Case Summaries

Injury & Tort Law

[07/03] Crowley Marine Servs. Inc. v. Maritrans Inc.
In an action arising out of the collision of plaintiff's tug boat with defendants' oil tanker, a district court's reallocation of fault in the matter is affirmed where: 1) the district court did not err in considering the coordinated nature of the tug escort, the tug boat's violations of Rules 5 and 17(b), or the negligence of both plaintiff and the tug's captain; and 2) it did not err in apportioning 70% of the responsibility for the collision to the tug boat.

[07/03] Sherman v. Winco Fireworks, Inc.
In an action arising from an accident with fireworks, order granting defendant-fireworks manufacturer leave to amend and remand for a new trial on the plaintiffs' failure-to-warn claim in addition to plaintiff husband's pendent consortium claim is reversed in part where: 1) the district court did not apply the good-cause standard in ruling on motion to amend; 2) and the district court abused its discretion in allowing the amendment; 3) and the error was not harmless as it significantly affected plaintiffs' claims.

[07/02] Anderson v. Commerce Construction Services, Inc.
In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] Allen v. Brown Clinic, P.L.L.P
In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina
In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

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Contracts

[07/03] Gen. Elec. Capital Corp. v. Future Media Prods., Inc.
In an appeal brought by an oversecured creditor in a bankruptcy matter, an order denying the creditor default interest and attorney's fees is reversed and remanded where: 1) the bankruptcy court improperly applied the circuit court's rule from In re Entz-White Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), to the facts of this case; and 2) the bankruptcy court should apply a presumption of allowability for the contracted for default rate, "provided that the rate is not unenforceable under applicable non-bankruptcy law."

[07/03] United Steel, Paper & Forestry, etc. v. TriMas Corp.
In an action to compel arbitration under the Labor-Management Relations Act (LMRA) arising out of the parties' dispute over a neutrality agreement, summary judgment for union is affirmed where the district court correctly: 1) found that the dispute was covered by the language of the arbitration clause; and 2) left consideration of certain extrinsic evidence to the arbitrator.

[07/02] City of Geneseo v. Utilities Plus
In an action to recover damages from corporate defendant based on claims of contractual breach, unjust enrichment, promissory estoppel, and fraud, summary judgment for defendant is affirmed where: 1) defendant's president was found to lack actual authority to enter a binding contract on the company's behalf; 2) the doctrine of apparent authority, which was limited under state laws, did not alternatively create a contract to be enforced; and 3) plaintiff had no basis to recover damages under alternative principles of contractual remedies.

[07/01] G.K. Alan Assoc., Inc. v. Lazzari
In a civil lawsuit involving defendant's alleged acts of fraud and embezzlement, a ruling finding that summary judgment for either party was precluded is affirmed where inquiries as to defendant's actual intent for the wrongdoings charged, and plaintiff's knowledge of defendant's ongoing fraud or embezzlement practices, were factual issues properly resolved at trial.

[07/01] In the Matter of Fiveco, Inc. v. Haber
In the context of a party commencing a proceeding to permanently stay arbitration after the 20-day limitations period for objecting to arbitration under CPLR 7503(c), such petitions are time-barred unless the basis of a party's objection falls within the exception set forth in Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264 [1982]). That exception does not apply, however, when an arbitration provision found within a contract prevents finding that the parties never agreed to arbitrate.

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Trademark

[06/18] Boston Duck Tours, LP v. Super Duck Tours, LLC
In a trademark infringement dispute wherein the district court granted a preliminary injunction enjoining defendant from using its design mark and using the phrase "duck tour" in its trade name, judgment is reversed and remanded where the district court: 1) committed clear error by finding the phrase "duck tour" non-generic, and thereafter accorded it excessive weight in conducting its likelihood of confusion analysis on defendant's trade name; and 2) clearly erred in finding a likelihood of confusion between parties' design marks wherein the greatest similarity between them, an image of a cartoon duck in water, was of minimal significance due to its highly descriptive nature.

[06/13] Natural Answers, Inc. v. Smithkline Beecham Corp.
In a trademark infringement case involving claims against defendants for the advertisement of certain health products, summary judgment for defendants is affirmed where: 1) the record unequivocally demonstrated that plaintiff did not own a valid trademark interest for claims of infringement brought under the Lanham Act; 2) plaintiff did not suffer injury for prudential standing to assert a false advertising claim under the Lanham Act; and 3) in light of plaintiff's insufficient interest and lack of judicial standing, plaintiff's claims also failed under alternative common law theories which require elements plaintiff could not prove.

[06/11] Derek Andrew, Inc. v. Poof Apparel Corp.
An award to plaintiff of $15,000 in statutory damages under the Copyright Act, along with nearly $300,000 in attorney's fees, is reversed and remanded where: 1) the first act of infringement in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under 17 U.S.C. section 412; 2) defendant began its infringing activity before the effective registration date, and it repeated the same act after that date each time it used the same copyrighted material; 3) thus, the award of statutory damages was error; and 4) the district court may have erred as to the attorney's fees award.

[05/29] UT Lighthouse Ministry v. Found. for Apologetic Info. and Research
In an action claiming trademark infringement, unfair competition, and cybersquatting, summary judgment for defendant is affirmed where: 1) trademark infringement and unfair competition claims failed as plaintiff did not show that "Utah Lighthouse" was protectable, that defendant's use was in connection with any goods or services, and that defendant was likely to cause confusion among consumers as to the source of goods sold on its online bookstore; 2) defendant lacked a bad faith intent to profit from the use of plaintiff's trademark in several domain names under the Anti-Cybersquatting Protection Act (ACPA); and 3) defendant's website met safe harbor conditions of the ACPA since it was a parody.

[05/29] Stoller v. Pure Fishing, Inc.
In a trademark dispute, default judgment against plaintiff on a counterclaim and dismissal of his appeal for failure to prosecute is affirmed where: 1) the arguments made in plaintiff's Rule 60(b) motion could have been addressed by the court of appeals in the underlying appeal that was dismissed for failure to prosecute; 2) the district court's one line order denying his motion did not violate Circuit Rule 50 since the court's reasoning was clear from the record and a brief statement; and 3) plaintiff's appeal of a determination that he was a vexatious litigant was not a proper issue in the present appeal as the court's decision on the underlying merits was not before the appeals court.

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Elder Law

[06/30] Sanders v. Lawson
The attorney's fees provision of the Elder Abuse Act does not authorize the award of trustee fees as costs.

[05/13] Cao v. Commonwealth of Puerto Rico
In an action wherein plaintiff sought recovery under 42 U.S.C. section 1983 for alleged constitutional violations along with several state law causes of action after she was removed from her home, made to undergo a psychological evaluation, and placed in a state institution for the elderly, dismissal of plaintiff's complaint is affirmed where: 1) the district court properly dismissed plaintiff's section 1983 claim as untimely; and 2) with no federal cause of action remaining, the district court acted within its discretion in declining to exercise supplemental jurisdiction over remaining state law claims.

[05/05] Miller v. Am. Airlines, Inc.
In a suit against American Airlines under the Age Discrimination in Employment Act (ADEA), summary judgment for defendants is affirmed where: 1) a collective bargaining agreement did not require that plaintiffs be offered positions of comparable pay past the retirement age; 2) a claim, that a supplement to the collective bargaining agreement governing the retirement of flight engineers was facially discriminatory, was not properly raised before the EEOC.

[03/11] Budnick v. Town of Carefree
In an action raising, inter alia, a claim that defendant-town violated the Fair Housing Amendments Act of 1988 (FHAA) by denying plaintiffs a Special Use Permit (SUP) to build a multi-level continuing-care retirement community in the town, summary judgment against plaintiffs on the FHAA claim is affirmed where plaintiff failed to establish a discrimination claim under any of the theories of disparate treatment, disparate impact, or a failure to make reasonable accommodations. Potential residents of a retirement community do not presently qualify as disabled under the FHAA simply because some of them will become disabled as they age.

[03/10] Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC
In an action brought by an insurer seeking a declaratory judgment regarding its duties to defend and indemnify defendants against claims in an Arkansas state court action, summary judgment determining such duties is affirmed where the district court did not err by deciding that: 1) the only claim in the underlying lawsuit covered under insurer's policy was an estate's breach of contract claim against nursing home facility owner; 2) insurer had a duty to defend and indemnify owner on that claim and therefore also a duty to defend it on all of the estate's claims against it; and 3) insurer had no duty to defend or indemnify appellant-employee of the nursing home's management company.

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Dispute Resolution & Arbitration

[07/03] United Steel, Paper & Forestry, etc. v. TriMas Corp.
In an action to compel arbitration under the Labor-Management Relations Act (LMRA) arising out of the parties' dispute over a neutrality agreement, summary judgment for union is affirmed where the district court correctly: 1) found that the dispute was covered by the language of the arbitration clause; and 2) left consideration of certain extrinsic evidence to the arbitrator.

[07/01] In the Matter of Fiveco, Inc. v. Haber
In the context of a party commencing a proceeding to permanently stay arbitration after the 20-day limitations period for objecting to arbitration under CPLR 7503(c), such petitions are time-barred unless the basis of a party's objection falls within the exception set forth in Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264 [1982]). That exception does not apply, however, when an arbitration provision found within a contract prevents finding that the parties never agreed to arbitrate.

[07/01] Espericuenta v. Shewry
In an action to recover damages arising from an automobile accident wherein a lien was asserted against the settlement proceeds to recover certain medical payments, an order denying a motion to extinguish or strike the lien imposed is affirmed where: 1) there had already been a judicial allocation of the medical expenses portion of the settlement in the order approving the victim's compromise; and 2) thus, there was no basis for modifying the order.

[06/30] Waltrip v. Kimberlin
In a priority dispute between competing liens, by a judgment creditor and debtor's attorney, over settlement proceeds, judgment finding the judgment lien had priority over the attorney lien is reversed and remanded where: 1) the creditor had a lien which did not cover commercial tort claims while the settlement proceeds at issue stemmed from commercial tort claims; 2) the attorney lien was created by the retainer agreement between plaintiffs and counsel, and it was created before creditor filed a notice of lien in the pending action; and 3) the notice of lien did not relate back to prior liens, as those liens covered different property.

[06/30] Ontiveros v. DHL Express (USA), Inc.
In a lawsuit against plaintiff's employer alleging claims of sex discrimination, harassment, and retaliation, denial of defendant's motion to compel arbitration pursuant to an arbitration agreement is affirmed where the agreement, contained within a contract of adhesion, was unconscionable, and hence unenforceable.

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Probate Trusts

[06/26] Murphy v. Murphy
A probate court judgment finding plaintiff entitled to a constructive trust over one-half interest of decedent's real and personal property existing on the date of his death is reversed on collateral estoppel grounds where: 1) prior to the decedent's death, a probate court previously issued an order on behalf of decedent, authorizing the decedent's conservator to execute a living trust and pour-over will to implement an estate plan which effectively disinherited plaintiff; and 2) a careful balance of all the relevant factors supported that principles of collateral estoppel should serve to bar plaintiff's subsequent causes of action.

[06/25] Safai v. Safai
In a case involving a dispute over whether a minor's actions triggered the "no contest clause" contained in a trust instrument, the court of appeals finds that the minor's act of signing the "minor's consent" portion of an ex parte application for appointment of guardian ad litem did not equate to "voluntarily" participating in a trust contest, an act which a minor is legally incapable of pursuing by their own volition.

[06/24] IN Funeral Directors Ins. Trust v. Benefit Actuaries, Inc.
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.

[06/20] Talbot v. Hustwit
Judgment entered against defendants on a guaranty agreement after lender foreclosed on real property securing a loan made to a trust structured by defendants is affirmed where: 1) case law has uniformly held the requirements for a deficiency judgment under Code of Civil Procedure 580a inapplicable to guarantors; and 2) considering the manner in which defendants structured the trust arrangement to detach from debts owed by the trust, there was ample basis for finding them not principal obligors to the loan, but true guarantors.

[05/15] Miller v. Campbell
In a fees dispute brought by a law firm against the executor of an estate after the probate court refused to award a category of fees associated with services rendered for the executor's personal matters, grant of executor's motions in limine to exclude all evidence, resulting in dismissal of the case, is reversed where: 1) the doctrines of res judicata and collateral estoppel did not apply to bar the law firm's claim of fees against the executor personally; and 2) in light of the evidence, the trial court erroneously ruled that the evidence was insufficient, as a matter of law, to support the law firm's quantum meruit claim.

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