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Tag Archives: Damages

Contract – Statute of Frauds – Lease – Damages – Due Dates & Cure Provision (access required)

Plasma Centers of America, LLC v. Talecris Plasma Resources, Inc. The parties’ contract plainly states that no rights and duties were created other than those expressly stated in the contract. Nothing in the contract explicitly – or even implicitly – states that plaintiff will assign its leases to defendant. Therefore, the trial court correctly concluded that oral modification of the parties’ contract was not barred by the statute of frauds.

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Insurance – Commercial Marine Liability – Duty to Defend & Indemnify – Civil Practice – Pleadings Amendment – Underlying Lawsuit – Damages (access required)

National Union Fire Insurance Co. of Pittsburgh, Pa. v. Intercoastal Diving, Inc. Even though the complaint in the underlying lawsuit against the defendant-contractor only alleges damages to the bulkhead built by the contractor, the contractor recently filed affidavits indicating that the plaintiffs in the underlying lawsuit are also seeking damages for plumbing pipes and floating docks that were damaged by the failure of the bulkhead.

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Attorneys – Tort/Negligence – Legal Malpractice – Standard of Care – Bankruptcy – Damages (access required)

Miller v. Orcutt The standard of care for a bankruptcy attorney is the same in the Western District of North Carolina as it is in the Eastern District of North Carolina; therefore, the plaintiff-clients could present the testimony of a bankruptcy attorney from the Western District to establish the standard of care in a legal malpractice case against a bankruptcy attorney in the Eastern District.

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Labor & Employment – Public Employees — Settlement Agreement – Breach of Contract Claim – Damages – Job Reclassification (access required)

Pickney v. Department of Transportation Even though the parties’ settlement agreement provided that plaintiff could “request a job reallocation or pay grade increase” and that defendant would “cooperate with such a request,” the settlement agreement did not provide plaintiff with any guarantee that he would actually receive a job reallocation or pay grade increase upon request. Even if plaintiff proved that defendant breached the settlement agreement by failing to cooperate with his request for a second job reallocation, plaintiff’s evidence provided no basis upon which the trial court could have properly calculated damages.

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Tort/Negligence – Wrongful Death – Products Liability – TASER – Contributory Negligence Unavailable – Damages (access required)

Fontenot v. TASER International, Inc. (Lawyers Weekly No. 12-04-0464, 35 pp.) (Robert J. Conrad Jr., Ch.J.) 3:10-cv-125;W.D.N.C. Holding: Where plaintiff’s decedent never “used” the taser that killed him, the defendant-manufacturer was not entitled to a defense of contributory negligence. Defendant’s motions for judgment notwithstanding the verdict and a new trial are denied. Defendant’s motion for remittitur is granted.

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Contract – Breach – Damages – Interior Design – Change Orders (access required)

Diane K. Troum, Inc. v. Amini Innovation Corp. The parties’ original showroom design contract required defendant to pay plaintiff $20,000 plus purchases, administrative costs and “hours in excess of ten [to be] billed at $15.00 or $20.00 per hour for a cap of $1,000.00. Variance in rate depends on skill level of personnel.” After defendant requested additional design services, the contract’s base cost was raised to $25,000. Where plaintiff billed defendant $25,000 as its design fee plus $6,302.50 for additional labor, and where defendant paid plaintiff only $20,000, a jury could find an express contract and award plaintiff $11,302.50. Defendant has failed to show that the jury award included recovery in quantum meruit.

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Tort/Negligence – Conversion – Damages – Unfair Trade Practices – Branch Office Takeover (access required)

Knight’s Medical Corp. v. Pickett A brother hired his sister to start up a branch office – intended to be a franchise, eventually – of his durable medical equipment business. Years later, the brother fired the sister; despite a non-compete agreement, the sister started running her own durable medical equipment business from the branch office location. The brother’s evidence of what it cost to set up and run the branch office supported the trial court’s award of damages for the sister’s conversion of the branch office.

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Contract – Inter-Corporate Liability Doctrine – Car Dealership & Finance Company – Damages – Unfair Trade Practices – Treble Damages – Prejudgment Interest – Attorney’s Fees (access required)

Hanes v. Darar Where (1) defendant Darar was the owner and president of both corporate defendants; (2) both businesses shared officers, agents, business locations and phone numbers; and (3) the two corporations had a “complimentary” nature (a used car dealership and the company that financed customers’ purchases of the dealership’s cars), the trial court could apply the inter-corporate liability doctrine from W.G. Fountain v. West Lumber Company, 161 NC 35, 76 S.E.2d 533 (1912).

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Tort/Negligence – STCA – Damages – Companion Dog – Veterinary Expenses & Replacement Cost (access required)

Shera v. N.C. State University Veterinary Teaching Hospital Plaintiffs brought their Jack Russell terrier to defendant for treatment, and defendant’s negligence led to the dog’s death. Following the law of this state, the Industrial Commission correctly limited plaintiffs’ damages to the cost of the ill-fated veterinary treatment and the cost to buy another Jack Russell.

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