Hit and Run Accidents

A motorist involved in a vehicular accident is required to stop and assist injured persons. He should also provide his insurance information to the other driver. In hit and run accidents, the hit and run driver usually fails to stop because he is an uninsured motorist (UM) or his insurance is nullified by his tortious or criminal actions.

Most UM statutes require that hit and run coverage be provided in automobile policies. Even in the absence of such a statute, however, most insurers provide such coverage.

Proof of accident

There is always the potential for fraud when an insured seeks to recover under his policy for UM benefits arising from a hit and run accident. For example, the insured may have actually been involved in a one-car crash caused by his own negligence, yet he seeks to recover under the UM provision of his insurance policy. Therefore, statutes may require some corroboration of the accident, such as by evidence of damage to the vehicle, statements made by the insured to others regarding the accident, prompt notice of the accident to the police, and reasonable notice to the insurer (usually within 30 days). The burden of proving that the accident involved a hit and run driver is upon the insured.

Requirement of contact

A statute or the insurance policy may require that hit and run coverage only applies to situations where physical contact has occurred in order to reduce the potential for fraudulent claims. Some jurisdictions hold such contact provisions to be valid, while other jurisdictions do not. In addition, some jurisdictions require that the contact come from the offending vehicle, while others permit indirect contact. Such indirect contact may include situations where the contact comes from a different vehicle forced by the offending vehicle to collide with the insured’s vehicle, where the offending vehicle forces the insured’s vehicle off the road, where an object protruding from the offending vehicle comes in contact with the insured’s vehicle, or where the offending vehicle causes an object (e.g., a rock) to strike the insured’s vehicle.

Even if a statute or the insurance policy does require contact, the insured may not have to prove contact if he can establish either the identity of the hit and run driver or that the offending vehicle was uninsured.

Denial of Claims

An insurer may deny a claim for a loss made by an insured in certain circumstances. However, the insurer must follow certain standards and guidelines when making such a denial.

Reasonable basis
An insurer must have a reasonable basis for its denial of an insured’s claim. This requirement is based on the principle that parties to a contract must exercise good faith and fair dealing with respect to each other so as not to injure the right of the other to receive the benefits of the contract. If the insurer denies the claim without proper cause, a court may find that it acted in bad faith. The consequences of such a finding may include breach of contract or tort damages to the insured. Some courts, however, find that an insurer does not act in bad faith unless it acts intentionally.

The insurer may show that it had a reasonable basis for its denial if it completed a thorough and impartial investigation of the claim and determined all the grounds for denial. Some courts also require the insurer to make a showing that it reconsidered its decision to deny a claim. Additionally, the insurer’s consideration of all information that would be reasonable to consider may indicate that it acted reasonably. An example of a reasonable basis for denial may be that the insured failed to comply with many of the insurer’s requirements for filing a claim and proof of loss.

Denial letter

In addition to having a reasonable basis for its denial of an insured’s claim, an insurer must make the actual denial properly. It must follow its own procedures as outlined in the policy for giving notice of the denial. Such procedures will include sending a denial letter to the insured. The letter should be factual, respectful of the insured, and fully explanatory of the reasons for the denial. In addition, the letter should invite the insured to present further proof if he disagrees with the denial.

The Workers’ Compensation Exclusion in the Comprehensive General Liability Policy

A business may purchase a comprehensive general liability or CGL policy to provide insurance against liabilities of the business for personal injury or property damage suffered by third parties and caused by the business. The usual form CGL policy has numerous exclusions, including Exclusion D — Workers Compensation and Other Laws.

Exclusion D applies to “any obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law.” Such obligations are not insured against with a comprehensive general liability policy. Thus, to obtain insurance protection against the costs of liability arising under workers’ compensation and similar laws, a business must purchase coverage in addition to comprehensive general liability coverage.

In most states, such additional coverage for workers’ compensation is required. There is a trade-off for the additional coverage requirement in the limitation in workers’ compensation laws on claims against employers for pain and suffering and other common law causes of action and in the setting of limits for lost wages.

Local and state laws may impose obligations on businesses such as workers’ compensation laws to protect employees without regard to whether the business is responsible for an injury to the employee. Businesses should note that “similar law” refers to more than workers’ compensation and occupational disease laws designed to protect workers from the effects of on the job injuries. The phrase “similar law” refers also to laws that protect employees who suffer injury away from work but become disabled and unable to continue their employment.

Federal Volunteer Protection Act — Punitive and Noneconomic Damages

Punitive Damages

The federal Volunteer Protection Act (VPA) limits punitive damage awards against volunteers in cases in which they are not immune from liability. The VPA provides that punitive damages may not be awarded against a volunteer in a case in which he has harmed a person while performing services for a nonprofit organization or governmental entity, unless the plaintiff establishes by clear and convincing evidence that the harm was caused by:

(1) the volunteer’s willful or criminal misconduct; or

(2) his conscious and flagrant indifference to the rights or safety of the person who was harmed.

Therefore, in order to recover punitive damages against a volunteer, a plaintiff must prove that the volunteer was guilty of willful or criminal misconduct or a conscious and flagrant indifference to the rights or safety of the person who was harmed.

Noneconomic Damages

The VPA provides that a volunteer is liable only for his percentage of the responsibility for any noneconomic damages. Noneconomic damages may include damages for a plaintiff’s pain and suffering, disfigurement, loss of enjoyment of life, and loss of consortium.

Liability of Airport Owners and Operators

Transportation Law: Air Transportation: Airports & Airways

Most airports are owned by state governmental units or state political subdivisions, such as cities, counties, or airport districts. Governmental units or political subdivisions are generally not liable for torts that result from the performance of a governmental function. Governmental units or political subdivisions are only liable for torts that result from the performance of a proprietary function.

The maintenance and operation of an airport by a city, county, or other public agency is considered in most states to be a governmental function. Therefore, when an airport is owned by a governmental unit, the airport is generally immune from liability in tort or negligence actions that may be brought by passengers, by visitors, or by persons on the ground.

If an airport is owned by a governmental unit and is not immune from liability for a tort or a negligence action that may be brought by passengers or by persons on the ground, the passengers or the persons on the ground may be limited as to the amount they can recover from the airport under state tort claims acts. Most state tort claims acts limit liability for personal injuries or for property damage to a specific dollar amount. Most state tort claims acts do not allow punitive damages. Plaintiffs seeking damages under state tort claims acts are required to present written notice of their claims against the governmental units within a certain number of days after their claims arise.

If an airport is owned by a private person or a private entity, the airport is not immune from liability for personal injury or property damage that occurs as a result of the operations of the airport. Owners and operators of airports owe a duty of ordinary care in the operation and maintenance of the premises of the airports. When the owners or operators park or store airplanes, the owners or the operators have a duty to use ordinary care in preventing damage to the airplanes.

The Federal Aviation Administration (FAA) is responsible for certifying airports that serve airplanes that have a seating capacity of more than 30 passengers. The FAA requires airport owners and operators to prepare airport operations manuals. Such manuals usually contain standards of conduct, which standards govern the operation of the airport and set forth the procedures that are to be followed in the event of personal injury or property damage on an airport’s premises.

Duty of a Correctional Facility to Prevent Suicide

Duty to Prevent Suicide

Jails, prisons, and other types of correctional or detention facilities have a legal duty to ensure the safety of their inmates. This duty arises because the facility has actual physical custody of and control over its inmates. As part of this duty, the facility has a limited duty to prevent its inmates from committing suicide while in custody.

Foreseeability

The duty to prevent a particular inmate from committing suicide arises when it is reasonably foreseeable that the inmate will attempt to commit suicide. Foreseeability of the risk of suicide will depend on the particular inmate, his behavior while in custody, and the circumstances of his detention. Inmates who are under the influence of alcohol or drugs and inmates who show obvious signs of mental illness or distress may be more likely to commit suicide.

Preventive Measures

In order to prevent suicides, a facility must take certain preventive measures. First, the facility should implement screening procedures designed to identify inmates who pose a risk of suicide. Second, the facility should confiscate personal items (such as belts) with which inmates could injure themselves. Third, the facility should ensure that inmates are regularly monitored by correction officers and that inmates who have been identified as suicide risks are closely monitored.

The Military Claims Act

Governments: Federal Government: Claims By & Against

When a person has died, has sustained injuries, or has sustained property damage as a result of the activities of military personnel or civilians who are employed by the military, the person or his or her representative may be entitled to recover damages from the federal government under the Military Claims Act (MCA). The MCA covers claims for damages that are caused by military personnel or civilians who are acting within the scope of their employment or that are caused by military activities.

The MCA covers claims for damages that are not covered by the Federal Tort Claims Act (FTCA). Unlike the FTCA, the MCA pays for damages that occur worldwide. Also, unlike the FTCA, the MCA only pays damages for circumstances that are specifically included in a military department’s regulations.

The MCA is limited to claims that arise from military personnel or civilians who are acting within the scope of their employment or that are incident to military activities that are noncombatant. Examples of claims regarding noncombatant military activities include claims that result from maneuvers, from bombing exercises, or from aircraft operations. For such type of claims, a person does not need to show that the activities were conducted in a belligerent manner. The person also does not need to show that his or her losses were the result of the conduct of a specific employee.

Certain types of activities are specifically excluded from coverage under the MCA. Those activities include combat activities, enemy actions, certain postal activities, or property damage claims that are based on contract violations. If a claim can be pursued under another federal claims statute, the claim will be exempt under the MCA. Such claims include claims under the FTCA, the Military Personnel and Civilian Employees’ Claims Act, the Foreign Claims Act, and certain admiralty claims.

Certain types of claimants are specifically excluded from coverage under the MCA. Military personnel and civilian employees are not entitled to file an action under the MCA for personal injury or death if the personal injury or death occurred as a result of that person’s military service or employment. Military personnel and civilian employees may be entitled to file claims under the MCA for property damage as long as their claims are not covered by another statute, such as the Military Personnel and Civilian Employees’ Claims Act.

Military personnel and civilian employees are prohibited from filing a claim under the MCA if their claim arose as a result of that person’s own negligence or wrongful acts. If the claim arose in a contributory negligence state, the claim is barred under the MCA. If the claim arose in a comparative negligence state, the claim may not be totally barred. However, the person’s damages will be reduced in accordance with his or her proportionate share of negligence.

Damages for personal injury or death under the MCA include damages for pain and suffering, permanent disability, medical expenses, lost wages, and a loss of earning capacity. Property damages are based on the cost of repairing the property. If the property cannot be repaired, damages are based on the replacement cost of the property less the salvage value of the property.

Under the MCA, a claimant is not entitled to recover attorney’s fees, interest, the cost of preparing his or her claim, or damages for the claimant’s inconvenience.

A claim under the MCA must be filed within two years after a cause of action accrues. However, the two-year statute of limitations may be tolled or suspended during periods of armed conflict.

Tort Action for Failure to Provide Facilities to the Public

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Public Accommodations & Facilities

Under the common law, a person commits a tort when he or she fails to provide a public utility or a public facility to a member of the public. In order to be liable for this tort, the person must have a non-contractual duty to provide the public utility or the public facility to the public. A denial of the public utility or the public facility constitutes a breach of that duty.

If a person has a contractual duty to provide a public utility or a public facility to a member of the public, the person would not be liable in tort. The person would only be liable for a breach of his or her contractual duties. For example, if a person has made a reservation at a hotel, which reservation a hotelkeeper refuses to honor, the hotelkeeper would only be liable for a breach of contract action. If the person did not have a reservation at the hotel and the hotelkeeper refused to provide a hotel room to the person, the hotelkeeper would be liable for a tort action. However, the hotelkeeper’s refusal to provide the hotel room must have been unreasonable.

A person who violates a statute or an ordinance, which statute or ordinance requires the person to provide public facilities, may be liable for a tort action. A violation of a criminal statute may also be grounds for the tort action.

A person who has a duty to provide public facilities is liable for the tort of failure to provide the public facilities. The person’s employees may also be liable for the tort. The person’s employees may be liable for the tort, even if the person is not liable.

Examples of a failure to provide a public utility include a carrier’s refusal to carry goods, to deliver goods, or to carry passengers. Examples also include a utility’s failure to provide telephone, electric, or gas services. Examples of a failure to provide a public facility include a hotel’s wrongful ejection of a guest or the hotel’s refusal to rent a room to the guest or a restaurant’s wrongful ejection of a customer or the restaurant’s refusal to serve the customer.

Although there are federal and state statutes that prohibit discrimination with regard to a public utility or a public facility, such as the Civil Rights Act of 1871, the common law tort of failure to provide a public utility or a public facility may also apply.