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IRMI: The Coronavirus (COVID-19)—Is It Compensable?

The Coronavirus (COVID-19)—Is It Compensable?

The issue of compensability for COVID-19 infections acquired by workers continues to be in the forefront of lawmakers, employers, and workers alike nationwide. We now all understand that the pandemic and its aftermath will be more akin to running a marathon rather than a sprint. In the original version of this article, it was anticipated that lawmakers across the nation would address the numerous issues concerning compensability for the coronavirus. Employees now are filing cases against employers, and we can expect that litigation to continue for years.


https://www.irmi.com/articles/expert-commentary/coronavirus-covid-19-is-it-compensable

South Carolina Supreme Court Ex Parte: Builders Mutual and Nationwide Mutual, Appellants In Re: Palmetto Pointe v. Island Pointe/May 13, 2020 Excerpts/Summary by Junfola

AFFIRMED

  • Insurers not entitled to intervene in construction defect trial as a matter of right.
  • In subsequent DJ, Insurers have right to determination of which portions of damages are covered under CGL policies between the Insurers and Insureds.      

CONSTRUCTION DEFECT ACTION

  • Insurers provided independent counsel to defend subject to ROR.
  • At end of discovery, Insurers motioned to intervene for limited purpose of participating in preparation of a special verdict form or a general verdict form accompanied by answers to interrogatories for submission to jury during trial.
  • Insurers hoped jury would determine which portions of the damages were covered, obviating need for the DJ.
  • Trial court denied motions; Insurers’ appeal was certified.

MOTION TO INTERVENE

  • Decision to grant or deny within discretion of the trial court.
  • Court will not disturb decision absent manifest abuse of discretion that results in error of law amounting to a deprivation of rights of the party.
  • Entity seeking intervention must:

(1) Timely application;

(2) assert an (real, material, substantial) interest;

(3) demonstrate that without intervention, disposition of the action may impair or impede ability to protect that interest;

(4) demonstrate that its interest is inadequately represented by other parties.

  • Insurers are not “real parties in interest” cannot satisfy the four-part test and have not met the requirements to intervene as a matter of right.
  • Insurers’ intervention would (1) unnecessarily complicate the action, including altering the Association’s burden of proof and possibly delaying the trial, and (2) create a conflict of interest for the Insureds’ counsel, who were supplied to them by the Insurers.
  • It was not the intent in Newman to categorically foreclose a subsequent DJ to resolve a coverage dispute.  To the extent Newman may be read to foreclose an insurer’s subsequent DJ to resolve the coverage dispute, we modify Newman accordingly.
  • Harleysville neither mandates intervention nor forecloses a DJ to resolve a coverage dispute.
  • The parties offer varying approaches on the specifics of how a subsequent DJ should be tried. 
  • A significant point of contention is the Insurers’ concern that any coverage decisions in the DJs will be bound by factual determinations made in the construction defect action.

HOW TO FAIRLY ALLOCATE COVERED AND NON-COVERED DAMAGES?

  • Insureds and the Insurers are not precluded from introducing evidence as to which damages are covered (or excluded from coverage).
  • The parties are bound by the jury verdict.
  • We reject the notion that, in a DJ, it is “improper and purely speculative” to allocate a general verdict into covered and non-covered damages.
  • We do not oppose the parties coming to an agreement on a framework for allocating damages, subject to the approval of the court.
  • Failing an agreement of the parties, we set forth a default approach that shall serve as the framework for use in DJs for allocating covered and non-covered damages. 
  • This default allows litigants in a DJ to use percentages, rather than exact dollar amounts, to determine the amount of covered and non-covered damages in a general verdict.
  • The primary source of evidence in the DJ should be the transcript of the merits hearing. 
  • In the discretion of the court, additional evidence may be presented that is relevant to the coverage dispute determination, such as expert testimony.
  • The additional evidence, if any, must be narrowly tailored to the coverage dispute question, as the transcript of the merits hearing will be the primary source of evidence. 
  • The trier of fact shall then make a determination allocating on a percentage basis what portion of the underlying verdict constitutes covered damages and what portion constitutes non-covered damages. 
  • Perfect precision in allocating damages is not always achievable. 
  • Where perfect precision is not achievable, a fair approximation must suffice. 
  • Our research persuades us that the percentage-based approach will best achieve a fair allocation of damages.

Fortitude/American Resistance in the Era of Outrage by Dan Crenshaw Grand Central Publishing, Kindle Edition

Releasing a book during a pandemic probably is not the ideal time to do so. But maybe now is exactly the right time for Dan Crenshaw’s Fortitude/American Resistance in the Era of Outrage. 

It’s about personal responsibility, self-discipline, and self-reliance. In a nutshell, it’s about mental toughness, something that, arguably, is in short supply these days and that is critically needed to counter the “self-pity, indulgence, outrage, and resentment” that characterizes much of our present culture.

I’ve read a number of books on self-improvement during my lifetime, too many of which were pop psychology babble, and I’ve learned that the dispenser of advice on how to improve oneself better have the bona fides to do so. Fortitude is the best book I’ve read, hands down, on self-improvement.

Crenshaw is 36 years old. It’s legitimate to question whether a such a young guy has the bona fides worthy of one’s attention.  One might think that the magical confluence of experience and education producing wisdom would occur much later in life. Crenshaw has what it takes.

A Navy SEAL Lieutenant Commander and now Congressman from Texas, Crenshaw is the epitome of mental toughness.  While in Afghanistan in 2012 he was wounded, lost his right eye and came perilously close to losing vision in his left.  He went on to earn a Master of Public Administration from Harvard’s Kennedy School of Government and was subsequently elected to Congress in November 2018.

His book is the antidote to toxic outrage, a pervasive weakness in our culture that is “the muting of rational thinking and the triumph of emotion.”  Crenshaw doesn’t pull any punches, as if you would expect something different from a SEAL.  The culture of outrage is something to overcome and this requires one to be mentally tough.

What is this outrage? “What used to be rare instances of political correctness, microaggressions, and irrational anger have metastasized into the outrage culture we see today—characterized not just by outrage and political correctness but also by identity politics and an increasingly polarizing media and digital environment.” It is “petty, weak-minded” and, ultimately, disempowering.  It breeds a dependence on government to take care of us, to alleviate our pain.

The media is complicit. Outrage is a poisonous hypersensitivity “cheered on by our media and opinion journalists who thrive on drama, conflict, and strife. Knowing that the most salacious headlines will get the most clicks, journalists are all too happy to oblige.”

The responsibility to change this and improve lies squarely on you. “If you’re losing your cool, you are losing. If you are triggered, it is because you allowed someone else to dictate your emotional state. If you are outraged, it is because you lack discipline and self-control. These are personal defeats, not the fault of anyone else. And each defeat shapes who you are as a person, and in the collective sense, who we are as a people.”

I highly recommend this book.