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Mealey's Elder Law

January 31, 2024
Panel Affirms Order Granting Judgment To Annuity Insurer In Breach Of Contract Row

MIDDLETOWN, Ohio — An Ohio appellate court affirmed a lower court’s decision granting summary judgment to a life insurer in a breach of contract suit alleging that the insurer was complicit in alleged fraudulent transfers made from a decedent’s annuity accounts by his son, finding that the decedent’s daughter and grandson failed to provide evidence that the insurer committed breach of contract.
January 30, 2024
Long-Term Care Insurer Files Disclosure In Coverage Suit Over Health Care Expenses

PHILADELPHIA — American General Life Insurance Co. on Jan. 29 filed a corporate disclosure statement in a Pennsylvania federal court after removing to that court a breach of contract suit filed by a woman seeking coverage for past and future home health and long-term care expenses when the insurer denied her claims upon determining that she was no longer chronically ill.
January 30, 2024
5th Circuit: Cancer Center’s Federal Funding Doesn’t Waive Immunity In Age Bias Suit

NEW ORLEANS — A cancer center’s acceptance of federal funding doesn’t waive its sovereign immunity as an arm of Texas, a Fifth Circuit U.S. Court of Appeals panel ruled Jan. 29 in a three-page per curiam opinion, reversing a trial court’s denial of the center’s dismissal motion in an age bias suit by a former employee and remanding with instructions to dismiss.
January 30, 2024
Counsel In Probate Action Faces Sanctions For Possible AI Misuse

BROOKLYN, N.Y. — Probate counsel’s possible reliance on generative artificial intelligence isn’t problematic, but the fact that the lawyer didn’t take the simple steps required to confirm the accuracy of the material cited in a reply brief is, a judge in New York said in striking a pleading and setting a hearing for possible sanctions.
January 26, 2024
Wrongful Death Suit Over Deadly Alligator Filed Against Florida 55-Plus Community

FORT PIERCE, Fla. — The personal representative of the estate of a resident of a Florida retirement community on Jan. 25 filed a wrongful death suit against the company operating the community in a Florida state court, asserting that the woman’s death from an alligator attack near her home resulted from the company’s negligence in failing to warn of the danger caused by alligators or to remove them.
January 26, 2024
7th Circuit Denies US Foods Rehearing After Age Bias Ruling For Employee

CHICAGO — The Seventh Circuit U.S. Court of Appeals denied a petition for rehearing or rehearing en banc filed by US Foods Inc. after a panel reversed a trial court’s summary judgment ruling for the employer in an age discrimination case and found that the employee “presented significant evidence to establish an inference of discrimination.”
January 25, 2024
Plaintiffs Make Class Certification Arguments In DUFTA Row Involving Insurer

WILMINGTON, Del. — Asserting that their Delaware Uniform Fraudulent Transfer Act (DUFTA) claims “focus exclusively on Defendants’ conduct and circumstances,” policyholders and agents challenging an alleged scheme to strip capital from an insurance subsidiary on which more than 1 million policyholders depend for long-term care (LTC) disability benefits urged the Delaware Chancery Court to certify their proposed class.
January 24, 2024
Appeals Court: No Error In Medical Expert Exclusion In Nursing Home Care Case

CINCINNATI — The Sixth Circuit U.S. Court of Appeals said it’s “not a close call” that an expert retained to testify in medical malpractice suit against a nursing home failed to establish a “familiarity with the standard of medical care in Memphis” and found no error in a district court excluding his testimony.
January 19, 2024
Judgment Issued For Credit Union In Dispute With Heir Over Digital Account Access

GREENBELT, Md. — A Maryland federal magistrate judge granted summary judgment to a credit union in an heir’s suit against it alleging violations of federal and state law when denying him digital access to a decedent’s accounts, finding that there is no dispute regarding the fact that the heir failed to show his entitlement to access to the accounts under federal or state law.
January 19, 2024
3rd Circuit Affirms In Beneficiary And Guardian’s Row Over Estate’s Life Policy

PHILADELPHIA — The Third Circuit U.S. Court of Appeals on Jan. 18 affirmed a district court’s order granting summary judgment to the beneficiary of a life insurance policy in an insurer’s interpleader action regarding whether the policy proceeds belong to the guardian of the decedent’s estate or to the policy’s beneficiary, finding that pursuant to Pennsylvania law, a guardian lacks the power to surrender an insurance policy.
January 17, 2024
High Court Told ‘Chaos’ Will Ensue ‘In A World Without Chevron’ Deference

WASHINGTON, D.C. — The U.S. Supreme Court was told Jan. 17 that “chaos” will ensue “in a world without Chevron” deference by government attorneys, who urged it to apply stare decisis and uphold Chevron, which is being challenged in two cases arising out of federal fishing regulations.
January 18, 2024
South Carolina High Court Says Estate Fraud Suit Barred By Federal Court Rulings

COLUMBIA, S.C. — The South Carolina Supreme Court on Jan. 17 ruled that an estate representative’s fraud and breach of contract claims against Bank of America related to insurance premiums charged to decedents for their line of credit are barred by rulings of a federal district court and the Fourth Circuit U.S. Court of Appeals that equitable tolling did not apply to the statute of limitations.
January 18, 2024
New Jersey High Court Issues Judgment For Care Home In Class Fee Refund Dispute

TRENTON, N.J. — The New Jersey Supreme Court reversed and remanded a lower court’s order denying dismissal of a claim in a class action against a nursing home for violations of the New Jersey Consumer Fraud Act (CFA) regarding an entrance fee refund if a resident died or moved out, finding that a refund of 90% of the entrance fee is not merited because the referenced CFA provision applies only to food-related fraud.
January 17, 2024
N.Y. Panel Affirms Order Denying Judgment In Row Over Wrongful Hospice Admission

NEW YORK — A New York state appellate court affirmed a lower court’s order denying a medical practice, hospital and physician’s summary judgment motion in a medical malpractice suit related to a man’s purported wrongful admission into hospice for stage IV pancreatic cancer when he actually did not have pancreatic cancer, finding that the hospital and related parties failed to show that they did not depart from accepted standards of care or that any purported departure did not cause the man’s injuries.
January 17, 2024
Panel Affirms Judgment For Decedent’s Brother In Will Contest Over Undue Influence

ST. PAUL, Minn. — A Minnesota appeals court on Jan. 16 affirmed a lower court’s order granting summary judgment to a decedent’s brother in a suit filed by the decedent’s daughter seeking an adjudication of intestacy, finding that the evidence shows that the decedent was not unduly influenced and had the capacity to execute a will leaving her estate to her brother instead of her children.
January 17, 2024
Hawaii Panel Allows Some Claims Against Lender’s Attorney In Reverse Mortgage Case

HONOLULU — Two borrowers suing over foreclosure proceedings involving their reverse mortgages may proceed with certain fraud and elder abuse claims against their lender’s attorney and his firm, a Hawaii appellate panel ruled, opining in part that “the litigation privilege is not an absolute bar against an action by a borrower against a foreclosing lender’s attorney arising out of the attorney’s fraud on the court in a prior foreclosure action.”
January 16, 2024
Class Certification Sought In DUFTA Suit Concerning Long-Term Care Insurer

WILMINGTON, Del. — Policyholders who filed a Delaware Uniform Fraudulent Transfer Act (DUFTA) suit over what they allege were fraudulent transfers from an insurance subsidiary on which more than 1 million policyholders depend for long-term care (LTC) disability benefits filed a motion on Jan. 12 in Delaware Chancery court for class certification.
January 11, 2024
Panel Affirms Guardianship Order For Octogenarian As ‘Necessary To Keep Her Safe’

DES MOINES, Iowa — An Iowa appellate court on Jan. 10 affirmed a lower court order appointing an 82-year-old woman’s son as her guardian and conservator, finding that evidence supports the lower court’s conclusion that the woman is incapacitated and that the “court did not err in finding a limited guardianship or conservatorship would be inadequate.”
January 11, 2024
US Foods Seeks Rehearing After Summary Judgment Reversal In Age Bias Suit

CHICAGO — An employer accused of age discrimination by a fired warehouse supervisor filed a petition for rehearing en banc after a Seventh Circuit U.S. Court of Appeals panel reversed a trial court’s summary judgment ruling, finding that the former employee “presented significant evidence to establish an inference of discrimination.”
January 10, 2024
Judgment Granted For Sons, Insurer In Interpleader Dispute Over Life Policy

MINNEAPOLIS — A Minnesota federal court clerk on Jan. 9 filed a judgment awarding $9,862.58 in attorney fees to a life insurer and the remainder of a $250,000 life insurance policy to a decedent’s sons one day after a federal judge granted summary judgment to the insurer and the sons in a dispute with their father’s former domestic partner over the beneficiaries of his life insurance policy, finding that there is a lack of evidence to question whether the decedent “validly changed his beneficiary designation in the weeks before he died.”
January 09, 2024
Ohio Panel Affirms Judgment For Care Home, Says Assisting Patient Is Medical Claim

CLEVELAND — An Ohio appellate court affirmed a lower court’s grant of summary judgment to a skilled nursing facility and related entities in a breach of contract and negligence suit filed against them after a former resident fell and sustained leg and ankle fractures, finding the lower court’s decision correct because the fall, which occurred when aides were helping the resident move from a commode to her wheelchair, constituted a medical claim in the complaint that was filed after the applicable statute of limitations.
January 09, 2024
Estate Amends Complaint In Suit Against Son Over $842,000 In Promissory Notes

LITTLE ROCK, Ark. — The executrix of an estate filed an amended complaint in an Arkansas federal court for breach of contract, seeking to recover $842,000 in promissory notes issued to the decedent’s son, asserting that pursuant to the decedent’s will, the debt is an asset of the estate.
January 05, 2024
Order Granting Judgment For Estate Affirmed In Suit Alleging Fiduciary Duty Breach

CORPUS CHRISTI, Texas — A Texas appellate court on Jan. 4 affirmed a lower court’s grant of summary judgment to the executrix of an estate in a breach of fiduciary duty suit filed against the estate by the decedent’s brother, who alleged that the decedent mismanaged the administration of their father’s estate, finding that the executrix adequately established the statute of limitations defense for the brother’s failure to file the case within four years of the claims accruing.
January 03, 2024
11th Circuit Upholds Denial Of Vacation In ERISA Row With Recusal Violation

MONTGOMERY, Ala. — Saying in part that “we see no risk of injustice to the parties absent vacatur” despite a recusal violation, an 11th Circuit U.S. Court of Appeals panel issued an unpublished per curiam opinion upholding denial of a motion to vacate final judgment in a dispute over termination of retiree life insurance benefits.
December 21, 2023
Injunction Granted To Death Doula Over Cease-And-Desist Constitutional Concerns

FORT WAYNE, Ind. — An Indiana federal judge granted a death doula a preliminary injunction in her suit alleging that Indiana’s cease-and-desist order precluding her from conducting her business of advising people on death violates her free speech under the First Amendment, finding that the woman has shown “a likelihood of success on the merits” and will continue to incur “irreparable harm” if she cannot operate her business.