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CIVIL PRACTICE ‘Firefighters’ Rule’ no bar to suit against dog owner The “firefighters’ rule,” whereby firefighters may not sue property owners for injuries they sustain fighting their fires, does not bar a police officer’s suit against the owner of a loose dog that bit her, the Wisconsin Supreme Court held on June 11. Cole v. Hubanks, No. 02-1416. Police Officer Julie Cole was on patrol when she saw a large stray dog in the street. After she grabbed the loose end of its chain and knelt down, the dog bit her face and neck, injuring her. She filed suit on theories of common law negligence and a violation of the dog owners’ statute. The trial court granted summary judgment to the dog’s owners. The appellate court affirmed. The Wisconsin Supreme Court reversed, answering in the negative the certified question as to whether the firefighters’ rule would bar police officers from suing owners of loose dogs that injure officers trying to capture them. Wisconsin’s firefighters’ rule is based on the idea that nearly all fires are started by negligence, but liability for such negligence would place too great a burden on landowners and occupiers, who should be encouraged by public policy to summon help necessary to extinguish fires before they spread. But the court said that none of the public-policy factors that supports the firefighters’ rule applied here.   Full text of the decision CRIMINAL PRACTICE OK to rest appeal on bad counsel at plea bargain A criminal defendant who rejects a plea bargain and is subsequently convicted and sentenced to a longer term may challenge his sentence based on ineffective assistance of counsel, the Massachusetts Supreme Judicial Court ruled in a matter of first impression on June 7. Commonwealth v. Mahar, No. SJC-09050. Richard Mahar faced several criminal charges for breaking into a house and brandishing a machete at his girlfriend. Mahar rejected a plea offer that would have dismissed a home invasion charge in return for a recommended six-year sentence. At trial, Mahar’s counsel failed to get the trial court to give a jury instruction related to Mahar’s alleged consent to enter the home. Mahar was convicted and sentenced to between 20 and 25 years. In a motion for a new trial, Mahar claimed that his trial counsel was ineffective in the plea stage because she mistakenly believed the judge would give a jury charge on consent. The trial court denied the motion. Though the state high court affirmed the motion’s denial, it joined at least five federal circuit courts and six state courts in holding that if a plea offer is rejected because of ineffective assistance of counsel, the constitutional harm isn’t lessened by the fact that a defendant later receives a fair trial. In this case, Mahar’s counsel’s interpretation of the applicable statutes was not unreasonable.   Full text of the decision ENVIRONMENTAL LAW No Superfund cleanup costs recovery via law The direct-action provision in the Resource Conservation and Recovery Act (RCRA) cannot be used to pursue contributions for cleanup in actions brought under the Superfund act, the 4th U.S. Circuit Court of Appeals ruled on June 8. South Carolina Dep’t of Health and Envtl. Control v. Commerce and Industry Ins. Co., No. 03-1329. Pursuant to authority granted to it under RCRA, South Carolina assumed primary responsibility for managing a fertilizer manufacturing facility’s hazardous waste program. The company later went bankrupt, and the U.S. Environmental Protection Agency went after its predecessor in ownership to pay for the cost of cleaning up the site under the Superfund act, Comprehensive Environmental Response, Compensation and Liability Act. All parties, including the state environmental office, entered into a remediation agreement. They then sued four liability insurers for cost recovery, contribution, restitution and declaratory relief. The district court dismissed the complaint. The 4th Circuit affirmed. By its plain language, and congressional intent, RCRA’s direct-action provision applies only to claims concerning present and future threats to human health and the environment. The court characterized the use of the RCRA provision as an effort to circumvent the Superfund act’s more specific direct-action provision.   Full text of the decision EMPLOYMENT Supervisor may reinstate man fired by higher-ups A state employee’s direct supervisor has the authority to reinstate him even though upper management had dismissed him, the Virginia Supreme Court held on June 10. Horner v. Dep’t of Mental Health, No. 031475. Walter Horner lost his job with a commonwealth of Virginia health services department after a medical director issued him notices for failure to follow a supervisor’s instructions. Horner contested his firing via the commonwealth’s statutory grievance procedure, which included grievance resolution steps whereby his immediate supervisor was the first-step respondent. The supervisor favored reinstatement. However, the second- and third-step respondents ruled against Horner. A Virginia trial court reinstated him. But the Court of Appeals reversed, holding that lower-level supervisors can’t have more authority on disciplinary matters than agency directors. The Virginia Supreme Court reversed, quoting the relevant statute’s mandate that “[e]ach level of management review shall have the authority to provide the employee with a remedy.” Calling this text “clear and unambiguous,” the court resolved this “matter of significant precedential value” by holding that the Legislature gave the employee the substantive right to be afforded a remedy by the first-level respondent, which, once accepted, “precluded management from contesting the first-level decision.”   Full text of the decision FAMILY LAW Marital lifestyle isn’t issue in no-contest divorce Revisiting a 2004 opinion on modifications of alimony, the New Jersey Supreme Court ruled on June 9 that in uncontested divorce actions, trial courts have discretion to approve consensual agreements without making separate marital lifestyle findings. Weishaus v. Weishaus, No. A-3/4-03. In filing for divorce from Marvin Weishaus, Sydney Weishaus listed her annual marital lifestyle amount for herself and three children at $436,140. The pair later agreed to a substantially lower amount of term alimony, though Sydney claimed that this wouldn’t be enough as it wouldn’t be supplemented by income from Marvin’s mother, company or stocks. As required by the 2004 decision in Crews v. Crews, the trial court made mandatory findings on the couple’s standard of living during the marriage, concluding that Sydney’s lifestyle would not be diminished. Sydney and Marvin then submitted a consent order stipulating to their original respective lifestyle standards, but the trial court refused to execute it, stating that it thwarted Crews and undermined judicial economy and efficiency. The appeals court affirmed. In reversing, the New Jersey Supreme Court said that judicial economy and efficiency notwithstanding, trial courts should have flexibility when considering settled divorce actions. A trial court may forgo making findings of marital lifestyle when the parties freely decide to avoid the issue as part of their mutually agreed-upon settlement, having been advised of potential problems that might arise.   Full text of the decision LEGAL PROFESSION Lien on client’s recovery requires client’s consent Under rule 3-300 of the Rules of Professional Conduct of the State Bar of California, the California Supreme Court found on June 10 that an attorney must obtain a client’s consent in writing before obtaining a charging lien against the client’s future recovery. Fletcher v. Davis, No. S114715. After Master Washer & Stamping Co. Inc. was evicted for nonpayment of rent, the landlord sued for breach of lease and refused it access to its equipment. Master Washer hired attorney Freddie Fletcher to bring a conversion action for damages, orally agreeing to pay his fee and all costs and to grant a lien on any judgment or settlement in the case. Master Washer’s president never signed a written retainer agreement. When the conversion action resulted in a mistrial, Master Washer replaced Fletcher with a new attorney, who won him a favorable judgment in a second trial for $504,000. Eleven days after the judgment, a third party filed a collection suit, seeking to stay disbursement of the judgment proceeds in order to satisfy criminal and civil judgments he held against Master Washer’s president. The next day, the landlord deposited the amount he owed from the judgment into the collection action. The parties to the collection action entered into a stipulated disbursement of the judgment. The trial court approved. When he learned of the disbursement, Fletcher filed an action against all of the parties involved. The trial court dismissed. The Court of Appeal reversed. The California Supreme Court reversed. Rule 3-300 requires a client’s informed written consent to an attorney’s acquisition of an interest adverse to the client. The court determined that a charging lien to secure payment of hourly fees is adverse to a client because it allows an attorney to detain all or part of a client’s recovery whenever a dispute arises over the lien.   Full text of the decision SOCIAL SERVICES LAW Child born after parent’s death entitled to benefits Deeming children who were conceived and born after the death of their father to be dependent on their father for purposes of the Social Security Act, the 9th U.S. Circuit Court of Appeals determined on June 9 that they were entitled to Social Security child’s insurance benefits. Gillett-Netting v. Barnhart, No. 03-15442. After an insured was diagnosed with cancer, he decided to have his sperm frozen prior to the start of chemotherapy, which can render patients sterile. Soon thereafter, he died before his wife was able to conceive. Using his frozen sperm, his wife underwent in-vitro fertilization and successfully gave birth to two children. When she tried to file an application for Social Security child’s insurance benefits on her children’s behalf based on her husband’s wages, the Social Security Administration denied her claim. When the administrative law judge also denied the claim, the new mother filed a complaint in Arizona federal court. The court held that the children did not qualify for benefits, finding under the act that they were neither their father’s children nor dependent on him at the time of his death. The 9th Circuit reversed. 42 U.S.C. 402(d)(1) of the act allows the children of individuals who die fully insured to collect benefits if the child was dependent on the wage earner at the time of his death. Since the children were the insured’s biological children, they were his children for purposes of the act. Furthermore, as legitimate children, they are automatically considered to be dependent on their parent.   Full text of the decision TAXATION Late IRS assessment not enough to merit refund In a question of first impression, the 11th U.S. Circuit Court of Appeals held on June 7 that tax payments that were properly owed and paid during the limitations period did not become overpayments simply because the Internal Revenue Service (IRS) did not get around to assessing liability for them until after the limitations period had expired. Williams-Russell v. U.S., No. 03-13868. For the years 1993 through 1995, a company filed monthly employment tax returns and deposited its employment taxes on a monthly basis. However, the IRS did not assess the company’s tax liability for those years until June 1999. Although the company had actually underpaid its employment taxes, the IRS could not collect additional taxes because the three-year statute of limitations for collection and assessment under 26 U.S.C. 6501 had expired. On two occasions in 2000, the company applied for a refund, believing that the late assessment meant that it was entitled to recovery of the taxes it had already paid. The IRS denied the claims, citing the two- to three-year limitations statute under 26 U.S.C. 6511 for refunds of overpayment of taxes. In a refund action by the taxpayer, the Georgia federal court dismissed for lack of subject-matter jurisdiction. The 11th Circuit affirmed. 26 U.S.C. 6401(a) provides that ” ‘overpayment’ includes that part of the amount of payment of any internal revenue tax which is assessed or collected after the expiration of the period of limitation properly applicable hereto.” The court stated that no overpayment exists unless a taxpayer actually paid more than it owed and filed a refund claim in a timely fashion.   Full text of the decision

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