Quote of the Day - The Supreme Court is an institution far more dominated by centrifugal forces, pushing toward individuality and independence, than it is by centripetal forces pulling for hierarchical ordering and institutional unity.
Lawyer 2 Lawyer Internet Radio Covers the Supreme CourtA big week for the U.S. Supreme Court as it winds down its 2006-2007 term with five rulings involving free speech, religion and campaign finance. On this week's Lawyer 2 Lawyer, we discuss these rulings and look ahead to upcoming SCOTUS action. Please join me and my fellow co-host and Law.com blogger Robert Ambrogi with the experts: Tony Mauro, Supreme Court correspondent for Legal Times, American Lawyer Media, and Law.com and Amy Howe, a named partner at Howe & Russell P.C in Washington D.C. and regular contributor to and editor of SCOTUSblog. Don't miss it!
Supreme Court Restores Santity To CERCLA
Thank God. The United States Supreme Court finally cleaned up the debris left from its groundbreaking decision three years ago in Cooper Industries, Inc. v. Aviall Services, Inc. Now, parties who voluntarily remediate contaminated property may sue other parties for environmental contamination cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act.
Despite the open question of whether this option was open after the Cooper Industries decision, the now Court ruled under section 107(a) that Potentially Liable Parties can recover these voluntary cleanup costs, even if they are partly responsible for the contamination.
Earlier this month in U.S. v. Atlantic Research Corp., the Court rejected the position that only innocent parties can pursue recovery under CERCLA's joint cost recovery provision, which imposes joint and several liability on all parties. MIPTC earlier reported on the Eighth Circuit's interpretation of this case, largely upheld by the Supremes in Atlantic Research.
But all is not rosy. The decision also casts doubt on the value of the USEPA's highly-touted "contribution protection" to PLPs who enter into cash-out settlements. In a rare unanimous opinion, Justice Thomas declared this "contribution protection" actually offers no protection to parties who "cash-out" CERCLA 107(a) claims with the USEPA. In contrast, the decision expands a party's remedies when voluntarily cleaning up contaminated property. Now, you can pursue parties who "cash out" with the USEPA, despite promises from the goverment that those parties were protected.
Ouch. That's hundreds of thousands of parties, and significant changes to the liability side of many companies' balance sheets.
In other words, if you settle potential liability with the USEPA and don't also settle with all the other responsible parties - a tall order in most contamination cases - you may find yourself paying at least twice, if not more times (depending on the number of Potentially Liable Parties.
As most everyone knows in the environmental liablity area, CERCLA turns standard tort schemes upside down. Section 107(a) imposes strict, joint and several liability against PLPs, a hard pill to swallow for most used to our typical scheme of "I'm liable for what damage I cause." In other words, a party who caused only five percent of the contamination is completely (100%) liable for cleaning up the entire contaminated site.
Other sections of CERCLA work differently. Section 113(f)(1), on the other hand, creates what is known as "several" liability, which means that the parties allocate the liability among themselves according to their respective liabilities. Defendant sued under this section are held responsible for their fair share of the contamination.
Prior to the Court's clarification in Atlantic Research, you had to choose - either a contribution action under section 113(f)(1) or a section 107(a) claim for joint and several cost recovery. To some degree, that choice prevented parties responsible for contaminating a site from receiving compensation for 100% of the cleanup costs.
Cooper Industries turned that world upside down, and severely limited section 113(f)(1) actions only to PLPs who either: (1) gotten sued under CERCLA section 106 (by the USEPA) or 107; or, (2) entered into a settlement with the USEPA. That limitation left a wide open group: PLPs who voluntarily remediated contaminated property without USEPA oversight.
Now, that question has an answer. This case, however, continues shifting the supposedly "known" cash-out settlements in prior cases and guarantees confusion for years to come.
After years of dedicated public service and notable credentials, as reported by the Wall Street Journal Law Blog, Roy L. Pearson got a taste of what it's like to lose. And lose he did.
Not only his pants (which according to the dry cleaners were returned), but also his integrity and quite possibly his job as an Administrative Law Judge.
People do silly things when they're at the end of their rope. Supposedly when Pearson filed suit, he was at rock bottom; divorced with mounting credit card debt.
The worst is yet to come, however. Next week, the real judge in the case will decide whether to award the dry cleaners their attorneys fees and costs.
Then Pearson may really get it in the shorts.
Update July 7, 2007: Pearson intends to continue fighting his loss, and will file a motion to ask the judge to reverse her decision. This circus is starting to get painful to watch.
Genetic Testing Good Enough To Prove Man Wrongly Named As Father Isn't, But Not Good Enough For A Refund
Terry Burton had a child she named Tyler James, and listed Taron James as the father. When Tyler was born in 1992, Taron was in the Persian Gulf with the armed forces and denied being Tyler's father. Taron even offered to pay for genetic testing to prove he was not the father.
Mother declined the testing, something MIPTC has cautioned about before.
Not to be dissuaded, however, Mom sued Taron and obtained a default judgment against him for child support, and the court ordered Taron to pay $121.00 per month. Taron paid it but played no role in Tyler's life, and continued to deny he was Tyler's father.
Frustrated with making the payments, Taron sued to contest paternity. This time, he obtained an order for genetic testing, which conclusively proved he was not the father. Vindicated, he sought the return of his $121.00 monthly payments for the last seven years from Tyler's Mom, Ms. Burton.
The Court of Appeal held that California Family Law Code section 7648.4 prevents Taron from recovering the money he wrongly paid in child support. The Court ruled the legislature intended that in cases like this, the wrongly declared father can't get his money back. The statute, the Court says, is designed to protect the child at the expense of the wrongly named father.
The familiar ring of the "best interests of the child" can be heard loudly in this case. Taron argues that while that may be the case, since it was Terry who wrongly named him, she should be the one to pay him back.
You know what they say: it all flows downhill, except when it's in the air.
The Housing Slump? There's No Housing Slump, We've Got Fountains Again!
That headline is a bit disingenuous, but stick with me here for a minute or so. When MIPTC first arrived in Orange County back in the late 80's - which practically makes me a native - the fledgling Irvine Ranch used fountains in its commercial building projects as a "we've made it" statement. After all, it was "founded" in 1971, even though the City of Irvine claims residents lived here some 18,000 years ago. That fact certainly impresses people that we've been here a long time .... But still, fountains were our own little status symbol to ourselves.
They were subtle in some ways (tic-tac-toe designs in small, three-hoot-high squares) to fantastical (the fountains at Fashion Island are timed and create wondrous designs that allow kids to play right in them). But they were everywhere - big and glorious to almost barely noticeable. In a land that would be desert but for the Colorado River, we splashed water about like it and money would always be flowing.
Then when the housing and commercial building slump hit in the 90's. The result? They turned most of the fountains off. "Too ostentatious," we were told. "We have to conserve," the leaders directed. "It's time to focus on rebuilding," developers harangued.
And we did. Over the last ten to fifteen years, the County has gone from being bankrupt to pell-mell building once again. In the meantime, we've added jobs, built more master-planned communities, plowed down orchards for homes and office buildings and moved nurseries further away from what has rapidly turned from a "City with no center" to the "Central Park of the West." Heck, we're even building The Great Park to rival all other parks in the world. This is, after all, the home of Disneyland (link has sound).
From my home at the North edge of Irvine, I travel down Jamboree Road each day to work and I cross the breadth of the City. At last count, there were some twenty different home sites being built, from apartments to single family detached homes to live above work townhomes to high-rise condos. It's a challenge every day just to figure out which of Jamboree's ten lanes are going to be passable. Yes, that's right - a ten lane city street with red lights. It's not a freeway.
But lo and behold, in the last week, fountains have returned, and returned in a big way, despite the similarities. At the opposite end of Irvine, the new Newport Lexus building has built a two-story fountain at the corner of Jamboree and MacArthur. The fountain has several columns of water shooting up, and then falling down six-inch stairsteps. There's another fountain at the corner of Jamboree and Campus in a concave shape extending probably 100 feet wide, again with six-inch stairstep drops. The third fountain is some distance away at the corner of Jamboree and Barranca near the old Tustin Air Base, and it too is about 100 feet wide, also with six-inch stairstep falls, but it's instead convex in shape.
All of which tells me in the most unscientific way that either there's no housing slump, or if there is, it won't last long. At least that's the view from this chair behind the computer.
Gifts Given In Anticipation Of Marriage Not Recoverable When Engagement Ends
With One Notable Exception - And It's Not The Vasectomy
I'm no family law lawyer, but it's unlikely I would have filed this Utah case in California: a man who bought his fiance a seven-day trip to Alaska, a three-week trip to France, plunked down $2,400 to help her son buy a car, and while the engagement was pending, a vasectomy. Oh yes, of course, he bought the obligatory engagement ring. Without explanation, however, she broke off the engagement and returned the ring. All after having taken the trips and buying a used car, and the small issue of a couple snips in the nether region.
Jilted, he sued.
The Utah appeals court dispatched his claims with a history lesson. Some 400 years ago, when marriage was considered an economic transaction, the court said, such damages were recoverable in a breach of promise action.
Somewhere along the line, though, marriage morphed from an economic transaction to an emotional transaction. Given this sea change, the court decided that our jilted lover could no longer recover what he attempted to characterize as "conditional gifts."
He was just born four hundred years too late.
He wasn't without a remedy, however. The court said he otherwise would have been able to recover the value of the engagement ring since it clearly was a "conditional gift" made in anticipation of marriage. Since she returned the ring, he was without a remedy.
And despite the vasectomy, without a wife and no recovery for the doctor's bill even though he had his receipts.
Kentucky Creates Tort Of Intentional Trespass Presumably To Make Damages Easier To Recover
The Practical Consequences May Be Much Different
As an element of a claim, knowledge is sometimes difficult to prove. When you do, however, damages tend to flow easily. Think negligence (a common mistake) and fraud (an intentional mistake). When you prove fraud, punitive damages are next.
And so is a loss of insurance coverage. Most states, including California, preclude insurance companies from covering intentional torts. It just doesn't make sense to allow people to "intend" to inflict harm and then insure them for it.
In Kentucky, a divided Supreme Court adopted the tort of intentional trespass, and allowed those damaged by contamination flowing from another site onto their property to recover damages. According to the report from Lexis in the last link, all a landowner has to do to recover is show a diminution in value from the trespass.
Not hard to do when it's contamination that's the vehicle of the trespass.
With that ruling, landowners can presumably recover damages for the trespass, but you'll want to check with a lawyer licensed in the great state of Kentucky. MIPTC isn't.
The only problem with the ruling is the practical aspect: insurance carriers won't be helping make those payments, which will make the real recovery of damages less likely.
Lawyer 2 Lawyer Internet Radio Explores Animal Law
On March 16, 2007, Ontario-based Menu Foods recalled more than 60 million cans and pouches of pet food that it marketed under a variety of brand names. Many pets across the States became ill or even died.
Join me and my fellow Law.com bloggger and co-host Bob Ambrogi as we discuss the pet food recall, the lawsuits and class actions filed against the distributor, product liability and property damage and the significance of pets in our society. This week's Lawyer 2 Lawyer welcomes Attorney Jay Edelson, partner at the firm Blim & Edelson LLC out of Chicago, who filed one of the first class actions involving the contaminated pet food crisis and Attorney Bruce Wagman, partner with the firm Schiff Hardin LLP in San Francisco and Chief Outside Litigation Counsel of the Animal Legal Defense Fund. Don't miss it!