Automotive Safety on Full Display at the Chicago Auto Show

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In February, my wife and I attended the Chicago Auto Show, mostly out of my fetish for new cars. The show is the largest in North America, and it is the longest running auto expo in North America. Nearly 1,000 vehicles are on display, and hundreds of thousands visit each year. I love auto expos because of the opportunity to experience the newest innovations and varieties our automotive industry has to offer. In the last decade, the industry has truly innovated the way we drive. From the integration of technology, new and pioneering transmissions, increased fuel economy and increased safety, a car manufactured in the last decade is dramatically improved over cars made just ten years ago. See these dramatic before and after ‘poses’ by Buick and Chevrolet.

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Perhaps one of the greatest innovations of the industry is the integration of safety features that used to be available only in the most expensive brands. For example, the 2017 Honda Civic boasts curtain airbags, land departure assistance systems, backup camera, a camera in the mirrors that monitors your blind spot, adaptive cruise control, and an automatic braking system to prevent crashes. The Honda Civic starts at $18,740. The difference in safety features does not proportionally increase when stepping into the Mercedes-Benz S-Class Sedan starting at $96,600.00. While luxury car lines such as Mercedes, BMW, Cadillac, and Volvo innovated many of these safety features, you no longer have to spend big to protect your family. Cars have never been safer.

Products liability claims routinely result from defects in automobiles. We can all recall television stories regarding Takata airbags, General Motors and their faulty ignition switches, rapidly accelerating Toyotas, exploding Pintos, and SUV rollovers. But the great news is, automakers are more focused on safety than ever, and hopefully as a result, products liability claims in the auto industry will decrease.

On a more fun note, automakers are trying their best quench the American thirst for SUV ownership while providing top fuel economy. Several years ago, the introduction of the “crossover” to the American market gave us ‘SUVs’ on a car platform. And since that time, ‘crossovers’ have gotten smaller and smaller and less SUV-like. My wife and I were shopping at the show, looking for an SUV that could house a growing family. What I did not expect is that my wife would fall in love with the new Volvo station wagon. She insists it is not a station wagon. Why? Because Volvo calls it a “crossover.” Much like an American male that resists to the fullest extent possible to purchase a minivan, she cannot bear the label of “station wagon.”

Therefore, I will let the readers decide. Crossover or station wagon?

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New McDonald’s Hot Coffee Lawsuit: Still Trying To Relive the Liebeck Litigation

According to reports, a Michigan man has filed suit against McDonald’s, alleging that he was burned by hot coffee at drive-through. The allegations in the case go a little something like this:

On December 5, 2016, Carl Honeycutt, while a front seat passenger in a vehicle operated by his friend, made his way to a McDonald’s drive-through in Ypsilanti, Michigan. Honeycutt ordered a cup of coffee. The McDonald’s employee handed the cup of coffee to the driver of the car who, in turn, handed the cup to Honeycutt. When Honeycutt took hold of the cup, the cup’s lid popped off and coffee  spilled onto Honeycutt’s chest. As a result, Honeycutt allegedly sustained second-degree burns.

In an interview with M Live, Honeycutt’s attorney, Joshua Cecil, stated that he is was well aware of the infamous Stella Liebeck lawsuit. But does this case really have anything in common with its infamous predecessor? Cecil seems to hope so. Cecil argued that the Liebeck lawsuit prompted McDonald’s to take steps to maintain its coffee at a reasonable temperature, but independent franchisees may not always follow through. Keep in mind, however, that there is no information as to the actual temperature of Honeycutt’s coffee or whether its temperature was outside the bounds of McDonald’s corporate policies. (Also, there is thing we have heard about a time or two that coffee, by its nature, is meant to be served hot).

The lawsuit raises two theories of negligence: (1) failing to secure the lid to the cup and (2) the coffee was served at an “excessive and unreasonable temperature.” The latter clearly paves a way down the Liebeck path. However, Liebeck verdict aside, the former may be the better path to any recovery rather than fight through the 20+ years of rhetoric over whether a company can be held liable for serving a hot product at a hot temperature within industry standards.

Let It Be! Lawsuit Between Beatle Son and Parents of My Cousin Vinny Actress Comes to an End

According to a report from the New York Post, a lawsuit over a rotting tree in Greenwich Village has settled after two years of litigation. You might not think such a case is a big deal. It is true that tree litigation does not normally grace the pages of Abnormal Use. This case, however, is different. Really different. Why, you say? Well,  the litigants just so happen to be the son of a Beatle and the parents of My Cousin Vinny’s Mona Lisa Vito (aka Marissa Tomei).

Back in 2015, Gary and Addie Tomei filed suit against Sean Lennon, the son of John Lennon and Yoko Ono, claiming that a rotting ailanthus tree on Lennon’s property had encroached upon their property, causing damage to their 4000 square foot townhouse (purchased for $9.5 million back in 2008). Specifically, they alleged that the roots of the 60-foot-tall tree cracked their front stoop, broke the iron railings, and encroached upon their basement. The Tomeis sought the removal of the tree plus a hefty $10 million in damages. In a total boss move, Lennon demanded that the Tomeis alter the entrance of their multi-million dollar townhouse to accommodate his encroaching tree.

Now, the lawsuit which pitted litigants associated with two of our favorite things against each other has come to an end. The exact details of the settlement are confidential. However, it is known that the tree at the center of the dispute was cut down last month. To us, it sure sounds like the son of a Beattle lost out to the parent’s of the out-of-work hairdresser.

Wal-Mart’s Venture Into Craft Beer Under Fire

According to a report from the Chicago Tribune, a new class action lawsuit has been filed in Ohio against Wal-Mart, accusing the retail giant of shady beer sales. Specifically, the suit takes issue with Wal-Mart’s sale of its own line of “craft” beer in collaboration with Trouble Brewing. The problem, according to the complaint, is that Trouble Brewing does not really exist. In reality, the Wal-Mart brew is brewed on a contract basis by Genessee Brewing, which is owned by North American Breweries and produces more beer than would warrant the “craft” moniker. Plaintiffs allege that Wal-Mart has created a “wholesale fiction,” placing its beer on the shelves around other legitimate craft beers, to deceive consumers into purchasing craft beer at a higher, inflated price.

So what really is a “craft” beer? The Brewers Association defines a craft brewer as “small, independent, and traditional.” To qualify, a craft brewery must produce less than 6 million barrels of beer annually, be less than 25 percent owned or controlled by a non-craft brewery, and make beer using only traditional or innovative brewing ingredients. While Genessee isn’t Anheuser Busch InBev or MillerCoors, the “Trouble Brewing” brand, assuming the allegations in the complaint are true, certainly doesn’t sound like a “small, independent, and traditional” beer – especially when considering the fact that it is backed by one of the world’s largest companies in Wal-Mart. And, we are guessing Genessee doesn’t offer Trouble Brewing tours and flights of the entire Trouble Brewing line over a game of cornhole.

It should be noted that the Trouble Brewing beers do not specifically identify themselves as “craft” on their packaging. However, as a senior buyer for Wal-Mart told the Chicago Tribune in an interview, “We were intentional about designing a package that conveyed a look and feel you’d expect of craft beer.” If only catchy packaging were all it took to make a craft beer.

As avid beer drinkers, we are certainly sensitive to craft beer deception. As such, we can empathize with the plaintiffs on this ground. As defense lawyers, though, we must assert assumption of risk as an affirmative defense. Something about Wal-Mart and the purchase of craft beer just doesn’t sound right in the first place. With so many craft breweries, growler stations, and local bottle shoppes popping up on every street corner, it has never been easier to pick up a craft brew. Wal-Mart certainly isn’t the place we would think of when it comes to trying out a new beer.

Virtual Reality Headsets: Fun New Toy Or Liability Nightmare?

Being a kid at heart, I always hopeful that my Christmas gifts will include a toy. Knowing that to be the case, my parents delivered this year by gifting me a virtual reality headset. Admittedly, I was perplexed when I opened the present. I was aware of the concept – a stereoscopic display and head motion tracking sensors, immersing users in a virtual reality experience – but I did not comprehend the appeal. I assumed the VR experience would have about as much flare as 3D, the first five minutes of fun is outweighed by the doldrums of wearing a pair of ridiculous glasses. But, hey, I got my toy. Why not give it a shot?

Well, I did. Now, I totally understand the VR appeal. Without getting into all of the technical (which I admittedly don’t understand anyways), VR delivers in all of the ways that 3D does not. While 3D movie watching gives added depth of picture and certain effects that “jump out” at the audience, VR puts the user directly into the scene. The problem with 3D alone is that regardless of the effect, the audience is always watching the film on a flat, two-dimensional screen (even if it is a really, really big IMAX screen). VR takes away that limitation, giving the user a full 360 degrees of 3D viewing pleasure.

Technology aside, the biggest draw of VR is the vast array of content. On my first day of use, I cage-dived with great white sharks off the coast of South Africa, walked through the streets of Paris, participated in a fight with the Suicide Squad, and stood in a dinosaur habitat in Jurassic Park – from my living room. Chances are that if there is something you want to see or do, there is probably a virtual experience waiting for you with a VR headset.

As great as the experience has been (and still is), the lawyer in me just had to come out after a few days of use. What are the risks/liabilities of using a VR headset? How are these VR headset manufacturers going to be sued? I am not talking about a slip and fall on the virtual Champ Elysees. But, what are the potential health effects of using VR? The product comes with a long list of warnings both in the box and on-screen upon every startup about dizziness, nausea, not to be used by children under 13, etc. But, something tells me that will not be enough. At this time, the long-term effects of using VR are unknown and could be an issue down the road. Only time will tell.

For now, I am going to continue to enjoy the experience. As with anything in life, we assume moderation if the best course of action. How many adventures do we really need each day anyways?

South Carolina Supreme Court Provides Guidance On Reserving Rights

Today, we here at Abnormal Use take a brief hiatus from the realm of product liability todiscuss a recent decision from the South Carolina Supreme Court which will significantly impact insurers doing business in the state. The case, Harleysville Group Ins. v. Heritage Communities, Inc., et al., No. 2013-001281 (S.C. Jan. 11, 2017), is  a lengthy decision addressesing, for the first time in South Carolina, the content of reservation of rights letters. While the opinion also discusses the time on risk allocation for damages awarded under a general verdict and coverage for punitive damages, it is the discourse on reservation of rights letters that needs closer scrutiny.

As with most significant South Carolina insurance coverage matters in recent times, Harleysville arises out of two construction defect lawsuits. A little background is necessary. The underlying lawsuits involved the construction of two condominium developments constructed between 1997 and 2000. After construction was complete and the units were sold, the purchasers became aware of certain construction deficiencies and filed suit against Heritage Communities (and several subsidiary companies), the entities who developed and constructed the developments.

During the period of construction, the Heritage entities were insured under CGL and excess liability policies issued by Harleysville. Heritage was uninsured after its last policy lapsed in 2001. After receiving notice of the lawsuits, Harleysville agreed to defend the Heritage entities under a reservation of rights. According to the Court, Harleysville’s reservation of rights consisted of “generic states of potential non-coverage” coupled with a cut-and-paste of most of the Harleysville policy language. Nonetheless, Harleysville continued to provide a defense to the Heritage entities through trial. In each case, the jury returned a general verdict in favor of the plaintiffs, awarding both actual and punitive damages. Thereafter, Harleysville filed a declaratory judgment action seeking a declaration that it had no duty to indemnify Heritage for the verdicts. In the alternative, Harleysville sought an allocation of which portion of the juries’ verdicts constituted covered damages and whether those portions were subject to a time on risk allocation.

The declaratory judgment action was referred to a Special Referee. After staying the matter pending the South Carolina Supreme Court’s decision in Crossmann, 717 S.E.2d 589 (2011), the Special Referee determined that Harleysville failed to properly reserve its rights to contest coverage. As such, he found that coverage was triggered under the Harleysville policies because the general verdicts included some covered damages. While the Special Referee presumed that the verdict included certain non-covered damages (e.g. the repair/replacement of faulty workmanship), he determined it would be improper and speculative to allocate the general verdicts. As such, he ordered that the entirety of the actual damages was covered under the Harleysville policies, subject to Harleysville’s time-on-risk. In addition, the Special Referee held that the punitive damages were also covered under the policies. The parties subsequently filed cross-appeals.

The Court began its analysis with a review of Harleysville’s reservation of rights letters. The letters, sent in 2003 and 2004, explained that Harleysville would provide a defense, identified the insured entities and the lawsuit, summarized the allegations, and identified the policy periods for the policies. In addition, the letters contained 9-10 pages of policy provisions, including the insuring agreement, exclusions, and definitions. However, the letters contained no discussion of the various provisions or explanation of why Harleysville was relying on them. Except for the claim for punitive damages, the letters did not specify the particular grounds upon which Harleysville disputed coverage. Finally, the letters advised the insureds of potential uninsured exposure and recommended that the insureds consider retaining personal counsel. Also of note to the Court, the letters did not advise the insureds of the need for an allocation of damages between covered and non-covered losses, nor did they reference any potential conflicts of interest or notify the insureds of Harleysville’s intent to pursue a declaratory judgment action.

The Court affirmed the Special Referee’s finding that Harleysville properly reserved its rights as to punitive damages but failed to properly reserve rights to contest coverage for the general verdict. In doing so, the Court noted that a reservation of rights must provide the insured with sufficient information to understand the reasons the insurer believes the policy may not provide coverage. A generic denial of coverage with a verbatim recitation of all or most of the policy provisions is not sufficient. Instead, the insurer must alert the insured to the potential that coverage may be inapplicable; that conflicts may exist between the insurer and the insured; and that the insured should take steps necessary to protect its potentially uninsured interests.

Having found that Harleysville’s reservation was not sufficient, the Court, relying primarily on case law from other jurisdictions, engaged in a lengthy discourse of the requirements of a proper reservation. Significantly, the Court stated that:

  • A reservation must be unambiguous. (citing World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 695 S.E.2d 6 (Ga. 2010)).
  • Prior to undertaking the defense, the insurer must specify in detail any and all bases upon which it might contest coverage. (citing Desert Ridge Resort LLC v. Occidental Fire & Cas. Co. of N.C., 141 F.Supp.3d 962 (D.Ariz. 2015)).
  • A reservation of rights letter must give fair notice to the insured that the insurer intends to assert defenses to coverage or to pursue a declaratory judgment at a later date. (citing United Nat’l Ins. Co. v. Waterfront N.Y. Realty Corp., 948 F.Supp. 263 (S.D.N.Y. 1996)).
  • Because an insurer has the right to control the litigation, an insurer has a duty to inform the insured of the need for an allocated verdict as to covered and non-covered damages. (citing Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602 (Minn. 2012); Magnum Foods, Inc. v. Cont’l Cas. Co., 36 F.3d 1491 (10th 1994)).

The Court placed significant emphasis on the fact that an insurer has the right to control the defense and, thus, must keep the insured informed of all potential coverage issues to avoid prejudice. In the Court’s view, one of the primary deficits in the Harleysville reservation of rights letters was the lack of notice to the insured of the need for an allocated verdict as between covered and uncovered claims. Unfortunately, the Court does not expressly state who has the burden of actually seeking the allocation. Some of the language in the opinion seems to place the burden on the insured: “…in no way did the letters inform . . . [the insureds] that they should protect their interests by requesting an appropriate verdict.”  Other language, however, seems to place the burden on the insurer: “. . . an insurer typically has the right to control the litigation and is in the best position to see to it that the damages are allocated . . .” If the burden does, in fact, rest with the insurer, this decision should provide strong ammunition in support of an insurer’s  motion to intervene — which, in the past, South Carolina courts have generally disfavored. 

 Based on Harleysville, insurers must exercise special care when issuing reservation of rights letters.  At a minimum, reservation of rights letters should provide unambiguous notice to the insured of the following:

  • the specific issues raised in the underlying litigation or claim giving rise to the coverage dispute, including the particular grounds upon which coverage;
  • any potential conflicts of interest between the insurer and insured;
  • the intent to pursue a declaratory judgment, if applicable, in the event of an adverse jury verdict; and
  • the need to obtain a written explanation of the jury award that identifies the claims or theories of recovery actually proved and the portions of the award attributable to

Failing to provide a sufficiently specific reservation of rights may result in the insurer being precluded from disputing coverage.  With regard to covered and non-covered claims, because the Court has not expressly stated who has the burden of seeking an allocation/clarification from the jury, it is probably more prudent for insurers to take affirmative steps to protect their coverage position absent further guidance from the Court.

(Hat Tip: Jennifer Johnsen).

New Suit Alleges Popeyes Served Up Flesh Eating Screwworms

According to a report from the NY Daily News, Texas woman Karen Goode has filed suit against Popeyes Louisiana Kitchen, alleging that the fast food chain served her a helping of flesh-eating worms. Specifically, Goode alleges that some rice and beans she ordered from a San Antonio location were invaded by Cochcliomyia hominivorax, otherwise known as “New World screwworms.” Of course, Goode unknowingly ingested the worms, and then:

The flesh eating screwworms entered the Plaintiff’s digestive track, laid eggs which embedded in the interior lining of Plaintiff’s small intestines, and when hatched, infested Plaintiff’s body and began to eat Plaintiff alive from inside-out.

In addition to being consumed by flesh-eating worms, Goode also alleges that she injured her neck, shoulders, and arms. She seeks damages in excess of $1 million.

We here at Abnormal Use often write of fast food-related lawsuits. This is the first involving flesh eating screwworms. Nonetheless, the questions are the same. First, assuming the allegations have merit, how did New World screwworms get into the rice? The United States was thought to be free from New World screwworms by the early 1980’s. However, recently, there have been reports of a screwworm outbreak affecting deer in South Florida. However, to our knowledge, human exposure has been rare in recent years.

Second, how did Goode not realize her rice was infested with screwworms? New World screwworms are approximately 8-10 mm in length. While admittedly a bowl of rice can be deceptive when it comes to spotting larvae, the thought of mistaking a grain of Popeyes rice for a screwwworm is troubling. Probably not something Popeyes wants to put in its next advertisement.

But the biggest question facing any food contamination case of this type is how does Goode know that she encountered the screwworm at Popeyes and not something else she ate/came in contact with? Goode’s complaint does not state exactly when she discovered the screwworms, so it is unknown at this point whether Goode actually observed the worms in the rice at any point. If not, Goode may face an uphill battle. Presumably, if Popeyes had an issue, the screwworms would not have been confined to Goode’s meal and this would not be an isolated event. For the love of San Antonio, let’s hope that is the case.

Friday Links

The Slicing Eyeballs music blog has triumphantly returned! Matt Sebastian, its author, has decided to resurrect his famed music website. We here at Abnormal Use were longtime fans, and we’re happy to see the site back in the music blogosphere. Good times!

Did you see that many of Prince’s albums returned to Spotify this past weekend? (But most of the albums by The White Stripes have vanished).

Did anyone listen to the “Stranglers” podcast, which finished its twelve episode season this past week? We have some complicated thoughts on the podcast, which sought to reexamine the investigation into the Boston Strangler murders, but we’re still processing them. We’ll keep you posted on this front. Share your thoughts, too, if you have any!

Our favorite tweet of late comes from #AppellateTwitter.

Abnormal Use At The DRI Product Liability Conference (In Las Vegas)

We here at Abnormal Use have been writing about products liability cases for seven years now. Can you believe that? So, it may not surprise you, dear readers, that we will be attending the 2017 DRI Product Liability Conference this week in Las Vegas, Nevada. As you may suspect, we here at the blog and at Gallivan, White, & Boyd, P.A. are big fans of DRI and remain very active in that organization. (John Cuttino, one of our partners in Columbia, is the president of DRI!). Our editor, Jim Dedman, will be at this week’s products liability conference. If you see him, please introduce yourself. He may even have with him some snazzy promotional materials we created in support of our blogging efforts.

If Jim follows tradition, he will be live tweeting at least some portions of the conference. You can follow him either at his personal Twitter account, @JimDedman, or our firm’s official Twitter account, @GWBLawFirm. If you yourself are on Twitter (and surely you must be), please check it out and send us a note.

Friday Links

Of late, we have been listening to the Stranglers podcast, which recounts and reopens the investigation into the Boston Strangler case. It’s not unlike Serial, but it is different. We’re always looking for new podcasts, by the way, so if you have any recommendations, let us know.

Anyone at NCBA headquarters in Cary today for the “Post-Judgment Collections” CLE?

Our legal tweet of the week addresses the issue of service by email – a perilous topic indeed. We’re not always fans of service by email, but we understand this tweet.