The year 2020 upended nearly every aspect of society and affected our personal and professional lives due to the novel coronavirus (“COVID-19”). No business industry was immune to COVID-19’s impact as a significant number of businesses moved employees to remote work, furloughed employees, or laid off employees entirely. As the job market recovers and strategies to combat COVID-19 develop, including testing and vaccines, employers are transitioning employees back to commercial office spaces. In doing so, however, each employer must consider the effect COVID-19 may have on in-person work and must realize that it may need to accommodate various employees due to legitimate health or religious concerns associated with COVID-19 or the vaccines associated with the virus.

AT-RISK EMPLOYEES, COVID-19, AND POTENTIAL REASONABLE ACCOMMODATIONS FOR IN-PERSON WORK

Generally, at-risk individuals for COVID-19 are classified by the Center for Disease Control as individuals with immunocompromised diseases or conditions such as diabetes, high-blood pressure, obesity, cystic fibrosis, and liver disease. “At-risk” individuals also include those with a high risk mental condition, such as depression and anxiety brought on by COVID-19. Though the Equal Employment Opportunity Commission (“EEOC”), one of the leading federal workplace discrimination enforcement agencies, has not commented on whether contracting COVID-19 qualifies as a “disability,” various state and local laws broadly construe what is defined as a “disability” which would likely include COVID-19.[1] As such, an individual at high risk for COVID-19, or someone who has already contracted COVID-19, could qualify as disabled and require reasonable accommodations if an employer requires the individual to return to work.

Under 42 U.S.C. § 12102(1)(A) (Equal Opportunity for Individuals with Disabilities), federal law provides that an individual is entitled to a reasonable accommodation at his or her place of employment if he or she has a “disability” defined as a physical or mental impairment that “substantially limits” a major life activity and that impairment is not transitory or minor. Though COVID-19 is not specifically referenced in section 12102, an employer must likely make a good-faith effort to “reasonably accommodate” the impacted employee under section 12102’s broad “disability” definition. To the extent that individuals who are at high risk for COVID-19 or who have contracted COVID-19 and are entitled to reasonable accommodations, examples of these accommodations may include telework, modified work schedules, job restructuring, and greater accessibility to work facilities (i.e. spaced out work spaces). 42 U.S.C. § 12111 (9); 19 C.F.R. § 1630.2(0)(2). Although teleworking became the norm due to the pandemic, it is not currently a required reasonable accommodation by the EEOC. However, this is likely to change as multiple states have confronted civil suits by terminated employees who opted for remote work due to health concerns associated with contracting COVID-19. EEOC v. Gentiva Health Services, Inc., No. 1:20-cv-03936 (N.D. Ga. Sept. 22, 2020); Peeples v. Clinical Support Options, 2020 U.S. Dist. LEXIS 169167 (D. Mass. Sept. 16, 2020). If an employer reasonably accommodates its employees affected by COVID-19 by allowing them to work remotely, an employer should also protect its own interests and request its employees execute a teleworking agreement that includes set standards on timekeeping, availability during the work day, work location for tax purposes, and an employer’s right to require periodic in-person reporting to a worksite. In short, an employer should strike a balance to accommodate an impacted employee which will insulate it from potential liability and also ensure the impacted employee conforms to the employer’s work policies and procedures as practically as possible.

VACCINES, TESTING AND RETURING TO THE OFFICE

Can an employer mandate an employee get vaccinated before returning to the workplace? Yes, but it must make a reasonable accommodation for those who refuse the vaccine even if mandated by federal or state government.

Understandably, the most critical question for employers as they transition to in-person working is whether they can obligate employees to receive a COVID-19 vaccine before returning to work. On December 16, 2020, the EEOC issued a technical assistance publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” [2] Based on the EEOC’s guidance, employers can mandate vaccination without any showing that it is required and necessary for employment and can require proof of vaccination before employees are allowed to return to work. This gives significant power to an employer to place requirements on an employee’s return to work and insulates the employer from possible liability for vaccine mandates before returning to work.

More recently, effective June 17, 2021, the Division of Occupational Safety and Health in California (“CAL OSHA”) enacted new regulations for return to workplaces and employer requirements. In summary, CAL OSHA’s regulations require employers to document that employees are fully vaccinated and the regulations further instruct that employers can accept a self-attestation as proof of vaccination. Vaccinated employees do not have to maintain social distancing and can shed masks indoors or outdoors (subject to local or county mask mandate policies). On the other hand, unvaccinated employees must still wear face coverings indoors and maintain social distancing. The new regulations also place additional burdens on employers to provide masks to employees upon request, provide free testing in the event of a workplace COVID-19 outbreak, and temporarily exclude employees from the workplace if they experience COVID-19 symptoms, regardless of vaccination status.[3] Similarly, President Joe Biden also announced that all businesses, public or private with more than 100 employees, must ensure that employees are vaccinated or provide weekly testing to unvaccinated employees, though this is being challenged in federal court.[4]  As such, employers should be prepared to document its employees’ vaccination status or provide weekly testing to unvaccinated individuals.

In general, an employee is not obligated to get vaccinated even if his or her employer mandates vaccination as part of its return to work policies. Under EEOC protections, if an employee refuses the vaccine, an employer cannot retaliate or single out the employee and must ensure that the employee is not subject to adverse working conditions for refusing the vaccine.  See 29 C.F.R. § 1630 et seq.; Ruggiero v. Mount Nittany Medical Center, 736 Fed. Appx. 35 (3d Cir. 2018). The employer should first make a “reasonable accommodation” for the employee in the workplace, such as a modified work schedule, altering their workspace, or offering remote work. If the employer determines a reasonable accommodation within the physical work space would constitute an “undue hardship” on the employer’s business and the employee’s presence in the workplace constitutes a “direct threat”, then the employer may exclude the employee from the workplace altogether and instead offer the employee a remote work accommodation. The employer must make the following showing to demonstrate the employee constitutes a “direct threat:” (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 42 U.S.C. § 12111.

It is important to note that even if an employer determines that the employee’s presence in the workplace constitutes a direct threat, the employer may not immediately terminate the employee; it can only exclude the employee from the workplace. This determination would generally lead most employers to offer remote work as a means of “exclusion” from the workplace; however, for some industries remote work is not feasible. After exhausting all viable accommodation options, and after the employer carefully considers the employee’s rights under federal, state or local laws, such as providing medical leave or temporary disability, the employer may then determine if termination is the appropriate final step to end the employment relationship.

CONCLUSION

Employers must take precautions when their employees return to the workplace in the wake of COVID-19. While new federal and state guidelines mandate vaccines or weekly testing, employers must honor an individual employee’s decision to refuse the vaccine, for medical based reasons or for religious reasons, and try to reasonably accommodate that employee. Employers should consider a variety of reasonable accommodations, such as remote work/teleworking, modified work schedules and changes to its physical workspace before deciding whether it is necessary to take exclusionary action against the subject employee.  In the event that an employer cannot reasonably accommodate an employee and if the employer determines the employee is a “direct threat” to the workplace, then it may exclude, but not immediately terminate the employee. Though an employer may have grounds to ultimately terminate an employee for refusing the COVID-19 vaccine, it must exercise extreme caution in view of protections offered by federal, state, and/or local laws before terminating the employee. It is critical that employers implement coherent return-to-work policies that include well-defined vaccination protocols, indoor social distancing requirements, policies that clearly articulate reasonable accommodations for employees impacted by COVID-19 and for unvaccinated employees.

[1] Various localities in New Jersey, Pennsylvania, New York have issued protections that actual or perceived infection with COVID-19 is a protected disability, while COVID-19 could likely qualify as a disability under a state’s expansive definition.

[2] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[3] For various state COVID-19 “return-to-work guidance,” please see: https://crownworkspace.com/us/knowledge-base/us-state-by-state-return-to-work-covid-19-guidelines-and-employer-resources/

[4] https://www.whitehouse.gov/covidplan/

Last year, the American Transportation Research Institute (ATRI) published a comprehensive analysis on the notable increase in verdicts over $1 million in the trucking industry. ATRI’s 2020 study, Understanding the Impact of Nuclear Verdicts on the Trucking Industry, received significant attention, ultimately prompting ATRI to investigate verdicts and settlements in the trucking industry under $1 million.[1] As such, last month, the ATRI published The Impact of Small Verdicts and Settlements on the Trucking Industry.[2] Unlike the sensational multi-million dollar nuclear verdicts, these “smaller” payouts seemingly have little effect on motor carriers and insurance agencies. However, there is a general consensus in the trucking industry that small settlements and verdicts are increasing in both frequency and severity.

ATRI’s research focused on: (1) identifying the legal conditions that cultivate the small litigation cases in the trucking industry; (2) assessing the relationship between small payouts and increasing insurance rates; (3) quantifying the impact of crash characteristics and litigation factors on payment size; and (4) quantifying the impact of crash characteristics and litigation factors on settlement timing.[3] In advancing these four objectives, ATRI analyzed litigation data from 641 cases, over the course of 14 years.[4] Notably, the study only considered data from cases involving some form of litigation; the data did not include pre-suit settlements.[5]

The Impact of Small Verdicts and Settlements on the Trucking Industry provides key insight into the current climate of the trucking industry while also anticipating future trends in trucking litigation. The report contains several noteworthy conclusions. For instance, the study showed that settlements in trucking cases were approximately 37.7% larger than verdicts.[6] The type of injury also affected whether a case settled or resulted in a verdict. Cases involving a fatality were 393% more likely to settle and cases with a severe injury were 217% more likely to settle than reach a jury.[7]

Furthermore, ATRI’s investigation into how alleged driver infractions affected smaller payouts reinforces the importance of carrier safety practice.[8] Alleged driver infractions that resulted in the largest payouts did not uniformly relate to the accident giving rise to a plaintiff’s claim.[9] ATRI noted that “[p]oor driver history and other alleged carrier infractions can prove especially costly because they spark additional jury sympathy on the basis of corporate ethics and culture.”[10] The data also connected poor driver history with poor hiring practices, inadequate training, and vicarious liability.[11] This correlation reinforces the importance of motor carrier oversight through programs like driver onboarding and training programs to reduce payouts.[12]

ATRI also discussed how the venue of a particular case affected the payout value of smaller claims.[13] Data from states including California, New Jersey, and Michigan (all deemed “judicial hellholes”) revealed average payments significantly above the national average.[14] For example, California had an estimated average payment amount of $588,231, or 56.1% above the national average.[15] Interestingly, ATRI identified one state, Tennessee, with predicted lower than average payments.[16] In making this distinction, ATRI noted that between 2011 and 2013, Tennessee enacted limits on noneconomic and punitive damages awarded to plaintiffs and further restrictions on attorney advertising.[17]

In light of the conclusions reached in the ATRI report, it is no surprise that lawsuit abuse reform is of growing interest in the transportation field as a way to help curtail the frequency and severity of these smaller payouts. In fact, ATRI ranked “lawsuit abuse reform” as the fourth highest issue of concern in ATRI’s 2021 Critical Issues in the Trucking Industry list – behind only driver shortage, driver retention, and driver compensation.[18] In an effort to address lawsuit abuse concerns, ATRI proposed advocating for the elimination of phantom medical damages and educating motor carriers and law enforcement on the identification of staged accidents.

Indeed, some states have already advanced trucking lawsuit abuse reform initiatives in 2021. For example, in June 2021, Texas Governor Greg Abbott signed House Bill 19 into law.[19] This legislation intends to level the litigation playing field for truckers through a variety of initiatives, such as widening the admissibility of photographs and videos of a vehicle involved in a collision. The Bill also includes a provision bifurcating accident trials, specifying that the first phase of a trial involves evidence of fault, while the second phase determines allegations of unsafe motor carrier safety practices. Put another way, under the new Texas law, a court must first find a driver liable before a case can be brought against the motor carrier that employs that driver. Similarly, the Iowa legislature has introduced a series of lawsuit abuse reform bills, one of which would limit recovery of noneconomic damages for personal injury or death in civil cases to $1 million for commercial motor vehicle owners in the case of an employee’s negligence.[20] Moving into 2022, we should expect to see more tort reform bills aimed at curtailing both the frequency and severity of small settlements and verdicts in the trucking industry.

It is clear that ATRI’s The Impact of Small Verdicts and Settlements on the Trucking Industry illustrates that similar to the multi-million dollar nuclear verdicts, “smaller” payouts also have a significant effect on motor carriers and insurance agencies in the trucking industry. Thankfully, the report provides key insight into the crash characteristics and litigation factors that influence both payment sizes and settlement timing. The report highlights the importance of motor carrier oversight through programs like driver onboarding and training programs to reduce payout amounts. Finally, by comparing trucking litigation payouts between states, ATRI draws attention to a growing focus of the trucking industry: lawsuit abuse reform.

[1] Dan Murray, Nathan Williams & Erin Speltz, Understanding the Impact of Nuclear Verdicts on the Trucking Industry, American Transportation Research Institute (June 2020).  

[2] Claire Evans & Alex Leslie, The Impact of Small Verdicts and Settlements on the Trucking Industry, American Transportation Research Institute (Nov. 2021).

[3] ATRI identified crash characteristics as factors such as the number of vehicles involved in the crash, alleged faults on the part of the driver or motor carrier, and the injuries sustained by the plaintiff. Litigation factors included the presence of expert witnesses, the location of the crash, and whether the case was tried in state or federal court. Id. at 6.

[4] Id. at 10.

[5] Id.

[6] Id. at 32.

[7] Id.

[8] Id. at 18.

[9] Id. at 18.

[10] Id.

[11] Id. at 19.

[12] Id.

[13] Id. at 13.

[14] Id.

[15] Id. at 13-14.

[16] Id. at 14.

[17] Id.

[18] Critical Issues in the Trucking Industry – 2021, American Transportation Research Institute (Oct. 2021).

[19] Tex. H.B. 19, 87th Leg., R.S. (2021).

[20] Iowa S.F. 537, 89th Gen. Assemb. (2021).

Justice Traynor writing for a unanimous, en banc court, ruled that former Town of Newport (“Newport”) Police Chief Michael Capriglione could take office as a Newport Town Commissioner in Capriglione v. State of Delaware, Ex. Rel. Kathleen Jennings, Attorney General, No. 138, 2021 (Del. Oct. 1, 2021).  The Court overruled a Superior Court decision that prevented him from taking office.  The Superior Court ruled Town Commissioner Capriglione was ineligible for the office because his prior conviction for misdemeanor Official Misconduct was an infamous crime under Article II, Sec. 21 of the Delaware Constitution.  The Supreme Court held, however, that “under Section 21, only felonies can be disqualifying ‘infamous’ crimes.

Background

As previously discussed here on April 5, 2021, Newport elected Michael Capriglione to serve as a Commissioner.  Newport has a Council-Manager form of government with five Commissioners forming the town council, including the Mayor.  On May 19, 2018, while serving as Police Chief and on his way to teach a defensive driving course, Mr. Capriglione backed his police car into a parked car in the police department’s parking lot.  A surveillance camera recorded the collision, and Mr. Capriglione later ordered the deletion of the surveillance video capturing the collision.  As a result, a grand jury indicted him, and he eventually pleaded guilty to Careless or Inattentive Driving and Official Misconduct (resulting from the deletion of the surveillance video), both misdemeanor convictions.

The Constitution

The Delaware Constitution provides:

No person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.

The Delaware Supreme Court’s Interpretation

In interpreting this provision, the Supreme Court analyzed the text, historic intent, and precedent.  The Court homed in on two portions of the text.  First, the Court noted that the provision did not include reference to “or misdemeanor,” as the impeachment provision does elsewhere in the Constitution.  Second, the Court noted the delineated crimes were all felonies or punishable by more than one year when the provision was drafted in 1987.  The Court also looked to the convention debates and found that the discussion focused on felonies.  The Court found “the constitutional text and the historical evidence of its understanding strongly suggest that Section 21’s ‘infamous crimes’ bar did not encompass offenses that were not felonies or punishable by more than one year in prison.” However, the Court did not find this dispositive and went on to analyze the existing case law interpreting the provision.

The Court discussed and analyzed numerous decisions from both the Supreme Court and the Superior Court that applied Section 21.  The Court concluded “before this case, Delaware’s Section 21 jurisprudence uniformly indicated that only felonies can be infamous crimes.  And although we have never explicitly announced this rule as a holding, we do so today.”  It is important to note, however, that not all felonies are necessarily infamous crimes.  The Court indicated “the totality of the circumstances” test is still good law in determining whether the felony is an infamous crime, because the section is a “character provision” with a “demanding norm.”[1]

Newly Added Importance

This decision and the Supreme Court’s discussion of the precedents took on added importance on October 11, 2021, when a grand jury indicted Delaware State Auditor Kathleen McGuiness on two felony and three misdemeanor counts.[2]  Auditor McGuiness pleaded not guilty to all charges.  These charges appear to represent the first time a statewide elected official has been indicted on felony charges while in office.

How does this decision impact the State Auditor?

  • First, the decision notes “that Section 21 only applies to final judgements of conviction.” This suggests the State Auditor may remain in office under this provision, while her charges are pending.
  • Second, should the parties seek to resolve the matter with a plea, a guilty plea solely on the misdemeanor charges would be insufficient to invoke Section 21. But a guilty plea or conviction on the felony charges would trigger the totality of the circumstances analysis. Additionally, the theft charge, related to her daughter’s state paychecks allegedly being deposited into a joint account owned by the two of them, could be considered embezzlement under the constitutional provision.
  • Third, this decision could inform analysis of another Delaware Constitutional provision using the term “infamous crime.”[3] The Constitution further provides that “[a]ll public officers shall hold their offices on condition that they behave themselves well. The Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime.”

The potential application of the Supreme Court’s decision to the Auditor’s indictment could become in a moot point if the General Assembly seeks to remove the Auditor under Article III, Section 13 of the Delaware Constitution for “any reasonable cause.”  This provision gives the Governor power to remove an officer from office for any reasonable cause upon a 2/3 vote of both Houses of the General Assembly.  Accordingly, there may be a political resolution to this issue before a resolution of the criminal matter.

[1]   In re Request of the Government (Pupukayi), 950 A.2d 651, 657 (Del. 2008). However, 15 Del. C. § 7555(c)(1) prevents felons from holding municipal offices as a default rules unless a town’s charter says otherwise.

[2]   The charged crimes relate to allegations that the Auditor hired and supervised her daughter, whose state pay checks went into a joint bank account owned by the two of them, and alleged procurement violations for contracts with a political consulting group.  Additionally, she was charged for alleged conduct surveilling the conduct of potential witnesses against her.

[3]   Art. XV, Sec. VI.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On October 1, 2021, the Ninth Circuit Court of Appeals ruled in favor of MG+M client The Boeing Company (“Boeing”) in an appeal of an order that remanded the case to state court. The Ninth Circuit reversed the district court’s remand order and adopted Boeing’s argument that the thirty day removal clock is not triggered until “an amended pleading, motion, order, or other paper” makes the grounds for removal “unequivocally clear and certain.”[1]

The federal officer removal statute is codified at 28 U.S.C. § 1442 and permits removal if: (1) the removing party is a “person”; (2) a causal nexus exists between the plaintiff’s claims and defendant’s actions taken at the direction of a federal officer; and (3) the removing party has a colorable federal defense.[2] 28 U.S.C. § 1446 governs the corresponding procedure for such removal and allows two pathways for perfecting removal:  (1)  if the basis for removal is clear from the initial pleading, the case must be removed within thirty days from receipt of that pleading; or (2)  if the case stated by the initial pleading is not removable, the case must be removed within thirty days of receipt of “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”[3]

In the underlying case, Plaintiff sued Boeing and other defendants in Los Angeles Superior Court, alleging that she developed mesothelioma as a result of exposure to asbestos. Plaintiff’s Complaint failed to state any basis for removal, but Plaintiff later alleged that she was exposed to asbestos through the work her husband allegedly performed on Boeing aircraft while serving in the U.S. Marine Corps, thus triggering federal officer jurisdiction.  Boeing removed the case, pursuant to 28 U.S.C. § 1446(b)(3), within thirty days of ascertaining that the case was removable.[4]  Nevertheless, the district court, relying on its interpretation of Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006), rejected the “unequivocally clear and certain” standard for triggering removal argued by Boeing, and concluded that Boeing’s removal was untimely because it was in possession of “sufficient facts” to justify removal prior to receiving Plaintiff’s amended discovery responses.  Accordingly, the district court granted Plaintiff’s motion to remand and awarded attorneys’ fees to Plaintiff, finding that Boeing’s removal was objectively unreasonable. Boeing appealed.

The Ninth Circuit reversed the district court, finding that Boeing removed the case within thirty days of ascertaining that the case was removable.  Dietrich v. The Boeing Company, et al., No. 19-56409 (Ninth Circuit 2021) at 14.  The Court explained that the district court’s reliance on Durham’s statement that the removal clock begins to run when “sufficient facts” are disclosed was misplaced because it “does not tell us when the facts disclosed” are sufficient.  Id. at 13 (emphasis in original).  Its reliance equated “facts sufficient to allow removal with facts sufficient to require removal.” Id.  (emphasis in original).  To avoid such confusion in the future, and in furtherance of the “bright line” approach announced in Harris v Bankers Life & Cas. Co., 425 .3d 689, 694 (9th Cir. 2005), the Court adopted the “unequivocally clear and certain” standard, thus requiring the basis for removal contained in “an amended pleading, motion, order, or other paper” be unequivocally clear and certain before the removal clock is triggered.[5]

Based on the fact that complaints require only a short and plain statement of the grounds for each claim, a defendant may not have reasonable grounds to remove a case from state to federal court based on a plaintiff’s initial pleading.  As a result, 28 U.S.C. § 1446(b)(3) provides a second pathway for removal where a defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is . . . removable.”  The Ninth Circuit’s adoption of the “unequivocally clear and certain standard” provides clarity to all litigants moving forward with respect to this second pathway for removal by addressing when facts are sufficient to trigger removal, and will “’bring[] certainty and predictability’ . . . ‘avoid[] gamesmanship in pleading,’” and avoid litigation over whether facts were sufficient or the defendant’s investigation was sufficient to trigger removal.  Id. at 12, quoting Harris, 425 .3d 689 at 697.

[1] 28 U.S.C. § 1446(b)(3) states, in pertinent part, that “if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”

[2] 28 U.S.C. § 1442; see Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (citing Jefferson County v. Acker, 527 U.S. 423, 431 (1999)); Mesa v. California, 489 U.S. 121, 124–25, 131–35 (1989).

[3] 28 U.S.C. § 1446(b)(3).

[4] It was not until Plaintiff provided amended responses to discovery, and for the first time confirmed that she alleged asbestos exposure from military aircraft manufactured by Boeing pursuant to government contracts, that Boeing could ascertain that the case was removable.

[5] The Fifth and Tenth Circuits previously adopted the “unequivocally clear and certain” standard.  Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002); Paros Props. LLC v. Colo. Cas. Ins. Co., 835 F.3d 1264, 1269 (10th Cir. 2016).  The Ninth Circuit found that other circuit courts have also used this same standard, if not by the same name.  Id. at 11-12; see Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 75 (1st Cir. 2014) (requiring “a clear statement of the damages sought or . . . [a] paper set[ting] forth sufficient facts from which the amount in controversy can easily be ascertained by the defendant by simple calculation” for removal based on diversity jurisdiction); Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010) (per curiam) (requiring “a paper that explicitly specifies the amount of monetary damages sought” for removal based on diversity jurisdiction); Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 364 (6th Cir. 2015) (requiring “solid and unambiguous information that the case is removable,” which “is akin to actual notice”); Walker v. Trailer Transit, Inc., 727 F.3d 819, 825 (7th Cir. 2013) (requiring “specific and unambiguous notice that the case satisfies federal jurisdictional requirements and therefore is removable”).

On October 1, 2021 Governor Newsom approved Senate Bill Number 447 (“SB 447”) amending the California Code of Civil Procedure to permit damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest. Like many States, in California a cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest. As previously reported by the Defense Litigation Insider in September 2021 here, prior to the enactment of SB 447, California law limited the damages recoverable in such an action or proceeding to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived. Specifically, California law prohibited the recovery of damages for the decedent’s pain, suffering, or disfigurement in that action or proceeding.

SB 447, now codified as California Code of Civil Procedure (“CCP”) Section 377.34 as amended, permits damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest if the action or proceeding was granted a specified preference under CCP Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. The amendment requires plaintiffs recovering under this statute to report their awards to the Judicial Council and the Judicial Council will provide this information to the Legislature. We anticipate that after a period of collecting this data the Legislature will revisit whether to maintain CCP Section 337.34 in its current iteration or consider amendments to same.

The new law goes into effect in January 2022 and reads, as amended, in full as follows:

(a) In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.
(b) Notwithstanding subdivision (a), in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.
(c) A plaintiff who recovers damages pursuant to subdivision (b) between January 1, 2022, and January 1, 2025, inclusive, shall, within 60 days after obtaining a judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages, submit to the Judicial Council a copy of the judgment, consent judgment, or court-approved settlement agreement, along with a cover sheet detailing all of the following information:
(1) The date the action was filed.
(2) The date of the final disposition of the action.
(3) The amount and type of damages awarded, including economic damages and damages for pain, suffering, or disfigurement.
(d) (1) On or before January 1, 2025, the Judicial Council shall transmit to the Legislature a report detailing the information received pursuant to subdivision (c) for all judgements, consent judgements, or court-approved settlement agreements rendered from January 1, 2022, to July 31, 2024, inclusive, in which damages were recovered pursuant to subdivision (b). The report shall comply with Section 9795 of the Government Code.
(2) This subdivision shall become inoperative on January 1, 2029, pursuant to Section 10231.5 of the Government Code.
(e) Nothing in this section alters Section 3333.2 of the Civil Code.
(f) Nothing in this section affects claims brought pursuant to Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code.

Code Civ. Proc., § 377.34 (amendments emphasized).