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Cases
Source:
Westlawinternational.com
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Insurance: Insurer could pursue equitable subrogation action
against negligent houseguest.
A
homeowners' insurer had a right of subrogation against a houseguest who
accidentally burned down the insureds' vacation home that was equitable,
and not statutory, in nature. The statute governing the subrogation
provision of a standard form of fire insurance failed to provide the
insurer with a direct, and inviolate, right of subrogation and merely
provided that the insurer could require the insured to assign any rights to
the insurer. The insurer, which paid $132,505 in damages to the insureds,
could pursue its equitable subrogation action against the negligent
houseguest. The insureds could have pursued their own negligence action
against the houseguest, who benefited by the insurer's payment of a debt
truly owed by him. These were matters of first impression.
Wasko
v. Manella
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Judicial Administration: Administrative misconduct of justice
of the peace warranted removal from office.
Removal
from office was warranted for a justice of the peace who failed to timely
and properly receipt, deposit, and account for monies received by the court
in more than a thousand instances occurring over a period of more than five
years, and who failed to timely execute the business of the court involving
approximately 22,000 instances of unprocessed citations. Aggravating the
judge's misconduct was the fact that he persisted in his misconduct in the
face of numerous administrative directives to change his conduct.
In
re Rose
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Labor and Employment: City was not entitled to cost-of-living
adjustments paid in connection with Heart and Hypertension Act claim.
The
Connecticut Second Injury Fund was not required to reimburse a city and its
workers' compensation insurer for cost-of-living adjustments paid to a
claimant in connection with her claim arising under the Heart and
Hypertension Act. The benefits under the Act were intended as a
"special bonus" to paid police officers and firefighters and were
not workers' compensation benefits for purposes of the provision of the
Workers' Compensation Act governing reimbursement by the Second Injury
Fund. This was a matter of first impression.
Bergeson
v. City of New London
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Legal Services: Statute requiring referendum on bar
unification violated separation of powers.
A New
Hampshire statute requiring the State Bar Association to conduct and be
bound by a referendum of its membership on the issue of unification
violated constitutional separation of powers. The referendum might result
in the effective repeal of the requirement, imposed by the New Hampshire
Supreme Court, that all lawyers practicing in the State be members of a
state bar association. The legislature usurped the inherent authority of
the judicial branch to regulate the practice of law, which included the
authority to determine whether unification of the bar was advantageous.
In
re Petition of New Hampshire Bar Ass'n
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Litigation: Developer could not recover attorney fees in
construction defects case after case was settled.
A
residential real estate developer had no right to recover attorney fees as
part of its costs incurred in an underlying action against it by homeowners
for construction defects, after the developer tendered its defense to
subcontractors. The developer was not a prevailing party in the litigation,
inasmuch as the developer and the subcontractors had paid the homeowners in
exchange for a mutual releases of liability.
Bramalea
California, Inc. v. Reliable Interiors, Inc.
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Civil Rights: Absence of fixed deadline for grant of
demonstration permit did not invalidate ordinance.
The
absence of any fixed deadlines for grant or denial of permit applications
for conduct of demonstration on public property did not render the
content-neutral ordinance violative of the First Amendment. Additionally,
the eight month delay in processing an animal rights advocacy
organization's application for permit to conduct a demonstration at the
2002 Winter Olympics did not violate the organization's First Amendment
rights where the city acted on permit roughly two and a half months before
the Olympics began.
Utah
Animal Rights Coalition v. Salt Lake City Corp
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Family Law: Grandparents rebutted presumption father acted in
best interests of children.
Grandparents
in a custody dispute with the father over two children rebutted the due
process presumption that a parent acts in the best interests of the child.
That evidence was the grandparents' role as primary caretakers to the
children after their mother's death, the father's denial of contact between
the children and grandparents by moving the children to Montana in
violation of a court order, and the present risk to the children that
granting custody to the father would be detrimental to them.
In
re Marriage of O'Donnell Lamont
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Family Law: Minor biological father responsible for child
support, even though child was a result of mother's criminal act.
Fact that
a child resulted from the criminal sexual act of mother in having sexual
intercourse with biological father when he was 14 years old did not absolve
biological father from the responsibility to pay child support, according
to a Michigan Court of Appeals. The Court emphasized that child support was
imposed to satisfy the needs of the child, rather than to benefit a
custodial parent, and stated that the issue was not whether the father was,
or could have been, a consensual participant in the sexual activity.
L.M.E.
v. A.R.S.
§
Social Security: Children posthumously conceived by in vitro
fertilization were eligible for children's benefits.
Children
posthumously conceived by in vitro fertilization were eligible for child's
insurance benefits under the Social Security Act. Conception was achieved
using the sperm of the insured, the mother's late husband. The children who
resulted were "children" within the Act's broad definition. The
children's parentage was undisputed. Further, the children were legitimate
under the applicable state law. Thus, the Act's dependency criterion was
met.
Gillett-Netting
v. Barnhart
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Legal Services: Attorney could not enforce oral charging lien
against client's recovery.
An
attorney filed an action against several parties to enforce a charging lien
he obtained from a former client. The trial court sustained defendants'
demurrers, and the Court of Appeal reversed on the ground the lien did not
have to be in writing. The Supreme Court reversed the Court of Appeal. The
Supreme Court held that by acquiring an oral charging lien against the
client's future judgment or recovery, the attorney acquired an interest
that was adverse to the client. Accordingly, the attorney could not enforce
the lien where he did not comply with Rule of Professional Conduct
requiring the client's informed written consent to the attorney's
acquisition of an interest adverse to the client.
Fletcher
v. Davis
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Torts: Statement wrongfully identifying someone as homosexual
is not defamatory per se.
A
statement wrongfully identifying someone as homosexual is not defamatory
per se under Massachusetts law. Such a statement no longer imputes criminal
conduct. If court was to agree that calling someone a homosexual is
defamatory per se, it would, in effect, validate that anti-homosexual
sentiment and legitimize relegating homosexuals to second-class status.
Albright
v. Morton
News
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Deadlock On EU Constitution Feared
EU
leaders are struggling to finalise a constitution and choose a new European
Commission chief in Brussels. The exercise would require a "handful of
issues" to be settled before the EU's first constitution could be
agreed although there is expected a risk of stalemate, with disagreements
over the formula for majority voting. No one, as of now, has enough support
yet for the job of commission head. The search for a successor to current
President Romano Prodi is becoming increasingly polarised, with Britain on
one side and the French and Germans on the other.
§
Mayor To Spend 30 Years In Jail For Genocide
A former
Rwandan mayor, Sylvestre Gacumbitsi, has been sentenced to 30 years in
prison for organising the slaughter of 20,000 people during the 1994
genocide. Gacumbitsi led the massacre of thousands of people sheltering in
Nyarubuye Church, which was one of the worst events in the genocide. He
distributed weapons and urged ethnic Hutus to kill and rape their Tutsi
neighbours which led to the killing of some 800,000 Tutsis and moderate
Hutus in 100 days in 1994.
§
Algerian Government Defends Editor's Jailing
The
Algerian government has specifically denied trying to silence the
independent media in the country with the jailing of a newspaper editor
fiercely critical of the authorities. The justice minister insisted that
Mohamed Benchicou, editor of Le Matin newspaper, had been jailed for
financial wrongdoing and that the same has got nothing to do with freedom
of expression or politics. Benchicou was jailed on accusation of violating
Algeria's laws on money transfers abroad but regarded by some as a warning
to the private press.
§
Tobacco Company Ordered To Recall Cigarettes
Famous
tobacco company Brown & Williamson has been strictly ordered to recall
thousands of cigarette packets after an advertising campaign was found to
target children. This has come in the wake of Justice Charles Ramos ruling
that the company, owned by British American Tobacco, was trying to attract
young customers with its hip-hop based ads. The company has agreed to abide
by the judges ruling.
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Ukraine MPs Call For Impeachment Over Murder Of Opposition
Journalist
A
parliamentary committee in Ukraine has recommended that the president
should be impeached over the murder of an opposition journalist. President
Leonid Kuchma, who has repeatedly denied any part in the murder, has
immunity from prosecution. Journalist Georhiy Gongadze, who wrote for a
news website, was killed in 2000 but no-one has yet been charged. The
journalist, who crusaded against corruption in Ukraine, was abducted from
Kiev and his decapitated body was later found in woods outside the capital.
§
Sri Lanka To Impose 100% Land Tax
Sri Lanka
is planning to re-impose a 100% tax on foreigners buying land in view of
the locals being priced out of the domestic market. The step is being taken
in the wake of resentment and house prices having risen as expatriates from
India, Hong Kong, Singapore and Europe buy holiday homes. Also, the sales
do little to boost Sri Lanka's economy.
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Living Wills Will Get Legal Backing
The
government in Briton is planning to introduce a law to give people a clear
legal right to draw up so-called "living wills" as some 2m Britons
are unable to make decisions for themselves. The wills would enable people
to spell out what medical care they want if they become seriously ill and
are unable to make their own decisions. The proposals are outlined in a new
Mental Capacity Bill, which was published recently. It is pertinent to note
that the courts already recognise living wills but the Bill aims to
enshrine the right to draw one up in law.
§
Saddam Could Face Death Penalty
Saddam
Hussein could face the death penalty if found guilty by a war crimes
tribunal. Salem Chalabi, the head of the Tribunal said that Iraqi law
permitted execution for murderers, but a current coalition-imposed
moratorium on capital punishment would have to be lifted. Hundreds of
Iraqis have been flocking to submit evidence against their former rulers.
§
China Faces Child Trafficking Menace
The
leader of a gang involved in buying and selling 120 baby girls has been
sentenced to death by a court in China. Two other members of the group were
given life imprisonment for their part in the trafficking of babies in the
impoverished central province of Henan. However, there is no word on the
fate of the girls, sold between 1998 and 2003. The Chinese authorities
believe thousands of women and children are trafficked every year. Many of
them are forced into marriage or sexual slavery, or are used as servants.
Every effort is being made to curb the problem.
§
Corruption Costing Very Expensive To Indonesia
Indonesia has lost $2.35bn in the past two
years due to corruption, as per the attorney general's office. The figure
is derived from known cases investigated by the authorities - 108 cases
have been pursued in the first four months of this year alone. Cases range
from misuse of state funds by officials to simple bribery. Corruption is
endemic in Indonesia, but with a presidential election looming, candidates
are all promising to tackle the problem.
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