Posted by Gale Burns on Fri, May 04, 2012 @ 08:31 AM
May 8, 2012
Fred Shackelford, Senior Attorney, National Legal Research Group
Courts in various jurisdictions have arrived at different conclusions when deciding whether umbrella insurance policies are statutorily required to provide uninsured ("UM") or underinsured ("UIM") motorist coverage. One article has summarized the case law as follows:
Although uninsured or underinsured motorist coverage is an almost universally statutorily required component of motor vehicle liability policies, the question whether "excess" or "umbrella" insurance policies are also required to provide such coverage varies jurisdictionally. Many courts addressing the issue have found that umbrella policies, which are designed to protect against an infrequent risk of catastrophic loss in the form of excess judgments, and for which proportionally low premiums are paid, do not fall within the scope of an uninsured motorist statute which was intended to apply only to primary policies . . . . Conversely, some courts have found that their uninsured motorist statutory schemes do contemplate the inclusion of umbrella policies. Those cases which consider whether an excess or umbrella policy is statutorily required to provide uninsured motorist coverage, as well as cases which consider whether coverage is provided by the terms of a policy, and, if so, at what point such coverage begins, have been collected and analyzed in this annotation.
Lisa K. Gregory, Annotation, "Excess" or "Umbrella" Insurance Policy as Providing Coverage for Accidents with Uninsured or Underinsured Motorists, 2 A.L.R.5th 922 (1992 & Westlaw database updated weekly).
This issue was recently resolved in Colorado in the case of Apodaca v. Allstate Insurance Co., 255 P.3d 1099 (Colo. 2011). In Apodaca, the insureds were covered under automobile and umbrella policies, both of which were issued by Allstate. The automobile policy included UM/UIM coverage in the amount of $100,000 per person and $300,000 per occurrence, while the umbrella policy provided $1 million in excess liability coverage for occurrences arising out of, among other things, "occupancy of a land vehicle . . . by an insured for personal transportation." Id. at 1100. The umbrella policy did not expressly provide UM/UIM coverage, and it specifically excluded coverage for "personal injury or bodily injury to an insured." Id. at 1101.
A Colorado statute requires that UM/UIM coverage be offered and included, unless rejected in writing, in any "automobile liability or motor vehicle liability policy" delivered or issued in Colorado. Colo. Rev. Stat. § 10-4-609(1)(a). The court framed the issue as whether an umbrella policy that includes supplemental liability coverage for automobiles or motor vehicles is within the scope of this statute. The court noted that an umbrella policy is a distinct type of excess liability policy, which may also provide primary coverage for certain risks that an underlying policy may not cover.
Turning to the language of the statute, the court observed that it does not purport to apply to all liability policies, but only to automobile or motor vehicle liability policies. In addition, the statute applies only to policies "with respect to any motor vehicle licensed for highway use in this state." Id. at 1105. The court viewed the statute as focusing on insurance policies that provide liability coverage for specifically identified vehicles licensed for use in the state and noted that the insureds' underlying policy designated four particular vehicles and required premiums that were calculated based on considerations specific to each vehicle. In contrast, the premium for the umbrella policy was "not tethered to specific aspects of the policyholder's automobiles or their use." Id. The umbrella policy was "not inherently tied to particular automobiles or motor vehicles, or even the activity of driving." Id. The court ruled that the umbrella policy was not the type of liability policy encompassed by the statute, stating:
But an umbrella policy is not transformed into an "automobile or motor vehicle liability policy" simply because it includes coverage for liability arising from the use of automobiles. An umbrella policy is an inherently different type of policy. As Allstate observes, it would be equally inaccurate to label the umbrella policy an "aircraft policy," "boat policy," or "homeowners policy."
Id.
The court declined to rule in favor of the insureds on the basis of public policy considerations. The court also declined to adopt a "minimum liability" analysis that some other courts have followed, whereby umbrella policies are excluded from UM/UIM statutes based on legislatures' presumed intention to offer insureds only minimum amounts of coverage. The Apodaca court noted that Colorado insureds can elect to have UM/UIM coverage in excess of minimum limits under financial responsibility laws, and it based its decision solely on the language of section 10-4-609(1)(a).
Although the court ruled that umbrella policies are not required to provide UM/UIM coverage, it did implicitly warn insurers that they cannot evade their obligation to offer UM/UIM coverage for automobile policies by disguising them as umbrella policies. The court stated:
Our holding, however, is not predicated on the superficial labeling or packaging of a policy. See, e.g., 4 New Appleman on Insurance Law Library Edition § 24.02[4] (explaining one must "analyze the policy language, rather than basing decisions on labels or headings" in determining whether a particular policy affords excess or umbrella coverage). Instead, we look to the plain language of the policy to determine whether it is fundamentally an "automobile liability or motor vehicle liability policy" within the meaning of the UM/UIM statute. An insurer could not, for example, remove an automobile liability policy from the reach of the UM/UIM statute merely by adding some coverage that is unrelated to automobiles, such as identity‑theft coverage.
Id. at 1107.
Posted by Gale Burns on Mon, Feb 06, 2012 @ 12:38 PM
The Lawletter Vol 36 No 7
Fred Shackelford, Senior Attorney, National Legal Research Group
Does the economic loss rule preclude a claim for negligent misrepresentation by one contracting party against another party to the contract? The New Hampshire Supreme Court decided this issue of first impression in Wyle v. Lees, 162 N.H. 406, ___ A.3d ___, 2011 WL 4390732 (2011) (not yet released for publication). In Wyle, the defendants hired a contractor to expand their apartment building. Although the defendants were aware that the expansion work had proceeded without the benefit of certain required permits, inspectors for the town in which the building was located ultimately informed the defendants that, except for some field changes, the site plan requirements had been satisfied.
The defendants then listed the property for sale and completed a property disclosure statement that responded "no" to the question of whether they were aware of any modifications or repairs made without the necessary permits. Prior to selling the property, one of the defendants told the plaintiff that he had done "everything the Town asked me to do." 2011 WL 4390732, at *1. Soon after the closing, the town's building inspector and fire chief inspected the property and found numerous safety code violations, which the plaintiff had to correct before occupying the site.
The plaintiff sued the defendants for negligent misrepresentation, based on the oral representation that the sellers had done "everything the Town asked" and on the written disclosure that all building modifications had been done with the necessary permits. The defendants argued that the claim was barred by the economic loss rule, which generally precludes contracting parties from pursuing tort recovery for purely economic or commercial losses associated with the contractual relationship. The rule is based on the notion that contract and warranty law is better suited than tort law to deal with purely economic loss in the commercial arena.
The
Wyle court noted that the rule is one of the most confusing doctrines in tort law and that it had never addressed the issue at hand in the context of contracting parties. The court observed that there is an inherent "tension between negligent misrepresentation, which allows for the recovery of pecuniary loss, and the economic loss rule, which forbids recovery of economic loss in tort."
Id. at *3. The court noted that other courts have sometimes distinguished negligent misrepresentation claims that involve inducement to enter a contract from cases that focus on performance of the contract. Although the court did not expressly adopt this distinction, it did find that the defendants' misrepresentations had induced the plaintiff to sign the contract and that he could recover economic loss damages.
Posted by Gale Burns on Tue, Jan 10, 2012 @ 09:43 AM
January 17, 2012
Fred Shackelford, Senior Attorney, National Legal Research Group
As the cost of medical treatment in the United States continues to increase, health-care providers and patients must often weigh the costs and benefits of various treatment options in deciding what course of treatment to follow. Until recently, there was apparently little or no case law directly addressing the effect of treatment cost considerations on a health-care provider's potential liability for medical malpractice.
However, in Murray v. UNMC Physicians, 282 Neb. 260, ___ N.W.2d ___, 2011 WL 4104935 (2011), the court addressed the novel issue of whether the standard of care in a medical malpractice action may be affected by the cost of treating a patient. In Murray, a patient had been suffering from pulmonary arterial hypertension, a chronic condition in which blood vessels in the lungs constrict, causing pressure on the heart that can cause heart failure. The condition can be treated by a vasodilator known as Flolan, but this treatment costs roughly $100,000 per year, and if this treatment is begun, it must generally be continued for the rest of the patient's life. If the treatment is discontinued, pulmonary blood pressure rebounds and can be life-threatening. In Murray, the treating hospital's practice was to wait for the patient's insurance company to approve the treatment before beginning it, as most patients cannot afford the drug and it is more dangerous if treatment is started and then stopped. Unfortunately, Mrs. Murray died before the Flolan treatment was begun, and a medical malpractice complaint asserted that treatment should have been started before obtaining insurance approval.
At trial, the defendant hospital presented witnesses who testified that the standard of care required finding some source of payment for the Flolan treatment but that if insurance was unavailable, it was usually possible to find some other payment on a "compassionate need basis" within the 12-week period that was purportedly appropriate for treating the condition. The jury returned a general verdict for the hospital, but the trial court granted a motion for new trial, concluding that "a medical standard of care cannot be tied to or controlled by an insurance company or the need for payment." 2011 WL 4104935, at *3. The trial court added:
The "bean counters" in an insurance office are not physicians. Medicine cannot reach the point where an insurance company determines the medical standard of care for the treatment of a patient. Nor, can we live in a society where the medical care required is not controlled by the physicians treating the patient. The position advanced by [UNMC's] expert tells us that the standard of care is different for those with money than for those without. This is neither moral nor just. It is wrong.
Id.
On appeal, the Murray court noted that the issue of whether a medical standard of care can appropriately be premised on cost considerations was a matter of first impression in Nebraska. Furthermore, the "parties have not directed us to (nor are we aware of) any other authority speaking directly to that issue." Id. at *6. (However, the court noted that a number of commentators have addressed the issue in various legal publications.) The court observed that, in general, identification of the standard of care is a question of law, while the issue of whether a party breached the standard and was negligent is an issue of fact. Id. "Malpractice," the court reiterated, is defined as a "failure to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of [the] profession engaged in a similar practice." Id.
The Murray court concluded that the trial court had erroneously granted a new trial, for three reasons. First, the trial court had misunderstood a defense expert's testimony to mean that treatment was required by the standard of care regardless of how it was to be paid for. Instead, the expert's basic opinion was that because of the risks associated with interruption of treatment, the standard of care requires a doctor to make sure that a payment source is in place before beginning Flolan treatment.
Second, the standard of care is mandated by statute, and the defense witnesses testified that the hospital's policy was consistent with the statutory standard inasmuch as other health-care providers in the same or similar communities also deferred Flolan treatment until payment for a continuous supply had been secured.
Finally, the Murray court decided that the trial court's concerns about health-care policy had been misplaced "in a situation in which the patient's ability to continue to pay for treatment [was] still a medical consideration." Id. at *7 (court's emphasis). The court found that there was no evidence that the decision to defer treatment had been based on the hospital's concern for its own financial interests. The hospital's "physicians were weighing the risk to Mary's health of delaying treatment against the risk to Mary's health of potentially interrupted treatment." Id. (court's emphasis). The court compared the defendants' medical decision in Mary's case to other situations in which treatment decisions might be based upon the patient's individual circumstances:
As explained by Murphy, Thompson, and Johnson, the reason for waiting to begin Flolan until after insurance approval had been obtained was out of concern for the health of the patient. That was not meaningfully different from any number of other circumstances in which a health care provider might have to base a treatment decision upon the individual circumstances of a patient. For instance, a physician with concerns about a particular patient's ability to follow instructions, or report for appropriate followup care, might treat the patient's condition differently in the first instance. And a health care provider who is told that a patient cannot afford a particular treatment may recommend a less expensive but still effective treatment, reasoning that a treatment that is actually used is better than one that is not. These are difficult decisions, and there may be room to disagree, but it is hard to say they are unreasonable as a matter of law, or that an expert cannot testify that such considerations are consistent with the customary standard of care.
Id.
The Murray court noted that the plaintiff's witnesses had been free to disagree with the defendants' experts as to whether the standard of care required more than those experts had said it did. Moreover, the evidence might have shown that in light of the patient's deteriorating condition, there was little risk in beginning Flolan treatment before securing a payment source. Id. at *8. Thus, the jury could have found that the standard of care required Flolan to have been administered immediately, but the trial court had erred in concluding that it should have directed a verdict on the standard of care. Id.
The Murray court characterized its holding as being limited, stating that it was not deciding "whether the standard of care can or should incorporate considerations such as cost control or allocation of limited resources." Id. The court added:
Although the decision (or lack thereof) of a third‑party payor contributed to the circumstances of this case, UNMC's decisions were still (according to its evidence) premised entirely upon the medical well‑being of its patient. In a perfect world, difficult medical decisions like the one at issue in this case would be unnecessary. But we do not live in a perfect world, and we cannot say as a matter of law that UNMC's decisions in this case violated the standard of care.
Id.
The Murray decision may well be the first of many cases that will grapple with the issue of how cost considerations may affect the standard of care in medical malpractice cases. As health-care costs continue to rise and exert pressure on the resources of private and governmental insurance sources, it is likely that this issue will be addressed in many jurisdictions in the future.
Posted by Gale Burns on Fri, Oct 07, 2011 @ 02:54 PM
October 11, 2011
Suzanne Bailey
Perhaps the only provision of the Patient Protection and Affordable Care Act ("PPACA"), Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010), not to have received widespread attention is a provision amending the Black Lung Benefits Act ("BLBA"), 30 U.S.C. §§ 901–944, to effectively reinstate the right of survivors of miners who died disabled by pneumoconiosis, or black lung disease, to collect derivative benefits under certain conditions, a right which was abolished in 1981.
The black lung benefits program was enacted originally as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 83 Stat. 792, 30 U.S.C. § 901 et seq., to provide benefits for miners totally disabled due at least in part to pneumoconiosis arising out of coal mine employment, and to the dependents and survivors of such miners.
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 683‑84 (1991) (emphasis added). Congress amended Title IV of the FCMHSA in 1972—at which time it was redesignated as Title IV of the BLBA—and again in 1977, in an effort to liberalize the statutory criteria for entitlement to benefits. Id. at 685-89. In particular, the 1972 amendments added BLBA § 411(c)(4), 30 U.S.C. § 921(c)(4), which created a "fifteen year presumption"—for miners' claims, but not for survivors' claims—that a miner who had been employed for at least 15 years in underground coal mines and who had suffered from a totally disabling respiratory or pulmonary impairment was rebuttably presumed to have been totally disabled by pneumoconiosis, to have died due to pneumoconiosis, and to have been totally disabled by pneumoconiosis at the time of his or her death. 501 U.S. at 686. The 1977 amendments added BLBA § 422(l), 30 U.S.C. § 932(l), which provided: "In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under this title at the time of his or her death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner." Pub. L. No. 95-239, 92 Stat. 95, § 7(h) (Mar. 1, 1978). The addition of this language gave survivors an additional path to benefits besides proving that the miner's death had been due to pneumoconiosis or that the miner had been totally disabled by the disease at the time of death; survivors were automatically entitled to "derivative benefits" if the miner had been awarded black lung disability benefits during his or her lifetime. See Pothering v. Parkson Coal Co., 861 F.2d 1321 (3d Cir. 1988).
What Congress gave in the 1972 and 1977 amendments to the BLBA, Congress took away in 1981 amendments to the Act. Section 422(l), 30 U.S.C. § 932(l), was amended to add the following language: "except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981." Pub. L. No. 97-119, 95 Stat. 1635, § 203(a)(6) (Dec. 29, 1981). In addition, the amendments eliminated certain statutory presumptions, including the 15-year presumption, id. § 202(b)(1)–(2), and foreclosed the ability of survivors to obtain benefits by proving that the miner had been totally disabled at the time of death, id. § 203(a)(4). These amendments changed the law in two fundamental ways for survivors: "[F]irst, they made clear that a miner's survivor would now have to prove that the miner's death was caused by pneumoconiosis; second, they made explicit that the new evidentiary requirements would apply only to those . . . miners' survivors who filed claims after the 1981 amendments became effective." Pothering, 861 F.2d at 1327.
In a few short sentences, the PPACA struck the 1981 amendments with respect to claims filed after January 1, 2005 that were still pending on or after March 23, 2010. Section 1556 of the PPACA provides in its entirety:
(a) REBUTTABLE PRESUMPTION.—Section 411(c)(4) of the Black Lung Benefits Act (30 U.S.C. 921(c)(4)) is amended by striking the last sentence.
(b) CONTINUATION OF BENEFITS.—Section 422(l) of the Black Lung Benefits Act (30 U.S.C. 932(l)) is amended by striking ", except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981".
(c) EFFECTIVE DATE.—The amendments made by this section shall apply with respect to claims filed under part B or part C of the Black Lung Benefits Act (30 U.S.C. 921 et seq., 931 et seq.) after January 1, 2005, that are pending on or after the date of enactment of this Act.
PPACA § 1556, 124 Stat. at 260. "Section 1556 of the PPACA amended the BLBA by resurrecting . . . the '15-year presumption' and making it applicable to claims filed after January 1, 2005, that were still pending on or after March 23, 2010." Keene v. Consol. Coal Co., 645 F.3d 844, 847 (7th Cir. 2011).
The revival of the availability of derivative benefits after more than 20 years raises many questions. Initial decisions on the propriety of retroactivity have favored the retroactive application of the amendments. In Keene, the Seventh Circuit Court of Appeals rejected the assertion of the coal mine operator-employer that the retroactive application of the 15-year presumption to survivors' claims violated due process and was an unconstitutional taking. Id. at 849-51; see also Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 479 (6th Cir. 2011) (reversing decision of the Benefits Review Board ("BRB") denying the miner's application for benefits and remanding for application of the 15-year presumption resurrected by the PPACA). Likewise, in two decisions, the BRB, the administrative board that hears administrative appeals of black lung decisions, has reached the same conclusion with respect to the retroactive application of the continuation-of-benefits amendment to § 932(l) to claims filed after January 1, 2005. Stacy v. Olga Coal Co., BRB No. 10-0113 BLA (Dec. 22, 2010), http://www.dol.gov/brb/decisions/blklung/published/10‑0113.htm; Mathews v. United Pocahontas Coal Co., BRB No. 09-0666 BLA (Sept. 22, 2010), http://www.dol.gov/brb/decisions/blklung/published/09‑0666.htm. Both Stacy and Mathews are currently pending before the Fourth Circuit Court of Appeals. Stacy is scheduled for oral argument on October 25, 2011. Oral Argument Notification, Stacy v. Olga Coal Co., No. 11-1020 (4th Cir. Aug. 22, 2011.) Mathews is being held in abeyance, pending a decision in Stacy. Order, Mathews v. United Pocahontas Coal Co., No. 11-1620 (4th Cir. June 28, 2011).
Another question presented is the eligibility date for an award of survivor's benefits brought under the PPACA amendments. The relevant Regulation states that "[b]enefits are payable to a survivor who is entitled beginning with the month of the miner's death, or January 1, 1974, whichever is later." 20 C.F.R. § 725.503(c). Because the Regulations specifically state that "[t]here is no time limit on the filing of a claim by the survivor of a miner[,]" id. § 725.308(a), it is not inconceivable that a survivor who never attempted to establish benefits following the 1981 amendments could now file for benefits, under the PPACA amendments, based on a miner's death as far back as 1982. Will the Office of Workers' Compensation Programs ("OWCP") of the Department of Labor apply section 725.503(c) across the board, or will the OWCP promulgate Regulations that limit the right of survivors who sat on their hands to recover derivative benefits under the recent amendments?
What about survivors who unsuccessfully attempted to prove eligibility under the 1981 amendments and who then file a subsequent claim under the PPACA amendments? Under the current Regulations, the survivor is not entitled to benefits "for any period prior to the date upon which the order denying the prior claim became final." Id. § 725.309(d)(5). Is it fair that a survivor who made no effort to seek benefits during the time when the 1981 amendments were in effect should be awarded benefits going back to the date of the death of the miner, while the recovery of a survivor who diligently pursued his or her rights during that period but was not successful until the filing of a subsequent claim under the PPACA amendments should be limited to a period going back no further than the date denying the prior claim? Hopefully these and other questions will be resolved by the promulgation of new Regulations enforcing the amendments.
Posted by Gale Burns on Tue, Jun 28, 2011 @ 04:08 PM
July 5, 2011
Fred Shackelford, Senior Attorney, National Legal Research Group
Traditionally, a premises owner was generally not liable to persons outside the premises for harm caused by natural conditions. Under Restatement (Second) of Torts ["Restatement (Second)"] § 363, liability was limited to situations in which the premises owner's tree injured a person who was using a public highway in an urban area. However, the trend in recent years has been to expand the scope of the owner's liability. Under § 54(b)(1) of the Restatement (Third) of Torts, a possessor of commercial land owes a general duty of reasonable care to protect persons and property off the premises. In addition, § 54(b)(2) provides that a possessor of noncommercial land has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.
In a recent decision, the New Hampshire Supreme Court expanded an owner's liability beyond the limited traditional rule but stopped short of adopting the rule of § 54(b)(2). In Pesaturo v. Kinne, 161 N.H. 550, 2011 WL 723138 (2011), the plaintiff alleged that two of the defendant's trees overhung her property. One tree limited the use of her driveway, while the other tree damaged her fence. She brought nuisance and negligence claims, which were dismissed by the trial court.
On appeal, the Pesaturo court followed precedent and affirmed dismissal of the nuisance claim because the defendant had not contributed to the existence of the tree. Cf. Restatement (Second) § 840 (failure to abate harmful natural condition of land). However, the court recognized that a premises owner's duty in negligence may extend beyond the borders of his or her property. The court adopted the reasoning of a New Hampshire federal court, which had held that owners and occupiers of land owe a duty of reasonable care under all the circumstances in the maintenance and operation of their property. See Grant v. Wakeda Campground, 631 F. Supp. 2d 120, 124 (D.N.H. 2009). The Pesaturo court noted that other jurisdictions have held that a landowner who knows that a tree on his or her property is decayed or defective has a duty to eliminate that danger. Although such cases have involved trees that actually fell, the court stated that this is not a requirement for negligence liability.
The plaintiff's amended complaint alleged that the defendant's pine tree had caused harm in two ways: (1) because of insufficient management and the effect of rain, wind, ice, and snow, limbs had broken off and damaged her fence; and (2) the root system had extended onto her property and caused her to trip. She also alleged that the defendant's oak tree had swinging, dead limbs that hung over her driveway and prevented her from using it. In deciding whether the premises owner could be held liable, the court considered "whether the social importance of protecting the plaintiff's interest outweighs the importance of immunizing the defendant from extended liability." 2011 WL 723138, at *3. The court ruled that the premises owner's duty would arise only with respect to trees that are known to be decayed or defective, but it did not restrict liability to its traditional scope of highways in urban areas. The court stated:
[W]e are persuaded that because there is a foreseeable risk of injury when a tree is decayed or defective, a landowner who knows or should know that his tree is decayed or defective has a duty to maintain the tree to eliminate this dangerous condition. Thus, we hold that a landowner who knows or should know that his tree is decayed or defective and fails to maintain the tree reasonably is liable for injuries proximately caused by the tree, even when the harm occurs outside of his property lines. See Ivancic v. Olmstead, 66 N.Y.2d 349, 497 N.Y.S.2d 326, 488 N.E.2d 72, 73 (1985), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 658 (1986); Kellner, 145 N.H. at 200, 761 A.2d 421. However, a landowner does not have a duty to "consistently and constantly check all trees for nonvisible decay." Ivancic, 497 N.Y.S.2d 326, 488 N.E.2d at 73. "Rather, the manifestation of [the tree's] decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm." Id. at 73, 74.
Id. at *4.
Turning to the plaintiff's allegations, the court ruled that there was no liability with respect to the pine tree, because the plaintiff had not alleged that it was decayed or defective. On the other hand, there was potential liability for the oak tree because the plaintiff had alleged that the owner knew of its swinging, dead limbs. The court raised, but did not address, an interesting issue with respect to self-help, stating that "we express no opinion on the issue of whether the availability to the plaintiff of a self‑help remedy, i.e., cutting down the offending overhanging tree branches herself, would defeat the plaintiff's negligence cause of action or constitute a defense to the same." Id. at *5.
The Pesaturo case is one of many decisions that have addressed the issue of liability for injuries caused by trees. See generally Thomas R. Trenkner, Annotation, Liability of Governmental Unit for Injuries or Damage Resulting from Tree or Limb Falling onto Highway from Abutting Land, 95 A.L.R.3d 778 (1979 & Westlaw database updated weekly); F.S. Tinio, Annotation, Rights and Liabilities of Adjoining Landowners as to Trees, Shrubbery, or Similar Plants Growing on Boundary Line, 26 A.L.R.3d 1372 (1969 & Westlaw database updated weekly); M.C. Dransfield, Annotation, Liability for Injury or Damage by Tree or Limb Overhanging Street or Highway, 54 A.L.R.2d 1195 (1957 & Westlaw database updated weekly).
Posted by Gale Burns on Fri, Mar 25, 2011 @ 03:09 PM
Courts in many jurisdictions have grappled with the issue of whether a patient's contributory negligence or comparative fault affects recovery in medical malpractice claims. Sometimes the answer is essentially dictated by the terms of a statute, as in Shinholster v. Annapolis Hosp., 685 N.W.2d 275 (Mich. 2004), in which the court ruled that a patient's failure to take prescribed medication for at least a year before her visits to an emergency room constituted a proximate cause of her death, thereby reducing the defendants' percentage of liability. Conversely, many courts have ruled that comparative fault principles do not apply in cases of statutory liability for violating the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd. E.g., Griffith v. Mt. Carmel Med. Ctr., 842 F. Supp. 1359, 1364-65 (D. Kan. 1994); Heimlicher v. Steele, 615 F. Supp. 2d 884, 915-16 (N.D. Iowa 2009); Pike v. Decatur Mem. Hosp., No. 1:04-cv-391-JDT-TAB, 2007 WL 1299432, at *10 (S.D. Ind. May 1, 2007) (relying on Indiana medical malpractice law); cf. Gestring v. Mary Lanning Mem. Hosp. Ass'n, 613 N.W.2d 440, 452 (Neb. 2000) (EMTALA involves strict liability, and tort principles do not apply); Burrows v. Redbud Cmty. Hosp. Dist., 187 F.R.D. 606, 611 (N.D. Cal. 1998) (same); Lane v. Calhoun-Liberty County Hosp. Ass'n, 846 F. Supp. 1543, 1552 (N.D. Fla. 1994) (same); Stevison ex rel. Collins v. Enid Health Sys., Inc., 920 F.2d 710, 713 (10th Cir. 1990) (EMTALA involves strict liability); McLaurin v. District of Columbia, Civ. A No. 92-2742 NHJ/DAR, 1993 WL 547193 (D.D.C. Oct. 21, 1993) (same); Battle v. Mem. Hosp. at Gulfport, 228 F.3d 544 (5th Cir. 2000) (discussing EMTALA and comparative fault but not directly addressing the issue). But see Smithson v. Tenet Health Sys. Hosps., Inc., Civ. Action No. 07-3953, 2008 WL 4544365, at *6 (E.D. La. Oct. 10, 2008); Clark v. Baton Rouge Gen. Med. Ctr., 94-2239 (La. App. 1 Cir. 6/23/95); 657 So. 2d 741.
When the result is not determined by statute, the answer often depends on when the patient's conduct occurs in relation to the defendant's malpractice. If a patient carelessly injures himself, his negligence does not usually affect the liability of a health-care provider who negligently treats the injury. In such cases, the patient's carelessness merely creates a condition that brings the patient to the provider, and the focus remains solely on whether the physician or other provider treated the patient properly.
If a patient's negligence occurs during the treatment period, it sometimes affects recovery. For example, if a patient provides incorrect information as to his health history or the circumstances of his accident or injury, this may affect recovery. E.g., Rochester v. Katalan, 320 A.2d 704 (Del. 1974) (patient deliberately misled doctor as to patient's consumption of drugs and alcohol). See generally Caroll J. Miller, Annotation, Patient's Failure to Reveal Medical History to Physician as Contributory Negligence or Assumption of Risk in Defense of Malpractice Claim, 33 A.L.R.4th 790 (1984 & Westlaw updated weekly).
When a patient's negligence occurs after treatment, recovery may be reduced on the grounds of contributory negligence, comparative fault, failure to mitigate damages, or assumption of risk. E.g., Dennis v. Jones, 928 A.2d 672 (D.C. 2007) (because of the disparity in knowledge between a doctor and his patient, the defense of assumption of risk is rarely available in medical malpractice cases; however, the defense may be sustained where the patient was specifically warned about a risk and refused to follow the doctor's instructions); De Vooght v. Hobbs, 593 S.E.2d 868 (Ga. Ct. App. 2004) (in medical malpractice action alleging that physician had been negligent in failing to perform a tubal ligation on patient when she delivered twins, evidence that patient had not brought tubal ligation consent form to hospital as instructed and that she had missed her six-week postoperative appointment with physician through no fault of his was sufficient to warrant jury instruction on patient's duty to mitigate damages); Moller v. Lipov, 856 N.E.2d 664 (Ill. App. Ct. 2006) (in wrongful death and survival action brought by executor of patient's estate against physician and medical group, whether patient's failure to follow physician's instructions to return for further examination if mass in breast grew or if breast pain increased had contributed to delayed diagnosis and treatment of breast cancer, and whether patient was therefore comparatively negligent, was question for jury); Bayless v. Boyer, 180 S.W.3d 439 (Ky. 2005) (in medical malpractice action brought by and on behalf of minor patient against emergency room physician and radiologist, based on defendants' alleged failure to timely diagnose and treat wrist fracture, comparative negligence instruction was warranted by evidence that patient waited 66 days between treatment in emergency room and decision to seek follow-up care, during which time he continued to play baseball and otherwise led very active life).
On the other hand, if a mentally disturbed patient commits suicide during or soon after treatment by a psychiatrist, a court may find that recovery is not affected, because the psychiatrist has a duty to protect the patient from self-inflicted injury. E.g., McNamara v. Honeyman, 546 N.E.2d 139 (Mass. 1989); Cowan v. Doering, 545 A.2d 159 (N.J. 1988). See generally Kurtis A. Kemper, Annotation, Contributory Negligence or Comparative Negligence Based on Failure of Patient to Follow Instructions as Defense in Action Against Physician or Surgeon for Medical Malpractice, 84 A.L.R.5th 619 (2000 & Westlaw updated weekly); Kurtis A. Kemper, Annotation, Contributory Negligence, Comparative Negligence, or Assumption of Risk, Other than Failing to Reveal Medical History or Follow Instructions, as Defense in Action Against Physician or Surgeon for Medical Malpractice, 108 A.L.R.5th 385 (2003 & Westlaw updated weekly).
The issue of a patient's comparative fault was addressed in a recent Oregon decision, Son v. Ashland Cmty. Healthcare Servs., 244 P.3d 835 (Or. Ct. App. 2010). In that case, a 16-year-old girl apparently attempted to commit suicide by consuming alcohol, cocaine, and various medications. She died while being treated in a hospital, and the defendants raised comparative fault defenses based on (1) the patient's consumption of dangerous substances, (2) her failure to accurately tell her family, nurses, or the defendants what substances she had consumed, and (3) her father's failure to take adequate preventive measures after learning of an earlier suicide attempt. The court ruled that the patient's consumption of dangerous substances would not affect recovery because "the focus in a medical malpractice case is on the injury caused by the negligent treatment, not the original injury that created the need for treatment." Id. at 843. As for the patient's failure to disclose information, including the fact that she had ingested Propacet medication, the court found that this nondisclosure was a valid defense. The court reasoned that the defendant physicians might have been able to save the patient's life if they had known about the Propacet. Id. at 841. With regard to the father's alleged failure to supervise his daughter, the court concluded that the father's conduct had no effect on recovery because it only contributed to the condition for which treatment was sought. Id. at 847.
In summary, counsel in medical malpractice cases should consider the potential impact of a patient's acts or omissions. The timing of the patient's alleged fault may well be a significant factor in determining whether recovery will be affected.
Posted by Gale Burns on Tue, Jan 25, 2011 @ 01:53 PM
August 6, 2010
Fred Shackelford, Senior Attorney, National Legal Research Group
In a case of first impression in Illinois, an appellate court held recently that an employer has a duty to protect an employee's family members from exposure to asbestos that the employee brings home on his or her clothing. In Simpkins v. CSX Corp., 401 Ill. App. 3d 1109, 929 N.E.2d 1257 (Ill. App. Ct. 2010), a railroad worker's wife contracted mesothelioma. She filed suit against her husband's employer, alleging that the employer had breached its duty to her to take precautions to protect her from take-home asbestos exposure. The wife ultimately died from the disease, and an administratrix was appointed and substituted as plaintiff. The trial court dismissed the suit on the ground that the employer had no duty to protect its employee's family. The Illinois Appellate Court for the Fifth District reversed that decision and remanded the case for further proceedings.
The defendant in Simpkins argued that Illinois law did not recognize a duty owed to families of its employees. It claimed that because no Illinois court had previously recognized such a duty, allowing the plaintiff's case to go forward would amount to the creation of a new cause of action, which was the province of the appellate courts, not the trial courts. The trial court acquiesced to that argument and dismissed the case. The fifth district rejected that contention, as there is no prerequisite that an appellate court decide cases of first impression.
The fifth district recognized the conflicting opinions in other jurisdictions on the "take-home" asbestos theory. The court then applied Illinois law, where the existence of a duty depends on the parties' relationship to each other. Whether a relationship between the parties "will justify the imposition of a duty depends upon four factors: (1) the foreseeability of the harm, (2) the likelihood of the injury, (3) the magnitude of the burden involved in guarding against the harm, and (4) the consequences of placing on the defendant the duty to protect against the harm." 929 N.E.2d at 1262. The court found the out-of-state cases finding a duty in similar circumstances to be more persuasive.
With respect to the foreseeability factor, the defendant argued that its predecessor did not know of the dangers of take‑home asbestos while the decedent's husband worked there. The court rejected that argument because the test is not whether the employer actually foresaw the risk to the wife but whether it should have foreseen the risk. It held that the risk was reasonably foreseeable.
As for the second factor, the court noted that the likelihood of contracting mesothelioma through take-home exposure varies depending on the duration of exposure. The complaint alleged facts supporting the conclusion that the magnitude of the harm was great. The wife eventually died from her asbestos‑related cancer. Thus, according to the court, "the likelihood of serious or fatal injury to anyone foreseeably exposed to asbestos is substantial enough to warrant the imposition of a duty." Id. at 1264.
In analyzing the third factor, the court found that the burden involved in guarding against take‑home asbestos exposure was not unduly onerous when compared to the nature of the risk. The complaint alleged a number of ways the employer could have reduced the risk of exposure, and the defendant offered no real argument regarding the burden that implementing any of the practices alleged would have placed on it.
As for the consequences of placing the burden on employers, the court rejected the defendant's argument that the recognition of a duty under the circumstances presented would expose employers to limitless liability to everyone in the world. It reasoned that the focus on foreseeability provided an acceptable limitation on employers' potential liability. The court noted further that the only question before it was whether employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure. The court did not expressly limit the duty to immediate family members, however. Instead, it said that "[s]hould a proper case arise, we can consider whether the duty extends to others who regularly come into contact with employees who are exposed to asbestos‑containing products." Id. at 1266.
Thus, after consideration of the factors used to determine duty under Illinois law and a review of out-of-state authorities, the court held that the wife was entitled to the exercise of care from her husband's employer. This did not, however, relieve the plaintiff of the burden of proving her case, as the only question decided on appeal was whether the plaintiff's complaint sufficiently stated a cause of action under Illinois law.
Posted by Gale Burns on Tue, Jan 25, 2011 @ 09:52 AM
October 20, 2010
Suzanne Bailey, Senior Attorney, National Legal Research Group
A recent decision from the Seventh Circuit Court of Appeals strikes a cautionary note for plaintiffs who want the assurance that any damages they recover will be covered by insurance. In Medmarc Cas. Ins. Co. v. Avent Am., Inc., 612 F.3d 607 (7th Cir. 2010), liability insurance carriers brought an action against the insured, a manufacturer of baby bottles, for a declaration under Illinois law that the insurers had no duty to defend and indemnify the manufacturer in multidistrict class actions brought by parents seeking damages for the presence of Bisphenol‑A ("BPA") in certain products. A large body of research has shown that BPA can be harmful to humans, especially children. Significantly, the plaintiff-parents did not allege that they had used the products and that their children had suffered physical harm or could suffer physical harm in the future. Rather, the parents asserted that they had purchased the offending products and had then disposed of them when they learned of the presence of BPA. The trial court allowed the plaintiffs to go forward on their economic injuries claim. The relevant insurance policies, however, covered "bodily injury," not economic damages.
Before addressing whether the complaints alleged bodily injury sufficient to give rise to a duty to defend, the court addressed the insurers' argument that the manufacturer was judicially estopped from arguing that the complaints stated claims for bodily injury, since it had argued otherwise in its motions to dismiss and the court had agreed with it. The court acknowledged the merit of the manufacturer's argument that its position in the motion to dismiss was distinguishable from its stance in the declaratory judgment action. In the motion to dismiss, the manufacturer had argued that the complaints did not state claims for damages "for bodily injury." However, the language of the insurance policies was broader because it covered damages "because of bodily injury." The court recognized that an insured who is forced to defend itself when the insurer refuses to defend may be forced to take positions that appear to take it out of the coverage of the insurance contract. Because the manufacturer's position in the motion to dismiss was not in direct tension with its position in the declaratory judgment action, the court found that estoppel was inappropriate.
Nonetheless, the court ultimately found that there was no duty to defend and indemnify, because even if the plaintiffs proved every factual allegation in the complaints, they could not collect for bodily injury. The court concluded that the omissions of allegations of physical injury were not mere whims but were part of the plaintiffs' strategy. Even considering the broader duty to defend created by the phrase "because of bodily injury," as opposed to the more restrictive phrase "for bodily injury," the court determined that the complaints still fell short of factual allegations that would require coverage. It rejected an argument, triggered by two unpublished decisions in other jurisdictions, that a duty to defend exists if the complaint can be amended at some point in the future to bring the claims within the insurance coverage.