Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Tort Law

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

No Wonder People Do Not Like Insurance Agents

insurance-management

By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Ohio National Life Assurance Corp. v. Douglas W. Davis, et al. came before the Seventh Circuit on appeal from a summary judgement decision at the trial court. Mavash Morady (Morady), a defendant in this case, was a contracted insurance agent with Ohio National Life Assurance Corp. (Ohio National). Douglas Davis (Davis), another defendant in this case, was working with Morady to defraud Ohio National by using an investment strategy known as Stranger-Owned Life Insurance (STOLI).

Davis and Morady devised a scheme where they chose people that were older because they believed that they would be prime candidates for their scheme. It would begin by Davis approaching an individual, and then asking them to take out a life insurance policy. These people would receive a compensation from Davis for taking out a life insurance policy.

Morady, being the life insurance agent, would meet with the chosen people and have them fill out all of the forms to apply for life insurance. Morady would then fraudulently alter the documents to make these potential clients look like they are younger, and healthier, than they actually were. Ohio National would confirm that these prospective clients were actually people, but they did not check further into any of the clients to ensure the paperwork was completely accurate.

Davis and Morady then would contact the clients about a month after the life insurance went into force. The two then would have the clients sign the policy over to a irrevocable trust that was managed by a company that Morady’s husband owned. The life insurance policy then was owned by the company, and the beneficiary was also the company. The clients never paid any of the premiums because the company paid the premiums for them. The company then would sell the life insurance polices to investors. By doing this, Morady was violating her employment contract with Ohio National because the employment contract does not allow for an agent to sell policies that will be involved in a scheme where a third party will pay the premium, and will thus benefit from the death of the insured.

Once Ohio National found about the scheme Davis and Morady had been carrying out, they voided out all the policies that were involved. Ohio National then filed a complaint against Davis, Morady, Morady’s husband, and other investors. The two sides filed briefs that had a common fact pattern, which means that there was no dispute to the events and how they happened. Ohio National filed a motion for summary judgement, which the court granted in their favor. The court gave Ohio National everything they asked for with the exception for the judgment against Steven Egbert (Egbert). The court reasoned that Egbert was an innocent bystander in the scheme when he made an investment into a life insurance policy, and could not have known the policy was created through fraudulent acts.

The Seventh Circuit decided that summary judgement in favor of Ohio National was correct and the damages awarded were reasonable because Davis and Morady were found to have committed a tort of civil conspiracy.

Watch Your Step: Lack of Maintenance on Dangerous, Defective Sidewalks is Justifiable

Untitled

By Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016

The Illinois Supreme Court held late last week in Bruns v. the City of Centralia that the City of Centralia (City) was not responsible for “open and obvious” defects in sidewalks within city limits in response to a negligence claim.

Just days before her eightieth birthday, Virginia Bruns was injured when she stumbled while walking in to an eye clinic for an appointment. Bruns fell because the sidewalk had been cracked by the tree roots of a 100-year old historic tree that was nearby.

A clinic employee notified the City in 2009 of the developing defect in the sidewalk by a clinic employee, and even offered to pay for the tree’s removal. However, the City failed to take the actions that could have prevented Brun’s fall because of the tree’s supposed historical significance.

As Bruns approached the clinic, she was looking towards the entrance and steps, and failing to notice the poorly maintained sidewalk. Bruns stated that she had “definitely” noticed the uneven sidewalk on her previous nine visits to the clinic, but on this occasion was simply looking towards the door as she approached for her appointment. As she was walking towards the entrance, she stubbed her toe on the uneven pavement and fell, injuring her arm, leg, and knee.

Bruns alleged in her resulting complaint that the City “negligently maintained the sidewalk, failed to inspect and repair the sidewalk, and permitted the sidewalk to remain in a dangerous condition.” Her act of looking at the entrance to the building she was entering was, according to her counsel, a reasonable act that any reasonable person could have also performed.

In response, the City claimed the issue at hand was less about the type of defect that occurred, and was instead centered on the clear matter of law that showed the defect to be “open and obvious.” The City further provided that the maintenance of such an open and obvious defect was not the City’s responsibility. The Trial Court granted the City summary judgment on this theory.

In response, Bruns claimed that just because a defect is “open and obvious”, does not mean that the city shouldn’t have reasonably foreseen that an individual walking up to the clinic might become distracted and would exercise the requisite care as a result. The Appellate Court agreed with her. It stated that“[i]t is certainly reasonable to foresee that an elderly patron of an eye clinic might have his or her attention focused on the pathway forward to the door and steps of the clinic as opposed to the path immediately underfoot.”

However, the Appellate Court could not determine whether the City had failed to meet its burden to fix the defect within a reasonable amount of time, and it remanded the case for further proceedings.

The Supreme Court in turn held that the defect was “open and obvious” in a manner that should have caught the attention of individuals using the sidewalk. It further stated that the City cannot be held responsible for maintaining the miles and miles of sidewalk within the City limits.

Although the Supreme Court’s concern that it would be difficult for the City to maintain so many miles of sidewalk is accurate, this particular section of sidewalk had been complained about in the past and should have been acknowledged as a legitimate danger to the patrons of the eye clinic.

The decision of the Illinois Supreme Court to allow the City to continue to ignore this problem, in part because of the historical significance of the tree in question, seems as though it puts an unnecessary burden on individuals who would use that section of the sidewalk, particularly those who would use the sidewalk to enter the clinic. Unfortunately, individuals such as Virginia Bruns will have to continue to face the hazard of falling on uneven pavement within the city limits of Centralia.

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