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CLM National: June 2022

News and verdicts that affect you from across the country

June 21, 2022 Photo

Ohio and 16 other states file a lawsuit targeting California’s Clean Air Act waiver, two bills advance in Florida to address the state’s property insurance issues, and an above-average Atlantic hurricane season is predicted for 2022. 


Comparative Negligence Barred in Certain Tenant Claims

The Court of Appeals recently limited the use of comparative negligence in claims by residential tenants against landlords. In Thomas v. Dillon Family Limited Partnership II, a tenant’s refrigerator began to leak and she notified the landlord, who checked on the problem that same day. The tenant thought the landlord fixed the problem; the landlord testified he told her repairs would be needed. The next night, the tenant slipped and fell on water still coming from the refrigerator and the tenant filed suit, alleging the landlord failed to maintain the premises in a habitable condition. The landlord attempted to plead comparative negligence, but the Court of Appeals concluded that, while the landlord could allege the tenant did not mitigate damages, the Oregon Landlord/Tenant Act did not permit him to allege comparative negligence. If tenants’ claims can be tied to a habitability statute rather than common law negligence, then landlords might not be able to rely on comparative negligence arguments.—From CLM Member Michael Lowry, Wilson Elser


Clean Air Act Waiver Targeted in New Lawsuit

Ohio and 16 other states sued the Environmental Protection Agency over its March 14 decision to reinstate a waiver allowing California to enact tougher vehicle emission standards than those set by the federal government. Since 1970, California’s waiver had been renewed more than 100 times, but the Trump administration revoked it in 2019 with the intent to allow car manufacturers to produce less expensive cars. Led by Republican Ohio Attorney General Dave Yost, the states filed their lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, arguing that the waiver violates the U.S. Constitution, which treats all states equally. “If California is able to set restrictive ‘gas emissions’ standards, manufacturing becomes astronomically expensive, and those additional costs are passed on to consumers, many of which are Missourians,” says Missouri Attorney General Eric Schmitt, who joined the lawsuit. The EPA has yet to comment on this pending litigation.—From CLM Member Stephen L. Jenkins, Goldberg Segalla


House Passes Bill on Cellphone Use While Driving

After multiple attempts and some revisions, a bill to pull over and fine motorists who use handheld cellphones while driving passed the state House. The bill, HB 376, would impose a fine of $50 to $100 for the first offense, and a fine of $100 for subsequent offenses. Present law prohibits the use of wireless telecommunications devices in school zones, but HB 376 would expand that to include general usage of such devices while driving. News reports note that earlier versions of the bill imposed steeper fines and included the possibility of arrest. Rep. Mike Huval, primary sponsor, agreed to revisions after initially failing to gain enough support to send the bill to the Senate. After House passage, by a vote of 56-39, the bill goes to the Senate, which must vote on the bill early this month.—From Senior Managing Editor Phil Gusman


Two Property Insurance Bills Advance

The Florida Senate, during a special session of the state legislature, advanced two bills aimed at reducing costs for property insurance companies and, eventually, driving down rates for homeowners. The Senate Appropriations Committee passed SB 2D and SB 4D. SB 2D contains several provisions aimed at reducing litigation costs and claim losses for insurers. SB 4D attempts to limit roof costs by exempting roofs built to the state’s 2007 building code standards from a law requiring an entire roof to be replaced if 25% of it is damaged. Florida’s seven million homeowners will not see any immediate relief from rising property insurance rates coming out of this week’s special session, and things in Florida will not turn around automatically. We will still see very high rate increases across the state for the near term. We are still going to see struggling insurers, with many facing financial distress.From Mark Friedlander, Insurance Information Institute


Above-Average Hurricane Season Projected

The National Oceanic and Atmospheric Administration (NOAA) predicts a 65% chance of an above-average Atlantic hurricane season this year. NOAA is forecasting 14-21 named storms, including six to 10 hurricanes and three to six major hurricanes. NOAA says the increased activity anticipated this hurricane season is attributed to several climate factors, including the ongoing La Niña that is likely to persist throughout the hurricane season, warmer-than-average sea surface temperatures in the Atlantic Ocean and Caribbean Sea, weaker tropical Atlantic trade winds, and an enhanced West African monsoon. Colorado State University’s (CSU) Tropical Meteorology Project team, meanwhile, predicts 19 named storms, nine hurricanes, and four major hurricanes for the 2022 season. An average hurricane season produces 14 named storms, including seven hurricanes and three major hurricanes. The Atlantic hurricane season runs from June 1 to Nov. 30.—From Senior Managing Editor Phil Gusman


New Requirements for Pedestrians, Motorists

Gov. Ned Lamont, signed into law Public Act 21-28. This new act puts the onus of crossing the roadway on the pedestrian. The pedestrian must signal his intent to cross the roadway in a manner that is clear and obvious to drivers already established on the roadway. Motorists, as a result, appear to be required to be on the lookout for pedestrians and their body language when approaching intersections with uncontrolled crosswalks. Violation of this law will result in a possible infraction issued to the pedestrian. Given that the language proposed by the legislature presents a potentially subjective interpretation, it will be an exercise in judicial discretion to see how courts interpret what may be the standard for a pedestrian to provide sufficient indication to motorists. If the courts see this as putting a higher burden on the pedestrian, we may be able to shift liability onto the pedestrian in future civil litigation or at least lead a jury to place a higher contribution for any associated injuries resulting from a motor vehicle accident with pedestrians.—From CLM Member Samuel Rodrigues, 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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