification to it.

Stamp v. Metropolitan Life Ins. Co., No. 07-1061
Plan administrators of an employee benefits plan governed under ERISA may reasonably conclude that an insured, killed in a one-car collision with a tree while driving with BAC of 3 times the legal limit, did not die as a result of an "accident" for purposes of his Accidental Death and Dismemberment life insurance policies.

Broussard v. State Farm Fire & Cas. Ins. Co.
In an action brought by plaintiffs, who lost their home during Hurricane Katrina, to collect benefits under their homeowner's insurance policy, grant of judgment as a matter of law and an award of punitive damages for plaintiffs is reversed in part and vacated in part where the district court erred as a matter of law in entering JMOL as: 1) it erred in finding that the destruction of plaintiffs' personal property by the hurricane was sufficient to establish a separate assertion that the property was destroyed by "windstorm," a "named peril" under their coverage; 2) a rational jury could conclude that the home and personal property were destroyed by water, an excluded peril; and 3) a decision to submit the punitive damages question to the jury required reversal, and the award is vacated.

Crocker v. Nat'l Union Fire Ins.
In a case in which plaintiff sought to recover on the basis of a $1 million default judgment for a personal injury claim, summary judgment for plaintiff on a claim to recover her judgment as a third party beneficiary from defendant-insurer is reversed where defendant owed no duty to defend insured-tortfeasor, or to sua sponte notify him that its policy covered him, based on his failure: 1) to request defense in any manner, 2) to give defendant notice of the suit, 3) to furnish it copies of any relevant papers; and 4) to comply with its relevant notice provisions.

Donelon v. Louisiana Div. of Admin. Law
In a declaratory judgment action brought by the Commissioner of Insurance for the State of Louisiana attacking the constitutionality of a Louisiana statute setting forth the Division of Administrative Law's authority to review executive agencies' decisions, dismissal of the action is affirmed where the Commissioner lacked standing to bring the cause of action.

Essinger v. Liberty Mut. Fire Ins. Co., No. 07-60376
In an action claiming punitive damages for failure to recognize the effect of Mississippi law on the calculation of benefits that were owed, summary judgment for defendant is affirmed where: 1) defendant did not deny any benefits; 2) it offered what it considered to be, although incorrect, its policy limit; and 3) at most, there was just a delay as defendant attempted to figure out how much to pay under the policy.

Foradori v. Harris
In a personal injury action arising from an altercation involving plaintiff-restaurant customer and an off duty restaurant employee, a multi-million dollar judgment pursuant to a jury verdict for plaintiff is affirmed primarily where the evidence supported a reasonable jury's findings that the defendant fast food restaurant operator's negligent failures to regulate, train, supervise, and control its off-duty employees on its premises were proximate causes of plaintiff customer's quadriplegia.

Gore Design Completions. Ltd. v. Hartford Fire Ins. Co. , No. 08-50042
In a suit by an insured seeking a declaratory judgment that defendant-insurer had a duty to defend plaintiff against negligence claims, summary judgment for defendant is reversed and remanded where: 1) under the Texas "eight corners" rule, an insurance company determines its duty to defend an underlying liability lawsuit with reference to the terms of the policy and the pleadings of the third-party claimant; and 2) the language of the policy and the claim, liberally construed, triggered defendant's duty to defend plaintiff for work performed by plaintiff's subcontractor, and none of the policy's exclusions applied to relieve defendant of its duty.

Hartford Underwriters Ins. Co. v. Found. Health Servs. Inc.
In a coverage dispute between an insurer and the owner/operator of various healthcare facilities and nursing homes, denial of insurer's motions for declaratory judgment and partial summary judgment is affirmed where the district court correctly found that the law of Mississippi, not Louisiana, applied to a dispute between the insurer and one of defendant's subsidiaries involving reimbursement for attorney's fees incurred by its independently-retained counsel.

In Re: Katrina Canal Litig. Breaches
In a class action brought by the Attorney General of Louisiana alleging that defendants-insurance companies failed to pay covered insurance claims following Hurricanes Katrina and Rita, and as a result breached the insurance contracts to which the state was a partial assignee, denial of the state's motion to remand after the case was removed to federal court is affirmed over claims that: 1) the Class Action Fairness Act (CAFA) does not apply; and 2) even if it does apply by its terms, it cannot abrogate sovereign immunity from federal process, or at the least Congress did not clearly do so in CAFA. The state waived immunity by bringing a suit with private citizens.

Lehmann v. GE Global Ins. Holding Corp.
In a suit brought against a parish's liability insurers to collect on a judgment obtained against the parish in an underlying personal injury case, dismissal of the suit with prejudice is affirmed where: 1) contrary to the ruling below, the direct action statute does not require that plaintiff's suit against the insurer be dismissed simply because she did not join the insured; but 2) the action against insurer prescribed when plaintiff failed to file suit within one year after the judgment in her first suit became final.

LA ex rel Caldwell v. Allstate Ins. Co., No. 08-30465
In a parens patriae action alleging violations of Louisiana's antitrust laws, denial of plaintiff's motion to remand the case back to state court after removal to federal court pursuant to the Class Action Fairness Act is affirmed where: 1) the Louisiana attorney general has power to bring parens patriae antitrust actions and possesses broad powers to vindicate the interests of the state; 2) the policyholders and not the state are the real parties in interest due to the state's request for treble damages; and 3) plaintiff waived its Eleventh Amendment immunity.

Madison Materials Co. Inc. v. St. Paul Fire & Marine Ins. Co.
In an action involving coverage for a myriad acts of theft over almost a decade under policies issued by defendant which protect plaintiff from employee theft, summary judgment for insurer is affirmed where, contrary to plaintiff's claim, the losses it suffered over a period of ten years constituted a single occurrence even though the scheme spanned multiple policy periods.

Regan v. Starcraft Marine LLC
In a personal injury suit in which defendant-boat manufacturer filed a third-party complaint against the government seeking indemnity on the basis of alleged negligence by an Army recreational facility, dismissal of the third-party claim pursuant to the Feres doctrine is reversed and remanded where, contrary to the ruling below, jurisdiction existed because the service member who was injured on the boat was not engaged in activity incident to military service.

Smith v. Liberty Life Ins. Co., No. 07-30946
In a suit seeking coverage under an accidental death insurance policy, summary judgment for defendant is affirmed where: 1) the policy was a blanket accident insurance policy and delivery to plaintiff by certified mail was not required; 2) there was no abuse of discretion in considering the declaration of an employee of defendant's third party administrator to demonstrate delivery of the certificate of insurance; and 3) defendant proved that decedent's level of intoxication impaired his faculties and contributed to his death.

The Rice Co. (Suisse), S.A. v. Precious Flowers Ltd.
In an action brought by a rice shipper against defendants arising from damages sustained by rice cargo, denial of defendants' motion to compel arbitration in New York is affirmed where: 1) the parties to instruments at issue unambiguously structured their relationship such that defendant-vessel owner was not a party to the voyage charter containing the arbitration clause; 2) the district court did not err in holding that the bill of lading did not bind the vessel owner to the voyage charter's mandatory arbitration clause; and 3) the circuit court rejects a claim that if a bill of lading contains any arbitration clause, the in rem vessel and the in personam representative of the vessel must be compelled to arbitrate.

US v. Ogba
Defendants' convictions and sentences resulting from a scheme involving billing Medicare for false prescriptions for wheelchairs are affirmed in part over claims of error regarding: 1) whether the circuit court abused its discretion in refusing to provide defendants with a copy of a colloquy between a recruiter and the judge; 2) a refusal to admit an e-mail about the recruiter into evidence; 3) cumulative errors regarding the recruiter's testimony; 4) a Confrontation Clause claim, and whether any such error was harmless; 5) a deliberate ignorance instruction; 6) whether the indictment was void; and 7) whether the indictment failed to allege an offense enumerated in the Constitution. One defendant's sentence is reversed and remanded based on a claim that his convictions under the health care fraud and illegal remuneration statutes were multiplicitous and violated double jeopardy.

6TH CIRCUIT COURT OF APPEALS

B & H Med., L.L.C. v. ABP Admin., Inc.
In an antitrust case involving the legality of an agreement which established an exclusive network of preferred providers to supply types of medical equipment to enrollees in certain health-benefits plans offered to Chrysler, Ford, and state employees and retirees, a judgment and sanctions against plaintiff whose application to the network was rejected are affirmed, and appellate sanctions imposed, where: 1) plaintiff's antitrust claims lacked any conceivable merit; 2) a challenge to a discovery order failed; and 3) sanctions imposed below were not an abuse of discretion, and further, appellate sanctions were warranted.

Assoc. Indus. of Kentucky, Inc. v. U.S. Liab. Ins. Group, No. 07-5662
In an action for declaratory judgment as to whether defendant had a duty to defend plaintiff against several lawsuits in state court and a duty to cover any liabilities that might arise from the lawsuits, summary judgment for defendant is affirmed where defendant had not duty to defend any lawsuits arising from the offering of an insurance program due to an exclusion in the contract between the parties.

LoCoco v. Med. Sav. Ins. Co., No. 07-3973
In a suit arising from a denial of medical benefits coverage after plaintiff's husband was treated for a respiratory ailment which was later diagnosed as lung cancer, summary judgment in favor of defendant is affirmed where: 1) defendant properly denied one year of benefits as the illness was a "pre-existing condition" for which his policy precluded coverage; 2) defendant properly canceled coverage due to plaintiff's failure to pay their premiums; 3) defendant had no duty to inform the plaintiff of its intent to cancel their policy for non-payment; and 4) defendant did not act in bad faith when it denied coverage and canceled coverage since it was reasonably justified to do so.

Metro. Life Ins. Co. v. Glenn, No. 06-923
The Supreme Court rules that the dual role of ERISA plan administrators that both determine whether an employee is eligible for benefits, and pay benefits out of their own pockets, creates a conflict of interest. Thus, a reviewing court should consider such conflict as a factor in determining whether a plan administrator has abused its discretion in denying benefits, and the significance of the factor will depend upon the circumstances of the particular case.

Evanoff v. Standard Fire Ins. Co., No. 07-4187
In a suit seeking insurance coverage for flood damage to plaintiff's condominium unit, summary judgment for defendant is affirmed where: 1) plaintiff failed to comply with the procedural requirements for submitting a proof of loss statement, as mandated by the federal regulations governing the National Flood Insurance Program; 2) defendant did not repudiate its policy with plaintiff; and 3) plaintiff had ample opportunity to conduct discovery.

Flamingo Express, Inc. v. Fed. Aviation Admin., No. 07-4226
In a complaint filed with the FAA by the operator of an air service alleging that a city had violated its obligations under federal law by, among other things, failing to approve an application and requiring that petitioner obtain unreasonably high liability insurance coverage, dismissal of the complaint is affirmed where the city did not violate its federal obligations.

Fieger v. Cox
In an action alleging vindictive prosecution against Michigan's Attorney General, a state Supreme Court Justice, and the state's Secretary of State, as well as others in the AG's office, dismissal of plaintiffs' claims and imposition of sanctions against them are affirmed where: 1) because the issues raised in a state court were substantially the same as those raised in the district court, because those interests implicated important state interests, and because the plaintiffs had ample opportunity to raise their constitutional challenge in the state proceedings, the district court properly refrained from exercising jurisdiction in this case; and 2) imposing sanctions for plaintiffs' claims against the justice was not an abuse of discretion.

In re: HNRC Dissolution Co., No. 07-5894
In a bankruptcy case involving an administrative expense claim filed by an insurer which provided insurance coverage to debtors during the pendency of their Chapter 11 bankruptcy proceedings, denial of the claim based on a holding that it does not constitute an "actual, necessary cost[] and expense[] of preserving the estate" as required by 11 U.S.C. section 503(b)(1)(A) is affirmed for the reasons stated by the district court judge.

Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.
In an action brought by Ford and its cargo insurer against defendant-ocean carrier for damages arising from the loss of cargo during a transatlantic voyage, partial summary judgment for defendant and third-party defendants is reversed where the district court erroneously interpreted the bill of lading to apply Carriage of Goods by Sea Act (COGSA) instead of the Hague-Visby Rules, and additional briefing and fact-finding may be required before the liability limitation may be appropriately applied. (Amended opinion)

7TH CIRCUIT COURT OF APPEALS

Ambrosia Land Invs., LLC v. Peabody Coal Co.
In a suit concerning damage to plaintiffs' property as a result of mine subsidence, summary judgment for defendant is reversed where plaintiffs' claims were not barred by the Illinois Construction Statute of Repose since defendant was sued in its capacity as the owner of the mine, not as a party engaging in construction-related activities.

BASF AG v. Great Am. Assurance Co.
In a suit seeking to recover damages from defendants-insurers for their failure to defend and indemnify plaintiff during a suit over the marketing of a synthetic thyroid drug, summary judgment for plaintiff is reversed and remanded where the terms of the insurance policies, as a matter of law, did not obligate the insurers to defend or indemnify plaintiff.

Cont'l Cas. Co. v. Staffing Concepts, Inc., No. 07-2475
In a suit over workers' compensation insurance policies, an order striking a motion to compel arbitration is dismissed for lack of appellate jurisdiction where the order was a delay incident to an orderly process, and not a final refusal of a request to stay judicial proceedings.

De Manez v. Bridgestone Firestone N.A. Tire, LLC, No. 07-1126
In a products liability suit brought by foreigners arising from defective tires installed on Ford Explorers, an order sanctioning plaintiff is vacated and the case remanded where: 1) the district court had subject matter jurisdiction to decide whether there had been an abuse of process and whether appellant's contacts with the Indiana proceeding were sufficient to support personal jurisdiction; 2) the district court possessed inherent authority to address the kind of abuse with which appellant was charged; and 3) appellant did not receive constitutionally adequate notice and an opportunity to be heard in the proceeding that led to the $100,000 fine and other sanctions against him.

Fed. Ins. Co. v. Arthur Andersen LLP
In a declaratory action over an insurer's duty to defend or indemnify, judgment for the defendant-insured is reversed where the plaintiff-insurer was not estopped from asserting the policy's exclusion for strictly contract cases since Illinois recognizes an exception to its estoppel doctrine if an insured indicates that it does not want the insurer's assistance or is unresponsive or uncooperative.

Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund, No. 07-3456
In a suit for negligent misrepresentation and estoppel over defendant-benefit plan's refusal to pay for medical services provided by plaintiff-provider, denial of plaintiff's motion to remand to state court is reversed and dismissal of claims is vacated where, because the claims related to an alleged misrepresentation rather than a mere denial of benefits, and because the duties alleged to have been breached had a basis independent from the ERISA statute, the doctrine of complete preemption did not apply and there was no federal jurisdiction.

Guaranty Bank v. Chubb Corp., No. 07-3367
In a suit involving an insurer's obligation to defend its insured under an "advertising injury" policy when the insured was sued over the similarity of its name to a competitor's, summary judgment to the defendant-insurer is affirmed where: 1) plaintiff-insured had failed to give defendant timely notice of the suit and 2) plaintiff had been sued for common-law trademark infringement and unfair competition, but plaintiff's policy covered only suits involving registered trademarks.

Guardian Pipeline, LLC v. 950.80 Acres of Land
In a condemnation action under 15 U.S.C. section 717f(h) involving the construction of a natural-gas pipeline, the ruling below is affirmed over appellants'-owners challenge where: 1) 28 U.S.C. section 455 does not apply to commissioners; 2) assuming that the section would apply, the commissioner would not be disqualified since disqualification is case specific; 3) the court would not consider an allegation of impropriety under section 455(a) since it was not raised until after the commission had made a decision; and 4) there was no abuse of discretion in the use of expert testimony since the commission's report addresses the strengths and weaknesses of the witnesses.

Lyerla v. AMCO Ins. Co., No. 07-3104
In a breach of contract suit alleging that defendant-insurer failed to defend plaintiff-insured when he was sued over a construction contract, summary judgment for defendant is affirmed where plaintiff's liability policy covered only "property damage" resulting from an "occurrence," and therefore did not obligate defendant to defend plaintiff when he was sued for breach of contract for allegedly failing to complete construction work.

Mobley v. Allstate Ins. Co., No. 06-3834
In a suit brought under the Americans with Disabilities Act (ADA) alleging failure to accommodate plaintiff's disability, discriminatory termination, and unlawful retaliation, summary judgment for defendant is affirmed where: 1) defendant reasonably accommodated plaintiff's disability; 2) plaintiff failed to establish her prima facie case that she was terminated due to discrimination and not for failure to meet her job's performance requirements; and 3) the retaliation claim failed as she did not establish a causal connection between her protected activity and the adverse action.

Nautilus Ins. Co. v. Reuter, No. 06-4019, 07-1400
In a suit by an insurer seeking a declaration that it owed neither defenses nor indemnification to several of its insured companies facing negligent-hiring suits, summary judgment for plaintiff is affirmed in part and vacated and remanded in part where: 1) Indiana law did not require the insurer to cover negligent-hiring claims under the general liability policies it had issued; 2) the district court properly applied choice-of-law rules to determine that several of the insured companies were subject to Indiana law and therefore not covered for negligent-hiring claims; and 3) further factual findings were required to determine whether Indiana or Illinois law applied to a final insured company.

Prima Tek II, LLC v. Klerk's Plastic Indus., B.V.
In a contract case involving a licensing dispute between two companies that operate in the pot cover business, judgment for defendant is affirmed where: 1) plaintiff failed to prove a material breach of the contract; 2) plaintiff failed to prove damages flowing from a breach of contract; and 3) the district court did not abuse its discretion in concluding that defendant took reasonable and diligent steps to comply with a court order and denying a contempt petition.

REI Transp., Inc. v. C.H. Robinson Worldwide, Inc.
In a suit alleging breach of contract, conversion, and unjust enrichment arising out of payments withheld on a delivery contract because of missing cargo, judgment for defendant is affirmed where: 1) although the Carmack Amendment does not preempt claims that do not affect a carrier's liability for lost or damaged goods, it could justify the shipper's exercise of a withholding clause and invalidate a liability-limiting clause in the contract; 2) defendant made out a prima facie case under the Carmack Amendment, thus had a valid reason for withholding payment; and 3) the Amendment invalidated the liability-limiting clause.

Soltys v. Costello
In a suit for injuries arising out of a car accident, the judgment for plaintiffs is affirmed where: 1) the district court did not abuse its discretion in denying plaintiffs' motion to amend since the plaintiffs' attorney unduly delayed the filing of the amended complaint; and 2) the district court properly denied plaintiffs' motion for a new trial since statements made during defense counsel's opening statement were not prejudicial and closing statements were not improper.

Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd.
In a suit by an insurer to recover damages from international shipping companies for damaged goods, judgment for plaintiff is affirmed where: 1) state setoff and contribution laws are not preempted by the Warsaw Convention; 2) defendant was entitled to a damages setoff in the amount of a settlement between plaintiff and two previous defendants; 3) the district court correctly concluded that the setoff was subtracted from plaintiff's total proven damages rather than the amount of defendant's limited liability under the Warsaw Convention; and 4) prejudgment interest is not appropriate under the terms of the Convention.

Springman v. AIG Mktg.
In a class action suit against insurers alleging that defendants violated fraud and consumer protection law by underpaying accident insurance claims submitted by the plaintiff and the members of his class, denial of the plaintiff's motion to remand to state court is affirmed where the substitution of a defendant did not relate back to the original suit since the plaintiff's delay in moving for substitution prevented the new defendant from knowing that, but for mistake, the action should originally have been brought against it. Thus, the filing date of the lawsuit for removal purposes under the Class Action Fairness Act was the date of substitution, which placed the action within the Act's effective date and allowed for removal to federal court.

St. Paul Fire and Marine Ins. Co. v. Vill. of Franklin Park
In a suit for declaratory judgment involving whether plaintiff-insurer had a duty to defend defendant-village in an underlying suit brought by firefighters, summary judgment for plaintiff-insurer is affirmed where a settlement paid to remedy a failure to make required contributions to a pension by part of defendant-village was not a "loss" under the insurance contract.

Supreme Laundry Serv., L.L.C. v. Hartford Cas. Ins. Co.
In a suit alleging that plaintiff's insurer had a duty to defend it in litigation against a competitor, judgment in favor of defendant-insurer is reversed where: 1) the policy was ambiguous as to whether its provisions were limited to only suits by natural persons and not corporations; and 2) defendant was estopped from raising a policy defense to coverage.

Gutta v. Standard Select Trust Ins. Plans, No. 06-3708
In a suit arising from defendant's determination that the plaintiff was no longer eligible for continuing disability benefits after it found that plaintiff was able to perform any gainful occupation under the terms of its plan, summary judgment for defendant on a counterclaim for restitution of the disability benefits and against plaintiff on his claim is affirmed where: 1) no enforceable settlement contract came into being since there was no meeting of the minds; 2) a finding that plaintiff could obtain other employment as described in the plan was not arbitrary and capricious since it was based on substantial evidence that was consistent with the medical evidence in the record; 3) a counterclaim was not a state law claim for damages due to commingling of assets or dissipation, since there is an equitable lien by agreement between plaintiff and defendant.

IN Funeral Directors Ins. Trust v. Benefit Actuaries, Inc., No. 07-2351
In a suit alleging violation of fiduciary duties under ERISA and breaches of common law duties to plaintiff by providing it with bad advice and failing to recommend measures that would stave off insolvency, judgment for defendant is affirmed where: 1) plaintiff did not provide evidence that defendants promised to administer the Trust in accordance with certain state law or that defendants knew the Trust would rely on it to follow the Michigan statute; 2) plaintiff failed to show that defendant assumed a duty to provide actuarial advice; 3) defendant did not breach a duty by failing to advise trustees about the risk of raising the specific stop loss deductible and about the Trust's poor financial situation; and 4) defendant did not breach a duty by failing to recommend that the Trust maintain adequate reserves.

Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., No. 07-3762
In an action alleging that defendant-insurer breached an insurance contract by refusing to pay plaintiff's losses resulting from a burglary of its premises, and that its efforts to settle the claim were in bad faith, summary judgment for defendant is affirmed where: 1) plaintiff breached the contract by refusing to submit to a requested Examination Under Oath (EUO) as it was not unreasonable for defendant to require a second EUO; and 2) the plaintiff failed to raise any triable issue of fact regarding whether defendant's conduct in handling the claim, conducting an EUO, and requesting information and another EUO was in bad faith.

8TH CIRCUIT COURT OF APPEALS

Anderson v. Farm Service Agency, No. 07-2843
In an appeal of a determination by the Farm Service Agency, a ruling upholding a decision by the FSA which adjusted plaintiff's claim for crop disaster relief downward under the Quality Loss Program is affirmed where: 1) the FSA did not act arbitrarily or capriciously by interpreting its regulations in a manner that precluded plaintiff from using the yield in his actual production history records; and 2) plaintiff failed to establish an alternative applicable rate.

Am. Growers Ins. Co. v. FCIC, No. 07-1655, 07-1749
In a suit alleging that defendant erred under 7 U.S.C. section 1508(j)(3) by adding prevented planting coverage to basic federal crop insurance policies without increasing the premium rate that the insurance company could charge, summary judgment for defendant for a crop year and summary judgment for the plaintiff for another crop year are both reversed, and the matter dismissed where: 1) the statute's indemnification requirements were intended to apply only where an insurer has been sued by a producer to recover on a claim for loss; and 2) section 1508(j)(3) does not provide a cause of action for plaintiff's claims.

Auto Servs. Co. v. KPMG, LLP, No. 07-3164
In an action brought by a corporation engaged in marketing vehicle warranties against defendants alleging professional-negligence in the preparation of certain financial documents, dismissal of the claims and denial of reconsideration are affirmed where, although the district court abused its discretion by denying plaintiff's Rule 59(e) motion for reconsideration as untimely under a local rule, the error was harmless.

Alpine Glass, Inc. v. Ill. Famers Ins. Co., No. 07-2021
In a suit to recoup losses after defendant allegedly paid less than the amount due when presented with invoices for fixing or replacing automobile glass, an appeal from an order dismissing defendant's counterclaim for breach of contract and requests for declaratory judgment relief under Minnesota's No Fault Automobile Insurance Act is dismissed for lack of jurisdiction.

Dill v. Gen. Amer. Life Ins. Co.
Federal Rules of Civil Procedure 6(b)(2) and 50(b) are non-jurisdictional claims processing rules that provide an affirmative defense to untimely filings if raised, but which can be forfeited if not timely raised.

Fitzgerald v. Action, Inc.
In an action against former employer premised on claims of age discrimination and interference with employment benefits, summary judgment for employer is reversed and remanded in part where: 1) employee had adduced sufficient evidence to show accumulated misconduct may not have been true impetus behind his termination, but rather a pretext for interfering with his insurance benefits; and 2) viewed in concert with other evidence of pretext, the close temporal proximity between employee's notification and employer's termination supported an inference of retaliatory intent.

Gaillard v. Jim's Water Serv., Inc., No. 07-3160
In a negligence suit arising after plaintiff was struck and injured by a vehicle driven by individual defendant, and owned by defendant-company, while he attempted to repair a parked motorcycle on the shoulder of a highway, judgment pursuant to a jury verdict for defendants is affirmed where: 1) the district court properly instructed the jury on contributory negligence, assumption of risk, and the legal excuse doctrine; and 2) the district court properly found when plaintiff presented evidence to suggest he suffered a loss of income, he opened the door for defendants to produce evidence of his tax returns to contradict his claims.

Lamp v. Astrue, No. 07-2148
In an action for disability insurance benefits and supplemental security income benefits, partial denial of benefits for claimant is affirmed in part and reversed in part where: 1) the ALJ did not err by considering its own observations when making an assessment regarding claimant's disability; and 2) the record did not reflect whether a letter submitted by claimant's doctor stating that he was disabled as of a certain date adequately explained a discrepancy between treatments notes and his statements.

Murray v. Greenwich Ins. Co., No. 07-2463
In a declaratory judgment action seeking to determine rights and obligations under an insurance contract, summary judgment for plaintiffs is reversed and the case remanded where exclusion language in the contract applied, and defendant does not have a duty to defend since the claims asserted alleged an injury originating from plaintiffs' mishandling of funds.

Menz v. Proctor and Gamble Health Care Plan
In an action involving denial of benefits under an employee benefits plan for a "back-up" prosthetic arm and hand, grant of summary judgment on the administrative record is affirmed where: 1) district court did not err when it reviewed the Plan's decision for abuse of discretion, even though plaintiff's claim was subject to more than two appeals; 2) administrative record is not deemed incomplete as plaintiff never requested the court to permit limited discovery or supplementation of the record; and 3) plaintiff fails to demonstrate that the plan administrator abused its discretion in its denial of benefits.

Ohio Savings Bank v. Progressive Cas. Ins. Co.
In a dispute over whether a bank's losses were covered by a bankers bond issued by defendant-insurer, summary judgment for insurer is affirmed where the district court correctly held that the terms of the bond unambiguously precluded coverage under either the Fraudulent Mortgages Insuring Agreement or a provision of the Insuring Agreement.

PHL Variable Ins. Co. v. Fulbright McNeill, Inc.
In an action seeking the termination of a life insurance policy premised on an applicant's misrepresentation of health conditions, grant of summary judgment for insurer is affirmed where, under Arkansas law of uberrima fides, an applicant for insurance who discovers facts that renders portions of his/her application no longer true while the company deliberates must make full disclosure of newly discovered facts.

Spirtas Co. v. Fed. Ins. Co.
In a case where an insurer of directors and officers liability (D&O) policies refused to defend and indemnify the insured in a third-party lawsuit, summary judgment for defendant-insurer is affirmed where the district court: 1) properly determined the D&O policies' contract exclusions applied; 2) correctly held that defendant had no duty to defend or indemnify plaintiff in the third-party lawsuit; and 3) did not err in giving the insurance exclusion provisions a broad meaning.

St. Paul Fire and Marine Ins. Co. v. Bldg. Constr. Enter., Inc, No. 07-2246
In an insurance coverage dispute, a district court's choice-of-law determination is affirmed where the district court correctly determined that: 1) under Missouri law, the multi-factored test contained in Restatement (Second) of Conflict of Laws section 188 controlled and required examination of the states' contacts with the present case; and 2) Missouri was the state with more substantial contacts in the underlying case.

Saunders v. Farmers Ins. Exch., No. 07-1894, 07-1897, 07-1903
In purported class actions on behalf of persons living in a "single, contiguous black community in Kansas City" claiming, inter alia, that defendant-insurance companies violated the Fair Housing Act, and federal civil rights laws by charging higher rates to homeowners in such community than those charged to homeowners in white communities, dismissal of plaintiffs' claims is affirmed where the theory of liability asserted and the relief sought by plaintiffs would impair state law by interfering with Missouri's comprehensive administrative regime, and thus the claims are barred by the McCarran-Ferguson Act.

Shirt v. Hazeltine
An order denying plaintiffs' motion for expert witness fees under section 6 of the "Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006" ("VRARA") is affirmed where applying section 6 of VRARA would have retroactive effect, and thus in accordance with Supreme Court precedent, is presumed to not govern.

Tonicstar Ltd. v. Lovegreen Turbine Servs., Inc., No. 06-3503
In a declaratory judgment action claiming plaintiff had no duty to defend or indemnify insured-turbine servicer in an action for damages brought by an oil refinery owner, summary judgment for insurer is affirmed where: 1) a particular policy exclusion, which excludes coverage for property damage to property which must be repaired because the insured's work was incorrectly performed, applied; and 2) it excluded both the cost of restoring a damaged compressor, as well as the significantly greater sum for lost business while it was out of service.

Thompson v. State Farm Bureau Cas. Ins. Co.
In an action involving an insurance offer settlement, adverse denial of plaintiffs' post-judgment motions to amend the judgment and for reconsideration is vacated and remanded where: 1) the district court erred in determining that defendant's offer of judgment was legally valid under Rule 68; and 2) judgment entered pursuant to Rule 68 is void.

Warren v. State Farm Fire & Cas. Co., No. 07-2010
In a suit to recover proceeds from an insurance policy after plaintiff's home burned down and defendant denied the claim, a directed verdict for plaintiff on defendant's material misrepresentation defense and a jury verdict in favor of plaintiff are affirmed where: 1) plaintiff's incorrect statements were not material misrepresentations as defined by defendant's policy as it presented no evidence that plaintiff possessed the requisite intent to mislead; 2) defendant failed to present evidence that plaintiff had knowledge that her statements were a material misrepresentation; and 3) there was no abuse of discretion in stating to the jury that the district court had granted a directed verdict for the plaintiff on the material misrepresentation affirmative defense.

Wakkinen v. UNUM Life Ins. Co. of Am., No. 06-3054
In an ERISA action, summary judgment for defendant upholding its denial of long-term disability benefits under an employer-offered plan is affirmed where substantial evidence supported plan administrator's finding that claimant was not "continuously disabled" through the 180 days of his elimination period as defined within the policy in dispute.

Evanston Ins. Co. v. Johns, No. 07-2303
In a coverage dispute over whether a massage therapist's general liability policy covered sexual assault claims brought against him, summary judgment in favor of insurer is affirmed where: 1) the district court did not abuse its discretion in declining to stay or dismiss a declaratory judgment action under the federal abstention doctrine; and 2) the language of the parties' insurance policy clearly excused insurer from any duty to defend or indemnity the insured for claims arising out of his massage sexual misconduct.

Tweedle v. State Farm Fire & Cas. Co., No. 07-1616
In an appeal challenging a ruling on plaintiff's post-judgment motions after she prevailed on an breach-of-contract claim against an insurer-defendant, judgment is affirmed where the district court: 1) did not err in allowing plaintiff's ex-husband to intervene to protect any claim he might have to insurance proceeds; 2) committed no legal or procedural error in granting insurer-defendant's post-appeal motion to amend the judgment to reflect setoffs; and 3) did not err in denying plaintiff's motion to proceed against the corporate surety.

Tweedle v. State Farm Fire & Cas. Co., No. 07-1616
In an appeal challenging a ruling on plaintiff's post-judgment motions after she prevailed on an breach-of-contract claim against an insurer-defendant, judgment is affirmed where the district court: 1) did not err in allowing plaintiff's ex-husband to intervene to protect any claim he might have to insurance proceeds; 2) committed no legal or procedural error in granting insurer-defendant's post-appeal motion to amend the judgment to reflect setoffs; and 3) did not err in denying plaintiff's motion to proceed against the corporate surety.

Wakkinen v. UNUM Life Ins. Co. of Am., No. 06-3054
In an ERISA action, summary judgment for defendant upholding its denial of long-term disability benefits under an employer-offered plan is affirmed where substantial evidence supported plan administrator's finding that claimant was not "continuously disabled" through the 180 days of his elimination period as defined within the policy in dispute.

9TH CIRCUIT COURT OF APPEALS

Council of Ins. Agents & Brokers v. Molasky-Arman
Nevada's "countersignature" statute, Nev. Rev. Stat. section 680A.300, is unconstitutional as it violates the Privileges and Immunities Clause of Article IV because Nevada's discrimination against licensed nonresident insurance agents is not closely related to a substantial reason for that discrimination beyond the mere fact that they are citizens of other states.

Ferguson v. Coregis Ins. Co., No. 06-35867
When an insurance company includes a policy endorsement meant to reduce the dollar limits to which it will respond for its policyholder's liability, but does so by reference to a non-existent standard, the endorsement is ineffective to reduce those limits.

James River Ins. Co. v. Herbert Schenk, P.C.
In a professional liability insurer's action involving its coverage of defendant-law firm in a malpractice suit, summary judgment for insurer on a claim seeking a declaration of no coverage and on a bad faith counterclaim is reversed where: 1) the district court erred in granting summary judgment on insurer's claim that it was allowed under state law to deny coverage based on fraud; 2) summary judgment was also unwarranted on the basis of a policy section because it was not clear that the malpractice claim was reasonably foreseeable; and 3) the district court erred in entering summary judgment on a bad faith counterclaim.

Life Ins. Co. of N. Am. v. Ortiz, No. 07-55308, 07-55331
In a case involving an interpleader action over the life insurance proceeds for an officer killed in the line of duty involving circumstances in which decedent's ex-wife was the designated beneficiary, a judgment awarding the life insurance proceeds to the estate for intestate division among his new wife and decedent's two sons is reversed and remanded where: 1) ex-wife's expectancy interest survived the divorce, and thus the district court erred when it relied on decedent's post-divorce intent to terminate her expectancy interests; and 2) decedent's original designation of his ex-wife remained valid under applicable law and the policy terms.

Manzarek v. St. Paul Fire & Marine Ins. Co.
In an insurance coverage and bad faith lawsuit arising out of two lawsuits involving members of the rock band, The Doors, dismissal of plaintiffs' complaint is reversed and remanded where: 1) the underlying complaints raised at least the potential for coverage under the operative insurance policies; and 2) the district court abused its discretion by not giving plaintiffs an opportunity to amend their complaint.

Negrete v. Allianz Life Ins. Co. of N. Am.
In a class action lawsuit against an insurance corporation challenging the sale of its fixed deferred annuities, an order, which effectively prevents defendant from proceeding with any settlement negotiations on similar class action claims raised in any other courts without permission from plaintiff's lead counsel, is reversed where: 1) in the context of the All Writs Act, there was no proper support for the district court's enjoining of proceedings in other courts; and 2) even if there were, the Anti-Injunction Act barred such injunction.

New Hampshire Ins. Co. v. C'Est Moi, Inc.
In an action to rescind an insurance policy arising after defendant-insured's yacht sank, summary judgment for the insurer is affirmed where: 1) the parties didn't attempt to contract out of uberrimae fidei, or the federal maritime doctrine imposing a duty of utmost good faith in the context of marine insurance contracts; 2) the insured misrepresented material facts in an insurance policy application; and 3) thus, insurer was entitled to rescind the policy.

Progressive Cas. Ins. Co. v. Owen
In coverage dispute involving a commercial auto insurance policy brought by plaintiff-insurer against defendant, former vice-president, secretary, and director of corporate named insured, summary judgment for defendant is reversed where: 1) the district court erred in reforming the policy to provide coverage to all owners, officers, and directors of the corporate named insured, regardless of whether they were occupying an insured auto; and 2) insurer was entitled to summary judgment because defendant presented no evidence that she was using a friend's truck in place of one of insured's vehicles that was withdrawn from use because of breakdown, repair, servicing, loss, or destruction.

Sgro v. Danone Waters of N. Am., Inc., No. 06-55916
In an ERISA action arising from a denial of plaintiff's claim for disability benefits, dismissal of plaintiffs' claims is affirmed in part and vacated in part where: 1) dismissal of state law claims was proper as defendant's disability plan is governed by ERISA, but the dismissal should have been without prejudice; 2) a California insurance regulation does not require defendants to reimburse plaintiff for the cost of copying the medical records that defendant-insurer/administrator requested, as that regulation is preempted by ERISA; 3) defendants did not violate ERISA's regulation on "claims procedures" by requiring documentation from plaintiff regarding his claim; and 4) a remand was required in part as to dismissal of a claim that defendants violated ERISA section 1132(c)(1) for failing to turn over certain documents.

Sony Computer Enter. Am., Inc. v. Am. Home Assurance Co., No. 05-17425
In a suit brought by Sony against insurers for failing to indemnify and defend it in a class action suit alleging product defects in the Sony PlayStation 2 video game system, summary judgment for defendants is affirmed where neither insurance company had a duty to indemnify or defend Sony in the underlying lawsuit, primarily since the suit did not assert claims within the meaning of the term "negligent publication." The circuit court defines the term "negligent publication" as a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct.

10TH CIRCUIT COURT OF APPEALS

Am. Cas. Co. of Reading Pa. v. Health Care Indem., Inc.
In an action between two insurance companies concerning the apportionment of liability for a professional malpractice incident, district court's judgment that each insurer should pay its pro-rata share of both the underlying loss and the defense cost is affirmed where: 1) both policies provided excess coverage; 2) neither policy contains language that can be construed as creating escape clauses to disclaim liability if other insurance is available; and 3) district court properly applied the doctrine of equitable contribution for two policies with the same risk at the same level of coverage.

Carolina Cas. Ins. Co. v. Yeates, No. 07-4019
In a declaratory judgment action seeking a declaration that plaintiff is no longer liable on an insurance policy as required by federal regulation for any additional damage arising from an accident after another insurance company tendered its policy limits to defendants, summary judgment for defendants is affirmed where: 1) a federally required endorsement amends the underlying insurance policy so as to negate any limiting provisions, so that plaintiff's policy provides primary insurance coverage for the accident; 2) the holding is limited to the issue of possible liability, and not to ultimate financial responsibility; 3) the language in the endorsement is not triggered by any conditions outside the policy; and 4) the endorsement does not act as a surety to operate as an insurer of last resort.

Campfield v. State Farm Mut. Auto. Ins. Co., No. 06-1442, 06-1467, 06-1469
In a suit alleging violations of the Sherman Act, the Colorado Consumer Protection Act (CCPA), and tortious interference with contractual relations, dismissal and summary judgment for defendant, and a decision not to rule on plaintiff's objection to discovery orders are affirmed where: 1) plaintiff's claims under section 2 of the Sherman Act failed to allege an appropriate market; 2) defendants dod not engage in per se horizontal restraint of trade under section 1 of the Act; 3) claims under section 1 of the Sherman Act failed for failure to allege a legally relevant market; 4) plaintiff has failed to provide sufficient evidence for a CCPA claim; 5) tortious interference claims failed for lack of evidence; and 6) there was no abuse of discretion in not ruling on plaintiff's discovery motion.

In re: Aramark Leisure Servs. v. Kendrick
In a special proceeding under the Limitation of Vessel Owner's Liability Act arising from a boating accident, and involving coverage for the accident, a judgment finding that plaintiff-vessel owner's insurer was required to provide primary coverage to the vessel operator is reversed and remanded where: 1) there was federal subject matter jurisdiction over the matter; and 2) the district court erred in holding the insurer liable to the operator, as the insurer had a valid escape clause and the operator has no claim against it that he is required to exhaust under Utah Code Ann. section 31A-28-213(1)(a).

Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., No. 06-1434, 06-1435, 06-1463
In a suit brought by a federal contractor against a subcontractor after it terminated the subcontractor for default, wherein the subcontractor counterclaimed for wrongful termination, judgment and award to defendant on its counterclaim is affirmed in part, reversed in part, and remanded where: 1) a prior appeal did not discharge a supersedeas bond and it was still in effect, but surety's liability, however, is limited to the penal sum of the bond; 2) prejudgment interest was properly awarded but was improperly calculated on the entire damage award from the date of termination; 3) a duplication of damages occurred and a remand for remittitur or new trial on damages was required; 4) plaintiff was entitled to judgment as a matter of law on a bond equitable adjustment; 5) challenges to the judgment against plaintiff as to another subcontractor and surety failed; and 6) the judgment requires amendment to reflect the accurate post-judgment interest rate.

Pompa v. Am. Family Mut. Ins. Co.
In an action involving an insurer's duty to defend and indemnify plaintiff-insured with respect to a wrongful-death action brought against him after he pled guilty to negligent homicide, a judgment finding that insurer had no duty to defend or indemnify plaintiff is affirmed over claims that: 1) a criminal-conviction exclusion in his homeowner's insurance policy applies only to a conviction after trial; 2) public policy bars the exclusion; and 3) Colorado law does not permit consideration of his conviction in determining the duty to defend when the wrongful-death complaint makes no mention of it.

Sewell v. Great N. Ins. Co., No. 07-1255
In an action raising claims of breach of contract, negligent misrepresentation, breach of fiduciary duty, breach of the duties of good faith and fair dealing, and deceptive trade practices, summary judgment for defendant-insurance brokerage firm is affirmed where: 1) there was no breach of contract because plaintiffs received precisely what they requested, an umbrella policy with no excess UM/UIM coverage; 2) defendant had no "special relationship" with plaintiffs requiring it to affirmatively advise or warn them concerning their coverage; 3) defendant made no negligent misrepresentations as no false information was conveyed to plaintiff; 4) defendant did not breach any fiduciary duty, nor any duty of good faith and fair dealing; and 5) deceptive trade practice claims failed as plaintiffs did not show that any allegedly deceptive practice affected the public.

Tademy v. Union Pac. Corp.
In a Title VII and 42 U.S.C. section 1981 action alleging that defendant-railroad maintained a racially hostile work environment, summary judgment for the railroad is reversed and remanded where: 1) a reasonable jury could find that a co-worker's hanging of a life-size noose, which occurred within the limitations period, stemmed from racial animus; 2) various other discriminatory acts at issue outside the limitations period were sufficiently related to constitute "a single, actionable hostile work environment"; 3) a reasonable jury could find that the hostile environment was sufficiently severe; 4) there was a triable issue as to whether a recurrence of racist graffiti was the sort of harassment that in the exercise of reasonable care should have been discovered by management-level employees, and as to the adequacy of the railroad's remedial response; 5) plaintiff was not barred from raising claims included in a previous complaint for which he received a right-to-sue letter; and 6) summary judgment on the section 1981 claim was erroneous for the same reasons, as the National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), rule applies to section 1981 hostile environment claims.

Wrenn v. Astrue
A district court's determination that the combined attorney's fees for representation before the Social Security Administration (SSA) and on appeal to a district court cannot exceed 25% of past-due benefits is reversed and remanded where the Commissioner and the court have the authority to independently determine the appropriate attorney's fees, and the 25% limitation on fees for court representation is not itself limited by the amount of fees awarded by the Commissioner.

Zurich Am. Ins. Co. v. O'Hara Reg'l Ctr. for Rehab., No. 06-1357, 06-1370, 06-515
In a lawsuit seeking a declaratory judgment as to whether insurers have a duty to defend or indemnify defendants under a professional services provisions against claims brought by the federal government for fraud under the False Claims Act and several other state common law claims, summary judgment for insurers is affirmed where: 1) the government's injury was caused by defendant's submission of false and fraudulent claims for reimbursement and not by defendant's failure to provide professional services; 2) the term "professional services" does not cover the preparation of bills or invoices since processing Medicare and Medicaid claims does not require a specialized professional service; 3) a petition for permission to appeal the district court's order declaring plaintiffs entitled to reimbursement for defense costs is dismissed; and 4) a motion to certify a question to the Colorado Supreme Court is denied.

11TH CIRCUIT COURT OF APPEALS

Essex Ins. Co. v. Zota, No. 05-13457, 05-14671
In a per curiam opinion, the judgment of the district court is vacated and the case remanded where the Florida Supreme Court answered three of the court's certified questions and determined that the remaining questions could not be decided from the summary judgment record as explained in Essex Ins. Co. v. Zota, __ So. 2d __, 2008 WL 2520879 ( Fla. June 26, 2008).

Glazer v. Reliance Standard Life Ins. Co.
In an appeal invoking an issue under ERISA as to when medical reports relied on by a plan administrator during the review of a denial of benefits must be produced to the claimant for her to receive a "full and fair review", summary judgment for plan administrator is affirmed where: 1) the pertinent federal regulations did not require plan administrator to produce the medical reports requested by plaintiff during the pendency of the review; 2) the district court applied the correct legal standard of review; and 3) the decision by plan administrator to deny plaintiff's application for benefits was right.

Int'l Underwriters AG v. Triple I: Int'l Inv., Inc., No. 07-10284
In an action against the surety of a loan for fraud after the loan amount was not tendered and the surety kept part of a loan fee, denial of surety's motion to compel arbitration is affirmed where: 1) an agreement for issuance of a bond did not include an arbitration provision; 2) the escrow agreement contained an arbitration clause; and 3) the transaction contemplated by the escrow agreement did not include the bond commitment.

Reeves v. Astrue
An award of attorney's fees granted under the Equal Access to Justice Act (EAJA), 28 U.S.C. section 2412(d)(1)(A) belongs to the "prevailing party", which is the party and not the party's attorney.

Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A.
In an action alleging defendants-attorney and law firm violated the Driver's Privacy Protection Act (DPPA) by wrongfully obtaining and using personal information contained in driver's license records, summary judgment for defendants is affirmed where the district court: 1) did not err in placing the burden on plaintiff to show a purported violation of section 2724(a) of the DPPA; and 2) properly weighed the summary judgment evidence.

Waldron v. Brown, No. 07-15081
In a matter where plaintiff-debtor's claims for legal relief arose after confirmation but before completion of his plan to pay creditors and where plaintiff was required to amend his schedule of assets to disclose proceeds of any settlement of those claims, judgment in favor of defendant-trustee is affirmed where: 1) the plain text of 11 U.S.C. section 1306(a) establishes that plaintiff's claims are property of the estate; and 2) the bankruptcy court has the discretion to require an amendment of the debtors' schedule of assets under Federal Rule of Bankruptcy Procedure 1009.

CALIFORNIA

Bouton v. USAA Cas. Ins. Co., No. S149851, S149847
In the context of Insurance Code section 11580.2, which requires insurers to provide coverage for bodily injury or wrongful death caused by uninsured motorists, the determination of whether a claimant is insured under an uninsured motorist provision is not a question of the underinsured tortfeasor's liability or damages owed to the insured, and is therefore not subject to arbitration under section 11580.2(f). However, an arbitrator should decide if a default judgment obtained by the insured against the underinsured tortfeasor binds the insurer.

Campagnone v. Enjoyable Pools & Spas Serv. & Repairs, Inc.The unauthorized failure of a party, the party's attorney, or a representative of the party's insurance carrier, to attend a court-ordered appellate mediation necessarily constitutes conduct that is an unreasonable violation of local rule 1(d)(9), warranting imposition of sanctions.

Laabs v. City of Victorville, No. E040778
In a multi-party lawsuit brought by a plaintiff injured in an automobile collision wherein one of plaintiff's purported claims was against city-defendant based on allegations that her injuries were caused by a "dangerous condition of public property" for purposes of Government Code sections 830 and 835, summary judgment for city-defendant and subsequent orders denying the city's motion for defense costs and expenses are both affirmed where: 1) the evidence established the applicability of the doctrine of design immunity as a matter of law, and plaintiff failed to meet its burden of showing such immunity was lost as a result of "changed circumstances"; however 2) a favorable judgment did not automatically entitle the city to cost recoveries when nothing suggested that plaintiff's claims were objectively unreasonable.

Long v. Century Indem. Co., No. B195281
A subsequent fee dispute between insured's counsel and insurer is subject to mandatory arbitration under Civil Code section 2860, subdivision (c) where: 1) upon agreeing to provide defense to its insured under a "reservation of rights", an insurer elects not to have counsel representing its own interests participate in a third-party action, and allows insured's selected counsel to conduct and control the entire defense; and 2) the reservation of rights creates a conflict of interest that trigger the insurer's duty to provide independent counsel.

Los Angeles Unified Sch. Dist. v. Great Am. Ins. Co. In consolidated appeals reviewing several rulings on a school district's breach of contract claims involving a construction project, grant of a motion for summary adjudication, a motion for judgment on the pleadings in favor of plaintiff, and other rulings in its favor are reversed where: 1) the trial court committed reversible error by not considering, on a provisional basis, extrinsic evidence proffered in support of one party's interpretation of a completion agreement; 2) the trial court erred by concluding that section 7105(d)(2) barred its rescission claims as a matter of law; 3) case precedent did not bar such claims either; 4) a ruling that the party could not, as a matter of law, maintain a cross-action against the district for breach of contract based on breach of implied warranty required reversal was error; 5) a ruling regarding joint and several liability required reversal; and 6) an award of attorney's fees could not stand.

Medina v. Safe-Guard Products, Int'l, Inc., No. G038816
Consumers who purchase insurance contracts from companies unlicensed to sell insurance in California are not left with an unenforceable contract by reason of parts which are void. However, in an action brought under the Unfair Competition Law (UCL) wherein an individual holding this type of contract sought to be plaintiff in a class action suit whose case depended on the unenforceability of the contract, judgment dismissing plaintiff's case is affirmed where plaintiff did not suffer the requisite injury in fact, causation, and reliance from the contract for an actionable claim under the UCL.

Roberts v. Assurance Co. of Am., No. G038749
In a coverage dispute involving a construction insurance policy wherein plaintiffs asserted contract and tort claims against their homeowner insurance carrier and insurance brokers, judgment for defendants after the trial court granted their motions for summary adjudication is affirmed over plaintiffs' claims that: 1) for purposes of claims against insurance brokers, there were triable issues of fact regarding whether brokers were requested to obtain general liability insurance in addition to course of construction insurance; and 2) their claims against their insurance carrier fell within a collapse coverage provision of the policy, and that there were triable issues of fact as to the efficient proximate cause of their loss.

State Farm Fire & Cas. Co. v. Superior Court (Wright), No. B202768
When an insured person throws someone into a swimming pool intending to get the other person wet, but by mistake, fails to throw hard enough resulting to the tossed victim landing on the pool's cement step and sustaining injuries, the incident qualifies as an "accident" within the meaning of insurance law.

Westrec Marina Mgmt., Inc. v. Arrowood Indem. Co., No. B195047
In a coverage dispute arising from plaintiff-insured's failure to timely report claims as required under its insurance policies, judgment denying relief on plaintiff's complaint against its liability insurer is affirmed where: 1) a letter from a third party claimant's attorney to plaintiff-insured was a "claim" within the meaning of plaintiff's insurance policies; 2) a later action filed by the third party claimant constituted the same claim; and 3) plaintiff-insured"s failure to timely report the "claim" after receiving the letter rendered its later notice of claim untimely.

California Logistics, Inc. v. State of California
In a case involving tension between the application of collateral estoppel to "pay first, litigate later" rule under section 32 of article XIII of the California Constitution, section 32 takes precedence over collateral estoppel doctrine.

City of Hollister v. Monterey Ins. Co., No. H029296
In an action to recover destroyed building's "functional replacement value" under an insurance policy, judgment for plaintiff-city is affirmed over claims of error that: 1) the appeal was moot and the case must be dismissed; 2) the trial court erred in ruling that as a result of defendant-insurer's conduct it was estopped to raise a 180-day contracting clause as a defense to a claim for functional replacement value coverage; and 3) city failed to demonstrate that it could and would have satisfied the contracting condition had defendant behaved differently. Judgment is modified to provide that the 180-day period provided therein will begin to run when this court's opinion is final as to this court and the time to seek review from the California Supreme Court has expired.

Costco Wholesale Co. v. Superior Court (Randall)
In a proceeding where petitioner seeks nondisclosure of a letter, which was redacted by the trial court under the attorney-client privilege and work product doctrine, petition for writ of mandate is denied where extraordinary relief is not warranted, as petitioner has not demonstrated how it will be irreparably harmed by the release of the letter as redacted.

County of Santa Clara v. Superior Court (Atlantic Richfield Co.)
People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), itself does not bar public entities from engaging in private counsel under a contingent fee arrangement to assist in a litigation so long as the public entities' in-house counsel retain control over all decision-making. An order barring public entities from compensating their private counsel by means of any contingent fee agreement is vacated where the record contained no evidence that private counsel have ever engaged in any conduct that invaded the sphere of control exercised by the public entities' in-house counsel.

Crawford v. Weather Shield Mfg. Inc., No. S141541
In a case involving the contractual duty to defend in a noninsurance context, judgment and rulings against defendant-subcontractor is affirmed where, by their particular terms, the provisions of a pre-2006 residential construction subcontract obliged subcontractor to defend its indemnitee-developer/builder in lawsuits brought against both parties, insofar as the plaintiffs' complaints alleged construction defects arising from the subcontractor's negligence, even though: 1) a jury ultimately found that the subcontractor was not negligent; and 2) the parties accepted an interpretation of the subcontract that gave the builder no right of indemnity unless the subcontractor was negligent.

Devonwood Condominium Owners Ass'n v. Farmers Ins. Condominium Owners Ass'n In a fire insurance policy coverage dispute concerning the effects of an appraisal award issued by an appraisal panel pursuant to the policy's provisions, judgment in favor of insured is vacated and remanded where the lower court's judgment did not conform to the appraisal award upon which it was based, in violation of Code of Civil Procedure section 1287.4.

Doe v. United Airlines, Inc.
In an action involving a minor's claims against United Airlines arising out of a sexual assault, summary judgment for defendant is affirmed as plaintiff could not show that she had suffered bodily injury within the meaning of the "Warsaw Convention". However, grant of plaintiff's motion for a new trial is reversed where, although plaintiff submitted evidence that an assault caused post-traumatic stress, she established none of the required elements of "newly discovered evidence" to support a new trial.

Employers Reinsurance Co. v. Superior Court (Thorpe Insulation Co.)
"Course of performance" evidence is relevant and may be used for the interpretation of insurance contracts. However, such evidence is only admissible when the performance was pursuant to the contract to be interpreted, not a subsequent settlement agreement.

Explorer Ins. Co. v. Gonzalez, No. C057450
In a declaratory relief action seeking a determination that defendant had no cognizable claim for underinsured motorist benefits, judgment for plaintiff is affirmed where: 1) under the "narrow coverage" of uninsured/underinsured benefits in California the comparison in coverage is based on the potential for recovery and not what is actually recovered in a particular case; and 2) each policy contained the same coverage limit.

Fogel v. Farmers Group, Inc.
Attorneys-in-fact for subscribers of reciprocal insurance exchanges may be sued by subscribers to recover alleged excessive fees the attorneys-in-fact collected in breach of their fiduciary duty to subscribers where the attorneys-in-fact are entities distinct from the exchanges, with fiduciary relationships with each of the subscribers.

Garcia v. Paramount Citrus Assn., Inc.
In a tort action against a private landowner for injuries sustained from a traffic accident alleging that landowner owed a duty to place a warning on its private road alerting drivers to the approaching intersection with the public road, denial of landowner's motion for summary judgment is reversed as landowner owed no legal duty under the facts of this case.

Great Am. Ins. Co. v. Gordon Trucking, Inc. , No. F053336
In a negligence action in which a truck insured by plaintiff-insurance company was damaged in a fire, summary judgment for defendant is reversed where, disregarding certain of defendant's facts which were unsupported by the evidence cited or were supported only by evidence to which an objection was or should have been sustained, the facts were insufficient to meet defendant's burden of demonstrating that the action against defendant had no merit.

Great W. Drywall, Inc. v. Interstate Fire & Cas. Co.
In a coverage dispute in which the trial court determined that the insurer owed no defense or indemnification for an action between a general contractor and subcontractor under a "commercial general liability" policy, summary judgment for insurer is affirmed where: 1) the underlying policy included a "cross-suits exclusion" provision; 2) the trial court correctly determined that the exception to the "cross-suits exclusion" was inapplicable to a cross-complaint which could not fairly be characterized as an action for indemnity or apportionment; and 3) thus, the policy afforded no coverage for the underlying action as a matter of law.

Grenall v. United of Omaha Life Ins. Co., No. A118823
In an action for rescission of an annuity arising after an individual died of cancer less than four months after purchasing the annuity that provided for monthly benefit payments as long as she lived, summary judgment for defendant-issuer is affirmed where a contracting party bears the risk of a mistake when the agreement so provides or when the party is aware of having only limited knowledge of the facts relating to the mistake but treats this limited knowledge as sufficient.

Keener v. Jeld-Wen, Inc.
In a wrongful death action arising from a motor vehicle collision, a judgment for plaintiff and damages award, representing an 80 percent fault allocation to defendants pursuant to a special verdict, is reversed and remanded in part where the trial court erred: 1) in accepting the juror declarations to inquire into and resolve the results of the jury's decision-making process; 2) when it made a credibility determination that a jury foreperson could not effectively have voted other than 80/20 at any relevant time; and 3) in failing to reconvene the jury for further deliberations on the basis of a jury dissent when there was no essential ninth vote on the special verdict for apportionment of liability.

Lyons v. Fire Ins. Exch.
In an insurance coverage dispute where the insurer denied coverage under insured-plaintiff's homeowners policy for damages resulting from a third-party's claims based on an alleged sexual attack by former professional baseball player, summary judgment for insurer is affirmed where: 1) the policy at issue contained an "accident" limitation provision; and 2) upon interpreting the policy language in its context and viewing the instrument as a whole, the underlying incident did not qualify as an "accident" covered within the meaning of the policy.

Miller v. Am. Greetings Corp.
In an action arising from a traffic accident in which respondeat superior principles were contested, summary judgment for tortfeasor's employer is affirmed where plaintiffs failed to offer any evidence which could convince a reasonable trier of fact that the tortfeasor caused the underlying accident in the course and scope of his employment. However, an award of attorney's fees for defendants is reversed as the district court abused its discretion in awarding fees when plaintiffs committed no wrong in refusing to admit certain discovery requests.

Palm Med. Group, Inc. v. State Compensation Ins. Fund
In a cause of action arising from denial of plaintiff's admission into the preferred provider network (PPN) operated by State Compensation Insurance Fund, grant of defendant's motion for judgment notwithstanding verdict is reversed where: 1) the trial court erred in granting the motion as the records included ample evidence to support the jury's finding; and 2) defendant's alternate arguments in support of the trial court's judgment were without merit.  

Qualcomm, Inc. v. Certain Underwriters at Lloyd's, London
In a dispute about the scope of insurance coverage, judgment for defendant is affirmed in a situation where: 1) plaintiff's request to expand the scope of policy coverage on public policy grounds is rejected; and 2) under a literal interpretation of the policy language, defendant's coverage obligation did not arise.

Everett v. State Farm Gen. Ins. Co.
In a coverage dispute against an insurer alleging, inter alia, breach of contract, breach of good faith and fair dealing, promissory fraud, fraudulent misrepresentation, and negligent misrepresentation, judgment for defendant is affirmed where: 1) upon interpreting plaintiff's policy, the policy language was not unclear and did not guarantee to cover plaintiff's loss in its entirety; 2) plaintiffs assertions were insufficient to support a claim for a breach of contract; 3) with no breach of contract, there was no breach of the implied covenant of good faith and fair dealing; 4) the underlying facts established no misrepresentation, negligent or intentional.

People v. Bhakta
In an action involving claims of prostitution nuisance at a motel, a judgment permanently enjoining defendants from facilitating or encouraging prostitution, or providing a place where prostitution can occur on the premises pursuant to the "Red Light Abatement Law" and unfair competition law, as well as an award of fees and costs to the government, are affirmed where: 1) the trial court did not err in proceeding with a bench trial, as defendants were not entitled to a jury trial; and 2) the court properly exercised its discretion in awarding attorney fees and costs.

Profit Concepts Mgmt., Inc. v. Griffith
In a suit brought by a California-based company against a former employee-Oklahoma resident for breach of contract, wherein the employment contract at issue provided that in any litigation involving the contract, the prevailing party would be entitled to recover attorney's fees and costs, judgment for former employee awarding costs including attorney's fees is affirmed where: 1) because the trial court granted the employee's motion to quash service for lack of personal jurisdiction, the employee was the party prevailing on the contract under Civil Code section 1717; and 2) thus, he was entitled to recover reasonable attorney's fees as costs.

Rodriguez v. Blue Cross of California
Denial of a petition to compel arbitration is affirmed where arbitration provisions in an enrollment form of a health care service plan failed to comply or substantially comply with Health and Safety Code section 1363.1.

Royal Indem. Co. v. United Enter., Inc.
In an insurance coverage action wherein the trial court denied a motion to intervene on grounds that neither public policy nor existing authority would allow for such intervention at the time, the order denying intervention is affirmed where: 1) the intervener had not shown that it met the applicable criteria for permissive intervention under Code Civ. Proc. section 387; and 2) its reliance upon certain cases in support of its position was inapposite.

Serrano v. Stefan Merli Plastering Co., Inc.
Code of Civil Procedure section 2025.510, subdivision (c), and the court's inherent authority to control its ministerial officers and other persons connected with a judicial proceeding in furtherance of justice, authorize the court to require a deposition reporter to provide a copy of a deposition transcript to a non-noticing party in a pending action for a reasonable fee which, in the absence of an agreement between the interested parties, may be set by the court upon a proper evidentiary showing.

State Comp. Ins. Fund v. WCAB, No. S149257
The California Supreme Court finds that the Legislature intended to require employers to conduct utilization review when considering requests for medical treatment, and employers may not use Labor Code section 4062 as an alternative method for disputing employees' treatment requests.

Wang v. Valverde
Grant of a petition for writ of administrative mandate compelling the DMV to set aside its revocation of plaintiff's class C, noncommercial driver's license is affirmed where the DMV's claim that, as a matter of law, it had authority to revoke the license because it allegedly caught plaintiff cheating on the examination for a class B license, was based on an erroneous interpretation of Vehicle Code section 13359.

Winfred D. v. Michelin North America, Inc., No. B195416
In a personal injury action in which plaintiff sustained severe brain injury when vehicle rolled over after rear tire delaminated, jury verdict for defendant on breach of warranty claim is reversed where: 1) evidence of plaintiff's illicit, intimate conduct was not relevant; 2) to extent evidence was relevant, it should have been excluded as unduly prejudicial in response to plaintiff's motion under Evidence Code section 352; and 3) its admission caused a miscarriage of justice.

DELAWARE

Hoag v. Amex Ins. Co., No. 461, 2007
Dismissal of plaintiff's uninsured-motorist claim as a sanction for his failure to provide discovery as ordered by the trial court was neither too extreme nor an abuse of discretion where the failures were willful and repeated.

DISTRICT OF COLUMBIA

Estate of Coll-Monge v. Inner Peace Movement
In an action for trademark infringement and related claims, summary judgment for defendants-non-profits is reversed in part and remanded where: 1) the district court erred in holding that a non-profit corporation cannot be a related company whose use of the trademark is controlled by the mark's registrant; and 2) there remain disputed issues of fact regarding both the doctrine's applicability in this case, and the capacity in which testator registered the marks with the USPTO.

La Reunion Aerienne v. Socialist People's Libyan Arab Jamahiriya, No. 07-7050
In an interlocutory appeal in a suit arising from the bombing of a French airliner over Africa, denial in part of defendants' motion to dismiss is affirmed, and the remainder of the appeal is dismissed, where: 1) defendants lacked standing to appeal rulings on service of process and possible imposition of punitive damages on individual defendants who were not parties to the appeal; and 2) the district court had subject-matter jurisdiction over the claims under the "terrorism exception" to the Foreign Sovereign Immunities Act.

Pub. Citizen, Inc. v. Rubber Mfrs. Ass'n, No. 06-5304
In a suit challenging a National Highway Traffic Safety Administration (NHTSA) regulation regarding the submission by manufacturers of certain safety-related data, a NHTSA ruling declining to exempt such data from public disclosure is affirmed where the plain language of the enabling statute makes clear that the data is not subject to a blanket public-disclosure exemption under the FOIA.

Williston Basin Interstate Pipeline Co. v. FERC
A petition for review of a FERC order that modified plaintiff's contract with a natural gas distributor is granted where, although the FERC was correct to decide the case under the "just and reasonable" standard of section 5(a) of the Natural Gas Act (NGA), flaws in its reasoning rendered its orders arbitrary and capricious. The case is remanded, but the orders are not vacated as there was a significant possibility that the Commission may find adequate explanation for its actions.

FLORDIA

Florida Bar v. Thompson
In attorney disciplinary proceedings, sanctions are imposed on respondent due to his abuse of the processes of the court. The clerk is directed to reject for filing any future pleadings, petitions, motions, documents, or other filings submitted by respondent, unless signed by a member in good standing of The Florida Bar other than himself.

Frosti v. Creel
A motion for attorney fees and costs made pursuant to Florida's offer of judgment statute need not be denied because the underlying proposal for settlement was filed in the trial court before the judgment was entered.

State Farm Florida Ins. Co. v. Ondis
Pursuant to the holding in Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (2007), Florida's section 627.702(1), referred to as the valued policy law, does not require an insurance carrier to pay the face amount of the policy to an owner of a building deemed a total loss when the building is damaged in part by a covered peril but is significantly damaged by an excluded peril.

Auto-Owners Ins. Co. v. Pozzi Window Co., No. SC06-779
In proceedings involving a certified question from the U.S. Court of Appeals for the Eleventh Circuit, the case is returned to the Eleventh Circuit where: 1) when the Eleventh Circuit certified the question, it did not have the benefit of the decision in United States Fire Insurance Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007), which held that a subcontractor's defective work can constitute an "occurrence" under a post-1986 standard form commercial general liability policy; but 2) the Eleventh Circuit used the terms "defective windows" and "defective installation" interchangeably, creating a determinative issue of fact which required the case to be returned to the Eleventh Circuit. (Revised opinion)

Essex Ins. Co. v. Zota, No. SC06-2031
In a case involving issues surrounding the proper contours of the agency relationship between an insured and a purported insurance broker, the Supreme Court of Florida rules that no language present in sections 626.922 and 627.421, Florida Statutes (2003), precludes a surplus-lines insurer or its direct surplus-lines agent from delivering a copy of the coverage documents to the insured's independent representative-broker instead of directly to the insured.

ILLINOIS

Barth v. State Farm Fire & Cas. Co.
In a suit seeking damages after denial of insurance coverage for a home destroyed by fire, where plaintiff allegedly misrepresented his financial status, judgment for defendant is affirmed as: 1) defendant-insurance company need not prove reasonable reliance or injury under the exclusionary provision at issue because it is distinguishable from an affirmative defense relying on common law fraud; and 2) the materiality instruction given was sufficient to state the correct law to the jury.

Landau v. CNA Fin. Corp.
In a nation-wide class action against defendants for alleged deceptive business practices and resulting damages in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Act), grant of defendant's motion to dismiss on grounds that plaintiff could not sue under the Act is affirmed where: 1) defendant's underlying activities did not create additional circumstances that relate to the alleged misrepresentation; and 2) the majority of circumstances relating to the alleged violation of the Act occurred outside of Illinois.

Standard Mut. Ins. Co. v. Rogers
In a declaratory action where plaintiff alleged that it had no duty to provide uninsured motorist benefits to the defendant, summary judgment for plaintiff is affirmed over defendant's claims that: 1) the circuit court erred when it found that he was not entitled to uninsured motorist benefits under his insurance policy with the plaintiff; and 2) public policy considerations behind the uninsured motorist coverage statute weigh in favor of extending coverage in this case.

NEW YORK

Fleming v. Graham
An employee who sustained multiple facial injuries resulting in scars on his forehead and right upper eyelid during a work-related car accident did not sustain a "permanent and severe facial disfigurement" for purposes of qualifying as a "grave injury" under Workers' Compensation Law section 11 as: 1) "permanency" is negated by defendant's expert reports indicating revisions were possible; and 2) resulting injuries did not rise to the level of "severe" disfigurement.

Fair Price Med. Supply Corp. v. Travelers Indem. Co., No. 105
While an insurer is entitled to contest a claimant's claim as fraudulent, it is required to do so within the rules of the "no-fault system" which impose tight deadlines.

Jones v. Bill , No. 89
For the purposes of the federal Graves Amendment, an action commences on the date of the initial filing of the summons and complaint.

Preserver Ins. Co. v. Ryba, No. 97
In a coverage dispute over a jobsite injury allegedly sustained by a construction worker presenting the question of whether an employer's liability insurance coverage is unlimited or limited to $100,000 as specified in a standard form workers' compensation and employers' liability contract policy, the court of appeals finds that employer's liability is limited under the circumstances of this case where: 1) from a contractual interpretation standpoint, nothing in the underlying policy suggested unlimited liability; and 2) from a legal perspective, none of the applicable state laws provided for an unlimited employers' liability insurance.

VIGILANT INS. CO. V. BEAR STERNS COS., INC.
In an insurance dispute, denial of summary judgment for insurers is reversed where the insured-financial services firm breached a policy provision obligating it to obtain the consent of its liability carriers before settling claims in excess of $5 million.

TEXAS

In re. Jorden
Tex. R. of Civ. Pro. Rule 202 prohibits Rule 202 pre-suit depositions until after the expert report is served in health-care lawsuits.

Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., No. 03-0647
In a coverage dispute, reversal of summary judgment in favor of petitioner and remand of the case to the trial court to determine statutory penalties and attorneys' fees is affirmed where: 1) respondent is an insured under petitioner's insurance policy and was entitled to coverage; 2) petitioner was bound to pay the settlement amount; and 3) the case is remanded for further proceedings on respondent's claims for attorney's fees and prejudgment interest. However, the court of appeals' judgment is reversed where respondent was not entitled to recover attorney's fees and damages under article 21.55 of the Texas Insurance Code.

Frymire Engineering Co. Inc. v. Jomar Int'l, Ltd., No. 06-0755
In a suit to recoup an indemnification payment, alleging damages from respondent-manufacturer's negligence, product liability, and breach of warranty, summary judgment for respondent is reversed and the case remanded where, contrary to the ruling below, petitioner had standing to pursue its claims against respondent under the doctrine of equitable subrogation because the evidence supported its contentions that: 1) it paid a debt primarily owed by respondent; 2) it did so involuntarily, and 3) it sought subrogation in a situation where respondent would be unjustly enriched if petitioner were precluded from pursuing its claims.

Nationwide Insurance Co. v. Elchehimi
In a breach of contract suit stemming from denial of insurance coverage on a claim arising from a collision between an insured vehicle and an axle-wheel assembly, a Court of Appeals reversal of the trial court's grant of summary judgment in favor of the insurance company is reversed where there was no actual physical contact between the insured's vehicle and another motor vehicle per Tex. Ins. Code section 1952.104(3).