The Most - Rhode Island Lawyers Weekly

Volume 34

Issue No. 35

$8.00 per copy

January 6, 2014

The MostImportant Opinions

January - december, 2013

RHODE ISLAND

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ADMINISTRATIVEAPA - Plausibility

The plausibility standard does not apply toa complaint under the Administrative Pro-cedure Act for judicial review of a finalagency action, the 1st U.S. Circuit Court ofAppeals says.

Atieh, et al. v. Riordan, et al. (LawyersWeekly No. 01-152-13) (9 pages).

Appeal - Rule 6Rule 6 of the Superior Court Rules of CivilProcedure — which extends the last day incomputing any time period to the next daywhich is neither a Saturday, Sunday norholiday — is applicable to the SuperiorCourt’s review of administrative decisions,the Rhode Island Supreme Court holds.

McAninch, et al. v. State of Rhode IslandDepartment of Labor and Training, et al.(Lawyers Weekly No. 60-059-13) (13 pages).

ExhaustionAn issue is exhausted when it has beensquarely presented to and squarely ad-dressed by an administrative agency, re-gardless of which party raised the issue —or even if the agency raised it sua sponte,the 1st U.S. Circuit Court of Appeals says.

Mazariegos-Paiz v. Holder (Lawyers WeeklyNo. 01-273-13) (16 pages).

Limitations - TollingThe Superior Court has the equitable au-thority to determine whether the statuteproviding for judicial review of an adminis-trative decision pursuant to G.L. §42-35-15(b) should be tolled in appropriate cir-cumstances, the Rhode Island SupremeCourt concludes.

Rivera v. Employees’ Retirement System ofRhode Island (Lawyers Weekly No. 60-047-13) (17 pages).

SCRA - TollingA military veteran’s notice of appeal fol-lowing a denial of his disability applicationshould be deemed timely, as he had diffi-culty readjusting to civilian life and there-fore was entitled to a 90-day stay of theappeal period after his release from mili-tary service, the U.S. Court of Appeals forVeterans Claims decides.

Ausmer v. Shinseki (Lawyers Weekly No. 75-041-13) (11 pages).

ANTITRUSTConspiracy - Polystyrene -

RecyclingIn dismissing a conspiracy claim under §1 ofthe Sherman Antitrust Act, a judge (1) im-properly applied a heightened pleadingstandard and (2) improperly occupied afactfinder role by choosing among plausi-ble alternative theories interpreting thedefendants’ conduct and by adopting astrue allegations made by the defendants,

the 1st U.S. Circuit Court of Appeals con-cludes.

Evergreen Partnering Group, Inc. v. PactivCorporation, et al. (Lawyers Weekly No. 01-151-13) (40 pages).

APPEALSPACA - Bond

The appeal provisions — including thebond requirements — of the PerishableAgricultural Commodities Act are manda-tory and jurisdictional, the 1st U.S. CircuitCourt of Appeals says.

The Alphas Company, Inc. v. Kopke, et al.(Lawyers Weekly No. 01-044-13) (10 pages).

Waiver - Plea - RestitutionAn appeal waiver contained in a defen-dant’s plea agreement encompassed therestitution component of his sentence, the1st U.S. Circuit Court of Appeals holds.

United States v. Okoye (Lawyers WeeklyNo. 01-251-13) (9 pages).

ARBITRATIONCBA - Hospital -

TelecommunicationsAn arbitrator’s finding — that a hospitaldid not violate a collective bargainingagreement by implementing a newtelecommunications system — should beconfirmed absent evidence of a worseningof working conditions for the bargainingunit members affected by the change, aU.S. District Court judge decides.

New England Health Care EmployeesUnion, District 1199, SEIU v. Women and In-fants Hospital (Lawyers Weekly No. 52-135-13) (10 pages).

Disability benefits - ‘Salary’An arbitrator improperly disregarded col-lective bargaining agreement language infinding that a firefighter’s salary, for thepurposes of calculating disability benefits,included longevity pay, “EMTC” pay andholiday pay, a Superior Court judge deter-mines.

Town of West Warwick v. International As-sociation of Firefighters, Local 1104(Lawyers Weekly No. 61-160-13) (35 pages).

Modification - Insurance -Interest

A Superior Court judgment — vacatingthat portion of an arbitration award thatwas in excess of the plaintiff’s $100,000 pol-icy limit and confirming the remainder ofthe award — must be reversed on theground that the judge did not have the au-thority to modify the award based on hisbelief that the arbitrators had made an er-ror of law, the Rhode Island Supreme Courtdecides.

Wheeler v. Encompass Insurance Company(Lawyers Weekly No. 60-087-13) (20 pages).

Sanction - EmailA defendant franchisor should not havebeen sanctioned for sending an email to anarbitrator, as the email did not violate acourt order requiring the defendant to ob-tain judicial permission before making anymotion to delay or prevent arbitration pro-ceedings, the 1st U.S. Circuit Court of Ap-peals decides.

Awuah, et al. v. Coverall North America,Inc. (Lawyers Weekly No. 01-229-13) (9pages).

ATTORNEYSCity councilor - Simultaneous

representationAn attorney serving as a city councilor mayrepresent two clients in court provided thatthe attorney complies with the waiver pro-visions of Rule 1.7(b) and complies withRule 1.7 as it relates to simultaneous repre-

sentation in the event that the representa-tion of one clients is directly adverse to theother, the Rhode Island Supreme CourtEthics Advisory Panel Opinion says.

Rhode Island Supreme Court Ethics Adviso-ry Panel Opinion 2013-04 (Lawyers WeeklyNo. 75-040-13) (3 pages).

Consulting firmIt would violate Rule 5.4 and Rule 5.5 ofthe Rules of Professional Conduct for an at-torney to join with non-lawyers in a plan tostart a consulting firm under which the at-torney would share legal fees with thefirm, the Rhode Island Supreme CourtEthics Advisory Panel concludes.

Rhode Island Supreme Court Ethics Adviso-ry Panel Opinion 2013-03 (Lawyers WeeklyNo. 75-032-13) (2 pages).

Deceptive trade practicesThe Deceptive Trade Practices Act does not

his special issue contains sum-maries of the “importantopinions” that were published

in Rhode Island Lawyers Weekly in2013.

e “Important Opinions of theWeek” that appear on the front pageof the newspaper are selected fromthe decisions issued and received theprevious week. e summaries coverrulings from the appellate and trialcourts in Rhode Island, as well asfrom state agencies.

e full text of any decision fromthe 1st U.S. Circuit Court of Appeals,Bankruptcy Appellate Panel, U.S.District Court, U.S. BankruptcyCourt, U.S. magistrate judges, RhodeIsland Supreme Court and SuperiorCourt can be obtained without costby visiting rilawyersweekly.com.

All other court opinions includedin this section can be ordered atlwopinions.com.

e complete Lawyers Weekly

digest of any brief summary con-tained here can be found by search-ing Rhode Island Lawyers Weekly’sarchives at rilawyersweekly.com.

Please note that, while LawyersWeekly receives every ruling and or-der from the Rhode Island SupremeCourt and 1st Circuit, the newspa-per relies on individual judges andattorneys to inform it of trial courtrulings that might be of interest tothe bar. Please consider sending inthese rulings whether or not theyseem like significant cases. Upon re-quest, the names of the attorneys ofrecord in the case will be included inthe paper.

If you wish to submit a trial courtdecision, please mail it to: omas E.Egan, Rhode Island Lawyers Weekly,10 Milk St., Suite 1000, 10th Floor,Boston, MA, 02108-4649. Questionscan be directed to Tom at (617) 218-8166 or at [email protected].

Inside this issueEDITORIAL the Most Important opinions 2u.s. district Court Complaints 6

ADVERTISING Classifieds 16experts 16lawyer to lawyer 12legal Products & services 16Professional announcement 8real estate Classifieds 16

COVER PHOTOLicht Judicial Complex, Providence (Photo Credit: suPerior Court Judge robert d. krause)

T

The MostImportant Opinions

January - december, 2013

Noel Judicial Complex, WarwickPhoto CredIt: JudICIary of rhode IslaNd

apply to attorneys when acting within thescope of their profession, a Superior Courtjudge states.

Stafford, et al. v. Levine, et al. (LawyersWeekly No. 61-118-13) (4 pages).

Direct contact - Non-clientsThe restrictions of Rule 7.3(c) and (d) ofthe Rules of Professional Conduct (“Directcontact with prospective clients”) wouldnot apply to a lawyer’s attempt by letter oradvertisement to contact persons whohave knowledge related to a client’s law-suit, the R.I. Supreme Court Ethics AdvisoryPanel says.

Rhode Island Supreme Court Ethics Adviso-ry Panel Op. 2013-02 (Lawyers Weekly No.75-009-13) (3 pages).

Disqualification - ScreenA law firm representing the owner of atruck involved in an accident with a schoolbus should not be disqualified based on thefirm’s prior representation of the bus own-er, as the firm’s screening procedures ade-quately bar all of its attorneys from access-ing confidential and privileged informationregarding the bus owner, a Superior Courtjudge determines.

Berrios v. Jevic Transportation, Inc., et al.(Lawyers Weekly No. 61-036-13) (9 pages).

Fee-sharing - ParalegalA law firm may not pay a claimsadjuster/paralegal a quarterly bonus basedon the number of cases the adjuster/parale-gal assists in settling and on the counselfees generated from those cases, as thatwould amount to an impermissible fee-sharing arrangement, the Rhode IslandSupreme Court Ethics Advisory Panel states.

Rhode Island Supreme Court Ethics Adviso-ry Panel Op. 2013-01 (Lawyers Weekly No.75-008-13) (3 pages).

FeesA plaintiff’s request for more than $1 mil-lion in counsel fees and costs should be re-duced to $734,199.73 given the fact thatthe jury awarded the plaintiff $251,121.06in damages, a Superior Court judge con-cludes.

Ferris Avenue Realty, LLC v. Huhtamaki, Inc.(Lawyers Weekly No. 61-074-13) (19 pages).

Fees - Equal Access to Justice ActTo be eligible for counsel fees pursuant tothe Rhode Island Equal Access to JusticeAct, a corporation need not establish a networth under $500,000, a Superior Courtjudge says.

Rollingwood Acres, Inc., et al. v. Rhode Is-land Department of Environmental Man-agement, et al. (Lawyers Weekly No. 61-158-13) (12 pages).

Fees - Equal Access to Justice ActA counsel fee award of $10,907.64 shouldbe made to a plaintiff after an order deny-ing her application for Social Security bene-fits was overturned, a U.S. magistratejudge determines.

O’Connor v. Colvin (Lawyers Weekly No. 54-014-13) (8 pages).

Fees - Interest - Equal Access to Justice Act

Prejudgment interest should not be addedto an award of counsel fees pursuant tothe Rhode Island Equal Access to JusticeAct, a Superior Court judge states.

MacDougall v. Town of Charlestown Zon-ing Board of Review (Lawyers Weekly No.61-063-13) (20 pages).

GhostwritingGhostwriting, which occurs when pleadingsare drafted by licensed attorneys for pay-ing clients who then use those documentsin litigation, ostensibly representing them-selves pro se, is a violation of Rule 11 of theRhode Island Superior Court Rules of CivilProcedure, a Superior Court judge states.

Discover Bank v. O’Brien-Auty (LawyersWeekly No. 61-015-13) (27 pages).

Improper argument - JuryIt was inappropriate for defense counsel,during closing argument in an environ-mental suit over an indemnity agreement,to tell the jury what “justice requires,” aSuperior Court judge states.

Ferris Avenue Realty, LLC v. Huhtamaki, Inc.(Lawyers Weekly No. 61-050-13) (26 pages).

Privilege - UnionA plaintiff alleging disability discriminationand unlawful termination must answerdeposition questions about his communica-tions with a labor union even though theunion’s counsel was involved in the com-munications, a U.S. magistrate judge says.

Martins v. Rhode Island Hospital (LawyersWeekly No. 54-058-13) (7 pages).

Retainer agreement -Contingency fees - Discharge

A Superior Court judgment, awarding aplaintiff attorney and coplaintiff law firm$187,500 in fees owed by the defendantunder a 1989 retainer agreement, was war-ranted despite the fact that the defendantdischarged the plaintiffs, the Rhode IslandSupreme Court holds.

The Law Firm of Thomas A. Tarro, III, et al.v. Checrallah, et al. (Lawyers Weekly No. 60-031-13) (11 pages).

Sex offender classification -Appointment of counsel

An indigent sex offender, having appealedfrom an order raising his classification froma Level II to a Level III risk to re-offend, isentitled to appointed counsel on appeal toensure that the requirements of dueprocess and equal protection are satisfied,a Superior Court judge states.

State v. Leon (Lawyers Weekly No. 61-047-13) (21 pages).

BANKRUPTCYAbandonment - Lien avoidanceA Chapter 7 trustee’s abandonment of adebtor’s residence did not deprive the U.S.Bankruptcy Court of jurisdiction to deter-mine the debtor’s motion to avoid a judg-ment lien under 11 U.S.C. §522(f), theBankruptcy Appellate Panel concludes.

In Re: Rosado Ramos, Carmen Ines (LawyersWeekly No. 03-028-13) (6 pages).

ADHD - FraudA U.S. Bankruptcy Court order denying adebtor’s discharge because he omitted as-sets from his schedules should be affirmeddespite the debtor’s contention that he didnot have the requisite fraudulent intentbecause he suffers from attention deficithyperactivity disorder, which impairs hisworking memory, the Bankruptcy Appel-late Panel concludes.

In Re: McCarthy, Thomas P. (Lawyers Week-ly No. 03-008-13) (22 pages).

Bad faith - ConversionA judge’s decision to convert a debtor’sChapter 13 case to one under Chapter 7was warranted by the debtor’s bad faith asevidenced by her failure to disclose twopersonal injury lawsuits she had filed, the

Bankruptcy Appellate Panel holds.

In Re: Zizza, Kimberly Ann (Lawyers WeeklyNo. 03-027-13) (10 pages).

Chapter 13 plan - Good faithAn objection to a five-year Chapter 13plan, under which the debtor would paycreditors less than her monthly disposableincome, should be overruled, as the merefact that the debtor has the ability to payher creditors in a shorter time frame doesnot constitute a lack of good faith, a U.S.Bankruptcy Court judge decides.

In Re: Cobb, Maribeth (Lawyers Weekly No.53-003-13) (7 pages).

Counsel fees - FraudA debt owed to an attorney for fees in-curred in representing the debtor duringher prepetition divorce proceeding is dis-chargeable, as the debtor did not have afraudulent intent not to pay at the timeshe hired the attorney, the Bankruptcy Ap-pellate Panel rules.

In Re: Brady-Zell, Karen A. (Lawyers WeeklyNo. 03-029-13) (15 pages).

Discharge injunction - MortgageA mortgage lender did not violate theBankruptcy Code’s discharge injunction byrefusing to foreclose or otherwise take titleto the residence belonging to debtors whosought to surrender the residence, the 1stU.S. Circuit Court of Appeals concludes.

In Re: Canning, Ralph G. III, et al. (LawyersWeekly No. 01-034-13) (18 pages).

Financial condition - FalsityRecklessness can suffice under 11 U.S.C.§523(a)(2)(B) to prove that a materiallyfalse statement related to a debtor’s finan-cial condition was made or published withintent to deceive, the 1st U.S. Circuit Courtof Appeals states.

In Re: O’Donnell, David (Lawyers WeeklyNo. 01-224-13) (16 pages).

Fine - PriorityA fine assessed against a debtor — for be-ing in contempt of a state court order re-quiring environmental compliance — is en-titled to administrative expense priority,

Cite this page 34 rIlW 547 | rilawyersweekly.com January 6, 2014 | rhode Island lawyers Weekly | 3

Continued on page 4

AMERICAN STATES INSURANCECOMPANY v. LAFLAM

Lawyers Weekly No. 60-124-13

A cause of action under theuninsured/underinsured motorist provi-sion in an insurance policy does not ac-crue until the insurer denies a claim orclearly rejects a demand for payment orarbitration under the UM/UIM policy,the Rhode Island Supreme Court states.

HERNANDEZ-CUEVAS v. TAYLOR,ET AL.


If a plaintiff can demonstrate that lawenforcement officers were responsiblefor his continued, unreasonable pretrialdetention, the plaintiff has stated aconstitutional injury that may be vindi-cated through a 42 U.S.C. §1983 action,the 1st U.S. Circuit Court of Appealsstates in a case of first impression.

IN RE: MORTGAGEFORECLOSURE CASES


A blanket injunction staying mortgageforeclosure litigation must be dissolvedbecause the borrowers are not likely tosucceed on the legal issues that arecommon to most of the cases on theconsolidated docket, a U.S. DistrictCourt judge decides.

ODEN, ET AL. v. SCHWARTZ


A judge presiding over a medical mal-practice trial did not err in deciding suasponte to give the jury an insurance in-struction that “simply addressed the re-ality that jurors often wonder about lia-bility coverage, especially in instanceswhere there is typically an insured risk,such as medical malpractice,” theRhode Island Supreme Court concludes.

PAOLINO, ET AL. v. JF REALTY,LLC, ET AL.


Plaintiffs in a federal Clean Water Actenforcement action needed to giveonly enough information in their pre-suit notice to enable an abuttinglandowner to identify and remedy his

alleged violations of the act, the 1st U.S.Circuit Court of Appeals decides in acase of first impression.

ROLLINGWOOD ACRES, INC., ETAL. v. RHODE ISLANDDEPARTMENT OFENVIRONMENTALMANAGEMENT, ET AL.


To be eligible for counsel fees pursuantto the Rhode Island Equal Access to Jus-tice Act, a corporation need not estab-lish a net worth under $500,000, a Su-perior Court judge concludes.

SWEREDOSKI v. ALFA LAVAL,INC., ET AL.


The “frequency, regularity, proximity”test is the proper causation standard forasbestos cases in Rhode Island, a Superi-or Court judge determines.

STAFFORD, ET AL. v. LEVINE, ET AL.


The Deceptive Trade Practices Act doesnot apply to attorneys when actingwithin the scope of their profession, aSuperior Court judge says.

THE LAW FIRM OF THOMAS A.TARRO, III, ET AL. v.CHECRALLAH, ET AL.


A Superior Court judgment, awarding aplaintiff attorney and coplaintiff lawfirm $187,500 in fees owed by the de-fendant under a 1989 retainer agree-ment, was warranted despite the factthat the defendant discharged theplaintiffs, the Rhode Island SupremeCourt holds.

VENTURINI v. COSTELLO, ET AL.


A jury verdict, holding a Providence po-lice officer individually liable in theamount of $661,983.10, should not be re-duced, as the officer “is not entitled tobenefit from the relative immunities en-joyed by municipalities pursuant to §9-31-3,” a Superior Court judge determines.

TOP TEN of 2013ATTORNEYS


the 1st U.S. Circuit Court of Appeals rules.

In Re: Munce’s Superior Petroleum Prod-ucts, Inc., et al. (Lawyers Weekly No. 01-290-13) (16 pages).

Limitations - Motion to amendRules 4004 and 4007 of the Federal Rulesof Bankruptcy Procedure do not allow eq-uitable exceptions, notwithstanding theirnonjurisdictional nature, when a party filesan untimely extension request, the 1st Cir-cuit Bankruptcy Appellate Panel states.

In Re: Costa, Andrew J. (Lawyers WeeklyNo. 03-001-13) (16 pages).

Personal injury proceedsThe net proceeds from a Chapter 13debtor’s prepetition personal injury claimshould be released to the trustee for dis-bursement to creditors in accordance withthe confirmed plan, a U.S. BankruptcyCourt judge decides.

In Re: Murphy, Patrick O., et al. (LawyersWeekly No. 53-004-13) (18 pages).

PreemptionThe preemptive scope of 11 U.S.C.§1123(a)(5) does not extend to state lawsthat (1) are concerned with protecting pub-lic health, safety and welfare or (2) defineand protect the property rights of third par-ties, the Bankruptcy Appellate Panel holds.

In Re: Irving Tanning Company, et al.(Lawyers Weekly No. 03-022-13) (39 pages).

Profit-sharing plan - IRAsA U.S. Bankruptcy Court judge’s decision torevoke a Chapter 7 debtor’s discharge mustbe affirmed because of the debtor’s failureto disclose the existence of the two IRAsinto which he had transferred assets fromhis profit-sharing plan, the 1st U.S. CircuitCourt of Appeals holds.

Daniels v. Agin, et al. (Lawyers Weekly No.01-301-13) (38 pages).

Trespass - Implied consentA judge did not err in rejecting — based ona finding of implied consent — a trespassclaim asserted by condominium associa-tions against a debtor over the operationof the Newport Regatta Club, the 1st U.S.Circuit Court of Appeals rules.

In Re: IDC Clambakes, Inc. (Lawyers WeeklyNo. 01-214-13) (30 pages).

Willful and malicious injury -Chapter 13

A debt arising from willful and malicious in-jury to property can be subject to a nondis-chargeability proceeding in a chapter 7 casebut cannot receive the same treatment inan open, pending chapter 13 case, theBankruptcy Appellate Panel states.

In Re: Morse, Mark C., et al. (LawyersWeekly No. 03-024-13) (3 pages).

BANKS AND BANKING

Repossession - Yacht - NoticeA bank’s repossession and sale of a yachtwere valid, as the notice provided to theborrower was not deficient even though itdid not specify the time and place of thesale, the 1st U.S. Circuit Court of Appealsdetermines.

Barclays Bank PLC v. Poynter, et al. (LawyersWeekly No. 01-063-13) (14 pages).

CIVIL PRACTICEAffirmative defense - Motion to amend

A motion by a defendant in an asbestos lia-bility case to amend its answer in order toassert a new affirmative defense should beallowed, as any prejudice the plaintiffmight face from having to address the newdefense is mitigated by the fact that shehad adequate notice that the defense couldbe raised, a Superior Court judge concludes.

Sweredoski v. Alfa Laval, Inc., et al.(Lawyers Weekly No. 61-093-13) (18 pages).

ContinuanceA magistrate’s finding that a defendantmotorist operated a motor vehicle withoutinsurance in violation of G.L. §31-47-9 mustbe vacated and a remand ordered becausethe magistrate erred by denying a requestby the defendant motorist for a continu-ance, the Traffic Tribunal decides.

City of Cranston v. Irace (Lawyers WeeklyNo. 75-015-13) (4 pages).

Dismissal with prejudice - Refusal to settle

A plaintiff’s refusal to settle was not a validbasis for a judge to dismiss with prejudicethe plaintiff’s Resource Conservation andRecovery Act complaint, the 1st U.S. CircuitCourt of Appeals holds.

Colón Cabrera v. Esso Standard Oil Co.(Puerto Rico), Inc. (Lawyers Weekly No. 01-177-13) (18 pages).

Lead paint - Costs - FeesA court order requiring the state to pay aportion of the fees of co-examiners in leadpaint litigation was warranted in light ofthe state’s initial declaration that the defen-dant companies could seek reimbursementin the event of appellate success on the mer-its, the Rhode Island Supreme Court finds.

State v. Lead Industries Association, Inc., et al.(Lawyers Weekly No. 60-073-13) (15 pages).

Pleading - Prima facie caseIt is not necessary to plead facts sufficientto establish a prima facie case at the plead-ing stage, the 1st U.S. Circuit Court of Ap-peals says.

Rodríguez-Reyes, et al. v. Molina-Ro-dríguez, et al. (Lawyers Weekly No. 01-068-13) (18 pages).

Pleadings - PlausibilityThe plausibility standard announced inAshcroft v. Iqbal, 556 U.S. 662, 678 (2009),and Bell Atlantic Corp. v. Twombly, 550 U.S.544, 556 (2007), did not preclude a plaintifffrom modeling her complaint on Form 11of the Appendix to the Federal Rules ofCivil Procedure, the 1st U.S. Circuit Court ofAppeals rules.

García-Catalán v. United States (LawyersWeekly No. 01-279-13) (10 pages).

Sanctions - Diversity jurisdictionA defendant that successfully moved to dis-miss for lack of diversity jurisdiction shouldnot be sanctioned for failing to investigatethe jurisdictional facts immediately uponreceipt of the complaint, a U.S. magistratejudge concludes.

Augustyniak Insurance Group, Inc., et al. v.Astonish Results, L.P. (Lawyers Weekly No.54-011-13) (24 pages).

Sealing of records - AccessA protective order sealing discovery docu-ments relied upon by the court in ruling on

a summary judgment motion should bemodified to allow the public to fully scruti-nize the summary judgment decision, a Su-perior Court judge determines.

Dauray v. Estate of Mee, et al. (LawyersWeekly No. 61-020-13) (38 pages).

Sovereign immunity - IRSAn action to quash a summons issued bythe IRS to the plaintiff’s bank in connectionwith a collection action must be dismissedbecause the action is barred by the doc-trine of sovereign immunity, a U.S. magis-trate judge concludes.

Smith, et al. v. United States (LawyersWeekly No. 54-037-13) (6 pages).

CIVIL RIGHTSPretrial detention - Fourth Amendment

If a plaintiff can demonstrate that law en-forcement officers were responsible for hiscontinued, unreasonable pretrial deten-tion, the plaintiff has stated a constitution-al injury that may be vindicated through a

42 U.S.C. §1983 action, the 1st U.S. CircuitCourt of Appeals rules.

Hernandez-Cuevas v. Taylor, et al. (LawyersWeekly No. 01-175-13) (29 pages).

Retail store - 42 U.S.C. §1981A 42 U.S.C. §1981 complaint, filed by aplaintiff alleging that a sales clerk at thedefendants’ store said “insulting racial slursand comments” to her while she was plac-ing items on hold in a layaway transaction,was correctly dismissed for failure to identi-fy an impaired contractual relationship un-der which the plaintiff had rights, the 1stU.S. Circuit Court of Appeals holds.

Hammond v. Kmart Corporation, et al.(Lawyers Weekly No. 01-274-13) (15 pages).

COMMERCIALCredit card - FDCPA

A law firm’s collection action against acredit card holder was filed within the ap-plicable statute of limitations and thuscould not be the basis for a suit against thefirm under the Fair Debt Collection Prac-

BANKRUPTCYContinued from page 3

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The Dolan Company ChaIrMaN, PresIdeNt/CeoJames P. Dolan

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grouP PuBlIsherGlenda Russell ______________________________________________

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JANUARY - DECEMBER, 2013THE MOST IMPORTANT OPINIONS


tices Act, a U.S. District Court judge finds.

Martin v. Law Offices of Howard Lee Schiff,P.C. (Lawyers Weekly No. 52-115-13) (6 pages).

UCC - DisplacementA conversion action brought under theRhode Island Uniform Commercial Codedisplaced the plaintiffs’ common-law claimsof negligence and breach of contract, aU.S. District Court judge concludes.

Marano, et al. v. RBS Citizens FinancialGroup Inc., et al. (Lawyers Weekly No. 52-026-13) (9 pages).

CONFLICT OF INTEREST

AttorneyAn assistant city solicitor serving as legalcounsel to the Providence School Boardmay not represent private clients beforethe School Board or the Providence SchoolDepartment, but he and other members ofhis law firm may represent private clientsbefore other municipal entities, the EthicsCommission concludes.

In Re: Igliozzi, David V. (Lawyers WeeklyNo. 74-024-13) (6 pages).

Legal counsel - Board of Education

The Rhode Island Department of Elemen-tary and Secondary Education is not pro-hibited by the Code of Ethics from engag-ing a law firm as legal counsel eventhough a contract partner at the firm is amember of the Rhode Island Board of Edu-cation, the Rhode Island Ethics Commissiondetermines.

In Re: Guida, Patrick A. (Lawyers WeeklyNo. 74-038-13) (5 pages).

Municipal contracts - ExtensionWhile a town councilor’s business entitymay extend any town contracts enteredinto prior to his election, the entity maynot bid on any new contracts for the dura-tion of his service on the town council andfor a period of one year thereafter, theEthics Commission states.

In Re: McGarry, Sean J. (Lawyers WeeklyNo. 74-037-13) (4 pages).

CONSTITUTIONALFirst Amendment - Flyers

A plaintiff’s right to freedom of speech wasviolated when the Providence police pre-vented her from handing out flyers on thesidewalk in front of the Providence Careerand Technical Academy prior to the may-or’s 2010 “State of the City” address, a U.S.District Court judge finds.

Reilly v. City of Providence, et al. (LawyersWeekly No. 52-041-13) (35 pages).

CONTRACTBroker - Commission

A plaintiff broker’s exclusive listing agree-ment with the defendant landowner wassupported by adequate consideration, asholding otherwise “would be tantamountto declaring the standard form MLS ‘Exclu-sive Right to Sell Listing Contract’ invalid,”a Superior Court judge determines.

Durkin v. Delaney (Lawyers Weekly No. 61-096-13) (31 pages).

ClothingA defendant breached a contract as wellas the implied covenant of good faith andfair dealing by providing the plaintiffwith clothes that fell apart at the seamswhen worn by a model, were not made asdesigned and were otherwise unsuitablefor sale or display, a U.S. District Courtjudge finds.

Ha-Pe Boutique, LLC v. Pavon (LawyersWeekly No. 52-029-13) (13 pages).

Indemnity agreement -Environmental testing -

ForeclosureA lender, having foreclosed on a parcel ofreal estate following a loan default, is notentitled under an indemnity agreement tothe costs associated with environmentaltesting, the 1st U.S. Circuit Court of Ap-peals rules.

VFC Partners 26, LLC v. Cadlerocks Centen-nial Drive, LLC, et al. (Lawyers Weekly No.01-283-13) (17 pages).

Non-compete - Tortious interference

An independent contractor who solicitedclients for a Rhode Island corporation be-fore starting a competing business of hisown owed the corporation no duty of loy-alty absent an agency relationship or avalid signed agreement, a Superior Courtjudge rules.

Precision Payments, Inc., et al. v. East Com-merce Solutions, Inc. (Lawyers Weekly No.61-197-13) (18 pages).

CORPORATECertificate of authority

Defendants should not have been awardedsummary judgment based solely on the factthat, after the plaintiff corporation filedsuit, its certificate of authority was revokedby the Secretary of State of Rhode Island,the Rhode Island Supreme Court decides.

Custom Metals Systems, Ltd. v. Tocci Build-ing Corp., et al. (Lawyers Weekly No. 60-001-13) (7 pages).

Derivative suit - FutilityA U.S. District Court judge’s dismissal of ashareholder derivative suit based on a fail-ure to properly plead demand futility issubject to de novo review, the 1st U.S. Cir-cuit Court of Appeals says.

Unión de Empleados de Muelles de PuertoRico PRSSA Welfare Plan, et al. v. UBS Fi-nancial Services Inc. of Puerto Rico, et al.(Lawyers Weekly No. 01-003-13) (28 pages).

Fiduciary duty - Constructive trust

A constructive trust is appropriate in a casein which a defendant has obtained proper-ty by engaging in self-dealing in violationof her fiduciary duty as the president of herlate father’s corporations, a Superior Courtjudge determines.

Homonoff v. Forte, et al. (Lawyers WeeklyNo. 61-014-13) (35 pages).

Shareholder derivative suit - CVSA plaintiff’s conclusory statement — thatshe “is and at all relevant times was, ashareholder of nominal defendant CVS” —is insufficient to confer standing to bringshareholder derivative claims, a SuperiorCourt judge holds.

Gordon v. Ryan, et al. (Lawyers Weekly No.61-173-13) (16 pages).

Statute of reposeA defendant corporation’s argument that a$156,867 arbitration award in favor of aplaintiff union is barred by the two-yearRhode Island statute of repose (G.L. §7-1.2-1324) must be rejected in light of theunion’s allegations that the defendant con-tinued to do business for years after its cor-porate charter was revoked, a U.S. DistrictCourt judge decides.

Bricklayers and Allied Craftsmen LocalUnion No. 3 v. Union Stone, Inc., et al.(Lawyers Weekly No. 52-123-13) (16 pages).

CRIMINALArms Export Control Act

Two defendants’ convictions for exportingitems restricted under the U.S. Munitions Listmust be vacated because the trial judgeerred by instructing the jury that it must ac-cept without question the State Depart-ment’s after-the-fact determinations that theitems were controlled by the Munitions List,the 1st U.S. Circuit Court of Appeals rules.

United States v. Wu, et al. (Lawyers WeeklyNo. 01-066-13) (64 pages).

Assault - PhotographsA defendant’s convictions of simple assaultshould be affirmed even though the prose-cution violated Rule 16 of the SuperiorCourt Rules of Criminal Procedure by fail-ing to disclose incriminating photographsduring discovery, the Rhode IslandSupreme Court rules.

State v. Botas (Lawyers Weekly No. 60-062-13) (15 pages).

Bribery - GratuitiesThe federal program bribery statute, 18U.S.C. §666, does not criminalize gratuities,the 1st U.S. Circuit Court of Appeals says.

United States v. Bravo Fernandez, et al.(Lawyers Weekly No. 01-155-13) (84 pages).

Child molestation - Guilty pleaA defendant’s guilty plea should not be va-cated based on his assertion that he was notadequately represented because of defense’sfailure to advise him that he had an internalstruggle in continuing to represent the de-fendant, the Rhode Island Supreme Court.

State v. Castriotta (Lawyers Weekly No. 60-155-13) (7 pages).

ContemptA trial judge did not err in summarily adju-dicating the defendant in contempt ofcourt based on the defendant’s repeatedstatements that the judge (among others)had “better watch it,” the Rhode IslandSupreme Court concludes.

State v. Price (Lawyers Weekly No. 60-066-13) (25 pages).

Counsel of choiceA defendant’s constitutional right to hischosen counsel was not violated when hismotion for a one-month continuance afterobtaining replacement counsel was deniedby the trial judge, the 1st U.S. Circuit Courtof Appeals finds.

United States v. Maldonado (LawyersWeekly No. 01-045-13) (19 pages).

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Cross-examination - Hybrid representation

A defendant should not be permitted toconduct his own cross-examination of anIRS special agent, as the defendant’sknowledge of the subject matter of thetestimony is not an adequate justificationfor permitting such an unorthodox ap-proach, a U.S. magistrate judge deter-mines.

United States v. Caramadre, et al. (LawyersWeekly No. 54-059-13) (3 pages).

Cross-examination - Prior offenses

A defendant’s criminal convictions must bevacated because the prosecutor’s cross-ex-amination placed factually incorrect infor-mation before the jury and impermissiblyintroduced false evidence of the defen-dant’s previous criminal conduct, theRhode Island Supreme Court rules.

State v. Price (Lawyers Weekly No. 60-095-13) (17 pages).

Firearms ActIn order to constitute a “firearm” under§11-47-2(3) of the Firearms Act, an instru-ment must either have the capability to ex-pel a projectile or be readily convertible todo so, the Rhode Island Supreme Courtstates.

State v. Hazard (Lawyers Weekly No. 60-105-13) (43 pages).

‘Innocent possession’ instruction - Stolen firearm

A conviction for possession of a stolenfirearm must be vacated and the case re-manded, as the trial judge erred by not in-structing the jury on an “innocent posses-sion” defense, the 1st U.S. Circuit Court ofAppeals rules.

United States v. Baird (Lawyers Weekly No.01-085-13) (25 pages).

Juror dishonestyA party seeking a new trial based on jurordishonesty during voir dire must show (1)that the juror failed to answer honestly amaterial voir dire question and (2) that atruthful response to the voir dire question“would have provided a valid basis for achallenge for cause,” the 1st U.S. CircuitCourt of Appeals says.

Sampson v. United States (Lawyers WeeklyNo. 01-194-13) (42 pages).

Life sentence - DrugsA life sentence received by a defendant forhis role in a large-scale drug operationmust be vacated because the governmentdeclined to seek a life term at the outset ofthe case, when it could have done so law-fully, the 1st U.S. Circuit Court of Appealsrules.

United States v. Zavala-Martí (LawyersWeekly No. 01-122-13) (28 pages).

Prosecutorial misconductA defendant’s criminal convictions shouldbe affirmed despite the prosecutor’s in-flammatory misconduct in taking a gunfrom the evidence table and brandishing itbefore the jury during rebuttal, the 1st U.S.Circuit Court of Appeals concludes.

United States v. Santos-Rivera, et al.(Lawyers Weekly No. 01-205-13) (24 pages).

RestitutionAn order requiring payment of $8,000 inrestitution by a defendant convicted ofdepredation of federal property should beaffirmed, as the record evinces the sentenc-ing judge’s keen awareness of the defen-dant’s financial condition, the 1st U.S. Cir-cuit Court of Appeals.

United States v. Sánchez-Maldonado(Lawyers Weekly No. 01-315-13) (7 pages).

Sealing of records - RetroactivityThe record-sealing provisions of §12-19-19are not retroactively applicable to deferredsentences entered into before the effectivedate of a 2010 amendment to the statute,

the Rhode Island Supreme Court concludes.

State v. Briggs, et al. (Lawyers Weekly No.60-006-13) (13 pages).

SentencingIt is possible for a sentencing judge to focustoo much on the community and too littleon the individual and, thus, impose a sen-tence that cannot withstand the test ofprocedural reasonableness, the 1st U.S. Cir-cuit Court of Appeals says.

United States v. Flores-Machicote (LawyersWeekly No. 01-025-13) (16 pages).

SentencingA defendant convicted of bank burglaryshould not have been sentenced under aguideline intended for cases of robbery, asthe judge erred by selecting which guide-line to apply on the basis of conduct not al-leged in the indictment, the 1st U.S. CircuitCourt of Appeals concludes.

United States v. Almeida (Lawyers WeeklyNo. 01-059-13) (15 pages).

Sentencing - Double countingThe use in tandem of a base offense leveldictated by USSG §2A6.2(a), and an upwardadjustment under §2A6.2(b)(1)(A), does notconstitute impermissible double counting,the 1st U.S. Circuit Court of Appeals says.

United States v. Fiume (Lawyers Weekly No.01-049-13) (9 pages).

Sentencing - Obstruction of justice

A two-level sentencing enhancement forobstruction of justice was warranted bymaterial false statements the defendantmade to federal agents and others in orderto protect his girlfriend, the 1st U.S. CircuitCourt of Appeals concludes.

United States v. Quirion (Lawyers WeeklyNo. 01-110-13) (11 pages).

Sentencing - ‘One book’ ruleThe “one book” rule — specifying that asingle version of the federal sentencingguidelines is applicable for all convictions— did not violate the Ex Post Facto Clauseas applied to a defendant convicted of a se-ries of grouped offenses, the 1st U.S. CircuitCourt of Appeals determines.

United States v. Pagán-Ferrer, et al.(Lawyers Weekly No. 01-296-13) (55 pages).

Speedy trial - WaiverA criminal defendant’s lawyer may seek acontinuance and the concomitant exclusionof time for Speedy Trial Act purposes with-out first securing the defendant’s personalconsent, the 1st U.S. Circuit Court of Ap-peals says.

United States v. Gates (Lawyers Weekly No.01-057-13) (28 pages).

Threats - IntentTo convict a defendant of sending a threatto injure another across state lines in vio-lation of 18 U.S.C. §875(c), the govern-ment must prove only that a reasonableperson would construe the words as athreat, and need not prove as well thatthe defendant subjectively meant thewords to be a threat, the 1st U.S. Circuit

Court of Appeals states.

United States v. Clemens (Lawyers WeeklyNo. 01-307-13) (29 pages).

Verdict form - Reasonable doubtTwo defendants convicted of drug offensesare not entitled to a new trial even thoughthe verdict form erroneously instructed thejury that, to find them not guilty, it had tofind that they were innocent beyond a rea-sonable doubt, the 1st U.S. Circuit Court ofAppeals decides.

United States v. Pabellón Rodríguez, et al.(Lawyers Weekly No. 01-216-13) (29 pages).

DAMAGESCollateral source rule

A $59,239 verdict — for a plaintiff who wasinjured when the school bus she was oper-ating fell into a sinkhole on a Providenceroadway — should be upheld despite thedefendant city’s claim that the judge’serred in ruling that the collateral sourcerule required exclusion of evidence thatthe plaintiff received workers’ compensa-tion benefits, the Rhode Island SupremeCourt holds.

Morel v. Napolitano (Lawyers Weekly No.60-071-13) (11 pages).

Post-judgment interest -Insurance

An insurance company that issued a$100,000 auto policy must pay post-judg-ment interest on the entire amount of theplaintiffs’ $6 million jury award, the 1st U.S.Circuit Court of Appeals determines.

Vázquez-Filippetti, et al. v. Cooperativa deSeguros Múltiples de Puerto Rico, et al.(Lawyers Weekly No. 01-172-13) (13 pages).

Pre-judgment interest - Counsel fees

A plaintiff insurance company is not enti-tled to pre-judgment interest on thecounsel fees and costs incurred in its law-suit to enforce an indemnity agreementagainst the defendants, a U.S. DistrictCourt judge says.

Selective Insurance Company of America v.CMG, Inc., et al. (Lawyers Weekly No. 52-062-13) (4 pages).

Pre-judgment interest - DepositA judgment ordering the return of theplaintiffs’ deposit following a failed resi-dential real estate transaction should nothave included pre-judgment interest, asthe return of the plaintiffs’ deposit doesnot fall within the category of “pecuniarydamages” under G.L. §9-21-10(a), theRhode Island Supreme Court rules.

Andrews, et al. v. Plouff (Lawyers WeeklyNo. 60-092-13) (8 pages).

Pre-judgment interest - Medical malpractice

A state statute (G.L. §9-21-10(b)) — man-dating pre-judgment interest at a rate of 12percent on pecuniary damages in medical-malpractice actions — is not unconstitution-al, the Rhode Island Supreme Court states.

Oden, et al. v. Schwartz (Lawyers WeeklyNo. 60-078-13) (32 pages).

Complaints filed in U.S. District CourtDEC. 23Petaway v. Porter, et al.Docket No. 1:2013cv00794Civil rights suit

Gaudreau, et al. v. Harleysville WorcesterInsurance Company

Docket No. 1:2013cv00796Insurance suit

Manzotti v. e City of Providence, et al.Docket No. 1:2013cv00795Fair Labor Standards Act suit

DEC. 26Linde v. WallDocket No. 1:2013cv00798Habeas corpus proceeding

Tillinghast v. Sousa, et al.

Docket No. 1:2013cv00797Civil rights suit

Motion Picture Projectionists, AudioVisual Engineers & ComputerTechnicians, Local 110, L.A.T.S.E., etal. v. Altman, et al.

Docket No. 1:2013cv00800ERISA suit

TPC Hotels LTD v. YoungDocket No. 1:2013cv00799Negotiable instrument suit

DEC. 27Adams, et al. v. Melnick, D.O., et al.Docket No. 1:2013cv00802Civil rights suit

Astacio v. USADocket No. 1:2013cv00801Habeas corpus proceeding

Dec. 23 - 27

CRIMINALContinued from page 5

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DOMESTICRELATIONS

Divorce - Health insuranceA provision in a settlement agreement re-quiring a divorced man to maintain healthinsurance for his former wife remainedbinding despite the fact that he had remar-ried and was enrolling his new spouse inhis health insurance plan, the Rhode IslandSupreme Court holds.

O’Donnell v. O’Donnell (Lawyers WeeklyNo. 60-141-13) (12 pages).

Divorce - Life insuranceEven though a property settlement agree-ment required a divorced father to main-tain life insurance for the benefit of his mi-nor children, the funds from his lifeinsurance policy should be distributed to acustodial trustee in accordance with a serv-ice request form executed before his death,the Rhode Island Supreme Court concludes.

Miller v. Saunders, et al. (Lawyers WeeklyNo. 60-152-13) (11 pages).

EDUCATION

‘Horseplay’Rather than hold schools to the standard ofbeing insurers of their students’ safety, aplaintiff seeking to hold a school liable forinjuries resulting from the acts of anotherstudent must show that such acts could havebeen reasonably foreseen by the school, theRhode Island Supreme Court says.

Daniels v. Fluette, et al. (Lawyers WeeklyNo. 60-055-13) (12 pages).

EMPLOYMENT

Age discriminationA comment by a defendant employer’s vicepresident of sales — about “the need to re-energize [a] sales team” — does not consti-tute direct evidence of discriminatory ani-mus on the basis of age, the 1st U.S. CircuitCourt of Appeals concludes.

Woodward v. Emulex Corporation, et al.(Lawyers Weekly No. 01-096-13) (17 pages).

ContractA plaintiff sales representative’s employ-ment status was not altered from at-will tocontractual based on (1) a series of e-mailsfrom the defendant employer constituting“general expressions of job longevity” or (2)assurances that the employer allegedly gaveto him about his continued employment,the 1st U.S. Circuit Court of Appeals finds.

Bisbano v. Strine Printing Co., Inc., et al.(Lawyers Weekly No. 01-302-13) (18 pages).

Discrimination - AssignmentAn assignment of employment discrimina-tion claims to a plaintiff is invalid in thatthe plaintiff does not allege that he per-sonally has suffered any discrimination atthe hands of the defendants, a U.S. DistrictCourt judge holds.

Prystawik v. BEGO USA, et al. (LawyersWeekly No. 52-068-13) (8 pages).

Discrimination - Gender - LiftingA respondent employer committed sex dis-crimination by allowing only male mainte-nance department employees to lift any-thing heavier than 10 pounds, the RhodeIsland Commission for Human Rights finds.

Gulley v. National Wholesale Liquidators(Lawyers Weekly No. 71-002-13) (9 pages).

Drug testing - Individual liabilityAn employer’s agents cannot be held liablefor violations of the Drug Testing Statute, aSuperior Court judge holds.

Alves, et al. v. Cintas Corporation No. 2, et al.(Lawyers Weekly No. 61-120-13) (22 pages).

FMLAA plaintiff could not hold the defendantemployer liable for failing to notify himabout eligibility under the Family and Med-ical Leave Act, as “nothing was lost, norwas any harm suffered, by reason of the al-leged violations,” the 1st U.S. Circuit Courtof Appeals states.

McArdle v. Town of Dracut/Dracut PublicSchools, et al. (Lawyers Weekly No. 01-262-13) (18 pages).

HarassmentAn award of summary judgment for anemployer in a Title VII case must be af-firmed absent evidence that the employeeinformed a supervisor that the harassmentshe was complaining of was sex-based, the1st U.S. Circuit Court of Appeals holds.

Medina-Rivera, et al. v. MVM, Inc. (LawyersWeekly No. 01-087-13) (19 pages).

Harassment - RetaliationA respondent who explicitly tied sexual fa-vors to conditions in the workplace shouldbe ordered to pay the complainant lostwages plus $75,000 as compensatory dam-ages for pain and suffering, the Rhode Is-land Commission for Human Rights decides.

Korsak v. Frigault (Lawyers Weekly No. 71-001-13) (16 pages).

OvertimeA 2011 amendment to G.L. §28-12-4.1(a)did not impliedly repeal the overtime paystatute’s motor carrier exemption, a Superi-or Court judge finds.

Frito-Lay, Inc. v. Rhode Island Departmentof Labor and Training, et al. (LawyersWeekly No. 61-071-13) (25 pages).

Retaliation - FLSAA defendant employer, having fired aplaintiff skycap who was pursuing a lawsuitunder the Fair Labor Standards Act, shouldnot have been awarded summary judg-ment despite evidence that the plaintiff so-licited a tip from a customer in violation ofcompany policy, the 1st U.S. Circuit Court ofAppeals holds.

Travers v. Flight Services & Systems, Inc.(Lawyers Weekly No. 01-310-13) (14 pages).

Retaliation - Pretext -Insubordination

An award of summary judgment for a de-fendant, on a retaliation claim brought un-der the Americans with Disabilities Act by aplaintiff licensed practical nurse, must be

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vacated because of a genuine dispute ofmaterial fact as to whether the employer’sstated reason for the nurse’s termination —insubordination — was a pretext for retal-iatory animus, the 1st U.S. Circuit Court ofAppeals concludes.

Kelley v. Correctional Medical Services, Inc.(Lawyers Weekly No. 01-038-13) (22 pages).

Unpaid wagesA hospital’s collective bargaining agree-ments do not foreclose claims by employ-ees under the Fair Labor Standards Act forrecovery of unpaid wages, the 1st U.S. Cir-cuit Court of Appeals rules.

Manning, et al. v. Boston Medical CenterCorporation, et al. (Lawyers Weekly No. 01-200-13) (65 pages).

Unused vacation timeA provision in a high school principal’s em-ployment agreement — requiring that shebe employed for 10 years before becomingeligible for any vacation time payout — isunenforceable under G.L. §28-14-4(b), a Su-perior Court judge determines.

DiCenso v. Newport School Committee, etal. (Lawyers Weekly No. 61-184-13) (9pages).

USERRA - PromotionUnder the Uniformed Services Employmentand Reemployment Rights Act, the appro-priate inquiry in determining the properreemployment position for a returning ser-vicemember is not whether an advance-ment or promotion was automatic, butrather whether it was reasonably certainthat the returning servicemember wouldhave attained the higher position but forhis absence due to military service, the 1stU.S. Circuit Court of Appeals says.

Rivera-Meléndez v. Pfizer Pharmaceuticals,LLC (Lawyers Weekly No. 01-240-13) (20pages).

ENVIRONMENTALCWA - Notice

If the information contained in pre-suit no-tice under the Clean Water Act identifiesthe potential plaintiffs, provides basic con-tact information and allows the putativedefendants to identify and remedy the al-leged violations, the statutory require-ments have been satisfied and an enforce-ment action may proceed, the 1st U.S.Circuit Court of Appeals says.

Paolino, et al. v. JF Realty, LLC, et al.(Lawyers Weekly No. 01-060-13) (22 pages).

CWA - Prior ownerAn individual named as a defendant in aClean Water Act citizen suit is not entitledto dismissal despite his assertion that he isno longer the owner of an automobile sal-vage business allegedly responsible for con-taminated runoff, a U.S. District Courtjudge rules.

Paolino, et al. v. JF Realty, et al. (LawyersWeekly No. 52-089-13) (11 pages).

EVIDENCEAffidavits - Oath

A jury verdict awarding damages for per-sonal injuries a plaintiff suffered after aschool bus that she was operating fell intoa sinkhole on a Providence roadway shouldbe upheld, as medical affidavits were prop-erly admitted despite the fact that they didnot explicitly state that they were “sub-scribed to and sworn under the penaltiesof perjury,” the Rhode Island SupremeCourt determines.

Morel v. Napolitano (Lawyers Weekly No.60-071-13) (11 pages).

Confrontation - Audio playbackThe constitutional rights of two defendantswere not violated when certain audiorecordings were played back for the juryoutside of the defendants’ presence, the1st U.S. Circuit Court of Appeals rules.

United States v. Monserrate-Valentín, et al.(Lawyers Weekly No. 01-235-13) (64 pages).

Confrontation - CertificationsA criminal defendant’s constitutional rightto confront his accusers was not violated bythe admission into evidence of a comman-der’s certifications to establish that a vesselwas subject to the jurisdiction of the Unit-ed States, the 1st U.S. Circuit Court of Ap-peals holds.

United States v. Nueci-Peña (Lawyers Week-ly No. 01-065-13) (19 pages).

Confrontation - Forensic examiner

A trial judge’s decision to allow a forensicexaminer to testify about another examin-er’s prior examination of a seized laptopcomputer did not affect the defendant’ssubstantial rights, the 1st U.S. Circuit Courtof Appeals determines.

United States v. Soto (Lawyers Weekly No.01-153-13) (17 pages).

Deposition - EPA attorneyThe plaintiff in a CERCLA case should notbe allowed to depose an EnvironmentalProtection Agency attorney, as the topics ofinquiry have been covered by voluminousdiscovery to date, have been the subject ofdeposition testimony already taken orcould be provided more easily by anotherwitness in the future, a U.S. District Courtjudge concludes.

Emhart Industries, Inc. v. New England Con-tainer Company, Inc., et al. (Lawyers Week-ly No. 52-134-13) (11 pages).

Discovery - AsbestosInformation relating to claims submitted bythe plaintiff to asbestos bankruptcy trustson behalf of her late husband should besubjected to an in camera review to deter-mine if the evidence is properly discover-able, a Superior Court judge decides.


Discovery - DatabasePlaintiffs, a putative class of scrap metaldealers, have not made a sufficient show-ing to warrant an order (1) granting theplaintiffs’ retained computer consultantimmediate access to and imaging of thedefendant’s computer database and (2) re-quiring the defendant pay for all of theconsultant’s work, a U.S. magistrate judgeconcludes.

Innercity Recycling Service LLC, et al. v.SMM New England Corporation (LawyersWeekly No. 54-067-13) (4 pages).

Discovery - Work productThe work product doctrine does not relievethe defendants in an asbestos liability suitfrom producing photos and video footagethey took at a site inspection, a SuperiorCourt judge rules.

Cary v. 3M Company, et al. (Lawyers WeeklyNo. 61-180-13) (13 pages).

Hearsay - AffidavitInterview transcripts with a witness to anindustrial accident should not be strickenon hearsay grounds, as the witness execut-ed an affidavit swearing to the truth of thestatements contained in those transcripts, aU.S. District Court judge decides.

Matias, et al. v. Amex, Inc. (Lawyers WeeklyNo. 52-027-13) (19 pages).

Hearsay - Insurance claimA document submitted to an insurancecompany was properly excluded at a negli-gence trial arising out of an automobile ac-cident, as there was not sufficient evidencethat the document was reliable so as toqualify as a business record, the Rhode Is-land Supreme Court holds.

Martin v. Lawrence, et al. (Lawyers WeeklyNo. 60-151-13) (15 pages).

Mental health records - WitnessIn denying a murder witness’s motion toquash a subpoena for his mental healthrecords, a Superior Court judge erred un-der G.L. §5-37.3-6.1 by not analyzingwhether the need for the informationclearly outweighed the privacy interest ofthe witness, the Rhode Island SupremeCourt concludes.

DePina v. State (Lawyers Weekly No. 60-154-13) (11 pages).

Peer review privilegeThe peer review privilege does not protectfrom disclosure a case review in the posses-sion of by the “Executive Committee” of auniversity’s Health Services Quality Im-provement Committee, a Superior Courtjudge states.

Hall v. Shiff, et al. (Lawyers Weekly No. 61-094-13) (12 pages).

Photographs - TattoosA trial judge committed no abuse of discre-tion by admitting into evidence photo-graphs showing a defendant’s tattoos anddepicting his face “in a ‘scruffy’ and di-sheveled condition,” the Rhode IslandSupreme Court finds.

State v. Delarosa (Lawyers Weekly No. 60-029-13) (10 pages).

Police - Interrogatories - Civilian complaints

A plaintiff claiming to have been injured inan encounter with officers following hisprotest of their conduct in arresting anoth-er individual is entitled to production ofthe Providence Police Department’s civiliancomplaint files for the last three years, aU.S. magistrate judge determines.

Costa v. Rasch, et al. (Lawyers Weekly No.54-019-13) (12 pages).

Proffer session - Voice recognition

Voice identification testimony from a po-lice officer based on what the officer heardat a proffer session should have been ex-cluded in light of the prosecution’s promisenot to use against the defendant any“statements made or other information”disclosed at the proffer session, the 1st U.S.Circuit Court of Appeals holds.

United States v. Melvin (Lawyers WeeklyNo. 01-238-13) (23 pages).

SpoliationA defendant corporation in a wrongfuldeath suit engaged in spoliation of evi-dence when it failed to institute a “litiga-tion hold” and allowed internal emails tobe deleted pursuant to its routine policy, aSuperior Court judge finds.

Berrios v. Jevic Transportation, Inc., et al.(Lawyers Weekly No. 61-018-13) (41 pages).

SpoliationThere is no recognized cause of action inRhode Island for the intentional or negli-gent destruction of evidence, a SuperiorCourt judge states.

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Laurent v. St. Michael’s Country Day School(Lawyers Weekly No. 61-083-13) (18 pages).

Spoliation - EmailsA motion for restoration of deleted emailsshould be denied, as (1) the deleted emails,which now exist only on backup tapes, arenot reasonably accessible because of undueburden and cost and (2) the plaintiffs havenot met their burden of establishing goodcause to justify court-ordered restorationof the email accounts from the backuptapes, a U.S magistrate judge determines.

Cassie M., et al. v. Chafee, et al. (LawyersWeekly No. 54-057-13) (16 pages).

Work product doctrine -PowerPoint slides

A defendant paint company’s motion fora protective order to prohibit the disclo-sure and use of an internal company doc-ument — consisting of three PowerPointslides extracted from an 80-slide presenta-tion — should have been allowed on theground that the document constituteswork product, the Rhode Island SupremeCourt concludes.

State v. Lead Industries Association, Inc.(Lawyers Weekly No. 60-072-13) (28 pages).

FRAUDFalse Claims Act

In dismissing a qui tam action under theFalse Claims Act, a federal judge actedproperly based on a provision in thestatute limiting the court’s subject matterjurisdiction to those claims as to which arelator has “direct and independentknowledge,” the 1st U.S. Circuit Court ofAppeals concludes.

United States ex rel. Duxbury v. OrthoBiotech Products, L.P. (Lawyers Weekly No.01-143-13) (20 pages).

False Claims Act - DrugsA relator’s qui tam complaints under theFalse Claims Act were properly dismissedfor failure to allege specifically how the de-fendant’s nondisclosure of the risks associ-ated with four of its drugs resulted in thesubmission of false claims for governmentpayment, the 1st U.S. Circuit Court of Ap-peals rules.

United States ex rel. Ge v. Takeda Pharma-ceutical Company Limited, et al. (LawyersWeekly No. 01-305-13) (27 pages).

False Claims Act - First-to-file ruleA first-filed qui tam complaint under theFalse Claims Act need not meet the height-ened pleading standards of Rule 9(b) in or-der to bar a later-filed complaint, the 1stU.S. Circuit Court of Appeals says.

United States ex rel. Heineman-Guta v.Guidant Corporation, et al. (Lawyers Week-ly No. 01-137-13) (23 pages).

Obstetrical journal - Case reportTwo plaintiffs who lost jury trials in theirmedical malpractice cases could not hold li-able the authors and publisher of an al-legedly false medical journal case studythat was introduced into evidence by de-fense counsel during the trials, the 1st U.S.Circuit Court of Appeals rules.

A.G., et al. v. Elsevier, Inc., et al. (LawyersWeekly No. 01-267-13) (13 pages).

HABEAS CORPUSAlibi witness

A petition must be granted habeas corpusrelief because the trial court’s improperlimitation of a defense alibi witness’s testi-mony violated the petitioner’s SixthAmendment compulsory process clauserights, a U.S. District Court judge holds.

Ferrell v. Wall (Lawyers Weekly No. 52-008-13) (24 pages).

IMMIGRATIONMotion to reconsider

An alien whose application for withholdingof removal has been denied by the Boardof Immigration Appeals may not proffer, asthe basis for a motion to reconsider, aground for relief which, though previouslyavailable, was not previously asserted, the1st U.S. Circuit Court of Appeals holds.

Martinez-Lopez v. Holder (Lawyers WeeklyNo. 01-005-13) (9 pages).

Persecution - Daughters - FGMA petitioner who has been ordered re-moved to Guinea could not establish perse-cution based on his future opposition tothe possible female genital mutilation ofhis daughters if he took them with him toGuinea, the 1st U.S. Circuit Court of Ap-peals concludes.

Camara v. Holder (Lawyers Weekly No. 01-196-13) (12 pages).

Persecution - Withholding of removal

An order denying an application for with-holding of removal, filed by an attorneyfrom Pakistan, must be vacated based onevidence that he was subjected to threatsand violence that rose to the level of pastpersecution over a case stemming from aconflict between rival political factions, the1st U.S. Circuit Court of Appeals holds.

Javed v. Holder (Lawyers Weekly No. 01-133-13) (14 pages).

Removal - Motion to reopen -‘Post-departure bar’

The “post-departure bar” regulation (8C.F.R. §1003.2(d)), which precludes a noncit-izen from filing a motion to reopen a re-moval proceeding “subsequent to his orher departure from the United States,”conflicts with the clear language of the im-migration statute (8 U.S.C. §1229a(c)(7)),which grants “[a]n alien” the right to file asingle motion to reopen, the 1st U.S. CircuitCourt of Appeals states.

Perez Santana v. Holder (Lawyers WeeklyNo. 01-248-13) (26 pages).

INSURANCEAgency - Negligence

A defendant insurance agency is entitled tosummary judgment on a plaintiff policy-holder’s negligence claim, as the agencydid not have a special duty to ensure that

an insurance company issued the correctpolicy to the plaintiff, a U.S. District Courtjudge concludes.

Northfield Insurance Company v. Sanders v.Troy, Pires & Allen, et al. (Lawyers WeeklyNo. 52-136-13) (12 pages).

Dust - Pollution exclusion clauseA pollution exclusion clause in a commer-cial general liability policy does not relievethe insurer from its duty to defend the pol-icyholder, which has been sued over an ac-cumulation of stone dust allegedly causedby the policyholder’s a rock-crushing andloam-screening business, a Superior Courtjudge says.

Employers Mutual Casualty Company v. ELJ,Inc., et al. (Lawyers Weekly No. 61-073-13)(7 pages).

Flood - Proof of lossA judgment in favor of the holder of aflood insurance policy must be reversed tothe extent that the judgment was based onan adjuster’s $212,071.32 estimate that wasnot “signed and sworn to” by the policy-holder as required by federal regulations,the 1st U.S. Circuit Court of Appeals de-cides.

DeCosta v. Allstate Insurance Company(Lawyers Weekly No. 01-243-13) (26 pages).

Health plan - IVFA defendant health insurance provider didnot abuse its discretion by denying cover-age for a procedure using in vitro fertiliza-tion procedure to ensure a disease-freebone marrow match for the plaintiff poli-cyholders’ daughter, a U.S. District Courtjudge concludes.

Ho-Rath, et al. v. Tufts Associated HealthMaintenance Organization, Inc. (LawyersWeekly No. 52-129-13) (14 pages).

Limitations - UM/UIMA cause of action under the uninsured/un-derinsured motorist provision in an auto in-surance policy does not accrue until the in-surer denies a claim or clearly rejects ademand for payment or arbitration underthe policy, the Rhode Island Supreme Courtstates.

American States Insurance Company v.LaFlam (Lawyers Weekly No. 60-124-13) (25pages).

LTD benefits - Risk of relapseA defendant insurance company acted ar-bitrarily and capriciously in refusing to con-sider whether an insured’s risk of relapseinto substance dependence swelled to thelevel of a disability, the 1st U.S. CircuitCourt of Appeals finds.

Colby v. Union Security Insurance Company& Management Company for MerrimackAnesthesia Associates Long Term DisabilityPlan, et al. (Lawyers Weekly No. 01-018-13)(24 pages).

Misrepresentation - Corporateliability coverage

Neither a “contract” exclusion nor a“fraud” exclusion in a corporation’s insur-ance policy entitle the insurer to summaryjudgment on the issue of the insurer mustprovide indemnification following a juryverdict holding the policyholder liable forits employee’s misrepresentations duringthe negotiation and execution of an assetpurchase agreement, a U.S. District Courtjudge concludes.

TranSched Systems Limited v. Federal Insur-ance Company (Lawyers Weekly No. 52-097-13) (12 pages).

Mutual rescissionA judge was correct in finding mutual rescis-sion of an insurance policy based on the factthat the defendant trustee cashed a checktendered by the plaintiff insurer company inthe amount of the policy premiums paid(plus interest) along with a letter clearlystating that the purpose of the check was toeffect rescission of the policy, the 1st U.S.Circuit Court of Appeals concludes.

Pruco Life Insurance Company v. Wilming-ton Trust Company, et al. (Lawyers WeeklyNo. 01-156-13) (22 pages).

Proceeds - CausationPlaintiffs from whom insurance proceedswere misappropriated could not hold thedefendant insurance company liable formaking out the insurance proceeds checkto the wrong trust entity, as the moneywould have been stolen even if the checkhad been made out correctly, the 1st U.S.Circuit Court of Appeals determines.

Jakobiec, et al. v. Merrill Lynch Life Insur-ance Co. (Lawyers Weekly No. 01-071-13)(21 pages).

Rescission - False representationsA judgment allowing a plaintiff insurancecompany to rescind a life insurance policyand retain the premium should be af-firmed, as the lower court “committed noerrors of law, did not err in finding that theplaintiff was a victim of a fraudulent insur-ance scheme, and appropriately exercisedits equity powers,” the 1st U.S. CircuitCourt of Appeals holds.

PHL Variable Insurance Company v. The P.Bowie 2008 Irrevocable Trust (LawyersWeekly No. 01-121-13) (26 pages).

SIR endorsement - Nursing facility

Rhode Island healthcare providers are pre-cluded from self-insuring unless and untilthe Department of Business Regulationpromulgates regulations that expresslymake provision for self-insurance byhealthcare providers, the Rhode IslandSupreme Court holds.

Peloquin v. Haven Health Center ofGreenville, LLC, et al. (Lawyers Weekly No.60-010-13) (20 pages).

Subrogation - Truck ownerAn insurance company, having compensat-ed a homeowner for damage to his housethat the homeowner himself caused whiledriving a company-owned truck, couldbring a subrogation action against thecompany that owned the truck, the RhodeIsland Supreme Court holds.

Nationwide Property & Casualty InsuranceCompany v. D.F. Pepper Construction, Inc.(Lawyers Weekly No. 60-023-13) (10 pages).

UM benefits - Bad faithA defendant insurance company’s motionto dismiss a complaint filed by the plaintifffather of a deceased motorcyclist must bedenied because the plaintiff has succeededin raising a number of issues regardingwhether the underinsured motorist provi-sion in the motorcyclist’s policy is invalidunder the law, a Superior Court judgerules.

Foote v. GEICO Indemnity Company(Lawyers Weekly No. 61-027-13) (27 pages).

JUDGESRecusal

A defendant’s motion for judicial recusalmust be denied, as the judge’s assessment

EVIDENCEContinued from page 8

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of witness credibility — in considering aprior motion for a new trial filed by a code-fendant — in no way establishes the requi-site antagonism or personal animus to war-rant recusal, a Superior Court judge holds.

State v. Uhlmann (Lawyers Weekly No. 61-161-13) (13 pages).

‘Revolving door’ - Department of Administration

The director of the Rhode Island Depart-ment of Administration is not prohibitedby the “revolving door” provision of theCode of Ethics, G.L. §36-14-5(o)(1), fromseeking or accepting an appointment tothe Superior Court, the Ethics Commissiondetermines.

In Re: Licht, Richard A. (Lawyers Weekly No.74-031-13) (7 pages).

JURISDICTIONChoice of law - Insurance -

Bad faithThe law of Massachusetts, not Rhode Is-land, controls a lawsuit brought by aRhode Island plaintiff against an insurancecompany that issued an auto policy to aMassachusetts driver, a U.S. District Courtjudge determines.

Charette v. Commerce Insurance Company(Lawyers Weekly No. 52-017-13) (5 pages).

DiversityA federal statute — 28 U.S.C. §1367(b) —does not strip a U.S. District Court of juris-diction over third-party claims made by de-fendants against non-diverse partiesbrought into a case pursuant to Rule 14 ofthe Federal Rules of Civil Procedure, the 1stU.S. Circuit Court of Appeals holds.

Allstate Interiors & Exteriors, Inc. v. Ston-estreet Construction, LLC v. Weybosset Ho-tel, LLC (Lawyers Weekly No. 01-241-13) (19pages).

Federal - Abstention -Declaratory judgment

A declaratory judgment action — filed byan insurance company denying the appli-cability of commercial general liability poli-cy — should not be stayed on abstentiongrounds, as the exercise of federal jurisdic-tion will promote practicality and wise ju-dicial administration, a U.S. magistratejudge states.

Essex Insurance Company v. Gilbert Enter-prises, Inc., et al. (Lawyers Weekly No. 54-051-13) (13 pages).

Federal - Domestic relationsA complaint requesting a restraining orderand preliminary injunction against enforce-ment of a state court order for the returnof the plaintiff’s child should be dismissedaccording to the domestic relations excep-tion to federal jurisdiction, a U.S. magis-trate judge states.

Cole v. Demina, et al. (Lawyers Weekly No.54-061-13) (3 pages).

Foreign Sovereign Immunities Act

A U.S. District Court judge properly exer-cised jurisdiction over a breach of contractaction against a foreign sovereign and twoof its agencies and instrumentalities, astheir alleged failure to pay for asset recov-ery work performed by a private entityconstitutes commercial activity exemptfrom immunity under the Foreign Sover-

eign Immunities Act, the 1st U.S. CircuitCourt of Appeals rules.

Universal Trading & Investment Co., Inc., etal. v. Bureau for Representing Ukrainian In-terests in International and Foreign Courts,et al. (Lawyers Weekly No. 01-208-13) (37pages).

Personal - AsbestosA motion to dismiss for lack of personal ju-risdiction cannot be decided absent discov-ery into whether the defendant took delib-erate and voluntary actions to send itsproducts into Rhode Island, a SuperiorCourt judge says.

Cary v. American Optical Corporation, et al.(Lawyers Weekly No. 61-171-13) (11 pages).

Personal - RoyaltiesA Rhode Island plaintiff’s allegation that itsuffered lost royalties as the result of a Texas-based defendant’s tortious interference withcontractual and advantageous business rela-tions is insufficient to justify the exercise ofpersonal jurisdiction over the defendant, aU.S. magistrate judge determines.

Daniels Agrosciences, LLC v. Ball DPF, LLC(Lawyers Weekly No. 54-049-13) (25 pages).

Personal - Website - Law firmA legal malpractice complaint, filed by aRhode Island plaintiff who decided to re-tain the defendant Texas attorneys afterfinding their website, should not be dis-missed for lack of personal jurisdiction, aU.S. District Court judge determines.

Dennett v. Archuleta, et al. (Lawyers Week-ly No. 52-003-13) (15 pages).

Removal - Remand - InsuranceAn insurance dispute removed from statecourt should be remanded because theplaintiff is only seeking the $54,720 in ben-efits due her under the policies, an amountbelow the $75,000 amount-in-controversyrequirement of 28 U.S.C. §1332(a), a U.S.District Court judge determines.

Porter v. American Heritage Life InsuranceCompany (Lawyers Weekly No. 52-094-13)(11 pages).

Removal - Remand - InsuranceAn insurance coverage dispute that hasbeen removed to federal court should beremanded to Superior Court based on alack of evidence that two defendants werefraudulently joined in order to defeat di-versity jurisdiction, a U.S. magistrate judgedetermines.

Peerless Insurance Company, et al. v.Philadelphia Insurance Company, et al.(Lawyers Weekly No. 54-025-13) (8 pages).

Subject matterA contract dispute governed by state law isinappropriate for federal jurisdiction, asthe parties’ dispute does not “involve atrue risk to the interests of a federalagency, program, or statutory scheme,” the1st U.S. Circuit Court of Appeals holds.

Municipality of Mayagüez v. CorporaciónPara el Desarrollo del Oeste (LawyersWeekly No. 01-206-13) (20 pages).

Tax creditA Superior Court appeal involving a historicstructure tax credit must be dismissed, asthe District Court has jurisdiction over ap-peals from final decisions of the Tax Ad-ministrator, a Superior Court judge decides.

Labonte v. New England Development RI,LLC (Lawyers Weekly No. 61-114-13) (9pages).

Tribal exhaustionA suit against the defendant NarragansettIndian Tribe by a plaintiff attorney claimingto be owed more than $1.1 million for hisservices should be stayed based on the trib-al exhaustion doctrine, a U.S. District Courtjudge determines.

Luckerman v. Narragansett Indian Tribe(Lawyers Weekly No. 52-111-13) (14 pages).

JURY AND JURORSPeremptory challenges -

Asian-AmericansA trial judge did not clearly err in allowingthe prosecutor’s peremptory challenges totwo Asian-American potential jurors at atrial on a charge of unlawful procurementof naturalization in violation of 18 U.S.C.§1425(a), the 1st U.S. Circuit Court of Ap-peals concludes.

United States v. Mensah (Lawyers WeeklyNo. 01-311-13) (53 pages).

LABORAbstention - Preemption

A U.S. District Court judgment — dismissinga corporation’s complaint against theRhode Island Department of Labor andTraining and union members who claimedunemployment benefits following a large-scale work stoppage — must be affirmedon abstention grounds, the 1st U.S. CircuitCourt of Appeals concludes.

Verizon New England, Inc. v. Rhode Island

Department of Labor and Training, et al.(Lawyers Weekly No. 01-176-13) (13 pages).

Fringe benefit contributionsA U.S. District Court judge did not err inincluding interest and counsel fees in a fi-nal judgment against a defendant compa-ny that failed to make fringe benefit con-tributions to union members’ pensionfunds, the 1st U.S. Circuit Court of Ap-peals concludes.

Enos v. Union Stone, Inc. (Lawyers WeeklyNo. 01-265-13) (11 pages).

Police - PensionA “round-up rule” in a collective bargain-ing agreement — allowing a police officerto be credited for 20 years of service afterworking 19 years, six months and one day— is in contravention of state law andcannot be enforced, a Superior Courtjudge concludes.

City of Cranston v. International Brother-hood of Police Officers, Local 301 (LawyersWeekly No. 61-132-13) (27 pages).

Standing - RetireesAn arbitration award, in favor of a unionthat had filed a grievance over health in-surance for retired teachers, was correctlyvacated in Superior Court on the groundthat neither a collective bargaining agree-ment nor Rhode Island case law permitsthe union to pursue a grievance on behalfof retirees, the Rhode Island SupremeCourt rules.

Providence School Board v. Providence

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Teachers Union, Local 958, AFT, AFL-CIO(Lawyers Weekly No. 60-110-13) (14 pages).

LANDLORD AND TENANTPenalty - Waiver

A commercial landlord waived its right toenforce a lease provision imposing doublethe amount of rent on a holdover tenant,as the landlord invoiced and then uncondi-tionally accepted an amount less than itwould be entitled to under that provision,a Superior Court judge concludes.

Renaissance Development Corporation v.Airport Valet, Inc. (Lawyers Weekly No. 61-193-13) (18 pages).

Slip and fall - Ice - Commercial space

A defendant out-of-state lessor of RhodeIsland commercial space cannot be held li-able to a plaintiff who was injured on anicy surface, as the plaintiff failed to demon-strate that the defendant owed a duty ofcare to the invitees of its tenant, the RhodeIsland Supreme Court rules.

Berard v. HCP, Inc. (Lawyers Weekly No. 60-076-13) (9 pages).

LICENSES AND PERMITSCommercial fishing

The Rhode Island Department of Environ-mental Management did not contravenestate law or violate a plaintiff’s right todue process and equal protection by limit-ing his commercial fishing license to theuse of three lobster traps, a Superior Courtjudge finds.

Goldberg v. Department of EnvironmentalManagement, et al. (Lawyers Weekly No.61-164-13) (46 pages).

Fine - Appeal - DBRThe Department of Business Regulationmust articulate and document a substan-tial, non-arbitrary rationale for invoking itsdiscretion to dismiss appeals of fines im-posed by local licensing boards, a SuperiorCourt judge states.

The Rack, Inc. v. Providence Board of Li-

censes, et al. (Lawyers Weekly No. 61-133-13) (19 pages).

Fine - ContractorA $3,000 fine imposed on a contractor wholeft a home improvement project unfin-ished “represents merely one-fifth of thestatutory maximum penalty available” andconsequently was not excessive, a SuperiorCourt judge finds.

Ribeiro v. State (Lawyers Weekly No. 61-107-13) (21 pages).

MORTGAGESAssignment - Foreclosure

A defendant mortgage assignee was au-thorized to exercise the statutory power ofsale in the mortgage and to foreclose onthe plaintiff’s property despite the as-signee’s failure to record a trust instrumentor memorandum of trust under G.L. §34-4-27, a Superior Court judge holds.

Van Hoecke v. First Franklin Financial Cor-poration, et al. (Lawyers Weekly No. 61-045-13) (12 pages).

Assignment - ForeclosureThe nominee of a mortgage lender couldconduct a foreclosure sale even though thenominee was not the promissory noteholder, the Rhode Island Supreme Courtstates.

Bucci, et al. v. Lehman Brothers Bank, FSB,et al. (Lawyers Weekly No. 60-049-13) (33pages).

Assignment - StandingHomeowners in Rhode Island have stand-ing to challenge the assignment of mort-gages on their homes to the extent neces-sary to contest the foreclosing entity’sauthority to foreclose, the Rhode IslandSupreme Court says.

Mruk v. Mortgage Electronic RegistrationSystems, Inc., et al. (Lawyers Weekly No. 60-157-13) (18 pages).

Foreclosure sale - Eviction - Legal title

A trespass and ejection action, commencedby the plaintiff purchaser at a foreclosureauction, must be dismissed because theplaintiff did not hold legal title when itsent the defendant notice of the termina-tion of her tenancy by sufferance, a Superi-or Court judge rules.

USA Residential Properties LLC v. Dilibero(Lawyers Weekly No. 61-060-13) (10 pages).

Injunction - StayA blanket injunction staying mortgageforeclosure litigation must be dissolved be-cause the borrowers are not likely to suc-ceed on the legal issues that are commonto most of the cases on the consolidateddocket, a U.S. District Court judge decides.

In Re: Mortgage Foreclosure Cases (LawyersWeekly No. 52-110-13) (8 pages).

Recording - AssignmentsRhode Island law does not require that allmortgages and mortgage assignments berecorded, a U.S. District Court judge says.

Town of Johnston v. MERSCORP, Inc., et al.(Lawyers Weekly No. 52-085-13) (11 pages).

Res judicataPlaintiffs whose Superior Court complaintagainst a defendant mortgage lender wasdismissed are barred from bringing a feder-al suit against the same defendant despitethe fact that the federal complaint con-tains a new claim for punitive damages, aU.S. District Court judge concludes.

Cooke, et al. v. Mortgage Electronic Regis-tration Systems, Inc., et al. (Lawyers WeeklyNo. 52-072-13) (6 pages).

SanctionsAn attorney representing borrowers shouldbe sanctioned a total of $10,000 for sub-mitting to the court on four occasions adocument that contained a false assertion,a U.S. District Court judge decides.

Sousa, et al. v. Mortgage Electronic Regis-tration Systems, Inc., et al. (Lawyers WeeklyNo. 52-104-13) (21 pages).

Standing - Assignments1st Circuit precedents — holding that ahomeowner’s standing under Massachusettslaw to challenge a mortgage assignment isnot foreclosed by virtue of the homeowner’slack of privity to the assignment documents— are equally applicable in Rhode Island, aU.S. District Court judge says.

Cosajay v. Mortgage Electronic RegistrationSystems, Inc., et al. (Lawyers Weekly No. 52-132-13) (11 pages).

Stay - Notice - HearingA U.S. District Court hearing with reason-able notice must be held on the question

of whether a preliminary injunction againstforeclosure and possessory proceedingsshould be continued, the 1st U.S. CircuitCourt of Appeals holds.

Fryzel, et al. v. Mortgage Electronic Regis-tration Systems, Inc., et al. (Lawyers WeeklyNo. 01-144-13) (15 pages).

Trust summaryA failure to record a trust instrument upontransfer of trust property as required byG.L. §34-4-27 does not invalidate or voidthat transfer, a Superior Court judge holds.

Deutsche Bank National Trust Company v.Monegro, et al. (Lawyers Weekly No. 61-022-13) (13 pages).

MOTOR VEHICLESDefault judgment - Failure to appear

A default judgment — entered against anappellant who failed to appear for a courthearing because he was receiving medicalcare at his home — must be vacated andthe appellant afforded the opportunity topresent evidence and testimony at trial, theTraffic Tribunal holds.

Town of Westerly v. Cardile (Lawyers Week-ly No. 75-034-13) (7 pages).

RefusalA defendant motorist who refused to takea chemical test at the Warwick police sta-tion could be charged under G.L. §31-27-2.1 despite the fact that she previouslyagreed to take a preliminary breath test atthe scene of a traffic stop, the Traffic Tribu-nal states.

Town of Warwick v. Haley (Lawyers WeeklyNo. 75-014-13) (9 pages).

Refusal - Prior relationshipA charged violation of §31-27-2.2 (“Refusalto submit to a chemical test”) should be sus-tained despite the appellant motorist’s as-sertion that the case was tainted by a priorpersonal relationship between herself andthe officer who initiated a stop of the ap-pellant’s vehicle, the Traffic Tribunal rules.

Town of Bristol v. Malik (Lawyers WeeklyNo. 75-007-13) (7 pages).

Refusal - Sworn reportA charge against a defendant motorist forrefusing to submit to a chemical test mustbe dismissed because the officer who com-

LABORContinued from page 11



pleted a “Report of Law Enforcement” didnot swear to the veracity of the report be-fore a notary as required by G.L. §31-27-2.1, the Traffic Tribunal decides.

Town of Smithfield v. Sleiman (LawyersWeekly No. 75-023-13) (14 pages).

MUNICIPALCharter - Elimination of positionThe North Smithfield Town Council violatedthe Town Charter by approving a budgetthat eliminated the Charter-mandated posi-tion of Director of the Department of PublicWorks, a U.S. District Court judge concludes.

Kaczorowski v. Town of North Smithfield,et al. (Lawyers Weekly No. 52-120-13) (19pages).

Immunity - Police -Indemnification

A jury verdict, holding a defendant Provi-dence police officer individually liable inthe amount of $661,983.10, should not bereduced, as the officer is not entitled tobenefit from the relative immunities en-joyed by municipalities pursuant to G.L. §9-31-3, a Superior Court judge states.

Venturini v. Costello, et al. (Lawyers WeeklyNo. 61-140-13) (15 pages).

Probationary employmentA plaintiff who was terminated from hisprobationary town employee position doesnot have a private right of action under the“good behavior” provision of the Rhode Is-land Constitution (art. III, §7), the 1st U.S.Circuit Court of Appeals says.

Senra v. The Town of Smithfield, et al.(Lawyers Weekly No. 01-113-13) (17 pages).

Sidewalk - MaintenanceThe state lacks standing to appeal from aSuperior Court judgment concluding thatthe city of Providence had no duty tomaintain a sidewalk adjacent to 180 SouthMain Street, the Rhode Island SupremeCourt determines.

Lombardi v. City of Providence, et al.(Lawyers Weekly No. 60-122-13) (16 pages).

NEGLIGENCEAirbags - Res ipsa loquitur

The doctrine of res ipsa loquitur does notpermit a plaintiff, who was injured whenthe airbags in his vehicle deployed unex-pectedly, to recover against the defendantauto dealership that sold him the used ve-hicle three years previously, the Rhode Is-land Supreme Court rules.

Cruz, et al. v. DaimlerChrysler Motors Corp.,et al. (Lawyers Weekly No. 60-082-13) (12pages).

AsbestosA plaintiff has properly pleaded a claim un-der Rhode Island’s strict products liabilitydoctrine by alleging that that the defen-dants specified the use of asbestos and as-bestos-containing products in boats or-dered from the plaintiff’s employer, aSuperior Court judge rules.

Santos v. A.C. McLoon Oil Co., et al.(Lawyers Weekly No. 61-039-13) (40 pages).

FTCA - VA hospitalA plaintiff who was injured in a public rest-room at a Veterans Affairs hospital cannot

recover in a Federal Tort Claims Act suit ab-sent evidence that the VA had actual or con-structive knowledge of the dangerous con-dition that caused the plaintiff’s injury, the1st U.S. Circuit Court of Appeals decides.

Nieves-Romo, et al. v. United States, et al.(Lawyers Weekly No. 01-115-13) (15 pages).

Immunity - Court appointmentQuasi-judicial immunity should be extend-ed to a court-appointed clinical psycholo-gist who performed court-ordered therapyservices, a Superior Court judge holds.

Johnson, et al. v. Kosseff, et al. (LawyersWeekly No. 61-011-13) (25 pages).

Medical malpractice - InsuranceA judge presiding over a medical malprac-tice trial did not err in deciding sua sponteto give the jury an insurance instruction that“simply addressed the reality that jurors of-ten wonder about liability coverage, espe-cially in instances where there is typically aninsured risk, such as medical malpractice,”the Rhode Island Supreme Court concludes.

Oden, et al. v. Schwartz (Lawyers WeeklyNo. 60-078-13) (32 pages).

Pedestrian - New trialA jury verdict for the defendant in a suitbrought by a plaintiff who was struck by asport utility vehicle should be upheld, asreasonable minds could disagree aboutwhether the driver could or should haveseen the plaintiff before his vehicle struckher, the Rhode Island Supreme Court holds.

Mead v. Sanofi-Aventis U.S., Inc., et al.(Lawyers Weekly No. 60-040-13) (14 pages).

Pond - Recreational Use StatuteA plaintiff who was injured when he at-tempted to dive into a man-made pond ata public park is entitled to a new trial fol-lowing a jury verdict for the defendant, asthe weight of the evidence establishes thatthe defendant willfully and maliciouslyfailed to guard against a non-obvious, la-tent dangerous condition, knowing thatthere existed a strong likelihood that a userof the pond would suffer serious injury ordeath, a Superior Court judge decides.

Roy, et al. v. State, et al. (Lawyers WeeklyNo. 61-054-13) (68 pages).

Preemption - AirlineThe Airline Deregulation Act preempts aplaintiff’s claims against a defendant airlinethat allowed his ex-wife to take his chil-dren to Egypt in violation of a court order,the 1st U.S. Circuit Court of Appeals rules.

Bower v. EgyptAir Airlines Company(Lawyers Weekly No. 01-256-13) (27 pages).

Slip and fall - Winter stormAn award of summary judgment in favor ofa defendant podiatrist, in a suit brought bya plaintiff patient who slipped and fell onthe entrance ramp to the defendant’s of-fices, must be vacated and the case re-manded because there exists a genuine is-sue of fact about the extent of the snow, ifany, particularly at the location whereplaintiff fell, the Rhode Island SupremeCourt concludes.

Sullo v. Greenberg (Lawyers Weekly No. 60-094-13) (10 pages).

PARENT AND CHILDHague Convention

A judge’s conclusion that a wrongfully re-moved or wrongfully retained child is“now settled” in another state does not

preclude the judge from ordering the re-turn of the child under principles of equity,the 1st U.S. Circuit Court of Appeals rules.

Yaman v. Yaman (Lawyers Weekly No. 01-237-13) (48 pages).

PATENT AND TRADEMARK

Consumer confusionA defendant charged with trademark in-fringement has failed to substantiate hisclaim that consumers on eBay are less sus-ceptible to confusion than consumers intraditional stores, the 1st U.S. Circuit Courtof Appeals holds.

Bose Corporation v. Ejaz (Lawyers WeeklyNo. 01-258-13) (23 pages).

Preliminary injunction -Consumer confusion

A trademark defendant has no burden toprove anything until the plaintiff has firstmet its responsibility to show infringementby demonstrating that the defendant’s useof its mark is likely to confuse consumers,the 1st U.S. Circuit Court of Appeals holds.

Swarovski Aktiengesellschaft, et al. v. Build-ing #19, Inc. (Lawyers Weekly No. 01-010-13) (23 pages).

PRODUCTS LIABILITYAsbestos

A defendant cannot categorically avoid lia-

bility for a plaintiff’s injuries for the sole rea-son that those injuries were directly causedby exposure to a third party’s replacementparts, a Superior Court judge states.


REAL PROPERTYPrescriptive easement - Open and notorious use

A Superior Court judgment — rejecting aplaintiff’s prescriptive easement claim overa paved driveway — must be reversed, asthe judge erred in finding that althoughthe plaintiff had used the disputed proper-ty openly, such use was not notorious, theRhode Island Supreme Court rules.

Caluori v. Dexter Credit Union (LawyersWeekly No. 60-143-13) (16 pages).

Prescriptive easement - Vehicular use

“Actual, open, notorious, hostile and con-tinuous” vehicular use is required to estab-lish an easement by prescription, theRhode Island Supreme Court states.

Rhode Island Mobile Sportfishermen, Inc. v.Nope’s Island Conservation Association, Inc.(Lawyers Weekly No. 60-24-13) (21 pages).

Siting of homeBy building a home for the plaintiffs on asite encroaching on a utility company’seasement, the defendant developer violat-ed the Rhode Island Deceptive Trade Prac-

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tices Act and committed misrepresentation,fraud and wrongful concealment, a Superi-or Court judge determines.

Boisse, et al. v. Miller, et al. (Lawyers Week-ly No. 61-149-13) (50 pages).

Student housing - DrainageA developer of a student housing facilitysatisfied a condition imposed by the Provi-dence City Plan Commission by submittingan oral — rather than written — report re-garding subsurface drainage, a SuperiorCourt judge concludes.

Stonehenge Partners, LLC v. Gilbane Devel-opment Company, et al. (Lawyers WeeklyNo. 61-165-13) (10 pages).

RETIREMENTAccidental disability - PTSD - Causation

A decision by the Retirement Board of theEmployees’ Retirement System of the Stateof Rhode Island to deny an accidental dis-ability pension application must be re-versed, as the Retirement Board’s conclu-sion that the applicant’s disability was notthe natural and proximate result of an on-the-job accident was clearly erroneous, aSuperior Court judge determines.

Leyden v. Employees’ Retirement System ofthe State of Rhode Island (Lawyers WeeklyNo. 61-104-13) (38 pages).

Accidental disability pension -Anxiety - Workplace harassmentThe Retirement Board of the Employees’Retirement System did not err in denyingan accidental disability pension applicationfiled by a Juvenile Program Worker at theRhode Island Training School who claimedthat workplace incidents gave rise to ananxiety disorder rendering her incapableof returning to work, a Superior Courtjudge rules.

Melvin v. Karpinski (Lawyers Weekly No.61-077-13) (26 pages).

Disability - PTSD - HarassmentAn order denying an application for an ac-cidental disability pension must be reversedbecause all of the examining physiciansconcluded that the applicant’s disabilitywas the natural and proximate result of anon-the-job injury, a Superior Court judgeconcludes.

Rivera v. Employees Retirement System ofRhode Island (Lawyers Weekly No. 61-198-13) (20 pages).

ERISA - DisabilityInsurance policy language requiring proofof disability “satisfactory to us” will ordi-narily fail to meet the “requisite if mini-mum clarity” necessary to shift from denovo to deferential review, the 1st U.S. Cir-cuit Court of Appeals says.

Gross v. Sun Life Assurance Company ofCanada (Lawyers Weekly No. 01-215-13)(61 pages).

ERISA - Retroactive benefitsA retroactively conferred benefit duringthe course of employment constitutes a“benefit attributable to service” and so an“accrued benefit” for purposes of ERISA’santi-cutback rule, the 1st U.S. Circuit Courtof Appeals states.

Bonneau, et al. v. Plumbers and PipefittersLocal Union 51 Pension Trust Fund (LawyersWeekly No. 01-286-13) (15 pages).

LTD benefits - ERISA - IMEIt was not unreasonable or an abuse of dis-cretion for an insurance company to deny arequest by an applicant for long-term dis-ability benefits to permit a third-party ob-server to attend, or a recording to be madeof, an independent medical examinationand an independent psychiatric evaluation,a U.S. magistrate judge determines.

Erdahl v. Liberty Life Assurance Companyof Boston (Lawyers Weekly No. 54-065-13)(24 pages).

Offset - Benefits - VeteranA plaintiff’s disability compensation underthe Veterans’ Benefits Act was not “otherincome” for purposes of reducing the pay-ments owed to the plaintiff by the defen-dant insurance company under an ERISA-qualified plan, the 1st U.S. Circuit Court ofAppeals concludes.

Hannington v. Sun Life and Health Insur-ance Company (Lawyers Weekly No. 01-074-13) (18 pages).

Pension benefits - CutbackThe defendant trustees of a union pensionfund violated ERISA’s anti-cutback provisionby reducing the plaintiff retirees’ monthlypension benefits based upon a plan docu-ment that was not formally adopted until af-ter the plaintiffs submitted their retirementapplications, a U.S. District Court judge finds.

Jervis, et al. v. United Association ofPlumbers and Pipefitters Local Union No.51 Pension Fund, et al. (Lawyers WeeklyNo. 52-122-13) (25 pages).

Withdrawal liability - Pension fund

An “investment plus” approach is appropri-ate in determining whether withdrawal lia-bility should be imposed on two private eq-uity funds under the Employee RetirementIncome Security Act as amended by the Mul-tiemployer Pension Plan Amendment Act,the 1st U.S. Circuit Court of Appeals states.

Sun Capital Partners III, LP, et al. v. NewEngland Teamsters & Trucking IndustryPension Fund (Lawyers Weekly No. 01-192-13) (44 pages).

SEARCH AND SEIZURE

CellphoneA warrantless search by the police of thedata in a cellphone seized from a suspect aspart of his lawful arrest exceeded theboundaries of the Fourth Amendmentsearch-incident-to-arrest exception, the 1st

REAL PROPERTYContinued from page 13

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U.S. Circuit Court of Appeals holds.

United States v. Wurie (Lawyers Weekly No.01-126-13) (53 pages).

Consent - FBI representationThe issue of whether a defendant’s consentto a warrantless search of her home couldnot be resolved absent a determination ofwhether there were reasonable grounds tosupport the claim made by the FBI to thedefendant lawful search of her homewould ensue without her consent, the 1stU.S. Circuit Court of Appeals finds.

United States v. Vázquez (Lawyers WeeklyNo. 01-180-13) (37 pages).

De facto arrest - HandcuffsAn investigatory stop was not transformedinto a de facto arrest when the defendantmotorist was handcuffed and placed in theback of a police cruiser, the Rhode IslandSupreme Court holds.

State v. Santos (Lawyers Weekly No. 60-065-13) (16 pages).

DNAEvidence found through use of a DNA pro-file should not be suppressed even thoughthe method of obtaining the DNA violatedthe Fourth Amendment, the 1st U.S. CircuitCourt of Appeals holds.

United States v. Thomas (Lawyers WeeklyNo. 01-294-13) (26 pages).

Extraterritorial arrestEvidence obtained after an arrest made by afederal law enforcement officer was correctlyadmitted at trial despite the fact that the of-ficer was outside of the jurisdiction in whichhe was authorized to make arrests, the 1stU.S. Circuit Court of Appeals concludes.

United States v. Ryan (Lawyers Weekly No.01-254-13) (10 pages).

GPSEvidence obtained by federal agents whoplaced a global positioning system trackeron a car without a warrant was admissibleunder the good-faith exception to the ex-clusionary rule, the 1st U.S. Circuit Court ofAppeals rules.

United States v. Sparks, et al. (LawyersWeekly No. 01-069-13) (22 pages).

SECURITIESFraud - Drug maker

A judgment dismissing a putative class ac-tion against a defendant pharmaceuticalmanufacturer must be vacated based on al-legations that the defendant failed to dis-close 23 reports of serious adverse effects— including one death — linked to the de-fendant’s “make-or-break” drug, the 1stU.S. Circuit Court of Appeals rules.

Silverstrand Investments, et al. v. AMAGPharmaceuticals, Inc., et al. (Lawyers Week-ly No. 01-037-13) (31 pages).

Loss causation - MergerAn order dismissing a securities fraud com-plaint filed after a corporate merger mustbe reversed based on allegations that thedefendants misrepresented the success oftheir integration of computer systems andthe quality of customer service, the 1st U.S.Circuit Court of Appeals rules.

Massachusetts Retirement Systems, et al. v.CVS Caremark Corporation, et al. (LawyersWeekly No. 01-131-13) (33 pages).

SOCIAL SERVICESDisability - PTSD

A judgment denying a war veteran’s appli-cation for Social Security disability benefitsmust be vacated because the opinion ofthe applicant’s treating physician was notaccorded controlling weight, a U.S. DistrictCourt judge holds.

Bouvier v. Astrue (Lawyers Weekly No. 52-023-13) (24 pages).

SSI - CredibilityAn administrative law judge erred by mak-ing a negative credibility assessment basedon a Supplemental Security Income appli-cant’s use of a walker at a hearing, a U.S.magistrate judge finds.

Torres Cruz v. Astrue (Lawyers Weekly No.54-010-13) (33 pages).

TAXATIONExemption - Real estate

transfer taxesThe Federal National Mortgage Association(Fannie Mae) and the Federal Home LoanMortgage Corporation (Freddie Mac) areexempt from transfer taxes customarily duefrom the seller of real property at the timethat a deed is recorded by a municipality, aU.S. District Court judge says.

City of Providence, et al. v. Federal NationalMortgage Association, et al; Town of John-ston, et al. v. Federal Housing FinanceAgency, et al. (Lawyers Weekly No. 52-092-13) (16 pages).

Lien - SaleA defendant’s real property should be soldto satisfy a tax lien, as (1) the United Statesestablished all of the prerequisites for itsright to enforce the federal tax lien againstthe defendant and (2) no equitable consid-erations exist to delay the sale, a U.S. Dis-trict Court judge decides.

United States v. Latos, et al. (Lawyers Week-ly No. 52-071-13) (12 pages).

Penalty - Equitable estoppelThe doctrine of equitable estoppel doesnot bind the Internal Revenue Service to al-leged assurances by IRS personnel not toassess a failure-to-pay penalty, the 1st U.S.Circuit Court of Appeals holds.

Shafmaster, et al. v. United States (LawyersWeekly No. 01-039-13) (20 pages).

Real estateIt was inconsistent and arbitrary for thedefendant Westerly tax assessor to in-crease the assessment of the plaintiffs’Watch Hill property while lowering otherassessments in the same area based upon ageneral decline in the market, a SuperiorCourt judge determines.

Whittemore, et al. v. Vacca (Lawyers Week-ly No. 61-199-13) (29 pages).

Real property - RehabilitationThe owner of Woodland Manor in Coven-try is entitled to property tax relief underG.L. §44-5-13.11, which sets out a specialtax rate for residential property that hasbeen issued an occupancy permit after sub-

stantial rehabilitation, a Superior Courtjudge concludes.

Springfield Armoury L.P. v. Picard (LawyersWeekly No. 61-084-13) (22 pages).

TORTAsbestos

Summary judgment cannot be granted inan asbestos case in which questions of factexist as to (1) whether the defendant knewor should have known of the dangersposed by its valves when serviced by theplaintiff and (2) whether it breached a dutywhen it did not warn of those dangers, aSuperior Court judge determines.

Sweredoski, et al. v. Alfa Laval, Inc., et al.(Lawyers Weekly No. 61-044-13) (17 pages).

Asbestos - CausationThe “frequency, regularity, proximity” testis the proper causation standard for as-bestos cases in Rhode Island, a SuperiorCourt judge states.


Asbestos - Governmentcontractor defense

A defendant, which has been sued over ex-posure to asbestos on an aircraft carrier, isentitled to assert the government contrac-tor defense with respect to the plaintiff’sdesign defect and failure-to-warn claims, aSuperior Court judge rules.


Contribution - BankruptcyThe Rhode Island Contribution AmongJoint Tortfeasors Act should not be extend-ed to cover bankrupt entities, a SuperiorCourt judge determines.


Slander - Testimonial privilegeSlander claims — against a defendant psy-chiatrist who testified about the plaintiff inproceedings at the Workers’ CompensationCourt and the Rhode Island Department ofEducation — are barred by virtue of thetestimonial privilege, the Rhode IslandSupreme Court concludes.

Francis v. Gallo, et al. (Lawyers Weekly No.60-015-13) (8 pages).

SLAPP - CRMCA condominium association’s correspon-dence with the Coastal Resources Manage-ment Council — objecting to a unit owner’sapplication for approval to demolish his ex-isting unit and rebuild a larger dwellingthereon — enjoys the protections affordedby the anti-SLAPP statute, the Rhode IslandSupreme Court holds.

Sisto v. America Condominium Association,Inc., et al. (Lawyers Weekly No. 60-116-13)(34 pages).

WORKERS’COMPENSATION

Coffee breakAn employee who was injured off-premisesduring a paid coffee break is entitled toworkers’ compensation benefits, as her in-juries arose out of and in the course of her

employment, the Workers’ CompensationCourt holds.

DiSpirito v. City of Providence (LawyersWeekly No. 72-013-13) (13 pages).

Modification - IMEThe effective date of an order modifyingan employee’s weekly benefits from totalto partial incapacity is the date of the im-partial medical examination that gave riseto the modification, the Workers’ Compen-sation Court states.

Belvoir Properties, LLC v. Jewett (LawyersWeekly No. 72-011-13) (7 pages).

‘Street perils’ - Assault by stranger

An employee who was beaten by astranger in the West End of Providence at aworksite the petitioner had been sent to byhis employer should be awarded workers’compensation benefits under the “streetperil” doctrine, the Rhode Island SupremeCourt determines.

Ellis v. Verizon New England, Inc. (LawyersWeekly No. 60-051-13) (15 pages).

Surviving spouse - COLAsA deceased employee’s surviving spouse isentitled to the same weekly benefit the em-ployee was receiving at the time of his death,including cost-of-living adjustments, theWorkers’ Compensation Court concludes.

Finucci v. Park Electric Company (LawyersWeekly No. 72-001-13) (16 pages).

312-week limit - ‘Material hindrance’

A judgment denying a claim for partial in-capacity benefits beyond the 312-week pe-riod provided for in G.L. §28-33-18.3 shouldbe affirmed, as the employee’s failure toregain his former earning capacity did notconstitute a “material hindrance” to ob-taining suitable employment, the Rhode Is-land Supreme Court rules.

Nichols v. R&D Construction Co., Inc.(Lawyers Weekly No. 60-035-13) (16 pages).

ZONINGAbstention - Alternate

A Barrington zoning board member’ s deci-sion to abstain from voting, coupled withthe board’s failure to secure the vote of analternate member in his place, renderedthe board’ s decision denying a dimensionalvariance application a nullity, a SuperiorCourt judge rules.

Ryden v. Kraig, et al. (Lawyers Weekly No.61-122-13) (21 pages).

Building permit - Dimensionalnonconformity

A special permit issued by the Newportzoning board to the respondent owners ofa dimensionally nonconforming lot wasvalid despite the petitioners’ claim that thevertical addition authorized by the permitwould expand the nonconformity, theRhode Island Supreme Court concludes.

Lloyd, et al. v. Zoning Board of Review forthe City of Newport, et al. (Lawyers WeeklyNo. 60-041-13) (21 pages).

Cellphone towerThe Portsmouth zoning board’s denial anapplication for a special use permit for theconstruction of a 195-foot telecommunica-

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tions tower must be reversed because theboard had no basis to draw an inferencethat the proposed plan was not in harmonywith the rural character of the town, a U.S.District Court judge rules.

MCF Communications, LLC v. The Town ofPortsmouth, et al. (Lawyers Weekly No. 52-098-12) (7 pages).

Conditions - VarianceIn finding the plaintiffs to be in violation ofa 1998 use variance, the East Providencezoning officer erred by enforcing condi-tions outside those stated in the 1998 zon-ing board decision granting the variance, aSuperior Court judge concludes.

Kenlin Properties, LLC, et al. v. City of EastProvidence, et al. (Lawyers Weekly No. 61-145-13) (22 pages).

Dimensional variance - DuplexA Jamestown zoning board decision deny-ing an application for a dimensional vari-ance must be reversed because the decisioncontains no findings of fact regarding thereasoning for denying the application, aSuperior Court judge rules.

Tarbox, et al. v. Zoning Board of Review for

the Town of Jamestown (Lawyers WeeklyNo. 61-046-13) (11 pages).

Dimensional variance - GarageA dimensional variance for the construc-tion of a detached garage should be up-held, as the applicants’ purchase of a smalllot did not constitute a “self-created hard-ship,” a Superior Court judge decides.

Rotondo v. Town of Warren Zoning Boardof Review, et al. (Lawyers Weekly No. 61-181-13) (14 pages).

Dimensional variance - WetlandsIn denying a dimensional variance to en-croach on wetlands in order to construct ahome addition to be used as a wine cellarand living room, a zoning board did not errby finding that constructing a 960-squarefoot addition that would add 1,600 squarefeet of interior living space was not the leastnecessary relief, a Superior Court judge rules.

Soldi v. Kraig, et al. (Lawyers Weekly No.61-175-13) (22 pages).

Hardship - Variances - Subdivision

Dimensional relief granted to a Portsmouthlandowner should be affirmed because, ab-sent such relief, the landowner would have

to maintain and care for two full-sizedhomes she inherited, a Superior Courtjudge decides.

Bonome v. Nott, et al. (Lawyers Weekly No.61-196-13) (21 pages).

Preliminary plan approval - CPCA decision by the Providence City Plan Com-mission to grant preliminary plan approvalfor a proposed multi-family structure mustbe vacated because the CPC’s findings offact amounted to unsupported conclusions,a Superior Court judge concludes.

Carello, et al. v. The Zoning Board of Re-view of the City of Providence, et al.(Lawyers Weekly No. 61-201-13) (28 pages).

RecusalAn applicant for a dimensional variancewas denied a fair hearing because of thefailure of one member of the WoonsocketZoning Board to recuse himself from thehearing to avoid a clearly demonstratedappearance of impropriety and bias, a Su-perior Court judge finds.

Fernandes v. Bruce, et al. (Lawyers WeeklyNo. 61-176-13) (15 pages).

Restaurant - ParkingThe Providence zoning board was justified

in approving an application for a special usepermit authorizing a restaurant to both in-crease its seating capacity and reduce thenumber of off-site parking spaces provided,a Superior Court judge concludes.

Krikor S. Dulgarian Trust v. Zoning Boardof Review of the City of Providence, et al. (Lawyers Weekly No. 61-155-13) (25 pages).

Special use permits - ‘Big box’ stores

The Middletown Zoning Board exceededits authority when it concluded that theprovisions of the town’s zoning ordinanceallowing special use permits for “big box”stores in a General Business zone were in-valid, a Superior Court judge holds.

Old Farm, LLC v. Silveira, et al. (LawyersWeekly No. 61-023-13) (12 pages).

Standing - OwnershipBased on its tax title to real property withinthe 200-foot radius of a wind energy proj-ect, the town of Charlestown has standingto challenge the project, a Superior Courtjudge finds.

Town of Charlestown v. Town ofCharlestown Zoning Board of Review, et al. (Lawyers Weekly No. 61-154-13) (14 pages).

ZONINGContinued from page 15

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