Chinese Drywall Registration Deadline Extended

The deadline to register for the Chinese drywall global settlement has been extended. The previous deadline was tomorrow May 25th. This afternoon, Judge Fallon, by Order, extended the deadline until June 24th.

If you have not registered for the settlement and you filed a claim over Chinese drywall on or before December 9, 2011, you need to do so immediately. If your home has Knauf drywall markings and you had not filed a lawsuit on or before December 9, 2011, you need to contact a Chinese drywall attorney IMMEDIATELY.

U.S. Supreme Court Rules on Attorney's Fee Issue in Vaccine Injury Fund Case

The National Childhood Vaccine Injury Act of 1986 established a no-fault compensation system to stabilize the vaccine market and expedite compensation to injured parties. Under the Act, a proceeding for compensation is “initiated” by service upon the Secretary of Health and Human Services and “the filing of a petition containing” specified documentation with the clerk of the Court of Federal Claims, who forwards the petition for assignment to a special master. 42 U. S. C. 300aa–11(a)(1).

An attorney may not charge a fee for services in connection with such a petition, but a court may award attorney’s fees and costs incurred by a claimant in any proceeding on an unsuccessful petition, if that petition was brought in good faith.

In a recent opinion of the United States Supreme Court in Sebelius v. Cloer, the Court held that An untimely NCVIA petition may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim.

In 1997, shortly after receiving her third Hepatitis-B vaccine, Cloer began to experience symptoms that led to a multiple sclerosis (MS) diagnosis in 2003. In 2004, she learned of a link between MS and the Hepatitis-B vaccine, and in 2005, she filed a NCVIA claim. The special master concluded that Cloer’s claim was untimely because the Act’s 36-month limitations period began to run when she had her first MS symptoms in 1997.The Federal Circuit agreed. Cloer then sought attorney’s fees and costs. The Federal Circuit ruled in Cloer’s favor. The Supreme Court affirmed.

Nothing in the attorney’s fees provision suggests that the reason for the subsequent dismissal of a petition, such as untimeliness, nullifies the initial filing. An NCVIA petition delivered to the court clerk, forwarded for processing, and adjudicated before a special master is a “petition filed under section 300aa–11.” The government’s contrary position is inconsistent with the fees provision’s purpose, which was to avoid limiting petitioners’ ability to obtain qualified assistance by making awards available for “non-prevailing, good-faith claims.”

 

In Admiral Ins. Co. v. Price-Williams, No. 1110993, Price-Williams was attacked and beaten at the Kappa Nu house (Kappa Nu being the local chapter of Kappa Sigma) at the University of South Alabama.  His attackers were Howard, Dean and Baber.  Howard was not a Kappa Nu member, Dean was the chapter president and Baber was the chapter vice-president. 

In addition to suing Dean and Baber because of their involvement in the actual attack, Price-Williams asserted that both were liable for wrongfully failing “to implement the risk-management program Kappa Sigma required of local chapters, which program, Price-Williams alleged, would have either prevented the assault entirely or, at a minimum, limited its duration and intensity.” 

After a judgment was obtained against Dean and Baber and Admiral Insurance refused to indemnify them as to the judgment, Price-Williams brought a “direct-action” against the insurer.  The subject Admiral CGL policy contained the typical “assault and/or battery” exclusion. 

The Alabama Supreme Court held that this exclusion applied not only to claims predicated on Dean and Baber’s participation in the actual attack despite non-insured Howard’s participation but also applied to the claims that Dean and Baber were remiss in failing to implement the risk-management program.  As to the latter, the Supreme Court observed that Price-Williams suffered a “single indivisible injury” because it was impossible to “segregate” an injury suffered as a result of the attack and an injury suffered because there was no risk-management program.  Therefore, the exclusion applied and Admiral had no obligation to indemnify or pay the judgment.