Albany Insurance Company v. Rose-Tillmann, Inc.
Guy C. Stephenson, Schwabe Williamson Wyatt, Portland, OR, for plaintiff.
Eric J. Neiman, Paul R. Duden, Tooze Shenker Duden Creamer Frank Hutchison, Portland, OR, for defendant Rose-Tillmann, Inc.
Christopher T. Carson, Kilmer Voorhees Laurick, P.C., Portland, OR, for third-party defendant BAT Ins. Service, Inc.
This is an insurance coverage dispute. Ross Bros. Construction Inc. ("Ross Bros"), a construction contractor, brought this diversity action against its insurance agent, Rose-Tillmann, Inc. ("Rose-Tillmann"), and its insurer, Albany Insurance Company ("Albany"), after Albany denied Ross Bros' claim for loss sustained to a mobile crane in February 1994.
Rose-Tillmann, the agent, in turn, filed a third-party complaint against PWS Group Ltd. ("PWS Group"), PWS North America Ltd. ("PWS North"), and B.A.T. Insurance Services, Inc. ("BAT"), the other insurance agents and brokers allegedly involved in procuring the insurance policy at issue. Rose-Tillmann alleges four claims against the third-party defendants: estoppel, waiver, indemnity, and contribution.
Ross Bros has settled its claim against Albany, and Albany has been substituted as plaintiff in its capacity as the assignee of Ross Bros' claims against Rose-Tillmann. In effect, therefore, the insurer is suing the agent for the amount the insurer paid to Ross Bros, its own insured. Neither Ross Bros nor anyone else in Oregon has any interest in this litigation. Consequently, this legal battle is entirely between an Illinois insurance agency and foreign parties with no connection to Oregon.
The case is before me on PWS Group's and PWS North's motion to dismiss the thirdparty complaint (# 33), and BAT's motion for summary judgment (# 37). After considering the arguments of the parties and the evidence, both motions are GRANTED.
PWS Group and PWS North move to dismiss the third-party complaint for lack of personal jurisdiction in Oregon. The facts pertinent to their motion are as follows.
PWS Group is a holding company doing business in London, England. PWS Group does not act as an insurance broker. PWS North is an operating company that trades as an insurance broker. PWS North's shares are owned by PWS Group. Neither of the PWS defendants is or has ever been licensed to do business in Oregon, neither maintains offices or employees in Oregon, and neither owns property or pays taxes or fees in Oregon. Both PWS Group and PWS North deny ever doing business in Oregon.
The evidence shows that Rose-Tillmann, an Illinois corporation with its principal place of business in Illinois, acted as the retail broker in the insurance placement transaction. PWS North was the wholesale broker; BAT, a California corporation, was an underwriting agent; and Albany, a California company, was the insurer, providing insurance coverage for certain equipment owned by Ross Bros.
The evidence further shows that Rose-Tillmann contacted the PWS defendants in London by facsimile to request assistance in obtaining insurance coverage for Ross Bros. PWS North then contacted BAT in Los Angeles, California, which was a potential market for placement of the insurance. BAT, acting on behalf of Albany, agreed to accept certain coverage for Ross Bros. There is no evidence that PWS Group or PWS North had any contact with Ross Bros, the only Oregon party to the transaction. Indeed, the evidence demonstrates that the PWS defendants' communications concerning placement of the insurance were accomplished by telephone or facsimile between London and Illinois, where Rose-Tillmann is located, and London and California, where BAT is located.
The PWS defendants argue that under these facts, the exercise of personal jurisdiction over them in Oregon does not comport with due process requirements. Rose-Tillmann responds that jurisdiction in Oregon exists because (1) the PWS defendants agreed to obtain insurance for Ross Bros; (2) the crane that is the subject of the coverage dispute was located in Oregon at the time the insurance was issued; and (3) the loss occurred in Oregon.
The plaintiff bears the burden of establishing jurisdiction. Farmers Ins. Ex. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Where the court decides the jurisdictional issue based on affidavits and written discovery materials, the plaintiff "is only required to make a prima facie showing of jurisdictional facts in order to defeat a motion to dismiss." Farmers Ins. Ex., 907 F.2d at 912 (citation omitted); see also Judge William W. Schwarzer, Judge A. Wallace Tashima, James M. Wagstaffe, Federal Civil Procedure Before Trial ¶¶ 919:116-118, at 9-25 (1994) (herein, "Wagstaffe") ("[i]n this context, a "prima facie" showing means that plaintiff has produced admissible evidence which, if believed, would be sufficient to establish the existence of personal jurisdiction" (citation omitted; emphasis in original)).
To establish personal jurisdiction, the plaintiff must show both that the forum state's long-arm statute confers personal jurisdiction over the nonresident defendant and that the exercise of jurisdiction comports with federal due process. See, e.g., Gray Co. v. Firstenberg Machinery Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990); Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1477 (9th Cir. 1986). The Oregon longarm statute confers jurisdiction "to the extent permitted by due process." Gray Co., 913 F.2d at 760; see O.R.C.P. 4 L.
Due process requires that a defendant have a "minimum level of contacts with the forum before personal jurisdiction may be exercised." Farmers Ins. Ex., 907 F.2d at 913, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). If a nonresident defendant's activities in the forum state are substantial or continuous and systematic, the court may assert general jurisdiction over a claim, even if the claim is unrelated to the defendant's forum activities. Hirsch, 800 F.2d at 1477. If the defendant's contacts are neither substantial nor continuous and systematic, the court must determine if "specific" or "limited" jurisdiction exists. Farmers Ins. Ex., 907 F.2d at 913; Hirsch, 800 F.2d at 1477.
(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which [it] purposefully avails [it]self of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.
(2) the claim must be one which arises out of or results from the defendant's forumrelated activities.
(3) exercise of jurisdiction must be reasonable.
Hirsch, 800 F.2d at 1477; Farmers Ins. Ex., 907 F.2d at 913; see generally Wagstaffe, ¶¶ 3:116-119.
The focus in due process analysis is on the defendant's relationship to the forum and to the litigation. Hirsch, 800 F.2d at 1478. "Purposeful availment" analysis thus turns on whether the defendant's contacts are attributable to the defendant's own actions and not to the unilateral actions of some other party. Hirsch, 800 F.2d at 1478, citing Burger King Corporation v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). In Hirsch, the court explained that the purposeful availment prong is satisfied "when a defendant takes deliberate actions within the forum state or creates continuing obligations to forum residents." 800 F.2d at 1478. It is not necessary that the defendant be physically present within or have physical contact with the forum, provided the defendant's efforts are "purposefully directed" toward forum residents. Hirsch, 800 F.2d at 1478 (citations omitted).
The evidence shows that PWS Group is a holding company that does not operate as an insurance broker. Rose-Tillmann has presented no evidence that PWS Group participated in the insurance placement transaction. Thus, there is no basis for finding that PWS Group "purposefully availed" itself of the privilege of conducting activities in Oregon. That Rose-Tillmann may not have known that PWS Group and PWS North were separate entities until after commencement of this litigation does not create a basis for personal jurisdiction where none otherwise exists. Accordingly, Rose-Tillmann's claim against PWS Group is DISMISSED.
Moreover, I conclude that PWS North lacks the minimum contacts with Oregon necessary to sustain personal jurisdiction. PWS North is a wholesale insurance broker, not an insurer. That fact distinguishes this case from Hirsch, on which Rose-Tillmann relies. In Hirsch, the Ninth Circuit concluded that California had personal jurisdiction over a foreign insurer because through its own deliberate action in agreeing to provide insurance coverage, the insurer had created a continuing obligation to forum residents and a substantial connection to California. Hirsch, 800 F.2d at 1479-80. As the PWS defendants correctly point out, the facts essential to the decision in Hirsch do not exist in this case.
Rose-Tillmann also relies on Waukesha Cutting Tools v. N.J. Life Ins. Co., 563 F. Supp. 614 (E.D.Wis. 1983). In that case, Waukesha Cutting Tools, a Wisconsin corporation, through its Wisconsin agent, KTM Associates, sought to purchase life insurance on a key employee. KTM approached Stamm Agency, a Florida insurance broker, to explore the available options for placing the insurance and to obtain competitive quotations. In turn, Stamm approached New Jersey Life Insurance Company ("NJL"), requesting a tentative offer. In the ensuing negotiations, Stamm acted as the "conduit through which was funneled information and documents between NJL and Waukesha's Milwaukee agent, KTM." 563 F. Supp. at 620.
"Stamm invaded the markets of Wisconsin to conduct its business and that Stamm's penetration of the forum state for economic advantage, even absent solicitation activities, subjects it to the jurisdiction of Wisconsin's courts in the circumstances of this case." 563 F. Supp. at 621.
Despite some similarity between the circumstances in Waukesha and those presented here, there is a critical difference. In Waukesha, the evidence showed that Stamm dealt directly with the parties in Wisconsin, the forum state. In this case, PWS North dealt only with Rose-Tillmann in Illinois and BAT in California, and had no contact with Oregon whatsoever.
I conclude that PWS North did not "purposefully avail" itself of the privilege of conducting business in Oregon and does not have the minimum contacts with Oregon necessary to sustain personal jurisdiction. See Gray Co., supra, 913 F.2d at 760-61. Accordingly, Rose-Tillmann's third-party complaint against PWS North is DISMISSED.
II. BAT'S MOTION FOR SUMMARY JUDGMENT BAT moves for summary judgment on each of Rose-Tillmann's third-party claims. The undisputed facts pertinent to BAT's motion are as follows.
In mid-November 1993, Rose-Tillmann sent an application for insurance coverage for Ross Bros to PWS. Among other things, the application specified "automatic coverage for newly acquired property" in the sum of $250,000. The application included a schedule of equipment dated September 16, 1993. The crane at issue in this case, a 40-ton Grove RT-760, serial No. 46496, was not listed on the schedule. PWS sent the application, including the equipment schedule, to BAT on November 24, 1993.
For purposes of BAT's motion, "PWS" refers to the PWS defendants together.
On approximately the same date, November 24, 1993, Ross Bros sent a letter to Rose-Tillmann requesting that the crane, which Ross Bros had just purchased, and several other pieces of equipment be added to the insurance schedule. On December 6, 1993, Rose-Tillmann issued a certificate of insurance for the crane to the loss payee. Rose-Tillmann asserts that its regular business practice would have been to forward a copy of the certificate to PWS, the "upstream broker." There is no evidence that PWS forwarded a copy of the certificate to BAT.
Between December 13 and December 21, 1993, PWS informed Rose-Tillmann that coverage could only be bound effective December 22, 1993. On December 22, 1993, PWS sent a letter by facsimile to BAT, enclosing instructions from Rose-Tillmann to "[p]lease bind Ross Bros. at your quoted premium." On the same day, BAT asked GRE Insurance Group to bind the account.
Albany is part of the GRE Insurance Group.
On February 16, 1994, the crane was damaged. Shortly after, BAT learned that in November 1993, Ross Bros had asked Rose-Tillmann to add the crane to the equipment schedule. Rose-Tillmann had not, however, forwarded Ross Bros' November 1993, letter to PWS until February 2, 1994. PWS apparently responded by asking Rose-Tillmann for more information. There is no evidence that Rose-Tillmann provided the requested information or that Ross Bros' letter was ever forwarded to BAT.
Albany denied coverage for the crane because it was not on the equipment schedule, had not been added to the schedule by endorsement, and was not covered under the acquisitions clause because it was purchased before the effective date of the policy.
Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond "the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catreti, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989).
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party. Id. at 631. Inferences drawn from facts are viewed in the light most favorable to the non-moving party. Id. at 630-31.
The parties agree that to prove estoppel, Rose-Tillmann must establish that BAT or someone acting on BAT's behalf made a representation that was inconsistent with the express terms of the insurance policy, and that Rose-Tillmann reasonably relied upon the representation. See Kabban v. Mackin, 104 Or. App. 422, 426-27, 801 P.2d 883 (1990).
BAT asserts that the estoppel claim must fail as a matter of law because Rose-Tillmann cannot prove any representations or conduct by BAT regarding coverage of the crane or any reliance by Rose-Tillmann. BAT points to the undisputed fact that BAT was unaware that Ross Bros owned the crane or wanted to insure it, and asserts that BAT made no representations concerning the crane to anyone.
Rose-Tillmann argues that PWS and BAT "acted as agents of one another." Rose-Tillmann then postulates that PWS' knowledge of the crane and alleged representations concerning insurance coverage for it can be attributed to BAT. The problem with that argument is that Rose-Tillmann has offered no evidence to substantiate the alleged agency relationship between PWS and BAT, and the, record does not permit an inference of an agency relationship between them. See T.W Elec. Service, 809 F.2d at 631 (inferences may be drawn only from underlying facts). Thus, PWS' knowledge and representations, if any, concerning the crane cannot be attributed to BAT.
Rose-Tillmann also argues that BAT was somehow responsible for Rose-Tillmann's misunderstanding of the acquisitions clause in the insurance policy, because BAT allegedly procured a policy that "differed from the specifications in the application Rose-Tillmann submitted * * *" The application, however, specifies only "automatic coverage for newly acquired property."
Although the policy as issued provides automatic coverage, Rose-Tillmann contends that it expected that coverage to apply to equipment Ross Bros acquired after the date of the equipment schedule and before issuance of the policy. BAT responds that there is no evidence that Rose-Tillmann's understanding or expectation was based on any representation or conduct by BAT. I agree.
The record contains no evidence that BAT made any representations to Rose-Tilimann concerning the terms of the policy. Whatever Rose-Tilimann's expectations concerning the applicability of the acquisitions clause to property acquired by Ross Bros before the effective date of the policy might have been, the undisputed evidence shows that those expectations were not based on any representations or conduct by BAT. Accordingly, BAT is entitled to summary judgment on the estoppel claim.
Rose-Tillmann's waiver claim alleges only that BAT and the other third-party defendants "have waived any right to deny that said crane is insured * * "2 Waiver, of course, is the intentional relinquishment of a known right. See Kabban, 104 Or.App. at 429-30, 801 P.2d 883.
Based on the undisputed evidence that BAT did not know of the crane or that Ross Bros sought coverage for it, BAT argues that Rose-Tillmann cannot prove that BAT intentionally relinquished a known right. Rose-Tillmann neither has responded to BAT's argument nor designated specific facts in support of the waiver claim. Accordingly, summary judgment in favor of BAT on Rose-Tillmann's waiver claim is granted.
A party seeking indemnity must plead and prove (1) that the party seeking indemnity has discharged a legal obligation owed to a third party; (2) that the party from whom indemnity is sought also is liable to the third party; and (3) that as between the two, the latter ought to discharge the obligation. See Scott v. Francis, 314 Or. 329, 332-33, 838 P.2d 596 (1992) (citation omitted).
BAT correctly points out that Rose-Tillmann has failed to allege the elements of an indemnity claim. In addition, BAT argues that Rose-Tillmann's indemnity claim fails as a matter of law because (1) Rose-Tillmann cannot prove that BAT also is liable to Ross Bros; and (2) Rose-Tillmann's conduct was active while BAT's conduct, if any, was passive.
It is undisputed that Ross Bros asked Rose-Tillmann to add the crane to the schedule of equipment in November 1993, and that Rose-Tillmann did not forward that request to PWS until February 2, 1993. Although it may be inferred from the evidence that Rose-Tillmann informed PWS of Ross Bros' purchase of the crane in December 1993, it is also undisputed that neither PWS nor Rose-Tillmann notified BAT of the existence of the crane before it was damaged. On this evidence, Rose-Tillmann cannot establish that its fault was merely "secondary" or "passive" and that BAT's fault was "active" or "primary," and that as between the two, BAT should bear responsibility for the loss. See Scott, 314 Or. at 333, 838 P.2d 596, quoting Fulton Ins. v. White Motor Corp., 261 Or. 206, 210, 493 P.2d 138 (1972). Rose-Tillmann, after all, was Ross Bros' insurance agent. See Joseph Forest Products v. Pratt, 278 Or. 477, 480-81, 564 P.2d 1027 (1977) (insurance agent who agrees to procure insurance for another but fails to do so may be held liable based upon breach of contract or negligence). I conclude that BAT is entitled to summary judgment on Rose-Tillmann's claim for indemnity.
Focusing on the emphasized sentence, BAT argues that it cannot be liable in tort to Ross Bros, both because there is no discrepancy between Ross Bros' application and the policy, and because as a matter of law, BAT had no duty to ensure that Ross Bros understood the terms of the policy. See Trans-World-Marine, Inc. v. Bonifard Agency, 885 F.2d 332, 335 (6th Cir. 1989) (insurance broker's only duty was to comply with insured's agent's instructions; broker owed no duty to insured to ensure that it understood the terms of the policy).
Under Oregon law, an insurance agent or broker who agrees to procure insurance for another for a fee "owes a duty to exercise reasonable skill and care in obtaining that insurance." Kabban, 104 Or.App. at 432, 801 P.2d 883, citing Joseph Forest Products, 278 Or. at 480-81, 564 P.2d 1027. Liability for failing to procure the promised insurance may be based upon a breach of contract or negligence or both. Joseph Forest Products, 278 Or. at 480, 564 P.2d 1027. Under certain circumstances, an agent may also have a duty to advise the prospective insured regarding different policies or coverages. Kabban, 104 Or.App. at 432-33, 564 P.2d 1027.
"If a broker or agent of the insured neglects to procure insurance, or does not follow instructions, or if the policy is void or materially defective, through the agent's fault, he is liable to his principal for any loss he may have sustained thereby." 278 Or. at 480-81, 564 P.2d 1027, quoting 16 Appleman, Insurance Law and Practice § 8841, at 510-514 (1968) (emphasis added; original emphasis deleted).
In this case, there is no. evidence that BAT was acting as Ross Bros' agent in the transaction, nor do the pleadings allege an agency relationship between them. It is possible that BAT acted merely a conduit and not as an agent for any party. Moreover, if BAT did act as an agent for any party to the transaction, it was most likely the insurer, not the insured. Cf O.R.S. 744.165(1) (insurance agent deemed to be agent of the insurer in most circumstances).
Ross Bros has not asserted any claim against BAT and has not alleged that BAT acted as its agent in the transaction.
I conclude that in the absence of allegations and proof of an agency or other special relationship between BAT and Ross Bros, BAT owed no duty to Ross Bros. Consequently, there is no basis on which BAT could be held liable in tort to Ross Bros as a joint tortfeasor. BAT is, therefore, entitled to summary judgment on Rose-Tillmann's claim for contribution.
PWS Group Ltd.'s and PWS North America Ltd.'s motion to dismiss (#33) is GRANTED. Because this Court lacks personal jurisdiction over the PWS defendants, they are dismissed for all purposes from this lawsuit. B.A.T. Insurance Services, Inc.'s motion for summary judgment (#37) is GRANTED. Because these rulings dispense with all claims alleged in the third-party complaint, the third-party complaint is DISMISSED.


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On 6 March 2018, the Court of Justice of the European Union issued a long-awaited decision on a preliminary ruling from Germany’s Federal Court of Justice in the Slovak Republic v Achmea case (available here and already addressed in a different KluwerBlog entry here) [Case C-284/16]. By concluding that the arbitration clause in the Slovakia-Netherlands bilateral investment treaty (BIT) applicable in arbitration between Achmea and Slovakia had an adverse effect on the autonomy of EU law and declaring that it was incompatible with EU law, the CJEU has put an end to the controversy regarding the legality of intra-EU BITs. This question has been haunting legal professionals and academics at least since 2007, when the Tribunal in Eastern Sugar v Czech Republic handed down its decision refusing to accept the Respondent’s argument that the application of the BIT was limited because it had been superseded by EU law since the Czech Republic’s accession to the European Union [Eastern Sugar v Czech Republic, SCC. Case No. 088/2004]. It has gained even more prominence in recent years in the context of the CETA and the debate on the establishment of a (European) multilateral investment Court. Consequently, the CJEU issued a clear signal as to where the intra-EU investment arbitration might be heading.
The dispute between Achmea and Slovakia arose out of the measures adopted by the Slovak Government in 2006 that reversed the previous liberalisation of the Slovak health insurance market. Slovakia underwent reforms of its health system in 2004 opening the market to private sickness insurance providers. Following this, Achmea set up a wholly owned subsidiary in Slovakia offering private sickness insurance services. In 2006, Slovakia stepped back from its policy and prevented private health insurers from distributing profits to shareholders. Achmea challenged this change and commenced arbitration proceeding against Slovakia before the PCA in October 2008, according to the UNCITRAL Rules [Achmea v Slovakia (I), PCA Case No. 2008-13]. By the arbitral award of 7 December 2012, the Tribunal composed of Professors Vaughan Lowe, Albert Jan van den Berg and V. V. Veeder found for Achmea and ordered Slovakia to pay EUR 22.1 million worth of damages. Interestingly, this is the only case in which the investor was successful in challenging Slovakia’s changes to its health system reforms. Coupled with the subsequent plans to establish a single health insurance company, the deliberalisation of the health insurance market gave rise to three other investment arbitrations, all of which failed on jurisdictional grounds (see ad hoc arbitrations initiated by HICEE, EURAM Bank and Achmea II, all heard by the PCA).
Slovakia challenged the Tribunal’s decision and submitted an application to set aside the award to the Higher Regional Court in Frankfurt am Main on 31 January 2013. After the Court rejected its application, Slovakia appealed on a point of law to the Federal Court of Justice in Germany. Slovakia took the view that the tribunal lacked jurisdiction because the Slovakia-Netherlands BIT was contrary to several provisions of the Treaty on the Functioning of the European Union (TFEU), which in the event of conflict should take precedence over the BIT. The Federal Court of Justice accepted the appeal and referred the question of compatibility of the contested BIT with the TFEU to the CJEU.
First, the CJEU noted that the disputes leading to the constitution of arbitral tribunal in accordance with Article 8 of the BIT may relate to the interpretation or application of EU law by that tribunal. Still, an arbitral tribunal could not be classified as “a court” or “tribunal” of a Member State within the meaning of Article 267 TFEU (in this case, the Tribunal was neither a court of Slovakia nor one of Netherlands), which meant that it had no power to make a reference to the Court of Justice for a preliminary ruling. This has important consequences as under the BIT, the tribunal’s decision is final. While it is possible to conduct a judicial review of the validity of the award, this has to be carried out in accordance with the law of the seat of arbitration, which is subject to the tribunal’s choice. More importantly, such judicial review can be exercised by the national court only to the extent that the respective national law permits. In this sense, the limited ground for review of awards issued in commercial arbitration is not suitable for arbitration proceedings like the present case, that derived from a treaty by which the Member States effectively displaced the jurisdiction of their own courts, which (by implication) could lead to limiting the application or interpretation of the EU law.
The CJEU concluded that the mechanism for settling disputes established by the BIT failed to ensure that those disputes would be decided by a court within the judicial system of the EU. The arbitration clause in the BIT had an adverse effect on the autonomy of EU law and was, therefore, incompatible with EU law.
We will have to wait and see what the German Federal Court makes from the CJEU’s decision, but it is likely that it will end up setting aside the Award. This puts an end to a long-going saga of arbitrations Slovakia was facing following its deliberalisation of health insurance market. And while arbitrations in HICEE v Slovakia and Achmea v Slovakia II were dismissed on different procedural grounds, the Tribunal in the 2012 decision EURAM Bank v Slovakia have already had an opportunity to deal with the issue of the conflicting application of the BIT (in this case, Austria-Slovakia BIT) and one of the European Treaties, specifically the Treaty Establishing the European Economic Community (ECT) and the subsequent treaties [EURAM Bank v Slovakia, PCA Case No. 2010-17].
The Tribunal adopted a different approach to the CJEU and analysed the conflict between the different instruments in light of Article 59 Vienna Convention on the Law of Treaties (VCLT). By considering the two-step inquiry under Article 59 of the VCLT, the Tribunal rejected Slovakia’s arguments because the BIT in question and the ECT did not have the same subject-matter. The Tribunal even relied on the reasoning in Achmea (I) that had come to a similar conclusion (and was the subject of the CJEU’s decision)! The EURAM Bank Tribunal then added that even if it had reached a different conclusion on the subject-matter point, it would nevertheless have found that the other requirements of Article 59 were not met.
Significantly, the question regarding the conflicting application of the intra-EU BITs and the European Treaties is not exclusive to Slovakia’s health insurance controversy. As mentioned above, it has been raised (and dismissed) in Eastern Sugar but also in a more recent ICSID arbitration Micula v Romania [Micula v Romania (I), ICSID Case No. ARB/05/20]. This case is an extreme illustration of the clash between the “traditional” investment regime and the obligations imposed under the European law. Indeed, it led to an extreme result, whereby the Tribunal held that Romania’s revocation of tax incentives and benefits targeting foreign investment in disfavoured regions breached the BIT, while at the same time, those very incentives were held contrary to the EU State Aid Rules. Furthermore, once the Award has been issued, the European Commission prohibited Romania from complying with it. In fact, Romania sought to have this award annulled and the European Commission appeared as an amicus curiae. Despite this, the Final Award was upheld by the ad hoc Committee [See Decision on Annulment dated 26 February 2016]. But, significantly for our purpose, the European Commission invoked Article 59 of the VCLT and argued that the Award should be annulled because the Tribunal had lacked jurisdiction as the EU Treaties superseded the Sweden-Romania BIT as a result of Romania’s accession to the EU. The Committee rejected this argument albeit it failed to give any reasons for this conclusion.
It is no accident that all arbitrations that dealt with the validity of intra-EU BITs were brought against the new Members of the EU. After the fall of the communism, these countries were a target of the 1990s “BITs Baby Boom”. More often than not, BITs concluded during this period imposed extensive obligations on the Parties, which remain burdensome despite the fact that many of these countries are full Members of the EU. Read in this context, the CJEU’s decision represents a welcome development of the (European) investment regime. By protecting the autonomy of the EU law, it will provide more legal certainty in future disputes in which conflicting grounds for jurisdiction exist under both the intra-EU BITs and the EU laws.

matches: CJEU CJEU V. CJEU CJEU CJEU


JOHNSON & JOHNSON, et al., Defendants.
Da'Rius Oliver Harden, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.
Plaintiff Da'Rius Oliver Harden, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. (D.I. 3). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 6). Upon screening, the Court dismissed the original complaint and gave Plaintiff leave to file an amended complaint. (D.I. 9). The amended complaint was filed on December 4, 2017. (D.I. 12). The Court proceeds to review and screen the amended complaint f pursuant to 28 U.S.C. § 1915(e)(2).
In 1997, when Plaintiff was 10 years, he was diagnosed with ADD (attention- deficit disorder) and prescribed Risperdal by Defendant Dr. Khan. Plaintiff took the medication from 1997 to 2004, at his home, schools, Delaware Guidance, the Terry Center, the Rockford Center, and at the New Castle County Detention Center. Plaintiff alleges that Risperdal caused him to develop gynecomastia. He alleges that he has (been living with the condition since 1997. (D.I. 12 at 1).
Plaintiff alleges that Dr. Khan prescribed him medication that was not tested or approved by the FDA to treat ADD. Plaintiff alleges that Defendants Johnson & Johnson and Janssen Pharmaceutical manufacture Risperdal and hid the side effects of Risperdal from the public. He seeks compensatory damages for pain and suffering and future corrective surgery for gynecomastia.
A federal court may properly dismiss an action sua sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) if "the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). See also 28 U.S.C. § 1915(e)(2) (in forma pauperis actions). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds pro se, his pleading is liberally construed and his amended complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §1915, the Court must grant Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, __ U.S. __, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See Id. at 346.
A court reviewing the sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Elements are sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.


If trial by jury is waived, the case cannot be reported by the Superior Court to this court under the Gen. Sts. c. 115, § 6, or the St. of 1869, c. 438.
An order, that an indictment be laid on file, is not equivalent to a final judgment, or to a nolle prosequi, or discontinuance.
An order laying an indictment on file, on the payment of costs, does not entitle the defendant to be finally discharged.
When an indictment is laid on file, and the judge making the order indorses thereon that a certain statute has been repealed, and it appears that the case is not brought under said statute, the indictment may be brought forward and proceedings had upon it.
On an indictment for an assault and battery, an acknowledgment of satisfaction by the party injured does not entitle the defendant to be discharged under the Gen. Sts. c. 171, § 28.
When an indictment has been laid on file, the Superior Court has authority to take up the case and order a new recognizance.
When a defendant is called and does not appear, the court is not required to decide in his absence a motion in arrest of judgment.
A default of a defendant is a breach of a recognizance given by him, and fixes the liability of his bail.
The original action in which the first recognizance was given, was a complaint against John Dowdican, for maintaining a liquor nuisance. In this case, the following order was made April 24, 1868: "Chapter 86 of General Statutes having been repealed, this case is now laid on file." The case was accordingly laid on file at that date without costs. The complaint in this case was not under the Gen. Sts. c. 86, but under c. 87, which has never been repealed.
The original action in which the second recognizance was given, was an indictment against said Dowdican, for being a common seller of intoxicating liquor. This case was laid on file June 5, 1867, and the costs were paid.
nuisance. This also was laid on file June 5, 1867, and the costs were paid.
In the orders laying the second and third cases on file, Vose, J., certified that he was satisfied of the truth of the defendant's affidavit, that the times covered by the indictments in said third and fourth cases had been also covered by another indictment on which the defendant had been found guilty and sentenced.
The proceeding in which the fourth recognizance was given, was an indictment for assault and battery. In April, 1868, the party injured filed an acknowledgment of satisfaction for all damages, and the costs were paid January 20, 1869; and in March, 1869, the case was laid on file.
An indictment was found at January term, 1873, against said Dowdican, for unlawfully receiving stolen goods, upon which he was found guilty.
At April term, 1873, each of the first four cases was brought forward by order of the court on motion of the district attorney, and the defendant ordered to enter into a recognizance, and failing to do so was committed.
On May 12, 1873, Dowdican, and the said Peterson and Child, appeared in the Superior Court, and recognized in each of said four suits, the former as principal, and the two latter as sureties. It further appeared that at April term, 1873, Dowdican's attorney had filed a motion in arrest of judgment, which had not been passed upon, and that on May 28, 1873, said attorney being in court, demanded a decision upon said motion, but none was given. The district attorney thereupon requested the presence of the defendant in court for the purpose of moving for sentence; and the defendant was ordered to be called, and not appearing was defaulted.
On these facts the presiding judge, at the request of the parties, reported the case to this court.
G. W. Searle, for the defendants.
When the case is submitted to the Superior Court on a waiver of a jury trial, on the award of an arbitrator, or on an agreed statement of facts, that court is required to hear and determine it; and the jurisdiction of this court is purely appellate, after a decision below, and not advisory, by way of instructions to that court in advance how to perform the duty which the law has imposed upon it. Gen. Sts. c. 114, § 10; c. 115, §§ 6, 7. St. 1869, c. 438. Lincoln v. Parsons, 1 Allen 388 . Bearce v. Bowker, ante, 129. Hogan v. Ward, ante, 130 note.
In some cases in the books, this rule, not having been insisted on by either party, has been overlooked by the court. But the number of cases irregularly transmitted to this court without any decision below has lately increased so much, to the serious embarrassment of the performance of the appropriate duties of this court as a court of error, as to demand a strict and vigilant adherence to the statutes by which the jurisdiction of both courts is defined.
The case being submitted to the Superior Court on the above facts, Putnam, J., ordered judgment for the Commonwealth, and the defendants appealed.
G. W. Searle, for the defendants, contended that the effect of an order to lay an indictment on file was the same as a sentence, final judgment, or nolle prosequi; that the circumstances that the orders, laying the three last indictment on file, also ordered the payment of costs, necessarily ended the case; and that under the Gen. Sts. c. 171, § 28, where the party injured filed an acknowledgment of satisfaction, an order that upon payment of costs the indictment be laid on file, was equivalent to an order that all further proceedings be stayed, and the defendant discharged from the indictment; that the entry by the judge, "Chapter 86 of General Statutes having been repealed, this case is now laid on file," was conclusive on the Commonwealth as to the case having been brought under said chapter, and that the certificate of Vose, J., was a finding, that the prisoner had already suffered sentence for the same offences charged in said second and third indictments, and that the order to lay on file was a final order and decree which could not be altered after the end of the term in which it was made; and to this last point cited Commonwealth v.
Weymouth, 2 Allen 144 ; Jobe v. The State, 28 Ga. 235; Van Dyke v. The State, 22 Ala. 57; Brush v. Robbins, 3 McLean 486 Rex v. Fletcher, Russ. & Ry. 58; The People v. Duffy, 5 Barb. 205; Rex v. Hunter, 1 Wils. 163.
C. R. Train, Attorney General, (W. G. Colburn, Assistant Attorney General, with him,) for the Commonwealth.
GRAY, C.J. It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file; and this practice has been recognized by statute. Sts. 1865, c. 223; 1869, c. 415, § 60. Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court; but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward and pass any lawful order or judgment therein. Neither the order laying the indictment on file, nor the payment of costs, therefore, in any of the four cases, entitled the defendant to be finally discharged.
The erroneous reason assigned for that order in the first case had no greater effect. The indictment was founded on c. 87 of the Gen. Sts., which has never been repealed. Commonwealth v. Carpenter, 100 Mass. 204 . Commonwealth v. Bennett, 108 Mass. 30 .
In the case of the indictment for an assault, the acknowledgment of satisfaction by the party injured did not entitle the defendant to be discharged. The provision of the Gen. Sts. c. 171, § 28, is that "the court may, on payment of the costs accrued, order all further proceedings to be stayed, and discharge the defendant from the indictment." It is within the discretion of the court, and not within the power of any private person, to determine whether it is consistent with the ends of justice to suspend or terminate the prosecution.
All the cases being still pending, the Superior Court was authorized to bring them forward and order new recognizances. The new recognizances were therefore lawfully taken. Bassett v. United States, 9 Wall. 38.
The principal defendant not having appeared when called in each case, but having been defaulted, the court was not required to decide in his absence the questions raised by the motions in arrest of judgment. Commonwealth v. Andrews, 97 Mass. 543 . Anon. 31 Me. 591. The default was a breach of the recognizances, and fixed the liability of the bail.


In Mylan Institutional LLC v. Aurobindo Pharma Ltd., [2017-1645] (May 19, 2017), the Federal Circuit affirmed the grant of a preliminary injunction against the infringement of U.S. Patent 9,353,050 on a triarylmethane dye used to map lymph nodes.
The district court found that Aurobindo did not raise a substantial question of validity of the ’050 patent based on its arguments that the process patent is invalid under §112, §102, and §103. Regarding the §112 challenge, the Federal Circuit agreed that “by HPLC” was a common and well-understood way of designating or determining purity, as seen in “numerous sources,” including other patents and the scientific literature. Regarding the §103 challenge, the Federal Circuit agreed that it did not raise a substantial question regarding motivation to combine the references or a reasonable expectation of success. Regarding the §102 challenge, the Federal Circuit agreed that the conflicting evidence did not raise a substantial question as to the patent’s validity.
On the likelihood of success, the Federal Circuit noted the unusual nature of a preliminary injunction issuing in the case of infringement under the doctrine of equivalents. The Federal Circuit said that the law on the doctrine of equivalents as applied to chemical materials is not clear, and its misapplication can lead to unsound results. In particular the Federal Circuit noted that while the function/way/result test may be suitable for analyzing mechanical devices, it often provides a poor framework for analyzing other products or processes — particularly in the chemical arts.
In reviewing the district court’s equivalence analysis, the Federal Circuit found that either the court did not address the “way” prong of the function/way/result test, or it did so incorrectly. While the district court correctly found that manganese dioxide and silver oxide performed the same function, there is room for sufficient doubt as to whether silver oxide and manganese dioxide oxidize isoleuco acid in the same way so as to satisfy the “way” prong of the function/was/result test.
consider the well-known compounds aspirin and ibuprofen, which chemists would not usually consider to be structural equivalents under the insubstantial differences test. Chemical compounds are characterized by their structures, and these two compounds differ substantially in structure (see appendix). However, the two compounds would seem to be substantial equivalents under the FWR test. They each provide analgesia and anti-inflammatory activity (“function”) by inhibiting prostaglandin synthesis (“way”) in order to alleviate pain, reduce fevers, and lessen inflammation (“result”).
The Federal Circuit observed that a compound may appear to be equivalent under the function/way/result, but not under the substantiality of the differences test, and concluded that the substantial differences test may be more suitable than function/way/result for determining equivalence in the chemical arts.
Thus the Federal Circuit modified the preliminary injunction to eliminate the process patents as the basis for the preliminary injunction, but left the injunction intact as to the ‘050 product patent. The Federal Circuit found no error in the district court’s courts conclusion that there was no substantial question about the validity of the patent, and agreed with the district court’s finding of irreparable harm.


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Reasons for judgement were released today dealing with the issue of whether a defendant ordered to pay a plaintiff money for future wage loss as a result of a BC motor vehicle accident can deduct from such an award disability benefits the Plaintiff will receive from the Canada Pension Plan (CPP).
 On balance I conclude that I accept the expert evidence to the effect that it is more likely than not that there are persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition. The effects on Mr. Kean’s cognition are so subtle as to be virtually indistinguishable from the concurrent effects from the other operating causes, namely pain, pain medication, and depressed mood.
 Counsel for the defendant and the third party argued that CPP disability benefits received by Mr. Kean should be deducted from his award for past wage loss, and the present value of future CPP disability benefits should be deducted from his future income award. The thrust of their argument is that this is necessary to prevent double recovery. The defendant argues that CPP disability benefits are a form of mandatory social insurance that workers cannot negotiate out of, and the scheme is a form of income replacement.
 The defendant’s argument is essentially the same argument that these same counsel made unsuccessfully in the case of Maillet v. Rosenau 2006 BCSC 10. In Maillet, the plaintiff had received social assistance payments which were deducted from the past wage loss, but Powers J. did not accede to the defendant’s argument that future CPP disability benefits should be deducted from the award for losses of future earnings. As here, the defendants relied on the case of M.B v. British Columbia, 2003 SCC 53, suggesting that the rationale applied in that case to conclude that social assistance payments were deductible from a future wage loss award, was equally applicable to CPP disability benefits and that the decision represented a change in the law.
 In Maillet, Powers J. followed a line of authority which had held that the CPP disability pension scheme was essentially an insurance scheme and covered by the insurance exception to the rule against double recovery. This line of authority includes Canadian Pacific v. Gill, S.C.R. 654, Hayre v. Walz (1992), 67 B.C.L.R. (2d) 296 (BCCA) and Cugliari v. White, (1998) 159 D.L.R. 4th 254 (Ont.C.A.).
The first question is whether social assistance is a form of income replacement. If it is not, no duplication arises. If it is, the further question arises of whether social assistance can be excluded from the non-duplication rule under an existing or new exception.
It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this court carves out a new exception. Otherwise, retention of them would amount to double recovery.
 After holding that social assistance payments did not fit the charitable benefits exception (because the rationale for that exception did not concern the purpose of charitable donations, but its effect on the owners and the difficulties of valuation), the court discussed whether it should carve out a new policy- based exception. The court decided that it should not do so. Clearly there was no viable argument that the insurance exception might be applicable to social assistance and that was not considered.
 The defendant wishes to characterize the CPP disability payments as a form of social security because it is a legislative creature and contributions are mandatory. But, unlike social assistance, it is funded by contributions and only those who have contributed can benefit. There is an overlap of recovery, but that is inherent in the insurance exception to the rule against double recovery. The other side of the coin is that to deduct the CPP benefits from a tort award is to force the injured contributor to share the benefits of his contributions, (which represent deductions from his former earnings), with the tortfeasor.
….it has already been held by this court that CPP disability payments are not to be considered indemnity payments, and therefore that they are not to be deducted from tort damages compensating injuries that actually caused or contributed to the relevant disability. See Canadian Pacific Ltd. v. Gill; Cugliari, supra. This rule is passed on the contractual or contradictory nature of the CPP. Only contributors are eligible, at the outset received benefits, provided that they then meet the requisite further conditions.
The superannuation pension received by the respondent is of the same character as CPP disability benefits and other pension payments, which have consistently held to be non-deductible from tort damages.
 I conclude, as did the court in Maillet, that the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss.
NOTE – the reasoning of this case may not apply to all ICBC claims. For example in ICBC UMP Claims where ICBC is entitled to certain statutory deductions from the damages they need to pay to an insured.
This entry was posted on Friday, November 21st, 2008 at 2:06 pm	and is filed under Civil Procedure, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Wage Loss. You can skip to the end and leave a response. Pinging is currently not allowed.

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


36-6A-28. Unauthorized practice or representation as dentist or dental hygienist, radiographer, registered assistant, or specialist--Misdemeanor. Each person who practices as, attempts to practice as, or purports to be a dentist, dental hygienist, dental radiographer, or registered dental assistant in this state without being licensed or without being registered for that purpose or without being exempted from this chapter is guilty of a Class 1 misdemeanor.
Any dentist who implies, purports or leads a patient to believe that the dentist is a dental specialist without meeting the educational requirements set forth in this chapter, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 27.9918; SL 1977, ch 190, § 147; SL 1981, ch 275, § 12; SL 1984, ch 250, § 4; SL 1992, ch 269, § 22; SL 2015, ch 199, § 27.