Tuesday, October 27, 2015
According to a study published this week in Aon's annual benchmark analysis of hospital and professional liability, the average cost of closed claims with indemnity at U.S hospitals ($459,000) is near an all-time high. The effects of tort reform are an issue:
However, the experience of so-called tort reform states – where non-economic damages have been capped by statute – is particularly concerning. The severity of average claims in these states has been increasing faster than elsewhere. In 2008, only 2.2% of claims from tort reform states exceeded $2,000,000. By 2013, this proportion had risen to 4.1% and last year it jumped further, to 5%.
"Tort reform, though still valuable in restraining the cost of claims, provides less effective insulation to hospitals than was originally the case," said Steve Chang, healthcare claims team leader at Beazley. "The plaintiffs' bar has become very adept in maximizing the economic damages which remain uncapped. Moreover, we are finding that the distinction between tort reform and non-tort reform states is becoming increasing blurred with states such as California, Maryland and Florida, all of which are tort reform states, beginning to rival their non-tort reform counterparts."
CNN Money has the story.
Monday, October 26, 2015
Thursday, October 22, 2015
A recent NPR/ProPublica series on workers' compensation caused 10 Democratic Senators to urge action on the part of the Labor Department:
Ten ranking Democrats on key Senate and House committees are urging the Labor Department to respond to a "pattern of detrimental changes in state workers' compensation laws" that have reduced protections and benefits for injured workers over the past decade.
In a letter to Labor Secretary Thomas Perez, the lawmakers cited an investigation by NPR and ProPublica, which found that 33 states have cut workers' comp benefits, made it more difficult to qualify for benefits or given employers more control over medical care decisions.
The letter also referred to NPR/ProPublica stories last week that detailed an emerging trend of permitting employers to drop out of state-regulated workers' comp programs, write their own injury plans and limit benefits on their own.
NPR has the story.
Thursday, October 15, 2015
A Manhattan woman sued her then eight-year-old nephew for an enthusiastic hug that knocked her down and broke her wrist. A jury found the nephew was not liable. I assume the homeowner's policy was the target, but it couldn't have helped that she testified that it hurt for her to hold a plate of hors d'oeuvres. The Connecticut Post has the story.
Thursday, October 8, 2015
The Saskatchewan government has approved changes to tort and no-fault programs recommended after a review of the auto system.
Among others, the changes include:
• When an impaired driver causes a collision and is killed, allowing an innocent party or the family impacted to sue for pain and suffering or bereavement damages (No Fault and Tort coverage);
• Expanding the list of offences that trigger the ability for an innocent party to sue for pain and suffering or bereavement damages to include: criminal negligence causing death or bodily harm, criminal negligence causing bodily injury, flight from a peace officer and dangerous operation while street racing (No Fault and Tort coverage);
• Updating amounts paid for living expenses to reflect current market rates, increasing the overall amount available for assistance to those with cognitive impairment and implementing a process to regularly review the amounts for alignment with market rates (No Fault coverage);
• Ending the practice of reducing income benefits by the amount a customer receives through Canada Pension Plan (CPP) disability (No Fault coverage); and
• Ensuring Tort income benefits maintain pace with minimum wage (Tort coverage).
Canadian Underwriter has the story.
Monday, October 5, 2015
Tuesday, September 29, 2015
Sunday, September 27, 2015
Tuesday, September 22, 2015
In Florida last week, a jury hit RJ Reynolds with $14.7M in compensatory damages and $20M in punies for the death of an Air Force sergeant in another of the Engle progeny cases. The jury deliberated only a few hours. ABA Journal has the story.
Thursday, September 17, 2015
In Ontario, both major political parties, Provincial New Democrats and Conservatives, are calling for increased accountability from the Canadian Medical Protective Association (CMPA). The CMPA acts as an insurer for doctors accused of medical malpractice. Significantly, the CMPA receives massive public subsidies; approximately 81% of physician fees to CMPA are reimbursed out of tax funds. The Toronto Star has the story.
Wednesday, September 9, 2015
Tuesday, September 8, 2015
In Chavez v. 24 Hour Fitness, the Court of Appeal, Sixth Appellate District reversed the trial court's dismissal of plaintiff's case against her gym. Plaintiff was injured while working out; she sued 24 Hour Fitness for, among other counts, gross negligence. Relying on plaintiff's signed waiver, the trial court dismissed her claims.
The Court of Appeal found that plaintiffs had raised a triable issue of material fact as to whether 24 Hour’s conduct constituted gross negligence. The evidence showed regular maintenance was not performed and, on that basis, 24 Hour “failed to exercise scant care or demonstrated passivity and indifference toward results.” In addition, plaintiffs raised other triable issues of fact including the missing brackets and the owner’s manual’s requirement of weekly maintenance.
JD Supra has the story.
Wednesday, August 26, 2015
Texas is the only state in the country that has voluntary workers' compensation; employers can subscribe to it or not as they see fit. An employee of a non-subscribing employer, Kroger, as part of his duties, was mopping up a very slick substance in Kroger's bathroom. He slipped and seriously injured himself.
The Fifth Circuit certified the following question concerning the premises liability claim to the Texas Supreme Court: “Pursuant to Texas law . . . can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee's awareness of the defect eliminate the employer's duty to maintain a safe workplace?” Importantly, because Texas law forbids an employer who opts out of the workers’ compensation system from asserting an employee’s contributory negligence or assumption of the risk as a defense, if Kroger owed plaintiff a duty of care, and if it breached that duty, it would be liable for the all of the damages, regardless of plaintiff’s negligence or assumption of the risk.
The court provided the following answer to the certified question:
Under Texas law, an employee generally cannot “recover against a nonsubscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee's awareness of the defect” does not “eliminate the employer's duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee's awareness of the danger, and the [workers’ compensation act] will prohibit a nonsubscribing employer from raising defenses based on the employee's awareness.
The case is Austin v. Kroger Tex., L.P., __ S.W.3d __, 2015 WL 3641066 (Tex. June 12, 2015). Shannon Ramirez at LeClair Ryan has more in Virtual Strategy.
Friday, August 21, 2015
Tuesday, August 18, 2015
Wednesday, August 12, 2015
An Oklahoma oil field worker, employed by one company and contracted out to another, lost his thumb in an accident with a piece of machinery lacking mandatory guards. He collected workers comp from his employer and sued under the intentional tort exception to workers comp; he also sued the company for whom he was a contractor for premises liability. The Tenth Circuit affirmed dismissal of the claim against the employer, but held the premises liability claim could go forward against the contract employer:
“Oklahoma now recognizes an exception to the open and obvious doctrine where the landowner should have reasonably foreseen the harm,” the appeals court ruled.
Business Insurance has the story.
Thursday, August 6, 2015
Wednesday, August 5, 2015
Joanna Schwartz has posted to SSRN How Governments Pay: Lawsuits, Budgets, and Police Reform. The abstract provides:
For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything towards settlements and judgments entered against them. But this finding begs another question — where does the money come from, if not from individual officers? The dominant view among those who have considered this question is that settlements and judgments are usually paid from jurisdictions’ general funds with no financial impact on the involved law enforcement agencies, and many have suggested that agencies would have greater financial incentives to improve behavior were they required to pay settlements and judgments from their budgets. But, beyond anecdotal information about the practices in a few large agencies, there has been no systematic inquiry into the source of funds used by governments to satisfy suits.
In this Article, I report the results of the first nationwide study to examine how cities, counties, and states budget for and pay settlements and judgments in cases against law enforcement. Through public records requests, interviews, and other sources, I have collected information about litigation budgeting practices in 100 law enforcement agencies across the country. Based on the practices in these 100 jurisdictions, I make two key findings. First, settlements and judgments are not always — or even usually — paid from jurisdictions’ general funds; instead, cities, counties, and states use a wide range of budgetary arrangements to satisfy their legal liabilities. All told, half of the law enforcement agencies in my study financially contribute in some manner to the satisfaction of lawsuits brought against them. Second, having a department pay money out of its budget towards settlements and judgments is neither necessary nor sufficient to impose a financial burden on that department. Some law enforcement agencies pay millions from their budgets each year towards settlements and judgments, but the particularities of their jurisdictions’ budgeting arrangements lessen or eliminate altogether the financial impact of these payments on these agencies. On the other hand, smaller agencies that pay nothing from their budgets toward lawsuits may nevertheless have their very existence threatened if liability insurers raise premiums or terminate coverage as a result of large payouts. These findings should expand courts’ and scholars’ understandings of the impact of lawsuits on police reform efforts, inspire experimentation with budgeting arrangements that encourage more caretaking and accountability by law enforcement, and draw attention to the positive role local government finance officials and insurers can and do play in efforts to promote risk management and accountability in policing.
Friday, July 24, 2015
At JD Supra, Vonnetta Benjamin & Michael Sullivan of Womble Carlyle address a recent Georgia Supreme Court case:
The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al. Before the Court was the question of whether a non-party which is not “liable” to the plaintiff as a matter of law could be considered by the trier of fact as a non-party responsible, in whole or in part, for the “fault” which caused the underlying injury thus reducing the liability of the defendant by the percentage of that fault under O.C.G.A. § 51-12-33, commonly known as the Georgia Apportionment Statute. The Court’s answer was “Yes”.
The rest of the column is here.
Thursday, July 23, 2015