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Lloyd's Maritime and Commercial Law Quarterly


Mark Gergen*


US courts continue to proceed on three different tracks in handling restitution claims. One track has a general claim for unjust enrichment. In its simplest form the claim has two factual elements—the plaintiff suffers a loss that is connected to the defendant’s benefit—and a normative element in the form of a conclusion that it would be unjust or unconscionable for the defendant to retain the benefit without paying for it. Illustrative cases from the period covered include: Kenworth Sales Co v Skinner Trucking Inc (§14) (relying on the officious intermeddler rule to hold retention would not be unjust); Qwest Communications Corp v Free Conferencing Corp (§20) (treating normative issue as committed to discretion of trial court); and Mealy v Prins (§16) (defining some factors as irrelevant and demanding that the trial court explain its reasoning on the normative issue). On a second track, much of the work of the law of restitution is done applying doctrines rooted in old concepts such as quantum meruit or quasi contract. Tikalsky v Friedman (§23) is illustrative. The court holds that a constructive trust is a remedy and not a cause of action and so dismisses a claim where the plaintiff sought a constructive trust without pleading a cause of action against the defendant. On the third track, courts follow the Restatements (American Law Institute, Restatement of Restitution (1937); Restatement of the Law, Third, Restitution and Unjust Enrichment (R3RUE) (2011). In Knightbrook Insurance Co v Payless Car Rental Systems Inc (§15) the court chooses to follow the Third Restatement rather than the First Restatement in resolving an equitable indemnity claim. Several cases in 2020 explore the history or underlying principles of the law of restitution at length. Often this is to resolve a peripheral issue. In Texas Advanced Optoelectronic Solutions Inc v Renasas Electronics America Inc (§22) the issue was whether the plaintiff was entitled to have the jury determine disgorgement damages. In Wadsworth v Talmage (§26) the issue was whether tax liens could attach to assets the taxpayer held subject to a constructive trust. In Wright v Genesee County (§27) the issue was whether an unjust enrichment claim was a tort claim under the sovereign immunity act.


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