Barger & Wolen partner David McMahon was quoted in a Law360 article, Deepwater Horizon Ruling Places $18b Bull’s-Eye on BP subscription required), on September 4, 2014, about U.S. District Judge Carl J. Barbier’s ruling which found BP’s…
Newman writes that the primary purpose of the Troy and Alana Pack Patient Safety Act is to alter MICRA, the Medical Injury Compensation Reform Act of 1975. Currently, MICRA caps noneconomic damages in medical malpractice cases at $250,000.
The initiative slated for the November 2014 ballot, among other things, would seek to increase that limit to $1.1 million, which going forward will be adjusted to inflation.
Yet the official summary of the initiative, written by the office of Attorney General Kamala Harris, buries the MICRA reform provision.
The first three sentences of the summary describe provisions that would require drug testing for doctors. The fourth sentence refers to a provision that would require health care practitioners to consult a state prescription drug history database before prescribing certain controlled substances. A reader would need to get all the way to the fifth and final sentence to see that the initiative increases the cap on pain and suffering damages in medical negligence lawsuits.
This bit of deceptive presentation appears to be a deliberate attempt to sneak the measure past voters. As reported in an op-ed in the Los Angeles Times, The battle between doctors and trial lawyers grows more infantile, one of the law’s primary advocates described the drug testing provision as “the ultimate sweetener,” admitting that when the proposal was put before focus groups, “the only thing that made them light up was drug testing of doctors.”
Newman also objects to the initiative the ballot measure’s potential illegality. The state constitution provides that an “initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”
As the state Supreme Court has explained, one of the purposes of single-subject requirement was “to minimize the risk of voter confusion and deception.” The initiative certainly violates the spirit, and perhaps the letter, of this law.
The fundamental changes contained in the initiative deserve an honest and open debate, with Californians clearly understanding what they are voting for or against. The proponents, as evidenced their packaging, appear to lack confidence that they would win such a debate on its merits. If they would invoke the initiative process, proponents should show respect, not contempt, for voters’ intelligence.
Travis Wall’s article Cyberattacks Push Companies to Specialty Insurance Policies says the window is closing for obtaining coverage for cyber attacks under traditional policies.
The article, published in The Recorder on May 23 says as insures refine coverage defenses and expand exclusions for cyber events, business will have to turn to specialty cyber policies for protection against data theft or loss.
Commercial general liability (CGL) policies have two basic coverage types. Coverage A addresses “property damage” and “bodily injury.” Coverage B applies to “personal injury” offenses, such as publications that invade rights of privacy. Because data breaches typically do not involve property damage or bodily injury, policyholders rely primarily on the personal injury prong.
Among other requirements, personal injury coverage applies only to claims arising from a “publication” of information. Data theft through hacking does not appear to involve a “publication” as that term is commonly understood.
Courts will not presume a publication simply because a data loss occurred. In a recent case, tapes containing confidential employee information fell out of a delivery truck. An unknown person then retrieved them but there was no evidence that employee information was publicly disclosed or improperly used.
A Connecticut appellate court rejected the argument that the data loss, in and of itself, constituted a “publication.” The mere potential for disclosure was not enough—there had to be evidence that confidential information on the tapes was actually published. See Recall Total Information Management Inc. v. Federal Ins. Co., 147 Conn. App. 450 (2014).
Read the full article at The Recorder.
Read more on this topic, please visit The Recorder (subscription required).
Travis Wall was extensively quoted in an article recently published in Dell’s Tech Page One about the growing use of cyberinsurance among companies. According to an August 2013 Ponemon Institute report, 76 percent of companies believed cyber…
David McMahon was quoted in a Jan. 23, 2014, Law360 article, Insurers Will Take Lead On Oil Rail Transport Safety Push, about how a series of fiery derailments of trains carrying crude oil have not only led lawmakers to consider new rules, but also cou…
Royal Oakes was quoted in a Jan. 5th, 2014, Business Insurance article, Lawsuits Over Health Exchange Premium Subsidies Challenge Heart of Reform Law, by discussing a pair of lawsuits aimed at limiting availability of premium subsidies for health care …
The chapter features many new practice tips on such diverse matters such as:
- Filing for litigation despite the equitable tolling rule;
- Tolling agreements;
- The notice-prejudice rule;
- Quiet title actions;
- The trigger of tripartite relationships;
- The attorney-client privilege;
- Attorney claims adjusters;
- Informal representations about the status of title;
- Bad faith actions;
- Undisclosed liens or encumbrances;
- Failure to file an amended title report;
- Posting collateral for an indemnification agreement;
- Access to property rights and the title report;
- Equitable subrogation; and
- “Hand-crafted” endorsements.
Barger & Wolen partner Gary Bresee recently updated Chapter 36 of the California Insurance Law & Practice, Homeowners and Related Policies.
The chapter revisions include:
Trigger of coverage rules;
Triggering first-party coverage…
Larry Golub was recently quoted in an article by Law360, Insurance Cases to Watch in 2014 (subscription required), detailing what is expects will be the biggest insurance cases decided in 2014.
Golub’s comments pertained to Fluor Corp. v. Superior Cour…
David McMahon and Peter Felsenfeld’s article, Companies Increasingly Look To Captive Insurance, takes a look at the captive insurance market and how more and more companies have been choosing it as an alternative to traditional risk management.