Friday, August 31, 2007
UNL Law College student expelled for plagiarism appealed to the Lancaster County District Court. District Court and Nebraska Court of Appeals dismiss case, holding that the Dean and Honor Committee of the law school are not "agencies" subject to the Administrative Procedures Act, nor was their expulsion decision a "contested" case.Kerr v. Board of Regents et al. ___N.W.2d___ Filed August 28, 2007. No. A-05-953. Law student Michael Kerr got caught plagiarizing three papers and then submitting the identical plagiarized material to different professors. A law school Honor Committee voted 4 to 1 to expel him and the Dean approved. Kerr alleged disparate treatment due to his race and national origin (guess) so that must have swayed the one dissenter on the committee. He then appealed to the District Court, lost and appealed to the Court of Appeals. Appeal dismissed."An “agency” is each board, commission, department, officer, division, or other administrative office or unit of the state government “authorized by law to make rules and regulations.” § 84-901(1). We have found no basis to conclude that the Honor Committee or Dean Willborn is “authorized by law to make rules and regulations,” Nor was Kerr's expulsion the result of a contested case as "there is no law requiring that the question of whether Kerr remains a College of Law student be determined by an agency (as defined by § 84-901(1)) and, in any event, as said, the Honor Committee and the dean are not agencies under such statute.
Wednesday, August 29, 2007
Order of the Kneepads update: Counsel for Discipline for the Nebraska Supreme Court helps poor business people find ways to blame their attorneys. The Kearney Hub reports that master litigator Kent Frobish, Assistant Counsel for Discipline of the Nebraska Supreme Court filed formal charges (pdf) against venerable Kearney attorney William Orr arising from his representing the Baristas' coffee shop principals. Disciplinary Counsel Frobish became very proficient in this job because he held a baker's dozen of private sector positions before landing in the Supreme Court's easy chair. Somehow I don't see how Baristas' people can blame Orr for all their problems. He didn't tell them not to deposit their withholding taxes to the tune of over $330K. Although the FTC fined the partners, this did not completely choke their income.
Friday, August 24, 2007
No uninsured motorist coverage for passengers who were not insured persons for an automobile's liability insurance policy, and a much smaller payday for plaintiffs' attorneys. Nebraska Supreme Court, J Stephan with Gerrard, J and Heavican CJ concurring rules for Shelter against its insured's passenger who was injured in an accident with an uninsured automobile. Jones v. Shelter Mut. Ins. Cos., S-06-310, 274 Neb. 186. Shelter excluded passengers in their insureds' vehicle who were not themselves insured persons under the policy. Although permitted drivers were covered, guest passengers were not. Plaintiff and his own uninsured carrier American Family argued Shelter's policy violated 44-6408 . 44-6408 requires liability insurers who provide insurance for bodily injury... arising out of the ownership, operation, maintenance, or use of a motor vehicle to also provide to persons insured who are legally entitled to recover compensatory damages for bodily injury (uninsured and uninsured motorist coverage). Supreme Court rules Shelter did not violate public policy by restricting the meaning of "use" of the motor vehicle to those guests who were operating or maintaining it. Justice Gerrard, concurring, cant wait to butt in and tell the Unicameral how it should write its laws. Gerrard states he is concerned about unsuspecting passengers who throw themselves at the mercy of uninsured drivers. Good enough, but how about the plaintiff attorneys who win smaller settlements because of this ruling? Don't they deserve favorable mention from their champion John Gerrard?
Will medical malpractice plaintiffs be able to bring cases against Hospitals and doctors for their advertisements? Nebraska Supreme Court, per curiam, affirms Douglas County District Court defense verdict in medical malpractice case rules that judge could exclude defendant evidence of hospital's advertisements for its walk-in emergency clinic. Supreme Court holds the advertisements did not establish a standard of care. But Court hints that in the right cases plaintiffs could bring negligent misrepresentation claims Karel v. Nebraska Health Sys., S-05-1311, 274 Neb. 175 Tina Karel's estate administrator sued Nebraska Health Systems, dba Clarkson West EmergiCare (Clarkson West), and Scott Menolascino, M.D., for medical malpractice action. Plaintiff died just a few hours after seeking treatment from the emergency clinic the second time that evening. After the defense verdict the Plaintiff appealed arguing the district court should have admitted her evidence of the defendants' print and radio advertisements produced by for the Clarkson West Emergicare clinic.Supreme Court affirms. "Neither the offer of proof nor any other part of the record affords any basis for concluding that Karel relied upon or was even aware of the marketing activities undertaken by Clarkson West when she chose to seek medical care at the facility"
Sunday, August 19, 2007
Malpractice lawyers will sue other lawyers for settling cases and also for taking cases to court. Nebraska Supreme Court (J. Wright) reinstates $1.6 million malpractice verdict against Omaha's McGrath North law firm in favor of former client LaVista Keno operator Richard Bellino and his trial attorney David Domina. Bellino v. McGrath North, S-06-130, 274 Neb. 130. Lawyers beware of advising clients to accept settlements that another lawyer will say were too low, conversely don't advise a client to beat a settlement offer at trial. The Douglas County jury ruled that McGrath North's client received bad legal advice on how to dump his business partner in their Keno business and then that he would win in court. Although the district court agreed that the defendants' continuous representation through the clients unsuccessful appeal against the former partner's business opportunity lawsuit was timely and that the defendants were negligent , the district judge reduced the jury's $1.6 million to $224K. The district judge reasoned that since the client would owe his partner something eventually, no damage resulted from the attorney's conduct. Supreme Court disagrees. "After (plaintiff) did not accept (former partner's) offer, (Plaintiff's) appeal continued until this court affirmed the judgment in favor of (former partner). The jury could reasonably have concluded that but for the negligence of McGrath North, Plaintiff would have paid substantially less than $3.1 million to attain his stated goals."
Nebraska Supreme Court in two cases arising from the Amwest liquidation that started six years ago rules against landlord who sought satisfaction from defaulted tenants performance bond, but rules in favor of Florida general contractor who said it never received notice of the Amwest liquidation proceedings.
Although Justice Stephan doesn't think police officers have rights to free speech, he and his fellow Solons on the Nebraska Supreme Court think that a little law school wouldn't hurt them. Snyder v. Department of Motor Vehicles 274 Neb. 168. The Supreme Court majority throws out an administrative license suspension from Douglas County because the police officer marked "speeding over 20 mph, DUI" as the reason for the arrest. Now if the busy Omaha Police Department officer who stopped this drunk driver who was driving over 20 mph over the speed limit had been to law school, he would have known that although that's the ticket he issued to this drunk driving menace, that was a mere legal conclusion and did not state "facts" to make the wise Supreme Court justices happy. So what if Supreme Court justices and their clerks dream up these technicalities while sitting in their State Capitol chambers and law libraries, the form has TWO AND A HALF INCHES for the officer to state his reasons for arresting the suspect and the burden of the paperwork is not "onerous," even for busy policemen who must complete these forms at all hours and in all weather conditions. Dissenting Chief Justice Heavican seems to be the only judge on the court who agrees to see the real world, and finds the court decision's thwarting effective drunk driving enforcement.
Saturday, August 11, 2007
Follow up: on remand the Nebraska Supreme Court again reverses the Commission on Industrial Relations in the dispute between the Hyannis Educational Association and the Grant Public School District ; Supreme Court rules in favor of school district that "deviation clauses" from union contracts between several other school districts and teachers' representatives were prevalent, whether they had open-ended or specified conditions, and therefore the CIR erred when it threw out the school district's deviation clause. Hyannis Educational Assn. v. Grant County. Sch. Dist. No. 38-0011, S-06-300The Supreme Court also declined to moot the case because of the Legislature's Class I Schools' consolidation bill from two years ago, 2005 Neb. Laws, L.B. 126.
Sunday, August 05, 2007
The Nebraska Supreme Court decides that good police discipline, i.e., toeing the line, overrides Union activity and the public's right to know police officers' public safety concerns. Omaha Police Union Local 101 v. City of Omaha, S-06-403 Omaha Police Department Chief sought to discipline two officers who were police union officials for comments they made about the OPD's 911 standards. One commented that the OPD's procedures were "misleading" and this was during a union meeting. The chief tried to discipline this officer but Internal Affairs dismissed the case. A second officer wrote and article that was barely insubordinate, in that article the officer wrote an article was generally critical of the standard operating procedures for two-officer 911 calls and the manner in which the city and OPD calculated response time. Housh characterized city officials as “[a] bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” He also stated that “[t]hey refuse to do it, they know they have screwed up, and rather than admitting guilt, they (whoever they are) will make history and try to control what is said/revealed during union meetings regarding response time.” The comments about "grown men" cant be true, because if the police administration had grown men, it would not have thought these comments while harsh amounted to a disciplinary breach. Anyway the Supreme Court gives the department what it wants, the chance to tie up anyone who questions authority and public safety and make them think twice about rocking the boat, because next time an employee criticizes his government employer he will have to navigate a maze of constitutional balancing tests, juggling and water torture.
Friday, August 03, 2007
Nebraska Supreme Court nixes North Carolina pig breeder's claim against hog farmers estate. The breeders officers mistakenly signed where the hog farm's principal should have signed to guarantee the farms breeding stock debts. Court affirms Gage County Probate Court's ruling that there was no guaranty agreement either by reforming the erroneously signed document nor by finding that the guaranty was the "leading object" of the agreement between the farm and breeder, so the court would not excuse the writing requirement of the statute of frauds (§ 36‑202(2) (Reissue 2004)). In re Estate of Dueck, S-06-538there was no written guaranty agreement between the parties. In the absence of a written agreement between GIS and Dueck, there was nothing to reform The leading object rule presumes that there has been an oral promise or some sort of an oral agreement.Dueck did not orally agree to guarantee Forward Trend’s debt to GIS, and it follows that the leading object rule was inapplicable.