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CLM National: September 2021

News and verdicts that affect you from across the country

September 08, 2021 Photo

Illinois Gov. J.B. Pritzker announces vaccine requirements for educators and health care workers, Nevada establishes a new standard for income loss claims, and, in New Mexico, a court makes a ruling on an effort to prevent fracking near archeological and cultural sites.


New Standard for Income Loss Claims

How is a loss-of-income claim measured? In federal courts, it is measured by net post-tax earnings. But certain states have concluded that loss of income should be measured by gross pre-tax earnings. Which one applies to Nevada claims? In a case decided by the Nevada Supreme Court on Aug. 19, 2021, the question arose from the death of a hand surgeon who was bicycling when he died. At trial, the jury awarded $18.7 million, of which $2.7 million was for income loss. The defense argued that the income-loss damages were improper because the jury was presented evidence only as to the surgeon’s gross income. The Nevada Supreme Court examined the conflicting rulings in federal and state courts, and concluded “gross income is the most workable and realistic measure of what salary would be used to support” a claimant. Using net income was too speculative because it requires predicting future tax policy. This ruling broadening the damages allowed in state courts might again underscore the potential value of removing a case to federal courts that allow a narrower scope of damages.—From CLM Member Michael Lowry, Wilson Elser

New Mexico

Fracking Ban Defeated

The U.S. District Court for the District of New Mexico rejected an effort to prevent fracking near archeological and cultural sites in the Mancos Shale geological formation in New Mexico. In rejecting the injunction sought by the Sierra Club and other environmental groups, Chief U.S. District Judge William P. Johnson opined, “BLM’s decision to grant [permit applications] for drilling in the Mancos Shale is based on a consideration of relevant factors and good-faith efforts to undertake a significant and far-reaching assessment of the relevant environmental consequences.” The decision notes the petitioners failed to show that the government’s approval of the almost 400 permits in the Mancos Shale were violative of the National Environmental Policy Act (NEPA) or the Administrative Procedure Act. The judge further determined that the petitioners had failed to demonstrate BLM had not done appropriate analysis under NEPA, and that the health impacts of drilling outweighed the loss of revenue an injunction would entail.—From CLM Member Daniel L. Klein, Goldberg Segalla


Vaccination, Testing Requirements Announced

Citing rising COVID-19 infections and hospitalizations, Gov. J.B. Pritzker announced a vaccine or weekly testing requirement for all health care workers, including workers at public and private nursing homes; and for teachers and staff at pre-k-12 schools as well as personnel and students at higher education institutions. “Workers and students in applicable settings must receive the first dose of a two-dose vaccination series or a single-dose vaccination by Sept. 5, 2021,” according to a statement from Pritzker. “Workers who do not receive the vaccine, or those who opt out for medical reasons or based on a sincerely held religious belief, must follow a routine testing schedule to detect cases early and prevent further spread. Testing will be required a minimum of once per week in schools and health care facilities.” Those who do not provide proof of vaccination will be prevented from entering health care and educational facilities unless they follow the testing protocol. Furthermore, all Illinois residents over the age of two will be required to wear a mask in all indoor settings, effective Aug. 30, 2021.From Senior Managing Editor Phil Gusman


Case Timely Removed Within 30-Day Limit

In the Cuyahoga County Court of Common Pleas, plaintiffs alleged that Lee Kallsen was exposed to asbestos while aboard the U.S.S Hornet, which caused him to develop mesothelioma. A week prior to Kallsen’s deposition, plaintiffs tendered a preliminary product identification disclosure, which alleged Westinghouse as a manufacturer of turbines that were present during Kallsen’s dates of service. Westinghouse removed this matter to the U.S. District Court for the Northern District of Ohio, arguing that it was acting under an officer or agency of the U.S. when it manufactured the turbines. Plaintiffs filed a motion to remand, arguing Westinghouse’s removal was not timely filed within the 30-day limitation of being served. Plaintiffs contended Westinghouse knew or was able to ascertain it possessed the government contractor defense well before filing its notice of removal. The court disagreed, noting Westinghouse did not receive information identifying the U.S.S. Hornet as a job site until the exchange of discovery. The court found this negated the plaintiffs’ contention and denied the plaintiff’s motion.—From CLM Member Catherine L. Schwarze, Goldberg Segalla


NIST Team to Investigate Surfside Collapse

The U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) announced the expert team members who will conduct a technical investigation into the Champlain Towers South condominium collapse in Surfside, Florida. This will be the fifth investigation NIST has conducted using authorities granted by the 2002 National Construction Safety Team (NCST) Act. The technical investigation will be organized around specific projects aimed at understanding the full history of the building, including design plans, construction, materials, modifications, site, and environment. The projects will be: Building and Code History; Evidence Preservation; Materials Science; Geotechnical Engineering; and Structural Engineering. Judith Mitrani-Reiser, associate chief of the materials and structural systems division in NIST’s Engineering Laboratory, will lead the team. NIST says it will provide regular updates on its progress during the investigation, and it invites members of the public to submit any information, including videos, photos, or other documentation.—From Senior Managing Editor Phil Gusman

Rhode Island

Henri Loss Estimate: $155 Million

Insured losses from Hurricane Henri are expected to be around $155 million, according to an estimate by Karen Clark & Co. (KCC). The estimate includes privately insured damage to residential, commercial, and industrial properties and automobiles. The storm gained hurricane status briefly, but decreased in intensity before making landfall on Aug. 22, 2021, near Westerly, Rhode Island as a tropical storm with maximum sustained wind speeds of 60 mph. “Henri’s decrease in intensity before landfall allowed the northeastern U.S. to avoid much of the damage that was originally forecast for the region,” KCC notes. “The shift in track direction, which took Henri through Connecticut and into New York, led to reduced impacts in Massachusetts, as the strongest winds did not reach Boston or Cape Cod.” KCC adds that much of the wind damage that did occur was from downed trees and power lines. More than 100,000 customers lost power and there was heavy rain from northern New Jersey to southern New England.—From Senior Managing Editor Phil Gusman

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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