Personal Injury Civil Remedies Civil Procedure

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Personal Injury – Auto – Damages and Stipulation as to Liability

Christ v. Schwartz - Court of Appeal, Fourth Appellate District (August 12, 2016) - In a personal injury action, a defendant may wish to stipulate to liability where there is no real dispute as to who was at fault...more

Eleventh Circuit Finds Insurer Liable for Medicare Lien Notwithstanding Insurer's Efforts to Satisfy the Lien in Settlement, also...

In a case with far-reaching implications, the Eleventh Circuit Court of Appeals issued an opinion concluding that the Medicare Secondary Payer Act (MSP) permits a private insurance company/PART C Medicare Advantage...more

Controversial California Court Decision Significantly Narrows a Crucial Liability Safe Harbor for Website Operators

A recent California court decision involving Section 230 of the Communications Decency Act (CDA) is creating considerable concern among social media companies and other website operators....more

Settling Defendants Beware: Eleventh Circuit Holds Settling Insurer Liable for Failure to Protect Medicare Payments Made by...

Congress created an uproar among personal injury tort defendants and their insurers when it passed the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) less than 10 years ago. The $1,000 per day fine for failure to...more

Medicare Advantage Organizations May Sue For Double Damages Under MSP Act - Humana Medical Plan, Inc. v. Western Heritage Ins....

On August 8, the Eleventh Circuit Court of Appeals decided an issue of first impression in the circuit under the Medicare Secondary Payer (MSP) Act. In sum, the Eleventh Circuit held that a Medicare Advantage Organization...more

Insurance Coverage – Equitable Indemnity Claim by Excess Carrier

Ace American Insurance Company v. Fireman’s Fund Insurance Company - Court of Appeal, Second Appellate District (August 5, 2016) - Where an underlying insurer rejects a settlement offer within its policy limits, and...more

Application of Illinois Dead-Man’s Act Results in Summary Judgment for Defendant

Andice Peacock v. Kathleen Waldeck, Deceased, 2016 IL App (2d) 151043 (August 8, 2016). The Second District Appellate Court affirmed a trial court’s award of summary judgment in favor of a deceased defendant’s special...more

Non-Party Yelp Ordered to Remove Defamatory Reviews

In 2012, attorney Dawn Hassell represented Ava Bird for a period of 25 days related to a personal injury she suffered. Bird expressed dissatisfaction with the representation and Hassell withdrew from the representation....more

4th DCA Confirms Florida’s Adoption of the Daubert Standard for Expert Witness Testimony in Florida State Court Applies...

Florida's Fourth District Court of Appeal recently was the third District Court of Appeal to rule on a lingering question left in the wake of the adoption of 2013 legislative amendments to the Florida Evidence Code regarding...more

Subrogation recovery did not violate the made-whole-rule and was not in bad faith per Wisconsin Sup. Ct.

It is highly unusual to find an insurance bad faith case which stems from an insurance company’s subrogation recovery. On July 6th, Wisconsin’s highest court had such a case, reversing the appellate court and holding that...more

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

The Court overtly accepted the Plaintiff’s expert testimony and criticized well-known defence experts with regard to whether the Plaintiff’s injuries were minor and whether fibromyalgia can be caused by trauma Jones v....more

Defence & Indemnity - June 2016: III. QUANTUM/DAMAGES ISSUES A.

A. Surveillance evidence significant in discrediting Plaintiff in large chronic pain case - Bumstead v. Dufresne, 2015 ABQB 787, per Horner, J. [4186] ...more

Extending the Reach of Octane Fitness Under the Lanham Act **WEB ONLY**

The US Court of Appeals for the Fifth Circuit adopted and applied the Supreme Court of the United States’ rationale for an award of attorneys’ fees in patent cases to a trademark case. In doing so, the Fifth Circuit aligned...more

Defence & Indemnity - June 2016: I. INSURANCE ISSUES

A. Where a party pleads equitable relief (such as rescission, estoppel or relief from forfeiture) with respect to an insurance policy, the claim cannot be heard by a jury Maynard v. Alberta Motor Assn., 2015 ABQB 564,...more

Is the Jury Out on Whether the Jury can be Brought Back In?

The jury renders its verdict. No party objects. The judge thanks the jury for its service, discharges them, and tells them they are free to go. The jury exits, but there’s one problem: the jury’s verdict is internally...more

Eighth Circuit to insurers: Settlement evaluation must constantly adapt to litigation developments

A recent decision of the US Court of Appeals for the Eighth Circuit taught an insurer a costly lesson about trying to avoid extra-contractual liability: Insurers must constantly reevaluate their settlement position throughout...more

Michigan Supreme Court Clarifies That District Court Jurisdiction is Determined by Looking at the “Amount in Controversy” at the...

Michigan district courts have exclusive subject-matter jurisdiction over civil actions when the “amount in controversy” does not exceed $25,000. So what happens if a plaintiff files a lawsuit in district court seeking damages...more

Johnson & Johnson Hit With Two Huge Punitive Awards In Missouri Talcum Powder Litigation

We have previously posted—for example, here, here, here, and here—about the thorny problem of avoiding excessive punishment when multiple plaintiffs seek punitive damages for the same course of conduct.  Johnson & Johnson is...more

The Supreme Court - June 2016 #2

The Supreme Court of the United States issued decisions in three cases on June 9, 2016: - Dietz v. Bouldin, No. 15-458: An automobile accident case went to a jury trial in federal district court. Respondent Hillary...more

Federal District Judges May Recall Discharged Civil Jury To Correct Errors, Supreme Court Holds

Eschewing an old common-law rule for practicality, the U.S. Supreme Court held today in Dietz v. Bouldin, No. 15-458, that federal district judges may recall a civil jury it has discharged to correct errors in certain...more

The Duty to Follow-up Part II: When The Underlying Litigation Changes

Last month, we discussed the duty to follow-up in the context of an offer to settle made by a tort claimant and how neglect of that duty cost an insurer dearly by converting a claim that could have been settled for $25,000...more

Medical Litigation Newsletter - Spring 2016

Reducing Monetary Recovery in “Lost Chance Of [Medical] Recovery” Cases - In medical malpractice cases involving solely “iatrogenic” loss (e.g., harm of or relating to medical treatment), plaintiff bears the burden of...more

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

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