Victims severely injured a car crash, rear-end collision , or vehicle rollover, will require time to recover. In our experience as personal injury attorneys for the last 30 years we have seen accident victims undergo long-term confusion/agitation and physical struggles. The victims family members are right there struggling with them as well. The physi�cian knows pre�cisely where the head is located. Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as a result of negligence. However, malpractice suits are often complex and costly to win. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney who will discuss your case with you, and help you determine your best options. �0 Appellant brought an action against appellees, attorney and law firm, in tort for malpractice and for breach of a contract between the parties or, alternatively, on a contract between appellees and another whereby appellant claimed third-party beneficiary status. The contract was alleged to pertain to rendering a title opinion on a piece of property and searching certain records in the Grady County Clerk's Office. Appellees filed a motion to dismiss relying on the bar of the two year limitation period for torts found at 12S. 1981 � 95 (Third). In response to the motion appellant waived its tort claim and elected to proceed in contract. It argued the contract claim was not barred having been brought within the three year limitation period found at 12S. 1981 � 95 (Second) for oral contracts. The trial court sustained the motion apparently concluding the action had to be brought in tort. The Court of Appeals affirmed. Held: Taking, as we must, all well-pleaded facts contained in the petition as true, appellant stated a claim based in contract and it was improper at the pleading stage to dismiss the case as barred by the two year limitation period found at � 95 (Third). Coalfield 37719.
47-year-old male was killed when the defendant driver crossed a paved median in front of him. The 47-year-old male was driving his motorcycle and died at the scene of the accident. This settlement amount reflects the total available insurance. Welcome to the Website of Evan Aidman - Trusted Philadelphia Personal Injury Attorney! Evan Aidman is a creative innovative legal mind. He has perfected ideas and strategies for presenting riveting persuasive arguments to juries and insurance companies. For over three decades Mr. Aidman has tirelessly and relentlessly advocated for those suffering from personal injuries. His knowledge expertise and success as an exemplary personal injury attorney have established him in the forefront in this highly specialized area of the law. Mr. Aidman has authored the highly successful book Winning Personal Injury Cases the bible of personal injury law for attorneys seeking. read more Full thickness burns caused by defective hair product ( Matthew Sowell ) 04/19/2013 - Delta hospitals get medical equipment for neonatal care 07/11/2013 - Centre welcomes Supreme Court order on criminals in politics Dr. Charshafjian was very helpful, polite, and professional. She throughly explained the treatments and my options to me. She made me feel like an individual and not just another patient. I thoroughly enjoyed my visit and I would strongly refer others to see her.
Helped 100s of families, both before and after problems arise. Nassau authorities are looking for a Hempstead dentist who failed to appear in court yesterday to face charges of insurance fraud. (Nov 4, 2005) Sentry Dental Products : - Exam Gloves Teeth Whitening Restoratives Preventives Overstock and Closeout Cements & Liners Crown & Bridge Products Disposables Evacuation Finishing & Polishing Impression Products Infection Control Products dental. The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden. Conclusory references to decency, moderation, restraint, full progress, and moral judgment are not enough. If one or more of these four rules were violated, then you have a medical malpractice case. We know that within this list, one element causes another. Breach of care that is caused by a proximate cause impairs the duty of care and ultimately causes an injury. Proving a factual cause is essential and key to your case. Medical Law Firm Coalfield TN
In addition to one of Keller & Keller's attorneys, we also assign a paralegal to your case to�perform day-to-day duties on your behalf, such as collecting certified copies of your medical bills; meeting state-mandated deadlines; monitoring your medical treatment; answering general questions; and�discuss with you the "do's" and "don't's" while your case is open. Mr. Sussman, upon receipt of the deficient subpoena, wrote to the Respondent. By letter dated March 12, 2012, Mr. Sussman stated that he had searched the file of Daniel L. Sussman and there are no records relevant to this matter. Mr. Sussman further informed the Respondent that he would not be appearing on the date of deposition. On April 22, 2012, Mr. Sussman was served with a subpoena compelling his appearance at deposition on May 3, 2012 and directing him to produce documents. On May 1, 2012, Mr. Sussman, through counsel, filed a Motion to Quash. In response, the Respondent filed a response to Mr. Sussman's motion, a motion to compel Mr. Sussman's appearance at deposition, and a reply to Mr. Sussman's response thereto in which he misrepresented, among other things, the date that Mr. Sussman was served. Prior to getting to this juncture I made many efforts to reach out, but the district failed to address the basic question of how can you fail to live up to a commitment you made. Mallen, Ronald E., and Jeffrey M. Smith. 1996. Legal Malpractice. 4th ed. St. Paul, Minn.: West. What are some common types of viable Brownsville medical malpractice cases?
1937 INEFFECTIVE ASSISTANCE OF COUNSEL BURKOFF, JOHN M. & HUDSON 08-13-1999 JAMAICA Now research, developed by scientists from in Providence, Rhode Island, shows that the climate turned colder earlier, perhaps several decades earlier than previously thought, setting off what could have been the beginning of the end of the Attorneys Coalfield Tennessee In addition to proving that the doctor has failed to meet the relevant standard of care, the claimant also has to establish that this failure either directly caused the injuries alleged or significantly contributed to them. This element of the claim is very often difficult to demonstrate; it may be easy to prove that the doctor did something wrong but this failure cannot be shown to have caused the patient's injuries. For example, a patient may be able to show that a psychiatrist's diagnosis was wrong, but it is much harder to show that this has contributed to his or her existing mental distress. In some cases there has been a clear breach of duty, but no damage has resulted at all. Again, in this case, no compensation would be payable. felony background check illinois free criminal hamilton county ohio arrest records mugshots best way to do a background check knowing United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT No. 12-6043 In re: LGI Energy Solutions, Inc.; LGI Data Solutions Company, LLC, Debtors. _ Appeal from the United States John R. Stoebner, Trustee, Bankruptcy Court for the District of Minnesota Plaintiff - Appellee v. San Diego Gas & Electric Company, Defendant - Appellant No. 12-6044 In re: LGI Energy Solutions, Inc.; LGI Data Solutions Company, LLC, Debtors. _ Appeal from the United States John R. Stoebner, Trustee, Bankruptcy Court for the District of Minnesota Plaintiff - Appellant v. Southern California Edison Company, Defendant - Appellee Submitted: October 23, 2012 Filed: November 14, 2012 FEDERMAN, VENTERS and SALADINO, Bankruptcy Judges VENTERS, Bankruptcy Judge. In these consolidated appeals, Defendants San Diego Gas & Electric Company (SDG&E) and Southern California Edison Company (SCE) appeal the bankruptcy court's judgments against them under 11 U.S.C. � 547(b) for 1 payments they received from the Debtors in the 90 days prior to the bankruptcy petition date. After giving credit for certain new value transfers, the bankruptcy court entered judgment against SCE for $131,267.63 and against SDG&E for $31,242.63. The Defendants assign error to three aspects of the bankruptcy court's ruling. They argue: 1) that the transfers at issue weren't preferential because the Defendants weren't creditors of the Debtors, as required by � 547(b)(1); 2) that the transfers were not on account of antecedent debts, as required by � 547(b)(2); and 3) that the bankruptcy court erred in limiting the Defendants' new value credits to 1 Because the two Debtor's estates have been consolidated, for convenience all references herein will be to the Debtors, although a particular fact might pertain to a single Debtor. 2 the value of the utility services they provided to the Debtors' customers in the preference period. For the reasons stated below, we affirm the bankruptcy court's decision with regard to its determination that the payments the Defendants received from the Debtors are avoidable under 11 U.S.C. � 547(b), but we reverse on the bankruptcy court's calculation of the Defendants' new value credits. JURISDICTION The bankruptcy court's judgment is a final order over which we have jurisdiction under 28 U.S.C. �158(b). BACKGROUND The facts are undisputed. On February 6, 2009, separate involuntary Chapter 7 bankruptcy petitions were filed against the Debtors. An Order for Relief was entered in each case on March 3, 2009, and the Debtors' bankruptcy estates were substantively consolidated on February 2, 2011. The Debtors' business was to provide utility-management and bill-payment services to restaurants and other businesses. As originally conceived, the Debtors' business worked in the following manner: The Debtors would receive invoices from a utility provider on behalf of a customer and then periodically report to the customer regarding those invoices. The customer then would transfer funds to the Debtors in an amount that corresponded to the amount of the invoice report and, after receiving those funds from the customer, the Debtors would send the utility provider a check drawn on the Debtors' bank account. All of the transfers at issue in this appeal relate to two of the Debtors' and Defendants' mutual customers: Buffets, Inc. (and related entities) and Wendy's 3 2 International, Inc. The Debtors provided bill-payment services to Buffets pursuant to an Energy Services Agreement dated January 5, 2007. The Debtors and Wendy's were parties to an Energy Services Agreement dated May 1, 2007. In the 90 days prior to the petition date of February 6, 2009, the Debtors made the following 24 transfers to Defendant SCE totaling $183,512.74: Check No. Check Amt. Check Date Rcvd. by SCE Clear Date 6077932 $4,178.52 10/21/08 11/12/08 11/14/2008 6077954 $4,224.86 10/21/08 11/12/08 11/14/2008 6076652 $5,943.93 10/17/08 11/14/08 11/18/2008 6076653 $8,125.06 10/17/08 11/14/08 11/17/2008 6076654 $9,620.77 10/17/08 11/14/08 11/17/2008 6076656 $9,996.85 10/17/08 11/14/08 11/17/2008 6078508 $7,948.76 10/23/08 11/12/08 11/14/2008 6078516 $8,156.87 10/23/08 11/12/08 11/14/2008 6078532 $8,188.20 10/23/08 11/19/08 11/21/2008 6078537 $7,827.17 10/23/08 11/18/08 11/20/2008 6078554 $7,435.41 10/23/08 11/18/08 11/20/2008 6078566 $7,804.13 10/23/08 11/18/08 11/20/2008 6078617 $7,678.34 10/23/08 11/13/08 11/17/2008 6079360 $7,371.65 10/27/08 11/13/08 11/17/2008 6079362 $10,844.50 10/27/08 11/13/08 11/17/2008 6079363 $9,514.28 10/27/08 11/13/08 11/17/2008 6079379 $7,860.50 10/27/08 11/17/08 11/19/2008 6079380 $6,322.93 10/27/08 11/17/08 11/19/2008 6079381 $6,628.53 10/27/08 11/17/08 11/19/2008 6079382 $7,970.53 10/27/08 11/17/08 11/19/2008 6079943 $8,460.80 10/28/08 11/12/08 11/14/2008 6080543 $6,881.98 10/29/08 11/17/08 11/19/2008 6080554 $7,461.95 10/29/08 11/25/08 11/28/2008 6080946 $7,066.22 10/30/08 11/20/08 11/24/2008 2 Only SCE provided utility service to Wendy's. 4 All 24 of the transfers were made by checks drawn on a checking account at U.S. Bank in the name of debtor LGI Energy Solutions, Inc., account no. xxxx- 3321. The first two checks, nos. 6077932 and 607954, totaling $8,403.38, related to Wendy's; the other 22 checks related to Buffets. In the 90 days prior to the petition date of February 6, 2009, the Debtors made eight transfers to Defendant SDG&E totaling $75,053.85. All eight of the transfers were made by checks drawn upon account no. 3321 and related to utility services provided to Buffets. Check No. Check Amt. Check Date Rcvd by SDG&E Clear Date 6075058 $5,773.59 10/13/08 11/12/08 11/14/08 6078518 $10,402.58 10/23/08 11/12/08 11/17/08 6078952 $9,093.92 10/24/08 11/18/08 11/20/08 6079349 $10,468.59 10/27/08 11/10/08 11/12/08 6079949 $8,514.01 10/28/08 11/20/08 11/24/08 6080548 $11,097.37 10/29/08 11/17/08 11/19/08 6081120 $10,062.69 10/31/08 11/25/08 11/26/08 6081126 $9,641.10 10/31/08 11/26/08 11/28/08 The 3321 account was a basic, unrestricted business checking account. Both the monthly statements for the 3321 account and the checks drawn on the 3321 account indicate that LGI Energy Solutions, Inc. was the sole holder of the account. Wendy's and Buffets last made deposits into the 3321 account on November 3, 2008, and November 4, 2008, respectively. Thereafter, Wendy's and Buffets made their payments to the debtors via other accounts owned by the Debtors at M & I Marshall & Ilsley Bank. Between November 3, 2008, when Wendy's made its last deposit into the 3321 account, and November 28, 2008, when the last of the 24 checks was debited against the 3321 account, the balance of the 3321 account was overdrawn or drawn to a nominal amount every business day. 5 On and after November 10, 2008, through the petition date, SCE sent 32 Wendy's invoices to the Debtors, which they then reported to Wendy's. Wendy's remitted payment for these invoices, but the Debtors never paid the related invoices of SCE. The Debtors received a total of $41,426.39 pursuant to these invoices. On and after November 10, 2008, through the petition date, Defendant SCE sent 32 Buffets invoices to the Debtors, which they then reported to Buffets. Buffets remitted payment to the Debtors for these invoices, but the Debtors never forwarded those payments on to SCE. The Debtors received a total of $157,886.99 pursuant to these invoices. On and after November 10, 2008, through the petition date, Defendant SDG&E sent 21 Buffets invoices to the Debtors, which they then reported to Buffets. Buffets remitted payment for these invoices, but the Debtors never forwarded those payments on to SDG&E. The Debtors received a total of $97,475.50 pursuant to these invoices. The bankruptcy court held a hearing on the Trustee's preference claims 3 (Count I) against Defendants on June 11, 2012, although the court declined to hear oral argument; it took the case on written submissions instead and entered judgments later that day - against SCE for $131,267.63 and against SDG&E for $31,242.63. The Defendants timely appealed. 3 On May 3, 2012, the Defendants filed motions for summary judgment seeking the dismissal of all counts (I, II, and III) of the Amended Complaint(s). The Trustee voluntarily dismissed Counts II and III, and the bankruptcy court denied summary judgment on Count I. 6 STANDARD OF REVIEW We review the bankruptcy court's legal conclusions de novo and its findings 4 of fact under a clearly erroneous standard. A finding is clearly erroneous when there is evidence to support it but the court reviewing the entire evidence is left 5 with the definite and firm conviction that a mistake has been committed. Whether the Defendants were creditors of the Debtor and whether the transfers were made in payment of antecedent debts are factual questions which we review for clear error. The bankruptcy court's application of � 547(c)(4) is a mixed question of law and fact. DISCUSSION As summarized above, the Defendants appeal three aspects of the bankruptcy court's ruling. They argue: 1) that the Defendants weren't creditors of the Debtors, 2) that the transfers were not on account of antecedent debts, and 3) that the bankruptcy court miscalculated the value of the Defendants' new value credits. Each argument is addressed in turn. A. The Defendants were creditors of the Debtors The Bankruptcy Code defines creditor as an entity that has a claim against a debtor that arose at the time of or before the order for relief concerning the debtor.6 A claim, in turn, is defined as a: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or; 4 See Drewes v. Vote (In re Vote), 276 F.3d 1024, 1026 (8th Cir. 2002). 5 See Lovett v. St. Johnsbury Trucking, 931 F.2d 494, 500 (8th Cir. 1991). 6 11 U.S.C. �101(10). 7 (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduce to judgment, fixed, contingent, matured, 7 unmatured, disputed, undisputed, secured, or unsecured. The bankruptcy court held that the Defendants were creditors of the Debtors on two grounds. It found that the Defendants were beneficiaries of a trust created between the Debtors and their customers and that the Defendants became creditors when the Debtors violated the trust by depleting the customer deposits without paying the Defendants' invoices. Alternatively, the bankruptcy court found that the Defendants were contractual third-party beneficiaries with direct claims against the Debtors. Neither of these findings is clearly erroneous. 1. Trust Beneficiary Claims Minnesota law requires three elements for the creation of a trust: (1) a 8 trustee; (2) a beneficiary; and (3) a definite trust res. No particular form and no specific words are necessary to create a trust. Even though the settlor's language be inept, clumsy, or even unsuitable, it is adequate if it reveals an intent to create the incidence of a trust relationship.9 The Debtors' agreements with Wendy's and Buffets both evince an intent to create a trust. Paragraph 3b of the agreement between the Debtors and Buffets provides that Buffets will provide money to the Debtors to be used for the specific purpose of paying the bills of utility companies and states that at no time shall LGI have a legal or equitable interest in the Customers funds and Customer grants no security interest to LGI.10 The Debtors' agreement with Wendy's provides that 7 11 U.S.C. � 101(5). 8 See e.g., In re Bush's Trust, 81 N.W.2d 615, 620 (Minn. 1957). 9 Id. at 619-20. 10 Technically, this language would not create a trust, inasmuch as the trustee of a trust holds legal title to the res while the beneficiaries hold an equitable interest in the res. See Farmers State Bank of Fosston v. SIG Ellingson & Co., 16 N.W. 2d 8 the funds tendered to the Debtors are to be used for the specific purpose of paying Wendy's utility bills. The Debtors' and Buffets' intent to create the incidence of a trust is further evidenced by the state-court complaint attached to Buffets' proof of claim, which repeatedly invokes trust language: ? As a result, the Debtor held Plaintiff Buffets' funds in trust. (� 3) ? Defendant M & I Marshall & Ilsley Bank knew the Debtor did not have any ownership interest in Plaintiff Buffets' funds and that the Debtor held Plaintiff Buffets' funds in trust subject to fiduciary duties. (� 4) ? The Contract provided that the Debtor would directly receive the utility invoices .to wire transfer or ACH transfer this gross amount to a bank account Debtor designated where Plaintiff Buffets' monies were held in trust for the payment of utility invoices (� 30) Having determined that a trust was created, the bankruptcy court held that the Debtors' dissipation of the trust res, i.e., the customer deposits, constituted a breach of the trust, giving the Defendants general, unsecured claims against the Debtors for the amounts the Debtors failed to forward to them pursuant to the Energy Services Agreements. The Sixth Circuit Court of Appeals, in First Federal of Michigan v. 11 Barrow, came to the same conclusion under analogous circumstances. In First Federal, a mortgage broker and servicer of mortgages received payments from borrowers and, despite being contractually bound to forward those payments 319, 322 (N.D. 1944). Nevertheless, this language could be interpreted as evidence of the parties' intent to preclude the Debtors from treating customer funds as their own money, which in turn could be interpreted as an intent to create a trust, albeit clumsily expressed. 11 878 F.2d 912, 917-918 (6th Cir. 1989). 9 (minus its fees) to the investors, taxing authorities, insurers, etc., it dissipated the payments almost immediately upon receipt and made select payments to certain creditors with later deposits. The Court of Appeals analyzed the situation as follows: Initially, the monthly payments collected in trust from the mortgagors, including the pro rata amounts for the superior mortgages, taxes, hazard insurance and investors which had originally been held in trust for the mortgagors and which were deposited into the Salem Central Account, subsequently lost their identity as a result of commingling with other unidentified debtor funds derived from numerous other miscellaneous sources and became the property of the debtors' estate. Additionally, for at least ninety days immediately preceding debtors' declaration of bankruptcy and probably for some time prior thereto when it became apparent that debtors' exploding expenses hopelessly exceeded income and the Salem Central Account consistently carried a five figure negative balance, and when monies from that account were disbursed to honor previously issued checks in satisfaction of pre-existing indebtedness, the mortgagors as well as the appellant taxing authorities and investors were stripped of their status as beneficiaries of any trust or constructive trust that may have existed while the mortgage payments were identifiable in segregated escrow accounts and they became general creditors of the debtors and the debtors' bankrupt estate because the debtors' conversion of the mortgage payments had occurred at the moment when the identifiable funds were deposited into Salem's negative balance Central Account from which transfers were made to satisfy debtors' pre-existing indebtedness to the mortgagors and appellants. Accordingly, the appellants' charge that the transfers here in controversy were not in payment of pre-existing indebtedness must fail and the repayments to 12 the appellants must be declared to be voidable preferences. 12 Id. (emphasis added). 10 Like the appellants in First Federal, the Defendants here became general, unsecured creditors of the Debtors at the moment the Debtors depleted the customer deposits, which the evidence shows happened on a daily basis and, most importantly, before the Debtors used those deposits for their intended purpose. In sum, consistent with the intent to create a trust, Wendy's and Buffets entrusted the Debtors with specific, identifiable property that they were to hold in trust for payment to the Defendants and other utility companies. The Debtors' failure to preserve trust property was a breach of trust which gave the Defendants unsecured claims against the Debtors. Thus, the bankruptcy court's holding that the Defendants were creditors of the Debtors for purposes of � 547(b)(1) is not clearly erroneous. 2. Third-Party Beneficiary Claims It is the prevailing rule in Minnesota and other jurisdictions in the United States that a third party may sue on a contract made for his direct benefit.13 If, by the terms of the contract, performance is directly rendered to a third party, he is intended by the promisee to be benefited. And where a promisor agrees to pay the debts of another - as was the case here - the intended third-party beneficiary 14 possesses the primary claim against the promisor for the debt. At oral argument, the Defendants conceded that SDG&E and SCE were third-party beneficiaries with regard to the transfers received on account of the utility services provided to Buffets. They continue to maintain, however, that the language in the Energy Services Agreement with Wendy's precludes a claim by 13 Buchman Plumbing Co., Inc. v. Regents of the Univ. of Minnesota, 215 N.W.2d 479, 483 (Minn. 1974). 14 In re Maurer, 256 B.R. 495, 502 (B.A.P. 8th Cir. 2000). 11 15 the Defendants as third-party beneficiaries. Specifically, they point to the provision in the Agreement stating that LGI shall not be required to incur any liability in connection therewith. The bankruptcy court rejected this interpretation of the Energy Services Agreement. That finding is not clearly erroneous. First, the context of the quoted passage suggests that it was intended only to reinforce the parties' agreement that LGI had no duty to extend credit, i.e., pay a utility bill for which Wendy's had not yet forwarded payment. To wit, page 7 of the agreement provides in larger part: LGI shall then be obligated to pay each utility invoice within two business days of receipt of Wendy's ACH transfer. LGI shall in no event be required to advance any of its funds or to utilize LGI's credit in connection with or on behalf of Wendy's, nor shall LGI be required to incur any liability in connection therewith. Wendy's shall indemnify and hold harmless LGI from and against any and all claims, liabilities, costs and expenses relating to utility invoices that have 16 been processed in accordance with this Agreement. Second, the italicized portion can be interpreted as establishing LGI's receipt of funds from Wendy's as a condition precedent to LGI's obligation to pay utility providers. Finally, the Energy Services Agreement's statement that LGI was not required to incur any liability does nothing to actually prevent LGI from incurring 15 Minnesota follows the Restatement (Second) of Contracts, see Cretex Companies, Inc. v. Constr. Leaders, Inc., 342 N.W.2d 135, 139 (Minn. 1984), which permits a promisor and promise to contractually restrict (or eliminate) the rights of a third-party beneficiary. (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties. Restatement (Second) of Contracts � 302. 16 Emphasis added. 12 a debt to a utility company as a result of its breach of the agreement by, for example, using the funds it received from Wendy's for another purpose. This interpretation would be more consistent with the subsequent sentence which specifically contemplates potential claims against LGI by the utilities. For these reasons, we hold that the bankruptcy court's finding that the Defendants were creditors of the Debtors as a consequence of their status as third- party beneficiaries of the Energy Services Agreements is not clearly erroneous. B. The preferential transfers to the Defendants were made in payment of antecedent debts as required by 11 U.S.C. � 547(b)(2) The Defendants argue that the transfers at issue were not preferences because they weren't made in payment of antecedent debts. According to the Defendants, the Debtors would not actually owe a debt to the Defendants until the Debtors breached their agreements with Buffets and Wendy's by failing to make timely payments to the Defendants. Essentially, they argue that a debt created by contract does not arise until the promisor repudiates or breaches the contract. They 17 point to the Eighth Circuit case, In re Bridge Information System, Inc., to support their argument. The Defendants' argument on this point is without merit and their reliance on In re Bridge Information Systems, Inc. is misplaced. The Bankruptcy Code does not define when the debtor incurs a debt, but it does define a debt as a liability on a claim.18 Thus, the concept of a debt and a 19 claim are coextensive under the Code, and a debtor incurs a debt to a creditor for purposes of � 547(b)(2) as soon as the creditor would have had a claim against the 17 327 B.R. 382 (B.A.P. 8th Cir. 2005), aff'd 474 F.3d 1063 (8th Cir. 2007) 18 11 U.S.C. � 101(12). 19 See In re Energy Co-op. Inc., 832 F.2d 997, 1001 (7th Cir. 1987) (By defining a debt as a �liability on a claim,' Congress gave debt the same broad meaning it gave claim.). 13 debtor's estate. The Defendants here had a claim against the Debtors when the Debtors received funds from Buffets and Wendy's. The rights and duties of a third-party beneficiary contract depend upon, and are measured by, the terms of the contract. Under the Buffets Energy Services Agreement, the Debtors were obligated to the timely payment of invoices upon receipt of the customer funds. Under the Agreement with Wendy's, the Debtors were required to pay each utility invoice within two business days of receipt of Wendy's ACH transfer. The fact that the Debtors had a time within which to perform their obligations before they would be in breach of the contract does not mean that the obligation did not arise until those deadlines were upon them or past, just as the prepayment of a loan before an installment due date or the maturity date constitutes 20 payment on an antecedent debt. The key to determining whether a transfer for or on account of a debt owed by a debtor is whether a creditor would be able to assert a claim against the estate absent payment. Here, the Defendants (or the customers, as the primary promisees) had (and, indeed, did file) claims for all the funds paid by a customer that were not paid to the Defendants for utility services when the involuntary bankruptcy petitions were filed against the Debtors. Furthermore, Bridge Information Systems, Inc., does not stand for the proposition the Defendants attribute to it, i.e., that a contractual duty to pay does not arise until a party is in breach of that duty. Rather, the question in that case was whether a payment pursuant to a settlement agreement was in payment of the lessor's alleged prior breach of a lease or a contemporaneous buy out of the 21 lessee's renewal options. If the payment made by the debtor-lessor was in satisfaction of damages caused by its purported prior breach - as the bankruptcy 20 See, e.g., In re Bennett Funding Group, Inc., 220 B.R. 739 (B.A.P. 2nd Cir. 1998). 21 In re Bridge Information Systems, Inc., 327 B.R. at 387-89. 14 court held - then the payment would have been in satisfaction of an antecedent debt and, therefore, avoidable as a preference. However, if the transfer was payment for the defendant-lessee's option rights - as the Bankruptcy Appellate Panel held - then the transfer was not in payment of an antecedent debt and not a preference. Quite simply, the holding of Bridge Information Systems, Inc., is inapposite here. For these reasons, we conclude that the bankruptcy court did not err in its determination that the transfers at issue here were made in payment of antecedent debts for purposes of 11 U.S.C. � 547(b)(2). C. The Defendants' new value credit was improperly determined Section 547(c)(4) of the Bankruptcy Code provides: The trustee may not avoid under this section a transfer - (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor � (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor. New value is defined as money or money's worth in goods, services, or new credit including proceeds of such property. 11 U.S.C.� 547(a)(2). The bankruptcy court held that the plain language of � 547(c)(4) - specifically, its reference to such creditor - requires that new value be supplied by the creditor that received the preferential transfer. Accordingly, it limited the 15 Defendants' new value credit to the value of the utility services they provided to Buffets and Wendy's during the preference period. The Defendants contend that under the Eighth Circuit Court of Appeals case, Jones Truck Lines, Inc. v. Central States, Southeast and Southwest Areas Pension 22 Fund (In re Jones Truck Lines, Inc.), the Defendants' new value credit should not be limited to the value of the utility services provided to the Wendy's and Buffets customers during the preference period. Rather, they argue, they are entitled to a credit for all of the payments Wendy's and Buffets made to the Debtors subsequent to each transfer, regardless of when the utility services were provided. We concur with the Defendants' interpretation of the holding in Jones Truck Lines. In Jones Truck Lines, a Chapter 11 debtor-employer sued to recover, as preferential transfers, payments to a Health and Welfare Fund and to a Pension Fund 23made on behalf of its employees. The bankruptcy court and district court held that under � 547(c)(4), the defendant-Funds could not offset their preference liability with the value provided by the debtor's employees (in the form of continued services rendered to the debtor); rather, the Funds themselves had to 24 provide new value to the debtor. In reversing the lower courts' decisions, the Court of Appeals examined the parties' tripartite relationship and held that the employee services provided to the debtor during the preference period qualified as new value which could be applied as an offset against the Funds' preference 25 liability. Notably, the Court of Appeals found that the Funds were creditors of the debtor in their own right but did not limit the Funds' new value credit to any value they provided to the current employees. And, as a practical matter, it is unlikely that the current employees received any contemporaneous benefit from the Pension 22 130 F.3d 323 (8th Cir. 1997). 23 Id. at 325-36. 24 Id; In re Jones Truck Lines, Inc., 196 B.R. 483, 492 (Bankr. W.D. Ark. 1995.) 25 In re Jones Truck Lines, Inc., 130 F.3d at 328-29. 16 Fund. Hence, the bankruptcy court's calculation of new value in this case is not consistent with the Eighth Circuit's binding holding in Jones Truck Lines. Arguably, because the Defendants were found to be creditors in their own right, as opposed to just transferees of payments that benefitted a creditor (Wendy's or Buffets), the holding of Jones Truck Lines would appear to be contrary to the plain terms of � 547(c)(4), which requires such creditor, i.e., the creditor that received the transfer (or the benefit of the transfer) to provide the new value. However, the holding in Jones Truck Lines can be harmonized with the statute by interpreting it as a recognition that in tripartite relationships where the transfer to a third party benefits the primary creditor, new value can come from that creditor, even if the third party is a creditor in its own right. And that is exactly the nature of the tripartite relationship here. In fact, as trust beneficiaries and third- party beneficiaries, the Defendants are creditors of the Debtors precisely because the payments made to them were intended to benefit the creditor(s) that provided the new value (i.e., the Debtors' customers, Wendy's and Buffets). Giving the Defendants credit for all of the payments Wendy's and Buffets made to the Debtors on account of utility services provided by the Defendants, SDG&E's liability is reduced to zero and SCE's liability is reduced to $25,625.75. The charts below show the calculation of the Defendants' new value credits based 26 on the figures contained in the record. SCE - WENDY'S NEW VALUE ANALYSIS Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/14/2008 $4,178.52 $4,178.52 11/14/2008 $4,224.86 $8,403.38 11/20/2008 $40.00 $8,363.38 26 All of these figures are contained in the Stipulations of Fact filed in the underlying bankruptcy court cases, Stoebner v. SCE, 11-4066 (Doc. 39) and Stoebner v. SDG&E, 11-4065 (Doc. 38). 17 Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/20/2008 $2,447.73 $5,915.65 11/20/2008 $40.00 $5,875.65 11/20/2008 $2,647.66 $3,227.99 11/21/2008 $40.00 $3,187.99 11/21/2008 $2,604.31 $583.68 11/25/2008 $40.00 $543.68 11/25/2008 $2,848.46 ($2,304.78) Preference Liability Eliminated SCE - BUFFETS NEW VALUE ANALYSIS Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/14/2008 $4,178.52 $4,178.52 11/14/2008 $4,224.86 $8,403.38 11/14/2008 $7,948.76 $16,352.14 11/14/2008 $8,156.87 $24,509.01 11/14/2008 $8,460.80 $32,969.81 11/14/2008 $7,003.12 $25,966.69 11/14/2008 $138.53 $25,828.16 11/17/2008 $8,125.06 $33,953.22 11/17/2008 $9,620.77 $43,573.99 11/17/2008 $9,996.85 $53,570.84 11/17/2008 $7,678.34 $61,249.18 11/17/2008 $7,371.65 $68,620.83 11/17/2008 $10,844.50 $79,465.33 11/17/2008 $9,514.28 $88,979.61 11/18/2008 $5,943.93 $94,923.54 11/19/2008 $6,114.90 $88,808.64 11/19/2008 $864.00 $87,944.64 11/19/2008 $960.11 $86,984.53 11/19/2008 $4,832.03 $82,152.50 11/19/2008 $4,570.59 $77,581.91 11/19/2008 $7,033.00 $70,548.91 11/19/2008 $6,168.70 $64,380.21 11/19/2008 $5,294.10 $59,086.11 11/19/2008 $5,253.98 $53,832.13 11/19/2008 $7,860.50 $61,692.63 11/19/2008 $6,322.93 $68,015.56 11/19/2008 $6,628.53 $74,644.09 11/19/2008 $7,970.53 $82,614.62 11/19/2008 $6,881.98 $89,496.60 18 Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/20/2008 $21.30 $89,475.30 11/20/2008 $5,283.78 $84,191.52 11/20/2008 $5,410.79 $78,780.73 11/20/2008 $5,728.54 $73,052.19 11/20/2008 $5,280.57 $67,771.62 11/20/2008 $6,118.07 $61,653.55 11/20/2008 $7,827.17 $69,480.72 11/20/2008 $7,435.41 $76,916.13 11/20/2008 $7,804.13 $84,720.26 11/21/2008 $8,188.20 $92,908.46 11/24/2008 $7,066.22 $99,974.68 11/28/2008 $5,470.19 $94,504.49 11/28/2008 $5,058.94 $89,445.55 11/28/2008 $7,803.90 $81,641.65 11/28/2008 $6,438.30 $75,203.35 11/28/2008 $4,826.31 $70,377.04 11/28/2008 $7,461.95 $77,838.99 12/1/2008 $71.29 $77,767.70 12/1/2008 $5,256.98 $72,510.72 12/1/2008 $6,067.03 $66,443.69 12/1/2008 $4,771.92 $61,671.77 12/1/2008 $6,218.99 $55,452.78 12/1/2008 $5,148.72 $50,304.06 12/9/2008 $6,107.77 $44,196.29 12/9/2008 $5,577.87 $38,618.42 12/9/2008 $6,892.98 $31,725.44 12/9/2008 $6,099.69 $25,625.75 Preference Liability SDG&E - BUFFETS NEW VALUE ANALYSIS Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/12/2008 $10,468.59 $10,468.59 11/13/2008 $3,126.29 $7,342.30 11/13/2008 $1,747.28 $5,595.02 11/13/2008 $5,255.58 $339.44 11/13/2008 $7,208.34 ($6,868.90) New Value credit does not carry 11/13/2008 $2,167.03 $0.00 forward. 11/14/2008 $5,773.59 $5,773.59 19 Transfer Preferential Transfer to Net Comment Date Transfer Debtor Preference 11/17/2008 $10,402.58 $16,176.17 11/19/2008 $11,097.37 $27,273.54 11/20/2008 $7,487.70 $19,785.84 11/20/2008 $2,328.80 $17,457.04 11/20/2008 $9,093.92 $26,550.96 11/24/2008 $8,514.01 $35,064.97 11/25/2008 $8,195.65 $26,869.32 11/25/2008 $1,855.14 $25,014.18 11/26/2008 $10,062.69 $35,076.87 11/28/2008 $8,254.95 $26,821.92 11/28/2008 $1,955.21 $24,866.71 11/28/2008 $9,641.10 $34,507.81 12/1/2008 $1,667.01 $32,840.80 12/1/2008 $8,236.52 $24,604.28 12/1/2008 $7,942.75 $16,661.53 12/1/2008 $2,055.03 $14,606.50 12/5/2008 $7,509.62 $7,096.88 12/5/2008 $1,788.17 $5,308.71 12/5/2008 $1,609.64 $3,699.07 12/5/2008 $7,454.17 ($3,755.10) Preference Liability 12/5/2008 $7,880.45 ($11,635.55) Extinguished 12/5/2008 $1,750.17 ($13,385.72) CONCLUSION For the foregoing reasons, the portion of the bankruptcy court's judgment determining that the Defendants received preferential transfers is affirmed. The court's calculation of the Defendants' new value credit, however, is reversed. SCE is entitled to a new value credit for all but $25,625.75 of the transfers it received and SDG&E is entitled to a new value credit to the full extent of the transfers it received. _ 20 Early adoption of a new medical device by a physician carries with it some degree of malpractice liability risk. The legal standard for malpractice varies from place to place, but generally requires an evaluation of the physician's conduct either against that of a hypothetical "reasonable physician," or else against professional custom. Where the use of a new device involves a significant departure from traditional modalities of care, and a bad clinical result follows, questions may arise about whether the legal standard for malpractice has been violated. We suggest that a liberal interpretation of the malpractice standard of care is appropriate, and even necessary to avoid the potential for perverse disincentives to technical innovation in medicine. PMID:19715141 Sara's parents threatened to sue the local sponsors and seek an injunction to stop the state spelling bee next month in Las Vegas. After meetings and telephone calls, the parties have agreed to a one-time settlement with the first, second and third place winners from that county moving on to the state spelling bee. Located in New Brunswick� Robert Wood Johnson University Hospital is one of only three New Jersey State-Designated Level I Trauma Centers and the primary trauma center for the central region of the state. The facility is also�a teaching hospital for Rutgers Robert Wood Johnson Medical School. In 2011� Robert Wood Johnson had more than 230�000 outpatient visits including nearly 90�000 patients in their emergency room. When hospitals see a high volume of patients coming in each day� there is an increased risk that someone could�become the victim of medical error. I would not have written this if I did not think things were terribly wrong with that staff.
Bio-medical waste disposal, pickup, transport in Alachua, USA. Have you been seriously injured in an accident or incident due to the negligence of others? Are you facing overwhelming medical bills or lost time from work due to your injuries? In Minnesota , heavy snow collapsed the roof of an NFL stadium - luckily it was empty. KRS 413.140(2) is clear that it is the plaintiff's actual or constructive discovery of his injury that starts the running of the one-year limitations period for medical malpractice and negligence actions. Our Supreme Court has explained that under the discovery rule, the statute of limitations will not commence to run until the plaintiff knows there is a basis for a claim. Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky. 2000). The knowledge necessary to trigger the statute is two-pronged; one must know: (1) he has been wronged; and, (2) by whom the wrong has been committed. Id. When both knowledge requirements are satisfied, the plaintiff has been injured and the statute begins to run. If an accident or deliberate harmful behavior caused injury to you, or death to a loved one, it is time to take action and fight back. Your California Personal Injury Attorney knows all about Personal Injury legal options, and will help you can make informed decisions about pursuing fair compensation. Birth trauma injuries or death to either mother or child
Following a jury trial, Joseph Buchanan was convicted of four counts of receiving child pornography transported in interstate commerce by computer and one count of possession of child pornography. Buc. BBB has nothing to report concerning Rockafellow Law Firm's advertising at this time. to a limit established by the program's guidelines, and no more than the Fair Market Rent for the area. At the trial level, the court granted defendants' motions for summary judgment. The court explained that defendants' inspectors had possessed no duty to report any sprinkler system design flaws to the hotel owner because applicable State regulations did not necessitate any such reporting. The Appellate Division reversed, agreeing with plaintiffs' contention that defendants' compliance with regulatory requirements was not dispositive of the issue of negligence. The appellate panel explained that defendants owed plaintiffs a duty of reasonable care and that a jury should decide whether defendants had been obliged to exceed the dictates of the regulations in their exercise of reasonable care. We affirm the trial court's dismissal of Berrett's complaint.
Compensatory Damages: An award of monetary damages intended to compensate a plaintiff for economic and non-economic losses sustained as a result of another's negligence, breach of contract or misfeasance. � 2016. Law Offices of Magnuson Lowell P.S. All Rights Reserved. order requiring her to produce information pertaining to the relationship between her Shifting the Causation Burden of Proof in Legal Malpractice Actions Dodge your DWI charges with experienced Dallas DWI / DUI lawyers that are former Prosecutors. Focusing on all technical issues of DWI laws, our Attorneys provide the best possible solutions to avoid DUI convictions in Dallas, Texas. Medical Law Firm Coalfield 37719 However, in Johnson's case, it occurred as the result of one of the surgeon's utensils touching and breaking the wall of Johnson's colon, which led to trauma in both the colon and small intestine. Symptoms of SBS include stomach pains, diarrhea, weight loss, and fatigue. Plastic surgery - serious infection, disfigurement or nerve damage
Justia Opinion Summary: Real-party-in-interest Newport-Mesa Unified School District denied petitioner John Caldecott's request to produce certain documents made pursuant to the California Public Records Act. Caldecott worked for defendant as Ex. Defendant: Santa Rosa Memorial Hospital, St. Joseph Health Pia Anderson Dorius Reynard & Moss is a litigation and transactional law firm with an array of talented lawyers. Joseph Pia (founding partner) has an expertise in intellectual property, entertainment law, film law, television law, music law, and litigation in all corporate and business. If you do not have this key, please contact your Sponsor. Local Rules of Court San Francisco Superior Court Index Index - 5 Rule Small Claims 18 Standing Order, Juvenile Division 13.5 Status Conference Calendar, Family Law 11.12 Stipulation to Commissioners 3.6; 10.0D emporary Judge Procedures 6.7 Traffic Appeals 17.3 T Traffic Bail Schedule 17.4 Traffic Proceedings 17 Traffic School 17.2 Trial Calendar, Civil 6.0 Trial Calendar, Criminal 16.14 Trial Court Records, Official Records, Maintenance of, Document Retrieval Fee 2.2A; 2.2B Trial Orders, Dependency Rule 12, Appendix A Trial Rules, Family Law 11.14 Trial Setting, Family Law 11.11 Trial Time Limits 6.8 Trusts Funded by Court Order 6.10 nified Family Court 11.1 Unified Family Court, Child Custody Orders, Domestic Violence 19.2 U Unified Family Court Services 11.16 Unlawful Detainer Actions, Setting For Trial 6.5 acation Day, Judges� 2.8 Vexatious Litigant, Application by, to File Complaint 2.7 V Voluntary Arbitration 4.4 Voluntary Civil Mediation 4.2 Volunteer Mediation Program, Probate 14.17 ills 14.36-14.40 Writs and Receivers; Matters 8; 9.0B; 16.11-16.12 W For civil and probate fee schedules: /site/courts_page.asp?id=3802 Revised: July 1, 2010 1.2 Definitions. �BASF�?� means the Bar Association of San Francisco. 2.8 Judges� Vacation Day. Vacations. Judges� vacation days and use are authorized consistent with CRC §10.603(c)(2). A judge�s vacation day is defined as follows: A. Appointment of Guardian Ad Litem. B. Hearings to Approve Compromise 1. Petitions to compromise are heard in Department 218 on Tuesdays and Thursdays at 9:00 a.m. Counsel must call Department 218 at (415) 551-3713 after 2:00 p.m. to schedule a hearing date and to be placed on calendar. Counsel must lodge an endorsed copy of the petition and a proposed order with Department 218 at least two (2) Court days prior to the hearing. 11.6 Rules Specific to Child Custody and Visitation Matters. F. Child Abduction Recovery Unit of the District Attorney�s Office 11.8 Other Procedures. 11.12 Status Conference Calendar. 11.13 Mandatory Settlement Conference. 11.14 Trial Rules. This SFLR 11.14 does not apply in Department 416. 11.15 Default and Uncontested Calendar. 11.16 FCS. FCS is a division of the Unified Family Court (�UFC�?�). It provides services to both the Family Law and Juvenile Dependency divisions of the UFC. FCS provides confidential mediation services for families involved with the juvenile dependency division. See SFLR 12.47. FCS provides both confidential and non-confidential mediation and support services to families who bring contested child custody or visitation issues before the Family Law division. A. Confidential Mediation Services. Mediation sessions are confidential unless specifically indicated otherwise. See SFLR 11.7(C)(2) for limitations of confidentiality and other general information on confidential mediation services. B. Non-Confidential Mediation Services. FCS may provide non-confidential mediation services upon Court order. These services may include, but are not limited to: fact-finding; interviews of collateral sources; document requests and reviews; service coordination; and, service referral. All non-confidential services offered through FCS staff will be provided by a mediator other than the mediator who provided confidential mediation unless the parties specifically waive confidentiality. 1. Reports to the Court. Unless otherwise ordered by the Court, all information provided by the non-confidential mediator to the Court must be in writing with copies provided to the parties and/or their attorneys of record prior to the hearing. All information provided by the non-confidential mediator will be considered by the Court pursuant to Family Code §3111(a.) 2. Testimony of Non-Confidential Mediator. The non-confidential mediator will be subject to cross examination only at trial. Written notice of intent to cross-examine a mediator must be given to the mediator ten calendar days prior to trial. 3. No Peremptory Challenge of Non-Confidential Mediator. No peremptory challenge of a non-confidential mediator will be allowed. W&I = Welfare & Institutions Code E. Attorney Responsibilities. G. Confidentiality of Mediation Sessions. I. Reporting the Results of the Mediation to the Court. Appendix B Long distance telephone Agent B�s Commission Example 1 Example 2 A. Court Sessions. The time for conducting sessions of the criminal Determining Financial Eligibility/Standard Test Written Financial Statement The defendant must complete a financial statement if (1) the Public Defender has declared a conflict and/or the applicant is seeking a Harris appointment or (2) counsel for the defendant is retained by a third party, but appointment of ancillary services is requested. MISDEMEANOR CASES FELONY CASES JUVENILE CASES Case proceeds through trial APPENDIX A When a school fails to protect its students from foreseeable harm, the law says it acted negligently. A school's negligence makes it responsible, or liable , for the injured student's damages. Damages include the student's medical, chiropractic and therapy bills, out-of-pocket expenses for medications, crutches, slings, hospital parking lot fees, etc., lost wages (if the student had a part-time job), and for the student's (not the parents') pain and suffering. Claimant presented the medical reports and testimony of two doctors who both diagnosed claimant as suffering from respiratory disease related to claimant's work-related exposure to cardboard dust and fumes from shrink wrapping polyethylene. Further, an industrial hygienist testified that the shrink-wrapping process used by the employer would emit respiratory irritants, and claimant's supervisor testified that claimant worked around the shrink wrapping machine on a daily basis and there was cardboard dust in his work area.