Jul. 30-Aug 3, 2007 6th Circuit Published Decisions (1 Ky Published Case; 2 NPO)

Opinion	Pub Date	Short Title/District
07a0287p.06	2007/07/30	Natl Sur Corp v. Hartford Cslty Ins     Western District of Kentucky at Louisville INSURANCE: EXCESS INSURER'S RECOURSE AGAIN PRIMARY INSURER FAILURE TO SETTLE WITHIN LIMITS ROGERS, Circuit Judge. When a primary insurer against tort liability refuses to settle and then loses at trial for amounts greater than its coverage limits, what recourse does an excess insurer have against the primary insurer? This case involves the issue of whether, under Kentucky law, an excess insurer can recover against a primary insurer pursuant to the doctrine of equitable subrogation, either for the primary insurer’s failure in good faith to settle a claim or for the primary insurer’s failure to investigate whether an insured has other insurance. The excess insurer in this case, National Surety Corporation, argues that the primary insurer, Hartford Casualty Insurance Company, acted in bad faith by failing to settle a tort claim against their mutual insured, Sufix U.S.A., and thereby exposed Sufix to excess liability.1 National Surety seeks to step into Sufix’s shoes, pursuant to the doctrine of equitable subrogation, to assert this bad-faith claim. National Surety also seeks to assert a claim against Hartford for Hartford’s failure to discover that Sufix was insured by National Surety. The district court held that National Surety did not have a cause of action under Kentucky law, and accordingly granted Hartford’s motion to dismiss. We reverse the district court’s order because the Supreme Court of Kentucky would likely recognize a cause of action in this case. Kentucky law already permits an insured to sue a primary insurer for bad faith failure to settle a claim. Kentucky law also recognizes the doctrine of equitable subrogation, which permits an insurance company to “step into the shoes” of the insured and recover what the insured would have been able to recover against a tortfeasor. Combining these two principles to allow an excess insurer to recover from a primary insurer is a logical extension of these principles and furthers Kentucky’s policy goals of encouraging fair and reasonable settlements and preventing third parties from profiting from an insured’s insurance coverage. However, the district court’s order properly dismissed National Surety’s failure-to-investigate claim because an insured does not have a cause of action under Kentucky law against its insurer for failing to discover an insured’s other sources of insurance.
07a0288p.06	2007/07/31	Michael v. Caterpillar Fin Serv     Middle District of Tennessee at Nashville RONALD LEE GILMAN, Circuit Judge. Shonta Michael, an African-American employee of Caterpillar Financial Services Corporation, filed this employment-related action arising out of a disciplinary episode that began in late January of 2004. At that time, Caterpillar management placed Michael on a 90-day performance plan in response to various complaints lodged against her. Michael alleges that Caterpillar (1) discriminated against her by taking disciplinary action based on unfounded complaints, (2) retaliated against her for raising complaints of her own, and (3) created a racially hostile work environment. The district court granted summary judgment in favor of Caterpillar regarding all of Michael’s claims. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0289p.06	2007/07/31	Harnden v. Ford Mtr Co     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Glenn Harnden appeals the district court’s order granting summary judgment to defendant Jayco as to Harnden’s claims based on alleged defects in a Jayco-manufactured Recreational Vehicle. For the reasons below, we AFFIRM the judgment of the district court.
07a0290p.06	2007/07/31	Denhof v. Grand Rapids     Western District of Michigan at Grand Rapids MERRITT, Circuit Judge. In this employment retaliation case under Title VII and Michigan state law, plaintiffs-appellants Patricia Denhof and Renee LeClear appeal the District Court’s order granting the defendant’s alternative motions for judgment as a matter of law under Rule 50, Fed. R. Civ. P.,1 a new jury trial under Rule 59, Fed. R. Civ. P.2 and for a substantial common law remittitur of the compensatory damages awarded by the jury.3 Grand Rapids also cross-appeals six decisions of the district court, primarily related to evidentiary issues and damage computations. For the reasons discussed below, we reverse the district court’s alternative orders granting judgment as a matter of law for the defendant and a new jury trial. We affirm the grant of remittitur. We also affirm the district court’s decisions on each of the defendant’s six cross-appeals.
07a0291p.06	2007/08/02	Barber v. Overton     Western District of Michigan at Grand Rapids KENNEDY, Circuit Judge. This case involves the Michigan Department of Corrections’ (MDOC) release of several corrections officers’ social security numbers and birth dates to prisoners held at the Ionia Maximum Security Correctional Facility (IMAX), which houses male prisoners KENNEDY, Circuit Judge. This case involves the Michigan Department of Corrections’ (MDOC) release of several corrections officers’ social security numbers and birth dates to prisoners held at the Ionia Maximum Security Correctional Facility (IMAX), which houses male prisoners
07a0292p.06	2007/08/02	O'Neill v. Kemper Insurance     Southern District of Ohio at Columbus BOYCE F. MARTIN, JR., Circuit Judge. Deborah P. O’Neill brought an action against Kemper Insurance Companies and Lumbermen’s Mutual Casualty Company alleging four claims for relief: (1) declaratory judgment as to the issue of reimbursement for attorneys’ fees, costs and expenses under a professional liability insurance policy, (2) breach of contract, (3) bad faith, and (4) promissory estoppel. O’Neill moved for partial summary judgment on her claim for breach of contract. Defendants opposed her motion and moved for summary judgment on all of her claims. The district court denied O’Neill’s motion and granted defendants’ motion. We now AFFIRM.
07a0293p.06	2007/08/03	Natl Ecological v. Clifford     Western District of Tennessee at Memphis CLAY, Circuit Judge. The Stokes Creek canal is a channelized stream in western Tennessee. Defendants, the West Tennessee River Basin Authority (the “WTRBA”) and the Tennessee Department of Environment and Conservation (collectively the “State”), wish to transform 1.5 miles of this stream into a 2.4 mile “meandering channel,” which, according to the State, would mimic the natural conditions of a stream and provide significant environmental benefits. This project is known as the Stokes Creek Restoration Project (the “Restoration Project”). The State intends to implement the Restoration Project independently of the Army Corps of Engineers (the “Corps”), who is primarily responsible for the West Tennessee Tributaries Project, a federal project to improve rivers and other waterways in the same general geographic area. On October 3, 2005, the State filed a motion to clarify its obligations under a 1985 consent decree known as the “Agreed Order,” seeking a declaration from the district court that the Agreed Order did not prohibit the State from implementing the Restoration Project. Plaintiff National Ecological Foundation and Intervenors National Wildlife Federation and Tennessee Wildlife Federation, f/k/a Tennessee Conservation League (collectively “NEF”) opposed the motion on the ground that the Agreed Order prohibited the State from undertaking the Restoration Project. The district court denied the State’s motion for clarification; the State subsequently filed a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), which the district court also denied. The State then brought this appeal challenging the district court’s denial of its motion to alter or amend judgment. For the reasons stated below, we REVERSE the district court’s denial of the State’s motion for clarification and REMAND with instructions that the district court grant the State’s motion for clarification consistent with this opinion.
07a0294p.06	2007/08/03	Williams v. Grosse Pointe Park     Eastern District of Michigan at Detroit JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Stephanie Williams filed the instant civil rights action on behalf of Terrance Williams, Jr., against defendants-appellees the City of Grosse Pointe Park and Officer Michael Miller of the Grosse Pointe Park Police Department. In their suit under 42 U.S.C. § 1983, plaintiffs alleged that Miller violated Williams’s rights under the Fourth Amendment by subjecting him to an unreasonable seizure. Plaintiffs further alleged that Grosse Pointe Park is liable under § 1983 for the failure of its police department adequately to train Miller. The district court granted summary judgment in favor of defendants and held, as a matter of law, that Miller’s conduct in stopping Williams’s flight was objectively reasonable and that Miller therefore did not violate Williams’s constitutional rights.1 With respect to Grosse Pointe Park, the district court held that there could be no municipal liability under § 1983 in the absence of a proven constitutional violation on the part of Miller, its agent. Plaintiffs subsequently appealed, arguing that there are issues of material fact as to the reasonableness of Miller’s conduct precluding resolution of their claims against Miller and Grosse Pointe Park on a motion for summary judgment. Because we agree with the district court that no rational juror could conclude that Miller acted unreasonably, we affirm the decision of the district court.
07a0295p.06	2007/08/03	Lowery v. Euverard     Eastern District of Tennessee at Knoxville LAWRENCE P. ZATKOFF, District Judge. Plaintiffs brought suit in federal court after they were dismissed from their high school football team. Defendants brought a motion for summary judgment based on qualified immunity, which the district court denied. On appeal, Defendants argue that Plaintiffs’ dismissal was permissible under the rule governing student speech set forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). For the reasons set forth below, we REVERSE the district court’s denial of Defendants’ motion for summary judgment.

Nonpublished Decisions out of Kentucky

Opinion	Pub Date	Short Title/District
07a0534n.06	2007/07/30	Brewer v. Cedar Lake Lodge     Western District of Kentucky at Louisville CLELAND, District Judge. Plaintiff-Appellant Aria Brewer initiated this action against Defendant-Appellee Cedar Lake Lodge, Inc. (“Cedar Lake”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.040. Brewer alleged that her employer, Cedar Lake, decided to not hire her for a newlycreated position because of her race. The district court granted summary judgment to Cedar Lake, finding that Brewer had failed to present sufficient evidence to establish a prima facie case of discrimination either by direct or circumstantial evidence. The district court also found in the alternative that Brewer could not establish that Cedar Lake’s proffered legitimate business reason for selecting a different candidate was pretextual. Brewer appeals, asserting that she presented both direct and circumstantial evidence of discrimination sufficient to withstand Cedar Lake’s summary judgment challenge. Brewer also argues that the district court applied the incorrect standard when analyzing her prima facie case. Although we disagree with Brewer in part – she did not present direct evidence of discrimination – we agree with her that she at least presented circumstantial evidence of racial discrimination affecting the employment decision and enough evidence to show that she was similarly situated compared to the person who was awarded the position. We vacate the district court’s grant of summary judgment and remand for further proceedings.
07a0538n.06	2007/07/31	Peoples Bank & Trust v. Burns     Western District of Kentucky at Bowling Green ALICE M. BATCHELDER, Circuit Judge. Peoples Bank & Trust Co. appeals from the order of the district court affirming the decision of the bankruptcy court declining to apply the “earmarking doctrine” to a post-bankruptcy petition transfer. We reverse.
07a0540n.06	2007/08/01	Mackey v. USA     Eastern District of Kentucky at Lexington SOLOMON OLIVER, JR., District Judge. Plaintiff-Appellant, AnJanetta Mackey (“Plaintiff-Appellant”), filed this action in the United States District Court for the Eastern District of Kentucky, alleging that Defendant-Appellee, United States of America “Defendant-Appellee” or “United States”), was liable under the Federal Tort Claims Act (“FTCA”) for the negligent death of her husband, Clifford James Mackey (“Mackey”). The district court granted the United States’ motion to dismiss for lack of subject-matter jurisdiction. For the reasons that follow, we AFFIRM the judgment of the district court.