Birmingham Personal Injury Lawyer - tort reform

South Carolina Surprise

Jon Lewis — Mon, 29 Jun 2009 21:36:08 GMT

It was reported this past week that South Carolina Governor, Mark Sanford, has had an affair. The media has treated this as landmark news. What I think would be landmark news is a politician who has not had an affair. Is this surprising? Should we expect anything less?

Why am I writing about this? Because I meet with clients every day who show surprise when the law doesn't go their way. What do I mean?

Let's take arbitration for example. Clients come into the office after being defrauded by a company or had a contractor treat them wrong. After reviewing the contract and seeing the arbitration clause, I tell them that they cannot sue the defendant in court. They have to arbitrate the claim. The reaction, "What?" "Are you kidding me?" "How can they do that?"

Or, what about when I have to explain Alabama's wrongful death law. In Alabama, when someone is killed by the negligence of others, you can only sue the other person or company for punitive damages, not compensatory damages. In other words, we have to argue to the jury that they must punish the defendant, not compensate the victim's family. That becomes VERY difficult when the defendant made a mistake such as running a red light or changing lanes without looking properly.

What is the respective clients' reaction to this? "What?" "Are you kidding me?" "How is that possible?"

What's the moral of the story? Pay attention. Pay attention to your spouse and to politicians, and maybe, you won't be surprised. Pay attention to your legislators and judges. Know what laws they are passing. Lobby your congressmen and let them know that these laws aren't right and need to be changed.

Originally posted at InjuryBoard by Jon Lewis

Alabama Judges

Jon Lewis — Sun, 24 May 2009 16:55:10 GMT

The Alabama Legislature recently passed a law which requires Judges to have minimum levels of experience before being eligible to run for office. Appellate Court Judges must have been a member of the Alabama State Bar for ten years. Circuit Court Judges must have five years of experience, and District Court Judges must have three years of experience.

The Appellate Courts consist of the Supreme Court of Alabama, the Court of Criminal Appeals, and the Court of Civil Appeals. In civil cases, Circuit Courts handle controversies involving amounts exceeding $10,000 (along with those between $5,000 and $10,000 if the parties file it in Circuit Court), and District Courts handle claims involving controversies over amounts less than $5,000 (in addition to evictions and some other claims).

Is this enough experience? I have been practicing law for 17 years, and only now would I feel comfortable in a Circuit Court position. In addition, I believe Appellate Court judges should be required to have experience as a Judge before being elected to an appellate position.

What levels would I recommend? I think Appellate Court Judges should have a minimum of fifteen years practicing law and one term as a Circuit Court or District Court Judge. Circuit Court Judges should have a 10 year requirement, and District Court Judges should have a five years of mandatory experience as an attorney. In addition, I believe judicial elections should be nonpartisan (not Republican or Democrat), and judges should be selected from a commission and appointed by the governor as it is done when a Judge retires mid-term.

What do you think?

Originally posted at InjuryBoard by Jon Lewis

Insurance Company and Corporate Names

Jon Lewis — Sat, 16 May 2009 15:35:40 GMT

Names may change, but the companies don't. In law school, we learned a phrase, "Form over Substance". What's an example? You can call a table a chair, but it's still a table.

In the Birmingham News today, it was reported that GMAC Bank is taking on a new name. GMAC Bank has now become Ally Bank. This is not a surprise given the fact that GM is about to file bankruptcy. Why would GMAC Bank want to be associated with a bankrupt company? They wouldn't.

Another example of this is 21st Century Insurance. Who is that? Surprise!! AIG. Can you believe it? AIG sold its insurance division to Farmers, and it's now called 21st Century Insurance. They don't want their company associated with AIG anymore. Are they really any different?

Why do I care? Well, a couple of years ago in Seattle, the U.S. Chamber of Commerce ran a full page ad in the USA Today stating, "Same leopard. New Spots". They were referring to the Association of Trial Lawyers of America. Our Group decided to change the name of the organization to the American Association for Justice.

Obviously, "Trial Lawyers" have been bashed in the media and by corporate interests, and our organization wanted to let people know what we stand for as opposed to what our name is. People can bash "Trial Attorneys", but who can bash "Justice?"

I bring this up because I want people to know that the corporate and insurance interests are no different. In fact, they are worse. Why? Their hypocrisy knows no bounds. They criticize trial lawyers as greedy and selfish when it is now abundantly clear where the greed lies. Given our current economy and mortgage crisis, who has exemplified more greed than huge corporations. Look at Enron, Tyco, HealthSouth, Madoff, Worldcom, AIG, and on and on. These companies, and their officers and directors, were fleecing the American public. Do they care? No, they just change their name and go on with government backing - our tax dollars.

On the flip side, what do trial lawyers do? We try to protect individuals from injury and fraud. Which side are you on? Corporate accountability or Corporate greed? I'm biased, but I'll take corporate accountability and side with trial lawyers any day of the week.

Originally posted at InjuryBoard by Jon Lewis

Insurance Company Loses

Jon Lewis — Thu, 07 May 2009 15:03:58 GMT

When will insurance companies learn? There was a lesson taught today by my partner, Danny Feldman. He represented a client in an accident caused by a teenage driver. The client had lost value on his vehicle, and his back was hurt. However, instead of complaining about his back and going to the doctor, he took some advil and "toughed it out".

What did Farmers Insurance offer to settle the case? $1,000.00. $750 for lost value and $250 for the injury. Danny told the adjuster he would settle for $1,500.00. The adjuster said, "No". Danny filed suit, and the attorney said $1,000.00 was all they would pay.

What was the result? They tried the case in District Court today. The defendant teenager had to miss school to come to court. Farmers had to pay its attorney to defend the case. Verdict? $4,555.00.

So, it was Farmers which refused to pay a reasonable amount on a case. It was Farmers which caused another case to "clog" the court system. It was Farmers which required its insured to appear in court. And, it's Farmers which ended up paying approximately $7,500.00 (including its own attorney fees) on a case that could have been resolved for $1,500.00. Of course, knowing Farmers, they will appeal the verdict and spend more money. What causes premiums to go up? Verdicts or decisions to spend more than a case is worth?

This is not an unusual situation. State Farm, Allstate, Progressive, Geico, Nationwide, and other insurance companies regularly employ these tactics. Until the juries and Judges start awarding a reasonable amount in their verdicts, things won't change. Keep this in mind the next time you read or hear something in the media about trial attorneys and tort reform. In this situation, as in many, it's the insurance company and not the trial lawyer which is creating a tort mess.

Originally posted at InjuryBoard by Jon Lewis

Nick Saban's Response to Passengers

Jon Lewis — Wed, 07 Jan 2009 08:00:00 GMT

The Birmingham News reported that a Huntsville, Alabama man sued American Airlines over travel delays. The article states that approximately 2,400 passengers were stranded due to bad weather. As a result, it took James Harper 28 hours to travel from Cancun, Mexico to Huntsville. He had to endure horrendous smells from the toilet, no food or beverage for an extended period, and seven hours on an airplane in New Orleans.

Now, I'm not familiar with the merits of the case, but it got me to thinking about what Nick Saban's reaction would be to this lawsuit. Can you imagine? I can see the dialogue now:

Passenger - "Coach, it smells bad in here, and it's hot. Can't we have some water?"

Saban - "Water? You want water? Drink from the toilet."

Passenger - "But, coach. the water's dirty. I can't drink that. We've been on this plane for seven hours."

Saban - "Seven hours? That's nothing. I'm going to make you sleep on here if you don't quit whining. Do you want to get home? You must have focus. It's a process. Have a positive attitude. Quit whining and toughen up!"

Or, can you imagine someone in the military complaining to his/her captain about the conditions in the field? Granted, these individuals volunteered to be in the military or play football, but come on.

I'm a trial attorney, and I have a hard time stomaching a case like this. In this age of tort reform and attorney bashing, do we really need to be suing companies when the damage is inconvenience and discomfort? Yes, maybe American Airlines should have been better prepared, but is a lawsuit the answer?

The lawsuit seeks $5,000,000.00 in damages for 2,400 people. Assuming the attorney fees equal 1/3 of the recovery, that would leave approximately $1,388.00 per person. That figure assumes no expenses for the litigation which would be a poor assumption because litigation has become even more expensive.

So, who will benefit from this lawsuit? I'll leave that to your imagination (not that it requires any). Maybe this is why trial attorneys are constantly bashed in the public eye and why the U.S. Chamber of Commerce's marketing against trial attorneys is so successful (See www.FacesofLawsuitAbuse.com which I would gladly criticize, but I'm sure this lawsuit will make the site).

Originally posted at InjuryBoard by Jon Lewis

What's Good for the Goose

Jon Lewis — Mon, 23 Jun 2008 13:16:00 GMT

In March, Hoover Toyota filed a lawsuit against another automobile dealership, Serra Toyota, alleging deceptive advertising in a direct mail campaign. The lawsuit claims Hoover Toyota will suffer irreparable injury and seeks to enjoin Serra Toyota from continuing the advertising campaign along with a request for unspecified monetary damages.

Wow! Where's the U.S. Chamber of Commerce's outrage? Where are the claims of frivolous lawsuits? Where are the claims of greedy trial lawyers (Hoover Toyota happens to be represented by one of the largest law firms in Alabama and the Southeast: Bradley, Arant, Rose & White, LLP.

As has been said on many occasions, their hypocrisy knows no bounds. Why is it okay for a business to sue another business for money, but it's not okay for an individual to file a lawsuit against a business because of a physical injury or fraudulent conduct? We continue to hear the scare tactics of big business and insurance companies: lawsuits are ruining the country; tort tax; trial lawyers are making prices go up (it might have something to do with oil prices). But, when it comes to their own self interests, lawsuits are okay.

The fact is that individual lawsuits are down. Verdicts are down. And, a majority of the lawsuits filed are businesses against other businesses, not individual suits. If businesses think there are too many lawsuits, they need to practice what they preach and start working things out instead of running to the courthouse. Otherwise, what's good for the goose is good for the gander.

Originally posted at InjuryBoard by Jon Lewis

Punitive Damages Reduced

Jon Lewis — Sun, 22 Jun 2008 13:05:49 GMT

According to an Associated Press article in the Birmingham News on Friday, June 20, 2008, Montgomery County Circuit Judge Charles Price upheld Alabama's verdict against AstraZeneca Pharmaceuticals LP, but reduced the verdict. The original verdict of $215 milllion obtained by InjuryBoard member Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. was reduced to $160 million. Judge Price reduced the punitive damages from $175 million to $120 milllion as required by the law.

The original case stemmed from the State of Alabama's claim of fraud against the pharmaceutical company. According to the State, and confirmed by the jury, the company overcharged for prescription drugs for Medicaid recipients. This was the first verdict in lawsuits filed by the State against more than 70 drug companies for similar allegations.

Judge Price agreed with the jury that AstraZeneca's actions were "reprehensible". Unfortunately, Alabama's laws put a cap on punitive damages which rewards the company for fraudulent conduct. The jury determined the damages based upon the evidence. This is a jury of twelve individuals who came to a unanimous decision. The caps came from the push by tort reform advocates regarding lawsuits and damages, and the statute is set forth below.

This verdict will be appealed and will probably be reduced further by the Supreme Court of Alabama which has consistently reduced verdicts over the last several years. Who should be making these decisions? Twelve jurors who were seated according to our Constitution or lobbyists and judges?

section 6-11-21

punitive damages not to exceed certain limits.

(a) except as provided in subsections (b), (d), and (j), in all civil actions where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed three times the compensatory damages of the party claiming punitive damages or five hundred thousand dollars ($500,000), whichever is greater.

(b) except as provided in subsections (d) and (j), in all civil actions where entitlement to punitive damages shall have been established under applicable law against a defendant who is a small business, no award of punitive damages shall exceed fifty thousand dollars ($50,000) or 10 percent of the business' net worth, whichever is greater.

(c) "small business" for purposes of this section means a business having a net worth of two million dollars ($2,000,000) or less at the time of the occurrence made the basis of the suit.

(d) except as provided in subsection (j), in all civil actions for physical injury wherein entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed three times the compensatory damages of the party claiming punitive damages or one million five hundred thousand dollars ($1,500,000), whichever is greater.

(e) except as provided in section 6-11-27, no defendant shall be liable for any punitive damages unless that defendant has been expressly found by the trier of fact to have engaged in conduct, as defined in section 6-11-20, warranting punitive damages, and such defendant shall be liable only for punitive damages commensurate with that defendant's own conduct.

(f) as to all the fixed sums for punitive damage limitations set out herein in subsections (a), (b), and (d), those sums shall be adjusted as of january 1, 2003, and as of january 1 at three-year intervals thereafter, at an annual rate in accordance with the consumer price index rate.

(g) the jury may neither be instructed nor informed as to the provisions of this section.

(h) this section shall not apply to class actions.

(i) nothing herein shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary, and constitutional requirements, and to order remittitur where appropriate.

(j) this section shall not apply to actions for wrongful death or for intentional infliction of physical injury.

(k) "physical injury" for purposes of this section, means actual injury to the body of the claimant proximately caused by the act complained of and does not include physical symptoms of the mental anguish or emotional distress for which recovery is sought when such symptoms are caused by, rather than the cause of, the pain, distress, or other mental suffering.

(l) no portion of a punitive damage award shall be allocated to the state or any agency or department of the state.

(acts 1987, no. 87-185, p. 251, §2; act 99-358, p. 563, §1.)

Originally posted at InjuryBoard by Jon Lewis

Protective Orders

Jon Lewis — Thu, 29 May 2008 11:00:00 GMT

It seems as though defense attorneys are filing for protective orders on behalf of their clients on a more regular basis. Why is this? Well, there are several reasons, and none of them make a lot of sense realistically.

We currently have a case against Mercedes Benz. It's not a products case. It's an accident. They have filed for a protective order on any information they give us due to their classifcation as trade secrets, etc. Trade secrets? What, are we going to take that information and publish it? Give it to BMW? Porsche? I think not.

So, why do they file for these? I have a few theories. One, they actually believe we will distribute this information, and as a result, their business will be harmed. Two, they are trying to paper us to death and make us work harder by having us keep up with the documents and return them when the case is concluded. Three, the defense attorneys are adding to their work so they can bill more hours and make more money.

With tort reform, plaintiff cases are down. What happens when plaintiff cases are down? Defense firms have less cases to bill for work. So, what do they do? They figure out ways to bill more on the same files. It is doubtful that these companies are really concerned about their "trade secrets". If they were, why weren't they filing so many of these a couple of years ago?

Originally posted at InjuryBoard by Jon Lewis

Club Liable for Stripper's Car Accident?

Jon Lewis — Wed, 28 May 2008 11:00:00 GMT

This is an interesting case. The Birmingham News reported in its May 27 edition that Patsy Hamaker has sued her employer, the Furnace, as a result of a single car collision which occurred after work one evening. According to the article, the club encourages dancers to increase liquor sales by giving them a percentage of the drink sales. As a result, Ms. Hamaker allegedly became highly intoxicated and was allowed to leave work in that state.

Without knowing more facts, it is difficult to assess whether the Furnace would have liability in this situation. Surely, the club's owners will deny the allegations. Furthermore, even if they agree that they encouraged their dancers to increase drink sales of customers, they will most certainly argue that they do not encourage their dancers to actually drink the beverages and get drunk.

While I would not argue that this is a frivolous case, it will definitely lead to such arguments simply given the facts, and the tort reformers are probably licking their chops. They will argue that the employee should be responsible and not get intoxicated. But, this is a business which allegedly encourages intoxication because it leads to more money. Whether you approve of strip clubs or not, an employer of such a business should never allow an employee to leave work intoxicated. In fact, the employer should have a duty not to allow an employee to leave work intoxicated. This should be the case not only to protect the employee but, also, to protect the other motorists.

Originally posted at InjuryBoard by Jon Lewis

Following Rules of the Road

Jon Lewis — Mon, 26 May 2008 13:13:34 GMT

Do you follow the Rules of the Road? Did you even know that Alabama has a code section (Section 32-5A-1) governing the rules of the road? Remember that little book (Driver Manual) you had to study before obtaining your learner's permit? Most people forget about these rules immediately following their driver's license exam. Unfortunately, that occurs when you are sixteen (16).

On Saturday, the Birmingham News reported some of the results (here are the complete results) from the GMAC Insurance national driving test (click on this to take the test). According to the Birmingham News, sixteen percent (16%) or thirty-three million licensed drivers in the U.S. should not be behind the wheel. Alabama's rank was fifteenth (15th) which was much better than the State's 2007 result (25th).

When we hear all of the tort reform pundits, they seem to disregard these types of issues. Driving can be dangerous, and when someone does not know the rules of the road (and apparently, there are many of these someones), they can cause accidents and injuries. Not knowing these rules and violating them are negligent, and possibly wanton, actions. When someone does not know these rules, understand these rules, and abide by these rules, they should compensate the other party for their injuries when the person's negligence and/or wantonness caused the injuries. Tort reform rewards this ignorance of the rules of the road. Maybe the pundits should think about this.

Originally posted at InjuryBoard by Jon Lewis