Pennsylvania Injury Law Report : Pennsylvania Personal Injury Lawyer & Attorney : Stuart Carpey Law Firm : Auto Accidents & Product Liability : Pennsylvania Injury Law Report

What's the first thing the other guy's insurance company representative will want from you after a car accident?  He'll want to take your recorded statement about the accident and your injuries.  He'll also want you to sign a medical authorization so that the insurance company can get all of your medical records all the way back to when you were in elementary school. He might even offer you money to settle your case, and in exchange he'll want a "full and final release."

Some  Pennsylvania accident victims are catching on. When the adjuster asks them for a statement, they turn it around on the insurance adjuster and ask if they can take the statement of the insured driver who was at fault . (Of course the insurance company won't allow that). 

One of my clients (who came to me after she got tired of the shenanigans of a State Farm investigator) told me that when the State Farm investigator started asking her about prior accidents and  injuries, she insisted upon knowing how much bodily injury coverage limits the State Farm insured carried. Now that's clever.

I have another client who told me when the Nationwide adjuster insisted that his car be repaired at a "certified" Nationwide repair shop, my client began asking what type of money on used parts Nationwide would save if the car was repaired at the "certified" repair shop as compared to another auto repair shop not "certified" by Nationwide. At that point the Nationwide adjuster backed off and explained that my client could get the car repaired where he wanted and Nationwide would have to pay no matter what the cost.

Here's the jingles we all hear on television and see in print media.

Allstate: "You're in good hands"

State Farm: "State Farm is there"

Nationwide: "Nationwide is on your side"

Geico has the gecko and the Neanderthal.

Progressive has the catchy TV commercials with Flo. All Flo promises is what the Progressive policy provides for; that is, what the insured paid for.

But, now more than ever consumers need to realize that these companies have no interest in protecting you following an accident. They are profit driven, nothing more and nothing less.

If you're not sure what to do if you've been involved in an accident and the insurance adjuster is knocking at your door, seek out the advice of a qualified personal injury attorney, whether it's our firm or another firm. There are plenty of good law firms in Philadelphia and the surrounding areas who handle personal injury cases. The point is, be smart. Don't rely on what the insurance company is telling you.

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Anybody who is crazy enough to lie on their car insurance application about where they live in order to get lower rates has to read this article written by Diane Marshall of the Philadelphia Inquirer this week. In Ms. Marshall's words,

Pennsylvania Attorney General Tom Corbett's continuing investigation into insurance fraud has resulted in another round of arrests - 24 people accused of falsely claiming to be state residents in order to obtain lower rates on their automobiles.

Using a phony address for lower rates is known as "rate evasion." Urban areas like Philadelphia have higher rates than suburban areas, because of more accidents. So, the insurance companies can charge higher rates.  In the Inquirer article, most of those arrested were from the New York City area claiming suburban Philadelphia addresses. 

A better idea for getting lower rates on your auto policy? Shop around. Start by going to the Pennsylvania Insurance Department website and taking a look at all the insurance carriers who write auto insurance in Pennsylvania. Then give them a call to see what their rates are for the geographic area where you live.

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Unlikely. But Jennifer Smith, whose mother, Linda Doyle, was killed last year by another driver who was distracted because he was talking on his cell phone and ran a red light in Oklahoma City is testing the theory. The reason she can’t win the case is because Sprint-Nextel, whose cell phone service the defendant driver was using at the time, owed no direct duty to Jennifer Smith’s mother. The driver of the other car, 20 year old Christopher Hill, owed a duty Mrs. Doyle, to operate his vehicle in a prudent and reasonable manner. We all owe that duty to each other when we are driving on the road. When that duty is breached, it gives rise to a claim for negligence. Without the duty, there is no negligence.

What’s really going on here is that the negligent driver didn’t carry enough liability coverage on his auto insurance policy,  or failed to carry any coverage. As such, when Jennifer Hill made a claim to Hill’s auto insurance carrier for the death caused by Hill (ie: a personal injury case on behalf of the estate of Linda Doyle), assuming he had some coverage, the carrier probably paid their minimal policy limits. Jennifer Smith’s next step was to make an uninsured motorist claim (UM) through her mother’s auto insurance policy or underinsured motorist claim (UIM). That policy either didn’t carry any UM or UIM coverage, or carried a minimal amount.

The lawyer on behalf of Mrs. Doyle's estate and on behalf of Jennifer Smith  is clearly looking for another source of funds from which to compensate Ms. Smith for the death of her mother. It is an otherwise viable approach, but one that will ultimately fail.

I preach to consumers that they must maximize their UM and UIM coverage. The whole idea of any insurance investment is to use it as a tool to protect yourself and your family. If Linda Doyle had carried sufficient amounts of UM and UIM  coverage, Jennifer Smith and her lawyer would not have had to make a tenuous claim against Sprint-Nextel.

We’re talking about personal responsibility here. Tort cases, (that is, negligence cases), are frequently targeted for discouraging lack of individual responsibility - the theory being that if the courthouse is open to all sorts of legal wrongs, the party suing can look to others for his injury before accepting responsibility for his own actions.

But in reality, the tort law system encourages personal responsibility for wrongs committed in the community. For instance, enforcing negligence claims against drivers using cell phones and being too distracted to operate a vehicle safely is by definition enforcing personal responsibility, on the defendant driver. So too is encouraging consumers to purchase sufficient amounts of insurance coverage, particularly UM and UIM benefits, so that they and their families are financially protected against the careless acts of negligent drivers.
 

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Thomas Killino, a former assistant district attorney in Luzerne County, testified last week in front of a special panel investigating judicial corruption in Luzerne County on the part of former Judges Mark A. Ciavarella and Michael T. Conahan. I’ve reported on the goings on in Luzerne County before.

This is from an article written by Philadelphia Inquirer reporter William Ecenbarger. This is what Killino said and how members of the investigating panel responded to what he said.

"We trusted the judge," said Thomas Killino, a former assistant district attorney when asked why he did not challenge many of Ciavarella's actions, including illegally obtaining forms from young defendants waiving their right to a lawyer. Much of the questioning centered on why prosecutors, probation officers, and public defenders did not challenge Ciavarella's failure to explain to defendants the consequences of waiving their right to counsel and of pleading guilty. This process, called a colloquy, is required by state court rules.

"Did it ever bother you that there was no colloquy?" asked George D. Mosee, head of the juvenile division of the Philadelphia District Attorney's Office.

"It was a fast-paced environment," Killino replied. "This was the established practice of the court. Everyone went along with it."

Mosee, who oversees the prosecution of about 10,000 juveniles a year, added: "I've never prosecuted a child who didn't have an attorney. How do you handle it?"

Killino said he was told that the defendants had signed written waivers outside the courtroom and that he believed those overrode the requirement for a colloquy in open court to determine that the juveniles understood that they had a right to an attorney.

When Killino confirmed estimates that more than half the child defendants who appeared before Ciavarella did not have attorneys, Judge Dwayne D. Woodruff asked him if he had ever read the juvenile law that required them to have counsel.

Killino said he had read parts of the law but not the entire law.

Later, Woodruff said he had heard about 4,000 juvenile cases and every defendant had a lawyer. Judge John C. Uhler asked Killino if there were instances when defendants without lawyers were sentenced without ever speaking in their own defense. Killino said there were, and that in those cases Ciavarella would move right on to sentencing in a matter of minutes. Later, Uhler said that in his 20 years as a juvenile court judge, no defendant had ever appeared before him without an attorney.

Killino testified that he and other prosecutors did not have enough information available to them to determine whether a sentence from Ciavarella was unduly harsh.

"Didn't you want to know?" demanded Jason D. Legg, a commission member who is a prosecutor from rural Susquehanna County. "It was not part of our purview," said Killino.

Later, Legg said he prosecutes hundreds of juveniles every year and they always have legal representation.  

How does this apply to your lawyer in charge of your personal injury case? You should question your lawyer periodically throughout the pre-litigation period of your case, as the case is litigated (meaning after suit is filed) and pre trial. Ask your lawyer pointed questions about the facts of the case. Is he or she familiar with your case when you speak to your lawyer on the phone. Has your lawyer fully and completely read the laws that apply to your case?

Mr. Killino was in a position of power. Maybe not to the same degree as the judges who uniformly sentenced the juveniles who appeared in their courtrooms. Still, as an ADA, Killino owed an obligation not just to the juveniles he was prosecuting, but to the judicial system as well. His client was Luzerne County and its citizens. The duty he owed to his client was to read and know the laws that applied to juveniles being sentenced without legal counsel. The fact that Killino was familiar with the law but not completely versed in the law is inexcusable.

He, and others who appeared in Ciavarella’s and Conahan’s courtrooms, did not want to rock the boat. It’s hard to be a whistleblower. But here there was no excuse.

Your personal injury lawyer should provide the benefit of his or her expertise, value to you in the handling of your case, leading to a satisfactory result and a solution to your legal problem. To do so your personal injury lawyer has to be able to provide you answers to your questions. He has to assist you in the decision making process in your case. If your lawyer can't do that, then get yourself a new lawyer. If your lawyer is familiar with the laws that apply to your case but is not completed versed in those laws and the updates to the laws that apply to your case, get yourself a new lawyer.

Just because there is a fancy degree on the wall of your lawyer's office doesn't mean he's informed. Thomas Killino is a good example of that.
 

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This is one crazy story which recently received national attention. John Wagner, 24 and Leslie Pope, 22, were charged with theft after they refused to pay a $16.35 gratuity automatically added to the bill by the Lehigh Pub in Bethlehem, Pennsylvania.

The couple, dining with a group of friends, claimed they waited more than an hour for their meal, and had to go to the bar to get  drinks refilled and pick up their own silverware. When they left without paying the tip, the restaurant  manager called the police who arrested the couple. The Northampton County District Attorney later dropped the charges.

There are many lessons here. First, terrible marketing on behalf of the restaurant. That's a given. Who would ever want to go to that restaurant?

Having said that, it can be tough as a waiter or waitress. Having waited tables in college, I know that sometimes bad service is a direct result of what's going on in the kitchen. Nevertheless, the waiter or waitress is the one that is penalized if a meal comes out slow from the kitchen. It sounds like there was more than that going on in this story however.

All I know is that as a personal injury attorney, I don't get  paid in gratuities. In fact, I don't get paid unless I obtain a successful settlement for my client, or try the case to verdict and win. That is the nature of the contingency fee relationship I have with my clients. In addition, I have to pay all of the costs to finance to prosecution of the case!

I wonder how the restaurant industry would do if customers decided at the end of teach meal whether to pay for the meal itself, let alone the tip?

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Betsy McCaughey wrote an interesting article in The Wall Street Journal recently (October 29, 2009) in which she interviewed various physicians to get their their take on the health care reform debate. Dr. Seymour Cohen, an oncologist,  said the following in the article regarding the issue of shifting resources from specialty to primary care.

Dr. Cohen: "Let's talk about specialization for a moment. . . . We don't go to our general attorney when we have a patent problem, but they're telling us to do this now in medicine. We have different types of engineers, even journalists. There's a financial writer, there's a sportswriter . . . . Now in health care we're telling everybody, 'you just go to the guy who's your general doc. He's going to know everything and maybe we'll find a specialist for you if the panel decides maybe you're sick enough to need a specialist.' It really doesn't make sense at all."

In a letter to the editor a few days later Rebecca M. Patton, MSN, RN,  President of the American Nurses Association wrote in response:

"Currently, the system is built so that health-care providers can charge for each test and procedure performed, instead of being rewarded for the overall care of the patient.  We need to re-form the health-care system away from the nation's current emphasis on (more costly) acute care come up to one that focuses more heavily on providing primary and preventive care, or more bluntly-to treat the patient rather than the illness.  This does not eliminate specialist care when it is needed.  However, better primary and preventive care would greatly reduce the demand for costly specialist care."

Specialists physicians are not used to being  targets in the health care cost -reduction-debate.

However, the flaw in Dr. Cohen's argument is that he does not mention that he gets paid by a gatekeeper. It doesn't matter if the gatekeeper is an insurance company or the government (Medicare). He, or any other physician specialist, has to please the gatekeeper, or he doesn't get paid. In exchange, the physician specialist gets a guaranteed rate of pay for a set procedure code (and a steady stream of patients). 

Not so with the comparative professions he uses by way of example, be they attorneys, engineers or journalists. I get paid directly by my clients, not from an insurance company. A sportswriter gets paid directly for the paper he works for. That allows for a certain amount of flexibility. I can choose the types of cases I want to work on, and the journalist can write on the subjects he wants to. To get paid I don't need to complete a health insurance claim form and wait for approval by the insurance company before they issue payment. On the other hand, I certainly am not guaranteed a steady stream of clients.

It's not that I don't sympathize with the plight of the specialist physicians. But I agree with Nurse Patton. To lower health care costs we must have a system in place that treats the whole patient first. Certainly primary care/general practice physicians, underpaid for the work they do under the present system, will be the financial beneficiaries of such a change. But that GP isn't going to be performing knee surgery on a patient, so, as I see it, the specialist is safe.

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God bless the dittoheads-(blind followers of Rush Limbaugh logic).

Last Friday for about an hour in the first half of the Rush show they had something to cheer about. But then they realized Limbaugh got fooled by a blog post.  Limbaugh reported that his researchers had discovered that  Joe Klein, a Time Magazine reporter, had unearthed ten pages from a college thesis, not the complete thesis mind you, in which President Obama allegedly wrote, as an undergrad student at Columbia, that the Constitution was a rag designed to enslave the masses and that the founders were behind the conspiracy to do so. The whole thing turned out to be a hoax by a blogger.The problem for Limbaugh was that he only found this out halfway through his show.

This is what he said when he found out that the basis of his ravings about Obama that day, which basically consisted of telling his audience that Obama was not patriotic enough to be qualified as President, were untrue.

Limbaugh must know President Obama quite well, right? He has to  know what's in the President's heart, right? Obama could have written something like the thesis and probably has, (even if the thesis turned out to be a joke pulled on Limbaugh) according to the Limbaugh logic.

Limbaugh actually said when he realized he'd been had:

"So, I can say, "I don't care if these quotes are made up," "I know Obama  thinks it. You know  why I know Obama thinks it? Because I've heard him say it."

Ah, the dittoheads have to suffer on.

Really I just wanted to put the Limbaugh non apology /non mea culpa audio on my blog. I couldn't resist.

I have tried to tie this in somehow to my areas of practice, or to litigation generally, so hear goes a few comparisons. True stories from recent cases I've been involved in.

• A defendant in a car accident case testifies at a deposition in which she admits rear-ending my client that "it was barely a tap..I didn't even know I hit her." The defendant couldn't understand how my client got hurt. This despite the fact that there was extensive rear end damage to my client's car and extensive front end damage to the defendant's car, and that my client had to be removed from the scene by an ambulance.

• "I know that I cleared the sidewalk of ice. It was in real good shape. When I left Friday I threw some salt down." That's what a defendant store owner testified to at his deposition in a fall down case in which my client fractured her leg requiring surgical repair including the placement of metal plates and screws to put the bones back together.  The fall occurred on a Monday night. The store owner never returned to his property to inspect it, put more salt down or shovel the sidewalk until Tuesday morning. The snowfall came down on the prior Wednesday, five days before the plaintiff fell.  Fall down accidents can be difficult cases. In this case, there was actually a videotape showing my client walking from the bus stop over a mound of snow, at night, following the heavy snowfall a few days before, and walking on a clear portion of a neighboring sidewalk before stepping onto the defendant's sidewalk which had a narrow path which turned out to have been covered in a thin layer of black ice. Everybody in the neighborhood and particularly in the area where the plaintiff fell  had managed to do a pretty good job of clearing the sidewalk, except this defendant. Somehow, in his mind, the condition of his sidewalk on the night in question wasn't his responsibility.

• A defense attorney  files a brief with the court alleging that he is entitled to my personal notes from a focus group which I hired pre trial to evaluate my client's case. The problem is, the law is crystal clear that my notes are protected attorney work product that the defense attorney would never be entitled to get his hands on.

None of these stories compare to the Limbaugh defense of "I think it therefore it must be so." I guess the lesson to litigants and those involved in litigation generally here is fess up if you what you are saying won't hold up. Credibility is a very powerful tool. Use it to benefit you. Take a lesson from the flawed logic of Rush Limbaugh.

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ARE YOU CRAZY!?

That's what I yelled to a young woman driving in the left lane heading west on the Schuylkill Expressway yesterday at around 3:00. I was in the right lane. She had earphones on. I guess she was listening to her ipod.

Her hands were not on the steering wheel.

That's because she was texting while she was driving.

She was driving an '04 or '05 Honda CRV. I have an '04 Honda CRV. That's what I was driving. Love the car. It's a mini SUV without any bells or whistles and gets good gas mileage. I like that. But to my knowledge it is not equipped with a special steering device such that you can steer the car with your knees. Maybe she was experimenting with that theory. At 60 miles per hour.

I rolled my window down when I yelled at her. Her's remained up. I think I said something more than just- ARE YOU CRAZY!? I won't repeat that here. She got the point. But not right away. Because as I let her pass me I saw she was still texting. It appeared she had exceptional thumb skills. So I pulled up along the side of her again. At 63 miles per hour. I stared at her for a second. We made eye contact. She stopped texting. She wouldn't look my way again. I exited at Conshohocken and she went on towards King of Prussia. Maybe she resumed her highway texting further on down the road.

This was not the first time I've seen this. A few months ago I was in the right lane, again on the Schuylkill Expressway, and an SUV is passing me on the left. The guy driving was texting. His wrists were on the steering wheel, so his cellphone was above the steering wheel, and I could see he was focusing on the phone, and then glancing at the road. He was passing me in the left lane. I had to be going 60. He had to be going 65. He had a little boy in the front seat. Another guy was in the back seat.

How stupid are these people!

As a driver witnessing this what are you supposed to do? I don't know. Call 911 on your cell phone so the State Police can be notified? I guess, but by the time the police get on the highway the crazy texting driver will be long gone. Steer clear? Sure.

Melissa Heckscher of the Paramus Post wrote the following story in November 2006. Pretty much sums it up.

But because text messaging is a newer phenomenon, having become popular in the past two to three years, drivers' safety studies have focused on using the phone to talk, not to send messages. So which is worse?Without concrete data to go on, researchers such as Steven Yantis, a cognitive psychologist and professor at Johns Hopkins University in Baltimore, ventured a guess.

"Common sense would tell me that (texting) would be worse because you have to look away from the road," he said.

Yantis is an expert in multitasking. His research has centered on what happens in the brain when people try to pay attention to multiple sources of information. Yantis hasn't directly researched the effects of multitasking while driving, but the bottom line is this: When attention shifts toward one area, it drifts away from another.

"Most people think they're better at multitasking than they really are, and that's because most of the time, errors have no consequences," he said. "When you're driving, even half a second of distraction could, at the right circumstances, have disastrous consequences."

Just ask Patrick Sims. In 2005, the then 17-year-old Colorado resident struck and killed a bicyclist while tending to a text message. His sentence included nine days in jail and 300 hours of community service to be spent telling others his story."That day, that text message seemed important to me," Sims told The Denver Post. "Now I couldn't even tell you what it said."

That same year, a 26-year-old Tennessee man died after he reportedly lost control of his truck while trying to send a text message.

"When you're texting, you're having to do a manual task and a visual task," Yantis said. "That has to be worse than just talking on a cell phone."

Teenagers are at particular risk. A survey by the Liberty Mutual insurance company found that teens rated text messaging as the greatest driving distraction, followed by their emotional state and having several friends in the car at the same time.

In the words of California Highway Patrol Officer Joe Zizi, quoted in Ms. Heckscher's article: 

"People will say, 'I'm sorry, I was on my cell phone, I didn't realize how fast I was going. God forbid you crash and kill someone. Are you going to tell that to the family of the deceased?"

Is there a place for cellphones in the car? Yes, the center console or glove compartment. I know that sounds unrealistic. You get in your car. The cellphone is in your pocket or in your pocketbook. You want it out and available for all sorts of reasons. Maybe your kids are calling wanting to know what's for dinner, or they need help with their homework. Maybe you're waiting to close an important business deal.  But the statistics on cellphone use while driving leading to bad accidents are just too disturbing. Add texting? Forget about it.

Cellphones are undoubtedly a valuable tool to have in your car in the event of a mechanical breakdown, illness, or driving emergency. We want to be able to reach it quickly if we need to. But how important is that incoming call?

That young woman on the Schuylkill driving next to me thought she was safe; she thought  that she had extra skills, like some character out of the movie The Matrix. No way. She was just kidding herself.

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Wolf Blitzer is a professional interviewer. He has  prepared questions.  He listens to the response that  he gets to his questions and uses the response to formulate his next question. That's what he did when he interviewed Richard Heene, the Colorado father of  6 year old Falcon.  Wolf was exploring the issue of whether the report by the Heenes that their son was trapped in a balloon was all a publicity stunt. Falcon was found hiding in the family's garage last Thursday after the family reported that they feared he had disappeared and was floating around in a homemade helium balloon, flying 50 miles through the sky.

Watch  Mr. Heene squirm when he is asked to comment on his son having just said on camera "you guys said that we did this for the show. " The boy was answering the question raised by Wolf of why he just did not come out of the garage attic when he heard his family calling for him. The father barely looks at the camera. His wife also looks a bit worried.

Litigators are professional interviewers, like Wolf Blitzer. They come prepared. They have background on the person they are deposing. I'm quite sure Wolf had background on the Heenes. Lawyers who litigate for a living are like electronic lie detectors. They can smell when someone is not being truthful.

Now the Heenes are being charged with crimes related to what appear to be false reports about their son's supposed flight on a hot air balloon. They may be completely innocent.  Time will tell. Right now it sure doesn't look good for them. But you don't have to be an expert in body language to see that the Heenes were unsure of themselves and worried about what their son had said and what they had said, or might say, on camera. They were being scrutinized. Not unlike what happens at a deposition.

Lesson here? Tell the truth at your deposition.

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