personal injury litigation news

VOLUME 8, ISSUE 7 / SEPTEMBER 2013
™
California Practice Guide
™
PERSONAL INJURY
LITIGATION NEWS
IN THIS ISSUE
Product Liability
Suit over Marine crushed
by helicopter fails to
state a claim, judge says
(S.D. Cal.).................................... 6
Product Liability
California jury rejects
design defect claim in
bike helmet injury suit
(Cal. Super. Ct.).......................... 7
COMMENTARY
The emerging risk of repetitive stress
head injury claims (Part 2)
Kathryn C. Thomas of Freeborn & Peters discusses how pending suits
against the NFL and the NCAA over the alleged failure to warn about the
long-term effects of concussions and repetitive head blows may affect
coverage defenses in youth concussion lawsuits, which have a potential
pool of claimants rising into the millions.
(See page 3)
ASBESTOS (CAUSATION)
Union Carbide asks California high court
to reverse award in asbestos case
The California Supreme Court should overturn a $600,000 judgment
against Union Carbide in an asbestos exposure suit because a lower court
applied too loose a causation standard in affirming the judgment, the
company says in a petition for review.
Strickland et al. v. Union Carbide Corp., No. S 212424, petition for review filed
(Cal. July 29, 2013).
“This case presents a recurring problem concerning the sufficiency of a plaintiff’s
proof of causation in worker asbestos-injury cases,” Union Carbide says.
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The company says the 2nd District Court of Appeal wrongly interpreted the causation
standard in cases of alleged exposure to multiple companies’ asbestos-containing
products set forth by the state Supreme Court in Rutherford v. Owens-Illinois Inc.,
16 Cal. 4th 953 (1997).
Under Rutherford, a plaintiff must show exposure and “prove with medical evidence
and to a reasonable medical probability that the exposure was a ‘substantial factor’
(Continued on page 2)
41390882
© 2013 Thomson Reuters
2 • SEPTEMBER 2013
California Practice Guide: Personal Injury Litigation News
contributing to the worker’s risk of developing his asbestos-related
disease,” Union Carbide argues.
The Rutter Group’s “California Practice Guide:
Personal Injury Litigation News”
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In this case, the company says, the lower courts have interpreted the
Rutherford test so laxly as to find that the plaintiff’s exposure to its
product was the primary cause of his fatal lung cancer without the
required medical evidence.
THE LOWER COURT RULINGS
A Los Angeles County Superior Court jury found Union Carbide
46 percent at fault for exposing Glen Strickland to asbestos in Calidria,
a joint compound the company sold.
Strickland’s wife, Lind, and their adult children said he used the product
in the 1960s while working as a drywall installer, which included
applying and sanding the joint compound. He later developed the lung
cancer mesothelioma, the family said.
The Superior Court entered final judgment against the company for
$598,000.
Union Carbide appealed the ruling to the 2nd District Court of Appeal,
arguing that the family overstated Strickland’s exposure to chrysotile,
the form of asbestos in Calidria.
The company said Strickland had also been exposed to amphibole
asbestos, which it said was found in high concentrations in a stick-on
spray he used when working on a movie theater construction job.
Union Carbide had argued in a filing with the appeals court that the
plaintiffs’ own expert, Dr. Samuel Hammar, never offered an opinion
as to “whether Strickland’s exposure to Calidria in particular made a
contribution to his risk of disease that was substantial in light of all
his other exposures.”
In affirming the judgment, the appeals court said “there was
substantial evidence from which the jury could conclude Strickland’s
exposure to Calidria played more than a negligible or theoretical
part in his risk of developing peritoneal mesothelioma.” Strickland v.
Union Carbide Corp., 2013 WL 2996570 (Cal. Ct. App., 2d Dist.
June 18, 2013).
The 2nd District turned town Union Carbide’s request for a rehearing
July 11.
THE RUTHERFORD TEST
Now Union Carbide is telling the state Supreme Court the appeals
court’s causation standard is too relaxed.
“The Court of Appeal has accepted a standard of proof for causation
that amounts to almost automatic liability for the supplier of any of any
asbestos-containing product to which the worker was exposed,” the
petition says.
(See ASBESTOS on page 7)
© 2013 Thomson Reuters
California Practice Guide: Personal Injury Litigation News
SEPTEMBER 2013 • 3
COMMENTARY
The emerging risk of repetitive stress head injury claims (Part 2)
By Kathryn C. Thomas, Esq.
Freeborn & Peters
(In Part 1, the author discussed the developing medical
science on head injuries, and the NFL and NCAA lawsuits.)
WHAT ARE REPETITIVE STRESS HEAD INJURY
CLAIMS?
Repetitive stress head injury claims most commonly refer to
claims that participation in contact sports caused chronic
traumatic encephalopathy (“CTE”) or a similar degenerative
condition of the brain in participants. CTE was originally
identified in boxers and mixed martial arts participants in
the 1920s. In 2002, scientists documented the first case of a
deceased football player with CTE.
Researchers have opined that CTE develops when an athlete
experiences repeated head trauma because the impact of the
brain against the inside of the skull causes tau, a naturally
occurring protein in the brain, to become dislodged.
In the brain, tau serves the function of holding microtubules,
hollow rods that serve as conduits between the brain
cells, together. When the tau becomes displaced, the
microtubules also become dislodged because the tau is no
longer holding them together. The displaced tau eventually
becomes insurgent, killing more and more of the brain’s
cells. Currently, CTE can only be diagnosed post mortem by
autopsying the brain and studying the tau distribution.
THE INSURANCE COVERAGE ISSUES
If the plaintiffs can prove that they are, in fact, damaged
and that the NFL, NCAA or other entities sued for repetitive
stress head injuries are liable for that damage, insurance
companies will likely assert a number of coverage defenses,
depending on the facts of each case and the underlying
plaintiffs’ allegations. This discussion of possible defenses
is not limited to the issues raised in the pending coverage
cases, but is intended to provide a broader overview of
possible applicable coverage issues in these types of cases.
Bodily Injury Did Not Take Place During the Policy
Period – Typically, coverage provided under liability
insurance is triggered by damage or injury occurring during
the policy term. Thus, as a threshold issue, insurers must
determine when the alleged bodily injury took place. To the
extent that a plaintiff does not allege that his/her injuries
took place during the applicable policy period, the insurer
can challenge coverage under the policy.
Intentional Conduct – As many of the lawsuits assert
claims such as misrepresentation, fraud and conspiracy,
insurers can disclaim coverage for intentional wrongdoing
and for bodily injury that was expected or intended.
Where the underlying plaintiff seeks to demonstrate that
the insured knew the plaintiff would suffer additional
concussions or sub-concussive blows to the head if he/she
continued to play the applicable sport, the insurer can assert
a defense to coverage based upon the “expected or intended
injury” exclusion.
Where the underlying facts allege that a player who had
a concussion was forced to continue playing, the insurer
can assert that the resulting injury was not caused by an
“occurrence,” which is typically defined in general liability
forms as “an accident.”
The following cases are examples of courts applying
California, New York and Pennsylvania law in the “expected
and intended” and “occurrence” insurance language context.
•
Kathryn C. Thomas is a partner in the litigation practice
group at Freeborn & Peters in Chicago. Her areas of
focus include complex disputes, e-discovery, insurance
coverage and regulation, intellectual property litigation,
and product liability. She chairs the firm’s diversity and
inclusion committee and is a founder of its women’s
leadership council.
© 2013 Thomson Reuters
California: There is no “accident” if all of the
insured’s acts are intentional, whether or not the
resulting injuries were “expected or intended.” Allstate Ins. Co. v. Salahutdin, 815 F.Supp. 1309,
1311 (N.D. Cal. 1992). Although there is a general
statutory presumption that a person intends the
ordinary consequences of his deliberate acts,
California courts have refused to extend this principle
to insurance disputes. Meyer v. PEIC, 233 Cal. App.
2d 321, 327 (Cal. Ct. App., 2d Dist. 1965). Moreover,
Section 533 of the California Insurance Code provides
4 • SEPTEMBER 2013
California Practice Guide: Personal Injury Litigation News
that “an insurer is not liable for a loss caused by a
willful act of the insured...” California courts provide
broader meaning for “expected” than “intended.” See Montrose Chem. Corp. v. Canadian Universal Ins.
Co., 861 P.2d 1153, 1164 (Cal. 1993) (pollution would
be “expected” if the insured knew or believed that
“its conduct was substantially certain or highly likely
to result in that kind of damage”).
•
•
New York: Under New York law, an insurer has
no obligation to defend a suit that alleges injuries
that were either intended or expected. Federal
Ins. Co. v. Cablevision Sys. Dev. Co., 637 F. Supp.
1568, 1576 (E.D.N.Y. 1986). However, “the courts
have distinguished between damages which flow
directly and immediately from an intended act,
thereby precluding coverage, and damages which
accidently arise out of a chain of unintended though
expected or foreseeable events that occurred after
an intentional act.” Id. See also County of Broome
v. Aetna Cas. & Surety Co., 540 N.Y.S.2d 620, 62223 (N.Y. App. Div., 3d Dept. 1989) (insurers not
required to defend county for dumping pollutants
because county’s actions were neither expected nor
intended under policy).
Pennsylvania: The standard for determining
whether an event was expected or intended by
the insured is whether the insured “acted even
though he was substantially certain that an injury
generally similar to the harm which occurred would
result.” USAA v. Elitzky, 517 A.2d 982, 991 (Pa.
Super. 1986). In Gene’s Restaurant v. Nationwide Ins.
Co., the Pennsylvania Supreme Court ruled that an
intentional, willful assault was not an “occurrence.” 548 A.2d 246, 248 (Pa. 1988). To establish an
occurrence, the resulting injury must not have been
of the “same general type” that was expected or
intended by the insured. State Farm Fire & Cas.
Co. v. Levine, 566 A.2d 318, 320 (Pa. Super. 1989). Intent may be inferred as a matter of law where
the insured’s conduct is inherently injurious, as in
cases of sexual assault and molestation. Aetna
Cas. & Sur. Co. v. Roe, 650 A.2d 94, 102 (Pa. Super.
1994). Intent, at least in the sexual assault realm,
may not be inferred if the plaintiff was of a sufficient
age to be able to form an intent to consent. Teti
v. Huron Ins. Co., 914 F. Supp. 1132, 1137 (E.D. Pa.
1996). Under Pennsylvania law, the exclusionary
rule applies “when the insured intends to cause
a harm.” United Servs. Auto. Ass’n v. Elitzky, 517
A.2d 982, 987 (Pa. Super. 1986). This rule provides
that insurance coverage is not excluded because
the insured’s actions are intentional unless he also
intended the resulting damage. Id.
Number of Occurrences – A court’s determination
regarding how many occurrences have taken place will likely
impact which insurance policies are triggered, the applicable
policy limits, the applicable deductible amounts and other
insurer’s obligations under the insurance policies. With
regard to repetitive stress head injury cases, the range of
possible occurrences is broad. Depending on the applicable
law, the number of occurrences may be determined to be
many, few or some number in between. For example, the
alleged failure of the NFL, NCAA or other team or governing
body to warn and protect its players could be determined to
be a single occurrence. On the other end of the spectrum,
each game could be deemed a separate occurrence. Or the
number of occurrences may be determined by the injuries to
the players. For example, courts may determine, on one end
of the spectrum that each practice and each game per player
is an occurrence or, on the other end of the spectrum, that an
administration’s supervision of all student athletes during a
policy period constitutes an occurrence.
Courts have not been consistent when determining the
number of occurrences; at the present time, California, New
York, and Pennsylvania law seems most relevant to the
pending actions and those three states are not consistent.
•
California: California has adopted the “causation”
approach for determining the number of
occurrences. See, e.g., State Farm Fire and Cas.
Co. v. Kohl, 131 Cal. App.3d 1031, 1034-35 (Cal.
Ct. App., 3d Div. 1982). “[A] single uninterrupted
course of conduct which gives rise to a number of
injuries or incidents of property damage is one
‘accident’ or ‘occurrence.’ On the other hand, if the
original cause is interrupted or replaced by another
cause, then there is more than one ‘accident’ or
‘occurrence.’” Id. Where a continuing loss arising
out of a single ‘occurrence’ triggers multiple policy
limits, an insured is entitled to “stack” the separate
occurrence limits in the subject policies, thereby
effectively obtaining “more coverage” than is listed
in the policy. Employers Insurance of Wausau v.
Granite State Insurance Company, 330 F.3d 1214,
1220-21 (9th Cir. 2003). The court found that the
policy should be limited to “per occurrence per
year.” Id.
•
New York: Although New York state law provides a
haphazard application of “number of occurrences,”
most New York courts have found that the number
of occurrences is governed not by the number
© 2013 Thomson Reuters
California Practice Guide: Personal Injury Litigation News
of persons injured, nor by the number of acts of
negligence committed by the insured, but by the
nature of the “unfortunate event.” “In determining
the number of occurrences for deductible purposes,
New York inquires whether multiple claims result
from ‘an event of an unfortunate character that
takes place without one’s foresight or expectation.’” Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp.,
73 F.3d 1178, 1213 (2d Cir. 1995) (quoting Arthur A.
Johnson Corp. v. Indemnity Ins. Co. of North America,
7 N.Y.2d 222, 228 (N.Y. 1959)). In assessing whether
multiple claims all arise out of a single event, New
York courts apply the average person’s view of
whether the underlying circumstances giving rise to
diverse claims are all part of a single “unfortunate
event.” Arthur A. Johnson Corp., 7 N.Y.2d at 229. Some subsequent cases add that the cause of injury
must be “continuous and not interrupted by other
independent causes.” See, e.g., Allied Grand Doll
Mfg. Co., Inc. v. Globe Indem. Co., 15 A.D.2d 901, 901
(N.Y. App. Div., 1st Dep’t 1962). Reckless behavior or a calculated risk is an “occurrence”
unless the insured intended the resulting harm. Continental
Cas. Co. v. Rapid-American Corp., 609 N.E.2d 506, 510 (N.Y.
1993). “Resulting damage can be unintended even though
the act leading to the damage was intentional.” Id.; see
also McGroarty v. Great Am. Ins. Co., 36 N.Y. 2d 358, 364
(N.Y. 1975). However, where the insured not only took a
calculated risk but acted with near certainty that a loss would
occur, courts have refused to require coverage. Continental
Grain Co. v. Fireman’s Fund Ins. Co., No. 95 Civ. 3871, 1997
WL 86392 (S.D.N.Y. Feb. 27, 1997). I n Stonewall Ins. Co. v.
Asbestos Claims Mgmt. Corp., the 2nd Circuit found that each
building installation including asbestos-containing products
was a separate occurrence. 73 F.3d at 1215. Determining
the single “unfortunate event” can be difficult, and often
weighs against a finding of multiple occurrences. In Endicott
Johnson Corp. v. Liberty Mut. Ins. Co., for instance, the U.S.
District Court for the Northern District of New York found
that the process of repeatedly dumping waste improperly
was a single occurrence at each site where waste products
were present. 928 F.Supp. 176, 181 (N.D.N.Y. 1996). See also
Consolidated Edison Co. of New York, Inc. v. Employers Ins. of
Wausau, 1997 WL 727486 (S.D.N.Y. Nov. 21, 1997).
•
Pennsylvania: Pennsylvania has applied the
“cause theory,” which holds that damage from a
single cause is a single occurrence. Appalachian
Ins. Co. v. Liberty Mutual Ins. Co., 676 F.2d 56, 61
(3d Cir. 1982). This has been applied in the sex
SEPTEMBER 2013 • 5
discrimination context. Id. at 62-63. It has also
been applied in the context of asbestos litigation. In Centennial Ins. Co. v. Lumbermens Mutual Cas.
Co., the insured’s asbestos claim was deemed to
have arisen from a single occurrence based on a
cause analysis. 677 F.Supp. 342, 347-348 (E.D. Pa.
1987). However, in Pittsburgh Corning Corp. v.
Travelers Ind. Co., the court subsequently found
that each separate asbestos claim at each site
was a new “occurrence.” 1988 WL 5301 (E.D. Pa.
Jan. 20, 1988). Claims for breach of contract are
not covered because they are not an “accident
or occurrence contemplated or covered by the
provisions of a general liability insurance policy.”
Redevelopment Auth. of Cambria County v. Int’l Ins.
Co., 685 A.2d 581, 589 (Pa. Super 1996).
Medical Monitoring – Insurers can challenge coverage
for medical monitoring claim costs as such costs would
not qualify as “damages” as that term is used in insurance
policies. Additionally, because medical monitoring costs
are incurred for the purpose of determining whether an
individual will develop a disease or sickness in the future,
insurers can assert that such costs do not qualify for
coverage as costs incurred “because of bodily injury during
the policy period.”
Scope of Coverage – Some insurance policies contain
Participant Liability Sports endorsements, which provide
coverage for “those sums which you become legally
obligated to pay because of actions brought against you
for ‘bodily injury or property damage’ by a participant while
practicing or participating in any contest or exhibition of an
athletic or sports nature sponsored by you.” “Participant”
is defined to include players. Insurers may want to disclaim
coverage to the extent that the insured did not sponsor an
event at which the player allegedly sustained bodily injury.
Some policies may contain exclusions applicable to “athletic
or sports participants,” “sports contests” or “athletic
activities.” These exclusions serve to limit coverage.
Athletic exclusions may also be included in the medical
payments coverage. Some policies exclude “expenses for
bodily injury to a person injured in athletics” or “expenses
for bodily injury while the person is practicing, instructing,
or participating in any physical exercise or games, sports, or
athletic contests.”
Some of the policies at issue may also contain endorsements
that limit coverage to specified events or particular games. These endorsements also serve to limit coverage.
© 2013 Thomson Reuters
6 • SEPTEMBER 2013
California Practice Guide: Personal Injury Litigation News
Known Risk, Known Loss and Assumption of the Risk –
Common law known risk, known loss and assumption of the
risk defenses to coverage may apply. To the extent that the
facts show that the athletes knew of the risk of concussions
and repetitive head trauma from participating in high-impact
sports and assumed the risk by choosing to participate in
such activities, such defenses should be raised.
To read updates on the cases mentioned in this article and
other sports-related head injury cases, visit http://www.
freeborn.com/industry/insurance-and-reinsurance.
See Haning, Flahavan & Kelly, CAL. PRAC. GUIDE:
PERSONAL INJURY (The Rutter Group 2012):
•
“Special relationship” liability; sports facility operators
and athletes - 2:1993
•
Assumption of the risk; “occupational” - 3:239.16;
3:241-241.1
•
Insurance; subrogation rights of carrier - 1:55;
3:53-53.1; 4:350; 4:469; 4:543.4; 5:206-209
•
“If plaintiff intends to allege a manufacturing defect, [he]
must state with some particularity how the defendants’
product either deviated from GE’s intended result or design
or how the product deviated from other identical products,”
Judge Curiel wrote, adding that “threadbare recitals” of a
tort’s elements do not suffice to state a cause of action.
“Plaintiff simply alleges that GE and other defendants
manufactured a defective product, the product was used by
[Staff] Sgt. [Alexis] Fontalvo and Sgt. Fontalvo suffered fatal
injuries as a result,” the judge noted.
The Fontalvos may amend their complaint, which alleges
strict product liability, negligence and breach of warranty
against the manufacturers of the Sikorsky CH-53E Super
Stallion that crushed Alexis Fontalvo to death as he was
troubleshooting it at Marine Corps Air Station Miramar in
San Diego, the judge held. He gave the plaintiffs 20 days to
refile.
The decision is the second major ruling against the
Fontalvos. In June Judge Curiel rejected their motion to
remand the suit to the San Diego County Superior Court,
finding after months of sparring that the case belongs in the
District Court under federal officer jurisdiction because the
Defense Department at least arguably directed the Super
Stallion’s design and manufacture.
Medical monitoring damages - 3:60-65.17
PRODUCT LIABILITY
Suit over Marine crushed
by helicopter fails to
state a claim, judge says
To proceed further, the Fontalvos will now have to recast
their claims to satisfy the federal pleading standard, which
the U.S. Supreme Court has refined twice since 2007, in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
The mother and young son of a Marine who died in
2011 when the military helicopter he was repairing
collapsed on him cannot proceed with a lawsuit
against the aircraft’s manufacturers without alleging
more specific claims, a San Diego federal judge has
decided.
Fontalvo v. Sikorsky Aircraft Corp. et al., No. 3:13-cv-00331,
2013 WL 4401437 (S.D. Cal. Aug. 15, 2013).
U.S. District Judge Gonzalo P. Curiel of the Southern District
of California dismissed Norma and Dominic Fontalvo’s
wrongful-death suit Aug. 15, finding that the plaintiffs
dressed up legal conclusions as factual allegations without
including enough detail to support their claims against GE
Aviation Systems and Sikorsky Aircraft Corp.
Under Twombly and Iqbal, a plaintiff must allege facts
sufficient, if true, to support their cause of action and
detailed enough to put the defendant on notice about the
specific allegations it will have to dispute. The Fontalvos
have not done that, Judge Curiel said.
“Plaintiff’s complaint fails to sufficiently state what
particular component or product was allegedly defective,
much less allege how those components deviated from an
intended result,” he wrote.
See Haning, Flahavan & Kelly, CAL. PRAC. GUIDE: PERSONAL INJURY (The Rutter Group 2012):
•
Product liability claims; causation - 2:1785; 2:2432-2435
•
Pleadings; “fact pleading” requirement - 5:424; 5:438
© 2013 Thomson Reuters
California Practice Guide: Personal Injury Litigation News
SEPTEMBER 2013 • 7
“Our hearts certainly go out to Mr. Sohn and his family,”
Yukevich said in the media release. “But cases like this are
of exceptional significance because they demonstrate that,
given a safe product and a coherent defense, most juries will
exercise basic common sense despite their sympathies for
the plaintiffs.”
PRODUCT LIABILITY
California jury rejects
design defect claim
in bike helmet injury suit
A Los Angeles jury has decided that Easton-Bell
Sports’ Giro Pneumo model bicycle helmet is not
defective, rejecting a cyclist’s claim that its design
was ineffective and allowed him to suffer severe
brain damage in a 2009 accident.
Sohn v. Easton-Bell Sports Inc., No. LC095289, verdict
returned (Cal. Super. Ct., L.A. County Aug. 14, 2013).
The jury in the Los Angeles County Superior Court rendered
its verdict for the sports equipment maker following five
hours of deliberation that capped a three-week trial, defense
attorney James J. Yukevich said in a media statement.
Jurors found that the Giro Pneumo helmet’s design was
“not a substantial factor” in causing plaintiff Jeffrey Sohn’s
injuries. The incident occurred as Sohn was nearing the
end of an 85-mile bike ride near Sunol, Calif., according to
Yukevich.
Sohn sued Easton-Bell, claiming the helmet was defectively
designed because of its internal “RocLoc” system that
caused the helmet to rotate.
The rotation allowed the helmet to leave the left side of his
head unprotected as it hit the pavement during the crash,
Sohn claimed. He said the traumatic brain injury he suffered
left him unable to enjoy a normal life and prevented him
from enjoying cycling, one of his favorite activities.
At trial, attorneys for Easton-Bell argued that Sohn’s “helmet
rotation” theory was impossible and said scratch patterns
on his helmet contradicted the testimony offered by his
expert witnesses. The company also maintained that Sohn
improperly wore the helmet too high at the time of the
accident, contrary to instructions.
See Haning, Flahavan & Kelly, CAL. PRAC. GUIDE:
PERSONAL INJURY (The Rutter Group 2012):
•
Product liability claims; causation - 2:1785; 2:2432-2435
•
Investigation of - 2:230-231
•
Design changes - 2:286-300
•
History of product - 2:280-285; 2:301
•
Industry standards - 2:340-343
•
Obtaining product - 2:232-273
•
Similar claims by others - 2:310-315; 6:19
•
Similar products - 2:350
•
Use instructions - 2:320-326
•
Warnings - 2:320-326
(ASBESTOS continued from page 2)
The appeals court’s ruling was a “dumbing down” of
Rutherford’s causation test, because the panel could not
explain how the jury could reach its decision in the absence
of medical evidence to guide it, Union Carbide says. The
company wants the state high court to grant review to clarify
how courts should apply Rutherford’s test for causation in
asbestos litigation.
See Haning, Flahavan & Kelly, CAL. PRAC. GUIDE:
PERSONAL INJURY (The Rutter Group 2012):
•
Rutherford v. Owens-Illinois Inc. - 2:1799; 2:2407;
2:2409
•
Asbestos-related injury or death; causation 2:1823; 2:2405; 2:2409; 5:180.2
•
Appeals; order denying motion to vacate and enter
different judgment - 10:143
© 2013 Thomson Reuters