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Business and golf go together like butter and popcorn. Like business, though, it helps to know your golf. And this past January, a very old rule was changed for those hitting the fairways. Did you know it’s now OK to putt with the pin in and even knock your ball against the flagstick? Beginning last Jan. 1, that’s exactly the case. Before this year, hitting the flagstick with your ball from on the green resulted in a two-stroke penalty. The new rule, though (to be specific, USGA Rule 13.2a(2)) says, “There will no longer be a penalty if a ball played from the putting green hits a flagstick left in the hole.” Players will still have the option to remove the flagstick or to have someone tend the pin and remove it after the ball is struck. But the USGA has been concerned about pace of play, thus the change. Also, most players these days don’t use caddies. On the PGA Tour, players like Bryson DeChambeau have already left the pin in. So, know your rules. Post your lowest score. And, maybe, just maybe, earn a little business while doing so.

In the biggest blow yet to Bayer/Monsanto, this week a California jury rendered a $2 billion (with a “B”) verdict to a husband and wife who both contracted non-Hodgkin’s lymphoma as a result of their use of and exposure to Monsanto’s Roundup glyphosate-containing herbicide. This verdict represents the third verdict for injured plaintiffs in the three cases that have gone to trial thus far. Thousands more of such cases are currently awaiting trial. Next up is a trial scheduled in August in Monsanto’s former back yard, St. Louis County, Missouri. This latest verdict comes on the heels of a March decision, in which a San Francisco jury decided an $80 million verdict for a man who blamed his cancer on his extensive use of Roundup, and an August 2018 decision where another San Francisco decided a $289 million verdict to a single plaintiff. On appeal that verdict was reduced to $78 million, and legal experts believe that this most recent verdict will likely be substantially reduced on appeal as well. Bayer/Monsanto are, of course, appealing each of these verdicts and toeing the company line that Roundup does not cause non-Hodgkin’s lymphoma, but it is important to remember that these companies have pulled out all the stops trying to protect their cash cow, from ghostwriting editorials that Roundup is safe to hiring the best legal resources money can buy. On top of that, Bayer/Monsanto maintains strict control over the “proprietary” nature of its Roundup product, making scientific analysis of the precise mechanisms of injury caused by the synergistic impact of the various chemicals in it exceedingly difficult. But what is clear that, despite these companies’ efforts, the American people are not buying Monsanto’s denials once they see the evidence for themselves regarding the link between Roundup and cancer. If you believe that you have contracted cancer from exposure to Roundup, you should contact an experienced attorney right away to explore the possibility of a claim.

On Mother’s Day when I walked into church, all of the mothers and grandmothers we were asked to come up with a word to describe themselves. The word we chose would be stamped onto a metal disc and made into a charm bracelet as a gift to celebrate us. Now it’s not so easy to sum your life in just one word. You want that word to be important and meaningful. Words are very powerful. The words you say can destroy or build a person. The words you say can make someone’s day good or not so good. My word…it had to be a powerful one. While sitting there staring at the card I was supposed to fill out, I asked my son for his guidance. “What is my word?” He responded “love”. Hmmm good one. But I just didn’t feel that was THE “word”. I continued to listen to the sermon spoken by the pastor’s wife.  She talked of women in the Bible who had not so good pasts, faced difficult trials, or grew up in unhealthy family situations. These same women came to Jesus to be restored. “Restore” yes!!! That’s the word for me!! No. That wasn’t my “word” either. I had to come up with one word, when I felt so many such as “unworthy”, “small”, “lost” etc. Then my word hit me...“Daughter”. You see, as I have walked through so many circumstances in my life, my “word” changed. Good words, bad words. However one thing that never changed was my status as a “daughter”. My challenges, weaknesses, happy times, victories, every single one of them I remained His daughter. And HE was there every step with me. My word is so strong because of who my Father is. My word, His “daughter” covers a magnitude of words. Including love. “Daughter”. Yep, that’s my word!

Recently, in McIlwain v. Saber Health Care Group (“Saber”), the Pennsylvania Superior Court voided an arbitration provision contained in a nursing home admission finding no lawful relationship between the signor of the agreement and the resident. Norman Franks suffered from a diagnosis of schizophrenia and dementia, and was incapable of making decisions on his own. The Superior Court of California granted Chalena McIlwain letters of temporary conservatorship of Franks’ person and estate. The temporary conservatorship was set to expire on July 31, 2013. On May 13, 2013, Franks entered Saber nursing home in Pennsylvania. McIlwain signed Franks’ admission papers in the space designated “Authorized Representative,” and the box next to “Conservator” was checked. Additionally, McIlwain signed a “Resident and Facility Arbitration Agreement,” which provided that the parties to the agreement would submit to arbitration if there was a dispute. On July 30, 2013, the Court of Common Pleas of Montgomery County, Orphans’ Court Division, appointed McIlwain as permanent guardian for Franks. On July 31, 2013, the letters of temporary conservatorship from the Superior Court of California expired. Franks was a resident at Saber from May 13, 2013 until September 18, 2016. During his stay at Saber, Franks suffered multiple falls and urinary tract infections. Franks died on October 24, 2016 after falling and hitting his head while living at Saber. On August 7, 2017, McIlwain filed a complaint against Saber alleging negligence, wrongful death and survival claims. Saber filed preliminary objections arguing that the dispute was subject to binding arbitration. McIlwain responded by claiming that there was no evidence the temporary conservatorship was transferred from California to Pennsylvania pursuant to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), and therefore, the conservatorship was not valid in Pennsylvania. Saber argued that the conservatorship was valid, in part because of the Full Faith and Credit clause of the United States Constitution. The trial court sustained Saber’s preliminary objections as to the survival claims, and, therefore, bifurcated the survival claims and sent them to arbitration. The trial court overruled Saber’s objections pertaining to the wrongful death and negligence claims, finding that McIlwain did not agree to arbitrate her own claims against Saber. McIlwain appealed the court’s decision relative to the survival claims. In 2007, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (Uniform Act) to specifically address jurisdiction and related issues in adult guardianship and protective proceedings, including problems relating to transferring a guardianship from one state to another and recognition of an out-of-state guardianship/conservatorship order. See Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (2007) at 1-2.5. Pennsylvania enacted its version in 2012 known as the UAGPPJA. 20 Pa.C.S. § 5901. “The Act applies only to court jurisdiction and related topics for adults for whom the appointment of a guardian or conservator or other protective order is being sought or has been issued.”The UAGPPJA provides two ways that an out-of-state guardianship/conservatorship can be recognized in Pennsylvania. Section 5922 provides for a transfer of the jurisdiction of the guardianship from another state into Pennsylvania. Section 5931 provides for an out-of-state guardian/conservator to register its guardianship/conservatorship order in Pennsylvania. In this case, McIlwain did not follow either procedure. Accordingly, the Pennsylvania Superior Court found that because McIlwain did not follow either of the procedures outlined in the UAGPPJA, the temporary conservatorship granted in California did not give McIlwain the authority to sign the arbitration agreement on behalf of Franks. The Court further found that the Full Faith and Credit clause of the United States Constitution is not offended, because the underlying judgment of incapacity is not disturbed upon following the procedures provided in the UAGPPJA. See 20 Pa.C.S. § 5922(g); see also § 5933(a). Nonetheless, this was not the end of the Court’s inquiry - it still needed to determine whether an agency relationship existed between McIlwain and Franks that would provide an independent authority for McIlwain to have executed the arbitration agreement on behalf of Franks. “Agency is the relationship which results from the consent of one person that another may act on his behalf.” Lincoln Avenue Industrial Park v. Norley, 677 A.2d 1219, 1222 (Pa. Super. 1996). “The creation of an agency relationship requires no special formalities.” Walton, 66 A.3d at 787. “The existence of an agency relationship is a question of fact.” Id. “The party asserting the existence of an agency relationship bears the burden of proving it by a fair preponderance of the evidence.” Id. An agency relationship may be created by any of the following: (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel. Express authority exists where the principal deliberately and specifically grants authority to the agent as to certain matters. Implied authority exists in situations where the agent’s actions are “proper, usual and necessary” to carry out express agency. Apparent authority exists where the principal, by word or conduct, causes people with whom the alleged agent deals to believe that the principal has granted the agent authority to act. Authority by estoppel occurs when the principal fails to take reasonable steps to disavow the third party of their belief that the purported agent was authorized to act on behalf of the principal. Walton, 66 A.3d at 786 (citations omitted) (emphasis added). “The basic elements of agency are the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.” Walton, 66 A.3d at 787 (citation omitted). Here, the Court found that there was no express, implied, or apparent authority, nor authority by estoppel to establish an agency relationship between McIlwain and Franks in relation to signing the arbitration agreement. Specifically, the Court reasoned that authority for an agency relationship emanates from the words and actions of the principal, here, Franks. The Court found no facts to show that Franks was present when McIlwain signed the arbitration agreement or gave express consent to McIlwain to sign the agreement on his behalf. In fact, Saber states that due to Franks’ severe cognitive defects, he was incapable of making decisions on his own. In response, Saber claimed that McIlwain, by her words and conduct, held herself out as Franks’ agent and Saber was justified in relying on her words and conduct. Specifically, Saber alleges that because McIlwain signed the admission agreement, consent for physician care, and authorization and acknowledgement of receipt on behalf of Franks, she had apparent authority to sign the arbitration agreement. However, the Court determined that an agent cannot simply, by her own words, invest herself with apparent authority. Turnway Corp. v. Soffer, 336 A.2d 871, 876 (Pa. 1975). Such authority emanates from the action of the principal and not the agent. Id. Thus, the Court determined that because Saber did not rely on the words or conduct of Franks, no apparent authority exists. Additionally, the Court declined to assume agency by a mere showing that one person does an act for another. Walton, 66 A.3d at 787. “Agency cannot be inferred from mere relationships or family ties.” Wisler v. Manor Care of Lancaster PA, LLC, 124 A.3d 317, 323. Moreover, the Court found that Saber was not misled by any words or conduct of Franks. A party who deals with an agent must “take notice of the nature and extent of the authority conferred.” Wisler, 124 A.3d at 324. “Parties are bound at their own peril to notice limitations upon the grant of authority before them, whether such limitations are prescribed by the grant’s own terms or by construction of law.” Id. “If a person dealing with an agent has notice that the agent’s authority is created or described in a writing which is intended for his inspection, he is affected by limitations upon the authority contained in the writing, unless misled by conduct of the principal.” Id. Thus, the Court held that Saber had the duty to confirm the extent of McIlwain’s purported authority to sign the arbitration agreement as Franks’ agent at the time of reliance. Saber neglected to do so at its own peril. Therefore, the Court reversed the trial court’s order bifurcating the survival claims, and remanded for further proceedings.

Do you have dreams while you’re sleeping? Most of us do, although sometimes we can’t remember them. I don’t really think I dream that often, but I did have a funny one recently. I dreamt that my dog, Boo Bear, and I were in a dreary airport on our way to Las Vegas. Why I was taking him with me to Las Vegas I’ll never know. For some reason the ticket counter was in a very leaky, wet basement at the airport, and the airline worker who was checking me in already had my passport, which was completely torn up and in pretty bad shape for some reason. He approved me to get on the plane with my party of four, but I have no idea who the rest of my party were. As I turned to make my way to the boarding area, I discovered my luggage had mysteriously disappeared and I couldn’t find it anywhere. I also couldn’t figure out where I had to go to board my flight. The worst part of my “trip” to Vegas was I had to leave Boo Bear in the wet basement of the airport with a lot of other dogs who weren’t allowed to fly—one of them being a German Shepherd. Okay, so I’ll admit that’s a pretty silly dream, and what does it all mean? Our dreams come from our subconscious and, generally, they tell us something about ourselves. They can be about things we have experienced, our habits, our state of mind, future possibilities, etc. There is usually some meaning or explanation to our dreams, and they usually relate to something that we have been thinking about or doing within a day or so of having the dream. I love to travel and plan trips, and I’ve been to Las Vegas several times, so that part of my dream is not hard to figure out because I am always thinking of and planning the next adventure. Boo Bear is my elderly husky/buddy who sleeps in our room. Almost every night we have to get up around 2:00 a.m. or 3:00 a.m. to let him out to pee—hence the “wet” basement at the airport maybe? There was a story on the news last night about a family’s German Shepherd that had been missing for several years. The dog had been located thousands of miles away from its home and is now reunited with its family—this explains the German Shepherd in my dream. The other day I was wondering when my passport expired, so that’s probably why I dreamt about my passport, and the airline actually has lost my luggage before. So, as you can see, my dream is connected to things I have experienced in my life and things that are near and dear to me—like Boo Bear, travel, and my passport lol. Although I don’t usually remember my dreams, this one was very vivid, funny, and started my day off in a good way. It certainly didn’t have any really deep meaning. I’ll take my goofy, sweet dreams over a nightmare any day—or night.   Today's blog: Do you have crazy dreams while you’re sleeping? Most of us do, although sometimes we can’t remember them. Sheila had a pretty funny dream recently that she shares with us on the blog today!

If you watched my Bordas Beat session, you will know that I put on weight at Christmastime because I can’t say no to Christmas cookies. Saying that I ate three dozen cookies is probably a conservative number. The baby cream horns are my absolute favorite and probably the most fat-filled, but I can’t say that I turned down a sampling of all the other kinds either. Since I am going to the beach this summer, I have to get those Christmas cookie pounds off, so I thought I would try intermittent fasting. The optimal time for eating is between 10:00 a.m. to 6:00 p.m., but that doesn’t work for me since I don’t get home until around 7:00 in the evening, so I chose 12:00 p.m. to 8:00 p.m. It really wasn’t a hardship for me since I have never been a breakfast eater. The first week was a little difficult because I’m used to having a snack around 10:00 a.m. to hold me over until noon. After I got used to missing my morning snack, it hasn’t been bad at all. I drink the bulk of my water allotment in the morning, which helps with feelings of hunger. I don’t drink soda or juice because of the sugar content. Don’t forget that calories add up to weight gain, so even if something says fat free, it’s really not because most fat free foods have a high sugar content which turns into fat. If you’re a coffee drinker, unless you like it black, you’ll have to say goodbye to creamer or sugar during the fasting period. You also can’t eat everything in sight during your eight-hour eating window. The goal is to eat healthy. I find counting fat grams works best for me, but someone else might count calories instead. Everyone will find what works best for them. Just to put your mind at rest, you can have a cheat day. I allow myself one cheat day per week for one meal only. I also stay within my 8 hour eating period to keep my schedule the same every day. Although intermittent fasting is a good choice for me, it isn’t for everyone. If you are a Type-1 diabetic, suffer from any form of anxiety or have or have had an eating disorder, this is not a good choice for you. In any case, please check with your doctor before starting any kind of weight loss program to make sure your dieting plan makes sense and is safe for you. Your doctor may want to monitor your progress to make sure you stay healthy and get favorable results. From studies performed, if done correctly, the benefits of intermittent fasting can improve LDL and triglyceride levels, as well as lower inflammation and normalize blood pressure. It also regulates fat-regulating hormones. From all the positive things I have read, and since it’s relatively painless, I will be intermittent fasting for the rest of my life to maintain a healthier lifestyle. Once I reach the weight I want to maintain, I will have an entire cheat day. I’m finishing up my sixth week and have lost around 18 pounds with minimal effort. While I have lost my Christmas cookie weight, I thought I may as well go all out and get the rest of my unwanted weight off so I started back on the treadmill. I should be at my goal weight before I hit the beach. If you’re looking for a way to lose weight and not suffer overly much, try intermittent fasting. It’s definitely working for me. I feel better, I sleep better, my blood pressure is great, and best of all, I look better with the extra weight dropping off. Beach body, here I come!

Unfortunately, it seems that the day has long passed where being “a man (person) of your word” meant something. Have you ever wondered what you could do if somebody doesn’t fulfill their obligations? For me, to explain all the aspects of suing for a breach of contract would take up a lot of space. Contracts is a single class in law school, with many offshoots. However, the essential aspect of pursuing a breach of contract, is ensuring you have a contract that you can enforce. First, one must understand there are certain contracts that must be in writing to be enforceable. In general, some of the types of agreements that must be in writing include: those involving: the sale of an interest in real property (land and buildings), the sale of goods in excess of $500 (if it falls within the Uniform Commercial Code or UCC), leases of real property in excess of one year, residential construction and home improvement contracts and certain other specific types of agreements. Now if the contract is in writing or is the type that need not be in writing, what must you prove to enforce the contract? In short there must be 1) an offer, 2) an acceptance and 3) exchange of consideration. By consideration we mean one side must be giving something in exchange for getting something. Thus, a gift given or a promise to do something without receiving consideration back, is not an enforceable contract. Although, depending on the circumstances a promise can be enforced, the law of the contracts includes very specific elements that must exist if you are to enforce an agreement. The Restatement 2d of Contracts defines a contract as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Formation of a contract requires “a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.” Restatement 2d of Contracts, § 17 (2nd ed. 1981). The elemental aspects necessary to give rise to an enforceable contract are "offer", "acceptance", "consideration" or "mutual meeting of the minds." Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. Ct. 1993). There must be a meeting of the minds on all terms in a contract. Onyx Oils & Resins Inc. v. Moss, 367 Pa. 416, 420, 80 A.2d 815, 817 (1951). A meeting of the minds requires the concurrence of both parties to an agreement, or they have failed to operate an enforceable contract. DOT v. Pa. Indus. for the Blind & Handicapped, 886 A.2d 706, 713 (Pa. Commw. Ct. 2005). It is important to note that the phrase ‘meeting of the minds’ does not require a literal meeting, as the two parties do not need to have identical thought processes at the time of the bargain. 1-2 Murray on Contracts § 31 (2011). The use of such a standard would be unworkable, as it would be impossible to prove the subjective intention of either party at any time. Id. Under Pennsylvania law, the test for enforceability of an agreement is “whether both parties have manifested an intention to be bound by its terms and whether the terms are sufficiently definite to be specifically enforced.” Channel Home Centers, Div. of Grace Retail Corp. v. Grossman, 795 F.2d 291, 298-99 (3d Cir. 1986). Specifically, Pennsylvania uses a three-part test to determine whether a contract is enforceable: 1) whether both parties manifested an intention to be bound by the agreement; 2) whether the terms of the agreement are sufficiently definite to be enforced; and 3) whether there was consideration. Jenkins v. City of Schuylkill, 658 A.2d 380, 384 (Pa. Super. Ct. 1995). Except for when the law requires a written contract, the lack of a written agreement would not prevent a contract from being enforced, so long as the parties agree upon essential terms and intend them to be binding, "a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” Johnston v. Johnston, 499 A.2d 1074, 1076 (Pa. Super. Ct. 1985). Hopefully, you have more information to enforce an agreement you have entered into with a person who is not a person of their word; whether it evolve from the purchase of used car listed in the newspaper or the brother in law who backs out splitting the cost of a family vacation. Hopefully, neither of those have or will occur to you, but if they do you will have a better understanding of what you need to have in order to enforce a contract when the person is not living up to their agreement.

A few weeks ago, Bayer shareholders delivered an unprecedented rebuke of Bayer’s management over Bayer’s $63 billion acquisition of Monsanto last year, expressing serious concern caused by management’s overconfidence in Bayer’s handling of lawsuits over Monsanto’s Roundup weed killer. The litigation against Monsanto was absorbed by Bayer as part of Bayer’s acquisition of Monsanto. The International Agency for Research on Cancer (IARC) an agency of the World Health Organization (WHO,) issued a report in early 2015 that said the pesticide, which is Roundup’s active ingredient, glyphosate, was “probably carcinogenic to humans.” A second report from the WHO and United Nations later clarified that glyphosate was “unlikely to pose a carcinogenic risk to humans from exposure through the diet.” However, eating Roundup residue is one thing but spraying glyphosate over many years is another and the early litigation on Roundup has involved plaintiffs who were heavily involved in the spraying of Roundup. Last month, a jury rendered an $81 million damages verdict to a man who claims the Roundup weed killer caused his cancer. In a similar ruling last year, a separate jury assessed damages to a cancer victim from Roundup at $289 million, reduced to $78 million on appeal. Since that first verdict, Bayer’s shares have lost 40% of their value. And Bayer AG’s chief executive officer on Friday said the company currently faces 13,400 Roundup suits as he defended the Monsanto acquisition to shareholders. According to one corporate law expert, Bayer’s Chief Executive Officer has nine months to prove he shouldn’t be kicked out as a result of last year’s Monsanto acquisition, the time when Bayer sets the agenda for its next annual general meeting, after which dissident shareholders can file counter motions against management.

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.

Hit-and-run crashes are those in which at least one person involved in the crash leaves the scene before offering any information or aid to the other person involved in the crash or fails to report the crash. Hit-and-run crashes impact the physical, social and economic burdens suffered by crash victims and also often increase the severity of the outcome due to the delay in, or complete absence, of necessary medical attention. According to new research from the AAA Foundation for Traffic Safety, in 2015 there were an estimates 737,100 hit-and-run crashes. That number translates into approximately one (1) hit-and-run crash occurring every 43 seconds. Of those 737,100 hit-and-run crashes, 2,049 resulted in death, representing a sixty percent (60%) increase since 2009. The report determined that pedestrians and bicyclists represent the largest portion of hit-and-run victims. Almost twenty percent (20%) of all pedestrian deaths, over the past ten (10) years, were caused by hit-and-run crashes compared to only one percent (1%) of all driver fatalities during that same period. The AAA study identified the following common characteristics in hit-and-run crashes: Nearly sixty-five percent (65%) of people killed in hit-and-run crashes were pedestrians or bicyclists; Hit-and-run deaths in the United States have increased, on average, more than seven percent (7%) each year since 2009; Per capita, New Mexico, Louisiana and Florida have the highest rate of fatal hit-and-run crashes; and Per capita, New Hampshire, Main and Minnesota have the lowest rates of fatal hit-and-run crashes. The study found that victim age appears to be a factor in whether or not a driver flees the scene. Pedestrians under the age of 6 or over the age of 80 are half (1/2) as likely to be victims of a hit-and-run crash. There also appears to be a gender disparity among hit-and-run victims. Males make up approximately seventy percent (70%) of hit-and-run victims in single car/single pedestrian crashes. Maybe not surprisingly, studies have shown that drivers who leave the scene are between two (2) and nine (9) time more likely to have been intoxicated at the time of the crash. Likewise, thirty-four percent (34%) of fatally injured pedestrians had a BAC level over 0.08. It is illegal in every state for a driver involved in a crash to flee the scene. As Jennifer Ryan, Director of State Relations at AAA stated, “It is every driver’s legal and moral responsibility to take necessary precautions to avoid hitting a pedestrian, bicyclist or another vehicle.” Research has shown that not having a valid license, at the time of the crash, is one of the largest predictors of a driver’s decision to leave the scene of a crash. A person injured by a hit-and-run driver may be able to recover for their losses through Uninsured Motorist (UM) Coverage issued by their insurance carrier. Under your UM coverage, you can recover for bodily injury (also known as pain and suffering) as well as economic losses such as lost wages, losses to personal property, lost future earnings. If you have "no fault" wage loss coverage you can apply for that, which is separate from UM coverage. Also, in Pennsylvania, you will have medical benefits - that will pay for medical bills and treatment up to the limits on your policy - under separate medical coverage. Alternatively, in a situation where there is no insurance coverage available to provide benefits to the injured person, that person may qualify for limited benefits under Pennsylvania’s Assigned Claims Plan. The Assigned Claims Plan is not an insurer under the law, but rather, it is an administrative organization maintained by all insurers that provide financial responsibility, as required by Pennsylvania law. Under the Plan, an eligible claimant (injured person) may recover medical benefits up to a maximum of $5,000. Eligible claimants may also recover for losses or damages suffered as a result of the injury up to $ 15,000 per person and $ 30,000 in the aggregate. However, the amount of medical benefits recovered or recoverable up to $5,000 are set off against that amount. In order to qualify for benefits under the Assigned Claims Plan the claimant must satisfy the specific requirements set forth in 75 Pa.C.S.A. § 1752. If you or someone you love has been injured in a hit-and-run crash, you should speak with a lawyer about making a claim. https://aaafoundation.org/wp-content/uploads/2018/04/18-0058_Hit-and-Run-Brief_FINALv2.pdf

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.

Last week, the Oklahoma Supreme Court struck down a state law that capped monetary damages for pain and suffering in personal injury lawsuits at $350,000. The Court ruled that a statute adopted in 2011 which limited non-economic damages in personal injury lawsuits to $350,000 is an unconstitutional special law that treats people who survive injuries differently than those who do not. The state constitution prohibits caps on damages for injuries that cause death, the ruling stated. According to the majority opinion, “by forbidding limits on recovery for injuries resulting in death, the people have left it to juries to determine the amount of compensation for pain and suffering in such cases, and no good reason exists for the Legislature to provide a different rule for the same detriment simply because the victim survives the harm-causing event,” according to the opinion in which five of the court’s nine justices concurred. The underlying lawsuit that prompted the Court’s decision involved a worker whose left arm was amputated at an oil well site when the worker was struck by a boom from a crane in March 2012. An Oklahoma County jury in 2015 awarded the worker and his wife a total of $15 million, including $6 million for pain and suffering. A judge then reduced the jury award on non-economic damages to $700,000 — $350,000 for each of the worker and his wife — in order to comply with the law. This recent decision follows a number of other state high courts, including Georgia and Florida that have rightfully struck down caps on non-economic damages as an unconstitutional violation of all Americans’ right to a trial by jury. The foundation of America’s jurisprudence was built upon the principle that states have the power to establish a constitutional right to a trial by jury in civil cases. Historically, a jury of one’s peers has decided both the question of liability and the question of how much damages to award in tort cases, subject to instructions on the law by a judge. But in the past couple of decades, pro-business, corporate backed legislators have passed laws to arbitrarily cap damages to insulate their corporate constituents from having to pay full and fair compensation for what are often-times the most substantial and life-altering injuries they inflict – not the physical injuries they cause, but the substantial ways in which those injuries change a person’s life forever. State courts are already empowered to reduce excessive verdicts where appropriate in light of the evidence, but caps reduce damages by operation of law, without regard to the specific circumstances of the case. Critics of caps contend that legislatures that pass caps violate the separation of powers by imposing arbitrary damage caps on juries, who function as part of the judicial branch of government. Oklahoma is the latest Court to agree with that sentiment.