A class action lawsuit has been filed in a Philadelphia suburb against a school district that provided students with laptops installed with webcams. The problem? The 2,300 laptops' webcams were remotely accessible by school officials.
According to Law.com, the lawsuit discusses the "school district's official announcement of the launch of a program to provide every student with a laptop, which billed it as 'an authentic mobile 21st century learning environment' designed to ensure that 'all students have 24/7 access to school based resources.' "
The AP reports that the webcams would only be activated by the schools' technology and security departments when a laptop was reported lost or stolen.
The suit was filed by student Blake Robbins and his parents after Robbins was confronted by the assistant principal at his high school. The assistant principal allegedly told Robbins that he had been caught doing something inappropriate at home. The lawsuit doesn't indicate whether Robbins' laptop had been reported lost or stolen.
The suit alleges violations of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the Stored Communications Act, and Pennsylvania's wiretap statute. It also alleges violations of the Fourth Amendment, and federal civil rights laws.
FEDERAL INSURANCE COMPANY v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, 124 Nev. Adv. Op. No. 31 (May 29, 2008)
In an opinion issued in May, the Nevada Supreme Court addressed the issue of whether, under Nevada law, an additional insured endorsement provides coverage for an injury caused by the sole independent negligence of the additional named insured.
Clark Lift West, Inc. was issued a liability insurance policy by American Hardware Mutual Insurance Company. Clark Lift provided maintenance and repair services at Southern Wine and Spirits of America, Inc., so Southern Wine was listed as an additional insured on Clark Lift's insurance policy with American Hardware. The policy covered Southern Wine, as an additional insured, for liability only arising out of Clark Lift's ongoing operations performed for Southern Wine.
Charles Pierce, a Clark Lift employee, was injured while working at Southern Wine's facility. Pierce initiated a personal injury claim against Southern Wine seeking damages for Southern Wine's negligence in causing his injuries. American Hardware refused to defend the lawsuit, asserting that its additional insured policy did not extend to Southern Wine's negligence.
Using traditional interpretation for ambiguous insurance contracts, in favor of the insured and favoring coverage, the Court held that "when the term "arising out of the operations" of a named insured is included in an additional insured provision, that term must be read to include coverage for acts arising from the additional insured's own negligence."
The Court concluded that "unless the contrary intent is demonstrated by specific language excluding or limiting coverage for injuries caused by the additional insured's independent negligent acts, there is coverage."
See the full opinion here.
The Nevada Supreme Court issued a decision last week in Vredenburg v. Sedgwick CMS allowing surviving family members to recover workers' compensation death benefits under certain circumstances when an injured employee commits suicide.
NRS 616C.230(1) provides for workers' compensation benefits for accidental employee deaths but precludes surviving family members from recovering when a the employee's death was caused by his "willful intention to injure himself."
The Supreme Court ruled that a suicide is not "willful" for the purpose of denying workers' compensation death benefits if a sufficient causal chain links an employee's work related injury to the employee's suicide. The precedent setting standard requires a surviving family member to show the following:
(1) the employee suffered an industrial injury,
(2) the industrial injury caused some psychological condition severe enough to override the employee's rational judgment, and
(3) the psychological condition caused the employee to commit suicide.
Vredenburg v. Sedgwick CMS, 124 Nev. Adv. Op. No. 53 (July 24, 2008)
The full opinion can be found here
Reno is still pretty dangerous and challenging for bicyclists. This is largely due to the need for a better route of paths, better marked paths and a need for a better continuation of the paths network. Does this mean that Reno is an unsafe place for bicyclists to ride overall? Not necessarily, but there are certain precautions that every bicyclist should take, aside from simply wearing helmets while riding.
According to Reno Personal Injury Blog Staff Writer, George Goodwin, being aware and giving signs to let the drivers know that you are there is a first big step. Being alert, careful and polite also helps the bicyclist avoid potential problems. Some drivers are really good and some are great about riding in the middle of their driving lane, but that is not the case with all Reno-area drivers. You may also find that crossing at an intersection is safer than trying to cross while on the road because it gives drivers a greater area of clearance to drive by. It's better in any case to be safe than sorry.
As far as safety precautions you should take while on your bike, having two lights, a front and a rear, is a good start. Anything you can do to make yourself more visible, especially at night and in the cold winter months, is a positive step toward not getting hit.
In addition, keeping your bike tuned up and in decent condition will serve you well and help you to avoid potential traffic accidents. Keeping the air in your tires full and taking your bike to a bicycle shop to get the chains oiled and keep the tires trued (in a straight line) will help you to keep your balance and allow you to shift your gears smoothly whenever you meet a hill. While you're there you can have the mechanics check out any other problems that they might find such as frayed wires, bent spokes and misaligned handlebars. Any one of these might be a minor headache, but could potentially erupt into a major problem if left unchecked.
Drivers who take the whole lane are just as irresponsible as bicyclists who ride in wavy patterns, seemingly drunk. Generally, it's difficult to always place the blame on one specific group, but in a specific sense it's usually the fault of one or the other of the two involved. To avoid accidents bicyclists need to make drivers more aware that they are there and be more attentive as well. Drivers should also be more attentive and if they can't move over they should slow down. In addition, drivers should recognize that bicyclists are vehicles in their own right and instead of attempting to force bicyclists to move out of their (the drivers') way, they should recognize that bicyclists riding responsibly in their own lane are the equivalent to a moving vehicle themselves such as the car the drivers are currently driving.
According to the Nevada Department of Motor Vehicles Nevada bicyclists should "obey the law, wear a helmet, wear brightly colored clothing and keep bikes in good repair." Additionally, bicycles ridden at night "must have: a white lamp in the front visible from at least 500 feet away, a red tail reflector visible in a vehicle's low beams from 300 feet away and reflective material on the sides of the bike visible in low beams from at least 600 feet away or a lamp visible from both sides from 500 feet away."
These basic precautions on the part of the bicyclist will help to ensure their safety by making them more visible to drivers. However, not all bicyclists follow these precautions. In order to help fight this negative trend, the Nevada Department of Public Safety has begun a program called the "Nevada Bicycle and Pedestrian Safety Education Program" whose mission is "is to prevent injuries to children and adults from bicycle and pedestrian crashes by training them with the knowledge and skills needed to be competent and safe in traffic." Their goal of administering traffic and bicycle safety programs through workshops and education programs will hopefully have a positive impact throughout not only Reno and Washoe County, but all of Nevada as well.
The NDPS's stated safety goals include increasing proper bicycle helmet use, increasing obedience to traffic laws by pedestrians, bicyclists or motorists, increasing walking or bicycle use as a substitute commute to school or work increasing physical activity and reducing negative environmental effects thereby promoting a healthier community, and increasing and packaging educational opportunities in such a way as to encourage [their] widespread application. How do they reach these goals? The Office of Traffic Safety (OTS) provides ongoing education and funding opportunities, as well as special events targeting safety. Their targets run the gamut of elementary school students on up to adults, in an attempt to educate all levels of bicyclists to greater levels of safety.
What does all of this mean for a bicyclist? Those bicyclists who are careful, aware and visible are doing the right thing. By keeping their bicycles tuned up and making themselves visible not only during the daytime, but also at night, they are presenting themselves to drivers and making a statement of "I am here. Please be aware of me and take the proper safety precautions." Hopefully with enough education, the proper use of safety equipment and the use of safety precautions Washoe County will become less of a "challenge" for bicyclists and become more of a bicycling haven.
Las Vegas personal injury lawyer Noel Gage was charged in what is described as a "wide-ranging and expansive" investigation into the way that certain personal injury cases were allegedly handled.
The following quotes come directly from the Las Vegas Review Journal on May 23, 2007:
Las Vegas personal injury attorney Noel Gage surrendered to the federal government Tuesday after he was indicted on charges related to a wide-ranging scheme that involved inflated medical costs and jacked-up settlements.
Gage is the second person indicted in connection with what authorities allege was a multimillion-dollar ruse. Gage faces 18 felony charges including conspiracy, mail fraud, money laundering, aiding and abetting and obstruction of justice.
In March, a federal grand jury in Las Vegas indicted Indiana resident Howard Awand. Awand "purported to be" a medical consultant, federal prosecutors said.
Authorities alleged that Awand recruited a network of doctors who agreed to refer patients to him and that he would refer the patients to personal injury attorneys, including Gage. Gage would provide Awand access to clients' confidential medical and legal information, authorities said.
Awand and Gage would steer the clients to doctors who would provide their services on a medical lien basis, all the while concealing that Awand had agreed to buy the lien at a steep discount, authorities allege. The clients would be required to pay the full value of the liens, and Awand then would pay kickbacks from the profits to those involved in the scheme, according to the indictment.
The health providers received kickbacks for providing false testimony for the personal injury claims, and the lawyers promised not to sue the participating doctors for medical malpractice, authorities alleged.
Gage was a recipient of the kickbacks, according to the indictment, but it does not specify who paid Gage or how much he received.
Acting U.S. Attorney Steve Myhre indicated Tuesday afternoon that more indictments are to come in the case, but he would not say how many more people he expects will be charged.
"This is a continuing investigation; it's wide-ranging and expansive," Myhre said after Gage's initial appearance in court. "It will continue into the foreseeable future."
The indictment handed up against Gage shed light on what authorities alleged was a corrupt relationship that Awand established with Gage and other doctors and lawyers. Gage paid Awand and the doctors for the referrals, according to the indictment.
Once Gage represented the clients, he provided access to their confidential medical records to Awand, "falsely and deceitfully representing to the client that Awand was a medical consultant, without revealing that, in truth and in fact, Awand was part of a broad scheme to defraud," the indictment said.
Awand and Gage persuaded the clients to seek medical treatment from health providers who agreed to treat the patients on a medical lien payment basis, meaning patients could pay their bills after their injury claims were settled. "The medical lien allowed healthcare providers to charge clients for services and procedures at grossly inflated prices," the indictment said.
The health care providers, according to court documents, had a secret agreement to sell the medical liens to Awand at a "steep discount."
In their efforts to obtain settlements or judgments, Awand and Gage filed lawsuits against individuals involved in the claim or insurance carriers, according to the indictment. Health care providers involved in the scheme offered testimony that included false or misleading statements, according to the indictment.
After claims were settled, the inflated medical lien costs were deducted from their settlements, and the participants in the scheme then got kickbacks out of the windfall, authorities alleged.
The indictment outlined a case in which a patient became "profoundly and permanently disabled" after treatment from health care providers not involved in the scheme. A physician working with Awand learned of the case and had the patient referred to Awand.
In September 2001, Awand referred the case to Gage. At the encouragement of Awand and Gage, the client signed medical liens for treatment received through June 2003.
"Gage and Awand knowingly misled Client 1 to believe that Client 1 was personally liable for the full face value of the lien when they both well knew that Awand would purchase the lien at a discount," the indictment said.
Gage and Awand filed lawsuits against "individuals and insurance agencies" on behalf of the client, according to the indictment.
During a two-year period ending in December 2003, Gage disbursed more than $7 million in proceeds from the settlement of the client's lawsuits. Gage paid Awand $1 million from the settlement, explaining to his client that the payment was for contingency fees, the indictment said.
On top of that, Awand got $347,754 from the proceeds, and Gage told his client that payment was to settle liens with Valley Hospital Medical Center, the indictment said. Awand had bought those liens for the discounted price of $130,000, the indictment said.
Gage paid Awand an additional $12,000, explaining to the client the money was for another medical lien, the indictment said. But that lien, issued by a doctor who was a participant in the scheme, was actually for $5,000, according to the indictment.
Awand and Gage also withdrew another $430,000 from the settlement and explained that payment was needed to pay off additional contingency fees, the indictment said. The money instead went to the physicians who participated in the elaborate plan, the indictment said.
In the indictment, federal prosecutors outline a second client's case that involved a similar pattern of behavior by Awand and Gage.
The obstruction of justice charge against Gage stems from his grand jury testimony. When the grand jury requested to see certain documents from Gage's office, the attorney failed to produce checks written to Awand or his medical consulting companies, the indictment said.
A second witness tampering charge was added to Awand's case on Tuesday. He is expected to appear in federal court later this week.
After Gage's court appearance Tuesday, he declined to comment on the case. He indicated that he is confident he will be cleared of the charges.
"Are you going to give me this kind of news coverage when I'm adjudicated?" he asked reporters outside the courthouse.
Gage was admitted to the Nevada State Bar in 1998. He earned his law degree from the University of Michigan in 1962, according to the Web site lawyers.com. The site said Gage, who is a partner in the firm Gage & Gage, specializes in products liability, personal injury, employment discrimination, medical malpractice and general civil practice.
This is one of a number of articles that deal with basic legal concepts when you're in an accident in Nevada.
Accidents, like the challenges of life, aren't always straightforward, and defense attorneys are adept at making the most of complexity.
So what happens when you're in an accident and you may have some fault, too?
Nevada law is generally clear on this issue. N.R.S. 41.141 provides, in part, as follows:
41.141. When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants
1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.
2. In those cases, the judge shall instruct the jury that:
(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to recover, it shall return:
(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and
(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.
Basically, this means that if your case ends up at an arbitration or a trial, you will be barred from recovery only if you are determined to be more than 50% at fault.
If you are determined to be 50% or less at fault, then whatever award you receive will be reduced by your percentage of fault.
The full text of this statute and others can be found at http://www.leg.state.nv.us/law1.cfm
Are businesses in Nevada liable when their employees assault others while on the job? The Nevada Supreme Court has never really thought so and still doesn't.
The Court recently affirmed its longstanding views in this regard in set of holdings on this issue in Wood v. Safeway, decided on October 20, 2005.
There, Jane Doe, a mentally handicapped woman, was working for Safeway Stores when she was sexually assaulted by Emilio Ronquillo-Nino, who was employed by a company that provided janitorial services at the Safeway where Doe worked. Doe, through her guardian ad litem, filed a complaint against Safeway and Ronquillo-Nino's employer, Action Cleaning, alleging five causes of action as a result of the sexual assault.
The lower court granted summary judgment in favor of Safeway, determining that it was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (NIIA). The district court also granted summary judgment in favor of Action Cleaning pursuant to NRS 41.745 because it was not liable for intentional torts committed by its employee and because Ronquillo-Nino’s intervening criminal acts were a superseding cause that relieved Action Cleaning of responsibility.
Nevada law has long barred employees from suing employers for injuries that arise in the course of employment. In Wood, the Court recognized that Doe's employment with Safeway brought her into contact with the assailant. While the nature of her work required her to interact with employees and the public, her specific job duties included cleaning various areas of the store and collecting shopping carts from the parking lot. Two of the sexual assaults occurred while she was collecting carts from a lot that was behind or next to the store, and the other in a cleaning supply room that was presumably in an area off limits to the public. As a result, the Court concluded that Doe's employment contributed to and increased the risk of assault beyond that of the general public. Her only contact with Ronquillo-Nino was through her employment. Because he worked as a janitor there, he was aware of the store layout and which areas of the store provided vulnerable locations. The sexual assault, reasoned the Court, was not imported into the workplace or otherwise the result of motivations peculiar to the assailant and the victim that are unrelated to the employment. Therefore, Doe's injury falls within the coverage of the NIIA, and her claims are barred by NRS 616A.020.
The Court also examined the lower court's grant of summary judgment in favor of Action Cleaning based on the dual grounds that (a) under NRS 41.745 an employer is not liable for harm caused by the intentional torts of an employee, and (b) Ronquillo-Nino's intervening criminal act was a superseding cause that relieved Action Cleaning of liability. Doe argued against both conclusions on the basis that Ronquillo-Nino's acts were foreseeable given that Action Cleaning's workforce is highly transient, untrained, largely unsupervised, and "comprised almost entirely of" illegal aliens.
The Court disagreed. First, said the Court, Ronquillo-Nino had no prior criminal history in the United States or Mexico. Action Cleaning requires applicants to show proof of identification, checks employment references, and completes the proper Immigration and Naturalization forms for every employee. Action Cleaning's district manager further stated that he had not received complaints of sexual harassment regarding Ronquillo-Nino or any other employee in the past ten years. Under the circumstances of this case, it was therefore not reasonably foreseeable that Ronquillo-Nino would sexually assault a Safeway employee. Moreover, as noted, the assault resulted from Ronquillo-Nino's independent acts and was not within the course and scope of his employment. Consequently, under NRS 41.745, the Court found that Action Cleaning was not liable for the intentional conduct of its employee, Ronquillo-Nino and the Court similarly concluded that Ronquillo-Nino's actions were an intervening superseding act that relieves Action Cleaning of liability in this case.
Nevada is a state that protects employers and The Nevada Supreme Court's conclusion in the Wood case continues Nevada's tradition of protecting employers from the consequences of intentional harm done by their employees.
This will be the first in a series of thoughts about the role that doctors play in injury cases.
Doctors can be treating doctors, or expert witnesses, or either but not both, or both. This is a subject of some complexity that I will delve into more in the future; for now, though, let's talk about treating doctors.
I was recently in a deposition in a case in which my partially disabled client was on a motorized scooter when she was hit in a crosswalk by a young man driving a truck. She required extensive medical treatment, saw numerous orthopedic doctors and surgeons, and had to undergo knee replacement.
One of those surgeons, a joint replacement specialist, was the subject of the deposition. Under questioning by the
defense, he stated that he could not, to a reasonable degree of medical certainty (the phrase that many lawyers
use to describe the standard for burden of proof) relate my client's need for knee replacement surgery to the fact that she had been hit by a truck in a crosswalk, had been thrown a substantial distance, and had extensive pain complaints relating to her knee after the accident. In fact, and worse, he testified, to a reasonable degree of medical certainty, that her knee replacement was not due to the accident.
My client's medical chart reflected some prior knee complaints, but not nearly the same type and number of complaints as she had after the accident. After the defense was finished, I asked the doctor whether subjective complaints of pain were a potential factor in determining whether knee replacement was necessary. He stated that this was a major factor in this type of determination. I then asked him to tell me the frequency and character of my client's knee complaints prior to the accident as opposed to the frequency and character of my client's knee complaints after the accident. He then stated that he had not had time to review the entire chart, despite the fact that I had offered to pay him to do so.
At the end of the deposition we were left with a witness who had "neutralized" the value of his testimony for either side by virtue of his lack of preparation. My client, who truly had many more serious pain complaints after the accident than she had before it, lost a potentially valuable witness.
The moral of this story, to the extent that there is one, is that treating doctors are often dangerous witnesses for their patients. I tell my clients that treating doctors may "trump" hired experts at trial since juries tend to believe a doctor who examined and cared for a patient as opposed to a doctor who is paid for the sole purpose of testimony.
Many treating doctors, however, are alarmingly unaware of their own patient's medical history and find deposition testimony tiresome and annoying, even though they are invariably paid $500.00 to $1000.00 an hour by one attorney or another.
The role of treating doctors in the outcome of injury cases cannot be overstressed, and I will discuss other aspects of this important subject in the future.
If you've been injured, and there's a settlement offer from the other side on the table, you may be wondering whether to push forward through litigation or to settle. Every case is different and requires specific evaluation. In general, though, you should assess a variety of factors, including the following:
Case Size
How big is the case? Litigation can be very expensive and you, the injured party, ultimately foot the bill for costs. You should understand what your costs are at the time of the settlement offer and what your costs may be if litigation is pursued. Along the same lines, attorney's fees often go up as a case nears trial. What will your attorney's fees be if you continue? Determine costs and fees now and project costs and fees later. This will tell
you what you will need to gain by pursuing litigation. Injury cases are about economics; your goal should be maximizing your net recovery.
More Now Or More Later?
What likelihood is there that you will gain more if you wait until later to settle or go to trial? This is a question that no one can answer with certainty. This is the nature of our system and the uncertainty of the outcome of your case is based upon the fact that there are so many variables that go into any contested hearing.
Other Factors
Here are some other factors to consider in assessing whether to litigate or to settle:
-Stress. Will litigating your case through contested hearing create a great deal of stress for you? How much is it worth to forego the stress, preserve your health and resolve your case with certainty?
-Comparative negligence. Is there a possibility that you contributed in some manner to the situation which led to your injuries? In Nevada, you are barred from recovery if your own negligence exceeds the adverse party's negligence. Otherwise, your award may be reduced by that percentage of negligence attributable to you.
-Perception of reality. In our society, appearances and presentation count. The way a judge or jury perceives the litigants matters and could make a difference.
-Time. It takes time to get an arbitration or a trial done and any party can then appeal. The Nevada Supreme Court can take years to hear a case. How long are you willing to wait for your money?
-Principle. If you are determined to pursue your injury case on principle alone, you may be pursuing your case for the wrong reason. Civil injury cases can help to affect societal change, but more often than not injury victims are better served by focusing on the economics of a case and maximizing net recovery.
For more on comparative negligence, see my article titled What If You're At Fault Too? http://reno.injuryboard.com/automobile-accidents/what-if-youre-at-fault-too.aspx?googleid=200412
How much is your case worth?
The answer to this question has a ring of Zen to it. How much is your case worth? Your case is worth what you can get: that's how much it's worth.
So what can you get?
The answer depends on a variety of factors.
A good place to start out is a general understanding of the legal concept of damages. Simply put, there are different types of damages that correspond to a particular claim. For instance, punitive damages (or damages to punish rather than to compensate) are generally available only when a claim that entails intentional or malicious conduct is proved. Therefore, punitive damages are not available in negligence cases since negligence cases do not involve intentional conduct. Punitive damages are, however, available in fraud cases since fraud is a claim that necessitates a showing of intent.
So the value of a case depends on the type of damages available upon the proof of your claims and the actual amount of damages (for instance, the amount of your past and future medical bills). The difficulty of proving certain claims and the chance that the defense may be able to prevail with certain defenses, such as comparative negligence, must be factored into any analysis of how much a case is worth. An assessment of damages, though, is a useful first step toward an understanding "what you can get."
A useful second step is understanding and accepting that no person alive on the face of this planet can tell you exactly what you might get if your case proceeds to a contested hearing. In the end, you roll the dice. This is the nature of our system, and the uncertainty of the outcome of your case is based upon the fact that there are so many variables that go into any contested hearing. Is the case in arbitration? If so, who is the arbitrator? Is he biased toward the victims of injuries or is he someone who suspects that most victims are frauds out to cheat the system? Is the case before a judge? Who's the judge? What are his or her leanings when it comes to compensating injury victims? Is the case before a jury? Who's on the jury? Who are the attorneys? How will the parties, the attorneys and the jury interact?
It's impossible to know for certain the outcome of any given case. That's why it's important to work with counsel who understands the general value of a case and can assess, to the extent possible, the complex set of variables that go into a case.
There will be more about the subject of case value in future columns. Thanks for reading!
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