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Connecticut Dermatology Group, PC et al. v. Twin City Fire Insurance Company et al.

February 2023 • Source: Melick & Porter, LLP

The Connecticut Supreme Court recently joined many other state courts when it affirmed lower court rulings against policyholders seeking coverage for “direct physical loss” as a result of the COVID-19 pandemic. In Connecticut Dermatology Group, PC et al. v. Twin City Fire Insurance Company et al., the Plaintiffs, owners and operators of healthcare facilities in Connecticut who were insured under separate but identical all-risk commercial insurance policies issued by the Defendants, argued that they were entitled to coverage under the policies’ loss of business income and civil authority provisions because they suffered certain business-related losses during the pandemic.

The Superior Court held, inter alia, that the policies’ Virus Exclusion clearly and unambiguously precluded the Plaintiff’s claims from coverage. The Exclusion stated, in part, that “any claim in which a virus is present anywhere in the causal chain leading to the claimed loss or damage, regardless of the magnitude or geographical confines of the effects of the virus” would be precluded from coverage under the policy. The Superior Court rejected the Plaintiffs’ argument that the absence of the word “pandemic” from the Exclusion precluded its application to pandemics in general, commenting that the “presence, growth, proliferation, spread, and activity” of the COVID-19 virus led inexorably to the pandemic that caused the Plaintiffs’ losses.

On appeal to the Supreme Court, the Plaintiffs contended that the trial court incorrectly concluded that the Exclusion applied to their claims. The Defendants disagreed and argued that as an alternative ground for affirming the trial court’s ruling, coverage did not apply because there was no “direct physical loss of or physical damage to” any property insured by the policies. The Defendants made particular reference to the policy provisions stating that the carrier “will pay for direct physical loss of or physical damage to covered property at the premises” and the definition of covered property, which included permanent fixtures, machinery and equipment, and building glass.

The Court agreed with the Defendants, relying on the Second Circuit’s reasoning in Farmington Village Dental Associates, LLC v. Cincinnati Ins. Co., 21-2080-CV, 2022 WL 2062280 (2d Cir. June 8, 2022), in which the Second Circuit held that coverage was not available for losses incurred as a result of the suspension of business activities during the COVID-19 pandemic where the policy expressly provided coverage only for “accidental physical loss or accidental physical damage.” The Court rejected the Plaintiffs’ arguments that they had suffered a physical “loss” of the insured premises simply by not being able to use the premises, because there was no physical or tangible alteration to the premises, noting that “use of property” and “property” are not the same thing. The Court further rejected the Plaintiffs’ argument that the erection of physical barriers on the premises constituted “physical repairs.” The Court went on to conclude that “the plain meaning of the term ‘direct physical loss of property’ does not include the suspension of business operations on a physically unaltered property in order to prevent the transmission of the coronavirus.”

The Court’s decision serves as a reminder to insurance carriers and policyholders as to the COVID-19 pandemic’s impact on the availability of insurance coverage for business losses that are incurred.

A copy of the decision may be read here: https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR346/346CR9.pdf

 

Glassman, Wyatt, Tuttle & Cox, P.C. Hires New Attorneys, Stephanie Berish & Holly Worley

October 2022 • Source: Glassman, Wyatt, Tuttle & Cox, P.C.

Glassman, Wyatt, Tuttle & Cox, P.C. is pleased to announce that Stephanie Berish and Holly Worley have joined its firm.

Stephanie has a Bachelor of Fine Arts in Sculpture and Juris Doctor from University of Memphis School of Law. Stephanie clerked for Chancellor Walter L. Evans in Shelby County Chancery Court, Part 1, for a year after obtaining her law license. Prior to joining Glassman, Wyatt, Tuttle & Cox, P.C., Stephanie also worked as an immigration attorney for the non-profit, Advocates for Immigrant Rights. Stephanie enjoys cooking new and interesting recipes and spending time with her family.

Holly received her law degree from Samford University, Cumberland School of Law in 2017. Holly’s practice areas include: Personal Injury, Transportation Litigation, Contract Disputes, Legal Malpractice Defense, Entertainment Law and Real Estate. In addition to practicing law, Holly is an adjunct professor at Delta State University where she teaches Entertainment Law through the Delta Music Institute. Holly also enjoys volunteering with The Life Church and the Memphis Dream Center.

Glassman, Wyatt, Tuttle & Cox, P.C. is thrilled to have Stephanie and Holly as part of their team. Please join in welcoming them to the firm.

 

Compelling Settlement Agreements in Multi-Party Litigation in South Carolina

October 2022 • Source: Laura Paton and Paul Sperry, Copeland, Stair, Valz & Lovell

In South Carolina, most defense counsel in cases with multiple defendants ask for settlement information as a matter of course. The reason? Under the South Carolina Apportionment Statute,FN1 a defendant found liable is entitled to request a “set-off” of the amount the Plaintiff has already collected from settling defendants prior to trial as long as the Plaintiff is seeking the same damages at trial. This right to a setoff mitigates the fact that settling defendants are excluded from the verdict form. While the non-settling defendants can argue at trial that the settling defendant is the real “bad actor,” the jury may only apportion fault to the Defendants and Plaintiffs on the verdict form and that culpability must equal 100%.   Unfortunately, most Plaintiff’s attorneys object to discovery requesting disclosure of settlement sums.  Typical objections to the discovery of settlement information include: 1) the information isn’t “ripe” until there is an actual verdict; 2) the ADR rules mandate that settlement communications are confidential and protected from disclosure; FN2 and 3) production of any settlement agreements marked “confidential” by the parties cannot be produced without violating the agreement.

However, “South Carolina has a long history of maintaining open court proceedings and records . . . .” FN3  In order for a settlement to remain confidential or be sealed, the party seeking to enforce the confidentiality provision is required to file a motion to seal that has to address a number of specific factors explaining the need for the settlement to remain private. FN4  Prior to ruling on the motion the Judge must consider the following:

  1. the public professional significance of the lawsuit;
  2. the perceived harm to the parties from disclosure;
  3. why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and
  4. why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.

FN 5

In addition to the principle that discovery should be broad and rarely limited, Rule 41.1, SCRCP should make it very difficult for settlements to remain confidential in most multi-party lawsuits. Nevertheless, many Plaintiff’s attorneys will essentially ignore Rule 41.1, SCRCP when declaring settlements are confidential. That leads to the burden being place on the non-settling Defendant to file a motion to compel a response to a discovery request for settlement documents. Despite the shifting of the burden on which party should be filing a motion, in order to properly advice both clients and their insurance carriers of verdict exposure, it is important to file a motion to compel any discovery requests related to settlements.

FN1: S.C. Code Ann. § 15-38-15 Liability of defendant responsible for less than fifty per cent of total fault; apportionment of percentages; willful, wanton, or grossly negligent defendant and alcoholic beverage or drug exceptions.

FN2: SC R ADR Rule 8

FN3: Rule 41.1(a), SCRCP

FN4: Rule 41.1(b), SCRCP

FN5: Rule 41.1(c), SCRCP

 

A Picture is Worth a Thousand Words: Discussion of Strategies to Move for Summary Judgment in a Premises Liability Case in Florida

November 2022  Source: Frank Canales, Baumann, Gant and Keeley, P.A.

Revised and Edited: Gary Baumann, Brendan Keeley, and Jerry Biondi, Baumann, Gant and Keeley, P.A.

It is never easy to evaluate a case’s exposure where an elderly Plaintiff with prior neck surgeries is re-injured, allegedly as result of my client’s negligence.  The damages and injuries are presumptively in favor of the “eggshell” Plaintiff. Picking up a file with half of the battle lost may be daunting. But, if fault is in your favor, I recommend applying a narrow approach in discovery, writing succinctly, and connecting with the audience to obtain a positive result for your clients. This note will discuss strategies to fight back on the element of fault in a premises liability case.

In Florida, the pure comparative fault standard allows for claims to proceed to trial notwithstanding a plaintiff who is largely at fault. For example, taking a plaintiff as described above, the amount of recovery may be significant even when my defendant client is deemed to be 5% at fault. Thus, prevailing in a summary judgment motion in a premises liability case in Florida is worth analyzing, especially if your motion was only supported by Plaintiff’s own testimony and a picture of the alleged dangerous condition—here, it was a platform built with cinderblocks and wood boards. 

The subject dangerous condition

Narrow Discovery and Succinct Writing Strategy

The facts are simple. Plaintiff went on a boat trip, stepped on the platform built by a tenant at my client’s property, took several steps, and fell to the side. She re-injured her neck. In this eggshell Plaintiff case, I initially sought to obtain records, statements, and depositions of all potential fact witnesses to corroborate the alleged fall. However, after some thought, this strategy would only increase the costs of defense and would be counterproductive for my motion for summary strategy that was early discussed in the case with the adjuster. So, I proceeded to give her the benefit of the doubt that the fall occurred, that my client had knowledge of the dangerous condition, and that it had been in place for many months.

It may be the instinct of many lawyers to bombard a jury with all the favorable evidence. An overkill approach—or gilding the lily--is unwise. The same is true when filing for a motion for summary judgment, surgical precision in the facts is essential. Thus, while a complete and thorough investigation of fault is absolutely necessary to prepare for trial, this strategy only opens up avenues of attack and rebuttal at a motion for summary judgment juncture. Sometimes the best strategy is to use the words of Plaintiff against her.

After completing substantial legal research and receiving several cancellations from the Plaintiff of my client’s deposition and the tenant at my client’s property that built the subject platform, I decided to file for summary judgment with only three pieces of supporting evidence: 1) Plaintiff’s lease agreement with my client, 2) Plaintiff’s deposition, and 3) the picture of the platform. While several witness statements in our favor were obtained, including my client’s words, I deliberately decided to not include them in the motion to foreclose Plaintiff’s opportunity of further rebuttal discovery and to narrow the issues in front of the court to our strongest summary judgment issue. Here, it was Florida’s Open and Obvious Danger Doctrine.

Connecting with Your Audience

While I didn’t emphasize the age of the Plaintiff in my motion, in preparation of the summary judgment hearing, I started to think about railroad cases and attractive nuisance cases as potential arguments against my position. So, at the hearing, I emphasized the age of the Plaintiff and preexisting injuries to show both that the Plaintiff’s age and maturity showed conscious decision making and that she should have taken necessary precautions to avoid getting injured from dangerous activity of stepping and walking on wood boards that were supported by cinderblocks. Of course, the picture of the dangerous condition was compelling, too. The judge agreed at the summary judgment hearing:

summary judgement has its place. And in this case, this is one of them. There is just no way that any reasonable person -- this -- this thing is so open and obvious that there is no way that any reasonable person would get on there and not wonder if they were in peril…I wasn't sure of the age of [] the plaintiff, but I know at my age, when I look at that thing, I'm thinking there isn't any way I'm going to get on -- step on that thing. Not any way in heck. I will get my shoes muddy before I will walk on that. That's just crazy. That's just crazy. That's silly…

…I mean, to me, what came to mind was, you know, I wonder if this plaintiff would []see a tree fort somewhere 30 feet above the ground and think that was okay too.”

From the bench, the court ruled that Florida’s Open and Obvious Doctrine entitled my client to a full summary judgment in this premises liability case. Obtaining a favorable ruling and saving the client’s thousands of dollars in expert discovery should motivate more defense lawyers to push for early motions for summary judgments and to fight back in cases where the evidence shows that a Plaintiff is significantly at fault—even if the motion is for partial summary judgment. 

 

Payment and Costs Associated with Ransomware Attack Are Not Covered by Policy Requiring Direct Physical Loss or Damage

December 2022 • Source: Gary L. Nicholson, Gallagher Sharp LLP

In EMOI Servs., L.L.C. v. Owners Ins. Co., 2022-Ohio-4649, the Supreme Court of Ohio reinstated the grant of summary judgment in favor of an insurer relative to a claim by an insured for a ransomware attack. In particular, the Supreme Court concluded that ransom payment and costs associated with investigating and remediating the ransomware attack and upgrading its security systems were not covered by an electronic equipment endorsement in the insured’s business owners insurance policy. In so doing, the Supreme Court rejected the lower appellate court’s conclusion that such payment and costs may be covered absent any damage to hardware. Focusing on the language of the endorsement, the Supreme Court found that it clearly and unambiguously required that there be direct physical loss of, or direct physical damage to, electronic equipment or media.

The Supreme Court noted that all examples of covered media in the definition section of the endorsement were materials of a physical nature, i.e., “film, magnetic tape, paper tape, disks, drums, and cards”; and that “computer software” was included within the endorsement’s definition of “media” only insofar as it was “contained on covered media”. The Supreme Court held that the most natural reading of “direct physical loss of or damage to” in the endorsement therefore was that the insured was covered “for direct physical loss of its media and insured for direct physical damage to its media”; and that computer software could not experience “direct physical loss or physical damage” because it does not have a physical existence. (Emphasis in original.) Software is essentially nothing more than a set of instructions that a computer follows to perform specific tasks.

 
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