Federal Regulators Turn To Vehicle Manufacturers To Limit Distracted Driving

Widespread use of hands-free vehicle navigation and infotainment systems have become the new focus of regulators in an attempt to limit distracted driving. New guidelines were issued this month that are intended to make it harder for drivers to become distracted from these devices in new cars, but automakers fear it could backfire and encourage drivers to turn to their smartphones.

 According to an article published on April 23, 2013, in USA Today, the guidelines were issued by the National Highway Traffic Safety Administration and are voluntary, but widespread adoption is likely. Car manufacturers will be urged to restrict any system that allows drivers to push buttons or manually input addresses while the vehicle is moving.

 Some automakers, such as Honda, have already taken the initiative and implemented voice activated navigation systems that won’t allow manual input when the car is in drive. Other automakers, like BMW, encourage the use of voice activation controls but still allows drivers to make manual inputs when the car is moving.

 Although government has no plans to penalize those automakers who do not meet these guidelines when they take effect in three years, liability concerns could lead companies to comply nonetheless. According to Michigan plaintiff lawyer (and former Chrysler engineer) Wolfgang Mueller:

If a driver crashed while operating a navigation system, there would be a ‘good case’ against that automaker.The first rule of safety engineering is to design out the hazard. Clearly this is reasonable, since most every other car maker has disabled their system when the vehicle is in gear.

 I couldn't agree more. These guidelines will soon serve as the standard of safety for automakers across the U.S. and could mean more lawsuits brought against manufacturers who refuse to implement them in the near future
 

Video Interview: Discussing Driver Fatigue in the Commercial Trucking Industry with LXBN TV

Following up on my post on the subject, I had the chance last week to speak with Colin O'Keefe of LXBN regarding driver fatigue in the trucking industry. In the brief interview, I explain the root of the problem, just how bad it's become and what must be done to combat it. 

Greed And Fatigued Driving In The Trucking Industry Leading To More Accidents

Long hours of driving by truckers, demanded by their employers, constitute a national safety crisis for all of us who share the road with the big trucks. We need the truckers to deliver our Ipads and oranges, but the cost is too often injury, death and disaster.

Is the trucking industry regulated by the Federal Government?

The rules and regulations truckers and trucking companies must follow are mandated by the FMCSA (Federal Motor Carrier Safety Administration).

What is the problem all of us face on the road when it comes to fatigued drivers?

The commercial motor carrier industry frequently violate the rules when it comes to their drivers, requiring their truckers to push the limits of safety by not allowing their drivers enough rest on the road. The industry and their drivers are obviously motivated by money. Quicker deliveries mean more profit to the company, and better pay to the driver. The federal government, truck drivers, dispatchers, company owners and safety compliance officers at trucking companies are and have been acutely aware of the problem of fatigued drivers, but violations of the rules continue.

How are truckers supposed to use logbooks?

Truckers are required to keep logbooks identifying their rest and sleep periods on the road. Logbooks are, in fact, frequently falsified. Yet even if those logbooks are accurate and the driver is in technical compliance with the rules, depending on the individual driver's other medical conditions, the FMCSA rules can still be violated. In such a case, punitive damages stemming from a negligence case are possible. So, for instance, a driver with sleep apnea, or who takes medication to assist in sleep, may be in violation of the rules.

The safety problems that the trucking industry impose on non commercial drivers on the road are diverse. What is clear is that despite federal regulation, serious injury cases from trucking accidents are not going away.

Virtual Simulators Demonstrate Risks of Distracted Driving to Skeptical Teens

In 2011, the Center for Disease Control and Prevention (CDC) conducted a survey of over 15,000 teenagers nationwide, asking them questions on the topic of distracted driving. Of the thousands polled, 58 percent admitted that they use their cell phones while they drive, either for texting, emailing, or surfing the internet. With over 3,000 lives lost to distracted driving related accidents in 2010, can we afford to let our teens underestimate the risks of texting while driving?

No, we can't. Which is why more states should follow the Ohio Department of Transportation's lead and invest in some of the current innovations in distracted driving education, such as the simulator One Simple Decision, a creation of Virtual Driver Interactive Inc.

One Simple Decision is a driving simulator which places teens in a virtual reality distracted driving crash, taking them through the impact of the crash and ensuing interactions with police and medical personnel. Teens start by simply driving down the road on the simulator and, after time, are prompted to pull out their cell phones and start texting someone. The teen driver subsequently veers off the road and is involved in a crash -- often a collision with another driver -- which results with live-action footage of a police officer approaching the car and questioning the driver.

The One Simple Decision simulator takes an abstract concept and makes it real for teens, demonstrating firsthand the real-life consequences of distracted driving. The idea is a refreshing way to impress upon our nation's youth the growing danger posed by driver distraction in the U.S. And Virtual Driver Interactive Incorporated's post-simulator surveys have shown promising results: more than 80 percent of teens who participated in One Simple Decision resolved to never text and drive again. Maybe "never" is an unreachable goal, but the very fact that teens are becoming aware of this danger is a step in the right direction.

For more information on technology which aims to reverse ongoing distracted driving accident trends, see some of the articles on the Kreithen, Baron & Carpey website, like our article, "The Fight Against Distracted Driving Moves Forward -- New Initiatives, New Technology Hope to Quash the Texting Epidemic." That article describes new gadgets and mobile apps which inhibit a driver's ability to use his or her cell phone while at the wheel.

Chamber Of Commerce Complains In West Virginia

So should Pennsylvanians care?

Here's why we have to be concerned about what the Chamber of Commerce is complaining about in West Virginia. There is a nasty legislative fight going on there concerning a piece of legislation that would require insurance carriers to provide the amount of  their insured's bodily injury policy limits to personal injury claimants and their attorneys before suit is filed. Proponents of the bill, such as West Virginia House Judiciary Chairman Tim Miley, take the position that the objective of the bill is to reduce litigation. Getting policy limits information pre-suit is relevant information that is typically not disclosed by insurance companies until suit is filed. In other words, why force a lawsuit just to obtain the information?

I agree with Miley and here's why.

In Pennsylvania, if I represent someone injured in a car accident , as in West Virginia, the opposing insurance company is not required to disclose their insured's policy limits unless and until suit is filed by me on behalf of my client. In reality, obtaining the amount of the defendant's coverage is largely dependent on a number of factors, including:

  • Which insurance company is involved;
  • The level of experience or lack thereof, of the insurance representative assigned to the claim;
  • The degree of injuries sustained by the plaintiff;
  • The amount of unpaid medical bills incurred by the plaintiff;
  • The amount of wage loss incurred by the plaintiff;
  • The county where suit will be filed.

State Farm and Allstate will rarely if ever disclose policy limits pre-suit. American Independent invariably only writes polices for the minimum amount of coverage, $15,000. If it's a Chubb Insurance Company policy and the defendant lives on the Main Line, more than likely it's not a $15,000 policy, but rather a much larger policy.  If the defendant is a business, there will be a commercial policy with at least $1,000,000 in coverage. 

So, some things we know going in, whether or not suit is eventually filed.

There are many cases where I am forced to file suit, only to receive a telephone call from the defense attorney assigned to the case immediately after the lawsuit is served on the defendant, and he or she will tell me the amount of the defendant's policy limits. They have to at that point. It is discoverable information under the Pennsylvania Rules of Civil Procedure. There's no reason to hide that information any more.

Does holding back the amount of an insured's bodily injury limits accomplish anything? No, it does not.

The Chamber and their political cohorts see it differently. The Chamber goes out of its way to oppose anything pro-consumer. And, as succinctly stated by Max Kennerly in his recent blog post, Chamber of Commerce Swings And Misses At Plaintiffs' Lawyer Advertising:

Don’t kid yourself that the U.S. Chamber of Commerce cares the slightest bit about small business. The Chamber is the most anti-free-market lobbying group in the country, an organization dedicated to ensuring the biggest corporations in the country stay that way, squashing small businesses and regular people alike.

Max's post points out that the Chamber essentially posits that lawyer advertising should be limited, restricted, monitored more so than other businesses. He criticizes, correctly so, a recent "study"  by the Chamber's research arm, The Institute For Legal Reform  which stated:

The plaintiffs’ bar contributes to the commercialization of the legal profession by using a sophisticated and complex combination of paid search advertising and high organic search optimization of websites to generate site traffic – all with the goal of collecting the personal contact information of potential plaintiffs.Plaintiffs’ firms are devoting millions of dollars to the creation and maintenance of websites, Facebook pages, Twitter handles, blogs and YouTube channels.

No doubt Plaintiff's attorneys are spending money on online marketing. So are other attorneys. So are other businesses!

The Chamber's position is that lawyers should not be as free to market online as other businesses. Guess what? Lawyer advertising is restricted already. How we advertise, what we say, and how we say it is already controlled and restricted by the Bar in each individual state. No other business is restricted in how they advertise, but lawyers are.

As far as I am concerned, the more information that is available to the consumer the better. I am much more concerned about someone who lets their personal injury claim lapse because of lack of knowledge of the statute of limitations (the kind of information freely and readily supplied on my website as well as on other plaintiff lawyer websites) than of lawyers spending money to create an online presence.

The Chamber doesn't view things that way. The less information the public has, the better positioned big business is to prevent the filing of lawsuits seeking compensation for legitimate claims for damages.

 

Stuart A. Carpey Helps to "End Distracted Driving"

For years, Stuart A. Carpey has been an active member of Teens Against Distracted Driving (TADD), a program which aims to educate teens on the dangers of multitasking at the wheel. Now, in addition to these efforts, Stuart is teaming up with End Distracted Driving (EndDD.org) to do even more in the fight against accidents caused by inattention.

EndDD.org is a non-profit organization dedicated to reducing the number of auto accidents caused by driver distraction. The organization was founded in 2009 and has been expanding ever since, enlisting skilled speakers to spread the word about their cause. Stuart A. Carpey is now one of those speakers.

If you know of any group, community organization, or school which you feel could benefit from a presentation on the subject of distracted driving, please contact Stuart at scarpey@carpeylaw.com. He speaks on the subject free of charge. His presentations are compelling and important for teens and adults alike.

You may be aware that the largest culprit for this growing danger is the use of cell phones--particularly texting--at the wheel of a car. But there are more ways to become distracted than just using your cell phone. Here are the three major forms of driver distraction:

Visual Distraction -- Occurs when you take your eyes off the road.
Manual Distraction -- Occurs when you take your hands off the wheel.
Cognitive Distraction -- Occurs when you are taking your mind off of driving.

Cell phone use distracts drivers in all three of these ways, which is why it has become the primary focus in anti-distraction campaigns led by organizations like TADD and EndDD. But you should keep in mind that any activity which causes a driver to be visually, manually, or cognitively distracted is a serious danger to everyone on the road. These distractions can include applying makeup, reading a map, changing radio stations, holding a pet while driving, and even eating.

If you feel that distracted driving is an issue which requires attention, ask Stuart A. Carpey to come and speak at your school, office, or other organization. Remember: The best way to fight the spread of accidents caused by distracted driving is through increased awareness.

How Long Should I Continue To See My Doctor After An Accident?

 

How long should I continue to see my doctor after an accident?

As long as you, the victim, are having on-going complaints related to the accident, you should be informing your doctor about those complaints.

At the very least, your doctor is going to be making a record in his or her chart about your complaints, and you can present that list of complaints to the opposing insurance company. When the case goes to a juried trial, the jury will hear how long you went to see your doctor and what the complaints were over a period of time.

It is crucial that, as long as you have complaints related to the injuries of your accident, you continue to receive medical care.

Who Pays My Bills In A Personal Injury Case?

 

Who pays my bills in a personal injury case?

In a typical motor vehicle accident case, your own insurance company pays your medical bills. In a fall down accident, for instance, your health insurance coverage pays your medical bills. Clients frequently assume that the other person’s insurance company is responsible for paying all of their medical bills but that is not correct under the law in Pennsylvania. Rather, the other person’s insurance company is responsible for paying for your pain and suffering. That’s typically the larger portion of the case.
 

 

This Holiday Season, Keep Kids Alive: Drive 25

The following is a guest blog post by Tom Everson. Tom's organization Keep Kids Alive Drive 25 is dedicated to keeping our country's streets safe for children.

Drive to Keep Everyone Alive!

What is one gift we can give everyone while on the road during the holidays? The gift of safe driving behaviors. All we have to do to keep everyone alive is:

• Hang up and drive
• Don't drink and drive
• Buckle up everyone every trip - no matter the distance
• Observe speed limits, and slow down according to weather/road conditions
• Remember, it's not a race, so create space - give yourself time to react to what goes on around you.
• Observe traffic signals and signs. Stop! Take 3 to See at stop signs.

Have a safe holiday season.

Keep Kids Alive Drive 25®
www.KeepKidsAliveDrive25.org

National Transportation Safety Board Member Calls Texting While Driving the "New DUI"

With a steady rise in cell phone related car accidents, distracted driving is becoming more and more of a hot button issue among legislators and drivers alike. On Tuesday December 13, 2011, the National Transportation Safety Board (NTSB) urged states to put forth efforts to ban all cell phone use among motor vehicle drivers.

We recently reported on NTSB’s push for cell phone bans among commercial truck drivers following a devastating trucking accident which claimed the lives of 11 people in Munford, Kentucky. But an August 5, 2010 four-vehicle crash which resulted in two deaths and 38 injuries has motivated the board to urge a ban on all non-emergency cell phone use for all drivers.

Although the NTSB does not have the authority to legislate, the board’s unanimous recommendation promises to spark much debate on the issue of distracted driving. Members of the NTSB are calling for a ban not only on the use of hand-held cell phones but on hands-free devices as well. NTSB member Robert Sumwalt is being widely quoted, by CNN for example, after referring to distracted driving as “the new DUI.”

The National Highway Traffic Safety Administration reports that the year 2010 saw 3,092 traffic fatalities due to distracted driving. Cell phone use—particularly texting while driving—is becoming an epidemic in America, one which requires immediate attention.

The problem: While more and more states are implementing bans on cell phone use in motor vehicles, the Insurance Institute for Highway Safety makes the claim that these bans result in little to no change in traffic crashes. Whether banned or not, many people will continue to use their cell phones while they drive. In response to this issue, many car manufacturers are developing new technologies which promise to make in-car communication safer and more productive.

The video below, provided by CNN, features Ford researcher Jim Buczkowski discussing the voice-activated Sync system. The goal for Sync and similar systems is to enable drivers to make phone calls while keeping their hands on the wheel and their eyes on the road. Take a look:

 

In addition to hands-free capabilities, CNN’s Peter Valdes-Dapena reports that these technologies include "systems that alert drivers to stopped or slow-moving cars or pedestrians ahead of them" and "systems that warn when a vehicle is drifting out of its lane.” And even though this technology remains a work-in-progress, we can hope that these systems will help to reduce the number of car accidents caused by distracted driving.

For more information on texting while driving, and for suggestions on how to remedy the problem, please see the article “How to Prevent Your Kids from Texting While Driving,” which can be found on the Kreithen, Baron & Carpey website.
 

Potholes On The Road Which Lead To Injury: Can I Sue The City?

Drivers throughout Pennsylvania can now report potholes to local agencies (ie: Penndot, Streets Department of the City of Philadelphia) by utilizing apps on their smartphones which send current locations of potholes via GPS.   As reported in the Philadelphia Inquirer article by  Reid Kanaley (12/1/11):

Your smartphone must have GPS function for the app to work. When you load it for the first time, the app asks for your e-mail address. After that, if you spot a pothole, just open the app and tap the screen twice to generate a pothole report.After your double tap, you'll be instructed to check your e-mail for a message from SaveMyTire.com. The "pothole report" message will ask you to preview a map showing your pothole location, and then to either tap a link to confirm your report or, if the map is not correct, tap a different link to cancel your report and start over.Confirmed reports go into the SaveMyTire.com database and are e-mailed to the local city, county, or state road department.

This could also prove helpful in establishing notice to municipalities and the Commonwealth of Pennsylvania of potholes that cause injury to drivers and passengers who hit them. These types of accidents are usually very difficult to prove despite the fact that hitting a pothole at high speeds while not expecting it can result in serious injuries to the driver and occupant of any car, bus or motorcycle. The laws in Pennsylvania generally require prior written notice of a roadway defect before a successful suit for damages can be brought.

If you feel that they have been wronged by the government because the car you were in hit a pothole, you may be able to seek redress in the courts. However, you should be aware that recovering damages against the government is even more difficult than recovering against a non governmental party.  Notice of the pothole by the government if always of particular concern. These new apps will place an interesting twist on the issue of whether a governmental agency was made aware of the pothole and whether anything was done in a reasonable time period to try and fill the pothole or otherwise warn drivers of the danger. Trial lawyers representing victims who sustained injuries when in a vehicle that hit a pothole will now be able to retrieve data sent to SaveMyTire.com and other sites that will prove useful as evidence at trial and at the pretrial stage.

 

You Can't Multitask, So Just Stop Driving!

Why can't that driver next to me stop texting while driving?

According to a recent University of Kansas research study, texting is like any addiction. The study was done by Paul Atchley, Ph.D. ,  an associate professor of Cognitive Psychology at the University of Kansas. Texting is a social behavior, and that desire to stay connected is extremely powerful because it taps directly into your brain's reward system. You want that next hit, and that "bing" on your smartphone provides that next hit of social acceptance.

As of the present date, 34 states have banned texting while driving. But legislating the issue does not necessarily solve the problem. Therefore, as a motorist, it's a good idea to learn to protect yourself on the highway. Other multicasting motorists give signals. Texting or otherwise distracted drivers generally:

  • drive more slowly compared to other drivers
  • tend to drift in and out of their lanes.
  • tend to miss off ramps and on ramps until the last minute.

Pennsylvania State Senate Passes Ban on Texting While Driving

On Tuesday, Nov. 3, Pennsylvania state senate passed a bill prohibiting citizens from texting while driving. The bill permits police officers to pull over drivers who appear to be texting at the wheel, with guilty parties standing to receive fines as high as $50 per offense. The bill will take effect after it is signed by Gov. Tom Corbett, who Metro Philadelphia quotes with enthusiastically saying, “Send me that bill.”

Distracted driving is a real danger. The official US government website for distracted driving,Distraction.gov, says, nationwide, 5,474 people were killed in motor vehicle accidents involving distracted drivers in 2009. The same year, the website reports, about 300,000 injury crashes were reported to have involved distracted drivers. And, even though the term “distracted driving” can refer to more than just texting, Distraction.gov says “texting is the most alarming because it involves all three types of distraction.”

 The three types of distraction outlined by Distraction.gov are:

  • Visual—taking your eyes off the road

  • Manual—taking your hands off the wheel

  • Cognitive—taking your mind off what you are doing

To see texting while driving as a combination of visual, manual, and cognitive distraction gives credence to a University of Utah study which concluded that cell phone use “delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.” If texting at the wheel is equatable to driving while under the influence, the problem is indeed urgent and one which requires attention.

This problem calls for individual action. The Philadelphia Inquirer recently reported on skepticism among police officers who see the Pennsylvania senate’s new bill as unenforceable, and while this might be true, the passing of the bill could help to initiate change. The same story cites AAA surveys that “show that 95 percent of drivers see texting as a serious threat, though 30 percent admit to doing it themselves…” Hopefully the state ordinance will inspire a change of heart in those drivers who text despite the danger.

For more information on the dangers of distracted driving, and for suggestions on how to remedy the problem, see “How to Prevent Your Kids from Texting While Driving,” “The Epidemic of Texting While Driving,” and other articles on the Kreithen, Baron & Carpey website.

No Fee For Kids Program Introduced

Whether an attorney should charge a legal fee to a child when that child’s car accident case is settled without having to file a lawsuit is a decision I've decided to confront head on.

When a case involving a child is settled with the insurance company pre suit, the settlement and the lawyer’s fee must be approved by a judge in the county where the accident took place. Too many times I’ve been in court and have seen lawyers attempt to charge fee in cases involving a child, where the child was in the same accident as his or her parent, and the fee, as far as I was concerned, was unjustified. I’ve decided to do something about that by starting the “No Fee for Kids” program.

Here’s how the “No Fee for Kids” program works.

  • It must be a case where the child was involved in the same car accident as one or both of his or her parents.
  • The program applies to car accident cases that settle without having to file a lawsuit.
  • It applies for any child who is 12 or under at the time of the accident.
  • It has to be in a county where I regularly practice.
  • It must be a case that is not referred to me by another attorney.

Further information about the program can be found here, and I detail it more in this video:

More On Texting While Driving

Photo By SuperStock

I know that there's a lot being written on this subject. I write as much as I can on the texting issue because it's important to me. Here's recent information. In the Lehigh County case of Commonwealth v. Steiner,(Lehigh Co. May 4, 2011), Judge James T. Anthony ruled that an Allentown City ordinance prohibiting the use of a cell phone while operating a motor vehicle was invalid because the Pennsylvania Legislature intended that motor vehicle regulations be uniform throughout the state and this ordinance would subject motorists to unreasonable inconsistencies contrary to the purpose of the Vehicle Code. Defendant's motion to dismiss granted.

In this criminal matter, the defendant was charged with violating the ordinance for using a mobile phone while operating his vehicle. He was found guilty and appealed. Following the summary. He then of course through counsel,  filed a motion to dismiss arguing that the ordinance was preempted by the Pennsylvania Vehicle Code.

After reviewing the law of preemption, Judge Anthony ruled that the Pennsylvania Legislature intended that motor vehicle regulation  to be uniform throughout the state. For the ordinance at issue to be valid, there must be specific authorization in the Vehicle Code permitting the City of Allentown to enact such an ordinance.

It sounds like the lawyer in this case for the defendant did a good job in arguing his position.  Unfortunately, the Pennsylvania Legislature is going to have to past uniform regulation prohibiting texting and driving. Otherwise there will be no real teeth to these ordinances throughout the state.
 

Anti-Texting While Driving Bill Makes Its Way Through Pennsylvania Senate

Photo from Flickr:  Texting-While-Driving

On June 8 2011, legislation banning handheld cell phone use while driving passed the state Senate. The bill, S.B. 314, allows police to pull over young drivers for violating the law, and police can cite older drivers only if they are pulled over for another driving infraction. This "secondary offense" rule is not as strong as it should be, but the bill moves on to the Pennsylvania House, where hopefully that provision will be removed.

 It is now an established fact that  distracted driving is a major cause of accidents, especially among young people. Driving and texting just don't mix, but many drivers are simply too stubborn to realize it. It only takes a second to become distracted on the road even without using a cell phone. Studies have shown, for instance, that  for a driver who uses texting, his or her collision risk is 23 times greater than when not texting.

Pennsylvania has held out long enough in making use of a a cell phone while driving illegal. According to the website of the Governors Highway Safety Association, neighboring Pennsylvania states already have strict cell phone bans on the books.

  • New Jersey has a complete ban on using a handheld cell phone to talk and text while driving;
  • New York state has a ban on handheld cell phone use while driving, which is also a primary offense, and texting while driving it’s a secondary offense
  • Delaware has complete bans on talking and texting while driving, both being primary offenses.

This is the best chance of getting an anti texting bill signed by a Pennsylvania governor. Hopefully for all Pennsylvania drivers, the House will move an even stronger bill forward and will get it in the Governor's hand soon.

 

Trucking Safety Risks Increase In Recession

With less goods being purchased by consumers, there’s less to ship. That means smaller profits for trucking companies. How are trucking companies dealing with the financial pressures? The concern is that they are cutting safety corners.

According to the American Transportation Research Institute, (ATRI), the representative research arm of the trucking industry, driver shortage is a major concern going forward. In addition, the Department of Transportation allows for fewer allowable driving hours, and there is an aging driving force. One answer for trucking companies? Recruit new drivers and establish new entrance programs that enhance drivers’ confidence in less training time.

This is a scary proposition. Compare this approach with the fact that legal liability is also a major concern of the ATRI. For instance, ARTI's 2007 study proposes

“a vigorous education campaign aimed at identifying specific ways in which citizens are harmed by imprudent damage assessments [designed to] promote legislative action, resulting in damage caps…”

In other words, avoid legal responsibility for reckless drivers while at the same time utilize less experienced drivers who get on the road in big rigs with less training.

Trucks have a more difficult time compared to private passenger motor vehicles of stopping, turning and maneuvering. This is the basic physics behind vehicle/truck collisions. Enhanced driver training and stricter enforcement is the answer.

The federal government has stepped in with a significant game changer counterbalancing the trucking industry’s approaches. The Federal Motor Carrier Safety Administration (FMCSA) has instituted a new comprehensive safety analysis (CSA 2010) designed to reduce the number of crashes, injuries and fatalities. The teeth behind the program is the seven Behavioral Analysis and Safety Improvement Categories (BASIC) which will create a database on fleet truckers and driver violations, warnings, DOT reportable accidents and other truck driver activity which are instantly available to trucking companies and FMSCA. “The CSA program will help us more easily identify unsafe commercial truck and bus companies,” said U.S. Transportation Secretary Ray LaHood. “Better data and targeted enforcement will raise the safety bar for commercial carriers and empower them to take action before safety problems occur.”

According to M. Thomas Ruke, Jr., president of Insurance Business Consultants, Inc., the federal government has not been shy in saying that it is increasing efforts to put the 20 percent of motor carriers it believes are bad operators out of business and making the ratings available for public viewing in real time.Under the new CSA 2010, roadside inspection information will be included in the federal database.  The available information will be immediate and continuous for each driver. In other words, there will be no lag time from when a violation occurs until is available to shippers and FMCSA. And,  for the first time, drivers will be held accountable for their personal driving record and out-of-service violations. This includes speeding violations,  violations for following too closely, or failing  and being within the required hours of service  to name just a few,  will all factor into a trucker's safety rating.  

Juries have always held trucking companies responsible for unsafe drivers who cause accidents that result in serious injuries.  But now that CSA 2010 provides new information that says whether a driver is fit, marginal or unfit. As such  a shipper's viewpoint of a trucker — and their liability if an accident occurs — will change.Trucking companies are going to have to screen their drivers in more detail than they ever have before.

Ruke had this to say in the article "2010 A Revolutionary Year For Truckers Insurance" in the May 2010 edition of Insurance Journal:


"What happens if the federal government determines that the driver's actions have led to a rating that he's/she's unfit to drive and that information is readily available online. Imagine standing before a jury trying to defend a driver that has been rated unfit to drive. If they are unfit, why did you give them a load? If you had not given them a load, they would not have been there to kill or hurt that person. [The new safety ratings have] placed a layer into the system that is almost impossible to defend.'

 

Direct Mail Solicitation After An Accident Or Speeding Ticket: Good Or Bad?

A relative of mine contacted me a few weeks back and asked me if I handled speeding tickets in New Jersey. She had been ticketed, and she lives in Pennsylvania. I told her I did not handle those cases. Then she went on to explain that she had been solicited in writing by three law firms in one week, all of whom offered their services. She wanted to know if she should hire one of those firms to defend her at the traffic hearing. She sent me the letters and I gave her my best advice. I found the letters accurate and helpful, albeit a bit aggressive.

At present, New Jersey lawmakers are debating bills that would require lawyers, as well as doctors, accountants, and any other professional who solicit by mail by obtaining public records, such as speeding tickets, police reports and the like, to potential clients and customers. The sponsor of one of the bills, New Jersey State Senator Nicholas Scutari, (D. Union County), himself a lawyer, sees the mail solicitation practice as demeaning to professionals. This is a view shared, for instance, by bar associations across the country.  Senator Scutari favors a 30 day waiting period be written into the present law in New Jersey which would disallow any direct mail solicitation immediately following an incident, for instance a car accident.

Pennsylvania, as with most states, allows direct mail solicitation, but at least as concerns lawyer written communication, any misleading written material sent to a prospective client, no matter how the information is obtained, is impermissible. Thus, lawyers in Pennsylvania can scour through police reports to search for the names and addresses of accident victims, and lawyers who defend people in traffic court can find potential clients in a similar way, and write to them.

I agree with Senator Scutari. As a way to get new clients, it is an unseemly method. But the problem is that victims of accidents need to have access to information about their rights; they need to know what they should and should not be doing following an accident. I write about this subject often.

While I do not favor the practice of direct mail solicitation from public records such as police reports, it is a very common practice for insurance adjuster to reach out to accident victims immediately following accidents in order to get the person to do any number of things; for instance to:

  • Sign a general release in exchange for a check to cover all injuries and damages;
  • Sign a release for medical records;
  • Give a recorded statement.

The point is, if insurance companies have this ability to speak to accident victims right away, then a 30 day waiting period imposed on lawyers, is unfair to the public. Yes the public has access to the internet and can find good material online. But not all accident victims know their rights or have access to the internet. The right of consumers to have easy access to information trumps the somewhat distasteful practice of direct mail solicitation immediately after an accident, or after someone gets a speeding ticket after her speeding ticket.

Update:

The issue of mail solicitation by lawyers was at the forefront of an article in the Wall Street Journal on December 7, 2010. The story has to do with the explosion at the Massey Energy Company coal mine in Dawes, West Virginia, where 29 miners were killed. The company is making settlement offers to the families of the miners who died. The article quotes Tommy Davis, whose son was killed in the explosion as stating he was in no hurry to settle with Massey, yet had thrown out all of the mail solicitations sent by lawyers interested in representing the victims. That's understandable, but without representation, Mr. Davis could be facing a statute of limitations problem, and could be left without advice as to whether the Massey offer is a fair one or not. From the article, it appears as though the offers by Massey take into account many factors which an experienced personal injury lawyer would evaluate, such as the interplay or setoff with workers compensation benefits. So while recipients of mail solicitation by lawyers in the Massey coal mine explosion case may  find the letters distasteful, the victims' families cannot be left in the dark and think they would get a fair shake from the at fault party or their insurance company. They need proper representation.

How Texting While Driving May Impact Workers Compensation

From time to time I have guest articles on my blog from other lawyers around the country. The following article refers to North Carolina law, not Pennsylvania. Despite the different jurisdictions, this article still provides important information pertaining to texting and driving.

 

Worker’s Comp Insurers and Employers are beginning to take notice of a disturbing trend in society today… more and more work-related fatalities that are caused by, you guessed it, texting while driving.  This recent article by Ira Leesfield cites a statistic from the National Safety Council that an estimated 200,000 traffic accidents per year are caused by drivers who have been texting.  Also cited in the article was a study by Car & Driver Magazine which “found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers.”

How does this impact Worker’s Compensation Insurance?  Many employers provide their employees with mobile devices, and require continued contact with them through email or texting – even while those employees are on the roads.  The problem with this, and the reason that employers and the insurance companies are taking notice, is that when an employee is involved in a traffic accident while texting, not only could the insurance company/employer be on the hook for paying the workers compensation claim, but they could also be responsible for paying the claim to the victim of the accident under a theory of respondeat superior or direct negligence.  And because more and more accidents are caused by texting while driving, that means that the insurance companies are going to have to pay out more and more money for these workers compensation and other claims.

A prudent employer would be smart to adopt written policies banning texting while driving for all employees, and make sure that these policies are frequently and adequately communicate  to employees.  The problem arises when an employee is sent out for an isolated errand – but they don’t normally drive for that employer. If the errand was for company business, than the employer could be liable under the Worker’s Comp statute.  (I’ve frequently thought about what might happen if my legal assistant was injured in an accident while driving to the courthouse for a last minute filing or to pick up office supplies.)

Since North Carolina has a “no-fault” workers comp system, an accident caused by an employee who was texting while driving would still generally be compensable – even though it may have been the employee’s fault.  Ultimately, the courts and/or legislature will decide whether employers are responsible to pay out workers compensation claims for an employee that was injured in a traffic accident, even though they may have been texting at the time of the accident.

In the meantime, I would advise anyone who drives for a living to shut the phone off and pay attention to the road.  If your employer requires you to text and drive at the same time, then you may want to consider whether this is someone you want to work for.  Whether the employer likes it or not, your safety is more important than productivity.

James W. Hart is a North Carolina Workers Comp Lawyer, who restricts his practice to Workers Compensation and Collaborative Divorce. The Hart Law Firm P.A. is based in Raleigh, North Carolina.  If you have been injured at work in North Carolina, call 919.460.5422 for a free workers comp consultation.

 

 

Do I Have A Defective Airbag Case?

This is a guest blog post from my colleague Shelly Leeke, Esquire, who practices personal injury law in Goose Creek, South Carolina. She can be reached at 888-690-0221.

 

Several factors must be considered when determining whether a defective airbag lawsuit should be pursued.


Here are four considerations in evaluating a defective airbag case:


1.    Should the airbag have deployed in the crash?
2.    Why didn't the airbag deploy?
3.    Could the injuries have been lessened or avoided altogether if the airbag had worked?
4.    Are the injuries caused by the defective airbag serious enough or life threatening enough to be worth   the cost of pursuing a defective airbag lawsuit?


1.    Should the airbag have deployed in the crash?

Before even considering filing a product liability lawsuit for a defective airbag, we must look at the facts and circumstances surrounding the crash and determine if there was an airbag malfunction. In other words, should the airbag have deployed in the car accident? Many times, an investigator may be used to gather the evidence to make this determination. One important factor is the speed the vehicle was traveling at the time of the impact. Airbags have a threshold speed, usually around 14 mph, and will not deploy unless the vehicle was traveling at or beyond the threshold speed. The type of impact is another important factor. Frontal airbags are designed to deploy in frontal impact crashes. If the impact was to the front of the vehicle, the airbag is designed to deploy if the vehicle was traveling at the threshold speed. But, if the crash was caused by a rear end impact, the airbag may not have deployed because the airbag was not designed to deploy in that type of accident. Many vehicles now come equipped with side airbags, so an analysis of where airbags are located in the vehicle and the type of crash that occurred (rear end collision, t-bone, head-on collision, etc.) may be necessary to determine whether or not properly functioning airbags would have deployed in the car accident.

2.    Why didn't the airbag deploy?

If the airbag should have deployed, but did not deploy, it is necessary to be able to prove a defect in the airbag prevented it from working properly. To prove the airbag was defective, experts must give expert engineering testimony to explain why the airbag was defective. Obtaining the best experts to give testimony in order to prove an airbag defect case is very expensive. This expense only makes sense if the person was severely injured because the airbag did not work.

3.    Could the injuries have been lessened or avoided altogether if the airbag had worked?

Could the injuries or death have been avoided if the airbag had worked properly? To prove that the person was injured because of the defective airbag, medical experts must be obtained to provide testimony that the person's injuries or death could have been avoided if the airbag had worked properly.

4.    Are the injuries caused by the defective airbag serious enough or life threatening enough to be worth   the cost of pursuing a defective airbag lawsuit?

As you can see, airbag cases are complex, and costly to pursue. That is why even if you have a valid defective airbag claim, it still may not be in your best interest to pursue a defective airbag lawsuit. By this I mean, unless the injuries and damages the person suffered because of the defective airbag are extensive and very serious in nature, the cost of litigating and proving the airbag case could be more than what you would recover from a settlement or jury verdict. It just does not make sense to file a defective airbag lawsuit unless there is a good chance of recovering more for the client than the costs of proving the case.  However, if the person's injuries are very serious or if the person was killed in the accident, a defective airbag case should be considered.  Broken bones, head trauma, brain injury, surgery, life-threatening injuries, and many other debilitating injuries are examples of injuries that are serious or catastrophic enough to result in a settlement or verdict that would warrant the cost of pursuing an airbag case. 

 


 

 

Philly Police will no longer respond to "minor motor vehicle accidents" beginning Monday May 3, 2010

Under a new Philadelphia Police Department policy, police will no respond to "minor" car accidents. The purpose is to save money and resources. But this is a very dangerous policy. For instance, who decides what is a minor car accident. (The directive from the Philadelphia Police Department  website is anything but helpful).  Is it the dispatcher who answers the phone when you call 911? What are the criteria for calling an accident minor? Is it the degree of impact? The amount of visible damage? What if there is damage that's not immediately apparent? What if the cars look ok but a tire is blown out or a wheel is damaged in such a way so that the car is not able to be driven from the scene?

car wreck Philadelphia

What's the degree of injury that will now require the police to go to the accident scene? Does someone need to be bleeding?

After 23 years of practicing law and handling thousands of car accident cases, and having been in car accidents myself, I know that people can sometimes act "not themselves" at accident scenes. It's the adrenaline I suppose. And no one wants to admit they did something wrong, like cause a car accident. Police certainly act as a buffer at accident scenes. They are necessary, even in minor accidents.

Will it now be more likely that drivers leave the scene of an accident? Sure it will.

What do you need to do now? First, make sure to get at least the license plate of the other driver at the scene.  Certainly obtaining more thatn that on the other driver, like name, address, phone number, insurance company information is important. But with a tag number you can obtain the information you, your lawyer, and your insurance company will need from the Pennsylvania Department of Motor Vehicles. Second, report the accident to the police immediately and confirm in writing that it was reported.  Go to the local police station if necessary. Most insurance polices require that the police be notified of an accident within 30 days of the accident in order to protect your right to uninsured motorist benefits.  The reason is your insurance company has a right to investigate the case. So you have an obligation to protect their interests as well as your own. Third, make sure you have uninsured motorist benefits on your auto insurance policy. That way if the other driver leaves the accident scene, you have the right to make an uninsured motorist claim against your own carrier, because a driver that leaves the accident scene is defined as an uninsured motorist under Pennsylvania law.

Take a look at this video from CBS3 for more information.

Technology and the car accident scene investigation

I settled a case a few weeks ago where the cell phone records of the defendant driver turned out to be important. She denied being on the cell phone at the time of the accident and my client was adamant that she was on the cell phone and that was why the defendant had run the red light, because she wasn't paying attention. Turned out that when we attempted to subpoena the defendant's cell phone records the defendant driver's cell phone carrier was unwilling to turn over the records without an additional court order. (Note that a subpoena is a court order, so the cell phone carrier was just delaying the inevitable- eventually we would have gotten the records). The defendant was apparently concerned about what those records might have revealed, as compared to what she testified to at her deposition. Apparently those records would have jeopardized the defendant's denial of cell phone use, because her attorney quickly agreed to settle the case for the figure we had suggested to him after I filed a motion to obtain the cell phone records.

Obviously cell phone records can be used as both a sword and a shield in terms of vehicle accident investigation, depending on who is accused of using  a cell phone. But, think of the other technologies in place that can also be used to prove or disprove liability in a car accident case. For instance...

  • Text messages/e-mails.
  • Video footage: This may be particularly true if the accident occurred during rush hour and the scene is captured by a traffic helicopter.
  • GPS devices: Garmins, Magelllan and Onstar all record information, including the driver's route of travel.
  • Black box technology: Common on trucks, black boxes are now being equipped on private passenger motor vehicles. Black boxes are designed to record and preserve critical information at the time of an accident, just as black boxes are used in airplane crashes to recreate the events leading up to the crash. Black boxes typically record speed, braking and acceleration. The National Highway Traffic Safety Administration is looking at the possibility of requiring data recorders for all new vehicles. 
     
  • Speed Pass: Data from these devices, also discoverable via subpoena as are cell records, tell where a vehicle was on the highway and can pinpoint time of day. 

 

 

 

The Pennsylvania Legislature Should Increase Car Insurance Liability Limits

Since 1984 bodily injury limits (BI) on a typical automobile insurance policy has been mandated at $15,000/$30,000. BI coverage is the coverage that provides financial protection to the at fault driver in an accident. 

The $15,000 number reflects the maximum amount of coverage the injured party can collect from the at fault driver's policy of insurance (if their injurIes warrant that amount). The $30,000 figure is the amount that any combined number of injured people can collect; for example, if the at fault driver injures more than one person in the same car accident.

Maryland has just increased their limits to $40,000/$60,000, up from $20,000/$40,000. This change was long overdue for Marylanders. Our hope is that the Pennsylvania legislature will pay heed to what their colleagues in Maryland have done and increase Pennsylvania's mandated BI limits. In fact most states have limits above Pennsylvania's $15,000/$30,000 amount.

To put the $15,000/$30,000 BI limits into perspective, consider what a dollar bought you in 1984.

  • Average Cost of new house $86,730.00
  • Average Income per year $21,600.00
  • Average Monthly Rent $350.00
  • Movie Ticket $2.50
  • 1 gallon of gas $1.10
  • Dodge RAM 50 Truck $8,995.00

Pennsylvania's Cell Phone Driving Ban

Anybody who reads my blog regularly knows how I feel about texting while driving. A while ago, I expressed my opinion based on personal experience in my blog post “The Importance Of Being Able to Text While Driving”.  There are now driving safety changes in the works, specifically concerning the usage of cell phones on the road.

Recently, the Pennsylvania House has passed a bill that aims to ban the use of cell phones and all hand held devices for drivers. If passed, the bill would impose a fine of $50 upon individuals who don’t use hands-free devices. The exception to this would be navigational systems (such as GPS) or calling 911 in the case of emergency. The goal is obviously to limit the talking and texting of drivers on the roads. Only 7 other states have such tough driving restrictions—California, New York, Washington, D.C., Connecticut, Oregon, Utah, and New Jersey.

Washington DC held a “Distracted Driving Summit” in September of 2009, where National Highway Traffic Safety Administrators reported 6,000 deaths and 500,000 injuries due to car crashes involving distracted drivers in the year 2008 alone. As you may expect, the majority of the distracted cell phone drivers are less then 20 years of age. The Pennsylvania bill’s lead sponsor and chairman of the Transportation Committee, Representative Joe Markosek said, regarding his reasons for sponsoring the bill, “We are all one text from eternity.”

An interesting take on this issue is from Michael Smerconish, a lawyer, Philadelphia radio show host on 1210 AM WPHT, and columnist for the Philadelphia Inquirer. His point is that business, i.e. the tech business, should be stepping up instead of government to make hand held devices, in his words, “well functioning, comfortable {and} aesthetic”, and safer when used while driving. Michael Smerconish’s article in the January 31, 2010 Philadelphia Inquirer entitled “Head Strong: Bring Tech Up to Speed” discusses improving hands-free technology as drivers are still going to be using hand helds dangerously while driving, no matter what the consequences. The government cannot stop our own stupidity. So the tech businesses should focus on manufacturing systems in cars, truck, etc, that protect us against ourselves, but still allow for the use of hand held phone devices. Better that these companies tackle America's obsession with driving while using cell phones, iPods, and other devices then have government step in at the local, state, or national level.

Maybe. But as a Philadelphia Accident Attorney, I see the tragic results of distracted driving on a daily basis and I hope the Pennsylvania Senate decides to follow the lead of the House (who voted 189-6) and approve the bill. More information on the Senate’s decision will follow.

 

 

Thinking About Lying On Your Auto Insurance Application? Think Again

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.

The Importance Of Being Able To Text While Driving

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.

Teenagers and Driving

I have two teenagers who are driving. My 16 year old daughter has her permit.  My son is 19 and has been driving for a few years.

My method of initiating them to being behind the wheel was to take them to an empty parking lot  on a Sunday morning and have them drive in reverse, only in reverse, for the first few days. They hated that. But when they got to go forward they realized there was method to my madness. If you have never been in the passenger seat with a teen who just got their driving permit I can tell you it is a terrifying experience. My daughter's driving instructor told me it's much easier for him, not just because he has nerves of steel, but because he has a brake in the passenger seat. He has installed a few of those into some of the parents' cars of the kids that he's teaching. He offered to put one in my Honda CRV, but I declined.

Teens know about the dangers of drinking and driving. They may not appreciate the dangers because they are teens, but they are  told.

However,an equal if not greater danger to teens as drivers and as passengers in a car driven by another teen is cell phones. I insist that my daughter turn her phone off and put it in the trunk when she drives. I don't make or receive calls when I'm driving or when I'm a passenger. I just turn the phone off. It's simply too tempting to answer it. I hope my kids model my behavior.

In early April a twenty-two-year-old Pennsylvania driver pleaded no contest to homicide by vehicle and careless driving resulting in an unintentional death.  He was sentenced  to 10 to 23 months in York County Prison. I sent that story to my kids. I can only hope it sunk in.

Philadelphia Lawyers Tracking Car Accident Victims From Public Police Reports

I recently read a few articles about lawyers in Wisconsin and Texas targeting car accident victims by scouring local police reports. They then contact the accident victims by mail. In the articles, the lawyers give their reason for doing this as trying to put accident victims on equal footing with insurance companies, who also approach accident victims immediately after an accident. Fair enough. Sort of like public service. But I guarantee the lawyers using this method to attract clients are not offering free legal services. Are the Wisconsin and Texas lawyers justified in their attempts to seek new clients in this way? Is it just another method of marketing their practice, or does it go too far?

The same thing happens in Philadelphia, although it has not been written about. Local lawyers hire “investigators” to sit in a room in City Hall where all the police reports are kept. The “investigators” scour the police reports for serious accidents where the accident victims are not at fault, for instance rear- end collisions, and once that information is obtained by the lawyers, they write to the car accident victims offering representation. A few clients of mine have told me, after they have hired me, that they have received a “strange’ letter from another lawyer, like what I’ve just described. I then explain this method that some lawyers use to try to find clients.

Is this illegal? No. Is it unethical in terms of the standards lawyers must adhere to? Not technically. Lawyers have the right under the 1st Amendment to contact prospective clients in writing, not in person or by telephone, and offer their services. Does it undermine the legal profession and personal injury lawyers in particular? It certainly does.

The common sense and basic physics of bumper-to-bumper car accidents

The quality of bumper design systems in cars these days has a direct effect of the severity of the occupants in rear and front end accidents. A high quality bumper system is designed to absorb the force of the impact by “compressing.” A low quality bumper system fails this test and the forces of the impact are passed through the vehicle to the occupants. Many cars on the road today have the lesser quality bumper.

Insurance companies who evaluate property damage and personal injury claims as a result of rear end collisions and front end collision are adept at minimizing the extent of the presumed damage to occupants if minimal damage is visible on the bumpers following an accident. They have stables of “biomechanical engineers” ready to testify in court. The insurance company experts equate minimal visible damage to a bumper to little or no physical injury to the occupants of the car. This is just a trick, however. It takes common sense, a basic knowledge of physics, and opposing expert testimony to defeat the insurance company experts in this regard.

Rear end car accidents are the most common type of car accidents in Pennsylvania. With the advent of cell phone use in cars and other devices that auto manufacturers continue to place in new models(for example, GPS devices) these type of car accidents will continue to rise.

Federal vehicle safety standards regarding bumpers go back to 1978. The standards were not intended to reduce potential injuries to occupants. Rather, the standards were designed to protect the vehicles. Lower speed impacts frequently result in minimal deformation of plastic/polyurethane bumper parts. However, this results in a greater proportion of force directed to the occupants of the vehicles.

Insurance company rely on experts who supply reports which may contain the following type of language: “since the impact speed of the striking vehicle was extremely low almost no energy was transferred to the occupants of the vehicle which was struck.”

Such a position of an expert for an insurance company would be in violation of Isaac Newton’s second principle which basically states that if you place force on an object it will accelerate. And, an object accelerates in the direction that you push it. The acceleration is directly proportional to the force. In other words, if you push twice as hard, it accelerates twice as much. The greater the mass, the more the object that is struck will move. For instance, twice the mass of an object behind pushed into an object in front equals twice as much acceleration. So if a small car is struck in the rear by a larger car, being of more mass the larger car will force the smaller car to accelerate more then if the smaller car had been struck by a lighter car.

Newton’s laws are common sense. They are taught in high school physics classes. Impact causes motion. There can be no disagreement about the fact that when an object is struck it will move.

Bottom line- low speed impact or plastic bumpers do not mean the occupants of a car sustain no injury where bumper meets bumper. The transfer of energy must go somewhere, and it is carried through the car into the occupant’s body.

Deceptive advertising and the selling of lousy car insurance coverage in Pennsylvania

Personal injury lawyers in Pennsylvania know too well that their clients get shortchanged when purchasing car insurance coverage, whether directly from an insurance company (ie: Progressive or GEICO), or from an agent. The difference between full tort and limited tort is rarely if ever explained, nor is uninsured (UM) or underinsured (UIM) motorist coverage.

Full tort coverage means that you and your family members have unlimited access to the court system to seek compensation for personal injuries from a car wreck.

Limited tort means that for a lower premium, usually about $100-$200 less per year, you and your family members have a very limited access to the court system if you are claiming compensation for personal injuries following a car wreck.

In real terms, if a person who has purchased limited tort coverage does not have debilitating and disabling injuries, e.g; broken bones requiring surgical repair, herniated disks in the spine requiring surgical repair, then they have no claim. There are very few exceptions to limited tort coverage. Full tort coverage is not limiting at all. Full tort coverage is the better coverage, hands down, and should be the only choice when purchasing auto insurance in Pennsylvania. Uninsured motorist coverage protects you and your family in the event you or your family members are injured in a car wreck by an "uninsured motorist.” Underinsured motorist protects you and your family in the event you are injured in a car accident by a driver who did not have enough insurance to pay for your injuries. Full tort, UM and UIM are absolutely necessary.

I felt it was so important that my clients understood the value of these coverages that I wrote a book on the subject called Purchasing Auto Insurance in Pennsylvania. You can purchase it at Barnes and Noble, or Amazon, or you can get it from my office for free.

Maybe you’ve seen the Progressive television commercial depicting a Progressive insured going into a Progressive store (they do not exist because Progressive sells its coverage online) gleefully surprised that his insurance company is quickly paying for the damage to his car after an accident and also providing the insured a rental car.

 

 

“It’s all part of the price” the Progressive employee says. No kidding! That’s what you pay for when you buy insurance coverage. I don’t mean to single out Progressive. State Farm is not there, despite their ad that says “State Farm is there.” We all recognize the jingle. That’s just effective advertising. State Farm will make it extremely difficult on you if you have an auto claim. And if you’re insured by Allstate you are not necessarily in good hands.