Blain LLC has successfully obtained a pre-trial monetary award of sanctions against Liberty Mutual staff counsel for their discovery abuses in ongoing litigation.
We love to fight for what is right.
We represent clients injured in car accidents in and around Atlanta.
We can help you recover money for medical bills, lost pay, and pain and suffering.
Feel the difference it makes when your lawyer truly cares.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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!)
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.
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).
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, 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.
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.
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.
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:
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.
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.
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!”
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.
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?
Remember, no matter how the defendant is served, in all UM cases, you must send a copy of the pleadings to the UM carrier.
Once the defendant is properly served, a UM case differs from a regular (straight liability) case in only one way:
On to the next topic then?
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. You may want to. You just don’t.
Ok. Are we done now?
To clarify, the insurance company is not a named defendant at this point. But it can become one. If it wants to.
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?
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.
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.
As soon as it becomes clear that some unidentified individual caused the accident
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?
This matter was reported to CDEFG Insurance as early as October 2015. Since that time both my client and I have made repeated unfruitful attempts to find out the status of her claim. These communications have been well-documented. They include, among others, a written O.C.G.A. 33-4-7 demand for payment sent to CDEFG via Certified Mail, with a return receipt showing it was received by you on January 1, 2016 (Article Number 2534 1513 3668 9752).
The CASE SUPPLEMENTAL REPORT (dated Oct 1, 2015) reveals that your insured’s vehicle demonstrated damage consistent with the claim reported by my client.
Candice Blain, Esq., CPCU
Managing Attorney | Blain LLC
Insurance adjusters are people. And plaintiff lawyers are people (we insist).
But many of the things that motivate some — if not most — plaintiffs’ lawyers, likely do not apply to the insurance adjuster.
For instance, win, lose, or draw, at least twice a month, the insurance adjuster wakes up rolls over, grabs his smart-phone, logs in to his mobile banking app and finds that while he slumbered, he became the recipient of a direct deposit. So, unlike many—nay most—plaintiffs’ attorneys, the insurance adjuster gets paid every two weeks. Win, lose, or draw. Like clockwork.
And, unlike defense lawyers, on the other hand, the insurance adjuster is not in the business of racking up billable hours.
So what then, motivates the insurance adjuster?
An insurance adjuster’s motivators maybe sorted into two piles. But here, because it’s Friday, you will find them sorted into three.
The first category is Negative motivators. Forces tossed into the “Negative” pile are those factors that prompt the insurance adjuster to act in direct response to an unpleasant internal sensation: A negative emotion.
Negative motivators that will inspire an insurance adjuster to settle a claim include:
Ego. Ok, to be fair, ego may be a positive or negative motivator. But for now, we’ll consider it negative.
Bad Faith claims: A bad faith claim, while it may not reflect personally on an insurance adjuster, is one of his greatest fears. No one likes anything that starts with the word “bad.” Especially insurance adjusters’ bosses. Bad faith liability is extra-contractual liability. In other words, it is money that the insurance company will lose, that it did not have to lose, and – most importantly – did not plan to lose.
And that, for a company in the business of making money, is scary. (Here’s a sample bad faith letter, in case it comes down to that).
Fear of committing malpractice: If you’re dealing with an adjuster who is also an attorney, remember, she’s just like you. She wakes up every morning scared, eats lunch scared, and, at the end of the day, goes to bed scared.
As in all human interactions, let’s just agree that it will serve you better in the long run to spur the adjuster to action based on a positive emotion. Whence the second pile: Positive Motivators.
Actions that originate from a ‘warm, fuzzy place’ are superior in quality to actions that originate from a deep, dark, dangerous place. And, as a general proposition, assuming equal outcomes, having people remember you fondly will always pay greater dividends.
So all else being equal, seek first to incite the insurance adjuster to act utilizing positive motivators before resorting to the negative ones. Remember: In all likelihood (particularly if you play your hand correctly) your career will be long, and more than likely this will not be your only case against this adjuster–or her associates.
Positive motivators that encourage an insurance adjuster to settle your claim quickly include:
They like you: “You like me. You really like me..!” Never underestimate the power of this.
You’re professional/you make it easy: They trust you. You have credibility. You make their jobs easy.
They believe in your case: They believe your client deserves to recover.
Most people have an instinct for justice. There is probably no greater motivator than convincing an adjuster that your client rightfully deserves compensation.
Chipping away at the case load: This one is self-explanatory. So I’ll explain it. The insurance adjuster, almost at any insurance company in the country, is responsible for approximately 2,307 claims. Give or take 700. In other words, help her, help you, help her.
The final category of motivation for insurance adjusters, which is by and large extremely rational, is the unpredictability of jury trials and the verdicts they generate.
That this one was tossed into this pile is not intended to suggest that the previously-listed motivators are not rational too. Rather, this factor was gently deposited onto the Rational pile because it is a consideration for the insurer. A rational consideration.
And it should be for you too.
So what have we learned?
The practice of law used to be civilized. Do your part—help return it to civility. By brightening the day of a poor, overworked insurance adjuster, in likelihood you will be greatly helping to promote resolution of your client’s case.
And, by extension, you will be greatly helping yourself.
But you already knew the insurance adjuster and the insurance attorney are the gatekeepers and protectors of the castle. But what is it again that they are so zealously guarding?
So since we’re on the topic, let’s talk about how auto insurance companies make money.