Sebastian County jury tells State Farm safety rules matter

Don and Taylor spent the week of December 1-4, 2015 in Fort Smith trying a motor vehicle collision case. It was a classic example of an insurance company hiding behind their insured. The wreck happened after our client dropped her son off at a Boys and Girls Club in Fort Smith.

She was headed home with her daughter when another vehicle hit them in the middle of their van on the passenger’s side. An elderly State Farm insured did not look to his left before pulling out of the parking lot of a barber shop. The elderly State Farm insured admitted to violating the safety rule to pay attention.

The collision threw our client toward the point of impact. Her torso got caught in the seat belt. This caused an aggravation of a pre-existing back condition that had given her no pain in over a decade.

Our client reported back pain to the police officer who responded to the scene. Our client's pain intensified overnight and she went to the ER the next day. The ER found degenerative changes in her back; told her she would probably be a little stiff; prescribed anti-inflammatories and muscle relaxers; and told her she would probably be fine in a few weeks. Our client took the medication. A few weeks passed. Her pain returned and worsened. She also starting having mild incontinence.

Seven months before the wreck she had seen a chiropractic physician for mild neck pain. So she went back to him three months after the wreck. Her chiropractic physician sent her to the ER on her very first visit. The same degenerative changes were found at the ER as three months beforehand. The most noticeable of these changes were at the same level our client had an old work injury in 1995. Her incontinence problems worsened. She began seeing her family doctor. This resulted in a referral chain to a neurosurgeon; a pain management specialist; a urologist; and a gastroenterologist. Our client also had neck injuries from the wreck. These injuries resulted in a 23% whole person impairment rating.

Before the wreck our client was a hard-working mother of seven adopted children. She took pride in being a big woman. She also coached her children's sports teams; drove and maintained a school bus; enjoyed being a substitute teacher; took occasional family vacations to Ohio and other locations; enjoyed attending her children's sporting events; and kept an orderly home while cooking and cleaning everyday for her family. After the wreck, she began having "accidents" in public. These "accidents" were caused by her incontinence problems. They not only embarrassed her, but also her children and anyone else with her at the time they happened. She learned to avoid "accidents" by not eating. As a result, she lost a significant amount of weight. This negatively affected her self-esteem. A nerve stretch injury was diagnosed in her low back as a result of the wreck. This kept her from being able to sit or stand for long periods of time. The nerve stretch injury eliminated her ability to watch her children's sporting events the way she could before the wreck.

It forced her to quit coaching. It stopped her from adopting a sibling of her other children. It forced others to pick up the physical tasks required of a mother and wife. Our client's dream was to become a full-time teacher of at-risk junior high children. She went back to school after the wreck to become certified. However, her injuries from the wreck forced her to give up this dream. Her only way of being gainfully employed after the wreck was to have an understanding supervisor. She worked several jobs where her supervisor allowed her to take unscheduled breaks as a result of "accidents."

Our client incurred a little under $40,000 in medical expenses when the trial began. She sustained injuries in the wreck that will be with her for as long as she lives. The most State Farm offered was $11,500 despite their elderly insured having only $25,000 in coverage. This is the minimum amount required by state law. State Farm's low ball offer left our client with no choice but to try her case to a jury of her peers. State Farm relied on the jury to give their elderly insured a pass. They counted on the jury to disregard the traffic safety rules that keep us all safe from danger.

Instead, the jury enforced the safety rules. They returned a verdict of $84,500. Clearly, the jury cared much more about the safety of their community than State Farm. The jury cared about a safety rule violation leading to a teacher who could no longer help kids nobody else wanted. The jury cared about a wife who could not help her husband make ends meet as she did before the wreck. They cared about a mom who is less of a mother to her children. They cared about a member of the community who is embarrassed about the person she has become. They cared about protecting the life of one of their own.

What does State Farm care about? They tried to hide behind their insured and get away with it. They also helped sponsor tort-reform legislation during the regular session of the 90th General Assembly in 2015. This legislation would have required injured Arkansans to receive no benefit for the premium dollars paid to their own automobile insurance companies. State Farm cares much more about their own profits than taking care of the people of Arkansas. Does that sound "like a good neighbor"?

Several anti-consumer bills introduced at the Arkansas Legislature

Yesterday was the bill-filing deadline for the Arkansas Legislature. Several anti-citizen bills were introduced. These bills are designed to increase profits for insurance companies and other major corporations at the public's expense. Please reach out to your legislators and oppose anti-consumer bills.

For example, under current Arkansas law, an injured person must be "made whole" by settlement or jury verdict before that person's health, worker's comp, or car insurance company has the right to recover any money from the at-fault party (or his or her insurance company). The reason for this law is this — as between the customer and the insurance company, the insurance company was paid to assume the risk of injury to its customer. This "made whole" doctrine is an issue of fundamental fairness because it helps Arkansans play on a more level field with insurance companies, who already get to hide behind their insureds and rarely get called to account for other bad faith tactics.

HB1907 would repeal this "made whole" doctrine, which would result in a windfall to insurance companies at the expense of Arkansas citizens. Several federal laws are already like this, and many Arkansans already receive nothing — zero — when injured because their federal insurance program gets paid first. The federal law is good for major corporations but bad for consumers, and HB1907 is a bad bill modeled on a bad federal law.

Please call your representatives and senators and tell them you oppose "tort reform" in any form or fashion. Conservative financial magazine Forbes recently declared that tort reform didn't reduce defensive medicine, but rather resulted in record profits for insurers. Forbes also noted tort reform had the unintended consequence of slowing down new patient safety initiatives to correct the 44,000-98,000 needless deaths that occur each year in hospitals. A list of legislators is on the Legislature's website here, and UALR has a district finder here if you need to identify your own legislators. 

Remind your legislators that the U.S. Constitution's 7th Amendment preserves the right of juries to make decisions about disputes between citizens exceeding $20. Under the Arkansas Constitution, this requires full compensation for any wrongs. Juries are the ultimate check on the power of government — they represent constitutionally-established local control of our own communities. Let's keep the power in the hands of the people, and out of the hands of the insurance companies.

Remember this: if legislators can take away your 7th Amendment right to a full and just award by a jury because an insurance company wants them to, they can take away your 1st and 2nd Amendment rights to free exercise of religion and to bear arms as well.

Today is Election Day – Please Vote!

“A man without a vote is a man without protection.” — Lyndon B. Johnson.

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There are a ton of interesting and important races on the ballot this election cycle. We have one of two U.S. Senate seats up for grabs today, and the winner will head to the U.S. Capitol (pictured above).

Meanwhile, in Arkansas, the constitutional offices are closely contested. Governor, Lt. Governor, Attorney General, Secretary of State, and many others have seen tight polling over the last few weeks. Quite a few House seats are close, including one sought by a long-time friend, Jeremy Ross.

Many state races, including our local house race between incumbent Richard Womack and challenger Damon Daniels, have turned into a de facto referendum on President Obama's policies — particularly the Affordable Care Act. It will be interesting to see how Arkansas handles Medicaid expansion, since Arkansas is one of few southern states to see a substantial drop in the percentage of uninsured. Here in Clark County, we went from 25% uninsured to 13% uninsured — a 12% drop. That's phenomenal. 

There are 5 issues on the statewide ballot, and you can see my thoughts on those elections here. Two counties are holding local option elections (links to results for Columbia and Saline Counties) in an attempt to change from dry to wet. If Issue 4 on the statewide ballot passes, the whole state will go wet. That would certainly be in line with what's happened in Arkansas over the past 6 years on a county-by-county basis; however, it would make Arkansas somewhat of an outlier in the South, since most other Southern states have similar wet/dry laws. I wonder if, as it did in 2010, if today's wet weather foreshadows the results of these wet/dry elections?

Out in Virginia, Hilary's brother, Brad Martin, is running for a seat on the Virginia Beach City Council.

I'll be watching closely as the evening progresses. Here's the link to the Arkansas Secretary of State's website, where voting will be reported once the polls close. Good luck to all the candidates out there.

What races have you most interested in this election?

Nathan Publishes Article in the Arkansas Law Review

The summer 2014 edition of the Arkansas Law Review is out, and I wrote one of the feature articles. The article is about the Arkansas Deceptive Trade Practices Act (ADTPA). The ADTPA permits any citizen who has been the victim of a deceptive trade practice to bring suit against the bad actor. The act is very broad and consumer-friendly. We most often see it when the Arkansas Attorney General uses it to stop wrongful practices, like very high interest check-cashers.

The Act contains an exemption for conduct "authorized" by federal and state laws and regulations. Some Arkansas courts apply the exemption as written. For example, when the Environmental Protection Agency approved an estimated mileage sticker for the Toyota Prius, an ADPTA claim against Toyota for misleading mileage estimates failed. The conduct was "authorized" by the EPA. When the ADTPA exemption is limited like this, it is known as an application of the "specific conduct" rule.

Some Arkansas courts have interpreted this to mean that all "regulated" conduct is exempt from the ADPTA. For example, some insurance companies argue that their claims practices are regulated and any ADTPA suit against them must fail, even though the insurance code defines certain insurance practices as deceptive (like failing to give you a reason for denying your claim). Primarily, the federal district courts for the Eastern District of Arkansas apply the rule this way; it is known as the "general activity" rule.

The Arkansas Supreme Court hasn't specifically ruled on this exemption. However, many courts around the country have ruled on similar exemptions.  My article surveys 50 other states, and concludes that most states having a rule similar to ours apply the specific conduct rule.

The full citation for the article is: Nathan P. Chaney, The Arkansas Deceptive Trade Practices Act: The Arkansas Supreme Court Should Adopt the Specific-Conduct Rule, 67 Ark. L. Rev. 299 (2014). I'll post a link when it becomes available.

Chipping away at the monolith

I've been fighting State Farm in a couple of federal court cases in east Arkansas. I had to ask the Court to order State Farm to produce its claim handling materials. These are the documents that show whether you get a fair shake from your insurance company. Usually, even if the documents say what they're supposed to (platitudes, we call them), the insurance company didn't follow the guidelines. The judge agreed with my client, and order State Farm to produce those guidelines. There's a good synopsis at the Property Insurance Coverage blog, so check it out.