Ohio Supreme Court Rules That Wrongful Death Claims Are Subject to the Four-Year Statute of Repose for Medical Claims
January 16, 2024 —
Lewis Brisbois NewsroomCleveland, Ohio (January 2, 2024) - In a landmark 4-3 ruling, the Supreme Court of Ohio ruled on December 28 that wrongful death claims are subject to the four-year statute of repose contained in O.R.C. 2305.113(C) (“Medical Claim Statute of Repose”). Everhart v. Coshocton County Memorial Hospital, Slip No. 2023-Ohio-4670. Statutes of repose create an absolute bar to filing a lawsuit. When applicable, they bar plaintiffs from filing claims outside a specified time frame. The Medical Claim Statute of Repose creates a four-year window for commencing medical claims, which begins to run from “the occurrence of the act or omission constituting the alleged basis of the medical…claim.” O.R.C. 2305.113(C)(1). Medical claims commenced after the four-year period are barred.
The primary question before the Court was whether a wrongful death claim, which is separate and distinct from a medical negligence claim, can qualify as a “medical claim” within the context of the Medical Claim Statute of Repose. The Court answered in the affirmative. A wrongful death claim can qualify as a medical claim if the wrongful death claim “…arises out the medical diagnosis, care, or treatment, of any person.” O.R.C. 2305.113(E)(3). According to the majority, a wrongful death claim can fall within the broad definition of “medical claim” and, if it does, is subject to the Medical Claim Statute of Repose.
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Lewis Brisbois
Court Holds That Public Entity Can Unilaterally Replace Subcontractor Under California’s Subletting and Subcontracting Fair Practices Act
July 22, 2019 —
Garret Murai - California Construction Law BlogThe Subletting and Subcontracting Fair Practices Act (Public Contract Code section 4100 et seq.), also known as the Listing Law, is intended to prevent direct contractors on public works projects from “bid shopping” and “bid peddling.”
Bid Shopping: Bid shopping is when a direct contractor discloses a subcontractor’s bid to other subcontractors in an attempt to obtain a lower bid than the one in which it based its bid to the owner.
Bid Peddling: Bid peddling is the other side of the equation. It is when a subcontractor whose bid was not selected, lowers its bid in an attempt to induce the direct contractor to substitute it for another subcontractor after the prime contractor’s bid has been awarded.
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Top Developments March 2024
April 22, 2024 —
Complex Insurance Coverage ReporterCLAIMS-MADE COVERAGE
Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC, 2024 Del. LEXIS 68 (Del. Feb. 26, 2024)
Delaware Supreme Court concludes that a letter from a lawyer informing an insured of possible lawsuits without identifying potential plaintiffs or demanding payment is not a “claim for damages” within the meaning of claims-made CGL and umbrella liability policies. Citing case law from Delaware and other jurisdictions, it reasoned that, in the ordinary sense, a “claim for damages” (which the policies did not define) is “a demand or request for monetary relief by or on behalf of an identifiable claimant.” According to the court, the letter in question did not meet this definition because it did not identify any claimants “except in the vaguest terms” or request monetary relief on any claimant’s behalf, but rather communicated only a threat of future litigation. As a result, the letter was not a claim made before the policy periods at issue.
POLLUTION EXCLUSION
Wesco Ins. Co. v. Brad Ingram Constr., 2024 U.S. App. LEXIS 1488 (9th Cir. Jan. 23, 2024)
A divided Ninth Circuit panel, applying California law, holds that a pollution exclusion* in a CGL policy does not preclude a duty to defend an underlying suit alleging physical injury from exposure to “clouds of toxic dust” deposited in the environment by a wildfire and released during clean up efforts. Citing MacKinnon v. Truck Ins. Exch., 73 P.3d 1205 (Cal. 2003), the majority explained that determining whether a “pollution event” (i.e., “environmental pollution”) resulting in excluded injury has occurred involves consideration of “the character of the injurious substance” and whether the exposure resulted from a “mechanism specified in the policy.” It concluded that a potential for coverage (and, therefore, a defense obligation) existed because, although wildfire debris may be considered a “pollutant” in certain circumstances, the mechanism alleged in the underlying complaint – “expos[ure] . . . to clouds of toxic dust during the loading and unloading of [the underlying plaintiff’s] truck” – did not clearly constitute an “event commonly thought of as pollution.”
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White and Williams LLP
ASCE Statement on EPA Lead Pipe and Paint Action Plan
December 27, 2021 —
Tom Smith, Executive Director - American Society of Civil Engineers (ASCE)WASHINGTON, DC. – The American Society of Civil Engineers applauds
the Lead Pipe and Paint Action Plan released yesterday by the Environmental Protection Agency to help communities across the country remove lead pipes out of their drinking water systems.
Access to clean and safe drinking water is critical to public health and economic prosperity, and ASCE's
2021 Report Card for America's Infrastructure. gave a grade of C- for the drinking water category. It is estimated that as many as 10 million American households still have lead water pipes in use, which can put at risk the health and safety of families, particularly children. For utilities, moving forward with completing an inventory of lead service lines as part of the Lead and Copper Rule is a critical step, so we can get a better national picture of the scope of the problem.
This plan will allocate nearly $3 billion from the recently passed Infrastructure Investment and Jobs Act (IIJA) to states for lead service line replacements in FY 2022 and will prioritize communities with the highest lead levels. While additional investment will be needed, it is a significant down-payment on a national shared priority of clean drinking water for all Americans. It will allow utilities of all sizes to accelerate their rate of lead pipe replacement and offer technical assistance to those communities just embarking on these types of projects.
For more information about the American Society of Civil Engineers, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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No Escape: California Court of Appeals Gives a Primary CGL Insurer’s “Other Insurance” Clause Two Thumbs Down
December 02, 2015 —
Yas Omidi – California Construction Law Blog“No Escape” is a 2015 action movie starring Pierce Brosnan and Owen Wilson (that’s right, Owen Wilson) and which the folks at rogerebert.com described as “a dreadful…would-be thriller” and “low-grade trash.”
It’s also, in short, the California Court of Appeal’s answer to a primary insurer’s recent bid to escape its duty to defend pursuant to an “other insurance” clause in a CGL policy in Underwriters of Interest Subscribing to Policy No. A15274001 v. ProBuilders Specialty Ins. Co., Case No. D066615, California Court of Appeals for the Fourth District (October 23, 2015).
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Yas Omidi, California Construction Law BlogMs. Omidi may be contacted at
yomidi@wendel.com
Protecting Your Business From Liability Claims Stemming From COVID-19 Exposure
June 01, 2020 —
Andrew Hamelsky, Jenifer Scarcella & Joshua Tumen - White and WilliamsBusinesses of every nature – including grocery stores, banks, daycares, gyms and restaurants – may face increasing liability claims from customers and third parties claiming to have been exposed to the novel coronavirus, or COVID-19, while at their location. The novel virus raises issues as to whether businesses have a heightened duty of care to their customers, and what type of exposure businesses face if a customer claims to have been exposed to COVID-19 while at their premises.
Recently, a lawsuit was filed against Princess Cruise lines for gross negligence in allowing passengers to be exposed to COVID-19 on a cruise ship. The lawsuit alleges that the cruise ship was allowed to go out to sea knowing that it was infected from two previous passengers who came down with symptoms of COVID-19. It further claims that the passengers were not warned of the potential exposure either before or after they boarded the ship.
In other news reports around the country, business owners have reported taking extraordinary precautions to prevent customers’ risk of contracting COVID-19. For example, one grocery store recently reported that it discarded $35,000 worth of food after a customer coughed on fresh produce.
Reprinted courtesy of White and Williams LLP attorneys
Andrew Hamelsky,
Jenifer Scarcella and
Joshua Tumen
Mr. Hamelsky may be contacted at hamelskya@whiteandwilliams.com
Ms. Scarcella may be contacted at scarcellaj@whiteandwilliams.com
Mr. Tumen may be contacted at tumenj@whiteandwilliams.com
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EEOC Focuses on Eliminating Harassment, Recruitment and Hiring Barriers in the Construction Industry
September 09, 2024 —
Aaron C. Schlesinger & Stephen E. Irving - Peckar & Abramson, P.C.The
Equal Employment Opportunity Commission (EEOC), whose mission is to enforce the nation’s anti-discrimination laws, released new guidelines on June 18, 2024, entitled
Promising Practices for Preventing Harassment in the Construction Industry. The guidelines are in support of its Strategic Enforcement Plan for the fiscal years 2024-2028 for combatting systemic harassment and eliminating barriers in recruitment and hiring in the construction industry. With these guidelines, the EEOC has identified harassment as an ongoing issue in the construction industry, and that immediate attention and resolution is required.
The EEOC specifically recommends that the following five core principles that it has found effective in preventing and addressing harassment be implemented by construction industry employers:
- Committed and engaged leadership;
- Consistent and demonstrated accountability;
- Strong and comprehensive harassment policies;
- Trusted and accessible complaint procedures; and
- Regular, interactive training tailored to the audience and the organization.
Reprinted courtesy of
Aaron C. Schlesinger, Peckar & Abramson, P.C. and
Stephen E. Irving, Peckar & Abramson, P.C.
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com
Mr. Irving may be contacted at sirving@pecklaw.com
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Uniformity in Florida’s Construction Bond Laws Brings About Fairness for the Industry
August 17, 2020 —
Gary L. Brown - Construction ExecutiveBefore Florida updated its laws for construction bonds, there were some significant differences between how liens and bond claims were litigated. Forms and procedures lacked uniformity that created unnecessary challenges for the construction industry and legal practitioners serving the industry.
Now, more consistency among the laws should benefit contractors, as well as lower-tiered subcontractors and suppliers. Since the updates were instated in October 2019, some of the procedures and rules used for lien enforcement have been extended to bond claims, which may make it easier to resolve differences over payment and performance.
That should come as a relief to local contractors and law firms, as well as to the numerous developers and construction companies based outside of Florida that operate in the state or are considering doing so. Florida is now the number one destination for new residents, especially from high-tax states, according to IRS data. With them come new homes, retail centers, offices, industrial space, roads and other infrastructure in what is now the third-most-populous state in the nation.
Reprinted courtesy of
Gary L. Brown, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Brown may be contacted at
gbrown@kklaw.com
