Lawyers USA

Student Loans May Be Discharged Due to Undue Hardship, Rules 9th Circuit

An unemployed debtor may obtain an undue hardship determination substantially in advance of the time she completes payments under her Chapter 13 bankruptcy plan, the 9th Circuit has ruled. The debtor had been making payments on her $100,000 in student loans since 1999. She filed for bankruptcy in 2004 and the court confirmed a five- year repayment plan. But after losing her job in early 2005, she petitioned to have the repayment of her student loan debts declared an undue hardship under 11 U...

Sun Glare May Absolve Driver of Negligence, Rules Kansas Supreme Court

A driver in not necessarily negligent per se in causing an accident if he failed to yield the right of way by entering an intersection when his vision was hindered by the light from the setting sun, the Kansas Supreme Court has ruled. The plaintiff and defendant were approaching an intersection in their vehicles in the early evening on a sunny day from the west and north, respectively. Stop signs controlled traffic on the defendant's street as it entered the intersection. The defendant looke...

Divorced Officer's Life Insurance Benefits Go to Ex-Wife, Rules 9th Circuit

A divorce judgment did not divest a life insurance beneficiary of her right to life insurance benefits under her ex-husband's policy, even though he had remarried and intended to change beneficiaries when he died, the 9th Circuit has ruled. The officer was killed in the line of duty. The divorce judgment awarded "all right, title and interest in any and all [of his] retirement/pension, 457(b) plans, 401(k) plans or other deferred benefits" in the officer's pension plans to him. But the judgm...

Homeowners Not Liable for Landscaper's Electrocution, Rules California Supreme Court

Homeowners cannot be held liable for the death of an unlicensed landscaper's employee who was electrocuted while trimming trees on their property, the California Supreme Court has ruled. The homeowners had a verbal agreement with the decedent's employer to do the tree trimming after the local utility failed to do so. They were uninvolved in the project, leaving it to the landscaper to manage the work. The employee was killed when his pole saw touched a clearly visible high voltage power line.

Gastric Bypass Surgery Covered by Workers' Comp, Rules Oregon Court of Appeals

Gastric bypass surgery that was medically necessary to permit a knee replacement for a work-related injury to succeed is compensable, the Oregon Court of Appeals has ruled. The employee suffered a work-related knee injury in 1976 when he weighed 225 pounds. He began gaining weight immediately after the injury and by 1996 he weighed 320 pounds. His doctors began considering controlling his weight through gastric bypass surgery. He re-injured his knee while working for another employee and gai...

Underinsured Motorist Claim Part of Bankruptcy Estate, Rules 11th Circuit

A claim for underinsured motorist benefits arising after a bankruptcy plan has been confirmed but before payments are complete becomes property of the estate, the 11th Circuit has ruled. The debtors were a husband and wife who filed for bankruptcy and had a confirmed plan requiring them to pay $516 per month to the bankruptcy trustee for distribution to creditors. Six months after the plan was confirmed, the husband was injured in a motor vehicle accident. He settled the case against the dri...

University Harassment Policy Violates Free Speech, Rules 3rd Circuit

Temple University's sexual harassment policy is unconstitutionally overbroad, the 3rd Circuit has ruled in permanently enjoining its future application. The plaintiff was a member of the Pennsylvania National Guard and a graduate student pursuing a degree in military history. After completing his course work he sued the university, seeking an injunction prohibiting the university from applying its sexual harassment policy. The policy prohibits "expressive, visual or physical conduct of a se...

Debt Collector's Phone Calls Violate Fair Debt Act, Rules U.S. District Court in Illinois

A debt collector's telephone calls and voice mail messages after receiving a cease-and-desist letter violate the Fair Debt Collection Practices Act, even though they never specifically referenced the debt, a U.S. District Court in Illinois has ruled in granting partial summary judgment for the debtor. The debt collector purchased an account from a credit card company on which the plaintiff had previously defaulted, and began collection efforts. The plaintiff sent a cease-and-desist letter by...

Home Lenders Can't Arbitrate Predatory Loan Claims, Rules Kentucky Court of Appeals

Lenders that commenced a foreclosure action on a home aren't entitled to arbitrate the homeowners' counterclaim for relief under federal predatory lending laws, the Kentucky Court of Appeals has ruled. The lenders filed a foreclosure action when the homeowners allegedly failed to pay amounts due under a $40,000 promissory note and mortgage on their home. The homeowners filed a counterclaim, alleging that the loan was a predatory high cost loan subject to rescission pursuant to the federal Ho...

Claim Over Artificial Hip May Not Be Time-Barred, Rules 7th Circuit

A product liability claim over an allegedly defective artificial hip isn't necessarily time-barred, even though it was filed more than two years after a doctor first told the plaintiff it needed to be replaced, the 7th Circuit has ruled in reversing a summary judgment. The plaintiff began experiencing pain and difficulty with walking less than four years after having her hip replaced with the defendant's prosthetic device. Her doctor diagnosed her as having a degenerative bone condition, and...

Co-Tenant's Consent to Search Is Valid, Rules 7th Circuit

A home's resident can consent to its search, even though a co- tenant had objected to the search before he was arrested, the 7th Circuit has ruled in denying a motion to suppress. Police responded to a report of domestic abuse at the home of a married couple. They encountered the wife outside the house, who told them her husband had choked her and thrown her out. The wife said that she wanted the husband arrested and that she would press abuse charges against him. She also stated that he had...

Plaintiff Can Get Enhanced Attorney Fees Under Fair Debt Act, Rules U.S. District Court in Ohio

The Fair Debt Collection Practices Act supports an enhanced attorney fees for a debtor who had a law firm try to garnish her exempt Social Security disability payments, a U.S. District Court in Ohio has ruled. The firm obtained a default judgment against the plaintiff judgment for the firm's client. The law firm then initiated a garnishment order. The garnished funds were primarily the plaintiff's Social Security disability payments, which are exempt from garnishment. The plaintiff hired two...

Attorney Fee Dispute Not Subject to Arbitration, Rules Nevada Supreme Court

A Nevada law firm cannot be compelled to arbitrate a fee dispute based on an arbitration clause in the retainer agreement between its client and an affiliated California firm, the Nevada Supreme Court has ruled in denying a motion to compel arbitration. The client was an insurer that retained a California law to provide services in that state pursuant to several agreements that all included a mandatory arbitration provision. The client then entered into an oral agreement with one of the firm...

'Junk Fax' Plaintiff Can Get $500 Per Fax, Rules New Jersey Appellate Division

A plaintiff who received repeated unsolicited faxes can collect $500 in damages per fax under the Telephone Consumer Protection Act, regardless of whether actual damages resulted, the New Jersey Appellate Division has ruled. The plaintiff repeatedly received unsolicited faxes advertising various construction services, all of which originated from the same telephone number but ostensibly were sent from six different contractors. He contacted the source and requested the communications cease. ...

Toxic Tort Suit Can Be Removed to Federal Court, Rules 7th Circuit

A toxic tort lawsuit filed on behalf of over a hundred plaintiffs in Illinois state court could be removed to federal court, even though the plaintiffs argued that their claim was not a "mass action" under the new federal class action reform law, the 7th Circuit has ruled. The Class Action Fairness Act creates federal jurisdiction for "mass actions" in which plaintiffs propose a trial involving the claims of 100 or more litigants. Under 28 U.S.C. [section]1332(d)(11), such claims may be rem...

Claim Against Medical Device Maker's Representative Not Preempted, Rules U.S. District Court in Va.

A negligence claim against a medical device manufacturer's representative who advised a doctor during surgical implantation is not preempted by the Medical Device Amendments to the Food, Drug and Cosmetic Act, a U.S. District Court in Virginia has ruled. The plaintiff underwent a surgical procedure to implant an FDA-approved device to address menorrhagia - an abnormally heavy and prolonged menstrual period. A corporate representative for the manufacturer advised and directed the surgeon in a...

Lawyers' Letters About Opposing Party May Be Defamatory, Rules U.S. District Court in Virginia

Lawyers for a woman involved in a custodial dispute may be liable for defaming her ex-husband in letters to his law school and the American Bar Association, a U.S. District Court in Virginia has ruled. The lawyers represented the plaintiff's ex-wife, who sought to recover damages for the plaintiff's removal of the children from her custody without her consent. A judge awarded the woman and her children $688,500 and attorney fees and costs of $272,255.

Arbitration Provision Can't Bar Class Actions for Small Claims, Rules New Mexico Supreme Court

An arbitration provision that prohibits class relief for small consumer claims violates public policy and is unenforceable, the New Mexico Supreme Court has ruled. A consumer purchased a computer on the defendant's website and later filed a putative class action under state consumer protection law claiming the defendant systematically misrepresented the memory size of its computers. But the consumer alleged his damages totaled no more than $20.

Seminary Students Can't Sue for Harassment, Rules New Jersey Supreme Court

An elderly male tenant's persistent advances toward two female seminary students did not support their sexual harassment claims against the seminary, the New Jersey Supreme Court has ruled. The students complained to a seminary administrator that an elderly man who was a graduate and a "public" tenant in campus housing had repeatedly and persistently made advances toward them that they found harassing. Although the man repeatedly sought dates with the students over several years, none of his...

Prior Evidence of Abuse May Be Admissible Despite Rape Shield Law, Rules New Jersey Supreme Court

Expert testimony regarding Child Abuse Accommodation Syndrome was admissible in a sexual abuse prosecution, but its admission can open the door to evidence of third-party sexual abuse despite a state rape shield law, the New Jersey Supreme Court has ruled. A 14-year- old girl with a heroin addiction told her psychologist that she had been raped by the defendant. Her psychologist disclosed that information to the state children's services agency. During interviews with law enforcement officer...