CLARKSBURG, W.Va. - Claims by the Commonwealth of Pennsylvania and a state agency that waste water emissions from three West Virginia companies violated state law are not preempted by the Clean Water Act (CWA), a federal judge in West Virginia ruled Sept. 4 when granting the plaintiffs' motion to remand and denying without prejudice the companies' motion to dismiss (Commonwealth of Pennsylvania, et al. v. Consol Energy Inc., et al., No. 11CV161, N.D. W.Va.; 2012 U.S. Dist. LEXIS 124763).
PHILADELPHIA - A man's monocular vision does not limit any major life activity and therefore is not a disability under the Americans with Disabilities Act (ADA) 42 U.S.C.S. § 12101 et seq., a Pennsylvania federal judge held Sept. 4 in granting a retailer summary judgment on the man's employment discrimination claim (Manuel Mota v. Aaron's Sales and Lease Ownership, No. 11-4298, E.D. Pa.; 2012 U.S. Dist. LEXIS 125079).
HONOLULU - A Hawaii federal judge on Aug. 31 declined to remand a dispute over the rescission of a health care insurance policy to state court, saying the Employee Retirement Income Security Act preempted several of the claims (Robert Poffenbarger, et al. V. Hawaii Management Alliance Association, et al., No. 12-172, D. Hawaii; 2012 U.S. Dist. LEXIS 124416).
GREEN BAY, Wis. - A federal judge in Wisconsin on Aug. 30 refused to award summary judgment to companies seeking to avoid dredging portions of the Lower Fox River to remediate polychlorinated biphenyl (PCB) contamination after finding that although some data underlying studies supporting the U.S. Environmental Protection Agency's decision to require the companies to perform such remediation was missing, it was not fatal to the agency's decision (United States of America, et al. v. NCR Corporation, et al., No. 10-C-910, E.D. Wis.; 2012 U.S. Dist. LEXIS 123461).
CHICAGO - A federal judge in Illinois on Sept. 4 declined to dismiss a count in a Fair Debt Collection Practices Act (FDCPA) 15 U.S.C.S. §§1692 et seq. putative class action, finding that the plaintiff properly stated a claim that the debt the defendants attempted to collect was barred by an Illinois statute of limitations (Jerold S. Rawson v. Source Receivables Management LLC, et al., No. 11-08972, N.D. Ill.; 2012 U.S. Dist. LEXIS 125205).
NEW ORLEANS - In a proposed brief filed Aug. 31 in response to BP PLC's motion for final approval of a $7.8 billion settlement for economic and property damages caused by the 2010 explosion of the Deepwater Horizon oil rig and ensuing oil spill in the Gulf of Mexico, the U.S. government asks that the judge presiding over the multidistrict litigation in the U.S. District Court for the Eastern District of Louisiana reserve making any decisions on liability or natural resource damages until a trial scheduled for January (In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, No. 10-md-2179, E.D. La.). View related prior history, 2012 U.S. Dist. LEXIS 115463.
BLOOMINGTON, Ill. - A woman's evidence of a conspiracy involving her employer and companies manufacturing asbestos-containing products falls short of the "clear and convincing" standard, a divided Illinois court held Aug. 31 in reversing a $17.87 million verdict (Jayne Menssen v. Pneumo Abex Corp., et al., Jayne Menssen v. Honeywell International Inc.. Nos. 4-10-0804, 4-10-0921, Ill. App., 4th Cir.).
NEW ORLEANS - Missouri plaintiffs seeking to recover the costs of Vioxx prescriptions have reached a settlement with Merck & Co. Inc. of their class action, according to a Sept. 1 motion filed in the Fifth Circuit U.S. Court of Appeals (In Re: Vioxx Products Liability Litigation, No. 12-30560, 5th Cir.). View related prior history, 2011 U.S. App. LEXIS 23991.
BOSTON - The limitations period for filing a legal claim provided in a disability plan bars a participant's claim for reinstatement of benefits under the Employee Retirement Income Security Act, the First Circuit U.S. Court of Appeals affirmed Aug. 30, finding that there was no basis for tolling the plan's limitations period (Luis Arturo Santaliz-Rios v. Metropolitan Life Insurance Co., No. 11-1279, 1st Cir.; 2012 U.S. App. LEXIS 18446).
ST. PAUL, Minn. - A class of hourly production employees at a meat-processing plant did not perform any compensable work for which they were not compensated, the Eighth Circuit U.S. Court of Appeals ruled Sept. 4, upholding a trial court ruling (Dimas Lopez, et al. v. Tyson Foods, Inc. No. 11-2344, 8th Cir.; 2012 U.S. App. LEXIS 18564).
PHILADELPHIA - Wyeth on Aug. 30 failed in its bid to stop two plaintiffs from pursuing claims that their use of the company's former Pondimin and Redux diet drugs caused them to develop primary pulmonary hypertension (PPH) (In Re: Diet Drugs [Phentermine/Fenfluramine/Dexfenfluramine] Products Liability Litigation, MDL Docket No. 1203, No. 2:99-20593, Valarie Farmer v. Wyeth Pharmaceuticals Inc., et al., Jamie D. Cheek v. Wyeth, et al., No. 11-20001, E.D. Pa.).
SEATTLE - An employment practices insurer acted in bad faith when it breached its duty to defend underlying claims against its insured, a Washington federal judge ruled Aug. 31, granting the insured's motion for partial summary judgment on its bad faith counterclaim (Travelers Casualty and Surety Company of America v. Spectrum Glass Company Inc., No. C11-1324-JCC, W.D. Wash.; 2012 U.S. Dist. LEXIS 124620).
NEW YORK - A federal judge in New York on Aug. 30 dismissed several claims against Fannie Mae, its former officers, former directors and underwriters including Goldman, Sachs & Co. in a multidistrict litigation alleging that they misled investors about their subprime mortgage risk management (In re: Fannie Mae 2008 Securities Litigation, No. 08-7831, No. 09-MDL-2013 [Comprehensive Investment Services Inc. v. Daniel H. Mudd, et al., No. 09-6102; Edward Smith v. Federal National Mortgage Association, et al., No. 10-2781; Liberty Mutual Insurance Co., et al. v. Goldman, Sachs & Co., No. 10-9184], S.D. N.Y.).
TAMPA, Fla. - Underlying allegations against an accounting firm insured include negligent conduct in the performance of professional services and, therefore, trigger a professional liability insurer's duty to defend, a Florida federal judge ruled Sept. 4 (Philadelphia Indemnity Insurance Company v. Stephen H. Hamic, et al., No. 8:12-cv-829-T-26EAJ, M.D. Fla., Tampa Div.; 2012 U.S. Dist. LEXIS 125180).
MADISON, Wis. - A reinsurer argued in a Wisconsin federal court on Aug. 31 that its reinsured violated Wisconsin's statute of limitations by not filing its breach of contract suit sooner than six years after first issuing a reinsurance billing to the reinsurer (Dairyland Insurance Company v. OneBeacon Insurance Company as successor to General Accident Insurance Company of America, No. 12-cv-00391, W.D. Wis.). Subscribers may view the brief available within the full article.
OXFORD, Miss. - The estate of a deceased welder who died of cancer after allegedly being exposed to hexavalent chromium in welding fumes persuaded a U.S. District Court for the Northern District of Mississippi magistrate judge to deny a motion by the decedent's employer for a protective order that would have blocked deposition of company representatives and the production by the company of documents; Magistrate Judge S. Allan Alexander issued the order on Sept. 4 (Pinnacle Trust Co. v. Babcock & Wilcox Power Generation Group Inc., et al., No. 11-2, N.D. Miss.). Subscribers may view the order available within the full article.
NEW YORK - The trustee in the Securities Investor Protection Act (SIPA)15 U.S.C.S. § 78aaa litigation related to the Chapter 11 bankruptcy of MF Global Inc. (MFGI), a subsidiary of MF Global Holdings Ltd. (MFGH), on Sept. 3 filed a brief in the U.S. Bankruptcy Court for the Southern District of New York arguing that he should be given the authority to assign claims to customer representatives (In Re: MF Global Inc., No. 11-2790, Chapter 11, S.D. N.Y. Bkcy.).
BATON ROUGE, La. - A Louisiana appeals panel on Sept. 4 affirmed summary judgment for two defendants in a personal injury case involving an injury sustained on a construction site, agreeing that the property owner and general contractor did not have responsibility for allegedly dangerous temporary steps built by a subcontractor (John W. Sasser III, et al. v. Timothy J. Wintz, et al., No. 2011 CA 2022, La. App., 1st Cir.; 2012 La. App. LEXIS 1101).
NEW YORK - The U.S. trustee in the Chapter 11 bankruptcy proceeding of Patriot Coal Corp. on Aug. 31 filed a brief in the U.S. Bankruptcy Court for the Southern District of New York contending that the current venue for bankruptcy is improper and should be changed (In Re: Patriot Coal Corporation, No. 12-12900, Chapter 11, S.D. N.Y. Bkcy.). Subscribers may view the brief available within the full article.
NEW YORK - The overlap between World Trade Center Properties LLC's insurance recovery and its potential tort recovery presents issues of fact requiring a trial, a New York federal judge ruled Sept. 4, rejecting the aviation defendants' motion to credit $4.09 billion in insurance payments against potential tort recoveries in a lawsuit arising from the Sept. 11, 2001, terrorist attacks (In Re September 11 Litigation, Nos. 21 MC 101, S.D. N.Y.). Subscribers may view the opinion available within the full article.
DETROIT - An insurance agency's agents satisfied their duty to ensure that an insurance contract properly addressed an insured's needs, on the basis of the information that was provided, a Michigan appeals panel ruled Aug. 30, affirming summary disposition on a negligence claim against the agency (Holly Deremo, et al. v. TWC & Associates Inc. d/b/a Winter Insurance, No. 305810, Mich. App.; 2012 Mich. App. LEXIS 1698).
CORPUS CHRISTI, Texas - A Texas appeals panel on Aug. 30 upheld a trial court's decision to confirm an arbitrator's ruling in a construction defects case involving issues with a newly constructed home, concluding that the plaintiffs' arguments "do not meet their burden to show that the arbitrator exercised bad faith or failed to exercise honest judgment" ((Juan Villarreal, et al. v. Albert J. Hanks, No. 13-11-00700-CV, Texas App., 13th Dist.; 2012 Tex. App. LEXIS 7357).
PORTLAND, Maine - There is a possibility of coverage under a comprehensive general liability insurance policy for damage allegedly caused by an insured's faulty workmanship, a Maine federal judge ruled Aug. 30, finding that the insurer has a duty to defend (Boothbay Harbor Shipyard LLC v. North American Specialty Insurance Co., No. 12-005, D. Maine; 2012 U.S. Dist. LEXIS 123525).
DENVER - A plaintiff's toxicologist can testify that connection of a water filtration system to a home's sewer line caused a man to develop Crohn's disease and his son to contract hepatitis A, a federal judge in Colorado held Aug. 31 (Nick and Roxanne Cattaneo v. Aquakleen Products, No. 10-cv-02852-RBJ-MJW, D. Colo.; 2012 U.S. Dist. LEXIS 124063).
TOPEKA, Kan. - The Kansas Court of Appeals on Aug. 31 affirmed summary judgment for a municipality named as the defendant in a workplace injury action, agreeing that the condition of a water pipe should have been obvious to an experienced water line worker (Kevin G. Didde v. City of Chapman, No. 106,090, Kan. App.; 2012 Kan. App. Unpub. LEXIS 732).