Flood advisory issued for most of western Washington

The National Weather Service office in Seattle has issued an urban- and small-stream flood advisory for 14 counties throughout western Washington. Nearly 2 inches of rain has fallen across much of the area in the past 24 hours, with another 1-2 inches expected today.

Affected counties include:

CLALLAM COUNTY
ISLAND COUNTY
JEFFERSON COUNTY
SAN JUAN COUNTY
SKAGIT COUNTY
WHATCOM COUNTY
KING COUNTY
KITSAP COUNTY
LEWIS COUNTY
MASON COUNTY
PIERCE COUNTY
SNOHOMISH COUNTY
THURSTON COUNTY
GRAYS HARBOR COUNTY

Minor flooding is expected in urban areas and small streams into this evening, according to the NWS. The flood advisory has been extended to 6:30 p.m. today.

Restricting Summary Judgment

Are courts beginning to restrict the use of summary judgment?

Justice Brown took the opportunity to comment on summary judgment in a decision encompassing two cases, George Weston Limited v. Domtar Inc and 1318214 Ontario Limited v. Sobeys Capital Inc., 2012 ONSC 5001 (S.C.J.).  These were two cases from the Commerical List in Toronto where counsel sought to schedule summary judgment motions.  In George Weston, the plaintiff sought to schedule a summary judgment motion prior to examinations for discovery.  In 1318214 Ontario, discoveries were mostly complete and when the plaintiff sought to set the matter down for trial, the defendant advised it intended to bring a motion for partial summary judgment to limit the issues for trial.

Justice Brown laments the motion culture in Toronto and what he sees as a reluctance of counsel, especially counsel who have practiced for less than 15 years, to bring cases to trial.  He suggests that instead of bringing summary judgment motions, counsel should take more cases to trial and that courts should facilitate the process by approving innovative ways of proceeding to trial; for example, evidence could be a hybrid of written and viva voce evidence.

It will be interesting to see if other judges share Justice Brown's concerns and if courts will start restricting the use of summary judgment motions.  Defence counsel and insurers will need to carefully assess each case to determine whether the appropriate way is to proceed by way of summary judgment or whether it might be more beneficial to simply proceed to trial. 

Just what you need for Halloween

Tired of handing out candy?  The older kids scoff at stickers and playdough. 

How about zombie insurance?  As Horrance.com points out, car insurance is useless if a zombie has eaten you. 

Market Conduct Examiner position extended to Nov. 13

Please help us spread the word - We're currently hiring for a Market Conduct Examiner. Sound interesting? This person will work under our Chief Market Conduct Examiner or Lead Examiner Analyst, analyzing, reviewing and identifying the market conduct practices of health insurance companies and other regulated entities that could harm consumers.

This job posting is open until Nov. 13, so if you know someone who may be interested and who's up to the challenge, please tell them soon! See the salary, specific duties and other qualifications.

Beware of Things that Go Bump in the Night

It is almost Halloween, and chances are your neighborhood will be full of trick-or-treaters going door-to-door filling up their bags with treats of all kinds. Unfortunately, Halloween also is the night for tricks. One particular trick made it all the way to the West Virginia Supreme Court this year in Richard E. Lemaster vs. GEICO General Insurance Company.

Post by Ross Plyler

It was late on Halloween. Richard Lemaster was driving his car down Highway 81 in Berkeley County, West Virginia. As he passed under a bridge, he heard something go bump. He pulled over and took a look around but saw nothing (and no one) near the overpass bridge. However, when he looked at his car, it was covered with…pumpkin. Apparently, someone had tossed a pumpkin over the side of the overpass. It landed squarely on Lemaster’s roof, denting the area just above the windshield.

The police had no suspects at the time, so Lemaster filed an uninsured motorist claim with his auto insurance company, GEICO. GEICO denied the claim, so Lemaster filed a declaratory judgment action to ask the court to determine if GEICO had uninsured motorist coverage in this strange case. The court granted summary judgment for GEICO, ruling that according to Virginia law (the state where the policy was issued), in order for an injury to arise from a “use” of a vehicle for uninsured motorist claim, there has to be a causal relationship between the injury and a motor vehicle being used as a motor vehicle. The court decided there was no real evidence that a vehicle was used to transport the pumpkin to the scene, and even if there was, using a car as a vehicle to throw pumpkins is not an accepted “use” of a vehicle. The West Virginia Supreme Court affirmed.

Here in South Carolina, we have a similar test for uninsured motorist claims. The injury or damage must arise out of a “use” of a vehicle, which means the injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle and not an act that is too dissociated or remote from the use of an automobile. Tossing pumpkins out the window is probably not foreseeably identifiable with the use of an automobile, so I think our court would come to the same conclusion. However, strange things happen on Halloween. I would argue that it is easy to foresee all kinds of mischief on Halloween…especially having to do with pumpkins.

Is Your Family Safe From Storms?

IS YOUR FAMILY SAFE FROM STORMS?

As an injury lawyer, and a family man who sees tragedies every day, I try to help to prevent injuries, car accidents and even unnecessary insurance claims.  Some of you may find yourself traveling through storm-prone areas, or have beloved relatives and friends who do. You might want to share, or forward this article to them.

If you are indoors, as the storms approach: 

Put your cars in the garage to protect form hail and debris.

Get inside, and account for everyone and keep them close. 

Keep shoes or boots with laces snugly tied on everyone's feet. 

Move to an inside room, bathroom, storm shelter or basement. 

Keep your wallet, cash, credit cards and identification in your pockets.

Have a battery-powered radio, flashlights and charged cell phones with you.

Storms need not level your home to hurt you, many folks are injured by flying glass, boards and debris. Stay away from windows: If it is a minor storm there is nothing to see; if it's bad, you can't see at all.

Be aware that sky lights will often break in a hail storm or from thrown debris. 

Avoid using electrical appliances, bath tubs or showers should your house be struck by lightning.

Unplug computers and nicer electronics to protect from power surges.

If you are outdoors on foot, and taken unaware by a storm:

Cover your head to protect it from hail impacts, and seek inside shelter anywhere you can, even in someone's car.

Trees are not true protection: they are just lighting rods and shed limbs onto you without warning.

If the storm impacts while you are driving:

Admit you are caught, as you cannot outrun it, so just look for a safer place to stop driving.

A highway overpass, the inside of any open garage, a gas station, or even a car wash will do. 

Do not stop closely on the edge of the highway unless you have to, as other drivers may drive into the rear of you trying to follow brake lights.

Do not stop on a bridge or a very low area.

The windshield may not blow entirely out, but side windows often do.

The main idea in the car is to protect your eyes, so if possible, just lay face down in the back seat. 

Cover the eyes of any children in the car with a jacket or even your body.

There is a wealth of storm information, including handy disaster preparedness supply lists that can be accessed through www.ready.gov. 

No one plans to fail, they just fail to plan. 

Arraignment for Spokane man who claimed repo-ed truck was stolen

Andrew James Petrie, 28, was arraigned today in Spokane County Superior Court for claiming that his truck had been stolen when in reality it had been repossessed.

He faces one count of first-degree attempted theft and one count of insurance fraud.

In what state am I most likely to hit a deer?

Each year, State Farm compiles a list of deer-vehicle collisions and creates a list of states in which you're most likely to hit a deer.

West Virginia has topped the list for six years in a row, with other particularly dangerous states being virtually all of the northern Midwestern states and the mid-Atlantic states. South Dakota's No. 2, and Iowa's No. 3.

Washington, it turns out, is one of the lowest-risk states, coming in at No. 43 this year. Your odds of hitting a deer in the Evergreen State are a mere 1 in 477, according to State Farm's estimates.

The company estimates that there are about 10,700 collisons with deer in Washington state each year. (Compare that with, say, Pennsylvania's 115,000.)

Oregon is No. 37 on the list, and Idaho's 33.

Arizona, perhaps not surprisingly, is the stae in which you're least likely to run into a deer. Armadillos, however, were not part of the study.

Here's the full list.

Second Independent Medical Examination - Evidence

What evidence is necessary on a motion to compel the plaintiff to attend a second independent medical examination?

In Nasir v. Kochmanski, 2012 ONSC 4088 (S.C.J.), the plaintiff was a minor who was injured in a motor vehicle accident.  The claim alleged the plaintiff was struck while a pedestrian and sustained a head injury and various psychological impairments.  He had been assessed by a number of medical doctors and psychologists, both treating and arranged by plaintiff`s counsel.  He had been assessed by a paediatric neurologist on behalf of the defendant, although no report had been prepared.  The defendant sought to have the plaintiff assessed by a psychologist.  The proposed assessor wrote a letter to defence counsel outlining the assessment, its length, information she would require from the plaintiff`s parents, and test results from other assessments she required.

Justice Daley permitted the assessment.  The proposed assessment was outside the scope of expertise of the neurologist, according to the psychologist`s letter.  There was no evidence the assessment would delay trial or prejudice the plaintiff.  Since the plaintiff was very young, his evidence would be of limited evidentiary value, and the most probative and reliable evidence would have to come from experts.  Trial fairness favoured the second examination.

It should be noted that the evidence in support of the motion appears to come from a letter from the proposed assessor.  Justice Daley stated that it would have been preferable to have an affidavit or report from the neurologist outlining the need for a further examination, but accepted that there was enough evidence to support the motion.  There is some inconsistency in the case law as to the form of evidence needed on a motion for a further examination, and counsel should carefully consider whether it would be beneficial to have affidavit evidence. 

  

Kreidler fines insurer $500,000

Washington state Insurance Commissioner Mike Kreidler is fining Ohio-based BCS Insurance Company $500,000 for issuing hundreds of thousands of policies using unapproved rates and policy language.


“A fair insurance market depends on companies playing by the rules,” said Kreidler. “When an insurer files rates and policy language with us, that’s what we expect them to use.”

BCS Insurance has agreed to pay the fine. An additional $250,000 fine is suspended, provided the company commits no similar violations for two years. The company has also agreed to a two-year plan, including internal audits, to make sure the company is in compliance with Washington state law.

An investigation by Kreidler’s office found that between 2007 and 2009, BCS issued over 500,000 travel insurance policies that were different from the policy language filed with the state. Rates for identical benefits were inconsistent, depending on who the customer was.

New Cavalcade of Risk is up

For a roundup of risk-related blog posts from around the web, take a look here.  Special thanks to My Personal Finance Journey for including my post on insurance as a kind of tax as one of the top three posts for this Cavalcade.

How much of my driving record can an insurer use?

We get this question all the time.

The answer's found in a section of state law called WAC 284-30-500(3). (WAC stands for Washington Administrative Code.) Here's the key section, with some highlighting we added:

(3) It is an unfair practice for any insurer to consider traffic violations or accidents which occurred more than three years in the past, with respect to the acceptance, rejection, cancellation or nonrenewal of any insured under a private passenger automobile insurance policy, unless, because of the individual's violations, accidents or driving record during the three years immediately past, the earlier violations or accidents are significantly relevant to the individual's qualifications for insurance.

So insurers generally cannot use the older data as a basis to reject/cancel/non-renew you, but there is no prohibition against using the older data to assess risk and rate -- meaning set the cost of -- your auto policy.

Even if you have a problem driving record, it's always a good idea to shop around for alternative rates, since insurers don't all charge the same rate for the same level of coverage.

Great article on certificates of insurance

Virginia Business has an excellent article by Collin Hite on the uselessness of certificates of insurance.  I wholeheartedly agree with his analysis. 

The article discusses a new law in Virginia that attempts to prevent certificates of insurance from containing misleading language about what rights the certificate gives a certificate-holder.  While that may be occasionally helpful, in my view the real problem with certificates of insurance is that they exist at all.  As they cannot be used as proof of coverage, why issue them?  The safer practice would be for an entity seeking proof that it is an additional insured on someone else's policy to require that the primary insured provide a copy of the coverage selection page.  If the coverage selection page does not list additional insureds by name, that part of the policy that does name or define additional insureds should be provided.  Although that won't prevent the problem of a policy being canceled by the primary insured without notice to the additional insured, it would be a step in the right direction.

DAYCARE INJURIES

DAYCARE RULES TO PREVENT INJURIES

A recent case of a severe injury to a child at a daycare center I am handling underscores the importance of following the rules and regulations of Tennessee that are designed to prevent serious daycare injuries to children. 

The law states that, “Children must have adult supervision at all times.”

The supervision required at a preschool or daycare center is very specific:

“Children six weeks of age through two (2) years of age shall be within sight and sound of an adult at all times.” 

It requires that there be an adult/child ratio of 1:4 in cases of caring for infants 6 weeks to 15 months, and 1:6 for toddlers 12 months to 30 months. The ratio for 2 year olds is 1:7 and it increases to 1:9 for three year olds.

“Children three (3) years through five (5) years of age shall be safely protected by an adult in close proximity and not distracted by other tasks.”

“Children six (6) years through nine (9) years of age shall be protected by an adult who adjusts restrictions appropriately for different ages and abilities.”

“When infants are cared for in a center with older children, they shall not be grouped with children three years of age and over, and a separate area shall be provided for them.”

It has been my experience that many daycare owners are wonderful, caring people who love nurturing children. However, we parents know it only takes an instant for a child to be hurt severely in a daycare center. 

Proper supervision is the very best solution to ensure safety of children in a daycare center.

On weeks like Spring Break or Fall Break, the chance of injuries intensifies as school age kids, who are out of class, are often dropped off at their little brother or sister’s daycare center. 

No one cares for a child like a parent can, but you can help make sure your daycare center is up to code with a few questions. “How many children are you expecting today?”  “Which helpers are here today?”

Playground equipment is another problem, as it quickly can fall into disrepair.  Developmental appropriate playground equipment is important, as there should be a toddler swings for the younger children, as they can easily topple out of typical sling type swings.

Here are some of the equipment rules:

“All indoor and outdoor equipment shall be well made and safe. There shall be no dangerous angles, no sharp edges, splinters, nails sticking out, no open S-hooks or pinch points within children’s reach. Damaged equipment shall be repaired or removed from the room or playground immediately. Equipment shall be kept clean by washing frequently with soap and water. There shall be developmentally-appropriate equipment and furnishings for each age group in attendance. Individual lockers, separate hooks and shelves or other containers, placed at children’s reaching level, shall be provided for the belongings of each child, infant - preschool. In infant/toddler rooms, equipment and space shall be provided for climbing, crawling, and pulling without the restraint of playpens or cribs.”

Daycare injuries like fractures, choking, burns, auto accidents and being left in a hot bus or van can be prevented.

If these tragedies occur, seek the advice of an experienced daycare injury attorney.

Catastrophic Impairment: Aviva v. Pastore

The Court of Appeal has released an important decision relating to catastrophic impairment:

Aviva Canada Inc. v. Pastore, 2012 ONCA 642 (C.A.)

The insured was injured in a 2002 motor vehicle accident as a pedestrian and sustained an ankle injury. She alleged her gait had been altered and was diagnosed with a pain disorder.  A DAC found her to be catastrophically impaired in 2005 due to a marked mental or behavioural impairment under s. 2(1.1)(g) of the SABS.  An assessment under s. 2(1.1)(g) is carried out with reference to the AMA Guides, which provide for an assessment of function in four categories:

(1)              Activities of daily living (ADL);

(2)              Social functioning;

(3)              Concentration, persistence and pace; and

(4)              Deterioration or decompensation in work or work-like settings.

Pastore was diagnosed with a number of psychological disorders and the DAC concluded that she had a class 4 marked impairment in activities of daily living.  The DAC concluded she was catastrophically impaired on the basis of the one class 4 impairment.  The insurer did not agree with the assessment and the matter proceeded to mediation then arbitration.

At arbitration, the arbitrator agreed with the DAC assessors and held that one marked impairment was enough to comply with the Guides approach to impairment.  In addition, it was appropriate to consider physical pain in assessing mental disorder, as it was not possible to factor out all physically based pain since it was intertwined with mentally based pain. The Director's Delegate upheld the decision, but the Divisional Court overturned the arbitrator.

The Court of Appeal allowed the appeal and reinstated the arbitrator`s decision.  The conclusion that only one marked impairment is sufficient to meet the definition of catastrophic impairment was a reasonable one. In addition, it was not an error for the DAC assessors to consider both physical and mental pain.

Pastore appears to have lowered the bar for catastrophic impairment based on a mental disorder and more claimants may be able to fit themselves into a catastrophic designation than prior to this decision.

Representing an insurance company does not make you a bad person

In the Massachusetts Senate race between Scott Brown and Elizabeth Warren, Brown has attacked Warren for representing Travelers Insurance in asbestos litigation.  Warren has responded with ads in which family-members of people who died from asbestos-related illnesses defend her, asserting that she fought to increase and protect settlement money available to the victims and their families.

What if that wasn't Warren's role?  What if she had been hired to simply defend Travelers from asbestos claims, to argue that the claims were excluded by the policies,  or that the insured was not liable?  Would that mean she is in the pocket of corporations and therefore should not be elected as a Democrat?

Without going into a Democrat/Republican/all politicians are sellouts tirade, no.  I spend the first six years of my legal career as an insurance defense attorney, and I still represent insurers both directly and indirectly through subcontract work.  There have been times when, given my personal views, I felt somewhat uncomfortable with the cases I was given.  A low point came when I represented as insurance defense counsel a used car dealer that was being sued for allegedly charging customers illegal fees.   I've represented insured defendants who discovery showed were clearly liable. 

In all of my cases, no matter which side I'm on, I zealously represent my clients.  Sometimes zealous representation means advising the insurer to settle.  Sometimes it means advising the insurer not to settle even though liability is clear, because the plaintiff is asking too much in damages. 

There are plaintiffs attorneys who are incompetent and don't give their clients good advice about a case, and there are insurance defense attorneys who are incompetent and don't give their clients good advice about a case.  In my experience, those attorneys are relatively rare.  Competent representation -- an ability to analyze the law, the facts, and the risks -- on both sides leads to fair outcomes. 

I don't know enough about Warren's role in the asbestos litigation to judge it.  But I do know that the mere fact that she represented an insurer in asbestos litigation does not, in and of itself, tell us anything about her character or her worthiness to hold office. 

Packaging Health Plan Fee Details for a Post-Election Launch

Self-insured employers have been waking up in recent weeks and months to the reality that they will soon be hit with new fees to finance a transitional reinsurance program provided for the in the Affordable Care Act (ACA).  But they are likely going to have to wait on the details until after the November elections.

As a quick refresher, the fees will be earmarked to capitalize reinsurance facilities in each state that serve as financial backstops for health insurance companies which offer individual coverage plans through public health insurance exchanges slated to come on-line in 2014.  Health insurance companies will also be subject to this fee.

What has caused some confusion is that the statute and a pre-curser rule finalized earlier this year references that third party administratorson behalf of self-insured plans will be responsible for paying the fee.   In private meetings over the summer, regulators clarified that it was not the intent that TPAs be financially liable for these fee, but rather they will be expected to assist in the collection of these fees from their clients.  Those details, along with the specific fee amounts, are still under wraps.

This blog has learned that an increasing number of large self-insured employers have been complaining directly to senior White House officials that the fee is fundamentally unfair because it helps to support the profitability health insurance companies, with no direct benefit for employers.  Responses have ranged from “we hear you but there is nothing we can do” to “there should be no complaining now because you (the employer community) signed off on this ACA provision during the legislative process.”

The former response is expected, but the latter response deserves some fact checking.

According to a source directly involved with drafting this section of the ACA, there is an interesting back story that is not widely known.  When legislative language was being developed, Democratic drafters did not understand the difference between independent TPAs with insurance company owned ASOs and did not understand that ASOs are typically separate business entities from their insurance company parents.

The reason why this is important is because ACA legislative drafters recognized that it did not make sense to impose fees on self-insured plans to subsidize insurance companies but they figured by referencing TPAs they would exclusively tap the fully-insured marketplace on the assumption that all TPAs were owned by insurance companies.

Only later in the legislative drafting process did they come to understand that many self-insured employers had no insurance company connection.  But by that time there was no turning back and there was no alternative to collecting the necessary revenue – all self-insured employers were going to have to pay.  No wonder that that the regulators have been slow with details on how this is all going to work.

So this brings back to the timing of when these details will be published.  Clearly if the Administration thought that employer community was going to be happy with the new rules, they would be released prior to Election Day.  But the best intel suggests that the proposed are done and are sitting right now at the Office of Management & Budget (OMB) awaiting a green light for release, likely shortly after election day.

The one positive detail is that the rules will be coming out in proposed form, so there will be an opportunity for formal stakeholder input -- just another thing to look forward to as we enter the holiday season.

Michigan Health Care Claims Tax May Just Be The Opening Bid

This blog has previously reported about the one percent health care claims tax that the state of Michigan has imposed on all payers, including self-insured group health plans.  We have also commented on the refusal of most within the employer community to support a legal challenge to the law, which should be preempted by the Employee Retirement Income Security Act (ERISA).

While one prominent Michigan employer has privately been a big financial supporter of this self-insurance legal defense initiative, the state’s largest employer organizations, as well as at least one major national association focused on ERISA preemption issues have been on the sidelines.

Now, it’s probably unrealistic to expect that the average self-insured employer will take the time to think about the longer term implications of ERISA preemption erosions.  Significant as these implications are, those employers are more concerned about the immediate financial implications.

 Fair enough.  Let’s talk about this shorter term perspective. 

 We have just learned from a very reliable source that the revenue collected so far this from health claims tax is much lower than projected -- so much lower, in fact, that the state Legislature will likely consider a proposal to raise it early next year.

 For employers who ran the numbers and determined that they could absorb a one percent tax, they should get ready to do a new set of calculations, perhaps on a yearly basis going forward, should a federal appeals court not strike down the law.  At some point it would seem that this health care tax could become an important factor as employers consider whether self-insurance is as cost effective as it otherwise would be,

 And in case you think this issue is contained to Michigan, think again.  Other cash-strapped states are watching how things play out in Michigan and at least some are likely to follow-suit if they believe such action will go unchallenged.

 When a camel gets its nose under the tent the occupants should not be surprised that the damage often cannot be contained.  For self-insured employers with workers in Michigan, they may soon learn this important lesson.

 

 

 

 

 

Stop-Loss Regulation and the Coming Zombie Apocalypse

Key regulatory officials made some interesting comments about their interest in self-insured health plans utilizing stop-loss insurance at an American Bar Association event last week in Washington, DC

 Phyllis Borzi, assistant secretary at the U.S. Department of Labor, said her agency is working on two ACA-required studies, one on wellness that is due in 2014 and an annual report to Congress on self-insured plans.

 “To try and help get information on self-insured plans, a couple of things have happened. Probably most recently what we asked for was we put out a tri-agency request for information (RFI),” Borzi said.

 George Bostick, benefits tax counsel at the U.S Treasury Department, said the RFI “produced a number of paranoid responses,” but Borzi then assured the audience that there were no ulterior motives to the RFI.

 “It is what it is. We don't have enough information, we think.. It's not like we have some hidden agenda, pro- or anti-stop-loss; we just want to find out what's going on out there,” Borzi said.

 Another panelist, Amy Turner, senior adviser and special projects manager in EBSA's Office of Health Plan Standards and Compliance Assistance, echoed Ms. Borzi's comments about the departments needing more information on stop-loss insurance and wanted feedback from a “broad group of stakeholders.”

 The departments are sifting through the comment letters responding to the RFI, but Turner said not to expect any stop-loss guidance in the near future.

 “To the extent that some people maybe saw the RFI and thought, ‘Oh my goodness! Is something like the zombie apocalypse going to happen?' I think we're just working on the comment letters. I wouldn't expect any major guidance from the departments very quickly on this,” Turner said.

 This blog will give Ms. Turner the benefit of the doubt that a zombie apocalypse is probably not in the offing regardless of any further regulatory action that may be taken.

 That said, the regulators will have to forgive the “paranoia” expressed by self-insurance industry stakeholders.  After all, the current administration has proven to be very adept at sidestepping normal legislative procedures and inclined to give the green light to regulatory agencies to test the bounds of statutory authority when political needs arise.

 Speaking of political needs, it’s worth reminding everyone of how the regulators explained the reason for the RFI.  The following is an excerpt from the RFI introduction:

 It has been suggested that some small employers with healthier employees may self-insure and purchase stop-loss insurance with relatively low attachment points to avoid being subject to certain consumer protection requirements while exposing themselves to little risk.  This practice, if widespread, could worsen the risk pool and increase premiums in the fully-insured small group market, including the in the Small Business Health Options Program (SHOP) exchanges that begin in the 2014.

 If, in fact, the regulars reach these same conclusions, is it reasonable to believe they will simply sit on their hands?  We’ll be sure to keep an eye out for zombies as these developments continue to play out just in case.

Another side to insurance coverage litigation

Over at FMG Law's BlogLine, Seth Kirby has posted an interesting article on the marketing risk to insurers of insurance coverage litigation.  I agree with his points.  On the one hand, insurers have an absolute right -- perhaps even a duty as public corporations -- to determine both liability and damages before settling, even in cases that initially seem obvious.   Bad faith comes in when the insurer takes an unreasonable amount of time to do so, or when it continues to deny a claim or it fails to make a reasonable settlement offer after it has determined that its insured is liable and the claimant suffered damages.

Kirby points out that in this age of blogs and social media, an insurer runs a risk of appearing to act in bad faith even when it is reasonably investigating or litigating a claim.  The case he discusses is that of a woman who was killed in a car accident.  Her family sought coverage under the uninsured motorist coverage of her policy and the insurer litigated rather than paying immediately.  This is a case I have heard of before -- thanks to publicity the case has gained on the internet.  I haven't seen enough to convince me one way or another about whether the insurer is acting in bad faith in its investigation and litigation of the claim.  But, as Kirby states in the article, insurers now need to be aware of how easy it is to paint them as a bad actor in such a situation. 

Here come the rains

After an unusually dry early fall, western Washington's long rainy season begins in earnest this weekend, when the first of a series of wet weather systems moves into the Pacific Northwest.

Weather Underground reports that:

A front bringing heavier rain will arrive late Saturday... with significant precipitation continuing Sunday and Monday.

Rainfall amounts during the period from Saturday afternoon through Monday evening will likely be around 3 to 8 inches in the mountains... with the heaviest precipitation over the Olympics and north Cascades. The snow level will be mainly around 10000 feet.

Rainfall over the western Washington lowlands will probably range from 2 to 4 inches along the coast and 1 to 2 inches over the interior lowlands.

Because of the long dry spell, forecasters say, flooding is unlikely. But rivers are expected to rise sharply.

Drivers should also be extra cautious. During dry weather, oil that has dripped off cars and trucks onto roadways doesn't have a chance to be washed away. The rains will spread that oil, making roads extra-slick for the first couple days of rain.

Guilty plea in insurance fraud case over "stolen" bicycles

A Pierce County man pleaded guilty today to two counts of forgery after falsely claiming that two bicycles worth $17,000 were stolen from his garage.

John L. Southerly, of Fox Island, was sentenced in Pierce County Superior Court to 45 days of electronic home monitoring and $800 in fees.

In May 2011, Southerly told his insurance company that two Specialized Epic bicycles and accessories had been stolen. He filed a police report with a Pierce County sheriff's deputy, saying that he'd left his garage door open and discovered that the two bikes, valued at $17,562, were gone.

Southerly told his insurer, Travelers Indemnity Co., that he'd bought both bikes from an Arizona company. When Travelers asked for copies of his receipts, Southerly sent an email that was purportedly from the bike company. The bike company email came from a Gmail account. Attached was an invoice for each bike. Southerly later also filed a sworn statement of proof of loss for the bikes.

Travelers sent an investigator to talk to the bike shop owner and try to verify that the invoices were authentic. No, the owner said, pointing out discrepancies.

Then, last June, Travelers received an email from a different Gmail address.

"This is Detective Harris," it began. "I work out of the Tacoma office. I am trying to follow up on a case that involves Mr. Southerly..."

The email didn't contain contact information for this "Detective Harris," or even specify which law enforcement agency the detective supposedly worked for.

Travelers denied Southerly's claim and turned the case over to the state insurance commissioner's Special Investigations Unit. It quickly determined that there was no "Detective Harris" working for the Pierce County Sheriff's Office, the Tacoma Police Department or the Lakewood Police Department.

With search warrants, the Special Investigations Unit determined that both Gmail accounts listed Southerly's real email as a secondary contact and were sent from Southerly's IP address.

Southerly, who did not show up for a scheduled court appearance earlier this year, was arrested in August while leaving a gym after a workout.

DON’T GET SUED OVER HALLOWEEN

DON’T GET SUED OVER HALLOWEEN

The time for “Trick or Treat” is nearing.  It is a fun time of year, when we hear the knocking of little goblins and princesses.

But, the knock on the door that no one wants is the sheriff, serving you with a civil summons regarding someone being injured on your property.  Since I have handled many premises liability injury claims, I want to make sure you never have to have a child hurt at your home.

These simple steps can help make sure your home is safe and assure your little visitors have a great time.

1.             Lighting:   Proper lighting shows hazards and indicates preferred walkways. It may be spookier to have it darkened, but you are better off with all available lights turned on.  Pay special attention to your side yards that lead to your neighbors’ homes.

2.            Pathways:  Make sure that you have clear pathways to your door. It is important to recognize that kids will not return to the street after every trick or treat.  Instead, they will likely walk to the neighbor’s home through your side yard.

3.            Yards:  Holes in the yard are invisible at night and should be filled in and leveled off.

4.            Steps:   Those older steps have that loose railing are a trap.  Picture a disabled grandmother moving on your property and you night notice hazards that you missed at first.

5.             Cords:  Electrical cords, even orange ones, are hard to see at night. Try not to have them in positions to have to be crossed.

6.            Saplings:   If you have recently put in young tree, the strings that hold it up are known trip hazards.  If they must be used, tie yellow caution tape on each string in multiple locations. This handy tape is available at local hardware and home improvement stores.

7.            Obstacles:    Spider webs, tunnels and so forth are really fun, but dangerous. Avoid anything that would trip a guest. Likewise, any string that hits an adult at neck level is a hazard.

You will probably never have a claim from an injury at your home, but if you do, everything you have done to assure safety will matter.  Have a happy and safe holiday.

SPEED CAUSES ACCIDENTS

SPEED AND HIGHWAY SAFETY

As an injury lawyer that sees the results of horrific accidents every day, I understand the connection between speed and safety.

At just 60 miles per hour, you are traveling a surprising 88 feet per second! That is why many who cause accidents testify in my depositions, “I just never saw him!” That can be truthful.  They looked, but he was not there yet when they looked. 

Speed limits are back in the news again. Texas will have a speed limit of 85 mph for a rural toll highway between Austin and San Antonio.

The famously unpopular change to 55 mph (the “double nickel”) happened way back in 1973.  Up until then, most speedometers had a red line at 70 mph, if they had one at all.

If you have had a car with an 85 mph speedometer, you can thank the government.  In 1979, the National Highway Traffic Safety Administration (NHTSA) required speedometers to have special emphasis on the number 55 and a maximum speed of 85 mph. That has since gone by the wayside, much like the 55 mph speed limit.

Are there any states with No speed limits? There were.  Montana had a non-numeric "reasonable and prudent" speed limit during the daytime on most rural roads. The phrase "reasonable and prudent" is found in the language of most state speed laws. This allows prosecution under non-ideal conditions such as rain or snow when the speed limit would be imprudently fast.

In 1996, a Montana patrolman gave a speeding ticket to a man doing 85 mph and he was convicted. On appeal at the Montana Supreme Court, the Court reversed the conviction; it held that a law requiring drivers to drive at a non-numerical "reasonable and proper" speed "is so vague that it violates the Due Process Clause ... of the Montana Constitution". In 1999, as a result of that decision, the Montana Legislature established a speed limit of 75 mph.

Over in Germany, the autobahn has sections without any speed limit.  Actually, the accident rate is consistently lower than other super highway systems, including the United States Interstates. 

But on the autobahn in Germany, it is actually illegal to run out of gas. 

Thus, we fine you for going too fast, and the Germans fine you for going too slow. Drive safely!

LAWYERS HELPING PEOPLE

LAWYERS ALMOST HIT BOTTOM

In my over 16 years as an injury lawyer, I have heard every lawyer joke there is at least 50 times.  Some of these are funny, but often the pointed humor is found wrapped in a grain of truth.

Every so often, the Gallup Poll people seek peoples’ opinion on the most respected professions.  Not surprisingly, the overwhelming majority of folks admire: Nurses (81%); Military Officers (73%); Pharmacists (71%); Teachers (67%) and Doctors (66%).

Who are the least respected? Washington Lobbyists, Car Salesmen and Congressmen round out the lowest rung of the respect ladder.  But we don’t tell “lobbyist jokes” much, do we?  Lawyers are certainly close to the bottom. Only 17% hold attorneys in high esteem.  While 47% put them in the middle at “Average, a whopping 35% place members of the bar squarely at “low or very low.”

Why are lawyers not more respected?

Could it be the ads? I don’t do TV ads, but the high-volume injury law firms do. Some are downright silly, and almost all are annoying.  

Is it any wonder the word “greedy” seems to go naturally in front of the words “trial lawyers.” We hear all about the “hot coffee case” and we never hear about the facts of many tragic cases that do so much good.

For example, have heard this story?  A three-year old little girl leaned out of the passenger’s side window on a Ford pick up truck, and accidentally hit the “rocker” style switch, causing the strong power window to close, and killing her, before the parents could save her.

Manufacturers were well aware of the risks of rocker switches inadvertently closing if a child leaned on one (in 2004, seven children died in the span of three months) and even installed safer “pull-up” switches in the cars they offered to foreign markets. But it took lawyers and litigation for manufacturers to install safer switches herein America.

Other safety improvements include life-saving repairs to vehicle gas tanks, seat belts, side impact design, roof strength, tires, electronic stability control, door latches, air bags, power windows and seats.  All brought to you by your friendly, neighborhood trial lawyer.