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February 2013 Archives

Law School, ABA Task Force of the Future of Legal Education

On February 27, 2013, our partner Tom Lyons was interviewed on WPRI's "Executive Suite" about law schools and the ABA Task Force on the Future of Legal Education.  A link to the show's tape is below.  Tom's segment starts about 15 minutes into the tape.  The first part of the show is an interview with Bruce Katz of the Brookings Institute and our General Treasurer Gina Raimondo about the economic future of Rhode Island. 

Collections-award of costs under Fair Debt Collections Practices Act

The Supreme Court has held that a federal district court can award costs to a prevailing defendant that was sued for alleged violations of the Fair Debt Collections Practices Act even if the district court does not find plaintiff sued in bad faith.  The Court said that the provision of the FDCPA that allows the trial court to award attorney's fees and costs if a debtor brings a claim in bad faith does not bar the trial court from awarding costs under Rule 54(d) in its discretion.  Marx v. General Revenue Corp, No. 11-1175 (U.S. Feb. 26, 2013). /Practice-Areas/Collections-for-Creditors.shtml  

Asbestos-Superior Court denies motions to dismiss filed by customers of boat builder

The Superior Court has denied motions to dismiss asbestos claims made against six customers of a commercial boat builder where plaintiff's decedent worked.  Plaintiff argued the customers could be liable for failing to warn the plaintiff of the dangers of asbestos used in the construction of the boats they purchased from the boat builder.  The court said it had specific personal jurisdiction over the customers.  The court also said the allegations of the complaint, liberally interpreted, adequately pled claims for failure to warn, negligence, strict products liability, implied warranty of merchantability and wrongful death.  The court dismissed the claims for breach of express warranty and implied warranty of fitness for particular purpose.   Santos v. A.C. McLoon Oil Co., P.C. 2009-5475 (Feb. 22, 2013). 

Checks-statute of limitations for conversion

Chief Judge Lisi of Rhode Island federal district court has held under Rhode Island law that neither the "discovery rule" nor the doctrine of "continuing tort" applies to stay or extend the three year statute of limitations for conversion of negotiable instruments.  Plaintff alleged that his brother converted more than $1 million of checks from his medical practice and the movant-bank should have prevented the conversions.  The court adopted a magistrate judge's R&R that the statute bars claims for conversions that occurred more than 3 years before suit.  The district court's order is Marano v. RBS Citizens Financial Group, 2013 WL 639155 (D.R.I. Feb. 20, 2013).  The R&R is at 2012 WL 7170421 (D.R.I. Dec. 27, 2012). 

Asbestos-government contractor removal, denial of remand

The federal district court of Rhode Island has denied a motion to remand an asbestos case that was removed based on the "government contractor" defense.  The court said removal was proper when the "defendant identifies facts which, viewed in the light most favorable to the defendant, entitle him or her to a complete defense," adopting Judge Robreno's standard in Hagen v. Benjamin Foster Co.  Shepherd v. Air & Liquid Systems Corp., 2012 WL 587 4781 (D.R.I. Nov. 20, 2012)

Commercial litigation-projections are not actionable representations

The Superior Court has granted summary judgment for a commercial creditor that funded the creation of a medical imaging center.  The court held that various projections in a business plan prepared by the creditor for the defendants did not constitute actionable representations that would bar plaintiff's claims or support defendants' counterclaims.  Defendants did not rely on some projections and plaintiff provided an adequate disclaimer for others.  Siemens Financial Services, Inc. v. Stonebridge Equipment Leasing LLC, P.B. 09-1677 (R.I. Super. Feb. 15, 2013).  /Practice-Areas/Business-Commercial-Litigation.shtml

Attorney's fees under contingency fee agreement

The Rhode Island Supreme Court has held an attorney is entitled to collect a contingency fee under a contract with his client when he has "substantially performed" his duties and only "minor and relatively unimportant" matters remain at the time the client discharges the attorney.  Otherwise, the attorney's recovery is determined by quantum meruit.  The Law Office of Thomas A. Tarro, III v. Checralla, No. 2011-123-Appeal, (R.I. Feb. 21, 2013). 

Collections-federal court adopts "continuous violation" theory for FDCPA violation

The Rhode Island federal district court has adopted the "continuous violation" theory to find that an entire alleged series of phone calls falls within the 1 year statute of limtations under the Fair Debt Collections Practices Act to make a claim that such calls violate the Act.  Hockenhull v. Law Office Howard Lee Schiff, 2012 WL 6525504 (D.R.I. Dec. 3, 2012).  /Practice-Areas/Collections-for-Creditors.shtml

Collections-federal court says collections claim governed by R.I. statute of limitations

The federal district court of Rhode Island has dismissed Fair Debt Collection Practices Act claims against a law firm holding that the Rhode Island 10 year statute of limitations applied to debt claims filed in Rhode Island under an "interest-weighting" approach.  The court allowed claims against a debt collection for failing to register as a debt collector under a Rhode Island statute.  Fiorenza v. LVNV Funding, 2012 WL 2562415 (D.R.I. June 29, 2012).  /Practice-Areas/Collections-for-Creditors.shtml

The Future of Legal Education

Our partner Tom Lyons has been named to the American Bar Association's Task Force on the Future of Legal Education.  The Task Force held a hearing and meeting during the ABA's recent mid-year meeting in Dallas.  Here is a link to a New York Times article about the hearing. 

Personal Jurisdiction over out-of-state law firm

The federal district court in Rhode Island has found a Texas law firm subject to personal jurisdiction in Rhode Island where it agreed to represent a Rhode Island resident on Federal Tort Claims Act claims against the Veteran's Administration arising from alleged medical malpractice at the VA hospital in Rhode Island. Plaintiff sued the law firm for legal practice allegedly arising from its representation on the FTCA claim. Plaintiff found defendant law firm through its website. He signed a letter of representation and a contract with the law firm while in Rhode Island. Defendants submitted claims to the VA hospital. Judge Smith noted that if the law firm had been required to file suit it would have done so in Rhode Island and Rhode Island law would have applied to the claim. He distinguished a First Circuit decision, Sawtelle v. Farrell, where much of the law firm's activity in that case occurred outside the forum jurisdiction and the forum's law would not have governed the client's claim. Judge Smith reviewed a number of cases the parties cited and found a common theme: there is personal jurisdiction over the law firm where the legal malpractice claim is filed in the same jurisdiction that was the forum for the original action serving as the predicate for the legal malpractice claim. Dennett v. Archuleta, C.A. 12-424-S (D.R.I. Jan. 11, 2013). /Practice-Areas/Business-Commercial-Litigation.shtml

Spoliation-Superior Court excludes expert as sanction

The Superior Court has barred a defendant in a motor vehicle accident case from presenting the testimony of its accident reconstruction expert because of the defendant's spoliation of evidence. If the sanction is upheld on appeal it will be the first time a Rhode Island state court has been upheld in a spoliation sanction more severe than an "adverse inference" jury instruction.

Subrogation-The R.I. Supreme Court rejects application of "anti-subrogation" rule

The Rhode Island Supreme Court rejected the application of the "anti-subrogation" rule where Nationwide, the insurer of a home, brought a subrogation claim against D.F. Pepper Construction, a corporation owned by the homeowner. Pepper, the homeowner, was operating a dump truck owned by his corporation when he crashed into his home causing over $200,000 in damage. Merchants defended the construction company and it argued the claim was barred by the "anti-subrogation" rule which prohibits subrogation claims against the subrogee's insured.