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Mealey's Elder Law

  • June 21, 2019

    5th Circuit:  Court, Not Arbitrator Must Decide Unconscionability Challenge

    NEW ORLEANS — A federal court in Mississippi erred when it referred a disagreement in an age bias lawsuit over the conscionability of an arbitration agreement’s formation to an arbitrator as Mississippi law dictates that a court must decide, a Fifth Circuit U.S. Court of Appeals panel ruled June 19 (Cathy J. Bowles v. OneMain Financial Group, L.L.C., No. 18-60749, 5th Cir., 2019 U.S. App. LEXIS 18414).

  • June 21, 2019

    Unanimous High Court Says State Cannot Tax In-State Trust Beneficiaries

    WASHINGTON, D.C. — The U.S. Supreme Court on June 21 affirmed a North Carolina high court decision that the state could not tax in-state beneficiaries of a trust for undistributed income, holding that the trust did not have minimum contacts with the state because the resident beneficiaries could not demand income from the trust or enjoy its assets at the time they were taxed (North Carolina Department of Revenue v. Kimberly Rice Kaestner 1992 Family Trust, No. 18-457, U.S. Sup.).

  • June 21, 2019

    California Appeals Panel: Funeral Home Protected From Liability In Cremains Dispute

    LOS ANGELES — A California funeral home is protected from liability in a dispute between siblings and a girlfriend over a California man’s remains under the safe harbor provisions of California’s Health and Safety Code Sections 7100(f) and 7111, a California appeals panel ruled June 19 (Jeanette Salomon v. Halley-Olsen-Murphy Funerals & Cremations, et al., No. B281408, Calif. App., 2nd Dist., Div. 7, 2019 Cal. App. Unpub. LEXIS 4121).

  • June 20, 2019

    Probate Court Abused Discretion Over Protective Order For Wife’s Estate

    LANSING, Mich. — A probate court abused its discretion by issuing a protective order requiring that an institutionalized man’s income be paid to his wife and terminating his rights to his wife’s estate, a Michigan appeals panel held June 18 (In re Michael Declerck; Rosemary Declerck v. Department of Health and Human Services, No. 343483, Mich. App., 2019 Mich. App. LEXIS 3157).

  • June 20, 2019

    Pennsylvania High Court Finds ERISA Does Not Preempt Property Settlement Agreement

    HARRISBURG, Pa. — The Pennsylvania Supreme Court on June 18 found that the Employee Retirement Income Security Act does not preempt the terms of a property settlement agreement (PSA) filed as part of divorce proceedings that occurred before the man died in which the parties agreed to retain their respective pension benefits, explaining that PSAs are contracts under Pennsylvania law (In re:  Estate of Michael J. Easterday, Nos. 15 MAP 2018, 16 MAP 2018, Pa. Sup., 2019 Pa. LEXIS 3305).

  • June 19, 2019

    Split Connecticut High Court Reinstates Nursing Home’s Fraudulent Transfer Claim

    NEW HAVEN, Conn. — A 4-3 panel of the Connecticut Supreme Court on June 18 overturned a lower court’s ruling that a nursing home cannot pursue a claim under the Connecticut Uniform Fraudulent Transfers Act (CUFTA), finding that the lower court erred when failing to apply agency principles when considering who made the allegedly fraudulent transfers (Geriatrics Inc. v. Helen McGee, et al., No. SC 20047, Conn. Sup., 2019 Conn. LEXIS 156).

  • June 17, 2019

    Divided Michigan High Court Says Agreement Limited Retiree Health Benefits

    LANSING, Mich. — A 4-2 Michigan Supreme Court on May 30 held that a collective bargaining agreement (CBA) between a county and its employees did not promise lifetime health care benefits to retirees and that the provisions of the agreement limited the benefits to three years (Rita Kendzierski, et al. v. Macomb County, No. 156086, Mich. Sup., 2019 Mich. LEXIS 989).

  • June 17, 2019

    U.S. Supreme Court Won’t Hear Case On Age-Based Pension Rates

    WASHINGTON, D.C. — The U.S. Supreme Court on June 17 denied a petition for a writ of certiorari filed by Baltimore County, Md., seeking reversal of a Fourth Circuit U.S. Court of Appeals’ ruling that a back pay award in an age-based pension rate dispute was a mandatory legal remedy (Baltimore County, Maryland v. Equal Employment Opportunity Commission, No. 18-781, U.S. Sup.).

  • June 17, 2019

    Judge Trims Some Claims Against Nursing Home, Finds Right To Arbitrate Waived

    LEXINGTON, Ky.— A federal judge in Kentucky on June 13 trimmed claims from a former resident’s class action lawsuit against a nursing home and its past and current administrator for failure to state a claim and denied the facility’s request to arbitrate the woman’s action, finding that it waived its right to arbitration by filing an answer to the complaint and filing a motion to dismiss (Carrie Johnson v. BLC Lexington SNF LLC, et al., No. 19-cv-64, E.D. Ky., 2019 U.S. Dist. LEXIS 99031).

  • June 17, 2019

    Appeals Panel Affirms Various Probate Orders In Contested Estate

    CLEVELAND — An Ohio appeals panel on May 30 upheld orders appointing an administrator and approving the inventory, appraisal and amended final account of a woman’s estate (In re estate of Elase Jenkins, No. 107343, Ohio App., 8th Dist., 2019 Ohio App. LEXIS 2180).

  • June 14, 2019

    4th Circuit Reverses Exclusion Of Experts In Suit Over Woman’s Death

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on June 12 sent a negligence suit over an elderly woman’s death after taking pills that were mailed to the wrong address back to the trial court to conduct a Daubert analysis for three medical experts because their causation opinions were improperly disallowed (Michael A. Small v. WellDyne, Inc., et al., No. 18-1638, 4th Cir., 2019 U.S. App. LEXIS 17545).

  • June 14, 2019

    Michigan Panel Replaces Ruling In Trust Suit To Correct Factual Errors

    DETROIT — A Michigan appeals court panel on May 14 vacated a March 12 ruling that ordered a probate court judge to hold an evidentiary hearing to determine whether two siblings sufficiently stated that their brother exercised undue influence over their mother’s distribution of money and property from two subtrusts and replaced the decision with an opinion that corrected factual errors (In re:  Monier Khalil Living Trust, No. 341142, Mich. App., 1st Dist., 2019 Mich. App. Unpub. LEXIS 2109).

  • June 13, 2019

    Panel Affirms Woman’s Conviction For Financial Elder Abuse, Vacates Sentence

    ATLANTA — A Georgia appeals court panel on June 11 affirmed a woman’s conviction on charges of financial elder abuse, financial-transaction-card-fraud and theft by taking, finding that evidence presented during trial sufficiently supported the jury’s verdict, but reversed and vacated her sentence for theft by taking after holding that the trial court judge applied the wrong statute (Patricia Marie Anderson v. State, No. A190118, Ga. App., 3rd Dist., 2019 Ga. App. LEXIS 310).

  • June 12, 2019

    Panel Upholds Dismissal Of Health Care Liability Claim Against Nursing Home

    EL PASO, Texas — A Texas appeals panel on May 31 affirmed the dismissal of a nursing resident’s health care liability claim against a nursing home on the basis that the family of the resident failed to file an expert report as required (Mary Lou Ortiz, et al. v. St. Teresa Nursing and Rehabilitation Center LLC, No. 08-17-00042, Texas App., 8th Dist., 2019 Tex. App. LEXIS 4496).

  • June 11, 2019

    7th Circuit Panel Revives Man’s Age Discrimination Suit Against Former Employer

    CHICAGO — A Seventh Circuit U.S. Court of Appeals panel on June 7 reversed a ruling dismissing a man’s age discrimination and retaliation suit against his former employer, holding that he sufficiently named his employer in his Equal Employment Opportunity Commission charge and that the commission’s error in processing his charge does not bar his ability to file suit (Humberto Trujillo v. Rockledge Furniture LLC, Nos. 18-3349, 19-1651, 7th Cir., 2019 U.S. App. LEXIS 17135).

  • June 10, 2019

    Widow Of Man Resuscitated Against His Wishes Awarded $409,000 By Montana Jury

    HELENA, Mont. — A Montana jury awarded more than $409,000 on May 23 to the widow of a man who informed a hospital upon admission of his “do not resuscitate” (DNR) and “do not intubate” (DNI) advance directives but was nevertheless resuscitated twice in two days (Cheryl O’Donnell v. Lee Harrison, et al., No. 2017-850, Mont. Dist., Lewis and Clark Co., 1st Jud. Dist.).

  • June 10, 2019

    Texas Panel Reverses Refusal To Admit Handwritten Document To Probate As A Will

    HOUSTON — A Texas appeals panel on June 4 held that a probate court erred when it refused to admit a handwritten document to probate on the basis that it lacks testamentary intent, finding that the document is ambiguous as to whether it disposes of the decedent’s property (In the Estate of Seth Silverman, M.D., No. 14-18-00256, Texas App., 14th Dist., 2019 Tex. App. LEXIS 4579).

  • June 10, 2019

    California Federal Judge Denies Nursing Home’s Stay, Interlocutory Appeal Motions

    SAN FRANCISCO — A federal judge in California on June 5 denied a nursing home’s motions to stay proceedings related to two plaintiffs alleging a misrepresentation of the quality of care pending its appeal over arbitration and to certify for interlocutory appeal the question of whether the facilities are public accommodations under the Americans with Disabilities Act (ADA) (Stacia Stiner, et al. v. Brookdale Senior Living, Inc., et al., No. 17-3962, N.D. Calif., 2019 U.S. Dist. LEXIS 94510).

  • June 10, 2019

    8th Circuit Denies Stay, Issues Mandate On Honeywell Vesting Decision

    ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on June 5 issued a mandate that the health benefits of a class of retirees were not vested as a matter of law; the mandate was filed one day after the appellate panel issued an order denying the class’s motion to stay to allow them to file a petition for writ of certiorari to the U.S. Supreme Court (Augustine Pacheco, et al. v. Honeywell International Inc., Nos. 18-1006 and 18-1294, 8th Cir.).

  • June 6, 2019

    Louisiana Appeals Panel Affirms Class Certification Denial In Nursing Home Suit

    NEW ORLEANS — Two former nursing home residents who sued the facility for deficient care failed to prove numerosity when it came to their proposed class, a Louisiana appellate panel ruled May 22, affirming a trial court’s denial of the residents’ motion for class certification (Judith Sullivan, et al. v. Malta Park, et al., No. 2019-CA-0086, La. App., 4th Cir., 2019 La. App. LEXIS 913).