Ju$tice for $ale in Alabama?

Interesting Article from the Anniston Star.

Corporate money and courts
By Robert Leslie PalmerSpecial to The Star
09-28-2008

In electing the next Alabama Supreme Court justice, Alabamians should bear in mind the Dutch proverb that “promises make debt, and debt makes promises,” for it is now virtually impossible to run for judicial office in this state without acquiring substantial political “debt.”
Alabama ranks at the very top in the cost of judicial campaigns, which commonly exceed a million dollars. If we think that all of that money has no effect on the quality of justice, then we are only deluding ourselves.
But how did this come about? Last December, a Harper’s Magazine article, “The Best Justice Money Can Buy,” observed that it was Karl Rove who “put the Supreme Court elections in Alabama ‘on the map’ in national political terms.” The article then detailed how in 1992, Rove masterminded a strategy by which the Republican party seized control of the Alabama Supreme Court.
That strategy involved substantial infusions of cash into judicial campaigns by corporate interests. According to the non-profit organization, Justice at Stake, Alabama Supreme Court candidates raised $54 million between 1993 and 2006, the highest total in the nation. As a result, 16 years later all but one of the nine Alabama Supreme Court justices is a Republican.
Despite the near complete domination of Alabama Supreme Court elections by corporate interests, the cash spigot is still running. More important, the flow of corporate money has had a demonstrable effect on the quality of justice. In the fall 2008 Alabama Association for Justice Journal, an article, “Is There Any Hope?”, has removed the rhetoric from the struggle between corporate interests and trial lawyers by painstakingly detailing objective facts rather than subjective opinion.
For example, the article demonstrates that in the past five years, the court has either reversed or reversed in part nearly four times as many jury verdicts as it has affirmed, and that there is an astonishing correlation between the percentage of campaign contributions received from corporate interests and votes to reverse a jury verdict.
Thus, by methodically detailing fundraising and election results, individual justice’s votes on plaintiffs’ damage verdicts, and the degree to which campaign contributions correlate with judicial decision-making, the article demonstrates objectively and authoritatively that all that corporate money has “made it harder for civil plaintiffs in Alabama to get and keep jury verdicts” compensating them for their injuries. In short, the article lifts the Court’s skirt to reveal the red boots of a brazen streetwalker.
A wise person once admonished us that the “accomplice to the crime of corruption is frequently our own indifference.” If we remain indifferent to the wholesale purchase of our highest court by corporate interests, then we will all be accomplices to every unjust decision that the court renders.
It is in this context that we must consider the campaign contributions in this year’s only Supreme Court race. To date, Greg Shaw has raised $591,269 from 188 contributors, for an average of $3,145 per contribution. In sharp contrast, Deborah Bell Paseur has raised $521,009 from 1,417 contributors, for an average of $367 per contribution. Thus, even though Paseur raised just 88 percent of the total contributions that Shaw raised, the number of her contributors outnumbers Shaw’s 7.5 to 1.
Shaw was able to exceed Paseur’s total campaign contributions only because his campaign contributions on average are nearly 9 times as large Paseur’s. In short, Shaw has raised more cash from decidedly fewer sources.
More disturbing, however, is the degree to which Shaw’s contributions come from political action committees. In contrast to Paseur’s campaign contributions, less than 11 percent of which come from PACs, a whopping 95 percent of Shaw’s campaign contributions come from PACs. And if that is not enough to make you ill, a full 62 percent of Shaw’s contributions come from PACs run by one person, Thomas Dart, a lobbyist for the Automobile Dealers Association of Alabama. Every time you watch a commercial or read an ad for Shaw, remember that the pitch is being made by car dealers.
Unlike Shaw, Paseur has collected campaign contributions primarily from individuals rather than PACs, and half of her contributors are women. When couples are included, the number rises above 61 percent.
Alabama, you should vote for Shaw only if you truly believe that juries — composed of ordinary citizens like you — are wrong more than 80 percent of the time, and that the Alabama Supreme Court needs one more justice whose sympathies lie with corporations rather than people. You should vote for Shaw only if you are comfortable buying your next Supreme Court justice from a used car salesman.
But if instead you can see the plain facts before you, and if you are concerned that corporate money threatens the sanctity of our judicial system, then you should stand up for an independent judiciary and vote for Deborah Bell Paseur.

(See previous commentary on this subject from the Anniston Star.)

Justice for Sale in Alabama?

With the elections just a few days away, we’d encourage you to visit the web site Justice for Sale that chronicles the influx of large cash contributions to the Alabama Judicial elections via nondescript PAC’s. While we continue to push for the non-partisan election of Alabama judges, we also think it’s time for Statewide judges in Alabama on the Alabama Court of Civil Appeals, the Alabama Court of Criminal Appeals and the Alabama Supreme Court to be appointed via a non-partisan committee and run for retention as opposed to election. This works well for the majority of other States and we believe such a system would better serve our citizens. However, until that time we must work within the system provided. We our endorsing and encouraging our friends and clients to vote for the following three candidates in the four statewide judicial elections next week:
– Rhonda Chambers, Alabama Supreme Court, Place 1
– Tom Edwards, Alabama Supreme Court, Place 2, and
– Deborah Bell Paseur, Alabama Court of Civil Appeals.
All of three of these candidates are highly qualified to serve the citizens of Alabama and each has received numerous endorsements from various Statewide newspapers and publications. No matter how you plan on voting next Tuesday, we hope you will take the time to cast your vote. The right to vote is an important part of the fabric of our great country and when you vote, you honor all of those people who have sacrificed so much to preserve and protect that right.

US Chamber of Commerce = Hypocrites

Over the past 15 years the US Chamber of Commerce has been one of the Country’s most outspoken critics of the American civil justice system and “trial lawyers.” Yet as you can see below from the recently released report from the American Association for Justice, the US Chamber has aggressively used litigation in our civil justice system to promote the interest of big business and insurance companies to the detriment of injury victims and consumers. So, it’s OK to file mountains of civil lawsuits for big business and insurance companies but anytime an injury victim or consumer files a lawsuit they are “abusing” our civil justice system? I think if you look up the definition of hypocrite it should say, “see US Chamber of Commerce.”

From the AAJ Press Release:
Washington, D.C.—Earlier this month, U.S. Chamber of Commerce President and CEO Tom Donohue called litigation “one of our most powerful tools for making sure that federal agencies follow the law and are held accountable.”
Yet ironically, the Chamber today holds its annual Legal Reform Summit – an event underwritten by its multinational corporate members that promotes undermining the civil justice system to weaken the basic legal protections of American workers and consumers.

The Chamber’s hypocrisy – blocking justice for everyday Americans while using the courts liberally for its own pro-corporate agenda – is the subject of a new report released today by the American Association for Justice (AAJ) that exposes the Chamber as one of the most aggressive litigators in Washington, entering lawsuits at a rate of over twice weekly.

“The Chamber’s ‘one rule for corporations, another rule for everybody else’ motto has come at the expense of ill-treated workers, defrauded investors and injured consumers,” said AAJ President Gibson Vance. “It readily spends millions of dollars to prevent Americans from holding wrongdoers accountable in the courtroom, and then aggressively uses the very same legal system to advance the agenda of its multinational corporate membership.”

In almost every case, the Chamber’s litigation on behalf of corporations has come at the expense of Americans’ health or financial security. The Chamber has: justified the actions of Wall Street banks that drove the country’s economy into turmoil; defended the most conceited and worst behaved CEOs and their most extravagant excesses; tried to force workers, instead of employers, to pay for their own safety equipment; filed numerous actions opposing any move to combat climate change; sought to shield pharmaceutical executives who skirted safety procedures that ultimately killed 11 children; opposed measures allowing workers to receive a rest period during a full work day; fought on behalf of lead paint manufacturers found to have poisoned thousands of children; defended corporations that discriminated on the basis of race and disability; and spent years defending big tobacco, asbestos companies and chemical companies found to have contaminated water and air.

“The Chamber has every right to seek what it believes to be justice in a court of law, even if representing the most deplorable corporate interests,” said Vance. “But it must learn that this right to justice belongs not just to their organization, or big business generally, but to all Americans.”

The report, titled “The Chamber Litigation Machine: How the Chamber Uses Lawsuits to Keep Americans out of Court,” can be found at www.justice.org/USChamber.

Five Important Things to Know About an Insurance Claim in Al

[The following material is an excerpt from our recently published Guide for Insurance Claims. Download the entire guide at no charge at: http://www.bfw-lawyers.com/pdfs/Guide-for-Insurance-Claims.pdf]

1. Burden of Proof: The first and most important thing to remember about any insurance claim is that the person or business making the claim (the claimant) carries the burden of proof related to that claim. The person who is handling the claim on behalf of the insurance company (the adjuster) does not have to “disprove” the legitimacy of the claim. The adjusters job is simply to determine if the claimant has presented adequate proof of a covered loss with proper supporting documents or material to pay the benefits being claimed. It is important to understand and realize, the adjuster has an obligation to the insurance company to only pay benefits that are legally owed under the policy. The claim files of adjusters are periodically audited to make sure they are not paying more benefits than required by the terms of the policies and that claims are properly documented before making a payment. In some instances, insurance companies even pay bonuses to adjusters and/or agents based upon claim pay-outs, or more specifically, the lack thereof.

2. Adversarial Process: As nice and friendly as you think the insurance company will be to you in the claims process; understand, Alabama law defines the insurance claim process as an “adversarial proceeding.” This does not necessarily mean the insurance company is going to be mean and nasty to you during the claim process, rather it simply means you have to recognize that your objectives and the insurance company’s objectives are not the same when it comes to an insurance claim. You would prefer they pay the claim and they would prefer not to pay the claim. Because the claim process is defined by law as an adversarial process, insurance companies are granted a certain amount of latitude in how they handle and adjust an insurance claim, even if it works to the detriment of the claimant. Specifically: 1) there is no obligation for an adjuster to “help” you better present your claim, 2) the adjuster does not have any obligation to tell you about critical time lines or time limitations related to your claim, 3) the adjuster does not have to tell you about other possible coverages available to you for the loss, and 4) the adjuster often can not give you advice or suggestions on how to best coordinate multiple coverages related to a loss. Simply put, because it is an adversarial process, you can not expect the insurance company to tell you how to effectively and timely present your claim or provide you with any helpful information . Because this process is considered “adversarial” a claimant does not have a right to justifiably rely on anything an adjuster says about the terms and conditions of the policy and/or the merits of the claim! [See, Apkan v. Farmers Insurance Exchange, Inc. 961 So.2d 865 (Ala. Civ. App. 2007): Insurance adjuster has no duty to help or assist claimant. In fact, adjuster’s duty is to protect the insurance company. Southern Bakeries Inc. v. Knipp, 852 So. 2d 712 (Ala. 2002): If a party owes no legal duty of disclosure to another, then material facts can be suppressed with out recourse for failure to disclose.]

3. No Reliance on Agent’s Oral Representations: As difficult as this is for most of us to believe, Alabama law has held that insurance customers do not have a right to justifiably rely on an oral representation made to them by the agent concerning the terms or conditions of the policy. This means if the agent tells you some event or loss will be a “covered loss” and the policy says it is not, the policy language will control and the loss may not be covered despite what the agent may have said. See Foremost Insurance Company v. Parham, 693 So.2d 409 (Ala.1997).

4. Clauses and Exclusions: Another legal reality that insurance customers have a hard time accepting is that Alabama law considers insurance policies to be “mutual contracts.” See Wolfe v. ALFA, 880 So. 2d 1163, 1169 (Ala Civ App 2003). What this means is our laws consider the customer and the insurance company to be “equals” in the negotiating process. Because of this legal concept (some call it a legal fairy tale) unfavorable and/or sometimes down right unconscionable clauses that work against the claimant are upheld on the basis that the customer got what he or she “bargained for” when “negotiating” for the purchase of the policy. Some of these type detrimental clauses include “commercial” arbitration clauses, forum and venue selection clauses, appeal protocol and procedure clauses, strict compliance clauses, cooperation clauses, indemnity clauses and many more often buried in the fine print of the policy. This also means well crafted exclusions for covered losses can be included, and upheld as valid, under the guise of a “negotiated” contract. One outrageous example of this is an exclusion for property damage losses currently found in some Alabama issued policies. It is an exclusion for “a loss to a covered property caused, or contributed to, by negligent construction.”

5. Notification of Claim: No matter what type of claim is being presented, it is always the responsibility of the insured individual and/or business and/or claimant to properly notify the insurance company of the claim or even the potential claim. All insurance policies have guidelines and procedures for notification of a claim and/or a “covered loss.” If these procedures are not followed, they can provide the insurance company with a legally recognized excuse to not pay the claim. Upon being notified of a claim or of a potential claim, many insurance companies will send out “claim forms” to the claimant. If the company does not provide “claim forms” it would be wise to verify the notice of claim in writing to verify that “timely notice” of the claim has been provided.

M&W Press Release: Re GEICO claim practices

M&W today issued a press release for general media distribution regarding the unfair claim practices of GEICO. The body of the release is included below:

PRESS RELEASE

TO: Mobile Area Media Outlets
FROM: Moore & Wolfe, Attorneys
DATE: October 21, 2009
RE: GEICO Unfair Claims Practices

[NOTE: Because of pending litigation, the name of the client has been omitted.]

83 Year Old Great Grandmother has to File Lawsuit Because of GEICO’s Unfair Claim Practices.

On November 21, 2008 Mrs. Beatrice XXXX was rear ended as she drove her car in Mobile County, Alabama. She was at a complete stop when the driver of the car behind her drove his car into the back of her car. The Mobile Police Department, who investigated the collision, determined the other driver to be at-fault and determined that Ms. XXXX did nothing to cause or contribute to the collision. According to her attorney, Karlos Finley of Moore & Wolfe, Ms. XXXX received soft-tissue injuries which required a trip to the emergency room and some additional follow-up care for soft-tissue injuries. Her total medical bills were a little over $7,200.00. These bills were paid by her health insurance company and her own insurance carrier under the medical payments provisions of her automobile policy. According to Finley, these companies have asserted a subrogation claim for a refund for their payments from any monies recovered by Ms. XXXX in her liability claim against the at-fault driver who is insured by GEICO.

In an attempt to avoid the time and expenses of litigation, after Mrs. XXXX had completed her treatment and was released from her healthcare providers, Mr. Finley prepared a settlement package which consisted of $7,207.50 in total medical charges and began pre-litigation settlement negotiations with GEICO. Those negotiations broke off with GEICO making a best and final offer of $4,700.00 on behalf of their insured with full knowledge that Ms. XXXX’s own insurance company was asserting a subrogation lien of $5,000.00 for Medical Payment benefits afforded her through her automobile insurance policy. Even worse for his client reports Mr. Finley is that it took GEICO over 8 weeks to even begin negotiations after the claim material was submitted.

According to her lawyer, GEICO’s unreasonable settlement offer left his client with no option but to seek full restitution through the legal system and a lawsuit has now been filed against the at-fault driver for his negligence in causing the collision. In Alabama, even though the insurance company may be the one controlling the settlement offers, its their insured who has to be sued in Court. Mr. Finley went on to say, “This pattern of unfair claims handling is nothing new for GEICO. Over the past year we have seen this same pattern time and time again with GEICO. Their offers to settle claims without litigation are so low, that victims must either take a financial loss or proceed with a lawsuit.” In their recent law firm newsletter, Legally Speaking, Moore & Wolfe reported this problem was not just local but apparently a nationwide trend. The newsletter also explained why Alabama law favors insurance companies and allows them to get away with these type of unfair actions.

“I think GEICO assumed Ms. XXXX would not want to suffer the anxiety and stress of litigation and tried to use that to force her to accept an unreasonable settlement offer,” said Finley. He also reports that, “Ms. XXXX has never been in an automobile collision of any kind and has not injured her spine at anytime prior to the collision which brought about this legal action. She is a widow and native of Mobile, Alabama who graduated from Mobile County Training School in 1943. She is a great grandmother and has been a law abiding citizen who lives a very wholesome life.” He also said while his client is in fairly good health, he hopes the stress and strain of litigation does not cause her any medical consequences.

In closing Mr. Finley noted that GEICO’s unfair claims practices have seemed to coincide with GEICO’s significant increase in advertising for their insurance products. “You can’t watch TV for 10 minutes without seeing a Caveman or a stack of money promoting GEICO products.” He summarized this observation as follows: “Maybe GEICO should re-direct some of their advertising dollars to fair claim payments so an 83 year old great grandmother who gets rear-ended by a GEICO insured can avoid having to be in the middle of a lawsuit.”

NOTE: Because of pending litigation, the name of the client has been omitted.
_______________________________

For general release: October 21, 2009

For more information on this matter, please contact Mr. Karlos Finley at 251 433-7766, or the GEICO claims representative on this matter: Rachel Collins at 478 621-1564, GEICO claim number:020816433010105003.

ALLSTATE FINED $10 MILLION FOR CLAIMS HANDLING PROCESS

Over the last few years many of our clients have heard us complain about insurance companies using Computer Assisted Claim Evaluation Programs when trying to determine the value of a personal injury claim. These programs receive a variety of infomation input by the claims adjuster and then return a “value” for the claim. The most infamous of these type programs is one called “Colossus” used by Allstate. The problem with these programs is that they can be easily mainpulated to make sure the “value” returned for claims in any particular area or region are unfairly low. This forces claimants to have to file lawsuits to secure full compensation or accept the low offer and suffer an economic loss.
On October 18, 2010, the New York State Insurance Department announced that Allstate Insurance Company has agreed to pay a TEN MILLION DOLLAR regulatory settlement concerning its improper use of claims handling software; Colossus. The multi-state investigation was lead by the insurance departments of New York, Florida, Illinois and Iowa and included 41 other States. According the the press release from the NYS Department of Insurance the investigation found “inconsistencies in Allstate’s management and oversight of the Colossus software program. In particular, the examination found that Allstate had failed to modify or ‘tune’ the software in a uniform and consistent manner across its claims handling regions.” Press Release.
The Alabama Department of Insurance (ADI) particpated in this investigation and settlement and, according to Ragan Ingram Chief of Staff for ADI, our State will receive $37,749.60 of the $10 million settlement. This situation again exemplifies why our State needs a “Claimants Bill of Rights” to protect individuals from over zealous insurance companies. Click here to see a sample of the Consumer Bill of Rights adopted by the Texas Department of Insurance.

Surgical Mesh Dangers for Transvaginal Pelvic Organ Prolapse Surgery Patients

Surgical Mesh: Manufactured by numerous companies including, Johnson & Johnson and Boston Scientific Corp.

Used for: Surgical repairs for Pelvic Organ Prolapse (POP) and/or Stress Urinary Incontinence (SUI) surgery. Used in place of stitches surgical mesh is designed to be a permanent implant and has been commonly used in transvaginal POP and SUI surgeries for many years. In POP procedures the mesh is commonly called a “bladder sling.”

Symptoms or Consequences: In July 2011, the FDA announced that a multi-year study of surgical mesh implants found serious complications associated with surgical mesh for POP and SUI procedures. The FDA report also noted, “[f]urthermore it is not clear that transvaginal POP repair with mesh is more effective than traditional non-mesh repair in all patients with POP and it may expose patients to greater risk.” Erosion of the mesh through the vagina is the most common and consistently reported complication. Mesh contraction is also a risk. Both mesh erosion and mesh contraction can cause severe pelvic pain, painful sexual intercourse. Other symptoms may include: Bladder, bowel, or blood vessel bleeding or perforation, bone and hip infections and/or the recurrence of the POP and/or SUI condition.

Additional Information: For more information visit Providence Health Plan

Contact: If you believe you or a loved one may have a claim related to the use of surgical mesh in a POP and/or SUI procedure, please contact Knox at Boteler, Finley & Wolfe (knox@bfw-lawyers.com) for more information and help locating the law firm leading these Mass Tort cases.

Actos linked to Bladder Cancer

Actos: Manufactured by: Takeda
Prescribed for: Actos (pioglitazone) is used in the treatment of diabetes. Actos is used to control blood sugar levels in patients with Type 2 diabetes, which keeps the body from producing enough insulin to properly use the sugar in the blood stream. Type 2 diabetes can also cause the patient to become resistant to insulin. Actos remedies this problem by making cells more sensitive to insulin, thereby making it easier for sugar to pass through the body.
Symptoms or Consequence: May cause bladder cancer. The Food and Drug Administration (FDA) mandated a warning be added to Actos packaging in 2007. A second FDA warning in June 2011 contained specific details of the risk of bladder cancer associated with Actos. A recent study of 193,099 patients over a five-year period found that people who took Actos for at least 12 months or longer were 40 percent more likely to develop bladder cancer. A subsequent FDA Adverse Event report found that Actos was involved in one-fifth of all reported diagnoses of bladder cancer in diabetes drug users.
Additional Information: Read more on this matter at Web MD, and the June 15, 2011 FDA report.
Contact: If you believe you or a loved one may have a claim related to the use of Actos and a diagnosis of bladder cancer, please contact Knox at Boteler, Finley & Wolfe (knox@bfw-lawyers.com) for more information and help locating the law firm leading these Mass Tort cases.

Ford Recalls Additional 4.5M Vehicles.

The AP (10/13, Krisher, Manning) reported, “Ford Motor Co. said Tuesday it will add 4.5 million older-model vehicles to the long list of those recalled because a defective cruise control switch could cause a fire. The latest voluntary action pushes Ford’s total recall due to faulty switches to 14.3 million registered vehicles over 10 years, capping the company’s largest cumulative recall in history involving a single problem.” Ford “has struggled for a decade with the problem, which has prompted hundreds of complaints and dozens of lawsuits over fires allegedly caused by faulty switches.”

Bloomberg News (10/14) reports, “The voluntary recall affects models of vans and trucks including Windstars, Rangers, and Explorers. The switch, made by Texas Instruments Inc., can leak and then overheat, smoke, or burn.” No “deaths or injuries are linked to the defect.”

Read more about this recall and the involved vehicles.