May It Please The Court
Quote of the Day - Skiing: I do not participate in any sport with ambulances at the bottom of the hill.
Injured Skiers Don't Seem To Get The Message When They Sue Ski Resorts
It's time for MIPTC's annual roundup of the winter ski resort appellate opinions. It seems like every year, someone gets hurt on the ski slopes and then sues to recover for their injuries.
It's just that practically all of the courts routinely reject these claim because the skier "assumed the risk" of injury as soon as she stepped on the snow. It's really that simple. It's a somewhat dangerous sport, and you're likely to get hurt if you're not careful or well-trained. On the other hand, if you know what you're doing, it's one of the most enjoyable sports next to scuba diving. Where else can you be outside exercising in the mountains letting gravity do all the work and then get a hot toddy and a hot tub afterward? But to ski safely, there's a price.
Here's the part where I give my pitch to hire a ski instructor.
After all, I'm one myself - so says the Professional Ski Instructors Association - West. I even have a little pin to prove it. Seriously, though, it's well worth it. You and the ski instructor will be able to cut the long lift lines and get right to the top, you'll get personal instruction and you're less likely to get injured and your day on the slopes will be much more enjoyable.
Which is the whole point anyway. Unlike Karen Towns, who not only got injured skiing, but also didn't get anything when she sued.
Spin The Bottle For Insurance Deductibles
How does MTBE contamination in different geographical areas, different types of spills, different leaks in different plaintiffs all arise from one occurrence under an insurance policy?
When you're in the Third Circuit, and you're in the case of Sunoco Inc. and Sunoco Inc. v. Illinois National Insurance Co.
Let me offer a bit of an explanation. Sunoco had a $5 million self-insured retention under its insurance policy, and it was facing seventy-seven different lawsuits. That's $380 million of a total deductible, which is a lot, even for a big oil company. Practically speaking then, Sunoco would likely not have been able to undertake the cleanup of the contamination.
In fact, the combined deductible was greater than the $50 million policy written by Illinois National Insurance Company.
The court made this ruling, which binds only Sunoco and Illinois National, based on its logic that each of the 76* lawsuits allege the same cause of action. It went on, arguing that the suits essentially each claimed injuries from Sunoco's production of gasoline containing MTBE and the company's failure to warn users. The court finally determined that each plaintiff was exposed to the same general harmful condition (the MTBE additive), which and resulted in the same injury: contaminated groundwater.
The ruling, however, presents a two-edged sword. Absent some stroke of genius on the Third Circuit, there's also only one $50 million policy limit covering these 76 suits.
But stranger rulings have been issued before.
*Yes, careful readers will have caught what at first appears to be a typo: 77 vs. 76 lawsuits. The Third Circuit remanded the case to the District Court to deal with an issue not covered here. You'll have to read the decision to see what that issue is about - I covered a different topic in this post, one not readily apparent in the opinion, but nonetheless a consequence of it.
Swallowing Her Words Proved Difficult, If Not Nearly Deadly
Cell phones have been used for just about everything, but a murder weapon is a new twist. Melinda Abell got into an argument with her boyfriend, Marlon Brando Gill, over whether she's been talking to other men.
Gill got upset, and Abell alleges he shoved the cell phone down her throat. Gill denies the charges and claims Abell was trying to prevent him from finding out who she was talking to. Doctors removed the cell phone from Abell's throat.
Gill faces sentencing after his conviction by a jury.
Super Bowl HDTV Flunks The Pixelation Test
MIPTC had the opportunity to watch Super Bowl XLI on HDTV, as many did, but the HDTV signal from Cox Cable gets an "F" in my book. It seemed like every time there was a major play, the dreaded pixelation "stopped" the signal, and then when it caught up, the play was over. TIVO could do nothing to rescue the play.
Sure, the picture was sharp despite the rain on the cameras, but the interruption wasn't worth the the trade-off. We almost switched to the regular CBS channel, but tried to watch the entire game in HDTV.
To add insult to injury, everything associated with the system (television, cable box, HDTV signal and the receiver to process the audio and signal) is expensive.
If you're thinking about buying, you may want to wait until the technology catches up.
Not A Blip On The Tax Radar Screen - Tax Shelters Denied
Auditor KPMG's previous criminal vindication on tax shelters it sold suffered a setback in Texas civil court. Previously, as MIPTC reported, KPMG set aside a $46 million criminal fine over its Son of Boss tax shelter, also known as "Blips." But in Texas, Judge Ward essentially reversed himself and ruled the tax shelter was comprised of fake bank loans and therefore illegitimate, despite his previous ruling identified in the link above.
Apparently looking much closer at the aggressive tax shelters, Judge Ward ruled that Blips were not real investments and the related loans were not made and had no economic substance or genuine business purposes, all telltale signs for a tax shelter gone wrong. According to a New York Times article, the ruling likely exposes other entities who used the shelters, including NatWest, a British bank now owned by Royal Bank of Scotland. The investors in the tax shelters, Harold W. Nix and C. Cary Patterson, however, have to pay only the taxes on the money in the shelters, not the interest and penalties. It's KPMG, auditors and tax lawyers who are looking over their shoulders now.
Rest assured, the IRS won't be far behind.
Can Advertisers Think Beyond The Buck?
Earlier in the week, a promotional stunt in Boston was misinterpreted and went wrong, snarling traffic and commutes over the downtown area. Last year, Paramount Pictures teamed up with the Los Angeles Times to promote the new movie, Mission: Impossible III. Paramount, apparently with the LA Times' permission, hooked up a device in the news racks to play the them to the new movie each time a patron opened the door to get a newspaper.
The music was triggered by a device that resembled a six-inch long red tube with wires running to the paper box. After one of the devices was reported to the police as a possible explosive device, the LA bomb squad blew up the newspaper dispenser.
Advertisers continue to come up with creative ways to catch our attention (some better than others, many not that good), but it seems to MIPTC that these two apparent misunderstandings could have been easily prevented, by both the police and the advertisers.
Had the advertisers thought to notify the police ahead of time, reports of possible bombs attached to newspaper boxes could have been summarily dismissed, and the promotion gone on to successfully caught our attention. Had the police thought to call the LA Time and ask if they knew anything about the device, the Times could have explained it instead of having the bomb squad blow up one of its newspaper dispensers.
In Boston it might not have been so easy for the police to call the Cartoon Network, which apparently placed around the City computers displaying the company's new TV show.
In any event, both the police and advertisers need to remember the hypersensitive world we live in now, and talk with one another. Whether prosecutors should file criminal charges against these advertisers will likely depend on whether the advertisers actually sought the ultimate attention they got by designing something that looked like a bomb or could have been mistaken for a bomb.
It's a crazy world out there. Let's be careful and talk with one another more frequently.
Ninth Ward Victims To Get Their Day In Court Against Army Corps Of Engineers
There's only so many ways to get out of a lawsuit, and the federal government holds the trump card: sovereign immunity.
It works most of the time.
But not when the government agency is possibly grossly negligent. The allegations against the U.S. Army Corps of Engineers and the way it built the dikes around New Orleans fall into that latter category. The USACOE tried to use the sovereign immunity trump card to buy its way out of a lawsuit, but it didn't work.
Now we'll get to see all of the evidence about what wasn't done right when the dikes were constructed. The victims in the Ninth Ward will have their day in Court.
MIPTC continues to believe that we should hire the experts in dike-building: the Dutch. They've got years of experience. We've just got big trucks and bulldozers that built those dikes in the 50's.
Yes, Goddammit, You Can Curse In A Public Meeting
Can you take the Lord's name in vain in a township meeting? According to the Sixth Circuit, yes you can. The court categorized one upset citizen's statement to the town's board, "That's why you're in a goddamn lawsuit," as mild profanity. If you've seen Chris Rock, that's a certainty. If you've been to church, perhaps not.
But this statement didn't arise in either of those venues. It arose during the portion of a public hearing where Thomas Leonard made the statement. He is the husband of Sarah Leonard, who was in a suit with the City of Montrose, Michigan, over the loss of her towing company's contract, and was addressing the town's board. He was taken outside and arrested for disorderly conduct, held in jail for an hour and released. The charges were later dropped.
As you'll see from reading the exchange between the participants in the meeting, one of the town board's members took issue with Leonard's "using the Lord's name in vain." Free speech rights, however, allow this type of exchange, and preclude the police from arresting people for expressing their opinions as long as they're not otherwise disorderly.