Small Widget Spot

April 13, 2017

Life Insurance Twisting is Financial Elder Abuse

Insurance Twisting is Financial Elder Abuse

Insurance Twisting is Financial Elder AbuseUnfortunately, stories of elder abuse, where someone who is elderly is physically mistreated by family, friends or a medical facility, are common. The stories can be gruesome about neglect, lack of caring and other wrongs committed on the elderly. However, a more prevalent form of wrongdoing involving the elderly is financial.

Here is a Story

Mr. and Mrs., 74 and 72 respectively, purchased several life insurance policies over the years as part of their estate plan. The policies were variable life, which means that part of the premium paid covered the cost of insurance and the rest went into mutual funds to allow the policies to build up cash value over the years so that, at some point, they would no longer have to pay premiums to keep the policies in force, assuming a reasonable return on their investments.

The Plan Worked

The plan worked for them. After 20 years their policies had significant cash value and, given a continued rate of return of 7%, the policies would sustain themselves and pay on death to a trust. The trust would benefit the surviving spouse and pay any remaining sums to their children. Both Mr. and Mrs. had policies on their lives to protect the other.

The plan continued working well until an insurance agent contacted them and told them he could increase the amount of life insurance protection with no increased cost of insurance and without payment of any premiums. He proposed a tax free (i.e. no taxes would have to be paid if they cashed in the old policies) “exchange” of the old policies for new ones through a different company. There would be no insurance and the cash from the old policies would support the new policies. They bit. What a good deal, they thought.  More insurance for the survivor, and it did not cost any more than they were already paying.

Too Good to be True?

Well, the old saying: “If it sounds too good to be true, it probably is,” was applicable to this bit of fraudulent conduct by the agent. What he did not tell Mr. and Mrs. is that, as a result of the exchange, the cash value of the new policies would be less than the old, and that it was likely these policies would lapse (because they would require a significant amount of new premium) within the next couple of years, well before either Mr. or Mrs. was likely to die. They were both in good health (otherwise it was unlikely that any new company would accept their application for the exchange).

Why a diminished cash value? Because the new policies had a higher cost of insurance since the death benefit was increased, and there were surrender charges applied by the old company, which reduced the amount of cash going to the new insurer. Thus, there was less money to pay premium and also less money for the investment part, which was supposed to help continue to build cash value. There are also taxes and other charges for the new coverage and other negative features which make the exchange “unsuitable” for Mr. and Mrs.

Unsuitability Violation

In short, the agent should have never made the sale, nor should the new company have accepted the exchange because of this unsuitability and inappropriate replacement of the old policies for brand new ones.

In California, what the agent and insurance company did violates our Insurance Code, section 785, which states that: “All insurers, brokers, agents and others engaged in the transaction of insurance owe a prospective insured who is 65 years or older, a duty of honesty, good faith, and fair dealing.” In addition, our Welfare & Institutions Code, section 15610.30, prohibits financial abuse of an “elder or dependent adult.”  An “elder” is someone 65 years of age, while “dependent adult” is defined by the circumstances of financial or physical dependency.

Insurance Twisting

The definition of financial abuse is lengthy, but, arguably, it covers the “twisting” of one insurance policy into a new policy using the cash value of the former, when this transaction is to the financial detriment of the insured or beneficiaries.  It applies where the perpetrator “assists in taking [or] appropriating ¼ personal property of an elder or dependent adult ¼.”

Financial Elder Abuse

What the agent and the insurer did here is a form of financial abuse, which occurs when a victim is spotted who has significant cash value in older life insurance policies which have built up over the years. If you or someone you know is in the position that I have described in this article, be sure to alert them to the possibility of an unscrupulous insurance agent attempting to move the cash out of the older policies to newer ones.

Any proposed transfer of cash should be reviewed carefully. In most cases, it will not be suitable, but a determination by an independent financial advisor, such as a CPA or certified financial planner should be completed before agreeing to make the exchange.

And, if this has already happened, or you suspect it has to a loved one or friend, call our office for a free consult. There are legal remedies available in California for those who suffer this form of financial elder abuse.

April 4, 2017

What it Means to be Board Certified in Civil Trial Law

National Board of Trial Advocacy, Guy O. Kornblum, Charlie Cochran, Joe Harbison

KCEH is both unique and fortunate to have three of our principals Certified in Civil Trial Law by the National Board of Trial Advocacy. Guy Kornblum, Charlie Cochran and Joe Harbison each have achieved this level of both recognition and achievement. Certification means that each has fulfilled a rigorous qualification process.

To earn Certification in Civil Trial Law, the attorney must:

  1. Furnish evidence of his or her good standing in the state of his or her bar admission, or if admitted in more than one state, in the state of his or her principal practice.
  2. Show that immediately preceding application, the attorney has five years in the actual practice of Civil law (Guy, Charlie and Joe have combined over 100 years).
  3. Make a satisfactory showing of substantial involvement in civil trial law, with at least thirty percent of his or her time spent practicing civil trial litigation during the three years preceding the filing of the application.
  4. Make a satisfactory showing of substantial involvement relevant to the particular specialty certification by personal participation in at least forty-five days of trial (a day of trial is not less than six hours) during which the applicant examined or cross-examined witnesses, delivered an opening statement or closing argument or conducted a voir dire jury examination.
  5. Show that during the forty-five or more trial days the applicant must personally have:

(a) served as lead counsel in at least five jury cases;

(b) substantially participated in at least five jury cases which have proceeded to verdict;

(c) presented at least four closing arguments;

(d) presented at least eight opening statements;

(e) conducted cross-examination of at least fifteen expert witnesses;

(f) conducted direct examination of at least fifteen expert witnesses;

(g) conducted cross-examination of at least twenty-five lay witnesses;

(h) conducted direct examination of at least twenty-five lay witnesses; and

(i) conducted at least five voir dire jury examinations or (in courts which do not permit counsel to conduct voir dire examination) submitted proposed jury questions for the court at least ten times or a combination of examinations and submissions acceptable to the Standards Committee.

In Addition:

  1. The attorney must have actively participated in one hundred additional contested matters involving the taking of testimony (cases included in your substantial involvement may not be included as part of your contested matters). This may include trials (jury or non-jury); evidentiary hearings or depositions; and motions heard before or after trial, which may include arbitration hearings, welfare hearings, and workers compensation matters not tried to a court.
  2. The attorney must demonstrate substantial participation in continuing legal education and the development of the law with respect to the specialty, in the three-year period immediately preceding application either:

(a) By attendance and/or electronic participation in not less than forty-five hours in programs of continuing legal education in the specialty or ethics, approved by the Standards Committee, or

(b) By equivalent participation through, but not limited to, the following means, approved by the Standards Committee:

(I) Teaching courses or seminars in trial law or ethics;

(II) Participation as panelist, speaker, or workshop leader, at educational or professional conferences;

(III) Authorship of books, or of articles published in professional journals, on trial law;

(IV) A combination of the three subsections above.

References, Examination, and Application:

  1. The attorney must submit the names of ten to twelve references substantially involved in the relevant field of trial law, and familiar with the applicant’s practice in that field including at least three judges before whom the applicant has tried a matter in the relevant field.
  2. That attorney must pass a written examination to test his or her proficiency, knowledge, and experience in civil trial law, so that the applicant may justify his or her representation of specialization to the public.
  3. The attorney must submit a copy of a legal writing document, no more than three years before the date of application which he or she has prepared, but not necessarily published. The quality of the legal document will be evaluated to help determine whether the applicant is qualified for certification. The rules provide that “[t]his will be a substantial document in the area for which the applicant seeks certification, containing concise and accurate writing, stating facts (either actual or hypothetical), stating applicable law, analysis of how the law applies to the facts, written in an appropriately argumentative manner and well constructed (i.e. organized, grammatical, demonstrative of good syntax and usage) . Acceptable documents include, but are not limited to: briefs (trial or appellate), motions for summary judgment, bar journal, law review and legal magazine articles, motions in limine, etc….”

These requirements have changed some over the years, but Guy, Charlie, and Joe fulfilled those that applied when they were certified. And more important they have continued to be re-certified every 5 years in order to maintain this certification.

We are very proud that our firm has 3 principals who have achieved this level of performance in Civil Trial Law, which is unique for a firm of our size.

March 13, 2017

Waivers in Personal Injury Cases

Guy O. Kornblum

Guy O. KornblumWhere there are fitness, recreation, and sports activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in two ways. First, they should take steps to reduce the likelihood of injury as much as possible. Secondly, they should do everything possible to protect themselves and their business entity from the risks of financial loss. A major financial risk is that of lawsuits by parties injured while participating in fitness, recreation, or sports activities.

Injuries in fitness, recreation, and sports activities arise from three sources. They result from either 1) accidents due to the inherent risks of the activity, 2) negligence (errors or mistakes) of the provider, co-participants, or others, or 3) extreme actions such as gross negligence or reckless actions. Generally, the provider is not liable for injuries resulting from the inherent risks of the activity, however, they are held liable for injuries resulting from their own negligence. A waiver can protect the provider from liability for injuries caused by provider negligence. A waiver generally does not protect the provider from liability for extreme actions.

Liability waivers, contrary to misconceptions of providers in the past, can be effective in protecting providers from liability for injuries resulting from the negligence of the provider. Waivers are inexpensive to obtain, easy to administer and store, and can help protect providers from the consequences of their own mistakes.

What is a Waiver?

Legal terminology can sometimes be confusing. A waiver is a contract between the service provider and the participant signed prior to participation by which the participant agrees to absolve the provider of any fault or liability for injuries resulting from the ordinary negligence of the provider, its employees or its agents. The agreement relieves the provider of liability for injuries resulting from mistakes, errors, or faults of the provider and, in effect, relieves the provider of the duty to use ordinary care in providing for the participant.

The reader, however, will often encounter other terms such as release, disclaimer, and exculpatory agreement. These terms are usually used synonymously with a waiver and while there are minor differences, they are usually referring to the same type of agreement. Another common document is the informed consent agreement. Although some erroneously use it instead of a waiver, the informed consent is a different type of agreement. It is used to protect the provider from liability for the informed treatment risks of a treatment or program to which the individual agrees to be subjected (e.g., medical treatment, therapy, experiment, training program). In general, they are used when something is “done to” the individual. These are used in medicine and research and have recently been used by personal trainers.

Does a Waiver Work?

The answer to this is Yes and No.

  • Waivers do work in most states, but not all. In states where they work, they usually work under certain circumstances, but not all.
  • A number of factors can cause a waiver to fail. Some of these include: 1) When the service is an essential service or of public interest        (e.g., medical care, electric or water service);

2) When one party has superior bargaining power over the other        (e.g., teacher-student, employer-employee);

3) When the conduct is beyond ordinary negligence (e.g., gross         negligence, reckless conduct, intentional acts);

4) When the waiver is to relieve one of a statutory duty;

5) When the waiver is not clear and unambiguous in its intent; 6) When fraud or misrepresentation is involved.

Waiver law is state law and, as such, differs greatly among states. In most states, a well-written, properly administered waiver, voluntarily signed by an adult, can provide service providers with protection from liability for injuries resulting from the ordinary negligence of the provider, its employees, and its agents. It is important that the reader remember three things about the above classification of the states: 1) although the classification is based upon about 900 waiver cases, the ratings are subjective and subject to disagreement among experts; 2) the law in each state is always subject to change (One new state supreme court decision could change the classification of a state overnight); and 3) that not all waivers protect in the lenient states and not all waivers fail in the strict states.

Why do Some Waivers Fail?

In any state, a waiver can fail for a number of reasons. A few of these reasons are explained below.

Language Requirements. The most common reason that waivers fail is because they are poorly written. A key guideline required in all states is that the waiver language be clear and unambiguous. If the waiver does not clearly specify the intent of the parties to release the provider from liability for negligence, the court will not enforce the waiver. Note, however, that what is considered clear and unambiguous varies from state to state. For instance, some states require the waiver to state that the signer is releasing the provider from “negligence” and must include the word “negligence.” Courts in other states do not require, but strongly encourage the inclusion of the term. Still other states simply say that as long as the intent is clear, the specific language is unimportant and accept such language as “release from any and all claims.”

Extreme Acts. Courts in most states enforce waivers of liability only for “ordinary negligence.” Courts in these states hold that enforcement of a waiver when the action resulting in the injury was gross negligence, reckless conduct, willful/wanton conduct, or an intentional act is against public policy.

Unequal Bargaining Power. Waivers are not generally enforced if one of the parties has a clearly dominant bargaining position. Examples would include a coach requiring a waiver of his players, a teacher and a student, and an employer and an employee. Courts generally hold that recreation, fitness, and sports waivers do not involve a clearly dominant position (e.g., health club waivers, waivers for a rafting trip, waivers to go into the pit area of a racetrack, waivers for skiers, and waivers to play recreational softball in a municipal or church league). Courts generally hold that such activities are optional, the participant does not have to participate, the participant can participate in another activity, and the participant can go to another provider — hence, there is no advantage in bargaining position for the provider.

Conspicuous Language. Most courts feel that it is important that the waiver language is obvious to the signer. Preferably the waiver should be on a sheet by itself. This removes the argument that the signer did not know what he or she was signing. On the other hand, if the waiver is included in the middle of the membership contract or on an entry form containing other information, the signer is apt to claim he or she failed to realize that he or she signed away important legal rights. This problem is compounded when the waiver section of these documents is not highlighted and set off in some way. Emphasizing the waiver section by using larger print size, a subheading, bold print, or placing it in a box would help. Failure to do this can result in an unenforceable waiver.

Inherent Risks. Waivers sometimes fail for failure to list the inherent risks of the activity. Courts in some states now require that the inherent risks of the activity be listed. This actually works to the advantage of the provider because including the inherent risks in a waiver provides evidence that the signer was aware of the inherent risks of the activity and assumed those risks. One caution — keep all discussion related to the inherent risks separate so that the signer will not confuse inherent risk with the negligence risks.
There are many other factors that can cause a waiver to fail — too many to address in this article. But the reader should remember that waivers can protect in most states and it is worth the effort to develop a good waiver and use it for protection.

What if the client is a Minor?

This question was easier to answer ten or 15 years ago. At that time, the advice from this author was “Do not use waivers with minors. Waivers signed by minor or by parents on behalf of a minor are not enforceable!” Fortunately for providers, this is not always the case. The law has changed in many states.
It is still true that a waiver signed solely by a minor is unenforceable and provides no protection for the provider.

However, in 12 states, one or more parental waivers have been enforced or there are statutes to that effect.

So, what if the client is a minor? There is no downside to using a waiver with a minor client. Have a parent (preferably both) sign the waiver. If it is not upheld, it still helps with a primary assumption of risk defense. And your chances of enforcement are good in 12 states where parental waivers are currently enforced.        In addition, there are 21 states listed above where the law regarding parental waivers is unknown — and the waiver could be enforced.

Recommendations for Using Waivers

Waivers are the best single risk management tool available to service providers other than the prevention of the injury. Though it is difficult for recreation, fitness, and sport providers to understand:

WAIVERS CAN PROTECT THE PROVIDER FROM LIABILITY EVEN WHEN THE PROVIDER IS NEGLIGENT. In conclusion, a few key points to remember include:

  • Use waivers even in states in which the courts have held that they are not enforceable. They may help establish a primary assumption of risk defense.
  • Do not copy a waiver from a book or article and do not borrow the waiver of a friend who uses one. The waiver should be written and designed specifically for your business and your program.
  • Store your waivers in a safe place and keep them for years — how many depends on the statute of limitations in your state.
  • Learn all you can about waivers (the best single source is the book, Waivers & Releases of Liability, available from the author) and try to keep up with waiver law in your state.

Injured Victims Handbook

Guy Kornblum offers an Injured Victims Handbook, which outlines the basic process of seeking damages for injuries if you are a victim of wrongdoing. There are 12 Chapters which are in layman’s terms and which will outline issues you will need to understand if you have been injured or there has been a death of a loved one and you are seeking compensation from the wrongdoer.

If you want a copy, email gkornblum@kcehlaw.com, or call either of our offices at 415 440-7800 for San Francisco, or 707-544-9006. We can email you a copy or send you a hard copy. I think you will find it very informative. There is nothing else like it out there that I am aware of for injured victims.

March 13, 2017

Insight for Injured Sports Players and Fans

Insight for Injured Sports Players and Fans

Insight for Injured Sports Players and FansTrial lawyer Guy Kornblum, who specializes in bad faith insurance claims, provides an overview for injured sports players and fans. Whether you are a professional athlete or a recreational player, injuries are common in sports. Does the law offer any recourse?

General Rule – No Injury Liability

In many cases, you will not be able to hold anyone else liable for an injury you suffered while participating in amateur or recreational sports activities. Injuries are an accepted risk of playing amateur sports, so bringing a successful personal injury claim is very difficult, if not impossible. But there are a few scenarios that might trigger the legal liability of another participant in the sport or the liability of a third party.

Assumed Risk of Injury in Sports

The legal doctrine of “assumption of the risk” bars you from trying to hold fellow participants or property/facility owners liable when you are injured while playing a sport or game, as long as the circumstances that led to your injury were inherent to — or at least reasonably related to — the sport. The idea behind “assumption of the risk” in this context is that, by agreeing to participate in the sport or activity, you’ve also agreed to assume the possibility that you’ll be injured.

So, if you blow out your knee playing Ultimate Frisbee or get a concussion in a pick-up game of tackle football, you probably can’t hold anyone else liable for those injuries.

Injury Caused by “Unreasonable” Behavior

If your injury was the result of unreasonably aggressive behavior on the part of another participant — you’re playing basketball and the guy you’re guarding punches you in the face because he doesn’t like the way you play defense — assumption of risk wouldn’t bar you from pursuing an intentional tort lawsuit against the person who hit you.

Injuries Caused by Equipment Failure

Also, if your injury was caused by (or made worse by) sports equipment or some other product that was defective or didn’t perform the way it was supposed to under the circumstances, you may be able to bring a product liability lawsuit against the manufacturer.

For example, if the head of a golf club detaches mid-swing and strikes someone in the temple causing permanent brain injury, the manufacturer of the golf club may be held liable for damages.

Injuries at Sports Facilities

Injuries at stadiums and sports facilities tend to fall into two categories: 1) standard premises liability injuries such as slip and falls or trip and falls, and 2) injuries that occur when a fan at a sports event is hit by a ball or a puck. When a guest is injured, who is on the legal hook? Can the owner be sued? Do fans assume the risk and lose the right to a personal injury lawsuit? Read on to find out.

Slip and Falls at a Stadium or Sports Facility

In order to win a premises liability case against the owner of a stadium or sports facility, you must be able to prove that the stadium owner was negligent (i.e., that the owner did something wrong).

Simply because you slipped and fell does not mean that the owner was negligent. Further, simply because the floor was slippery does not mean that the owner was negligent. The floor had to have been unreasonably slippery. Then, in order to prove that the stadium owner was negligent, you must prove that the owner knew or should reasonably have known that the floor was unreasonably slippery, and failed to take steps to fix the problem.

Proving Negligence of a Stadium Owner in a Slip and Fall Case

Let’s take a not uncommon example of a slippery condition at a sports stadium — a wet floor in a bathroom. Everyone who has ever been to a stadium has probably seen a soaking wet bathroom floor at least once.

Wet bathroom floors can be slippery and hazardous, and fans have fallen in stadium bathrooms. But not all slippery conditions in stadium bathrooms involve negligence.

For example, if someone drops a big cup of water (or even two cups) on the floor, and you slip on the water two minutes later, the stadium owner would probably prevail in a lawsuit. There is no negligence in this situation for two reasons: 1) because one or two cupfuls of water on the floor is probably not an unreasonably slippery condition, and 2) even if it was an unreasonably slippery condition, the stadium owner had no reasonable opportunity to learn about the condition and clean it up in those two minutes.

Now let’s consider an example where a slippery bathroom floor would be a negligent condition. Let’s say that the bathroom floor has two inches of water on it because drunk fans constantly put paper towels in the sinks and leave the water running so that the sinks all overflow onto the floor. Let’s say that this happens game after game.

In this type of situation, the stadium owner has reasonable notice that the bathroom floors are constantly slippery. In this situation, a person who slips on the bathroom floor can make a reasonable argument that the stadium owner knew or should have known that the bathroom floors were always slippery, and that the owner should have done something about it.

Injuries That Occur When a Fan is Hit by a Ball or Puck

Another not uncommon occurrence at a baseball or hockey stadium is a fan getting hit by a ball or puck, and some of these injuries can be severe.

What are the fan’s legal rights? If you turn over your ticket to the sports event, you will see a paragraph or two of legal language in extremely small print. This is the stadium owner’s attempted disclaimer of legal responsibility for any injuries that might occur to fans at the stadium. The disclaimer will usually say something like balls, pucks, and even players occasionally leave the field of play, that the balls or pucks might be traveling at high speeds, and that the fan assumes the risk of injury from any balls, pucks, or players that leave the field of play.

How Valid is a Disclaimer?

Let’s say that you get hit by a foul ball at a baseball game. Is this disclaimer really valid? While every state’s law is different, these disclaimers are valid, with exceptions.

The stadium owner still has an obligation to act reasonably to minimize the risk of injury to spectators. That is why all baseball stadiums have netting behind home plate to protect against foul balls. The netting is behind home plate because balls that are fouled straight back are going so fast, and the spectators are so close, that a spectator could not reasonably get out of the way. However, although home run balls also leave the field of play, there is no netting in the outfield because the balls are not traveling as fast and because the spectators in the outfield seats have had four or five seconds to track the ball traveling toward them.

If you get hit by a foul ball while sitting between home plate and first base, you might be able to make an argument that the netting was not large enough, depending on exactly where you were sitting. The stadium industry has standards for how far away from home plate the netting should extend. If the stadium that you were injured at did not meet those standards, you may have a legal case against the stadium owner.

Another example where the disclaimer might not hold up is if you were sitting behind home plate and a foul ball went through a hole in the netting. In this situation, you could argue that the stadium owner was negligent in its upkeep of the netting.

Looking for more information on this subject? Read Mr. Kornblum’s article about waivers.

Mr. Kornblum also offers an Injured Victims Handbook, which outlines the basic process of seeking damages for injuries if you are a victim of wrongdoing. There are 12 chapters which are in layman’s terms and which will outline issues you will need to understand if you have been injured or there has been a death of a loved one and you are seeking compensation from the wrongdoer.

If you want a copy, email be at gkornblum@kcehlaw.com, or call either of our offices at 415 440-7800 for San Francisco, or 707-544-9006. We can email you a copy or send you a hard copy. I think you will find it very informative. There is nothing else like it out there that I am aware of for injured victims.

March 7, 2017

Don’t Let Your Insurance Company Treat You Unfairly!

Don’t Let Your Insurance Company Treat You Unfairly!

Don’t Let Your Insurance Company Treat You Unfairly!

Most of you have insurance.  You insure your autos, your homes, your health (medical insurance), your income (disability insurance) and your lives. You may also insure your businesses against damage to property used for commercial purposes and loss of income. Your insurance includes protection against lawsuits filed by a third party against you, and you expect your insurance company to defend you in that lawsuit and protect you against a judgment for money damages.

Fear of the Future

We buy insurance not because we want it but because we need it – fear of the future motivates us to protect ourselves against injury to ourselves, our families and our property.   The prudent person buys as much insurance as he or she can afford – sometimes even more. We seek from our insurance company peace of mind and security against the risk of financial injury caused by the unexpected.

Frenemies?

Your insurance company is a friend when you agree to purchase the insurance.  However, often that same insurance company becomes your enemy when you make a claim. The claims process is often a hostile and difficult one with a burdensome amount of paperwork and frequent requests for more information. Usually with the goal of finding a way to turn down your claim or limit payments.  Some insurance companies reward their claims handlers for keeping claim costs down by basing their compensation on how little they pay on legitimate claims.

Power and Control

Insurance companies are powerful financial corporate structures.  They have large treasuries.  While the purchase of a policy may take place at your home or business or at a local office, things are different when a claim is made.  Nearly all of the time you are dealing with someone who is hundreds if not thousands of miles away. A face to face meeting is rare, except when an investigator shows up at your door unexpectedly. Indeed, your insurance company has the power and control over you in your relationship with it.

Consider these points:

  • Your insurance company fixes the price; there is no bargaining.  You can lower your cost only by accepting less insurance
  • It chooses the language for your policy; you are stuck with the policy terms your insurance company selects
  • Your claim is paid when your insurance company decides to pay; it determines when and how much you receive
  • Dealing with your insurance company is on a take it or leave it basis

What Can You Do?

What can you do when you believe your insurance company acts unfairly?  How do you combat “low-balling” or wrongful refusals to pay you what the insurance company promised to pay you for the protection that you purchased?

You can go to your state Department of Insurance. However, these state executive departments are generally ineffective.  More than one-half of the states under-fund their Departments of Insurance, so they have inadequate staffs and resources to handle complaints from the public. In some states, the Department of Insurance has been graded as low as an “F” by an independent agency. Not surprisingly, when a claim is denied your insurance company will usually refer you to the state Department of Insurance if you disagree with the claims decision, knowing that you will receive little help.

Unfair Claims Practices Act

What your insurance company does not tell you is that there are ways to combat its wrongful denials.  For example, in nearly all states, there is an Unfair Claims Practices Act which lists 16 unfair claim practices which insurance companies cannot engage in.   You are never told about this when your insurance company denies a claim.

In addition, all insurance companies must abide by a duty of “good faith and fair dealing” in their investigation, administration, and decisions regarding your claim.  If your insurance company violates these duties to you, you can sue and obtain money damages for what is owed you under your policy plus damages for your worry and anxiety and in some instances attorney fees.  And, in the cases of malicious and fraudulent claims handling, your insurance company may be liable to you for punitive damages based on a civil fine which you receive to punish the company for its wrongful conduct.

Don’t put up with insurance company abuse and unfair treatment

We can help you evaluate your claim and determine if you need to sue to get what is rightly yours under your insurance policy. You paid for protection; YOUR insurance company should provide it! — Guy O. Kornblum

Mr. Kornblum welcomes your comments at gkornblum@kornblumlaw.com.

March 2, 2017

The Resolution Advocate: Preparing for an Effective Mediation

The Resolution Advocate: Preparing for an Effective Mediation
The Resolution Advocate: Preparing for an Effective Mediation

The Resolution Advocate: Preparing for an Effective Mediation

Preparing for an Effective Mediation

It takes considerable effort and preparation to make the mediation process work. One complaint I hear over and over is that some lawyers — and perhaps clients —  just don’t get it. Based on my experience, some of what it takes to prepare for an effective mediation:

  • A common and good faith interest in mediation
  • An exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date
  • The presence of those with real authority to settle
  • A level of candor and disclosure that allows the parties to realistically assess the other side’s position

Stating the Obvious

Perhaps the most important trait of a good advocate who also serves as a mediator is listening to what the other side has to say, along with carefully assessing the position counter to the clients. If this is done — and it should be if counsel’s representation in mediation is to meet professional standards — it allows for a full discussion and exchange of information before and during the mediation. The chances of reaching a settlement increase dramatically.

I am not alone. In an article by the Honorable James L. Cott, a Magistrate Judge in the USDC, Southern District of New York, “The Dos and Don’ts of Settlement Conferences,” in the Winter 2016 issue of Litigation, the Journal of the Section of Litigation of the ABA (Vol. 42, No. 2), the author provides a list describing what is required to be ready and effective at mediating:

  • Think about the case from the other side’s perspective
  • Don’t wing it
  • Bring documents and key evidence
  • Be as candid as possible in any pre-settlement submissions to the court
  • Be prepared to make an opening statement
  • Make a demand and engage in real negotiations before coming to the courthouse
  • Don’t bring someone without ultimate authority to settle
  • Don’t’ make the court manage your client’s expectations
  • Anticipate all the materials terms of the settlement before the conference
  • Don’t just come with a bottom line – be willing to be flexible and creative

Most of these points seem obvious because they are. So why would Judge Cott repeat them? My guess is because in his experience many lawyers representing clients in mediation are not doing their jobs correctly and are taking the mediation process too lightly.

Don’t Waste Time

From the plaintiff’s perspective, it is a waste of time and money to participate in mediation if the defense is not prepared. To effectively prepare, the plaintiff — well in advance of the mediation date — lays out the client’s case fully and candidly. Key exhibits and expert reports, not just conclusions and arguments without evidence to support them, included.

From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and the appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and obtain those reports. That has to be done well in advance of the mediation date. It is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process.

Get Going

Indeed, as I sit here today, we just confirmed a mediation to take place in a bit over two months from now. I started the preparation process today by scheduling a meeting with our firm’s associate who will assist me, the client, and another lawyer who is involved. We will outline what needs to be done, confirm our objectives for preparation, and assign our tasks.

Are They Serious?

There is another point to consider: One of the important items on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I might ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.

Two More Good Articles on Preparing for Mediation

The first article, “Making Certain the Settlement You Intend is the Settlement You Get,” by Robert Hugh Ellis of Dykema Gossett PLLC in Detroit, stresses thinking through the terms of your settlement and making sure all aspects are clearly covered so the deal you expect is the deal you get. Indeed, a deal may not be a deal. He emphasizes two points:

  1. Think through the terms of the settlement so that you can be sure that any “term sheet” incorporates the material terms; and
  2. If the agreement at the mediation is not intended to confirm that a settlement has been reached until a final formal settlement agreement is reached, then say so in the term sheet. In short, make sure you understand what “finality” means.

The second article, “The Seven Deadly Sins of Mediation,” by Joel Levine, an experienced mediator, explains how to avoid self-inflicted wounds in mediations. These include:

  • Not Preparing
  • Choosing the Wrong Mediator
  • Not Preparing the Mediator
  • Not Preparing the Client
  • Not Asking the Mediator for Help
  • Insulting Everyone
  • Lack of Clarity
Negotiating And Settling Tort Cases Book

Negotiating And Settling Tort Cases by Guy O. Kornblum

Finally, Judge Cott repeats a quote from Abraham Lincoln, which is one of my favorites and which I have in my book on negotiations (see bio):

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, and expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will be business enough.”

Good meditating. Let me hear your views. Send them to gkornblum@kcehlaw.com — Guy O. Kornblum, The Resolution Advocate

January 29, 2017

KCEH Clients Injured in Bay Bridge Melee

Bay Bridge Accident, KCEH Law

Guy O. Kornblum interviewed on KTVU Channel 2 regarding our Bay Bridge Case involving the Pettys.

KCEH Clients Injured in Bay Bridge Melee

In November 2015, 34-year-old Kerrie Morgan drove the wrong way on the Bay Bridge in a stolen cab. Under the influence of methamphetamine in a stolen car and an unlicensed driver, Morgan slammed head-on into one vehicle and sideswiped two more. She drove westbound in the eastbound lanes of the Bay Bridge for nearly two miles. As a result, our clients had to be extracted from their vehicle using the Jaws of Life. Angie Petty was critically injured. “She had fractured her skull, fractured both legs, fractured her right arm…She had torn all of the ligaments in her neck. They had to restructure her neck,” Mr. Kornblum told KTVU.

On January 25, 2017, San Francisco’s District Attorney George Gascon announced that Morgan was found guilty on all counts by a jury. Morgan earned three felonies and two misdemeanors in this case:

  1. Felony: Driving under the influence causing great bodily injury
  2. Felony: Driving a stolen vehicle
  3. Felony: Hit and run causing serious or permanent injury
  4. Misdemeanor:  Being under the the influence of a controlled substance
  5. Misdemeanor: Driving without a license

A date for Morgan’s sentencing has not yet been set.

December 28, 2016

Rising Stars at KCEH Law

Kaitlyn G. Johnson

Congratulations to KCEH lawyers Kaitlyn G. Johnson and Nicholas J. Peterson, both recognized as Rising Stars by Super Lawyers in 2016. Super Lawyers, the Thomson Reuters lawyer rating service, recognizes outstanding attorneys who have attained a high degree of peer recognition and professional achievement. Its annual selections are made using a patented multiphase process that includes nominations and an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Rising Stars at KCEH Law:

December 26, 2016

Charlie Cochran Lifetime Achievement from America’s Top 100 Attorneys

Charlie Cochran Lifetime Achievement from America's Top 100 Attorneys

Charlie CochranKCEH Partner Charlie Cochran received Lifetime Achievement recognition from America’s Top 100 Attorneys in 2016.

Selection to America’s Top 100 Attorneys® is by invitation only and is comprised of the nation’s most exceptional attorneys whose accomplishments merit a lifetime achievement recognition. Selection is not achieved based on a single accomplishment or a single great year of success, but rather on a lifetime of hard work, ethical standards, and community enriching accomplishments that are inspiring among the legal profession. This honor is not given every year, or every 10 years; it is given but once-in-a-lifetime.

To help ensure that all attorneys selected for membership meet the very high standards expected for selection, candidates for lifetime membership are carefully screened through third-party research and statistical analysis based on a broad array of criteria, including the candidate’s professional experience, lifetime achievements, significant case results, peer reputation, and community impact. With these extremely high standards for selection to America’s Top 100 Attorneys®, less than one-half percent (0.5%) of active attorneys in the United States will receive this honor — truly the most exclusive and elite level of attorneys in the community. Congratulations to Charlie Cochran!


December 22, 2016

Bad Faith Claims and Wins at KCEH

Bad Faith Claims and Wins at KCEH

Bad Faith Claims and Wins at KCEHBad Faith Claims

We recently filed the first of two cases against Anthem Blue Cross for failure to fully pay a claim for emergency medical evacuation by an insured who needed immediate transport to a medical facility after suffering a serious injury. The case is filed in the United States District Court for the Southern District of Indiana. In addition to the California Bar, Guy Kornblum is a member of the Indiana Bar and has joined with Dave McNamar of Indianapolis, who is Of Counsel with KCEH. The case is a compelling one indeed and includes a “bad faith” claim.
We also have a second and even more compelling case (with a great story about the insured who was on an “Angel of Mercy” venture when she suffered a stroke while trekking up Mt. Kilimanjaro). More on that one later.

Wins

We settled a very interesting case on behalf of an infant who is the survivor of a father not married who was shot at a South of Market St hotel during an altercation over a drug purchase. The story has been in the papers (SF Weekly mid-Nov). Excellent settlement in a case of this kind. No insurance! Mr. Kornblum and Nicholas Peterson were the lawyers on the case with colleague Christoper Morales, a criminal lawyer in San Francisco who can be reached through his website.