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CLM National: April 2021

News and verdicts that affect you from across the country

April 21, 2021 Photo

A court in Pennsylvania rules in favor of the plaintiff in a COVID-19 shutdown-order dispute, while appellate courts begin to consider the matter elsewhere in the country. And, in Georgia, the General Assembly passes a bill to extend the state’s COVID-19 liability protections for another year.

Washington

Liability of School District Cannot Be Precluded as a Matter of Law

In Myers v. Ferndale School District, No. 98280-5, a wrongful-death claim was brought after a student was killed by a vehicle while on an off-campus walk with his class. The trial court dismissed the negligence claim on summary judgment based on lack of duty. The Court of Appeals reversed, and the Washington Supreme Court affirmed. The court found sufficient evidence was presented to survive summary judgment by establishing a factual question as to whether the school district’s act of taking the students off campus led to the accident, as the off-campus walk did not comply with the internal policies and safety precautions. The court held the alleged acts of negligence were not too remote or insubstantial to be the legal cause of the student’s death. In a concurrence, Justice McCloud agreed that the district’s failure to obtain required parental permission for the walk suffices to show legal cause, but disagreed that the decision to take the walk on the sidewalk, at a normal pace, in broad daylight, suffices to show legal cause.— From CLM Member Cristin Cavanaugh, Soha & Lang, P.S.

Pennsylvania

Court Grants Summary Judgment in BI Dispute

The Court of Common Pleas of Allegheny County granted summary judgment to plaintiff Smile Savers Dentistry P.C. in a business-interruption coverage dispute arising from the state’s COVID-19 lockdown orders. The decision in the case, Timothy A. Ungarean d/b/a Smile Savers Dentistry P.C. v. CNA and Valley Forge Insurance Co. held, “This court determined that plaintiff’s interpretations of the business income, extra expense, and civil authority provisions of the insurance contract were, at the very least, reasonable.” The court noted that some courts have interpreted the contract language “direct physical loss of or damage to property” as requiring “some form of physical altercation and/or harm to property” to trigger coverage. But the court here disagreed, noting the use of “the disjunctive ‘or.’” Therefore, the court determined that “due to the presence of the disjunctive ‘or,’ whatever ‘direct physical loss of’ means, it must mean something different than ‘direct physical…damage to.’”—From Senior Managing Editor Phil Gusman

Florida

11th Circuit Weighs BI Coverage for COVID Losses

Trial courts have started to rule and appellate courts are now being asked to decide whether government closure orders enacted due to the COVID-19 pandemic cause restaurants “direct physical loss or damage to property” within the meaning of an all-risk insurance policy. This issue is pending before the 11th Circuit Court of Appeals after the Southern District of Florida dismissed a Florida restaurant operator’s effort to bring a lawsuit against insurer Lloyd’s of London seeking coverage for COVID-19 related restaurant closures. In its appeal in SA Palm Beach LLC v. Certain Underwriters at Lloyd’s, London, plaintiff SA Palm Beach LLC argues the district court’s ruling was contrary to Florida precedent, which states that “direct physical loss” includes “more than losses that harm the structure of the covered property.” Palm Beach also argues that the district court ignored the plain language of the policy, which covers “loss” or “damage.” Palm Beach has requested that the court hold oral arguments on this matter.—From CLM Members Brett Carey and Rachael J. Kratz, Rumberger, Kirk & Caldwell

Georgia

Bill Extends COVID-19 Liability Protections

The General Assembly passed a bill, HB112, to extend Georgia’s COVID-19 liability protections for a year, until July 14, 2022. The protections had been scheduled to expire July 14, 2021 under the original legislation approved on Aug. 5, 2020. The extension legislation passed the House in February 2021 by a 99-68 vote, and passed the Senate in March 2021 by a 36-17 vote. It is now awaiting Gov. Brian Kemp’s signature. The original legislation offers liability protection to health care providers and businesses “unless the claimant proves that the actions of the health care facility, health care provider, entity, or individual, showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”—From Senior Managing Editor Phil Gusman

Delaware

DRBC Issues Permanent Fracking Ban

The door is now closed on conducting high volume hydraulic fracking in the Delaware River basin (DRB). On Feb. 25, the Delaware River Basin Commission (DRBC) voted to finalize the temporary fracking ban it instituted in 2010 due to concerns over potential water pollution, which resulted from fracking wastewater. Over the last decade, environmentalists have been advocating for this ban to become permanent, arguing the wastewater from fracking can contain radioactive material and chemicals. It also presents a threat to a water reserve providing drinking water to approximately 13 million people, including roughly half of New York City. In May 2016, the Wayne Land and Mineral Group, which owns land in Wayne County and the DRB, filed a lawsuit claiming that the term “project,” as used in the DRBC’s defining document, covered “only water-resource projects, or projects undertaken with the specific purpose of conserving, using, or managing water resources,” which they claim would exclude fracking. That lawsuit is ongoing and is scheduled to go to trial in October.—From CLM Member Daniel L. Klein, Goldberg Segalla

New York

Legislature Repeals Nursing Home, Hospital COVID-19 Immunity

The New York State Senate unanimously passed legislation that repeals protections for nursing homes and hospitals against liability for COVID-19 malpractice lawsuits. The bill previously passed the Assembly. The Treatment Protection Act repeals the extra protections against liability that were granted to nursing homes, hospitals, and other health care facilities for treating patients during the COVID-19 pandemic. It also mandates a prominent display in nursing homes to inform residents of the Long-Term Care Ombudsman Program and requires the Department of Health to publish the patient bill of rights for the nursing home in the six most common non-English languages spoken in New York. It also reforms the review process for change of ownership or operations proposals filed with the Public Health and Health Planning Council, which is intended to add transparency regarding the ownership and operation of nursing homes.—From CLM Member Lisa M. Robinson, Goldberg Segalla

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About The Authors
Phil Gusman

Phil Gusman is senior managing editor of CLM magazine, a publication of the CLM.  phil.gusman@theclm.org

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