Facebook and Personal Injury

"I was just in a car accident today, everything seems fine."

“I am doing really great today. I am almost doing everything I used to do.”

“I am back to work and everything is going great.”

“No real complaints today.”

Facebook and other social networking make it as easy as a cell phone click to communicate with "friends" and family. When something significant occurs in our lives, one of the first things we do is share that thought online. Something as traumatic as a car accident or other injury is sure to get you dozens of "likes." Having someone "like" one of your comments or posts is the cyber-equivalent of a warm fuzzy hug.

These posts should come with a caution. Once a lawsuit is filed, discovery begins. Written formal questions are posed back and forth in the form of interrogatories or "requests for admission." Parties are requested to produce certain documents. Recently I received the following request from two different clients:

"Do you currently, or have you ever, had an account with a social networking website and/or blogging website? (i.e. Facebook, Myspace, LinkedIn, Friendster, Tumblr, Wordpress, Blogger, Blogspot, etc.) _______ If so, please list each and every website with which you have an account as well as your username and/or html for each and every website as well as the date you first signed-up for an account with the website."

"For each and every website listed above, please provide the password associated with the username that you utilize to gain access to your profiles and/or accounts."

There are several other related requests that were also included.

So far, I have refused to provide such private information. Clearly, the purpose for the request is for the Defendant to get access to any statements that have been posted online related to the injury or any corresponding photos. The argument is made that once you post comments or pictures online, the information posted is no longer private or protected by attorney/client privilege. To request passwords and usernames clearly calls for information that goes far beyond information that is relevant to the injury and there are less invasive methods of obtaining that information.


What is and isn't obligated to be disclosed continues to be up for debate. Until the dust settles, the best advice I can give is to keep injury related comments between you and your lawyer.

You will note on the back of my business card, I ask that you "Make all of your social media sites 'private.'" Better advice might be to not put anything at all.

Adam W. Barlow, Esq.
Adam Barlow Law, P.C.
www.adambarlowlaw.com
www.facebook.com/adambarlowlaw
602-688-4529
480-835-5553
480-461-0533 (fax)

Who Do You Have to Pay From Your Settlement?

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Personal injury settlements have become the lifeblood for a number of related industries. Auto body repair locations, chiropractors, rehabilitation facilities, physical therapy, litigation lending institutions, subrogation attorneys and yours truly are just a few.

Obtaining an acceptable offer from the at -fault party, or their corresponding insurance company, is only part of the battle. The next major hurdle is which outstretched hands have a right to funds, and then how much goes to which hand?

When an entity files paperwork with the County alleging an interest in your settlement, what they have done is filed a lien. Sometimes, a lien exists whether paperwork is filed or not; this situation arises when the Arizona State Legislature decides that an entity’s interest is clearly valid, thus creating what is called a “statutory lien.” Week-long seminars are prepared for lawyers helping them understand the ins and outs of lien management and in the end it can still remain very cloudy.

Don’t Get Swindled

If you have health insurance, use it. You pay your health insurance just in case you happen to get injured or sick. If I buy two life insurance policies and I die, I expect my family to recover the fund from EACH policy, not from one or the other. The same is with health insurance. Generally, you pay premiums just in case you have need of a physicians. Just because your injuries came as a result of a car accident should not impact your health insurance’s decision to cover your bills.

I recently had a scenario occur where I had clients that decided to visit a chiropractor they had met at an event. This chiropractor was a preferred provider on the clients’ health insurance. The clients asked the chiropractor whether he accepted their insurance and instructed him to bill the insurance. He agreed. The clients, however, were never asked for a co-pay. Upon release from treatment, we submitted a demand with all their bills and records, the chiropractor included. Unfortunately, we determined that the at-fault party only had state minimum policy and we were able to recover $15,000.00 for each client. About half of that was claimed by the chiropractor. He never billed the clients’ health insurance, improperly filed his County lien, and did not have a statutory right to a lien. However, the clients did sign one of those standard forms that indicates that they are responsible for the fees that are accrued; the same ones that you sign at any doctor’s office.

Because of the limited funds available from the settlement, I asked all the physicians and other lien holders to accept a reduction in order to allow for the clients to walk away at the end with the lions share. All agreed, except the chiropractor. Ultimately, the chiropractor sued my clients for the full funds he believed were owed him.

This chiropractor is the exception. Most reasonable human beings, can look at a situation and agree to reduction of their fees in the interest of expediency and fairness. To avoid this catastrophe from occurring to you, you should remember that if you are not paying your co-pays, there is a good chance they are not billing your insurance. You should stay current with how much your physicians are charging. If you reach a point in your treatment where you are not improving to any recognizable degree, you should seek another opinion.

Adam W. Barlow, Esq.
Adam Barlow Law, P.C.
www.adambarlowlaw.com
www.facebook.com/adambarlowlaw
602-688-4529
480-835-5553
480-461-0533 (fax)

How To Do Your Own Injury Claim

To start, remember this: I know a situation where an individual sought to have his hospital bill reduced. He offered $300 to settle the $900 bill. He was laughed at. The next day, his attorney wrote a letter offering the same $300. It was accepted hours later.

A personal injury claim should not be viewed as a way to fleece the system or to "strike it rich." It is the best mechanism we we have in our social community to make a unfortunate circumstance "right." However, you have to remember that reasonable minds can disagree as to what it might take to make the situation "right." There is also the fact that the entity generally paying the settlement (the insurance company) has a bottom line to consider. If they can pay you less that what a "fair" settlement would be, then the bottom line looks much better. Therefore, just because an adjuster tells you your case is worth $800.00, you should be cautious and know that you have options.

Should you choose to go about the matter on your own, I am providing a few helpful guidelines to consider.

1. Before you are in an accident make sure you have good insurance for your circumstance. State minimum coverage is almost never adequate. Uninsured coverage and Underinsured coverage is a must. (see my article Selecting Car Insurance in Arizona).
2. Just after the accident, follow the guidelines in my article What Do I Do If I Am In An Accident? But remember to get the names and contact information from witnesses, take good quality photographs of the vehicles and the injuries, have the police write a report, make sure you have the at-fault party's insurance information, and most important, make sure you properly and adequately care for your injuries.
3. Open a claim. This can often be a tricky situation. The very beginning part of a claim can all happen in a whirlwind. You will be receiving calls from several different adjusters from different departments within the same insurance company or from different insurance companies altogether. Familiarize yourself with who each insurance company represents. They will all generally seem very nice if they are doing their job properly. Anything you say or do at this point will often have an impact on the future of your claim. "You said that you felt 'fine' and now you say that your hip is sore?" If you were not at fault at all, there is no harm in opening a claim with your own insurance company. In fact, it will often be advisable because they are easier to work with regarding property damage. Your rates cannot legally increase unless you had some fault in the accident.
4. Understand that your property claim (damage to your vehicle or belongings) will be handled separately from your injury claim. To keep yourself organized, you will want to keep separate folders for paperwork etc. for each. Often the insurance company will assign a different adjuster for each type of claim. This can get very confusing very fast.
5. To proceed with your property claim, an adjuster will come to your home, work or elsewhere and do an inspection of your vehicle and make you an offer accordingly. Rather than taken their word for it, you should have a body shop that you trust perform an independent evaluation of the cost of repairs using good parts and quality work. You should also consider a "loss of use" claim that generally manifests itself in the cost of a car rental for the reasonable time that you have been without a car. If your car is totaled, and it takes that adjuster 3 weeks to determine that it is totaled, you should receive the value of a car rental for the 3 weeks it took them to decide plus another week to 10 days to give you adequate time to look for a new vehicle. Whether you actually rent a car or borrow one from a friend or family member is irrelevant. If you have a rather new car that was not totaled but sustained significant damage, your vehicle will have lost some value. Afterall, when you request a carfax report on a used car, one of the factors that are listed are whether or not that vehicle has been involved in an accident. That will obviously affect the future value of the car. This is called diminution in value. You are entitled to that amount, whatever it might be (there are experts for that kind of thing, but a used car dealer might be a good place to start to get that figure).
6. Injury claim. Very early after the accident, usually not more than a week, someone from the other insurance company will call and ask how you are. What they would like to know is "how injured you are." It is your goal to be restored to pre-accident health. Consult your doctor, if you have one, and try to figure out a treatment plan that will reach that goal. If you are on a treatment plan that does not seem to be working, then you should be very honest and clear with your physician that the treatment does not seem to be helping and seek alternate or additional treatment. You should have EVERY physician bill your health insurance. Some will insist on a lien and try to convince you that it is better than using your health insurance. The adjuster will ask you to sign a medical authorization that will allow them to gather your records as they become available. This will allow the adjuster to see exactly the treatment you are receiving and, worse, what services you received were paid by insurance. Rather than sign this authorization, you should get all the treatment you need, then when you have reached pre-accident health, request all your bills and records, and send them all at once to the adjuster.
7. Demand. Together with the bills and records, you should demand a certain number. That number will have everything to do with the status of your current health (are you 100% or something less), the size of the bills, the type of injuries sustained, lost wages, and the overall impact on your life. Each case will clearly be different. There is no magical formula used to calculate a "fair" demand or offer.

In the end, there are a lot of moving parts.

Should you find that it is too much to deal with, call me for a consult.

Adam W. Barlow, Esq.
Adam Barlow Law, P.C.
www.adambarlowlaw.com
www.facebook.com/adambarlowlaw
602-688-4529
480-835-5553
480-461-0533 (fax)

Was the Coffee Really Too Hot?

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As an injury attorney, all too often I am confronted by friends, clients and others with the skepticism of “that lady who got $10 Million from McDonalds because her coffee was too hot.” As a Seinfeld fan, I am reminded about the episode where Kramer suffered a similar fate when he spilled a latte on his lap while trying to sneak it in to a movie theater. The Seinfeld writers made a mockery of the now infamous McDonald’s Coffee case through their portrayal of the character Jackie Chiles who served as Kramer’s attorney against the latte company. (Kramer was not able to settle for “millions” to Mr. Chile’s dismay, but he was successful in obtaining a lifetime supply of lattes even though a balm he applied had healed all the wounds).

In the McDonald’s case, a 79 year-old woman (Mrs. Liebeck) burned herself with a $0.49 cup of hot McDonald’s coffee. She had taken the lid off the cup to add cream and sugar after buying the coffee at the drive-through window in Arizona. The cup slipped and scalding hot coffee fell into her lap. A jury awarded Mrs Liebeck. about $3 million, largely consisting of punitive damages. The damages were subsequently reduced by a judge and the case later settled out of court. The dispute launched Mrs. Liebeck and the case into the national spotlight far beyond Jackie Chiles and Kramer, as a symbol of a severely flawed tort system. McDonalds and other similarly situation large corporations, used the case as poster child for legislation capping damages and further limiting personal injury cases.

But few really understood (and continue to misunderstand) the facts of the case.

The jury heard evidence that McDonald’s knew that their newly designed coffee machines would produce coffee that was “unfit for human consumption” at the time the coffee was brewed, but the company did nothing to make sure that employees waited the appropriate cooling off time before serving it. The machines were designed to produce a coffee temperature that was so hot that it would remain hot by the time the customer arrived to work. McDonald’s instructed its workers to brew the coffee at 195-200 degrees Fahrenheit and serve the coffee at a temperature of over 180 degrees Fahrenheit. Traditionally, “hot coffee” is served at around 160 degrees Fahrenheit. An expert at the trial testifying on behalf of Mrs. Liebeck explained that lowering the serving temperature to about 160 degrees could make a big difference, because it takes less than three seconds to produce a third-degree burn at 190 degrees, about 12 to 15 seconds at 180 degrees and about 20 seconds at 160 degrees.

The jury saw graphic photographs of the devastating injuries the scalding coffee caused to Ms. Liebeck. She needed several surgeries including skin grafts to her inner thigh and vagina wall.

It should also be noted that the jury found that that Ms. Liebeck was 20% responsible for the way she handled the cup, so it did not leave her off the hook for part of the blame. It awarded her $200,000 in compensatory damages, which frankly is not a huge amount for the injuries she sustained. I am unsure what the total value of her bills were as a result of the burns, grafting, etc., but $200,000.00 does not seem otherworldly to me.

As the jury went on to consider punitive damages, it had to consider what amount of money would be sufficient to punish McDonald’s for ignoring the safety of their consumers. What amount of “punishment” would cause them to alter their business practice? After all, they consciously and intentionally served their product at a temperature that they knew was too hot for consumption. McDonalds assumed that risk by exposing drive through customers to the potential harm. McDonald’s executives at trial came off as very callous and seemed to downplay the seriousness of the injuries. Evidence showed that in the past decade before the trial, McDonald’s had received more than 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000. At trial, Ms. Liebeck testified that she offered to settle this case shortly after the incident had occurred if McDonalds would have paid her medical bills. Christopher Appleton, a McDonald’s quality assurance executive, testified that McDonald’s knew its coffee sometimes caused serious burns, but had not consulted burn experts about it, and that despite their knowledge, McDonalds had decided not to warn customers about the possibility of severe burns. He was confronted with testimony from an earlier case, where he said he was “aware of the risk [of injury] but had no plans to turn down the heat.” Finally, he testified that McDonald’s did not intend to change any of its coffee policies or procedures, saying, “There are more serious dangers in restaurants.” As a result, the jury decided to award $2.6 Million in punitive damages, because they heard proof that McDonald’s sold $1.3 million of coffee every day and knew that 2 days of coffee sales would send a message but hardly bankrupt the company.

Adam W. Barlow, Esq.
Adam Barlow Law, P.C.
www.adambarlowlaw.com
www.facebook.com/adambarlowlaw
602-688-4529
480-835-5553
480-461-0533

Selecting Car Insurance in Arizona

Arizona, like some states, requires $15,000.00 per person/$30,000.00 per accident liability insurance ($10,000.00 for property damage). This is often referred to as "the state minimum." This means that if you cause an accident, the maximum amount that the person who was injured due to your negligence would be able to recover from your insurance company would be $15,000.00 for their injuries. If there were 3 or more people in the car, the most that all individuals combined could recover is $30,000.00. Because of the speed, size and number of vehicles on the road, it often results that individuals injured in car accidents sustain injuries far above the state minimum required coverage. At that point, you become personally liable for the remainder. If you have any assets (a home, cars, savings/checking accounts, etc.), state minimum coverage is NOT for you.

I recently spoke with a large insurance company to get price estimates on the cost to increase insurance coverage and additional estimates to add important additional coverage that should be added by most drivers. Note that these estimates are for an adult with no health reservations and a good driving record with an existing policy of $100,000.00/$300,000.00 ($100k per person and $300k per accident).

Uninsured and Under Insured Coverage

Uninsured (UM) and Under Insured (UIM) insurance covers you in the event that a person who causes a car accident in which you are injured has little or no liability insurance. UIM insurance is design to take the place or "step into the shoes" of the at-fault person who had no insurance or not enough insurance. Because the state minimum is only $15,000.00 per person, it is often the case that your injuries are going to exceed $15,000.00. Further, it would be a mistake to assume that the at-fault person has enough money in the bank or assets to make up the difference. As of 2006, more than 1 in 5 drivers in Arizona were driving Uninsured. How many "insured" drivers are driving Under Insured? It is a risky proposition each and every time that we get behind the wheel.

To add UIM/UM coverage to a $100,000.00/$300.000.00 policy described above, I was given the quote of $9.50 per month. This would allow for me to have an additional $100,000.00 for my own injuries above and beyond the at fault party's insurance.

Medical Payments Coverage

Medical Payments (Med Pay) coverage is a provision available on auto insurance policies that allows for payment of "reasonable" medical expenses caused as a result of a car accident. Most Med Pay provisions allow for coverage in increments of $5,000.00. In Arizona, the Med Pay coverage is particularly enticing. Many states require that if you obtain a personal injury settlement related to your car accident, then you must pay back the Medical Payment coverage to your auto insurance. In Arizona, that is not the case. By statute, Arizona has determined that the first $5,000.00 does not have to be reimbursed to the auto insurance company.

To add $5,000.00 of Med Pay to the policy discussed above, I was given the quote of approximately $6.00/month.

Increase Your CoverageIncreasing your auto insurance coverage can also be a very reasonable thing to do. For example, to increase your coverage from $100,000.00/$300,000.00 to $250,000.00/$500,000.00 was approximately $6.00/month.

Navigating the insurance waters after your car accident is something I do everyday.

Adam W. Barlow, Esq.
Adam Barlow Law, P.C.
www.adambarlowlaw.com
www.facebook.com/adambarlowlaw
602-688-4529
480-835-5553
480-461-0533