Recently in Injury & Tort Law Category

In a tort action arising out of a motorcycle crash, denial of defendant's post-trial motion for judgment as a matter of law is reversed where: 1) a plaintiff may not establish wanton conduct by satisfying the notice or knowledge element of the tort as to one risk -- e.g., a broad generalized risk -- and the second element of indifference of that risk to a differently defined risk -- e.g., the specific risk that caused the accident at issue; and 2) even if plaintiff had put on evidence that defendant knew that a certain part of the motorcycle race at issue was dangerous, plaintiff did not show that defendant was "completely indifferent" to that danger.

Read Wagner v. Live Nation Motor Sports, Inc., 07-3365

Appellate Information

Filed November 13, 2009

Judges

For Appellant:

Paul M. Croker and Richard M. Enochs, Overland Park, KS

For Appellee:

David R. Cooper, Larry G. Pepperdine and Steve R. Fabert, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, KS

In an action for insurance coverage for a malpractice lawsuit, summary judgment for defendant is affirmed where: 1) the alleged acts of malpractice in a letter sent to the malpractice defendant and the lawsuit were "connected by an inevitable or predictable interrelation or sequence of events" for purposes of the policy; 2) the insurance policy treated as one claim all "related wrongful acts"; and 3) because defendant had no legally cognizable duty to defend or indemnify a claim, plaintiffs' bad faith claim could not survive.

Read Berry & Murphy, P.C. v. Carolina Cas. Ins. Co., No. 09-1004

Appellate Information

Filed November 12, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellants:

Steven J. Dawes and Sophia H. Tsai, Light, Harrington & Dawes, P.C.

For Appellee:

Jeffrey A. Goldwater and Perry M. Shorris, Bollinger, Ruberry & Garvey, Chicago, IL

In an action for insurance proceeds arising out of a car accident, summary judgment for defendant-insurer is reversed where the policy's exclusion of resident relatives who own a vehicle from Uninsured Motorist/Underinsured Motorist (UM/UIM) coverage violated Colorado public policy and thus there were issues of fact regarding whether defendant properly advised and offered UM/UIM coverage in an amount equal to the bodily injury limits for that policy.

Read Pacheco v. Shelter Mut. Ins. Co., No. 08-1046

Appellate Information

Filed October 2, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellant:

William Babich, The Law Firm of William Babich, LLC, Denver, CO

For Appellees:

Steven J. Dawes, Light Harrington & Dawes, P.C., Denver, CO

In an action for breach of implied contract and defamation based on false statements allegedly made by plaintiff's former employer on an NASD Form U5 regarding plaintiff's termination, summary judgment for defendant is affirmed where: 1) defendant's statements on the form were substantially true; and 2) plaintiff could not have reasonably expected that, after defendant began investigating plaintiff for forgery, defendant limited its right to terminate his employment through the nonspecific statements of two employees that "nothing bad would happen."

Read Cory v. Allstate Ins., No. 08-2168

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Timothy L. White, Valdez and White Law Firm, Albuquerque, NM

For Appellees:

M. Scott Barnard, Akin Gump Strauss Hauer & Feld LLP, Dallas, TX

John V. Jansonius, Akin Gump Strauss Hauer & Feld LLP, Dallas, TX

In an action based on alleged radiation injuries to residents of a former uranium and vanadium milling town owned and operated by defendants, summary judgment for defendants is affirmed where: 1) plaintiffs' personal-injury claims failed for lack of evidence of factual causation; and 2) plaintiffs' medical-monitoring claims failed for lack of evidence of a "bodily injury" as required by the Price-Anderson Act.

Read June v. Union Carbide Corp., No. 07-1532

Appellate Information

Filed August 21, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

J. Mark Englehart, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.,
Montgomery, AL

For Appellees:

Christopher Landau, Kirkland & Ellis, LLP, Washington, DC, Chicago, IL

In a product liability action, a denial of prejudgment interest to plaintiff is affirmed where the district court employed an improper presumption that plaintiff was not entitled to prejudgment interest simply because its damages estimates were inconsistent, but plaintiff's damages were not sufficiently calculable to serve as a basis for prejudgment interest under Utah law.

Read AE, Inc. v. Goodyear Tire & Rubber Co., No. 07-1526

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Stephen G. Masciocchi, Holland & Hart LLP, Denver, CO

David L. Black, Holland & Hart LLP, Denver, CO

For Appellee:

Roger P. Thomasch, Ballard, Spahr, Andrews & Ingersoll, LLP, Denver, CO

Mary A. Wells, Ballard, Spahr, Andrews & Ingersoll, LLP, Denver, CO

In a personal injury action based on an accident during a bicycle race, summary judgment for defendant is affirmed where none of the race supervisors was assigned to the area right near the accident, but that choice was not grossly negligent in light of the fact that the stretch of road where the accident occurred was relatively straight and wide.

Read Milne v. USA Cycling Inc., No. 07-4247

Appellate Information

Filed August 10, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

Steve Russell, Eisenberg & Gilchrist, Salt Lake City, UT

For Appellees:

Allan L. Larson, Snow, Christensen, & Martineau, Salt Lake City, UT

Richard A. Vazquez, Snow, Christensen, & Martineau, Salt Lake City, UT

In an action for injuries sustained by plaintiff while attempting to inflate the right-front tire on a motor grader that was designed and manufactured by defendant, judgment for defendant is affirmed where the district court did not err in instructing the jury that defendant could not be liable if the machine's condition had "substantially changed" before the accident.

Read Martinez v. Caterpillar, Inc., No. 08-2074

Appellate Information

Filed July 16, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Kevin A. Zangara, Taos, NM

For Appellee:

Jeffrey M. Croasdell, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM

W.T. Womble, Womble, Howell & Croyle, Houston, TX

In a negligence action against a company that led hunting expeditions, the dismissal of the complaint is affirmed where the action was untimely under Wyoming's professional malpractice statute of limitations, and Plaintiffs received adequate notice of the statute of limitations defense and had ample opportunity to respond.

Read Bylin v. Billings, No. 08-8026

Appellate Information

Filed May 27, 2009

Judges

Judge Kelly delivered the opinion of the Court.

Counsel

For Plaintiffs:

Gerard R. Bosch, Law Offices of Jerry Bosch, Wilson, WY

For Defendants:

Amanda K. Roberts, Lonabaugh & Riggs, LLP, Sheridan, WY

Michael C. Steel, Lonabaugh & Riggs, LLP, Sheridan, WY