Law.com recently posted a short but helpful article regarding tax information relating to plaintiffs. Click this link to read "5 Things Every Plaintiffs Attorney Shiould Know About Tax Law."
With police, schools and employers all utilizing Facebook as a resource to discover information about people, it is no surprise insurance adjusters are following suit. MSNBC.com posted an article by the Associated Press reporting that a woman lost her long-term sick leave benefits being paid an insurance company after one of the company's representatives discovered pictures of her in good health at a night club.
Insurance company adjusters and representatives handling disability claims, worker's compensation claims and personal injury claims have started to use social networking sites such as Facebook and MySpace as a resource to collect evidence of malingering injuries. However, some pictures may create the appearance that an injury victim is in better health than they actually are, or the picture was taken before their injury occurred. For the reason that some pictures displayed on social networking sites may inaccurately portray an injury victim's health and condition, it is important injury victims closely monitor the content accessible to others in their personal profile.
Attorneys who represent personal injury victims or handle personal injury litigation should attend one of the periodic conferences conducted by the National Institute for Trial Advocacy. I had the privilege of serving on the faculty for the recent week-long NITA conference at the Indiana University School of Law at Indianapolis and I am proud to report that it was a wonderful success.
NITA provides training of legal advocacy skills for lawyers with all ranges of skills, but is particularly helpful to those attorneys who have less experience in the courtroom or wish to refine their skills. The conference seeks to teach advocacy skills in all facets of litigation, with a 4:1 student/faculty ratio and a volunteer faculty of judges, professors and practicing attorneys from around the country.
The conference in Indianapolis last week focused on examination of lay and expert witnesses, as well as opening statements and final arguments. It concluded with a mock trial by all participants. NITA conferences utilize a learn-by-doing method, with immediate feedback and demonstations by faculty members. Participants are welcomed into the NITA "family" and receive NITA certification at the end of the conference.
The New York Times recently discussed a problematic new trend happening during jury trials. That trend being jurors using Blackberrys and iPhones to gain information through the internet about the case they are hearing. Read the article here.
On top of these devices distracting the jurors from focusing on the case, internet services provided through Blackberrys and iPhones allow jurors to research technical aspects involved in the trial they are hearing or simply find out information about the parties themselves. Information that can be prejudicial and prohibited from being considered pursuant to state and federal trial rules.
Continue reading "Blackberrys and iPhones Causing Problems in Court " »
In jury trials involving personal injuries, disputes often arise regarding what can be said about insurance during the course of proceedings. Unfortunately, many assumptions about about what can and cannot be said about insurance are based upon evidentiary rule misconceptions rather than upon the actual rules of evidence.
Obviously, what can be said will depend upon the nature of the case. If the claim is a first-party insurance case brought by an insured against her insurer, such as an uninsured or underinsured motorist claim, the insurance company is a party to the action and its identity should be appropriate for discussion as these claims are technically based upon contract. Malott v. State Farm, 798 N.E.2d 924, 926 (Ind. Ct. App. 2003). Under these claims, not only can you discuss the identity of the insurance company, but a plaintiff may introduce into evidence portions of the written insurance policy to establish the contract upon which the claim is based. See Ind. Trial Rule 9.2(A) (requiring written contracts to be filed with the complaint and made part of the record). . . . Continue reading Tony Patterson's article Insurance at Trial: What Can You Say? on Parr Richey Obremskey & Morton's Indiana Co-Counsel newsletter for October 2008.
The Indiana Trial Rules do not distinguish between "trial" and "discovery" depositions. Trial Rule 30 allows either party to conduct a deposition provided that the party gives reasonable notice in writing to other parties to the action. If a deposition is properly taken in accordance with Trial Rule 30, the deposition may later be used at trial for evidentiary purposes if the witness is unavailable to testify at trial and the party against whom the testimony is offered had an opportunity and similar motive to examine the witness during the deposition. (Ind. Rule of Evidence 804(b)(1)) It does not matter that the deposition was not noticed as a "trial" or "evidentiary" deposition, as the "Indiana Rules of Trial Procedure do not recognize such a distinction." Hagerman v. Copeland , 697 N.E.2d 948, 953 (Ind. Ct. App. 1998).
This past Friday, September 5th, Indiana Trial Lawyers Association (“ITLA”) presented an all-day seminar entitled “Personal Injury Trials from Start to Finish” at the ISTA Conference Center in downtown Indianapolis.
Tony Patterson (seminar chair) and Paul Kruse, both attorneys from the law firm Parr Richey Obremskey & Morton, as well as six other central Indiana attorneys addressed roughly twenty attendees on a range of topics associated with personal injury trials. Topics included: motions in limine and pre-trial evidentiary issues; presenting compelling opening statements; effective uses of lay witness testimony and dealing with defense and surprise witnesses; trying a personal injury case from the defense perspective; utilizing technology exhibits on a budget at trial; choosing your experts and effectively presenting testimony; dealing with the defenses’ medical examiners; and effective use of testimony, jury instructions and demonstrative evidence during closing argument.
The Indiana Court of Appeals upheld the trial court's award of prejudgment interest in a medical malpractice case earlier this month in Hupfer v. Miller, 2008 WL 2600021 (Ind. Ct. App. 2008). In Hupfer, a jury returned a verdict in favor of the Plaintiff for $75,000 against a podiatrist who was found liable for committing malpractice. Following the verdict, the Plaintiff filed a motion for prejudgment interest. The trial court granted the motion and awarded the plaintiff $24,000 after applying an interest rate of 8%.
The Indiana Court of Appeals affirmed the trial court's decision on appeal. In doing so, it stated that the initial award of prejudgment interest was made pursuant to the Tort Prejudgment Interest Statute ("TPIS") (or IC 34-51-4-1 et. seq.), which was enacted to "encourage settlement and to compensate the Plaintiff for the lost time value of money." Moreover, TPIS preempts comomon law prejudgment interest in tort cases.
On appeal, the Defendant argued that Plaintiff's written settlement offer did not comply with TPIS because it failed to specify the exact Plaintiff and Defendant to whom the offer applied. The Court disagreed stating the it was clear who the offer was directed at when the letter was sent from the individuals who filed the claim to the person whom the claim was filed against.
The Defendant also argued that the prejudgment award violated TPIS as it was more than one and one-third (1 1/3) the amount of the total judgment. The Court again disagreed explaining that the TPIS states the prejudgment interest award must not exceed one and one-thid the total amount of the judgment and in the case at hand the prejudgment interest award was exactly one and one-third.
Lastly, the Defendant unsuccessfully argued that the trial court erred in awarding prejudgment interest when it applied a prejudgment interest rate of 8%. The Court, however, noted that the TPIS allows a trial court to award a prejudgment interest rate of not less than 6% and no more than 10% per year. Consequently, the trial court was within its discretion to award 8%.
The SunHerald.com reported that the American Association for Justice ("AMJ") recently released a report ranking the United States "worst" insurance companies based on factors such as: refusal to pay just claims, the company employs harball tactics against policyholders, rewarding of company executives with extravagant salaries, and the raising of premiums while stockpiling excessive profits.
Researchers for the AMJ spent six months gathering information to base the report on. According to the SunHerald.com, researchers used "court documents, SEC and FBI records, state insurance department investigations and complaints, nationwide news accounts, and testimony of former insurance agents and adjusters" to draw their conclusions.
The top five "worst" companies listed in the report are:
1. Allstate
2. Unum
3. AIG
4. State Farm
5. Conseco
Indiana's Hospital Lien Statute, IC 32-33-4-1 et seq., allows a hospital to hold a lien against an injury claim. When properly perfected, this lien applies to any amount recovered by the patient.
The hospital must record its lien in the county where the hospital is located within 180 days after the patient is discharged, and, within 10 days of recording, must provide notice of the lien to (1) the tortfeasor, (2) the patient's attorney, and (3) the Indiana Department of Insurance.
Despite the statute explicitly requiring a hospital to provide the patient's attorney with actual notice of the lien's existence, the Indiana Supreme Court has determined that, in certain situations, constructive notice will suffice. To avoid personal liability, search the Recorder's Office for any hospital liens prior to disbursing any funds in a personal injury claim.
In Smith v. Auto-Owners Ins. Co., the plaintiffs automobile insurer argued that IC 27-7-5-4 and the terms of the insurance policy prevented the plaintiffs from making an uninsured motorists claim more than two years after an accident. Upon review, the Indiana Court of Appeals held that although IC 27-7-5-4 requires the tortfeasor's insurer to become insolvent within two years of the date of the accident in order for a party to be able to claim uninsured motorists coverage from their insurer, the statute does not require the claim to be filed within two years after the accident, only within two years after the tortfeasor's insurer becomes insolvent and the insured has knowledge of the insolvency. 877 N.E.2d 1220, 1224 (Ind. Ct. App. 2007).
Under many circumstances, lawyers have cases which may need to be referred to other counsel for a variety of reasons. While the case may require referral, many lawyers are hesitant to do so due to fear of losing a fee. This fear arises from Professional Conduct Rule 7.3(f) which prohibits one being paid purely for a referral.
Notwithstanding the ban on pure referral fees, Rule 1.5(e) provides that lawyers in different firms can divide fees from cases provided that (1) the division is in proportion to the services performed by each lawyer or the attorneys assume joint responsibility for the representation; (2) the client agrees in writing to the division; and (3) the total fee is reasonable. Under this Rule, referring lawyers are still entitled to collect a fee so long as these requirements are satisfied.
This rule was noted by the Indiana Supreme Court in In re Hailey, 792 N.E.2d 851 (Ind. 2003). The Court stated that in all circumstances the total fee must be reasonable and the division must be accepted by the client in writing. Further, absent proportionality in services rendered by the referring attorney, all attorneys receiving a portion of the fee must accept, in writing, joint responsibility for the representation. This ruling resulted in the revision of Rule 1.5 in 2005.
If you are contacted regarding a case involving a potential traumatic brain injury, several steps should be taken to insure that the injuries are fully explored and that proper evidence is developed. Among the steps are as follows:
• Obtain the police report and photographs, interview all accident witnesses regarding the nature of the incident and the facts surrounding it.
• Closely review and gather all medical records, including the ambulance run and emergency room reports.
• Gather all medical imaging, including CT Scans, MRI and SPECT Scans. Obtain the DICOM studies so that interactive slice choosers and three-dimensional imaging can be reviewed.
• Interview family, friends and co-workers to identify the client’s behavior, personality or cognitive changes.
• Consult with or retain a neurologist and neuropsychologist to perform testing for measurable brain injury.
• Gather all pre-injury academic, military, employment and medical records to help establish a pre-accident baseline.
• Retain the services of a forensics psychiatrist to determine the psychological impact of the traumatic brain injury.
While each case should be reviewed independently, most traumatic brain injuries require that these issues be addressed in order to fully develop and explore your client’s injuries.
Anyone who has dealt with health insurance companies either on a personal or a professional level is probably familiar with the insurance “write-off” for medical expenses. In a nutshell, the write-off is a contractual reduction in the amount that an insurance company is required to pay a medical care provider for services rendered on behalf of the insured. For the unsuspecting plaintiff’s attorney, however, the insurance write-off can be a potential stumbling block. It is important to be wary of attempts by the defense to limit the evidence of medical expenses to the net amount paid, rather than the gross medical expense charged by the provider. Although the specific issue of insurance write-offs has not been addressed by Indiana Courts, the existing statutes and caselaw support the proposition that the admission of insurance write-offs into evidence is improper, and that such evidence should be excluded.
At trial, the plaintiff should introduce the total medical bills into evidence in order to establish the reasonable cost of medical services; further, the plaintiff should attempt to keep the defense from putting in the insurance write-offs. A motion in limine is a useful pre-trial tool to accomplish this, and it can prevent the possibility having to argue about these issues in front of the jury. In the motion, the plaintiff should first argue that the Collateral Source Rule prohibits the introduction of insurance write-offs because they are a part of the insurance benefit for which the plaintiff has paid. In the absence of specific Indiana caselaw that addresses the insurance write-off, the plaintiff should also refer to Indiana cases which hold that the measure of damages for medical treatment is the reasonable value of the services, and not the actual amount paid. These cases complement the statutory analysis and strengthen the argument that the introduction of the insurance write-off is improper.
Additionally, the plaintiff may make policy arguments that the principles of subrogation help to defray any purported windfall to the plaintiff for damages recovered above and beyond the actual amounts paid by the insurance company. More importantly, the existence of a contractual relationship between an insurer and an insured plaintiff is wholly independent of the defendant tortfeasor, and the defendant should not be exculpated from the full extent of liability on that basis. To hold otherwise would have the effect of punishing the plaintiff who has obtained medical insurance and would deprive the plaintiff of a fair and reasonable award for damages.
