April 22, 2010

Some Answers if you Have Been Hurt in a Car Accident and Do Not Have Health Insurance

This topic is a big one and comes up very often. While our federal government is working out a new health plan for our Country, the fact remains that roughly 46 million people in America do not have any health insurance, including 140,000 people in our small State of Rhode Island. Many people without health insurance have no idea what to do following an auto accident even though they are seriously hurtdiscount-card.gif.

The at-fault driver will be responsible for all of your medical bills. Unfortunately, you will not receive this money until the case is settled or a verdict is reached at trial. That means you could be waiting several months to a few years. There are options, however, and an experienced auto accident attorney can help you through the process.

In Rhode Island, many auto policies contain Medpay.

Medpay acts just like health insurance. If you, or the owner of the vehicle you were in at the time of the accident, has medpay on the auto policy, this coverage will pay all of your medical bills up to either $2500 or $5000 depending on the policy. Many people are unaware that medpay exists, but it is a very affordable coverage that is often grouped with a "full coverage" policy. This money comes directly from your insurance company so you do not have to wait as with a settlement or jury verdict.

Massachusetts drivers have personal injury protection (PIP)

PIP will cover you for up to $8000 in medical bills if you have a Massachusetts auto policy and no health insurance. Like medpay, this money is available to you right away and can help with emergency room bills or necessary diagnostic testing such as MRI's and CT scans.

What if there is no medpay, no PIP, and no health insurance?

Honestly, this could get a little tricky. Understand that you have a right to be seen at an emergency room following an auto accident. If they know that you have no health insurance, the care may not be the best, but they will at least stabilize your injuries. Hospitals and emergency rooms often have to wait for payment and if they know that you are represented by an attorney, they will often wait to receive payment at the time of settlement.

In addition, many doctors, chiropractors, physical therapists, and other specialists, are willing to treat your injuries right away and wait for payment from the accident settlement. The more trusted your attorney, the more likely a doctor or specialist will trust him or her to pay the bills when the claim is resolved.

I have an excellent reputation among doctors and medical providers in this community and can always find a physician willing to treat your injuries while delaying payment. In one case, in which my client suffered traumatic brain injury, I was able to arrange treatment with a neurologist and psychiatrist who both agreed to delay payment until the case settles.

In summary, if you hire an experienced personal injury attorney such as myself, there are always options to ensure that you get the medical care that you need right away. Never feel pressured into settling early and for little money in order to pay your medical bills.

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April 20, 2010

Further Charges Possible For Driver who Fled Scene of Fatal Accident

The news has been covering the story of Kevin Killoran who is now being charged with leaving the scene of an accident, death resulting; driving on a suspended license; and, driving to endanger following the tragic death of his passenger and employee, David Clinton.

The family of the victim is quite rightfully enraged that the victim was left in a car to die while the driver fled the scene and alluded police. Speculation is rife with reasons why Killoran fled the scene, but regardless of his reasoning he may face additional and much more serious charges. If medical examination shows that David Clinton could have survived his injuries if he received prompt medical attention, the State could increase the charges against Killoran (the facts of the case once fully uncovered might also give the State cause to levy additional charges). Charges including, but not limited to involuntary manslaughter could reasonably be brought forth.

Of course, the family of the victim will be able to pursue Killoran in a civil Court as well and proceed against any and all assets including his insurance policies and the Z bar & Grille which Killoran owns. A tragic and sad story that most certainly was avoidable. I wish the family the best.

April 20, 2010

Is Rhode Island Behind the Times in Imposing Social Host Liability

Yesterday I wrote a post about a Virginia Supreme Court decision imposing liability on the hosts of a sleepover following a fatal auto accident. The parents of the victim had requested that their daughter not be allowed to ride in any car with teenage boys, and the Court imposed liability on the hosts for failing to follow through with that instruction and for failing to adequately care for their guest.

I began thinking that the Rhode Island Supreme Court would almost definitely deny such a claim. Rhode Island is among the States which do not recognize social host liability. Ferreira v. Strack, 652 A.2d 965, Willis v. Omar, 954 A.2d 126. Social host liability laws hold hosts and homeowners responsible for injuries sustained by a third party as a result of their actions. For example, if a homeowner throws a party in which a person becomes severely intoxicated and later kills a person in a car accident, the homeowner would be responsible for the role they played. It is dram shop liability on the homeowner.

Rhode Island, however, fails to recognize this liability because the Supreme Court does not believe that the host owes a duty to an unrelated third party. Rhode Island will only impose social host liability if the homeowner allows underage drinkers to become intoxicated or provides alcohol to minors which later results in a tragic accident. This law is relatively recent and is a product of the legislature. The Supreme Court has often stated that it defers to the legislature in establishing new causes of action. Therefore, social host liability will never be imposed in RI unless the legislature drafts such a statute.

I realize the Virginia case does not compare factually to the long line of RI cases denying social host liability, but I can only project that the RI Supreme Court, faced with a similar case, would reject this theory of liability.

April 19, 2010

Virginia Supreme Court Sets an Interesting Precedent

Today I came across an interesting case out of Virginia. A judge has approved a $1.75 million dollar settlement in a case arising out of the death of a teenage girl who was sleeping over a friends house. The parents of the victim told the parents hosting the sleepover that they did not want their daughter to drive in any cars with boys. Unfortunately, the host mother gave permission for the girls to go for a car ride with a teenage boy that ended in the tragic death of the victim. The lawsuit sought money from the homeowner's policy of the hosts alleging that they were negligent in caring for the girl.

In approving the settlement, the Supreme Court of Virginia stated that a parent who agrees to supervise and care for a child has a common law duty to do so with reasonable care. One could make an argument that it was not unreasonable to allow the girls to get in a car with a properly licensed driver - but considering that teenagers often drive recklessly, particularly when in a group setting, an accident is arguably foreseeable. Furthermore, the parents of the victim specifically requested that the daughter not be allowed to get into such a situation.

I am unsure if any other State has similar case law (searching the case law of all 50 States isn't all that appealing) but I thought this was a novel and interesting ruling.

April 15, 2010

Jury Finds Providence Police Officer Guilty of First Degree Sexual Assault

The Providence Journal is reporting that the jury charged with deciding the fate of patrolman, Marcus Huffman, has today returned a guilty verdict in a case many of us have been following in the news. Officer Huffman was standing trial for the alleged rape of a 19 year old woman, that was committed on May 17, 2007 while he was on-duty.

The victim reported that she was offered a ride home from Huffman after she was turned away from a night club for being too intoxicated. Huffman took the victim to an empty police substation where she was raped in the bathroom. The victim, in and out of consciousness, awoke to find her clothes undone. She managed to walk to a nearby Aunt's house.

She admitted that she was so drunk that she did not remember details of the event. This, of course, made the job much more difficult for the prosecution. She was adamant, however, that she never gave Officer Huffman any indication that she was interested in him sexually. In fact, the victim identifies herself as a lesbian.

Huffman's attorney attempted to poke holes in the victim's story and highlight her inconsistencies. The jury, however, found the victim credible and today returned a guilty verdict. The defendant plans to appeal.

April 13, 2010

Uninsured Motorist Will Cover Your Damages if Injured in a Hit and Run

Many people injured in car accident, whether in another vehicle, a pedestrian, or on a bicycle, may not be aware that uninsured motorist will cover their damages if the at-fault driver flees the scene. While uninsured motorist obviously covers you if the other driver fails to maintain mandatory liability insurance, or if they fail to carry enough insurance to pay all of your damages, it will also cover you in a hit and run auto accident.

Regardless of whether the at fault driver who flees the scene is ever caught by police, your coverage under uninsured motorist will cover all of the typical damages that you can recover in an auto accident claim including: medical bills, lost wages, and pain and suffering.

It seems that Rhode Island has had a flurry of hit and run accidents in recent weeks including the terrible story of Earlene Sally and Nikia Phillips, the mother and daughter who were seriously and permanently injured by a driver who fled the scene. The driver accused of hitting the two women with his car and fleeing the scene has been charged with two counts of driving under the influence - serious injury resulting, and other counts.

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April 12, 2010

Fatal Bike Accident Underscores Need for Increased Safety

The Boston Globe is reporting today that bicycle safety groups are calling out for increased safety following the tragic death of Eric Hunt last week. Bicyclists are incredibly vulnerable on city streets and cycling advocates are calling for increased awareness and safety measures.

Tragic accidents involving bike riders happen with unfortunate frequency in Boston and Providence. The reality is that motorists are not well trained to keep a look out for bicyclists or pedestrians on the road no matter how many may be walking around the area. This accident, in particular, demonstrates a common and dangerous scenario. It appears that Mr. Hunt was attempting to pass an MBTA bus that was pulled over collecting and dropping off passengers. The bus merged back into traffic and struck Mr. Hunt causing his fatal crash. The bus driver never saw the bicyclist at the rear of his bus.

Drivers are aware of blind spots and potential hazards on the road, but are not as aware of bikers, runners, and pedestrians. Particularly in heavily congested cities, we need to share the road and be aware of one another to prevent any further fatal accidents. As a biker myself, I am increasingly aware of the danger. My condolences to the family.

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April 8, 2010

Settling Auto Accident Claims with Geico Insurance

In recent years, Geico Insurance has become one of the leading insurer's throughout the Country, including a strong foothold in Rhode Island. Their popularity has skyrocketed thanks to effective ad campaigns featuring the lovable English accented gecko and the highly civilized cavemen. Unfortunately, Geico is anything but lovable, friendly, or civilized when it comes to settling personal injury claims.

Geico Insurance has taken, a la Allstate, to making insultingly low offers without justification. Regardless of the injury sustained or the amount of damage to an automobile, Geico responds with a very low offer. I have often asked the adjuster how they arrive at such a low amount, only to hear that a computer gave them their negotiation range.

So why am I telling this to Rhode Island and Massachusetts accident victims? It is important to understand that if you are injured in an auto accident that was not your fault and the other driver is insured with Geico, you may need to file a lawsuit in order to receive fair compensation. For this reason, it is all the more important that you hire the right attorney when involved in an auto accident with a Geico insured driver.

Be sure that you speak with your attorney to discuss what amount you are looking for in settlement. If that amount is unobtainable in settlement be sure that your attorney is prepared to go to trial, if necessary. Geico Insurance is counting on the fact that most auto accident victims are unwilling to wait for a fair settlement and that most attorneys are unwilling to file suit following a car accident, motorcycle accident, or ATV accident (Geico insures all three). Therefore, most of their unreasonable offers are accepted. My office now has the majority of it's Geico cases headed to litigation.

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April 7, 2010

What to Expect in a Lawsuit Following a Personal Injury Claim

Recently I was speaking with a client who was involved in a serious car accident. Negotiations have been ongoing with the insurance company for over a month already, but I felt that their offers to settle the case were too low. I presented the offer to my client and reminded him that it is his choice whether to accept the offer, and that if he feels it is too low we can proceed to a lawsuit.

My client then asked me - how is a lawsuit going to affect me and my case? I realized that this might be a question that a lot of personal injury victims share and will be a good topic for a blog post.

In a previous post "Some Thoughts on Settlement", I offered some advice regarding the decision to accept or decline an auto accident or other personal injury settlement. Here is some additional information to consider if you choose to decline the offer.

A lawsuit is filed directly against the person, persons, or corporations that caused your injury from an auto accident, slip and fall, motorcycle accident, wrongful death, etc. His or her insurance company is not named in the lawsuit, but they will likely supply the defense attorney.

Your personal injury attorney will handle all of the additional work required with a lawsuit. Personally, the impact on you as plaintiff should be very little. You will be required to assist in discovery (answering questions and producing documentation that the defense requests) and you will likely have a deposition (a lengthy interview concerning the facts of the accident and the injuries sustained).

Beyond these obligations there should be little other impact on you personally. Of course, a lawsuit will greatly delay the amount of time before you recover the money to which you are entitled. The amount, however, is likely to be greater.

Filing a lawsuit does not always end in an actual trial. In fact, more often than not, a lawsuit will never make it to trial. Often, personal injury cases can be resolved by settlement, mediation or arbitration after a lawsuit was filed. Mediation and arbitration are similar dispute resolution processes. An impartial third party (not a judge) hears both sides and makes determinations as to a fair and equitable settlement.

If you have a strong case, then filing a lawsuit can really give you leverage in negotiations. The insurance company knows that they will have to pay a defense attorney to defend the case and that you are willing to wait for your day in Court rather than accept what little money they are offering you at the time. Of course, you need to speak with your attorney about your individual case and filing a lawsuit is not always the right thing to do.

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April 5, 2010

Massachusetts Might Set Precedent in Criminalizing Bullying

Rhode Islanders and our local news stations have been focused, appropriately, on the flooding that has ravaged our State in the past weeks. Another interesting story, which many of you may have missed, is developing in Massachusetts.

The Massachusetts District Attorney is charging 9 teenagers
with various charges relating to the bullying and subsequent suicide of 15 year old Phoebe Prince. The South Hadley teenager was apparently the subject of months of continuous bullying before committing suicide in January. Her mother twice notified the school of the seriousness of the problem and the impact that it was having on her daughter. Unfortunately, nothing was done and Phoebe Prince ended her life.

Phoebe Prince came to Boston from Ireland. Her tormentors apparently sought her out after Prince, a freshman, had a brief fling with a Senior football player. It appears some of the girls in the high school wanted to show Phoebe "her place" and that she didn't belong.

Bullying is an epidemic in our schools today that often continues after class is dismissed in online forums and social network groups. At its worst, it can result in the tragic death of a teenage girl who found suicide the only way to relieve her torment.

Ms. Prince's death might set a precedent that has implications in Massachusetts and beyond. Bullying as we generally understand it, is not a crime. In fact, many might suggest it is a high school right of passage. From my recollection, bullying is a means by which insecure high school students pass their insecurities onto even more insecure high school students. Ms. Prince, however, was subject to far worse than the occasional taunt. She endured constant and repeated abuse, physical threats, attacks and worse. One of the teens arrested went so far as to write "accomplished" on Phoebe's facebook wall when notified of her suicide.

The Massachusetts district attorney believes that the tormentors crossed a line and the AG office is using the law in a highly creative way to find charges to press against all of the girls tormentors. The nature of the charges range from criminal harassment and civil right violations to stalking and statutory rape. One girl, who previously knocked a red bull can out of Phoebe's hand, is being charged with assault with a deadly weapon.

This type of creative prosecution is what is occurring with most of these charges. Defense lawyers will be hollering from the rooftops that the charges are unreasonable and the DA will likely be applauded for bringing someone to justice for the death of Phoebe Prince.

Criminalizing bullying may set a very important precedent not only in Massachusetts but in every State in the Country. It will be fascinating to see how this case pans out.

Beyond the legal issues that I have chosen to discuss in this post, I give my heartfelt condolences to all of Ms. Prince's family and friends.

March 31, 2010

Rhode Island Truck Driver Fines for Axle and Weight Restrictions

If you are a commercial truck driver, or the owner of a commercial trucking company levied with a $3000 fine for axle and weight restrictions on the Pawtucket River Bridge, you need to hire a Rhode Island Traffic Tribunal Attorney who has experience fighting these axle restriction tickets. My office has helped resolve dozens and dozens of Pawtucket River Bridge tickets at the Rhode Island Traffic Tribunal.

There may be no more common sight for Rhode Island drivers than that of a commercial truck pulled over on Route 95 in Pawtucket for a weight and/or axle violation. It was back in 2007 with the approval of Rhode Island General Law - 31-25-30 - that weight and axle restrictions were placed on commercial trucks driving over the Pawtucket River Bridge and since that time the State of Rhode Island has levied millions... that's right... millions of dollars in fines against truckers and trucking companies. You and your company can fight back! Do not pay this ticket right away - contact your Rhode Island axle restriction attorney today for advice.

In 2007 the State imposed a 22-ton weight limit on the Pawtucket River Bridge due to excessive wear and disrepair. This effectively prohibited large commercial trucks from traversing this section of Route 95. Rhode Island General Law 31-25-30 is responsible for creating an axle restriction over the Pawtucket bridge. A first offense is charged at $3000.00 and each subsequent offense will amount to a $5000.00 fine.

Most commercial trucks are required to detour onto Route 295 or Route 146 through the northern part of Rhode Island. Nevertheless, thousands of trucks are stopped each year and penalized with stiff fines. The fines which are often thousands of dollars have made millions of dollars for the State which might add some insight as to why this "temporary" problem has not yet been corrected.

Commercial truckers driving through Rhode Island should look to avoid Pawtucket at all costs, but if you find yourself stuck with one of these heavy fines, you can call my office right away for help. Furthermore, if the ticket is issued to an out of state trucking company, my office is able to appear on your behalf at the Rhode Island Traffic Tribunal to avoid the need of coming to Rhode Island for a hearing.

If you are a commercial trucker facing large fines, whether received on the Pawtucket River Bridge, or not, contact my office right away for help in resolving your fines. In most cases we can have the matter dismissed or have the fine heavily reduced.

March 29, 2010

Attorney Joseph Lamy Opens New Satellite Office in Boston

Many of you are aware that I began practicing in Boston before returning to Rhode Island to start my own practice. I continue to handle Massachusetts personal injury and entertainment law cases and have a steady number of clients in Boston and throughout the Commonwealth.

Clients in the past have expressed concern that my office is "all the way" in Providence, so I am very happy to announce that I now have a new satellite office in Boston for purposes of meetings, consultations, etc. The new satellite office is located on Federal Street in downtown Boston. This will be a much more convenient meeting place for many of my Massachusetts clients.

Nevertheless, all phone calls, mail and correspondence should continue to be directed to my Providence office.

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March 28, 2010

BMI, ASCAP and now Soundexchange

I came across an important article in the Tennessean which pointed out the importance of registering with an organization that collects royalties for digital music, such as SoundExchange.com. With the emerging popularity of online radio and programs such as Pandora, it is absolutely imperative to have proper registration with a company entrusted to collect online royalties.

The difference between online play and traditional radio play, is that terrestrial radio is not required to pay royalties to musicians and artists who appear on a particular recording. Groups like BMI and ASCAP only collect and disperse royalties to copyright holders and publishers.

Recording artists sensing the dawn of a new musical venue were quick to ensure that they would be paid for online and digital play of their recordings. So while the bass player from a 1960's protest song may not have received royalties in twenty years, he may now find that the same song is now worth several thousand dollars in online royalties.

Many recording artists, however, have failed to register with SoundExchange.com and are potentially losing thousands of dollars. This particular article suggests that there is over $50 million dollars in unpaid royalties. Despite the best efforts of researchers and investigators it is often impossible to recover all the musicians who played a part on a particular track meaning their rightful royalty goes uncollected.

The Copyright Royalty Board has made SoundExchange the sole entity in the United States to collect and distribute digital performance royalties on behalf of featured recording artists, master rights owners (like record labels), and independent artists who record and own their masters.

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March 21, 2010

NY Public Defender Tells Defendant to Plead Guilty to a Felony for a Crime that Wasn't a Felony

The New York Times has a fascinating story that raises some serious questions about the criminal system in this Country and the overall lack of justice that it produces.

Let me begin by saying, as I have in previous blog posts, that I have nothing but respect for the public defender's office. They are some of the most talented criminal defense lawyers in the state. The problem, of course, is that they are severely overly worked and underfunded. The result is that a public defender simply can not afford the time and resources that may be required for any individual case. The anger should not be directed at the public defender's office, but at a State that gives prosecutors a budget ten to twenty times that of the public defender's office. It makes you wonder what our goal really is regarding prosecution.

That said... back to the story. Kimberly Hurell-Harring was never in trouble. She had a tough life of poverty and single motherhood at a young age. Nevertheless, she worked hard, often two jobs at a time to support her children. Her husband, was an inmate in the New York prison system serving eight years. In 2007, at her husband's urging, Kimberly attempted to sneak some marijuana to her husband during a meeting at the jail. It was only 3/4 of an ounce. She was caught, arrested, and charged with smuggling dangerous contraband into a jail. The judge set bail at 10,000 guaranteeing that a woman of her means would go to jail.

Kimberly sat in jail aware that her crime should never have been considered a felony. Other inmates at the jail warned her about public defenders. One told her that you get what you pay for = nothing!

Kimberly was a nervous wreck awaiting sentencing. She tried to call her lawyer often but was always told that he was unavailable. The New York State Defender's Association was working on similar cases before the New York Supreme Court arguing that marijuana is not dangerous contraband and should be charged as a misdemeanor, not a felony. The Association called Kimberly's public defender to tell them that the Supreme Court was going to hear the case. He was not impressed. Soon thereafter, despite the call from the association, the public defender encouraged Kimberly to plead guilty to the felony charges. She was sent to jail.

In the aftermath, Kimberly lost her job and was separated from her children for several months. She and her children had to move to run down housing and survive on food stamps.

Working pro-bono a team of private lawyers went to work on an appeal and aggressively attacked the weaknesses of the case. The end result, the New York Court of Appeals agreed that Kimberly should never have been charged with a felony.

This case, like many others, also raises serious questions about prosecutorial ethics. What is the goal of our criminal system? Is the intent to put as many people in jail for as long as possible? Or is the intent to seek justice and hand out punishment that fits the crime. Too often the answer lies in the former. Why would the prosecutor consistently jump to the highest possible charge for these offenses rather than treat them reasonably as a misdemeanor? Why would they not reduce the charges knowing that the Supreme Court was about to consider the issue?

What are the lessons to be learned from a story like this.... Criminal defendants should know that the AG's office is not on their side. A person arrested for a felony or misdemeanor should also know that only a private attorney can invest the time and resources that are necessary to obtain the best result for your case. Do not let yourself become a victim of a system that does not care about you and which was not designed to protect the innocent.

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March 17, 2010

Motorcycle Accidents and Injury Compensation

We are a few short weeks from motorcycle season in Rhode Island and Massachusetts and it is impossible to avoid discussing the dangers of motorcycle riding. Motorcycle accidents are on the rise and because bikers are unprotected, the injuries sustained in a motorcycle accident are often incredibly serious. Motorcycle accidents can result in traumatic brain injuries, scarring, fractures, other permanent disabilities, and even death.

Motorcyclists are universally considered the highest risk motoring group accounting for 14% of all fatal traffic accidents. The Department of Transportation reported 96,000 injuries and over 5,000 crash deaths involving motorcycles. Of these reported injuries and deaths, the highest percentage occurred in head on collisions between motorcyles and vehicles.

Because of the severity of motorcycle accidents, it is imperative that you hire an attorney to represent your case. For one, liability determinations are often more complicated when a motorcycle is involved. An experienced motorcycle lawyer knows how to gather the necessary evidence and present it to the insurance company to prove liability against the other driver. Second, an experienced motorcycle attorney is necessary to help negotiate a fair settlement for your serious and potentially permanent injuries. The more serious the injury, the more difficult it often becomes to reach a fair settlement with the insurance company. You need an attorney who understands the full value of your case and is willing to go all the way to trial if necessary to obtain all of the money that you deserve.

While motorcycle accidents may be inevitable, it is imperative that riders do everything they can do to prevent serious injury. Wear helmets, obey the rules of the road, and keep an eye out for drivers. Motorcycle riders have to drive defensively because drivers of automobiles are not accustomed to keeping an eye out for motorcycle riders.

If and when an accident occurs, it is imperative that you not delay in contacting an experienced motorcycle lawyer.

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