Insured-loss estimates issued for Hurricane Zeta, wildfires out West, and an August derecho that news reports called the costliest thunderstorm in U.S. history. And, in Washington, the 9th Circuit’s determination that the LRRA preempts a state statute stands after the U.S. Supreme Court denied certiorari.
LRRA Preempts State Statute
On Nov. 16, 2020, the U.S. Supreme Court denied certiorari in Allied Professionals Ins. Co. v. Anglesey, 952 F.3d 1131 (9th Cir. 2020), cert. denied, 2020 WL 6701252 (U.S. 2020). In this matter, the 9th Circuit determined that a Washington statute, RCW 48.18.200, did not invalidate a binding arbitration agreement in an insurance policy issued by a risk-retention group. It concluded that the Washington statute was preempted by the Liability Risk Retention Act of 1986, 15 U.S.C. § 3901 et seq.—From CLM Member Geoff Bedell
Wildfires Could Cost Over $8 Billion in Insured Damages
Wildfires that have ravaged California, Colorado, and Oregon could cost insurers over $8 billion and could cause economic damages totaling more than $13 billion, according to a report from insurance broker Aon. Noting that both figures are subject to change, Aon says that, in California, no fewer than 4.1 million acres have burned in 2020. In addition, the state has seen 31 fatalities from the fires and nearly 10,500 structures have been destroyed. The Glass Fire alone destroyed 1,555 structures while damaging an additional 280, Aon says. In Colorado, meanwhile, Aon says three of the state’s top-four fires on modern record have occurred since July 31, 2020.—From Managing Editor Phil Gusman
Over $1.6 Billion in Claims Paid From August Derecho
The Iowa Insurance Division says insurers have paid over $1.6 billion in claims so far from a derecho that mainly impacted the state in August 2020. News reports put total damages from the storm at $7.5 billion and report that it was the costliest thunderstorm in U.S. history. In Iowa, Insurance Commissioner Doug Ommen says nearly 160,000 claims have been paid, and over 200,000 had been reported as of early November 2020. Over 81,000 of the paid claims were in the homeowners multiple peril line, totaling over $876 million. Over 22,000 claims were paid in the commercial multiple peril line, followed by nearly 20,000 for farm owners multiple peril, and over 12,000 for private passenger auto.—From Managing Editor Phil Gusman
Up to $5 Billion in Hurricane Zeta Losses Expected
Total onshore U.S. insured losses from Hurricane Zeta are expected to fall between $3 billion and $5 billion, according to catastrophe modeler RMS. The estimate includes NFIP losses of between $200 million and $300 million. RMS says it expects most losses will stem from residential lines, adding that its estimate includes property damage and business interruption to residential, commercial, industrial, and automobile lines of business. Hurricane Zeta made landfall near Cocodrie, Louisiana on Oct. 28 as a Category 2 hurricane and mainly impacted parts of Louisiana and Mississippi. RMS says approximately 20 percent of zip codes impacted by Hurricane Zeta were also impacted by Hurricane Sally, but adds that the overlap in the worst-affected areas of these two storms appears to be minimal.—From Managing Editor Phil Gusman
Expert Testimony Required for Defendants Who Use “Empty Chair” Defense
On Aug. 24, 2020, in American Radiology Services LLC, et al. v. Martin Reiss, the Maryland Court of Appeals held that “to generate a defense of non-party medical negligence, expert testimony is required to establish a breach of the standard of care by the non-party and to establish causation.” The court was asked to determine whether expert testimony is required to establish the medical negligence of a non-party physician in a medical-malpractice case where the defendant physicians deny liability but assert that the negligence of a non-party physician was a cause of the plaintiff’s injuries. The court stated that Maryland courts have consistently held that expert testimony is required to establish medical negligence and causation, since medical-negligence cases are “rooted in the notion that such complex issues are beyond the general knowledge and comprehension of layperson jurors.” Therefore, when “a defendant elects to raise non-party medical negligence as part of its defense, the defendant has the burden to produce admissible evidence to allow a jury to make a finding on that issue.”—From CLM Member Zachary A. Miller
Court Reinforces Continuing Storm Doctrine
The Delaware Superior Court granted summary judgment in favor of a pharmaceutical company in a premises slip-and-fall case, reinforcing the state’s continuing storm doctrine that stipulates premises owners will not be held liable for waiting until the end of a storm to remove snow and treat ice. In the case, the plaintiff claimed that the storm had ended at the time of her fall. However, the defendants provided evidence showing that storm conditions began before and ended after plaintiff’s fall at 8:30 a.m. on Jan. 12, 2015. Furthermore, the plaintiff stated that she could not remember what the weather was like after the incident occurred, and the defense stated that, even if a storm did not occur at the time the plaintiff fell, the continuing storm doctrine still applied, since evidence showed the storm continued after plaintiff fell, meaning the time when plaintiff fell would have been just a lull in the storm. Since the undisputed evidence showed a storm occurred prior to and did not conclude until sometime after the plaintiff fell, the court granted summary judgment.—From CLM Members Marisa Trasatti and Robert E. Scott Jr.