Improper Solicitation from a Lawyer?

By | General | No Comments

Lawyers in all states, including Tennessee and Georgia, are governed by a set of rules regarding conduct, ethics, and professionalism.  Subject to certain specific exceptions, it is generally inappropriate for a lawyer to “solicit” business from “specifically identified persons.”  In other words, the client is supposed to choose a lawyer, instead of the lawyer choosing the client.  Nevertheless, a very small number of lawyers obtain police accident reports in an attempt to identify individuals injured in car wrecks.  Once those individuals are identified, a letter from the law firm is sent to the accident victim in an attempt to obtain business.  In Tennessee, the Rules of Professional Responsibility permit such communications if the lawyer has a familial or prior professional relationship.  In all other cases, such communications (solicitation) shall not be sent until more than 30 days have passed since the accident or disaster occurred.   If you are contacted by an attorney immediately after you have been injured in a wreck, it is possible that you are being improperly solicited by a lawyer that is disregarding the rules of professionalism that govern lawyers.  Do you want that law firm representing you?  Improper solicitation is an unsavory practice that should not be tolerated. 

 

Who is your ALJ?

By | Social Security Disability | No Comments

SSA, and in particular, the Office of Disability Adjudication and Review (ODAR) is implementing a new national policy: “the name of the judge will no longer be included in the notice of hearing.”  In other words, advocates and claimants will not know the Judge (ALJ) deciding the claim until the day of the hearing.  Such a policy was intended to stop advocates from “judge shopping”, but the consequences could be substantial.  Most advocates craft the presentation and Brief differently depending upon the particular likes and dislikes of the ALJ handling the claim.

For more information on Disability claims, check out our Tennessee and Georgia Disability Blog.

New Hours of Service Regs Fail to Reverse 11 Hour Rule for Truck Drivers

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New hours of service regulations for truck drivers have failed to reverse the 2003 change by the Bush administration increasing to 11 hours the time drivers can be behind the wheel each day.  The new rules by the Federa Motor Carrier Safety Administration, 49 CFR §395.3, offer some improvements, including a shorter work week and a required 30-minute rest break after eight hours on duty. For nearly 70 years, the limit had been 10 hours, until the 2003 change. 

 “It’s no secret that truckers often drive when they’re tired. In a 2005 survey the agency commissioned, 65% of truckers reported they sometimes or often felt drowsy while driving. And nearly 48% said they had actually fallen asleep while driving during the previous year. Putting weary drivers behind the wheels of 40-ton rigs hurtling down interstates is a formula for tragedy.”

 The foregoing is a good quote from a commentary on the change, or lack thereof, appearing in USA Today, entitled, “New Transportation Rules Fall Short.”  The full article can be viewed at:

 http://www.usatoday.com/news/opinion/editorials/story/2011-12-28/pilot-fatigue-trucker-rules/52258154/1  

 The Final Rule on hours of service can be reviewed at http://www.fmcsa.dot.gov/documents/hos-final/HOS-Final-Rule.pdf

Christmas Tree Fire Case on Front Page of Chattanooga Times Free Press

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Plaintiff, Norma O’Neal, was interviewed for an article entitled “Christmas tree fires rare but destructive” which appeared on the front page of the Chattanooga Times Free Press on Saturday, December 17, 2011.  Norma has only a small artifical Christmas tree on the table in her rental house this year, but it is the first Christmas tree she has had since her home burned down two years ago, just two weeks before Christmas 2009.    The 2009 fire started at the Christmas tree she had just put up the night before.  The article quotes Chattanooga Fire Department spokesman, Bruce Garner, who explains what can happen when a Christmas tree catches fire:  ” . . . it can be catastrophic.  It generates an incredible amount of heat and flames in seconds.”  Although Norma won her case against Nationwide in November, with a jury verdict totaling $784,676, she has “yet to receive a dime” as Nationwide has filed for a new trial.  Norma has lived in five different places in the past two years, including two motels, and the article concluded with her statement that  “It has been a terrible ordeal.” 

The Hamilton Firm reminds everyone to be very careful with real Christmas trees.  As beautiful as they are, they can explode like a firebomb inside your home, if the tree ever catches on fire.  Keep the tree branches away from electrical outlets and unplug the lights from wall when the tree is unattended.  Keep the tree far away from heaters and fireplaces.  And, keep the water resovoir full.

New Rule Will Ban Hand-Held Cell Phone Use by Drivers of Buses and Large Trucks

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Drivers of large commercial vehicles will soon be specifically prohibited from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving.  “When drivers of large trucks, buses and hazardous materials take their eyes off the road for even a few seconds, the outcome can be deadly,” said Transportation Secretary Ray LaHood in a statement. “I hope that this rule will save lives by helping commercial drivers stay laser-focused on safety at all times while behind the wheel.”  The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver’s commercial driver’s license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule.

“This final rule represents a giant leap for safety,” said FMCSA Administrator Anne S. Ferro. “It’s just too dangerous for drivers to use a hand-held cell phone while operating a commercial vehicle. Drivers must keep their eyes on the road, hands on the wheel and head in the game when operating on our roads. Lives are at stake.”  While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event. 

In September 2010, FMCSA issued a regulation banning text messaging while operating a commercial truck or bus and PHMSA followed with a companion regulation in February 2011, banning texting by intrastate hazardous materials drivers.  “Needless injuries and deaths happen when people are distracted behind the wheel,” said PHMSA Administrator Cynthia Quarterman. “Our final rule would improve safety and reduce risks of hazmat in transportation.”  Nearly 5474 people died and half a million were injured in crashes involving a distracted driver in 2009. Distraction-related fatalities represented 16 percent of overall traffic fatalities in 2009, according to National Highway Traffic Safety Administration (NHTSA) research.

Many of the largest truck and bus companies, such as UPS, Covenant Transport, Wal-Mart, Peter Pan and Greyhound already have company policies in place banning their drivers from using hand-held phones.

The final rule is published at http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/final/Mobile_phone_NFRM.pdf

Hamilton County Jury Returns $784,676.65 Verdict Against Nationwide in Fire Loss Case

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On Wednesday afternoon, November 9, 2011, a Hamilton County jury returned a $784,676.65 verdict in Circuit Court in favor of Norma O’Neal, whose Chattanooga home at 1706 Estrellita Circle went up in flames just two weeks before Christmas Day in 2009.  Hubert Hamilton and Patrick Cruise served as trial counsel for the Plaintiff.  

Mrs. O’Neal had just set up her Christmas tree the night before.  It was a real tree, not artificial.  She had wrapped the tree with strings of electric lights, and adjusted and rotated her tree so it was positioned just right.  She decided to finish the rest of her decorating later.  She unplugged the lights from an extension cord plugged into the wall and went to bed.  The next morning she went in to work at Blue Cross Blue Shield, where she is employed as a nurse.   It was a normal work day until 4:00 p.m. when she got the call that her house was on fire.  She rushed home and found the fire department busy extinguishing the fire.  The fire had started in the corner of her living room where the Christmas tree had stood.  All that remained of the Christmas tree was the charred trunk with strands of lights wrapped around it.  The living room, including some irreplaceable family antiques, was destroyed. 

 Later that evening the fire rekindled in a wall, and broke out again causing additional damage to the upper floor of the home, and into the attic.  Initially, the cause of the fire was listed as “undetermined”.

Mrs. O’Neal had a home owners’ policy with Nationwide.  As she began to document her losses and provide records to document her claim, Nationwide was investigating the fire.  By April, her claim against Nationwide for replacement of her home and contents was denied.  Nationwide contended that the fire had been intentionally set by a family member in the vicinity of the Christmas tree.

 Mrs. O’Neal was forced to file suit against Nationwide to recover her losses.  An expert fire investigator, Jeff Morrill, re-examined the fire scene on her behalf and found evidence of an electrical event occurring at a receptacle on the wall adjacent to the Christmas tree.  Investigators for the City of Chattanooga and Nationwide Insurance had missed or overlooked a melted copper plug blade in the receptacle and had also failed to realize that the circuit breaker controlling that receptacle had tripped at the time of the fire.  The Plaintiff’s fire investigator concluded that an accidental electrical event started the fire in the Christmas tree. 

During the jury trial, Mr. Morrill explained to the jury that once a Christmas tree starts burning, it can be completely engulfed in flames in a matter of seconds.  High temperatures are reached very quickly and the fire can then flash over to nearby furniture and furnishings.  Within seconds the entire room can be consumed in flames. 

 Despite the evidence of an electrical event at the receptacle adjacent to the Christmas tree, Nationwide continued to contend that the fire was intentionally set by a member of the family.  After hearing all of the evidence, the jury concluded otherwise and returned a verdict for Mrs. O’Neal in the full amount submitted for the house, contents and additional living expenses.  In addition, the jury found that Nationwide had acted in bad faith and awarded an extra 18% as a penalty, and included pre-judgment interest of 10%.

 As a result of this 2009 Christmas tree fire, Norma O’Neal and her family have been without a home for nearly two years.  The favorable jury verdict will enable her to rebuild her home and begin putting her life back together.  O’Neal v. Nationwide was tried before Judge Neal Thomas, Div. IV, Circuit Court of Hamilton County, Tennessee.

APPORTIONMENT OF DAMAGES IN GEORGIA – IMPORTANT CASES INTERPRETING THE 2005 AMENDMENTS TO OCGA § 51-12-33

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In many situations, Georgia’s apportionment of damages statute, O.C.G.A. § 51-12-33, can work to the Plaintiff’s advantage.  Even though the plaintiff may be at fault to some extent, the plaintiff can still recover a substantial portion of his or her damages, as long as he or she is less than 50% at fault.  Where there are there are multiple defendants, even if the jury determines all parties to have been equally at fault, the plaintiff can still recover.  For instance, where there are three defendants, and one plaintiff, if the jury found all four parties to have been 25% at fault, under § 51-12-33, the plaintiff will be entitled to recover 75% of his or her damages.

CAVALIER CONVENIENCE, INC. v. SARVIS, et al., 305 Ga. App. 141 (2010): “In accordance with the legislature’s unambiguous language in OCGA § 51-12-33 (b), we hold that where damages are to be awarded in an action brought against more than one person for injury to person or property — whether or not such damages must be reduced pursuant to OCGA § 51-12-33 (a) — the trier of fact “shall . . . apportion its award of damages among the persons who are liable according to the percentage of fault of each person.”

BAILEY v. ANNISTOWN ROAD BAPTIST CHURCH, INC. et al., 301 Ga. App. 677 (2009): Failure to charge the jury on the provisions of OCGA § 51-12-33(g), that “the plaintiff may not recover if he or she is 50 percent or more responsible for the injury or damages claimed,” was harmful as a matter of law.

Governor Haslam signals intent to keep tort reform law unchanged.

By | General | No Comments
“Republican Gov. Bill Haslam doesn’t intend to rework Tennessee’s new law limiting payouts in successful lawsuits against doctors and other businesses, despite calls from some members of his own party for changes to be made in the upcoming legislative session,” accoring to AP(8/23, Schelzig).  Noting talks “with 100 businesses,” Haslam said the law imposing a $750,000 cap on noneconomic damages has received a positive reception. Rep. Vance Dennis signaled his agreement with Haslam on Monday, saying there were “a handful” of tweaks that could be made. Specifically, Dennis is pushing a bill that will lift the cap in instances where injuries were caused during a felony.  Citing the AP story, the Nashville Business Journal(8/23, Subscription Publication) reported in its “Morning Call” blog that House Speaker Pro Tempore Judd Matheny has called for the cap to “be lowered to between $250,000 and $300,000 to bring the damages in line with limits for state government.” Matheny said, “If it’s good enough for the government, it’s definitely good enough for our citizens.” 
Representative Matheny is referring to the cap on recovery against governmental entities in Tennessee, such as cities and counties and the agencies they operate, including the EPB and Erlanger Hospital in Chattanooga.  He evidently does not understand that the repressive cap limiting the liability of governmental entities in Tennessee is an absolute cap, which includes medical expenses and lost earnings, as well as pain and suffering.  In other words, if a person is severely injured due to the negligence of EPB (Electric Power Board), a city agency, his or her recovery is “capped” at $300,000, even it the medical expenses and/or lost earnings exceed that amount.  The governmental immunity cap does not just apply to pain and suffering – it applies to all damages.   The current law, Tenn. Code Ann. § 29-20-403, is antiquated and extremely unfair.   The cap on recovery against governmental entities should be raised to at least $750,000, not the other way around.

Federal Judge Dismisses Some Spill Suits Against TVA.

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In a story that appeared in several publications, the AP /New York Times (8/4, Subscription Publication, A16) reported, “A federal court further limited lawsuits seeking damages from the Tennessee Valley Authority for its huge spill of toxin-laden coal ash, but the judge ruled that claims related to property damages and reduced property values would to go to trial.” The article noted that “the lawsuits involve a dam collapse that spilled 5.4 million cubic yards of sludge in the Emory River and onto surrounding land in Roane County west of Knoxville on Dec. 22, 2008.” According to the report, “the order, by Judge Thomas Varlan of Federal District Court on Tuesday, granted the TVA’s motion to dismiss claims for personal injury, emotional distress and inverse condemnation.”
In a longer version of the story that appears in the New York Times, the AP (8/4, Poovey) adds, “while TVA since the spill has purchased almost 900 acres for $47 million and signed deals that include owners promising not to sue, hundreds of people who feel they have suffered losses have stakes in the court fight.”

Do You Know What DDEC Stands For?

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What about ECM or PCM? Trucking and other commercial vehicle cases require experience, expertise and resources. DDEC stands for Detroit Diesel Electronic Controls. ECM = electronic control module. PCM = powertrain control module. Such electronic control devices can contain invaluable information about vehicle speed and braking before just before impact, but only if there is a highly qualified expert available to retrieve and interpret the data.  Member:  Association of Plaintiff Interstate Trucking Lawyers of America,

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