<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    Personal Injury and Insurance Law Legal Research Blog

    Gale Burns

    Recent Posts

    PERSONAL INJURY & INSURANCE LAW UPDATE: Umbrella Liability Policies—Must They Provide UM/UIM Coverage?

    Posted by Gale Burns on Fri, May 4, 2012 @ 09:05 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.

    Read More

    Topics: legal research, Fred Shackelford, insurance law, umbrella liability policy, UM/UIM coverage, Apodaca v. Allstate Ins. Co., Colorado Supreme Court, does policy come within scope of statute, express language of umbrella policy provides guida

    TORTS: Negligent Misrepresentation—Economic Loss Rule

    Posted by Gale Burns on Mon, Feb 6, 2012 @ 13:02 PM

    The Lawletter Vol 36 No 7

    Read More

    Topics: legal research, Fred Shackelford, The Lawletter Vol 36 No 7, tort law, recovery for negligent representation by a contrac, negligent misrepresentation v. contract or warrant, economic loss rule

    PERSONAL INJURY LAW UPDATE: Medical Malpractice—Effect of Treatment Expense on Potential Liability

    Posted by Gale Burns on Tue, Jan 10, 2012 @ 10:01 AM

    January 17, 2012

    Read More

    Topics: legal research, Fred Shackelford, medical malpractice, effect of treatment expense on potential liability, treatment options vs. trreatment costs, health-care provider's potential liability for, standard of care, medical well-being of patient, cannot be tied to insurance company's coverage, source of payment, personal injury

    Survivor's Benefits Under the Black Lung Benefits Act

    Posted by Gale Burns on Fri, Oct 7, 2011 @ 15:10 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).

    Read More

    Topics: legal research, John Buckley, black lung benefits, survivor benefits, Patient Protection and Affordable Care Act PPACA, Black Lung Benefits Act, pneumoconiosis, derivative benefits, 15-year presumption for miner, retroactive application of continuation-of-benefit, eligibility date, insurance law, Insurance Law Update

    PERSONAL INJURY: Premises Liability—Harm Caused Off the Premises by Natural Conditions

    Posted by Gale Burns on Tue, Jun 28, 2011 @ 17:06 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.

    Read More

    Topics: legal research, Fred Shackelford, premises liability, personal injury, tree injury, potential liability, duty of reasonable care

    PERSONAL INJURY: The Effect of a Patient's Fault in Medical Malpractice Cases

    Posted by Gale Burns on Fri, Mar 25, 2011 @ 16:03 PM

    March 29, 2011

    Fred Shackelford, Senior Attorney, National Legal Research Group

    Read More

    Topics: legal research, Fred Shackelford, personal injury, comparative fault, contributory negligence, medical malpractice claim, assumption of risk, mitigation of damages

    PERSONAL INJURY: The Duty to Protect Third Parties Against Exposure to Take-Home Asbestos

    Posted by Gale Burns on Tue, Jan 25, 2011 @ 14:01 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.

    Read More

    Topics: legal research, personal injury, asbestos, Illinois Appellate Court, CSX Corporation, mesothelioma, take-home exposure

    INSURANCE: Coverage for Manufacturer's Economic Loss

    Posted by Gale Burns on Tue, Jan 25, 2011 @ 10:01 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.

    Read More

    Topics: legal research, John Buckley, Illinois, Insurance, bodily injury, class action, Seventh Circuit, Medmarc Casualty, baby bottles, Bisphenol, economic injury

    New Call-to-action
    Free Hour of Legal Research  for New Clients
    Seven ways outsourcing your legal research can empower your practice