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ADR If first forum unavailable, another forum will do An automobile insurance policyholder does not escape her contractual obligation to arbitrate a medical claim merely because the specified forum no longer accepts that sort of case, the Idaho Supreme Court held on July 28. Deeds v. Regence Blue Shield of Idaho, No. 31180. Brooke Deeds sued her insurance carrier in a dispute over medical costs arising from an auto accident. The insurer sought to invoke a policy clause demanding “arbitration in accordance with the applicable rules of the American Arbitration Association [AAA].” However, the AAA had decided that it no longer would arbitrate cases unless both parties signed post-dispute agreements to arbitrate. Deeds refused to sign, and a trial judge ruled that the AAA’s policy change invalidated the arbitration agreement. Reversing, the Idaho Supreme Court cited a savings clause in Idaho law and ruled that if the AAA wouldn’t take the case, some other arbitration forum would do. “Arbitration ‘in accordance with the applicable rules of the AAA’ is not dependent on the AAA overseeing the arbitration,” the court said.   Full text of the decision CIVIL PROCEDURE Inmate’s suit survives technical challenge Dismissal of a prisoner’s complaint for failure to exhaust administrative remedies did not qualify as a “strike” under federal Prison Litigation Reform Act (PLRA) curbs on inmate litigation, the 4th U.S. Circuit Court of Appeals held on July 26. Green v. Young, No. 04-7252. Inmate George Green filed a 42 U.S.C. 1983 action against Virginia prison officials, alleging deliberate indifference to his serious medical needs. A federal district court dismissed his suit on the merits, and Green filed a notice of appeal. The officials sought to invoke the PLRA’s “three strikes” provision, 28 U.S.C. 1915(g), which requires the payment of up-front court fees by prisoners who have had three previous suits dismissed as meritless. Green had three previous actions dismissed, including one for failure to exhaust administrative remedies before filing suit. The 4th Circuit took the case to resolve a matter of first impression within its jurisdiction, and said that the law was with the inmate. “The PLRA’s three-strikes provision by its terms applies only if a prisoner has had three prior actions dismissed as ‘frivolous, malicious, or [for] fail[ure] to state a claim upon which relief may be granted,’ ” the court said. “ Because a dismissal for failure to exhaust is not listed in � 1915(g), it would be improper for us to read it into the statute.” CONSTITUTIONAL LAW Charitable solicitations restricted to volunteers It is not unconstitutional to allow charities to use volunteers or employees to solicit people who join a state “do not call” list while forbidding them to hire professional telemarketers, the 7th U.S. Circuit Court of Appeals held on July 28. National Coalition of Prayer Inc. v. Carter, No. 05-3995. The Indiana Telephone Privacy Act allows people to join a registry that places their telephone numbers off limits to solicitors, with exceptions for real estate sales calls plus charities and people selling newspaper subscriptions, as long as the callers are employees or volunteers. A group of charitable organizations that wanted to hire professional telemarketers filed a First Amendment challenge. An Indiana federal district court granted summary judgment to the state. The 7th Circuit affirmed the decision, saying the state had a legitimate interest in limiting disruptive calls, the number of which reportedly declined by an average of 84% after the law took effect. The state met the ministerial test under Rowan v. U.S. Postal Service, 397 U.S. 728 (1970), because it was blocking calls from a prescribed source but not judging their content. Concurring in the result, Circuit Judge Ann Claire Williams argued against reliance on Rowan, which, she asserted, was no longer controlling law. However, she said, the restrictions on charities were narrowly drawn to meet a sufficiently strong government interest in protecting consumers from potentially more intrusive calls from professional telemarketers than nonprofessionals were likely to make. Retrospective aspect to Megan’s Law is tossed Missouri’s “Megan’s Law” violates the state constitution’s ban on retrospective laws to the extent that it requires nonpredatory sex offenders convicted before its effective date to register with local authorities, the Missouri Supreme Court ruled on June 30. Doe v. Phillips, No. SC86573. The law, modeled on federal legislation, requires “sexually violent predators” to notify law enforcement officials of their address and provides for listing that information on a central registry. However, the Missouri legislation went beyond the federal model, also covering parents who kidnapped their children, child abusers and some nonviolent offenders. That language took effect on Jan. 1, 1995. Earlier this year, the Legislature relaxed the law to shorten or eliminate its application to various less serious offenders. A group of nonviolent offenders challenged the law on numerous constitutional grounds but lost in the trial court. Hearing the case on direct appeal, the Missouri Supreme Court mostly affirmed. The court found no violation of any privacy right in the publication in a central registry of court records already in the public domain, no undue procedural or substantive due-process concerns and no equal-protection violations. However, the court said the registration requirement violated the state’s stringent constitutional ban on any law that “creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.” The requirement therefore is invalid “as to, and only as to, those persons who were convicted or pled guilty prior to the law’s January 1, 1995, effective date.” People labeled as sex predators must continue to register, however. CONTRACTS Disinterred casket had performed as warranted A wooden casket that showed cracks and separations years after burial did not breach the implied warranty of merchantability for an ordinary purpose, the Mississippi Supreme Court found on July 27. Moss v. Bateville Casket Co. Inc., No. 2005-CA-00372-SCT. After Nancy Moss Minton died, her children chose a cherry wood casket made by Batesville Casket Co. Inc. because their mother liked cherry wood, despite the funeral home’s warning that it could not seal like a metal casket. Two and a half years after Minton was buried, her children had her body exhumed when the possibility of a medical malpractice claim arose. Upon exhumation, there were visible cracks and separation in the casket, and it began to come apart as it was removed from its protective concrete underground vault. However, the body remained inside and could not be seen by the survivors. The survivors sued the funeral home and casket company for claims including breach of implied warranty of merchantability for an ordinary purpose. The trial court granted the defendants’ motions for summary judgment. Affirming, the Mississippi Supreme Court said the plaintiffs offered no proof that the casket had violated any implied warranty for fitness or marketability, was dangerously defective or evidenced negligence. Even if it were reasonable to expect a casket to protect remains indefinitely, the plaintiffs did not show that the remains had been damaged, the court said. Therefore, summary judgment was justified. CRIMINAL LAW Smell test wasn’t good enough for conviction The state was required to prove the exact chemical makeup of a suspected methamphetamine precursor chemical, not to rely solely on a police officer’s “olfactory observations,” the Tennessee Supreme Court ruled on July 27 in a matter of first impression. State v. Marise, No. W2003-02434-SC-R11-CD. Two police officers approached Gary Lee Marise and a companion because their parked car was partially blocking the roadway. One of the officers smelled what he suspected was anhydrous ammonia, a substance used to produce methamphetamine, coming from the trunk. He obtained a search warrant and found a canister typical of the kind used to store anhydrous ammonia. The officer didn’t open the canister, nor was it weighed or tested before it contents evaporated. At trial, the officer said he knew what anhydrous ammonia smelled like and what kinds of canisters it was stored in because he’d grown up on a farm where it was used as a fertilizer. Marise was convicted of felony possession of anhydrous ammonia with the intent to manufacture methamphetamine. An intermediate state appeals court affirmed. The Tennessee Supreme Court reversed, noting that the relevant statute referred to the substance as containing 82% nitrogen. Had the Legislature not intended proof of the chemical composition of anhydrous ammonia, it would not have specified the exact proportion of nitrogen-or later bothered to rewrite the law to omit the exact proportion. Consequently, the officer’s lay testimony about what he thought he smelled cannot support the conviction, the court said. LABOR AND EMPLOYMENT No notice was owed to sacked security staffers A federal law requiring 60 days’ notice of mass layoffs did not apply to airport security companies nationalized following the Sept. 11, 2001, attacks, the 9th U.S. Circuit Court of Appeals ruled on July 24. Deveraturda v. Globe Aviation Security Servs., No. 04-16633. Virgil Deveraturda and other security screeners who lost their jobs with Globe Aviation Security Services after the federal government took over airport security operations filed a class action against Globe, citing the notice provision in the Worker Adjustment and Retraining Notification Act, 29 U.S.C. 2101. A federal district court judge sided with the company. On appeal, the 9th Circuit weighed competing precedents but ultimately affirmed on the ground that the advance notice applies when “an employer” orders a mass layoff. “We see no reason to go further than the face of the statute but even if we did, there is no dispute here that the government involvement was absolute,” the court said. “Globe had nothing to do with the conditions that brought the layoffs about. Nor could it do anything to remedy them.” PROPERTY LAW Cemetery not subject to prescriptive easement A burial ground was of a public nature and therefore not subject to a prescriptive easement, the Nebraska Supreme Court ruled on July 28. Sjuts v. Granville Cemetery Assoc., No. S-05-124. The nonprofit Granville Cemetery Association owned one acre in Platte County, Neb., that had been used as a cemetery since 1883. In 1974, Calvin J. Sjuts and Barbara F. Sjuts became owners of 160 acres that surrounded the cemetery. They operated a center-pivot irrigation system that when operating passed over part of the cemetery, watering some graves but not damaging any monuments, and engraving the ground with tire tracks. The Sjuts filed a quiet title action, seeking a prescriptive easement over the cemetery’s land. The state trial court rejected the motion on summary judgment. Affirming, the state Supreme Court cited Nebraska statutes and precedent forbidding the adverse assignment of public property. Case law holds that a “cemetery is as public a place as a courthouse, or a market,” the court noted. Moreover, state code treats cemeteries as quasi-public, exempt from taxes and authorized to take property through eminent domain. Since the Granville cemetery had been in continual use for more than a century, summary judgment was appropriate, the court concluded. STANDING Complaint preceded the alleged injury A conservative legal foundation’s effort to revive a challenge to the legality of the Grand Staircase-Escalante National Monument fails because the lawsuit was filed before the alleged injury occurred, the 10th U.S. Circuit Court of Appeals held on July 24. Utah Association of Counties v. Bush, No. 04-4132. Utah’s counties and the Mountain States Legal Foundation (MSLF) sued after President Clinton in 1996 invoked the Antiquities Act of 1906 to set aside some 1.7 million acres of federal land in Utah to preserve geological, biological, paleontological and historical resources. Environmental groups and some businesses intervened in what became a consolidated suit. A federal judge in Utah ruled in 2004 that the foundation lacked standing to sue and rejected the arguments of the counties, the sole remaining defendant, on their merits. The foundation filed an appeal but the counties did not. The 10th Circuit said the foundation’s role in the case rested on member Don Wood’s claim that he lost his rights to mine alabaster within the monument in 1998. However, the foundation filed its complaint in 1997, raising a “glaring” and fatal problem, the court said. “Although the basis for dismissal is arguably a peculiar one, especially if Mr. Wood’s loss was an otherwise sufficient injury-in-fact (an issue we do not address), the peculiarity is due solely to MSLF’s post hoc reliance on an injury that had not even occurred when MSLF filed its complaint,” the court said. “Mr. Wood’s loss simply could not have been part of he ‘legal harm’ alleged in MSLF’s complaint because it had not yet happened.” TORTS Fiery ‘improvement’ opens limitations period An incompletely installed utility guy wire anchor constituted an “improvement to real property” that opened the two-year statute of limitations against lawsuits alleging “defective and unsafe conditions,” the Minnesota Supreme Court ruled on July 27. Lietz v. Northern States Power Co., No. A04-901. Installation of the anchor bolt in question in 1998 was interrupted when utility workers realized they had punctured a gas line. The subsequent explosion killed four people and injured more, and damaged buildings including a Taco John’s restaurant. A trial judge ruled that the restaurant’s claim for damages, first filed in 2001, came outside the two-year limitations period. A split intermediate appellate court affirmed. Also affirming, the Minnesota Supreme Court said that the governing code section, Minn. Stat. � 541.051, was ambiguous, but concluded that the Legislature intended the law to be read broadly. That and the difficulty of distinguishing between partially and completely installed items pointed in favor of interpreting “improvement to real property” to encompass incompletely installed objects. Justice Alan C. Page filed a dissenting opinion, in which he argued that the majority misread the law to reach a harsh result. Had the anchor not been drilled into the pipeline, the harm inflicted here would not have occurred-no matter what the condition of the anchor, defective and unsafe or not. Mother’s conviction was irrelevant to kids’ claim A mother’s character was irrelevant in weighing the value of her emotional support for her children in a wrongful death action, the New Jersey Supreme Court ruled on July 25. Johnson v. Dobrosky, No. A-41-05. Ann Johnson lapsed into a coma and died following surgery at the West Jersey Hospital after she complained of stomach pains. Her husband sued her doctors on behalf of himself and the couple’s children, seeking damages for lost advice, guidance and counsel. The trial judge allowed her doctors to present evidence of her conviction three years earlier for welfare fraud. The jury found for the doctors and an intermediate state appellate court affirmed. The New Jersey Supreme Court, 6-1, reversed and remanded. The majority cited code language and precedents that valued the kind of support a parent provides according to the cost of replacing it with professional counselors or caregivers. Evidence that a parent was absent or elderly might be relevant to that calculus. “What is not admissible,” the majority said, “is general character evidence offered to prove, for example, that the decedent was lazy, had loose morals, or was otherwise a person of bad character and hence would give bad advice.” The dissent argued that the majority would leave the jury unable to consider how the woman “could have discharged the duties of a wonderful parent during her 30-day stay in the county jail.” Latecomer to class was not time-barred The filing of a class action tolls the statute of limitations period for a putative class member whose claims arise out of the same factual or legal context, a divided Michigan Supreme Court ruled on July 27 in a matter of first impression. Cowles v. Bank West, No. 127564. Kristine Cowles was the named plaintiff in a state class action against a mortgage lender over allegedly improper preparation fees. One of Cowles’ claims, based on the federal Truth in Lending Act (TILA), was dismissed because she filed it more than a year after she closed on her loan, following the expiration of the TILA’s statute of limitations. Karen Paxson, a potential class member who received notice of the suit but did not opt out, moved to intervene as the class representative for the TILA claim because she had closed on her loan less than one year from when Cowles filed her claim. The trial court threw out Paxson’s claim as time-barred, and revoked class certification for that claim. The intermediate state appellate court reversed on that point, finding that Paxson’s claim related back to Cowles’ filing. The Michigan Supreme Court affirmed. Under Michigan Court Rules 3.501(F), a class action complaint stops the clock on the period of limitations for a class member’s claim arising out of the same factual and legal grounds, as long as the defendant had notice both of the class member’s claim and of the number and generic identities of potential plaintiffs. To rule otherwise, a court majority argued, would encourage the sort of protective suits that class actions were designed to avoid. The majority added that “Paxson did exactly what was encouraged of her under our court rules-she waited until the dust arguably settled before seeking to intervene. Accordingly, it cannot be fairly said that Paxson slept on her rights, because her claims were ostensibly being pursued by Cowles.”

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