All posts by johndavis

Wrongful Death Actions

If you’re going to bring a wrongful death action in AL, you must be the executor or administrator of the deceased’s estate. Recent AL Supreme Ct. cases make it clear that not even a spouse or child of the deceased can bring the suit otherwise. Even a lapse of time between being appointed and the two year statute of limitations will bar the suit. See Northstar Anesthesia v. Noble, 1141158, and Providence Hospital v. Howard, 1150363, both issued 07/15/2016.

Abortion clinics don’t have to be surgical centers and doctors don’t have to have hospital admitting privileges.

US Supreme Court strikes down Texas state law requiring abortion clinics to meet surgical center requirements and abortion doctors to have hospital admitting privileges. Several other states, including Alabama, have similar laws. The Court noted that abortion is generally a very safe procedure with fewer deaths than many more common procedures not subject to the same requirements. Furthermore, Texas already required clinics to have arrangements with doctors who have admitting privileges. Thus, the law put unnecessary obstacles in the way of women seeking abortions. See Whole Woman’s Health v. Texas, Oct. Term 2015, No. 15-274.

Fourth Amendment allows warrantless breath test, but not blood test.

US Supreme Court bolsters DUI laws by asserting that a warrant is not required to obtain breath test incident to DUI arrest. The judges equate this to a search of a person after arrest and that it is not a significant intrusion of privacy or person. On the other hand, the judges say that blood tests require piercing the skin, thus are more intrusive and give law enforcement a sample from which more information can be extracted. See Birchfield v. North Dakota, Oct. Term, No. 14-1468.

If you want to keep your guns, don’t hit your spouse!

The US Supremes recently clarified 18 USC 922 which makes it illegal to possess a firearm if you have been convicted of the crime of domestic violence. The Court makes it clear that a misdemeanor conviction for domestic violence in state court, even if it was reckless as opposed to knowing or intentional, qualifies as a conviction for purposes of the act and prohibits that person from possessing firearms. So if you want to keep your guns, don’t hit your spouse. See Voisine et al v. US, Oct. Term, 2015, No. 14-10154.

Credit Reports

The Fair Credit Reporting Act requires consumer reporting agencies to follow reasonable procedures to assure maximum possible accuracy of consumer reports and imposes liability on wilful failures to comply with the act. However, as the US Supreme Court recently stated, the consumer must establish an injury in fact, traceable to the agency, which can be redressed by a favorable court decision. In other words, the consumer must show that they were denied credit, a job or housing due to the defective credit report, and that the court can fix that either with a money judgment or injunctive relief. See Spokeo, Inc. v. Robins, Supreme Court of the US, No 13-1339, decided 5/16/2016.

Negligent Auto Repairs

Have you ever had a problem with your auto and took it to the service department or garage for repair only to be told that they couldn’t find anything wrong with it. Or even worse, they make a repair and later the problem comes back. In a recently decided Alabama Supreme Court case, the court makes it clear that the burden on proof is on the consumer/auto owner to present expert opinion that the service department or garage was negligent in failing to diagnose the problem or correctly repair it. See Bishop Chevrolet v. Burden, 1141231, Oct. Term, 2015-2016, released 5/6/2016. Mr. Burden and taken his truck in on several occasions due to a burning smell emanating from under the hood. Bishop Chevrolet made a repair to no avail, and Mr. Burden brought it back again, but there was no resolution. Driving home from work the next day, the truck caught fire and was a complete loss. Mr. Burden settled with General Motors on product design issues, but Bishop Chevrolet refused. A jury awarded Mr. Burden substantial damages, but the Supremes overturned the award due to his failure to provide expert testimony that Bishop Chevrolet was negligent.

US Supreme Court slams robo callers in recent case.

A class action was brought against a federal contractor for violation of the Telephone Consumer Protection Act. The TCPA prohibits using any automatic dialing system to send a text message to a cellular telephone absent prior express consent. The Court held that the class action could go forward,  and that the contractor was not immune because it had exceeded it’s authority by sending messages to individuals who had not “opted in”. See Cambell-Ewald Co. v Gomez, No. 14-857, decided January 20, 2016.

Arbitration Agreement Blocks Suit Against Nursing Home

Alabama Supreme Court rules that arbitration agreement signed by man who suffered from chronic dementia is binding because it could not be proved that he was incompetent at the time of signing.  He lost 50 lb.s  due to malnutrition and died a year later while in a nursing home. His estate sued the nursing home for malpractice and negligence. The nursing home moved the court to enforce the arbitration agreement and the Supremes agreed. Moral of story, don’t sign arbitration agreements, and don’t allow your agent under a power of attorney to sign one either. See,   Supreme Court of Alabama, Special Term, 2015, 1140090, Troy Health and Rehabilitation Center v. Brenda McFarland, as personal representative of the Estate of Garnell Wilcoxon, Appeal from Pike Circuit Court (CV-13-900068).


Federal Tort Claims Act

If you are injured by the U.S. government (say you’re involved in auto accident with government employee doing government business), you have two years to file a claim with the responsible agency. If they deny your claim, you have six months to sue in federal district court. If you miss those deadlines, can you still pursue you claim? The Supreme Court says yes, if you have good cause. The legal term is equitable tolling. Equity requires doing right by the parties. See U.S. v. Wong, Slip Opinion, 13-1074, 4/22/15.