Recently in Injury & Tort Law Category

In plaintiff's ERISA suit against an insurance company for denying his claim for dismemberment benefits arising from a drunk-driving motorcycle accident, summary judgment for defendant-plan administrator is reversed and remanded for entry of judgment in favor of the plaintiffs where: 1) defendant's decision to deny benefits to the plaintiffs was contrary to the everyday meaning of the word "accidental" as it would be understood by a typical policyholder, and was based almost entirely on a body of largely distinguishable district court cases; 2) plaintiff's injuries were not "highly likely to occur" as a result of his intoxication, in contrast to the injuries that were highly likely to occur under the facts in Lennon; 3) defendant's interpretation of the Plan's provisions amounts to an additional, unwritten exclusion for all drunk-driving injuries, which is not permitted under even the most deferential standard of review; and 4) defendant's denial of coverage based on plaintiff's injuries being non-accidental was unreasonable, arbitrary and capricious.     

Read Kovach v. Zurich American Ins. Co., No. 08-4512

Appellate Information

Argued: July 28, 2009

Decided and Filed: November 13, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  Matthew D. Greenwell, Charles V. Longo Co., LPA, Beachwood, Ohio

For Appellee:  Rebecca B. Jacobs, Ulmer & Berne LLP, Columbus, Ohio

In plaintiff's 42 U.S.C. section 1983 action against two police officers on behalf of the estate of her husband arising from a high speed chase of armed robbery suspects that killed her husband in an automobile crash, summary judgment in favor of the defendant police officers is affirmed where: 1) the estate did not establish a prima facie case of deprivation of the husband's substantive due process rights as officers' actions of trying to apprehend what they reasonably believed to be dangerous criminals do not shock the conscience; and 2) in the alternative, even if the officers' actions did rise to the level of violating the husband's constitutional rights, it was not clearly established at the time of the incident that actions of that sort crossed the constitutional line. 

Read Jones v. Byrnes, No. 08-1889

Appellate Information

Argued: October 9, 2009

Decided and Filed: November 9, 2009

Judges

Per Curium Opinion

Counsel

For Appellant:  Joel B. Sklar, Law Office, Detroit, Michigan.

For Appellee:  Joseph Nimako, Cummings McClorey Davis & Acho, PLC., Livonia, Michigan

In plaintiff-administratrix's case against the officers for the deadly shooting of a fifteen year-old in his bedroom while executing a search warrant of his home, district court's denial of officers' motion for summary judgment based on qualified immunity is reversed and remanded as the record supports the conclusion that the material facts are not genuinely disputed and, as a matter of law, officers' split-second decision to use deadly force in self-defense was not shown to have been objectively unreasonable. 

Read Chappell v. City of Cleveland, No. 08-4456

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge McKeague

Counsel

For Appellant:  Stephen W. Funk, Roetzel & Andress, Akron, Ohio

For Appellee:  Terry H. Gilbert, Friedman & Gilbert, Cleveland, Ohio

In plaintiffs' case against defendants alleging fraudulent scheme of charging customers for services not performed and using that money to give kickbacks to real estate agents, district court's order denying class certification is affirmed and the appeal dismissed as the case is moot because plaintiffs have settled and released all of their claims against defendants.  Present case is distinguishable from previous cases where the Supreme Court has allowed named plaintiffs to appeal denials of class certification even after the named plaintiffs' individual claims had become moot where plaintiffs retained a personal stake in the case because they would be able to shift part of the costs of litigation to the class members if they prevailed in their attempt at class certification.     

Read Pettrey v. Enter. Title Agency, Inc., No. 08-4125

Appellate Information

Argued: August 5, 2009

Decided and Filed: October 27, 2009

Judges

Opinion by Circuit Judge Thapar

Counsel

For Appellant:  David G. Oakley, Kramer & Associates, LPA, Cleveland, Ohio

For Appellee:  Ellyn Tamulewicz Mehendale, Janik LLP, Cleveland, Ohio

In plaintiffs' lawsuit against the US government under the Federal Tort Claims Act, district court's grant of summary judgment in favor of the government is affirmed as the Department of Veterans Affairs (VA) did not owe a duty to the plaintiffs under Michigan law where there is insufficient evidence that plaintiff's husband presented the VA with symptoms of Leishmaniasis such that a reasonable physician should have known that he was infected with the disease, and where there is also insufficient evidence that the VA should have known that the disease was readily transmissible from the husband to his family members, and thus, the plaintiffs were not foreseeable victims of any failure by the VA to diagnose the husband with the disease.  

Brown v. U.S. Dep't of Veterans Affairs, No. 08-2506

Argued: July 30, 2009

Decided and Filed: October 15, 2009

Judges

Opinion by Circuit Judge McKeague

Counsel

For Appellant: Robert Paul Walsh, Battle Creek, Michigan

For Appellee: Steven P. Croley, Detroit, Michigan

In plaintiff-travel agencies' lawsuit under Section 1 of the Sherman Antitrust Act alleging a conspiracy to eliminate the practice of paying base commissions by various airlines, district court's dismissal of the amended complaint is affirmed, as the plaintiffs' claims against United Airlines were discharged in bankruptcy and the claims against the remaining defendants failed to allege sufficient facts to plausibly suggest a prior illegal agreement. 

Read Tam Travel, Inc. v. Delta Airlines, Inc., No. 07-4464

Argued: October 24, 2008

Decided and Filed: October 2, 2009

Judges

Opinion by Circuit Judge Griffin

Counsel

For Appellant:  Joseph M. Alioto, Thomas Paul Pier, Alioto Lawfirm, San Francisco, California

For Appellee:  Peter K. Huston, Latham & Watkins, San Francisco, California, James A. Reeder, Jr., Vinson & Elkins LLP, Houston, Texas, Lee H. Simowitz, Baker & Hostetler, Wahington, D.C. 

In a class action lawsuit by the neighbors of a steel mill owned by United States Steel Corporation, district court's approval of a settlement is affirmed for the most part where: 1) the district court did not abuse its discretion in approving the release of the continuing-nuisance claims as the release is not far-reaching and it is not unfair, unreasonable or inadequate; 2) class-member awards of $300 is not unconscionably low as this objection is based on the misconception that the agreement releases all future tort claims; and 3) district court's approval of the attorney's fees award is vacated and remanded for further explanation. Finally, district court did not err by corralling the extent of an attorney's involvement in the case and the rest of his objections are rejected.     

Read Moulton v. US Steel Corp., No. 08-2311

Appellate Information

Argued: August 4, 2009

Decided and Filed: September 21, 2009

Judges

Opinion by Judge Sutton 

Counsel

For Appellant:  James P. Murphy, Berry Moorman PC

For Appellee:  J. Van Carson, Squire, Sanders & Dempsey LLP.

In an action claiming that Plaintiff suffered injuries by using Defendant's weight loss drug, the dismissal of the action is affirmed where: 1) the claim was barred by Tennessee's statute of repose, which requires that an action be brought within one year after the expiration of the anticipated life of the product; and 2) a class-action settlement concerning the drug did not preclude her from bringing her claim.

Read Montgomery v. Wyeth, No. 08-5701

Appellate Information

Argued: January 14, 2009

Decided and Filed: August 28, 2009

Judges

Opinion by Judge Surhheinrich

Counsel

For Appellant:

Gregory J. Bubalo, Bubalo, Hiestand & Rotman, PLC, Louisville, KY

For Appellees:

Michael T. Scott, Reed Smith LLP, Philadephia, PA

In a medical malpractice action against doctors at a federally funded health care center, dismissal of the complaint is affirmed where the Federal Tort Claims Act required plaintiffs to seek administrative relief as a prerequisite to federal court proceedings.

Read Wilson v. Big Sandy Health Care, Inc., No. 08-5746

Appellate Information

Argued: March 10, 2009

Decided and Filed: August 11, 2009

Judges

Opinion by Judge Daughtrey

Counsel

For Appellant:

H. Michael Lucas, Miller Kent Carter & Michael Lucas, PLLC, Pikeville, KY

For Appellee:

Jeffrey A. Clair, U.S. Department of Justice, Washington, DC

In a personal injury action involving an auto accident, judgment for defendant is affirmed in part where all claims of common-law gross negligence were barred under Michigan law except in certain contexts in which Michigan law exculpated actors for mere negligent conduct; but reversed in part where there was a genuine issue of material fact as to whether plaintiff's negligence exceeded that of defendant's driver.

Read Biegas v. Quickway Carriers, Inc., No. 08-1283

Appellate Information

Argued: June 16, 2009

Decided and Filed: July 24, 2009

Judges

Opinion by Judge Moore

Dissent by Judge Friedman

Counsel

For Appellant:

Vernon R. Johnson, Fieger, Fieger, Kenney, Johnson & Giroux, Southfield, MI

For Appellees:

Michael J. Hutchinson, Hutchinson & Associates, Detroit, MI