The summary provides an update on recent case law from the Colorado Supreme Court and Colorado Court of Appeals in 3 sentences:
The Colorado Supreme Court interpreted the term "presently resides" in the Child Custody Act to mean domicile based on the totality of circumstances rather than physical presence. The Colorado Court of Appeals found that a "road rage" incident did not trigger uninsured motorist coverage and that the deadline for filing an interlocutory appeal could not be extended for carelessness. The Court of Appeals also ruled that Colorado's "double damage" statutes for unreasonable insurance claim denials can apply to acts occurring after the statutes' enactment, even if the underlying insurance claim arose earlier.
The document summarizes recent case law updates from the Colorado Supreme Court and Court of Appeals in 3 cases:
1) The Colorado Supreme Court interpreted the term "presently resides" in the Child Custody Act to mean domicile based on a totality of circumstances rather than physical presence.
2) The Court of Appeals found that petitioners missed the filing deadline for an interlocutory appeal and did not establish good cause for their late filing.
3) The Court of Appeals found that injuries from an assault following a "road rage" incident did not trigger uninsured motorist coverage because the assault broke the causal chain between use of the vehicle and injuries.
the Supreme Court has reversed the Court of Appeals in this case (and the companion Floyd case), ruling that an injured person is not entitled to reduce available liability coverage by the amount of a statutory medical lien in order to increase available UM benefits. The decision is attached. The court did not disturb the underlying rationale of Thurman and Toomer but simply distinguished hospital liens from the federal subrogation claims present in those cases.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
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 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.
This document summarizes your rights and responsibilities when moving household goods. It explains:
1. Movers must provide estimates and are responsible for loss or damage.
2. You should understand your mover's liability, get estimates from multiple movers, and be present for weighing.
3. Movers must deliver on agreed dates, offer dispute settlement programs, and not demand illegal COD fees.
Published September 2012 in The ESOP Association's ESOP Report
Steve Greenapple addresses breach of fiduciary duty and federal common law fraud by participants who transferred their 401(k) account balances to an ESOP, against the sponsor of the Plans, fiduciaries of the Plans and the ESOP's financial advisor.
The document summarizes recent case law updates from the Colorado Supreme Court and Court of Appeals in 3 cases:
1) The Colorado Supreme Court interpreted the term "presently resides" in the Child Custody Act to mean domicile based on a totality of circumstances rather than physical presence.
2) The Court of Appeals found that petitioners missed the filing deadline for an interlocutory appeal and did not establish good cause for their late filing.
3) The Court of Appeals found that injuries from an assault following a "road rage" incident did not trigger uninsured motorist coverage because the assault broke the causal chain between use of the vehicle and injuries.
the Supreme Court has reversed the Court of Appeals in this case (and the companion Floyd case), ruling that an injured person is not entitled to reduce available liability coverage by the amount of a statutory medical lien in order to increase available UM benefits. The decision is attached. The court did not disturb the underlying rationale of Thurman and Toomer but simply distinguished hospital liens from the federal subrogation claims present in those cases.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
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 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.
This document summarizes your rights and responsibilities when moving household goods. It explains:
1. Movers must provide estimates and are responsible for loss or damage.
2. You should understand your mover's liability, get estimates from multiple movers, and be present for weighing.
3. Movers must deliver on agreed dates, offer dispute settlement programs, and not demand illegal COD fees.
Published September 2012 in The ESOP Association's ESOP Report
Steve Greenapple addresses breach of fiduciary duty and federal common law fraud by participants who transferred their 401(k) account balances to an ESOP, against the sponsor of the Plans, fiduciaries of the Plans and the ESOP's financial advisor.
This newsletter discusses two cases related to insurance coverage. The first case involved a wrongful death claim where the insurer settled with one heir but was later sued by other unknown heirs. The court found the insurer was not protected by settling pre-litigation. Insurers should use genealogists to identify all heirs or have claimants file a lawsuit to receive protection. The second article summarizes various cyber risk insurance policies available to businesses to cover losses from hacking or security breaches. It notes various state and federal regulations regarding notification of privacy breaches.
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.
Seminar material that covered topics that as commercial general liability insurance coverage issues, duties of defense, indemnity, insurance debates, surety bonds, wrap insurance options and class action suits.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
This case concerns whether Speedster is fully liable for a car accident and whether Njuguna is entitled to damages. While Speedster admits liability for exceeding the speed limit, the court must determine if Njuguna was also negligent by not wearing a seatbelt. Prior case law established that damages should be reduced based on the claimant's share of responsibility. Here, Njuguna may be 20% or 25% responsible for failing to wear a seatbelt, so his damages would be reduced accordingly, though he is still entitled to claim damages from Speedster.
Under the Right Circumstances, an Insured Entitled to "Independent Counsel" i...NationalUnderwriter
Under the Right Circumstances, an Insured Entitled to "Independent Counsel" in California Can Retain More Than One Firm
by Carey B. Moorehead
In a case of first impression, a California district court has ruled that California law does not preclude an insured from
retaining multiple law firms as independent or Cumis counsel where the insurer is defending under reservation of
rights. The court’s ruling came in the case of Signal Products v. American Zurich Insurance Company, et al.
The Signal Products court was called upon to interpret California Civil Code §2860 in the context of cross-motions for summary judgment between American Zurich Insurance Company and its insured Signal Products, Inc., the defendant in a trademark infringement action. Zurich had agreed to defend Signal under reservation of rights and consented to Signal’s retention of independent counsel.
Life Insurer's Liability for Actions of Its Producer--Even before Producer's ...NationalUnderwriter
The Supreme Judicial Court of Maine has affirmed a lower court’s decision upholding the Maine Superintendent of
Insurance’s conclusion that Guarantee Trust Life Insurance Company (“GTL”) was accountable for violations of a number of Maine statutes by a company acting as GTL’s producer – even before the company’s formal appointment as GTL’s producer. As a result, the court upheld the Superintendent’s order that GTL pay a civil penalty of $150,000.
This document summarizes a court case from the Pennsylvania Superior Court regarding whether a defendant, Thomas Druce, should receive credit toward his sentence for time spent on bail pending appeal. While on bail, Druce was subject to electronic home monitoring and an overnight curfew. The court considered two issues: 1) whether Druce was entitled to credit for time spent on bail and 2) whether his sentence was illegal under Blakely v. Washington regarding judicial fact-finding of aggravating factors. The court affirmed the denial of credit for time on bail and considered the Blakely issue despite it being raised for the first time on appeal, as legality of sentence can be reviewed at any time.
This BP settlement notice was sent to only about 500,000 business owners and others who had filed claims with BP before the settlement. BP settlement includes all people, businesses and charities in Alabama, Mississippi, Louisiana, and western Florida. BP's Notice Administrator could have bought mailing lists and sent the notice to over a million businesses and charities that are class members that might have claims, but he did not. Sending notice by mail would cost BP money to send the notice, and likely increase the number and amount of claims filed. If you are a business or charity in Alabama, you may visit http://BPOilnews.com or http://BP-Settlement-News to fill out a form to obtain a free legal review of your potential right to collect money from the BP settlement.
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Inju...NationalUnderwriter
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Injury and Property Damage Coverages by Michael S. Levine and Matthew T. McLellan
Suit from ixmation against Switch Lighting, October 23, 2014katiefehren
This document is a memorandum opinion and order from a United States District Court case between Ixmation, Inc. and Switch Bulb Company regarding a letter of credit. Ixmation and Switch had entered into an agreement for Ixmation to manufacture a custom automated system, with payments secured by a letter of credit from Wells Fargo. However, before the project was completed, Switch told Ixmation to stop work and later executed an assignment for the benefit of creditors. Ixmation filed for arbitration and a temporary restraining order to prevent the letter of credit from expiring, and the court placed an equitable lien on the funds from the letter of credit to maintain the status quo until arbitration was concluded. Ixmation now seeks
The Supreme Court granted the petition of the Republic of the Philippines, represented by Insurance Commissioner Eduardo T. Malinis, to reverse the order of contempt issued by the Regional Trial Court against the commissioner. The trial court ordered the release of the security deposit held by the Insurance Commission from Capital Insurance and Surety Co. to satisfy a garnishment notice in favor of a single claimant, Del Monte Motors. However, the Supreme Court ruled that the security deposit is intended to answer for claims of all policyholders if the insurance company becomes insolvent, and cannot be garnished by a single claimant to the detriment of others. As the commissioner's refusal to release the funds was justified and in accordance with his authority to regulate
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
1. Dietl International Services (DIS) provides logistics services including customs brokerage, cargo transportation arrangements, and warehousing. DIS acts as an agent for customers and uses carriers, warehouses, and other intermediaries on customers' behalf.
2. DIS' liability is limited for loss, damage or delay of goods. DIS is not liable for acts outside its control such as weather or terrorism. Insurance coverage is not included in DIS' fees and must be requested separately.
3. The agreement establishes terms of payment, grants DIS liens on goods and insurance proceeds, and selects California law and forums for disputes. It remains effective until terminated with 30 days notice.
This document contains 30 multiple choice questions that appear to be from a law school final exam covering various topics in business law, including common law systems, agency authority in corporations, limited liability for LLCs, sole proprietorships, partnerships, alternative dispute resolution methods, duties of care for corporate directors and officers, products liability, contracts, employment law, property law, intellectual property, and business regulation including Sarbanes-Oxley. The questions test understanding of legal concepts and which choice best characterizes a given legal situation.
Dead Hand Change of Control Default Provisions PPT 3-25-15Kevin Miller
This document summarizes recent developments regarding dead hand change of control default provisions. It discusses the Healthways case in Delaware Chancery Court where the court found that lenders could potentially aid and abet fiduciary duty breaches by negotiating terms that create conflicts of interest for company directors. It also mentions several similar shareholder lawsuits filed against other companies and banks. The document reviews plaintiffs' attorneys fees awards in recent cases and potential alternatives for banks going forward regarding these contractual provisions. An appendix discusses precedent set in the Amylin and SandRidge cases regarding change of control provisions.
This newsletter summarizes recent court cases related to reinsurance:
1) The Third Circuit ruled that a reinsurer did not need to demonstrate prejudice from late notice of loss given by the reinsured in order to be relieved of indemnity obligations, applying New York law.
2) A New York federal court confirmed multiple arbitration awards in favor of a cedent, rejecting the reinsurer's arguments to vacate the awards.
3) A Wisconsin federal court transferred a dispute over arbitrator selection and consolidation to New York based on forum selection clauses in the reinsurance contracts.
This document is a motion for summary judgment filed by the defendants (Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Lashanda Adams) in a lawsuit brought by the plaintiff (Traian Bujduveanu). The defendants argue that: 1) the plaintiff cannot bring constitutional claims against Dismas Charities, a private entity, 2) the plaintiff cannot bring Bivens or 14th Amendment claims against the individual defendants who are private employees and not state actors, and 3) the plaintiff failed to state a claim for a 1st Amendment violation of his religious freedom rights. The defendants seek summary judgment on all of the plaintiff's claims.
Sherif Abdelgawad gave the opening keynote on worldwide ICT market dynamics. He discussed that the worldwide ICT market spends $3.4 trillion per year but 18% of projects are abandoned before production and 55% are challenged, wasting $1 trillion. Open source software has significantly lower defect densities than proprietary software, with the Linux kernel having 100-150 times fewer defects per line of code. Abdelgawad argued that the IT industry is moving away from product purchases towards subscription-based cloud services, so avoiding vendor lock-in through the ability to easily change vendors is increasingly important to control costs.
The survey found that US law firms project an average 3.2% increase in billing rates for 2010, with larger firms of 1,000+ lawyers anticipating a slightly higher average increase of 4%. Thirty percent of law firms indicated they would adjust rates primarily by timekeeper class, with the largest increase expected for associate rates, where 45.5% of firms anticipate a 4-6% increase. The survey polled 688 US law firms and received responses from 288 firms, including 45% of the top 250 firms.
This newsletter discusses two cases related to insurance coverage. The first case involved a wrongful death claim where the insurer settled with one heir but was later sued by other unknown heirs. The court found the insurer was not protected by settling pre-litigation. Insurers should use genealogists to identify all heirs or have claimants file a lawsuit to receive protection. The second article summarizes various cyber risk insurance policies available to businesses to cover losses from hacking or security breaches. It notes various state and federal regulations regarding notification of privacy breaches.
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.
Seminar material that covered topics that as commercial general liability insurance coverage issues, duties of defense, indemnity, insurance debates, surety bonds, wrap insurance options and class action suits.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
This case concerns whether Speedster is fully liable for a car accident and whether Njuguna is entitled to damages. While Speedster admits liability for exceeding the speed limit, the court must determine if Njuguna was also negligent by not wearing a seatbelt. Prior case law established that damages should be reduced based on the claimant's share of responsibility. Here, Njuguna may be 20% or 25% responsible for failing to wear a seatbelt, so his damages would be reduced accordingly, though he is still entitled to claim damages from Speedster.
Under the Right Circumstances, an Insured Entitled to "Independent Counsel" i...NationalUnderwriter
Under the Right Circumstances, an Insured Entitled to "Independent Counsel" in California Can Retain More Than One Firm
by Carey B. Moorehead
In a case of first impression, a California district court has ruled that California law does not preclude an insured from
retaining multiple law firms as independent or Cumis counsel where the insurer is defending under reservation of
rights. The court’s ruling came in the case of Signal Products v. American Zurich Insurance Company, et al.
The Signal Products court was called upon to interpret California Civil Code §2860 in the context of cross-motions for summary judgment between American Zurich Insurance Company and its insured Signal Products, Inc., the defendant in a trademark infringement action. Zurich had agreed to defend Signal under reservation of rights and consented to Signal’s retention of independent counsel.
Life Insurer's Liability for Actions of Its Producer--Even before Producer's ...NationalUnderwriter
The Supreme Judicial Court of Maine has affirmed a lower court’s decision upholding the Maine Superintendent of
Insurance’s conclusion that Guarantee Trust Life Insurance Company (“GTL”) was accountable for violations of a number of Maine statutes by a company acting as GTL’s producer – even before the company’s formal appointment as GTL’s producer. As a result, the court upheld the Superintendent’s order that GTL pay a civil penalty of $150,000.
This document summarizes a court case from the Pennsylvania Superior Court regarding whether a defendant, Thomas Druce, should receive credit toward his sentence for time spent on bail pending appeal. While on bail, Druce was subject to electronic home monitoring and an overnight curfew. The court considered two issues: 1) whether Druce was entitled to credit for time spent on bail and 2) whether his sentence was illegal under Blakely v. Washington regarding judicial fact-finding of aggravating factors. The court affirmed the denial of credit for time on bail and considered the Blakely issue despite it being raised for the first time on appeal, as legality of sentence can be reviewed at any time.
This BP settlement notice was sent to only about 500,000 business owners and others who had filed claims with BP before the settlement. BP settlement includes all people, businesses and charities in Alabama, Mississippi, Louisiana, and western Florida. BP's Notice Administrator could have bought mailing lists and sent the notice to over a million businesses and charities that are class members that might have claims, but he did not. Sending notice by mail would cost BP money to send the notice, and likely increase the number and amount of claims filed. If you are a business or charity in Alabama, you may visit http://BPOilnews.com or http://BP-Settlement-News to fill out a form to obtain a free legal review of your potential right to collect money from the BP settlement.
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Inju...NationalUnderwriter
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Injury and Property Damage Coverages by Michael S. Levine and Matthew T. McLellan
Suit from ixmation against Switch Lighting, October 23, 2014katiefehren
This document is a memorandum opinion and order from a United States District Court case between Ixmation, Inc. and Switch Bulb Company regarding a letter of credit. Ixmation and Switch had entered into an agreement for Ixmation to manufacture a custom automated system, with payments secured by a letter of credit from Wells Fargo. However, before the project was completed, Switch told Ixmation to stop work and later executed an assignment for the benefit of creditors. Ixmation filed for arbitration and a temporary restraining order to prevent the letter of credit from expiring, and the court placed an equitable lien on the funds from the letter of credit to maintain the status quo until arbitration was concluded. Ixmation now seeks
The Supreme Court granted the petition of the Republic of the Philippines, represented by Insurance Commissioner Eduardo T. Malinis, to reverse the order of contempt issued by the Regional Trial Court against the commissioner. The trial court ordered the release of the security deposit held by the Insurance Commission from Capital Insurance and Surety Co. to satisfy a garnishment notice in favor of a single claimant, Del Monte Motors. However, the Supreme Court ruled that the security deposit is intended to answer for claims of all policyholders if the insurance company becomes insolvent, and cannot be garnished by a single claimant to the detriment of others. As the commissioner's refusal to release the funds was justified and in accordance with his authority to regulate
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
1. Dietl International Services (DIS) provides logistics services including customs brokerage, cargo transportation arrangements, and warehousing. DIS acts as an agent for customers and uses carriers, warehouses, and other intermediaries on customers' behalf.
2. DIS' liability is limited for loss, damage or delay of goods. DIS is not liable for acts outside its control such as weather or terrorism. Insurance coverage is not included in DIS' fees and must be requested separately.
3. The agreement establishes terms of payment, grants DIS liens on goods and insurance proceeds, and selects California law and forums for disputes. It remains effective until terminated with 30 days notice.
This document contains 30 multiple choice questions that appear to be from a law school final exam covering various topics in business law, including common law systems, agency authority in corporations, limited liability for LLCs, sole proprietorships, partnerships, alternative dispute resolution methods, duties of care for corporate directors and officers, products liability, contracts, employment law, property law, intellectual property, and business regulation including Sarbanes-Oxley. The questions test understanding of legal concepts and which choice best characterizes a given legal situation.
Dead Hand Change of Control Default Provisions PPT 3-25-15Kevin Miller
This document summarizes recent developments regarding dead hand change of control default provisions. It discusses the Healthways case in Delaware Chancery Court where the court found that lenders could potentially aid and abet fiduciary duty breaches by negotiating terms that create conflicts of interest for company directors. It also mentions several similar shareholder lawsuits filed against other companies and banks. The document reviews plaintiffs' attorneys fees awards in recent cases and potential alternatives for banks going forward regarding these contractual provisions. An appendix discusses precedent set in the Amylin and SandRidge cases regarding change of control provisions.
This newsletter summarizes recent court cases related to reinsurance:
1) The Third Circuit ruled that a reinsurer did not need to demonstrate prejudice from late notice of loss given by the reinsured in order to be relieved of indemnity obligations, applying New York law.
2) A New York federal court confirmed multiple arbitration awards in favor of a cedent, rejecting the reinsurer's arguments to vacate the awards.
3) A Wisconsin federal court transferred a dispute over arbitrator selection and consolidation to New York based on forum selection clauses in the reinsurance contracts.
This document is a motion for summary judgment filed by the defendants (Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Lashanda Adams) in a lawsuit brought by the plaintiff (Traian Bujduveanu). The defendants argue that: 1) the plaintiff cannot bring constitutional claims against Dismas Charities, a private entity, 2) the plaintiff cannot bring Bivens or 14th Amendment claims against the individual defendants who are private employees and not state actors, and 3) the plaintiff failed to state a claim for a 1st Amendment violation of his religious freedom rights. The defendants seek summary judgment on all of the plaintiff's claims.
Sherif Abdelgawad gave the opening keynote on worldwide ICT market dynamics. He discussed that the worldwide ICT market spends $3.4 trillion per year but 18% of projects are abandoned before production and 55% are challenged, wasting $1 trillion. Open source software has significantly lower defect densities than proprietary software, with the Linux kernel having 100-150 times fewer defects per line of code. Abdelgawad argued that the IT industry is moving away from product purchases towards subscription-based cloud services, so avoiding vendor lock-in through the ability to easily change vendors is increasingly important to control costs.
The survey found that US law firms project an average 3.2% increase in billing rates for 2010, with larger firms of 1,000+ lawyers anticipating a slightly higher average increase of 4%. Thirty percent of law firms indicated they would adjust rates primarily by timekeeper class, with the largest increase expected for associate rates, where 45.5% of firms anticipate a 4-6% increase. The survey polled 688 US law firms and received responses from 288 firms, including 45% of the top 250 firms.
Metafore is one of Canada's largest IT solution providers with over 25 years of industry experience. It has over 1,000 associates working across 14 offices nationwide. Metafore offers a wide range of IT solutions including hardware and software asset management, support services, virtualization, security, and IT staffing. It aims to help clients optimize their IT infrastructure and reduce costs.
How do you design the future? This case study by one of our experts will show you how to design the future of any industry using Business Innovation Design.
How do you map your business model and business plan at the same time? BID Canvas visually maps the existing and future state of your business that can be viewed in a glance.
The document provides a summary of recent case law updates from the Colorado Supreme Court and Colorado Court of Appeals, as well as announcements from the US District Court of Colorado regarding electronic case filing requirements. Key cases summarized include the Colorado Supreme Court interpreting the term "presently resides" in the Child Custody Act, the Court of Appeals finding that a "road rage" incident did not trigger uninsured motorist coverage, and the 10th Circuit Court of Appeals applying the automatic bankruptcy stay to all appeals involving a debtor. The document also lists the current CDLA directors.
1) Mark Reckless is being sued for negligence by Marla Helpless stemming from a rear-end collision. Reckless argues he is not liable as he was adhering to the speed limit and maintaining a safe following distance when Helpless abruptly stopped.
2) Reckless contends that noneconomic damages should be apportioned among all potentially liable parties, including the unidentified drivers that contributed to the hazardous road conditions, according to proportion of fault, in line with California civil code.
3) Reckless asserts that Helpless did not take reasonable steps to mitigate damages by over-treating minor injuries for three years, and requests the court reduce damages accordingly.
Emergency Mitigation Measures and Repairs, Allegedly Faulty, Doom CoverageNationalUnderwriter
From FC&S Legal: Emergency Mitigation Measures and Repairs, Allegedly Faulty, Doom Coverage.
A federal district court has ruled that an insurer was not obligated to cover claims stemming from allegedly faulty
emergency mitigation measures and repairs made to a roof damaged by Hurricane Isaac.
The Case
Cedar Ridge, LLC, alleged that its Riverlands Shopping Center was damaged by Hurricane Isaac and that it contracted with Roof Technologies, Inc., to perform “emergency mitigation work,” which generally consisted of fastening tarps to Riverlands’ roof. Cedar Ridge then filed a claim with Landmark American Insurance Company and RSUI Indemnity Company (together, “Landmark”), which was denied on the ground that the emergency mitigation work had caused additional damage to Riverlands.
Cedar Ridge sued Landmark, which filed a complaint against Roof Tech, asserting that, “in the event [Landmark was] held liable to plaintiff for any of the claims asserted, third party defendant, Roof Technologies, Inc. [was] liable to [Landmark] for the damage it caused to the property at issue as a result of its defective workmanship and by the improper installation of tarps on the roof following Hurricane Isaac.”
Roof Tech moved for summary judgment.
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Da...NationalUnderwriter
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Damages in Bad Faith Case. (from FC&S Legal: The Insurance Coverage Law Information Center)
Recently, Division One of the Court of Appeals of Washington State affirmed a jury verdict awarding $13 million in damages to a passenger injured in a car accident, finding that the $4.15 million agreed amount of the covenant
judgment in the insurance bad faith case sets a floor, not a ceiling, on the damages a jury can award.
In Miller v. Kenny and Safeco Ins. Co.,[1] the Court of Appeals ruled on several additional issues on appeal including whether evidence of an insurance company’s loss reserves is properly admissible at trial.
Clarifying Bad Faith Jurisprudence in Virginia, Federal Court Recognizes Bad ...NationalUnderwriter
Clarifying Bad Faith Jurisprudence in Virginia, Federal Court Recognizes Bad Faith Claim Against First-Party Insurer by Michael S. Levine
In Great Am. Ins. Co. v. GRM Mgmt., LLC,[1] a federal district court denied an insurer’s motion to dismiss a bad-faith claim arising out of the insurer’s denial of its policyholder’s claim for property damage and loss of business income following the theft of rooftop air conditioning units from the policyholder’s hotel. The ruling is significant because it illustrates that Virginia law supports first-party bad-faith claims against insurers.
Clarifying Bad Faith Jurisprudence in Virginia, Federal Court Recognizes Bad-...NationalUnderwriter
Clarifying Bad Faith Jurisprudence in Virginia, Federal Court Recognizes Bad-Faith Claim Against First-Party Insurer
In Great Am. Ins. Co. v. GRM Mgmt., LLC,[1] a federal district court denied an insurer’s motion to dismiss a bad-faith claim arising out of the insurer’s denial of its policyholder’s claim for property damage and loss of business income following the theft of rooftop air conditioning units from the policyholder’s hotel. The ruling is significant because it illustrates that Virginia law supports first-party bad-faith claims against insurers.
Plaintiff Phillip Lee Walters filed a motion to remand a negligence lawsuit back to state court that was removed to federal court by defendants Samuel Patterson and Keen Transport based on diversity jurisdiction. The plaintiff argues that removal was improper because the defendants did not establish that the amount in controversy exceeds $75,000, as is required for diversity jurisdiction. The plaintiff notes that the complaint does not specify a damages amount and contends that the defendants rely only on unsupported assumptions to claim the threshold is met rather than providing evidence, as is required. The plaintiff requests that the case be remanded back to state court due to lack of federal jurisdiction.
Gaggero/Mooring/Walters/Praske/Chatfield/Sulphur County Records/Cases 5 jamesmaredmond
This first amended complaint objects to discharging the debtors from bankruptcy. It alleges that the debtors made false representations and concealed information to induce the plaintiff to lease them an equestrian facility. It alleges the debtors underreported rental income, failed to pay rent, abandoned the property, and engaged in delay tactics to avoid a judgment. The complaint objects to discharge based on allegations that the debtors concealed or transferred assets, made false statements, and failed to keep adequate records. It seeks to have the plaintiff's debt exempted from any discharge.
Judge Saylor Order in NECP MDL regarding Transfer of PI Cases to Boston mzamoralaw
This document is a memorandum and order from a federal district court judge on the trustee's motion to transfer various personal injury and wrongful death cases related to a 2012 fungal meningitis outbreak linked to contaminated drugs made by New England Compounding Pharmacy (NECC). The judge grants the motion in part, asserting jurisdiction over and transferring federal cases against NECC and its affiliates as well as state cases involving claims against NECC. However, the judge denies transferring state cases not involving NECC claims at this time due to jurisdictional uncertainties and federalism concerns.
BOOK BUSINESS LAW TEXT&EXERCISES 8TH EDITIONChapter 153. .docxsimonlbentley59018
BOOK "BUSINESS LAW TEXT&EXERCISES 8TH EDITION
Chapter 15
3.
Promises made in conspirator of marriage.
After twenty-nine years of marriage, Robert and Mary Lou Tuttle were divorced. They admitted in court that before they were married, they had signed a prenuptial agreement and had agreed on its general term that each would keep his or her own property and anything derived from that property. But a copy of the prenuptial agreement could not be found. Can the court enforce the agreement without a writing? Why or why not? (see the statues of frauds- writing requirements).
5.
The parol evidence rule.
Evangel Temple Assembly of God leased a facility from Wood Care Centers, Inc., to house evacuees who had lost their home in a hurricane. The lease agreement stated that Evangel could end the least at any time by giving notice and paying 10 percent of the rent that would otherwise have been paid over the rest of the term. The lease agreement also stated that if the facility did not retain its tax exemption which was granted to it on Evangel’s behalf as
a church Evangel could end the lease without making the 10 present payment. Is parol evidence admissible to interpret this lease? Why or why not? ( see the parol evidence rule).
Chapter 16
3.
Third Party beneficiary.
David and Sandra Dess contracted with Sirva Relocation, LLC, to assist in selling their home. In the contract, the Desses agreed to disclose all information about the property on which Sirva “and other prospective buyers may rely in deciding whether and on what terms to purchase the Property.” The Kincaids contracted with Sirva to buy the house. After closing, they discovered dampness in the walls, defective and rotten windows, mold, and other undisclosed problems. Can the Kincaids bring action against the Desses for breach of their contract with Sirva? Why or why not? ( see third party beneficiaries)
5.
Duties that cannot be delegated.
Bruce Albea Contracting, Inc., the contractor on a highway project, subcontracted the asphalt work to APAC-Southeast, Inc. the contract prohibited delegation without Albea’s consent. In mid-project, APAC delegated its duties to Matthews Contracting Co. Albea allowed Matthews to finish the work. But Alea did not pay APAC for its work on the projects, arguing that APAC had violated the anti-delegation clause, rendering their contract void. Is Albea correct? Explain. (see assignments and delegations).
Chapter 17
3.
Specific performance.
Russ Wyant owned Humble Ranch in South Dakota. Edward Humble was Wyant’s uncle and held a two-year option to buy a ranch from Wyant. The option included specific conditions. Once it was exercised, for instance, the parties had thirty days to enter into a purchase agreement and the seller could become the buyer’s lender by matching the terms of the proposed financing. After the option was exercised, Wyant and Humble engaged in a lengthy negotiations. Humble, however, did not respond to Wyant’s proposed purchase .
The document summarizes several recent changes to Colorado law:
1) New rules for calculating filing deadlines take effect in 2012 and practitioners should check for updates. 2) The Jurisdiction and Venue Clarification Act of 2011 changes federal removal and venue rules. 3) The Colorado Supreme Court adopted a new public domain citation format for its opinions to make them more accessible.
Statements Made by Insurance Company¹s Employees Can Be Used as Evidence That...NationalUnderwriter
Statements Made by Insurance Company¹s Employees Can Be Used as Evidence That It Must Provide a Defense.
by Graham C. Mills
The Court of Appeal of California, in North Counties Engineering, Inc. v. State Farm General Insurance Co., recently issued a significant opinion finding that statements and notes made by an insurance company’s employee can be used as evidence that an insurance company has a duty to defend its policyholder in a lawsuit. This opinion is important because insurance companies often will argue that such statements and notes cannot be used to establish a duty to defend because such duty only exists when the insurance policy provides coverage against a complaint’s allegations, regardless of what insurance company employees say or write.
This document is a certificate of service for a response filed by Allied Systems Holdings, Inc. and Allied Systems, Ltd. (L.P.) regarding a motion by petitioning creditors BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 Adviser L.L.C., and Spectrum Investment Partners LP to shorten time for a hearing on appointing a trustee. The certificate lists the parties that were served the response by mail or hand delivery on May 21, 2012.
AssignmentsCase file for report.docxPage 1 of 2 DOCUM.docxssuser562afc1
Assignments/Case file for report.docx
Page
1 of 2 DOCUMENTS
XIMPLEWARE CORP., Plaintiff, v.VERSATA SOFTWARE, INC.; TRILOGY DEVELOPMENT GROUP, INC.; AMERIPRISE FINANCIAL, INC.; and AUREA SOFTWARE, INC., Defendants.
No. C 13-05160 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2013 U.S. Dist. LEXIS 172411
December 6, 2013, Decided
December 6, 2013, Filed
CORE TERMS: discovery, expedited, preliminary injunction, restraining order, temporary, software, license, deposition, declaration, discovery requests, patent infringement, irreparable injury, inclusion, copyright infringement, good cause, irreparable harm, infringement, injunction, injunctive, subpoena, issuance, patent, Lanham Act, ex parte application, declaratory relief, narrowly tailored, overbroad, patch
COUNSEL: [*1] For XimpleWare Corp, Plaintiff: Ansel Jay Halliburton, Christopher Joseph Sargent, LEAD ATTORNEYS, Jack Russo, Computerlaw Group LLP, Palo Alto, CA.
For Versata Software, Inc., a Delaware corporation formerly known as Trilogy Software, Inc., Trilogy Development Group, Inc., a California corporation, Defendants: David C. Bohrer, LEAD ATTORNEY, Valorem Law Group, San Jose, CA; Alisa Anne Lipski, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., Houston, TX; Amir Alavi, PRO HAC VICE, AZA, Houston, TX; Benjamin Francis Foster, PRO HAC VICE, Ahmad, Zavitsanos, Anaipakos, Alavi Mensing, P.C., Houston, TX.
For Ameriprise Financial, Inc., a Delaware corporation, Ameriprise Financial Services, Inc., a Delaware corporation, Aurea Software, Inc., a Delaware corporation also known as Aurea, Inc., Defendants: David C. Bohrer, LEAD ATTORNEY, Valorem Law Group, San Jose, CA; Case Collard, Denver, CO; Gregory Scot Tamkin, Dorsey & Whitney LLP, Denver, CO.
JUDGES: SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.
OPINION BY: SUSAN ILLSTON
OPINION
ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND DENYING PLAINTIFF'S REQUES FOR EXPEDITED PRELIMINARY DISCOVERY
On December 4, 2013, the Court held a hearing [*2] on plaintiff's ex parte application for a temporary restraining order, request that the Court order defendants to show cause why a preliminary injunction should not issue, and request for expedited discovery. Counsel for plaintiff and defendants argued at the hearing. For the foregoing reasons, the Court DENIES plaintiff's applications for a temporary restraining order and order to show cause, and DENIES plaintiff's request for expedited preliminary discovery.
BACKGROUND
Plaintiff XimpleWare Corporation is a California corporation which develops, designs, and licenses software for data processing. Compl. ¶¶ 2-3. One of XimpleWare's software products is known as "VTD-XML", an XML or Extensible Markup Language program. Defendant Versata provides software to insurance companies; one of its products is Distribution Channel Management (DCM). Defendant Trilogy Development Group acquired Versata in 2006 and defendant ...
This document discusses pecuniary loss under Malaysian law. It outlines three categories of pecuniary loss - expenses incurred by victims, personal expenses of victims and their families, and business losses. However, business losses are generally not recoverable. Pecuniary loss in Malaysia includes expectation interest (loss of profits) and reliance interest (wasted expenditures). Expectation interest aims to put the plaintiff in the position they would have been in had the contract been performed, while reliance interest compensates for expenses incurred in reliance on the contract. There are exceptions where reliance interest cannot be claimed, such as when losses were due to terms agreed upon in the contract.
NY Appeals Court Finds Ambiguity as to Losses Resulting from Backup or Overfl...NationalUnderwriter
In an issue of apparent first impression in New York, an appellate court has found that an ambiguity existed in an
insurance policy as to losses resulting from a backup and/or overflow from sewers, drains, and/or plumbing systems.
Defendants dismas charties, inc., ana gispert, derek thomas and adams leshota...Cocoselul Inaripat
This document is a brief filed by defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Adams Leshota in response to a motion to compel filed by the plaintiff Traian Bujduveanu. The defendants argue that they have properly responded to the plaintiff's requests for production by agreeing to allow inspection of requested documents at their counsel's office. They also argue that some requested documents, such as surveillance video from relevant dates, do not exist. Finally, the defendants assert that the plaintiff's lawsuit and discovery requests appear aimed at exposing alleged corruption beyond the scope of this case, and such discovery should not be permitted.
The document is a brief filed by defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Adams Leshota (incorrectly identified) in response to the plaintiff's motion to compel discovery responses. The defendants argue that they have properly responded to the plaintiff's requests for production and interrogatories. They provided the requested documents and have no further obligation to compel. The defendants assert the plaintiff is improperly using discovery to harass the defendants and obtain irrelevant personal information. The defendants request the court deny the plaintiff's motion to compel and consider sanctions against the plaintiff.
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1. FEBRUARY 2012
INSIDE
CASE LAW UPDATE;
CO. Supreme Court &
Court of Appeals
Update THE CDLA
THE CDLA NEWSLETTER
HIGHLIGHTING IMPORTANT ISSUES FACING TODAYS DEFENSE ATTORNEYS
Announcement
The US District Court announced that commencing February 23, 2012
attorneys will be required to open civil cases in the District of Colorado
via ECF and provide payment via pay.gov. Other changes that will occur
QUICK LINKS; (some before February 23) include:
• The clerk’s office will no longer return your filed complaint via email. You will receive a Notice of Electronic Filing
(NEF) when your case is opened.
In Re Marriage of Brandt
• Summons forms, if provided, will be issued through ECF. You will receive a NEF with the summons and the
Farm Deals v. CO. Dept. of Rev. magistrate consent form. A new event has been created for filing the civil summons called “Summons
Request.” Please note you should use the national summons form (http://www.cod.uscourts.gov/
Roque v. Allstate Insurance Co. Forms.aspx), not the local form.
• The fee for filing an appeal may be paid on-line at the time of filing.
Rea V. Corrections Corp. of America
• A new event has been created for filing the corporate disclosure statement and entering corporate parents
Vaccaro v. American Family in CM/ECF.
TW Telecom V. Carolina Internet LTD More Information and Instructions for opening a new case will be posted at:
http://www.cod.uscourts.gov/CMECF/CMECF.aspx
Training for attorneys and staff: http://www.cod.uscourts.gov/CMECF/CMECF_TrnReg.aspx.
The ECF Help Desk can be reached at: 866.365.6381 or 303.335.2050
2. CASE LAW:
COLORADO SUPREME COURT
IN RE MARRIAGE OF BRANDT
Supreme Court interprets “presently resides” term in Child Custody Act (SC 01/23/12) The Uniform Child Custody
Jurisdiction and Enforcement Act provides that the issuing state has exclusive continuing jurisdiction over its child
custody until it, or another state, makes a determination that the child and the child’s parents do not “presently
reside” in the issuing state. The Supreme Court held that the statutory term “presently reside” is not equivalent to
“currently reside” or “physical presence,” the two notions on which the trial court based its order assuming juris-
diction to modify Maryland’s child custody decree. Instead, it held that a court’s determination should be based on
an inquiry into the totality of the circumstances that make up a person’s permanent home—“domicile”—to which
he or she intends to return to and remain and goes on to enumerate a laundry list of factors. l
COURT OF APPEALS
FARM DEALS, LLLP V. COLORADO to establish procedures for applying the interlocutory
appeals statute, § 13-4-102.1]. Though the trial court
DEP’T OF REVENUE certified the Order, it, too, was not filed within the
(CA 01/05/12). Petitioners filed an appeal in the trial deadline for filing with the court of appeals [fourteen
court challenging determinations by the Colorado De- days after the date of the certification]. The Court of
partment of Revenue denying income tax credits for Appeals found that the trial court had no authority to
conservation easements during the 2003 tax year. Pe- extend the fourteen-day deadline for filing a motion
titioners filed a motion requesting certification of the for certification of its Order. The Court also concluded
order for an interlocutory appeal under CRS § 13-4- that petitioners failed to establish good cause for their
102.1. Respondents opposed on numerous grounds, failure to meet the jurisdictional deadline of C.A.R.
including that it was not filed with fourteen days of 4.2(d). While C.A.R. 26(b) authorizes extending the
the Order being appealed from the date of the Order deadline for good cause due to excusable neglect, the
being appealed, as required by C.A.R. 4.2(c). [C.A.R. Court held the justification for late filing here demon-
4.2 was promulgated by the Colorado Supreme Court strated carelessness, not excusable neglect. l
3. COURT OF APPEALS cont.
ROQUE V. ALLSTATE INSURANCE CO.
Court of Appeals finds “road rage” incident does not trigger UM coverage
(CA 01/09/12). Plaintiffs, in one car, and Richard Terlingen, in his car, ex-
changed verbal hostilities while driving next to each other. When plain-
tiffs turned into a McDonald’s parking lot, Terlingen followed. He parked
directly behind plaintiffs’ car, preventing them from leaving the parking
lot. After all three of them exited their vehicles, Terlingen pulled a golf
club from the trunk of his car and struck plaintiffs with it, causing injuries.
Terlingen had home, umbrella, and automobile insurance policies with
American Family Mutual Insurance Company, which obtained a declara-
tory judgment in federal court that it was not required to cover Terlingen
for the injuries that he had intentionally caused. The trial court then found
that the uninsured motorist coverage in the Allstate policy covering the
plaintiffs’ vehicle did not cover the injuries that Terlingen had intention-
ally caused. On appeal, plaintiffs argued that their injuries arose out of
Terlingen’s use of his vehicle because, but for the road rage incident, the
altercation would not have occurred, and by parking closely behind them
to prevent them from driving out of the parking lot, Terlingen used his
vehicle to facilitate the assault. Allstate’s policy covers damages caused by
the owner or operator of an uninsured vehicle “aris[ing] out of the owner-
ship, maintenance, or use of an uninsured auto.” Here, exiting the car and
then engaging in intentional misconduct broke the requisite causal chain
between use of the vehicle and the injuries. Accordingly, because plain-
tiffs’ injuries did not result from use of a vehicle, they were not entitled to
UM coverage. l
REA V. CORRECTIONS CORPORATION OF AMERICA
Dismissal of inmate’s suit affirmed by Court of Appeals (CA 01/09/12). CCA operates a private prison under con-
tract with the Colorado Department of Corrections. According to Rea’s allegations, a CCA sergeant searched
his cell, seized documents about the unsolved murder of Jon Benet Ramsey, and started a rumor that Rea was
involved in that murder. Rea instituted the present action, alleging claims of defamation, failure to provide pro-
tection, discrimination, and tampering with legal mail and witnesses against CCA, the sergeant, and a CCA case
manager. The sergeant and the CCA case manager were never served with process in this matter, and the district
court dismissed the claims against CCA. The Court of Appeals first concluded sua sponte that named but unserved
defendants are not litigants for purposes of determining the appealability of an order under the final judgment
rule. Rea alleged that, instead of dismissing the case against CCA, the court should have granted him a default
judgment against CCA. However, CCA filed a motion for extension of time to file a responsive pleading in state
court and timely filed an answer in federal court, which continued with the case after it was remanded to state
court. Therefore, Rea was not entitled to a default judgment. Finally, Rea asserted that the judgment should be
reversed because the district court was biased and prejudiced against him. However, Rea waived any appearance
of impropriety because he did not seek to disqualify the judge in the district court, and Rea did not allege any facts
to support a claim of actual bias. l
4. COURT OF APPEALS cont.
VACCARO V. AMERICAN FAMILY curring after their effective date, even where the un-
derlying insurance claim arose before their enactment.
INSURANCE GROUP. Here, a reasonable jury could find that defendant en-
Court of appeals finds “double damage” statue can ap- gaged in new acts of unreasonable denial and delay af-
ply to claims arising before statute’s enactment (CA ter August 5, 2008, sufficient to impose liability under
01/09/12). A negligent tortfeasor injured plaintiff in a the statutes. Defendant also contended that there was
two-car accident in 2005. The tortfeasor had liability insufficient evidence of unreasonableness to support
insurance with policy limits of $25,000. Defendant’s plaintiff ’s statutory claim. Plaintiff provided evidence
policy insuring plaintiff provided UIM coverage up at trial beyond a merely subjective opinion on whether
to $100,000. Plaintiff settled his claim against the at- defendant acted reasonably, particularly that defendant
fault driver for the policy limit of $25,000. After de- requested—and then ignored—the IME report. It said
fendant received plaintiff ’s IME report on September that a reasonable jury could have found that defendant
22, 2008, which opined that extensive medical treat- refused to consider evidence showing plaintiff was en-
ment was necessary and causally related to the acci- titled to additional compensation. Defendant further
dent, defendant denied plaintiff ’s claim for $75,000 in contended that the trial court erroneously ordered it
UIM benefits. On appeal, defendant asserted that the to pay an additional $40,539 in prejudgment interest
trial court’s submission of plaintiff ’s statutory claim to because the jury awarded plaintiff the policy limit of
the jury was an unconstitutional retroactive applica- $75,000 in contract damages. Because it is part of the
tion of the statutes. The statutes, which took effect on compensation awarded for bodily injury, prejudgment
August 5, 2008, create a right of action separate from interest is within the bodily injury coverage of an in-
the common law tort of bad faith breach of an insur- surance policy and is subject to those policy limits.
ance contract. The COA held that although the stat- Therefore, defendant was not liable for prejudgment
utes may not operate retroactively, they may properly interest beyond the $75,000 awarded on plaintiff ’s con-
apply to new acts of unreasonable denial or delay oc- tract claim. l
10th CIRCUIT COURT OF APPEALS cont.
TW TELECOM HOLDINGS INC. V. protection. Prior precedent held that an appeal taken
by a bankruptcy debtor is not subject to the automatic
CAROLINA INTERNET LTD. stay in bankruptcy. Joining several other circuit courts
TW Telecom Holdings Inc. v. Carolina Internet Ltd. holding to the contrary, the Tenth Circuit overruled
Tenth Circuit overrules precedent and applies auto- its precedent and announced that from this date for-
matic stay to appeals. (10th Cir. 11/15/2011) (D.Colo.) ward, the automatic stay applies to stay all appeals in
(Gorsuch). Defendant appealed a judgment against proceedings that were originally brought against the
it entered in favor of plaintiff. While the appeal was debtor, regardless of whether the debtor is the appel-
pending, defendant filed for Chapter 11 bankruptcy lant or appellee. l
5. CDLA DIRECTORS
Brendan O. Powers, Esq.
President
Spies, Powers & Robinson
Teresa W. Seymour, Esq.
Vice President
Jones, Waters, Geislinger & Seymour
Dawn R. Kubik, Esq.
Treasurer
2012 Conference Chair
Jones, Waters, Geislinger & Seymour
Rob Jones, Esq.
Secretary
2013 Conference Chair
Paul Edwards & Associates
Jeffrey C. Ruebel, Esq.
Ex-Officio
Ruebel & Quillen
Caitlin S. Quander, Esq.
Legislative Director
Harris, Karstaedt, Jamison & Powers
John R. Chase, Esq.
At-Large Director
Trial Academy Chair
Montgomery, Kolodny, Amatuzio & Dusbabek
David M. McLain, Esq.
At-Large Director
Higgins, Hopkins, McLain & Roswell, LLC
Jody Haskins, Esq.
Young Lawyer Co-Chair
White & Steele
Jeff Garcia, Esq.
Young Lawyer Co-Chair
Diversity Chair
Patterson Nuss & Seymour
Heather A. Salg, Esq.
Ex-Officio /Communications Director
Harris, Karstaedt, Jamison & Powers
Bo Donegan, CPA
Executive Director
5761 South Elm St
Greenwood Village, Co 80121
303-263-6466