CLM National: February 2019

New jury instructions in Illinois highlight implicit biases, Florida’s Office of Insurance Regulation releases updated Hurricane Michael claims information, and, in New York, the legislature passes a bill extending the statute of limitations for child sexual abuse victims to file suit against their abusers and the institutions that enabled or protected them.

Illinois

Implicit Bias Jury Instruction Added

Illinois adopted an “implicit bias” jury instruction that aims to make jurors aware of the implicit biases that, according to studies, many individuals unwittingly bring into the courtroom where justice is supposed to be blind. The road to the new instruction began with the Harvard Implicit Association Test (IAT), an online test to assess whether, and to what degree, individuals possess implicit subconscious biases in favor of one race, gender, or socioeconomic status over others. The IAT has now made its way into Illinois courtrooms with Illinois Jury Instruction 1.08 “Implicit Bias,” which defines implicit bias and states that jurors must not be biased in favor of or against any party or witness because of gender, race, religion, and other factors. Although Illinois case law does not require an implicit bias instruction, the comments suggest the instruction should be given and jurors may see a short video about implicit bias when they are waiting in the jury assembly room.—From CLM Member Jim Foster

California

Loss of Consortium Claims Analyzed

In Jones v. IDS Property Casualty Insurance Co., the Court of Appeal considered whether a loss of consortium claim is restricted to the “per-person” bodily injury policy limit. Following a car accident, the plaintiff’s husband settled for the per-person limit of $250,000. The trial court held the spouse’s loss of consortium claim is included in the per-person limit, not the aggregate limit. On appeal, the spouse argued that the policy language limiting damages for “bodily injury liability…to one person per occurrence” merely limits the amount paid to a single person, not multiple claimants. The spouse also argued a loss of consortium claim is a separate bodily injury claim pursuant to California’s Financial Responsibility Law (Cal. Veh. Code § 16056). However, the court rejected both arguments and held that a loss of consortium claim arises from “bodily injury” to a single person and, therefore, is restricted to the per-person limit.—From CLM Member Benjamin A. Davis

New York

Statute of Limitations Extended for Abuse Victims

The statute of limitations would be extended for child sexual abuse victims to initiate claims against their abusers, and institutions that enabled or protected the abusers, under a bill passed by the state legislature. The bill is expected to be signed by Gov. Andrew Cuomo. The Child Victims Act, S.2440, raises the criminal statute of limitations for child sexual abuse crimes by five years, to age 28, and raises the civil statute of limitations for causes of action to age 55. In addition, the bill creates a one-time, one-year window—beginning six months from the bill’s effective date—for past victims of child sexual abuse to begin lawsuits against their abusers and institutions, regardless of when the abuse occurred. The bill also eliminates notice-of-claim requirements for victims to sue public institutions.—From Managing Editor Phil Gusman

Florida

Hurricane Michael Losses Hit $5.4 Billion

The insured loss estimate in Florida for Hurricane Michael stands at $5.4 billion, according to updated Office of Insurance Regulation (OIR) figures. The total includes 143,055 claims, of which 74.2 percent are closed. Residential property claims make up the bulk of the total, with over 95,000 filed. Bay County, which is located along the Florida Panhandle coast, has seen the highest volume of claims at 86,174. The Orlando Sentinel reports Gov. Ron DeSantis has ordered the state Division of Emergency Management to speed up payments to communities dealing with cleaning up “massive” amounts of debris. Last month, the OIR sent a memorandum to property and casualty insurers calling on them to pick up the pace with respect to paying Hurricane Michael claims.—From Managing Editor Phil Gusman

Massachusetts

Baker Signs Airbag Bill

Gov. Charlie Baker signed legislation making it a crime to sell or install a counterfeit airbag in a vehicle, a bill supported by the American Property Casualty Insurance Association (APCI). APCI says Massachusetts becomes the 17th state to enact such legislation. The bill, H.4051, follows model legislation adopted by the National Conference of Insurance Legislators (NCOIL). It establishes criminal penalties for the fraudulent installation or reinstallation of an airbag, with increased penalties and possible jail time if the airbag fraud results in injury or death. The bill passed the House last April and the Senate on Dec. 31 before Baker signed it on Jan. 10, 2019.—From Managing Editor Phil Gusman

Vermont

Publisher Sues Netflix Over Trademark

Chooseco, the company behind the popular “Choose Your Own Adventure” children’s books, filed suit against Netflix over the streaming service’s recent interactive film, “Bandersnatch.” The film is part of Netflix’s “Black Mirror” series and allows viewers to make choices while watching that influence the direction the film takes. According to Chooseco, “The film‘s protagonist, a video game designer, asserts in the opening sequence that his own work is based on ‘Bandersnatch…a ‘“Choose Your Own Adventure” book.’” The company asserts trademark infringement in its lawsuit and further claims the film damages the company’s “Choose Your Own Adventure” brand because it contains graphic images of “extreme physical violence, murder, drug use, and a choice about the death of a child.” The suit, filed Jan. 11, 2019, in U.S. District Court for the District of Vermont, seeks at least $25 million in damages plus attorneys’ fees and costs.—From Managing Editor Phil Gusman