KCOM, Inc. v Employers Mutual insurance Casualty Company

Employers appealed the denial of its motion to confirm a property loss appraisal. The panel dismissed for lack of jurisdiction. It held that Employers’ motion was based solely on state law and state law cannot expand the jurisdiction of a federal appellate court. It held that the Federal Arbitration Act did not provide a basis for jurisdiction as denial of the state law motion is not one of the grounds listed in the appellate section and in any event allowing review would undermine congressional intent on what should and should not be reviewed in an interlocutory appeal. It finally rejected Employers’ collateral order argument holding avoiding discovery of the appraisal board members about the process was not a basis to allow review noting that even attorney client privilege issues must wait for review after final judgment is entered.

CEEG (Shanghai) Solar Science & Technology CO., Ltd. v LUMOS, LLC

CEEG appealed the denial and dismissal of its motion to confirm an arbitration award against LUMOS. The panel affirmed. It held that under the New York Convention on international arbitration award, the Chinese language notice was improper as the parties dealings had been in English, the parties contracts specified the English version would control and further stated that English would use in dispute resolution proceedings like arbitration. It assumed without deciding prejudice need to be proven and held LUMOS proved prejudice as the improper notice deprived it of the right to patriciate in the formation of the arbitration panel and there was no clear error in the district court’s finding that LUMO acted diligently to participate given the difficulties on securing Chinese counsel.

United States v Little

Little appealed his felon in possession of a firearm conviction arguing erroneous jury instructions and also appealed his entice. The panel, 2-1, affirmed the conviction and vacated and remanded the sentence. The majority first held that Supreme Court case law now holds that constructive possession requires both power and intent to control an object and thus 10th Circuit precedent rejecting the intent element was overruled. The majority held the omission of the intent element was harmless as the evidence that Little was only in a very small structure for seven and a half minutes and could not have missed the presence of firearms as well as testimony that he was surprised that only two of three stolen weapons were recovered compel the conclusion that he intended to control the firearms. The majority rejected Little’s challenge to aiding and abetting instructions holding there was evidence the landlord was a felon and the jury could infer Little intended to assist the landlord in posseting firearms by hiding them in the small structure. It held that a deliberate indifference instruction was improper as there was direct evidence of knowledge, but that the evidence of guilt was substantial and thus giving of the instruction was harmless beyond a reasonable doubt. It held the instruction that the possible guilt of others is not a defense was proper here as Little blamed others for eth presence of the firearms. Sentence was vacated as it was enhanced under the guidelines residual clause which was held unconstitutional while Little’s appeal was pending. The dissent argued that the government did not argue harmless error as to the constructive possession error and none of the conditions for sua sponte analysis are present as the harmfulness of the omitted intent element is at least debatable given the minimal evidence on the issue in the record and thus remand for further proceedings is the correct outcome.

Hale v Fox

Hale appealed the dismissal of his 18 USC 2241 motion for lack of jurisdiction. The panel affirmed. It held there was no jurisdiction over Hale’s claim that his conduct did not violate the statues he was convicted of violating because he had raised these at criminal trial and on direct appeal and thus could not raise it in a 2255 motion, Hale failed to present new evidence and thus failed to argue actual innocence, there is nothing unconstitutional about limiting Hale to challenge his conviction to an appeal. It held there was no jurisdiction over Hale’s claim that the jury foreman read unauthorized news coverage of the trial as the claim is not based on new exculpatory evidence or a newly announced retroactive constitutional decision, those grounds are the only authorized grounds for a second collateral attack, Hale’s juror misconduct claim is neither and no serious constitutional questions arise from the bar 2241 review as Hale has no right to more than one round of collateral review and limiting the habeas process to one full round of review does not suspend habeas corpus.

Etehrton v Owners insurance Company

Owners appealed the denial of its new trial motion and the verdict against it for breach of contract and unreasonable delay and denial. The panel affirmed. It held there was no error in admitting causation evidence from Etherton’s expert as the expert’s methodology was based on medical literature and the expert’s experience in teaching and research back injuries in rear end car accidents, did not solely rely on the temporal relationship between accident and symptoms , explored alternative causes and was a proper fit as it went to the central issue in the case while the district court was not required to read the cited literature before making its ruling on admissibility. It held that the undue delay claim was proper as Colorado law bars undue delay, allowing disagreement about amount owed to defeat the claim would undermine legislative intent, make the claim coextensive with breach of contract claims which would also undermine legislative intent. Reading the statute as Owners argues would render several provisions of the surrounding statues superfluous and the Colorado Court of Appeals has rejected the same argument in a different case. It held that reasonable dilatability of a claim is not a defense to an unreasonable denial claim and there was evidence that Owners was unreasonable such as asserting delays in seeking treatment when in fact Etherton started treatment within two weeks of eth collision under the facts of the case and there was evidence that Owners failed to follow industry practice by not reasonably explaining its decision to deny the claim. The panel finally upheld the district court’s grant of Etherton’s motion correct the judgment by increasing the penalty for undue denial or delay because the relevant statue’s plainly allow the award of two times the amount recovered in the underlying breach of contract claim, only litigants who prove both breach of contract and unreasonable delay or denial can claim eth penalty damages and the Colorado Court of Appeals and an earlier panel decision of eth 10th circuit have adopted this view. Two members of the panel added a concurrence arguing that Colorado law on these matters is confusing, but, Owners did not raise the issue of whether reasonable and fairly debatable are the same and thus the judges concluded that, while the case was close, the jury could find unreasonable conduct here and thus they joined the main opinion in full.