|
Scott Stroud recently wrote an interesting post about the effects the Gulf Oil Spill may have on tort reform. He discusses the fact that the current cap on damages caused by Oil drillers will not cover the damages caused by BP in the Gulf of Mexico. He then points out that many of the same politicians that have used the mantra of personal responsibility to pass caps on damages are now claiming that the caps on damages in this case should be removed because BP has to be held personally accountable. Hopefully Mr. Stoud is right about the effect of the gulf oil spill has on the tort reform argument.
My experience as a personal injury attorney in Tampa lead me to conclude long ago that tort reformers have the personal responsibility argument backwards. They claim that caps on damages are necessary because personal injury victims do not want to take responsibility for what happened to them. Of course they don't. They did not cause the harm so why should they pay for it.
The goal of personal injury law is to hold wrongdoers accountable for the damage they have caused. In truth, the goal of Tort reform and caps on damages is exactly the opposite. It is nothing more than an attempt to shelter the one that caused the harm from paying for the true cost of the harm they have caused. It is unfortunate that it took something like the BP oil spill to begin the process of waking the public.
Most medical doctors do great things. Whether they are saving peoples' lives or proscribing medicine for the common cold. Either way, they are helping people. However, like all professions, there are some that do not do the right thing. Sometimes doctors have lapses in judgment. Sometimes they do not have the training or skill to be providing the kind of care they have chosen to provide, and sometimes the profit motive causes them to lose track of why they became doctors in the first place.
A perfect example involves the arrest of Tampa medical Doctor John Mubang in 2008 for trafficking in narcotics and proscribing controlled substances without medical necessity. According to an article in the St. Petersburg Times written by Alexandra Zayas and Letitia Stein, Dr. Mubang runs a pain management clinic in Tampa. He is accused of prescribing powerful pain medicines to anyone that was willing to pay regardless of whether they were in pain. If true, he was basically using his medical degree to legitimize acting as a drug dealer. At least one of his patients has died of an overdose.
Society does not and should not blame the entire medical profession for the actions of doctors accused of things like Dr. Mubang. Of course, the same should hold true for all professions. In other words, no profession should be condemned as a whole just because some in the profession do bad things.
Unfortunately, there are many in the medical profession, politics, and the corporate world that do not agree when it comes to personal injury lawyers. They condemn all personal injury attorneys for the bad things that some personal injury lawyers do. Many of them condemn us because it is our job to hold them accountable. They see themselves as doing no wrong. Therefore, in their eyes the problem must be that those that want to hold them accountable are bad people. In their eyes the answer is tort reform.
The truth is that personal injury attorneys are not bad people. Our goal is to help society by holding wrongdoers financially accountable for the harm they cause. Sometimes, some of us fall short. Just like doctors, some lawyers may have lapses in judgment; some lawyers may not have the training or skill to be handling a particular case; and the profit motive may cause some lawyers to lose track of why they became personal injury lawyers in the first place. When this happens, the individual lawyers should be held accountable. But just like with doctors, the entire personal injury profession should not be blamed for the actions of a few.
Personal injury lawyers are considered by a large segment of the population to be causing harm to society. No matter where you look, it is hard not to find some sort of criticism of the personal injury profession. Some call us ambulance chasers. Others call us parasites. The Republican Party blames us for the high cost of health care. Big business blames us for the high cost of consumer products. The liability insurance industry has labeled us domestic terrorists.
If the portrayal of personal injury attorneys that has been spun by Republicans, the health care industry, big business, and the liability insurance industry is true, why would anyone want to become one? These entities portray us to be like the wicked witch of the west in the Wizard of Oz. Born of pure evil. We apparently swoop down on our broom to capture unsuspecting clients (Dorothy and Toto) and use them in their time of grief to blackmail productive members of society (the wizard and the community of Oz) into paying us exorbitant sums of money. If they refuse our extortion, we will force them to endure the torture of a jury trial where we con handpicked members of the general public that are selected as jurors (those same unsuspecting members of the community of OZ) into awarding even more money than we originally tried to extort.
For those of you that have seen the play "Wicked", the analogy of the Wicked Witch may not actually be wrong. It turns out that the Wizard of Oz was the evil one. He was harming the animals of Oz and covering up his actions. The Wicked Witch was actually good. She resisted the corrupting power of the Wizard and was trying to save the animals. As a result, the Wizard used his power and influence to portray the Wicked Witch to the public as evil.
Every once in a while, however, an event comes along that is so big the propaganda machine cannot cover it up. When this happens, the truth shines through and the public can see that many personal injury lawyers are actually helping society by exposing corporate wrongdoing and obtaining just compensation for their clients. The recent scandal surrounding the Toyota defective product recalls of their automobiles is one such event.
For years, Toyota has been denying that their vehicles suffer from a defect that causes sudden acceleration. Undaunted, personal injury lawyers relentlessly pursued Toyota for just compensation for their injured clients. Like the Wizard of Oz, Toyota successfully branded itself as good while it branded plaintiffs' attorneys and their clients as evil. Slowly but surely, plaintiffs lawyers assembled expert testimony to uncover the cause of the problem and convinced courts to disclose evidence implicating Toyota. As a result, the momentum has shifted. Recent disclosures by a corporate insider, coupled with the media finally focusing its attention on recent episodes of Toyota vehicles involved in sudden acceleration causing injury and death, have brought the truth to light. It appears that Toyota may have been covering up the sudden acceleration problem to avoid a recall. If true, its actions in trying to protect its reputation and profits caused many unnecessary injuries and deaths.
The Toyota example is just one of many that demonstrate the stereotype of personal injury attorneys is not accurate. The truth is that we are no different than any other profession. Most of us are motivated to help our clients and have a positive impact on society. A few are motivated by money and power. Political and corporate interests use the actions of the few to condemn the rest of us.
Insurance companies often ask people involved in Florida personal injury accidents to give a recorded statement. There are times when it makes sense to do so. There are also times when a recorded statement should not be given. Click on this link regarding giving a recorded statement in a Florida personal injury case to watch a video I prepared discussing the subject.
One of the most common questions a personal injury attorney hears is "How long will it take to resolve my personal inury case?" I answer this question in a video on my law firm website. To view the video, click on this personal injury resolution video link. The video describes the various factors a personal injury lawyer takes into consideration to answer this question.
When an insurance company or defendant in a personal injury case has questions about the cause or extent of a personal injury client's injuries, they have the right under the law to send the person to the doctor of their choosing for examination. The exam is commonly referred to as an independent medical exam or "IME. The name became popular because the Doctor is supposed to provide an independent opinion about the person's injuries. The truth is there is nothing independent about the opinion. In fact, in an effort to show the clear bias of the opinions, personal injury lawyers often refer to them as defense medical exams.
The bias occurs because the insurance companies search out doctors that they know in advance are more likely to conclude the injuries were not caused by the event claimed by the injured party. In addition, if the doctor sides with the injured person he or she will not get any repeat business. The result is that the overwhelming majority of IME doctors find a way to side with the insurance company. The insurance company then uses the doctors conclusions to deny benefits or convince a jury that a personal injury plaintiff does not deserve compensation. A great article that exposes the bias can be found at the New York Times website.
When a jury awards a substantial verdict to someone injured as the result of someone else's negligence, tort reformers refer to the outcome as jackpot justice. The reference is a purposefully demeaning comparison between the juries attempt to make up for the injured persons losses and winning a jackpot in a game of chance. Personal injury attorneys know there are two types of people that promote this crude comparison. The first are those with a political agenda to increase corporate profits by eliminating personal injury lawsuits altogether. These people create false and misleading statistics to support their conclusions. The second type are those that truly believe that compensating someone for their injuries is harmful to society. Their beliefs are usually based on blind faith that the false and misleading statistics created by those with a political agenda are true. Fortunately, many in the second group will change their minds about the benefits to society of personal injury lawsuits when they are provided with the true facts.
The bad news is that those in corporate America with a political agenda to prevent juries from making up for the harms caused by negligence have far more money to spend peddling their propaganda. The public relations budgets of the fortune 500 corporations and their support organizations dwarf the public relations budgets of personal injury law firms and their support organizations.
The good news is that it takes far less money to convince people of the truth than it does to perpetuate a lie. If those of us that believe in the jury system continue to speak out, our voices will be heard over the noise of tort reform because we speak the truth. For more information about the myths spread by tort reformers, go to the American Association for Justice Website.
Scott Distasio
Clearwater Personal Injury Attorney
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
Tort Reformers claim that our country's economy is crumbling because of out of control personal injury settlements and jury verdicts that include a recovery for pain and suffering damages. If you listen to many politicians discussing the subject, you will come away believing that it is very easy to receive pain and suffering damages. At least in car accident cases in Florida, the truth is just the opposite.
As a Tampa car accident lawyer I am familiar with the Florida laws that govern car accident cases. One of those laws, section 627.737 Florida Statutes, bars a plaintiff in most car accident cases from receiving pain and suffering damages unless they can prove to a jury one of the following:
(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death.
Because all of these conditions require proving a permanent injury, Florida attorneys often refer to this statute as creating a permanency threshold. In the overwhelming number of auto accident cases tried to a jury in Florida, the jury concludes the plaintiff did not suffer a permanent injury based on the above criteria and therefore does not award pain and suffering damages.
Scott Distasio
Clearwater Car Accident Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICE: TAMPA
888-595-0022
Tort reformers often claim that personal injury lawsuits are a drain on the economy. In order to support their inaccurate claims, they point to what they perceive are the negative effects on the economy. However, they purposely leave out all the positive effects. To make matters worse, the media often publishes these bogus tort reform propaganda studies without analyzing the data to ensure the conclusions are accurate. The result is a misinformed public that actively supports limiting personal injury lawsuits that are actually beneficial to society as a whole.
For example, a previous post discussed the fact that contrary to public opinion, personal injury claims actually reduce the cost of health care because successful personal injury victims must pay back health insurance companies that paid for care caused by the negligent party. Another previous post discussed the fact that personal injury claims often act as a vehicle to provide health care to an uninsured person injured as a result of someone else's negligence. The public benefits because the care is paid for by the negligent wrongdoer instead of Medicaid.
Successful personal injury claims also benefit society when the injured person receives medical care through a public program like Medicare or Medicaid. Society benefits because the injured person is required to use part of the funds received from the negligent party to pay back Medicare and Medicaid for the care they received. The money flowing back to these government programs helps reduce their costs.
The result is same whether the claim involves an auto accident, a medical malpractice case, wrongful death, or a slip and fall. No matter what type of personal injury claim is made, the personal injury lawyer actually acts as the government's collection attorney. In fact, a lawyer that either fails to notify the government of its right to receive the money or fails to ensure the money is returned to the government can be prosecuted criminally.
Scott Distasio
Tampa Pesonal Injury Attorney
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
Most people that consider themselves conservatives believe that personal injury lawsuits are a drain on society because they drive up the cost of health insurance. In fact, this common misperception is often repeated by politicians looking for campaign contributions and or votes. As a Tampa personal injury attorney, my experience has been exactly the opposite. For example, in a previous post, I wrote in detail about how personal injury plaintiffs are required to pay back their private health insurance carriers for treatment incurred as a result of their injury when a favorable settlement or verdict is achieved. Personal injury plaintiffs also have to pay back Workers compensation insurance, Medicare and Medicaid. The net effect is to reduce the cost of health care and not increase it.
However, the most under reported positive effect personal injury lawyers in Tampa and throughout the country have on society involves claims made by uninsured plaintiffs. When an uninsured person is injured as a result of another person's negligence they often cannot get the health care they need. If the personal injury claim has merit, a good personal injury lawyer can arrange for such a client to get health care without paying for the services up front. The health care provider, lawyer, and client sign a document called a letter of protection. The health care provider agrees to provide the health care immediately and wait for payment until the personal injury lawsuit is resolved. The lawyer and the client agree that the health care provider will receive payment from the settlement.
The positive effect on society that is created when a personal injury attorney can arrange for an uninsured client to obtain healthcare on a letter of protection is often much greater than helping just one person. For example, when the uninsured injured person is unable to work because of their injuries they cannot provide for their family and they can become a drain on society. When they are able to obtain the medical care they need they can often go back to work. All of society benefits because they are no longer a drain on society.
Scott Distasio
Tampa personal injury lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
According to a web posting at http://www.news-leader.com/apps/pbcs.dll/article?AID=2008806190360 The Bush administration announced the federal government will put in place a nursing home rating system by the end of the year that will be accessable to consumers from a yet to be announced government website. According to Kerry Weems, acting administrator for the Centers for Medicare and Medicaid Services, The fact a home has a lower rating will likely put them on the path to improvement," because "I don't think we're going to see many people who are very anxious to put a loved one in a one-star home."
The rating system is a good first start. However, it is either very nieve or very deceptive on the part of Mr. Weems to suggest that the rating system will have a very large impact on the average member of the public's decision regarding which nursing home facility to place a loved one. The truth is that the overwelming majority of families trying to place a loved one will never know the rating system or a website ranking nursing homes exists. In fact, Florida has had such a website to rate its nursing homes for many years. It can be found at http://ahcaxnet.fdhc.state.fl.us/nhcguide/. The Florida nursing homes that rank poorly continue to have high occupancy rates despite the low ranking. For example, a nursing home called Rehabilitation And HealthCare Center Of Tampa received an overall rating of one star out of 5 for its latest survey performed on february 7, 2008. However, it had an 80.05% occupancy rate.
While low rankings in performance are not publicized enough to effect consumer opinions, the information should still be gathered and posted. The real power of the ranking system is that it creates a framework to punish poor performers. Punishment can occur as the result of a nursing home neglect lawyer bringing a personal injury lawsuit when the rankings are admitted into evidence to give the jury an idea of the conditions of the facility. Unfortunately, tort reform in the state of Florida has drastically reduced the number of such lawsuits and therefore their deterent effect created by them. The rankings can also be used by the government to sanction the nursing home and or revoke its license. The real question is whether the federal or state government will use the information for that purpose.
Scott Distasio
Tampa nursing home abuse lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
Tampa personal injury attorney
An earlier posting entitled "Semi Trucks Monitored in Tampa Bay" mentioned that on June 4, 2008 a man drove his automobile into a Semi Tractor Truck on US 19 at the Countryside Ford Dealership in Clearwater Florida. It turns out the man was 77 year old George W. Sturm. He died six days later from his injuries.
Mr. Sturm was driving Northbound on US 19 at 4:30 am as he approached the Ford Dealership. The driver of the Semi Truck was apparently backing into the dealership from US 19 when Mr. Sturm slammed into the side of the truck. According to www.tampabays10.com, the truck was blocking all northbound lanes.
In some states, the fact that Mr. Sturm may have been comparatively negligent in not noticing the truck in front of him might bar his Estate from making a recovery in a personal injury lawsuit. However, Florida follows the doctrine of comparative negligence. That means if Mr. Strum's Estate hired a Clearwater truck accident lawyer to pursue a personal injury claim, a jury would assess whether or not he was negligent in failing to recognize the truck was in front of him and whether or not the truck driver was negligent in taking up all northbound lanes of traffic in the dark. The jury would then assign a percentage of liability to each party if any. It is unclear at this time if Mr. Strum's Estate will pursue such a claim on his behalf.
Scott Distasio
Clearwater Car accident attorney
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
Tampa Auto Accident Lawyer
Most semi truck drivers are safe drivers just trying to make a living. However, the shear size of their rigs makes their vehicles extremely dangerous when they get into an accident. For example, the Northbound lanes of US 19 at sunset road in Clearwater Florida were closed for several hours today after a car crashed into a semi tractor trailor. The impact was so severe, the car was wedged under the semi. The driver of the car was taken by Bayflight helicoptor to BayFront Medical Center and is currently listed in serious condition. There is no word on whether the driver of the semi truck caused the accident.
In an effort to try to prevent accidents like the one above, authorities have anounced they are placing an emphasis in Tampa Bay on keeping the big rigs safe. According to an article posted June 3, 2008 on http://www.myfoxtampabay.com, inspections sponsored by the Commercial Vehicle Safety Alliance have begun in the bay area. Inspectors will be conducting roadchecks to look for all types of vehicle problems including bad breaks, bald tires, and stearing troubles. In addition, inspectors will be making sure drivers are wearing their seatbelts, have all the appropriate paper work up to date, and have not been driving longer than the manditory maximum number of hours per day.
In addition to random stops, inspecpection sites have been set up at the Interstate 4 weigh station, the Port of Tampa area, and along U.S. 98 west of Brooksville.
Scott Distasio
Clearwater Auto accident Attorney
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022
Tampa personal injury lawyer
According to an article posted at TampaBays10.com on May 31, 2008, Jamaal Miles of Pinellas Point Florida was driving west on the Tom Stuart Causeway Bridge in St. Petersburg Florida when he lost control of his car. As a result, his vehicle crossed the median and crashed into an eastbound automobile driven by Amanda Anderson of Seminole Florida. The bridge was apparently closed to all traffic for two hours after the accident. Miles, his passenger Fredrick Wade, Anderson, and her passenger Charles Mosley were all taken to St. Petersburg area hospitals.
According to the Pinellas County Sheriffs office, Miles was cited for failure to use due care, no valid driver's license, no proof of insurance, and not wearing his seat belt. If in fact it turns out that Miles did not have insurance, the others involved in the car accident will not be able to receive compensation for their injuries unless they have purchased Uninsured Underinsured Motorist Coverage (UM). Most people do not even know what UM coverage is or why they need it.
UM coverage is insurance coverage you buy to cover you when someone other than you causes the auto accident and that person either does not have insurance or does not have enough insurance to fully compensate you. Insurance companies rarely encourage you to buy this coverage because they cannot accurately predict the risk associated with a driver they do not know that may cause an accident you are in sometime in the future.
While UM coverage is a bad bet for the insurance company, it is a good idea for you. Some comentators have estimated that upwards of 25% to 33% of all drivers in Florida have no bodily injury insurance to compensate people when they cause an accident. In otherwards, if you are in a car accident caused by someone else, there is upwards of a 33% chance that person does not have insurance to adequatley compensate you. With odds like that, it is worth the extra money to purchase UM coverage to protect you.
Scott Distasio
St. Petersburg Auto Accident Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
1-888-595-0022
According to an article and video by Tammie Fields posted on tampabays10.com, on May 20, 2008 Rafael Grau of Davenport Florida was arrested and charged with a scheme to defraud. He and Geraldo Larracuente, also of Davenport were allegedly staging fake auto accidents for money. All of the people involved in the staged auto accidents were allegedly treated at Providence Chiropractic located at 2727 Martin Luther King Boulevard in Tampa. Insurance companies were then charged for medical treatment that was apparently unnecessary and may not have even been performed.
Insurance fraud schemes like this one are disturbing for many reasons. The most obvious are the fact that it is dishonest, illegal, and just plain wrong. Furthermore, it drives up the cost of insurance for the rest of us. However, the increased cost of insurance is just the tip of the iceburg. The hidden costs to society created by such crimes can never really be measured.
For example, as people read about this crime it reinforces stereotypes about chropractic care that are often not true. There are many hardworking honest chiropractors that provide a legitimate service to their patients. Crimes such as this one make people question the integrity of the legitimate health care providers that are truely helping people recover from real auto accident injuries.
Staged car accidents also reinforce steretypes about car accident attorneys that are not true. Every profession has dishonesty. In recent years, politicians and corporate lobbyists have used the news media and events like this one to portray the entire profession of personal injury lawyers as criminals. The truth is that the overwhelming majority of auto accident lawyers are honest hard working professionals that are trying to hold wrongdoers accountable and help injured people get financial reimbursement for their losses.
Of course the biggest cost to society from crimes such as this one takes place because of the stereotype it reinforces regarding the types of people that make personal injury auto accident claims. Like the hard working health care professionals and lawyers that try to help them, the overwhelming majority of people that make auto accident personal injury claims are honest. They have been in real accidents and have received real injuries. Crimes such as this one, however, make the people that judge them sceptical. Insurance companies offer people injured in auto accidents less money than their claims are worth because the insurance company either does not believe the person is injured or, more likely, the insurance company knows its lawyers can use events like this one to convince a jury that the person is not injured.
If you doubt that insurance companies purposely take advantage of these stereotypes then ask yourself why they spend so much money on advertisements aimed at publicizing crimes like the one above. Every ligitimate study of the subject has demonstrated that the percentage of fake injury claims is so small it is statistically insignificant. Why then do we see television commercials of fraud investigators from certain insurance companies bosting about how many millions of dollars they have saved the company by catching people faking their injuries. It is certainly not done to convince the viewer to buy that companies insurance.
The real reason such advertising is done is to reinforce the stereotype. If you doubt what I am saying, go down to the courthouse and view most any auto accident personal injury trial. You will see a carefully orchestrated show put on by the defense lawyer to convince the jury the plaintiff was not hurt in the accident. The lawyer cannot direcly accuse the plaintiff of faking unless there is real evidence of it. That is very rare. Instead the defense lawyer uses questioning about the biases of the plaintiff's treating physicians; the plaintiff's work history; the physical activities of the plainfiff before the accident; and the plaintiff's ifestyle before the accident to imply the injuries are not real or were caused by one of these things. The overwelming majority of such cases end with the jury concluding the plaintiff did not receive a permenant injury in the accident even though they did.
Scott Distasio
Tampa Auto Accident Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
888-595-0022
Tampa personal injury lawyer
Kevin McCarty, Florida's Insurance Commissioner, has been locked in what seemed to be a never ending battle with Allstate Insurance Company to force the company to comply with his subpeona for documents. To read more you can review my previous post. The fight started last year when the state began looking into why insurance companies in Florida were asking for rate increases of close to 42%. As part of the investigation McCarty requested that Allstate turn over documents that would allow his office to independently assess the need for its requested increase. Although Allstate has turned over upwards of 550,000.00 pages of documents, Commissioner McCarty has concluded the documents produced were not all the documents he requested. As a result, on January 16, 2008, McCarty issued a ban on Allstate issuing new insurance policies in Florida until it fully complies with his request. Allstate has, up until now, successfully skirted both the production of the documents and the ban on writing new insurance policies.
Florida personal injury lawyers are all too familiar with Allstate's tactics. Allstate's strategy was the same strategy it often employs in personal injury lawsuits. It objected to producing documents on trade secret grounds; it produced massive volumes of documents that were not relevant to the inquiry; it claimed it had fully complied; it publically asserted it was being treated unfairly by the state; and it appealed the Insurance Commissioners right to obtain the additional documents and ban it from writing new policies. The First Disrict Court of Appeal placed a stay on enforcement until it decided Allstate"s Appeal. The affect of the stay was to allow Allstate to hold on to the documents and continue writing new insurance policies from the time it appealed in January until now.
On May 14, 2008, the First District Court of Appeals finally ruled on Allstate's Motion for Rehearing of its April 4, 2008 denial of Allstates Appeal. Based on the Court's ruling, it appears Allstate's luck finally ran out. First District Court of Appeals Judge Paul Hawkes wrote "Allstate's willful, indeed potentially criminal, failure to comply with its disclosure obligations has prevented OIR from adequately investigating its reasoned belief that Allstate is systematically defrauding its policyholders." Not only did the Court deny Allstate's request for a rehearing of its April 4, 2008 decision to side with the Insurance Commissioner, but it refused to certify the matter to the Florida Supreme Court as a matter of great public importance. The decision will make it very unlikely that Florida's highest Court will take up the matter.
As a result of the Courts decision, it appears Allstate has finally gotten the message and provided all of the requested documents. Insurance commissioner McCarty said in a statement today, May 17, 2008, that after the court's ruling, Allstate provided an affidavit certifying that it complied with Florida law by providing all documents requested by his office. "I have stayed the suspension of Allstate, and I have accepted its affidavit as evidence that they have completely and unconditionally complied with Florida law and with our requests for documents," McCarty said. "I also, though, have made it perfectly clear that failure to cooperate with necessary, ongoing requests from the office will result in an immediate resumption of the suspension."
The Office of Insurance Regulation will now comb through the records and complete its investigation. We will have to wait to see what the documents show regarding the legitimacy of the rate hike requests that started this process. However, at the very least, the process has demonstrated that the state of Florida seems to have an Insurance Commissioner that is willing to put his own self interest aside to do what is right for the people of Florida.
Scott Distasio
Tampa Personal Injury Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
1-888-595-0022
Tampa auto accident attorney
On January 16, 2008, Florida Insurance Commissioner Kevin McCarty abruptly stopped a hearing before it was completed after becoming frustrated with what he apparently perceived as Allstate purposefully not complying with his requests for documents. The hearing was part of the state's investigation into why insurance companies including Allstate had sought to increase rates by almost 42%. Allstate refused to provide all of the documents requested claiming they were either confidential trade secrets and or not relevant to the inquiry. Many of us that represent clients in personal injury lawsuits against Allstate and its insured's are used to similar stalling tactics. Often the tactic works in Allstate's favor. This time it seems to have backfired on them.
Insurance Commissioner McCarty was so irritated with Allstate's failure to comply that he suspended the various Allstate companies' right to sell new insurance policies in the state of Florida until they produce the documents requested. Initially Allstate ignored the request and appealed the Commissioner's decision to the 1st District Court of Appeals. The appellate court gave Allstate a reprieve from handing over the documents until it decided whether the Insurance Commissioner had the authority to order the production of the documents. On April 4, 2008, the court sided with the Insurance Commissioner. According to some media outlets, under the court's current order, Allstate has until April 14, 2008 to produce the documents. Allstate itself has announced it has until April 19, 2008 to decide how it will proceed.
If History serves as any predictor of future conduct, then I would not count on Allstate timely producing the documents requested. In typical Allstate fashion, they flooded the public domain with 150,000 pages of documents by posting them on their website. Allstate had previously produced over 400,000 pages of documents. It has used the sheer volume of documents produced as a smokescreen to suggest that it is fully cooperating with the state to produce the documents requested. The response attempts to portray Allstate as a victim. These stalling tactics and attempts to demonize anyone asking them for unflattering information often works in personal injury lawsuits because it usually takes many years for a civil lawsuit to make it through the appellate process. Allstate simply wears out its opponents. However, the appellate process in this instance was substantially shorter. The first round of Appeals was over in less than three months. Furthermore, the state of Florida is not your typical Allstate opponent. The state has the financial resources to match Allstate dollar for dollar.
As Commissioner McCarty stated, "They have created their own situation. They have blatantly and flagrantly ignored the law. They did not take this process seriously. The only effective and rational response was a suspension of business." One has to wonder, If Allstate has clean hands, why not produce the documents for inspection instead of wasting the state of Florida's time and money fighting the subpeona.
Scott Distasio
Tampa Personal Injury Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
1-888-595-0022
A recent lawsuit between Wal-Mart and its employee, Debbie Shank, has very publically demonstrated that the myth perpetuated by some tort reformers that personal injury lawsuits raise the cost of healthcare is simply not true. As the Wal-Mart case demonstrates, personal injury lawsuits actually decrease the cost of health insurance.
The Wal-Mart lawsuit is based on the simple fact that most if not all health insurance contracts contain a clause requiring a personal injury victim to pay the health plan back out of any personal injury recovery for all health insurance proceeds paid as a result of a wrongdoer's negligence. In the Wal-Mart case, Wal-Mart administers its own health insurance plan for its employees. When Shank was injured in an auto accident, Wal-Mart paid approximately $470,000.00 worth of health care benefits on Shank's behalf. After Shank recovered about $1 million dollars in a settlement, Wal-Mart successfully sued Shank to recover from the settlement proceeds, its entire $470,000.00. The courts decision to require Shank to pay back her health insurance for the benefits she received is not unusual. In fact, what is unusual is the fact that a lawsuit was needed to resolve the conflict. In the overwhelming majority of cases in the state of Florida, and probably the United States, the personal injury lawyer and the health insurance plan negotiate the amount to pay back and the health insurance plan is reimbursed when the settlement is paid. In the absence of the personal injury claim, there would be no settlement, the health insurance would never be paid back, and health insurance rates would actually be higher to make up the difference.
The dispute in the Wal-Mart case involves the fact that Wal-Mart was unwilling to negotiate. They wanted all of the money back. As the appellate court case demonstrates, the law is on Wal-Mart's side. The question raised by the media attention from television commentators Anderson Cooper from CNN and Keith Olberman from MSNBC is whether or not the current state of the law is fair. From the perspective of plaintiffs such as Debbie Shank, the law is clearly unfair.
Under the current state of the law, Ms Shank must pay from her settlement the cost of bringing the claim and her attorney's fees. Health insurance plans such as Wal-Mart, however, get a free ride off the plaintiffs back. They pay nothing for the costs and attorneys fees and take no risk in the litigation. If there is no recovery, it does not cost them anything. If there is a recovery, they stand there with their hand out demanding full payment. The fair thing to do would be at a minimum to require the health insurance plan to reduce their claim by its fair share of the costs and attorneys fees. Many reputable health insurance plans will ultimately agree to this reduction because they know that the plaintiff has incurred these costs on their behalf.
The current state of the law often also fails to take into account whether the settlement proceeds will take care of all of the plaintiff's needs in the future. Often, the proceeds remaining after paying costs and attorneys fees do not. That is certainly the case for Mrs. Shank. The accident left her severely brain damaged and wheelchair bound. She was left with $417,000.00 after paying costs and attorney's fees, but her anticipated future needs were in the millions. Since Wal-Mart wanted its entire $470,000.00 back, she would have been left with nothing.
There are many possible reasons why Mrs. Shank's settlement did not accomplish paying for all her future needs. Sometimes the wrongdoer did not purchase enough liability insurance and or does not have enough financial assets to pay the whole claim. Sometimes, plaintiffs agree to less than full value because of the risk that a jury will decide the person or entity sued was not responsible and therefore award nothing. Regardless of the reason, accepting less than full value in a settlement is a common occurrence. If health plans are not willing to compromise and take less than full value in such situations, plaintiffs will not find it worthwhile to bring claims. For example, I am sure Mrs. Shank did not bring her claim for the sole purpose of paying her lawyers and Wal-mart. Simply put, if health plans insist on full value, many claims will not be brought and their zest to get "everything they think they deserve" will result in them getting nothing.
Recently, Wal-mart gave in to the political pressure generated by television commentators like Anderson Cooper and Kieth Olberman by dropping its lawsuit against Mrs. Shank. Unfortunately, most plaintiffs in this situation do not get help from such heavy hitters. The result is they are simply out of luck.
Of course, not everyone thinks Wal-mart made the right decision. Radio and television personality Glenn Beck for example has equated Mrs. Shank and the media that helped her as "terrorists" engaged in "economic blackmail". It appears from his comments that Mr. Beck has blindly jumped into the controversy head first without doing enough research to thoroughly understand the issues. He does make a good point regarding the fact that Wal-mart was more than generous after getting caught overreaching when it finally decided to waive its right to any payment instead of simply reducing the amount it was demanding. However, his arguments fall apart when measured by his own claimed conservative values. For example, he claims she agreed to the terms of the health plan when she accepted the health benefits. The truth is an employee has absolutely no bargaining power regarding the terms of the health insurance selected by their employer. In fact the employee generally has no way of knowing what is in the fine print of the contract because they are not given the actual contract at the time of signing up. Of course, even if the contract were given to the employee; the employee could find the small clause berried in the many pages of fine print; and the employee had the education to understand the arcane legalese within the document; the employee would still have no choice. If the employee wanted the insurance, the employee would have to accept the clause. Health insurance plans know this and take advantage of the situation. They do not put fair terms in their contracts such as agreeing to an amount reduced by attorney's fees and costs. Instead, they overreach and try to get more than their fair share simply because they can. If Mr. Beck were truly concerned with the conservative value of personal accountability, he would be praising Wal-mart for reassessing its previous policy of taking more than its fair share just because it can, instead of calling catastrophically injured personal injury plaintiffs and those that advocate for them "terrorists".
Scott Distasio
Tampa Personal Injury Lawyer
DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
1-888-595-0022
|
