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Brennan & Kavouklis, P.A. Newsletter Archive |
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FALL 2005 ISSUE
INSURANCE COMPANY BAD FAITH
Brennan & Kavouklis, P.A. Injury
Law Alert Newsletter
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Most of us carry insurance--on our homes, our cars, our lives.
The insurance company that sold you the policy probably tried
to tell you that it was selling peace of mind. You make your
payments every month, and then when you finally do have a claim--surprise--it
is denied. Sometimes, the denial is proper because the claim
truly is not covered. Sometimes, however, the denial is improper,
and the claim you have made really should be covered by the insurer.
What then?
The answer is that you may have a claim against your insurer
for an improper claims practice, or a "bad-faith" claim
as it is commonly called. Bad faith by an insurance company can
occur any time an insurance company refuses to honor a legitimate
claim by someone it insures. Examples of bad faith include misrepresenting
facts regarding coverage, not attempting to come to a prompt
and fair settlement of a claim, forcing an insured to sue by
making "lowball" offers, and neglecting to investigate
the facts to determine whether a claim is covered or not.
There are laws that prohibit improper claims practices by
an insurer, but, like all laws, they are not always followed.
In fact, insurance companies test the limit of the law every
day, counting on the fact that the person with insurance is unlikely
to go talk to a lawyer and find out his or her rights. The reason
for this is simple: Every time that the insurer does not pay
a claim it should have covered, the insurer profits.
So how do you protect yourself? First of all, an insurance
adjustor is not your friend. Once you make a claim that
could subject the insurer to liability, the adjustor is usually
focused on keeping the size of the payout as small as possible.
Be aware that most insurance adjustors are not lawyers, and even
the ones who are lawyers are not always correct when they say
a claim is not covered.
No matter what the adjustor tells you, talking to a lawyer
is a good idea. A lawyer works for you, and he or she will be
able to tell you whether the claim is covered or not and whether
the settlement offered is fair. Adjustors may tell you that the
expense of consulting a lawyer and the time it takes to pursue
a case through the courts mean that you should take what is being
offered right now. Remember: The adjustor is not looking out
for your best interests, and the "advice" not to talk
to a lawyer is intended to discourage you from finding out the
facts.
WE APPRECIATE YOU
Thank you for choosing our firm for your legal needs.
We hope that you will continue to count on us when you need legal
help. We are just a phone call away.
We also appreciate the trust that you have placed in us
by referring your friends, family, and associates to us for legal
services. Thanks!
SEVERE INJURIES CAN OCCUR AT CHILDBIRTH
Pregnancy and childbirth have inherent risks and can result
in complications and injuries to the mother and the child. All
injuries suffered during birth are devastating, but some are
the result of mistakes made by health-care providers. You may
have a legal claim for damages for yourself and your child if
a doctor or other health-care provider:
fails to adequately monitor the mother's or child's condition;
fails to choose appropriate procedures and treatment;
fails to adequately diagnose and treat risks and complications;
fails to consult specialists when necessary; or
fails to obtain your informed consent prior to treatment.
Birth injuries reportedly occur in 27 of 1,000 live births.
One major cause is oxygen deprivation, which commonly happens
when the umbilical cord is compressed or twisted during birth.
Another cause is trauma that may occur when a baby moves into
an unusual position during the birthing process. Common birth
injuries include brachial plexus palsy, cerebral palsy, Erb's
palsy, Klumpke's palsy, skin irritation, temporary paralysis,
brain damage, and fractured collar bones.
Physicians and health-care providers are obligated to treat
patients with reasonable competence, and they commit malpractice
when they are negligent in their treatment or when they have
otherwise departed from accepted standards of medical care. If
that negligence injures you or your child, you may have a legal
claim.
When a doctor commits malpractice, you can recover damages
not only for physical injuries but also for economic damages,
such as medical expenses, loss of income, and loss of value of
services provided. Other kinds of noneconomic damages may be
available, such as money awarded to compensate you or your child
for physical or mental pain and suffering, disfigurement, or
physical impairment. Of course, the amount of damages varies
depending on the severity of the injury and on the circumstances
of each case.
A qualified lawyer can determine whether you have a claim
for medical malpractice by hiring medical experts, by studying
the medical records, and by determining whether your physician
or health-care provider deviated from the applicable standard
of care. If you are the victim of malpractice occurring during
the birth of a child, you must file your claim in a timely fashion
or else lose your right to do so. Because birth injury cases
are complex, it is important to contact our firm AS SOON AS POSSIBLE
to protect your rights.
CASE BY CASE
Cold Remedy Caused Stroke
The possible dangers presented by certain prescription medications
seem to be constantly in the news, but a recent case reminds
us that even nonprescription medicines may not always be safe.
A suit was brought by a 33-year-old man who had taken Alka-Seltzer
for three days to treat a cold. He had a stroke, and experts
testified that the stroke was caused by phenylpropanolamine (PPA),
a decongestant that is found in Alka-Seltzer.
The man's doctor testified that PPA had been associated with
an increased risk of stroke, a claim that Bayer (the maker of
Alka-Seltzer) denied. The jury ruled in favor of the plaintiff,
determining that Bayer had made a dangerous or defective product
despite there being safer alternatives available. The jury awarded
the plaintiff $400,000 in damages. Bayer's case was likely not
helped by the fact that it voluntarily removed Alka-Seltzer containing
PPA from the shelves in late 2000, and has since removed PPA
from Alka-Seltzer.
Although not a huge amount of money for a large drug company,
the verdict could signal bad news for Bayer in other suits. This
case was the first of over 1,100 PPA suits against Bayer to go
to trial.
NEW RULES AFFECT CHECKING ACCOUNTS
Checking account transactions are such a widespread part of
our lives that consumers of banking services are well advised
to become acquainted with major changes affecting banking laws.
Federal legislation called the Check Clearing for the 21st Century
Act, or "Check 21" for short, recently went into effect.
Two of the more important aspects of Check 21 are explained below.
The Dangers of "Floating"
Check 21 will allow financial institutions to process "substitute"
checks--high-quality paper reproductions created from electronic
images of both sides of an original check. In time, check processing
will be faster, and this is where there will be ramifications
for check writers and depositors.
While it has always been prudent to have enough money in your
account to cover a check the moment you write it, who has not
used the lag time in check processing to make a necessary deposit?
That will soon become a riskier strategy as electronic check
processing becomes more prevalent. It will also be more important
than ever to keep checkbooks up to date, especially bearing in
mind deductions for ATM withdrawals, bank fees, and debit-card
purchases. (Another downside to faster check processing is that
you may have less time to place a "stop payment" on
a check that you have written.)
As a last resort, there are overdraft services, including
overdraft lines of credit. They have their place, but remember
that each use of an overdraft service is essentially a loan,
usually with interest charges or other fees.
Electronic Substitute Checks
Today, most banks do not return customers' actual checks with
their monthly statements. Under Check 21, even your bank may
not receive your original check but, rather, an electronic substitute
check created by the bank where the check was deposited. As long
as the substitute check meets standards established under Check
21, it should be just as effective as the original for a customer
who needs to prove a disputed payment. Of course, long before
the enactment of Check 21, images of checks, rather than the
real thing, have enjoyed widespread acceptance as proof of payment.
Even if the substitute check falls short in some way, Check 21
provides warranties and remedies to protect the parties to a
transaction.
IF YOU ARE BITTEN BY A DOG
If you are bitten by someone else's dog, it is important to
find out certain things as soon as possible in order to strengthen
your case.
The most important information is the identity of the dog that
bit you. If you cannot identify the dog, it is difficult to find
the owner.
Next, you need an accurate description of the biting incident.
Where were you? Where was the dog? What happened? Why did the
dog attack? If there were witnesses to the attack, be sure to
get their names and addresses.
Keep a good record of your injuries. Particularly helpful are
photographs showing the extent of your injuries before they heal
and pictures of the scene at the time of the attack.
Once you have as much of this information as you can get, you
need to try to link the dog with the owner. Sometimes, this proves
to be very easy. Other times, it is more difficult. If you have
been injured by a dog, please contact us regarding your case.
We can help you get the money you deserve.
BICYCLE SAFETY
When a car or truck has a collision with a bicycle, the bicycle
rider usually loses, no matter who legally had the right of way.
Bicycle riders should take extra care to obey the following safety
tips:
Remember: Bikes Are Vehicles, Too
Legally, bicycles traveling on a road are required to be treated
the same way as any other vehicle traveling on the road. This
means that bicyclists need to obey the same laws as other drivers.
Don't run red lights, change lanes without signaling, or commit
other infractions. If you would not do it in a car, don't do
it on a bike.
Wear a Helmet
The easiest way to protect yourself is to always wear a helmet
when you ride. Some jurisdictions require all riders to wear
helmets but, even where it is not required, wearing an approved
helmet can significantly reduce the chance of serious head injuries
in the event of an accident.
Be Visible
Because bicycles are much smaller than cars and trucks, it
is important to make sure that others using the road can see
you. Make sure that your bicycle has reflectors on the front
and back and even on the wheels. When riding at night, wear light-colored
clothing and consider using a light.
Be Aware
The best safety advice is to be aware of the conditions around
you and be careful when riding. Always look both ways when entering
a street and stay on the correct side of the street when riding.
Keep a lookout for drivers who may not be looking out for you.
Like other drivers, bike riders should ride defensively.
THEY SAID IT
The following exchange between an attorney and a witness actually
took place in a courtroom.
Attorney: Are you married?
Witness: No. I'm divorced.
Attorney: And what did your husband do before
you divorced him?
Witness: A lot of things I didn't know about.
If you are interested in receiving help on your potential
case, please click
here for free (secure online) Case Evaluation. Any initial
consultation with Brennan & Kavouklis, P.A. is free. For more information,
contact us at 813-254-7770, or by e-mail
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