CM Report of Recent Decisions (2012v1)
2012 Volume 1
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
Articles in this report
*Minnesota Supreme Court Holds That A State May, Consistent With The Due Process Clause Of The Fourteenth Amendment, Retroactively Revive Liabilities That Had Been Long Extinguished Under A Statute Of Repose
A recent decision by the Minnesota Supreme Court in In Re: Individual 35W Bridge Litigation, 806 N.W.2d820 (Minn. 2011), has been the subject of much concern in the defense industry. The reason is simple: the Minnesota Supreme Court held that its legislature could retroactively revive the liabilities of an engineering firm (Jacobs Engineering) that were long extinguished under a Statute of Repose, without violating due process.
Marmet Health Care Center, Inc. v. Brown: Reasserting Federal Supremacy In The Arbitration Arena
In a short, almost terse, unanimous opinion, the United States Supreme Court recently reversed a decision of the Supreme Court of Appeals of West Virginia, the state's highest court, refusing to enforce arbitration clauses contained in two similar nursing home admission contracts.
A Jones Act Seaman Is Not Entitled To A Jury Trial On A Maintenance And Cure Claim That Is Not Joined With A Negligence Or Unseaworthiness Claim
In Ronald Forrest v. Omega Protein, Inc., 2011 AMC 2725 (E.D. Va. 2011), the court granted the defendant's motion to strike plaintiff's demand for a jury trial on his maintenance and cure claim which included a claim for punitive damages for a willful and wanton failure to pay maintenance and cure.
Asbestos And Mesothelioma—The UK Supreme Court's Decision In The Employers' Liability Insurance "Trigger" Litigation
In a judgment handed down on 28 March 2012, the UK Supreme Court decided that the trigger for liability under standard employers' liability policy forms is exposure to asbestos and not the onset of mesothelioma.
Extrinsic Evidence Of Defense Duty Submitted Late
A liability insurer's duty to defend typically is resolved by reference to the underlying complaint against the insured: if those allegations implicate or potentially implicate coverage under the policy, then the insurer's duty arises. In 2010, the Illinois Supreme Court deemed the foregoing the "general rule," and indicated the parties may look to facts outside the allegations of the underlying complaint to both trigger and negate the duty to defend.
Hurricane Katrina Follow Up: Fifth Circuit Holds That Post-Loss Enforceability Of Anti-Assignment Clauses In Homeowners' Policies Must Be Evaluated On A Case By Case Basis
In In Re Katrina Canal Breaches Litigation, 645 F.3d 703, 2011 AMC 2723 (5th Cir. 2011), the United States Court of Appeals for the Fifth Circuit addressed an interlocutory appeal by over 200 homeowners' insurance carriers challenging the purported assignment of policy rights to the State of Louisiana by approximately 151,000 homeowners.
Indiana Solidifies Its Treatment Of Pollution Exclusions As Generally Ambiguous
Acknowledging that "Indiana has gone in a different direction" than the two main approaches to interpreting pollution exclusions throughout the country, the Indiana Supreme Court recently attempted to cement its stance on the interpretation of pollution exclusions. In a narrow 3-2 decision, the Indiana Supreme Court thus held that an insurer should explicitly specify what falls within its pollution exclusion in order for it to be upheld.
Judge Posner's "Perspicuous Formula" For Interpreting The Pollution Exclusion
The Seventh Circuit applied existing Illinois law and held that a pollution exclusion precludes coverage for underlying suits alleging injuries caused by PCE (perchloroethylene) contamination of a municipal water supply.