Author: Knox Boteler

If you own your own home, chances are good that you’ve taken out homeowners liability insurance on it. In many jurisdictions, this step is required by law. Likewise, most business owners use commercial liability insurance to protect their investments and insulate themselves from claims. While such insurance policies are designed to insulate homeowners and business owners from the financial costs associated with physical damage, liability claims and other issues, they’re not intended to absolve them of responsibility for negligent or intentionally harmful actions. If you’re thinking about filing a liability claim against a homeowner or business owner, take a moment to review the basic differences between homeowners liability and commercial liability. Homeowners Liability Insurance Basics Homeowners insurance comes in two basic parts: property and liability. While we could easily devote an entire article to property insurance issues, homeowners liability insurance is fairly straightforward. This guarantee protects homeowners from financial damages associated with injuries, deaths or damages that occur in their homes or on their properties. Liability claims against homeowners often occur after falls that result in severe injuries, or after on-site machinery accidents that can’t be blamed on defective products. Commercial Liability Insurance Basics Commercial or business liability insurance tends to be far more broad in scope. In addition to the physical structures in which the covered entity conducts its affairs, most commercial liability plans cover claims and damages associated with the products and services that it offers. If you file a claim against a business that makes a defective or harmful product, it’s quite likely that its commercial liability plan will cover the cost of any judgment that arises out of the case. Key Differences There are some obvious differences between homeowners liability and commercial liability. Whereas homeowners tend to be held liable for a narrower range of problems, businesses can be faulted for a variety of indirect problems that can be traced back to their products or services. However, business owners often evade personal responsibility for such issues. Any judgment that you stand to receive as a result of a commercial liability claim is likely to come out of the at-fault business’s asset pool. How Do You Know Who’s at Fault? In some cases, it may be difficult to determine the identity of an at-fault party. If you were injured on a residential property that doubles as a business site, the sequence of events that led up to the incident could prove to be consequential. You’d do well to speak to a liability expert before proceeding. If you still have some questions about the differences between homeowners liability and commercial liability, or aren’t sure how to determine the identity of the at-fault party in your specific case, turn to the seasoned liability experts at the law firm of Boteler, Finley and Wolfe in Mobile, AL. To learn more about the services that our firm’s seasoned attorneys can provide, visit us online or call 866-975-7766.

When visitors come to your home, you want them to be comfortable and safe. Unfortunately, accidents do sometimes happen, and the resulting injuries can cause strain on your friendship and finances. Although insurance can help mitigate the cost of an accidental injury claim, you may still require an attorney to protect your interests. It’s best to avoid the situation whenever possible by working to keep your home safe. Here are a few of the most common household risks and ways to avoid them: Falls Slips and falls account for about 40% of all injuries sustained in the home, and they’re the leading cause of injuries to home visitors. Guests may be unfamiliar with the terrain around your home, and safety hazards around the house may increase their chances of slipping. Although you may know that the last step in your stairs is an odd height or that there are extension cords crossing the yard, your guests won’t know to avoid these hazards. It’s best to clear your home of hazards. Pay special attention to clearing debris from walkways, and repair any unsteady or damaged stairs and porches. Animal Bites Dogs and cats have wills of their own, and they sometimes aren’t as friendly toward your guests as you might want them to be. Even a generally friendly animal can have an “off” day, and a stranger could trigger their defensive behavior. It’s important to keep your pets well trained and well socialized to avoid possible bites. It’s also not a bad idea to keep your pets away from guests during occasions that might over-excite them. Tucking them away in a quiet room during a party will be a lot less stressful for everyone. Kitchen Mishaps Dinner parties can be fun, but they can pose risks like burns and cuts to your guests. Reduce the number of kitchen accidents by keeping your knives properly sharpened, turning pot handles inward and encouraging appropriate dress in the kitchen. You might feel a little awkward at first, but a safe kitchen is the first step to safe guests. For more information about home safety risks, you can reference the most extensive study ever completed on the topic, the 2004 Home Safety Council report. Of course, even the most careful homeowner cannot always protect their visitors from themselves. If visitors to your Mobile, AL home have recently been injured, it might be time to contact an attorney about handling the liability claim.

These days, disability insurance is a hot topic of political discussion. After years of low-key operation, federal and state disability programs have been thrust into the spotlight. Despite its new-found prominence in the national discourse, disability insurance remains a necessary source of income for millions of Americans with health conditions that make gainful employment difficult or impossible. Before you file your disability insurance claim in Alabama, review these five little-known facts about the program. 1. Your Claim Won’t Automatically Be Accepted Many workers who suffer long-term injuries or receive psychological diagnoses that preclude gainful employment assume that they’ll automatically be accepted into Alabama’s disability insurance program. This is far from the truth: Recent statistics indicate that only 30% of initial applications for disability insurance are accepted by Alabama Disability Determination Services. That’s lower than the national average. 2. You’ll Need to Meet Substantial Gainful Activity (SGA) Criteria In Alabama and elsewhere, ultimate decisions to distribute or withhold disability insurance payments often turn on the question of whether a potential recipient can perform “substantial gainful activity.” SGA isn’t exactly synonymous with “working,” but most forms of work do count as substantial gainful activity. If you earn more than a set amount per month, you’ll be deemed capable of performing SGA and won’t be eligible for disability benefits. Current SGA thresholds sit at $1,740 for blind workers and $1,040 for non-blind workers. 3. Unemployment Isn’t the Whole Story Many applicants wrongly believe that currently employed individuals are automatically ineligible to receive disability insurance payments. While unemployed applicants tend to have a better shot at earning disability insurance payments, those who engage in “unsuccessful work attempts” may be considered as well. If you work at a job for less than six months after a prolonged period of unemployment and ultimately leave said job as a result of your disability, you can petition to have your stint categorized as a UWA. If this petition is successful, you’ll remain eligible for disability benefits. 4. Appeals Work While only 30% of initial disability applications are accepted by Alabama Disability Determination Services, a full 62% earn acceptance after applicants lodge formal appeals. If your application has merit, don’t be discouraged by an initial rejection. Instead, talk to a lawyer about appealing the decision. 5. Disability Eligibility and Awards Aren’t Static State and federal agencies are constantly updating eligibility requirements for disability insurance payments. For instance, the late 1990s saw an increase in the length of time for which applicants are eligible for Medicare support. By contrast, recent changes have made it more difficult for some individuals with diagnosed psychological disorders to continue receiving benefits. It’s important to work through these issues with a disability insurance expert. If you’re in the Mobile, AL area and having trouble negotiating your disability insurance situation, consider reaching out to a law firm for expert counsel. At Boteler, Finley & Wolfe, we have years of experience successfully representing disability cases. Let us help you with yours.

This insurance case involved a significant loss claim for F&S Marine LLC (F&S) at a shipyard job site in South Carolina. F&S submitted the claim for the loss and it was denied because the insurance company claimed F&S was not covered for the loss. Mark Wolfe of BF&W was retained by F&S to investigate and prosecute this matter. Pre-litigation attempts at resolution were not successful and a lawsuit was filed. Shortly after filing the lawsuit, a confidential settlement was reached in the matter.

Boteler Richardson Wolfe attorney, Mark Wolfe recently did a presentation for New Jersey attorneys on Practice Building. The presentation was done in Atlantic City at the New Jersey Association for Justice’s annual Boardwalk seminar. The Boardwalk seminar is one the largest programs in the United States for personal injury attorneys and consumer advocate attorneys. This year’s program had over 1100 attorneys register according to Christie Reha of AAJ-NJ. The two day program featured speakers from all over the United States.

by Mark Wolfe, Attorney at Law

DISCLAIMER: The following material is being provided as a courtesy and without remuneration. It is not intended to be a commentary on the merits of any potential medical malpractice claim or case. If you believe you have been the victim of medical malpractice, please consult with an experienced medical malpractice lawyer.

In Alabama medical malpractice cases are one the most difficult type of tort cases to successfully prosecute. From 2004 through 2008 health care providers won almost 80% of the medical malpractice cases tried by juries in Alabama. Besides being difficult to win at trial, many medical malpractice cases are dismissed by the Court before a jury even gets a chance to hear or decide the case. From 2004 through 2008 171 medical malpractice cases were dismissed in favor of the health care providers by Summary Judgment. The reason these cases are so difficult for victims is because Alabama evidentiary and procedural laws favor health care providers and make it difficult for a malpractice victim to succeed in a civil lawsuit. Yes, you hear doctors and the medical community raise concerns over the high cost of their malpractice premiums and they blame Plaintiff lawyers and lawsuits for these high premiums. But the truth is their gripe should be with the insurance companies who continue to claim “frivolous” lawsuits are the reason for these high premiums. As you will see from the information below, Alabama laws make it almost impossible for a frivolous medical malpractice case to even get through the Court house doors. These difficulties also explain why some attorneys in Alabama often just summarily dismiss calls from people who believe they have been the victim of malpractice without offering any meaningful explanation as to why no viable case exists.

Often times people will call an attorneys office simply wanting them to just to write a letter to the doctor’s insurance company to obtain a settlement for their harm without filing a lawsuit. But the insurance companies who provide malpractice insurance to doctors and hospitals know how difficult these type claims or cases are to prove under Alabama law. That is why they rarely offer compensation to people who believe they have been the victim of malpractice without full and complete litigation. Simply put, they know medical malpractice cases are very expensive and costly to prove and therefore they are not willing to settle until extensive and expensive litigation has been undertaken. But why are these cases so expensive and difficult?

Why are Medical Malpractice cases so expensive?
Medical malpractice is the failure of a health care provider to follow the appropriate standard of care (breach of a duty) which causes a harm or death. This sounds simple enough until you look at what is required to meet this definition. The victim must “prove by expert testimony” the standard of care which was breached and that the failure to follow that standard of care probably caused the injury or harm. This means no matter how straight forward the alleged malpractice may seem, expert testimony is needed to support the malpractice claim. Furthermore expert testimony is needed to establish the causation of the injury or harm. Experts must be equally or similarly qualified as the healthcare provider in question. Basically very few if any local doctors are willing to testify against another local doctor. This means victims must usually secure the services of an expert from outside the local area and these experts can be very expensive. A preliminary retainer for a basic medical record review can easily cost $10,000.00. These preliminary expert reviews usually are done for the basic purpose of establishing if a potential malpractice case can move to the next level of investigation and warrant further review by experts in a specific area or related to a specific issue.

Further adding to the expense and cost of a medical malpractice case is Ala Code § 6-5-551. This statutory law requires that a medical malpractice lawsuit include in the Complaint “a detailed specification and factual description of each act and omission alleged by plaintiff [victim] to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time and place of the act or acts.” In practical application this means victims of alleged malpractice must have a detailed expert opinion before drafting and filing a medical malpractice lawsuit. Given the complexities of medicine and medical care, it is often necessary to have two or three experts in order to comply with this statute. Again, more expenses. The statute further states that a Complaint which does not comply with these requirements “shall be subject to dismissal for failure to state a claim upon which relief may be granted.”

What all of this means is that Alabama law basically requires victims and their attorneys to undertake very expensive investigation procedures before ever trying to bring a medical malpractice case into Court. Most attorneys in Alabama who handle personal injury matters, including medical malpractice cases, do so on a contingency fee agreement (a percentage of the recovery) and they advance expenses for clients related to the prosecution of that case. These costs include expert fees. But the cold hard reality is the case must warrant the risk of these expenses. It does not make economical sense to advance $50,000 to $100,000 in litigation expenses if the probable recovery in the case is not significant or is not even going to cover the expenses of prosecuting the case. Medical malpractice insurance companies know this and that is the main reason victims get the cold shoulder from them. This is also the reason they pay little heed to victims who say “I’m going to get a lawyer and sue the doctor!”

Why are Medical Malpractice cases so difficult?
Medical care is a complex blend of sciences. Biology, chemistry, anatomy and physiology all factor into the healing arts. These complexities often make issues of causation complicated to prove. Add to this that the standard of care of what should or should not be done in a particular medical situation is not always as clear as we would like it to be and you can see why medical malpractice cases can be difficult to prove. The mere fact that another doctor would have done something different or opted for another treatment protocol or procedure in and of itself is not evidence of malpractice. The treatment or procedure in question must be a deviation from the applicable standard of care, i.e., no reasonable health care provider would have done it that way and the harm would not have occurred if there had been no breach or deviation from the acceptable standard of care. What follows is a brief summary of Alabama laws that apply to medical malpractice cases.

Higher burden of proof: Unlike most civil lawsuits in Alabama which simply require proof to the jury’s reasonable satisfaction, medical malpractice cases require proof by substantial evidence.

Alternative methods of treatment: The mere fact that an alternative method of treatment would have brought about a better result is not evidence of malpractice if the method of treatment in issue was within the reasonable standard of care.

Bad result or outcome: A bad result or outcome from a medical procedure is not malpractice or evidence of malpractice if the health care provider followed the standard of care.

Informed consent to a known material risk of the procedure: If the alleged harm is the result of a known material risk of the procedure and the patient consented to the procedure and the health care provider followed the appropriate standard of care, then there is no malpractice. Even if consent to the procedure is not obtained, Alabama law recognizes implied consent to treatment if the patient knew about the material risks of the treatment.

Limitation on time for commencement of action. All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.

In summary.
Alabama laws and the complexity of medical care make medical malpractice cases difficult to win in our State. It is often discouraging for people who believe they have been the victim of medical malpractice to get attorneys to take the time to explain why medical malpractice cases are so difficult to pursue in Alabama. Also, sometimes victims don’t understand all the hurdles that have to be cleared by a lawyer before he or she can say whether or not a viable medical malpractice claim exists. It is our hope this article has helped provide a better understanding of these issues.