CASE BRIEFS

Trinity appointed Caldwell Roberts as Stevens' defense counsel in the action and, in conformity with Trinity's recommendation, Stevens continued to employ separate counsel, Michael Percy. Both counsel represented Stevens throughout the litigation and participated in all aspects of the litigation. The underlying suit went to trial and resulted in a jury verdict for Stevens.

Thereafter, Stevens filed a motion for summary judgment against Trinity seeking recovery of Percy's attorneys' fees and expenses. Trinity filed a cross-motion for summary judgment arguing, inter alia, that it had discharged any duty to defend by providing Roberts as defense counsel for Stevens. The district court found in Trinity's favor, holding that 'even when the insurer reserves the right to deny coverage, it is not obligated to pay for an attorney that the insured unilaterally decides to hire as an extra defense counsel.' Stevens appealed.

The 5th Circuit succinctly phrased the question before it as 'whether Trinity, as insurer, must reimburse Stevens, as insured, for attorneys' fees and costs Stevens incurred by hiring independent counsel to represent it in the Underlying Action, where Trinity provided Stevens with counsel, but reserved the right to deny coverage and withdraw from Stevens' defense.' As neither the Louisiana legislature nor the Louisiana Supreme Court had spoken on this issue, the court looked to other appellate court decisions for guidance.

The court noted that the 5th Circuit held in Nat'l Union Fire Ins. Co. v. Circle, Inc., 915 F.2d 986 (5th Cir. 1990) that an insured may recover fees for an attorney hired by the insured, as opposed to the insurer, if the attorney provided by the insurer fails to 'vigorously and adequately' defend the insured. However, as Stevens made no such contention with regard to Roberts, the court found Circle, Inc. inapposite. The court also rejected Stevens' reliance upon Smith v. Reliance Ins. Co., 807 So.2d 1010 (La. App. 5 Cir. 2002) and Belanger v. Gabriel Chems., Inc., 787 So.2d 559 (La. App. 1 Cir. 2001), which both held that in certain circumstances an insurer who contests coverage is liable for the attorneys' fees if the insured hires separate counsel. The court distinguished these decisions on the basis that both of those cases involved insureds who wished to reject the insurer's proffered counsel and instead employ independent counsel.

Finding no decision directly on point, the court concluded that Trinity was under no obligation to reimburse Stevens for Percy's fees. The court reasoned: 'what matters in this case is that Trinity provided Stevens with competent defense counsel in the Underlying Action, not whether Percy's contribution as independent counsel to Stevens was beneficial or whether the litigation was especially complex. ' The fact that Trinity reserved the right to later deny coverage does not negate the fact that it fulfilled its duty of providing Stevens with adequate counsel.

Multiple Plumbing Leaks Considered Separate Occurrences

In U.E. Texas One-Barrington, Ltd. v. General Star Indemnity Company; Fireman's Fund Insurance Company of Ohio (5th Cir. 5/19/03) 2003 WL21143063, the U.S. Court of Appeals for the 5th Circuit (applying Texas law) affirmed a lower court's grant of summary judgment in favor of two insurers holding that: 1) access costs were not recoverable under a policy that did not cover the water damage caused by long-term water leaks; and 2) plumbing leaks under each of 19 buildings were separate occurrences as a matter of Texas law for the purpose of determining the deductible under an excess policy.

U. E. Texas One-Barrington, Ltd. ('Texas One') owned the Oak Meadow Apartment Complex consisting of multiple residential and office buildings in San Antonio, TX. Several of the buildings suffered from foundation movement and above-ground damage resulting from plumbing leaks beneath the foundation. Texas One sued General Star Indemnity Company ('General Star') and Fireman's Fund Insurance Company ('Fireman's Fund') for breach of contract arising out of the insurers' refusal to pay Texas One's claims under a commercial property policy and an excess policy, respectively. General Star and Fireman's Fund removed the matter to federal court and subsequently moved for summary judgment.

General Star: Texas One argued that the General Star policy language required payment of the cost to access the underground plumbing even though payment for the damage caused by the leaks was barred by the 14-day continuous leakage exclusion and further argued that General Star admitted it was obligated to pay for the access cost because it made a partial payment of Texas One's access costs. The 5th Circuit rejected both arguments in short order citing Gen. Accident Ins. Co. v. Unity/Waterford-Fair Oaks, Ltd., 288 F.3d 651, 656 (5th Cir.2002) (Cost of accessing underground pipes was not covered and the parties' course of conduct cannot be considered to determine the meaning of an unambiguous contract.)

Fireman's Fund: Texas One argued that although each building was damaged by different leaks, there was only one occurrence for purposes of the Fireman's Fund policy. Texas One's argument rested upon the contention that all of the leaks could be traced back to defects in the materials and installation of the underground plumbing system. The Fireman's Fund policy provided 'excess over and above $1,000,000 ultimate net loss to the insured in each and every loss occurrence. ' The term loss occurrence means the total loss by perils insured against arising out of a single event.' Neither party contended that 'occurrence' was ambiguous as used in the contract or that the determination of the number of occurrences required a resolution of a factual dispute. Accordingly, the court found that the interpretation of 'occurrence' was a question of law.

The 5th Circuit held that each leak constitutes a separate occurrence as a matter of law. The court reasoned that under Texas law, 'the proper focus in interpreting 'occurrence' is on the events that cause the injuries and give rise to the insured's liability, rather than on the number of injurious effects.' Texas One maintained that the leaks could be traced back to defects in materials and installation of the underground plumbing system. Focusing on the specific event that caused the loss, the court found that the loss arose when the pipes broke, not when they were installed. Since no one building suffered a $1 million net loss, Texas One did not meet the $1 million per occurrence threshold under the Fireman's Fund policy.

The majority dismissed the dissent's lengthy distinction between the interpretation of 'occurrence' in liability policies from 'occurrence' in property loss policies stating that the court had already rejected the dissent's distinction in Ran-Nan Inc. v. General Accident Ins. Co., 252 F.3d 738, 739 (5th Cir.2001) (per curiam).

Policy Provision Applies to Claim of Each Separate Class Member

In Musmeci v. Schwegmann Giant Super Markets, Inc., No. 02-30246 (5th Cir. 6/11/03), the U.S. Court of Appeals for the 5th Circuit held that the self insured retention (SIR) in United States Fidelity & Guaranty's (USF&G) General Liability Policy which provided Excess Employee Benefits Liability Coverage applied to each plaintiff class member's claim and overturned the lower court's ruling that the SIR applied one time to the collective claims of each plaintiff class member. While the collective claims of the plaintiff's class exceeded the $250,000 SIR, no individual claim exceeded the SIR, and the judgment against USF&G was vacated.

In 1985, Schwegman Giant Super Markets, Inc., (SGSM) implemented a grocery voucher plan (the 'Voucher Plan') designed to supply SGSM retirees with a portion of their monthly food needs. Under this plan, SGSM issued vouchers to retirees, and these vouchers could then be used in lieu of cash to purchase goods in SGSM stores. In 1997, SGSM terminated the Voucher Plan one week before Mr. Schwegman sold SGSM. After being informed of the termination of the Voucher Plan, plaintiffs filed a class action suit under ERISA and Louisiana state law claiming that they were vested in a pension benefit plan.

The district court issued findings of fact and conclusions of law, ruling that the grocery Voucher Plan was a pension benefit plan under ERISA, that SGSM breached its fiduciary duty under ERISA, that Mr. Schwegmann was liable as a fiduciary to the plan, that the plaintiffs were entitled to monetary relief for benefits denied after SGSM's sale, and that USF&G's policy covered SGSM's liability, and that the policy's SIR applies once to the plaintiffs' claims collectively. On appeal, the 5th Circuit agreed with the district court except with respect to USF&G.

The SIR provision contained only one line reading: '$250,000 each claim.' Neither the SIR nor any other section of the policy defined the term 'claim.' The district court ruled that the failure to define this term rendered the policy ambiguous as a matter of law. Construing the policy against USF&G, the district court concluded that the term 'claim' referred to the single demand for coverage by the insured, SGSM, rather than the many claims made against SGSM.

The court found that this was too narrow of an interpretation of the policy. The court reasoned that under the basic tenets of Louisiana's law of contract interpretation, each of the policy's provisions must be read in light of the others. The court found that the meaning of 'claim' for the purposes of the SIR provision could be gleaned by reference to the use of the word in numerous other provisions of the policy. The court looked at other provisions of the USF&G policy that applied both to all coverages and those that applied to the specific coverage at issue and determined that the policy consistently referred to claims made 'against the insured' or claims 'by the employee.' Accordingly, the court held that the term 'claim' in the SIR provision, when read in light of these other provisions of the policy, was clear and unambiguous and provided that a 'claim' is the assertion of a legal right against the insured by a third party.

Having disposed of the theory that there was only a single claim for coverage, the court next considered whether or not there was a single claim on behalf of the plaintiff class or whether there were multiple claims on behalf of each member of the class. Relying on Colbert County Hospital v. Bellefonte Insurance Co., 725 F.2d 651 (11th Cir. 1985) and Maxim Manufacturing Corporation v. Alliance General Insurance Co., 911 F.Supp. 239 (S.D. Miss. 1995), the court concluded that the SIR had to be applied to individual class members' claims because each individual claimant could have filed their own separate claim against SMSG. Where no individual claim exceeded the $250,000 SIR, the judgment against USF&G was vacated.

Stacking of Policy Limits Permitted for Occurrence Over Multiple Years

In Employers Insurance of Wausau v. Granite State Insurance Co., 2003 U.S. App. LEXIS 11111 (9th Cir. June 4, 2003), the 9th Circuit Court of Appeals addressed the question of whether the limits of multiple insurance policies could be 'stacked' to create coverage greater than one annual 'per occurrence' limit. Two insurance carriers argued over whether California law permitted such 'stacking.' The 9th Circuit relied on Stonewall Insurance Co. v. City of Palos Verdes Estates, 46 Cal. App. 4th 1810, 54 Cal. Rptr. 2d 176 (1996) to support its conclusion that such stacking was permissible. The court rejected an insurer's argument that Stonewall conflicted with another California court of appeal decision, FMC Corp. v. Plaisted & Cos., 61 Cal. App. 4th 1132, 72 Cal. Rptr. 2d 467 (1998). In FMC, the court held that when an occurrence takes place in multiple years, an insured may not recover an amount any greater than the highest occurrence limit for one policy period, reasoning that if the insured were entitled to stack policy limits, it would receive more coverage for an occurrence than the parties had bargained for. The 9th Circuit held that FMC was distinguishable from Stonewall and the facts before it. The court noted that another California court of appeal had reached a different decision from FMC. While the publication of that decision, Alpha Therapeutic Corp. v. The Home Insurance Co., 90 Cal. App. 4th 1330, 109 Cal. Rptr. 2d 698 (2001), was suspended by operation of law when the California Supreme Court granted review, the 9th Circuit concluded that it 'may consider unpublished state decisions, even though such opinions have no precedential value.' It noted that Alpha Therapeutic 'rejects a broad anti-stacking rule, holding that where an insured suffered for several years from injuries caused by a single 'occurrence,' recovery should not be limited to a single year's policy limit.' The 9th Circuit noted that the Alpha Therapeutic decision supported its conclusion that 'Stonewall accurately represents California law.' It concluded by noting that 'California courts have not broadly rejected 'stacking' in a primary insurer context. To the contrary, California courts have expressly approved stacking successive 'per occurrence, per year' policy limits where, as here, a single occurrence extends through more than one policy period.' The 9th Circuit also noted that its conclusion was consistent with the so-called 'horizontal exhaustion' rule, under which an excess policy will not attach until all primary insurance is exhausted. Therefore, by its decision, the 9th Circuit has answered a question subject to extensive debate ' does California permit stacking of primary policy limits when an occurrence takes place in more than one year? According to the 9th Circuit, the answer to that question is 'yes.'

Joseph P. Guichet, Lourdes Estevez Martinez and Seth A. Schmeeckle of Lugenbuhl, Wheaton, Peck, Rankin & Hubbard and Kirk Pasich of Howrey Simon Arnold & White, LLP contributed this month's case briefs.

No Reimbursement For Counsel Fees When Insurer Reserves Right To Deny Coverage

In Trinity Universal Insurance Co. v. Stevens Forestry Service Inc., No. 02-30442 (5th Cir. 6/18/03), the U.S. Court of Appeals for the 5th Circuit, affirming the district court, recently held that an insurer is not obligated to reimburse its insured for attorneys' fees the insured incurred to hire separate counsel to represent it in a lawsuit where the insurer provided the insured with counsel but reserved the right to deny coverage and withdraw from the defense.

Stevens Forestry Service Inc. ('Stevens') hired a lawyer to assist it in handling a dispute with a customer. When Stevens received a formal demand for $1.1 million from the customer, Stevens tendered the claim to its liability insurer, Trinity Universal Insurance Co. ('Trinity'). Trinity advised Stevens that it agreed to provide Stevens with counsel and begin investigation of the matter, but that Trinity reserved the right to later deny coverage and withdraw from the defense. Trinity also expressly advised Stevens that because of the coverage dispute and the possibility that Trinity might withdraw from the defense, Stevens might wish to continue to retain an attorney at Stevens' expense to protect its interest in the litigation.

Trinity appointed Caldwell Roberts as Stevens' defense counsel in the action and, in conformity with Trinity's recommendation, Stevens continued to employ separate counsel, Michael Percy. Both counsel represented Stevens throughout the litigation and participated in all aspects of the litigation. The underlying suit went to trial and resulted in a jury verdict for Stevens.

Thereafter, Stevens filed a motion for summary judgment against Trinity seeking recovery of Percy's attorneys' fees and expenses. Trinity filed a cross-motion for summary judgment arguing, inter alia, that it had discharged any duty to defend by providing Roberts as defense counsel for Stevens. The district court found in Trinity's favor, holding that 'even when the insurer reserves the right to deny coverage, it is not obligated to pay for an attorney that the insured unilaterally decides to hire as an extra defense counsel.' Stevens appealed.

The 5th Circuit succinctly phrased the question before it as 'whether Trinity, as insurer, must reimburse Stevens, as insured, for attorneys' fees and costs Stevens incurred by hiring independent counsel to represent it in the Underlying Action, where Trinity provided Stevens with counsel, but reserved the right to deny coverage and withdraw from Stevens' defense.' As neither the Louisiana legislature nor the Louisiana Supreme Court had spoken on this issue, the court looked to other appellate court decisions for guidance.

The court noted that the 5th Circuit held in Nat'l Union Fire Ins. Co. v. Circle, Inc., 915 F.2d 986 (5th Cir. 1990) that an insured may recover fees for an attorney hired by the insured, as opposed to the insurer, if the attorney provided by the insurer fails to 'vigorously and adequately' defend the insured. However, as Stevens made no such contention with regard to Roberts, the court found Circle, Inc. inapposite. The court also rejected Stevens' reliance upon Smith v. Reliance Ins. Co., 807 So.2d 1010 (La. App. 5 Cir. 2002) and Belanger v. Gabriel Chems., Inc., 787 So.2d 559 (La. App. 1 Cir. 2001), which both held that in certain circumstances an insurer who contests coverage is liable for the attorneys' fees if the insured hires separate counsel. The court distinguished these decisions on the basis that both of those cases involved insureds who wished to reject the insurer's proffered counsel and instead employ independent counsel.

Finding no decision directly on point, the court concluded that Trinity was under no obligation to reimburse Stevens for Percy's fees. The court reasoned: 'what matters in this case is that Trinity provided Stevens with competent defense counsel in the Underlying Action, not whether Percy's contribution as independent counsel to Stevens was beneficial or whether the litigation was especially complex. ' The fact that Trinity reserved the right to later deny coverage does not negate the fact that it fulfilled its duty of providing Stevens with adequate counsel.

Multiple Plumbing Leaks Considered Separate Occurrences

In U.E. Texas One-Barrington, Ltd. v. General Star Indemnity Company; Fireman's Fund Insurance Company of Ohio (5th Cir. 5/19/03) 2003 WL21143063, the U.S. Court of Appeals for the 5th Circuit (applying Texas law) affirmed a lower court's grant of summary judgment in favor of two insurers holding that: 1) access costs were not recoverable under a policy that did not cover the water damage caused by long-term water leaks; and 2) plumbing leaks under each of 19 buildings were separate occurrences as a matter of Texas law for the purpose of determining the deductible under an excess policy.

U. E. Texas One-Barrington, Ltd. ('Texas One') owned the Oak Meadow Apartment Complex consisting of multiple residential and office buildings in San Antonio, TX. Several of the buildings suffered from foundation movement and above-ground damage resulting from plumbing leaks beneath the foundation. Texas One sued General Star Indemnity Company ('General Star') and Fireman's Fund Insurance Company ('Fireman's Fund') for breach of contract arising out of the insurers' refusal to pay Texas One's claims under a commercial property policy and an excess policy, respectively. General Star and Fireman's Fund removed the matter to federal court and subsequently moved for summary judgment.

General Star: Texas One argued that the General Star policy language required payment of the cost to access the underground plumbing even though payment for the damage caused by the leaks was barred by the 14-day continuous leakage exclusion and further argued that General Star admitted it was obligated to pay for the access cost because it made a partial payment of Texas One's access costs. The 5th Circuit rejected both arguments in short order citing Gen. Accident Ins. Co. v. Unity/Waterford-Fair Oaks, Ltd., 288 F.3d 651, 656 (5th Cir.2002) (Cost of accessing underground pipes was not covered and the parties' course of conduct cannot be considered to determine the meaning of an unambiguous contract.)

Fireman's Fund: Texas One argued that although each building was damaged by different leaks, there was only one occurrence for purposes of the Fireman's Fund policy. Texas One's argument rested upon the contention that all of the leaks could be traced back to defects in the materials and installation of the underground plumbing system. The Fireman's Fund policy provided 'excess over and above $1,000,000 ultimate net loss to the insured in each and every loss occurrence. ' The term loss occurrence means the total loss by perils insured against arising out of a single event.' Neither party contended that 'occurrence' was ambiguous as used in the contract or that the determination of the number of occurrences required a resolution of a factual dispute. Accordingly, the court found that the interpretation of 'occurrence' was a question of law.

The 5th Circuit held that each leak constitutes a separate occurrence as a matter of law. The court reasoned that under Texas law, 'the proper focus in interpreting 'occurrence' is on the events that cause the injuries and give rise to the insured's liability, rather than on the number of injurious effects.' Texas One maintained that the leaks could be traced back to defects in materials and installation of the underground plumbing system. Focusing on the specific event that caused the loss, the court found that the loss arose when the pipes broke, not when they were installed. Since no one building suffered a $1 million net loss, Texas One did not meet the $1 million per occurrence threshold under the Fireman's Fund policy.

The majority dismissed the dissent's lengthy distinction between the interpretation of 'occurrence' in liability policies from 'occurrence' in property loss policies stating that the court had already rejected the dissent's distinction in Ran-Nan Inc. v. General Accident Ins. Co., 252 F.3d 738, 739 (5th Cir.2001) (per curiam).

Policy Provision Applies to Claim of Each Separate Class Member

In Musmeci v. Schwegmann Giant Super Markets, Inc., No. 02-30246 (5th Cir. 6/11/03), the U.S. Court of Appeals for the 5th Circuit held that the self insured retention (SIR) in United States Fidelity & Guaranty's (USF&G) General Liability Policy which provided Excess Employee Benefits Liability Coverage applied to each plaintiff class member's claim and overturned the lower court's ruling that the SIR applied one time to the collective claims of each plaintiff class member. While the collective claims of the plaintiff's class exceeded the $250,000 SIR, no individual claim exceeded the SIR, and the judgment against USF&G was vacated.

In 1985, Schwegman Giant Super Markets, Inc., (SGSM) implemented a grocery voucher plan (the 'Voucher Plan') designed to supply SGSM retirees with a portion of their monthly food needs. Under this plan, SGSM issued vouchers to retirees, and these vouchers could then be used in lieu of cash to purchase goods in SGSM stores. In 1997, SGSM terminated the Voucher Plan one week before Mr. Schwegman sold SGSM. After being informed of the termination of the Voucher Plan, plaintiffs filed a class action suit under ERISA and Louisiana state law claiming that they were vested in a pension benefit plan.

The district court issued findings of fact and conclusions of law, ruling that the grocery Voucher Plan was a pension benefit plan under ERISA, that SGSM breached its fiduciary duty under ERISA, that Mr. Schwegmann was liable as a fiduciary to the plan, that the plaintiffs were entitled to monetary relief for benefits denied after SGSM's sale, and that USF&G's policy covered SGSM's liability, and that the policy's SIR applies once to the plaintiffs' claims collectively. On appeal, the 5th Circuit agreed with the district court except with respect to USF&G.

The SIR provision contained only one line reading: '$250,000 each claim.' Neither the SIR nor any other section of the policy defined the term 'claim.' The district court ruled that the failure to define this term rendered the policy ambiguous as a matter of law. Construing the policy against USF&G, the district court concluded that the term 'claim' referred to the single demand for coverage by the insured, SGSM, rather than the many claims made against SGSM.

The court found that this was too narrow of an interpretation of the policy. The court reasoned that under the basic tenets of Louisiana's law of contract interpretation, each of the policy's provisions must be read in light of the others. The court found that the meaning of 'claim' for the purposes of the SIR provision could be gleaned by reference to the use of the word in numerous other provisions of the policy. The court looked at other provisions of the USF&G policy that applied both to all coverages and those that applied to the specific coverage at issue and determined that the policy consistently referred to claims made 'against the insured' or claims 'by the employee.' Accordingly, the court held that the term 'claim' in the SIR provision, when read in light of these other provisions of the policy, was clear and unambiguous and provided that a 'claim' is the assertion of a legal right against the insured by a third party.

Having disposed of the theory that there was only a single claim for coverage, the court next considered whether or not there was a single claim on behalf of the plaintiff class or whether there were multiple claims on behalf of each member of the class. Relying on Colbert County Hospital v. Bellefonte Insurance Co., 725 F.2d 651 (11th Cir. 1985) and Maxim Manufacturing Corporation v. Alliance General Insurance Co. , 911 F.Supp. 239 (S.D. Miss. 1995), the court concluded that the SIR had to be applied to individual class members' claims because each individual claimant could have filed their own separate claim against SMSG. Where no individual claim exceeded the $250,000 SIR, the judgment against USF&G was vacated.

Stacking of Policy Limits Permitted for Occurrence Over Multiple Years

In Employers Insurance of Wausau v. Granite State Insurance Co., 2003 U.S. App. LEXIS 11111 (9th Cir. June 4, 2003), the 9th Circuit Court of Appeals addressed the question of whether the limits of multiple insurance policies could be 'stacked' to create coverage greater than one annual 'per occurrence' limit. Two insurance carriers argued over whether California law permitted such 'stacking.' The 9th Circuit relied on Stonewall Insurance Co. v. City of Palos Verdes Estates, 46 Cal. App. 4th 1810, 54 Cal. Rptr. 2d 176 (1996) to support its conclusion that such stacking was permissible. The court rejected an insurer's argument that Stonewall conflicted with another California court of appeal decision, FMC Corp. v. Plaisted & Cos., 61 Cal. App. 4th 1132, 72 Cal. Rptr. 2d 467 (1998). In FMC, the court held that when an occurrence takes place in multiple years, an insured may not recover an amount any greater than the highest occurrence limit for one policy period, reasoning that if the insured were entitled to stack policy limits, it would receive more coverage for an occurrence than the parties had bargained for. The 9th Circuit held that FMC was distinguishable from Stonewall and the facts before it. The court noted that another California court of appeal had reached a different decision from FMC. While the publication of that decision, Alpha Therapeutic Corp. v. The Home Insurance Co., 90 Cal. App. 4th 1330, 109 Cal. Rptr. 2d 698 (2001), was suspended by operation of law when the California Supreme Court granted review, the 9th Circuit concluded that it 'may consider unpublished state decisions, even though such opinions have no precedential value.' It noted that Alpha Therapeutic 'rejects a broad anti-stacking rule, holding that where an insured suffered for several years from injuries caused by a single 'occurrence,' recovery should not be limited to a single year's policy limit.' The 9th Circuit noted that the Alpha Therapeutic decision supported its conclusion that 'Stonewall accurately represents California law.' It concluded by noting that 'California courts have not broadly rejected 'stacking' in a primary insurer context. To the contrary, California courts have expressly approved stacking successive 'per occurrence, per year' policy limits where, as here, a single occurrence extends through more than one policy period.' The 9th Circuit also noted that its conclusion was consistent with the so-called 'horizontal exhaustion' rule, under which an excess policy will not attach until all primary insurance is exhausted. Therefore, by its decision, the 9th Circuit has answered a question subject to extensive debate ' does California permit stacking of primary policy limits when an occurrence takes place in more than one year? According to the 9th Circuit, the answer to that question is 'yes.'

Joseph P. Guichet, Lourdes Estevez Martinez and Seth A. Schmeeckle of Lugenbuhl, Wheaton, Peck, Rankin & Hubbard and Kirk Pasich of Howrey Simon Arnold & White, LLP contributed this month's case briefs.