AVERAGE THOUGHTS ABOUT ABOVE AVERAGE BOOKS

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I am trying something new!  A "book review." For my first review I've chosen The Last Hundred Days by Patrick McGuinness.  Here are links to the Seattle Library's website, to the King County Library's website, and to Amazon to purchase it.  To let you know where I am going, I am not going to try to summarize the book in a serious way, instead, I am going to write about 200 words or so letting you know whether I think your time would be well spent in reading this book.

In December of 1989 the Romanian Revolution resulted in the ending of the regime of Nicolae Ceausescu. The central character and narrator in TLHD is an unnamed British man that I imagine to be in his early 20s.  He gets a job teaching at a university in Bucharest, but from there, instead of learning about his teaching and his classes, we learn what the narrator learns about Bucharest, the Ceausescu regime, and what it is like to live in a society characterized by constant surveillance and that is totally saturated by the State.  For me, the most memorable passages come early in the book:

"For all the grotesqueness and brutality, it was normality that defined our relations: the human capacity to accommodate ourselves to our conditions, not the duplicity and corruption that underpinned them.  This was also our greatest drawback -- the routinisation of want, sorrow, repression, until they became invisible, until they numbed you even to atrocity."  

This is not a book overly laden with observations; there is a great story here, and it is through the characters that the reader learns about the Ceausescu regime, and police states generally.  I really enjoyed this book and found it worthwhile.    

PERSONAL INJURY TRIALS

If you're like me, you first encountered the courtroom and jury trials by watching movies, or through television shows. One of the most popular television shows about trials is Law & Order.  Law & Order is about criminal trials; when a person is charged with a crime, a criminal defendant has a right to a trial by jury.  What many people don't know or don't fully realize is that as a general rule, plaintiffs in civil cases have a right to a jury trial too!  Here is the text of the 7th Amendment to the United States Constitution: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."  Washington State's constitution includes something similar: "The right of trial by jury shall remain inviolate..."  The constitutional right to a jury trial intersects with a big topic in personal injury law, namely, the issue of tort reform, or damages caps.  A damages cap is a limit set by the state on what juries can award plaintiffs in personal injury cases.  This means that no matter what the evidence is in a case, or what the jury thinks that a person's case is worth, the decision is taken out of the jury's hands by the state.  As you will expect, I do not agree with damages caps, and I think that juries should get to rule on the evidence as they see it.  Here's a video of Iowa Rep. Bruce Braley dressing down Lisa Rickard of the Chamber's Institute for Legal Reform on damages caps.

LAWSUIT: FAN V. SAN ANTONIO SPURS

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Miami lawyer Larry McGuinness has filed a class action lawsuit on behalf of the 16,000 fans who bought tickets to see the now infamous November 29, 2012 San Antonio Spurs v. Miami Heat game.  You might remember that Spurs Coach Gregg Popovich chose to rest his star players--Parker, Tim Duncan and Manu Ginobli--and that they didn't play in this game.  Larry's theory is that the Spurs deceived fans by failing to advise the NBA and the fans that its star players were not going to be playing in the game. Larry has alleged that the Spurs violated Florida's Deceptive and Unfair Trade Practices Act.  To prove his claim, Larry has to prove that the Spurs committed an unfair practice that caused actual damages to the class members.  Part of Larry's theory of damages is that the class members paid more per ticket to see the Spurs than they would have paid to see the quality of team that showed up on November 29, 2012, i.e., the Spurs without their best players.

Honestly, I don't hate this lawsuit.  I think it is interesting.  Lots of slippery slope questions come to mind though, for example, if Larry wins, will there be a notice requirement for teams to report injuries to fans and to the NBA?  Could this lawsuit stop pre-draft tanking?  Here is a link to Larry's complaint.  

INSURANCE COMPANIES: DELAY

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Delay.  We are used to delays.  Delays are frustrating, they show up and impede our ability to get where we are going, or to do what we want to do.  However, delays are also, normally, unrelated to our specific, individual goals and plans.  They are normally a biproduct of some larger operation, take, for instance, a traffic light.  Traffic lights delay our travel, but municipalities do not operate traffic lights to cause us harm, when traffic lights operate properly they contribute to an organized and safe flow of traffic.  So, we tolerate the individual delays caused by traffic lights because we understand their function. Unlike this acceptable kind of delay, the delays caused by insurance companies are tactics, they are weapons designed to break your resolve, and to otherwise advance the insurance company's interests ahead of your own.

Insurance companies delay everything.  They delay responding to reports of claims, fairly analyzing claims, providing the basis for their decisions, and, if an insurance company becomes involved in a lawsuit, things get even worse.  Then, claimants encounter an entire new package of delays, nearly all of them having to do with discovery, and honest, fair settlement negotiations.  For this, and for many other reasons, Washington has attempted to level the playing field to give claimants a fair chance through what is called the Insurance Fair Conduct Act.  This law works in the favor of individuals, to give individuals protected rights against insurance companies.  Some of these rights of individuals relate to the goal of protecting individuals from unreasonable delays caused by insurance companies.  Here is an example of a specific protection for individuals, to help individuals in the face of insurance company delay:

"The following are hereby defined as unfair methods of competition and unfair or deceptive acts or practices of the insurer in the business of insurance, specifically applicable to the settlement of claims:

(16) Failing to adopt and implement reasonable standards for the processing and payment of claims after the obligation to pay has been established....[P]rocedures which are not designed to deliver a check or draft to the payee in payment of a settled claim within fifteen business days after receipt by the insurer or its attorney of properly executed releases or other settlement documents are not acceptable.  Where the insurer is obligated to furnish an appropriate release or settlement document to a claimant, it must do so within twenty working days after a settlement has been reached."

WAC 284-30-330(16).  What this means - in part - is that insurance companies enter a world of pain if they settle claims, and then withhold the settlement funds, or the settlement documents following a settlement.  Of course, just because a specific practice is prohibited, doesn't meant that an insurance company won't try to get away with doing it.  Delay in providing settlements funds, or settlement documents, is incredible frustrating.  For many clients, getting the settlement funds promptly is important, especially if the client is facing financial difficulties.  At the end of a case, clients often feel like they have been through a lot, and that they have jumped through hoop after hoop in order to met all of the obligations that are part of the claims process. For these clients, it is incredibly frustrating to call their personal injury lawyer, to ask about the settlement funds, and to find out that the insurance company is playing games with the funds.  The key is to anticipate the headaches caused by the delay of settlement funds and settlement documents before these delay tactics begin.  Many tools are available to attorneys to do this, including, to build requirements and sanctions into the initial settlement agreement at the time settlement is reached, to create the proper incentives for the insurance company to behave reasonably.
   

Justice Scalia: "Because we have an agreement which says that the insurance company gets all the money."  

(Read: "Where's the money, Lebowski?")  

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On November 27, 2012, the United States Supreme Court heard the case of US Airways, Inc. v. McCutchen.  By "heard," I mean that the attorneys for the parties argued their positions to the Supreme Court.  This case is very important, and the Court's decision will have a great impact on personal injury cases involving health insurance plans.  Here's how.

First, what is subrogation?  If you don't know, don't feel alone, some of the Justices asked the attorneys arguing the case the same question. Subrogation is a general term for a right of reimbursement.  Subrogation is a doctrine that courts use to allocate responsibility for payment according to who should bear the cost.  In the insurance world, subrogation occurs when an insurance company makes a payment that someone else is obligated to pay, and then tries to recover its payments.  Separately, a right of reimbursement is a right to be reimbursed for payments made, from specific funds.  In personal injury cases, the fund is the settlement that the injured person recovered from the at-fault party.

Health insurance companies often insert language into the insurance plan with the intent of creating a right of reimbursement.  These insurance companies want to be reimbursed for the medical benefits that they pay from funds obtained from third parties (i.e. the at-fault driver's auto policy, or the injured person's auto policy).  This is particularly true of what are called ERISA plans. ERISA is a federal statute that governs certain employer maintained health plans.  ERISA is complicated and lengthy, and it is often the subject of Supreme Court review.  It was again in McCutchen.  The issue in McCutchen was whether a court has authority to deny an ERISA plan full reimbursement for benefits, even though the plan language provides for full reimbursement.  To put a fine point on the issue, the following is a simplified version of a factual scenario that could give rise to this issue: (1) X has health insurance through his employer's plan; (2) the plan is an ERISA plan; (3) Y drives negligently and injures X; (4) X's health insurance plan pays for some of his accident related medical treatment; (5) X obtains a settlement from Y; and (6) X's health insurance company demands its payments made, from X's settlement.

In reading this, you might be surprised to learn that such a thing is even possible.  That is, that your health insurance plan may go years collecting premiums, and then, in the event that it is obligated to pay for your medical care, recover its payments made from you.  After all, you hired a personal injury attorney, you took on the risk of obtaining a recovery from the negligent driver, you took on the cost of obtaining a recovery, and while your case was progressing, the plan sat back, collected more premiums, and took no action to make its recovery.  Then, at the end it demanded a recovery without having shared in the risk or cost that you took on in obtaining the recovery.  What's worse, the plan's recovery might deprive you of full compensation, depending on how your case turned out.  In McCutchen, it was particularly ugly as due to the limited insurance funds available, and after attorney fees, McCutchen recovered less in settlement than the demand from his health insurance policy for reimbursement.

Courts have found this result unfair, and in Washington, courts have tools to resolve the unfairness.  For example, courts in Washington rule that because the insurance company is obtaining the benefit of the injured person obtaining a recovery (i.e. reimbursement), the insurance company is required to share in the cost of obtaining the recovery, including in the injured person's attorney fees and costs.  Only fair, right?  Unfortunately, ERISA jumps in and preempts (displaces) state law, meaning that an ERISA plan can avoid state laws, like the Washington cost and fee sharing law.  If successful, the ERISA plan can then recover its payments made without sharing in the cost of recovering them.  So again, the question in McCutchen is whether the court has authority to refuse to order full reimbursement to the ERISA plan, and require the ERISA plan to share in the costs of recovery.

Why does this matter?  It all goes back to how many hands are going to reach into your settlement, and what are they allowed to take.  If the Supreme Court in McCutchen rules that courts have no authority to apply longstanding doctrines designed to produce fair results, then ERISA plans win, they obtain full dollar for dollar reimbursement, and they can deprive injured people of their settlements.  If McCutchen wins, then individuals win, they get to keep their settlements, and all the insurance companies get is the premiums that you pay every month...wait, what's wrong with that?

P.S.  The quote at the top is Justice Scalia's explanation for why the plan should get what it wants, i.e. full reimbursement.

CIVIL REMEDIES FOR CRIMES

Florida's criminal law of Trespass and Larceny with Relation to Utility Fixtures; Theft of Utility Services has received quite a bit of national attention due to a November 11, 2012 arrest under this charge by a Sarasota police officer.  The alleged facts, as described in the officer's police report, are straightforward.  My abbreviated summary of the allegations is that an officer approached a group of people appearing to be homeless, and smoking what the officer thought might be marijuana, in a park.  The officer placed one of these individuals in custody, and after observing a broken electrical outlet cover on a gazebo in the park, and hearing the individual's comment that he wanted to retrieve his phone that was plugged into the outlet, he arrested the individual for theft of utilities (i.e. the electricity that was charging his phone).  If you follow the link to the statute to read it, you will see that it really is longer than it needs to be, but it certainly does prohibit theft of utilities under certain circumstances.  Florida's code authorizes punishment for theft of utilities of a jail sentence of up to one year, and of a fine of up to $1,000.00.  However, the last report that I read indicates that the charge has been dismissed.  

My question is, what could have, and should have happened to the charge if it wasn't dismissed?  If it occurred in Washington State, at least one potential way to resolve the charge would have been a procedure commonly referred to as a compromise of misdemeanor.  In Washington State, a compromise of misdemeanor is a mechanism for resolving a misdemeanor criminal charge, with civil remedies. When it applies, it works as follows: the injured party (here, Sarasota City) appears in court and acknowledges in writing that it has received satisfaction for the injury (payment), then the court may order the proceedings discharged, and the defendant cannot be criminally charged for the same offense based on the incident.  What the injured party gets out of the deal is the primary remedy that a civil court would have awarded, compensation, what the offending party gets is to avoid the risk of a criminal conviction, and what the state gets is the accomplishment of seeing that the injured party was made whole, without bogging down the courts.  While a dismissal may have been appropriate in the Sarasota case, in many other misdemeanor cases, a compromise of misdemeanor is a win for all involved.    

PAYBACK CLAIMS

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The topic of payback claims is both simple and complicated at the same time.  First, everyone knows what it means to pay someone back.  The common understanding of paying someone back is as follows: X gives Y five dollars, later, Y gives X five dollars to pay X back, possibly, with interest. How does this simple concept apply to personal injury claims?  With much regret, we are now required to dip our toes into the shallow end of the pool on some issues relating to our health care system.  Let's take the issues in order, with simplified answers.

1.  What is health care?  I am going to give you the inside the box definition first: the maintaining and restoration of health by the treatment and prevention of disease, especially by trained and licensed professionals.  The outside definition of health care will be a nice segue to our next issue, courtesy of Urban Dictionary: a mythical beast often associated with the care of humans.  Often appears only to those who already have the necessary means to adequately take care of or pay for things.  Examples of this mythical beast include primary care doctors, orthopedists, neurologists, physical therapists, chiropractors and massage therapists.

2.  How is health care paid for?  The answer to this question is only limited by the creativity of those participating in our free enterprise system.  However, the big categories of payers are individuals (you and me), private insurers (auto insurers like PEMCO, health insurers like Aetna), and state and federal programs (Medicare, Medicaid, and TRICARE to name a few).  

3.  When do these health care payers have payback claims that relate to a personal injury case?  Our topic now begins!  Health care payers may have payback claims of some kind, including claims against the person receiving the health care, when they pay for health care for which some other person or entity is responsible.  For example, take a car accident case: X drives negligently and hits Y's vehicle, Y is injured and obtains health care, part of which Y's auto insurance company pays for, and part of which Y's health insurance company pays for.  Y resolves her personal injury case with X and obtains a settlement.  The payers, Y's auto insurance company, and Y's health insurance company, may now have claims against Y because they paid for health care for which X is responsible.  In other words, Y's insurance companies will try to recover their payments for Y's health care, from Y.  (Note: Y is not the only person against which these insurers may assert potential payback claims, others include X, and X's auto insurance company.)  The job of Y's personal injury attorney is to totally eliminate, or limit, Y's insurance companies' payback claims.

What does this all mean for the injured person?  It means that you are going to need a good personal injury attorney to continue the fight for some time after the case against the "defendant" concludes.  An agreement to pay compensation by the defendant may take care of what the defendant is interested in, closing your case, but it certainly doesn't complete what you are interested in, that being, getting as much of the funds that are intended to provide you with compensation, actually into your hands.  In my next entry, I am going to discuss what a good personal injury attorney can do on your behalf, after your case against the defendant concludes.  I will also include examples of applications of certain rules that attorneys can use on your behalf, to make all of this more definite, and concrete.

Friday, casual note!  I am just about to finish The Last Hundred Days, by Patrick McGuinness, which I really do recommend.  Full disclosure: I have always been very interested in the Cold War.