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Compensating “Disgust”: Psychoanalyzing Emotional Distress Claims Involving Food Products

You’re a sheriff’s deputy and you’re hungry. You stop at the local Burger King drive-thru and order a Whopper with cheese. You often eat five meals a day—frequently at fast food restaurants—because you work night shifts. ...more

Defence & Indemnity - April 2016: III. QUANTUM/DAMAGES ISSUES: B.

B. In assessing the quantum for loss of future income earning capacity, negative contingencies must be supported by evidence. Sunner v. Rana, 2015 BCCA 406, per Chaisson, J.A. [4178]...more

Eighth Circuit Holds Insureds’ Miller-Shugart Agreement Breached Policy’s Cooperation Clause

In its recent decision in American Family Mut. Ins. Co. v. Donaldson, 2016 U.S. App. LEXIS 7499 (8th Cir. Apr. 26, 2016), the United States Court of Appeals for the Eighth Circuit, applying Minnesota law, had occasion to...more

Social Media Defamation: the #creeper decision

A dispute between suburban neighbours escalated and spilled over into social media when one of the neighbours vented on Facebook. The Facebook posts suggested that the plaintiff was a “nutter” and a “creep” who deployed a...more

The Class Action Chronicle - Spring 2016

This is the 11th edition of The Class Action Chronicle, a quarterly publication that provides an analysis of recent class action trends, along with a summary of class certification and Class Action Fairness Act rulings issued...more

Paul Watler Speaks: Texas Supreme Court Opinions Firm Up Anti-SLAPP Rights For Online Journalists

Online journalists and scholars from the Americas and around the globe recently gathered at the University of Texas at Austin to assess the state of internet-based journalism. The keynote address of the 16th annual...more

Unvacating Arbitration Awards: Quarterbacks and Car Accidents

The Second Circuit reminded us yesterday that judicial review of arbitration awards is “among the most deferential in the law.” And when district courts are not sufficiently deferential, their decisions are likely to be...more

Erin Andrew’s Suit Shows Risks to Businesses from Intentional Tortfeasors

Sportscaster Erin Andrew’s suit against a Nashville Marriott and the stalker who the hotel let check-in to a room next to her has made national headlines. When the jury awarded her a total of $55 million damages, with about...more

Supreme Court Limits ERISA Reimbursement Rights: Insurers Will Need to be Diligent

On January 20, 2016, the United States Supreme Court held that an ERISA plan could not satisfy its reimbursement rights from a participant’s general assets. ERISA plans’ reimbursement rights are now so limited that...more

Federal District Court Slashes Punitive Award In Hip Implant Case

A couple of months ago, I did a post about the post-trial motions in the first trial arising out of alleged defects in Wright Medical Technology’s hip implant device. On April 5, the district court resolved the motions,...more

Smooth Operators: Seventh Circuit Untangles Objections and Affirms Settlement of Hair Product Class

The Seventh Circuit Court of Appeals affirmed a class settlement over objection in a case involving a hair-smoothing product (“the Smoothing Kit”) that allegedly destroyed users’ hair and burned their scalps. Plaintiffs sued...more

The ERISA Litigation Newsletter - March 2016

Editor’s Overview - This month we review the U.S. Supreme Court’s decision in Montanile v. Board of Trustees of National Elevator Industries Health Benefit Plan where the Supreme Court considered the scope of...more

Time to Review Plan Subrogation Procedures

Most self-funded ERISA medical plans provide that participants who have been injured by other people (think car accidents) must reimburse the plan if the participant recovers from the other person for those injuries. In order...more

Defence & Indemnity - February 2016: IV. Practice Issues: A. Costs per Schedule C can be increased for inflation and subjected to...

RVB Managements Ltd. v. Rocky Mountain House, 2015 ABCA 304, per Paperny, Watson, Slatter JJ.A. I. FACTS AND ISSUES - This was a $25 million tort claim against a municipality. It culminated in a long, 27-day trial...more

Defence & Indemnity - February 2016: A passenger who grabs the steering wheel is involved in the “use” or “operation” of the...

Felix v. Insurance Corporation of British Columbia, 2015 BCCA 394, per Bennett J., Saunders J. and Stromberg-Stein J. - I. FACTS AND ISSUES - The plaintiff (“Felix”) was driving her car with her intoxicated...more

Defence & Indemnity - February 2016: Insurance Issues: Portage LaPrairie Mutual Insurance Company v. Sabean, 2015 NSCA 53, per...

Future CPP benefits fall under the definition of “any policy of insurance” and are therefore deductible from amounts payable by SEF 44 insurers - Portage LaPrairie Mutual Insurance Company v. Sabean, 2015 NSCA 53, per...more

Montanile v. Board of Trustees: A New Model for Recovery

At times, money may be owed back to the benefit plan which paid benefits to or on behalf of a participant. For example, most health plans include a right to recover from a third party recovery amounts the plan paid. In the...more

Actual knowledge is a prerequisite to liability: Houston Appeals Court reiterates Chapter 95’s central role in suits against...

The Fourteenth Court of Appeals in Oiltanking Houston, L.P. v. Delgado, No. 14-14-00158-CV, 2016 WL 354439 (Tex. App.—Houston [14th Dist.] Jan. 28, 2016, no pet. h.) has reversed a $21 million verdict against a property owner...more

Montanile, Amgen, Tackett & Moen: Four Important Employee Benefits Cases to Kick Off 2016

The year 2016 has only just started, and we have already seen several important court decisions related to employee benefit plans and the Employee Retirement Income Security Act of 1974, as amended (ERISA). This Client Alert...more

Murray v. Farmers Insurance Company

Murray v. Farmers Insurance Company Arizona Court of Appeals, Division Two, January 19, 2016 - Court of Appeals Addresses Insurance Agent Negligence Claim; Plaintiff May Claim Emotional Damages - For years, the...more

Two Claimants, One Check: A Common Maneuver That Can Get You Sued…Again

In 2009, Javier Escobar was injured in an auto accident that caused him to undergo extensive medical care at the Santa Clara Valley Medical Center - a hospital owned and operated by the County of Santa Clara (the “County”)....more

Supreme Court Says No Subrogation Claims from Health Plan After Participant Spends Settlement

On January 20, the Supreme Court released its decision in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, concluding that although health plan fiduciaries can generally seek subrogation...more

Supreme Court Interprets ERISA to Limit Remedies Available to Plans to Subrogate and Recover Overpayments

Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan is the fourth decision by the U.S. Supreme Court addressing the subrogation rights of self-insured ERISA-covered health plans. Three...more

ERISA Plans Should Act To Reinforce Reimbursement Rights In Light Of Recent SCOTUS Decision

Group health plan administrators should take actions to address the recent U.S. Supreme Court decision holding that an ERISA plan cannot enforce its equitable lien, which had been established through the plan’s reimbursement...more

Product Liability Update: January 2016

Supreme Court Holds Defendant Cannot Moot Putative Class Action by Making Unaccepted Offer of Judgment for Complete Relief to Representative Plaintiff - In Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 U.S. LEXIS 846 (S....more

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