Legal miscues: How to avoid the pitfalls of insurance claims

September 1, 2016 by Jay Stefani Leave a Comment

You’ve got enough to worry about. Then you find yourself in a car crash. That alone is frustrating. But wait, there’s more.

You can count on two things coming your way after a crash: 1) a forthcoming insurance claim and 2) a call from the other driver’s insurance company.

The first part isn’t necessarily bad. At the end of the day, if the other driver is at fault, his or her insurance is the one that will end up footing the bill for the damages. How to handle the phone call from the other driver’s insurance company, however, is another matter and it can sometimes lead to unforeseen mistakes that could cost you later on.

After years of handling injury cases, I usually have a good sense of how my client’s telephone conversations with the insurance adjustor will play out. Here’s a typical scenario: The adjustor is nice, offering well wishes, asking if you’re feeling okay. He or she often returns calls promptly and assures you that the insurance company wants to “make it right” – sometimes even offering to take care of your medical bills.

Unfortunately, once it becomes clear you’re actually injured and need substantial medical care, the adjustor suddenly stops with the pleasantries; it’s not uncommon for the adjustor to stop returning your calls, which can be the first sign that something is amiss. So how should you handle conversations with those adjustors? Here are some familiar-sounding tips.

You have the right to remain silent

You have an obligation to talk to your own auto insurance company after a car crash. You do not have to talk to the other insurance company. Even the friendliest of adjustors has a job to do, and that’s to protect the other driver and the insurance company. An adjustor’s goal is to gather as much information as possible. Instead of getting into a long conversation, consider this: ask for the adjustor’s name and contact information, get the claim number, and give your basic information (name, address, and your auto insurance information). That leads to the next step.

You have the right to an attorney

Before any decisions are made, before a recorded statement is given, and certainly before you sign anything, speak with an experienced injury attorney. If you feel uncomfortable with the adjustor, or feel pressured, tell the adjustor you’d like to speak with an attorney before making a decision. Don’t be surprised if the adjustor changes his/her attitude at this point. That’s okay. You’re not looking to make friends in these situations; you’re looking to protect yourself from being taken advantage of. The insurance company has teams of adjustors and corporate lawyers on its side – you deserve to have an attorney on your side, too.

Anything you say can – and will – be used against you

Adjustors aren’t “bad people,” but they are people with a job to do. They receive extensive training, specifically from corporate insurance lawyers, on ways to get information. One of the easiest ways to get information is to be nice. Once an adjustor gets you on the phone, it’s all fair game – and if it’s not being recorded, the adjustor is certainly keeping detailed notes.

It’s common for the first conversation to be about the crash. A simple question like, “how did it happen?” is meant to get you talking. Bear in mind that the adjustor is looking for anything that he/she can use against you later. For example, we had a client mention she had her kids in the car when the accident occurred. Later in the case, the insurance company’s lawyer argued how the kids distracted our client, even though she was stopped at a red light when she was rear-ended by another driver who was on a cell phone.

Later conversations turn to how you’re feeling, which is meant to put you at ease so you’ll say you’re doing “fine” (because the adjustors know people often have a tendency to downplay their own pain). Later on, the insurance company and its lawyers will use that to show that you weren’t injured. Or if you say physical therapy is making you feel “better,” the insurance company spins it to mean you’re feeling “100% better,” as opposed to “better than before, but still not great.”

Be nice

No, this tip isn’t from the Miranda warning, but it’s equally important. Not all insurance companies have bad intentions. As I said, adjustors are doing a job. You may choose to say nothing, but that doesn’t mean you have to be rude. Be courteous. Be cordial. After you give your basic information, politely end the phone conversation. You may not need an attorney for your case, but at the very least, you should speak with one before making any decisions.

The U.S. trucking industry’s safety standards are fading, not improving

July 6, 2016 by Jay Stefani Leave a Comment

Cutting corners will ultimately cost more lives

As a trial lawyer, I’ve seen too many cases where the wellbeing of others is compromised for the sake of doing business.

That’s especially true when it comes to the U.S. trucking industry, which faces numerous lawsuits every year related to negligence, including a systemic failure to shell out for basic safety standards.

What’s ironic is that this penny-pinching approach is the same approach costing the trucking industry millions of dollars in personal injury and wrongful death claims. The industry apparently would rather accept the risk of pricey lawsuits than pay for marginal improvements, while other countries (like Canada and the U.K.) pass safer laws and enact better proposals to protect their citizens—including truck drivers—from preventable disasters. For those of us living in the U.S., it’s becoming harder to ignore how fast our peers have outpaced us.

Dating back to 2005, the U.S. trucking industry has favored a market-driven model to promote commerce. That’s in stark contrast to the Europeans, who have gone as far as to implement speed detection systems to keep drivers honest. Perhaps more striking is Europe, unlike the U.S., tries to promote a healthy working environment (better hours, less emphasis on associating a paycheck with the number of hours spent on the road), rather than the pressures of a corporate time crunch.

Now let’s look at the U.S.: The trucking industry has flirted with the idea of lowering restrictions (like allowing 18-year olds to drive big-rigs within state borders and increasing weight limits for large trucks) or endorsed modest safety proposals that move up the bureaucratic chain of command at a snail’s pace. One of those things is installing side underride guard rails, which have been a point of contention between the trucking lobby and safety advocates for years.

Writer Paul Feldman of FairWarning explored this in an article titled “Critics Say Underride Fix Will Do Little to Curb Deadly Hazard.” Feldman called side underride crashes “among the most horrific collisions on the road,” yet any effort to curb those collisions has been overlooked or ignored domestically.

Feldman went on to explain how a new proposal for underride guards, recommended by the National Highway Traffic Safety Administration, essentially replaces a 20-year-old standard with a 10-year-old Canadian standard. The NHTSA justified its reasoning by citing low-loss-of-life in relation to the cost of outfitting or retrofitting trucks with side underride guards.

That correlation rings like a shallow justification of Reagan era policies, as Feldman notes, that favors economic benefits over the value of safety. Try explaining that to a family that’s lost a child, or someone with terminal injuries. We need to get ahead of the curve, not just keep up.

I sit on the American Association for Justice Side Underride Guard Task Force. I recently returned from a trip to England as part of an investigation into the safety practices of the U.K trucking industry. My colleagues and I were shocked to learn how far we have to go before we catch up to our British counterparts. Some of those things include a comprehensive certification process for underride guards, additional training for drivers, outfitting old trucks with new safety features, and a national awards program/incentives that encourages safe driving.

All of this is low-hanging fruit. We need to start picking before it goes bad.

When it comes to wearing bike helmets, there is no debate

June 16, 2016 by Jay Stefani Leave a Comment

Do they look great? No. Do they save lives. Yes

I’ll confess: my profession skews my view of the world. We don’t handle cases involving people who safely got from point A to point B. We don’t represent clients who went for an incident-free bike ride. We help people whose lives have been changed—for the worse—because someone else was careless or reckless. It’s that view that colored my reading of a recent article in the Chicago Reader.

“Promote helmets or prevent crashes? Some advocates say it’s time to shift,” by John Greenfield, looks at the debate amongst cycling advocates on whether promoting bike helmets deters cycling. Greenfield spoke with a number of biking supporters to discuss varying approaches to bike helmet usage. Some of those people believe that pushing others to wear helmets is having a depressing effect on potential riders—they either don’t like helmets or they feel they’re unnecessary. Others take the approach that helmets save lives and minimize injuries. Frankly, I think it’s a bit of a silly—and reckless—argument.

The folks against strict helmet usage allege that slow, urban cycling can be “quite safe” without a helmet. One opponent, a consultant from Denmark, argues helmets send a message that cycling is dangerous, and it can discourage others from taking part. Recent studies have concluded that there might not be as large of a difference in terms of the severity of head injuries—noting helmets might only reduce the risk of a head injury by 25-55 percent. If you were given a chance to reduce the risk of cancer by 25-55 percent, wouldn’t you gladly take it?

The problem—the naïve and dangerous problem—with this rationale is it assumes the cyclist is the sole person responsible for crashes. If you’re riding slowly and safely, you have little to worry about. By that logic, if you’re just driving in your neighborhood, why bother wearing a seatbelt? The harsh reality is you don’t have any control over what other drivers are doing. In a car, you’re at least enveloped by a highly engineered, crumple-zone, steel wrap. In a bike, it’s you—and hopefully your helmet.

I lived—and cycled—in Chicago for over a decade. Not once did I consider riding without a helmet. Even riding at a slow pace (5-10 mph), you’re constantly aware that someone in a parked car could open a door in the blink of an eye. Your options are to veer into traffic (which is coming from behind you) or hit the door. Wouldn’t you want to be wearing a helmet?

A bicyclist’s own speed has no bearing on a truck blowing a stop sign or a red light. No matter how safe a bike rider is, how alert he or she may be, it won’t prevent a random car quickly pulling out of an alley or driveway. The point of wearing a helmet—the same as wearing a seatbelt in the car—is you’re taking a simple precaution to protect against someone else’s carelessness.

Too many times I’ve seen the aftermath of a bike, car, or truck crash. Crashes—especially bike crashes—happen in an instant. The speed of the cyclist, the alertness of the rider, and the setting of the crash have little effect on the outcome. We don’t always have control over our surroundings, which is why we control what we can. Wearing a helmet is something we can control, and it may save your life.

Why a Chicago trucking lawyer went to England

June 3, 2016 by Jay Stefani Leave a Comment

Jay_England — Jay at the Commercial Vehicle Show in Birmingham, England

When it comes to truck safety, the U.S. has some catching up to do

I recently went to Birmingham, England, with a small group of fellow trucking lawyers from around the country to visit the Commercial Vehicle Show. As members of the American Association for Justice’s Trucking Litigation Group’s Side Guard Task Force, our goal was to see how the U.K. approached trucking safety. It being my first trip to the U.K., I was enthralled by the country. One peculiarity that caught my attention was the frequency of cover songs—a singer’s or band’s interpretation of someone else’s song—being played in restaurants. In a way, it was a metaphor for my take on England—very familiar, but it was the nuances and differences from what I was used to that made it more interesting.

The language is the same, but there’s the accent, and certain words have different meanings. Some of it adds a layer of charm (I prefer the automated voice asking me to “alight” the train as opposed to “exiting”), some of it requires an acclimation period (fries aren’t fries, they’re chips, but chips are actually crisps). Good service is good service, but there’s something particularly charming when they bring your coffee in a small porcelain kettle. Mostly, the various cultural spins on the familiar were enjoyable, and have me longing for a return trip. Unfortunately, the differences in how the British handle trucking and trucking safety left me frustrated.

As I mentioned, we were tasked with learning ways to cut down on the number of truck crashes back home. My specific subcommittee deals with preventing pedestrian and bicyclist injuries and deaths caused when trucks literally run them over. What makes these incidents particularly tragic is how easily preventable they are. As trucking lawyers, we know that driver behavior (driving dangerously) is often a primary cause, but the CV Show revealed the significant gap between the U.K. and the U.S. in terms of safety equipment that could prevent or minimize these incidents.

After a spate of trucks killed pedestrians and cyclists, the U.K. began implementing safety requirements for trucks. Most common were increased mirrors and side under ride guards. The mirrors eliminate dangerous blind spots for truckers when making left turns (right turns here). In the event a truck driver still makes a turn into someone, the side under ride guards literally deflect pedestrians or cyclists away from the truck, as opposed to trapping them underneath the turning truck.

But those incredibly modest upgrades are not enough. Vendors throughout the CV Show touted the benefits of front, side, and rear blind spot sensors and cameras. The cameras and sensors visually and audibly alert the truck driver that something or someone is near the truck. This isn’t pie-in-the-sky, far-off technology. Most of us are familiar with it—I have blind spot sensors and a backup camera in one of my cars, and the U.S. will begin requiring backup cameras on all vehicles in a couple years. If we know it’s important enough to require in a typical two-ton car, why aren’t we demanding it for 30-ton tractor-trailers?

There is cause for optimism, though. Some cities, such as Boston, have enacted local laws requiring trucks to be equipped with side guards. We should all be pushing our hometowns and cities to pass similar legislation. Unlike the sensors, mirrors, and cameras, side guards won’t prevent trucks from hitting people. They are, however, very effective at minimizing injuries – or turning would-be deaths into survivable injuries.

The U.K.—both citizens and the trucking industry itself—decided enough was enough when it came to preventable injuries and deaths caused by careless truck drivers. It took action by implanting common sense changes and rules aimed at reducing trucking tragedies. Moreover, the British trucking industry—truck companies, equipment vendors, and even construction companies—not only got on board with the program, but is now driving safety advancements. One of the common phrases I heard from the salespeople at the CV Show was “market-driven.” They understand the myriad benefits of reducing truck vs. pedestrian/bicyclist crashes.

Cultural differences are one of the great reasons to travel. Quirks and customs help define nationalities and ethnicities in wonderful ways. But, like the cover songs I heard throughout my trip, finding the similarities bring comfort via commonality. I missed many of the little English traits when I returned home, but missing them just makes me want to head back for another visit. The glaring exception was the morning after I got home when I saw a truck pass by without side guards. Safety shouldn’t be a “quirk” of our across-the-pond truckers.

What happens when federal regulators give commercial drivers the benefit of the doubt?

April 14, 2016 by Jay Stefani Leave a Comment

Allowing drivers to self-report their own medical history is a flawed concept and part of a broken system

CBS News has completed an investigation into self-reporting loopholes that are allowing drivers with medical conditions to circumvent systems designed to keep them off congested highways. The question CBS is seemingly posing: Is the system working in the best interests of safety?

The news network tracked the story of Ruthie Allen, a passenger on a Greyhound bus traveling on the Ohio interstate. The bus veered off the highway, rolled and crashed. Allen sustained a gruesome leg injury. After the crash, police discovered that the driver had been told by a medical examiner to get a sleep apnea exam. He failed to do so. He also failed to disclose the information on federal documents that helped him land the job. Sleep apnea is one of the many conditions that would have disqualified him from operating the bus.

Now in the aftermath, Allen is left with a chronic injury and a long road to recovery.

A commercial driver’s eligibility is determined by filling out a questionnaire, which is the basis for a physical performed by a Department of Transportation-certified medical professional. The examiner can range from a chiropractor to an entomologist to a sleep apnea specialist. As of now, the questionnaire relies on drivers to disclose a comprehensive account of their medical history.

But it’s what many specialists aren’t finding that led CBS to do some digging. The network ultimately uncovered that many drivers fail to disclose dangerous medical conditions that would, according to federal guidelines, prevent them from operating a commercial vehicle. Should it come as a surprise that drivers are unwilling to share details that would end up costing them a job?

Self-reporting – or failing to self-report – is a problem that regulators have continuously struggled to overcome. But it’s only getting harder as employers look to fill jobs and fill them quickly, a fact that some believe is influencing both the industry and federal oversight committees to look the other way. According to CBS, the Federal Motor Carrier Safety Administration granted 2,390 medical exemptions in 2013-2014 for things like diabetes, seizures, and vision and hearing loss—all of which would normally prevent drivers from operating a large vehicle.

Our friend and attorney, Steve Gursten of Michigan Auto Law, was featured as part of the CBS investigation and had this to say:

“For the trucking companies, they want to look the other way, even when they know a lot of these truckers really should not be behind the wheel because they’re too dangerous for everybody else on the road. But they need to put drivers behind the wheel so they can get paid.”

The Federal Motor Carrier Safety Administration (FMCSA), which maintains that it continues to overhaul a broken system to combat systemic shortcomings, bears some responsibility for the problem, too, and for people like Allen who suffer the consequences. At a time when the industry faces a record shortage of drivers, horror stories like Allen’s is giving the public renewed reason to question whether the industry is doing all it can to make safety a priority,

“You’re allowing this person, who could possibly kill people, drive a weapon on the highway,” Allen told CBS. “And it’s just not right.”

The Erin Andrews tragedy

March 3, 2016 by Jay Stefani Leave a Comment

Eight years ago, Erin Andrews was the victim of a video scandal. Now she’s the victim of something different

Erin Andrews was young, talented and spending a lot of time on the road. During a weekend work trip in the fall of 2008, the ESPN sideline reporter checked into a Marriott Hotel in Nashville, not knowing that her life was about to change. Unbeknownst to Andrews, a man named Michael David Barrett had requested a room next to hers. He altered a hole in the wall and began filming. What happened next was a whirlwind.

Barrett posted the video to the Internet. By the time Andrews found out, the damage was irreparable; it amassed nearly 17 million views, according to one expert. National newspapers began printing stories and running blacked out pictures of the footage on its front pages. Later on, after an interview that aired on ESPN, people began accusing Andrews of orchestrating a publicity stunt to get more attention. She was humiliated, embarrassed, and angry. She was violated beyond reproach. Worst of all, the whole fiasco was likely preventable.

Andrews was in court this week as part of a $75 million dollar lawsuit against Marriott hotels and its partners, claiming that the hotel staff was aware that Barrett had requested the room next to hers and didn’t inform her. Hotel executives deny that the staff did anything wrong, offering up different accounts of what happened. Marriott’s corporate defense counsel, in a brazen display of shaming, went as far as to say that Andrews has benefited both professionally and financially from the exposure.

The protracted legal battle and the details have only recently come into full view. The sportscaster and her family have given sad accounts of their lives after the fact. It’s been emotional. Andrews’s father said his daughter is no longer the fun-loving person she used to be while Andrews says she’s often “scared to meet people.” Even now, she suffers harassment on social media and elsewhere.

Despite such disheartening testimony, there’s a small faction, including Marriott’s defense team, still wondering whether Andrews is simply being opportunistic. Lead defense counsel Marc Dedman decided to put the onus on Andrews, going as far as to say that the incident helped improve her career prospects and her bank account. He brought up Andrews’ recent endorsements by Reebok, Degree deodorant, and Diet Mountain Dew, essentially framing the event as though it were fortuitous. It’s a backwards argument, as if the endorsements should excuse the crime.

This type of baseless victim shaming isn’t unique to Andrews. I have spent the better part of ten years overseeing cases in which defense attorneys have implicitly tried to blame plaintiffs for what amounts to a certain degree of harassment. This is especially true of crash victims, who are often portrayed as reckless, unprincipled storytellers looking to cash big checks. What you won’t hear from defense attorneys is the devastating loss of a job, the uncontrollable debt as a result of hospital bills, and the unshakeable truth that life will never be the same.

These aren’t grandiose platitudes; these are real situations brought on by real events. It takes a low standard to try to prove otherwise. The irony is that corporate defense teams, like the ones Andrews is facing, are the ones playing with money. They’d rather destroy someone’s character before accepting any responsibility or accountability.

How shameful.