Honolulu Personal Injury Lawyer - contract

Mandatory Binding Arbitration - Forced Arbitration - Is Bad For Consumers And Congress Should Act

Wayne Parsons — Fri, 12 Jun 2009 14:19:14 GMT

This week on National Public Radio (NPR) “All Things Considered” highlights new legislation banning pre-dispute mandatory binding arbitration clauses. A recent article posted on Injury Board is a good resource on the subject of forced arbitration and covers the NPR story: NPR Examines "An Arbitration Culture".

NPR spoke with Jamie Leigh Jones, who had a harrowing experience as a private contractor in Iraq when she was raped and beaten by her coworkers. When criminal charges could not be filed, she sought to hold her employer, KBR / Halliburton, accountable for their misconduct. But a forced arbitration clause buried in her employment agreement meant she could not have a jury trial. Instead, she would have to go to arbitration, on the corporation's own terms, for a secret, one-sided tribunal. Jamie’s attorney, American Association of Justice (AAJ) member Todd Kelly, and her appellate counsel is John Vail of the Center for Constitutional Litigation.

In April AAJ and other consumer, employment, and civil rights groups urged Congress to pass the Arbitration Fairness Act and the Fairness in Nursing Home Arbitration Act. These two bills would put an end to binding mandatory arbitration clauses (forced arbitration) in certain consumer, employment, franchise, and nursing home care contracts that unfairly target certain vulnerable people.

On Arbitration Fairness Day, over 30 victims of forced arbitration from targeted states came to Washington D.C. to lobby for the passage of the bills. The day was marked with a noon press conference at which the sponsors of the Arbitration Fairness Act, Senator Russ Feingold and Representative Hank Johnson, spoke about the need for the legislation. Also speaking at the press conference were Jamie and other individuals who have suffered terrible consequences as the result of forced arbitration.

I have written articles on this issue before on my Blog and you will find lots of background information and resources in those articles.

Forced Arbitration: Tort Reform By Contract

Fact Sheet For Arbitration Fairness Act

Public Justice, the great consumer advocate has a 15 year record of challenging these abusive corporate tactics in Court and I am sure that Arthur Bryant an Paul Bland, consumer giants and great attorneys at Public Justice will celebrate the passage of these Bills. If you are interested in a true American hero, Paul Bland is a role model for that category:

Top Dog for the Underdog For his all-consuming dedication, some recognition from his countrymen
David Deal
When he was in law school, Paul Bland knew only that he wanted to pursue public service. He didn’t foresee a career as an award-winning champion of consumer rights.

If the world of consumer rights law is a battle against modern-day Goliaths—banks, HMOs, mortgage brokers, credit card companies and others with powerful resources—then F. Paul Bland Jr. ’86 is more than ready to play David. And, he says, the stones in his slingshot include some lessons learned at Harvard Law School from a giant of another kind: the late Vern Countryman, who taught at HLS from 1963 until 1987.

So when the National Consumer Law Center recently honored Bland’s contributions to consumer rights advocacy with the Vern Countryman Consumer Law Award, Bland felt a renewed sense of connection to the professor he encountered at HLS more than 20 years ago.

As a staff attorney at Public Justice, a public interest law firm with headquarters in Washington, D.C.—and especially as director of the firm’s Mandatory Arbitration Abuse Prevention Project—Bland has fought some of the more egregious injustices committed against consumers by major companies. Though mandatory arbitration is designed to prevent a glut of consumer claims from tying up the courts, he explains, some companies add arbitration clauses to their consumer contracts—including clauses compelling consumers to give up the right to pursue class-action litigation—that make it nearly impossible for customers to bring cases. The provisions take many forms, he adds, but their goal is the same: to make the arbitration process discouragingly opaque and intimidating.

“People think of alternative dispute resolution as having so much promise—giving fairer, faster ways to deal with claims,” Bland says. “But what’s happening in a lot of cases is that the more powerful party takes advantage. A subprime lender is taking advantage of a poor person, or a car dealer of a consumer, or a nursing home of the person going in.”

Bland says his views of the problems faced by the powerless were influenced by Countryman during law school, even though he never took a class with the professor. In his third year, as president of the Journal on Legislation, he solicited Countryman to write an article on an important piece of bankruptcy legislation. At first, Bland found bankruptcy law “unbelievably boring,” but he says he began to understand its importance and its relevance to consumer protection in conversations with Countryman, who repeatedly tried to rouse his interest in it.

“As I got into the world and I started representing low-income people, a lot of the ideas that he was trying to explain have become a lot clearer to me,” Bland says. “What I’ve come to see is that [bankruptcy law] really stands between a lot of people and the equivalent of debtors’ prison. It’s an incredibly important protection.”

Bland’s caseload has taken him to state and federal courts across the country, including the U.S. Supreme Court in 2005. But even when he travels, he makes time to meet with other consumer advocates (“a community of lawyers who really stick together,” he says) to share some of the finer points of fighting uphill battles.

“The asymmetry of resources is huge,” he says, “but it can be fun to be the underdog.”

Voices count. People matter. Your opinion matters. Even the great attorney Paul Bland and the team at Public Justice cannot do it without you. The corporate schemes to undermine the rights of American consumers by tricks like forced arbitration have been stymied by individual attorneys like Paul Bland and Arthur Bryant, but they need more tolls like The Arbitration Fairness Act to make sure that justice is possible for all Americans. So speak up for your rights and take America back from the corporate CEO's and CFO's and the U.S. Chamber of Commerce, their lobbying tool! Never forget that Together We Are Strong".

Originally posted at InjuryBoard by Wayne Parsons

AIG In Another Scandal Over Denying Health Care Claims For American Workers Injured In Afghanistan and Iraq

Wayne Parsons — Sat, 25 Apr 2009 15:09:33 GMT

Rep. Elijah E. Cummings (D-Md.) has recently said there were “serious deficiencies in the health coverage of civilian employees who have been injured while working overseas.” His outrage about insurance companies denying and delaying payments for needed medical care for overseas American civilian workers, is well known to personal injury attorneys in Hawaii and across the country. Despite slick television advertising by insurance companies portraying themselves as caring friends to injured policy holders, the legal profession sees the daily denials of claims and the withholding of payments to doctors. The motto of the casualty insurance industry has long been:

We accept your premiums and deny your claims!

Now the true profile of deceit of the insurance industry is being exposed through a Congressional investigation and some excellent journalism by T. Christian Miller in stories published by the Los Angeles Times and ABC News as well as ProPublica - Journalism in the Public Interest. I also commend you to read the article by Chrissie Cole at The Injury Board: "Congressman Calls For Inquiry Into AIG’s Handling of Contractor Claims".

http://www.youtube.com/watch?v=kshlHjqmonY

As you read this story, know that it is not just about overseas workers. AIG and the other casualty insurance companies do this on a daily basis to Americans here at home. In Honolulu the AIG office is considered one of the most outrageous when it comes to denying valid claims and delaying payments to doctors for necessary treatment. And unfortunately, the Insurance Commissioner, under a Republican Governor, has been little more than a spokesman for AIG and other insurers and has refused to give Hawaii policyholders any protection from this unregulated and abusive group of highly profitable corporations. The allegiance of powerful democrats like Calvin Say in the Senate, to the insurance industry, Hawaii citizens have no protection from the systematic denial of payments of claims, and the gross underpayment of doctors and hospitals who are trying to get injured people well so they can go back to work. The recent punitive damage award in a court case on Kauai against HEMIC for insurance abuse in denial and delay, hopefully will spur the legislature and the courts to focus on the abuses in the insurance system.

This article is about Iraq and Afghanistan, not Honolulu so let me get back to the breaking news about AIG. The Pro Publica report states that, "A senior member of the House Committee on Oversight and Government Reform wants his panel to investigate whether insurance giant American International Group Inc. and other providers have unnecessarily denied and delayed costly medical treatment for civilian contractors injured in Iraq and Afghanistan."

Rep. Elijah E. Cummings (D-Md.) has asked for the Department of Labor to be investigated for its oversight of the federally financed insurance system for civilians working overseas. Cummings made his case for the inquiries in a letter Tuesday to Rep. Dennis J. Kucinich (D-Ohio), chairman of the Subcommittee on Domestic Policy.

Insurance companies routinely challenge serious injury claims of civilian workers returning from the war zones. These patriotic Americans are routinely denied treatment for basic medical needs such as artificial limbs, surgery and psychological counseling.

"The men and women who sacrifice their lives to protect our nation on the battlefield should be able to return to their families without having to wage another battle here at home to receive the healthcare they are more than entitled to receive," Cummings said. "I was absolutely disgusted to read about the atrocities that individuals are being forced to endure as they attempt to get treatment for the injuries they received while serving our country."

What does AIG have to say? Hawaii attorneys who deal with AIG on a weekly basis hear this all of the time. If you believe the AIG response I have a bridge to sell you the runs between Maui and the Big Island:

In a statement Tuesday, AIG said it paid the "vast majority" of claims without dispute. Labor Department officials said they had done their best to police the system with limited resources.

The Defense Base Act, is the law and it makes federal contractors purchase workers' compensation insurance for civilian employees working overseas.

Once an obscure corner of the federal bureaucracy, claims have soared from a few hundred a year to more than 11,000 in 2007. The increase is a direct result of the privatization of the wars in Iraq and Afghanistan, where civilian contractors outnumber troops in the battle zones. More than 1,400 contractors have died in Iraq and 31,000 have reported injuries.

AIG has 90% of all claims filed by injured civilians or by the families of dead contractors. Congressional investigators have previously questioned the high cost of the company's premiums, which are paid by taxpayers as part of the price of a federal contract. Let's think about this. AIG is the biggest piece of the recent financial bailout of Wall Street. They definitely know how to gouge taxpayers. Finally a Congressman is turning the lights on about this company and about the government agencies that are supposed to regulate the industry.

Well that is another scandal in itself. Only major league baseball and the insurance industry are exempt from anti-trust laws! So the insurance industry isn't regulated! These companies are hands off to most politicians as evidenced by the fact that in Hawaii even the democrats - traditionally on the side of labor and consumers, are cozy with the insurance industry at the expense of the voters.

How much money is involved in the overseas worker scandal?

Last year, the government reform committee determined that AIG had collected $1.3 billion in premiums on the insurance between 2002 and 2007, while it had paid out about $800 million -- leaving the company with a nearly 40% profit. The Pentagon has recently begun an inquiry into whether such premiums can be lowered.

The recent reports indicate that "[a]nalysis of Labor Department data found that insurers had denied about 44% of all serious injury claims -- those involving more than four days of lost work. The companies also turned down about 60% of contractors who claimed to suffer psychological damage such as post-traumatic stress disorder. The Times sued the government for access to Labor Department records."

"There are clearly serious deficiencies in the health coverage of civilian employees who have been injured while working overseas to keep us safe here at home -- costing not only the men and women who are being refused coverage for the treatment they need, but also for the American taxpayers who are footing the bill for their coverage," Cummings said.

For real reporting on this and other stories of financial misconduct I highly recommend ProPublica and T. Christian Miller (t.christian.miller@propublica.org). Miller, is a former New York Times staff writer, and is currently a senior reporter for ProPublica, the nonprofit journalism organization based in New York.

Originally posted at InjuryBoard by Wayne Parsons

Tips When Going on a Cruise

Wayne Parsons — Sun, 26 Oct 2008 15:45:18 GMT

If you go on a Cruise be aware of the following issues to watch out for:

1. Most cruise ship tickets contain contractual statute of limitations (usually one year)

2. Most tickets have a 6 month written notice requirement

3. Most also have venue provisions requiring the case be brought in a particular jurisdiction and even in particular courts (these days federal court) -- usually in Miami, Florida or Seattle, Washington or Los Angeles, California (depends on cruise line).

4. Most case law holds that ship doctors are independent contractors and the cruise line is not responsible for their negligence.

Originally posted at InjuryBoard by Wayne Parsons

"They Told Me That I Waived My Rights When I signed the Contract" .... Can They Do That?

Wayne Parsons — Wed, 22 Oct 2008 14:41:43 GMT

Did you realize that almost every ticket you buy and every contract you sign has some form of "waiver" of rights in it? Waiver of Rights is a new tool that corporations use to avoid the law. The law is what the legislatures pass as bills and what the constitution says. But corporations try to circumvent the law by having their customers sign fine print documents that say that they agree to completely different standards. Are these kind of agreements legal?

The bad news is that the courts across the country have ruled in favor of the corporations and against consumers in many situations. Appointment of conservative judges over the past 25 years has been a trend and these judges favor corporations over people in the cases before them, a trend that has dramatically changed this area of the law over my career.

Let's examine some particular situations.

Cruise lines almost always have a clause in the fine print that says any claim you bring must be filed in Miami, Florida. That's right, Miami. Why? There are two reasons. First, most of the cruise lines - and their cadre of attorneys - are based in Miami. Second, they know that most passengers won't be able to go to Miami to pursue a claim. These clauses are called "forum selection clauses" and most courts allow them to be enforced. So be aware that you can easily find a Florida attorney to bring a claim on your behalf even if you live in Des Moines of Kalispell and, for many injury claims, the attorney will work on a contingency fee. Ask an attorney in your town to refer you to an attorney in Miami and they can find someone for you or use The Injury Board search feature to locate and contact a Florida attorney who does cruise ship injuries.

Be careful with cruise lines to note if they also require that you bring a claim within a certain period of time. In Hawaii an injured person has 2 years to file a claim. But cruise line contracts or tickets often state that you must bring a claim within 6 months or 1 year. Can they do that? Can they change the law? The answer is "maybe" as courts look at all facts before deciding if the time rquired will be enforced. Since your rights are at stake, act quickly, read your ticket or contract and get some legal advice by an attorney who has handled cruise line cases.

Dinner sunset sails and other local day boat trips in vacation areas also have waivers in the papers you sign before taking the short trip. These waivers also are seen in most crusie line contracts. They state that you "assume the risk" of injury from any cause. They usally go on to state that you relieve them of all liability for everything. Can they do that?

The more dangerous the activity the more often courts enforce these waivers. Scuba diving and paragliding are more hazardous activities than a sunset dinner sail. But a faulty scuba dive regulator or a dinner sail that negligently ventures into known rough seas may get the claim past the waivers in the ticket or contract. Most of my clients in these cases tell me that signed no waivers and got no ticket on these type of excursions. When I get the file from the company it almost always includes a document waiving rights signed by the client.

Even attorneys who regularly handle these cases, have a hard time predicting at the outset what a court will do when the company tries to knock out a claim with a waiver. The facts of each case are important in determining whether the waiver is effective against the passenger. In Hawaii our courts have abolished the "assumption of risk" doctrine except in "ultrahazardous" activities. But that doesn't mean that a waiver won't be enforced.

The law has a policy of not enforcing contracts that would essentially result in waiving the right to bring a claim against someone who negligently - or intentionally - injures another person. But as the courts have become much more conservative in the past 25 years we are seeing the corporations winning many of these legal battles.

Do not make any assumptions about your situation until an attorney who handles these cases has evaluated the facts of your injury. Most of the time the claim is allowed despite the waivers of liability.

Originally posted at InjuryBoard by Wayne Parsons