Around the Nation: July 2012

News and updates from CLM state chairs and committees.

July 26, 2012 Photo


Minor’s Liability Waiver Valid

In Squires ex rel. Squires v. Goodwin, 2011 WL 5374754 (D. Colo. 2011), the plaintiff, a 17-year-old girl, was legally blind and had cerebral palsy and developmental disabilities. While at a ski resort, Squires participated in an adaptive-skiing lesson and was involved in a serious accident on the slopes. She sued the program for negligence and gross negligence/reckless conduct seeking more than $30 million in damages (including $5.8–$14.1 million in economic losses).

Colorado law permits a parent to release a child’s prospective claim for negligence as long as the decision is “voluntary and informed.” Before trial, the defense attorney obtained summary judgment on the claim based on the liability waiver signed by the plaintiff and her mother, finding that the mother’s decision was voluntary and informed. Because the recreational service provider’s informative release regarding the risks of skiing withstood judicial scrutiny, the plaintiff had to prove that the insured engaged in reckless conduct. The jury unanimously rejected the claim.—From Colorado State Lead Chair Deana R. Dagner



Policy Stacking Prohibited

In Parish v. United Financial Cas. Insurance Co., et al, 2012 MT 116, the Montana Supreme Court held that an uninsured motorist policy did not permit policy stacking.

The Parishes, who had two vehicles insured on their policy at the time of an accident, argued that they should be permitted to stack the UM benefits provided in their policy. The policy clearly prohibited stacking in conformance with Montana law and informed the insured that they were being charged a single premium for uninsured motorist coverage, regardless of the number of insured vehicles.

The court distinguished its holding from Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, 315 Mont. 107, 67 P.3d 892, where the court held that an insured who was charged multiple premiums for underinsured motorist coverage (UIM) on three separate vehicles could stack the coverages and feasibly collect the triple amount.—From Montana State Lead Chair James Cumming



Duty of Landowners Expanded

In Estate of Mickelsen v. North-Wend Foods, Inc., 2012 WL 1506147 (April 2012) the Supreme Court, in reversing a defendant’s judgment on the pleadings, expanded the scope of a landowner’s duty to include claims of liability for conditions it created or maintained on its property when the triggering event also requires the negligent act of a third party.            

A driver going east crossed two lanes of westbound traffic to take a shortcut into North-Wend’s fast-food restaurant via a drive-through exit. Mickelsen, who was proceeding west on a motorcycle, collided with the truck and was killed.

The court, citing Webb v. Sitka, 561 P.2d 731 (Alaska 1977), stated that the restaurant had a duty to maintain its property in a reasonably safe manner in view of all of the attendant circumstances. The court left open the door for a possible motion for summary judgment after the facts had been developed. However, it ruled that the plaintiff’s complaint could not be dismissed as a matter of law.—From Alaska Member Timothy Lynch



Challenge to Checks and Balances

The Missouri legislature has passed a proposed state constitutional amendment that will change how Missouri appellate judges are selected. The issue will be on the November general election ballot.

Currently, the nonpartisan Appellate Judicial Commission, which is comprised of three lawyers elected by the Missouri Bar, three non-lawyers selected by the governor, and one Missouri Supreme Court judge selected by the Missouri Supreme Court, screens candidates and submits a list of three from which the governor chooses one to fill any open seat on the court. The commission can continue to resubmit passed-over selections.

Under SJR 51, the governor would appoint a majority (four of seven) of the voting commissioners, which breaks down the checks and balances by giving control of the appellate selection process to the executive branch. The resolution is unanimously opposed by both the plaintiff’s and defense bars in Missouri.—From Missouri State Lead Chair Jeff Brinker



Discrimination or Freedom of Expression?

The Court of Appeals held that a photography company’s refusal to photograph the commitment ceremony of same-sex partners violated the New Mexico Human Rights Act (NMHRA) in Elane Photography, LLC, v. Willock, No. 30,203 (N.M. App. May 31, 2012).

Elane Photography, a Christian-owned company, declined the job because the event would be contrary to the owners’ religious and personal beliefs and it would compromise their freedom of artistic expression. It was significant to the court’s analysis that the company advertised its photography services to the general public, affirming it to be a “public accommodation.” The court rejected the company’s constitutional arguments that NMHRA violated its rights to freedom of expression and free exercise of religion.

Currently, same-sex marriages are not performed in the state of New Mexico, which also does not provide civil unions or domestic partnerships.—From New Mexico Lead State Chair Deborah E. Mann



Stress Injury from Business Failure

The New Hampshire Supreme Court has addressed whether mental stress resulting from the failure of a business is an “injury” for purposes of obtaining workers’ compensation benefits (Appeal of Letellier, No. 2010-795).

The New Hampshire workers’ compensation statute excludes as an injury stress resulting from disciplinary actions, work evaluations, job transfers, layoffs, demotion, or termination taken in good faith by the employer. The court interpreted the statute and held that losing one’s business was similar to the articulated provisions in the statute and, therefore, the mental condition resulting from such stress did not result in a compensable work injury.—From New Hampshire State Lead Chair J. Kirk Trombley



Statute Violations Mean Punitive Damages Go to Jury

In Fairchild v. South Carolina Department of Transportation, et al, the South Carolina Supreme Court held that a trial court should have allowed the issue of punitive damages to go to the jury when the court had already concluded that two statutes governing traffic safety had been implicated in the case. The violation of a statute constitutes negligence per se, and negligence per se is some evidence of recklessness and willfulness that requires submission of the issue of punitive damages to the jury. The Supreme Court added that there must be some inference of a causal link between the statutory violation and the injury to warrant submitting the issue of punitive damages to the jury.—From South Carolina Chapter Member Langdon Cheves

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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