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CLM National: September 2022

News and verdicts that affect you from across the country

September 20, 2022 Photo

Claims for 2021’s Hurricane Ida pass $13 billion in Louisiana, while hurricane forecasts for 2022 are revised to reflect the slow start to the season. In Georgia, a legislative amendment codifies a long-held interpretation of the state’s apportionment law after a court ruling called it into question.

Washington

WPLA Requirement Satisfied by Warning to Physicians

The Washington Supreme Court recently held that the duty to warn requirements under the Washington Product Liability Act (WPLA) are satisfied when drug manufacturers provide adequate warnings about the risks and side effects of a given drug to the prescribing physician, even if they also directly advertise to the consumer. The case, Dearinger v. Eli Lilly, involved a suit against Eli Lilly, the manufacturer of Cialis. Specifically, plaintiff alleged that Lilly failed to adequately warn of the risk of paralytic stroke in its direct advertisements to consumers. Under the learned intermediary doctrine, a manufacturer satisfies its duty to warn of the risks and side effects of a drug when it provides adequate warnings to physicians. The plaintiff argued that there is an exception to the learned intermediary doctrine when the manufacturer directly advertises to consumers. The court found there is no such exception in Washington, reasoning that the WPLA does not specify who should be warned by the manufacturer—it only creates a duty to warn.—From CLM Member Shivani Bommakanty, Tyson & Mendes

California

Wildfire Victims Sue Utility Company

Residents in the McKinney Fire burn area sued utility company PacifiCorp in mid-August 2022, alleging that sparks from its high-voltage transmission lines and other equipment ignited the deadly blaze in northern California. The McKinney Fire has burned more than 60,000 acres since it began on July 29. Four people died as the fire swept through the area, and hundreds of homes were damaged or destroyed, according to authorities. Residents whose homes and property were destroyed or damaged claim the utility “negligently, recklessly, and willfully failed” to inspect and maintain its equipment in dry vegetation, according to their complaint filed Aug. 15 in Sacramento Superior Court. They claim the utility company “prioritized profits over safety,” and was aware of extreme fire risk in the surrounding areas where the fire started.—From Mark Friedlander, Insurance Information Institute

Louisiana

Hurricane Ida Claims Reach $13.1 Billion

Insurance Commissioner Jim Donelon announced Hurricane Ida claims data through June 30 showing insurers have paid, or reserved to pay, $13.1 billion on all types of Ida claims in Louisiana. A total of 460,709 claims have been filed, of which 299,440, or 65%, were closed with payment. Residential property represented the highest number of claims (359,548), followed by personal auto (52,093), and commercial property (29,876). Hurricane Ida struck the state as a Category 4 hurricane on Aug. 29, 2021. The storm impacted 25 parishes.—From Senior Managing Editor Phil Gusman

Georgia

Legislature Amends Apportionment Law

The latest amendment to Georgia’s apportionment law is a favorable development for defendants in negligence cases. The law amends Georgia’s apportionment statute O.C.G.A. § 51-12-33(b) to provide for apportionment of damages in cases with a single defendant. It was signed into law by Gov. Kemp on May 13, 2022 and became effective immediately, applying to all causes of action accruing on or after the effective date. Historically, and since the statute’s enactment in 2005, defendants have requested that the jury apportion damages to all parties and non-parties regardless of the number of defendants named in a negligence action. Despite years of the statute’s application to cases involving single defendants, the Georgia Supreme Court ruled that a legal fiction in Alston & Bird, LLP v. Hatcher Mgmt. Holdings. The amendment to O.C.G.A. § 51-12-33 has codified the historical application of apportionment in single defendant cases.—From CLM Members Jenna Melton Fowler and Colleen V. McCaffrey, Wood Smith Henning & Berman

Maryland

Hurricane Forecasts Lowered

In its mid-season update, NOAA says it still expects an above-average Atlantic hurricane season, but has lowered the likelihood of that outcome. At the same time, NOAA warned that the peak months of the season are just beginning. The likelihood of an above-average season is now 60%, says NOAA, down from 65% in May. The likelihood of a normal season is now 30%, up from 25% in May. NOAA is calling for 14-20 named storms, of which six to 10 could become hurricanes. An average season produces 14 named storms with seven becoming hurricanes. So far, the 2022 season has produced three named storms and no hurricanes. Meanwhile, Colorado State University researchers updated their forecast, which now calls for 18 named storms instead of 20, eight hurricanes instead of 10, and four major hurricanes as opposed to five.—From Senior Managing Editor Phil Gusman

Washington, D.c.

EPA Must Show Specific Authorization

The U.S. Supreme Court recently issued its opinion in West Virginia v. Environmental Protection Agency. Under Section 111(d) of the Clean Air Act, the EPA determines energy-generation emissions limits with which states must comply. Prior to 2015, the EPA had set such limits based on the cleaner use of existing energy sources. But in the EPA’s 2015 Clean Power Plan, it determined the best system of emissions reduction for coal and natural-gas plants involved “generation shifting”—i.e., a shift from higher-emitting to lower-emitting energy producers. The court held the “major questions” doctrine precluded the EPA from using the Clean Air Act to require energy producers to change the type of energy generation they use. This doctrine requires an agency to identify “clear congressional authorization” for its actions. The court found the Clean Air Act did not contain such authorization, and that the EPA was relying on “the vague language of a long-extant, but rarely used, statute designed as a gap filler” to create a regulatory program Congress itself had declined to enact.— From CLM Member Todd Thacker, Goldberg Segalla

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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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