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The Opioid Crisis, Lobbying, and the Amicus Brief

By | Articles, Class Action, Personal Injury, Tort Reform, Uncategorized

Definition of opiate: a drug (such as morphine or codeine) containing or derived from opium and tending to induce sleep and alleviate pain. We are having an opioid crisis in America.

One of the most powerful lobbying groups in Washington is the U.S. Chamber of Commerce. Last year the Chamber spent over $100 million on federal lobbying.  However, the Chamber’s influence does not stop at lobbying congress. The Chamber also lobbies the courts through Amicus briefs. The goal is to avoid responsibility for the opioid crisis. Amicus briefs have become a favorite tool for lobbying groups across the country.  

Ohio was one of the first states to initiate lawsuits against major opioid manufacturers to combat the opioid crisis. Against Ohio, the manufacturers argued every defense under the sun to prevent themselves from taking responsibility for the opioid crisis in America. The amicus brief argued Primary jurisdiction, Preemption, and First and Fifth Amendment principles. The Primary jurisdiction argument is that the court does not have the authority to adjudicate the lawsuit. The Preemption argument is based on a hypothetical ending with the manufacturers being forced to commit heinous acts. And finally, the First and Fifth Amendment arguments proposed that drug manufacturers cannot be forbidden from fraudulently marketing. They want to be able to continue to fraudulently market to continue to push the opioid crisis.

Most of these arguments don’t pass the sniff test but that’s not really the point. Preemption was based on the FDA forcing manufacturer conduct.  The Chamber simultaneously argued that the FDA has limited powers and cannot oversee the manufacturers. The focus of these Amicus briefs is persistence. By persistence, I mean the same way a river is persistent against a rock. The arguments don’t need to make sense, they just need to muddy the waters. The goal of their Amicus brief is to make it impossible to sue drug manufacturers.

Opioid manufactures are persistent, in fact, so persistent that they’ve had a chilling affect on one case in particular.  Mr. Caltagirone is a man who was prescribed a fentanyl laced lollipop for migraines, but unfortunately, Mr. Caltagirone  became addicted. He went in and out of treatment, and eventually died from an accidental methadone toxicity. Prescribing fentanyl for migraines is a bit overzealous, it also sounds insane, and that’s because it is insane. Fentanyl is designed to provide relief for cancer patients in around the clock pain, not for migraines.

Mr. Caltagirone’s estate sued the manufacturer of Actiq for continuing to illegally conduct off-label promotion and in 2008, the manufacturer of the fentanyl laced lollopop  paid the government $425 million dollars as a settlement for off-label marketing. Unfortunately, this is business as usual, no one was forced to stop selling a product, and no one went to jail. The only punishment was a drop in the bucket fine. I’m not sure why, but the government doesn’t understand Economics. When someone makes a billion dollars profit, and only has to pay 40% of the profits back in fines, than there is no incentive to stop the immoral conduct.

According to the DEA, more than 6 million fentanyl prescriptions are dispensed each year. There are not 6 million cancer patients who meet the criteria for fentanyl. Most experts  estimate the need being closer to 3 million.  The trial court dismissed Mr. Caltagirone’s case and it is now on appeal.  The Chamber filed an amicus brief for the appeal in Pennsylvania. The Chamber’s amicus brief argued that Plaintiff’s attempt to enforce the FDCA through a state law tort claim stands as an obstacle to the FDA’s discretion and is preempted.  That precise argument is also being made by the opioid manufacturers in Ohio. The opioid manufacturers are attempting to stretch Buckman’s precedent into an all encompassing force field.  They want Buckman to protect all drug and medical device manufacturers from state tort claims, but so far it is not working. It’s no coincidence that the U.S. Chamber of Commerce is filing a brief in an individual drug death lawsuit that happens to support other arguments they are making across the country.
 
This isn’t the first time the Chamber has used this strategy to fight the opioid crisis. For years, the Chamber has filed amicus briefs with the purpose of narrowing the law. Their goal is to make it impossible to sue drug manufacturers responsible for this opioid crisis.  The last few years has seen a ramped up effort by the chamber. Now the Chamber seems particularly focused on thwarting arguments against opioid manufacturers. Most of the opioid lawsuits out there haven’t made it far enough to have these issues decided but If the drug industry is able to  use individual cases to stack the legal deck in their favor, governmental entities, and other individuals may never get a fair day in court.
 
 

 

Driver Dead and Two Air Lifted to Area Hospitals

By | Articles, Car Accidents | No Comments

Rollover Crash in Salt Lake County

Emergency crews responded to a rollover crash Sunday morning. Two vehicles that collided on Redwood Road early Sunday morning caused one fatality and two serious injuries. According to the investigation the three men were not wearing seat belts. One man was pronounced dead at the scene and two were airlifted to local hospitals.

The crash occurred west of Utah Lake early Sunday Morning and the investigation shows one of the cars tried to pass the slower moving vehicle. As a result of the car trying to pass the slower vehicle, the cars collided and caused both vehicles to go off the west edge of the road.

After the collision, the driver was ejected after rolling the vehicle into a farm field. The driver was identified as Delfino Morales of Payson. Mr. Morales died at the scene, his passenger Ernesto Ramos suffered serious injuries and was taken to an area hospital by helicopter.

The second vehicle rolled, re-entered the road, and landed on its wheels in the southbound lane. The second driver Luis A. Barralaga, suffered serious injuries and was taken to an area hospital by helicopter.

I-215 Closed in Rollover Crash

A rollover on I-215 caused major traffic delays during the evening commute Monday evening and according to Utah Highway Patrol, speed was a major factor. A Dodge Ram pickup was traveling northbound on I-215 at a high rate of speed and the driver attempted to take the 4700 South off-ramp. Unfortunately, the car was traveling too fast and the driver lost control.

The pickup rolled twice after it hit the sound wall, and finally came to rest on its wheels. The driver appears to have been wearing his seat belt but was wearing it improperly. The rollover caused the driver to be thrown into the back seat and partially ejected out the rear window. The driver was transferred to the hospital in critical condition and the I-215 ramp was closed for about 90 minutes.

Why do Truck Accidents Happen

By | Articles, Trucking Accident, Wrongful Death | No Comments

“Trucking accidents are defined as vehicle collisions involving tractor trailers, 18-wheelers, semi-trucks and other commercial vehicles that cause personal injury and/or property damage.

Trucking accidents are pretty common on our roadways.  Truck drivers receive training to prepare them for their career, but human’s will never be perfect. The law does not require perfection, but it does require care. Negligence is when that care is breached and is common in trucking accidents. Numerous truck drivers are mindful and follow the rules, but individuals who don’t follow the rules cause catastrophic damage that often results in death or serious injury.

Trucking accidents are usually caused by driver mistake, careless hiring, or improper payloads. The first driving mistake is speeding. Second is driving while affected by medications or liquor. Unfortunately, trucking accidents mostly involve a driver driving while exhausted. In spite of the legislature’s best efforts. Drivers still ignore the hours of service controls which are intended to shield drivers from driving too long without satisfactory rest periods. Unfortunately, some drivers disregard these standards and increase the danger of nodding off. Sleeping often occurs at the worst possible time, and results in poor reaction times.

Cases of careless hiring often include neglecting to investigate a driver’s background. It is careless to hire someone who’s past is marked by criminal traffic offenses. It is also careless to hire somebody with a substance abuse past. Allowing an unsafe or unfit driver on the road opens the business to liability. Tragically, trucking organizations commonly attempt to deny any obligation to those injured by their drivers. The organization’s most common tactic is asserting that the driver is self employed. The adversarial process inherit in our system is why it is critical to become as educated as possible about your specific situation.

Improper payloads are common and occur at the point when a trailer is over-burden or unevenly stacked. The outcomes that result from trailers that are improperly loaded are unfortunate, trailers that are overloaded are at substantial risk of causing an accident. Braking becomes difficult with an overloaded payload. If the truck is driving too quick or following too closely an accident is almost always going to occur. Unevenly stacking trailers, or neglecting to guarantee that payload is legitimately secured, can likewise be perilous. An uneven payload influences the trailer’s focal point of gravity and increases the possibility of a jackknife accident.

 Remember, knowledge is power. Come back for more posts, and always make decisions that are reflective and not fear based.

 

Settlement

By | Articles, Bike Accidents, Car Accidents, Casino Accidents, Construction Accidents, Dog Bites, Medical Malpractice, Personal Injury, Trucking Accident, Wrongful Death | No Comments

You’ve reached a settlement. The journey that began when someone’s careless actions hurt you,  has finally come to a close. Besides feeling relief, you’re probably wondering what happens next. What is required in a settlement by both the plaintiff and defendant. There’s several steps that occur between the time a case settles and having a check in your hands. Each process is contingent on what kind of settlement is reached. The different types of settlements are primarily based on if the person hurt is an adult, minor, or if it involved the wrongful death of a person.

“A Settlement is an official agreement intended to resolve a dispute or conflict.”

Whenever a case settles, the parties need to sign a release agreement. As part of the settlement, your attorney will send you a Release Agreement to sign. Your attorney will also send another document called a stipulation to dismiss. It’s imperative to put in a timetable for payment in the release. The Release Agreement is a document that specifies the terms between the parties. For example, in exchange for $250,000, you agree to release Mr. Jones from the car accident. Upon receipt of the settlement check, it is deposited in a trust account. Once the settlement funds become available, a check to you for your portion should be delivered.

When a claim involves injuries sustained by someone under the age of 18, the settlement requires court approval. A petition is submitted to the court specifying the terms of the settlement. The petition sets forth the amount agreed to, case expenses and legal fees. It also specifies why the agreement is in the best interests of the child. A Judge will then schedule a hearing where your petition will be presented to the court. This hearing is largely a formality but it is still important to take it seriously. Once the Judge affirms the petition, you will be requested to consent to a Release Arrangement as described above.

In a wrongful death lawsuit, there are usually claims for pain and suffering and wrongful death. Pain and suffering refers to the conscious pain and suffering of the decedent prior to death. Wrongful death refers to the monetary losses sustained by the beneficiaries of the decedent’s estate, such as loss of income, loss of maternal guidance, advice, and burial expenses. The portion of the settlement allocated to wrongful death is divided according to the loss sustained by each beneficiary.

What’s important to remember is that every case is complicated. A settlement is one of the last steps involved in litigation, but it’s definitely not the finish line.

Truth about Coffee

By | Articles, In the News, Personal Injury, Tort Reform | No Comments

You may have not heard of the term Tort reform before because it’s not very common, but it’s extremely important. Tort Reform is a war against consumers, it’s as simple as that. The best example of tort reform’s campaign against consumers is what happened in our country when a grandmother from New Mexico was severely burned by a cup of coffee. The coffee was not just “hot,” but dangerously hot. McDonald’s corporate policy was to serve the coffee at a temperature that caused serious burns. Ms. Liebeck was wearing sweatpants that kept the coffee against her skin. She suffered third-degree burns and required skin grafts. Liebeck’s case was also not far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee. Including reports of third-degree burns, and had paid settlements in some cases. Moreover, the Shriner’s Burn Institute published warnings to the food industry that its members were causing serious burns by serving beverages above 130 degrees Fahrenheit.

Stella Liebeck, was 79 years old, sitting in the passenger seat of her grandson’s car with a cup of coffee. After the car stopped, she tried to hold the cup between her knees while removing the lid. However, the cup tipped over, pouring scalding coffee onto her. She received third-degree burns over 16 percent of her body, requiring hospitalization for eight days. She also received skin grafting, scarring, and disability for more than two years. The areas which had full thickness injury had to have skin grafts for coverage. Ms. Liebeck brought a suit against McDonalds and was apparently willing to settle for $20,000 but McDonalds made a strategic decision to fight the claim. This turned out to be a bad business decision for McDonalds but a good decision for the rest of the public.

McDonalds kept their coffee temperature between 180 and 190 degrees Fahrenheit. They used this temperature based on a consultant’s advice that this was the range needed for the best taste. McDonalds later admitted that they had not studied the dangers associated with these high temperatures. It is also important to note that other fast food restaurants sold their coffee at significantly lower temperatures. Most coffee served by people in their homes is in the 135-140 degree range.

The Plaintiff’s expert testified that liquids at 180 degrees would cause a full-thickness burn to human skin in two to seven seconds. Having the temperature of the liquid below 155 degrees causes the likelihood of a burn injury to fall exponentially. Essentially, if the coffee served to Ms. Liebeck was 155 degrees, she would have avoided significant injury when she spilled it.

The case is considered by some to be an example of frivolous litigationABC News called the case “the poster child of excessive lawsuits”.  McDonald’s asserts that the outcome of the case was a fluke but we know better. Mcdonald’s attributed the loss to poor strategy, but we know it was because McDonald’s simply didn’t care about its customers. Detractors also highlighted the fact that Liebeck spilled the coffee on herself rather than any wrongdoing on the company’s part. Liebeck’s opponents argued that the vast majority of judges who consider similar cases dismiss them and this should have been too.  The jury disagreed due to McDonald’s complete misunderstanding of Liebeck’s injuries. The jury ended up awarding $200,000 in compensatory damages and $2.7 million in punitive damages. The compensatory damages were reduced by 20 percent for Liebeck’s contribution. Even though the punitive damages award seemed high, it only amounted to about two days’ worth of coffee sales.

One of the main benefits emanating from the trial was revealed when a post-verdict investigation showed that that temperature of the coffee at the local Albuquerque McDonalds had been reduced to 158 degrees Fahrenheit, a level still dangerous but less likely to cause injury if spilled. Perhaps the system worked after all. A products liability case with a high monetary award resulted in a much safer product. The case was not so “frivolous” after all.

Personal Injury

By | Articles, Personal Injury | No Comments

Every month, millions of us pay our car insurance premiums. We also pay our homeowner’s insurance premiums, and we pay premiums out of our paychecks for health insurance, life insurance, and more. We pay for insurance to protect us and our loved ones from the unthinkable: an accident, severe injuries, a fire that burns our house down, a tornado, and even death. More than that, we pay so that our families and neighbors won’t be left with the bill from these events.

It’s part of being a responsible, decent human being. Every single one of us has made a mistake in the past, and when that mistake results in a car wreck that injures someone else, we have an obligation to that person to make sure they’re taken care of when the medical bills come. We also have an obligation to our families and those who depend on us, because if we don’t have insurance, we could be facing lawsuits that could threaten everything we’ve worked hard for: our homes, our savings, and even our future earnings.

There are at multiple parties in any accident, such as the responsible party, the victim, and the insurance companies. The responsible party and the victim met their responsibility to each other by purchasing insurance coverage, but what happens when the insurance company doesn’t want to meet its responsibility? What happens when a victim has $15,000 in medical bills, but the insurance company only wants to pay out $5,000, even though the insurance policy insures up to $25,000 in damages?

Every day across this country, that scenario plays out. Millions of victims face off with an insurer who looks at them as an individual without the power or the resources to force the insurer to meet its obligations. You’re injured, you’re out of work, and you’re in a hurry to pay for your bills. Insurance companies know this, and they’ll use that to their advantage.

Even though you paid your premiums, and even though the person responsible for your injuries paid his premiums, his insurance company wants to step over a dollar to pick up a dime at your expense. The insurance company wants to get something for nothing. They want to take our hard earned money that we spend on insurance premiums and deny us the coverage we’ve paid for when we’re sick or injured.

Insurance companies spend hundreds of millions of dollars each year portraying accident victims as greedy, opportunistic individuals looking to get rich quick. The insurance companies say that lawsuits aren’t about recovering money for medical bills; instead, lawsuits are about making a profit on an accident. If that was the case, we’d have an epidemic of people in this country deliberately getting hurt. We don’t.

We have plenty of people who commit insurance fraud by pretending to be injured, but what we don’t have are people deliberately getting into accidents in order to suffer actual catastrophic injuries. It’s common sense: you can’t pay anyone to get severely burned, suffer paralysis, or risk a lifelong complication from a catastrophic injury.

The history of personal injury and the facts underlying the rise of personal injury as a distinct area of law completely contradict what insurance companies portray as reality.

The History of Personal Injury

Personal injury hasn’t always been a distinct area of the law. For the vast majority of human history, injuries were covered under the principle of retribution, or what you know as “an eye for an eye.” If you injured another person, you were to be repaid in the same manner. Over time, this evolved into more civilized forms of legal redress, with the rise of both statutes or written laws and common law or judge made law.

There were two major events that led to the rise of legal remedies for injuries to individuals: one was the Industrial Revolution, and the other was the rise of the automobile. With the Industrial Revolution, workplace injuries were becoming more common, which led governments to pass laws that allowed for workers to sue their employers for their injuries.

Over time, the government began to view injury lawsuits as a potential threat or hindrance to commerce, and Worker’s Compensation was worked out as a solution. In order to limit lawsuits by workers, a system of insurance coverage was worked out to compensate workers for on the job injuries. This kept such cases out of the courts, and limited the potential for large verdicts that could financially cripple an employer and result in the loss of jobs.

By the 20th century, two landmark cases, Palsgraf v. Long Island Railroad Company and Donoghue v. Stevenson, established proximate cause and negligence. Proximate cause established certain injuries as a natural consequence of certain acts. Negligence established the idea that a duty of reasonable care was present between a producer and a consumer, as well as any neighbor to the consumer.

What does it mean to be a “neighbor” to a consumer? Before Donoghue, only the tortfeasor-the person who commits a tort that injures someone-and the immediate party could be part of a negligence claim. That is, if you purchased a beer that was poisoned due to the negligence of its manufacturer, and you gave your neighbor that beer at a party and they were poisoned, your neighbor could not sue because they were not a party to the original transaction. They didn’t buy the beer, you did. The tortfeasor didn’t owe them a duty of care, he only owed the purchaser of his product a duty of care.

Donoghue extended the concept of negligence beyond immediate parties who purchased a product to end users who consumed the product. It established that the duty of reasonable care to ensure the safety of a product extended beyond the producer and the purchaser to anyone who consumed the product.

These two cases revolutionized what would later become a distinct field of law: personal injury. By the 1960s, with the rise of the automobile as a mode of personal transportation and the corresponding increase in car accidents, many attorneys and firms were suing to recover damages for injuries suffered in car accidents. However, the damage awards were small.

Then came Unsafe at Any Speed by Ralph Nader, a book that detailed the American auto industry’s deliberate decisions to design their cars without regard for passenger safety. The most famous chapter of the book dealt with the Chevrolet Corvair, which was a rear-engine vehicle with a swing-axle suspension design. General Motors knew that the car was unstable; one of their suspension mechanics, George Caramagna, fought internally to include an anti-sway bar on the Corvair. He was overruled because General Motors wanted to save money.

As a result, General Motors manufactured the Corvair for four years between 1960 and 1964 without the anti-roll bar, and Corvairs were prone to roll over with two or more passengers.

If you’ve ever wondered why your car has an automatic transmission organized by P R N D L, it’s because of Ralph Nader’s book. Early automatic transmissions were organized by a P N D L R, which led to drivers moving the shift lever down to reverse rather than low gear by accident. In addition, your car door has a “Nader bolt” which prevents the car door from flying open in a crash. From 1966 onward, every car sold in the United States has been equipped with a Nader bolt.

This is because manufacturers, like insurance companies, often decide to step over dollars to pick up dimes at the risk of your safety and well-being. After all, what can you do? You’re just an individual. Big corporations have a massive advantage in terms of resources to fight off lawsuits.

They also have huge resources to control the narrative in the media when it comes to lawsuits. That’s why you hear all about the ridiculously high punitive damages corporations face in personal injury or class action lawsuits. What you don’t hear about is the deliberate decisions corporations make to cut corners by risking the lives of consumers.

The most infamous example of this is the 1971 Ford Pinto. Ford knew that the Pinto’s design was flawed: in a rear-end collision, the fuel tank would rupture and cause fires, but Ford’s accountants wrote a memo detailing that it would be cheaper to settle wrongful death lawsuits resulting from the defect than it would be to fix the design flaw. How much would it have cost Ford to make the Pinto safe? $11 per car.

Ford chose to put a car on the road that would burn people alive in an accident, as opposed to spending a mere $11 per car to fix the design flaw that would kill 900 people. Ford wound up paying out millions of dollars in wrongful death settlements for its decision to save $11 per car. 900 families lost their loved ones as a result of Ford’s willful decision to manufacture a car that would burn its occupants alive in a crash.

After the Corvair and the Pinto, it was no wonder that the first television advertisement for a personal injury law firm premiered in 1979.

As time went by, the efforts of insurance companies and big corporations to re-victimize people who suffered horrible injuries grew over time. In addition to dealing with their injuries, victims had to contend with insurers and businesses portraying them as greedy for simply wanting their medical bills paid. At no point did the insurance companies and big businesses ever acknowledge that one of the reasons personal injury awards and settlements were so expensive was a deliberate decision on the part of insurance companies and businesses to avoid responsibility and limit risk.

Lying About the Victim: How McDonald’s and State Farm Added Insult to Injury

February 27, 1992 began for Stella Liebeck like a normal day begins for many of us: waiting in a drive through lane for our coffee. Liebeck’s car didn’t have cup holders, so her grandson parked the car in order for her to add cream and sugar. When Liebeck placed the coffee cup between her knees and and pulled the lid off of the cup, the coffee spilled into her lap. It scalded her thighs, buttocks, and groins, resulting in third degree burns. Liebeck was in the hospital for eight days, and she went from 103 lbs to 83 lbs, and she was partially disabled.

Originally, Liebeck tried to get $20,000 to cover her $10,500 in past medical expenses, her $2,500 in anticipated future medical expenses, and the $5,000 in lost income her daughter suffered by missing eight weeks of work to take care of her mother. McDonald’s offered just $800, even though it was undisputed that Liebeck had at least $10,500 in medical expenses.

Liebeck got a lawyer, who filed suit and offered to settle with McDonald’s for $90,000. Morgan then offered a settlement of $300,000 after a mediator recommended a $225,000 settlement. McDonald’s refused all of these attempts to settle. At trial, Liebeck’s attorney showed internal documents from McDonald’s that proved McDonald’s knew of 700 other incidents where its coffee had burned people. McDonald’s had settled claims for over $500,000 in the past.

Despite the fact that McDonald’s knew its required coffee temperature of 180-190 degrees was unsafe, and that it had resulted in 700 other burn incidents, McDonald’s continued its unsafe practices. Inn fact, McDonald’s quality control manager Christopher Appleton said that 700 injuries weren’t enough of a reason to change the practice.

The jury awarded Liebeck $200,000 in compensatory damages, but reduced this by 20% because Liebeck was found to be 20% at fault. The jury also awarded $2.7 million in punitive damages, which the judge reduced to $480,000. Eventually, the case settled out of court.

McDonald’s could have settled the entire case for $20,000. Instead, they gambled that they’d be able to push Liebeck around and give her a mere $800 or nothing at all for her $10,500 in past medical expenses and her $2,500 in future medical expenses. McDonald’s stepped over a dollar to pick up a dime, and lost big.

After the case, McDonald’s and advocates of tort reform blamed the victim. Even though McDonald’s knew keeping its coffee at scalding temperatures was dangerous, and had burned 700 other people, McDonald’s kept risking injuries to its own customers. Those who defended McDonald’s called Liebeck greedy, and held her up as a pariah. They misrepresented the facts by acting as if Liebeck had put the cup between her legs while she was driving the car.

Stella Liebeck wasn’t greedy: she only asked for $20,000 to cover her medical bills and the time her daughter missed from work. McDonald’s got greedy, and in their greed they lost a lot more than $20,000.

Sadly, this kind of behavior isn’t limited to businesses. Insurers get greedy, too. Everyone reading this article has seen the State Farm commercials, and you know the jingle: “Like a good neighbor, State Farm is there!” What happens when an insurance company isn’t a good neighbor?

In 1981, Curtis Campbell and his wife Inez Preece Campbell were driving along a highway in Cache County, Utah, when he decided to pass six vehicles. When he moved into the other lane, he drove directly into the path of Todd Ospital, who swerved to avoid Campbell and hit Robert G. Slusher. Ospital was killed, and Slusher was permanently disabled.

Witnesses and investigators pinned the fault on Campbell, and his insurance company State Farm decided not to settle with the Slusher and Ospital, who were willing to settle for the policy limit of just $50,000. State Farm told Campbell that he had no liability for the accident, and that there was no need for Campbell to get his own attorney.

The case went to trial, and the jury found Campbell 100% at fault. They awarded damages of $185,849. State Farm then refused to pay the verdict in excess of the $50,000 policy limit, and it refused to post a bond for Campbell to appeal the verdict.

In 1984, the Campbells settled with Slusher and Ospital’s estate, reaching an agreement whereby the Campbells would pursue a bad-faith claim against State Farm for the failure to pay the veredict. Slusher and Ospital’s attorneys agreed to represent the Campbell’s in the bad faith suit; additionally, the parties agreed not to seek to satisfy the original judgment against the Campbells. Slusher and Ospital’s estate would receive 90% of any verdict against State Farm.

Five years later, in 1989, the Utah Supreme Court denied Campbell’s appeal of the original verdict. State Farm paid the entire judgment, but the Campbells filed suit against state farm for bad faith, fraud, and intentional infliction of emotional distress.

State Farm lost the trial, and the jury awarded $145 million in punitive damages to the Campbells. The Utah Supreme Court upheld the verdict, and State Farm appealed to the U.S. Supreme Court, which overturned the verdict and remanded the case for reconsideration to the Utah Supreme Court. The Utah Supreme court then reinstated the original $145 million punitive verdict on remand, and State Farm wound up paying $145 million to resolve a case that could have been settled for $50,000.

There was no greed on the part of the Campbells, the Ospitals, or Robert Slusher. Curtis Campbell and his wife wanted State Farm to settle the case using the insurance policy they had paid for, and the Ospitals and Robert Slusher only wanted $25,000 apiece. The Campbell’s insurance policy had a limit of $50,000 which would have covered the $50,000 settlement, but State Farm had a different number in mind: zero.

That’s what State Farm wanted to pay: zero dollars for the death of Todd Ospital and the disability of Robert Slusher. State Farm wasn’t just willing to burn Todd Ospital’s family and Robert Slusher; they also tried to rip off their own policyholders, Curtis and Inez Campbell. By stepping over $50,000, State Farm suffered a $145 million loss due to its own greed and stubbornness. State Farm was willing to let its own policyholder lose all of his assets to satisfy the original $185,849 verdict, even though he had paid his insurance premiums.

Why They Do It

Today, big business and insurance companies alike insist that personal injury settlements are out of control, that the costs of lawsuits are driving businesses under and causing their employees to do their jobs. What these businesses and insurance companies have in common is simple: they want it all for nothing. They want your insurance premiums, but they don’t want to cover you when you have an accident.

They want your business, but they don’t want to treat you like a valued customer by making sure that their products are safe.

Why do they do it? Because they can, and because it works. If you’re the typical accident victim, you probably feel guilty for going to an attorney. You think lawsuits are for people who are trying to get rich by cashing in on their injuries. Nothing is farther from the truth.

Stella Liebeck would give her settlement back in a second if it meant that she never had to experience 190 degree coffee scalding her vagina. Todd Ospital’s family would trade their share of $145 million if it meant bringing Todd back. Robert Slusher would give up his share of the money if it meant living a normal life, rather than being permanently disabled.

These people suffered once from their injuries and the deaths of their loved one, and the companies that were at fault caused them to suffer again and again by lying and misrepresenting them as greedy, selfish people. Insurance companies and businesses don’t do this just to be cruel to the victims of their negligence and deliberate acts; they do it to intimidate you when you’re injured. They do it to deter you from seeking what you’re entitled to when you’re injured, or when your loved one dies as a result of their wrongdoing.

You’ve likely heard the words tort reform, but you never knew what it was. Tort reform is the principle that a company can offer $800 to a woman who has $10,500 in injuries, and refuse to take responsibility for the deliberate decisions they made that led to those injuries. Tort reform is the idea that an insurance company can take your money as a policyholder and hang you out to dry when you’re in an accident by leaving you on the hook for a $185,000 verdict.

When you’ve been injured or your family member has been killed through the negligence or wrongdoing of a company, and the insurance company refuses to deal with you fairly, they’re stepping over dollars to pick up dimes at your expense. You shouldn’t feel ashamed to stand up for yourself. You shouldn’t be conned into insulting the victims of McDonald’s and State Farm by defaming them as greedy. After all, you could be next.

Most of all, you should understand that by supporting tort reform, you’re just giving a bailout to businesses that routinely make deliberate decisions to choose dollars over safety and human life. You’re doing so at a risk to your own health and safety, because if insurance companies and big corporations can put a price on your life that will enable them to make a profit off of your injury or death, they will.

We know this, because they already have. That’s why personal injury lawyers will never run out of work: the greed of insurance companies and big businesses, and their disregard for the safety and well-being of others.

The Personal Injury Education Center of Utah wishes you a safe and happy life, free from injury or wrongful death, but if you ever do have to face such a horrific outcome, don’t be ashamed to stand up for yourself. It’s not greedy to expect the people responsible for your injury or the death of a loved one to pay for their actions. When they refuse to deal fairly with you, they put themselves at risk of a big court verdict. That’s not your fault; it’s theirs.

PIP – Personal Injury Protection

By | Articles, Car Accidents, Casino Accidents, Personal Injury, Spine and Back Injuries, Train Accident, Trucking Accident | No Comments

The average person lives their life without ever going to court for anything more serious than a traffic ticket. Our lives are filled with ordinary day to day events, such as work, errands like grocery shopping, school, ball games, family cookouts and dinners, and the like. Most of us will never know what it’s like to be in a serious car accident, and we’ll never see a friend or family member go through the aftermath of a catastrophic personal injury.

Most car accidents are minor, and the injuries consist of some bumps, bruises, and muscle soreness. For these minor accidents, Utah law mandates Personal Injury Protection, or PIP. What’s PIP? It’s $3,000 in insurance coverage for the average driver, and it provides a predictable means of resolving most injuries in a car accident.

No one wants a lawsuit, and PIP is a quick, easy way of covering injury expenses for those involved in an accident. Even if you’re at fault in a wreck, you can still get coverage for your injuries from the PIP on your insurance policy. The reason PIP is the law is to avoid lawsuits by making it easy to pay for medical expenses from minor injuries. In fact, before you can sue for an accident injury in Utah, you have to first exhaust the $3,000 of PIP on your insurance policy.

This covers both the at-fault party and the victim in a car accident, because each party can pay for their minor injuries via their PIP, coverage thereby keeping the courts free of minor lawsuits with under $3,000 in medical expenses. This is good news for you if you’re at fault in an auto accident, because the other party can simply go to their insurer to get their minor injuries covered on their insurance policy. It’s also good news for you, because as the at fault party, you’ve got no grounds to recover for your injuries from the other party. Thanks to PIP, you can to your insurer and get those minor medical issues taken care of, as long as they’re $3,000 or less.

At the very least, you’ll save $3,000 in overall medical expenses, even if you happen to be at fault for the accident.

You won’t have to wait six months to three years, either. That’s how long it can take a personal injury lawsuit to settle or be resolved in a trial. Regardless of whether or not you’re the person to blame, or the victim, PIP covers you no matter what for those bumps and bruises and trips to the chiropractor’s office. It ensures that you won’t be choosing between buying food for those family cookouts and paying for your minor medical expenses after an accident.

The Utah Educational Center for Personal Injury hopes you never have even a minor injury, but if you do, your PIP will be there for you.

ATV Accident

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Utah is an outdoor state. With national landmarks, ample parks, and the sixth largest amount of boatable water per capita, Utah is a state where there are many opportunities to enjoy ATVs, boats, and RVs. In the wintertime, Utah Parks and Wildlife prepares snowmobile trails, and people as young eight years of age can operate a snowmobile. Just as cars and trucks come with risks, ATVs, boats, and other OHVs do as well.

That’s why it’s important to be safe. Utah has strict laws about drinking and boating, and any boat with a 50 horsepower or higher motor requires $25,000 in liability coverage, along with $50,000 for bodily injury and death, and $15,000 in property damage coverage. What’s important to note about this is that there is no Personal Injury Protection (PIP), which means that the only way to recover damages is through a legal claim. This includes motorcycles, so if you’re injured in a motorcycle accident, the rules will be different from those governing a car accident.

Utah does not require insurance coverage for ATVs if they are operated on highways designated for Off-Highway Vehicle (OHV) use; however, if an accident takes place on land owned or leased by the owner of the ATV, their homeowner’s insurance may cover injuries or property damage, depending on the language of the policy.

As with any accident, your first priority should be getting medical attention for any injuries. Even if you don’t have visible injuries, get checked out by a medical professional to be sure. The sooner you identify an injury, the easier it will be to get treatment, and the less dispute there will be later on as to whether or not your injuries are the result of an accident with an ATV.

Your second priority should be documenting any and all information related to the accident. Was the operator of the ATV or the boat drinking? Were they in compliance with boating regulations on right of way, or were they operating an ATV on a street not designated for OHV use? Who were the witnesses to the accident?

Contacting the appropriate law enforcement agencies can be critical to documenting the facts surrounding an accident, not to mention making recovering compensation for any medical expenses or property damage.

If you are injured, you’ve got four years to file a claim from the date of the accident. As with any other accident, Utah is a comparative fault state. This means that the jury will subtract the percentage of your own fault or negligence from your overall award. That’s all the more reason to exercise safe driving habits and follow the laws of the trail or the water in operating a boat or an OHV.

The Personal Injury Education Center of Utah hopes you enjoy everything Utah has to offer, on and off road, but remember to be safe.

Wrongful Death

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At some point in your life, you’ve likely known someone who was injured in an accident, either at work or in traffic.  Accidents are a fact of life, and unfortunately, sometimes accidents result in the death of an individual.  When this happens, Utah law provides for the compensation of dependents and family members.  However, most people have no idea where to begin when their loved one dies as the result of the negligence or wrongdoing of another party.

Not a single person reading this sits around contemplating the wrongful death of a family member or a close personal friend.  Tragedies are unthinkable outcomes, and wrongful death is not an everyday occurrence in our lives.  We live our lives among our friends and loved ones, secure in their company and comforted by their continued presence in our day to day lives.

A wrongful death is the absolute worst case scenario for many of us, but if and when it happens to your spouse, your child, or someone you know, a crash course in the law is usually what ensues. At a time when you’re grieving the loss of someone close to you, the law is the last thing on your mind.  That’s why you need to contact an attorney.

An attorney is your advocate during the most unimaginably heartbreaking time.  They’re your guide, and when you’ve lost a loved one, you need to focus on healing and recovery.  Very often, the person you lose can be a breadwinner, a provider, a mother, a father, an adult child taking care of elderly parents or a disabled spouse or child.  The loss isn’t just emotional; it’s financial.  Life insurance and the estates a deceased individual leaves behind are often not enough to ensure the future of their surviving relatives.

In the event that a child dies as a result of negligence or wrongdoing, parents and siblings are left with the knowledge that no amount of money can bring their child back to life.  However, civil damages are intended to both compensate a loss that cannot be quantified, and deter the wrongful conduct that resulted in the loss of a child.

Second, Utah law limits wrongful death claims to the heirs of the deceased victim, or a personal representative of the deceased. Who are the heirs under Utah law?

1. A surviving spouse, such as a husband or a wife.
2. A surviving adult child.
3. A surviving parent or parents either natural or adoptive.
4. The surviving stepchildren, if they are under 18 at the time of death and dependents of the deceased person.
5. Any other blood relatives listed in Utah’s inheritance laws.

The presumption under Utah law is that one of the heirs will take on the role of personal representative for the deceased; however, if the deceased died with a will or an estate plan, they may have named a personal representative who can also file a wrongful death claim. The personal representative has to file in civil court. This is the person who will contact and hire an attorney to deal with those responsible for the wrongful death and their insurance company.

Third, you have to file within two years of the deceased’s death.  If the negligent party is a government entity, you only have one year to file.

Finally, you can recover damages under Utah’s wrongful death law. These damages can include the following:

1) Compensatory damages for:
-Medical expenses related to the injury causing the death.
-Lost wages, such as future wages and benefits lost.  This means that you should be able to  recover the wages the person would have made if they were still alive to work.
-Pain and suffering resulting from the death.
-The loss of companionship, guidance, and care.  Very often, the deceased will be a spouse or  parent whose loss cannot be quantified in mere lost wages.  Children rely on their parents for  guidance and care, and spouses rely on their other half for companionship and care as well.

2) Punitive damages: these damages are intended to send a message, and that message is that the negligent or intentional behavior that resulted in a wrongful death should not be tolerated or repeated. Punitive damages are awarded to punish intentional or negligent behavior, and they are also awarded to discourage that behavior in the future.

We all hope that we never have to deal with the aftermath of wrongful death, but if and when we do face that horrific possibility, knowledge is the key.  The Personal Injury Education Center of Utah is a resource to give you the knowledge you need when the unthinkable occurs.

United States v. Carroll Towing Co.

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What Happened: The case was the result of the sinking of the barge Anna C that took place on January 4, 1944 in New York Harbor. The Pennsylvania Railroad Company chartered the Anna C from Conners Marine Company, which was loaded with flour owned by the United States. Before the accident, the Anna C was moored at Pier 52 on the North River along with several other barges. The barges at Pier 52 were tied together by mooring lines and one barge at Pier 52 was tied to another set of barges at the adjacent Public Pier. On the day of the accident the tug Carroll was sent to remove a barge from the Public Pier. In the process of removing the barge, the line between the barges at Pier 52 and the barges at the Public Pier was removed. After the removal of the line, the barges at Pier 52 broke free. This resulted in the sinking of Anna C. The United States, lessee of the Anna C, sued Carroll Towing Co., owner of the Carroll in an indemnity action.

Question Before the Court: Was Defendant negligent in failing to have a Bargee aboard the ship to prevent against such injury?

Court Ruling: If the burden of the preventative the injury is less than the Cost of Injury multiplied by the likelihood of the injury occurring and the injury occurs then the standard of care required would be breached.