Whether your practice overlaps with tribal law, this general orientation will help Wisconsin lawyers understand the history and current status of American Indians and their tribes’ self-governance and law in the United States.
In almost every constitutional law class, students spend a substantial amount of time learning about the balance of power between states and the federal government. But often the entire law school curriculum leaves out the balancing of power for unique sovereigns that predate any form of western civilization on this continent: American Indian tribes.1 For countless generations, these tribes have occupied, governed, and lived on the land that is now known as the United States.
The tribes are independent entities with inherent powers of self-government.
The independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes.
The power to deal with and regulate the tribes is wholly federal; the states are excluded unless Congress delegates power to them.
The federal government has a responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens.
The State Bar’s Indian Law Section provides a forum for both government and private attorneys with interests in the field of Indian law. The section fosters the relationship between lawyers and others involved with legal issues of concern to American Indians and tribal governments. Consider becoming a member. Section dues are $30, but membership is free to all first-year attorneys. Contact customer service at (800) 728-7788.
The Indian Law Section will present “Indian law – An Introduction for Wisconsin Practitioners”on Thursday, June 25, during the State Bar Annual Meeting & Conference. Attendees will learn the areas of Indian law that are most likely to affect their practice and the resources available to deal with Indian-law related issues. Presenters will cover the principles of Indian law and the basics of tribal sovereignty. For more information and to register.
For resources to tribal law, see “Engaging the Third Sovereign: The Nature, Reach, and Sources of Tribal Law,” by U.W. Law Librarian Bonnie Shucha, at page 47 in this issue.
With these doctrines in mind, we provide a snapshot of the highlights to help readers gain a better understanding of this unique area of law.
Federal Indian law, like many other practice areas, reflects changes in popular attitudes and governmental policy over time.
Rebecca M. Webster, U.W. 2003, is an enrolled member of the Oneida Tribe of Indians of Wisconsin and is a senior staff attorney with the tribe’s Oneida Law Office, Oneida. She also is an adjunct instructor at U.W.-Oshkosh and at Northeast Wisconsin Technical College.
Andrew Adams III, U.W. 2006, is a citizen of the Muscogee (Creek) Nation and member of the Tallahassee Wvkokaye Ceremonial Grounds. He is Chief Justice of the Muscogee Nation Supreme Court, Chief Justice of the Santee Sioux Nation of Nebraska Supreme Court, and a founding partner of Hogen Adams PLLC, St. Paul.
David Armstrong, Northern Illinois 2007, is director of the Indian Law Office of Wisconsin Judicare Inc., Wausau, where he represents tribe members and tribes throughout Wisconsin on a variety of civil legal issues as well as code drafting and tribal systems development.
The Wisconsin Tribal Judges Association website contains up-to-date information on tribal court bar admission and subject matter jurisdiction for each tribe in Wisconsin.
In addition, listed below are the websites and tribal court contact information for each of Wisconsin’s 11 Indian tribes. The manner of gaining admission to the tribe’s tribal court is also noted.
Bad River Tribal Court – Tribal bar exam.
Forest County Potawatomi Tribal Court – Tribal bar exam.
Ho-Chunk Nation Judiciary – Admission on motion with payment of fee.
Lac Courte Oreilles Tribal Court – Admission on motion with payment of fee.
Lac du Flambeau Tribal Court – Admission on motion with payment of fee.
Menominee Tribal Court – Admission on motion with payment of fee.
Oneida Tribal Judicial System – Admission on motion with payment of a fee.
Red Cliff Band Tribal Court – Written and oral bar exam.
St. Croix Tribal Court – Admission on motion with payment of a fee.
Sokaogon Chippewa Tribal Court – Admission on motion with payment of fee.
Stockbridge-Munsee Tribal Court – Tribal bar exam.
N8476 Moh He Con Nuck Rd.
As previously noted, P.L. 83-280 was a grant of authority from the federal government to several named state governments. It did not remove or supplant tribal jurisdiction.55 The jurisdiction of Indian tribes stems from their inherent sovereignty as periodically interpreted by the U.S. Supreme Court. Unquestionably a tribe can exercise jurisdiction over all matters arising between members on tribal lands.56 Beyond that, for civil matters the seminal case law is Montana, which created a two-part test for determining whether a tribe may properly exercise jurisdiction.
To encourage judicial efficiency, the Wisconsin Supreme Court has created two mechanisms to move an active case from a circuit court to a tribal court. The first stems from Teague v. Bad River Band of Indians and requires the circuit court to hold a hearing to determine whether the circuit court or the tribal court is the proper forum in situations in which the same case has been filed in both forums.
Broadly speaking, tribal courts may exercise jurisdiction over all cases involving tribe members, including family law cases involving members who do not live on the reservation, and all cases involving the tribe as a party.64 Each tribe interprets the extent of its authority differently, and a tribe might not have statutory or constitutional authority to hear all cases.
It is not uncommon for contracts with tribes to contain a forum-selection clause, mandating use of the tribal court to resolve all disputes regarding or arising from the contract.65 Therefore, any lawyer representing businesses that want to do business with tribes should familiarize themselves with tribal court practice and consider admission to one or more tribal bars.
Although tribal court practice may seem rarified, the subject matter is familiar to most lawyers. Every tribal court in Wisconsin hears family law matters involving their members, and the number of cases is increasing as tribes take over child support enforcement from the county child support agencies.67 Tribes may also self-insure for worker’s compensation and unemployment, requiring all tribal employees to make use of tribal forums to litigate claims that might arise.68 Tribal courts may also hear probate, real property, and juvenile matters involving both members and nonmembers.
The Wisconsin Lawyer thanks photographer Scott Denny for sharing his stunning wildlife images with us. Scott is an enrolled member of the Oneida Tribe of Indians of Wisconsin. He is a self-taught photographer and has been taking photos for nearly 30 years. Starting off using a film camera, Scott transitioned to digital photography in 2006. With the Upper Midwest as his main photographic stomping ground, Scott also has photographed wildlife in South Dakota, Montana, Wyoming, Idaho, West Virginia, Pennsylvania, Florida, and Kenya, Africa.
You can contact Scott at fotosforphun@new.rr.com.
This is one of five gray wolves that reside at the Bay Beach Wildlife Sanctuary in Green Bay. Although appearing to be full grown, this wolf was still a pup when this image was shot. In general, wolves are far more active in the colder months (this photo was shot in November). It is not uncommon to wait several hours for moments of interesting behavior.
The American icon, the Bald Eagle. Although Bald Eagle populations are now respectably high, the majority of people I encounter never seem to tire of seeing an eagle. This image was taken on a very cold January morning. As temperatures drop near or below zero, eagles become very active and that is when a photographer has to bold the cold to get those “keeper” images. If you look closely, there is frost around the eagle’s eye. After hours of standing in the cold and taking hundreds of images, every so often you get that photo you have been waiting for.
These siblings are two of the five gray wolves residing at Bay Beach Wildlife Sanctuary in Green Bay. They are lighter in color and slightly smaller than the gray wolf in the cover image “Help.” Taken on a crisp February afternoon, I waited nearly three hours for the wolves to howl. Everything had to be just right – the howling, the location of the wolves, and the lighting.
In most cases, a photographer is hoping for bright or slightly filtered light in order to capture the images of their subject. With wildlife, and eagles more specifically, one cannot be too choosey about the light they get. It is ice cold temperatures that keep eagles on the move and increase the chances of an in-flight image. After hours of waiting and very cold fingers and toes, the eagles began to fish. That is the golden moment photographers wait for.
This article provides a glimpse of the variety and complexity within the field of Indian law. Indian people and tribal governments face challenges far different from other people and communities due to their unique historical, legal, and political relationship with the United States. Many of the lawyers who practice in the field do so due to these unique challenges and wanting to assist Indian people and tribal governments with the new and ongoing legal issues that arise.
1 See Cohen’s Handbook of Federal Indian Law § 4.01(1)(a) (Neil Jessup Newton et. al eds., 2012) [hereinafter Cohen’s Handbook]. For a brief history of tribal sovereignty, see David M. Schraver & David H. Tennant, Indian Tribal Sovereignty – Current Issues, 75 Alb. L. Rev. 133, 134-160 (2012).
2 William C. Canby Jr., American Indian Law: In a Nutshell 1-2 (Thomson West 2004) (1981).
3 See Charles J. Kappler, Indian Treaties 1778-1883 (Amereon House 1972) (1904).
5 Chief Justice John Marshall authored the decisions in the three cases: Johnson v. McIntosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); Worcester v. Georgia, 31 U.S. 515 (1832).
6 See William Wood, It Wasn’t an Accident: The Tribal Sovereign Immunity Story, Am. U. L. Rev. 1587, 1629-30 (2013).
7 Johnson, 21 U.S. at 595.
9 Cherokee Nation, 30 U.S. at 17.
11 Worcester, 31 U.S. at 596.
12 The concept of Congress having “plenary” power over Indian tribes originated in Cherokee Nation v. Georgia and Worcester v. Georgia, but the U.S. Supreme Court did not fully articulate this power until its decision in United States v. Kagama, 118 U.S. 375 (1886). When discussing the two earlier cases, the Supreme Court explained how the federal government was to deal with Indian tribes: “In the opinions in these cases they are spoken of as ‘wards of the nation,’ ‘pupils,’ as local dependent communities. In this spirit the United States has conducted its relations to them from its organization to this time. But, after an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure – to govern them by acts of Congress.” Kagama, 118 U.S. at 382.
13 See, e.g., General Allotment Act, 25 U.S.C. § 331 (1887).
14 See, e.g., Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661 (1974).
15 See, e.g., General Allotment Act, 25 U.S.C. § 331 (1887).
17 Armen H. Marjian, An Unbroken Chain of Injustice: The Dawes Act, Native American Trusts, and Cobell v. Salazar, 46 Gonzaga L. Rev. 609, 618 (2011).
18 See Institute for Government Research, The Problem of Indian Administration (1928). This document is more commonly known as the Meriam Report.
19 Frank Pommersheim, Land Into Trust: An Inquiry into Law, Policy, and History, 49 Idaho L. Rev. 519, 520 (2013).
24 Cohen’s Handbook, supra note 1, § 4.04(3)(a), at 252-5.
25 H. Con. Res. 108, 83rd Cong., 1st Sess., 67 Stat. B132 (153).
26 See, e.g., 25 U.S.C. § 891 et seq. (1954).
28 Canby, supra note 2, at 26.
29 25 U.S.C. § 903 et seq.
30 Public Law No. 83-280. Wisconsin is one of six mandatory P.L. 83-280 states, along with California, Alaska, Nebraska, Minnesota, and Oregon.
31 When Congress passed P.L. 83-280, the Menominee Tribe had been terminated and not yet restored. Upon restoration of federal recognition of the Menominee Tribe, the state of Wisconsin retroceded its jurisdiction over the reservation back to the federal government.
32 P.L. No. 83-280, 18 U.S.C. §1162.
33 Cohen’s Handbook, supra note 1, § 1.07, at 99-101.
34 Indian Civil Rights Act of 1968; Indian Financing Act of 1874, 25 U.S.C. § 1451 et seq.; Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq. Congress did not repeal P.L. 83-280, but it did put in place a mechanism by which states could request that the federal government take back all or part of its jurisdiction. 25 U.S.C. § 1323(a) (1968). In addition, if new states wanted to assume jurisdiction over tribe members on Indian reservations, they needed to obtain the consent of the Indian tribes. 25 U.S.C. § 1321(a) (1968).
35 These tribal governments receive a variety of federal benefits through the U.S. Department of the Interior. See What We Do, US Department of the Interior (Mar. 2, 2015), www.bia.gov/WhatWeDo/index.htm.
36 Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014).
37 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 (1982).
38 Aasen-Robles v. Lac Courte Oreilles Band of Lake Superior Chippewa Indians, 2003 WI App 224, ¶ 22 n.7, 267 Wis. 2d 333, 671 N.W.2d 709.
39 McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 168 (1973) (citation omitted).
40 St. Germaine v. Chapman, 178 Wis. 2d 869, 872, 505 N.W.2d 450 (Ct. App. 1993) (internal quotation and citation omitted).
41 White Mountain Apache Tribe v. Bracker, 448 U.S 136, 142-43 (1980) (internal quotation and citations omitted). See also Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians (Teague III), 2003 WI 118, ¶ 25, 265 Wis. 2d 64, 665 N.W.2d 899 (“State circuit courts … have no authority to limit, modify or control the power of the tribal court or vice versa” (emphasis added)).
42 Teague III, 2003 WI 118, ¶ 25, 265 Wis. 2d 64.
43 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987) (citation omitted).
44 McClanahan, 411 U.S. 168.
45 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).
46 Bay Mills Indian Cmty., 134 S. Ct at 2030.
47 Wood, supra note 6, at 1640-49.
48 See Turner v. United States, 248 U.S. 354 (1919).
49 Kiowa Tribe of Okla. v. Manufacturing Techs. Inc., 523 U.S. 751, 756 (1998).
50 Martinez, 436 U.S. at 62-63.
52 Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985).
53 Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987).
54 Worcester v. Georgia, 31 U.S. 515 (1832).
55 Cohen’s Handbook, supra note 1, at 344.
56 Montana v. United States, 450 U.S. 544 (1981).
58 Sanders v. Robinson, 864 F.2d 630, 632-33 (8th Cir. 1988) (applying the first Montana exception in favor of tribal jurisdiction over divorce proceedings); Aernam v. Nenno, No. 06-CV-0053C(F), 2006 WL 1644691 (W.D.N.Y. June 9, 2006).
59 Montana, 450 U.S. at 566.
60 See DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877, 884 (8th Cir. 2013) (indicating that tribal court would still have power to adjudicate when claim “arises out of and is intimately related” to the parties’ contract with tribe member related to activities on tribal land).
61 Patty Loew, Indian Nations of Wisconsin (rev. 2d ed. 2001).
63 See Teague (III), Tribal/State Protocol for the Judicial Allocation of Jurisdiction Between the Four Chippewa Tribes of Northern Wisconsin and the Tenth Judicial District of Wisconsin, Dec. 7, 2001, Wis. Stat. 801.54.
64 Cohen’s Handbook, supra note 1, § 4.02(3)(c).
65 Mark A. Jarboe, Fundamental Legal Principles Affecting Business Transactions in Indian Country, 17 Hamline L. Rev. 417 (1993-1994).
66 Wisconsin Judicare Indian Law Office, Survey of Tribal Courts, 2011. Presented to Wisconsin Access to Justice Commission.
67 The Wisconsin Tribal Judges Association website contains up-to-date information on tribal court bar admission and subject matter jurisdiction for each tribe in Wisconsin. Wisconsin Tribal Judges Association, wtja.org (last visited Mar. 16, 2015).
68 Larry Betz & Donna Budnick, Labor and Employment Law and American Indian Tribes: How State and Federal Laws Apply to Tribal Employment. 83 Mich. Bar J. 16 (July 2004).


A recent case will be of interest to owners and insurers of tractor-trailer equipment. In Jackson v. Wise, ACME Truck Line, Inc. and First Guard Ins. Co., 2017 CA 1062 (La. App. 1 Cir. 4/13/18), the plaintiff filed suit for personal injuries after she was thrown from a Mardi Gras float in Franklin, Louisiana, wherein she named the driver, ACME and First Guard Insurance Company, the non-trucking liability insurer for the tractor trailer, as defendants. Before the accident, the plaintiff and the driver of the 1999 Peterbilt 18-wheeler, which the driver owned, entered into an agreement where the plaintiff, on behalf of her carnival organization, would pay the driver $100.00 for the use of his tractor-trailer.
Years before the accident, the driver and ACME entered into a five-year lease agreement wherein the driver leased his tractor-trailer to ACME to transport cargo for ACME. The lease agreement provided in part that the leased equipment would not be operated for any other purpose other than the transportation of ACME authorized shipments. It further provided that the leased equipment would not be used for any parades, social events, or any private use whatsoever.
Based on the lease agreement, ACME filed a motion for summary judgment arguing that the only allegation against it was that the tractor-trailer was owned and/or being driven by ACME. ACME contended that it was not the owner of the tractor-trailer, and even if it was, it could not be liable based on ownership. At the hearing on the motion, ACME stressed that the driver was not in the course and scope of his employment with ACME, while plaintiff argued that FMCSA regulations, 49 CFR § 350-399, and specifically 49 CFR § 376.12(c)(1), created strict liability on the part of ACME for the actions of the driver.
The trial court ruled that FMCSA regulations only applied to interstate, not intrastate trips, and the accident occurred during an intrastate trip. It also held that the driver was not in the course and scope of his employment with ACME, and granted summary judgment in ACME’s favor. The plaintiff filed a motion for new trial, which urged that ACME presented new grounds for summary judgment in its reply memorandum and at the hearing, which were not set forth in its original motion and memorandum. The trial court denied the motion for new trial and the plaintiff appealed to the Court of Appeal of Louisiana for the First Circuit.
The First Circuit affirmed the trial court’s decision to grant ACME’s Motion for Summary Judgment. The First Circuit noted that the purpose of 49 CFR § 376.12(c)(1) is to protect the public from motor carriers’ attempts to escape liability for the negligence of drivers by claiming that their drivers are independent contractors. The regulation mandates that under a regulated lease, the carrier-lessee assumes exclusive possession, control, and use of the equipment for the duration of the lease and assumes complete responsibility for the operation of the equipment for the duration of the lease.
The First Circuit held that none of the case law cited by the parties were determinative of the issue and because ACME’s trucking liability insurer had not been sued, the issue of whether the federally mandated insurance was not before the court. The First Circuit also held that because the driver was acting outside of the scope of his employment, the requirement that the carrier-lessee assumed exclusive possession, control, use, and responsibility of the tractor-trailer under 49 CFR § 376.12(c)(1) did not apply to ACME under the facts to hold it vicariously liability for the actions of the driver.
This case highlights the First Circuit’s refusal to interpret 49 CFR § 376.12(c)(1) as imposing strict liability on carrier-lessees of tractor-trailer equipment when the actions of the driver have no connection to the furtherance of the carrier-lessees’ business. While the regulation does impose strict responsibilities on the carrier-lessee, the First Circuit’s decision sets forth limitations in its applicability depending on the facts of the case.


text:
It has been established that the development of the Tort of negligence has been gradual. The tort of negligence in its formative stage was treated merely as a mode of committing other torts and not as an independent tort itself. it was increase in population, increase in mechanization and industrialization of society and consequent multiplication of personal injury caused by negligence; have all led to the idea of negligence as a separate tort. The law of tort like those other branches of the law, is concerned with the question of liability. The cardinal principle of liability is that the party complained of should owe to the party complaining, a duty to take care, and that the party complaining should be able to proof that the he has suffered damage in consequence of a breach of that duty. The first attempt to formulate a general principle was made in 1883 by Brett M. R. in heaven v. Pender. After the first attempt to formulate a general principle, there were a lot of uncertainties which slowed the growth of the tort of negligence until 1932. When Lord Atkins came out with the most famous and important creative generalization ‘the neighbour principle’ in Donoghue v. Stevenson which has been largely responsible for the radical development of the tort negligence. Nigerian Courts have followed all the epocal decision, applied and expanded to the Nigeria situations. This research examines the development of the tort of negligence in Nigeria within the general frame work of negligence as a tortuous liability and its applicability to our industries and society. It educates its readers how the wider field of torts of negligence affects a citizen of all sides, his physical safety, his property, domestic affairs, his reputation, privacy and liberty. It was observed that the problem of religious beliefs and lack of education were responsible more than any other factors for the slow development of the tort of negligence in Nigeria.
As social organization developed from a predominantly agricultural to a predominantly technological and urban system, as the relations of men became more and more intimate, the greater was the need, the need of Law. A basic force at work here is change which necessarily has its effects upon the law, habits, manners, modes of thought, the production of goodsand distribution of goods.
The very sizes of the population are far different today than they were a century and half ago. As the society develops law too develop, along, in fact law is one of the greatest instrument for changes and developments1These changes and developments brought about the tort of negligence as a separate and independent tort (Though it is of a recent origin) 2.
It is necessary to emphasize that the law of tort, like those other branches of the law, is concerned with the question of liability; an action founded upon tort is an action between persons, either natural or artificial (i.e. corporation) and the outcome can only be that one of them, the defendant is or is not liable to do or refrain from doing something at the suit of the other.
If there is no defendant whose liability can be established according to the principles of the law then the plaintiff is left without redress.The tort of negligence, in its formative stages, was treated merely as a mode of committing other torts and not as an independent tort itself until 1825. Consequent upon frequency of actions in which negligence was the substance of the action, the increase in mechanization and industrialization of society and the consequent multiplication of personal injury caused by negligence have all led to the idea of negligence as a separate tort itself and not simply as a mode of committing trespass or other torts.
Then came the view that liability for negligence can only exists if the case is covered by a duty which has already been recognized3. It was put most forcibly in Landon‟s case4 that “Negligence is not actionable unless the duty to be careful exists. And the duty to be careful only exists where the wisdom of our ancestors has decided that it shall exist”.Certainly, it is true that in denying the existence of a duty in some cases the judges have done so on the ostensible ground that no authority for such a duty exists, but recently, they have not hesitated to produce a new duty when it has seemed right to them to do so.
That is why Lord Denning L.J. has said, “If we never do anything which has never been done before, we shallnever get anywhere.The law will stand still while the rest of the world goes on; and this will be bad for both”5. The most important thing that has ever happened to the tort of negligence; is the decision in Donoghue v.Stevenson6, a manufacturer of a ginger beer sold to a retailer ginger beer in an opaque bottle.
The retailer resold it to A, who treated a young woman of her acquaintance with its contents. These included the decomposed remains of a snail which had found it way into the bottle at the factory. The young woman alleged that she became seriously ill in consequence and sued the manufacturer for negligence. The doctrine of privity of contract prevented her bringing a claim founded upon breach of a warranty in a contract of sale but a majority of the House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and that he would be liable in tort if that duty was broken.Lord Atkin said; The liability for negligence, whether you style it such or treat it as in other system as a species of „culpa‟ is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.
The rule that you are to love your neighbor becomes, in law, you must not injure your neighbor; and the lawyer‟s question, who is my neighbor? receives a restricted reply;you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question7Out of the above the “neighbor principle” evolved long after the first attempt to formulate a general principle was made by Brett M.R.8Lord Atkin test thus got rid of the law of contract fallacy of privity of contract and provided authority for the proposition that notional duty is owed independent of contract by a manufacturer to the ultimate consumer of his product.
This principle thus over throws the privity of contract fallacy that has inhibited the growth of the law. In this connection and in addition, it is certain that Lord Atkin‟s statement of principle (neighbourhood principle) has been largely responsible for the radical development of the tort of negligence since 1932.Similarly, what the decision in Donoghue did to the tort of negligence generally has become more effective, followed and adopted in Hedley Byrne vHeller Partner9particularly negligent misstatement by Bankers.
Before Hedley Byrne there was no remedy for non fraudulent misstatement on the basis that there were no common law duty for care and no contract. The plaintiff could not succeed in negligent misstatement that was the decision in Derry v. Peek10. It was not until Hedley Byrne that the trend redressing this view began. The House of Lords held that the only reasonwhy liability could not attach was because the defendant made reference without responsibility, without which they would have been liable for negligence for the misstatement.
Nigerian Courts have followed and adopted all the leading authorities in the development of the tort of negligence in Nigeria. The Courts have referred to and relied on those English authorities egDonoghue v.Stevenson11and Hedley Byrne v. Heller and Partners12, in deciding matters that are brought before them. Thus rarely one finds in decided cases the absence of at least one “inspirational” English decision.
And to compound the problem, they are applied without any modification to suit our local exigencies. Nigerian courts and Judges are slow to expand the tort of negligence to new areas or field beyond what the Englishcourts have done.
Negligence is the product of lack of exercise of care or diligence in the performance of certain things. This research has examine the problems of liability and the challenges associated with the establishment of the liability of the defendant, whether professional (skill) or a manufacturer (product liability). It also consider the question of duty of care and the breach of it without which there cannot be liability or the tort of negligence i.e when is a duty said to be imposed on the defendant; when is the defendant said to be negligent and what are consequences of his negligent acts or omissions?
research in this field of study.
result methods. Doctrinal based on decisions arising out of case law (which is the core of this research) and the various views by erudite jurists, as well as expression of relevant opinions and analysis of issues, by scholars in text books, journals, magazines and newspapers are relevant. And empirical result based on focus group discussion carried out within the academic environment.
There are literature on Torts and negligence generally, both foreign and local Authors, but no particular one centered on this topic. The focal point on this research is particularly on negligence, its origin and development in Nigeria. However, the following notable Authors and thesis are relevant to this work as follows:Gandhi13, this book is relevant in the sense that it deals with the fast – developing law of tort in general.
It explains philosophical and social background, leading Indian decisions and other Common wealth jurisdiction where the Nigerian lawemanated from. This writer will use the social and philosophical background in this book to examine how religion and lack of education have affected negatively the development of the Tort of Negligence in Nigeria.
Kodilinye14the book is very relevant because, its focal point is Nigeria. It discussed and explained how the wider field of torts affects a citizen from all sides; his physical safety, his property domestic affairs, his reputation, privacy and his liberty. The Author dwells mainly on leading Nigerian cases on the subject matter as at the time. However, a lot newer leading Nigerian cases have come up since then e.g the rigid position of the Court of Appeal in Kalu Anya v. Imo Concord Hotel has now been watered down in Harka Air Services Nig Ltd v. Emeka Keazor15.Winfield and Jolwicz16.
This book is also of immense value to this work, mainly because it is a revised edition which brings out development and decisions in the English jurisdiction where the Nigerian tort of negligence originated from.Holden Milness J17.The book discussed the law and practice of Banking, it adumbrated the position or condition under which bank becomes negligent and liable to its customer and its de fences 18.
This thesis is relevant to this research mainly in the area of product liability and the many laws which are enacted to protect product users or consumers. Itattempts to explain the general protection a consumer has under the law. Mohammed Sale19 this writer discussed mainly the Tort of negligence under theTHE CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW: ISSUES CHALLENGES AND LESSONS FOR NIGERIA. The writer discussed and tries to inform his readers of their rights.The present research intends to trace the origin of development before independence, after independence and current developments.
This thesis is organized into 5 chapters as follows, chapter one deals with general introduction, historical development of the tort of negligent in Nigeria, statement of the research problem, objectives of the research, justification, scope of the research, research methodology, literature review and organizational layout. Chapter two discussed the general grounds for liability in negligence, it highlights the development of the tort of negligence through the fundamentals of negligence which is duty of care and breach of it.
The concept of reasonable man, foreseeability rule and remote possibility. Chapter three brings out the nature and scope of categories of negligence which includes product liability, negligent misstatement and economic loss, nervous shock, liability of bankers, solicitors/lawyer and Hospital management.Chapter four comprises of defences opened to the defendant which remove liability despite breach of duty. These include contributory negligence, volentinonfitinjuriainevitable accident, statutory de fence and necessity. Chapter five includes summary, findings and Recommendation.

matches: v. v. v. v. v. v.


The funeral will be held this Monday, August 4th, at Temple Beth Shalom at 11:30 AM. The temple is located at 4144 Chase Avenue on Miami Beach. That is at 41st Street and Chase. The synagogue's phone number is 305.538.7231.
ASPEN - A Florida man has died after jumping into a river on Wednesday while trying to save his wife near Aspen.
The Pitkin County Sheriff's Department says the man, Steven Chaykin of Florida, and his wife, who has not been identified, were near the Roaring Fork River 10 miles east of Aspen up Independence Pass.
Deputies on scene say the woman slipped into the river, then Chaykin jumped in to rescue her, but hit his head on a rock.
Bystanders pulled Chaykin from the water and started CPR, but he later died at the Aspen Valley Hospital.
A 57-year-old Florida man died at the Grottos on Independence Pass near Aspen on Wednesday.The man, whose name has not yet been released, slid into a pool to rescue his wife, who had fallen in before him at about 1:30 p.m.The women hit her head and injured her leg, but was otherwise OK, authorities said.The man, however, suffered a severe head injury in the slide then fell over a 15-foot fall into the pool below, witnesses said.A few groups of day hikers at the nearby ice cave jumped into action when they heard screams from the waterfall, but it took five minutes to get the man out of the pool, where he floated face-down.One witness ran to her vehicle and drove toward Aspen, dialing 911 as soon as she was within cell phone range. Others performed CPR until Aspen firefighters and Pitkin County sheriff’s deputies arrived.CPR was stopped at 2:37 p.m.Rescue crews transported the injured woman on a backboard to the trailhead and by ambulance to Aspen Valley Hospital.The Grottos is a popular summertime spot east of Aspen, off Highway 82 as it climbs toward Independence Pass. The Roaring Fork River tumbles over waterfalls and through pools formed in the smoothed stone, creating an enticing spot to take a dip.
The whole community will be mourning Steve's untimely death. Our condolences to his family.
They say that the best trial lawyers are good gamblers.
Well, Bill Barzee and Joel Denaro took a huge gamble today, which almost paid off big. After a week of trial before Judge Jordan, the jury was deadlocked. Barzee and Denaro decided to ask for a majority-wins verdict. Jordan said that if the prosecutor, Frank Tamen, would agree the Court would accept the non-unanimous decision. Tamen said no. So mistrial.
What was the vote, you ask.
Conventional wisdom from the defense bar is to always require a unanimous verdict; never agree to majority wins. Typically, it's the government, not the defense, that requests such a jury decision.
Dear readers, what do you think about the conventional wisdom? About the Barzee/Denaro gambit? Better to live to fight another day? Or take the verdict with the first trial, your best shot at victory?
Federal prosecutors in Miami have failed to secure a conviction of a man who -- according to his own lawyers -- smuggled enormous amounts of cocaine into the United States from Colombia.
The reason: The feds were unable to prove to the jurors' satisfaction that the crimes of Hernan Prada occurred within the statute of limitations.
As a result, jurors split 7-5 on Tueday in favor of acquittal, forcing U.S. District Judge Adalberto Jordan to declare a mistrial in the trial of Hernan Prada.
Prosecutors are expected to retry Prada, who authorities said once ran an international enterprise that pulled in hundreds of millions of dollars a year, as soon as next month.
During the seven-day trial, it was never in dispute that Prada at one time oversaw shipments of cocaine from Colombia to the United States. Even his lawyers conceded that point.
However, that was not enough for a conviction. The underlying issue of the case was this: Did the alleged Colombian drug-cartel kingpin plan or execute any deals after July 2, 1999, when the statute of limitations in his case would have expired?
When it became clear that a unanimous verdict was unlikely, the defense took an enormous chance.
At Prada's urging, attorneys William Barzee, Joel Denaro and Jelani Davis petitioned the court for a rarely used provision: a non-unanimous verdict. At the time of the proposal, it was not known which side had the most jurors in its corner.
All that was needed to declare guilt or innocence in such a case was a simple majority.
Jordan considered the proposal. Assistant U.S. attorney Frank Tamen dismissed it immediately. Later, it became clear that Prada would have walked if the prosecution had agreed.
1. Congrats to my friend, Jonathan Kasen, on his victory today in federal court before Judge Ungaro in his first federal trial.
2. Justice Building to 1000 posts.
3. Interesting post here about probation and PSI's. Isn't it time that someone filed a motion about the probation office practicing law without a license?
4. Go see the Dark Knight. Loved it.
5. Vanessa Blum is all over the federal courts.
6. Above the Law Idol, trying to find a new David Lat. Good luck with that.
7. No more Scabulous on Facebook. How depressing.
8. Cocaine Cowboys II came out. My copy just arrived in the mail. Can't wait to watch it.
is here. Looks like it should be pretty good.
Should I take it personally that they don't link to me even though I'm a "DBR affiliated blog"?
...or is summer flying by?
Kirby Archer pleaded guilty today, agreeing to life in prison for his role in the Joe Cool murders.
Guillermo Zarabozo is proceeding to trial. The government announced that the death penalty is also off the table for Zarabozo. When Judge Huck heard this, he moved the trial date up to August, and discharged the court-appointed death penalty lawyer, Bill Matthewman.
Here's the Sun-Sentinel coverage, the AP's and the Herald's.
"Suit: Contractors caused mold that killed magistrate Klein"
That's the headline for the DBR article here.
"The son and daughter of the late U.S. Magistrate Judge Theodore Klein have filed a wrongful death suit against contractors who handled projects at the courthouse where he worked alleging they created the conditions that killed him."
"These individuals had it all--success, money, and the admiration of their community."
"But they have tarnished their good names and reputations because they wanted even more than they already had, and they wanted it the quick and easy way."
That's Alex Acosta discussing Carlos de Cespedes, 58, and Jorge de Cespedes, 55, co-owners of Pharmed Group Corp.
In a Tuesday afternoon court appearance, the brothers pleaded not guilty, and a federal magistrate ordered their release on $250,000 personal surety bonds.
Their attorneys, Alan Ross and Dennis Kainen, dodged questions about how the brothers ultimately would resolve the case. ''Carlos and Jorge, who are both honorable and charitable men, will be resolving these charges with the same commitment and enthusiasm'' they have shown in this community for many years, the attorneys said in a joint statement.
Tuesday's charges signify a huge fall for the brothers, who in 2003 earned a profit of $48 million. They often showed up in matching Bentleys at Chispa, their restaurant in Coral Gables, which is now closed. They went to basketball games at the Pharmed Arena on the campus of Florida International University. The Pharmed name has since been removed.
The Sun-Sentinel coverage is here. Credit to the Miami Herald for the photo above.
As a former federal prosecutor with a top national security clearance, Marcos Jimenez would seem an unlikely terror suspect.Yet when he travels, the former U.S. attorney for South Florida endures delays, searches and other inconveniences, because someone with his name appears on the government watch list airlines use to identify possible terrorists.It happened most recently Thursday, as security personnel at Fort Lauderdale-Hollywood International Airport pulled aside Jimenez, once the region's top federal law enforcement official, for an intrusive physical pat down."They put you off to the side like an animal in a little pen. They wand you. They grab you everywhere," Jimenez said. "To go through this hassle and inconvenience every time you get on a plane is just extremely frustrating."
Even more absurd, Jimenez says, he can avoid the hassle simply by traveling under his middle name."If I use Marcos Jimenez, I get just short of strip-searched. If I go as Daniel Jimenez, I go right through," he said. "If this is really, truly an important terrorist prevention technique, it's not working because I can avoid it extremely well."
In other news, congrats to my office-mate Marc Seitles (and the co-defendants' lawyers Ken Swartz, Steve Amster, and Lisa Colon) on his not guilty before Judge Altonaga in the last trial in the Tower Building. Judge Altonaga and Judge Cooke are moving to the new building this week, the last judges to do so.
As long as we are on my office-mates, Bill Barzee (and Joel Denaro) start trial Monday morning in front of Judge Jordan defending Hernan Prada, who the government says was one of the kingpins in Medellin who took over for Pablo Escobar. The case is being prosecuted by Frank Tamen.
Via How Appealing:By a vote of 10 to 3, the en banc U.S. Court of Appeals for the Third Circuit holds unconstitutional a federal law criminalizing the sale of creation, sale, or possession of depictions of animal cruelty: You can access today's en banc ruling at this link.
According to the majority's opinion, the "case is the first prosecution in the nation under [the federal statute in question] to proceed to trial, and this appeal represents the first substantive constitutional evaluation of the statute by a federal appellate court."
The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. sec. 48 and to affirm Robert Stevens' conviction. For the reasons that follow, we decline the Government's invitation. Moreover, because we agree with Stevens that 18 U.S.C. sec. 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.
Back in October 2006, The Pittsburgh Post-Gazette had an article headlined "Dog fight videos called free speech" reporting on the oral argument of the appeal before the original three-judge panel. And in January 2005, The Associated Press reported on the trial of the case in an article headlined "Dogfight video seller on trial for cruelty; Virginia man is first charged under 1999 federal statute."
In related coverage, a little over one year ago, Adam Liptak of The New York Times had an article headlined "First Amendment Claim in Cockfight Suit." Liptak's new beat for The NYTimes is the U.S. Supreme Court, which is where the case that the en banc Third Circuit decided today is likely heading next.
That lawsuit about cockfighting referenced at the end was the one I (and Rick Bascuas) filed, discussed here. Unfortunately, we had to dismiss the case as the client's business went under (after we had filed this motion for summary judgment). Looks like we would've won. We had a much stronger claim than the dog fighting case in the Third. DAMN! It's not often you get a chance to get a statute declared unconstitutional. Congrats to the PD's office who represented the defendant in the Third Circuit.
Judge Huck has scheduled a hearing July 28 in which Kirby Archer will plead guilty to first degree murder in the Joe Cool case. He will agree to life in prison..
Prosecutors say the 36-year-old Archer and 20-year-old Guillermo Zarabozo hired the charter boat for $4,000 to go to the Bahamas, then tried to divert it to Cuba.
Here's the news coverage from the Sun-Sentinel, the Herald, and the AP.
"Defense Team Argues DOJ Ideology Spurred Money Laundering Indictment of [Ben Kuehne]"
Quoting Bob Dylan and a legal treatise, attorneys for indicted Miami attorney Ben Kuehne and two co-defendants maintain the "unprecedented" money laundering indictment is ideologically motivated by the Justice Department.
At issue is a 1988 carve-out from the federal anti-money laundering statutes that exempts attorneys from criminal liability in accepting defense fees.
"The Department of Justice has been hostile to this exemption for many years and appears not to accept the policies that underlie it," Kuehne's attorneys said in a 13-page dismissal motion. "However, it is Congress that makes the laws."
Kuehne is charged with laundering drug proceeds while vetting $5.2 million in fees collected by celebrity attorney Roy Black to defend Colombian drug kingpin Fabio Ochoa Vasquez. Kuehne, Colombian attorney Oscar Saldarriaga and accountant Gloria Florez Velez were hired to make sure the money was "free from taint" to pay Black's team.
Miami attorney Richard Strafer, representing Saldarriaga, contends the government doesn't have a case.
He makes the point in his filing with flair, quoting folk rock legend Dylan's song "Like a Rolling Stone" in his motion to dismiss a wire fraud conspiracy count, writing, "When you [ain't] got nothing, you got nothing to lose."
The government alleges the defendants committed wire fraud by converting pesos to dollars to bring them to the United States and subvert the Colombian government's right to seize the assets.
Motions for Kuehne and Saldarriaga argue the Colombians never made an effort to seize the assets and to this day have not filed a forfeiture action.
Strafer, paraphrasing a decision from the 11th U.S. Circuit Court of Appeals, said in an interview, "The government has taken off in an aircraft without wings, engines or wheels" in the wire fraud count. He is asking for additional time to file more motions hinging on complicated issues of foreign law.
Florida trial court officials plan to handle future budget cuts with layoffs rather than furloughing employees for weeks without pay. The state Trial Court Budget Commission, which is made up of members of all 20 judicial circuits, met last week to formulate a plan to deal with a projected budget shortfall that already has state agencies scrimping. A hiring freeze and travel ban imposed earlier this year in a budget-saving move have been extended indefinitely, said State Courts Administrator Lisa Goodner. The commission splintered when considering whether to absorb fresh cuts with layoff or furloughs. “A lot of people saw furloughs as a way to make a statement and layoffs is taking it again,” said Palm Beach Chief Judge Kathleen Kroll, who attended the meeting. The commission has not determined how many people would have to be laid off or when, but state agencies are operating with a 4 percent budget holdback.
Who's got some tips for me on an interesting trial or hearing in federal court. Come on people.
Our previous coverage of Sean Conway's bar issue and proposed settlement is here (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand). The Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment.
The one worth reading is the ACLU brief.
The case of an over-enthusiastic courtroom handshake that escalated into an assault charge against a local attorney was dropped Thursday by federal prosecutors who deemed it the "prudent" thing to do.Kathy Brewer Rentas, with the Hollywood firm of Becker & Poliakoff, spent the night in jail after her Feb. 7 arrest for assaulting a federal prosecutor by handshake in a Fort Lauderdale courtroom.The victim, Assistant U.S. Attorney Jennifer Keene, was prosecuting Brewer Rentas' husband, Anthony Rentas, for violating probation in a cocaine distribution case out of New York. A hearing had just concluded in which Anthony Rentas was put on house arrest for 90 days.Marshal Robert Kremenik was in the courtroom when Brewer Rentas insisted on shaking hands with Keene. The prosecutor refused at first, he said, but Brewer Rentas persisted, following Keene.
"Brewer forcefully grabbed onto Keene's right hand and squeezed it, pulling Keene toward her, forcing Keene off balance," Kremenik wrote in his report. "With Keene in hand, Brewer made an upward, then a quick downward motion and pulled Keene toward the ground moving her forward, almost causing Keene to fall to the ground."Gilberto Pay, a court security officer, told Kremenik that Brewer Rentas "almost pulled her arm out of the socket."
The prosecutor who headed the federal public corruption cases against Dr. Cyril H. Wecht and the Allegheny County Sheriff's Office is crossing the aisle.
Thursday was the last day in the U.S. Attorney's Office for Stephen Stallings, who heads down Grant Street from the federal courthouse to go into private practice at Dreier, a law firm in the Koppers Building.
"Most of my career has been in private practice," said Stallings, 40. "And this was the right time for me and my family to make the return."
Stallings practiced civil law in south Florida before joining the U.S. Attorney's Office in Miami in 2001. He moved to Pittsburgh, his wife's hometown, in 2004.
Honestly, I can't keep up with all the twists and turns of Mr. Thompson's various cases. I do know that Judge Dava Tunis has recommended that he be disbarred for life (169 page order). And on another front, he is suing Chief Judge Moreno and the U.S. Marshal. For more updates, visit Game Politics.
U.S. Attorney Alexander Acosta, right foreground, and Diego Herrera, Director of the Colombian Institute of Anthropology, left, foreground, look at recovered artifacts in Miami, Tuesday, July 8, 2008. Federal authorities in Miami have recovered a treasure trove of pre-Columbian gold, artifacts and emeralds, which were returned to the Colombian government. The treasures will be handed over to authorities from the South American nation on Tuesday. Federal authorities say the items were recovered from an Italian citizen who was living in south Florida and illegally smuggling them into the country.
Can you come up with a better caption?
Please re-write and re-file today."
There's a new salmonella threat in South Florida and this time it's tiny turtles, not tomatoes.Federal prosecutor Thomas Watts-Fitzgerald filed misdemeanor charges last week against a Hollywood-based reptile business. The business is accused of violating a public health law banning the sale of turtles with shells less than 4 inches long.Strictly Reptiles, which claims to be the nation's largest wildlife importer/exporter, illegally supplied 400 undersized Mississippi map turtles and 600 Yellow-bellied sliders that turned up for sale at flea markets, kiosks and pet stores, prosecutors allege.Congress enacted the ban in 1975, after public health investigations identified small turtles as a major source of human salmonella infections, particularly in children who liked to put the critters in their mouths.
Fourth of July weekend three years ago, the SDFLA blog was born -- the first (I think) legal blog in South Florida (since then, a bunch of great local legal blogs have become daily reading -- Rumpole, Broward Blog, SFLawyers, to name a few).
Here's our very first post.
And our 2nd (and here).
This is the 930th post! The blog has grown quite a bit and it's been a lot of fun. Thanks for stopping by and reading.
SPECIAL NOTE TO AUSAs and PDs -- on July 23rd we are having a lunch time talk (sponsored by the Federal Bar Association) on opening statements. The panel will include Chief Judge Moreno, Jan Smith, Ed Stamm, and Matt Menchel. Lunch will be served. RSVP to Lourdes at Lourdes_Fernandez@flsd.uscourts.gov AUSAs and PDs only for this one.
Benson then attacked Bill, punching him twice in the face. Bill was carrying his briefcase in one hand and his jacket in the other. Bill then tried to push and kick Benson away. He put Benson in a headlock and subdued him until the Marshals came and broke it up.
Benson told others that he cold-cocked Bill because of Bill's comments."
If you were an eyewitness or have further information please email me.
This post is coming straight at you from the en banc 11th Circuit. I know, I know -- b-o-r-i-n-g.
1. First up is United States v. Svete. The Court agreed to hear the case en banc. This is going to be followed by all prosecutors and defense lawyers. The panel decision reversed a mail fraud conviction because, the court held, mail and wire fraud offenses do not encompass schemes which are not calculated to deceive a reasonably prudent person. The Court will address whether mail fraud (and related offenses) encompass schemes which are not calculated to deceive a reasonably prudent person? Get fired up baby!
2. Next is Jerry Greenberg v. National Geographic Society. No, not that Jerry Greenberg. This Jerry Greenberg. Can National Geographic reproduce (on a CD set) old magazines with Greenberg's pictures without his permission?
the print issues of the Magazine, the reproduction of Greenberg’s photographs in the CNG was privileged under 17 U.S.C. § 201(c) of the Copyright Act and did not constitute an infringement of Greenberg’s copyrights. However, a panel of this Court in Greenberg v. National Geographic Society (Greenberg I), 244 F.3d 1267, 1275–76 (11th Cir. 2001), reversed and remanded for the district court to “ascertain the amount of damages and attorneys fees that are, if any, due as well as any injunctive relief that may be appropriate.” After a jury trial on damages, the jury returned a verdict against National Geographic in the amount of $400,000.
(Greenberg II), 488 F.3d 1331 (11th Cir. 2007).5 This Court then vacated the Greenberg II panel opinion and granted rehearing en banc to address the question of whether National Geographic’s use of Greenberg’s photographs in the CNG is privileged.
In the light of the Supreme Court’s holding in Tasini that the bedrock of any § 201(c) analysis is contextual fidelity to the original print publication as presented to, and perceivable by, the users of the revised version of the original publication, we agree with the Second Circuit in Faulkner and find that National Geographic is privileged to reproduce and distribute the CNG under the “revision” prong of § 201(c).
indexes, its zoom function, and the introductory sequence—do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear.21 We REVERSE and REMAND to the district court for proceedings consistent with this opinion.


text:
Moral Here Is To Pursue Arbitration If You Elect To Do So.
Mike Hensley, my co-contributor on the calattorneysfees.com website, has done a recent post about N.D. Cal. U.S. District James Donato’s July 24, 2018 order in which he will be imposing yet-to-be-sought sanctions against Fitbit and its defense counsel in a consumer action. District Judge Donato decided that the defense conduct in compelling arbitration and then announcing a decision not to pursue it justified “inherent by the court” sanctions to control bad-faith litigation conduct. Mike’s full post tells it all, including the district court’s colorful passage indicating why many people, including judges, are skeptical about arbitration agreements.
However, Ninth Circuit Panel Did Indicate In A Footnote That It Might Have Been Wrong To Say Certain ERISA Claims Inarbitrable As A Matter Of Law.
In Munro v. University of Southern California (USC), No. 17-55550 (9th Cir. July 24, 2018) (published) (Thomas, Chief Judge, author; Friedland, Circuit Judge; and Zilly, W.D. Wash. District Judge by designation) confronted a situation where USC required current and former employees to sign standard employment contracts with arbitration clauses. However, the language only covered them in individual capacities such that the controversy here was whether these arbitration clauses covered employees bringing collective claims for breach of fiduciary duty against USC for the administration of certain ERISA plans. The district judge denied USC’s motion to compel arbitration after concluding that it did not encompass the ERISA plan challenges brought by the employees.
The Ninth Circuit agreed in a 3-0 panel opinion.
The summit issue under the Federal Arbitration Act (FAA) was whether the employment contract’s arbitration clause encompassed the dispute at issue. Employees won on that issue.
Earlier, in U.S. ex rel. Welsh v. My Left Foot Children’s Therapy, LLC, 871 F.3d 791 (9th Cir. 2017), decided under a similar employment contract that an arbitration clause did not cover qui tam claims brought by an employee on behalf of the U.S. government under the False Claims Act (FCA). The Ninth Circuit, in Munro, found that Welch’s reasoning did apply, because qui tam suits under the FCA—where a plaintiff sues for injury to the government—was akin to ERISA fiduciary breach suits—where a plaintiff sues for injury to the ERISA Plan. Beyond that, neither a plaintiff in an FCA suit nor a plaintiff in a similar ERISA suit can alone settle the suit. So, the USC arbitration clause was not broad enough to encompass “representative” claims of the nature alleged under ERISA.
However, not everything was lost from the defense perspective. In a footnote, the Ninth Circuit panel did hint quite strongly that its earlier holding in Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir. 1987) might have been wrongly decided. Amaro found that ERISA 409(a) claims are inarbitrable, but the Ninth Circuit panel suggested this conclusion might have been wrong as a matter of law based on intervening binding authority—but did not have to reach the issue based on its narrower holding.
BLAWG OBSERVATION—I noticed that Eugene Scalia was on the losing side of the arbitration issue. Given his deceased father’s (former SCOTUS Justice Antonin Scalia's) views favoring arbitration and his pronouncements in Concepcion/other cases, his father might be rolling in his grave based on the result in this case, circumspect as it might be.
Mediator Paul Fisher's Article Describing Varieties of Mediation Is Available On-Line.
A classic summary of "Creative Mediation Options" (August 2000) authored by California mediator Paul Fisher is available on-line at this link. Paul Fisher describes, and summarizes advantages and disadvantages of: baseball mediation, golf mediation, pocket golf mediation, binding mediation [perhaps an oxymoron], high-low mediation, mediation/arbitration, arbitration/mediation, and mini-trial.
Members In Good Standing With Legal Profession In Foreign Country Will Be Able To Represent Client In California Arbitration.
On July 18, 2018, Gov. Brown approved Senate Bill 766. The new law will allow members in good standing in the legal profession in a foreign country to represent their client in California arbitrations and mediations. This solves a problem created by California Business and Professions Code, Section 6125, which provides: "No person shall practice law in California unless the person is an active member of the State Bar." The text of SB 766 is available here. The new law should open up opportunities for conducting more international arbitrations in California.
His Article Appears in The July 2018 Edition Of The Orange County Lawyer.
On December 25, 2017, contributor Marc posted on CVS Health Corp. v. Vividus, LLC, 878 F.3d 703 (9th Cir. 2017), where the Ninth Circuit Court of Appeals held, based on a reading of the "plain meaning" of the Federal Arbitration Act, specifically, 9 U.S.C. section 7 that: "[T]he FAA does not grant arbitrators the power to order third parties to produce documents prior to an arbitration hearing.” This holding squarely conflicts with an Eighth Circuit decision to the contrary. (Life Ins. Co. of Am. V. Duncanson & Holt, 228 F.3d 865 (8th Cir. 2000).) Read Marc's December 25, 2017 post here.
The district judges could remain available as a forum to address an unduly burdensome subpoena issued by arbitrators.
Different Handbook Versions Seen As Negligent Or, At Worse, Deceptive.
This case involved interesting PAGA waiver and severability issues under a very specific factual setting fraught with confusion.
The situation went this way: Employer, during the employment of plaintiff hourly employee in Ventura, adopted a policy requiring arbitration of legal claims arising from the employment relationship. Plaintiff employee had signed both an English and a Spanish version of employer’s dispute resolution agreement, although there was a major difference between the two. Both handbooks required arbitration of employment disputes and denied an employee’s right to bring an action under the California Private Attorneys General Act. The English version stated that the denial of the right to bring a PAGA action was severable if such denial was found unenforceable, while the Spanish version provided that the PAGA denial was not severable.
After the plaintiff filed wage/hour and PAGA claims, employer filed a motion to compel arbitration of plaintiff’s claims, relying on the handbook provisions. The trial judge denied the motion to compel, finding that (1) the differences in the two versions of the handbook were “propound” concerning a “very significant subject,” and (2) the arbitration agreement had to be construed against the drafter, namely, the employer.
The 2/6 DCA affirmed in Juarez v. Wash Depot Holdings, Inc., Case No. B282667 (2d Dist., Div. 6 July 3, 2018) (published) (Gilbert, P.J., author, concurred in by Perren, J. and Tangeman, J.).

matches: v. v. v. v. V. v.


Nail Art 2019 Black 2019 If u are looking a lot of designs in a beautiful nail design ideas. Always find at all For this Nail Art Website. our posts forever present anyone very easy and artistic nail art design. Here stock 20 beautiful to suggest every womens next performance of nail designs.
This nail art design is very simple and is the up to date choice for indovidual who is just set off. You do not need any added materials apart from your nail art polish for this. This Nail Art 2019 Black tips will be set out using indubitable colors, but thats completely best to every people.
Designs and popular always changing, also different month have different art line. My Web Blog going to give everyone latest trends nail ideas. So now our web bring Nail Art 2019 Black.
The fascinating wallpaper is other parts of Nail Art 2019 Black has dimension 774 x 1161 pixel. You can download and obtain the Nail Art 2019 Black images by click the download button below to get multiple high resolutionversions. Here is fundamental information about Nail Art. We have the resource more wallpaper about Nail Art. Check it out for yourself! You can acquire Nail Art 2019 Black and see the 2019 Nail Art 2019 Black in here.


text:
Trusts are a flexible tool used in all aspects of our economy. They were developed as a means of protecting and perpetuating the wealth of high income families. It is perhaps not surprising that they make an appearance in family law cases. A trust is a relationship between trustee and beneficiary. Trust law has well developed principles about this relationship. How trusts fit into family property and support law in Ontario and similar jurisdictions is not as well-developed, with basic concepts still subject to uncertainty such as: whether a trust interest is property, how it should be valued if it is property, and when to impute trust benefits into income for support purposes.
1. Is a trust interest property?
3. Whether an item is alienable or inalienable, it is still property.
Following Brinkos a consensus appeared to have developed in Ontario jurisprudence that a beneficial interest in a trust is property under the Act. Decisions turned not on that issue but on how to value such an interest if discretionary in nature. There were a number of cases in which courts implicitly considered a beneficial interest in a discretionary trust as property under the Act without any analysis of the question as to whether it was within the statutory definition. This changed in Durakovic v. Durakovic where the court found that a beneficial interest in a discretionary trust does not fall within the definition of property under the Act unless the spouse has control over the trust or the trustee is required to provide funds in certain exigent circumstances to the spouse. In reaching this conclusion, the trial judge relied on the jurisprudence on what are now called Henson Trusts. Under Ontario’s benefits legislation, a recipient of a disability pension may not have liquid assets over a certain threshold. In Ontario (Director of Income Maintenance, Ministry of Community and Social Services) v. Henson, the Court of Appeal affirmed that the interest a disability claimant has as the object of a discretionary trust does not fall within the definition of liquid assets in the Family Benefits Act. Unlike the definition of property in the Family Law Act, the definition of “liquid assets” in the Family Benefits Act is specific and narrow.
R.1(1)(a) “Liquid assets” means cash, bonds, stocks, debentures, an interest in real property, a beneficial interest in assets held in trust and available to be used for maintenance, and any other assets that can be readily converted to cash.
The trial judge in Durakovic acknowledged the difference in definition between the Family Law Act and the regulations to the Family Benefits Act but did not discuss the implications, if any, of that difference on the question of whether the object of a discretionary trust must include that interest in his or her net family property.
Some years later, in Mudronja, the court considered the argument that from a trust law perspective the object of trustee discretion does not have an existing property interest but, rather, an expectancy. The court concluded, however, that the definition of property in the Family Law Act must be read contextually in light of the purposes of the Act. The preamble to the Act provides for: “the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership.” The court held that to ensure an equitable result on marriage breakdown a trust interest cannot be automatically excluded from a spouse’s property because it is discretionary and concluded: “The approach needs to be contextual, having regard to the particular circumstances of the parties, their financial situation and the terms of the trust in relationship to the marital relationship on V-day.” In the particular circumstances of Mudronja, the court had no difficulty in finding that the husband’s beneficial interest was property as he was the sole trustee of the trust, the trust deed granted him the power, not as a fiduciary, to name himself as beneficiary of the trust, and he had the discretion to distribute the trust assets to himself and to dispose of them in any manner he deems suitable.
a. Any evidence with respect to the founding intent of the trust. Was the trust designed to effectively allow control by the beneficiary?
f. The relationship of the beneficiary to the trustees. Are the trustees independent and at arm’s length or are they instead family members or other persons who may not act independently.
In Borges v. Santos, a support enforcement case, the court, in obiter, cited Durakovic and Kochar and found that absent control or a requirement of the trustee to provide funds in exigent circumstances, an interest as beneficiary of a discretionary trust falls outside the definition of property in the Family Law Act.
c. A beneficial interest in a discretionary trust has been recognized as a form of property, that is as a chose in action, capable of protection by a court in equity.
d. The question of a spouse’s interest in the trust is considered in the context of the evidence of actual control and acts of ownership.
The degree of control that a spouse has over a discretionary trust interest has always been relevant to the value of the interest. A number of courts have now imported the question of control into the primary issue of whether the asset is property or not under the Family Law Act. Whether that is a sustainable reading of the “plain, direct and broad” language of the Act that our appellate courts will uphold remains to be seen. From a practitioner’s perspective the question of whether a discretionary trust interest is property is more open than it has been since the Act was introduced. Given the potential to shield significant assets from equalization using this vehicle if a beneficial interest in a discretionary trust is not property or only property if the beneficiary has control, there will be further litigation on this point until there is clear direction at the appeal level.
2. When is a trust a sham?
A trust must have certainty of intention by the settlor, certainty of the subject matter of the trust and certainty of the object of the trust. Where a settlor does not truly intend to create a trust and dispose of assets, but rather wishes to maintain real control over the assets but use the form of the trust to frustrate creditors, spouses, or the tax authorities, that is a sham trust. It fails the requirement of certainty of intention to create the trust. If a court finds a trust purportedly settled by a spouse is a sham then the assets of the trust fall within that spouse’s net family property. The onus of proving that the trust is a sham will lie on the spouse challenging the trust. It will be a hard task to prove that a trust settled well before separation is a sham. Courts are reluctant to find a sham where a trust has operated for some years given the potential tax consequences as well as the interests of the beneficiaries of the trust.
A beneficial interest in a trust does not give the beneficiary any property rights to a specific asset of the trust. This principle permits spouses to circumvent the matrimonial home provisions of the Family Law Act. If a family home is owned by a trust of which one of the spouses is a beneficiary, it does not fall within the definition of matrimonial home in the Act. There is no loss of deduction for the value of the home at date of marriage, even assuming that the beneficial interest is property under the Act. There is no restriction on disposition and there are no rights of possession. This so even if the spouse is both beneficiary and trustee.
Trusts present particular valuation problems. There may be discounts related to liquidity or contingencies for the beneficiary to receive the benefit of the trust. For discretionary trusts, the question of value turns on control. For example, in Mudronja, given the husband’s power of appointment over the trust, the court allocated all the value of the trust’s corpus, which were shares in a company, to his net family property. Although his wife was a beneficiary of the trust, the court allocated to her a value of $1 for her interest as on the valuation date she and her husband were adverse and she could expect to receive nothing from the trust. By contrast, in Sagl v. Sagl, the court allocated to the husband a pro rata share of the value of the trust based on the number of beneficiaries at the valuation date, although he was a trustee with a power of appointment to appoint or remove a trustee. An interesting Saskatchewan case, Grosse v. Grosse¸ considered these issues, albeit under a quite different family property regime. In Grosse, the Saskatchewan Court of Appeal shared the full value of the trust as family property. In that case, the husband as trustee and beneficiary had control over the trust with the discretion to take the entire income and capital of the trust. The court did not attribute any share in the trust to the parties’ sons who were contingent beneficiaries.
Trust income is also relevant for support determinations. A court may impute income to a spouse who receives income distributions or other benefits from a trust. This is not limited to trust distributions. A spouse who receives a family loan that is likely to be repaid if and when that spouse receives future trust distributions, may have that loan imputed into his income. Capital disbursements from a trust to a spouse may also be imputed as income in an appropriate case, where the spouse is using the capital to support his lifestyle. Where the recipient of capital disbursements from the trust for capital uses and the disbursements were not recurrent then they may not be included in income for support purposes. These cases are fact specific.
To evaluate whether a trust interest is property, its value, and the impact on support claims may require significant disclosure. As a starting point, whether the spouse is trustee or beneficiary (or both), production of the trust deed, financial statements or balance sheets for the trust, trust tax returns, and the history of distributions, if any, are required. If the trust holds corporate interests, financial statements for those underlying assets may need to be obtained. Where the spouse is a beneficiary only, obtaining disclosure requires the involvement of third parties and complying with the procedural requirements for third party disclosure. Interestingly, in Di Luca v. Di Luca, the court ordered the spouse with the beneficial interest to shoulder the burden of initiating a third party disclosure motion against the trust, rather than imposing that cost on the other spouse. The breadth of disclosure ordered on disclosure motions relates directly to the extent to which the court accepts the validity of claims that the trust interest is property or relevant for support. If the court is not persuaded of the legitimacy of the claim, the third party disclosure requests will look like a fishing expedition.
When trust issues arise in family law cases, whether property or support, they require careful analysis of the trust documents, the background circumstances of the settlement, the history of the trust, and the developing case law. With trust interests the chances are high that the spouses do not themselves understand them and that they have received advice about the nature of their interest from other professionals based on purely trust or estate principles that do not take into account the family law context. This is an area of law that would benefit from more guidance from the courts and to achieve that the cases that are litigated will need to be well presented by counsel alert to the particular factual and legal issues trust interests involve.
Reg. 318, R.R.O. 1980, as am.
 The definition matches the Ontario language on the significant points.
 Creighan v. MacPhee, theCreighan v. MacPhee 2017 CarswellPEI 80, aff’d 2018 Carswell PEI 1 (P.E.I.C.A.) at para. 18, citing Gartside v. Inland Revenue Commissioners (1967),  1 All E.R. 121 (U.K. H.L.) at 134. In the English case, the interest was found to be property but not a taxable interest under the tax legislation.
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

matches: v. v. v. v. v. v. v. v. v.


Thank you for your response to Citizen Action’s request for EPA Oversight and National Priorities Listing for the Kirtland Air Force Base aviation and jet fuel spill. EPA maintains oversight authority over the Kirtland Spill under the Resource Conservation and Recovery Act (RCRA). Recently, EPA Region 6 has been reported by the EPA Inspector General as needing to improve oversight activities.
With that in mind, we were disappointed with your response for several reasons. There are concerns for lack of enforcement of the Resource Conservation and Recovery Act (RCRA) that were identified in our letter and that were not addressed. Under 42 U.S.C. §6973 (RCRA §7003), where there is imminent and substantial endangerment to public health and the environment, the EPA has authority to take actions independent of the corrective actions taken under 42 U.S.C. §6928 (RCRA §3008). The Citizen Action letter of August 28, 2012 presented enough reliable evidence to enable a reasonable person to conclude that action by EPA under §6973 is appropriate.
At the present moment, there is no approved Interim Measures plan (IM plan) for containing the 24 million gallons of jet fuel (LNAPL) residing in the Albuquerque drinking water aquifer and heading directly for ABQ’s most productive well field, the Ridgecrest wells. The Air Force’s plan submitted to NMED for the containment of the LNAPL plume that was approved in writing by John Kieling a year ago, was verbally rejected by Jim Davis at the September 2012 ABQ Water Authority Board meeting as too risky. Jim Davis also verbally told the Water Board in the same meeting that he was going to watch the Air Force try to stop the migration of the LNAPL plume with thermal oxidizer technology. Acceptance or rejection of Air Force plans for the LNAPL containment requires written documentation rather than verbal acceptance by the NMED. Moreover, the thermal oxidizer technology will not remove dissolved constituents or the LNAPL, the bulk of which is now trapped beneath the water table.
EPA Office of Underground Storage Tanks recommended for EDB and 1,2-DCA to “Remediate lead scavengers, aggressively when such constituents could threaten a source of drinking water.” http://www.epa.gov/oust/cat/lead_scavengers_memo_05212010.pdf That is not happening at KAFB. The Air Force has never submitted an IM plan to contain and remove what may be some 2 trillion gallons of EDB contaminated water heading for ABQ’s most productive drinking water wells. The Air Force informed the public and the U.S. Congress in March 2011 that the EDB plume was just going to disappear due to natural processes. No data existed to make that representation as is documented in Citizen Action’s August 28, 2012 letter. The Albuquerque Bernalillo County Water Utility Authority is considering two resolutions for EDB water treatment at the Ridgecrest well #5 based on the growing evidence that the EDB plume is going to reach the municipal well. ABQ can ill afford to shut down a well that is producing 20- 30% of the City’s water supply.
The EDB and LNAPL plumes have been allowed to migrate almost completely off the Kirtland base into the city of Albuquerque toward the municipal wells. The Air Force and NMED still do not know the lateral or vertical extent of the EDB plume after 13 years of characterization efforts.
At the present moment, the Air Force has not submitted an IM plan for removing the 24 million gallons of jet fuel (LNAPL) dissolving into the Albuquerque drinking water aquifer and heading directly for ABQ’s most productive well field even though the NMED in 4 separate letters (i.e. April 2, 2010, August 6, 2010, December 10, 2010, and March 30, 2011) have asked for this plan.
The staff is monitoring this situation why have these above situations been allowed? Albuquerque may lose a sizable proportion of its drinking water because of the present and past mismanagement of this terrible spill.
RCRA concerns were not substantively addressed by the October 4, 2012 EPA letter.
1. Characterization has not been achieved for the Avgas/jet fuel spill for over 13 years. The extent of the plume of Ethylene Dibromide (EDB) has not been determined and may already be present at or very near Albuquerque’s municipal wells. No monitoring has been conducted in the vicinity of ABQ’s wells. The nearest monitoring well is over 2000 ft away from the Ridgecrest #5 well. The claim of “safe” municipal drinking water comes from monitoring 600-800 ft long municipal well screens that provide enormous dilution for samples. A major PCE concentration 15 times above drinking water standards was discovered in boreholes drilled for new monitoring wells. Why is there no information provided from the boreholes regarding the EDB contaminant?
While the PCE may not be related to the fuel spill itself, what evidence is there that the PCE is not related to other operations occurring at KAFB and/or Sandia National Laboratories? Tom Cooper indicated at the October 26, 2012 KAFB semi-annual meeting that the PCE was found in the groundwater during its well drilling operations for the fuel spill. The presence of a high level of PCE in the groundwater along with the fuel spill components could involve potential action under CERCLA.
There are many possible sources for PERC contamination at Kirtland and Sandia National Laboratories. In 1995 and 2007 Sandia conducted computer modeling for potential releases to groundwater from the 2.6-acre dump called the Mixed Waste Landfill. The earlier modeling identified PERC as a contaminant that could be released from the dump to groundwater below the dump, and the recent modeling confirmed that result. PERC contamination has been present for many years at the Tijeras Arroyo groundwater area of concern.
2. The sampling of soil and groundwater have been conducted inappropriately and for the data that was flawed, the NMED did not require re-sampling of 18 wells that had air in the samples that vitiates the reliability of the samples for decision making. The sampling of Volatile Organic Compounds (VOCs) in the 4th Quarter of 2012 violated EPA protocols for sampling as was described in detail in our letter. The laboratory sample checklist shows that seals on sample bottles were not intact upon arrival; temperatures were not within the correct range of > 0º C to 6º C; sample temperatures were not taken and recorded upon receipt; traffic report or a packing receipt was not present. VOC sample analysis took place weeks later. Mixed air samples in Tedlar bags could not be performed at all.
Use of such flawed sampling data for decision making defeats characterization and violates RCRA. There is concern for the extent that sampling results do not comply with RCRA and there is awareness of the use of such sample data as not being true and correct. 42 USC §6928(d)(C)(3).
According to the 2d Q report, vadose zone contaminant mass has still not been determined. The overall effect of the current SVE efforts is difficult to determine based on the vapor concentration data. Rising water levels have caused a number of wells to have screens that are now flooded with the top of the screen below the current water table. Second Quarter 2012 measurements show that groundwater elevations now exceed the top of the screens in nine shallow groundwater monitoring wells.
Other than very limited SVE treatment for soil vapor, the technical solutions under discussion in your letter are not in place and there are numerous reasons why such solutions may not be viable. These technical limitations were discussed at length in our August 28th letter and your letter does not address any of those technical limitations. SVE technology cannot remove LNAPL trapped beneath the water table. Moreover, LNAPL does not readily vaporize even when floating on the aquifer. Skimmer technology is not under consideration for containment wells because KAFB representatives have stated they do not want to treat the contaminated water raised to the surface. The new thermal oxidizer is untested and still will not address the LNAPL now trapped beneath the water table and dissolving into the aquifer.
“The effects of breathing low levels of EDB have been found to cause liver and kidney damage; breathing high levels can cause death. … If the Environmental Protection Agency [NMED] decides to try air sparging and vapor extraction, they should be cautious with their methods. Airflow of the harmful vapors through the soil once they are pushed out of the groundwater may not be uniform, could become uncontrolled, and would therefore still pose a threat to the environment.” http://conservancy.umn.edu/bitstream/59506/1/5.5.Swenson.pdf The potential for the release of ethylene dibromide through air sparging and the need for vapor extraction system to remove the harmful vapors to protect against human health effects have not been discussed with the public in Albuquerque.
Would you please come to Albuquerque and meet with Citizen Action, concerned neighborhood associations and citizens of Albuquerque, to allow us to exchange information on how to improve the future management of the Kirtland spill.


text:
In March18 of 2015, in Kiev was arrested the head of the Workers' party of Ukraine Aleksandr Bondarchuk. He was the parliament member of the Verkhovna Rada of Ukraine of the 3rd and 4th convocations, chief editor of the newspaper "the working class", active anti-fascist and a fighter for social justice.
After the arrest, he was charged with assault on the territorial integrity of Ukraine, becoming another political prisoner.
Alexander Bondarchuk had participated in the struggle against NATO, were protesting against the rehabilitation of Ukrainian supporters of Hitler, and that this activity was the main reason for his arrest.
Alexander Bondarchuk also headed the All-Ukrainian Union of workers – the trade Union that fought for workers' rights in Ukraine. The arrest of Alexander Bondarchuk is a striking confirmation of the existence of political repression in Ukraine.
Union of political emigrants and political prisoners from Ukraine.
Dnepropetrovsks' antifashist group "Ekaterinoslav Soyus"
At June 18, 2014, more than one year ago, in Mariupol was kidnapped Sergei Dolgov the editor of the Ukrainian socialist newspaper, "I want to go to the Soviet Union!"
Since then, it took many months, but the journalist is still held in the dungeons of the Security Service without charge, without a lawyer and medical care.
No public trial against Sergei Dolgov, socialist, journalist and editor, was conducted. Ukraine is actually grossly violating the European Convention for the Protection of Human Rights and Freedoms (ECHR), ratified by the Supreme Council in 1998.
ECHR in this case is breached in such parts: Art. 3 (prohibition of torture) of Art. 5 (right to liberty and security) of Art. 6 (right to a fair trial) of Art. 7 (no punishment without law) Art. 9 (freedom of thought, conscience and religion), Art. 10 (freedom of expression) of Art. 13 (right to an effective remedy) of Art. 14 (prohibition of discrimination).
Sergei Dolgov was abducted and thrown into prison only because the State of Ukraine has violated European and universal values, imposed censorship and discrimination on political grounds and other convictions, freedom of thought and freedom of expression are not recognized as human rights there.
At the same time the supreme legislative body of Ukraine - Supreme Council - did not take the decision to refuse to ratify the ECHR or the articles of the Convention have been violated in the kidnapping and illegal imprisonment of Sergei Dolgov.
Sergey Dolgov did not commit any crime, he was not lawfully brought to any charges, and has not been granted the right to an effective remedy.
In flagrant violation of the ECHR, the state of Ukraine can not qualify for any status in the EU, since human rights and freedoms for the European democracies are immutable values.
The communists of Greece sent a request about the fate of Sergei Dolgov to the European Parliament.
"... Abduction of Sergei Dolgov is a felony, and is in no way acceptable. Ukrainian authorities must thoroughly investigate the matter and bring those responsible to justice.
The European Union fully supports the position of the OSCE Representative on Freedom of the Media in relation to the case and will keep track of the status of the investigation, in close cooperation with the OSCE. "
The request and response are available on the official website of the European Parliament http://www.europarl.europa.eu/.
We ask international human rights organizations and all people of good will to join the rescue campaign for Mariupol journalist and editor Sergei Dolgov!
We demand from the State of Ukraine to immediately return to the legal field and ensure compliance with the rules of the ECHR against Sergei Dolgov - journalist and editor.

matches:
Art. 3
Art. 5
Art. 6
Art. 7
Art. 9
Art. 10
Art. 13
Art. 14


CITY CENTER WEST, LP, a Colorado limited partnership, Plaintiff–Appellant, v. AMERICAN MODERN HOME INSURANCE COMPANY, an Ohio corporation, Defendant–Appellee.
Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges. Adam F. Aldrich (Kenneth R. Bennington with him on the briefs), Bennington Johnson Biermann & Craigmile, LLC, Denver, CO, for Plaintiff–Appellant. Christopher J. Shannon (Patrick Q. Hustead with him on the brief), The Hustead Law Firm, Denver, CO, for Defendant–Appellee.
A bank obtained insurance on a commercial property mortgaged to it by a borrower. The policy prohibited an assignment “of this Policy” without the insurer's consent. J.App. at 36. But after the property was damaged, the bank assigned its loss claim to the borrower. The insurer refused to pay the borrower's claim because of the nonassignment provision, and the borrower sued. The district court held that the suit was barred and awarded judgment for the insurer. On appeal the parties primarily argue about whether a provision prohibiting assignment of postloss claims is enforceable. In our view, however, the provision here does not apply to the assignment of a postloss claim, so we do not need to determine the enforceability of a provision prohibiting such assignments. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further proceedings.
City Center West LP (City Center), a Colorado limited partnership, owned a commercial property in Greeley, Colorado, subject to a mortgage held by Summit Bank & Trust (Summit Bank). When Summit Bank learned that City Center had failed to insure the property, the bank's parent company, Heartland Financial USA, Inc. (Heartland Financial), obtained coverage for the property through its blanket insurance policy (the Policy) with American Modern Home Insurance Company (American Modern), an Ohio corporation. The Policy identified Heartland Financial and its branches, including Summit Bank, as the “Named Insured Mortgagee.” J.App. at 56. It provided that losses be paid to the Named Insured Mortgagee to the extent of its interest and that any benefits payable in excess of that interest “shall be paid to the mortgagor” (which was City Center). Id. at 30. Liability was limited to the interest in the property of the mortgagee and the mortgagor. The Policy was excess insurance-that is, it paid out only if there was no other insurance policy that would cover the claim. It included a nonassignment provision that stated: “Assignment of this Policy shall not be valid unless we [American Modern] give our written consent.” Id. at 36.
On September 23, 2011, the property was damaged by vandalism and a burglary. City Center estimated that the cost of repair would exceed $3.5 million. On October 10, City Center notified American Modern of the loss; and four months later it requested payment. American Modern refused to pay the amount requested, but tendered a $321,069 check to Summit Bank. (The record does not indicate the rationale for that amount.) On May 7, 2012, Heartland Financial and Summit Bank assigned to City Center all their rights with respect to the claim. American Modern never consented to the assignment. On May 25, City Center filed its complaint against American Modern in the United States District Court for the District of Colorado. It asserted claims for bad-faith breach of insurance contract, breach of contract, and violations of Colorado insurance statutes. American Modern filed a motion to dismiss on the grounds that the assignment to City Center was prohibited by the Policy's nonassignment provision and City Center was not a third-party beneficiary. The district court granted the motion.
We review de novo a district court's dismissal of a complaint under Fed.R.Civ.P. 12(b)(6). See Jordan–Arapahoe, LLP v. Bd. of Cnty. Comm'rs, 633 F.3d 1022, 1025 (10th Cir.2011). The parties agree that Colorado law applies to the interpretation of the insurance contract in this diversity case. In Colorado an insurance policy's terms are construed “according to principles of contract interpretation.” Thompson v. Md. Cas. Co., 84 P.3d 496, 501 (Colo.2004). The terms in the policy “should be assigned their plain and ordinary meaning” so that we “give effect to the intent and reasonable expectations of the parties.” Id. A court should not employ “a strained construction” to change the effect of unambiguous language. Parrish Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049, 1055 (Colo.1994). “[A]mbiguous terms,” however, “are construed against the insurer.” Thompson, 84 P.3d at 502.
The issue before us is whether the Policy's restriction on assignment of “this Policy” forbids the assignment of a postloss claim under the Policy. It is undisputed that the entire policy was not assigned to City Center. Perhaps the nonassignment provision could preclude assignments of divisible portions of the Policy-such as coverage with respect to one particular piece of property or one particular mortgagor; after all, the Policy was a blanket policy that substituted for individual policies for particular banks, particular mortgagors, and particular pieces of property. But that was not the type of assignment to City Center. The assignment was only the assignment of one claim for a specific piece of property. Any other claims regarding the property still belonged to Heartland Financial and Summit Bank.
Of particular importance, Colorado has recognized that there is a difference between an assignment of a contract and an assignment of a claim under a contract. Long ago, in Metropolitan Life Ins. Co. v. Lanigan, 74 Colo. 386, 222 P. 402, 403 (Colo.1924), the state supreme court held that the assignment of a claim for benefits under a life-insurance policy after the insured's death did not forfeit the coverage despite a prohibition on assignment of the policy.2 And more recently that court, in considering the validity of an assignment of payment owed under a contract, wrote, “Under the law of assignments, it is a well settled principle that the right to receive money due or to become due under an existing contract may be assigned even though the contract itself may not be assignable.” Farmers Acceptance Corp. v. DeLozier, 178 Colo. 291, 496 P.2d 1016, 1017 (Colo.1972); see Interbank Invs., LLC v. Vail Valley Consol. Water Dist ., 12 P.3d 1224, 1228 (Colo.App.2000) (following Farmers Acceptance). The distinction between assigning a contract and assigning a claim for money due under that contract has particular force in the insurance context. There is very good reason to forbid preloss assignment of a policy, because the insurer's risk can be greatly altered by a change in the insured. There is ordinarily no such change in risk once the loss has occurred. That context must be considered in interpreting the nonassignment clause.
Moreover, even if it were ambiguous whether the nonassignment provision precluded assignment of a postloss claim, “ambiguous terms in an insurance policy are construed against the insurer.” Thompson, 84 P.3d at 502. It is “incumbent on insurers to include clear and unambiguous language in their policies” if they intend to prohibit postloss assignments. In re Katrina Canal Breaches Litig., 63 So.3d at 963. American Modern's policy could have barred assignment of postloss claims by simply saying that such assignments were barred. Or, at least in Colorado, it could have used more general language. For example, the Colorado Supreme Court has held that a provision stating that “[i]nterest in this policy may not be assigned without our written consent” prohibited postloss assignment of a claim for medical care under a no-fault automobile policy. Parrish, 874 P.2d at 1051 (emphasis and internal quotation marks omitted). But American Modern did not use such language and we will not give the language it did use “a strained construction” to broaden its effect. Id. at 1055. We can leave for another day, and likely another court, whether a provision barring assignment of a postloss claim in commercial-property coverage is enforceable or contrary to Colorado public policy.
We REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
1. Couch on Insurance cites as contrary authority a case in which a court enforced a nonassignment provision against a postloss claim when the provision said, “any assignment of this policy or of any of the benefits thereunder shall be void and of no effect.” Tyler v. Nat'l Life & Accident Ins. Co., 48 Ga.App. 338, 172 S.E. 747 (Ga.Ct.App.1934) (emphasis added) (internal quotation marks omitted); see 3 Steven Plitt et al., Couch on Insurance § 35:8. The case is not truly contrary because the nonassignment provision included more than a general prohibition against assigning the policy; it explicitly prohibited assigning benefits under the policy.
2. The decision in Parrish did not overrule Lanigan in this respect. See Parrish, 874 P.2d at 1055 n. 8.