Showing 317 posts by Administrator.

Reasonable Disagreement or Fraud? Competing Estimates of Property Damage in First Party Claims

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Absent an outright disclaimer of coverage, a disagreement regarding the scope and amount of covered damages represents the very heart of virtually every disputed first-party property claim. While certainly not all claims presented by policyholders (or their public adjusters) are unreasonable, any lawyer who has defended first-party lawsuits can offer examples of claims with extremely minor damage that quickly turn into five and six figure demands based on estimates that call for repairs or replacement to virtually every element of a home. Take, for example, a minor water leak underneath a single kitchen cabinet that is quickly discovered by the homeowner and repaired, but leaves some minor water staining and warping to that single cabinet. Often, by the time a demand is presented to the carrier, that minor water damage claim has turned into a demand for a complete kitchen overhaul to include replacement of all kitchen cabinets, countertops, flooring, painting, etc. More »

If at First You Do Not Succeed, Try Again Immediately: Illinois Passes Revised Pre-Judgment Interest Statute

Defendants welcomed the news that Illinois Governor J.B. Pritzker vetoed HB3360 which established 9% pre-judgment interest that began accruing as early as the date of a personal injury. Pritzker was critical of the bill as placing too large a financial burden on hospitals, acting as a deterrent to doctors practicing in the state, and the 9% interest rate being out of line with current rates. However, at nearly the exact time the Governor was vetoing that bill, both Chambers of the Illinois Legislature were passing SB72, a revised version of vetoed bill. The Governor has signaled he will sign this version of the bill. More »

A National Approach to Biometric Privacy

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In August, Senators Bernie Sanders (I-VT.) and Jeff Merkley (D-OR.) introduced the National Biometric Information Privacy Act of 2020 (NBIPA), which serves to regulate the collection, retention, disclosure and destruction of biometric information. While NBIPA is awaiting Congressional consideration, its potential effects and nationwide extension make it noteworthy.

As currently drafted, NBIPA limits the collection of personal information to valid business purposes, prohibits the inclusion of written releases in employment contracts, and builds on the Illinois Biometric Information Privacy Act in two major ways. First, NBIPA requires all businesses, regardless of size, to obtain consumers’ opt-in consent before collecting, sharing or using their biometric data, inform consumers of the use and length of term of biometric data, develop and publish a data retention schedule and guidelines for destroying biometric data, and obligates businesses to store, transmit, and protect biometric data in the same or in a more stringent manner as is done for other confidential and sensitive information. Second, NBIPA not only creates enforcement by state attorneys but also creates a private right of action for individuals even if the injury is only a technical violation that does not result in actual damages.[1] More »

COVID Delivers Fraud to the Trucking Industry

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The trucking industry and its insurers were already vulnerable to predatory schemes in a pre-COVID-19 society. The current economic uncertainty and anxiety caused by the virus is unfortunately exacerbating that problem.

Last month, the Justice Department issued new indictments against several individuals in Louisiana, alleging a conspiracy to defraud the trucking industry. The defendants allegedly staged accidents in order to recover money from the trucking company’s carrier. That one case has now led to the indictment of a staggering number of 28 individuals who defrauded insurance companies out of hundreds of thousands of dollars. More »

Changes to Punitive Damages Coming to Missouri

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Last week, the Missouri legislature passed comprehensive changes to the assessment of punitive damages in Missouri. The bill, SB 591, outlines new pleading requirements, a clear burden of proof, and a heightened standard with regard to punitive damages. The bill will now head to the desk of Governor Mike Parson, who is expected to sign these new measures into law. More »

Michigan Governor Signs Executive Order Cutting Red Tape for Motor Carriers During the COVID-19 Pandemic

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Michigan Governor Gretchen Whitmer signed an Executive Order on April 8, 2020, related to the COVID-19 (or “coronavirus”) pandemic to relax transportation regulations. The Order provides that certain requirements administered by the Department of Transportation (“DOT”) are temporarily suspended and must not be enforced for motor carriers providing “critical assistance related to the COVID-19 pandemic during the declared states of emergency and disaster.” This includes: More »

Malpractice Mitigation: Utilizing Professional Standards as a Defense to Claims of Negligence in Epidemic/Pandemic Events

Since the start of the COVID-19 pandemic, there has been one constant--uncertainty. What we think we know is in a state of flux as we gain more and more first-hand knowledge of how the virus operates. This, understandably, leads to confusion in which our understanding of how to stay healthy and safe remains somewhat illusive, for both medical professionals and laypeople alike. There is a daily sea of information and sound bites provided by the media, elected officials, and local and national health professionals; information that is sometimes contradictory. Medical professionals must wade through information daily in order to improve upon the practice and treatment of their ill patients. This begs an important question: What does it mean to the medical professional providing critically-needed medical services when the typical best practice "rules," protocols and standards simply do not fully exist yet due to the "novel" nature of COVID-19?

            While the potential for liability exists for all physicians on a day-to-day basis, this potential increases exponentially with the onset of an epidemic, pandemic or the occurrence of a disaster, whether natural or manmade and even more so when that pandemic involves a new and novel pathogen. For the purposes of this article, the authors focus exclusively on the potential liability borne by physicians and other medical professionals during those times in which their patients are exposed to and/or infected by a disease due to an epidemic/pandemic event such as the present novel COVID-19 crisis. More »

COVID-19 and Business Interruption Claims Under Commercial Property Insurance

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As COVID-19 cases continue to rise in the United States our first thoughts are with those immediately affected and how we all can help slow its further spread. The toll the disease has already taken worldwide is significant, and at present it is hard to predict the ultimate cost both in lives and to our economy.  We are confident that the virus will be brought under control, but in the meantime, our clients will face a multitude of questions regarding potential insurance coverage for losses arising from COVID-19 mitigation efforts. This post considers the potential arguments for and against coverage for COVID-19 business interruption losses under typical commercial property coverages. More »

COVID-19 and Families First

Coauthored by: Matin Fallahi, Law Clerk

In response to the recent COVID-19 pandemic, which has caused economic distress in a short period of time, the United States House of Representatives passed the Families First Coronavirus Response Act (“FFCRA”). After approval from the Senate, the President officially signed the act on Wednesday March 18, 2020. This Act and its long-term impacts are just as unknown as the virus itself.

The legislation provides free coronavirus testing and paid emergency leave for those diagnosed with COVID-19 or those caring for a family member with the virus. The FFCRA applies to any employer with less than 500 employees in hopes to help mitigate the impact of the pandemic in the United States while also providing a sense of hope and security for employees. As such, the Act will largely impact small to medium businesses who previously did not have to provide paid leave under the Family Medical Leave Act (“FMLA”). More »

New Michigan DIFS Order Raises More Questions for Auto Insurers

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On September 20, 2019, the Director of the Department of Insurance and Financial Services of Michigan (“the Department”) issued order number 19-048-M, which has a direct impact on the ability of automobile insurers to implement the recent Michigan No-Fault Reform Act.  Per the Act, most provisions were effective June 11, 2019, with a limited number not taking effect until July 2020.  As would typically be the case, on June 11, 2019, insurers began implementing the new provisions of the No-Fault Act. More »

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