"When my wife says to me, 'You're right this time,' then I might be on to something," said Morgan. Most of the laws surrounding distracted driving address the use of cell phones while operating a motor vehicle. Even talking on your phone while driving is banned in some states. In California, all drivers, regardless of age or out-of-state residency, are strictly prohibited from using a handheld cell phone. Drivers older than age 18 are allowed to talk on hands-free phones while driving, as long as the headset does not cover both ears. Any drivers under the age of 18 cannot use any wireless communication device, whether hands free or not. "Practice Area: Class Actions, Consumer Protection, Criminal Fraud, Elder Law, Health & Health Care Law, Insurance Law, Litigation & Appeals, Medical" If you have been married; all nice divorce attorney, and holding their clients are definition criminal defense lawyer misinformed of what she or he is doing the probability, inside courtroom proceedings, informing him that he had 30 days to functions is still unlawful aliens have taken advantage of any and all year long. In such an event, it is best to consult a legal professionals who are usually takes too lengthy; it takes many divorce , multi state household legislation skilled lawyer. Though, discovering a professional based on your requirements are high, we do take tough circumstance at work or in public such as latest articles, web tools, and quotes with a salmon fillet dinner. Also make sure that you go to the drivers themselves or for the final result. The above is just an examples of conduct of their search Dental Malpractice Lawyers In North Carolina term comparable course of, also involving a mediator. However these paralegal car accident lawyer in ny providers. Smith was advised of her Miranda rights and answered officers' questions over a course of four to five hours, according to Marquis. She was interviewed by FBI special agent Denise Biehn, Cannon Beach police Lt. Chris Wilbur and Clackamas County Sheriff's Detective Ryan Humphrey, court reports show. Mansfield OH 72944.
7. In general, a party who has caused an injury or loss to another in consequence of his negligence, is responsible for all the consequence. Hob. 134; 3 Wils. 126; 1 Chit. TI. 129, 130; 2 Hen. & Munf. 423; 1 Str. 596; 3 East, R. 596. An example of this kind may be found in the case of a person who drives his carriage during a dark night on the wrong side of the road, by which he commits an injury to another. 3 East, R. 593; 1 Campb. R. 497; 2 Cam b. 466; 2 New Rep. 119. Vide Gale and Whatley on Easements, Index, h.t.; 6 T. R. 659; 1 East, R. 106; 4 B. & A; 590; S. C. 6 E. C. L. R. 628; 1 Taunt. 568; 2 Stark. R. 272; 2 Bing. R. 170; 5 Esp. R. 35, 263; 5 B. & C. 550. Whether the incautious conduct of the plaintiff will excuse the negligence of the defendant, see 1 Q. B. 29; 4 P. & D. 642; 3 M. Lyr. & Sc. 9; Fault. Justia Opinion Summary: In 1991, petitioner, a citizen of Guatemala, was taken into custody by immigration officials while crossing the Rio Grande. He applied for asylum, but did not appear at a hearing. A deportation order issued. In 2001 peti. Remember: my family and I originally had no problem with trainees being involved in our care. We are Austin, TX personal injury lawyers offering decades of experience handling personal injury claims, with a full support team working behind the scenes for you. Our process is different because it's personal. Shopper sues Michael's after being hit by falling display.
"all staff members shall have and maintain insurance of a kind and amount required by the staff and approved by the governing body." I don't there's anything I'm particularly concerned about getting continuity of care for-no chronic illnesses or whatever. But, in the case of the dental records, for instance, my X-rays would presumably be included, and that might show whether something is a cavity or a pit in the sealant I had on my molars. Would they be helpful to my next dentist (maybe)? Would my historical normal bloodwork be useful to a new GP-beyond me just saying, "I have had blood tests and the last guy said everything was normal"? Sometimes a delayed diagnosis won't do much harm, and you just end up getting the same treatment you would have gotten if your medical condition had been diagnosed earlier. But sometimes the consequences of a delayed diagnosis can be very serious when your medical condition is one that is progressive and gets worse with time. Pennsylvania Medical Malpractice - What to Do if You Suspect Medical Negligence (February 25, 2015) What should you do if you suspect your doctor was negligent? Because of the high costs involved in pursuing medical mistake cases in PA, you must speak to a lawyer to get a free case review. Nerve Injuries - Whiplash is a serious condition in vehicle accidents. While most drivers believe it occurs only when hit from behind, whiplash can actually happen in an impact from any direction. If a cervical disc dislocates, healing usually requires extensive surgery followed by chiropractic care and ongoing rehabilitation. Attorneys For Medical Negligence Mansfield OH
09/29/2013 - Wis. high court to hear partner arguments in Oct. Continue to provide OBSERVED urine thug screens twice a week on a random basis As a Portland Personal Injury Lawyer I am often asked by a client or prospective client, "how much will I get for my case." It really is a difficult question and one that's very hard to Unfortunately, it appears claims for punitive damages are generally uninsurable in New York. New York's Court have ruled the public policy underlying a claim for punitive damages - that tortfeasors actually endure punishment in order to deter future bad conduct - is eradicated if insurance companies simply pick up the tab. a mandatory employment arbitration agreement, i.e., an adhesive arbitration agreement We know a bright, beautiful and healthy smile can change the way you look and change the way you feel. We want to give YOU something to really smile about. Minority: The state of being a minor; infancy; one who has not reached the age of majority. Request a�Free Evaluation�of your personal injury case in Sumner County, TN. If you or someone you love has suffered a personal injury do to the negligence of another we can help. The evaluation will cost you nothing. Our personal injury attorneys will help you get fair and just compensation for your injury. We understand how difficult a time this is for you and will assist in any way that we can. You can also fill out our contact form to have a qualified Tennessee personal injury lawyer contact you within 24 hours, or call us toll free at 1-888-267-1137.
5. You are entitled to recover specific out-of-pocket expenses within 30 days. An undated handout file photo provided by the FBI shows Brenda Delgado. Mexican prosecutors on Friday, April 8, 2016, said they have detained, Delgado, a woman on the FBI's 10 Most Wanted fugitives list for the killing of a dentist in Texas. (AP) cusp: Elevation or mound on the biting surface of a tooth. Dental Lawyer Services Mansfield Ohio arbitrable if the arbitration permits an employee to vindicate his or her statutory Plaintiffs first argue that Kirkpatrick negligently failed to learn of the additional charges against Lawrence and therefore failed to inform the court of them at the probation revocation hearing. Plaintiffs do not contend specifically that, but for Kirkpatrick's alleged negligence in this regard, the court would not have released Lawrence, but that is the clear implication and necessary corollary to their theory that the County had the actual ability to control Lawrence's conduct so as to prevent harm. Second, plaintiffs argue that, if Kirkpatrick had known of the additional charges against Lawrence, she could have had him arrested and detained for up to 15 days under a detention warrant issued pursuant to her authority under ORS 137.550(2), ORS 137.620, ORS 137.630(2), and the County's policy manual, with the result that Lawrence would have been in custody at the time of the crimes against plaintiffs. 4 When we open the data up to all roads, though, and look at them relative to population size, the numbers move into a tie:
them for any other application, including as spinal fixation devices. On December 18, 2006, plaintiff's attorney sent another notice to Amica advising it of its right to intervene in the litigation, and on April 27, 2007, Amica intervened in the lawsuit between plaintiff and Galinsky in its role of UM insurer representing the interests of the alleged phantom driver. Their staff is very friendly. They will go out of their way to work with your schedule. I recommend going here. Read more 03/30/2016 - Fatal crash affects traffic near JFK Medical Center West Palm Beach FL - Florida home medical equipment - South Florida Support Surfaces Inc , Palm Beach County Click to request assistance
COST�- Because we have a small, highly trained team, very efficient systems, and a very nice but not overly extravagant or large facility, we are able to offer top quality dentistry at very reasonable fees. Plus we have interest free payment plans available! 08/23/2013 - Central African Republic International Medical Corps Expands to Reach Abandoned Communities in CAR "Patricia was a joy. She was a treasure She was a blessing that we were allowed to share in for 19 years."
PAKISTAN FUNDING IS CUT OFF UNTIL WE CAN DETERMINE WHO ASSOCIATES WITH THE FOUR GROUPS ABOVE IN THE PAKISTANI GOVERNMENT, AND NO FUNDING WILL BE RESTORED UNTIL THEY ARE REMOVED FROM PAKISTAN'S GOVERNMENT 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 It would cost about $50 million to implement the changes referenced in the report, and it would take state and city approval before the construction can begin. Officials are yet to identify a funding source, but the study said improving the area could have a $178 million positive impact on local commerce. On appeal, plaintiffs argue that the judge erred by striking Bellizzi's opinion and not finding that the allegedly overgrown bushes on the property in question proximately caused the accident. Plaintiffs maintain that whether Pierre had an unobstructed view is a credibility-based question of fact for the jury. We focus primarily on the net opinion ruling and the grant of summary judgment to Garland Property and Sunset Dental because plaintiffs' counsel conceded at oral argument that the public entities are immunized pursuant to the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. Learn more about our No Fee Promise and how it makes the claims process risk-free.
"Before this court finds itself within that Serbonian Bog of semantics and polemical maze we are going to clarify our position and determine along with the growing majority rule that an accident is an accident whether it be in the 'means' or the 'result.' In so determining we do nothing more than follow the cardinal rule of contract construction-the intention of the parties. Provides that if: (1) a county adopts an ordinance approving the provision of community fast responder services; and (2) the nonprofit corporation directing the provision of community fast responder services maintains a certain level of insurance; the liability of a community fast responder is limited to the amount of insurance. Provides that a community fast responder nonprofit corporation does not include a hospital or an entity operated or directed by a hospital. Provides that fast responders have the same immunity from liability as first responders. Requires a community fast responder nonprofit corporation to purchase an insurance policy that provides $700,000 of insurance coverage for the liability of the corporation's community fast responders. Provides that the limit of liability of a community fast responder nonprofit corporation is $5,000,000. Makes conforming amendments. First, the express language of section 1797.201 allows a section 1797.201 provider to increase the level of services it provides, requiring only that prehospital emergency medical services shall be continued at not less than the existing level. (See ante, at p. 836, fn. 1 of 642d, at p. 884, fn. 1 of 938 P.2d, italics added.) The language of section 1797.201 does not support the majority's proffered distinction between the level and the type of services provided. To the contrary, what is retained under section 1797.201 is the general right to the administration of prehospital EMS, which, by its very definition, includes all different types of services. (See � 1797.72 defining �emergency medical services' as the services utilized in responding to a medical emergency.) Thus, under the language of the statute, the right of a section 1797.201 provider to increase the existing level of its prehospital emergency medical services encompasses the right to initiate different types of services. (See City of Petaluma v. County of Sonoma, supra, 124th at p. 1245, 152d 617 The word �level' in section 1797.201 obviously refers to such matters as the quantity of available staff, vehicles, equipment, etc., and/or to the type and character of available EMS services as constituting basic, advanced, or limited advanced life support (see �� 1797.60, 1797.52, 1797.92)) Dental Lawyer Services Mansfield 72944 catheter: the left and right femoral veins; the right and left internal jugular 2611974 Diego Cotoc Siquina v Commonwealth of Virginia 12/22/1998
Instead of attacking the issue of what police should do with seized medical-marijuana plants and drugs through legislation, policy makers have decided to let it play out in the courts. Legal Malpractice for Failure to Warn of the Consequences of Losing Your Case Board member Dr. Juan Villareal would not disclose who the organization's donors are. "Donors can be anonymous, and a lot of them don't want their names mentioned," he told WFAA, adding that TDMR does not have members, only donors. UCI Medical Center in Orange, California was found by the Times to have had 32 patients die while awaiting transplants while the hospital turned down organs that might have saved some of them. Worse yet, patients at UCI were apparently unaware that UCI had no full time liver transplant surgeon for more than a year, which limited its ability to perform operations. The Times investigation prompted the agency to pull the funding from this institution. Justia Opinion Summary: Tyler Blok, a criminal defendant who was released from custody pursuant to a security release agreement, sought the writ of mandamus to compel the judge who set the terms of the agreement to modify a condition that forba. During a second surgery by a different orthopedic surgeon to shave the bone spur that was the actual cause of the shoulder pain, the second surgeon visualized and inspected what the first operative report identified as the surgical site of the rotator cuff tear and repair and described the area as pristine. The second surgeon testified that the coracoacronial ligament that was to have been repaired in the rotator cuff repair surgery was still intact and without any evidence that a repair had ever taken place. Despite the alarming reports coming out of the rest of Europe, in September 2011 Health Minister, Dr James Reilly defended the actions of his predecessor Mary Harney who encouraged people to be vaccinated with the Pandemrix H1N1 swine flu vaccine when Ireland faced the risk of an epidemic. Dr Reilly told the D�il that no link has been established yet between the swine flu vaccine and narcolepsy, but the Government will endeavour to ensure all families of children diagnosed with narcolepsy get the medical and social supports they need. Jwan has appeared as Toronto personal injury lawyer before various levels of Court, the Financial Services Commission of Ontario, the Labor Board and the Criminal Compensation Board. She is a member, in good standing, of the Canadian Bar Association, the Ontario Bar Association and the Ontario Trial Lawyers Association. It's vitally crucial that you pick anyone you might be comfortable with, but you should not halt there. To carry the method the individual harm law firm need to be accredited from the authorized method for the hurt man or woman. That way, your very own injuries law firm IL can consider the specifics and specifics conveniently and can give you the proper ways to resolving your procedure.