ATLANTA - A letter sent by a dental services provider to an insurer requesting information about the insurer's partial denial of a patient's claim did not constitute initiating an administrative appeal, the 11th Circuit U.S. Court of Appeals affirmed Oct. 23 in an unpublished opinion holding that the provider failed to exhaust his administrative remedies under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.S. § 1001 et seq. (American Dental Association, et al. v. WellPoint Health Networks Inc., et al., No. 11-11208, 11th Cir.; 2012 U.S. App. LEXIS 22007).
NEW ORLEANS - The State of Louisiana on Oct. 24 asked the federal judge overseeing litigation arising from the oil spill in the Gulf of Mexico caused by the April 20, 2010, explosion of the Deepwater Horizon oil rig to set a separate trial date for its economic loss claims against BP PLC, arguing that the company has failed to respond to its claims and that the trial would benefit parties bringing similar claims (In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico on April 20, 2010, MDL 2179, E.D. La.).
ATLANTA - A bank waived its right to compel arbitration when it decided to decline two invitations by a Florida federal court to move to compel arbitration in five putative class suits brought by the bank's customers, the 11th Circuit U.S. Court of Appeals ruled Oct. 26 (Melanie Garcia, et al. v. Wachovia Corporation, et al., No. 11-16029, 11th Cir.). View related prior history, 2011 U.S. Dist. LEXIS 145034.
INDIANAPOLIS - An Indiana trial court did not err in ruling that an insurer owes coverage to its insured for environmental contamination and remediation costs because the policies' pollution exclusions are ambiguous, the Indiana Court of Appeals said Oct. 23 (State Automobile Insurance Co. et al. v. DMY Realty Co. LLP et al., No. 49A05-1109-PL-486, Ind. App.; 2012 Ind. App. LEXIS 531).
PASADENA, Calif. - Because the petition at the center of a First Amendment to the United States Constitution, U.S.C.S. Const. Amend. 1, rights lawsuit is already available for public viewing on the Internet, a Ninth Circuit U.S. Court of Appeals panel on Oct. 23 held that the case in which plaintiffs sought to block the petition's publication was "moot because no effective relief remains available to" the plaintiffs (John Doe #1, et al. v. Sam Reed, et al., No. 11-35854, 9th Cir.; 2012 U.S. App. LEXIS 22046).
NEW ORLEANS - The court-appointed receiver for Stanford International Bank Ltd (SIB) and related companies may stand in the shoes of creditors in seeking to recover nearly $1.6 million in political contributions made to a number of political committees by the Stanford defendants, a Fifth Circuit U.S. Court of Appeals panel ruled Oct. 23 (Ralph S. Janvey, as Court-Appointed Receiver for the Stanford International Bank Ltd., et al., No. 11-10704, 5th Cir.; 2012 U.S. App. LEXIS 22058).
ORLANDO, Fla. - An insurer has a duty to defend and indemnify its insureds in an underlying wrongful death suit alleging that an individual contracted Legionnaires' disease while a guest at an insured hotel because the bacteria that caused the disease are not considered a pollutant under the policy's pollution exclusion and the bacteria or fungi exclusion does not apply to bar coverage, the 11th Circuit U.S. Court of Appeal said Oct. 25 (Westport Insurance Corp. v. VN Hotel Group LLC, et al., No. 11-14883, 11th Cir.; 2012 U.S. App. LEXIS 22187 ).
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Oct. 24 addressed for the first time the ministerial exception in light of Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (132 S. Ct. 694, 702-09 ) and found that its prior three-factor test was no longer valid and that a district court properly dismissed a former church music director's age and disability bias suit in light of the exception (Philip Cannata v. Catholic Diocese of Austin, et al., No. 11-51151, 5th Cir.; 2012 U.S. App. LEXIS 22114).
NEW YORK - A company argues in an Oct. 25 filing in a New York federal court that a shareholder derivative lawsuit brought against its directors and officers should be dismissed because the shareholders failed to show that presuit demand upon the company's board would have been futile (In re SAIC Inc. Derivative Litigation, No. 12-cv-02437, S.D. N.Y.).
BUFFALO, N.Y. - A New York jury on Oct. 23 awarded a widow $3 million for her husband's asbestos-related death, sources told Mealey Publications (Joann H. Suttner, et al. v. A.W. Chesterton Co., et al., No. 2010-12499, N.Y. Sup., Erie Co.).
TALLAHASSEE, Fla. - A Florida tobacco plaintiff who sued as a member of the class created in Engle v. Liggett Group, Inc. (945 So. 2d 1246 [Fla. 2006]) is precluded from seeking punitive damages under negligence and strict liability theories, the state's First District Court of Appeal said Oct. 24, but the majority certified the question to the Florida Supreme Court (Lucille Ruth Soffer v. R.J. Reynolds Tobacco Company, et al., No. 1D11-3724, Fla. App, 1st Dist.; 2012 Fla. App. LEXIS 18385). A complimentary copy of the opinion is available in the pdf attached below.
WASHINGTON, D.C. - A plaintiff's stipulation regarding limiting damages to keep a class suit in state court has no effect on the Class Action Fairness Act of 2005, 28 USCS § 1711 (CAFA) amount-in-controversy determination, The Standard Fire Insurance Co. told the U.S. Supreme Court in an Oct. 22 petitioner brief (The Standard Fire Insurance Company v. Greg Knowles, et al., No. 11-1450, U.S. Sup.). View related prior history, 2012 U.S. LEXIS 5088.
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Oct. 22 affirmed the dismissal of a Fair Credit Reporting Act, 15 U.S.C.S. § 1681, (FCRA) complaint, disagreeing with a consumer's argument that he properly alleged that a collection agency violated the statute by obtaining his credit report without his permission or a permissible purpose (Wayne Norman v. Northland Group Inc., No. 12-10057, 5th Cir.; 2012 U.S. App. LEXIS 21987).
CEDAR RAPIDS, Iowa - An Iowa federal judge on Oct. 24 determined that investors in a hotel that contained mold and other defects were entitled to $12,176,735.22 in damages on their claims that a governor of the hotel fraudulently induced them into the investment and committed violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C.S. §§ 1961 et seq., (Cedar Rapids Lodge & Suits LLC, et al. v. JFS Development Inc., fka JCS Development Inc., et al., No. 09-CV-175, N.D. Iowa; 2012 U.S. Dist. LEXIS 152629).
LOS ANGELES - The Second District California Court of Appeal, Division Two, on Oct. 23 affirmed a trial court's denial of reimbursement of Medicaid benefits to a Medi-Cal beneficiary, saying the beneficiary lacked proper, detailed evidence that he paid for medical services out of pocket (Nikrouz Ghazibayat v. California Department of Health Care Services, No. B239705, Calif. App., 2nd Dist., Div. 2; 2012 Cal. App. Unpub. LEXIS 7679).
DENVER - A unanimous 10th Circuit U.S. Court of Appeals panel issued an opinion Oct. 23 affirming an order dismissing for lack of subject matter jurisdiction a tortious interference claim in a mineral leasehold dispute involving an Oklahoma natural gas field (Optima Oil & Gas Co. v. Mewbourne Oil Co., No. 11-6230, 10th Cir.).
PROVIDENCE, R.I. - A Rhode Island federal magistrate judge assisting in the Kugel mesh multidistrict litigation on Oct. 23 scheduled a mandatory settlement conference for all remaining cases for Nov. 28 and 29 (In Re: Kugel Mesh Hernia Patch Products Liability Litigation, MDL Docket No. 1842, No. 1:07-md-1842, D. R.I.). View related prior history, 2011 U.S. Dist. LEXIS 110026.
DETROIT - An insured voluntarily incurred defense fees and costs of more than $1.3 million and failed to provide the proper notice to its insurer of the underlying action, a Michigan federal judge ruled Oct. 22 (AMI Entertainment Network Inc. v. Zurich American Insurance Co., No. 12-12972, E.D. Mich.; 2012 U.S. Dist. LEXIS 151543).
NEW YORK - Former Goldman Sachs Group Inc. director Rajat Gupta will serve two years in prison, followed by a year of supervised release, a federal judge in New York ruled Oct. 24 in sentencing Gupta for his role in an insider-trading scheme (United States of America v. Rajat Gupta, No. 11-cr-0907, S.D. N.Y.). Subscribers may view the sentencing memorandum and order available within the full article.
SAN FRANCISCO - A homeowner's default on his mortgage, not any procedural errors in naming an authorized agent or the filing of default and foreclosure documents, caused his injury, a federal judge held Oct. 22 in dismissing California unfair competition law (UCL) Cal. Bus. & Prof. Code § 17200, claims (John P. McGough v. Wells Fargo Bank N.A., et al., No. 12-50, N.D. Calif.; 2012 U.S. Dist. LEXIS 151737).
ST. LOUIS - A Missouri appeals panel on Oct. 23 said that an insurance policy does not cover statutory damages for junk faxes and that the insurance company had no duty to defend a class action lawsuit or to indemnify the insured for a $5 million settlement (Columbia Casualty Company v. HIAR Holdings, L.L.C., et al., No. ED98253, Mo. App., E. Dist.; 2012 Mo. App. LEXIS 1334).
ST. LOUIS - Three separate class action complaints filed Oct. 22 in Missouri state court allege that Bayer Healthcare LLC, Pfizer Inc. and Johnson & Johnson place misleading expiration dates on three over-the-counter drugs to generate sales of fresh packages of the nonprescription drugs (Leslie Yoffie v. Bayer Healthcare, LLC, No. 12SL-CC04019, Marjie Levy v. Pfizer Inc., Nol. 12Sl-CC04020, Daniel Raskas v. Johnson & Johnson, No. 12SL-CC04021, Mo. Cir., St. Louis Co.). Subscribers may view the complaint available within the full article.
MINNEAPOLIS - A Minnesota couple's failure to sufficiently plead that they were harmed as a result of a BAC Home Loans Servicing LP representative's statement that a sheriff's sale on their home had been postponed pending a loan modification request was fatal to their lawsuit against Bank of America N.A. and its loan-servicing arm, a federal judge ruled Oct. 24 (Margaret E. Stumm, et al. v. BAC Home Loans Servicing LP, et al., No. 11-3736, D. Minn.; 2012 U.S. Dist. LEXIS 152728).
MIAMI - A Florida federal judge on Oct. 23 concluded that joinder of 50 unrelated John Doe defendants in an Internet-based file-sharing case was improper, granting motions to quash discovery subpoenas filed by a handful of the Does and severing all but one from the copyright infringement case (Aerosoft GmbH v. John Does 1-50, No. 1:12-cv-21489, S.D. Fla.; 2012 U.S. Dist. LEXIS 151977).
WEST PALM BEACH, Fla. - The majority of claims by medical providers alleging that health insurers violated the Employee Retirement Income Security Act (ERISA), 29 U.S.C.S. § 1001 et seq. by granting preapproval for medical procedures and then denying coverage are sufficient to survive the insurers' motion to dismiss, a federal judge in Florida ruled Oct. 22 (Sanctuary Surgical Centre, Inc., et al. v. UnitedHealthcare, Inc., et al., No. 10-81589, S.D. Fla.; 2012 U.S. Dist. LEXIS 151404).