South Carolina Personal Injury Law Blog

Automobile Insurance (Third Party Coverage)

A few days ago, I posted about first party insurance coverage.  Today, I am pleased to present the following article from Jonathan G. Stein, publisher of the California Personal Injury and Insurance Blog, about about third party insurance coverage:

A few days ago, I posted about automobile insurance. I gave just a brief introduction to first party coverages, in other words, coverages where your insurance company pays you. We discussed the promise that you buy in first party coverages.

Today, its third party coverages - coverages where your insurance company pays someone else. This is generally called liability coverage. If you are buying liability coverage, you are buying a promise from the insurance company that they will pay for damage you cause as a result of using your car. Want some examples? You hit a parked car. The insurance company will pay for damage to the parked car. You rear end a car while driving. Your insurance company will pay for damage to the parked car, as well as any injuries the people in the car sustained.

This is simple, right? Well, it could be if California would adopt a single limit liability policy. That argument will be saved for another day. In California, when you buy liability insurance, they will throw out numbers like 15/30, 25/50, 250/500. What does that mean?

The first number (15, 25,250) is the most, in thousands, that the insurance company will pay to one person injured in an accident. The second number (30,50,500) is the most, in thousands, the insurance company will pay for everyone injured in an accident. So, a 15/30 policy? The insurance company will pay no more than $15,000 per person  with a maximum of $30,000 per accident. This is the minimum in California.

Then they give you one more number. It could be 5, 25, 50, 100. This is the most, in thousands, that they will pay in property damage. So 25 means they will pay up to $25,000 for all damage you cause to someone else's property.

Whats right for you? That is almost impossible to determine. (See my prior post on how every person has different requirements.) However, in future posts, we will discuss some generalties on what may be right in different situations.

Source:  "Automobile Liability Insurance: A Primer" by Jonathan G. Stein, published at his California Personal Injury and Insurance Blog.

Wal-Mart Settles Case Involving Overtime Pay

After turning itself in to the U.S. Labor Department, Wal-Mart Stores has agreed to pay over $33 million in back wages to 87,000 employees nationwide who were shorted overtime pay over the past five years.  The highest award to an individual employee was reported to be about $39,000.

This is not Wal-Mart's first legal entanglement over these types of issues.  In fact, the Labor Commissioner of California currently has a suit pending against Wal-Mart for the share of overtime shortfalls in that state which has not yet been resolved.

Also, Wal-Mart workers in Pennsylvania won a $78.5 million judgment last October for working off the clock and through rest breaks. Wal-Mart denied wrongdoing and is appealing the jury award.  However, one of Wal-Mart's most vociferous critics, WakeUpWalMart.com, said the overtime settlement was a sweetheart deal that favored the retailer rather than its workers.

Source:  "Wal-Mart Settles Case Involving Overtime Pay" by Marcus Kabel, published at Yahoo Finance News.

 

Types of Damages

There are four basic types of damages:

1.  Compensatory Damages:

Compensatory damages are derived from the word "compensate," meaning "to make up for" or "to make whole". Generally, these damages can be broken up into two sub-categories:  actual damages and general damages.

Actual damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained. Actual damages typically include:

• Medical and hospitalization bills incurred to treat your injuries;
• Wages lost due to work missed while you recuperate;
• Costs of household or nursing help during recovery, including costs of wheelchair or crutches required;
• Cost of rental car or substitute transportation; and/or
• Cost to replace or repair damaged property.

As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can't be precisely documented in dollars spent, including:

• Pain and suffering endured due to injuries and any subsequent mental anguish;
• Disfigurement resulting from injuries;
• Value of medical expenses you are likely to incur in the future;
• Value of wages you are likely to lose in the future;
• Permanency of injury and resulting pain and suffering;
• Loss of consortium (benefits of a relationship); and/or
• Loss of opportunity.

2.  Punitive Damages:

In addition to compensatory damages, punitive damages may be awarded in certain cases.  Punitive damages are not based on actual injuries sustained.  Instead, they are a way to punish the defendant for intentional conduct or gross negligence -- behavior that is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future.

3.  Nominal Damages:

Nominal damages are minimal damage awards acknowledging that the plaintiff was legally wronged, while at the same time recognizing a lack of evidence establishing that the plaintiff suffered actual damages.  Nominal damages are normally very small awards, and are allowed only in cases where actual injury is not required to be shown, such as with intentional torts.

4.  Attorney's Fees and Court Costs:

In addition to damages, a successful plaintiff is also able to recover court costs incurred.  S.C. Code § 15-37-10. Court costs include the cost of filing fees, process server fees, deposition transcripts, court transcriptions, and translators.  Attorneys' fees are generally not included as part of a successful plaintiff's recovery, though there are limited circumstances where procedural rules allow for the successful plaintiff to recover attorney's fees and expert witness fees.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Exposure to Freeway Impairs Lung Development in Children

A study published last week in online issue of  The Lancet found that children growing up alongside freeways risk having their lung development impaired, which can increase the likelihood of serious respiratory diseases later in life. 

Previous studies have shown that children living next to highways are more likely to develop respiratory problems, such as asthma, but this is the first study to show that long exposure to car and truck exhaust actually affects the growth of the lungs and their capacity.

Researchers in this new study followed 3,677 children for eight years, tracking their lung development. The children were 10 at the start of the study, and they came from 12 southern California communities, each with different air quality.

You can read more about this study by clicking HERE, or you can learn more about outdoor air pollution from the American Academy of Family Physicians by clicking HERE.

Source: "Living Near Freeways Hurts Kids' Lungs" published at Forbes.com.

The True Facts About the "McDonald's Hot Coffee Case"

One of the most distasteful "urban legends" is that about Stella Liebeck and the injuries she sustained in the "McDonald's Hot Coffee Case."  The "facts" of this case have been so distorted from the truth, that it is worth reading the following article by David Brannen of the Injury Law Blog to help separate fact from fiction:

As my friends will tell you, nothing gets my blood pressure rising more than when someone cites "that McDonald's Hot Coffee Case", as a reason for why personal injury lawyers in particular, and the court system in general, are out of control.

The actual case is Liebeck v. McDonalds, Dist. Ct. New Mexico (Aug. 18, 1994). The media characterized it as "Woman gets millions after burning herself with McDonald's hot coffee". The story got international attention. It was even mocked by Sienfeld, which was the most watched TV comedy of the time. Remember the Episode? Kramer tried to sue Starbucks after spilling coffee on himself. He suffered a red mark on his leg. Jackie Chiles took on his case. In the end, Kramer's lawsuit fell apart when his burn fully healed after he put balm on his leg.  Most people think the actual case was similar to this - it was not.

The real case involved a 79 year-old grandmother who bought a coffee at a McDonald's drive thru in Albequreue New Mexico. She was a passenger in a car driven by her grandson. She placed the coffee between her legs while trying to remove the lid. The coffee spilled, causing her to suffer 3rd degree burns to her genitals, groin, inner thighs and legs. Ms. Liebeck was hospitalized for eight days and underwent multiple surgeries, including skin grafts, to treat her injuries. It took her 2 years to recover from her injuries.

The jury who heard the case awarded Ms. Liebeck $200,000 in compensatory damages, but reduced to $160,000 to account for the fact it found her 20% responsible for her injuries. The jury then awarded Ms. Liebeck $2.7 million in punitive damages to punish McDonald's for its reprehensible behavour.

Punitive damages are awarded to punish a company for bad behaviour. The purpose is to denounce the bad behavour and to discourage the company, or others, form engaging in similar conduct in the future. To be effective, punitive damages must be proportional to the wealth of the wrongdoer - otherwise, punitive damages will not serve as a deterrent. They will simply become a cost of doing business. McDonald's was a multi-billion dollar organization, therefore, the jury decided that punitive damages of $2.7 million were necessary to make McDonald's change its behaviour.

Several days later the judge lowered the punitive damages from $2.7 million to $480,000. Both sides appealed. However, they reached a confidential settlement before the appeal could be heard.

Why was the jury so angry at McDonalds? Following are some of testimony that came out during the trial:

• Ms. Liebeck initially offered to settle her case for $20,000 (cost of her medical bills) but McDonalds offered her only $800;
• McDonald's admitted to knowing about the risk of serious burns for about 10 years. From 1982-92 McDonalds had received more than 700 complaints of people, including children and infants, suffering serious burns from its coffee;
• McDonald required its francises to serve coffee at 80-88 degrees celcius, which its own expert said was a burn hazzard;
• McDonald's own quality assurance manager testified that a burn hazard exists with any food substance served at 140 degrees or above and that McDonald's coffee was not fit for consumption because it would burn the mouth and throat;
• The quality assurance manager further testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that while burns would occur, McDonald's had no intention of reducing the "holding temperature" of its coffee;
• Plaintiff's expert, a scholar in thermodynamics as applied to human skin burns, testified that liquids at 180 degrees will cause a full thickness burn to human skin in two to seven seconds;
• Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn;
• McDonald's also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third-degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard.

It is difficult to get reliable information about the Liebeck Case. The above facts are cut and pasted from a fact sheet provided by the Association of Trial Lawyers of America (of which I am a member) - you can access ATLA's fact sheet by clicking here.  There is also a good summary of the case on the Online Encycolpedia Wikipedia, which you can access by clicking here.  I tried, without success, to speak with the actual lawyer who represented Ms. Liebeck. I believe that he signed a confidentiality agreement that prevents him from speaking about the case.

Source:  "The McDonald's Hot Coffee Case - Separating Fact from Fiction" by David Brannen, published at his Injury Law Blog.

Overview of Damages in Personal Injury Cases

The issue of damages is the most significant issue to most people involved in a personal injury claim.  When a judge or jury finds the defendant liable for wrongful conduct in a personal injury case, the issue then becomes what types of damages are due to the plaintiff, and in what amount.

As you know, if you suffer a personal injury you'll likely require medical attention and may need rehabilitation, all of which costs substantial sums of money. You may lose income (and/or have to use up "sick time") because of the injury, and you may continue to lose income while treatment and recovery takes place. 

You may have also sustained property damage to your car and other property. Since you can't drive your vehicle while it is being repaired, you may have to rent one, and car repairs and rentals can cost money. You may also lose the ability to perform various activities of normal daily living, for a while or permanently. You may also endure significant pain and suffering, which may be ongoing as well.

The law permits you to seek recovery after an accident to "make you whole again."  The central concept is that you should be compensated in a manner that, as best as the law can arrange, places you back in the same position as you were before the accident. In most personal injury actions the plaintiff must have been injured in some way to be entitled to damages. For example, in negligence cases, you must prove that you suffered injury (some type of physical, emotional or monetary harm) for the defendant to be required to pay compensation to you.

However, with some intentional torts (such as battery, assault or trespass) we may only have to show that the defendant engaged in the unauthorized conduct, without proving that you suffered actual physical harm, in order to recover damages (though damages in these situations are often nominal absent serious injury).

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Supreme Court Hears Case Involving Credit Report Notices by Insurers

Geico Corp. and Safeco Insurance appealed a decision ordering the insurers to notify most of their customers that their high rates are partially based on their credit scores. Initially, consumers sued the companies for using a less stringent policy that required them to notify fewer customers. The United States Supreme Court will determine if the companies willfully violated the Fair Credit Reporting Act that protects consumers from flaws in the system and improves the reliability of reports. 

Source:  "Defending A Policy" by Pete Yost, published at the Hartford Courant.

Toxic Torts

A toxic tort the legal term for the harm that results from wrongful exposure of a harmful chemical or biological substance through ingestion, inhalation, skin contact, or skin absorption.  Examples of toxic tort litigation include, but are not limited to, cases concerning lead paint (causes brain damage, especially in children); asbestos (causes lung cancer and restrictive lung disease); pesticides (causes birth injuries); toxic molds (causes various symptoms); electro-magnetic fields from utility wires or major appliances (suspected to cause cancer); and toxic landfill/spill waste (causes leukemia and other syndromes).

Toxic substances are regulated under the Toxic Substances Control Act (TSCA). The TSCA was enacted in 1976 to give the Environmental Protection Agency the ability to track the 75,000 industrial chemicals currently produced or imported into the United States.  The EPA repeatedly screens these chemicals and can require reporting or testing of those that may pose an environmental or human-health hazard.  The EPA can ban the manufacture and import of those chemicals that pose an unreasonable risk.

Despite government efforts to protect your health, millions of people at home, at work, and during their leisure time are being exposed to and injured by toxic substances every day.  Due to the nature of toxic substance accidents and long latency periods, many cases are often not brought until many years after victims discover they were exposed to the toxins. Exposure to toxic substances is particularly harmful for industrial workers who may have been exposed to high levels of toxins over a long period of time. Exposure to toxic substances is also particularly harmful to children who are generally more sensitive to toxic agents and who have a greater likelihood of exposure as a result of play habits and behavior patterns.

It is rare for toxic exposure to affect just one person, especially in cases of environmental contamination. It is very common for groups of people who have all been exposed to the same toxin because of the same event (for instance, an accidental release of radiation from a nuclear power plant) or because of the same occupation (for instance, repeated exposure to dry cleaning fluid by people in the cleaning industry) to bring legal claims as a group in order to seek redress for wrongful toxic exposure. As a result, toxic tort cases are often brought as class actions.

There are many different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability that are used to establish liability. Proving that a toxic substance has injured a person, however, requires hard work and experience.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Pentagon Attempts to Punish Lawyers for Representing Prisoners

 According to an article in the New York Times, a top Pentagon official encouraged corporations to fire their lawyer if that lawyer works for a firm that is representing prisoners at Guantánamo Bay, Cuba. This is an outrageous attempt to deny due process by threatening lawyers involved in controversial cases. This government seems to forget that ALL people are entitled to due process, not just the people the government likes. Excerpts from the article:

• The comments by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, produced an instant torrent of anger from lawyers, legal ethics specialists and bar association officials, who said Friday that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble.
• “This is prejudicial to the administration of justice,” said Stephen Gillers, a law professor at New York University and an authority on legal ethics. “It’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.
• “We have a senior government official suggesting that representing these people somehow compromises American interests, and he even names the firms, giving a target to corporate America.”
• In his radio interview, Mr. Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.
• Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Ms. Crowley, describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
• Karen J. Mathis, a Denver lawyer who is president of the American Bar Association, said: “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.”
• The role of major law firms agreeing to take on the cases of Guantánamo prisoners challenging their detentions in federal courts has hardly been a secret and has been the subject of many news articles that have generally cast their efforts in a favorable light. Michael Ratner, who heads the Center for Constitutional Rights, a New York-based human rights group that is coordinating the legal representation for the Guantánamo detainees, said about 500 lawyers from about 120 law firms had volunteered their services to represent Guantánamo prisoners.

Source:  "Pentagon Tries To Punish Lawyers For Representing Prisoners" by Bob Kraft, published at his P.I.S.S.D. blog, discussing "Official Attacks Top Law Firms Over Detainees", published in the New York Times.

Automobile Insurance (First Party Coverage)

Everyone should understand the basics of automobile insurance coverage.  For instance, what type of automobile insurance they do and don't need, as well as what each element of that coverage does and doesn't cover.  Jonathan G. Stein, published at his California Personal Injury and Insurance Blog published the following introduction to first party coverage, which I recommend:

Since we are going to talk about insurance, what is it? Why should you spend time reading about insurance? Dont you just call your local agent and he or she tells you what to buy? Since insurance is a very complicated product, lets just talk about insurance for individuals for now.

When you buy an automobile insurance policy, what are you buying? Times up. You are buying a promise. The promise that you buy depends on the type of policy. If you are buying comprehensive coverage or collision coverage, you are buying a promise from the insurance company that they will fix your car if it is damaged. If you are buying liability coverage, you are buying a promise from the insurance company that they will pay for damage you cause as a result of using your car. Liability insurance will be saved for the next post.

Comprehensive and collision are easy concepts. Collision pays for damage to your car if your vehicle is damaged as a result of striking something (except animals). Comprehensive pays for all other damage to your car and is sometimes called other than collision. Comprehensive even pays for the damage to your car if you strike that deer running across the street.

How do they determine your rates? While each insurance company has its own formula, there are some basics. The rate is determined by the type of vehicle you drive, how expensive it is to repair it, and your deductible. Want to lower your rate? The easy way to do that is to raise your deductible. Of course, if you are leasing or financing your car, the lease or finance company probably has a maximum deductible that you can have. Check with them.

At a certain point, it does not make sense to carry comprehensive or collision on your vehicle. Each person's situation is different. However, when the value of the car is under $1,000 or so, it probably does not pay to carry these coverages any more.

Oh, and dont let anyone tell you that your rates go up for making a comprehensive claim. Insurance companies in California can only surcharge you for an at fault accident.

Source:  "What is Automobile Insurance?" by Jonathan G. Stein, published at his California Personal Injury and Insurance Blog.