Circuit Watcher

MRCo, Inc. v. Juarbe-Jimenez, 1st Cir. Mar. 27, 2008

admin — Wed, 09 Apr 2008 01:46:01 +0000

07-1614 MRCo, Inc. v. Juarbe-Jimenez
Before Howard and Lipez, Circuit Judges, and Smith,¹ District Judge.
SMITH, District Judge. This diversity action originally was brought by MRCo, Inc.² (“MRCo”) against Banco Popular de Puerto Rico, Inc. (“Banco Popular”). MRCo later amended its complaint to name the Insurance Commissioner of Puerto Rico (“Commissioner”) as an additional defendant.³ After MRCo and Banco Popular reached a settlement and all claims between them were dismissed, MRCo moved for partial summary judgment on its claims against the Commissioner. The district court denied MRCo’s motion, and then dismissed the entire case on the ground that MRCo’s claims are barred by Puerto Rico law. This timely appeal followed, and we now consider whether MRCo’s claims should be resurrected. … Affirmed. MRCo, Inc. v. Juarbe-Jimenez.

Of the District of Rhode Island, sitting by designation. [↩]
The record reflects that MRCo’s parent corporation, ULLICO Inc., undertook at least some of the actions that preceded this litigation. For simplicity, however, we refer to MRCo and ULLICO collectively as “MRCo.” [↩]
At the time MRCo amended its Complaint, the Commissioner was Fermin Contreras Gómez. He was succeeded by Dorelisse Juarbe-Jimenez, who replaced him as co-defendant in March 2004. [↩]

Mariasch v. Gillette Co., 1st Cir. Mar. 27, 2008

admin — Wed, 09 Apr 2008 01:38:10 +0000

07-1549 Mariasch v. Gillette Co.
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
LIPEZ, Circuit Judge. In this diversity case, Mario O. Mariasch, a citizen of California, claims that The Gillette Company, his former employer and a Delaware Corporation, wrongfully rejected his attempt to exercise stock options that he acquired in 1995 and 1996 as part of his executive compensation package. After Mariasch retired from Gillette on April 22, 2002, he had three years to exercise these options pursuant to Gillette’s 1971 Stock Option Plan (”Stock Option Plan”). Mariasch tried to exercise the options seven days after the three-year period lapsed and was rebuffed by Gillette. He now argues that principles of contract law and equity required Gillette to accept this late exercise.
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The district court granted summary judgment for Gillette, primarily on the authority of our decision in First Marblehead Corp. v. House, 473 F.3d 1 (1st Cir. 2006), where we held that Delaware law requires the strict application of the terms and conditions of a board-approved stock option plan. We agree with the district court’s analysis and affirm its grant of summary judgment. … Mariasch v. Gillette Co.

Wheeler v. Blumling, 1st Cir. Mar. 25, 2008

admin — Tue, 08 Apr 2008 18:02:26 +0000

07-1992 Wheeler v. Blumling
Before Torruella, Circuit Judge, John R. Gibson, Senior Circuit Judge,¹ and Lipez, Circuit Judge.
JOHN R. GIBSON, Senior Circuit Judge. Ryan T. Blumling appeals from the district court’s entry of summary judgment against him in favor of D. Bruce Wheeler, on Wheeler’s claim for breach of a guaranty agreement. Blumling contends that he has two defenses to liability on the guaranty: frustration of purpose of the contract and modification of the guaranty by oral agreement. We affirm the judgment of the district court. … Wheeler v. Blumling.

Of the Eighth Circuit, sitting by designation. [↩]

Soltys v. Costello, 7th Cir. Mar. 25, 2008

admin — Tue, 25 Mar 2008 19:41:06 +0000

06-3175 Soltys v. Costello
Before EASTERBROOK, Chief Judge, and KANNE and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Christina Soltys and Danuta Pauch were seriously injured in a car accident caused by Yvonne Costello, who, at the time, was driving under the influence of alcohol. Soltys and Pauch sued Costello, who admitted liability; trial was limited to the amount of damages owed to Soltys and Pauch. The district court denied Soltys and Pauch’s eleventh-hour motion to amend their complaint to add a count for punitive damages. After the jury returned its verdict, the district court denied Soltys and Pauch’s motion for a new trial. The district court did not abuse its discretion on either of these issues, so we affirm…. Soltys v. Costello.

Rivell v. Private Health Care Sys., Inc., 11th Cir. Mar. 24, 2008

admin — Tue, 25 Mar 2008 06:24:10 +0000

07-12387 Rivell v. Private Health Care Sys., Inc.
Before ANDERSON, BLACK and HILL, Circuit Judges.
PER CURIAM: Appellants Dr. William Andrew Rivell and Dr. Alan B. Whitehorse filed this action on behalf of themselves and similarly-situated Georgia physicians. Their amended complaint pleads equitable and legal claims against The Capella Group, Inc., d/b/a/ Care Entree (“Capella”) and Private Health Care Systems (“PHCS”) for appropriation of the doctors’ names and identities to market and sell medical discount cards. On defendants’ motions, the district court dismissed the complaint, holding that the doctors’ sole remedy was on the contract they entered into with defendant PHCS. Because this holding is contrary to Georgia law, we shall reverse. … Rivell v. Private Health Care Sys., Inc.

Damon v. Moore, 1st Cir. Mar. 21, 2008

admin — Sat, 22 Mar 2008 04:49:41 +0000

07-1365 Damon v. Moore
Before Torruella and Howard, Circuit Judges, and Delgado-Colón,¹ District Judge.
DELGADO-COLÓN, District Judge. Plaintiff-appellant, Sergeant Peter J. Damon (“Damon”), a former Sergeant in the Army Reserves, appeals from the dismissal of his defamation claim stemming from the non-consensual use of an interview he conducted for NBC Nightly News (“NBC”) in the documentary “Fahrenheit 9/11” (“documentary”). According to Damon, defendants-appellees (“Appellees”), and more specifically, Michael Moore (“Moore”), the creator, writer, director, producer and narrator of the documentary, portrayed Damon as supporting the documentary’s anti-war and anti-Commander-in-Chief message by using and placing in the documentary, without his consent, a sixteen-second segment of an interview he previously conducted with NBC. In dismissing the defamation claim, the district court found that Damon’s appearance in the documentary was not reasonably susceptible of a defamatory meaning/interpretation. For the following reasons, we affirm the dismissal.² … Damon v. Moore.

Of the District of Puerto Rico, sitting by designation. [↩]
While the complaint contained, and the District Court dismissed, numerous other causes of action, the only issue before us is the dismissal of Damon’s defamation claim. [↩]

Penn-Am. Ins. Co. v. Mapp, 4th Cir. Mar. 20, 2008

admin — Fri, 21 Mar 2008 06:07:07 +0000

06-2279 Penn-Am. Ins. Co. v. Mapp
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.
KING, Circuit Judge: Penn-America Insurance Company seeks to appeal from the district court’s Opinion and Order granting partial summary judgment to ACH Corporation of Chesapeake, Incorporated, and April Dawn Mapp. See Penn-Am. Ins. Co. v. Mapp, 461 F. Supp. 2d 442 (E.D. Va. 2006) (the “Opinion”). Penn-America initiated the underlying declaratory judgment proceeding in the Eastern District of Virginia, seeking declarations, inter alia, that it had no duty to defend or indemnify its insured, ACH, against tort claims being pursued by Mapp in Virginia state court. By its Opinion, the district court resolved the duty to defend issue in favor of ACH, but withheld ruling on the indemnification issue. The court then dismissed the proceeding from its “active docket,” subject to reinstatement upon “motion by any party.” Id. at 459. As explained below, the Opinion does not constitute an appealable decision and this appeal must be dismissed. … Penn-Am. Ins. Co. v. Mapp.

REI Transp., Inc. v. C.H. Robinson Worldwide, Inc., 7th Cir. Mar. 20, 2008

admin — Thu, 20 Mar 2008 16:02:37 +0000

07-2710 REI Transp., Inc. v. C.H. Robinson Worldwide, Inc.
Before EASTERBROOK, Chief Judge, and FLAUM and EVANS, Circuit Judges.
FLAUM, Circuit Judge. C.H. Robinson Worldwide, Inc. is a freight broker (or, in its estimation, a “travel agent for freight”). REI Transport, Inc., is an Illinois trucking company that provides drayage services—in this case, the local delivery of cargo from a railroad terminal to the cargo’s final destination. The retail electronics company Circuit City hired C.H. Robinson to coordinate the shipment of several hundred DVD players from a Circuit City warehouse in California to another warehouse in southern Illinois. In so doing, C.H. Robinson contracted with REI Transport to carry the DVD players the final leg of the trip—from a train depot near St. Louis to Marion, Illinois. As it turned out, through no fault of REI Transport’s, the shipment arrived short approximately $85,000 worth of DVD players. C.H. Robinson indemnified Circuit City for the lost DVD players, and Circuit City assigned any right to recover to C.H. Robinson. Surmising that REI Transport was responsible for the loss and pursuant to its contract with REI Transport, C.H. Robinson withheld amounts from what it owed REI Transport.
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REI Transport then filed this suit in the Southern District of Illinois, alleging conversion, unjust enrichment, and that C.H. Robinson breached the parties’ contract by withholding payment. In its defense, C.H. Robinson counterclaimed that, under the Carmack Amendment, REI Transport owed more money for the damaged cargo. The district court agreed with C.H. Robinson and dismissed REI Transport’s claims. This appeal followed and, for the reasons set out below, we affirm. … REI Transp., Inc. v. C.H. Robinson Worldwide, Inc.

James River Ins. Co. v. Hebert Schenk, P.C., 9th Cir. Mar. 18, 2008

admin — Wed, 19 Mar 2008 04:50:16 +0000

06-15622 James River Ins. Co. v. Hebert Schenk, P.C.
Before: William C. Canby, Jr., David R. Thompson, and Milan D. Smith, Jr., Circuit Judges.
MILAN D. SMITH, JR., Circuit Judge: In this appeal we decide whether the district court erred in granting summary judgment to a professional liability insurer on a claim seeking a declaration of no coverage, and on counterclaims for breach of contract and bad faith under Arizona law. The insurer argued that it could permissibly refuse to provide for its insured’s defense against a legal malpractice lawsuit because the insured failed to mention the possibility of the lawsuit in the insurance application. The district court agreed and held that Arizona Revised Statutes § 20-1109 permits a denial of coverage because the insured’s omission constitutes legal fraud. The court rejected the counterclaims because the insurer provided for the malpractice defense. We reverse and remand for trial. … James River Ins. Co. v. Hebert Schenk, P.C.

TIG Insurance Co. v. Aon Re Inc., 5th Cir. Mar. 13, 2008

admin — Fri, 14 Mar 2008 06:39:08 +0000

05-11450 TIG Insurance Co. v. Aon Re Inc.
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge: TIG Insurance Company has sued its broker, Aon Re, Inc., for failing to provide complete information to a reinsurer with whom TIG negotiated a reinsurance treaty. The treaty was rescinded as a result of the incomplete information, and TIG asserts causes of action against Aon Re for negligence, negligent misrepresentation, breach of fiduciary duty, and common-law indemnity. TIG appeals the district court’s summary judgment that TIG take nothing. We affirm. … TIG Insurance Co. v. Aon Re Inc..

Wipf v. Kowalski, 7th Cir. Mar. 12, 2008

admin — Wed, 12 Mar 2008 20:07:16 +0000

06-3844 Wipf v. Kowalski
Before ROVNER, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. While performing a laparoscopic cholecystectomy to remove Nicki Wipf’s gallbladder, Dr. Lisa Kowalski accidentally cut Wipf’s common bile duct. As a result, Wipf underwent various corrective procedures with painful side effects. Wipf filed a diversity suit against Dr. Kowalski and her employer, Marshall Clinic Effingham, S.C., for medical malpractice, and a jury found Dr. Kowalski had not breached the applicable standard of care. On appeal Wipf argues the jury’s verdict is against the manifest weight of the evidence, or alternatively, a new trial is warranted based on various erroneous evidentiary and other rulings by the district court. Because the jury’s verdict is supported by the evidence and the district court did not abuse its discretion in its evidentiary and other rulings before and during trial, we affirm. … Wipf v. Kowalski.

Med. Liab. Mut. Ins. v. Alan Curtis LLC, 8th Cir. Mar. 10, 2008

admin — Mon, 10 Mar 2008 16:34:22 +0000

07-2061 Medical Liability Mutual Insur v. Alan Curtis LLC
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Murphy, Author, with Loken, Chief Judge, and Jarvey,
District Judge]
Civil case - Insurance. If presented with the question, the Arkansas
Supreme Court would determine that the three-year limitations period set
out in Ark. Code 16-56-105 would apply to actions under the Arkansas
Long Term Care Residents Rights Act; the district court did not err in
applying this limitations period or in determining that the Insurer had no
duty to indemnify defendants; district court did not err in determining that
the only claim in the underlying lawsuit covered under the insured’s
policy is the Redden estate’s breach of contract claims against
Evergreene, that the insurer had a duty to defend and indemnify
Evergreene on that claim and therefore had a duty to defend it on all of
the estate’s claims against it. Judge Jarvey, dissenting.