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CONSUMER PROTECTION Letter advising phoning for balance due is lawful A debt-collection letter that gives a “total due” but adds that, because of daily interest accrual, the debtor should phone for the actual balance, is not confusing and thus not in violation of the federal Fair Debt Collection Practices Act (FDCPA), the 7th U.S. Circuit Court of Appeals held on Oct. 10. Williams v. OSI Educational Services Inc., No. 07-1143. OSI, a debt-collection agency, was hired by Great Lakes Higher Education Guaranty Corp. to collect its debts. OSI sent Sandra Williams a letter seeking to collect a sum of $807.89, labeled as “total due,” which was the outstanding balance owed to Great Lakes. The letter also stated that the “balance may not reflect the exact amount of interest which is accruing daily per your original agreement with your creditor” and suggested she contact OSI “to find out your exact payout balance.” Williams filed suit on behalf of herself and a putative class under the FDCPA. She claimed the letter did not clearly state the amount of the debt as required by the FDCPA. A Wisconsin federal court granted summary judgment to OSI. Affirming, the 7th Circuit applied an objective test, “from the perspective of an ‘unsophisticated consumer or debtor,’ ” looking at whether the language would “ confuse a substantial number of recipients.” The court had previously provided suggested language that complies with its requirements of clarity, but the “fact that the letter in this case does not adopt the language of the safe harbor is of no consequence,” as the “safe harbor” wording is just suggested language, not required language. Here, the letter set out the amount “with sufficient clarity and accuracy to comply with the requirements of the statute.”   Full text of the decision CRIMINAL PRACTICE Judge wrong to dismiss inept counsel habeas suit A Texas federal judge wrongly dismissed a habeas corpus petition on procedural grounds, despite describing the inmate’s legal representation as “appallingly inept” and “egregiously deficient,” the 5th U.S. Circuit Court of Appeals held on Oct. 11. Ruiz v. Quarterman, No. 07-70025. A Texas state jury convicted Rolando Ruiz of murder and sentenced him to death. The trial judge refused to appoint new counsel for the direct appeal, after receiving a promise that any Sixth Amendment claim of ineffective counsel would be raised by newly appointed state habeas counsel. It was not. Without meeting his client or conducting any investigation, Ruiz’s state habeas counsel filed a boilerplate application in state court that did not challenge the trial counsel’s failure to investigate and present mitigating evidence. The Texas Court of Criminal Appeals, the state’s highest criminal court, denied the habeas petition. Ruiz filed a federal habeas application with a new lawyer, raising claims of ineffective assistance by both trial and state habeas counsel. Though describing Ruiz’s state lawyers as incompetent, the federal judge denied the petition as procedurally defaulted. The 5th Circuit affirmed. The case continued, mired in a complex procedural issues, while no federal court reviewed the merits of Ruiz’s ineffective assistance of counsel claims. Eventually, the 5th Circuit stayed the execution, reversed the dismissal of the federal habeas petition and remanded with instruction to decide the claim of ineffective trial counsel on its merits. The court found one error of law and an abuse of discretion by the federal court. “Ruiz brings serious charges of incompetent and ineffective trial counsel, but no federal court has considered the merits of his constitutional claims, and he obtained a stay only within minutes of his execution, granted by this court in order to gain sufficient time to consider properly the appeal,” the court said. No due process breach in unintended evidence loss A defendant’s due process rights are not violated if the government loses or destroys evidence � unless bad faith informs that loss or destruction, the Ohio Supreme Court held on Oct. 11. State v. Geeslin, No. 2006-0882. Ohio State Highway Trooper Tim Wenger engaged his video-recording system after seeing James Geeslin’s vehicle cross the roadway line several times. Pulling Geeslin over and approaching the vehicle, the trooper smelled alcohol and saw Geeslin’s bloodshot, glassy eyes. The trooper performed field sobriety tests, then arrested Geeslin. At the end of his shift, Wenger reviewed the tape and rewound it. During his next shift, he used the same tape to record other stops. The portion of the videotape containing Geeslin’s driving � the alleged probable cause for the stop � was recorded over. Geeslin was charged with driving while intoxicated. He sought to dismiss by attacking the validity of the stop, denying he crossed the roadway line. He claimed due process violations because the missing portion of the tape contained possibly exculpatory evidence. A trial judge agreed and dismissed the charges. An intermediate appellate court reversed, and reinstated the charges. The Ohio Supreme Court affirmed. Citing the U.S. Supreme Court’s Brady v. Maryland, 373 U.S. 83 (1963) � which holds that suppression of materially exculpatory evidence violates a defendant’s due process rights, regardless of whether the state acted in good or bad faith � the court concluded that the missing evidence in this case wasn’t materially exculpatory but only potentially useful. As for the due process violation issue, the court, citing the U.S. Supreme Court’s Arizona v. Youngblood, 488 U.S. 51 (1988) � which holds that, if evidence is only potentially useful, a defendant must show government bad faith to demonstrate a due process violation � said that the trooper had testified that the recording over of the tape was accidental. Thus the defendant failed to demonstrate bad faith in the loss of the evidence. EMPLOYMENT False injury report firing is not retaliatory firing Terminating an employee for falsely reporting an injury doesn’t constitute retaliation for exercising protected workers’ compensation rights, the 8th U.S. Circuit Court of Appeals found on Oct. 10. Napreljac v. John Q. Hammons Hotels Inc., No. 06-4038. In 2003, Zuhdija Napreljac, a hotel maintenance engineer for John Q. Hammons Hotels Inc., told a supervisor that he had slipped and fallen on the stairs near a loading dock. A human resources employee prepared an accident report, which appeared to be signed by Napreljac, stating that he had injured himself while walking down the stairs picking up garbage. A doctor diagnosed Napreljac as suffering from mild lumbar strain. The hotel general manager reviewed videotape from a security camera and did not see Napreljac on the stairs picking up garbage at any time during the morning of the alleged fall. When Napreljac did appear on the stairs in the video, he showed no signs of injury. Napreljac was terminated for submitting a false report. He sued for wrongful termination, including a claim for retaliatory discharge. An Iowa federal court granted the defendant’s motion for summary judgment. Affirming, the 8th Circuit concluded that Napreljac had failed to satisfy the causation element of his retaliatory discharge claim. Although an employee may not be discharged for “asserting statutory workers’ compensation rights,” the evidence here casts serious doubt on whether Napreljac reported a legitimate injury. No evidence had been presented to show that the reason given for termination was pretextual. GOVERNMENT No FOIA exemption for post office information A federal district court erred in granting summary judgment to the U.S. Postal Service in a civil action challenging the Postal Service’s denial of a Freedom of Information Act (FOIA) request because information such as post office names, addresses, telephone numbers, business hours and collection times isn’t exempt as information of a commercial nature, the 9th U.S. Circuit Court of Appeals held on Oct. 15. Carlson v. U.S. Postal Service, No. 05-16159. Douglas Carlson filed a FOIA request with the U.S. Postal Service, seeking electronic records from the database for the “Find MyPostOffice” search option on the postal service’s Web site. Carlson sought records of the addresses, telephone numbers and collection times of every post office in the database. The postal service denied the request, saying that release of the information would reduce traffic to its Web site, a valuable commercial enterprise. The requested information falls under 39 U.S.C. 410(c)(2)’s exception for “information of a commercial nature.” A California federal court granted summary judgment to the postal service. Reversing and remanding, the 9th Circuit held that the Section 410(c)(2) exemption did not apply to post office information because it was not commercial in nature, but the court did not reach the issue of whether the request for the entire database might be. The court said, “Mail service may be essential to commerce and trade, but information concerning the names, addresses, telephone numbers, and regular business hours of post offices, is not commercial information.” N.Y. comptroller cannot audit liquidation bureau The New York state comptroller does not have constitutional or statutory authority to audit the state’s Insurance Department Liquidation Bureau, the New York Court of Appeals ruled on Oct. 11. In the Matter of Dinallo, No. 111. The New York state comptroller sought to audit the financial management and operating practices of the state Insurance Department Liquidation Bureau, which is charged by statute with overseeing the liquidation of distressed insurers. The bureau resisted, saying it was not a state agency subject to the comptroller’s oversight. The comptroller issued nine subpoenas for testimony from bureau officials and one subpoena for the production of documents. The comptroller cited as his authority the state constitution and the laws governing state finance and abandoned property. A trial court granted the bureau’s motion to quash the subpoenas, but an intermediate appellate court reversed, saying that the superintendent of insurance is a state agency when he acts as a liquidator. The court ruled that the comptroller had authority to audit open and closed liquidation proceedings, not just the bureau’s handling of abandoned property. The New York Court of Appeals, the state’s highest court, reversed. “Because the liquidation of a distressed insurer has no impact on the State fisc, it does not implicate the Comptroller’s constitutional and statutory authority to superintend the fiscal affairs of the State and therefore the Comptroller lacks the authority to audit the Bureau.” Contrary to the appellate court’s analysis, the high court found that, when the superintendent acts as a liquidator, he is actually operating as a statutory receiver who is standing in the shoes of a private entity. INSURANCE LAW No payout if insured is to blame for his own death It is not arbitrary or capricious for an Employee Retirement Income Security Act (ERISA) plan administrator to deny personal accident insurance benefits to the beneficiary of an insured who died as a result of his own drunken driving, the 6th U.S. Circuit Court of Appeals ruled on Oct. 10. Lennon v. Metropolitan Life Insurance Co., No. 06-2234. David Lennon, an accountant with General Motors Acceptance Corp., died after crashing his car while driving drunk with a 0.321 blood alcohol level. MetLife, GM’s policy administrator, refused to pay benefits to Lennon’s mother, citing an exclusion to Lennon’s personal accident insurance policy for cases in which “suicide, attempted suicide or self-inflicted injury” contributed in whole or in part to the loss. MetLife said Lennon’s drinking impaired his judgment and physical and mental reactions, and the high concentration of alcohol in his blood made the chance of serious injury or death reasonably foreseeable, not accidental. MetLife also stated that voluntarily consuming excessive amounts of alcohol constituted intentional self-inflicted injuries. Lennon’s mother sued in a Michigan federal court, which ruled that being arrested for drunken driving was more likely than dying, and arriving home safely was more likely than being arrested. The 6th Circuit reversed, calling Lennon’s conduct grossly negligent and illegal: He knew that driving while intoxicated created a significant risk of bodily harm or death to himself or others, and it would have been a minimal burden for him to get a taxi or stay in a hotel. If tort law can create liability in these circumstances, then it isn’t arbitrary or capricious for an ERISA plan administrator to treat intentional conduct the same way. PRODUCTS LIABILITY Class action over sutures is a malpractice claim A products liability class action involving contaminated surgical sutures is really a medical malpractice claim subject to the Medical Professional Liability Act (MPLA), the West Virginia Supreme Court of Appeals ruled on Oct. 12. Blankenship v. Ethicon Inc., No. 33224. Donna Blankenship filed a class action against Ethicon Inc., the maker of Vicryl surgical sutures, and several hospitals from around the state. She claimed she and others suffered infections from improperly sterilized sutures. The suit asserted products liability, as well as fraud, intentional infliction of emotional distress and violations of West Virginia’s Consumer Credit and Protection Act. The hospitals argued that the MPLA provided the exclusive remedy for Blankenship’s claims. The trial court agreed and dismissed the case. The West Virginia Supreme Court of Appeals agreed with the holding on the merits, but found dismissal an “unduly harsh” sanction. If alleged tortious acts or omissions are committed by a health care provider within the context of rendering “health care,” the MPLA applies regardless of how the claims have been characterized in the pleadings. TORTS Powerlifter assumes risk by taking part in contest The alleged negligence of spotters at a powerlifting competition was irrelevant in a competitor’s personal injury action because, by competing in the event, the competitor assumed the risk of injury, the Maryland Court of Appeals held on Oct. 16. American Powerlifting Ass’n v. Cotillo, No. 04-00050. Powerlifter Christopher Cotillo competed at the 2003 Southern Maryland Open Bench Press and Deadlift Meet, an event sanctioned by the American Powerlifting Association (APA). As Cotillo attempted to lift 530 pounds, his weights slipped, striking him in the face and shattering his jaw. Cotillo sued APA and others, alleging that the two teenage spotters supplied by the event were negligent in failing to grab the weight bar prior to impact and that the event organizers were negligent in their training of the spotters. A trial court granted summary judgment to APA, holding that Cotillo had assumed the risk of injury. An intermediate appellate court affirmed in part and reversed in part, holding that there were triable issues regarding whether the spotters were trained properly. Reversing, the Maryland Court of Appeals, the state’s highest court, held that, due to Cotillo’s assumption of the risk, the spotters’ alleged negligence and training were irrelevant. The court said, “By voluntarily participating in a powerlifting competition, Mr. Cotillo assumed the risks that are the usual and foreseeable consequences of participation in weightlifting . . . .Furthermore, any factual dispute as to whether the spotters were negligent is of no consequence because mere allegations of negligence, rather than allegations of reckless or intentional conduct, are insufficient to find that the spotters enhanced the risk of Mr. Cotillo’s injuries.” Public duty doctrine not applicable to all officials Georgia’s public duty doctrine, which shields public officials from tort liability in certain circumstances, applies only to law enforcement officers, the Georgia Supreme Court held on Oct. 9. Gregory v. Clive, No. S06G2138. Jeff and Cindy Clive had a house and barn constructed on their property. Stuart Gregory, a building inspector for Spalding County, Ga., who had issued building permits for both structures, issued a certificate of occupancy for the house, but not the barn. After a storm caused the barn to collapse, injuring the Clives, they sued Gregory, arguing that, had he inspected the barn as required, he would have noticed the structural defects. A trial court granted summary judgment to Gregory, holding he was immune from liability under Georgia’s public duty doctrine, which shields public officials from liability in certain circumstances. An intermediate appellate court reversed. Affirming, the Georgia Supreme Court held that the doctrine applies only to law enforcement officers. Rejecting Gregory’s argument that the doctrine should extend to police powers as well as police protection, the court said, “The police power of local governments is often highly deliberative, involves legislation addressing ‘the public health, safety, or general welfare’ of the community . . . .The public duty doctrine, however, addresses only the provision of police protection services traditionally done by police law enforcement personnel.”

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