CM Report of Recent Decisions – 2022 Volume 2

July 14, 2022 / CM Reports

Gallardo v. Marstiller, No. 20-1263 (U.S. 6-6-22)—A Possible Chilling Effect On Personal Injury Litigation Brought By Medicaid Beneficiaries

In Gallardo, the United States Supreme Court held that the Medicaid Act permits a State to seek reimbursement from tort settlement payments or judgments allocated for future medical care. This could cause Medicaid beneficiaries and their personal injury lawyers to think twice before undertaking personal injury litigation depending on the size of the case and the amount of the expected state reimbursement.

COVID-19 Casualty Update: California Supreme Court Denies Review Of Appellate Decision That COVID-19 Death Suit May Proceed Against Widow’s Employer, But Accepts Certified Questions From 9th Circuit

In Volume 4 of our 2021 CM Report, I discussed See’s Candies, Inc. v. Superior Court, 73 Cal. App. 5th 66 (2021), and analyzed the ramifications for future litigation arising from this decision. In See’s Candies, the Court held that a plaintiff’s employer must face a lawsuit alleging that plaintiff contracted COVID-19 at work and infected her husband, causing his death.

New Florida Legislation Enacted Addressing Property Insurance Crisis

At the end of a special session called to address the growing insurance crisis within the state, the Florida Legislature passed two bills, Senate Bill 2-D and Senate Bill 4-D, that were signed into law by Governor DeSantis on May 26, 2022. The new legislation is directed toward the conditions developing within Florida’s insurance market that prompted the call for a special legislative session in the first place, including rising premiums, carrier insolvencies, and the high rate of property insurance lawsuits. The short- and long-term effects of the legislation are uncertain, but insurance carriers and their counsel must be aware of these changes and how they will alter the property insurance landscape moving forward.

The Decline Of The Proposal For Settlement

In the four decades since the Florida Legislature passed the offer of judgment statute, Fla. Stat. § 768.79, the Proposal for Settlement (“PFS”) has become an indispensable part of many litigants’ toolkits. In concert with the Florida Legislature, the Florida Supreme Court sought to implement the procedural framework for the PFS through Fla. R. Civ. P. 1.442 to help achieve the intended goal of reducing litigation. New changes will dramatically alter the legal landscape.

Update: Insurers Continue To Succeed On Appeal On COVID-19 Property Claims

The body of federal and state appellate precedent keeps growing, with nearly every appellate tribunal holding that there is no property insurance coverage for pandemic related economic losses in the absence of physical loss or damage.

Spotlight On PFAS: Fall 2022 PFAS National Drinking Water Regulations And The Ensuing Impact On Insurance Coverage

Per- and polyfluoroalkyl substances (PFAS) are commonly referred to as “forever chemicals” because of their persistence, widespread distribution in the environment, and potential human-health impacts. Since they were first created in the 1940s, over 6,300 different chemicals have been produced within this class of compounds, with common names such as Teflon and GORE-TEX, and are found in a variety of products, including carpets, leather, paints, cleaners and firefighting foams. Nearly every American has forever chemicals in their blood, according to the U.S. Centers for Disease Control and Prevention.

Client Alert: Cook County Judge Rules Illinois Prejudgment Interest Statute Unconstitutional

Cook County Circuit Court Judge Marcia Maras has ruled that the prejudgment interest Amendment to 735 ILCS 5/2-1303 violates the Illinois Constitution. The 2021 Amendment requires a defendant to extend a settlement offer within one year of plaintiff filing a major tort claim, including personal injury and wrongful death. See Hyland et al., v. Advocate Health and Hospital Corp. et al., Case No: 2017-L-3541, Order entered May 27, 2022. In Hyland, Judge Maras recognized that a defendant served more than one year after a case is filed is arbitrarily penalized and deprived of any potential benefit of any earlier made settlement offer. As such, the Amendment penalizes a defendant regardless of whether they contributed to any delay in the litigation. Further, the Amendment allows a plaintiff to reap the benefit of prejudgment interest despite their failure to diligently prosecute their case.

Liability For Third Party Criminal Conduct – California Court Dismisses Claim Against Uber For Assaults By Individuals Pretending To Be Uber Employees

In Doe v. Uber Technologies, Inc., et al., 2022 Cal. App. LEXIS 477, California’s Second Appellate District analyzes liability for third-party criminal action; specifically, claims against Uber for sexual assault incidents perpetrated by individuals that misrepresented to victims that they were Uber drivers. In upholding the trial court’s dismissal, the appellate court solidified existing limits of liability for third party criminal conduct.

Illinois Appellate Court Reaffirms Kimbrough As “Mainstay” Authority For Obtaining Summary Judgment In Slip And Fall Cases

In 1981, the Illinois Appellate Court decided Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813 (1981), holding that merely showing a slip and fall on a defendant’s premises was insufficient to satisfy proximate causation requirements. Instead, the plaintiff had to show that some condition caused the fall, and this condition was caused by the defendant.

Illinois Supreme Court Poised To Decide BIPA Claim Accrual Question

Today, most people are concerned about identity theft and wanting to ensure that their unique identifiers stay private. The Illinois legislature sought to address these concerns with the Biometric Information Privacy Act (“the Act”). 740 ILCS 14 et seq. The Act sets strict requirements for entities that capture a person’s biometric identifiers and information in Illinois. Although the statute was unanimously enacted in 2008, it has only recently become a popular source of complaints in Illinois, often pled as class actions. A central issue in one such case, Cothron v. White Castle Sys., 20 F.4th 1156 (7th Cir. 2021), is claim accrual, and the damages resulting from such accrual. Calling BIPA claim accrual “novel,” the Seventh Circuit stated it was “genuinely uncertain” about the issue, and that the Illinois Supreme Court could side with either Cothron or White Castle. Consequently, the Seventh Circuit certified the question on December 20, 2021. The Illinois Supreme Court accepted the certified question three days later.

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