Monday, December 29, 2008

Ohio's Good Samaritan Law Protects Rescuers....Unlike California's

A recent California decision watered down that state's "good samaritan" law and ruled that a rescuer could potentially be sued for causing injury to an accident victim she was trying to help. Many states, including Ohio, have passed "good samaritan" laws, which protect rescuers from liability for negligence when they attempt to aid accident victims. These laws serve a worthy purpose of encouraging people to come to the aid accident victims without fear of being sued.

This decision was a quirky one, based on a narrow interpretation of California law, and it wrongly ignored the purpose and spirit of the good samaritan law, in my opinion. Fortunately, Ohio's good samaritan law is straightforward and would have protected the rescuer had this happened in Ohio. No matter what is happening with California's law, it should not deter good intentioned people from coming to the aid of accident victims in Ohio.

Saturday, December 27, 2008

The Chamber And Lawsuits--Time To Pull The Plug On This Merry Go Round....

This article by CBS' Andrew Cohen absolutely nails the hypocrisy of the U.S. Chamber Of Commerce and its never ending quest for liability protections for corporate America, even in the face of the worst epidemic of corporate greed, fraud, and scandals in U.S. history. He accurately lays out the Chamber's never ending game plan as follows:

1. Spend billions on ad campaigns and lobbying that pushes for limits on Americans' rights to hold businesses and insurance companies accountable when they harm people;

2. Have every state pass the Chamber's wish list of legal "reforms" that either limit what businesses will pay if held legally accountable, or give them immunity from any lawsuits;

3. Refuse to accept that our mortgage backed economic meltdown, financial pyramid schemes, and millions in job losses was caused in part by the Chambers' platform of "Corporate America needs freedom from lawsuits and excessive regulations to thrive"; and

4. Amazingly, and with a straight face, spend billions more to argue for MORE corporate legal protections or else the economy will suffer further....

Are they serious? You bet. The Chamber's assault on the legal rights of individuals is like mail to the mailman--it just keeps coming, rain or shine, boom or bust.

The Chamber does alot of good things for businesses big and small. But when it comes to the issue of lawsuits and businesses and the cause and effect between them and the economy, the Chamber is like an out of touch DJ playing the same old tunes that nobody really wants to dance to. But if you think otherwise, here's a thought. The true test of any "reform" measure, in my opinon, is: Does it affect everyone equally? Will everybody share in the pain and sacrifice, or just a select few?

Well, guess what? The Chamber's "reform" measures that limit or deny the right to sue don't apply to businesses. Corporations that are harmed are free to bring thousands of lawsuits every year to enforce their rights, with no limits on what they can recover. They can sue each other, or sue you, with impunity. But when it comes to individuals bringing lawsuits against corporate America, now we need "limits" and "boundaries" and "pre-emption" and "immunity."

Colonel Potter from M.A.S.H. had a saying for these euphemisms: "Horse hockey!"
(syn., see "b.s.")

Friday, December 19, 2008

Another Reason For Having Good Uninsured Motorists' Coverage

Now more than ever, you need to make sure you have as much uninsured/underinsured motorists' (UM/UIM) coverage as you can afford to buy. A recent Wall Street Journal article is reporting a dengerous trend: drivers all over the U.S. are cancelling their auto insurance due to the bad economy. In fact, as many as 15% of all U.S. drivers are driving without insurance.

What does this mean to you? If you're injured by an uninsured driver or one with low limits(underinsured), your recovery for your medical bills, lost wages, and physical injuries is now dependent upon the amount of UM/UIM coverage you have with YOUR insurance company. Translation: uninsured driver + bad injuries and lots of bills + low UM/UIM limits with your insurance company ='s you lose, and you're left holding a shoebox full of medical bills that you can't pay.

The absolute mindblowing part of all this is that you can easily double or significantly increase your UM/UIM coverage by hundreds of thousands of dollars--and for as little as approximately $100.00 per year. Our FREE book, "How To Buy Car Insurance In Ohio To Protect Your Family," will teach you what you need to do to make sure you have enough coverage if you're hit by an uninsured or underinsured motorist. Just go to our website and click on the link and it's yours.

Thursday, December 18, 2008

Insurance Company Surveillance: Beware The Van...

Fairfax Virginia personal injury attorney Ben Glass is right on the money in a recent post about insurance companies spying on injured people who've made claims or filed lawsuits. We've witnessed this with our own clients on more than one occasion.

Case in point. A negligent driver pulled out from stop sign into the path of our client, causing significant fractures and numerous surgeries. The insurance company for the negligent driver hired a private investigator (PI) to secretly photograph and videotape our client at work, and outside the home.

Here’s the real creepy part. The PI secretly videoed our client at her home from across the street in a van (always be suspicious of a van parked on the street next to your home for long periods of time). She also followed our client to work, and to restaurants with her friends. We discovered the investigator’s identity, and subpoenaed her entire file, including the tapes. When we took the PI's deposition, we learned that she was unsuccessful in videoing our client doing any strenuous activities, despite many hours of surveillance. We also discovered an e-mail from the insurance adjuster to the investigator giving the following marching orders after the investigator came up empty: “We just really need to get something on ______ asap.” The investigator ended up spying on our client for FOUR MORE MONTHS! The videos revealed so little and were such a bust that the insurance company's attorney didn't even introduce them at trial. But that disn't stop the insurance company from spending thousands of dollars on spying tactics.

This tactic is not uncommon, as creepy as it is. In certain cases, insurance companies will stop at nothing to get out of paying on a claim. Fortunately for our client, this tactic went nowhere, and the jury returned a fair verdict.

Wednesday, December 17, 2008

School Seclusion Rooms? No Liability In Ohio

A recent CNN article highlighted a tragic story about a thirteen year old special needs student who hanged himself in a "school seclusion room" designed to isolate and/or punish him. This "room," more akin to a prison cell, housed this child at least 15 times before he committed suicide.

If something like this happened in Ohio, the school district would enjoy 100% immunity from any liability. Under a 2003 "tort reform" law (lobbied for by insurance companies who insure schools), schools are generally not liable for ANY negligent act. Two exceptions are the negligent operation of a school bus or other school vehicle, and "physical defects" on school grounds--like a collapsing ceiling, for example. And that's about it.

Pretty scary stuff if you think about it. School seclusion rooms? Meet soverign immunity . Translated, it means "the King can do no wrong." But when immunity can breed this much irresponsibility, perhaps its better suited for reality show contestants rather than institutions and their insurance companies that don't deserve it...

Do I Need An Attorney To Handle My Auto Accident Claim?

(The following is an excerpt from my recent book; "Your Ohio Accident...And How To Level Your Playing Field." It is FREE to all Ohioans by visiting our website and clicking on the link to the book).

General answer: Yes, but not always. Sometimes, we will tell potential clients that they can do just as well handling their injury claim on their own as we could do for them if we represented them. But this rule is the exception, and not the rule. Below is an example of practically the ONLY circumstance I can think of where you could conceivably handle your claim on your own.

EXAMPLE: You were rear ended. You went to the local ER (always a good medical idea as a precautionary measure), got treated and released, and waited a few days to see how you felt. You might have been stiff and sore for a few days or a week. You might have even seen your family doctor (also a good idea) just to be checked out. You may have missed a day or two from work, but eventually, you returned to work, and generally got better. No physical therapy, no series of diagnostic tests, or other treatments or bills – a happy ending to an initial nightmare.

If this is your accident scenario, a couple rules come into play. First, you have a limited claim. You’ll eventually be offered your medical bills plus a minimal amount for your pain and aggravation. Some insurance companies even have a name for this: an “inconvenience fee” (notice how your pain has been labeled just an “inconvenience”). Basically, the insurance company is looking to “cash you out.” Definition: in exchange for the small figure they’ve offered you, you sign a “Full Release,” which means your claim is over. If you have any further treatment or bills after you sign, forget it. Signed release = claim is over, unless you were fraudulently tricked into signing it.

This is why some insurance companies will send an adjuster to your house shortly after a collision, and offer to reimburse you immediately for your medical bills, as well as your “inconvenience fee.” By “cashing you out,” they close the books on your claim and limit their exposure.

Second, any competent attorney who would handle a minor or limited claim on your behalf would probably be able to obtain a slightly better offer, but the net recovery to you might be the same as if you handled it yourself, if you factor in the attorneys’ fees.

BOTTOM LINE: If your injuries were minor or brief, did not involve anything but a follow up doctor visit, and you’ve quickly recovered, your claim is minor. You really can’t mess it up if you handle it yourself. I call these claims “no harm, no foul” claims.

To borrow an example, if you were looking to repair or replace a simple light fixture in your home, and you really weren’t sure what you were doing but plowed ahead anyway, you probably wouldn’t burn down the house if your home repair attempt failed. However, if your injury claim involves anything more than a simple doctor's visit, you are at serious risk for messing up your claim, many times without even knowing it.

How do I know this? For over 20 years now my phone has rung with stories of how people either completely ruined or almost ruined their claims. Next week I'll provide some specific examples of how this can happen.

Saturday, December 13, 2008

Debating Tort Reform

This week I participated in a TV debate ( more like some friendly coffee shop talk) on tort reform for "Forum 360" (formerly The Civic Forum of the Air, which has been on the air for over 30 years). Alot of this blog is devoted to this issue and I speak to alot of groups about it and it's always fun to try to share what I see and listen to other viewpoints too. Part of my talk involved all the legislative "reforms" in Ohio medical malpractice and other personal injury lawsuits that (1) have capped or limited your recovery for serious injuries caused by things like blatant medical errors, drunk drivers, and recalled Chinese toys, or (2) have given 100% immunity to negligent parties who really don't deserve it.

People are shocked when I tell them that "tort reform" applies to legitimate cases of serious injuries. Case in point: you're a 25 year old stay at home Mom. You are told you have breast cancer, and undergo a mastectomy, only to be told afterward that you were misdiagnosed (the test was not read properly or your results were mistakenly switched with another woman's), and you never had breast cancer.

The result under Ohio law "reforms?" Your recovery is limited to your medical bills (that you have to repay out of any settlement or verdict) and $500,000. How's that for accountability? Pretty good deal if you're a hospital or doctor or their malpractice insurance company. The response I always get is: "I thought tort reform was just about cracking down on frivolous lawsuits." Wrong--that is how it's SOLD to the public by the insurance industry and the Chamber of Commerce.

A few years ago I gave a talk to a group of local professionals. After it was over, a woman approached me and said: "You know, it comes down to this: crack down on the goofball lawsuits, and leave the legitimate cases alone, because someday it might just be me in that wheelchair." She said more in one sentence than I could in a 20 minute talk.

Wednesday, December 3, 2008

The Briefcase Blog

One of the beauties of a law degree is its versatility. After you graduate, you have alot of options. You can work in big firms, small firms, hang out your own shingle, work for the government in some capacity, practice criminal or civil law, or even teach.

Some of these options are rather ethereal, though. Teaching something as droll as Property Law in law school would for me be the functional equivalent of watching paint dry while being subjected to continuous loop accordian music. Picture a professor wearing a blazer with elbow patches droning on about 18th century property concepts like "feoffment with livery of seisin"--I can't even remember what it means but somehow I still remember the term (sounds like something you'd order in a French restaurant or something Emeril makes on The Food Network"). I'd rather stab myself (repeatedly) with dull letter opener than teach a topic like that.

And then there are guys like Russ Bensing. He has a great blog, The Briefcase, that covers what it's like to practice criminal law in the trenches of our criminal justice system. Real stories from an insider's point of view. No polish or varnish--and no accordian music either! Practicing criminal law is like a 30 mile trip in the fast lane at 80 mph, whereas civil law (my practice) is more the 5 hour ride at 60 mph with the occasional acceleration over the speed limit. Russ's blog gives you a feel for the ride, and the stories alone are worth checking out. You'll have a newfound respect for what a good criminal lawyer goes through (or puts up with) on a day to day basis.

Monday, December 1, 2008


Here’s an all too familiar scenario. Months or years after your divorce, you hand the car keys to your minor child, who negligently wrecks the car and seriously injures another motorist. You promptly turn the claim into your insurer, thinking that your child is covered under your auto policy, only to be shocked that the insurance company denies the claim. And now both you and your child have been sued by the injured driver for thousands in medical bills and lost wages, and you are facing the prospect of personal liability – and possibly bankruptcy.

There are two reasons why the insurance company might deny the claim: your child is not a (1) “named insured” or a (2) “resident relative” under the policy. A "named insured" is a driver specifically listed in the policy. If your child is not a “named insured” listed in the policy, most policies will still provide coverage for “resident relatives” of the household.

But here’s the problem: with flexible parenting arrangements and separation agreements that do not specify “residency” issues, where is your child legally residing? In one parent’s home? Or both? Or even at a third home if time is spent living with grandparents? The question is: is there anything you can do to ensure that your minor children will be covered in a future accident under one or both parents’ insurance policies?

This accident scenario has been frequently litigated. One factor courts have looked at in deciding where a minor is “residing” (for purposes of satisfying the “resident relative” requirement of the insurance policy) is the language of the divorce/dissolution decree or separation agreement. For example, if the agreement provides that the minor “alternately resides with each parent under a custody or separation arrangement,” it may carry persuasive weight as to whether the minor was a resident of one or both homes. Some courts have also recognized that in many divorce situations, a minor may well have a “dual residency” with both parents.

Knowing this, there are two simple and important steps you as a parent can take now, BEFORE AN AUTO ACCIDENT EVER OCCURS, to ensure your children are covered under your auto policy. The first is to contact your agent, in writing, and notify him or her that your child will be driving the vehicle(s) on occasion, and ask that your child be listed or added as a named insured under your policy.

The second is to ask your divorce attorney if your divorce or separation agreement can include language that specifically states that your child will be alternately residing with each parent. These simple steps will greatly reduce or even eliminate any opportunity for your insurance company to deny a claim in the future for insurance policy "residence" technicalities.

As an attorney who represents auto accident victims, the combination of (1) a divorce; (2) a minor causing a serious crash; and (3) litigation over whether the minor was covered as a “resident” under unclear insurance policies or separation agreements, occurs all too often. As you can see, with a little advance planning, the issue could be avoidable.

But if you think that this is not a real problem on your radar screen, I invite you to do two things after reading this post. The next time you’re driving somewhere, take notice of how many young drivers are talking on cell phones or texting while driving. And when you get home, look at how much you’re paying for auto insurance. Either one of these facts just might move you to take action to make sure your policy works to protect your family, given what you’re paying for auto insurance every year!