RI Coverage Law Sinks Boat Claim
The insured purchased a boat to be used for gill-net fishing. He applied for an insurance policy from Commercial Union but indicated on his application that the boat was a lobster boat. The policy contained an express warranty that the only commercial use of the vessel should be for lobstering.
Commercial Union testified that, had it known that the boat was in fact for gill-netting, it would have charged the insured a 25% higher premium. The boat was involved in a collision which caused serious injuries to the occupants of the other boat. Commercial Union denied coverage under the policy for the injuries. It alleged that because the insured made a material misrepresentation in his insurance policy application, the policy was voidable under either maritime or state law. The First Circuit agreed and held that the policy would be voidable.
In federal maritime law, the doctrine of "uberrimae fidei" means "of the utmost good faith." The insured is required "to disclose to the insurer all known circumstances that materially affect the insurer's risk, the default of which renders the insurance contract voidable by the insurer." Here, because the insurer would have charged a much higher premium had it known the type of vessel, the insured had misrepresented a material fact, rendering the policy voidable.
Under Rhode Island state law, a material misrepresentation that affects the insurer's decision to accept the risk and insure the applicant is a basis for rescinding a contract. The court held that the policy was voidable and Commercial Union did not have to cover the claims arising out of the boat accident.
SJC Sweeps Premises Law in MA
The Massachusetts Supreme Judicial Court has adopted a new notice test in premises liability cases. A plaintiff was once required to prove that the owner had actual or constructive knowledge of a dangerous condition. Now, plaintiff need only prove that where an owner's chosen "mode of operation" makes it reasonably foreseeable that a dangerous condition will occur, a store owner will be held liable if the plaintiff provides the owner failed to take all reasonable precautions necessary to protect its invitees. Sheehan v. Roche Bros. Supermarket.
In the case at issue, the plaintiff slipped and fell, sustaining significant injuries, as he was shopping in a grocery store. The plaintiff and a store manager each testified that he observed a grape on the floor in the area of plaintiff's fall. The court noted that the supermarket had notice of the inherent risks associated with the operation of a self-service grocery store, including the possibility that juices and other substances might spill on the floor. The question of whether the premises owner took all reasonable steps to protect its customers is one of fact for the jury.
The recent ruling will make it more difficult to secure summary judgment in these slip-and-fall cases, resulting in an increased number of trials on these issues.
Proposed OSHA Changes Increase Settlement Costs
Bills proposing significant chances to the Occupational Safety and Health Act have been reintroduced in both Houses of Congress. The Protecting America's Worker's Act ("PAWA"), which was first introduced in 2005, aims to increase penalties for OSHA violations stemming from death or injury on the job, require employers to provide safety gear at no extra cost, expand the reach of a retaliation claim under the OSH Act and expand the reach of the Act generally.
More expensive penalties At present, an employer assessed for a willful violation can be assessed no more than $70,00 per violation. PAWA would up that amount to $100,000. If an accident results in an employee's death, the employer could face a penalty of up to $250,000 and a fine of $50,000 (up from the current $5000 amount). In addition, PAWA will require changes to penalty amounts generally (and at least once every 4 years) to coincide with changes in the Consumer Price Index. Immediately, penalties for "serious" violations would increase from $7000 to $10,000. Penalties for "serious" violations resulting in an employee's death would range from $20,000- $50,000. The proposed bill would boost criminal sanctions as well, giving federal prosecutors the chance to levy felony charges against an employer when a violation results in an employee's death or serious injury.
Retaliation Expanded The law's current definition of retaliation is limited to the filing of a complaint with OSHA, instituting a procedure under the Act, or testifying at an OSHA proceeding. PAWA would add protections for employees who report an injury, illness or condition to an employer, the employer's agent, a safety and health committee or that committee's representative. PAWA also creates an administrative procedure to prosecute retaliation cases. In addition, an employee would have 180 days after the alleged discrimination to file a complaint, instead of the 30 now in place. The Bill allows for remedies including reinstatement, back pay, compensatory damages and costs and expenses (which can include attorneys fees) - a significant change.
More Employees Covered by the Act Currently, OSHA does not cover federal, state or local public employees. PAWA would expand the Act's coverage to those employees. Additional private sector workers would also be included, flight attendants among them.
Jockeying the Duty - Assumption of Risk in NY
In 1978, Ronald Turcotte, the jockey who had ridden Secretariat to the triple crown, was thrown from the horse he was riding when that horse tripped over another. Turcotte sustained injuries that rendered him a paraplegic. Turcotte sued a fellow jockey, that jockey's employer and the New York Racing Association. The court dismissed Turcotte's claims after analyzing them under the NY comparative negligence statute.
The scope of a defendant's duty is dependent in part on plaintiff's reasonable expectations of the care owed to him by others. Where the risks of an activity are fully comprehended or obvious, and plaintiff then voluntarily participates in that activity, plaintiff has consented to them and defendant performed his duty. In effect, then plaintiff has agreed to ease defendants' obligation toward him and take his chances with the risks as he knows them.
This is especially true in professional sporting events. While participants do not consent to reckless or intentional acts, they do consent to a spectrum of risks dependent on the purpose of the game, the methods of winning it, the relationship of the defendant's conduct to the game's purpose, especially his conduct to rules and which customs whose purpose is to enhance the safety of the participants. Moreover, a professional clearly understands the usual incidents resulting from carelessness, particularly those which result from the customarily accepted method of playing the sport.
