Injured Passengers of Cruise Lines Might be Without Compensation

The recent Costa Concordia shipwreck has brought to light many of the things cruise lines do to avoid compensating passengers for their injuries.

Why We Haven't Been Blogging

Where has Hans been and why isn't he blogging?

U.S. Government Claims Immunity in Tort Claim

Government claims immunity in a tort claim where an FBI agent wrecked a rare Ferrari.

Hulk Hogan Lawsuit Dismissed by Florida Judge

Hulk Hogan's lawsuit against Wells Fargo and ex-wife, Linda, was dismissed by a Florida judge.

Why Did This Huge Law Firm Fork Over $25 Million to the Franklin Mint.....?

Mannatt, Phelps & Phillips agrees to pay the former owners of the Franklin Mint $25 million dollars to settle a malicious prosecution case.

The Night Before Christmas (As Written by a Lawyer)

THE NIGHT BEFORE CHRISTMAS in Legalese
(Author unknown)

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter "the House") a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter "Claus") would arrive at sometime thereafter. The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as ("I"), being the joint-owner in fee simple of the House with the party of the second part (hereinafter "Mamma"), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter "the Vehicle") being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter "the Deer"). (Upon information and belief, it is further asserted that an additional co- conspirator named "Rudolph" may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute "gifts" to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as "lookouts." Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: "Merry Christmas to all and to all a good night!" Or words to that effect.

Kentucky Nursing Homes....Still Having Problems

The Kentucky Office of the Inspector General conducted an inspection and the results are poor.

Kentucky Governor Orders Nursing Home Reform

It's about time someone did something to improve the quality of care in Kentucky nursing homes.  I handle nursing home neglect and abuse cases and am constantly frustrated by the complete disconnect between the state agencies and their inability to effect real change in a facility.

Today's Courier Journal indicated Gov. Beshear has finally done something that may offer some hope for improvement; however, we really need more drastic measures such as those offered by Attorney General Jack Conway.

Here is the article:

FRANKFORT, Ky. — Gov. Steve Beshear directed his administration Friday to immediately implement nearly two-dozen reforms aimed at combating nursing home abuse and neglect.

Beshear ordered the Cabinet for Health and Family Services to conduct the review after the Lexington Herald-Leader examined 107 citations issued by the agency over a three-year period in instances where a resident's life or safety has been endangered.

The newspaper found that only seven of the 107 cases of nursing home deaths or abuse were prosecuted as crimes and that police and coroners are rarely notified of nursing home deaths or serious injuries.

“This review will be an essential document to guide the many groups that have an interest in maintaining safe nursing homes, and to ensure that proper procedures and accountability are maintained when investigations are required for suspected cases of neglect or abuse,” Beshear said in a statement.

The citations reviewed included 18 deaths, 30 hospitalizations, five broken bones and two amputations that resulted from violations of state regulations, the newspaper reported. Thirteen residents were injured because of lapses by staff members, according to the citations.

Beshear asked cabinet Secretary Janie Miller to review state agencies' coordination with local prosecutors and law enforcement to handle the reports, the newspaper reported.

Representatives from the industry, law enforcement and victim advocates were involved in the review.

Miller said the review found, for example, that law enforcement officials sometimes weren't certain who to contact at the cabinet regarding abuse and neglect cases.

She said one of the recommendations to be implemented is the creation of regional Adult Protective Services teams, which will have more clear guidelines in working with law enforcement.

“That was identified as a significant improvement from the voices of law enforcement,” she said in an interview. “They get better at it, and we get better at communicating with them if we have just one or two people involved, rather than 10.”
Bernie Vonderheide, founder of Kentuckians for Nursing Home Reform, complimented Beshear and his administration for beginning to address the issue.

“We think that it's about time the governor of the commonwealth start making elder care a top priority,” he said.

Vonderheide, who said he had not reviewed the report, said he is glad to see a recommendation to revitalize an Elder Abuse Committee that is inactive.

Miller acknowledged the committee rarely meets and has done little to monitor nursing home abuse investigations, which it is charged with doing under state statute.

She said she doesn't know why the committee has been inactive since before she became cabinet secretary.

“This will be an important place where a lot of stakeholders can be involved in how those recommendations are implemented,” she said.

Miller said the review is the beginning of the process of reforming the way nursing home abuse and neglect cases are handled.

Attorney General Jack Conway, who participated in the process, recommended stiffer penalties for nursing home abuse and neglect and for failure to report abuse and neglect.

“We appreciate Gov. Beshear leading efforts to ensure the Cabinet for Health and Family Services is communicating and coordinating with other state agencies in order to more efficiently and effectively investigate elder abuse and neglect cases,” Conway said in a statement.

Although the state sends reports of the most serious nursing home regulatory violations to the attorney general's office, that office can prosecute only with the permission of local prosecutors.

And local prosecutors say they seldom hear about the cases.

Miller said the final report did not include Conway's recommendations because the legislature would have to amend state law. The report, she said, made recommendations that the cabinet could implement immediately.

“We're assuming that continued work will happen,” she said. “I don't know where that will take us at this point.

Tim Veno, president of the Kentucky Association of Homes and Services for the Aging, said in a statement that, “While instances of abuse and neglect in Kentucky's Long Term Care facilities are not the norm, even one instance of abuse is one too many.”

Reporter Stephenie Steitzer can be reached at (502) 875-5136.

Britney Spears' Bodyguard Files Sexual Harassment Suit Against Her

Britney Spears' bodyguard filed a sexual harassment and child abuse lawsuit against her in Los Angeles County Superior Court.

WHAS 11 News Interviews Hans Poppe About The Karen Sypher Extortion of Rick Pitino Trial.

Recently, WHAS 11 News sat down with Louisville, Kentucky attorney Hans Poppe to learn about the defense motion for a change of venue and motion to strike the jury panel. Hans explains why the federal judge is likely to keep the case here in Louisville.

California Judge in Toyotoa Case Picks Heavy Weight Plaintiffs Lawyers To Steer Litigation.

U.S. District Judge James Selna appointed four attorneys to be lead counsel for two committees that deal primarily with the biggest issues facing Toyota — wrongful death claims, and claims filed by those who believe their cars have lost value because the Japanese automaker has recalled about 8 million vehicles.

Typically, in class actions like this one, multiple heavy hitter lawyers from different firms will file lawsuits in in different jurisdictions to jockey for position as lead class counsel, or as in cases this large, to be appointed to the plaintiffs' steering committee.  This is the group of attorneys that make decisions about how the litigation will proceed and will act as a liason btween the court and the hundreds of other lawyers that have filed these suits.

The group of lawyers lobbying for lead spots was much larger than in most class actions, and the resulting steering committee is much larger as well.  Accordgin to law.com, "Nearly 70 plaintiffs' attorneys spent Thursday in Selna's Santa Ana, Calif., courtroom attempting to convince him that there should be more members on the committees in charge of the litigation. Each argued for a leadership role in the MDL."

Judge Selna has selected several of the nation's most prominent class action lawyers to head up the litigation, including Steve Berman of Seattle who had taken on big tobacco and major securities class actions; Elizabeth Cabraser of San Francisco who has worked on lawsuits against the tobacco industry and the makers of silicone gel breast implants; Lewis "Mike" S. Eidson, a partner at Colson Hicks Eidson in Coral Gables, Fla.; Mark Lanier of The Lanier Law Firm in Houston; Richard D. McCune, a partner at McCuneWright in Redlands, Calif.; W. Daniel "Dee" Miles, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.; Brian Panish, a partner at Panish, Shea & Boyle in Los Angeles; Hunter Shkolnik, a partner at Rheingold, Valet, Rheingold, Shkolnik & McCartney in New York; and Donald H. Slavik, a partner at Milwaukee's Habush Habush & Rottier.

The will be a heavyweight battle on all fronts and it will be interesting legal drama for sure.

hp

PETA Drops Plan To Use Tiger On Controversial Billboard

Recently, I posted about sponsors dropping Tiger Woods and whether sponsors may sue him for breach of contract.  Recently, PETA announced it planned to put up a billboard using Tiger's and encouraging peope to spay or neuter their pets.  According to the Associated Press, PETA has nixed the plan after talking to their lawyers.  The story is below

hans

PETA won't use Woods image after talk with lawyer

PETA previously announced it would erect a billboard in Windermere — near Woods' home — with his picture and the words: "Too much sex can be a bad thing ... Always spay or neuter!"

The group, which is known for edgy campaigns, says it decided to put the Woods billboard on hold after talking with the golfer's attorneys.

PETA wouldn't say whether Woods' attorneys threatened to sue.

Instead of Woods, the ad will feature South Carolina Governor Mark Sanford, whose widely known dalliances have also made frequent headlines.

We Blow The Whistle On Unsafe Kentucky Trucking Companies.....

WTVQ based out of Lexington, KY reported on August 31^st that currently Kentucky ranks 11^th in the nation in trucking company safety violations per 100,000 residents. This could explain why so many trucking accidents upon further investigation are labeled as exactly that, accidents where no particular person was at fault. A semi-truck accident due to a blown tire or overturning on the road are not only incredibly dangerous but in most cases, entirely avoidable.

 

The American Association for Justice created a violations database which compiles a listing of motor carriers operating with federal safety violations and organizes them by state. The Association also reports that as of April 2009, there were 28,274 trucking companies, representing more than 200,000 trucks, operating on U.S. roads with safety violations. Of those, hundreds are listed in the state of Kentucky alone, including over 100 companies based in Louisville.

 

What's more is that in an article published by the Association last month, they found that trucks make up less than 4% of all passenger vehicles on U. S. roads but are involved in 12% of all motor vehicle fatalities. Violations include defective brakes, bald tires and loads that exceed weight limits. Blend these dangers with the fact that most truck drivers are only getting 4-6 hours of sleep at a time and you've got a deadly combination on America's highways.

 

Although Kentucky may not fall in the top five states with the highest violation rates (West Virginia, North Dakota, Nebraska, Vermont and Iowa) it doesn't excuse the 104 fatalities the state incurred in 2007 that involved large trucks. Coming in at 11^th, Kentucky reports 22 companies in violation of safety requirements per 100,000 people which is well over the U.S. average of 15. Neighboring states Indiana and West Virginia also come in above average with Indiana reporting 19 companies and West Virginia topping the list with 58. Ohio, Tennessee, Illinois, Virginia and Missouri all fall below average with numbers ranging from 3 to13.

 

To learn more about semi-truck accidents download a free copy of What the Insiders Don't Want You to Know About Semi-Truck Accidents or research accident attorneys.

Hans

Court Upholds $21.6 Million Bad Faith Verdict

In a short, but very sweet, 2 page opinion, the Fifth Circuit Court of Appeals upheld a $21 million dollar verdict against United Fire and Casualty for its claims hanling following Hurricane Katrina.  A portion of the verdict was for bad faith in the handling of the claim.

The Plainitff was Robert Fresh Markets, a Louisiana grocer whose business had been destroyed during the storm.  The Plaintiff's first witness was an insurance adjustor who initially reported to United Fire & Casualty that storm damage to the roofs of Robért's grocery stores allowed in rain and wind, destroying merchandise and forcing stores to close for repairs. Franco said the adjustor testified that United Fire & Casualty pressured him to change his report in a way that favored the company and then terminated him after he did.

    Following the recent flooding in Louisville, Kentucky I suspect many insurers will wrongfully deny policy holders claims here as well. 

If they do, claimants may be able to hire a Kentucky Bad Faith Lawyer and use Kentucky's bad faith laws (Unfair Claims Settlement Practices Act) to recover damages from their insurer for wrongful claims handling.

Hans

The Truth About TV Advertising Lawyers....

Recently, I ran across a very interesting article about two Tennessee lawyers that are feuding.  The issue is whether the TV advertising lawyer has the right to call himself a "trial lawyer" since everyone knows he doesn't try cases in the courtroom.  We have the same issue here in Louisville, although there isn't any feud in the newspaper to speak of.  Anyone that watches an hour of daytime television knows exactly what I'm talking about.  You can't go 5 minutes without an ad for a lawyer (or even worse the ASK GARY chiropractor).  Some of these lawyers aren't even from Kentucky, they live and work in Florida.   They all advertise they can handle your car wreck case and get you a big check; however, those of us that practice in Louisville know that isn't necessarily true.  You see, insurance companies know which lawyers try cases and which lawyers merely try to get quick checks.  Who do you think they take more seriously?  The simple fact of the matter is, all other things being equal, lawyers that know how to try cases will get the best results.  Law firms that have 5,000 cases and a war room full of paralegals working on them will likely not get the same results.  Harsh?  You bet.  Reality?  You bet.
My suggestion, if you are thinking about hiring a tv lawyer, ask them when was the last time they tried a case.  When was the last time the were in a courtroom arguing for their client.  Ask them if they are going to farm you case out to another law firm if it doesn't settle pre-suit.  Then make a decision as to whether this lawyer/law firm is going to get you the results they advertise on tv. 
hp

Revealed: Top Ten Worst Winter Driving Mistakes...

1. 1. Driving too fast for conditions.  Regardless of whether you are in a four-wheel or two-wheel drive car, ice is ice and 4 wheels slide just as easy as 2.
2. 2.  Following other vehicles too closely.
3. 3. Overcorrecting on ice.  Learn how to control a skid. If you're traveling in a straight line, stay calm, take your foot off the gas and brake gently. Turn the steering wheel in the direction you want to go. If you slip on a corner, smoothly accelerate to transfer the weight to the rear wheels, which allows you to steer into the direction of the skid and regain control.
4. 4. Driving while tired.
5. 5. Driving with poor visibility.
6. 6. Driving on back roads.  When possible, stick to roads that are regularly treated.
7. 7. Not getting the car ready for winter.  Be sure to have tires properly inflated and some kitty litter or gravel for traction in case you get stuck in the snow.
8. 8. Failure to carry emergency gear. warm clothing like coats, hats, gloves and socks; flares; chains; matches in a waterproof container; long-lasting food like nuts, jerky, dried fruit or granola bars; water; kitty litter or sand for traction on slippery surfaces; jumper cables; a shovel; a cellphone; a first-aid kit; a flashlight; and a spare tire
9. 9. Leaving the car if you're stranded.  If the car is stalled and there's no help in sight, stay with the vehicle (unless it's in the road). It'll be the warmest, safest place to wait until help arrives. Run the engine 10 minutes each hour for heat, and clear the exhaust pipe of snow, ice or mud. Place flares about 50 feet in front of and behind the car, turn on hazard lights and, if it's not snowing, raise the hood to indicate you need help.
10. 10. Failing to check weather conditions before you leave.  If you must travel in poor weather conditions, be sure to tell a friend or family member where you are going, what route you intend to take, and when you plan to arrive.  That way, if something happens and you don't arrive on time, they'll know what route to check.

Hope these winter drving tips keep you safe and sound this season.

Hans

Infamous Local Lawyer Resigns

You may have recently read about retiring Louisville lawyer Fred Radolovich who has been indicted on charges of perjury (lying under oath). Mr. Radolovich is no stranger to ethical and malpractice charges. In April 2006, Radolovich was sanctioned by a federal appeals court for filing a frivolous appeal. The 6th Circuit Court of Appeals said he filed an “incoherent brief” that contained “patent legal and factual inaccuracy.” He was ordered to pay $9,500 in sanctions. He has now been found in contempt for failing to pay those sanctions. In early November 2006, in a different matter, five judges on the 6th Circuit said Radolovich did such a poor job investigating the background of his client, IN A DEATH PENALTY CASE, that he never even discovered his own client’s real name. Radolovich’s perjury was also charged with perjury for allegedly lying to the court in a hearing by saying he had handled six death penalty cases, four as a prosecutor in New York. Radolovich’s former supervisor, from the New York County District Attorney’s office, swore in an affidavit that Radolovich never handled a death penalty case while a prosecutor. The supervisor also said that Radolovich falsely claimed to have headed a special “organized crime unit” while at the New York DA’s office. Additionally, the Courier Journal showed how Radolovich falsely claimed that he was a licensed barrister in England and was going to the World Court in the Netherlands to prosecute a Serbian war criminal. Last, but not least, Radolovich was sued by a Louisville surgeon, Johnathan Guarnaschelli, M.D., for filing a frivolous lawsuit. It seems that Radolovich filed suit against Guarnaschelli for medical negligence without any medical proof that Guarnaschelli had done anything wrong. For over a year, Guarnaschelli’s lawyer requested Radolovich drop the suit because of a lack of evidence. Ultimately, Guarnaschelli’s lawyer requested the court dismiss the case for lack of evidence. The court agreed to do so. Dr. Guarnaschelli sued Radolovich for wrongful use of civil proceedings. The jury agreed with Guarnaschelli and awarded him $12,000 in compensatory damages and $60,000 in punitive damages.

Former Kentucky doctor sued over 100 times-and is still practicing

A former Kentucky doctor is facing more than 100 lawsuits arising out of an 8-month stint at a West Virginia hospital. According to the December 1, 2006 Lexington-Herald Leader, the former Kentucky doctor testified in a West Virginia courtroom on Friday. Associated Press writer Lawrence Messina wrote King testified “he has no fixed address, has not worked since early November and lost his tax records when his accountant's office burned down.” Messina also recounted “Christopher Wallace Martin, the osteopath previously known as John A. King, also told Putnam County Circuit Judge Ed Eagloski that he has set up more than a dozen corporations, trusts and other legal entities since 1999. He then assigned them such assets as his Volvo autos and the $400,000 house he bought while at Putnam General. These various entities include a trust and a limited liability company in Costa Rica, a tax-exempt charity, and trusts named Bonemaker, Bonelover and Bonecrusher. He testified that most now have assets worth less than $10,000.” Another article written on December1, by Associated Press writer Jay Reeves, reported King was also having problems in Alabama. He was fined $2,500 in Alabama “after medical officials determined he committed fraud to obtain a license…” Reeves also reported “King failed to reveal on his application that he was under investigation by medical officials in New York and Michigan, the board found, although he did report problems in West Virginia and Texas. Records show the Medical Licensure Commission of Alabama asked the board to revoke King's license, but members let him continue practicing.” He was fired the following week for allegedly overdosing a patient. King’s Kentucky license expired earlier this year. Contact Us Name:

Kentucky's Senior Judge Program sparks many objections

Today's Courier Journal featured any interesting article by Andrew Wolfson about Kentucky's Senior Judge Program. The article focuses on the lack of a screening process like other states. The Senior Judge program allows former judges to work part time to help with the Kentucky court's growing caseload. The article reports that the program is open to all retired or defeated judges whose age and years of government employment (regardless of whether it was judicial employment) adds up to 75. The Senior Judge program does seem to be a good financial deal for Kentucky (the whole program only costs $550,000 a year, compared to the $300,000 cost of creating a new judgeship). That being said, the Wolfson points out that the lack of screening allows judges who were removed from the bench by the voters to remain judges. This seems contrary to the voter's intent. Wolfson uses as an example Judge Paula Fitzgerald who lost her re-election bid and routinely had the lowest ratings of all Jefferson County judges. I'm sure that a lot of lawyers who practiced in her court wish this was not the case. For the complete article, go here:

Jury hits State Farm with $2.5 million in punitive damages for denying Katrina claim

On Thursday,a federal judge in Gulfport, Mississippi made a suprising move following closing arguements in one of the first cases to go to trial against an insurer for refusing to pay for Katrina damage. U.S. District Judge L.T. Senter Jr. took a portion of the case away from the jury and entered a judgment against State Farm. Judge Scenter ruled Thursday morning that State Farm is liable for $223,292 in damage Hurricane Katrina caused to State Farm policyholders Norman and Genevieve Boussards' home. Senter left it to the jury to decide whether to award punitive damages. And they did, to the tune of $2.5 million dollars. It is certain that this result, especially Judge Scenter's ruling, will send shock waves through the insurance community about the hundreds of remaining lawsuits. Judge Scenter's ruling and the jury's award of punitve damages should be a lesson to insurance companies everywhere. When policyholders suffer a loss, pay their claim. Do not look for ambiguities in the policy in an attempt to deny claims. Insurance companies should do the right thing. They have collected premiums, often times for years. When it comes to pay, they should do so without forcing their own policyholders to file lawsuits. Insurance companies are constantly telling the public that their are TOO many lawsuits. This case makes it obvious that insurance companies are part of the problem. If they want to put lawyers out of business, all they have to do is pay valid claims. Then their wont' be any reason to file a lawsuit at all. Sounds simple, huh. Here is a link to the story: http://www.cnn.com/2007/LAW/01/11/katrina.insurance.ap/index.html?eref=rss_us

Kentucky federal judge says local plaintiffs can proceed with suit against the Vatican

Last week, Judge Heyburn ruled that a federal lawsuit filed against the Vatican can proceed. While Judge Heyburn dismissed a portion of the claims, he allowed several of them to proceed. He also seems to indicate that just becuase the case would not be dismissed right now, he promises to revisit the issue at a later date should the evidence warrant it. Many legal experts doubt the case will survive--that being said, I doubt many of them ever thought it would get this far. The lawsuit was brought by William F. McMurry, the same lawyer who brought the local lawsuits against the Archdiocese of Louisville. I worked with Bill on these case from day one. I can tell you without reservation that he is a brilliant strategist and will work tirelessly. Neither the Vatican or the legal scholars can afford to underestimate him. hp

Quotes about the recent State Farm bad faith verdict

WHAT THEY'RE SAYING The policyholder won the first verdict Thursday in a Hurricane Katrina insurance case involving a home that was destroyed in the surge area. A jury awarded Biloxians Norman and Genevieve Broussard $2.5 million in punitive damages in their case against State Farm Fire and Casualty Co. Reactions to the decision: "Obviously, our hearts go out to the Broussards and everyone on the Coast who suffered a loss. But we were obviously surprised and disappointed by this ruling." - State Farm spokesman Fraser Engerman, who flew in from Bloomington, Ill., headquarters for the trial that began Monday. "We are very pleased with the verdict. Obviously, we have other trials coming up and we don't want to do anything to jeopardize those cases." - Broussard co-counsel Jack Denton, explaining why he would not elaborate. "It's a great day for South Mississippi." - policyholder Norman Broussard "What I hope we can finally do is get this thing in a position where they just agree to pay the money and pay it now. They're of course going to say, well if it's going to take people two to 10 years to get their money, we'll pay a lesser percentage now. They're going to use people's money and time against them. Hopefully we can reach something." - Attorney General Jim Hood, who is trying to negotiate a settlement with State Farm for Coast policyholders. "State Farm I suspect just assumed - and that's the operative word - that it was the hurricane surge, known as the 'efficient proximate cause' and therefore that would override the windstorm and would knock out 60 percent of the damages to the home. I am pleasantly surprised that the homeowners prevailed. I have not seen the decision but have read enough in trade journals and newspapers that I saw this coming. "The insurance companies owe a duty to the policy owner to be proactive and look for coverage, a way to pay the claim. In the real world, they kind of zero in on the exclusions and they adjust losses by way of exclusions rather than the insurance agreement, which says what they cover." - Clinton Miller of San Jose, Calif., author of "How Insurance Companies Settle Cases" and consultant to both insurers and policyholders on issues of bad faith. "Our hope is that State Farm will have a change of heart and go back to square one like they should and start readjusting the claims following the rule of law that Judge Senter has made." - Chip Merlin, lawyer for homeowners suing State Farm "I am pleased to see another policyholder find a resolution to their disputed claim, and am hopeful that this decision may help speed other resolutions to take place without the necessity of lengthy litigation and courtroom visits." - Mississippi Insurance Commissioner George Dale,who ordered insurance companies to adjust claims according to very similar standards the judge outlined in Wednesday's ruling "This is a loss for property owners along the coast of Mississippi ultimately. If it stands, this decision could well have negative repercussions obviously for the cost of insurance, but also the availability." - Robert Hartwig of the industry-sponsored Insurance Information Institute "That ripple effect is going to turn into a tsunami down here. I've very interested in repairs and that everybody gets back on their feet." - Contractor Phil Coburn, who, after hearing a State Farm expert testify that the wind wasn't strong enough to take down the Broussards' brick veneer, said the same thing happened to his neighbor behind Edgewater Mall, where there was no tidal surge. "I'm absolutely delighted. I think it will also cause a rapid settlement on a lot of the outstanding policy disputes. I think it is nothing but good news for the entire Gulf Coast." - Dr. Wesley McFarland of Bay St. Louis, who lives in a FEMA trailer while awaiting his day in court with State Farm The Broussards won the first verdict Thursday in a Katrina insurance case involving a home that was destroyed in the surge area. Reactions to the decision: "What I hope we can finally do is get this thing in a position where they just agree to pay the money and pay it now. They're of course going to say, well if it's going to take people two to 10 years to get their money, we'll pay a lesser percentage now. They're going to use people's money and time against them. Hopefully we can reach something." - Attorney General Jim Hood, who is trying to negotiate a settlement with State Farm for Coast policyholders. "I am pleased to see another policyholder find a resolution to their disputed claim, and am hopeful that this decision may help speed other resolutions to take place without the necessity of lengthy litigation and courtroom visits." - Mississippi Insurance Commissioner George Dale,who ordered insurance companies to adjust claims according to very similar standards the judge outlined in his ruling. "This is a loss for property owners along the coast of Mississippi ultimately. If it stands, this decision could well have negative repercussions obviously for the cost of insurance, but also the availability." - Robert Hartwig of the industry-sponsored Insurance Information Institute

Whistelblower case against MSD started Tuesday.

A fellow attorney, and friend of mine, David Friedman started a federal whistleblower trial yesterday. You may remember David as the local lawyer who argued (and won) a United States Supreme Court case in 2006. In the whistleblower case, David alleges two former employees were terminated after complaining that a council member, his aid, and an MSD board member were using their influence to cut corners on a sewer project and to have excess dirt from the project delivered to political supporters. Based on the story, David has his work cut out for him. But he had his work cut out for him when he argued at the US Supreme Court, too. David doesn't shy away from un-popular cases or challenges. Here is the complete story: Ex-MSD workers' suit goes to trial Plaintiffs link firings to whistle-blowing By Joseph Gerth jgerth@courier-journal.com The Courier-Journal Two Metropolitan Sewer District employees were fired after they complained about "three politicians" meddling in a project, their lawyer told a federal jury in Louisville yesterday. But a lawyer for the agency said one of the employees was first disciplined because of her foul mouth and then laid off because she did little work. The other employee was let go because the project he was working on ended, the agency lawyer said. A U.S. District Court jury of seven women and three men is expected to hear evidence for the rest of the week in the trial of a lawsuit filed by former MSD environmentalist Sarah Lynn Cunningham and former project inspector Ron Barber. Cunningham and Barber say they were fired after they complained that Metro Councilman Bob Henderson; his legislative aide, Larry Mattingly; and former MSD board member Bill Gray used influence to cut corners on a sewer project and to have excess dirt from the project delivered to political supporters. Among other things, Barber contends that an MSD contractor delivered fill dirt to Mattingly's property in the Valley Village area even though, he says, Mattingly didn't go through the required permitting procedures. Henderson and Mattingly have denied any wrongdoing. Gray died in November. The case has gone on for about two years in both federal court and before the Louisville Metro Ethics Commission, where Cunningham has also filed a complaint. The commission has not acted on it. Yesterday's opening statements were peppered with salty words and conflicting accounts of what happened between April 2004, when Cunningham learned of alleged problems on a project to install sewer lines in the Valley Village/Mill Creek area of Valley Station, and December 2004, when she and Barber were laid off. David Friedman, a lawyer for the plaintiffs, told the jury that the case is a simple one: that soon after Cunningham raised the allegations privately with MSD Director Bud Schardein, he began retaliating against her. And seven months after Cunningham filed a complaint with Attorney General Greg Stumbo, both she and Barber were let go. Friedman said Barber was pressured to cut corners and overlook things he knew were wrong. "Ron will tell you the problem, the pressure from the politicians, was worse than anything he had seen in 12 years as an MSD inspector," Friedman told the jury. He also said Cunningham used the vulgar words they would hear throughout the trial in an effort to impress upon Schardein the importance of the allegations after he had ignored warnings. "She used the 'F word,' " Friedman said. "She wanted to get Bud's attention." Friedman also said Cunningham had consistently received good salary reviews and in fact received a favorable review just two months before Schardein stripped her of most of her responsibilities. Larry Zielke, a lawyer for MSD, argued that that was just one of Cunningham's problems. He contends that she used "cunning" to leave out key information in her letter to Stumbo and she "connived" to get fired from a job she really didn't want. "Cussing. Cunning. Conniving," Zielke said. "The three C's that kind of fit Cunningham to a T." He said Cunningham had a history of not being able to get along with others on the job and noted that she once called a developer a "fascist pig." Zielke also said she was removed from a project that turned dried sewage into fertilizer because "nobody could work with her." U.S. District Judge Thomas Russell said the trial could last through early next week. Reporter Joseph Gerth can be reached at (502) 582-4702

Comair Pilots broke cockpit rules and Controller changes statement.

ABC news reported tonight that the voice cockpit recorder revealed that both pilots broke the "sterile cockpit" rule. The rule requires that pilots not engage in any non-essential communications during the crucial parts of the flight, including takeoff. The pilots can be heard discussing families, their schedules and another pilot who received a promotion. They can also be heard discussing how strange it was there were no lights on the runway. The ABC news report discussed that the lone air traffic controller has changed his original statement. According to the report, the controller first said he watched the plane taxi to the correct runway. He has now retracted that statement and said he did not see the plane taxi to the runway. The story also reports that the controller was communicating with three planes at once. Here is the complete story: Wednesday, January 17, 2007 Comair says pilots broke cockpit rules By James R. Carroll jcarroll@courier-journal.com The Courier-Journal MULTIMEDIA ATC Communications audio (MP3) / Media/tower transcript (PDF) ATC Phone Call to Fire and Rescue audio (MP3)* / Transcript (PDF) * conversation begins 6 minutes, 30 seconds into tape. WASHINGTON – The flight crew of the Comair jet that crashed Aug. 27 broke federal rules barring pilots from talking about matters unrelated to the flight during moments leading to takeoff, the airline said Wednesday. The transcript of the cockpit conversation between Capt. Jeffrey Clay and First Officer James Polehinke showed that as the plane left the gate at the Lexington airport, the two men were talking about their families and schedules. Four minutes before the crash, as Flight 5191 was taxiing, the crew was discussing another pilot’s new job. The aircraft was cleared to taxi onto the correct runway, but ended up on the airport’s shorter runway, which was not long enough for the jet’s takeoff. Moments later, the plane tried to take off and crashed in trees off the end of the runway. Forty nine people aboard died, with Polehinke as the lone survivor. Federal regulations prohibit flight crews from, among other things, "engaging in nonessential conversations within the cockpit" during critical phases of flight, which include "all ground operations involving taxi, takeoff and landing." "The transcript does make it clear the crew did not follow Comair’s sterile cockpit policy," said airline spokeswoman Kate Marx. "Our policy does comply with FAA regulations." But, she said, "while pilots did not follow the sterile cockpit policy, it is premature to make conclusions regarding the role it may have played in the accident." "Comair has and will continue to emphasize the importance of the sterile cockpit both in our training program and in communications to our flight crews," Marx said. "Comair is committed to understanding all the safety issues surrounding this accident and we will take whatever steps necessary to ensure safe operations for our customers and our employees." Chicago aviation lawyer David Rapoport said the sterile cockpit rule is intended to keep the flight crew focused on operating the plane. "Non-pertinent discussions - B.S.-ing in plain language - is distracting and has the potential for distraction," he said. "This crash may be a very good example why its so important that the rule get enforced better." The transcript is among the investigative files on the Aug. 27 jet crash in Lexington that the National Transportation Safety Board released Wednesday. The early-morning accident still is under investigation by the NTSB. Moments before the crash as the plane ran down the wrong runway, Polehinke commented that it was “weird” the runway lacked lights, the transcript says. “Dat is weird with no lights,” copilot James Polehinke said at 6:06:16 a.m., according to the transcript. "Yeah," the pilot, Jeffrey Clay, replied at 6:06:18 a.m.“Whoa,” Clay said at 6:06:31 a.m.The sound of impact is less than two seconds later. The last sound recorded is from Clay, which the transcript says is an unintelligible exclamation at 6:06:35 a.m. The air traffic controller at Blue Grass Airport directed them to taxi to Runway 22, which is the runway designed for such a large plane. Polehinke acknowledges the plane will steer to Runway 22. The lone controller in the Blue Grass tower was handling two other flights while directing Comair Flight 5191, according to the transcript. At the same time that he cleared the Comair jet to taxi to Runway 22, he was directing an American Eagle flight for take off and talking to a SkyWest plane that was leaving, the transcript says. Another document shows the air traffic controller wrote after the crash that he saw the plane taxi to the correct runway, but later he changed that to say he had not been watching. "After the review of my original personnel statement, I did not watch Com191 take Ry. (Runway) 22," controller Christopher Damron wrote in a statement that is part of the accident investigation file. "I saw Com191’s position on Twy (Taxiway) A, heading for Rwy 22. I then cleared Com191 for takeoff. I saw Com191’s lights turning toward Rwy 22. I turned around to do the traffic count, heard a crash and saw a fireball west of the airport," he wrote. The documents do not explain why the controller changed his statement. Investigators have determined that the jet took off from the airport’s shorter, 3,500-foot runway, which is not designed to handle a plane of that size and weight. The jet was supposed to use the 7,000-foot runway. A week before the crash, the airport did some paving and changed the taxiway to the longer runway. The documents released Wednesday do not indicate whether federal investigators interviewed Polehinke, although summaries of other interviews are included. Neither agency plans to comment on the documents and the tape. The accident raised issues about proper airport signage and whether the control tower was adequately staffed. In November, an FAA review of airport signs and markings found that Blue Grass complied with federal standards. But the FAA admitted shortly after the crash that it violated its own policy by having only one controller instead of two on the midnight shift in Lexington. Nearly five months before the crash, an air traffic controller told Kentucky’s senators that the airport’s midnight shift had two in the tower "only when convenient to management." "This is the FAA playing a scary game of politics and using safety as the trump card," Faron Collins, then the vice president of the National Air Traffic Controllers Association in Lexington, wrote lawmakers on April 4, 2006.The Lexington accident also brought new congressional and media attention to controller staffing nationwide. Nearly 1,100 fewer air traffic controllers are guiding planes now than three years ago, even though flights are increasing, according to a project published in December by The Courier-Journal and Gannett News Service. The controllers’ union contends that some facilities are critically understaffed, causing flight delays and increasing the chances that overworked controllers could cause a fatal mistake.The controller force also is facing a wave of retirements. The number of controllers choosing to retire has exceeded FAA projections three years in a row, The Courier-Journal and Gannett found. That is putting more of the workload on less-seasoned controllers and trainees. FAA has said that a second controller at Lexington would not have made a difference in the Lexington accident because that controller would have been looking at radar, not the airport runways.The agency also says that most of the nation’s air traffic control facilities are adequately staffed and that it has a plan to deal with the retirements. Comair in October sued the airport and FAA, saying both made mistakes that led to confusion by the Comair pilots. Blue Grass Airport in December sued Comair, saying negligence and wrongful conduct by the airline and the flight crew were the only cause of the crash. Reporter James R. Carroll can be reached at (202) 906-8141. Check www.courier-journal.com for updates.

Are blacks underrepresented on Jefferson County juries?

According to the Courier Journal, not enough African Americans are making it onto Kentucky juries. While African Americans make up about 20% of the county's population, they make up only about 16% of criminal juries and 16% of criminal juries. As a result, the Jefferson Circuit court will begin to monitor strikes in an attempt to figure out why our juries do not reflect our population. I can only speculate as to the reason. In my experience, blacks are not 20% of the venire, making it unlikely that 20% of the eventual jury will be people of color. I will look forward to seeing the results. Here is the complete story: Study: Blacks underrepresented on juries By Jason Riley jriley@courier-journal.com The Courier-Journal Two-thirds of the defendants on trial in Jefferson County courts over the last four months were black, while about 16 percent of the jurors also were black, according to a study released Tuesday. And the number of black jurors who sat on civil trials was 11 percent, according to the study by the Commission on Racial Fairness. By comparison, African Americans make up about 20 percent of the total population in Jefferson County, and the commission had hoped to get a similar result for jury representation. In early October, the 22-member commission asked local judges to begin monitoring the number of blacks on jury panels and track how and why they are being removed. The results were announced Tuesday afternoon. The commission was set to discuss them. The surveys results come more than a year after a Courier-Journal series found that Jefferson County residents who live in low-income, mostly black areas are less likely to sit on juries. The commission study found that of the 28 criminal cases followed since late September, 48 jurors were black and 249 were white. Of the 10 civil cases studied, 12 jurors were black and 86 were white. The commission had hoped to learn whether there is a problem with racial diversity in the courts and where it is occurring — whether it be with random removals, prosecutor or defense attorney challenges or a lack of blacks in the pool. According to the results, prosecutors removed 24 percent of the black jurors in criminal trials compared to 76 percent of the white jurors. While defense attorneys struck eight percent black and 92 percent white. The Commission on Racial Fairness has also has been tracking the race of the county’s total jury pool, roughly 250 people chosen every two weeks. Of the 11 jury pools looked at, only one was made up of at least 20 percent black members. Unlike some states, Kentucky courts don’t track jurors’ race to determine whether minorities are fairly represented. State court officials have said they don’t ask about race to avoid the appearance that it is a factor in jury selection. The newspaper series found that attorneys across the state — both prosecutors and defense lawyers — removed potential jurors, including minorities, for the kinds of clothes they wear, for being single parents, even for the expressions on their faces. And it found that some courts, like Arizona’s Maricopa County, which includes Phoenix, ask potential jurors to list their race to ensure that jury pools represent the community. The commission is expected to issue a report on its findings and present them to Kentucky Chief Justice Joseph Lambert. Reporter Jason Riley can be reached at (502) 582-4727.