Around the Nation, June 2012

COLORADO

Billed but Not Paid

In a trilogy of decisions, the Colorado Supreme Court determined that the contract exception to the collateral source rule has an evidentiary component that precludes the defendant from offering into evidence the amounts actually accepted by medical service providers in satisfaction of bills. When taken in conjunction with a decision issued last year from the court on the issue of post-verdict offsets, the decisions could result in medical damage awards that substantially exceed actual damages incurred (in one Colorado case, the billed amounts were eight times higher than the amounts actually paid for medical services). As a result of these decisions, defendants will now have to engage in thorough discovery on the issue of reasonable value of medical services and retain experts to address the question.-Colorado State Co-Chair Heather A. Salg

ARIZONA

Don’t Eat the Snow

For years, Arizona ski resort Arizona Snowbowl has been battling for the rights to use reclaimed water for snowmaking. In 2005, the first suit to stop the resort from making artificial snow from reclaimed water was filed on behalf of Native American tribes and environmental groups. They lost in the U.S. District Court, as well as in the Ninth Circuit Court of Appeals. In 2009, the Supreme Court declined to accept the matter for review. That same year, in an attempt to present another hurdle to stall the resort’s expansion plans, the same counsel brought virtually the same claims under different plaintiffs, arguing that the use of reclaimed water was a violation of religious freedoms. A federal appeals court recently ruled on this “new” claim, recognizing that the second suit was filed “for no apparent reason other than to ensure further delay and forestall development.” Owners of the resort are seeking recovery of more than $270,000 in attorney fees for what the appellate court deemed “abuse of the judicial process.”-Arizona State Lead Chair William A. Nebeker

NEW YORK

Eligibility Changes for Excess Medical Malpractice Insurance

Since 1986, New York State’s Section 18 program has provided physicians and dentists with first layer excess medical malpractice insurance coverage at no cost, with limits of $1 million per incident/$3 million aggregate. However, recent legislation has been enacted to temporarily change the eligibility requirement. In order for a physician or dentist to be eligible to receive coverage for the 2012-2013 policy year, which stars July 1, 2012, they must have had coverage for the prior three years. The new legislation also calls for the Superintendent of Financial Services to review program requirements and recommend changes for the following policy year. It is thought that this temporary eligibility change is due to the legislature’s desire to keep the cost of funding the program at the current level, which is approximately $127 million.-New York State Lead Chair Michael Browdy

NEW JERSEY

Accommodating Perceived Disability

In Dennis v. County of Atlantic et al., Civ. A. No. 09-6171(NLH) (AMD) (March 28, 2012), the U.S. District Court of New Jersey held that, under the Americans with Disabilities Act (ADA), a public employer does not have to provide a reasonable accommodation for an employee’s “perceived disability.” A corrections officer was hired pending completion of physical training. An exam revealed high triglyceride levels, but subsequent tests were normal. The officer requested medical withdrawal because of the lengthy testing. Officials denied the request, and the officer was dismissed for absenteeism. The officer sued claiming that he was denied a reasonable accommodation for his perceived disability (the condition that the defendants thought he had). The court held that, even if the defendants thought the officer suffered from a disability that he did not have, they had no obligation to accommodate him under the ADA.-New Jersey State Lead Chair Stefani Schwartz

Washington, D.C.

Clarifying the Law of Defamation

In Rosen v. AIPAC No. 11–CV–368. (D.C. Apr. 26, 2012), Rosen alleged that AIPAC, his employer, made a defamatory statement that an employee’s behavior “did not comport with the standards that [the employer] expects of its employees.” Rosen alleged that the statement was false and defamatory, and that if the employer had the referenced “standards,” they would be provable as facts entitling him to a trial. If they did not have provable standards, the falsity of the statement would be clear and its defamatory impact demonstrable. The court noted that deposition testimony demonstrated that the employer’s various unwritten “standards” were too subjective, amorphous, and susceptible to multiple interpretations to make any of them proof of a particular, stated content, especially since they were identified only by one general, collective word standard. Thus, they were not provably false and, therefore, not defamatory.-Washington, D.C. Co-Chair William J. Carter

TENNESSEE

Certifiable Influence

The Tennessee Commissioner for Commerce and Insurance issued a bulletin indicating that certificates of insurance must be consistent with the underlying policy. Any attempt to amend, expand, or alter the terms of an insurance policy through a certificate of insurance will be considered to be an unfair trade practice and subject the producer’s license to disciplinary action. The commissioner further stated that a certificate of insurance does not modify or amend the policy or confer any rights under the policy to the certificate holder.-Tennessee State Lead Chair James Wright

OHIO

Young Drivers Targeted by Texting Law

Ohio is set to become the 39th state to ban reading, writing, and/or sending a text message while driving. HB 99 will make texting while driving a primary offense for teenagers under 18—meaning teens may be specifically pulled over for violating the law. For adults, texting while driving will be a secondary offense. Authorities may not stop adult drivers to investigate texting while driving but may cite adults for texting if they are stopped for a separate offense. Minors could be fined $150 for a first offense and have their licenses suspended for 60 days. Repeat offenders could face a fine of $300 and a one-year license suspension. This law will also make Ohio the first in the country to prohibit drivers younger than 18 from using any electronic device other than a GPS while driving.-Ohio Publications Committee Chair Jonathan P. Saxton and committee member Sarah Lovequist