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ADMINISTRATIVE LAW Driving suspension valid only if reasonably based Before the suspension of driving privileges, an officer must issue a certified written report showing reasonable grounds to believe the person was in actual physical control of a motor vehicle while under the influence of alcohol, the North Dakota Supreme Court ruled on June 30. Aamodt v. North Dakota Department of Transportation, No. 20040056. One night, two plainclothes police officers in an unmarked vehicle watched Brian Aamodt and Loren Smith get out of a taxicab and walk toward a white Ford pickup. The two seemed intoxicated. Aamodt got into the truck and started the engine, while Smith relieved himself near the back of the truck. An officer approached Aamodt and asked for identification, noticing his slurred speech, bloodshot eyes and odor of alcohol. Aamodt told the officer that he had just started the truck for his friend and that he had had no plans to drive. After Aamodt refused to submit to sobriety tests, the officer arrested him. A test later showed that he had a blood alcohol level of 0.09%. At a hearing, the hearing officer suspended Aamodt’s driving privileges for 91 days. The trial court reversed. The North Dakota Supreme Court affirmed. N.D. Cent. Code � 39-20-03.1(3) requires an officer to “forward to the director a certified written report . . . show[ing] that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while [under the influence of alcohol].” Because the certified written report made by the officer only showed that the probable cause to suspend Aamodt’s driving privileges was an “odor of alcoholic beverage,” the court found that a basic and mandatory provision of the statute was not met. Full text of the decision ADR Contract’s arbitration terms bind third party A contract’s arbitration provision is binding against a third-party beneficiary who brings an action seeking to enforce the terms of that contract, a divided Tennessee Supreme Court ruled on June 28 in a matter of first impression. Benton v. The Vanderbilt University, No. M2002-00085-SC-R11-CV. Pursuant to an agreement between Blue Cross and Blue Shield of Tennessee and Vanderbilt University not to charge members full price, nearly half of Larry Benton’s hospital bill from a car accident was paid. When Benton sued the driver of the other car, Vanderbilt sought to recover the balance owed them from anything Benton won. Benton, in turn, sued Vanderbilt for consumer-protection violations predicated on an alleged breach of the Blue Cross/Vanderbilt contract. Accordingly, Vanderbilt sought to compel arbitration under that contract. The trial court refused, but the state intermediate appellate court reversed, saying that Benton was a third-party beneficiary of the contract and subject to the arbitration provisions. The Tennessee Supreme Court affirmed. A party seeking to enforce rights under a contract should not be able to interpret the contract in a piecemeal fashion, the court ruled, though the court also emphasized that third parties are to be afforded the right of judicial review. Full text of the decision CIVIL PRACTICE Schwarzenegger image case lacks jurisdiction Affirming a district court’s decision, the 9th U.S. Circuit Court of Appeals agreed that Arnold Schwarzenegger’s infringement of the right of publicity case must be dismissed for lack of personal jurisdiction. Schwarzenegger v. Fred Martin Motor Co., No. 02-56937. Fred Martin Motor Co., an Ohio car dealership, ran an advertisement in the Akron Beacon Journal five times that contained a depiction of Arnold Schwarzenegger, the governor of California and an international movie star, as the title character in the movie The Terminator. The Akron Beacon Journal is a locally circulated Ohio newspaper. Fred Martin never sought nor received Schwarzenegger’s permission to use his photograph. Schwarzenegger sued Fred Martin in the Los Angeles County Superior Court for unauthorized use of his image. Fred Martin removed the case to a federal district court in California. The federal court dismissed for lack of personal jurisdiction. The 9th Circuit affirmed, finding that there was neither general nor specific jurisdiction over Fred Martin. While the car dealership regularly purchased Asian-made automobiles that are imported by California entities; regularly retained the services of a California-based direct-mail marketing company; had hired a sales training company, incorporated in California, for consulting services; and maintained a Web site capable of being accessed by people in California, these contacts fall short of the “continuous and systematic general business contacts” necessary to establish general jurisdiction. Because Fred Martin’s creation and publication of the advertisement was expressly aimed at Ohio rather than California, there was no specific jurisdiction, either. Full text of the decision CIVIL RIGHTS Breast-feeding restriction is not discriminatory Wal-Mart stores in Ohio did not discriminate on the basis of sex when it restricted mothers from breast-feeding their babies in the store, the 6th U.S. Circuit Court of Appeals ruled on June 30 in a matter of first impression. Derungs v. Wal-Mart Stores Inc., No. 01-3498. Three women in three different Ohio Wal-Mart stores tried to breast-feed their children inside the store. All three were told by employees that they could breast-feed in the restroom or outside the store. All three women chose to leave the store. All three sued the retailer for sex and age discrimination under the Ohio public accommodation statute. An Ohio district court granted Wal-Mart summary judgment, relying on Title VII of the 1964 Civil Rights Act federal case law regarding pregnancy discrimination within a place of public accommodation. The 6th Circuit affirmed. An amendment to the Ohio public accommodation law after a case interpreted the Pregnancy Discrimination Act indicated that the state intended to include pregnancy within the definition of discrimination. Nonetheless, the court stated that the inclusion of pregnancy only extended to employment, not to situations involving access to places of public accommodation. It is clear, the court said, that no judicial body “has been willing to take the expansive interpretive leap to include rules concerning breast-feeding within the scope of sex discrimination.” Full text of the decision CONSTITUTIONAL LAW Legislators’ challenge to gay marriage fails Massachusetts legislators are wrong to claim that the state high court’s ruling allowing same-sex marriages violates the state and federal constitutions, the 1st U.S. Circuit Court of Appeals ruled on June 29. Largess v. Supreme Judicial Court for Massachusetts, No. 04-1621. In Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), the Massachusetts Supreme Judicial Court had held that refusal to marry people of the same sex violated the Massachusetts Constitution, and ordered the state to recognize same-sex marriages. Eleven members of a Massachusetts Legislature went to the Massachusetts federal court seeking to enjoin implementation of Goodridge and the issuance of same-sex marriage licenses. A same-sex couple intervened as defendants. The court denied the plaintiffs’ requests. The 1st Circuit affirmed. The plaintiffs had argued that Goodridge redefined marriage in violation of separation-of-powers principles in the Massachusetts Constitution, stating that it was the prerogative of the Legislature, not the courts, to define “marriage.” The court rejected this argument, as well as the contention that, because the constitution defines marriage as being between a man and a woman, Goodridge effected an impermissible amendment of the state constitution. Full text of the decision EMPLOYMENT X-ray subject must be informed of findings A radiologist whose firm was hired by an employer to perform a pre-employment tuberculosis test on a job applicant had a duty to tell the patient of abnormal findings, despite the fact he did advise the employer that contracted for the X-ray, the Arizona Supreme Court held on June 29. Stanley v. McCarver, No. CV-03-0099-PR. Dr. Robert McCarver Jr., a radiologist, evaluated a chest X-ray of Christine Stanley as part of a pre-employment tuberculosis screening, pursuant to a contract he had with Osborn Nelson & Car Portable X-Ray, which Stanley’s prospective employer had hired to perform the test. McCarver concluded, and wrote in his report, that the X-ray showed abnormalities, including a small nodule overlying one rib and a parenchymal pattern. He sent the report to Osborn Nelson, which forwarded it to the potential employer, Mesa Christian Care. But Mesa Christian apparently did not tell Stanley of the results. Less than a year later, Stanley was diagnosed with lung cancer. She sued Mesa Christian, Osborn Nelson and McCarver for negligence. With respect to the claim against McCarver, the trial court granted him summary judgment, but the intermediate state appellate court reversed. The Arizona Supreme Court affirmed. On this matter of first impression, the court held that McCarver had a legal duty to Stanley, despite the lack of a traditional doctor-patient relationship. McCarver should have anticipated that Stanley would want to know of a potentially life-threatening condition and that not knowing could cause her to forego timely treatment. The court said that its holding conforms with the “trend” that the absence of a formal doctor-patient relationship does not necessarily insulate a doctor from liability. Full text of the decision INSURANCE LAW Workers’ comp insurer immune to bad-faith tort Oklahoma does not recognize the tort of bad faith against a workers’ compensation insurance carrier for post-award conduct pursuant to a certified question from an Oklahoma federal court, the Oklahoma Supreme Court ruled on June 29. Deanda v. AIU Ins., No. 98986. AIU Insurance Co. issued a workers’ compensation insurance policy to Terra Telecom. An employee of Terra Telecom was injured on the job and alleged that authorization for reasonable and necessary medical expenses, payments of reimbursements, prepayment of expenses, and payment of interest were unreasonably delayed. The issue of whether the tort of bad faith may be brought against a workers’ compensation insurer for post-award conduct was certified to the Oklahoma Supreme Court. The high court determined that the Workers’ Compensation Act is exclusive as to awards and remedies related to injuries arising from the employment relationship and includes insurance carriers within its provisions. As a result, a common law tort remedy may not be substituted for the policy of the Legislature. Full text of the decision No defense insurance for convicted corrupt ex-gov Former West Virginia Governor Arch A. Moore Jr. is not entitled to a defense by his insurer in the state’s civil action to recover money the governor accepted and paid out illegally, the West Virginia Supreme Court of Appeals ruled on June 30. Moore v. CNA Ins. Co., No. 31637. Moore pleaded guilty in 1990 to multiple criminal charges relating to the illegal acceptance of cash contributions on behalf of the state’s black lung fund, and to the illegal distribution of cash to influence the election. The state filed a civil suit to recover the lost money. Moore’s insurer, CNA, refused to defend Moore in the suit. The trial court agreed with the insurer. The West Virginia high court affirmed. The wrongful acts provision of the contract covered certain acts occurring within the scope of Moore’s employment. A guilty plea to criminal charges involving public corruption are outside that scope, the court ruled, and the state’s civil action is premised entirely on the allegations made in that guilty plea. To impose a duty to defend would deprive insurers of the benefit they bargained for. Full text of the decision REAL PROPERTY Jury to decide Olympic body’s purpose for invite It is for a jury to ascertain the Olympic Committee’s purpose in inviting the public to visit Atlanta’s Centennial Park for free during the Olympics, at which a bomb exploded, for purposes of applying the Recreational Property Act (RPA), the Georgia Supreme Court held on June 28. Atlanta Committee for the Olympic Games Inc. v. Hawthorne, No. S03G1491. People who were injured or who lost family members as a result of the bomb blast in Atlanta’s Centennial Park during the 1996 Olympic games, sued the Atlanta Committee for the Olympic Games for injuries and wrongful death. The committee claimed that the RPA limits the liability of an owner of land who has made property available without charge to the public for “recreational purposes.” The trial court granted the Atlanta body’s motion for summary judgment but the appellate court reversed. The Georgia Supreme Court affirmed, holding that the RPA’s “recreational purposes” balancing test should be applied by the jury, to determine the nature and extent of the mixed uses of the property and the owner’s purpose for directly or indirectly inviting people to use the site for free. The jury must consider the totality of the circumstances, including any evidence indicating that the invitation was to derive, directly or indirectly, a financial benefit from business interests thereon, such as advertising and promotional value to conspicuous businesses there. Full text of the decision TORTS Illegitimate child’s death yields no money for dad A father may not recover proceeds from the wrongful death of his illegitimate child, the Mississippi Supreme Court held on July 1 in a case of first impression. Williams v. Farmer, No. 2002-CA-02094. When Lisa Farmer became pregnant, she contacted Derek Williams to let him know that he was the father of her child. Williams allegedly refused to have any contact with her or to acknowledge that he was the father of the unborn child. While Farmer was pregnant, she was involved in an automobile accident, resulting in the death of her fetus. Farmer filed a wrongful death suit on behalf of her unborn child, which settled for $150,000. After learning about the settlement, Williams filed a suit for one-half of the settlement proceeds. The trial court determined that Williams could not inherit from his unborn child. The Supreme Court affirmed. Miss. Code Ann. � 91-1-15(3)(d)(i) states that “The natural father of an illegitimate and his kindred shall not inherit [f]rom and through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.” Finding that the statute applies even to an unborn child, the court explained that Williams did not contribute any support to Farmer during her pregnancy, did not seek to be present during the birth and did not even know of the death of his unborn child until two years after the fact. Full text of the decision

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