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D.C. Circuit Denies Vernon Jordan's Fee Reimbursement Request In Connection With Lewinsky Scandal

Vernon Jordan submitted a fee reimbursement request in excess of $300,000, but the D.C. Circuit denied the claim except for $1215.00 representing 2.7 hours to review the Independent Counsel's final report. In a per curiam opinion, the Court wrote in pertinent part that:

Jordan cites his no doubt accurate claim to be a prominent Washington attorney and a friend of the President as the reason for the intensity of the investigation, but other than a conclusory statement, he offers no fashion in which the Act was a ‘‘but for’’ cause of all or part of the investigation generating the attorney fees for which he now seeks reimbursement. . . . With one finite exception which will be discussed infra, nothing in Jordan’s application or the supporting documentation supports the proposition that the investigation of Jordan was any longer or more intense than it would have been in the absence of the requirements of the Act. The Attorney General when she made the referral, and the Independent Counsel when he conducted the investigation, had credible, indeed compelling, evidence that Monica Lewinsky had committed perjury and was attempting to suborn perjury of others. This was accompanied by other evidence that the President of the United States had committed perjury and had suborned or attempted to suborn others. Evidence developed from this evidence established that Jordan, a friend of the President, had undertaken extensive efforts to benefit Lewinsky, the apparent perjurer and suborner of others. Jordan offers no reason why any prosecutor in the absence of the Act would not have investigated these serious allegations of criminal wrongdoing as thoroughly as did the Independent Counsel.

No Liability for Negligent Vasectomy Where Father Failed To Follow Instructions For Post-Vasectomy Semen Analysis

The Maryland Court of Special Appeals has affirmed a defense verdict in a medical malpractice case involving a negligent vasectomy, based on the father's contributory negligence. The Court also held that the mother's derivative claim did not survive the father's contributory negligence.

In a wrongful birth case charging a doctor or other health care provider with having negligently caused an unwanted birth of a child, the spouse who was in the doctor-patient relationship . . . is the primary plaintiff. To the extent to which the other spouse may also have a claim for damages, that claim is derivative in nature and must be brought in a joint action and tried along with the trial of the primary plaintiff's suit for negligence. To the extent to which contributory negligence or any other foreclosing reason would bar recovery by the primary plaintiff, any derivative claim by the spouse is, ipso facto, also barred.

In Action For Contribution in D.C., Settling Tortfeasor Need Only Prove Reasonableness of Settlement And Is Not Required To Prove Special Damages That Claimant Would Have Recovered

A heating oil company delivered oil to the wrong home. Unfortunately, the recepients of this delivery had recently converted from oil to natural gas. The contractor which had handled the conversion had not removed, disabled or capped the fill pipe of the home heating oil system. Thus the unwanted oil delivery instantly became an oil spill.

Extensive damage was done to the home and the owners were forced to move out due to the need for remediation. The heating oil company settled with the homeowners for $850,000, receiving an assignment of the homeowners' action against the contractor. The heating oil company then sued the contractor for contribution in the amount of one-half of the settlement.

At trial, a jury found that the $850,000 settlement was not reasonable, and that $600,000 would have been a reasonable settlement. The heating company was awarded the pro rata amount of $300,000 against the contractor. Cross appeals were filed.

The D.C. Court of Appeals affirmed. The common law rule in the District is that there is a right of equal contribution among joint tortfeasors (there is no statute concerning contribution). The Court held that the trial court properly instructed the jury that it must determine not only whether the contractor was liable to the homeowners in negligence, but also whether the settlement by the heating oil company was reasonable. The Court rejected the contractor's argument that the settling tortfeasor should have been required to offer proof of the specific damages the homeowners could have recovered against the contractor.

[W]e now hold that a settling tortfeasor who brings a contribution action against a non-settling tortfeasor in the District of Columbia has the burden of establishing the liability of the non-settling tortfeasor, and the reasonableness of its settlement with the injured person(s).

Forum Non Conveniens Ruling By D.C. Court of Appeals

The D.C. Court of Appeals has reversed a trial court's dismissal of an action on forum non conveniens grounds in a probate related matter. In this case, the decedent was a lifelong resident of the District. She died testate, and a resident of South Carolina was appointed personal representative by the Probate Division of Superior Court. The decedent had had $256,000 in bank accounts in the District. Sometime before her death, the decedent had placed another South Carolina resident's name on those accounts, and they were held in both names at the time of death. The personal representative filed suit in the District of Columbia to have the funds declared the sole property of the Estate, and obtained a TRO freezing the bank accounts. But the co-owner of the accounts got wind of what was about to happen, withdrew the money under a claim of right of survivorship, and deposited the funds in a South Carolina bank before the order was issued.

The personal representative then filed an amended complaint in the District of Columbia for declaratory judgment, conversion and to establish a constructive or resulting trust against the person who withdrew the funds. The personal representative filed a similar action in South Carolina.

The trial court in the District of Columbia dismissed the suit on forum non conveniens grounds, stating as its reasons that the parties, including the personal representative , resided in South Carolina, that the funds sought were now in South Carolina, and that the personal representative had filed suit there.

The D.C. Court of Appeals reversed that ruling, reasoning that the District of Columbia has a strong public interest in the probate of the estate of a lifelong District resident, particularly with regard to property held within the jurisdiction at the time of death. The Court found no private interests that outweighed the public interests.

The decedent passed away on November 22, 2000, and now, almost three years later, the parties are finally going to proceed on the merits on the question of who owns the funds.

Mold and the Pollution Exclusion

A good article on this topic, Mold and Pollution: When Is a Contaminant Not a Contaminant?, by Jacqueline M. Jauregui, is available at the FDCC website.
Ms. Jauregui concludes that:

Courts may be hesitant to apply the standard pollution exclusion to bodily injury or property damage arising from mold infestation. Such hesitation appears largely grounded on the theory that mold may not be the type of “pollutant” which the exclusion was drafted to address.

To suggest, however, that the absolute pollution exclusion somehow applies only to “traditional,” “industrial” pollution finds no basis in the language of the exclusion itself. Moreover, in the context of liability policies issued to landlords, homeowners associations or developers -- the very risks most likely to face liability exposure for mold -- the exclusion is meaningless if it only applies to “traditional” “industrial” pollution. If policy interpretation must begin with the contract language itself, this interpretation should be rejected in the first instance.