CM Report of Recent Decisions – 2020 Volume 4

January 13, 2021 / CM Reports

Illinois Supreme Court Creates New Law And Shows Why It Is Crucial To Argue In The Alternative

In Dameron v. Mercy Hosp., 2020 IL 125219, the Illinois Supreme Court answered a question of first impression regarding discovery in a medical malpractice case. The Court ruled that a party is permitted to redesignate an expert from an Illinois Supreme Court Rule 213(f) controlled expert subject to full disclosure to a Rule 201(b)(3) consultant not subject to full disclosure if done in a reasonable amount of time before trial and where the expert report has not been disclosed. The Court also demonstrated the “appellate wisdom” of always arguing in the alternative on appeal, instead of just trying to go for the “home run” on the main issue.

10 Tips For Securing Beneficial Amicus Support On Appeal

Amicus curiae or “friend of the court” briefs are submitted by persons or entities who are not parties to a given lawsuit. Originally intended as neutral, objective third party pieces, today’s amicus briefs usually take sides, advocating in favor of a particular party or outcome. Thousands of these amicus briefs are filed every year in cases pending before the United States Supreme Court, state supreme courts, and intermediate appellate courts throughout the federal and state judicial systems.

Florida Courts Analyze Compliance With The Civil Remedy Notice Specificity Requirement In Bad Faith Claims Under Florida Statute § 624.155(3)

In Florida first party property matters, a party may not assert a statutory bad faith action against an Insurer without first complying with the Civil Remedy Notice (CRN) requirements. The CRN is a condition precedent to asserting a statutory bad faith action and provides the Insurer an opportunity to “cure” specific bad faith allegations within 60 days of receiving notice.

Florida Federal District Court Finds Virus Exclusion Bars Covid-19 Claim Even If Plaintiffs Allege Facts Supporting Existence Of Coverage

A federal trial court in Florida recently held that “assuming for argument’s sake that Plaintiffs had alleged facts triggering coverage under the Policy, the virus exclusion would still apply to bar coverage for Plaintiffs’ losses.” Nahmad v. Hartford Cas. Ins. Co., No. 1:20-cv-22833, 2020 U.S. Dist. LEXIS 203838, at *23 (S.D. Fla. Nov. 1, 2020).

Can Policy Language Preclude Assignment Of Benefits In Florida?

Many Florida insureds choose to assign their first party property insurance policy benefits to vendors such as roofing contractors or water mitigation companies via an assignment of benefits (“AOB”). These vendors frequently work to maximize and inflate the claims, and litigate aggressively if the insurer balks at paying the inflated amount. Florida courts have routinely upheld the right of a policyholder to assign postloss benefits, and Florida insurance regulators have not permitted insurers to add language to policies excluding or preventing this right to assign postloss benefits.

New California Law Requires Common Interest Developments To Allow For At Least 25 Percent Of Units To Be Rented

Effective January 1, 2021, California law bars common interest developments from adopting or enforcing provisions in their governing documents that restrict the number of rentals to less than 25 percent of the total separate interests within a development. Assembly Bill 3182 (“AB 3182”) revises existing Civil Code § 4740 et seq., and adds an entirely new= provision, Civil Code §4741.

Out On A Limb: Ditching Collectability In Legal Malpractice Actions

No one should be surprised to learn that lawyers tend to disagree. Put two or three together, and any hopes of unanimity fade. It doesn’t change when they become judges. But generally, that’s a good thing. Disagreement usually allows for a thorough exposition of the law.

New Jersey Tough Love: Protecting Underage Adults From Themselves

A speeding car weaves through the nighttime traffic. The car’s speed is too great, the driver’s reactions too slow. The car crosses multiple lanes and hits a concrete divider. The impact ejects its unrestrained passenger. The car goes airborne, and after flipping several times lands on him. The passenger is dead at the scene; the driver survives. He is visibly intoxicated, his BAC about 0.16—twice the legal limit. Pleading guilty to vehicular homicide, the driver is sentenced to seven years in state prison. He is 20, his passenger 19.

Middleman: The Impact Of Products Liability Law On Internet Distributors

Where there’s a will, there’s a way. If nothing else, the marketplace is resilient. A few months ago, usually filled shopping centers were ghost towns. Heavily dependent on walk-in traffic, many businesses failed. Despite an improving business climate, COVID still confounds the efforts of owners to draw pre-virus customers through store doors. But some have found a way to adapt. The difference between failing and surviving businesses often is the latter’s ability to work the Internet into their operations.

Balance Of Power: Constitutional Limits On Retroactive Reviver Statutes For Child Sexual Abuse Claims

Sometimes the good news never seems as good as the bad news is bad. The good news is that the rate of sexual assault and rape has dropped by 63% since 1993. The bad news is that another American is sexually assaulted every 73 seconds. About 63,000 children annually are sexually abused, 66% between ages 12-17.

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