Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12, www.seitelman.com.

Getting a Recovery from Injuries from Domestic Animals; New York’s Unique Rule

New York is unique regarding recovery from injuries from a domestic animal.

New York requires that the injured person prove that the animal had prior, violent propensities.  It is of no moment if the animal’s owner were negligent.

This rule has been repeated in two recent cases from the Appellate Division, Third Department.

In Hastings v. Savue,  plaintiff was injured when her car collided with a cow.  The cow had wandered from defendant’s farm, and the injured plaintiff claimed that the owners were negligent in allowing the cow to wander onto an adjacent highway. 

The court dismissed the case on the basis that there was no showing that the cow had vicious or abnormal propensities that caused the accident, such as a history of escape.  The court noted “discomfort” with the rule, but, nonetheless it was constrained to dismiss the case based on the law. 

In Bloomer v. Shauger, a distraught horse injured plaintiff.  In an unusual set of facts, Whiskey’s companion horse of more than 20 years, Topper,  was unable to stand and had to be put-down.  Defendant put-down Topper in view of Whiskey.  During the burial, Whiskey was distraught and upset.  It was pacing back and forth searching for Topper.  Plaintiff, a next door neighbor, heard the commotion and agreed to help.  Plaintiff tried to comfort and pet Whiskey.  The owner went to get a lead line.  Whiskey was calming, but the owner reappeared with a lead line, and Whiskey abruptly pulled-back his head.  Plaintiff’s finger was injured when it was caught in the halter.

The court dismissed the case.  It noted that there is no liability for injury from a domestic animal unless the animal displayed prior, violent propensities.  The court noted that there may have been negligence by the owner in allowing Whiskey to witness the death and burial of Topper, however, there still must be proof that the animal had a violent history.  Whiskey’s nervousness or agitation before the accident was not evidence of prior, violent propensities.  In this case, the horse’s conduct was typical for a horse. 

It is noteworthy that the courts treat large, domestic farm animals in the same manner as household dogs and cats.

If you have been injured in an animal attack, please feel free to contact me for a free consultation at either 800-581-1434 or letters@seitelman.com.

Mark E. Seitelman, 4/16/12, www.seitelman.com.

Getting a Recovery from a Bankrupt Corporation; Good Luck!

If you have had the misfortune to get injured by a major corporation in bankruptcy, we have a bit of advice:  good luck!

We have a score of clients who have been injured by A & P, Food Emporium, Pathmark, St. Vincent’s Hospital, and Interstate Bakeries.  All of theses defendants are bankrupt even though they are still doing business (with the exception of St. Vincent’s).  Our clients injured by these corporations have little possibility of a recovery.

A case example is Hostess Brands.  We recently read that Hostess Brands, formerly known as Interstate Bakeries, has filed for bankruptcy protection for a second time on January 11, 2012.  Hostess makes many of America’s iconic breads and cakes, such as Wonder Bread, Twinkies, and Ding Dongs.

It seems that Hostess Brands is unable to compete.  It seeks further relief from its obligations.  Essentially, it wants to pay its debtors and retired employees less.  Otherwise, it threatens to liquidate the company.  

Its move to file for a second bankruptcy has delayed all settlements.  We had two clients injured by Interstate Bakeries trucks back in 2004, and we settled their cases almost six years ago.  We have yet to see a dime! 

Therefore, if a corporate defendant goes bankrupt, your recovery may either be delayed greatly or vanish. 

It is highly ironic that an injured person has less of a chance of getting a fair recovery from a bankrupt A & P than from a bankrupt Mom & Pop Grocery, Inc.   This is because A & P self-insures.  In other words, it has no insurance, and it can settle for pennies on the dollar.  In comparison, if Mom & Pop has an insurance policy, it is more likely that the injured client will get a fair recovery.

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

Mark E. Seitelman, 4/6/12, www.seitelman.com.

Getting a Recovery for Bicycle Injuries; Get a Police Report

The New York Police Department has started to track and report bicycle accidents in the same manner that it writes-up motor vehicle accidents.

This is good news for injured clients.

First, the NYPD and the Department of Traffic can study bicycle accident patterns regarding present and future bike lanes.  It will also allow study of the interaction of cyclists with pedestrians.  This will help traffic planning.

Second, this is good news in that injured bicyclists and pedestrians will have their accidents recorded in a detailed manner.  As we discussed many times before regarding motor vehicle accidents (see our prior post), the police report will prove the happening of the accident as well as identifying defendant.  

Therefore, if you have been injured in a bicycle-bicycle or bicycle-pedestrian accident, be sure to call the police to the scene so that a full accident report can be taken.

If you have injured in a bicycle accident, please feel free to call me at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/6/12, www.seitelman.com.

Getting a Recovery for Work Place Injuries; Workers’ Compensation Lost Income Rates

People injured at work are entitled to lost income under workers’ compensation.

These are the maximum weekly income rates:

For accidents occurring within these dates:

7/1/07 to 7/1/08            $500.00

7/1/08 to 7/1/09            $550.00

7/1/09 to 7/1/10            $600.00

7/1/10 to 7/1/11            $739.83

7/1/11 to 7/1/12            $772.96

For example, if your accident occurred on August 1, 2007, your maximum weekly income rate would be $500.   If you accident occurred on July 10, 2010, your maximum weekly rate would $739.83.

Unfortunately, the weekly rate does not increase during the worker’s life.  In other words, a person receiving $500 per week based on an August 1, 2007, accident would receive the same rate today as well as the future.  

The rates effective July 1, 2012, have not been set by the Workers’ Compensation Board.  The rates are based on the weekly average wage of New Yorkers.

Sadly, there has been no similar increase in lost income for no fault and state mandated disability.  In an automobile accident, the no fault income rate has been fixed at the lower of either $2,000 per month or 80% of the person’s monthly wages.  On the disability side, New York State disability is still set at the shockingly low rate of $170 per week. 

Ironically, the workers’ compensation rates were changed to keep-up with no fault.  The compensation rates had lagged behind no fault’s rates, and working men and women could not survive on the low weekly wage of $400 per week under the old law.  Now, the compensation rate exceeds no fault.  We look to the legislature to correct this inequality of lost income for victims of accidents.     

If you have been injured in an on-the-job accident, please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 8/23/12, www.seitelman.com.  

I would like to acknowledge our workers’ compensation counsel for providing this information.  Thank you, Robert Bergman of Fogelgaren, Forman & Bergman of New York City.

Getting a Recovery for Your Injuries; the ERISA Healthcare Lien

The injured client’s attorney has two jobs.

First, he must obtain the best monetary recovery possible based on the facts and the law.

Second, he has to get as much as possible of the settlement into the client’s hands.  He has to either fight or negotiate liens.  Such liens include Medicare, Medicaid, Public Assistance, workers’ compensation, and private health insurance.

Once an injured client gets a settlement, governments and insurance companies swarm around the money like a flock of buzzards over a dead animal.  These liens pick away at the settlement.  Sometimes, the lien holders seek to leave nothing to the client.

The unfairness of liens, particularly healthcare insurer liens under the ERISA law, is discussed in Professor Roger M. Baron’s excellent law review article, “The Revictimization of Personal Injury Victims by ERISA Subrogation Liens,” 45 Creighton Law Review 325 (2012).

Professor Baron is correct.  The injured client is “revictimized” by the healthcare insurer’s lien.  The health insurer has done nothing to get the recovery, but it stands ready to take money out of the client’s hands.  Sometimes it wants the entire settlement. 

There is hope.  Public Justice, the public interest law firm, took-up the injured clients’ cause in the recent case of US Airways, Inc. v. McCutchen,  663 F.3d 671 (3d Cir. 2011).  In this case the injured client’s health insurer sought the entire net settlement to pay-back its alleged lien.  The client, who was very seriously injured, would have received nothing!  The court ruled that this is inequitable, and the trial court must hold a hearing as to whether the health insurer is entitled to any share of the net settlement.

We see the McCutchen case as a first victory on the war on liens.

Mark E. Seitelman, 3/21/12, www.seitelman.com.

Getting a Recovery for Cruise Ship Accidents; Are Cruise Ships Safe?

Are cruises safe?

The answer is a qualified “yes.” 

The cruise ship industry says that safety is its main concern.  The Costa Concordia wreck will be thoroughly investigated.   Emergency drills will be increased.

However, the Costa Concordia sinking revealed that the cruise industry has much to do.  

First, crews must be trained to handle the worst ship emergencies, such as fire and shipwreck.  At present, the majority of the crew are actually hotel workers, such as maids, busboys, waiters, and cooks.  They receive scant safety training.   They do not have the same safety culture as former navy sailors and  merchant marines who know the perils of the sea.  This culture and level of training must be imparted to the hotel staff.

Second, each major cruise ship needs a portion of its crew dedicated to ship safety and evacuation.  That means that these employees stand ready for these emergencies, and they have no other duties.  They should not be a waiters or maids pulled into service in an emergency.

The Costa Concordia was an extraordinary event due to extraordinary carelessness.   Although shipwreck is rare, the cruise industry must do more to prevent furture disasters.

Mark E. Seitelman, 3/19/12, www.seitelman.com.

Getting a Recovery for Your Accident Case; Hiring a the Right Lawyer and the Right Doctor Is Crucial

It is crucial to hire a reputable and honest lawyer and doctor for your accident case.  If you do not, you may lose your right to recover.  

        If it is too good to be true, . . .

This was brought home yesterday when the U.S. Attorney for the Southern District of New York announced indictments on a No Fault ring involving lawyers, doctors, medical offices, and “runners” working out of Brighton Beach, Brooklyn.  See the story here.  We have seen similar sweeps and arrests in the past.

The end-result to the honest client is that he may forfeit his right to recover. His case will be classified as a “fraud” by the insurance company.  It will be marked “NO PAY”.  Furthermore, there will be a problem in getting medical records because those records will be confiscated by the prosecutor as evidence.  The client’s doctor who has been convicted cannot set foot in a courtroom.  Consequently, the client cannot prove his injuries.

The injured client should be aware of the hallmarks of an illegal lawyer or medical operation:

• the injured client is offered money by a “runner” to come to a doctor or lawyer.  Often the payoff will be $1,000+.  Sometimes, there will be separate payments to the injured client from the lawyer and doctor!
• the client is approached either in the hospital or shortly thereafter by a “runner” who will steer the client to either a doctor or lawyer or both.
• the client never sees the responsible doctor even though the doctor “signs-off” on all reports and billing.  The client only sees medical assistants and therapists.
• the client is asked to sign “sign-in” sheets in advance so as to “save time.” 

If you are approached by a runner, RUN.  If you are offered a few bucks to sign-up with a doctor or lawyer, realize that they may not be in business when you need them.  You will be unable to prove your injury.

In short, go to an honest and reputable lawyer and doctor. 

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

Mark E. Seitelman, 3/2/12, www.seitelman.com.

Getting a Recovery for Death and Injuries from the Costa Concordia Shipwreck

The shipwreck of the Costa Concordia will go down in history as one of the most avoidable maritime accidents. 

It is unclear whether the captain or the owners decided to sail too close to shore.  It was to “salute” a former executive living on the island.  However, the negligence of doing this is clear, obvious, and gross.  It may even amount to criminal negligence.   

If you have been injured it is imperative to contact an attorney immediately because suit must be brought in Italy.

Ordinarily, most cruises dock at an American port, therefore, a lawsuit can be brought in the United States.  However, the Costa Concordia travelled solely in Italy.  There is no basis to bring suit in the USA although Costa does business here. 

Therefore, Italian lawyers must be hired to bring suit in Genoa, Italy, where Costa maintains its headquarters.  Pursuant to the cruise ticket, suit must be brought where Costa has its main office.

As an American lawyer, licensed in New York, I cannot bring suit in Italy.  However, I do work with America’s top cruise ship attorneys who will be working with Italian counsel.  We will refer injured clients to our Florida counsel who will work with the Italian lawyers.  

Although there is nothing to prevent a client from finding his own attorney in Italy, we do not recommend this.  Our cruise attorneys have an outstanding reputation, and they will work with Italy’s best.  Furthermore, the legal fee will remain the same;  the fee will not be doubled to pay both American and Italian counsel.  Only one legal fee will be paid.

If you or a family member has been injured on the Costa Concordia, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 2/20/12, 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.