Insurance Defense Lawyer & Attorney : Strong & Hanni Law Firm : Product Liability, Insurance Coverage

Strong & Hanni is currently involved in resisting attempts by the Plaintiffs’ Bar to dilute the value and effect of Rule 35 medical examinations.  

    In recent months, the Plaintiffs’ Bar approached the Utah Supreme Court Advisory Committee for the Utah Rules of Civil Procedure with proposed amendments that would impair the ability of defendants to defend themselves through the use of Rule 35 medical examinations.  Historically, civil defendants in personal injury actions have been permitted to obtain medical evaluations performed by a physician or care provider of their choosing.  Over the course of several years, the Plaintiffs’ Bar in the State of Utah has waged a campaign in part to discourage physicians from participating in such examinations and to impose limitations on such examinations that render such examinations less effective.

    Stephen J. Trayner of Strong & Hanni and two other members of the Utah Defense Lawyers Association (“UDLA”) have been appointed by the UDLA Board to serve as spokespersons for the Defense Bar before the Supreme Court’s Advisory Committee on the Rules.  Currently before the Committee is a proposal that would require such medical examinations to be recorded, either through the use of video or audio tape.  The proposed amendments also would require many medical examiners to provide copies of all prior defense related examination reports for a period of four (4) years.  Production of such reports would be at the expense of the defense lawyer or defendant retaining that physician or care provider to perform a Rule 35 examination.  In recent days, Plaintiffs Bar has also suggested that they will be seeking further modifications and limitations to the scope and nature of a defendant’s right to use Rule 35 examinations.  

    During the pendency of personal injury actions, defense lawyers frequently need to retain the services of physicians, neuropsychologists, psychologists, physical therapists, and other health care providers to conduct Rule 35 examinations.  Strong & Hanni is playing an active role in preventing any further dilution of a defendant’s right to a Rule 35 examination.

    It is anticipated that the Supreme Court’s Advisory Committee will make recommendations to the Utah Supreme Court this fall on any amendments to Rule 35 of the Utah Rules of Civil Procedure.  

Summary provided by Stephen J. Trayner

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The Utah legislature was convened from January to March 2008.   During the 2008 legislative session, Strong & Hanni attorneys, Stephen J. Trayner and Andrew D. Wright, served as legislative lobbyists for one of the firm’s largest clients, State Farm Insurance, and the Utah Defense Lawyers Association on a number of critical pieces of legislation before the 2008 Legislature.

Following the annual 45 day session, the governor signed more than 400 bills and resolutions into law. More than 100 of these legislative enactments potentially impact consumers, corporations, and insurance companies on tort related topics.

Unless otherwise stated, the effective date for all bills is May 5, 2008. A brief description of a few of these bills is included:

SB 149 Motor Vehicle Liability Policy Minimum Limits

The Plaintiffs’ Bar introduced this bill with the intent of raising Utah’s motor vehicle minimum limits from 25/50/15 to 30/60/20. Strong & Hanni and the insurance industry opposed the bill. We were instrumental in convincing the Editorial Board of Utah’s largest newspaper, The Salt Lake Tribune, to write an editorial opposing the bill. On the last day of the legislature, a compromise was struck raising the limits to 25/6515. This result was more of a win for the industry than it was for the Plaintiff Bar. By only raising the per-accident limit and not the per-person limit, premium increases should be minimal and an insurer’s exposure for one or two people injured in the same vehicle will remain the same. This bill’s effective date is January 1, 2009. As policies come up for renewal in 2009, the liability limits must be equal to or greater than the new mandated limits. This bill takes effect on January 1, 2009.

SB 152 Presumptive Personal Representative

This bill provides automobile insurers with a simplified procedure for resolving the settlement of wrongful death claims where the applicable statutorily mandated insurance limit is being paid to a decedent’s heirs. This bill allows heirs to avoid expensive and lengthy probate procedures for an otherwise asset-free estate.  The bill provides that a presumptive personal representative may present and resolve claims for wrongful death, liability, uninsured and underinsured motorist claims without the necessity of a formal court appointment of a personal representative. 

SB 155 Punitive Damages Amendments

This bill requires that a court enter a judgment for punitive damages on behalf of the injured party and the state; changes the initial amount to be paid to the injured party from $20,000 to $50,000 and sets priorities for the collection of judgments and attorney fees.

SB 290 Private Investigators’ Access to Driver Licensure Information

This bill removes the provision allowing private investigators holding a registrant license access to personal driver license information, but does not modify the provision allowing private investigators holding an agency license to obtain personal driver license information as allowed by statute.

HB 93 Insurance Fraud Amendments

This bill expands required reporting of fraudulent insurance acts and modifies the requirements of that report. This bill also mandates the reporting of fraudulent insurance activities.  The bill provides immunity for organizations such as the National Crime Information Bureau. 

HB 144 Motor Vehicle Insurance Amendments: PIP Reimbursement Duties

This bill: provides that there is no statutory right of reimbursement for no-fault/PIP liens between insurers once the at-fault party’s carrier has paid its policy limits. The bill further provides a mechanism for the insurer of the at-fault party which has reimbursed the injured party’s carrier for no-fault/PIP benefits and subsequently determines that some or all of the reimbursed monies are needed to settle a third party liability claim to obtain the return of such funds. Once written notice has been provided to the no-fault/PIP carrier that the reimbursed benefits are needed to fund a settlement of a bodily injury claim, the no-fault (PIP) insurer must return monies within 15 business days.

HB 467 Motor Vehicle Insurance Arbitration Amendments

This bill amends the current state law permitting plaintiffs in motor vehicle accident cases to opt into mandatory arbitration. Under the former law, a party appealing an arbitration award under Utah Code Ann. §31A-22-321, was required to pay certain costs capped at $2,500 unless the appealing party improved the verdict in their favor by 20% in a de novo trial before a district judge. The threshold for an award of costs was raised to a 35% higher/lower verdict on appeal and the cost cap was raised to $4,000. 

SB 220 Cause of Action for Defective Construction

This bill restricts causes of action for defective construction to a breach of contract action, unless there is certain other property damage, personal injury, or an intentional or willful breach of a legal duty. 

Summary provided by Stephen J. Trayner

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The Utah Legislature convenes for its annual 45 day session in mid-January. Stephen Trayner and Andrew Wright of Strong & Hanni once again will serve as lobbyists for State Farm Insurance and the Utah Defense Lawyers Association.  

The plaintiff’s bar has been very active and has a variety of proposals for 2008 including:

· Increasing the minimum financial responsibility limits on automobile insurance policies in the state from 25/50/15 to 30/60/15;

· Amending the state’s survival statute to allow for the recovery of general damages by a decedent’s estate even if the decedent dies of causes wholly unrelated to the underlying accident;

· Amending the state’s automobile liability arbitration statute, Utah Code Ann. 31A-22-321, in such a way as to subject carriers to increased risk of bad faith exposure on minimal limits cases; and

· Amending the Utah Comparative Fault Act to reinstitute some elements of joint and several liability.

Strong & Hanni is prepared to fight these pro-plaintiff, anti-Tort Reform measures. In addition, Strong & Hanni has been involved in drafting and lobbying for the following measures:

· Amending the Utah Comparative Fault Act to include intentional torts within the definition of “fault” so as to provide that no negligent party is held financially liabile for the torts or crimes of another person;

· Amending the PIP statutes to clarify that once a carrier has paid its liability limits, no contractual duty to reimburse a PIP carrier exists; and

· Amending the insurance code to permit the settlement of wrongful death claims where there is only statutorily mandated minimum liability coverage available quickly and efficiently.

Summary provided by Stephen J. Trayner

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            Strong & Hanni played an active role in researching and drafting proposed legislation, as well as lobbying and testifying before the Utah Legislature on various tort reform measures during the 2007 legislative session.  Earlier in 2006, Strong & Hanni was hired to perform lobbying on behalf of the State Farm Companies in the State of Utah.  Strong & Hanni’s attorneys were frequently called upon to push tort reform issues and to stem the tide of plaintiffs’ legislation meant to change Utah’s conservative litigation climate.

            As part of Strong & Hanni’s involvement in the legislature the following bills were enacted:

1. HB 44: Amendments to Utah Code Ann.§ 31A-22-321 (Third Party Bl
Arbitration)

The amendment to the existing arbitration statute:

•  provides that a person may elect to submit a third party motor vehicle accident bodily injury claim to arbitration by filing a notice to submit the claim to arbitration within 14 days after the complaint has been answered;

• clarifies that an arbitration award is limited to $25,000 in addition to any available personal injury protection benefits and any claim for property damage;

• provides that a claim for property damage may not be made in such arbitration proceedings unless agreed upon by the parties in writing;

• provides a procedure for a person to rescind an election to arbitrate and provides that a person who rescinds an election may not elect to arbitrate again;

• provides for discovery to be conducted in accordance with the Utah Rules of Civil Procedure and that all discovery is to be completed within 150 days of the election to arbitrate;

• provides for the procedures for selecting arbiter(s) within 90 days of the election to arbitrate; and

• makes other technical changes.

2. SB 113: Amendment to Utah Code Ann. § 31A-22-321 (Savings Statute)

            Utah appellate courts had previously interpreted the Utah Savings Statute to allow multiple uses of the savings Statute to revive time-barred claims.  The amendment clarifies the legislature’s intent that the savings Statute may be invoked only once by a Plaintiff once a case has been dismissed other than on the merits of the claim. 

            Efforts to bring about additional tort reform measures, including the lowering of the bodily injury statute of limitations from four years to three years, clarifying that the Utah Comparative fault statute allows for comparisons of fault even among intentional tortfeasors, passing a primary seat belt law, and others were met with strong opposition by the plaintiffs’ bar and were defeated ion 2007.   Strong & Hanni will continue to work with state legislatures and others to see that the tide of plaintiff oriented legislation is defeated and to see that these and additional tort reform measures are brought before the legislature in January 2008.

Written by Stephen J. Trayner

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