Pleading Ignorance Archive

What Exactly does Insurance Cover? Maybe More than you Think

November 24th, 2010. By janem

Understanding the intricacies of vehicle insurance puts my brain into a fog. Fortunately, James Bedard, someone I recently interviewed regarding his legal malpractice complaint, shares some insight. “I wonder how many people suffer financially because they are not aware of what coverage they have,” says James, “and the insurance company sure isn’t telling them.” (Unfortunately, James lost his case but he isn’t giving up.)

James Bedard: Insurance can be very confusing and I think that most people do not understand what they do have in coverage.

Under many state laws, there are two types of insurance coverage.

• Uninsured (UM) means the other party has no insurance so you have to carry that UM insurance yourself.
• Underinsured (UIM) means you don’t have enough insurance.

For instance, if someone hits me and they only have minimum insurance (that the state requires), but my injuries exceed that amount, I can claim my own coverage for the difference. In 2001, someone ran a red light and I was injured. He only had $50,000 coverage but I had $1 million coverage on my truck; I was able to collect $50,000 from his insurance company and my attorney filed a claim with my employer’s insurance company for $950,000.

UM and UIM Coverage

Most every state makes it mandatory for everyone to have UM and UIM coverage. So every driver is covered if they are in an accident caused by a driver who is either not insured or doesn’t have enough insurance.

As well, most states require that you have to have the minimum coverage of $25,000/50,000/10,000, which means $25,000 for injury to one person, $50,000 for two or more people and $10,000 for property damage, e.g., car, house, etc.

When you take out your coverage it is automatic that your coverage for uninsured (UM) and underinsured (UIM) is the same. So if a person who hits you has no insurance, you are covered for the $25,000/50,000/10,000.

Say your coverage is $100,000/300,000/100,000 and you are hit by a person who only has the 25,000/50,000/10,000; your car was totaled and it was worth 50,000 dollars. You could collect the $10,000 for property damage from the other party’s insurance and fall back on your insurance for up to $90,000, which is the difference. And your car would be totally covered.

On the other hand, say you had the same coverage as the party that caused the accident. All you would receive is their $10,000 because there is no difference from your insurance policy and their policy.

It seems complicated but it really is quite simple. Most States allow a person to reject the higher UM and UIM coverage and lower it to the minimum coverage.

For example, the 100,000/300,000/100,000 coverage I had meant that the UM and UIM coverage was the same. But you could save a few dollars and reject that coverage and reduce it to 25,000/50,000/10,000. So if you hit someone they would be covered for the higher amount but if they hit you and were not insured, you could only fall back on the 25,000/50,000/10,000.

Why anyone would want to insure themselves and their family for less then the general public makes no sense–because you don’t save that much.

Insurance Incidents

My friend asked me how she was going to get her car fixed, because the person who hit her had no insurance and did not have anything to sue for. I told her to call her agent and file a UM claim. She said her coverage was $25,000/50,000/10,000 and I told her the last figure of $10,000 was for property damage–the maximum she could recover for her car. She called me later and thanked me.

My son’s friend got his hand caught in another friend’s car door and he could not use his hand for work. He worried how he was going to pay his bills. I told him to call his agent and tell him he wanted to file a Personal Injury Protection (PIP) claim, which is mandatory in most states. He called me later and thanked me–he was getting $900

a month for lost wages and up to $4500 for medical expenses.

A little girl and her mother were recently in a car accident. She was worried that her personal insurance wouldn’t cover the accident and pay her bills. Again, I told her to contact her agent and file a liability claim for their injuries and the PIP for her lost wages. Her little girl would suffer permanent facial scars and I told her not to settle for less then her maximum coverage, which was $25,000. She received all of it.

Truck vs Automobile and State vs Federal Claim

Most states also have statutes that define the words used in the statutes. For example, Kansas statute 40-284 establishes what your ” Automobile Liability ” insurance will be for the UM and UIM

State statute 40-298 and statute 8-126(x) define an ” Automobile ” as a passenger vehicle designed primarily to carry 10 or fewer passengers, which is not used as a truck.

Statute 40-284 also mentions a ” Motor Vehicle ” State statute 40-276 defines ” Motor Vehicle ” as in statute 40-284 to mean a vehicle of a passenger or station wagon type, that is not used as a public livery conveyance for passengers, not rented to others and any four wheel motor vehicle with a load capacity of one thousand five hundred pounds (1,500) or less, which is not used in the occupation or business of the named insured.

This makes it very clear that statute 40-284(c), which is used to reject and reduce the UM and UIM coverage, is not meant for trucks or any vehicle or truck used in the occupation or business of the person, who is insured. This statute is for cars driven by the citizens of the State of Kansas.

But insurance companies use this statute to reject and reduce the coverage on large trucks, used in the business of the named insured. As you can clearly read, that is not allowed. The definitions I have given you above are the exact definition of those statutes and every State has a similar statute.

You would not believe how many cases are lost to the insurance companies, simply because attorneys do not know the regulations/laws of the FMCSA and the PHMSA.

In my research I found a case where a driver had his little girl with him and a pickup caused the truck to crash. The little girl had injuries over $200,000 and their attorney filed a State UIM claim because the pickup did not have enough insurance coverage.

When they filed on the truck insurance, the insurance company came up with a rejection to the coverage and reducing it to $50,000. So they got nothing.

I researched the case and could find no rejection besides the form the insurance company submitted. I also found that the little girl was covered under the public liability of the truck. I even confirmed it with the Federal Motor Carrier Safety Administration (FMCSA). So she should have been covered for up to $1million coverage.

But because their attorney did not know the FMCSA regulations that the truck was under and then filed a State UIM claim (it should have been a federal claim), they lost the case. Unfortunately, when I checked it out, the statute of limitations had run out on their case. So it was all over, insurance company wins.

What You Can Do

Clearly, it is up to you, the insurer, to be pro-active. Not all insurance companies are created equally and not all insurance companies act in your best interest. It’s worth the time to study your insurance coverage and get good legal advice before you file a claim. And please take James’s advice: ” Always ask your attorney why he does or doesn’t do this or that…”

Tags: Car Accident, Car Insurance, Insurance
Posted in Pleading Ignorance | 3 Comments »

Whistleblower Lawsuit Pays Off Big For Former GSK Employee

November 22nd, 2010. By Kristine B

Talk about your big payouts. A woman who acted as a whistleblower against GlaxoSmithKline will receive a whopping $96 million for her role in bringing the company to justice. Who knows, maybe eventually an Erin Brockovich-style movie will be made about her, too. This week, Pleading Ignorance looks into the story behind the whistleblower who helped officials in their case against GlaxoSmithKline—and what qui tam is all about.                                                 

The woman who acted as whistleblower in this case was Cheryl Eckard, who worked at GlaxoSmithKline from 1992 through 2003. When she was asked to visit the now-closed plant at Cidra, Puerto Rico, following citations for violations at the plant, Eckard was a manager of global quality assurance for GlaxoSmithKline. 

According to The Wall Street Journal (10/28/10), Eckard found massive problems at the Cidra plant, leading her to make recommendations to her superiors about how to fix things up. Those recommendations included to stop shipping all products from the plant and to notify the FDA about product problems, such as problems where drugs of different types were mixed up in the same bottle. 

But, according to the lawsuit, Eckard’s superiors ignored her, leading to her eventually telling them she would not be part of a cover-up. In 2003, Eckard was reportedly fired. Despite the firing, she says she continued to try to convince GlaxoSmithKline to make changes to the Cidra plant. It’s a screenplay waiting to happen: Woman sent to investigate plant, woman makes recommendations, woman is fired after following up on recommendations, woman is repeatedly ignored, woman files lawsuit against large corporation… 

Eventually, Eckard called the FDA, which led to the FDA investigation. Meanwhile, Eckard filed a lawsuit against GlaxoSmithKline under the US False Claims Act. Then, in 2010, GlaxoSmithKline agreed to pay $750 million to settle charges of allowing adulterated drugs onto the market. Of that, Eckard will receive $96 million, reportedly the largest award given to a single whistleblower in US history. 

A provision of the False Claims Act, also known as the Qui Tam Statute, allows private citizens to sue a person or company that knowingly submits false bills to the federal government. Although the qui tam lawsuit is filed by a private citizen, it is done on behalf of the federal government. Furthermore, it protects plaintiffs who are demoted, suspended or discriminated against because they have filed a claim under the False Claims Act. If a qui tam suit is successful, as was the case here, the whistleblower is entitled to between 15 and 30 percent of the money the government recovers. The whistleblower is also eligible for between $5,000 and $10,000 per false claim. 

A lawsuit filed under the False Claims Act is first served on the government and is not served on the defendant until the court orders it be served. The whistleblower is not allowed to discuss the lawsuit while the government investigates the allegations detailed in the complaint. 

The sad thing is that if GlaxoSmithKline had done the right thing from the start and listened to Eckard’s concerns, the lawsuit could have been avoided. Unfortunately, many companies see little or no benefit in doing the right thing, until doing the wrong thing costs them a lot of money. 

Pleading Ignorance cheers Ms. Eckard, who continued to fight to ensure the right thing was done, even when it meant she lost her job. Sometimes, good things happen to people who fight for them.

Tags: GlaxoSmithKline, GSK, Qui Tam Lawsuit, Whistleblower
Posted in Emerging Issues, Pleading Ignorance, Whistleblower | 2 Comments »

It’s Unacceptable: Vets Face a Battle on the Homefront, too

November 11th, 2010. By Kristine B

With Veterans’ Day upon us, Pleading Ignorance takes a break from explaining legalese and takes the opportunity to thank veterans for all they have done—and all they have sacrificed. And we look at some of the battles veterans face when they return home, and ask why we can’t do more for the people who have sacrificed so much?

Each year on Veterans’ Day, we take the time to pay tribute to those who have sacrificed so much—in some cases, their lives—in the service of their country. We take a moment to remember those who died and give our respect to veterans who so bravely fought, and continue to fight, so that many of us don’t have to.

I’d like to think that Veterans’ Day still means something, but some of the thank you’s might seem a bit hollow, considering the treatment that veterans return home to. After facing horrors that many of us can’t even conceive of, they come home to long and often complex claims processes, face having their very real claims of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) declined or questioned, and receive sometimes questionable medical treatment at the hands of Veterans Affairs medical centers and hospitals. They face medical malpractice and unreasonably denied disability claims.

It’s unacceptable.

Back in 2007, veterans spoke before Congress about horrific conditions at Walter Reed Army Medical Center. Those conditions included one sergeant being released to outpatient treatment within a week of being shot in the head, despite having a TBI and having lost an eye. The same sergeant faced delayed treatment because of lost documents and ultimately had to take his medical care into his own hands because no one from continuing care would contact him.

At the time, acting secretary of the Army, Pete Geren, stated, “We have let some soldiers down,” (as quoted in The New York Times (3/6/2007).

It’s unacceptable.

These are people who have given up so much for their country—they deserve more than to be “let down”. They deserve the best possible medical care, not weeks and months of waiting for Read the rest of this entry »

Tags: VA Disability, Veterans, Veterans Day, Vets
Posted in Pleading Ignorance, Veterans | 5 Comments »

Do you have a Veteran PTSD Claim? You may now…

October 27th, 2010. By Kristine B

On July 13, 2010, Veterans Affairs put in a new rule regarding Post Traumatic Stress Disorder (PTSD). This change to the rule could mean that you are now eligible to file a VA PTSD claim where before your claim was denied. Ben Stewart, attorney at Stewart Law P.L.L.C. explains the changes in this week’s Pleading Ignorance. 

“The new rule is a relaxation of the evidentiary standard for establishing in-service stressors for claims involving PTSD,” Stewart says. 

Basically, the new rules make it easier for veterans to prove they have a disability (specifically, PTSD) that was caused by stressors related to their service. So, veterans who were previously denied PTSD claims may now be eligible to file claims. 

How does the new rule make the claim easier for veterans? Prior to the rule change, veterans had to prove that they experienced a stressor that was related to hostile military activity. Now, they only have to show that their PTSD is linked to a “fear of hostile military or terrorist activity and is consistent with the places, types and circumstances of the veteran’s service,” (from a VA news release; 07/12/10). 

According to the American Forces Press Service, approximately 400,000 veterans currently receive compensation benefits linked to PTSD. Of those, approximately 70,000 were veterans of operations Iraqi Freedom and Enduring Freedom. 

For right now, however, the claims are not being applied retroactively. This means that you won’t receive benefits from the time your first claim was filed and denied. Rather, you have to file a second claim and the benefits will be applied from the date of the second application. That said, Stewart says he anticipates an appeal will be filed to determine whether the VA should be responsible for retroactive benefits in the case of PTSD. 

Stewart also alleges that the VA has used personality disorders to attempt to avoid paying claims of PTSD. They can do so because personality disorder isn’t considered service-related. 

“Personality disorders have been used by the VA to show that service people were not injured Read the rest of this entry »

Tags: Ben Stewart, VA Claims, Veterans, Veterans PTSD
Posted in Pleading Ignorance, Veterans | 10 Comments »

VA Claim Denied? Attorney Ben Stewart Gives Advice

October 13th, 2010. By Kristine B

Just about anyone who’s a veteran has had a Veterans Affairs claim at some point in his or her life. Those who haven’t filed a claim likely will at some point in the future. And yet, despite the claims process being somewhat simple, the appeals process can be complex, and if your claim is denied, it’s good to know what rights you have. 

Today, Pleading Ignorance looks at how to file a VA Claim—and what to do if it gets denied. We asked attorney Ben Stewart of Stewart Law, P.L.L.C. for some pointers.

So, to start, let’s assume you’ve filed your VA claim. Once you’ve filed that paperwork, the VA will make a decision about what benefits will be provided to you, if any. So far, so good. 

What to do if the VA Denies your Claim

But, if the VA denies all or part of your claim, you have options—three in fact:

1. Reapply for benefits

2. Request a review of the decision

3. File an appeal 

While you can try to reapply for benefits or request a review of the VA’s initial decision on your claim, you may have more success if you file an appeal. If you appeal the decision you may want to have a lawyer help you. This is because a lawyer who is experienced in veteran claims will know the applicable regulation that can be used to overcome a denial. The lawyer can also represent you in a hearing before the VA appeals board. 

Making things complex is that laws concerning veterans’ benefits are constantly changing. Some of those changes are retroactive and some are only applicable from the date they are put in place. With retroactive changes, you may have previously been denied benefits for a specific condition but can now reapply and receive back benefits from the date of your previously denied claim. 

When the changes are only applicable from the date they are put in place, it doesn’t matter if you previously met the new requirements for benefits, you won’t receive back benefits. But, you may still be eligible to start receiving benefits from the point the regulation was changed going forward. 

For example, the VA has recently relaxed the rule for establishing claims of veterans post-traumatic stress disorder (PTSD). The move makes it easier for veterans to prove they have a disability due to service-related stressors. Veterans who did not qualify for PTSD benefits before, or who were denied benefits under previous rules, may now qualify. But, they will not receive benefits retroactive to their first claim. Rather, they will receive benefits starting from the date of the application filed after the rule change. 

Furthermore, some changes in benefits related to Agent Orange use in Vietnam will be retroactive to the filing date, meaning veterans should file their claims as soon as possible. 

“File now,” says Ben Stewart, attorney at Stewart Law, P.L.L.C. “Even if your claim is denied, you can start the claims period. That way, if it is accepted later, your benefits will go back to the original date when the claims were denied.” 

New medical conditions added to the list of those linked to Agent Orange include heart disease, Parkinson’s disease and B-cell leukemia. 

“There are new regulations all the time, that’s why veterans should consider a veteran’s benefits attorney who has been tracking changes in the law and advocating for veterans,” Stewart says. 

J. Benton Stewart II, attorney at Stewart Law, P.L.L.C., is an experienced prosecutor, municipal magistrate and civil trial lawyer. Stewart Law specializes in the following areas of practice: Professional Negligence, Legal Malpractice, Securities Litigation, Class Action Litigation, Products Liability, Personal Injury and Wrongful Death.

Tags: Agent Orange, Ben Stewart, Pleading Ignorance, VA Benefits, VA Claim, Veterans, Veterans Benefits, Veterans PTSD
Posted in Pleading Ignorance, Veterans | 6 Comments »