January 17, 2012
Personal Injury and Insurance Law Legal Research Blog
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
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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
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).
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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.
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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
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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.
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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.
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Topics: legal research, John Buckley, Illinois, Insurance, bodily injury, class action, Seventh Circuit, Medmarc Casualty, baby bottles, Bisphenol, economic injury
