FMCSA Considers Raising Minimum Levels of Insurance for Motor Carriers

Posted in Trucking Accidents

The Federal Motor Carrier Safety Administration (FMCSA) announced that it is considering a rule making that will increase the minimum levels of financial responsibility for motor carriers, including liability coverage for bodily injury and property damage, establishing financial responsibility requirements with passenger carrier brokers and to implement financial responsibility requirements for brokers and freight forwarders, as well as revising existing rules concerning self-insurance and trip insurance.  The FMCSA is seeking public comments on these topics.

The Federal Government has long required motor carriers, brokers and freight forwarders to maintain certain levels of financial responsibility.  Presently, for-hire interstate general freight carriers are required to carry a minimum of $750,000.  This minimum level of financial responsibility was established in 1980 with the passage of the Motor Carrier Act of 1980.  That minimum level has not been increased over the past 34 years.

It is certainly time that companies that engage in interstate transportation be required to be insured for at least $10 million as was recommended by the Pacific Institute for Research and Evaluation and that the minimum level be indexed for inflation and productivity growth in the same manner that DOT indexes its value of statistical life for regulatory purposes.  There is no reason why companies that put tractor trailers on our highways should not be sufficiently insured to pay claims for damages they cause.

Click here for a link to the FMSCA notice.

Do Construction Workers Have a Meaningful Choice- New Jersey Supreme Court Hears Argument

Posted in Construction Accidents

Construction workers on a job site have no meaningful choice when told by their employers to perform an assigned task.  When a construction worker is injured, while performing his assigned task, should the defense of comparative negligence be a defense in a lawsuit filed by the injured employee against the general contractor?  That is the issue that was argued before the New Jersey Supreme Court last month.

I had the honor and privilege of arguing the case on behalf of the New Jersey Association for Justice as amicus counsel (friend of the court).

Fernandes v. Dar is a personal injury case in which the plaintiff, a plumber, was injured when the sanitary sewer line trench he was excavating collapsed around him.  The trial court refused to submit the issue of the plaintiff’s own comparative negligence to the jury, finding that the defendant failed to introduce any evidence of culpable conduct on behalf of the plaintiff.  The jury returned a verdict on behalf of the plaintiff.

Defendant took an appeal asserting that the trial court committed error when it refused to charge the jury on plaintiff’s comparative negligence and determined, as a matter of law that the plaintiff was not at all at fault.  On appeal, the Appellate Division affirmed, finding that plaintiff did not voluntarily an unreasonably encounter a known risk, a standard which is higher than ordinary negligence.

The New Jersey Supreme Court granted certification to determine the issue as to what standard should apply in evaluating an injured construction worker’s conduct.  I was asked, on behalf of the New Jersey Association for Justice, to file a brief and argue on behalf of its members and future New Jersey construction workers who might be injured on the work site.  It was NJAJ’s position that a construction worker, injured on the job while performing his assigned tasks, had no meaningful choice, i.e., an employee either had to do what he was told to do or faced being fired.  It was NJAJ’s position that in such circumstances, as a matter of law, a construction worker injured on his job, performing his assigned tasks, could not be comparatively negligent.

We all look forward to the Supreme Court’s ultimate decision in the case.

Is Your Car Part of the Takata Airbag Recall?

Posted in Injury Law, Motor Vehicle Accidents

By now you’ve likely heard of the massive recall of defective airbag inflaters manufactured by the Japanese company “Takata”.  The recall involves many automakers from Japan, Europe and the United States, including, but not limited to:  BMW, Chrysler, Ford, Honda, Mazda, Nissan and Toyota.  Reports indicate that the inflators can explode under certain conditions, sending shrapnel flying in the passenger cabin of the car.  A hazard like this is nothing to mess around with!

This recall is not limited to new vehicles, but actually covers vehicles dating to the early 2000’s.  How can you find out if your car is part of the recall?  The National Highway Transportation Safety Administration (NHTSA) has issued a statement which you can use to find the answer which can be accessed here.

As this data is reportedly based on reports made by the manufacturers to date, it would also be advisable for anyone with a car manufactured by BMW, Chrysler, Ford, Honda, Mazda, Nissan and Toyota to contact a dealer to verify whether their car is part of the recall.  If you or a loved one has been injured in an accident involving one of these vehicles, contact Stark & Stark today for your free consultation.

Why We Need More Corporate Regulations and Less Tort Reform

Posted in Motor Vehicle Accidents, Product Liability, Wrongful Death

Ten years ago, Candace Anderson, a 21 year old young woman, was convicted of criminal negligent homicide as a result of a one car motor vehicle crash. Ms. Anderson lost control of her 2004 GM Saturn Ion. Her fiancé, a front seat passenger, was killed in the crash when his passenger side air bag failed to deploy.  Since that time, Candace Anderson, who was sentenced to a $10,000 fine, 260 hours of community service, counseling and five years of probation, has been racked with guilt over the death of her fiancé

This week, Ms. Anderson, was cleared of any criminal responsibility for the crash following the admission by General Motors that her fiancé’s death was due to a defective ignition switch in the Saturn Ion.

Most distressing, is that five months before Ms. Anderson plead guilty, General Motors conducted its internal review of the crash and determined that the crash was due not to the fault of Ms. Anderson, but due to the defective ignition switch.  General Motors never advised Ms. Anderson, her fiancé‘s estate or the Court of its finding. In 2007, GM wrote to the National Highway Safety Administration, falsely stating that it had not accessed the cause of the crash.

GM is not alone. Toyota spent years wrongly blaming sudden acceleration events on drivers. See also the recent stories about Takata and Honda. This is why they want less regulation and more tort reform.  Sort of like terrorists arguing for less security at airports. Bad corporations should and need to be held accountable for their bad corporate choices.

More on this story can be found here and on Facebook here.

New Jersey Supreme Court Hears Argument on Two Bad Faith Cases in Uninsured/ Underinsured Motorist Cases

Posted in Injury Law, Motor Vehicle Accidents

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 Quoted in Zoloft Birth Defects Article

Posted in News & Events

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.

New Jersey Association for Justice – 2014 Meadowlands Seminar

Posted in News & Events

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.

What Do Personal Injury Attorneys Do?

Posted in Birth Injuries, Construction Accidents, Injury Law, Medical Malpractice, Motor Vehicle Accidents, Motorcycle Injury, Product Liability, Trucking Accidents, Workers' Compensation, Wrongful Death

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.

 

School Bus Safety

Posted in Community, Injury Law

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.

Personal Injury Practice Tip Beware: The “Internal Appeals” Process For PIP May Be Changing

Posted in Injury Law, Legal Updates

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 practiceIn 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!