Legal decisions set many precedents for the insurance industry, but frequently those decisions lag behind what’s occurring in the real world. A prime example involves the legalized use of marijuana. Approved for
medical use in 23 states and recreational use in a handful, the federal government
has yet to legalize the use, growth or sale of marijuana.
For many employers who have a zero-tolerance policy on controlled
substances, the legalized use of marijuana (even if it is on the employee’s
personal time) presents some complex issues. As we go to press, the Colorado
Supreme Court has upheld the findings of two lower courts in a case involving
the use of medical marijuana by an employee who needed it to cope with
spasms and seizures related to his quadriplegia.
The unanimous ruling by six justices (a seventh judge had to recuse herself
because a family member was involved in a lower court ruling) found that under
Colorado’s “lawful activities statute” the term “lawful” could only be applied to
“those activities that are lawful under both state and federal law.” Since there are
no protections for such use under federal law, the judges affirmed the previous
rulings in the case of Coats v. Dish Network. (This case is cited in our feature on
“ 4 Burning Questions About Medical Marijuana.”)
The long-term ramifications of this decision have yet to be seen, but the case
has been watched very carefully by employers because it could set an important
legal precedent for how similar cases are handled in the future.
For insurers, the determining factor for coverage has always been whether or
not the covered event was illegal under federal law (see “Marijuana: An Emerging
Coverage Risk” from the March 2015 issue). This ruling by the Colorado Supreme
Court will further help to validate that position.
This month we’re taking a look at a number of issues that can impact how
claims and any ensuing legal cases are decided. Our cover story examines how
information gleaned from behind the privacy walls of social media accounts can
be used in court. Like cases involving legalized marijuana, there are very few
legal precedents in this emerging area.
We also look at the “deep pocket bias” that sometimes emerges when a large
company with significant financial resources is involved in a lawsuit — they can
become an easy target for some claimants.
We’ve added a new legal column, Second Opinion, which will run quarterly
and highlight some of the claims issues involved in different court cases. It’s just
another way we’re trying to keep our readers on the cutting edge of a constantly
Patricia L. Harman, Editor-in-Chief