9/25/2015

Around the Nation: September 2015

State news and updates from CLM chapters, reps, and committees.

By Bevrlee J. Lips

CALIFORNIA: Defending Wrongful Eviction Lawsuits with an Anti-Slapp Motion

California Code of Civil Procedure 425.6 is commonly referred to as the anti-SLAPP statute. It is designed to protect free speech and permits a defendant to file a motion to strike any cause of action that chills his right to free speech. In Action Apartment Association v. City of Santa Monica, the court stated that a landlord’s filing of an unlawful detainer lawsuit or service of a notice to terminate tenancy was protected free speech activity. This ruling enabled a landlord to file an anti-SLAPP motion against a tenant’s lawsuit for wrongful eviction in response to a notice to terminate tenancy or an unlawful detainer lawsuit. Many landlords successfully availed themselves of the holding. However, courts have increasingly distinguished Action Apartment Association in such a way that has resulted in many tenants having the ability to maintain their wrongful eviction lawsuits after the termination of tenancy by carefully framing their complaint to address unprivileged activity, such as the “decision” to terminate the lease and not the act of terminating the lease. Defense counsel must carefully assess the complaint to determine whether its allegations are premised upon the decision to terminate the lease (unprotected speech) or the act of terminating the lease (protected speech). This is an important decision because the prevailing party in an anti-SLAPP motion is entitled to attorney fees.—From Orange County Chapter Member Robert A. von Esch

MICHIGAN: Telecommuting, Reasonable Accommodation, and the ADA

In EEOC v. Ford Motor Co., an employee of Ford Motor Company with a record of poor performance and high absenteeism requested up to four days of telecommuting each week because of a health condition. Ford denied the request after three attempts to provide telecommuting for the employee failed. The EEOC sued Ford under the ADA for failure to provide reasonable accommodation. The U.S. Court of Appeals for the 6th Circuit, sitting en banc, reversed a grant of summary judgment and ruled in favor of Ford. The court held that regular and predictable on-site attendance was an essential function of the plaintiff’s job. Quoting from another opinion (EEOC v. Yellow Freight Sys. Inc.), the court noted the general rule applying to most jobs: “[A]n employee who does not come to work cannot perform any of his job functions, essential or otherwise.”—From CLM Member John Butler

NEVADA: Insurers No Longer Must Disclose Policy Limits

The Nevada Legislature passed SB 162, which relates to personal injury claims. Under the existing law, NRS 690B.042 allows plaintiffs injured in motor vehicle accidents to obtain insurance policy limits from a third-party insurer upon the production of medical bills from a health care provider. Previously, an attorney could acquire the policy limits from an insurer by requesting them in writing and attaching medical bills from his client’s recent treatment. The insurance company did not have a choice; the law obligated the insurance company to provide the insurance limits upon receipt of the request and medical bills. Now that the legislature has repealed NRS 690B.042 with the passing of SB 162, a third-party insurance claims professional handling a plaintiff’s claim has no obligation to disclose the policy limits of its insured’s policy.—From CLM Region Nine Co-Chair Alonzo Johnson

NEW YORK: State Liable for Vehicle Accident Due to Foliage

In Rugar v. State of New York, Kimberly DiNonno drove her car through a stop sign and was struck by a Dodge Durango driven by Dennis Rugar. DiNonno and her two passengers were killed, and the occupants of the other vehicle were seriously injured. The court found that the state breached a duty owed to the traveling public by failing to adequately maintain signs and foliage along the roadway. The primary driver was apportioned 55 percent of the liability, and the state was found 45 percent negligent.—From Past New York State Chair Howard S. Shafer

OREGON: Common Law Indemnity Question

The Oregon Supreme Court issued an opinion in Eclectic Investment LLC v. Patterson, which held that common law indemnity no longer exists between joint tortfeasors in light of Oregon’s comparative fault statute. The court stated that common law indemnity was developed before the comparative fault statute was enacted and contradicts its framework. This opinion represents a potentially significant change in cases involving multiple tortfeasors. It potentially takes away a passively at-fault defendant’s ability to argue that the actively at-fault defendant ought to pay the whole claim.—From CLM Member Jack Levy

TENNESSEE: Court Weighs Whether Arson Is Vandalism

If an arson fire burns down a house that has been vacant for more than 30 days, does the insurance policy exclusion for vandalism and malicious mischief apply? In an issue of first impression, the Tennessee Court of Appeals held “no,” and the insured prevailed. Southern Trust Insurance Co. v. Phillips contains a good discussion of the law in this area from across the country, citing cases on both sides of the issue.—From CLM Member Ned Bab

WASHINGTON, D.C.: OSHA Update on Amputation Risk

Your client or insured should anticipate an inspection if their industry code has been identified as part of OSHA’s National Emphasis Program on Amputations, which was updated Aug. 13, 2015. According to the update, 2,000 workers suffered an amputation in 2013. The rate of amputation in the manufacturing sector was more than twice that of private industry. The program will focus on worksites in 80 industries where amputations have been prevalent, including bakeries, forging and manufacturing sectors, and motor vehicle body parts manufacturing. Inspections will occur in these industries with a focus on the machinery and equipment that cause amputations. OSHA administrator David Michaels said in a press release that the directive “will help ensure that employers identify and eliminate serious workplace hazards and provide safe workplaces for all workers.” The program provides an exception for companies that participate in a voluntary protection program.—From CLM Member James C. Wright



Bevrlee J. Lips was managing editor of Claims Management magazine (now CLM Magazine) from January 2012 until March 2017.

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