Life Insurance Claims: Important Information for Beneficiaries and Claimants

IMPORTANT INFORMATION ABOUT LIFE INSURANCE CLAIMS©
By: Mark Wolfe, Attorney at Law
Mobile, Alabama
mark@bfw-lawyers.com


While most of us hope that a life insurance claim arising from the death of a loved one will be a simple and hassle free process, the fact is many life insurance claims are initially denied. These denials can be for many reasons. Some times the reasons for such a denial are legitimate, but many times they are wrong. In fact many insurance industry experts say that up to 40% of life insurance claim denials are done so wrongly.

This article will help you with some basic information about life insurance claims and locating policies. Then the article reviews common reasons why life insurance claims are initially denied and concludes with important information for claimants if the claim is denied.

I. LIFE INSURANCE CLAIMS & LOCATING OTHER POLICIES

Notify the Company of the Claim. While this is a very basic step it can be a little difficult if the policy is older. Mergers and acquisitions of life insurance companies can make locating the correct successor or remainder company a little difficult. However, internet searches can usually help you quickly identify the correct company name and location for claim notification. Also, many life insurance agents or attorneys who handle life insurance claims have this information available or access to the correct resources to help identify where and how the claim should be submitted.

What You Need to Do. Once you’ve contacted the company you must complete the claim form. Many of these claim forms can now be downloaded from the company’s web site. At the very least you will have to submit a copy of the death certificate and the company may require additional records related to the claim. Always reference the claim number or policy number (or both) on all documents or material submitted. Until the claim is paid in full: Keep copies of all correspondence and documents sent to the life insurance company. Keep all letters and material sent from the life insurance company. If a claim is denied, make sure you understand and comply with the requirements for an appeal. (IMPORTANT: Please make sure to read more about appealing a denial below.) Why are so many life insurance claims denied? Most life insurance claims adjusters recognize that many life insurance claimants do not question or challenge a denial of life insurance benefits. This means that if there is a “close call” on whether or not benefits should be paid, they automatically opt for denial first in hopes the claimants will just “go away.”

Locating Additional Policies. It’s a fact, many life insurance benefits go unclaimed because beneficiaries do not realize a policy exists. Below are some tips for locating additional life insurance policies.

1. Review the decedent’s check book or bank statements looking for premium payments,

2. Review the decedent’s tax returns for the last several years to see if interest or cash dividends from a life insurance policy were listed. There should be a corresponding 1099-INT from the life insurance company. These payments will be reported directly on form 1040, 1040A and 1040EZ or on Schedule B if an itemized tax return was filed,

3. Contact the decedent’s employer and/or former employers to see if any type of life insurance was offered through the company’s benefit plan program and if the decedent purchased a life insurance policy or was provided a life insurance policy through employment,

4. Review all disability policies for the decedent to see if death benefits are also provided,

5. Review any known life insurance policy to see if additional benefits such as double indemnity for accidental death may apply.

6. Check with the decedent’s auto insurance company or homeowner insurance company. Many of these companies will also offer life insurance policies for their customers.


II. DENIAL OF BENEFITS AND APPEALS

Standard life insurance claim denials. Many times if a basic life insurance claim is denied, it is done so based upon a process known as “retroactive underwriting.” This is a claim investigation technique that allows the insurance company to more fully and completely examine the deceased’s prior medical history. These prior medical records are reviewed thoroughly to see if the deceased left out or failed to disclose a pre-existing medical condition when completing the life insurance application. This “failure to disclose” is then used as grounds to deny the life insurance benefits. However, most claimants are not aware that such a denial must have materially effected the underwriting risk associated with issuing the policy. Simply put, the company must be able to legitimately argue that “but for” the undisclosed prior medical condition, the policy would not have been issued or the rates for the policy would have been significantly different. The issue of “material risk” is a complex issue that is often legally debatable.

Accidental death or double indemnity benefits. Some companies issue stand alone accidental death life insurance policies or some standard life insurance policies have a “double indemnity clause” which pays twice the face value of the policy if the death is caused by an accident. Yet the policy language concerning the term “accidental death” is often drafted so vaguely that it gives the company lots of “wiggle” room to initially deny accidental death benefits. Terms like “sole and only proximate cause of death”often involve complex medical and legal analysis but give the company a very legalistic sounding excuse not to pay.


BEFORE YOU FILE AN APPEAL OF A DENIAL. If you have questions about the denial of any life insurance benefits, make sure you fully understand your rights and obligations under the policy. Most life insurance policies allow claimants to file an appeal of the decision to deny benefits. Yet many times claimants are unaware of the potential consequences of simply “appealing” the denial. Generally, once a company has denied the life insurance claim, the claimant has the burden of identifying specific reasons for the appeal and providing supporting documents or records to support the appeal. If the life insurance policy in question has been provided through the decedent’s employment or through a group, the failure to comply with the appeal requirements can be extremely detrimental. In one recent example a Federal Court determined that the claimant’s failure to submit any “new evidence” during the appeal process provided for in the plan, precluded the claimant from presenting that new evidence at trial. [See Hancock v. MetLife, 590 F.3d 1141 (10th Circuit 2009).]

NOTE: If the claim is denied consider consulting immediately with an experienced life insurance claims attorney in your State. Note: Most attorneys who handle life insurance claims for beneficiaries do not charge for a consultation and work on a contingency fee (no benefits = no fees). Also, many times an experienced attorney can help resolve a denied claim before having to resort to filing a lawsuit.


III. CONCLUSION

While life insurance claims should be simple and easy, they can often times become arduous and legally complex. The simple fact is insurance companies do not like to pay claims and have tremendous resources to fight claims. With many claimants of life insurance benefits in a state of grief and mourning, the insurance company knows it has the upper hand and this often results in the wrongful denial of life insurance benefits. If you believe your claim for life insurance benefits has been wrongfully denied, please consider consulting with an experienced attorney who knows and understands this area of the law.

Note from the author: If you are reviewing this publication or link during a time of loss, please accept my condolences and sympathy for your loss. I pray that you find comfort and understanding for your loss and that the passage of time will replace the sorrow of your loss with the joy and blessing of the memories of moments shared. - Mark

BF&W Attorneys Rated Highest

The on-line attorney rating service AVVO.com recently rated the attorneys at Boteler, Finley & Wolfe as the highest rated local attorneys in the Mobile area for motor vehicle collision claims and cases. AVVO.com rates attorneys based upon a number of criteria including case results, peer endorsements, professional services and legal publications. "I think the fact that all three attorneys from our office received a 'superb' rating from AVVO reflects our true commitment to doing our best for our clients," said Mark Wolfe. A superb rating is the highet available from the site. You can find out about each attorneys rating by following these links: Mark Wolfe, Knox Boteler and Karlos Finley. AVVO rates attorneys on a scale from one to ten and to be considered for the superb classification an attorney's rating must be 9.0 or higher.

In addition to ranking attorneys for consumers, the AVVO.com site allows consumers to post questions for attorneys to answer and has numerous legal guides written by attorneys.

Don't Wait Until the Last Minute to Consult an Attorney

INJURY VICTIMS WHO WAIT TOO LONG CAN FIND IT DIFFICULT TO HIRE AN ATTORNEY. Alabama law generally has a two-year statute of limitations for auto-negligence claims. There are exceptions to this general rule of law, including if the victim is a minor or if the at-fault driver was in the line and scope of employment for a city or county agency. [To preserve the two-year stature of limitations against a city or county agency, the victim must notify the agency of the claim within a prescribed time period.] At BF&W we have recently seen an increase in the number of people who are trying to handle their personal injury claim without an attorney and then call for a quick consult shortly before the statute of limitations expires. The following two examples show why waiting too long to consult an attorney can be detrimental for an injury victim.

A woman from Texas called our office with her statute of limitations about to expire in a week. She was involved in an accident on I-10 while traveling through Mobile and she had been trying to handle the claim herself without hiring an attorney. The insurance company had finally made her a settlement offer about a week before her statute of limitations would run but it was a lot lower than she expected. She was calling to find out if the offer was “fair” and if to see if she could hire our firm to file suit on her behalf. She consulted with Knox Boteler by phone and he explained that while the settlement offer was probably lower than the true value of her claim, there was not enough time to make a fair evaluation of her claim before the statute of limitations expired. Knox also explained to her that it was not fair of her to expect BF&W, or any attorney or law firm, to file suit on a case that they had not been given adequate time to investigate or evaluate for purposes of litigation, especially when there was a pending settlement offer.

In another similar situation, BF&W received an e-mail request through our web site where a local man asked us to tell him whether the insurance company’s settlement offer for his auto-negligence claim was “fair”. His statute of limitations was set to expire within two and half weeks. The information he provided indicated the accident aggravated a pre-existing condition. It was determined that a fair evaluation of his claim would require a review of previous medical records as well as current medical records and there was not enough time to collect and evaluate those records before his statute of limitations expired. Once again, it was suspected that the offer was lower than the true value of the claim, but without adequate time to investigate BF&W was not be able to assist him.

The proper evaluation of a personal injury claim involves a detailed factual review of the accident, which may include witness interviews and interviews with the investigating officer. It also includes a detailed review of the medical records and narrative reports of treating healthcare providers. It may also require the review of past medical conditions if there is an aggravation of a pre-existing condition and it requires the review and analysis of any other additional aggravating or mitigating circumstances related to the accident and/or injury. Finally, the claim is analyzed based upon the legal venue that has jurisdiction of the claim. With this information, an experienced auto-negligence attorney can then begin establishing a Probable Verdict Range (PVR) for that particular claim or case. It is important for victims to remember that if the claim cannot settle then the “value” of the claim will be determined by a jury’s verdict within the jurisdiction of the claim or case. The PVR becomes the benchmark to determine whether a settlement offer on a claim is fair.

Even if there is an “offer on the table” before consulting with an attorney, if the attorney is provided adequate time to investigate the claim there may be a variety of benefits the attorney can bring forth for the claimant. At BF&W we know many people are reluctant to consult with an attorney about a personal injury claim because they don’t want to appear greedy. We also know insurance adjusters are trained with tactics to discourage claimants from consulting with an attorney. Yet in both cases detailed above, we believe we could have provided a significant benefit for both of those victims had they just consulted with our office in a timely manner. If you have an ongoing personal injury claim please consider consulting with an experienced auto-negligence attorney as soon as possible and no later than several months before the statute of limitations expires.

Reporter John Stossel = Hypocrite

Reporter John Stossel is a $400,000.00 hypocrite. He never misses an opportunity to bash Trial Lawyers and our civil justice system. Recently he stated, "for every one person a lawyer helps, thousands are hurt." Yet he himself was the beneficiary of a civil lawsuit against a professional wrestler who slapped Stossel twice in the course of an aggressive "Geraldo" style interview. Reports indicate his civil lawsuit was settled with him receiving a $400,000.00 settlement. For more on this story and to see the interview where Stossel got slappped, click here.

Last year we reported on the US Chamber of Commerce's aggressive use of the civil justice system to press their advantage, yet all the while screaming about "tort reform" and "frivilous" lawsuits. In past editions of Legally Speaking we have reported on a number of hypocritical situations where outspoken critics of Trial Lawyers and our civil justice system have brought a myriad of lawsuits and claims against others.

It's easy for reporters and politicians to rant and rave against Trial Lawyers and our civil justice system so as to revoke the rights of ordinary people....that's freedom of speech. Yet when these same critics use the civil justice system to their own advantage...well I guess that's just freedom of hypocrisy.

Summer Safe Driving Tips

July and August are the two worst months of the year for motor vehicle collisions. Many of these collisions can be avoided. Please keep in mind the following safe driving tips during the summer months.

1. Watch out for children: When driving in neighborhoods and especially when backing your vehicle.


2. Check brakes, headlights and brake lights, signals, tires, oil and other fluids before starting any long trip.


3. Plan your trip in advance using maps and/or online mapping services.


4. Be patient and follow and obey the rules of the road.


5. Be a defensive driver and a cooperative driver with others on the roadway.


6. Use caution around 18-wheelers and remember to avoid their blind spots.


7. Limit cell phone use while driving and DO NOT TRY TO TEXT AND DRIVE!


8. Turn on headlights in rain or bad weather.


9. STAY FOCUSED ON YOUR DRIVING. Avoid or limit in car distractions.


10. USE SEATBELTS and make sure car seats and booster seats for children are installed properly and used while the vehicle is operating.

Have a safe and enjoyable summer. Drive carefully!

REMINDER FOR TEEN DRIVERS

JUST A REMINDER: May is National Youth Traffic Safety Month.

The National Organization for Youth Safety (NOYS) is reminding parents and teens that May is National Youth Traffic Safety Month. NOYS encourages and promotes youth led safe driving initiatives in high schools through out the United States. This year over $100,000 in funds are available from NOYS to support safe driving programs and projects for youth. If you have teenage drivers in your household, we hope you will take a moment in the next few days to remind them about the importance of safe driving.

Why Our Cars Are Safer

Below is an op-ed piece from the Washington Post written by Alabama lawyer, Gibson Vance. Mr. Vance is the President of the American Association for Justice.

How our cars got safer

By Gibson Vance April 16, 2011

Traffic deaths in the United States have dropped to their lowest level since 1949, according to a report released this month by the National Highway Traffic Safety Administration (NHTSA). Remarkably, this drop occurred even as Americans drove 21 billion more miles in 2010 than they had the previous year. The drop in fatalities is due in large part to the fact that cars are getting safer. Since the introduction of the Ford Pinto nearly four decades ago — a car synonymous with danger, destruction and executives putting profits ahead of consumer safety — amazing advancements have been made in auto safety. The technology is better, regulations are stronger and buyers have more information. Not surprisingly, consumers are drawn to cars with the latest safety features. Yet these factors alone do not tell the whole story. History shows that litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits. The Ford Pinto litigation sent a strong message to the auto industry. Unfortunately, manufacturers have still sold dangerous cars. In June 2004, a Dallas-area mother stopped her Ford F-150 truck to speak with her husband through the driver’s side window. Her 3-year-old daughter leaned out the passenger’s side window and accidentally hit the rocker switch, causing the window to close on her neck. When her parents noticed moments later, it was too late — their daughter was strangled. As power windows became more common, so too did instances of children being strangled. Seven children died within a three-month period in 2004. Manufacturers were aware of the issue, and the fix was relatively simple and inexpensive. In response to regulations in other countries, European and Asian cars already used a safer switch — one that must be pulled up to raise a window — and so did many U.S. manufacturers on cars they offered to foreign markets. Yet incredibly, U.S. manufacturers did not install the safer switches on domestic cars because NHTSA had no rules governing power-window safety. Litigation eventually forced universal acceptance of the safer switches in 2006. It is easy to take for granted just how much safer vehicles have become and how safety measures have been standardized. For years, the auto industry has worked to undermine regulations and limit its liability by pushing for complete immunity from lawsuits when their vehicles comply with minimum federal safety standards. This would, in short, be devastating for consumers. Recall that the Pinto’s design met all government standards of the time. Had compliance with federal standards been a complete defense of vehicle safety, Ford could not have been held accountable for the many burn victims that the company was later shown to have anticipated. Put another way, without the civil justice system, gas tanks would still explode in rear-end collisions, seat belts and airbags would not be standard, and cars would roll over onto roofs that would be easily crushed. There are multiple reasons behind the welcome news that traffic deaths continue to decline. But the role of the civil justice system is often overlooked. Litigation has spurred safety innovations in vehicles for more than half a century and will continue to be essential in keeping Americans safe and holding manufacturers accountable.

Time for "Bill of Rights" for Insurance Claimants

On Sunday, February 13, Mark Wolfe of Boteler & Wolfe had an article published in the editorial section of the Mobile Press Register. As a special editor to the Press Register, Wolfe pointed out that the frustrations now faced by BP Oil Spill claimants are the same frustrations faced by thousands of Alabama citizens each year when they attempt to resolve insurance claims. His article advocated for a "Bill of Rights" for insurance claimants that would specifically outline the claim procedure and protocol an insurance company will use in reviewing and evaluating an insurance claim in our State. To read the full story, click here.

Commentary on the Right to Trial By Jury

The following is a post from a Michigan resident concerning the right to trial by jury and accountability. The post came after a local Michigan paper ran an article about an ongoing trial by a personal injury victim who was seriously injured in a motor vehicle collision. The article generated a lot of comments, many of them negative about injury victims and their attorneys prosecuting an injury claim through Court.

“…independent treating doctors saying this poor person is permanently disabled, and insurance company doctors who miraculously find nothing and blame everything on something completely unrelated. Surprise, surprise. The point is only the jury hearing the evidence knows what the true facts are. But one thing we all should defend as Americans is the right to trial by jury, and if indeed this woman has suffered serious injury through the fault of another, and her right to life and pursuit of happiness has been reduced as a result, then it is not only fair but essential that an American jury who hears all the evidence return a verdict that encompasses the full measure of her damages and losses. That is what the founding fathers envisioned in the Bill of Rights, that is what my Republican party always stood for - individual liberty and the right to trial by jury - before it was taken over by insurance companies and big business. This jury is performing an essential American function, and holding someone who has presumably caused great harm responsible and accountable. I fail to see how throwing out emotional charged and frankly insulting language about ambulance chasers or diminishing a person’s worth or liberty is responsible. A person who has wronged another should pay the full measure of the damages they have caused. That is what we teach our children, that is what the founding fathers to this country envisioned by protecting our freedom and liberty in the Bill of Rights. Throwing out stupid or insulting names diminishes us all.”

Commentary from MCW: If someone takes money from you, you have a right to seek redress through the Courts to recover what was taken from you. Personal injury victims who have been carelessly or recklessly injured by someone should have the same right to recover their damages in Court. The fact is most of the time when people have to resort to a lawsuit to recover their damages, it is because an insurance company has made a decision to offer less than is truly owed on the claim. Many times these offers are so low they do not even cover the incurred medical bills and lost wages. This leaves victims with two choices: Suffer a financial loss due to someone elses irresponsible behavior or seek full compensation through the Court system. For those that don't believe in lawsuits, lend me $100 and I'll promise to pay you back that amount but then when the money is due I'll only offer you $25 to pay you back. If you want the other $75 I "allegedly" owe you, you'll find yourself in the same boat as many injury victims in our State.

OIL SPILL UPDATE

SUMMARY OF OPTIONS FOR FINAL AND INTERIM PAYMENT CLAIMS

In November, 2010, Ken Feinberg and his administrators with the Gulf Coast Claim Facility (GCCF) established the following procedures for final and interim payment claims. If you need assistance regarding a clam with the GCCF, please contact Knox Boteler or email him at Knox@Botelerwolfe.com.

Final Claim. A final claim seeks to resolve the entire claim with BP and other responsible parties. You will be required to sign a release of liability. Upon executing this release you will not be able to seek further compensation. The GCCF will fully evaluate and determine the final payment claim within 90 days receipt of the “substantiated” claim. Once receiving your final payment offer, it will be valid for 90 days. You may submit a full review final payment claim at anytime prior to the close of the GCCF program on August 22, 2013.

Voluntary Quick Payment Final Claim. The GCCF has establish a “quick payment” of $5,000.00 if you are an individual claimant, or $25,000.00 if you are a business claimant. This “quick payment” is only for those who received an emergency advance payment. This option does not require you to submit any additional supporting documentation. However, you will be required to execute a full and final release just as you would with the full review final payment claim.

Voluntary Interim Payment Claim. If you do not select the quick payment final claim or the full review final payment claim, the GCCF will still allow for submission of an interim payment claim for past losses and damages. You may only submit an interim payment claim once per quarter of each calendar year until August 22, 2013. Within 90 days of receipt of a “substantiated” claim for interim payment, the GCCF will evaluate and review the submitted documentation.


BP Oil Spill Workers Update

As reported in the Fall Newsletter, the firm is active in protecting the rights of those oil workers physically harmed by chemical exposure. Earlier this month, Knox Boteler requested Congressman Jo Bonner’s office assistance in communicating with the National Institute of Environmental Health Services. This federal agency has been appointed to conduct studies on the effects on the oil spill workers. Funding for such a study was provided by BP. While the practices and procedures for this study were implemented in a recent meeting in Tampa Florida, this information has yet to be shared with these affected workers. With the help of Congressman Bonner, the firm is hopeful the deficiencies in this area of support for spill victims can be corrected.

IMPORTANT UPDATE RE: Oil Spill Claims

The final protocol for claims related to the BP oil spill was released today by the Gulf Coast Claims Facility. Victims will choose one of the two options: 1) accept a final lump sum payment for all present and future damage in exchange for a full and final release surrendering their right to sue or 2) continue receiving quarterly interim payments based upon past damage for the that three months. If the last option is chosen, Feinburg specifically stated, “there is no guarantee that, in the future, a lump sum Final Payment will be as generous as it will be currently.” There will be an non-binding appeals process for those claimants who receive an offer of total compensation in excess of $250,000, but believe it inadequate. All claimants will be able to appeal their GCCF award to the Coast Guard and the Federal Courts. A decision regarding which option to choose should be made on a case by case basis. If you need any assistance regarding which option may be best suited for your personal and/or business claim, please contact Knox Boteler in our office. knox@botelerwolfe.com

Oil Spill Update for Business Owners

BP Oil Spill/Gulf Coast Claims Facility
update by Knox Boteler, Attorney at Law

By now, many Gulf Coast business owners have proceeded with or contemplated the filing of a claim for loss of business revenue with the Gulf Coast Claims Facility. Though the Feinburg Fund is in its third month of operation and the first of many deadlines are facing claimants later this month, no one is still sure what criteria is being used when administering a claim. While there have been repeated requests by our firm and others for additional information regarding the handling of claims, no response has been provided from the administrators. That said, please consider the following when making a claim against the “responsible parties.” Frankly, there are several pitfalls in the claims process that has not been communicated to the public:

Individuals and businesses may submit a claim for Emergency Advance Payment until November 23, 2010. The evaluation of an Emergency Advance Payment - up to six (6) months of losses - will, supposedly, be reviewed under a less rigorous standard than will be used for the Final Payment claim. Claimants can accept Emergency Advance Payments and reject the final payment if they find it to be unsatisfactory.

The Gulf Coast Claims Facility declared all claimants must apply for final payment of long term damages by August 23, 2013. However, we would encourage everyone to file ninety (90) days before this deadline because of concerns we have with the legal application of the Oil Pollution Act (OPA). Should you wait less than ninety (90) days from the deadline to bring a claim, you may be barred from filing a lawsuit.

Claimants accepting a final payment of long-term damages require the claimant to waive their right to sue BP or any of the parties responsible for the Gulf of Mexico spill.

Geographic proximity to the spill will not in itself prevent a legitimate claim from being processed. When submitting your claim, it may be beneficial for you to include a google earth map showing your business location. Too, it may be of benefit to include in your claim a brief description of your practice and the customers you serve.

At this point, DO NOT FILE FINAL CLAIMS. The claims process for final payments has not yet been established. Those persons and entities that have filed such claims will have no choice but to wait until those parameters have been set.

If your Emergency Advance Payment has been denied, you need to file a final claim before filing a lawsuit. It is not known whether a denial of an Emergency Advance Payment is a “denial” as defined by OPA.

A claim needs to state a specific dollar amount to meet OPA requirements. Also, be sure to include a claim not just for your business losses, but, also, the cost for assessing damages (accountant, appraiser, etc.). In addition, include an amount for PUNITIVE DAMAGES. While Feinburg has repeatedly stated the Fund will not consider punitive damages, it is necessary to include such a damage in order to prevent a waiver of such claim if a lawsuit has to be brought.

We anticipate the expiration of Emergency Advance Payment claims later this month will bring more criticism to the fund. Simply put, the Gulf Coast Claims Facility has only paid out a fraction of what is owed to Alabama businesses. Hopefully, this criticism will be to the benefit of all claimants, and we can write you with information that does not contain loopholes or pitfalls. In the meantime, for those of you that have made or will be making claims, please do not hesitate to contact us with questions regarding the claims process.

Please contact us if you believe you will need assistance in the presentation of your claim or would like further guidance. knox@botelerwolfe.com

US Supreme Court to Hear Important Case for Consumers

Class action lawsuits allow large groups of consumers to recover damages in legal matters involving smaller claims or cases. Many times the amount in controversy is too small to warrant an individual lawsuit. Such is the situation for Vincent and Liza Conception who caught AT&T overcharging sales tax on their cell phones. The amount of the overcharge was only $30.00 per phone but AT&T was apparently doing this to all its California customers. A class action lawsuit was brought against AT&T in California for all similarly overcharged customers by the Conceptions. However, in the fine print of the Conception's contract was a clause that said they would not bring a deceptive trade practices class action against AT&T and had to make any claim via arbitration. Arbitration is an extremely expensive procedure and it is not a forum that lends itself to small claims or cases.


The Federal Court in California ruled the clause to be void and AT&T has appealled to the US Supreme Court which has agreed to hear the case this week. Legal scholars believe this somewhat unknown and low profile case could be the death of consumer class actions in America if the US Supreme Court rules in favor of AT&T. For more information on this important case please see: AT&T Mobility Services vs. Conception.


If it wrong for a company to deceptively take $3,000,000 from one consumer it should be as equally wrong for them to deceptively take $30 from 100,000 consumers. It is our hope the US Supreme Court will agree with this logic, but we fear a favorable ruling for AT&T will open the door for more large corporations to take advantage of their customers.

Justice for Sale in Alabama?

With the elections just a few days away, we'd encourage you to visit the web site Justice for Sale that chronicles the influx of large cash contributions to the Alabama Judicial elections via nondescript PAC's. While we continue to push for the non-partisan election of Alabama judges, we also think it's time for Statewide judges in Alabama on the Alabama Court of Civil Appeals, the Alabama Court of Criminal Appeals and the Alabama Supreme Court to be appointed via a non-partisan committee and run for retention as opposed to election. This works well for the majority of other States and we believe such a system would better serve our citizens. However, until that time we must work within the system provided. We our endorsing and encouraging our friends and clients to vote for the following three candidates in the four statewide judicial elections next week:

- Rhonda Chambers, Alabama Supreme Court, Place 1

- Tom Edwards, Alabama Supreme Court, Place 2, and

- Deborah Bell Paseur, Alabama Court of Civil Appeals.

All of three of these candidates are highly qualified to serve the citizens of Alabama and each has received numerous endorsements from various Statewide newspapers and publications. No matter how you plan on voting next Tuesday, we hope you will take the time to cast your vote. The right to vote is an important part of the fabric of our great country and when you vote, you honor all of those people who have sacrificed so much to preserve and protect that right.

US Chamber of Commerce = Hypocrites

Over the past 15 years the US Chamber of Commerce has been one of the Country's most outspoken critics of the American civil justice system and "trial lawyers." Yet as you can see below from the recently released report from the American Association for Justice, the US Chamber has aggressively used litigation in our civil justice system to promote the interest of big business and insurance companies to the detriment of injury victims and consumers. So, it's OK to file mountains of civil lawsuits for big business and insurance companies but anytime an injury victim or consumer files a lawsuit they are "abusing" our civil justice system? I think if you look up the definition of hypocrite it should say, "see US Chamber of Commerce."

From the AAJ Press Release:
Washington, D.C.—Earlier this month, U.S. Chamber of Commerce President and CEO Tom Donohue called litigation “one of our most powerful tools for making sure that federal agencies follow the law and are held accountable.”
Yet ironically, the Chamber today holds its annual Legal Reform Summit – an event underwritten by its multinational corporate members that promotes undermining the civil justice system to weaken the basic legal protections of American workers and consumers.

The Chamber’s hypocrisy – blocking justice for everyday Americans while using the courts liberally for its own pro-corporate agenda – is the subject of a new report released today by the American Association for Justice (AAJ) that exposes the Chamber as one of the most aggressive litigators in Washington, entering lawsuits at a rate of over twice weekly.

“The Chamber’s ‘one rule for corporations, another rule for everybody else’ motto has come at the expense of ill-treated workers, defrauded investors and injured consumers,” said AAJ President Gibson Vance. “It readily spends millions of dollars to prevent Americans from holding wrongdoers accountable in the courtroom, and then aggressively uses the very same legal system to advance the agenda of its multinational corporate membership.”

In almost every case, the Chamber’s litigation on behalf of corporations has come at the expense of Americans’ health or financial security. The Chamber has: justified the actions of Wall Street banks that drove the country’s economy into turmoil; defended the most conceited and worst behaved CEOs and their most extravagant excesses; tried to force workers, instead of employers, to pay for their own safety equipment; filed numerous actions opposing any move to combat climate change; sought to shield pharmaceutical executives who skirted safety procedures that ultimately killed 11 children; opposed measures allowing workers to receive a rest period during a full work day; fought on behalf of lead paint manufacturers found to have poisoned thousands of children; defended corporations that discriminated on the basis of race and disability; and spent years defending big tobacco, asbestos companies and chemical companies found to have contaminated water and air.

“The Chamber has every right to seek what it believes to be justice in a court of law, even if representing the most deplorable corporate interests,” said Vance. “But it must learn that this right to justice belongs not just to their organization, or big business generally, but to all Americans.”

The report, titled “The Chamber Litigation Machine: How the Chamber Uses Lawsuits to Keep Americans out of Court,” can be found at www.justice.org/USChamber.

ALLSTATE FINED $10 MILLION FOR CLAIMS HANDLING PROCESS

Over the last few years many of our clients have heard us complain about insurance companies using Computer Assisted Claim Evaluation Programs when trying to determine the value of a personal injury claim. These programs receive a variety of infomation input by the claims adjuster and then return a "value" for the claim. The most infamous of these type programs is one called "Colossus" used by Allstate. The problem with these programs is that they can be easily mainpulated to make sure the "value" returned for claims in any particular area or region are unfairly low. This forces claimants to have to file lawsuits to secure full compensation or accept the low offer and suffer an economic loss.

On October 18, 2010, the New York State Insurance Department announced that Allstate Insurance Company has agreed to pay a TEN MILLION DOLLAR regulatory settlement concerning its improper use of claims handling software; Colossus. The multi-state investigation was lead by the insurance departments of New York, Florida, Illinois and Iowa and included 41 other States. According the the press release from the NYS Department of Insurance the investigation found "inconsistencies in Allstate's management and oversight of the Colossus software program. In particular, the examination found that Allstate had failed to modify or 'tune' the software in a uniform and consistent manner across its claims handling regions." Press Release.

The Alabama Department of Insurance (ADI) particpated in this investigation and settlement and, according to Ragan Ingram Chief of Staff for ADI, our State will receive $37,749.60 of the $10 million settlement. This situation again exemplifies why our State needs a "Claimants Bill of Rights" to protect individuals from over zealous insurance companies. Click here to see a sample of the Consumer Bill of Rights adopted by the Texas Department of Insurance.

Wolfe Gets Highest AVVO.com Rating

The internet attorney rating service AVVO.com has given Boteler & Wolfe attorney Mark Wolfe its highest rating. He received a 10.0 rating, which is the highest level available and put him in the "Superb Attorneys" category for the online rating service. Wolfe is only the second personal injury attorney in the Alabama Gulf Coast area to receive a perfect 10.0 rating. In fact he and only four other attorneys in Alabama received a 10.0 rating in the area of car accident claims and litigation and only two other lawyers in Alabama have a 10.0 rating in the area of trucking/18-wheeler collision cases. Review profile. In the past five years, Mark Wolfe has been consistently rated as one of the best personal injury attorneys in Alabama. He has maintained a Martindale-Hubbell AV rating (the highest available) since 2005, in 2008 he was only the second Alabama attorney to qualify for membership in the prestigious Academy of Trial Advocacy (membership limited to 1,000 lawyers worldwide), he has been recognized by the American Trial Lawyers Association as one of the Top 100 trial attorneys in Alabama and he has been included in the most recent edition of SuperLawyers.

August is Dangerous Month for Driving

Driving a motor vehicle any time can be dangerous, but there are some times that are statistically more dangerous than others. The Insurance Institute for Highway Safety spokesman, Russ Rader recently noted, “getting behind the wheel of a car is the riskiest thing most people do every day.” However, there are certain times driving is riskier than others. The following information is compiled from reports from Forbes.com and WebMD Medical News. Some of this information is common sense, such as driving at night is more dangerous than driving during the day and more crashes occur on the weekend than mid-week. With that said here are some crash facts to keep in mind:

- The National Highway Traffic and Safety Administration reports the most dangerous month to drive is August.

- Saturday is the most dangerous day to drive followed by Friday and Sunday.

- Tuesday and Wednesday are the safest driving days of the week.

- The most dangerous hours to drive on any given day are between 5:00pm and 7:00pm.

- The safest time to drive during the day is between 4:00am and 5:00am.

- July 4th is the most dangerous driving day of the year. Followed by: July 3rd, July 2nd, December 23rd ,January 1st and September 2nd.

- New Year’s Day and Halloween are the most dangerous days for pedestrians, and

- Almost half of all fatal motorcycle crashes occur in June, July and August.

Everytime you get behind the wheel of a car you are at risk. Please be a safe and courteous driver. Please use your seat belt and insist that all occupants in your vehicle use their seat belts and make sure all children are properly restrained.

Are You a Good Driver?

You’re Probably Not as Good of a Driver as You think You Are.

We certainly don’t want to offend anybody, but four separate studies by the Insurance Institute for Highway Safety, the National Highway Traffic Safety Administration, AAA’s Foundation for Traffic Safety and the University of California at Berkley’s Traffic Safety Center all confirm that most driver’s believe they are “above average” drivers and based upon that belief they rationalize or justify engaging in unsafe driving. The four studies confirm that almost 75% of drivers believe they are safer drivers than other drivers. Yet according to Rae Tyson of NHTSA, 95% of crashes are caused by human error. Tyson states that this over confidence in driving skills is dangerous because a driver’s false since of ability often is used to justify multitasking while driving or to engage in unsafe driving behavior. This observation is confirmed by AAA research. 82% of drivers say distracted driving is a “very serious” problem, but over half of those same drivers admit to using their cell phone regularly while they drive. 14% of those drivers even admitted to reading and sending text messages while driving! According to 75% percent of drivers, speeding is a “very serious” problem yet almost all of these same drivers admit to speeding “a little” most of the time they are driving. 20% admitted to driving at least 15 miles per hour over the speed limit on the highway and 14% admitted to doing the same on neighborhood streets! The next time you get behind the wheel of your car, just remember you may not be quite as good of a driver as you think you are....and the driver’s around you aren’t as good of drivers as they think they are either! Please be a safe and courteous driver.

OIL SPILL UPDATE

By Knox Boteler, Attorney at Law

As the great oil spill looms off our shoreline, we continue to monitor BP’s handling of the crisis. While BP American CEO Lamar McKay stated his company will pay “all legitimate claims” for economic damages, regardless of the expense, the Oil Pollution Act of 1990 (OPA) passed by Congress after the Exxon Valdez spill caps BP’s exposure to economic damages at $75 million dollars. BP has already admitted this limit will be exceeded by claimants. Within the last several days, bills were introduced in Congress that would increase the $75 million cap. Senator Jeff Sessions (AL) has introduced one of those bills. To date, such attempts appear futile as the bills are facing opposition from big oil supporters.

Boteler & Wolfe is working toward the best solutions for our clients to overcome the caps to recover direct and indirect economic damages. In one case, a class action has been jointly filed with a law firm in Missouri on behalf of landowners in Baldwin County. If the landowners show that BP and other responsible parties have engaged in willful neglect, gross misconduct, or violations of safety rules, the $75 million dollar cap will be defeated. Another alternative for victims to consider is a claims process established by the National Pollution Funds Center (NPFC). The NPFC is responsible for the administration of claims funded by the Oil Spill Liability Trust Fund (OSLTF). This fund allows for the payment of up to $1 billion toward economic damages. Potential claimants that can utilize this process include individuals, corporations, local governments, and many others. Potential claims that can be sought against the fund are real and personal property damage, removal costs, loss of profits and earning capacity, and loss of subsistence. While this alternative to litigation requires a claimant to first seek restitution from BP and other responsible parties through a claims procedure established by the companies, the administrative process may prove beneficial for certain classes of victims.
Irregardless of the alternative a victim utilizes for restitution, BE PATIENT with the process. The responsible parties for the disaster will attempt to resolve claims quickly. Do not fall victim to the companies’ strategies and ploys. Frankly, the environmental impact to our area will not be fully understood for some time. As always, we are available to answer any questions you or your family have regarding the spill. Please feel free to email me your questions at knox@botelerwolfe.com or contact the office.