Rhode Island Injury Lawyer Blog

On July 22, Cargill voluntarily recalled 30,000 pounds of ground beef products. Now the CDC is reporting that at least 33 people have been sickened with salmonella linked to the Cargill ground beef. At least one of these persons is reported to be here in Rhode Island and several more in Massachusetts. It appears that these products were sold in Hannaford supermarkets throughout New England. It is highly likely that additional cases will be reported increasing this number well above 33 cases of food poisoning. The product has been recalled and the sell by date has passed so there should be no danger of buying the affected product any longer. Consumers, however, are instructed to look at products they placed in the freezer. If the establishment number Est. 9400 is in the USDA mark of inspection, you may want to dispose of the meat for possible contamination.

These victims of food poisoning range in age, remarkably, from 6 to 101! Food poisoning is particular hard on children and the elderly who have weaker immune systems. Of the 33 victims already reported, 11 have required some period of hospitalization. Thankfully no deaths have linked to this recent salmonella outbreak.

Food poisoning cases are largely product liability cases and require thorough and aggressive investigation. It is imperative that you speak with an experienced food poisoning attorney right away if you or a family member has been diagnosed with salmonella or other food borne illness. Attorney Joseph Lamy has recently handled many cases of food poisoning from high profile Rhode Island cases including the DeFusco’s Bakery outbreak and a half dozen victims of the Uncle Sushi outbreak.

MSN.com has reported, using statistics gathered from the NHTSA, that traffic related accident deaths have surged during the first quarter of 2012. They estimate that 7,360 motor vehicle fatalities occurred between January and March of this year compared to 6,720 deaths during the same period last year. The huge increase marks the second largest quarterly jump in over 30 years!!

Vehicles continue to make improvements in safety, including advanced and multiple airbags, so experts are hard to explain what is causing the increase in auto accident related deaths. The number one suspect is increased cell phone use. Text messaging and driver distraction has been an ever increasing problem across the country leading a number of States to ban texting while driving. Of course, texting is not limited to actual texting but includes Facebook checking, tweeting, reading emails, and everything else that smartphones can do. Recent studies have shown that distraction from cell phone use is even more dangerous than drunk driving.

The good news, if any exists, is that motor vehicle related deaths are down annually from a peak in 2005. The two most common mistakes that lead to motor vehicle fatalities are veering left of center (over the double yellow line) causing a head on collision, and driving off the road.

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The Institute for Highway Safety has recently revealed the most dangerous vehicles on the road. The 7 cars identified in this report received poor marks in crash testing and are likely to cause personal injury and serious bodily injury in an automobile accident. The institute for highway safety uses four primary tests for assessing a cars crash ratings:

  • A 40 mph offset crash in which the vehicle strikes a stationary object;
  • A side impact test in which a heavy SUV-type vehicle T-bones the test car;
  • Rollover testing in which the car intentionally strikes a metal strip to see how much force is required before the car flips; and
  • A rear-end impact in which the head restraints and seat belts are tested to identify the ability to reduce or eliminate whiplash.

The cars on this list that were the lowest scoring generally received poor marks in two of the four above categories. The seven vehicles identified in this test were:

  • Suzuki SX4 which received poor marks for rear end impacts and vehicle rollovers;
  • Jeep Wrangler which received poor marks for side impacts and rollovers;
  • Nissan Pathfinder which received poor marks for rollovers and rear end impacts;
  • Mazda CX-9 which also received poor scores for rollovers and rear end impacts;
  • Mazda CX-7 (see above);
  • Chevrolet Colorado Crew Cab which scored poorly for side impacts, rear end impacts and rollovers;
  • Dodge Ram 1500 which received poor scores in side impacts and rollovers.

Trucks and SUVs have a notorious history of vehicle rollovers in single vehicle and other serious auto accidents. A vehicle rollover is one of the most serious car accidents that can occur often resulting in catastrophic injury or death. For this reason, cars that perform poorly on the rollover test are never going to be recommended by the Institute for Highway Safety.

In addition to the increased likelihood and severity of injury, cars that score poorly on these types of tests might also cost you in increased insurance premiums. Poor design and engineering of SUVs or other vehicles likely to rollover might also justify a product liability claim. If you were involved in a rollover accident, either as a driver or passenger, it is worth speaking to an experienced personal injury attorney right away.

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I have written a few previous posts discussing the importance of uninsured motorist coverage on your auto insurance policy if you are involved in a serious auto accident, but no posts focused solely on underinsured motorist coverage. Uninsured motorist coverage will also serve as UNDERinsured motorist coverage if you are involved in a car crash with someone who has too little insurance. In Rhode Island the minimum liability coverage is only $25,000 and in Massachusetts it is even less at $20,000. If you have been seriously injured in a car accident or a motorcycle accident, your medical bills alone might easily exceed these small amounts of money.

Depending on the coverage you have on your policy, and the amount thereof, you may be able to use your uninsured motorist coverage to help pay for the damages over and above the amount of coverage that the at-fault driver maintained. Your insurance company will essentially “take the place of” the at-fault driver’s insurance company. There is a major difference between Rhode Island and Massachusetts when it comes to underinsurance law.

Underinsurance in Rhode Island

Rhode Island has more favorable laws than Massachusetts if you have been seriously injured in a car accident and need to utilize your underinsurance coverage. If the at-fault driver’s insurance company has paid it’s policy limits, whether that amount is the minimum $25,000 or $300,000, but it is less than the full value of your claim, then you can turn to your own policy. Your insurance company will be able to “write-off” the amount that you already received from the other company but you are still entitled to the full value of your uninsured motorist policy no matter how large or small. For example, if your full value is approximately $100,000 and the at-fault driver has a $50,000 policy, then you have roughly $50,000 that you are still owed. If your uninsured motorist policy is equal to $50k or more then you are likely to be fully compensated. If your policy is for the state minimum of $25k, then you are entitled to the full amount but you will still not be fully compensated for your loss.

Underinsured motorist coverage in Massachusetts

The concept and workings of uninsured motorist in Massachusetts is largely the same as described in the Rhode Island section above with one major exception. In Massachusetts, you can not “stack” your insurance policy on top of the at-fault driver’s insurance policy. Your coverage amount must be in excess of the at-fault driver’s policy or you will not be able to access any money from your own insurance. For example: Your injury is worth $50,000 and both the at-fault driver and your own policy is for the Massachusetts minimum of $20,000. In this scenario you are not entitled to ANY of your underinsured motorist because your policy is not in excess of the at-fault driver’s. This is why Rhode Island law is much more advantageous because in this scenario you would be entitled to $40,000 in Rhode Island but only $20,000 in Massachusetts.

Some Other Points

arbitration v. court

If you begin the process of trying to settle your serious injury claim with your own insurance company, you are bound to your insurance contract. This means that you must cooperate with the insurance company in ways that you did not have to with the at-fault driver’s insurance company. Another major difference is that many insurance companies have written arbitration provisions into their insurance policies. This means that all disputes, including underinsured motorist claims, must be dealt with by arbitration rather than litigation. This can be either a blessing or a curse, but arbitration is for another blog post.

other household members

Your car accident attorney should also review all of the household members at your residence because their auto insurance policies, if different than yours, might cover you for underinsurance.

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A new report has been released by a consumer protection agency outlining exactly how Allstate Insurance and programs like Colossus lower the value of your personal injury settlement. I will discuss the prominent points of Colossus below, but you are welcome to read the entire report here.

Most injury victims, particularly those with soft tissue injuries from automobile accidents, are unaware that insurance adjusters rarely determine the settlement value of your case. Instead, a highly sophisticated computer program named Colossus, pre-programmed with tons of data, is the ultimate decision-maker. This software, however, is designed to keep your settlements low.

How Allstate and Colossus Manipulate Settlement Figures

  • Insurance adjusters, with no medical training, are told to contradict and ignore determinations made by licensed and educated doctors. If they believe that a diagnostic test was unnecessary or that a given diagnosis was inaccurate, the adjuster can choose to ignore that information and choose not to enter it into the system;
  • Colossus uses hundreds and thousands of similar cases to determine the value of your particular case. Allstate, however, can choose not to input settlements on the higher end of the spectrum into the system, so that Colossus continues to keep settlement ranges low and ignores high end settlements;
  • Many soft-tissue injury victims seek treatment with a chiropractor for relief of their pain and symptoms. Despite chiropractors’ education and training, there is no doubt that Colossus discriminates against chiropractors. Their opinions and medical documentation is given less weight than that of a neurosurgeon, or orthopedic, for example.

What you can do about Allstate and Colossus

  • Your personal injury attorney can make a big difference. Colossus is designed to consider the attorney of record for the victim. If the attorney files lawsuits frequently against Allstate and refuses to settle for low money, then Colossus will increase the offers for that particular attorney. Before hiring your car accident attorney, ask him or her how many times he or she files suit, in particular, against Allstate. I file suit on roughly 50% of Allstate cases because I refuse to talk my clients into a low settlement to avoid the work of a lawsuit;
  • See a specialist or other medical professional. Because Allstate discriminates against chiropractors, it may be helpful to have your condition evaluated by additional medical professionals, such as your primary care physician, an orthopedic surgeon, etc. Even a trip to the emergency room at the beginning of the case may increase the value. In other words, personal injury claims with ONLY chiropractic treatment are ensured the lowest possible offer from Colossus.
  • Don’t delay in treatment. If you were injured, seek medical help. Even if you feel the pain may go away in a couple of days, it is important to seek help quickly. Your pain may persist for several months, but if you wait too long for the initial doctor’s visit, it may negatively affect the value of your claim.

Don’t allow Allstate or insurance companies that use similar software to undervalue your claim. You deserve fair compensation for your injury claim and that starts by hiring the right personal injury attorney.

Geico recently sent out a mass email to clients, and anyone else willing to listen, discussing the proposed bill in Rhode Island regarding compensation to auto body shops and fair settlement of property damage claims. Of course the insurance companies are using fear tactics informing everyone that rates may skyrocket with passage of this bill. I want to take this opportunity to offer a fair assessment of this bill, its purpose and the reasoning behind it. Trust me, I am not going to shed any tears for Geico, who I have previously described as one of the most difficult insurance companies to deal with, but I ultimately believe this bill is not going to pass as written even though it has a lot of strong points. Maybe I’ll be proven wrong…

If you’re involved in an auto accident, you may have a personal injury claim, but you will almost certainly have a claim for property damage. Property damage resolution is a major part of any motor vehicle accident claim and that is why my office helps clients with their damage claim for free if I represent them for their bodily injury claim. Insurance companies will fight for every penny on a property damage claim, cutting short rentals and lowering the value of your vehicle if a total loss. The purpose of this bill is to limit some of the tactics that insurance companies use to de-value property damage claims.

The bill puts into law many regulations that the Department of Business Regulations has already established for settlement of property damage claims. For instance, insurance companies are supposed to use NADA (or something similar) for the valuation of total losses. Insurance companies are also forbidden from trying to steer vehicle owners to a particular body shop. Almost all auto insurers, especially the larger ones, have partnerships with certain body shops in the State. Insurance companies try to direct customers to these body shops with the understanding that the auto body will be reasonable in negotiating the estimate and will work at agreed labor rates. This bill, if passed, will forbid insurance companies from steering vehicle owners to a particular body shop if the owner has already chosen their shop of choice. Of course, it has always been established that a person ultimately has the right to choose what shop they repair their vehicle at.

The most controversial part of the law, and the reason why ultimately, I believe it will not pass, concerns the obligation of the insurance company to negotiate the full amount of the vehicle estimate in good faith with the body shop. The reason this is a big deal is because insurance companies have capped body shops at certain dollar amounts for labor, paint, mechanical repairs, etc. If this bill passes, those caps will be destroyed and insurance adjusters will have to negotiate labor and painting rates as well as what repairs are necessary. If the insurance company does not comply then the auto body shop can file a lawsuit against the insurance company without the need of including the vehicle owner in the lawsuit. The problem with this bill, in my humble opinion, is that it is too harsh on the insurance companies. If they can not come to an agreed price with the body shop there is no alternative available for the insurance company except litigation. They are not allowed to withhold payment or ask the vehicle owner to repair the car elsewhere. Without any option available to them, insurance companies are going to be held to the fire by body shops or else face a lawsuit. I think another alternative will need to be included in the bill before passage.

It takes a lot for me to feel any sympathy for insurance companies and I would like to see this bill pass as it has a lot of merits, although increased insurance rates are likely to occur.

Even though lead paint has been banned in the United States since 1978, many houses still contain the poisonous material on its walls and window beams. Many of the houses in Rhode Island and Massachusetts that still possess lead paint are older multi-unit buildings such as 3 family houses and generally tend to be in poorer sections of the community. The problem is so wide spread that Rhode Island offers tax credits to encourage home owners to remove any and all trace of lead paint from their building.

Lead paint if ingested is highly poisonous and toxic, particularly to children under 6 who are still developing. Unfortunately, children under 6 are the most likely to ingest lead paint by licking the walls or eating paint chips. To make matters worse, lead paint actually has a sweet taste which can further encourage children to ingest lead paint chips. It is also misleading to believe that children must ingest paint chips in order to be poisoned because ample testing has shown that ingesting lead paint dust can have a similar detrimental effect on young children. Ingestion of lead paint can lead to developmental delays, nervous system damage, stunted growth, kidney disease and a host of other injuries and disabilities.

Massachusetts has a history of favorable decisions on behalf of lead poisoning injury victims and while Rhode Island has much less case law on the subject, lead paint actions can be brought against landlords or homeowners who negligently allow children to be exposed to lead paint. Insurance companies often fight these cases aggressively looking for ways to deny insurance coverage to the injured victims. Lead poisoning cases are extremely complex and require an experienced personal injury attorney to secure a favorable result.

The injuries to your child may be life changing and permanent if exposed to high levels of lead. This can lead to future medical expenses, a loss of earning capacity and/or potential and a tremendous amount of pain and suffering. It is imperative that you speak to a personal injury attorney right away if your child has been diagnosed with lead poisoning. Following such a diagnosis, the State Department of Health will usually order an investigation into the residence to identify the presence of lead paint. If the Department has identified lead in your rental property, you may have a case for damages.

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Asking what a contingent fee agreement is may be the most obvious question in the world of personal injury law even though I have never really discussed it before in detail. Every personal injury attorney in Rhode Island or Massachusetts will tell you that there is no fee until you receive money either by settlement or by jury verdict. My office also adheres to the same policy of no fee unless successful. This arrangement is the so called contingency fee agreement. But what does that really mean and how does it work?

It can cost several thousand dollars in legal time and expenses to handle even a minor car accident. Cases with major injuries such as broken bones, scarring, hospital stays or even death, may cost tens of thousands of dollars to properly and aggressively handle, especially if the case goes all the way to trial. This is especially true in cases of medical malpractice and product liability.

Personal injury attorneys understand, however, that accident victims may not be able to afford such high legal fees just to receive the compensation that they deserve. In fact, many people are most vulnerable after a car accident or slip and fall because they are forced to miss work and lose wages. For this reason, many attorneys agree to take the case for free unless and until there is a settlement or jury verdict. At that time, the personal injury lawyer will take his share of the settlement according to your contingent fee agreement. The overwhelming majority of attorneys, including my office, charge 1/3 of the total settlement fee. Some attorneys now charge 40% of the total settlement. This 1/3 fee is not written in stone and it is not a law.

A 1/3 contingent fee became the standard and it is what most attorneys adhere to for personal injury cases. 1/3 may be a very small amount of money or it may be a very large amount of money. Generally, the 1/3 is a fair and accurate representation of the time and effort that went into preparing and winning your case. Also, the 1/3 reflects the fact that your personal injury attorney takes the risk that he or she may never receive any money. If the case is lost or some other circumstance prohibits recovery for your case, then your lawyer worked for nothing. To avoid making costly errors, bodily injury attorneys are very particular about the types of cases that they take and will only take your case if it seems fairly certain that another party is liable to you and that that party has insurance. For example, a personal injury attorney is unlikely to take an auto accident case in which you appear at fault.

The contingent fee is not a law written in stone and you should talk to your personal injury attorney about the fee. Under certain circumstances, I have reduced my contingent fee for my clients, particularly in large cases where the potential settlement was high. Also, if you are fortunate enough to be in a position to pay your attorney his or her legal fees without the need for a contingent fee agreement, then you may be able to pay your attorney in that manner. An attorney will be much more likely to take a tricky or difficult case if you can pay the hourly wages and costs because the attorney does not risk a financial loss if the case is unsuccessful.

A national story printed on cnn.com discussing an investigation into bicycle accidents in New York City brings to light what is truly a nationwide dilemma. Rhode Island and Massachusetts are not without their fair share of bicycle accidents that result in serious injury and the question has to be asked whether the law does enough to protect bike riders on public streets.

Michelle Matson was struck while riding home on a bicycle by a driver who was speeding and subsequently fled the scene. She was nearly killed in this accident with serious injury to her skull and spine. She feels little effort was made to investigate the accident or apprehend the driver who nearly killed her and left the scene. As a result, Ms. Matson’s life was turned upside down and she has no legal recourse to recover for her pain and suffering and hundreds of thousands of dollars in medical bills. The question must be asked why no thorough investigation was conducted? The article points out that absent death or catastrophic injury, little investigation will be conducted into a bicycle accident.

There is no doubt that this problem exists in Rhode Island as well. While bicyclists have a right to use the road under the same rules as motorists, the assumption is that bicyclists merely get in the way of operators of motor vehicles. Bicycle riders must maintain the absolute care and lookout for all of their surroundings, yet the law puts little requirement on vehicle operators to take such care. Auto accidents involving pedestrians and bike riders are almost always serious because bikes offer such little protection to riders. The law must seek ways to better protect bike riders and more thoroughly investigate accidents.

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Among the stranger articles that I come across each day, CNN Money has reported that fatal car wrecks see a spike in frequency on Tax Day, April 15, the day by which everyone must file and pay their annual taxes. According to the article, the odds of being involved in a fatal car accident is 6% higher on April 15 than any other day of they year! The only other day of the year with a similarly high jump in deadly car wrecks is Super Bowl Sunday which I suppose would be easily attributed to drunk driving.

The reasons behind a spike in fatal car accidents on April 15 is not quite as clear, however. Some of the suggested reasons for this finding is that stressed drivers are more error prone drivers. The lack of sleep and/or concern over the filing of taxes can lead to distracted and disoriented drivers which leads to an acute spike in the number of accidents.

In case you didn’t have enough reason to dread tax day…