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CLM National: January 2022

News and verdicts that affect you from across the country

January 19, 2022 Photo

OSHA will begin implementing the Biden administration’s vaccine mandate after a Sixth Circuit Court of Appeals ruling, the Florida Supreme Court looks at the rear-end presumption in auto accidents, and, in Nevada, the Supreme Court rules on gun manufacturers’ liability in a mass shooting event.


Gun Manufacturers Immune Concert Lawsuits

The Supreme Court of Nevada upheld the state’s statutory immunity for gun manufacturers and distributors, holding that they are immune from claims arising from the 2017 Route 91 Harvest Festival massacre. The shooter used AR-15 rifles that he had modified using bump stocks. A lawsuit alleged that manufacturers and distributors of the rifles were liable. In Parsons v. Colt’s Manufacturing Company, LLC, the Supreme Court decided that Nevada Revised Statute 41.131 immunized the manufacturers and distributors from state law claims. The statute states, in relevant part, that “[n]o person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury.” The plaintiffs argued the statute did not apply here because the manufacturers and distributors knew the rifles could be modified, and liability arose from that modification; not the rifles’ inherent capability. The court said accepting plaintiff’s position would require rewriting the statute.—From CLM Member Michael Lowry, Wilson Elser


“Mere Possibility” of Asbestos Exposure Insufficient

Plaintiff Amos Webb was diagnosed with mesothelioma in 2018 and filed suit against numerous defendants, including General Cable, alleging that he was exposed to asbestos while working as an electrician for various employers. During his discovery deposition, Webb testified that he worked “quite frequently” with a product known as “Romex wire.” General Cable acquired the trademark for Romex brand wire in 1944. Following a full trial on the merits, a jury award was rendered in favor of the plaintiffs. However, on appeal, the Court of Appeal of California, First Appellate District, Division One, said the testimony of Webb and the plaintiffs’ California certified asbestos consultant amounted to mere speculation that “some” of the Romex wiring contained asbestos. The court concluded that plaintiffs failed to present substantial evidence that Webb was exposed to products manufactured by General Cable that contained asbestos, reversed the judgment on the jury’s award, and instructed the trial court to enter a defense verdict.—From CLM Member Trek Fulater, Goldberg Segalla


Recent Tornadoes Could Cause up to $5 Billion in Insured Losses

Tornadoes that struck in December 2021 across Kentucky, Arkansas, Illinois, Mississippi, Missouri, and Tennessee may cause up to $5 billion in insured damages, according to estimates. Fitch ratings, which notes that this type of event is unusual for December, says the tornadoes “could rival the $5 billion insured loss from the U.S. Midwest derecho event in August [2020], which was another unmodeled type of event.” Fitch says December is historically the least costly month of the year for U.S. convective storm insured losses, adding that March to June is typically the peak season for such storms. Karen Clark & Company (KCC), meanwhile, estimates insured losses of around $3 billion. KCC says the estimate includes the privately insured damage to residential, commercial, and industrial properties and automobiles. The most severe damage, KCC adds, occurred in Kentucky.—From Senior Managing Editor Phil Gusman


Rear-End Presumption in Auto Accidents Addressed

The judicially created rear-end presumption in vehicle-collision cases came before the Florida First District Court of Appeal in a November 2021 opinion. In Crime v. Looney, the trial court held the rear-end presumption in vehicle-collision cases defeated the defendant’s claim of comparative fault. The First DCA held the trial court erred in its interpretation of the rear-end presumption. In Looney, the defendant presented evidence that he was not the sole cause of the accident. As such, the First DCA held the rear-end presumption should have vanished and lost its legal effect. The First DCA adopted the reasoning from Birge v. Charron, where the Florida Supreme Court previously found that when evidence is produced from which a jury could conclude that the front driver in a rear-end collision was negligent and comparatively at fault in bringing about the collision, the presumption is rebutted and vanishes. The decision in Looney reinforced that defendants in rear-end collisions can rebut the judicially created rear-end presumption.—From CLM Member Ryan Rodriguez, Callahan & Fusco

Washington, D.C.

OSHA to Implement Vaccine Mandate

OSHA says it will begin implementing its Vaccination and Testing Emergency Temporary Standard (ETS) after the Sixth Circuit Court of Appeals recently dissolved the Fifth Circuit’s stay of the ETS. Otherwise known as the Biden administration’s vaccine and testing mandate, the ETS requires employers with 100 employees or more to develop and enforce a mandatory COVID-19 vaccination policy. Unvaccinated employees can choose to undergo weekly COVID-19 testing instead. In its order that stopped implementation of the rule, the Fifth Circuit said that, among other reasons, the rule “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the states’ police power.” The Sixth Circuit, though, dissolved the Fifth Circuit’s stay, noting in part that OSHA “has long asserted its authority to protect workers against infectious diseases.” OSHA says it will not issue citations for violating the order before Jan. 10, 2022. A comment period on the ETS ends Jan. 19, 2022.—From Senior Managing Editor Phil Gusman

New York

Legislature Considers Litigation Funding Bill

Litigation funding has become a large industry that has attached itself to the American legal system. With that development comes relationships and dynamics that did not exist before, along with the many problems they bring to our litigation system. We’re finding out that litigation funding often drives the litigation process behind the scenes. Right now, only a few states regulate the practice, but a bill before the New York State Legislature, S705, contains some interesting provisions: Litigation funding companies must be registered with the state and post a bond; litigation funding contracts must be written in plain language and must disclose in exact terms the maximum amount that the consumer will pay; a 36% maximum annual interest rate applies; prepayment of the advance is possible without penalty; no referral fees may be paid to the plaintiff’s lawyer; the litigation funding company shall have no control or influence over the litigation; and all communications remain protected under the attorney-client and work product doctrines. As of now, the bill remains in legislative committee.—From CLM Member Rosario M. Vignali, Wilson Elser

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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