3/22/2016

Around the Nation: March 2016

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

By Bevrlee J. Lips

COLORADO: Negligence Per Se Claims in the Rafting Industry

The 10th U.S. Circuit Court of Appeals issued a published opinion in January affirming the enforceability of releases signed by those engaging in recreational activities. Espinoza v. Arkansas Valley Adventures LLC, which arose out of a whitewater fatality, was dismissed on summary judgment. On appeal, the plaintiff argued that, because Colorado has a statute regulating the rafting industry, the defendant’s release could not be invoked to bar a negligence per se claim. The court disagreed, holding that the plaintiff’s “argument suggests a firmer analytical line can be drawn between claims of negligence and negligence per se...Colorado law has long permitted parties to contract away negligence claims in the recreational context. And negligence per se claims often differ very little from their common law cousins.” The court also rejected the plaintiff’s argument that the release failed to bar the plaintiff’s fraud claim.—From Denver Chapter Director of Education Ryan L. Winter ice President Valerie Garcia

KENTUCKY: Counting on Air Bags in Salvage Titling

Air bags have been in the news again recently with recalls in the millions. In 2009, Governor Steve Beshear signed into law an amendment stating the cost to reinstall air bags shall not be included when assessing whether vehicle damages exceed 75 percent of the value set forth in the current National Automobile Dealers Association (NADA) guides when computing a total loss and determining if it is subject to salvage titling. If salvage title is determined, air-bag costs are to be included in the physical damage estimate for both first- and third-party claims. These cases are most likely to increase, so claims professionals and appraisers who are unfamiliar with the law should brush up on KRS § 186A.520(1).—From Kentucky Chapter Vice President Helena Carpenter

NEVADA: Special Statute Governs When in Conflict with General Statute

In Piroozi v. Eighth Jud. District Ct (Hurst), plaintiffs filed suit against several health care providers claiming negligence caused their daughter to suffer permanent brain damage. All defendants settled except Dr. Piroozi and Dr. Blahnik. The plaintiffs filed a motion in limine to preclude the doctors from arguing comparative fault of the settled defendants at trial and including their names on the jury verdict form. The district court relied on NRS 41.141(3), which prohibits a jury from considering the comparative negligence of settled defendants and the settlement amounts when a remaining defendant asserts a comparative negligence defense, and granted the motion. The doctors argued that NRS 41.141 did not apply because it invalidates NRS 41A.045’s abrogation of joint and several liability by preventing the doctors from arguing the liability of settled defendants. The Nevada Supreme Court stepped in to resolve the conflict and determined that “where a general and special statute, each relating to the same subject, are in conflict and they cannot be read together, the special statute controls.” Because NRS 41A.045 is a special statute focusing on professional negligence of a health care provider, it governs here.—From Nevada Chapter Vice President Gina M. Mushmeche

OHIO: Failure to Define “Damages” Results in Coverage

Wayne Mutual Insurance Co. v. McNabb involved an action to declare that an insurer had no duty to defend or indemnify an unjust enrichment claim filed against the insured by his wife’s former employer and arising from her theft as the company’s bookkeeper. The trial court entered summary judgment in the insurance company’s favor on the basis that the unjust enrichment claim did not constitute a suit under the policy because equitable relief does not constitute damages. In reversing summary judgment, though, the appellate court determined that the undefined term “damages” was, at best, ambiguous and that its ordinary meaning was necessarily broad enough to include restitution of money. As a practical matter, the appellate court noted that insurers that underwrite policies for Ohio insureds “can easily avoid this problem by drafting policies that expressly exclude coverage for lawsuits seeking the equitable remedy of restitution.”—From Northeast Ohio Chapter Secretary Michael C. Brink

OREGON: Expert Testimony About Emotional Overlay Acceptable

In Thoens v. Safeco Insurance Co. of Oregon, the Oregon Court of Appeals held that a defendant’s medical expert could testify about “emotional overlay” in regards to a plaintiff’s symptoms. The court reasoned that the expert’s testimony about emotional overlay did not violate the rule against commenting on another witness’ testimony because the expert’s testimony was not that the plaintiff was faking or exaggerating her injuries but, rather, that his opinion was that her pain was psychological and emotional rather than physical.—From CLM Member Jack Levy

TENNESSEE: Missed Hearing Not Grounds for Dismissal

If a party fails to appear in court for a hearing, can a trial court dismiss for failure to prosecute? In Metropolitan Development and Housing Agency v. Allen, a Tennessee appellate court held that it cannot. A dismissal is too drastic of a remedy and is an abuse of discretion. Dismissal for failure to prosecute should be used sparingly—where a case has “languished” on the court’s docket. So if you miss a hearing, it is not grounds for dismissal, but languishing may get a party into trouble.—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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