Monday, June 28, 2004

When Do Papers Print the F-Word? How do newspaper editors decide?

Slate runs this article attempting to answer this question. The piece is in response to Dick "The F-Bomber" Cheney's recent use of the word on the Senate floor.

What bugs me is not that Cheney used the word, but that he won't admit that using it was wrong. Kids look up to this man. He is a heartbeat away from the Presidency and he uses language like that in front of C-SPAN and everybody? It's a continuation of one of my many complaints about the entire Bush administration. These people will never admit they were wrong about anything.

W.Va. Supreme Court holds attorneys hired to defend insureds not liable under unfair trade practices act

In two opinions issued on June 25, 2004, the West Virginia Supreme Court of Appeals clarified the applicability of the state's bad faith law (the Unfair Trade Practices Act) to attorneys hired by insurance companies to defend insureds.

For the uninitiated, West Virginia is one of only a few states that recognizes third party bad faith liability for insurance companies. In these two cases, the Court considered whether insurers can be held liable for third party bad faith for the conduct of the counsel they hire to defend their insureds.

In Rose v. St. Paul Fire and Marine Ins. Co., No. 31317 (June 25, 2004), a patient sued her physician for malpractice. During the course of the litigation, the patient alleged that the insurer's attorneys engaged in various acts of misconduct. The Circuit Court ruled that the duties imposed by the UTPA upon the insurance company are not delegable, and that the insurance company could be held liable for any violations of the Act by a defense attorney employed by the insurance company to defend an insured in an underlying medical malpractice case. The Supreme Court (Starcher, J. writing for the majority) affirmed in part and reversed in part, holding in syllabus points 5 and 6:
5. A defense attorney who is employed by an insurance company to represent an insured in a liability matter is not engaged in the business of insurance. The defense attorney is therefore not directly subject to the provisions of the West Virginia Unfair Trade Practices Act, W.Va. Code, 33-11-1 to -10.

6. A claimant can establish a violation of the West Virginia Unfair Trade Practices Act, W.Va. Code, 33-11-1 to -10, by showing that an insurance company, through its own actions, breached its duties under the Act by knowingly encouraging, directing, participating in, relying upon, or ratifying wrongful litigation conduct of a defense attorney hired by the insurance company to represent an insured.

In her characteristically scholarly concurring opinion, Justice Davis sets a high bar for claims alleging UTPA violations arising out of an attorney's misconduct: "To be held accountable under the Act for defense counsel's misconduct during litigation, an insurer must 'knowingly' encourage, direct, participate in, rely upon, or ratify litigation misconduct by defense counsel. There is no room in the majority opinion for a cause of action based upon 'should have known or could have known' allegations. A plaintiff must show the insurer had actual knowledge of the complained of misconduct."

The devil in the dicta. The majority makes an important clarification in footnote 7 that not all attorneys hired by insurance companies are immune from UTPA claims: "We do not consider, and make no judgment upon, the case of an attorney who is hired by an insurance company in other circumstances--such as to investigate or give advice upon the validity of a claim in the same fashion as a company claims representative; to defend the interests of the insurance company; or an attorney who works 'in house' for the company or in a 'captive' law firm that is employed exclusively by the insurance company to represent only the company's insureds."

In Barefield v. DPIC Co., Inc., No. 31226 (June 25, 2004), the Court held that a bad faith action under the unfair trade practices statute may be instituted against an insurer for misconduct occurring after litigation began in the underlying action. The Court did so by answering two certified questions:

(1) Can an insurance company be liable under the [UTPA] for the conduct of a defense attorney hired by the insurance company to represent the insurance company's insured in a liability matter; and

(2) Can an insurance company under any circumstances be held liable for its violations of the Act that occur after the filing of a civil action against an insured?

Regarding question number one, the Court (Starcher, J. writing for the majority) answered "no," referring to Syllabus Point 5 of Rose. "[D]efense attorneys are not engaged in the business of insurance, and the insurance company cannot be held liable for merely hiring the attorney to represent an insured. The insurance company may, however, be liable for its own conduct if it is shown that the company breached the Act by knowingly encouraging, directing, participating in, relying upon or ratifying the wrongful conduct of an attorney hired by the insurance company."

Regarding question number two, the Court answered, "yes," holding in Syllabus Points
9 and 10 that
9. The conduct of an insurance company or other person in the business of insurance during the pendency of a lawsuit may support a cause of action under the West Virginia Unfair Trade Practices Act, W.Va. Code, 33-11-1 to -10.

10. An insurance company cannot be held liable under the West Virginia Unfair Trade Practices Act, W.Va. Code, 33-11-1 to -10, for the actions of a defense attorney retained to defend an insured, when the defense attorney's strategy and tactics are a result of the attorney's independent, professional discretion with regard to the representation of the client-insured, and are not otherwise relied upon or ratified by the insurance company in a manner contrary to the Act.

The Court added in Syllabus Points 7 and 8 that
7. When an insurance company hires a defense attorney to represent an insured in a liability matter, the attorney's ethical obligations are owed to the insured and not to the insurance company that pays for the attorney's services.

8. Because a defense attorney is ethically obligated to maintain an independence of professional judgment in the defense of a client/insured, an insurance company possesses no right to control the methods or means chosen by the attorney to defend the insured.
In her concurring opinion, Justice Davis clarifies a couple of issues. First, she expressly states a holding she feels is implicit in the majority opinion regarding the applicability of the litigation privilege to bad faith cases: "for the exclusive purpose of a bad faith action, there is no litigation privilege defense to misconduct occurring in an underlying claim." Second, she notes that "[t]he decisions in this case and the Rose opinion are not to be interpreted as permitting a cause of action based upon mere aggressive tactics by defense counsel." To provide some guidance in this area, she provides "a few case illustrations of conduct that has been deemed sufficient or insufficient to support a first-party bad faith action against an insurer for defense counsel misconduct." Third, she explains that she would adopt "[t]he general rule in other jurisdictions ... that, 'while evidence of an insurer's litigation conduct may, in some rare instances, be admissible on the issue of bad faith, such evidence will generally be inadmissible, as it lacks probative value and carries a high risk of prejudice.'" All are good points.

W.Va. Supreme Court adopts "sham affidavit" rule

In Kiser v. Caudill, M.D., No. 31614 (June 23, 2004), the Court considered whether the trial court should have stricken an affidavit of an expert witness that directly contradicted his deposition testimony. Concluding that the expert had no good cause to change his testimony (such as confusion during the deposition questioning, etc.), the Court held that the affidavit was a properly stricken as a "sham affidavit."

The "sham affidavit" rule has been adopted by a majority of state and federal courts. In essence, it precludes a party from creating an issue of fact to prevent summary judgment by submitting an affidavit that directly contradicts previous deposition testimony of the affiant.

In Syllabus Point 4, the Court adopted the following formulation of the "sham affidavit" rule for West Virginia:
4. To defeat summary judgment, an affidavit that directly contradicts prior deposition testimony is generally insufficient to create a genuine issue of fact for trial, unless the contradiction is adequately explained. To determine whether the witness's explanation for the contradictory affidavit is adequate, the circuit court should examine: (1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain.

Chief Justice Maynard wrote the opinion for the majority.

Saturday, June 26, 2004

Recent decisions of the W.Va. Supreme Court of Appeals: June 17, 2004

"That's not in my job description."
In Crow v. Bd. of Educ. of Wayne County, No. 31626 (per curiam) (June 17, 2004), two teachers at an alternative school balked at a request to ride school buses on a daily basis with the students. They filed grievances, arguing that it was improper for the school board to require them to perform service personnel duties, in addition to professional teaching duties. The grievances were denied, and the denial was upheld by the circuit court.

On appeal, the State Supreme Court reversed. It found that W. Va. Code 18A-1-1(a) specifically provides that "[s]chool personnel shall be comprised of two categories: Professional personnel and service personnel." Further, the Court stated "this Court believes that positions within school systems must be designed and described in such a way as to encompass either professional duties covered by the legislative provisions governing professional positions or service duties governed by the provisions relating to service positions, but not both." The Court directed that the teachers be restored to their professional positions without the bus chaperone duties.

Bumping teachers
In Brum v. v. Bd. of Educ. of Wood County, No. 31596 (Per Curiam) (June 17, 2003), two teachers who were told they would be involuntarily transferred, took advantage of the County's "bump" policy, which allowed them to take the position of a less senior teacher in the same school. Both teachers opposed the transfers, but, to be on the safe side, took advantage of the bump policy so they could have a choice in where they would teach the next year. The school board elected to approve their bumps before hearing their grievances on their involuntary transfers. The circuit court upheld the procedure, but the Supreme Court disagreed and reversed: "[I]t was inappropriate, once the appellants had protested the involuntary transfers pursuant to the provisions of W. Va. Code 18A-2-7, for the board of education to approve their voluntary transfers pursuant to the "bump policy," until after the protest proceedings on the involuntary transfers had been completed." The Court ordered that the grievants be restored to their prior positions.

You may have been acquitted, but you're still fired.
In Montgomery v. W.Va. State Police, No. 31644 (Per Curiam)(June 17, 2004), a police officer was discovered by his co-worker passed out in a police car with a blood alcohol level of .169% He was fired and prosecuted in magistrate court for DUI, where he was convicted. On appeal to the Circuit Court, he was acquitted. He then argued that he should be reinstated to his position because "where a not guilty finding is returned, an accused is exonerated from the crime that he was charged with [and] the taint of the initial allegation is effectively removed." The State Supreme Court disagreed, holding that a preponderance of the evidence is all that is required in the administrative proceeding, and an acquittal of a criminal charge does not negate an administrative finding that the crime was committed.

Friday, June 25, 2004

Harpers Ferry man busted in super spam sting

More great press for West Virginia. First we find out "thumbs up" woman is from Fort Ashby. Now, we learn that a fellow named Jason Smathers from Harpers Ferry, an engineer working for America Online, is charged with stealing 92 million e-mail addresses of AOL customers and selling them to spammers that were peddling penis enlargement pills and online gambling sites.

Come on, West Virginians. We can do better.

Thursday, June 24, 2004

Aaaagh! There's an ad in my RSS feed!

Well, guys, it was fun while it lasted. Thus far, we've been able to receive our RSS news feeds ad free. Pure news without all the junk. But I just refreshed my RSS news aggregator and found this ad in ZDNet's RSS feed. Worse yet, I accidentally clicked on it. What a dirty trick.

I hope this is not a sign of things to come, but I'm sure it is. Why do advertisers have to go and ruin the Internet like this? Next thing you know, Blogger is going to be inserting these in your feed automatically for free users. Just you watch.

Justice Starcher to be interviewed

State Supreme Court Clerk Rory Perry notes here that Justice Starcher will be interviewed by Howard Bashman as part of his "20 Questions for the Appellate Court Judge" feature of his weblog "How Appealing." That will make some interesting reading.

Tuesday, June 22, 2004

Supreme Court invalidates state laws allowing suits against HMOs

In yesterday's decision in Aetna Health Inc., f/k/a Aetna U.S. Healthcare Inc. v. Davila, No. 02-1845 (Decided June 21, 2004), the Supreme Court held that patients can't seek large compensatory and punitive damage awards in court if their HMOs refuse to pay for doctor-recommended medical care.

The unanimous decision invalidated state patient rights laws permitting suits against HMOs. As this AP report relates, the Respondents "brought suits under a Texas patients' rights law passed when Bush was governor. During the 2000 presidential contest, Bush took credit for the law. When the issue reached the Supreme Court, however, the Bush administration sided with insurers."

You have the right to remain (almost) silent

In Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, No. 02-1845 (Decided June 21, 2004), a sharply divided Supreme Court ruled that people who refuse to give their names to police can be arrested, even if they've done nothing wrong.

Yesterday's decision was adverse to a Nevada cattle rancher Larry ''Dudley'' Hiibel, who was arrested and convicted of a misdemeanor after he told a deputy that he didn't have to give out his name or show an ID.

An investigating officer is free to ask a person for identification without implicating the Fourth Amendment, the Court ruled. And the Fifth Amendment prohibition on self-incrimination is also not implicated because "in this case disclosure of [Hiibel's] name presented no reasonable danger of incrimination."

Monday, June 21, 2004

Posthumous kids get social security

From the ABA Journal eReport:
Children conceived through in vitro fertilization after their father’s death are entitled to Social Security benefits, says the 9th U.S. Circuit Court of Appeals.
The 9th Circuit opinion, published June 9, overturns a district court ruling that the children were not entitled to federal Social Security Insurance benefits because they were not dependent on Robert Netting at the time of his death. The case was remanded to Social Security Commissioner Jo Anne B. Barnhart with instructions to award benefits.
I'm not sure how this situation is any different from one in which a father dies while his child is in utero. Certainly, the child is not dependent in that situation, either, but social security benefits are nevertheless granted.

Gillett-Netting v. Barnhart, No. 03-15442.

Sunday, June 20, 2004

Site updates

You may notice that I have made a few modifications to my template, including renaming this weblog "Brian Peterson's West Virginia Legal Weblog." This is, of course, a more descriptive title. It's a change I should have made a couple years ago.

I changed the archives to a menu system. It is one of the hacks revealed in the Blogger Help.

I completed my Blogger Profile, which gives some bigraphical information about me without transporting you to my firm's web page.

In other blawgs

Thanks to Steve Minor (SW Va Law Blog) and Denise Howell (Bag and Baggage) for the link to this site.

Also, Rick Klau is right about Corey Doctorow's genius. Take the time to read his speech. It is outstanding.

Saturday, June 19, 2004

Gmail add-ons notes that
Third party developers have stepped in with utilities that enhance and improve GMail. One utility, Mbox & Maildir to Gmail Loader allows users to upload their existing email to their GMail account. Another, POP Goes the GMail, offers the ability to access your GMail account with any POP mail reader, giving users the ability to permanently archive messages. GTray lives in your taskbar and alerts you to incoming messages. Other, more general programs, allow you to forward your Hotmail or Yahoo! Mail messages to your new GMail account. The question that remains, however, is whether Google will work with or against third party developers in GMail's future.

Friday, June 18, 2004 on West Virginia

Reading this article in written by William Saletan ("In Morgantown, W.Va., Kerry Has Been Malled"), one would think Bush has West Virginia sewn up in the upcoming election. I wouldn't be so sure.

W.Va. Supreme Court vacates $34 million punitive damages award

Yesterday, in the case of Kocher v. Oxford Life Insurance, No. 31539 (June 17, 2004), the West Virginia Supreme Court of Appeals reversed a $34 million punitive damages award in favor of an amputee who sued his insurer, Oxford Life Insurance Co., for refusing to pay out on a dismemberment insurance policy. Oxford was defaulted on liability due to its "substantial litigation misconduct during the pre-trial period - including failure to comply with discovery requests; giving false information about other claims filed against Oxford in West Virginia; and improper deposition conduct." The Court found particularly egregious an incident in which a senior vice president of Oxford paid the plaintiff a personal visit at the plaintiff's rural home, without any counsel present, to see if the plaintiff would settle the case.

The case was tried solely on the issue of damages, and the circuit judge erroneously instructed the jury that "[i]t will . . . be your duty to assess punitive damages." (Emphasis added.) The jury awarded $5,012,039.60 in compensatory damages as well as the $34 million in punitive damages.

The case has been remanded solely on the issue of punitive damages, so the compensatory award will stand.

A word of caution to "sophisticated business entities" (e.g. insurance companies): Even though the rules of professional conduct technically allow represented parties to communicate with one another without their attorneys present during litigation, DON'T DO IT unless your opponent is an equally "sophisticated business entity." Read the dicta in footnote 3 of this case and you will see that our state supreme court does not look kindly on such conduct.

Tuesday, June 15, 2004

Supreme Court holds Faragher/Ellerth defense available in constructive discharge cases

Yesterday, the U.S. Supreme Court held in Pennsylvania State Police v. Suders, No. 03-95 (June 14, 2004) that to establish "constructive discharge," a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.

The Court found the Third Circuit erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases. An employer may assert the Ellerth/Faragher affirmative defense unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation, e.g. a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.

The case resolved a split among the circuits as to whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes the affirmative defense. The Court concluded that an employer does not have recourse to the affirmative defense when a supervisor's official act precipitates the constructive discharge; absent such a "tangible employment action," however, the defense is available to the employer whose supervisors are charged with harassment.

This is a sound 8-1 decision that brings order and clarity to the constructive discharge claim. Before this case, the Court had never addressed whether constructive discharge was even recognized under Title VII.

Relax, lawyers - The doctor will see you


Relax, lawyers -- the doctors will see you after all. A doctor's proposal asking the AMA to endorse refusal of care to plaintiffs lawyers and their spouses was shouted down at the association's annual meeting Sunday, even after its sponsor, Dr. J. Chris Hawk, had it withdrawn. Hawk said he proposed the resolution to draw attention to rising medical malpractice costs ...

Monday, June 14, 2004

War's effects on Martinsburg, WV

USA Today has a great piece about the effect of the war on my community, Martinsburg, West Virginia. Bush is treading on thin ice here.

Justices Keep 'Under God' in Pledge

"Under God" is safe and secure in the pledge of allegiance, at least for the time being. As predicted by many pundits, the Supreme Court overturned the Newdow case on procedural grounds, holding that the atheist father lacked standing to sue on behalf of his minor child because of the uncertainty of his parental rights. Elk Grove Unified School Dist. v. Newdow, No. 02-1624 (June 14, 2004).

In the concurring opinions, Justices O'Connor, Thomas and Rehnquist opined that inclusion of the words "under God" does not amount to a prohibited religious affirmation.

PC tips

I picked up a few PC tips in this month's issue of Computer Shopper that I wanted to share:

Windows XP
Shutting down multiple programs
To close several program windows at once, hold down Ctrl on the keyboard, then click and highlight each application on the toolbar. Release Ctrl after everything you want to shut down is highlighted, then right-click on one of the highlighted applications and select Close Group.

Using the Windows logo key
That Windows logo key is not completely useless. It is good for a few shortcuts:
Windows + D minimizes or restores all windows (great for clearing the decks to double click that desktop shortcut and restore everything quickly)
Windows + E displays Windows explorer
Windows + R displays the run dialog box
Windows + L locks the PC (great for a quick bathroom break when your screen is full of sensitive info).

MS Excel
Keep your formatting
To keep Excel from changing the format of the text you're inputting, (like turning 7/4/04 into 1-Jul-04), type a single quote at the start of the cell ('7/4/04)

Google Tricks
Excluding words from your search
Place a minus sign [-] before a word you don't want to find in your results. Looking for a Hilton hotel and not Paris Hilton? Try Hilton -Paris.

Domain restrictions
To search only specific domain types, place a colon (:) after your search and then type the domain extension--for example,

More results per page
To change the set number of hits you see on a page, click on Preferences on the Google home page (to the right of the search bar), then select a new number of hits per page from the drop-down menu.

Google operates as a calculator. For instance, put 8*9 in the search window, hit the search button and Google displays 8 * 9 = 72. Input "500 kilometers in miles" and Google displays 500 kilometers = 310.685596 miles. Cool.

Windows XP has built in firewall. Probably not as good a ZoneAlarm, but useful nonetheless.

Thursday, June 10, 2004

Flood of litigation

If a company contributed to--but did not cause---a flood, how much of the damage can be attributed to it and how much to an "act of God?"

This AP article run in the Journal notes that the state supreme court took up the issue on Wednesday. The lawsuit seeks damages from more than 90 coal, timber and land companies, alleging that mining and logging made the floods worse. The case is being heard by a three-judge mass litigation panel, but the Supreme Court agreed to examine several legal questions, including liability, before the trial begins.

Most of the time, giving God a helping hand here on earth is not a tort, but in West Virginia--well, we'll see.

Tuesday, June 08, 2004

Judge Hallanan has died

Days after the death of the President who appointed her to the bench, Judge Elizabeth Hallanan, West Virginia's first female federal judge, has died at the age of 79.

Don't touch that fawn

In the "news you can use" department, this Charleston Gazette article taught me something new today: "[D]oes routinely leave newborn fawns by themselves, and a lot of people pick up fawns that look abandoned but really haven't been."

So if you see a fawn lying outside alone, just wait a while and the mother will usually come back to get it.

Doctor suggests refusing care to lawyers

Today's Charleston Gazette reports that "[a] South Carolina surgeon wants the American Medical Association to tell doctors they can refuse to treat trial lawyers in nonemergency cases.

Perhaps the bar should reciprocate by prohibiting representation of doctors in non-criminal matters (such as malpractice cases).

Monday, June 07, 2004

Odds of being sued by an employee

Michael Fox, over at "Jottings by an Employer's Lawyer" notes a recent study showing that a private employer's odds of being sued in a given year is one in four.

The study doesn't mention the odds of being sued in a judicial hellhole, but I'll bet it's higher.

Saturday, June 05, 2004

Fourth Circuit reverses summary judgment in discriminatory failure to promote case

Williams v. Giant Food, Inc., No. 03-1628 (June 4, 2004) (pdf), was an employment discrimination case in which a black female employee claimed Giant Food failed to promote her to a higher management position because of her race, age and sex. She also claimed constructive discharge. The district judge granted summary judgment in the employer's favor on her failure to promote claims, but the Fourth Circuit reversed. The dismissal of the constructive discharge claim on 12(b)(6) was affirmed.

The opinion contains several noteworthy rulings:

(1) "[F]ailure to promote is a discrete act of discrimination," and as such, "the continuing violation doctrine does not apply";

(2) Where there is a string of instances of failure to promote, those instances occurring outside the limitations period are barred even where the employee alleges a "pattern and practice" of failing to promote. Each failure to promote must be prosecuted within the applicable limitations period;

(3) If an employer has a formal system of posting vacancies and allowing employees to apply for such vacancies, an employee who fails to apply for a particular position cannot establish a prima facie case of discriminatory failure to promote. HOWEVER, "if the employer fails to make its employees aware of vacancies, the application requirement may be relaxed and the employee treated as if she had actually applied for a specific position."

The employee must do more than offer general testimony that she did not see the postings. In this case, the court found sufficient the employee's allegations that she checked the bulletin board daily and on certain days attached postings to, and removed them from, the bulletin board, and never saw the posting for the position she would have applied for. (In opposition, the defendant merely offered evidence of its general practice of displaying job postings in particular stores, which at the summary judgment stage, was insufficient to carry the day.)

(4) The following allegations were found insufficient to state a claim of constructive discharge: Plaintiff's "supervisors yelled at her, told her she was a poor manager and gave her poor evaluations, chastised her in front of customers, and once required her to work with an injured back." The court held that these allegations, even if true, would not establish the objectively intolerable working conditions necessary to prove a constructive discharge.

Fourth Circuit applies 4-year statute of limitations to Section 1981 claims

In James v. Circuit City Stores, Incorporated, No. 02-1257 (June 4, 2004) (pdf), the Fourth Circuit applied the catchall four-year statute of limitations found in 28 U.S.C. § 1658 to the plaintiffs' 42 U.S.C. § 1981 race discrimination claims.

The statute of limitations applies to actions arising under all federal statutes enacted after December 1, 1990. Although Section 1981 was originally enacted more than a hundred years ago, it was amended by the Civil Rights Act of 1991 to include two new subsections. Following (as it must) the holding of the Supreme Court in Jones v. R. R. Donnelley & Sons Co., No. 02-1205 (May 3, 2004), the Fourth Circuit ruled that because the Section 1981 claims in James fell under the new subsections added by the 1991 amendments, the four-year limitations period applied.