Around the Nation: December 2013

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

December 30, 2013 Photo


First Recognition of Loss of Chance Claims

Minnesota recently joined 22 other states in recognizing a tort cause of action for “loss of chance of recovery or survival” in a medical malpractice action. In Dickhoff v. Green, the Minnesota Supreme Court held that “a physician harms a patient by negligently depriving her of a chance of recovery or survival and should be liable for the value of that lost chance.” The court adopted a proportional-recovery approach to establish recoverable damages, finding that the total amount of damages recoverable is “equal to the percentage chance of survival or cure lost, multiplied by the total amount of damages allowable for the death or injury.”
—From Minnesota State Chapter Co-Chair Rob Moschet


Reevaluating Covenant Judgments

In Hidalgo v. Barker, the Washington Court of Appeals ruled the following on issues of first impression with regard to the determination of the reasonableness of a covenant judgment: Absent a material change in one or more reasonableness factors, a court that has already conducted a reasonableness hearing and determined a reasonable settlement amount for those parties is not required to entertain evidence and argument in support of revising that amount. Additionally, it is within the trial court’s discretion to either include or exclude prejudgment interest for the period between the date of settlement and the date judgment is entered. —From Washington State Chapter Co-Chair & Education Director Paul Rosner


Extent of WC Subro Rights of Employer

The Idaho Supreme Court recently held that a workers’ compensation insurance carrier has full subrogation rights to the entire amount of any settlement that an injured worker receives from a third party arising from the alleged work accident. In Rubio Izaguirre v. R&L Carriers Shared Services and Zurich American Insurance Co., the court unanimously affirmed the Idaho Industrial Commission finding that workers’ compensation subrogation “would [not] be [accomplished] by a rule that forbids recovery by an employer who voluntarily pays benefits.” As such, there is no limitation on the subrogation claim despite attempts by claimants to identify some portion of the recovery for pain and suffering or other damages not typically allowed in workers’ compensation. This is an excellent decision for workers’ compensation sureties and other insurance carriers. —From Idaho State Chapter Co-Chair David P. Gardner


Expert Testimony Not Required in Write-Offs

In Moretz v. Muakkassa, the Ohio Supreme Court held that expert testimony is not required to admit evidence of medical bill write-offs in Ohio personal injury cases. Pursuant to Ohio Revised Code 2317.421, evidence of write-offs reflected in medical bills and statements serves as prima facie evidence of the reasonable value of medical services. This decision resolves a conflict among some Ohio courts and reduces the potential need to incur defense expert witness costs just to introduce this admissible evidence. —From Ohio State Chapter Member Matt Bakota


Late-Season Destruction Hits the Midwest

On Nov. 17, 2013, a deadly series of late-season tornadoes tore across the Midwest causing more than 200 injuries and at least eight fatalities. Though the total number varies, the Weather Channel reported that 72 tornadoes, accompanied by high winds and large hail, left a wide path of destruction in seven states—the lion’s share hitting Illinois. Governor Pat Quinn designated 13 counties as disaster areas after the storms took down trees, downed power lines, and flattened buildings. The town of Washington, Ill., home to 16,000 residents and located about 140 miles west of Chicago, was the hardest hit when it took the brunt of an EF-4 level tornado, which caused damage to more than 1,000 homes, according to Mayor Gary Manier. Early estimates on property damage from the storm could reach as high as $1 billion, according to Risk Management Solutions.


Internships and Sexual Harassment

In Wang v. Phoenix Satellite Television US, Inc., a district judge ruled recently in a case of first impression that unpaid interns could not bring sexual harassment claims under the New York City Human Rights Law (NYCHRL). He dismissed the argument that Wang qualified as an employee because of the Restoration Act and ruled that the NYCHRL’s protection of employees does not extend to unpaid interns. In response, Councilwoman Gale Brewer plans on introducing legislation to close the loophole. In a prior related case, Glatt v. Fox Searchlight Pictures, the judge questioned the legality of unpaid interns generally. —From New York State Chapter Chair Howard S. Shafer


Insurer Cannot Litigate Anonymously

In Dionne Davis v. Tania Nicole Arevalo Martinez, Maryland’s Court of Special Appeals held that the trial court erred in allowing an underinsured motorist (UIM) insurer to participate in a trial anonymously. The case involved a tort claim against a driver and a breach of contract claim against the UIM insurer. The trial court granted a motion in limine to exclude references to the UIM insurer’s identity at trial. The jury returned a defense verdict. The Court of Special Appeals reversed, holding that the risk of prejudice to the driver arising from disclosure of the insurer’s participation did not outweigh the public policy interests favoring disclosure. —From Maryland State Chapter Co-Chair Susan Smith


No Right to Waive Attorney-Client Privilege

In Hedden v. Kean University, the New Jersey Appellate Division, in an unpublished decision, held that an email between a college coach and the school’s general counsel did not waive the attorney-client privilege despite the fact that the coach also shared the email with the NCAA during a pre-suit investigation. The Appellate Division found that the coach was, as an employee of the university, acting within the scope of her employment in soliciting legal advice from the university’s general counsel. Thus, an attorney-client relationship was formed. Furthermore, the Appellate Division held that the authority to waive the attorney-client privilege in the corporate context does not belong to each employee of the corporation but, rather, its officers and directors. Lastly, the Appellate Division held that the fact that the university did not voice an objection at the time of the NCAA’s investigation or take affirmative steps to reverse the coach’s unilateral action did not defeat assertion of the privilege by its true holder. —From New Jersey State Chapter Co-Chair Karen Painter Randall

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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