Monday, July 25, 2011

Health and insurance law updates and garlic-lemon chicken with arugula tossed with walnuts, balsamic vinagrette and goat cheese

Insurance -- Discovery -- Claim file -- Privilege -- Trial court erred in ordering production of documents from insurer's claim file in first-party dispute over medical bills without considering attorney-client privilege objection -- Trial court further erred in ruling that claim file notes and other internal documents were not protected by work product privilege, in failing to consider objections to relevancy of documents sought and in overruling preserved objections to production without affording parties adequate notice and opportunity to be heard -- Order compelling production of materials for which attorney-client and work product privileges are invoked presents potential for irreparable harm warranting certiorari relief
VIEW OPINION

Insurance -- Coverage -- Amount of loss -- Appraisals -- Insured is not entitled to appraisal, where coverage for hurricane claim has been denied in its entirety because insurer has unequivocally stated that no coverage is available under policy and that policy is void -- Because issue of whether claim is covered by policy is a question for judicial determination, when the claim has been denied in its entirety based on lack of coverage, appraisal is not appropriate
Reported at 23 Fla. L. Weekly Fed. D9a

Insurance -- Hurricane damage to condominium -- Bad faith -- Certiorari -- Insurer's petition for writ of certiorari, seeking quashal of circuit court orders that allowed insured to amend complaint to add bad faith and punitive damages claims after appraisal award had been confirmed but before entry of final judgment on policy-phase issues -- Petition for writ of certiorari denied where insurer did not establish irreparable, material harm, a threshold requirement for issuance of writ of certiorari -- Order permitting amendment to add an allegedly premature bad faith claim does not satisfy irreparable harm requirement for certiorari -- Court recedes from decisions which have granted a petition for writ of certiorari when irreparable harm seems possible rather than imminent and which have broadly held that certiorari is available to challenge a premature bad faith claim or premature bad faith discovery
Reported at 36 Fla. L. Weekly D1558a

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where circuit court appellate division reversed summary judgment which county court had entered in favor of insured's assignee in action against insurer, but affirmed county court order requiring insurer to pay expert witness fee for assignee's expert, circuit court departed from essential requirements of law in denying award of attorney's fees to assignee for prevailing on expert witness fee issue
Reported at 36 Fla. L. Weekly D1553b

Public Employee: FLORIDA PUBLIC EMPLOYEES SUE STATE OVER CHANGES IN RETIREMENT BENEFITS, Williams v. Scott, 21 No. 40 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage July 15, 2011
A group of 11 public employees has sued the state of Florida, claiming that the government cannot legally make changes to its retirement system with respect to salary deductions and cost-of-living adjustments. The plaintiffs claim that the plan in Senate Bill 2100, which was signed by Republican Gov. Rick Scott June 22 and took effect July 1, violates the Florida Constitution. They say the plan interferes with the deal they and others had with the state and impairs their right to collectively bargain.


Auto: BUS OPERATOR, DRIVER NOT COVERED FOR PASSENGERS' TB INFECTIONS, Lancer Ins. Co. v. Garcia Holiday Tours, 21 No. 40 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage July 15, 2011
An auto insurer is not required to cover a $5 million verdict against a tour bus operator and a driver for transmitting tuberculosis to passengers, the Texas Supreme Court has ruled in an issue of first impression. The passengers' exposure to the disease resulted from causes other than the use of the bus, the high court said, reversing a state appeals court decision against Lancer Insurance Co.According to the opinion, a driver for tour bus operator Garcia Holiday Tours was infected with tuberculosis.

Right to Jury Trial: INSUREDS ENTITLED TO JURY TRIAL ON BAD-FAITH CLAIMS, N.J. HIGH COURT SAYS, Wood v. N.J. Mfrs. Ins. Co., 21 No. 40 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage July 15, 2011
In a case of first impression, New Jersey's highest court has determined that policyholders' bad-faith claims against their insurance company for failure to settle within policy limits are traditional contract claims that give insureds the right to a trial by jury. "Fundamentally, and regardless of how it is couched or what label is affixed to it, a Rova Farms bad-faith claim is and always has been a breach-of- contract claim.”

Health Benefits: FEDS ABANDON SAME-SEX MARRIAGE BAN BUT FIGHT SPOUSAL HEALTH BENEFITS, Golinski v. Office of Pers. Mgmt., 21 No. 40 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage July 15, 2011
The Justice Department has reversed course in a federal employee's lawsuit accusing the United States of unlawfully refusing to offer same-sex couples equal health care options, now saying the law banning recognition of same-sex marriage is unconstitutional. The government's about-face came in response to employee Karen Golinski's summary judgment motion filed in the U.S. District Court for the Northern District of California.

Discrimination: MORTGAGE INSURER BIASED AGAINST WOMEN ON MATERNITY LEAVE, U.S. SAYS, United States v. Mortgage Guaranty Ins. Corp., 21 No. 40 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage July 15, 2011
The Justice Department alleges in a Pennsylvania federal court lawsuit that Mortgage Guaranty Insurance Corp. discriminates against women who are on maternity leave by refusing to insure their mortgages. The government says MGIC's allegedly biased practices violate the Fair Housing Act, 42 U.S.C. 3601, which prohibits discrimination in housing and mortgage lending based on race, color, religion, national origin, gender, disability and familial status.

Employee Theft: NO COVERAGE FOR CUSTOMER LISTS STOLEN BEFORE POLICY ISSUED, JUDGE RULES, Response Pers. v. Hartford Fire Ins. Co., 21 No. 40 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage July 15, 2011
An insurance policy's discovery provision barred coverage for the alleged theft of customer lists by a staffing agency's former employees because the agency knew about its losses two years before the policy was even issued, a New York federal judge has ruled. U.S. District Judge Denise Cote of the Southern District of New York found that when Response Personnel Inc. sued the employees in 2004 over the allegedly stolen customer lists, the staffing firm acknowledged its losses.

Life Insurance: METLIFE RENEGED ON LIFETIME BENEFITS GUARANTEE, GM RETIREES SAY, Haviland v. MetLife, 21 No. 40 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage July 15, 2011
Forty-five retired General Motors workers have filed a class-action lawsuit in Michigan state court, accusing Metropolitan Life Insurance Co. of unlawfully reducing their guaranteed life insurance benefits. The retirees sued MetLife in the Wayne County Circuit Court over a promise that they would receive full life insurance benefits for the rest of their lives. The complaint states claims for conversion, unjust enrichment, breach of contract, fraud, intentional infliction of emotional distress.

Life Insurance: NEW YORK SUBPOENAS 9 LIFE INSURANCE COMPANIES, SOURCE SAYS, 21 No. 40 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage July 15, 2011
NEW YORK, July 5 (Reuters) - New York's top legal officer has sent subpoenas to nine leading life insurers, seeking information about their practices in identifying and paying out policies for deceased customers, according to a person familiar with the matter. New York Attorney General Eric Schneiderman sent subpoenas in June to units of AXA SA, Genworth Financial Inc., Guardian Life Insurance Co. of America, Manulife Financial Corp., Massachusetts Mutual Life Insurance Co., MetLife Inc., etc.

Title Insurance: CALIFORNIA FEDERAL JUDGE ORDERS ARBITRATION IN TITLE INSURANCE DISPUTE, In re Cal. Title Ins. Antitrust Litig., 21 No. 40 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage July 15, 2011
A class-action dispute over whether the nation's largest title insurers and their affiliates monopolized California's title insurance market should be arbitrated in light of a recent U.S. Supreme Court decision, a federal judge in San Francisco has ruled. U.S. District Judge Jeffrey S. White of the Northern District of California agreed with five title insurance companies and their affiliates that the Supreme Court's ruling in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), allowed it.

Mold Damage: COVERAGE DENIAL FOR MOLD DAMAGE NOT BAD FAITH, Rooters v. State Farm, 21 No. 40 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage July 15, 2011
An insurance carrier did not act in bad faith when it refused to pay an insured for mold damage caused by a hailstorm where the policy contained a mold exclusion, the 5th U.S. Circuit Court of Appeals has ruled. The three-judge panel rejected the insured's argument that the carrier should pay to clean up the mold infestation because the condition was caused by water intrusion, a covered peril.Siding with the insurer, the court relied on Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006).

Chinese Drywall: CHINESE DRYWALL-RELATED LOSS NOT AN 'ACCIDENT' FOR COVERAGE PURPOSES, Lopez v. Shelter Ins., 21 No. 40 Westlaw Journal Insurance Coverage 12, Westlaw Journal Insurance Coverage July 15, 2011
An insurance carrier did not act in bad-faith by denying coverage for personal injuries and damage caused by Chinese drywall as the loss was not caused by an "accident," a Mississippi federal judge has ruled. U.S. District Judge Tom S. Lee of the Southern District of Mississippi also ruled that the drywall-related loss was subject to policy exclusions for "contamination" and "faulty materials."In December 2007 Ron and Christie Lopez bought a newly constructed home in Waynesboro, Miss.

Kickbacks: 3RD CIRCUIT REVIVES KICKBACK CLAIM AGAINST HEALTH INSURER, United States v. United Health Group, 21 No. 40 Westlaw Journal Insurance Coverage 13, Westlaw Journal Insurance Coverage July 15, 2011
The 3rd U.S. Circuit Court of Appeals has reinstated a claim accusing insurer United Health Group and a subsidiary of violating the False Claims Act by offering illegal kickbacks to a medical clinic and doctors. Two whistle-blowing former employees properly pleaded the claim under an "implied false certification" theory by asserting that the insurers received Medicare reimbursements despite their "knowing violation" of the Anti-Kickback Statute, the panel said.

Torts -- Medical malpractice -- Attorney's fees -- Trial court erred in awarding attorney's fees and costs pursuant to section 57.105(1) following a mistrial after plaintiff's counsel presented the idea of “doctoring of records” for the first time during voir dire -- Section 57.105(1) is conditioned on section 57.105(4), which states that the motion for attorney's fees may not be filed with the court unless, within twenty-one days of service, the challenged allegation is not withdrawn or appropriately corrected -- Because plaintiff's counsel alleged the “doctoring of records” during jury selection, there was no way to withdraw or appropriately correct that allegation within 21 days after service of the motion, and thus section 57.105(1) was inapplicable -- Even if section 57.105(1) applied, it was impossible for plaintiff to allege such fraud and spoilation in the complaint where the fraud alleged was not fraud on the plaintiff but fraud on the court based on documents obtained during discovery -- Additionally, no independent cause of action exists for first-party spoilation of evidence -- Costs -- An award of costs is not allowed under section 57.105(1), which expressly provides for attorney's fees but makes no mention of costs -- Where nothing in the record suggests that plaintiff's counsel acted in bad faith, trial court could not impose fees pursuant to its inherent authority -- Trial court did not err in granting motion in limine to preclude plaintiff from referencing alleged alteration and concealment of records during second trial where reasonable persons could differ as to whether plaintiff possessed sufficient proof to attack defendant's credibility based on discrepancies in testimony between defendant and other witnesses -- Likewise, trial court's curative instruction to the jury that there was no evidence adduced at trial that records were added following plaintiff's counsel's statements alleging defendant altered records was an appropriate response given that the plaintiff's counsel's statements violated the court's order granting the motion in limine
Reported at 36 Fla. L. Weekly D1562a

Feres Doctrine: SUPREME COURT WON'T HEAR CHALLENGE TO FERES DOCTRINE, Witt v. United States, 7 No. 3 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice July 15, 2011
The U.S. Supreme Court has declined to consider whether a federal law that protects the government from liability for injuries stemming from military service applies to a case involving an Air Force official who died during a botched intubation at a military hospital. U.S. Air Force Staff Sgt. Dean Patrick Witt was hospitalized Oct. 10, 2003, for a "routine" appendectomy at Travis Air Force Base in Fairfield, Calif., court filings say.

Wrongful Death: MICHAEL JACKSON'S DOCTOR SAYS POP STAR GAVE HIMSELF LETHAL DOSE, Jackson v. Murray, 7 No. 3 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice July 15, 2011
The physician implicated in the death of Michael Jackson has alleged in response to a wrongful-death lawsuit filed by Jackson's father that the pop star self-administered the drugs that killed him. Dr. Conrad Murray raises the affirmative defense of assumption of risk in an answer filed in the Los Angeles County Superior Court. He says Jackson "clandestinely self-administered or self-ingested" propofol or other medications the day he died and is therefore responsible for his own death.

Abuse & Neglect: FACILITY'S NEGLECT LANDED MENTALLY ILL MAN IN HOSPICE, SUIT SAYS, McMurtrey v. Northway Health & Rehab., 7 No. 3 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice July 15, 2011
An Alabama nursing facility abused a paranoid schizophrenic resident by allowing him to develop severe pressure sores that resulted in surgery and hospice care, a state court lawsuit alleges. James Ratchford will likely die from the infected sores he developed because of negligent care at Northway Health & Rehabilitation, his cousin Amy McMurtrey claims in a complaint filed in the Jefferson County Circuit Court. According to the lawsuit, Ratchford entered the facility in October 2010 for treatment.

Defective Syringe: PENNSYLVANIA FEDERAL JUDGE DISMISSES SYRINGE DEFECT SUIT, Pusey v. Becton Dickinson & Co., 7 No. 3 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice July 15, 2011
A federal judge in Philadelphia has dismissed a woman's negligence and strict liability suit against Becton Dickinson & Co., finding she cannot prove that a syringe used during a medical procedure caused a bacterial infection in her chest. In dismissing the case, U.S. District Judge Stewart Dalzell said plaintiff Judith Pusey failed to exclude other possible sources of the infection.Pusey said a Becton Dickinson 60-milliliter Luer-Lok syringe caused her infection.  

Expert Testimony: MISSISSIPPI FEDERAL JUDGE TOSSES SUIT OVER DIALYSIS MACHINE INJURY, Cothren v. Baxter Healthcare Corp., 7 No. 3 Westlaw Journal Medical Malpractice 5, Westlaw Journal Medical Malpractice July 15, 2011
Baxter Healthcare Corp. has won summary judgment in a Mississippi product defect lawsuit as a federal judge ruled that a user of its kidney dialysis machine failed to meet a state law requirement to present expert testimony. Amanda Cothren sued the Illinois-based medical equipment maker in 2010 in Mississippi state court, claiming she was injured when her Home Choice Pro automated peritoneal dialysis cycler caused internal injuries because it failed to turn off after each operation cycle.

Independent Medical Examination: MISSOURI HIGH COURT: INDEPENDENT MEDICAL EXAM TRIGGERED NEED FOR AFFIDAVIT OF MERIT, Devitre v. Orthopedic Ctr. of St. Louis, 7 No. 3 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice July 15, 2011
A Missouri man's lawsuit against an orthopedist he said injured him during an independent medical examination was properly dismissed for failure to file an affidavit of merit from a legally qualified health care provider, the state's highest court has ruled. The 6-1 court ruled that the IME was a "health care service that created a limited physician-patient relationship" between the man and the doctor and therefore triggered the state law requiring the filing of an affidavit of merit.

Insurance Coverage Dispute: 5TH CIRCUIT REJECTS COVERAGE FOR OMISSIONS IN RECOMMENDATION LETTER, Preau v. St. Paul Fire & Marine Ins. Co., 7 No. 3 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice July 15, 2011
The 5th U.S. Circuit Court of Appeals has rejected coverage for an $8.2 million verdict against a company owner who omitted in a letter of recommendation that an anesthesiologist employee was fired for abusing Valium and ignoring a page. The unanimous panel said the verdict was attributed to the owner's negligent misrepresentation, not to the anesthesiologist's subsequent improper treatment of a patient at his new employer. The patient's bodily injury would have been covered by the policy.

Physician Error: GOVERNMENT SETTLES LAWSUIT OVER RUPTURED EYEBALL FOR $925K, Goncalves v. United States, 7 No. 3 Westlaw Journal Medical Malpractice 8, Westlaw Journal Medical Malpractice July 15, 2011
The U.S. government will pay nearly $1 million to settle a lawsuit filed by a Connecticut Army veteran who was blinded in one eye after a doctor injected a local anesthetic into his eyeball instead of behind it. The injury to Jose Goncalves' right eye occurred Nov. 1, 2007, at the West Haven Veterans Affairs Hospital during what should have been routine surgery to remove a cataract, according to the complaint filed in the U.S. District Court for the District of Connecticut.

Surgical Error: ILLINOIS MAN BLAMES SURGEON AND FAILURE OF NERVE MONITOR FOR FACIAL PARALYSIS, Wellmaker v. Touchette Reg'l Hosp., 7 No. 3 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice July 15, 2011
An Illinois surgeon, hospital and Medtronic Inc. are among those being sued by a man who says he suffers from partial facial paralysis because the surgeon severed a facial nerve after a Medtronic nerve monitoring system failed during removal of a tumor. Ralph Wellmaker seeks more than $300,000 in damages for the injuries he says he sustained when the NIM nerve monitoring system malfunctioned during his facial operation at Touchette Regional Hospital in Centerville, Ill.

Wrong-Side Surgery: WRONG-SIDE SURGERY SPURS ALABAMA LAWSUIT, Miller v. Univ. of Ala. Health Servs. Found., 7 No. 3 Westlaw Journal Medical Malpractice 10, Westlaw Journal Medical Malpractice July 15, 2011
An Alabama woman says she awoke from surgery to remove a tumor in the area below her right shoulder only to find that the surgeons had operated on her left side instead. Virginia Miller alleges Drs. Martin J. Heslin and Aaron Hoffman negligently operated on the wrong side even though she had had several X-rays and a CT scan that showed the tissue mass was in her right subscapular region. Miller says the radiological examinations were reported to and reviewed by both physicians.

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