Thank you NAACP of Georgia

I was honored to have been given the opportunity to speak with the Georgia NAACP this past Saturday morning about the problem of sexual assault.

It was an emotional event for me, but as this Sexual Assault Awareness Month draws to a close, I could not be happier to be involved in this conversation.

It is a conversation we must continue to have as we repeatedly remind ourselves that 1 out of every 6 girls will, on her journey through this life, find herself the victim of a rape or an attempted rape…

1 out of every 6 girls.

Thank you to Dr. Francys Johnson (President, Georgia NAACP) and Dr. Meca Williams-Johnson for inviting me to participate.  I am forever indebted to you.

The collateral source rule: Providing an incentive for liability carriers to step up in time.

Intuitively, the collateral source rule makes sense:

If you cause me damages, and I am forced to sue you to get repaid — you should not then be able to use the fact that in the interim I had to turn to my girlfriend, employer, mom, cousin, friend or whoever to help me out  to cover the costs as a reason why the jury should not award me money….

And that’s precisely what the collateral source rule says:

The rule bars the defendant from presenting any evidence as to payments of expenses of a tortious injury paid for by a third party and taking any credit toward the defendant’s liability and damages for such payments.

This is because a tortfeasor is not allowed to benefit by its wrongful conduct or to mitigate its liability by collateral sources provided by others.

The collateral source rule applies to payments made by various sources, including insurance companies, beneficent bosses, or helpful relatives.

Hoeflick v. Bradley, 282 Ga. App. 123 (2006).

So, when a clearly at-fault driver’s insurance company drags its feet in paying a property damage claim resulting from an accident, it only makes sense that the same insurance company should not be able to then turn around and prevent a  plaintiff from presenting proof of his property damages simply because he was forced to turn to other sources for payment…

The consequences of an auto accident can be devastating in ways that are obvious and also less obvious…

Setting aside bodily injuries and physical pain and suffering, a significant amount of stress and lost time may be spent figuring out how to get alternate transportation to get to school, work, medical appointments — and how to pay for and effectuate car repairs.

These consequences are no small thing — and depending on a victim’s own financial or other life circumstances at the time of the accident, they may prove devastating.

So, let’s just agree that as between an innocent driver who finds himself the victim of another’s negligence, on one hand, and an auto liability insurance carrier,  on the other, the insurance company should be the one to pay the consequences of failing to step-up in time to cover losses caused by its insured driver.

The collateral source rule helps to accomplish this (here for sample brief arguing for admission of property damage evidence under collateral source rule).

The collateral source rule rightly provides an incentive for liability carriers to make absolutely sure that when they choose not to step up to the plate on time, they have an airtight reason — or face the consequences of failing to do so.

Posted in law

We proudly stand alongside our Arab American brothers and sisters of all faiths

We have filed suit to enforce our client’s right to stand against and live in freedom from discrimination.

The Fair Housing Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 makes it unlawful to discriminate as to the terms, conditions, and privileges of housing because of an individual’s national origin. It also protects a person’s right to oppose such discrimination.

Titles VI and VII and of the Civil Rights Act of 1964 similarly prohibit discrimination in employment and education. 

We proudly stand alongside our Arab American brothers and sisters of all faiths, and alongside our Muslim brothers and sisters of all ethnicities, and will vigorously fight to defend their right to equal protection and to freedom from discrimination.

Blain LLC files lawsuit for severe burns to inmate caused by collapse of Rubbermaid Commercial Products Brute container

Our firm has filed a lawsuit for severe burns sustained by a 26 year-old man, which resulted in surgical skin grafts to both feet.

The case arose during his incarceration at USP Atlanta and involves an established practice of food service workers filling containers with kettle-heated water to wash and soak dishes.  The plaintiff, who worked in the kitchen, alleges that while he was standing nearby, a filled container collapsed, releasing scalding hot water onto his feet.

The lawsuit comes following multiple similar injuries to inmates involving plastic trash containers, which are commonly used in correctional institutions for storing or transporting hot water.

The lawsuit alleges that the global marketer Newell Brands, promoted its garbage containers in a way that encouraged commercial and institutional uses that extend beyond “merely storing trash.”

In particular, the lawsuit claims that Newell Brands promoted the container to correctional institutions as “virtually indestructible,” “one of the most versatile containers on the market,” and “suitable for extreme temperatures” despite knowledge that due to the container’s low-density polyethylene material, it tends to fail under thermal stress.

In a 2014 decision, an inmate at the Wayne Scott Unit in Texas sustained burns when a nearby plastic trash container was filled with hot water and melted.

In another Texas case, an inmate was injured when nearby plastic trash cans filled with hot water by food service workers collapsed.

And two additional cases, both decided in 2006, centered on burns suffered by inmates when containers used for transporting hot water failed.

Atlanta Business Chronicle

 

 

Can you get sued if someone is raped in your Airbnb listed space?

Airbnb, the popular space-sharing site, is a fantastic way to visit far away places and host others in your community and home. 

But bad things can happen too.  What if something unseemly, violent, or harmful happens in your airbnb space when you’re not even there — can you be held legally responsible? 

The short answer is maybe.

If you list your space on Airbnb or other site and make it available to guests for a charge, you have a duty to protect them from certain dangers — in particular, dangers that they might not perceive for themselves.

In other words, you are not responsible for ensuring the absolute safety of the people you host (by providing a bodyguard, fitting them for protective armor, or enrolling them in self-defense courses).  The law does not expect you to be an insurer of their safety.

So, if, unbeknownst to you, your guests decide to host a frat party on your space, and someone is sexually assaulted, raped, or some other crime is committed, then no, it is not likely you could be held legally responsible (unless, of course, you had reason to believe or suspect it was going to happen and did nothing to prevent it).

However, under the law you are responsible for taking reasonable precautions and warning your guests of dangers of which they might not be aware.

For instance, if you know that there is an escaped convict on the loose and that there has been a string of violent break-ins and instances of rape in the neighborhood, then you must, at minimum, warn your guests so they know to be extra careful.  If you say nothing, and your guest falls victim, then you may be held legally responsible.

The responsibility to protect your guests comes from knowing about a risk of danger that goes above and beyond the general risk of living in this world.

pexels-photo-25349

So, you don’t need to warn of general dangers like watching for cars when crossing the street, or being careful with knives when slicing tomatoes.  But you do need to warn of risks that would not be as apparent to them — and of which you know about because you live there.

It’s all about the dangers that you know about — and that your guests don’t.

The basis for legal liability in these types of situations is the host’s ‘superior knowledge’ of a dangerous condition; whether violent criminals on the loose, vicious animals, a higher incidence of crime in the neighborhood, a rash of car break-ins, or a series of armed home break-ins.
If you know of a danger in your space or neighborhood that should warrant your guests taking extra safety precautions, then under the law you have a duty to warn them.
And if you don’t, and something bad happens, it could lead to a lawsuit.

Property damage claims affect lives

My client initially contacted me because her insurance company refused to pay when her car was stolen and smashed.

With no car, she had no way of getting to her 3 to 4 days a week chemotherapy appointments. 

After a fight, the insurance company now agrees to pay.

But their offer comes too late.

My client was forced to discontinue her cancer treatment due to transportation difficulties.

For some, transportation can mean the difference between having a job and having no job — making it to doctor’s appointments and ending necessary treatment.

When insurance companies don’t pay valid claims, people’s lives are affected.

Sometimes irreparably.

Service By Publication

Or, How to Serve a Ghost.

Service by publication is the opposite of personal service.

In fact, it is so impersonal, that it does not ever notify the defendant that he has been sued.

And that is okay.

Service by publication is utilized to effectuate service on defendants that have effectively disappeared. 

Defendants that have evaded service, that have fled, that have moved and cannot be found…

The thing to remember about serving somebody by publication is that it is not real; it is merely an illusion. 

And since it is only a figment of your imagination, it cannot be used to secure a real judgment against a real person.

But, while imaginary service cannot uphold a real-life judgment against a real live person, it can be used to generate an imaginary judgment that you can then take to your UM carrier to request payment.

Service by publication only has value (in the auto accident litigation context) if the plaintiff intends to proceed against the UM carrier.

If the plaintiff intends to proceed against the defendant (personally) or against the defendant’s liability carrier, then the plaintiff must secure a real judgment.

Which means personal service of process.

The process for recovering for personal injuries and damages under UM insurance

When the defendant does not have insurance, or does not have enough insurance to fully pay for the plaintiff’s personal injuries and damages, then the plaintiff’s own insurance company supplies the cool, crisp, icy glass of water on what is otherwise just a hot, dry, dusty day.

Let’s hear it for UM coverage.

Hunting for UM coverage

While UM (or Uninsured Motorist) coverage may not rain down from the sky like lemondrops, it does originate in more places than the obvious.

First, obviously, there is the obvious source: the plaintiff’s own insurance policy. Obviously.

But where else? Ahh.. Consider all other vehicle policies of every member of the plaintiff’s household. . Notice I said vehicle policies, not automobile policies.

So motorcycles, ATVs, mopeds(?) …. all of these should be under suspicion.  Round up all the unusual suspects.   Once you’ve identified all of them, ask yourself, are any of the people that these policies belong to “relatives” of the plaintiff?

If so, bravo. These policies potentially contain UM coverage available to the plaintiff. (WOOOHOO!)


 

Add-on vs. Reduced 

Let’s step back and discuss for a minute the types of UM coverage.  This won’t take long.

Before January 2009 there was only one kind of UM coverage. But it was silly.  So, in 2009 it changed.  When it changed, most people’s UM insurance became a better kind.  Unless they wanted to stick with the original silly kind. Which they could.

Add-On UM Insurance 

The better kind.

Assuming the plaintiff took out enough, the better kind of UM coverage fills the space between what the defendant has (whether $0 or more) and what the plaintiff needs (i.e., plaintiff’s damages).

Reduced UM Insurance

Now for the silly kind.

The silly kind of UM coverage essentially replaces the defendant’s insurance. It is only useful if the amount of UM insurance is more than the amount of liability insurance the defendant has. If and only if the plaintiff’s UM insurance limit is greater than the defendant’s available liability insurance, then the plaintiff’s UM carrier will pay that difference.


 

Stacking 

Stacking, a term that often pops up in the UM context, refers to which UM carrier is first up to bat.

Stacking rules govern which carrier must pay first, and which pays last, and which carrier (when a reduction policy is involved) gets to pay less by claiming the credit equal to the amount of available liability insurance.

The plaintiff should just be aware that you can only stack policies – not coverages.  In other words, if it exists in a whole separate policy it qualifies as a separate source of UM funds; a “block,” if you will – a stackable “block” for stacking.

To be sure, even if each separate policy is issued to the same person, they still count.  And, even if the policy is issued to someone other than the plaintiff, but under which the plaintiff qualifies, then it too is a stackable block.

But stacking is really the insurance company’s problem – not the plaintiff’s.

The plaintiff’s only job is to timely and properly serve all UM carriers and the umbrella carrier.  And then to sit back and let them have at it.


 

What is the actual procedure for recovering under UM Insurance?

In UM cases–as in all cases–you must first obtain service on the defendant.  Then you must prove liability, so as to secure a judgment against the defendant.

It is the judgment against the defendant that entitles the plaintiff to payment from the UM carrier.

The rub here is that settlements often occur before a judgment against the defendant is secured.  The key to success in UM cases, then, hinges on steps taken at the outset: proper service on the defendant AND proper notice to the UM carrier.

1. Proper service on the defendant

To recover under the plaintiff’s UM coverage, you must either have, or be in a position to secure a judgment against the right kind of defendant.

To be in a position to secure a judgment against the right kind of defendant:

  • The defendant must be a UM-type defendant;
  • You must effectuate proper service of process on him/her.

Types of UM Defendants

Certain types of defendants implicate UM coverage.  When a defendant is Deadbeat, Disappeared, Deficient, or Doe, warm up your photocopier; you’ll be needing it to send copies of the Complaint to the plaintiff’s UM carrier.

For the first three types of defendants, the plaintiff must effectuate personal service of process.

  • Deadbeat Defendant: No insurance
  • Disappearing Defendant: Whereabouts is unknown
  • Deficient Defendant: Underinsured

How do you know your defendant is underinsured?  Is it in the shimmery glint of his eye? Is it in the way he walks? Is it in the way he talks? Is it all up there right in his air? Is it all up there right in his hair? Is it cuz he’s debonair? Do we even really care? Ahem.

The correct answer is False.

Whether your defendant is underinsured has nothing to do with him.

It has everything to do with the plaintiff.  You see, when it comes to underinsuredness, the defendant’s policy limits are like the question of negligence; underinsuredness in the air, so to speak, is not enough. Asking whether the defendant is under-insured is identical to asking “Does she have enough?

Enough…?” the defendant would tepidly inquire, “Enough for what…?

And that is the question: Enough for what?

The response? “Enough to cover the plaintiff’s damages!

In short, to determine whether the defendant is uninsured, you look to the plaintiff’s damages. If they exceed the defendant’s policy limits, then you, my friend, have a UM case: the defendant is under-insured.

But having an “underinsured” defendant as opposed to a plain ol’ vanilla “uninsured” defendant does not mean much. In fact, it doesn’t really mean anything.  It may be a different flavor, but at the end of the day it’s still UM.

So for the first three types of UM Defendants (Deadbeat, Disappearing, or Deficient), just remember that the manner of service is the same — Keep it personal (i.e., Personal Service of process).

But the Doe defendant is different.

Serving the Doe Defendant

He hit the plaintiff – but he never stopped.  Or, he hit someone else, who in turn hit the plaintiff, and he never stopped. Or, he almost hit someone, who hit the plaintiff (and at least two people saw him, but we’ll get to that another day), and he never stopped.

Either way, he is a Doe defendant.

Service for him is different. It’s not personal. It can’t be. Because John Doe doesn’t exist.

So what do I do?

Easy. You serve the Doe defendant by publication.

Remember, no matter how the defendant is served, in all UM cases, you must send a copy of the pleadings to the UM carrier.

2. Proper service on the UM carrier

Once the defendant is properly served, a UM case differs from a regular (straight liability) case in only one way:

You serve a copy of the complaint on the UM carrier.

That’s it?

That’s it.

On to the next topic then?

Not quite.

Notice that the procedural difference was merely that the UM carrier is served with a copy of the Complaint. You are merely serving the UM carrier with a duplicate of the lawsuit you filed against the defendant(s).

You do not name the insurance company as a defendant.

You do not. You may want to. You just don’t.

Ok. Are we done now?

Almost.

To clarify, the insurance company is not a named defendant at this point.  But it can become one.  If it wants to.

You see, when served with the Complaint, the UM insurance carrier has three choices: 

  1. It can file an Answer in the name of the defendant,

  2. It can file an Answer in its own name, OR

  3. It can sit back and do nothing.

It can do nothing because the UM carrier is not an actual defendant in the case.

It is not.

If, however, the UM carrier goes with Door Number 2, and files an Answer in its own name, now it is open-season.  Power up your word processor, and change the pleadings: You’ve reeled in a UM named-defendant.

From that point on, slap the UM carrier’s name up there in the pleadings and treat the UM carrier just as you would any other defendant.

Alright, we’re done here now, right?

Not quite.

Let’s back-up. I misspoke.  When I said “treat the UM carrier just as you would any other defendant,” what I meant to say was, treat it that way until you can’t anymore.

To clarify, while the UM carrier, by virtue of having answered in its own name, now looks like a regular ol’ defendant, you should remember that looks can be deceiving: The UM carrier is not exactly a regular ol’ defendant.

The UM carrier is a special kind of defendant – the unicorn of defendants, if you will.

You see, the UM carrier can change its mind. 

At any point, the UM carrier may withdraw its Answer and then you’re back to square one: The UM is no longer a named-defendant. Time to shake the White-Out.

What’s going on here is that by filing an answer in its own name, the UM carrier becomes a party and can do everything a party can do; serve discovery, notice depositions, file motions, etc.  But, those rights, for the UM carrier, come at a hefty price.  As we all know, rights entail liabilities.

When the UM becomes a party to the case, *bam* its name appears on the pleadings.  And those pleadings may be viewable by the jury.

And, as we all know, if there’s one thing that can make a jury feel exceptionally comfortable handing down a big verdict, it is the word “insurance.”

So, when the UM carrier is done playing defendant, unlike the rest of us, it has the option of taking its ball and going home. The UM carrier may withdraw its Answer and *poof* the UM carrier’s name vanishes from the pleadings.

Ladies and gentlemen, the UM prestige. It’s like it never even happened.

The main reason why a UM carrier theoretically might not take advantage of this secret trap-door option–and would instead allow itself to remain a party all the way through trial–is if the carrier does not agree that it is on the hook for the plaintiff’s problems in the first place.  In other words, the UM carrier might decide to remain in the case if it disputes that the plaintiff was even covered by UM insurance.  Remaining a named-defendant would allow two questions – the question of coverage AND the question of liability – to both be wrapped-up in one tidy lawsuit.

Oh. Um. Okay – So at what point do you serve the UM carrier?

The minute it starts seeming like the defendant’s liability insurance may not be enough.

OR

As soon as it becomes clear that some unidentified individual caused the accident

OR

Once you realize you cannot personally serve one of your defendants because she has now disappeared.

And, if you’re not quite fully sure, just go ahead and serve the UM carrier with a copy of the complaint.  You really cannot serve them too early.  But you can serve them too late.

So serve them. Then, agree to a dismissal of the UM carrier without prejudice.

Okay, what else?

Nothing.


 

Watch video How to write a great demand letter.