The Leading Rule for the Lawyer...
Feb 17, 2021


We started our week with Presidents Day in the United States.  And, as your authors are digging out from winter weather here in Illinois, we share our affinity for President Abraham Lincoln throughout this week’s litigation-focused edition.



The Illinois General Assembly passed H.B. 3360, which would dramatically change the way pre-judgment is calculated in Illinois’s civil court system.  If signed by Governor Pritzker (D-IL), H.B. 3360 would change the Illinois pre-judgment rate from 5% to 9%.  In addition, interest would accrue on the date the defendant has notice of the injury from the incident itself or a written notice. Under this new law, plaintiffs could begin “earning interest” on prospective judgments before filing suit. Such interest would also be imposed on non-economic damages such as pain and suffering, as well as future damages that have not yet been incurred such as medical expenses and lost wages.  Our eyes are trained on Springfield for the outcome of this story.



Montana Gov. Greg Gianforte (R-MT) signed into law a measure, which passed along party lines, that aims to protect businesses and health care providers from coronavirus-related lawsuits. Under Montana’s liability protection measure, businesses and health care providers, including assisted living facilities, may defend suits filed by individuals exposed to the coronavirus on their premises, except in cases of “gross negligence” or when they intentionally spread the virus. In a similar way, Alabama Governor Kay Ivey (R-AL) signed into law a measure that provides civil immunity for Alabama businesses, health care providers, educational entities, churches, governmental entities, and cultural institutions from lawsuits alleging that they helped spread COVID-19 to their workers or customers.  The legislation only allows lawsuits against businesses and other entities that “made the damages, injury, or death by acting with wanton, reckless, willful or intentional misconduct."



At least twenty other states are considering protections against liability claims involving businesses, health care providers, and educational institutions. In Indiana, legislators are poised to finalize a fast-tracked proposal that will give a broad shield protecting businesses and others from lawsuits by people blaming them for contracting COVID-19. The proposal, which is a top priority of Republican legislative leaders and Governor Eric Holcomb (R-IN), would be retroactive to March 1, 2020.  We are tracking a similar approach to COVID-19 liability shields in Georgia, South Carolina, and Florida.



Staying with Florida, lawmakers in Tallahassee introduced legislation to curb the elevated litigation costs stemming from roof replacement claims.  According to the Florida Office of Insurance Regulation, domestic property insurers reported a more than $1 billion underwriting loss for the first three quarters of 2020 and almost $500 million in negative net income. Last month, Florida’s Insurance Commissioner, David Altmaier discussed roof claims with lawmakers stating, “[w]e need to really spend some time on this … coming up with ways that we might be able to mitigate this kind of activity.”  Altmaier also indicated that more consumers are turning to Citizens Property Insurance Corp. (Citizens), the state-run carrier.  Citizens issued 545,000 policies as of Feb. 5, a 23% increase 


Environmental, Health, and Safety


Environmental advocacy groups petitioned the U.S Court of Appeals for the 9th Circuit for administrative review of the Environmental Protection Agency’s (EPA) long-awaited “Final Risk Evaluation for Asbestos.”  The group also sent the EPA a 60-day notice of their intent to file suit against the EPA under the Toxic Substances Control Act (TSCA) in an effort to revise the report.  Advocates maintain that the EPA “underestimates the dangers of this toxic mineral, despite a presentation of unreasonable risk to human health.”  Opponents of the report seek to push the EPA to perform its nondiscretionary duty of addressing the use and disposal of legacy asbestos in that risk evaluation.  We are following this developing EH&S issue closely.



In Australia, a late summer surge in Legionnaires' disease prompted the New South Wales (NSW) Health Commission to call on building owners to ensure air conditioning systems are properly maintained. The NSW Health Commissioner reports that 2021 has seen a disproportionate number of positive cases across Sydney and the Illawarra.  The disease, which presents with symptoms similar to COVID-19, is caused by Legionella pneumophila bacteria, and is often linked to contaminated air conditioning plants in large buildings.  In related news, the University of Queensland’s Institute for Molecular Bioscience reported this week that synthetic cannabidiol (CBD) effectively kills the bacteria responsible for Legionnaires’ disease.  Researchers hope this “breakthrough discovery” will lead to the first new class of antibiotics for resistant bacteria in more than 60 years


Making Our Way Around the Country


In the Virginia state legislature, the Consumer Data Protection Act (CDPA), has been referred to a reconciliation committee, which is a final step toward passage.  The sponsors of the CDPA credit the California Consumer Privacy Act (CCPA) and the European Union’s General Data Privacy Regulation (GDPR) as the bill’s “inspiration.”  The CDPA would grant consumers a right to access, correct, delete, and obtain a copy of personal data and to opt out of the sale of personal data, processing of personal data for the purposes of targeted advertising, and profiling. If passed and signed, the CDPA would become effective on Jan. 1, 2023.



In related news, bipartisan legislation to address concerns over data privacy and data manipulation unanimously passed out of the Oklahoma House Technology Committee. The Oklahoma Computer Data Privacy Act, requires internet technology companies to obtain explicit permission to collect and sell personal data.  We’re tracking the bill’s progress in Oklahoma City.



Legislation introduced in the New Jersey state legislature would expand workers’ compensation to included slips, trips, and falls in employer parking lots.  The proposed measure, S.B. 771, which passed the New Jersey Senate last month, advanced to the Assembly Labor Committee.  The bill addresses the oft-litigated question of compensability for occurrences that take place when a worker is making his or her way into, or out of, the place of business.  The bill maintains that, if an employer provides or designates a parking area for employees, their employment commences when they arrive at the area and ends when they leave it.



The Federal Railroad Administration (FRA) is seeking comments through February 22nd on a proposed rule that would require certain railroads to develop and implement a fatigue-risk management program as part of the railroad’s larger railroad- safety risk-reduction programs. Under the proposal, railroads would determine their fatigue-risk by identifying and analyzing applicable hazards and take action to mitigate, if not eliminate, that risk.



Or, as President Lincoln would cite, is diligence.  Certainly a timely and prescient message for all our readers who are beginning Lent today.  Our best wishes to all of you celebrating this Holiday season.  Until next week, stay safe, stay well, and stay connected. 


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