November 16, 2008 by Zale.

It has been suggested to me that I should take just about any injury case that comes up, even if I don’t see merit in the case.  I disagree with this approach.  I only take cases that I believe have merit.  To do otherwise would support frivolous litigation.  It also does a disservice to the client.  If they have a bad case, the attorney should be the first to tell them.

Posted in Litigation, Injury Law, Insurance Law | No Comments »

November 9, 2008 by Zale.

Most attorneys in Tennessee do not take slip and fall cases without taking a long hard look at them.  For me, I won’t just take one to add to my file count.  I want to make sure that the hazard is NOT open and obvious.  I prefer having proof that the property owner was aware of the hazard.  I also prefer for my client to be completely free of any fault in fall.

Normally, the above is not the case.  Most of the cases I was involved with as an adjuster, the injured person who fell was simply not watching what they were doing.

So, if you have a slip and fall, I will be happy to talk with you about it, but don’t get offended if I don’t take it.

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October 14, 2008 by Zale.

Punitive damages are those that punish another party for fraudulent, intentional, reckless or malicious behavior.  Recently plaintiff Mohr received a verdict over $53M for the deaths of his family members as a result of a motor vehicle accident.  However, he, as the administrator of the estates of the deceased, will not be able to collect all of that.

The courts don’t like, what they consider, excessive punitive damage awards.  Ever since State Farm v. Campbell, the court likes to keep punitive damage awards under 9 times the compensatory damage award.

In Mr. Mohr’s instance, the Tennessee Court of Appeals said that a 4 times multiplier would be sufficient under the U.S. Constitution, so he loses $13.8M.  At the end of the day, Mohr’s attorneys did a good job of finding the issues with the design of the Mohr’s vehicle and enabling the estate to collect more than it would have, had this just been your average car wreck.  However, had Chrysler taken better care of designing the Caravan in question, maybe Mr. Mohr would not have had to fight this battle in court, and maybe he would still have his loved ones.

In case you want to read the whole case, here it is.

If you have lost a family member due to an automobile accident in Tennessee, contact our office to discuss your case.  Fatalities are never easy or comfortable to deal with, but after being an insurance adjuster for over 11 years,  I’ve dealt with many of them.

Posted in Litigation, Injury Law | 1 Comment »

October 6, 2008 by Zale.

Medicare has announced that it is not paying for medical errors, also known as medical malpractice.  Huh?  What happens if there is a dispute as to whether or not there was actually a medical error?  Sounds to me like the patient is going to be the loser in that battle.

I see a two pronged problem here.  I don’t believe in big government programs, so I don’t really like Medicare in the first place, BUT there are those that have come to rely on it whether or not its a good program.  So, the first problem is this big government program in which governmnet is inept at running.  The second problem here has to do with Medicare’s ability to subrogate.

Subrogation is how insurers get their money back from the liable party.  If Medicare were effective at subrogation, then they would not need to do this.  They have every advantage in the world at collecting their subrogation, and still it appears that they are ineffective.

So what we have here is a government program that is ineffective at part of what it should be able to do, so its going to push those costs off onto the patient.  Unfortunately, this is why people need their own attorney in dealing the medical malpractice.

Here’s the article if you would like to read more.

Posted in Injury Law, Insurance Practices, Insurance Law | No Comments »

September 30, 2008 by Zale.

Slip and falls are some of the hardest cases for plaintiffs to win in Tennessee.  In order to win, one of the key elements the plaintiff my prove is that the premises owner knew or should have known of the hazard.  You also have to show that you, the person who is injured, should not have seen or noticed the condition, especially if it is “open and obvious”.

In my eleven years of handling insurance claims, I handled quite a few slip and fall claims.  Only a few truly seemed valid.  Here’s a recent case where the plaintiff was unsuccessful in proving the above.

Posted in Litigation, Injury Law | No Comments »

September 30, 2008 by Zale.

Be careful if you do.  Here’s a recent Tennessee Court of Appeals case where Farmers asserted an exclusion against one of their policyholders.

Everyday individuals trying to make a living use their personal automobiles to conduct business.  Often, this is encouraged by their employers.  Its good for those individuals to check their insurance policy to make sure their business activities are covered.

It seems to be a fairly rare instance where the insurer for a personal auto policy asserts this type of business use exclusion, since they are usually fairly narrow exclusions.  The point of the exclusion is for the vehicle owner to get a commercial auto policy, which is designed for business use vehicle.

In this instance, the exclusion stated:  “[w]hile used in employment by any person whose primary duties are the delivery of products or services[.]”  Both the trial court and the Court of Appeals agreed with Farmers on this one and the policyholder was out of luck.

Posted in Litigation, Injury Law, Insurance Practices, Insurance Law | No Comments »

September 24, 2008 by Zale.

No.  Surprised?  Heard otherwise?  Most states look at the comparative fault of the parties when considering who should pay for an accident.  NORMALLY, when one car rear ends another, the one in the rear is at fault.  However, there are instances where the vehicle that gets rear ended is the one at fault.

Don’t believe me. Well, here’s a recent case from another state that illustrates this point.  Believe it or not, there are folks out there that try to cause this type of accident just to get paid.  Unfortunately, some insurance companies believe that that is every claim they get, which that is simply not the case.  Now, I’m not saying that this is the case in this recent case, but it does appear that the jurors, at least, liked the defendant more than the plaintiff.

Posted in Litigation, Injury Law | No Comments »

September 24, 2008 by Zale.

Generally a slip and fall in Tennessee is a losing battle.  Why?  Comparative Fault or, simply stated, “watch where you are going”.

Here’s a recent TN case where the plaintiff (the injured one) was going into a bank, while it was icy outside.  It appears that the drive through windows was open at the time, but he parked, got out of his car and fell on the ice.  I suspect that the plaintiff was advancing a theory that the bank should have put out more salt or had all the ice cleared.  Well, maybe yes, but no state has ever held that a property owner has the duty to hold back nature.  Which is exactly what that theory often amounts to.  More importantly, the plaintiff recognized the danger, which was “open and obvious”, and decided to take his chances anyway.

This case tells us that “open and obvious” dangers are still a viable defense in Tennessee.  If we did not have drive through windows, ATMs and online banking, the plaintiff might have had a better shot, but as it is, he really did not have much of a reason to get out of his car, or  even leave his house.

Gotta go, I need to log on and check my bank balances….

Posted in Litigation, Injury Law | No Comments »

September 4, 2008 by Zale.

For those of you who have visited my website in the past, you might notice that it is different.  Instead of trying to focus my practice on Injury, Criminal AND Business Law, I’m now trying to emphasize the Injury portion of my firm.  Why? Because I spent so much time assisting people with their injury claims when I was an adjuster, I want to do that now as an attorney.  Sure, I still take the other cases, but that is not the focus of the firm.

Posted in Criminal Law, Injury Law, Business Law, General Law | 1 Comment »

August 24, 2008 by Zale.

So you believe that the person that hit you did it intentionally.  You think that that fact will help you win over a jury.  Well, maybe so, but that does not mean their insurance company will pay up.  That’s right.  Insurance policies are designed to pay for the NEGLIGENT actions of the policyholder, not the INTENTIONAL acts of the policyholder.

So, when you are talking to the adjuster and you think that telling the adjuster that their policyholder INTENTIONALLY injured you, don’t be surprised when you promptly receive a denial letter from them.

If you have any more questions about this topic, or a similar personal injury or insurance related topic, contact the Dowlen Law Firm, PLLC, serving all of Middle Tennessee.

Posted in Injury Law, Insurance Practices, Insurance Law | No Comments »