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.

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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.

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September 26, 2008 by Zale.

Farmers Insurance just got hit for a $130M verdict, $80M of which was for bad faith and punitive damages. Wow!

In case you didn’t know Farmers is one of those companies that has created for themselves a reputation of being very hard to deal with when it comes to resolving claims.  I still don’t understand the logic behind a company making such a name for itself in the market place.  Wouldn’t it be better to have a reputation of being fair to the policyholder? Don’t kid yourself.  Someone on that jury knew of Farmers reputation.

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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.

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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….

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September 24, 2008 by Zale.

I noticed this recent TN bad faith case.  In short, this is one of those cases where the insured’s property burns down and the insurance company insuring the property calls the fire arson, which is not covered.

Let’s set the stage.  If you have a claim like this, one of the first people out there, other than the property adjuster, is the C & O or Cause and Origin expert.  They are there to try to figure out why this piece building, all of a sudden, decided to increase it’s output of carbon and, consequently, lower its roof line to the ground.  The adjuster is going to have the insured fill out proof of loss statements and that sort of thing.  If the insurance company suspects that the policy holder or insured intentionally set the fire, then the  insured can expect to have to sit for an Examination Under Oath, which is often followed by a denial of coverage.

Well, in this case, the jury found that they believed that the insured had made some misrepresentations as to what they had.  This happens all the time, but the stuff that was misrepresented was no where to be found in the debris. So, the court said “no coverge for you!”

What do we learn from this? Just be honest.  At the end of the day, its only money.  Is your integrity really worth trying to inflate a claim?

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

August 22, 2008 by Zale.

When I was a claims adjuster, I had many instances where attorneys would file suit and then not serve the summons because they only filed the suit to preserve the statute of limitations.   They delayed serving the suits on the defendants while they attempted to get the claim resolved.  Well, here’s a recent Tennessee Court of Appeals case where that really bit the attorney in the rear.

The Rule of Civil Procedure that controls this is 4.01(3) and it states:

If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.

So the delay on the part of the attorney of serving the complaint on the defendant makes it as if the complaint was never filed.  Ouch!

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August 15, 2008 by Zale.

Yes.  According to a recently released case, if you walk up on your seriously injured child after a car accident and witness them lying lifelessly on the ground bleeding profusely, you can.  This was actually an Underinsured Motorist case, so the claim was against the aggrieved mother’s own insurance policy.

I suspect that this case will now be settled, instead of going back to a jury.

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July 25, 2008 by Zale.

I’ve handled fatality cases before, when I was an adjuster.  They are never easy.  The Tennessee Supreme Court just decided a case where the plaintiffs were awarded $18.4M in the fatality of an infant.

There are those that would say that we need tort reform and that $18.4M is excessive for this.  I say the founding fathers got it right.  The monetary value for the death of a child coupled with an auto manufacturer’s negligence should be determined on a case by case basis by a jury, not legislation.

You can read more on the case here.

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July 18, 2008 by Zale.

Here’s a few thoughts that might help you as you go before the judge.

• Dress nice.  Dress as if you were going to church or a funeral.
• Be courteous to the judge.  After all, he or she is the one deciding your case.   Also, I don’t care if you grew up with the judge or not, refer to him or her as “Your Honor”.
• Do not lean on the podium, just stand there, straight up.
• Do not argue with the judge.  It will only make things worse.
• Do not drink or take drugs before you come into court.  Do not drink so much the night before that you still smell of alcohol the next day, in court.
• If you have worked a plea deal out with the DA, do not try to renegotiate it while standing in front of the judge.
• If you tell the judge you are going to get an attorney, go get one.
• Be nice to the clerks and secretaries, often they are the eyes and ears of the judge.

These are just a few tips from the errors I see in court.  I’m sure there are many others out there, but just remember, you are going to court, not Wal-Mart.

Posted in Litigation, Criminal Law, Injury Law, General Law | No Comments »