Author Archive

My Right to Remain Silent – And, No “Papers” Either Copper!

Olympia, Washington attorney Legrand Jones refused to provide police his identification and was then arrested and charged with trespassing and obstructing a police officer. He told the media “I don’t have to show my papers on demand. I don’t live in that kind of world.” (I can’t refrain from pointing out that if you follow the Jones link above, it displays his accomplishments and photo next to a generic-type photo of a person being forcibly arrested. A potential client, perhaps?)

Seriously, though–I agree that if you’re minding your own business and accosted by a police officer demanding identification you have the perfect right to continue on your merry way. The story suggests a slightly different twist–that he was allegedly trespassing on Port property when approached by the police officer who then requested identification. Perhaps some law enforcement or criminal defense law experts out there can shed some light on Jones’ defense. (“Arrested lawyer argues people don’t have to show police ID”, AP/Seattle Post-Intelligencer, Aug. 7).

Update: Commenter gitarcarver identified a more comprehensive account of the allegations (“Olympia attorney argues against anti-war protest arrest”, The News Tribune.com, Aug. 12).

Guest Blogger This Week

Hello again!  Walter Olson has welcomed me back to help fill in while he’s away.  Don’t forget to check in at Overlawyered’s sister site, PointofLaw.com which also has a guest blogger this week.  I’ll hit some high points on joint & several liability, wrongful death and might even pick on John Edwards a bit.  You’re welcome to send along any story leads, with special encouragement for leads not picked up on by the national media–many of which come from your local paper or television station.

Today’s Tidbits

$600 per class member for defective brakes; $4.1M attorney fee claim

See this story via Law.com. No problem with consumers getting a few hundred dollars to offset the cost of a brake job. A healthy $5.6M verdict provides such remedy for over 9,000 class members. The rub? A $4.1M attorney fee claim, which according to my arithmetic is ten lawyer-years in work, at a respectable $200/hr. Oh, and check out the defendant attorney’s brilliant lawyering in his appeals brief, referring to the trial judge as the “Red Queen” from Alice in Wonderland. It wouldn’t be so bad had the appeals court not remanded the attorney fee issue back to that very trial judge.

Mean-spirited protest of funeral for fallen United States Marine prompts suit

The story is here. That anyone would express their protest in this manner is truly shameful. Update: $10.9M verdict!

Law says wife is husband’s property

Slighted spouse sues his wife’s lover for “alienation of affection.” Law says wife is a man’s “property.” Story via ABC.com.

A law written by attorneys, for attorneys

I previously posted on Washington’s Insurance Fair Conduct Act, known as Referendum 67. If passed by the voters, it would allow first party claimants to recover triple damages and attorney fees for those claims “unreasonably” delayed or denied.

Existing law already allows a wronged insured to bring three separate causes of action against his/her insurer for such claims: breach of contract, bad faith and violations under Washington’s Consumer Protection Act (CPA). Such existing remedies often yield bizarre results as we saw in the Woo v. Fireman’s Fund case.

The Supreme Court’s knuckleheaded 5-4 ruling upheld a judgment to pay Woo $250K he paid to settle an underlying suit, plus $750K in emotional distress and attorney fees. Obviously, there are already plenty of incentives for an insurer to avoid these judgments by acting fairly, and under this legislation Woo could have received three times more as punitive damages in addition to the “emotional distress” damages which have a punitive measure built into them. And in case you are wondering, Fireman’s Fund coverage position was perfectly reasonable.

The television ads for the Approve 67 camp are demagogic and misleading, if not outright lies. The worst has to be the ad featuring Tiffany Forslund whose father, firefighter David Potter, died allegedly because an insurer delayed payment for necessary health treatment. Forslund says:

My father would have given his life in the line of duty, turns out the insurance company took it instead.

What tripe. Not only would R-67 not apply to her father’s claim (it is intended to benefit auto, home and property policies–not health insurance) it’s not true according to the mayor of the city for which Potter worked, who said it would be covered as a workers’ compensation claim or through the city’s health plan. But the attorneys promoting this legislation could not resist such a sympathetic story of a firefighter allegedly killed by an insurance company, even if it’s entirely off-point and probably untrue. Demagoguery at its finest. And, if the claim is true Potter’s family already has remedies under existing law for emotional distress, which, for a lost loved one are rightfully substantial and the threat of such judgments deter wrongful insurer conduct. Why shall we now triple those damages?

Attorney fees are typically one-third of the gross recovery. So if the gross recovery is tripled it equals a bigger fee. But let’s say the insured prevails but the gross recovery is small? No problem. Just submit your fee request to the court on an hourly basis if it provides a greater recovery for the attorney. And, here’s another little tidbit: the attorney fee provision is mandatory but the triple damages are at the court’s discretion. Who’s looking out for who here, really? And, that the triple/punitive damages are for the deliberately vague “unreasonable” and not for criminal, willful or wanton conduct as you would expect (and would be deserved) to award punitive damages makes for a juicy tidbit indeed.

And, there’s no crisis in the first place. Check out this link from the Insurance Commissioner of Washington State showing the number of complaints against individual insurers. In 2006, Private Passenger Auto Insurance Complaints averaged one complaint for every $1.5M in premium and Homeowners Insurance Complaints averaged one complaint for every $2.5M in premium. Hardly a crisis, and nothing worthy of threatening triple damages in every instance.

This legislation will enrich those attorneys bringing these suits, bring a windfall to a small number of insureds at the greater expense of all who pay insurance, directly or indirectly.

More Tidbits

Jackpot justice of another kind

A man on the nickel slot machines wins over $1M despite the maximum payout of $2,500. The casino blames computer error. The story shows a picture of the stoic gambler in front of the cordoned-off slot machine.

Etiquette expert pranked in ‘Borat’ sues

Yes, another ‘Borat’ suit, here. As the story points out, why wait so long? Come on, folks, jump on the bandwagon!

Wrong doctor sued, pays out of pocket due to Med-Mal policy deductible

Sue the wrong doctor and drag out the litigation process, all to the detriment of the defendant. The story notes that courts rarely find suits are frivolous because “there’s almost always some grounds for a suit to be filed.” (Update: Jan. 6).

Federici v. U-Haul

Here is an interesting but tragic case currently in trial in King County, Washington. Maria Federici, a then 24-year-old woman was gravely injured when an entertainment center flew from a U-Haul trailer attached to a vehicle operated by another motorist. It smashed through the windshield of Federici’s following vehicle, striking her in the face crushing every bone in it. She suffered blindness and permanent disfigurement. Media accounts are here, here and here.

I’m not posting to criticize Federici’s suit per se. It has noteworthy flaws to be sure–for instance there is evidence suggesting her blood alcohol content (BAC) was above the legal limit while she was driving, but the BAC was obtained under circumstances suggesting the results were unreliable (the injury trauma and resultant blood loss may have affected the BAC.) And her boss testified that she had only one glass of wine prior to the accident. Notably, the court disallowed the BAC evidence at trial.

So, Federici sues the motorist who failed to tie down the entertainment center, U-Haul and the rental company for alleged design flaws in the trailer and alleged negligent rental practices. Okay, so the motorist can own up for his negligence and U-Haul and the agency can own up for theirs, right? Not so fast. Washington State allows for a fault-free plaintiff to recover all damages from any defendant even 1% at fault.

With or without evidence of intoxication I wonder if Federici could have avoided anything flying toward her while traveling at freeway speeds. So, let’s assume the jury assigns her zero fault. That leaves 100% of potential fault for the defendants. Now, if you read the media accounts it seems to me that the motorist carries the majority of any fault for failing to secure his load, causing the accident. But, who has the deepest pockets? Let me help you: it’s not the motorist.

The plaintiff attorney in this instance will pull out the stops–do anything–to implicate U-Haul, and to a lesser extent the rental agency for any little amount of liability they can so that his client can collect the entire judgment from them (I suspect U-Haul has sufficient assets; the rental agency, if the Mom-and-Pop type, maybe not.) I don’t blame the plaintiff’s attorney, really–he has to advocate his client’s interests. But, it shows how twisted and wrongheaded the joint & several statute is in Washington. Nothing against Federici here, she’s suffered enough. But I struggle with holding some people accountable for damages caused by others. Does this make any sense to you?

Let’s look at the Mission Statement for the American Association for Justice (formerly the Association of Trial Lawyers of America):

The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests.

I’m all for that! Especially that part that says “fair”. Is it fair to hold a 1% wrongdoer accountable for 100% of the damages? If so, why? Because I don’t agree and I’d like to know if I’m wrong. And, I just know the AAJ would scream bloody murder if anyone tried to amend that statute.

Legal Tidbits for Thought

Don’t make his art the butt of your jokes

Spotted by Lowering the Bar and story here and if you dare, here’s the link. AP story excerpt:

A high school art teacher fired after officials learned he moonlighted by creating paintings using his bare buttocks and other body parts sued his former employers on Thursday.

Workers’ Compensation Appeal Board finds politician aide’s media criticism of him did not constitute “abnormal working conditions” and upheld a decision denying him benefits

The Court’s decision is here. The decision was purely on the merits of the compensability of the workers’ compensation claim, so there is no mention if he sued for libel.

Soldier dies after entering operating hotel air conditioning unit; family wants $10M

The story is not entirely clear on if the unit in which he was found was marked with a warning sign or not, although it suggests that it was. The suit claims the hotel was negligent (what a shock) for failing to post appropriate signs and lock doors. You’d think the whirring blades would give a clue it’s not the brightest place to be. Oh, his blood alcohol level may have been a factor (see the story.)

Broken Heart? Sue!

Thanks to Walter Olson for welcoming me back after a short hiatus from my last guest blogging stint. I often see stories worth sharing, this one in particular [excerpt below, full story here.]

A group of well-heeled women who paid up to $1,500 to snag a man through one of the nation’s priciest and fast-growing online dating services — It’s Just Lunch — has filed a civil lawsuit in Manhattan federal court, claiming the lunchtime setups were not what they bargained for.

This reminds me of this hilarious YouTube clip which is strikingly on point in this instance. Overlawyered indeed. And, $1,500 for a date? That’s about as out-of-touch as $27K for wedding flowers (with accompanying lawsuit.) Well, these “well-heeled” women expected George Clooney but (apparently) got Gilbert Gottfried instead. Maybe, simply, their hopes were just too high. Especially if they were prepared to fork over $1,500 for a date. Caveat emptor, I’m afraid.

Cheater’s Poetic Justice / Guestblogger Sendoff

Check out this story about a man’s alleged infidelity exposed after 1-800-FLOWERS mailed him a thank you note for flowers he purchased his girlfriend. His wife found the note, called the florist who faxed the receipt detailing the recipient.

So, she files for divorce and he sues 1-800-FLOWERS for breach of contract for revealing the relationship. Now, I don’t suppose this claim has much jury appeal–a cheat asking for money? A million dollars? His attorney frames the issue this way:

Infidelity is one of the things that would qualify as a pendulum-swinger in a divorce case. And now the wife has cold, hard evidence, and it is solely because of 1-800-FLOWERS.

It may be the florist’s fault she has the evidence but it’s “solely because of” him that he did it. So much for personal responsibility. I wonder how many taxpayer dollars will be wasted in this litigation.

My guestblogging stint here is over, and I really enjoyed it! Thank you Walter Olson! I part with this quote, a compliment to the fine attorneys I have and continue to work with:

If I have seen further [than others] it is by standing on the shoulders of Giants.

Sir Isaac Newton 1642-1727

More on Insurance Fair Conduct

My last post commented on Washington’s Insurance Fair Conduct Act. The Act is up for public vote as Referendum 67. Check out the web sites advocating approval or rejection of the measure.

The “Approve 67” web site struck me as a bit demagogic–the main page shows a young girl clutching a teddy bear being comforted by (apparently) her father. The next shot is a man in a wheelchair, face cast sullenly downward. (Ostensibly suffering from insurance company malfeasance.) The final shot is a generic image of an emergency clinic. Then, under the “Take Action” column on your left there’s a link to “Share Your Insurance Horror Story.” (As of this writing there is a grand total of three “horror” stories.)

Under the endorsements tab, trial lawyers are notably absent–at least from the list. There are, however, multiple labor organizations as well as the Washington State Democratic Party. Under the “About Referendum 67” tab [with my comment]:

If an insurance company unfairly denies a legitimate claim, your only recourse is to sue. But if you win, the only thing they have to pay is the amount of the original claim [not true, just ask millionaire prankster dentist Robert Woo.] Referendum 67 creates an incentive [there already are incentives: coverage by waiver or estoppel, Olympic Steamship attorney fees and the Washington Consumer Protection Act (CPA)] to treat legitimate claims fairly by allowing the court to assess penalties if an insurance company illegally denies or delays payment of a legitimate claim.

Referendum 67 would help to ensure that the insurance industry honor their commitments to treat all policyholders honestly by making it against the law [it’s already against the law, silly–see the existing RCW and WAC] to unreasonably delay or deny legitimate claims.

The News Tribune in its story Let’s not try to fix an insurance industry that’s not broken says:

That the system is working well is illustrated by a storm of a different sort: the windstorm that smashed into Western Washington earlier this year. Within less than four months of the event, according to a recent study, 90 percent of the 42,000 claims were settled, for $170 million in compensation. Most of the remaining claims remained unsettled due to lack of qualified contractors or the time needed to rebuild homes. Only three complaints were filed with the insurance commissioner’s office.

I don’t know if I would characterize this legislation as a jackpot for trial lawyers, but it’s probably unnecessary and will increase the frequency of litigated first party claims at the greater expense of the insurance paying public. It’s up to Washington voters to get it right.