Latest 19 Cases This Week: Hisert v. Haschen (1st Cir.), Alemarah v. General Motors, LLC (6th Cir.), Fox v. Dakkota Integrated Systems, LLC (7th 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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Hisert v. Haschen

Court: US Court of Appeals for the First Circuit

Docket: 20-1329

Opinion Date: November 17, 2020

Judge: Sandra Lea Lynch

Areas of Law: Civil Procedure, Contracts

The First Circuit affirmed the judgment of the district court finding that Defendant had committed fraud in connection with a contract for dredging work to be performed in Massachusetts and in awarding Plaintiff $148,626 in damages, holding that the district court did not err. The jury's finding of fraud in this case was based on Massachusetts law. On appeal, Defendant argued that the court erred in determining at summary judgment that Massachusetts law applied to the fraud claim. The First Circuit affirmed, holding (1) the district court was plainly correct that Massachusetts law applied; (2) there was sufficient evidence to support the conviction; and (2) the arbitration clause in the contract between the parties' businesses did not bar this lawsuit.

Alemarah v. General Motors, LLC

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-1346

Opinion Date: November 18, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Labor & Employment Law, Legal Ethics

Alemarah sued her former employer, GM, in both state and federal court, claiming employment discrimination based upon identical factual allegations. The state suit asserted state claims, the federal suit, federal claims. The state court dismissed that case after a case evaluation ($400,000); the federal district court granted GM summary judgment. Alemarah challenged the court’s grant of summary judgment, its denial of her motion to recuse the judge, and an award ($4,715) of costs. The Sixth Circuit affirmed. The court properly granted summary judgment. Under Michigan law, the state court’s order dismissing her claims after acceptance of the case evaluation was a judgment on the merits, Alemarah and GM were parties in both case, and the matter in the second case could have been resolved in the first, so res judicata bars every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised. The court acknowledged that a reasonable observer could conclude that the district judge’s statement in a letter to Alemarah’s counsel expressed anger and another of the judge’s actions could be seen as punitive but those actions were not “so extreme as to display clear inability to render fair judgment.” GM submitted as costs the amount it paid for deposition transcripts that it attached to its summary judgment motion; the costs were allowable.

Fox v. Dakkota Integrated Systems, LLC

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-2782

Opinion Date: November 17, 2020

Judge: Diane S. Sykes

Areas of Law: Civil Procedure, Labor & Employment Law

The Illinois Biometric Information Privacy Act regulates the collection, use, retention, disclosure, and dissemination of biometric identifiers (fingerprints, retina and iris scans, hand scans, and facial geometry). Fox's employer, Dakkota, required employees to clock in and out by scanning their hands on a biometric timekeeping device. Dakkota used third-party software to capture that data, which was stored in a third-party's database. Fox alleges that Dakkota did not obtain her informed written consent before collecting her biometric identifiers, unlawfully disclosed or disseminated her biometric data to third parties without her consent, failed to develop, publicly disclose, and implement a data-retention schedule and guidelines for the permanent destruction of its employees’ biometric identifiers, and failed to permanently destroy her biometric data when she left the company. Fox was represented by a union at Dakkota, The judge dismissed two counts as preempted by the Labor Management Relations Act, but remanded the section 15(a) claim to state court. The Seventh Circuit reversed the remand order. Fox’s section 15(a) claim does not allege a mere procedural failure to publicly disclose a data-retention policy but alleges a concrete and particularized invasion of her privacy interest in her biometric data stemming from Dakkota’s violation of its section 15(a) duties to develop, publicly disclose, and comply with data retention and destruction policies. Her allegations plead an injury in fact for purposes of Article III. The invasion of a legally protected privacy right, though intangible, is personal and real, not general and abstract.

KST Data, Inc. v. DXC Technology Co.

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-55422

Opinion Date: November 17, 2020

Judge: Eric F. Melgren

Areas of Law: Civil Procedure, Contracts

A defendant is not required to file a new answer reasserting its affirmative defenses when the claim in the amended complaint related to those affirmative defenses remains the same. After ES entered into a contract with KST to provide services to NASA, KST filed suit against ES after ES's nonpayment of invoices. The district court granted summary judgment sua sponte to KST on its breach of contract claim. Applying de novo review, the Ninth Circuit held that, by not giving ES notice and the opportunity to assert its affirmative defenses, the district court erred in granting summary judgment sua sponte. The panel also held that ES was not required to respond and reassert its affirmative defenses to KST's Second Amended Complaint because ES had already asserted those affirmative defenses in response to the same breach of contract claim in the First Amended Complaint. Therefore, the panel reversed the district court's grant of summary judgment and entry of judgment for KST and remanded with instructions for the district court to allow ES to show why KST is not entitled to judgment as a matter of law on KST's breach of contract claim.

Galipeau v. Bixby

Court: Alaska Supreme Court

Docket: S-17365

Opinion Date: November 13, 2020

Judge: Peter J. Maassen

Areas of Law: Civil Procedure, Real Estate & Property Law

A property owner cut down trees on his lot to build a cabin. The trees were protected by his subdivision’s Declaration of Covenants, Conditions, and Restrictions (CCRs) and could not be cut down without prior approval. The owners of an adjacent lot sued him. The superior court found the property owner liable and, following a two-day bench trial, awarded the neighbors compensatory restoration damages and punitive damages. The property owner appealed, arguing that the superior court erred in both damages awards. After review of the trial court record, the Alaska Supreme Court agreed: there was no basis in the evidence for an award of restoration costs when the trees would not be restored, and there was no evidence to support an award based on a loss of value to the neighbors’ property. Nor was there proof of an independent tort as necessary to support a punitive damages award in a case premised on the breach of CCRs. The superior court's judgment was vacated and the matter remanded for entry of a nominal damages award.

County of Monterey v. Bosler

Court: California Courts of Appeal

Docket: C085041(Third Appellate District)

Opinion Date: November 16, 2020

Judge: Elena J. Duarte

Areas of Law: Civil Procedure, Government & Administrative Law, Government Contracts, Zoning, Planning & Land Use

Plaintiff County of Monterey (County) appealed when the trial court denied its petition for writ of mandate and complaint for declaratory and injunctive relief. The County was the successor agency for its former redevelopment agency ("RDA"), and challenged decisions by the Department of Finance (Department) relating to a development known as the East Garrison Project, which was part of the Fort Ord Redevelopment Project located on a closed military base in Monterey. The County claimed the trial court erroneously determined that a written agreement entered into between its former RDA and a private developer (real party in interest, UCP East Garrison, LLC) was not an enforceable obligation within the meaning of the dissolution law because the former RDA did not have the authority to approve the agreement on the date the governor signed the 2011 dissolution legislation. The County further contended the trial court erred in determining the County failed to show the Department abused its discretion in disapproving two separate requests for funding related to administration of the East Garrison Project. The County claimed these administrative costs were expended to complete an enforceable obligation within the meaning of the dissolution law, and therefore the Department should have approved its requests for payment of such costs. Finally, the County argued the Department’s application of the dissolution law improperly impaired UCP’s contractual rights. The Court of Appeal rejected each of the County's contentions and affirmed judgment.

Jones v. Goodman

Court: California Courts of Appeal

Docket: D075907(Fourth Appellate District)

Opinion Date: November 17, 2020

Judge: Guerrero

Areas of Law: Business Law, Civil Procedure

Trevor Jones contended he was entitled to a percentage of the successful Pura Vida bracelet business established with his former friends and colleagues, defendants Paul Goodman and Griffin Thall. He claimed the parties had formed a partnership regarding a bracelet business and sued Goodman and Thall seeking (among other things) a partnership buyout under California Corporations Code section 16701. Defendants denied Jones’s claims, and judgment was entered in their favor. After trial, Defendants sought to recover attorney fees pursuant to section 16701, which authorized an equitable award of attorney and expert fees “against a party that the court finds acted arbitrarily, vexatiously, or not in good faith.” The trial court denied Defendants’ motion on two grounds: (1) the motion was untimely under applicable rules; and (2) on the merits, the court declined to find that Jones acted arbitrarily, vexatiously, or not in good faith. Defendants appealed, contesting the trial court's sua sponte determination the motion was untimely, and they further challenged the court’s refusal to find Jones acted arbitrarily, vexatiously, or not in good faith. After review, the Court of Appeal concurred with the trial court, rejected Defendants’ claims of error, and affirmed the order.

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.

Dameron v. Mercy Hospital & Medical Center

Court: Supreme Court of Illinois

Citation: 2020 IL 125219

Opinion Date: November 19, 2020

Judge: Rita B. Garman

Areas of Law: Civil Procedure, Medical Malpractice

After Dameron underwent a robotic-assisted hysterectomy at Mercy Hospital, she brought a medical malpractice action. During discovery, Dameron disclosed Dr. Preston as a controlled expert witness under Ill. Sup. Ct. Rule 213(f)(3). Dameron stated that Preston would testify concerning "the comparison electromyogram and/or nerve conduction studies he will be performing" and would also testify that he reviewed the results of Dameron’s November 2013 EMG and NCV tests performed at Mercy. In June 2017, Preston performed the EMG study and prepared a report. In July 2017, Dameron e-mailed the defendants, stating that she was withdrawing Preston as a Rule 213(f)(3) controlled expert witness and considering him to be a Rule 201(b)(3) non-testifying expert consultant and that she would not produce any documents from Preston’s review of the case or his examination. Dameron moved to change Preston’s designation and sought to preclude discovery of facts and opinions known by Preston absent a showing of exceptional circumstances, stating that Preston was not one of her treating physicians. The appellate court reversed the denial of Dameron’s motion. The Illinois Supreme Court affirmed. Defendants are not entitled to Preston’s report and EMG study on the basis that Preston served as Dameron’s treating physician; Preston was consulted for the purpose of providing testimony. A party is permitted to redesignate an expert from a Rule 213(f) controlled expert witness to a Rule 201(b)(3) consultant in a reasonable amount of time before trial, where a report has not yet been disclosed. Rule 201(b)(3) protects both conceptual data and factual information. Defendants did not show exceptional circumstances.

Leibowitz v. Family Vision Care, LLC

Court: Supreme Court of Illinois

Citation: 2020 IL 124754

Opinion Date: November 19, 2020

Judge: Burke

Areas of Law: Business Law, Civil Procedure, Insurance Law, Labor & Employment Law

Cahill was the office administrator for the Family Vision optometry practice and handled insurance billings. She left her employment and filed for bankruptcy protection. About 90% of Family’s revenue came from claims submitted to VSP, which covers claims from optometrists only if they have “majority ownership and complete control” of their medical practices. VSP disburses payments after the provider signs an agreement certifying itself as “fully controlled and majority-owned” by an optometrist. At the time Cahill was submitting Family’s claims, the practice was actually owned by a practice management company with more than 150 surgery centers and other medical practices. About a year after Cahill left Family, the trustee of Cahill’s bankruptcy estate sued under the Insurance Claims Fraud Prevention Act, 740 ILCS 92/1, which added civil penalties to existing criminal remedies for fraud against private insurance companies and allows a claim to be raised on the state’s behalf by a private person (relator), in a qui tam action. The relator becomes entitled to remuneration if the lawsuit succeeds. A relator must be an “interested person” but the Act does not define that term. The Illinois Supreme Court affirmed the reinstatement of the case. A former employee-whistleblower with personal, nonpublic information of possible wrongdoing qualifies as an “interested person” under the Act and need not allege a personal claim, status, or right related to the proceeding. The state need not suffer money damages to partially assign its claim to a relator. The Act is intended to remedy fraud against private insurers, where the only injury to the state is to its sovereignty, based on a violation of criminal law.

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.

Gooss v. Gooss, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 233

Opinion Date: November 19, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Family Law

This action concerned child support for the parties’ child, J.T.G. A Nevada court granted Vickie Lenard (aka Gooss) primary residential responsibility for J.T.G. The court awarded Jeffrey Gooss parenting time and required him to pay child support at $350.00 per month, which included $50.00 in child support arrears. In the event Lenard relocated from Nevada to Colorado, Gooss’s child support obligation would be waived, and he would only bear travel expenses for himself and J.T.G. However, Lenard never relocated to Colorado, but she did relocate on multiple occasions to several other states with J.T.G. North Dakota requested a modification of child support when Lenard moved to North Dakota in 2019. Gooss challenged the district court’s jurisdiction to modify the child support originally ordered by the Nevada court. Gooss argued travel expenses were part of the parenting plan, and North Dakota lacked jurisdiction to modify the child custody arrangement issued by another state under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Gooss also challenged the calculation of child support, argued imposing child support was inequitable, and claimed a deviation for travel expenses was necessary. The district court held a hearing on the motions where it heard testimony and considered evidence and ultimately modified the child support obligation. Finding the North Dakota trial court had jurisdiction to modify the obligation, and no other reversible error, the North Dakota Supreme Court affirmed the modification.

Krolik v. Muscha

Court: North Dakota Supreme Court

Citation: 2020 ND 240

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Family Law

Cody Muscha appealed a domestic violence protection order, arguing he was provided with the wrong date for the hearing, therefore, he was deprived of his due process right to be heard. In affirming the district court's order, the North Dakota Supreme Court found that contrary to Muscha’s argument, the requirements of procedural due process were satisfied. Notice was provided to Muscha on January 8, 2020, well in advance of the January 16 hearing. The notice was reasonably calculated to inform him of a proceeding which had the potential to adversely affect his legal interests. Muscha’s failure to recognize the discrepancy between what he was allegedly told by the deputy and what the hearing notice stated, and his failure to appear at the hearing, could not be imputed to the district court, even assuming Muscha was provided with an incorrect date. Therefore, the district court did not err by issuing the permanent domestic violence protection order.

Comanche Nation v. Coffey

Court: Oklahoma Supreme Court

Citation: 2020 OK 90

Opinion Date: November 17, 2020

Judge: Kane

Areas of Law: Civil Procedure, Government & Administrative Law

Plaintiff-appellant Comanche Nation of Oklahoma ex rel. Comanche Nation Tourism Center, filed a lawsuit seeking a declaratory judgment that defendant-appellant Wallace Coffey was indebted to it for the amount of the outstanding balance on an open account. The trial court granted Coffey's motion to dismiss for lack of subject matter jurisdiction and dismissed the case with prejudice. Thereafter, Coffey filed an application for prevailing party attorney fees pursuant to 12 O.S.2011 section 936. The trial court denied Coffey's request for attorney fees, finding he was not the prevailing party because he had not prevailed on the merits of the action. Coffey appealed the order denying attorney fees, and the Oklahoma Supreme Court retained the appeal, holding a defendant was not a "prevailing party" within the meaning of section 936 when the trial court dismissed the action with prejudice for lack of subject matter jurisdiction. The trial court's order denying Coffey's motion for attorney fees was therefore affirmed.

In Re: Canvassing Observ.

Court: Supreme Court of Pennsylvania

Docket: 30 EAP 2020

Opinion Date: November 17, 2020

Judge: Debra McCloskey Todd

Areas of Law: Civil Procedure, Election Law, Government & Administrative Law

This appeal arose from the processing of mail-in and absentee ballots received from voters in Philadelphia County in the November 3, 2020 General Election. Specifically, Appellee Donald J. Trump, Inc. (the “Campaign”) orally moved for the Philadelphia County Court of Common Pleas to give its representative more proximate access to the canvassing activities being carried out by Appellant, the Philadelphia County Board of Elections (the “Board”). The trial court denied relief, the Commonwealth Court reversed, and the Board appealed that order. The Pennsylvania Supreme Court concluded the Board did not act contrary to law in fashioning its regulations governing the positioning of candidate representatives during the pre-canvassing and canvassing process, as the Election Code did not specify minimum distance parameters for the location of such representatives. Critically, the Court found the Board’s regulations as applied herein were reasonable in that they allowed candidate representatives to observe the Board conducting its activities as prescribed under the Election Code. Accordingly, the Court determined the Commonwealth Court’s order was erroneous, and vacated that order. The trial court's order was reinstated.

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.