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National News: July 2018

News and verdicts that affect you from across the country

July 03, 2018 Photo

Hurricane Irma losses in Florida approach $10 billion, a Pennsylvania appellate court reconsiders overturning a bad-faith judgment in a 20-year-old case, and, in New York, questions of fact over whether a plaintiff used adequate safety devices are deemed sufficient to defeat a summary judgment motion on a Labor Law claim.


Maximum Medical Improvement Does Not Limit PIP Coverage

In a unanimous decision, the Washington Supreme Court held in Durant v. State Farm Mutual Automobile Insurance Company that Washington regulations require automobile policies containing personal injury protection (PIP) coverage to pay for all medical and hospital services related to an accident that are reasonable, necessary, and incurred within three years of the accident. The issue came before the court in the form of two certified questions submitted by the U.S. District Court for the Western Division in Washington, which was adjudicating the plaintiff’s claim that State Farm had wrongly refused to pay PIP benefits for chiropractic treatments arising out of his automobile accident based upon his achieving maximum medical improvement (MMI) where his doctor continued to prescribe the treatment as necessary. The court found that State Farm’s policy violated the plain language of Washington Administrative Code 284-30-395(1) by limiting coverage to those medical expenses that are essential in achieving MMI for the bodily injury sustained in the accident.—From CLM Member Andrew Kamins


Appellate Court Reconsiders Overturning $21M Bad-Faith Award

In Berg v. Nationwide Mutual Insurance Company Inc., an appeals court panel recently withdrew its April 2018 decision overturning a trial court’s order that Nationwide must pay $21 million for acting in bad faith in a 20-year-old auto repair case. The underlying lawsuit alleged that Nationwide pressured its designated body shop to repair the insured’s vehicle rather than declaring it totaled. A jury sided with Nationwide on most of the claims but still awarded the insured $295 in damages for the insurer’s violation of a state consumer protection statute. While no punitive damages were initially awarded, the trial judge later found that Nationwide had acted in bad faith and ordered the company to pay $18 million in punitive damages and $3 million in attorneys’ fees following a remand from the Pennsylvania Supreme Court. Nationwide appealed the award and the appeals court, after evaluating the evidence and noting its concern that the trial court may have considered non-record matters, overturned it in a split decision. However, the same panel withdrew its decision in early June and stated that it would reconsider the case.—From Northeast Ohio Chapter Vice President, Michael C. Brink


Hands-Free Driving Law Takes Effect

The “Hands-Free Law” (HB 673), signed by Georgia Governor Nathan Deal in May, went into effect on July 1. The law attempts to stem the tide of increasing roadway fatalities in Georgia by banning cellphone use while operating a vehicle unless the driver uses a hands-free device. Drivers cannot have phones in their hands or use any part of their bodies to support phones, cannot send or receive texts unless by voice-based communication, cannot watch videos unless for navigation, and cannot touch their phones while driving to control music apps. Penalties include fines and driving record points. A report on distracted driving from the Georgia House Study Committee that was released in December 2017 noted that traffic crashes in the state were up by 36 percent from 2014 to 2016. Fatal crashes from 2014 to 2015 increased at three times the national average. As a result, Georgia had the highest average increase in auto insurance premiums in 2016, at 12.2 percent.—From Managing Editor Phil Gusman


Up to 700 Homes Destroyed So Far by Kilauea Eruption

Between 600 to 700 homes have been destroyed and thousands of people have been displaced by molten rock from Kilauea, Hawaii Island’s youngest volcano, and that number is expected to grow as volcanic activity continues, according to news reports. Kilauea began erupting May 3. Meanwhile, the Halemaumau Crater at Kilauea’s summit continues to expand as its walls collapse. According to the Hawaii Tribune Herald, this is threatening Jaggar Museum, located on the edge of the Kilauea caldera. The Tribune Herald quotes Jessica Ferracane, Hawaii Volcanoes National Park spokeswoman, as stating that the building, which also houses the U.S. Geological Survey’s (USGS) Hawaiian Volcano Observatory, could slide into the caldera if activity continues. CNBC reports that President Trump has approved relief and federal emergency housing aid for victims, and USA Today reports FEMA is working to get assistance to those who qualify. USA Today also notes that many destroyed homes are uninsured.—From Managing Editor Phil Gusman


Hurricane Irma Insured Losses Approach $10 Billion

Losses from Hurricane Irma insurance claims in Florida are up to $9.7 billion according to the state’s Office of Insurance Regulation (OIR). In a June 12 update, the OIR says 978,767 Irma-related claims have been filed so far, and 90.5 percent of them have been closed. Of the claims filed, 823,733 are residential property claims, and 91.5 percent of those have been closed. The lowest percentage of closed claims are in the commercial property line, where 68.4 percent of the 58,544 claims filed have been closed. The most claims were filed in Dade County, where 80.5 percent of the 125,636 claims filed have been closed; Collier County, where 89.5 percent of the 88,934 claims filed have been closed; and Broward County, where 85.4 percent of the 80,958 claims filed have been closed. The Insurance Information Institute (I.I.I.) says Irma losses have increased by $1.1 billion since April, when the OIR last released an update.—From Managing Editor Phil Gusman

New York

Labor Law Summary Judgment Motion Defeated Amid Adequate Safety Questions

In Maman v. Marx Realty & Improvement Co. Inc., the plaintiff, an ornamental ironworker, and a coworker were retrieving a piece of steel Q-decking for installation when the plaintiff slipped and/or tripped, lost his balance, and fell through an opening located between two steel beams. The plaintiff was wearing a harness with a lanyard at the time of the accident, but was not tied off. The lower court granted summary judgment on plaintiff’s Labor Law §§ 240(1) and 241(6) claims. In reversing the lower court’s decision, the Appellate Division, First Department found the record demonstrated triable issues of fact existed as to whether static lines were in place for theplaintiff to safely tie off. The court also found that an issue of fact existed as to whether any violation of Labor Law § 241(6) based on 12 NYCRR 23–1.7(b)(1) was a proximate cause of the plaintiff’s accident. This case stands for the proposition that questions of fact as to whether plaintiff had adequate safety devices are sufficient to defeat summary judgment motion on Labor Law §§ 240(1) and 241(6) claims.—From CLM Member Kevin Fitzpatrick


About The Authors
Phil Gusman

Phil Gusman is senior managing editor for CLM Magazine and Construction Claims magazine.  phil.gusman@theclm.org

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