August 2012 Archives

August 15, 2012

My Take on the Progressive Insurance Scandal - Did They Defend Their Policyholder's Killer?

The story that Progressive Insurance defended the person "responsible" (I put this in quotes and will explain the legality further on) for the death of a policyholder is completely taking over Twitter and the news circuits following a series of blog posts, tweets, and other correspondence between Progressive Insurance and the family of the deceased, Kaitlynn Fisher, nicknamed Katie.

I have tried to learn as much about this story as possible but there are some conflicting reports. I apologize to those intimately involved with this case, in advance, for any errors or misunderstandings.

The Facts of the case

Katie Fisher, a 24 year old John Hopkins graduate, was killed in an automobile accident on June 19, 2010. The accident occurred at an intersection and an independent witness seemed to indicate that the OTHER driver ran the red light and struck Katie, thereby causing her death. That driver seems to have been insured by Nationwide. Nationwide did defend the case as they are contractually obligated to do, but quickly paid out the entire limits of their auto policy (that amount has not been disclosed). Katie, however, also maintained an UNDERINSURED auto policy. This means that if the other driver does not have enough coverage to pay for your damages (and in the case of a tragic death - no amount is enough) then your own insurance company, in this case Progressive, should cover the difference. Katie was entitled to $100,000 under this policy.

Maryland, however, has very strict "contributory negligence" statutes which hold that if you are even 1% at fault for the accident, then you are barred from recovery. Luckily, here in Rhode Island and Massachusetts, where I practice, we do not have such a strict and incomprehensible law (at least, in my humble opinion.) This law is where the trouble for Progressive began!

Progressive, like all insurance companies, does not want to pay back the money they take from policyholders. Therefore, if they could prove that Katie was even 1% at fault for this accident, then they would not have to pay her estate any of the $100k policy. So, even though the facts seemed to suggest that Katie was not at fault for this accident, and even though, Nationwide already paid the full amount of their policy limits, it was not PROVEN that the other driver was at fault for this accident and Progressive refused to volunteer payment to their policyholders estate. Instead, the estate had to file a lawsuit. And this is where the trouble for Progressive Insurance gets worse!

The attorneys for Progressive Insurance (who are most likely employees of the Company which clearly creates a conflict of interest that no one seems to acknowledge or care about) went about the case as if Katie, their insured was at fault. They called witnesses who placed negligence on Katie and gave statements to the jury arguing that Katie was at fault. This means that Katies OWN INSURANCE company was at her trial, which as a result of her tragic passing she was unable to speak for herself, trying to prove her guilt.

The jury didn't buy it and awarded the family estate over $700,000.

And this is where the proverbial **** really hit the fan!

Katie's brother, Matthew Fisher, took to his personal blog to discuss the case and what his family had been through with Progressive. The story went viral on twitter and is absolutely everywhere now. Progressive initially only made a canned response to all of the Facebook postings and re-tweets that the story presented, but made a formal explanation soon thereafter. They explained that they were within Maryland law to act as they did and that they did not "defend" their policy holders killer, because that person was defended by his insurance company, Nationwide. Matthew Fisher responded with another post describing the way Progressive tried to prove her negligence at trial and RIGHTFULLY stated that this was, in fact, a defense.

It was already too late for Progressive - the public relations nightmare is already at full tilt!

My Take

This story is not unusual. It is only unusual that it is receiving so much attention. The reason every person injured in an accident needs an experienced personal injury attorney, is because insurance companies are only out to protect their own interests. Progressive (at least in Rhode Island) is not one of the worse insurance companies out there, and I almost wish this was an Allstate case because it is perfectly fitting to the way they do business. Nevertheless, insurance companies are corporations first and foremost with an eye on the bottom line - never mistakenly believe, no matter how cute their spokesperson or mascot, that they care about you.

I believe that there is ample evidence here to support a conflict of interest on the part of Progressive Insurance. In Maryland, as in every State, an insurance company is legally obligated to act in good faith. It will be really interesting to see how this story plays out if the family pursues an action against Progressive Insurance directly. If Progressive did not act in good faith, they may be sanctioned by the State, required to pay huge fines, and may end up owing the family much more than the $100k the policy required them to pay. I think it was bad faith, I think it was a terrible business decision, and I wish the family the best of luck in their pursuits.

August 15, 2012

4 Million Bumbo Baby Seats Recalled

Approximately four million Bumbo Baby Seats have been recalled from the manufacturer due to increasing safety concerns. This story from Boston.com was sent to me by a friend and I took notice because both of my children have used and enjoyed the Bumbo seats. My wife and I have always been very careful with the Bumbo seats because there is no seat belt or other restraint to protect our kids and we were aware of the chance of injury. After reading this report, I am not surprised to find that dozens of cases have been reported of children suffering skull fractures and other very serious injuries after falling out of or escaping from Bumbo Baby Seats.

Bumbo Baby Seats were recalled once before several years ago when increased warning labels were placed on the units. While the unit has long since warned parents not to leave children unattended, the new warnings advised parents to never use the Bumbo Baby Seat on a raised surface, such as a kitchen counter, for fear that the child could fall a great distance. Unfortunately, even with the increased warnings, at least 50 known cases have been reported of children suffering very serious injury after falling from a raised surface. Following this new recall, the company that makes the Bumbo Baby Seat is voluntarily providing a free repair kit that includes a safety belt restraint.

If your child was injured while using a Bumbo Baby Seat, you may be entitled to compensation for medical bills, both current and future, and any pain and suffering that your child has experienced or will experience in the future. The reported skull fractures are obviously a very serious injury and can also result in long term permanent brain damage. The compensation may be made by filing a product liability lawsuit against the manufacturer of the Bumbo Baby Seat, and potentially the many retailers selling the product.

If you can prove that a product is defective, then you may be able to place liability on the manufacturer entitling you to compensation. There are three common methods of attempting to demonstrate that a product is defective:

  • Defective product design;
  • Defective product manufacturing;
  • Inadequate or insufficient warning.

From the outset, it looks like a viable case can be made against the manufacturers of the Bumbo Baby Seat under categories one and three above.

Defective Product Design

A product is defectively designed if it is dangerous even when assembled and used correctly. In this case, the fact that children can fall or "roll" out of the chair and injure themselves may be enough to establish negligent design. Furthermore, the fact that seat belts could easily be added to the Bumbo Baby Seat, increasing the safety of the chair, raises the question as to why seat belts were not included from the very beginning. Perhaps, some of these horrible injuries could have been prevented.

Ineffective or Inadequate Warning

The Bumbo Baby Seat was already recalled once for inadequate warnings about using the Baby chair on raised surfaces, but the warnings apparently did not get through to consumers. If it was not clearly explained that children can roll out of the Bumbo Baby Seat causing a fall, then the manufacturer may be liable. If the risk of injury was not clearly expressed, then the manufacturer may be liable.

If your child has been injured while using a Bumbo Baby Seat, contact my office right away for a free consultation. We are experienced product liability attorneys and will begin working on your case right away. A great deal of investigation and discovery will be required to prove that the manufacturer sold a defective product so it is imperative that you contact a personal injury attorney right away. There is never any fee unless we are successful in obtaining compensation for you and your child.

August 14, 2012

Institute for Highway Safety Reveals Increased Concern Over Offset Head-on Collisions

I have previously written posts about the extreme danger of head-on auto accidents and the increased likelihood of serious injury and death. Today, I came across an article discussing a report from the Institute for Highway Safety which highlights the fact that partial overlap front end crashes may be the most dangerous of all collisions. These accidents which may occur on indirect frontal crashes or accidents with a pole or tree, greatly compromise the integrity of the vehicles body and can result in extremely serious personal injury.

Despite great advances in highway safety from the automobile industry, over 10,000 people per year are killed as a result of a car crash. A quarter of such fatalities may come from these so-called partial overlap accidents. Manufacturers score highly for direct frontal collisions, but according to this most recent study, only 3 out of 11 mid and high end vehicles (foreign and domestic) scored "good" or "acceptable" on the partial overlap collision test. The video included in the report is frightening.

The institute points out that on direct front end accidents, the force of the impact is spread across the entire front end of the vehicle allowing it to compress and protect the interior passengers. On a partial overlap accident, the entire force of the impact is isolated in a much smaller area and cars are simply not designed to absorb such dramatic force. The passengers inside experience the most serious of injuries: broken bones, scars, head injuries, paralysis and even death.

A serious auto accident requires a serious law firm. If you have been seriously injured in a front end collision you must retain an attorney who nows how to fight for you and win every dollar available for your case. You do not need an attorney looking to make a quick settlement. If you were involved in an auto accident resulting in a serious or catastrophic injury, contact this office right away for a free consultation.

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August 1, 2012

A Major Victory for Injury Victims Scored in Missouri Should Have Widespread Implications

Missouri was one of many States that impose caps on noneconomic damages (i.e. pain and suffering) in personal injury cases, specifically medical malpractice. In Missouri, an injured person could receive no more than $350,000 above his or her economic losses (medical expenses and lost wages). While that may seem like a great deal of money, it is very little to someone catastrophically injured by another's negligence. For a simple example, consider a medical malpractice case where the doctor amputates the wrong leg (think it can't happen - look here). That person will spend the rest of his or her life in a wheelchair and would legally be unable to recover more than $350,000 in damages!

Yesterday, the Missouri Supreme Court in Watts v. Cox Medical Center, ruled that the cap on damages was an unconstitutional infringement of ones right to a trial by jury. The Federal Constitution (mirrored by the States) guarantees the right of anyone with cause to have a trial decided by a jury of his peers. It should always be the jury who decides the outcome of a case including the damages, and not lawmakers influenced by insurance companies.

It has long been an argument of the plaintiff's bar and American Association for Justice that caps on tort awards were unconstitutional, and this Supreme Court decision affirms our position. Hopefully, this decision will influence other States to make the same decision which they should agree is constitutionally mandated. This decision should also strike a blow for the tort reform movement (although this election campaign has not brought up the topic of tort reform nearly as much as four years ago). Numerous studies, including those conducted by independent groups with no stake in the tort reform debate, have shown that medical caps and restrictions on personal injury claims do not reduce health care costs and lead to lower quality patient care.

I want to personally applaud the attorneys behind this decision for their tireless work and to the Missouri Supreme Court for amending a wrong.