LJN Newsletters

Brokers long have had certain duties toward policyholders, including the duty to use reasonable skill and care in procuring insurance. Procuring appropriate coverage can be a daunting task for applicants unfamiliar with the intricacies of insurance. The myriad types of policies available and the differing coverages they contain present numerous pitfalls for the unwary. Many companies, even those with risk managers, rely upon brokers to select policy types and carriers, and to notify carriers of losses. Given policyholders' reliance on brokers, there is a standard of care brokers must meet.

Highlights of the latest product liability cases from around the country.

If you require information about toxic chemicals, visit the National Toxicology Program (NTP) at http://ntp-server.niehs.nih.gov. The NTP was established in 1978 by the Department of Health and Human Services (DHHS) to coordinate toxicological testing programs within the department; strengthen the science base in toxicology; develop and validate improved testing methods; and provide information about potentially toxic chemicals to health regulatory and research agencies, the scientific and medical communities, and the public.

For the fifth time in 12 years, the Supreme Court agreed to hear a case involving the imposition of punitive damages and, once again, the Court articulated criteria and principles against which lower courts and litigants can measure the type of conduct that should support an award of punitive damages. State Farm Mut. Auto Ins. v. Campbell, 123 S.Ct. 1513 (April 7, 2003).

When suing a foreign manufacturer, the plaintiff's attorney must take into account jurisdictional rules set by the Supreme Court as well as the long arm statute of his/her forum state.

The Supreme Court's March 10th ruling in Norfolk & Western Railway Co. v. Ayers, No. 01-963, marks the Court's third recent foray into the federal tort law that is the Federal Employers' Liability Act (FELA) and provides ammunition for plaintiffs in product liability cases who are seeking to recover damages for mental anguish. In Ayers, the Court, by a 5-4 majority, held that mental anguish damages resulting from fear of cancer may be recovered under FELA by a railroad worker suffering from asbestosis caused by asbestos workplace exposure.

Recently, the U.S. Supreme Court ruled that any award of punitive damages designed to punish out-of-state conduct would not be permitted because it violated the Due Process Clause of the 14th Amendment. State Farm Mutual Automobile Insurance Co. v. Campbell, __US__, 2003 WL 1791206 (decided April 7, 2003). This decision will effect broad changes in current product liability law with respect to punitive damages; however, the most important immediate change to practitioners will be in pleading.

Manufacturers may be surprised to learn that a growing number of courts are awarding damages to plaintiffs who have ignored or failed to follow product warning labels and instructions. Courts have often barred plaintiffs from recovering in such cases by applying a presumption that product warnings will be read and heeded. This has provided a safe harbor from liability for manufacturers and sellers.