Latest 12 Cases This Week: Oakley v. Dolan (2d Cir.), Hirchak v. W.W. Grainger, Inc. (8th Cir.), LaCourse v. Defense Support Services LLC (11th Cir.)

Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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Oakley v. Dolan

Court: US Court of Appeals for the Second Circuit

Docket: 20-642

Opinion Date: November 16, 2020

Judge: Jon O. Newman

Areas of Law: Personal Injury

The Second Circuit reversed in part the district court's dismissal of plaintiff's amended complaint, alleging claims of unreasonable force applied by security personnel endeavoring to remove a plaintiff, a former professional basketball player and spectator, from Madison Square Garden. The court held that plaintiff's allegations sufficed to defeat a motion to dismiss the assault and battery claims in the amended complaint. In this case, plaintiff alleges that he was "thrown to the ground" by actions that "greatly exceeded the amount of force that was necessary" and "clearly exceeded the bounds of reasonable behavior," and that he "has suffered and continues to suffer harm." The court explained that the reasonable inference to be drawn is that plaintiff has been subjected to an unreasonable amount of force. The court reversed as to the causes of action for assault and battery and affirmed as to other causes of action in a summary order filed this date, remanding for further proceedings.

Hirchak v. W.W. Grainger, Inc.

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2642

Opinion Date: November 17, 2020

Judge: Raymond W. Gruender

Areas of Law: Personal Injury

Plaintiff and his wife filed claims of negligence and failure to warn against Grainer, a distributor of industrial equipment, and its subsidiary, Dayton, after plaintiff was injured by a web sling at work. The Eighth Circuit affirmed the district court's grant of summary judgment for defendants, holding that the district court did not abuse its discretion by excluding plaintiff's expert's opinion that the subject sling was a Grainger-distributed Juli sling. In this case, the district court concluded that the expert's report was inadmissible because his opinion that the subject sling was a Grainger-distributed Juli sling was based on insufficient facts. Without the expert's report, plaintiff failed to present sufficient evidence that defendants supplied the sling to the employer in order to defeat summary judgment.

LaCourse v. Defense Support Services LLC

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-13883

Opinion Date: November 17, 2020

Judge: Newsom

Areas of Law: Admiralty & Maritime Law, Personal Injury

Plaintiff filed a wrongful death action alleging that PAE failed to properly service and maintain the F-16 that her husband was flying when it crashed into the Gulf of Mexico. The district court granted summary judgment for PAE. The Eleventh Circuit agreed with the district court that the Death on the High Seas Act does not require a maritime nexus and that the Act applies whenever a death occurs on the high seas. The court held that the Act governs plaintiff's action; the Act provides plaintiff's exclusive remedy; and the Act preempts plaintiff's breach-of-warranty and breach-of-contract claims. The court also held that PAE is entitled to protection pursuant to the government-contractor defense. In this case, plaintiff failed to produce evidence sufficient to create a genuine issue of material fact that PAE violated government procedures. Accordingly, the court affirmed the district court's grant of summary judgment in favor of PAE.

ACW Corporation v. Maxwell

Court: Delaware Supreme Court

Docket: 302, 2019

Opinion Date: November 18, 2020

Judge: Vaughn

Areas of Law: Civil Procedure, Insurance Law, Personal Injury

Appellants ACW Corporation (a.k.a. Arby’s, (Arby’s)) and Eastern Alliance Ins. Co., as Subrogee of Shanara Devon Waters (“Waters”), appealed the grant of summary judgment in favor of Appellees, Christopher Maxwell (“Maxwell”) and Donegal Mutual Ins. Co. (a.k.a. Donegal Ins. Group). Eastern Alliance was Arby’s’ workers’ compensation carrier. It paid Waters, an Arby’s employee, a $12,500 commuted, lump-sum workers’ compensation benefit to settle her workers’ compensation claims for injuries she received in a work-related motor vehicle accident caused by Maxwell. Arby’s and Eastern Alliance then brought this suit against Maxwell and his auto insurer, Donegal, under 19 Del. C. 2363, claiming that they were entitled to recover the $12,500 lump-sum payment from them. Maxwell and Donegal denied liability, though they acknowledged that under the Workers’ Compensation Act Arby’s and Eastern Alliance could assert a claim against Maxwell for damages that Waters would be entitled to recover against Maxwell in an action in tort. They argued, however, that Maxwell was not liable for the lump-sum payment because it was a settlement of potential or future workers’ compensation claims and did not include any damages that Waters would have been entitled to recover against Maxwell in an action in tort. Arby’s and Eastern Alliance argued that 19 Del. C. 2363(e) allowed them to recover from Maxwell “any amounts paid or payable [to Waters] under the Workers’ Compensation Act” in connection with the Maxwell accident, and that the lump-sum benefit was an amount paid to Waters under the Act. The Superior Court agreed with Maxwell, and after finding that Arby’s and Eastern Alliance failed to offer evidence that any of the $12,500 lump-sum benefit was for damages which Waters would be able to recover in a tort action against Maxwell, granted summary judgment in Maxwell’s and Donegal’s favor. Finding no reversible error in that judgment, the Delaware Supreme Court affirmed.

Ewing v. Westport Ins. Co., et al.

Court: Louisiana Supreme Court

Docket: 2020-C-00339

Opinion Date: November 19, 2020

Judge: Johnson

Areas of Law: Civil Procedure, Insurance Law, Legal Ethics, Personal Injury, Professional Malpractice & Ethics

The Louisiana Supreme Court granted this writ application to determine whether “collectibility” was a relevant consideration in a legal malpractice action. Specifically, the issue presented was whether plaintiff’s damages in this legal malpractice action were limited to the amount she could have actually collected on a judgment against the tortfeasor in the underlying lawsuit. Elaine Ewing was injured in an automobile accident in 2015, when her vehicle was hit by a vehicle driven by Marc Melancon. Her counsel failed to forward the original petition for damages within seven days as required by La. R.S. 13:850. The original petition was filed on April 22, 2016, after the one-year prescriptive period had passed. Ms. Ewing’s suit was dismissed on an exception of prescription. Ms. Ewing subsequently filed a legal malpractice action against her attorney and Westport Insurance Corporation, counsel's malpractice insurer. Defendants filed a motion for partial summary judgment asserting the court should apply the “collectibility rule.” Defendants alleged Ms. Ewing’s recovery could be no greater than her potential recovery in the underlying personal injury lawsuit, and recovery in this case should have been capped at Mr. Melancon’s insurance policy limits. The Supreme Court held that proof of collectibility of an underlying judgment was not an element necessary for a plaintiff to establish a claim for legal malpractice, nor could collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.

Cleveland v. Advance Auto Parts

Court: Supreme Court of Mississippi

Citation: 2018-CT-01659-SCT

Opinion Date: November 19, 2020

Judge: James W. Kitchens

Areas of Law: Civil Procedure, Insurance Law, Labor & Employment Law, Personal Injury

After suffering two work-related injuries, Sheree Cleveland settled her workers’ compensation claims with Advance Auto Parts and its workers’ compensation insurance carrier, Indemnity Insurance Company of North America. The Workers’ Compensation Commission approved the settlement. Approximately one month later, the Employer/Carrier filed a Form B-31 indicating the last payment had been made. More than a year after that, Cleveland filed a motion asserting that the Employer/Carrier had not paid all compensation due under the settlement and that two medical bills remained outstanding. The Commission found that, because a one-year statute of limitations had expired, it lacked jurisdiction to enforce its order approving the settlement agreement. Cleveland appealed, and the Court of Appeals reversed, questioning whether the one-year statute of limitations applied to the claim. But instead of answering that question, the Court of Appeals found that the Employer/Carrier had been estopped from asserting a statute of limitations defense because it had agreed to pay the outstanding bills and had represented to the administrative law judge that it would do so. Further, the Court of Appeals also found Cleveland's contact with the Employer/Carrier within the limitations period tolled the statute of limitations, if, in fact, it applied. The Mississippi Supreme Court affirmed, but for different reasons than the appellate court. The Supreme Court determined the statute of limitations did not apply to Cleveland's motion for enforcement of the settlement order, therefore, her motion was timely filed.

Ilercil v. Williams

Court: Supreme Court of Mississippi

Citation: 2019-CA-00527-SCT

Opinion Date: November 19, 2020

Judge: Ishee

Areas of Law: Civil Procedure, Medical Malpractice, Personal Injury

James Williams suffered a severe brain injury from complications following cervical spine surgery. A lawsuit was brought against the hospital and the surgeon for medical malpractice, which included a claim for wrongful death after Williams died. Dr. Orhan Ilercil was ultimately found to be 15 percent responsible for Williams’s injuries and death, which amounted to a judgment against him for $205,800. Dr. Ilercil appealed, contending, among other things, that the trial court erred by refusing to give an intervening/superseding-cause instruction. To this, the Mississippi Supreme Court agreed, reversed judgment and remanded for a new trial.

WSI v. Oden

Court: North Dakota Supreme Court

Citation: 2020 ND 243

Opinion Date: November 19, 2020

Judge: Jon J. Jensen

Areas of Law: Government & Administrative Law, Labor & Employment Law, Personal Injury

Chris Oden appealed a judgment entered against him in a collection action after the district court granted summary judgment in favor of the State, through Workforce Safety and Insurance, (“WSI”). In May 2010, Oden was injured in Missouri while employed by Minot Builders Supply Associates as a truck driver. After review, the North Dakota Supreme Court concluded the court did not abuse its discretion in denying Oden’s motion to dismiss for insufficient service of process, and did not err in granting summary judgment to WSI.

Mader v. Duquesne Light

Court: Supreme Court of Pennsylvania

Docket: 33 WAP 2019

Opinion Date: November 18, 2020

Judge: Debra McCloskey Todd

Areas of Law: Civil Procedure, Personal Injury, Utilities Law

In September 2012, Steven Mader was working on a project involving repairs to a chimney, fireplace, and front stoop of a home in the North Hills of Pittsburgh, Pennsylvania. After Mader completed the project and his crew was cleaning the premises, his customer asked if he would check the gutters of the home to see if any mortar from the chimney repair had washed into the gutters during a recent rainstorm. Mader, after checking the gutters, was returning to his truck with the ladder. Mader had not noticed that there was an electrical power line only 11 feet from the customer’s home. The top of the ladder made contact with the power line and 13,000 volts of electricity ran down the ladder and through Mader’s body. Mader survived, but had sustained significant injuries to his feet and arms. Mader was eventually able to return to work, but closed his business for good following his final surgery. In April 2013, Mader sued Appellee Duquesne Light Company, the owner of the power line the ladder came into contact with, in the Allegheny County Court of Common Pleas. Mader alleged that Duquesne Light’s negligence in maintaining the electric lines too close to the ground caused his injuries and that Duquesne Light acted with reckless indifference to his safety; he also sought punitive damages. At the conclusion of a trial by jury, Duquesne Light was found to be 60% negligent and Mader was found to be 40% negligent for his injuries. Mader filed a motion for post-trial relief requesting a new trial on the issue of damages. Duquesne Light acknowledged that Mader was entitled to a new trial on damages for pain and suffering until the date his wounds healed, and disfigurement. It denied, however, that Mader was entitled to a new trial on future noneconomic damages or either past or future lost earnings. Nevertheless, the trial court granted Mader’s request for a new trial on all damages. The Pennsylvania Supreme Court agreed with the superior court that the trial court abused its discretion in ordering a new trial on all damages.

McMichael v. McMichael

Court: Supreme Court of Pennsylvania

Docket: 50 & 51 WAP 2019

Opinion Date: November 18, 2020

Judge: Debra McCloskey Todd

Areas of Law: Civil Procedure, Personal Injury

The issue presented for the Pennsylvania Supreme Court's consideration in this matter was whether a trial court abused its discretion in denying a motion for a new trial following a jury award of zero dollars in damages in a wrongful death action. Peter McMichael and his wife, Janice McMichael, entered into a lease with MarkWest Energy Partners, LP, whereby MarkWest was to install a natural gas pipeline on the McMichaels’ property in Beaver County, Pennsylvania. The lease required MarkWest to hire P&J Construction and Landscaping Nursery, LLC (owned by the McMichaels) to perform the tree clearing on the property in preparation for the installation of the pipeline. P&J hired Peter's 51-year-old nephew, Seth McMichael (“Decedent”); Decedent’s son, David; and another individual, Michael Hudak, all of whom were familiar with the process of tree removal, to assist in clearing the trees on the property. In January 2013, while Peter was supervising the tree clearing process, he used a bulldozer to clear an access road. As a result, Peter would periodically turn his back to the tree cutters. At a time when Peter’s back was turned, a tree cut by Hudak split and fell towards Decedent, striking him from behind and killing him. The Decedent's widow and executrix of his estate, Tina, filed a wrongful death and survival action on behalf of herself, and the Decedent's estate, against Peter, Janice McMichael, and MarkWest. The jury awarded Wife, as executrix of Decedent’s estate, $225,000 in survival damages, reduced to $135,000 to reflect the jury’s finding that Decedent was 40% negligent, and, pertinent here, zero dollars in wrongful death damages. Explaining that it found “no evidence of unfairness, mistake, partiality, prejudice, corruption or the like that requires disregarding the jury’s rejection of the claim for non-economic damages,” the court denied Wife’s motion for a new trial. Upon review, the Supreme Court concluded the trial court erred in denying a new trial with respect to the non-economic damages award. The matter was remanded for a new trial, limited to the non-economic damages issue.

McKenzie v. Sevier

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0010

Opinion Date: November 18, 2020

Judge: Walker

Areas of Law: Personal Injury

In this personal injury action, the Supreme Court affirmed in part and reversed in part the order of the circuit court denying Plaintiff a new trial on damages and imposing sanctions, holding that the verdict awarding no damages was inadequate. Plaintiff sued Defendant for the intentional tort of battery. The jury found Defendant liable for battery but awarded Plaintiff no damages. The Supreme Court reversed in part, holding (1) because the uncontroverted evidence was not only that the battery caused Plaintiff's brain injury but also that Plaintiff suffered a traumatic brain injury for which he was not compensated, the verdict was inadequate; (2) the circuit court was within its discretion to require the parties to bear their own costs and to order Defendants to pay the costs of the jury trial; and (3) the circuit court did not abuse its discretion by imposing sanctions in the form of attorney fees where Defendants displayed a pattern of discovery misconduct.

Wal-Mart Stores East, L.P. v. Ankrom

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0666

Opinion Date: November 18, 2020

Judge: Walker

Areas of Law: Personal Injury

The Supreme Court affirmed the order of the circuit court denying Wal-Mart's posttrial motions and the court's judgment against each defendant in this personal injury case according to its apportioned fault, holding that the circuit court did not err. Plaintiff sued Wal-Mart after she sustained serious injuries in a collision with a fleeing shoplifter in a Parkersburg Wal-Mart. Following a jury trial, the jury awarded $16.9 million in damages, apportioning thirty percent of the fault to Wal-Mart and the remainder to the shoplifter. The circuit court denied Wal-Mart's posttrial motions. The Supreme Court affirmed, holding (1) Wal-Mart owed a duty to Plaintiff to protect her from the shoplifter's criminal conduct, and a reasonable juror could have concluded that the shoplifter's flight was the proximate cause of Plaintiff's injuries; (2) the circuit court did not commit reversible error when it refused to instruct the jury on intervening cause; (3) any error in the circuit court's exclusion of certain allegations in Plaintiff's complaint was harmless; (4) the circuit court did not abuse its discretion in awarding Plaintiff prejudgment interest on her past medication expenses; and (5) the circuit court did not err in refusing to enter Plaintiff's proposed judgment order.