Notable Opinions this Week – Global Warming Insurance, False Statements and Health Care Fraud Class Actions


Our Daily Opinion Summary writers have picked some interesting cases to highlight this week, with one in particular cutting close to home.

First up, we leave the lower forty-eight and head up to Alaska with AES Corp. v. Steadfast Ins. Co.. The case involved the village and city of Kivalina, a community located on an Alaskan barrier island, which filed a lawsuit in the U.S. District Court against AES and other defendants for allegedly damaging the village by causing global warming through the emission of greenhouse gases. AES requested that Steadfast provide a defense and insurance coverage pursuant to the terms of their commercial general liability policy. Steadfast provided AES a defense under a reservation of rights and filed a declaratory judgment action, claiming that it did not owe AES a defense or indemnity regarding the Complaint brought by Kivalina. The circuit court granted Steadfast’s motion for summary judgment, holding that the Complaint filed by Kivalina did not allege property damage caused by an “occurrence” as that term was defined in AES’s contracts of insurance with Steadfast.

The next pick, United States v. Abrahem, relates to the Fort Hood shooting in 2009, and, as our summary writer who picked this one noted, there’s some “drama in the facts.” In 2010, the defendant entered the Brooke Haven Army Medical Center and demanded to see the patient in the hospital accused of the shooting, Major Nidal Hasan. While the defendant did not request Major Hasan by name, he claimed he was the Major’s lawyer. The defendant, after some back and forth with the medical center staff, was escorted out of the Center and left the premises. Defendant was convicted of knowingly making a false statement to the Department of Defense security personnel and then subsequently appealed the decision on the ground that the evidence was insufficient to establish that his false statement that he was a lawyer was material. The court concluded that a statement to a decision maker in a military hospital that the speaker was a lawyer for a restricted military prisoner was the type of statement capable of influencing the decision maker to allow the speaker to visit the patient and that the protocols in place did not affect the statement’s materiality. The court also concluded that defendant’s delivery of the statement in a manner not likely to persuade did not affect the materiality of the statement. Accordingly, the court affirmed defendant’s conviction.

Last up, Rohn v. Dana Farber/Harvard Cancer Center, which resonated with our summary writer who is passionate about social justice issues related to health care access. As she noted, “Health care is my seeing red issue and this case had a bulls-eye on it.” Plaintiffs are a dissident group, within a larger class of medical patient consumers in a case alleging fraud in overcharging for the medication Lupron. The patients, along with insurers and private health care providers, obtained a $150 million settlement agreement that was approved by the district court, of which $40 million was allocated to consumers. That agreement provided that if there were unclaimed monies from the $40 million consumer settlement pool after full recovery to consumer plaintiffs, all unclaimed funds would go into a cy pres fund to be distributed at the discretion of the trial judge. Dissident plaintiffs appealed distribution of the $11.4 million cy pres fund to the Dana Farber/Harvard Cancer Center and the Prostate Cancer Foundation for work on the treatment of the diseases for which Lupron is prescribed. They have already recovered more than 100% of their actual damages. The First Circuit affirmed. After expressing concern about distribution of such funds by judges and adding an audit requirement, the court noted the importance of avoiding windfalls for plaintiffs who have already been fully compensated.