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Legal Updates, Opinions and Relevant information on Insurance Coverage and Bad Faith Litigation

Copeland, Stair, Kingma & Lovell, a civil litigation firm, has a reputation for forceful, creative and cost-effective advocacy on behalf of its clients. Formed in 1970 with five attorneys operating out of a downtown Atlanta office, we now have over 75 civil litigation attorneys handling legal matters across the Southeast from offices in Atlanta, GA, Charleston, SC and Chattanooga, TN.

Georgia Automobile Law Update

On May 4, 2021, the Georgia Governor signed House Bill 714, substantially modifying O.C.G.A. § 9-11-67.1, the offer of settlement statute, as well as O.C.G.A. § 33-7-11(j), the bad faith provision of the Uninsured Motorist statute. These changes will affect the handling of Georgia automobile accident claims accruing on or after July 1, 2021.

C.G.A. § 9-11-67.1

House Bill 714 revised and provided new requirements under the Georgia Civil Practice Act, O.C.G.A. § 9-11-67.1, relating to requirements regarding settlement offers and agreements for tort claims for personal injury, bodily injury, and death:

C.G.A. § 9-11-67.1(a) – Change in the Application Trigger

The current version of the statute sets forth the requirements of written offers to settle injury or death claims arising from the use of a motor vehicle which were prepared by or with the assistance of an attorney and sent prior to filing suit. The new statute will apply to written offers to settle injury or death claims arising from motor vehicle accidents which were prepared by or with the assistance of an attorney and sent prior to the filing an answer.

C.G.A. § 9-11-67.1(a)(1)(D) – Change Regarding Terms of Release

The current statute requires that the offer to settle state “the type of release, if any, the claimant or claimants will provide to each releasee.”  The new statute requires that the demand state, “For any type of release, whether the release is full or limited and an itemization of what the claimant or claimants will provide to each releasee.”

C.G.A. § 9-11-67.1(a)(2) – New Medical Record Requirement

The new statute adds a brand new requirement that the demand “shall include medical or other records in the offeror’s possession incurred as a result of the subject claim that are sufficient to allow the recipient to evaluate the claim.”

C.G.A. § 9-11-67.1(a)(3) – New Statement of Insurance Requirement

The new statute adds brand new language that a demand “May include a term requiring that in order to settle the claim the recipient shall provide the offeror a statement, under oath, regarding whether all liability and casualty insurance issued by the recipient that provides coverage or that may provide coverage for the claim at issue has been disclosed to the offeror.” [emphasis added].

C.G.A. § 9-11-67.1(b)(1) – New Language Limiting Other Terms

The new statute adds brand new language that provides, “Unless otherwise agreed by both the offeror and the recipients in writing, the terms outlined in subsection (a) of this Code section shall be the only terms which can be included in an offer to settle made under this Code Section.”

C.G.A. § 9-11-67.1(d) – Changes to Language Regarding Right to Seek Clarification of Release

The new statute adds language that makes clear the recipient of the demand has a right to seek clarification regarding “the terms of the release.”  However, it adds the requirement that “An attempt to seek reasonable clarification shall be in writing…” [emphasis added]. Finally, it adds brand new language that provides, “In addition, if a release is not provided with an offer to settle, a recipient’s providing of a proposed release shall not be deemed a counteroffer.”

C.G.A. § 9-11-67.1(e) – New Terms Regarding How Demand Must Be Sent

This Code section already has existing requirements that an offer of settlement be sent via certified mail or statutory overnight delivery, return receipt requested and must reference the Code Section. The new statute adds a brand new requirement that the offer of settlement “shall include an address or a facsimile number or email address to which a written acceptance… may be provided.”

 C.G.A. § 9-11-67.1(g) – Changes to Terms Regarding Delivery of Check

The current statute permits the offeror to require payment within a specified period, but not less than ten days after the written acceptance of the offer to settle.  The new statute changes this to provide that the offeror may not require payment “less than 40 days from the receipt of the offer.”

C.G.A. § 33-7-11(j)

House Bill 714 also revises the “bad faith penalty” as to uninsured motorist carriers found in O.C.G.A. § 33-7-11(j).

The current statute provides that if an uninsured motorist carrier refuses to pay an insured for a covered loss within 60 days after a statutorily compliant demand is made by the insured, and a finding is made that such a refusal was made in bad faith, the “insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery and all reasonable attorney’s fees for the prosecution of the case under this Code section.”

The new statute provides that the “insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery or $25,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the case under this Code section.” [emphasis added].

The full bill can be found on the Georgia General Assembly website.

 

Traffic Citations Can Extend the Statute of Limitations for Personal Injury Actions to Two Years in Tennessee

On January 28, 2021, the Tennessee Court of Appeals issued a ruling in the case of Reginald M. Younger v. Kibreab Kidane Okbahhanes, No. E202000429COAR10CV, 2021 WL 289332 (Tenn. Ct. App. Jan. 28, 2021). The Court held the one-year statute of limitations for personal injury actions under Tenn. Code Ann. § 28-3-104(a)(1) can be extended to two years pursuant to Tenn. Code Ann. § 28-3-104(a)(2).

Tenn. Code Ann. § 28-3-104(a) reads as follows:

(a)(1) Except as provided in subdivision (a)(2), the following actions shall be commenced within one (1) year after the cause of action accrued:

    1.  Actions for libel, injuries to the person, false imprisonment, malicious prosecution, or breach of marriage promise;
    2. Civil actions for compensatory or punitive damages, or both, brought under the federal civil rights statutes; and
    3. Actions for statutory penalties.

(2) A cause of action listed in subdivision (a)(1) shall be commenced within two (2) years after the cause of action accrued, if:

    1. Criminal charges are brought against any person alleged to have caused or contributed to the injury;
    2. The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by:
      1. A law enforcement officer;
      2. A district attorney general; or
      3. A grand jury; and
    3. The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such conduct.

(3) This subsection (a) shall be strictly construed.

Younger relates to a traffic collision that occurred in September 2017 in Roane County, Tennessee. Defendant Okbahhanes was issued a traffic citation for (1) failure to exercise due care, (2) violation of financial responsibility law [i.e., proof of insurance], and (2) failure to carry registration documents. In October 2017 Okbahhanes paid a fine relating to the charge of failure to exercise due care; the remaining charges were dismissed in November 2017.

In April 2019, Younger filed an action against Okbahhanes, alleging that the action was timely pursuant to Tenn. Code Ann. § 28-3-104(a)(2). Okbahhanes filed an answer denying the allegations against him and pleading an affirmative defense that the action was time-barred. Okbahhanes later filed a motion for summary judgment, arguing that the one-year statute of limitations under Tenn. Code Ann. § 28-3-104(a)(1) applied. The trial court denied the motion for summary judgment, finding that the traffic citation for failure to exercise due care was related to the conduct that gave rise to the action; that the citation was a criminal charge; that the citation commenced a prosecution; and that Younger was allegedly injured by Okbahhanes’ criminal conduct.

Okbahhanes appealed the trial court’s order to the Tennessee Court of Appeals, which affirmed the trial court’s ruling. The Court of Appeals held that in construing Tenn. Code Ann. § 28-3-104(a)(2), the plain meaning of a statute’s words must be applied. Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013). When a statute’s language is clear and unambiguous, the statute is enforced as written. Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016).

Tennessee law is clear that a violation of Tenn. Code Ann. § 55-8-136 for failure to exercise due care is a Class C misdemeanor and, therefore, a crime. The Court of Appeals held that the language of Tenn. Code Ann. § 28-3-104(a)(2) is clear and ambiguous. As such, the Court of Appeals held that the traffic citation issued to Okbahhanes for failure to exercise due care is a criminal charge, and a criminal prosecution by a law enforcement officer, such that Tenn. Code Ann. § 28-3-104(a)(2) acted to extend the statute of limitations to two years.

The statutes contained in Tenn. Code Ann. § 55-8-101 et seq. constitute the Rules of the Road when it comes to operating motor vehicles in the State of Tennessee. Such violations include obeying stop signs and traffic lights, driving on the wrong side of the road, maintaining a safe distance, signaling, etc. Tenn. Code Ann. § 55-8-103 states that it is a Class C misdemeanor for any person to violate the Rules of the Road. Violation of the financial responsibility and registration laws contained in Younger are also Class C misdemeanors.

A number of questions remain unanswered with regard to Tenn. Code Ann. § 28-3-104(a)(2), and it may yet come before the Court of Appeals again under different facts. The Court of Appeals did not discuss in detail Okbahhanes’ violation of the financial responsibility and vehicle registration laws, which were dismissed prior to the lawsuit being filed. Although they are Class C misdemeanors, it stands to reason that violation of those laws was not conduct, a transaction, or an occurrence that caused the underlying collision or gave rise to Younger’s cause of action. If Okbahhanes had been cited with those paperwork violations, but not failure to exercise due care, would the statute of limitations have been extended to two years?

Other questions arise in the area of premises liability. Violation of a state building code is a Class B misdemeanor. Tenn. Code Ann. 68-120-108. Violation of county building codes is a Class C misdemeanor. Tenn. Code Ann. 5-20-105(b)(1). Suppose, for example, that a person is injured due to alleged improper design or construction in violation of a building code or ordinance. If the person responsible for the violation is later cited by the authorities and sued by the injured person, would the statute of limitations be extended to two years under Tenn. Code Ann. § 28-3-104(a)(2).

Okbahhanes has until March 1, 2021, to appeal the Order of the Court of Appeals.

The case is Reginald M. Younger v. Kibreab Kidane Okbahhanes, No. E202000429COAR10CV, 2021 WL 289332 (Tenn. Ct. App. Jan. 28, 2021)

Landmark Supreme Court Ruling Delivers on Equal Rights Hopes for LGBTQ Community

On June 15, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), a decision written by Justice Gorsuch, the Supreme Court ruled in a 6-3 vote that even if Congress did not have discrimination on the basis of sexual orientation or transgender status in mind when it enacted Title VII of the Civil Rights Act of 1964, Title VII’s ban on discrimination protects gay, lesbian, and transgender employees.

The case was originally brought by three separate plaintiffs and was consolidated into one case when it reached the Supreme Court. In each of the cases, the employer did not dispute that they fired their employees for being homosexual or transgender. Rather, they contended that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. The first case involved a Clayton County, Georgia employee who was fired for conduct “unbecoming” of a county employee when he began participating in a gay recreational softball league. The second involved a skydiving instructor who was fired days after he mentioned to his employer that he was gay. The third case involved a transgender woman who presented as a man when she was hired but was fired after she informed her employer that she planned to “live and work full-time as a woman.” The circuit splits between the Eleventh, Second, and Sixth Circuit that resulted from the three cases set this case up for adjudication with the Supreme Court.

The question on certiorari before the court was “[w]hether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of… sex’ within the meaning of Title VII of the Civil Rights Act of 1964, 42U.S.C. § 2000e-2.” Justice Neil Gorsuch framed the question before the court as a straightforward one: “Today,” he wrote, “we must decide whether an employer can fire someone simply for being homosexual or transgender.” The answer to that question “is clear.” When an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch wrote that “[Congress] might not have anticipated their work would lead to this particular result.” But, he added “they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.” However, he continued, the “limits of the drafters’ imagination supply no reason to ignore the law’s demands.” When the text of a law and “extratextual considerations” point in different directions, the “written word is the law, and all persons are entitled to its benefits.”

The majority opinion states that sexual orientation and gender identity are “inextricably bound up with sex,” and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules.” As an example, Justice Gorsuch offers that “an employer that announces it will not employ anyone who is homosexual intends to penalize male employees for being attracted to men and female employees for being attracted to women.” Gorsuch “agree[s] that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

“As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.” Justice Gorsuch then concludes in the opinion that “[i]n Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Justice Alito, joined by Justice Thomas, wrote a dissent that can be summed up by its first sentence: “[t]here is only one word for what the Court has done today: legislation.” Justice Alito writes that last year, “the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both ‘sexual orientation’ and ‘gender identity,’ but the bill has stalled in the Senate.” His dissent is biting against the majority and states that the “brazen abuse of [the Supreme Court’s] authority to interpret statutes is hard to recall.” He calls the majority’s reasoning that the opinion is merely enforcing the terms of the statute “preposterous.” He argues that the question before the court is “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.” He concludes that “[i]t indisputably did not.”

Justice Kavanaugh writes in a separate dissent that the question before the court was “whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation.” In his opinion, he opines that it is the responsibility of “Congress and the President in the legislative process, not to this Court.” He continued that “the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical” when judges make decisions that appear to the personal preferences rather than based on the law. He concludes by acknowledging “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

The ruling in this case is based on statutory interpretation grounds. It makes immediately clear to employers that Title VII prohibits discrimination against job applicants or employees on the basis of sexual orientation or gender identity. Title VII applies to private sector employers with 15 or more employees, as well as public sector employers, e.g., local, state, and federal employers. Title VII does not include private sector employers with less than 15 employees, whereby local or state laws could fill in the gap.

The ruling also addresses the possibility of certain employers claiming an exception to Title VII’s reach if an employer claims that it violates their sincerely held religious belief. Justice Gorsuch notes that the court is “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.” Justice Gorsuch writes that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases.” Notably, there are currently cases pending certiorari to the Supreme Court that may answer this question in the future.

The ruling in Bostock v. Clayton County impacts Title IX of the Education Amendments Act of 1972 protections for transgender students since Title IX cases look to Title VII for guidance. Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Furthermore, Bostock has implications for transgender individual’s protection under the Affordable Care Act since the ACA looks to Title IX for guidance. It follows that the Supreme Court ruling under Title VII would affect Title IX cases and also cases involving the ACA since all are incorporated by reference. The implications from the Bostock ruling have yet to be seen, but these are a few areas to monitor closely.

South Carolina Supreme Court Rules on Attorney Client Privilege Treatment in Bad Faith Law

The SC Supreme Court recently addressed a novel issue of how attorney-client privilege is treated  with regard to insurance bad faith law.  The issue arose out of a construction defect lawsuit when the Insurer failed to defend its Insured, a contractor.  After settling out of the case personally, the Insured sued the Insurer for bad faith refusal to defend.  In discovery, the Insured sought the Insurer’s claim file including correspondence between the Insurer and its attorneys.  The Insurer claimed privilege over those communications, but the Insured argued that the Insurer’s denial of liability for bad faith and its affirmative defense of “good faith” resulted in waiver of the attorney-client privilege.  The discovery dispute ultimately found its way to the SC Supreme Court.

The Court held that a denial of bad faith and/or the assertion of good faith by an insurer does not, standing alone, place a privileged communication “at issue” such that the attorney-client privilege is automatically waived.  Instead, the Court adopted a middle-ground, case-by-case approach akin to Arizona law.  Per the Court’s holding, a client does not waive the attorney-client privilege simply by bringing or defending a lawsuit; rather, waiver requires the additional interjection of the issue of advice of counsel (either expressly or implicitly) by the client.  In other words, whether or not “advice of counsel” is raised as an affirmative defense, if the client defends based on the affirmative theory that the client’s mental state at the time at issue (such as when the Insurer denied the Insured’s claim) was based on an evaluation of the law and the facts then existing, such would equate to putting the legal evaluation “at issue” and thus result in a waiver of the privilege.

In re: Mt. Hawley Ins. Co., Op. No. 27892 (S.C. Sup. Ct., June 12, 2019)

The CLM and Business Insurance’s 2018 Claims College Recap

This was the seventh year The Council of Litigation Management’s Claims College occurred in Baltimore, Maryland.  The College has eleven specialty schools, and students have the ability to earn their CCP (Certified Claims Professional) designation, ACP (Advanced Claims Professional) designation, or a Certificate in Mediation, Extra-Contractual Claims or Leadership depending on the classes they take.  I was excited to return to the faculty for the School of Casualty and to join the Executive Council for the School of Leadership.  This was the seventh year The Council of Litigation Management’s Claims College occurred in Baltimore, Maryland.  The College has eleven specialty schools, and students have the ability to earn their CCP (Certified Claims Professional) designation, ACP (Advanced Claims Professional) designation, or a Certificate in Mediation, Extra-Contractual Claims or Leadership depending on the classes they take.  I was excited to return to the faculty for the School of Casualty and to join the Executive Council for the School of Leadership.

This was the School of Leadership’s second year at Claims College.  The eight classes presented assist students with understanding different types of leadership theories.  They also provide direction and guidance for leadership development.  It was an honor to work with the talented Deans of this school and the other Executive Council members to expand on the classes presented last year.

As a faculty member for the School of Casualty, I returned to teach a Level 2 course titled “Case Resolution:  Development of a Negotiation Strategy.”  Our goal for this class is to make it as interactive as possible to allow students to apply their own style to various negotiation scenarios.  Besides discussing the principles of negotiation, we also try to assist in the creation of a negotiation strategy and how to overcome an impasse or difficult adversary.  Every year, the students in this class amaze me with their presentations for each negotiation exercise we present to them.

Claims College is one of the most rewarding educational experiences I engage in each year. This college is where I get to teach with some of the industry’s top professionals, and meet with future leaders participating in the classes presented.  I am already looking forward to next year.

Insurance Carrier gets Popped in Bad Faith Action

In case you missed it, Judge Roger Young just found in favor of the plaintiffs to the tune of $21,746,022.87 – and that does NOT include punitive damages.  The plaintiffs include the developers of a condominium as well as the individual condo owners and the homeowners association.  They filed a declaratory judgment, breach of contract and bad faith action against an insurance carrier, after the carrier denied defenses in underlying water intrusion and construction defects complaints filed by the homeowners association and individual unit owners.  Judge Young found that the four requirements of the insurance agreement for each of the policy years had been met and that the exclusions cited were ambiguous and, therefore, must be construed in favor of the insured.  Thus, the insurance carrier owed a duty to defend and indemnify its insured.  Interestingly, the court took issue with the content of the denial letter in much the same way as we recently saw in the Heritage v. Harleysville case.  The punitive damages hearing is set to occur at a later date and it remains to be seen if this decision will be appealed.

Stay tuned for an update, after the upcoming punitive damages hearing.

Excess Insurer U.S. Fire Insurance Co. Urges Fifth Circuit to Affirm District Court Finding that Faulty Work Award is Not Covered Under Excess Policy

U.S. Fire Insurance Co. (“U.S. Fire”) is requesting that the Fifth Circuit Court of Appeals  affirm a district court’s ruling that an $8 million arbitration award for repairs necessitated by faulty construction is not covered under its excess liability policy.  U.S. Fire Insurance Co. (“U.S. Fire”) is requesting that the Fifth Circuit Court of Appeals  affirm a district court’s ruling that an $8 million arbitration award for repairs necessitated by faulty construction is not covered under its excess liability policy.

The insurance coverage dispute arises out of the alleged deficient construction of a courthouse in Zapata County, Texas, by Satterfield & Pontikes Construction, Inc. (“S&P”).  Arbitration of the underlying claims resulted in an $8 million judgment against S&P, allocated as follows: $6,072,000.00 in compensatory damages; $1,500,000 in attorneys’ fees; $430,458 in pre-judgment interest; and $29,909.74 in arbitration fees.  S&P sought contractual indemnity from each of its subcontractors and ultimately obtained $4,492,500 in settlements with their subcontractors.

S&P then sought coverage from its primary commercial general liability insurer, American Guarantee & Liability insurance Company (“AGLIC”), and its umbrella liability insurer, U.S. Fire, for the remaining balance of the judgment.  U.S. Fire refused to pay any portion of the remaining judgment on the ground that applying non-covered amounts under the excess policy to the subcontractor settlements was improper.  U.S. Fire’s excess policy contained a “Fungi and Bacteria Exclusion,” and the excess insurer took the position that after subtracting the attorney’s fees, arbitration fees, prejudgment interest, and portions of the award attributed to mold remediation, there remained $3,240,000 of potentially covered claims – less than the subcontractor settlements plus the underlying coverage limits.

S&P, AGLIC, and Amerisure then sued U.S. Fire in the United States District Court for the Southern District of Texas.  In its June 1, 2017 order granting U.S. Fire’s motion for summary judgment, the district court held that no loss reaches the excess layer of insurance.  The district court reasoned that the subcontractor settlements were structured as “undifferentiated general releases” and failed to allocate the settlement money between covered and non-covered damages under the excess policy.  The court concluded that “allocating the settlement money it received only to uncovered harms” and then pursuing reimbursement from the excess carrier was an attempt to “manufacture a covered loss.”  In so holding, the court noted that Texas courts “generally put the burden on the insured to identify the portion of a liability or loss that was produced by a covered condition.”

On November 6,  2017, S&P and Amerisure appealed to the Fifth Circuit Court of Appeals.  They argue that there is no basis in the U.S. Fire policy to apply its terms, conditions and exclusions to reduce the amount of the subcontractor settlements, as those settlements were made pursuant to indemnification obligations arising out of S&P’s subcontracts and were not the product of insurance coverage for S&P.  Additionally, S&P contends that it was not required to allocate between covered and non-covered damages in the subcontractor settlements.   In its reply brief filed on January 5, 2018, U.S. Fire urged the Fifth Circuit to affirm summary judgment.

The appeal remains pending.  However, this dispute is an important reminder to contractors and insurers alike to 1) carefully consider the terms of a settlement agreement and 2) determine whether the jurisdiction in which any dispute of the agreement’s terms would be litigated requires identification of the portion of a liability or loss that was produced by a covered condition.  Does anyone else think that this sounds a good bit like the recent D.R. Horton v. Builder First Source decision in South Carolina? D.R. Horton, Inc. v. Builders FirstSource – Se. Grp., LLC, No. 5529, 2018 S.C. App. LEXIS 2, at *13 (Ct. App. Jan. 10, 2018).

The case is Satterfield & Pontikes Construction, Inc. and Amerisure Mutual Ins. Co. v. U.S. Fire Ins. Co., Case Number 17-20513, in the United States Court of Appeals for the Fifth Circuit.  We will follow the case and update this blog post after the Fifth Circuit’s decision.

Summary Judgment Affirmed (AGAIN!) in Long Grove Case!

For those of you that have been following along, in Long Grove, the original apartment Developer (and its affiliated general contractor and architect) prevailed against the POA in the Developer’s attempt to disclaim liability to downstream purchasers as part of the sale of an apartment complex to a Condo Converter Developer.  The original Developer had bargained for and received warranty disclaimers on behalf of itself and all “affiliates” when it sold the apartment complex to the Condo Converter Developer.  The disclaimers were incorporated into the master deed, thereby putting downstream purchasers on notice.  The circuit court granted summary judgment in favor of the Developer (and its affiliates), finding 1) the Developer did not put the condos into the stream of commerce because they were not intended to be converted at the time of design; 2) because the disclaimers of warranties were incorporated into the master deed, subsequent buyers were effectively put on notice; and 3) the Developer effectively and permissibly transferred its liability to the Condo Converter Developer, such that the POA’s recourse was against the Condo Converter Developer rather than the original Developer.

The Court of Appeals affirmed in a two-paragraph, per curiam opinion:  Long Grove at Seaside Farms, LLC v. Long Grove Prop. Owners’ Ass’n, No. 2015-UP-377, 2015 S.C. App. Unpub. LEXIS 457 (S.C. Ct. App. July 29, 2015).  The Supreme Court heard the appeal several months ago, but has now decided it should never have accepted the case and dismissed the writ as “improvidently granted.”  Thus, the case is effectively ended as to the original Developer and its affiliates.

Tennessee Supreme Court Holds That Full and Undiscounted Medical Bills may be Submitted as Proof of Reasonable Medical Expenses

The Tennessee Supreme Court has issued its long-awaited decision in the Dedmon v. Steelman case. This case has direct and significant consequences to personal injury litigation in Tennessee. In short, defendants may not argue that the amount actually received by a medical provider is the reasonable amount of a plaintiff’s medical bills.  Plaintiffs may submit undiscounted medical bills in full as proof of reasonable expenses.

The Tennessee Supreme Court granted an appeal in Dedmon to address whether its ruling in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014) applies in personal injury cases. In West, the court held that a hospital’s reasonable charges under Tennessee’s hospital lien statute are the amount the hospital accepts from the patient’s private insurer, not the full amount of the medical bills sent to the patient.

The Supreme Court released its decision on November 17, 2017.  The court held that the collateral source rule applies to personal injury claims in which the collateral benefit at issue is private insurance. Consequently, plaintiffs may submit evidence of the injured party’s full, undiscounted medical bills as proof of reasonable expenses. Furthermore, defendants are precluded from submitting evidence of discounted rates accepted by medical providers from an insurer in order to rebut the plaintiff’s proof that the full, undiscounted charges are reasonable.

The court reasoned that to allow defendants to submit discounted rates would conflict with the collateral source rule. However, defendants remain free to submit any other competent evidence to rebut a plaintiff’s proof on the reasonableness of medical expenses, so long as that evidence does not conflict with the collateral source rule.

New Jersey Opinion Focuses on the “Nature and Scope” of Damage to Determine Trigger for Coverage

Recently, a New Jersey appeals court ruled that insurance coverage for construction defect liability claims extends until the nature and the scope of the property damage becomes apparent. Thus, a new grey area has been created for insurers to assess time on risk. The result of the opinion leads one to believe that insurer will more likely than not lose on summary judgment as to “trigger” because the court seemingly requires a rigorous and fact-intensive analysis of when the “last pull” of the trigger occurs.

The underlying matter involved a condominium building that was built between November 2005 and April 2008. As early as February 2008, homeowners noticed water damage in their windows, ceilings and other portions of the units. In May 2010 the unit owners hired an expert to perform a moisture survey of the development and he identified 111 spots of moisture damaged areas that need to be removed and replaced. The unit owners alleged the HVAC contractor was to blame for the moisture intrusion at the project.

Selective issued an “occurrence based” general liability policy that covered bodily injury and property damage taking place during the policy period of June 2009 through June 2012 for the HVAC contractor. Selective disclaimed coverage on the grounds the alleged property damage had occurred prior to the inception of its policy because the homeowners were aware of the problems in 2008. The trial court agreed with Selective and found that the continuous trigger applied to the claims against the HVAC contractor, but still held that Selective had no coverage obligations because the damage had in fact manifested before June 2009.

The HVAC contractor appealed and argued, “the end date for the continuous trigger doesn’t occur until an expert report or some other proof definitively establishes that the policyholder’s faulty work caused the alleged damage.” The court disagreed and stated that “an attribution analysis could be highly fact-dependent, and difficult to resolve when an insured makes a request for defense and indemnification after being named in a complaint.” In sum, HVAC contractor argued that the trigger began when the expert analysis was performed in 2010. Conversely, Selective argued that , based on the hearsay statements of the homeowners, the triggering event occurred in 2008. The appellate court found that information about the building defects was or reasonably could have been revealed at any time between the time of the unit owners’ complaints until the start of Selective’ s policy in June 2009 and the case should be reopened to allow for discovery to explore the critical factual issues outlined in the opinion regarding the discovery of the damage.

The ruling muddies the water as to triggering events and the parties have been ordered to complete more discovery to determine when the essential manifestation occurred in this instance. For insurers in this jurisdiction, this means they will need to pursue discovery as to the nature and scope of the damage to attempt demonstrate when the last trigger pull occurred if they are seeking to avoid providing coverage. Conversely, insureds will likely attempt to undercut this evidence as inadmissible or too vague to warrant a “trigger pull.” Those who represent insureds in this jurisdiction may find this case inconsistent with spirit of the New Jersey Supreme Court’s landmark 1994 ruling in Owens-Illinois Inc. v. United Insurance Co., which applied the continuous trigger in a dispute over coverage for asbestos-related bodily injury claims to maximize coverage.

This case is Air Master & Cooling Inc. v. Selective Insurance Co., case number A-5415-15T3, in the Superior Court of the State of New Jersey, Appellate Division. Our office intends to follow this case and will update with a blog post regarding significant decisions.