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ADR Crew’s suit against cruise line must be arbitrated The seaman employment contract exemption of the Federal Arbitration Act (FAA) doesn’t apply to an employment agreement between a cruise line and its crew members, the 11th U.S. Circuit Court of Appeals held on Jan. 18 in an issue of first impression. Bautista v. Star Cruises, No. 03-15884. The steam boiler of a cruise ship owned by Norwegian Cruise Line, exploded while the ship was in Miami, killing six crew members and injuring four others. The crew members filed separate suits against the defendants in Florida circuit court, which were removed to Florida federal court. The employment agreements contained an arbitration provision requiring arbitration “in cases of claims and disputes arising from [the seaman's] employment.” The Florida federal court granted the cruise line’s motion to compel arbitration. The 11th Circuit affirmed. The U.S. Convention on the Recognition and Enforcement of Foreign Arbitral Awards and its implementing legislation (the Convention Act) applies to written arbitration agreements arising out of legal commercial relationships and incorporate provisions of the FAA that are nonconflicting. Although Section 1 of the FAA states that “nothing herein contained shall apply to contracts of employment of seamen,” the 11th Circuit found that the exemption did not apply to the Convention Act because it conflicted with the provisions of the act, since employment contracts of seamen are legal commercial relationships. Full text of the decision CIVIL PRACTICE Civil action must be filed where defendant resides A civil action should have been filed in the county in which one of the defendants resided, the Mississippi Supreme Court determined on Jan. 20 in a matter of first impression. Namihira v. Bailey, No. 2003-IA-02479-SCT. In an action filed in Claiborne County, Miss., by Frances Fleming, a resident of that county, against drug manufacturers with principal places of business outside Mississippi, and a doctor who was a resident of Warren County, Miss., the trial court granted the plaintiff’s motion to transfer venue to Hinds County, Miss., due to an inability to seat an impartial jury. The Mississippi Supreme Court granted the doctor’s petition for interlocutory appeal of the lower court’s order. The Mississippi Supreme Court reversed and remanded. Miss. Code Ann. � 11-11-3(1) states that civil actions “shall be commenced in the county where the defendant resides or in the county where the alleged act or omission occurred or where the event that caused the injury occurred. Civil actions against a nonresident may also be commenced in the county where the plaintiff resides or is domiciled.” Since Warren County is the only county in Mississippi in which a defendant resided, the court said that the matter should have originally been filed there. While the statute allows for commencement of actions in the county where the plaintiff resides, that provision applies only where there is no resident defendant. Full text of the decision CRIMINAL PRACTICE Verdict must be oral to enable jury polling Where a trial court failed to announce a guilty verdict in open court, a criminal defendant was denied his right to poll the jury, the Maryland Court of Appeals held on Jan. 20. Jones v. Maryland, No. 59. A Maryland jury returned a verdict sheet, finding Kerwin Jones guilty of four crimes stemming from a 2001 armed robbery. However, when the court clerk asked the jury foreman to read the verdict, she asked only for the verdicts on three of the four counts, failing to ask the foreman to read the verdict on the charge of possession of a firearm by a person convicted of a crime of violence. When Jones’ counsel asked for the jury to be polled, the clerk polled the jury on only the three charges she had asked the foreman to announce in open court. Jones appealed, arguing, inter alia, that the trial court’s failure to read the fourth charge in open court required reversal on that charge. The Maryland Court of Special Appeals, the state’s intermediate appellate court, rejected Jones’ argument, holding that, where it was unmistakable that the jury found the defendant guilty, “substance will prevail over form.” In addition, Jones had not preserved the issue because he failed to object at trial or at sentencing. Reversing, the Maryland Court of Appeals held that the trial court could not legally impose a sentence for a verdict that was not announced orally in open court where the jury was not polled. After reviewing the historical importance of the oral announcement of verdicts, the court said, “we conclude that for a verdict to be considered final in a criminal case it must be announced orally to permit the defendant the opportunity to exercise the right to poll the jury to ensure the verdict’s unanimity.” Full text of the decision IMMIGRATION LAW Accord defines torture as intent to cause pain The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not prohibit the deportation of a Haitian national to a Haitian prison plagued with conditions likened to that of a slave ship, the 3d U.S. Circuit Court of Appeals ruled on Jan. 20. Auguste v. Ridge, No. 04-1739. Napoleon Bonaparte Auguste, a Haitian national living in the United States since 1987, was convicted in 2003 for attempting to sell cocaine. Immigration officials initiated removal proceedings against him. Though not contesting his eligibility for removal, Auguste claimed that the convention against torture prohibited his removal to Haiti because, as a deported drug offender, he will be detained in a Haitian jail for an indefinite amount of time in harsh conditions, including 105-degree cells, rat and lizard infestation, no sanitation system and minimal food or water. An immigration judge denied Auguste’s challenge to the deportation order, and a New Jersey district court denied Auguste’s petition for writ of habeas corpus. The 3d Circuit affirmed, ruling that for an act to constitute torture under the convention, it must be inflicted with the specific intent to cause severe physical or mental pain and suffering. When it adopted the convention, the United States expected applicants for relief to prove that it was more likely than not that they would be tortured upon removal, which Auguste has not done. Full text of the decision Alien subject to removal for smuggling in wife Although the fellow aliens he attempted to smuggle into the United States were his wife and son, an alien from Mexico was ineligible for the “family member” waiver of 8 U.S.C. 1182-and thus subject to removal from the country-because he was not yet married to his wife at the time he assisted in smuggling her into the United States, the 9th U.S. Circuit Court of Appeals held on Jan. 20. Moran v. Ashcroft, No. 02-73551. Martin Moran, a Mexican national, arrived in the United States in 1989, and in 2000, he was served with a notice of appeal, claiming removability under the Immigration and Nationality Act. Moran moved for cancellation of removal, but an immigration judge denied the motion, ruling that Moran was ineligible for cancellation of removal because he failed to meet the good moral character requirement. Specifically, the immigration judge ruled that Moran was ineligible because he had aided in smuggling his wife into the country while he was living in the United States. The Board of Immigration Appeals affirmed the immigration judge’s order, and Moran petitioned for review to the 9th Circuit. Denying Moran’s petition for review, the 9th Circuit held that, while the “family member” waiver of 8 U.S.C. 1182 provided that aliens who aided only in the smuggling of family members were still eligible for cancellation of removal, those provisions did not apply to Moran because he did not marry his wife until after he assisted in smuggling her into the United States. The court said, “The applicable language of 8 U.S.C. � 1182(d)(11) is very clear: the waiver applies to an individual who ‘has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.’ Therefore, Moran is ineligible for waiver of the alien-smuggling provision.” Full text of the decision INSURANCE LAW Doctor’s sex abuse of patient not insured Professional liability insurance does not protect a doctor from charges of sexual abuse against a patient, the Rhode Island Supreme Court held on Jan. 20 in a case of first impression. Sanzi v. Shetty, No. 2002-0443. For about eight years, starting when she was 14, Rebecca Calderone was a patient of Dr. Taranath Shetty, and sometimes worked part-time for him. When Calderone ultimately killed herself, her family sued Shetty, alleging that he had sexually abused her during her visits to his office, causing her suicide. Shetty tendered defense and indemnification of the case to his professional liability insurer, the Medical Malpractice Joint Underwriting Association of Rhode Island (JUA). After JUA denied coverage, Shetty brought a third-party claim against it. The trial court granted JUA’s motion for summary judgment. The Rhode Island Supreme Court affirmed, holding that the accusations did not fall within the “professional services” coverage of JUA’s policy, because the professional services are only remotely incidental to what is alleged in the complaint, since his professional status merely provided the perpetrator with access to the victim. The abuse was “so distinct from his medical skills, training, and practice in pediatric neurology, that the alleged abuse clearly falls outside the scope of ‘professional services.’ ” In addition, coverage is only triggered by an “ accidental” occurrence, which did not take place here, since sexual abuse carries with it an “inferred intent to harm.” Full text of the decision LABOR LAW No employee benefits for Salvation Army worker A Salvation Army alcohol therapy program participant injured while working at one of the charity’s facilities was not an employee for workers’ compensation purposes, the Arkansas Supreme Court held on Jan. 20 in an apparent case of first impression. Dixon v. Salvation Army, No. 04-545. Guy Dixon was a participant in the Salvation Army’s alcohol rehabilitation program, in which, as a condition of acceptance into the program, he agreed to live at the rehabilitation center and engage in 40 hours of work per week. In addition to providing Dixon room and board, the Salvation Army provided him a nominal stipend of $7 per week. Following injury while operating a forklift as part of his work therapy duties, Dixon applied for workers’ compensation benefits. The Arkansas’ Workers’ Compensation Commission denied the claim because, it said, he was not an employee at the time of the injury. Dixon appealed, and the state’s intermediate appellate court reversed, holding that Dixon did have an employment relationship with the Salvation Army, noting that it required Dixon to work in the program and received a benefit from Dixon’s work as part of its commercial activities. The Arkansas Supreme Court granted a petition for review. Reversing, the state’s high court relied on Louisiana precedent on Salvation Army employment relationships. The court held that Dixon did not have an employment relationship because the work he performed was for his own rehabilitative benefit and not for the benefit of the Salvation Army. The court said, “Clearly, Dixon was performing labor or services, but he was performing them as part of the alcohol rehabilitation program in which he had enrolled himself with the laudable goal of freeing himself from his addiction to alcohol.” Full text of the decision REAL PROPERTY Owner-occupancy rule for accessory rentals OK A law requiring owners who rent accessory apartments to live in the primary dwelling is constitutional, the Utah Supreme Court held on Jan. 21. Anderson v. Provo City Corp., No. 2005 UT 5. Provo, Utah, amended its zoning laws so that property owners in some single-family residential zones near Brigham Young University can rent accessory apartments on condition that the owner resides in the primary dwelling. Before the 2000 amendment, owners with accessory apartments were not required to live in the primary residence. A group of homeowners sued Provo seeking to overturn the ordinance as facially invalid or to get compensation for their investment losses through as-applied claims. The district court granted Provo summary judgment on the facial challenges, then dismissed the owners’ as-applied challenges. The Utah Supreme Court upheld the amendment, saying it strikes a balance between providing “more housing alternatives and availability in these neighborhoods and preserving their single-family residential character.” Rather than restricting the owners’ right to rent their primary residence, the law “merely regulates a secondary use that could otherwise not be available at all.” The court held that the owner-occupancy requirement is within Provo’s zoning power, does not violate the owners’ right to travel, and is not an invalid restraint on alienation. Although occupying and nonoccupying owners are treated differently, “the disparity in treatment is reasonably justified” by the municipal council’s stated objective of “balancing the city’s competing interests in accommodating student housing needs and in preserving the character of single-family residential neighborhoods,” thus it does not violate owners’ constitutional right to equal protection. Full text of the decision TORTS Birth defects limitations statute runs from birth The statute of limitations for filing a claim for damages resulting from birth defects begins at the time of the child’s live birth and not from when an ultrasound revealed the child had birth defects, the Louisiana Supreme Court ruled on Jan. 20 in a case of first impression. Bailey v. Khoury, No. 2004-CC-0620. While Ginger Bailey was being treated with Depakote for her bipolar disorder, she became pregnant with her third child. She claimed that none of her physicians or pharmacies warned her of the dangers of birth defects that could result from the use of the drug during pregnancy. An ultrasound revealed that her unborn child had developed birth defects. When the child was born, she suffered from defects that included Cornelia de Lange syndrome, spina bifida and hydrocephalus. Almost one year after the child’s birth, Bailey filed a medical malpractice action. The prescription period for medical malpractice actions in the jurisdiction is one year. Two lower court judges denied the defendants’ exceptions of prescription. A three-judge panel of the court of appeal dismissed the claims. Upon vacation of the decision due to procedural error, a five-judge appeal panel affirmed the lower court’s decision. The Louisiana Supreme Court affirmed, holding that because live birth was an “implied condition” under La. Civ. Code Ann. art. 26 before an unborn child had a right to be considered a “natural person,” a cause of action did not accrue until the child was born. Full text of the decision

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