As mentioned in my previous post, I am amazed at the insurance coverages my clients never even knew existed. This challenge goes out to all insurance salesmen to better inform your clients of  the coverages and give them examples of why they need it. I know they probably don’t want to pay the extra money and you don’t get much additional commission but it’s your job to explain why $50-$100 extra a year can save them $1,000-$25,000.  I have these three things and so should you:

  1. Personal Injury Protection (P.I.P) and/or Medical Payments (Medpay) coverage- this covers you and all the passengers in your automobile regardless of fault or liability- if you don’t have health insurance this is a must;
  2. Underinsurance (U.I.M) coverage-exactly what it sounds like, except easier to understand when I explained that it helps cover you and your passengers or family when someone injures them that does not have enough insurance or assets to go after; and
  3. GAP Coverage & Renters Insurance-both of these coverages take care of your possessions when they are damaged. The first being your automobile that is over financed and not worth what you owe on it. The second for your possessions while renting someone else’s home or apartment.

I can not help you if you are not helping yourself by taking advantage of the insurance coverage that actually benefits you and not someone else. As much as I comment about how I hate insurance companies, they are a necessary evil. If you are able to play the game of insurance successfully you can and will come out on top.

 

Previous or Related Posts I Have Written on these Coverages:

 

I had a client come in today with three young kids all under the age of 10 and all boys. They were tough to contain for her much less for my soon-to-be-married and "kidless" self. As I was informing my client’s mother, who owned the car, on how she had been swindled out of depreciation from State Farm with her property settlement one of the boys yelled out in a melodic manner:

 "Nationwide is on your side…"

I quickly turned towards him with the indignation of an elementary teacher, ruler in hand and asked who taught him such lies and slander? All in the room looked perplexed but none more than him. I quickly indicated to him that he had been lied to and should never repeat such blasphemy. As if on cue, all three boys chimed in: "Nationwide is on your side…" 

At that point I realized what I was up against and what all Americans must face, mind numbing advertising that showers us night and day through all mediums of media.  Since the more money one entity or individual has the more exposure they will be able to give their flashy, fictional, and frustrating jingle or flat out lies……Yet at the same time I realized how effective such a childish and simplistically thought out plan can so easily massage and manipulate mainstream society.

Try not to let those insurance company jingles persuade you too much during this massive blitz of corporate marketing and advertising to get us consumers already in the mindset of spending to sell ourselves short of the true coverage and protection we need.  Be on the lookout for "Trey’s Top Three" where I pick out:

  1. the top three insurance companies that treat injured parties fairly;
  2. the top three things you need to add or include with your insurance; and
  3. the top three insurance horror stories from this year.

 

To help get your mind off that previous jingle, think about this:

The only hands that come from Allstate are wrapped around your throat.

Or maybe since I have renamed one of our local adjusters "Low Ball":

Nationwide will chap your hide.

Don’t worry, last one:

Like a drunk driver, State Farm doesn’t care.

This analogy came about through my initial consultations with new clients and their constant reference to the at fault party’s insurance company making statements similar to this:

Well the insurance company adjuster for the negligent party said I could not do this or go get treatment for my injuries because they would not pay.

The game I refer to as the "Insurance Game" befuddles many but the dynamics are the same. You have one side playing offense and another side playing defense.  Why are you going to listen to a representative of an insurance company that eventually will have to pay you money based upon many factors but the largest factor being the amount of medical treatment and bills you have incurred since the negligent act that caused your injury?

Instead of seeking out a free initial consultation with a personal injury attorney you will listen to the advice of the negligent party’s insurance company that is trying to minimize the amount of money paid out on your claim. Makes no sense. I don’t care that I am jaded by being a personal injury attorney but I follow my own advice when it comes to real estate closings, I know nothing about. I seek assistance from a real estate attorney. I don’t trust that the landowner I am purchasing from will take care of my best interest. I trust the attorney I am paying will protect my interest.

If you are playing a game against the opposing team, would you trust the advice of the opposing coach on how to best beat them? Sure the insurance company adjuster will be very kind and pleasant on the phone initially. However, their intentions are not to provide you with the best result but for their result to be beneficial for their employer, the insurance company.

Remember, or re-read, Aesop’s fable about the Horse and Groom:

A GROOM used to spend whole days in curry-combing and rubbing down his Horse, but at the same time stole his oats, and sold them for his own profit. "Alas!" said the Horse, "if you really wish me to be in good condition, you should groom me less, and feed me more."

Don’t let the kind words and warm reassurances from the at fault insurance company "groom" you into believing your health, wealth, and welfare are at the forefront of their minds. Rather try and gain the substance that will get you better and protect you down the road.

 

Allstate, the evil empire, is the worst insurance company anyone could have for automobile insurance coverage. They are even worse when you are injured or harmed by one of their negligent insureds traveling on the roadways in South Carolina.  They have spent good money on formulating software that helps minimize the human interaction in claims adjusting and at the same time limit the monetary payout.

In comes New York State Insurance Superintendent James Wrynn, leading four other states into an investigation into Allstate’s Colossus software. As reported by the New York State Insurance Department:

 “Allstate has agreed to implement procedures to ensure transparency and fairness for consumers who have bodily injury claims,” Wrynn said. “The new processes ensure that claims will be handled consistently in different regions of the country, and consumers will have the right to get the information they need in order to understand how Allstate evaluates their claims and make sure they are fairly treated.”

More importantly Allstate has to modify their claims handling process in the following manner:

 

  • Providing notice to claimants that the Colossus software program may be used in the adjustment of their bodily injury claims;
  • Enhancing its management oversight of Colossus to ensure that it adheres to established criteria and a uniform methodology in selecting claims to be used to “tune” or modify the software to reflect recently settled claims;
  • Strengthening its internal auditing of Colossus and bodily injury claims handling to ensure adherence to written guidelines and procedures;
  • Consolidating its bodily injury claims handling practices into a single claims handling manual; and
  • Not establishing a policy or rule requiring claims adjusters to settle bodily injury claims solely on the value recommended by Colossus and not providing incentives for claims adjusters to settle claims at or near the value recommended by Colossus.

You can see the full article entitled:

 

Allstate Agrees to $10 Million Regulatory Settlement Over Bodily Injury Claims Handling Processes

 

To read more articles about Allstate, please see:

The rash of moped fatalities, hit and runs, and just plain moped accidents have been on the rise this year in South Carolina. The Greenville News brought focus on this issue in their article, "Moped Deaths Raise Safety Concerns." I don’t think I realized how flexible South Carolina laws are on moped drivers:

Drivers with suspended licenses can ride mopeds for up to six months before they have to get a moped license. The minimum age for driving a moped is 14, a year younger than in Georgia and two years younger than in North Carolina………only moped drivers under 21 must wear helmets under South Carolina law.

None of the moped drivers involved in the fatal accidents wore helmets and all were under 21. I guess that goes towards the old saying that, "the only good laws are those that are enforced."

Another interesting point is that all these moped drivers are not required by law to carry liability insurance on their mopeds.  Although they havent been the ones causing the accidents there are little to no options if they were to cause accidents or were involved in accidents with vehicles that have no insurance.

My fiancee and I are avid fans of the History Channel’s –"Pawn Stars".  The more I watch the reality show about people bringing in unique, bizarre, and rare things they want to sell or pawn the more applications I see in my day to day activities as a plaintiff’s lawyer in South Carolina. 

Negotiating 101 may be taught at law schools but it wasn’t taught at mine. There were classes about the history of law and other BS classes to help you think, read, and write but nothing to integrate the application of the present situation that wonderful history of law has brought upon us.

In comes a better application than my clients references of "Law & Order"— "Pawn Stars". Law students, new lawyers, and inexperienced plaintiff’s lawyers save yourself some time and money and just watch the show. You can learn a lot of things about negotiating with evil insurance companies by watching the interaction between the pawn store employees and the customers:

  1. Never start at the price you eventually want to get. You can always go down in a negotiation but you seldom can go up and expect talks to continue.
  2. Research your case before you go try and sell it. If you don’t know what you have, how can you know what it is worth?
  3. If neither side knows the true value of the case, get experts involved. Experts can help you both come to a conclusion about the value. (Although when both sides get one it is almost guaranteed they will say opposite things). 
  4. Body language is important in face to face negotiations. The term "poker face" was popular for a reason. (Even before Lady Gaga).
  5. Know when to walk away from the bargaining table. Sometimes you are not going to get the price you want or even reach a compromise. It’s alright to leave the table and seek greener pastures or avenues.

 

Pawn Stars Haggling 101

 

One thing I try and avoid is conversations over politics and religion. I am not registered to any political parties and I have voted for Republicans and Democrats in the past few elections. That being said, I am a proponent of democracy and having the right to vote.

Please make sure you take advantage of the rights fought so hard for you and your family by ensuring you are registered to vote in your specific county by October 2, 2010. South Carolina has a website that is so easy to navigate and verify your registration in less than a minute: http://scvotes.org/.

As the Anderson Independent pointed out in it’s article,"Voter Registration Deadline is Oct. 2", It’s important to remember that you will need to register to vote if you have moved from one county to another (need to register in the new county).

If you are not registered, there are several, quick and easy solutions that only require a few minutes of your time. You can also read over proposed 2010 State Constitutional Amendments.

South Carolina General Elections are Tuesday, November 2, 2010.  Read up on the candidates and vote.

 

"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."    Thomas Jefferson

 

 

South Carolina hospitals are addressing an issue that may save hundreds of lives by simply looking over a checklist after surgery. Much like a pilot does prior to take-off, surgeons would have a checklist devised by an international patient safety guru, Dr. Atul Gawande. It appears Dr. Gawande has even written a book entitled, "The Checklist Manifesto". As Malcolm Gladwell comments about the book:

Gawande begins by making a distinction between errors of ignorance (mistakes we make because we don’t know enough), and errors of ineptitude (mistakes we made because we don’t make proper use of what we know). Failure in the modern world, he writes, is really about the second of these errors, and he walks us through a series of examples from medicine showing how the routine tasks of surgeons have now become so incredibly complicated that mistakes of one kind or another are virtually inevitable: it’s just too easy for an otherwise competent doctor to miss a step, or forget to ask a key question or, in the stress and pressure of the moment, to fail to plan properly for every eventuality. Gawande then visits with pilots and the people who build skyscrapers and comes back with a solution. Experts need checklists–literally–written guides that walk them through the key steps in any complex procedure.

Liv Osby of The Greenville News wrote an article on Sunday, September 19, entitled "List Could Put Check on Surgery Deaths".  In her article it was interesting to read phrases like "serious surgery complications", "we’re doing the right thing for the patient", and "this could save many thousands of people from harm".  All due to a simple checklist of 19 functions, including marking the area to be operated, verifying the patient’s identity, and discussing any special risks. 

This is not a new concept as a very similar article on the same subject was written by the The Washington Post entitled "Surgery Checklist Lowers Death Rate",  back in January of 2009. However, I was happy to not hear anything about Medical Tort Reform and this being a result of trial lawyers but a simple article indicating accidents happen in the medical field and they happen at a high rate. As the article indicates:

..every avoided complication saves $13,000.00 on average, the checklist would also cut annual health care costs statewide by more than $50 million….

Another important point made by Dr. Gawande, is that every professional could benefit from a checklist of the simplest tasks that would avoid a great deal of trouble down the road.

 

The Anderson Independent Mail reported that a young girl was struck and injured by a vehicle yesterday in Anderson County.  Reportedly, there was a school bus in the area and she darted out across the road.

A pedestrian, or any person on foot, has duties just like those driving motor vehicles to be responsible, however, sometimes the higher duty and responsibility remains with the driver of the motor vehicle to be more alert and observant.

South Carolina Drivers’ Manual is where we all started and had to learn the "rules of the road" before being granted permission to get our license. After the introduction, the manual goes into "General Information", more specifically the subsection entitled, "Sharing the Road" states:

It is your responsibility as a driver to be on the lookout and to take every precaution possible to not injure a person on foot. If you see a vehicle, pedestrian or children near the road, you should slow down and be prepared to stop. (General Information p.45)

The South Carolina Code of Laws sets forth a few reminders for all of us drivers on the roadways as it pertains to pedestrians:

  1. SECTION 56-5-3230. Drivers to exercise due care.

    Notwithstanding other provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and shall give an audible signal when necessary and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person.

  2. SECTION 56-5-1520. General rules as to maximum speed limits; lower speeds may be required.

    (A) A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Speed must be so controlled to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care.

    (F) The driver of a vehicle shall drive, consistent with the requirements of subsection (A), at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, approaching a hillcrest, when traveling upon any narrow bridge, narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.

South Carolina case law follows in line with the before mentioned rules in stating:

  • One operating a motor vehicle on a public highway owes an urgent duty to keep a proper lookout and to keep the vehicle under proper control.  Yaun v. Baldridge, 134 S.E.2d 248, 251 (S.C.1964).
  • Negligence is established as a matter of law if the only inference is that either the driver did not look or did so in such a careless fashion as not to see what was in plain view. Williams v. Davis, 243 S.C. 524, 134 S.E.2d 760 (1964).

No one may truly know what happened during the incident with the young girl and the driver may have used ever caution and observation available to him. However, this is a time to remind all of us who get behind the wheel to just remain alert and vigilant to our surroundings.

 

I am a lawyer not a doctor. Doctors are medical professionals trying to help people get better by diagnosing, treating, and preventing. When we step outside our profession and into another professional arena we know very little about, it can be confusing. No matter how much reality television we watch, it may not carry over to the realities we live in.

In the short time I have been an attorney, it never ceases to make me laugh when I go to a doctor’s deposition. We, as lawyers, have to ask certain questions in certain ways to meet legal thresholds and adhere to the prevailing rules of evidence, which makes those questions sound verbose, obnoxious, and confusing.

  1. "Doctor  ______, is it your opinion to a reasonable degree of medical certainty that it is more probable than not, that my client’s disc herniation were caused/aggravated/ and/or made worse from the motor vehicle collision/slip and fall/dog bite?"
  2. "Doctor ______, based on your education, observations, and medical treatment of my client, was it medically necessary to send them for physical therapy/diagnostic testing/pain management as a result of the motor vehicle collision/slip and fall/dog bite?"
  3. "Doctor ______, do you have an opinion to a reasonable degree of medical certainty as to the permanent impairments my client would be assigned under the AMA guidelines?"

It’s important for medical professionals to understand that Plaintiffs have the burden of proving their case by the preponderance of the evidence. The most common example is the tipping of the scales of justice ever so slightly to provide an imbalance that would warrant the "preponderance" part, "more likely than not". (David Swanner of South Carolina Trial Law Blog gives several good examples).

Therefore, medical professionals don’t have to know 100% one way or the other. They just have to give an opinion (based on a reasonable degree of medical certainty) whether an injury or aggravation of a pre-existing injury is "more likely than not"/ "more than a 50% chance"/ "ever so slightly tips the scales" was caused or directly affected by the trauma.

Plus, know what you charge for your office visits. You are a professional and are running a business. In the 100 or more medical depositions that I have taken, not one medical professional has been able to tell me what they charge per office visit. That could be one explanation in the health insurance and medical professional struggle now. How can you talk about lost profits and exorbitant prices when you have no clue about money, fees, or service costs directly related to services rendered?

This is the typical response cut and pasted directly from an recent examination of my client’s treating physician’s deposition:

I can’t make an assessment about causation.  When I see a patient or take care of patients, I’m not really thinking about, you know, is this going to go to a legal situation. I’m mostly concerned about the patients and their well-being so I just go what they tell me, by the history.  So the answer to your question is:  I don’t know.  I can’t say with 100 percent certainty that the motor vehicle accident caused the herniated disk.

I asked the questions previously discussed. Do you have an opinion? Not can you tell me for certain. Plus, if you were truly concerned for the patient, you would also be concerned about the financial stress and misery of undergoing medical treatment and being personally responsible for the medical services you have rendered to them unless you agree that someone else affected their pre-existing injury or caused new injuries.