Day on Torts

November 13, 2009

Inflatable Seat Belts?

Ford Motor Company has announced that is bringing to market the world’s first automotive inflatable seat belts, combining attributes of traditional seat belts and air bags to provide an added level of crash safety protection for rear seat occupants.

“Ford’s rear inflatable seat belt technology will enhance safety for rear-seat passengers of all ages, especially for young children who are more vulnerable in crashes,” said Sue Cischke, Ford group vice president of Sustainability, Environmental and Safety Engineering. “This is another unique family technology that builds on our safety leadership, including the most top safety ratings of any automaker.”

Ford will introduce inflatable rear seat belts on the next-generation Ford Explorer, which goes into production next year for the North American market. Over time, Ford plans to offer the technology in vehicles globally.

November 11, 2009

Motorcycle Deaths and Injuries

by The Law Offices of John Day, P.C.

811208 The National Highway Traffic Safety Administration (NHTSA) recently released a report titled "Motorcycle Helmet Use and Head and Facial Injuries." The Report has a lot of data on motorcycle crashes and the injuries the result, comparing the injuries received by those wearing helmets and those that do not.

Here are a few highlights from the report:

The combined data set contains information on 104,472 motorcyclists involved in crashes in these 18 States during the years 2003, 2004, and 2005.
In the data set, 57 percent of motorcyclists were helmeted at the time of the crashes and 43 percent were non-helmeted. For both groups, about 40 percent of motorcyclists were treated at hospitals or died following the crashes. However, 6.6 percent of unhelmeted motorcyclists suffered a moderate to severe head or facial injury compared to 5.1 percent of helmeted motorcyclists.
Fifteen percent of hospital-treated helmeted motorcyclists suffered traumatic brain injury (TBI) compared to 21 percent of hospital-treated unhelmeted motorcyclists. TBI severity varied by helmet use. Almost 9 percent of unhelmeted and 7 percent of helmeted hospital-treated motorcyclists received minor to moderate TBI. More than 7 percent of unhelmeted and 4.7 percent of hospital-treated helmeted motorcyclists sustained severe TBI.
As of 2007, fatalities had increased for the 10th year in a row, an increase of 144 percent compared to 1997. While there has also been an increase in motorcycle registrations during this period, the rate of increase in fatalities has been greater than that of registrations.
This increase in deaths has been especially marked among riders 40 and older, who now constitute approximately half of all deaths. In 1997, this older group accounted for 33 percent of rider deaths, but had grown to 49 percent by 2007. Although fatalities increased in all age groups, the largest increase has been in the group of riders over the

November 11, 2009

Tort Cases Pending Before the Tennessee Supreme Court

by The Law Offices of John Day, P.C.

F. Chris Cawood v. Linda Booth, et al., E2007-02537-SC-R11-CV, (Tenn. Ct. App. Nov. 25, 2008) has a set of facts you don’t run into every day or, at least, I hope you don’t run into everyday. Here is the description of the case from the opinion of the Tennessee Court of Appeals.

The plaintiff, F. Chris Cawood, is an attorney. He represented Tammy Clark (“the Client”) in a divorce case. During the post-judgment phase of that representation, the plaintiff and the Client engaged in a sexual relationship. On occasion, while in the plaintiff’s office, the plaintiff would masturbate in the presence of the Client, following which he would give her a credit on her bill. After she complained to local authorities, the Roane County Sheriff’s Department equipped the Client with concealed audio and video equipment. Thereafter, unbeknownst to the plaintiff, she videotaped him while he was masturbating. During this event, the Client hit him on the buttocks and pinched his nipples. Following this event, the videotape was placed under the control of Linda Booth of the Sheriff’s Department. Booth gave the video to another investigator, Dennis Worley, who happens to be the Client’s uncle. Worley was not involved in the investigation but wanted to see the videotape to ascertain if his niece had done anything illegal. Worley viewed the videotape in an office shared by officers Randy Scarbrough and Jon French. During the viewing, the door to the office was open. The video was viewed not only by Worley, but also by Scarbrough and French, a bail bondsman who was passing by the office, and others. The plaintiff filed suit against Booth, Worley, Scarbrough and French alleging (1) a violation of the Wiretapping and Electronic Surveillance Act of 1994, (2) invasion of privacy by public disclosure of private facts, and (3) outrageous conduct. The trial court granted all defendants summary judgment as to all claims.Plaintiff appeals. We vacate the grant of summary judgment to Booth and Worley on the plaintiff’s outrageous conduct claim. In all other respects, the trial court’s judgment is affirmed.

Hmmm. The appellee’s brief will be filed in December, 2009. Expect an opinion in the Summer of 2010.

November 10, 2009

Seat Belt Use Continues to Increase

by The Law Offices of John Day, P.C.

The use of seat belts continues to increase in the United States.

Seat belt use in 2009 stood at 84 percent, a gain from 83 percent use in 2008. This result is from the National Occupant Protection Use Survey (NOPUS) which is the only survey that provides nationwide probability-based observed data on seat belt use in the United States.

Vehicle occupants in Tennessee and other southern states continue to use seat belts at a level less than the national average (82%). Those in pickup trucks have the lowest rate of use (74%).

November 9, 2009

Thoughts About Subrogation

by The Law Offices of John Day, P.C.

A defense lawyer and I were having a drink the other day and he told me that from time to time he has difficulty getting cases settled at mediation because plaintiff’s lawyers don’t have information about subrogation interests. Here are some tips to avoid such problems:

At the initial client meeting, as you help you client understand his or her rights and go through the outline of the types of damages he or she can recover if the case is successful, explain the law of subrogation. To do so you have to ask whether any insurance company or governmental entity paid the outstanding medical bills. Then, explain that usually it will be necessary to re-pay the entity that paid these bills monies from the proceeds of any settlement or judgment. This not only informs the client of his or her obligation to re-pay the bills but also sets client expectations at an appropriate level.
If the bills are paid by a private entity get a copy of the applicable insurance policy or summary plan description to determine if a right of subrogation or reimbursement exists and if the plan is an ERISA plan.
If the bills were paid by a governmental entity (in Tennessee this usually means either Tenncare or Medicare) you need to either know the law of subrogation or look it up. The bottom line: government payors have a right to be re-paid and it is your obligation, as a lawyer, to help them get re-paid. If you don’t do so you (the lawyer) will be on the hook to re-pay these bills, so it is in your best interest to understand this law and help your client fulfill their obligation.
Remember that your client’s medical bills may have been paid by worker’s compensation. If so, the payor has a statutory right of subrogation. Ignore it at your peril.
Gather all of the medical bills and determine who paid them. Your client may not have given you accurate information about the entity that made the payments on the bills. For instance, sometimes a client receives both Medicare and Tenncare benefits. You need to know each entity that paid bills. It is also possible that your client’s auto insurance carriers paid some of the bills under a medical payments provision in the policy. Get a copy of the policy to be sure, but auto insurance carriers almost certainly have a subrogation right for any such payments.
Private health insurers routinely send letters asserting subrogation interests. Tell your client that they may be receiving such letters and make sure you get them.
Ascertain the amount paid by each third-party before the mediation of the case. This can be difficult, especially with Medicare, but start early and keep at it. Do not accept numbers over the phone – try to get the payment amounts in writing. If you get a total-payment figure over the phone confirm the number in an email or letter. Do not wait until the day or even the week before the mediation to do this – you will not get the information you need before the mediation.
You will need to check the claimed subrogation interest versus the amount actually owed. Sometimes insurers include bills for care unrelated to the incident. Thus, you must get a print-out of who the insurer paid and the date of service for that payment and compare it with your client’s medical records.
Get the name and telephone number of a contact person at the third-party payor that you can contact during a mediation. Make sure you understand if their office is on Central time, Eastern time, or some other time – you need to know how late you can reach them. Advise them that you have a mediation on a given day and that you will need to be able to reach them during the mediation.
Some payors will reduce the subrogation amount if the client is not "made-whole" even if they have no legal obligation to do so. A version of the made-whole doctrine is statutory for Tenncare payments and the common law made-whole doctrine applies to med-pay and non-ERISA health insurance policies in Tennessee. Understand the law applicable to each third-party payor before the mediation.
In the days or weeks before the mediation as you explain the process to your client remind them once again of the need to re-pay the entities that paid the medical bills. By doing so you are reminding them of their legal obligation and at the same time setting a reasonable level of expectation of what will occur at the mediation.
Have the relevant contact information and the claimed subrogation amounts with you at the mediation. How often you contact the payor during the mediation is subject to many factors, but generally speaking as want to call them as the settlement appears to be coming together. You can often negotiate the amount due, but be armed with the facts that will help you do so. The best fact to use to negotiate a reduction is a liability insurance policy that is totally inadequate given the injuries and the lack of any assets from the defendant. There are a multitude of other factors, such as immunity for one or more defendants, a damage cap for a governmental entity, very difficulty liability facts, etc. If the made-whole doctrine is applicable all arguments must be marshaled and presented. Some carriers are willing to cut their subrogation amount if you demonstrate a willingness to help get a difficult case resolved by reducing your fee. Confirm any deals made in writing or by email.
Try to have the subrogation issues resolved before you leave the mediation. If that is impossible, then attempt to make the settlement subject to a satisfactory resolution of subrogation interests in the next few days. Be sure the language of the agreement with the defendant provides that it is you (and your client) that must be satisfied with the resolution of the subrogation interests.
As I mentioned above, it is difficult to get a straight, final answer out of Medicare. Start early, and write to them often. Try to get the name and number of a human being. If you cannot get an answer out of Medicare before the subrogation, you will be forced to estimate the amount of their subrogation interest. You will usually be safe if you assume that Medicare paid 40 cents on each dollar charged by a health care provider. In other words, if the hospital bill shows $10,000 you can assume that Medicare paid $4000. It will usually be less. However, this will help your client understand his or her "net" recovery and will help you negotiate with reasonable comfort.

Why should you care about all of this? If you do not have a knowledge of subrogation law it will be more difficult to settle your client’s case because your client will not be able to understand the "net" recovery. If the client thinks that he or she is going to receive "X" and then finds out that "X" has to be reduced by a subrogation payment, he or she going to be upset. If the subrogation interest is one that imposes an obligation of the lawyer to protect, you risk financial loss and/or disciplinary action for failure to fulfill that obligation.

In summary, part of being a plaintiff’s lawyer is having a good grasp on the contractual and statutory rights of those who have paid your client’s medical bills. Another part of being a plaintiff’s lawyer is addressing such matters directly in a manner consistent with the law, with both the payor and the client, to avoid future unpleasantness.

November 8, 2009

Precise Fix for Defect in Toyotas Still Unknown

by The Law Offices of John Day, P.C.

Toyota has a problem with some of the vehicles it has manufactured and a little over 40 days ago issued a recall of 3.8 million of them. According to Toyota, "[r]ecent events have prompted [the company] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver’s floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death." Read more here.

Something else is going on. Read this statement released by the National Highway Traffic Safety Administration (NHTSA) on November 4:

A press release put out by Toyota earlier this week about their recall of 3.8 million Toyota and Lexus vehicles inaccurately stated NHTSA had reached a conclusion "that no defect exists in vehicles in which the driver’s floor mat is compatible with the vehicle and properly secured." NHTSA has told Toyota and consumers that removing the recalled floor mats is the most immediate way to address the safety risk and avoid the possibility of the accelerator becoming stuck. But it is simply an interim measure. This remedy does not correct the underlying defect in the vehicles involving the potential for entrapment of the accelerator by floor mats, which is related to accelerator and floor pan design. Safety is the number one priority for NHTSA and this is why officials are working with Toyota to find the right way to fix this very dangerous problem. This matter is not closed until Toyota has effectively addressed the defect by providing a suitable vehicle based solution.

November 7, 2009

Duty to Rescue Created By Statute

by The Law Offices of John Day, P.C.

A little over a week ago I wrote this post about the general rule in the law of torts that one person does not have a duty to rescue another from harm. To be sure, there are exceptions to that general rule, but the fact remains that this is one area of tort law in where the duty imposed by law is generally less than that imposed by the moral code of most people.

This post from the Volokh Conspiracy notes that some states impose a duty to rescue crime victims or report crimes. The 10 states listed by Volokh with "duty to rescue" statutes are California, Florida, Hawaii, Massachusetts, Minnesota, Ohio, Rhode Island, Vermont, Washington and Wisconsin. Most of the statutes, however, impose only a very limited to duty to call the police if you witness a serious crime such as murder or rape, and can summon help without endangering yourself. Vermont imposes the highest level of responsibility by requiring assistance to the victim.

November 5, 2009

More on Dangers of Texting While Driving

by The Law Offices of John Day, P.C.

I have written before about the dangers of texting while driving (here is a post about the danger of posed when truckers text and drive), and the Tennessee Legislature recently outlawed the practice.

Here is a game developed by the New York Times that demonstrates the danger.

November 4, 2009

Tort Cases Pending Before the Tennessee Supreme Court – Physician Assistants

by The Law Offices of John Day, P.C.

There are a significant number of cases of interest to Tennessee tort lawyers pending before the Tennessee Supreme Court. One of those cases is Cox v. M.A. Primary and Urgent Care Clinic, 2009 WL 230242 (Tenn. Ct. App. 230242 (Jan. 30, 2009).

The issue in the case is the appropriate standard of care for a physician’s assistant. The Court of Appeals ruled as follows:

the services provided by a physician assistant are provided under the supervision of a licensed physician and within the scope of practice of that physician, who is responsible for the treatment rendered by the physician assistant. Consequently, the standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices.

November 3, 2009

Texas Supreme Court Weighs In On Collectability Issue in Legal Malpractice Cases

by The Law Offices of John Day, P.C.

I have written in the past about whether a plaintiff in a legal malpractice action arising out of the alleged mishandling of the plaintiff’s underlying case should have to prove not only that the firm committed malpractice and that damages would have been awarded if malpractice had not occurred but also that the damages were collectable. This post will link you other posts on this subject.

The Texas Supreme Court has ruled that "(1) the amount of damages that would have been collectible in the prior suit is the greater of the amount of a judgment for damages that would have been either paid or collected from the underlying defendant’s net assets; and (2) the time at which collectibility is determined is as of or after the time a judgment was first signed in the underlying case."

The case is AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION, No. 07-0818 (Texas Oct. 30, 2009). Read the opinion here.