Nexsen Pruet attorney Marc Manos, a member of the SC Bar Torts and Insurance Practice Section Council, sheds light on a few recent cases from the Fourth Circuit Court of Appeals, focused in the area of Torts & Insurance.

Below are the cases selected for August and September 2017.

Humbert v. Mayor and City Council of Baltimore City

Aug. 7, 2017- Plaintiff accused of heinous sexual assault and held in pre-trial detention for over a year while investigating officers failed to provide exculpatory evidence to prosecutors. District court struck $2,300,000 jury verdict on qualified immunity grounds, reversed. Victim told officers she could not positively identify Humbert as her attacker and officers discarded the victim’s (an accomplished artist) detailed sketch in favor of that by a police artist as required by City policy. Arrest warrant application contained a false statement when evidence viewed, as it must be, in light most favorable to prevailing plaintiff. The facts also did not support probable cause independent of the false warrant application. The district court’s probable cause finding would allow law enforcement to arrest anyone resembling a generic police composite sketch found walking in their own neighborhood one week after a crime occurred, this does not even rise to the level of mere suspicion, much less probable cause. Jury verdict reinstated.

View case here.

Minnieland Private Day School, Inc. v. Applied Underwriters Captive Risk Assurance Co

Aug. 11, 2017 - Private day care required to provide workers’ comp insurance entered into reinsurance agreement. When “re-insurer” canceled policy after 1,100% premium increase, day care sued for declaratory judgment that the contract actually was insurance, not a reinsurance agreement, fraud, and deceptive trade practices. Defendant attempted to compel arbitration. District court ruled under McCarran-Ferguson doctrine Virginia statute voiding any arbitration provision in a putative contract of insurance applied to provision delegating decision on applicability of arbitration provision to arbiter. The arbiter could not decide if the contract was an insurance contract under Virginia law. Fourth Circuit affirmed. The Fourth Circuit reversed the finding of judicial estoppel against the defendant because other cases where the defendant admitted the contract constituted an insurance contract came under the law of states other than Virginia.

View case here.

Ferguson v. National Freight, Inc.

Aug. 16, 2017 - Fourth Circuit affirmed diversity automobile accident case. All appellate issues involved evidentiary rulings. Of interest, State Trooper allowed to provide lay opinion testimony under Fed. R. Evid. 701 that the Plaintiff’s vehicle was established in the right hand lane of the highway before being struck from behind by Defendant’s vehicle. The Trooper’s lay testimony rationally based on his observing the accident scene, helpful to determine a disputed fact, and not based on scientific, technical or other specialized knowledge.

View case here.

Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc.

Aug. 22, 2017 - Egg producer sued production standards certification organization for false advertising/unfair competition under the Lanham Act regarding an email sent to retailers stating producer lacked up-to-date certifications regarding its organic and pasture raised labeling. The producer did have recent certifications and inspections. Fourth Circuit affirmed preliminary injunction to cease sending the email and to issue a retraction email to the 36 retailers involved. Even though the certifier is a non-profit organization, the misrepresentation in the email concerned the product of another and promoted its own certification services. The Fourth Circuit followed the Sixth Circuit and joined the minority that DOES NOT REQUIRE actual competition between the plaintiff and the maker of the false statements for Lanham Act false advertising. Thus the communication must be commercial speech for the purpose of influencing consumers (broadly defined, not just end consumers) to buy or not buy goods and services, and disseminated so as to affect a market. Even though the certifier operated as a non-profit, it clearly sought to gain more certification customers through the email.

View case here.

Estate of Saylor v. Rochford

Sept. 29, 2017 - The deceased suffered from Down’s syndrome and refused to leave a movie theatre because he wanted to watch the movie a second time, but had not bought a second ticket. Sherriff’s deputies ended up arresting and struggling with him, cuffing him and holding him face down where he ceased breathing. He died of asphyxiation. The deputies filed an interlocutory appeal from denial of summary judgment based on qualified immunity. The Fourth Circuit affirmed finding issues of fact regarding the deputies knowledge of the individuals condition prior to confronting him, responsibility for escalating the incident, as well as whether and to what degree the deceased actually resisted arrest.

View case here.