Truck Accidents

September 22, 2011

Truck Accidents: Finding Coverage and Bad Conduct

It is easier to file a lawsuit against a trucking company than a truck driver. This is true because human beings are likely to feel more comfortable placing blame on a big business than pinning it on one, possibly sympathetic, truck driver. We humans are folksy like that.

Juries are not told of the existence of insurance in traffic collision cases, leaving the juries wondering who is footing the bill. Most juries get it, but they are not entirely sure because it seems so unbelievably odd that no one mentions insurance. The collateral source rule is not understood by the public.

I had a trial once in a truck accident case where we did clearly point to the commercial defendant. He was a great guy. We tried to leave him out of it as much as possible. But after the verdict, one juror was extremely concerned that the defendant driver – who left an “I don’t have two nickels to rub together” impression – would have to pay out of his pocket after the verdict. “That nice Mr. So and So is not going to have to pay for this, is he?” The take-home message for me: you have to make crystal clear the corporate entity is the one on the hook, not the likable driver.

September 13, 2011

Truck Accident Safety Regulation Gets Flipped on Technicality

by Ronald V. Miller, Jr.

Reams of studies on the relationship between driver fatigue and big rig truck accidents are just a Google click away. No one has seriously disputed this premise since federal regulators first limited commercial truck driver road time in 1940.

September 12, 2011

Confidential Settlements

by Ronald V. Miller, Jr.

Pat Malone writes a guest blog on Don Keenan’s Trial Blog arguing that confidential settlements undermine public safety and justice. 2013 Update: the link is now broken, but this post is still worth reading.

His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all the facts about the defendant’s conduct.

Specifically, Malone suggests:

Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.

Pat Malone is an extremely well-respected lawyer who not only gets great results for his client but also graciously spends a lot of time helping other personal injury lawyers. I also agree with his premise: there is doubt that confidential settlements make it harder for the next plaintiff. This also makes the company less accountable, too, in the big picture.

But here’s the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them they should.

Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, “Okay, let’s try the case.”

Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would have had the guts to play it through and I knew it. So we plotted a “file a motion to enforce the settlement and, in the off chance we lose, we try it” strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.

So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release. Continue reading

July 26, 2011

Inside the Mind of a Car Accident Claims Adjuster

by Ronald V. Miller, Jr.

This post was supposed to be about Medicare set-asides but I started with such a long intro about the psychology of claims adjusters that I’ll just hit the Medicare issue in a later post. (Or I’ll completely forget about it.)

To understand claims adjusters, get inside the labyrinth that is the claims adjuster’s mind. (Why labyrinth? I’m just trying to use mildly inflammatory language. I’ll stop.) Insurance claims adjusters are more Pete Rose than Barry Bonds: they get paid for singles, not home runs. The great things a claims adjuster does vanish into thin air; the mistakes live on. Ironically, plaintiffs’ lawyers operate in the exact opposite world: hit a few million-dollar verdicts in a row and everyone forgets your losses. Reason #42,353 why plaintiffs’ attorneys and insurance adjusters are the Montagues and Capulets.

Accident lawyers have a misconception about this, thinking adjusters get hugs from the higher-ups for ripping off a plaintiffs’ lawyer in a settlement negotiation. Actually, hugs is the wrong word – they do get hugs. But mostly, that’s it. The way to make a name for yourself is not by screwing plaintiffs’ lawyers but by not screwing up yourself. Make sure everyone likes you and don’t make any mistakes. Overpaying on an accident case is not that big of a screw up: but failure to have a death certificate in the file before paying a wrongful death case? That is a federal crime in the insurance world. Under-reserving a case? That’s an aggravated felony.
Continue reading

May 26, 2011

Medicare Liens: New and Better Law?

by Ronald V. Miller, Jr.

Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I’m sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.

Medicare, Medicaid and State Children’s Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged – as a class – two things: (1) Can Medicare/Medicaid (hereinafter “Medicare because I’m sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let’s be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client cannot pay the reimbursement claim after the settlement money has been turned over to the client.

April 11, 2011

Property Damage Claims Releases

by Ronald V. Miller, Jr.

Before a client executes a release or signs a check for a property damage claim, I want to review the release if they have a potential personal injury claim from the accident. Particularly in uninsured motorist cases, but this paranoia extends to every type of accident case.

Why? I don’t want the insurance company to pull a fast one and slip in a full release under the guise of a property damage release for the client’s car.

In years past, after looking at approximately one zillion property damage releases, the Oliver Stone conspiracy has never come to pass. Insurance companies have always been straight with me. Until this week… Continue reading

February 14, 2011

New Truck Accident Laws: Electronic On-Board Records

by Ronald V. Miller, Jr.

Driver fatigue is a frequent cause of truck accidents. How frequent is a matter of opinion.

But more facts are on the way to creating informed opinions thanks to the Federal Motor Safety Administration’s new Compliance Safety Accountability Program. Safety reporting is the defining feature of this program. One of my favorite aspects is the use of electronic on-board recovery. The new rule requires trucking companies who have violation rates of 10% or higher, regarding discrepancies in time spent on the road and time recorded in their logs, to install recorders in all of their vehicles.

The home run play would be to require electronic trucking logs in every vehicle. The problem of falsifying trucking logs has been well known by truck accident lawyers for years. But the proof is hard to come by. Unfortunately, transportation has not bounced back like the rest of the economy yet and there is little inertia in the Obama administration to take any action to increase transportation costs.

December 9, 2010

Refer Your Personal Injury Cases to Us. Seriously.

by Ronald V. Miller, Jr.

The Insurance Journal reports a rise in legal malpractice claims. Incredibly, there has been no hand wringing about increased malpractice rates for lawyers or fears that lawyers can no longer keep their practices open as their insurance rates rise. We have never had a legal malpractice claim yet our rates continue to increase. No one cries for us.

A part of the rise in the number of legal malpractice claims is countersuits against lawyers who are suing their clients to pay their bills. But I think the larger problem is what the article calls “door law,” a phrase I have never heard before but I like. Door law is when lawyers take any client who walks through the door who might generate a fee. When law firms step outside their areas of expertise, bad things will happen. Continue reading

November 29, 2010

Truck Accident Trials and Jury Credibility

by Ronald V. Miller, Jr.

An Illinois court awarded $2.5 million in a lawsuit against a truck driver who admittedly (1) crossed the median strip and hit the Plaintiff and (2) had been driving for 19 hours that day.

Obviously, and the result underscores this point, this is a tough case to defend on liability. If you are Defendants’ truck accident lawyer, what kind of defense do you muster in a case like this? Oh, they always have something it seems. Here, they went for the “everything and the kitchen sink” defense.

First, they claimed his vision was impaired because of diabetes. This is a lot better defense in a passenger car case than it is in a truck accident case. If you are a truck driver driving a big rig truck, we expect you to have your diabetes under control or don’t get behind the wheel of the dangerous weapon that is a truck. Second, and even more improbable, the defendants’ truck accident lawyer also argued that the accident occurred because the truck driver’s tire exploded.

November 15, 2010

What Do I Get for My Own Wrongful Death?

by Ronald V. Miller, Jr.

When you die in a fatal crash in Maryland, two claims arise: a wrongful death action and a survival action. Wrongful death claims are for the suffering and economic loss for surviving family members on their own behalf. The survival action is brought by the estate, which means it is actually the only claim the person who died really brings for themselves, in their own name, for their own loss of life.

If you die instantly in a Maryland accident – or there is no proof of conscious pain and suffering – defense lawyers argue there is no survival action or no claim for the decedent for their death.

Maybe I think this stuff through a little too much, which makes me wonder if I can keep this job until retirement. But it just seems ludicrous to me that a person has no cause of action in their own right because we can’t prove they suffered before they died. A trial court in Maryland recently took this a step further, ruling that there is no conscious pain and suffering when a five year-old boy drowns in a pool because there was no “evidence” of conscious pain and suffering. The Maryland Court of Appeals thankfully reversed the trial court on this point because it is obviously more likely that the poor child suffered. (I would love to be wrong about this and I try to make myself feel better by thinking not that long a period. But it does not make me feel better.) Continue reading