Mealey's Elder Law
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March 16, 2022
5th Circuit Finds Nursing Home COVID-19 Death Suit Not Preempted By PREP Act
NEW ORLEANS — Calling “the trio of jurisdictional doctrines” invoked by the owners and operators of a nursing home sued by the family of a resident who died after contracting COVID-19 at the facility “inapplicable,” the Fifth Circuit U.S. Court of Appeals on March 10 found that the family’s negligence claims are not preempted by the Public Readiness and Emergency Preparedness (PREP) Act, do not raise a substantial federal question and do not fall under the federal officer removal statute; it affirmed remand of the action to a Texas state court.
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March 16, 2022
Judge Admits Expert, Grants Partial Summary Judgment In Age Discrimination Suit
MINNEAPOLIS — A man’s retaliation claims against his former employer will continue and his damages expert may testify, a Minnesota federal judge ruled March 11, but the judge also awarded the company summary judgment on age discrimination claims.
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March 15, 2022
Wife Of Nursing Home Former Resident Requests Denial Of Cert In FNHRA Petition
WASHINGTON, D.C. — On behalf of her deceased husband, the wife of a former nursing home resident on March 11 filed a brief in opposition to granting certiorari following a nursing home’s petition seeking review and reversal of the Seventh Circuit U.S. Court of Appeals’ ruling that the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents, asserting that all three courts of appeals ruling on the issue determined that nursing home residents have a private right of action under the FNHRA.
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March 14, 2022
Panel Upholds Judgment Against Utility For Cutting Power To Elderly Tribal Member
SEATTLE — The Crow Tribe in Montana had jurisdiction over an electric cooperative after it disconnected power to an elderly tribal member who lives on tribal trust land in violation of the tribe’s law against terminating electric service during the winter, the Ninth Circuit U.S. Court of Appeals ruled March 11 in affirming an award of summary judgment to tribal defendants.
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March 11, 2022
Texas High Court Says Probate Court Jurisdiction’s Valid In Guardianship Order
AUSTIN, Texas — Jurisdiction in a Texas probate court in a guardianship proceeding was proper because service on the decedent by a private process server, rather than by a sheriff, did not deprive the probate court of jurisdiction as the decedent was personally served and participated in the proceedings through counsel, a divided Texas Supreme Court said March 4.
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March 10, 2022
Ky. Panel: Court Did Not Err In Denying New Trial In Care Home Negligence Suit
FRANKFORT, Ky. — A trial court did not abuse its discretion in denying a nursing home’s motion for a new trial in a negligence and wrongful death action filed by an estate administrator against the nursing home related to the care of a former nursing home resident, a divided Kentucky appellate court held March 4, because the nursing home did not timely file supporting affidavits for requesting a new trial and failed to show how the alleged evidentiary errors constituted an abuse of discretion.
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March 10, 2022
Panel Reverses Summary Judgment, Says 2 Wills Raise Factual Questions
ATLANTA — A probate court erred in granting summary judgment to a woman who petitioned to probate a will in solemn form and in admitting that will to probate because the woman swore that two different wills were the decedent’s last will and testament, creating a factual question that requires resolution, a Georgia appellate court ruled Feb. 16.
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March 09, 2022
Kentucky High Court Reverses Panel, Says Widow’s Estate Entitled To Dower Right
FRANKFORT, Ky. — A widow’s estate is entitled to the dower portion of her deceased husband’s estate, and the trial court should have presumed that the deceased husband’s gift to his son without the widow’s knowledge was fraudulent, the Kentucky Supreme Court held Feb. 24, reversing an appellate court and remanding to the trial court to make a distribution to the widow’s estate satisfying the 50% dower share.
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March 09, 2022
1st Circuit: Probate Exception Properly Applied To Estate Suit Alleging Fraud
BOSTON — In affirming the dismissal of an action brought by a decedent’s son against his step-mother and half-siblings for alleged fraud in appropriating the decedent’s assets by tortiously interfering with the intent of the decedent’s will, the First Circuit U.S. Court of Appeals on March 2 held that the trial court properly applied the probate exception to the son’s request that the court appoint a receiver to administer assets.
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March 09, 2022
Judge Grants Senior Housing Owners’ Partial Dismissal In Discrimination Suit
SYRACUSE, N.Y. — Nonprofit fair housing organizations and individuals asserting disability discrimination claims under the Fair Housing Act of 1968 (FHA), the New York Human Rights Law and Ohio Civil Rights Law against senior housing complexes owners failed to make a prima facie case showing that specific jurisdiction exists, a federal judge in New York held Feb. 28, granting a dismissal motion for lack of personal jurisdiction to an Ohio-based real estate investment trust controlling the entities that own the complexes but denying dismissal motions for lack of standing under Article III of the U.S. Constitution and for failure to state a claim against the other defendants.
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March 09, 2022
Nevada High Court: FAA Governs Care Home Contract Impacting Interstate Commerce
CARSON CITY, Nev. — The Federal Arbitration Act (FAA) preempts requirements for arbitration agreements to include specific authorizations in Nevada law for cases involving interstate commerce because Nevada law “singles out and disfavors arbitration provisions by imposing stricter requirements on them than on other contract provisions,” the Nevada Supreme Court held Feb. 24, reversing and remanding a district court order denying a motion to compel arbitration in a wrongful death action against a nursing home.
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March 09, 2022
On Remand, Judge Approves $5.2M Settlement Of Tinder Age-Bias Class Claims
LOS ANGELES — A California federal judge on March 4 granted final approval for a $5.2 million revised settlement to resolve a lawsuit accusing a smartphone-based dating app of discriminatory age-based pricing in violation of the Unruh Civil Rights Act and California’s unfair competition law (UCL) following the Ninth Circuit U.S. Court of Appeals’ reversal of a previously approved settlement.
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March 09, 2022
Texas High Court Says Nursing Home Policies Outside Suit’s Pre-Report Discovery
AUSTIN, Texas — A trial court’s order refusing to compel production of a nursing home’s policies and procedures before the plaintiff provided his expert report in a health care liability case against the nursing home was not an abuse of discretion because the nursing home’s policies are “outside the narrow scope of pre-report discovery” allowed in medical liability cases and the appellate court erred in requiring the trial court to “compel production,” the Texas Supreme Court held Feb. 25, conditionally granting the nursing home’s writ of mandamus petition.
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March 09, 2022
10th Circuit Rejects As ‘Meritless’ Airline’s Challenge Of Age Bias Verdict
DENVER — A 10th Circuit U.S. Court of Appeals panel on Feb. 28 affirmed a trial court’s judgment for two flight attendants who accused United Airlines Inc. of age bias, calling the airline’s challenges regarding the evidence provided during and after the jury trial “meritless.”
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March 04, 2022
Kentucky High Court: Son, As Guardian, Could Not Bind Mother To Arbitration Agreement
FRANKFORT, Ky. — Guardians have authority to bind their wards to contracts that limit the ward’s civil rights “only to the extent necessary to provide needed care and services to the ward,” the Kentucky Supreme Court ruled Feb. 24, reversing a lower appellate court’s ruling that a son, as his mother’s guardian, had the authority to bind her to a voluntary arbitration agreement included in documents he signed upon her admission to a long-term care facility.
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March 04, 2022
2nd Circuit Affirms Ruling Against Participants In Pension Plan Reinterpretation Row
NEW YORK — Saying in a summary order that the appellees have “full discretionary authority to determine eligibility and to interpret the terms of” a defined-benefit multiemployer pension plan, a Second Circuit U.S. Court of Appeals panel on March 2 affirmed a lower court’s judgment in a dispute over reinterpretation of “retires” that resulted in stoppage of early retirement pensions benefits to some plan participants.
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March 04, 2022
Ark. Panel: Arbitration Agreement Applicable In Nursing Home Negligence Suit
LITTLE ROCK, Ark. — An estate administrator’s claims for negligence against a nursing home is within the scope of an arbitration agreement that was determined valid and enforceable by the Arkansas Supreme Court, an Arkansas appellate court found Feb. 23, reversing and remanding a trial court’s order denying the nursing home’s motion to compel arbitration.
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March 03, 2022
Panel: No Errors In Jury Verdict, Trial Rulings In Long-Term Care Benefits Suit
SAN FRANCISCO — A federal district court in California was well within its discretion when it excluded an expert witness from testifying at trial in a long-term care insurance dispute stemming from an insured couple’s filing of allegedly fraudulent home health care claims, and a jury instruction it issued was not plainly erroneous, a Ninth Circuit U.S. Court of Appeal panel ruled March 1 in affirming a verdict against the couple.
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March 02, 2022
Neb. High Court: Court Erred In Appointing Decedent’s Mother As Representative
LINCOLN, Neb. — A probate court erred by appointing a decedent’s mother as personal representative of her son’s estate after the mother filed an objection to being nominated as personal representative when the estate was opened to serve a lawsuit against the decedent more than three years after his death because issuing letters of personal representative without her qualification was not authorized by statute, the Nebraska Supreme Court held Feb. 18, reversing and remanding.
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March 02, 2022
Dismissal Bid Fails In Long-Term Care Insurance Contingent Liability Case
GREAT FALLS, Mont. — Finding contingent liability under an assumption reinsurance agreement and ruling that the allegations supported by the record are “sufficient to satisfy Montana’s long-arm statute,” a Montana federal judge on Feb. 16 denied an insurer’s motion to dismiss a suit over a long-term care insurance policy.