Apparently they can. And, as one commentator has said, it's like big brother insurance company looking over your shoulder.
Under their "MyRate" program, Progressive will mail you a wireless data recorder, which you the policyholder then plug into your car's on-board diagnostic port. The device records your speed, braking habits and time of driving amongst other things. In exchange, you conceivably can get lower premiums if your driving habits are in the lower risk category, according to Progressive.
The riskiest time to drive is between 12:00 a.m. and 4:00 a.m. according to Progressive's data.
The problem is, the company can use this device to surcharge an insured who is forced to work the midnight shift, for example; or if the insured drives on congested city streets during rush hour and is forced to frequently hit the brakes, another indicator of high risk driving habits according to Progressive.
All of this irks Lance Haver Philadelphia's director of consumer affairs, whose concern is that the collection of this data not be used against the consumer. The Pennsylvania Insurance Department has so far rejected Progressive's plans to employ the system in Pennsylvania. Progressive is using their MyRate program in other states.
Allstate Insurance Company, one of the the largest insurance companies in the country and certainly in Pennsylvania, is raising rates on Pennsylvania insureds. But here's the kicker. They are only raising rates on folks who have their homes insured with Allstate; insureds who have the combination of homeowners and auto coverage are not seeing the same level of increase in their premiums. Here's what Philadelphia Inquirer reporter Harold Brubaker wrote yesterday in his article on the subject.
Allstate Property & Casualty Insurance Co. is imposing an average premium increase of 33.4 percent on the roughly 45,000 Pennsylvania customers who buy only homeowner's insurance from the company. The average increase for customers who insure both their homes and their cars with the division of Allstate Corp. in Northbrook, Ill., is 11.3 percent, according to a filing with the Pennsylvania Insurance Department. The increase was effective for renewals starting May 20.The big jump in costs for homeowners-insurance-only customers prompted Lance Haver, consumer advocate in the Philadelphia Mayor's Office, to buy radio advertisements with his own money warning consumers of the rate increase and advising them to shop around before their renewals kick in. Haver, in an interview Tuesday, called the two-tiered rate increase bizarre. It's as if they think there is "some correlation between your house catching fire and who you insure your car with," he said.
Seems to me that this may be a clever, and perhaps devious, way for Allstate to market to their insureds combining homeowners and auto coverage. In other words, when an insured gets the premium increase, and calls his or her agent, the agent will have a script ready to tell the insured how to lower the premium...."buy auto coverage through us!"
The point is, shop around for your auto, and homeowners coverage. I tell clients that all the time. One of the best places to go is the Pennsylvania Insurance Department website.
PennDOT doesn’t say much in terms of helping consumers decide how much car insurance coverage to purchase. That's a problem for consumers.
We’ve always recommending buying more than the minimal limits!
Every state has a minimum required amount of auto insurance. Depending on the state, the costs will vary. In Pennsylvania, the state required minimums for liability auto insurance are $15,000 of coverage for injury or death of a single person, $30,000 of coverage for injury or death of multiple people, and $5,000 of property insurance.
According to the PennDOT website, "you are in compliance" with the law if you have liability insurance in the following amounts:
• $15,000 for injury or death of one person in an accident
• $30,000 for injury or death of more than one person in an accident
• $5,000 for damage to property of another person
Simply put, you should purchase more than the minimum coverage required by law. You should buy as much as you can afford. Some insurance companies, although surely not all, do a better job than PennDOT does of explaining the coverages you need. It's inexcusable that PennDOT's web site is so lacking in this regard, particularly since the Pennsylvania Insurance Department does is somewhat better job of explaining to consumers the various different types of coverage you can purchase when buying car insurance. The Pennsylvania Insurance Department web site even goes on to state "having the right insurance coverage may prevent you from suffering a large financial loss in the event of an automobile accident." We couldn't agree more.
In other words, don't skimp on your car insurance coverage. We would only hope that someone from PennDOT would look at the Insurance Department's web site. Changes to PennDOT's website are needed to give consumers something more than "buy the minimum legal insurance coverage." That's just bad advice.
Optional, yet highly recommended additions to the state minimum are full tort coverage, rather than limited tort, as well as uninsured and underinsured motorist coverage. This is separate and apart from liability coverage. For more information about these coverages, go to the Insurance Department's web site or order my book on the subject.
The following is a posting on a listserve I belong to for Pennsylvania personal injury lawyers. It was posted by another lawyer seeking opinions and advice. It does not concern a client of mine, but it is certainly instructive for anyone injured in an accident.
I have written before on this blog site, on my web site, as well as in other written materials about what can be questionable practices on the part of insurance companies and their representatives. My purpose is educate the public on some of these practices. I know insurance companies do. The consumer may not. What follows is a remarkable story but not altogether that uncommon.
This story is somewhat long winded, but I think all of the facts set
forth are necessary to get a full appreciation of the case. Friday of
last week, (2/19/10) a woman (client), married, mother of 2 (17 & 21)
shows up in the office and tells me the following: On the previous
Monday (2/15/10) she was involved in an intersectional motor vehicle accident where the
other party went through stop sign. She was alone. Other driver admits
fault at scene and liability is not an issue. Air bags deploy on
client's vehicle; her vehicle is SEVERELY damaged, but I don't know if
it is totaled. She has bruising on her legs with neck and back pain.
She goes to the emergency room. and is released with prescriptions for narcotic pain medication and instructions to see family doctor. The NEXT day, the insurance adjuster
begins calling and wants to schedule in home visit for the stated
purpose of getting a recorded statement. Client is hurting, feeling
effects of the pain meds and resists. However, husband, upset over the
car damage, wants to get that resolved ASAP and talks he into meeting
with the adjuster (after several more calls from the adjuster) and
meeting is held in the home on Thursday 2/18/10. She is alone. He
takes statement and showers her with flattery and sympathy, telling her
that, while he doesn't do this for most people, she is entitled to
"something for her pain and suffering" and suddenly and unexpectedly,
offers her $1000. She is nonplussed, and says OK. He pulls out a
release and his checkbook and writes a check on the spot. She is not
offered the opportunity to discuss this with her family or an attorney;
nor is a copy of the release left with her. Of course, when husband got
home and she explained what happened, he is quite upset to say the
least. She calls the adjuster the nex day, Friday 2/19/10 and tells
adjuster she doesn't want to settle. He, in effect, tells her to pound
sand; "too bad, you signed a release."
She is hurting quite badly; in fact she went to the emergency room on Saturday
because of severe neck and back pain.
What can be done in a situation like this? There may be ways to defeat the release. The injured person who signed a release was in pain, had received narcotic medication from the emergency room, and so on. Defeating the release will require a lawsuit against the insurance company and probably against the adjuster personally. The allegations in the lawsuit could consist of fraud and misrepresentation, unjust enrichment on the part of the insurance company, detrimental reliance and conspiracy. But make no mistake. Is a difficult proposition to defeat the insurance company once a release is signed. However, being forewarned is being forearmed. Be aware of your rights in the event you are involved in an accident and the insurance company representative comes knocking at your door with a check and release in hand.
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.
The wrongdoings of the judges centered on the following:
neither the juveniles nor their families were advised by the judges of their right to counsel,
guilty pleas were accepted without explaining what the minors were charged with,
and parents’ wages were garnished to pay for the costs of detention;
the judges summarily and routinely ordered that youths who had committed relatively minor offenses be sent to residential youth detention facilities.
The detention centers, with the two judges’ assistance, received more than $30 million in county contracts.
The story deserves and has received national attention. A recent article in the The American Bar Association Journal takes the position that lawyers who regularly entered the two judges' courtrooms had an obligation to "blow the whistle" on the judges, whether or not the lawyers represented any of the juveniles who appeared before Ciavarella or Conahan.
In fact, it was uniformly true that the juveniles were never represented by counsel. And that is one of the lessons from the Luzerne County fiasco. Litigants need attorneys before they even think about entering a courtroom.
In the insurance claims area, it is sometimes possible to handle a claim on your own without the help of a lawyer. For instance, in small property damage and small personal injury claims you may not need a lawyer. But you can bet that the insurance company will do its best to take advantage of you. The insurance company is in the profit making business. They are not around to help you with your claim.
I preach the following in any Pennsylvania accident or injury case: before you sign any forms, or before you give the insurance company a statement, consult with a qualified personal injury lawyer. That does not necessarily mean hire a personal injury lawyer. That means consult with one and then make an educated decision on how to deal with the insurance company.
The court system is not designed to protect the individual. You must be prepared to look out for your own interests.
One of the strangest events in tennis occurred Sunday night. Serena Williams, the defending champion, was playing Kim Clijsters in the semi final of the US open. Clijsters, 18 months since giving birth to her first child, was ahead one set in the best out of three match, and Williams was serving at 5-6, 15-30. In other words, Clijsters was two points away from winning the match. Williams is ranked number 2 in the world and was ranked number 2 in the tournament. Clijsters was unranked and not expected to get as far as she did. (She ended up winning the tournament the next day).
At a critical point in the match, a lineswoman called a foot fault on Williams on her second serve, making the score at 15-40 and giving Clijsters match point. Williams then commenced a profanity laced tirade at the lineswoman, and appeared to threaten the lineswoman. The chair umpire stopped the match, the head of the tournament was called onto the court and ruled that Williams would incur a point penalty thereby giving Clijsters the match. The fact that Williams was given a point penalty in and of itself was not the death knell of her chances of winning the match; rather it was the timing of the point penalty, on match point, that ended her chances.
Did Serena foot fault? Instant replay did not provide a good enough angle for anybody to determine if the lineswoman made the correct call or not. Should the lineswoman have called a foot fault at such a crucial point in the match? Really, that’s not the issue. She was just making a call, which was what her job required. She might have been wrong. But it was Williams’ reaction to the call that cost her the match. She could have “challenged” the call, the chair umpire would have reviewed the replay tape and would have made a call on the foot fault herself. At worst, Williams would have been down match point. She would have still been in the match. (Williams has since been fined $10,000 and may face stiffer penalties according to the USTA).
The lesson here is that once you put yourself in the arena, whether it’s center court at Arthur Ashe Stadium, or in front of a jury, you subject yourself to “calls” (known at trial as “rulings”) that are sometimes unfair and sometimes flat out wrong. Judges make mistakes. Court rulings are simply part of the risk. The jury could get your case wrong, not find your testimony or that of your witnesses believable, or not award you enough compensation for your injuries; again, that is part of the risk of going to trial.
Serena Williams’ tirade is also a lesson to litigants. Testifying at a deposition or at trial is stressful. But, simply put, it is not in your best interest to lose your composure at a deposition or at trial. No matter how much we prepare you for the expected or the unexpected in advance of your deposition or trial, reliving the events which caused you injury and seeing the person who caused your pain is an emotional experience that must be anticipated and dealt with. You must put you best game face on and accept the consequences.
This is also a teaching point about the dangers of social media to personal injury litigants. I've written before about the fact that insurance companies are trolling social media sites like Facebook to find images (photos/videos) of litigants which might minimize the insurance company's exposure in personal injury cases. Serena Williams misadventure at the US Open will be forever on Youtube. Be careful about what you put on Facebook.
This story hit the news in December 2007. 60 year old David Pfahler was skiing at Colorado's Beaver Creek Ski Resort in January 2007 when another skier, then 7 year old Scott Swimm collided, with him. Pfahler injured his shoulder in the incident. Suit was filed in the United States District Court in Colorado. This is a hyperlink to the actual lawsuit.
There is much more to this story. The U.S. Chamber of Commerce has put together a two minute video depicting little Scott being deposed by the mean lawyers representing the plaintiff, Mr. Pfahler. Much of the video depicts the parents discussing the impact the suit has had on Scott.
I'm sure it has had an impact on the child. But the back story is the U.S. Chamber of Commerce has a much more despicable and hidden agenda. They are rolling out more videos like this as part of their push for the elimination of the Arbitration Fairness Act of 2009. What's that you say? It's a proposed federal bill intended to reduce mandatory arbitration clauses in contracts between parties not of equal bargaining power.
The first paragraphs of the proposed Act state the purpose of the proposed legislation, ie: what it's designed to do.
(1) The Federal Arbitration Act (now enacted as chapter 1 of title 9 of the United States Code) was intended to apply to disputes between commercial entities of generally similar sophistication and bargaining power.
(2) A series of United States Supreme Court decisions have changed the meaning of the Act so that it now extends to disputes between parties of greatly disparate economic power, such as consumer disputes and employment disputes. As a result, a large and rapidly growing number of corporations are requiring millions of consumers and employees to give up their right to have disputes resolved by a judge or jury, and instead submit their claims to binding arbitration.
(3) Most consumers and employees have little or no meaningful option whether to submit their claims to arbitration. Few people realize, or understand the importance of the deliberately fine print that strips them of rights; and because entire industries are adopting these clauses, people increasingly have no choice but to accept them. They must often give up their rights as a condition of having a job, getting necessary medical care, buying a car, opening a bank account, getting a credit card, and the like. Often times, they are not even aware that they have given up their rights.
(4) Private arbitration companies are sometimes under great pressure to devise systems that favor the corporate repeat players who decide whether those companies will receive their lucrative business.
(5) Mandatory arbitration undermines the development of public law for civil rights and consumer rights, because there is no meaningful judicial review of arbitrators' decisions. With the knowledge that their rulings will not be seriously examined by a court applying current law, arbitrators enjoy near complete freedom to ignore the law and even their own rules.
(6) Mandatory arbitration is a poor system for protecting civil rights and consumer rights because it is not transparent. While the American civil justice system features publicly accountable decision makers who generally issue written decisions that are widely available to the public, arbitration offers none of these features.
(7) Many corporations add to their arbitration clauses unfair provisions that deliberately tilt the systems against individuals, including provisions that strip individuals of substantive statutory rights, ban class actions, and force people to arbitrate their claims hundreds of miles from their homes. While some courts have been protective of individuals, too many courts have upheld even egregiously unfair mandatory arbitration clauses in deference to a supposed Federal policy favoring arbitration over the constitutional rights of individuals.
The Chamber loves mandatory arbitration. The Chamber represents big business. Big business hates juries. Too much unpredictability with jury verdicts.
Here's an example of how mandatory arbitration clauses work. Say you hire a lawyer. Then you decide you have to sue your lawyer. Perfectly within your rights to do so as long as you have a valid cause of action. If the contract that you signed with your lawyer has an arbitration clause, you would be precluded from having your case heard by a jury. Arbitration clauses typically spell out in small print where, when, how, and by whom your legal dispute can be heard. Arbitration clauses carve out the litigants' rights and favor the drafter of the contract. That's why the Chamber likes these contracts. The Chamber hates trial lawyers and hates litigation.
The skiing story is just part of the Chamber's "Faces of Lawsuit Abuse" campaign which will include the Scott Swimm video clip as well as others coming to movie theaters near you, which will be shown as pre-movie shorts. The Chamber has a lot of money to put into campaigns like this.
Here's the rest of the skiing story. The plaintiff in the case, through his lawyers, sued the boy's father for "negligent supervision". This is a well recognized cause of action in the law. The boy was skiing with his father at the time. The parents' homeowners insurance company, which protected the Swimms for negligence claims, settled with the plaintiff. The parents were reluctant to settle because they wanted to sue Mr. Pfahler because a) Scott's father claimed that the plaintiff assaulted his son,( from the video depicting the collision on the slopes it appears as though the parents are claiming that Pfahler grabbed the boy after the collision and b) the parents wanted to keep the option open to allow Scott to sue Pfahler for some sort of abuse of process claim.
Pfahler's claim may seem distasteful but it sure sounds as though he had a valid cause of action.
To me, the Chamber's video is a bit over the top. It's also a bit ironic that the parents wanted to be able to file suit themselves, but they criticize the plaintiff's right to do so. They are critical of the process, as is the Chamber, but wanted the process to be available for them. That process includes the examination of fact witnesses at depositions conducted by lawyers for both sides in the presence of a stenographer. The competencey and credibility of witnesses, including minors, is evaluated every day in courtrooms across the country by juries, and by lawyers and insurance companies who evaluate cases. Children can, and are, as in the case of Scott Swimm, witnesses to events, and their recollection of those events is part of the evidence.
Remember, this was really a claim for negligent supervision against the parent, Robb Swimm. And remember, the Chamber has a hidden agenda which includes reducing the number of cases that can be heard by juries.
I recently bought a tennis racquet online. I priced it out on tenniswarehouse.com, then bid on the same racquet brand new on ebay. I have not gotten it yet. I hope it works out. If it does, I saved about $30.00.
Obviously more of us are conducting business online. This extends to insurance purchases, including casualty insurance and motor vehicle insurance. Companies like Geico and Progressive operate online and in person.
But what does this mean for the consumer? Certainly purchasing auto insurance policies online means you're going to get less information in the application process than you would by speaking to a reputable insurance agent from whom you could at least ask questions about your insurance needs, including the necessity of buying uninsured motorist coverage(UM) underinsured motorist coverage(UIM), and the difference between limited tort, and full tort. If you've been to my web site, or read my book,you would know that UM and UIM, although not mandated by Pennsylvania law, are absolutely necessary coverages to protect you and your family from uninsured and underinsured drivers. You would also know that limited tort is basically worthless coverage, and that the only smart choice is to purchase full tort coverage.
But in order to "waive" your ability to purchase UM and UIM, and in order to "waive" your rights to full tort coverage, Pennsylvania law requires that you sign "waiver forms." Otherwise your selections for less comprehensive coverage may be able to be invalidated. Recently enacted laws do hold that electronic signatures are valid. But the Pennsylvania law which controls the purchase of automobile insurance specifically requires signatures from the insured so that a knowing waiver of a prospective insured's rights are validated. Therefore, although Geico and Progressive may be finding it more economical and, in fact, more profitable to be selling online, they may be opening the door to their insureds' challenging the validity or lack thereof of less expensive insurance coverage purchased online because of lack of proper signatures.
Last week Governor Rendell stated he will not be seeking to renew the state funded subsidy for medical malpractice premiums known as MCARE due to the fact that any "medical malpractice crisis" is officially over. The Medical Care Availability and Reduction of Error Program, or MCARE provides $500,000 in liability insurance in addition to the $500,000 in coverage medical providers must buy from the private insurance market.
MCARE was designed to provide additional professional liability insurance to doctors and hospitals in Pennsylvania at subsidized, and therefore reduced, premium rates.
Statewide, there has been a 41 per cent drop in malpractice lawsuits in the last decade. Judicial rule changes and new laws implemented in 2002 have been extraordinarily effective in abating and reducing the malpractice insurance premium rates, Rendell said at a news conference.
In Pennsylvania, defendants, and the insurance companies who represent them, have the right to have an injured claimant examined by an "independent" doctor so that the doctor can render an opinion as to the physical condition of the claimant and the relation of the injury to the accident. The problem is that these doctors are hired by the insurance companies, so they are anything but independent.
Boilerplate reports, where the doctor uses the same report for each person he or she examines, seeing numerous people in the same day, all without being required to adhere to the doctor-patient privilege, leads to questionable methods of obtaining an "independent expert" opinion. This has been thoroughly looked at in a recent New York Times article about these types of practices taking place in the New York workers compensation system.
The best way for an injured person making a personal injury claim to prepare for these types of exams is to know what to expect. I've written on this subject before. I also make sure my clients are not alone when they attend these exams. That way, an unbiased witness can not only record how the exam was conducted, but can also record what the defense physician asked and said at the exam. If it is different from what's in his report for the insurance company, the doctor can be easily cross examined at trial and be forced to explain the discrepancy.
How is the public to interpret the Fumo conviction? The jury said he sunk himself when he testified that all he was required to do as a state senator was show up and vote. Using taxpayer money to line his own pockets and heavy handing PECO for a shakedown for his own private charity. A politician for the people? Nope. A politician for himself.
Compare the mess at AIG. Edward Liddy, AIG's CEO testified to a Congressional committee, and was questioned about why he thought AIG executives should get $165 million in bonus money funded by the taxpayer bailout. Liddy's rationale for paying the bonuses is because of contractual arrangements with the executives that were in place before the bailout money was paid to AIG.
Liddy is the former CEO of Allstate (from 1995 to 1999, then Chairman of the Board until 2007) where he made over $350 million in salary and stock options, during which time he was behind a targeted plan to deny contractual payments to Allstate insureds.
Liddy's goal at Allstate (which he succeeded in accomplishing) was to radically alter the approach to the business of claims by not paying legitimate claims and making it too expensive for Allstate insureds to litigate their claims. The case that brought Allstate's model to light has been litigated in New Mexico.
Liddy's wealth includes a retirement package from Allstate worth over $70 million. Remember, he wants the AIG execs to get their taxpayer supplied bonuses.
Our founding fathers did not foresee subprime mortgages, credit swaps, collateralized debt obligations, and the housing bubble, but they did foresee the need to preserve the rights of citizens to have jury trials in civil cases. The Seventh Amendment to the U.S. Constitution reads as follows:
Amendment VII: Rights in Civil Cases
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
In today’s legal community are citizens getting their day in court in front of a jury of their peers? The answer is generally no. There are several reasons for the lack of use of the jury trial as a means to resolve dispute is civil cases.
Rise of contractually mandated arbitration clauses. For example, take a look at the typical automobile insurance policy. It usually contains a clause to the effect that in uninsured or underinsured motorist cases, each party will choose an arbitrator, and the two arbitrators will select a neutral. (In Pennsylvania, since the holding in Insurance Federation vs. Koken, auto carriers are no longer required to have arbitration clauses in their policies. The implications of Koken, and whether the ruling was more favorable to claimants or to insurance carriers will be left for another article.)
Impossible time requirements and notice of trial imposed on litigants by the Courts. For instance, it is not uncommon in Philadelphia and Montgomery County to be on twenty four hour notice, or less, of an upcoming trial. So while litigants are made aware that their case may be called for trial in any particular month, the litigants are not given anything close to a date certain for trial. This can place severe constraints on parties, witnesses and expert witnesses. It is no surprise, therefore, that some counties impose these constraints on parties as a method of clearing their dockets of cases by forcing the parties to settle.
Lack of trial experience of counsel. ADR is a good way to resolve some personal injury cases. But, with the increase of the use of ADR, and mandated arbitration, fewer and fewer personal injury lawyers are gaining actual jury trial experience.
Trial lawyers represent people who can least afford lawyers, which is why the contingent fee system in personal injury cases is so important to ensuring access to the court system. It evens the playing field. While alternative means of resolving disputes is useful, helpful and appropriate in some cases, other cases require a hearing in front of a jury as a means of maximizing a client’s claim. As long as the client is informed of the trial risks and related expenses, counsel must be ready to utilize the jury system.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases. He is a member of the Million Dollar...More...
