Around the Nation: August 2012
News and updates from CLM state chairs, reps, and committees.
Evidence of Medical Damages Paid Admitted
In Tri-County Equipment & Leasing, LLC v. Klinke, 128 Nev. Adv. Rep. 33, an employee was injured by a third party within the course and scope of her employment. The employee received workers’ compensation benefits and then sued the third party for negligence. At trial, the employee admitted evidence showing the amount billed by her doctors. The defense sought to admit evidence that the doctors accepted a lesser amount as payment in full from workers’ compensation. The district court refused to admit the amount paid.
The decision was reversed on appeal in the Nevada Supreme Court. Nevada now permits the admission of evidence in cases where medical treatment is provided through a workers’ compensation program, including the amount actually paid to satisfy an injured person’s medical bills.—From Nevada State Co-Chair Alonzo Johnson
Scuba Gear, Arson, and Cyanide Pills
In a bizarre ending to an equally strange arson case, authorities now believe that Michael Marin, former Wall Street trader, attorney, adventure seeker, and art collector, likely committed suicide in a Phoenix courtroom immediately after a jury found him guilty of arson. Marin’s multimillion-dollar home was suspiciously set ablaze in July 2009, with the only occupant, Marin, escaping the burning structure while wearing scuba gear. Facing a possible 16 years in prison, Marin held his head in his hands shortly after the verdict was read and appeared to ingest something. Investigators speculate that is when he slipped a homemade cyanide pill into his mouth causing his death only minutes later. Courtroom video recorded the reading of the verdict and his final moments.—From Arizona State Lead Chair Bill Nebeker
Not Your Co-Worker’s Keeper
Missouri Governor Jay Nixon signed into law House Bill 1540, which restores co-employee immunity for workplace injuries except where the co-employee “engaged in an affirmative negligent act that purposely and dangerously caused or increased the risk of injury.” The legislation abrogates the holding in Robinson v. Hooker, a 2010 Western District Court of Appeals decision that held that the 2005 Workers’ Compensation Act did not expressly extend an employer’s immunity for work-related injuries to co-employees.—From Missouri State Lead Jeff Brinker
Revised Opinion in 9/11 Worker Injury Case
In Deutsche Bank Trust Company Americas, et al. v. Royal Surplus Lines Insurance Company, et al., the Delaware Superior Court issued a revised opinion resolving a dispute between Deutsche and its insurers regarding defense obligations for claims brought by workers alleging personal injuries from exposure to hazardous materials while repairing properties damaged in the attacks at the World Trade Center on 9/11. New York law was applied. Perhaps most significant is the court’s holding regarding allocation between the triggered policies. The court concluded that a pro rata allocation of defense costs was the most “practical and equitable” result and applied a time-on-the-risk analysis.
Although for certain claims Deutsche was uninsured for a portion of the alleged exposure period, the court required the insurer providing coverage for the balance of the exposure period to provide a full defense and did not apportion liability for defense expenses to Deutsche.—From Delaware State Lead Chair Paul Bradley
UM Double-Dipping in Question
In Robert Mears v. Kendra M. Williams, et al., the trial court disallowed any offset based upon the specific provisions of the uninsured motorist policy. On appeal, the Tennessee Court of Appeals Western Section analyzed the exact policy language from several cases construing the offset provision. The court reversed the decision, concluding that if the policy provides for a reduction, then there is a dollar-for-dollar reduction. However, if the language provides that loss or expenses will not be paid again, in the event of a significant verdict the insurer may be entitled to no offset or a limited offset.—From Tennessee State Lead Chair Jim Wright
Parental Duty to Prevent Suicide
Kristin Cummings, a 25-year-old woman and mother of two, was depressed with suicidal ideation when she entered the hospital. After an evaluation by medical personnel and crisis care providers, she was thought not to be actively suicidal, refused admission to a crisis unit, and released into her parents’ care. When the parents momentarily left her alone early the next morning, Cummings shot herself with her father’s pistol.
In Estate of Cummings v. Davie et al., 2012 ME 43, the Maine Supreme Judicial Court, noting the gravity of the social policy implications, affirmed summary judgment dismissing the estate’s claim against the parents. The court found that the temporary care and living arrangement did not impose upon the parents a legal duty to prevent their daughter, a competent adult who had been deemed not to be a danger to herself or others, from harming herself.—From Maine State Lead Chair David P. Very
Public Adjusters Win on Solicitation Ban
In July 2012, the Florida Supreme Court held a 2008 Florida law (Fla. Stat. 626.854(6)) as unconstitutional because the law restricted public adjusters from contacting an insured or claimant until at least 48 hours after the occurrence of an event that may be the subject of a claim. On appeal from the First District Court of Appeal, the Florida Supreme Court cited precedent from the United States Supreme Court stating that solicitation in a business context is protected commercial speech to which the protections of the First Amendment apply.
According to a 2010 report from Florida’s Office of Program Policy Analysis & Government Accountability, the number of licensed public adjusters increased nearly 330 percent in a five-year period—from 678 in 2004 to 2,914 in 2009. Florida has the highest per capita proportion of public adjusters, more than double the ratio for other states.—From Florida State Lead Chair Ron Bush
Bevrlee J. Lips is managing editor of Claims Management magazine, a publication of the CLM. She can be reached at email@example.com.