Around the Nation: February 2014
State news and updates from CLM state chairs, reps, and committees.
Objections Must Be Specific to Prevail
In Quick Collect Inc. v. Higgins, the plaintiff, a debt collection company, challenged the trial court’s denial of objections to an arbitrator’s award of attorney’s fees to the defendant. The Oregon Court of Appeals held, stating that a party fails to preserve arguments against an award of attorney’s fees when objections lack the necessary level of specificity. Objections must state particular reasons, even though the underlying premises of all objections may be the same. Additionally, work performed prior to a filing is recoverable if that work was reasonably related to prevailing on a claim.—From Oregon State Chapter Co-Chair Jack Levy
Chemical Leak Leaves 300,000 Without Water
More than 300,000 residents in nine West Virginia counties were placed under a “do not use” order after 7,500 gallons of 4-methylcyclohexane methanol, or MCHM, leaked out of a storage facility on the Elk River just above a drinking water plant. The licorice-scented chemical, typically used to clean coal, allegedly got into the water supply through a one-inch hole in the underground wall of a storage tank owned by Freedom Industries, which supplies products for the coal-mining industry. It is believed the chemical moved through the soil into the river, fouling the water and leaving residents scrambling for bottled water with which to wash, brush their teeth, and cook as well as watching for symptoms of exposure, such as nausea, vomiting, wheezing, and skin irritation. Toilet flushing was the only water use allowed for several days.
More than 20 lawsuits have been filed, and a Charleston judge ordered Freedom Industries to preserve all relevant documents and physical evidence.—From West Virginia State Chapter Lead Chair Edgar Poe
The Pink Underwear Challenge
A federal appeals court has declined to hear Maricopa County Sheriff Joe Arpaio’s appeal of a ruling that was critical of his office’s decision to force a mentally ill inmate to wear pink underwear. The ruling stated that outfitting inmates in pink seemed to be punishment without legal justification, and that it’s fair to infer the selection of pink as the underwear color was meant to represent the loss of prisoners’ masculinity.
Early in his 20-year term as sheriff, Arpaio received strong public support for dressing inmates in old-time striped jail uniforms, requiring them to wear pink underwear, and housing them in canvas tents. His office won the case at trial in 2010, but the refusal by the Ninth U.S. Circuit Court of Appeals means Arpaio has all but exhausted his appeals in the case. His attorneys had hoped the nation’s highest court would examine whether having pink boxers as part of the standard jail uniform constitutes punishment before a trial was held. However, the U.S. Supreme Court declined to hear an appeal in March 2013. The estate of the inmate has filed suit for a new trial.—From Arizona State Chapter Lead Chair Bill Nebeker
Timely Executed Settlement Releases Required
Amendments to the Illinois Code of Civil Procedure (735 ILCS 5/2-2301) went into effect on the first of the year and call for strict time limitations on certain defendants when finalizing settlements involving personal injury, property damage, wrongful death, and tort claims for money damages. Defendants now have 14 days to tender a release upon written confirmation of settlement, and 30 days to issue the settlement draft. Failure to comply with the new provisions may result in judgment against the defendant for the full amount of the settlement plus costs and interest. The act outlines a process for accommodating liens and other subrogation interests, and parties may agree to opt out of the act in writing.—From Illinois State Chapter Member Jennifer B. Santoro
Amendment Negates WC Lien Against UIM Policy
In Simendinger v. Nat’l Union Fire Ins. Co., the Delaware Supreme Court held that a workers’ compensation carrier may not assert a lien for benefits paid against an employer-paid underinsured motorist (UIM) policy. This case involved two employees who were killed in a vehicle covered by an employer-paid UIM policy. The workers’ compensation carrier asserted a lien against the policy payout. But the UIM policy specifically excluded the direct or indirect benefit of any insurer or self-insurer under a workers’ compensation claim. The trial court enforced the lien based upon the statutory right in 19 Del. C. §2363(e). However, the Delaware Supreme Court reversed and held that a 1993 amendment to the Delaware Workers’ Compensation Statute §2363(e) eliminated the ability of a carrier to assert a lien against an employee’s recovery pursuant to an employer’s UIM coverage.—From Delaware State Lead Chair Paul Bradley
Captive Insurance Law
The North Carolina Captive Insurance Act became effective in October 2013 and allows for the formation of captive insurance companies. The controlling statute, N.C. General Statute 58-10-340, allows for pure captives, association captives, industrial insured captives, branch captives, protected cell/incorporated cell captives, risk retention groups, and special purpose financial captives. Currently, there are more than 5,000 captive insurance companies in the world, and more than 30 states in the U.S. have enacted legislation related to the licensing and regulation of captives, according to the North Carolina Department of Insurance, which recently began issuing the first captive insurance licenses. More information can be found at nccaptives.com.—From North Carolina State Chapter Co-Chair Jamie Flynn
Proving Lead Paint Poisoning
The Maryland Court of Special Appeals denied certiorari in Taylor v. Fishkind. In the case, the appellant, through her mother, sought damages for injuries she sustained due to claimed exposure to lead paint while living at two different residences. Over the course of the plaintiff’s residence at three homes, including two involved in the case, her blood was tested sporadically for the presence of lead and showed varying levels of increase and decline. However, the circuit court found that the evidence in the case “did not come close to the kind of circumstantial evidence required to proceed to trial,” and relied on statements from the expert witness as to what she “could and could not determine from the facts before her.” The opinion clarifies prior case law concerning the use of circumstantial evidence to prove negligence in a lead paint poisoning case.—From Maryland State Chapter Co-Chair Susan Smith