Federal Circuit Courts – Significant Appellate Matters
First Circuit
Furtado v. Oberg, 949 F.3d 56 (1st Cir. 2020). FMG attorney Jennifer Markowski represented the defendants-appellees in this professional liability matter. The First Circuit affirmed summary judgment in favor of the defendants, concluding that the plaintiff failed to establish any loss proximately caused by attorney’s breach of any alleged duty owed to him, as required to establish claims for legal malpractice, breach of fiduciary duty, and misrepresentation.
Thomas & Betts Corp. v. New Albertson’s, Inc., 915 F.3d 36 (1st Cir. 2019). FMG attorney Neil Hartzell represented a third-party defendant-appellee former landowner in an environmental liability matter. The First Circuit affirmed judgment in favor of the former landowner, holding that the trial court had properly instructed the jury on the standard for liability under the applicable Massachusetts environmental remediation statute.
Robert Smith v. Dorchester Real Estate, Inc., 732 F.3d 51 (1st Cir. 2013). FMG attorney Thomas K. McCraw represented the defendant-appellant real estate brokerage firm in a matter brought by a mortgagor, arising from a real estate mortgage transaction. The First Circuit vacated the damages award, concluding that the trial court improperly allowed testimony of the plaintiff’s expert witness.
Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 212 (1st Cir. 2006). FMG attorney Warren Hutchison represented the defendant-appellant design professional with respect to a counterclaim for indemnification. The First Circuit reversed the trial court’s entry of judgment for the plaintiff on the counterclaim, holding that the design professional was entitled to indemnity even though the clause did not expressly provide for indemnification of costs incurred in the course of litigation brought by the plaintiff.
North American Specialty Ins. Co. v. Lapalme, 258 F.3d 35 (1st Cir. 2001). FMG attorneys Warren Hutchison and Nancy Reimer represented the defendants-appellees accountant and accounting firm in a professional liability matter. The First Circuit affirmed summary judgment in favor of the defendants, concluding that the plaintiff failed to establish that the defendants had any actual knowledge about the plaintiff’s intent to use a financial statement.
Second Circuit
Jenkins v. Road Scholar Transport, 835 F. App’x 619 (2d Cir. 2020). FMG attorney Michael Kenney represented the Defendants-Appellees in this trucking case involving alleged negligence and recklessness. The Second Circuit affirmed a district court’s entry of summary judgment for FMG’s clients, holding that the plaintiff’s contributory negligence barred recovery as a matter of law.
LaBruna v. U.S. Marshal, 665 F.2d 439 (2d Cir. 1981). FMG retired partner Michael Athans represented the petitioner in this habeas corpus case. The Second Circuit reversed a district court’s dismissal of an application for writ of habeas corpus, holding that petitioner was not required to exhaust state remedies by raising a sufficiently of the evidence claim prior to federal habeas review.
Third Circuit
Sweeney v. Eastman Kodak Co., 856 F. App’x 371 (3d Cir. 2021). FMG attorneys Amy Hansell and Daniel Young handled this appeal of a district court order ruling that the plaintiffs’ claims against FMG’s clients had been discharged as part of a bankruptcy proceeding. The Second Circuit affirmed, holding that the debtor’s notice of the deadline for filing proof of claims complied with due process.
Fourth Circuit
Jones v. Martinsburg, 961 F.3d 661 (4th Cir. 2020). FMG attorneys Philip Savrin and Ali Sabzevari represented police officers employed by the City of Martinsburg, West Virginia who had used deadly force on a suspect who brandished a knife and stabbed one of the officers during a scuffle. The officers prevailed twice in the district court only to have the Fourth Circuit remand both times for further proceedings. The case settled prior to trial following the second remand.
Fifth Circuit
Wilson v. Midland County, 116 F.4th 384 (5th Cir. 2024) (en banc). FMG attorneys Philip Savrin, Michael Freed and William Buechner represented Midland County, Texas who had been sued for damages under Section 1983 for an allegedly wrongful conviction 20 years earlier. After oral argument before all 18 judges on the Fifth Circuit, the dismissal was affirmed by a plurality opinion holding that a civil claim did not accrue unless and until the conviction was set aside. A cert petition to the Supreme Court based on a split in the circuits is pending.
Harris v. Clay County, 47 F.4th 271 (5th Cir. 2022). FMG attorney Philip Savrin represented Clay County, Mississippi who had been sued under Section 1983 for incarcerating the plaintiff who had been declared mentally incompetent to stand trial but had never been ordered to be released by the court. In a case of first impression, the Fifth Circuit determined that a jury would need to resolve facts before the constitutional issues could be determined. The case settled prior to trial.
Sixth Circuit
Garber v. Menendez, 888 F.3d 839 (6th Cir. 2018). FMG attorney Kevin Norchi represented a physician in a medical malpractice case that raised the issue of whether the tolling of a statute of limitations when a physician leaves the state violates the Commerce Clause of the United States Constitution.
National Surety Corp. v. Hartford Casualty Insurance Co., 493 F.3d 752 (6th Cir. 2007). FMG attorney Barry Miller represented an insurer in this case involving the issue of whether, under Kentucky law, an excess insurer can maintain a claim against a primary insurer pursuant to the doctrine of equitable subrogation. The Sixth Circuit held that there is such a claim for failure to settle, but not for failure to investigate other insurance.
State Auto Property & Casualty Insurance Co. v. Hargis, 785 F.3d 189 (6th Cir. 2015). FMG attorney Barry Miller handled this appeal on behalf of an insurer involving a matter of first impression: whether an insurance carrier can assert reverse bad faith against an insured who files a fraudulent claim.
National Surety Corp. v. Hartford Casualty Insurance Co., 493 F.3d 752 (6th Cir. 2007). In a case of first impression handled by FMG attorney Barry Miller, the Sixth Circuit predicted that Kentucky would use the doctrine of equitable subrogation to allow an excess carrier to sue a primary carrier for the primary’s failure to settle an underlying claim within policy limits.
Seventh Circuit
GEFT Outdoor, LLC v. Evansville, 110 F.4th 935 (7th Cir. 2024). FMG attorneys Philip Savrin and Sean Harrison represented City of Evansville in defending the sign ordinance of City of Evansville, Indiana against a facial challenge by a billboard company. In a published opinion he Seventh Circuit affirmed the entry of summary judgment in favor of Evansville.
GEFT Outdoor, LLC v. Westfield, 39 F.4th 821 (7th Cir. 2022). FMG attorneys Philip Savrin and William Buechner represented Town of Westfield, Indiana in a challenge to a billboard ordinance under the First Amendment. The central issue was whether distinctions between “on premises” and “off premises” signs was based on the “content” of the speech thereby rendering it unconstitutional. While the case was pending the Supreme Court resolved that question in City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61 (2022). The case settled after it was remanded to resolve the issues that remained.
Scottsdale Insurance Co. v. Columbia Insurance Group, Inc., 972 F.3d 915 (7th Cir. 2020). FMG attorney Jonathan Schwartz represented an insurer in this declaratory judgment action. The Seventh Circuit affirmed a judgment in the insurer’s favor, holding that the carrier for a subcontractor had a duty to defendant the owner and construction manager in an underlying personal injury case.
Weiland v. Loomis, 938 F.3d 917 (7th Cir. 2019). FMG attorney Philip Savrin represented a jailer employed by Kane County, Illinois, who was guarding a violent criminal who was receiving medical care at a hospital. The officer momentarily removed the detainee’s shackles which allowed him to break loose and attack patients and employees at the hospital. The district court upheld a Section 1983 claim against the officer based on the “state-created danger” theory under the Due Process Clause. The Seventh Circuit reversed, however, finding that if such a theory exists in the law it would require more than mere negligence on the part of the officer.
National Union Fire Insurance Co. of Pittsburgh v. American Motorists Insurance Co., 707 F.3d 797 (7th Cir. 2013). FMG attorney Michael Sanders obtained reimbursement of a settlement paid by an excess insurer in a complex insurance coverage dispute arising from the construction accident involving issues of equitable subrogation, targeted tender, and professional liability exclusion.
Rock River Health Care, LLC v. Eagleson, 14 F.4th 768 (7th Cir. 2021). In this case handled by FMG attorney Amy Baughman, the Seventh Circuit held that operators of long-term care facility could state a due process claim against the state for retroactively recalculating their Medicaid reimbursement rates.
Eighth Circuit
Sletten & Brettin Orthodontics, LLC v. Continental Casualty Co., 782 F.3d 931 (8th Cir. 2015). FMG attorney Jonathan Schwartz handled this insurance coverage case in the Eighth Circuit. The court held that an insurer had no duty to defend its insured orthodontist practice against a defamation suit because the complaint alleged malicious defamation with an intent to injure.
Ninth Circuit
Foundation for Horses and Other Animals v. Babbitt, 154 F.3d 1103 (9th Cir. 1998). FMG attorney John Rubiner represented the National Park Service in this appeal to the Ninth Circuit. The court held the NPS’s removal of non-native horses from a national park did not violate the National Environmental Policy Act.
Eleventh Circuit
Dukes v. Deaton, 852 F.3d 1035 (11th Cir. 2017). FMG attorneys Jack Hancock, Ali Sabzevari and Wayne Melnick represented two public officials in this § 1983 case. The Eleventh Circuit held that FMG’s client was entitled to qualified immunity because it was not clearly established that his use of a diversionary device, commonly referred to as a flashbang, violated the Fourth Amendment.
Principle Solutions Group, LLC v. Ironshore Indemnity, Inc., 944 F.3d 886 (11th Cir. 2019). FMG attorneys Philip Savrin and William Buechner represented an insurer in a case that presented an issue of first impression regarding the interpretation of a commercial crime insurance policy arising of $1.7 million loss pursuant to phishing scheme.
Harris v. Liberty Community Management, 702 F.3d 1298 (11th Cir. 2012). FMG founding partner Ben Mathis and attorney William Buechner represented a property management company in this case that presented an issue of first impression addressing the interpretation of an exception to the Fair Debt Collection Practices Act for debt collection “incidental to a bona fide fiduciary obligation.”
Henry’s Louisiana Grill, Inc. v. Allied Insurance Company of America, 35 F.4th 1318 (11th Cir. 2022). In a case of first impression handled by FMG attorneys Philip Savrin and Shawn Bingham, the Eleventh Circuit affirmed the district court’s dismissal of an insured’s claim for lost business income after it suspended operations at its restaurant due to COVID-19.
Swinford v. Santos, 121 F.4th 179 (11th Cir. 2024). The Eleventh Circuit affirmed the grant of qualified immunity to seven police officers accused of excessive force in violation of the Fourth Amendment in a case handled by FMG attorneys Sun Choy and Michael Freed. The court reaffirmed that courts may consider police body camera videos in ruling on a motion to dismiss under the incorporation by reference doctrine.
Significant Appellate Matters
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