Michigan: Identifying and Exploiting the "Queen Exception" to No-Fault Subrogation
May 13, 2014 —
Robert M. Caplan – White and Williams LLPIn Michigan, an employee’s entitlement to compensation for injuries sustained in a motor vehicle accident is governed by both the Workers’ Disability Compensation Act of 1969, MICH. COMP. LAWS ANN. § 418.801 et seq., and Chapter 31 of The Insurance Code of 1956, MICH. COMP. LAWS ANN. § 500.3101 et seq., commonly referred to as the “no-fault act.” Polkosnik v. United Canada Ins. Co., 421 N.W.2d 241, 242 (Mich. App. 1988).
PIP1 benefits payable arising from a motor vehicle accident in Michigan include, principally, (1) medical benefits unlimited in amount and duration, and (2) 85% of lost wages for up to three years. See DEPARTMENT OF INSURANCE AND FINANCIAL SERVICES, Brief Explanation of Michigan No-Fault Insurance. As of October 2013, lost wages are capped at $5,282 per month. Id. Such benefits constitute an injured worker’s “economic loss.” See generally Wood v. Auto-Owners Ins. Co., 668 N.W.2d 353, 355 (Mich. 2003).
Michigan’s no-fault legislation is no different than other no-fault legislation in regard to its purpose: The automobile insurer pays without any right of reimbursement out of any third party tort recovery. Sibley v. Detroit Auto. Inter-Ins. Exch., 427 N.W.2d 528, 530 (Mich. 1988). Moreover, just like in New York, for example, “where benefits are provided from other sources pursuant to state or federal law, the amount paid by the other source reduces the automobile insurer’s responsibility.” Id. at 530.
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Robert M. Caplan, White and Williams LLPMr. Caplan may be contacted at
caplanr@whiteandwilliams.com
Another TV Fried as Georgia Leads U.S. in Lightning Costs
June 26, 2014 —
Kelly Gilblom – BloombergGeorgia tops a shocking list: most likely place to have property damaged by lightning.
Georgia residents were reimbursed for $56 million of lightning-related damage in homes last year tied to more than 11,000 claims, according to a top-10 list from the Insurance Information Institute. Texas ranked second at $54.2 million.
Once lightning is “in the wiring, it’s electrifying anything connected to that,” John Jensenius, a lightning-safety specialist at the National Weather Service, said today in a phone interview. “Televisions, and even things like microwaves, they all have little chips in them so they all can get fried pretty easily.”
Lightning cost insurers $5,869 per claim in the U.S. last year, more than double the average in 2004, as homeowners added electronics such as computers and high-definition televisions. Still, the total expense for the industry declined 8.4 percent nationwide in that span, to $673.5 million in 2013, because better lightning-protection systems and fewer storms decreased the frequency of claims, the industry group said.
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Kelly Gilblom, BloombergMs. Gilblom may be contacted at
kgilblom@bloomberg.net
Is Your Website Accessible And Are You Liable If It Isn't?
January 06, 2020 —
Kyle Janecek and Jeffrey Dennis - Newmeyer DillionTo anyone who does business online - beware. While the ADA has been in play for years, it did not necessarily account for all the technological advances that have been made over time. Specifically, when it comes to accommodations - what accommodations can and should be made within a website, and whether accommodations should be made on all websites or just some. However, because of this, a new type of lawsuit has emerged, and is slowly becoming more prominent. Since the Supreme Court refused to clarify this particular area of law, we must turn to the recent Ninth Circuit Ruling in Robles v. Domino's for guidance.
What Happened in Robles v. Domino's?
As part of a spree of litigation, Guillermo Robles had sued Domino's Pizza due to the lack of accessibility for the Domino's smartphone application and website. Mr. Robles is blind, and neither the website nor application, which allowed users to order Domino's food for pickup or delivery, and offer exclusive discounts, were accessible to him. The Domino's website and application were both incompatible with his chosen software, prompting a lawsuit in 2016. After a short success in the trial court due to the lack of guidance given to websites and applications in how to accommodate for the ADA, the Ninth Circuit overruled the trial court, finding that: (1) the ADA applied to Domino's as there was a nexus between the Domino's website and app, and physical restaurants; and (2) the lack of guidance to Domino's did not violate its right to due process.
The ultimate effect of Robles v. Domino's found that businesses cannot necessarily avoid ADA litigation, even though the federal government hasn't given guidelines on how to make a website or mobile application accessible.
What Happened at the Supreme Court?
Back in June, Domino's appealed the Ninth Circuit decision, prompting a flurry of amicus briefs. This was done, in part, because there is a circuit split between the Sixth, Ninth, and Eleventh Circuits requiring that a website has a physical nexus to a place of public accommodation (i.e. a "brick-and-mortar" location), and the First, Second, Fifth and Seventh Circuits, which will rule that a website is a place of public accommodation if it does something a place of public accommodation would do (i.e. Netflix showing films). In addition, parties aside from Domino's have been looking for further guidance given the lack of comments from the Department of Justice and Congress. This is especially relevant because the Department of Justice has been considering the application of the ADA to the internet from 1996 to 2018, resulting in some inconsistent comments regarding the need for rule making.
This had pushed Domino's and others to attempt to end the ongoing regulation through litigation and furthermore, due to the decision in the Ninth Circuit, to avoid the Domino's holding from creating a "defacto" requirement.
How Do You Prepare?
While there is an off-chance that this kind of civil ADA litigation will resurface to the Supreme Court, these claims tend to settle relatively quickly, and ultimately may prevent courts from providing any solid or concrete guidance on accessibility until either the Department of Justice provides guidelines or Congress amends the ADA to specifically address website accessibility.
However, a determination of what is "accessible" may be put forward due to the new proposed regulations for the CCPA set forth by California's Attorney General. The proposed regulations specifically state that a privacy policy should be accessible to consumers with disabilities, and at a minimum, should provide information on how a consumer with a disability can access the notice in an alternative format. Importantly, this removes the arguments on whether or not the website would have to be a place of public accommodation. It is now widely applicable to every website. Given the CCPA is to be enforced by the Attorney General, this presents a possible situation where the state of California will determine what is accessible through enforcement actions.
In the absence of guidelines however, you have four actions you can take to protect your business.
- Learn the standards. There are unofficial accessibility guidelines such as WCAG 2.0AA that are treated as an industry standard. While this may not completely protect you from claims made by litigants, this will help your business move towards compliance.
- Know and negotiate. When dealing with third party service providers or developers, make sure that accessibility is brought up, discussed, and addressed before moving forward with using that service provider or developer. If the developer or service provider cannot assure that their product is accessible, be prepared to walk away. A business may be found liable for the inaccessibility of an online service provider used by the business to provide the business's services.
- Beta test often. As technology changes or websites are updated to be more device-friendly, new code or functions may make a website less accessible for accessibility devices and software. In addition, just because a website meets the WCAG 2.0AA, this may not account for all accessibility issues, so it would be prudent and beneficial to be thorough.
- Get help. Consider hiring third parties to help you evaluate a plan for accessibility and keep you up-to date for online accessibility issues.
Nonetheless, there is still a significant risk and uncertainty for anyone who does business online, as any business has to be aware of the current general framework of laws and industry accessibility guidelines to hope they meet the murky definition of "accessible."
Kyle Janecek is an associate in the firms Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis (CIPP/US) is the Head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that align with the business objectives of clients in diverse industries. With over 70 attorneys working as an integrated team to represent clients in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer Dillion delivers tailored legal services to propel clients' business growth. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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Boston Catwalk Collapse Injures Three Workers
May 10, 2022 —
Scott Van Voorhis - Engineering News-RecordThe collapse of a catwalk in a defunct, 124-year-old power plant building in Boston on May 4 injured three workers in the latest in a spate of serious construction accidents in the city and its environs.
Reprinted courtesy of
Scott Van Voorhis, Engineering News-Record
ENR may be contacted at enr@enr.com
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Insurer's Motion to Dismiss Complaint for Failure to Cover Collapse Fails
April 13, 2017 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer was unsuccessful in moving to dismiss the property owner's complaint that was filed after coverage for collapse of basement walls was denied. Cyr v. CCAA Fire & Cas. Ins. Co., 2017 U.S. Dist. LEXIS 39387 (D. Conn. March 20, 2017).
The Cyrs began observing cracking patterns in the basement wall of their home. A structural engineer inspected the wall and determined that the cracks were due to a chemical reaction in the concrete that would ultimately render the walls unstable. The Cyrs made a claim with CCAA under their homeowner's policy. The insureds contended that the progressive deterioration of the concrete in the basement walls was a collapse under the policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Requesting an Allocation Between Covered and Non-Covered Damages? [Do] Think Twice, It’s [Not Always] All Right.
October 12, 2020 —
Todd Likman - Colorado Construction LitigationAs is often the case in construction defect and other insurance defense litigation, a plaintiff’s claims for relief typically encompass both covered and uncovered damages. Obviously, it is in the insured’s best interests to have as many damages covered by insurance as possible. From the insurer’s perspective and against the backdrop of owing duty of good faith and fair dealing to its insureds, however, it is generally better to have an allocation of covered vs. non-covered damages. This places the insurer, insured, and insurance retained defense counsel in a difficult position.
A recent opinion from U.S. District Court for the District of Colorado, Rockhill Ins. Co. v. CFI-Global Fisheries Mgmt, Civil Action No. 1:16-CV-02760-RM-MJW, 2020 U.S. Dist. LEXIS 35209 (D. Colo. Mar. 2, 2020), sheds light on the issue, even though some may feel it only further muddies already murky waters.
Rockhill involved review of an arbitration proceeding that property-owner, Heirloom I, LLC (“Heirloom”) filed against CFI-Global Fisheries Management (“CFI”). Rockhill Insurance Company (“Rockhill Insurance”) was asked to defend the arbitration as CFI’s professional and general liability insurer. At issue in the arbitration was Heirloom’s claim that CFI defectively designed and constructed a fisheries enhancement that was destroyed by natural processes four times in three years.
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Todd Likman, Higgins, Hopkins, McLain & RoswellMr. Likman may be contacted at
likman@hhmrlaw.com
WATCH: 2023 Construction Economic Update and Forecast
January 09, 2023 —
Construction ExecutiveConstruction Executive presented its "2023 Construction Economic Update and Forecast" webinar with
Associated Builders and Contractors Chief Economist Anirban Basu on Dec. 14, sponsored by
Aerotek,
Bluebeam,
CMiC and
Raken.
Basu started by announcing the Federal Reserve’s rate increase of 0.5%, the latest in a series of increases aimed at combating inflation. Calling 2022 a “year of tumult and a year of surprise,” Basu further noted that the Russian invasion of Ukraine surprised many, further disrupting global supply chains and causing a shockwave to ripple through global energy prices.
Citing the U.S. Consumer Price Index, with 7.1% year-over-year inflation in November, Basu believes we’ve “peaked in terms of inflation for this cycle”; while inflation hit higher-than-expected levels throughout 2022, it leveled off at lower-than-expected rates by the end of the year. Basu predicted inflation will continue to be problematic through 2023 as it has shifted from transitory inflation due to supply-chain disruptions in 2020 and 2022 to broader inflation due to the labor market, noting that the worst of the supply-chain issues seem to be over, reaching a high point in late 2021.
Blaming the injection of fiscal stimulus coming from the federal government, monetary stimulus from the Federal Reserve and the fact that inflation has now become ingrained in the economy and in people’s expectations, leading to wage and price increases, Basu calls the economy “overheated.”
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Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Thousands of London Residents Evacuated due to Fire Hazards
June 29, 2017 —
David Suggs – Bert L. Howe & Associates, Inc.Nearly 4,000 residents were ordered by municipal authorities to “urgently evacuate apartments in five London high-rise buildings…after fire inspectors warned that the safety of the residents could not be guaranteed,” reported the New York Times. Displaced families were urged to find shelter with family or friends, but temporary accommodations were offered. Repairs may take up to four weeks.
The five London towers that were evacuated all contain the same exterior cladding and insulation that is similar to what was used in Grenfell Tower, where 79 people died in fire only the preceding week, according to the New York Times. Camden Council stated that the cladding material would be removed. They had ordered noncombustible cladding, but later learned that combustible cladding had been installed.
“Preliminary tests on the insulation samples from Grenfell Tower show that they combusted soon after the test started,” Detective Superintendent McCormack said in a televised statement, as quoted by the New York Times. “Cladding tiles had also failed initial tests,” she continued.
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