Getting Covered and Late Notice to Your Insurance Company

The Appellate Division, First Department, recently ruled that if the insurance company is to assert a late notice defense, it must do so as soon as reasonably practicable.  The insurer cannot delay in asserting this defense until after it completes its investigation.  See George Campbell Painting v. National Union Fire Ins. Co. of Pittsburgh, PA.

In this case the insurance company first asserted its defense of late notice many months after being notified.  The the insurer issued a letter asserting the defense of late notice many months later and after it had completed its investigation.  The court stated that this is too late, and this defense is deemed waived.

If you have a claim or lawsuit against you, be sure to notify your insurance company in writing as soon as possible.  The policy obligates you to provide notice as soon as reasonably practicable.  See Insurance Law sec. 3420.

If the insurance company does not assert the late notice defense promptly, it will not be able to disclaim coverage.

Therefore, after you have provided notice in writing look-out for any coverage letters or reservation of rights letters issued by your insurance carrier.  This will determine if there will be a problem with insurance coverage later down the road.

If you have an insurance coverage problem, please feel free to contact me for a free consultation at either 800-531-1434 or letters@seitelman.com.

Mark E. Seitelman, 1/27/12, www.seitelman.com.

Getting a Recovery for Injuries from a Cruise Shipwreck

A shipwreck is the most serious incident at sea.

Passengers may be  injured in a variety of ways, such as

• death by drowning or other trauma;
• fractures sustained during collision or a sudden listing of the vessel; and
• serious injuries during the evacuation.

Injured passengers and their attorneys should keep the following in mind:

• The negligence of the ship owner;
• The proper place to bring suit and the choice of law;
• The strict time limits for filing a lawsuit.

I.  Negligence 

Despite the fact of a spectacular accident of  a ship sinking, an injured passenger still  must prove negligence by the cruise line.

In some instances governmental authorities will investigate and issue a considered report.  This report may support a finding of negligence. 

It will be easier to prove a shipwreck due to navigational error, such as sailing too close to land, rather than unforeseeable elements, such as a sudden storm at sea.  

In very dramatic cases of carelessness, the cruise line may concede negligence.  

II.  The Proper Place to Bring Suit and Questions of Law

A central issue is the proper place to bring a lawsuit.

As we have written previously, the cruise ticket determines the venue of the lawsuit.  Generally, cruise tickets state that the place to bring a lawsuit is the federal district court where the ship line has its office. 

Most cruise lines marketed in America have offices in Miami or its environs.  (E.g., Carnival, Holland-America, Cunard, NCL, etc.)  These cruise companies often sail from an American port, such as Miami or New York.  Therefore, the U.S. Court in Florida will have jurisdiction over the cruise line.

An interesting exception is the foreign cruise line which may not do business in the United States.  For example, there are cruise lines headquartered in Europe, which are not marketed widely in American, and  which do not do business in the United States.  Such cruise lines may work solely in the seas and waterways of Europe, Africa, or Asia. 

In those instances an American may not be able to bring suit in an United States court.  The injured passenger may be contractually bound to bring suit in the headquarters city of the foreign owner. 

A second question is whether American law or a foreign law determines the outcome of the case.  The ticket may indicate a choice of law.

A careful review of the cruise ticket will be the essential first step in determining the client’s rights.

III.  The Strict Time Limits for Filing a Lawsuit

We have written previously that there are short time deadlines to file suit.

The typical deadline is six months from the accident date for notice of claim.  The lawsuit deadline is one year from the date of the sinking.  

Again, the cruise ticket must be reviewed carefully.

 Conclusion

The injured passenger’s rights will be controlled largely by the terms of the ticket.  It should be reviewed as soon as possible, especially in view of the short time limits for bringing a lawsuit.

Mark E. Seitelman, 1/16/12.

Getting a Recovery for Transvaginal Mesh Injuries

We are now handling transvaginal mesh cases.

Thousands of women have been injured due to the surgical insertion of a transvaginal mesh. 

A mesh is a plastic device inserted into the body to support a weak wall.  In transvaginal mesh cases, a surgical mesh is inserted in the vagina to support a weakened area.  

Prior to the development of transvaginal mesh, surgical mesh had been used with success in hernia surgery.

I.  The Use of Transvaginal Mesh

In essence, mesh is used to hold-up and support organs in the pelvic region which have moved or sunk due to child-bearing and aging.

Transvaginal mesh is supposed to help the following problems:

1. Pelvic Organ Prolapse (“POP”).  Where the vaginal wall becomes weak, either the bladder or  urethra may sink into the vagina.  As a result a woman may not be able to empty her bladder completely, she may leak urine, and she may suffer from increased bladder infections.  (The bladder condition is called cystecele, and the urethra condition is known as urethrocele.)  There is another condition, rectocele where the lower intestine bulges into the vagina.
2. Stress Urinary incontinence (“SUI”).  The hallmark of stress urinary incontinence is leakage of urine while coughing, laughing, or sneezing.  This condition may exist because of pelvic organ prolapse.  SUI should not be confused with other urinary conditions, such as urge incontinence, overactive bladder, and overflow incontinence.

II.  The Danger of Transvaginal Mesh

The main problem is that the mesh may fail to integrate with the vagina.  This  “erosion” can result in serious inflammation which breaks-down the surrounding tissue.

The use of mesh is unsafe for a number of reasons.  First, a woman’s pelvic area has too much movement for the safe integration of the mesh.  In comparison, mesh has been used with success in other parts of the body where there is not as much movement and twisting.  Also, the vagina wall is very sensitive and does not adapt to receiving the mesh.  

“Erosion” of the mesh will cause:

1. tremendous pain and discomfort;
2. scarring, including the movement of the mesh outside the vagina;
3. severe infections;
4. damage to the other organs, such as the bladder and intestine; and 
5. an inability to engage in sexual intercourse.

The only treatment is surgery to remove the mesh.  But surgery may be unsuccessful because part or all of the mesh has integrated with the surrounding tissue.  Therefore, surgical removal can cause further damage.

Furthermore, it appears that the mesh does not work.  The FDA has stated that recurrence of POP and SUI is a complication of the surgery. 

On July 13, 2011, the FDA issued an alert stating that complications are not rare from the use of transvaginal mesh.

III.  The Manufacturers

These are the biggest manufacturers:

•  C.R. Bard;
• Ethicon (a subsidiary of Johnson & Johnson);
• American Medical Systems; and
• Boston Scientific. 

III.  What You Need to Do

You should schedule an immediate consultation with an attorney so that work can begin.  There is a great deal of medical work-up that must be done before a suit is filed. 

The major manufacturers are having cases consolidated for joint discovery.  For example, a judge in the New Jersey Superior Court is controlling the discovery of cases involving Ethicon mesh.  Therefore, there will be a coordinated and orderly scheduling of discovery and trial.

Please feel free to contact me for a free consultation at either 800-581-1434 or contact@seitelman.com.  

Mark E. Seitelman, 1/17/12, www.seitelman.com.

We Are Handling Medical Devices and Dangerous Drugs

Our practice is expanding to include defective medical devices and appliances and dangerous pharmaceutical drugs. 

    

Initially, we are expanding into the following areas:

• DePuy Hip Replacement; and
• Transvaginal Mesh Devices.

We are exploring expansion into further areas such as the Zimmer hip implants and Actos (a diabetes drug linked to bladder cancer).

Often, these defective product cases are handled as so-called mass torts.   In a mass tort litigation, a single judge may coordinate discovery in all cases in the USA although the client maintains his individual lawsuit where he resides.  

As with all injury cases, you should consult with an attorney immediately if you suspect that you have been injured.  Please call us for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 1/10/12, www.seitelman.com.

We Are Handling DePuy Hip Implant Cases

We are handling DePuy hip implant cases.

Due to its defective design, patients have had to have their artificial  DePuy hip prosthesis removed and a new one implanted. 

The DePuy ASR hip system was designed to give the greatest mobility of the hip joint.  However, there is insufficient coverage of the acetabular cup to distribute fully the forces of the ball (femoral head) against the cup without concentrating those forces called edge loading.  

As a result of this defective design, patients have experienced metal on metal wear and tear of the metal ball rubbing against the metal cup.  As a result, metal shards from the hardware are released into the body.  

Patients have had the following injuries:

1. loosening of the hardware;
2. a need for removal of the prosthesis and implantation of another artificial hip; and 
3. the release into the body of metal ions (cobalt and chromium) resulting in disease to both the immediate area and the entire body.

One central defect of the implant is the use of metal against metal which causes wear and tear and allows shards of metal to enter the body.  The better design is for a metal ball and a plastic cup.

Many patients have had to have dangerous hip revision surgery.  This involves removal of the DePuy hardware and insertion of new hardware.  A revision surgery may be more extensive than the initial hip replacement, and some patients have required further surgeries beyond the revision. 

As a result of these problems, DePuy made a voluntary recall on August 24, 2010.     

Not all DePuy implants are defective.  DePuy Orthopaedics, Inc., is a major supplier of hip implants and has made other satisfactory types of artificial hips.  DePuy is a division of Johnson & Johnson.

The following DePuy artificial hips are involved:

1. ASR XL Acetabular System.  This has been distributed worldwide.
2. ASR Hip Resurfacing System.  This system has been licensed outside the United States.

You should consult an attorney immediately if

• You are experiencing pain and other illnesses connected to your DePuy hip implant; or
• You have been told by your orthopedist that your problems are caused by a defective DePuy hip; or
• You are either scheduled for hip revision or are contemplating the surgery; or
• You have had your DePuy device removed and have undergone a full hip revision.  

As with all cases we urge clients to contact an attorney immediately so that there is no issue as to the timeliness of commencing suit.

Please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 1/9/12, www.seitelman.com.

$200,000 Settlement for Hip Fracture

We obtained a settlement of $200,000 where an elderly client fell while entering a mini-bus.  She sustained a hip fracture requiring surgery.

Defendant is a private shuttle service serving the Borough Park, Flatbush, Midwood, and Kings Highway communities of Brooklyn.  The client was being picked-up along with other passengers at 13th Avenue.  She claims that the mini-bus moved about one foot as she was entering.  She fell onto the sidewalk.

The driver testified that he did not move and that the client lost her balance on entering.  The driver stated that his vehicle was in park and that he had his foot on the brake as she was entering.

There was also an issue as to whether the bus had a safety interlock which would have prevented the bus from accelerating when the doors were open.  It was defendant’s position that even if the driver had tried to switch gears and accelerate, which he denies, the interlock would have prevented the vehicle from moving forward.

There was only one non-party witness to the incident.  He  was uncooperative initially, but after extensive investigation we were able to get his statement and eventually a deposition.  He stated that the bus moved about one foot.

If you have been involved in a bus accident, please feel free to contact me for a free consultation at 800-581-1434 or contact@seitelman.com.

Mark E. Seitelman, 12/29/11, www.seitelman.com.

Getting a Recovery for Cruise Ship Accidents; Some New Issues, Part II

As we discussed in Part I, here are some new issues in cruise ship accidents:

I.  Statue of Limitations

It is imperative that the injured person contact an attorney immediately because there are very short time deadlines, such as

1. A one year statute of limitations to file suit; and
2. A six month deadline to file a notice of claim with the ship line.

The foregoing provisions are contained within the cruise ticket, and it should be saved for review by the attorney. 

II.  Forum Selection

 The cruise ticket contains a forum selection clause which means that a lawsuit must be brought in a particular jurisdiction.  For example, most cruise tickets require that suit be brought in the courts where the cruise line maintains its headquarters.

III.  Liability for shipboard Medical Care

All passenger ships have a medical office staffed by a doctor or nurse or both.  Generally, the cruise line contracts with a separate company which runs the ship’s “hospital” for a profit.  In those instances cruise lines have denied responsibility for medical malpractice on the ground that the negligence was committed by an independent contractor.

Courts have held the shipowner liable under a number of theories, such as negligent hiring and retention of the medical vendor, apparent agency, and joint venture.

IV.  Shore Excursions

Typically, shore excursions are conducted by outside vendors, such as tour companies located at the localities visited.  Although the shore tours are marketed by the cruise line, generally, the ship will deny liability on the ground that the tour company is an independent contractor and would be solely liable for negligence.

There have been cases where the shipowner has been found liable for the negligent hiring, screening, and retention of the tour operator.

As we have oft-repeated, if you are injured in a cruise accident, please contact a lawyer immediately.  Please feel free to call us at 800-581-1434 or write to info@seitelman.com for a free consultation.

Mark E. Seitelman, 12/27/11, www.seitelman.com.

Getting a Recovery for Injuries on a Cruise Ship; Some New Issues

Here are some issues that we did not address in our previous posts on cruise ship accidents.

I.  Sexual Assault

There have been widely reported incidents where a crew member sexually assaults a female passenger.

Even though an employee’s acts are outside of the scope of employment, the ship can be strictly liable. 

II.  Federal Admiralty Law and State Law

The general maritime law applies to cruise ship injuries.  Federal admiralty law may be applied whether the accident occurred on shore or aboard the vessel (either docked or at sea) as long as it occurs during the course of the cruise.

The general standard of conduct against the ship owner is “reasonable care under the circumstances.” 

Depending upon where the accident occurred, state law may be used to supplement the general maritime law.  For example, if the passenger tripped and fell in the Carnival Ship Terminal in Brooklyn on the way to registering and checking-in, the law of New York would be applicable. 

III.  Releases

Many cruise lines require passengers to sign a release before engaging in a certain activity, such as trap shooting.   The cruise line is prohibited from requiring the passenger to release the owenr from liability for personal injury or death caused by the negligence of the vessel or its crew.  It is also prohibited from having the passenger waive the right to trial by jury.

If you have been injured in a cruise ship accident, please feel free to contact me for a free consultation at 800-581-1434 or letters@seitelman.com.

Mark E. Seitelman, 12/22/11, www.seitelman.com.

Getting a Recovery for Elevator Accidents

Yesterday, in a very sad news story, a woman was killed in an unusual elevator accident.  See story here.

The woman was coming to work at her office on Madison Avenue.  She was in the lobby and was entering an elevator.  She was halfway in the elevator cab, with one foot still in the lobby, when suddenly the elevator quickly ascended with its doors open.  This lady was crushed between the elevator and the shaft wall.

There is no question that the elevator grossly malfunctioned.  It appears that the interlock device did not work.  An interlock would have prevented the elevator from going up or down while its doors are open.  

Generally, a personal injury lawsuit will be against both

1. the building owner; and
2. the elevator maintenance company.

The building owner has a non-delegable duty for the maintenance and operation of the elevators.  Generally, building owners hire elevator companies on yearly contracts to maintain and repair the elevators.  Building owners do not have the technical expertise, and it is uneconomical to keep an elevator mechanic on payroll.  Therefore, owners routinely hire elevator companies to perform regular maintenance and repairs.  

In addition to a lawsuit, an injured person may have rights under workers’ compensation if he were injured in the course of his employment.  Entering and leaving the workplace, i.e., the office building, would be covered as a workplace injury.

If you have been injured in an elevator accident, please feel free to contact me for a free consultation at either 800-581-1434.

Mark E. Seitelman, 12/15/11, www.seitelman.com.

Getting a Recovery for Your Injuries Through Mediation

In today’s New York Law Journal Justice David B. Saxe wrote an extensive article endorsing mediation for divorce cases.  In essence the judge supports mediation as a less costly and faster, more efficient  way to resolve a divorce.  He notes that many lawyers discourage mediation because it means a faster end to hostilities and lesser legal fees.

Although we do not handle divorces, we support this viewpoint for personal injury and property damage cases.  Mediation is a less expensive and quicker way to settle cases.  We have seen this in our own experience.  Where possible, we mediate.

Don’t take our word for the benefits of mediation.  Here is what Abraham Lincoln, the lawyer, wrote:

Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often the real loser–in fees, expenses, and waste of time.  As a peacemaker the lawyer has the superior opportunity of being a good man.  There will still be business enough.

Mark E. Seitelman, 11/25/11, www.seitelman.com.