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Jason Barney

The plaintiff alleges she gave in to the defendant priest’s sexual advances after confessing her marital difficulties to him.  She alleges the priest assured her the sex was “ordained by God” so she thereafter engaged in intercourse with him.  This, of course, is all due to the negligence of the local Catholic diocese according to her suit and not her own poor judgment in falling for such a lame pickup line.  (“Confession Obsession?”, The Smoking Gun, Oct. 29).

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Aw, nuts!

by Jason Barney on October 29, 2008

Or so the defendant might say about the $185K verdict in this case (reduced by 50% due to the plaintiff’s comparative fault).  She slipped and fell at Texas Roadhouse allegedly due to peanut shells and whatnot on the hardwood floor.  Allegedly, restaurant patrons were encouraged to discard shells on the floor, which, according to my experience with a similar establishment in a different state, highlights the casual western theme.

From a claims and loss control perspective encouraging patrons to throw debris onto hardwood floors just seems like a bad idea because I doubt whatever “atmosphere” is created thereby increases revenue enough to offset the costs of defending this or similar claims, and sometimes paying the verdict.  (“Jury’s $185K Award More Than Peanuts for Restaurant”, On Point News, Oct. 27).

Hello, and thanks again to Walter Olson for welcoming me back to help fill in this week. His prior post reminded me of this surveillance tape I’ve kept after all these years simply for comic relief.

The tape shows one customer casually stroll through the door without incident all the while another intending customer in quite the hurry tries to run in–he thought–through an open door. Instead, it was the plate glass adjacent to the door. He smacks into it bowing the glass and then storms into the store while the other customers gawk at him. The original clip was without sound but I couldn’t resist jazzing it up with Gonna Fly Now from Rocky.

Here’s the Overlawyered part: he made a claim against the store owner; and, the claim was paid as a compromise. Part of the reason why is visible on the video—can you see it?

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Or, so says a family’s suit against a funeral home and crematorium.  It never ceases to crack me up how some people can take a modest, legitimate claim and blow it up into a claim for financial independence.

53-year-old Pamela Grant died unattended, was autopsied and later cremated despite a fax by the funeral home to the crematorium instructing it to hold off.  You see, the family says they wanted to view the body before cremation and place mementos with it.  They were deprived of that chance and filed suit against the funeral home for $3M and the crematorium for $450K.

Now, there’s certainly a legitimate complaint here but I see little to justify the sky-high demand.  Naturally, the plaintiffs’ attorney is high-minded saying “his clients sued because they wanted to send a message to the businesses that their behavior was unacceptable.”  Translation: it’s not about the money.

The jury got it right, awarding $48K from the crematorium to the Grant children and nothing from the funeral home.  That’s a far cry from the $3.5M demand and right in line with what the crematorium’s defense counsel suggested to the jury.  (“Missed goodbye to cost crematory, not Oregon City funeral home”, OregonLive.com, Aug. 15).

I’ve finished my week as guest blogger and will pass the torch back to Walter Olson.  Walter, thank you again for the opportunity here on Overlawyered.

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Ungoogle me, please

by Jason Barney on August 17, 2008

Seattle attorney Shakespear Feyissa was accused of attempted sexual assault while attending Seattle Pacific University in 1998.  He was never charged with a crime and naturally, not convicted.  But since the allegations were covered in the school paper’s online edition they are cached in Google and easily uncovered for anyone who searches his name.

SPU agreed to remove the story from the school paper but when administrators approached the student editors they said no way.  Chris Durr, editor of The Falcon Newspaper said:

We explained to them, if they wanted to start down a path of removing historical archives and pulling it from the public sphere, what they’re doing is censorship.  We basically said, sorry, we have principles in journalism that don’t allow us to put stuff in the memory hole and pretend it never happened.

(“Seattle attorney finds that the Internet won’t let go of his past”, Seattle Times, Aug. 15).

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This is the silliest claim I’ve seen in a long while.  The shooting victim’s family filed a claim against the school their son attended because it allegedly failed to enforce the dress code.  The “feminine-dressing” boy was thusly singled out for abuse.  (“Family of shooting victim files claim against Huenume School District”, VenturaCountyStar, Aug. 14).

Update: I revised the title for accuracy.

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August 14 roundup

by Jason Barney on August 15, 2008

  • 47% of those polled believe traditional media should offer equal time to opposing viewpoints.  Although 57% polled say blog sites should not have to allow other viewpoints, 31% believe the government should “force” them to.  Can you believe that?  In a related story, help me in welcoming John Edwards as next week’s guest blogger.  (“47% Favor Government Mandated Political Balance on Radio, TV”, Rasmussen Reports, Aug. 14).
  • Speaking of John Edwards–is he the new Bill Clinton?  Some may think he’s the right person to carry on his legacy.  (“John Edwards is the new Clinton, Spitzer, Craig”, MiamiHerald.com, Aug. 13).
  • I thought the law was well-settled that you could say ignorant, mean and hurtful things (and, shame on those who do).  But, anyway the Oregon Supreme Court unanimously agreed.  (“Oregon court says racist, insulting speech is protected”, OregonLive.com, Aug. 14).
  • Also from Oregon–a young man’s family filed a wrongful death lawsuit in the police shooting death of their son.  “We were forced to go ahead and file this to shed light on the events of that night” his mother said.  Shed light?  So, what’s with the $14M demand?  And, what’s this about him threatening police with a knife? (“Tigard teen’s family sues for millions in fatal police shooting”, OregonLive.com, Aug. 13 & Sep. 17 ’06).
  • Let the plaintiff’s bar go to bat for you on this one–after a Utah school learned of a bat infestation it partnered with the county health department to exterminate them.  Meanwhile, the district made intercom announcements asking students who may have had contact with bats to seek assistance, and made voluntary payments to seven students for rabies vaccinations.  A student’s mother sues despite no evidence her son contracted rabies or suffered any other injury.  (“Lehi Mom sues Alpine School District over bats”, Deseret News, Jul. 17).

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The flight attendant sought a whopping $405K for the alleged assault.  This demand seemed unreasonable based on the description of the injuries, even if they occurred as alleged (“Jury says no assault, agrees with Osteen’s wife”, MSNBC, Aug. 14, earlier).

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Here’s a good article on the American practice of allowing litigants to hire their own experts.  Each expert advocates a position favorable to “their” side often rendering the dueling experts’ opinions of limited usefulness to the jury.  Other countries implement different mechanisms for engaging expert testimony including having the judge select the expert.  That sounds less partisan and cheaper, too.  (“In U.S., Expert Witnesses Are Partisan”, The New York Times, Aug. 11).

And, I’m reminded of Ron Coleman’s post where he quotes an article describing hired experts as “witnesses having other rational explanations”.  (Try the acronym and you’ll get it).

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The need for tort reform doesn’t necessarily arise from headline-grabbing blockbuster verdicts but rather a “death by a thousand cuts” of many small suits of questionable merit.  Example: A woman sues the party host after drinking and then attempting to get on his horse as part of the party festivities.  She falls, suffers injuries and files suit against the host making general allegations of negligence, including, “providing … the opportunity to participate in the ‘inherently dangerous activity of horseback’ ”.

Does the host’s behavior rise to the level of negligence?  And, if so how is the woman’s negligence less than his?  He may have offered the alcohol; she drank it.  He may have offered the horseback ride; she accepted.  Have we reached the point in America that we need to have party goers sign waivers for private festivities?   But since exculpatory agreements are generally frowned upon by the courts I think I’ll just stay home alone.  A lot of fun that will be.  (“Suit shows you shouldn’t drink and ride horses”, The West Virginia Record, Aug. 8).

Horse example number 2:  Certified Massage Therapist Mercedes Clemens is suing two state agencies because her avocation is massaging horses but the state won’t let her (at least not for a fee) because she is only licensed to massage humans.  And, for once it’s really not about the money because she’s not asking for it in her lawsuit, just the right to massage animals.  It’s not as if Clemens is practicing pediatric anesthesiology for kicks.  So who cares, really?

I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients. And, if the state would simply step out of the way in this instance it could avoid this lawsuit. (“Woman sues for right to massage horses”, MSNBC, Aug. 11 and “Rockville therapist sues state for right to massage animals”, Gazette.Net, Jul 2).

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Olympia, Washington attorney Legrand Jones refused to provide police his identification and was then arrested and charged with trespassing and obstructing a police officer. He told the media “I don’t have to show my papers on demand. I don’t live in that kind of world.” (I can’t refrain from pointing out that if you follow the Jones link above, it displays his accomplishments and photo next to a generic-type photo of a person being forcibly arrested. A potential client, perhaps?)

Seriously, though–I agree that if you’re minding your own business and accosted by a police officer demanding identification you have the perfect right to continue on your merry way. The story suggests a slightly different twist–that he was allegedly trespassing on Port property when approached by the police officer who then requested identification. Perhaps some law enforcement or criminal defense law experts out there can shed some light on Jones’ defense. (“Arrested lawyer argues people don’t have to show police ID”, AP/Seattle Post-Intelligencer, Aug. 7).

Update: Commenter gitarcarver identified a more comprehensive account of the allegations (“Olympia attorney argues against anti-war protest arrest”, The News Tribune.com, Aug. 12).

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Guest Blogger This Week

by Jason Barney on August 10, 2008

Hello again!  Walter Olson has welcomed me back to help fill in while he’s away.  Don’t forget to check in at Overlawyered’s sister site, PointofLaw.com which also has a guest blogger this week.  I’ll hit some high points on joint & several liability, wrongful death and might even pick on John Edwards a bit.  You’re welcome to send along any story leads, with special encouragement for leads not picked up on by the national media–many of which come from your local paper or television station.

Today’s Tidbits

by Jason Barney on October 29, 2007

$600 per class member for defective brakes; $4.1M attorney fee claim

See this story via Law.com. No problem with consumers getting a few hundred dollars to offset the cost of a brake job. A healthy $5.6M verdict provides such remedy for over 9,000 class members. The rub? A $4.1M attorney fee claim, which according to my arithmetic is ten lawyer-years in work, at a respectable $200/hr. Oh, and check out the defendant attorney’s brilliant lawyering in his appeals brief, referring to the trial judge as the “Red Queen” from Alice in Wonderland. It wouldn’t be so bad had the appeals court not remanded the attorney fee issue back to that very trial judge.

Mean-spirited protest of funeral for fallen United States Marine prompts suit

The story is here. That anyone would express their protest in this manner is truly shameful. Update: $10.9M verdict!

Law says wife is husband’s property

Slighted spouse sues his wife’s lover for “alienation of affection.” Law says wife is a man’s “property.” Story via ABC.com.

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I previously posted on Washington’s Insurance Fair Conduct Act, known as Referendum 67. If passed by the voters, it would allow first party claimants to recover triple damages and attorney fees for those claims “unreasonably” delayed or denied.

Existing law already allows a wronged insured to bring three separate causes of action against his/her insurer for such claims: breach of contract, bad faith and violations under Washington’s Consumer Protection Act (CPA). Such existing remedies often yield bizarre results as we saw in the Woo v. Fireman’s Fund case.

The Supreme Court’s knuckleheaded 5-4 ruling upheld a judgment to pay Woo $250K he paid to settle an underlying suit, plus $750K in emotional distress and attorney fees. Obviously, there are already plenty of incentives for an insurer to avoid these judgments by acting fairly, and under this legislation Woo could have received three times more as punitive damages in addition to the “emotional distress” damages which have a punitive measure built into them. And in case you are wondering, Fireman’s Fund coverage position was perfectly reasonable.

The television ads for the Approve 67 camp are demagogic and misleading, if not outright lies. The worst has to be the ad featuring Tiffany Forslund whose father, firefighter David Potter, died allegedly because an insurer delayed payment for necessary health treatment. Forslund says:

My father would have given his life in the line of duty, turns out the insurance company took it instead.

What tripe. Not only would R-67 not apply to her father’s claim (it is intended to benefit auto, home and property policies–not health insurance) it’s not true according to the mayor of the city for which Potter worked, who said it would be covered as a workers’ compensation claim or through the city’s health plan. But the attorneys promoting this legislation could not resist such a sympathetic story of a firefighter allegedly killed by an insurance company, even if it’s entirely off-point and probably untrue. Demagoguery at its finest. And, if the claim is true Potter’s family already has remedies under existing law for emotional distress, which, for a lost loved one are rightfully substantial and the threat of such judgments deter wrongful insurer conduct. Why shall we now triple those damages?

Attorney fees are typically one-third of the gross recovery. So if the gross recovery is tripled it equals a bigger fee. But let’s say the insured prevails but the gross recovery is small? No problem. Just submit your fee request to the court on an hourly basis if it provides a greater recovery for the attorney. And, here’s another little tidbit: the attorney fee provision is mandatory but the triple damages are at the court’s discretion. Who’s looking out for who here, really? And, that the triple/punitive damages are for the deliberately vague “unreasonable” and not for criminal, willful or wanton conduct as you would expect (and would be deserved) to award punitive damages makes for a juicy tidbit indeed.

And, there’s no crisis in the first place. Check out this link from the Insurance Commissioner of Washington State showing the number of complaints against individual insurers. In 2006, Private Passenger Auto Insurance Complaints averaged one complaint for every $1.5M in premium and Homeowners Insurance Complaints averaged one complaint for every $2.5M in premium. Hardly a crisis, and nothing worthy of threatening triple damages in every instance.

This legislation will enrich those attorneys bringing these suits, bring a windfall to a small number of insureds at the greater expense of all who pay insurance, directly or indirectly.

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More Tidbits

by Jason Barney on October 26, 2007

Jackpot justice of another kind

A man on the nickel slot machines wins over $1M despite the maximum payout of $2,500. The casino blames computer error. The story shows a picture of the stoic gambler in front of the cordoned-off slot machine.

Etiquette expert pranked in ‘Borat’ sues

Yes, another ‘Borat’ suit, here. As the story points out, why wait so long? Come on, folks, jump on the bandwagon!

Wrong doctor sued, pays out of pocket due to Med-Mal policy deductible

Sue the wrong doctor and drag out the litigation process, all to the detriment of the defendant. The story notes that courts rarely find suits are frivolous because “there’s almost always some grounds for a suit to be filed.” (Update: Jan. 6).

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Federici v. U-Haul

by Jason Barney on October 25, 2007

Here is an interesting but tragic case currently in trial in King County, Washington. Maria Federici, a then 24-year-old woman was gravely injured when an entertainment center flew from a U-Haul trailer attached to a vehicle operated by another motorist. It smashed through the windshield of Federici’s following vehicle, striking her in the face crushing every bone in it. She suffered blindness and permanent disfigurement. Media accounts are here, here and here.

I’m not posting to criticize Federici’s suit per se. It has noteworthy flaws to be sure–for instance there is evidence suggesting her blood alcohol content (BAC) was above the legal limit while she was driving, but the BAC was obtained under circumstances suggesting the results were unreliable (the injury trauma and resultant blood loss may have affected the BAC.) And her boss testified that she had only one glass of wine prior to the accident. Notably, the court disallowed the BAC evidence at trial.

So, Federici sues the motorist who failed to tie down the entertainment center, U-Haul and the rental company for alleged design flaws in the trailer and alleged negligent rental practices. Okay, so the motorist can own up for his negligence and U-Haul and the agency can own up for theirs, right? Not so fast. Washington State allows for a fault-free plaintiff to recover all damages from any defendant even 1% at fault.

With or without evidence of intoxication I wonder if Federici could have avoided anything flying toward her while traveling at freeway speeds. So, let’s assume the jury assigns her zero fault. That leaves 100% of potential fault for the defendants. Now, if you read the media accounts it seems to me that the motorist carries the majority of any fault for failing to secure his load, causing the accident. But, who has the deepest pockets? Let me help you: it’s not the motorist.

The plaintiff attorney in this instance will pull out the stops–do anything–to implicate U-Haul, and to a lesser extent the rental agency for any little amount of liability they can so that his client can collect the entire judgment from them (I suspect U-Haul has sufficient assets; the rental agency, if the Mom-and-Pop type, maybe not.) I don’t blame the plaintiff’s attorney, really–he has to advocate his client’s interests. But, it shows how twisted and wrongheaded the joint & several statute is in Washington. Nothing against Federici here, she’s suffered enough. But I struggle with holding some people accountable for damages caused by others. Does this make any sense to you?

Let’s look at the Mission Statement for the American Association for Justice (formerly the Association of Trial Lawyers of America):

The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests.

I’m all for that! Especially that part that says “fair”. Is it fair to hold a 1% wrongdoer accountable for 100% of the damages? If so, why? Because I don’t agree and I’d like to know if I’m wrong. And, I just know the AAJ would scream bloody murder if anyone tried to amend that statute.

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Legal Tidbits for Thought

by Jason Barney on October 25, 2007

Don’t make his art the butt of your jokes

Spotted by Lowering the Bar and story here and if you dare, here’s the link. AP story excerpt:

A high school art teacher fired after officials learned he moonlighted by creating paintings using his bare buttocks and other body parts sued his former employers on Thursday.

Workers’ Compensation Appeal Board finds politician aide’s media criticism of him did not constitute “abnormal working conditions” and upheld a decision denying him benefits

The Court’s decision is here. The decision was purely on the merits of the compensability of the workers’ compensation claim, so there is no mention if he sued for libel.

Soldier dies after entering operating hotel air conditioning unit; family wants $10M

The story is not entirely clear on if the unit in which he was found was marked with a warning sign or not, although it suggests that it was. The suit claims the hotel was negligent (what a shock) for failing to post appropriate signs and lock doors. You’d think the whirring blades would give a clue it’s not the brightest place to be. Oh, his blood alcohol level may have been a factor (see the story.)

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Broken Heart? Sue!

by Jason Barney on October 23, 2007

Thanks to Walter Olson for welcoming me back after a short hiatus from my last guest blogging stint. I often see stories worth sharing, this one in particular [excerpt below, full story here.]

A group of well-heeled women who paid up to $1,500 to snag a man through one of the nation’s priciest and fast-growing online dating services — It’s Just Lunch — has filed a civil lawsuit in Manhattan federal court, claiming the lunchtime setups were not what they bargained for.

This reminds me of this hilarious YouTube clip which is strikingly on point in this instance. Overlawyered indeed. And, $1,500 for a date? That’s about as out-of-touch as $27K for wedding flowers (with accompanying lawsuit.) Well, these “well-heeled” women expected George Clooney but (apparently) got Gilbert Gottfried instead. Maybe, simply, their hopes were just too high. Especially if they were prepared to fork over $1,500 for a date. Caveat emptor, I’m afraid.

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