What Cruise Ship Passengers Should Know After An Accident

  Todays' news reported a tragic accident in Southeast Alaska.   National Geographic tour passengers from the cruise ship, Seabird, were on a Pacific Wings DeHavilland Beaver that crashed into a mountainside.  The causes of the crash remain unknown but one man, a respected engineer from Los Alamos died and other passengers were seriously injured.  Because of the steepness of the mountainside, basically a cliff, the survivors were evacuated by use of a helicopter winch.

  Cruise passengers who become accident victims while on an excursion need to pay special attention.  Their claims can be treated differently from the claims of other accident victims to the detriment of the Cruise Passenger Accident Victims.

  The most important document affecting Cruise Passenger Accident Victims rights is the Ticket Contract.  The "ticket"is more than a stub, more than a boarding pass, and is long enough that you know it has been written by the cruise's lawyers.  Hard copies of the Ticket Contract may be provided passengers but, increasingly, the Ticket Contract is only provided online or electronically.  In the end, the Ticket Contract is written by the Cruise Company for the protection of Cruise Company if the Cruise Passenger has a dispute.

   The Ticket Contract commonly attempts to change Cruise Passenger Accident Victim rights in 3 ways.  One way is a Contractual Statute of Limitation.  The language of the Ticket Contract will require the Cruise Passenger Accident Victim to present a claim in a period shorter than Alaska's 2 year statute of limitation and I have seen periods as short as 6 months when the Cruise Passenger Accident Victim is focused on medical treatment and controlling his losses and before he is able to focus on compensation for those losses.  Interestingly, on one occasion, the Alaska Supreme Court ruled that this type of conduct is unenforceable. But there is no downside to the Cruise Company raising the defense and zealous advocacy will trump more humanitarian principles.  Because its better to avoid this defense if possible, the recommendation  for Cruise Passenger Accident Victims is to locate the Ticket Contract and know their rights.

   The second attempted change of the Ticket Contract is to require that any lawsuit be filed in a specific venue, forum, state or city.  For example Carribean cruise companies frequently require suit be filed in Miami and the passengers of the Italian cruise ship, Costa Concordia that ran aground with loss of life were required to file in a place in Italy.  Again, the recommendation for Cruise Passenger Accident Victims is to locate the Ticket Contract and know its requirements so that they can determine whether this provision is enforceable.

   The most disappointing provision in the Ticket Contract is often an attempt to deny legal responsibility for passenger excursions.  When one purchases a cruise, a passenger buys more than transportation on a boat.  The passenger buys the services of a professional organization to provide guidance as to appropriate and safe travel activities and to steer the traveller away from unsafe activities.  Excursions sold in conjunction with the cruise contain an implicit endorsement by the Cruise Company.   The Cruise Company's legal responsibility for the actions of its excursion partners will depend on the specific facts of the excursion, the written agreements with the excursion provider, and other facts.

    If you have the misfortune of being an accident victim, you have to play your hand smartly. See WWW.JUNELAWYER.COM.

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Why Clients Should Not Obsess About Invasive Discovery Requests

   In every case, the defense sends out standard discovery requests:  written questions called interrogatories and requests for documents.   The purpose of doing this is to get as much information about an accident victim as possible in the hopes of uncovering something that will cast doubt as to the accident victim's credibility, whether the accident victim has had similar injuries before, and the accident victim's earnings history.   Examples of these standard requests include the listing of every health care provider for the last 10 years and the name, address, and wage information for every employer.   The only way to respond to these efforts is to provide the information requested and recognize that the accident victim's past is basically an open book.

    Clients who are involved in a lawsuit for the first time are often overwhelmed both by the number of the requests, the detailed information being sought, and how far in the past information is being sought.  Here is what I tell Clients.

1.    With few exceptions, we answer all questions and provide all possible documents.   Because the Client is asking for money in compensation for injuries, the defense has the right to ask these questions.  If the Client  refuses to answer, the Client may be giving up any right to compensation.  More important, refusing to do so suggests that the Client has something to hide or lacks confidence in his case.

2.    Clients have nothing to hide.   To the extent that the questions focus on personal issues such as drug addiction or tax returns that have not been filed, I assure Clients that they are not the first persons to find themselves in this situation and that they have nothing to be embarassed about.  After all, it is the Client that was the victim of the defense's misconduct, not the other way around.   Clients should stand tall and stand proud.  Otherwise the defense wins.

3.    It is actually in the Client's interest to answer the questions and provide all possible documents.  Doing so creates new evidence to support the case, identifies new witnesses that are important, protects against overlooking issues, and, in the end, makes the case stronger. Never turn down the opportunity to make the case stronger.

4.   If the defense requests documents that the Client does not have, it is OK to say so.   So long as the Client has made a good faith effort to locate requested documents and confirm that, to the extent they may exist, the documents are not in the possession of the Client, there is no legal requirement that the Client needs to collect documents he does not possess.  All I ask Clients to do is to confirm whether they possess or control the documents or not.

5.  For the same reason, if the Client does not know a date or the address of a prior employer, it is also OK to say so.


The bottom line is that the Client should do everything possible both to eliminate any  excuse that the other side might have for not valuing the Client's case and to make certain that the strongest possible case is being presented.  If this includes providing information having nothing to do with the case, so be it.    The Client has to play his hand smartly.  See www.Junelawyer.com

Why Are Alaska Village Cases Challenging?

     I am in the process of finishing a case for a client from Wainwright, Alaska.  I also currently have cases involving accidents in Newtok, Kasiglok, and Kwigillingok.   Each of these communities are Alaska Native communities not accessible by the road system with small populations.    Even straightforward cases involving bush communities are challenging.  Here are a few of the reasons why. 

   Because the clients and witnesses live far away, in-person meetings are few and difficult to schedule.  There is no substitute for face-to-face meetings to discuss the legal and factual issues of a case.  If a client does not understand his case, locating witnesses, supporting evidence and making settlement decisions is more challenging. 

   The alternative to face-to face meetings is using the phone.  However, phone service to the smaller communities is not always reliable.  It is not uncommon to have to try several times before a connection is made.  If the person is not home, you may have no knowledge as to when he will be home. 

   In this day, people often maintain contact and send documents by e-mail.  However, internet service in the smaller communities operates either through phone lines or satellites and is slow. It is not uncommon for village residents to rely on community computers to check email which raises confidentiality issues.

   The last resort is always mail.  But mail delivery takes a week and can be to a General Delivery address which again raises issues of confidentiality.  If the mail requests a phone call or e-mail response, the concerns raised about these issues are raised again. 

   One is always reminded that the residents of small communities do not live the 8 to 5 existence.  Instead, they lead a subsistence life style which means that they can be gone to fish camp or may be hunting and fishing at night.  They "make hay when the sun shines" at different times than we do. 

   Trial becomes another challenge.  Just as it is challenging to communicate with clients, it is more challenging to locate and communicate with witnesses who do not have a direct interest in the case.  When trial comes, one also has to recognize the logistics of bringing the clients and witnesses to trial, including housing while in trial. Finally, one has to be careful with the costs which in the end are paid by the client. 

   The challenge is there but it can be met.  One just has to remember to play one's card hand smartly.  See www.Junelawyer.com



   

Why Its Important for the Lawyer to Speak to Witnesses

   Many lawyers do not call witnesses to ask what happened in an accident.  Instead, they rely on second hand information from investigators and police reports.  Sometimes they will subpoena witnesses.  Whenever possible, I call the witnesses.  90 % of the time, after a phone call or cup of coffee, the case has gotten stronger.

   Over the last few months, there has been a number of examples of this.  By calling a name referenced without explanation in an FAA report, I learned about the existence of an eyewitness to an airplane crash.
By calling the doctor hired by an insurer to examine a client, I was able to confirm that injuries had been caused by an accident.  By calling employees on a work roster, I was able to confirm that ignoring safety rules was a common practice. In one particular case involving road maintenance, a witness would regularly call me to share that the highway maintenance crew were continuing the same practice that had caused the death of my client's father.

   Why don't lawyers call witnesses more often?  Part of the reason is that in a busy practice filled with court Orders and phone calls requiring action, it becomes just another thing to do that can be easily put off.  Another reason is simply the naive belief that reports  or subpoenas will achieve the same goal with less effort  by the lawyer.  Finally, one has to admit that getting a call from a lawyer is rarely "good news" and sometimes witnesses will actively try and avoid lawyers.  I try and overcome this attitude where possible by having clients, if possible, tell the witness I will be calling.

   You have to play your hand smartly. See www.Junelawyer.com

Why Lawyers File Lawsuits

   Few people are excited by the fact that of having a lawsuit.  Every Client asks whether it will be necessary for their case "to go to court."  After the lawsuit is filed , Client ask whether their case will "settle" before trial.  Why, then, when clients want to avoid lawsuits, do lawyers file lawsuits?  The answer is that lawsuits (and trials)  are often required before insurance companies treat clients fairly.  Even then, there is no guarantee.

   Because clients do not like lawsuits or trials, it is my policy before filing a lawsuit for a client to give insurance companies the opportunity to treat clients fairly.  If the insurer does not treat the client fairly, the client decides on the next step. Unfortunately, more often than not, the insurance companies miss out on this opportunities.    

  

    In my most recent example, a friend had a small motor vehicle accident in which she was injured but, fortunately, after 6 months of chiropractic care at a cost of $7,500, she recovered.  She called me after the motor vehicle insurer, an insurer known for advertising its low rates,  offered to settle her claim by paying $7,500 to the chiropractor and the small sum of $1,500 to the client for the interruption of her life. After the filing of suit and the passage of 1 year, the motor vehicle insurer offered to settle her case by paying the chiropractor and paying the client $10,000 for the interruption of her life.  This shows how insurance companies treat clients that file lawsuits more fairly than clients that do not. 

    I have had other similar experiences in other contexts:   One example is the vessel insurer that represented that, with "a little more medical information," it would be in a position to treat a client fairly only to have 12 months pass with no action. Another example is the airline insurer that represented that, if medical and tax records were provided, it would treat my client fairly in valuing losses only to advise after the records were provided that its lawyer would have to obtain the same medical records a second time directly from the physicians.   

   One wonders whether the insurance companies appreciate their missed opportunities.  You have to play your hand smartly.  See www.Junelawyer.com

 

Allocation of Fault a/k/a The Discount Coupon Defense

    Clients naturally ask how a party that clearly has acted wrongfully can not be responsible for paying 100% of the losses resulting from wrongful conduct.  For example, how can the driver making the bad left turn not be responsible for the injuries he has caused, how can the bar that wrongfully sold liquor to a minor not be responsible for the resulting drunk driving accident, and how can the foster home not be responsible for its employee's sexual assault on a resident.  The answer is the Discount Coupon defense in which the responsible party argues that, because others are at fault, its legal responsibility is limited to its share of the fault.

   Because of laws passed in 1997 questionably called "Tort Reform,"  parties legal responsibility is limited only to their share of fault.  What this means is that parties that have acted wrongfully look to blame others, including the accident victims for accidents.  For example, the driver making the bad left turn will say that the accident victim driving the other vehicle should have seen the bad left turn and avoided the accident, the bar will say that the minor is more responsible for the accident, and the foster home will say that its employee is responsible for the assault. 

   How does this work?  For cases that go to trial, the Court requires juries to allocate percentages of responsibility for accidents.  If the jury finds that accident victim to be 50% responsible for the accident, the bad left driver only has to pay 50% of the resulting losses.  If jury finds the minor is 90% responsible for driving drunk, the bar that sold the liquor only pays 10% of the resulting losses.  Similarly, if the jury finds the foster home employee is 90% responsible for the sexual assault, the foster home only pays 10% of the resulting loss.   In other words, the percentage is equivalent to a Discount Coupon for wrongful conduct. 

   I make no attempt to justify this system as being either fair or just, particularly with respect to situations like the bar or the foster home which the law requires to protect the innocent public from their wrongful actions.  However,  the Legislature in its infinite wisdom says this is how justice in Alaska works.    Accident victims have to play their hand smartly.  See www.Junelawyer.com  

How Lawyers Help Clients Deal With Insurers

     A Client came to me for help help on a problem.

     Through his work, he had purchased a small accident policy that was supposed to pay $10,000 in medical expenses and a small disability benefit for 6 month.  He also insured his long-haul Kenworth tractor with the same company.  Following a one vehicle accident that the Client believed was caused by faulty repairs leaking carbon monoxide into the cab, the Insurer denied all benefits, saying that the accident must have been caused by some unknown illness or disease.  The same Insurer was unresponsive on the Client's claim for the total loss of his tractor leaving a voice mail with no further explanation that all proceeds would be paid to the lender.

       I can remember the meeting where the Client shared his frustrations in how he had purchased the insurance to protect himself in case of an accident and how it had turned out to be worthless.  Convinced that his problems were due to misunderstandings and a failure of communication, my recommendation was that he file a Complaint with the Alaska Division of Insurance.  The Client's even more frustrated response was to say that he had!

        With the Client having given the Insurer every opportunity to perform as it had promised, a lawsuit was filed for insurance bad faith.  After a year, the Insurer finally paid the promised benefits in full, plus interest, plus additional damages.


       The playing field between an insurer and its insured is not level.  You have to play your hand smartly.  See www.Junelawyer.com