Tuesday, October 5, 2010

Persistence Pays When Dealing With the Government

Part of rebuilding New Orleans caused residents often to be challenged with the task of tracing home titles back potentially hundreds of years. With a community rich with history stretching back over two centuries, houses have been passed along through generations of family, sometimes making it quite difficult to establish ownership.

A New Orleans lawyer sought an FHA loan for a client. He was told the loan would be granted if he could prove satisfactory title to a parcel of property being offered as collateral. The title to the property dated back to 1803, which took the lawyer three months to track down. After sending the information to the FHA, he received the following reply.

(Actual reply from FHA):

"Upon review of your letter adjoining your client's loan application, we note that the request is supported by an Abstract of Title. While we compliment the able manner in which you have prepared and presented the application, we must point out that you have only cleared title to the proposed collateral property back to 1803. Before final approval can be accorded, it will be necessary to clear the title back to its origin."

Annoyed, the lawyer responded as follows:
(Actual response):

"Your letter regarding title in Case No.189156 has been received. I note that you wish to have title extended further than the 206 years covered by the present application. I was unaware that any educated person in this country, particularly those working in the property area, would not know that Louisiana was purchased by the United States from France in 1803, the year of origin identified in our application. For the edification of uninformed FHA bureaucrats, the title to the land prior to U.S. ownership was obtained from France , which had acquired it by Right of Conquest from Spain . The land came into the possession of Spain by Right of Discovery made in the year 1492 by a sea captain named Christopher Columbus, who had been granted the privilege of seeking a new route to India by the Spanish monarch, Queen Isabella. The good Queen Isabella, being a pious woman and almost as careful about titles as the FHA, took the precaution of securing the blessing of the Pope before she sold her jewels to finance Columbus 's expedition. Now the Pope, as I'm sure you may know, is the emissary of Jesus Christ, the Son of God, and God, it is commonly accepted, created this world. Therefore, I believe it is safe to presume that God also made that part of the world called Louisiana . God, therefore, would be the owner of origin and His origins date back to before the beginning of time, the world as we know it, and the FHA. I hope you find God's original claim to be satisfactory. Now, may we have our damn loan?"

The loan was immediately approved.

(These are the same geniuses charged with the Government mortgage bailout.)

Monday, June 14, 2010

When in Doubt -- Revisited

So if you go back to last year, you'll see my first post about the importance of testifying truthfully. Recently, I ran into yet another example of how exaggeration and dishonest testimony can blow up in ones face.

I was defending a client who had been the at fault driver in a very minor bumper tap rear-end accident. She had come around a corner and - unexpectedly - came upon a line of cars stopped at a stop sign. She attempted to stop but was unsuccessful before running into the back of another car. That car was, then, pushed into a third car ... and it was the passenger in that third car that was claiming injury. The damage to the rear of that third car was barely perceptible.

To be fair, prior to the accident, the passenger had been off work for almost 2 years because of an 'on the job' injury to his shoulder and neck. He had undergone a shoulder surgery and two neck surgeries; and although he was still having some neck and arm symptoms just prior to the accident, he was definitely feeling better and his doctor had predicted he could look at returning to work in a few weeks.

So if he had testified that there had been an aggravation of this neck and arm pain from this minor accident, it might have been believable. But instead, his testimony was that he had suffered severe low back pain from the accident. This made no sense! Nevertheless, he ran back to his former doctors and chiropractor, complaining of low back pain and shooting pain down his legs. As most good doctors do, they take their patient at face value and believe the history given. I didn't.

I actually read a few thousand pages of his old medical records and discovered that he had been raising the same low back and leg complaints -- off and on -- for almost 20 years. So imagine my surprise when he testified that these were new symptoms; and that he hadn't treated with anyone for low back pain at any time in his life.

When someone testifies in such a blatantly false manner, attorneys on the 'other side' begin to salivate. And I have to admit I did. So it soon came time for what I like to call the "Perry Mason" moment.

Having had the man confirm -- under oath -- that he had never treated for low back pain or shooting pain down the legs prior to the accident, I pulled out a copy of a pain diagram he had completed just 3 months after the accident. You've probably seen one of these. A picture of a man (or woman); the doctor asks you to mark the areas that hurt and the type of pain experienced. Anyway, the pain diagram I showed him showed he had marked pain in his low back and down his legs -- just as he had testified. I got him to confirm that he had filled out many such pain diagrams over the years.

I then pulled out another one. This one was identical to the one he had just identified; but filled out for another chiropractor he had treated with after the accident. I'm sure he recognized the form. I asked him if this was one he had completed, too; complementing him about how it seemed quite consistent with the other one. He agreed; and acknowledged that it, too, represented the pain he was experiencing shortly after the accident.

Then came the "Perry Mason" moment. You see, I had actually 'whited out' the date of the second pain diagram. I then pulled out the original. The diagram was the same. The only difference was the date. The man had created the "consistent" pain diagram 2 years BEFORE the accident. I then was able to disclose dozens of pages of medical records in which he had treated for low back pain and leg pain during the many years pre-accident.

Needless to say, his case fell apart. He was awarded significantly less than ½ of what my client had offered to settle for weeks earlier. Had he just been honest, he would have 'scored' a settlement that would have paid him some 2½ times what he was awarded after his 'less than candid' testimony.

A word to the wise ... just tell the truth.

Tuesday, April 20, 2010

Liquor Liability - Who's At Fault

The answer, of course, is YOU! If you drink and drive, and you get into an accident; YOU are at fault. Man (or woman) - up!! How many times do we hear stories of someone who says "I only had a couple," and their blood alcohol content is twice the legal limit; and they lost control of their car and smashed into something (or worse -- some one).

That doesn't mean you can't have a beer, get into a car, and drive away. Of course you can. The problem is deciding where the line is. There is no bright line. There is no restrictor that measures your abilities before you get behind the wheel. Everyone has their own threshold. Some people can down a 6-pack without a problem. Others can't drink an ounce without feeling dizzy. It's up to YOU to know your limit; and here's the hard part -- be able to recognize it before you get there.

But I'm not here to talk about the criminal responsibility of a DUI. We'll save that for another chat. Rather, I wanted to talk about the civil liability aspect. First, despite my soapbox, just because you're under the influence doesn't necessarily mean you are automatically responsible for an accident. For example, if you are driving down the road under the influence of alcohol, and you are following all the rules of the road; and someone else is negligent (maybe pulls out in front of you), you are not at fault for the accident. Even if you are rip-roaring bombed!! Of course, you may have difficulty proving you were following the rules of the road since you were blitzed at the time; but that's a separate (albeit important) problem.

But others can share the responsibility for your drunken behavior. For example, the other driver might be at fault. I had a case, recently, where a woman had a couple of drinks after work, and then was heading home. She looked over her shoulder as she merged onto the highway, failing to notice a car that had stopped in the gore point. She ran into the back of the car. And why was there a car stopped in the gore point you might ask? Believe it or not, the driver had pulled into the gore point to allow his teenaged son to take the driver's young toddler son out of the car -- run across the street to the woods -- and go to the "bathroom!" Our client was at fault; and (before coming to me) pled guilty to a DUI. But we were able to convince the other driver's insurance company that he, too, was at fault for stopping in the gore point so his young toddler could relieve himself. That driver's insurance company contributed thousands of dollars to the settlement; monies that the plaintiff (in this case, the 2 minors in the car) would have be hoping to get from my client.

Drinking and driving is a 'no-no!' I'm sure we all can agree on that basic proposition. But options can and do exist ... and are worth exploring when you find yourself on the wrong side of that equation.


Wednesday, July 22, 2009

Auto Insurance Policy Limits - My Two Cents (Part 3)

OK, so in the past 2 entries, I've talked about the basic auto insurance coverages available, and my suggestions for those of modest means. Now, I'd like to discuss policy suggestions for those with more assets --- assets to lose!!

At the risk of sounding like a shill for insurance companies, my general rule of thumb is simply this -- you're much better having MORE coverage!!

I'm not suggesting you put yourself in the poor house over insurance premiums, but if you have assets to lose, and you don't have enough in the way of coverage limits, you might end up there anyway.

In my experience, insurance agents aren't the best guides for this. If you call and say "give me the minimum", that's what they'll do. If you ask, though, you will find that you can pump up those limits at a very reasonable price. Set aside some time to discuss premium pricing with your agent. It's worth it. You'd be surprised how little it costs to bump a $25k policy to $100k; or even $300k!! Ask - ask - ask!! Because every BI policy includes the insurer's cost of having to hire you an attorney, it is the first dollar of insurance coverage that is the most expensive. The insurance company has to pay for an attorney whether you have $25k in limits or $300k in limits. Ask, and then you can make an intelligent decision.

Frankly, $25k in insurance coverage isn't much these days. If you don't have much to lose (like those I was addressing in Part 2), no problem. But if you have six figures of equity in your home; or a couple of nice cars; or stocks and bonds; or a decent income (or incomes), you shouldn't be playing around with a $25k policy. You're inviting trouble.

In fact, while you're talking to your agent about the cost of higher limit BI coverage, ask about an umbrella policy, too. An umbrella policy is one that sits atop your BI coverage -- an extra layer of coverage. It's usually written at a minimum of $1 Million in extra coverage; and often more. And umbrella policies typically provide coverage for some acts not even covered by your basic BI policy. (And the same umbrella policy will usually also provide excess coverage for your homeowner's policy.)

I can't tell you how many times I've seen people sweating out lawsuits because they own way too much and yet are running around with measly coverage. Everyone figures "Not a problem. I'm a safe driver. It won't happen to me." Nonsense. That's why they call it an accident! Protect yourself!

In addition to BI limits, make sure your PD coverage is appropriate. If you are driving around in a $45,000 Suburban, make sure your limits will be enough if someone without insurance hits you and totals your car. How's your medical coverage? If its shaky, consider bumping up your PIP limits. And remember, there are a few 'add ons' you can stick on your policy. Most insurers offer separate rental and towing coverage. This is not for the situation where the other driver is at fault and is insured. Normally, their insurer will pick up your rental and towing bill. But if you are at fault, you'll need separate rental and towing coverage to pay for a replacement rental while your car is in the shop. Again, you'd be surprised how relatively inexpensive this coverage is.

So, simply, the bottom line is this. If you have assets to lose, protect them. Get yourself enough coverage so that you don't have to worry about losing your assets; and get yourself enough coverage so that you, yourself, are covered for damage to your car, medical bills, your own injuries (should the other driver not have coverage), and more.

Remember the old saying, "An ounce of prevention is worth a pound of cure."


Tuesday, July 21, 2009

Auto Insurance Policy Limits - My Two Cents (Part 2)

So for purposes of this discussion, let's assume you are buying insurance; the question will eventually come down to: How much? Well at the risk of sounding like a salesman for my favorite insurance company, under most circumstances, I suggest that 'more is better.'

So let me start with the exception to the rule. You don't need a lot of insurance if you don't have much. For example, let's say you are a 20-year old, out on your own, living in a studio apartment. You make $30k/year and drive an 8-year old Chevy with 95,000 miles on it. In Washington, you are required by law to carry a minimum of $25k in liability insurance. That's the amount that will be available to pay someone else if you are at fault for a car accident. So at the risk of sounding uncaring, if you hit someone and they are seriously injured, your insurance company will probably offer the $25k to settle the claim and obtain a release on your behalf. The injured person's attorney will want to check out your finances to see if they can collect anything from you. With no home, an old car, and a $30k/year job, they'll figure our pretty quickly that you are - essentially - judgment proof. They'll probably take the $25k and then seek additional monies from their own insurer under their own Underinsured Motorist Coverage. So you're off the hook with minimum policy limits.

What about the other coverages? Collision coverage? Comprehensaive coverage? I suppose this depends on the value of your car. The lower the value of your car, the lower the premiums will be for these coverages. However, at some point, you hit the point of no return. In other words, it doesn't make sense to spend $250/year to insure a $750 car with a $250 deductible. So ask your agent to provide you with various quotes; and then make the right $$ decision for you and your circumstances.

PIP and UIM coverages are something you definitely want. PIP provides medical and wage loss benefits - regardless of fault. If you don't have medical insurance, this is a no-brainer!! If you do have medical insurance, you may be able to get away without PIP coverage. But remember, PIP also covers the occupants of your car. Do they have medical insurance? And what will you do if you are injured, and can't work for 3 months? PIP will pay you $200/week during those 3 months. That might not sound like a ton; but when you're looking for money to pay your rent on that studio apartment; it might help a lot!! Your landlord won't excuse your rent payment just because you're hurt. Remember that PIP coverage will be on your policy unless you waive it in writing.

The same is true for UIM coverage. It must be waived in writing or it will exist on your policy. Normally, UIM coverage is written at the same level as your liability (BI) coverage. So if you have a $25k liability limit, the insurance company will automatically give you a $25k UIM limit. If you can afford it, I would suggest asking for a higher UIM limit. Remember, I'm not talking about the money your insurer will pay to someone else if an accident is your fault; I'm referring to money your insurer will pay you if you are hurt because of someone else, and that person doesn't have insurance -- or doesn't have enough insurance. If you are seriously hurt, it would be nice to know that you will be covered for all of your injuries!

So here's the bottom line for those in this financial realm: you're probably OK keeping lower limits on third-party coverage; and probably OK with lower (or no) coverage for your own car; but make sure you have good limits on UIM and, if appropriate, PIP. Talk it out with your agent. Ask for a quote for each type of coverage. A good agent can break it down for you; coverage-by-coverage type. You'd be surprised how little it costs -- for example -- to bump your UIM coverage from $25k to $100k.

Next entry, I'll discuss the same coverage issues for those with more to lose.


Auto Insurance Policy Limits - My Two Cents (Part 1)

Insurance -- unquestionably a necessary evil.

In Washington -- and I dare say in most if not all states -- auto insurance is required. This is going to be a 3-part blog entry. This first part will discuss the basic types of typical auto insurance coverages. Of course, I can't discuss all the details; so feel free to call or contact us if you have specific questions. But I will try to cover the basics. In Part 2, I'll talk about some suggestions for insurance if you're a low wage earner; and in Part 3, I'll make suggestions for those whose income and assets are moving in the right direction (i.e., up!).

The coverage that the State cares about is referred to as "Liability" coverage. This is the insurance that will hire you an attorney and pay a settlement or judgment to someone you have hurt or damaged. Bottom line: you're in an accident that's your fault; the other driver is injured; they sue you. Your insurer hires an attorney for you, and eventually pays the other driver to settle the case - or if the case goes to trial, pays the judgment. Washington requires that drivers carry a minimum of $25,000 in liability coverage (often referred to as BI coverage). That means that if you have the minimum, your insurer will pay up to $25k to resolve your case. If your accident has caused someone to incur more damage than $25k, you can be 'stuck' for anything above the $25k. Your insurer won't pay more than the limits you've purchased. You can, of course, purchase more than the $25k limits. You can purchase limits into the hundreds of thousands -- and as I'll discuss in Part 3 of topic, into the millions!!

Some policies also provide a separate level of coverage limits for damage to the other driver's car. Typically, if you have a $25k BI limits, you may also have a $25k limit for damage to the other driver's car (often referred to as PD coverage).

The two coverages above (BI and PD) are referred to as "third-party" coverage. This means that they are designed to provide monies to 'third-parties' (i.e., other people). The other type of coverage is "first-party" coverage. First-party coverage is designed to provide monies to you - the actual insured.

Personal Injury Protection coverage is referred to as PIP coverage. PIP pays your medical expenses for accident-related medical treatment. Generally, PIP provides up to $10k in benefits for up to a year following an accident. This, too, can be increased. Some PIP policies will pay up to $30k for 3 years following an accident. When referring to PIP coverage, most insurers also include coverage for lost wages, assistance, and (in the case of a death) funeral expenses. Wage benefits are typically limited to 1-year at $200/week. Policies usually provide that wage benefits don't begin until after 2-weeks of missed work. Other portions of PIP may provide for assistance at home. For example, let's say you're laid up at home alone, and you need someone to clean and cook. Your PIP policy may provide benefits to pay for someone to do that for you until you can do it, again, on your own. Now here's a sneaky thing about PIP. If you don't want PIP, your insurer must have you waive the coverage in writing. If they don't, you get it with your policy --- even if you didn't pay for it!

Collision Coverage is much like PD coverage; except it pays you for the damage to your car. It will almost always carry with it a deductible. The lower the deductible on your collision coverage, the higher your premium will be. But if your car is damaged or totalled, regardless of who is at fault for the accident, your Collision coverage will pay for the repairs or pay you the fair market value of your totaled car.

Comprehensive Coverage also carries a deductible with it. This is coverage that applies to protect your vehicle investment when it is damaged by something other than a collision. For example, if someone smashes your window, breaks into your car and steals your stereo; or a tree falls over on top of your car during a storm; Comprehesive coverage takes care of it.

The last major type of coverage is Underinsured Motorist Coverage - generally abbreviated as UM or UIM coverage. This is coverage that pays you if you are hurt in a collision caused by someone else; and that other person either doesn't have insurance, or doesn't have enough.
So those are the primary types of auto insurance coverages. In Parts 2 and 3, I'll discuss suggestions and strategies for the types and amount of coverages you should consider.


Wednesday, July 15, 2009

If You're Hurt - Get Checked Out!

Here's one of the worst kept secrets of personal injury and defense attorneys alike. No early medical treatment = no significant claim. We've heard all the excuses:

  • I didn't have money to pay for it

  • I didn't have insurance to pay for it

  • I hate doctors

  • I hate pills

  • I didn't have the time

  • I thought it would get better on its own

  • My (fill in the blank) told me it wasn't necessary

Understand this: one or more of these may really be true. You may really be hurt. But the bottom line is -- it doesn't matter. If you are in an accident, and you don't seek treatment for many weeks (or worse, many months or more), you are in trouble. I don't mean medically. Because when it comes to your medical care, that's between you and your health care provider. I mean 'legally,' or better said -- 'claim-wise.'

The 'other guy's' insurance company is going to look at your claim and give it short shrift. They're going to assume that: the pain wasn't bad enough to get you to see a doctor; or some other event caused the problem; or more likely, it will reasonably (and probably - correctly) assume that a jury won't buy it. And even your own insurance company -- the one you may be looking for to pay some of your medical expenses under your PIP coverage -- will be extremely concerned. It will probably send you for an IME (an examination by a doctor of its choosing) and hope to get a report back saying that your have no objective problems that are related to the accident. Then it will use that report to deny your PIP claim.

All-in-all, it's a real mess. Defense attorneys know it. Plaintiff attorneys know it. Insurance companies know it. Juries (eventually) know it. The excuses don't fly!!

I can't tell you how many times I've observed the importance of this very basic rule: both in a negative way and a positive way. The negative way is simple. As a defense attorney, I've used this scenario on numerous occasions. Juries and arbitrators don't like seeing months of non-treatment; and the claimant ultimately pays with a low claim result. As a plaintiff's attorney, I've had to counsel my clients about this problem. I've occasionally refused to represent a client under these circumstances - either recognizing that the delay is unexplainable, or because the client doesn't believe me.

But I've also seen situations in which early treatment has proved incredibly helpful to a claim. I had a client, recently, who was in an accident and felt a little sore but didn't want to see a doctor. She relied on excuse # 6 (I thought it would get better on its own.). Fortunately, a friend of hers was a client of mine. About 2 weeks after the accident, the friend encouraged her to call me. I told her to go see her doctor. She insisted that she felt she'd get better -- even though she hadn't improved over that 2 week period. I asked her - tongue in cheek - where she received her medical degree. She went to her doctor.

The doctor noted a typical radiculopathy pattern -- pain, tingling, numbness -- and sent her for an MRI. Two days later she was sent to a neurosurgeon who diagnosed an extruded disc in her neck; and a day after that she was in the hospital undergoing a very significant surgery. Had she waited months before going through this process, the legal outcome might have been very different. Perhaps she would have been in another accident, or a fall. The longer she would have waited, the more difficult it would have been to prove that her spinal injury was related to the accident. But fortunately, having obtained an MRI just 2 weeks after the accident, the 'proof was in the pudding.' Proving her injury was related to the accident was no longer a problem. Her surgery was successful; and once she recovered, we were able to resolve her claim for a significant 6-figure settlement.

If you are in an accident, don't use the typical excuses to avoid medical treatment. If you have symptoms, get them evaluated. It's always better to have a doctor's visit where the result is insignificant, than to avoid the doctor when the result would have been significant -- medically and legally.