Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

Please take a minute to peruse the Central Blood Bank notice I received in the mail yesterday. Check and see if you are available to donate blood at the above blood drive located at Wheeling Hospital, 1 Medical Park, Wheeling, W.Va., in their Auditorium B (Basement Level) during the hours of 11:30 a.m. to 5:30 p.m. So many lives can be saved when you donate blood for a “life saving” transfusion.  If you have never donated blood before, see the Central Blood Bank’s donation process below.  I have donated blood in the past and it is very easy, but my hemoglobin has not been up to par the last few times I attempted to donate, so I was rejected.  You will be checked out as well to make sure everything is up to snuff before you are approved to donate blood. Step 1: Registration – In the reception area, you will be asked general information, such as name and address.  In order to maintain accurate records, all donors are asked to present proper identification (e.g. driver’s license, personalized Central Blood Bank donor ID card or military ID card, birth certificate and a picture ID with full name, etc.). Step 2: Mini Physical – During the mini-physical, your temperature, pulse and blood pressure will be checked.  Your hemoglobin will be tested as well — which involves a small drop of blood drawn and tested to ensure the donor has enough iron-carrying red blood cells to safely donate blood. Step 3: Medical Interview – Y ou will meet privately with a Central Blood Bank staff member to review your medical history.  This information is kept strictly confidential. Step 4: Pre-Donation Refreshments – Before the donation, you may be asked to drink a glass or two of decaffeinated fluids to help hydration levels. Step 5: The Donation – In the donation area, a trained phlebotomist will sterilize the area of your arm before drawing the blood.  When donating whole blood, one unit (approximately one pint) is removed. An automated or apheresis donation means you are donating the individual component(s) – everything that you are not donating is returned to you.  For example, if you donate platelets, whole blood is withdrawn and spun in a sterile, self-contained centrifuge to separate the platelets; then your red blood cells, white blood cells and plasma are all returned to you through the same needle.  Apheresis and automated processes take longer than the whole blood donation process. All materials used during each donation are pre-packaged, sterile and disposable.  These materials are used only once and then discarded. Step 6: Refreshments and Relaxation – After the donation, you will be directed to the café/canteen area, where you will rest while enjoying light refreshments.  After 15 minutes, you will be permitted to leave that area and resume your daily routine. The average platelet count is between 150,000 and 450,000 platelets per microliter of blood. The donation does not significantly decrease the number of platelets in the donor’s body, and the donated platelets are replaced in approximately two days. Platelet donors can donate every seven days and up to 24 times a year. The qualifications for platelet donors are similar to those for whole blood donations. The minimum age is 17 (16 with signed parental consent form*), and platelet donors must weigh at least 125 pounds (110 lbs. with a high-enough platelet count). The WHOLE BLOOD donation process, from registration to refreshments, takes approximately one hour. The DOUBLE RED BLOOD CELL donation process takes a little more than an hour. The PLATELET donation process takes approximately two hours. ThePLASMA donation process takes approximately 45 minutes. So, it is not hard to donate blood and only takes approximately 45 minutes to an hour.  Please consider scheduling an appointment or just walk in on Monday, February 23, 2015, between the hours of 11:30 a.m. and 5:30 p.m. to donate “life saving” blood. You never know when one of your loved ones may need a blood transfusion for whatever reason and they ultimately survive because of that transfusion – GO AHEAD AND MAKE THAT DECISION TO DONATE BLOOD SO YOU CAN POSSIBLY SAVE A LIFE. To schedule an appointment, you can visit www.centralbloodbank.org and click the “make an appointment” link and search with the Group Code W382.  You can also schedule an appointment by contacting Beth Zebick at 304-243-3339 or Cara Poludniak at 304-243-8309.

Did you know that several states have laws on their books that you must remove all ice and snow from your vehicle before moving it or you can be fined? It only makes sense to clear off all of your windows before driving, but I did not know that you must clean the roof and hood as well.  If ice or snow falls from your vehicle while driving and hits another vehicle causing property damage, or hits a pedestrian causing injury, you can be fined. In 2010, a West Virginia delegate from Kanawha County introduced a bill that would get tough with drivers in West Virginia who failed to clear snow and ice off their vehicles, but IT DID NOT MAKE IT INTO A LAW.  Some cities and towns have adopted their own laws requiring snow/ice removal, so check out the ordinances in your city or town to make sure you are abiding by the local laws. For example, here are some laws for the states of Pennsylvania, Connecticut and New Jersey. Pennsylvania’s Snow/Ice Removal Law, which went into effect in 2006, requires motorists to remove all snow and ice from their cars before heading out on roads, including the Pennsylvania Turnpike. If snow or ice flies from a vehicle and hits another vehicle or pedestrian, drivers face fines of $200 to $1,000. Pennsylvania law also requires drivers to turn headlights on whenever windshield wipers are in use or they could face a fine of $25. In Connecticut, they have the "Ice Missile Law" for commercial vehicles and non-commercial vehicles.  This law requires drivers to clear vehicles of snow and ice before driving, “including the hood, trunk and roof."  Violation of the law carries a fine of $75. New Jersey – Ice & Snow - Remove It Before You Go – Remember to remove all ice and snow from your vehicle before driving, especially from the hood, windows and roof. It’s the law in New Jersey! Motorists who fail to do so face fines of $25 to $75 for each offense, regardless of whether the ice and snow is dislodged from the vehicle. If flying ice or snow causes property damage or injury to others, motorists face fines of $200 to $1,000 for each offense. Check out this cite from theclda.com for all states with regard to trucking snow removal requirements: Also, most people do not realize this, but more than 50 percent of the reason you have lights on your car is not for you to see, it is so others can see you. Many states require drivers to have their headlights on whenever windshield wipers are in use or you can be fined. A handful of states, however, have more specific laws for headlight use that could catch an out-of-town driver (or a resident not up on current laws) completely off guard. The most common requirement is to use headlights when wipers are in use. More obscure requirements include Pennsylvania, which requires drivers to turn on their headlights in construction zones, while Alaska requires headlights at speeds above 45 mph on designated highways.  Because keeping track of state laws can be difficult, owning a car with automatic headlights (which turn on when it's dark) as well as daytime running lights (which use a low beam headlight during the day) can be handy. Each year, there are approximately 500 fatalities in the United States due to icy road conditions. This winter, please use common sense when driving in tough weather conditions, i.e. remove all snow and ice from your vehicle and turn your headlights on whenever your windshield wipers are in use.  Be Safe!!

All too often we tend to view e-mails and text messages as informal means of communication. We joke with our friends using our work computers and say things that we would probably never say in a written letter.  Just a word of warning about that.  The content of e-mails and text messages can often look very, very bad when examined later on. As an example, an employee of a business wrote the following about a difficult file:   “Burn the files, delete them and pretend we’ve never heard of them – I’m joking.”  When that relationship fell apart, that e-mail was uncovered.  As you can imagine, whatever the “joke” was supposed to be, it wasn’t all that funny anymore and I am sure the author of the e-mail regrets what he or she wrote. Although perhaps an extreme example (destroying important files is not a joking matter under any circumstances), we should all keep in mind that although we think our e-mails and text messages will never come back to haunt us, things that made sense or were supposed to be funny in one context can seem malicious or at least embarrassing in another context. When it comes to e-mails and texts, before hitting send, spare a brief moment to reflect on how that e-mail or text would look under other circumstances and ask yourself if you would be willing to sign your name to the same words in a formal letter.  If not, exercising some care before you hit “send” might be in order.

In Bruno v. Erie Insurance, the Pennsylvania Supreme Court analyzed the “gist of the case” doctrine, which limits plaintiffs from recasting breach of contract claims as tort claims.  Typically, if the tort claim is wholly dependent upon the terms of the contract, then it will fail.  In other words, if the defendant has no duty to the plaintiff except for those created by the contract, the gist of the case is contractual.  For a negligence claim to be successful in the context of a contract, the allegations of negligence must fall outside the terms of the contract. The Brunos purchased a home and acquired a homeowner's insurance policy from Erie Insurance, which provided a rider covering physical loss to the property caused by mold.  This rider obligated Erie to pay the Brunos up to $5,000 for “irect physical loss” to the property caused by mold, or any “ecessary increase in costs” they incurred to maintain their “normal standard of living” should their residence be rendered uninhabitable as the result of mold.  The rider also required Erie to pay the cost of testing the air and any part of the covered property in order “to confirm the absence, presence or level of” mold “to the extent there is a reason to believe” mold was present, and, if mold was present, it obligated Erie to pay for the cost of its removal, including the cost of tearing out any part of the property needed to gain access to the mold. The Brunos detected mold during renovations and filed a claim for policy limits with Erie to test the mold.  Erie assigned a claims representative to investigate the claim, who in turn retained a private engineer (Rudick), to assist in the investigation.  Upon completion of the investigation, the claims adjuster and Rudick advised the Brunos that the mold was harmless; that the Brunos could continue with their demolition and renovations; and, that the claim was being denied on that basis. Relying upon the representations of Erie and Rudick, the Brunos continued with the home improvements; and, soon thereafter, developed respiratory problems, particularly Mrs. Bruno.  The Brunos tested the mold at their own expense and determined that the mold was toxic and a health hazard.  They reiterated their demand for the $5,000.00 policy limit, which was ultimately tendered by Erie.  Later, Mrs. Bruno was diagnosed with cancer, which health care professionals related to her exposure to the toxic mold.  Concerned for their safety, the Brunos subsequently vacated the house, which they were later forced to demolish, as the mold could not be eradicated. The Brunos sued Erie and Rudick alleging negligence and professional negligence for failing to recognize the nature and severity of the mold problem at the premises; misleading them regarding the nature and extent of the mold problem; minimizing the dangers and consequences of the mold infestation when it knew or should have known otherwise; and the creation or exacerbation of a dangerous condition.  The Brunos did not file a certificate of merit in support of their claims of professional negligence against Rudick.  The Brunos were seeking contractual damages as well as damages for pain and suffering, inconvenience, embarrassment and loss of enjoyment of life's pleasures. Both Erie and Rudick filed preliminary objections in the nature of a demurrer. The basis of Erie’s demurrer was that the Brunos’ negligence claim against it was barred by the “gist of the action” doctrine.  Rudick grounded its demurrer on the contention that the Brunos’ claim for professional negligence should be stricken due to their failure to file a certificate of merit within 60 days of the filing of their complaint, as required by Pa.R.C.P. 1042.3(a). The trial court sustained Erie’s preliminary objections, noting that, under the Superior Court’s formulation of the gist of the action doctrine, the critical distinction between a breach of contract action and a tort action is that “the former arises out of ‘breaches of duties imposed by mutual consensus agreements between particular individuals,’ while the latter arises out of ‘breaches of duties imposed by law as a matter of social policy.’”   The trial court reasoned that “ut for the insurance policy, Erie would owe no obligation as defined by larger social policies embodied by tort laws,” and, thus, it dismissed the Brunos’ negligence claim against Erie. The trial court also granted Rudick’s preliminary objections, holding that privity of contract was not a prerequisite for maintaining a negligence action against the private engineer.   Therefore, the Brunos were required to file a certificate of merit supporting their professional liability claims against Rudick; and, because they failed to do so, their claims were dismissed. The intermediate appellate court, the Pennsylvania Superior Court, affirmed the trial court on both accounts; however, the Supreme Court of Pennsylvania reversed. In analyzing the gist of the case doctrine, the Supreme Court held that the general governing principle as to whether the claim is solely one of contract concerns the nature of the duty alleged to have been breached.  In this regard, the substance of the allegations comprising a claim in a plaintiff’s complaint are of paramount importance, and, thus, the mere labeling by the plaintiff of a claim as being in tort, e.g., for negligence, is not controlling. If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract — i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract — then the claim is to be viewed as one for breach of contract. If, however, the facts establish that the claim involves the defendant’s violation of a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort. Consequently, a negligence claim based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises, which comprise the contract. Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed.  Thus, the court determined that the homeowner's policy was nothing more than a vehicle, which established the relationship between the parties, during which the Brunos alleged a breach of a general social duty. The Pennsylvania Supreme Court also reversed the decision regarding the requirement of the Brunos to file a certificate of merit pursuant to Pa.R.C.P. 1042.3(a).  The court relied on the strict language of the statute that only required the filing of certificates of merit when the professional defendant has a patient/client relationship with the plaintiff. The decision is an important decision for plaintiffs to the extent that had the Brunos’ negligence claim been dismissed, they would not have been able to recover for the damages associated with their injuries and damages associated with toxic mold exposure.   In Bruno v. Erie Insurance, the Pennsylvania Supreme Court analyzed the �gist of the case� doctrine, which limits plaintiffs from recasting breach of contract claims as tort claims. Typically, if the tort claim is wholly dependent upon the terms of the contract, then it will fail. In other words, if the defendant has no duty to the plaintiff except for those created by the contract, the gist of the case is contractual. For a negligence claim to be successful in the context of a contract, the allegations of negligence must fall outside the terms of the contract.

“If you are early, you’re on time. If you are on time, you’re late.  And, if you’re late, don’t bother coming.”  This is what my son told me that his Wheeling Central baseball coach told his team the other day about their being on time for their hitting/pitching clinics. These clinics are held about three minutes from my house and my son wanted to be there about 30 minutes early.  I, of course, had just gotten home from work and wanted to just relax for a little bit before going back out in the cold.  After he spoke those words to me, I immediately put on my coat and took him down the road. I began to think about the individual who is instructing these clinics and how he is giving up his time to help out young enthusiastic players.  It isn’t fair to him to have to wait on any one person to begin the clinic.  His time is not any less important than mine or my child’s.  We all are important with very important and unique situations in our everyday lives, but it’s an expected rule of conduct and just simply polite. Being on time is a very valuable common courtesy to instill in your child and it goes hand-in- hand with treating others respectfully.  I am extremely grateful to my son’s coach for helping me teach my son this important life lesson. �If you are early, you�re on time. If you are on time, you�re late. And, if you�re late, don�t bother coming.� This is what my son told me that his Wheeling Central baseball coach told his team the other day about their being on time for their hitting/pitching clinics.

Have you heard about or read the article regarding the Blackford Circuit Judge in Indiana who issued an order directing an attorney, who made it a habit to appear in court without socks, to wear appropriate business attire, including socks and a tie? Good for you Judge! The Courtroom should be honored and respected ALL the time. On August 25, 2014, The Honorable Circuit Court Judge Dean Young issued an Order specifying for this attorney to wear appropriate business attire for future proceedings in his courtroom.  This was not singling out of any sort.  This was expected of all counsel in the courtroom. Now, the Judge warned this attorney, in private on a courtroom break, of what was required and was supported by the local rules.  Rather than comply, the attorney’s responded by saying, “I hate socks.”  Further, the article states the attorney responded by telling the judge that unless he could show him applicable "orders or other legal authority," he would continue his habit of appearing sockless in court." The Judge issued an Order with respect to future proceedings warning this attorney that, “ He will be subject to sanctions from the court which may include a delay ordered by the court in presenting his case, fines, continuances of pending proceeding for which costs, fees and expenses may be awarded opposing parties and/or their counsel, or such other sanctions for contempt that the court may impose in order to maintain appropriate decorum during court proceedings.” I sure do hope this attorney can respect the Courtroom enough in the future to comply.  It just seems so disrespectful otherwise. As for jurors, they are not upheld to these standards. Most courtrooms ask that no offensive clothing and poor use of language on the clothing, cut-offs, etc., be worn, which is the usual expectation. That brings us to office etiquette. Times have changed so much from what they were years ago and many businesses have gone to a business casual look and much more liberal, but I don’t think that means it’s a free pass to take it to excess. Certainly, unless you are going into the Courtroom where you may be expected to have suit and tie or a more formal look, men should consider a nice shirt and tie or button down with dress slacks or even a casual pant in the business place and ladies, well, they have a much wider variety to choose from nowadays, but it has gone to an extreme. A rule of thumb used to be if the skirt is six inches above the knee then it’s a no-no or at least something that you may need to doctor up understanding that minis are very common now, but should be accompanied by some thick tights or leggings, gals.  And, bare arms are usually not appropriate for either of the sexes. Open-toed shoes used to be taboo, but now they are a pretty common.  A nice shoe does not have to be an expensive shoe, but appropriate. If you stop and ask “Should I?” then you probably shouldn’t. It’s not Friday night after-hours at the office.  And, when choosing an outfit to wear to work, consider if you would you wear that to your initial job interview?  That could answer a lot because if you say, probably not, then I would say you may not want to wear it to the office just because your foot is in the door. It does take time to build up a business wardrobe, but some points to remember are neutral colors make great mix and match outfits.  There are many consignment shops that have slightly used professional attire and of course, look for the sales!  If you are bored with some of your attire swap it out with a friend and make it a new look for you. You want to have a company that is proud that you represent them.  Keep in mind, when you are in the public eye, not only do you leave an impression of who you are, you leave one for the company you represent as well.

There is an assault upon personal responsibility and accountability occurring in our State Legislature all in the name of purportedly making West Virginia more business friendly.  I am not here to debate the merits of any particular “tort reform” proposal.  My colleagues are doing an excellent job in exposing the fallacies of the positions being espoused by the tort reformists who have declared a mandate was set forth in the past election to change the West Virginia legal system.  I am here to say to those in our State Legislature that if you believe that West Virginians have abandoned their value system in favor of the corporate welfare legislation being pushed through the halls of our State Capitol Complex, you are mistaken. I spent enough years in Charleston, including in the Capitol Complex to know that it’s all about how you frame the message. The smoke and mirrors will soon disappear and you will not be able to credibly reconcile your positions to the ordinary West Virginian who values personal responsibility and taking care of the innocent and infirm beyond all else. A few examples of the inconsistencies in tort reformers’ positions: Social Welfare – Those pushing “tort reform” such as damage caps, limitations on liability for deliberately injuring workers and “comparative fault” legislation are also advocating reduction in social benefit programs, such as food-stamps, welfare, assisted living, and Medicaid.  The question that the tort reformers need to answer is who is going to pay the bill when the sole breadwinner of a family is injured or killed by a company which puts profits over safety or an individual who drives intoxicated, but is subject to only nominal liability due to damage caps or statutory immunities created to “create jobs.”  These businesses can and do factor in the potential liability as a cost of doing business without regard for the impact their conduct has on the lives of the innocent victim and his family.   The wrong-doer will get to go on with life as if nothing happened. The innocent victim, however, is left with no recourse.  Injured and unable to work, the victim has no income to pay medical expenses necessary for treatment of the injury, no income to provide housing and food to survive and has lost the benefit of the insurance he paid for to protect himself and his family because, oh, by the way, if the “tort reformers” get their way, the wrongdoer gets a set off for anything covered by the victim’s own insurance as well.   He and his family will likely end up dependent upon social welfare programs to survive.  But wait, the tort reformers want to eliminate those as well.  Now the innocent victim and his dependents are left to depend on family, friends and charitable and religious organizations to survive while the wrong-doer goes about their business as if nothing happened. Punish the criminal – The tort reformists often present themselves as hard on crime.  The Bible says you must pay for your sins they say.  However, they are not picking and choosing who is punished for their sins and who is protected.  Crime must be deterred by increasing jail-time for individuals who commit a crime according to the tort reformists.  But when a business commits a crime or intentionally injures someone, it should be immune from punishment in the name of making our State “business friendly”.   How can those two positions be reconciled? Protect the innocent and those who cannot protect themselves.  Tort reformists also often invoke the Bible to say you must protect the innocent life and those who cannot protect themselves.  These are words to the tort reformists designed to evoke emotional responses.  I would like for these tort reformists to spend some time answering the calls we take at Bordas & Bordas from people who have lost loved ones or been injured through the negligence of others.  I want them to try to explain to someone whose own life or that of a close family member has been forever changed (or lost) due to the negligence of another that, in light of the damage caps in place, holding the wrong-doer responsible is just not economically or emotionally feasible due to the exorbitant litigation costs necessary to counter an aggressive defense. But wait, say the tort-reformers, the caps only apply to non-economic damages for things such as pain and suffering.  You can still recover for economic damages such as lost wages or medical expenses.  I would like for the tort reformers to have to explain this “reasoning” to the family of a 90-year-old nursing home resident who was given improper medication resulting in brain damage.  The nursing home resident will have relatively little economic damages.  However, when a similar medication error occurs with a 35-year-old coal-miner with a wife and three children, the economic damages are huge.  Same error.  Different result.  One victim is elderly and infirm.  The other victim is young and income generating.  The first victim’s recoverable compensation is limited.  The other victim is able to recover more than just the minimum allowed by the cap.  So, are the tort reformers really protecting the innocent and infirm as they say the Bible instructs them to do?  You decide. I was born and raised in Wheeling, West Virginia.  I went to Catholic school my entire life.  I remain a member of the Catholic Church.  The sense of personal responsibility, accepting the full extent of the consequences of my actions and choices, good or bad, and the responsibility to protect those who cannot protect themselves was instilled in me from an early age and has been reinforced again and again throughout my life.  My friends and neighbors have similar values.  I left West Virginia for several years, but I came back.  Many others I know have left and came back.  We came back because we believe in personal responsibility and caring for others.  We are the people the tort reformists say have been driven from West Virginia.  What I have to say is we have not.  We are here and the changes you are trying to make to our beloved State are not what we are about.  If you want us to listen to you, be consistent with your positions.

This past weekend my husband and I went to our place in the mountains for him to ski. We always take Barley, Guinness and our grand dog, Jackson, with us, but this weekend my youngest son didn’t have to work the whole weekend, so he kept the two younger pups. Therefore, Barley was the top dog for the weekend. Barley was so happy. We walked, went to the lodge and watched the skiers come down the mountain. He was having a good old time. By the end of the day, you could tell he was missing his brothers. Barley started to look for his canine colleagues and I felt bad for him because he just looked a little lost, but he sat with my husband and watched some TV. When it was time to go to bed, he went up and got into his doggy bed and fell fast asleep, only to be awakened by my husband telling him he would make him a special breakfast the next day and the rest is history. Barley is a very good boy. We are not sure, but we think he doesn’t know he’s a DOG. So here are just a few pictures of him waiting on my husband to cook for him.  Funny, my husband didn’t make me breakfast.  Something is up. I just know it... I love our time with our pups and it doesn’t matter if it’s one, two or all three of them. Enjoy these pictures of Barley and I hope it brightens your day, I know it did mine. Bark on, Bordas Dog Nation, bark on. Remember, adopt. Don’t shop. Please contact your local animal shelters if you have room in your heart for one more family member who needs a furever home. Also, remember to spay or neuter you pet to help control the animal population.

On Saturday, February 7 th,the varsity cheerleaders of Wheeling Park High School won 1 st place in the 5A division of the OVAC cheerleading competition. This is the 18 th win for Park in this competition.  The win was especially significant to this squad as they also won the coveted WV State Championship title in the AAA division back on December 13, 2014 for only the second time in the school’s history. As a mother of one of these girls and a former Park cheerleader myself, I can say that this team has worked immensely hard since August preparing for these competitions.  Hours of practice, hard work and extreme dedication go into this sport…..yes I consider it a sport, as these girls are competitive athletes.  For anyone who has never watched a cheering competition, these girls are incredible.   Some have been practicing gymnastics since they were able to walk and they are definitely impressive.  The strength and agility these girls possess to jump, tumble and throw each other high in the air repetitively is amazing.  However, this immense wear and tear on the body is often accompanied with injuries of every type; almost every girl has had an injured knee, ankle or wrist at one point with some of these injuries requiring surgical intervention.  But through it all these girls push on for themselves and the team.  And they are a true team – you would think that a group of teenage girls who spend so much time together would be the perfect environment for drama…..not with these girls.  They are teammates and friends. Cheerleading has perhaps the longest season of any sport, but the girls never really have an “off” season.  Summer months bring cheerleading clinics, camps and gymnastics classes.  In the spring many of the girls also participate in track to stay in good cardiovascular shape.  More importantly, however, is that these girls work just as hard in their classes in school.  Many nights I have watched my daughter come home from a long practice and put in three more hours of school work to prepare for the next day.  Her schedule is filled with honors classes and even a college class and she has managed to maintain over a 4.0 average all year.  But it doesn’t end there.  These girls are known for giving back to the community as well.  They participate in Relay for Life, read at the local elementary schools and volunteer for the Miracle League of the Ohio Valley. Needless to say these girls are amazing individuals and unstoppable as a team.  They are outstanding in uniform and in the community. I am so very proud of my daughter and every one of her teammates.

As we noted last year, the Consumer Financial Protection Bureau ("CFPB") has been given Congressional authority to trash mandatory arbitration clauses in consumer contracts for financial products and services, such as automobile loans, credit cards and checking accounts.  The Act explicitly empowers the CFPB to adopt regulations that "prohibit or impose conditions or limitations" on the use of arbitration agreements if it finds doing so to be "in the public interest and for the protection of consumers."  The CFPB is expected to announce the results of the second phase of its study early this year.  The second phase of the CFPB's study is expected to address a number of areas, including: whether consumers are satisfied with arbitration; whether consumers are aware of or have read the terms of arbitration clauses and whether arbitration clauses influence consumers' decisions about which consumer products to purchase. Late last year, the CFPB issued its phase one findings, which indicated consumers very rarely invoke arbitration and prefer class-action proceedings.  The study further indicated that the use of arbitration agreements was rampant and potentially abusive to consumers. The abusive nature of arbitration clauses and the need for the CFPB to act was exemplified in a recent decision by the Missouri Court of Appeals.  Therein, an 88-year-old “neighborhood staple," Kenny Johnson, rented a refrigerator from Rent-A-Center.  After servicing the refrigerator twice, an alleged Rent-A-Center representative came to Mr. Johnson’s home for a third time and beat him, gashed his head and robbed him. He wasn’t discovered for three days. The assailant has been criminally charged. In the fine print of the “agreement” the consumer had to sign to rent the refrigerator was a forced arbitration provision. The forced arbitration provision says that the arbitrator, not a court, will decide when the arbitration clause applies.  Here, the consumer argued that he went to Rent-A-Center to get a refrigerator, not to be beat or robbed. Too bad, the court says. Listing some very pro-corporation U.S. Supreme Court decisions, the Missouri court holds that it has to enforce the arbitration clause, and let the arbitrator decide whether the dispute over a physical assault is covered by the consumer’s contract about renting an appliance.  In fairness to the Missouri Court of Appeal, it directly stated that it was bound to follow a U.S. Supreme Court decision, “regardless of whether we agree with the reasoning expressed therein.” Of course, the consumer now must deal with the bias of the arbitrator, who is paid by the hour.  If the arbitrator finds that the case can’t be arbitrated, he or she only gets paid for an hour or two.  If the arbitrator finds that the case can be arbitrated, he or she can bill for many hours. These mandatory arbitration clauses are buried in the fine print of consumer finance, employment, cell phone, credit card, retirement account, and nursing home contracts. Just by taking a loan, a job or buying a product or service, consumers without warning are forced to give up their right to go to court if they are injured by a company.  Make no mistake the private system of forced arbitration benefits companies - and disadvantages consumers and employees.  In arbitration, there is no publicly accountable judge, jury, or right to an appeal. The arbitrators are not made to follow the facts or the law, and there is no public review of decisions to ensure the arbitrator got it right. Moreover, contracts typically name the arbitration firm that must be employed. That arbitration firm is typically one preferred by the company. These arbitrators have an incentive to favor the company, as they want to continue to be given repeat business by them. Most importantly for corporate America, arbitration is now being used to legitimize broad class action arbitration waivers in all types of consumer agreements, including consumer finance contracts. The practical effect is that companies now use forced arbitration clauses to eliminate the ability of consumers to band together, which is often the only means for consumers to vindicate their rights. Bordas & Bordas welcomes action by the CFPB, but is by no means waiting on it. Bordas & Bordas has successfully beaten back numerous arbitration clauses forced on its clients by banks, creditors, cell phone companies, nursing homes and employers, allowing its clients to proceed in a public court.   Despite the increasing number of bad court decisions enforcing arbitration, those of you who have been harmed by corporate America should not assume that these shocking arbitration clauses are valid and are welcome to contact us to discuss your rights. As we noted last year, the Consumer Financial Protection Bureau ("CFPB") has been given Congressional authority to trash mandatory arbitration clauses in consumer contracts for financial products and services, such as automobile loans, credit cards and checking accounts. The Act explicitly empowers the CFPB to adopt regulations that "prohibit or impose conditions or limitations" on the use of arbitration agreements if it finds doing so to be "in the public interest and for the protection of consumers." The CFPB is expected to announce the results of the second phase of its study early this year. The second phase of the CFPB's study is expected to address a number of areas, including: whether consumers are satisfied with arbitration; whether consumers are aware of or have read the terms of arbitration clauses and whether arbitration clauses influence consumers' decisions about which consumer products to purchase.

I went to the Kroger over the weekend and since there were no empty spaces close, I had to park nearly at the end of one aisle. I parked and started walking back toward the store, being careful to stay over to the side of the lane to let cars pass while simultaneously watching for cars with drivers in them backing out so I wouldn’t unintentionally be run over. Not everyone does this.  I know this from experience when I have been backing out of a parking space at a busy store.  Many times when I thought the way was clear, I have had to slam on my brakes in order to miss hitting someone who decided to walk behind my vehicle.  The irony is I usually have to suffer through angry glares and (thankfully) unheard comments from these almost-flattened pedestrians.  Most people just expect the driver to see them walking behind their car. This made me start wondering if there were any laws to govern the pedestrian and drivers of a parking lot.  So I Binged it and did a little research. It seems that the laws vary from state to state.  If there are speed limit signs and directional signs, i.e., stop or yield signs, you should be attentive to abide by them just as you do out on the open road.  However, because the store parking lot is considered “private property,” the police cannot give you a ticket and usually if there is a fender bender won’t even show up if called and merely suggest that you exchange insurance information with the other driver.  As far as I can tell, the person backing out is usually the one who is considered “at fault” because the laws say you must have your vehicle under control at all times.  So if you run over a pedestrian while backing out of a parking space you will have to prove that you were doing everything possible to avoid hitting the person.  I think there is a major flaw in this law.  Unless you are capable of literally pivoting your head completely around on your shoulders, at some point in time you are going to almost run over someone!  It’s hard enough while backing out of a tight parking space watching for oncoming vehicles that it should really be the responsibility of pedestrian to be the on the lookout for cars backing out. I suppose it boils down to a simple matter of parking lot etiquette.  But though most of us do act appropriately and do practice good driving etiquette in and out of parking lots, there are a few who drive and tromp carelessly through life expecting “the other guy” to do the watching.  So unless your car is equipped with one of those new back-up cameras, which in my opinion is one of the greatest inventions since rearview mirrors, be careful and back out slowly, watching for other vehicles and pedestrians.  Stealing a phrase from the old TV series Hill Street Blues, “Let’s be careful out there!”

I would like to think in my case it surely was a blessing! When you are first diagnosed with diabetes, you totally think it is the “beginning of the end.” You are overwhelmed, i.e., I have to give myself shots every day, test my blood sugar, watch what I eat, see my doctor every three months or sooner . . . lions and tigers and bears, OH MY!!  Yes, I did feel a little like Dorothy in the Wizard of Oz, but diabetes made me discover exactly how food works with my body.  Since my pancreas decided to no longer do what it was supposed to do, I decided I needed to take charge of my health or it would sooner or later take charge of me. First, I will explain that you need to be aware of how different foods work with your blood sugar because everyone’s body is different.  If you are a Type I diabetic, you most likely are insulin-dependent and your pancreas, or actually the “Islets of Langerhans” (i.e., the islets of langerhans contains beta cells which secrete insulin) no longer does its job of converting sugar/glucose into energy. If you are a Type II diabetic, your pancreas becomes a bit lazy and inhibited by weight gain and/or some other weird reason and does not efficiently convert sugar/glucose into energy.  Usually, if you lose those extra pounds, most likely your pancreas/islets of langerhans begins to work efficiently again or gets a kick-start to get back to working efficiently.  It’s all about the exercising. Each person’s diagnosis is different.  I believe that exercise is key!  You totally need to put “all your ducks in a row” when you are diagnosed with the big “D,” diabetes, Type I or Type II.  This does not mean that you cannot have sugar/glucose, you can, just not a lot of it at one time.  As with everything, especially food, moderation is key and you need to eat healthy as in vegetables, fruits, etc.  You will feel better when you take care of your body.  I know that is easier said than done. For Type II diabetics, exercise will help tremendously.  The more you exercise, the better your body uses sugar/glucose and turns it into energy and you will lose weight. Of course, you need to consume less food as well.  Since Type I diabetics are using insulin to help control their blood sugar/glucose levels, exercise also helps them.  But they need to be careful and be aware of hypoglycemia or, as I call it, “going low.” I can totally feel for anyone diagnosed with hypoglycemia alone, it is not a good feeling when your blood sugar levels bottom out from either too much exercise and not enough food to cover the insulin.  You feel shaky, light-headed, confused, and sometimes, at least for me, I have also experienced numbness in my hands, tongue, etc.  I know that some diabetics who go low have been arrested because the police thought they had been drinking and were confused.  That is why you need to test your blood sugar often to make sure you are not too high or too low. It’s a Catch 22 situation.  Well, that’s enough for my blog today.  I will keep blogging about Diabetes in the future.