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Experts Descend Upon ConAgra Plant in Garner, NC

Brent Adams — Wed, 10 Jun 2009 17:23:37 GMT

Industrial accidents are tragic. They are usually unnecessary and preventable. These tragedies are usually caused by defective products or negligence. They occur usually because the employers involved, and independent third party contractors and suppliers failed to take basic safety precautions to protect workers.

The most recent tragedy occurred yesterday in Garner, North Carolina when an explosion at the ConAgra Plant blew open the plant, killed at least 3 workers and sent 4 people to the Burn Center at Chapel Hill, North Carolina and hospitalized at least 38 others.

Experts from around the country have descended upon the little North Carolina town of Garner, North Carolina to investigate what happened.

Governmental agencies such as the US Chemical Safety Board, the agency charged with investigating industrial accidents are on the scene.

ConAgra Foods, Inc., the owner of the plant sent a team from Omaha, Nebraska to investigate.

Undoubtedly third party contractors and suppliers and their insurance company sent teams of experts in with a view towards finding evidence to extricate them from any potential liability for the tragedy.

The unfortunate workers, and the families of the 3 workers tragically killed will most likely not have a team of experts working for them. They are too much in shock to think clearly about how to protect their interest and keep incomes coming into the household to support their families.

You can be sure however, that the experts sent in by the insurance companies that insure ConAgra and any third party suppliers or contractors will be focused solely on how to protect themselves from claims which are sure to come from the victims and their families.

Of course, the injured employees and the families of the deceased employees are entitled to immediate workers’ compensation benefits. However, workers’ compensation benefits are extremely limited. Workers’ compensation insurance does not include payment for pain and suffering, punitive damages and other damages which have certainly been suffered by the employees and their families.

In order to recover more than basic workers compensation benefits, the employees will have to show that the conduct of the employer was substantially certain to cause injury or death. This is a heavy burden for these employees.

If the families can prove that third parties (individuals employed by entities other than ConAgra Foods) were responsible for the tragedy or that products supplied by third parties caused or contributed to the tragedy, the family would be entitled to full compensation for their losses.

It appears that 3 of the ConAgra employees died in the explosion: Barbara McLean Spears 43 of Dunn; Lewis Junior Watson 33 of Clayton; and Rachel Mae Poston-Pulley 67 of Clayton

Originally posted at InjuryBoard by Brent Adams

Manufacturer of deer stand pays penalty for late reporting after recalling deer stands

Brent Adams — Sat, 19 Jan 2008 21:28:34 GMT

Manufacturer of tree stands have been fined by the U. S. Consumer Products Safety Commission for failure to report defects in a timely manner.

In North Carolina these potentially dangerous devises are commonly called "deer stands" because they are used by deer hunters to hunt deer. The hunter uses these deer stands as a seat in a tree high up it the tree. When an unsuspecting deer walks by near the tree the hunter shoots the deer.

The danger of falling from high up in a tree with a loaded rifle or shot gun is obvious. Hunters sit it these deer stands for hours while waiting for a deer to come by.

Each year hundreds of hunters are injured in connection with the use of deer stands.

According to an announcement by Mark G. Rupell, CEO of Ardisam Inc. which is a company that manufactures lawn and garden products and outdoor sporting goods, a settlement has been reached in a $1.6 million product liability action initiated by the U.S. Consumer Product Safety Commission (CPSC). Mark G. Ruppel, CEO, Ardisam, Inc., a manufacturer of lawn and garden products and outdoor sporting goods headquartered in Cumberland, announced Tuesday that a $1,600,000 civil action initiated by the Consumer Product Safety Commission (CPSC) has been settled. Ruppel noted, "The settlement is for considerably less than $1,600,000."

According to Ardisam's legal counsel, the U.S. filed the civil action against the company on July 26, 2007. It was alleged that Ardisam did not report in a timely manner to the CPSC that certain tree stands the company produced and sold contained defects that could make the usage hazardous or create a risk of personal injury or death

Ardisam, which is headquartered in Cumberland, Wisconsin, reported the defect in April of 2004 and conducted a voluntary recall, with the approval of the CPSC, in July of 2004. The government's suit said that the company should have notified the CPSC of the defect sooner than they did. Initially, Ardisam contested the suit, but agreed to a full settlement in late December via payment of a stipulated penalty.

For more information on this subject, please refer to the section on Defective and Dangerous Products.

Originally posted at InjuryBoard by Brent Adams

Wife is Responsible for Hospital and Medical Expenses of her Husband

Brent Adams — Wed, 19 Sep 2007 09:54:41 GMT

When a motor vehicle collision occurs, it is not unusual for the medical expenses for the resulting injuries to be catastrophic.

It is not at all uncommon for medical and hospital expenses to climb in excess of $50,000.00 even for a short hospital stay.

Unless the injured party can recover from a liability insurance policy or health insurance, medical expenses can ruin a family's financial well-being.

The entire family can be affected because of the longstanding common law "doctrine of necessaries." Under that doctrine, a spouse is liable for the necessary medical expenses incurred by the other spouse. Not only could the personal injuries be devastating to the victim of the motor vehicle collision, but the financial consequences could directly affect the victim's spouse as well.

The common law has long held that it was the duty of a husband to provide for the necessary expenses of his wife. This duty arose from the fact of marriage and not for any specific express guarantee or contract on his part. Our appellant courts have long held that a husband is responsible for the medical expenses of his wife. However, until 1987, the Supreme Court has never addressed the issue of whether the wife was liable for the necessary medical expenses of her husband.

This issue was answered by the Supreme Court in the 1987 case of North Carolina Baptist Hospital v. Donnie Harris and Vern Dale Harris. In that case, the lower court upheld a claim made by the hospital against the husband for his hospitalization but dismissed the claim against the wife. On appeal, the North Carolina Supreme Court held that the "doctrine of necessaries," previously only recognized for medical services required by the wife, actually applied to such services provided to either spouse.

The Supreme Court noted that, in recent years, laws relative to the rights of husbands and wives have become gender-neutral. In keeping with this trend, the court held that the wife is liable for the necessary medical expenses provided for her husband.

The defendant wife argued that the "doctrine of necessaries" should be abandoned all together. In response,, the Supreme Court wrote: "We see no reason to take this course. The doctrine has historically served several beneficial functions. Among these are the encouragement of healthcare providers and facilities to provide needed medical attention to married persons and the recognition that the marriage involves shared wealth, expenses, right, and duties. We concluded that the benefits to the institution of marriage will be enhanced by expanding rather than abolishing the "doctrine of necessaries." Our decision is a recognition of personal duty of each spouse to support the other, a duty arising from the marital relationship itself and carrying with it the right to support from the other spouse."

This case underscores the importance of obtaining sufficient medical payment insurance. This insurance is elective and can be included as part of a car owner's liability insurance policy. Most people have medical payment insurance in a relatively low amount ($1,000.00 to $2,000.00). However, medical payment insurance of at least $100,000.00 is available and is relatively inexpensive.

For more information on this subject matter, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Brent Adams

Beware of Subrogation Claims

Brent Adams — Thu, 23 Aug 2007 12:03:38 GMT

When a personal injury case is settled and the victim receives money from the insurance company which insures the negligent party, many times the health insurance carrier makes a claim against the victim for medical bills paid by the medical insurance company.

The medical insurance company claims that they have right of "subrogation" and that as such they are entitled to be reimbursed for any bills they paid under their health insurance policy. A subrogation clause provides that the person or company who has the right of subrogation is entitled to "step into the shoes of" the person who makes a third party claim against a negligent party.

Subrogation clauses are unfair to the insured. The insured pays premiums for health insurance and shou8ld, therefore, be entitled to all the benefits from the health insurance policy. It is not fair to the insured that they would have to give this money back to the health insurance company merely because they made a claim against the third party for the same injuries.

The North Carolina Commissioner of Insurance has issued a regulation which outlaws subrogation clauses in health insurance policies.

However, health insurance companies seek to get around that regulation by their claim that if a health insurance policy is provided by or through an employer, the policy is covered by a federal statute commonly known as ERISA. Under this law, insurance companies are allowed to insert subrogation clauses into the insurance policy. Federal law trumps state law and, according to the health insurance carriers, they may insert subrogation clauses into their health insurance policies. Federal law does allow such subrogation clauses. However, the basic unfairness of these subrogation clauses remains.

In January of 2001, the United States Supreme Court held that neither an employer nor a health insurance carrier can sue an insured to enforce a subrogation clause.

The rules on this entire issue are very complex. In many cases, a lawyer can help the injured victim avoid subrogation clauses. This will result in the victim collecting both from their health insurance policy and from the negligent party. This is only fair since the insured pays premiums on the health insurance policy and should be entitled to its full benefits without any reduction or penalty.

Originally posted at InjuryBoard by Brent Adams

North Carolina Takes Action To Reduce Teenage Deaths

Brent Adams — Sat, 18 Apr 2009 16:48:45 GMT

Over 550 teenagers were killed motor vehicle collisions in North Carolina during the past four years.

Motor vehicle collisions are the leading cause of deaths among 15 to 20 year olds.

If a teen driver has injured you, you may not be alone. In a recent operation done by the North Carolina Highway Patrol, some 8750 citations were issued to teen drives, all of which were in violation of the law. While many of these students will learn their lesson and become better drivers for them, others will not.

Many of these citations were small ones, like seat belts and speeding tickets. It is important to note, though, that most deaths caused by teen drivers are attributed to one of these two factors.

The North Carolina Highway Patrol launched Operation Drive to Live 2009, to reduce teen deaths. The effort was specifically to help reduce the number of teens killed during driving accidents. In the last four years, 554 teens were killed in car crashes. Still, this does not account for others killed due to the student's poor driving habits.

While it is important to crack down on teens to help prevent teen deaths, it is also important to provide restitution for every day drivers and passengers also killed by these accidents. Teenagers often take daring moves on the road, leaving other, unsuspecting drivers at risk.

If you have been injured in a motor vehicle collision, be careful not to make any of the common mistakes made by injured victims. To help you avoid these mistakes order a new free book for North Carolina car accident victims

North Carolina accidents can be reduced through improved education and discipline for teen drivers. While they do not cause all accidents on the roads, many lives can be saved and many injuries avoided, through improved measures.

The North Carolina Highway patrol has published safety tips for teenage drivers.

Perhaps someone you know was injured or killed due to the recklessness of a teen driver. If so, you may be able to take legal action against those responsible. Perhaps you feel that not enough is being done to promote safe teen driving. Through legal measures, people are making a difference in stopping teens and other uneducated drivers from being on the road.

Personal injury attorneys can help you with your own case.

Originally posted at InjuryBoard by Brent Adams

Watch Out For Fly by Night Jobs

Brent Adams — Thu, 09 Jul 2009 22:50:52 GMT

As the economy has gotten worse people who are in need of income will do just about anything to get money to feed and take care of their family. In many cases this will lead to an under-the-table job where the worker will be paid in cash and no one will know that they were working. This can be tempting for someone who is desperate and willing to do almost anything. However, there is quite a bit of risk that is involved with this type of work.

In many cases, the jobs are quick construction jobs in which safety is not a primary concern. Many times there will be no benefits offered, and the person or company that hired the under-the-table worker will not have workers compensation insurance or will claim that the worker is not covered because the employer will claim that the worker is technically not an employee.

You should not work under the conditions imposed by these under the table jobs. It is not worth the risk.

If you have been injured while working in an under-the table job situation and if you are having trouble collecting workers compensation benefits, you should contact an experienced workers compensation lawyer immediately.

Originally posted at InjuryBoard by Brent Adams

Heating Oil Leak Results In $50,000 Personal Injury Settlement

Brent Adams — Wed, 25 Feb 2009 12:52:42 GMT

A Durham County furnace repair company has agreed to pay $50,000.00 to homeowners for personal injuries suffered when their home was contaminated by a heating oil leak. In addition to the $50,000.00 for personal injuries the defendant agreed to pay the lost market value of the house.

The $50,000.00 component of the settlement was because the homeowners had to smell the fumes.

The difficulty in this case from the claimant’s perspective was proving the harmful effects of bad odors. There was no documented physical impairment stemming from the exposure to the oil. The injury was the aggravation of having to breathe odors on a non-stop basis. The homeowners had the constant stench of fuel oil in their clothes.

North Carolina law imposes strict liability for oil spills. The unusual twist to this case is that it resulted in a substantial settlement for personal injuries resulting from the oil fumes in the home.

The homeowners claimed that approximately 40 gallons of heating oil leaked underneath their home in 1998 when the defendant, while working on their furnace, did not properly reattach a fuel line. The spill occurred just days after the plaintiff put the house up for sale. The plaintiffs’ claimed that because of the spill, the property was not marketable.

The homeowner sued the oil maintenance company for negligence and violation of a North Carolina statute in the North Carolina Oil Pollution and Hazardous Substances Control Act.

Under that provision of the statute any person having control over oil or other hazardous substances which enters the waters of this State in violation of the law shall be strictly liable for damages to persons or property caused by such injury.

The female claimant was particularly affected by the odors because she also suffered from inoperable brain cancer. This condition, along with her age and the fact that she was at home all the time made her particularly vulnerable to the oil smell.

Originally posted at InjuryBoard by Brent Adams

"Last Clear Chance" Doctrine Saves Case

Brent Adams — Tue, 24 Jul 2007 09:28:19 GMT

Under the doctrine of contributory negligence, an injured party cannot recover for injuries caused by the negligence of another person if the injured party is himself negligent to any degree. Under that doctrine, it does not matter how reckless, negligent or careless the defendant may be, the injured party may not recover one dime if there was the slightest negligence on his part.

North Carolina is one of only four states that still recognizes this antiquated and harsh law.

Fortunately, there is another legal doctrine in North Carolina that softens the blow of contributory negligence. This is the doctrine of "last clear chance."

Under the "last clear chance" doctrine, the injured party may recover (even though they were themselves negligent) if:

1. The defendant knew, or could have discovered, that the plaintiff was in a position of danger or peril before the injury.

2. The defendant had the time and means to avoid the injury.

3. The defendant negligently failed to use that available time and means.

The importance of the "last clear chance" doctrine was demonstrated in a recent case in which the family of a plumber who negligently failed to wear reflective gear, or put up warning signs while working in a manhole, recovered 1.5 million dollars from an oil company whose truck struck and killed the plumber.

The collision happened at 10a.m., in good weather, when the deceased plumber had pulled a manhole cover open and was checking inside to see if the sewer system had backed up. The defendant truck driver was making a left turn, crossed the centerline and hit the plumber, killing him instantly.

The truck driver claimed that the manhole cover prevented him from seeing the plumber and that there was nothing to put the truck driver on notice that anyone was working in or around the manhole. As verification of the plumber's negligence, the defendant presented evidence that the plumber's truck was parked a block away from the accident scene and that inside the truck were the plumber's reflective vest and reflective triangles that his employer required to be placed on the road. Someone from OSHA testified that the plumber's employer's rules requiring reflective vests and triangles were appropriate.

Although the jury found that the deceased plumber was himself negligent, the defendant truck driver had the "last clear chance" to avoid hitting him. The jury considered evidence that the driver behind the defendant's truck (who was also preparing to make a left hand turn) did see the plumber on the roadway in a kneeling position, holding a screwdriver and a pair of pliers. The argument was that, if the person behind the truck could see the plumber, certainly the defendant's truck driver should have seen the plumber and taken action to avoid the collision. The jury found that the defendant truck driver negligently failed to exercise his "last clear chance" to avoid the collision.

The jury returned a verdict for the plumber's family in the amount of 1.5 million dollars.

Originally posted at InjuryBoard by Brent Adams

Medical Malpractice Insurance Companies Making A Killing

Brent Adams — Sun, 01 Feb 2009 20:59:48 GMT

The next time you hear someone talking about a “malpractice crisis” think about American Physicians Capital.

In a glowing feature article in the January 12, 2009 edition of Barron’s Business and Financial Weekly stock analysts had high praise for the malpractice insurance company and noted that: “it’s difficult to find any company more insulated from economic weakness than this one”.

In a time when most stocks have fallen by at least 50 percent, the stock in American Physicians Capital keeps rising.

From a $10.00 per share price in 2004, stock has risen to nearly $50.00 a share.

The article contained some interesting statistics which belies the claims of the insurance companies that there is a “malpractice crisis”.

The article notes that the company has cut claims in half compared with five years ago.

In interviews with the management of American Physicians Capital it was revealed that the company pays out on only 20 percent of the lawsuits filed. This is in keeping with the national statistics which show that patients only win one out of every five cases that actually go to court.

More significantly, the company noted that the size of the settlements has been trending significantly lower.

The company explains that part of the reasons that settlements are significantly lower is: “the new hard-line way we fight cases, and part of it is reform that has set damage caps”.

The chief executive of American Physicians Capital, Kevin Clinton, also claimed that the significantly lower settlements: “is also due to the way juries have stopped giving ridiculous billion dollar awards”.

The truth is, no insurance company has ever had to pay a billion dollar award in a medical malpractice case. Nevertheless, this type of rhetoric has given rise to what many of the public feel is a “malpractice crisis”.

Interestingly, the article notes that the company two years ago told its lawyers to stop accepting “court-house-step” settlement offers. The company felt that the settlements encouraged more claims from certain attorneys and that the new practice is one of the reasons that the claims have been cut in half compared with five years ago.

The company also has instituted formal training for doctors on how to improve communication with patients.

The company charges annual premiums depending upon the specialty involved between $200,000.00 and less than $20,000.00 per year.

The article did not indicate whether premiums have gone down since claims have been cut in half five years ago. There is a mention, however, of “what looks to be a temporary round of price cutting among local competitors”.

Before you shed crocodile tears for malpractice insurance companies who claim they are in the middle of a “malpractice crisis”, you should note that American Physicians Capital earns 16 percent on its total investment equity. Wouldn’t it be nice if we could go down to the bank and earn 16 percent on our savings account?

The article noted that the insurance company makes this high rate of return in part by handling claims strictly to minimize the payouts.

Originally posted at InjuryBoard by Brent Adams

A "Forgotten Appeal Right" For State Employees?

Michael Byrne — Fri, 05 Oct 2007 17:13:56 GMT

As most state employees know, a written warning is the lowest level of formal discipline imposed under North Carolina personnel policy. Many agencies also have less formal forms of written discipline, such as "supervisor's complaints" (DMV), "TAPS" entries (DOC), and "documented counseling" (DHHS and others). Written warnings carry only internal appeal rights, or none at all. The "lesser" written reprimands I've mentioned carry none at all in most cases. If an employee has one of these placed in his or her personnel file, and it contains misleading and inaccurate information, is there any meaningful appeal right available? Fortunately, the answer is, "yes."

N.C.G.S 126-25, part of the State Personnel Act, allows any state employee (including ones who haven't reached career status) to grieve management's refusal to remove from his or her personnel file any material that is "misleading" and/or "inaccurate." Most important is that the appeal right under N.C.G.S. 126-25 allows employees to pursue such cases beyond the "sandbox" of the internal grievance process and appeal to the Office of Administrative Hearings for a contested case hearing before an Administrative Law Judge - and further to the State Personnel Commission and the Superior Court, if need be.

This appeal to OAH is critical. While some employees enjoy success with internal grievances, most who visit my office feel that the deck is somewhat stacked against the employee in the internal grievance process. Whether that's true or not (I believe it generally is) the employee is certain to get a fair hearing of his or her case, if properly presented, at the OAH level before an independent administrative law judge.

How does the appeal right work?

Let's assume a hypothetical DMV examiner receives a written warning that says the following:

On September 17, 2007, you waited on Customer Smith in the Asheville DMV License Office. After waiting in line for four hours, Customer Smith was turned away by you for not having proper documentation. In fact, you should have determined Customer Smith's documentation was appropriate by waiving the requirement that Customer Smith show he is not a convicted murderer prior to receiving a license to drive a school bus.*

DMV policies offer you no appeal rights in this matter. This written warning will remain in your personnel file for 18 months or until the beginning of the 23rd century, whichever is shorter.

Let's also assume that, in fact, DMV policies made it clear that our hypothetical examiner did not have the authority to waive improper documentation.

Thus, we have a written warning that is inaccurate - as the employee did not in fact have authority to grant the murderous Customer Smith a license to drive children back and forth from school. However an examiner also generally has no control over how long the wait line is in his or her particular office. Thus, to the extent the written warning implies that the four-hour wait is the fault of our examiner, the written warning is also misleading. What to do?

The first step is to immediately make a written request to your supervisor that the offending material be removed from your file as misleading and inaccurate, explaining why it is. Assuming your supervisor refuses this request, you should then check your agency grievance policy and follow all the appropriate steps. While consulting with a lawyer may by useful (I assist many employees with internal grievances), grievants in the internal process are not permitted to have formal legal counsel.

Be very careful, as with any internal grievance, to follow the timelines from step to step. Quite a few agencies I've seen have timelines of as little as five calendar days for filing a Step 2 or Step 3 grievance (I question whether these are really enforceable in many cases, but that's an issue for another day). Read the policy, and follow it to the letter.

Assuming you reach the end of the internal grievance process without relief, you must then file a Petition for a Contested Case with the Office of Administrative Hearings within 30 days of receiving the last internal denial of your grievance. Then, you can proceed in OAH on your own or hire a lawyer. If you take matters to that level a lawyer is a virtual necessity. Your chances of prevailing against an agency represented by an attorney from the Department of Justice are between slim and none; the procedural issues alone are quite complex.

But what, you ask, about the statement that you have no appeal rights for the written warning? While it is true that you cannot appeal the issuance of the written warning, you can appeal to have it removed from your file on the grounds it is misleading and inaccurate. Once it's removed from your file, it's basically useless. Of course, the agency may choose to replace it with an accurate written warning - but in our hypothetical here, that would be a practical impossibility.

Now, most grievance policies require that a grievance be filed within 15 days of the grievable issue arising. What if 15 days have elapsed since the document was issued, and the employee (a) failed to file a grievance, and/or (b) didn't know about the document at all? In that case, I would simply make a written request for the removal of the document from the employee's personnel file. The supervisor's refusal to grant the request would in my view "re-start" the time clock to file a grievance. This is especially the case given that the general rule prohibits a time limit from being asserted against employees when the appeal right was not communicated to them in the document concerned - as was the case in our hypothetical.

So, either through the internal process or OAH, N.C.G.S. 126-25 provides a powerful tool for employees who have inaccurate or misleading information placed in their files - and this would include so-called "private" or "satellite" files kept by supervisors or managers, too. This is the case even when, as with the warning here, you cannot appeal the issuance of the warning itself. But if you can have the document removed from your file and destroyed as misleading and inaccurate, an appeal under N.C.G.S. 126-25 can provide a result that's just as favorable.

* Not based on any actual situation.

Originally posted at InjuryBoard by Michael Byrne