Alabama Personal Injury Blog - Accidents

Durable Power of Attorney over Health Care Issues

Gaines Drago — Wed, 23 Sep 2009 10:44:56 GMT

No one likes to think about their own mortality, especially while feeling vibrant and alive. The "It could never happen to me attitude," dominates our thoughts, and while it is true that most of the time it won't happen to you sometimes it does, and the people left to suffer through painful decisions are friends and family. Imagine, for example, that you are 35 years old, in relatively good health, good job, engaged but not married, but that you are one day involved in an auto accident and leaves you incapacitated. Your are rushed to the hospital, where your mother, father and fiance agonize over what to do. Your mother wants keep fighting even though you have limited if any chance and you are feeling some high levels of pain, but your fiance, whom you have discussed this scenario with wants to let you go. These kinds of things, while horrible do happen.

However, there is an easy way to resolve this type of problem: awarding durable power of attorney over health care to a trusted individual. This works much like a typical durable power of attorney and gives a trusted person the ability to make decisions about life and death when the other party is unable to do so. In addition you can assign more than one person this power so as to relieve the alone on an island effect this could have over a person. The most appealing aspect is that it allows the victim to have a say in his own life and death decisions. Guidelines can and should be given to the individual who will be given power of attorney over healthcare. This will alleviate much of the pressure on that person, and allow you a peace of mind to know that whatever happens you are in control over what happens in your life.

While, no one certainly enjoys thinking about these things, there is nothing wrong with having a plan in place that ensures you remain the key decision maker in your own life.

Originally posted at InjuryBoard by Gaines Drago

Four-Wheelers Are Not Toys

Pete Mackey — Wed, 09 Sep 2009 12:51:53 GMT

Like many folks in the Mobile area, I went to the beach on Labor Day. On my way home, I saw two young boys coming the other way on a four wheeler in the grass next to the road. This road is a four lane, divided highway with a 50 MPH speed limit. The driver appeared to be no older than 12 or 13 and his passenger was considerably younger. Neither wore a helmet.

As a lawyer who represents claimants in injury cases, my first thought was all of the bad things that this scenario conjured up. As a parent whose children are grown, I wanted to turn around and drive them home. I could not get the thought of them out of my mind. When I got home, I went straight to Google.

Stories like this one popped up repeatedly. An entry on all terrain vehicles in Wikipedia provided some greusome statistics on overall use:

Statistics released by CPSC show that in 2005, there were an estimated 136,700 injuries associated with ATVs treated in US hospital emergency rooms. In 2004, the latest year for which estimates are available, 767 people died in ATV-associated incidents. According to statistics released by CPSC, the risk of injury in 2005 was 171.5 injuries per 10,000 four-wheel ATVs in use. The risk of death in 2004 was 1.1 deaths per 10,000 four-wheelers in use. Focus has shifted to machine size balanced with the usage of ATVs categorized by age ranges and engine displacements—in line with the consent decrees. ATVs are mandated to bear a label from the manufacturer stating that the use of machines greater than 90 cc by riders under the age of 12 is prohibited. This is a 'manufacturer/CPSC recommendation' and not necessarily state law.

The numbers regarding accidents involving children were even grimmer but the industry is more concerned with profits:

According to The New York Times on September 2, 2007, the Consumer Product Safety Commission met in March 2005 to discuss the dangers of ATVs. Data from 2004 showed 44,000 children under 16 injured while riding ATVs, 150 of them fatally. Says the Times, "National associations of pediatricians, consumer advocates and emergency room doctors were urging the commission to ban sales of adult-size ATVs for use by children under 16 because the machines were too big and fast for young drivers to control. But when it came time to consider such a step, a staff member whose name did not appear on the meeting agenda unexpectedly weighed in." That staff member was John Gibson Mullan, "the agency’s director of compliance and a former lawyer for the A.T.V. industry" - the Times bases the claim on a recording of the meeting. Mullan reportedly said that the existing system of warnings and voluntary compliance was working. The agency's hazard statistician, Robin Ingle, was not allowed to present a rebuttal. She told the Times in an interview, "He had hijacked the presentation. He was distorting the numbers in order to benefit industry and defeat the petition. It was almost like he still worked for them, not us." CPSC reports of ATV deaths and injuries show an increase in the raw numbers of deaths and injuries that is statistically significant. The rate of deaths and injuries, which takes into account the fact that the number of ATVs in use has risen over the last ten years, has been shown to have experienced no statistically significant change.

This is not acceptable. We need to do something. If you have a four-wheeler at the house, understand that it may be like a loaded gun around a child. Apread the word - these machines can be killers.

Originally posted at InjuryBoard by Pete Mackey

Money for a Wreck? Fast? Think again!

Jon Lewis — Mon, 31 Aug 2009 08:08:40 GMT

I was working out at the YMCA the other day, and another one of those attorney ads came on the television. The promise? We'll get you money fast for your wreck. Well, I don't know what process they are using, but I do know that our experience shows that proper compensation for your injuries does not come fast.

In this commercial, the firm implies that the process is quick, easy, and simple. That might be true if the case is settled for less than a fair value. Usually, the adjusters for the insurance companies make you prove your case and injuries before they properly evaluate the claim, and even then, they don't always evaluate it properly.

What if the case has to go to court? What does that entail? Well, we have to file a complaint with the court. Once the defendant is served with a copy of the complaint, they will have thirty (30) days to answer in Circuit Court. Once that process is concluded, paper discovery ensues, depositions are taken, a scheduling order is entered, and the case is typically set for trial within 12-18 months (For more information on the process, visit the Lewis, Feldman, Lehane & McAtee, LLC website). Is that fast? Is that quick and easy?

What about issues of subrogation? What is that? If your medical bills are paid by a health insurance company such as BlueCross BlueShield of Alabama, you have to pay them back and potentially negotiate a settlement with them. If Medicare paid your bills, you have to send them a letter and wait for a response. Do you know how long it takes to get a response from Medicare? Think about typical government action and how long that takes.

When attorneys start making promises of quick and easy cash for your injuries, question the process. How familiar are the attorneys with the court system? How many cases have they tried to verdict? How do they define proper compensation? This article is not to denigrate any firms or their attorneys, but to dispel the idea that these cases can be settled for quick and easy cash and provide you with adequate compensation. They CAN be settled for quick and easy cash, but the case will usually be settled for less than fair value.

Originally posted at InjuryBoard by Jon Lewis

Noose that Hangs a Man Shows No Damage Either

Jon Lewis — Wed, 19 Aug 2009 13:30:07 GMT

The insurance industry has been promoting a fallacy since the early 1990's. That fallacy is that people in cars cannot be injured if the damage to the car is minor. This could not be further from the truth; however, jurors and society in general have bought into this concept. People think anyone who brings a claim for injury after minor damage to the vehicle is a crook.

As the title of this blog indicates, the rope used to hang a man will show little, if any, damage, but it will kill the man. With respect to vehicles, they are built better these days and built to withstand crashes of more significance than they could withstand years ago. Think about the materials which are now used in bumpers and other components of cars and SUV's. Simply because the car or SUV shows little damage does not mean the impact of the collision was insignificant or that the person inside the vehicle was not jolted one way or another to cause an injury.

Additionally, you have more towing packages and other components which resist damage but still receive the force of the impact. The seats in the vehicle have an effect on the collision and injury as well. See this report on It is not enough to say that the car or SUV suffered little damage. Shouldn't we focus on the individual who is injured and not the metal?

My grandfather used to always say, "Don't ever worry about what money can replace." Unfortunately, insurance companies want you to focus on the opposite. Since there is little damage to the vehicle, this person isn't hurt, and we shouldn't have to pay. This is horrible logic. We should focus on the person and the doctor and not assume the victim is lying. We should presume the person is telling the truth because if they are, they are the ones who lose in the end and are left with the injury.

If you want to read more about this issue, here is a very good article with supporting cites: Low Impact Injury Accidents: Are they Real?

Have you been in a low impact accident? Were you injured? Do you know someone who was? Can you dispel the myth? Let's talk about it. Let's get the public aware of this problem. Not everyone is injured in a collision. Some people are involved in significant collisions and rollover crashes, and they are not injured. Some people are in minor crashes, and they are injured. That is why we need to evaluate the person, not the car.

Let us know what you think.

Originally posted at InjuryBoard by Jon Lewis

Overboard passenger in Gulf of Mexico...

Troy Schwant — Tue, 16 Jun 2009 11:37:05 GMT

Last night tragedy struck the carnival cruise lines that sails out of Mobile, Al, when an unidentified fifty (50) year old apparently fell overboard approximately 70 miles off the coast of Pensacola.

For most people, cruises are a way of escaping there every day problems, but unfortunately common sense can be left at home. Please be careful while on a cruise, because though Cruise lines push people to drink while on the cruise, it is important to realize that you are still on a vessel sometimes hundreds of miles from land.

blog.al.com/live/2009/06/carnival_coast_guard_search_fo.html

The next time you book a cruise, don't think of it as a seven day vacation from reality, think of it as a vacation from work, and make sure you are still safe while having a great time.

Originally posted at InjuryBoard by Troy Schwant

Are they Really Accidents?

Jon Lewis — Tue, 09 Jun 2009 20:52:36 GMT

I just finished a book called "Safety 24/7 - Building an Incident-free Culture". The authors, Gregor M. Anderson and Robert L. Lorber, Ph.D, make it clear that there are very few true "accidents". In the book, they call them "incidents". What's the difference? In the book, they define the difference as follows:

Incident vs. Accident: an accident implies the result is outside a person's control. In 97 percent of the cases, what happens - the incident - is easily within someone's control.

Somewhere along the line, we started calling "incidents" "accidents". Why? When someone runs a red light and causes a collision, is it an accident? When someone is texting on their cell phone and has a crash, is it an accident? When someone drinks and drives, is it an accident?

These aren't accidents. These are choices people make. We choose whether to pay attention to the roadway. We choose whether to look at the radio or look at the road. We choose whether to drive defensively. These are choices, and the term "accident" implies we have no choices.

When we are in a court of law, you will hear the defense attorneys constantly refer to the term "accident". Plaintiff attorneys will use the terms "collision," "wreck," or "crash". Which is more accurate?

In future posts, I will discuss more of the theme of this book. It does not only apply to car wrecks. it also applies to the workplace, public stores, and other commercial establishments. If you are interested in the book, you can purchase it from Amazon.com.

Or, you may call or e-mail our firm, Lewis, Feldman, Lehane & McAtee, LLC, for your free copy.

Originally posted at InjuryBoard by Jon Lewis

Alabama Uninsured Motorist Coverage - Unbelievable!!

Jon Lewis — Thu, 28 May 2009 08:12:00 GMT

Here is a little example of Alabama law which would probably irritate most people if they found themselves in the same situation. It involves a case decided by the Supreme Court of Alabama on May 15, 2009: Kendall v. United Services Automobile Association. The Supreme Court of Alabama ruled according to the law and found in favor of United Services Automobile Association (USAA Insurance).

In Kendall, an employee of Elmore County ran a red light and collided with Mrs. Kendall. Mrs. Kendall had substantial injuries and damages. In fact, her medical expenses exceeded $100,000. Mrs. Kendall made a claim against Elmore County and settled for the $100,000 cap which one may recover from a county in Alabama. She then proceeded to make a claim on her uninsured motorist portion of her insurance policy with USAA.

Uninsured motorist coverage protects you if the defendant does not have enough insurance or has no insurance. This was the case in Kendall because the $100,000 available from Elmore County was not enough to cover Mrs. Kendall's damages. However, the law says you must be "legally entitled to recover" from the defendant in order to recover on your uninsured motorist portion of your insurance policy. Since counties are capped at $100,000, you are not "legally entitled to recover" more than $100,000 from a county. Consequently, you cannot recover any of your uninsured motorist coverage on your insurance policy - which is what the Supreme Court said.

Does this make sense? You are paying premiums every month for uninsured/underinsured motorist protection, and yet, the insurance company is protected if the defendant is protected. This is also true if you run into a deer or a State vehicle. There are other situations as well. Does your insurance agent explain this to you? Of course not. It seems ridiculous, but it's true.

Originally posted at InjuryBoard by Jon Lewis

Uninsured Drivers in Alabama

Jon Lewis — Tue, 07 Apr 2009 13:59:08 GMT

We're Number 3!! As usual, Alabama is leading the charge - in the wrong category. According to an article in the Birmingham News, Alabama ranks third in the nation in uninsured motorists. According to the Insurance Research Council, 26% of Alabama motorists do not carry liability insurance even though it is required by law and has been since 2000.

If it's required by law, how come so many cars are uninsured? According to the article, the law is enforced in three ways: 1) if you are caught driving without insurance, you may be fined by the Alabama Department of Revenue in the amount of $500 for a first offense and $1,000 for a second, and your tag registration is suspended if you are convicted; 2) The Alabama Department of Revenue also sends out random surveys, and you will be fined $100 for not providing proof of insurance on the first offense and $200 for a second offense; and 3) the Alabama department of revenue sends questionnaires to motorists with suspended driver licenses, and if the vehicle is not insured, the registration is suspended.

While these efforts at least make an attempt to enforce the law, they are not enough. In this day and age, shouldn't we be able to set up a system whereby your tag is suspended if you don't have insurance, and if you drive without a tag, the penalty becomes more severe? Many individuals are significantly injured by uninsured motorists every year, and if these individuals are not abiding by the law, they should be penalized. Furthermore, the fines should be pooled together to help the victims of such unfortunate accidents and to help reduce the cost of insurance overall.

What can you do? Increase your uninsured motorist coverage. The cost is minimal, and the benefit could be enormous. Even if the driver abides by the law and has $25,000 in liability coverage, it may not be enough. Medical bills, lost wages, and other damages add up quickly. Be sure you have $100,000 or more of uninsured motorist coverage.

If you have any questions about uninsured drivers or uninsured motorist coverage, please do not hesitate to contact us. We want to know what you are thinking. Give us your comments.

Originally posted at InjuryBoard by Jon Lewis

Dangerous Driving Habits That Can Result in Bicycle Accidents

Danny Feldman — Mon, 06 Apr 2009 12:01:56 GMT

Anyone who has done much cycling will recognize the behaviors described below. Over the next few weeks, I plan to blog in more detail about these behaviors that drivers engage in, sometimes deliberately, sometime not, but to the effect of putting cyclicts in danger of, very often, serious injury. Not to be one-sided, I then plan to blog on a series of dangerous/annoying cyclist's behaviors that have the effect of putting the cyclist in dangerous situations, and serve to annoy drivers. Motorist's behaviors that are annoying/dangerous include the following:

1. Buzzing - driving too close to a cyclist, often within mere inches at very high speed. This behavior typically is deliberate;

2. Right Hook - driver and cyclist traveling in same direction and driver passes and makes a right hand turn directly in front of the cyclist;

3. Turning or Pulling Out Too Close to Cyclist - Driver pulls out from stop sign or light when cyclist has the right of way or driver and cyclist traveling in opposite direction and driver makes a left turn directly in front of cyclist. Although these behaviors are often deliberate, many times motorsists do not realize how fast a bicycle is traveling, thus excerbating the problem;

4. Following too Close - this behavior often happens when a cyclist is traveling downhill at a fairly high speed of 30 - 40 mph and motorist follows behind a mere few feet away;

5. Harrassment - throwing stuff at cyclist; screaming at cyclist; swerving car toward cyclist etc. - always deliebarate; and,

6. Distracted Driver - typically involves driver talking or texting on a cell phone.

In my next series of blogs, I'll describe these behaviors in more detail and give examples of some of the negative outcomes of these behaviors, as well as provide a few thoughts on what can be done to address same.

Originally posted at InjuryBoard by Danny Feldman

Disc Jockey Bike Accident Comments Anger Birmingham Residents

Danny Feldman — Tue, 31 Mar 2009 18:59:00 GMT

Recently there was a bit of an uproar over commenets made by two disc jockeys in the Birmingham, Alabama area. These comments, which basically suggested that it "would be funny" for motorists to run cyclists off the road or "send them flying over the handlebars" generated quite an uproar in the Birmingham cycling community. The post below was sent out by the President of the Birmingham Bicycle Club:

BBC members and Birmingham Cycling Community:

As most of you are well aware, there were some regrettable comments made by talk show hosts on WJOX last Thursday (3/19/09) regarding, and according to some accounts advocating, violence toward cyclists. While I personally did not hear the show, there is little doubt that the hosts exhibited very poor judgment, at best. As president of BBC, I have filed a complaint with the FCC regarding this incident.

In response to a barrage of email and telephone comments from outraged cyclists and listeners, the station has since made 4 on-the-air apologies. They are airing a public service discussion on cycling safety today at 11:00 am. BBC member and attorney Danny Feldman will be a guest on the show Friday. See below for details.

Based on the communications I have been involved in, I believe that the cycling community has made its thoughts known. I do not feel that more emails on this matter would necessarily be productive. However, should you choose to communicate with WJOX, or to otherwise air your opinion on this issue, please remember that your comments reflect all of us. While it is inexcusable that a talk show host advocate unlawful violence against anyone, confrontational communications are not productive. We have seen cyclist versus motorist issues flare up in the past and get out of control. Nobody wins. Please choose your words carefully.

Sincerely,

Barbara

I was given the opportunity to be on the radio last Friday March 27 and spoke for about 10 minutes on the serious consequences cyclists face when they are struck by motorized vehicles. You can listen to the interview by going to our website at www.LFLMlaw.com.

Both disc jockeys (off the air when we talked briefly before and after the interview) stated that they had prefaced their original comments with words to the effect of "assuming the cyclist did not get hurt." Whether this is true or not, I do not know as I have not heard the original comments. That being said, both of these guys readily admitted, both on and off air that their comments were inappropriate, uneducated and ignorant and that they were sorry for making them. The radio station (WJOX) also purchased PSA (public service announcements regarding "sharing the road") and spent some money sponsoring some upcoming local cycling events. In short, I believe that the local cycling communities' vocal and immediate outcry and the station's reaction to same turned a negative incident into a positive one.

Over the next few weeks, I will blog about some particularly dangerous motorist behavior as it relates to bicycle versus motor vehicle incidents. Then I will turn to irresponsible and careless cycling behavior that also contributes to bicycle versus motor vehicle wrecks and accidents.

Danny

Originally posted at InjuryBoard by Danny Feldman