Virginia Personal Injury and Medical Malpractice Blog

VA House Bill HB-93 Aims To Close Insurance Loophole

Virginia Bill aims to close insurance loophole UIM carriers use to save money at taxpayer's expense. Read on to see what the problem is and how VA Bill HB-93 will fix it.

Hulk Hogan Sues His Son's Former Lawyers

The famed wrestler Hulk Hogan is entering a whole new fight. He recently filed suit in south Florida against the attorneys who represented he and his son, Nick Bollea, in major car wreck case in 2007. Read more about Nick Bollea's 2007 car wreck.

Hogan's auto-insurance policy through Progressive offered an all-expenses-paid defense but he didn't know that and hired the firm of Zuckerman Spaeder to defend he and his son. Zuckerman Spaeder ended up charging Hulk over $1.5 million in costs and fees! Now Hogan has brought suit claiming that the firm should have told him that there was the "free" option from Progressive. The complaint is quite extensive at 44 pages in length and charges 8 counts of malpractice and intentional breach of fiduciary duty agains the firm and its lawyers.

The important lesson here is to know what's in your policy. Hulk didn't and now he has a second lawsuit to tend to because of it. Another lesson to take from it is to promptly speak to your insurance company. Hogan had representatives and lawyers speak to the insurance company, those who would gain from him not knowing about the "free" option, and wasn't able to hear his options straight from the one's who knew them best, Progressive. Finally, Hogan was under-insured with only $500k, any settlement or judgment greater than that and he'll have to pay out of pocket. Million dollar policies aren't that expensive and it's a shock that a celebrity like this doesn't have at least that.

Here's the press release for Hulk Hogan's lawsuit along with the complaint. Here are the exhibits in support of the the suit including correspondence between Hulk Hogan and his lawyers.

Can you really settle a case with Allstate before the day of trial

Those of you who have followed my blogs, read my book on Virginia car accidents, read this website, etc. know that I am one who says that you don't always need a lawyer to settle your case. I encourage people, especially if the case is small, to try to get things worked out with the insurance company. I'm prepared to give everyone the benefit of the doubt.

I have a different opinion about Allstate. Remember, they are the company that for years, sent a letter to claimants basically encouraging them to not get a lawyer because "a lawyer will just take a huge portion of your settlement."

Let me tell you about a recent case our office handled. Remember, each case is different and you can draw your own conclusions.

I got a call from a lady who had been in an accident with an Allstate insured. The accident was clearly the other person's fault. The injury victim had never sued anyone before, had never been in an accident before and was in perfect health before the accident. She had a good job making over $100,000 a year.

Her injuries were fairly serious but would resolve with time and good treatment. I told her that even though here case wasn't "small" that she should go throught treatment, get better and try to work the case out with Allstate.

She followed my directions.

She followed the doctors orders.

She got better over time and approached Allstate with a very reasonable settlement proposal. She gave Allstate all of her medical records, lost wage forms, and medicial bills.

Allstate then proceeded to offer to repay her medical bills, only. Essentially they weren't offering her anything for pain and suffering, inconvenience and the like.

She came back to me and we filed suit. Allstate did very little to defend the case. It sent out a bunch of subpoenas but it admitted that its insured was at fault. It took the deposition of our client. Allstate did not even request that a doctor perform an independant medical examination, probably because the medical picture was so clear.

A couple of weeks before trial Allstate essentially TRIPLED its offer and the case settled.

My point is that there is no reason the victim should have had to hire an attorney to get fair compensation. The case did not change at all. The medical picture at the time the case settled was exactly the same as the picture on the day the claimant tried to get the case settled.

My advice. If you've been hit by an Allstate insured. Get a lawyer. They won't listen to you until you do.

Just my opinion. Each case is different. Come to your own conclusion.

Court rules that case brought within 2 years in another state satisfied Virginia's statute of limitations

Here is an unusual situation:

The plaintiff was injured in Virginia in a car accident with a resident of Ohio. He filed suit within 2 years in Ohio and he filed an identical suit here in Virginia after two years had passed.

After much legal wrangling, the Virginia court said that the lawsuit filed in Ohio (even though that Court ordered the case transferred to Virginia) was good enough to stop the running of the statue of limitations.

In this case an action was filed in the Ohio court one day before the running of the statute of limitations. The fact that the original action was filed in another state, and perhaps in an improper venue, is of no concern to this Court. The plain language of the tolling statute contemplates "any action" commenced within two years. Code § 8.01-229(E)(1). The commencement of the Ohio action falls within the statute.

This action was also brought within the remaining period allowed by the statute of limitations once the original action had ended, in this case one day. The fact that this action was commenced before the tolling period ended is not of consequence.

Thornton v. Estes Express Lines, 15 Cir. CL0800086500, 77 Va. Cir. 455 (2009)

Payee Notification in Virginia--Some Lawyers Oppose It and They are Wrong

There's a simply way to prevent those few lawyers who deliberately steal from clients. These folks figure out a good scheme to steal millions...and they usually get away with it for long enough to devastate the clients they steal from.

There's a simple solution and its called payee notification in Virginia.

Amazingly, some lawyers in Virginia oppose this consumer protection statute.

You'll have to ask them why.

I'd invite them to "join the conversation" at this blog and express their opinions as to why Virginia should not enact payee notication now.

“Stacking” Allowed Under Uninsured/Under-Insured Motorist Coverage Plan

Many attorneys would have said "there's not enough coverage", but recently one attorney "dug deep" to discover a way to vastly increase the insurance coverage available to his client. And the way he did it means great news for the plaintiff’s bar! The Supreme Court of Virginia ruled earlier this week that “stacking”, or combining, the Uninsured Motorist/Under-Insured Motorist coverage in a policy is allowed.

In the case at issue a young girl was badly injured in a car wreck but both the car she was riding in (a friends) and the car at fault were underinsured. Her father’s policy covered three other vehicles for a total of $850k for bodily injuries (split $300k, $300k, and $250k).

The insurance company argued that they had included provisions disallowing “stacking” meaning that the most they could offer in coverage was $300k for one vehicle.

The Court held that the insurance company had not appropriately excluded stacking and that the plaintiff was entitled to the full value of the policy.

With the SCVa’s ruling it opens up a window of litigation for plaintiff’s until the insurance companies are able to modify their policies to properly disallow “stacking.” This case could prove to be quite important as attorneys will now be scrutinizing “stacking” clauses much closer to make sure they are up to snuff. Of course, if you consult with an experienced personal injury attorney before you even buy your plan, you probably wouldn't need to rely on a "litigation window" to be successful in your claim.

Ohio Truck Accident Case

Toledo truck accident attorney Chuck Boyk and his legal team are to be congratulated for a terrific $1.25 million dollar verdict. You should read Chuck's post on this case because it shows, truly, the fight that many injured victims must go through to get justice.

Boyk is one of the premier truck accident attorneys in Ohio. If you've been injured in a car accident in Ohio, give Chuck Boyk a call.

Remember, each case is different. Consult with an experienced nationally board certified specialist in your area.

When Hartford comes a calling....

It seems that video surveillance may be on the uptake for Hartford long term disability claimants.

"ERISA Sucks" Judge Refuses to Vacate Order

Judge William Acker refused a Joint Motion to Vacate his ruling in Blankenship v. MetLife an ERISA case he recently presided over. Acker's final order was quite critical of ERISA and its interpretation by many judges.

A Federal Judge Explains Why ERISA Sucks (Believe Me, It Does)

A Federal Judge discusses the perversion of ERISA from it's original intent. From protecting the retirement incomes of Americans everywhere to providing a shield for insurance company's shady activities. Read on for the problems with, and shortcomings of, the Employee Retirement Income Security Act.

VA Worker's Comp Commission Rules Facebook To Be Protected

A recent article in the Richmond Times-Dispatch highlights the burgeoning world of technology and the ways in which the law is trying to catch up. The article focuses on a recent Virginia Worker's Compensation Commission case in which Facebook was subpoenaed to provide the personal information of a worker's comp claimant.

Facebook refused to comply with the subpoena (at a cost of $200/day) on the grounds that it would invalidate the privacy agreement on the site, that they were protected by federal statutes prohibiting information release, and on the principal that the site is "built on trust" and to give in to the subpoena would undermine the site's basis.

The Deputy Commissioner, Randolph Tabb, agreed with Facebook on the grounds that the Federal Electronic Communications Privacy Act protected the member's of the site and that their information was not able to be attained through subpoena.

With technology and social media becoming ever present in our lives it's interesting to see how the courts adjust to the changes and advances. In this case the claimant went ahead and allowed access to her info anyway, but anyone who doesn't want to is now protected. Here's a link to the article on Facebook defeating the subpoena .

First UNUM Finally Loses 15 Year Old Disability Case

First UNUM finally lost a disability insurance claim case that has been going on for the last 15 years. John McCauley filed for disability all the way back in 1994 and has finally been awarded the ruling he was looking for. After UNUM first denied his claim in the mid-90s McCauley was forced to return to work for financial reasons but was only able to fight through his debilitating pain for 8 months. UNUM claimed this period meant that McCauley could not recover benefits because he had worked more than 6 months. The court was able to determine that UNUM's denial forced the client into work and that UNUM was using that work to deny benefits was an "unconscionable" practice and that the 6 month clause was to be ignored because of it.

Courts can ignore portions of contracts that they see as "unconscionable" or "so grossly unreasonable or unconscionable in the light of the mores and business practices of the time and place as to be unenforceable according to its liberal terms."  The court did this and remanded the case to determine just how much UNUM owes in back benefits to McCauley.

For the entire opinion follow this link to my disability insurance book site.

Do I Have To Do Everything My Insurance Company Requests?

Your insurance company may ask you to do a variety of things from taking tests to giving interviews and possibly even seeing one of their doctors. Should you go along with all of this? See the answer to this disability question and then check out my FAQ section for more answers to possible questions you might have.

If your question isn't there you might be able to find the answer in my disability book titled Robbery Without A Gun.

What If My Doctor Refuses To Cooperate With Me In A Claim For Disability?

Well the short of it is that it's very bad for the claim, for the long of it go to my disability FAQ section to figure out how you might be able to remedy the situation.

You can also check out my disability insurance book titled Robbery Without A Gun: Why Your Employer's Long-Term Disability Plan May Be A Scam

What If My Termination Letter Says I Missed A Deadline, Is My Case Lost?

If the termination letter says you've missed a deadline your case is not necessarily lost. Read my in-depth answer to this disability question to find out how it can be saved and to find out what I might be able to do for you if your benefit is terminated.

Does ERISA Apply If I Work For A Government Agency?

The short answer is generally no. But check out the in-depth answer regarding ERISA and government agencies, and check out my other answers to disability FAQs on my FAQ page.

If I'm Involved In A Disability Lawsuit, How Long Will It Take To Resolve?

More great questions with what I hope you'll think are great answers!

If I am involved in a lawsuit, how long will it take to reach a conclusion?

What are offset provisions?

What should I do when I get a letter terminating my benefit?
   

More info in my disability insurance book titled Robbery Without a Gun: Why Your Employer's Long-Term Disability Plan May Be A Scam.

Is the Insurance Company Watching Me? And Other Questions?

Hot off the press!

Is the insurance company likely to put me under surveillance?

If I am involved in a lawsuit, how long will it take to reach a conclusion?

I have been awarded Social Security disability benefits. But the insurer of my disability policy has denied my claim. Can the insurer do that?

Visit my FAQ section for past questions and order my disability insurance book to answer ALL (okay MOST) of your LTD questions!

What Does It Mean To Be Actively Treated, Am I? And Other Questions

More questions and answers!

I've heard that to receive benefits you have to being actively treated. My doctor has told me that I'm not a candidate for surgery and the best thing I can do is lose weight. How do I justify seeing him on a regular basis if he's not doing anything? Will the insurance carrier inquire as to what’s going on as far treatment, or can I just see him every 6 months for a check-up?
   
Can I cancel a policy within in the first 2 years or so even though the policy is non-cancellable until age 65?
   
I would like to know exactly what the insurance company says my disability is because I want to make sure the insurance company and I have the same criteria for my disability. Will they send me this information? Can I request a copy of the policy that pertains to my disability?

And remember to check out my book Robbery Without A Gun for more on disbability insurance claims!

What Date You Claim Disability Is Important! - Find Out Why

More important info on your disability insurance claim:

What date should I put on the disability claim form as to when my condition started? I have a ninety day wait period and a requirement that a notice of claim be made within twenty days or 'as soon as reasonably possible.'

I’ve heard that insurance companies continue to check on your status. Do I have to go thru this whole thing again with having my doctors fill out forms confirming my sickness? I have not been working at all, so that is one issue that they won't hassle me about.
   
Under what conditions will the insurance company have to pay my attorney fees?

A Psychiatric Disability Case Gone Wrong For AT&T

Here's a great case out of Tennessee in which the insurance doctor made a decision to deny with hardly any information. That's dangerous because what if they then miss information that makes it an obviously valid claim? Well then they get sued and taken to court and that's exactly what happened.

It was a psychiatric disability case and those are tricky and require a bit more attention from the disability insurer. Dr. Grimes, the reviewing psychiatrist made the decision to deny based on the opinion that the claimant was able to perform her job. She made that decision without any knowledge of the claimant's job, without interviewing the claimant, and without consulting with all of the claimant's treating mental health professionals.

That might fly in physical disability cases because often the records can speak for themselves, but when they're dealing with psychiatric disability it's important to have a physician actually meet with the claimant to determine the extent of the disability. Unfortunately that's not how the insurance companies want to do it, so they don't. Trying to save a little time and money and they're asking for litigation. Well, again, they got it. Next time they should take the time to actually review the claim and save everyone the hassle of court by accepting the initial claim.

Click here to read the full opinion of Allen v. AT&T Disability Income Program, the case in question.

Disability FAQ - More Answers To Your Questions

The latest in my attempts to answer any and all questions you might have about disability insurance law.

A doctor who only met with me for 15 minutes checked-off "work related" on an examination form, even though my illness is in no way work related.  My disability carrier is now saying "given that the doctor checked-off 'work-related,' you may not be covered under your employer's STD policy." What should I do if I get turned-down for STD?
   
I was being treated by a doctor who specializes in my condition, but I recently switched to another specialist. Do I need to inform the LTD company that I have a new physician or can I wait until a new set of forms need to be filled out and then have my new doctor complete and return the forms?

I recently got a paper to fill out saying I was being reviewed. The paperwork with it says I will hear from my local office soon, but I have heard nothing so far.  Should I have heard something by now or should I be doing something to ensure that my payments continue?
   
Remember to send in your own question if you have one. I'll do my best to get to it in a timely manner! In the meantime you can order my disability insurance book, titled Robbery Without A Gun: Why Your Employer's Long Term Disability Plan May Be A Scam, for more information that might answer your questions!

More Disability Q&A - Ask And I Will Tell

Continuing in my attempts to provide up-to-date responses to all of your questions here are few new answers to your questions. You can also find them in the FAQ section of the site. Enjoy and remember to submit your questions!

Can the LTD company make me go to court even though I am working again?  If SSD determines that I was not disabled, is it possible that I can still get money from my LTD carrier for the time when I was sick and not working?
   
Unum has offered me a buyout of $38,000.  I have 10 more years to draw $600/month, so this seems to be a low offer to me. Can they offer more or is this what I would be only entitled to? Is the life insurance I have with them cancelled if I accept the buyout?
   
I was just approved for Social Security Disability. It took a year, so I will receive a lump sum payment for back benefits. Up until now, Unum paid benefits to me through my former employer's disability policy. Do I have to repay those benefits to Unum or my employer?
   
I have gotten several conflicting recommendations from my doctor: first that I am not a candidate for surgery and then that I should undergo extensive surgery.  I have filed for SSD and am getting LTD from insurance carrier. If I refuse surgery and go with the first diagnosis what will happen with SSD and LTD?
   
The insurance company requiring an IME and there are no doctors within a 75 mile radius that does that sort of testing. What should I do to appeal the matter?


Keep 'em coming and I'll keep answering! And remember you can always order my Disability Insurance book and get all the info you need!

UNUM Defeated Again For Behaving Badly

    Here's another case in which we see insurance companies behaving badly. Patricia Galvin, a Tax Attorney from Northern California was rear ended by a speeder and suffered back injuries that would lead to chronic debilitating back pain. Every doctor seen by Ms. Galvin concluded that she could not work due to the pain.

    The only doctor to say she could work was UNUM's own Dr. Stephen Jacobson who claimed that Ms. Galvin's pain was subjective and that there was no objective medical evidence that the pain was at the level she described. UNUM also claimed that the cause of Galvin's inability to work was not her injuries from the accident but from depression exacerbated by a hostile working environment (which was created by her inability to function after her injuries).

    So UNUM is claiming that her inability to work is caused by her hostile working environment. Ignoring the fact that the hostile working environment was created by her attempts to remain working despite her disability. Another catch-22 crafted by the insurance company to deny a legitimate claim. This time the court agreed with the plaintiff but California is a generous state when it comes to dealing with insurance companies and it certainly isn't the case that a similar result could be expected in similar circumstances elsewhere.

Read more on the complete opinion and more on Galvin v. UNUM and ERISA cases here.

Threats by Disability Insurance Company

I've got a potential client who may have a claim against one of the major long term disability insurance companies for lifetime benefits. (Yes, these policies exist--written long ago...collected premiums all these years...they just hate it when a claim is made)

Anyway, the claims rep tells him "you know, if you make this claim we are going to bug you and pester you for the rest of your life. We'll not only require every form known to man but you'll never know when the truck down the street is hiding our video surveillance."

The potential client, to his great credit, didn't take the bait and argue with the guy.

He just said: that's exactly what Ben Glass told me you would say!"