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CLM National: December 2021

News and verdicts that affect you from across the country

December 15, 2021 Photo

The EPA moves to expand its role in methane regulation, a COVID-19-related executive order in Massachusetts that tolls the filing deadline for civil suits is not restricted to the pandemic’s timeframe, and, in Arizona, Juul and the state’s attorney general reach a settlement over Juul’s advertising practices.


Insurance Commissioner Afable Retiring

Insurance Commissioner Mark Afable is leaving his position this month and retiring from public service, Gov. Tony Evers announced late November. Evers appointed Afable to the position in December 2018. Deputy Insurance Commissioner Nathan Houdek will serve as interim commissioner following Afable’s departure. “Mark has been a part of our administration from the very beginning, and his dedication to expanding health insurance access, protecting a competitive insurance marketplace, and building insurance awareness has made a huge difference in our state,” says Evers in a statement. Afable notes, “The insurance industry is in a period of great change as regulators and insurers evaluate issues of race, big data, and climate change. I have greatly appreciated the governor’s support as we kept those issues at the forefront while facing the unprecedented challenges of the past year.” Deputy Commissioner Houdek was appointed to his current position by Afable in January 2019.—From Senior Managing Editor Phil Gusman


Insured Has Burden to Prove Exception to Exclusion

The Nevada Supreme Court joined 26 other state supreme courts, holding the insured has the burden to prove an exception to an exclusion. The question before the court was, if an insurance policy provides coverage, but that coverage is then modified by an exclusion, who has the burden to demonstrate an exception to the exclusion? Can an insured use extrinsic evidence to meet that burden? The underlying action arose from Nevada’s construction-defect litigation and concerned whether there was a duty to defend. Nevada adopted the majority rule that, since the insured bears the initial burden of establishing coverage, the insured also should bear the burden of proving an exception to an exclusion applies. The court also concluded that the insured may rely on extrinsic evidence because “the duty to defend must be determined at the outset of litigation based upon the complaint and any other facts available to the insurer” at the time the insured tendered the defense.—From CLM Member Michael Lowry, Wilson Elser


Juul Settles Suit with AG

Juul Labs will pay $14.5 million to settle a lawsuit brought by Arizona Attorney General Mark Brnovich. Brnovich alleged Juul marketed its products in a way that targeted young people while misleading them about the risks. As part of the settlement, Juul admitted no wrongdoing, but agreed to abide by certain restrictions in its advertising, including limiting social media advertising, not using any cartoons in advertisements, and not showing people under 30 in advertisements. The settlement notes that $12.5 million will go toward education and prevention programs. In a statement, Juul, which has faced lawsuits in other states, says, “This settlement is another step in our ongoing effort to reset our company and we applaud the attorney general’s plan to deploy resources to address underage use.” Brnovich says in a statement, “Today’s settlement holds Juul accountable for its irresponsible marketing efforts that pushed Arizona minors toward nicotine and the addiction that follows.”—From Senior Managing Editor Phil Gusman

Washington, D.C.

EPA Proposes Methane Regulations

The Environmental Protection Agency (EPA) put out new proposed regulations on Nov. 2, 2021, including a proposal that would reduce more than 40 million tons of methane from 2023 to 2035 by, among other things, prohibiting “venting,” or the practice of allowing excess methane gas to escape directly into the atmosphere from gas and oil fields. The regulations would also increase the number of mandatory inspections to identify and correct leaks and fissures from tanks to reduce “fugitive emissions.” The EPA says these proposals would be the equivalent of shutting down more than 200 coal plants for a year. The next step in the process is for the EPA to take public comment on the proposed rule for 60 days after it is published in the Federal Register, and to hold public hearings and training.—From CLM Member Daniel L. Klein, Goldberg Segalla


Broad Application for Statute-of-Limitations EO

The Massachusetts Supreme Judicial Court ruled that the COVID-19 emergency order that tolls the filing deadline for civil suits should apply to all civil cases and not be limited to those with a deadline within March 17, 2020 and June 30, 2020. Plaintiff Margarita Melendez was injured on Sept. 3, 2017 at Shaw’s Supermarket and filed suit against Shaw on Sept. 24, 2020, which was outside the normal statute of limitations time period under Massachusetts law. However, the statute of limitations was modified by order of the Supreme Judicial Court in June 2020 in response to the COVID-19 pandemic. The issue before the court was whether or not the plaintiff’s complaint was barred or if her case could proceed pursuant to the emergency order. The court found that the plain language of the order included “all civil cases.” This case clarifies the applicability and timing of several court orders that tolled statutes of limitations and court deadlines due to the pandemic.—From CLM Members Christopher J. Seusing and Cole Munson, Wood Smith Henning & Berman


Supreme Court Rejects Landlord Liability for Tenant Dog Attacks

In Higgins v. Bailey, plaintiff alleged that her neighbor invited her into his home and, shortly thereafter, the neighbor’s pit bull attacked plaintiff without provocation, causing serious injuries. Plaintiff’s neighbor rented his home from the defendant landlords, who were living in Arkansas, and plaintiff claimed that defendants were liable for the injuries caused by their tenant’s dog and sued for negligence. Defendants filed a motion for summary judgment and argued they were not liable for plaintiff’s injuries as they were not aware at the inception of the lease agreement, or at any time prior to the attack, that their tenant’s pet had a dangerous propensity to attack people. The trial court granted summary judgment to defendant landlords and the Vermont Supreme Court affirmed. The Supreme Court held that the mere fact that the dog is a member of a suspected dangerous breed is insufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous.—From CLM Member Crystal Alonso, Callahan & Fusco

About The Authors
Phil Gusman

Phil Gusman is senior managing editor for CLM Magazine and Construction Claims magazine.  phil.gusman@theclm.org

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