CM Report of Recent Decisions – 2018 Volume 4

January 15, 2019 / CM Reports

Ohio Supreme Court Holds That Defective Subcontractor Work Is Not An “Occurrence”

In Ohio Northern University v. Charles Construction Services, Inc., Slip Opinion No. 2018-OHIO-4057, the Supreme Court of Ohio held that there was no duty to defend a policyholder, because faulty workmanship by a subcontractor was not fortuitous, and therefore did not constitute an “occurrence” under the policy.

Contingency Fees And Appraisers In Florida: Not Grounds For Disqualification

A Florida state appellate court has recently addressed the issue of whether an appraiser paid on a contingency fee is “impartial” as required by the subject policy’s appraisal provision. Brickell Harbour Condo. Ass’n v. Hamilton Specialty Ins. Co., 2018 Fla. App. LEXIS 14364 (3d Dist. Oct. 10, 2018).

“No-Recoupment” Default Rule In Restatement Of The Law: Liability Insurance Cited By Illinois Court In Support Of Ruling Dismissing Insurer Recoupment Claim

In Gilbane, Inc. v. Liberty Ins. Underwriters, Inc., (Case no. 2016CH15163) a Cook County, Illinois court dismissed an
insurer’s claim for recoupment of a $7.5 million settlement payment from its policyholder based on the equitable theory of unjust enrichment. The insurance policy at issue did not contain a provision addressing the recoupment of indemnity payments.

California’s Court Of Appeals Broadens Insurance Policy’s Coverage For Loss Of Use

A California appeals court recently broadened the interpretation of ‘loss of use’ coverage under a corporate general liability policy that will obligate insurers to provide coverage for a partial loss of use of property where there is no physical injury to tangible property. The Court’s ruling clarifies prior California decisions that a total shutdown of a premises is not required for coverage to apply.

Florida Supreme Court Decision Affirms The Frye Expert Admissibility Standard Governs In Florida Courts

Af ter more than f ive years of uncertainty, the Florida Supreme Court has settled the debate over the standard for determining the admissibility of expert witness testimony in Florida state courts. In a 4-3 decision, the high court rejected Daubert and adopted Frye. DeLisle v. Crane Co., 2018 Fla. LEXIS 1883 (Fla. 2018).

Proximate Cause Lacking In Opioid Addiction Case Against Pain Management Physician Absent Expert Testimony From An Addictionologist

In a split decision, the Illinois Appellate Court, First District holds that a medical malpractice plaintiff failed to prove proximate cause against a pain management physician where there was no evidence from an addiction expert connecting the defendant’s failure to identify the patient’s opioid addiction and her death/suicide by acetaminophen overdose.

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