In September, the New Jersey Supreme Court heard argument in two cases, which address the issue of bad faith conduct by an automobile insurer in failing to fairly investigate and resolve uninsured/underinsured (UM/UIM) claims brought by two of its policyholders.
In New Jersey, when a person is injured as a result of the negligence of an automobile driver who is uninsured or is injured, but the person causing the collision has insufficient insurance, a driver or passenger may bring a claim against his/her own automobile insurance carrier for uninsured (UM) or underinsured (UIM) motorist coverage. Unfortunately, in many instances, automobile insurers treat their own policyholders (insureds) as adversaries and not as insureds to whom they owe a fiduciary duty of good faith and fair dealing.
The two cases, both involving New Jersey Manufacturers Insurance Company, were brought by NJM policyholders who asserted that NJM treated them unfairly and in bad faith.
Unfortunately, under New Jersey law, there is no remedy when an automobile insurance company fails to treat its insureds unfairly when appraising UM and UIM claims. A successful claimant is not entitled to obtain attorney fees as a result of the conduct of its own insurance company. Furthermore, because a claimant is only entitled to recovery the amount of its own policy limits, a claimant can never received more than the amount of the coverage which the insured bought. Thus, insurance companies have no incentive to pay the full amount of the claim even when the claimant’s injuries far exceed the policy limits. Knowing that claimants will have to expend money to pursue a claim, the insurance companies know that a claimant will be forced to take less than his/her own policy limits. The two cases before the New Jersey Supreme Court seek to hold insurance companies responsible when they fail to timely investigate and resolve meritorious claims.
Attorneys for the insureds rightly argued that such bad faith conduct by insurance carriers is epidemic and that without a remedy to the problem that insurance carriers will continue to mistreat their insureds. What was most astounding, but what plaintiff trial lawyers in New Jersey have long known, was the statement of New Jersey Manufacturers’ (NJM) own attorney, who publicly acknowledged during argument that NJM does not believe that it owes a fiduciary duty to its own policyholders and that its policyholders who make claims under its policies are treated as adversaries. This was an astounding admission as it is counter to the law in the State of New Jersey.
Hopefully the New Jersey Supreme Court will provide New Jersey consumers with a real remedy when their insurance carriers act in bad faith.
Stark & Stark Shareholder, Stephen Corr was quoted in, Capital titled, “Pfizer Files to Have Zoloft Birth Defect Claims Dismissed” on November 5, 2014. The article discusses ongoing cases against Pfizer for their antidepressant drug, Zoloft. 526 lawsuits have been filed against the company. Even thought Pfizer argued to have all cases dismissed, Mr. Corr quoted, “I think obviously the drug causes problems, and we’re going to prove that in court.”
If you or anyone you know has been effected by this drug, contact Stark & Stark today.
Stark & Stark is committed to furthering Continuing Legal Education for attorneys as evident by the firm’s presence at the New Jersey Association for Justice’s 2014 Meadowlands Seminar. Stark & Stark will have five attorney presenters at six separate programs throughout the event. The event will be held at Hilton Meadowlands Hotel in East Rutherford, New Jersey on November 12, 2014 through November 14, 2014. Below is a list of Stark & Stark attorneys that will be presenting at the event.
- Michael A. Brusca, Shareholder in the firm’s Nursing Home Litigation Group, will present “End Your Case at the Beginning: Building an Opening Statement in Discovery” in the Nursing Home program.
- David R. Cohen, Shareholder and Chair of the firm’s Nursing Home Litigation Group, will serve as Co-Chair of the “Nursing Home: Building Blocks to Maximize Results” program.
- Michael G. Donahue, III, Vice President of the NJAJ and Shareholder in Stark & Stark’s Accident & Personal Injury Group, will present “Expert Opinions” in the “Evidence Issues Before and During Trial” program and Co-Chair the program titled, “Technology: Tools to Build Compelling Cases.”
- Bruce H. Stern, Shareholder in Stark & Stark’s Accident & Personal Injury Group, will serve as Co-Chair of the program “Cross Examination College” where he will present, “Cross of the Defense Doctor in a TBI Case.”
- Eric D. Dakhari, member of the firm’s Nursing Home Litigation Group, will present “Omissions and Oversights: Preparing Your Client for Deposition,” “Seeing Your Case Through Rose Colored Glasses: Mistakes Made at Trial,” and “Technology for Winning Case Preparation.”
For a full list of the various programs and presentations, or to register to attend, please visit the New Jersey Association for Justice’s website by clicking here.
Personal injury attorneys are advocates for people who have been injured in an accident, whether it is a slip and fall, trip and fall, work related, car, motorcycle or recreational accident. Our job is to represent the rights of the injured party, not the insurance company. So, why do personal injury attorneys have such a bad reputation in our society and why are we so often seen as greedy ambulance chasers? Whether the reason for the negative image is television, commercials or the few bad apples out there, the stereotypes are damaging to our legal system and society. The legal system is what people should turn to in their time of need. It is their last avenue for appeal and redress when private parties and the government will not act responsible for their negligent acts. And truth be told‚ the goal of the vast majority of personal injury lawyers out there is to help people in their time of need.
Injury attorneys not only help people‚ but the most important consequence of their work is a safer environment for all of us, our children, mothers, fathers and friends. Corporations and people have to be concerned about what can happen to them if they do not behave in a reasonable manner. Safety laws and regulations that are currently in place are largely the result of injury attorneys; enacted in response to negligent behavior‚ and these laws provide a standard which intends to keep the public healthy and safe.
There may be a time in your life when you are faced with a situation that will require you to hire a personal injury attorney. You should be represented and protected and not made to feel like just another file in the filing cabinet. You are an individual with your own worries and hopes about your injury claim and we are here to help you.
This is especially true with us at Stark & Stark. We treat all of our clients with the utmost care and we do everything we can to ensure that your rights are represented. If you or your family are ever injured in an accident‚ please contact us for a free consultation.
Now that school is back in session and children and parents alike have become accustomed to the daily routine of school, it’s no time to let down your guard for school bus safety. Over 50% of the injuries that occur while getting on and off the school bus are to children 5 to 7 years old. According to the School Transportation News, about 16 children are fatally injured as pedestrians in the loading and unloading zone around school buses annually. Although that is an improvement from the 75 fatalities in 1975, the only acceptable number is zero
In order to accomplish this goal it is incumbent upon school districts and school bus transportation providers to have an overall comprehensive approach to pupil transportation safety. School administrators, transportation supervisors, teachers and bus drivers must be properly informed and trained to practice all bus safety procedures. Students must be trained in all aspects of bus transportation safety. It’s so important that New Jersey law requires that District Boards of Education provide public school students with safety education programs.
Fortunately there are many great sources of information on student transportation that are easily accessible on the internet to all of us. Some, to name a few are:
1. The National Highway Safety Administration
2. The National Safety Council
3. The National Association For Pupil Transportation
As National School Bus Safety Week has come to an end, we need to make sure our children are safe throughout the year. Learn and make sure that your district is following all the bus safety rules.
The concept of “internal appeals” in PIP is not new, and it is a subject of which lawyers actively practicing injury law in New Jersey should be well aware. However, if DOBI gets its way, the framework governing the internal appeals process may be soon changing rather dramatically. As such, if your practice includes motor vehicle accident claims, this is an issue to which you should be paying attention! By way of background, let’s first look briefly at the present form of the regulations governing the internal appeals process.
N.J.A.C. 11:3-4.9(a)(1) currently only grants “authority” to the insurers to require medical providers to comply with all requirements of their Decision Point Review (“DPR”) plans as a condition of taking an assignment of benefits from their patient (your client). N.J.A.C. 11:3-4.7(c)(6), requires that each insurer’s DPR plan contain an internal appeals process, but does not mandate that the DPR plans require exhaustion of this appeals process as a prerequisite to arbitration. However, as you may or may not be aware, DOBI published a great many proposed changes to the PIP regulations in August 2011. Appeals have been filed with regard to these proposed changes, and arguments on the issues raised are currently pending before the courts. However, a substantial change has been proposed to the procedure outlined above, which may have some rather dramatic implications for your clients and your practice. In this regard, I want to high-light 4 key changes which are currently “proposed:
1. As part of DOBI’s purported desire to institute a uniform appeals process, the internal appeals mechanism is slated to become mandatory rather than permissive. Further, under the proposal, appeals concerning adverse “treatment” decisions must be filed within 30 days of the decision date! Arguably, the practical effect of this provision is to fashion a very short statute of limitations governing disputes over the denials of care by a PIP carrier. This is a very substantial issue, and one of which all P.I. practitioners should be acutely aware. Please note, the proposal deems that “medical necessity” decisions constitute “treatment” determinations;
2. If the 30 day deadline for filing a “treatment” appeal is missed, the proposal builds in one opportunity to seek an “additional decision point review” for the “treatment or test which was at issue”. While this essentially provides a “second bite” at the appeals apple, the potential for a very short filing deadline continues to loom large;
3. The new proposed regulations authorize both the insured and the provider to initiate the appeals process. This is significant, as appeals previously had to be filed by the provider; and,
4. The new proposed regulations state that if a PIP arbitration is ultimately filed based upon the denial of an internal appeal, the provider or insured will be limited to arguments and information which were submitted with the internal appeal.
So, what does all of this mean for you and your practice?
- First, be aware! While these changes are currently in the proposal stage, they may well be instituted and become a fact of life for your practice.
- Second, if implemented these changes will mandate that you, as the lawyer, will need to pay attention to the “DPR” notices which you regularly receive from your client’s PIP carriers. Where treatment has been denied, you should be prepared to take prompt action to protect your clients’ rights up to and possibly including filing for the internal appeal yourself.
- Third, any lawyer considering filing such an appeal must take care to cover all of the potential bases in the arguments raised, as the information in this appeal would govern and limit the arguments which may be raised in a subsequent arbitration.
- Finally, given each of the points outlined above, the best approach for any lawyer who lacks an intimate familiarity with the specifics of the world of PIP may well be to establish a referral relationship with an experienced PIP attorney and promptly refer any and all such disputes to them!
Now that the summer is over and autumn is upon us, it is important to remind everyone of an important safety issue: proper exterior lighting. As the sun sets earlier and earlier, you must remember to adjust the lights outside of your homes and businesses to protect yourselves and visitors. An errant garden hose leftover from those scorching summer days can turn into a major trip hazard for someone walking in the dark. The problem will be even worse when Daylight Saving Time ends and there is even less sunlight in the late afternoon hours. To eliminate this problem, change timers on any outside lights to ensure that there is proper lighting in all areas where people may be walking. A simple trip and fall on a sidewalk or driveway can have disastrous consequences.
While we are on the subject of pedestrian safety, it’s also important to eliminate any known hazards or dangerous conditions on your property that could threaten your safety or the safety of someone who visits your property. In a recent case, a woman was cleaning up following a private party at an Elks Lodge. The woman was walking up a staircase. As she came to the top of the stairwell, her foot caught on stair treading that was not properly secured to the landing. She tripped and fell down 17 hardwood steps, fracturing her skull and suffering lumbar disc herniations at two levels. Her medical expenses were more than $360,000. The woman and her husband sued the lodge, alleging that it failed to fix a known dangerous condition. The lawsuit also alleged that the stairway lacked a banister that extended over the landing, in violation of the applicable building code. The plaintiff had been carrying a basket in one hand and a carafe in the other when she fell, and, not surprisingly, the defense claimed that the plaintiff was carrying too many items at the time of the fall. The defense also claimed that the plaintiff should have been familiar with the conditions at the lodge because she was a member. The jury awarded the plaintiff $2.84 million, apportioning liability at 60% to the defendant and 40% to the plaintiff.
That is just one example of a severe injury that resulted from a fall due to a dangerous condition on someone’s property. Here are some tips to make your property safer for visitors.
Always make sure that doorways and staircases are well-light and free of debris. Keep rugs and carpets in good repair. If the carpet is bunching up or is tattered, replace it. If it’s raining, you may want to put a mat inside on tile, wood, or concrete floors so that visitors do not slip and fall on water that is tracked into your home or business. Make sure the mat stays down and does not move. Otherwise, someone could slip and fall as a result of the mat. Clean up any spills immediately. If you notice water dripping down from gutters or the roof, fix the problem so that the area below does not become slippery or icy. If there are any dangerous conditions on your property, put bright warning signs and cones around them and make sure to warn your guests. Just because you know about that step-down into your sunken living room doesn’t mean your guest will remember it while he’s carrying a plate of food and a glass of wine. Above all else, use common sense. If does not seem safe, it probably isn’t.
Here at Stark & Stark we represent people who are hurt in accidents every single day. We are here to help. If you or someone you know has been injured in a trip and fall, slip and fall, or some other type of accident, call me right away. I can help you understand your rights and assess whether you have a valid legal claim. Hopefully, you will never need us, but if you do, you can rest assured that we have the knowledge and experience to work hard for you and protect your rights.
A new study published in the September, 2014 edition of the journal “PLOS ONE”, offers further support for the existence of a connection between suffering a brain injury at a young age and a variety of serious problems, including behavioral problems. While studies have long noted a variety of long term consequences, including variations in how a person’s gender may impact upon the effects manifested from traumatic brain injury (TBI), this new study was particularly focused upon TBI in young persons in an effort to identify whether the person’s age, or a combination of age and gender, may impact the manifested effects of TBI.
The researchers examined data collected from over 9,000 students enrolled in grades 7-12 and focused on persons who had suffered a head injury which resulted in an overnight hospitalization or a period of unconsciousness of at least five minutes. Given the recent media attention to TBI lately and the apparent link between participation in contact sport and TBI, it is perhaps not surprising that the researchers found “team sports” as the most common reported cause of TBI amongst the study’s participants.
The results reportedly “indicate that adolescents with TBI are vulnerable to a range of psychological and behavioral harms that co-occur with their history of a TBI,” such as suicidal ideation, smoking, and drug use. Due to limitations on the study, including the fact that the data reviewed was limited to the participants’ self-report, the researchers were not able to gather meaningful data on the severity of the TBIs suffered by the study’s subjects. As such, the potential impact of TBI severity remains an open question with regard to the results of this particular study.
Each year millions of people are subjected to brain trauma suffered in accidents of varying kings, including car accidents, bicycle accidents and other incidents. TBI can produce devastating life impacts. Personality changes, impaired memory, violent outbursts, sleep disturbances, and other life changing consequences are frequently seen in the victims of TBI. If you or a loved one have been involved in an accident and have noticed such effects, we urge you to seek medical attention and the assistance of an attorney.
Medicare Set Aside trusts (“MSA”) have been a part of the worker’s compensation world for some time now. However, the issue of whether MSAs are required in the context of 3rd party liability claims remains a bit of an open question. The lack of clear rules on this subject has been a source of complaint for attorneys and insurance representatives alike. The terms of the governing statutes impose a duty to “protect Medicare’s interest” upon the parties, but does so in a very general manner. And, as one would expect, this has lead to varying interpretations of what must be done to “protect” or otherwise account for Medicare’s “interests” when the injured party is a Medicare beneficiary.
Medicare itself has not provided clear guidance on the subject. And, unfortunately, neither have the courts. Generally speaking, practitioners can only expect courts to make a determination as to whether an MSA is required in a liability case in a narrow range of circumstances. Most notably, where the parties agree that it is required, but have been unable to secure Medicare’s approval for their proposed MSA arrangement, or where the parties have reached a proposed settlement, but cannot agree on whether an MSA is required. New Jersey has issued one published opinion holding that the directives and regulations governing MSA’s in workers’ compensation claims are also applicable in the context of liability claims. See Hinsinger v. Showboat Atlantic City, 420 N.J. Super. 15, 18 A.3d 229 (Law Div. (Ocean County) 2011). However, as this decision was issued at the trial court level, it does not constitute binding precedent for other trial courts.
In 2012 and 2013 Medicare had issues a notice of proposed rulemaking on the subject which would have provided more clearly defined guidelines. However, due to the sweeping scope of the proposed rule it was challenged and, at this time, the word is that the proposed rule has been withdrawn. The withdrawal of the proposed rule, however, does not eliminate the statutory obligation to “protect Medicare’s interest”, or the penalties which may apply if one fails to do so. So, are MSAs required in 3rd party liability claims? The best answer which can be given at this time is “it depends”. For some time now, cautious practitioners have been fashioning MSAs, or at least utilizing 3rd party specialists conduct a review of the case to determine whether one is needed. Given the stiff penalties which Medicare has the right to impose, the best approach, at least for now, may well be to chart the cautious course if your client is a Medicare beneficiary or is likely to become eligible for Medicare in the next 3 years and there is a reasonable expectation of future, related medical expenses which Medicare may be called upon to pay.
Anyone who saw the Super Bowl last January witnessed the impact the crowd noise had on the players on the field. The ‘12th Man’, as the fans in Seattle are known, has become famous for the extreme noise levels. The problem is, exposure to this type of excessive noise can cause permanent hearing loss.
A recent article on www.huffingtonpost.com , “Seahawks Fans Seek Roar Record as Experts Warn of Health Risks”, discusses the hearing risk posed by exposure to noise levels, often reaching up to 132 decibels. The article cites experts who indicate that hearing loss is caused by both noise level and duration and that exposure to these noise levels could cause permanent hearing damage.
In addition, the National Acoustic Laboratories in Australia, found that the noise of fitness classes at the gym are almost as high as a jet engine. Finding that Circuit and Spin classes had noise levels as high as 94 decibels. This would impact the instructors and gym employees even more than the gym members, as the overall hours exposed is significantly higher.
To prove hearing loss from an occupational exposure, the loss must be to both ears. If you do not suffer enough of a loss in one ear, the hearing loss will not qualify for benefits in a New Jersey Workers’ Compensation claim. The standard is different for hearing loss caused by a single incident, such as a gunshot or explosion. Hearing loss for a specific accident can be to one ear, hearing loss from ongoing exposure needs to affect both ears.
Stadium workers, Gym employees, Factory workers, heavy equipment operators, firefighters and first responders, and many other occupations are exposed to high noise levels that could result in an Occupational Hearing Loss. If you feel that you’ve suffered a work related hearing loss, it is important to know that you only have 2 years from the last date of exposure to file a workers’ compensation claim. If you’ve undergone audiometric testing that shows a hearing loss and you’ve been exposed to high noise levels at work, you may very well have a viable workers’ compensation claim.