LexisNexis® Legal Newsroom
State Net Capitol Journal – March 12th, 2012

c Budget & Taxes FL JUDGE SIDES AGAINST STATE IN PENSION CASE: A Florida circuit court ruled last week that Gov. Rick Scott (R) and Republican legislative leaders' decision last year to cut public employee salaries to offset the state's contribution to their pension fund was an...

Florida Judge Sides Against State in Pension Case

A Florida circuit court ruled last week that Gov. Rick Scott (R) and Republican legislative leaders' decision last year to cut public employee salaries to offset the state's contribution to their pension fund was an unconstitutional breach of contract. "The 2011 Legislature, when...

State Net Capitol Journal: FL Judge Sides against State in Pension Case

A Florida circuit court ruled last week that Gov. Rick Scott (R) and Republican legislative leaders' decision last year to cut public employee salaries to offset the state's contribution to their pension fund was an unconstitutional breach of contract. "The 2011 Legislature, when faced with...

Class Action Certified for Lender Requiring More Flood Insurance

THE MISCHIEVIOUS CLASS ACTION Home mortgage lenders are always concerned that their security is appropriately protected by insurance. As a result, by the terms and conditions, of the mortgage the lender keeps to itself the right to compel the borrower to buy sufficient insurance. In Stanley Kolbe v...

Virginia Right to Nonsuit Unaffected by Federal Court Dismissal

Dr. Adel S. Kebaish filed a defamation case in Fairfax County Circuit Court against INOVA Health Care Services and several doctors alleging defamation , breach of contract , tortious interference , conspiracy , wrongful termination and unjust enrichment. Defendants removed the case to federal court,...

Vandeventer Black LLP: Subcontractor's Quantum Meruit Claim Irreconcilable With Breach of Contract Claim

EDVA Dismisses Quantum Meruit Claim as Irreconcilable With Breach of Contract Claim and Also Dismisses Claimed Private Right of Action to Enforce Alleged FAR Violation By Neil Lowenstein Judge Turk, Senior District Judge for the United States District of Virginia, Roanoke Division, issued a recent...

Res Judicata: Double Jeopardy's Civil Lawsuit Cousin

When Cecil Addison was passed over for promotion, he sued Volvo Trucks North America and Ivan Mitchell in the Western District of Virginia for breach of contract and discrimination. Volvo Trucks had a contract agreement with the United Auto Workers Union. Addison alleged the defendants changed the contract's...

Damages Must Be Proven With Reasonable Certainty

A plaintiff must prove his damages claim with reasonable certainty by providing sufficient facts and circumstances to allow the fact finder to make an intelligent and probable estimate of the damages sustained. In Crum v. Anonymizer , the Fairfax Circuit Court refused to modify a jury verdict awarding...

First Circuit Rules Constitution's Appropriations Clause Quashes Flood Policy Claim Lacking Proof-of-Loss

By J. Wylie Donald You know it is not going well when the court cites the Constitution at you in a breach of contract case. But so it went in DeCosta v. Allstate Insurance Co. [ enhanced version available to lexis.com subscribers ], where the First Circuit last month reversed the trial court...

Party Relationships: Contract Form Can Dictate

Virginia Construction Law News and Notes When parties go into relationships they often think the relationship is one thing; but legally the relationship may be another. Judge Hughes' recent decision in the case of PEAC Consulting, LLC v. The Ridley Group & Associates, et al., decided September...

Insurer Has No Duty to Pay for Independent Counsel and May Reassert Its Right to Control the Defense When the Insurer Withdraws the Reservation of Rights Triggering the Insured’s Right to Independent Counsel

Swanson v. State Farm General Insurance Co., 2013 Cal. App. LEXIS 759 [ enhanced version available to lexis.com subscribers ], presented an issue of first impression regarding whether an insurer has a duty to provide an insured with independent counsel, pursuant to California Civil Code section 2860...

Be Careful When Walking Off of a Construction Project

I am truly grateful that my buddy Craig Martin ( @craigmartin_jd ) continues his great posts over at The Construction Contractor Advisor blog. He is always a good cure for writer’s block and once again this week he gave me some inspiration. In his most recent post, Craig discusses a recent Indiana...

Policy Requiring a Carrier to Investigate and Defend “Suits” Does Not Require It to Investigate and Defend Claims That Have Not Ripened Into Litigation

Great Am. E&S Ins. Co. v. Kouw Pinnq Enter. Co. , 2013 U.S. Dist. LEXIS 146247 (C.D. Cal. Sept. 20, 2013) [ enhanced version available to lexis.com subscribers ] In Great American , the district court held that a general liability insurer did not have an obligation to investigate, defend, or indemnify...

Federal: Breach of Contract Claim Against Special Employer for Failure to Provide Safe Work Environment Is Barred By Exclusiveness

That an employer referred in its Policies and Procedures Handbook to its commitment to provide a safe and health work place for its employees, that the Handbook also stated that safety rules and safe work practices were “not optional,” and that the employer had gone to great lengths to provide...

No Reasonable Person Would Believe Contract Exclusion Applies to Wrongful Eviction

By Jill Berkeley , Partner, Neal, Gerber & Eisenberg LLP In John Doyle Trust, et al. v. Country Mutual Insurance Co ., 2014 IL App (2d) 121238, [ enhanced version available to lexis.com subscribers ], the Illinois appellate court affirmed summary judgment entered against Country Mutual, finding...

The Importance of Proof of Mailing: If Premium Not Paid, Policy Cancelled

Insurance is, by definition, a contract whereby the insurer, for consideration, agrees to defend or indemnify another against a contingent or unknown risk. For an insurance policy to exist, therefore, the person insured must pay the premium (the consideration) charged by the insurer. States, like Florida...

Trial Court Finds Claim for Bad Faith May Survive a Motion to Dismiss Despite Failure to Properly Plead Claim for Breach of Contract

Mortazavi v. Federal Ins. Co. , 2014 U.S. Dist. LEXIS 31555 (S.D. Cal. Mar. 11, 2014), [ enhanced version available to lexis.com subscribers ]. In Mortazavi , the district court found in favor of a carrier on its motion to dismiss the insureds’ claim for breach of contract, but found that the...

Dentons on Taylor v. Allstate Insurance Co.: When Is a Texas Liability Insurer Liable for Inadequate Defense of a Case?

In Taylor v. Allstate Insurance Co.,[1] a Texas court of appeals held that the only common-law tort causes of action available against a liability insurer for allegedly inadequate defense of its insured are breach of contract and a Stowers[2] (failure to settle) claim, but that a contract claim might...

The Nuts and Bolts of a Payment Bond Claim in VA

After a week off from posting, much of it dealing with payment bond claims , I am back with a basic, but necessary refresher on these claims. A payment bond on a construction project (whether private or public) gives an unpaid subcontractor or supplier another collection option outside of a breach of...

U.S. Supreme Court Hears Oral Arguments In CAFA Evidence Appeal

WASHINGTON, D.C. — (Mealey’s) The plain language of 28 U.S. Code Section 1446(a) requires only “a short and plain statement of the grounds for removal,” not evidence, the attorney representing Dart Cherokee Basin Operating Co. LLC and Cherokee Basin Pipeline LLC argued Oct. 7...

Supreme Court Will Hear Dispute Over Patent Royalty Agreements

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court granted certiorari Dec. 12 in a case that could decide the continued viability of a longstanding precedent that licensing agreements that extend beyond the expiration date of a patent are unenforceable ( Stephen Kimble, et al. v. Marvel...

D&O Insurance: Insured That Settled Underlying Claim Without Insurer’s Consent Cannot Sue the Insurer for Breach of Contract or Bad Faith

The Georgia Supreme Court has held that where a policyholder settled an underlying claim without its D&O insurer’s consent, the policyholder cannot sue the carrier for breach of contract or for bad-faith failure to settle. The Court, applying Georgia law, entered its opinion in the case based...

Arizona: Injured Employee Must Exhaust Administrative Remedies Before Bad Faith Action Against Insurer

An injured worker who was receiving medical treatment expenses and TTD workers’ compensation benefits may not sue her employer’s insurance company for bad faith and to recover unpaid benefits and related damages without first challenging the carrier’s decision to terminate those benefits...

How to Defeat an Arson for Profit Attempt – Suspected Arsonist’s Bad Faith Suit Fails

Arson-for-profit is the most dangerous of all methods of attempting insurance fraud. When an insurer has sufficient evidence to suspect an arson for profit attempt and denies the claim it will expect that the insured will sue the insurer for fraud and bad faith. The best way to defeat such an action...

Claimant’s Assignee Unable to Pursue Breach of Contract Claim against Carrier Because the Claimant Did Not Assert His Claim during the Policy Period

In Petersen Arch Ins. Co. , the Central District of California granted the carrier’s motion to dismiss and held that the claimant’s assignee could not pursue a breach of contract claim against the carrier because the claimant did not make a claim against the insured attorney during the policy...