Camp Lejeune Justice Act

Camp Lejeune Justice Act

by | Dec 16, 2022 | Article, Personal Injury

The word Le jeune translates from French as young or youthful. This seemingly benign name does not accurately reflect the decades of water contamination and coverup that occurred at the Marine Corp Base Camp Lejeune.

Between 1953 and 1987, it is estimated that nearly one million people drank, cooked, and bathed in contaminated water while living or working at Camp Lejeune in Jacksonville, North Carolina. This huge swath of people included military, civilian employees, and military family members. There is a lengthy history encompassing the realization of the contamination, the efforts of those affected to seek compensation through the courts and the VA system, and various attempted legislative efforts. Without delving into a detailed history, those injured by the contaminated water had an exceedingly difficult, if not impossible, task of trying to recover either through state court, federal court, or administrative agencies.

However, this past August, in a broad bipartisan fashion, the United States Congress passed, and President Biden signed, the Camp Lejeune Justice Act of 2022 that provides monetary relief to those injured by exposure to water at Camp Lejeune. The Act allows those individuals who were on base for 30 days or more between August 1, 1953 and December 31, 1987 to bring an action in the United States District Court for the Eastern District of North Carolina to obtain relief for harm caused by exposure to water at Camp Lejeune. This includes unborn babies that were in utero during the time of exposure.

Crucially, the legislation is written in such a way to make it easier for those harmed to recover than in a normal personal injury action. First, there is no requirement showing that the United States, or anyone else, was negligent. Second, the burden of proof, is:  “evidence showing that the relationship between exposure to the water at Camp Lejeune and the harm is–

(A)     sufficient to conclude that a causal relationship exists; or

(B)     sufficient to conclude that a causal relationship is at least as likely as not.”

Lastly, the United States is not allowed to assert any claim of immunity. In exchange though, there are no punitive damages allowed, and awards are offset by benefits received from Veteran Affairs, Medicare, or Medicaid in connection with health care or a disability related to water exposure at Camp Lejeune. Claims must be commenced within the latter of two years after the date of enactment of this Act (August 10, 2022), or 180 days after the claim is denied under 28 U.S. Code § 2675.

If you have any questions about the Act or believe you may have a claim, feel free to contact our experienced personal injury lawyers.

 

Do Pedestrians Have the Right-of-Way?

Do Pedestrians Have the Right-of-Way?

by | May 4, 2022 | Article, General, Personal Injury

I recently heard someone say as they confidently stepped off a curb into the street, “In Wisconsin, cars have to stop for us. Pedestrians always have the right-of-way.” Having grown up in Michigan, where our rules of the road have their own oddities (look up a “Michigan Left” for an example), I was not sure if this stranger was correct or not. As I am an attorney and looking into and analyzing laws is part of my job, I thought I would do some investigation into this matter. So, before you confidently step out into the street, please read below to learn more about the Wisconsin Statutes for pedestrians crossing the street.

The statutes are broken into three categories based on if there are traffic lights and if there is a crosswalk.

  1. When the crosswalk is in combination with traffic lights, the rules are transparent. Pedestrians have the right-of-way when a green light or walk signal indicate that it is appropriate for a pedestrian to cross, especially if the pedestrian is already in the crosswalk. Pedestrians also have the right of way when walking on a sidewalk where an alley or driveway crosses the sidewalk. Vehicles must wait for pedestrians to cross the alley or driveway before entering or exiting. While this does not specifically disprove the stranger I overheard, it is already not looking good for their legal proclamation.
  1. If there is a crosswalk, but no traffic light, the pedestrian still has the right-of-way, but with a significant caveat; pedestrians cannot suddenly leave the curb or sidewalk and cross the street if it would be difficult for the approaching vehicle to yield. What stands out to me about this caveat, is that the pedestrian must do a mental calculation as to how quickly a vehicle can brake in order to determine who has the right-of-way. This is no longer as transparent as before, because it is impossible to tell how well a particular vehicle’s brakes are working. At this point the stranger’s proclamation about pedestrian’s always having the right of way has another serious strike against it.
  1. Lastly, to further disprove the stranger’s theory, when crossing a road in a location other than a crosswalk, pedestrians MUST yield to all vehicles. Meaning unless traveling on a crosswalk or a sidewalk, vehicles have the right-of-way.

While my story ended with everyone making it across the street safely, that is not always the case. Many drivers are becoming more and more distracted and unfortunately the expectation of paying attention falls on the pedestrian. Remember to look both ways, obey all crossing signals and cross at a crosswalk if possible.

Hospital Liens: A Threat to Your Personal Injury Case

Hospital Liens: A Threat to Your Personal Injury Case

by | Apr 7, 2022 | Article, Personal Injury

If you have health insurance, Medicaid or Medicare and you go to a hospital in your insurer’s network for treatment, the hospital is required to submit the treatment bills to your health insurer, Medicaid or Medicare.  You may have to pay a deductible, co-pay or co-insurance percentage, but the hospital does not send you a bill for the entire charged amount.  This holds true, unless that hospital’s treatment is for personal injuries caused by another person’s negligence, such as a car crash.

It is often surprising and dismaying to injury victims – who have paid premiums to auto insurance for medical payments coverage and for health insurance – that shortly after discharge from the hospital they get notice of a lien for a huge dollar amount.  Welcome to the little-known Hospital Lien statute, Wis. Stat. § 779.80:

(1)  Every corporation, association or other organization operating as a charitable institution and maintaining a hospital in this state shall have a lien for services rendered, by way of treatment, care or maintenance, to any person who has sustained personal injuries as a result of the negligence, wrongful act or any tort of any other person.

(2) Such lien shall attach to any and all rights of action, suits, claims, demands and upon any judgment, award or determination, and upon the proceeds of any settlement which such injured person, or legal representatives might have against any such other person for damages on account of such injuries, for the amount of the reasonable and necessary charges of such hospital.

Hospital liens create significant complications for an injury victim’s case.  First, the lien is for 100% of the total charged amount of the treatment; there are no contracted discounts that you often see with health insurance, Medicaid and Medicare.  Second, since the hospital is not an insurance company, the lien is not subject to Wisconsin’s Made Whole or Common Fund doctrines, both of which serve to reduce the amount paid back to health insurers out of an injury settlement or judgment.  Third, it does not matter if you have health insurance, Medicaid, or Medicare that would pay for the treatment; the hospital can bypass them and still put a lien on your personal injury settlement or judgment.

Because hospital liens can potentially eat up a significant amount, if not all, of a personal injury settlement, it is crucial that injury victims get an attorney as soon as possible.  For a hospital lien to be effective, there are several statutory and notice requirements that the hospital must comply with within certain time limits; an attorney can evaluate whether all these requirements have been properly complied with.  Also, an attorney can communicate with the hospital about the possible limitations for settlement or judgment and reach agreement with the hospital for a dollar amount less than the lien amount, or convince them that, based on the limited funds available, the hospital is better off submitting the bills to health insurance, Medicaid or Medicare.

Hospital liens serve as another reminder of why it is so important to obtain a competent attorney after an injury.  If you or someone you know has been injured and are facing a hospital lien, feel free to contact one of our personal injury attorneys at Anderson O’Brien, LLP.

 

Can Amazon be Held Responsible for Defective Products Sold by Third Party Vendors?

Can Amazon be Held Responsible for Defective Products Sold by Third Party Vendors?

by | Jan 21, 2022 | Article, Personal Injury

Amazon, the e-commerce giant, sells over 350 million products online, which includes millions of products from third-party vendors. More than 95 million Americans now have Amazon Prime memberships. What happens if someone gets seriously injured by using a defective product manufactured by a third-party vendor which Amazon sells on its website? Can Amazon be held liable? The short answer is YES.

There is very little regulation when third-party vendors place their products on Amazon. Amazon has argued that it is just the intermediary between buyers and its third-party sellers on Amazon’s marketplace, and therefore it should not be held liable for these defective products. Until recently, Amazon has won several lawsuits escaping liability for selling defective products. However, the tide is now shifting against Amazon. In 2020 a landmark case was decided in California, where a woman purchased a replacement battery for her laptop computer from Amazon. This battery was manufactured by a third-party vendor. After several months, the battery exploded, and the woman suffered third degree burns. The California Court of Appeals ruled that Amazon could be held liable for selling this defective product. In finding that Amazon may be held liable, the Court held that regardless of what role Amazon had – whether it was a retailer, distributor, or mere facilitator – it was pivotal in bringing the product to the consumer.

A similar result was decided in a Wisconsin federal court case in 2019 in the Western District of Wisconsin. (State Farm v. Amazon.com, Inc.)  In this case, a Chinese manufacturer functioning as a third-party and having no presence in the United States, sold a bathtub faucet adapter on Amazon. A month after a homeowner purchased the item, the adapter failed due to a defect and caused flooding to their home. The Court found that the Chinese manufacturer could be held liable but that it was not subject to a lawsuit because it had no presence in the United States. The Court then went on to analyze the potential liability of Amazon for selling the defective product. The Court held that Amazon could be strictly liable because it found that Amazon took on more than a peripheral role in putting the product into the stream of commerce. The Court focused on key facts about the manufacturer’s relationship with Amazon, such that Amazon provided payment processing for the manufacturer and guaranteed the purchases. It also highlighted that the manufacturer participated in Amazon’s Fulfillment By Amazon (FBA) Program pursuant to which Amazon stored the manufacturer’s products and fulfilled its orders. Amazon also required the manufacturer to register its products for sale and reserved the right to refuse registration. Finally, Amazon required the manufacturer to indemnify Amazon for any injury or property damage caused by the manufacturer’s products.

As shopping online becomes more and more prevalent compared to shopping at brick and mortar stores, the courts appear to be finding remedies for online buyers who purchase defective and dangerous products from third-party vendors. In response to these lawsuits and court holdings, Amazon has developed a new policy in 2021 where it will pay customers up to $1,000 for defective products sold on its marketplace by third-party merchants that cause property damage or personal injury. Amazon claims that 80% of its defective product claims are worth less than $1,000. Amazon states that it may pay higher than this amount if the manufacturer is nonresponsive or rejects a valid claim. This damage amount is clearly insufficient for serious injuries and damages can require litigation to obtain the full value from Amazon. Amazon still maintains its position that it is not legally liable for selling defective products. It does appear that the company is taking a proactive approach on this issue in order to potentially avoid further legislation and regulations that may make it more difficult for Amazon to sell third-party products online.

If you experience a defective product that causes serious damages and injuries, it is important to speak to an attorney in a timely manner in order to preserve any potential claims that you may have. If you have questions, please do not hesitate to reach out to one of our personal injury attorneys.

Go Buy An Umbrella

Go Buy An Umbrella

by | Sep 30, 2021 | Article, General, Personal Injury

The above title is not encouraging you to buy something to protect you from the rain! It refers to purchasing an umbrella insurance policy to protect you and your family from liability claims, and to provide you with ample coverage for your losses due to injuries sustained in an auto accident. The typical cost for a $1,000,000 umbrella policy can be as little as $200 or $300 per year. This is a bargain for an additional $1,000,000 in protection.

As attorneys, not only do we represent clients, we also counsel them. One of my favorite topics to discuss with clients is having adequate insurance, including the purchase of “umbrella” coverage. This coverage refers to an extra layer of protection on top of your existing insurance coverage, of at least $1,000,000 or more, to protect you in case you have personal liability in an auto accident or under your homeowner’s policy. The umbrella policy you purchase should also include an endorsement to apply to your underinsured and uninsured motorist coverage on your automobile insurance policy. Some insurance companies may offer an umbrella policy you can purchase, and some may not. Some insurance companies may sell you an umbrella policy that applies to liability coverage only, for example, if you are at fault under your homeowner or auto policy. However, you need to consider being insured by a company that offers an umbrella policy that covers liability and has an endorsement to cover underinsured and uninsured motorist coverage in case you sustain serious injuries in an auto accident. You need to specifically ask for all three of these protections to have the best protection possible.

The reason for having an umbrella policy is to simply provide a significant increase in insurance coverage for a very low cost. In our practice, we see all types of auto accidents, and homeowner’s liability issues, and the first thing we ask our clients when they come to us is what type of insurance is available from the other party, and from our client. All too often we must tell our clients that the person who ran into them with their vehicle either had no insurance, or minimum insurance limits. We then look to our client’s insurance policy for potential additional coverage, and if they have low underinsured or low uninsured coverage there may be very little we can do to obtain compensation for our clients for their significant losses. Given the high cost of medical care, injured parties can easily sustain tens of thousands or hundreds of thousands of dollars in medical bills, in addition to significant wage loss and potential permanent disability preventing future earnings. If you have an umbrella policy of at least $1,000,000 that applies to liability and uninsured motorist coverage and underinsured motorist coverage, you will have a better chance of protecting yourself and obtaining full compensation for your injuries.

In summary, go buy an umbrella policy to protect yourself and your family. In order to give yourself full protection, you need to tell your insurance agent that you need the umbrella policy to cover (1) liability for home and auto, and (2) an endorsement so that the umbrella applies to your underinsured and uninsured automobile coverage. If you have any questions about an umbrella policy, please feel free to contact me and I will be happy to discuss it further with you.

 

Returning to Work After a Work Comp Injury

Returning to Work After a Work Comp Injury

by | Sep 20, 2021 | Article, Employment, Personal Injury

Absent the lucky few, most Wisconsin workers are considered “at-will” employees. This means absent exceptions for unlawful discrimination (e.g. race, gender, age, religion, etc.), a worker can be fired for any reason, or no reason at all.  However, worker’s compensation injuries are another exception to this “at-will” presumption that makes a work injury a protected category.

Under Wisconsin’s workers’ compensation law, Wis. Stat. § 102.35(3), an employer (at time of injury) who terminates, or unreasonably refuses to rehire, an employee after a work injury is subject to a penalty of up to one year’s lost wages. The purpose behind this law is to dissuade discrimination against employees who have been injured on the job and, assuming there is work available within the worker’s restrictions, make sure the injured worker gets back to work with his former employer. This is yet another outgrowth of the bargain struck between workers and employers under Wisconsin’s worker’s compensation regime:  workers do not get to sue their employers or co-workers for injuries, but they are entitled to a system of no-fault benefits and job protections.

When returning to work, there is a distinction between returning while still healing with temporary physical restrictions versus returning to work with permanent physical restrictions. An employee must provide notice to their employer of any temporary (as well as permanent) restrictions. If the employer can provide work within the temporary restrictions at the same rate of pay, no temporary disability is owed; if the employer can only provide work at lower wages or less hours, the worker is owed temporary partial disability; and, if the employer cannot provide any work, the employee is owed temporary total disability. If an employer terminates a worker while they are still healing, the worker has an unreasonable refusal to rehire claim.

When an injured worker reaches an end of healing or “healing plateau,” the treating physician may assign permanent physical restrictions along with any permanent disability percentage. If the worker is provided permanent work restrictions, they must provide the same to their employer. Under Wis. Stat. § 102.35(3), the employer must offer “suitable employment…within the employee’s physical and mental limitations.” If the worker’s permanent restrictions allow return to their same job at the time of injury, they should be offered it. However, the employer must offer any suitable position available even if different than the position the worker had at the time of the injury. Only when there is truly no work available within the worker’s restrictions can the employer refuse to rehire the injured worker. The employer, not the employee, bears the burden of proving the lack of suitable employment.

The above is not meant to suggest that there is an absolute unassailable right to return to work for the same employer following a work injury. When determining whether there is “suitable employment,” the statute allows for consideration of “the continuance in business of the employer.” This gives rise to the employer’s argument that the nature of business or economic situation dictated its refusal to rehire the injured worker, not the work injury.

Unsurprisingly, these are highly fact-dependent issues and claims. Moreover, unreasonable refusal to rehire penalties are paid by the employer, not the work comp insurance company, which means they are hotly contested and litigated. The above is only a brief snapshot and is not meant to cover all the variations that accompany return-to-work decisions after a work injury; if you have questions, do not hesitate to reach out to one of our worker’s compensation or employment law attorneys.