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We typically try to give you the highs and lows out of the Tenth Circuit Court of Appeals to lighten the load on your required reading list. Today, we’re recommending that you actually read at least a few pages of this escape clause insurance dispute because it is clear that Judge Neil Gorsuch had fun writing it.

Insurance disputes? Fun? How is that possible?

Maybe because it’s because the litigants are arguing over who should pay when a haunted house worker falls down an elevator shaft. (So ironic, it’s scary.)

Get ready for a flashback to first-year Contracts, with a modern twist.

The Tenth Circuit Court of Appeals ruled recently that a bank and a hospital had formed an enforceable contract regarding the sale of medical equipment in an offer-and-acceptance-based breach of contract dispute.

The Tenth Circuit Court of Appeals ordered the Department of Health and Human Services (HHS) this week to enter into a self-determination contract with the Southern Ute Indian Tribe in New Mexico for the operation of a tribe health center.

The Indian Self-Determination and Education Assistance Act (ISDA) directs the Secretary of HHS, upon request of an Indian tribe, to enter into a contract by which the tribe assumes direct operation of HHS’s federal Indian health care programs for the tribe’s members. Congress provided for these self-determination contracts in an effort to encourage self-government and enhance the progress of Native American people and their communities.

Action to Enjoin New Mexico From Regulating Alcohol on Flights

In US Airways, Inc. v. O'Donnell, No. 09-2271, an action in seeking to enjoin defendant New Mexico state officials from regulating, pursuant to the New Mexico Liquor Control Act (NMLCA), the alcoholic beverage service that airlines provided to passengers on flights, the court reversed summary judgment for defendants where New Mexico's regulatory scheme was impliedly preempted as it fell within the field of aviation safety that Congress intended federal law to occupy exclusively, but the Twenty-First Amendment required a balancing of New Mexico's core powers and the federal interests underlying the Federal Aviation Act.

In Izzo v. Wiley, No. 10-1195, a habeas petition challenging the decision of the Bureau of Prisons (BOP) denying petitioner's eligibility for the Elderly Offender Home Detention Pilot Program, the court affirmed the denial of the petition where the phrase "term of imprisonment to which the offender was sentenced" in 42 U.S.C. section 17541 unambiguously referred to the term imposed by the sentencing court, without any consideration of good time credit.

In Murphy v. Deloitte & Touche Grp. Ins. Plan, No. 09-2028, an action concerning defendant's denial of disability benefits under an ERISA plan, the court vacated summary judgment for defendant where 1) the court's case law prohibited courts from considering materials outside the administrative record where the extra-record materials sought to be introduced related to a claimant's eligibility for benefits; and 2) neither a claimant nor an administrator should be allowed to use discovery to engage in unnecessarily broad discovery that slows the efficient resolution of an ERISA claim.

In US v. Martinez, No. 09-2117, the court of appeals affirmed defendant's sentence for conspiring to defraud the State of New Mexico during the construction of the Bernalillo County Metropolitan Courthouse in Albuquerque, on the grounds that 1) the district court did not err in applying the 2008 version of the Sentencing Guidelines; 2) the district court properly refused to embark upon an "apples and oranges" comparison between the fraudulent proceeds defendant gained from this conspiracy and the contract revenues for services rendered that other co-conspirators previously gained from allegedly bribing an official; and 3) any disparity between defendant's and the official's identical terms of imprisonment was explained by their different plea agreements.

Cahill v. Am. Fam. Mut. Ins. Co., No. 09-1200, involved an action against an insurer asserting state-law causes of action arising out of defendant's alleged failure to comply with Colorado insurance law.  The Tenth Circuit affirmed summary judgment for defendant, on the ground that plaintiff was incorrect in asserting that the relevant limitations periods should have been tolled until defendant informed him that it had not paid benefits required by law.

In US v. Simpson, No. 09-4127, the court of appeals affirmed defendant's drug trafficking conviction, holding that the district court properly denied defendant's motion to suppress narcotics found in his vehicle, because defendant's prior criminal conviction for drug trafficking, his extreme nervousness, and the fact that he provided inconsistent and evasive answers to queries about his travel plans together provided reasonable suspicion to justify extending a legitimate traffic stop to allow further questioning and a canine sniff of his automobile.

Related Resources

• Full Text of US v. Martinez, No. 09-2117
• Full Text of Cahill v. Am. Fam. Mut. Ins. Co., No. 09-1200
• Full Text of US v. Simpson, No. 09-4127

The Tenth Circuit decided two employment cases today, one involving a First Amendment retaliation claim by a public employee, and the other concerning a claim of termination in breach of an employment contract.

In Wallace v. Microsoft Corp., No. 09-3187, plaintiff claimed that defendant wrongfully terminated him in violation of an employment contract allegedly created by e-mails between plaintiff and his supervisor.  The district court granted summary judgment to defendant.

The Tenth Circuit affirmed in part on the basis that no rational jury, viewing the emails and facts set forth in the record in a light most favorable to plaintiff, could infer the existence of an express employment contract, signed by an officer of defendant setting a minimum employment period, and containing language superseding a prior agreement.  However, the court of appeals reversed the judgment in part as to state tort claims, holding that service of process was not untimely because, once his case was removed to federal court, plaintiff then had 120 days in which to effect service.

In Chavez-Rodriguez v. Santa Fe, No. 09-2047, a public employee alleged that she was retaliated against based on her criticism of her employer.  The district court denied defendants summary judgment based on qualified immunity.

The court of appeals affirmed on the ground that the content of plaintiff's speech strongly suggested that plaintiff was communicating with her supervisor pursuant to her employment duties, and thus, that she was not entitled to First Amendment protection.

Related Resources

• Full Text of Wallace v. Microsoft Corp., No. 09-3187
• Full Text of Chavez-Rodriguez v. Santa Fe, No. 09-2047

In an interlocutory appeal of the district court's denial of defendants' motion to dismiss premised on the existence of an arbitration agreement, the appeal is dismissed for lack of jurisdiction where, to properly invoke appellate jurisdiction under the Federal Arbitration Act (FAA), the movant must either explicitly move to stay litigation and/or compel arbitration pursuant to the FAA, or it must be unmistakably clear from the four corners of the motion that the movant seeks relief provided for in the FAA.

Read Conrad v. Phone Directories Co., No. 07-6276

Appellate Information

Filed November 10, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

Ronald W. Taylor, David E. Strecker and Jessica C. Ridenour, Venable, LLP, Baltimore, MD

For Appellee:

Scott F. Brockman, Stanley M. Ward, Woodrow K. Glass, Norman, OK

In an action seeking a declaration that plaintiff held a lease on certain oil-producing land, judgment for plaintiff is affirmed where the production allocation scheme of the unit failed to meet the unambiguous requirements of defendant's lease, and that lease had expired by its terms.

Read Trans-Western Petroleum, Inc. v. US Gypsum Co., No. 08-4120

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Holloway

Counsel

For Appellants:

Jack R. Luellen, Katherine W. Wittenberg and Frederick M. MacDonald, Beatty & Wozniak, P.C., Denver, CO

For Appellee:

Stephen K. Christiansen, Thomas W. Clawson and Sam Meziani, Van Cott, Bagley, Cornwall McCarthy, Salt Lake City, UT