Day on Torts

February 17, 2009

Liability Insurance Rate Increases Coming?

Liability insurance companies make money in two major ways. First, they make money on the insurance product – doing good underwriting, setting appropriate rates, and properly managing claims. Second, insurance companies make money holding today’s premiums to pay tomorrow’s claims (and claim expenses). That money is invested, and the investment income and capital gains on the investments are a big part of the net income of insurance companies.

Now, the stock market is in the toilet and the bond market is more complicated than ever. Short-term cash yields virtually no interest, and Treasuries have a very reduced yield. It is reasonable to assume that investment income is down, way down.

So, will rates be increasing? Yes. Will lawyers and juries be blamed? Of course.

February 16, 2009

Paul Does It Again

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

Paul Luvera has another great post on his outstanding blog, Plaintiff Trial Lawyer Tips.

A sample: "Focusing on the bad conduct of the defendant shifts the availability bias and causes the defendant to be the subject to the greater weight of scrutiny instead of plaintiff. Start with defendant’s conduct."

Enjoy.

February 15, 2009

Sunday Spoof – The AMA’s MFA Program

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

It was almost three years ago, February 26, 2006, that this Sunday Spoof first appeared. In the last three years, I have added another daughter and a few pounds. But the effort of doctors to limit their responsibility for harm caused by their negligence continues, as does the fiction that doctors are leaving Tennessee because we don’t have caps on damages.

Secret Memo Discovered in Hotel Bar!

I found this memo at an empty corner table in the bar in the basement of the Hermitage Hotel in downtown Nashville, sitting on table next to an empty bottle of Opus and two wine glasses.

To: TMA Director for Tort Reform

February 13, 2009

Diagnosis of Appendicitis

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

State Volunteer Mutual Insurance Company’s Winter 2008-09 quarterly newsletter, Risk Points, has an interesting article discussing the diagnosis of appendicitis. This illness occurs in 250,000 people in the United States every year, and the mortality rate increases 500% if the appendix ruptures.

A sample from the article: "Thus clinicians should focus on the time of onset rather than the time the patient first presents for evaluation when deciding whether a ‘wait and see’ approach is warranted. A good habit is a scheduled return appointment or referral within a reasonable time frame for a second evaluation in patients with unconfirmed abdominal pain etiologies When a diagnosis is unclear, it is crucial that your rationale, patient instructions and followup plan are well documented in the chart."

The article begins on Page 2.

February 12, 2009

Vicarious Liability in Trucking Cases

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

It is not uncommon for wrecks involving tractor-trailer rigs to result in serious injury and death. It is also not uncommon for there to be inadequate insurance coverage or other assets to make whole the victims of the trucker’s negligent acts.

Thus, it is not uncommon for lawyers who represent the victims of the these wrecks to look to the conduct of others to see what role they played in contributing to the wreck.

Here is an article from FDCC Quarterly titled "’But I didn’t do it!" Expanding Theories of Vicarious Liability." Written by Robert T. Franklin, General Counsel to the Maryland Motor Truck Association, the article discusses court decisions from around the country against freight brokers and shippers. Those of you who are plaintiffs’ lawyers will not like the tone of the article (it is not particularly complimentary of the plaintiffs’ bar) but there is no reason why you cannot use his research to help you serve your clients.

February 11, 2009

Auto Fatalities Decline

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

The National Highway Traffic Safety Administration has reported that automobile accidents for the first 10 months of 2008 are down significantly when compared with the same period in 2007.

Fatalities are down 10% to a total of 31,110 deaths in the first 10 months in the year. If these numbers hold until the end of the year, total deaths will be under 38,000.

Thirty years ago, in 1979, there were 51,093 deaths on our nation’s highways. Of course, the number of vehicles on the road and the number of miles driven have increased dramatically during this time?

February 11, 2009

Fear of HIV Lawsuit – Defendant Roberto Alomar

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

CNN reports that Roberto Alomar has been sued in New York by his ex-girlfriend, who alleges that he exposed her to the HIV virus by engaging in unprotected sex with her while he was suffering from HIV/AIDS. She has tested negative for the disease. Here is a copy of the complaint.

Alomar’s attorney says the lawsuit is frivolous (surprise) and says his client is healthy and wants to keep his health status private. Hmmm.

Would the ex-girlfriend have a claim in Tennessee? Perhaps. Tennessee does recognize a claim for negligent transmission of a sexual disease, but recall she did not get a sexual disease. Her claim is for emotional distress arising from fear of contracting a disease that she did not get.

February 10, 2009

Medicare Subrogation in Wrongful Death Cases

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

From time to time I will see a question posted on the trial lawyers’ listserve asking whether Medicare has a subrogation interest in wrongful death proceeds. The answer is "yes," and this opinion helps explain why.

Tennessee wrongful death law permits the recovery of medical expenses incurred between the injury caused by negligence and the death. Missouri has similar law, and the Eighth Circuit Court of Appeals affirmed the right of Medicare assert a right to a portion of the proceeds.

The case is Mathis v. Leavitt, No. 08-1983 (8th Cir. Jan. 30, 2009). Read it here.

February 9, 2009

Thought-Provoking Article

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

Today’s USA TODAY includes an interesting article titled "How much ‘truth’ is too much?" written by Rod Dreher. The article addresses the impact of the Roman Catholic Church’s sex abuse sandal on the life of the author, who investigated and wrote about it.

Readers who know me know that our firm filed the two successful cases against the Nashville Diocese of the Roman Catholic Church. We were associated in the cases by John Hollins, Jr. I will not go into details, but suffice it to say that these two cases changed my life, and not in a positive way. I continue to struggle with conduct of the Church in those cases, actions that I did not believe would be even possible from those affillated with any respectable church. Perhaps I was naive, but unlike most times in my life the education I received has had more negative consequences than positive.

Like the author, I disagree with the concept expressed by Father Richard John Neuhaus, who is reported as having said "[t]here are things [Catholics] really don’t want to know about their church." Like the author, there are times I wish I had not looked under the rock. And, like the author, I sometimes wonder "[h]ow much reality must we choose to ignore for the greater good of our own souls, and society?"

February 6, 2009

More of “Ruining a Deposition”

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

Here is Part 2 of Evan Shaeffer’s post called "15 Ways to Ruin a Deposition." Evan writes "The Trial Practice Tips Weblog" and "The Legal Underground." Here is Part 1.