December 16, 2013 4th Circuit published opinions

Perini/Tompkins Joint Venture v Ace American Insurance Company

Venture settled a suit involving its conduct as a general contractor on a construction project in Maryland without notifying Ace. It then filed a claim under the insurance policy issued by Ace covering the project. Ace denied the claim and Venture sued Ace for breach of contract. The district court granted summary judgment to Ace. The panel affirmed. It held that under both Maryland and Tennessee law, Ace had no liability. It held that no liability existed in Maryland (the site of eth contract’s performance) because the policy had a condition precedent that Venture obtain written consent form Ace before settling and required Venture to follow all the provisions of the contract before suing Ace. This outcome was necessary under Maryland precedent as any other rule would require Ace to prove a negative, namely no prejudice, and would effectively eliminate insurers’ right to investigate claims and control the course of litigation. The panel held no liability existed under Tennessee law (which is the state where the contract was created) because precedent also excuses liability when a claimant fails to provide notice of settlement. The panel finally rejected Venture’s claim of waiver as Ace actually reserved its rights and otherwise acted consistent with its rights and thus did not intentionally relinquish its rights under the policy.

Occupy Columbia v Haley

Occupy sued Haley under 42 USC 1983 alleging violation of its members First Amendment  rights when they were arrested and removed from public parks on the State Capitol grounds after a 6 pm deadline expired. Haley moved for judgment on the pleadings on qualified immunity grounds which the district court denied. The panel affirmed. It held the operative complaint alleged a violation of first Amendment rights as it stated the members were peaceably protesting on public property, not violating any law and there were no valid time place and manner restrictions in place. The panel held that the right to protest at public forums like the parks here is a First Amendment right. It also held that there were no valid time restrictions imposing the deadline as the policy relied upon was actually a  scheduling mechanism to avoid conflicts and in any event had no standards to guide the decisionmaker’s discretion. It also held that this right was clearly established at the time of the incident as numerous Unite States Supreme court cases hold protests and other dissenting speech is protected and arrest is not authorized in the absence of valid restrictions. Thus, at the pleading stage, Haley and her codefendants are not entitled to qualified immunity.

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