Around the Nation: October 2014

CALIFORNIA: Conflicting Right to Repair Act Decisions
Are construction defect lawsuits that allege property damage subject to the Right to Repair Act (CA Civil Code Section 895 et seq.) or not? The answer is “no,” according to Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) and Burch v. Superior Court (2014). However, the answer is “yes,” according to KB Home Greater Los Angeles Inc. v. Superior Court. Either the California Supreme Court or the state legislature needs to provide a definitive answer because, until they do, insurers will incur significant legal fees litigating this threshold issue before the merits of the property damage are even addressed.—From Orange County Chapter Member Robert A. von Esch IV, Esq.

OREGON: Expert Affidavits and Opinions
Looking to defeat a summary judgment motion, plaintiffs in Two Two v. Fujitec Am Inc. submitted an ORCP 47 E “expert” affidavit. The affidavit did not disclose the expert’s name or detail the expert’s opinion but stated that the opinion supported claims that the defendant was negligent, offering a sufficient basis for denying the motion. The defendant argued that the affidavit was insufficient because it did not address causation. The Oregon Supreme Court held that a reasonable person could understand the affidavit to mean that the expert would opine on all issues necessary to defeat the motion and, therefore, created a genuine issue of material fact precluding summary judgment.—From CLM Member Jack Levy

ILLINOIS: Monitoring Nursing Home Residents
The Illinois attorney general recently proposed legislation that would allow monitoring devices in a nursing home resident’s room. Any recordings would be admissible as evidence in court, and tampering with a device or obstruction of a recording could result in criminal charges. The resident and any roommate must consent to monitoring, and the resident or the family of the resident would be responsible for purchasing, installing, and maintaining the devices. The intent of the bill is to help deter abuse or neglect in nursing homes and to help hold responsible parties accountable for abuse or neglect. If this legislation passes, Illinois will be the sixth state to allow such monitoring, following Maryland, New Mexico, Oklahoma, Texas, and Washington.—From CLM Region 6 Co-Chair James A. Foster and Greater Chicago Chapter Member Joseph A. Panatera

MASSACHUSETTS: Attorney-Conducted Voir Dire
Massachusetts will now join 39 other states in allowing attorney-conducted voir dire in both civil and criminal trials in the Superior Court. Governor Deval Patrick signed House Bill 4123 into law on Aug. 6, 2014, and it will take effect 150 days after it was signed. HB 4123, known as the Trial Court Bill, will allow the court to maintain broad discretion to impose “reasonable limitations” on the process by, for example, limiting the time available for questioning. It also will allow counsel to suggest specific dollar amounts for damages at trial. HB 4123 was passed over opposition from the trial court, which argued that it would impose additional costs and delays.—From CLM Members James M. Campbell and Tony K Lu

INDIANA: Set-Off Provisions in UM Coverage
In Justice v. American Family Mut. Ins. Co., the Indiana Supreme Court changed the legal analysis regarding the application of set-off provisions found in underinsured motorist coverage. The issue in the case was whether the set-off provision in the policy required a set-off from the value of the claim or from the limits of liability. The Indiana Supreme Court found that the policy language unambiguously provided for a set-off against the policy limit. The court also reviewed Indiana’s underinsured motorist statute I.C. § 27-7-5-2(a), which requires underinsured motorist coverage to be made available in limits of no less than $50,000. The court held that the statutory minimum of $50,000 is a floor below which the set-off provision cannot go.—From CLM Member Anna Mallon

WASHINGTON, D.C.: Contract-Defined Terms Hold in Exclusion
In Carlyle Investment Management LLC v. Ace American Ins. Co., et al., No. 2013 CA 003190 B (D.C. Super. Ct. May 15, 2014), the District of Columbia Superior Court held that when an insurance contract’s definitions of relevant terms brings a claim within the scope of an exclusion in the policy, it does not matter whether those same terms could mean something else in the context of a different case or a different contract. Rather, the contract definitions of the terms controlled the court’s analysis. The court held that the exclusion was not ambiguous—it excluded professional services claims (a defined term) arising from professional services (a defined term) provided to Carlyle.—From CLM Member Kelly M. Lippincott