Around the Nation: August 2016

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

August 16, 2016 Photo

CONNECTICUT: Gun Manufacturer Protected by Federal Law Asks for Dismissal of Sandy Hook-Related Case

In June 2016, Fairfield District Superior Court Judge Barbara Bellis heard arguments on whether the families of the victims of the 2012 Sandy Hook Elementary School shooting may proceed in their case against Remington Arms Co., the manufacturer of the Bushmaster XM-15 semi-automatic rifle used in the shooting. The lawsuit sounds in negligent entrustment, alleging that Remington knew or should have known that the sale of the military-style weapon posed an unreasonable risk of injury to others when entrusted to civilians. Remington argued that the lawsuit should be dismissed because it is protected from suit under the Protection of Lawful Commerce in Arms Act. Bellis has until mid-October to rule on the defense’s motion to dismiss the case.—From Connecticut Chapter Secretary Brian Del Gatto

FLORIDA: Is Attorney Referral Privileged or Discoverable?

In Worley v. Central Florida Young Men’s Christian Association, the testimony of the plaintiff, treating physicians, and other witnesses was unclear as to how a plaintiff was referred to her treating physicians. The defendant showed a good faith-basis for suspecting a referral relationship, so information concerning the treating physician’s relationship with the plaintiff’s firm could be sought through discovery directed to the plaintiff’s law firm, especially when there was an indication in the record that the physician’s fees were inflated.—From CLM Chapter Member Elizabeth Plummer

MARYLAND: Adult Hosts Serving Alcohol to Minors May Face Consequences

Although Maryland does not have a dram shop act, its highest court recently ruled that an adult who “knowingly and willfully” hosts an underage drinking party may be held civilly liable for death or injuries caused by an intoxicated attendee. Based on the strong public policy reflected in a new statute that imposes criminal penalties upon such hosts, the court of appeals found that a limited form of social host liability exists only when the adults in question act knowingly and willfully, as required by the statute. The appellate court ruling stems from two cases—Kiriakos v. Phillips and Dankos v. Stapf. Even though such claims are based on the negligence of the host, an adult who acts willfully cannot assert a defense of contributory negligence on the part of the underage drinker. This is the first time that Maryland has imposed even a limited version of dram shop liability.—From Maryland Chapter President Irwin R. Kramer

OHIO: No Auto Liability Insurance, No Damage Award

Ohio HB 279 is proposed legislation that would preclude a jury’s award of noneconomic damages (pain and suffering, loss of companionship, loss of enjoyment of life, etc.) to an injured party who does not possess automobile liability insurance at the time of an accident. In other words, under this law, an injured plaintiff who was an uninsured driver at the time of the collision would be precluded from recovering anything but medical expenses and lost wages in a civil action. The judge or jury would not be permitted to award noneconomic damages. Proponents of the bill claim its purpose is to encourage all drivers to comply with Ohio’s mandatory auto insurance law. In a rare union, both the plaintiff’s bar, some Ohio insurers, and Ohio’s defense lawyers have opposed the bill actively as being an unfair penalty to the poor. The insurance agent’s lobby pushed the bill through the House with a 53-32 vote of approval. The bill now moves on to the Ohio Senate for possible adoption and passage into law next year.—From Northeast Ohio Vide President Brian D. Kerns, Esq. 

OREGON: Duty of Manufacturers to Warn of Possible Dangers

In the 1940s, Warren Pumps designed and sold pumps to the Navy, which were installed on ships where Paul McKenzie served during his naval career. McKenzie later developed mesothelioma and died. In McKenzie v. A.W. Chesterson Co., the Oregon Court of Appeals was tasked with determining whether or not these pumps were in substantially the same condition as when they were sold, despite the fact that the asbestos-containing components, which were manufactured by others, were routinely replaced. The court held that summary judgment was inappropriate because the plaintiff presented evidence that Warren Pumps had reason to know that the Navy would continue to use such parts in the pumps. The case reminds manufacturers of their duty to warn consumers of possible dangers presented by their products and that their duty may extend to the components that were manufactured by others and expected to be replaced over the life of the product.—From CLM Member Jack Levy 

TENNESSEE: Entanglement Leads to Denial of Workers’ Compensation Benefits

Failure to use a required safety appliance can lead to a denial of workers’ compensation benefits. In Hawks v. Christian, the plaintiff became entangled in a cable on his safety harness while working on a roof. In order to free himself, he unlatched the harness connected to the cable and fell from the roof in the process. The test for enforcing a defense related to a failure to use a safety appliance consists of four parts: (1) the employee’s actual, as opposed to constructive, notice of the rule; (2) the employee’s understanding of the danger involved in violating the rule; (3) the employer’s bona fide enforcement of the rule; and (4) the employee’s lack of a valid excuse for violating the rule. The Supreme Court’s Special Workers’ Compensation Appeals Panel reversed the trial court and found the removal of the harness to untangle it was not a valid excuse and denied recovery of benefits.—From CLM Member James C. Wright

About The Authors
Bevrlee J. Lips

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

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