Recently in Wrongful Death Category

December 11, 2012

Wrong Way Drivers Responsible for Hundreds of Auto Accident Fatalities

The National Transportation Safety Board released the findings from a study which revealed, the not surprising at all fact that, wrong way drivers are extremely dangerous and cause hundreds of auto accident fatalities each year across the country. The study also finds that the majority of wrong way drivers are intoxicated and operating their vehicle at two to three times the legal limit for alcohol.

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I have written previous posts highlighting the danger of head-on collisions. Head-on accidents are among the most dangerous and life threatening auto accidents that can occur because the speed and force of both vehicles impact directly into one another. Wrong-way drivers, whether on a side street, a main street, or in extreme cases, the highway, create a very high likelihood of a head-on collision.

When an operator is coming down the road in the wrong direction it can be very difficult to avoid collision for a number of reasons. For one, as drivers we are unaccustomed to be on the lookout for wrong-way drivers. While we are trained to always keep our eye on the road, a driver coming the wrong way down the highway or down a one way is not something we are likely to look for. Second, even if we are aware of the wrong way driver it may be impossible to avoid collision. Perhaps there is no room to get out of the way (as in a tight one-way road) or the driver is coming to fast for you to take evasive action (as on the highway).

A car accident caused by a wrong-way driver is always a scary thing. I recently was retained by a woman who was struck by a man driving down the wrong way on Route 195 West in Fall River, Massachusetts. She turned her car abruptly at the last second and was able to avoid a direct head-on collision, but despite her bravery and quick thinking she still suffered a broken leg and ankle in the collision.

If you are injured in an accident caused by a wrong way driver you may be entitled to past and future medical bills, lost wages and pain and suffering. My office specializes in car accident cases and complex injuries. Call my office for a free consultation and let my experience work for you.

Continue reading "Wrong Way Drivers Responsible for Hundreds of Auto Accident Fatalities" »

November 14, 2012

Interesting Case from Maine Involving Commercial Truck Accidents and Insurance Coverage

A recent Supreme Court decision from the State of Maine brings to light some interesting considerations for accidents involving commercial work trucks and insurance coverage. The case, State Farm Mutual Auto Insurance v. Estate of Carey, stems from a tragic auto accident that claimed the life of James Carey. Mr. Carey was struck and killed by Roger Linton who was an independent contractor and former employee of Jennings Masonry. Linton was driving a large commercial truck owned and insured by Jennings but was not working at the time of the accident. State Farm insured the truck involved in the loss.

Linton was not currently an employee of Jennings, but was in the past. He also frequently drove Jennings vehicles with permission. On the date of this accident, he was again driving in a Jennings truck but did not return the vehicle when he completed his work. Instead, Linton took the truck to several friends houses and a tavern. It was during this "excursion" that the fatal auto accident occurred involving Mr. Carey. Linton was legally drunk at the time of the accident and arrested.

Quickly, State Farm petitioned the Court for a declaratory judgment stating that they had no obligation to insure or defend Linton. Their position was that he did not have "permission" to use the vehicle at the time of the accident and was not using it for work purposes, and therefore, he was not legally operating the vehicle at the time of the collision. If he did not have the permission of the owner to operate the vehicle at the time of the accident, State Farm, would not be required to cover the loss. (As a side note, if that sounds unfair because it could leave the owner of Jennings Masonry holding the bag - you are correct. If an insurance company can avoid paying they will regardless of the harm it might present to their insured).

Some States with mandatory insurance coverage have taken the position that since the lawmakers intended all vehicles to carry liability insurance, that they would be inclined to find coverage in a situation like the one at hand, so long as permission was given, at any time, to operate the vehicle. This is the so called "initial permission" rule. The Maine Supreme Court did not accept this approach and instead held that the trial court would have to reconsider the case under the minor deviation rule. The minor deviation rule has long been the standard for determining whether an employees actions are covered under the employees policy. Clearly, an employee acting on behalf of his employer at the time of an accident is covered by the company's policy. Under the minor deviation rule, an employee who makes a slight or minor detour, such as stopping for lunch, while using a work vehicle will be covered. A major deviation, however, such as the one taken by Linton are unlikely to be covered because it was so far outside of the scope of his employment and work related use of the vehicle, that a jury would conclude that he did not have his employers permission to use the vehicle in that manner.

Auto accidents involving commercial trucks are very serious because of the size and weight of the vehicles involved. The injuries sustained can be catastrophic, or as in the case of Mr. Carey, fatal. It is imperative that you speak with an experienced truck accident attorney right away to ensure that you receive all of the compensation that you deserve.

Continue reading "Interesting Case from Maine Involving Commercial Truck Accidents and Insurance Coverage" »

November 5, 2012

Wrongful Death of a Fetus at Issue in Federal Lawsuit Arising out of a Car Accident

Abortion rights and wrongful death law seem not to have much in common, but a new federal lawsuit in Nebraska may have an interesting effect on both abortion laws and wrongful death laws across the country. The lawsuit stems from a tragic auto accident in which a Maryland couple was killed with their two children when a tractor trailer struck their stationary automobile. It turns out that the woman was also pregnant with the couple's third child. The estate brought the action for wrongful death on behalf of the entire family and cited a 2003 Nebraska law which extends legal protections to an unborn fetus. This is the first case to raise such a statute, but it appears that the law should also give wrongful death rights to the unborn fetus.

Readers can now probably see why this law is problematic when viewed in the light of Roe v. Wade and its subsequent cases. If an unborn fetus is considered a child in the eyes of the law, so that it can be granted legal rights, then it will legally (rather than morally) be murder to terminate the pregnancy. I assure you I am making no stance on the topic here.

Most of the States that have enacted laws similar to the one in Nebraska are right wing leaning States such as Utah, Florida and Nebraska, which are keen on stronger abortion laws and restrictions. The Rhode Island Supreme Court in Amica v. Miccolis held that a nonviable fetus could not maintain a cause of action for wrongful death because it is not a person within the meaning of the wrongful death statute. If this auto accident occurred in RI, the fetus would not have an individual cause of action. If the child, however, could have been delivered (by C-Section for instance) and then died from the injuries sustained in the automobile accident, then a cause of action for wrongful death could proceed.

It will be interesting to follow cases like this one as they unfold. It's mark on federal law could be wide reaching and may cause more States to enact similar liegislation.

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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.

November 2, 2011

As Many as 2000 Patients May Have Received the Wrong Medication at Rhode Island Hospitals

Lifespan, which manages several RI hospitals including: Rhode Island Hospital, Miriam Hospital, Newport Hospital and Hasbro Children's Hospital, has today announced that as many as 2,000 patients over the past year may have received an erroneous prescription at one of these Lifespan Hospitals. Lifespan is blaming this medical malpractice error on a computer, or software, malfunction. Their statement does not indicate whether anyone was harmed by this malpractice. It is understood that most affected patients have been contacted regarding this error or are in the process of being contacted.

Giving a patient the wrong medication, the wrong dose of a medication or unnecessary medications are all examples of medical malpractice. While the full extent of these errors by Lifespan are unknown, you may be entitled to collect personal injury damages if you were injured or harmed because of receiving incorrect medication. At the same time, not all victims of this mistake are entitled to compensation. If you discovered the error before ingesting the medication or if you ingested the medication but were not harmed, you may not be entitled to compensation. However, if the wrong medication caused you personal injury, even temporarily, you may be entitled to damages for pain and suffering, medical bills (if you were required to seek treatment) and lost wages if you were unable to work.

It is unclear if anyone was seriously injured by Lifespan's mistake but given the high risk of pharmaceutical medication, it is likely that someone was seriously injured. Patients may have been given medications to which they are allergic or may have been given medications that have harmful or potentially fatal interactions with other medications. Overdoses from receipt of the wrong amount of medication are also possible. Anyone seriously injured because they were prescribed the wrong medication should contact an experienced medical malpractice attorney right away.

May 24, 2011

Providence is Apparently Very Dangerous for Pedestrians

Following the recent study of Rhode Island's worst intersections, comes another study identifying the most dangerous metropolitan areas for pedestrians. The group, Transportation for America, determined Providence to be the fourth most dangerous metro area in the Northeast. According to their findings, 117 people were killed while walking in Rhode Island from 2000 to 2009. The study also accounted for population and the proportion of the population that walks to work.

Although, scoring poorly in the Northeast, Providence was relatively low compared to other areas across the Country. Rhode Island finished 31st of the 50 States with Florida apparently the deadliest State in the Country for pedestrians.

The overwhelming majority of pedestrian accidents and injuries arise from car accidents. Clearly, even the largest and strongest of us is no match for a car or truck travelling between 30-50 mph. Pedestrian accidents are always serious and require an experienced attorney ready to fight and go the distance, if necessary.

Continue reading "Providence is Apparently Very Dangerous for Pedestrians" »

December 29, 2010

Study Suggests Obese People More Likely to Die in Car Accidents

With New Year's resolutions coming around the corner, a new study suggests that there may be another reason for the overweight to shed excess pounds. A recent study suggests that obese men and women are far more likely to die in serious auto accidents than are men and women of normal weight.

According to the study:

  • A body mass index in the class II obesity range of 35 to less than 40 kg/m2 boosted risk of fatality in a severe crash by 21.2% compared with normal weight;
  • And morbidly obese drivers with a BMI of 40 kg/m2 or greater were 55.9% less likely to survive an accident than their normal weight counterparts.
The primary cause for these findings seems to be that obese people are closer to the steering wheel and windshield which may cause traumatic injury upon impact. In addition, there already poor health may make it even more difficult to survive serious injury. The study compared data of over 150,000 auto accident fatalities over the period of five years to arrive at their conclusions.

Interestingly, mildly overweight persons, may experience protection from injury due to their size.

Continue reading "Study Suggests Obese People More Likely to Die in Car Accidents" »

December 15, 2010

Massachusetts $71 Million Dollar Tobacco Verdict is Making News...

...and so it should. A suffolk county jury has awarded the family of Marie Evans an astonishing $71 million dollars in her wrongful death lawsuit against Lorillard tobacco, the makers of Newport cigarettes.

There have been many large awards against the tobacco companies in the past and by now the story is known to all. Tobacco companies knew for decades that their product was deadly but continued to hide and ignore evidence while promoting their product as safe. Years, and thousands of deaths later, the tobacco industry is the subject of thousands of lawsuits. But this case added another element that is quite interesting.

The estate of Marie Evans argued that Lorillard tobacco promoted and marketed Newport cigarettes to poor minority children. Ms. Evans was only 9 years old when first given a free pack of Newports while living in the Orchard Park housing projects as a child. Ms. Evans was hooked and smoked Newports until her death at the young age of 54. Attacking the cigarette companies for their predatory marketing practices of handing out free samples to poor and impressionable youth is a new tactic.

At this stage the case will surely be appealed, but there is also the chance that the jury could award punitive damages that excees the $71 million already awarded.

August 19, 2010

Is Rhode Island #1 for Drunk Driving Auto Accident Fatalities?

Democratic candidate for Attorney General, Steven Archambault, stated during a debate last night that he has a "four-point" plan for dealing with the drunk driving problem in Rhode Island. Archambault is calling for stiffer penalties particularly for second and third offenders or those whose blood alcohol level is very high. The increased penalties mean that those convicted of DUI in RI could face longer prison sentences or longer suspensions of their license.

Archambault, rightfully, commented that this State should not be at the top of the Country for alcohol related auto accident deaths. His statement led the Providence Journal to investigate the accuracy of the statement, and to his credit, Rhode Island ranks very high in drunk driving related auto fatalities. In fact, Rhode Island ranks fifth in the Nation for auto accident fatalities caused by a driver with a blood alcohol level over the legal limit of .08.

Rhode Island suffered 69 driving fatalities in 2008 (the year of the PROJO report) of which thirty-eight were caused by a legally drunk driver. That is nearly forty percent of all auto fatalities! While our rank has bounced around over the years, it is always quite high and in the top 10. For 2003 and 2004, Rhode Island had the worst record for alcohol related auto fatalities. A dubious distinction to be sure!

I will be curious to see if the other Attorney General candidates will take a similar tough stance against DUI given these statistics.

Continue reading "Is Rhode Island #1 for Drunk Driving Auto Accident Fatalities?" »

January 6, 2010

Wrongful Death Statute Now Allows for Recovery of Punitive Damages

A bill introduced by Representatives Caprio, Petrarca, Silva, Edwards, and Lally has now become law. Rhode Island General Law, Chapter 10-7 "Death by Wrongful Act" now includes the following:

R.I.G.L. 10-7-7.1. Punitive Damages. In an action commenced under section 10-7-5, recovery may be had for punitive damages if such damages would have been recoverable had the decedent survived.

Punitive damages are damages in addition to compensatory damages (medical bills, lost wages, pain and suffering, etc) that are intended to deter the defendant from acting in a certain way. Punitive damages are typically awarded in cases where the defendant's negligence was egregious or his behavior reckless. The most well-known examples have come from lawsuits against the tobacco industry.


Rhode Island joins the growing number of States (now the majority of States) to allow for punitive damages in a wrongful death lawsuit. I want to thank our State Representatives who fought diligently to pass this bill and who continue to look out for the well-being and civil rights of our State citizens.

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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.

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.

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.
June 16, 2009

RI House of Representatives Amends Wrongful Death Statute

The House has voted to approve H5969 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.

The amendment comes in the wake of the tragic case of Francis J. Marx, who was only 21 at the time of his death as a result of an accident during a URI pub crawl.  I applaud this amendment for recognizing that no parent should ever have to bury their child and that the pain is not reduced because the child was an adult.