Wednesday, April 13, 2011

Beating the "Concurrent Cause"

By Ken Behrend, TLC 2008

After 14 months of waiting, this morning I received an order from the Supreme Court of Pennsylvania denying allocator to the defendant insurance company's petition seeking reversal of the Superior Court's decision I argued and won, which reversed the trial court's decision dismissing the claim at summary judgment. Thus, ends a legal odyssey that began September 17, 2004, when the remnants of Hurricane Katrina hit western Pennsylvania. In a small run down town, called Millvale, the water cascaded down the hills into the valley where the town is located and caused the municipal sewage system to, literally, explode up into basements of homes and businesses. BUT, since the water kept falling from the sky, the local creek flooded and essentially wiped out the town.

This is the same Hurricane Katrina that wiped out the gulf coast. You may have read in the news how thousands of insurance claims were denied in the gulf coast because even though there was wind damage to the properties, there was also flood damage. The courts upheld the denials on the basis that the policies contained "concurrent cause" provisions. (If one source of loss is covered and one is not, and they occur concurrently - no coverage has to be provided if one is excluded). In the gulf coast cases, the flooding cause of loss was excluded and the insurers won those cases.

The clients are a mom and pop operation, they owned a wholesale fabric business that did about $1 million a year in sales. Responsibly, he purchased $600,000 of business interruption insurance coverage. He also purchased a rider which included coverage for loss caused by sewer back-up, which would trigger payment also under the business interruption coverage. Since the sewer back-up destroyed the entire inventory of fabric stored in the basement, a claim was made. In denying the claim, the insurer asserted that the flooding also destroyed the inventory of fabric and the "concurrent cause" provision in the policy controls. The concurrent cause was from both sewer back-up (covered loss) and flood loss (not covered).

The insurer pointed to all of the decisions from other states, particularly in the gulf coast, where the courts routinely supported the denial of the claims caused by Hurricane Katrina.

In overcoming this defense, fortunately, I was able to successfully argue that the sewer back-up coverage was provided by a rider to the policy and cost extra. As such, the rider should trump the policy terms since the concurrent cause provision was in the main policy but was NOT part of the rider language. Indeed, the Superior Court called the denial using language in the main policy to deny a claim based upon the rider language a: "sleight of hand." Bishops, Inc. v. Penn National Insurance, 984 A.2d 982 (Pa. Super. 2009), appeal dnd. ___ A.3d ___ (Pa. April 3, 2011).

In both the brief writing and the appellate oral argument, I used TLC methods. I told the story of the case from the perspective of the RIDER and why it was more important than the main policy language, as well as how the use of the main policy language was deceptive!

Much to the annoyance and chagrin of the insurer, the Superior Court agreed that the Rider "trumps" the language in the main policy, and now the Supreme Court has permitted the decision to stand!

The Supreme Court's ruling is very dramatic in result, (client will be paid around $900,000 which includes 6% interest), but anti-climatic at the same time, since there is no one to witness, this blessed event. All there is, is a cold lifeless a piece of paper. This case may never be heard about in the media, and the public will never know that there are possible ways to beat an insurer's deceptive use of the "concurrent cause" provision that was used so successfully in the gulf coast cases.

"TLC at its best!"

Art Lloyd, TLC 2009, writes about a TLC Meeting held in Long Beach.

It was TLC at it's best in Long Beach on Saturday. Mark Choate from Alaska, Jane Oatman from Fallbrook and her husband Mark (with the video equipment) Sonia Chaisson, Laura Horton, and Jay Smith all gave of their Saturday to come and help Joe and I try to find the story locked up by a language barrier (Chinese) with our clients. It was an inspiration to see everyone take their turns helping peel the layers of the language onion off and expose the humanity that binds us all.

The case involved four Chinese women from California who decided to drive across country to Virginia to start up a chair massage business (the legitimate kind). As they were driving in a rain storm past the Meteor Crater Road in northern Arizona, the driver decided to pull off to gas up and buy some lunch. The speed limit in the area was 75mph. The original highway plans called for a 45 mph speed limit sign at the entrance to the off ramp because there is a "transition curve" in the roadway. Transition curves are optical illusions in that they look like a very smooth, pretty curve, but the radius in the middle of the curve is narrower than on either side and it can trick a driver, causing them to run off the road. The 45 mph speed limit sign was there for sure until 1990 (the last time we have a picture of it) but after that, it disappeared and no one can explain why it was not replaced. In 2002 the exit ramp was repaved and the plans called for a tapered road edge so that if a driver got off the road, he could get back on easily. The tapered edge was not constructed but instead there is a vertical road edge drop that exceeds three inches in many places. The standard calls for no greater than a 2 inch drop off. After the 2002 project was completed, there have been 6 rollover wrecks in the curve including a fatal and three semi trucks that have run off the road and flipped when trying to re enter the roadway.....

As our driver takes the exit, she goes off the road, tries to get back on, but hits the road edge, the van trips and rolls several times. The driver's sister sitting in the back seat is instantly killed when her head is crushed as the car rolls over her. Our client sitting in the front seat (with her belt on) is severely injured, in a coma for 18 days, brain surgery, and also has a broken back and ribs...the other client in the other back seat is ejected out the window, and breaks her back in three places, shatters her pelvis, breaks ribs and is cut pretty bad........The state is the defendant and the defense is that is was 100% driver error, and if it wasn't, then the plaintiffs have all healed up and are just fine.

The driver of the van that rolled and killed her sister was finally able to release the guilt and let the love come to the surface. She will be a powerful witness. The passenger who was thrown from the car as it rolled and broke her back, pelvis and ribs, finally started to let down her defensive guard. It will take more work, but I think she is starting to trust these white men who are only trying to help her..... Truly TLC at its best!

Tuesday, April 12, 2011

Company Facing Lawsuits For Alleged Sexual Assaults Voted Top Employer For Women

Todd Kelly, TLC 2009, is litigating this case.

From ABC News

KBR, company that has been sued repeatedly for alleged sexual assaults and harassment of female employees, has been voted one of the best companies for women to work for by a magazine aimed at female engineers.

Woman Engineer named the Houston-based contracting company number 46 in the 2011 version of the magazine's annual list of the top 50 best workplaces. Winners were chosen by readers who responded to a survey, and the magazine will publish the full list later this month.

KBR has extensive contracts in Iraq and Afghanistan. Attorney Todd Kelly, who has so far represented five former KBR employees who have alleged sexual assault or harassment, told ABC News that in all about 40 women have contacted his office about alleged incidents that occurred while they were working overseas for KBR or at one of its facilities.

Kelly said he didn't think the women he's interviewed or represented would be pleased with Woman Engineer's honor. "The women that I've spoken with personally, who have talked about just rampant misconduct, sexual and otherwise, by KBR management, I don't think would agree with that distinction," said Kelly. "I find it extremely interesting that the timing of that particular distinction comes out just a couple of months before the Jamie Jones trial is about to start."

Read more here.

“How would that help your client?”

Case tried by Brad Frizzell, TLC 2010

I have a client who has had one fusion and needs three more because he fell when the truck step of his rig broke. He has 8 kids and worked around the clock to provide for his family. In addition to the third party action, I told him he may want to think about applying social security. He did and was denied. Of, course. I know social security hearings are not always the Atticus Finch scene that our other trials are, but this one is TLC worthy.

We went to his hearing last Wednesday. The Judge starts off with tearing into me that my exhibits were late. I offered to have my paralegal fax the confirmation sheet that showed they were submitted beyond timely. He said no and I would probably have her lie for me anyway. He starting interrogating me about the status of my law license and all kind of crap. (He wanted to know every court I was admitted in and so on.) He then starts giving me an oral lawschool exam that I would probably fail if it was open book. For these hearings you submit a brief, but the hearing officer (Judge) does not submit an opposition. (God help you if you are pro se). After 30 minutes of belittling me and interrogating me, he moves onto my client. He spends what seems like forever asking my client about what church he goes to and what passages of the bible he is studying. Mind you my client is in there with a TENS unit because of a fusion, has records to show that the doctor wants to do another cervical fusion and a lumbar fusion, both of multiple levels. At this point, a younger me would have stood up announced my outrage and disgust with this circus.

However, as a member of the TLC staff once told me “How would that help your client?” For those who do not do social security cases, the judge is the judge, jury, and prosecutor. So instead of having a meltdown, I focused on the things this judge was forgetting to ask in his interrogation. I have never done this with a social security case, but prior, I had my client reenact to me some of the events in which his numbness in his hands really scared him. So after the Judge was done asking my client questions about the book of Mathews, it was my turn. The judge never even ask my guy about numbness in his hands. I had my client reenact the scene where he picked up a hot BBQ lid and did not realize until sometimes later he had burnt his hand to the point of blistering. I had my guy talk about cutting a tomato in his kitchen for the family and realize that when he got to the table, he was about to serve them a bloody tomatoes as he did not feel the cut in his hands. When my guy is talking I am nodding my head yes as many listeners do. The judge even put my nodding on the record and instructed me to stop. Then I finally asked my client which hand is the worst, and which is his dominant hand? Answer to both questions is right. By the way the judge is objecting to my questions such as, what happened the last time you tried to lift a gallon of milk (judge’s obj: assumes a fact not in evidence and leading, response: Client, you have 8 kids, have you ever lifted a gallon of milk before) As far as the leading, I was about to show him what leading is, TLC style.

Who’s flipping pages like crazy now? Not me, its everybody else. Judge gives vocational expert a hypothetical which is all jacked up. I choose not to object. Really, who the hell objects at a social security hearing? First job, a telemarketer type. Long story short, I asked (actually told TLC style by following up with an “ isn’t that right”) the voc guy if he is recommending a job for man recovering from a cervical fusion, about to have another, with no computer experience, that consist solely of being on the phone and using a computer? The Oxycodone alone would make this a farce. He flipped paper and said maybe. The security guard position was next, you can about imagine this playing out. Hint: I had the JUDGE’S vocational expert set the scene and reenact the job. So the judge sees where this is going and how the vocational expert is working with me, admits none of these jobs are suitable, but then starts naming every freaking job under the book. Then, the JUDGE’s vocational expert is doing a great job of finding reasons that my guy cannot work these jobs.

Then judge says -alright, enough of this charade, I find in favor of the claimant. It is not going to be enough legal fees to pay the light bill, but a 49 year old man working his whole life with 8 kids got justice that day. And a judge looking for a fight, was defeated without a single punch thrown.

Re-enactment and Role Reversal

Case tried by Bill Clanton, TLC 2010

On May 1, 2008 my client, an African-American man, was enjoying a motorcycle ride with a group of acquaintances on a road that winds though the Texas Hill Country. My client was a novice rider and so he was at the back of the pack of about 15 riders.

Unbeknownst to the riders, one of the residents on that road had a problem with these riders. He had called the police at least three times, and had never received a satisfactory response. On May first he decided to take the actions that he felt the police should. When he heard the riders pass his house he ran out and hopped in his pickup truck and chased them down.

Meanwhile, my client, about two miles up the road is pulling into a parking lot and resting. He unzips his jacket, takes off his helmet, and does a few stretches. Then he notices the rest of the group starting to leave. So he zips up his jacket, put his helmet back on, mounts his bike and gets ready to go when he notices the strap on his helmet is twisted. He straightens out the strap and sees a pickup truck pull up. The truck pulls up next to him, and yells something at him. My client has earplugs in and his helmet on and when he realizes the driver is not asking for directions he takes off on his bike.

The driver, wanting to make his point, moves his truck infront of my client, blocking his exit. My client nearly drops his bike because he has to stop so suddenly. My client is afraid when the driver gets out of his truck and starts walking toward my client. My client gets off his bike and an argument ensues. My client realizes that this is going nowhere turns to his left and as he does the truck driver swings and hits him in the helmet and the fight begins. The truck driver bites my client’s finger so hard that he still has a scar. The fight comes to an end and the truck driver tells my client, “You are going to jail.” Just then a group of cops, on their way to eat, are passing by and the truck driver flags them down. He tells them his side of the story and my client is arrested without the opportunity to tell his story.

The truck driver testified that he never moved the truck after pulling up next to my client, that he got out of his truck to take down my clients license plate number, that my client headbutted him twice, and that my client reached so far down his throat that he damaged his vocal cords. My client reenacted the scene by reversing roles with the truck driver and showing how he was hit. He explained how the fight started and was much more credible than the truck driver. The police officers set a scene where the truck was parked directly in front of the motorcycle, blocking it from moving.

At my client’s request, we tried the case to the judge who cited the truck drivers lack of credibility in finding my client not guilty. I was talking the judge a few days later in his chambers and he said that based on my clients testimony the truck driver lacked any credibility.

A Perfect Powwow

By Frank Fox, on the 2011 Sleeping Lady Washington Seminar

As tall pines and towering peaks beckon above
An owl hoots, a moose calls, a creek talks
Listening, your spirit lifts in the mist

At the end of a winding path
A spinning tale invites you in
Entering, your heart hears

Stories of loss, sorrow, fears, tears
Opening, you take them in
Touched, you understand

It's inspiration, imagination, germination
You absorb, grasp, grow
Still, you seek a saga

Re-enact, reverse roles, double
Explore the unspoken,

Oh, there's the story!

You find food too – too much, too good, too missed
And over coffee, in conversations, amidst connections
You share fights well fought, bond lives well lived

Day and night you discover your and others' stories
Seeing the overlooked, touched by an unknown
You feed the child within, the tribe outside

Breathing, listening, smiling, laughing, crying
You feel the blessed curse of feeling
Relish and grow warm

Then, you gather with all in the Chapel
And in a circle with the Chief
You witness the voices of growth and gratitude

For whether in the end it was "Good Bye" or "See Ya"
It was always Sleeping Lady
Leaving you an ever more awakened soul.

Frank Fox

My First TLC Trial

By Randal Kelly, TLC 2010

I took a verdict in my first TLC trial in March. It was a case I inherited from a TV advertiser that I didn’t want from the start. It involved some bad facts on both liability and damages. It was unclear who was at fault and there was a longstanding history of drug and alcohol addiction. My new client Mike was basically a guy who hadn’t done much in his life to help himself, and he wasn’t very likeable.

Things got going badly at the first client meeting. Mike and his wife Vicky are the kind of couple who talk at the same time so that they can disagree with what the other one says. They were angry and demanding, and coming to a solid understanding of exactly what had happened to them was impossible. All I knew for sure is that Mike had been trying to pass a snowplow, the plume from the plow blinded him, and then he was rear-ended by a semi after slowing his vehicle.

Things got worse when I called the investigating police officer. Almost before I could get the words “you probably don’t remember this collision” out of mouth, the cop let me know he was still looking for payback. Given my recent first impression of Mike and Vicky it didn’t take much skill to reverse roles with the cop. And even though he took the time to meet me for coffee, I couldn’t budge him away from his view that the collision had been Mike’s fault. Mike and Vicky had been belligerent and disrespectful and the cop wasn’t going to let that go.

The collision involved a high closing speed between the truck and Mike’s car, which my accident reconstruction engineer estimated to be between 25-30 mph. The force crushed the rear of Mike’s car and launched it off the highway at almost this exact speed differential. Another snow plow had come from behind the collision and cleared the evidence of point of impact, but the marks that were available demonstrated that the crash occurred in the right travel lane, basically front bumper to rear bumper. There also was no dispute that Mike had been trying to pass the forward snow plow in the right travel lane and had been completely blinded by slushy snow that his wipers were incapable of clearing from his windshield.

The trucker’s version of the crash was that Mike had cut in front of him in order to pass the snow plow, and after several failed attempts, Mike lost control, when onto the road shoulder, then returned to the travel lane where he slammed on his brakes. According to the trucker, Mike was stopped or nearly stopped when the collision occurred.

Mike unfortunately had two versions of what happened. He testified in deposition that he had not lost control before the impact, and that he had only let off the accelerator for a few second before the collision. The emergency room doctor recorded on the day of the collision that Mike said he was stopped completely in the middle of the highway before being hit by the truck.

Mike suffered what turned out to be severe injuries. He tore the rotator cuff in his right shoulder, which required surgical repair. He also developed two herniated lumbar discs, which were surgically replaced with prosthetic discs. He was still complaining of ongoing disabling back pain three years after his surgery, and after trials with several narcotics, Mike had been proscribed methadone, which he will most likely take for the rest of his life.

The discovery phase of the case was unusually combative. The trucking company and its lawyers objected to producing virtually everything, and key information, such as the satellite messaging and positioning data, had been destroyed. The trucking company also refused to produce the data from the truck’s electronic control module, which would have recorded the truck’s speed at the time of hard braking, the speed at impact, and the elapsed time between these two events. According to the discovery responses, this “black box” information had not been downloaded after the crash.

I filed two motions to compel in order to get any discovery, and ended up in a hearing in which I was admonished by his honor for the tone of my communications with opposing counsel concerning their discovery tactics. I was basically scolded for not being nice enough to lawyers who were caught hiding discovery documents and failing to follow the rules. It was at that point in the case that I had a TLC epiphany – I realized that the only people that I could ever count on to help Mike was the jury – my fear of trying this case had suddenly shifted.

I did get the discovery I needed to tell the story of the bad guy. The trucker had been through a hurry-up training program and had never been given over-the-road training in winter driving conditions. The day he hit Mike was his 61st day on the road as a commercial truck driver and his first day driving on snow and ice. The trucker also had made a statement that he had been inattentive just before the crash with his CB radio. The trucker had been fired immediately after the crash.

I knew before going into trial that my judge was the kind of person that is best expressed by the word that Milton Grimes has promised not to say anymore. Even so, things got way worse than I expected.

It became clear on the first day that all the “character” evidence was coming in, including extrinsic medical records and police records of the intravenous drug use and other “bad acts”. When I was mentioned to his honor that there was a specific rule of evidence that forbid this kind of approach in a civil damages trial, he informed me: “It’s not my problem that you have drawn a bad case Mr. Kelly.” That stirred-up some internal dialogue.

Mike had lots of bad acts going for him. He was a former coke addict who had contracted hepatitis C from a dirty needle. He was also a chronic alcoholic, and he had dabbled in domestic violence with Vicky. He had a prior felony, he got a DUI four moths after the truck crash, and he had three failed efforts at detox, two of which came after the truck crash. He also had not worked in the four plus years following the crash, and he had never made more than $25,000 a year when he was working.

His honor began interrupting me during voir dire and never stopped during the five days of trial. He stopped me four times during the 20 minutes he allowed for closing argument, asking me to approach the bench twice like some errant school boy who needed discipline. Every single expert I called was interrupted and scolded by his honor during direct examination. He rolled his eyes and piddled with his books and his PC when I was presenting my case, and then looked absolutely riveted when the defense lawyers got to the podium.

The first night I was feeling like it was going to be the longest week of my life. I got some really great advice from Louise Lipman, who suggested that I try to figure out a way to take back the courtroom, and whatever else I did, to try to get the smile back onto my face. Things got better on day two.

I had offered to dismiss the trucker early in the case if the trucking company made him available for trial. The offer was refused and the defense showed up at trial with the trucker and his fiancé in tow, obviously planning to play that sympathy card. So, Tuesday morning I called the trucker out of turn and after being exceptionally nice to him, I asked whether he had been informed of our offer to dismiss him months ago. There was an objection that I had never heard before, a three part harmony involving a judge and two defense lawyers, and after a trip to the bench (woodshed in this case) where I was informed that this was a court and not a jury issue, the next thing I did back at the podium was move to dismiss the truck driver. Another trip to the bench resulted in his honor then informing the jury that the parties had reached an agreement of dismissal.

I asked the trucker six "isn't that true,” questions that told the bad guy story and sat down. The defense was not prepared to ask him any questions so they passed him until their case in chief. When the trucker came off the stand and went for counsel table I stood and mentioned to his honor that he was no longer a party and should be rightfully seated in the gallery with the rest of the spectators. You have never seen a more petulant look in your life than the face of that truck driver at that moment. We didn't see him again until the last day of trial and I called every witness I could out of turn over the next four days.

I got my smile back and I never once showed any anger or irritation at his honor. I did flip a defense layer the bird out of the sight of the judge on the last day of trial and that was fun. He called me out in the hall to fight, which was even more fun.

Every single TLC method I employed worked. I had set up a compassionate cross of the defense doctor, who was an accomplished assassin. It was easy to effectively destroy his credibility at trial while seeming quite reasonable and polite. I got off method a couple of times, and it was the anger taking hold of me. Anger took me away from the story every time. I need to work on the difference between feeling righteous indignation and feeling anger.

I missed a great soft cross opportunity because of my anger at being fucked-over in the discovery phase of the case. When the spokesman for the trucking company took the stand he spent twenty uninterrupted minutes telling the jury what a great guy he was, including his devotion to his wife and two wonderful children. What a picture I could have drawn of this nice family out for a Sunday drive, children in the back seat, oblivious to the ill trained and inexperienced truck driver barreling up from behind them at a 30 mile per hour closing speed.

I got some great theme advice from Louise, which I used for closing. I told the jury that I didn’t know how fast anyone had been going, because the trucking company had taken away the black box, and that they had to become the black box. I was interrupted by his honor whenever I used the word “I” in my closing, because what “I” believed was irrelevant. I had planed to use Gerry’s “Wise Old Man” parable to end my close. During my introduction that this parable was told to me by a man who had taught me more about life than anyone, his honor scolded me like he knew exactly whom I was talking about. So, I looked at him and I said, “Your honor, can I please just tell the jury my parable?” Before he could answer I looked each juror in the eye and told the parable. My eye contact told me that every one of them got the meaning of the bird being in their hands.

I asked the jury for $3 million. I had eye contact with each of them when I told them that I wasn't sure it was enough. It felt great to do that, because that was exactly how I had come to feel about the money.

The jury came back with a 51 to 49 % comparative negligence split in Mike’s favor. But they were cruel to Mike because of the character evidence and gave him $300,000 and change for economic damages and not one penny for pain and suffering. His honor might just as well have erased a zero off the verdict form.

The verdict gets Mike a new damage trial before nine out of ten appellate courts. My early efforts to get the trucking company to bump-up the verdict and settle with Mike have been ineffective, so I’m filing an appeal. Who knows, maybe the case settles before we come back and do it again.

I have mixed feelings about the verdict. I had trouble admitting my true feelings about Mike and Vicky. I kept pussyfooting around the obvious – that they were not very likeable people, and that I did not like them very much. I was representing Mike because he was a human being, and no matter who a person is, they don’t deserve to be run over by a truck driver who had no business being out on the highway. I feel that if I could have been more honest I could have called-out this jury’s bias before they got into the jury room, which would have resulted in them giving Mike more money.

I have never had more fun trying a case in my life. I took strength every day knowing where I was coming from. I feel like I am becoming a TLC lawyer, and the confidence I drew from that was profound. I believed I would win this case.

Monday, April 4, 2011

Dallas Attorney James Girards Recognized as One of USA's Top Attorneys for 2011

Congratulations to TLC Grad, Jim Girards!

DALLAS -- Dallas' Girards Law Firm is pleased to announce that firm founder James E. Girards has earned a spot as one of the Top Attorneys in the Country for 2011 by Newsweek magazine.

Each year, Newsweek magazine identifies no more than 40 law firms nationwide for recognition for excellence in their profession. The Top Attorneys in the Country were included in the March 28, 2011 issue, which is on newsstands now.

Read more here!