An Alternative to the Absolute Bar Effect of Statutes of Repose
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CERCLA State Statutes of Repose
Latham & Watkins Environmental Litigation Practice June 20, 2014 | Number 1698 Supreme Court Ruling Resolves Conflict on State Statutes of Repose US Supreme Court rules CERCLA Section 309 does not preempt state statutes of repose. Federal causes of action remain unaffected. Last week, in a 7-2 decision, the US Supreme Court ruled in CTS Corp. v. Waldburger that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 3091 does not preempt state statutes of repose. 2 The Court’s decision resolves a split between the Fourth, Fifth and Ninth Circuits regarding the preemptive effect of Section 309 on state statutes of repose.3 Case History In Waldburger, CTS Corporation, the former owner of an electronics and electronics parts plant in North Carolina, faced state nuisance claims brought by the property’s current owners and neighboring landowners based, in part, on allegations that CTS Corporation contaminated the groundwater with chlorinated solvents. CTS Corporation operated at the site from 1959 to 1985 and sold its former property in 1987. In 2009, EPA allegedly notified Plaintiffs that nearby well water was contaminated. In 2011, 24 years after CTS Corporation sold its North Carolina property, Plaintiffs filed suit seeking “reclamation” of “toxic chemical contaminants,” “remediation of the environmental harm caused” by the contaminants, and monetary damages for “all the losses and damages they have suffered...and will suffer in the future.” 4 The district court dismissed plaintiffs’ claims based on North Carolina’s statute of repose, 5 which provides a 10-year filing deadline “from the last act or omission of the defendant giving rise to the cause of action.”6 The Fourth Circuit reversed the district court on the basis of Section 309 preemption. -
Case 2:12-Cv-00668-KRG Document 131 Filed 03/18/15 Page 1 of 27
Case 2:12-cv-00668-KRG Document 131 Filed 03/18/15 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA HOWARD KEPHART and DIANE ) KEPHART, ) Civil Action No. 2:12-668 ) Plaintiffs, ) Judge Kim R. Gibson ) v. ) ) ABB, INC., ) ) Defendant; Third-Party ) Plaintiff, ) ) v. ) ) THE BABCOCK & WILCOX ) COMPANY, et al., ) ) Third-Party Defendants ) MEMORANDUM AND ORDER OF COURT I. Synopsis Before the Court in this matter are three motions: (1) a motion to dismiss (ECF No. 94) filed by Third-Party Defendants Babcock & Wilcox Company, Babcock & Wilcox Investment Company, and Babcock & Wilcox Power Generation Group (“B & W” or “B & W Defendants”); (2) a motion for partial summary judgment (ECF No. 108) filed by Defendant/ Third-Party Plaintiff ABB, Inc. (“ABB”); and (3) a motion for consolidation of oral argument (ECF No. 111) filed by Defendant/ Third-Party Plaintiff ABB, Inc. The primary issue argued by the parties is whether Pennsylvania’s statute of repose, 42 Pa. Cons. Stat. § 5536, provides protection from liability in this action to Third-Party Defendants B & W and to Defendant ABB. Based on the record before the Court and after Case 2:12-cv-00668-KRG Document 131 Filed 03/18/15 Page 2 of 27 a careful review of Pennsylvania’s statute of repose and the relevant case law, the Court finds that the statute of repose bars ABB’s contribution claims against the B & W Defendants, but does not bar Plaintiffs’ products liability and negligence claims against ABB. Accordingly, and for the reasons explained below, the Court will GRANT B & W’s motion to dismiss and will DENY ABB’s motion for partial summary judgment. -
Eddie C. Pratcher, Jr. V. Methodist Healthcare Memphis Hospitals, 407
IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 8, 2012 Session Heard at Memphis EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS HOSPITALS ET AL. Appeal by Permission from the Circuit Court for Shelby County No. CT-0070011-00 Donna M. Fields, Judge No. W2011-01576-SC-S09-CV - Filed June 28, 2013 The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. -
The Constitutionality of Statutes of Repose: Federalism Reigns
Vanderbilt Law Review Volume 38 Issue 3 Issue 3 - April 1985 Article 8 4-1985 The Constitutionality of Statutes of Repose: Federalism Reigns Josephine H. Hicks Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Constitutional Law Commons, and the Torts Commons Recommended Citation Josephine H. Hicks, The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vanderbilt Law Review 627 (1985) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol38/iss3/8 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Constitutionality of Statutes of Repose: Federalism Reigns I. INTRODUCTION ...................................... 627 II. STATUTES OF REPOSE ............................. 628 A. Defining "Statute of Repose" ............... 628 B. Arguments For and Against Statutes of Re- p ose ...................................... 632 III. CONSTITUTIONAL ISSUES .............................. 635 A. Equal Protection .......................... 635 B. Due Process ............................... 642 C. Open Courts, Access to Courts, and Remedy. 644 IV. ANALYSIS .......................................... 648 A. Effect of State Constitutional Law .......... 648 B. Future Direction .......................... 652 C. Arguments For and Against National Legisla- tion ..................................... -
Initial Stages of Federal Litigation: Overview
Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery. -
SOL-CHART.Pdf
MATTHIESEN, WICKERT & LEHRER, S.C. Hartford, WI ❖ New Orleans, LA ❖ Orange County, CA ❖ Austin, TX ❖ Jacksonville, FL Phone: (800) 637-9176 [email protected] www.mwl-law.com STATUTES OF LIMITATIONS FOR ALL 50 STATES A statute of limitations (SOL) specifies a time period for commencing suit on a given claim that begins to run, or is triggered, when the cause of action accrues. When a cause of action “accrues” generally depends on the particular state involved, but it is usually when an accident occurs or when a claimant “discovers” the resulting injury. While a statute of limitations takes effect when a claim arises, a statute of repose bars the bringing of a suit after a set period of time, regardless of whether an injury occurred, or a claim has arisen. The time limit for bringing suit established by a statute of repose is triggered by a specified event, such as the substantial completion of an improvement to real property, the date a product was used, or the date a product was sold. All fifty (50) states currently have statutes of repose, varying in both the type of claim covered by the statute and the length of the repose period. Forty-six (46) states have a statute of repose which apply to actions involving real property design, engineering, and construction. However, nineteen (19) states also have statutes of repose limiting product liability claims. STRICT PRODUCT PERSONAL PERSONAL SERVICE OF PROCESS STATE LIABILITY / BREACH OF STATUTE OF REPOSE PROPERTY INJURY REQUIREMENT WARRANTY Construction: 7 Years from substantial 2 Years completion to improvement to real An action is commenced by filing a Ala. -
Introduction to Law and Legal Reasoning Law Is
CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150. -
Statutes of Limitation and Repose in Construction Defect Cases
We are a full-service Civil Litigation Defense firm serving Western/Central Pennsylvania and West Virginia September 2016 The Gulf Tower 14th Floor 707 Grant Street Pittsburgh, PA 15219 Telephone: 412-258-2255 Fax: 412-263-5632 www.walshlegal.net Walsh, Barnes, Collis & Zumpella, P.C. represents insurance carriers, their insureds, and corporations in actions encompassing the entire civil litigation spectrum. We provide defense of wrongful death and personal injury claims in addition to property losses resulting from: • Automobile and Tractor Trailer Accidents • Catastrophic Fire Losses Statutes of Limitation and Repose • Construction Accidents in Construction Defect Cases • Employment Practices Liability The affirmative defenses 42 of the Pennsylvania Consolidated • Executive Liability of the statute of limitations and Statutes. • Insurance Coverage the statute of repose are two (2) A statute of repose is a statute • Premises Liability powerful defenses a defendant barring any suit that is brought after in a construction defect case may a specified time since the defendant • Product Liability assert. Although the successful acted, even if this period ends • Professional Liability assertion of both of these defenses before the plaintiff has suffered a may result in an early dismissal of resulting injury. A statute of repose IN THIS ISSUE: a lawsuit, these defenses are quite begins to run upon the completion Statutes of Limitation and Repose different in both theory and practical of certain conduct by a party. Graver in Construction Defect Cases ................... Page 1 application. v. Foster Wheeler Corp., 96 A.3d Workers’ Compensation Immunity Generally, a statute of limitation 383 (Pa.Super. 2014). Because is Broad, But… ....................................... -
ESSAY QUESTION NO. 9 Answer This Question in Booklet No. 9 Philip
ESSAY QUESTION NO. 9 Answer this question in booklet No. 9 Philip visits Daniel’s Woodworking (a sole proprietorship) in a Fairbanks strip mall. While leaving the shop, Philip slips and falls on the icy curb as he approaches his car that is parked in front of the shop. Two years later, Philip sues Daniel in Fairbanks Superior Court for damages for personal injury. Daniel answers the complaint, discovery begins, and the Court sets a jury trial in one year. A few weeks before trial, after discovery has closed, Daniel moves to amend the pleadings and assert a complaint against his landlord, Blue-Roof Malls, Inc., for apportionment of fault. Daniel attaches to his motion a proposed third-party complaint which alleges Blue-Roof negligently maintained the sidewalk, curb and parking lot where Philip fell, and that Blue-Roof’s negligence, in whole or in part, caused Philip’s injury. Philip files an opposition, arguing (1) it is too late to amend; (2) joinder of a new party now would prejudice Philip; (3) the Statute of Limitations bars Daniel from adding Blue-Roof, and (4) if Daniel is found liable in the present action, he can then seek contribution from Blue-Roof in a separate action. 1. Will the Superior Court grant Daniel’s motion? Why or why not? Explain. 2. Assume for purposes of this question only that Daniel is permitted to join Blue-Roof. Explain how the Superior Court will instruct the jury to determine the respective liability of the parties? Why? July 2011 Page 1 of 1 GRADERS’ GUIDE * * * QUESTION NO. -
Federal Tort Claims Act II
Federal Tort Claims Act II In This Issue Using the “Private Individual Under Like Circumstances” to Your Advantage: The Analogous Private Liability Requirement Under the January Federal Tort Claims Act . 1 2011 By Adam M. Dinnell Volume 59 Number 1 The Federal Tort Claims Act is a Very Limited Waiver of Sovereign United States Immunity – So Long as Agencies Follow Their Own Rules and Do Not Department of Justice Executive Office for Simply Ignore Problems . 16 United States Attorneys Washington, DC By David S. Fishback 20530 H. Marshall Jarrett Director Jurisdiction Limits on Damages in FTCA Cases . 31 By Jeff Ehrlich Contributors' opinions and statements should not be considered an endorsement by EOUSA for any policy, program, The Benefit of Proving Benefits – Avoiding Paying Twice For the Same or service. Injury Under the FTCA . .35 The United States Attorneys' Bulletin is published pursuant to 28 By Conor Kells CFR § 0.22(b). The United States Attorneys' Defending Wrongful Death and Survival Claims Brought Under the Bulletin is published bimonthly by the Executive Office for United Federal Tort Claims Act . 41 States Attorneys, Office of Legal Education, 1620 Pendleton Street, By Jamie L. Hoxie Columbia, South Carolina 29201. Managing Editor The United States’ Waivers of Sovereign Immunity in Admiralty . .46 Jim Donovan By Peter Myer Law Clerks Elizabeth Gailey Carmel Matin Researching the Legislative History of the Federal Tort Claims Act . .52 Internet Address By Jennifer L. McMahan and Mimi Vollstedt www.usdoj.gov/usao/ reading_room/foiamanuals. html Send article submissions and address changes to Managing Editor, United States Attorneys' Bulletin, National Advocacy Center, Office of Legal Education, 1620 Pendleton Street, Columbia, SC 29201. -
United States District Court for the District of Connecticut
Case 3:14-cv-01028-CSH Document 52 Filed 04/30/15 Page 1 of 78 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT MARSHALL CARO and INDII.com USE, LLC 3:14-CV-01028 (CSH) Plaintiffs, v. FIDELITY BROKERAGE SERVICES, KATHERINE HO, BILL ROTHFARB, April 30, 2015 EVAN ROTHFARB, MICHAEL SHANNON, and MICHAEL HOENIG Defendants. RULING ON MOTIONS TO DISMISS HAIGHT, Senior District Judge: Plaintiffs Marshall Caro, pro se, and Indii.com USE ("Indii") bring this diversity action seeking damages arising from Defendants' allegedly unlawful restraint of Indii's Fidelity Brokerage account. Defendants are Bill Rothfarb, a judgment creditor, his attorney, Evan Rothfarb (the "Rothfarb Defendants") Fidelity Brokerage Services ("Fidelity"), the custodian of the Indii account, Katherine Ho, a Fidelity employee, and Michael Shannon and Michael Hoenig, Fidelity's attorneys (the "Fidelity Defendants"). The complaint sets forth claims arising under state common and statutory law. The Rothfarb Defendants and the Fidelity Defendants have filed separate motions to dismiss the complaint. Docs. [25] and [37]. Each set of defendants moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted and is barred by the doctrines of res judicata and collateral estoppel. The Fidelity Case 3:14-cv-01028-CSH Document 52 Filed 04/30/15 Page 2 of 78 Defendants also move to dismiss the complaint for lack of personal jurisdiction over Ho, Hoenig and Shannon, pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiffs oppose Defendants' motions to dismiss. -
Answer in a Connecticut Civil Action • "Deny" - Denial, the Entire Paragraph Is False
Connecticut Judicial Branch What do the responses mean? Law Libraries In an Answer, the following are the responses allowed and their meaning to the Court. • "Admit" - Admission, the entire paragraph is true. Answer In A Connecticut Civil Action • "Deny" - Denial, the entire paragraph is false. • "Do not know" - Lacks the knowledge to either admit or deny and leaves it What is an Answer in a civil action? to the Plaintiff to prove. This response is treated by the Court as a denial. • "~dmit in part and deny in part" - Admit part of the paragraph, but disagree Connecticut Practice Book section 10-46 states that the Answer is the with part. Defendant's pleading which responds to each and every allegation in the Plai~tiff's Co~p.laint. In th~ Answer, the Defendant responds to each allegation If the Defendant agrees that one or more parts of the allegation by either admitting or denying the allegation, or stating that the Defendant does paragraph are true but believes that one or more parts are false, the Defendant not have enough knowledge to either admit or deny the allegation and leaves it m~st expl~in in the Answer what parts are being admitted and what parts are to the Plaintiff to prove. being ~ern~d: See. Connecticut Practice Book section 10-48. Admitting an allegation in 1.ts entirety means that the allegation is completely true and no part Connecticut Practice Book section 10-48 states that an Answer should of the allegation can later be brought up for discussion. be direct: precise and specific.