Tuesday, August 18, 2020
Wednesday, August 12, 2020
Tim Lytton has an editorial in USA Today: "Blanket COVID-19 liability shield for businesses is not the immunity we need in this crisis".
Tuesday, August 11, 2020
Tennessee started a special session yesterday, primarily over COVID-19 immunity. Negotiations broke down in June over whether to make the legislation retroactive to March.
Gov. Lee indicated during a press conference last week that the impasse had been resolved. As written, the bill does not appear to provide retroactive protection for the early months of the health crisis. The change in Tennessee tort law would take effect Aug. 3, and expire July 1, 2022.
As introduced, the measure would grant immunity from “civil liability for loss, damages, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence of gross negligence or willful misconduct.”
WMOT 89.5 has the story.
Monday, July 27, 2020
Wednesday, July 22, 2020
In 1975, California enacted MICRA, a law which, among other things, capped pain and suffering damages in medical malpractice cases at $250,000. In 2013, there was an unsuccessful ballot initiative to raise the cap to $1.1 million. Proponents of the "Fairness for Injured Patients Act" have collected enough signatures to again attempt to alter the cap, this time in 2022. The initiative would do three things: 1. adjust the cap for inflation, and adjust it annually thereafter; 2. allow judges and juries to exceed the cap in certain cases of catastrophic injury or death; and 3. require the cap be revealed to jurors. Insurance Journal has the story.
Thursday, July 9, 2020
Last month, I reported on a proposal by Deborah Ramirez to require police officers to carry liability insurance. The idea was to provide financial incentives to police officers to behave reasonably, in that claims against them would result in higher premiums. In New York, Senator Alessandra Biaggi has introduced a bill to make that idea the law of the jurisdiction. The Hill has the story.
Friday, July 3, 2020
In the final hours of a special session in Louisiana, the legislature passed a tort reform bill that the Governor Edwards said he would sign. He vetoed an earlier version. The impetus for the reform was automobile insurance rates: Louisiana's are among the highest in the country.
The bill makes several changes: a limitation of the collateral source rule, removal of the ban on mentioning whether a plaintiff was wearing a seat belt, limits on when the insurance company's name can be mentioned in court, and a reduction of the threshold for jury trials from $50,000 to $10,000. The last reform likely strikes many as odd. Juries have a reputation for calculating damages more liberally than judges. Defense interests in Louisiana, however, believe that juries will be more conservative than judges, and are expanding the number of cases tried to a jury. The bill does not address direct reductions in insurance rates. WWL has details.
Thursday, July 2, 2020
On Wednesday, Missouri Governor Mike Parson signed a bill overhauling that state's punitive damages regime. The bill codifies a standard of punitive damages in which the "defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others." In medical malpractice cases, the standard is more stringent, "the health care provider intentionally caused damage or demonstrated malicious misconduct. Evidence of negligence, including indifference or conscious disregard for the safety of others, does not constitute intentional conduct or malicious misconduct." The bill also requires punitive damages be proved by clear and convincing evidence. Moreover, punies may not be alleged in the complaint, but may only be added by permission of the court no later than 120 days prior to the final pretrial conference or trial date. The Missouri Times has the story.
Tuesday, June 30, 2020
On Friday, the Georgia Legislature adopted COVID-19 immunity for health care providers and businesses. The legislation provides both immunity and an assumption of risk defense if certain warnings are provided. JD Supra has details.
Friday, June 19, 2020
As the U.S. reopens from COVID-19 quarantine, it is no surprise that businesses are asking both workers and customers to sign waivers. So far, at least 6 states--Utah, North Carolina, Louisiana, Oklahoma, Arkansas, and Alabama--have created some type of COVID-19 immunity, either through legislation or executive order. This piece from The Paducah Sun discusses the debate over the waivers. One law firm is tracking cases; it found that through Monday there were 2,741 lawsuits filed in the U.S. over COVID-19. The vast majority were over government shutdown orders and which businesses were deemed essential. Only 7 cases were filed by consumers and 49 were filed by employees over exposure to the virus.
Thursday, June 18, 2020
Rick Newman, Executive Director of the American Museum of Tort Law, interviews Deborah Ramirez about her proposal to require police officers to carry liability insurance. Police departments would pay the average premium, but officers would have to pay the excess over the average. The idea is that those officers who posed great risk would be priced out of the market, and would lose their jobs. For more details, the interview is on the AMTL's website.
Tuesday, June 16, 2020
Mike Rustad has published in the Northwestern University Law Review blog Your Right to Sue, Goodnight. The gist:
The civil justice system in the U.S. has been under an unrelenting attack since the mid-1980s. For decades “business and professional interests have been claiming that American tort law is out of control, imposing unjustified costs on defendants amounting to billions and billions of dollars annually.” Now, Senator McConnell and the corporate wrongdoer lobby have the perfect Trojan Horse—using COVID-19 as a decoy so that they can enact tort reform at the federal level. The avowed purpose of McConnell’s liability shield suggestion for businesses dealing with COVID-19 is to help the economy. However, in my opinion his true purpose is to deliver tort reform at the federal level for corporate wrongdoers, who contribute mightily to the Republican Party. Those interested in protecting the right to sue in the U.S. should say good night to Mitch McConnell’s legislative proposal.
Tuesday, May 19, 2020
The American Museum of Tort Law in Winsted, Connecticut is the only museum in the United States dedicated exclusively to law. Two items recently added to its website may be of interest. First, a video in which Executive Director Rick Newman interviews Tim Lytton about COVID-19 immunity. Second, an open letter written to President Trump and members of Congress arguing that COVID-19 immunity for businesses is a bad idea.
Monday, May 18, 2020
The [Senate Judiciary [C]]ommittee focused primarily on the question of whether to give businesses immunity from lawsuits over COVID-19. That wouldn’t be a good idea. But luckily, the hearing unearthed the real remedy to reassure businesses that it’s safe to reopen: giving them clear federal rules that will protect both well-meaning business owners and the ability to hold bad actors accountable. Now it’s up to the Trump administration to make that happen.
The entire editorial is here.
Friday, May 15, 2020
Writing at the Washington Legal Foundation, Mark Behrens and Jennifer Artman discuss recent Missouri legislation on punitive damages and consumer protection. Regarding punitive damages:
The new law codifies a clear standard of liability for punitive damages. Punitive damages will now be limited to egregious cases where a “defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The standard returns punitive damages to their intentional tort roots. See Klingman v. Holmes, 54 Mo. 304, 308 (1873) (exemplary damages “where an evil intent has manifested itself”). A separate but similar standard is provided for personal injury claims against healthcare providers.
The new law also codifies the “clear and convincing evidence” burden of proof standard for punitive damages that has been applied by Missouri courts. This standard reflects the quasi-criminal nature of punitive damages by taking a middle ground between the ordinary civil standard (“preponderance of the evidence”) and the criminal law standard (“beyond a reasonable doubt”).
Tuesday, May 12, 2020
Monday, May 4, 2020
Tim Lytton, writing at The Conversation, explains "Why offering businesses immunity from coronavirus liability is a bad idea".
Updated: Today Tim published a related piece in The Regulatory Review: "Businesses that Reopen Too Soon Should be Subject to Tort Liability".
Monday, April 6, 2020
Mandy Gillip at Ballotpedia News writes:
The Supreme Court of the United States agreed to hear a case in its October 2020-2021 term concerning the Federal Tort Claims Act (FTCA). The case, Brownback v. King, came on a writ of certiorari to the United States Court of Appeals for the 6th Circuit.
In 2014, James King violently resisted arrest after being stopped by FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen. King was tried and acquitted of charges of assault with intent to do great bodily harm, aggravated assault of a police officer, and resisting arrest. He then sued the United States under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The U.S. District Court for the Western District of Michigan held Brownback and Allen had not violated King’s constitutional rights under Bivens. The district court also decided against King’s FTCA claims. On appeal, the 6th U.S. Circuit Court of Appeals reversed the district court’s ruling.
- Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1), on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.
Thursday, April 2, 2020
At JD Supra, a team from King & Spalding discusses tort immunity under the PREP Act and COVID-19 Response Declaration. The basics:
Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 17, 2020, the Secretary of Health and Human Services (“HHS”) published the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The COVID-19 Declaration immunizes broadly certain entities from “suit and liability under federal and state law with respect to all claims of loss” related to the manufacture, testing, development, distribution, administration and use of certain countermeasures to COVID-19.
Monday, March 30, 2020
Dani Wachtel (Widener Commonwealth Class of 2020) and I have posted to SSRN Raising Compulsory Automobile Insurance Minimum Amounts: A Case Study from the United States. Published in Insurance Review (Poland) as a contribution to a symposium, the abstract provides:
This article discusses a decision both European Union Member States and states in the United States must make: whether to raise their compulsory automobile insurance minimum amounts. The authors review a case study from the United States, the Commonwealth of Pennsylvania, and conclude a proposed increase in the compulsory minimum amounts should pass the legislator. The purpose of compulsory automobile insurance is to compensate victims of automobile accidents. Due to inflation, the minimum amounts in Pennsylvania no longer compensate adequately. Moreover, the data do not support the contention that an increase in the minimum amounts will cause large increases in premiums and uninsured rates. The authors conclude that compulsory minimum amounts should be periodically reviewed, as they are in the European Union, and that arguments about large increases in premiums and uninsured rates should be subjected to a careful review based on data.