PHILADELPHIA - A federal judge in Pennsylvania on Nov. 21 rejected an insurer's motion to dismiss in an insurance breach of contract and bad faith lawsuit for failure to join an indispensable party, allowing an insured to amend his complaint to add his wife as a plaintiff (William Koepke v. Allstate Vehicle & Property Insurance Co., No. 16-4633, E.D. Pa.; 2016 U.S. Dist. LEXIS 161112).
FORT WORTH, Texas - A Texas federal judge on Nov. 18 withheld ruling on a plaintiffs' motion for conditional certification and preliminary approval of an $8.8 million Employee Retirement Income Security Act class action settlement, saying that he did not have enough information to conclude that the proposed settlement should be approved as being fair, reasonable and adequate to the members of the proposed class (Salvador Ortiz, et al. v. American Airlines Inc., et al., No. 4:16-cv-151, N.D. Texas; 2016 U.S. Dist. LEXIS 160588).
SELMA, Ala. - An Alabama federal judge on Nov. 18 denied a Prudential Insurance Co. insured's motion to remand to state court an action alleging that the insured failed to pay any policy benefits, saying that his state law claims are completely preempted by the Employee Retirement Income Security Act, which authorizes a plan participant or beneficiary to bring a civil suit "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan" (Marion McIntosh v. Prudential Insurance Co., No. 16-0523, S.D. Ala.; 2016 U.S. Dist. LEXIS 159869).
CHICAGO - An Illinois federal judge on Nov. 21 granted defendants' motions to dismiss a lawsuit alleging that a pension fund, its trustees and its lawyers conspired with each other to have the fund retain and convert the contributions made on a plaintiff's behalf, saying that the plaintiff's state law conversion claim is preempted by Employee Retirement Income Security Act Section 514 and that his conspiracy claim is untenable in light of controlling precedent (John P. Cooney v. Trustees of the Will County Carpenters Local 174 Pension Fund, et al., No. 13-cv-8819, N.D. Ill.; 2016 U.S. Dist. LEXIS 160603).
SEATTLE - A federal judge in Washington on Nov. 18 granted in part and denied in part competing motions for summary judgment in an insurance breach of contract and bad faith lawsuit, ruling that although an insurer breached its contract with its insureds under a homeowners insurance policy, its reading of the policy was reasonable (Noah Baskett, et al. v. Country Mutual Insurance Co., No. 15-1317, W.D. Wash.; 2016 U.S. Dist. LEXIS 160449).
ROCK ISLAND, Ill. - An Illinois federal judge on Nov. 21 granted a motion to enforce the terms of an agreement to settle an Employee Retirement Income Security Act lawsuit and ordered defendant Midwest Underground Inc. to pay the plaintiff plumber union funds $82,707 (Plumbers and Pipefitters Local Union No. 25 Welfare Fund, et al. v. Midwest Underground Inc., No. 4:15-cv-04144, C.D. Ill.; 2016 U.S. Dist. LEXIS 160599).
FRESNO, Calif. - An insurer is entitled to summary judgment in an insurance breach of contract and bad faith lawsuit, a federal judge in California ruled Nov. 18, because California law bars insurers from indemnifying their insureds for punitive damages awards (Paul Evert's RV Country Inc., et al. v. Universal Underwriters Insurance Co., et al., No. 15-0124, E.D. Calif.; 2016 U.S. Dist. LEXIS 160519).
PHILADELPHIA - A Pennsylvania federal judge in an opinion filed Nov. 18 denied a plaintiff's motion to remand a case alleging improper denial of claims under an Employee Retirement Income Security Act-qualified health plan to state court, saying that claims for breach of contract and breach of fiduciary duty are properly brought under ERISA (Eric A. Shore P.C. v. Independence Blue Cross, et al., No. 16-5224, E.D. Pa.; 2016 U.S. Dist. LEXIS 160022).
PHOENIX - A federal judge in Arizona on Nov. 21 denied cross-motions for partial summary judgment on breach of contract claims in a suit over indemnification for cleanup from contamination from underground storage tank (UST) leaks, finding that too many issues of material fact exist as to whether the discovery rule or tolling doctrines apply under Arizona law (Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, D. Ariz.; 2016 U.S. Dist. LEXIS 160960).
PHILADELPHIA - Federal contractors must only present a colorable federal defense for removal and are not subject to a special standard requiring that they prove their case to prevail against a motion to remand, a Third Circuit U.S. Court of Appeals panel held Nov. 22 (Steven Papp, et al. v. Fore-Kast Sales Co. Inc., et al., No. 15-2851, 3rd Cir.; 2016 U.S. App. LEXIS 20924).
SAN FRANCISCO - A California federal judge properly awarded Electronic Arts Inc. (EA) judgment as a matter of law (JMOL) that the videogame maker did not infringe the copyrighted computer code of the original John Madden Football series, the Ninth Circuit U.S. Court of Appeals ruled Nov. 22 (Robin Antonick v. Electronic Arts Inc., No. 14-15298, 9th Cir.; 2016 U.S. App. LEXIS 20933).
HARRISBURG, Pa. - Expert testimony that every dose of asbestos contributes to the cumulative total simply states accepted scientific fact and is not the type of "every exposure" testimony rejected by precedent, a divided Pennsylvania Supreme Court held Nov. 22 in affirming a nearly $1 million verdict (Richard Rost and Joyce Rost v. Ford Motor Co., No. 56 EAP 2014, Pa. Sup.).
COLUMBUS, Ohio - E.I. du Pont de Nemours and Co. on Nov. 21 filed a brief in the perfluorooctanoic acid (known as C8) injury multidistrict litigation, arguing that the MDL court should deny the plaintiffs' motion to compel the production of underlying data the company used to create witness summaries for a cancer registry used in the first bellwether trial (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).
CONCORD, N.H. - The liquidator of an insolvent insurer asked a New Hampshire court on Nov. 21 to approve a $13.8 million settlement agreement with a bankrupt company's asbestos personal injury trust (In the Matter of the Liquidation of The Home Insurance Company, No. 03-E-0106, N.H. Sup., Merrimack Co.).
MIAMI - A former pharmacy owner was convicted by a federal jury in Florida on Nov. 16 of three counts of health care fraud for his role in a scheme in which he fraudulently billed Medicare $700,000 for prescription drugs that were never dispensed (United States of America v. Andres Alfonso, No. 16-cr-20567, S.D. Fla.).
ROCHESTER, N.Y. - A New York federal judge in an opinion filed Nov. 18 granted partial summary judgment to a man whose long-term disability claims were denied, saying that the defendants failed to adequately explain all of the reasons for denying the claim in violation of the Employee Retirement Income Security Act (Charles Standish v. Federal Express Corp. Long Term Disability Plan, et al., No. 6:15-cv-6226, W.D. N.Y.; 2016 U.S. Dist. LEXIS 160093).
SAN FRANCISCO - A California federal judge on Nov. 17 granted a summary judgment motion filed by Nestle Purina Petcare Co. and ordered the file closed in a proposed class complaint accusing the pet food maker of using toxic substances in its Beneful brand dog food (Frank Lucido v. Nestle Purina Petcare Co., et al., No. 15-569, N.D. Calif.; 2016 U.S. Dist. LEXIS 159569).
PHILADELPHIA - Three hospital employees who opted in to the second round of wage litigation against their employer have no standing to appeal the trial court's denial of collective action certification after the lead named plaintiff settled his individual claims, a Third Circuit U.S. Court of Appeals panel ruled Nov. 18 (Steven Halle, et al. v. West Penn Allegheny Health System Inc., et al., No. 15-3089, 3rd Cir.; 2016 U.S. App. LEXIS 20655).
ALBANY, N.Y. - A state system designed to compensate injured police officers does not constitute a workers' compensation system and allows for a tort action alleging exposure to asbestos while in the employ of the city of Buffalo, a divided New York Court of Appeals held Nov. 21 (In the Matter of James R. Diegelman, et al. v. City of Buffalo, et al., No. 168, N.Y. App.).
ALEXANDRIA, Va. - Arguments by Mylan Pharmaceuticals Inc. that a patented drug delivery system associated with the attention deficit hyperactivity disorder (ADHD) drug Adderall XR is invalid were well received Nov. 17 by the Patent Trial and Appeal Board, which agreed to institute inter partes review (Mylan Pharmaceuticals Inc. v. Shire Laboratories Inc., No. IPR2016-01033, PTAB).
DETROIT - The danger presented by slipping and falling on a step is considered open and obvious, and a plaintiff failed to establish evidence creating a genuine issue of material fact that a health care facility's steps contained "special aspects making them unreasonably dangerous," a Michigan appellate panel found in a Nov. 17 unpublished opinion, affirming summary judgment for the health care center (Loretta Needham v. Oakwood Healthcare, Inc., et al., No. 328293, Mich. App.; 2016 Mich. App. LEXIS 2106).
ST. LOUIS - In a Nov. 18 brief filed in Missouri federal court, the lead plaintiffs in a lawsuit against the operator of the Ashley Madison website oppose dismissal of their putative class action over a 2015 data breach that exposed their personal information, contending that they never assented to an arbitration clause within the site's terms and conditions (T&C) (In re Ashley Madison Customer Data Security Breach Litigation, No. 4:15-cv-02669, E.D. Mo.).
ORLANDO, Fla. - Because there is no evidence that an insured's exterior insulation finishing system (EIFS) was defectively installed, a Florida federal judge on Nov. 18 denied an insurer's motion for summary judgment in a suit filed by an insured seeking coverage for water and mold damages to the insured's home (George Crews, et al. v. Federal Insurance Co., No. 15-866, M.D. Fla.; 2016 U.S. Dist. LEXIS 160200).