Saturday, March 29, 2003

Bond requirement eliminated in auto cases
On Thursday, Governor Wise signed into law SB 52, which eliminates the need for a $100 bond when filing a complaint against a non-resident motorist. Former subsection (d) has now been removed from W. Va. Code § 56-3-31.
Gov. Wise signs international adoptions bill
Dominion Post
Much of the bureaucratic red tape surrounding international adoptions is expected to disappear under a bill signed into law Friday by Gov. Bob Wise.
California closer to Net sales tax
ZDNet News
The boom times are gone, and the dot-coms are no longer the darlings of state governments. California, which faces a 35-billion dollar budget shortfall, looks to take the lead in the collection of sales taxes for goods purchased over the internet.

The federal moratorium on the collection of internet sales taxes expires in November of 2003. West Virginia is one of 35 states that signed on to the Streamlined Sales and Use Tax Interstate Agreement, which provides the states with a blueprint to create a simplified sales and use tax collection system that removes the burden and cost from sellers. California is one of the states that has not yet signed on.

Friday, March 28, 2003

Labor Dept. Proposes Extending Overtime Wages (Associated Press)
"New federal regulations proposed Thursday could drastically change, for the first time in half a century, which workers qualify for overtime wages."

There is no doubt that the current regulations are illogical and the tests convoluted, but this overhaul looks like an expensive proposition for employers. The article estimates the changes could cost employers from $870 million to $1.57 billion dollars. Why does simplification have to be so costly?

Under current rules, an employee earning only $155 a week ($8,060 per year!) can qualify as a “white collar” employee not entitled to overtime pay. This would result in a salary below the wage that would be earned by a person earning the minimum wage and working 50 40-hour weeks per year. The Department’s proposal would raise this minimum salary to $425 a week ($22,100 per year)—an increase of $270 a week and the largest increase since the Fair Labor Standards Act was passed by Congress in 1938. This would affect many assistant manager types in retails stores and restaurants who are often salaried, but at very low rates. The most likely reaction by employers would be to raise the salaries to the minimum level to avoid paying overtime.

The new proposals are subject to a 90-day public comment period. They require no congressional action and could become official late this year or early next, according to the article.

An overview of the changes can be found here at the DOL's website.

Thursday, March 27, 2003

Victory for IOLTA Programs at Supreme Court
For the last several years, at every state and local bar meeting we attend, at least one speaker mentions the IOLTA "takings" cases. Finally, a resolution! The U.S. Supreme Court yesterday ruled 5-4 that states may pool clients' escrow funds in bank accounts and give the interest to legal aid programs.

Tuesday, March 25, 2003

Survey reports that WV is one of the least-educated states
Channel 25 reports that "West Virginia has the lowest percentage of people with four-year college degrees and the second-lowest percentage of residents with high school diplomas."

The only state having fewer people without high school diplomas? Texas.
Wise may seek .08 legislation during special session
The Governor may introduce legislation to lower the blood alcohol limit in order to secure more federal funding for highway repairs. The states failure to lower the limit from .10 to .08 has jeopardized $2.5 million in highway funds. It is anticipated that a special session will be held to work out a workers' compensation reform bill. No date for the session has been set.

Interesting side note: Special sessions cost the taxpayers $35,000.00 per day.
Supreme Court Changes Venue
Supreme Court Clerk Rory Perry notes his move yesterday to the WVU College of Law in Morgantown where the Court will hold oral arguments today. The webcast will be up and running.

Monday, March 24, 2003

Workers' compensation crisis
The workers' compensation deficit is still on everyone's mind. The Daily Mail reports here on a recent survey showing that over the last 5 years, West Virginia has consistently been in the top ten states for the number of families receiving household income from workers compensation. Since 1998, between 2.4 and 3.7 percent of West Virginia households have captured income from workers' comp.

The Clarksburg Exponent Telegram reflects on the recent resignation of Dale Newell as Workers' Compensation Director: "Newell was an outsider from Seattle. He had a great reputation in the private insurance industry. If anybody could have fixed the problem, it was probably Newell because he would have approached it as a business. Now there's a refreshing concept -- government operated as a business."
Ruling on junk fax boosts antispam effort
ZDNet News
The Eight Circuit ruled on Friday that a law restricting junk faxes was constitutional, setting a precedent that favors legal attempts to restrict unsolicited e-mail.

West Virginia has its own anti-spam law, West Virginia Code 46A-6G-2, which to my knowledge has never been challenged as unconstitutional.

Friday, March 21, 2003

Can public schools ban students from displaying the Confederate Flag?
According to the 11th Circuit, the answer is yes. Thanks to Howard Bashman (How Appealing) for the pointer to this per curiam opinion (pdf).

Thursday, March 20, 2003

Privileged files in bad faith litigation
Rory Perry's Radio Weblog
Rory Perry notes in this post that "[t]he Court is presently considering five writs of prohibition arising from four different lawsuits involving whether, in bad faith litigation, files containing communications between the insurer and counsel should be disclosed during discovery." He provides an update on the status of all of these cases in his weblog.

Folks, this is the kind of information you just don't get from supreme court clerks in other states (unless you call the clerk yourself).
Blawgs: More than just fluff
This article, authored by Robert J. Ambrogi (who himself is a law, rounds up a host of law blogs containing "practical information" for lawyers. I am happy to say that this blog is among the blogs featured! It's certainly great to be mentioned alongside many terrific law blogs out there that I follow on a regular basis.
Fallout from the last legislative session
The Charleston Daily Mail reports that Medical Assurance, one of the state's surviving private medical malpractice insurers, is taking a "wait and see" approach to lowering its premiums. The company is concerned that the supreme court may strike down the recently passed tort reform legislation.

The Daily Mail also reports that yesterday morning, Dale Newell, the Executive Director of the Workers Compensation Division, resigned. He cites the failure of the legislature to pass needed workers compensation reforms as the primary reason.

Tuesday, March 18, 2003

WV will have new program for choosing Gov't. officials
According to this piece posted on WHAG-TV 25's website, "[a]t a meeting on Monday afternoon at Westview Baptist Church in Martinsburg, Secretary of State Joe Manchin met with over a hundred seniors to discuss a new voter education program. Manchin said candidates can now inform voters about their platforms online." Manchin added that "[t]here will be background information and candidates will have a 3-minute video. It's all positive, nothing negative."

Now, exactly how does the Secretary of State plan to screen the content to keep out negative campaign information?

Monday, March 17, 2003

West Virginia lawmakers pass $3 billion budget
This Dominion Post article contains a good summary of the new budget. Spending has increased by 2%, and exceeded Governor Wise's request by $1.3 million.

Funding for computers in the classrooms was cut by $9 million.
Housekeeping Note
To the extent possible, I am going to stop linking to articles in the Charleston Gazette. The Gazette now requires readers to register and log in as members to view their 14-day news archive. Only articles from the current day are viewable without logging in.

Sunday, March 16, 2003

Some interesting employment law decisions from other circuits
Over the weekend, I noticed a couple of interesting cases from other circuits last week in the employment law arena. In Stanek v. Greco, No. 02-1170 (6th Cir. 3-14-03) the 6th Circuit, making an Erie guess, recognized under Michigan law a claim for tortious interference with an at-will employment relationship. In that case, the plaintiff employee complained to the corporation's counsel that the corporation's new president (defendant Greco) was making personal purchases in violation of the company's written policies and procedures. The employee claimed Greco began retaliating against her when he discovered her complaints, and ultimately fired her. She claimed his conduct lacked any relationship to the interests of the business and was based upon his animus towards her because she complained about his personal use of company funds. The District Court dismissed the suit, holding that the claim of intentional interference with an at-will employment relationship was not viable under Michigan law. The 6th Circuit disagreed, finding the claim was viable.

As soon as I read the facts of this case, I thought the court was going to affirm the district court because of what I thought was an obvious flaw: one cannot tortiously interfere with his own contract (or, presumably, his own at-will employment relationship). Because the alleged interferor was the president of the corporation, I thought this one was a no-brainer--the plaintiff is out of court. The 6th Circuit did address this potential problem, but left the issue for the district court to resolve. The Court pointed out some opinions of Michigan's intermediate level court of appeals (which, by the way, was split on the issue of the viability of the tort) holding that when the plaintiff sues a supervisor, he must show "that the supervisor acted solely for his or her own benefit without regard to the corporation's interest." This is a tough burden.

I don't recall seeing a claim of tortious interference with an at-will employment relationship under West Virginia law. I am wondering if the claim would be viable here, and if so, why don't we see it alleged more often? Generally, employees use the public policy exception or, if they are government employees, the whistleblower statute (W.Va. Code 6C-1-1 et seq.) in cases like Stanek.

Another decision I thought interesting was Wood v. Green, No. 02-12971 (11th Cir. 3-13-03). In that ADA case, the 11th Circuit adopted the 4th Circuit's position that a request for a leave of absence of indefinite duration is not reasonable under the ADA. In Wood, the employee suffered from cluster headaches that caused him to miss weeks and sometimes up to 3 months of work at a time. The Court held that "[n]othing in the text of the reasonable accommodation provision requires an employer to wait for an indefinite period for an accommodation to achieve its intended effect." (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)). Leaves of absence for medical problems remains one of the toughest areas for employers seeking to comply with the ADA while still maintaining an efficient workforce. Indefinite leaves of absence are especially hard for employers to deal with.

Friday, March 14, 2003

Technology cut in budget proposal for state schools
House bill lops off about $17M

Dominion Post
"Funding for computers and Internet access in public schools would be cut under a budget proposal passed by the House of Delegates, the state Board of Education learned Wednesday."

I know we are facing a $250 million budget shortfall. I know that education spending comprises over half of our total budget, and that we would be hard-pressed to balance the budget without cutting education at all. But an across the board "no new wiring, no new computers'' policy is uncalled for. Taking computers away from kids today is like taking the books away. If the library's computers go down, access to the most helpful, most current information available to the children would be lost. Computers and internet access should not be treated as luxury items. We should not categorically cut them out of the budget.
Med Mal Reform on at the Federal Level
Dominion Post
"By a 229-196 vote, the House passed a bill Thursday that would cap noneconomic damages, such as compensation for loss of a limb or sight, at $250,000. The bill would not limit compensation for medical bills, funeral expenses and other economic damages."

The article notes that states could pass legislation to exceed the bill's cap, but would have to have some sort of limit in place.

Tuesday, March 11, 2003

Legislature passes 255 bills, including 181 on final night
This article in the Charleston Gazette lists all of the 255 bills passsed by the legislature in the most recent term.

Some of the more noteworthy legislation now awaiting action by the Governor include:

HB 2122: relating to medical professional liability reform
SB 105: increases the cigarette tax increase from $0.17 to $0.55 per pack
SB 213: reforms venue guidelines for use of West Virginia courts;
SB 107: an amended version of the Governor's proposal for another sales tax holiday during back-to-school shopping time;
SB 583: increasing legal weight limits for coal trucks on certain roads while increasing enforcement of truck weight laws;
SB 646: permitting the establishment of centers for economic development and technology;
SB 558: allows for sales tax increment financing outside of incorporated areas;
HB 3155: restricts public, media or competitors' access to a company's confidential and strategic business information that is included in filings for air permits;
HB 2669 to provide a three-year sunset on the hazardous waste management fee.

Notable because of its absence is HB 2120, the Workers' Compensation bill. A senate filibuster by minority leader Vic Sprouse (R-Kanawha) prevented a Senate vote on the bill passed by the house.
Court to hear oral argument in economic development grant case
The state supreme court will hear arguments in SER WV Citizen Action Group v. WV Economic Development Grant Committee, et al., No. 31125 today at 2:00 p.m. You can tune in the arguments on the court's webcast.

The litigants will argue the constitutionality of the appointment process for the economic grant committee, among other things. Under the current system, the President of the Senate and Speaker of the House submit five names to the Governor, and the Governor then chooses three of the five for appointment. The Plaintiff alleges that the process violates the separation of powers doctrine.

The briefs and other documents related to the case can be found here.

Monday, March 10, 2003

US Supreme Court affirms fear of cancer damages in FELA suit
Rory Perry's Weblog
Rory has announced that "[t]he US Supreme Court issued its opinion this morning in Norfolk & Western Railway v. Ayers, No. 01-963, affirming the trial court's decision to allow mental anguish damages resulting from the fear of developing cancer to be recovered under FELA by railroad workers suffering from asbestosis caused by work-related exposure."

Friday, March 07, 2003

ABA Journal eReport
Can a law firm advertise its lawyers as among the best? The Virginia Bar Council took a stand, finding that such a claim violated attorney ethics rules. A federal judge called the bar council "simpleminded" for becoming embroiled in what it perceived to be a dispute between competing law firms. The bar amended its opinion February 22, and now maintains that a law firm may advertise that its lawyers are listed in a publication that purports to list the best lawyers in the country.

The federal judge was upset because the complaint about the offending ad did not come from a misled client, but from a competing law firm. In all probability, no client would ever be misled by such an ad because the claim is so subjective. I think we need to give the consuming public more credit.
Third Circuit again affirms preliminary injunction against enforcement of Child Online Protection Act
How Appealing

"The U.S. Court of Appeals for the Third Circuit has today affirmed a federal district court's injunction prohibiting enforcement of the Child Online Protection Act on remand from the U.S. Supreme Court's decision last Term requiring reconsideration."

The opinion is available online in PDF format here. [Thanks to Howard Bashman for the pointer].

Thursday, March 06, 2003

If Bork had Blogged's Modern Practice
This is a short piece about the opportunities and dangers of blogging. The author ponders whether weblogs (like this one) can have unexpected consequences for the author: "can blogs be cited, like extemporaneous notes, as evidence of one's state of mind or knowledge on a particular date? And in the patent law context, could blogging about a particular technology be construed as evidence of knowledge of prior art?"

Whenever an author publishes anything, he obviously opens himself up to criticism and the possibility that his words will be used against him somewhere down the road. But, luckily there are many people who are expressing their opinions about legal issues so that others may learn and benefit from the discourse. There is nothing more "American" than open, frank and honest discussions about our laws and lawmakers.
Legislative Update
The house and senate passed a compromise medical malpractice bill with veto-proof majorities yesterday (91-4 in the house; 33-1 in the senate). The bill includes a tort reform component, tax credit for physicians and it establishes a physician's mutual malpractice insurance agency.

The tort reform provisions, effective July 1, would cap non-economic damages at $250,000, with an exemption for $500,000 in wrongful death or impairment that prevents an individual from caring for himself. Trauma care damages also were capped at $500,000.

Doctors whose insurance premiums are between $30,000 and $70,000 would receive a 10 percent credit against the health-care provider tax they are paying. Those with premiums in excess of $70,000 would be given a 20 percent credit.

The physician's mutual company would start up no later than July, 2004.

The informed consent abortion bill (SB170) became law today without the governor's signature. The bill requires, among other things, a 24-hour waiting period before an abortion can be performed, unless the 24-hour period would present a serious health risk.

Wednesday, March 05, 2003

Senate poised to pass tax on Internet sales
Dominion Post
The Senate could pass as early as Wednesday a bill (HB3014) that would empower the state to collect an estimated $25 million to $70 million in annual sales taxes from its online shoppers.
9th Circuit Stays Enforcement of Its Pledge Ruling
The 9th Circuit Court of Appeals put on hold its ruling barring the recitation of the U.S. Pledge of Allegiance in public classrooms, pending an appeal to the U.S. Supreme Court.

In June and again last Friday, the court ruled that the pledge is an unconstitutional endorsement of religion when recited in public schools. En banc review and further petitions for rehearing have been denied.

The stay gives the school district 90 days to ask the Supreme Court to review the ruling.

Tuesday, March 04, 2003

Court finds insurer has duty to defend sexual harrasser
In Tackett v. American Motorists Insurance Co., No. 30633 (decided Feb. 28, 2003), the Supreme Court held that an insurer had a duty to defend its insured's employee in a cause of action alleging that the employee, in his/her capacity as such, intentionally caused personal injury to a third party.

Mr. Tackett, the employee seeking coverage, was an assistant manager at Gadzooks, a clothing retailer at the Huntington Mall, who allegedly "sexually harassed, molested, and violated [an] infant Plaintiff, by, among other things, making sexual innuendos to the Plaintiff; touching the Plaintiff on various parts of her body, including her breasts; entering the sanctity of her dressing room, when the said infant Plaintiff was disrobed while trying on clothes; reaching his hands under the blouse that the Plaintiff was trying on; and by doing all of the above in front of another individual."

The circuit court determined that American Motorists did not have a duty to defend Mr. Tackett as to the infant's sexual harassment claim because the policy contained an “intentional injury” exclusion.

The Supreme Court disagreed. Announcing a new rule of construction that “any question concerning an insurer's duty to defend under an insurance policy must be construed liberally in favor of an insured where there is any question about an insurer's obligations” (Syl. Pt. 5), the Court found that the personal injury coverage did not clearly exclude Mr. Tackett's intentional acts and that a duty to defend was therefore present.

Although the Court was careful to stick to its precedent holding that sexual harassment is not "bodily injury," Smith v. Animal Urgent Care, Inc., 208 W. Va. 664, 542 S.E.2d 827 (2000), it found that the allegations fell "squarely" within the following definition of "personal injury" arising out of one or more of the following offenses:

a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord or lessor;
d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or
e. Oral or written publication of material that violates a person's right of privacy.

Although the analysis is not crystal clear, the Court's use of italics in the opinion reflects that it believed the unauthorized entry into the minor's dressing room was covered by (c), and the sexual innuendo fell within (d) and (e). Because no intentional acts exclusion applied, the court found that American Motorists had a duty to defend Tackett against these claims.

Monday, March 03, 2003

Rumblings about a new intermediate-level court of appeals
As part of the workers' compensation reform bill, the legislature is considering creating a new intermediate level court of appeals that would hear workers' compensation appeals. According to this report in the Charleston Daily Mail, Justice Starcher feels the new court would be underutilized if its jurisdiction were limited to workers' compensation matters. He proposes that the new court should hear all administrative agency appeals.