Insurance Dispute Lawyer Blog

Understanding Terms: Claims Based Insurance v. Occurrence Based Insurance

Published on: February 21, 2011 | By Berniard Law Firm

Insurance policy coverage can be very confusing regardless of how simple televisions commercials may claim it can be. Sometimes insurance companies limit their liability by setting a time period within which the policy applies. In other circumstances, insurance policies limit their liability by creating categories of actions that can be instituted against it. For example, if an insurance policy states that it protects a health care provider for one year after the policy begins, this may mean that 366 days later a patient is out of luck if the doctor performs malpractice. Some insurance companies create distinctions on the types of actions that fall under the policy. For example, coverage can extend either based on occurrence or claims.

The distinction here is important, especially as it relates to the time period to bring a claim. If an insurance policy begins on January 1 and ends on December 31, the malpractice occurs on November 10, and the plaintiff files suit in March of the next year, the definitional difference is important. If the policy is occurrence based, the plaintiff will likely have no problem. In an occurrence based policy, coverage extends to any malpractice which occurred within the policy period. In our set of facts, since the malpractice occurred on November 10, it is covered because it is within the policy period. In a claims based policy, coverage extends to any claim that is filed within the insurance coverage period. In this case, although the malpractice took place within the time period of the insurance policy, the claim was not filed until after the coverage period had extinguished. Thus, in out facts, if the policy was claims based, the insurance company would not be liable for the malpractice.

In a recent case, Dewayne Wright v. Willis-Knighton Medical, the plaintiff, Ms. Wright suffered cramps, a coma, insulin shock, and stroke as a result of medical malpractice. The mother of the plaintiff filed suit on behalf of Ms. Wright. She filed initial suit against the facility, Willis-Knighton Medical. At a later date she amended her brief and added the ER doctors to the suit as well. Later, the plaintiff discovered that the insurance policy did not include the health care facility and only included the medical practitioners who decided to join under the coverage. The doctors that she added under the amended brief were originally protected by the coverage.

The problem for the plaintiff begins, though, when the insurance company that she sued later based its policy with the doctors on a claims based basis. Only the claims that were filed within the insurance coverage period were covered. Unfortunately for Mr. Wright, the period ended the day before the brief was amended. Mr. Wright argued that because the doctors were employed by Willis-Knighton, they were solidary defendants. However, because the policy did not cover the medical facility there is no legal basis to extend the coverage of the policy more than the contract states. Thus, because the coverage period had expired by the time the claim was brought against the insurance company and doctor, the claim failed to meet the requirement within the policy’s scope and thus must fail in court to make the insurance provider liable for the alleged malpractice.

This case shows that if you feel that your rights have been violated or that you have been injured because of medical malpractice that you should seek legal counsel as soon as possible. By waiting before speaking to an attorney you increase the chance that time may run out on your ability to protect your rights.

Accident Involving Criminal Leads to Questions Relating to Insurance Company Policies

Published on: February 19, 2011 | By Berniard Law Firm

The purpose behind having insurance is to help injured parties get relief. In a world without insurance, every accident has the potential to be the financial ruin of the party judged to be at fault. Insurance policies have the effect of creating a large pool of money that can be used to provided financial backing in the post accident period. However, insurance policies will not have the effect of covering every accident that occurs in every circumstances. For example, can we expect to allow an individual who uses his vehicle as a weapon to gain the benefits of his car insurance policy? Answering questions like this are at the cornerstone of lawsuits seeking compensation when tragedy strikes in unfortunately complex ways.

Strong public policy in Louisiana indicates that any accident that occurs in the course of committing a crime should not be protected by insurance. In fact, for obvious business reasons, most insurance policies limit the insurance company’s liability with a crime exception. The Ruston City Court, Parish of Lincoln, State of Louisiana, had this concept in mind when it made a recent decision.

The defendant, Shedrick Green, was driving down a road while he was feuding with another individual in another car. At one point, the party in the other vehicle pulled into a parking lot, at which time Mr. Green pulled out a gun and began shooting. After shooting at the other vehicle, he got back into his car and continued driving. At the next stop sign, he drove into the intersection without stopping at the stop sign and his vehicle collided with the vehicle that the plaintiff, Latasha Potts, was driving. At the trial court level, Ms. Potts sued both Mr. Green and his insurance company. The trial court ruled that driving through the intersection was part of a continuation of a criminal activity. The insurance policy on the vehicle driven by Mr. Green stated that the policy did not extend to criminal actions. Thus, the trial court ruled that the insurance company was not liable because of the criminal nature of the vehicle’s use.

However, upon appeal, the appellate court looked at the circumstances differently. Mr. Green was arrested for assault and battery. According to the facts set out by the trial court, the assault and battery were completed when Mr. Green shot at the other vehicle and drove away. Any action taken after that was not in the course of a criminal activity. If Mr. Green had been charged with fleeing the scene of a crime, there could be a chance that the accident with Ms. Potts was a criminal activity. Parties who are involved in an accident expect to be protected against normal acts of negligence on the part of a driver. In this case, Mr. Green drove down the road and negligently failed to realize that he needed to stop at the stop sign. Thus, the accident with Ms. Pott was as a result of Mr. Green’s negligence, not his prior criminal actions. Criminal law should not be used as a tool to limit civil liablity. Thus, the appellate court overturned the trial court decision.

Insurance policies have the potential to deal with many different areas of law. The facts of this case show an interlocking of civil, contract, and criminal law all in one case. Thus, it is essential or any person who has been involved in a car accident to seek legal advice. Simply settling with an insurance company may not be the most effective way to retain your rights. By consulting with an attorney, finding where the law is flexible or is not as simple as first glance can mean a significant amount, like in this case.

Younger Patients Opt for Joint Replacement Surgery, Increased Numbers Affected by Defective Implants Manufactured by DePuy

Published on: February 17, 2011 | By Berniard Law Firm

In January 2011 the Washington Post reported on the recent trend of younger patients opting for joint replacement surgery. In 2008, of the 277,000 hip replacements performed in the United States, 27 percent were conducted on patients ages 45 to 64. That represents an increase of 78 percent for that age group.

One orthopaedic surgeon believes the trend stems from younger peoples’ proactive approach to pain and aging. “Younger people are less willing to accept physical disability than older generations,” Dr. Mary O’Connor, president of the American Association of Knee and Hip Surgeons, said. “[Younger people] don’t want to hear that they should use a cane or they can’t walk or play golf…”

But with increased joint replacement surgeries comes increased risk. Because most replacement joints are expected to last 15 to 20 years, many younger patients will outlive their artificial knees and hips. And when the usefulness of those joints diminishes, a second surgery, known as a revision, is necessary to replace the failing artificial joint with a new one. Revision surgery carries with it increased complications. “If you need a [revision surgery], that surgery is a little more difficult,” Dr. Mary O’Connor explained. Usually when [the implant] fails, it fails because one of the parts loosens…every time you have to revise it, there’s a higher risk of complications.”

Criticisms of Metal-on-Metal Hip Replacements May Push Physicians Away from Usage

Published on: February 15, 2011 | By Berniard Law Firm

Medical literature has showcased several problems with metal-on-metal hip implants, such as the DePuy ASR line that was recalled in August 2010. Among the various problems, soft tissue reactions and high risks associated with metal-on-metal implant materials emerge to the top. For example, some hip implant recipients are especially sensitive to cobalt and chromium, two metal alloys commonly found in metal-on-metal hip implants. Doctors have observed “soft tissue breakdown and pseudo-tumors” in patients who exhibit these types of sensitivities, as well as other symptoms. Further discussion of these symptoms can be found here.

Additionally, physicians are beginning to balk at the use of metal-on-metal implants due to the newly uncovered information on the devices just now bubbling to the surface. As a result of recent lawsuits against DePuy in relation to the company’s flawed manufacturing processes, physicians are just now realizing some of the inherent risks associated with the metal-based units. Some medical observers predict the popularity of metal-on-metal implants could decrease as a result. Not only are physicians worried about personal liability for implanting a faulty metal-on-metal product, they are increasingly concerned with the proper maintenance of their patients’ wellbeing and health as well. Certainly, the use of metal-based devices in patients can run counter to such goals.

As metal-on-metal implants have been subjected to much scrutiny, physicians are turning to alternative joint implant materials, such as ceramics or plastic. One plastic model, known as the ADM X3 Mobile Bearing Acetabular System, has a ninety-four percent reduction in wear compared to metal-on-metal implants. Although the potential risks associated with plastic hip devices are not entirely known, they do not seem to carry the same risks of metallosis or soft-tissue poisoning that occurred in the DePuy metal-on-metal implants.

Homeowner Liability Insurance Coverage Upheld for Harmful Accident

Published on: February 10, 2011 | By Berniard Law Firm

The Fourth Circuit Court of Appeals in New Orleans recently affirmed that a policyholder was covered by his Homeowner’s policy for injuries inflicted during a brutal accident where another was seriously injured. While leaving a party, Hurst – the policyholder – fashioned a lock pick out of wire to open the door of his truck in which he had locked his keys. After gaining access, he flung away the wire and it bounced off the back of his truck and into the open window of another departing guest, Ms. Baker, injuring her severely.

Hurst held two liability insurance policies with Liberty Mutual: a $300,000 Homeowner’s policy and a $30,000 Automotive policy. The injured Baker sued Hurst, Liberty Mutual Insurance, and her own Uninsured Motorist carrier: Allstate. Through procedural motions, both Baker and Liberty Mutual asked the lower court to make a determination as to whether Hurst was covered by the higher limit homeowners’ policy at the time of the accident.

The Homeowners’ policy included a provision excluding coverage for personal liability and medical payments for bodily injury “arising out of the ownership, maintenance, use, loading or unloading of motor vehicles.” The heart of the issue became whether Hurst’s use of the wire to gain access to his vehicle and throwing it into his truck bed was “use or loading of the vehicle” such that it would bar the coverage of the Homeowners’ policy.

The lower court ruled that Hurst’s throwing of the metal object onto the hard surface of the truck bed had no connection to the use of the truck; it was the disposal of the object itself that was negligent. This is because courts consider the role the vehicle played in the entire scheme. Here, the Fourth Circuit reasoned that the vehicle must be central to the theory of liability and that here it was not – the flinging of the wire was at the heart of Hurst’s liability for injuring Baker. Applying the relevant legal standard from a case called Carter, the Court considered whether (1) the conduct of the insured was a proximate cause of the injury (it was); and (2) whether it was a use of the automobile (it was not). The Court therefore ruled that the exclusion for automobile use did not apply and Hurst’s conduct at the time of the accident.

Homeowners’ policies often include higher limits for liability than do automotive or other policies that people who injure you might have. Given the tragic nature of Ms. Baker’s injury, it is somewhat clear why she sought the Homeowners’ $300,000 policy coverage and why Liberty Mutual sought to deny coverage on that claim.

Legal expertise is very often required to achieve the best outcome for your injuries because insurance companies like Liberty Mutual will skillfully and zealously attempt to limit the amount payable to injured persons – as they did here.

Insurance Policy Exceptions in Automobile Accidents

Published on: February 8, 2011 | By Berniard Law Firm

Automobile insurance policies are a means of protecting car drivers and accident victims. It creates a pool of money so that any party at fault can make the victim of his or her negligence whole. When a business holds itself out as a car dealer, policy terms are a little different based on each party and insurer. An insurance policy agreement between the insurer and the insured is a contract between the parties. Under Louisiana law, words in a contract are presumed to have the plain and ordinary meaning they are generally given. The basic intent of the parties is construed through the words of the contract, and no court can disturb the intent of the parties. If an insurer is attempting to show that a certain provision in an insurance policy exempts coverage, the insurer has the burden to prove any exception.

In a recent case, a court discussed how insurance policy language will be interpreted. The facts giving rise to the cause of action in McKay v. W & J Farms, are as follows:

The plaintiff, Connie McKay, was driving South on Highway 153 in Richland Parish. As she travelled through an intersection, her vehicle was struck on the side by a tractor driven by Kyle Mills. Ms. McKay claims that an insurance policy held by the seller of the tractor extended to Mr. Mills when he was driving the tractor. The way in which Mr. Mills came to be driving that vehicle at the very moment are interesting and are crucial in relation to the cause of action. Mr. Mills works on a farm with his brother and another individual, Mr. Livingston. The three individuals decided that it was important that they purchase another tractor to increase productivity on the farm. Mr. Livingston and Mr. Mill’s father went to a Peterbuilt tractor dealership in order to check prices of tractors. Mr. Livingston brought a tractor to the farm to test it out. Mr. Mills was advised to drive the tractor from the farm to the elevator. During this fateful drive, he struck Ms. McKay at the intersection with Highway 153.

Ms. McKay argued that the Peterbuilt dealer’s insurance coverage extends to Mr. Mills as he was driving the tractor. The insurance company’s policy with the Peterbuilt dealer states in relevant part:

The following are insured for covered autos…anyone else while using with your permission a covered auto you own, hire, or borrow, except…Your customers, if your business is shown in the Declarations as an auto dealership.

In the Peterbuilt dealers business declaration, the business was declared a car dealership. Ms. McKay argued that there is a distinction between auto dealership, as is stated in the insurance policy, and car dealership, as is stated in the declaration. There is obviously no real distinction between these terms. From a logical perspective, a person reading these two terms would find that they are identical. The next question is whether Mr. Mills was a customer of the Peterbuilt dealer. The facts in the case showed that Mr. Mills’ brother was going to be the actual purchaser of the tractor. However, under Louisiana law, a person test driving a vehicle in order to help a purchaser make a decision of whether to purchase that vehicle is considered an extension of the purchaser. This means that the test driver is a customer in the eyes of the law. Therefore, when Mr. Mills was driving the tractor he was a customer and under the terms of the dealer’s contract with the insurance provider, Mr. Mills was not covered under the policy.

Insurance policies are difficult and complex contractual agreements. In order to understand policies, a general understanding of the law is essential. If you have been involved in an accident, you are likely going to have to deal with an insurance company.

Chinese Drywall Still a Major Issue Throughout Gulf Coast

Published on: February 6, 2011 | By Berniard Law Firm

For thousands of homeowners, an unwelcome companion lives with them every day, without their consent and sometimes without their knowledge. This unwelcome housemate is known as Chinese drywall. This dangerous defective material was utilized in a multitude of homes between 2001 to 2007, when it was imported from China. The drywall has created an unhealthy and dangerous atmosphere for homeowners, who have to deal with not only symptoms of failing health, but also their actual possessions showing evidence of exposure to Chinese drywall. One couple in particular describe the chain of events that led them to the discovery that they were living in hazardous circumstances as a result of the Chinese drywall being used in the construction of their dream home.

Chinese drywall is not the type of danger that is instantly apparent; rather, it is hidden in the home, being that it is sheet rock which is later covered and painted over. However, this hidden hazard releases toxic fumes into the air which causes health effects as well as deterioration in objects exposed to such toxins. According to the U.S. Consumer Product Safety Commission, “the drywall releases hydrogen sulfide and possibly other gases causing corrosion of wiring and appliance and possible health problems.” A couple who detail their experience with the defective, hazardous material, stated that their first inclination that something was seriously wrong was when they had to replace their air conditioning compressor and coils twice, within a three month time span. Upon speaking with their friends and neighbors, they discovered that numerous homeowners in the area had to replace their air conditioning compressor and coils often as well, which is not normal for such equipment. The trauma continued when the couple described smelling rotten egg in their home on a daily basis, to such an extent that when they left their home, co-workers and friends would mention that the couple themselves smelled like rotten egg. As further indication of the danger that lurked in their home, the silver jewelry and dishware turned black after sitting out for a mere week and half. Pretty soon, friends, relatives, and neighbors stopped coming to their home, the smell was too much to handle and the couple was at a loss of what to do. Hiring a home inspector to come help them discover the root of their problems, the inspector discovered their house was built with Chinese drywall. Scared and unsure of what their options were, the couple turned to legal guidance and support for answers.

Lawsuits have been filed against the Chinese drywall manufacturer, Knauf Drywall, and the distributor, Interior/Exterior Building Supply. In fact, to date, over 5,000 cases have been filed in a multi-district litigation in Louisiana under federal Judge Eldon Fallon. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer version. Since this process involves major construction, the costs are high and these people rightfully felt like they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

The health risks are extremely important to understand and take into consideration. According to Dr. Patricia Williams, a University of New Orleans toxicologists, “highly toxic compounds have been found in Chinese drywall and prolonged exposure to these compounds can cause serious problems. Strontium sulfide may be dangerous to developing children; affecting bone growth. Chronic exposure to these gases may affect the central nervous system (including visual and sensory changes), cardiovascular system, eyes, kidney, liver and skin.” These risk cannot be ignored, thus, seeking legal advice to understand all of the issues involved is strongly advised.

Chinese drywall is a hazardous material that thousands of homeowners have had to live with for years. Throughout this time period they were constantly barraged with toxic fumes which affected their health, lives, and enjoyment of their homes. Legally, homeowners have an action against the manufacturer and distributor of such a defective product and should seek legal advice as soon as possible. Homeowners need to understand how Chinese drywall impacts their health and environment. Monthly status calls are available for homeowners to listen to, that detail settlement discussions as well as liability issues. Homeowners are encouraged to listen in and can call the conference call number at: 1800.260.0702, with the access code 183730. The next scheduled status meeting will be January 20, 2011. Homeowners are strongly advised to seek legal support to protect their rights; if you live in a home with Chinese drywall, contact an attorney immediately.

Lead Attorney Participates in Status Conference for ASR DePuy Hip Recall Litigation

Published on: February 4, 2011 | By Berniard Law Firm

Lead Attorney Jeffrey Berniard of the Berniard Law Firm participated in a recent status conference called by U.S. District Judge David A. Katz of Ohio. The conference was a coordination hearing, and it was the first of several that will be held to determine the strategic direction of DePuy litigation. At the conference, Judge Katz listened to several attorneys argue for a position on the Plaintiffs Steering Committee. Berniard previously submitted his application for a position on the Plaintiff’s Steering Committee, and even if he is not picked as a member, he looks forward to being an active participant in the litigation on the Plaintiffs’ behalf. Judge Katz will consider all applicants, and he will announce the committee selection at a later time.

Jeffrey Berniad is pleased that Judge Katz was ultimately chosen by the Judicial Panel on Multi-District Litigation to preside over the DePuy pretrial matters. Because the Berniard Law Firm represents clients nationwide, Jeffrey Berniard is accustomed to practicing in front of judges located throughout the country. Indeed, Berniard has indicated that Judge Katz is a remarkable judge with a great reputation and that he is happy to be working with him.

As Judge Katz considers the various DePuy matters pending in front of him, including applications to the Steering Committee, Berniard continues to work diligently to achieve justice for those clients who have been harmed by defective DePuy hip implants. In August 2010, DePuy announced a nationwide recall of hundreds of thousands of its ASR hip implant devices due to abnormally high failure rates and structural breakdowns. Hundreds of thousands of patients who received the implants have experienced serious injuries, such as pain and suffering, as a result. Since day one of the recall, Berniard, along with other attorneys, have been seeking recovery on their behalf through the filing of lawsuits with various district courts on a near daily basis.

Berniard Law Firm Investigating Unfair AT&T Overage Charges

Published on: February 2, 2011 | By Berniard Law Firm

While AT&T has become renowned across the country because of its success with Apple’s iPhone, a new lawsuit is developing regarding data overbilling that may see the communications giant seeing red. The Berniard Law Firm, as part of its ongoing efforts to protect consumers from unfair company policies, is looking into nationwide reports that AT&Ts billing practices are unfair and have left people charged for services they did not utilize.

Reports are emerging that AT&T may be billing customers a set expectation or presumed usage that does not take into account actual service utilization. In test cases, some are finding that, despite all data-based services being turned off and the device unused, data usage charges are still occurring. While the overage is relatively small, combined with the millions (some estimate more than 6 million) of cell phones out there, AT&T stood to profit a serious amount of money. As this money is derived from overage fees, especially against those with 200 MB plans, the effects could be widespread and amount to millions of ill-gained dollars.

Unfair business practices often rely upon these sort of seemingly trivial discrepancies that, in the end, turn out to lead to surprisingly large amounts of money. The DataPlus plan, which provides AT&T users with 200 MB of data for $15 per month, is the minimum required for the iPhone. When one reads the fine print on AT&Ts website regarding the DataPlus plan, you can see that exceeding the initial data allowance (200MB) leads to a customer being automatically charged an additional $15 for each additional 200 MB provided. As these overage “allowances” do not roll over but, instead, must be used in the billing period they were charged, it is inherently possible that hundreds of thousands, if not millions, of AT&T customers went just “a little bit over” and ended up being charged $15. Because AT&T does not take into account this possibility “silent” connectivity that can lead to overages despite no clear usage, it is definitely possible to go over without knowing it despite carefully planning your usage. This simply is not only unfair but unlawful.

Speculation Surrounding DePuy Kickbacks to Doctors Who Recommended Recalled Device

Published on: January 31, 2011 | By Berniard Law Firm

The New Haven Independent reported in December 2010 that DePuy, the company responsible for manufacturing thousands of defective hip implants, spent millions of dollars in attempts to woo doctors toward the use of its products on patients. DePuy, a division of Johnson & Johnson, recalled hundreds of thousands of the hip implant devices it had manufactured after a serious design defect was discovered in August 2010. Just as many patients are currently faced with potential complications or the prospect of revision surgery. Some question whether patients could have been saved from these consequences had doctors not been prompted, via kickbacks, to surgically implant DePuy devices into hip replacement patients.

DePuy discloses payments to doctors on its website, but it categorizes such pay as “product royalty payments, “compensation for research,” “meals,” “airfare,” and other expenses. DePuy paid nearly $50 million to surgeons in 2009, with some physicians receiving as much as $1 million from the company. Even if doctors in good faith believe that payments from DePuy do not compromise their medical judgment, health consumer advocates disagree. “…[T]he reality is, it’s human beings,” Jean Rexford, executive director of the Connecticut Center for Patient Safety, said. “We are influenced. If somebody does something nice for me, I’m nicer to them than someone who hasn’t done something nice to me.”

Another expert, Gregory E. Demske, an assistant inspector general, testified before the Senate that “…[I]n an environment where physicians routinely receive substantial compensation from medical device companies through stock options, royalty agreements, consulting agreements, research grants and fellowships, evidence suggests that there is a significant risk that such payments will improperly influence medical decision-making.”