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You have been in a terrible motor vehicle accident and suffered severe injuries. Your attorney explained to you that you will need to repay Medicare for the medical bills they paid. After negotiations, you have agreed to a settlement amount with the other driver’s insurance company. Your lawyer informs you that the adjustor now says the funds will not be issue without Medicare being listed on the check or a letter from Medicare that confirms the medical lien has been resolved. The adjustor explains his supervisor is concerned that the carrier will be sued by Medicare if the lien is not paid. Your attorney confirms that a settlement with Medicare may take some time. You have bills to pay and just want to get what was agreed to in the settlement agreement. Good thing you are represented by Bordas & Bordas, because we know the law that will force the insurance company to immediately issue the settlement check. Let me share the same with you. First, let me explain why the insurance company might be concerned with being sued by Medicare, if the carrier settles the claim with you. Pursuant to the Medicare Secondary Payer Act ("MSPA"), Medicare is a secondary payer meaning that Medicare can only pay bills not paid by a "primary payer." If Medicare makes a payment and a primary payer is identified, the primary payer must reimburse the United States. 42 U.S.C. §1395y(b)(2). The MSPA identifies an automobile or liability insurance policy as a primary payer. 42 U.S.C. §1395y(b) (2)(A)(ii). This means that if the insurance company has made a settlement payment and it is later discovered that Medicare had already made a payment for the same services or items, the insurance company which paid the settlement amount can be required to reimburse Medicare pursuant to regulations promulgated by the U.S. Department of Health and Human Services to implement the MSPA. Now let’s talk about why the insurance company cannot withhold the settlement proceeds when an agreement was already made without a requirement the check is made payable to Medicare and/or receiving a letter from Medicare confirming the lien is resolved before the money will disbursed. In Pennsylvania, the issue of whether a defendant can withhold payment of a settlement or verdict amount until Medicare issues a no-lien letter or the plaintiff waives future Medicare reimbursements for the injury is controlled by Zaleppa v. Seiwell, 9 A.3d 632. (Pa. Super. Ct. 2010). In Zaleppa, a personal injury case, the jury returned a verdict of $15,000 to be paid to the plaintiff. Id at 633-634. The defendant argued that the trial court erred in denying her post-trial motion that the court either order her to name Medicare, along with the plaintiff, as a payee on the verdict amount, or pay the verdict pending notification from Medicare notifying her that all outstanding liens had been paid. Id at 634. The Superior Court affirmed the trial court’s ruling, holding that the defendant’s statutory obligation under the MSPA to reimburse Medicare was “distinct from Medicare's statutory right of reimbursement.” Id at 638. Furthermore, the court interpreted that the MSPA’s statutory scheme was “not designed to enable private parties to act on behalf of the United States government as ‘private attorneys general.’” Id at 639 quoting Stalley v. Catholic Health Initiatives, 509 F.3d 517, 523 (8th Cir. 2007). The court held that it was Congress’s intent, based express language of the MSPA, “to bestow only the United States government with the authority to recover outstanding conditional Medicare payments.” Id at 639. “The MSPA expressly provides that only the United States government, not a private entity, may file a lawsuit in which the rights of the government are asserted.” Id. The court held that it was Congress' intent that the MSPA would only allow the United States government “to vindicate its own interests in reimbursement,” and that that intent “must be applied throughout the MSPA.” Id. Therefore, the court ruled that the prohibition of private parties acting on behalf of the United States government through the MSPA extended to all phases of litigation. Id. The Honorable Judge R. Stanton Wettick, Jr. of the Allegheny County Court of Common Pleas applied the Zaleppa decision in his ruling on a case with circumstances mirroring our client’s. Wimberly v. Katruska, 25 Pa. D. & C. 5th 532 (C.P. 2012). In Wimberly, plaintiff’s claims were settled for $9,000 in a telephone conversation between counsel. Id at 533. The defendant argued that, as a matter of law, the insurance company was entitled to withhold payment of the settlement until Medicare issued a no-lien letter, so as to avoid potential double payment. Id. Plaintiff petitioned the court to enforce the settlement. Id. Judge Wettick ruled that Zaleppa controlled the dispute, and that the defendant’s argument thatthe insurance company was entitled to withhold payment until Medicare issued a no-lien letter was “ without merit.” Id at 535. Critically, Judge Wettick found that “ unless there is a specific agreement conditioning payment on a no-lien letter, it is a matter of contract law that a defendant cannot subsequently raise new conditions regarding the payment that the defendant agreed to make.” Id. Judge Wettick then turned to the defendant’s second argument in opposition to Plaintiff’s Petition to Enforce Settlement, which was that prior to agreement being reached, the parties agreed thatpayment would “be conditioned on plaintiff's counsel obtaining documentation from Medicare stating whether plaintiff is currently receiving Medicare benefits and what, if any, benefits were paid that were related to the accident.” Id at 536. Plaintiff’s counsel denied having ever agreed to such a condition. Id. Judge Wettick applied the same analysis he used in a similar case, Exp. Boxing & Crating, Inc. v. Tech Met. 56 Pa. D. & C.4th 393 (C.P. 2001)(where the parties stipulated that a deal had been reached, and that the terms in dispute, “pro rata release” and “pro tanto” had never been used in any discussion). Id at 537. Ruling that the settlement agreement was a contract governed by general rules of contract interpretation, Judge Wettick held that “he common expectation is that a defendant will promptly pay the settlement amount.” Id at 538-539. Following that logic, Judge Wettick ruled that, “since the only dispute was over whether payment of the agreed-upon settlement amount was conditioned upon defendant’s receipt of a no-lien letter ,” the defendant had the burden of proving the same. Id. This is directly applicable to our hypothetical case. The MSPA prohibits private defendants from acting on behalf of the United States government during any phase of litigation. In Zaleppa, the Superior Court of Pennsylvania applied the MSPA to the post-trial phase of litigation by affirming the trial court’s denial of a defendant’s motion to add Medicare as a payee to the jury verdict. At the Allegheny County Court of Common Pleas, Judge Wettick applied Zaleppa to a settlement agreement, finding that, as a matter of law, the defendant was not entitled to withhold the settlement payment because he had not received a no-lien letter. Critically, Judge Wettick found that “unless there is a specific agreement conditioning payment on a no-lien letter, it is a matter of contract law that a defendant cannot subsequently raise new conditions regarding the payment that the defendant agreed to make.” Our hypothetical case perfectly mirrors Wimberly v. Katruska. During negotiation, there was no mention of a Medicare set-aside. The adjustor added this as a condition for payment after the agreement was reached. Therefore, it would be the carrier’s burden to prove that payment of the agreed-upon settlement amount was conditioned upon receipt of a Medicare set-aside. Once again, Bordas and Bordas would make sure the justice is achieved swiftly and the money would immediately be issued the client.

We are told from a young age that exercising enhances or maintains our physical fitness and overall health and wellbeing. Although these words of wisdom are repeated on a daily basis by those in the health and fitness industry, the constant repetitiveness of the saying can fall on deaf ears. However, this principle should not be forgotten, especially for those that engage in travel on a regular basis or have a daily commute. The reason for this being that when motorists are involved in an automobile accident, the most common injury that will be sustained is a whiplash type injury to the neck and back in which the muscles and ligaments are stretched due to sudden movements imposed on the body during the collision. While preventing injury completely may not be possible, motorists may improve their chances of suffering a less serious whiplash type injury by exercising. Specifically, by engaging in strength training, muscles, tendons and ligaments learn to undergo a certain amount of stress before becoming injured. Thus, when one’s muscles, tendons and ligaments are used to dealing with a certain amount of stress, the body will not become as severely injured when faced with such a sudden movement, such as whiplash, as compared to other individuals whose muscles are not trained or prepared to undergo any stress whatsoever. Although this may not always be the case, it is true that being physically fit can improve your chances of suffering from a less significant injury when involved in an automobile accident. Likewise, engaging in exercise after being permitted to do so by your doctor after an accident may help speed one’s recovery time. For example, engaging in stretching exercises is known to keep scar tissue from forming as your body heals. Moreover, engaging in exercise is a great way to help your body deal with inflammation which ultimately may speed your recovery time. In sum, although each accident and injury sustained is unique-it is true that by engaging in exercise on a regular basis you may help your body recover in the long-run if you are involved in an accident at any point thereafter.

It is not unusual for a person to experience some sort of stress reaction, such as: upsetting memories, having trouble sleeping, or feeling on edge after witnessing or experiencing a traumatic event. Often, a person’s initial reaction to trauma meets the criteria for Acute Stress Disorder (“ASD”) immediately after experiencing a traumatic event. An estimated 13 to 21 percent of survivors of car accidents develop acute stress disorder and between 20 and 50 percent of survivors of assault, rape or mass shootings develop it. However, if the person’s reaction doesn’t go away over time or disrupt a person’s life, that person may have developed Posttraumatic Stress Disorder (“PTSD”). PTSD is a mental condition that some people develop after experiencing or witnessing a life-threatening event. ASD is different from PTSD in that symptoms of ASD are restricted to a duration of three (3) days to one (1) month. About half of people with ASD go on to have PTSD. A diagnosis of PTSD is made by using the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5 th Edition, commonly referred to as the DSM-5. Those criteria are as follows: Criterion A: Stressor (one required) – the person was exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, in the following way(s): Direct exposure to traumatic event; Witnessing the traumatic event as it occurred to others; Learning the traumatic event occurred to a relative or close friend; Indirect exposure to aversive details of the trauma, usually in the course of professional duties (e.g., first responders, medics). Criterion B: Intrusion Symptoms (one required) – the traumatic event is persistently re-experienced in the following way(s): Unwanted upsetting memories; Nightmares; Flashbacks; Emotional distress after to exposure to traumatic reminders; Physical reactivity after exposure to traumatic reminders. Criterion C: Avoidance (one required) – avoidance of trauma-related stimuli after the trauma in the following way(s): Trauma-related thoughts or feelings; Trauma-related reminders Criterion D: Negative Alterations in Cognition and Mood (two required) – negative thoughts or feelings that began or worsened after the trauma in the following ways: Inability to recall key features of the trauma; Overly negative thoughts and assumptions about oneself or the world; Exaggerated blame of self or others for causing the trauma; Negative affect; Decreased interest in activities; Feeling isolated; Difficulty experiencing positive affect. Criterion E: Alteration in Arousal and Reactivity (two required) – trauma-related arousal and reactivity that began or worsened after the trauma in the following ways: Irritability or aggression; Risky or aggression; Risky or destructive behavior; Hyper vigilance; Heightened startled reaction; Difficulty concentrating; Difficulty sleeping. Criterion F: Duration (required) – symptoms last for more than one (1) month. Criterion G: Functional Significance (required) – symptoms create distress or functional impairment (e.g, social, occupational). Criterion H: Exclusion (required) – symptoms are not due to medication, substance abuse or other illness. Symptoms of PTSD often begin within the first three (3) months after the traumatic event, although there may be a delay of several months or even years before the criteria for the diagnosis are met. PTSD affects approximately 3.5 percent of U.S. adults, and an estimated one in 11 people will be diagnosed with PTSD in their lifetime. The duration of PTSD symptoms varies with complete recovery within three (3) months occurring in approximately 50% of adults, while others remain symptomatic for more than twelve (12) months and sometimes for more than fifty (50) years. PTSD is associated with high levels of social, occupational and physical disability, as well as considerable economic costs and high levels of medical utilization. If you or someone you know has experienced a traumatic event and meets the criteria listed above, it is important for them to get the treatment they need. Generally, the earlier a person gets treatment, the better the likely outcome. www.psychiatry.org/patients-families/ptsd/what-is-ptsd www.media.eo.va.gov/ptsd/mp4/what_is_ptsd.mp4 National Center for PTSD, www.ptsd.va.gov/understand/what/index.asp DSM-5, Posttraumatic Stress Disorder, Development and Course, P. 277. DSM-5, Posttraumatic Stress Disorder, Development and Course, P. 276. www.psychiatry.org/patients-families/ptsd/what-is-ptsd DSM-5, Posttraumatic Stress Disorder, Development and Course, P. 277. DSM-5, Posttraumatic Stress Disorder, Functional Consequences of Posttraumatic Stress Disorder, P. 278.

As most of us know, we live in a world where people have become dependent on Uber or Lyft to get us from one place to another. However, the question then arises – what happens if I am in an accident while riding in an uber or lyft. Many people are unsure what to do if they are in an accident while placed in this type of situation. However, the preliminary steps as to what to do after an accident of this type are generally the same as if you were in an accident while in your own vehicle. The below is an overview of the various steps you may want to take if involved in an accident while a passenger in an uber or lyft: Make sure you and everyone else involved in the accident are ok; Call 911 so that an accident report may be completed and further, if there are serious injuries, so that emergency responders can quickly get to the scene of the accident; Take pictures of the accident and the vehicles involved, even if the vehicle does not belong to you; Obtain all of the relevant information of the individuals involved. Although the app you are using will likely give you general information about your driver – it is important to get their contact information and personal auto insurance information as well; Contact your insurance company to inform them of the accident if you are injured and to make a claim to determine what benefits, if any, are available to you. Most importantly, you want to determine whether you have medical payment coverages under your own policy. Medical payment coverage generally will pay for medical costs up to a certain amount after you are injured in a car accident regardless of who is found at fault for the accident; File a claim with the other driver’s insurance company if that party is at fault for the accident; File a claim with your Uber or Lyft driver’s personal auto insurance company to determine if any insurance coverage is available to you under this policy; File a claim with Uber or Lyft as your driver’s personal automobile insurance policy may not provide coverage for the accident. According to recent news articles, both Uber and Lyft carry $1,000,000.00 in both liability insurance coverage and in underinsured/uninsured coverage. In sum, the general steps you want to take if you are involved in an accident while a passenger in an uber or lyft are not terribly drastic from the steps you would take if you were involved in an accident while driving your own personal vehicle. Make sure to remain calm and to seek out an attorney if you have any questions or need help with representation when dealing with the various insurance companies involved.

You have been involved in a motor vehicle crash involving a commercial motor vehicle!!! It was not your fault!!! The following are three of the most important records you can obtain after a truck wreck. First, request a copy of the police report. When a police officer arrives at the collision scene, they open an official police report and begin documenting the investigation. Often, their initial work at the scene involves gathering basic facts like the drivers’ identities, the vehicles involved, and insurance information. The police report should also list witnesses, record whether anyone required emergency medical attention, and document where they went for treatment. The officer may also come to an initial conclusion about why the crash happened and take down any statements given by witnesses. Second, To supplement the police report, you should also obtain the police department’s open records regarding the crash. This can provide additional information, including when officers first received word of the crash, the names of any officers who responded, and a record of the radio dispatches that occurred while the police department identified the vehicles and mobilized a response. This information will prove especially helpful if the police report contains inaccuracies or errors. You should also contact the emergency department that received the initial 911 call and request their transcripts. These records can help identify potential witnesses who may have left the scene before police arrived, among other useful information. Finally, get a copy of any reconstruction report. Although police officers have some training that can help them determine the causes of a crash, they aren’t experts, and their opinion is far from the final word in a truck crash case. Sometimes police may bring what is known as a reconstructionist  to the scene. This is especially likely when the wreck involves multiple vehicles or other complexities. Since these investigators specialize in determining the causes of truck and bus collisions, they can conduct a more thorough inspection based on their extensive knowledge of collision dynamics and of Federal Motor Carrier Safety Administration (FMCSA) regulations. If one of these investigators visited the scene of the crash in your case, their report will be extremely important for your claim. Data from the truck itself can play a critical role in supporting your claim. Physical and electronic data from the truck can help build a fact-based account of the crash and cut through conflicting witness statements or dishonest defenses from the truck driver, their employer, and the insurance company. To make sure this data is available, it’s important to preserve the truck’s event data recorder (EDR), also known as a “black box.” A truck’s black box can give you in-depth information about what the truck was doing just before the wreck occurred, including: How fast the trucker was going and variations in speed The truck’s gear shifts When the trucker braked How long the trucker had been driving The truck’s GPS location Communications between the trucker and trucking company Reports filed by the trucker, including daily inspection reports Besides the black box, most commercial trucks contain electronic logging devices (ELDs) and other computer systems that can yield further important information to support a truck wreck claim. However, you can’t rely on the trucking company to preserve this critical evidence, which is why you should always contact an experienced truck accident attorney after a collision involving a large truck or bus.

In the case of Kirkpatrick v. Geico Casualty Company the US District Court for the Western District of Pennsylvania, allowed the question of damages related to the plaintiff’s destruction of earning capacity claim to be submitted to the jury, despite the fact that the plaintiff could not show any loss in business income. The case involves a first party claim for underinsured motorists’ benefits filed by Ronnie Kirkpatrick and his spouse, Michelle Vensel. At the time of the motor vehicle accident, Mr. Kirkpatrick owned car restoration businesses; however, he had not completed restoration and/or sold any cars by the time of the automobile accident. On the contrary, in the years leading up to the incident, he had only reported losses to the Internal Revenue Service. At trial, Mr. Kirkpatrick testified about his injuries caused by the accident, and how those injuries impacted his ability to perform the manual labor necessary to complete the car restorations and/or sell the cars. Mr. Kirkpatrick’s spouse and business manager, Ms. Vensel, testified based upon the business’ records, it would be reasonable to conclude that the Mr. Kirkpatrick’s businesses’ net loss approximated $2.1 million. At the conclusion of the plaintiff’s case, Geico asked the court to strike Mr. Kirkpatrick’s past/future loss of earnings claims based on the fact that there was no evidence of lost revenue. The court disagreed, stating that the plaintiff submitted sufficient evidence to get the question of whether he sustained a destruction of earning capacity as a result of the automobile accident. Thereafter, Geico’s expert accountant testified that based upon reasonable certainty, Mr. Kirkpatrick did not lose any monies as a result of the car crash. On a side note, Geico attempted to introduce of Mr. Kirkpatrick’s smoking history stating that it was relevant because it would have an adverse impact on his future damages’ claim; however, the court disagreed stating that there was no expert testimony to show that Mr. Kirkpatrick’s work/life expectancy was affected by his past/current smoking history. Moreover, during a break in the trial and outside the presence of the jury, the trial court warned plaintiff’s counsel that during the testimony of Geico’s expert, Ms. Vensel was acting inappropriately, i.e. finger wagging, head nodding, big smiles, head shaking left to right, etc., which was a “no-no.” Upon the conclusion of the presentation of the evidence, the jury awarded Mr. Kirkpatrick $650,000 for past lost earning capacity, $1,820,000 for future lost earning capacity, and $500,000 for past, present, and future pain and suffering, embarrassment and humiliation, and loss of enjoyment of life; and, awarded Ms. Vensel $250,000 for loss of consortium. Following the trial, Geico sought a new trial arguing that the jury’s award for past/future damages was against the manifest weight of the evidence. Geico also argued that the trial court erred in disallowing Mr. Kirkpatrick’s smoking history. Finally, Geico argued that Ms. Vensel’s conduct during the trial was prejudicial to Geico and warranted a new trial. Regarding plaintiff’s loss of earnings claims, the court cited PA Supreme Court law, which holds that damages for loss of earning capacity arise out of an impairment of that capacity, and not out of a loss earnings. Here, the court determined the fact that plaintiff could not demonstrate a loss of income or profits up to the time of the accident was for the jury to consider but was not dispositive as to whether due to his car wreck related injuries, he sustained a loss of earning power. Moreover, the court held that the jury’s verdict for past/future wage loss was not “unduly” speculative as to warrant vacating the award. Regarding, the evidence of plaintiff’s smoking history, the court held that a smoking habit unaccompanied by any competent medical evidence that such habit reduces a particular individual’s life expectancy has little probative value. Therefore, it the court’s view evidence of plaintiff’s smoking history was both prejudicial and potentially confusing for the jury and outweighed the probative value of the evidence. Finally, with respect to Ms. Vensel’s conduct at trial, the court noted that Geico’s counsel did not raise the issue during the trial, and in fact it was the court’s staff that brought the matter to the court’s attention. More importantly, Geico did not poll the jury on whether they noticed Ms. Vensel’s conduct and/or what, if any, her conduct had on their deliberations. Moreover, Geico did not seek a special jury instruction as a result of her conduct. As such, there was not clear and convincing evidence of an adverse party’s engagement in misconduct to warrant a new trial.

If you cannot resolve a dispute with a business or person and the amount in controversy is less than $10,000, you may want to look at filing your case in Magistrate Court. Every county in West Virginia has at least 2 magistrates. Some larger counties have more.  Magistrates are elected and do not have to be lawyers. When deciding whether to file your case in Magistrate Court, the following are some questions you may want to consider: 1. What kind of case do I have? – (i.e., is it criminal or civil) 2. Can I resolve my issue without going to court? – (i.e., can I talk with the person/business and come to an agreement before filing suit) 3. Can I handle my case without a lawyer? – (i.e., do I have questions about the process that I don’t understand, do I have questions about the amount in controversy, etc….) Some of the types of cases that can be filed in Magistrate Court are landlord tenant disputes, contractual disputes, property damage disputes, etc….  However, remember the amount in controversy must be less than $10,000.  Once you’ve considered some of these questions and decided to file suit in Magistrate Court, you should contact the magistrate office to obtain the necessary filing forms. Finally, remember, if you are unsure as to whether you should file in magistrate court or just feel unsure about the process, it is probably a good idea to initially consult with an attorney.  Often times they can be very helpful in determining if magistrate court is appropriate for your situation.

Unfortunately, or fortunately, depending how you look at it, chances are most people reading this blog are not an attorney. If you are one of those readers who are not an attorney, you would be well-advised to heed the following warning: “It is NEVER, EVER, EVER, EVER too early to investigate the need for and/or retain an attorney for a legal matter.” That is not to say you need to retain an attorney for every legal matter. There are matters that are so minor an attorney is not needed, the paper cut caused by a defective envelope. However, you should, at the very least, investigate the need to retain an attorney if there is any substance to the situation. This is especially true for any claim that will fall under a contingency fee agreement (the lawyer will not charge a fee or costs UNLESS a recovery is made on your behalf). In a matter involving a contingency fee you have nothing to lose and everything to gain by hiring an attorney. This article will focus on why it is imperative that any who themselves  or whose loved one has been mistreated by an insurance and/or an oil company, was injured in motor vehicle accident, dog bite, slip/trip and fall, or explosion, at the hands of a medical professional, or is physically or emotionally injured in some other event, to IMMEDIATELY contact an attorney. Five of the countless reasons why you should immediately investigate and/or retain an attorney when harmed by another party are: 1) No fee or costs will be charged unless a recovery is made on the client’s behalf. The fees in a contingency matter are only a percentage of what is recovered. The attorney will be entitled to be reimbursed litigation costs only if there is a recovery. Thus, the client can be assured they will never have to pay anything out of his or her pocket, regardless of whether the attorney can help or not; 2) Locations can change, memories do fade, and evidence may be lost on every minute of every day after an incident. I have been involved in a number of cases in which the location of the accident is changed either by outside factors or parties involved in the matter. For example, a property owner may change the defect to try and deny the defective condition existed on the property or may remove it to prevent others from being injured. I have had the location of motor vehicle accidents changed by a pre-scheduled alteration by Penn DOT, which was not always a party to the case. I had cases in which Penn DOT had been scheduled to repave the road, change the traffic signs and make other changes to an accident scene before the incident in question ever occurred. Whether the changes were intentional or not, the changes will impact the injured party the most. This is because the injured party has the burden of proof. Thus, if you are trying to proof a sidewalk was defected on a property, not only do you need to be able to show the defect existed on the day of the incident, but you must establish the specifics of the defect. For example, a height difference caused by a shift in a concrete slab may or may not be a legal defect, depending on the size of the height difference. If the defect is fixed by the property owner who has had no notice of the fall before photographs and/or measurements can be taken, you will likely lose that case if you are not able to proof what the existing height difference was at the time of the incident. Additionally, you will want to get statements from witnesses, because memories DO FADE over time. Even when the witness wants to be helpful, they simply can’t because the memory has faded and changed over time. In most cases, the witness statements will prove invaluable with a witness whose memory has faded innocently and can be refreshed by the statement or will help with a witness whose memory has “conveniently” faded over time but is confronted with the statement given soon after the incident. I have clients and tortfeasors lose and/or destroy evidence before my involvement, unknowingly and knowingly, which could have huge ramifications on the case. If the tortfeasors are not put on notice of the claim, the destruction and/or loss of the evidence may have no impact on them at all, although they lost or destroyed evidence. Thus, it is imperative to get an attorney involved early on to make sure the evidence is properly preserved; 3) Everyone else’s rights are being protected but yours are not. Generally, the other party’s rights and interest will be protected by their insurance company. The tortfeasor, the party that caused the harm, and his/her insurance company have the same motivation and interest; to limit the total amount of your recovery. They are united in their goal to take whatever steps necessary to limit and/or completely eliminate any recovery on your behalf. The insurance company doesn’t want to have to pay a claimant any money and their insured, the tortfeasor, will be concerned of its own personal liability over the amounts of the available insurance. Even with a party that you would think will look out for you, they may not. For example, a person injured on a third party’s property while in the scope of the job cannot assume their employer will look out for them. This is true even though its employees have been injured trying to make a profit for the employer. The employer may be concerned with a worker’s compensation claim or its own potential liability to third parties involved in the same incident. Even an injured party’s own insurance company can’t always be trusted to protect the injured party’s interest at times. For example, in a car accident, an injured party who has UIM/UM coverage can’t expect its insurance carrier to protect the clients’ interest. With UIM (Underinsured Coverage), the injured party’s insurance company will be liable to its injured insured for any amount of damages over the tortfeasor's liability policy. Thus, the injured party’s insurance carrier will be motivated to insure the insured’s injuries are limited and/or lessened, so that the value of the injuries/damages are less than the amount of the tortfeasor’s insurance coverage. I have had cases when the matter is being investigated by independent parties that still show the need to hire an attorney early in the case. I have received police reports that concluded incorrectly that my client was at fault for the incident. In one case, the police improperly calculated the speed of my client’s vehicle in their investigation. Photographs of the scene taken by our investigator within days of the incident offered evidence as to the correct length of our client’s skid mark, which supported our position that the police had used an incorrect length for the skid mark to calculate my client’s speed. In another case, the investigating officer didn’t do a thorough investigation and didn’t discover an independent witness who offered evidence a truck driver was not providing correct information to the investigating officers. Before the independent witness was discovered, the police incorrectly conclude my client was at fault for the incident that killed him. However, unlike all of the above examples, an attorney hired for an injured party will make sure to protect the party’s interest. That is insured because the contingency agreement confirms that the attorney receives a percentage of the recovery on behalf of the injured party. Thus, the higher the recovery to the client, the more the attorney will receive. I can assure you that I and the other attorneys at our firm are driven to get our client’s the best result possible because of the trust the client has placed in us, our pride to do the best job possible and/or our completive drive not to lose. For those of you who are reluctant to think that statement is nothing more than some kind of cheesy sales pitch, I can only assure you that is what drives the attorneys at this firm and remind you that regardless of the same, the contingency agreement confirms that an attorney will be driven to get the client the best result possible;   4) There is no such thing as an “open and shut case.” Very seldom do people admit they are at fault once the dust settled. I can’t count the number of times my client said: “Don’t worry this is an open and shut case. The other side admitted to me this was their fault,” or something similar. Often, the police report doesn’t reflect the same or once the person understands that they are liable for any recovery over the amounts of their insurance coverage or they think they could lose their job because of the incident etc., they become far less forthright. Soon thereafter, that “open and shut case” becomes a heated and contested claim, and evidence that was not collected because it was an “open and shut” case is lost forever; and 5) There is no such thing as an “open and shut case,” even in “open and shut cases.” Some aspect of virtually every claim WILL BE CONTESTED, even when most of the facts are not at issue. I can’t count the number of times I had to ask a client why they didn’t get an attorney sooner, while I explained the negative impact of the same. They almost uniformly say that the other side admitted to the police it was their fault or they admitted certain facts that show their fault, only have the other sides insurance company dispute liability and point to other factors to raise an issue of liability. Thus, the other sides insurance company has progressed knowing its intention to dispute liability and collected the evidence to support its version. However, the injured party sat back waiting to be paid for the injuries damages they suffered, because, after all the other side “admitted it was their fault.” Additionally, even when the police report, defendants’ accident report, the OSHA investigation or some other investigational agency finds the other entity at fault or the other side and their carrier admits fault, that doesn’t mean it is an “open and shut case.” There will be other issues. For example, the issue of the extent of the damages. One might wonder how the other side can contest the injured party suffered a broken leg when the bone was sticking out their leg at the scene and the x-ray showed there was a fracture to the leg. Even in a case where the liability and the injuries suffered are conceded, there still is not an “open and shut case.” The impact on the client are routinely contested. I have had countless clients examined by doctors hired by the opposing counsel or insurance company. Of all the hundreds of exams I can recall, only a handful of times did the opposing doctor agree with the treating doctor as to the extent of the injuries and only one or two agreed on the impact of the same. Even in those cases, when the doctors agreed to the impact of the injuries, the issue of what is fair compensation to my client was disputed. I can assure you the dispute was not that the insurance company was willing to pay my client too much. Insurance companies are not known to open their checkbooks and ask people who have been severely injured what would be fair value for the claim. I have always had to wonder if the adjustors would have thought the fair value for the stranger their insured injured would be the same if the same person injured one of the adjustors’ own loved ones. This is not rhetorical question; the answer is they do not. Thus, in order to be able to get fair compensation for a client, we have to start preserving evidence of the damages right away. The opportunity to photograph and demonstrate the progression of scar is lost as time passes. The ability to video the day to day impact an injured leg had on a person is lost as the recovery of the injured leg progresses. Thus, one wants to have an attorney involved very early, even in those “open and shut cases.” The above are just five of many reasons why you should immediately investigate and look to retain a lawyer immediately following an accident. In a perfect world, we could all rely on a number of things when we are harmed or injured. We could rely on the other people in our community to accept responsibility for their actions. We would be able to rely on the insurance companies to fulfill the obligations to fairly and reasonably pay the claims of the injured people. We could rely on others to treat us as we would treat them. We could rely on nothing to impact our claims, such as a malicious intent to destroy evidence or an innocent change of evidence. We could rely on investigators to be perfect in their investigation. However, this is not a perfect world, so it is NEVER, EVER, EVER too early to retain an attorney after you are injured or harmed by somebody else, because by not hiring an attorney early on a client has everything to lose.

A Standard Flood Insurance Policy under the National Flood Insurance Program (“NFIP”) pays only for the physical damage to your insured property that is “directly” caused by a flood. The amount of payment is determined by either the replacement cost or actual cash value of the damaged property, up to the policy limit. The NFIP offers two types of coverage for homeowners: building property coverage up to $250,000 and contents coverage up to $100,000. Replacement cost is the cost to repair or replace that part of a building that is damaged without regard to depreciation. Actual cash value is the replacement cost value, less depreciation for physical wear and tear. In order to qualify for replacement cost, your home must be a single family dwelling; your home must be your principle residence at the time of loss, meaning you live there 80 percent of the year; and your amount of flood insurance for building coverage must be at least 80 percent of the full replacement cost of your home, or be the maximum amount of insurance available for the property under the NFIP. Personal property is always adjusted at the actual cash value. The following items are covered under a standard building property policy: the insured building and its foundation; the electrical and plumbing systems; central air conditioning equipment, furnaces, and water heaters; debris removal; refrigerators (unless located in a basement), cooking stoves, and built-in appliances; permanently installed flooring (including carpet), paneling, wallboard, bookcases, and cabinets; window blinds; and detached garages (up to 10 percent of building property coverage). All other detached buildings require a separate policy. Personal property coverage protects personal belongings such as clothing, furniture, electronic equipment, curtains, portable air conditioners, portable microwave ovens, portable dishwashers, washers, dryers, food freezers (and the food in them), and certain valuable items such as original artwork and furs (up to $2,500). Neither type of policy covers precious metals, currency or valuable papers such as stock certificates. There is also no coverage for outside belongings such as trees, plants, wells, septic systems, walks, decks, patios, fences, hot tubs, and swimming pools. Likewise, there is no coverage for living expenses such as temporary housing or financial losses caused by business interruption or loss of use of insured property. Unfortunately, there are number of exclusions to consider as well. For example, there is an exclusion for “loss caused directly by earth movement even if the earth movement is caused by flood.” Similarly, damages caused by a sewer backup is only covered if the backup was a direct result of flooding. Many items located in a basement, including bookcases, window treatments, carpet, TVs, and audio systems are not covered. Perhaps, most importantly, damage caused by moisture, mildew, or mold that could have been avoided by the property owner is excluded from coverage. Therefore, a property owner must take prompt action to mitigate damages following a flood. Keep in mind if you feel you have not been treated fairly by your insurer following a flood, you have only one year from the date a notice of disallowance or partial disallowance of your claim was mailed to you to file a lawsuit in federal court. Caution should be taken even if you are having ongoing discussions with your insurer as this time limitation is likely to be strictly enforced by the courts. Accordingly, you should contact counsel promptly after receiving a notice of disallowance that you believe is unfair.

Recently, I have become very humbled by a couple acts of kindness that I witnessed first-hand. It was a nice reminder that kindness, even among strangers, does still exist. The day before Thanksgiving I was a part of the “Rocking the Kettle” at the Mt. DeChantal Kroger for the Salvation Army. It was humbling to see how many people made it a point to give. Some even shared a quick story or two, and one particular gentleman told me how the Salvation Army provided for him and his family when he was growing up countless times and now that he is able to give back, he makes it a top priority. Acts of giving passed through in those few hours countless times… from the elderly to the very young, all walks of life. I had a very nice surprise when a very young boy and his father brought us out a hot coffee to warm us up for volunteering our time to help out. Nothing more humbling than a warm coffee and a hug from a very young kid as an act of kindness. A few days later, a gentleman paid for my order at a local drive thru. When I reached the window to pay, the employee told me the man in front of me had paid for me. On a day when I was rushing, not in the best mood and my commute to work was not going so good, it was just what I needed to turn my mood around and be reminded that the littlest acts of kindness go a very long way. You can believe I will pay it forward and I hope those of you reading this will have your faith in kindness restored and pay it forward too!

Litigation involving a tractor-trailer/commercial motor vehicle is sometimes complicated as they involve multiple legal issues, various facts/circumstances surrounding the occurrence and a complex interaction of state and federal law. Due to the nature of many of these cases involving a much larger commercial motor vehicle, most involve significant damage claims such as death, catastrophic injuries (e.g., lost limbs) and/or complex injuries (e.g., brain trauma). Due to the high stakes and complexities involved in commercial motor vehicle cases, they can be among the most sophisticated and gratifying cases a lawyer can handle. We at Bordas and Bordas regularly handle cases involving all kinds of commercial motor vehicles.  We are well versed in the federal requirements governing the trucking industry and the necessary training truck drivers should be provided by their employers. We constantly preach the need rapid action when it comes to handling these kinds of cases. I was a defense lawyer for over 15-years and represented commercial carriers in catastrophic loss collision throughout the United States. I have firsthand knowledge that trucking companies, their insurance carriers and their attorneys understand the need for swift action, as it is the norm for defense lawyers in the trucking industry to actively market their ability to place a “rapid response” investigation team at the collision site as soon as the truck company or insurer reports the loss. I found myself, on more occasions than I want to admit, getting a telephone call moments after a catastrophic collision and being retained by a trucking company to investigate the collision, retain an investigator to speak to witnesses, interview our driver, preserve evidence and retain an expert to immediately visit the scene and inspect the involved equipment. I knew everything about the collision within hours after it happened and knew the intricacies of the truck driver’s actions within 24-hours. Doesn’t that place the trucking company at an advantage if litigation is necessary? The short answer is, YES!!! As soon as Bordas and Bordas agrees to represent a client who has been injured in a truck accident, we work to discover as much as possible about the facts of the accident. The availability and accuracy of information quickly deteriorates after an accident, therefore an extremely expeditious information gathering process is critical. I implement the same strategy that I did as a defense lawyer, and if we are called early enough, we are typically successful at getting the necessary evidence preserved before it can be destroyed. If you or a loved one has been injured in a collision involving a commercial motor vehicle, please immediately call us and we will immediately begin our efforts to preserve necessary evidence to assist in prosecuting your case. Image courtesy of Unsplash.

If you are planning to travel, be aware that your decision to purchase travel insurance may be more significant than you think. Specifically, recent news reports have brought to light two class action lawsuits that were recently filed against Delta and JetBlue with regard to the travel insurance purchased by their customers. The allegations within these lawsuits provide that JetBlue and Delta “aggressively push customers to add ‘travel protection’ to online ticket purchases for an additional fee. What the airlines don’t say, the suits claim, is that they’re getting a cut of the profits despite not being licensed to sell insurance.” See Erin Gilmore, JetBlue, Delta Receive Unlawful Kickbacks for Selling Travel Insurance, Class Actions Claim. alt="" width="4032" height="3024" />The class action lawsuit filed against JetBlue is currently pending in the United States District Court for the Southern District of Florida. The allegations against JetBlue state in pertinent part as follows: “JetBlue proceeds to conceal its financial motivation in pushing the product by disclaiming its role in the trip insurance policies being sold on its website. Specifically, below the marketing language is the following language: Recommended by AGA Service Company, the licensed producer and administrator of this plan. Terms, conditions and exclusions apply, learn more. Plan underwritten by Jefferson Insurance Company or BCS Insurance Company.” JetBlue’s website thus represents to the consumer that it is AGA Service Company, and not JetBlue, who is recommending the trip insurance and who is “the licensed producer” for the trip insurance policies. A “producer” is insurance parlance for an insurance agent or broker, i.e., the one who makes a commission on the sale of insurance. Thus, by stating that AGA Service Company is “the” producer, JetBlue represents that it is not acting as an agent or broker, i.e., it is not making a commission on sales of trip insurance policies.  In fact, JetBlue cannot sell insurance to the consumer (and thus cannot receive commissions on sales) because it is not licensed as an insurer or insurance agent in Florida or anywhere else. Like Florida, other states across the country prohibit the unlicensed sale or brokerage of insurance, including the receipt of commissions by people or entities without a license.” There are numerous examples that the class action lawsuit points to demonstrating that JetBlue has engaged in unfair and deceptive trade practices, and further, that JetBlue has been unjustly enriched as a result of these deceptive practices. It will be interesting to see JetBlue and Delta’s response to these class action suits and whether such actions will be brought forth in other district courts in various states across the country. One thing is for certain, it is always important to read the fine lines when making any type of contractual decision; and further, that if you are purchasing trip insurance that you make sure you understand the coverage that is provided to you as well as who benefits from your purchase and whether they are legally entitled to do so. Image courtesy of Unsplash.