This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
This document is Defendant's brief in support of a motion for summary disposition in a case regarding a car accident. It argues that summary disposition is appropriate under MCR 2.116 (C)(10) and (C)(8) because Plaintiff cannot establish specific facts to support their claim or a valid legal basis for the claim. It also argues that no genuine issues of material fact exist regarding Defendant's liability under the Michigan No-Fault Act. The brief provides background on the standards for summary disposition and reviews the purpose and relevant sections of the Michigan No-Fault Act regarding insurance requirements.
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
Judge Stewart - Siltronic Order on Allocation of Environmental Response Costs...Seth Row
Judge Stewart's order goes behind the labels applied to various environmental response costs, to the purpose for which the work was done, to determine for insurance purposes whether a cost was "defense" or "indemnity."
UNITED STATES' ABUSE OF THE 'SERIAL LITIGATOR' DEFENSEVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
This document has been prepared in support of DEPRIVATION OF JURY TRIAL(S) - i.e. as “For depriving us in many cases, of the benefits of Trial by Jury” – as set forth in the United States of America’s DECLARATION OF INDEPENDENCE. Furthermore, provides a copy of a Court Order FALSELY accusing Newsome of RACIAL and ANTI-SEMITIC SLURS for addressing for what are KNOWN to be Terrorist Acts, War Crimes, Apartheid Practices/Crimes Against Humanity, and other Criminal Acts launched against her by the United States of America’s NAZI’S and/or WHITE Jews/Zionists/Supremacists!
IMPORTANT TO NOTE: Are those WHO played ROLES in the FOUNDING of Israel as the Nazis and/or WHITE Jewish/Zionists/Supremacists Law Firms as Baker Donelson Bearman Caldwell & Berkowitz: https://www.slideshare.net/VogelDenise/baker-donelson-founder-of-state-of-israel
The DENIAL of JURY TRIAL is also a defense that may be used in seeking INTERNATIONAL Judicial Review, INVESTIGATIONS and PROSECUTIONS, etc. – i.e. in taking matter(s) before INTERNATIONAL Tribunals!
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
This document is Defendant's brief in support of a motion for summary disposition in a case regarding a car accident. It argues that summary disposition is appropriate under MCR 2.116 (C)(10) and (C)(8) because Plaintiff cannot establish specific facts to support their claim or a valid legal basis for the claim. It also argues that no genuine issues of material fact exist regarding Defendant's liability under the Michigan No-Fault Act. The brief provides background on the standards for summary disposition and reviews the purpose and relevant sections of the Michigan No-Fault Act regarding insurance requirements.
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
Judge Stewart - Siltronic Order on Allocation of Environmental Response Costs...Seth Row
Judge Stewart's order goes behind the labels applied to various environmental response costs, to the purpose for which the work was done, to determine for insurance purposes whether a cost was "defense" or "indemnity."
UNITED STATES' ABUSE OF THE 'SERIAL LITIGATOR' DEFENSEVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
This document has been prepared in support of DEPRIVATION OF JURY TRIAL(S) - i.e. as “For depriving us in many cases, of the benefits of Trial by Jury” – as set forth in the United States of America’s DECLARATION OF INDEPENDENCE. Furthermore, provides a copy of a Court Order FALSELY accusing Newsome of RACIAL and ANTI-SEMITIC SLURS for addressing for what are KNOWN to be Terrorist Acts, War Crimes, Apartheid Practices/Crimes Against Humanity, and other Criminal Acts launched against her by the United States of America’s NAZI’S and/or WHITE Jews/Zionists/Supremacists!
IMPORTANT TO NOTE: Are those WHO played ROLES in the FOUNDING of Israel as the Nazis and/or WHITE Jewish/Zionists/Supremacists Law Firms as Baker Donelson Bearman Caldwell & Berkowitz: https://www.slideshare.net/VogelDenise/baker-donelson-founder-of-state-of-israel
The DENIAL of JURY TRIAL is also a defense that may be used in seeking INTERNATIONAL Judicial Review, INVESTIGATIONS and PROSECUTIONS, etc. – i.e. in taking matter(s) before INTERNATIONAL Tribunals!
Government’s response to defendant traian bujduveanu’s motion for severanceCocoselul Inaripat
This document is a response by the United States government opposing a motion for severance filed by defendant Traian Bujduveanu. Bujduveanu and co-defendant Hassan Saied Keshari were indicted for conspiracy to violate sanctions against Iran and export restrictions on arms. The government argues that severance is not warranted, as Bujduveanu fails to cite any specific statements or evidence that would unfairly prejudice him. Joinder of the defendants was proper under the rules as they were alleged to have participated in the same conspiracy. A joint trial is also presumed appropriate for co-conspirators.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
The Court of Appeals affirms the lower court's granting of summary judgment to CitiMortgage in a foreclosure action. Maria Potvin argued she was entitled to relief under the Home Affordable Modification Program and that foreclosure was inequitable, but the court found the mediation was non-binding and she did not sign the modification agreement or make payments. The court also found the affidavit from CitiMortgage in support of summary judgment met evidentiary rules for records of regularly conducted business activities. Therefore, the appeals court denied all of Potvin's assignments of error and upheld the foreclosure.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
The document is a memorandum analyzing a products liability case. A college football player, Joseph Green, died from heat stroke after practicing in a football helmet and shoulder pads manufactured by Sports Equipment, Inc. Green's mother brought a lawsuit against the company. The memorandum examines the company's motion for summary judgment on several claims. For the failure to warn claim, the court should grant summary judgment because the plaintiff failed to provide sufficient evidence that the lack of warning on the helmet and pads was the proximate cause of Green's death. The court should also grant summary judgment that the risk of heat illness was open and obvious. However, the learned intermediary defense does not apply in this case.
This memorandum decision addresses cross motions for summary judgment in a case regarding leases on the Osprey Meadows Golf Course and Lodge. Bryant, as the court-appointed fiduciary for RSPT, holds a promissory note, mortgage, and assignment of rents on the property from the defaulting owner, WMG. Tamarack Municipal Association (TMA) leased and operated the golf course and lodge. The court denies Bryant's motions for summary judgment on contract claims and to strike expert testimony. The court partially grants and denies TMA's motion for summary judgment, finding issues of fact remain regarding Bryant's authority to terminate TMA's leases unilaterally upon WMG's default.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
This document is a complaint filed by Central Asia Institute against Philadelphia Indemnity Insurance Company regarding insurance coverage. It summarizes that CAl had an insurance policy with Philadelphia to cover certain legal claims. CAl and its executive director Greg Mortenson were sued in two matters (the "Pfau Litigation" and "AG Matter") and incurred legal defense costs. However, Philadelphia refused to fully cover and advance these defense costs, in breach of the insurance contract. CAl is suing Philadelphia for declaratory relief and damages for its failure to honor coverage obligations.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
1. Judgment Creditors KPC filed a motion to appoint a receiver to enforce a $2.1 million judgment against Judgment Debtor Stephen Gaggero and his alter ego entities.
2. Gaggero has avoided paying the judgment by transferring his assets to various entities, trusts, and a foundation through an asset protection plan, even though he retains control over the assets.
3. KPC argues that the court has authority to appoint a receiver under the Code of Civil Procedure to enforce the judgment and that a receiver is necessary because Gaggero and his counsel have obstructed and delayed KPC's collection efforts for years.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
Hieleras ruled deprivation of constitutional rightsBryan Johnson
This order grants a preliminary injunction requiring the US Border Patrol to comply with its own guidelines for holding detainees, based on evidence that detainees' basic human needs were not being met. The court found the plaintiffs were likely to succeed on their claims that conditions violated detainees' due process rights by depriving them of adequate sleep, hygiene, medical care, food and water, and warmth. While acknowledging funding constraints, the court ruled constitutional rights cannot be denied for fiscal reasons and ordered compliance with guidelines to provide these basic needs as outlined in the Border Patrol's 2008 policy and TEDS standards.
121815 - OBJECTION TO 120815 ORDER ON OBJECTION (Townsend Matter)VogelDenise
POWER WITH "WE THE PEOPLE" - KNOW YOUR LEGAL/LAWFUL RIGHTS TO OVERTHROW THE UNITED STATES OF AMERICA'S DESPOTISM GOVERNMENT and have a GOVERNMENT that WORKS for "WE THE PEOPLE!"
DECLARATION OF INDEPENDENCE - Overthrowing Despotism, Political Corruption, Judicial Corruption/Injustices. . . .HEALING and RESTORING a NATION!
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
Trial Strategy: The Struggle over Perpetuating Testimony Before Litigation B...NationalUnderwriter
Can an insurance company seek a court order to protect evidence before it is sued by a policyholder? A carrier may want to do this to protect its interests in any coverage case that ultimately is filed. Several decisions by federal district courts in Louisiana have explored this topic – and have reached different conclusions.
This newsletter provides summaries of recent reinsurance case law and regulatory developments from March 2014. It includes summaries of cases from New York, Tennessee, and California federal courts related to arbitration awards, protected cell reinsurance agreements, preclusion of subsequent arbitrations, and common interest privilege with reinsurers. It also summarizes cases related to tax treatment of retrocessional agreements, dismissal of defenses in a facultative reinsurance dispute, denial of stay in a mortgage reinsurance case, and assumption versus reinsurance.
Federal Court Denying Motion by Satish Vuppalapati, Madhavi Vuppalapati and A...mh37o
Federal court denied the motion by Satish Vuppalapati, Madhavi Vuppalapati and Anandhan Jayaraman. Court confirmed that PISL India and PISl PA are one and the same companies.
This document is an order from a United States District Court regarding cross-motions for summary judgment in a case involving a plaintiff who was imprisoned at a halfway house operated by the defendant. The court provides background on the case, including that the plaintiff sued over alleged unlawful seizure of his property and constitutional violations. The court evaluates the motions using the standard for summary judgment, granting the defendant's motion and denying the plaintiff's motion.
Government’s response to defendant traian bujduveanu’s motion for severanceCocoselul Inaripat
This document is a response by the United States government opposing a motion for severance filed by defendant Traian Bujduveanu. Bujduveanu and co-defendant Hassan Saied Keshari were indicted for conspiracy to violate sanctions against Iran and export restrictions on arms. The government argues that severance is not warranted, as Bujduveanu fails to cite any specific statements or evidence that would unfairly prejudice him. Joinder of the defendants was proper under the rules as they were alleged to have participated in the same conspiracy. A joint trial is also presumed appropriate for co-conspirators.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
The Court of Appeals affirms the lower court's granting of summary judgment to CitiMortgage in a foreclosure action. Maria Potvin argued she was entitled to relief under the Home Affordable Modification Program and that foreclosure was inequitable, but the court found the mediation was non-binding and she did not sign the modification agreement or make payments. The court also found the affidavit from CitiMortgage in support of summary judgment met evidentiary rules for records of regularly conducted business activities. Therefore, the appeals court denied all of Potvin's assignments of error and upheld the foreclosure.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
The document is a memorandum analyzing a products liability case. A college football player, Joseph Green, died from heat stroke after practicing in a football helmet and shoulder pads manufactured by Sports Equipment, Inc. Green's mother brought a lawsuit against the company. The memorandum examines the company's motion for summary judgment on several claims. For the failure to warn claim, the court should grant summary judgment because the plaintiff failed to provide sufficient evidence that the lack of warning on the helmet and pads was the proximate cause of Green's death. The court should also grant summary judgment that the risk of heat illness was open and obvious. However, the learned intermediary defense does not apply in this case.
This memorandum decision addresses cross motions for summary judgment in a case regarding leases on the Osprey Meadows Golf Course and Lodge. Bryant, as the court-appointed fiduciary for RSPT, holds a promissory note, mortgage, and assignment of rents on the property from the defaulting owner, WMG. Tamarack Municipal Association (TMA) leased and operated the golf course and lodge. The court denies Bryant's motions for summary judgment on contract claims and to strike expert testimony. The court partially grants and denies TMA's motion for summary judgment, finding issues of fact remain regarding Bryant's authority to terminate TMA's leases unilaterally upon WMG's default.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
This document is a complaint filed by Central Asia Institute against Philadelphia Indemnity Insurance Company regarding insurance coverage. It summarizes that CAl had an insurance policy with Philadelphia to cover certain legal claims. CAl and its executive director Greg Mortenson were sued in two matters (the "Pfau Litigation" and "AG Matter") and incurred legal defense costs. However, Philadelphia refused to fully cover and advance these defense costs, in breach of the insurance contract. CAl is suing Philadelphia for declaratory relief and damages for its failure to honor coverage obligations.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
1. Judgment Creditors KPC filed a motion to appoint a receiver to enforce a $2.1 million judgment against Judgment Debtor Stephen Gaggero and his alter ego entities.
2. Gaggero has avoided paying the judgment by transferring his assets to various entities, trusts, and a foundation through an asset protection plan, even though he retains control over the assets.
3. KPC argues that the court has authority to appoint a receiver under the Code of Civil Procedure to enforce the judgment and that a receiver is necessary because Gaggero and his counsel have obstructed and delayed KPC's collection efforts for years.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
Hieleras ruled deprivation of constitutional rightsBryan Johnson
This order grants a preliminary injunction requiring the US Border Patrol to comply with its own guidelines for holding detainees, based on evidence that detainees' basic human needs were not being met. The court found the plaintiffs were likely to succeed on their claims that conditions violated detainees' due process rights by depriving them of adequate sleep, hygiene, medical care, food and water, and warmth. While acknowledging funding constraints, the court ruled constitutional rights cannot be denied for fiscal reasons and ordered compliance with guidelines to provide these basic needs as outlined in the Border Patrol's 2008 policy and TEDS standards.
121815 - OBJECTION TO 120815 ORDER ON OBJECTION (Townsend Matter)VogelDenise
POWER WITH "WE THE PEOPLE" - KNOW YOUR LEGAL/LAWFUL RIGHTS TO OVERTHROW THE UNITED STATES OF AMERICA'S DESPOTISM GOVERNMENT and have a GOVERNMENT that WORKS for "WE THE PEOPLE!"
DECLARATION OF INDEPENDENCE - Overthrowing Despotism, Political Corruption, Judicial Corruption/Injustices. . . .HEALING and RESTORING a NATION!
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
Trial Strategy: The Struggle over Perpetuating Testimony Before Litigation B...NationalUnderwriter
Can an insurance company seek a court order to protect evidence before it is sued by a policyholder? A carrier may want to do this to protect its interests in any coverage case that ultimately is filed. Several decisions by federal district courts in Louisiana have explored this topic – and have reached different conclusions.
This newsletter provides summaries of recent reinsurance case law and regulatory developments from March 2014. It includes summaries of cases from New York, Tennessee, and California federal courts related to arbitration awards, protected cell reinsurance agreements, preclusion of subsequent arbitrations, and common interest privilege with reinsurers. It also summarizes cases related to tax treatment of retrocessional agreements, dismissal of defenses in a facultative reinsurance dispute, denial of stay in a mortgage reinsurance case, and assumption versus reinsurance.
Federal Court Denying Motion by Satish Vuppalapati, Madhavi Vuppalapati and A...mh37o
Federal court denied the motion by Satish Vuppalapati, Madhavi Vuppalapati and Anandhan Jayaraman. Court confirmed that PISL India and PISl PA are one and the same companies.
This document is an order from a United States District Court regarding cross-motions for summary judgment in a case involving a plaintiff who was imprisoned at a halfway house operated by the defendant. The court provides background on the case, including that the plaintiff sued over alleged unlawful seizure of his property and constitutional violations. The court evaluates the motions using the standard for summary judgment, granting the defendant's motion and denying the plaintiff's motion.
GS Holistic Court Opinion in Trademark DisputeMike Keyes
This document is a court filing that recommends granting in part a motion for default judgment against two defendants, Haz Investments LLC and Hazim Assaf, in a trademark infringement lawsuit. The plaintiff, GS Holistic LLC, alleges the defendants sold counterfeit products bearing GS's trademarks without authorization. As the defendants failed to respond to the complaint, the clerk entered default against them. The court filing analyzes the applicable legal standards and finds default judgment is warranted procedurally and substantively for some of the plaintiff's claims. It recommends awarding $15,000 in statutory damages, $782 in costs, and injunctive relief to the plaintiff.
The document discusses two motions in the case of Stephen M. Gaggero v. Knapp, Petersen and Clarke, et al.
1) The court partially granted the plaintiff's motion to quash the third deposition notice but ordered that the plaintiff submit to a final deposition of no more than 10 hours on a mutually agreeable date.
2) The court denied the plaintiff's motion to quash the subpoena for production of documents from the plaintiff's previous attorney. The court found that the plaintiff waived privilege by suing both the defendant and previous attorney and putting the attorney's conduct at issue. The documents were ordered to be produced.
Opinion granting plaintiffs' msj 17-02-10 reliance is required spending on ...Seth Row
US District Court, District of Oregon, order holding that insurer did not "rely" on insured's alleged misrepresentation by incurring expenses to investigate insured's loss
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This order addresses the plaintiffs' motion for a temporary restraining order against the defendant. The court finds that the plaintiffs have sufficiently shown they have a protected interest in trade secrets and confidential information. They have also shown irreparable harm if an injunction is not granted, as the defendant is allegedly using protected information to directly compete with the plaintiffs in violation of a non-compete agreement. Additionally, the plaintiffs have no adequate legal remedy and have raised fair questions that they will likely succeed on their claims of breach of contract, trade secret misappropriation, and trademark infringement. Therefore, the court will grant the plaintiffs' motion for a temporary restraining order to preserve the status quo until a hearing can be held on a preliminary injunction.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
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1. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 1 of 16
F L;
U.S. DJSTFfldi rd
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIAZflII FEB -2 PM 2:25
SAVANNAH DIVISION
GLENN CODY,
Plaintiff!
V. CASE NO. CV409-104
MANAGEMENT INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION
(MILA) NATIONAL HEALTH PLAN
and GEORGIA FARM BUREAU MUTUAL
INSURANCE CO.,
Defendants.
ORDER
Before the Court are Plaintiff's Motion for Summary
Judgment (Doc. 26) and Defendant Georgia Farm Bureau Mutual
Insurance Co.'s ("Farm Bureau") Cross-Motion for Summary
Judgment (JJoc. 29). Defendant Management International
Longshoremen's Association (MILA) National Health Plan ("MILA")
has not filed an independent motion, but it has opposed
Plaintiff's motion. (Doc. 33.) For the reasons below,
Plaintiff's motion for summary judgment is GRANTED as to
Defendant MILA and DISMISSED as to Defendant Farm Bureau. (Doc.
26.) Defendant Farm Bureau's motion for summary judgment is
GRANTED. (Doc. 29.) A brief summary of this dispute is as
follows.
2. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 2 of 16
BACKGROUND
At first glance, this case appears to be a classic
insurance proceeds based interpleader action, in which a
plaintiff typically seeks a judicial determination of the
rightful recipient of settlement funds. This case, however,
includes an additional twist by including one Defendant who is
claiming money from Plaintiff and another Defendant against whom
Plaintiff has conditionally asserted a claim.
Plaintiff Glenn Cody was involved in an automobile accident
on October 24, 2004 with another vehicle, which was driven by
Lakisha Gusby. (Doc. 10 ¶ 6; Doc. 27 ¶ 2.) Although Plaintiff
incurred medical expenses exceeding $29,500.00 and an estimated
$30,000.00 in lost wages, Plaintiff has recovered only a
$25,000.00 policy limits settlement from Ms. Gusby's insurer,
Infinity Insurance. (Doc. 10 ¶IJ 6, 8; Doc. 27 ¶j 6, 11; Doc. 27,
Ex. B ¶ 7.) As consideration for the settlement, Plaintiff
executed a "Limited Release Pursuant to O.C.G.A. 33-24-41.1"
(Doc. 27 at 25-28), which had the effect of releasing the
"insured tort-f easor covered by the policy of the settling
carrier from all personal liability from any and all claims
arising from the occurrence on which the claim is based except
to the extent other insurance coverage is available which covers
such claim or claims." O.C.G.A. § 33-24-41.1(b) (2) (emphasis
2
3. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 3 of 16
added). That policy limits settlement remains in the trust
account of Plaintiff's attorney. (Doc. 10 ¶ 8; Doc. 27 ¶ 13.)
Defendant MILA is a health insurance plan that provided
payment of $17,632.18 on Plaintiff's $29,500.00 in medical
expenses arising out of the above accident. (Doc. 10 ¶¶ 1, 9;
Doc. 26 ¶ 6; Doc. 27 ¶ 13.) Since that time, Defendant MILA has
placed an equitable lien of $17,632.18 against the settlement
funds and seeks reimbursement of the benefits paid on
Plaintiff's behalf. (Doc. 10 ¶ 10; Doc. 27 ¶ 13.) Plaintiff
has requested that this Court determine the validity of
Defendant MILA's lien and what, if any, extent Defendant MILA is
entitled to recover on that lien from the settlement proceeds.
(Doc. 10 ¶ 14.)
The role of Defendant Farm Bureau in this dispute is
related, but its liability, if any, is conditioned on this
Court's resolution of the dispute between Plaintiff and
Defendant MILA. Plaintiff was insured by Defendant Farm Bureau
and, as a component of his policy, purchased
uninsured/underinsured motorist (UM) coverage. (Id. at 11; Dcc.
27 ¶ 4.) However, the limit of that UM coverage was $25,000.
(Doc. 10 at 11; Doc. 27 ¶ 4.) Defendant Farm Bureau has
disputed the applicability of UM coverage to the facts of this
case. (Doc. 10 at 12; Doc. 31.)
3
4. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 4 of 16
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56 (c) . The "purpose of summary judgment is to 'pierce the
pleadings and to assess the proof in order to see whether there
is a genuine need for trial.' " Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (quoting Fed. R. Civ. P.
56 advisory committee notes)
Summary judgment is appropriate when the nonmovant "fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp. V.
Catrett, 477 U.S. 317, 322 (1986) . The substantive law
governing the action determines whether an element is essential.
DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499,
1505 (11th Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always bears the
initial responsibility of informing the district
court of the basis for its motion, and identifying
those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it
4
5. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 5 of 16
believes demonstrate the absence of a genuine issue
of material fact.
Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts material to the nonmovant's
case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most favorable
to the nonmovant. Matsushita, 475 U.S. at 587-88. However, the
nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Id. at 586.
A mere "scintilla" of evidence, or simply conclusory
allegations, will not suffice. See, e.g., Tidwell v. Carter
Prods., 135 F.3d 1422, 1425 (11th Cir. 1998) . Nevertheless,
where a reasonable fact finder may "draw more than one inference
from the facts, and that inference creates a genuine issue of
material fact, then the Court should refuse to grant summary
judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th
Cir. 1989)
II. THE VALIDITY OF DEFENDANT MILA'S LIEN
The analysis of the liability, if any, of Defendant Farm
Bureau is dependent on the Court's resolution of the dispute
between Plaintiff and Defendant MILA. Accordingly, the Court
will first address Plaintiff's motion for summary judgment
5
6. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 6 of 16
against Defendant MILA. (Doc. 26.) Although Defendant MILA has
opposed the grant of that motion (Doc. 33), it has not moved for
summary judgment against Plaintiff or filed a cross-motion for
summary judgment.
This dispute centers around the applicability of the 'make
whole" doctrine to this case, a principle that normally bars
subrogation where the insured has not been fully compensated for
his or her injury or damages. While Plaintiff concedes that the
Georgia "make whole" rule does not apply because of Employee
Retirement Income Security Act ("ERISA") preemption, he argues
that a similar doctrine exists under federal common law and
precludes Defendant MILA from any recoupment. (Doc. 16, Attach.
1 at 2.) In Cagle v. Bruner, 112 F.3d 1510, 1521 (11th Cir.
1997) , the "make whole doctrine" was adopted as the default rule
in ERISA cases in this circuit. That rule still applies in the
Eleventh Circuit today. See Brown & Williamson Tobacco Corp. v.
Collier, 2010 U.S. Dist. LEXIS 36505, at *13_*14 (M.D. Ga. Apr.
13, 2010) . This rule is, however, only a default one; the
parties, by the terms of the ERISA plan, are free to contract
out of that doctrine's application. Cagle, 112 F.3d at 1521.
However, specific language over and above the reservation
of typical subrogation rights is required to escape the default
rule. Id. at 1521-22 ("[S]tandard subrogation language . .
does not demonstrate a specific rejection of the make whole
6
7. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 7 of 16
doctrine ..) As the Eleventh Circuit has held, "[a]n
ERISA plan overrides the make whole doctrine only if it includes
language specifically allowing the Plan the right of first
reimbursement out of any recovery [the participant] was able to
obtain even if [the participant] were not made whole." Id. at
1522 (internal quotation and citation omitted) (alterations in
original) (emphasis added). This is the case regardless of the
existence of the administrator's discretion to interpret the
plan. (Id.) Therefore, an analysis of the language utilized in
this ERISA plan is required.
The ERISA plan language applicable to this case is the MILA
plan with an effective date of January 24, 2003. This plan
remained effective well past the date of the last claim related
to this case, which was in January 2005. (Doe. 26, Attach. 1 at
4-5.) Although another plan took effect on August 1, 2006, it
is not relevant to this dispute. (Doe. 27 at 12.) The relevant
language from the applicable ERISA plan, which was effective
from January 1, 2000 through July 31, 2006 ("Applicable Plan")
(Id.), is as follows:
Section 9.01. Plan Benefits Are Subject To Right To
Subrogate. In the event of any payment under this
Plan, the Plan shall, to the extent of such payment,
be subrogated to all the rights of recovery of the
covered individual arising out of any claim or cause
of action which has accrued or may accrue because of
alleged negligence of any other claim against a third
party for the injuries or conditions which resulted in
the payments. This includes, but is not limited to,
the right of the Plan to sue such third party directly
7
8. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 8 of 16
in the place and stead of the covered individual, or
the personal representative of same. Any such covered
individual, by filing for benefits, and the personal
representative of same, as follows:
a. agrees to reimburse the Plan for any and all
benefits so paid hereunder, out of any and
all monies recovered from such third party
as the result of suit, judgment, settlement,
or otherwise; and whether the recovery be
designated as medical expenses or otherwise;
b. agrees that no settlement will be made nor
release given without prior notification to
the Plan;
C. agrees to transfer and assign to the Plan
all rights, title and interest in and to any
and all monies that may be recovered as a
result of any claim or suit arising out of
the loss or injury to the extent of any and
all payments made by the Plan relating to
such loss or injury and agrees to authorize
that such amount be deducted from any and
all recoveries that may be received by the
covered individual's attorney or
representative and be paid over directly to
the Plan; and
d. agrees to take such action, to furnish such
information and assistance, and to execute
and deliver all necessary instruments as the
Plan may require to facilitate the
enforcement of its rights.
(Id. at 14-15 (emphasis in original).) The Applicable Plan
includes only standard subrogation language. Notably absent
from this Section of the Applicable Plan is any mention of the
"make whole" doctrine, synonym thereof, or expression of any
similar concept in any other form. A comparison of the
Applicable Plan to similar provisions that were the subject of
In Diamond
opinions by other courts in this circuit is telling
8
9. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 9 of 16
Crystal Brands, Inc. v. Wallace, 2010 U.S. Dist. LEXIS 48684
(N.D. Ga. Feb. 11, 2010) (unpublished), that court found the
following language sufficient to contract out of the make whole
doctrine:
No consent or agreement of the Plan to reduce its
recovery for any reason shall be implied either in
fact or in law by any doctrine or rule of law to the
contrary . . . Except as otherwise agreed by the Plan
in writing, the proceeds shall be applied first to the
Plan's recovery, whether o [sic] not any Covered
Individual, dependent or other Recipient is or would
be fully compensated, notwithstanding any "Made-Whole
Doctrine," . . . or any other law which would
otherwise require a Covered Individual, depend or
other Recipient to be compensated before reimbursement
of a subrogee.
Diamond Crystal, 2010 U.S. fist. LEXIS 48684, at *24.-*25
(emphasis added) . Another court reached the same result on the
basis of a plan that mentioned "being made whole," which read as
follows:
If the covered person or his or her legal
representative:
• makes any recovery from any of the sources
described above; and
• fails to reimburse Great-West for any benefits
which arise from the Illness, sickness or bodily
injury;
then:
• the covered person or his or her legal
representative will be personally liable to
Great-West for the amount of the benefits paid
under this Plan; and
• Great-West may reduce future benefits payable
under this Plan for any Illness, sickness or
9
10. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 10 of 16
bodily injury by the payment that the covered
person or his or her legal representative has
received from the Other Party.
Great-West's first lien rights will not be reduced due
to the covered person's own negligence; or due to the
covered person not being made whole; or due to
attorney's fees and costs.
Great-West Life & Annuity Ins. Co. v. Brown, 192 F. Supp. 2d
1376, 1380 (M.D. Ga. 2002) (emphasis added).
In contrast, the Eleventh Circuit applied the make whole
doctrine even in the face of the following contract language:
To the extent that benefits for services are provided
hereunder, the Southeastern Ironworkers Welfare Fund
shall be subrogated and succeed to any rights of
recovery of the covered persons because of such
services against any person or organization, except
insurers on policies of health insurance covering the
covered persons. The covered persons shall pay over to
the Southeastern Ironworkers Welfare Fund all amounts
recovered by suit, settlement or otherwise from any
third person or his insurer to the extent of benefits
provided hereunder. The covered persons shall take
such action, furnish such information and assistance,
and execute such instruments as the Southeastern
Ironworkers Welfare Fund may require to facilitate
enforcement of its rights hereunder, and shall take no
action prejudicing the rights and interests of the
Southeastern Ironworkers Welfare Fund hereunder.
Guy v. Se. Iron Workers' Welfare Fund, 877 F.2d 37, 38 (11th
Cir. 1989). Even the following language providing for express
reduction of benefits was insufficient to reject the application
of the make whole doctrine:
An Employee for whom Disability Benefits are payable
under this Policy may be eligible for benefits from
Other Income Benefits. If so, the Insurance Company
may reduce the Disability Benefits of such Other
income Benefits." "Other Income Benefits" include: 112.
10
11. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 11 of 16
any Social Security disability or retirement benefits
the Employee or any third party receives . . . 5. any
amounts paid because of loss of earnings or earning
capacity through settlement, judgment, arbitration or
otherwise. . .
Smith v. Life Ins. Co. of N. Am., 466 F. Supp. 2d 1275, 1286
(M.D. Ga. 2006). Therefore, on the basis of these comparisons,
the relevant case law, and an analysis of the language of the
Applicable plan, the Court concludes that this ERISA plan does
not effectuate an opt-out of the default 'make whole" rule of
the Eleventh Circuit.
This conclusion becomes more evident by contrasting the
above Section with language from Defendant MILA's updated ERISA
plan, which became effective on August 1, 2006. (Doc. 27
at 12.) This plan includes a separate subsection that states,
9.03.02 Plan's Right of Recovery. If benefits are
paid by the plan and the covered individual or the
covered individual's eligible dependent recovers from
a third party by settlement, judgment, insurance
proceeds or otherwise, the Plan has the right to
recover from the covered individual or the covered
individual's eligible dependent an amount equal to the
amount paid by the Plan. The covered individual's or
the covered individual's eligible dependent's right to
be made whole is superseded by the Plan's right to
reimbursement.
(Doc. 27 at 20 (first emphasis in original; second emphasis
added).) The addition of this language and its absence from the
Applicable Plan, while not impacting this Court's decision in
any way, is supportive of it. Further, Defendant MILA does
little, if anything, to contest this characterization of the
11
12. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 12 of 16
Applicable Plan language. Defendant MILA's only response
directed at the topic stated that even if the plan language
does not specifically overcome the make whole doctrine, an
insured can only benefit from the make whole doctrine if he has
complied with the plan provisions setting forth the insured's
obligation with respect to the plan's right to subrogation."
(Doc. 33 at 1.) The Court will now address Defendant MILA's
argument.
III. PLAINTIFF'S COMPLIANCE WITH THE ERISA PLAN AND CONTINUED
APPLICABILITY OF THE MAKE WHOLE DOCTRINE AS THE DEFAULT RULE
Defendant MILA, as its primary responsive argument to
Plaintiff's motion for summary judgment, argues that the make
whole doctrine is inapplicable to this case because Plaintiff
has breached the terms of the ERISA plan. (Doc. 33 at 1-3.)
Defendant MILA's position can be summarized by this statement:
[A] n insured can only benefit from the make whole doctrine if
he has complied with the plan provisions setting forth the
insured's obligation with respect to the plan's right to
subrogation." (Doc. 33 at 1 (emphasis added).) Indeed, the
contrapositive of that logical statement would be that unless a
participant complies with ERISA plan provisions, then the make
whole doctrine does not provide a benefit. As support for such
an extreme statement, Defendant MILA relies on a single court
case with limited appellate history and citing authority. (Id.
at 2.)
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13. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 13 of 16
That case, Adelstein v. Unicare Life & Health Ins. Co., 135
F. Supp. 2d 1240 (M.D. Fla. 2001) , is a district court decision
adopting the report and recommendation of a magistrate judge
over objections. Although the Eleventh Circuit did affirm the
OpifliOfl, it did so in an expressly unpublished decision,
consisting of all of tour paragraphs and less than one full
column of a page. Adelstein v. Unicare Life & Health Ins. Co.,
27 Employee Benefits Cas. (BNA) 1370 (11th Cir. 2002)
(unpublished). For the reasons that follow, Defendant MILA' s
reliance on that case is misplaced.
First, the language of the plan in Adelstein and the
Applicable Plan are wholly different. Notably, the result in
Adelstein is easily explained as the mere result of implementing
the terms of the ERISA plan applicable to that case, which
stated that the
[f]ailure of a covered person to give notice to the
insurer or to cooperate with the insurer, or a covered
person's actions that prejudice the insurer's rights
or interest, will be a material breach of this group
policy and result in the covered person being
personally responsible for reimbursing the insurer.
Adelstein, 135 F. Supp. 2d 1240, 1252-53 (emphasis added) . In
contrast, the Applicable Plan does not provide nearly so extreme
a remedy and instead states, in Section 9.01.03 titled
"Penalties for Failure to Comply," only that "Failure to provide
necessary information or to reimburse the Plan within four weeks
after recovery of any sum shall disqualify the covered
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14. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 14 of 16
individual and his dependents from receiving any future benefits
under the Plan." (Doc. 27 at 15 (first emphasis in original;
second emphasis added).) The record in this case indicates that
Defendant MILA exercised its rights under this provision by
letter on January 18, 2006 by suspending benefits under the
Applicable Plan. (Doc. 33 at 18.) Indeed, the Eleventh Circuit
recognized in Adelstein that the "insured has breached notice,
cooperation, and prejudice requirements which expressly provide
that the insured will be personally responsible for the
reimbursement amount . . . ." Adelstein, 27 Employee Benefits
Cas. (BNA) at 1371 (emphasis added). The language of the ERISA
plan quoted in the Adelstein district court decision indicates
that the court was merely enforcing the terms of the agreement
between the plan participant and the plan. That court concluded
that
[t]he insurance policy and benefit plan here clearly
provides the consequences of a material breach of the
cooperation and information sharing provisions of the
agreements—the Adelsteins become personally liable to
Unicare for reimbursement. Nothig in Cagle makes such
contractual agreements unenforceable under the
circumstances presented here. Unicare is entitled to
subrogation and reimbursement as a matter of law.
Adelstein, 135 F. Supp. 2d at 1253 (emphasis added) . Likewise,
nothing in the Applicable Plan provides for personal liability
against Plaintiff for failure to comply with the Applicable
Plan.
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15. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 15 of 16
Finally, this Eleventh Circuit opinion is, after all,
unpublished. Despite the passing of nearly a decade, the
district court's decision has not been cited beyond immediate
appellate review. Defendant MILA has neither cited, nor has
this Court been able to locate, any other authority that would
lead this Court to an opposite conclusion. Instead, the
Adelstein decision appears to be one confined to its facts,
which consisted of a very different ERISA plan. Far from
Defendant MILA's characterization, it does not create a
condition precedent to every application of the make whole
doctrine.
The Court concludes that the Adelstein opinion, even if
intended to be the controlling law for this Circuit, was based
on easily distinguishable circumstances. Therefore, the make
whole doctrine remains applicable in this case. For the reasons
above, Plaintiff's motion for summary judgment as to Defendant
MILA is GRANTED.
IV. APPLICABILITY OF PLAINTIFF'S UNINSURED/UNDERINSURED
MOTORIST INSURANCE COVERAGE
Finally, the Court turns to the last issue of this case:
the motions filed against and by Defendant Farm Bureau.
Plaintiff has moved for summary judgment against Defendant Farm
Bureau under Plaintiff's UN coverage. (Doc. 26, Attach. 1 at
6.) However, Plaintiff's motion conditioned this request for
relief on the existence of Defendant MILA's lien against
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16. Case 4:09-cv-00104-WTM-GRS Document 38 Filed 02/02/11 Page 16 of 16
Plaintiff's settlement proceeds. (Id. ("[hf . . . MILA has a
lien, . . * then Plaintiff's UM coverage under his Georgia Farm
Bureau Policy is triggered.").)
Based on the Court's ruling as to the applicability of the
make whole doctrine and that the Adelstein decision is
inapposite, the Court sees no need to address the issue raised
in any greater detail than necessary to resolve this case.
Accordingly, Plaintiff's motion for summary judgment (Doc. 26)
is DISMISSED as to Defendant Farm Bureau, and Defendant Farm
Bureau's motion for summary judgment (Doc. 29) is GRANTED.
CONCLUSION
Plaintiff's motion for summary judgment is GRANTED as to
Defendant MILA and DISMISSED as to Defendant Farm Bureau. (Doc.
26.) Defendant Farm Bureau's motion for summary judgment (Doc.
29) is GRANTED. The Clerk of Court is DIRECTED to close this
case.
SO ORDERED this day of February 2011.
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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