8/28/2019

CLM National: August 2019

News and verdicts that affect you from across the country

By Phil Gusman

Michigan’s governor signs a bill that brings significant reforms to the state’s no-fault statute, a California judge reduces a massive jury verdict against Monsanto, and Hurricane Barry losses in Louisiana are not expected to top $900 million.

Michigan

Big Changes to No-Fault Statute

Gov. Gretchen Whitmer signed into law an update to the 1973 no-fault statute, dramatically changing the no-fault auto insurance system by allowing drivers to choose their level of personal injury protection (PIP) coverage, among other things. Previously, drivers were required to purchase unlimited PIP coverage, which guarantees insurance companies will cover all medical costs associated with car accident injuries for life, regardless of who is responsible for the accident. Under the new law, drivers can choose between five tiers of PIP coverage—ranging from opting out of PIP coverage entirely to unlimited PIP coverage—and insurance companies are required to lower PIP rates depending on the level of coverage. The plan also bars insurers from setting auto insurance rates based on several “non-driving” factors: gender, marital status, home ownership, educational level, occupation, credit score, or zip code. Insurers may still use “insurance scores” based in part on credit information.—From CLM Member Christine M. Logan

California

$2B Roundup Verdict Slashed to $86.7 Million

Judge Winifred Smith, in the Alameda County Superior Court, has reduced a $2 billion jury verdict against Monsanto to $86.7 million. The case, Pilliod v. Monsanto, is one of many across the country concerning Monsanto’s glyphosate-based weedkiller Roundup. Alva and Alberta Pilliod claimed their use of the product over decades resulted in their development of non-Hodgkin’s lymphoma. Alva and Alberta Pilliod were awarded over $18 million and over $37 million, respectively, in compensatory damages, and $1 billion each in punitive damages. Judge Smith reduced the total amounts to $30.7 million for Alva Pilliod and $56 million for Alberta Pilliod. The judge determined the jury award was both excessive and unconstitutional. However, when considering punitive damages, Judge Smith did determine there was “clear and convincing evidence that Monsanto made efforts to impede, discourage, or distort scientific inquiry and the resulting science.” According to Reuters, Bayer, which owns Monsanto, plans to appeal.—From Managing Editor Phil Gusman

Louisiana

Hurricane Barry Losses Should Not Exceed $900 Million

Insured losses from Hurricane Barry are not expected to exceed $900 million, according to catastrophe modelers. CoreLogic’s estimate is between $500 million and $900 million, and includes wind and flood losses. CoreLogic says wind losses are estimated at between $300 million and $500 million. Flood losses for residential and commercial properties are estimated at between $200 million and $400 million, while insured flood losses covered by private insurers are estimated at less than $100 million. Modeler RMS, meanwhile, estimates insured losses—including wind, storm surge, and inland flooding covered by both private insurers and the National Flood Insurance Program—at less than $500 million. The storm made landfall as a Category 1 hurricane near Intercoastal City, Louisiana, on July 13.—From Managing Editor Phil Gusman

Kentucky

Amount of Reserve Is Not Admission of Liability or Damages

The Kentucky Court of Appeals on June 21 decided the case of Messer v. Universal Underwriters Insurance Co., in which the court reiterated that the Unfair Claims Settlement Practices Act requires a prompt, fair, and equitable settlement where the insured’s liability has become reasonably clear. The court also followed Hollaway v. Direct Gen. Ins. Co., which held an insurer’s change in position as a result of new information or evidence is not bad faith. However, the most important aspect of this case to Kentucky law is the court’s ruling on evidence of reserves in a bad-faith case. The court determined that while the insurer’s method of setting reserves may be relevant, the amount of the reserve is not an admission of liability or damages.—From CLM Member Patricia J. Trombetta

Ohio

Federal Court Reaffirms Ohio’s Reasonable Justification Standard

In Shah v. Metropolitan Life Ins. Co., the Southern District of Ohio recently reaffirmed the Ohio Supreme Court’s landmark 1994 decision in Zoppo v. Homestead Ins. Co., which established the standard for a bad-faith claim against an insurer. To survive a motion for summary judgment on a bad-faith claim against an insurer in Ohio, an insured must put forth evidence tending to show that the insurer had no reasonable justification for refusing the claim, and the insurer either had actual knowledge of that fact or intentionally failed to determine whether there was any reasonable justification for refusing the claim. The decision is significant in an era where declined claimants routinely tack on bad-faith allegations to seek punitive damages in their coverage suits against insurers.—From Northeast Ohio Chapter Secretary Michael C. Brink

New York

State Settles for Smaller Measures on Marijuana

While legalizing marijuana and creating a regulated adult-use marketplace was a stated legislative priority for Gov. Andrew Cuomo, the legislature instead ultimately passed a compromise marijuana decriminalization bill and a bill to regulate hemp extracts such as cannabidiol (CBD). Cuomo is expected to sign the decriminalization bill, but said he is unsure about the new hemp legislation. Senate Bill S6579A will decriminalize marijuana and automatically expunge low-level marijuana offenses. Possession of up to one ounce of marijuana will exact a $50 fine and will be considered a violation. Possession of one to two ounces of marijuana—currently a Class B misdemeanor—would become a violation subject to a fine of up to $200 and no longer punishable by jail time. Senate Bill S6184A, if signed, would regulate New York’s hemp program and hemp extracts, such as CBD; create new licensing requirements; set forth a regulatory framework for consumable CBD products; and require that hemp used for extracts be sourced from authorized New York State industrial hemp producers.—From CLM Member Neil Willner

 



Phil Gusman is managing editor of CLM magazine, a publication of the CLM. He can be reached at phil.gusman@theclm.org.

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