Monday, December 10, 2012

Be Wary of Free Seminars Following Multiple Victim Accidents

     There was a tragic accident on the Seward Highway North of  Girdwood in which 11 persons were injured.  See "Crash Near Girdwood Closes Seward Highway,"

      It is not unusual following an accident for accident victims to receive phone calls or mailings promising "no charge" health care or a "no charge" seminar on their rights.  Accident victims should be wary of these solicitations.   A multiple victim accident such as this will trigger many legal issues.  These include:

1.  An investigation of the facts (Most often provided by the Alaska Trooper Report)
2.  An assessment of the available liability insurance coverage.  With multiple victims, this insurance may be inadequate to compensate each victim individually.
3.  An assessment whether any of the victims may be accused of bearing partial responsibility.  Most often, this is directed to the driver of the vehicle.
4.  An assessment of injuries.
5.  An assessment of losses.
6.  An assessment of other insurance coverages such as Underinsured Motorist.

While these are the legal issues, the most important issue is recovery from injuries, something that is addressed by a physician, not a lawyer.  I recommend that accident victims make medical treatment their highest priority, even higher priority than meeting with my office.   When life deals you a low card in the form of an accident, you have to play your hand smartly.  See

Monday, November 19, 2012

Workers Compensation Liens: The Client's Duty to Repay and the Employer's Future Credit

   When a person suffers a work injury, he receives workers' compensation benefits.  These include both payment of medical benefits as well as payments of Disability Benefits.  Over time, there may be other benefits such as partial impairment benefits and vocational retraining benefits.

    When the work injury is caused by someone other than the employer, the worker has a "third party claim."  
Should the worker be successful in recovering his losses from this party, the worker has 3 duties to his employer and its workers' compensation insurer.

1.  The worker must obtain the employer's consent to settlement.  If  the worker fails to do this, the employer  is no longer responsible for paying workers' compensation benefits.   This is true even if the "settlement"  means the worker is giving up on his case.

2.  The worker must pay back any worker's compensation benefits.

3.   If the worker is able to recover more than he has received in workers's compensation benefits, the remaining amounts serve as a credit against future workers' compensation benefits.

While actual results depend on the facts of the specific case, a lawyer can negotiate a reduction of the worker's compensation "pay back."  At a minimum, the workers' compensation insurer must pay the pro rata share of any legal fees incurred to recover the pay back amounts.  Beyond this, a workers' compensation insurer may be willing to further reduce the pay back if the injured worker is willing to agree not to receive further workers' compensation benefits.

While one cannot predict the result in all cases, you have to play your hand smartly.  See

Tuesday, November 6, 2012

Motorcycle Fatality Due to Improper Conduct by State of Alaska DOT

     Last week, I was able to successfully negotiate the settlement of a motorcycle fatality case against the State of Alaska, Department of Transportation ("DOT").  The basis of DOT responsibility was DOT workers' failure to clean up after asphalt repair with the result being that the motorcyclist lost control of his bike on small pieces of gravel entering a sharp curve.

     Clients often ask about what makes a case strong and what makes a case weak.  Here are  what I considered to be some of the keys to success in this case.

1.   Photographic confirmation of asphalt repair work (DOT workers could not remember what work they did except in the most general terms)

2.   Neutral witness confirmation of hazardous road conditions specifically on the day and time of the accident.(DOT workers simply denied they would ever do shoddy work)

3.    Photographic and record corroboration of neutral witness testimony. (In this case, one witness actually called DOT to complain and there was a record confirming the phone call).

4.    The deceased having a clean traffic citation history so as to rebut accusations of reckless driving. (Rightly or wrongly, there is a stereotype of motorcylists).

5.    The deceased driving a touring motorcycle while wearing helmet and leathers.

6.    Advising the clients how the case could be lost despite strong facts.   One consideration in this case is that a jury deciding a claim against a government entity appreciates that the verdict will be paid from tax dollars.  Just as a popular television commercial says "Its our Oil!" the jury will be saying "Its our Money."

The motorcyclists family were deserving clients and I was happy that I could help them.  In my opinion, they played their hand smartly.

Monday, October 1, 2012

The Result of A Successful Appeal: Retrial

     Last week, the Alaska Supreme Court Opinion in my Case, Thompson v. Central Plumbing was issued.
The Supreme Court held that the Trial Court had made a mistake in not allowing my client's doctors to testify that his serious injury was caused by a T-Bone collision and that the Trial Court had made an additional mistake in not instructing the jury that the negligent driver was also responsible for any medical mistakes that the defense doctor testified was the alternate explanation for the client's injuries.    As a result of not being allowed to hear relevant evidence and to be properly instructed on the law, the jury, returned an unfair verdict.
     Clients sometimes misunderstand what it means to "win" on appeal.  In this case, the "win" does not mean that my client will soon be paid a fair amount for his injuries.  Instead, it means that the first trial is considered to be a "mulligan" and that there is a "do-over" of the trial with respect to damages.  This client's case has been a long journey with the appeal, alone, taking 2 years of time.  Now, he is waiting for a second trial, free from the mistakes of the first trial, which most likely will be scheduled within the next year.
     It is the long wait that requires clients to play their hand smartly.  However, sometimes they have no choice but to pursue their remedies to the end.  See

Monday, September 17, 2012

How Legal Consultation is Helpful

   This weekend's Anchorage Daily News contained an article about a young man involved in a serious motor vehicle accident that resulted in catastrophic injuries in a situation in which the responsible driver most likely had minimal insurance.  See  In cases in which the responsible driver has inadequate insurance, clients ask what possible help a lawyer can be.  Here are some of the steps a lawyer will take to try and help the injured person.

1.  Investigate the existence of other Insurance policies that could potentially provide coverage for the injuries and losses.
2.  Recover the available insurance of the responsible driver.
3.  Investigate the potential responsibilities of persons other than the driver.
4.  Assist in filing an Underinsured/Uninsured Motorist Claim under the insurance of the injured person..
5.  Investigate the possibility of additional Underinsured/Uninsured Motorist insurance coverage.
6.  Negotiate discounts and forgiveness of liens of medical providers, health insurers, Medicare and Medicaid.

Of course, depending on the specific facts, there may be other issues.   In catastrophic accidents, it is even more important to play your hand smartly.  See

Tuesday, September 11, 2012

The Predictability of "Independent" Medical Examinations Requested by Insurers

   Idealists believe that litigation is about the search for truth.  The reality can be very different.

    I just received the report of a supposedly independent medical examination performed by a physician routinely requested by insurers and defense counsel.  This particular physicians is a part owner of the agency that schedules the medical examinations and earns approximately $200,000 annually above and beyond the income of his active medical practice for performing these examinations and preparing these reports.

   My client was injured in a motor vehicle accident and, while she largely recovered, has had some ongoing specific pain issues.  The physician's conclusion was that she had experienced a cervical strain that healed within 3 months.

    I see this conclusion regularly from physicians regularly doing business for insurance companies.  It always raises questions in my mind as to whether the physician has ever seen or experienced a patient with pain issues more than 3 months following an accident and, if so, whether the physician tells the patient that his injuries are healed, and, whether the physician continues to provide treatment for this imaginary injury.

   With respect to this particular physician, he is noteworthy for a survey of his examinations of workers' compensation claimants in which out of 20 claimants, he disagreed with the treating physician 19 times.  Sometimes you see a pattern.

   You have to play your cards smartly.  See


Thursday, August 23, 2012

Helicopter Accident Shows Wisdom of Legal Consultation

  A tragic helicopter accident near the Pogo mine which resulted in the death of the pilot shows the wisdom of consulting a lawyer.  See   The Preliminary Investigation suggests that one of the causes of the accident was a defective helipad.

  Because of it being a work accident, Alaska law provides a minimal safety net through workers' compensation benefits, a benefit which precludes the pilot's family from bringing a loss claim against the pilot's employer or the Pogo mine owner.  However, if the helipad was constructed by a subcontractor, the family may have the ability to pursue a claim for full recovery.  In advising the family a lawyer would investigate the contractual relationships of the parties.

  You have to know your hand in order to play your cards smart.  See


Tuesday, July 31, 2012

Paybacks are a Pain: Health Insurance, Workers' Compensation, Medicaid, Medicare

   The most important priority for accident victims is necessary medical treatment.   Whether  paid by Health Insurance, Workers' Compensation, Medicaid, Medicare, each payor is protected by "subrogation" or "lien" rights.    This can best be explained as all medical expenses must be repaid out of any recovery.  This is rationalized under the principles of "one cannot recover the same damages twice" and "this is how these programs minimize their costs."  Every dollar paid back is one less dollar for the client.

   Depending on the specific facts of each case, a lawyer may be able to negotiate reductions in these paybacks, sometimes entirely.  You have to play your hand smartly.  See

Thursday, July 12, 2012

Summer Aviation Accidents in Alaska

  In Alaska, summer brings airplane accidents.  Part of this can be explained by the fact that there is more flying in the summer than in the winter.  Part of this can be explained by pilot errors in judgment because they want to go on their fishing or hunting trip.
  Yesterday was no exception.  See Homer Plane Accident Fatality.  A Cessna 206 on floats flown by an experienced pilot flipped in Beluga Lake in Homer.  The pilot and passengers were senior management employees from MEA, the electrical cooperative serving the Mat-Su Valley, on their way to a fishing trip.   Sadly, one of the passengers died with  the other passengers suffering injury.  
   Following aviation accidents, I often receive calls from surviving family or injured passengers.  My advice is consistent:
    1.  Focus on obtaining the right medical care for any injuries or grieving for the loss of a loved one.  For the most part, the circumstances surrounding the crash will be investigated by the NTSB and possibly the FAA.  On a personal level, in the greater scheme of life, the need for medical treatment or simply grieving trumps any other action. 
    2.   Alaska has a 2 year statute of limitations, one of the purposes of which is to allow medical treatment or grieving to occur.
    3.  There is no reason to talk to the air carrier's insurer until you have allowed time for medical treatment or grieving.  I have had several occasions where these conversations are used against the accident victim. 
    You have to play your hand smartly.  See

Friday, July 6, 2012

Motor Vehicle Accident Recovery: A Short Primer

With the holiday week, I have had a number of calls regarding motor vehicle accidents and what can be recovered.  Here is a shorthand list of the basic items of recovery:

Property Damage to your vehicle measured by the cost of repair or the Actual Cash Value of the vehicle (Note that this is not the replacement cost)

Medical bills, including future medical bills (But if these were paid by your health insurer, your own vehicle insurance, or Medicare/Medicaid, you have to repay back)

Loss of income, including future loss of earnings if your injuries prevent you from returning to work.

Non-economic loss (pain, suffering, emotional distress, forced changes in your life because of injuries, the inconvenience related to the accident)

No matter how severe the accident, I do not suggest that clients hope for recovery in the form of punitive damages.  By law, 50% of these damages awarded at trial are paid to the State of Alaska with the client, not the State of Alaska assuming the risks of litigation.  At the same time, these are the verdicts most often appealed.

You have to play your hand smartly.  See

Thursday, July 5, 2012

Port of Anchorage Accident

    An accident occurred at the Port of Anchorage in which a security vehicle went off the dock causing a man's death.  The cause of the accident remains under investigation.
     The accident raises a basic safety question:  Someone must have had the responsibility for conducting a safety analysis of the port and addressing how one should address the hazard of vehicle traffic near water and how to prevent this consistent with other port operations.

Wednesday, June 6, 2012

Juror Opinions Re Bicyclists

   With summer, I have received a number of calls regarding accidents involving bicycles:  both bicyclists being injured and drivers being hit by bicyclists.   Motorists just do not see bicycles and do not watch out for bicycles.

   This side of cell phones, jurors have the strongest opinions about bicyclists.  Jurors talk about how they believe bicyclists regularly ignore safe traffic rules by riding on sidewalks, going the wrong way on one way streets, rolling through stop signs.  While you would think that jurors who are also bicyclists would be more understanding, these jurors will talk about how they would magically have somehow avoided an accident.

    What does this mean for bicyclists?  Because a bicycle and a helmet is no match for most motor vehicles, bicyclists need to show extra care.  If an accident results in injury, you have to play your hand smartly.  See

Tuesday, May 29, 2012

Memorial Day: The Start of Motor Vehicle Accident Season

  Memorial Day marks the start of summer.  With summer, motor vehicle accidents increase.  Here are some thoughts to drive by.

1.     Watch out for motorcycles.  It is easy to lose them in your blindspot.
2.     Check your rear view mirror.  While you have control over where you vehicle is going forward, you have no control over the person behind you who is not paying attention.
3.     Be especially careful on the Seward Highway.  I have had too many cases involving vehicles trying to pass so that they can move up in line and get somewhere 5 minutes faster.
4.     Remember that construction zones carry double fines.
5.     If you are an accident victim, it is more important to see a doctor before seeing a lawyer.  Remember that there is nothing a lawyer can do to make you better.

If you have questions, call my office at (907) 277 5234.  Remember:  You have to play your hand smartly.  See

Monday, May 21, 2012

Payment of Physician for Deposition Testimony

    Because being at a deposition means that a physician has been taken away from his livelihood of treating patients, fairness requires that the physician be paid for their professional time.  Without payment, usually in advance, physicians will understandably refuse to cooperate in scheduling their deposition.  At times, this surprises clients.

   What is more surprising is the amount that physicians charge as a "deposition fee."  In a recent case, a New York clinic required payment of $11,000 in advance as the "deposition fee" for a physician's assistant and a physiatrist.  If an additional $1,500 was paid, the clinic would allow the physician to discuss the case with me before the deposition.  A spinal clinic in Denver charged $7,000 for the deposition of a 2 hour deposition of a spinal surgeon.  In the end, these fees are the client's responsibility as a necessary cost of the case.

    What is even more surprising, however, is the inflexibility of physician's offices to refund any portion of the deposition fee should the deposition be cancelled.   In both of the above cases, clinics refused to refund any portion of the fee despite settlement agreements that provided 2 weeks notice of deposition cancellation.  Particularly when the fees are the client's responsibility, it is hard to believe that  2 weeks notice does not allow a physician adequate rescheduling time to put the cancelled deposition time to productive use.  It is also hard to believe that physicians would impose a cost like this on their patients.

  In the end, these practices require the lawyer and client to develop a settlement strategy that avoids unnecessary expenses.  You have to play your hand smartly.  See



Tuesday, May 15, 2012

After Settling Case, Client Has Second Thoughts

  A former client called me because she had settled a claim at mediation through another lawyer and was having second thoughts.  Her settlement had come after a long day of stress at the end of which the defense insisted that she sign a document agreeing to the settlement.  Her concern was that she had been pressured into agreeing to an unfair settlement.

   We talked about both the strengths and weaknesses of her case, the total amount of the settlement and the other important factors.  At the end, while one always hopes for a greater recovery, the client came to the conclusion that the settlement was fair under the circumstances.

    I did tell her that she had 2 unattractive options.  While the client could refuse to complete her settlement, the other side had the ability to enforce the agreement she signed and likely recover the legal fees required to do so, thereby reducing the settlement.  The second option is to terminate her professional relationship with her lawyer in which the lawyer would have a lien for the fee related to the agreed-upon recovery.  

   The more important lesson is that clients should understand the strengths and weaknesses of their case before attending a mediation so that they do not feel pressured to settle their claim.  You have to play your hand smartly.  See

Tuesday, May 8, 2012

The Police Officer's/Firefighter's Rule

   A police officer and firefighter have recently contacted my office for representation on injuries suffered in the line of duty.  The officer was injured by a negligent motorist, was in the wrong place at the wrong time, and the negligence was not related to the officer's task at the moment.  The firefighter was injured on a call.
   There is a legal doctrine called the  "Firefighter/Police Officer's Rule" that precludes recovery for injuries strictly in the line of duty.  The reasoning is that these public servants assume the risk of these injuries when they enter the profession and that this is the reason that their unions negotiate their benefit packages.  However, the same doctrine allows recovery if injuries result from negligence or mistakes having nothing to do with the the call.

   The result is that the police officer can recover for his injuries but the firefighter cannot.   You have to play your card hand smartly.  See 

Monday, April 2, 2012

Postcript: Reinstatement of Maintenance and Cure

   In my last post, I talked about helping an injured seaman whose maintenance and cure payments were cut off by his vessel and employer without cause.  This is an update.
   The United States District Court ordered that maintenance and cure be reinstated.  In doing so, the Judge recognized that injured seaman had the right to ask the Court to order reinstatement and that any doubts in the evidence should be resolved in favor of the seaman.

    Surprisingly, for reasons that I do not understand, the Court refused to order the vessel and employer to pay the lawyer fees necessary to respond to what should have been an unnecessary motion.  As a result, I am asking the Court to reconsider its ruling.

   This continues to show why injured seaman should hire lawyers to protect their rights.  See

Monday, March 12, 2012

The Importance of Maintenance and Cure to Injured Fishermen

   "Maintenance and cure" are the equivalent of workers' compensation benefits for fishermen hurt while working.  "Cure" is the payment for medical care.  "Maintenance" is a daily payment for living expenses.  Both maintenance and cure are supposed to be automatic and not require the involvement of a lawyer.  However, boat owners abuse the system by paying substandard maintenance (Usually $25/day.  Try living on $9,125 a year) and declaring the fisherman to be "cured" when his doctors say otherwise.

   I have spent the last week trying to help a client on this issue.  The injured fisherman called to say that his doctor's office was refusing to schedule an appointment because the boat had not paid the office bills.  When the injured fisherman obtained a copy of his account, he discovered that the boat had not been paying for 4 months without the courtesy of even telling him.  When I asked for an explanation, the boat announced that all maintenance and cure benefits was immediately terminated.  The end result is that I was forced to file an emergency court motion to restart this that, as I write this, has not been ruled upon. 

   It is this type of conduct that shows why injured fisherman require legal representation.  See

Wednesday, February 29, 2012

Why Do Smart Clients Consider Structures After Signficant Settlements

   Over the last 60 days, I have reached settlement agreements in 4 significant cases.  In each case, I strongly recommended that my client "structure" receipt of at least part of the settlement through an annuity.

    A "Structured Settlement" is a settlement in which the client agrees to be paid over time through the opposing party purchasing an annuity.   For example, the client might agree to be paid a fixed amount on an annual or monthly basis.  As another example, the client could agree to receive payment of a fixed sum in 5 years when he knows he will have significant expenses.  There are several advantages to a Structured Settlement.

   One advantage is the accrual of the equivalent of a tax free interest.  Under the Tax Code, recovery for a claim of damages due to physical injuries is not considered to be taxable income.  However, if you deposity that recovery in a credit union account, the interest on that recovery is taxable.  In a structured settlement, the interest component of the purchased annuity is not considered taxable income with the result being that an internal interest rate of 3% may be the taxable interest equivalent of 4%.  In today's economy, getting that interest in a conservative investment is a good deal.  Over time, it makes the settlement worth more.
  A second advantage is that the structured settlement  allows the client to protect his recovery through financial planning.   Personal injury lawyers have too many war stories of clients losing their money through loans to "friends," investments of "partnerships" with other friends, and simply bad spending decisions.  These war stories even include those clients who swear that they will manage their recovery wisely because they know it has to last the rest of their life.   A structure allows a client to do financial planning and schedule the receipt of his settlement for when he needs it most like paying for school, buying a house, or paying for medical treatment.  A structured settlement also allows a client to tell persons asking about his recovery that his funds are locked up in an investment that he cannot change.

   The financial planning advantage of a structured settlement are important for other reasons.  No client should have all of his investments in one basket.  A structured settlement allows a client to address the need for conservative investments in his investment portfolio.

   I am not meaning to disregard the challenges of a structured settlement  and the reasons why a client might decide not to do so.  The annuity company must be a reputable company of significant size and quality so that the client is comfortable that he will receive his future payments.  Also, once the annuity is purchased, its terms cannot change without huge financial penalties.  But every clients has to play his had smart.  See

Thursday, February 9, 2012

Dram Shop Trial

   I recently completed a 2 week dram shop case in which the parties agreed to a settlement on the 10th day of trial.   It was a hard case emotionally because the client had lost an arm in a drunk driving accident and committed suicide 2 years later.   Despite confirmation that a hotel manager had sold liquor to 19 year olds from both eyewitnesses and business records, the hotel did not make any serious effort to resolve the case until trial.  A significant factor in settlement was the health of my client's father who was acting as personal representative and become the client.

   Sometimes you have to play your entire hand.  See

Saturday, January 28, 2012

Representing 19-25 Year Old Men

     I have recently resolved 2 cases in which my clients were a young 19 year old man and a 22 year old man.  I was proud of both clients as negotiations progressed as they were not focused on the anger that results from being the victim of an accident but on all the right issues:  the strength of their case, the defenses that were being raised, the money amounts of their harms and losses, the arguments that the defense always make that they both shared responsibility for their accidents, and the need to reimburse their health insurer for the medical care.  Regardless of age, these are not easy issues for anyone to keep focused.
     You have to play your hand smartly and they young men did so.  See