Pennsylvania Injury Law Report

What happens when the insurance adjuster knocks on your door with a release and check in hand?

Stuart A. Carpey — Thu, 04 Mar 2010 17:16:37 -0500

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.

Pennsylvania's Cell Phone Driving Ban

Stuart A. Carpey — Wed, 03 Feb 2010 15:26:57 -0500

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

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

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

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

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

Pennsylvania Car Accident Victims Are Catching On: In "The Great Recession" Car Insurance Companies Are Not Going To Treat Them Fairly

Stuart A. Carpey — Sun, 24 Jan 2010 16:05:18 -0500

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.

Thinking About Lying On Your Auto Insurance Application? Think Again

Stuart A. Carpey — Sat, 26 Dec 2009 10:55:36 -0500

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

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

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

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

Will Cell Phone Companies Be Held Responsible For The Negligent Acts Of Drivers Talking On Their Phones?

Stuart A. Carpey — Fri, 18 Dec 2009 13:32:22 -0500

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

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

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

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

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

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

What Does Your Lawyer Know? Hopefully More Than One Particular Luzerne County Assistant District Attorney

Stuart A. Carpey — Thu, 10 Dec 2009 22:23:58 -0500

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bethlehem Couple Charged With Theft For Not Leaving A Tip At A Restaurant!

Stuart A. Carpey — Fri, 27 Nov 2009 15:53:23 -0500

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

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

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

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

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

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

Specialists Always Needed? Don't Get Rid Of My Cardiologist In The Name Of Health Care Reform

Stuart A. Carpey — Thu, 12 Nov 2009 12:13:17 -0500

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

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

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

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

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

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

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

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

Rush Limbaugh Must Be Right Because He Says He Is

Stuart A. Carpey — Tue, 27 Oct 2009 11:53:12 -0500

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

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

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

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

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

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

Ah, the dittoheads have to suffer on.

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

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

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

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

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

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

The Importance Of Being Able To Text While Driving

Stuart A. Carpey — Sat, 24 Oct 2009 09:58:35 -0500

ARE YOU CRAZY!?

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

Her hands were not on the steering wheel.

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

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

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

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

How stupid are these people!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Balloon Boy Hoax And How It Relates To Deposition Testimony

Stuart A. Carpey — Mon, 19 Oct 2009 15:25:59 -0500

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

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

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

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

Lesson here? Tell the truth at your deposition.

Electronic Communication In The Courtroom

Stuart A. Carpey — Mon, 12 Oct 2009 14:00:37 -0500

The legal system as a rule is slow in adapting technology. For instance In the federal courts,e filing, that is, the filing of pleadings and other legal documents on line, is mandatory; but of the local counties, only Philadelphia mandated e filing in January 2009. In most other counties you can check dockets, but that's about it.

How about in jury trials- can or should jurors be able to text or tweet about the goings on in the courtroom? No way. It jeopardizes the reliability of the ultimate verdict.Jurors going home at night and searching Google for information about the case they they are sitting on? It just does not work that way. Allowing jurors to do that would be equivalent to throwing the rules of evidence out the window.

And if you text in court and you are a participant in the proceedings? Forget about it. You could find yourself in jail. That's what happened to Susan Henwood, mother of four, in April 2009. A Utah judge found her in contempt of court for texting her husband, who was not in the courtroom at the time, " they're coming for the Polaris Ranger", a pick up truck owned by the Henmans which was part of a collection dispute. She spent two days in jail for warning her husband in advance to move the pick up so it could not be scooped up in the collection case.

The Luzerne County Fiasco and Pennsylvania Accident Claims

Stuart A. Carpey — Tue, 22 Sep 2009 22:47:20 -0500

I previously wrote about the two Luzerne County judges, Mark A. Ciavarella and Michael T. Conahan who pleaded guilty in February to sentencing juveniles to secure detention facilities from which they received $2.6 million in kickbacks. Others associated with these events have also been charged.

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.

The Lesson Of Serena Williams' Foot Fault At The US Open To Personal Injury Litigants

Stuart A. Carpey — Thu, 17 Sep 2009 07:35:21 -0500

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.

Chrysler And GM Reversal On Liability Claims

Stuart A. Carpey — Fri, 11 Sep 2009 07:58:46 -0500

Chrysler has now agreed to cover defective product liability claims that occur after the company came out of bankruptcy protection as of June 10, 2009. Still, approximately 300 claims ending before the company emerged from bankruptcy protection will not be covered.

In a press release dated August 28, 2009, the New Chrysler's senior Vice President, John Bozzella, stated "while Chrysler still faces challenges, we are confident that the future viability of the company will not be threatened if we accept these claims. We want our customers to feel comfortable and confident buying, driving, and enjoying one of our vehicles."

In testimony involving the bankruptcy hearing for Chrysler in May 2009, CEO Bob Nardelli confirmed injured consumers with liability claims against Chrysler would have to proceed against a bankrupt Old Chrysler, meaning those injured individuals would have no recourse for their personal injury claims against Chrysler.

The testimony of Nardelli in front of the bankruptcy court last May is astounding. Here's what Mr. Nardelli said at page 422 of the actual transcript.

The Court: Sir, you have millions of customers who own vehicles right now made by Chrysler. And when these customers find out their vehicles may be worth less because if there is a problem with the vehicle, or an injury, something that is not covered by the warranty which is being assumed, is that going to make those people less likely to buy cars when they want to buy a new car from NewCo?

Nardelli: ...customers might be willing to take the risk if it had a very attracive price on it.

The Court: Okay. So if Chrysler isn't willing to stand behind-and by that I mean NewCo-injured customers and people who have things that are not covered by the warranty on the old cars, doesn't that send a signal to the market that the cars from NewCo you should also avoid?

Nardelli and the boys at New Chrysler finally got it. Consumer groups had been pushing the FTC to put a skull and crossbones sticker on any used Chrysler car to warn consumers about problematic Chrysler vehicles . That couldn't have helped new car sales for the New Chrysler. In other words, any connection between "Chrysler"and "safety" would have been destroyed. Chrysler's team's first instinct was to cut out all prior liability claims. When the bankruptcy court and public opinion made it clear that the New Chrysler's name would be irreparably damaged if the company did not pick up prior liability claims in effect before the bankruptcy, the New Chrysler people changed their tune. But let's be clear; it wasn't because they felt any moral responsibility to do so.

Chrysler's decision follows that of GM's, who, under pressure from state attorneys general, agreed to assume responsibility for product liability claims caused by vehicle defects after the auto maker emerges from bankruptcy protection. GM's decision was made in late June 2009.

"No Government Bureaucrat Will Come Between You And Your Doctor" and Protection For Doctors From Malpractice Lawsuits

Stuart A. Carpey — Mon, 31 Aug 2009 08:16:50 -0500

As the health care reform debate intensifies, it is apparent that malpractice reform is not a key part of the President's agenda. Though it certainly is not excluded from the debate. Will medical malpractice protection for health care providers be back doored into a final bill on health care? Are the two issues necessarily linked? What would happen to malpractice insurance premiums if malpractice standards were federalized? (I suggest malpractice insurance carriers would not be pleased because their ability to vary rates based upon specialty and region would be controlled. But that discussion has to be left to a subsequent post).

President Obama has repeatedly made the statement that "no government bureaucrat will come between you and your doctor." He stresses in TV talk shows, town hall meetings and in his June 2009 speech to the American Medical Association that "if you like your doctor, you keep your doctor, if you like your insurance company, you keep your insurance company."

Is the president suggesting connecting malpractice reforms to doctors and hospitals who would follow government guidelines? This is what he said in the speech:
Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don't get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I'm not advocating caps on malpractice awards -- (boos from some in audience) -- (laughter) -- which I personally believe can be unfair to people who've been wrongfully harmed. But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines.

Is he suggesting 1) complete preemption of malpractice lawsuits and 2) complete insulation from malpractice liability for a doctor that provides care which meets a government checklist?

It does not appear, yet, that is direction of the debate. One glaring reason? The doctors and hospitals that provide care which does not adhere to the checklist, even for good reason, may expose themselves to liability. Maybe the checklist becomes outdated and an advancement in clinical diagnosis calls for test on a patient that isn't on the checklist. Is a doctor liable for a bad result by going beyond the checklist even if the checklist is not in the best interest of the patient?

"Evidence based guidelines" mandated by bureaucrats in Washington could end up being a double edged sword for doctors.

Robert Bork: Tort Reformer and Hypocrite

Stuart A. Carpey — Fri, 21 Aug 2009 16:17:47 -0500

Tort reform is a buzzword for limiting the average guy's rights to the court room by big business and their supporters. When one time Supreme Court nominee Robert Bork settled a case against Yale University last year for injuries he sustained when he fell at the alumni club, he reached the height of hypocrisy.

Bork sought $1 million in damages, claiming the Yale Club was negligent in not providing a handrail or stairs to the stage on which he was set to deliver a speech in early June 2007. He was 79 years old at the time. His lawsuit stated the fall caused a large hematoma to form on his leg, inflicting "excruciating pain" and requiring surgery and months of medical treatment.

He is considered one of the leaders of the tort reform movement. This is a man who spent a large part of his professional life going out of his way to limit the ability of people to seek compensation for personal injuries. I guess his own rules don't apply to him, and that's the irony. He should have and did have the right to be compensated for what sounds like pretty serious injuries. Everyone should, for legitimate claims. Taking those rights away from people is just dead wrong. I wonder if Bork realizes that now, late in his life.

Lenny Dykstra and Large Law Firm Difficulties

Stuart A. Carpey — Tue, 11 Aug 2009 18:18:15 -0500

Two articles caught my attention today in the Philadelphia Inquirer business section. The first had to do with the number of increased bankruptcy filings. The author talked about bankruptcies among the rich and famous, including that of former Phillie Lenny Dykstra who apparently owes between $10 and $50 million. I am no bankruptcy maven, and there may be very good reasons Mr. Dykstra is pursuing bankruptcy, perhaps to protect his other assets from creditors. Sure seems like he was irresponsible with the large sums he made as a player.

The second story I read today was about the trials and tribulations of large law firms who are having a tough time in the current recession because big firms, as the writer puts it, don’t have coherent business models.

That’s surprising to me. Having a business plan starts with putting on paper your purpose for being in business. For instance, mine is to have clients who are regularly informed of the status of their personal injury case and who are kept informed of the process throughout the litigation of the case. This creates a steady stream of satisfied customers who speak well of me and my firm, simply because they are informed. Of course, I am in business to make money. But, as far as I am concerned, that cannot be the primary purpose of my business. If my primary goal was simply to make money, my clients and their cases would become a secondary concern. It’s a simple business plan that is regularly communicated to my staff.

Incidentally, I have found that doing right by my clients equates to better settlements and verdicts for my clients. My clients are well informed of the risks of both settlement, and trial. This process of constantly keeping my clients educated about their case leads to happier clients, who then refer more clients to me. No surprise there.

At a minimum large law firms need to end the excessive waste of time, and waste of their clients’ money. Hourly billing rates by defense firms with no end in site in the litigation of a case, the filing of needless motions (something I see every day in the personal injury cases I litigate for my clients) is sure to raise the ire of a client, big or small. It’s simply irresponsible money management.

AIG's Hank Greenberg: Who Is He And Why Is The Fact That He Has Agreed To Pay The SEC $15 Million Important?

Stuart A. Carpey — Fri, 07 Aug 2009 16:20:13 -0500

Maurice “Hank” Greenberg was the poster child for tort reformers. The insurance industry loved him. Hank is the 84 year old former chairman of AIG. (AIG has changed it's tarnished name since the taxpayer bailout). Hank never liked the fact that the average guy injured through no fault of his own had the right to sue to seek fair compensation. Here's a portion of a "tongue and cheek" description of Hank Greenberg from the July 2006 issue of Trial magazine.

It took Hank nearly thirty years to build a multibillion-dollar fortune. Throughout those years, Hank was constantly being victimized. He was victimized by a civil justice system that forced his company to pay for the medical bills of individuals injured by his insured. As if that wasn’t enough, he was most recently victimized by Eliot Spitzer, the New York Attorney General who has alleged that Hank made his billions through illegal business practices. Thanks to Mr. Spitzer, Hank was kicked out of the company he built, and he was even forced to transfer over $1 billion in assets into his wife’s name.

Hank loved to beat up on trial lawyers. In February 2004 he compared the debate over reforming class action litigation to the White House's 'war on terror'…. It's almost like fighting the war on terrorists," Greenberg told Boston College's Chief Executives' Club. "I call the plaintiff's bar terrorists." So let's get this straight. Right after 9/11, he's referring to a group, whose positions he opposes, as terrorists!

Yesterday Greenberg agreed pay $15 million to settle fraud charges filed by the Securities and Exchange Commission. The charges stem from an accounting scandal that led to Greenberg's resignation as the head of AIG in 2005. The next year, AIG paid $1.6 billion to settle charges that it manipulated its financial statements.

Greenberg's legal troubles are not over. He faces civil fraud charges by the New York Attorney General and remains under criminal investigation in one manner relating to AIG's accounting issues. Federal prosecutors, who brought a criminal case against one AIG executive who was convicted last year of inflating AIG's reserves by $500 million in 2000 and 2001 through fraudulent reinsurance deals, have identified Mr. Greenberg as an unidentified co-conspirator; basically they believe he took part in the fraud scheme but didn't have enough evidence to convict him, the Wall Street Journal reported today.

By the way, how much money did the bailout of Hank Greenberg's AIG cost the United States taxpayers? At last count $182 billion. Hank fleeced AIG's shareholders to make his billions, exposed AIG to massive liabilities, and now the taxpayer is left picking up the former tort reformers' poster child's mess. What happened here?

The true face of tort reformers has been exposed for what it really is.

Should States Attorneys General Rethink Outsourcing Prosecution Of Mass Tort Civil Actions?

Stuart A. Carpey — Thu, 30 Jul 2009 22:18:01 -0500

No. They can't afford to. Not in this economy. Not in any economy. It makes sense for states to outsource to avoid unnecessary overhead. California is issuing IOU's in lieu of checks to their vendors. If the Attorney General of the State of California approaches a trial lawyer for purposes of pursuing private litigation on behalf of California, are the citizens of California well served. You bet they are. Trial lawyers take on cases on a contingency fee basis, at great risk to themselves because there is no guarantee that they will be paid at the end of the case. Their financial success in the case is contingent on their successful litigation and trial of the case. They bear all the costs. The state typically pays none of the costs. Trial lawyers act as private regulators where the state legislature cannot or will not act, or where the state attorney general lacks the resources to prosecute.

Pennsylvania Governor Ed Rendell has been bashed in the media of late, recently in the editorial page of the Wall Street Journal, for participating in this practice. The case involves Pennsylvania's hiring of a Houston law firm, Bailey, Perry & Bailey to litigate a case against Jansen Pharmaceuticals over the marketing of it's antipsychotic drug Risperdal. The Bailey firm contributed to the Governor's campaign. Certainly this is an unsavory fact, but not necessarily grounds for disqualification.

The Wall Street Journal editors are wrong, however when they state that the Pennsylvania Supreme Court's intervention before the litigation is concluded is "remarkable." Not so. The Court is responding to the defendant's request for an interlocutory appeal, which is encouraged by the Pennsylvania Rules of Civil Procedure to address issues which may have a bearing on other cases or which may curtail the litigation in the case at issue.