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Archive for Insurance Law

What is Virginia’s Statute of Limitations?

Wednesday, May 15th, 2013

     Who is Limitations and why is there a statute named that ? ice cream

     Yes, that’s probably the kind of question that I would have asked when I was a kid. For the same reason that I thought that the song  we were singing in church was, “Bringing in the sheeps… we shall Columbus, Georgia”,  instead of “Bringing in the Sheaves… We shall come rejoicing”.  That’s what happens when you sing what you hear, when you can’t yet read. Like Statute of Limitations, not statue of limitations.

     Of course, I really am doing a round about discussion of the question, “How long do I have to bring a lawsuit”? Well, below is a quick chart on some civil actions, provided from Lawyers.com.  Separately, ”When does the statute start to run” is a question that is sometimes argued to a Judge. 

      Still, even with the following chart, it still can be a bit confusing. kinda like:confusion chart 

Assault and Battery, 2 years

Va. Code § 8.01-243(A)

Contract (in writing), 5 years

Va. Code § 8.01-246(2)

Contract (oral or not in writing), 3 years

Va. Code § 8.01-246(4)

False Imprisonment, 2 years

Va. Code § 8.01-243(A)

Fraud, 2 years

Va. Code § 8.01-243(A)

Enforcing Court Judgments, 20 years

Va. Code § 8.01-251        

Legal Malpractice, 3 or 5 years (Depending on the type of contract or agreement)

Va. Code § 8.01-246(2) or (4)

Libel, 1 year

Va. Code § 8.01.247.1

Medical Malpractice, 2 and up to 10 years (Depending on the type of malpractice and when it’s “discovered”)    

Va. Code § 8.01-243(A) and (C)

Personal Injury, 2 years

Va. Code § 8.01-243(A)

Product Liability, 2 years

Va. Code § 8.01-243(A) and (B)

Property Damage, 5 years

Va. Code § 8.01-243(B)

Slander, 1 year

Va. Code § 8.01.247.1

Trespass, 5 years

Va. Code § 8.01-243(B)

Wrongful Death, 2 years

     So for pic o’ day, just in case you aren’t interested in a chart, how about a little lawsuit adversity that compares to… hand meets fist? I know… it’s getting crazy!

hand meet fist

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The Video Deposition

Monday, May 13th, 2013

     Do you remember this Schwab investment TV advertisement? It is comparing a bad stock company to Schwab by portraying some boiler room stock-selling company in a unfavorable way. Their manager is telling all the sales people to get on the phone and pitch some crummy stock to customers by “let’s go out there and put some lipstick on that pig”.lipstick pig

     When I watch it, it still makes me laugh. It also reminds me a little bit about what sometimes happens in some of our cases. A thought on the evidence.  (Practice Alert)  I am going to tell you a blog secret between you and me!  Defense lawyers… your eyes are getting very sleepy. You better go catch a nap.   

     This involves why we video the depositions of the opposing party (defendant) on most of our cases. I am not insinuating that the other side is a pig. Just whether a jury perceives someone trying to be something that they are not. The defense attorney making their client get all  ”dressed up for court”. 

     This past week, I drove to Wytheville, Virginia, for my scheduled depositions. I was taking the defendant’s and the opposing attorney was questioning my client.  We also had the deputy who had investigated this 2010 crash. Because the defense attorney’s office was about 50 miles from the county, we agreed to have the depositions at the courthouse where the trial is scheduled.

     I showed up a little early so I could also get a look at the courtroom. Then, I was shown back to the law library where the depositions were scheduled. Soon, my client, the court reporter and videographer arrived. I had noticed the deposition for video and court reporter. The defense deposition notice was for transcription by the court reporter without any video.

     The defendant arrived before his lawyer. He was dressed in a T-shirt and jeans. Like he would normally dress everyday. Soon, his lawyer arrived. The depositions proceeded. After I had completed the first deposition, the videographer packed up and left.   

     Generally speaking, I think that people should basically dress comfortably. My grandfather was a farmer. He would always dress the way he wanted to… in overalls like a farmer. 

      In court cases, I believe that clients should basically dress in something that they normally and comfortably wear and not wear something that they would normally never wear. I think that some lawyers believe that their clients should always be dressed in their Sunday best; and if they don’t own dress clothes, they should buy some. To me, I think people act differently in clothes that they never wear.

    That takes me to why I like to videotape depositions.  In many cases, I will show the video deposition during trial. The jury usually begins watching the deposition. Then, I will sometimes notice when they look over at the defense table where the defendant is now all dressed up. Consciously or unconsciously, I think that it sends the message that the opposing party is trying to project something that they are not.

     After one trial, I even had a juror come up to me with a smile and comment on how “dressed up” the opposing party came for trial. Maybe it’s just my crazy thinking. I also think that videotaping keeps everyone more alert during the deposition and even captures the tone and pauses of the questions and answers.

     As to last week’s deposition,, it will be interesting to see if the opposing party shows up in his usual clothing or if the defense lawyer will decide to make him get “all dressed up”. 

     Hopefully, the defendant will do something to make the jury ask “why”. Then, maybe that will carry over on to the evidence. In every trial there is a truth-giver and someone who is perceived as less. I think being real about appearance might be part of that. There has to be a reason that “a picture is worth a thousand words”.  What do you think?

     For pic o’ day, I stayed with blame and evidence!!

blame

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Mom’s Lawyer Joke

Monday, April 29th, 2013

     Typically, lawyers don’t get real excited about lawyer jokes. It’s that whole “it’s a profession” thing. I have even been to seminars where the speakers chastise anyone for ‘participating in the telling of lawyer jokes”. lawyer cupcakes     With that thought, I don’t want to make my “brethern or sistern in law”, bothered at my participation in lawyer jokes. Still, the following was sent from my Mom. It really isn’t a “lawyer joke”, so maybe I am still safe.

     One final note on “Mom’s joke”. Of course,  no one is suggesting that this really happened or that this is appropriate conduct. (Have I covered all my bases now!!!!) On to Mom’s joke:

A plaintiff in a lawsuit involving large sums of money was talking to his lawyer. “If I lose this case, I’ll be ruined.” “It’s in the judge’s hands now,” said the lawyer. “Would it help if I sent the judge a box of cigars?” “Oh no! This judge is a stickler on ethical behavior. A stunt like that would prejudice him against you. He might even hold you in contempt of court. In fact, you shouldn’t even smile at the judge.” Within the course of time, the judge rendered a decision in favor of the plaintiff. As the plaintiff left the courthouse, he said to his lawyer, “Thanks for the tip about the cigars. It worked!” “I’m sure we would have lost the case if you’d sent them.” “But, I did send them.” “What? You did?” said the lawyer, incredulously. “Yes. That’s how we won the case.” “I don’t understand,” said the lawyer. “It’s easy. I sent the cigars to the judge, but enclosed the defendant’s business card.”

     And for pic o’ day,

goldfish v

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A Tattletale Car

Wednesday, April 10th, 2013

I have always been fascinated by the Progressive Insurance advertisement that excitedly proclaims insurance savings. All you have to do is plug their driving device into your car for thirty days and then bring it back to them. According to the ad, “Flo” is all excited about this new device of savings.

What the ad doesn’t say is how the garage-door-sized device truly works. The device plugs into your car; confirms your vehicle identification number; and then monitors the cars driving habits for thirty days. Originally, the device contained GPS that would have specifically shown the exact travel of the car. Progressive claims that they have removed GPS from the device.

The device does tell just about everything else including speed, driving distances and other driving habits specific to that car, that has consumer organizations concerned. After you bring the device back to Progressive for your insurance quote, I am told that they then leave the device in your car another 6 months, if you do purchase insurance.

Of course, someone may choose to allow Progressive to have such knowledge access. Separately, USA Today  recently did an article that also proclaims that current cars are basically ”rolling computers”. The transponders in these cars are transmitting  information that can then be sold to third parties.

A car manufacturer may have you sign small print documents that allow them to notify an oil change business to contact you, when the car has traveled a certain distance. The car computer even keeps records of the car’s use of cruise control, cabin temperature settings  and how long it might sit in traffic.

The attached USA Today article is long with several examples of “car knowledge”. It’s just something to think about when you are in your car. Maybe the computer would also say that no one is taking “Sunday afternoon drives” for relaxation, like they sometimes do in the movies. It’s all a question about what is an invasion of privacy.

For pic o’ day, I pulled out an “oldy”. Let’s see what Flo thinks about this driver’s cautious habits:

dog_driving

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Geico Musicians

Monday, April 1st, 2013

     I admit that I laugh at some insurance commercials. Others just make me sneer. For instance, I always laugh when Allstate’s Mayhem falls through the roof or slaps against a car. It doesn’t matter to me that Allstate might not be a treat to negotiate with on a claim.

     When it comes to Geico ads, I admit that I really don’t find any of them that funny. Well, maybe a pig on a plane might be unusual. Other than that, the ads don’t grab me. I am fascinated that they originate from an agency in Richmond, Virginia.

     A recent campaign includes two men playing musical instruments. They comment on Eddie Money running a travel agency or a muscle man directing traffic. Come to think of it, I do like the lion named Carl, who is being watched by two antelopes with night vision goggles… but I digress.

     I saw a New York Times advertising column discuss those musicians.  Stuart Elliot answered who they are and whether they really are musicians. Since it involves advertising and insurance, I thought that his answer serves as a curious look behind the advertising scenes. Here’s what he said, 

A. The commercials for Geico, dear reader, are part of a campaign that began in July, says Theresa Dunn, a spokeswoman at the agency that creates the campaign, the Martin Agency in Richmond, Va., part of the Interpublic Group of Companies.

The musicians are actual musicians, Ms. Dunn says. One, who portrays Ronnie the mandolin player, is Alex Harvey, a music teacher from Brooklyn “who happened to get cast in an acting role,” she adds.

The other, who portrays Jimmy the guitar player, “is an actor who just happens to play the guitar,” Ms. Dunn says. More information about him can be found here: http://www.timothyryancole.com/#!productions/c1edo

 

     And for pic o’ day, my Mom sent one from the basketball court this weekend. Well, maybe not really from the court.

Final 4

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Beat Virginia’s Life Expectancy?

Monday, March 4th, 2013

     In every injury case that we take to trial, we introduce the life expectancy chart (Virginia Code 8.01-419) for the jury to consider when there is evidence of a permanent injury. It also makes me scan the life chart to see how long the law says that I am expected to live.

     According to the chart, at the start, women live to about 80 and men to about 75. The jury instruction tells the jury to give consideration for the rest of that person’s expected life span life. Of course, many clients lean over and whisper to me, “I’m going to beat that!”.

     I have blogged on this before because I am fascinated by the prediction of the length of life. That’s also why I  have blogged on some who have lived long lives, when they discuss their reasons for long life. I am also interested in articles that discuss how to lengthen your life.  

     The March edition of “Parade Magazine” has an article titled “Do You Have a Longevity Personality?” It postulates that having certain emotional traits or even tweaking your behavior can add years to your life. Here are the three characteristics that the article suggests to boost your life expectancy:

     1. Your glass is half full. A study of those over the age of 97.6 consistently found that they were more optimistic and easygoing than the general population. The article recommends that you daily write down things for which you are thankful and it will help to push away the troubles that create negativity.

     2. You’re everyone’s pal. According to a study by Brigham Young University, having strong social relationships can raise survival rates by more than 50%.  It doesn’t mean that you have to be a social butterfly. You can do simple things like invite friends to lunch or join a book club.

     3. You’re never late. Being detail oriented and responsible is consistently associated with longegivity. Making and using to-do lists.

     Staying positive, friendly and organized makes sense,  but coming from a health magazine also gives credence that they really may be a good life-long idea. I just checked the life expectancy chart. Guess what?  I think that it said that I should be writing this blog another 88 years. Let’s all stick together!

     For pic o’ day, here is a cat’s way of keeping the mailman hopping!

cat in mailbox

 

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Warren Buffett on Geico Profits

Sunday, March 3rd, 2013

USA Today provided some insight on Warren Buffet’s comments last week, after he delivered his letter to shareholders of Berkshire Hathaway. We learned that Buffett was not satisfied with the stock return for the year. He also chided CEO’s of major corporations for failing to be aggressive.

When he delivers his yearly “address”, I am always interested to see any portion of his discussion regarding Geico, which is part of the Berkshire Hathaway holdings.

funny-pig-insurance-ad

This is the pertinent part from his letter:

The insurance business. Berkshire’s insurance operations “shot the lights out last year,” Buffett wrote. The business generated $73 billion of “free money” for the company to invest. “This is truly having your cake and eating it too,” he wrote. “When I count my blessing, I count GEICO twice.”

What Buffet is saying is that Geico is helping them buy other businesses like Heinz Ketchup. I have no issue with profits for business. I understand that businesses create jobs and that’s what keeps the wheels turning. It’s the same at our law firm.

What we can really gather from Warren Buffett is the application of why insurance companies collect premiums… to make a profit. It’s not to pass on profits by charging less to their insureds. This is contrary to silly tort reformer arguments for caps.

In Texas, all the talk was that they needed a malpractice cap of 250K. By doing so, doctors would be charged less for premiums. Now, almost 10 years later, Texas doctors are not getting any reductions (SEE HERE) but the caps remain. All that means is that those responsible for causing injury are passing the expense on to everyone else.

One final thought on the excitement caused by insurance profits. In Virginia, we still have a punishment damage (punitive) cap of $350,000. What that means is that when profits are in the billions, what kind of punishment does that really amount to. Punitive damages are meant to protect the citizens that are effected by the conduct. Unfortunately, businesses are protected instead.

At least Buffett is honest about why. One of my hopes is to have a judge force him to come to Virginia for a deposition to explain the way that Geico handles their claims evaluations in Virginia. I believe that they are needlessly asserting frivolous defenses and clogging the Court system. Maybe his deposition someday soon. I can hope… can’t I?

If you think I am being tough on Geico; then yes… I am. They make me shake my head. No wonder their new mascot is a pig. It seems apropo to me.

This Pic o’ day “note” reminded me of how I believe that insurance companies accept responsibility.

Insurance responsibility

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Battle of the Trial Experts

Monday, February 25th, 2013

     In yesterday’s blog, I wrote about expert testimony in trial.  Last week, Kim Raab and I tried a case in Richmond Circuit Court, where the experts provided different opinion testimony. It was up to the jury to decide the truth.

     Our client’s car was rear-ended, when she was sitting still on Hull Street. The insurance company’s lawyer told the jury that they accepted liability for the cause of the crash… just not the cause of our client’s injuries. So, the case went to the jury on the claim for injuries.

     In these cases, it really comes down to what harms were caused. That includes how long the injuries last. That’s where the experts went different directions.

     My client was treated by an orthopedic doctor, who gave her an injection in her back; but also said that she had a permanent injury. Her chiropractor had tried to treat her conservatively, because her MRI showed a bulging disc at two low-back levels.

     Both the orthopedic doctor and the chiropractor testified that there was really nothing else that they could do for her. She doesn’t feel pain everyday, but the disc bulging can be aggravated by simple activities like sitting or standing for long periods; driving on trips; or trying to do certain exercises or doing too much activity that involves her low back.

     The defense hired a doctor for the sole purpose of coming to court to testify. He did not see or talk to my client and he did not talk to any of the treating doctors. Instead, he did a “record review”. By his own testimony, that placed him in a better position to evaluate the injuries.

     The doctor hired by the defense told the jury that our client had suffered some injury in the car accident, but that all injuries had resolved. He testified that she did not have any permanent injury and certainly did not need any additional medical treatment.

     When I cross-examined this defense doctor, I knew that it would not be smart to attack him on medicine. He was firm in his opinion. The defense had already brought out that he had been hired and paid by them. The defense attorney just tried to make it sound like an independent evaluation.

     I went back to the fact that the doctor had only read the medical records. I hear it often from defense experts, but I still never get their testimony that they are in a better position to give an opinion because they have not seen the client. Something like no emotional tie.

     As in this case, I always then ask the doctor, “Doctor, do you personally have any patients that you have not seen or spoken to, whom you are currently treating?”. Of course, the doctor answered “No” with a smirk. In closing, it again went back to the reality of the double standard of treatment, versus the defense doctor being paid for testimony in trial. It’s one of those moments when you are hoping that the jury is also shining a light on that defense testimony.

light

     When it comes time for the jury to decide its verdict,  they have to decide who is telling the truth. Kim had asked the client during her testimony, to discuss what “permanent” meant in her everyday life. The client discussed issues that included what she could do at work. She also talked about how she has a hard time wearing high heels and now basically only wears flat shoes; or physically pays for it the next day when she wears heels.

Hope

     When I am waiting for the jury to hit the courtroom buzzer to indicate that they have reached a verdict; I am just hoping that they don’t believe the defense doctor.

     I usually don’t talk about the trial result and then I get emails that asked, “So what happened”. The jury came back with a verdict that was more than 10x the settlement offer. That defense doctor was apparently not influential. The jury believed our client.

     For pic o’ day, this is about presentation. Also, this one is for my Mom!

Facebook presentation

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Read it again, Grammy!

Sunday, January 27th, 2013

One of my favorite childhood memories takes me back to my love of a great story. My grandmother used to get her morning coffee and butter raisin toast. Then, she would sit down in her big red chair and I would sit on the right arm of the chair.

She would reach to her left and pick up a story book from the stack of books that were collected next to the chair. Then, she would open the book and begin to read as I would peer over her arm and look at the pictures and words that I could not yet comprehend.

She had read these same books to me over and over so many times, that I could repeat the words verbatim. Still, with exciting voice inflexion and change of voices to match each character in the books; she read them as though it was the first time, and I listened so attentively as though I had never heard this story.

The stories all had some lesson that included some hero. And, of course, there was always a good ending to the story. Then, I would say, “Read it again Grammy, read it again”. She would commence at the beginning again until we would move on to the next book. The only break usually included her getting a refill on her coffee.

Many times before bed, we would be right back to those same stories. Even if we had to take a break for real life things. As I type this blog, it takes me back to such a good feeling of just sitting there, never wanting the Grammy to stop reading.

In Saturday’s HamptonRoads.com, there was a story titled “Job seeker tries to plant seeds at Va. Beach expo”. The story included a picture of a young man standing in front of the display. He is bit out of place at the Virginia Beach Convention Center, where the Virginia Flower & Garden Show is set up.

The many displays on the floor include potted greenery and garden tools. At this one display, a 27-year-old man stands with a table behind him, and a large white sign that says “John Wike/Bachelor Degree-Business Management”. Instead of selling rakes, he is pitching himself for employment; hoping that during the three days of this convention that someone will have a job opportunity for him.

In real life, the end of the story is not always perfectly scripted. Many clients that call me also weave a story of lost wages and lost opportunity. Sometimes on their path of life, they are unable to pursue a career or take a desired job that has been offered. Other times, they miss so much work that their employer either terminates them or they lose some career advancement opportunity.

Part of the damages of an injury claim can include making a claim for lost wages. That claim exists even if a person did have sick time that they could take as a benefit of their employment. The person that hit them does not benefit from the collateral benefit of a sick leave payment.

Virginia also recognizes a claim for loss of earning capacity. Following an accident, a client may be earning more than they were earning before the car crash. However, they may have lost a job or career opportunity that could have provided a better income for their future. For that, the person that caused the crash should also be responsible.

Every day, I hear “stories” about difficulty. Fortunately, I have also seen many good endings, despite the road of difficulty in getting there.

After I read the “Wike story” about how he was seeking a job; I also continued to read the comments that followed. One person commented that they really enjoyed reading the story. Then, they wrote, “please do a followup story on him…. I bet he gets a job soon”. Just like me, they like a happy ending.

In my head, I can still hear my high voice saying to my Grandmother, “Grammy, read it again” and my grandmother turning the book to the beginning and off we go again to a happy ending.

Just for conversation, I still have people ask me about “my holidays”. So, I am posting this pic o’ day that makes me laugh:

 

 

 

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“To the Batmobile!”

Tuesday, January 22nd, 2013

 

 

 

The Original Batmobile

 

 

 

 

 

It’s worth what someone will pay for it. That is the definition of fair market value and we have learned now, what the value is for the 1966 Batmobile.

Last week the original 19-foot-long Batmobile sold for 4.2 million in an auction.  It originally was a 1955 Lincoln Futura concept car that had been transformed into a crime fighting machine.

The car includes lasers and a “Batphone” and could lay down oil slicks to cause problems to any car following it. Plus, it even includes the ability to throw out smoke screens for visibility fighting!

This original famous car was used by Adam West, who starred as the Caped Crusader. His sidekick was Robin, played by Burt Ward; who was known for starting every sentence with the exclamation of “Holy (insert)”. On this it might have been “Holy 4.2 million, Batman!”

This also establishes what the loss of value would have been, if this car had been in an accident. I can imagine that some adjuster would have offered to pay something like 5K “because it’s only a 1955 car”. Fortunately, value is determined by more than what an insurance adjuster may say something is worth. I remind some adjusters of that fact, almost everyday!    Now… to the Batmobile!

For pic o’ day, I never get tired of these kind of pictures! (OK, I will stop with the exclamation points)

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