San Francisco Injury Lawyer Blog

How Bad is Bad Faith? San Francisco Injury Attorney Comments.

June 25, 2010 | Gregory J. Brod

Anyone who has insurance is vulnerable to insurance fraud. It does not matter what type of policy you hold, whether you have an individual plan or employer based insurance –you are not safe from insurer bad-faith practices. What is more, even people who have high paying jobs with great insurance plans don’t know they are at risk. Speaking of employer based insurance, most people don’t know about a little thing called ERISA preemption.

The Employee Retirement Income Security Act of 1974 is a federal law that was intended to protect the retirement benefits of employees against mergers, acquisitions, and other corporate activities that might otherwise have endangered such funds. Originally ERISA had nothing to with overruling state insurance regulations. It specifically approved of the use of state laws to regulate insurance practices. That was until the insurance companies went to the US Supreme Court and argued that they could lower insurance premiums on health insurance policies purchased in the workplace and, thereby, make insurance more affordable to people if the Supreme Court would agree to preempt state laws. And in the 1987 ruling written by Justice Sandra day O’Conner, in the case of Pilot Life v. Dedeaux, the court decided that a state law that does not directly regulate the business of insurance is preempted by ERISA for insured plans, essentially eliminating the legal rights –established over many years-that protect policy holders from fraudulent and bad-faith insurance practices.

Now, without federal laws making it illegal for an insurance company to defraud somebody or ensuring accountability for bad-faith practices, insured people in almost every state are having their rights taken away, because of ERISA preemption. Here at the Brod Law Firm, we know that the likely hood of ERISA reform is slim, considering that the insurance companies are the strongest lobby in Congress (FYI: ERISA is also our roadblock to health care reform). But you can help lobby Congress by calling and voicing your concerns to your local Congressional representative and your state’s U.S. Senators. If you feel that you are the victim of bad-faith practices and have questions about the state law and how it will (or will not) protect you, please contact us.

Unabated and Undeterred by California Legislation: Elder Abuse Continues in California

June 24, 2010 | Gregory J. Brod

According to the Times-Herald, five people face criminal charges in the fiery deaths of three Casa de Vallejo retirement home residents nearly two years ago. The five consist of owners, operators and managers of the building and have been charged with two counts of manslaughter, two counts of elder abuse causing death and one count of elder abuse. Those killed in the blaze are John Argente, 74: Robert Bennett 68: and Harold Fortune, 61. As it turns out, they all died due to the lack of an audible fire alarm system. An investigation revealed that the fire was accidentally sparked by Bennett when he fell asleep in his room with a lit cigar, while on a medical oxygen tank. Also according to the investigation, the fire system’s audible alarm had been disconnected two months before the fire, during rehabilitation work on the building. Solano County District Attorney David Paulson’s office states that there was “a complete failure of notification of the elderly and infirm residents that the building was on fire.” As a former resident of the building said: “I thought they (meaning the building owners, operators and managers) got away with murder.”

Remember that elder abuse refers to any intentional, reckless, or negligent act by a care giver or other that person that causes harm or serious risk of harm to a vulnerable adult and deprives the vulnerable adult of the necessities of life, which is similar to nursing home abuse. Nursing home abuse refers to elder abuse or neglect committed in an institutional setting such as a skilled nursing facility, rest home, convalescent home, or residential facility or long term care home. People who reside in nursing homes do so because they have special care needs due to their age or medical condition, making them especially vulnerable to abuse and neglect. Sometimes, because of Alzheimer’s or dementia, they may not be able to recognize or speak-out when they are neglected or abused. Also, they may have physical limitations that prevent them from caring for themselves and are utterly dependent on nursing home staff to provide for their every need. And as mentioned in previous blogs, nursing homes sometimes underpay and overwork their staff in order to maximize profits, which may lead to a higher probability of injury or neglect of an elderly adult. In this case, it is the building owners, operators and managers who have cut corners and put the residents at risk.

Here at the Brod Law Firm, we believe one of the most important laws in California is the Elder Abuse and Dependent Adult Civil Protection ACT. California Legislature has declared, under the Act, the intent to enable interested persons to engage attorneys to take up the case of abused elderly persons and dependent adults, as well as provide for attorneys fees and damages for pain and suffering. The Act targets institutional care givers and health care providers and aims to deter those in charge from trying to cut corners and make it expensive to risk neglecting their residents and patients. As declared in the Act, living elders, defined as adults 65 years of age and over, and dependent adults, defined as adults with disabilities, have rights to monetary compensation for their injuries. And if the elder or dependent adult is deceased, then their estate, heirs, next of kin and other family members may have rights to monetary compensation due to injuries suffered by the elder or dependent adult prior to death and for punitive damages for abuse or neglect committed with oppression, fraud or malice. Despite legislative efforts to protect elders, abuse and neglect continue. If you believe a member of your family is or was the victim of elder abuse, or if you have questions regarding the laws that pertain to nursing home abuse, please contact us.

San Francisco Bike Attorney: Bike Accidents with Cars or Trucks

June 22, 2010 | Gregory J. Brod

There are multiple California Vehicle Code sections that impose responsibilities on drivers of automobiles with respect to bicyclists. For example, California Vehicle Code § 22107 states: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” In addition, California Vehicle Code § 21801(a) states: “The driver of a vehicle intending to turn to the left or to complete a U-turn upon a highway, or to turn left into public or private property, or an alley, shall yield the right-of-way to all vehicles approaching from the opposite direction (emphasis added) which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety.” Finally, though persons riding bicycles are not defined as “pedestrians” under the Vehicle Code, Vehicle Code § 21950(a) requires a driver of a vehicle to yield the right-of-way to a pedestrian crossing the roadway within any marked or unmarked crosswalk.

While the laws designed to protect cyclists may govern the fault and responsibility of a driver of a car or truck after an accident, they cannot, however, protect you as a cyclist. That’s why it is important to be as aware of the cars and trucks around you as possible, and to ride defensively. Assume that drivers do not see you, and always wear a helmet. In the event you’re involved in an accident with a car or truck, or even doored, ensure the local police are called so they can document what happened, take witness statements, and get the insurance information of the driver. The most important thing to do after an accident with a car or truck is to monitor your body and seek proper medical treatment for anything that’s bothering you. You should consult an attorney prior to speaking with the insurance company of the driver involved in your accident, though your health, not your legal case or claim for damages, is the most important thing.

At the Brod Law Firm, we have been advocating on behalf of injured cyclists for over ten years, and have helped clients who have suffered minor injuries to catastrophic injuries. If you or a loved one has been injured by the fault of someone else, please contact us for a free consultation.

San Francisco Injury Attorney Comments on Insurance Bad Faith

June 17, 2010 | Gregory J. Brod

What is “Bad Faith”? Bad Faith refers to a claim an insured person has against an insurance company that won’t honor a policy or pay a legitimate claim. At this point in time, it should be no surprise that some insurance companies delay payments in order to keep your money. Some legal consultants are saying that, because of the current recession, insurers are using delay tactics in order to make their bottom lines look better than they actually are to please their stockholders. And, as we saw with the government-sponsored financial bailouts of corporations such as Citicorp and AIG, we know the bottom line is sometimes an illusion that eventually implodes. On top of that, the insurance industry is not federally regulated, and some bad faith cases have found in favor of the insurer, stating that it is not required to disregard the interests of its shareholders and other policyholders when evaluating claim and that insurers need not put insured ‘s interests ahead of its own. For example,the judgment in Austero v. National Cas. Co of Detroit, Mich.1978 states: “An insurer is not required to pay every claim presented to it. Besides the duty (of good faith, which is the opposite of bad faith) to deal fairly with the insured, the insurer also has a duty to its other policyholders and to the stock holders…not to dissipate its reserves through the payment of meritless claims.”

Contrary to that view, other cases have had the opposite judgment upheld, suggesting the insurer must place its insured’s interests above its own or its stockholders’ interests in maximizing profits, as in McCormick v. Sentinel Life Ins. Co. 1984 that found: “The duty (of good faith) does require an insurer to place the interests of its insured above its own or its stockholders’… We accordingly reject (the view that)…there is an equivalent duty…owed to an insurer’s stockholders which may be balanced against the duty owed to its insured.” Most people believe the latter when they buy insurance and feel overwhelmed and powerless when insurers don’t want to pay. And even though each state has their own insurance departments that enforce provisions of their state’s insurance regulations, it can still be difficult to recover money for a cheated policyholder. Because bad faith cases are complex and because most policyholders feel powerless going against insurance companies, most victims of bad faith find it useful to hire an experienced insurance attorney to fight for them.

Here at the Brod Law Firm we wonder what the future may hold for policyholders, considering the current political and economic climate and the instability of the stock market. Now, more than ever, large insurance companies, like any other large company, will fixate on the bottom line of making profits and providing returns to their stockholders. The more claims a company pays, the weaker its bottom line will appear. To avoid all that, insurance companies may withhold or refuse payment or use delay tactics to hang onto your claim payment as long as possible. Despite all of this, we have the experience and skills needed to fight and win any case involving insurance bad faith.

San Francisco Bike Attorney comments on road rage incident

June 4, 2010 | Gregory J. Brod

The streets of San Francisco are filled with cars, motorcycles, pedestrians, baby strollers, skateboarders, and cyclists. The concept of “Sharing the Road” is important from a social standpoint, but more importantly it is a safety issue that everyone should keep in mind, particularly in a densely-populated area. Bicyclist should ride defensively, as best as possible, and pedestrians need to ensure that oncoming traffic is slowing down before crossing the street. This advice may sound simple, but it’s better to try to avoid getting injured, even if it would be someone else’s fault. What happened a few days ago on the streets in San Francisco, however, was shockingly, no accident. A driver of an SUV apparently went on a hit and run rampage, hitting four victims, who were riding bicycles. Mayor Gavin Newsom issued a statement, reiterating his position that San Francisco is one of the nation’s bike-friendly cities. While this may be true, and the City certainly has no control over the intentional act of a lunatic, San Francisco still has a long way to go to ensure its cyclists have ample bike lanes in which to travel, and to continue to get the message out to all those who make their way across the streets of San Francisco every day: Share the Road.

At the Brod Law Firm, we have been advocating on behalf of injured cyclists for over ten years, and have helped clients who have suffered minor injuries to catastrophic injuries. If you or a loved one has been injured by the fault of someone else, please contact us for a free consultation.

Uncontained Road Rage Leads to Four Injured Cyclists in San Francisco

June 4, 2010 | Gregory J. Brod

Yesterday a man struck four cyclists with his car in the Potrero Hill area, one after the other, within six minutes, and police are treating it as aggravated assault. The first crash happened at 9:43p.m. in the 2700 block of Harrison Street, the second at the 2800 block of Harrison Street, the third at the intersection of 23rd and Pennsylvania streets, and the fourth at 17th and Missouri streets at 9:49 p.m. According to missionlocal.org, three of the victims had non-life threatening injuries and were taken to SF General Hospital. The fourth victim was treated at the scene. After the vehicle struck the fourth victim, the driver crashed the vehicle into a pole and fled on foot.

If you know the area of Potrero hill, you know that it is like no man’s land out there at night. During the day it is a vibrant place to walk, but it is isolated by the freeway and large sections of industrial space. Notwithstanding the busy restaurants and clubs, it feels deserted at night– as most of the streets are not well lit, and the only people you really see are in cars. I have never recommended anyone walk or ride their bike out there alone at night. With that said, some people have no other choice but to ride or walk in that area, considering all the service cuts to public transportation. And in no way, am I suggesting that these cyclists could have avoided this situation. Clearly, the man who hit them was on a rampage and is responsible.

Here at the Brod Law Firm, we wonder about people who commit aggravated assault. What could possibly have gotten into this man? Is he simply insane or severely maladjusted? Did he have a bad childhood or does he have a chemical imbalance? Did he wake up feeling powerless and decide to act out his frustration by running over four cyclists with his car. And, since the theory behind road rage is that automobiles are obedient and give the driver a false sense of power, do we just classify this story as a road rage incident and leave it at that?

Earth v. BP: San Francisco Injury Attorney Comments on BP Oil Spill

May 24, 2010 | Gregory J. Brod

Lawsuits are mounting on behalf of the environment and communities around the gulf coast. One Lawsuit has been filed by the Sierra Club and Gulf Restoration Network against the U. S. Interior Department and Minerals Management Service (MMS) over permits. According to the suit, the agency gave BP and other oil companies illegal waivers. The suit states, “Had MMS not waived the regulatory requirements, had BP done a proper Blowout Scenario and Worst Case Oil Spill Response analysis, theses critical planning flaws may have been avoided.” And in other related news, it turns out that BP cut corners on safety in order to save money. According to the Wall Street Journal, as of 2003, U.S. regulators decided that remote-controlled safeguards, known as acoustical valves, needed more study; and a report commissioned by the MMS said “acoustic systems are not recommended because they tend to very costly.”

Needless to say, the spill is destroying wetlands and delicate ecosystems around the gulf and poisoning life in the ocean. And the spill poses long term health concerns for the safety of communities around the gulf. The toxins can persist for years in the food chain, as oil contains traces of heavy metal such as mercury, arsenic and lead, all of which raise the risk of cancer and neurological problems. Several restaurants from Louisiana and Florida have decided to take proactive steps toward recovery by filing a class action lawsuit against BP, whom they see as the responsible party, according to the Oil Pollution Act. The class action, dated, May 18, was filed on behalf of several plaintiffs who are restaurant owners and others in the seafood service industry who have or will suffer lost profits as a result of the spill. The action states that due to the dangerous environmental contamination as a result of the oil leak, “fishing, shrimping, oystering and other commercial activities have been suspended and will likely continue to be legally and/or effectively reduced,” thereby causing a loss of revenue and earning capacity for the industry.

Here at the Brod Law Firm, we believe unchecked development over the past century has put us in this devastating situation. Up until now, coastal erosion, land loss and vulnerability to hurricanes and flooding have been the end result of wreckless pillaging of the earth and sea for oil. But now, as the oil continues to gush–at a possible rate of 1million gallons a day–we wonder how long before the spill and/or byproducts of the it will show up other places around the globe, or perhaps, here in San Francisco, and ultimately place all of us in peril.

It’s National Bike Month, San Francisco!

May 14, 2010 | Gregory J. Brod

Hey, readers! The earth needs you! And what a great way to help the environment by riding your bike to work, to school, to the gym, the grocery store, or where ever your heart desires. Maneuvering your way thru traffic might be a nightmare at first, but it is good lesson in getting along with others. If you don’t have a bike, try borrowing one from a friend for one day and see how much faster it is getting around the congested city streets during rush hour. And if you are reluctant to bike to work because you are worried about arriving to work sweaty, don’t worry, the solution is found in a package of handy wipes. The first time you try biking to work you probably will notice a change in your mood upon arriving to work-you will probably arrive happy–as bicycling alleviates stress and releases endorphins (imagine that!). And if you look around the office at your coworkers on the day you bike to work, you will also notice that you are more relaxed, refreshed and productive than they are. The pleasure and satisfaction attained from riding to work might convince you to make cycling your preferred mode of transportation.

For many reasons, the bicycle is the vehicle of the future. It definitely has a competitive edge over driving a car or riding the bus: it’s efficient, it’s economical, and it’s healthy and, most importantly, it’s plain old fun. Also the bicycle is the simplest and most pleasure inducing way to get healthier while saving our environment and reconnecting with the community. The more we bicycle, the smaller our carbon footprint. Autos are the single largest source of us air pollution. Statistics show short trips are up to three times more polluting per mile than long trips. Moreover, choosing to bike to work or to the store will slash your fuel expenses. It also saves you on parking fees, parking tickets, auto insurance, auto maintenance costs, and transit fares. The physical side effects are also a big positive, as it enhances your overall fitness, minimizes your risk of coronary heart disease and helps build stamina. The best thing is it helps you look great –just a few miles of cycling per day assure trimmer and toned muscle. What better time than National bike month to start biking and start a new way of life. Here at the Brod Law Firm, we think everyone should give cycling a try, especially here in San Francisco. With all cutbacks to public transportation and the budget problems MUNI facing, public transportation riders might have to start rethinking how they get around. The San Francisco Bicycle Coalition is the best place to go to learn about navigating your way through in the city. They offer classes and other tools that will help you minimize your risk of being involving in an injury accident.

Tips on Choosing a Quality Nursing Home in San Francisco

May 10, 2010 | Gregory J. Brod

Deciding to place a family member in a nursing home is painful and difficult. Some families, however, have no other choice when the medical and physical demands make other options impossible. Choosing the right and appropriate home is not a task to be taken lightly. Families should make an appointment to tour each home in which they are interested. During each tour you should ask to see more than the public areas and visit several residents’ rooms. And, if possible, families should try to walk through the facility on their own, which will allow them this to experience it without input from staff or the managing director, who may have a one-sided or biased interpretation. Also you should ask if you can join the residents for lunch or dinner.

When families talk to the residents, they should ask them what they like most – and what they feel could be improved. The most important things to look into when talking with residents-things that will help you be the judge if a nursing home is appropriate for your loved one– are those that have to do with quality of life. What does “quality of life” in a nursing home mean? It means that each resident is entititled to things such as, receive care in a manner and in an environment that promotes dignity and respect; organize with other residents to discuss issues of common interest and concern; receive services that recognizes any residents’ special needs, such as food choices or accessability requirements; a program of activities that meets the residents interests, physical, mental and social abilities; and the opportunity to participate in social, religious, and community activities of their choice. All of the above lifestyle choices seem common sense, and, as a consquence, they are often overlooked by families.

Once you find a place that is suitable, it is also important to keep a diary of the events regarding the care of a family member. Sometimes there is lack of oversight in nursing homes regarding the training of nurses, as some nursing homes fail to perform background checks on temp nurses or have on staff nurses whose licenses were suspended–so families should be sure to find out that their loved one is receiving care from liscened professionals. Also, learning the name of the director of nursing, the medical director, and the times they are in the building is very important. Here at the Brod Law Firm, we believe there is no substitute for visting and seeing for yourself if a particular nursing home is acceptable. For we have heard many horror stories from families about relatives that were neglected or abused due to lack of oversight.

Nursing Home Neglect in San Francisco and Beyond

April 30, 2010 | Gregory J. Brod

Federal regulations require that each resident of a nursing home receive the necessary care and services to attain or maintain physical and mental health. Residents who are unable to independently carry out daily activities, such as grooming and eating, are entitled to receive the highest level of services needed to maintain good nutrition and personal hygiene. Also, it is required that nursing home facilities provide each resident with a nourishing, well-balanced diet that meets the special dietary needs of each resident. Therefore, nursing homes must employ qualified dietitians and sufficient support staff and provide assistive devices and special eating equipment for residents who need them. Failure of a nursing home facility to follow dietary regulations can result in serious injuries of residents, due to dehydration and malnutrition-both of which are preventable.

Since patients are often dependent on staff members to provide them with water and food, they are especially vulnerable to dehydration and malnutrition. Malnutrition can lead to confusion, muscles weakness, bacterial and viral infections and even death. To ensure the overall health of residents is maintained, a nursing home must also maintain medically trained staff. Federal nursing home regulations state that a facility must have 24 hour licensed nursing services and a registered professional nurse for at least 8 consecutive hours every day (under some circumstances there can be waivers of these requirements as long as it does not endanger the health or safety of the residents). When nursing homes fail to maintain adequate levels of staffing, residents are sometimes neglected or abused by overworked, stressed-out staff members.

Here at the Brod Law Firm, we are sometimes asked why nursing home abuse occurs. The following are typical reasons. Low wages and large numbers of residents assigned to each staff member lead to high turnover rates, which leads to mismanaged care. It is often the case that knowledge of the specific needs of residents is lost with high turnover rates, as there is little time for each new trainee to get to know their residents. As result, new trainees feel overworked and unable to meet the needs of residents, then stay a short time and quit. And the cycle goes on and on. Sadly, this happens because most of the nursing home industry is for-profit. As such, these corporations, in order to increase their net profits, try to keep their staffing costs low and hire fewer staff members than is required. So, when staff members place food in front of residents who can’t feed themselves and then don’t bother to assist them, it is essentially the same as starving them.