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Saturday, June 30, 2012
Sigourney Weaver, David Hyde Pierce aim for stage
This combination of 2012 file photos shows actors Sigourney Weaver, left, and David Hyde Pierce. Weaver and Pierce are teaming up to play siblings as both make a return to the stage in a Chekhov-inspired play, Christopher Durang?s ?Vanya and Sonia and Masha and Spike.? The play, which takes characters and themes from the Russian playwright and sets them in present day Pennsylvania, will start in fall 2012 at the McCarter Theatre in Chicago before jumping to Lincoln Center Theater in New York in October 2012. (AP Photo/Danny Moloshok, Chris Pizzello)
This combination of 2012 file photos shows actors Sigourney Weaver, left, and David Hyde Pierce. Weaver and Pierce are teaming up to play siblings as both make a return to the stage in a Chekhov-inspired play, Christopher Durang?s ?Vanya and Sonia and Masha and Spike.? The play, which takes characters and themes from the Russian playwright and sets them in present day Pennsylvania, will start in fall 2012 at the McCarter Theatre in Chicago before jumping to Lincoln Center Theater in New York in October 2012. (AP Photo/Danny Moloshok, Chris Pizzello)
NEW YORK (AP) ? Sigourney Weaver and David Hyde Pierce are teaming up to play siblings this fall as both make a return to the stage in a Chekhov-inspired play.
Weaver, a three-time Academy Award nominee, and Tony Award-winning Pierce will star in Christopher Durang's "Vanya and Sonia and Masha and Spike."
The play, which takes characters and themes from Chekhov and sets them in present day Pennsylvania, will start life at the McCarter Theatre in New Jersey before jumping to Lincoln Center Theater in October.
In the play, Vanya (Pierce) and his stepsister have stayed home to take care of their ailing parents while their movie star sister Masha (Weaver) has been touring the world. Sparks fly at a family reunion.
Weaver, who met Durang when both attended Yale University's School of Drama, has been in a Durang play before ? starring on Broadway in his "Sex and Longing" in 1996. Weaver and Pierce have both been in the playwright's "Beyond Therapy," but she was in an off-Broadway 1981 version and he took it to Broadway in 1982.
"Vanya and Sonia and Masha and Spike" will run from Sept. 7 through Oct. 7 at the McCarter Theatre. Previews at Lincoln Center begin Oct. 25 with an opening set for Nov. 12 at the Mitzi E. Newhouse Theater.
It will be directed by Nicholas Martin. The rest of the cast will be made up of Genevieve Angelson, Shalita Grant, Billy Magnussen and Kristine Nielsen.
Weaver, whose Broadway credits include "Hurlyburly" in 1984, is working on the USA series "Political Animals." Her notable film credits include "Alien," ''Avatar," ''Working Girl" and "Ghostbusters."
Four-time Emmy Award-winner Pierce has spent a lot of time on stage since the end of his sitcom "Frasier," including Broadway stints in "Spamalot," ''Curtains," ''Accent on Youth" and "La Bete."
___
Online:
http://www.mccarter.org
http://www.lct.org
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Friday, June 29, 2012
ForexTVConnect: European Union Leaders Agree On Bank Recapitalization Plan - June 28 12 11:26 EDT http://t.co/fRllswiK via @ForexTVConnect
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Baby Showers Are Fun and Easy to Host With Fantastic Products ...
London, UK -- (SBWIRE) -- 06/28/2012 -- As any mum-to-be knows quite well, preparing for the arrival of a new baby is one of the most exciting times in a woman?s life. From decorating the nursery and selecting a car seat to shopping for nappies and tiny little outfits, there is plenty to do to get ready before the birth.
Purchasing all of the items an infant needs is also quite expensive, which can leave many parents feeling a bit overwhelmed. This is one reason why friends and family of the expectant mum will often throw her a baby shower?in order to figuratively shower her with many of the things her new baby will need.
Jo Fazel understands first-hand how fun and practical baby showers can be. The UK mum of two young girls has enjoyed attending the parties over the years, both as a guest and guest of honor.
Along the way, Jo realised that there weren?t many places in the UK where hosts could find many of the baby shower-themed items that they needed in order to hold a successful party. Things like baby shower-related games, tableware, decorations and unique gifts were not that easy to find.
As a result, Jo decided to open up her own online store that is dedicated to providing shoppers across the UK everything they need to throw a fantastic baby shower.
?As a family-run business I pride myself on my excellent personal service,? Jo wrote in an article on her website, adding that she is constantly sourcing new and gorgeous products and she always loves to get customer feedback or ideas of other products and gifts people would like her to stock.
?I often come across fabulous products made by other work at home mums and I love to showcase their work to show what amazing things we mums can come up with! My number one priority is making sure that I have the best possible choice of quality, fun and unique products for your Baby Shower!?
Using the website to help plan the perfect shower is easy and fun; shoppers can visit the inviting and colourful pink and blue site at anytime and browse through the wide assortment of merchandise. Handy category tabs located on the left hand side of the home page make it easy for shoppers to find what they are looking for quickly and easily.
As a bonus, everyone who signs up for the company?s newsletter will also receive a free baby shower guide filled with advice and tips, as well as 10 percent off the first order, and exclusive sales and offers.
About Best Baby Shower
Best Baby Shower is an online store dedicated to providing everything hosts would need to throw an amazing baby shower party. The UK-based website features a wide assortment of decorations, games and favours, original and unique baby bouquets, presents, nappy cakes and much more. For more information, please visit http://www.bestbabyshower.co.uk
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Forman v. WACHOVIA INSURANCE SERVICES, INC. | Chapter 11 ...
CHARLES M. FORMAN, CHAPTER 11 TRUSTEE. Plaintiff,
v.
WACHOVIA INSURANCE SERVICES, INC., Defendant.
Civil Action No. 06-1622 (PGS).
United States District Court, D. New Jersey.
September 13, 2010.
OPINION
PETER G. SHERIDAN, District Judge.
Charles M. Forman (?Plaintiff) is the bankruptcy trustee for Omne Staffing, Inc. (?Omne Staffing?) and its related entities (collectively, ?Omne?). In connection with his role as trustee, Plaintiff has filed suit against Wachovia Insurance Services, Inc. (?Defendant? or ?Wachovia?) for its alleged failure to procure the appropriate workers? compensation insurance for Omne. Specifically, Plaintiff alleges that Omne requested coverage from Wachovia for two businesses, Omne Staffing and Omne Staff Leasing Services, Inc. (?Omne Leasing?). However, due to Wachovia?s alleged negligence, Omne only received coverage for Omne Staffing. As a result, Plaintiff alleges, the Omne bankruptcy estate has been directly exposed to claims made by two injured Omne employees for alleged work-related injuries.
Presently before the Court are cross-motions for summary judgment. For the following reasons, Defendant?s motion for summary judgment is granted, and Plaintiffs motion is denied.
I. BACKGROUND
Omne was controlled and founded by Barry Sinins. (See Kaller Decl. Ex. S ?? 58-72, 89.) Omne was a ?professional employment? company that ?contracted with customers to furnish temporary and leased employees and employment related administrative services.? (Id. ? 77.) See also MV Tramp, v. Omne Staff Leasing, Inc., 378 F. Supp. 2d 1200, 1202-03 (E.D. Cal. 2005) (Omne provided ?a variety of services to clients by hiring their clients? employees as their own and then leasing those employees back to their clients.?).
In June 2002, Omne corporate officers Sinins and Richard Galdi sought new workers? compensation insurance for their employees. (Amend. Compl. ? 10.) In connection with that effort, Sinins and Galdi, met with Robert W. Cantrell, a broker at Wachovia. ( Id.) Omne needed workers? compensation insurance because the company?s existing policy with Great American Insurance Companies (?Great American?) was set to expire at the end of July 2002. MV Transp.,318 F. Supp. 2d at 1203. Great American had refused to renew the Omne?s workers? compensation policy due to late reporting of claims. (Kaller Decl. Ex. C (Wood Dep. 61:8-9).)
At the June 2002 meeting, Sinins allegedly ?specifically requested? workers? compensation insurance for both Omne Staffing and Omne Leasing. (Lowenthal Decl. Ex. 5 ? 9.) [1] See also MV Trans., 378 F. Supp. 2d at 1207-08 . This allegation, however, is sharply disputed by Defendant. Cantrell testified at his deposition that Omne Staffing was the only operating entity, and thus, he was only responsible for procuring coverage for Omne Staffing:
[T]here was a discussion of the other trade names, all the names that were associated with the offices as trade names used for marketing and local representation, but that all payrolls and all employees w[ere] run through Omne Staffing, Inc., and that all the documentation that was provided corroborated that ? statements by Galdi and Sinins that the payroll was all run through Omne Staffing.
(Id. Ex. B (Cantrell Dep. 43:13-21).) [2]
In the days and weeks that followed the June 2002 meeting, Cantrell ?collected various source documentation? necessary to procure a workers? compensation policy for Omne Staffing. (Pl.?s. 56.1 Stmt. ? 23.) These documents included the following: (a) past insurance policies; (b) website information; (c) company newsletters; (e) historical loss runs; (f) a prior audit report (g) regulatory files; and (h) financial statements. (Id.) Notably, contrary to Cantrell?s understanding, some of these documents suggest that Omne was operating under several subsidiaries, not just Omne Staffing. For example, Omne operated as?OMNE STAFFING, INC. ET AL? on its Great American policy. (Lowenthal Deck Ex. 22 (emphasis in original).) Omne Staffing?s May 29, 2002 audited financials for years 1999 through 2001 stated? Omne Staffing, Inc. and Subsidiary.? (Id. Ex. 23.) Omne advertised on its Web site that it conducted business in Texas as both ?Omne Staffing, Inc.? and ?Omne Staff Leasing Services, Inc.? (Id. Ex. 21.) And Omne?s company newsletter referenced both the ?Staffing Group? and the ?Leasing Group.? (Id.)
In addition to gathering source documents, on June 13, 2002, Cantrell completed an industry-standard ?Accord Insurance Application? in preparation for soliciting potential insurers. Cantrell?s application was inaccurate in at least three respects. First, Question 1 in the General Information section asked whether Omne Staffing was a subsidiary of another entity or had any subsidiaries. Cantrell did not answer the question despite Omne?s source documentation suggesting operating subsidiaries. (Lowenthal Decl. Ex. 7.) Second, Question 18 inquired about whether any previous coverage had been non-renewed in the last three years. (Id. Ex. 25.) Cantrell answered? no,? even though the Great American policy had been non-renewed as a result of late-reporting of claims. (Kaller Decl. Ex. C (Wood Dep. 61:8-9).) Finally, Question 21 asked whether Omne leased employees to or from other employers. (Lowenthal Decl. Ex. 25.) Cantrell answered ?no,? omitting any reference to Omne Leasing. (Id.)
On June 28, 2002, Cantrell and Kemper Insurance Company (?Kemper?) began negotiations on a workers? compensation policy for Omne. (Amend. Compl. ? 12.) In or about mid-July, Kemper agreed to cover Omne Staffing through a Kemper subsidiary, American Protection Insurance Company (?AMPICO?), effective July 31, 2002. (Lowenthal Decl. Ex. 12.) For his efforts, Cantrell?s employer, Wachovia, received a substantial commission, which Plaintiff suggests colored Cantrell?s judgment. (See Pl.?s. 56.1 Stmt. ? 18.) Cantrell did not obtain coverage for Omne Leasing or any other Omne-related entity. (Lowenthal Decl. Ex. 12.) See also MV Trans., 378 F. Supp. 2d at 1203 (?AMPICO asserted that it had issued a policy to Staffing, not Leasing.?).
In December 2002 and April 2003, AMPICO conducted a premium audit of Omne. As part of the April 2003 audit, AMPICO requested from Omne a list of all payrolls and customers. (Kaller Decl. Ex. V.) In response to that request, Sinins purportedly indicated to AMPICO that ?Omne Staffing was the only company, and he provided all the payroll and revenue for that.? (Id. Ex. F (Walsh Dep. 16:24-25).) Nonetheless, AMPICO?s audit found that 21 out of 27 employees who made claims were not listed on the payroll records for Omne Staffing produced by Sinins. (Id. (14:11-23).) Sinins?s representation to AMPICO auditors is consistent with Cantrell?s recollection of his June 2002 meeting with Sinins. (See id. Ex. B (Cantrell Dep. 43:13-21) (?[T]here was a discussion of the other trade names, all the names that were associated with the offices as trade names used for marketing and local representation, but that all payrolls and all employees w[ere] run through Omne Staffing, Inc.?).)
The discrepancy between the employee payroll information provided by Sinins and the April 2003 audit triggered a premium fraud investigation by AMPICO. (Id. Ex. H (Smith Dep. 11:1-4).) As part of that investigation, AMPICO?s investigator met with Sinins and Galdi. According to Defendant, both Sinins and Galdi again represented that Omne Staffing was the only operating entity. (Id. (79:2-6).) Nevertheless, AMPICO?s investigation revealed that Omne was conducting business under subsidiaries and had failed to provide AMPICO with notice of most workers? compensation claims. Rather, notice usually came from either claimants? attorneys or a state insurance department. (Id. (27:9-28:4).) According to Defendant, the motivation for Sinins?s alleged concealment of claims ? what Defendant calls ?self-adjusting? ? was to reduce Omne Staffing?s premiums. (Def?s. S.J. Br. at 4, 10.)
In addition, in and around August 2003, the United States Department of Justice also began and investigation of Omne for premium fraud. (Kaller Deck Ex. G ?? 11.) See also MV Trans., 378 F. Supp. 2d at 1203 . As a result of that investigation, on or about March 9, 2004, the Federal Bureau of Investigation executed warrants and seized approximately $2.8 million in cash, forcing Omne to suspend all business operations, and eventually leading to Chapter 11 bankruptcy on April 9, 2004. (Kaller Deck Ex. G ?? 12-13: Amend. Compl. ?? 3.) With no viable business to reorganize, Omne?s bankruptcy was eventually converted to a Chapter 7 liquidation pursuant to 11 U.S.C. ? 1112. (See Kaller Decl. Ex. ? 18.)
On May 6, 2004. Plaintiff Charles M. Forman was appointed as trustee for the Omne estate. (Amend. Compl. ? 4.) In connection with his responsibilities as trustee, Plaintiff thereafter began marshaling potential assets for the estate. For example, on January 31, 2005, Plaintiff filed an adversary proceeding against Sinins and his family members. In that adversary proceeding, Plaintiff alleged, among other things, that Sinins? perpetrated a fraud on the Debtors?, their customers, their employees and others . . . and conducted the Debtors? affairs in a manner that caused a pre-petition seizure of assets, caused the Debtors? insolvency, caused the Debtors? bankruptcy filings, and exposed the Debtors to significant civil liabilities and potential criminal liabilities as well.? (Kaller Decl. Ex. S ?? 1-2.) Plaintiff also brought this action on April 6, 2006, which he suggests is ?the largest asset left to be monetized in the bankruptcy estate.? (ECF No. 157 Ex. ? 25.)
Plaintiff?s suit is precipitated on the theory that Wachovia?s alleged professional malpractice exposed the Omne estate to two related forms of damages: (1) claims brought by two injured Omne employees not covered under the AMPICO workers? compensation policy; and (2) attorneys? fees generated by workers? compensation claims not covered as a result of Wachovia?s alleged negligence. However, Plaintiff did not obtain an expert for liability or file an affidavit of merit in accordance with N.J.S.A. 2A:53A-27, which Defendant argues bars Plaintiffs suit.
The two alleged Omne employees injured are Timothy Hood and Timothy Hoffman. Hood was purportedly ?leased? from Omne Leasing to Williams Marine, Hood injured his left foot on a barge on October 9, 2002 in Naples Florida. (Kalier Decl. Ex. K.) [3] As a result of his injuries, Hood underwent several operations and eventually a foot amputation. (Def s. Br. at 15.) On October 29, 2004, after previously filing an action in Florida state court, Hood filed a proof of claim in the bankruptcy court for $2,000,000. (Kalier Decl. Ex. K.) The other Omne employee, Hoffman, was purportedly ?leased? from Omne Leasing to C & D Dockworks. On January 13, 2003, Hoffman dove off a pier during the work day following a bet made with his supervisor. As a result, Hoffman fractured his neck and is now a quadriplegic. (Kalier Decl. Ex. M.) On May 17, 2005, Hoffman filed a proof of claim estimated to be $15,000,000, which was subsequently amended to $23,000,000 on February 25, 2008. (Id. Exs. M, N.) According to Hoffman, he has also filed suit against C & D Dockworks and its insurance company in Florida, securing a substantial settlement.
On or about July 6, 2010, Hood and Hoffman agreed to seek direct compensation from Wachovia through their personal attorneys. (Id. Ex. 3.) According to the settlement agreement, Wachovia will pay Hood and Hoffman $163,750 and $736,250, respectively, in exchange for the withdrawal of their claims against the Omne bankruptcy estate. (Id.) In offering this settlement, Wachovia theorizes that the majority of damages to Plaintiff caused by Wachovia?s alleged negligence will be mooted because the bankruptcy estate will no longer be exposed to Hood?s and Hoffman?s claims. On September 8, 2010, over Plaintiffs objection, the Court entered an order permitting the withdrawal of Hoffman?s claim. Hood?s claim was withdrawn without objection. The only remaining claim is the Trustee?s claim for legal fees incurred. Despite the limited relief remaining, the Trustee must prove liability.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure ?if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.? Celotex Corp. v. Catrett, All U.S. 317, 322-23 (1986) (internal quotations omitted). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 248 (1986).? In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party?s evidence `is to be believed and all justifiable inferences are to be drawn in his favor.?? Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, All U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 112 F.2d 1103, 1109 (3d Cir. 1985) . The party opposing the motion for summary judgment cannot rest on mere allegations. Anderson, 477 U.S. at 248. ?[Unsupported allegations" are insufficient to defeat summary judgment. Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990) . Moreover, only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgement. Anderson, All U.S. at 247-48. If a court determines, "after drawing all inferences in favor of [the non-moving party], and making all credibility determinations in his favor ? that no reasonable jury could find for him, summary judgment is appropriate.? Alevras v. Tacopina, 226 F. App?x 222, 227 (3d Cir. 2007) .
III. DISCUSSION
Defendant seeks dismissal of Plaintiff?s two count complaint pursuant to the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27. The Affidavit of Merit Statute states in pertinent part:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
The Affidavit of Merit Statute ?was enacted as part of a tort reform package designed to ?strike [] a fair balance between preserving a person?s right to sue and controlling nuisance suits.? Palanque v. Lumberi-Woolley, 168 N.J. 398, 404 (2001) (internal quotations omitted; alteration in original). ?In professional malpractice actions plaintiffs are required to provide an affidavit from an appropriate licensed professional attesting to the merit of plaintiffs? claims.? Id. The intent of the statute is to ?curtail frivolous litigation without preventing access to the courts for meritorious claims.? Id. (internal quotations omitted). Thus, a ?failure to comply with the statute, either strictly or substantially, will result in dismissal with prejudice, unless an exception applies.? Boerger v. Commerce Ins. Servs., No. Civ.A. 04-1337, 2005 WL 2901903, at *2 (D.N.J. Nov. 1, 2005) (internal quotations omitted).
To determine whether the Affidavit of Merit Statute applies, a court must consider three elements: ?(1) whether the action is for damages for personal injuries, wrongful death or property damage (nature of injury); (2) whether the action is for malpractice or negligence (cause of action); and (3) whether the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint [ ] fell outside acceptable professional or occupational standards or treatment practices (standard of care).? N.H. Ins. Co. v. Diller, 678 F. Supp. 2d 288, 308 (D.N.J. 2010) (quoting Court v. Gardner, 173 N.J. 328, 334 (2002) ) (alteration in original; internal quotations omitted).
However, even where these three elements are satisfied, courts do not require an affidavit of merit in so-called ?common knowledge? cases. See Hubbard v. Reed, 168 N.J, 387, 395-96 (2001) . The common knowledge doctrine applies where a ?`jurors? common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant?s negligence without the benefit of specialized knowledge of experts.?? Id. at 394 (quoting Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999) ). A classic example of a common knowledge case is where a dentist pulls the wrong tooth. See, e.g., id. at 396. The New Jersey Supreme Court has made clear though, that the common knowledge doctrine is to be construed narrowly. Id. at 397. Thus, in the insurance coverage context, the common knowledge doctrine is limited to ?obvious? cases of negligence. Carolina Cms. Ins. Co. v. Cryan?s Ale House & Grill, Civil Action No. 08-2100 (MLC), 2009 WL 497558, at *6 (D.N.J, Feb. 26, 2009); compare id. (preparation of proposal form ?beyond common knowledge of lay persons?) with Boerger, 2005 WL 2901903, at *3 (D.N.J. Nov. 1, 2005) (failure to obtain correct dollar amount of coverage did not require assessment of professional?s care, skill or knowledge) and Bates v. Gambino, 72 N.J. 219, 226 (1977) (per se negligence established where broker lacked knowledge required by law).
As a preliminary matter, it is undisputed that this is a professional negligence action, (Amend. Compl. ? 1.) Directly at issue is ?whether the care, skill or knowledge exercised? by Cantrell ?fell outside acceptable professional or occupational standards.? Diller, 678 F. Supp. 2d at 30S, [4] Thus, the requirements of N.J.S.A. 2A:53A-27 have been satisfied. The only question is whether the common knowledge doctrine negates Plaintiffs requirement to obtain an affidavit of merit.
Based on the complex and contradictory set of circumstances set forth by the parties, the common knowledge doctrine is inapplicable. Plaintiffs precise theory of liability rests on Cantrell?s duty to thoroughly investigate Omne?s prior coverage and truthfully and accurately complete the Accord Insurance Application. Plaintiff alleges that Wachovia breached this duty by failing to include other Omne-related entities as named insureds on the AMPICO policy. In making these findings, a jury would have to reconcile, among other things, the source documents Cantrell received and forwarded to Kemper ? past insurance policies, Web site information, company newsletters, historical loss runs, a prior audit report, regulatory files, and financial statements ? with the testimony of Cantrell, and the prior statements made by Sinins. [5] None of this information provides a straightforward or obvious answer as to whether Cantrell was negligent. (See, e.g., Lowenthal Dccl. Ex. 22 (listing ?OMNE STAFFING. INC. ET AL? as the insured).) See generally Huhbard, 168 N.J. at 397 (holding that common knowledge doctrine is narrowly construed). Only an expert with specialized knowledge could opine as to whether Cantrell?s actions violated his duty.
This case is analogous to Diller, a recent District of New Jersey case published subsequent to the parties? briefing on summary judgment. In Diller, an insured filed a third-party complaint against his broker for negligence when the plaintiffs insurance company sought to disclaim coverage. 678 F. Supp. 2d at 294-95 . At issue was whether the broker failed to accurately prepare the insurance application based on, among other things, the insured?s previous ?loss history.? Id. at 293. The court held that, because completion of the insurance application implicated professional responsibilities and judgment, the common knowledge exception did not apply. Id. at 310. Errors in preparing the application, the court added, ?differ from situations where the defendant?s negligence is obvious, such as a doctor pulling out the wrong tooth, a doctor misreading a laboratory report, or a pharmacist filing a prescription with the wrong medication.? Id. at 311 (internal quotations omitted). Plaintiffs case against Wachovia is no different. As noted, one of the chief components of Cantrell?s alleged negligence is his failure to truthfully and accurately complete the Accord Insurance Application. (Lowenthal Deck Exs. 7, 25.) Thus, the common knowledge doctrine is inapplicable.
Finally, Plaintiff argues that the Court previously ruled in his favor on the Affidavit of Merit argument at the motion to dismiss stage, and therefore the issue is not subject to reconsideration. [6] However, as evident from the transcript of the prior proceedings, the Court?s ruling was not that definitive. Rather, the Court specifically stated that the issue should be ?fleshed out on a summary? judgment? and ?considered] . . . on a full record.? (ECF No. 41 (25:7-13).) Although most cases implicating the Affidavit of Merit Statute can be decided on a motion to dismiss, [7] the Court was wary in this case of making a dispositive ruling based only on the threadbare allegations in the complaint, and when further discovery would no doubt reveal additional complexities. ( See ECF No. 41 (23:14-21).) Indeed, if a court was always required to decide the Affidavit of Merit issue on a motion to dismiss, it would encourage artful pleading, portraying complicated matters as straightforward common knowledge cases. Thus, the Court?s previous ruling on Defendant?s motion to dismiss did not preclude Defendant from moving for dismissal on summary judgment pursuant to the Affidavit of Merit Statute. Accordingly, Defendant?s motion for summary judgment is granted, and Plaintiffs complaint is dismissed. All other motions are denied as moot.
[1] Prior to his death, on December 28, 2004, Sinins filed a declaration in MV Transportation, which was re-filed in this case as an exhibit to the Lowenthal Declaration. Defendant argues the Sinins Declaration should be struck as inherently unreliable and because it was not subject to cross-examination. (Def?s. Br. at 27.) MV Transportation is a California case in which Wachovia was similarly sued for negligent procurement of insurance for Omne. The court denied summary judgment based upon contradictory statements made by Cantrell and Sinins regarding the June 2002 meeting. 378 F. Supp. 2d at 1208 .
[2] Cantrell?s account of the June 2002 meeting is also contradicted by previous deposition testimony he provided in MV Transportation. In that case, Cantrell stated that he could not ?specifically recall? his conversations about Omne?s employee leasing practices and entities. (Lowenthal Decl. Ex. 3 (Cantrel Dep. 73:13).)
[3] The facts regarding Hood?s and Hoffman?s injuries do not appear in dispute for purpose of the present motions.
[4] Plaintiff argued at the motion to dismiss stage that the nature of his injuries ? money damages ? made the Affidavit of Merit Statute inapplicable because the statute only speaks to? personal injuries, wrongful death or property damage.? N.J.S.A. 2A:53A-27. However, the Court rejected Plaintiffs plain language argument, and Plaintiff has not raised it again on summary judgment. (See ECF No. 41 (8:17-9-4).)
[5] It is unnecessary? for the Court to decide whether the Sinins Declaration should be admitted into evidence for purposes of this summary judgment motion. Even if the Court were to strike the Sinins Declaration at this point, there still exists substantial discrepancies in the evidence, which require an expert.
[6] The Honorable Stanley R. Chesler, U.S.D.J. presided over Defendant?s motion to dismiss.
[7] See generally Hubbard, 168 N.J. at 394 .
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Thursday, June 28, 2012
Video: Giant Nexus Q robot stalks the halls of Google I/O
Last year it was an oversized Android-powered labyrinth, and this year the centerpiece of the Google I/O second-floor display was a giant robotic Google Nexus Q. Attached to a robot arm and adorned with glowing, rhythmic LEDs, the 'bot played music to attendees passing through I/O.
Announced yesterday, the Nexus Q is a miniature Android-powered computer and media center for your living room. It's due out in July, and I/O attendees were given preview units yesterday. We'll be bringing you more on Google's latest foray into home entertainment over the next day, but for now you can find footage of its oversized robotic cousin after the break.
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Wayne Besen: Why I'm Going to a Texas Vigil to Mourn a Lesbian Couple
The more victories the LGBT movement racks up, the more vicious our opponents become. When I look at the anti-gay extremism in 2012, I'm reminded of 1998's "Summer of Hate," which began with a national "ex-gay" advertising campaign, escalated with a flurry of anti-gay legislation in Congress, and ended with the horrifying death of University of Wyoming student Matthew Shepard.
"We didn't know who Matthew would be, but we could have certainly predicted that there would be some very, very tragic, violent deaths over the summer," former Human Rights Campaign Executive Director Elizabeth Birch told the Today show following Shepard's murder.
Following an eerily similar outpouring of raw hatred coming from politicians and the pulpit, two teenage girlfriends in a five-month relationship were shot in the head with a large-caliber handgun in Violet Andrews Park in Portland, Tex. this past weekend. Mollie Judith Olgin, 19, died in the attack, while Mary Christine Chapa, 18, was rushed to a hospital, where she is now listed in serious but stable condition.
Although it has all the hallmarks of a hate crime, we still don't know precisely what happened, and we should not prematurely jump to conclusions.
"There's no evidence to suggest that this crime was committed as a bias against the girls or their lifestyle," said Portland Police Chief Randy Wright (although a cop using the odious term "lifestyle" to describe their relationship hardly inspires confidence.)
Nonetheless, as Birch previously pointed out, we know that a heightened level of anti-gay vitriol inevitably leads to violence. When you have fanatical enemies dedicated to bullying, berating, and belittling, it can come as no surprise when their behavior eventually devolves into brutalizing and bashing.
As if on cue, the Texas Republican Party just released a repulsive platform that went out of its way to demonize the LGBT community:
We affirm that the practice of homosexuality tears at the fabric of society and contributes to the breakdown of the family unit. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country's founders, and shared by the majority of Texans.
It is folly to separate such vituperative voices from the violence that follows. A report published by the Southern Poverty Law Center in November 2010, analyzing FBI data from 1995 to 2008, found that LGBT people are 2.6 times more likely to be attacked than blacks, 4.4 times more likely than Muslims, 13.8 times more likely than Latinos, and 41.5 times more likely than whites.
The Anti-Violence Project (AVP) released their national report on hate violence for 2011. Nationwide, there were 30 killings of LGBT Americans due to hate, which is the highest yearly total ever recorded.
Could these awful numbers surprise anyone, considering the whackos are coming out of the woodwork? Exacerbating matters are the dangerously false and inflammatory claims by anti-gay organizations that Christians must choose between gay rights and religious liberty. For example, in a May 8 Family Research Council fundraising letter focusing on gays in the military, the group's president, Tony Perkins, wrote: "Enemies of Christianity, those who would silence the Gospel and eradicate our faith, are pushing hard, working fast. ... Forcing acceptance of open homosexuality in the military was only the beginning. Muzzling those who speak out against this policy goes hand in hand with it."
Bryan Fischer, a talk-radio host for the American Family Association and a major player in GOP politics, has a daily show that reaches 1 million listeners in 35 states. In one broadcast he told his audience, "Homosexuality gave us Adolf Hitler, and homosexuals in the military gave us the Brown Shirts, the Nazi war machine, and 6 million dead Jews."
Here are a few more chilling incidents that recently occurred:
- Indiana pastor Jeff Sangl and his congregation encouraged a 4-year-old to sing a song with the lyrics, "Ain't no homos gonna make it to heaven."
- Kansas pastor Curtis Knapp said in a radio address, "They [gay people] should be put to death. ... Oh, so you're saying we should go out and start killing them? No, I'm saying the government should."
- North Carolina pastor Charles L. Worley called for all LGBT people to be forced into camps with an electrified fence, where food would be dropped until they died off.
While such fiery rhetoric is good for raising money, I suspect it also raises body counts. I'm going to Texas on Friday to mourn the loss of a beautiful young girl at a vigil in the park where she and her girlfriend were shot. But I'm also hoping this tragedy wakes people up to the nightmares on the horizon that are sure to come if our foes don't halt their rancid and reactionary rhetoric.
?
Follow Wayne Besen on Twitter: www.twitter.com/Truthwinsout
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Wednesday, June 27, 2012
Disability Resource Fair June 29 at Magic Waters Waterpark | The ...
Staff Report
Rockford Park District will host the Seventh Annual Green Bear Disability Resource Fair from 4 to 9 p.m., Friday, June 29, at Magic Waters Waterpark, 7820 CherryVale Blvd. N, Cherry Valley, Ill.
The annual event provides the opportunity for families to explore resources and activities for more enjoyable living, explore the waterpark?s many accessible and disability friendly features, and visit with companies and organizations that support people with disabilities.
The event also provides parents concerned about their child?s development the opportunity to talk with professionals and other parents. More than 20 vendors will be on hand at the event, with information about community resources for families and individuals with disabilities. Some of the fair?s vendors will have information about family resources and early intervention.
A traditional cookie-decorating station, which will include sugar cookies as well as gluten-free sugar cookies, will also be included. All who plan to attend are encouraged to wear their swimsuits to have fun in the water.
Magic Waters will be open to all who purchase a ticket; admission is $7.50 per person in advance at Rockford Park District Customer Service locations (downtown Rockford, or at Carlson Ice Arena in Loves Park), or $12.99 per person at the event. Admission includes giveaways and entertainment, a Splash Pass for faster access to rides, as well as use of the park?s accessible features, such as water bean bag floating chairs and floating wheelchairs, in addition to the variety of attractions, thrill rides, amenities and food options at the waterpark.
Magic Waters staff, along with Rockford Park District Therapeutic Recreation staff, will be available throughout the park to assist with activities and helping individuals ride the tube slides who may need assistance up the stairs.
For more information, visit the Events page at www.magicwaterswaterpark.com or call (815) 987-1606 (for TTY only: 888-871-6171).
From the June 27-July 3, 2012, issue
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Unraveling the mysteries of exotic superconductors: Magnetism may be responsible for superconductivity in iron-based superconductors
ScienceDaily (June 25, 2012) ? In traditional electrical lines, a significant amount of energy is lost while the energy travels from its source to homes and businesses due to resistance. Superconductors, materials that when cooled have zero electric resistance, have the promise of someday increasing the efficiency of power distribution, but more must still be learned about superconductors before they can be widely used for that purpose.
Scientists at the U.S. Department of Energy's Ames Laboratory are using specialized techniques to help unravel the mysteries of a new type superconductor that was discovered in 2008. Ames Lab physicists were part of an international collaboration that also included scientists at Kyoto University in Japan, University of Illinois at Urbana-Champaign and University of Bristol in the United Kingdom to study the materials.
The group found that magnetism may be helping or even responsible for superconductivity in iron-based superconductors. The results were published in the June 22 issue of Science.
"The first step in designing superconductors for new technologies that will help save energy is better understanding of how superconductors work," says Ruslan Prozorov, who led the team at Ames Lab that also included Kiyul Cho and Makariy Tanatar.
Unfortunately, most conventional measurements of material parameters, such as resistivity, aren't useful in the state of superconductivity. But Prozorov several years ago helped developed a technique to measure how far the magnetic field penetrates into a superconductor. This length is called the London penetration depth, and it reveals basic information about a material, even in the superconducting state.
"London penetration depth is one of the few quantities we can measure in a superconducting state to learn more about what's going on, so the technique we specialize in here at Ames
Laboratory was particularly useful for this research project," said Prozorov, who is also an associate professor of physics and astronomy at Iowa State University. "In this collaboration, we studied a barium-iron-arsenic-phosphorus material at near zero Kelvin, and our London penetration depth measurements suggested that magnetism is responsible for superconductivity in iron-based superconductors. Typically, magnetism is detrimental to superconductivity, but when it is weakened enough, it might actually be helping."
The international team's research helps answer one of the central questions about how iron-based superconductors work.
"Iron-based superconductors may open the door to new energy technologies," said Prozorov. "But we'll only get there through materials science and understanding the mechanism of superconductivity in these new iron-based materials."
The research was funded by DOE's Office of Science.
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Story Source:
The above story is reprinted from materials provided by DOE/Ames Laboratory.
Note: Materials may be edited for content and length. For further information, please contact the source cited above.
Journal Reference:
- K. Hashimoto, K. Cho, T. Shibauchi, S. Kasahara, Y. Mizukami, R. Katsumata, Y. Tsuruhara, T. Terashima, H. Ikeda, M. A. Tanatar, H. Kitano, N. Salovich, R. W. Giannetta, P. Walmsley, A. Carrington, R. Prozorov, Y. Matsuda. A Sharp Peak of the Zero-Temperature Penetration Depth at Optimal Composition in BaFe2(As1-xPx)2. Science, 2012; 336 (6088): 1554 DOI: 10.1126/science.1219821
Note: If no author is given, the source is cited instead.
Disclaimer: Views expressed in this article do not necessarily reflect those of ScienceDaily or its staff.
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Tuesday, June 26, 2012
How Andrew Garfield Changed 'Spider-Man'
The British actor was instrumental in providing Peter Parker with a skateboard and some much-needed wit in the 'Amazing' reboot.
By Josh Wigler, with reporting by Josh Horowitz
Andrew Garfield in "Amazing Spider-Man"
Photo:
Among his many powers, Spider-Man has one "Amazing" gift that perhaps you don't already know about: He is a skilled skateboarder.
Andrew Garfield, the British actor filling out Peter Parker's shoes in director Marc Webb's "Amazing Spider-Man," brought many ideas to the superhero reboot's table, including his character's proficiency with a skateboard. Speaking with MTV News, Garfield said that "a lot changed" over the course of shooting "Spider-Man," including his very own idea to have Spidey wield a board at numerous points throughout the movie.
"It was my idea that this iteration of Peter would skateboard, maybe because I skateboarded when I was a kid, and it's something personal to me," the actor said at the "Amazing Spider-Man" press junket. "It linked in so nicely with being able to activate the powers in a new way."
Garfield teamed up with director Spike Jonze's Girl and Chocolate Skateboards and persuaded the powers that be to include scenes of Peter messing around with skateboards, adding some levity to an otherwise "heavy" script.
"What's always been important about Spider-Man to me is the lightness, the humor and the enjoyment of a teenage kid getting these powers. In reality, what would happen?" he said. "We pitched the idea to [the Spider-Man producers] and they shot it. I thought that was awesome."
Another scene that changed due to Garfield's input: the infamous carjacking sequence that sees Peter in full Spidey regalia for the first time, webbing up and taunting a criminal with lots of laughs and very little restraint.
"That was important to me, in terms of the humor, the wit, finding the power of anonymity," he said. "That was a fun night, because it was all improvised and free. There was nothing scripted about that. That was awesome."
Overall, Garfield found the entirety of "Spider-Man" to be "a forever evolving process," thanks in large to Webb's place at the head of the film.
"It was all changing," said the actor. "Marc set up an environment where we could play, and that was really, really nice."
Check out everything we've got on "The Amazing Spider-Man."
For breaking news and previews of the latest comic book movies — updated around the clock — visit SplashPage.MTV.com.
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How To Make Money Using The Internet ? Tips That Beginners ...
June 25th, 2012 Tags: Building Relationships, Building Trust, Business Idea, Business Tools, Earn Money, Earning Money, How To Make Money, How To Make Money Using The Internet, Internet marketing, Internet Tips, Making Money, Marketing Methods, Money Internet, Money Online, Money Tips, Moving, Need Money, Successful Business, Web Building, Website Traffic
Posted in Uncategorized How to make money using the internet has been asked for years now by a lot of people. There are a few effective tips that all beginners need to utilize in order to successfully earn an income online.
Not using these tips is going to have you struggling to earn one dime, but using the following tips from the very start will have you earning money in no time.
1. Be selective about how you earn money ? It is very essential before you even begin your business that you are selective about the way you utilize for earning money. You don?t just want to choose the first idea that you can find online.
It has to be a business idea that is perfect for you so that it is something you will enjoy building each day. The more you like the business you begin the easier your climb to success will become.
2. Learn all you can about building a business on the web ? After you have selected the way you will use for making money, the next step is to learn about the business you started. After you know about the business you will be able to easily advertise it to others.
You also need to learn the information about internet marketing methods to utilize for building traffic to the business. Along with many other things that with time will be utilized for building a successful business such as, business tools, building relationships on the web, building trust, list building and many other topics.
The key is to start with one topic and learn all you can about it before moving on to another topic. This way you will gain the knowledge you require without overwhelming yourself.
3. Advertise to attract visitors ? The one thing that you have to attract to your website in order to make money online is visitors. You can use many internet marketing methods to build a stream of traffic to your website.
Just be sure you advertise your business every day using at least one marketing method so that you can really increase your website traffic for your business over time.
If you become a smart home business owner that uses these tips from the very beginning then you will easily make money on the web. It is now up to you to get your own business going, just keep in mind this information you found out about how to make money using the internet and before you know it you will be on your way to becoming a successful internet business owner.
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Meizu MX 4-core and Flyme OS 1.0 formally announced, available on June 30th
Forget that "MX Quad-core" moniker, because Meizu's just formally introduced its first quad core Android phone as the "MX 4-core" in Hong Kong, an event jam-packed with balloons and local celebrities (we really should've brought our sunglasses). For those who care, this is the first time ever for Meizu to collaborate with a carrier -- that being Hong Kong's PCCW, who's offering the HK$3,099 (US$400) 32GB model for free on various tariffs, while details are light on the HK$4,099 (US$530) 64GB version. Once the stage cleared we had a chance to take a closer look at the international variant of the MX 4-core. Aside from the disappearance of the Chinese logo above the screen plus the duller logo on the back (but accompanied by an extra capacity label), the 4-inch HSPA+ phone looks identical to its dual-core sibling. Additionally, Hong Kong and mainland China customers who pre-order between now and the launch on June 30th will get to pick a colored back crystal shell for free, including ivory white, milky lime, lilac purple and misty pink to replace the original white.
Software-wise Flyme -- Meizu's heavily customized Ice Cream Sandwich -- is also very similar to its Gingerbread predecessor, except for its slicker responsiveness (especially the camera app) and the odd interface tweaks here and there. There are also a few new features that are worth a mention: on top of the new native stopwatch, countdown timer and multi-segmented timed task lists, there's Flyme Voicemail which is essentially a native recorder for incoming calls that you reject (think of it as a neat alternative to conventional visual voicemail), and there's Flyme Message which is Meizu's take on SIP services like Whatsapp and Line. We shall dig deeper in our full review, but for now, you can check out a quick hands-on video after the break. And for those who still possess Meizu's older Android phones, we were told to expect Flyme to be delivered over the air in early July (as opposed to the original June date), so keep an eye out for that little update icon.
Update: We mentioned in our video that the China version of the MX 4-core doesn't come with the Play Store, but it turns out that we were mistaken. Hooray!
Update 2: By the way, it's pronounced "fly-me."
Continue reading Meizu MX 4-core and Flyme OS 1.0 formally announced, available on June 30th
Meizu MX 4-core and Flyme OS 1.0 formally announced, available on June 30th originally appeared on Engadget on Mon, 25 Jun 2012 09:09:00 EDT. Please see our terms for use of feeds.
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Psychology Teacher Needed to Teach a Levels (Surrey) - Surrey ...
Impact Teachers has a fantastic vacancy for Psychology teacher in a Secondary school.
The post is to start in Sept and should be full time until the end of the school year. You will be teaching Psychology to A level pupils.
It is a smaller than average comprehensive school serving the town and local surrounding area. Students come from a wide range of social and economic backgrounds. Ofsted described it as a school with "good features, providing a caring environment and a sound education for its students."Students like coming to school and appreciate its caring ethos. Staff and students enjoy mutually respectful relationships with each other.
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Monday, June 25, 2012
We Evolved To Eat Meat, But How Much Is Too Much?
Enlarge Allison Aubrey/NPR Paleo diet promoter John Durant digs into some ribs.
Allison Aubrey/NPRPaleo diet promoter John Durant digs into some ribs.
You won't catch John Durant in a tie. Shoes are optional, too. He has traded cubicle life for something a little wild: Promoting the diet and lifestyle of our ancestors from the paleolithic era. He's blogging and writing a book about his approach.
"For millions of years, we didn't have an obesity problem because we ate foods that our metabolism was adapted to," Durant says ? foods such as root vegetables, tubers, fish and, of course, red meat.
"We were active and lived a healthy lifestyle," he says. Durant is one of many folks following the popular meat-laden paleo diet. He packs his freezer with deer meat and has found lots of places near his home in Manhattan to buy marrow bones and organ meats, as well as paleo-friendly barbecue joints for a meal out.
But modern medicine tells us that too much meat is bad for us, so what's a consumer to do?
?During a workout at a CrossFit gym, a gathering spot for lots of paleo-enthusiasts, Durant told me it's no longer a challenge for him to avoid the onslaught of bagels and pizza at every street corner. The paleo approach is to eliminate grains and processed food, which are relatively new to the human diet. And, as a result, Durant says, he no longer gets the spikes and dips in his moods, and he feels better.
Now, everyone from the American Cancer Society to the American Heart Association and popular food writers such as Mark Bittman tells us to eat less red meat.
But Durant says it's a meat-based diet that was fundamental to early human development. (Check out our tongue-in-cheek Time Traveler's Cookbook: Meat Lover's Edition for more on this.)
My colleague Chris Joyce has reported on how a meat-based diet helped make us smarter.
And paleoanthropologist John Hawks at the University of Wisonsin, Madison, agrees: "We definitely evolved to eat meat."
"When we look at the fossils of early Homo [sapien], we see this immediate increase in the size of the body and also increase in the size of the brain," Hawks explains.
But that was then. Very few cavemen lived long enough to get heart disease or cancer. These are the reasons we're told to limit red meat consumption now.
"It really began in a big way in the Framingham study in the 1950s," says Michael Thun, an epidemiologist with the American Cancer Society.
"It [the study] found a relationship between total cholesterol and heart disease," Thun says. Over the years, there has been debate about whether high cholesterol is a cause or simply a marker of higher heart disease risks. But studies like this one helped raise the red flag about high-cholesterol foods, such as red meat.
Then, the evidence started mounting that people who ate daily servings of red meat increased their risks of developing certain cancers. For colon cancer, studies show that people who eat the most have about double the risk compared with people who eat the least red meat.
"That's been found in lots of studies," says Thun, "so it's pretty well-accepted."
Paleo enthusiast John Durant says he has thought about these studies and has heard the health experts, but he's not worried. He says lots of the people in these big epidemiological studies are sedentary and overweight.
He may be eating more red meat than the experts recommend, but he believes his paleo lifestyle, which includes running barefoot in Central Park, helps keep him thin, active and healthy. And he's not alone ? the movement is attracting some medical professionals.
Because there are no studies of people who've been following the paleo diet, Thun says, it's hard to evaluate. "There's just not been enough people eating one kind of paleolithic diet to tell."
As for the rest of us who want to know how much red meat is too much, the best evidence suggests that cutting back to two to three servings a week is a good guide.
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Sunday, June 24, 2012
Rep Rohrabacher to DOS and DOD June 13 2012
Written by Rep Rohrabacher
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Judge dismisses Apple vs. Motorola in its entirety, companies unable to prove damages
After tentatively shutting down (and reviving) Apple and Motorola's legal spat, Judge Richard Posner has put the lid on the case once again, dismissing the case in its entirety this evening. Neither company was able to respond to the Judge's call for proof of damages, causing him to dismiss the case and block both firms from refiling claims. "It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff to refile the suit so that he could have a second chance to prove damages. This case is therefore dismissed with prejudice; a separate order to that effect is being entered today." Posner's prejudice dismissal means that Apple and Motorola will have to find something new to fight about -- the case's patent disputes are off the table, for good.
Developing...
Judge dismisses Apple vs. Motorola in its entirety, companies unable to prove damages originally appeared on Engadget on Fri, 22 Jun 2012 20:58:00 EDT. Please see our terms for use of feeds.
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President Obama Explains Immigration Shift At NALEO
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