The Patient Protection and Affordable Care Act (ACA), a/k/a Obamacare, was drafted to make health care and health insurance more affordable and more available to more Americans as well as to relieve some of the burden on Medicaid. However, the ACA also may have an impact on personal injury litigation. In particular, this legislation may serve to reduce awards for the cost of future medical care, while preventing plaintiffs from obtaining a double recovery as they do often today, consisting of an award of the predicted costs of future care and the benefits of ongoing health insurance that is often available for that care.
Continue Reading Obamacare in the Courtroom: In the Matter of Double Recovery

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The year was 1979 when Bob Dylan’s song “Gotta Serve Somebody” was released on his album Slow Train Coming: “It may be the devil or it may be the Lord, but you’re gonna have to serve somebody.”

While Dylan’s theme of determining who you serve was unrelated to insurance brokers, the New York Court of Appeals recently clarified and distinguished its own 1979 opinion in Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, which held that notice of a claim provided to an insurance broker could be sufficient to notify an insurer of a claim. The insured in Mighty Midgets, a non-profit youth football organization led by a young volunteer president, was told by its broker not to report the injury to the league’s liability insurer because the family of an injured minor was only looking for medical expense payments. When a lawsuit was served, the insurer denied coverage. The Court held under the circumstances that it was not “practicable” to notify the insurer until the lawsuit was served and overturned the denial of coverage for late notice.

Continue Reading Who Does an Insurance Broker Serve? Somebody!

Insurance Broker  with CoupleI am not a statistician. Frankly, I start to sweat when I look at spreadsheets, tables and charts. I don’t, however, need a table, graph or chart to know that there is a perception that insurance brokers and agents have questionable ethics and are generally thought to be untrustworthy. This is borne out by the Gallup poll, which historically places “insurance salespeople” near the bottom of the rankings for honesty and ethics of various jobholders.

Continue Reading Bing! Ned Ryerson and the Myth of Unethical Insurance Salespeople

I often speak to groups of professionals on how to avoid errors and omissions claims. When I started making such presentations more than 30 years ago, I would hold up a piece of notebook paper and explain that it was a professional’s “best friend” when it comes to avoiding future problems. A memo of a conversation with a client detailing and confirming the services that can (or can’t) be delivered and the realistic outcomes that can (or can’t) result from those services may provide the best defense when a client complains. This is only true to a point. Sometimes, written communications provide a client with ammunition for a claim of negligence.

Continue Reading OH GOOD – I WROTE IT DOWN! OH NO – I WROTE IT DOWN!?!

tablet imageAs part of my blog training, I was asked to review my social media presence in general and in particular my LinkedIn account. My profile, admittedly, had not been reviewed in some time, so I updated my bio and skills section.

This made me think about “puffing,” which I learned about in my Contracts class in law school. For those unfamiliar with the term, it is something we experience daily in sales transactions and advertising. Puffing is the exaggeration of the positives of a service or product or anything else someone is looking to sell. Any advertisement that includes superlatives – such as “greatest,” or “best” – or statements that are clearly not intended as factual representations are not generally actionable if you buy the “product” and find it to be lacking. Consumers dealing with a salesperson should expect some level of “puffing.”

Continue Reading Social Media: Putting Your Best Foot Forward or in Your Mouth