What is a hit and run accident in Pennsylvania? If you have been unfortunate enough to have been involved in an accident like this, what can you do? Can you get compensated for your injuries and damages?
The answer is yes, if you have purchased uninsured motorist coverage.
To prove an uninsured motorist claim in a hit and run case, you have to prove that the driver that hit you was negligent, and that you sustained actual injuries. There is no requirement that there be actual physical contact between your car and the at fault driver’s car. You must however report your accident to the police with 30 days of the accident or sooner, and you must be able to prove that you made reasonable efforts to obtain the hit and run driver’s information, like his or her name, phone number, address, or tag number, if you can. Of course in some cases that is simply not possible. But, there may be witnesses at or near the scene that can help you or your personal injury attorney track down the at fault driver.
In this type of case, your own insurance company steps into the shoes of the hit and run driver. You make a claim to your own carrier, and they will hire a lawyer to defend the claim made against them.
Uninsured motorist coverage is not mandatory in Pennsylvania. It is an optional coverage. So, unfortunately, some people have no insurance uninsured motorist coverage whatsoever for hit and run accidents.
For more information on how to make sure you have the right coverage on your car, truck or motorcycle policy, take advantage of our offer to have Stuart Carpey review your policy at no cost to you.
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.
As reported recently in the International Herald Tribune (12/29/11) and in the New York Times (8/22/11) in excess of 5,000 lawsuits have been filed against medical product manufacturers who produced and sold faulty hip replacements, leaving many patients crippled and facing further surgery. In fact, the DePuy Orthopedics division of Johnson & Johnson voluntarily issued a recall of it's artificial hips in August 2010.
The most widespread medical implant failure in the United States in decades, involving thousands of all-metal artificial hips that need to be replaced prematurely, has entered the money phase. Medical and legal experts estimate the hip failures may cost taxpayers, insurers, employers and others billions of dollars in coming years, contributing to the soaring cost of health care. The financial fallout is expected to be unusually large and complex because the episode involves a class of products, not a single device or just one company. The case of Thomas Dougherty represents one particularly costly example. He spent five months this year without a left hip, largely stuck on a recliner watching his medical bills soar. In August, Mr. Dougherty underwent an operation to replace a failed artificial hip, but his pelvis fractured soon afterward. The replacement hip was abandoned and then a serious infection set in. Some of the bills: $400,776 in charges related to hospitalizations, and $28,081 in doctors' bills....The so-called metal-on-metal hips like Mr. Dougherty's, ones in which a device's ball and joint are made of metal, are failing at high rates within a few years instead of lasting 15 years or more, as artificial joints normally do.The wear of metal parts against each other is generating debris that is damaging tissue and, in some cases, crippling patients.
But who is going to be the financial beneficiary of these lawsuits? Medicare and private health insurers who paid for the initial surgeries and who will pay for additional surgeries and other medical care to the victims of the faulty implants.
Insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive. Medicare, the government health program for the elderly, is also expected to try to recover its costs....To recoup their expenses, insurers typically notify patients through lawyers that they expect to be reimbursed from any settlement money that patients receive, rather than pursue their own lawsuits with the device makers. Also, Medicare is expected to enforce new laws next year that will make it easier for the agency to recover taxpayer dollars spent treating patients injured by problem drugs and medical devices.
How can this be? How is it that public and private health insurers are first in line to be paid from personal injury and product liability suits from these cases? Shouldn't the injured victim, the patient, be the one to recoup his or her financial and physical losses? The patient, who has gone through the agony of hip replacement surgery, now facing more surgery, is the one who has suffered. Why should an insurance company get a free ride on the back of the injured patient's lawsuit?
It's called subrogation. And although none of my clients are ever willing to accept the concept when first explained to them (and with good reason because it is they who paid for the private health insurance coverage!), subrogation is nevertheless a legal and equitable right of an insurer to be compensated (read: paid back!) for any monies paid on behalf of their insured due to the negligence of someone else. The insurer, be it Blue Cross or Medicare or Medicaid (Department of Public Welfare in Pennsylvania), is, in fact, the first to be paid back before anyone, gets a dime for their pain and suffering. This is true for the attorney that handle personal injury claims. We are not permitted to be paid for the work to generate a settlement or verdict for our clients until the subrogation lien is properly dealt with and paid. (Forget the fact that the personal injury attorney handling cases where a subragtion lien is involved is essentially an unpaid collection agent for the insurance carrier, but that is an essay for another day).
I have written about subrogation may times before. I want ( and need!) my clients, prospective clients, and the public generally to be familiar with the concept, because I don't want them to be surprised at the end of their case. In the eyes of the law, the insurance carrier who pays health benefits to an accident victim is a victim as well, and but for the wrongdoing of the tortfeasor would not have had to pay any benefits.
By now, you may have heard about those pay-as-you-drive insurance policies which have been growing in popularity. If you don’t know about pay-as-you-drive, or per-mile programs, they are individualized insurance policies geared toward people who don’t drive as much as the average driver. Simply put: if you drive less, you pay less. Depending on a driver’s habits, and the policy purchased, a driver could stand to save $150 a year. The program seems great for people who believe their insurance costs do not reflect the time and miles they spend driving.
In recent years, more and more insurance companies are implementing their own versions of per-mile insurance programs. If you purchase your insurance from one of the big name providers, you might be eligible for this policy. Progressive, for example, offers a “Snapshot” program which the company says can lower a driver’s rates by up to 30 percent. Allstate and State Farm offer similar programs called, respectively, “Drive Wise” and “drive Safe and Save.”
How it works and why it is worrisome:
Though some policies allow for self-reports, meaning a driver submits his or her own miles, the majority of per-mile policies require use of a telematics device which monitors and catalogues driving information, including miles driven. The device, which is used in Progressive and Allstate programs, will also store information regarding a driver’s behavior, such as braking and accelerating patterns, and speeding. Insurance policies may also require a trial period of telematics use before offering a driver the per-mile policy.
As I have blogged about before, the use of telematics devices carries with it the fact of having Big Brother (your insurance carrier) peering over your shoulder as you drive. In theory, usage-based insurance programs seem great, but the data collected by the telematics device could hurt you more than help you. If you hit your brakes often, drive over the speed limit, or go driving after midnight when there is a greater risk of accidents, you might find that you are paying more than you thought you would. And if your insurer decides your driving habits are problematic they could slap you with a sizable surcharge. With this in mind, to call these programs “individualized” seems appropriate since it rests on individuals to decide if the invasion of privacy is worth the potential savings.
If you are interested in usage-based programs, you should talk to your insurance carrier or agent to see if you qualify. But make sure you read the fine print; be fully aware of what you are getting into.
This article was written by Daniel Lopez a current student at Villanova University School of Law.
During the summer months most law students work or intern at law firms in order to learn and gain valuable experience about the profession they will soon be entering. In better economic times virtually every law student was guaranteed a position at one firm or another. However, in the new economic climate, summer positions for law students have been dwindling and getting a position is highly competitive.
As a Villanova Law student I began searching for summer jobs at Philadelphia personal injury law firms as early as January. Early on in my search I applied to an open position with Kreithen, Baron & Carpey, where I interviewed with Stuart Carpey. Thankfully, he hired me to work and gain the experience I desperately craved.
Confident with my knowledge and ability I began work immediately after finals. I thought that I would know exactly what was going on because of my law school education. Boy was I in for a surprise. From day one I realized how much I didn’t know and how knowledgeable Mr. Carpey was in the area of personal injury, medical malpractice, civil rights cases, and the litigation and trial of those kinds of cases.
One of the first things Mr. Carpey began talking about when I first started working for him was the difference between full tort and limited tort coverage in car accident cases. I had no clue what he was talking about. So, I had to put my pride to the side and asked what the difference was. Stuart then clearly explained that a limited tort insurance policy is one where the policyholder pays lower premiums but gives up the right to be compensated for pain and suffering if involved in a car accident except where the injuries are quite serious. He explained that a full tort policy allows the policyholder to proceed with a personal injury case and to file suit if necessary for pain and suffering if involved in a car accident, without having to worry about the limited tort threshold. I couldn’t believe I had never heard of full tort or limited tort before. Stuart then handed me both of the books that he has written “Purchasing Auto Insurance In Pennsylvania” and “The 10 Biggest Mistakes That Can Wreck Your Pennsylvania Accident Case.” From that moment, I knew I really didn’t know that much at all about car insurance and how it applied to injured accident victims. Moreover, if I didn’t know the difference between full and limited tort, the odds were that most Pennsylvania drivers didn’t know the difference either. It was frightening to know that many Pennsylvania drivers had unknowingly given up an important right because it would save them a few dollars a month. It also became clear to me, as Mr. Carpey explained, that insurance companies and their agents were doing a disservice to their insureds by not fully informing them of their rights.
Within a few weeks of working for Mr. Carpey, I met a variety of clients and listened to them speak with Mr. Carpey about their injuries. From listening to these discussions I learned how important it was for doctors treating accident victims to fully detail what the injuries were, and to fully document in the medical chart the full extent of their patients’ pain or discomfort. I was surprised to learn that insurance companies go out of their way to minimize an injured accident victim’s claim for damages, and that a complete medical chart is the best way a patient can combat that.
I learned a lot about how Mr. Carpey prepares for depositions and trial, and how it is important to keep your client informed of the process of his or her legal case. I was also part of Mr. Carpey’s program both on the Internet and in his written materials, of informing his clients and the public generally of their rights in personal injury cases.
These are just a couple of the things I learned while working with Mr. Carpey this summer. Now as I enter my final year of law school I will take my experience from this summer and use it to guide me in the future. I can say without hesitation that Stuart Carpey is a great person, mentor, and lawyer, and that this was a great summer experience.
The Mcare Fund was established in 2002 as a way to combat the high medical malpractice premiums charged by insurance companies and paid by physicians and hospitals. The medical malpractice system in Pennsylvania has undergone various changes since the Mcare Fund was put into place in 2002. In his press release, Rendell pointed to an almost 20% decline in insurance rates for the primary level of coverage in the private market. Additionally, there is more competition in the private insurance market with more than 21 new carriers. As a result, more and more doctors and hospitals have an adequate amount of medical malpractice insurance and they are paying less for it.
In 2009, Rendell stated that he would not seek to renew the Mcare Fund and that the reform of medical malpractice was complete. He did not see any need for further improvements. Despite this declaration, the Mcare Fund is likely to be extended. Rendell is said to have some reservations on certain language that returns unspent money to hospitals instead of rolling it over into the next year's fund. It is clear, however, based on the changes to the system, including the requirement of a certificate of merit and stricter venue rules, that Pennsylvania has succeeded in driving down the rates that insurers have charged doctors and hospitals for malpractice coverage.
While “legal reform” is always a flashy campaign platform, it is important for voters and political commentators to understand the consequences associated with passing legislation such as the Fair Share Act. Anyone, no matter what their political affiliation, can be involved in an accident and need compensation for their losses. If passed, the Fair Share Act would limit every accident victim’s ability to be compensated after an injury.
Currently, in civil cases, Pennsylvania’s procedural rules of joint and several liability hold that in a multiple defendant case, where more than one defendant is found liable, the plaintiff can recover all, or part of, his or her judgment from any liable defendant, even if a defendant is minimally liable. This policy is designed to protect plaintiffs by ensuring that they will be able to recover their jury verdict and be fully compensated for their injuries.
The Fair Share Act (as previously proposed) would replace joint and several liability in cases where there is more than one liable defendant. However, under the Fair Share Act, if a defendant is found less than 60% responsible for the plaintiff’s damages, that defendant would be required to pay damages only in the amount equal to their percentage of responsibility as determined by a jury.
Obviously under the present system of joint and several liability, the Pennsylvania legislature and courts have placed the plaintiff’s rights higher than those of the defendants in civil cases involving multiple defendants. By naming the proposed legislation the “Fair Share Act,” proponents are espousing that defendants in civil cases are presently paying more than their fair share in cases where there is more than one defendant.
Yet, if the Fair Share Act is resurrected, it would have a devastating impact on injured plaintiffs and their ability to collect damages. If, for instance, in a typical car accident case involving multiple defendants, where an uninsured party is found responsible for most of the damage award and that defendant cannot pay for lack of insurance, the plaintiff would no longer be able to collect monetary damages from an insured defendant if that defendant is less that 60% at fault. It is easy to argue that this may be fair to defendants. But where does that leave the injured victim who through no fault of his own sustained personal injuries, wage loss and incurred medical bills? The Fair Share Act would simply leave many plaintiffs vulnerable and would expose Pennsylvania accident victims to the very real possibility of being left under compensated. We would see many situations where plaintiffs “win their case” yet remain responsible for payment of their own medical bills which would otherwise, under the present rule of joint and several liability, be the defendants’ responsibility to pay. We would see many situations where the injured plaintiff loses time from work due to someone else’s negligence, yet never receive fair payment for his or her wage loss from the party that caused the plaintiff’s injuries which kept the plaintiff from working.
The Fair Share Act has nothing to do with “excessive or frivolous lawsuits” as Corbett states on his website. On the contrary, the abolition of joint and several liability in Pennsylvania and replacing that with some version of the Fair Share Act has everything to do with leaving Pennsylvania accident victims vulnerable to the interests of insurance companies who would be in a much better position at trial. The Fair Share Act would allow insurance companies with policy holders found to be less than 60% liable for damages not responsible for payment of the plaintiff's verdict. Leaving plaintiffs under compensated has never been the policy of the Pennsylvania courts and legislature, and Corbett's proposed change is by definition anti-consumer and anti-accident victim.
With AdultBasic set to end, critics of Blue Cross are unhappy, and with good reason.
During the late 90’s, Pennsylvania’s attorney general, along with other states, successfully settled a case against major tobacco, the funds of which went on to create AdultBasic, with added support by the Independence Blue Cross.
AdultBasic is a health insurance program designed to give low-income families limited health benefits for $36 per person, per month. At the moment, there are about 46,000 Pennsylvanians enrolled in the adultBasic plan, with about 400,000 on a waiting list.
During a time when universal healthcare has yet to be realized, programs like AdultBasic are necessary for families with few options. But Blue Cross wants to end AdultBasic by Dec. 31, 2010.
This is now a political issue. Democratic gubernatorial candidate Dan Onorato demanded that Independence Blue Cross extend AdultBasic’s expiration to June. 30, 2011, which they did, in effect buying enrollees a bit more time.
The extension, however, may not be enough to satisfy advocates in favor of the program. As long as funds allow for it, it would make more sense to let the program expire in 2014, when healthcare reform will finally be put into action.
Marc Stier, Pennsylvania state director of Healthcare for America Now, told Philadelphia Inquirer’s Jane Von Bergen, “It’s important for AdultBasic to continue because 46,000 people have no other way of getting health insurance coverage until the federal health reforms begin in 2014.”
But not everyone agrees with the opinions of Onorato and Stier. Von Bergen also offers a quote from a spokesman for Pennsylvania’s Attorney General Tom Corbett (also running for governor), who says, “to extend benefits to 2014 seems to be fiscally irresponsible at this point.”
The fate of AdultBasic is still uncertain, but healthcare providers and legislators now have until June 2011 to try and bring the issue to an agreed upon conclusion. Hopefully they will keep the interest of low-income Pennsylvanians in mind.
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!"
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.
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.
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.
(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.
Philadelphia Two Penn Center Suite 200 1500 John F. Kennedy Blvd.
Pennsylvania personal injury lawyer & attorney Stuart Carpey of Carpey Law, offering services related to automobile accidents, premises liability, construction accidents, medical malpractice, products liability, work related incidents,, federal civil rights claims & insurance bad faith, serving Bucks, Berks, Carbon, Columbia, Lackawanna, Lancaster and Schuylkill counties, and across Eastern PA.