Donald Trump's Recent Lawsuit Oughta Be Fired...

May must be "corporate frivolous lawsuit month." If it's not, I've just declared it. First, Oprah got sued by Mutual Of Omaha for simply uttering a phrase (an "A ha moment") that Mutual claims is theirs. Now, Donald Trump has apparently sued a reporter for defamation. No, the reporter did not disparage The Donald's personal reputation, lifestyle, or even his hair. The claim: he defamed Trump for writing in an article that Trump was only a "millionaire" rather than a "BILLIONAIRE." Poor guy (pardon the pun).

Seems like the Donald was offended by this...so he sued on behalf of his business empire, claiming that this horrible and false sleight cost him business. Can someone with a grain of common sense please tell me why on earth this lawsuit has not been dismissed? If this were an ordinary citizen bringing this lawsuit, I imagine the Chamber of Commerce and all their tort reform allies would be cutting another commercial railing about yet another "frivolous lawsuit" filed by a parasitic plaintiff and their personal injury lawyer that is clogging our court system. After all, The StarChamber has recently spent millions on its annual "lawsuit abuse" PR campaign (ever notice that the first two letters of propaganda are "PR")?

So why is there no room on the StarChamber's "lawsuit abuse" campaign mantle for this dud of a lawsuit? Perhaps they decided to look the other way because of The Donald's business acumen and celebrity status. But they have no compunction about continuing to parade the McDonald's "hot coffee" case (which is over 15 years old) as the poster child for what's wrong with our legal system. So here's the lesson: if you have millions (or even billions), our legal system is yours to use and fool around with at your whim. But if your a common Jane or Joe who uses the same legal system, suddenly it's a system gone amuck and you're just looking to hold another defenseless business hostage and dupe a jury into returning a "runaway verdict."

This lawsuit oughta be fired.

Reason No 27 Why Your "Full Coverage" Auto Policy Might Be Meaningless

A recent Ohio case illustrates why the term "full coverage auto policy" is a meaningless term. Here's the scenario: you ask your agent to procure a "full coverage auto policy" for you. You think your agent has done this for you. two years after the policy is issued, you're injured by a negligent motorist with minimal liability limits. So you settle your claim with the negligent motorist's insurance company, and then attempt to pursue a "underinsured motorists'claim" against your own insurance company. Definition: a claim brought against your own insurance company when your injuries, medical bills, and lost wages exceed the negligent motorist's liability limits.

Your agent's response: "What underinsured motorists coverage? You rejected this coverage." The agent then produces an office note to the effect that you did not want uninsured/underinsured motorists coverage. Your response: "B.S. I told you I wanted a full coverage policy that included uninsured/underinsured (UM/UIM) motorists' coverage!"

This is what happened in Robson v. Quentin Cadd Agency, 179 Ohio App. 3rd, 2008 Ohio 5309. The injured party-insured sued the agent for negligently failing to procure the "full coverage" policy the insured requested. The trial court dismissed the case, reasoning that the insured had a duty to read the policy, which did not include the UM/UIM coverage.

Thankfully, the court of appeals re-institued the case, and ruled that a jury should determine whether the agent did not properly procure the necessary coverage. But the court of appeals also ruled that the jury should also consider whether the insured was also negligent in not reading the policy, which clearly did not include the UM/UIM coverage the insured thought he was getting.

As a result of this fiasco, the insured has now bought an expensive lawsuit and jury trial over what exactly happened and who bears responsibility for not including the UM/UIM coverage in the policy.

This is EXACTLY the problem with a "full coverage" auto policy. It has a definite meaning to purchasers of insurance ("I'm getting EVERYTHING"), but it has little to no meaning to the insurance industry and agents(it can virtually mean ANYTHING).

Lesson learned: Ask your agent to define, IN WRITING, what exactly is included in a "full coverage" policy. The most important part of your auto coverage is your UM/UIM coverage, which protects YOU if you're hit by an uninsured or underinsured motorist. Make sure any quote from your agent includes this coverage. And make sure your put IN WRITING that you want this coverage. That way, you have left a paper trail as to what you intended to purchase. Otherwise, if the agent fails to obtain this coverage (like the agent did in this case), you're in a standoff of "I said, he said," and then you're talking to an attorney and have just bought a lawsuit with an uncertain outcome. And the last thing you need is a bunch of legal bills piled on the kitchen table next to all the hospital bills...

Oprah's Aha Moment--Corporate Frivolous Lawsuits

Insurance behometh Mutual of Omaha has sued Oprah, claiming she misappropriated the phrase "aha moment" that Mutual has used in its recent commercials. This is an example of one of the most stupid frivolous corporate lawsuits I've seen lately. This is exactly the kind of lawsuit that clogs our legal system and delays legitimate lawsuits.

C'mon folks. Can't something as trivial as Oprah occasionally using a commonly used phrase be worked out short of a federal lawsuit? Perhaps an exchange of a few letters, or their people could "do lunch" over a nice, overpriced green salad (with lots of fruits and nuts with low fat dressing on the side) and solve this pressing legal issue (insert sarcasm here). The hypocrisy of this lawsuit is that business groups and insurance companies love to thrash personal injury lawsuits like the McDonald's "hot coffee" case as the poster child for frivolous lawsuits and why we need legal reform. Funny, but I never hear these same groups rail on stupid CORPORATE frivolous lawsuits.

Here's my "aha moment." Hey Mutual of Omaha, stop whining about Oprah using your little phrase--in fact, her occasionally using it might just be good publicity for you. I liked you a lot better when you were sponsoring "Wild Kingdom." At least the segues were funny ("Jim has stuck his head into the lions' cage. Jim needs protection...Mutual of Omaha offers protection with its life insurance policies..."). There's nothing funny about this dud of a lawsuit.

Making Sure Children Of Divorced Parents Are Covered By Your Auto Policy--An Update

Recently I wrote a post about how to make sure that divorced children were covered under potentially both parents' auto policies in case of an accident. A recent Internet article mentioned the piece and quoted me in the article. Amazing how the tentacles of the Internet seem to spread. It's no wonder that more people are obtaining information on the Internet, and newspapers are struggling...

Physicians Fighting For Rigid Standards In The Courtroom...And Railing Against Them In The Hospital Room

Physicians groups and their insurance companies spent tens of millions in Ohio a few years ago on a PR campaign to push for lawsuit "reform." The result: a rigid, one size fits all cap that limits compensation for your physical pain to as little as $250,000 (a more "generous" $500,000 cap applies if you lost a limb or are paralyzed due to medical malpractice). The reasoning? We needed "uniformity" and "predictability" in jury verdicts, and this would help to make the system more stable for insurers and medical providers.

Trial lawyers responded that these rigid rules strip away a jury's ability to make a community decision as to how a preventable medical mistake uniquely affects an injured patient on an individual basis. Each case, each person is unique, and so is their pain and inability to enjoy life's activities. A jury's job, we said, is to examine how the malpractice affected that particular patient, what the malpractice took away, what the patient fought to get back, throw it all in the mix, and render a community decision. Well, we lost that fight and the medical community won and now we have one size fits all, rigid limits when it comes to compensating patients in Ohio medical malpractice lawsuits.


That's why I found this Wall Street Journal piece fascinating. Apparently there is a movement in Congress to impose new "quality of care" rules on physicians. The premise of this recent movement is that

Health-policy planners define quality as clinical practice that conforms to consensus guidelines written by experts. The guidelines present specific metrics for physicians to meet, thus "quality metrics." Since 2003, the federal government has piloted Medicare projects at more than 260 hospitals to reward physicians and institutions that meet quality metrics. The program is called "pay-for-performance." Many private insurers are following suit with similar incentive programs.

What's more, "physicians who fail to comply with quality guidelines from certain state-based insurers are publicly discredited and their patients required to pay up to three times as much out of pocket to see them." Suddenly, physicians are not too happy with rigid rules when applied to the hospital rooms or the operative suite:

rigid and punitive rules to broadly standardize care for all patients often break down. Human beings are not uniform in their biology. A disease with many effects on multiple organs, like diabetes, acts differently in different people. Medicine is an imperfect science, and its study is also imperfect. Information evolves and changes. Rather than rigidity, flexibility is appropriate in applying evidence from clinical trials. To that end, a good doctor exercises sound clinical judgment by consulting expert guidelines and assessing ongoing research, but then decides what is quality care for the individual patient. And what is best sometimes deviates from the norms.

I think that physicians are mostly right on this issue--to a point. Although there are many accepted practices and protocols for treating and diagnosing conditions, there should be room for flexibility and taking into account the uniqueness of an individual patient's profile or medical history that may not be the "norm."

So why are rigid and uniform rules wonderful in the courtroom when it comes to limiting a patient's recovery in a malpractice lawsuit, and suddenly horrible when it limits doctors' payments as a performance criteria?

A tad hypocritical? Me thinks so.

Ohio School Immunity--No Liability If Your Child Is Sexually Assaulted On A School Bus

There is NO liability in Ohio against a school district if your child is molested, raped, or assaulted on a school bus. It doesn't matter if these school children can't even protect themselves because they're six years old, or are special needs students with a physical or mental disability. This comes courtesy of a March, 2009 Ohio Supreme Court case known as Doe v. Marlington School District.

According to the Court, a school district's liability for the negligent "operation" of a school bus does not include supervision and oversight of the students on the bus. So here's the bottom line: school districts have blanket immunity no matter what happens on the bus, as long as the driver doesn't negligently crash it. If a school child was repeatedly molested or assaulted, and bus driver knew about it, no liability. If parents complained about an injury or assault to their child and the school district did nothing and it happened again, no liability.

So let's review the shameful breadth of the wall of immunity in Ohio for school districts. If your child is raped or molested in the restroom, locker room, gym, bus, or on a field trip, there is immunity--even if the offending school employee was a convicted child molester, as I wrote about here. And if the school district punishes children by repeatedly sending them to a "seclusion room" where they later hang themselves, no liability under Ohio law, as I wrote about here.

This is what our Ohio Legislature has done for the protection of Ohio school children. The Ohio Supreme Court has upheld these laws on more than one occasion. It's disappointing to say the least a civilized society that is supposed to be based upon principles of legal responsibility and accountability for your actions. You've heard of the axiom "let the buyer beware?" For Ohio school children, it's becoming "let the youngsters beware."

Nicodemo and Wilson website: click here

A Thank You To A Certain Attorney TV Advertiser

Recently I settled a case for a client who was injured in a fall at a hospital while recuperating from surgery. After reviewing the extensive medical records, it was my opinion that, due to my client's particular medical history, and some orders that did not appear to be followed, the fall and the injuries sustained were preventable by hospital staff. I filed a lawsuit, took some depositions of the staff involved in his care, and hired a nursing expert to review what happened to cause the fall and determine whether it could have been prevented--all the things that are necessary to pursue a case like this.

We got the case settled for a fair amount shortly before trial. At my initial meeting with the client, he told me that he called two different attorneys/ firms that heavily advertise on TV before he came to see me. The one attorney flatly rejected his case over the phone and the other firm never returned his call. I can't speak for the firm that didn't return the call (maybe someone just didn't get the message on a busy day--it happens to all of us), but I suspect I know why the other attorney rejected his case: it required work and effort.

Hospital fall cases can be tricky. Many falls are preventable and should never happen while others can occur if staff does everything by the book. Each case is different and unique and needs to be evaluated on its own merits. In other words, this case was not a "slam dunk." It had to be reviewed, a lawsuit was required, and a lot of legwork was necessary. I suspect that this attorney recognized all this and decided to pass on the case.

I don't mean to knock all attorneys or firms who advertise on TV. Some firms who advertise have great reputations and produce respectable ads (Canton attorney Allen Schulman comes to mind), while other ads are just plain tastless and embarrasing.

It just goes to show how persons in need of a competent injury attorney or firm really have to cut through the advertising circus and do their homework. In the meantime, I'd like to thank "Mr. TV Advertiser Who Shall Remain Nameless" for rejecting the case. A fair result was reached, and we made a new friend. I guess there's still room for us smaller, non-"high volume" firms. Flying under the radar in a sea of "we'll get huge bucks for you" ads is not such a bad thing...

Delay, Deny, And Low Ball Offers--Top 3 Complaints Against Insurance Companies

A recent report issued by The National Association of Insurance Commissioners reveals the obvious: the most common three complaints consumers had against insurance companies were (1) delaying claims; (2) denying claims; and (3) inadequate settlement offers. In other breaking news, the sun rises in the east and sets in the west.

All kidding aside, these numbers must be put into proper perspective. First, they only involve complaints that were REPORTED to a state's Department Of Insurance (DOI). In other words, somebody had the wherewithall to suspect that the insurance company was treating them unfairly and took the time to report the company to their DOI. So the true incidence of poor treatment is probably vastly underreported.

Secondly, in fairness to the insurance companies, the mere fact that a complaint was reported does not mean that consumers were in fact being treated unfairly. As with any reporting system, some complaints would be legitimate and others would lack merit under any objective criteria.

But I can tell you that the specific top three complaints referenced in the report are not suprising to us. The unholy trinity of delay, denial, and low ball offers made in order to simply "cash out" an injury victim is what makes our phones ring.
And with the advent of dogmatic insurance claims handling procedures based upon computer programs and models that give adjusters little to no discretion in the claims handling process, I don't expect these findings to change any time soon.

High School Cage Fighting? Seriously? Perfectly Fine In Ohio Schools...

Recently I read where Texas officials were investigating a high school whose principal made students who were caught fighting "duke it out" in a cage. It's probably safe to say that principals going "UFC" on students and making them fight as a means of punishment or discipline is harebrained and stupid (at least the UFC, which I am a huge fan of, is highly regulated and extremely safety conscious). If a student got seriously hurt or killed, most people might think that the school district should be liable for negligence in allowing students to fight one another.

Well I'm here to tell you that if this happened in Ohio, no problem whatsoever. Line 'em up, bring the popcorn, and let's "get it on" to quote UFC referee "Big John" McCarthy. No need to worry about any "legalities" here in Ohio. That's because Ohio's "soverign immunity" statutes protect school districts from almost every negligent act, with few exceptions. Here's the general rule of Ohio's soverign immunity law: school districts are NOT liable for negligence--period.

There are basically 5 exceptions to this rule. The first is the negligent operation of school buses and other vehicles. The second is if the activity is a "proprietary" (meaning non-governmental) function. If the activity is a "governmental" function, schools are immune from liability. Under the definitions of these terms, almost every act of a school district is considered a "governmental" function that serves some educational or disciplinary purpose. Example: one Ohio case ruled that the act of high school cheerleading was a "governmental function." I'm not kidding. With that analysis in mind, I'm pretty sure that "cage fighting" might fall into the same category as "cheerleading."

The third exception involves "physical defects" on school grounds. Example: the school ignores a deteriorating ceiling and it falls on Junior's head during math class. The fourth involves negligent maintenance of a "nuisance" and the fifth deals with a violation of a statute that "expressly imposes civil liability" upon a school district. Translation: unless the Ohio Legislature has passed a specific law that says to school districts "if you violate this law you can be sued," there is no liability under this exception. Immunity applies.

Although Ohio recently passed an "anti-hazing" law, something as idiotic as administration sanctioned cage fighting would not be considered "hazing" since it is defined as "doing any act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates a substantial risk of causing mental or physical harm to any person."

So there you have it. Cage fighting fits no exceptions to immunity, and therefore immunity applies. Just another example of "immunity" protecting stupidity. Add it to the list of other shocking examples of immunity for negligence, such as if your child is molested in the bathroom, locker room, or bus by a teacher, cook, janitor, or even a volunteer--even if that person was a convicted child molester.

These extreme examples prove how unbalanced, unfair, and downright scary school immunity laws have become. Protecting our schoolchildren? Forget it. The only thing this law does is protect the insurance companies who insure schools, and who, coincidentally, lobbied for passage of these laws.

AIG Spent Millions Pushing For Lawsuit Reform--Look Who's Getting "Reformed" Now

What goes around truly comes around. Or is it vice versa? You get the point-eventually the bully on the block gets his deserved thrashing.



For over twenty years, AIG has spent millions and millions lobbying for lawsuit or "tort" reform. Definition: laws that place limits or restrictions on what insurance companies have to pay in personal injury lawsuits. CEO Maurice Greenberg funneled millions into "thinktanks," ad campaigns, and lobbying to influence public opinion and pass tort reform legislation. We "trial lawyers" have been painted as the enemy.According to the AIG's of the world, limiting your rights was good for insurance companies, the economy, and American businesses. As Mark Wahlstrom from The Settlement Channel blog points out:

As anyone who has spent any time at all in the insurance industry knows, the "tort reform movement" was the brainchild and largely financed by AIG and other property casualty firms back in the 1980s when an artificial crisis in reinsurance was created to drive up pricing on excess/surplus and reinsurance coverages. When the companies saw how effectively they could pass along the blame for higher insurance costs on the supposedly run away verdicts and litigation costs in America to the trial lawyers, they devised the next stage in their plan. That was to move on a state and federal level to cap damages on all types of claims such as medical malpractice and work to limit punitive damage awards. The gambit has always been that any actuary can devise a profitable pricing on a line of insurance when they know that their upper limit on damages is capped in any fashion. It becomes a no lose profit making line of coverage when they know exactly what the upper limit is on a potential claim.


However, to get the legal and legislative cover to change laws, elect judges, run state wide referendums and pack the courts it takes money and lots of it. Enter AIG and all of the other major casualty companies who had the biggest stake in the game to get limits on damages, allow for preemption of state courts and strip citizens access to the courts. It may be lost to history the amount of money that was paid by AIG, it's political action committees, executives, agents and affiliates to fund state and federal tort reform measures, but you can only imagine the money spent from the mid to late 1980s until now.

Since that time, here is the shameful litany of AIG's recent shenanigans:

Early 2000's: target of a series of fraud investigations that ultimately led to the forced resignation of Maurice Greenberg, the company's CEO and Chairman for nearly 20 years;

2005-2006: An investigation initiated by New York's attorney general eventually resulted in a $1.6 billion fine ($1.15 after taxes) for AIG and criminal charges for some of its executives. The February 9, 2006 settlement resolved allegations that A.I.G. had participated in bid-rigging schemes and paid insurance brokers to steer business its way, used fraudulent insurance transactions to bolster the quality and quantity of its earnings and underreported to state insurance departments the amounts of workers' compensation premiums it had collected, on which it owed taxes. In 2005, it restated its financial results for five years beginning in 2000, a period when improper accounting inflated the company's earnings by more than $3 billion. (Gretchen Morgenson, "A.I.G. Apologizes and Agrees to a $1.64 Billion Settlement," New York Times, 2/10/2006).

2008: Greenberg's successor, Martin Sullivan, was forced to resign on June 15, 2008, after the company's stock began plunging after the company reported financial losses. On September 17, 2008, Sullivan's successor Robert B. Willumstad, Chairman of the Board of Directors of the Company since 2006, was quickly forced to step down and replaced by Edward M. Liddy, as one condition of a federal bailout of the firm


Source: http://www.crocodyl.org/wiki/american_international_group_aig

And all these questionable practices were occuring at roughly the same time AIG was investing in risky mortgage derivatives. Bottom line: at the same time AIG spent millions restricting injured persons' rights to sue "for the good of the economy" and relief for American businesses, it was a major force in collapsing and ruining our economy!

Has there been a more shining symbol of hypocrisy from an American business in recent memory? Remember the example of AIG the next time you hear groups like The Chamber Of Commerce lobbying for more lawsuit reform in order to "help our economy."

We now see where all that "lawsuit reform" and "help" for American business has gotten us.

$50 Million Chimp Lawsuit Explained

Wire services are reporting that the woman viciously attacked by a friend's chimpanzee recently has filed a $50 million lawsuit against the friend.

A couple of points here. First, the amount anybody sues for is COMPLETELY IRRELEVANT to anything that happens after the lawsuit is filed. Perfect examples (1) this woman, who was seriously injured and may have brain damage, and (2) the goofball $54 million lawsuit over a lost pair of pants. Both have sued for over $50 million; one person is hurt and the other one is...well...missing a pair of pants, and neither will ever see anything in the same stratosphere as the amount they sued for.

In fact, under Ohio law, if a person is seeking more than $25,000 from a lawsuit for whatever reason, the complaint must state exactly that, and asking for "millions" is technically a violation of Civil Rule 8 (which is never enforced, by the way). And asking for "more than $25.000" in the lawsuit complaint doesn't mean that the plaintiff (the person bringing the lawsuit) will ever get it or is entitled to it. That call is up to the jury or judge, neither of which is bound by what the complaint sought in damages.

So why do attorneys or people filing lawsuits on their own (the pants lawsuit guy) continue to ask for ungodly sums of money in lawsuits both legitimate and frivolous? Simple. Publicity. It makes news. Generally speaking, combine a chimpanzee AND $50 million of anything and it's probably newsworthy...unless it involves more bailout money. That's now considered CHUMP change...

Hit And Run Drivers...And How Your Insurance Company Gets Out Of Paying For Their Damage

You're driving down a country road late at night with your family and a van crosses the center line and is heading directly at you. You swerve quickly to avoid a collision and manage to miss the van, but you lose control and hit a tree. The van left the scene. You describe the van to the investigating officer as a gray and blue Ford van, but you were not able to positively identify it or get a license plate. Your car is totalled and so is your knee and shoulder, two surgeries and $35,000 later.

You call your agent, since you have Ohio uninsured motorists' coverage, which you were told would cover you in this situation. Result? Weeks or months later, your own insurance company denies your injury claim. Your uninsured motorists' coverage contains a clause that requires you to prove one of two things: (1) physical contact with the offending vehicle, or (2) "independent corraborative evidence" through independent third-party testimony that an unidentified vehicle caused your injury.

Your family's testimony describing the van is not enough. Why? Because Ohio law presumes that you are essentially filing a fraudulent claim until you prove otherwise. "Preventing fraudulent claims" is the reason for requiring "independent evidence" of the existence of an unidentified vehicle. It doesn't even matter if you're an honest person who never in your entire life had a claim and even passed a lie detector test. Nope, Ohio law throws out the baby with the bathwater, so to speak, and presumes that you (and everybody else in the same situation) as an honest and premium paying insured is trying to hoodwink your insurance company by crashing the family car into a tree. Nice to know that when you send in your premiums, you're presumed to be a fraud and a liar, isn't it?

So what can you do? If you're run off the road by an irresponsible motorist, you need to try to gather evidence pertaining to the offending vehicle as quickly as possible. For example, a competent personal injury attorney can help you by hiring an investigator to attempt to find and interview nearby residents who may have witnessed the offending vehicle in the area. Furthermore, the vehicle may have left physical evidence in the area which can help to trace it the area where your collison occurred. In one Ohio case, testimony by local firefighters that a similar car was seen driving erratically in the same area shortly after forcing the injured person's car off the road was suffieient evidence to allow the injured person to make a claim under her policy.

In these types of cases, time is of the essence, and the longer you wait, the more difficult it is to meet this difficult "independent evidence" hurdle. So the worst thing you can do is wait weeks or months on your friendly insurance company to investigate your crash. After all, if you're "presumed" to be a liar until proven otherwise, you can figure out what the letter from your insurance will most likely say: CLAIM DENIED. I think Bob Dylan said it best when he sang: "You don't need a weatherman to know which way the wind blows."

www.n-wlaw.com

Your Comments Helped To Create 3,500 Meals

Our "Comments For Cans" Campaign is now over, as the total comments on our blog has exceeded 100. I just found out from folks at the Akron Canton Regional Food Bank that a $1 donation provides 7 meals for those in need. So, thanks to all of you who responded, our $500 has turned into 3,500 meals. Pretty cool. The check is in the mail (really, it IS in the mail, I promise). If you still want to leave a comment anywhere on the site, we welcome all comers.

Thanks again to all of you who took the time to leave a comment. We will now return to our regularly scheduled programming...

Comments For Cans Update

The power of association is an awesome thing.

Last week we launched our "Comments For Cans" program (see post below) to raise awareness and money for the Akron Canton Regional Food Bank. My wife, a photographer and fellow blogger, was all over this and immediately notified her colleagues on her various photography forums such as "Two Peas In A Bucket" and "The B School." Her fellow "peas" and other photographers responded en masse. Many thanks to all of you, as your passion and compassion shines like the morning sun peeking into the window on a Spring morning (you know, the spot right where our dog will lay and my wife will shoot--I mean photograph--him).

In fact, one photographer, Terra Dawn, took to heart our plea to use this idea and launched her own program called "Comments For Cause" to benefit inner city youth arts programs. Kudos to you, Terra.

The response from some of my attorney colleagues was outstanding as well, thanks to some help from Ben Glass, an outstanding attorney and entrepreneur who understands how to get a message out to the Internet and who has many charitable ideas and programs of his own through his firm. I hope some of his colleagues run with this idea as well.

And many thanks to all who took the time to leave a comment, including some of my fishing brothers and sisters in Canada who visited courtesy of the Ontario Fishing Forum, one of my favorite Internet hangouts. One of the many reasons why Canada rocks!

It just goes to show how connected we are and how The Internet can be a force, if even a small one, for good ideas and doing good. It's encouraging at a time where we could use some good news.

One change to the "Comments" program. Never having done something like this before, I had no idea what to expect. I've come to realize that 500 comments is unrealistic in the short term. Lesson learned: many more people visit a site than leave a comment. So a correction is in order. As soon as we get 100 comments, we'll donate the $500 to the food bank.

After all, it's our contest and we can change any rules we want.

Comments For Cans

Recent newspaper articles in the Canton Repository and Akron Beacon Journal have highlighted that more and more Ohioans are losing their jobs, and are relying on local food banks just to get by. In some of the worst economic times we've ever witnessed, the increasing strain on our food banks is obvious.

We launched our Bullseye Blog last year as a way to educate people about our justice system and how legal developments in and out of Ohio affect your rights. As a way to combine that goal with a small measure of social responsibility in more pressing matters, I am asking for your help, and it won't cost you a thing. Simply leave a comment on this blog post or any other post as you browse through the site. When the number of comments reaches 500, Nicodemo and Wilson will make a $500 donation to the Akron-Canton Regional Food Bank.

We're calling this program "Comments For Cans." So leave a comment, and spread the word around in the Internet community. And I invite other bloggers to outright steal this idea if you think it's worthy of copying. In fact, we'd be honored if you did.

After all, little hinges can open big doors. Let the comments begin..

"Why Do You Blog?"

I am occasionally asked this question. When I explain that I blog to share an idea or experience that might offer a new or different perspective on an issue, the standard responses are a perfunctory "Oh, that's nice" or "sounds like a lot of work." Sometimes people will nod their heads and not say much of anything (translated: I really don't know what you're talking about and/or really don't care).



I'm fine with all of it. And that's because I know my place in the vast expanse of the Internet world. The Internet is changing the way we do business, stay in contact with friends, get our news, and choose products and services. Blogs are like engines--some are huge and produce alot of power, and some are smaller. I liken my blog to a little 5 hp engine that sits in the corner of the garage and hopefully starts on the first pull and cranks out some work each week.



Recently I was thinking about the lessons I've learned in over 20 years as a trial lawyer who represents people injured in all sorts of preventable calamities. The biggest lesson: that people who are hurt the worst generally complain the least. Many have fought back from ground zero: comas, brain injuries, learning to walk and talk and read again. It's amazing what they learn to celebrate and appreciate, like learning to feed or dress themselves again. Suprisingly, they are hardly ever as angry or bitter as I expect them to be. I'm no psychologist but I can only generally observe that the survival mechanism of simply fighting and clawing to get back what was lost leaves little time or energy for bitterness. And any anger tends to be compartmentalized.



I've seen this phenomenon over and over again. It is counterintuitive to how accident victims are commonly portrayed by those seeking limits on lawsuits. These victims are often painted as opportunists who are exaggerating their losses and looking to cash in on some "litigation lottery." There are lots of reasons for this belief, which I've written about previously here and here, but the root causes are insurance industry propaganda and our profession's own self inflicted wounds.



It's truly a shame, because it's yet another example of perception not squaring with reality when it comes to things like lawsuits. And if this blog helps to give certain groups a voice or set a story straight, it's worth firing up the little engine.

Paying It Forward? Insurance Comapnies Call It "Paying It Back"

"Why do I have to pay back (my health insurer) (my auto insurance company) (Medicare) (Medicaid) out of my injury case?" It is one of our clients' most frequently asked questions. Short answer? Because the law basically allows it. Let's take private insurers, like your health or auto insurance companies, first. Almost all states allow private insurers to insert a fine print clause, buried in your health or auto policy, demanding that you reimburse them out of any settlement or verdict if they pay any bills that are due to your injury. This is known as "subrogation.".

If it seems unfair that your own company can get back what it paid out of your settlement, despite the fact that you already pay premiums for this coverage, it's only because it is. In fact, a minority of states prohibit subrogation. But most states, including Ohio, allow it. Sometimes the amount of the reimbursement can be negotiated if there are compelling circumstances. But courtesy of a recent Ohio Supreme Court decision, a health insurance company is entitled to confiscate every penny of your settlement as reimbursement for bills it paid, even if it leaves you with nothing, as I've written about before.

What's more, under federal law, Medicare is entitled to be reimbursed as well if it paid any bills due to an injury and if you obtain a settlment or verdict. Dealing with Medicare to figure out what they paid, and how much they are requesting as reimbursement, is the equivalent of slamming your head against a concrete wall--repeatedly. Frequently, we settle our clients' claims, only to have to wait for months for Medicare to tell us how much they're claiming as reimbursement.

The truth is that we as plaintiffs' attorneys put back millions (and probably more accurately billions) every year into the Medicare coffers as a result of successfully pursuing injury claims. Although I and my clients would prefer not to have to do this, at least with respect to Medicare it serves the purpose of putting money back into a government program that serves society.

But when private insurance companies are getting millions back from their own insureds, who pay premuims for this coverage, or have earned it as a benefit through their employment, the only "benefit" is the abstract, company line insurance industry argument that recovering this money "keeps premiums and costs down."

To that I say "meadow muffins" (syn; see "horse hockey," "crap," "b.s."). If that's the case, why aren't our health insurance premuims going down? As small business owners who provide health care coverage for our employees, our health care premuims have NEVER gone down, and in fact, increase every year. And I'm sure I speak for everyone else on the planet on that score.

"Decreasing health insurance premuims." File that one with "jumbo shrimp," hot water heater," and countless other oxymorons...

Everything's Bigger In Texas....Except Justice

How would you like to lose both of your arms AND legs due to a preventable medical error? True story, and it happened to a 53 year old Texas man in 2003. He brought a lawsuit against the infectious disease doctor who apparently didn't diagnose the man's MRSA (methicillin resistant Staphylococcus aureus) hospital acquired infection until it was too late.

A Texas jury found the doctor negligent and returned a verdict for $17.5 million, according to this recent article. However, under Texas medical "reform" laws that arbitrarily cap or limit what injured patients can recover in lawsuits, the judge was required to chop the verdict to $7.5 million--a $10 million discount. This raises some legitimate questions: Should someone get a $10 million discount for being in the wrong? Should anyone get such a discount when a jury made a community decision and set the value being a prisoner in your own body at $17.5 million--or $12.4 or $9.3 million or whatever that figure is?

I'm sure the doctor's malpractice insurance company is very pleased with this law and this result. If this happened in Ohio, our own legislative "caps" would have reduced this man's recovery to his medical bills, lost wages, the future costs needed to take care of him, and a whopping $500,000 for having his quality of life absolutely gutted. And "reforms" such as lawsuit caps were all passed in the name of keeping health care costs down, which, by the way, are skyrocketing.

So let's recap. Lose all your limbs, wait 4 years to get your day in court, prove your case and win...and then get over $50% of it taken away. And put right back into an insurance company's pocket. Reminds me of a quote from a Charleston woman when she learned that South Carolina had voted to secede from the Union shortly before the Civil War: "Pardon me, but is a majority always drunk?"

Ohio Tort Reform Legislation Protects Drunk Drivers

How could Ohio legislators pass laws favoring drunk drivers in court over their victims? They have, and here's how. Let's say you're hit head on by a drunk driver. You shatter your leg, need surgery, rack up thousands in medical bills and lost wages, and go through almost a year of painful physical rehab.

If you file a lawsuit against the drunk driver, you are entitled to possibly two different types of compensation. One is "compensatory damages," which a jury assesses for your past and future medical bills, lost wages, physical pain, and any permanent injuries you will have.

The second form of compensation you might be entitled to is "punitive damages." These damages are separate from an injured person's compensatory damages, and are designed to punish wrongdoers for reckless or outrageous conduct like driving drunk.

Example: You go to trial against the drunk driver/his insurance company, and the jury hears evidence that the driver was two times over the legal limit, and attempted to leave the scene. In that same trial, the jury also hears about how you needed emergency surgery, missed 5 months of work, missed your childrens' ballgames, and had to hire out all the house or yard work you do yourself. If the jury returns a verdict of $100,000 for your compensatory damages and $100,000 in punitive damages, this was all well and proper....until 2005.

Enter "Senate Bill 80"--Ohio's "tort reform" legislation. According to our Legislature, we had a "crisis" and we needed to cut down on "frivolous lawsuits," or so we were told by the insurance industry, manufacturing groups, the Chamber of Commerce, big tobacco, and all the other conglomerates who spent millions in Ohio lobbying for the bill. This bill was a wish list for corporate America, and they got it. One of those gems was a provision that prohibits a jury from hearing ANY evidence that the driver was drunk until after it decides the amount of compensatory damages (known as "bifurcation," which means to separate out in "legal speak").

Who pushed for this law? Insurance companies. They don't want juries to hear evidence of their insured's outrageous conduct (i.e. the truth) for fear that the jury will return a higher verdict for the injured person. As a result of this law, juries are not told the truth, and we have to engage in a sterilized, fictional version of a trial. For all the jury knows, the drunk driver was coming home from church (instead of the bar where he had 6 shots and 8 beers). And if a judge "bifurcates" a trial, there are now two phases to it--a "compensatory" and a "punitive" phase, meaning a longer and more expensive trial.

Thankfully some judges will refuse to bifurcate a trial despite this new law, and will allow the jury to hear ALL the evidence, including the driver's intoxication, before they return their verdict.

But it amazes me that the Legislature would agree to pass such a law. Why are we protecting drunk drivers who hurt people with the equivalent of a 2500 pound bullet on our highways? What kind of message does excluding evidence of their intoxication at trial send? Where's the "personal responsibility" in that law?

At the end of the day, we have offensive laws like this because insurance companies asked for them to protect their bottom line--plain and simple. I'd love for a Legislator to explain this law with a straight face to a drunk driving victim, or advocate groups like MADD or SADD. Remember the adage you probably heard from your parents or grandparents: "You break it, you buy it?" For Ohio drunk drivers, it now translates to "You break it, we'll bifurcate it."

Who Pays For Auto Accident Bills?

“Why should my insurance pay for my bills since this accident was not my fault?” Without a doubt, THIS IS THE NUMBER ONE QUESTION WE HEAR from our clients. And we hear it for good reason: it’s the most worrisome aspect of an injured person’s claim. Clients want to make sure their bills are taken care of in a timely fashion, without being turned over to collections or having their credit impaired.

However, just like the concern over having to use their own collision coverage for fixing their car, many clients question why they should use their own health or auto medical payments insurance (known as “med pay”) if the collision was someone else’s fault. These questions have led me to the following conclusion: the insurance industry has done a terrific job of scaring you into believing that if you actually use your insurance, your rates just might go up.

This is basically bogus, as Ohio law states: “No insurer shall increase the cost of a private passenger automobile insurance policy based on the insured’s involvement in a motor vehicle accident with an uninsured or underinsured motorist,” as long as the accident was not your fault (Ohio Revised Code Section 3937.23).

Secondly, and more importantly, once you understand how insurance companies operate AND how insurance laws work, you won’t want the at fault party’s insurance company “handling your medical bills” – unless you enjoy the equivalent of slamming your head against a brick wall.

Although each insurance company is different, many of their “policies” for handling your medical bills fall into predictable patterns. Some companies will do their best to convince you that you “won’t need an attorney,” or will “work with you” or “treat you fairly,” and will offer at the outset to pay your initial bills. And they may pay the ambulance bill, or the emergency room visit, and maybe even your initial follow up visit to your family doctor. After that, the general rule in my experience is: “Good luck.”

If your medical treatment involves anything more than an ER visit or single doctor bill (like repeated doctor visits, physical therapy, massotherapy, or diagnostic scans such as CT Scans, MRIs, etc), you’ll soon be introduced to the insurance company “auditing process.” This is fancy insurance lingo for a computer generated medical review process that tells the adjuster (who later tells you) WHAT IS REASONABLE MEDICAL TREATMENT FOR YOUR INJURIES.

(The preceding was an excerpt from my free book, "Your Ohio Accident...And How To Level Your Playing Field." To order the book and read more about what you can do to protect yourself when insurance companies deny payment of your medical bills, click here).

Our "Sue Happy" Society--Myth Vs. Fact

I hear it all the time: We as Americans sue "at the drop of a hat," are "sue happy," or are trying to hit the "litigation lottery." There are a number of reasons for this. The first is goofball lawsuits which make their way into the media, like the guy who sued the dry cleaners for $54 million for losing his pants (by the way, he sued on his own without a lawyer). Like a dirty bomb, they are poorly constructed but are still capable of doing tremendous damage to how the public views our civil justice system.

Running a close second is the 40 plus years of a sustained propaganda campaign orchestrated by the insurance industry, big business, and The Chamber of Commerce. They have spent billions and billions convincing the public that we are awash in bogus lawsuits that are wreaking havoc on businesses and the economy, in order to lobby for legislation restricting access to our court system. And, lastly, we as attorneys have shot ourselves in both feet with tasteless and moronic TV ads, and offensive "solicitation" letters that land in injured motorists' mailbox even before the hospital bill arrives. Is it any wonder that the public has such a bad perception of lawsuits and attorneys who bring injury lawsuits?

Yet, the perception that we as Americans are suing everyone in sight doesn't square with the reality of what I've seen on a daily basis in over 20 years. Probably 95% of my clients have never made any claim against anybody before they see me. Many of my initial interviews go something like this: Were you ever in any collision before this one? "Yes, my car was totalled and I was banged up and went to the ER and had a doctor visit or 2 but I was fine and all I wanted was my bills paid and that was it." In fact, I see more people who had some sort of legal claim and didn't pursue it (like a consumer ripoff scheme or a potential malpractice claim) than those who did.

Truth is, the number of lawsuits and median jury verdicts in this country is steadily declining every year. A recent study by the U.S. Justice Department revealed that in the country's 75 most populous counties, the number of civil trials decreased by 52% from 1992-2005. Injury or "tort" cases declined by 40%. And the median jury trial verdict was $43,000, a 40% decrease from 1992's median average of $72,000.

If these are the facts, why does the public still believe that we're drowning in lawsuits and juries have gone wild, handing out gazillions at every turn? The answer is simple. The issue of lawsuits and their value in society for redressing wrongs has become an emotional issue, built on perception and "feelings" and not on facts. And in the battle of emotion and perception versus facts, emotion wins.

I think it was Mark Twain who once said: "A lie can travel twice around the world before the truth can put its pants on in the morning." That axiom will trump the old adage "Just the facts, ma'am," every time. And the sad byproduct of it all is that the toxic mix of all the propaganda and our profession's own self-inflicted wounds has only served to cast a wide net of suspicion over legitimately injured people who bring lawsuits.

Doctors Bringing Class Actions--$350 Million Reasons Why Doctors Love Lawsuits (No Caps Either...)

Sometimes seemingly unrelated events line up or intersect with one another and serve to prove a larger point. Pharmacists refer to this as a "synergistic effect," like when 2 medications combine to become more potent than if taken individually. The first noteworthy "event" is an American Medical Association (AMA) report of a $350 million class action settlement on behalf of doctors who were shortchanged in reimbursements due to faulty and one sided health insurer reimbursement databases.

There's two ways to look at this issue. The first is the right and fair way. It's true that health insurance companies are unfairly squeezing doctors by ratcheting down their reimbursement rates, as I've noted previously. As such, if these insurance practices are unlawful, doctors have every right to sue to recover the millions they're due. That's what our court system and right to trial by jury is all about.

Now let's look at it from the perspective of how the AMA feels about anyone else accessing the court system and bringing a lawsuit....say, a malpractice suit against a doctor who cuts off the wrong leg, or a hospital that mislabels pathology slides, causing a woman to have her breast mistakenly removed. Fairness and consistency might dictate that if doctors can sue and collect $350 million, an injured woman could collect whatever damages she could prove to a jury--whether it's $500,000 or $1.3 or $3.4 million for the wrongful removal of her breast. Only fair, right? You know, the "what's good for the goose is good for the gander" saying we've all heard...


Enter the second "event" I was referring to. The other day, a Las Vegas jury returned a $2.5 million verdict against a physician who failed to detect colon cancer in a 27 year old woman, who died leaving a 5 year old child.

$350 million versus $2.5 million. So does the AMA believe that families harmed by medical negligence have the same right to bring a lawsuit and have a jury decide what damages are due to the injured patient? No, not really. When it comes to people bringing legitimate lawsuits against physicians or hospitals, the AMA has spent millions and millions on a militaristic lobbying campaign to limit physicians' liability to a meager $250,000 cap on someone's lifetime of misery and pain. And the AMA supports a whole bunch of other "reforms" that make it more difficult for malpractice victims to pursue legitimate claims. And by the way, Nevada has an arbitrary "cap" of $350,000 for victims "pain and suffering," in this case the 5 year old girl who lost her Mom.

Hmmm. Physicians get to sue the pants off of the insurance industry to recover their losses, but when you lose your leg or your mother, now there must be "limits" and "caps" and this is supposedly all good for patient access and care, according to the AMA.

The AMA's "horse pill hypocrisy" on the issue of lawsuits is difficult medicine to swallow if you're on the receiving end of a preventable medical tragedy.

Abusive Debt Collection Practices--And What To Do About Them

It seems like I'm hearing more and more about really nasty debt collectors who are hounding people, including some of my clients. These clients are being stuck with large outstanding balances on their collision related medical bills due to high deductibles and co-pays. Since unfair debt collections law is a growing field of expertise, I've asked Dayton consumer attorney Amy Wells (www.OhioConsumerHelp.com) to write a guest column on abusive and illegal debt collection tactics. Her insight on this issue is posted below....thanks Amy!

ABUSIVE DEBT COLLECTORS—AND WHAT TO DO ABOUT IT

One industry is not feeling the sting of our serious economic recession and mass job losses: debt collection companies. Many consumers are finding themselves unable to sustain payments on their credit accounts and medical debts. Delinquent credit card accounts hit a six-year high in 2008.

Creditors unable to devote the resources necessary to pursue the thousands of people defaulting on various accounts have turned to debt collection firms. In many instances, the debt collector buys charged-off accounts from the original lender for pennies on the dollar. Regardless of the nominal amount paid for the debt, the debt collector usually tries to recoup most, or all, of the original debt.

The number of debt collection firms has mushroomed from about a dozen in 1996 to over 500 today. This can only be expected to worsen as the economy spirals downward.
The proliferation of aggressive collection firms has exposed consumers to a “new breed” of debt collectors, which frequently hound and oppress consumers to pay stale bills for amounts that may or may not be correct, or worse yet, may not even be theirs. Whether a consumer actually owes the debt or not, debt collectors may not engage in unfair, deceptive or abusive tactics.

In an attempt to squeeze money from consumers, some collectors resort to illegal tactics such as harassment, verbal abuse, and even threats of violence or legal action. In more egregious cases, the debt collection company will go so far as to harass and abuse a family member with a similar name, or even the wrong consumer!
Some signs that you may be a victim of unfair collections include:

• Third parties other than you are being contacted;
• You received Postcards from the Collector;
• Calls at unusual times or unusual places (calls before 8:00 a.m or after 9:00 p.m. or at your job when the debt collector knows you are not permitted to take such calls);
• Continued contact after written instructions to stop;
• Abusive, threatening, or harassing contacts;
• Collectors refusing to identify themselves;
• False or misleading representations; and
• Failure to report a debt as “disputed” to the Credit Bureaus.

What you can do to protect yourself if you are a victim of unfair collections:

• Keep a detailed log of all communications, and copies of all documents;
• Dispute the debt in writing within 30 days;
• Record harassing phone calls (Be certain to consult a legal professional regarding the legality of recording in your state);
• Don't take the calls (This does not cancel your debt. The original creditor or the collection agency may still decide to sue you);
• Try to negotiate the debt (Be certain to get everything in writing before you pay any money. And, consider contacting a legal professional to ensure the enforceability of any written agreement);
• File a complaint with the Federal Trade Commission or Ohio Attorney General; and
• Consult with an attorney about filing a lawsuit.

Debt collectors who violate your legal rights by using unfair and abusive collection tactics may be liable for your out-of- pocket losses (e.g. loss of income, counseling expenses, telephone charges), non-economic damages (e.g. anxiety, loss of sleep, loss of enjoyment), and also your legal expenses.

Contributed by Amy L. Wells, consumer attorney at Behnke, Martin & Schulte, LLC. www.OhioConsumerHelp.com

"Cashing Out" Injury Victims--Not So Progressive?

The other day I received a call from a potential client, who was broadsided at an intersection by a driver who left the scene, and apparently was later found in possession of drugs. Within 3 days, a Progressive adjuster sent the caller a check for a couple thousand dollars, and told him that unless the check was cashed, the claim would be "closed out." He returned the check--good move.

The second good thing he did was not return the scads of calls from chiropractors who've been calling him offering their "services" after getting ahold of his accident report (something to avoid at all costs in my humble opinion as I explained in a previous post). He asked me: "Can they just close my claim since I didn't accept the check?" Answer: No. In Ohio, you have two years to pursue a claim against the negligent party. More importantly, it raises the question: what should people do in this situation? I discuss this in "Your Ohio Accident...And How To level Your Playing Field." Below is an excerpt of the book...

CHAPTER 3: DO I NEED AN ATTORNEY TO
HANDLE MY CLAIM?
Short answer: probably, but not always. Sometimes, we will advise potential clients that they can do just as well handling their own claim as we could do for them if we represented them. But this rule is the exception, and not the norm. Below is an example of practically the ONLY circumstance where you can 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.

*******

The same is not true, however, if your injuries require anything more than a simple doctor’s visit, such as a couple of doctor or chiropractor visits, physical therapy, tests, or injuries like fractures or injuries requiring surgery. And this brings into play RULE NO. 4 OF THIS BOOK: THERE ARE MANY WAYS YOU CAN RUIN OR JEOPARDIZE YOUR CLAIM WITHOUT EVEN KNOWING IT, so you should consider hiring a competent attorney to assist you in leveling your playing field against the insurance company.
Some of these sins are minor, and others will kill your claim. Many of the minor ones occur before the injured person ever calls us, and some can be minimized or repaired, but in no particular order they are:
(To read more, click here for a FREE copy of the book...)

I have no idea whether this caller has a limited claim he can handle on his own or one that I can help him with. Every injury is different. Some people recover quickly with little to no need for medical help, and other injuries get worse over time and need medical intervention and time to heal. But the surest way to kill your claim is to sign the "cash out" check and the release. Insurance companies have the right to follow a business model to cash you out as soon as possible and cut off their exposure. And you have the right, and the time, to decline.

Handling Your Own Personal Injury Case...And Getting Handled (Lessons Learned)

So you want to handle your personal injury case against an insurance company on your own? Read on. Recently I was appointed by a judge as a "Guardian Ad Litem" for a minor child injured in a collision. The child's parent negotiated the child's claim with the insurance company and did not seek legal counsel. The judge, who reviews and must approve all minors' settlements under Ohio law, was rightly concerned whether the settlement was a fair one to the child. It was my job as guardian to review the claim, te child's injuries, and the negotiations and reach and independent opinion of the fairness of the settlement.

When I reviewed everything, I discovered that the negligent party's auto insurance company had attempted to reimburse the family's health insurance company for $10,000 worth of medical bills the health insurance company had previously paid (this is known as "subrogation"). One small problem: the health insurance company in this instance had no legal right to reimbursement.

The auto insurance company never took the necessary steps to determine whether the health insurance company had legal reimbursement rights. It simply assumed--wrongly--that it had to reimburse the health insurance company. Verifying a health insurance company's reimbursement rights is something a competent personal injury attorney does, or should do, in every case. In essence, the auto insurance company made an incorrect legal decision, without explaining any of this to the parent, to the tune of $10,000.

To make matters worse, the settlement offer made by the insurance company, and accepted by the parent, was inadequate. Thankfully, the judge undid the settlement and the insurance company made a more reasonable offer, and the case was resolved.

The parent told me after the hearing: "Wow, I didn't realize any of this." He was thankful the judge had carefully reviewed the situation and appointed someone to independently evaluate it.

General rule: in any accident claim, you "go it alone" at your peril. Now you know why many insurance companies discourage injured folks from hiring an attorney with promises to "handle your claim fairly." So who got handled here? And, by the way, this was the family's OWN insurance company.

Our free book, "Your Ohio Accident...And How You Can Level The Playing Field," explains when you'll need a competent attorney to represent you, how to choose one, and the one circumstance when it's OK to "go it alone" if you're so inclined.

Ohio Auto Insurance Limits: "We're 46th!" (Woohoo!)

Yet ANOTHER reason why Ohio auto insurance laws are lousy and favor insurance companies over consumers. We all know that Ohio law requires you to have liability insurance in order to drive. So does every other state. But some states protect motorists at the hands of dangerous drivers better than others.

For example, most states require drivers to have at least $25,000/50,000 liability limits. Here's what it means: if you are injured by a negligent motorist carrying "25/50" limits, you can collect from the negligent driver's insurer up to $25,000 for your individual injury claim if your injuries and bills and lost wages merit it. And if two or three members of your family were injured, for example, the most that can be collected for everybody is the $50,000 total limit.

These limits are not great, but at least they offer injured drivers more ability to recover their losses than states with bare bones limits requirements. General rule to remember: the higher the mandatory liability limits, the more protection consumers have.

For decades, Ohio law has required that drivers carry puny limits of $12,500/25,000. Forty six states have higher liability limits than Ohio. Yes, that's right--Ohio has stagnated at the bottom of the barrel with Louisiana, Oklahoma, and Florida as having the crappiest minimum liability limits laws in the U.S.

For YEARS insurance companies in Ohio have fought tooth and nail against joining almost every other state and raising minimum limits to more reasonable 25/50 limits. The arguments against simply bumping up the limits a notch usually involve the normal, threadbare ones like "it will make insurance more expensive", "it's bad for consumers," "bad for Ohio's economy," "the sky will fall, insurers will pack up and leave, Ohio will collapse and have to secede from the Union and join Canada, etc" (that last one was a slight exaggeration but you get the point...).

Nonsense. The difference in price between a "12.5/25" policy and a "25/50" one is probably less than $50 per year. If you don't believe me, just call and get some quotes on the difference between the two. I'll bet there isn't much of a difference.

More importantly, if you get clobbered by someone with minimal "12.5/25" limits, it means (1) you might have to access YOUR uninsured/underinsured motorists' policy with your own company to recover the losses not covered by a flimsy "12.5/25" policy; and (2) if you can't make a claim against your own policy and are stuck with thousands in unpaid bills, you might have to go on Medicaid or file bankruptcy.

I guess our Legislature must believe that increasing government assistance rolls and bankruptcy is better than making insurers offer in Ohio what they offer in 46 other states. And, by golly, we sure can't have any insurance laws that PROTECT consumers now, can we?

There are numerous more reasons why Ohio insurance laws are HORRIBLE for consumers, and what you can do about it to protect your family. Just click here to order my free book, "How To Buy Auto Insurance In Ohio To Protect Your Family,"** and its yours.

** Doubles as an all natural insomnia cure. Not to be read in conjunction with any other books or materials, particularly your insurance policy, which may caused bluured vision and headaches...

Verizon's $32 Million Judgment...Litigation Lottery?

Here's the scenario: some company apparently was "cybersquatting" Verizon's trademarks (illegally registering domain names--633 of them--that were either identical or similar to Verizon's). So Verizon sues, according to this article and is granted a $32 million "default judgment." Definition: a judgment granted to the party bringing a lawsuit when the party being sued doesn't timely answer the complaint.

Newsworthy? Probably not. Will it stick? Perhaps not. Many of these "default judgments" are vacated if there are compelling reasons for not answering the complaint. And if Verizon was truly harmed to the tune of $32 million and can prove it, that's the purpose of our civil justice system--to have our court system, without government interference, provide a mechanism for making wrongdoers accountable commensurate with the harm they cause.

But here's what is newsworthy. If this were an injured plaintiff who sued Verizon and obtained the same result, we'd be reading press releases and quotes from groups like "The Institute For Legal Reform," a multimillion dollar wing of The Chamber Of Commerce, railing about how businesses are being held hostage by "lawsuit abuse" and how the tort system is a "litigation lottery" and other drivel.

But since this was a large corporation seeking to enforce its legal rights, somehow I don't think we'll be hearing from The Institute on this one any time soon. Businesses exercising their rights and suing for millions-- good. Injured citizens suing corporate America--bad. It's all you need to know about "The Institute's" position.

Dangerous Chinese Products--Ohio Law Protects Them

A happy and hopefully prosperous New Year to all. The New Year got me thinking about the Chinese New Year, and which animal will be represented as their 2009 symbol. That, in turn, made me think about all the recent news stories about dangerous Chinese products that continue to find their way into the U.S. Here's a short list of what we've seen recently:

Poisonous toothpaste. Kids' jewelry and metal toys loaded with toxic lead. Food contaminated with pesticides, carcinogens, and bacteria. Contaminated heparin. Even poisonous pet food that killed 39,000 animals. All these products had two things in common: they were made in China and consumed or used in the U.S.

According to a recent report from the Consumer Product Safety Commission, "the value of U.S. imports of consumer products manufactured in China was $246 billion, comprising approximately 40% of all consumer products imported into the U.S."

What if a dangerous product injured a child in Ohio? Under recent "tort reform" laws passed by Ohio lawmakers in 2005, Chinese manufacturers would enjoy numerous legal protections, including limits on what injured Ohio victims could recover. Chinese manufacturers' liability would be capped or limited to figures as low as 350,000. And their liability for punitive damages (damages designed to punish for willfully ignoring product safety concerns) would be limited to two times the amount of "compensatory damages" (items like medical bills or physical pain and disfigurement).

Worse yet, they could be 100% IMMUNE from punitive damages if the product causing harm was manufactured in accordance with applicable FDA standards.

One large problem however: The FDA in a recent report has acknowledged that:

many products come from countries with little ability to provide the regulatory oversight needed to assure the safety of the products exported; and
lax oversight in many foreign places presents opportunities for products to be unintentionally contaminated, or intentionally contaminated by those who mean harm, by counterfeiters, or by those who try to profit by "cutting corners."

In fact, the situation is so bad that the FDA set up a special program to take extra measures to try to ensure that Chinese manufacturers produce safer products. But we all realize now that dangerous products, food, and medicines are still making their way into the hands of U.S. consumers.

So why on earth should foreign manufacturers enjoy limited liability in Ohio for producing dangerous products? Because numerous business groups like the Ohio and U.S. Chamber of Commerce, The Ohio Manufacturers' Association, The Ohio Society of CPA's and insurance companies spent millions lobbying for Ohio products liability reforms for ALL manufacturers "to improve our legal climate." And these laws as passed protect ANY domestic or foreign manufacturers, even bad ones that cut corners on product safety and expose us to all sorts of life threatening risks. Nice to know that this is what our Legislature has been up to recently, isn't it?

Unfortunately, nobody will notice or even care about this issue until one of these products causes a tragedy to an Ohio family. And then you can expect people to be shocked and outraged at the idea that bad manufacturers are somehow protected by Ohio law. I wonder if these lobbying groups (and the politicians who voted for these laws) will then say that protecting these companies is "good for Ohioans."

Which animal is representing the 2009 Chinese New Year? Ironically, it's the ox. So whose ox is really being gored here?

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.

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.")

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.

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.

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.

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.

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.

ATTENTION DIVORCED PARENTS: IS YOUR CHILD COVERED FOR THAT AUTO ACCIDENT? (AND WHAT YOU CAN DO NOW TO PROTECT YOURSELF)

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!

"YOU'LL SHOOT YOUR EYE OUT!" (A True Case Of Injury With A Red Rider BB Gun)

File this one under the "strange but true" category. While researching Ohio law recently, I stumbled upon an actual Ohio case involving--I'm not kidding--an eye injury to a child from a Red Rider BB gun (those of you unfamiliar with "A Christmas Story" will have no idea what the significance of that fact is at this point, but maybe the video clip will clue you in). Apparently there was some horseplay amongst some minor children and one child accidently shot another with the BB gun.

As it turns out, Ralphie's Mom in the movie ("You'll shoot your eye out!") was right after all. In honor of that movie (one of my favorites of all time), and in the spirit of holiday safety, I feel compelled to bring this case to the attention of the Internet world...

Mom's advice aside, I have to side with the Dad who bought the BB gun for Ralphie. If Dad doesn't buy the gun, the Bumpass' dogs never would have eaten the Christmas turkey, the Parker family would have never been introduced to "Chinese turkey," and the ending of the movie would have been downright lousy. Long live Ralphie Parker and his Red Rider "Peacemaker."

An Excellent Resource For Ohio Divorce Law

I don't practice divorce law, but as a fellow blogger I come across some pretty good blogs dealing with other areas of the law. One I recently found was "The Ohio Family Law Blog," written by Dayton attorney Robert L. Mues. His blog is an excellent resource for a variety of topics related to divorce law, including insightful information for parents on how to deal with all sorts of parenting issues that accompany divorce. The address is http://www.hcmmlaw.com/blog/ or you can link to it by simply clicking on the title of this post.

Big Pharma (and America): Meet Diane Levine

Recently I posted about the pharmaceutical industry's attempt to avoid legal responsibility for maiming and killing Americans by claiming in lawsuits that if The FDA approves a drug, it "pre-empts" state laws giving injured citizens the right to sue them, and therefore makes them 100% immune from any liability (See November 9, 2008 post, "Big Pharma, The FDA, And You: Guess Who Loses?"). In that post, I told the story of Diane Levine, a Vermont musician, who, in a twist of cruel irony, lost her right arm after being given an IV injection of the drug Phenergan (an anti-nausea drug) for a simple migrane.

Today I found a link to a video that introduces her, and explains her struggle. It captures more in 22 minutes than whatever I could with a simple blog post.

In the video, you won't find a bitter or angry person. And this is typical, in my experience with representing people who have been seriously or catastrophically injured. If I've found one maxim to be true over and over again, it's this: the people who are hurt the most typically complain the least, despite having every reason to complain alot. She is full of grace, insight, and a willingness to perservere in the face of a preventable tragedy.

America, meet Diane Levine. You can click on the title of this post to see her story. I hope her legal battle has a happy ending, but with this arch conservative U.S. Supreme Court, don't count on it. My uneducated prediction is that the U.S Supreme Court will rule in favor of the drug company, and the industry will now enjoy 100% immunity for ANY drug or medical device, even if either is horribly defective.