<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    The Lawletter Blog

    FEDERAL TORTS CLAIMS ACT: Feres Doctrine Cracked? Opening of Pandora's Box or Further Encasement in Stone?

    Posted by Trish Sifka on Thu, Oct 1, 2020 @ 08:10 AM

    The Lawletter Vol 45 No 5

    Trish Sifka, Senior Attorney, National Legal Research Group

         On December 20, 2019, President Trump signed the National Defense Authorization Act ("NDAA"), SB 1790, 133 Stat 1198, into law. This legislation included a substantial "crack" in the over 70-year-old, court-imposed Feres doctrine, which barred tort claims by military members against the United States for injuries incurred incident to service. Under this new provision in the NDAA, the Department of Defense ("DOD") can administratively receive, review, and settle tort claims filed by military members for personal injury or death caused by the negligent or wrongful act or omission of a DOD health-care provider. However, there are limitations. The injuries must not have been sustained in a combat zone. Claims are limited to medical malpractice claims against military medical personnel at military medical facilities. The provision also sets a two-year statute of limitations except for 2017 injuries that are filed in 2020.   Damages will be based on average federal court damages data for similar injuries. Claimants will be allowed to be represented by an attorney, but there is no judicial review.

    Read More

    Topics: FTCA, Feres Doctrine, claims against DOD health-care provider, National Defense Authorization Act

    ESTATES: Can Legitimacy of a Putative Heir Be Challenged in an Intestacy Administration?

    Posted by Matthew T. McDavitt on Mon, Sep 28, 2020 @ 11:09 AM

    The Lawletter Vol 45 No 5

    Matt McDavitt, Senior Attorney, National Legal Research Group

         When a person dies without a will, the decedent’s estate is passed via the statutory regime of intestate succession, representing the presumed intention of most people to gift their estate at death to their close heirs.

         A decedent’s intestate heirs encompass one’s closest blood relatives (plus more remote relatives via representation through deceased family members who have died leaving surviving issue), plus any children that were legally adopted by the decedent, or their issue. However, while it is common nowadays for out-of-wedlock children to petition estate administrations in order to prove their relation to a claimed deceased father, the related circumstance also arises where the paternity of a presumptive child of marriage is challenged.

    Read More

    Topics: intestacy, estates, putative heir, presumption of legitimacy, clear and convincing evidence

    INSURANCE: Business Interruption—COVID-19 Claims

    Posted by Amy Gore on Mon, Sep 21, 2020 @ 12:09 PM

    The Lawletter Vol 45 No 5

    Amy Gore—Senior Attorney, National Legal Research Group

                During this pandemic, many business owners believed that valuable coverage they had purchased for the businesses would provide a source of some financial security. Prudent business entities purchased business interruption coverage to "indemnify the insured against losses arising from the inability to continue the normal operation and functions of the business, industry, or other commercial establishment insured." Annotation, William H. Danne Jr., Business Interruption Insurance, 37 A.L.R. 5th 41 (1996 & Westlaw 2020). A typical event that has triggered this kind of coverage would be a fire or a hurricane, or some other natural disaster that caused damage to the business premises and closure of the business.

    Read More

    Topics: Insurance, Amy Gore, retroactive coverage, denial of coverage

    FIRST AMENDMENT/PUBLIC HEALTH: Freedom of Religion During the COVID-19 Pandemic

    Posted by Steven G. Friedman on Fri, Jun 19, 2020 @ 11:06 AM

    Steve Friedman, Senior Attorney, National Legal Research Group

         In light of the COVID-19 pandemic, many aspects of our lives have been severely altered and restricted in the name of public health. The extent of the states' police power is currently being tested amid the COVID-19 pandemic, and one such legal battleground involves the freedom of religious practice.

         As long ago noted by the Supreme Court, "[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease or the latter to ill health or death."  Prince v. Massachusetts, 321 U.S. 158, 166‑67 (1944).  As illustrated below, even the fundamental right to gather in worship can be somewhat restricted by the government (i.e., prohibiting in-person services), but even such restrictions have limits (i.e., cannot ban drive-in services).

    Read More

    Topics: First Amendment, COVID-19, public health, freedom of religion, state police power

    PROPERTY: Landlord Tenant/Constructive Eviction and Breach of Covenant of Quiet Enjoyment

    Posted by D. Bradley Pettit on Wed, Jun 17, 2020 @ 12:06 PM

    Brad Pettit, Senior Attorney, National Legal Research Group

       An unreported mid-level appellate decision by a Pennsylvania Superior Court illustrates that courts take a dim view to a residential landlord's attempt to defend against breach of covenant of quiet enjoyment and constructive conviction claims against him or her by a tenant by asserting that the parties' dispute stemmed from a good-faith mistake or misunderstanding. In Grodin v. Farr, No. 45 WDA 2019, 2020 WL 919200 (Pa. Super. Ct. Feb. 26, 2020) (nonprecedential decision), the court rejected a landlord's claim that he did not breach the covenant of quiet enjoyment or constructively evict his tenants by changing the locks on their unit because he mistakenly assumed that the tenants had received a key to the back door from the previous tenants and could still gain access to the leased premises.

    Read More

    Topics: landlord-tenant, breach of covenant of quiet enjoyment, good-faith mistake, constructive eviction

    CONTRACTS: Virginia Unconscionability Decision Shows That Extreme Facts May Indeed Make Bad Law

    Posted by Paul A. Ferrer on Wed, Jun 17, 2020 @ 11:06 AM

    Paul Ferrer, Senior Attorney, National Legal Research Group

         The Virginia Supreme Court's recent decision in Flint Hill School v. McIntosh, No. 181678, 2020 WL 33258 (Va. Jan. 2, 2020), seems to provide some support for the old adage that "bad facts make bad law." In that case, the McIntoshes enrolled their minor child in Flint Hill School, a private school in Fairfax County, Virginia. The McIntoshes signed an enrollment contract in which they agreed to pay "all attorneys' fees and costs" incurred by the school "in any action arising out of or relating to this Enrollment Contract." Significantly, the provision did not require that the school be the prevailing party in order to recover its attorneys' fees. As the Virginia Supreme Court pointed out, the practical effect of such a provision, if applied as written, is essentially to foreclose all litigation on the contract.

    Read More

    Topics: contracts, contract of adhesion, meaningful alternatives, common law of unconscionability, procedural unconscionability

    CONTRACTS:  Contract Excuses and the COVID-19 Pandemic

    Posted by Anne B. Hemenway on Wed, Jun 17, 2020 @ 11:06 AM

    Anne Hemenway, Senior Attorney, National Legal Research Group

         The economic fallout from the COVID-19 pandemic and the sudden and worldwide shuttering of large and small businesses may be felt for a long time.  One of the resulting issues is the applicability of a force majeure clause, or common-law impossibility, frustration of purpose, or commercial impracticability excuses for contract performance and obligations. Force majeure clauses come into effect when events occurring beyond the control of the parties prevent performance of contract obligations. Some contracts include specific force majeure events that will excuse performance at this time, such as a pandemic (the World Health Organization declared a pandemic on March 11, 2020) or when governmental or administrative action is taken that disrupts or precludes performance under a contract.

    Read More

    Topics: contracts, COVID-19, force majeure clause, frustration of purpose, excuse for performance

    FAMILY LAW: Custody, Visitation, and COVID-19

    Posted by Brett R. Turner on Fri, May 8, 2020 @ 09:05 AM

    The Lawletter Vol 45 No 3

    Brett Turner—Senior Attorney, National Legal Research Group

                The ongoing COVID-19 crisis is affecting the lives of all Americans in many ways. One of those many ways is the exchange of children under custody and visitation orders.

                This is a very uncertain area of the law, with essentially no court decisions yet available, but several basic points can be noted. First, the mere existence of the crisis, if neither the children nor any parent has actually been exposed to COVID-19, is probably not alone a sufficient basis for noncompliance with any custody or visitation order. Indeed, emergency orders issued by the governor in at least three states—Illinois, Indiana, and Ohio—expressly list travel required by a custody or visitation order as essential for purposes of travel restrictions. These provisions would seem to suggest a policy that mere fear of COVID-19, without any specific evidence of a risk of exposure to the virus, is not alone a sufficient basis to modify an order or excuse noncompliance.

    Read More

    Topics: Brett R. Turner, custody, COVID-19, mere fear not sufficient for noncompliance, visitation

    EMPLOYMENT: Recent Legislation Provides Coronavirus Relief for the American Workforce

    Posted by Nadine Roddy on Wed, May 6, 2020 @ 12:05 PM

    The Lawletter Vol 45 No 3

    Nadine Roddy—Senior Attorney, National Legal Research Group

                On March 18, 2020, the federal Families First Coronavirus Response Act of 2020 ("Families First Act"), Pub. L. No. 116-127, was signed into law. The measure is the second in a series of recent legislative attempts to ameliorate the adverse health and economic effects of the novel coronavirus COVID-19 in the United States.  The Act applies to employers with fewer than 500 employees, and its major provisions require (1) paid sick leave, and (2) paid FMLA leave for child care during the pandemic. The Act's leave provisions are effective April 2, 2020 through December 31, 2020.

                A third piece of legislation, the Coronavirus Aid, Relief, and Economic Security Act of 2020 ("CARES Act"), Pub. L. No. 116-136, was signed on March 27, 2020. A massive relief package, it provides for increased public health spending, cash relief for individual citizens earning under $75,000 a year ($150,00 a year for married couples), enhanced unemployment benefits, a lending program for small businesses, and targeted relief for certain heavily impacted industries.

    Read More

    Topics: Nadine Roddy, COVID-19, Families First Act, CARES Act, child care leave, employer tax credits, paid sick leave

    CIVIL PROCEDURE: Effect of COVID-19 Pandemic on Discovery Deadlines

    Posted by Paul A. Ferrer on Wed, May 6, 2020 @ 11:05 AM

    The Lawletter Vol 45 No 3

    Paul Ferrer—Senior Attorney, National Legal Research Group

         Based on the exceptional circumstances presented by the COVID-19 pandemic, many state and federal courts have entered general orders altering deadlines for a wide variety of matters, including deadlines for filing appeals, the most notable example being the U.S. Supreme Court's extending the period to seek review of a lower court decision by writ of certiorari from 90 to 150 days. Counsel should be aware, however, that in the absence of an order of general applicability, deadlines will not be extended without a specific order from the court in a particular case. To the contrary, judges are loath to allow "all litigation to grind to a halt in many cases," as "allowing that to happen will only exacerbate, in many cases, the detrimental effects of this crisis." Horning v. Resolve Marine Group, No. 19-60899-CIV, 2020 WL 1540326, at *1 (S.D. Fla. Mar. 30, 2020) (Scola, J.).

    Read More

    Topics: Paul A. Ferrer, discovery deadlines, specific order requirement, extension of time, COVID-19

    New Call-to-action
    Free Hour of Legal Research  for New Clients
    Seven ways outsourcing your legal research can empower your practice

    Subscribe to The Lawletter

    Latest Posts