March 2009 Archives

March 31, 2009

Kentucky and Indiana Restaurant Playgrounds Create Hidden Dangers

For many parents, the bright and colorful playground at many fast food restaurants all over Kentucky and Indiana can be as alluring if not more alluring than the fast food itself.  However, as an article from MSN points out, there are many potential dangers in these fast food playgrounds that result in serious injury to a child. 

playground.jpgThe Center for Disease Control and Prevention (CDC) estimates that emergency rooms treat more than 200,000 children every year for playground-related injuries. These playgrounds found at fast food restaurants like McDonalds and Burger King are referred to as "soft-contained playgrounds."  While the restaurants are the ones that will profit from the playgrounds as they attract customers, restaurants argue that since they hire independent contractors to build the play structures, they are not responsible for their customers' safety.    

The American Society for Testing and Materials (ASTM) sets the national standard for soft-contained playgrounds.  However, even if a restaurant complies with these standards, each chain is responsible for self-policing its playground for safety compliance.  The Consumer Product Safety Commission (CPSC) sets guidelines and regulations but does not have the staff to enforce its rules.  They have created a Soft-Contained Play Equipment Safety Checklist which parents can use to help determine if playgrounds are safe for their children's use. 

In some cases action has been taken by CPSC against fast food restaurants for safety code violations.  The agency fined McDonald's $4 million in 1999 regarding its soft playgrounds. 

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March 13, 2009

Kentucky and Indiana Insurance "Bad Faith" Tactics to Be Aware of and Avoid

Through our Kentucky and Indiana law practice we deal with client questions on a daily basis concerning denial of insurance claims.  Insurance companies are in the business of making money and have been very successful by acting in bad faith.  However despite record profits, insurance companies still employ unethical tactics and tricks in order to continue to increase their profit at the expense of their insureds.  The American Association for Justice has issued their latest research report titled

Tricks of the Trade:  How Insurance Companies Delay, Deny, Confuse and Refuse.  Included are several stories of real people who were victims of illness or accident and then became victims again by their insurance companies.  It is important to be aware of the common tactics and tricks your insurance company may use before dealing with them.  Below are two of the common tactics listed in the report.

AAJ Tricks of the Trade.jpgDenying Claims

One tactic of large insurance companies is to deny valid claims in an effort to boost profits.  Many of the largest insurance companies have created employee incentive plans to reward employees who deny claims successfully and replace employees who do not.  Just a few examples listed in the report include insurance giant Farmers' incentive program "Quest for Gold" which offered its employees incentives for meeting low payment goals including $25 gift certificates and pizza parties.  Allstate also used incentives such as portable fridges to reward employees for denying valid claims.  Allstate also used what they referred to as a "boxing gloves" approach when dealing with policyholders who would not accept lowball offers on their claims.   

Delaying Claims

Another way for insurance companies to avoid payment is to simply delay the claim for as long as possible.  Insurance companies know that by delaying claims, many claimants will eventually give up or even die, therefore possibly avoiding any payment at all.  For most policyholders asserting a claim, is a very vulnerable time in their life either due to an illness or accident.  Insurance companies realize that claimants do not always have the time or energy to continue resubmitting claims and required documents and to continue calling the insurance company to see if their claim has been approved.  The report lists tactics admitted by long-term care insurer Conseco and its subsidiaries that included:  mailing the wrong forms to claimants and then denying their claims due to having the incorrect paperwork, declaring claims abandoned by policyholders if certain paperwork was not submitted within 21 days, and requiring documents that were not even required under the insurance policies before payment would be issued.   

Prepare yourself for these tricks by following some basic guidelines:

Read your policy -- you need to be aware of who is covered under your policy, what is covered and how to appeal if the insurance company denies your claim.

Know what you are filling out and what you are signing -- be very careful in filling out forms, answer the questions correctly and understand what you are signing and agreeing to.  Do not simply trust the insurance agent to explain the documents to you, read it. 
Do not Cash a Premium Refund Check -- insurance companies sometimes send these checks if they decide to rescind your insurance.  This check would cover the premiums you paid, however if you cash this check, it may be interpreted as your acceptance of this decision, leaving you uncovered.
Keep records of all conversations and get everything you can in writing -- this will not only help you keep track of what has been said while dealing with an insurance company but will also be beneficial should your claim not get resolved prior to litigation. 

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March 5, 2009

Victory for Victims of Defective Drugs: Drug Company Wyeth Held Accountable

In a landmark decision, the United States Supreme court rejected the arguments of drugmaker Wyeth and held that pharmaceutical companies can be held liable for failure to provide adequate warnings for their products even when their warnings have been approved by federal regulators.  In this case, the plaintiff, Diana Levine, was being treated for a migraine and was given the anti-nausea drug Phenergan manufactured by Wyeth.  She claimed she was improperly injected by an IV-push with this medication, and as a result had to have part of her arm amputated.  A jury in Vermont awarded the Plaintiff $7 million.

Wyeth appealed the verdict arguing that by having their warning label approved by the U.S. Food and Drug Administration (FDA), the U.S. agency pre-empted state laws and therefore shielded pharmaceutical companies from any damages in state liability claims.  Wyeth argued it would be impossible for drugmakers like themselves to comply with both federal and state labeling requirements.  The Court disagreed in their 6-to-3 decision with Justice Steven's noting in the majority's opinion that Wyeth could comply with both state and federal labeling requirements by adding a stronger labeling requirement.  

For more information please refer to the United States Supreme Court Opinion: Wyeth v. Levine. 

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