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CLM National: December 2022

News and verdicts that affect you from across the country

December 07, 2022 Photo

Attorneys in Illinois must be careful when reporting case results that include sensitive medical information, a Washington court contemplates the legislative intent behind the Insurance Fair Conduct Act, and an NCCI report says COVID-19 workers’ compensation lost-time claims fell in 2021 versus 2020.


“Actual Damages” Include Non-Economic Damages

In Beasley v. Geico, the court of appeals digs deeper into the state’s legislative intent behind the Insurance Fair Conduct Act (IFCA). GEICO offered to pay $10,000 to settle plaintiff’s UIM claim after an accident. Plaintiff rejected the offer, but his counsel requested the $10,000 as an “undisputed UIM amount,” which GEICO did not pay. Plaintiff sued for violation of RCW 48.30.015 of IFCA, breaching, amongst other things, the duty of insurance good faith. Plaintiff sought economic and noneconomic damages and requested that the court triple those damages as allowed under IFCA. The trial court relied on two federal cases to conclude that the IFCA claim did not include noneconomic damages. The jury found for Beasley. Plaintiff ultimately received treble damages for his economic damages, but not for his noneconomic damages. In his appeal, plaintiff argued noneconomic damages are in fact “actual damages” recoverable and subject to trebling under RCW 48.30.015 of IFCA. The court ruled non-economic damages are available under IFCA and rejected using federal cases as binding in making their decision.—From CLM Member Prina Patel, Tyson & Mendes


Minneapolis Reaches Settlement With Protesters

The American Civil Liberties Union of Minnesota announced a $600,000 settlement between the city of Minneapolis and 12 protesters injured during the protests held after the 2020 police killing of George Floyd. The U.S. District Court for the District of Minnesota accepted the agreement and entered an injunction, ending a class-action lawsuit brought by ACLU-MN, Fish & Richardson P.C., and Gustafson Gluek PLLC on behalf of the protesters. In addition to the payment, the injunction prohibits the city from arresting, threatening to arrest, or using physical force including but not limited to chemical agents, flash bang/concussion grenades, and foam-tipped bullets against people engaging in lawful protests, assemblies, or demonstrations. It also limits the use of chemical agents by police to disperse peaceful protests and requires that officers deployed to protests have their body-worn cameras recording and unobstructed.—From Senior Managing Editor Phil Gusman


Hurricane Ida Claims Approaching $14 Billion

Insurers have paid or reserved to pay $13.9 billion on all types of Hurricane Ida-related claims in Louisiana through Sept. 30, according to Insurance Commissioner Jim Donelon. This is up from $13.1 billion announced in September for claims through June 30. Ida struck Louisiana on Aug. 29, 2021, as a Category 4 storm and affected 25 parishes. Policyholders have filed 478,417 claims as of Sept. 30. Of those, 319,855, or 67%, were closed with payment, totaling $10.9 billion.—From Senior Managing Editor Phil Gusman


Attorneys Dinged for Medical Info Disclosure

Plaintiff, Doe, attempted suicide after he was admitted into the hospital’s emergency room for a pill overdose. Doe sued the hospital for malpractice and obtained a $4.2 million verdict. After the trial was concluded, the plaintiff’s attorneys issued a press release and also commented on the details of the case, including Doe’s real name in both. Doe filed a new suit claiming that his firm violated his medical privacy rights under state and federal law. The law firm filed a motion to dismiss arguing that the state law and HIPAA did not apply to them because it did not have a “therapeutic relationship” with Doe. The trial court agreed with the defendant-firm, but, on appeal, the court sided with Doe and ruled that the defendant lawyers violated the state’s Mental Health and Developmental Disabilities Confidentiality Act. Law firms attempting to publicize wins on this front should be cognizant of the dangers of releasing private medical information of the client even after initial consent during public litigation.—From CLM Member Craig M. Derrig, Wood Smith Henning & Berman


COVID-19 Workers’ Comp Claims Decreased in 2021

On average, COVID-19 claims decreased from 11% of workers’ compensation lost-time claims reported in accident year (AY) 2020 to 4% in AY 2021 across jurisdictions included in a study by the National Council on Compensation Insurance (NCCI), in collaboration with nine other workers’ compensation rating bureaus. Workers’ comp bureaus in California, Delaware, Indiana, Pennsylvania, Michigan, Minnesota, New Jersey, North Carolina and Wisconsin contributed to the study, and NCCI provides workers’ compensation rating and loss cost analysis in 36 other states. Claim and loss activity varied across jurisdictions, impacting individual states and sectors differently and at varying times. Uncertainties remain about the long-term impact of COVID-19 on the U.S. workforce. Approximately 75% of reported COVID-19 lost-time claims were from the health care sector, while that sector only accounts for about 9% of non-COVID-19 lost-time claims. Indemnity-only claims, while uncommon for non-COVID-19 claims, continued to represent the largest share of COVID-19 claims.—From Mark Friedlander, Insurance Information Institute

New York

Manufacturer Must Appear for Deposition

In this asbestos action before the Supreme Court of New York, Appellate Division, First Department, defendant Burnham moved to vacate the NYCAL Special Master’s ruling directing Burnham to appear for a deposition related to punitive damages. Burnham appealed the trial court’s decision denying their motion to vacate, but the decision was affirmed by the Appellate Division. After noting the relevant portions of the NYCAL Case Management Order (CMO), the Appellate Division set forth that “[t]he Special Master providently exercised her discretion in directing Burnham to appear...after finding that Burnham’s responses to plaintiffs’ standard punitive damages interrogatories were inadequate.” The Appellate Division also rejected Burnham’s argument that punitive damages discovery should follow a finding that a defendant is liable to a plaintiff for punitive damages, which was based in non-asbestos decisions. Instead, the court noted “the exceptional needs of asbestos cases and litigants, which justified the CMO and its deviations, where necessary, from the CPLR in the first place.”—From CLM Member Elizabeth Lautenbach, Goldberg Segalla

About The Authors
Phil Gusman

Phil Gusman is senior managing editor for CLM Magazine and Construction Claims magazine.  phil.gusman@theclm.org

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