Mobile Personal Injury Lawyer

What Are Emotional Distress Damages? - Part 1

Pete Mackey — Thu, 26 Jun 2008 07:40:00 GMT

A friend of mine recently told me that he had read about a jury awarding emotional distress damages in favor of a husband and wife whose home was improperly wired by an electrical contractor and, as a result, burned down after they got out with only the clothes on their back. He was perplexed that the jury awarded these damages in addition to the cost of rebuilding the home, the value of the contents and the family's loss of their use of the home while it was being rebuilt. Emotional distress damages, I explained to him, are no different than damages for physical pain and suffering that a person may recover in an automobile negligence lawsuit. In Alabama, there is no fixed monetary standard and the amount is left to the sound judgment and discretion of the jury. While the other damages awarded by the jury may turn out to be a tidy sum, they do not even begin to compensate the family for the grief and inconvenience caused by the electrician's negligence. These damages cannot be presumed, however, and must be proved by direct evidence. In future installments, I will discuss what types of cases these damages are available in and how the Alabama Supreme Court has determined the appropriateness of an emotional distress award.

Originally posted at InjuryBoard by Pete Mackey

Is Alabama Really That Unfriendly To Business?

Pete Mackey — Wed, 25 Jun 2008 07:31:05 GMT

It is your first trip to the State of Alabama. You have traveled to Mobile on a business trip. Your mission is to assess Alabama as a potential site for your company's expansion. As you read the op/ed page of the local morning paper , you start thinking that you are wasting your time. The lead editorial hits you in the face - " Alabama Needs to Flee 'tort purgatory' ." A survey of corporate lawyers by the the U.S. Chamber of Commerce ranks Alabama close to the bottom for business friendliness. You quickly pull out your notebook and computer and fire up Google, almost afraid of watch you might see. At least some confirmation will allow you to cut the trip short and getback home.

Your first search, however, pulls up encouraging news- Thyssenkrupp, the German steelmaker, is building one of the largest private industrial developments in U.S. history 30 miles north of Mobile. Wow! If the newspaper is right, those folks at Thyssenkrupp sureare suckers. Further searches reveal that automobile manufacturers have been building production plants in the State for the last several years - Mercedes, Honda, Hyundai and Toyota. The follow up stories talk about all of the suppliers that are moving to Alabama to be near those plants. Hmm.. Maybe you need to look at this a little further, you say. When you do, you see EADS North America has selected Mobile Alabama United States Manufacturing location for the KC-45 airplane contract if and when that company wins the award.

Now you are really confused. Why would some of the largest, savviest product manufacturers in the world choose the State of Alabama if it is so unfriendly to business? The answer is, this state is not unfriendly to business. The tort system in Alabama has had absolutely no measurable effect on businesses leaving or failing to locate here. I would invite any reader out there, including the editorial board at the Press Register, to cite some statistics that prove me wrong. As for those corporate attorneys who were surveyed by the Chamber of Commerce, perhaps they should do a little more homework before they fill out their next survey. Better yet, maybe they should try to figure out how it came to be that the insurance industry garnered record profits in the years following some of the most devastating (dollar wise) disasters in history.

Originally posted at InjuryBoard by Pete Mackey

Nursing Homes Demanding Arbitration/How To Draft A Power Of Attorney To Prevent Arbitration

Billy Cunningham — Tue, 24 Jun 2008 10:14:45 GMT

Family members who sign their loved ones into nursing homes are often automatically signing arbitration agreements without realizing they are signing away rights to a jury trial if the nursing home neglects or abuses a resident. From a strictly legal point of view it is difficult to understand how one person can give up rights another person has. However, that result is exactly what a number of courts have decided when arbitration agreements are signed. It can be devastating to learn that nursing home abuse or neglect cases cannot be brought before a jury.

Many times the family member may have a power of attorney or durable power of attorney for the nursing home resident. Getting a power of attorney is important and an excellent way to plan for the future. However, that power of attorney should not be used to give up rights if nursing home neglect or abuse occurs. One way to prevent losing the right to a jury trial is to have your attorney draw a power of attorney or durable power of attorney limiting the power to give up jury trials. Here is a sample language our firm includes in powers of attorney in Alabama and Mississippi:

No Power to Agree to Binding Arbitration. Although I have given my Agent this general and durable power of attorney, I specifically withhold from my Agent the power to agree or consent to binding arbitration, or to agree to any other process that would preclude the right to have a jury decide any issue in controversy concerning my person or my property; this does not, however, preclude non-binding alternative dispute resolution processes such as mediation.

See your lawyer and have powers of attorney with similar language drawn up for you and your loved ones. Do not let nursing home neglect or abuse go unanswered.

Originally posted at InjuryBoard by Billy Cunningham

A New Home Warranty May Not Be All That You Think It Is

Pete Mackey — Wed, 18 Jun 2008 07:03:50 GMT

Youare buying a brand new home.� Youare excited - you should be.� Atclosing, the builder hands you a warranty on your new home.� It may have been mentioned back whenyou first spoke with your builder, but you cannot remember.� In any event, what's not to like aboutgetting even more protection on what is probably the biggest investment youwill ever make? Depending on the warranty provided, you may be getting lessthan the builder is legally obligated to provide had you not accepted thatpiece of paper.�

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InAlabama, your builder was required to follow the building code adopted by yourCity or County.� In turn,inspectors with the City or County came out during construction and looked ateach step in the process to make sure it was in compliance with thosecodes.� In addition to thosebuilding code and permit requirements, Alabama requires a builder to build ahome in a good and workmanlike manner.�That is the "Standard of Care" that each builder must follow.� Most builders do a good job, take pridein their work and go the extra mile for their customer.� Some do not.

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Why,then, should you be careful about accepting a new home warranty? Well, read thedocument.� It may have an arbitrationclause.� If it does, you are givingup your right to a trial by jury in the event that problems arise that are thebuilder's responsibility.� Therequirements for reporting problems or defects, and the time frame for doingthat reporting, may be less than what the law requires without a warranty.� Finally, you may be agreeing to limityour damages that you could recover in the event that you make a claim againstyour builder.�

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Werecommend that you think hard before you accept a new home warranty in theState of Alabama.� You may begiving up legal rights by accepting that warranty.� If the builder tells you that the warranty that he or she isproviding gives you added benefit, ask if they are willing to add the followingas a term - "the warrantor agrees that this warranty provides all rights andremedies available to the purchaser under the law of this State and, to theextent that it does not, the law of this State will prevail in each suchinstance."

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Wewill be happy to review any new home warranty that you offered, at no cost,and give you our opinion on where you stand.

Originally posted at InjuryBoard by Pete Mackey

Should I Hire a Home Inspector Before I Buy?

Pete Mackey — Wed, 18 Jun 2008 06:59:47 GMT

Whenyou made a offer on your new home, your realtor no doubt pointed out that you could make your offersubject to a home inspection.� Thatway, if you found something that you did not like, you had a basis forwithdrawing your offer and getting out of the contract.� Is it a good idea to make your offercontingent on such an inspection? Absolutely.� Is it a good idea to head to the yellow pages and hire anhome inspector?� Maybe not.

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InAlabama, a person can be licensed by the State as a home inspector with verylittle experience.� Someone with noconstruction experience whatsoever can take a two week course, inspect homesfor a year and be "certified" as a licensed home inspector.� Would you hire someone to build yourhouse with these type qualifications?�Of course not.� That is notto say that there are not a lot of qualified home inspectors who do qualitywork.� The point is, it is not hardto become licensed in Alabama without the requisite experience to do a homeinspection that is envisioned by the new purchaser.

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Moreover,Alabama has adopted the ASHI standards of practice as the "standard of care"that a home inspector must meet in any given inspection.� When you study those standards ofpractice, you realize that you are not getting a whole lot of bank for yourinspection buck.� Not only that,but the things that ASHI DOES not require can give you pause.� For instance, an ASHI certifiedinspector is not required to offer an opinion as to the adequacy of anystructural system or component.�

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Youmight respond, "that is exactly the type of thing that I was hoping my inspectorwould."��We agree with you.� We thinkthat someone who inspects your home should tell youit is sound.� In our opinion, thesafest course of action for a prospective homeowner is to hire a professionalengineer or experienced home builder/remodeler to do an inspection - someone who is both qualified and willing to provide these types of opinions.� When you hire such a person, look atthe contract.� READ ITCAREFULLY.� Is there an arbitrationclause? Are you willing to give up your right to a trial by jury if you laterdiscover substantial problems with your home that should have been revealed bythe inspection?� What exactly isthe inspector agreeing to provide?�You may spend a few hundred dollars more on the front end, but it couldturn out to be well worth it at the back end.

Originally posted at InjuryBoard by Pete Mackey

Medical Malpractice

Pete Burns — Thu, 01 May 2008 11:51:28 GMT

We represent the mother of a 14 year old girl in a wrongful death case. The child was having headaches so her mother took her to the defendant neurologist. He prescribed 200 mlg of desipramine (off label) without doing any kind of a cardiac work up. The child died of a desipramine overdose 33 days later. The defendant surrendered his license after charges were filed in connection with unrelated malpractice upon eleven of his patients. Desipramine is a dangerous drug and if a doctor prescribes it for your child get a second opinon.

I am preparing to depose Dr. Stephen D Silberstein of Philadelphia Pennsylvania who is testifying in behalf of the neurologist. I would be interested in any experience anyone has had with Dr. Silberstein and I will be happy to make his deposition available to anyone who wants it upon request.

Originally posted at InjuryBoard by Pete Burns

Tort Reform Will Save You Money???

Pete Mackey — Wed, 23 Apr 2008 22:34:10 GMT

The next time a group supporting tort reform tells you that your vote will�result in lower insurance rates for the professional being sued that they are looking to protect, ask a question. �Of the states that have passed the tort reform laws you want passed in my jurisdiction, how many have reported a decline�in the applicable insurance premiums? �If they tell you that some states have, ask them to back up their claim with real statistics. Their logic would hold that virtually every state's affected professionals would be basking in the relief of decreased insurance premiums. �Tell them that you are about to embarrass someone. �Post the results here. �Embarrass us - but be sure to post the cite to your authority. �If you do not want to wander through this charade, ask them how their industry did in 2006 and 2007.

Originally posted at InjuryBoard by Pete Mackey

What To Do About Homeowners Insurance

Pete Mackey — Tue, 22 Apr 2008 09:08:52 GMT

Thousands of people in South Alabama are caught in a real bind - their present homeowner's insurance carrier has cancelled their policy and they can not find replacement coverage. �What is a home owner to do? The starting point is to find an independent agent that you can trust who can search out smaller specialty carriers. �These companies are moving into a market that is being created by All-State, State Farm, Farmer's and their like abandoning the citizens of this state in in favor of maximizing what are already record profits for the insurance industry.

... surplus lines, traditionally more expensive, are becoming price competitive for homeowners, some brokers and industry experts say. Investors have poured billions into new insurance ventures, particularly reinsurers, since 2005's Hurricane Katrina. By 2007, that new money was cutting the cost of insurance from these less-regulated carriers, which are far quicker in responding to market changes.

Finding replacement coverage, unfortunately, is only a bandaid solution. �What we need is a strong State Insurance Department that will not let the big players like All-State and State Farm write coverage only where they want to or offer only certain products (like car insurance, for example) in an area. �Alabama's Insurance Department has always enjoyed a cozy relationship with the same companies that it is supposed to be regulating because our legislature lets it happen. �When someone asks for your vote this fall, ask that person where he or she stands on this issue. �If they are not part of the solution, they are part of the problem. �If enough people make this same demand of their legislative candidates, true change will come about

Originally posted at InjuryBoard by Pete Mackey

Lawsuit Bans Furniture Dealer From Doing Business in Florida

Chrissie Cole — Sat, 08 Mar 2008 03:45:10 GMT

A lawsuit filed by Florida's Attorney General, against a Jacksonville furniture company, will prohibit the business from operating in Florida.

The lawsuit, filed against Leather Depot, alleges the company is in violation of a prior business litigation settlement and is involved in deceptive business practices.

In April 2006 Leather Depot settled with the Attorney General over complaints from customers that it had failed to deliver furniture within four to six weeks, as promised. The latest lawsuit charges that an additional 20 complaints have been filed against Leather Depot charging that customers who have paid for furniture have not received their orders after months of waiting.

The suit seeks a permanent injunction to prohibit Leather Depot from conducting business dealings in the state of Florida, along with civil penalties of $10,000 per violation for consumers or $15,000 per violation in cases where the consumer is disabled or a senior citizen.

Originally posted at InjuryBoard by Chrissie Cole

Magna Bank Finishes Presenting Evidence in Legal Malpractice Lawsuit

Chrissie Cole — Fri, 07 Mar 2008 02:35:41 GMT

Magna Bank has finished highliting evidence in a legal malpractice lawsuit against Thompson Coburn after four weeks of testimony.

The trial, which was on a three-day hiatus so presiding Judge Daniel J. Stack could attend a judicial conference in Chicago, resumed March 6. And in an odd twist Magna's lead lawyer, Rex Carr, was called to testify as a witness for the defense.

Carr was asked several questions about his part in directing clients to Gibson - a businessman who scammed structured settlements from widows and children.

It began as far back as 1985 when Gibson took up the business of structured settlements under an agreement with a bank that Magna was to later acquire, according to Carr.

He also said he advised clients that received jury settlements to enter into structured settlements with Gibson's SBU and Magna Bank.

Everything was fine until 1993, when Gibson informed Magna Bank that pursuant to contract, he would terminate their agreement and take the money to a different company.

Originally posted at InjuryBoard by Chrissie Cole