Around the Nation, May 2012

CLM's state chairs and committee members offer insights into their home-state happenings.

NEBRASKA

Your Employee’s Keeper

Adam Martensen was injured in the course of his job when his ATV rolled over in a pasture and pinned him down. He was discovered the next day but underwent an above-knee amputation as a result of his injuries. He filed suit against his employer, Rejda Bros., alleging that it was negligent and failed to make a timely effort to search for, discover, and rescue him. Rejda was found liable, and a jury awarded $750,000 in damages, plus taxable costs and prejudgment interest. On appeal, in Martensen v. Rejda Bros. 283 Neb. 279 No. S-11-010, the verdict was affirmed by the Nebraska Supreme Court citing that, in negligence cases, “an employer stands in special relationship with its employee who is in imminent danger or injured and thereby helpless, and such employer owes a duty of reasonable care with regard to risks that arise within the scope of the relationship.”-Nebraska State Lead Chair Stephen G. Olson, II

NEVADA

Clear Line Drawn in Joint vs. Several Liability Case

In Café Moda v. Palma, et al, 2012, Nev. Lexis 25, 128 Nev. Adv. Rep. 7 (2012), the Nevada Supreme Court considered whether Nevada’s comparative negligence statute (N.R.S. 41.141) permits liability to be apportioned between a negligent tortfeasor and an intentional tortfeasor. The case involved an incident occurring on Café Moda’s premises whereby Palma was stabbed repeatedly by another patron, Richards. Palma sued Richards pursuing an intentional-tort theory and Café Moda for negligence. While the court recognized that the jury found Palma not to be comparatively negligent, it reviewed the ambiguous language of the statute and ultimately determined that liability of a negligent tortfeasor is several from that of an intentional tortfeasor.-Nevada State Lead Chair Gina M. Mushmeche, Esq.

ARIZONA

The Cost of Ethical Failings, Abuse of Power Leads to Disbarment

In an unprecedented nine-week ethics hearing before a disciplinary panel convened by the Arizona Supreme Court, former Maricopa County Attorney Andrew Thomas was found to have committed ethical violations to such a degree as to warrant disbarment. The panel deemed the harsh punishment to be fitting as the former prosecutor pressed unwarranted criminal charges, obtained indictments, filed a federal racketeering lawsuit, and initiated investigations against political enemies from 2006 to 2010.

Mr. Thomas’s actions targeting the Board of Supervisors, judges, and others have reportedly already cost the county and its taxpayers approximately $10.6 million, largely in legal fees. Legal settlements with those targeted by Thomas could ultimately add millions to the staggering cost as several individuals, including retired judges and county officials, have filed notices of claim against the county following the panel’s ruling.-Arizona State Lead Chair William A. Nebeker

WISCONSIN

A Defendant by Any Other Name

The Wisconsin Supreme Court, now famous nationally for its alleged in-chambers choking incident between justices last June, affirmed reversal of a default judgment for a plaintiff who had erroneously named as defendant the parent company rather than its subsidiary in Johnson v. Cintas Corp. No. 2, 2012 WI 31 (March 27, 2012).

Johnson argued that the circuit court had personal jurisdiction over the subsidiary because it had been served with the complaint and, alternatively, that the pleadings should be construed as only technically defective because the subsidiary held itself out as its parent company. The majority rejected the misnomer claim, concluding such failure to name the subsidiary was a fundamental defect. It distinguished Johnson from precedent based on the fact that the named party was an existing, separate legal entity.-Wisconsin State Lead Chair Patrick D. McNally

LOUISIANA

Little Known Anti-Indemnity Law Considered Overreach

Although La. Rev. Stat. § 9:2780.1 (“9:2780.1”) became effective on Jan. 1, 2011, many litigation professionals, contractors, and even Louisiana practitioners are unaware of its existence. In sum, it is an anti-indemnity statute, which generally bans indemnity provisions contained in motor carrier transportation contracts and/or construction contracts wherein the indemnitor agrees to indemnify, defend, or hold harmless the indemnitee from liability resulting from the negligent or intentional acts or omissions of the indemnitee. The law states that any agreements contrary to it are null, void, and unenforceable. It also bans additional insured obligations. Not surprisingly, there is already litigation seeking to invalidate the statute.-Louisiana State Lead Chair Richard E. King

DELAWARE

Birth Defects Blamed on Monsanto and Big Tobacco

Argentine tobacco farmers are seeking damages from Monsanto and several tobacco firms for requiring the use of chemicals on tobacco leaves, including Roundup, which allegedly caused severe birth defects. Several law firms joined forces with an Argentine law firm and filed suit with the Superior Court of Delaware on behalf of more than 100 tobacco farmers who allege they were required by their contracts to use herbicides and pesticides, some made by Monsanto, according to the tobacco companies’ guidelines. The claims include negligence, strict liability, failure to warn, collusion for a common scheme, and willful and wanton conduct.-Delaware State Lead Chair Paul A. Bradley

OHIO

Advanced-Practice Nurses Win Broader Prescribing Authority

Ohio Governor John Kasich signed a new bill into law (SB 83) that broadens the ability of advanced-practice nurses (APNs)—including nurse practitioners, clinical nurse specialists, and certified nurse midwives—to prescribe Schedule II controlled substances beyond a 24-hour supply. Previously, APNs could prescribe only a 24-hour supply for terminally ill patients with existing prescriptions. Schedule II drugs, such as morphine and oxycodone, have a high potential for abuse and are closely monitored by the Drug Enforcement Agency. SB 83 requires APNs to complete six additional hours of continuing education and goes into effect on June 8, 2012. Currently, 33 states have similar laws in place.-Ohio Publications Committee Chair Jonathan P. Saxton and committee member Sarah Lovequist

TENNESSEE

Policy Dispute Favors Insured

In Allstate v. Tarrant, the insured owned a number of vehicles covered under commercial and personal policies. Tarrant was involved in a serious accident involving a commercial-use van and motorcycle. Prior to the accident, the insured’s agent changed the van from the commercial policy to the personal policy, which had lower limits. The insured denied making the request and sought coverage under their commercial policy. The insurer brought a declaratory judgment action to determine the applicable policy. The Tennessee Supreme Court held that pursuant to statutory law, the agent is the representative of the insurer and not the insured. Therefore, the insured cannot ratify the acts of the agent. An insurer is estopped from denying policy liability on a matter arising from an agent’s mistake. The court affirmed the trial court decision in favor of the insured.-Tennessee State Lead Chair James Wright