Consequences of Texting and Driving the “Kulesh, Kubert and Bolis’ Law”

Posted in Injury Law, Motor Vehicle Accidents

Many of us know about the dangers of texting and driving. Yet, some motorists continue to text and drive.  It is a dangerous and illegal activity.  How many people know that you can be put in jail for texting and driving?

Under a new law called the “Kulesh, Kubert and Bolis’ Law,” proof that a defendant was operating a hand-held wireless telephone while driving a motor vehicle may give rise to the presumption that the defendant was engaged in reckless driving.  Prosecutors are empowered to charge the offender with committing vehicular homicide or assault when such type of accident occurs from reckless driving.  Vehicular homicide is generally a crime of the second degree, punishable by imprisonment of five to ten years, a fine of up to $150,000, or both.  Assault by auto is a crime of the fourth degree if serious bodily injury occurs and a disorderly persons offense if bodily injury occurs.  A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.  The penalty for a disorderly persons offense is imprisonment for up to six months, a fine of up to $1,000, or both.

The new law is named after New Jersey residents who were killed or severely injured in a crash caused by someone using a handheld cell phone while driving.  Helen Kulash was crossing the street when she was killed by a driver illegally using a cell phone.  David and Linda Kubert are now amputees after a man who was texting crashed into their motorcycle.  Toni Bolis, nine months’ pregnant with her son, Ryan Jeffrey Bolis, was killed in a motor vehicle accident caused by a driver using a cell phone.

According to the New Jersey Division of Highway Traffic Safety, since 2008, over 10,000 drivers have been involved in crashes while using a cell phone.  A recent study conducted by the National Highway Traffic Safety Administration showed that not only do people tend to answer the phone and keep driving, but 45% of the people polled hold the phone in their hand while driving.  When asked how they thought their own driving changed when sending text messages, 25% of the survey respondents said the distraction made no difference in their driving yet almost all of the men and women asked (86% of the men and 90% of the women) said they felt unsafe as a passenger in a car while the driver was sending a text message or email.

If you still think this cannot happen to you, think again.  In June 2012, an 18-year old man in Massachusetts was convicted of homicide for texting while driving, which led to a crash killing a 55-year old New Hampshire man.  The Massachusetts man is believed to be the first person in the country convicted of vehicular homicide for texting and driving.

Here at Stark & Stark we represent victims injured in car crashes every single day. If you or someone you know has been hurt because of someone who was texting and driving, contact us right away.  We can help you understand your options and protect your rights.  The person who caused the accident will have an insurance company defending their rights.  You need someone to stand up for you to work hard to make sure your rights are protected.  We do that every single day.  It’s who we are, and it’s what we do.

Bad Faith

Posted in Injury Law

I’ve previously shared stories about insurance companies that engage in unfair claims settlement practices in order to avoid paying out on legitimate claims. The bottom line for insurance companies is money. The more claims the insurance company denies, the greater the profit. This is why several insurance companies have developed a reputation for systematically denying claims. Incredibly, some of these companies are proud of their reputation.

Recently, there was an article in the Philadelphia Inquirer which brought to light the egregious conduct of an insurance company in a battle which lasted 20 years. The accident occurred on September 4, 1996, when the Plaintiff, Sherri Berg, who was driving a brand new jeep, was struck by a large Suburban. While the Plaintiff was fortunately not injured, her jeep sustained very significant damage. She reported the accident to her insurance company, Nationwide, and took the vehicle to a body shop for a repair estimate. Although she did not know it at the time, the body shop declared the vehicle a total loss. Additionally, the frame was severely bent, which meant it was not safe to put back on the road. Nationwide balked at paying out the full value of the vehicle, and instead got a “second opinion” which called for the jeep to be repaired instead of being replaced. A mechanic from the shop was so disgusted by the insurance companies actions, and worried that the jeep was not safe to drive, that he felt compelled to contact the Bergs to let them know what was going on.

The Bergs filed a lawsuit in 1998 against Nationwide. Instead of Nationwide honoring the property damage claim, which was valued at approximately $25,000.00, Nationwide spent more than $3 million defending itself in the 16-year legal fight with the Bergs. During the lawsuit, the Plaintiff’s attorneys found internal documents which showed that Nationwide had a practice of fighting smaller claims tenaciously – even though such a strategy had been denounced by Pennsylvania courts as “unethical and unprofessional.” This is because they figured that most consumers would not spend the money to litigate these smaller cases, which would ultimately equate to more profit for the insurance company. The judge was so disgusted with Nationwide’s behavior, which included hiding photos of the vehicle, that he awarded $18 million in punitive damages in order to punish the insurance company.

Has an insurance company unfairly denied a claim that you recently filed? If so, please contact the experienced attorneys at Stark & Stark to discuss your situation.

Link to article: http://articles.philly.com/2014-07-14/news/51435798_1_crash-photos-jeep-nationwide-insurance

Social Media and Workers’ Compensation

Posted in Workers' Compensation

Recent news stories have highlighted  awareness of the dangers of digital data being exposed after breaches of security.  Digital data is not only exposed after breaches in security, such data can be exposed by an individual posting information that adversely affects their claim for workers’ compensation benefits in New Jersey. The U. S. Supreme Court  ruled on June 25, 2014 that police need a warrant to search information on an arrestee’s mobile phone, acknowledging the fact that for many of us our cell phones hold a “digital record of nearly every aspect of their life.” So you might wonder how the digital age and social media have affected injured workers in New Jersey. While an injured workers’ cell phone cannot be searched by an employer after an injury, the postings of an injured worker on Facebook, Twitter, or Instagram can be discoverable and might cause more problems than the worker can imagine.  For example, think about the situation where an injured worker tells a treating doctor that he or she cannot do certain activities because of their work injury, and then that person posts pictures of their leisure activities on Facebook.  An employer or insurance company attorney might see a posting of an employee running/walking a charity race, or on a boating trip for example.  If an injured worker tells their doctor that they cannot do certain activities they should not be doing those activities; and if they try on occasion, they should remember that pictures of those activities might end up on discoverable social media. In the age of GOOGLE, so many of our leisure activities can be captured and saved for all to view.

You might ask how an injured worker’s postings on the internet can adversely affect that employee.  There are clear provisions against fraud in the workers’ compensation Statute. The four instances below outline the types of fraud that are actionable under the law. Fraud is called into question when an employee:

  • 1)  misrepresents his / her job status while collecting temporary disability benefits
  • 2)  files a claim for an injury that did not occur on the job
  • 3)  knowingly misrepresents his / her physical condition to obtain WC benefits
  • 4)  misrepresents previous trauma or treatment

It is easy to imagine how a workers’ compensation carrier can twist innocent postings on social media to fit the fraud requirement above, even if no real fraud is involved. Therefore it is imperative that injured workers who have filed workers’ compensation claims be cognizant of the down side of posting their activities on social media. Please contact Stark & Stark if you have any questions about Workers’ Compensation Law

Workplace Violence

Posted in Workers' Compensation

Workplace violence can happen anywhere and at anytime. It can involve employees, clients, customers or visitors. According to the Occupational Safety & Health Administration (OSHA), nearly 2 million America workers report being victims of workplace violence each year, and its assumed that more cases go unreported. OSHA warns that workplace violence can strike anytime and no one is immune. Research has identified certain risk factors that may increase the likelihood of violence for certain workers within certain occupations; such factors include businesses that run cash operations with the public (e.g. convenience stores, restaurants, bars, stores, etc.), and others include situations where workers work with unstable, volatile people. Working alone or in isolated areas may also contribute to the possibility of violence.

Research shows that the health care sector leads all other industry sectors in incidence of nonfatal workplace assaults with 48% of all nonfatal injuries from violent acts against workers occurring in this sector. According to the National Crime Victimization Survey, mental health workers experienced the highest rate of simple assaults in the health care sector, with 43.2 assaults per 1,000 workers. According to research studies, psychiatric nurses report among the highest violent victimization rates among all types of nurses.  Workplace violence is defined as violent acts, including physical assaults and threats of assault, directed toward persons in a workplace or on duty.

We often hear from clients who work in the health care industry or in the prison system who have been injured by violent residents or inmates. Anytime you are injured at work you should immediately report the injury to your employer and request treatment through their workers’ compensation insurance. If you have been physically assaulted by a fellow co-worker or by a resident, patient, inmate or even a customer, you may be entitled to workers’ compensation benefits under New Jersey’s workers’ compensation system.

If you have questions about an injury occurring at work, we would be happy to assist you.  Please contact Stark & Stark’s experienced attorneys today for your confidential no obligation consultation.

Psychiatric Claims Under Workers’ Compensation

Posted in Workers' Compensation

New Jersey Workers’ Compensation recognizes claims for specific accidents as well as occupational injury and disease claims.  Psychiatric claims can fall into either category, but have traditionally been very difficult cases to prove.  Under Goyden v. State of New Jersey, 256 N.J. Suer.438 (App.Div. 1991), five objective elements must be met for a worker’s condition to be compensable.  The working conditions must be objectively stressful, the believable evidence must support a finding that the worker reacted to the m as stressful, the objectively stressful working conditions must be peculiar to the particular work place, there must be objective evidence supporting a medical opinion of the resulting psychiatric disability in addition to the bare statement of the patient and the workplace exposure must have been a material cause of the disability.

In a recent unreported decision, Rizzo v. Kean University, (Decided June 11, 2014.) the Appellate Division has maintained this standard of proof.  In Rizzo, the Petitioner alleged that she was confronted and trapped by a co-worker and suffers from post-traumatic stress disorder and anxiety.  As a result she sought counseling and did not return to work.  She subsequently sought a leave of absence and later resigned.  She filed a formal claim petition several months after the incident. The employer denied compensability and she sought treatment on her own.  More than three and a half years, she filed a motion requesting that the employer provide treatment and reimburses her out-of-pocket expenses.  During the trial, the worker revealed that she had been sexually abused as a child and locked in a closet.  Her doctor testified that she did not believe the response would have been the same if she had not had the experience as a child.  Therefore, the judge found that the sexual abuse was the source of her disability; not the office incident.

Psychiatric claims are very fact specific.  The facts of each case must be thoroughly reviewed in order to determine if a particular claim is compensable.  At Stark & Stark, we have experience in evaluating the facts and the likelihood of success.  If you have questions about your specific situation, please contact Stark & Stark to schedule your complimentary consultation.

Personal Injury Practice Tip- Beware the Triple Net Lease!

Posted in Injury Law

Involved in a premises liability claim involving a commercial property?  Depending on the facts of your case, you may find yourself subject to a little known immunity provision due to the existence of a “triple net lease”. 

The concept immunizes the owner of a commercial property from liability based upon the conditions of its property where:

  1. The entirety of the property is leased to a tenant who takes exclusive possession;
  2. The contract obligates the tenant in exclusive possession to address any and all maintenance and repair obligations for the property;
  3. The tenant in exclusive possession is obligated to pay the taxes due on the property; and,
  4. The tenant in exclusive possession is also obligated to maintain the insurance on the property. 

Where these factors are fully satisfied, the owner of the property is immune from liability. 

Applicability of the doctrine is a fact-sensitive inquiry and will turn upon the language in the lease agreement, the conduct of the parties and the particular theory of liability being pursued.  As such, to flesh out the issues, your discovery should include requests for all documents evidencing the defendant’s interest in the property, including but not limited to lease agreements; evidence reflecting who was obligated to maintain, and who actually maintained, liability insurance for the subject property; evidence of all tax payments made on the subject property for the relevant time period; and, any and all documentation evidencing maintenance and repairs performed on the subject property during the relevant time period and all documents evidencing the entity/person charged with the duty to inspect, repair and maintain the property. 

For more information on the doctrine, consult Geringer v. Hartz Mtn. Devt. Corp., 388 N.J. Super. 392 (App. Div. 2006), certif. denied, 190 N.J. 254, (2007) 

Harley-Davidson Announced Large Recalls in July and August 2014

Posted in Motorcycle Injury

Harley-Davidson is recalling thousands of motorcycles because a faulty ignition switch can cause bikes to stall and crash. Harley has determined that modifications that allow engines to rev above 5,600 RPMs can cause engine vibration that can turn the ignition switch from “on” to “accessory.” When that happens the engine can shut off while being driven and potentially cause a crash. Bikes that have experienced this vibration have so far been identified to have some after market modifications that allow the engine to rev higher than Harley typically tests in the factory.

The recall affects more than 3,360 FXDL Dyna Low Rider motorcycles. Harley Davidson has said no crashes have occurred but they are obviously concerned that accidents may happen and are sensitive to the ignition problems General Motors and Chrysler have experienced.

The National Highway Transportation Safety Administration (NHTSA) said this is the second recall Harley-Davidson has had to make this year. In July the manufacturer recalled more than 66,400 Touring and CVO Touring motorcycles from the 2014 model year to repair problems that could cause the front wheels to lock up and crash. To see a list of these, click here. If you have been injured on a motorcycle contact Stark & Stark Riders Lawyers today.

Out-Of-State Drivers & New Jersey’s “Deemer Statute”

Posted in Motor Vehicle Accidents

Many of the people who drive in New Jersey live out of state.  I am one of those people.  While I live in Pennsylvania, 90% of the driving I do is in New Jersey.  Under these circumstances, I wanted to find a way to take advantage of Pennsylvania’s lower auto insurance premiums while avoiding New Jersey’s restrictive limitation on lawsuit or “verbal threshold” laws.

The problem was New Jersey’s Deemer Statute, N.J.S.A. 17:28-1.4, which applies to out-of-state drivers who are injured in accidents in New Jersey.  Under the Deemer Statute, if you are an out-of-state resident and you are hurt in an accident here in New Jersey, you will be subject to New Jersey’s restrictive limitation on lawsuit or “verbal threshold” laws if your auto insurance company is licensed to transact business in the State of New Jersey.  Being subject to New Jersey’s “verbal threshold” is a bad thing.  If you are subject to the “verbal threshold,” you have a limited right to be compensated if you are injured in an accident.

So if you live outside New Jersey, but do a lot of driving here, is there a way to avoid New Jersey’s restrictive “verbal threshold”?  The answer is yes.  The first thing you should do is follow the link below.  It will take you to a list of all of the auto insurance companies that are licensed to transact business in New Jersey.  Look for your auto insurance company.  If it is not on the list, you will not be deemed subject to New Jersey’s “verbal threshold” if you are injured in an accident in New Jersey.

http://www.state.nj.us/mvc/pdf/Vehicles/insurance_codes.pdf

If you do see your auto insurance company on the list, you can choose to change to another company that is not on the list, thereby sidestepping New Jersey’s Deemer Statute and “verbal threshold” in the event you are injured in an accident in the Garden State.  I would suggest calling your insurance agent and asking for a list of auto insurance companies that do not offer policies in New Jersey.

If you live outside New Jersey, but have auto insurance through a company that is on New Jersey’s list of licensed companies, you will be deemed subject to the “verbal threshold” by way of the Deemer Statute.  This is true, even if you chose the no limitation on lawsuit option when you purchased your auto insurance policy in your home state.

This may seem unfair, but there is good news.  There are many insurance companies out there that do not transact business in New Jersey.  In fact, I recently saw an ad in a newspaper for a Pennsylvania based insurance company that does not transact business in New Jersey.  The ad offered Pennsylvania residents who drive primarily in New Jersey, like me, a way around New Jersey’s Deemer Statute.  Simply buy a policy through an insurance company that is not licensed to transact business in New Jersey, and if you are injured in an accident in the Garden State, neither the Deemer Statute nor New Jersey’s “verbal threshold” will apply.

In the end, this advertisement made a lot of sense to me.  If I were an out-of-state resident who drives primarily in New Jersey (which I am) and I wanted to avoid the headaches and restrictions that come with New Jersey’s Deemer Statute and “verbal threshold” (which I do), I would find an auto insurance company that is not on New Jersey’s list of licensed companies (which I did).

If you want to discuss New Jersey’s Deemer Statute or “verbal threshold” laws in more detail, or how they might affect you, feel free to contact Stark & Stark.  And as always, stay safe out there.

R.1:40 Qualified Mediator on the Roster of Court Approved Mediators

Posted in Workers' Compensation

As a trial lawyer, I have always argued my case from one side or the other.  There is always a winner and a loser in litigation. While winning is rewarding, the process is adversarial and can be draining.  Mediation is an alternative to litigation and is a means of resolving disputes between parties with the assistance of a neutral third party. A mediator makes no findings of fact and does not give his or her opinion as to how to resolve the issues.  The mediator’s role is simply to facilitate a settlement between the parties by engaging them in conversation and helping them to understand the others position and needs. A successful mediation is one in which the parties agree on the best way to resolve their dispute and everyone walks away content.  After 20 years of litigating cases, I was intrigued by the prospect of a less adversarial forum.  With the training complete, I have been qualified as a R. 1:40 qualified mediator on the roster of court-approved mediators.  I have also volunteered to work as a municipal court mediator. I believe that my experiences as a mediator will give me a fresh perspective in the courtroom helping me to be on the winning side more often than not. I am looking forward to helping would-be litigants resolve their disputes through the mediation process.      

Fraud by an Employer in Obtaining Workers’ Compensation Coverage Does not Affect an Injured Employee

Posted in Workers' Compensation

What happens to an innocent injured employee when an employer commits fraud in the application process for a workers’ compensation policy?  In American Millennium v. Berganza, 386 N.J. Super 484 (App. Div. 2006) the Appellate court examined the case where a drywall subcontractor, Berganza, obtained workers’ compensation coverage through an insurance broker that was placed with American Millennium Insurance Company on January 18, 2003 with an effective date of January 19th.  On January 21, 2003, Berganza’s employee Jose Arias fell off of a ladder and broke his leg on the work site.  The trial judge found that Berganza reported the accident to the broker on January 24, 2003, who in turn notified American Millennium on January 28, 2003.  On January 29 or 30th, American Millennium issued the insurance policy to Berganza with an effective date of January 19, 2003.  American Millennium declined coverage and filed a suit to void the policy stating that a review of their documents revealed that the employer, Berganza made fraudulent statements in the application process, and that the accident happened before the policy was actually issued, although it was backdated to before the accident. The Appellate court held that American Millennium could not deny its obligation to the injured employee based on fraud committed by the employer because the policy was in effect on the date of the injury to the employee, and there was no valid cancellation.

In addition, in the case of Alea North America Insurance Company v. Salem Masonary, 2006 U.S. Dist. LEXIS 84135, The United States District Court for the District of New Jersey followed the decision in American Millennium and refused to allow a workers’ compensation policy to be voided for fraud on the part of the employer in obtaining the policy.   In the Alea case, Salem Masonry Company employed Nuno Alexandre to do masonry work.  On its insurance application Salem stated that none of its employees performed work at more than 15 feet above ground.  Nuno Alexandre fell down an elevator shaft 5 – 6 stories high sustaining catastrophic injuries.  Realizing that Alexandre fell from more than 15 feet above ground Alea brought an action to rescind the policy.  The U.S. District Court followed American Millennium, which had just been decided, and stated that it stands for the proposition that a “…policy issued on the untrue statements made by the employer is no defense. “  The court also stated that the reasoning in American Millennium “ is sound, and most likely captures the sentiments of New Jersey’s highest court if it were to hear the case. Moreover, workers’ compensation laws were enacted at the turn of the twentieth century to protect workers.”  Alea at 15.  Case law makes it clear that fraud on the part of an employer in the workers’ compensation setting should NOT be allowed to penalize an innocent employee.