SACRAMENTO, Calif. - Home purchasers who sued a subdivision's developer, builder and seller, alleging that the defendants manipulated the market value of the homes in the subdivision in violation of the Sherman Act, failed to allege market power in the relevant market sufficient to allege a per se illegal tying arrangement, a federal judge in California ruled Feb. 28 in dismissing the claim (Connie Cherrone, et al. v. Florsheim Development, No. 12-02069, E.D. Calif.; 2013 U.S. Dist. LEXIS 27967...(read more)![]()
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Federal Judge Dismisses Antitrust Claim For Failure To Allege Market Power
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Student-Athletes' Antitrust Lawsuit Related To Scholarships Is Dismissed
INDIANAPOLIS - Student-athletes who brought a putative class action against the National Collegiate Athletic Association, alleging that three NCAA bylaws violated federal antitrust law, failed to define a legally cognizable market, a federal judge in Indiana ruled March 1 in dismissing the complaint (John Rock, et al. v. National Collegiate Athletic Association, No. 1:12-cv-1019, S.D. Ind.; 2013 U.S. Dist. LEXIS 29034)....(read more)![]()
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Tying Arrangement Does Not Violate Antitrust Law, Illinois Federal Judge Rules
CHICAGO - A federal judge in Illinois on March 13 dismissed a class action filed by a purchaser against a concert promoter who claimed that the promoter illegally tied ticket sales to parking fees in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), concluding that the tying practice did not violate federal or state antitrust laws (James Batson v. Live Nation Entertainment, Inc., No. 11-cv-01226, N.D. Ill.; 2013 U.S. Dist. LEXIS 34424; See May 2011)....(read more)![]()
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High Court Review Sought In Divestiture Case
WASHINGTON, D.C. - Polypore International Inc. is seeking U.S. Supreme Court review of an 11th Circuit decision upholding a Federal Trade Commission ruling that Polypore's acquisition of Microporous Products would substantially lessen competition in three relevant North American markets for battery separators and that a complete divestiture, including a plant in Austria, was required to restore competition in those markets (Polypore International, Inc. v. Federal Trade Commission, No. 12-1016...(read more)![]()
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2nd Circuit Won't Reconsider Sirius XM Settlement Of Class Suit Over Merger
NEW YORK - The Second Circuit U.S. Court of Appeals on March 5 denied objectors' petitions for panel rehearing and rehearing en banc of the court's Dec. 20 order upholding the approval of a settlement of a class suit accusing Sirius XM Radio Inc. of various violations in connection with the 2008 merger of the only two providers of satellite radio, XM and Sirius (Carl Blessing, et al. v. Sirius XM Radio Inc., Nos. 11-3696, 11-3729, 11-3834, 11-3883, 11-3908, 11-3910, 11-3916, 11-3965, 11-3970...(read more)![]()
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California Case Law Update: March 2013
By Cassandra S. Franklin Since our last California case law update, the California courts have issued a number of insurance coverage decisions worthy of consideration. However, two of the most interesting of these decisions are now vacated by the California Supreme Court's grant of review. See Hartford Casualty Insurance Co. v. Swift Distribution, Inc., 2013 Cal. LEXIS 1699 (Cal. Feb. 13, 2013); Henderson (Ocie) v. Farmers Group, Inc., 2013 Cal. LEXIS 283 (Cal. 2013). Thus, our report of those...(read more)![]()
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Split 11th Circuit Panel: Underlying Complaints Properly Considered In Coverage Dispute
ATLANTA - A trial court properly looked beyond the pleadings presented in a declaratory judgment case over insurance coverage available to a contractor, an 11th Circuit U.S. Court of Appeals panel majority ruled March 14, affirming the lower court's finding that an insurer did not have a duty to defend the contractor in an underlying arbitration proceeding (American Safety Indemnity Co. v. T.H. Taylor Inc., et al., No. 11-12245, 11th Cir.; 2013 U.S. App. LEXIS 5072)....(read more)![]()
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Georgia Panel: Motor Vehicle Bad Faith Provision Inapplicable To Cargo Policy
ATLANTA - A plaintiff's attempt to allege bad faith under a Georgia statute related to "motor vehicle liability insurance" fails, a Georgia Court of Appeals panel ruled March 13, because there is no basis for applying the statute to cargo liability policies such as the one at issue here (Equipco International LLC v. Certain Underwriters at Lloyd's London, No. A12A2048, Ga. App., 2nd Div.; 2013 Ga. App. LEXIS 188)....(read more)![]()
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Appeals Panel Finds Insurer Had No Standing To Sue Other Insurer For Bad Faith
SEATTLE - Reversing in part a default judgment against an insurer that did not participate in an underlying workplace injury case, a Washington appeals panel on March 18 held that a second insurer did not have standing under Washington's Consumer Protection Act (CPA) or Insurance Fair Conduct Act (IFCA) to bring bad faith claims on an insured's behalf (Trinity Universal Company of Kansas v. Ohio Casualty Insurance Co., No. 67832-9-I, Wash. App., Div. 1; 2013 Wash. App. LEXIS 591)....(read more)![]()
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Insured's Settlement Made Without Insurer's Approval Deemed Not Binding
COLUMBIA, S.C. - A South Carolina federal judge on March 21 held that because a policyholder entered into a settlement agreement without his insured's consent, that agreement was not binding on the insurer and never triggered coverage under his policy (Peak Property and Casualty Insurance Corp. v. Thomas Davis, et al., No. 3:12-cv-01689, D. S.C.; 2013 U.S. Dist. LEXIS 39406)....(read more)![]()
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Lack Of Record Evidence Dooms Restaurant Owner's Bad Faith Claim, Judge Rules
PHILADELPHIA - A man whose business was damaged by a fire failed to establish any of the grounds for alleged bad faith against his commercial insurance provider, a Pennsylvania federal judge ruled March 22, finding no evidence that the insurer acted unreasonably in its payment, investigation or settlement activities (Ercole Mirarchi v. Seneca Specialty Insurance Co., No. 2:10-cv-03617, E.D. Pa.; 2013 U.S. Dist. LEXIS 40)....(read more)![]()
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Judge Finds Complaint Confusing But Denies Insurer's Dismissal Motion
KNOXVILLE, Tenn. - Although a Tennessee federal judge found that a plaintiff's complaint for benefits under the Employee Retirement Income Security Act of 1974 (ERISA) "is not sufficiently clear," he declined to grant an insurer's motion to dismiss on March 20, instead giving the claimant opportunity to amend her claims to avoid state law claims that might be precluded under ERISA (Gladys Yarboro Barnette Lloyd v. Federal Insurance Co., et al., No. 3:12-cv-00210, E.D. Tenn.; 2013...(read more)![]()
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Arby's Franchisee Properly Alleged Bad Faith In Coverage Dispute, La. Judge Finds
NEW ORLEANS - Because all of the plaintiffs in an insurance bad faith dispute are based in Louisiana, which is also where the insurance contract at issue was delivered and paid, a Louisiana federal judge on March 19 found that Louisiana law applied and denied the insurer's motion to dismiss for failure to state a claim (NOLA Ventures LLC, et al. v. Upshaw Insurance Agency Inc., et al., No. 2:12-cv-01026, E.D. La.; 2013 U.S. Dist. LEXIS 37803)....(read more)![]()
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Possible Breach, Bad Faith Found In Insurer's Failure To Cover Spoiled Wine Costs
FRESNO, Calif. - A California federal judge on March 19 denied an insurer's motion for summary judgment, holding that a retailer may be able to demonstrate that it was due coverage for spoiled wine because of an equipment failure and that the insurer conducted a biased investigation of its claim in bad faith (The Meat Market Inc. v. The American Insurance Co., et al., No. 1:11-cv-00983, E.D. Calif.; 2013 U.S. Dist. LEXIS 38118)....(read more)![]()
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Judge Permits Arbitration In Dispute Over Coverage For Sexual Harassment Award
SAN FRANCISCO - A standstill agreement entered into by the operator of a hospital and its insurer did not "supplant the parties' preexisting arbitration agreement" but served primarily to shield the insurer from further claims of bad faith during negotiations, a California federal judge ruled March 19, denying the insurer's motion to enjoin arbitration (Platte River Insurance Co. v. Dignity Health, No. 3:12-cv-02356, N.D. Calif.; 2013 U.S. Dist. LEXIS 38471)....(read more)![]()
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Judge Rules In Favor Of Insurers In Coverage Dispute Over Hurricane Ike Damage
HOUSTON - A Texas federal judge on March 25 found in favor of a primary insurer and an excess insurer in an insured's breach of contract and bad faith lawsuit arising from property damage caused by Hurricane Ike (S.R. Residence LLC v. Lexington Insurance Co., et al., No. H-10-4178, S.D. Texas, Houston Div.; 2013 U.S. Dist. LEXIS 41628)....(read more)![]()
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Judge Dismisses Breach, Bad Faith Counterclaims In Environmental Coverage Suit
SAN ANTONIO - A Texas federal judge on March 11 dismissed an insured's counterclaims for breach of contract and bad faith in an environmental coverage dispute after determining that the insured failed to prove that it was legally responsible for the obligations of its subsidiary (Chartis Specialty Insurance Co. v. Tesoro Corp., et al., Nos. 11-00927, 12-00256, W.D. Texas; 2013 U.S. Dist. LEXIS 34097)....(read more)![]()
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Who Is Entitled To The Claims File?
By John J. Pappas and Janice C. Buchman Introduction The United States Supreme Court has recognized the "attorney-client privilege" as "one of the oldest recognized privileges for confidential communications," the purpose of which is to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice."1 The "work product doctrine," which was established...(read more)![]()
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Insurer Argues It Shares Primary Coverage Liability For Fatal Truck Accident
Case: LM Insurance Corp., et al. v. Canal Insurance Co., No. 12-5857, 6th Cir....(read more)![]()
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7th Circuit To Rule On Injured Worker's Status As 'Contractor'
Case: Atlantic Casualty Insurance Co. v. Paszko Masonry Inc., et al., Nos. 12-2405 and 12-2485, 7th Cir....(read more)![]()
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