April 16, 2008

Insured Loses Katrina Claim

The Louisiana Supreme Court has ruled that a flood exclusion in an "all-risk" policy barred a claim by the owner of an apartment building damaged by flood waters during Hurricane Katrina.

The owner lived in the five-unit building when four feet of water entered the basement during the hurricane. He had a commercial "all-risk" policy and submitted a claim for the damage. An insurer's inspector claimed most of the damage was due to poor maintenance and flooding.

The insurer paid only $230 on the claim because the policy excluded coverage for damage caused by various forms of water, including "flood." But the policy did not specifically define the word "flood."

The owner sued claiming the policy's failure to distinguish between naturally-caused flooding and flooding resulting from the failure of man-made structures like those protecting New Orleans rendered the exclusion too ambiguous to enforce.

But the court rejected that argument.

April 3, 2008

Federal Agencies Join Forces Against Consumers

If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards. The Consumer Product Safety Commission (CPSC) says you can't sue a mattress maker if your mattress bursts into flame despite meeting CPSC standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration (NHTSA) proposals for stronger roofs.

Consumer advocates call this "silent tort reform." It is part of the tension between state and federal law that has existed since the nation's founding. If there is a conflict, state laws must yield under Article 6 of the Constitution. But where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. Big business and insurance companies are now using this to avoid responsibility for negligent actions and omissions at the expense of innocent consumers.

Under the Bush administration, a developing body of judicial opinion could place new limits on the rights of those who buy or use products. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

Federal agencies are increasingly promulgating rules favorable to big business and insurance companies at the expense of ordinary citizens. They then assert their rules override state tort and product-liability laws. In a novel approach, these agencies are claiming that the preemptive effect is based on statements in the introductions to their rules, not the rules themselves.

The practice varies by agency but is spreading. It delights corporate defense lawyers. The argument is that federal agencies are the absolute rule-makers.

Actor Dennis Quaid and his wife are preparing to fight such a contention — this one made by the FDA — in a suit accusing Deerfield, Ill.-based Baxter Healthcare Corp. of putting vastly different doses of a blood-thinner into confusingly similar packages. The Quaids went to court in November 2007, after their infant twins were given 1,000 times more heparin than babies should get. Their suit contends Baxter should have changed the packaging after three babies died in 2006 at an Indianapolis hospital.

January 17, 2008

Having Full Insurance Coverage Does Not Mean You Have Good Coverage

Serious injury lawyers like ourselves often hear clients involved in serious accidents tell us that they had “full coverage” at the time of the accident and that they therefore have “excellent” insurance protection. The vast majority of the time, this is not the case at all. This is because the term “full coverage” means that one has the coverage one is minimally required by law to possess. Full coverage does not mean adequate coverage nor does it mean excellent coverage. It means minimally required coverage required by law.

Here in Georgia, in order to operate an automobile, the driver must have a minimum of $25,000.00 in liability coverage protection for any one person, $50,000.00 per accident. What this means is that if someone runs a stop sign and seriously injuries another, he has “full coverage” if he has $25,000.00 in liability insurance coverage for an innocent third-party victim, $50,000.00 for all victims in a single accident. Anyone familiar with hospital and medical costs today knows that any serious injury can hardly be compensated for $25,000.00. Indeed, any serious injury usually involves medical bills far in excess of $25,000.00.

It is heartbreaking for our lawyers to see cases where the at fault driver has “full coverage” and our clients are indeed seriously injured, sometimes with amputations, permanent disabilities and death. In those cases involving death of a family member, $25,000.00 could never adequately compensate the survivors, much less address issues such as medical expenses, funeral bills, lost wages and the like. And yet, we hear over and over again from people inexperienced in this area that they have “full coverage” thereby deluding themselves into believing that they have adequate insurance coverage.

To truly have adequate insurance coverage, one needs to have excellent uninsured motorist coverage. The at fault driver may have “full coverage” that is the minimum amounts required by law, but to have excellent coverage one must protect themselves with uninsured/underinsured insurance coverage. If the at fault driver runs the stop sign and injuries you but only has the minimum coverage required by law ($25,000.00 per person, $50,000.00 per accident), you can protect yourself through the purchase of uninsured or underinsured motorist coverage in any amount desired. One can purchase $100,000.00, $500,000.00 or $5 million. In the case where the at fault driver causes serious injury or death, the higher “underinsured” limits will provide relief whereas the minimally required “full coverage” will provide virtually no relief at all.

We continue to urge all Georgia citizens to carefully review their automobile insurance policies. What protection do you have if you are seriously injured? If you do not have uninsured/underinsured insurance protection, you are at the mercy of the at fault driver. If he/she has “full coverage,” you are seriously injured, and you do not have uninsured/underinsured coverage under your own policy, you may be in more trouble than you know.

January 11, 2008

State Farm Held Liable

Our serious injury attorneys frequently see cases in which insurance companies refuse to pay valid claims and then turn on their insureds accusing them of fraud.

Last Tuesday, the Western Missouri Court of Appeals upheld a jury verdict of nearly $8.5 million against State Farm Mutual Automobile Insurance Company for breach of contract claims and malicious prosecution against a claim holder. The case originated in 1997 when Jennie Hampton reported that her vehicle had been stolen and filed a claim with her insurer, State Farm. Several days later, the car was found abandoned and burned.

State Farm allegedly investigated the claim and denied it on the grounds that Hampton had listed her engine as being in excellent condition when State Farm contended that the car had suffered an engine failure. The Company further alleged that Hampton and an acquaintance towed the car after the engine failure and burned the vehicle. State Farm took their claims to the district attorney’s office and allegedly pressured prosecutors there to file insurance fraud criminal charges against Hampton and the acquaintance.

The criminal charges were tried and Hampton and the acquaintance were acquitted.

In a 3 - 0 ruling, the Appellate Court affirmed the judgement against State Farm holding that State Farm not only improperly denied the claim but also pressured the prosecutors to file criminal charges against Hampton.


December 26, 2007

Insurance Bad Faith And The Death Of A Teenager

As serious injury attorneys we frequently see cases in which insurance companies refuse to pay for treatment for their insureds, knowing that any appeal by the insured will take months, if not years, and that there is no legal remedy which can force the companies to offer timely treatment. In fact, in many cases the only legal remedy is that the company will be required to pay what they already owe, with no allowance for attorney fees and expenses. Unfortunately, in many cases the remedy comes too late.

An article was just published describing how a 17-year old died just hours after her health insurance company reversed its decision not to pay for a liver transplant that doctors said the girl needed. Nataline Sarkisyan died last Thursday night at University of California, Los Angeles Medical Center. Nataline had been battling leukemia and received a bone marrow transplant from her brother. She developed a complication, however, that caused her liver to fail.

Doctors at UCLA determined she needed a transplant. They sent a letter to CIGNA Healthcare on Dec. 11. requesting approval for the procedure. Cigna denied payment for the transplant. Last Thursday, about 150 teenagers and nurses protested outside a California CIGNA office. The company then reversed its decision and said it would approve the transplant. But, it was too late.

Nataline’s mother was quoted as saying that CIGNA was responsible for her daughter’s death. CIGNA issued a press release stating that: "Our hearts go out to Nataline and her family, as they endure this terrible ordeal."
This rings hollow, as CIGNA has just saved thousands of dollars to increase its profits.

December 23, 2007

Bad Faith Insurance Claims

Bad faith insurance claims have always been difficult because the insurance industry has routinely been able to hide behind restrictive laws designed to protect them from even egregious conduct. However, a case pending in Missouri may change this situation.

A Jackson county Missouri trial judge issued an order directing Allstate Insurance Company to produce records which the Plaintiff lawyers allege show how Allstate set up a claims payment system in the 1990s that shortchanges clients while earning huge profits. Despite the judges directive, Allstate refused, and drew a $25,000 per day fine from the judge. The fine, which began in mid-September is now approximately $2.4 million.
Last month, the Missouri Supreme Court ordered the documents produced, but Allstate, has stated it will not produce these records for public view no matter how much the court fines it.

Allstate contends the documents are trade secrets used to create company policies, methods and claims procedures.

The case stems from a car wreck seven years ago. Allstate’s insured struck the rear of a truck and severely injured the driver. He is suing Allstate for bad faith for refusing to pay the claim for years. The case is still pending.