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Can't Wait For The Government To Pass Tort Reform in Your State? Here Is A Form You Can Sign That Voluntarily Opts Your Family Into Tort Reform. Is This What You Really Want? If So, Go Ahead And Sign It!!
Healthcare Spending Greater in Northeast States
D.C. Government pays $650,000 to guardian of mental patient who gouged eyes out, going blind.
A New York single mother had both breasts removed after a mix-up in a medical lab.
Hospital Residents Still Overworked

Accounting Malpractice Attorney

Unfair Insurance Practices Attorney

Kentucky Nursing Home Neglect Attorney

General

I would like to take this opportunity to write to your law firm and thank you for coming through for me when I lost hope in my previous attorney.
We will gladly be a reference for you, and we certainly will recommend you as the attorney to have in Louisville. You have a gift in the way you are able to communicate with your clients and within the legal system.
My father would have been so proud to know that his case was driven home with such passion and genius. Thank you for giving that jury every tool they needed to hold those people accountable for the torture they inflicted on my Dad.
Thank you, thank you, thank you, thank you, thank you, thank you...
You have now made it possible for me to rest assured that I have everything I need now and in the future to cover the expenses of my disability

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Kentucky Accident Attorney

7/27/2009
Hans G. Poppe
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How (Not) to Hire a Lawyer....

Previously, I posted The Truth about TV Advertising Lawyers. I later learned I wasn't the first person to point out the obvious. Aaron Larson, a Michigan attorney, has a website devoted to answering the question "how to hire a lawyer."

On it he discusses the benefits of hiring a contingent fee attorney, "Many attorneys take certain types of civil suits, particularly personal injury cases, on a "contingent fee" (or "contingency fee") basis, where they do not charge an attorney fee unless they recover money for you. Please note that there are legal costs involved in litigation, and that ordinarily you will be required to repay those costs even if you lose. Almost every state limits contingent fees for personal injury and workers' compensation cases. If your case is potentially worth a lot of money, you may be able to negotiate a reduction of the attorney's contingent fee -- however, the best personal injury attorneys are sometimes able to recover substantially more money for their clients than attorneys with lesser skills, resulting in a greater award to you regardless of the percentage taken by the attorney." (emphasis added)

He goes on to explain "One of the best ways to find an attorney is to consult an attorney you trust. If you do not know any attorneys, ask your friends for names of attorneys they trust. It is not important that the attorney can handle your case -- what is important is that the attorney is likely to comprehend the issues of your case, and is well-positioned to know which attorneys in your community have the skills to handle your case. Even if the attorney cannot personally take your case, he will often be able to refer you to an attorney who can."

He also cautions, "A number of commercial on-line directories claim to screen their attorneys, or claim to list only highly qualified attorneys. Most are not being completely honest. Regardless of their promises, most on-line directories will list any attorney who pays the required fee, and there is absolutely no guarantee that the listed attorneys are qualified to handle your case."

And finally, he issues the same warning I did in my post. "Should I hire the guy with the 1-800 number, and all of the ads on TV?

Generally speaking, television and radio advertisements are a bad way to find an attorney. Many advertisements are paid for by referral agencies, which collect large numbers of calls and then divide them up between member attorneys. Even when the advertisements are paid for by a law firm, often many of the cases are referred out to other firms who share the enormous cost of advertising. Most of the time, the attorney with the big advertising campaign will not have an office near you. Unless your case is worth a lot of money, you may well find that you are quickly referred to a different firm or that you can't get much attention for your case. There is something very important to remember, when it comes to hiring a personal injury lawyer -- some of the best personal injury attorneys do little or no advertising. They get their cases through "referrals" from other attorneys, due to their reputations for doing good work and getting good results. Should I hire the guy with the big "yellow pages" ad? If you look at the "full page" ads in the yellow pages, you will likely find that there are two types. The first type is an ad for a local attorney, who has chosen to pay for the full page. The second type is an ad for an attorney from outside the area, sometimes from the same attorney who runs the huge television ad campaigns. Typically, the biggest ads are from "personal injury" firms, who hope that their large advertisements will bring them large numbers of injury cases. The better personal injury attorneys and firms typically do pay for full-page ads. However, as was previously noted, some of the best personal injury attorneys do little or no advertising at all. Also, there are many attorneys who buy the largest ad that they can afford, in order to make their practices appear better than they really are. If you look through the yellow pages, you will see that most attorneys claim to specialize in "personal injury" cases. Many of these attorneys have handled very few personal injury cases, and some have never had even a single personal injury case. The yellow pages can provide some degree of confirmation that a particular law firm is established, but even a big advertisement does not certify that a firm is qualified to handle your case."

Hans

Labels: advertising attorney contingency fee injury ads lawyer personal injury tv lawyer

6/11/2009
Hans G. Poppe
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Leveling The Playing Field...

Recently, a local Louisville personal injury lawyer filed the first lawsuit against the Louisville Zoo for injuries his client received after the zoo's train derailed. Nothing unsual about it. Nothing unusual at all, including the sarcastic and baseless attacks that were launched against the attorney on the Courier Journal's website in the comment section following the story.

What people don't understand is that most personal injury lawyers don't file baseless lawsuits. There's no money in doing so. Trust me, insurance companies don't pay big money for frivolous claims (heck, they seldom pay big money for legitimate claims). A lawyer that works on a contingency fee (meaning she doesn't get paid unless she wins money for her client) has no incentive to file a lawsuit and incur thousands if not tens or hundreds of thousands of dollars in expenses getting the case ready for trial. Think I'm exaggerating? I'm not, in my last three trials we spent in excess of $100,000 getting each of them to trial.

Contingency fee lawyers are just like any other business owner, they must turn a profit to pay the salaries of their employees, the rent, and other overhead and expenses. If they fail to do so, they are not in business long. My respected colleague John Day in Nashville has a great post on this topic.

Hans

Labels: attorney insurance lawsuit personal injury tort reform

5/8/2009
Hans G. Poppe
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Guess What Forbes Magazine Says We Need More Of? The Answer Will Shock You....

It's no secret that Forbes Magazine hates lawyers. Especially trial lawyers. After all, aren't the trial lawyers the ones running the economy into the ground, forcing those nice insurance companies to raise premiums and making it impossible for doctors to deliver babies? (don't forget trial lawyers are also probably responsible for acide rain, global warming, famine, locusts, termites, etc.)

So, why is Forbes now saying we need more trial laywers, not less?! Well it seems that Forbes is concerned with all of the foodborne illness that come from contaminated foods that are not properly prepared or packaged. William Baldwin writes "One possible solution is more government and more laws. Those familiar with the proclivities of this magazine will not be surprised that I take a dim view of this solution (and, in particular, of the proposed Food Safety Modernization Act, which would bury food preparers in paperwork). No, I would prefer to have the same government and the same laws, but--here's the surprise--more tort lawyers."

Baldwin concludes by saying "Add technology to tort law and you get a powerful force for safety."

Something us trial lawyers have known and preached for a long time. However, it isn't limited to food, you can thank lawyers for seatbelts, airbags, kids pajamas that don't burst into flame, and a million other things that keep people safe. It's about time someone over at Forbes recognized the vitally important role lawyers play in society.

hans

Labels: attorney consumer protection lawsuit lawyer litigation

2/12/2009
Hans G. Poppe
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The Myths of Arbitration

I hate mandatory arbitration agreements, especially in healthcare cases. Nursing homes force residents, or their family members, to sign these agreements before admission to the facility. They then injur the resident and hide behind the arbitration agreement to shield them from have a jury pass judgment on their care in an open courtroom that is subject to public scrutiny. Many of these companies, and the legislators whose pockets they line with campaign contributions, point to all sort of supposed "benefits" to arbitration. These benefits are mostly myths:

THE ARBITRATION FAIRNESS ACT
MYTHS AND FACTS

The Arbitration Fairness Act (AFA) would continue to allow voluntary arbitration while preserving the right to trial by jury. The bill would prohibit a corporation from forcing a consumer into a rigged mandatory arbitration system where the corporation hand-picked the arbitrator and all of the rules of the process before a dispute even occurred.

Myth: The AFA prohibits arbitration.
Fact: The AFA encourages voluntary arbitration; it only prohibits corporations from forcing mandatory clauses on consumers without them having a chance to negotiate the terms and often without them knowing about it.

Example: When admitting his father into a nursing home, Charles Miller Jr. signed a lengthy contract that, unbeknownst to him at the time, contained a binding mandatory arbitration clause. His father was not seen by a physician until three weeks after his admission, during which time he lost 19 pounds and suffered from dehydration and pneumonia, all of which led to his death. Charles Miller Jr. filed a claim against the nursing home corporation, but a court held that because he had signed this contract, he would be forced into arbitration for his claims against the nursing home, under the terms the nursing home corporation chose to put into the contract. Because Charles Miller Jr. had unknowingly signed a contract that contained a mandatory arbitration clause before any dispute had arisen, he was bound by its terms, no matter how unjust.

Myth: Most consumers favor binding mandatory arbitration.
Fact: Consumers favor voluntary arbitration and being given the choice to arbitrate. Would an employee with a claim against Halliburton want Halliburton deciding how her claim should be handled? Would a homeowner with a claim against his home contractor want the contractor deciding how his claim should be handled?

The Chamber of Commerce's recent study, which purported to show that voters did not support HR 3010, asked voters: "If you could choose the method by which any serious dispute would be settled between you and the company, which would you choose?" (Emphasis added.) But what they didn't tell these voters is that binding mandatory arbitration takes away a consumer's choice. Under the current system, consumers are not allowed to choose which option is best for them. They are not allowed to choose to file a claim in court nor are they allowed to choose who the arbitrator will be, or even what state they will have to arbitrate the claim in. Instead, they are forced into an arbitration system that is set up to favor the corporation and trample on the rights of the consumer. When consumers are given the choice to arbitrate after a dispute has arisen, they gain bargaining power and are better able to enter into an arbitration system that is fair.

Myth: Arbitrators are neutral, unbiased decision-makers.
Fact: Binding arbitration favors corporations because only corporations are repeat users of arbitration companies.
If an arbitration company wants to be used in a company's mass consumer or employment contracts, the arbitration company has a huge financial incentive to appear favorable to those businesses in arbitration proceedings. Why would a company choose an arbitrator that rules against them?

Myth: Arbitration is cheap and more accessible to consumers.
Fact: Arbitration is so expensive that most consumers will not be able to pursue their claim against a corporation because they can't afford the costs of the arbitrator.

Under mandatory arbitration clauses, consumers must pay steep filing fees just to initiate a case-seldom less than $750 – and pay their share of the arbitrator's hourly charges, which are routinely $400 or more per hour. All these fees must be deposited in advance and almost always amount to thousands of dollars. In addition, arbitration clauses often allow the corporation to choose the location, regardless of how inconvenient or costly travel will be for the consumer.

Myth: Arbitrators are like judges; they have to follow the law and publicly state the reasons they made their decision.
Fact: Arbitrators are not bound by any laws. They do not have to follow the law and they don't have make public or even provide to the consumer any explanation for ruling the way that they did.

Most arbitration clauses require that proceedings be kept confidential, even if the case raises important public policy issues. As a result, only the corporation can track past decisions and know which arbitrators have ruled for them. In addition, arbitrators do not set or follow judicial precedent, something our judicial system requires to ensure consistency and fairness in legal proceedings.

hans

Labels: arbitration attorney lawsuit medical malpractice negligence nursing home abuse nursing home neglect nursing homes personal injury tort reform wrongful death

12/17/2008
Hans G. Poppe
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You've Been SuperPoked and Served...Facebook Used To Serve Court Papers

Sometimes lawyers have to serve important documents on people that don't want to be served. It could be a divorce suit, a doctor in a medical malpractice case, or any other number of unpleasant legal proceedings. One lawyer in Australia has found a new way to get reluctant defendants served with papers....Facebook! Here is the article.

Australia OKs Facebook for serving lien notice

By ROD McGUIRK, Associated Press Writer Rod Mcguirk, Associated Press Writer Tue Dec 16, 4:53 pm ET

CANBERRA, Australia – You've been "superpoked" — and served. A court in Australia has approved the use of Facebook, a popular social networking Web site, to notify a couple that they lost their home after defaulting on a loan.

The Australian Capital Territory Supreme Court last Friday approved lawyer Mark McCormack's application to use Facebook to serve the legally binding documents after several failed attempts to contact the couple at the house and by e-mail.

Australian courts have given permission in the past for people to be served via e-mail and text messages when it was not possible to serve them in person.

McCormack, a lawyer for the lender, MKM Capital, said that by the time he got the documents approved by the court late Tuesday for transmission, Facebook profiles for the couple had disappeared from public view.

The page was apparently either closed or secured for privacy, following publicity about the court order.

"It's somewhat novel, however we do see it as a valid method of bringing the matter to the attention of the defendant," McCormack said.

Despite the setback, McCormack said the Facebook attempt would help his client's case that all reasonable steps had been taken to serve the couple. A court is expected to settle the matter as early as next week.

Facebook has become a wildly popular online hangout, attracting more than 140 million users worldwide since it launched in 2004. Facebook friends can "poke" or "superpoke" each other — terms for giving someone a playful nudge.

In a statement, Facebook praised the ruling. "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives," it said. The company said it believed this was the first time it has been used to serve a foreclosure notice.

The documents were sent last Friday after weeks of failed attempts to contact borrowers Gordon Poyser and Carmel Corbo at their Canberra home and by e-mail.

The Associated Press found Poyser, a retired 62-year-old, on Tuesday at home at the contested address.

He declined to comment on the record, citing the couple's stress at the prospect of losing their home of seven years only a week before Christmas. But he said he had privacy restrictions imposed on his Facebook page Tuesday only because of the media attention it had attracted.

"Because (otherwise) I'd get every man and his dog having a look," Poyser told The AP at his front door.

Lawyer and computer forensic expert Seamus Byrne said he was aware of only one similar case in Australia. A Queensland state District Court judge ruled in April against documents being served by Facebook because the option of contacting a person via a post office box had not yet been exhausted.

In the latest ruling, Master David Harper insisted that the documents be attached to a private e-mail sent via Facebook that could not be seen by others visiting the pages.

McCormack said he and a colleague found the woman's Facebook page using personal details that she had given the lender including her birth date and e-mail address. The man was listed on her page as a friend. Prior to Tuesday, neither had imposed security options that deny strangers access to their pages.

McCormack said he did not bother searching for the couple through any other social networking sites.

"It's one of those occasions where you feel most at home with what you know and I myself have a Facebook account," McCormack said.

I don't see a Kentucky court, or any United States court, anytime soon recognizing the use of Facebook to serve a defendant. But in the future, who knows. Behold the power of the internet....

Hans

Labels: attorney lawsuit lawyer litigation service of process

11/17/2008
Hans G. Poppe
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Poppe Law Firm Involved in $900,000 Louisville FELA Verdict Against CSX Railroad

Sorry to be so long in posting, but we were in trial with Hal Bailey of Atlanta Georgia and Will Moody, Jr. of Virginia, both of Moody, Strople, Kloeppel & Higginbotham, Inc. A Louisville jury awarded our client, Paul Fairchild, $910,000 in a Federal Employers Liability Act (FELA) case against CSXT Railroad.

In 2003, Paul was operating a ballast regulator when his supervisor stopped a fuel truck across the tracks at the crossing Paul was approaching. While Paul tried to stop the regulator as quickly as he could, there was too much grease on the rail and Paul and his regulator slid 250 feet into the fuel truck.

The wreck caused Paul to suffer a severe neck injury that resulted in a two level neck fusion and a permanent impairment that has disabled him.

This Louisville, Kentucky jury took their charge seriously and deliberated almost 8 hours before coming to their verdict. We believe it is a verdict they should be proud of.

Hans

Labels: attorney car accident lawyer personal injury truck accident

11/17/2008
Hans G. Poppe
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Automobile and Semi-Truck Accidents Are a Serious Problem in Kentucky

So, I was talking with a non-lawyer friend of mine the other day and he was telling me how lucky we are to live in Louisville--because "we don't have that many car accidents. "
WHAT!!??
While I certainly agree we are lucky to live in Louisville, it certainly has nothing to do with the number of car wrecks. In fact, Kentucky as a whole has statistically more injuries and fatalities involving semi-trucks than other states, probably because of the convergence of I-264 (Watterson Expressway), I-65 (Martin Luther King Highway) and I-64 and I-71, all in Louisville-- this is commonly known around here as Spaghetti Junction.
If you are ever involved in an automobile accident, you should do the following:

If someone is injured, you should call for help immediately. Provide basic first aid but don't move an injured person unless you have medical training.
Make note of the time of day, any weather factors that may have contributed to the accident, the position of the cars, etc.
Courteously exchange information with the other parties involved such as names, addresses, phone numbers, driver's license numbers, insurance companies and policy numbers, if possible.
If there were witnesses to the accident, get their names and telephone numbers. If the police are called, make a note of the reporting officer's name.
Report the accident to your insurance agent or company as soon as possible, even if you were not at fault.
And, if you were injured, and the accident was not your fault, hire a lawyer.

Download our Free Report on Semi-Wrecks.
Hans

Labels: attorney car accident lawyer personal injury truck accident

11/17/2008
Hans G. Poppe
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Does Pre-Trial Publicity about the Kentucky Kingdom Case Taint the Jury?

Anyone who lives in or around Louisville, Kentucky has heard about the tragic events that caused catastrophic injuries to a young louisville girl at Kentucky Kingdom. Recently, a friend of mine asked my opinion about whether there was anything wrong with the publicity the case was receiving and could it have an impact on the fairness of the trial.

Pre-Trial publicity is governed by rules published by the Supreme Court of Kentucky that govern the conduct of all lawyers practicing in Kentucky. Specifically, pre-trial publicity is rule SCR 3.130(3.6). In short, it provides that there should be a balancing act between the public's right to have information about a case and the party's right to a fair and impartial jury.

In conducting the balancing inquiry, a lawyer should not make any statement "if the lawyer knows, or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." There are severaly key phrases contained in that statement, including "substantial likelihood" "materially" and "prejudicing." While I won't go into a dissertation about the definition of these words, each one has a specific meaning that must be applied to the statment, and must be done so from a prospective (not retrospective) view.

Also contained in the rule is a large section dealing with public statements that can always be made, even if the statements might have a substantial likelihood of materially prejudicing an adjudicative proceeding, including, but not limited to: 1) the general nature of a claim, 2) information contained in a public record, 3) that an investigation is in process, etc.; however, the exception most applicable to the Kentucky Kingdom case would be #6, "A warning of danger concerning the behavior of a person (or corporation), when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest..."

Here, the statements made by this young girl to the press, and in Washington D.C. at congressional hearings on amusement park safety have been "a warning of danger...of likelihood of subtantial harm to an individual or to the public interest."

Finally, because there hasn't been a trial date set, it would be difficult to argue there has been any likelihood of materially prejudicing the trial. Just my two cents.

Hans

Labels: attorney lawyer personal injury

11/17/2008
Hans G. Poppe
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Think You're Safe In Your Hummer? Think Again...

If you are ever involved in a car wreck or semi-truck accident you probably think you want to be in the biggest, heaviest automobile or suv; however, you may be surprised to know that one of the vehicles everyone thinks is safe, isn't. As a lawyer that represents people who were hurt or killed in car or truck wrecks, there aren't many things on which I can agree with the Insurance Institute for Highway Safety, but even I pay attention when they do their annual surveys on the safest vehicles.

According to the report released by the Insurance Institute for Highway Safety, the safest mid-size SUV was the 2009 Nissan Murano. What might surprise most is that the Hummer H3 had one of the poorest showings. The General Motors' H3 was the only vehicle in the group that did not receive the top rating for frontal crash protection and, even more disturbing, it received the lowest rating, "poor", in the rear crash test. Of important note, the H3 and the Chrysler Jeep Liberty and Dodge Nitro are all three built on the same platform.

So, just because its big doesn't mean its safe. Do your research by reading the full 5-page report here and drive safely.

Here are the Institutes "safest" vehicles:

Top Safety Pick 2008 award winners

Large cars

Audi A6

Cadillac CTS

Ford Taurus with optional electronic stability control

Mercury Sable with optional electronic stability control

Volvo S80

Midsize cars

Audi A3

Audi A4

Honda Accord 4-door models

Saab 9-3

Subaru Legacy with optional electronic stability control

Midsize convertibles

Saab 9-3

Volvo C70

Small car

Subaru Impreza with optional electronic stability control

Minivans

Honda Odyssey

Hyundai Entourage

Kia Sedona

Midsize SUVs

Hyundai Veracruz built after August 2007

Saturn VUE built after December 2007

Subaru Tribeca

Toyota Highlander

Volvo XC90

Small SUVs

Honda CR-V

Honda Element

Subaru Forester with optional electronic stability control

Large pickup

Toyota Tundra

Hans Poppe

Labels: attorney car accident lawyer personal injury truck accident

Business Litigation Attorney

1/27/2009
Hans G. Poppe
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Was Your Credit Card Information Stolen...

If you live in or around Louisville, Kentucky, you may have noticed a small blurb in the Courier-Journal about a local Jeffersonville, Indiana company called Heartland Payment Systems. It appeared on inaguration day, so I don't blame you if you missed it; however, it is a BIG STORY.... regardless of how little media attention it received.
Heartland Payment Systems, based in New Jersey, processes 100 million credit card transactions per month in its processing center in Jeffersonville, Indiana. And therein lies the problem. Heartland President Robert H.B. Baldwin Jr said the company found evidence last week that their had been an electronic "intrusion" occuring for the last several months. Baldwin indicated that both credit-card names and numbers were exposed.
ComputerWorld has a detailed article outlining how this data breach, which may be the largest in history by surpassing the TJX case, has sparked concerns in the industry over how to keep information safe and secure.
The Poppe Law Firm is local counsel in the Countrywide data breach litigation currently pending before an MDL in the Western District of Kentucky. The Poppe Law Firm is also attempting to assist individuals that have received notification that their credit or debit card information was accessed by virtue of the Heartland Payment Systems security breach. Please feel free to contact our office. 502-895-3400
hans

Labels: attorney breach of fiduciary duty business litigation class action data breach Indiana lawsuit litigation negligence personal injury settlement

12/3/2008
Hans G. Poppe
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Why Corporations and Small Businesses Shouldn't Pay Lawyers by the Hour...

I have to admit that in Louisville, I'm probably a rare breed. I handle business litigation cases on a contingency fee basis (or a hybrid hourly-contingency basis depending on what the client wants). I am a firm believer in the contingency system because it provides the most incentive for the lawyer to do the best job possible for the client without expending needless resources simply because the lawyer is paid by the hour.
I recently ran across the following article , expressing much better than I can, several reasons why corporations and small businesses should incorporate contingency fee contracts in their cases, regardless of how large they potential recovery may be.

hans

Labels: attorney breach of contract business litigation contingency fee lawyer

Ketucky Legal Malpractice Attorney

11/6/2009
Hans G. Poppe
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Legal Malpractice--How Your Laywer Can Stick it To You Again....

One major issue that arises in many legal malpractice cases is whether the client can recover damages from the lawyer in a legal malpractice case if the damages were not collectible (or questionable) in the underlying case. Here is an example: Mr. Drunk Driver crashes into Mr. Innocent. Mr. Drunk Driver doesn’t have any insurance to pay for Mr. Innocent’s injuries, nor does Mr. Drunk Driver have money or assets. Mr. Innocent finds a TV advertising lawyer that promises to get him a quick settlement and keep him out of court. When Mr. Lawyer learns that Mr. Drunk Driver doesn’t have any insurance, he doesn’t do much to pursue Mr. Innocent’s case. Unfortunately, Mr. Lawyer sits on the case too long and the statute of limitations passes. It’s now too late to file a lawsuit against Mr. Drunk Driver. Mr. Innocent decides to sue Mr. Lawyer for legal malpractice. Mr. Lawyer decides to defend by arguing that Mr. Innocent’s case is worthless because Mr. Drunk Driver was uncollectible. Meaning that if Mr. Innocent couldn’t have collected from Mr. Drunk Driver (because he is poor and uninsured), then Mr. Innocent can’t collect from Mr. Lawyer (because the value of the legal malpractice case is only as good as the underlying case). The Texas Supreme Court recently stirred the pot and weighed in on these issues in AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION, 2009 WL 3494978, 13 (Tex. 2009). The Texas Court first addresses the issue of recoverability. The specific question in the case was when collectability was to be determined. The malpracticing attorney argues that the determination of whether the damages were collectible should be made at the time the underlying judgment is entered, not at the time the suit is originally filed, as argued by the Plaintiff. The Court agrees with the malpracticing attorney that the determination of whether damages awarded in the underlying suit were actually collectible should be made at the time the judgment is entered. This was a blow to the Plaintiff as the entity from which the fees were to be recovered was in a much worse financial position at the time the judgement was entered than it was when the suit was originally filed. The Court also addresses the issue of the recoverability of attorney’s fees. The Court holds that fees paid to the defendant attorney in the underlying suit are recoverable stating, "We see little difference between damages measured by the amount the malpractice plaintiff would have, but did not, recover and collect in an underlying suit and damages measured by attorney’s fees it paid for representation in the underlying suit, if it was the defendants attorney’s negligence that proximately caused the fees. In both instances, the attorney’s negligence caused identifiable economic harm to the malpractice plaintiff. The better rule, and the rule we adopt, is that a malpractice plaintiff may recover damages for attorney’s fees paid in the underlying case to the extent the fees were proximately caused by the defendant attorney’s negligence." The Akin Court’s ruling on collectability and attorneys fees may have serious implications for Plaintiffs seeking to be made whole. Specifically, the effects of determining the collectability of a judgment at the time the judgment is entered rather than when the suit is filed are case and fact specific but could result in Plaintiffs recovering damages or being left holding the bag. Hans ps. Kentucky, and most other states, have not ruled on the issue of collectibility in the underlyhing case.

Labels: attorney lawyer legal malpractice negligence

6/21/2009
Hans G. Poppe
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Former Louisville Lawyer Has More Problems...

Anyone familiar with this blog is probably familiar with Louisville attorney Fred Radolovich (see previous posts). Radolovich resigned from the bar under terms of disbarment rather than risk being prosecuted for perjury charges arising out of misrepresentations he made to a judge about his experience handling death penalty cases (he said he had tried 4 when he hand actually tried 0).

Here is why he is relevant today. Because a large portion of my practice is representing people in claims against their former attorney (a.k.a. legal malpractice or legal negligence), I am frequently asked to review cases where a potential client believes their former lawyer mishandled a criminal matter and, as a result, the person was convicted of a crime the didn't commit. I have never taken a case involving malpractice in a criminal case and there is a good reason. Kentucky law requires that a criminal conviction be overturned before you can so the lawyer for malpractice. That's right. Basically, your lawyer could fall asleep in trial, refuse to cross exam any witnesses or present any proof. But unless you won on appeal, you could not sue the lawyer for malpractice. A very high burden indeed.

Well, it seems someone may have a good criminal malpractice claim against Fred. Here is the opening paragraph from Andrew Wolfson's article in the Courier Journal:

"Fifteen years old and charged with two murders in 1995, Michael Jennings thought he had no choice but to plead guilty in exchange for a life sentence.

His own lawyer, Fred Radolovich, indicated he could face the death penalty — or consecutive sentences of life without parole for 25 years — if he was convicted at trial, according to court records.

Radolovich, who has since been disbarred, was wrong on both counts: The U.S. Supreme Court had abolished the death penalty for such young offenders more than a dozen years earlier, and Kentucky law doesn't allow life sentences to be run consecutively.

For 14 years, Jennings fought from behind bars to overturn his conviction.

He saw his efforts rewarded Wednesday, June 17, when U.S. Magistrate Judge Dave Whalin in Louisville ruled that Radolovich gave Jennings such bad advice that his conviction should be thrown out and the state of Kentucky should try him or release him."

It's not a slam dunk, and Radolovich might not have any insurance or assets to cover a judgment, but it does go to show that not all lawyers are equal.

hans
ps be sure to check out our video explaining "What is Legal Malpractice"

Labels: attorney disbarred lawyer legal malpractice suspension from practice of law

3/26/2009
Hans G. Poppe
Comments (3)

How Lawyers Can Legally and Ethically Steal From Clients....

Well, its happened again. I was contacted by a potential client that hired a lawyer to handle a personal injury case, the lawyer malpracticed the case and, surprise surprise, the lawyer doesn't have any insurance. The client's personal injury case was a good one and the lawyer simply didn't know the time limitations on filing the suit. It's forever lost. So, in my opinion, the lawyer has stolen the value of that case from his client. And, to top it all off, the lawyer's failure to carry insurance adds insult to injury.
Why does the Kentucky Bar Association, or any state's bar association for that matter, not make legal malpractice insurance MANDATORY? At the very least, make lawyers disclose to clients that they don't have any insurance. At least that way the client can make an informed decision about whether this is the lawyer they want to hire.

Based on this article from 2008 and this article from 2006 only Oregon, has made legal malpractice insurance mandatory. About 22 other states have made lawyers disclose whether they carry insurance or not--but sometimes they only have to disclose to the Bar, not clients. Worthless.

So, what's the deal Kentucky? Are we going to let lawyers continue to represent people without being financially responsible when they malpractice, or are we going to continue to allow them to have a license to steal?

Hans

Labels: attorney breach of fiduciary duty legal malpractice negligence

12/15/2008
Hans G. Poppe
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Multiple Conflicts of Interest Before State Supreme Court...Will There Be Enough Judges Left?

As reported in the Chicago Sun Times:

BY MAURICE POSSLEY Special to the Sun-Times mauricepossley@gmail.com

Four Illinois Supreme Court justices have been asked to withdraw from hearing an appeal of a legal-malpractice case against Corboy & Demetrio, one of the nation's top personal-injury firms, because the justices have gotten political contributions from the Chicago firm's attorneys.

The case involves a hotly contested case alleging that Corboy lawyers mishandled a lawsuit brought on behalf of the family of a Georgia woman who was killed and her two daughters who were injured in a car crash in 1995.

The motion seeking the recusal of Supreme Court Chief Justice Thomas Fitzgerald and Justices Anne Burke, Charles Freeman and Robert Thomas comes just after the U.S. Supreme Court agreed to hear arguments in a West Virginia case testing whether elected judges can take part in cases involving campaign contributors.

Because there are seven justices on the Illinois court, the motion sets up the possibility that, should the justices step aside, there would be only three justices left to hear the case -- rendering an appeal meaningless. The Illinois Constitution requires four votes for any Supreme Court ruling to be official, and the constitution has no provision for appointing interim justices should a justice withdraw.

Such a dilemma would be "absurd," attorney Charles Boyle noted in his motion.

The original lawsuit alleged that Corboy lawyer G. Grant Dixon III, who is no longer with the firm, and Robert Bingle, the firm's managing partner, failed to preserve the damaged vehicle and failed to investigate whether the wreck was the result of a manufacturing defect.

The Corboy firm admitted that the car-crash suit was dismissed because the firm failed to follow a court order but denied all other allegations against the firm. A judgment of $100,000 was entered against the law firm, and all other counts of the lawsuit were denied.

In a motion filed Nov. 24, Boyle asked the Illinois Supreme Court for permission to review the lower court's rulings and asked the four justices to step aside from hearing his petition.

The motion states that some members of the Corboy firm and two of the firm's experts in the car crash case have donated $52,000 to Fitzgerald, $33,000 to Thomas and $30,000 to Freeman. It says that while Burke has received $1,500 in contributions, the firm has donated $24,000 to her husband, Ald. Edward Burke (14th).

While federal judges must disqualify themselves from any case in which they have any personal or financial interest, states generally have no specific criteria for campaign contributions.

In the West Virginia case, Justice Brent Benjamin won election after the chief executive of the Massey coal company contributed $3 million to his campaign and raised half a million more -- amounting to 60 percent of the justice's campaign funds. After the election, Benjamin twice cast the deciding vote to set aside a $50 million judgment against the coal company. (Massey Coal has its own problems and its own legal malpractice case against a kentucky law firm, see our previous blog entry)

Attorney Michael Reagan, representing the Corboy firm in the case, said the amounts in the Illinois case are "ordinary campaign contributions" that are a "fact of life in a democracy."

Maurice Possley is a Pulitzer Prize-winning journalist who recently left the Chicago Tribune. He worked for the Chicago Sun-Times from 1978 to 1984.

Labels: attorney conflict of interest lawyer legal malpractice litigation negligence professional responsibility

11/17/2008
Hans G. Poppe
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The Latest in the Fen Phen Fiasco

Well, according to the Courier Journal, William (Bill) Gallion is the first of the three fen phen lawyers to take the stand to try to defend their actions in the federal criminal action. According to the article, Mr. Gallion has justified the actions of the lawyers in taking more in fee than their contracts entitled them to because clients who may have gotten nothing in the national case, collected as much as $1.4million. "I thought that was a great result," Gallion said. All three lawyers already have been sued for breach of fiduciary duty and legal malpractice and lost a $40 million verdict.

Gallion also attempted to defend the lawyer's decision to divide the client's money without using a neutral third-party (as required by ethics rules) because, ""We wanted to use our own knowledge." He went on to explain that it would have taken too long to get a third party up to speed on the facts of each individual case.

Hogwash. I was personally involved in the settlement of the Roman Catholic Archdiocese of Louisville settlement in Louisville, Kentucky where we represented over 240 individual plaintiffs in a $25.7 million class action settlement. We hired a neutral third party, Matthew Garretson, to review and analyze each individual's damage claim. Matt reviewed the depositions (of those that had been deposed), as well as their interrogatory responses (answers to written questions asked by the Diocese's attorneys), our client notes on each individual plaintiff, and any additional written damage materal or medical records in our possession (or later supplied by our client) as well as voluntary video damage statements made by clients. Once Matt came up with his damage award for each individual plaintiff, the client could accept the award or "appeal" the award. We hired retired Kentucky Supreme Court Judge Nick King to act as the "appellate judge" to hear any challenges to Matt's initial damage award. Judge King then review all the materials and any additional materials supplied by the client, including an interview if necessary and he could confirm, increase, or decrease the award as he saw fit.

I think the entire process of damage allocation by Matt and Judge King took two months. It was honest, ethical, effect, and quick.

So what's their real excuse?

Hans

Labels: attorney breach of fiduciary duty disbarred fen phen lawyer legal malpractice professional responsibility suspension from practice of law

11/17/2008
Hans G. Poppe
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Fen Phen Judge Says He Won't Participate in Re-trial

In the continuing saga of the Fen Phen Fiasco...

As if the acquital of Melbourne Mills and the subsequent mistrial of the case against William Gallion and Shirley Cunningham wasn't weird enough. Now, Judge William Bertelsman refuses to hear the re-trial. Yesterday, Judge Bertelsman indicated that, not only will he not be the judge on the re-trial of the Fen Phen defendants, he won't hear any more criminal cases at all.
Because Judge Bertelsman is a senior judge, he has the option of limiting his case load.
While Bertelsman did not comment further on the reasons why he no longer wants to participate in judging criminal cases, one has to assume that this case (and presumably the result) is the reason.
One must also assume that the re-trial will be presided over by Federal Judge Danny Reeves.
Judge Reeves was appointed to the federal bench in 2001. Prior to being appointed to the bench, Judge Reeves was an attorney at Greenbaum Doll McDonald's Lexington, Kentucky office from 1983-2001.
Although none of the lawyers have been convicted criminal, they are still the subject of a $45 million civil judgment for breach of fiduciary duty and they have all been suspended from the practice of law in Kentucky.
Hans

Labels: attorney breach of fiduciary duty fen phen lawyer professional responsibility suspension from practice of law

11/17/2008
Hans G. Poppe
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Hans Invited to Give Legal Malpractice Seminar in Louisville in March

The Kentucky Justice Association is holding a legal malpractice seminar with some great speakers, including Edward Stopher of Boehl Stopher Graves, Lee Sitlinger of Sitlinger, McGlincy and Theiler, Gary Weiss and Allan Cobb, as well as your truly. You can download the brouchure here.
Hans Poppe

Labels: attorney lawyer legal malpractice

11/17/2008
Hans G. Poppe
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Louisville Lawyer Suspended from Practice and Criminally Charged For Allegedly Stealing

As reported today in the Courier Journal, Louisville attorney Louis Smith has been accused of stealing money from his clients. Prosecutors allege that Smith, an estate attorney, began stealing from clients, including Emily Strange, around 1999.

Although Smith pleaded "non-guilty" to the charges, his criminal lawyer Steve Romines has filed court papers indicated they may defend Smith by asserting his diagnosis of dementia.

On March 20, the Kentucky Supreme Court temporarily suspended Smith from the practice of law for his dealings with Ms. Strange's $1 million estate and stated, "In less than ten years, all of the money seems to have disappeared , and the client is on Medicaid. Even when the circuit court ordered an accounting by the Respondent, he refused to disclose the whereabouts of the assets and the purpose of their transfer. The circuit court has threatened sanctions, including incarceration on the contempt, until such disclosures are made. We have no doubt that the circuit court has quite a task in seeking to trace the assets from the Respondent."

It has been my experience that lawyers that steal money from clients don't usually have any insurance or assets. This necessarily means that it will be very difficult for any of his victims to recovery in a legal malpractice lawsuit; however, that doesn't mean his victims should sit idly by, they should hire an attorney to investigate if insurance is available and what, if any, assets are available to reimburse the clients and their estates.

hans

Labels: attorney breach of fiduciary duty lawyer legal malpractice professional responsibility suspension from practice of law

11/17/2008
Hans G. Poppe
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Law Firm Sued 22 Times Sues its Own Malpractice Carrier for Not Defending New Legal Malpractice Suit

One of Augusta's best known criminal defense firms has a problem. It seems they have been sued--23 times. Their insurance carrier has settled all of them-- but one. The one suit they refuse to settle, or even pay for the defense, was filed by Wendell A. Jenifer.

So, not only is the Fleming firm having to pay the costs of defending themselves in the Jenifer case, they have also sued their insurance carrier, Clarendon National Insurance Co,

Jenifer sued the Fleming firm, John Fleming and his nephew William Fleming in 2006. Mr. Jenifer hired the firm and the attorneys to represent him in a personal injury case against a local hotel, and he alleges his case was thrown out because the attorneys did nothing to pursue it.

Mr. Jenifer's malpractice case was scheduled for trial last month in U.S. District Court. It was put on hold to give the Fleming firm and the attorneys time to get a legal ruling about their insurance coverage during the time Mr. Jenifer claims he was neglected.

According to the Fleming firm's lawsuit, Clarendon provided its malpractice insurance until it canceled the policy in August 2002.

The firm then obtained coverage through Royal Surplus. Neither insurance company has provided any defense for the firm or attorneys in the Jenifer case. According to court documents filed in federal court, Clarendon dropped the Fleming firm and attorneys after it had to settle 22 malpractice claims in the fall of 2002. In order to obtain new insurance, John Fleming and William Fleming had to resign from the firm, although John Fleming returned a month later.

In the Jenifer case, the judge has made a very unusual evidentiary ruling. U.S. District Magistrate Judge W. Leon Barfield framed what a federal court jury will hear as follows "I have come to the conclusion ... that much of the insurance evidence proffered by the plaintiffs in this case is admissible," Judge Barfield said.

Judge Barfield ruled that all of the claims filed within the time period that Mr. Jenifer had dealings with the firm and William Fleming can be used as evidence.

Judge Barfield said it is plausible that the Fleming firm found itself in "a firestorm" in 2002. The insurance company canceled the firm's policy, and it was re-instated only when John and William Fleming resigned. John Fleming returned a month later.

It is plausible, Judge Barfield said, that the firm's attorneys realized that any claim Mr. Jenifer might file would not be covered by the insurance. The evidence about the other insurance claims is relevant because the firm admitted to wrongdoing until it came to Mr. Jenifer's case, the judge said.

In another unusual evidentiary ruling, Judge Barfield ruled the Fleming firm cannot call other attorneys as witnesses to give opinions about the merits of Mr. Jenifer's case against the hotel. That will be a decision the jury must make in determining whether there was legal malpractice, Judge Barfield said.

FYI, this is not the first time the Fleming firm has been under fire. A couple of years ago, they were accused of "client dumping."

Hans

Labels: attorney breach of fiduciary duty lawyer legal malpractice professional responsibility

11/17/2008
Hans G. Poppe
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Lawyer Fined $29k for His Client's Profanity During Deposition

Well, it doesn't rise to the level of legal malpractice, and it didn't happen in Louisville but it is very interesting. Law.com is reporting that attorney Joseph R. Ziccardi has been sanctioned $29,000 by U.S. District Judge Eduardo C. Robreno for his client's foul language during a deposition.

Every litigation attorney has, at one time or another, been in a deposition where his client said something unexpected. Most of the time its no big deal, but here Judge Robreno decided that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that Ziccardi at one point "snickered" at his client's conduct.

Unfortunately, I don't have any video of that deposition. But for a classic deposition taken Texas style click here to see two attorneys practically come to blows.

Hans Poppe

Labels: attorney lawyer legal malpractice

11/17/2008
Hans G. Poppe
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Chesley Refuses to Testify for Co-Counsel in Fen-Phen Trial

According to the Courier Journal, in a suprising turn of events, Cincinnati lawyer Stan Chesley has indicated he will not testify as an expert for his former co-counsel, William Gallion, Shirley Cunningham and Melbourne Mills in their criminal Fen-Phen trial. Those familiar with this blog know that we have been following the criminal trial as well as the legal malpractice trial. Chesley, a nationally known class-action plaintiff's attorney is the only one of the four lawyers involved in the Kentucky Fen-Phen settlement to not be indicted on criminal charges. Chesley's refusal to serve as an expert will make it difficult for Gallion, Cunningham and Mills to claim they relied on Chesley's advice in how they divided the settlement; although they have now indictated attorney Richard L. Robbins of Atlanta will now serve as their expert (Stay posted to see if Judge Bertelsman allows this since they disclosed Robbins after the deadline).
In another interesting twist, Gallion and Cunningham have asked that the judge ban the prosecution from telling the jury that they are part owners of Curlin, the 2007 Preakness winner.
Hans Poppe

Labels: attorney lawyer legal malpractice

11/17/2008
Hans G. Poppe
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Minnesota Lawyer Forced to Defend Himself In Kentucky in Legal Malpractice Claim

One question I am often asked in legal malpractice cases is "can a lawyer be sued for legal malpractice in a state where he does not live or work if he took a case there?" This question is really asking, does the state where the legal work was done, supposed to be done, have jurisdiction over a non-resident lawyer that may not be licensed in the state and may have never even visited the state.
Well, a federal court in the Western District of Kentucky has i ssued an opinion answering the question. A Minnesota lawyer was hired by an Indiana resident to investigate and pursue a wrongful death claim in Kentucky. The lawyer sent contracts and medical authorizations to the estate's representative; however, according to the complaint, the lawyer failed to do any work on the case after receiving the signed documents back from the client. Ultimately, the statute of limitaions expired and the client sued the lawyer in Kentucky.
The lawyer argued that a Kentucky court did not have jurisdiction over him because he lived in a different state. The federal court analyzed the situation and ultimately determined that the lawyer had consented to jurisdiction by his actions and that the facts of the underlying medical malpractice case had such a strong connection to Kentucky that jurisdiction was proper.

hp

Labels: attorney lawyer legal malpractice

Unfair Insurance Practices Attorney

5/21/2009
Hans G. Poppe
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$2.5 Million Dollar Kentucky Bad Faith Verdict

My friend, and fellow Kentucky bad faith trial attorney, Austin Mehr obtained a $2.5 million dollar verdict last night in a third-party bad faith claim against the Medical Protective Insurance Company. In short, Austin's client sued her doctor for causing significant injury to her inner ear. The doctor admitted he made a mistake, but his insurance company refused to settle the claim. The case was litigated and ultimately resulted in an arbitration award of $1.6 million. Austin's client then sued then doctor's insurance company, MedPro, for violating Kentucky's Unfair Claims Settlement Practices Act (aka the Bad Faith Statute) alleging, among other things, that MedPro failed to promptly settle the claim when liability became reasonably clear. After a two-week trial, a Kenton County Kentucky jury agreed and awarded Austin's client $350,000 for the mental stress caused by the delay in settlement and awarded $2.2 million in punitive damages to punish the medical malpractice insurance company for its behavior.

I have a very similar bad faith case going to trial on Tuesday in Jefferson County Kentucky against American Physicians Assurance.

Below is the "Fact Section" from one of Austin's briefs and here is the jury's verdict.

Medical Protective insured Dr. Del Burchell and his physicians' group Internal Medicine Associates of Northern Kentucky, P.S.C for medical malpractice. On July 3, 2000, Dr. Burchell attempted to clear earwax out of Aurelia Wiles' ear using an ear lavage procedure by which a syringe injects water into the ear. The syringe was not properly attached, and when Dr. Burchell pressed on the plunger, the syringe exploded into Mrs. Wiles' inner ear. Liability on the part of Dr. Burchell and his clinic was unquestionably clear. Mrs. Wiles had emergency surgery on July 6, 2000, to attempt repair of the injured ear. On August 17, 2000, Mrs. Wiles' attorney Terry Moore wrote Dr. Burchell and asked that he have his insurance carrier contact him. Moore wrote Medical Protective's adjuster Gary Duechle on September 15, 2000, to advise of the severity of Mrs. Wiles' injuries, including nausea, ringing in the ears, imbalance, sleep difficulties, and that it was taking her about two hours just to wash her hair because of the nausea and dizziness. Moore wrote again on November 28, 2000, advising Duechle that Mrs. Wiles had a second surgery and based on the poor prognosis was likely totally disabled. On January 12, 2001, after Mrs. Wiles' condition continued to worsen, Moore specifically demanded the two million dollar policy limits from Medical Protective, which had on December 11, 2000, revealed those limits to Moore. As the one-year statute of limitations approached, Moore had written to Medical Protective to discuss his willingness to extend the statute of limitations so that suit did not have to be initiated against Dr. Burchell, but on March 9, 2001, before suit was filed, Duechle wrote to Moore and instructed him to direct all future correspondence through MedPro's defense attorney Mark Arnzen.         Instead of reviewing and giving credence to the opinions of Mrs. Wiles treating physicians, who were documenting the severity and worsening of her medical condition, Medical Protective consulted a neurologist, Dr. Greg Smith, on February 2, 2001. Dr. Smith developed the opinion that Mrs. Wiles' traumatic injuries were not the result of the syringe projectile but that they were caused by a coincidental onset of Meniere's Disease around the same time in July 2000.

           Soon after, Arnzen wrote to Duechle on April 4, 2001, and stated, "With respect to the injury itself, Dr. Burchell admitted that there was no product failure and no excuse for the injury which occurred. He stated that he failed to insure that the top of the syringe was properly secured to the body of the syringe."Even though it knew its insureds were at fault, Medical Protective still made absolutely no attempt to settle the Wiles' claim. Medical Protective, likewise, never responded to Moore's offer to extend the Statute of limitation and suit was filed on May 14, 2001, against Dr. Burchell and his physicians' group, as well as against Medical Protective for violations of the Unfair Claims Settlement Practices Act. ("UCSPA")

In addition to creating a defense with Dr. Smith, surveillance was conducted on Mrs. Wiles.   In December 2001, video footage showed that because of Mrs. Wiles' condition, she had to be dropped off at her door by her next-door neighbors, who subsequently backed out of her driveway and pulled into their own (about 40 feet away). This verification of the severity of her condition garnered no offer of settlement or negotiation from Medical Protective.

In January 2002, Mrs. Wiles endured a third surgery, this time a brain surgery that lasted seven hours. Still Medical Protective made no offer of settlement. On April 8, 2002, Moore wrote to Storm reiterating his willingness to accept the policy limits on behalf of the Wiles even though there had not been any offer made or even a discussion of an offer from Medical Protective. A letter from Arnzen to Duechle on June 25, 2002, urged Duechle to contact him about the settlement demand. Soon after, more surveillance was conducted on July 27, 2002. This time the video showed approximately twenty minutes of Mrs. Wiles struggling to slowly work in her garden. She had to sit on her buttocks because of her imbalance and when she attempted to walk just a short distance, she had to hold a bag and bucket in each arm to balance herself as she battled to stay on her feet. Again, these facts still did not conjure settlement discussions from Medical Protective.

On October 7, 2002, Arnzen wrote to Duechle suggesting that Medical Protective stipulate to liability. Internal correspondence from Duechle to Robert Ignasiak of Medical Protective shows that it "always viewed the case as one of liability…" but that no offer had been extended to settle the case. Finally, after never discussing an offer of settlement with the Wiles for twenty-seven months, Medical Protective offered $500,000.00 on October 7, 2002. During this time, Medical Protective had Mrs. Wiles submit to a medical examination with Dr. Smith, who maintained that there was a simultaneous chance occurrence of Meniere's Disease and that Mrs. Wiles was magnifying her symptoms, even though Medical Protective knew that surveillance footage indicated otherwise.

In the meantime, Dr. Burchell and his physicians' group grew nervous about MedPro's claims adjusting, had hired their own counsel to urge Medical Protective to settle for the policy limits. Attorney Andre Busald wrote to Duechle on November 22, 2002, informing him that Dr. Burchell and his physicians' group were "extremely concerned about the chances of a verdict being rendered against them in excess of the $2,000,000 policy limits – especially where liability is not an issue."Busald followed up again on December 2, 2002, and chided Medical Protective for refusing to attempt to settle the case before trial for the policy limits. Throughout the years of correspondence, there was never a question as to liability.

Finally, after agreeing to a high-low arbitration agreement, the parties put the claim before an arbitration panel in April 2003, and the panel awarded $1,650,000 on May 15, 2003. This settlement process was not without detriment to the Wiles, who had incurred substantial medical bills, legal bills, and litigation expenses while suffering from a sizeable loss of income and emotional suffering during the period of time the claim was active.

Hans

Labels: arbitration attorney bad faith insurance litigation unfair insurance practice