December 14, 2009

Massachusetts is a "No Fault" State - What Does That Mean?

Rhode Island residents injured in an auto accident in Massachusetts may have been told that Massachusetts is a no-fault State. The next reaction is to ask - What does that mean? This is a question I am asked quite frequently since our lovely State is so small it is not uncommon for Rhode Island drivers to find themselves in a car crash in Massachusetts.

No-fault liability is a program in which injured people collect money (for medical bills and lost wages) directly from their own insurance company regardless of who was at fault. This program is what is commonly referred to as PIP, or personal injury protection. It does not mean that the person who rear-ended you is not at fault for the accident. It is simply a program intended to reduce the number of lawsuits by allowing people to collect money from their own insurance company.

The benefit of a no-fault system is that it allows an at-fault driver to be compensated for his or her injuries. The drawback is that it limits the ability of an injured person, not at fault for the accident, to sue for damages. It should also be noted that PIP does not pay damages for pain and suffering.

An injured person, not at fault for the accident, can still bring a claim against the at-fault driver so long as the injury meets certain thresholds. In other words, if the injury is serious enough (i.e. scarring, fractures, etc) or the medical bills are greater than $2000.00, the injured party meets the injury threshold and can bring a claim against the at-fault driver.

In a nutshell - if you are seriously injured in an auto accident in Massachusetts, the no-fault laws will not seriously affect your claim. If, however, the injury is minor and the treatment minimal, you may be compensated solely by PIP.

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December 12, 2009

The Weakening of Miranda

In my earlier post, discussing the current challenge to Miranda, I mentioned that the original intent and strength of Miranda v. Arizona has since been deteriorated by subsequent Supreme Court decisions. This post gives a chronology of what I believe to be the weakening of Miranda protections through the years.

An early blow to Miranda occurred in Harris v. New York, in which a 5-4 Court ruled that statements secured in violation of Miranda could still be used to impeach a defendant if he or she took the stand in their defense.

The value of Miranda was truly reduced when the Court began to interpret the terms "custody" and "interrogation." Since Miranda protections only apply if the suspect was interrogated in police custody, opponents of the law sought to re-define both interrogation and custody. In Oregon v. Mathiason, a suspect not read his Miranda rights confessed to a burglary after the police asked him to come to the station for questioning. The Court upheld the conviction on the grounds that the suspect was asked to come to the station and was not formally arrested before questioning and, therefore, should have felt free to leave at any time.

Similarly, the USSC took a narrow view of interrogation in a case that arose from our own state of Rhode Island. In Rhode Island v. Innis, the suspect was in the car with police and had asserted his Miranda rights. The suspect overheard the police talking about the missing gun and expressing fear that some children might find the gun and injure themselves. The suspect then told the police where to find the gun, thereby incriminating himself. The Court held that this was neither a ploy to coerce a confession, nor qualified as an "interrogation," and as a result the statement was admissible. Still later, the Court ruled in New York v. Quarles, that Miranda would not apply in instances where the public safety was at risk.

I began discussing Miranda because the USSC is preparing to decide the Powell case in Florida which concerns the proper wording and understanding of Miranda. This is not the first time such a case was heard. In 1989, Duckworth v. Eagan was decided. In this case, the police simply told the suspect that a lawyer would be appointed "if and when you go to court." The suspect's conviction was upheld when the Court held that it was not necessary for Miranda warnings to be read exactly as written in the Miranda decision, thereby opening the door for countless interpretation battles.

While the constitutional protections of Miranda remain, it is clearly not the protective force it was in 1966. Through numerous exceptions and limitations, as outlined above, the USSC has limited the force and scope of the 1966 ruling. It will be interesting to see how this most recent case will affect the future of Miranda warnings.

December 10, 2009

Debt Collector Sued for Man's Death

I came across this story on CNN.com and found it fascinating. A widow is suing a debt collector for the wrongful death of her husband. The lawsuit alleges that the frequent harassing and threatening phone calls caused so much stress to her husband that it eventually led to his fatal heart attack.

I was unable to embed the video in this post, but it is truly worth watching. The widow saved several of the messages from the debt collector and the tactics used are disgusting and illegal. I hope that States follow through and prosecute debt collectors who use these "thuggish" methods of collection.

That said, I suspect this will be a nearly impossible case to win. The story reports that the deceased was already collecting disability for a prior heart attack. Therefore, it will be very difficult to causally relate a second fatal heart attack to the harassing phone calls. Defense will likely be successful in arguing that the second heart attack was inevitable.

Nevertheless, I give the widow credit and wish her the best of luck in her wrongful death lawsuit. It is embarrassing to think that a sick and dying man was treated with so much disrespect in the final months of his life.

December 9, 2009

Winter Weather is Here! Drive Accordingly

We all woke up this morning to the first major snowstorm in our part of the world. Besides breaking out the shovels and ice melt, snow on the roads also means that we are adding 20-30 minutes to our commute. The added time, however, is well worth your safety - drive carefully.

The Federal Highway Administration reports that:

Everyone in Rhode Island is a self-professed master of driving in the snow, but these national numbers seem to contradict our ability to drive in winter weather. Take it easy out there.

Continue reading "Winter Weather is Here! Drive Accordingly" »

December 8, 2009

The United States Supreme Court is Set to Take on Miranda Again

The Landmark 1966 decision, Miranda v. Arizona, ensured that suspects were aware of their now famously worded constitutional rights. Cops could no longer use coercive tactics or rely on the ignorance of a suspect in attempting to secure a confession. In the last several decades, however, the Miranda ruling has been chipped away so that it carries little of the weight it once carried.

mrianda.jpgMonday, the United States Supreme Court heard another case regarding Miranda which stems from Florida. The case involves Kevin Dwayne Powell who was convicted of possession of an illegal firearm. Before his confession, Powell signed a Miranda statement that included the statements "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

At question is whether it was made clear to Powell that he had the right to an attorney during the interview. The statement above says that Powell had the right to an attorney before answering our questions which suggests that Powell had no choice but to talk to police.

The Florida Supreme Court overturned the decision on the basis that Powell's rights were not made clear. Yesterday, the appeal was heard before the USSC. Justice Breyer appeared to side with the Florida Supreme Court in asking, "Where does it say in this warning, you have the right to have the lawyer with you during the interrogation?" Justice Breyer also pointed out that this was not a minor topic in Miranda but rather was discussed over eight paragraphs.

To the shock of no one, Justice Scalia disagreed. In his continued effort to abolish the criminal justice system, Justice Scalia stated that it was fantastical to believe that Powell would not have confessed if only he knew that he had the right to an attorney during questioning.

I'm consistently shocked by how often Miranda challenges come up. Miranda laws have been around longer than most of today's cops have been on the beat, so it startles me that cops fail to properly give the warnings.

I mentioned above that the past several decades have chipped away at the efficacy of Miranda... please come back to see Part II of this post as I discuss my thoughts on the state of Miranda v. Arizona.

December 7, 2009

Samsung and Nextel Sued Following a Fatal Car Accident

It's been a tough week for cell phone manufacturers and service providers. Recently, Rhode Island officially banned texting while driving, and today brings news of a product liability suit against cell phone manufacturer, Samsung, and service provider, Nextel.

In September of 2008, Linda Doyle, was fatally killed in an automobile accident in Oklahoma City. Ms. Doyle was killed by a woman who ran a red light at 45 mph while talking on her cell phone. The family of Ms. Doyle has brought a product liability suit against Samsung and Nextel alleging that they marketed cell phones to drivers of automobiles while failing to adequately warn of the dangers of driving while on a cell phone.

Generally, a product liability case can be brought using one of three theories of negligence:

  • The product design was defective;
  • The product manufacturing was defective; or
  • The product lacked adequate warning or instruction.

This lawsuit clearly falls into the latter category. Similar cases have been brought in the past and failed when the defense successfully argued that people are aware of the danger of using cell phones while driving. I feel terrible for the family but believe they have an uphill battle in this case. If cases such as this are successful, it could open the door to quite a number of liability cases against cell phone manufacturers and service providers.

Continue reading "Samsung and Nextel Sued Following a Fatal Car Accident" »

December 4, 2009

Warwick to Charge Federal Prosecutor With DUI

Early Thanksgiving morning, Assistant U.S. Attorney, Gerard Sullivan, was stopped by Warwick police for driving erratically. Allegedly, Mr. Sullivan told the police that he was a federal prosecutor and acquaintance of the police chief. Instead of being charged with DUI, Mr. Sullivan was charged only with refusal to take a breathalyzer, a lesser civil charge.

Typically, an officer will charge a suspected drunk driver with DUI based on the surrounding circumstances (i.e. erratic driving, slurred speech, smell of alcohol and/or weed), even absent a positive breathalyzer test. The public was outraged over the lack of the more serious charge suggesting this was another case of favortism and cronyism. In fact, of 8 people stopped in Warwick over the Holiday weekend who refused a breathalyzer, Mr. Sullivan was the only person NOT charged with DUI.

Today, the Providence Journal is reporting, that Warwick will charge Mr. Sullivan with both refusal to take a breathalyzer and DUI. Warwick Police Chief Stephen McCartney stated "The legal review showed that the arresting officer's observations of impaired driving in this particular case were more than sufficient probable cause to bring forward the aforementioned additional DUI charge." Whether this was police procedure or a knee-jerk reaction to public outrage is for the public to decide.

It is also worth noting that when a lawyer is pulled over for suspicion of DUI - he (or she) refuses the breathalyzer test. This is a lesson to anyone who might find him or herself in this unfortunate circumstance.

Continue reading "Warwick to Charge Federal Prosecutor With DUI" »

December 2, 2009

Family of Actor James Woods Settles Medical Malpractice Suit vs. Kent County Hospital

Despite several weeks of litigation, the jury will not make a determination in the case of Michael Woods vs. Kent County Hospital. Prior to closing arguments, the two sides have agreed to settle the matter.

Actor James Woods and his family brought the lawsuit against Kent County Hospital alleging that their emergency room staff was medically negligent and ultimately caused the death of Michael Woods in 2006.

The full details of the settlement were not released to the public, however, the Providence Journal reports that the settlement will include the creation of the Michael J. Woods institute at Kent Hospital. Per the settlement agreement, the hospital has promised to invest 1.25 million dollars over the next five years in the institute with the intent of improving hospital care and procedure, particularly in the emergency room. In addition, the settlement provides financial support to Michael Woods surviving children, which according to James Woods, will leave them financially secure.

Following the settlement, a spokesperson for Kent admitted that mistakes were made. Michael Woods entered the emergency room shortly after 4pm with acute onset vomiting. An EKG showed an abnormal heartbeat and he was ordered to be placed on a heart monitor by the treating physician. The nursing staff, however, never followed through with this instruction. Instead of being placed in a room, Michael Woods remained on a gurney parked in the hallway. James Woods stated that no one in his family knew where his brother was for over an hour and a half. At 7:10pm, Michael Woods suffered a heart attack and was pronounced dead shortly thereafter.

November 29, 2009

Rhode Island Officially Bans Texting While Driving

By now we have all seen the electronic traffic message signs telling us that there is a new law in Rhode Island banning texting while driving. It is true that Rhode Island has joined the growing number of States to make illegal this dangerous activity.

One might ask, how dangerous is texting while driving? It turns out, according to a Car & Driver report, that it may be more dangerous than drunk driving.

In a safe test environment they tested the reaction and stopping times of individuals who were texting, emailing, or legally drunk (over .08). The results were startling.

  • an unimpaired driver: .54 seconds to brake
  • legally drunk : an additional 4 feet
  • reading email: an additional 36 feet
  • sending a text: an additional 70 feet

So the results suggest that a person distracted by their cell phone is even more dangerous than a mildly drunk driver.

November 27, 2009

New Rhode Island Law Compels Blood Alcohol Testing

The State legislature has passed a new law that allows officers to force drivers suspected of being under the influence AND are involved in accidents that cause death or serious bodily injury, to submit to a blood alcohol test.

Rhode Island law holds that any driver on a public road gives consent to a breathalyzer test if suspected of DUI. Drivers, however, can refuse to take the test. Refusal to take the breathalyzer will result in a separate charge from the DUI and will result in a loss of license, but may help avoid a DUI conviction.

This new State law denies the driver's right to refusal when the suspected DUI has led to an accident involving serious bodily injury or death. The law will really aid the prosecution for the heightened charges of R.I.G.L. 31-27-2.2 "driving under the influence of liquor or drugs, resulting in death."

I will be curious to see where the fine line is drawn in regards to "serious bodily injury." What will it take for an injury to be deemed serious enough to give the officer power to force the suspected drunk driver to submit to the chemical test. I am willing to bet that this will be the subject of much litigation in the coming years.

Rhode Island legislators are happy to have this law passed in time for the Thanksgiving weekend when a higher percentage of drunk drivers are on the road. Everyone be careful out there this weekend.

Continue reading "New Rhode Island Law Compels Blood Alcohol Testing" »

November 25, 2009

Settlement Details in Station Fire Released

As a long dark period of Rhode Island history comes to an end, additional settlement details concerning the Station Fire which killed 100 people and injured over 200 on February 20, 2003, have been released.

Plaintiff lawyers worked diligently and brought in dozens of defendants to try and ensure the best possible compensation for victims of this disaster. In total, approximately $175 million dollars will go into the pot. Children under 18 who lost a parent in the fire will receive an average award of over $200k. The settlement amounts for minors who lost a parent will range from $171,685.44 to $241,631.36. The youngest children will receive the highest awards because they have spent the largest part of their lives without their mother or father.

Of course, the awards to the actual victims, as opposed to dependents, will be resolved on an individual basis and dependent on the severity of injury.

I wish the best to all of the victims and family of victims affected by this awful disaster.

November 17, 2009

DJ AM to Test Limits of Proximate Cause

I found an interesting story on the website TMZ which I am embarrassed to comment on or admit that I read. Nonetheless, it turns out that the family of DJ AM (aka Adam Goldstein) has filed a wrongful death suit against several defendants involved in his airplane crash in 2008. You may remember that DJ AM died in August of this year from a drug overdose. The family alleges in the lawsuit that DJ AM became addicted to painkillers following the serious injuries sustained in the airplane crash and ultimately died from this addiction.

Proximate cause is an essential topic in personal injury litigation. It asks if an event is sufficiently related to an injury to be determined as the cause of that injury. For example, we can easily link a broken wrist to a slip and fall. In more complicated scenarios, the classic test is often referred to as "but for". In this scenario, DJ AM would not have died of an accidental drug overdose but for the negligence of the airline that caused his prior injuries.

I think that it is a stretch to link an accidental overdose of prescription drugs to an accident that occurred almost a year earlier, and the attorneys will have a tough case to present, but kudos to them for thinking outside of the box.

November 2, 2009

Vegas - Prostitution is All Yours!

Tuesday it will be official... indoor prostitution, for many years legal in the State of Rhode Island, is officially illegal.  The House overwhelmingly approved a bill to close the loophole in RI law that inadvertently allowed prostitution.  The previous law only made solicitation illegal, so that a prostitute could be arrested for "walking the streets."  The law, however, did not explicitly ban exchanging sex for money, so the Providence Phoenix and Craigslist, have been a haven for consenting adults to legally get together.  Not to mention the dozens of strip clubs and Asian massage parlors throughout the State.

Governor Carcieri is set to sign the law into effect on Tuesday.  A fight was made to prevent the passing of the law.  Opponents of the new law pointed out that making the activity illegal will not rid the State of prostitution but will force women to hide their activity where they are more likely to be harmed by dangerous "johns" or pimps.  In the end, I guess the legislature did not want to be known as the only prostitute friendly State outside of Nevada.

One could argue that the impetus to close this loophole began with the documentary film "Happy Endings" which illustrated the plight of woman trafficked from Asia for sex and living in squalor at one of Rhode Island's many infamous massage parlors.  The film thrust Rhode Island into the spotlight, particularly among those unfamiliar with the State's prostitution laws.

The legislation will make prostitution that occurs in brothels, strip clubs, homes or other indoor venues a criminal misdemeanor punishable for first offenders by up to six months in prison and fines of up to $1,000, or both.  Prostitutes convicted of multiple offenses would face up to a year in prison and fines of up $1,000, or both
October 24, 2009

Understanding Wrongful Death in Rhode Island

The Rhode Island wrongful death statute, R.I.G.L. section 10-7-1, like that of all other states, allows a suit to be brought against a liable party who caused the death of another.  The reason such statutes are necessary is that according to old common law, a suit died with the person who had the right to bring the suit.  In other words, if the plaintiff was killed in the accident, there was no person to available to bring the lawsuit, and hence no lawsuit.

Today, when someone dies due to the fault of another person or entity (such as a car manufacturer), the survivors may be able to bring a wrongful death lawsuit.  This lawsuit seeks compensation for the loss suffered, including but not limited to, loss of wages and earning potential, companionship, and funeral expenses.

Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted) or for acting intentionally.

Immediate family members, such as spouses and children, are entitled to bring a wrongful death lawsuit in Rhode Island.

 It is also VERY important to know that the House of Representatives in Rhode Island voted to approve a bill which amends the wrongful death statute to allow parents to make a claim for loss of parental society and companionship even if the child is over the age of 18 and no longer a minor.  (please see my previous post regarding this change.)

 The truth is no lawsuit will ever compensate for the loss of a family member and loved one.  It is, however, important to understand your rights and contact an attorney who can help the family get their feet back on the ground.

 Contact my office for a free consultation.
October 19, 2009

Congratulations to New Rhode Island Attorneys!

The Supreme Court is now listing the results of the July 2009 Bar Exam.  I would like to congratulate all the new attorneys who passed the bar.  Be proud, our State exam is not an easy one.