I constantly hear, even from jurors, that we are a “litigious society,” that everyone sues over everything these days. Assuming this is true, who is to blame? Critics immediately place the blame at the feet of the injured plaintiffs who must bring the lawsuit for compensation for the injuries they have suffered that were caused by someone’s carelessness. If those darn hurt people who can’t work any longer because of their injuries would just not file a lawsuit we wouldn’t be a litigious society!! The nerve of these people! Getting injured through no fault of their own and then expecting compensation for the medical bills, lost wages, pain, inconvenience, inability to work, permanent scarring, loss of their normal quality of life, etc., from the person who caused it all. The gall! Can you believe these people?
Yes. Yes, I can. I believe these people because these are the people I represent every single day. These are the people who began their day with their normal routine like every other person but who, unfortunately, came into the path of someone who was careless, someone who wasn’t paying attention to the road, someone who was texting while driving, someone who was reckless and causes an upheaval in the life of someone else due to their negligence and carelessness.
But don’t blame these injured folks. Blame the insurance companies of the careless individuals, because it is the car insurance companies who take the stance “so sue me” and invite litigation that easily could have been avoided had they simply been reasonable in negotiating an insurance claim for personal injury.
It seems that the issue of forced arbitration clauses in contracts seems to be increasingly in the public conversation, given the debacle of Wells Fargo creating fake accounts by employees to achieve performance bonuses without their customers’s even knowing about it. Unbelievably, Wells Fargo is attempting to rely on forced arbitration clauses in the fake contracts for the fake bank accounts they fraudulently created to avoid being held accountable by a real jury. It’s really hard to believe Wells Fargo’s lawyer would even agree to submit such a position to the court with a straight face and an unburdened conscience. But they are. At least maybe the Wells Fargo fiasco is bringing to light this attempt by many corporations to take away a person’s Constitutional right to a jury trial to resolve a dispute before a dispute even arises and force the aggrieved person to have the dispute heard by a panel of arbiters (often picked by the corporation). They know they stand to fare much better before an arbitration panel than a jury of 12 American citizens, the greatest dispenser of Justice ever conceived by man.
I have written before about the “gotcha” tactics of nursing homes in attempting to steal a resident’s right to a jury trial. I have fought off several attempts on behalf of clients in nursing home malpractice lawsuits. An interesting opinion from the Georgia Court of Appeals recently was issued that deals with an embedded arbitration clause in nursing home admission papers, which, once the resident’s family members sued the nursing home for malpractice in causing the death of their family member, the nursing home asserted to the court as eliminating their right to have a jury hear their case. Gotcha!! This case is Kindred Nursing Centers v. Chrzanowski, 338 Ga.App. 708 (2016) and the facts of the case confirm the nursing home’s attempt at Gotcha! The plaintiff’s mother was admitted on December 4, 2016 to Kindred Nursing Center in Marietta for rehabilitation following surgery for a broken ankle during a fall. Ms. Chrzanowski’s medical records showed she suffered from several chronic medical conditions and also cognitive impairment. According to the appellate record “[i]n the month before her fall, Jeanne went to the emergency room twice within a few days, and reported feeling “loopy” and out of sorts, with some memory loss. The second time she went, she had no recollection of her prior visit just 48 hours earlier. A neurological consult identified an altered mental state, with mild cognitive impairment, depression, and some amnesia. Kindred Nursing Centers Ltd. P’ship v. Chrzanowski, 338 Ga. App. 708, 709, 791 S.E.2d 601, 602 (2016). Two days before Jeanne signed the ADR Agreement, occupational therapy evaluated Jeanne and reported that she was confused, even though she was able to participate in establishing her plan of care. In weekly progress notes from December 5 through December 12, occupational therapy reported that Jeanne was very anxious and confused, commenting to staff, “look at the walls, they are coming out.” In addition, a speech pathologist evaluated Jeanne on December 7 and found that she was severely impaired in understanding yes and no questions; moderately impaired in concentration, understanding sentences, and conversation; and moderately to severely impaired in memory, reasoning, and judgment. That same day, a dietitian performed a nutrition therapy assessment and found Jeanne was very confused and could not remember if she had eaten breakfast. Another assessment determined that Jeanne was at risk for falls due to weakness, medications, confusion, and forgetfulness. Ms. Chrzanowski signed the admission papers on December 7, 2011, which contained the embedded, hidden arbitration clause. On April 25, 2012 Ms. Chrzanowski died in the nursing home after suffering several other falls and hospitalizations. Her family then sued in court for malpractice.
In response to the suit, the nursing home filed a motion with the trial court to enforce the arbitration agreement that was in the admission papers signed by Ms. Chrzanowski while she was obviously suffering from dementia and cognitive impairment. Does that even sound fair to you? I hope not. The trial court denied the nursing home’s motion to compel arbitration and the nursing home appealed. The Georgia Court of Appeals reversed and remanded, not on the merits of the case but on the basis the trial court had applied the wrong standard in making its decision. So now the case is back in the breast of the trial court who must apply a different standard in making its decision on whether to compel arbitration and allow the nursing home to steal the Chrzanowski’s Constitutional right to a jury trial.
Two fairly interesting court opinions were issued this week, one by a trial court judge in a bench trial, and the other from the Georgia Court of Appeals, both of which place a dollar value on the life of someone and both of which are, strikingly, very close to each other in amounts. I thought it would be interesting to take a look at them, as the value of a life is something I ponder quite often as a trial lawyer, and it is something I often have to ask juries to do in wrongful death trials. I am currently gearing up for the trial involving the wrongful death of a 23 year old young woman who was a kindergarten teacher in Gwinnett County. The trial will be taking place in Fulton State Court. So the value of a life is at the forefront of my thought these days. Let’s take a look at the wrongful death cases from this week.
The first case involves the wrongful death of Bobbi Kristina Brown, daughter of Bobbi Brown and Whitney Houston. I am sure you are familiar with the incident surrounding her death. It was a tragic case. This week, Judge Jackson Bedford of the Superior Court of Fulton County, issued an award of $36 Million for the full value of the life of Bobbi Kristina. You may recall that, like her mother, Bobbi Kristina was found face down in a bathtub full of water. She survived on life support systems in a hospital for several months. The award was made against her life-partner, Nick Gordon. Mr. Gordon was not present at the trial of this case and it appears he may have been in default in the civil suit, meaning he never filed an answer to the lawsuit which would entitle the plaintiff to a trial on damages only, which is, apparently, what occurred. The young woman’s family blamed Gordon, accusing him in the lawsuit of giving Brown a “toxic cocktail” before putting her face-down in the water. Gordon, an orphan three years older whom Houston had raised as her own, has not been charged with a crime. Brown had referred to Gordon as her husband. Investigators with the medical examiner’s office were unable to determine exactly how Brown had died. An autopsy showed she had morphine, cocaine, alcohol and prescription drugs in her body. But the medical examiner couldn’t determine if she killed herself, if someone else killed her or if her death was accidental. Regardless of the amount of the award, it is unlikely that the Brown Family will ever collect a penny of it from Mr. Gordon. It is my understanding that he has no personal assets and could always file bankruptcy against the award. It is important, however, to note that a very seasoned trial judge, Judge Bedford, when faced with placing a dollar value on the life of a person, deemed $36 Million an appropriate number. Judge Bedford has presided over many wrongful death trials and is well versed in the law of wrongful death and what factors go into that decision of what is the value of life from the deceased’s point of view. Interestingly, under Georgia law, when determining the value of a life for wrongful death purposes, the jury is instructed they must value the life from the deceased’s point of view, meaning did the person who died value his or her life? The only “tool” the jury is to use to help them with this endeavor is their “enlightened conscience.” What was his life worth to him? What was her life worth to her? Judge Bedford decided $36 Million was the value of the life of Bobbi Kristini Bown. That may seem like a lot of money, but ask yourself this: If it was your daughter who had died, have they printed enough money to compensate for the loss of her? Name a dollar figure you believe adequately reflects the full value of the life of one of your children. It’s hard to think about, isn’t it. Now put yourself in the jurors’ shoes.
The second case this week involves the wrongful death of a little boy, Remington Walden, who burned to death in a fiery car crash when he was a passenger in a 1999 Chrysler Jeep Grand Cherokee. Two amazing trial lawyers, a father and son team, Jim Butler and his son, Jeb Butler, tried this wrongful death back in April 2015 in Decatur County (Bainbridge) Georgia. The plaintiffs alleged the 1999 Chrysler Jeep was defective due to the placement of its fuel tank in the rear of the Jeep, making a fuel-fed fire highly likely in a rear-end collision, which is what happened in this case. Unlike the Bobbi Kristina trial, which was a trial in front of a judge who decided the case, this was a good old-fashioned jury trial. The Decatur County jury found for the plaintiffs in the amount of $120 Million. That’s right…$120 Million. The trial judge then reduced or “remitted” the verdict, which is a power the trial court has, in lieu of a new trial. The trial judge reduced the $120 Million verdict to $40 Million , which the plaintiffs’ accepted. Chrysler did not, however, and appealed even the reduced verdict to the Georgia Court of Appeals. Well, the Georgia Court of Appeals this week affirmed the trial court, meaning it agreed with the trial court’s decision to reduce the verdict to $40 Million. Chrysler lost their appeal but has vowed to consider its options to appeal to the Georgia Supreme Court. I’ll be watching for that appeal. There was evidence in the trial that Remy, the little boy, burned alive for 60 seconds. It may seem that the jury thought $2 Million for every second of burning alive was appropriate. Who could argue with that? Who could even argue with $40 Million for that kind of death? Chrysler, I suppose. Chrysler still refuses to accept any responsibility for their defective product and refuses to accept any responsibility for the death of Remy Walden. Contrary to the Bobbi Kristina verdict, the plaintiffs stand to collect every penny of this verdict, plus interest, assuming it is affirmed on appeal by the Georgia Supreme Court.
Friends: I have to confess, I back slid recently and agreed to mediation of a client’s case. I had not agreed to a mediation of my clients’s cases in several years, primarily because of a sense that mediation generally was not successful and perhaps was even counterproductive, pushing the opposing parties even further into their corners as positions became entrenched due to ridiculous positions taken during mediation, all through the implicit stamp of approval of a rather expensive mediator (who, by the way, gets paid regardless of whether he or she is successful in resolving the case). I regret allowing my client to agree to mediate his case. And again, I have made my pact with myself not to make that mistake again. Here is a short list (certainly not exhaustive) of reasons why I have fallen out with mediation of personal injury cases.
- Defense counsel get away with childish, immature positions and remarks. I had a case once in which the insurance carrier wanted to try to settle prior to my filing a lawsuit. I gave them a dollar amount to do just that. They refused. They took the “so sue me” attitude. So I accommodated them and sued their insured. After two years of litigation, when the insurance carrier is in the corner because of the egregious facts that I have now exposed during discovery, I make a new demand reflecting the increase in value of the case in the last two years. Defense lawyers and the insurance adjuster say they “are hurt” by the increase and take away their initial offer in bad faith at medication. Did I not tell them that their best opportunity to settle the case was before I filed suit and litigated the case for years, and that in so doing, their case would only get worse?
- Defense counsel approach me to mediate, saying “they really want to get the case resolved.” So I agree to mediation. My clients take a day off from their jobs. We are paying a mediator. Insurance adjuster offers at mediation only what was already on the table BEFORE mediation and says that’s it, take it or leave it. That’s one of the most UNprofessional things I can even imagine, yet it happens. A simple phone call to me would have sufficed. Yet they put my client through the stress and expectation that maybe finally, after two years of duking it out, they have come to their senses and want to resolve the case for what is only fair. Nope.
The news, even for the most jaded of us, was shocking: Wells Fargo employees had created thousands of fraudulent bank accounts in their own customers’ names, without their customers’ permission or knowledge, so that employees could receive bonuses for opening a certain number of new accounts. These unscrupulous employees would take money out of their customer’s legitimate accounts and put them in the newly created fraudulent accounts. If this caused a legitimate account to experience an overdraft, the Wells Fargo customer would be responsible for paying the normal fine for an overdraft. This really happened. And, so far, no one has been indicted and no one is going to prison for it. Kudos to Senator Elizabeth Warren for suggesting that, but I wouldn’t count on it happening. And according to CNN, Wells Fargo may be the tip of the iceberg for banking fraud.
The question that is foremost in my mind now is whether Wells Fargo customers will get their day in court? That’s a big question mark. Why? Because the self-dealing of Wells Fargo includes inserting an arbitration clause in their banking agreements that essentially says if any dispute arises, the customer agrees it will be decided by arbitration. This clause, found in all types of consumer contracts, including credit card agreements and nursing home admissions, is the same as forcing a customer to waive their 7th Amendment Constitutional rights to a jury trial. Yet, a constitutional right cannot be unknowingly waived. Waiver must be knowing and intentional for it to be valid. I am willing to bet that none of the Wells Fargo customers knew they were waiving their right to a jury trial when they became customers of Wells Fargo. I doubt they were told about it, I doubt they read any of the small print legal agreement they had to sign to open an account there and I doubt any of them had any knowing understanding or appreciation for what they were signing. In fact, with “e-signatures” now on documents sent to us by email, it is highly unlikely that anyone reads anything now. But lawyers for Wells Fargo have promptly raised this issue as a possible defense to any lawsuits filed against it for its fraud. They may attempt to use an arbitration clause from when the customer opened a legitimate account to defend against lawsuits brought for the opening of fraudulent accounts. Seems like that, alone, should be against the law. This is particularly insulting when Wells Fargo executives took home millions of dollars in bonuses while defrauding their customers. Huh?
People are fighting back. The Wells Fargo incident simply brings to light the practice of forcing arbitration on consumers in a variety of transactions without the customers knowing anything about it. The American Association of Justice (“AAJ”) is fighting back. Likewise, the Consumer Financial Protection Bureau is working on a rule that would restore your rights in situations where you unwittingly signed an arbitration clause. If you are the victim of banking fraud, you can submit a complaint to the CFPB. “Take Justice Back” is a grassroots campaign of AAJ that seeks to restore accountability and ensure American consumers have access to justice in the commercial transactions. Consumers have to keep fighting the good fight on this issue. That good fight starts with being aware of forced arbitration clauses. Check the fine print in any agreement you enter. You will likely find an arbitration clause in there somewhere. Cross it out, intial that, and THEN sign the agreement. I once did this on surgery consent forms when my daughter was having knee surgery. I thought for sure they were going to call me up to the desk and tell me they couldn’t perform my daughter’s surgery because I had not signed their agreement to arbitrate. But, no, they never called me up to the desk and her surgery went on without a hitch. Take back your power and don’t be bullied by corporations. Don’t sign these arbitration agreements.
Does your own insurance company owe you a duty? The simple answer is “yes, of course.” But for any of you who read my blog, you know when dealing with an insurance company nothing is ever simple and you should never assume your own insurance carrier “is on your side.”
I just recently settled a case for my clients for the maximum insurance policy limits of the at-fault driver, even though my clients’ injuries were so severe I am confident a jury would have returned a verdict in their favor well in excess of the insurance limits. Let me explain the situation. This case involved a car wreck in which a young driver turned left in front of my clients at an intersection early in the morning. My clients had a green light and were going straight through the intersection. The young driver stated to the police officer he “didn’t see them” before he turned and my clients could not stop their vehicle to avoid the other car that suddenly was directly in front of them as they attempted to travel through the intersection on a green light. Both of my clients suffered severe personal injuries and were hospitalized as a result.
Now a reasonable person at this point would be thinking the driver making the left turn was at fault and his insurance company should pay my clients’ bills, right? Well, in the words of Coach Lee Corso, “Not so fast!” The insurance carrier for the driver who turned left in front of my clients at first claimed their driver was not liable! The insurance carrier was not going to pay a dime! That’s when I get involved. After some discussion about the fact that their insured, the young driver, had violated the Rules of the Road by failure to yield the right-of-way to my clients, the insurance company then asserted it’s second position, i.e., my client, who was driving the car, was contributorily negligent by speeding and so it would not be willing to pay anything for his claim, but since his wife, who was a front-seat passenger, cannot be legally contributorily negligent, they would be willing to pay her something for her trouble, but not the policy limits. The absurd position of the insurance company forced me to file suit. In fact, you can say the insurance company actually invited the litigation, taking the “so sue me” attitude, and I obliged them. I am sure they didn’t consult their own insured about how he wanted the claim handled. I had to hire an expert accident reconstruction, which is expensive. Neither car had a “black box” that would prove my client was not speeding at the time of the wreck, so my accident reconstructionist performed a signals analysis that proved the defendant could not have possibly had a green left-turn arrow and could not possibly have had the right-of-way at the time he turned left in front of my clients. Then the insurance company’s lawyer took the depositions of my clients. Their undisputed testimony left no room for doubt that they had the right of way and the defendant was at fault. Following their depositions, I made a settlement demand on the insurance carrier for the insurance limits of their insured. I gave the insurance company 30 days to respond to the demand, and if they did not pay policy limits, the demand would be withdrawn and we would proceed to trial.
Do you believe that “Like a good neighbor, State Farm is there?” I have previously presented plenty of evidence that the answer to that question of whether State Farm is like a good neighbor is a resounding “no.” If you recall, in my case Eells v. State Farm, State Farm did everything it could possibly do within the bounds of the law (but outside the bounds of moral and ethical decency) to prevent its own policyholder from collecting on an uninsured motorist claim after the policyholder had paid premiums to State Farm for over 40 years. I blogged about that case, which went all the way to the Georgia Court of Appeals, where we prevailed, before it was resolved. The bottom line is that State Farm will do nearly anything to avoid paying legitimate personal injury claims, including forcing its insureds to endure a trial and potential personal exposure, rather than settle a clear liability suit prior to trial.
My son, a great lover of the sport of basketball, likes to say “The ball don’t lie.” Well, the two cases I am going to tell you about involving State Farm clearly share the theme of “the ball don’t lie,” meaning the truth ultimately comes out. Two recent trials in Georgia have placed the litigious policies of State Farm in the spotlight. The first trial was tried last month by James Robson and Robert Glass in Cobb County. The jury returned a verdict in favor of the plaintiff for $850,000.00 after just two and a half hours of deliberation. The at-fault driver, insured by State Farm, had only $100,000.00 in liability coverage. The plaintiff’s attorneys demanded the $100,000.00 to settle the case prior to trial, even though the plaintiff’s medical bills from her injuries were nearly $170,000.00. This means any verdict for the plaintiff would be very likely to be in excess of $170,000.00. State Farm had the opportunity (and the contractual duty) to resolve the case prior to trial for the demanded policy limits of $100,000.00. The plaintiff’s attorneys gave State Farm and extension of time to decide to pay the policy limits and even had the plaintiff’s treating physician speak by telephone to the State Farm adjuster confirming for her the plaintiff required neck surgery from the car wreck. But did State Farm do the right thing? No. State offered only $22,500.00 to settle the case, even after admitting their insured was at fault in causing the wreck. The jury returned what is known as an “excess verdict,” i.e., over the policy limits, and because State Farm had the clear chance to resolve the case for policy limits, will be on the hook to pay the entire verdict. You have often heard of “frivolous lawsuits” in the media but you seldom hear of “frivolous defenses.” This case was certainly one of them.
Another was in a case tried last week in Bartow County by my good friends and fellow trial lawyers Morgan Akin and Lester Tate of Akin & Tate in Cartersville. In that case, the plaintiff pulled into a roadway after stopping at a stop sign and was struck directly in the rear by a teenage driver. The investigating Georgia State Trooper measured 229 feet of skid marks left by the teenage driver as he tried to stop before rear-ending the plaintiff’s vehicle. The State Trooper found teen driver at fault. Mom of teen driver then went to State Trooper’s supervisor with photos maintaining the plaintiff just pulled out in front of him. Ultimately, the State Trooper relented and amended the accident report changing fault to that of the Plaintiff. The Plaintiff had shoulder surgery and $90,000.00 in medical bills. State Farm took up the mom’s torch, denied all liability and hired an expert who simply ignored the skid marks. The plaintiff’s expert accident reconstructionist, Herman Hill, testified that not only did the teenage driver hit the plaintiff in the rear but was going 75 MPH+ at the time of the collision based on the amount of skid marks left by her car’s tires during braking. State Farm doubled down by asserting a counter claim. The Plaintiff made a settlement demand of 100K policy limits initially and then after extensive litigation made a settlement demand of $275,000.00 prior to trial. State Farm never made an offer. The jury returned a verdict of $300,000.00. And because State Farm had the opportunity to resolve this case within the policy limits of $100,000.00 but declined to do so, State Farm will be on the hook for the entire verdict. Can you imagine being rear-ended by a teenage driver going 75 m.p.h. and then the teenage driver tries to blame you for it?
Two interesting but diametrically opposed cases came out last month dealing with deaths of prisoners in Georgia jails. One came out in favor of the prisoner who was killed. The other came out in favor of the police department. Why? I thought it would be interesting to take a look and compare the two.
Jail deaths occur rather frequently. As I discuss “jail deaths” in this blog I am excluding death by natural causes, e.g., disease or old age and I am excluding for now wrongful death of an inmate caused by inadequate medical care in prison (which also is very frequent). I am referring to jail death proximately caused by another person, whether that other person is another inmate or a custodial officer. The nationwide average of jail deaths is 983. The annual average of jail deaths in Georgia is 46. Some of these deaths account for an increased fervor across the nation for criminal justice reform.
But how do the courts treat wrongful jail deaths? Two Georgia cases show a large disparity in court treatment even in the face of what are clearly egregious facts. It is notoriously difficult to sue successfully a prison warden or any state deputies, sheriffs or police officers for their conduct related to the death of an inmate. These suits are frequently brought but infrequently won. Why? Because the burden of proof for the family or estate administrator who would bring a wrongful death suit on behalf of a prisoner killed while incarcerated is astronomically high. So high it is seldom met. A plaintiff in a prisoner death case must allege violation of the prisoner’s 8th Amendment Constitutional rights, which is the Amendment that prevents the government from enacting cruel and unusual punishment on a prisoner. Beyond just restraining prison officials from inflicting “cruel and unusual punishments” upon inmates, the 8th Amendment also imposes duties on these officials to take reasonable measures to guarantee the safety of the inmates. But plaintiffs must show the prison officials acted with “deliberate indifference” to the prisoner’s constitutional rights, which is a pretty high mark to meet. It is just slightly shy of intentional conduct. “Deliberate indifference” in the context of a failure to prevent harm has a subjective and an objective component, i.e., the plaintiff must prove the prison official actually knew an inmate faced a substantial risk of harm and that the defendant disregarded that known risk by failing to respond to it in an objectively reasonable manner.
The tragic news from Disney World in Orlando, Florida this week of a toddler being carried away and killed by an alligator in a lagoon on Disney property has sent waves of terror in every parent whose child has ever waded into any water other than a swimming pool. My family made many trips to Disney World when my children were young and water is everywhere around the property. It is my understanding that at this particular lagoon at The Grand Floridian Hotel there were “No Swimming” signs posted near the water. Yet the photos I have seen show chaise lounge chairs on a sandy beach in front of the lagoon. The beach was, apparently, man made by Disney for the enjoyment of their guests and Disney put the chaise lounge chairs on the beach looking directly to the lagoon. What is the message being sent by Disney? Come sit in these lounge chairs and enjoy the beach and the water? Doesn’t the placement of the chairs there and the placement of the sand there act as an invitation to wade in the water?
Disney is now, apparently, placing warning signs there now, along the lines of “Beware of Alligators.” Is this too little, too late? What is the duty Disney owed to its paying guests to warn them of alligators or to make sure they could not be harmed by alligators while their paying guests are staying at their hotels?
This incident brought to mind a similar tragedy that occurred not too long ago in Georgia, when a senior citizen was, ostensibly, grabbed by an alligator, carried away and killed while she was staying with her children at their home which was on a golf course. This case was litigated and, ultimately, decided by the Supreme Court of Georgia. The case is Landings Association v. Williams and was decided in 2012. The relevant facts, as discussed in the Court’s opinion are as follows: Williams, the victim, was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.