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Mealey's Elder Law

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.
December 21, 2023
3rd Circuit: Suit Not ‘Ripe’ In Insurer’s Row With Care Homes Over COVID Coverage

PHILADELPHIA — The Third Circuit U.S. Court of Appeals vacated and remanded a district court’s grant of judgment for an insurer seeking a declaration that a nursing home’s COVID-19-related policies’ provision requiring the nursing home to pay the first $3 million in litigation and claims costs applies to multiple events, one for each facility, finding that the district court lacked jurisdiction to determine “whether COVID-19 constitutes multiple health care events” is “ripe for review.”
December 18, 2023
Split Ohio Panel Says Granting Visitation To Grandfather In Child’s Best Interest

YOUNGSTOWN, Ohio — A split Ohio appellate court panel affirmed a lower court’s order that granted visitation to a maternal grandfather, finding that the father’s argument regarding the grandfather’s alleged poor judgment about conversations he allowed the child to hear was “without merit.”
December 15, 2023
Judge Grants Agent’s Motion To Amend, Add Care Home Executive To Negligence Suit

LEXINGTON, Ky. — A Kentucky federal judge on Dec. 14 granted a motion to amend a complaint filed by an agent pursuant to a power of attorney (POA) in a negligence suit alleging that a nursing home failed to provide adequate care for her brother, finding that amending the complaint to include the appropriate administrator is an “excusable” error.
December 15, 2023
Judge Won’t Reconsider $3.86M Fees Award In Deal Settling SAG-AFTRA ERISA Row

LOS ANGELES — Noting “the absence of any new facts or new law,” a California federal judge denied the plaintiffs’ motion for reconsideration of a $3,862,500 attorney fees award in a class settlement of a suit against the SAG-AFTRA Health Fund and related entities over benefit cuts and a merger.
December 15, 2023
Plaintiffs: Humana Uses Artificial Intelligence, Denies Senior Care In Bad Faith

LOUISVILLE, Ky. — Humana Inc. denies elderly patients Medicare Advantage Plan coverage to which they are entitled through the employment of artificial intelligence in place of actual doctors, plaintiffs claim in a class action filed in a Kentucky federal court.
December 14, 2023
Colorado Diagnostics Company Will Pay $90,000 To Settle EEOC’s Age Bias Case

DENVER — A Colorado molecular diagnostics company will pay $90,000 and furnish other relief to settle an age discrimination lawsuit by the Equal Employment Opportunity Commission, according to a consent decree signed by a federal judge in Colorado on Dec. 13.
December 14, 2023
Panel Affirms Order Denying Care Home’s Bid To Compel Arbitration In Fraud Suit

COLUMBIA, S.C. — A South Carolina appellate court on Dec. 13 affirmed a lower court order that denied a skilled nursing facility’s motion to compel arbitration in a negligence and fraud suit against it related to injuries sustained by a former resident after incurring repeated falls, finding, among other things, that the former resident’s wife lacked the authority to sign the arbitration agreement on his behalf.
December 13, 2023
Stay Granted In Elder Abuse Suit Over Failure To Follow California Insurance Code

FRESNO, Calif. — A California federal magistrate judge on Dec. 12 issued a stay in putative class action asserting claims for elder abuse and breach of contract related to a life insurer’s violations of provisions of the California Insurance Code by failing to provide notice of policies lapse or termination, finding that “good cause exists” to grant the stay pending the outcome of two Ninth Circuit U.S. Court of Appeals cases with “dispositive issues germane to this case.”
December 12, 2023
Arizona High Court Affirms Judgment For Beneficiary In Undue Influence Dispute

PHOENIX — The Arizona Supreme Court on Dec. 11 affirmed a trial court’s grant of summary judgment for a beneficiary in a suit filed by a decedent’s niece claiming undue influence related to a deed leaving properties to the beneficiary, finding that the appellate court erred when reversing the trial court decision and determining that an issue of fact remained as to whether the beneficiary exercised undue influence over the decedent.
December 11, 2023
High Court Denies Cert To Care Home Owner Subject To $38M Fraud Forfeiture Order

WASHINGTON, D.C. — The U.S. Supreme Court on Dec. 11 denied certiorari to a man arguing that the 11th Circuit U.S. Court of Appeals erred in rejecting his argument that he had a right to a jury determination regarding his $38.7 million forfeiture order related to his fraud, bribery and money laundering convictions in a health care scheme involving bribing physicians to have patients entered into assisted living and skilled nursing facilities he owned.
December 08, 2023
Elder Abuse Suit Against LTC Insurer Tossed For Not Following Reimbursement Terms

SAN FRANCISCO — A California federal judge dismissed without leave to amend a bad faith, breach of contract, anticipatory breach of contract and elder abuse suit filed against a couple’s long-term care (LTC) insurer for its failure to cover the wife’s claim for benefits, finding that “[t]he fundamental problem with their claims is that the insurance policy in question is a reimbursement policy” and the couple failed to incur or submit covered expenses for reimbursement.
December 08, 2023
2nd Circuit: Insurer Not Obligated To Defend Lawyer In Underlying Elder Abuse Suit

NEW YORK — The Second Circuit U.S. Court of Appeals on Dec. 7 affirmed a district court’s grant of judgment on the pleadings to an insurer seeking a declaration that it is not obligated to defend or indemnify a law firm and former partner accused of malpractice, breach of fiduciary duty, elder abuse and fraud in an underlying suit related to a land sale to the former partner’s company, finding that the lower court correctly determined that the policy exclusion related to activities of another business applied.