Case Summaries

Injury & Tort Law

[11/06] Sell v. US Dep't. of Justice
In an action alleging that plaintiff was the victim of medical malpractice that occurred while he was in federal custody awaiting trial, dismissal of the action on statute of limitations grounds is affirmed where: 1) plaintiff's mental illness did not prevent him from discovering the alleged injury; and 2) the continuous treatment doctrine did not toll the statute.

[10/30] Groover v. Scottsdale Ins. Co.
In a wrongful death action based on a construction accident, summary judgment for defendants is affirmed where plaintiff's remedy was limited to workers' compensation under Louisiana law.

[10/30] Lake Almanor Assoc., LLP. v. Huffman-Broadway Group, Inc.
In plaintiff-developer's breach of contract and negligence case against a consultant hired by a county to prepare an environmental impact report (EIR), district court's sustaining of defendant's demurrer to plaintiff's complaint is affirmed as the balance of the factors militates against a conclusion that a consultant owes a duty of care to a project applicant in the timely completion of a draft EIR.

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Banking Law

[10/28] Alston v. Countrywide Fin. Corp.
In plaintiffs-homebuyers' putative class action against Countrywide and its affiliated reinsurer to recover statutory treble damages pursuant to section 8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (RESPA), dismissal of the complaint for lack of jurisdiction is reversed as the plain language of RESPA section 8 indicates that Congress created a private right of action without requiring an overcharge allegation. Finally, plaintiffs are not barred by the filed rate doctrine as it simply does not apply in this case.

[10/21] Republic Sav. Bank, F.S.B. v. US
In plaintiffs' breach of contract claim against the U.S. government arising from the savings and loan crisis of the early 1980s, the decision of the Court of Federal Claims summarily awarding plaintiffs restitution damages is affirmed in part, reversed in part, vacated and remanded where: 1) government's challenge to the restitution award of $17 million for plaintiffs' capital contribution is rejected; 2) trial court erred in including, as part of the restitution award, the sale premium; 3) trial court erred by not reducing the award by $4.287 million, the value of the tax benefits plaintiffs received; and 4) trial court did not err in offsetting plaintiffs' award with the government's $3 million cash contribution.

[10/20] Casey v. FDIC
In an action against mortgage lenders alleging that the lenders had engaged in the unauthorized practice of law by charging a fee for preparation of loan documents by nonlawyers, judgment for defendant is affirmed where: 1) all claims in a case to which the FDIC was a party had "arising under" federal subject matter jurisdiction; and 2) the document preparation fees at issue constituted loan-related fees, including without limitation, initial charges, as enumerated in 12 C.F.R. section 560.2(b)(5).

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Commercial Law

[11/04] DMA Int'l., Inc. v. Qwest Comms. Int'l., Inc.
In an appeal from the district court's denial of petitioner's motion to vacate an arbitral award, the order is affirmed where the arbitrator's factual findings regarding the meaning of the contract at issue could not be overturned simply because the evidence was conflicting. In addition, attorney's fees are awarded to respondent because petitioner's appeal vexatiously multiplied the proceedings.

[11/04] Memphis Biofuels, LLC. v. Chicksaw Nation Indus., Inc.
In plaintiff's case against the defendants for repudiating an agreement whereby defendant was to deliver diesel fuel and soybean oil to plaintiff's refinery facility, dismissal of the suit for lack of subject matter jurisdiction is affirmed as the defendant, a federally chartered tribal corporation, enjoys tribal-sovereign immunity.

[11/03] Imation Corp. v. Koninklijke Philips Elec. N.V.
In plaintiff's case against defendants arising from a patent license agreement dispute, judgment on the pleadings in favor of defendants is reversed and remanded where: 1) the district court erred in finding that plaintiff's subsidiaries are not licensed under the parties' patent licensing Agreement; and 2) the unambiguous Agreement makes clear that the license grant includes subsidiaries of plaintiff and defendant that meet the Agreement's Subsidiary definition.

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Professional Malpractice

[10/28] James River Ins. Co. v. Kemper Cas. Ins. Co.
In plaintiff-insurer's case seeking a declaration that it had no duty to defend or indemnify two lawyers who were sued for malpractice, district court's grant of summary judgment in favor of defendant-insurer is reversed with instructions to enter the declaratory judgment requested by plaintiff as its policy does not apply since it excludes coverage of conduct covered by a prior insurer, and all the wrongful acts alleged in the malpractice suit arose from events that took place in defendant's policy period.

[10/23] Kamelgard v. Macura
In plaintiff-surgeon's case against defendant, another surgeon, for defamation, district court's dismissal of the case without prejudice is affirmed, but the judgment is modified to make the dismissal with prejudice, as the suit was time-barred.

[10/15] Executive Risk Indemn. Inc. v. Pepper Hamilton LLP
In an action by insurers seeking a declaration that the policy at issue did not cover certain legal malpractice claims, the appellate division's order denying summary judgment is affirmed in part where one plaintiff was not entitled to judgment on the basis of rescission. However, the order is modified in part where the prior knowledge exclusion did not require the known act, error, omission or circumstance to be "wrongful conduct on the part of the insured."

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Property Law & Real Estate

[11/04] Simandle v. Vista de Santa Barbara
Trial court's judgment in favor of defendant-Mobilehome Park that it could remove a mobilehome owned by plaintiffs' deceased parents at plaintiffs' expense is affirmed as the plaintiffs forfeited their statutory right under the Mobilehome Residency Law to sell their parents' mobilehouse at the Park.

[11/03] Omnipoint Holdings, Inc. v. City of Cranston
In plaintiff-wireless carrier's case against a city, the city's zoning board, and some of its members for denying a variance and special use permit to build a wireless communications tower in the city, judgment in favor of plaintiff is affirmed as the zoning board's decision was a final action for purposes of section 332(c)(7)(B) of the Telecommunications Act, and as such, the court did not err in finding that the zoning board's decision had the effect of prohibiting the provision of personal wireless services.

[11/03] T Street Dev., LLC v. Dereje & Dereje
In an appeal from the denial of plaintiff's action to enforce a settlement agreement it claimed the parties reached during the pendency of its suit for specific performance of a real estate transaction, the district court's order is affirmed where the parties had failed to reach agreement on a material element of the case.

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