Des Moines Personal Injury Lawyer

This Post Is Not about Toyotas, It’s About the Last Clear Chance Doctrine

Steve Lombardi — Tue, 09 Feb 2010 12:01:00 GMT

The motoring traffic ought to forget about sticking Toyota accelerators for awhile and think about that cell phone that is stuck to the driver's ear. That cell phone is more dangerous to most of us than any Toyota.

I’m on my way to work this morning and as I approach an intersection I’m on a downward slope. It’s my duty to stop at this particular intersection because my road ends and I’ve got to turn right or left. To my right a black SUV approaches. The driver appears to be a mother taking her children to school. I’m driving slow because there is fresh snow dusting the roadway and I know this particular intersection has a lot of ice under the snow. My vehicle is a Ford F-350 with a plow on the front of it and that means if I’m in an accident the other guy is likely to be the worse off.

As you read this blog post why don’t you play the soundtrack from Forest Gump. It seems appropriate to me since Forrest’s mother’s advice was based solely on common sense; which is what today discussion is is really about. Hit the play button and then continue with your reading.

http://www.youtube.com/watch?v=2GFgwJiWaJE

So here comes someone’s mommy from my right. She’s oblivious to my truck because in her right hand she holds a cell phone and from the bobbing and weaving of her head I can tell she’s into a very “important conversation” with probably some other mother. Her head is flipping side to side; she’s smiling and seems to really be enjoying the conversation. She’s really into it I guess you could say. But what she’s not into is her driving and being aware of her surroundings; especially this rather large heavy black pickup truck that is lumbering towards the intersection and may very well slide right through the intersection and into the path of her shiny new SUV. Oblivious is a good term because her head never even turns to look to see if the intersection is clear. And that is today’s point to ponder. What is the doctrine of the last clear chance and is it really just about common sense?

The last clear chance has nothing to do with dating, bars, closing time or gambling. It has to do with car accidents and the determination of fault or negligence. Clear as a bell right? Ha-ha, I didn’t think so, but I’ll try to make this clear for non-lawyers. The last clear chance seems to me to make sense in this instance. This lady, had she been doing what she was supposed to be doing, which is looking and assessing the road conditions as she drives, can avoid a collision but won’t because she’s simply not paying attention to her driving. Instead she’s paying attention to her conversation on a cell phone. And shouldn’t that make her at fault for not stopping and avoiding a collision? In other words she has the last clear chance to avoid a collision but through her own fault doesn’t avoid it, but drives right into it.

Even though the Iowa Supreme Court abolished the last clear chance doctrine as a separate jury instruction, I believe it’s still a part of the issue of proximate cause and is alive and well in the minds of jurors. Take a look at the legal definitions below and see if you don’t think people with common sense would say you’re at least partially at-fault and maybe 100% at-fault if you could avoid a collision but don’t because you’re yakking on a cell phone and not paying attention to the road. Keep in mind that a car sliding on ice is obvious because the wheels are locked and not rotating as the truck advances down the hill. If the lady wasn’t yakking on her phone she would see this, apply her brakes and the sliding truck would simply slide into the intersection and come to a stop without ever hitting anything. It is her last clear chance for a collision to be avoided.

Before we get to the last clear chance let’s define a proper lookout because the last clear chance is based on this concept. Here is the legal definition used by many Iowa Courts. The definition of proper lookout, negligence and the rest of these quotes are from the case of Sonnek vs Warren, 522 N.W.2d 45 (Iowa 1994). I’ve added the underlining.

"Proper lookout" is the lookout a reasonable person would keep in the same or similar situation. It means more than looking and seeing. It includes being aware of the operation of the driver's vehicle in relation to what the driver saw or should have seen.

A violation of this law is negligence.

And let’s also look at the definition of “negligence”.

"Negligence" means failure to use ordinary care. Ordinary care is the care which a reasonably careful person would use under similar circumstances. "Negligence" is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances.

Road conditions may be such that speed should be less than the legal limit. Traffic laws call for the minimum of care and not the maximum. A driver should not operate a vehicle up to the legal speed limit of ___ miles per hour if the circumstances are such that ordinary care requires a lesser speed. A violation of this law is negligence.

….

In defining "proper lookout," we said in Coker, 491 N.W.2d at 151, "Maintaining a proper lookout encompasses the duty to be careful of the movements of one's self in relation to things seen and that could have been discerned or seen in the exercise of due care." In Diehl v. Diehl, 421 N.W.2d 884, 887 (Iowa 1988), we described it as follows:

The duty to maintain a proper lookout includes being watchful of the movements of one's own vehicle as well as other things seen or seeable.

....

The common-law duty of control requires the operator of a motor vehicle to proceed with such care and with the vehicle under such control as existing conditions known or which should be known may require.

….

With our adoption of comparative negligence in Goetzman v. Wichern, 327 N.W.2d 742, 744 (Iowa 1982), and the subsequent modified codification of that doctrine by our legislature in 1984, the doctrine of last clear chance was abolished from Iowa jurisprudence. In Bokhoven v. Klinker, 474 N.W.2d 553, 556-57 (Iowa 1991), we held "the doctrine of last clear chance, even when considered a part of proximate cause, has no further function to perform where contributory negligence is no longer a complete bar to plaintiff's recovery." The doctrine's chief purpose was to ameliorate the harsh effects of the doctrine of contributory negligence. Id. at 556; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 66, at 464 (5th ed. 1984).

Even thought the Iowa Supreme Court held the last clear chance doctrine was eliminated as a separate instruction with the adoption of comparative fault, a weighing of what each driver did and didn’t do must be considered in determining who was negligent. So if that lady driving and cell phoning isn’t looking at what is clearly and obviously in her view isn’t she comparatively negligent? I think so. In this instance if we’d crashed, we didn’t, I would have asked her for her cell phone number and told her right there that had she not been distracted with her cell phone conversation there would not have been a collision. Common sense tells us you can't see what you're not looking for. You can't see when you're not looking. Another day I'm going to cover why that left arm to your head makes it reasonably likely some day you're going to crash.

I rest my case.

If you have any questions about this blog or any other feel free to call the author at the Lombardi Law Firm, West Des Moines, Iowa. 515-222-1110 or write to sdlombardi@aol.com. Enjoy your day and stay safe.

Originally posted at InjuryBoard by Steve Lombardi

Ohio’s UDM Coverage: Consumer Caveman Coverage

Steve Lombardi — Mon, 08 Feb 2010 12:01:00 GMT

Ohio, a place where backwards laws are considered forward thinking.

Yesterday we discussed how those people with greed on their minds, have engineered legislation to overturn the Ohio Supreme Court’s attempt to enforce the law that applied the broader view of coverage.

The insurance industry doesn’t want you to read this. They don’t want you figuring out you’ve bought insurance that is virtually useless to you. They will stop their gavels and yell that to adopt a broader view, one that actually provides more people with coverage, that it will drive up insurance rates; but I don’t see how. If they are honest with themselves they will admit their argument is total bull.

HOW DID THIS HAPPEN TO OHIO’S AUTO INSURANCE?

Here is what your Ohio legislature more than likely did when it decided to turn its back on you. Your representatives voted with 165 companies CEO’s and voted against the interests of the 11,485,910 people who live in Ohio. As you can see it takes only a small number of companies controlling campaign contributions and threatening economic havoc for a state legislature to put aside the interests of the electorate. Iowa has only 142 companies, Alaska only 47, Massachusetts only 23, Maine 97, Michigan 88, New Jersey 81, West Virginia 80 and Wyoming 84. I think tomorrow I’ll do a comparison with the low limit states as compared to the number of companies in each of those states.

Now consider the bigger picture. There are roughly 1,500 car insurance companies in America. According to the U.S. Census Bureau there are 308 million Americans who call this place home. Do the math and you’ll see how few CEO’s it takes to corrupt the national consumer process.

WHAT’S WRONG WITH LISTENING TO INSURANCE EXECUTIVES WHEN SETTING THE LOWEST POSSIBLE COVERAGE IN A STATE?

Allow me to use an example that should make sense to most people with an ounce of common sense. Say you have to save money for Christmas gifts. And you make the decision in January to start saving money to buy your kids Christmas gifts for the next Christmas season. If you wanted to get advice about how to save money would you go to gamblers or the loan sharks for advice about what you should do? You probably wouldn’t trust either for the right financial advice, since the gamblers never have enough money for the necessities of life and you can’t trust what the sharks say because they will say and do anything to get your money into their pockets.

THE ANSWER ISN’T LOWERING INSURANCE STANDARDS WITH FADE-AWAY COVERAGE

Well that’s what happened when the Ohio legislature took advice from the insurance industry on this issue. The Ohio legislators didn’t protect those they were elected to protect. Instead they took advice from the financially illiterate and those corporate CEO’s in line to make bonuses if they could boost the corporation’s bottom line selling phony insurance coverage, which I refer to as fade-away coverage. Is this any way to set public policy? Should our elected officials be taking advice from the financially illiterate and those who have much to gain from insuring very little?

WHY DO PEOPLE FALL FOR THIS?

I’m not exactly sure but maybe this commercial is trying to tell us something about the way they view consumers in general.

http://www.youtube.com/watch?v=o5JV0Fs_GE8

Welcome to Oiho. Oh wow did I write that backwards? Sorry about that.

Crappy Consumer Insurance: USAA’s Fade-Away UM Coverage –Disserving the US Military, Steve Lombardi | February 07, 2010 12:01 PM | 0 Comments Des Moines, IA , If it benefited our servicemen and servicewomen would you mind if today I was really cruel to an insurance company? Here goes, USAA is un-American and sets such a low standard that they should be...

Ohio’s UDM Coverage: Consumers Being Sucker Punched! The Never-Pay UDM Auto Policy, Steve Lombardi | February 05, 2010 8:01 AM | 0 Comments Des Moines, IA , Ohio must be using the new math? For two days now (Here count them using your fingers, one and two.) we’ve discussed how the Ohio legislature got together with their insurance buddies and...

Ohio Underinsured Coverage – They took it away and still charge you a premium., Steve Lombardi | February 04, 2010 8:01 AM | 1 Comment Des Moines, IA , Yesterday we covered underinsured coverage in Ohio and specifically the minimum limits type of insurance. Those minimum limits are $12,500. We found out the broad view was rejected and the narrow...

It Really Sucks Being in an Auto Accident in Ohio, Steve Lombardi | February 03, 2010 12:01 PM | 2 Comments Des Moines, IA , I thought of titling this piece Underinsured Motorist Coverage, The Narrow View fits Narrow Minds, but really I couldn't because in reality it just sucks to be a Buckeye. Don’t mind me the...

Ohio Insurance Companies – These are the companies that sold out the 11 million Ohioans.

21st Century

Acuity

AIG

AIU

Alfa

Allied Property & Casualty

Allstate

AMCO

American Bankers

American Commerce

American Family

American Family Home

American Fire & Casualty

American Home Assurance

American Modern

American National

American Select

American Service

American Standard

AMEX Assurance

AMICA

Atlantic States

Auto-Owners

Bristol West

Buckeye State Mutual

California Casualty

Celina Mutual

Central Mutual

Charter Oak Fire

Cincinnati

Cincinnati Equitable

Citizens

Commerce & Industry

Dairyland

Donegal Mutual

Economy

Electric

Employers Mutual

Encompass

Erie

Esurance

Farmers

Federal

Financial Indemnity

Firemans Fund

First Acceptance

First Liberty

Foremost

Founders

Frankenmuth Mutual

Garrison

GEICO

General Casualty

German Mutual

Globe American

Grange

Granite State

Great Northern

GuideOne

Hamilton Mutual

Hartford

Hastings Mutual

Home-Owners

Horace Mann

IDS

Illinois National

Infinity

Insurance Company of the State of Pennsylvania

Kemper Independence

Liberty Mutual

Lightning Rod Mutual

Markel

MeraStar

Metropolitan

MIC Insurance

MICO

Mid American Fire & Casualty

Mid-Century

Middlesex

Motorists Mutual

National General

National Interstate

National Mutual

National Union Fire

Nationwide

New South

Ohio Casualty

Owners

Pacific Indemnity

Permanent General

Personal Service

Phoenix

Progressive

Property & Casualty Insurance Company of Hartford

Republic Mutual

Response

Safe Auto

Safeco

Selective

Sentry

Sonnenberg

State Auto

State Farm

Teachers

TrustGard

United Ohio

Universal Casualty

USAA

Victoria

Viking

Wayne Mutual

West American

Western Reserve

Western United

Westfield

Yosemite

Graph Provided by CarInsurance.com.

Originally posted at InjuryBoard by Steve Lombardi

Motorcycle Crash with Car - didn't see cycles coming

Steve Lombardi — Sun, 07 Feb 2010 12:01:00 GMT

It really doesn’t matter if you say motorcycles helmets don’t work or are more unsafe then when you wear one. Once you’re in a crash and dead the debate stops for you. No one can tell me their head is harder than concrete or metal or anything else it’s bound to come into contact with after taking a spill.

Here we had on October 19, 2009 a story out of Grand Mound, Iowa where a car turned in front of three motorcycles. The car driver was a 70-year-old man. All four people were transported to the hospitals in the Davenport area.

http://www.youtube.com/watch?v=6g4fVduv2Rk

Do yourself and your family a favor and wear a helmet.

Originally posted at InjuryBoard by Steve Lombardi

Crappy Consumer Insurance: USAA’s Fade-Away UM Coverage –Disserving the US Military

Steve Lombardi — Sun, 07 Feb 2010 12:01:00 GMT

If it benefited our servicemen and servicewomen would you mind if today I was really angry with an insurance company? Here goes, USAA is un-American and sets such a low standard that they should be selling insurance to Bulsehviks in Moscow, Russia. Here is the commercial USAA should be showing.

http://www.youtube.com/watch?v=_cMlu7tUshg

USAA epitomizes all that is wrong with American business thinking. Let’s set the bar low, and if anyone is injured we will protect ourselves with laws that take away their rights to seek compensation. If they point the finger at any of us we will point to China or each other saying we are all doing it so it must be right.

This week I’m covering Ohio’s crappy insurance coverage with the fade-away coverage. The consumer pays for coverage that doesn’t exist when they need it.

Here is what I don’t understand about the car insurance business: Why do all insurance companies try to sell the policy with the least amount of coverage? After all let’s face it no one can read their auto insurance policy and know what will and wont’ be covered after they are in an auto accident.

This is the crap USAA is selling in Ohio. It’s a policy with underinsured motorist coverage (UDM) that takes a credit for whatever the at-fault driver’s insurance company pays and therefore removes that coverage from the injured guy when he needs it the most. It is like letting a fat guy take part of the skinny guy’s seat on a plane. The skinny guy paid for it, the fat guy didn’t and the skinny gets to sit for a couple of hours getting his suit repressed, sweated on, when he least needs it, never asked for it and paid for a whole seat. Don’t you hate that?

Let’s get everyone caught up on this issue. I’ve been covering auto insurance in Ohio because a client of mine whose child died is being paid only $12,500 by the at-fault driver’s car insurance and nothing by USAA, her own insurance company. What USAA did is write their policy and give themselves a credit for whatever the at-fault driver’s insurance company pays. Essentially they took away all of her UDM coverage and pocketed it for themselves.

Here are the titles so far.

Crappy Consumer Insurance: USAA’s Fade-Away UM Coverage –Disserving the US Military, Steve Lombardi | February 07, 2010 12:01 PM | 0 Comments Des Moines, IA , If it benefited our servicemen and servicewomen would you mind if today I was really cruel to an insurance company? Here goes, USAA is un-American and sets such a low standard that they should be...

Ohio’s UDM Coverage: Consumers Being Sucker Punched! The Never-Pay UDM Auto Policy, Steve Lombardi | February 05, 2010 8:01 AM | 0 Comments Des Moines, IA , Ohio must be using the new math? For two days now (Here count them using your fingers, one and two.) we’ve discussed how the Ohio legislature got together with their insurance buddies and...

Ohio Underinsured Coverage – They took it away and still charge you a premium., Steve Lombardi | February 04, 2010 8:01 AM | 1 Comment Des Moines, IA , Yesterday we covered underinsured coverage in Ohio and specifically the minimum limits type of insurance. Those minimum limits are $12,500. We found out the broad view was rejected and the narrow...

It Really Sucks Being in an Auto Accident in Ohio, Steve Lombardi | February 03, 2010 12:01 PM | 2 Comments Des Moines, IA , I thought of titling this piece Underinsured Motorist Coverage, The Narrow View fits Narrow Minds, but really I couldn't because in reality it just sucks to be a Buckeye. Don’t mind me the...

Now consider this, my guess is that USAA will say one of three things:

1. The law allows us to do this.

2. We aren’t doing anything that other insurance companies in Ohio aren’t doing. In other words we are setting the same low standard that everyone else is doing.

3. The low cost end of the insurance market is competitive and if we designed a better policy no one would buy it. Are we supposed to assume the poor are all stupid and would rather waste their discretionary earnings than pay a little more for better coverage?

Here is the problem with this type of thinking. Under the first reasoning it isn’t that the law allows selling crappy auto policies, it does, but it also allows insurance companies to sell better policies, ones that actually do some good for their insured’s rather than pocket the money. Which brings us to the second point: USAA is setting a pitifully low standard in the insurance marketplace that reaches only as high as the lowest possible denominator. USAA should be ashamed. These are servicemen and women who fight for our country and lay their lives on the line so that every USAA employee can live a good life where they can earn a healthy profit. USAA sets the lowest possible standard allowable by writing a policy with fade-away UDM coverage and selling it to young infantrymen and cadets. And so is every other company that sells this crap. The third point they can argue is only a good one if you believe every person who bought low cost insurance is ignorant and incapable of listening to why they should pay a little more to get a better mouse trap.

This is partly what is wrong with American business and why we all struggle against the Chinese. We are our own worst enemy. We are no longer trying to sell a better product than the next guy, now we race to see who can sell a product that meets the lowest possible standards.

One thing that is missing is trust by the consumer in corporate America. The consumers don’t trust businesses because no one plainly states what they mean. The IT community uses vernacular that redefines vocabulary and then when selling a product doesn’t plainly describe what you’re not getting. You find out only after you buy the product that it won’t do what you expected it to do. Then their vernacular becomes clear; you just had to spend more money. But if you go for broke and buy the most expensive you end up with a computer with 80% of the features you’ll never use. Why do you think so many people wait with baited breath for Warren Buffet’s annual report on Berkshire Hathaway? He speaks plainly, honestly and gets to the point. He isn’t racing to be the lowest common denominator; he wants only the best for his shareholders and in the process invests in quality not quantity. And Americans believe him. And Americans forgive him when he makes a mistake because if they know one thing about Mr. Buffet it’s that he’s always honest with them.

It takes a lifetime to build a reputation and only a few seconds to destroy it.

No one forces auto insurance companies to sell crappy insurance; the law doesn’t require them to sell crap. What the law does is allow them to sell crappy insurance policies. And in Ohio the law allows them to sell really-really-really crappy insurance policies. USAA chooses to sell this garbage policy with the fade-away UDM coverage. Now here is the kicker, USAA is doing it not because they have to do it but because it’s profitable for them. These policies with the fade-away UDM coverage don’t benefit the insured, they benefit USAA. And that’s why servicemen and servicewomen should look elsewhere when buying auto coverage.

What USAA is doing is shameful. They are taking advantage of our servicemen and servicewomen to make a buck for them leaving our young men and women without insurance coverage when they need it the most. The shame is on you USAA. Your policy language comes right out of the gutter where you should have left it.

Originally posted at InjuryBoard by Steve Lombardi

Does fault matter in a workers' compensation case in Iowa?

Steve Lombardi — Fri, 05 Feb 2010 12:01:00 GMT

Many workers and their spouses and dependent children wouldn't know it, but fault has nothing to do with receiving death benefits under Iowa law.

Take for example the semi-truck-pickup truck collision that took place on January 11, 2010 between Daniel Carl and Jay Harmelink who died in the collision. The report implies that Harmelink was at fault for crossing the center line of Highway 175 two miles east of Odebolt. I draw no conclusions that he was and I wish his family well in their time of grief. But today it’s important we learn about the law and a family surviving. We separate that which is real and relevant so that others may know how to deal with their own situation. Delay is never a good thing and we hope those with similar claims don't make assumptions that cost them dearly.

But assuming for the sake of argument that he was at fault and that he was working at the time of the crash or running a work errand we need to know whether that would preclude his wife and dependent children from receiving workers' compensation benefits under Iowa law. And the answer to that question is an emphatic NO. Fault has nothing to do with qualifying or not qualifying for benefits in a workers’ compensation action. Many people confuse the fault at issue in a normal car accident case between two drivers with what must be the law under Iowa Workers' Compensation. The other lawsuit over the car accident is what we call a third-party case; and in this instance there could be an action between the two drivers separate from the workers' compensation case. These are two separate and distinct lawsuits and one doesn’t preclude the other. Also know that collecting in one doesn't guarantee collecting in the other. Clear?

But even assuming Harmelink is at fault it’s meaningless to the widow in a workers compensation action. That's not something she needs to be worried about.

There are other issues underlying a worker’s injuries from a car accident and whether or not they get compensation under Iowa law, but those issues will have to be taken up on another day. Just know that if you’re driving a company vehicle or for that matter your own vehicle (Does your employer ask you to run errands in your own car or truck?) you are probably covered under Iowa’s workers’ compensation laws. See our section on workers' compensation injuries for a discussion about dependent coverage or widows' coverage.

Iowa Workers' Compensation Benefits: Iowa lawyer points out that ...

Apr 7, 2009 ... Death benefits are payable to the dependents of the employee. ... Iowa lawyer points out that negligence doesn't apply to work comp claims. ...
www.lombardilaw.com/.../iowa-workers-compensation-benefits-iowa-lawyer-points-out-that-negligence-doesnt-apply-to-work-c-20090407.cfm - Cached

For good advice see a lawyer and if you have questions about this blog write or call me directly. Steve Lombardi, sdlombardi@aol.com and 515-222-1110.

Originally posted at InjuryBoard by Steve Lombardi

Ohio’s UDM Coverage: Consumers Being Sucker Punched! The Never-Pay UDM Auto Policy

Steve Lombardi — Fri, 05 Feb 2010 08:01:00 GMT

Ohio must be using the new math?

For two days now (Here count them using your fingers, one and two.) we’ve discussed how the Ohio legislature got together with their insurance buddies and passed a law that rips off the elderly poor and the working young in Ohio. If you’ve missed those posts I’d suggest you pick up these linked titles and review them. Of course if you’re a member of Ohio’s legislature you won’t need to read them because you know exactly how your insurance buddies are getting a freebie with selling worthless underinsured motorist coverage to Ohio’s citizens.

It Really Sucks Being in an Auto Accident in Ohio

Steve Lombardi | February 03, 2010 12:01 PM Des Moines, IA

Ohio Underinsured Coverage – They took it away and still charge you a premium.

Steve Lombardi | February 04, 2010 8:01 AM Des Moines, IA

Here is the effect on those buying “economical coverage” in Ohio. If you’re living in Ohio, own an auto policy with underinsured motorist coverage, chances are you are paying for insurance coverage you won’t ever collect on. You’re probably thinking this is just some lawyer complaining about nothing, but I assure you most days I could care less about how Ohio citizens decide to treat each other. But not this day, on this day I do care but only because of the effects of this law on my grieving clients. They lost their child, a wonderfully bright, energetic young lady with great promise in the United States Air Force and all they are entitled to receive is $12,500. Not a penny more.

How does this insurance industry scam work?

Well first you need to contribute to the campaign chests of the best state politicians that money can buy. Then you get them to pass laws taking away the effects of case law that attempts to make some kind of sense out of laws requiring minimum limits of $12,500 for auto insurance. They in turn title the new law the opposite of what it really means, like auto insurance financial responsibility. Let’s get serious how can coverage of $12,500 be a responsible act of financial decision-making? So to call it that is preposterously disingenuous.

Sorry I hope those last two words aren’t too big for the Ohio legislators.

Then you write insurance policies that promise coverage, but in the fine print really you just take away that coverage. That kind of a policy makes you a ton of revenue while saving your company a bunch of money which allows the political campaign war chest more money to buy more politicians. In fact if you can sell something that costs you next to nothing it will increase the revenue to your company. It’s a great scam if you can get to do it.

Of course I’m being a bit factious (oops another big word) because business today isn’t being done like the mob did it 30 years ago. This type of white-collar criminal mentality comes without machine guns and broken legs. This non-criminal conspiracy is done in the open chambers of those state legislative halls in every state passing law allowing similar measures to be passed. They do it right in your face, right under you noses and then they tell you it’s in your best interest – and you’re gullible enough to believe them.

Technically here is how this never-pay insurance policy works. You buy a policy with $12,500 of underinsured motorist coverage. That means when you get in an accident you probably think that if you’re in an accident with an at-fault driver you’re entitled to what his insurance company pays and then get to add this $12,500 on top; that allows you to get closer to being fully compensated. But in the back of your policy, hidden in the finer print is a clause taking away from your UDM coverage whatever the at-fault driver’s insurance company paid. So if the at-fault driver has $12,500 and you have $25,000 in damages you get only $12,500 because his policy payment cancelled out your $12,500. It’s a dollar for dollar setoff. What this means is that any driver with insurance must have at least $12,500 in coverage; meaning anyone in an accident with them will always have a $12,500 setoff against their UDM claim. So anyone with minimum underinsured motorist coverage in Ohio can’t ever collect on that coverage. Get it you're paying for nothing.

Well shucks Auntie Mae, I wished I’d knowed that before I got in that darn wreck!

Can you imagine the profit margin in selling Ohio underinsured motorist coverage? Aside from the commissions paid to insurance agents who sell this worthless policy, the campaign contributions needed to maintain the law and all those bonuses CEO’s pay themselves for whining about the lawyers who help the icky injured people, the margin is a slim 100%.

Why would anyone sell underinsured motorist coverage with minimum limits when the minimum coverage is the same? The answer is easy, money talks.

Oh my I'm a bit sideways today, could you tell? That’s enough bashing the Ohio legislature for one day. Tomorrow let’s see what other states have joined into this narrow minded scam. Until then review this overview so you know if you’ve got low limits of auto insurance coverage you ought to be taking the bus or riding with your friends who have higher limits of coverage.

GENERAL OVERVIEW – ONLY A CAVEMAN WOULD BUY THIS INSURANCE

Broad View: If your damages exceed the at-fault driver’s coverage you file for UDM coverage with your own company.

Narrow View: If your UDM limits are the same as the at-fault driver’s coverage you get nothing. Your insurance company gets a credit for any insurance coverage the at-fault driver has.

Question for the Insurance Cavemen: If in Ohio the minimum coverage required is $12,500, and you sell $12,500 of UDM coverage how can an insured ever collect on it?

Bonus Question: Can someone remind me again why anyone in Ohio would purchase UDM coverage at the minimum limit?

Like I asked before, why would I ever want to live in Ohio?

http://www.youtube.com/watch?v=Bfq5kju627c

To read more by Attorney DiCello see these posts on the InjuryBoard.

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Originally posted at InjuryBoard by Steve Lombardi

National Study Shows Table Saw Injuries Not Decreasing

Steve Lombardi — Thu, 04 Feb 2010 12:01:00 GMT

There’s a new retrospective analysis study examining table saw injuries in children and adults. The study is published in the January 8, 2010 issue of The Journal of Trauma.

ABASTRACT

The Journal of Trauma: POST AUTHOR CORRECTIONS, 8 January 2010

doi: 10.1097/TA.0b013e3181b28ad3

Original Article: PDF Only

Nonoccupational Table Saw-Related Injuries Treated in US Emergency Departments, 1990-2007 Shields, Brenda J. MS; Wilkins, John R. III BCE, DrPH; Smith, Gary A. MD, DrPH

The findings are pretty straightforward and can be summarized as follows:

1. Children are more likely to be injured at school.

2. Adults more likely to be injured at home.

3. Fingers and thumbs were more likely to be injured.

4. Amputations occur about 10% of the time.

5. Amputations involve mostly fingers and thumbs.

6. 8% of the time the injured person is hospitalized.

7. Lacerations are the most common type of injury.

8. The table saw is associated with more injuries than any other woodworking tool.

9. Recommended safety measures include reading the manual and keeping the saw out of an area where children have access.

10. New technology is being developed to avoid serious injuries. An example is the SawStop. In central Iowa the closest dealer is at the Woodsmith Store, 10320 Hickman Road, Clive, Iowa.

So why is all of this important?

This study is important for shop teachers in high schools across the nation and parents whose children are taking shop class where a table saw or other woodworking tools are going to be used.

http://www.youtube.com/watch?v=Y9V4FyCX97Y

Originally posted at InjuryBoard by Steve Lombardi

Ohio Underinsured Coverage – They took it away and still charge you a premium.

Steve Lombardi — Thu, 04 Feb 2010 08:01:00 GMT

Yesterday we covered underinsured coverage in Ohio and specifically the minimum limits type of insurance. Those minimum limits are $12,500. We found out the broad view was rejected and the narrow view adopted. Today let’s explore who’s at fault for the narrow minded view.

It Really Sucks Being in an Auto Accident in Ohio

Steve Lombardi | February 03, 2010 12:01 PMDes Moines, IA

The narrow minded type says you set the minimum limits of financial responsibility and then underinsured coverage pays you the difference between what the other guy has and what your policy provides. So in the case of two minimum limit drivers, $12,500, all you’re going to get is $12,500.

The broader view looks at the amount of your damages; then applies the at-fault driver’s insurance coverage and if it’s not enough then applies your own coverage to make you whole. Say your damages are $100,000 and the other guy has only $12,500 and you have the same coverage of $12,500. Under the broader view, like we have in Iowa you’ll get the limits of both policies; an amount which in this example is $25,000. But under the narrow view you get only $12,500. All they are trying to do under the narrow view is provide the minimum amount of coverage. They don’t care about how much you were damaged or how much your medical bills cost beyond the minimum limits. They simply sell you insurance you can seldom if ever use.

The Ohio consumer got skunked by its own legislature. They had the broader coverage but got robbed by the people they elected to protect them. You had better broader coverage in Ohio and that was affirmed in 1993 by the Ohio Supreme Court in Savoie v Grange Mutual Ins. Co., 67 Ohio St. 3d 500 (1993). But the powers-that-be decided to take that away from Ohioans. They turned the law upside down and against the poor and those ignorant of insurance laws, (the young working adults mostly) By changing the law the legislature made the decision you weren’t worth the extra $12,500. The legislature allowed those who were financially irresponsible set the policy for all Ohioans. Simply stated they let those who could care less about your life, and think more about saving less than $100 per year to set financial responsibility laws. They allowed insurance companies and people with a low financial IQ to say how much you should get. How is simple they took it away. They actually passed a law to amend R.C. section 3937.18(C) to take away the Ohio Supreme Court’s interpretation of the coverage as being the broad form.

This is about as foolish a financial decision as I’ve seen. Who is the financial numskull that put their name on this bill?

In essence they screwed the young and the working poor, the poor elderly and anyone buying low limits of coverage in Ohio. But screwing the consuming public that elected them wasn’t enough; they didn’t stop there. While screwing the voters by allowing the sale of worthless insurance they still allowed the insurance companies to charge you a premium for underinsured coverage. Really I’m not kidding.

The insurance companies just hide the premium by grouping it into a single premium with uninsured motorist coverage. If you doubt me take out your Declaration Page and look to see if I’m right or if I’m wrong. Then pull out your policy and read the credit clause.

That’s a great margin of profit for them. I’m sure the Ohio insurance industry needed it for the next round of campaign contributions and CEO bonuses. Bingo! You’re screwed and they win.

Tomorrow let’s talk some more about this insurance scam going on in Ohio.

http://www.youtube.com/watch?v=bA8b8AjgbhM

Originally posted at InjuryBoard by Steve Lombardi

It Really Sucks Being in an Auto Accident in Ohio

Steve Lombardi — Wed, 03 Feb 2010 12:01:00 GMT

I thought of titling this piece "Underinsured Motorist Coverage, The Narrow View fits Narrow Minds", but really I couldn't because in reality it just sucks to be a Buckeye. Don’t mind me the only thing I’ve ever done in Ohio was to drive across it on I-80 for spring break and the summer semester from the University of Iowa. That was back in the 1970's. Since then I've gone on to become a lawyer and decided to remain in Iowa; oh yeah, to be a Hawkeye.

So what have I learned since the mid 70’s about Ohio that might change my mind about it aside from its lack of choices in radio stations. Not much that I like, that’s for sure. After I wrote a blog about a young up-and-coming Air Force cadet killed in Ohio the parents asked me to look into the accident and deal with the insurance companies involved. What I found out didn't change my thinking about why I wouldn't want to live in Ohio. In this instance what I learned simply added to the list.

My client’s daughter was 20 years old when she died because another driver, the at-fault driver didn’t stop at the intersection she was coming through. She got t-boned, that’s a broadside collision, with such impact that it simply smashed her skull and brain instantly killing her.

WITNESS ACCOUNT: At approx. 1:05 pm as I was returning to base I witnessed an accident involving a blue jeep and a silver passenger car. I was at the light coming from 844 to 444 in the left lane. The light turned green and I proceeded then within seconds noticed a jeep traveling to fast to stop at the red light and immediately heard an impact. When I looked in my rearview mirror I knew that I needed to turn around because someone was hurt. I arrived and asked questions to the blue jeep in the middle of the road, he seemed ok. Went to the other side and a group of about 4 others to check on the people in the other car. The passenger was conscious but the driver was out. Called 911 and talked to the passenger.

That driver was my clients' child. She had purchased an auto policy with USAA, that’s the insurance company providing coverage to a whole lot of servicemen and women. You know the same ones who fight for freedom and the American way. The policy provided the minimum limits of insurance that you can buy under Ohio law - $12,500.00. The other guy, the at-fault driver had the same – another whopping $12,500. In Ohio that's what legislators call being financially responsible. I call it making money by hiding behind the ignorance of young people.

Now you’re probably thinking her parents and her estate get a lousy $25,000.00 to bury her and to pay the medical bills. Well you’re wrong. For all of her losses and those of her parents along with her twin sister, auto insurance provided a whopping $12,500 in coverage. Yeah the entire auto insurance settlement is $12,500. I've seen medical bills to fix broken legs costing $100,000, so how can $12,500 ever be considered financially responsible? The required coverage isn't just pathetic it's a disgusting display of arrogance by the Ohio legislature towards the electorate.

I wish it were as simple as saying Lombardi is a lousy lawyer and he has to be wrong; but I'm not and it’s not. I actually do know the law and even confirmed my interpretation of Ohio law with my colleague Nick DiCello at Spangenberg Shibley & Liber. Nick is a good lawyer, who cares a lot about his clients so I trust his opinion. His firm's research confirmed my impression of Ohio auto insurance law. Nick's research showed the law wasn't always so stingy. In the past the Ohio Supreme Court's interpretation would have allowed the UDM coverage to be added onto the underlying coverage to more fully compensate the victim. But the Ohio Legislature pass a law that nullified the Supreme Court's decision, essentially removing your right to be properly compensated and allowing your insurance companies to sell you worthless insurance.

The Ohio Legislature joined hands with the wealthy insurance industry and said to the Ohio Supreme Court’s broader interpretation, “Na-nah-na-nah – for the dead in Ohio - they get nothing.” More porridge sir? Can I have more porridge?

IT REALLY SUCKS BEING A BUCKEYE

Here is what your Ohio legislature allows insurance companies and at-fault drivers to get away with in Ohio. The at-fault driver can cause an accident in which the other driver dies and all his insurance company has to pay is $12,500. He can take a car weighing several thousands of pounds, drive over one-hundred-miles-per hour, run a stop light, hit your car so hard he separates your brain from your spinal cord and then show up with $12,500 and be done with you. Really I'm not kidding.

So what's my current thinking about Ohio? Not much has changed in Ohio since the 1970's.

Tomorrow let's discuss how this insurance you'll probably never get to collect on is something the insurance industry is taking out of your wallet every month. They probably need it for continued campaign contributions with legislators like these in Ohio.

Until then stay safe, stay warm and stay off of the roads in Ohio.

http://www.youtube.com/watch?v=SRX4R9cYeDQ

It Really Sucks Being in an Auto Accident in Ohio

Steve Lombardi | February 03, 2010 12:01 PMDes Moines, IA

Ohio Underinsured Coverage – They took it away and still charge you a premium.

Steve Lombardi | February 04, 2010 8:01 AMDes Moines, IA

Originally posted at InjuryBoard by Steve Lombardi

Boyfriend of At-Fault Driver Discloses He Was Just On the Phone With the Driver…Oh really?

Steve Lombardi — Wed, 03 Feb 2010 12:01:00 GMT

Witness Discloses He Was Just On the Phone with the Driver…Oh really?

This accident demonstrates the importance of a good investigation and the difficulty of proving the at-fault driver was distracted by a cell phone call that led to a collision. Here is what happened. The date is January 13, 2010 and the location is 1301 Siebenthaler Avenue in Dayton, Ohio. Sorry all you Buckeyes but I’m picking on you again. Seems lately it’s pretty easy to do. Let’s get back to the facts of this accident. An adult female is driving her car, for some reason crosses the center line and causes a head-on collision with an oncoming car. A passenger in the struck vehicle is taken to the hospital, but the driver is reported to be uninjured.

Dayton PD shows up to investigate and while interviewing a witness discovers it’s the at-fault driver’s boyfriend who blabs that he was on the phone with her when she collided with the other car. Oh really? Well thanks for that little tidbit of information. The police were smart enough to pick up on this terrific admission and cite the girlfriend driver for failure to maintain control over her vehicle. Those injured in the other car ought to sue her for punitive damages for being so distracted with a cell phone that she’s can’t even stay on her own side of the road. See below the video for a further explanation. And by the way these are the morons you’re allowing to drive with only $12,500 of coverage. Good luck when you run into one of them.

Here is a distracted driver marathon.

http://www.youtube.com/watch?v=yZMqJAoQkVU

And in the civil case she will probably have to deal with a claim about whether or not driving while using a cell phone is a distraction that makes the driver grossly negligent, entitling those injured in the accident to punitive damages. Here is the reporters quote from the story. If you have further information please contact the reporter at

“Dayton Police Sgt. Clarence West said a female passenger in the struck vehicle was transported to Miami Valley Hospital. The driver of that vehicle, a male, was not injured. The female driver of the vehicle who caused the accident was sited for failure to control the vehicle, West said.

He said the officer investigating the accident reported that the driver’s boyfriend, who showed up after the accident, said he was talking on the phone to the driver when the accident occurred. West said some sort of driver inattention could have caused the accident, but that he could not verify whether the woman was on the phone or not at the time of the accident.”

Had the boyfriend not shown up and spilled the beans, would the driver have volunteered she was on a call at the time she drifted over the center line? Probably not. Was the other driver astute enough to look to see if the at-fault driver had a cell phone with her? Was the injured passenger incapacitated and unable to see, hear or ask questions about the at-fault driver’s use of a cell phone at the time of the collision? Will anyone ask if the at-fault driver was distracted with a cell phone? Will the at-fault driver tell the truth when answering these questions?

TIP: If you’re exchanging information following an accident, casually request as part of the other driver’s contact information their cell phone number.

Later that day there was a 5-car pileup on this same stretch of road, U.S. 35 east of Woodman Drive in Dayton.

There is a reason why in closing many of these posts I say we’re happy to answer your questions and if you’re considering contacting a lawyer do it sooner rather than later. Most people aren’t aware that the father you get from the date of the collision the harder it is to obtain cell phone records to show the call log that will show the exact time of a cell phone conversation and the identity of the caller. Wait and you do so to your own peril.

Thinks its okay to drive distracted? Think again. And if as a resident of Ohio you have questions following an accident or injury call my colleague Nick DiCello at Spangenberg Shibley & Liber

http://www.youtube.com/watch?v=aPlnNaHGZY8

Originally posted at InjuryBoard by Steve Lombardi