The Vermont Supreme Court recently issued an opinion reversing the dismissal of insurance claims seeking coverage for damage the insured argued was caused by COVID-19. See Huntington Ingalls Indus., Inc. et al. v. Ace American Ins. Co. et al., No. 2021-173, 2022 VT 45. The September 2022 ruling goes against the majority of cases in other state and federal courts findings that insureds have failed to adequately allege that COVID-19 can cause direct physical damage or loss that is covered by property insurance policies.
Huntington Ingalls Industries, the insured in this case, is the largest military shipbuilder in the United States employing more than 42,000 employees. Huntington purchased an “all risk” property insurance policy in March 2020 from its insurance subsidiary, Huntington Ingalls Industries Risk Management, LLC, which in turn purchased policies from multiple reinsurers to cover its obligations. The subject policy covered all real and personal property “against all risks of direct physical loss or damage to property” and contained a business interruption clause covering “loss due to the necessary interruption of business conducted, whether total or partial caused by physical loss or damage insured herein.” Of note, the policy, however, did not include the standard-form virus exclusion that has been available in the insurance industry since 2006.
Not long after the insured purchased the policy, the very first COVID-19 case arose among Huntington’s employees. By September 2020, more than 1,000 employees were infected, and by April 2021, more than 6,000 employees were infected. As a result, Huntington sought coverage from the reinsurers under the reinsurance policies for property damages, business interruption, and other losses suffered as a result of COVID-19, but coverage was denied.
Following the coverage denial, Huntington filed suit in the Vermont Superior Court seeking declaratory judgment that they were entitled to coverage under its purchased policy. The Superior Court concluded that Huntington failed to allege facts to support a viable claim for coverage and entered judgment on the pleadings in favor of the reinsurers.
Plaintiff, Huntington, then appealed the dismissal to the Vermont Supreme Court. The Supreme Court recognized that the key issues to decide were the interpretation of the phrase “direct physical loss or damage to property” and whether plaintiffs’ facts were sufficient to state a claim for physical loss or damage. The Court found that plaintiffs sufficiently alleged a claim that, if ultimately proven before a trier of fact, would demonstrate coverage under the policy.
The Vermont Supreme Court’s decision in this matter is not the first in the U.S. to conclude that COVID-19 business interruption lawsuits should not be dismissed without the development of further evidence, but it is the first decision by a state’s highest court. This decision is a reminder that the liberal pleading standard remains alive and well in Vermont. The decision also paves the way for similar COVID-related claims, especially in Vermont, to advance into discovery, expert witness, and summary judgment stages, which leads to the ramping up of litigation costs. However, it still remains unknown whether the insureds will be able to prove that COVID-19 actually caused “direct physical loss or damage to property,” ultimately triggering coverage.
New Jersey Athlete's Injury Caused by Coach's Decision is Governed by Simple Negligence Standard
In Dennehy v. E. Windsor Reg'l Bd. of Educ., 2022 N.J. LEXIS 978 (Oct. 26, 2022), the New Jersey Supreme Court held that a high school coach’s acts and omissions in deciding to have the team practice in an area adjacent to an ongoing soccer practice, leading to a student being injured, is governed by a simple negligence standard, rather than the heightened standard of recklessness applied in Crawn v. Campo.
On September 9, 2015, then 17-year-old Morgan Dennehy was injured during field hockey practice at Hightstown High School. On said day, field hockey practice was scheduled for 3:45p.m. on a turf field, however, the boys’ soccer team was practicing there until 3:45p.m. At around 3 p.m., field hockey coach, Dezarae Fillmyer, instructed the field hockey players to warm up in an area between athletic fields. During the warm-up, Dennehy was struck at the base of her skull with a soccer ball. Dennehy filed suit against the East Windsor Regional Board of Education, Hightstown High School, and three individuals, including coach Fillmyer. The allegations were that Dennehy sustained injuries as a result of the defendants’ "failure to supervise; prevent potential and foreseeable dangerous conditions; provide appropriate safeguards; and post suitable warnings of potentially dangerous conditions.”
The defendants moved for summary judgment, which was granted by the trial court holding that the plaintiff had to show that the defendants’ acts or omissions rose to the degree of recklessness described in Crawn v. Campo, 136 N.J. 494, 507-08 (1994) and Schick v. Ferolito, 167 N.J. 7, 18-20 (2001). The Appellate Division reversed, holding that a simple negligence standard applied. The New Jersey Supreme Court found that the coach’s acts and omissions alleged in this case are governed by the simple negligence standard.
Both Crawn and Schick involved instances where the parties were actively participating in a recreational activity (in Crawn, the incident occurred during a softball game, and in Schick during golf.) In Crawn, the Court ruled “that the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” 136 N.J. at 497-98. Later in Schick, the Court held that “the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a ‘contact’ or ‘noncontact’ sport.” 167 N.J. at 18-19.
The Court found that, unlike Crawn and Schick, in this case, Fillmyer was not a participant in the recreational activity, and even if she was, the plaintiff was not injured by any activity associated with field hockey. In fact, the plaintiff was struck by a soccer ball that came from another field. In this case, the essence of plaintiff’s claim against Fillmyer is based on her choice of location and timing for the informal practice prior to the scheduled one. As the Court noted, “[i]n these and other similar settings, parents have the right to expect that teachers and coaches will exercise reasonable care when in charge of their children and that courts will not immunize a teacher’s negligence by imposing a higher standard of care.”
Florida's Second DCA Addresses Validity and Enforceability of AOB Held by Assessment Services Comapny
Florida’s Second District Court of Appeal recently issued a notable opinion concerning the validity and enforceability of assignments of benefits in the real property insurance context. Kidwell Grp., LLC v. Am. Integrity Ins. Co., 2022 Fla. App. LEXIS 6316 (Fla. 2d DCA, Sept. 16, 2022). The Kidwell Group, LLC., d/b/a Air Quality Assessors of Florida, (“Air Quality”) appealed a final order dismissing with prejudice its complaint premised on the insurer, American Integrity Insurance Company of Florida’s (“AIIC”), breach of the homeowner insurance policy AIIC issued to Robert and Maureen Mucciaccio.
In 2017, the Mucciaccios’ property sustained hurricane damage following Hurricane Irma. In 2019, the Mucciaccios assigned their benefits under their insurance policy to Air Quality. Air Quality submitted its invoices to AIIC. AIIC refused to pay, and Air Quality sued to recover. Air Quality alleged in its complaint that the homeowners "suffered a loss due to water and/or mold, covered perils under the [AIIC] Policy," and Air Quality agreed to provide "reasonable and necessary assessment services to the [homeowners] relating to the loss" in exchange for the assignment of post loss insurance benefits. Air Quality attached the assignment of benefits (“AOB”) to the complaint.
AIIC moved to dismiss Air Quality's complaint, arguing that Air Quality lacked standing to sue because the language in the complaint and the AOB led to the "undisputed conclusion" that the AOB was an "assignment agreement" subject to section 627.7152, Florida Statutes. AIIC argued that: (i) the AOB did not include the required provisions under section 627.7152(2)(a); and (ii) Air Quality failed to comply with the presuit notice requirement of section 627.7152(9)(a). The trial court concluded that the AOB that Air Quality obtained from the Mucciaccios was invalid and unenforceable under the statute.
On appeal, the Second District considered two issues: (1) whether a dispute of fact precluded the trial court from determining that section 627.7152 governed the type of services Air Quality provided under the AOB, which would have made dismissal of Air Quality’s complaint improper; and (2) whether section 627.7152 retroactively applied to this case.
The Second District noted that the legislature enacted section 627.7152 in May 2019 “to regulate assignment agreements that seek to transfer insurance benefits from the policyholder to a third party.” (citing Total Care Restoration, LLC v. Citizens Prop. Ins. Corp., 337 So. 3d 74, 75-76 (Fla. 4th DCA 2022); and Ch. 2019-57, §§ 1-6, Laws of Fla. (“An assignment agreement that does not comply with subsection (2) is invalid and unenforceable.” § 627.7152(2)(d))).
The Court examined the language of the statute, particularly, the definition of an “assignment agreement,” as set forth in section § 627.7152(1)(b), which states that it is
[A]ny instrument by which post-loss benefits under a residential property insurance policy or commercial property insurance policy, as that term is defined in § 627.0625(1) are assigned or transferred, or acquired in any manner, in whole or in part, to or from a person providing services to protect, repair, restore, or replace property or to mitigate against further damage to the property.
With respect to the first issue on appeal, the Second District affirmed the order of dismissal entered by the trial court and held that the legislature did not exclude assessment services from its definition of “assignment agreement” or add such services to subsection (11)’s exclusion list. See § 627.7152(1)(b) (11), Fla. Stat.
As to the second issue, whether section 627.7152 applied retroactively, the Court also affirmed. The Second District explained that a statute is applied prospectively, and not retroactively, to a contract where the statute pre-existed the contract. (citing Total Care Restoration, LLC. v. Citizens Prop. Ins. Corp., 337 So. 3d at 76). The Court noted that, although section 627.7152 was enacted after the insurance policy was issued to the Mucciaccios, it was in effect for several months prior to Air Quality acquiring the AOB.
This opinion further limits the validity and enforceability of AOBs in Florida, a trend we will continue to monitor.
No Excuse for Failing to Respond Appropriately
The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, affirmed the Trial Court’s decision to not vacate the unopposed dismissal of plaintiff’s complaint against defendants for willfully failing to provide discovery. See Yolanda Follors v. TI Ozone Park Storage, LLC, ____ A.D.3d ___ 2022 N.Y. Slip Op. 05842 (2d Dept. 2022). As the Trial Court properly denied the plaintiff’s request to vacate the dismissal of her complaint for not providing a reasonable excuse for plaintiff’s default or a meritorious defense as to why she failed to provide discovery, the Appellate Division affirmed the Order.
In Follors, the plaintiff alleged that, in May of 2018, she tripped and fell due to an uneven sidewalk flag abutting the defendant’s premises thereby sustaining serious personal injury. When the defendant entered an appearance by filing its answer in February of 2019, they also served various discovery demands upon the plaintiff. A couple months thereafter, plaintiff’s then-counsel moved, inter alia, to be relieved as counsel for the plaintiff. About a year after the then-counsel’s motion, the defendant—who still did not receive plaintiff’s discovery responses—moved to dismiss the plaintiff’s complaint for failing to provide discovery which was unopposed by plaintiff. In October 2020, the plaintiff’s attorney again filed a motion to be relieved as counsel for the plaintiff.
After the Trial Court granted defendant’s unopposed motion to dismiss the plaintiff’s complaint, plaintiff moved to vacate the dismissal order and to extend the time to submit opposition, but the Trial Court denied the plaintiff’s motion to vacate the dismissal order finding that the plaintiff failed to present a reasonable excuse for the failure to respond to the pending motion and failed to present a meritorious defense to the pending motion. The Trial Court ultimately found that the plaintiff’s then-counsel’s second motion to be relieved neither requested a stay for responding to discovery nor addressed the defendant’s motion in any manner to warrant vacating the dismissal order or to defeat the dismissal order. The plaintiff then appealed the Trial Court’s denial of their motion to vacate the dismissal and extend plaintiff’s time to submit opposition.
The Appellate Division affirmed the Trial Court’s denial of vacating the order that dismissed the plaintiff’s complaint finding that the Trial Court “properly determined that, even if the plaintiff had demonstrated a reasonable excuse for her default in opposing the defendant’s motion, she failed to establish that she had a potentially meritorious opposition to defendant’s motion.” See Follers. The Appellate Division also referenced that the plaintiff’s extensive delay of more than seventeen (17) months in providing discovery warranted the Trial Court’s finding of plaintiff’s “willful, contumacious, and ... bad faith” in failing to respond to defendant’s discovery demands.
From a defense perspective, Follers teaches us to be specific in responding to all pending motions, specific in relief requested in all pending motions, and to keep track of all outstanding discovery owed or owed by an adversary to avoid a dismissal of claims. Additionally, if a plaintiff is proceeding as a self-represented litigant or with new counsel, the plaintiff is not afforded unlimited time to respond to discovery demands. Therefore, during the course of a litigation, make sure to delineate all deadlines and filings to make sure proper timely responses, whether for pleadings, motions, or discovery, are provided to avoid all adverse action or in support of a dismissal motion for the represented defendant.
Connecticut Supreme Court Holds That Police's Use of "Soft Car" Does Not Fall Under Immunity Protection
Plaintiff in this matter sought damages from the City of Hartford and one of its police officers, in connection with injuries the plaintiff sustained when the plaintiff’s motorcycle was hit from behind by an unmarked police vehicle. Daley v. Kashmanian, 344 Conn. 464 (2022). The vehicle known as a “soft car” lacked flashing or revolving lights and was indiscernible from a civilian vehicle. The officer was instructed to surveil a number of motorcycles and “quads” in the area who were suspected of speeding and causing havoc on the city’s residents with the use of the “soft car”. Plaintiff at trial sought indemnification for his injuries from the City as to the officer’s actions in violating Connecticut traffic laws. The City asserted that plaintiff was not entitled to recovery under the governmental immunity statute.
The trial court returned a verdict in favor of the plaintiff, but the governmental immunity claim was to be later decided by the judge. The Court ultimately set aside the verdict, as it found in favor of the City in that the officer’s actions fell under the “discretion acts” protected by the governmental immunity statute. The Appellate Court affirmed the trial court, and the plaintiff appealed to the Supreme Court.
The Connecticut Supreme Court after hearing both sides held that the Appellate Court incorrectly concluded that the defendants in this matter were entitled to governmental immunity in connection with the plaintiff’s negligence claim, as the State’s motor vehicle statutes setting forth the rules of the road imposed numerous “ministerial duties” that the officer violated in the operation of his motor vehicle.
The Court examined extensively the statute’s legislative history, and found that negligence in the operation of motor vehicles was not intended to be shielded by governmental immunity. It further examined more contemporaneous cases that a municipality is liable for its employee’s negligent operation of an emergency vehicle engaged in a high-speed police pursuit and rejecting any claim for blanket immunity in such circumstances.
The Court found that although the decision to use a “soft car” to surveil the plaintiff was discretionary, once that decision was made, the officer had a ministerial duty and was legally bound to comply with the rules of the road, unless he was operating his vehicle as an emergency vehicle within the meaning of the Connecticut Statute, which the officer, at trial, conceded he was not.
The Court then remanded the matter back to the trial court with instruction to reverse the trial court’s decision to set aside the verdict and to reinstate the jury’s verdict rendering judgment for the plaintiff as to indemnification from the City.
You Can’t Just Say No: Fighting Causality Requires an Explanation in NY Workers’ Compensation
In Matter of B&W Electrical Contractors (WCB # 9980 1481, Jan. 29, 1998), the New York Workers’ Compensation Board (WCB) recently amended a 1998 claim to include aggravated hypertension as the carrier was unable to provide a credible opinion asserting why the claim was unrelated and was only able to provide additional possible explanations for the claimant’s hypertension.
1998: The Claim Begins
In 1998 the claim was established for injuries to claimant's head, neck, back, knees, and pelvis. In 2014, the claim was amended to include chronic pain syndrome, depression, and post-traumatic stress disorder.
2021: Claimant Raises Hypertension Issues
In 2010, the claimant’s treating physician noted that his blood pressure was elevated and in 2012, he stated that claimant had non-causally related hypertension which was “well controlled.” In a January 2021 report, the claimant's treating nurse practitioner, NP Laing, diagnosed hypertensive disorder which was “[n]ot well controlled due to his extreme anxiety and dealing with workers comp.” In April 2021, the WCLJ found prima facie medical evidence for “aggravation of hypertension” based on NP Laing's January report. The claim was amended to include consequential anxiety in July 2021.
The carrier utilized a consultant, Dr. Wein, who conducted a records review and issued a report in August 2021, concluding that the claimant's hypertension was unrelated to this claim. Depositions of the doctors were then directed on the issue of causal relationship.
NP Laing testified that the anxiety that the claimant “has been dealing with has caused a fluctuation with his blood pressure” and that his hypertension was the result of his workers' compensation accident.
Dr. Wein testified that he was unable to find causal relationship between the claimant's hypertension and his work injury as the medical records periodically indicated that claimant suffered from hypertension. Dr. Wein testified that claimant “most likely does have hypertension” but “there are many causes of high blood pressure, including heart disease itself, anxiety, stress, lifestyle.”
In November 2021, the WCLJ amended the claim to include consequential hypertension. Special Funds requested administrative review.
On review, the Workers’ Compensation Board (WCB) found that Dr. Wein failed to explain why the claimant's causally related anxiety did not contribute to his hypertension. Therefore, the WCB found Dr. Wein’s opinion to be less credible than that of NP Laing, and in doing so they noted that NP Laing examined the claimant and Dr. Wein did not. The WCB found that the claimant has experienced hypertension for many years, at least since 2010, and that it is clear that claimant's causally related anxiety at the very least exacerbated and worsened that condition.
Takeaway
In workers’ compensation, denying causal relationship requires an explanation. Merely pointing out other possible causes does not rebut causality. Further, carriers should always obtain an in-person examination, when possible, rather than a records review, as the WCB took that into account in evaluating the credibility of the doctors.