The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

California Supreme Court To Address Public Forum Doctrine and Nursing Care For Diabetic Students

By on Posted in California

The Court has recently granted review in two civil cases:

  • Ralphs Grocery v. United Food & Commercial Workers Union, S185544, in which the Court of Appeal, formerly 186 Cal.App.4th 1078, held that the state cannot force the owner or possessor of real property that is not a public forum to give an uninvited group (in this case, a union) access to private property to engage in speech based on the content of the speech, in light of the First and Fourteenth Amendments of the U. S. Constitution. The Supreme Court will also address whether the parking area and walkway in front of the entrance to plaintiff’s retail store, which is part of a larger shopping center, constitute a public forum under Robins v. Pruneyard Shopping Center and its progeny. For more details, see the Civil Rights update page.
  • American Nurses Ass. v. O’Connell, S184583, in which the Court of Appeal, formerly at 185 Cal.App.4th 393, held that current California law does not allow designated voluntary school personnel, who are not licensed nurses, to administer insulin to diabetic students who require the injections under a Section 504 Plan (29 U.S.C. § 794; 34 C.F.R. § 104.1 et seq.) or Individualized Education Program (IEP) (20 U.S.C. § 1414(d)), and affirmed an injunction barring the practice. The Supreme Court will also address whether state law is preempted by federal law requiring equal access to education. For more details, see the Other update page.
     

Can Casual Conversations With the Insured Waive a Written Notice of Claim Clause?

By Kirk Jenkins on Posted in Illinois, Insurance

An insurance policy required that the insured "immediately record the specifics of the claim" and "see to it that we receive written notice of the claim . . . as soon as practicable."

The insured waited 27 months before giving its insurer written notice of a defamation suit.

The Appellate Court held that the insured had breached the written notice clause, and that the presence or absence of actual notice had no bearing on the issue.

But last week, a divided Illinois Supreme Court reversed. West American Insurance Co. v. Yorkville National Bank, [pdf] No. 108285.

The plaintiff offered testimony of several casual contacts with representatives of the insurer following the filing of the lawsuit.

The president of the insured told an insurance agent "in passing" that the insured had "a defamation suit in Ottawa" — the suit was in Joliet — and it was a "he said/she said sort of thing." The president said nothing about when the alleged defamation took place, nor did he provide the agent with a copy of the complaint, nor did he offer to send any additional information. The agent said the suit was "probably not" covered, but the president never pursued the matter.

Later, the president met another insurance agent. He vaguely referred to a defamation suit and asked whether the policy would cover it. The agent gave "basically the same response."

Finally, the defamation suit was briefly mentioned at three meetings of the bank board of directors, although apparently no information was recounted about where the suit was filed, when the incident allegedly took place, or who the parties to the lawsuit were.

The majority held that the timeliness of an insured’s notice was judged by a five factor test: (1) the specific language of the policy’s notice provision; (2) the insured’s sophistication in commerce and insurance matters; (3) the insured’s awareness of an event that may trigger insurance coverage; (4) the insured’s diligence in ascertaining whether policy coverage is available; and (5) prejudice to the insurer.

 The Court held that the first factor weighed in neither direction, and the second and third weighed against a finding of reasonable delay.

However, the Court held that the fourth factor weighed heavily in favor of a finding of reasonableness. An insurer is deemed to have "actual notice," the Court found, where it has sufficient information to locate and defend the suit. The Court held that the casual conversations between officers of the insured and various agents were sufficient for the insurer to "locate and defend" the action, and taken together, the factors weighed in favor of finding the insured’s delay in notice reasonable.

Justice Charles Freeman dissented. "[I]t is apparent," Justice Freeman wrote, "that [the insured] breached each and every reporting obligation it agreed to as a condition of coverage."

Justice Freeman strongly condemned the majority’s decision:  

By ignoring the settled rules of insurance policy construction . . . the majority redirects the focus of analysis away from compliance with policy provisions to an unworkable and problematic case-by-case examination, requiring swearing contests between the insurer and insured as to whether and when notice was provided . . . today’s opinion . . . effectively overrules decades of precedent establishing that notice provisions are conditions precedent to coverage under a policy.

Illinois Supreme Court on the Tort Immunity Act, Collateral Estoppel, the Use Tax and the Home Repair Act

By Kirk Jenkins on Posted in Illinois

Last week, the Illinois Supreme Court filed opinions resolving four new civil cases:

  • Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District, [pdf] No. 109137 — In a personal injury action, the Court held that the Bi-State Development Agency, which was created by an interstate compact between Illinois and Missouri, is a "local public entity" within the meaning of the Local Governmental and Governmental Employees Tort Immunity Act. Therefore, a one-year statute of limitations applied, and the action was barred.
     
  • Hurlbert v. Charles, [pdf] No. 109041 — In an action for malicious prosecution, the Court held that the doctrine of collateral estoppel did not apply to the finding of probable cause in plaintiff’s driver’s license statutory summary suspension hearing following a DUI arrest.
     
  • Irwin Industrial Tool Company v. The Illinois Department of Revenue, [pdf] No. 109300 — In a case brought under the Use Tax Act, the Court held that there was a substantial nexus between a corporate airplane and the state of Illinois such as to permit the Department of Revenue to impose a use tax on the sale. The Court further held that the Act’s provision of a credit for sales taxes paid in other states satisfied the fair apportionment requirement of the Federal Commerce Clause.
     
  • K. Miller Construction Company, Inc. v. Joseph J. McGinnis, [pdf] No. 109156 — In an action for breach of contract and quantum meruit, the Court held that where a contractor performed home remodeling work in excess of $1,000 value on an oral contract, in violation of the Home Repair and Remodeling Act, the statutory violation did not render the contract unenforceable. The Court held that recovery was also available on a quantum meruit theory.

Florida’s Statute Banning Gays and Lesbians From Adopting Ruled Unconstitutional

By on Posted in Constitutional Law

In a landmark decision, Florida’s Third District Court of Appeal unanimously upheld a lower court’s ruling striking down as unconstitutional the state’s statute that prohibited gays and lesbians from adopting.  In a 42-page opinion, Florida Department of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G. (pdf), the Court found there was no rational basis for the statute, and therefore held it to be unconstitutional on equal protection grounds.

The facts of the underlying case were not substantially disputed.  In 2004, the Florida Department of Children and Families removed two brothers, a four-year-old and an infant, from their home based on allegations of abuse and neglect.  The children were placed into foster care with Frank Gill, an experienced foster parent.  For the next several years, the children “thrived” in the household.  When the children became available for adoption after the termination of their natural parents’ rights, Gill applied to adopt them.  Although the State agency responsible for monitoring the children reported that Gill’s home presented a suitable environment and that he met all the criteria for adoption, it recommended against adoption on the sole basis that Gill is a homosexual.  After Gill’s adoption application was denied on that basis, he filed a petition in the circuit court to adopt the children and a trial ensued.

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Illinois Supreme Court Names Justice Thomas L. Kilbride as New Chief Justice

By Kirk Jenkins on Posted in Illinois

The members of the Illinois Supreme Court have selected Supreme Court Justice Thomas L. Kilbride as the new Chief Justice. Justice Kilbride will begin his term on October 26, 2010, following the retirement of Chief Justice Thomas Fitzgerald.

Justice Kilbride received his law degree from Antioch School of Law in Washington, D.C. in 1981. He practiced law for twenty years in Rock Island, handling matters in a variety of areas, including environmental law, labor law, employment, and appellate law. He was elected to the Supreme Court in 2000, and is a candidate for another ten year term on the Court in the November 2010 election.

Illinois Chief Justice Thomas Fitzgerald Announces His Retirement

By Kirk Jenkins on Posted in Illinois

The beginning of the Illinois Supreme Court’s September docket was overshadowed this week by a surprise announcement from Chief Justice Thomas R. Fitzgerald. Chief Justice Fitzgerald told his colleagues that he had been diagnosed with Parkinson’s Disease, and would retire from the Court effective October 25, 2010, rather than running for a full ten-year term.

Chief Justice Fitzgerald’s retirement caps a distinguished thirty-four year career in the Illinois judiciary. Chief Justice Fitzgerald was elected as a Circuit Judge in Cook County in 1976 — at the time, the youngest elected Judge in the county. After eleven years as a trial judge in the Criminal Court, the Chief Justice was assigned as Supervising Judge of Traffic Court. He was assigned as Supervising Judge of Traffic Court in 1989. Chief Justice Fitzgerald was elected to the Supreme Court in 2000.

Acting upon Chief Justice Fitzgerald’s recommendation, the Court appointed Justice Mary Jane Theis of the Appellate Court, First Appellate District, to serve the remainder of Chief Justice Fitzgerald’s term. Justice Theis served as an Associate Judge and later, a Circuit Judge before being elected to the Appellate Court in 1994. Once Justice Theis takes her seat, three of seven members of the Court will be women for the first time in state history.

Chief Justice Fitzgerald "has served the people of Illinois with honor and integrity," said Governor Quinn in a statement. The retiring Chief Justice "will be greatly missed." According to the Governor, "Justice Theis has demonstrated sound legal judgment and an unwavering commitment to finding truth and upholding the law of the land."

According to Supreme Court spokesman Joe Tybor, the Court will file its order naming one of its members Chief Justice later today.

California Supreme Court’s Workload Continues to Increase

By on Posted in California

The California Supreme Court has released its annual report describing the operations of the Court from 2009 to 2010. The Court issued 105 opinions in this period, 42 of which were in civil cases. However, this does not account for the 30 habeas corpus petitions denied by order, so the court’s workload continues to be dominated by criminal matters. While the total filings with the court increased to 9,917 (from 9,556), the court’s output was reduced from 110 opinions in the prior year, and total dispositions decreased by almost 2%. One factor might have been the mandatory furlough, which decreased total work hours by over 4%. In addition, the last conference of the court was delayed into the next fiscal year to accommodate judicial confirmation hearings. Interestingly, the number of civil petitions for review decreased to 1,219 (from 1,307). This was offset by an increase in criminal filings, particularly habeas corpus petitions in non-capital criminal matters. Depublication orders reached a record low of four, beating the previous record of ten in 2007-2008. This compares to the 1980’s and early 1990’s, in which the court regularly depublished over 100 opinions each year. The Court issued a single publication order.

This follows a report by the AOC Office of Court Research on the fiscal year 2009, which shows that filings in the California Superior Court topped 10 million for the first time, a 7% increase from 2008 and a 20% increase over the last ten years. This reflects an increase in each major category (civil, criminal, family and juvenile) although the largest increase was in civil filings –with unlimited civil filings increasing more than 17% and limited civil filings increasing almost 14%. The increase in unlimited civil filings was largely driven by nontort cases, as the number of tort cases filed only increased by 2%. While data on unlimited filings in incomplete, a similar trend is apparent.
 

This week the California Supreme Court has set three civil matters for oral argument in October

By on Posted in California
  • Conservatorship of Roy W addresses whether a prevailing party can be denied attorney fees under C.C.P. § 1021.5 because the prevailing party had a significant non-pecuniary personal interest in the outcome of the litigation. For more details on Roy W, see the Attorney-Related update page.
  • Martinez v. Regents of University of California addresses a challenge by out-of-state U.S. citizens regarding the validity under federal law of Education Code § 68130.5, which provides that undocumented aliens are exempt under certain circumstances from paying the nonresident tuition at State University and California Community Colleges which out-of-state U.S. citizens are required to pay. For more details on Martinez, see the Other update page.
     

California Supreme Court Grants Review in Another Preemption Case

By on Posted in California, Commercial Law

The Supreme Court has granted review to again address preemption, this time in the timely area of consumer protection and banking. In Parks v. MBNA American Bank, the Court of Appeal reversed a judgment on the pleadings, finding that Civil Code § 1748.9, a state consumer protection law which mandates specific notice requirements regarding the use of preprinted checks (aka convenience checks) as an advance on credit card accounts, was not preempted by the National Bank Act (12 U.S.C. § 21 et seq.) on its face. For more details about Parks, see the B & P 17200/Class Actions/Commercial update page.

Important Medicare Preemption Decision

By Douglas Collodel on Posted in Insurance

At long last, the Ninth Circuit Court of Appeals issued its opinion in the Uhm v. Humana, Inc. (.pdf), matter, finding the Medicare Act’s exhaustion requirements and preemption provision barred all of the plaintiffs’ common law claims. (– F.3d —  (9th Cir. 2010).) Originally, the court issued an opinion two years ago, but vacated the decision last summer and took the case under submission after soliciting amicus assistance from the Centers for Medicare and Medicaid Services. The new Uhm decision is strong support for Medicare Act preemption, reflecting CMS’ underlying thesis that state law claims interfering with Medicare standards and regulations must be preempted.

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