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Last month, we discussed the fact that under the terms of a standard Commercial General Liability ('CGL') policy, an insurance company must defend and indemnify its insured for claims of property damage resulting from an 'occurrence' subject to certain enumerated policy exclusions. We went on to enumerate differences in various states' jurisdictions, from California to Florida to Illinois. This Part continues the examination of various states' case law.
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Commercial entities placing first-party insurance often seek to insure physical loss or damage to their property and the loss of earnings directly arising from that loss or damage. Insurance against such loss of earnings is typically addressed through a 'Business Interruption' provision that is intended, as some courts have said, ''to do for the business what the business would have done for itself had no loss occurred'' to the insured's property. <i>Protection Mutual Ins. Co. v. Mitsubishi Silicon Am. Corp.</i>, 992 P.2d 479, 481 (Or. Ct. App. 1999) (quoting <i>A&S Corp. v. Centennial Ins. Corp.</i>, 242 F. Supp. 584, 589 (N.D. Ill. 1965). While insurance policy wording can vary, <i>see Protection Mutual</i>, 992 P.2d at 481, broker manuscript and insurer forms require that an insured peril cause physical loss or damage to insured property, creating a 'necessary interruption' or 'necessary suspension' of the business. Some claimants and commentators argue that this insurance applies to any downturn or slowdown in business following loss or damage, but it is well-settled in case law that there must be a complete cessation or suspension in order to qualify for business interruption coverage.
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<i>'Fraud!' cried the maddened thousands, and echo answered fraud;But one scornful look from Casey and the audience was awed.' Ernest Lawrence Thayer,</i> Casey at the Bat.As most readers will know, after this couplet in which the baseball player Casey scorns to dispute the umpire's call on the second strike, Casey proceeds to swing and miss the third pitch, striking out. Thayer's poem does not contain any indication that the slugger then sought to go back and contest the ruling on the second strike.Unlike the notorious batsman, however, insurance companies frequently bring actions to void coverage on the grounds of alleged misrepresentation or 'fraud' in the application for insurance, when they themselves have scorned to contest coverage upon first learning that they may have a basis to do so. Whatever the rules were concerning untimely protests in 1880s semipro baseball, today's insurance coverage law is clear: An insurance company waives any right to void coverage for alleged misrepresentations or omissions in the application, if, after it learns it may have grounds for such relief, it does not promptly seek the relief, but instead takes any action inconsistent with an intent to treat the policy as void.
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While most physicians today have yet to make the leap into using electronic health records (EHR), more and more physicians are implementing EHR technology in their practices. As a result, physicians and their counsel are now confronting the various hurdles relating to e-discovery in their defense of medical malpractice claims.
Hospitals trying to assemble a peer review committee to review another practitioner's record and perhaps impose sanctions for substandard performance have their jobs cut out for them because physicians are often reluctant to pass judgment on a colleague. In addition to this natural reticence, those who sit on or testify at a peer review proceeding have another reason to want to avoid it: the threat of lawsuits brought by the medical practitioner facing discipline. The scope of the problem is obvious: without willing and honest participants, the peer-review system that helps keep patients safe is compromised.
If a doctor's mistakes can be broadcast over the Internet for all the world to see, will he or she be more or less likely to settle a claim? What about plaintiffs? What are the implications for them should their suits against doctors and hospitals some day become public knowledge?
Highlights of the latest product liability cases from around the country.
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The classic vicarious liability claim goes something like this: The patient is referred to the local hospital, receives treatment from a physician who is not an employee of the hospital, and now that an adverse outcome has arisen from the treatment, the patient brings a claim against both the physician and the hospital. The foundation of the vicarious liability claim is that the hospital has held out the physician as having 'apparent authority' to act as an agent of the hospital, thereby inducing a reasonable reliance by the patient on that agency. With this year's publication of the new Restatement of the Law (Third) of Agency (2006), there may be subtle changes in store in some courts' inquiry into this aspect of liability assignment; therefore, review of the case law as it now stands and analysis of the change in the Restatement are in order.