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Archive for the ‘Tort and Catastrophic Loss’ Category

Federal Government Issues New CMS Guidance To Protect Nursing Home Residents From COVID-19

Posted on: March 30th, 2020

By: Kevin G. Kenneally, Michael P. Giunta and William E. Gildea

Nursing home and skilled nursing facilities have been particularly hard hit by the COVID-19 virus.  The resident populations are uniquely vulnerable and outbreaks in facilities nationwide have sparked actions to protect elderly and disabled residents.

The Centers for Medicare & Medicaid Services (“CMS”) provided new guidelines in a memorandum detailing protections for nursing home residents from COVID-19.  CMS recommends that all facilities restrict visitation of all visitors and non-essential health care personnel, absent certain compassionate care situations.  This follows on the heels of the preliminary results of the inspection of the Kirkland, Washington nursing home, which was the epicenter of the COVID-19 outbreak.  In addition to a focused inspection process provided to all facilities and inspectors, which is designed to ensure each facility is prepared to prevent the spread of the virus, the memorandum addresses additional guidance. If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice. 

The memorandum lists specific guidelines that facilities should adhere to, including but not limited to: (1) cancelling communal dining and all group activities; (2) performing active screening of residents and staff for fever and respiratory symptoms; (3) reminding residents to practice social distancing and perform frequent hand hygiene; (4) screening all staff at the beginning of their shift for fever and respiratory symptoms; and (5) identify staff that work at multiple facilities and actively screen and restrict them appropriately.  The memorandum further discusses how facilities should consider hygiene and monitoring symptoms for persons entering/exiting facilities.  Facilities are encouraged to review and revise how their vendors deliver supplies, such as implementing dedicated drop-off locations for supplies at facilities.  If a nursing home has a resident suspected of having COVID-19, it should contact their local health department immediately. 

Instead of visits, facilities should consider offering alternative means of communications and assigning staff as primary sources of contact for residents.  If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice.

The March 13, 2020 memorandum, in part, calls for facility staff to regularly monitor the Centers for Disease Control’s (“CDC”) website for additional information and resources. CMS recommends that facilities perform frequent monitoring for potential symptoms of respiratory infection.  The facilities should further maintain a “person-centered approach to care,” which includes communicating effectively with residents, resident representatives and/or family and further understanding the individual needs and goals of care for residents.  If a facility experiences an increased number of respiratory illnesses (regardless of suspected etiology), it should immediately contact their local or state health department for further guidance.

State governments closely regulate nursing homes, and many are issuing state specific guidance.  If a state government implements actions that exceed CMS requirements through an executive order, the facility will not be out of compliance with CMS’ requirements.  The memorandum further states that “State and Federal surveyors should not cite facilities for not having certain supplies (e.g., PPE such as gowns, N95 respirators, surgical masks and ABHR) if they are having difficulty obtaining supplies for reasons outside of their control.”  However, CMS still expects “facilities to take actions to mitigate any shortages and show they are taking all appropriate steps to obtain the necessary supply as soon as possible.”

The memorandum provides the following email address for a point of contact: [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

State and Federal Motor Vehicle Exemptions related to COVID-19

Posted on: March 18th, 2020

By: Josh Ferguson

The Federal Motor Carrier Safety Administration (FMCSA) issued a national emergency declaration and in doing so provided a limited exemption from driver safety regulatory requirements.  The exemption applies “for motor carriers and drivers engaged in the transport of essential supplies, equipment and persons” that provide “direct assistance in support of relief efforts related to the COVID-19 outbreaks.”  The Emergency Declaration was effective March 13, 2020 and remain in effect until the end of the emergency or until 11:59 p.m. (ET) on April 12, 2020, whichever comes sooner.

The declaration defines “Direct assistance” as transportation and other relief services provided by a motor carrier or its driver(s) incident to the immediate restoration of essential services, such as medical care, or essential supplies such as food, related to COVID-19 outbreaks during the emergency.  These include transportation of the following:

  • Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
  • Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19, such as masks, gloves, hand sanitizer, soap and disinfectants;
  • Food for emergency restocking of stores;
  • Equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
  • Persons designated by federal, state or local authorities for medical, isolation, or quarantine purposes; and
  • Persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Direct assistance does not include routine commercial deliveries or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks.  Another important aspect is the exemption terminates when a driver or commercial motor vehicle is used to transport cargo or provide services not identified on the list.

Many states have issued public emergencies, and ultimately those emergency powers may include other exemptions for operators of commercial vehicles.  For example, in Georgia, in declaring a public health emergency Governor Kemp stated that the declaration would immediately be used to help some nurses from other states get temporary licenses to practice in Georgia and lift restrictions on commercial truck drivers to let them continue stocking stores with supplies.  Just how these emergency declarations and exemptions factor into tort and employment-related claims will be seen months and years down the road.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

Sticks and Stone Can Hurt People, But Disagreement Between NFL Players Is A Reminder That Words Also Can Hurt Us

Posted on: February 20th, 2020

By:  Jeffrey Hord

In the final minute of last November’s NFL game between the Cleveland Browns and the Pittsburgh Steelers, Browns defensive end Myles Garrett ripped off Steelers quarterback Mason Rudolph’s helmet and swung it at Rudolph, hitting him in the head. This attack drew national attention and resulted in an indefinite suspension for Garrett. Despite the shocking nature of the attack, some early speculation that Rudolph might sue Garrett for battery for the this on-field altercation showed no signs of spilling over into the courts…until now.

Last week, during an interview with ESPN’s Mina Kimes, Garrett repeated a claim that he first made in the days following the November brawl: specifically, that Rudolph had sparked the fight by calling Garrett a racial slur. Rudolph has emphatically denied the allegation and also notes that the NFL investigated Garrett’s allegation and concluded that there was “no evidence to support” his claim.

Now, Rudolph’s attorney has responded to Garret’s latest allegation by suggesting that his client may now sue Garrett for slander. In California – where the interview with Kimes took place – slander involves a false statement by one person about another person which tends directly to injure the victim with respect to his office, profession, trade or business. Rudolph essentially contends that his reputation has been damaged by the accusation that he used a racial epithet.

Interestingly, however, Rudolph may not prevail simply by proving that the allegation is false. Rather, if Rudolph is deemed a “public figure” in the eyes of the law, Rudolph then will have to prove that Garrett also acted with actual malice in making the allegation. Under California law, “actual malice” is a higher standard to meet as it must be proven that the false statement was made with actual knowledge that the statement is false or with reckless disregard for the truth. If the fight that started on the field leads to a legal fight off the field, it will be interesting to see if Garrett tries to push it into the NFL’s grievance system, what evidence Garrett relies upon in support of his allegation, whether a court finds that Rudolph is a “public figure” and how Rudolph may try and use the NFL’s report as evidence that he did not utter the alleged word.

If you have questions regarding defamation or other tort claims, feel free to contact Jeffrey Hord at [email protected].

I CAN’T GET NO, SATISFACTION – The Doctrine of Accord & Satisfaction

Posted on: February 12th, 2020

By: Stacey Bavafa

There are two conflicting statutes that govern the issue of Accord and Satisfaction in California: California Code of Civil Procedure §1526 and California Commercial Code §3311.

Enacted in 1987, California Code of Civil Procedure §1526 states that when a check is tendered by a debtor in furtherance of settlement of a disputed claim, and the words “payment in full,” or other words of similar meaning are noted on the check, the acceptance of the check does not constitute an accord and satisfaction if the party accepting the check crosses out the satisfaction language on the check prior to its deposit. In other words, a Claimant could cross out the satisfaction language, cash the check, then continue to bring a claim for the balance they believe is owed.

In 1992, the California Legislature enacted §3311 of the California Commercial Code which contradicts California Code of Civil Procedure §1526 in that it states:

(a) If a person against whom a claim is asserted proves that (1) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (2) the amount of the claim was unliquidated or subject to a bona fide dispute, and (3) the claimant obtained payment of the instrument, the following subdivisions apply.

(b) Unless subdivision (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

(c) Subject to subdivision (d), a claim is not discharged under subdivision (b) if either of the following applies:

(1) The claimant, if an organization, proves that (A) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (B) the instrument or accompanying communication was not received by that designated person, office, or place.

(2) The claimant, whether or not an organization, proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with subparagraph (A) of paragraph (1).

(d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.”

In essence, under California Commercial Code §3311, if a Claimant accepts and cashes a check marked with conspicuous language that the check was tendered in full satisfaction of the claim, the entire debt is discharged regardless of whether the Claimant had crossed out the satisfaction language on the check. The UCC defines conspicuous language as a “term or clause… so written that a reasonable person against whom it is to operate ought to have noticed it.”

So, which law controls?

A California Appellate Court – Woolridge v. J.F.L. Electric, Inc. (2002) 96 Cal.App.4th. Supp. 52, and a Federal District Court – Directors Guild of Am. v. Harmony Pictures, Inc., 32 F. Supp. 2d 1184, 1192 (C.D. Cal. 1998) acknowledged that when two statutes governing the same subject matter cannot be reconciled, the latter in time prevails. As such, both courts held that the provisions of §3311 supersedes §1526.

Therefore, when it comes to settling a claim, ensure the check itself or a written communication accompanying the check contains conspicuous language (e.g. “PAYMENT IN FULL”) to prevent any issues. Thereafter, if a Claimant accepts the check and cashes it, the entire debt is discharged. If a Claimant accepts the check, does not cash it, but instead holds onto it for a period of 90 days or more, the entire debt is discharged. If a Claimant wants to argue that they are still owed additional settlement funds, a remedy may be to file a Motion for Summary Judgment based on the Doctrine of Accord and Satisfaction, citing the statutes and case law above.

If you have any questions or would like more information, please contact Stacey Bavafa at [email protected].

Undefeated Records: Good for Sports & Business

Posted on: November 1st, 2019

By: Brittany Kurtz

A contentious rivalry between divisional foes late in the season fueled a halftime bathroom brawl in December 2014 leading a Dallas Cowboys fan to file negligence claims against the Philadelphia Eagles organization and its security manager at Lincoln Financial Field. The Cowboys fan alleged a group of Eagles fans repeatedly taunted him, going so far as to grab his star-emblazoned hat and tossing it into a urinal, ultimately ending in an altercation with the Cowboys fan on the ground and surrounded by a handful of attackers. These attackers were never found, but the Cowboys fan alleged his injuries were caused by the Eagles organization and its security manager for failing to provide reasonable security within the bathroom.

Most surprising was the Cowboys fan’s favorable jury verdict in a Philadelphia courtroom. The Philadelphia Eagles organization appealed to the Superior Court as it believed the Cowboys fan failed to meet his burden of proving a duty owed by the organization regarding the security measures in place and was entitled to Judgement N.O.V.

The Superior Court acknowledged the Philadelphia Eagles organization held its property open to the public for business purposes and would be subject to liability for negligent or intentional harmful acts of third persons which it must take reasonable precaution against that which might be reasonably anticipated. Generally, individuals are not liable for the criminal conduct of another absent a preexisting duty. However, the Eagles organization voluntarily undertook a duty to protect its business invitees, including Cowboys fans, from fighting during football games at Lincoln Financial Field. Therefore, the Eagles organization had a duty to protect its invitees against third party conduct when it had reason to anticipate such conduct.

The Superior Court determined the Eagles organization and its security management team as a matter of law did not have notice of violent assaults regularly occurring in its restrooms during games, therefore it was reasonable to not have a stationed security guard at the restrooms. The security logs only demonstrated the Eagles organization was on notice that there were persons who became incapacitated because of intoxication in the restrooms, not violence.

The Cowboys fan also alleged negligent operation of the security program in place as it is known that wearing opposing team apparel to an Eagles’ game is dangerous. However, the security team employs undercover guards wearing the opposing team’s gear in order to identify those members of the convocation of Eagles who harass fans of the opposing team to be addressed. Therefore, the Court determined the Cowboys fan failed to demonstrate the security program was conducted without reasonable care and that the Eagles organization should have reasonably anticipated violent assaults occur in the restrooms and should have been monitored by security. The Court vacated the judgment entered in favor of the Cowboys fan and remanded to the trial court for entry of judgment in favor Philadelphia Eagles organization and its security management team. Pearson v. Phila. Eagles, LLC, 2019 PA Super. 304 (October 11, 2019).

Record keeping played a critical role as the Superior Court relied heavily upon the security logs and documentation of the security team to determine whether the Philadelphia Eagles organization had notice of prior instances of violence occurring in its restrooms during games. Documentation provides objective evidence to the courts and juries which helps to provide them a clearer picture and, in this case, clearly showing a property owner’s lack of notice for third party violence towards its invitees in the restrooms.

If you have any questions or would like more information, please contact Brittany Kurtz at [email protected]