Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Tom Presents…

Posted: April 30, 2014 Filed under: Uncategorized

Today marks the fifth continuing legal education presentation I’ve been part of making over the past eight months – and the fifth distinct topic I’ve addressed.

Prior presentations addressed minimum wage and overtime liability to employees classified as volunteers and unpaid interns; the economic loss rule in Florida; ethics and professionalism consideration in the use of cloud computing by lawyers; and a look inside Florida’s Fifth District Court of Appeal.

Today’s presentation is part of the Orange County Bar Association Appellate Practice Committee’s seminar about “Advanced Legal Writing in a Paperless, Digital Age.” I will be demonstrating the use of freely available legal resources in legal papers through hyperlinks. Officially, the presentation is called “Hyper and (Mostly) Free: Useful Electronic Tools for Persuasive Writing.”

Supreme Court Broadens Police Power to Search

Posted: April 23, 2014 Filed under: Uncategorized

Law enforcement officers now have wider latitude in conducting searches on the basis of anonymous tips. Navarette v. California, No. 12–9490 (April 22, 2014) divided the U.S. Supreme Court’s two most conservative justices, while the majority opinion was joined by one of the Court’s liberals, Justice Breyer. Justice Thomas wrote the majority opinion, and Justice Scalia wrote the dissent. NPR wrote about the Court’s decision HERE.

Florida Supreme Court: Economic Loss Rule Applies Only in Products Liability Cases

Posted: March 7, 2013 Filed under: Uncategorized

One year ago this month, my article titled Ruminations on the Relationship Between the Economic Loss Rule and Claims for Breach of Fiduciary Duty appeared in The Florida Bar Journal. The article discussed conflicting decisions among the Florida District Courts of Appeal on the question of whether the legal doctrine known as the economic loss rule bars common law claims for breach of fiduciary duty when the parties’ relationship is embodied both in a contract and in a relationship giving rise to a fiduciary duty. Fiduciary duties are the highest duties known in law and arise in certain relationships, such as that between a trustee and the beneficiary of a trust, among others.

Today, the Supreme Court of Florida effectively resolved that conflict through a sweeping 5-2 opinion that limits application of the economic loss rule to products liability cases. The court made the pronouncement in Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc.,  No. SC10-1022. The opinion is available HERE.

Tiara began in federal court but reached the Supreme Court of Florida after the U.S. Court of Appeals for the Eleventh Circuit certified the following question:  “Does the economic loss rule bar an insured’s suit against an insurance broker where the parties are in contractual privity with one another and the damages sought are solely for economic losses?”

The Supreme Court of Florida rephrased the Eleventh Circuit’s question because it assumed the continuing applicability of the economic loss rule to cases involving contractual relationships. The rephrased question was: “Does the economic loss rule bar an insured’s suit against an insurance broker where the parties are in contractual privity with one another and the damages sought are solely for economic losses?”

Ultimately, the court answered the rephrased question negatively, concluding it unnecessary “to decide whether the economic loss rule exception for professionals applies to insurance brokers” because “application of the economic loss rule is limited to products liability cases.”

Now the case returns to the federal appeals court, which will render judgment in accordance with Florida law as announced by the Supreme Court of Florida.


Talking About “Obamacare”

Posted: September 12, 2012 Filed under: Commentary, Employment Law, Law-Related News, Legislation, Uncategorized

Thomas Wade Young was recently honored with the opportunity to speak to members of the Central Florida Compensation & Benefits Association regarding the Patient Protection and Affordable Care Act (PPACA) – the law pejoratively or affectionately, depending on one’s viewpoint, as “Obamacare.” The talk was entitled PPACA & SCOTUS: It’s Constitutional. Now What?  The PowerPoint presentation and a list of online resources for further information are available at the following links.

PPACA Presentation Disclaimer-The presentation slides provide only an outline and do not reflect all of Mr. Young’s remarks. The presentation slides are not intended to be a substantive resource and should not be relied on as such.

Online Resources

Estate Planning in the Digital Age

Posted: July 25, 2012 Filed under: Commentary, Law-Related News, Uncategorized

Few people enjoy thinking about death, which explains why so many folks procrastinate when it comes to making and executing plans for the distribution of their estate following their own death. In this article, the American Bar Association raises an interesting question: “What happens to your online accounts, computer files and other ‘digital assets’ when you die or become incapacitated?” Think about it. Then plan accordingly.

Decision on Healthcare Will Create Issues

Posted: June 11, 2012 Filed under: Commentary, Law-Related News, Uncategorized

With the U.S. Supreme Court’s anticipated decision regarding the constitutionally of the law known, both affectionately and derisively, as Obamacare expected on or before June 30, many are awaiting anxiously. As with many things in life, the fix isn’t as simple as affirming the law in toto or finding the law unconstitutional in whole. This AP article highlights some of the effects employers, working families, seniors, and others can expect to encounter regardless of the outcome.

SCOTUS Limits State Liability Under the FMLA for Self-Care

Posted: March 21, 2012 Filed under: Uncategorized

In a case illustrating how a minority position can shift into a majority holding, the Supreme Court of the United States held in Coleman v. Court of Appeals of Maryland, — U.S. — (March 20, 2012), that sovereign immunity bars lawsuits against States under self-care provision of the Family Medical and Leave Act (FMLA) The FMLA requires certain large employers, including States, to grant unpaid leave for self care for a serious medical condition, provided other requirements are also satisfied.

Coleman was an employee of the Maryland Court of Appeals and sued the State of Maryland under the FMLA for denying him self-care leave. The trial court dismissed Coleman’s claim, and the United States Court of Appeals for the Fourth Circuit affirmed,  holding that, unlike the FMLA’s family-care provision, the self-care provision was not created to correct an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States.

In 2003, a three justice minority would have held States immune under the family-care provision. Then, in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), the Court held in a 6-3 decision that mandated leave for the care of family members is a valid exercise of congressional power aimed at eradicating sex discrimination. The law, the former Chief Justice wrote, was appropriately directed to ensuring employers did not discriminate against women because of the erroneous perception that women take more time off work to care for children and other sick family members. “The same cannot be said for requiring the States to giveall employees the opportunity to take self-care leave,” Justice Kennedy wrote in Coleman.

All three female justices dissented, as did Justice Stephen Breyer. Of note, the lead dissenting justice, Justice Ruth Bader Ginsburg, was once fired after she became pregnant.

US Supreme Court Issues Guidance to District Court in Texas Electoral Map Controvery

Posted: January 20, 2012 Filed under: Uncategorized

Folks watching challenges to recently redrawn state electoral maps may be interested in this article summarizing today’s unanimous, unsigned order from the Supreme Court of the United States. The order requires a three judge district court in Texas to start its map-drawing exercise anew, this time giving due regard to those portions of the state’s proposed plan that do not reflect illegal considerations. The district court redrew the state’s electoral map after concluding Texas’s proposed map did not comply with the Voting Rights Act of 1965.

Justices Scalia and Breyer Testify in the U.S. Senate

Posted: October 6, 2011 Filed under: Uncategorized

United States Supreme Court associate justices Stephen Breyer and Antonin Scalia, who often occupy opposite ends of the spectrum in terms of judicial philosophy, appeared yesterday to testify before the Judiciary Committee of the United States Senate. The subjects on which they testified were wide ranging, and their answers were spontaneous. A webcast of the hearing may be accessed via the website of the United States Senate’s Committee on the Judiciary. In terms of the nine justices’ diverging views on the Constitution, Justice Breyer testified, “This is a very big country. We have 309 million people, 308 million of whom, to everyone’s surprise, are not lawyers.” “And they have many different views. And it’s a good thing, not a bad thing, that people’s outlook on that court is not always the same.” Justice Scalia similarly spoke in favor of conflicting views: “Learn to love the separation of powers, which means learning to love the gridlock, which the framers believed would be the main protection of minorities.” “Americans should appreciate that, and they should learn to love the gridlock. It’s there for a reason.”

Religious Organizations Exempt from Title VII Provisions Prohibiting Discrimination Based on Religion

Posted: September 15, 2011 Filed under: Case Law, Employment Law, Uncategorized

If you work for a faith-based organization, don’t expect protection from discrimination directed toward you own beliefs. That was the message sent by the United States Court of Appeals for the Fourth Circuit in Kennedy v. St. Joseph’s Ministries, Inc., No. 10-1792 (4th Cir. September 14, 2011).

Kennedy involved the termination of a 13-year employee’s employment after she refused to stop wearing long dresses and a cover for her hair, which “was a function of her religious beliefs” as a member of the Church of the Brethren. The employer, a nursing-care facility operated “under the direction of the Daughters of Charity, a religious order within the Roman Catholic Church” and maintained “in accordance with Catholic principles” asked Kennedy to modify her attire because it “was inappropriate for a Catholic facility and … made residents and their family members feel uncomfortable.”

The district court interpreted Title VII’s exemption for religious organizations as prohibiting a lawsuit for the termination of Kennedy’s employment, but it ruled the nursing home could be liable for harassment and retaliation based on Kennedy’s religious beliefs. Applying the plain language of the federal statute, the Fourth Circuit’s 2-1 opinion rejected the incongruous logic of the district court. It also reaffirmed that even religious organizations remain liable for other forms of prohibited discrimination: “Section 2000e-1(a) does not exempt religious organizations from Title VII’s provisions barring discrimination on the basis of race, gender, or national origin.”

With regard to religious discrimination, however, the court pointed to 42 U.S.C. § 2000e-1(a), which provides:

This subchapter [of Title VII] shall not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The meaning of this plain language, the court said, permits religious organizations to “terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” Because religious organizations can terminate employees for religious reasons, the court reasoned it would be incompatible with the actual language of the statute to exclude other types of adverse employment decisions, short of hiring and firing. Limiting the exemption to hiring and firing decisions would also “lead to nonsensical results,” the majority wrote.

Kennedy’s view of the statute would counsel religious organizations to immediately discharge an employee over any religious issue rather than consider some attempt at compromise to permit the employee to remain employed.

For those interested in appellate procedure, Kennedy is also interesting in that it was decided as an interlocutory appeal rather than following entry of final judgment. Additionally, the dissenting judge, who would have discharged jurisdiction and not decided the issue presented, was one of the Fourth Circuit judges who earlier voted to grant interlocutory review in the case.

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