NY Adds Law to Regulate Certificates of Insurance

A new Article 5 was added to the NY Insurance Law (L. 2014 Ch. 522) on January 29. Its aim is to crack down on abuse of certificates of insurance. It codifies the long-standing judicial precedents holding that a COI does not change the insurance policy. It expressly forbids persons, businesses and government agencies from demanding, and brokers or insurers from providing, certificates that contain terms, or refer to agreements, extraneous to a property or casualty policy.  It  limits the forms that can be used, but ACORD and ISO forms remain acceptable. In his approval memo, the Governor noted that there are technical errors in the text which he expects will be amended in the coming session.


AZ APP 1: UCATA Trumps Learned Intermediary Defense in RX Drug Case

The Arizona Court of Appeals, Division One, held that Arizona’s enactment of the Uniform Contribution Among Tortfeasors Act (A.R.S. § 12-2501 et seq.) is incompatible with application of the common law learned intermediary doctrine to prescription drug cases. The case involved prescriptions for the acne medicine Solodyn.

According to the decision, the medicine was prescribed for consecutive 20 week periods, despite the manufacturer’s recommendation for a maximum of 12 weeks. The PDR information warned of complications, including autoimmune disorders, which were not reflected in the consumer-friendly materials that the patient received from the pharmacy. The patient wound up with autoimmune hepatitis and lupus.

The Court of Appeals reversed the Superior Court’s dismissal of the case against the drug manufacturer. The court held that in the context of prescriptions drugs, the learned intermediary doctrine was not viable in view of UCATA’s requirement that each tortfeasor must be individually responsible for its own contribution to the plaintiff’s injury. The court also took notice of big pharma’s heavy reliance on direct to consumer advertising, and concluded that “a physician no longer is necessarily the consumer’s sole source of information” about prescribed drugs.

On the procedural front, the court held that the plaintiff’s Rule 59 motion extended her time to appeal, even though the judgment arose from a dismissal on the pleadings, and not a trial. The court also held that the plaintiff’s failure to make specific reference to the underlying judgment in her notice of appeal, filed after the decision on the Rule 59 motion, was not fatal to obtaining review of all issues. The court emphasized that there was no prejudice or surprise to the defendant, and that “society’s interest in adjudicating appeals on the merits should govern ”.

Watts v. Medicis