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Ethical Law Firm Marketing?

Michael Phelan — Mon, 30 Nov 2009 10:51:49 GMT

The endless quest to improve search engine optimization may have landed one Wisconsin personal injury firm in hot water. Wisconsin’s largest personal injury law firm, Habush, Habush & Rottier, is suing another firm, Cannon & Dunphy alleging that Cannon has been hijacking Habush's name in Google searches. The suit claims that Cannon is paying Google and other search engines to direct people who search for Habush to the Cannon website. The suit says consumers could be confused when their search for the Habush law firm turns up a competitor. "Defendants' obtaining and using the keywords 'Habush' and 'Rottier' is an intentional and illegal effort to trade on the hard-earned names, personal reputations and good will" of the plaintiffs, the suit claims.

If these allegations are true, I hope the Habush firm prevails. Aside from the privacy right and consumer law implications, the alleged hijacking seems, in my opinion, to be plain wrong and unethical. I cannot imaging making the decision to try or allowing a SEO marketing company I hired to try to divert consumers searching for a competitor firm to my website. Aside from the obvious appearance of an impropriety, and the concern about false and misleading information, the activity is just wrong. I'm sure most lawyers know this and would never undertake such Rambo marketing tactics.

In fairness to Cannon & Dunphy, its name partner Patrick Dunphy said he thought a marketer made arrangements with search engines, and that his firm never requested that Habush and Rottier keywords bring up his firm in search results. On the other hand, Dunphy does not concede that there is anything wrong with the alleged diversionary tactic. If Dunphy's professed ingorance is true, I believe C &D should have instructed their marketer to stop the practice as soon as they learned about it.

Originally posted at InjuryBoard by Michael Phelan

NFL Concussion Policy: a Very Slow Work in Progress

Michael Phelan — Tue, 24 Nov 2009 14:36:43 GMT

With every new round of concussions in the NFL, it seems to me that the press and the NFL react as if dangerous concussions were a new issue in football. The multitude of stories about the brain damage, alzheimers-like symptoms, memory loss, depression, and suicidal behavior of former players like Andre Waters, Mike Webster, Tim Johnson and others get swept under the carpet as the NFL takes its predictable stance of delay and double talk on the issue of brain injuries. And, with the exception of the New York Times series on brain injuries in the NFL, the sports media typically looks the other way. Until now. Sports Illustrated's Ann Killion has written a piece in her Inside the NFL column accusing Commissioner Roger Goodell of business as usual just as he announced a new policy requiring teams to consult with independent neurologists following a concussion to one of the teams' players.

Ms. Killion cites the cases of the two quarterbacks who played in last year's Super Bowl. The Steelers' Ben Roethlisberger left Sunday's game against the Chiefs after taking a blow to the head and suffering concussion-like syndromes. But by Monday reports out of Pittsburgh described the Super Bowl winning quarterback as "fine" and capable of playing this week. Arizona's Kurt Warner also left his game against St. Louis after his head slammed into the turf. But the Cardinals are "optimistic" Warner will play this week. This, despite the fact that Big Ben suffered a serious head injury in a motorcycle crash and Warner suffered multiple concussions in the past. Ms. Killion concludes that "[t]he culture of denial and quick turnarounds runs too deep in the NFL to be changed by a commissioner's mandate."

This SI column follows a recent article in The New Yorker, in which Ira Casson, who co-chairs an NFL committee on brain injury, said he isn't sure what the solution is. "No one has any suggestions -- assuming that you aren't saying no more football, because let's be honest, that's not going to happen," he said.

Commissioner Goodell's new policy addresses an issue that has long been part of the problem in the NFL: the onflict of interest posed by leaving the decision about when a concussed player should return to full contact to a doctor employed by the team and the league.

Ms. Killion points out that the culture of denial trickles down to college, high school and youth football. Every day, coaches and administrators struggle with medical issues far beyond their capability. At Cal, Jahvid Best has been sidelined for two weeks after suffering a horrific end zone collision and concussion. In Florida, Tim Tebow -- who, in September, was knocked out cold and carted off the field vomiting -- hasn't missed a game (the Gators had a bye the week after Tebow suffered his concussion). But some observers think he hasn't been the same since.

On high school fields around the country, kids are carted off with concussions every week. In New Jersey last year, a junior linebacker was cleared to play after suffering a concussion. He suffered another hit, which ended up killing him. His parents are suing the high school and their doctor.

The violent hits are celebrated. The early returns to the field are deemed courageous. The head traumas of star players are underplayed.

The NFL sets the tone for it all. Commissioner Goodell took a step forward this week. But there's a long way to go.

Originally posted at InjuryBoard by Michael Phelan

Sexual Harassment in the Workplace

Michael Phelan — Mon, 04 Feb 2008 01:00:00 GMT

Even in 2008, sexual assault continues to haunt the workplace. Since 1964, when sex and gender based harassment were outlawed with the passage of the Civil Rights Act of 1964, some male employers and supervisors have continued to use the workplace as a trolling ground for sexual gratification. More often than not, this is much, much more than about sex - it's about raw power. When an employer or supervisor uses the economic power of the workplace over a woman to force sexual contact, the female employee is placed in a hopeless situation. She must choose between putting her hard earned wages, a job, medical benefits and, often, concern for her family's ability to survive and blowing the whistle on this illegal conduct. Many times, there is no realistic choice. While completely involuntary and repulsive, it is the fear of losing the ability to care for her family that forces many women into this horrible nightmare she must face just by clocking in or reporting to work every day.

These State and federal laws protect against any unwanted gender based or sexual conduct that effects terms, conditions or privileges of employment. Title VII of the 1964 Civil Rights Act applies this prohibition to employers of 15 employees or more. Most states have complementary or parallel protection against sexual contact in the workplace. (While less common, men can also be subjected to this illegal conduct). Employees are generally also
protected against sexual conduct by customers of an employer. The statute provides very strong retaliation protection to those who oppose illegal conduct and to those who participate in any proceedings in claiming
protection of the law or as a witness to such conduct. The Equal Employment Opportunity Commission website contains extensive information on sexual harassment, retaliation and other forms of prohibited workplace
discrimination (www.eeoc.gov). State and federal judges take the retaliation protection very seriously and will not tolerate intimidation, threats or any retaliation to witnesses or to persons asserting their legal rights to challenge this conduct. In the case of Burlington Northern v. White, the United States Supreme Court recently expanded the retaliation protection in Title VII cases to prohibit any employer action that would dissuade a reasonable employee from asserting legal rights or assisting in a claim. Some federal Title VII claims have damage caps, or maximum limits, depending on the number of employees, but allow for recovery of emotional distress, humiliation, embarrassment, inconvenience, back pay and benefits values, reinstatement (or front pay in lieu of reinstatement at the court's discretion), pre-judgment interest and an additional award of any prevailing employee's attorneys fees and costs of court, to be paid by the offending employer. The damage cap for employers of 500 or more employees is $300,000 compensatory and punitive damages (in addition to awards for front and back pay, pre- and post- judgment interest and attorneys fees and costs of court). Lesser cap amounts apply to smaller employers, but even employers who employ as few as 15 employees have legal damage responsibility to not bring sex into the workplace. The law allows groups, or a "class", to challenge conduct that equally applies to many women.

Where a worker's work environment is affected or work benefits or salary are conditioned on the economic power of a supervisor to demand sex for job benefits, the employer is responsible. Where the employer creates or allows
a "sexually hostile environment", the employer is responsible. If you have a claim that you wish to pursue under this statute you must act promptly. You should consult an attorney knowledgeable in these areas. It is important that you report the conduct internally. An employer must take prompt and effective action to end the illegal conduct. The employer may have defenses if they encourage complaints, have a complaint process and you
do not use the process. There should never be a requirement that you report the conduct to the offending supervisor. If the employer requires this or the process is ineffective or futile, it will likely lose any defense it may
have for a complaint process.

Depending on your state, the time to file a claim with EEOC may be as little as 180 days from the time of the sexual contact or illegal conduct. State and federal employees may have even shorter deadlines. In Virginia, because
Virginia has a state deferral agency process, EEOC claims may be brought against private employers within 300 days, but, whether you have a less than 180, 180 or 300 day deadline, you should not wait. Your attorney can take
steps to preserve critical evidence now that the employer maintains (including damning emails and IM or text messages) - you should act immediately so that evidence is not destroyed or 'lost'.

Public employees have additional protections provided by their public employer and the U.S. Constitution Equal Protection Clause of the 14th Amendment which prohibits inappropriate sexual conduct in public employment.
However, these are subject to different timelines. Please act immediately or you may lose your right to challenge the conduct under these laws.

State common laws, including claims for assault, battery, sexual battery and intentional infliction of emotional distress are generally available to employees to assert directly against the offending supervisor or co-worker.
These claims generally allow longer time periods for filing suit than state or federal statutory claims, like Title VII, but time is critical in order to preserve witness testimony, evidence and the ability to prove the claims. These claims may have greater damage caps than allowed by statutory protections, or even no damage caps. In Virginia, where our law firm is located, there is no compensatory damage cap for these types of claims. That includes the forms of emotional distress, humiliation and embarrassment that are subject to the federal Title VII $300,000 damage cap. Virginia does have a damage cap on punitive damages, $350,000. Punitive damages are in addition to compensatory damages and are designed to punish the offender - to send a message to the community that this behavior will not be tolerated in the Virginia business community. Most states have common law protections that are similar to this, although specific protections and damage relief will vary from state to state.

In a case involving sexual assault in the workplace, our law firm will generally preserve both the state and federal claims so that the employee has the maximum amount of choice and leverage in terms of the best way to prevail in the case. With the advent of so much information being retained by employers in electronic data formats, we act immediately to preserve that evidence. Many of these cases are resolved by settlement, but we prepare every case for trial. Settlement occurs for many reasons, but a primary reason is because of the risk that a jury will award significant trial damage recoveries against the law-breaking employer, supervisor and/or co-worker. As the old adage goes: a case prepared for trial will settle; a case prepared to settle, will try.

In Virginia, an employer may be held responsible for the wrongful, tortious acts of its employees, even criminal acts, where the employee uses the employment to facilitate the sexual contact. As a general rule, an employee
who is engaged in the performance of the employer's work while the sexual conduct occurs (no matter how far afield he or she may be in how that is performed), the employer can be held responsible for the sexual assault or
contact. A lead Virginia Supreme Court case held a Virginia medical group subject to liability for a therapist who had sex with patients on the premise that it was part of the therapy. Another Virginia case held an employer subject to liability for a church sexton who sexually abused children at a church. We have successfully represented employees in cases involving workplace rape, sexual assault, touching, supervisors exposing
themselves, and repeated, abusive, sexual propositions and demands for sex. In most of these cases, the employer was subject to vicarious, or secondary, liability for its employee's actions. Virginia has very favorable vicarious liability, or respondeat superior, law that places responsibility on the employer for placing the employee in the position of harming another employee, customer or third party.

Virginia also recognizes the tort of negligent hire and retention directly against the employer for hiring or retaining an employee who poses a risk to the public or to other employees that was known or should have been known.
Employers who hire or retain employees with known propensities for improper or illegal sexual behavior, such as sex offenders and persons who have been disciplined or warned of improper sexual conduct in the workplace, can be held responsible for sexual assault or other improper sexual conduct in Virginia and, in some way, in all U.S. jurisdictions. Where the employer is aware, or should be aware of the conduct, the employer cannot allow it to
continue without suffering the consequences it creates or allows.

Sexual assault in the "workplace" does not always take place in the traditional workplace. The "workplace" may be a remote location where work is performed. This could include sexual assault by an employee of a company
against a customer, a customer's daughter or son, or anywhere the employment takes the offending employee. In these cases, since the victim is not an employee of the company, the statutory employment discrimination laws, such as Title VII, generally will not offer protection. However, the state common laws mentioned above (assault, battery, sexual battery, intentional infliction of emotional distress, negligent hire or retention of employees),
can be used by customers of employers with employees who sexually assault them or their family members.

Sexual assault is a horrible and demeaning wrong. Because of the circumstances, victims are often reluctant to come forward. Unscrupulous supervisors who use economic pressure over employees to force sexual contact
or who simply abandon all pretense of any "demand" to simply grab, touch, kiss or rape employees (and, by employing, acquiescence or negligence, their employers) rarely do this in isolation or a single time. Generally, the
pattern of abuse affects many women before one or several stand up to stop it for them and for future employees. If you have been subjected to a sexual assault, inappropriate sexual conduct or other sexual conduct, please
use the legal tools available to stop it. Congress and your states have enacted laws to stop the behavior, but it cannot be stamped out without you. I hope this overview of the various forms of legal protection has been
helpful. Harris Butler

Originally posted at InjuryBoard by Michael Phelan

Coping with Brain Injury During the Holidays

Michael Phelan — Mon, 23 Nov 2009 21:06:03 GMT

For victims of acquired brain injury, the time of year that once brought great joy may now be the most difficult time of year. Brain injury victims often struggle to cope with, among other sequelae, memory problems, obsessive compulsive behaviors, an aversion to loud noises, big crowds, and bright lights, decreased communication skills, and special diets. Imagine the terror of tying to cope with these issues while being expected to attend holiday parties and large family functions.

I read a wonderful piece in the Augusta Free Press advising brain injury victims how to cope with the holidays. Some suggested ways for making the holidays fun and less stressful for all, particularly when persistent cognitive /behavioral issues are problematic include:

1. Holiday shopping should be a fun activity and indoor malls are weather controlled and safe places for strolling on foot and/or for those wheelchair or walker assisted. However, the holiday period can make shopping less than a fun activity without preplanning. Start early to avoid the holiday crowds and use the opportunity to incorporate cognitive exercises into the planning. The individual with brain injury should make a list of gifts to be purchased or hand made, when possible, suggested gift ideas and estimates of costs associated with the gifts.

2. Catalogs that come in the mail this time of year are wonderful for gift ideas and also for estimation of prices. Take some time to sit down and look through a few as part of the independent planning phase.

3. Make out a simple budget before going to the bank and allow your family member with brain injury as much control of the funds as possible even though money management skills may be impaired.

4. Place greater emphasis on use of journals or calendars to record routine events as well as holiday activities. Schedule a week in advance, with a daily review to make note of any changes as they come up. Those accustomed to a daily routine may be better prepared when special dates and activities are written in the journal and/or on the calendar in colored ink for emphasis.

5. Each day, during the holidays, orient the individual by discussing the day’s activities over breakfast to avoid misunderstandings about changes from the normal routine. It is helpful to repeat this information several times during the day for those with severe memory problems.

6. If bright or flashing lights bother your family member and/or possibly trigger seizures, carefully plan any additional lighting that will be used during the holidays and avoid laser holiday lighting displays.

7. Crowded places and loud music may also bother some individuals and should be taken into consideration and monitored, if necessary.

8. Food is a big part of holiday fun and many of the foods may be very temptingly displayed. Parties, holiday family dinners, and open house gatherings are often scheduled at times that do not coincide with routine mealtimes, thus, presenting a problem for those whose mealtimes are more rigidly scheduled. You may want to offer a light snack at the regular mealtime to “tide him/ her over” until the main meal, or make whatever adjustments are necessary. For those with more severe cognitive deficits, which interfere with appropriate food intake, it may be necessary to help with monitoring to avoid overeating. It is very common for damage in the hypothalamus area of the brain to interrupt signals to the brain which help the individual know when their appetite has been satisfied, thus, many with brain injury need help with quantity control monitoring. Additionally, memory problems and attention can derail a persons resolve to watch their food intake to avoid excessive food and beverage intake. After a brain injury burning of calories may also be changed and individuals who could eat anything and everything before the injury may need to more diligently watch calories to avoid weight gain.

9. By all means don’t forget that increased activity during the holidays may be more fatiguing than usual so plan rest periods accordingly. This is particularly important when cognition and behavior are problems. Fatigue often increases confusion that can result in an outburst or other kinds of unpleasant behaviors.

10. Structure can be your best strategy for ensuring the entire family has a higher quality of life. Initially it takes effort to get the structure in place but it pays dividends in the end. Flexibility is a key word during the holiday season but planning and preparation will hopefully result in a happy holiday for family and friends.

Next comes New Year’s resolutions! Start thinking about ways your entire family can enjoy life more fully, fulfill the demands of your caregiving role and provide the best possible quality of life for your family member with brain injury.

Most of us take these simple pleasures for granted. As the father of a young adult with who suffers from the effects of brian injury and someone who represents victims of acquired brain injury, I know the importance of structure and routine in my child's life. There's nothing like the holidays to disrupt this routine.

Originally posted at InjuryBoard by Michael Phelan

Traps and Pitfalls in Representing Truck Accident Victims

Michael Phelan — Sat, 21 Nov 2009 10:37:19 GMT

Truck accident insurance investigation teams and defense lawyers are some of the most competent adversaries a plaintiff lawyer will encounter. The truck company investigators are often at the scene of the accident before the vehicles are removed from road. They know there is valuable information to be retrieved not only from the scene, but also from the vehicles. They are trained to remove the driver's logs from the truck cab and to download the data from the truck's electronic data systems. These systems include black boxes, GPS, satellite communications systems, and on-board computers. Obviously, much useful information about the truck driver's driving hours and statements about the cause of the accident, as well as the truck's speed, movements, and location may be gleened from the combination of the driver logs and the electronic data. For example, the GPS can show driver location during the course of the driver's trip. Combined with the driver logs, this information could establish that the driver exceeded legal driving hours, which leads to fatigue, sleepiness, and sometimes amphetamine use. The problem some lawyers do not appreciate is that most, if not all, of this data can be legally destroyed by the truck company six months after the accident. Attached is a December 2008 memo from the Federal Motor Carrier Safety Administration which outlines the requirment that truck companies maintain GPS data from truck accidents for six months. I downloaded this memo from an excellent blog by a prominent truck accident lawyer in Tennessee.

Over the years, I have been asked by other lawyers to assist with truck accident cases and have found that in many instances necessary evidence from the truck had not been preserved. Sometimes this is because the victim did not realize the importance of hiring a truck accident laywer right away. Other times it was because the lawyer did not realize that much of the important evidence could disappear six months after the accident. It is crucial to send a preservation letter to the trucking company and get a professional investigation team on the case as soon as possible.

Originally posted at InjuryBoard by Michael Phelan

Defense Neuropsychologists Want to Replace Jurors

Michael Phelan — Mon, 09 Nov 2009 16:14:14 GMT

Defense neuropsychologists are hell-bent on being able to testify whether they believe an injured person is telling the truth. They cannot be serious, you say. Determining the veracity or credibility of a witness is the exclusive province of the finder of fact. They are serious, and they've devoted a lot of time and energy coming up with a "consesus statement" wherein they agree they should be able to provide this testimony. See American Academy of Clinical Neuropsychology Consensus Conference Satement on Neuropsychological Assessment of Effort, Response Bias, and Malingering, The Clinical Neuropsychologist, 23: 1093-1129, 2009.

The crux of the "consensus statement" is that "neuropsychologists are capable and qualified to diagnose malingering," and that this diagosis "can be used to assist the trier-of-fact (e.g., judge, jury) in a legal decision-making process." Id. at 1099. The authors identify the types of people against whom they believe they are likely to offer this testimony. They include people seeking financial compensation for injuries, people seeking to be compensated for time away from work, soldiers injured during combat, and criminal defendants. Id. at 1098. Indeed, defense neuropsychologists have been complicit with the Veterans Administration's disgraceful efforts to deny benefits to our unfortunate soldiers who've suffered brain injuries from blast-induced injuries suffered in Iraq.

These forensic defense neuropsychologists are publishing their own literature and creating their own consensus statement to justify their defense testimony. Rather than get too bogged down fighting them on their own turf, I prefer to stick to long-standing jurisprudence. The neuropsychologists freely admit that they are trying to divine the witness's intent, and comment on his or her veracity and credibility. One passage from the consensus statement says, "[i]n considering the diagnosis of malingering, the clinician is explicitly making a determination of intent: more specifically, a determination of intentionally exaggerated symptoms and/or diminished capability with the goal of obtaining an external reward." Id. at 1097. In other words, they want to testify that your client is lying by either faking symptoms or feigning an inability to perform a task. Fortunately, most states' statutory and/or case law provides that a determination of the veracity or credibility of a witness is the sole province of the jury and not the proper subject of expert testimony. See e.g., Pritchett v. Commonwealth, 263 Va. 182, 186-187 (2002), and Brown v. Corbin, 244 Va. 528, 532 (1992)("The issue of a witness's credibility falls squarely within the jury's province, and is one which a jury can resolve without any expert testimony to assist it.").

Originally posted at InjuryBoard by Michael Phelan

Federal Court Determines Pharmaceutical Sales Representatives Are Not "Outside Salesmen"

Zev Antell — Thu, 02 Apr 2009 18:33:32 GMT

On March 30^th, a Connecticut Federal court found that the FLSA’s “Outside Salesman” exemption did not apply to Pharmaceutical Sales Representatives. In issuing its ruling the court resisted the temptation to concede to legal fictions created by other courts in order to justify withholding overtime compensation. Without getting too technical, at the core of the ruling is the fact that Pharmaceutical Sale Representatives do not actually sell anything. In fact, federal and state law precludes them from making the very sales that would make them exempt. Rather, their role is to inform health care providers about the benefits of a given drug and to attempt to convince those professionals to write prescriptions. In order to be exempt under the FLSA as an outside salesman, you first have to actually sell something. This decision means that thousands of Pharmaceutical Sales Representatives (sometimes referred to as “Drug Reps” or “Drug Representatives”) may be entitled to countless hours of previously unpaid overtime compensation. Overtime compensation is calculated as one and a half times your regular rate of pay for those hours beyond forty worked in a single week. Typically, Drug Reps make a good living, but the work requires long hours, often well beyond forty in a single week. Thus, it is not a stretch to think individual Drug Reps might be able to recover tens of thousands dollars for unpaid overtime accrued over just a couple of years.

For those readers interested in reading the court’s 3/30/09 opinion in Kuzinski v. Schering Corp., it is currently available at 2009 U.S. Dist. LEXIS 25702.

Originally posted at InjuryBoard by Zev Antell

Are Enemies of 7th Amendment Outraged About This Frivolous Defense?

Michael Phelan — Thu, 15 Oct 2009 10:29:19 GMT

Let's see if the insurance industry-sponsored lobbyists who call themselves tort reformers hold any press conferences or buy any advertisements to criticize the frivolous defense being put forth in the case where the pet chimpanzee ripped the face off of a woman. I'm not going to hold my breath waiting because this frivolous legal maneuver benefits the defendant chimpanzee owner's insurance company. Consequently, I don't expect any outrage from the so-called tort reformers. They only seem to become outraged when trials guaranteed by the Seventh Amendment to the Constitution benefit individual citizens.

In the case of the maraudering chimp, the attorney representing the owner of the beast that mauled and blinded a woman is calling the attack a work-related incident and said her case should be treated like a workers' compensation claim. The strategy, if successful, would bar the victim's claim against the chimp's owner and limit her damages to whatever is recoverable under the applicable state worker's compensation statute, which statutes typically provide for partial payment of lost wages and payment of medical bills. Claims for permanent disfigurement, pain, humiliation, embarassment and loss of enjoyment of life (sypmtoms one would expect in connection with loss of one's face) are typically not covered by worker's compensation.

Here's the genesis of the worker's comp defense. Sandra Herold owned a tow truck business called "Desire Me Motors." Travis the chimp's face was painted on the side of the tow trucks and he apparently appeared at company promotional events. Sandra Herold lives in Stamford, Connecticut where she keeps the 200-pound chimp. One day in February 2009, Ms. Herold could not get Travis to come into the house from the yard, so she asked her friend and employee Charla Nash to help lure him back into the house Stamford. The animal ripped off Nash's hands, nose, lips and eyelids, and she remains hosptialized. Nash was an employee of Herold's tow truck company. When police arrived at the scene, Travis attacked them too. The police were forced to shoot and kill the chimp. Test results showed that the chimp had the anti-anxiety drug Xanax in his system. Does helping her "friend" lure her friend's pet into the house sound like part of Nash's duties as a tow truck company employee? Not in a million years.

Nash's family filed a lawsuit against Herold, saying she was negligent and reckless for lacking the ability to control ''a wild animal with violent propensities.'' But Herold's attorney filed court papers saying that Nash was working in the scope of her employment with Desire Me Motors at the time of the attack. He argues that Travis was an integral part of the business, and that Nash's claims against Herold are barred by the workers' comp statute. I wonder if he'll be arguing that Travis was a statuory co-employee.

Here's the good news. We don't need tort reform or any other sweeping government intervention into the legal system in order to address this or any other case. The system will likely sort this case out. For the most part, we have excellent trial judges and responsible jurors in this country. I predict that this workers' compensation plea will not succeed.

Originally posted at InjuryBoard by Michael Phelan

Worst Insurance Companies for Consumers Revealed

Michael Phelan — Fri, 18 Jul 2008 08:54:19 GMT

According to a report compiled after six months of researching court documents, SEC and FBI records, state insurance department investigations and complaints, nationwide news accounts, and testimony of former insurance agents and adjusters, Allstate is the nation's worst insurance company for consumers.

"The rankings show a distinct pattern of insurance industry greed amongst 10 companies that refuse to pay just claims, employ hardball tactics against policyholders, reward executives with extravagant salaries, and raise premiums while hoarding excessive profits," the American Association for Justice (AAJ) concludes.

The AAJ says the U.S. insurance industry collects more than $1 trillion in premiums annually, and has $3.8 trillion in assets, surpassing the Gross Domestic Products of all countries but the United States and Japan.

The top 5 offenders on the list:

1. ALLSTATE - CEO, Thomas Wilson; 2007 compensation, $10.7 million; 2007 profits, $4.6 billion; assets: $156.4 billion. "According to investigations and documents Allstate was forced to make public, the company systematically placed profits over its own policyholders... The amount Allstate paid in claims dropped from 79 percent of its premium income in 1996 to just 58 percent 10 years later. In auto claims, payouts dropped from 63 percent to just 47 percent.

2. UNUM - CEO, Thomas Watjen; 2007 compensation, $7.3 million; 2007 profits, $679 million; assets, $52.4 billion. "Unum, one of the nation's leading disability insurers, has long had a reputation for unfairly denying and delaying claims.."

3. AIG - CEO, Robert Willumstad; 2007 compensation for former CEO, 14.3 million; 2007 profits: $6.2 billion; assets, $1.06 trillion; "AIG executives have also come under fire for opportunistically seeking price increases during catastrophes. Now the company has been labeled 'the new Enron' because of charges of multibillion-dollar corporate fraud."

4. STATE FARM - CEO: Edward B. Rust Jr.; 2007 compensation, $11.7 million; 2007 profits: $5.5 billion; assets, $181.4 billion. "In many cases, the company has gone to extreme lengths to avoid paying claims, including forging signatures on earthquake waivers after the deadly Northridge earthquake, and altering engineering reports regarding damage after Hurricane Katrina."

5. CONSECO - CEO, C. James Prieur; 2007 compensation: $2.6 million; 2007 profits: $179.9 million; assets: $33.5 billion. "Conseco sells long-term-care policies, typically to the elderly. Unfortunately, Conseco uses the deteriorating health of its policyholders to its advantage because the company knows if it waits long enough to pay out claims, its customers will die."

Why is this information important to consumers? In the case of automobile insurance, a consumer involved in an auto accident may have the misfortune of being struck by a negligent driver who is either uninsured (UM) or underinsured (UIM). In either case, the consumer would have to look to his or her own auto insurer for full and fair compensation. So, you've purchased auto insurance with UM and UIM coverage (for which you are paying premiums), you've made timely premium payments for decades, and you've never caused an accident. You might think that when you've been injured by another driver and need to rely on your UM or UIM coverage your insurance company would be on your side. Think again. In such cases, your own insurance company often fights you like you're the enemy. In my experience, there are some companies who treat their insureds better than others. USAA comes to mind as being among the best. GEICO likewise is quicker than others to offer its UM or UIM coverage limits to its insureds. Not so with Allstate and others. In my opinion, you are not in good hands with Allstate.

Originally posted at InjuryBoard by Michael Phelan

Does Your Home Contain Foul Smelling Chinese-Made Drywall?

Michael Phelan — Wed, 21 Jan 2009 15:02:43 GMT

This issue was first brought to my attention by fellow blogger, Wayne Parsons, in a January 2, 2009 blog, "Drywall From China Causes Concern Over Sulfur Odor in Homes." Apparently, health department and building officials across the Southeast have been getting a lot of reports about Chinese drywall which, according to the National Organization of Remediators and Mold Inspectors, emits much higher levels of sulfur, methane, and other volatile organic compounds than is considered safe for humans.

The Engineering News-Record reported this week that the foul-smelling Chinese drywall has been linked to corrosion of mecanical and electrical systems and has raised health concerns. Robert Kraus, president of the southwest chapter of the American Society of Homebuilders, stated that moisture triggers the Chinese-made drywall to emit an odor that smells like firecrackers. He also stated that replacing the drywall alone may not correct the problem because the drywall may have caused corrosive damage to electrical and/or mechanical systems in the home. Florida officials have received reports of problems with air conditioning systems, plumbing, electrical outlets, and tarnished jewelry and other metal items caused by corrosion from the chemicals in the drywall.

Under Virginia law, the parties who may be liable for damages to home and health caused by this drywall include the manufacturer, distributor, and retailer of the product. Manufacturers may be liable under theories sounding in negligence and/or breach of warranty, while merchants (the distributors and/or sellers of the product) may be liable for breaches of either warranties of merchantability, fitness for a particular purpose, express warranties, or other applicable warranties.

If your home has a noxious sulfur smell, call your builder or home renovator and determine if your drywall was made in China. If so, your builder/contractor should remove the drywall, check your wiring, plumbing, and mechanical systems for corrosion, and replace the drywall with non-Chinese-made drywall, preferably drywall made in the USA. You made need to call your local building official and ask him or her to encourage your builder to take responsibility for the problem.

Originally posted at InjuryBoard by Michael Phelan