Around the Nation: January 2014

State news and updates from CLM state chairs, reps, and committees.

By Bevrlee J. Lips


Supreme Court Rules in Favor of Insurer

In a rare win for an insurance company in the state’s highest court, the Washington Supreme Court ruled 5-4 that a commercial general liability policy issued to a general partnership did not provide coverage for bodily injury suffered by one of the insured’s general partners while he was working as an independent contractor. In International Marine Underwriters v. ABCD Marine LLC, the court ruled that the general partner was not a “third person” and, therefore, was not covered under the insured contract provision of the insured’s CGL policy.—From Washington State Chapter Co-Chair & Education Director Paul Rosner


Proof of Loss in UIM Cases

In Zimmerman v. Allstate Property and Casualty Ins. Co., the Oregon Supreme Court held that “proof of loss” must be evaluated in light of the facts of a case and the policy involved. In the UIM context, a threshold issue is the limit of the tortfeasor’s insurance policy. To be sufficient, a proof of loss should, in the least, include the tortfeasor’s policy limits in order to allow an insurer to evaluate its potential UIM liability. Insurers should be aware that notice of an accident, coupled with PIP submissions, is not sufficient to constitute proof of loss. The upshot is that insurers will have more time to send a letter accepting coverage and, therefore, avoid a claim for attorney’s fees.—From Oregon State Chapter Co-Chair Jack Levy


Strong Quakes Strike Again

A magnitude-4.5 quake in central Oklahoma shook residents on Dec. 7, just weeks after the two-year anniversary of the strongest earthquake ever recorded in the Sooner state. The earthquake was centered near Arcadia, about 14 miles northeast of Oklahoma City, and was about five miles deep, according to the U.S. Geological Survey. The agency reported that the temblor was followed by a magnitude-2.8 quake at 1:26 p.m. about 10 miles northeast of Oklahoma City and a magnitude-3.1 quake at 5:58 p.m. about six miles northeast of the city. More than 500,000 residents were exposed to moderate shaking. No injuries or damage were reported from any of the quakes, according to Oklahoma Department of Emergency Management spokeswoman Keli Cain.—From Oklahoma State Chapter Lead Carol Prewitt


Reusing the Same Issue in Bodily Injury Lawsuit

In Auqui v. Seven Thirty One Limited, the plaintiff was injured when he was struck in the head by a sheet of plywood that fell to the sidewalk from a building that was under construction. He suffered injuries to his head, back, and neck and was subsequently diagnosed with depression and post-traumatic stress disorder. The New York Court of Appeals granted the defendant’s motion in Auqui to preclude the plaintiff from litigating the issue of his accident-related disability based on a prior ruling by the Workers’ Compensation Board (WCB). The New York State Trial Lawyers Association rallied against this decision by filing 15 amicus briefs introducing their concerns on the broad legal effects of the decision and a motion to reargue. In a rare occurrence, the court granted the motion for reargument in connection with the hotly contested decision, and 10 months after the ruling, it was reversed. This showcases the immense pressure the plaintiff’s bar can bring to bear on a particular issue.—From New York State Chapter Co-Chair Issy Bustamante


Attorney-Client Privilege and Work Email Communications

The Court of Chancery of the State of Delaware in In re Information Management Services Inc., held that the attorney-client privilege between executives and their personal lawyers did not apply to communications involving the use of the executives’ work email accounts. The communications concerned legal issues relating to allegations of a breach of fiduciary duties regarding mismanagement of the company. The court reasoned that the executives’ expectation of confidentiality had been eliminated for the following reasons: The company had reserved the right to gain access to email communications on its computer system by notifying employees through a policy manual that emails sent using their work accounts were not private; one of the executives recognized his work account was not secure and switched over to a commercial account; and the executives failed to undertake adequate precautions to prevent access to their work emails beyond noting in the subject line that they were subject to attorney-client privilege.—From Delaware State Chapter Member Diem N. Kaelber


The Doctrine of Contributory Negligence

For the second time in 30 years, the Maryland Court of Appeals has refused to abrogate the doctrine of contributory negligence. In an exercise of judicial restraint, the state’s highest court in Coleman v. Soccer Association of Columbia confirmed that, while contributory negligence provides “harsh justice,” the General Assembly’s repeated failure to repeal the doctrine is “very strong evidence” of current legislative policy. Although none of the judges heralded the principle, until the General Assembly responds otherwise, Maryland will remain one of the very few jurisdictions that bars recovery for any plaintiff who is deemed to have been at all negligent.—From Maryland State Chapter Member Andrew Gaudreau


Pre-Suit Disclosure of Private Medical Information

In Stevens ex rel. Stevens v. Hickman Community Health Care Services Inc., the Tennessee Supreme Court held that a statute requiring pre-suit disclosure of private medical information does not violate and is not preempted by HIPAA. The court expressly noted that HIPAA preempts contrary state laws. However, a requirement for the pre-suit disclosure of private medical information is a result of a plaintiff’s voluntary election to file suit. If the plaintiff does not want to disclose private health information, they can choose not to file a suit. Also, the pre-suit disclosure does not violate an implied covenant of confidentiality.—From Tennessee State Lead Chair Jim Wright

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

Top Industry News

Powered by : Claimspages