Florida’s third-party litigation funding transparency legislation hits a roadblock; Gov. Hochul’s veto in New York preserves noncompete agreements, for now; and, in Ohio, the state Supreme Court finds that the statute of repose applies to wrongful death claims based on medical care.
FALSE ONLINE POSTS ACTIONABLE AS LIBEL
In Paglia & Associates Construction, Inc. v. Hamilton, the Second District of California found that a client’s bashing of her contractor online was not privileged despite the fact that the two were embroiled in a review by the Contractors State License Board. The litigation privilege did not apply where the writings were not sufficiently connected to the litigation. Defendant Hamilton argued that because her claims against Paglia were reported to the Contractors State License Board, her statements were protected by the litigation privilege. The court, however, characterized her writings as press releases, which fall under the exception of “litigating in the press.” Thus, her online postings did not have a sufficient connection to the litigation and were not useful to the outcome. This case supports the premise that a customer who has filed a formal complaint, either with an agency or the court, may not always hide behind the litigation privilege if they state false facts and accusations online against a business.—From CLM Members Summit S. Dhillon and Mindy Bae Kulikov, Wood Smith Henning & Berman
MISHANDLED NOTICE OF APPEAL PROVES COSTLY
The state Supreme Court in Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corporation found that the clerk’s rejection of a notice of appeal rendered the appeal untimely. In that case, plaintiff electronically submitted its notice of appeal on April 1, 2021, the date the notice was due. The clerk rejected the document on April 6, and counsel re-submitted the notice of appeal the same day, which was accepted. Thus, the notice of appeal was file-stamped five days too late. Plaintiff had two options: it could have filed a motion before the circuit court in accordance with Rule 9(d)(2); or, within 30 days of the expiration of the time for filing the notice of appeal, plaintiff could have filed a motion with the appellate court under Rule 303(d). The plaintiff did neither. The Supreme Court held that the plaintiff’s failure to utilize either of the remedies was fatal to plaintiff’s claim that the appellate court had jurisdiction. Consequently, since the late filing was not excused, plaintiff was left with a notice of appeal filed five days after the due date and thus the appellate court did not have jurisdiction. —From CLM Member Michael D. Sanders, Freeman Mathis & Gary
STATUTE OF REPOSE APPLIES TO WRONGFUL DEATH CLAIMS
The Ohio Supreme Court recently resolved a split among the Ohio appellate district decisions regarding the statute of repose and wrongful death claims. (See Everhart v. Coshocton Cnty. Meml. Hosp.). Todd Everhart was involved in a car accident in December 2003 and was transported to Coshocton County Memorial Hospital. X-rays showed increased opacity in Everhart’s right lung, thought to be a lung contusion. Almost three years later, Everhart was diagnosed with advanced-stage lung cancer. He died two weeks later. Five years after the underlying care, Everhart’s wife filed a cause of action asserting medical malpractice and wrongful death claims. The defendants filed a motion for judgment on the pleadings, claiming that the plaintiff’s claims were barred by the four-year statute of repose. The trial court granted the defendants’ motion, but the Tenth District Court of Appeals reversed, holding that the statute of repose does not apply to wrongful death claims. The Ohio Supreme Court reversed the Tenth District, stating, “Wrongful death claims based on medical care are clearly and expressly included in R.C. 23015.113(E)(3)’s definition of ‘medical claim.’” —From CLM Members Jessica L. Gillis and Kevin M. Norchi, Freeman Mathis & Gary
A bill aimed at increasing regulation of third-party litigation funding (TPLF) in Florida has hit a roadblock in the state’s House of Representatives, with little chance of moving forward before the 2024 Florida legislative session ends on March 8, Insurance Business reported. The bill’s stagnation highlights the ongoing debate around TPLF, a practice that’s escalating across the U.S. and is projected to reach a global market size of $30 billion by 2028, according to Swiss Re estimates. Insurers argue TPLF leads to a surge in lawsuits and clogs court systems, while proponents believe it enables plaintiffs to challenge well-resourced corporations. The outcome in Florida could influence similar legislative efforts to regulate TPLF across the country this year. —From Mark Friedlander, Triple-I
Gov. Phil Murphy signed into law two bills that will expand the state’s workers’ compensation laws for certain first responders. Senate Bill 4267 was amended to “add members of a volunteer first aid or rescue squad to the list of individuals that are covered by the presumptions of compensability when injury or death occurs while remediating from an emergency.” Furthermore, the bill “expands the individuals that are covered by the presumption to include any career emergency medical technicians and paramedics employed by the state, a county, a municipality, or a private sector counterpart who is engaged in public emergency medical and rescue services.” Assembly Bill 5909 revised “workers’ compensation coverage for certain injuries to certain volunteer and professional public safety and law enforcement personnel.” It also expands the first responders eligible for workers’ compensation benefits and ensures they are compensated in the event of injury or death while fulfilling their duties. —From Associate Editor Angela Sabarese
HOCHUL PRESERVES NONCOMPETES
Gov. Kathy Hochul vetoed a bill that would have completely banned noncompete agreements and clauses between employers and their employees, and in other business contracts. As a result, noncompete agreements will remain enforceable in New York for the time being, giving employers in New York that use them a temporary reprieve. Discussions centered around a compromise to have so-called “high earners” excluded from the legislation. Hochul suggested $250,000 as a cut-off; lawmakers suggested $300,000, and a proposal supported by the bill’s sponsors suggested using an area’s median income as the standard. Hochul also proposed “grandfathering” existingnoncompetes. After vetoing the bill, Hochul stated that she “attempted to work with the legislature in good faith on a reasonable compromise.” She said she wants to take care of lower- and middle-income workers while also making sure businesses stay in New York. Hochul noted she continues “to recognize the urgent need to restrict noncompete agreements for middle-class and low-wage workers” and is open to future legislation that achieves the right balance. —From CLM Members Kadeem Wolliaston and Peter A. Lauricella, Wilson Elser