North Carolina Trial Law Blog

To often, politics of the right and the left interfere with the stark reality of tort reform.  In the past decade or so, conservatives have used "tort-reform" as a political "wedge issue" and have spent multi-millions of dollars to turn the public, and juries, against all Plaintiffs.

The article below was written by a self-described conservative Christian physician who deeply questions the politics of taking away justice from injured people in the name of politics and for the goal of profitting "big business."

This shows me that people are seeing that fairness and responsiblity are truly non-partisan issues, and that lawsuits, in and of themselves, are not "all bad."  In fact, lawyers and lawsuits have often been all that stands between the public and harm.

Remember the Little Guy 
by Steven Hotze, M.D.

Shouldn't companies and individuals who cause you harm be responsible for the damages they inflict?
            
You are probably aware of the lawsuits in the 1970s against Ford Motor Company and its Pinto automobile. Because of poor design, rear end crashes often caused the Pintos gasoline tank to explode into flames. Over 500 drivers lost their lives and thousands more were severely burned. Ford knew about this problem and that it would only cost $11 per car to repair but determined it was cheaper to pay the lawsuit settlements than recall the vehicles. Incredibly, Ford put their profits above the safety of their customers.
            
Because plaintiff attorneys were willing to file lawsuits on behalf of these injured individuals and families on a contingency basis and fight the multi-billion dollar Ford Motor Company, Ford paid hundreds of millions of dollars in judgments. Ford was also criminally charged with negligent homicide for having knowingly sold unsafe cars.
            
These lawsuits against Ford were based on product liability law which holds businesses responsible for any injuries caused by their products. The Ford lawsuits and resulting settlements sent a strong signal to the automobile industry. Safer cars have been the result.
Over the past decade, the Republicans in the Texas Legislature have passed a series of bills which have limited the liability of large corporations when they are found by a jury to have caused injury to their employees or their customers. This has me concerned and it should have you concerned as well.
            
Who wouldnt want limited liability for their actions? This is especially true of some large corporations which place their financial interests above the well being of their employees and customers. 
            
Under current Texas law, it is hard to imagine that Ford Motor Company would have been required to pay out such a large amount of money in judgments as it did at that time.
            
Tort reform has dramatically limited the liability of businesses and individuals in Texas. The Texas Legislature has set limits on the amount that a business or individual can be required to pay in judgment to an injured party. No one likes the idea of frivolous lawsuits, but most individuals seem to agree that a remedy should be paid to an injured party commensurate with the damage.
            
Who does this current law benefit? It benefits the large corporations and the well financed who have deep pockets and the wherewithal to hire a bevy of defense attorneys.  Their financial risk for shoddy workmanship and unsafe products has been dramatically reduced.
            
What about the small business owner or the individual with modest means?  How will they afford the assistance of a lawyer to help them be fairly compensated for their losses?
            
As a physician and conservative, I have a healthy distrust for big government and big business. The conservative position requires accountability for actions. It appears to me that the pendulum for tort reform has swung too far in favor of big business.

Its time to remember the little guy.

by Steven Hotze, M.D.

_______________________

Chris Nichols

www.NicholsTrialLaw.com 

This just in from www.cnn.com

Every once in a while someone goes a little too far in trying to avoid jury service.  Looks like this guy went overboard in his attempt to avoid service on a grand jury, which amittedly, can take a lot of time.

I think the Judge did the right thing here.  Jury duty is one of the very few real things we can do to actively participate in our democracy.

BARNSTABLE, Massachusetts (AP) -- A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.

Daniel Ellis' excuses to try to get out of jury duty didn't sit well with the judge.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

Ellis, of Falmouth, had been called to court with about 60 other potential jurors for possible service on a 23-member grand jury.

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn't like homosexuals and blacks. He then echoed those sentiments in an interview with Nickerson.

"You say on your form that you're not a fan of homosexuals," Nickerson said.

"That I'm a racist," Ellis interrupted.

"I'm frequently found to be a liar, too. I can't really help it," Ellis added.

"I'm sorry?" Nickerson said.

"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" Nickerson asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.

Nickerson ordered Ellis taken into custody. He was released later Monday morning.

Ellis could face perjury and other charges.

Chris Nichols

www.NicholsTrialLaw.com

As I'm getting ready for a trial, I'm constantly reminded that the "reason the case is going to trial" has more to do with the defendant's insurance company than anything else.  It's frustrating as an attorney fighting for justice because I have the burden of proof for the "facts" of the case, but what the jury really needs to hear, I'm not allowed to tell them.

Why?  Well, the insurance industry has effectively "gagged" anyone from telling the jurors why the case is going to trial.  Typically, the reason for that is that the insurance company who pulls the strings on the defendant, WANTS the case to go to trial, because they know that for every case that goes to trial, 99 just give up, and the insurance company gets to pay less than what is "fair and just" as the rules require.

Here are some of the "hidden" rules and insurance practices that you only learn about after you've been hurt by someone else's negligence.

You Can Not Mention the Insurance Company at Trial

Under no circumstances can a Plaintiff mention the word “Insurance” in trial, even though the person who is being sued has insurance. You cannot mention Insurance, nor can your witnesses, including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again.

NC Rule of Evidence: Rule 411. Liability insurance.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 

Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature so diligently that it has created a set of court rules that absolutely prohibits the lawyers representing injured people from telling the jury the truth that the little old lady in the defendant's chair has had no choice in whether she is sitting there or not. She cannot settle the case even if she believes you deserve everything you are asking for.

The insurance company is completely in control of how much to offer the injured person, whether to settle the claim or not, and what they should contest in the lawsuit. So, even if the little old lady sitting in the defendant's chair wanted to settle the lawsuit for the same amount as what the injured person is requesting, the insurance company won't offer the money.

In North Carolina, the Plaintiff has virtually no right to sue an insurance company for improperly denying a claim or delaying the payment of what is due. Again, effective political contributions, and legal maneuvering by insurers have resulted in these rules.

Its cheaper to deny the claim than settle.

Believe it or not, insurance companies have saved Billions of dollars since the mid 1990s, by improperly denying claims, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation, against people insured by these companies. This is part of a deliberate claim handling program implemented by McKinsey & Company, the same consulting firm that set up Enron's business model, at many of the nation's largest insurance companies. See "Record Insurance Profits" Article

But, in jury selection, jurors often mention that if the injuries are real, the case should have settled with the insurer. That is exactly what the insurance company is hoping for. It doesn't matter if they offered $0.50 on a claim worth $500,000. The jury will never know, because the lawyers are prohibited from ever mention the settlement negotiations during the trial.

McKinsey & Company counted on this when they told Allstate Insurance in the mid 1990's to quit treating people with “Good Hands” and instead treat them with “Boxing Gloves.” When Allstate forced more litigation and posted record profits, the rest of the insurance industry followed their lead. It is now standard operating procedure in the insurance industry to spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. Read a Transcript of Anderson Cooper's Interview with one of Allstate's Victims

That is because the end result is that most lawyers will not take the cases, and people will not file the claims themselves. These improper denials have led to a huge spike in bankruptcies in the United States, the leading cause of which is an inability to pay for medical bills. So, when jurors turn injured people away, everyone but the person at fault, and their insurer pay for the damage. Instead, the jurors take the financial burden themselves through higher taxes to pay for the bankruptcy. For more, see the article entitled “In Tough Hands” in BusinessWeek.

Well, it finally happened- I'm officially a published author now (and editor!)

The NC Lien Manual is now on the shelves, the one I edited and wrote chapters for and that was published by the North Carolina Academy of Trial Lawyers and Lexis.  Before you think that I'm pitching my own product, you should know that 100% of proceeds go to NCATL to further the fight for people's rights, not to me!

Here is the link to check it out: NC LIEN MANUAL

Here is what Lexis says:

What is a Medicare Set Aside (MSA)?
In 2001 Medicare (CMS) announced that it would begin to exercise the Medicare Secondary Payer (MSP) statute.  The concept of the law is that Medicare is a "secondary payer" when any other form of insurance exists to pay claims.  Before 2001, that meant traditional health insurance, but starting in 2001 CMS began to interpret that to mean that even third party insurance, specifically Worker's compensation settlements that "cut off" future medical benefits (clinchers), would be subject to the MSP regulations.

This meant that any Workers Compensation clincher that resaonably cut off future workers compensation benefits would have to be reviewed by CMS to determine if there should be an MSA "allocation."  Accordingly, Medicare would look at the case and decide what the future medical costs for the injury would be.  The future costs would be placed in a MSA trust for the payment of medical services related to that claim. Click here to read what Medicare says about MSA's.

Qualified claimants are  often referred to as Class I and Class II claimants or beneficiaries and  are determined as follows:                   

• CLASS I - Any claimant who is currently Medicare eligible and the total settlement value is greater than $25,000.
• CLASS II - Any claimant who has a reasonable expectation of Medicare enrollment in 30       months or less and the total settlement value is greater than $250,000.

Does the MSP apply to Liability Settlements?
The answer is yes, and no.  Yes, because the MSP statute clearly says that liability settlements are covered by the MSA guidelines:

USC Title 42, Chapter 7, Subchapter XVIII, Section 1395y comprises the Medicare Secondary Payer Statute.According to the Code of Federal Regulations(CFR) Title 42, Part 411, Subpart B, Section 411.20 (2), “Section1862(b)(2)(A)(ii) of this Act precludes Medicare payments for services to the extent that payment has been made or can reasonably be expected to be made promptly under any of the following:”

The "no" part of the answer is because CMS has not yet started enforcing Medicare Set Asides in standard laibility cases, but that is coming, I think.

Dark Clouds on the Horizon
Here are the signs that things may be changing in the future:

United States of America v. Baxter International, 345 F.3d 866 (11th Circuit 2003) This was a class-action products liability case centered on leaking silicone breast implants.The defendants settled the class-action lawsuit in 1995 for $4.2 billion with no admission of liability. The Office of General Counsel filed suit in 2001 on behalf of Medicare asserting a right of recovery consisting of payments Medicare made to treat the toxic condition of many of the claimants. The government’s case was dismissed  at the district court level for failure to state a claim.  However, the Eleventh Circuit U.S. Court of Appeals reversed and remanded the case, determining that Medicare did in fact have a right of recovery. The case is significant because it expands the reach of the MSP to civil litigation and upholds Medicare’s secondary payer rights.

According to Gould & Lamb, LLC, an MSA company,

• In late 2003, CMS appointed a Director of Liability in the Baltimore Home Office to begin addressing liability settlements. They have indicated that CMS is diligently developing the MSP Liability enforcement policy covering liability and no-fault settlements. While the thresholds and case criteria remain unclear, it is clear that liability settlements’  involving consideration of future medical costs will be the target of this CMS program.

• Medicare Prescription Drug Improvement and Modernization Act of 2003 included changes to the MSP Statute that increase Medicare rights as a secondary payer. The legislation is written as if the changes noted in the Act were included in the original MSP, dating back to 1980. The Act closed loopholes and eliminated previous legal arguments used to defend against the MSP, including “prompt payment” and “self-insured plan” exclusions. The Act also added that an admission of liability is not necessary to have exposure to the MSP; it applies if any payments are made to settle the claim.

• During a recent CMS Conference in Atlanta (June 2004), representatives of the Office of General Counsel  of the United States confirmed the intention of Medicare to begin enforcing the MSP against liability and no-fault cases in the very near future. They remain guarded about the specifics of the program and Gould & Lamb continues to monitor this situation closely. However, it is our considered opinion that an official MSP enforcement policy will be forthcoming within 12-24 months.

It's Coming, Get Ready
Given that Medicare is continually put on the chopping block by the federal government, and our current administration is not exactly "lawyer friendly", we should expect that we will have to deal with tMedicare Set Aside issues in liability cases in the near future.  Fortunately, in the recent case of Arkansas v. Ahlborn the US Supreme Court has at least given us the ability to argue that if CMS gets a piece of the settlement for future meds, then at least their lein for the past medical expenses must be allocated in proportion to the ratio of the medical costs to the overall value of the case.

Chris Nichols
Nichols Law Firm

The North Carolina Court of Appeals has ruled today that a plaintiff is not entitled to recover punitive damages from an Estate of a tortfeasor.  In the matter of Harrell v. Estate of Perry, the COA addressed an appeal from a Superior Court where the Superior Court had ruled that pursuant to NC Rule of Civil Procedure 12(b)6, the Plaintiff had failed to state a claim upon which releif can be granted under some legal theory.  The gist of the opinion is that punitive damages are awarded to punish the wrongdoer, and the death of the wrong doer precludes his being punished by the assessment of punitive damages.

Drunk Defendant Dies After Injuring Plaintiff
The opinion of the COA is light on facts, but does cite that the Plaintiff alleges he was injured in a motor vehicle collision caused by an intoxicated defendant.

The Plaintiff brought a case for compensatory and punitive damages and the defendant moved to dismiss under 12(b)6.

Levinson: You Can't Deter the Dead with Punitives
Judge Levinson, writing for the panel, cited a 1982 decision that held that punitive damages were not appropriate against a deceased defendant.  The issue in this case was whether the 1996 amendment to the punitive damages statute, N.C. Gen Stat. § 1D-1, expanded the scope of punitive damages in the section that states that punitive damages may be awarded:

“to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.”

And, But or Or Won't Get You Very Far
While the Plaintiff argued the obvious policy reasons behind the statute, that punitives should be awarded against an estate to discourage similar bad behavior of people that are living, the COA dodged that policy discussion through statutory interpretation.

Judge Levinson wrote:

     It is a common rule of statutory construction that “when the conjunctive 'and' connects words, phrases or clauses of a statutory sentence, they are to beconsidered jointly.”  Lithium Corp v. Bessemer City, 261 N.C. 532, 535, 135 S.E.2d 574, 577 (1964).  Thus, an individual is subject to punitive damages where he or she may be punished for the egregiously wrongful act and be deterred from committing such an act in the future.
    In the instant case, defendant died sometime before plaintiff filed the subject complaint.  Because defendant is deceased, deterring him from committing a similar wrongful act in the future is, of course, not possible.  Consequently, the statutory mandate of G.S. § 1D-1, providing that the appropriateness of punitive damages is contingent upon punishing and deterring defendant from engaging in similar conduct in the future, cannot be achieved. 

So there you have it.  The "and" means that if punitives deter someone else, that's great, but that alone will not allow punitive damages to be granted.  You need a live tortfeasor to punish first.

I don't particularly agree with this interpretation.  To me, the "plain meaning" of the statute is that it is meant to deter other acts like this, whether they be from the defendant or from other similarly situated defendants.

-Chris Nichols
www.NicholsTrialLaw.com

When the Governor Signs[ed] the Bill, How will [does] it Work?

The Legislature has passed a revision to the State Employee and Teachers Health Plan lien and has sent that bill to the Governor for signature.  Refer to this post for the text of the bill.

A Hole in the Umbrella

Most people driving around these days are blissfully unaware of Umbrella Policies.  Umbrella policies or "Personal Liability Umbrella Policies"  (PLUP) are insurance policies sold to cover individuals and businesses in case the "regular" insurance is not enough.  In other words, if you kill someone by your own negligence, and they sue you for more than your regular insurance policy limit and win, your Umbrella Policy will "kick in" up to its policy limits, which are usually at least one million dollars.

Here is the catch:  Most Umbrella policies EXCLUDE coverage for your family members.  What that means is that if you are driving the neighbor's kid to school and severely injure her because you ran a red light, your Umbrella policy will provide coverage for her injuries.  BUT, if you are driving your wife and your OWN child and ran the red light injuring them both, the Umbrella policy would pay nothing.  That's right, NOTHING, nada, zilch.  The Umbrella policy contains a provision called a "household exclusion" or "family member exclusion" that prohibits coverage for members of your household.

Agents Unwittingly sell Unfair Policies

Is that unfair?  Sure.  But insurance companies get away with it because no one reads their policy.  On top of that, many agents selling these policies do not even realize the provision is in there.  They may not realize it is in the Umbrella because North Carolina outlawed family member exclusions in other types of automobile insurance (liability, underinsured, uninsured) decades ago.

Want to know more about how to "fix" the Umbrella?...read on by clicking below......