= Plaintiff attorneys arent afraid to throw it at the wall While - - PowerPoint PPT Presentation

=

 Plaintiff attorneys aren’t afraid to “throw

it at the wall”…



While out skateboarding, Jeffrey Kline & Brett Birdwell illegally entered property owned by Amtrak and Norfolk Southern Corp. and climbed on top of a boxcar to get a view of the city. An uninsulated wire suspended above the train jolted Klein with 12,500 volts

• f electricity, causing severe burns over 75%
• f his body. Birdwell received burns over 12%
• f his body when he ran to assist his friend,

whose clothes were on fire.



 In the October 2006 trial, a Pennsylvania

federal court jury said that, although they were trespassing, the 17-year-old boys bore no responsibility for the accident, instead blaming it entirely on the railroad for failing to post signs warning of the danger from the electrified wires that power locomotives. For medical costs, pain and suffering, and "loss

• f life pleasures," the teens received a

combined $24.2 million

 Stella Liebeck, a 70-year old Albuquerque woman,

spilled a cup of McDonald's coffee on her lap while sitting in the passenger seat of a parked car. She suffered 3rd degree burns on her groin, inner thighs and buttocks and spent seven days in the hospital.

 When McDonald's refused to pay her medical bills,

she sued. A jury awarded her $160,000 in compensatory damages and $2.7 million in punitive damages, which were later reduced to $480,000. Both sides appealed, and eventually settled out of court for an undisclosed amount.

 During the lawsuit, plaintiff attorneys

learned the temperature of McDonald’s coffee was 40° to 50° hotter than that fit for human consumption, and that McDonald’s had received over 700 prior injury reports from its coffee, including reports of 3rd degree burns, and had paid settlements in some cases; yet, executives took no action to serve safer, consumable coffee at a hot but reasonable temperature.

 Think like plaintiff attorneys

› Investigate claims thoroughly › Understand legal theories

 Even “creative” theories which may support recovery or at least partial recovery

› Aren’t intimidated by liability defense

attorneys who try to convince them their case is groundless

› Aren’t intimidated by plaintiff attorneys who

try to convince them their case is weak (in

• rder to get a lien compromise)



Subrogation

• The substitution of one person in the place of another with

reference to a lawful claim, demand or right, so that he who is substituted success to the rights of the other in relating to the debt or claim, and its rights, remedies, or securities.

• The lawful substitution of a third party in place of a party having

a claim against another part. Insurance companies, guarantors and bonding companies generally have the right to step into the shoes of the party whom they compensate and sue any party whom the compensated party could have sued.

• The right of one who has paid an obligation which another

should have paid to be indemnified by the other.

(Definition: Black’s Law Dictionary)

 The party contractually obligated to pay

the damage claim pays it, and then pursues reimbursement from the party whose negligence caused the damages

 In other words, the party that had to pay

pursues reimbursement from the party that should have paid

 Are GREAT at

• Medical stuff
• “Forms” stuff
• Calculating stuff

 Are less GREAT at

• Liability/negligence stuff
• Thinking like a plaintiff attorney

• Evaluating compensability
• Considering pre-existing conditions
• Managing medical treatment
• Looking for return-to-work opportunities
• Issuing the proper ICA notices
• Who was at fault for the injured worker’s

injury

• If/how the responsible party can be held

liable for paying for those injuries

 AZ has a 2-year statute of limitations for

negligence-based claims vs. private entities

 Per A.R.S. §23-1023, injured workers can

pursue a civil remedy against the party that caused their injuries within 1 year of the date of injury by:

• Settling their claim and paying our WC lien
• Filing a lawsuit vs. the liable party (and paying

the comp lien from proceeds of that suit)

• Getting a reassignment of our second-year

recovery rights vs. the liable party (and honoring

• ur lien)

 Within that 2-year statute of limitations:

• Year #1: Injured worker has exclusive recovery

rights

• Year #2: WC carrier/self insured has exclusive

recovery rights if there was no settlement, suit or reassignment to the injured worker

 That means the comp carrier or self insured becomes the third-party “claimant”

 1-year statute of limitations for negligence

claims vs. public entities (ARS §12-821)

• ONLY if you file a statutorily compliant notice of

claim (ARS 12-821.01) within 180 days after date

• f loss/discovery of negligence-based damages

 Injured worker and WC carrier/self insured’s

rights against responsible third parties run concurrently

• Unless the injured worker settles/repays the WC

lien, or gets a reassignment, or files suit, the WC carrier/self insured needs to file a notice of claim within 180 days and a lawsuit within 1 year

Third party recovery “pecking

• rder”
• #1

The claimant attorney (fees/costs)

• #2

The work comp provider (lien)

• #3

The claimant (whatever is left)

 Example:

› Represented claimant on a 33%

contingency agreement settles with the liable party for $100,000; comp carrier has $25,000 lien

› Attorney costs (expert fees, etc.) total $2,000 › Attorney takes his 33% ($33,000) plus costs of

$2,000; so he/she collects $35,000

› Comp carrier gets its $25,000 lien (if they

didn’t compromise it)

› Claimant gets the remaining $40,000

 …won’t the EMPLOYEE be the one to

figure that out?

 …won’t the EMPLOYEE be the one to

hire an attorney and pursue a claim (on which we can assert a lien)?

 Not necessarily!

 AZ is a “pure comparative” state

• If a third party is even 1% at fault for injuring

an employee, they pay 1% of the total damages

 DON’T assume there’s no recovery

potential just because your injured worker was “mostly” (maybe even 99%) at fault for causing his own injuries.

• Even 1% of what you’ll pay on a serious injury

claim can be a BIG number!

 Duty owed  Duty breached  Proximate cause  Actual damages

 What’s the duty owed?

• Generally…to operate the vehicle in a

reasonable/safe manner to avoid an accident

 Control speed  Maintain proper stopping distance  Yield the right of way when required  Obey traffic controls  Stay in your lane  Watch for pedestrians

 Rear-end auto accidents  Left turn accidents  Failure-to-yield accidents

• Other vehicle ran a stop sign or red light
• Other vehicle emerging from a side street or

private drive

 What if it looks like the injured employee

caused the accident?

 Maybe he/she did…but were they really

100% at fault?

 Or was there comparative negligence?

• What do witnesses say?
• What does the police report say?
• What do accident scene photos tell you?

 Can property owners be held partially liable

in auto claims for visual obstructions in violation of setback ordinances or for

• vergrown trees/shrubbery?

 Can construction or barricade companies

• r public entities be held responsible for

confusing signage/barricading?

 Were stoplights properly functioning?  Were there applicable standards for road

design, signage or speed limits? Were conditions in compliance with the standards?

 Were there visual obstructions that

contributed to the accident?

 Did construction/barricading contribute

to the accident

 Were traffic signals working properly?  Were the appropriate traffic signals or

traffic warning signs present, and if so, were they compliant with the applicable code?

 If you’re on someone else’s property, you’re

either

• An invitee/business invitee

 Invited by the property owner, generally to benefit the

• wner (i.e., store customers)

 Owner has a duty to make the property reasonably safe

• A licensee

 Enters property for his own purpose or enjoyment, and is present at the consent of the owner, usually for a business purpose (but social guest are also licensees)  Owner only has a duty to warn of known hazards (not to make the property reasonably safe)

• A trespasser

 On the property without the owner’s permission  Owner has duty not to intentionally injure or set traps

 Determine the injured worker’s status on

the property (usually will be licensee in work comp claims)

 Determine what duties the property

• wner owed the injured worker

 Were those duties breached?  Was that breach the proximate cause of

the employee’s injuries?

 Was the property well-lit? (were there

applicable lighting standards?)

 Poor lighting can apply to outdoor

accidents too…

Are pedestrians known to walk here after dark?

 Mid-block crosswalks should always be

well-lit.

Would an approaching driver see this?

 If there was liquid/debris on the floor,

was their a “reasonable” cleaning/maintenance schedule?

 And, did the property owner try to warn

• f the dangers?

 Were there physical defects that should have been

discovered/repaired (based on how long they existed) or for which warnings should have been posted?

 Were there code violations (stairway

rises/runs, handrail requirements, etc.)?

Was another handrail required on this side?

 Was there a requirement for anti-skid

edges (or tape)?

 If trips hazards were known, were there

warnings?

 Were there prior complaints about conditions (or

even prior injury claims)? (i.e., was the property

• wner “on notice” of a dangerous condition?)

 Product liability claims are generally

based on:

• Negligence
• Warranty
• Tortious misrepresentation
• Strict liability

 The manufacturer owed a duty to the

injured party—that duty is generally based on the “reasonableness” standard

 The manufacturer breached that duty  The breach of duty was the cause of the

injured person’s injuries

 The injured person suffered actual

damages as a result of the breach

 Express warranties

• Specific claims made about a product
• Sometimes included in advertising material (saying a

product will perform a certain way under certain conditions)

 Implied warranties

• Of merchantability (product doesn’t have design or

manufacturing defects or improper labels)

• Of fitness for a particular purpose

 Products should be fit for normal use and

foreseeable misuse

 Fraudulent misrepresentation / deceit, in

which a person (or company) knowingly makes a false statement to mislead someone (ex: tobacco products)

 Negligent misrepresentation, in which a

person / company was negligent in determining if a statement / representation was true (ex: mfgr. didn’t test properly prior to making a statement about a product)

 Doctrine that allows someone injured by a

defective or unexpectedly dangerous product to recover compensation from the maker or seller of the product, without showing that the manufacturer or seller was actually negligent

 Rather than focusing on the behavior of the

manufacturer (i.e., proving negligence), strict liability claims focus on the product itself

 Enables claims even when a manufacturer met

the “reasonable” industry standard (circumventing industry standards that may be careless)

 Regardless of what steps a manufacturer or

seller took in making/distributing a product, a strict liability claim can be made if:

• The product had an "unreasonably dangerous"

defect that injured the user

• The defect existed in the design/manufacture,

handling or shipment of the product

• The defect caused an injury while the product

was being used in a way that it was intended to be used

• The product hadn’t been substantially changed

from the condition in which it was originally sold.

 Examples where strict liability might

apply

› A curling iron with a defective heating

element that shorted and caused shock, burns or fire (defective manufacturing)

› A crib manufactured with poor-quality wood

that, even when properly assembled, could break easily when force is applied. (defective design)

› Manufacturer failed to include proper use

and care instructions for an intrinsically dangerous power tool (failure to warn)

 Strict liability can apply to cases involving

a failure of a manufacturer to provide:

• Adequate warnings
• Protective guards/shields
• Safety interlocks
• Shutoff switches

 Defenses against product liability claims

include:

• Misuse (non-foreseeable) by the injured party
• Product alteration (either by the end user /

injured party or by someone in the stream of commerce)

• Unusual reaction (ex.: a 1-in-a-million allergy or

sensitivity to a medicine, lotion, etc.)

• Product design/materials were state of the art at

the time of manufacture

• User continued to use product after knowing of

the defect

 Stream of commerce

• Includes EVERYONE who was involved in the sale
• r distribution of a product, starting with the

manufacturer

 If you are pursuing a products liability subro

claim, put everyone on notice—and let each party do one of the following:

• Document they didn’t alter the product while it

was in their care, custody and control

• Tender the defense of the claim “upstream”

toward the manufacturer

 …meaning some creative plaintiff attorney

took a chance on a “ridiculous” lawsuit…

Safety Shields

 Latin for “the thing speaks for itself”  Legal theory that a party is presumed

negligent if they had exclusive control of something that caused injury

• Flower pot falls off a second story window

ledge

• Apartment owner is presumed negligent
• Soda bottle inexplicably explodes in a

consumer’s hand

• Manufacturer is presumed negligent (if there

was no interim damage by someone else)

 Notify the injured worker as soon as possible of

• ur lien on his/her subro recovery

 If he/she has a liability attorney, notify the

attorney as well

 Notify the tortfeasor and/or their insurance

carrier of our lien

 Monitor the file to see if the claimant or

attorney has filed suit within the first year after the accident (or within 180 days [NOC] and 1 year if an AZ public entity is involved)

 Discuss reassignment requests with your

supervisor before agreeing

 Liability attorneys will ask you to

compromise the work comp lien so they can settle the liability claim…and yes, they’ll cry…

 And they’ll yell and scream…

 They’ll tell you about:

• Their client’s “horrible” liability case (even

though they just finished telling the liability defense attorney how great their case is…)

• The other side questioning unrelated injuries

(even though work comp had to pay for those injuries)

• Limited insurance coverage from the liable

party’s carrier

• Sympathy (“I need to put some money in my

poor client’s pocket…”)

 Don’t be afraid to ask the liability attorney for

any/all documentation you need to assess liability BEFORE agreeing

• Plaintiff’s expert reports/opinions (liability & damages)
• Defense expert reports/opinions (liability & damages)
• Deposition transcripts
• Pleadings from the third party lawsuit

 Don’t be afraid to ask how much they’re

cutting their fee (and get documentation they did)

 Don’t be intimidated; don’t get bullied  Don’t make quick decisions: their delays do not

become your “rushes”

 1. If the facts are against you, argue the

law

 2. If the law is against you, argue the

facts

 3. If the facts and the law are against

you, yell like hell

 The work comp provider gets a future

credit (indemnity only unless medical malpractice involved) for the amount of the third-party settlement netted by the injured worker

• Issue a Notice of Claim Status

 Check Box 11  Specify “Carrier takes a future indemnity credit

• f $____ based on claimant’s third-party

settlement”