Law and Justice

Posts Tagged ‘Supreme’

The market for insurance in the US is somewhat unusual. In most every other line of business, companies are allowed to compete with each other across state lines. This helps to keep pricing and the quality of the product to higher levels and protect the consumer. But, the insurance industry is licensed and regulated state-by-state. There’s no such thing as a federal insurance policy. You have to buy a policy written by a company licensed in the state where you live. This is frustrating because, if you live near the border, your friends and colleagues at work probably tell you how little they pay or complain you have the better deals. Either way, it’s not very fair. Worse, the companies often decide not to set up in all fifty states, but pick and choose where they will operate. The result is that many states only have a small number of licensed insurance companies. Because there is no real competition, their premium rates tend to be high. This produces a big political divide. In Republican states, this is the free market at work and no intervention is necessary. If you do not like this, move to another state which has lower rates. In Democratic states, there is more interest in protecting consumer interests. Some states have intervened in their local markets to introduce “managed competition”. Needless to say, this has outraged the insurance industry and the insurance agents who survive on the commission earned from the insurers. There have been heated debates between the lawmakers. Where the local Department or Office of Insurance has produced new rules, they have been referred to the local courts. Who would have thought helping millions of average people to save money on their premium rates would produce so much heat. Anyway, the latest state to surface in this national debate is Massachusetts. In some ways, this state is also slightly nonstandard because of the dominance of the local agents who handle about 80% of the insurance business. Agents have more to lose if the markets are opened up to competition (and sites like this offer a direct line to insurance companies without having to go through an agent). Not surprisingly, they have been the fastest to the courts in the fight to protect their income. We have just had the decision of the Massachusetts Supreme Court on two rule changes made by the state’s Insurance Commissioner Nonnie Burnes (she has since retired to a university post). Let’s start with the effect of the move to open up the state to competition. Before the rule changes, there were nineteen insurers writing auto insurance policies. Twelve more companies have now entered the markets. In most cases, premium rates have been stable as insurers cut their costs and accepted a reduced profit. But agents have been hit because the opportunities to earn commission have been reduced. The Massachusetts Supreme Court has supported the reforms, finding the effect of managed competition is sufficiently beneficial that it should represent the prevailing public policy in the state. Put another way, the judges think the many consumers should pay less rather than the few corporate officers and stockholders earn excessive profits. Because one of the agent’s automatic rights to a commission has disappeared, they will be looking to recover their losses in other ways. There are two morals to this story. The first is that, if you want to find cheap auto insurance, support the lawmakers in those states who promise to introduce more competition into the car insurance market. Secondly, always get your auto insurance quotes through a site like this and avoid agents who earn commission.

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With mesothelioma lawsuits, as with all areas of law, persistence is key – on both sides. Case in point: Travelers Insurance Company, the primary insurer for Johns-Manville Corporation from 1947 – 1976.    

Once the largest miner and manufacturer of asbestos and asbestos products, Johns Manville Corp. filed for bankruptcy in the 1980s, after the dangers of asbestos were exposed to the public. In the process, a trust fund was created for future victims of its asbestos products and Travelers Insurance contributed $80 million at that time. Later, in 2003 and 2004 through pressure in the courts, Travelers agreed to $500 million in settlements with several groups of plaintiffs, with the stipulation that future asbestos lawsuits would be barred. The settlement was approved in 2006.  

But last year, this settlement was overturned by a U.S. Court of Appeals on the ground that the judge who approved the settlement lacked authority to bar new lawsuits. In June of 2009, the U.S.  Supreme Court reversed this decision in a 7 – 2 vote, bringing the status of the case back to the 2006 settlement. Writing for the majority, Justice David Souter said the judge’s orders barred state civil actions against Travelers based on allegations of its own wrongdoing while acting as Johns-Manville’s insurer, due to the finality of the 1986 orders that established the bankruptcy trust fund.

In this series of lawsuits persistence was key for both the plaintiffs and the defendants. The mesothelioma settlement for several groups of plaintiffs went from $80 to $500 million – a substantial victory! At the same time the persistence from the defendants led to the barring of future litigation. Agreeing to half a billion dollars in a settlement to secure no future lawsuits was considered “worth it.”

As with any area of law, precedence is key and the precedent set by this series of litigations gives hope to victims filing their own mesothelioma lawsuit. However, it also demonstrates that once a person is diagnosed with mesothelioma, legal action must be taken quickly, since sometimes, as in this case, the court grants that further suits against the same company will be barred.  

Until a case is settled by the supreme court, it can be overturned in a court of appeals, just as this case was. Your own mesothelioma settlement will take persistence from you and an experienced attorney.

The United States Supreme Court recently issued a decision that arguably raises the bar for a plaintiff to prevail on a claim of age discrimination under the Age Discrimination in Employment Act (ADEA). In Gross v. FBL Financial Services, Inc., the Supreme Court ruled that it is not enough to establish liability under the ADEA by proving that age was simply a motivating factor in the adverse employment decision. Rather, in order to prevail, a plaintiff must show that his or her age was the “but for” cause of the challenged adverse employment action. That is, age must be “the reason” that the employer decided to act.

The Court’s decision is a significant departure from the law applicable to Title VII claims, in which mixed-motive claims are specifically allowed. A Title VII plaintiff can prove intentional discrimination by proving that a characteristic protected by Title VII, such as race, was one “motivating factor” in the adverse employment action. Given such a showing, liability is established, and the employer may only limit the available remedies if the employer can show that it would have taken the same adverse employment action regardless of age.

Although the Supreme Court’s decision appears to lighten the risk of liability for employers, managers are still wise to base employment decisions on objective, non-discriminatory facts. ELI®’s flagship harassment and discrimination training program, Civil Treatment® for Managers, teaches participants about relevant workplace issues, including fair employment practices and documentation. To learn more about ELI’s catalogue of programs, visit www.eliinc.com.

About ELI®

Headquartered in Atlanta, ELI specializes in harassment and sexual harassment training, discrimination training, wage and hour compliance training, union avoidance training, and other kinds of workplace training. For more information, visit the ELI website at www.eliinc.com.

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The U.S. Supreme Court recently ruled against Wyeth Pharmaceuticals in a case which will seriously impact the future of pharmaceutical injury litigation in our country. The ruling bolsters the rights of consumers to receive the compensation they deserve when they have suffered a serious illness or dangerous condition as the result of using a pharmaceutical product.

Wyeth v. Levine

In Wyeth v. Levine, the Supreme Court upheld a $6.7 million award by a jury in a Vermont state court to Diana Levine, a musician who lost her arm as a result of taking Phenergan, an anti-nausea medication manufactured by Wyeth.

Doctors administered Phenergan to Levine via injection, a method that brings quick results but carries serious risks. The injection accidentally hit an artery, causing Levine to develop gangrene. Doctors were forced to amputate her arm as a result.

Levine claimed that Wyeth failed to provide a strong enough warning about the risks associated with this particular delivery method of Phenergan. Had she received an appropriate warning, she would have opted for an alternative delivery method in order to avoid jeopardizing her career as a musician.

Wyeth’s attorneys claimed that the company complied with all federal laws when creating the instructions and warnings for Phenergan. They also argued that since the drug had received FDA approval, Wyeth should not be held liable for damages because federal approval preempts an injured victim from being able to sue for damages in a state court.

The Supreme Court rejected this reasoning and ruled that pharmaceutical companies will not be able to receive protection from lawsuits on the basis of preemption arguments. Their decision has provided hope to many consumers who have suffered pharmaceutical injuries and are in need of compensation to help shoulder the financial burden of increased medical expenses and lost wages.

Defending the Rights of Injured Consumers

Unfortunately, the FDA approval process for pharmaceutical products is not perfect. While they rigorously test drugs before approving their release on the market, it is impossible to adequately identify all potential side effects, especially long term side effects, in the testing phase of experimental drug treatments. While the pharmaceutical companies should be responsible for exhaustively evaluating the safety of their new products before presenting them to the FDA for approval, a desire to boost profits often takes priority over guaranteeing the safety of their consumers. Therefore, it is important that our legal system maintains avenues for injured consumers to hold pharmaceutical companies accountable for their negligent actions.

Due to the complex nature of the laws governing these lawsuits, it is important to be represented by an experienced pharmaceutical liability attorney if you have suffered an injury from taking a defective drug.

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law. This Act outlaws “discrimination in compensation” which is broadly defined to include wages and employee benefits. The Ledbetter Act, by legislation, overturns the U.S. Supreme Court’s May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. That decision required workers to file charges on a pay discrimination claim within the first six months of receiving their first discriminatory paycheck.

Ms. Ledbetter was a longtime supervisor at a Goodyear tire plant in Alabama. When she discovered that she was paid significantly less than male supervisors, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) for gender-based pay discrimination under Title VII. Ms. Ledbetter won in the trial court. However, on appeal, the U.S. Supreme Court dismissed Ms. Ledbetter’s claims. It held that, although there was unlawful discrimination, Ms. Ledbetter failed to timely file her Charge of Discrimination because she did not file within 180 days of the first time her paycheck was less than her male counterparts. The Supreme Court took this position even though Ms. Ledbetter was not aware of the discrimination during this time period and, accordingly, it would have been impossible for her to meet this standard.

The Ledbetter Act fixes this widely criticized decision which, in effect, prevented many injured employees from exercising their civil rights. The new Act adopts a “pay-check accrual” test that had been used by many EEOC offices prior to the Supreme Court decision. This provides a new statute of limitations which makes clear that each new paycheck is a violation of law if it results “in whole or in part” from a discriminatory pay decision in the past. Employers will be liable for damages for discriminatory pay practices for the two years preceding the filing of the EEOC Charge of Discrimination.

The new Act actualizes the promise of providing a level playing field by requiring that employers establish compensation systems that are color and gender blind and gives employees the means to challenge employers that do not play by these rules. This new legislation will result in the increase the filing of wage discrimination claims because it opens the door that had been slammed shut by the U.S. Supreme Court decision. Notably, in Michigan, employees have 300 days to file with the EEOC. Smart employers will examine their compensation practices to assure that they are non-discriminatory and reward equal work with equal pay.

As in any empoloyment law case, it is in your best interest to contact an employment discrimination lawyer for professional legal assistance.

On November 5, 2009 , the Supreme Court of Virginia issued a significant opinion concerning tort law in Virginia.  In Kellermann v. McDonough, Record No. 081718 (Va. filed November 5, 2009), the Court expressly held for the first time that “when a parent relinquishes the supervision and care of a child to an adult who agrees to supervise and care for that child, the supervising adult must discharge that duty with reasonable care.”  Id. at 8-9.  The Court ruled that a common law tort action against a husband and wife survived the pleadings stage in a claim which arose out of the death of a 14-year old girl who was staying with them temporarily, and who was killed while riding in a car driven by an unrelated 17-year old boy.

In Kellermann, the plaintiff administrator of an estate filed a wrongful death action against the defendant husband and defendant wife with whom the decedent, who was 14 years old, was staying temporarily.  The defendants had asked the decedent’s parents if the decedent, who had moved with her family to North Carolina previously, could stay with them in Virginia for a day or two.  The defendants’ daughter, a former classmate, was having problems, and the defendants thought that her situation might improve if she spent some time with the decedent.  The decedent’s father drove the decedent to meet the defendant wife and her daughter at a place roughly equidistant from their respective homes in North Carolina and Virginia.  Upon meeting the defendant wife and her daughter, the decedent’s father expressly told the defendant wife that the decedent was not to be driven by inexperienced or young male drivers.  The defendant wife agreed,  and indicated she would take good care of the decedent.

Later that day, the defendant wife dropped off her daughter and the decedent at a mall.  At the mall, the girls met a 17-year old boy who was the defendants’ daughter’s friend, another male friend, and a female friend, and they all attended a movie.  The 17-year old boy had a reputation for “street racing”.  He had been stopped by police previously for speeding in excess of 20 miles per hour over the speed limit, and he may have allowed the defendants’ daughter, who was 14 years old, to drive his car.  After the movie, the defendants’ daughter called her mother and discussed riding home with the 17-year old boy.  The defendant wife either instructed or permitted all three girls to go home with the 17-year old boy.  The decedent and her female friend, however, did not want to ride home with the 17-year old boy.  After learning about the defendant wife’s instructions, the decedent and her female friend separated from the others.  After unsuccessfully trying to reach the female friend’s father, mother, brother and one other person in an effort to find a ride home, the decedent and the female friend reluctantly got into the 17-year old boy’s car.  

The 17-year old boy drove wildly.  The decedent and the female friend begged the 17-year old boy to slow down and let them out.  The decedent sent a text message to a friend in which she said she wanted to go home and get away from the “guys, and that she feared she would die”.  She also said the guys were planning on street racing.  The 17-year old boy ultimately lost control of his car while travelling in excess of 77 miles per hour, skidded off the road, and slammed into a tree.  The decedent was critically injured and died the next day.  At the hospital, the defendant wife repeatedly told the female friend’s parents that she was afraid she would be sued for instructing the girls to go home in the 17-year old boy’s car, in violation of  the decedent’s father’s instructions.  

The trial court sustained a demurrer by the defendants which asserted, among other things, that the defendants owed no duty in tort to the decedent, and dismissed the case.  The plaintiff appealed.

On appeal, the Supreme Court of Virginia reversed in part, holding that the plaintiff had pleaded sufficient facts to support a claim that the defendant wife had assumed a specific duty to provide care and protection to the decedent.  However, the Court held that the Complaint failed to allege sufficient facts to support such a claim against the defendant husband, noting that he was not present when his wife assumed the duty to exercise reasonable care to prevent the decedent from riding in cars driven by inexperienced or young male drivers.  Additionally, the Court ruled that the defendants did not owe a duty to the decedent to exercise reasonable care in controlling the conduct of third parties to prevent her from harm.  The Court noted that as a general rule, a person does not have a duty to protect another from the conduct from third persons unless a “special relationship” exists between a defendant and a plaintiff.  Examples of such a special relationship include the relationship between a common carrier and its passenger, a business proprietor and its invitee, an innkeeper and its guests, and an employer and employee under certain circumstances.  The Court noted that this list was not exhaustive, but declined to expand the list to include an adult who agrees to supervise and provide care to a minor.  Additionally, the Court held that the 17-year old boy’s negligence was not a superseding act sufficient to extinguish the defendants’ potential liability as a matter of law, ruling that negligence and proximate cause could be questions of fact for the jury.      

However, the Court went further.  Even though the Court recognized that an adult who agrees to supervise and care for a child is not an insurer of the child’s safety, the Court held that the complaint had alleged sufficient facts to state claims against both the defendant husband and the defendant wife based on a common law duty to exercise reasonable care in supervising a child.  Recognizing the potentially broad implications of the majority decision, extensive concurring and dissenting opinions were authored by two justices, who concurred with the majority decision except for the holding that an adult supervising the child of another has a common law duty to exercise reasonable care with regard to that supervision.

Kellermann involves significant issues which may impact the insurance industry.  We may well see an increase in claims involving “negligent supervision”, particularly against insureds under homeowners’ policies of insurance.  Additionally, in cases where a child is making a claim against an insured who is not the supervising adult of the child, the Kellermann decision potentially might be used to support the affirmative defenses of the contributory negligence of a parent in caring for the child, or the intervening negligence of a supervising adult who is not a parent.  Similarly, the Kellermann decision might be used to support a subrogation action against an adult or parent who negligently supervises a child.

As indicated above, the facts as pleaded by the plaintiff in Kellermann were somewhat compelling, as illustrated by the fact that all justices agreed that the plaintiff had stated a cause of action based on the defendant wife assuming a specific duty to care for and protect the decedent.  We will have to wait and see how trial judges and the Supreme Court of Virginia treat future cases with less compelling facts.  It should be noted that there are older Virginia cases in which the Supreme Court of Virginia seemed reluctant to find a parent contributorily negligent in supervising a child.  The facts in these older cases are less compelling than the facts presented to the court in Kellerman, and these older decisions might be used in future Kellermann–type cases to argue that the supervising adult did not breach a duty to supervise.  Alternatively, reconciling these older cases with the Kellermann decision, the Kellerman decision might be used in the future to expand the circumstances under which a parent may be found contributorily negligent for the negligent supervision of a child.  

In ruling on future Kellermann-type claims and issues, the factors a court might consider in making its  determination could include, but would not be limited to, the following:

1.    The circumstances under which the supervising adult undertook the care of the child (i.e., whether the supervising adult invited the child to stay with him or her, or the supervising adult was asked by the child’s parent to care for the child, etc. )
2.    Any specific instructions or other communications between the supervising adult and the child’s parents regarding the care of the child.
3.    The time period that the supervising adult was to care for the child.
4.    The age, experience and maturity of the child.
5.    Any instructions given by the supervising adult to the child.
6.    The proximity of the supervising adult to the child at the time the child is harmed.
7.    The circumstances under which the child was harmed.

M/s Entertainment Network (India) owner of FM Radia “Radio Mirchi” Ltd filed an appeal in the Supreme Court against M/s Super Cassette Industries Ltd owner of “T-Series” brand.

The matter involved interpretation of Section 31 of the Copyright Act, 1957.

On applications of various Radio Stations for grant of compulsory license to all the radio stations, the Copyright Board at Hyderabad in terms of Section 31(1)(b) of Copyright Act, the Board vide its judgement dated 19.11.2002 fixed the standard rate of payment for a period of two years.  Super Cassettes was not a party therein. The Board fixed royalties initially for a period of two years. An appeal there against was preferred before Bombay High Court.

Meanwhile on 28.1.2003, the appellant filed an application before the Copyright Board at Delhi for grant of compulsory licence in terms of Section 31(1)(b) of the Act against Super Cassettes i.e. respondents. The respondents filed an objection contending that as the suit for infringement was pending before the Delhi High Court, no application for compulsory license could be entertained. The High Court, on an application filed by the appellant, clarified that the respondent was free to canvas its submissions before the Copyright Board that the person infringing the Copyright should not be granted compulsory license. The Board directed the parties to come with their respective witnesses. However, when respondent intended to present oral evidence, it was declined and application was allowed granting a compulsory license to Appellant.

Appellant filed an appeal against the said order before the Bombay High Court questioning the rates of compensation only and was tagged with various other appeals filed against the order dated 19.11.2002 passed by the Copyright Board at Hyderabad. Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible

Respondents preferred two-fold appeals before the Delhi High Court and by judgment dated 30.6.2004, the respondent’s appeal was allowed remitting the matter back to the Copyright Board to reconsider the application of the appellant for grant of compulsory license under Section 31 of the Act after giving adequate opportunity to the parties to adduce evidence and to dispose of the same by a reasoned order. The High Court furthermore directed that the appellant must file an undertaking that it would not broadcast the sound recordings of the respondent. Against said order the present appeal was filed before the Supreme Court of India.

The supreme Court has to deal with two judgments one from the Bombay High Court and another from the Delhi High Court. Whereas the Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible; the Delhi High Court held otherwise.

The Supreme Court vide its judgement dated May 16, 2008 held that as it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses. Supreme Court was of the opinion that the order of the Board should be set aside and the matter be remitted to the Board again for the consideration of the matter afresh on merit and on those terms appeal was allowed.

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In the current Supreme Court session, two cases dealing with critical immigration issues will be included in the docket. These two cases that will affect the immigrants significantly will be on the connection between the criminal justice system and immigration, and immigrants’ access to federal court review. The key issue that both these cases present to the Supreme Court is that, immigrants be given fair process as well as an opportunity to be heard.

The first case, Padilla v. Kentucky presented on October 13, focuses mainly on the role of lawyers in protecting the rights of immigrants. The Supreme Court will decide if a criminal defense attorney is obliged to counsel foreign-born defendants on the effect of a criminal case on their immigration case. It will also decide if the defendants can take corrective action if defense attorneys offer incorrect advice.

The second case, Kucana v. Holder, set for argument on November 10 also deals with problems relating to US immigration. The main issue here is immigrants’ access to federal court review if there is an error in the government decision-making on immigration problems. This case will determine if the circuit courts have the authority over certain decisions like motions to reopen that are made by the Board of Immigration Appeals.

Beth Werlin, attorney at AILF’s Legal Action Center, thinks that the Supreme Court should be compelled to rule in favor of the plaintiffs in both these cases keeping in mind the fundamental principles of fairness. As it can result in deportation and permanent banishment from the U.S., these cases need to be carefully considered by the Supreme Court to affirm that the immigrants get a fair process.

There is also the concern that an adverse decision taken by the Supreme Court might result in the reversal of favorable decisions from other courts. This critical immigration issue is likely to be resolved by the decision of the Supreme Court for all the federal courts.

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