Raleigh Personal Injury Lawyer - Miscellaneous

Policyholders Win Flood v. Wind Issue

Brent Adams — Fri, 09 Oct 2009 00:06:12 GMT

Insurance companies have long sought to avoid liability for hurricane damage to property they insure by claiming that a hurricane loss was caused by flood rather than wind.

It did not matter whether the initial loss was clearly caused by wind. If, after that initial wind loss, a flood occurred insurance companies could many times escape their liability by arguing that because the policy holder could not prove whether damage was caused exclusively wind that the policyholder did not prove its case.

The Supreme Court of Mississippi in an October 8, 2009 opinion made it much harder for insurance companies to avoid such claims in the state of Mississippi.

The case, Corban v. USAA held in essence that if an insurer sells a homeowners policy labeled "all risk", it cannot apply ambiguous or contradictory exclusions to deny a claim.

In addition, it held that :"If the property suffered damage from wind, and separately was damaged by flood, the insured is entitled to be compensated for those
losses caused by wind. Any loss caused by '[flood] damage' is excluded. If the property
first suffers damage from wind, resulting in a loss, whether additional '[flood] damage'
occurs is of no consequence, as the insured has suffered a compensable wind-damage loss.
Conversely, if the property first suffers damage from flood, resulting in a loss, and then wind
damage occurs, the insured can only recover for losses attributable to wind."

The defendant insurance company had argued that the wind and flooding losses were indivisible and that because flood damage was excluded, there could be no recovery. The court rejected this argument.

Significantly, the court also ruled that after the policyholders prove that their property was damaged, the burden shifted to the defendant insurance company : "to prove by a
preponderance of the evidence, that the causes of the losses are excluded by the policy, in
this case, '[flood] damage.'”

Read commentary on the case by the lawyers who represented the policyholders.

Originally posted at InjuryBoard by Brent Adams

North Carolina May Cap Workers' Compensation for Retirees

Margaret Embry — Thu, 28 May 2009 16:12:05 GMT

As of May 11, 2009, the North Carolina House Insurance Committee advanced a measure that would limit workers' compensation payments to injured workers about six years after they become eligible for Social Security. House Bill 1022, according to Insurance Journal

would curtail workers' compensation payments 300 weeks after a worker turns 65 or otherwise becomes eligible for Social Security retirement benefits, unless the worker wins an appeal before a state board.

While opponents argue that the bill would negatively impact senior citizens, supporters of the bill believe the measure would cut costs for employers and make North Carolina more competitive.

The bill has been sent to the House Judiciary Committee by the insurance panel for further review. A companion bill, Senate Bill 975, was filed on March 25, 2009 and is currently before the Senate Commerce Committee.

North Carolina is not the first state to debate this issue. The Utah Supreme Court recently declared a state law that limited workers' compensation payments for people over age 65 who can also collect Social Security retirement benefits unconstitutional.

Originally posted at InjuryBoard by Margaret Embry

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

Government Pays Disability For Back Condition

Brent Adams — Mon, 23 Feb 2009 16:54:02 GMT

Disabling back conditions enable a citizen to recover disability income from the Federal Government.

Approximately 80% of all adults will have a serious back problem during their life. Fortunately, most of these back problems are not disabling. However, if the back condition is such that one can no longer work and earn a living, disability payments can be received from the Social Security Administration.

Many disabling back conditions are not apparent to the casual observer. Most people who are disabled from a back problem can move about, drive a car and live a relatively normal life. However, these people are unable to work and hold down a job.

In determining whether a person is disabled as a result of back condition the Social Security Administration takes into account the persons education, job skills, age and other vocational factors which impact upon a persons ability to work. A person who has little education or job training and who has worked all of their life in jobs which required heavy lifting and heavy use of the back and body will be determined totally disabled. The same back condition, however, in a person with more education and better job skills may not be determined to be disabling. For instance, if an individual has job skills which will allow him to work at a desk and not be required to lift heavy objects, that person will not need a good strong back to the same extent as someone without highly advanced job skills. This person could work with a “bad back” even though the same back condition would disable someone whose entire job history involved heavy lifting.

Each claimant is individually evaluated taking all relevant factors into consideration. Therefore, the issue of whether a person is disabled from a back condition is very complex. It is many times difficult to predict whether a person with a back condition will be determined to be disabled such that they would be entitled to social security disability income.

Our right as working Americans to social security disability income protection is valuable. At Brent Adams and Associates we have helped hundreds of individuals obtain full social security disability benefits as a result of back conditions. Many of these people have been repeatedly turned down for benefits before they came to us.

Originally posted at InjuryBoard by Brent Adams

Duke University Pays $500,000 For Sexual Harassment

Brent Adams — Thu, 19 Feb 2009 09:45:00 GMT

The North Carolina Supreme Court has upheld a $500,000 jury verdict against Duke University for ratifying a worker’s sexual harassment of another employee.

According to the evidence at trial the plaintiff began working at a division of Duke University’s medical center in 1991. She claimed that a co-worker embarked on an eight-month campaign of harassing behavior which included inappropriate sexual touching, graphic drawings, and obscene language.

Duke University never imposed any significant discipline on the sexual harasser even after the plaintiff reported the problem to her supervisor and personnel officials. A division head stepped in later and transferred the plaintiff to another department in March of 1992.

The plaintiff offered proof at trial that as a result of the harassment she suffered a variety of ailments including crying spells, vomiting, headaches, nightmares, and insomnia. She was diagnosed with depression and post traumatic stress disorder.

The jury found that Dixon, the harasser, committed a battery upon the plaintiff and that the plaintiff was entitled to recover $100 for that battery. In addition, the jury found that Dixon initially caused the plaintiff severe emotional distress and that Duke University ratified Dixon’s actions. The jury awarded the plaintiff $100,000 in compensatory damages for her emotional distress claim. On the plaintiff’s punitive damages claim the jury required the defendant Dixon to pay $5,000 and required Duke University to pay the plaintiff $500,000 in punitive damages. Both defendants appealed and the issue of the punitive damages claim against Duke University was recently decided by the North Carolina Supreme Court.

Duke University argued that the punitive damages liability against it, as an employer could not exceed the punitive damages awarded against Dixon, the employee. The Supreme Court disagreed, writing “The objective of compensatory damages is to restore the plaintiff to his original condition or to make the plaintiff whole.” The amount of damages required to restore the plaintiff to his original condition or to make the plaintiff whole is the same, not withstanding ratification by the employer.

Punitive damages, on the other hand, are not necessarily intended to restore the plaintiff to his original condition or to make the plaintiff whole. It may take a different amount of money to deter or punish an employer-defendant like Duke than it would to deter an employee-defendant like Dixon. “An employer who has ratified an employee’s tortious conduct should not be allowed to use it’s employee-limited financial resources as a shield against additional punitive damages.”

The facts in this case occurred in 1992. If those same facts occurred today, the punitive damages against Duke University would have been limited to $300,300. Under a new law enacted by the General Assembly, punitive damages cannot exceed three times actual or compensatory damages or $250,000 whichever is greater.

In this case, the victim’s compensatory damages were $100,100.

Originally posted at InjuryBoard by Brent Adams

When You Are Disabled, Be Careful What You Say To The Insurance Claims Handler

Brent Adams — Mon, 30 Jun 2008 01:31:11 GMT

Eugene Andersons the dean of the claimant's disability insurance bar.

For many years, Mr. Anderson has fought diligently for the injured person and has won many battles on behalf of his clients against disability insurance companies who wrongfully deny benefits to their insureds.

In a recent article published for the insurance law section of the American Association for Justice, Mr. Anderson warned against the bias written into claims notes of conversations with disability insurance claimants. These claim notes are written to record conversations that disability insurance claims handlers have with disabled policy holders.

Mr. Anderson points out that while these notes may not always be totally false, they only tell half truths and are heavily slanted in the insurance company's favor by creating the false impression that the health condition of the disabled insured is much improved and that his disability has ended.

These claim notes, unfortunately, become part of the claims file which the courts construe as business records, giving them a sort of sacrosanct status.

The danger is that these notes may be viewed as the gospel truth by the court in determining whether a claimant is disabled.

That is why Mr. Anderson cautions the disabled insurer to be careful what they say to the claims handler and how their statements are phrased.

As an example, assume the policy holder tells the claims examiner that she has severe headaches in the morning. She says that she feels better once she gets up and about. The insurance company claims notes will reflect merely that the claimant feels better once she gets up and gets going in the morning. Thus, what appears on the claims notes for the court to see contain only half truths.

The woman may claim that she does not feel "up to" going to the doctor again. This will likely be recorded in the claims notes as "does not plan to seek further medical treatment." Her remark that she is too tired to go to the doctor becomes: "tired of going to the doctor." This statement again distorts the import and true meaning of the claimant's statements.

Mr. Anderson points out that insurance company claims personnel write notes that misconstrue the claimant's complaints and minimize their severity. Although the claims handler's notes in the claim files are not false, strictly speaking, they fail to give an accurate and complete picture of the claimant's health and well being. The notes accentuate the positive, but the positive is only half the truth.

Mr. Anderson notes that this accentuating the positive and downplaying or eliminating the negative may go on for a long time and in a variety of settings.

Insurance claim handler's conversations with the claimant's employer may skip over the negative in a way that portrays a disgruntled employee who should be busy at work, rather than at home, with complaints that others may perceive as minor aches and pains.

In later discussions with the claimant, the claims examiner reminds her of her earlier statements: "Didn't you tell us three months ago that you felt better in the morning?" The claimant, of course, does not recall this conversation that may have occurred a year earlier but responds "Yes." She does not challenge the previous conversation because she took no notes and does not remember. The claims examiner on the other hand, has notes which will be a prominent part of the court's file. Since the claims notes accentuate the positive and eliminated the negative that is all that the file now reflects.

This long series of conversations with the claims examiner in which he records only the positive and most favorable aspects of the claimant's health amounts to, in Mr. Anderson's word: "a long term cross–examination."

Eventually the claimant gives up and sues.

The insurance company then defends its denial of the claim on the basis of their claims record which was carefully crafted over a long period of time by a biased and nimble claims handler who has purposely distorted the record.

Before suit is even filed, the deck has been unfairly stacked against the claimant.

You should, therefore, be extremely careful what you say to the claims handler and realize that it is his job to build a claims file which will support a denial of your claim.

Originally posted at InjuryBoard by Brent Adams

Mortgage Lenders Order To Pay $99,000,000.00 In Punitive Damages

Brent Adams — Sun, 11 May 2008 14:19:28 GMT

Missouri residents who were charged illegal fees for second mortgages have been awarded $99,000,000.00 in punitive damages against three mortgage lenders for their misconduct.

The jury, sitting in state court in Jackson County, Missouri had previously found that these defendants owed the plaintiffs 5.1 million dollars in actual damages. The three defendants are Residential Funding Company LLC, Household Finance Corporation III and Wachovia Equity Servicing LLC.

The actual damages suffered by the plaintiffs as a result of the illegal conduct of the three mortgage companies occurred because the original lender had charged the victims excessive interest and illegal charges for origination fees, loan discount fees, underwriting fees, processing fees, document preparation fees, and legal fees.

The original lender who charged the illegal and excessive fees was Mortgage Capital Resources Corp.

The three mortgage companies listed above purchased these tainted loans from Mortgage Capital Resources Corp which is no longer in business. The former chief executive of the now defunct mortgage company is in prison for mortgage fraud.

The three mortgage companies who purchased the tainted loans defended the suit based upon their contention that they were entitled to rely upon assurances from Mortgage Capital Resources Corp that the loans fully complied with state law.

After the jury awarded 5.1 million in actual damages, in the first phase of the trial, came back to court to decide the issue of punitive damages in the second phase of the trial.

The State of Missouri has a set of laws known as the Second Mortgage Loan Act. Under this Act, many of the fees charged by the lenders were illegal.

The lawyers for the plaintiffs in this class action suit proved that the three mortgage companies knew of the lender's fraudulent conduct and "stepped into its shoes".

The case had been certified as a class action. Missouri residents who obtained second mortgages from Mortgage Capital Resources will be eligible to share in the damage Award. It is estimated that a total of 324 Missourians will qualify as members of the class.

Originally posted at InjuryBoard by Brent Adams

Kill Old People Cheap Act of 2008

Brent Adams — Fri, 09 May 2008 09:59:54 GMT

Nursing Homes, along with their politically active PAAC’s have funneled huge sums of money to Tennessee legislators in an effort to support nursing home supported legislation which would placestrict limits and hurdles on those who would sue nursing homes as a result of the negligence and abuse of their elderly patients.

It is hard to imagine how legislators voted into office by the general public would even consider supporting legislation which would take away longstanding rights to victims of nursing home negligence and abuse to make a claim in court to remedy these wrongs.

The only beneficiaries of this legislation are the large corporations which own nursing homes throughout Tennessee. Those that will be hurt by this legislation are residents of nursing homes who will have limited abilities to fight abuse and neglect in nursing homes if this draconian legislation is passed.

Who is the constituency of these legislators who favor such legislation? Certainly not the voting public in their districts. Although these corporations do not have the right to vote in their district, they do have the ability to pour multiple hundreds of thousands of dollars into the coffers of legislators who are willing to do the bidding for large corporations who own nursing homes and for special interest groups who favor the legislation to take away the rights of people.

The lackeys controlled by nursing homes in Tennessee who have introduced this legislation have the gall to name this proposed legislation: “The Nursing Home Patient Protection Act of 2008”. With this ridiculous nomenclature, these nursing home lackeys hope to obscure the fact that the bill is anything but a patient protection act. On the contrary, it removes from nursing home residents the little protection they have under the law as it is now.

Cook County, Tennessee Representative Henry Fincher who heads a key subcommittee in the Tennessee legislature has correctly labeled this bill the “Kill Old People Cheap Act of 2008”.

Senate sponsor of the bill, Jim Tracey, a Republican, lamely argues that: “If we can cut the cost of insurance down for nursing homes, they can have more nurses, better patient care.” If he really believes this ridiculous statement, it shows what a simpleton Senator Tracey really is. Does it not occur to him that the way nursing homes can avoid lawsuits is simply to give good patient care. Who could argue against a nursing home giving good patient care? However, if the right to sue nursing homes is restricted, the incentive for nursing homes to “have more nurses, better patient care” will be severely limited.

Among the provisions of this legislation is to require nursing home residents to sign away their right to a trial by jury and to force them to agree to have their claims arbitrated. Additionally, the bill would cap noneconomic damages at $300,000.00 and would reduce the amount a patient could receive in punitive damages, no matter how egregious the conduct of the nursing home which leads to the claim.

In the front-page story which appears in the April 6, 2008 The Tennessean the headline reads: “Nursing homes want to limit lawsuits”. Of course, they do, what special interest group would not like to limit lawsuits against themselves. By doing so, they would become completely unaccountable for their conduct.

Even though nursing homes want to limit lawsuits, they should not have special privileges or immunities that other individuals and corporations do not have. We all have to be accountable for our negligence and wrongdoing. Nursing homes feel that they should not have to follow the laws that the rest of us follow.

Although there currently are no such proposals in North Carolina, if the Tennessee legislation passes, you can be sure that the nursing home lobby will open up their checkbooks to North Carolina legislators and urge them to pass similar legislation. All North Carolina citizens should vigorously oppose such efforts.

Originally posted at InjuryBoard by Brent Adams

Social Security Disability Insurance Benefits Available To Diabetes Sufferers

Brent Adams — Wed, 23 Apr 2008 00:35:47 GMT

Social Security disability insurance benefits are available to citizens who become disabled as a result of diabetes, a common condition which afflicts millions of Americans.

To receive benefits. diabetes sufferers must prove that as a result of their diabetes, they are unable to hold down any employment available in the market place.

The disabling condition of diabetes happens when the level of your blood sugar rises to an excessive level because not enough of the hormone insulin is produced by your body, or the insulin your body produces doesn’t work correctly.

Insulin, which is produced by the pancreas, helps the cells of the body to absorb sugars produced by food.

Courtesy of the U.S. Department of Health and Human Services, here are some typical warning signs of the disabling condition of diabetes:

· Excessive thirst and urination.

· Frequent feelings of extreme hunger.

· Unexplained weight loss.

· Frequent infections or wounds that are slow to heal.

· Blurry vision

· Feelings of numbness or tingling in the hands and feet.

· Skin that is dry and itchy.

If you experience these symptoms, you should visit your doctor to be tested for diabetes, especially if you are at the age of 45 or older.

Originally posted at InjuryBoard by Brent Adams

Tire Manufacturer Fights Wide Access To Records In Defective Tire Suit

Brent Adams — Tue, 25 Mar 2008 02:45:10 GMT

Cooper Tire Company has appealed to the 10th U. S. Circuit Court Of Appeals to fight an order of the lower federal court to produce records relating to the manufacture of tires.

The families of several students of Utah State who died or received personal injuries from a van crash in 2005 have taken their lawsuit, which claims that the crash was caused by defective tires, to a federal court in hopes of catching the internal files of the tire manufacturer.

In January, a Utah magistrate judge rule that scores of documents the Cooper Rubber & Tire Company held could be reviewed by the plaintiffs in their suit against the company.

According to Cooper's attorneys, the scope of the discovery order was "unprecedented" and will force proprietary information, which includes data on tires that are not part of the suit, to be revealed by the company. They told judges that it would require thousands, possibly even millions, of documents from the 89-year history of the company to be produced.

The lawyers for the plaintiffs argued that wide access to the documents was necessary for proof that Cooper either knew or should have known that the tires on the van, as well as similar models, had design flaws. They say the defendants' argument is an attempt to "confuse everybody" through the implication that they want all of the company's files, even though the 1980s would be the earliest period they may need.

The students that were injured and the families of all but one of the students and instructor who died filed suit against Copper and DaimlerChrysler Corp., the manufacturer of the van. Last December, Chrysler and the plaintiffs settled out of court for an undisclosed amount, though it is still awaiting approval from a judge.

According to the suit, the tired had a defect which caused the tread to separate from the tire, which caused the fatal crash.

The outcome of this case will be closely watched by products liability lawyers all over the country because
it is unusual for the courts to allow such extensive discovery.

Originally posted at InjuryBoard by Brent Adams