Bodily Injury Claims When You Were Injured While A Passenger In Your Own Vehicle

NeuwirthLawAuto Accidents

When terror strikes in the comfort of your own car…

Does this happen? Periodically. Can you make a claim for it? Absolutely. I have settled two cases like this for a total of $600,000 in the past few years in just this scenario. Most people only look at their bodily injury coverage as protection for when you injure someone else with your car. But, the insurance also covers you when you are a passenger. When does this happen? Recently, a client was injured when he was teaching a family member how to drive. The client was sitting in the front passenger seat in an empty suburban parking lot on a weekend. A police cruiser happened to drive into the complex on a routine patrol and the novice driver panicked and hit the gas instead of the brake. The car shot forward and crashed into a light pole’s concrete base. The client’s leg was broken and he underwent surgery. I made a claim for him for his limits of coverage, which was not enough to cover his injury.  The insurer did not respond immediately.

After waiting a month, I followed up and sent an inquiry to the insurer. Again, the insurer did not follow up. At this point, the insurer is risking a bad faith claim. Insurers are required to deal with their insureds in a good faith manner and are required to evaluate if there is coverage and whether the coverage applies. If there is coverage, they must make some reasonable effort to settle the case.

In this case, it turned out that the insurance rep who was receiving my correspondence was new or poorly trained and just kept sending me letters saying that the medical claim was closed out. Finally, I sent a bad faith letter pointing out that far too much time had passed and the carrier was not complying with its duties and a bad faith lawsuit was going to be coming soon.

Within a day, the carrier followed up and tendered its policy limits, which was the correct response. I think me and the claim rep both agreed that this was a case where the claim had slipped through the cracks, but posed substantial problems for the insurer if they continued to ignore me.

These bodily injury claims in your own car are infrequent claims in my book, but they do pop up and are usually entertaining factual scenarios.  So, sometimes, being injured in your own car by a family member or friend may have a positive financial outcome for you.

Should You Drop Collision Coverage on An Old Car That You Still Use?

NeuwirthLawAuto Accidents, Insurance

Should You Drop Collision Coverage on An Old Car That You Still Use?

The short answer is No, don’t drop collision coverage if you will struggle to buy a new or even a used car after a crash. A lot of people, me included, drop collision coverage on older cars. Collision requires the insurer to repair your vehicle, no matter how old, unless the cost of repairs is larger than the book value of the car. But, if you are going to have financial problems that don’t allow you to quickly replace your damaged older car, then you should keep collision on your car. For example, let’s say your teen is driving a 2000 Rav 4. You drop collision because it’s older and it seems like a waste of money.  The collision coverage probably costs you $750 per year. If the car sustains $3300 in damage but is worth $9000, the insurer will not total it and will not repair it. So, what are you going to do if your family needs to have the teen driving? Well, you could have kept collision on it for about $750 per year and the insurer would repair the car. Now, without collision you are out of luck. So, keep that in mind.

LAWYER CONUNDRUMS: JUDGE AILEEN CANNON/ BAD LUCK / DEAL WITH IT

NeuwirthLawCase Matters, Courts, For Lawyers, In the News

So, there is a lot of bellyaching about Judge Cannon being assigned to Trump’s case about hiding classified documents. If she was assigned as most cases are by random computer assignment, then it si just bad luck.  But, that is why we have trials.  You have to prove your case.  Innocent till proven guildty and all that, no matter how you feel about the defendant.  First, the case seems rather strong. Often, the obstruction or lie is worse than the underlying misdeed. That certainly seems to be what Trump is facing up to here.

Why are lawyers concerned about the Judge? Well, while a jury will ultimately have its say and I would guess the odds are 75% or higher for conviction, Judges can exercise a lot of control over cases and evidence. These are things that are rarely aired in public. The stark examples are when a criminal is freed because evidence was improperly obtained by investigating officers. So, if a gun is seized improperly, then the judge decides the gun cannot come into evidence, then you have no case.  Did the Judge make the ultimate ruling? Yes, but the investigators broke the law in the first place, so the judge was ultimately the check on the police.

Here though, Judge Cannon could slow walk the case meaning stretch the time frame out far beyond normal. Or, she could rule out certain pieces of evidence or she could grant motions to dismiss certain charges after a conviction. In light of her past decisions being reversed rapidly and scathingly, I would guess that she will play some role in making the case easier on Trump but Trump will still get convicted and sentenced to jail. Judge Cannon could depart downward and sentence him to no jail time, but that would be appealable. In general, I think that she will be a thorn in the prosecution’s side throughout the case, but may not be able to prevent conviction. Are there ways that she could thwart conviction? Yes, but in light of her past conduct, she is going to be on a short leash with the Court of Appeals that oversees her decisions.

The sentencing guidelines for convictions call for years of jail time, not months. We shall see how it turns out. Should be more than entertaining to watch.

Oh, and his co-defendant Valet guy, really really really should be taking a plea. He will be left holding the bag here and spend a lot of time in jail otherwise. File this under poor life decisions if he does not plead guilty and testify against Trump.

LAWYER CONUNDRUM #2: WHAT TO DO WHEN A JUDGE IS NOT MAKING A DECISION ON YOUR VERY IMPORTANT MOTIONS?

NeuwirthLawCase Matters, Courts, For Lawyers

In personal injury cases, it is unusual that a lawsuit turns solely on a judge deciding a motion to dismiss or motion for summary judgment.  It happens, but is unusual. More often, the Court’s failure to decide a procedural motion like Preliminary Objections, just slows things down a little.  However, periodically, Judges delay acting on critical motions that affect how the case will turn out. I know that for my non-personal injury lawyer litigators, most of their cases turn on what we call dispositive motions. These can be motions to dismiss at the beginning of the case or motions for summary judgment etc.

Anyway, so the problem posed above is one that we deal with from time to time. What do you as a lawyer do when you would like a judge to act on a dispositive motion but they are taking their time doing so? Well, first, Judges are busy just like the rest of us are and some cases may be a priority over others. Also, when Judges are on trial, those cases will take up a lot of hours in the work day. There is no benefit to the Judge deciding something faster or slower.  It has no bearing on them or their job as far as I can tell.

So, if a judge is slow in deciding a motion, do you call the chambers and ask them to hurry up? Whenever I have done that in the past, I have lost the motion. Sooooo, I don’t do it anymore. It may just be superstition at this point, but if the Court is going to take its sweet time doing its job, there is really not a lot I am going to do about it.

You can indirectly suggest that your case merits attention and hope that chambers will realize the motions are undecided. Sometimes this can be accomplished by filing documents that are not significant to the case, but require the Court’s attention. It’s sort of like poking the sleeping bear or dog without actually saying, hey, I need a decision here. Maybe you request a subpoena or submit a motion in limine or a conference memo or move to compel something. While all of these actions are legitimate and fair actions to take, the goal is to get the Court to take a look at your docket and realize that the case is in limbo pending the Court taking action.

TREAT WILLIAMS DEATH AND THE LEFT TURN CASE

NeuwirthLawAuto Accidents, Case Matters, In the News

image courtesy of Playbill.com 2023

The actor Treat Williams died yesterday in a motorcycle crash that was probably not his fault. Treat was a staple of my youth and generally seemed like a decent guy living his life in Vermont. He was killed when a driver made a left turn across Williams’ lane of travel and Williams slammed into the car on his motorcycle.

These left turn cases are often devastating crashes because of the speed involved and impact of one car going fast and another nearly stopped.  These are often jaws of life situations that neither driver really saw coming.

The problem with motorcycle crashes is that there is little margin for error and no protection for the rider. They are often messy and upsetting cases. I have handled injures where people have lost fingers, legs, been badly burned by the road, and died after hitting things.

The quality of driving on the roads post-pandemic is pretty poor right now by all accounts. I see people making right turns into oncoming traffic and misjudging the speed of oncoming traffic. I see uber eats or other delivery drivers simply stopping on busy suburban roads and turning their flashers on to make a delivery, which is absurd and totally unexpected by other drivers doing 40mph. And, of course, there is always the person who hates cyclists. A special thanks to the sedan that kept honking at me as I was riding through Plymouth Meeting because he was upset that I was waiting for the red light and he wanted to turn right on red through me, but could not get past me because of traffic to his left. So, he had to wait. People are crazy on the roads.  Be careful out there!

SOURDOUGH: DONE AND DUSTED

NeuwirthLawIn the News

About two weeks ago, I headed down the sourdough rabbit hole. Watching a bunch of youtube videos, I made my own starter that took ten days and two tries. Then, I went through the two day process of proofing and finally baking a sourdough bread. It came out pretty well. It was missing some of the nice open crumb you would get from a pro, but it was a fun first try.  And, props to the professional bakers of the world. This ain’t easy.

Motions In Limine

NeuwirthLawCase Matters, Courts, For Lawyers

Motions in Limine are a necessary evil to me. For the non-litigators reading this, Motions in limine are requests to the Court on the eve of trial to admit or exclude certain evidence. You will never see these on TV because they are basically just part of getting a case ready for the jury to hear it and are largely case-informed judgment calls by the Judge and the lawyers. The important thing about them is that they begin to narrow down the issues that are going to be heard at the trial. As someone representing the injured person, I don’t want a jury hearing that my client had a car accident eleven years ago even if it is totally unrelated. If I don’t bring it up, then the defense lawyer might suggest to the jury that the person sues a lot, or was injured previously, or is looking for any possible pay day. If I make the motion, most likely the Court will grant it and the defense lawyer when pressed will agree that they had no intention of bringing it up anyway. So, you have to make the motion. Just to be safe.

There are other Motions that are a little dicier, but the issues need to be aired out before the trial so that the judge knows there is an issue to deal with if and when it comes up during trial. For example, mental health issues are something that I try to keep out of most trials. Does your client have a history of anxiety and depression? Was that conditioned worsened by the fall or crash? Yes, most people will have some depression worsened by being rendered inactive or having lost a car or time from work etc. There is no mystery in that. But, do I want a jury hearing that my client has a history of a diagnosed mental condition? No. Why? Well, first, there is still a stigma around mental illness and you don’t want a juror believing the client has some sort of problem unrelated to the crash and is exaggerating things. Also, mental health damages are very, very hard to prove. Did the person get more depressed? Did their medication change? You would have to have a doctor render an opinion on these issues to get them admitted most times and that is extra expense for what is usually a minor element of damages. So, a motion in limine on mental health damages and pre-existing conditions is always something to be considered.

Finally, there are Motions in Limine that pertain to specific areas of personal injury law like bad faith claims. With these, as long as they are not super new legal issues, many judges will have ruled on these issues before, so while I have to make the motion, I may know how it is going to turn out. But, again, I still have to make the motion.

Go Woke, Go Broke

NeuwirthLawCase Matters, In the News, Uncategorized

This nice headline was coined by the New York Post and Mr. Wonderful from Shark Tank. Basically, a lot of very large retailers have learned the hard lesson that not everyone thinks like you do.

This is a hard concept to get across to people. If you were a republican legislator in Indiana and you think that everyone in your state will support your anti-abortion views when you took away their right to choose, you were in for a bit of a shock. Same for Bud Light’s comical self-own. Sales are down 25%? Because not everyone thinks like their marketing team.

Not everyone thinks like you do or read the room is a notion that lawyers have to convey to clients all the time. People think that everyone lives like they do because often people similar to themselves are who they spend time with. Here is an example, a client’s story began that she was coming back from her house in Stone Harbor, down the shore and was in a bad car accident. This was a house that she owned, that was easily googled, and well over a million dollars.  After the deposition, the defense lawyer’s memory of the case consisted of “beach house, Stone Harbor.”  The client did not think that her case was worth less because of her apparent wealth. The client was used to getting her way on most things involving money and negotiation, but it took a lot of work for the client to accept that jurors were going to be less willing to award her substantial money if she plainly did not need the money. Eventually, a mediator settled the case with both sides, but it took the mediator a bit of work to explain that the beach house was coming into evidence.

We could have filed Motions in limine to keep the beach house out of evidence, but it played a role in the lead up to the crash and while clearly not relevant to me, it would have been a judgment call by a judge as to whether the beach house would be admissible. I don’t want to learn just before jury selection that the defense lawyer will be standing up shortly and saying Stone Harbor Beach Mansion in her opening statement.

FTCA UPDATE: Andrew Neuwirth at the Supreme Court? I hope not

NeuwirthLawCase Matters, Courts, For Lawyers

US Supreme Court, Washington DC

I think that among the long list of things that I do not want to do as a lawyer is be involved in a US Supreme Court case. While many lawyers would relish the opportunity to argue there, I think that it is not a good place for personal injury cases and I could see wasting a tremendous amount of time writing briefs, researching other circuits law etc. Plus, while I like to write in general, I really don’t like legal writing. Overall, I don’t see a lot of upside.

I wrote some time ago about my case involving a slip and fall at a TSA checkpoint at PHL and how the Federal Tort Claims Act and the Discretionary Function Exception (DFE) figured into it. Yesterday, there was an article in the Legal Intelligencer, our legal paper, describing the case of Xiaoxing Xi v. United States. It just so happens that the headline was that the FTCA and the Discretionary Function Exception are at the center of that lawsuit and the Third Circuit Court of Appeals heard the case and implored the US Supreme Court to address the FTCA and the DFE. Xi was a Temple Professor, who was arrested and charged as a spy for China. He filed suit for wrongful arrest and alleged a Constitutional violation. The Government responded that it was immune under the DFE. The Government won its claim at Summary Judgment and Xi appealed. The Third Circuit reversed the District Court and said that the Government was not immune and that the DFE did not apply. My case is worlds away from the Xi case but they both involve the DFA. How would I end up in the Supreme Court? Well, when there is a clear split in how different Circuits around the USA treat the FTCA, the Supreme Court will often step in to set a clear line about what the immunity is and how to apply it. Often, multiple similar cases will be lumped together to address all of the disparate issues at once.

In my case, the Government’s Motion for Summary Judgment is still pending. Regardless of what happens, the prospect of a US Supreme Court hearing an appeal on the very issue before the Court in my case is interesting. I think that whichever side wins the Motion, there will likely be an appeal to the Third Circuit and then the case will be teed up for a Writ to the US Supreme Court. I will keep you posted.

Steven Schwartz, Esq. Is In Trouble And He Blames CHAT GPT

NeuwirthLawCase Matters, Courts, For Lawyers, Law Practice Management

Why must it always be the Personal Injury Lawyers making headlines? In another new low, in Federal Court no less, it emerged that New York Attorney Steven A Schwartz, used ChatGPT to look for similar previous cases in a personal injury suit against Avianca, Inc. Airlines.  See the attached Affidavit from that case. It appears that none of the cases cited by Chat GPT were actual cases.  Rather, they were just plain old made up.

For my non-lawyer readers, this falls into the category of bad or ethical violation. How this will turn out for Mr. Schwartz remains to be seen. He does state that he has been an attorney for 30 years without a blemish on his record, so perhaps he will catch a break here. Nevertheless, lying to the Court or submitting plainly deceptive pleadings in Federal Court is like smuggling hashish into Burma or other locales where the penalty may be rather harsh. Doing so in State Court is similarly frowned upon, but may not bring the same level of outrage from the bench.

I have seen a lot of ethical violations in my time. Rarely, rarely have I ever seen real discipline. And, the cases where there is real discipline are ones that are pretty clear cut.

Here, the ethical violation is a failure of candor towards the tribunal. Basically, a lawyer cannot lie to the Court or make any sort of statement that he knows to be false. There is plenty of sloppy lawyering that I see that is not technically a failure of candor. For example, a lot of personal injury law is unchanged over the years and briefs get recycled on basic points. However, over time, cases get copied wrong or someone copies case law that does not apply. This, to me, is lazy, but not fully unethical. I must say that while I have cited the standard for summary judgment in multiple briefs, I have not read the summary judgment case law in a decade. The standard is so well accepted that it would seem a waste of time to read the cases. Am I citing something that I have not read? Yes. Did I get it from Chat GPT? No.

So, what is the difference. Well, it is a bit of a gray area I would say. I use lexis for my legal research. But, there are plenty of google searches or public legal research that may be reliable, but for this very reason, I rely upon lexis. I trust it and the community trusts it. We don’t yet trust Chat GPT.

The biggest Candor Towards the Tribunal violation that used to annoy me was when opposition lawyers would fail to cite cases in their briefs that were plainly contrary to their position. Now, I may fail to do that by accident, but that is just poor searching. Is that an ethical violation? I don’t think so, but I will look stupid and lose my argument if there is contrary caselaw that beats me.

The Chat GPT situation just doesn’t sit right because none of the cases the lawyer cited actually exist.  I ran a lexis search on two of them and they do not exist as far as I could tell.  Further, if you really want to get into the weeds, why is a lawyer citing caselaw in a New York case that is from all over the Country? No good reason for that. The one case that might really get the lawyer in trouble is the citation to a Second Circuit Court of Appeals case.  Why? Well, citing to the Second Circuit is like citing to the Judge’s boss or overseer. It suggests that there is reliable authority and one that must be followed.  In reality, the citation to the Second Circuit case actually brings you to a Third Circuit case, so it is just plain off base. Nevertheless, it is a little more nefarious and concerning.  Below is the Pennsylvania ethical rule.

Rule 3.3 – Candor Toward the Tribunal(a) A lawyer shall not knowingly:(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence before a tribunal or in an ancillary proceeding conducted pursuant to a tribunal’s adjudicative authority, such as a deposition, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Here is the affidavit: