Segal McCambridge Legal Blog

Today, the article I wrote with my colleague John Lee, "Climate Change Claims: The Next Y2K Insurance Litigation Scare?" appears in the current issue of Business Insurance. Just before publication, I was able to modify the article to include mention of recent developments in one of the cases, AES Corp. v. Steadfast Ins. Co. On April 20, 2012, the Virginia Supreme Court affirmed its prior ruling that Steadfast Ins. Co. has no obligation to defend or indemnify AES Corp. in a climate change liability case arising out of an underlying suit brought by the Village of Kivalina, Alaska. The court found no coverage because the underlying complaint alleged damages that were the "natural and probably consequence" of AES's intentional actions.  Consequently, the court noted that the complaint did not allege a fortuitous accident or event. As we explain in the article, Kivalina is an Inupiat island community in the Arctic waters just off the Alaskan coast. Residents sued ExxonMobil and others energy firms, claiming the companies' activities were contributing to global warming which damaged the sea ice that protects the island's coast from storms. Shoreline erosion, the suit claimed, would ultimately force the population to relocate.

As has happened in similar cases, the judge dismissed the case as centering on "non-justiciable" issues, or issues better addressed through political, rather than judicial, means. The underying case is on appeal.

To read the entire Business Insurance article, click here.  (Free registration required to read the complete article.)

Source: Science Codex
Asbestos workers at significantly increased risk of heart disease/strokes
Workers exposed to asbestos as part of their job are at significantly greater risk of heart disease and stroke than the general population, finds research published online in Occupational and Environmental Medicine.
Women seem to be at greater risk than men, the research indicates.
It is well known that asbestos workers are already prone to serious lung disease, such as mesothelioma and asbestosis, as a direct result of their exposure to asbestos fibres.
The researchers set out to explore the impact of asbestos as an inflammatory agent on the risk of heart disease and stroke, given that inflammation is now known to have a role in cardiovascular disease.
They analysed cause of death among just under 100,000 asbestos workers taking part in regular voluntary health monitoring and answering questions on levels of exposure for the Asbestos Workers Survey.
The average monitoring period was 19 years, with the average age on the date of the first medical examination being 35.
Most of the men taking part in the survey worked in asbestos removal while most of the women worked in manufacturing.
Over half of the men (58%) and women (52%) were smokers at the time of their first medical examination, proportions which had fallen only slightly (55% and 49%) at the time of their last medical examination. Smoking is a known risk factor for heart attack and stroke.
The research team compared the number of deaths from stroke and heart attacks among these workers between 1971 and 2005 against the number that would be expected to occur in the general population (standardised mortality ratios).
During the study period, 15,557 people died from all causes. Stroke accounted for just over 1000 deaths while heart disease accounted for another 4000.
Based on the standardised mortality ratios, asbestos workers were significantly more likely to die of cardiovascular disease than the general population, even after taking account of smoking.
Male asbestos workers were 63% more likely to die of a stroke and 39% more likely to die of heart disease. The corresponding figures for women were, respectively, 100% and 89%.
And there was some evidence that the longer the duration of exposure to asbestos, the greater was the likelihood of dying from heart disease, even after taking account of smoking.

Company wins asbestos suit on 2nd try

JACKSON, Mississippi — An asbestos lawsuit that once resulted in a $322 million verdict for a Mississippi man has turned in favor of the company he sued.

Thomas Brown’s lawyers had called the verdict last year the largest asbestos award for a single plaintiff in U.S. history. But it wasn’t long before the Mississippi Supreme Court removed the judge in the case for allegedly not disclosing his parents had been involved in similar asbestos litigation.

A specially-appointed judge, William Coleman, threw out the verdict and ordered another trial. The lawsuit was moved to Jones County, where a jury on Wednesday ruled in favor of Union Carbide Corp.

Brown, of Brookhaven, claimed he inhaled asbestos dust while mixing drilling mud manufactured by Union Carbide. He said he was required to take oxygen 24-hours a day.

“Eight experts, including an independent medical examiner, testified at trial that Mr. Brown, like many plaintiffs who have asserted similar asbestos allegations, did not have an asbestos-related disease caused by UCC,” company spokeswoman Sarah Opperman said Friday in a statement.

“UCC is gratified that the jury carefully considered the evidence and reached this unanimous decision,” she said.

Brown’s Dallas lawyer, Allen Hossley, also didn’t immediately respond to a message requesting comment.

After the first trial and record verdict, Union Carbide asked Smith County Circuit Judge Eddie Bowen to toss out the award. They also asked Bowen to step down from the case. When Bowen didn’t respond, Union Carbide went to the Supreme Court and asked the justices to remove him.

Union Carbide claimed Bowen was a practicing attorney when his father and mother sued Union Carbide for $1 million. Union Carbide argued that Bowen’s bias and prejudice against the company was clear from his rulings, comments in front of the jury, and his coaching of Brown’s attorneys in questioning witnesses.

Union Carbide is a wholly owned subsidiary of The Dow Chemical Company, according to its website, with over 2,400 employees. Its corporate center is in Houston and it has other locations in Texas, New Jersey, Louisiana and West Virginia.

As announced on its site, the CMS will roll out a service in July 2012 called “The Medicare Secondary Payer Recovery Portal” to allow attorneys, insurers, beneficiaries, and TPAs online access to case information. Per the CMS, the Portal will be “[a] new online Self-Service Tool to help manage your Medicare recovery case.”

The CMS provided the following information on the Portal:

The Centers for Medicare & Medicaid Services (CMS) is in the process of implementing a new web-based tool designed to assist in and accelerate the resolution of Liability Insurance, No-Fault Insurance, and Workers’ Compensation Medicare recovery cases. The new tool is called, The Medicare Secondary Payer Recovery Portal (MSPRP).

The MSPRP will give users (attorneys, insurers, beneficiaries, and TPAs) the ability to access and update certain case specific information online. Activities that currently require written communication or telephone calls to the Medicare Secondary Payer Recovery Contractor will soon be able to be done through the portal.

The MSPRP will allow users the ability to electronically perform the following activities:

• Submit Proof of Representation or Consent to Release documentation – Instead of mailing in an authorization, users will be able to upload authorizations through the portal.
• Request conditional payment information – Requesting an updated conditional payment amount or a copy of a current conditional payment letter will be as simple as clicking a few buttons.
• Dispute claims included in a conditional payment letter - Users will be able to view the claims listed on the conditional payment letter and dispute unrelated claims online.
• Submit case settlement information – Users will be able to input settlement information online and upload a copy of the settlement documentation through the portal.

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