Mediation/Settlement Lessons From An NBA Trade

basketballI’m not a huge NBA fan, but over the last few days, I have been listening to a variety of talk show hosts discuss the trade of former NBA MVP Derrick Rose from the Chicago Bulls to the New York Knicks in exchange for a few of the Knicks’ players.

Normally, that wouldn’t be all that news-worthy, especially in the lawsuit context.  But one of the commentators made a point that was familiar to me.

When this commentator was asked who got the better part of the trade, the Bulls or the Knicks, the commentator laughed and said, “You know, both of the fan bases are pretty unhappy with the trade, which tells me that it was probably a pretty fair trade.”

I laughed to myself when I heard that because that’s advice I find myself giving a lot of clients.  In most settlements, the plaintiff settled for less than they really wanted, and the defendant paid more than they really wanted.  And I usually tell clients that when that happens, it’s a pretty good indication that the settlement is a fair settlement.

Now, that’s not to say that we never have a negotiation or settlement where we feel like we’ve been overly-compensated, but it’s rare — insurance companies aren’t in the business of just handing out money.  And in NBA or NFL or MLB trades, there are some trades where you can look at the deal and know that one side was really coming out much better than the other.

But more often than not, in most trades and in most settlement negotiations, both sides usually end up walking away a little disappointed, and that’s usually a signal that it was probably a pretty fair result.

 

Posted on: June 24, 2016 | Tagged

Texas Farm Bureau & Texas Department Of Insurance Trying To Take Away Important Rights

Insurance claim forme

I’ve seen a lot of questionable conduct by insurance companies, but the latest proposal may take the cake.

Texas Farm Bureau is now petitioning the Texas Department of Insurance to allow it to offer a “discount” to its home insurance customers in exchange for customers giving up their rights to a fair trial of any dispute.

But the good folks at Texas Watch have been trying to find out the details on this backroom deal and have come up with some details about the proposal.

First, the proposal tries to take away customers’ rights by requiring mandatory arbitration clauses.  Under the provision,

all disputes would go to mandatory, binding arbitration;

  • the insurance company has already selected the arbitration company (in essence, the private judge hearing your case);
  • the insurance company pays for the judge; and
  • the results are secret.

Gee, if your dispute is decided by a judge hand-picked by the insurance company and paid by the insurance company, I wonder how the results will come out?  You already know the likely answer to that.  That’s why several states forbid these types of arbitration clauses in insurance policies.

But what do you get for giving up those rights?  According to the proposal, homeowners are supposed to get a discount on their premiums.

But lo and behold, what did Texas Watch undercover when they filed open records requests with the Texas Department of Insurance?  That the “discounts” appear to be conveniently equal to the amounts that Texas Farm Bureau has already raised rates.  These types of bogus discounts — raising the price and then saying you’re offering a discount — would likely be illegal in most other contexts.  But here, there’s a real risk that the Texas Department of Insurance will approve them.

And don’t think this is just about Texas Farm Bureau.  If this type of conduct is approved by the Department of Insurance, other insurance companies will likely follow suit. Yours could be next.

Posted on: June 20, 2016 | Tagged

Playground Concussions Are On The Rise

brainOne of the recent headlines on Yahoo News was a story that playground concussions are on the rise.

You might be surprised to find that I think this is great news.  Why?

I don’t think the actual number of concussions are rising.  Instead, I think parents and school nurses and such are getting much better at looking for and diagnosing concussions.

This diagnoses is important.  I not only see kids affected with brain injuries in my practice, but I’ve watched my own kid struggle with a concussion.

These are serious injuries that need to be treated seriously.  But they can’t be properly treated if they’re not diagnosed.

There are also potential legal aspects in these claims.  For example, depending on the circumstances, a playground injury may give rise to a claim or lawsuit against:

  • the party that owned the playground
  • the party who designed the playground
  • the party who built the playground
  • the party who was responsible for maintaining the playground
  • the party who made modifications to the playground

If your kid is hurt on a playground, the first order of business is to make sure they get the care they need.  After that, if the problems are serious, then talk to a lawyer to discuss your options.

Another Tragic Wreck on Highway 290

This afternoon, there was a terrible wreck on Highway 290 in McDade.  Details are still coming in, but it appears that four people have died, including two children.

Unfortunately, this is only the latest tragedy along Highway 290, which seems to be becoming more and more dangerous.  For example, three people were killed about a month ago about one mile from the site of today’s accident.

And we represent a client involved in a fatal collision on Highway 290 just down the road in Giddings.

I guess we shouldn’t be surprised by the increasing number of serious accidents on Highway 290.  Both Houston and Austin are going in population, and Highway 290 remains one of the two major arteries going back and forth between the two cities.

Unfortunately, the roadways don’t seem to be keeping up with the population growth.  One result will be the increasing number of wrecks that we’ve been seeing.

For now, the best advice remains the same advice applicable everywhere:  (1) drive safe speeds; (2) avoid distractions in your car; and (3) lookout for others.

Lessons From A Self-Driving Car Wreck

Last week, Google reported on a new wreck involving one of its self-driving cars.  Google is trying to sell this as the first wreck involving its self-driving cars, but reports of other wrecks are out there.

Regardless, a new article from a computer/tech writer brings out one of the important issues with self-driving cars — you can’t program intuition.

And tuition is really important when driving.  My daughter is about to turn 16.  As we’re teaching her to drive, we spend a lot of time talking about anticipating what’s going on around us.

Intuition plays a big part of that.  You might not think that, but we all know it.

Some of it is obvious.  We can see a driver who might be drifting in his lane or driving aggressively, all indications that we need to watch them.  Or we can be driving downtown and see the pedestrians on the corner and ascertain whether they’re paying attention or whether they’re staring at their phones.

But it’s even beyond that.  In many instances, drivers develop intuition that helps the drive more safely even when we don’t know it.    We’re able to see a driver and, not really knowing why, know that we need to watch out for them.

Computers can never do that.  As the author writes in the article:

Yet, the dirty little secret here is that, while artificial intelligence has many advantages over a human driver (it can look in all directions at once, it can use multiple sensors, it never gets distracted), it could be another 20 years before robots can muster something that humans posses even from a very young age.

I’m talking about intuition, of course. It has a few other names — a “feeling” or a vibe, a sixth sense, or an awareness that’s incredibly difficult to program into a robot.

There are a lot of great advancements in technology that have made driving safer:  backup cameras, lane departure warnings, blind spot warnings, automatic braking when you might be close to a wreck.  And I appreciate them and am glad for them having seen the devastation that wrecks can cause, but I’m very skeptical about self-driving cars and the problems that they might bring.

 

 

Unprecedented Actions: HoverBoard Industry Is Deemed Unsafe

Last Thursday, the Consumer Product Safety Commission took the unprecented step of sending a letter to all hoverboard manufacturers, importers and retailing telling them that all hoverboards are potentially unsafe.  One major manufacturer, Swagway, has also told people who own its hoverboards to quit using them until they are deemed safe.

This is a shocking turn of events.  Two months ago, hoverboards were among the most popular Christmas gifts, and now the entire industry is in a bit of turmoil.

There were a couple of things that were very interesting about this to me.  First, in the letter, the CPSC declares that no manufacturer in the industry meets the CPSC’s safety standards.  This is amazing.  I can’t think of another instance off the top of my head where the government has declared an entire industry unsafe.

Second, the reason provided by the CPSC was also interesting.  The CPSC declared hoverboards unsafe because of their risk of fires caused by the batteries.  This is certainly a known risk, but in my mind, not the greatest risk.

For me, the most significant risk from hoverboards is the risk of falls and related injuries.  There have been hundreds of reports of people falling off of their hoverboards and incurring significant injuries, including numerous brain injuries and fractures of various bones.  Those types of injuries have the potential to be permanently life-altering.

I don’t know how this will turn out.  At some point, after more testing is done, perhaps the government will declare that some hoverboards are safe.  But we’re clearly not at that point yet.

 

 

Another Central Texas Wrong Way Driver Wreck

Early this morning, a driver driving the wrong way on IH 35 near Kyle (where I grew up) caused a wreck that killed four people and injured two others.

In this instance, the wrong way driver was driving southbound in the northbound lanes of IH 35 at the Kyle Parkway exit.  Unfortunately, the car hit a minivan, killing four occupants of the minivan and injuring two other children in the minivan.  A third vehicle was also involved in the wreck.  KXAN has a story on the wreck that I’m embedding below.

Wrong Way Driver Wrecks Happen More Often Than You Think

I feel like a broken record saying that it seems like these types of wrecks should never occur, but unfortunately, they’re all too frequent.  I’ve been writing about these types of wrecks in the Austin area for years. I’m linking prior posts below that talk about ten or so of these wrecks in the last few years.

What Causes Wrong Way Driver Wrecks?

These types of wrecks often share a few common characteristics: they almost always occur at night and they almost always involve the use of alcohol and/or drugs.

Another factor in daytime wrong way driver wrecks is the age of the driver.  Daytime wrecks are much more likely to be caused young drivers (those without much driving experience) and elderly drivers (who might be confused by complicated on-ramp designs).

What Can Be Done To Prevent Wrong Way Driver Wrecks?

One of the reasons that these wrecks are so tragic is that there is often very little that the victim driver can do.  Obviously, if you see someone driving the wrong way, the safest thing to do is pull all the way over.  But frequently, there isn’t enough warning to do that.

From a road design standpoint, road designers can help by better on-ramp design.  A common factor in these wrecks is that impaired drivers get on the highway at confusing on-ramps.

A second thing that road designers can do is to lower the “wrong way” signs on the ramps.  Studies have shown that lowering the signs to eye level for most drivers is an effective way to help reduce these wrecks.

Additional Information On Wrong Way Driver Wrecks

For more information, refer to some of my many other posts on wrong way driver wrecks.

 

Posted on: February 19, 2016 | Tagged

New Study Explains Why Rest Is Key Following A Brain Injury

brainWhen my son suffered a concussion two years ago, his doctor told him the key was rest.  For this then 11 year old, that meant laying down, with no reading, no television, and no video games.  Just rest.

Rest has long been thought to help following a brain injury, but recently, a new study came out explaining why that was the right advice.

The study, which examined trauma in the brains of mice, found that when there is single, mild incident, the mice lose 10-15 percent of their neuronal connections in the brain, but there was no accompanying cell death.  When the mice rested for three days, almost all of the connections came back, healing the brain.

However, the study found that without rest, when additional events occur, the neuronal connections don’t heal and can become permanent.  Thus, the prescribed rest is critical to offer the brain an opportunity for any mild injuries to heal.

One issue with the study is that it is only based on very mild injuries.  In more severe cases, a one-time incident can cause cell death and have long-term consequences even if the victim tries to take the rest needed or prescribed.

If you or a loved one has suffered a brain injury as a result the conduct of someone else, please call us at (512)476-4944 so we can help you.

 

 

 

“Independent” Medical Exams Going Rogue

A constant problem that we face in cases are doctors who perform “independent” medical exams.  In many cases, insurance companies hire doctors to review our clients’ medical records or to have a one-time exam of our clients and then write a report on how bad our clients are hurt and/or whether our clients’ injuries are related to the wreck or other event that is the basis of the lawsuit.

Oftentimes, these doctors make hundreds of thousands of dollars per year doing these exams.  It’s no surprise then when the reports always come back supporting whatever the insurance company or the insurance company lawyer wanted the report to say.

I’ve written about this problem before, including:

Now, I’ve been alerted to a disturbing blog post by a Michigan personal injury lawyer, Steven Gurstein, describing his experience with an “independent” medical exam.  In the post, entitled “Sticks and Stone and….attorney disbarment. Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury cases from the public”, Mr. Gurstein outlines his issues with Dr. Rosalind Griffin, who performed an exam on one of his clients.

I can find a number of posts about abusive medical exams on lawyers’ blogs, but Mr. Gurstein’s stands out for a couple of reasons.

Mr. Gurstein had his client’s exam video-taped, and he went to great lengths to explain in his blog post many of the alleged inconsistencies between what happened in the exam and what the doctor reported.  It’s fascinating to read and is a good primer on the types of problems that you can see in these exams.  I would recommend it for anyone interested in the issue or anyone who might be undergoing an exam.

Dr. Rosalind Griffin was apparently upset with Mr. Gurstein, and Dr. Griffin reportedly filed a grievance against Mr. Gurstein.  That is shocking.  I don’t know the intricacies of Michigan ethics law, and I don’t even know the substance of any allegation (I didn’t read the complaint that Mr. Gurstein linked), but if that happened here in Texas, given what is reported, I would think it was a clear abuse of the process.  It’s the type of thing that I would expect to be summarily dismissed by the bar here.

Even more shocking is that Dr. Rosalind Griffin is apparently on the Attorney Discipline Board that might hear Mr. Gurstein’s case.  How does that happen?  In Texas, we do allow non-lawyers to serve on our grievance hearings, but I can’t imagine that anyone who is as intimately involved in the litigation process as Dr. Rosalind Griffin seems to be, should be on the committee.

I don’t know what will happen to Mr. Gurstein, but if what he’s reporting is truthful, it seems like this is the type of information that we want the public to see, and not something that should be hidden.

Warren Buffett On Car Wrecks: If cars are better, and they clearly are, drivers must be worse

Damaged Car Involved In Traffic Accident

Damaged Car Involved In Traffic Accident

Safety experts at the National Safety Council, and insurance companies such as Allstate and Geico, were surprised by the 14 percent increase in fatal auto accidents during the first half of 2015.Geico is part of Warren Buffett’s Berkshire Hathaway group. Figures for the second half haven’t yet been compiled.

Insurers say drivers could be facing a period of rising premiums. Some companies are reacting to the statistics with rate increases and others are expected to follow.

What caused the accidents?

Buffett’s statement about drivers being worse is not quite on target, though driving longer hours on trips and on crowded roads can be stressful.

* Roadways were more dangerous in 2015 as travel increased to a record 1.54 trillion miles through June, according to the Federal Highway Administration. The average number of miles individual Americans drove remained at the same level as in 2007, but there were more people driving.

* Low gasoline prices, the lowest since 2010, encouraged more travel.

* The low unemployment rate of 5.1 percent meant people could afford to take more trips, according to the American Automobile Association. Allstate president Matt Winter told analysts that increased vehicle complexity could be a factor, but it’s typical for people to drive more and have more accidents as the economy rebounds from a recession.

What you can do?

Traditional cautions are even more important on crowded roads: Take it easy and don’t be aggressive. Allow more time to reach your destination. Drive defensively. Be ready for another driver to make a mistake.

 

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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