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Cell Phone Driving Fatalities

Ken Margolin — Tue, 07 Aug 2007 16:10:00 GMT

If the sight of the driver to your right on the interstate, chatting away on his cell phone gets you angry, you've got a right to be. Various studies have shown that driving while talking on a cell phone can be as dangerous as driving with a blood alcohol level over the legal limit. Estimates of the number of U.S. traffic fatalities caused by cell phone talking while driving are generally in the 2,000 - 3,000 range with one hundred times as many injuries. The best remedy for the menace of cell phone traffic accidents, would be common sense by most drivers and a realization that the common practice is anti-social and dangerous. Failing a sudden epidemic of common sense, legislation and tough enforcement need to be implemented. Enacting legislation will be tough given the lobbying power of the cell phone industry. The effort, though, coupled with public education, can save thousands of lives each year.

Originally posted at InjuryBoard by Ken Margolin

Liquor Licensee Liability Laws

Ken Margolin — Tue, 16 Jan 2007 17:00:00 GMT

Most states in the US have some form of laws imposing liability on liquor licensees that serve liquor to clearly intoxicated persons who then go out to cause injury or wrongful death to a third party, usually by causing a car crash. The laws are known as "dram shop" acts. Organizations such as MADD (Mothers Against Drunk Driving) have been quite successful in campaigning and lobbying to get such laws passed in nearly every state except Nevada. A notable example involves a 1999 New Jersey case in which a man who had been at a Giants game hit and paralyzed a six-year-old girl on his drive home. This man had been served fourteen beers at the game. The parents of the girl, whose suit included the stadium, the team and the NFL, were awarded $135 million dollars.

The dram shop laws vary state to state. The central differences lie in the language which defines the alcohol purveyors' standards of gauging patrons' intoxication levels. In some states the person refused service must be visibly impaired in his physical actions or be manifestly intoxicated to the point of posing a danger to himself or others. Still other wording includes directives to withhold alcohol from persons who are known alcoholics, or the "habitually intoxicated." In a 1981 Massachusetts appellate ruling, the Court held that evidence of "loud and vulgar" behavior on the part of the patron who leaves drunk and causes a car crash, is sufficient evidence to advance the case to a jury.

With the dram shop laws, state legislatures are trying to balance the practical difficulty faced by waiters, waitresses and bartenders in determining who has had too much to drink, with the need to force establishments that serve alcohol to do all they can to protect the public. Requirements such as the one in the Massachusetts dram shop act, that a jury find the conduct of the establishment "wilfull, wanton, or reckless" provide adequate protection to responsible bars and restaurants - though the owners might think otherwise. Opponents of the dram shop laws, generally owners of places that serve liquor, claim that it is impossible, especially in the noisy atmosphere of a bar, to separate the merely fun-loving animated patron from the dangerously drunk. Proponents of the laws and those who want them strengthened, argue that the privilege of owning a liquor license, which can be worth a great deal of money, should carry with it the obligation to insure that staff serving liquor are properly trained to recongize when someone has had enough.

Dram shop cases are not easy to win unless there is solid evidence, generally from witnesses, that the person who caused a serious motor vehicle accident was openly and obviously drunk when the establishment served him more alcohol. When juries make such findings, however, they often show their anger at the irresponsible establishment by awarding large verdicts to seriously injured plaintiffs.

Originally posted at InjuryBoard by Ken Margolin

A Victory Against Trucking Fatalities

Ken Margolin — Wed, 25 Jul 2007 12:45:00 GMT

The federal Appeals Court of the D.C. Circuit, struck down new rules of the Federal Motor Carrier Safety Administration, that would have allowed big rig truckers to drive many more consecutive hours. The case was brought by Public Citizen, a public safety advocacy group, and other groups formed to protect the public against tired truckers. The Appeals Court held that the federal agency had not justified the change in rules, in light of data that showed the trucking industry to be amongst the most dangerous, and fatalities in accidents involving large trucks to be far more likely than those involving cars alone. Naturally, the rules change was pressed by the trucking industry, which consistently ignores the data regarding trucking fatalities, and places profits ahead of quality of life and safety on our roadways.

Originally posted at InjuryBoard by Ken Margolin

Bad Faith Denial of Insurance Claims

Ken Margolin — Tue, 26 Jun 2007 18:15:00 GMT

There is only one reason to buy insurance - to have the peace of mind of knowing that the financial needs of you or your family will be covered in the event of death, catastrophic injury, or long-term disability or illness. When an insurance company denies payment of a valid claim in bad faith, it is practicing the corporate greed version of "what's mine is mine, and what's yours is mine." You pay the premiums when you don't need coverage, and we'll keep your money and ours when you do.

Bad faith denial of insurance claims must be countered with immediate and aggressive action. Your insurance policy may have a time limit within which an internal appeal of a claims denial must be taken. Every state has statutes of limitations. Sooner or later if you are wrongfully denied and fail to pursue your rights, you will lose them. The good news in Massachusetts is that insurance companies that engage in bad faith settlement practices are subject to the Consumer Protection Act ("chapter 93A") and a bad faith law that applies especially to insurance companies.

If an insurance company is found to have engaged in bad faith practices, it can be subject to multiple damages and attorneys fee. Bad faith can include denial of coverage when the plain language of the insurance policy requires coverage. It can also include such favorite insurance company practices as offering less than a claim is worth in order to pressure a financially strapped claimant to accept less than he is entitled to, or to deny an obviously valid claim, forcing litigation to obtain payment that should have been prompt and voluntary. Aggressive action when faced with bad faith insurance practices helps every insurance policy holder to obtain the value of his or her insurance purchase.

Originally posted at InjuryBoard by Ken Margolin

Pedestrian Accidents

Ken Margolin — Thu, 05 Apr 2007 07:00:00 GMT

A few years ago, the National Safety Council ran a television ad showing a deadly car crash, with the superimposed message, "he was right - dead right." I don't know if the ad stopped any accidents, but its message was undeniably true - when on the roads, drivers have to put safety over pride. Sometimes, the best course is to give the right of way to the car, that by rights, shouldn't have it. That advice is doubly true for pedestrians. In any collision with a car, the pedestrian loses.

The Federal Highway Administration reported that in 2005, the last year for which complete data is available, there were 4,881 pedestrian fatalities, from pedestrians struck by motor vehicles. Fellow Massachusetts lawyer, Christopher Early, writes a blog about pedestrian accidents in the city of Boston. In every location, impatience, speed, road rage, and plain old carelessness, account for the carnage. Even though the laws are generous to pedestrians, no one walking amongst cars and trucks can rely on their legal rights for safety. For example, in Massachusetts, chapter 89, Â§11 of the General Laws, provides that the driver of a motor vehicle may not proceed when a pedestrian is in the crosswalk ahead of him, even if the driver has a green light. I would not advise any pedestrian to presume that every driver will comply with that salutory law. A pedestrian must be wary even when a driver extends a courtesy on the roads. There have been many tragic accidents, some involving children, when an impatient driver behind a car that has stopped to let a pedestrian pass, and not knowing why the car has stopped, swerves around the good samaritan, striking the pedestrian.

Laws already in place to protect pedestrians, are probably sufficient, though I would not be surprised to hear a different point of view. What is needed on the driver side to reduce pedestrian injuries, more than anything else, including education as to the laws, is courtesy and patience. What is needed from pedestrians, is constant vigilance.

Originally posted at InjuryBoard by Ken Margolin

Teen Cell Phone Ban

Ken Margolin — Fri, 14 Sep 2007 15:35:00 GMT

California has banned cell phone use by drivers ages 16 & 17. The ban will include text messaging. Older drivers will be allowed to use hands free phones, but the ban for the teenagers will be total. While the legislation is positive and regrettably, too rare, it is insufficient. A number of studies have shown that even during conversations on hands free cell phones, drivers' reactions times were significantly reduced, and automobile accident levels increased. Multi-tasking makes for mediocre performance of many tasks, and can be deadly on the road.

For more information on this subject matter, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Ken Margolin

The Video Settlement Brochure

Ken Margolin — Fri, 22 Jun 2007 12:20:00 GMT

In a previous blog, I wrote about day-in-the-life videos. These are videos that film a severely injured plaintiff and capture vignettes of a typical day, in a 20 - 30 minute movie. If done properly, they can be shown to a jury at trial. Another tool that any lawyer representing a client with catastrophic injuries may consider, is a video settlement brochure. In the video settlement brochure, the company producing the video interviews the client, and key people in the client's life, to gain an understanding of the client's life before and after his injuries.

The video settlement brochure may interweave pictures of the client before his injuries, with interviews of loved ones, and day-in-the-life type vignettes of the client's struggles to perform simple, daily tasks, as a result of the injury. Some attorneys may worry that the video settlement brochure gives the defense too realistic a view of what the plaintiff's case at trial would be like if the video brochure does not result in a settlement. That shouldn't be a major concern if the witnesses to be interviewed have already been deposed. The video settlement brochure may convince the insurance company adjustor assigned to the case, that allowing the case to go before a jury is too risky, and that a reasonable settlement is the company's, as well as the plaintiff's, interest.

Originally posted at InjuryBoard by Ken Margolin

Don't Let your Rights Slip Away

Ken Margolin — Fri, 23 Mar 2007 17:40:00 GMT

Most people have heard the term "statute of limitations," and have a vague idea that it creates some kind of time limit for legal action. Many people do not realize, however, how devastating a statute of limitations can be when it expires and extinguishes the right to pursue a valid lawsuit. Victims of a serious injury, or their family members, often suffer a type of emotional numbness when it comes to considering whether negligence caused the death or injury, and whether an attorney should be retained to investigate, and if appropriate, file litigation. Delay in pursuing a serious personal injury case, can harm the case even if the statute of limitations has not expired. Witnesses may forget details, die, or move away. Key evidence may be lost, through inadvertence or intentional destruction. Once the statute of limitations expires, though, the right to pursue the case, regardless of how valid the case may be, is forever lost.

Every state has statutes of limitations, that vary according to the type of case. Atlanta InjuryBoard partner, Richard R. Schleuter, writes an informative blog on the Georgia statute of limitations. In Massachusetts, the statute of limitations for medical malpractice and general personal injury cases, is three years from the date of the incident or malpractice that caused injury. There are different rules for minors and people under disabilities. In some cases, the three years may be extended by what is known as the "discovery rule." This rule suspends the start of the three year period until the injured party knew or reasonably should have known of the negligent act. While the discovery rule can sometimes be employed to save a case that seemed extinguished by the statute of limitations, assertion of the principle is a poor substitute for filing a case on time. No one should be skeptical when they hear an attorney say that the best time to seek counsel after a serious injury due to another party's negligence, is as soon as possible. That sound advice is in the best interest of the client. And by all means, be aware of statutes of limitations in your state. Don't let the time to file a legitimate lawsuit, expire.

Originally posted at InjuryBoard by Ken Margolin

Real Tort Reform

Ken Margolin — Sun, 17 Dec 2006 12:30:00 GMT

I grudgingly give credit where it is due. The insurance, big corporate cabal, has run one of the most brilliant public relations campaign in the history of duping the American public. Their first ploy was the one most essential in any media campaign - they captured the linguistic high ground. Everyone believes in reform in the abstract, and the forces who want to eliminate the rights of Americans injured by corporate and professional negligence, made the phrase "tort reform" their own.

Even plaintiffs lawyers who should not be lulled, rail against "tort reform," unwittingly granting the phrase to the anti-justice movement. During the last decade or so, the anti-justice forces have persuaded millions of Americans, potential jurors all, that fairly compensating victims of corporate greed or medical incompetence, handicaps this country in the global marketplace, and is almost anti-American. The anti-justice group has pounded out an ongoing message that many plaintiffs are frauds and cheats; this big lie has caused many jurors to impose a mental barrier of mistrust that legitimate plaintiffs must overcome. Worst of all, the anti-justice campaigners have achieved real success in many state legislatures, limiting the rights of victims of even grotesque medical malpractice or defective products.

The much maligned plaintiffs' bar took awhile to gain momentum in its counter-campaign, but has now gained some traction, has stemmed the bleeding, and has the chance to reverse some of the worst affronts to elemental fairness. Real tort reform would acknowledge the greatness of the jury system, with its occasional flaws and all, would respect our own great justice system, and would elevate the common man back to equality with the wealthy and powerful.

Here is what a real tort reform platform would look like: (1) roll back the disgraceful legislation that limits compensation for pain and suffering to people whose quality of life has been impaired by the negligence of others; (2) repeal as well statutes that interfere with the right to contract by limiting attorneys fees, as a cynical way to make it impossible for many victims of negligence to find attorneys able to afford accepting their cases; (3) impose harsher penalties on the common defense tactics of withholding documents, over-cueing defendants during depositions, and abusing the discovery process to wear down plaintiffs; (4) provide enough money for state court systems so that any tort victim can be assured of a trial within 36 months - a modest goal, still beyond the reach of many plaintiffs in many states; (5) expand, not contract, the ability of juries to award punitive damages when they find gross negligence or intentional disregard of dangers in products or practices.

That's tort reform. What the other guys are selling is an anti-justice campaign, which is the label we should give it, in a message we should tenaciously spread to the public.

Originally posted at InjuryBoard by Ken Margolin

More Insurance Company Fraud

Ken Margolin — Fri, 06 Jul 2007 11:05:00 GMT

Several days ago, I posted a blog on bad faith denial of claims by insurance companies. I don't usually write blogs on the same topic within several days of each other, but I must comment on the superb reporting on insurance company bad faith, in this month's issue of Trial magazine. Trial is the journal of the American Association for Justice, the plaintiffs' trial lawyers association. The issue highlights intentional campaigns by the insurance industry to raise profits by denying valid claims and delaying payment to pressure policy holders to accept low ball offers.

Amongst the most shocking incidents of insurance company fraud reported are claiming poverty and threatening to leave states, amidst record profits, forging signatures on earthquake waiver forms after a major California earthquake in 1994, deceptively obtaining statements by Hurricane Katrina homeowners that their homes had been damaged by "flood" (as opposed to the hurricane), because wind and rain damage were covered, while flood damages were not, using catastrophes to raise rates and dramatically increase profits, independent of actual increased risk of loss. The greed is astounding. Legislatures appear too weak to stop the insurance industry cabal. Once again, it is left to the maligned plaintiffs' trial bar to right the balance.

Originally posted at InjuryBoard by Ken Margolin