Day on Torts

July 27, 2007

Can A Special Needs Trust For a Child Escape An ERISA Subrogation Interest?

This decision from a federal judge in Pennsylvania will cause excitement throughout the tort bar: he ruled for a plaintiff who worked to protect assets from a claimed ERISA subrogation interest by having the proceeds of a settlement go from the defendant to a special needs trust.

Law.com published this article about the decision from Judge John P. Fullam. The article does a nice job of explaining the articles put forward by all parties.

If you want to read the full decision in Mills v. London Grove Township, 2005-00122 (July 19, 2007), click here.

July 25, 2007

Oral Arguments in Knoxville

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court will hear arguments in the following cases that are of interest to tort lawyers in Knoxville on September 6:

Konvalinka v. Chattanooga-Hamilton County Hospital Authority – (Swiney, author) (Susano & Lee) –
1. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt without any evidentiary hearing;
2. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt when case law supports a separate request for documents pursuant to a statute not being in violation of a stay of litigation.
3. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt for pursuing a Tennessee public records act request when only lower court proceedings in the Stratienko action were stayed, and not a separate action to enforce the right of access to public documents.
4. Whether the Court of Appeals erred finding contempt when counsel acted in good faith and reasonably interpreted the stay order at issue pursuant to existing law.
5. Whether the Court of Appeals erred in not remanding this matter for production of the requested documents, and in not awarding attorney’s fees pursuant to the valid public records act request.

Tenn. Farmers Life Reassurance Co. v. Rose – (Susano) (Franks, concurring;
Swiney, dissenting)
1. Whether the C/A erred in affirming the Trial Court’s grant of summary judgment by concluding that the attorney in fact under the durable general power of attorney did not have the specific authority to execute an effective life insurance change of beneficiary form, notwithstanding the
fact that the power of attorney specifically authorized the attorney in fact to "transact all insurance business", to "take any other action necessary or proper in this regard . . .", and to "execute and perform all and every act and thing whatsoever without limitation whatever and without being confined to the specific acts hereinabove set out . . . ."

July 23, 2007

An Analysis of the Murphy Opinion

by The Law Offices of John Day, P.C.

Sylvius von Saucken, a partner in the Garretson firm, has written this analysis of the opinion in Murphy v. United States, released by D.C. Court of Appeals on July 3, 2007. The case addresses the taxability of damage awards in cases alleging emotional distress.

Here, in bold, is his analysis of the decision:

On July 3, 2007 the highly anticipated Murphy decision was handed down following its rehearing on April 23, 2007. The original three judge panel (for the D.C. Court of Appeals) reheard the case following the Government’s Petition for a Rehearing En Banc. This case has a rather unusual procedural history because it is atypical for a court to vacate its own opinion, which in turn renders an existing Petition for a Rehearing en banc moot, and then rehear the case. The court’s impetus for doing so remained a mystery up until Tuesday. In the recent decision the court explained its actions. In its Petition for a rehearing the Government raised a new constitutional issue, as the Government argued “even if Murphy’s award is not income, there is no constitutional impediment to taxing it because a tax on the award is not a direct tax and is imposed uniformly.” This issue apparently triggered the court to vacate its earlier opinion and effectively gave the Government another try.

July 20, 2007

Law Review Article

by The Law Offices of John Day, P.C.

The Michigan Law Review has published an interesting article called "Doctors & Juries" by Philip G. Peters, Jr.

Here is a synopsis of the article: "Physicians widely believe that jury verdicts are unfair. This Article tests that assumption by synthesizing three decades of jury research. Contrary to popular belief, the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers."

One of his conclusions: "As a consequence, politicians and critics of jury performance in medical malpractice cases should think twice before concluding that doctors will be treated more favorably in health courts."

July 18, 2007

Poll About Attitudes of Voters (Read: Potential Jurors)

by The Law Offices of John Day, P.C.

Ken Shigley has an interesting post listing some poll results that have been circulated in AAJ materials in recent days.

July 17, 2007

Justice Progarms – 2008

by The Law Offices of John Day, P.C.

Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I are sponsoring our annual "Justice Programs" seminars again this Fall. Here is the schedule for this two-day, fifteen-hour program.

First Day

8:00 – 8:30 Registration
8:30 – 10:15 Tort Law / Comparative Fault
10:15 – 10:30 Break
10:30 – 11:30 Dealing with Difficult Judges
11:30 – 12:15 U.S. Supreme Court Review
12:15 – 1:15 Lunch on your own
1:15 – 2:30 Tort Law / Comparative Fault (cont’d)
2:30 – 2:45 Break
2:45 – 4:15 Evidence in the Trenches
4:15 – 4:30 Break
4:30 – 5:45 Business Torts – The State of Tennessee’s Law

July 16, 2007

Back from Chicago

by The Law Offices of John Day, P.C.

I have been in Chicago for the last four days, attending the Board meeting of the National Board of Trial Advocacy and spending time with my son , MIchael. We saw the Cubs beat the Astros Saturday afternoon and took in a street fair in Chinatown yesterday. It was a great trip.

I apologize for the problem with the links to the last few posts. I have brought the issue to the attention of my service provider and assume that it has been fixed.

July 16, 2007

“High – Low” Agreement Must Be Disclosed to Adversary

by The Law Offices of John Day, P.C.

The highest court of New York has ruled that a "high-low" agreement must be disclosed to the judge and to non-settling defendants.

This is what the Court said:

To ensure that all parties to a litigation are treated fairly, we hold that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). This result strikes a proper balance between this State’s public policy of encouraging the expeditious settlement of claims, and the need to ensure that all parties to a litigation are apprised of the true posture of the litigation so they may tailor their strategy accordingly. Disclosure provides a non-agreeing defendant a meaningful opportunity to place on the record how it intends to use the agreement at trial, if at all, and affords the trial court an opportunity to weigh the interests of all the parties in considering the extent to which an agreement may be utilized in that forum. Of course, the determinations as to what effect, if any, the existence of the agreement will have at trial, including whether such an agreement should be disclosed to the jury, are matters that lie within the sound discretion of the trial court.

July 11, 2007

Taxability of Damage Awards

by The Law Offices of John Day, P.C.

The D.C. Circuit Court of Appeals has released an en banc opinion in Murphy v. Internal Revenue Service, No. 05-5139 (July 3, 2007).

The summary of the opinion as prepared by the Court: "Marrita Murphy brought this suit to recover income taxes she paid on the compensatory damages for emotional distress and loss of reputation she was awarded inan administrative action she brought against her former employer. Murphy contends that under § 104(a)(2) of the Internal Revenue Code (IRC), 26 U.S.C. § 104(a)(2), her award should have been excluded from her gross income because it was compensation received “on account of personal physical injuries or physical sickness.” She also maintains that, in any event, her award is not part of her gross income as defined by § 61 of the IRC, 26 U.S.C. § 61. Finally, she argues that taxing her award subjects her to an unapportioned direct tax in violation of Article I, Section 9 of the Constitution of the United States.

We reject Murphy’s argument in all aspects. We hold, first, that Murphy’s compensation was not “received … on account of personal physical injuries” excludable from gross income under §104(a)(2). Second, we conclude gross income as defined by § 61 includes compensatory damages for non-physical injuries. Third, we hold that a tax upon such damages is within the
Congress’s power to tax."

July 10, 2007

Don’t Do This

by The Law Offices of John Day, P.C.

Put this is the "You ain’t gonna believe this" department.

A New Jersey firm admitted "that an associate — with two partners’ knowledge — asked a bank representative whether a client, Kennedy Funding Inc. of Hackensack, could purchase the personal mortgages of the attorney suing Kennedy Funding in four federal fraud cases. Such a purchase would have made Kennedy Funding, a commercial lender, the holder of the home and office mortgages of adversary Gregg Trautmann, who has a firm in Rockaway, N.J."

The judge handling court cases was not amused. Read more here.