Peak of Thunderstorm Season Approaching

Although we are approaching the start of May, which is the peak month for thunderstorm development, the 2014 thunderstorm season has been off to a historically slow start. One advantage to this inactivity is that the insurance industry benefits from low thunderstorm losses not seen since 2004. In fact, the insurance industry has reported only $780 million of wind and thunderstorm event losses over three events (with two events yet to be estimated), according to Property Claims Service (PCS). This is far below the $4.6 billion in wind and thunderstorm event losses that have occurred on average over the last 10 years.

Not including the tornadoes that have occurred over the last few days as designated in PCS Event #40, the Storm Prediction Center has recorded 109 tornadoes as of April 24 for the 2014 calendar year which, according to BMS’ in-house tornado database from the Storm Prediction Center, indicates that this year is the slowest start to a tornado season in the 62 years of recorded data. Although the recent outbreak of tornadoes will add to the tornado count, the official count will still be in record-low territory. Harold Brooks at the National Severe Storms Laboratory, who has examined nearly 100 years of past tornado records, states that he is “challenged” to find a year that started with less tornado activity than 2014. Of the nearly 100 tornadoes reported this year, only 20 of them had been rated EF1 or higher, with the first EF3 or higher rated tornadoes only recently being recorded with this latest outbreak. This breaks a streak of 159 days, which currently stands as the fourth-longest streak on record between major tornadoes.

Despite the massive tornado that carved a swath of damage across Moore, OK during the 2013 tornado season, overall tornado statistics show that the U.S. has been in a tornado drought since the second half of 2012, with a record low number of tornadoes in 2013. Part of the explanation for the drought in intense tornadoes that has occurred since October 2013 is the persistent dip in the jet stream over the eastern half of the nation. This has unlocked the floodgates for arctic air, essentially shutting down the instability that is needed to develop explosive thunderstorms, which are often fueled by heat and moisture from the Gulf of Mexico.

The long-term forecast suggests much of the same cold will continue across the North Central Plains into the East Coast through the start of May, which should aid in putting a lid on thunderstorm development. But an extremely quiet start to the tornado season guarantees nothing about its future course, since May and June, which average 116 and 60 tornadoes, respectively (based on records from 2003 – 2013 of EF1-rated tornadoes or greater), are usually the two busiest tornado months of the year in the U.S. Despite the historically slow start, when looking at the tornado data recorded since 1953, 37 of the 62 years, or 59%, have started with below-average tornado counts of EF1 or greater. Of the 37 years that started below average, 6 years, or 16%, ended up having an above-average tornado season, The most recent years with slow starts but above-average tornado activity are 2010 and 2004, which resulted in $12.7 billion and $3.5 billion, respectively, in wind and thunderstorm event losses, according to PCS. As we saw with the recent PCS #40 declaration, there will be tornado outbreaks that cause billions of dollars in damages, but a major year like 2011 or 2008 could almost be ruled out and this recent trend should make one rethink the claims of the “new normal” back in 2011.

 

McCall v. United States, So.3d, 2014 WL 959180 (Fla. 2014)…What Next?

McCall v. United States, — So.3d —-, 2014 WL 959180 (Fla. 2014)

This case involves a sad scenario where a young mother died from cardiac arrest due to excessive blood loss following the birth of her son.  The US District Court for the Northern District of Florida found the defendant medical practitioners liable and awarded the surviving petitioners $980,462.40 in economic damages and $2,000,000 in noneconomic damages.  The district court capped the noneconomic award to $1,000,000, pursuant to Florida statute §766.118.  Florida Statute §766.118 provides for limitations on noneconomic damages stemming from medical negligence actions.  Full text of this section can be viewed at http://www.flsenate.gov/laws/statutes/2011/766.118. The plaintiffs appealed to the Eleventh Circuit Court which certified four questions to the Florida Supreme Court.  The Florida Supreme Court answered the first question as rephrased below in the affirmative and declined to answer the other three.

DOES THE STATUTORY CAP ON WRONGFUL DEATH NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION?

The court applied the rational basis test and determined that section 766.118 violated the Equal Protection Clause of the Florida Constitution.  According to precedent established by the Florida Supreme Court, to pass the rational basis test, the statute being challenged must serve a legitimate governmental purpose and it must be reasonable for the legislature to believe that the challenged classification would promote that purpose.  The court concluded that “The statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims. Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.” (Opinion page 9, paragraph 2)

As previously noted, this case involves the death of a patient with three claimants seeking redress under the wrongful death statute.  So, what if the patient lives?  What if there is only one claimant?  How does the McCall opinion impact application of the cap in those instances?

The Court rephrased the first certified question to specify wrongful death economic damages rather than the more general noneconomic damages as originally stated.  The Court goes on to state in the statutory provision section of the opinion that at issue is Florida’s statutory cap on wrongful death noneconomic damages in medical negligence actions as articulated in section §766.118.  Footnote 2 further states that the legal analysis for personal injury damages and wrongful death damages are not the same and that the analysis on the present case is exclusively related to wrongful death.  These statements, collectively, would appear to limit the influence of the opinion to strictly wrongful death actions involving multiple claimants.

We know from reading the opinion that wrongful death remedies are made available through the Florida Wrongful Death Statute §768.16-768.26 and remedies for personal injuries resulting from tortious activity are derived from common law.  However, Florida Statute § 766.118(2-6) does not appear to differentiate causes of action for personal injury from wrongful death when determining applicable caps for noneconomic damages.  There are four parts Application of the caps under sub parts (a) and (b) stem from causes of action for personal injury or wrongful death.  Further, noneconomic damages are not distinguished by causes of action for personal injury or wrongful death.  §766.202(8) defines “noneconomic damages” to the extent the claimant is entitled to recover under general law, including the Wrongful Death Act.

It is difficult to predict how future cases will be evaluated by the Court.  While the Court makes it clear that the conclusion in McCall applies only to application of noneconomic caps in wrongful death actions, the structure of the statute doesn’t appear to specifically delineate application between wrongful death actions and person injury actions.  Further, expansive research provided in the opinion suggesting that if Florida ever had a medical malpractice crisis, it is over, seems to undermine § 766.118 in its entirety under the rational basis test for analyzing the right of equal protection under Article I, Section 2 of the Florida Constitution.

 

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