IT IS NOT SAFE IF SOMEONE "WAVES" YOU ALONG IN TRAFFIC

Earlier this month I met with a gentleman that was stopped waiting to take a left turn onto a main roadway.  To his left was a large bush.  In front of him was another vehicle facing the opposite direction at a stop sign.  The other vehicle "waived" him to take his left turn indicating it was safe.  It was not safe.  Coming the opposite direction was a vehicle that, according to the gentleman, had veered around a garbage bag in the middle of the street (you can't make this stuff up).  According to the police report the other driver was in his correct lane. Crash ensued.

I can't tell you how many times someone has come to my office wanting to sue the person that waive them through.  A really bad fractured ankle case comes to mind where my client was the victim of the incorrect waiving.  The first issue is that nobody ever gets the information on the person that waived them through.  They aren't listed on police reports because they leave the scene.  That, plus who is going to admit that they were wrong and waived someone into traffic?  That is the first problem.  The second problem is that you can't rely on a third party to make driving decisions for you.  As such, suing them would be a waste of time. 

The other thought this potential client had was suing the government for failing to make the bush trimmed.  The problem here is that suing people is expensive so you must be really hurt.  Suing the government is very expensive and there is the issue of sovereign immunity.  In this circumstance the damages would not have offset the costs of litigation thus making it a bad situation for the potential client.

Long and short: DON'T TRUST OTHER DRIVERS

GET A LAWYER DAY 1

I'm working on a case today where my client hired me eight months post crash.  In these scenarios I can't fix past damage.  For example, normally I can attempt to minimize my clients owed medical bills by putting them through health insurance if the provider takes health insurance.

Hospital bills are usually the issue here.  One visit can cost $8,000.00.  And Personal Injury Protection (PIP) usually covers the first $10,000.00.  If the hospital bill is submitted to PIP it is usually paid in full leaving $2,000.00 for future treatment. However, if you put that $8,000.00 bill through health insurance it averages out to $2,000.00 and PIP can be directed to pay that leaving you with $8,000.00 instead of $2,000.00.  If you have $8,000 for future treatment its going to make your payback on total medicals a lot lower and thus your recovery bigger (generally speaking).

The average person doesn't know any of that because they don't do this every single day so when a client comes to me eight months post crash and owes money to providers that eats into his or her recovery.

Another issue is insurance companies trying to pretend they are your friend.  My experience has been the adjusters aren't asking you questions to help you.  They are asking questions to try to create problems as far as liability and damages are concerned so when a client provides a recorded statement to a carrier it isn't the best of ideas (generally speaking).  They also want health records releases.  I worked on a case where my client had a lumbar (low back) spine injury 10 years ago, but no problems up until a crash with cervical (neck).  The adjuster wanted to make a big deal about the injury ten years ago.  Is that really acting in good faith?  From my perspective it is not, but they have a job to do in saving the insurance company money so they are going to take positions that are not substantiated.  Finally, the most offensive thing I see is pop out adjusters offering people between $1,000.00 and $1,500.00 right after a crash.  There is NO WAY a person can intelligently determine the extent of their injuries right after a crash.  I've seen an insurance company offer $1,000.00 to a guy with a torn rotator cuff.  That should be illegal.

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Dear Insurance Company, Pay the Deductible and Avoid the Personal Injury Lawyer

A former employee called me last week and told me her father was in a car crash and needed my help.  He had been rear ended by an uninsured driver and wasn't sure what to do.  After speaking to him I learned that he was mostly just pissed at his own insurance company for making him pay a $100.00 deductible on his property damage.  He understandably wanted to stick it to the uninsured driver as well.  Luckily, my client has uninsured coverage and can make a claim.  However, I don't think he would be making a claim if his insurance company just paid for his deductible.  I'd say at least 40% of what I do it related to insurance companies making stupid decisions.  I'm sure if some MBA evaluated this he would tell State Farm to pay the $100.00 deductible and hope this thing will go away.  Instead, I'm making an uninsured claim that won't resolve for less than several thousand dollars.  The insurance company will front that money and then attempt to collect it from the uninsured driver.  Catch is uninsured people don't have money so they will spend a lot of time chasing their tail. I'm not sad about it, but its an inefficiency in our system.

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Insurance Offer Three Days Post Crash

An Allstate Lawyer took my clients deposition last week.  My client was asked about who communicated with her after the crash.  Turns out that an Allstate adjuster called my client a couple of days post crash and offered her $500 for her injuries in exchange for closing out her claim.  My client has an injury that is going to last a lifetime.  The notion that an Allstate Adjuster would call her up a few days post crash and try to resolve her claim is offensive to me.  Here is a person involved in a big crash with serious injuries and Allstate is doing its best to screw the injured person over by resolving it quickly and for less than what the case is worth.

Lets pretend for a minute that my client is in a financial bind and $500 sounds pretty good.  They accept.  From that minute forward they are prevented from further compensation to pay medical bills.  What if my client needed a surgery and didn't have health insurance?  I can see a scenario where the client goes bankrupt on account of the medical expenses.  And all of this because of an Allstate "pop out" adjuster.

There are rules in place that prevent lawyers from communicating with injured persons post crash.  There should be a similar rule for insurance companies.  I might be ok with a rule that allows Allstate to pay 500 bucks up front but preserves the right of the injured party to re-open the claim at any point within the statute of limitations, but allowing unfettered communication to an unrepresented party by a sophisticated insurance company is absurd. 

Nobody ever hears about this stuff and it happens on a daily basis.

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Legal Inefficiency and Pro Bono Lawyering

Every once in a while somebody calls me with a criminal case and asks me to defend them.  Three years ago I stopped taking criminal defense cases, but a few months ago a hockey friend called and asked for help.  He was in the passenger back seat of a car that was stopped for illegal tint.  There was a stolen gun without a magazine under the front passenger seat.  There wasn't anyone in the front passenger seat, but the driver of the vehicle had the matching magazine in his jacket pocket.  Let me repeat that, the driver had the MATCHING GUN MAGAZINE IN HIS POCKET.  The driver denied it was his gun so the cops arrested everyone in the car and charged them with possession of a stolen gun.   The penalty for this is one to five years.  

As a prosecutor you never really think about the fact that defendants need to hire a lawyer.  If I was charging a stranger to defend this case my fee would be $10,000.00.  Catch is my friend doesn't have that type of money.  I'm not writing this because I'm a martyr, but this is a case that needs to be prosecuted against the driver with the magazine.  Its an interesting inefficiency because I can see why they don't want to let my guy out, but at the same time its not a case I would want to prosecute if I was on the other side.  One would hope the driver with the gun in his pocket (who was subsequently picked up on another stolen gun charge) takes this and lets everyone move forward.  We shall see.  If not I'll try it.

Side Note: the arresting officer looks like he belongs in the Sabotage Beastie Boys music video.  Amazing mustache.

Allstate Insurance, Again.

I'm headed to Court this morning because Allstate Insurance has decided they want to try to go around the law.  The Kentucky Supreme Court (KYSCT) decided in Adams v. State Farm (Aaron Murphy argued this case.  He is brilliant.) that an insurance company, when questioning personal injury protection benefits, is allowed to question their insured about the facts of an accident.  All of the medical bills and medical records are submitted to the insurance company for review of treatment.  In making the Adams ruling the KYSCT held that the insurance companies don't get to question about medical treatment/bills.  This makes sense because injured parties aren't medical professionals.  The reason this is important is that nobody remembers whether or not the massage therapist six months ago at the physical therapy clinic massaged them for twelve minutes or fifteen minutes.  In the past insurance companies were allowed to question about injuries/treatment which inevitably led to their clever lawyers trying to trick my clients and make a big issue out of something a lay person stated about medical treatment or something innocuous like whether or not an ultrasound was provided (I had one case where my client thought it was pregnancy ultrasound).  The KYSCT held that if there are questions about medicine that the law provides the insurance companies a means to investigate.  The means is an "independent" medical examination.  The problem from the insurance companies perspective is that the doctors performing these "independent" medical examinations are expensive and that the insurance company also has to prove to the court (aka hire lawyers) to show there is "good cause." This costs the insurance companies money and is more expensive than what they are currently trying to do.

Side note: I've spoken to my clients medical providers and they are willing to answer Allstate's questions about treatment.  Allstate refuses.  I've also had my clients in this case go over all of their medical bills and records.  They did so and submitted an affidavit to the court stating they received the medical treatment submitted to Allstate.  Nonetheless, Allstate won't hassling my clients.

What is really happening behind the scenes is defense lawyers are trying to strum up business and save insurance companies money they ought to pay out.  The way to do that is to hassle insureds and hope they will find a plaintiff's lawyer that won't fight them; or a judge that will allow them to disregard the law.  The worst part is that the insurance companies are fighting their own insureds and attempting to stick them with thousands in medical bills.  The way the insurance companies do this is to sensationalize their pleadings.  This particular insurance company has a lawyer (who I really like) that alleges Allstate has a duty to investigate fraud and that because they have a duty he must put my client through ANOTHER deposition (he already asked about what happened in the wreck).  The issue is that the insurance company lawyer puts nothing of substance in his pleadings.  It is all hunches and speculation.  The law requires fraud to be plead with specificity.  As a result my response is always put your money where your mouth is show us the proof.   I have hunches and speculations about whether or not Allstate insurance underpays minorities on bodily injury claims, but I don't get to put in a pleading and have a judge grant me depositions based on theories.  The issue we run into is that when a judge hears fraud they get understandably apprehensive about not granting the insurance company requests.

I think we can all agree that fraud is something that should be investigated.  The question is by who....should it be insurance companies and their lawyers trying to make a buck?  Or should it be the government authorities?  As a former prosecutor, I believe it should be the latter.

The request Allstate has made today is really on account of my clients traveling twenty minutes to get to a chiropractor for treatment.  My clients are hardworking, responsible people who already told Allstate under sworn statement that they decided to drive twenty minutes for treatment because a family member recommended the chiropractor.  I've driven an hour and a half to doctors in Cincinnati for treatment, but twenty minutes is too much for Allstate.  Its absurd and from my perspective really dishonorable corporate behavior from Allstate.  My guess is some MBA decided this is good corporate policy from a financial standpoint.  It's not good policy for their insureds.

Lets see what the Judge does.

The Defendant Has Insurance

I'm prepping for two upcoming trials.

In 99% of the cases I have the defendant is insured and the lawyer representing the defendant was hired by the insurance company.  In the other 1% of cases the defendant has money.

The first, case I'm working on is a dental battery.  The lawyers from the other side, in an effort to be paid by the insurance company, are trying to change it into a malpractice case (insurance companies don't pay lawyers for solely battery claims as they are usually excluded from coverage). I've continued to tell them this is a battery case and I get why they are trying to argue otherwise $$$ :)  The defendant in this case has assets and this case is the exception to the rule. 

The second case I'm working on is a "he said he said" car crash case.  My client and the defendant both say that the other guy ran the red light.  What I find interesting about this case is the defendant did not go to the hospital post crash despite the fact the EMS personnel was telling him to go.  I don't think he went because I think he passed out at the wheel in a diabetic attack, he has had that happen before.   The defendant did go to the hospital later that day.  I think he didn't go initally because he didn't want records reflecting what happened.  He says his kids were scared that their dad would die so he went home with them.  That doesn't make sense.  Your kids would want you to go to the hospital.  My client fractured his spine in this case.  He has recovered as well as one could, but that is a terrible injury to go through and he still suffers.  I remember meeting him for the first time in his full upper body back brace.  He was wincing the whole time I spoke with him.  The defendant driver is insured which is the norm. The jury won't get to hear anything about the insurance company, but they are on the hook to pay, not the defendant driver.  I wish I had some explanation for this but the rules don't allow me to bring it up.

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