A revised Grieving Families Act is making its way through the legislature in New York, a key part of Michigan’s 2019 no-fault reforms is dealt a blow, and, in Louisiana, a third-party litigation funding disclosure bill gets vetoed.
Michigan
Decision Removes Teeth of No-Fault Reforms
The Court of Appeals’ recent decision in True Care v Auto Club Group upends the utilization review process introduced in 2019’s no-fault reform legislation by finding that it is not a mandatory administrative process. Under MCL § 500.3157a, insurers are permitted to conduct utilization reviews. If an insurer determines the treatment provided was not medically necessary or beyond the reasonable amount of treatment, it can deny the claim based on a utilization review determination. “A physician, hospital, clinic, or other person who disagrees with the insurer’s assessment “may appeal the determination to the [Department of Insurance and Financial Services],” according to the statute. However the use of the word “may” raised the question of whether the DIFS appeal is a mandatory precondition to filing suit against the insurer, or merely an alternative means of resolution? In True Care, the Court of Appeals found the language “may appeal a determination” indicated a permissive, alternate mechanism of resolution rather than a mandatory one.—From CLM Member Nicholas Badalamenti, Collins Einhorn Farrell
Nevada
Cap on Med Mal Damages Set to Rise
A bill signed into law in June would amend the cap on damages in medical malpractice cases. This bill has significant implications for patients and medical professionals alike. Prior to this new law taking effect, the cap on damages in Nevada was set at $350,000 regardless of the number of plaintiffs, defendants, or theories upon which liability may be based. Under the new law (AB404), the $350,000 cap on damages will increase by $80,000 every year for five years, starting on Jan. 1, 2024. Once the cap reaches $750,000 in 2028, it will increase by a flat rate of 2.1% per year. The law also extends the statute of limitations for filing a medical malpractice lawsuit. Beginning Oct. 1, 2023, patients have two years from the date of discovery of the injury, or when they reasonably should have discovered the injury, or up to three years from the date of the incident to bring a lawsuit. Finally, the new law changes the limit on contingency fees for attorneys to a flat fee totaling 35% of the amount recovered.—From CLM Member Richard D. Young, Wood Smith Henning & Berman
Arizona
Photographs Admissible Despite No Expert Testimony
In Eager v. Schlichting, the Arizona Court of Appeals ruled photographs of damages to vehicles after a motor vehicle accident did not require expert testimony to be admissible. In the underlying case, defendant rear-ended the plaintiff and conceded liability, but contested causation and damages. Pretrial, plaintiff moved to preclude photographs of post-accident damage to the involved vehicles, arguing they were “irrelevant and prejudicial unless a biomechanical expert established the causal relationship between the photographs and plaintiff’s injuries.” The issue on appeal was “whether the superior court abused its discretion when it denied plaintiff’s motions in limine to prospectively exclude the admission of evidence at trial.” The court ruled the trial court did not abuse its discretion in admitting the photographs, and that no expert testimony was required to tell the jury what the photographs showed.—From CLM Member Leslie Harrach, Tyson & Mendes
Louisiana
Governor Vetoes Third-Party Litigation Funding Bill
While Louisiana lawmakers passed several bills to reinforce the state’s weakened property insurance market during the recently completed 2023 legislative session, one key piece of legislation did not make it past the governor’s desk. Gov. John Bel Edwards vetoed a bill that would have required parties to a lawsuit to disclose third-party litigation funding agreements within 60 days of a filing. Lawmakers do not plan to override the veto. Legal system abuse has been a persistent issue in Louisiana for some time. The state’s “onerous bad faith laws contribute significantly to inflated claims payments and awards,” according to a joint paper published by the American Property Casualty Insurance Association (APCIA), the Reinsurance Association of America (RAA), and the Association of Bermuda Insurers and Reinsurers (ABIR).—From Mark Friedlander, Insurance Information Institute
New Jersey
PFAS Settlement May Be Sign of Things To Come
New Jersey announced a proposed $393 million settlement with Solvay Specialty Polymers USA, LLC that would ensure the remediation of contamination near Solvay’s facility in West Deptford. This contamination included the release of per- and polyfluoroalkyl substances (PFAS). The proposed settlement commits Solvay to pay for and implement comprehensive remedial activities at, and in the vicinity of, its West Deptford facility, amont other provisions. In March 2019, New Jersey issued a statewide directive to Solvay and other companies responsible for PFAS contamination in New Jersey ordering them to address their contribution to the injury of numerous environmentally sensitive natural resources including regional potable groundwater resources. New Jersey commenced litigation when Solvay did not fully comply with the directive. Solvay is the first company named in the 2019 directive to settle with New Jersey. Solvay’s settlement could be the first of several pursuant to New Jersey’s 2019 directive.—From CLM Member Todd Thacker, Goldberg Segalla
New York
The Grieving Families Act Returns
The New York State Senate passed an updated version of the Grieving Families Act, which proposes sweeping changes to New York’s wrongful death statute. Gov. Kathy Hochul vetoed a previous version on Jan. 30, 2023. The new version extends the statute of limitations for a cause of action from two years to three years from the date of the decedent’s death, allows recovery for “grief or anguish caused by the decedent’s death” in addition to the existing damages, allows a jury to determine who comprises the decedent’s “close family member” entitled to damages “based on the specific circumstances relating to the person’s relationship with the decedent,” and defines “surviving close family members” as decedent’s spouse or domestic partner, issue, foster children, stepchildren, and stepgrandchildren, parents, grandparents, stepparents, stepgrandparents, siblings, or any person standing in loco parentis to the decedent for the purpose of distributing damages.—From CLM Member Robert J. Cristiano, Wilson Elser