Wayne Cohen and Adam Leighton were selected and named as two of Washington, DC’s Super Lawyers. Wayne Cohen was named as a Washington, DC Super Lawyer for his work with Personal Injury cases. Adam Leighton was named as a Washington, DC Super Lawyer for his work with Medical Malpractice cases.
One of the most important legal protections for workers is the Fair Labor Standards Act. First enacted in 1938, the Fair Labor Standards Act (FLSA) places many requirements on employers. Two of the law’s main requirements are minimum wage and overtime:
- Federal Minimum Wage: $7.25 per hour effective July 24, 2009 (tipped employees may be paid $2.13 per hour; if an employee’s tips combined with cash wage does not equal the applicable minimum wage, the employer must make up the difference)
- Overtime after 40 hours in a week = 1 ½ times an employee’s regular rate of pay.
The FLSA applies to most private and public employers. The FLSA requires employers to pay covered non-exempt employees at least the federal minimum wage and overtime pay for all hours worked over 40 in a work week. The FLSA does not regulate: (1) vacation, holiday, severance, or sick pay; (2) meal or rest periods, holidays off, or vacations; (3) premium pay for weekend or holiday work; or (4) pay raises or fringe benefits.
Employers who know the law will sometimes try to get around the FLSA by complex wage practices. Some tactics include labeling certain income as a “per diem,” or artificially setting the amount of time a job takes and paying the employee a fixed amount for that job. Experienced Washington DC employment lawyers and labor attorneys can help sort through these tactics to determine the true nature of an employees’ compensation.
The FLSA also does not cover all employees. Whether the FLSA applies to a specific employee is an issue that often the subject of litigation. In order for the FLSA to apply, two conditions must be met. First, the employee must work for a “covered enterprise.” Second, the employee must be “non-exempt.” Both these terms have very specific legal meanings and are often the subject of dispute in litigation. It can take an experienced Washington DC employment lawyer to determine whether a specific employee is covered.
There are two main characteristics that determine whether an employer is a “covered enterprise” under the FLSA. A “covered enterprise” is a business that is:
- Engaged in interstate commerce (workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for interstate commerce), and
- Has at least $500,000.00 annual gross volume of sales (or is a hospital).
The requirements for what employment constitutes a “covered enterprise” are complicated. A good Washington DC employment law attorney will be able to determine whether a business is covered.
Even if a worker is employed by a “covered enterprise” that does establish that the FLSA applies. The employee must still prove that he or she is “non-exempt.”
The FLSA’s overtime and minimum wage requirements do not apply to exempt employees. When it passed the FLSA, Congress recognized the importance of allowing flexibility in the rules for certain types of businesses, and so it allowed certain exemptions to the law. Some of the most common exemptions are white collar workers, certain computer professionals, farm workers, and salesmen. The law lists many more specific exemptions, each with its own definitions and rules.
The most important thing to keep in mind regarding the exemptions is that an employee’s title is not what determines whether he or she is exempt. Just because a person’s title is “salesman” does not necessarily mean she will fall under the “salesman” exemption. Courts look to the true nature of the employee’s job, not his or her title, in order to determine whether the exemption applies.
The reason the FLSA is such a powerful tool for workers is because of the remedies it gives. Any employer who violates the FLSA is liable to the employee for the full amount of their unpaid minimum wages, or unpaid overtime. In addition, the employee also receives the same amount of unpaid wages or overtime again. This is what is known as double recovery, and it is meant to provide a deterrent to employers. In addition, the FLSA requires the employer to pay reasonable attorneys’ fees and costs the employee incurred in bringing the lawsuit.
It is also a violation for an employer to fire an employee for making a claim under the FLSA.
In many cases, employers who violate the FLSA are counting on their employees either not knowing the law or being too afraid of losing their jobs to do anything about it, and in many cases they’re right. It can be difficult for employees to know whether the FLSA even applies to them.
If you think your employer may have violated the FLSA, the first thing you should do is contact an employment lawyer. There are important deadlines that must be met for an employee to bring a claim under the FLSA. Skilled labor attorneys serving Washington DC, like those at Cohen & Cohen know what is required to bring a successful FLSA lawsuit. Call (202) 955-4529 to speak to an attorney today.
Wayne Cohen, Cohen & Cohen, P.C., realizes that oftentimes, people who use the legal system have no understanding as to the value of their case. Is it a big case, is it a small case, or is it something in between. The reality is that juries value cases differently. In a nutshell, there are a few key factors that Wayne Cohen and the personal injury attorneys at Cohen and Cohen look at. First, how did the injury or accident happen? Whose fault was it? Second, how much medical treatment was needed? Did the injured victim go to the hospital? Was there surgery that was required? And third, what are the economic damages? Things like medical bills and lost wages.
If you are unsure as to the value of your case, and your case is in Maryland or the District of Columbia, contact Wayne Cohen at Cohen & Cohen, P.C.
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Cohen and Cohen‘s founder and managing partner, Wayne Cohen, is often asked, “What is a contingency case?” ”What does that mean?” Well, it’s pretty simple. What a contingency fee means is that there is no fee paid to the lawyer unless the client wins the case. That’s right, there’s no legal fee at all unless the client wins. According to Cohen & Cohen, P.C. and Wayne Cohen, most injury cases are handled this way. Automobile accidents, medical mistakes, and even product defect cases. Some other cases, such as breech of contract are also handled this way. Injured victims have a lot to deal with. They have medical bills, they often times can’t work and getting access to the court system is very important. Cohen and Cohen is there to help the victim navigate through this complicated maze. Contingency fee arrangements make this much easier. If you have been injured in Washington, D.C. or Maryland, call Wayne Cohen at Cohen & Cohen, P.C. today!
Cohen and Cohen‘s founder and managing partner, Wayne Cohen, is frequently asked by injured victims, “Do I have a case?” Of course, that’s a legitimate question. It’s not that anyone’s trying to get over on the system or get something that they’re not entitled to. They just want to know, “Do I have a case?” According to Cohen & Cohen, P.C. and Wayne Cohen, in order to win a case of negligence in Washington, D.C., three things must be present. One, there has to be a mistake. It doesn’t matter whether someone is riding on the road, or a physician’s error, or a product defect. There’s got to some sort of mistake. Second, there has to be an injury. The injury can be a broken bone, it can be a cut or it can be a bruise. Third, the mistake itself must have caused the injury. For example, if someone is in a car accident, the accident must have caused the injury. If you want to know whether you have a case in Washington, D.C. or Maryland, call Wayne Cohen at Cohen and Cohen, P.C. today!
Cohen & Cohen realizes that understanding your car insurance policy can be difficult. As a result, people often end up with policies that do not provide the right protection. Here is some basic information which you may not know. First, it is critical that you contain the right amount of coverage. Wayne Cohen, the founder and managing partner of Cohen and Cohen, P.C.,suggestion is that you carry the maximum amount of “liability” coverage. This will protect you in case you happen to cause an accident. Second, make sure that you have “uninsured motorists protection.” This insurance provides protection if you are struck by a driver who does not have insurance, or by a hit and run driver. Most states require that your insurance company provide you with this protection. Third, a good insurance policy will also contain “under insured motorists protection.” This type of insurance provides protection if you are struck by a driver who has only limited insurance. For example, if you suffer a serious injury by a driver who has only a $25,000 policy, but you have a $300,000 policy, you are eligible for $25,000 from the other driver and $275,000 from your policy (i.e., this equals $300,000). Fourth, “personal injury protection benefits” coverage (PIP) provides protection for medical bills and, sometimes, a portion of your wages, even if you are at fault in an accident. In some jurisdictions such as District of Columbia there are limitations on whether a person can make a PIP claim and pursue a claim for compensation. Fifth, many companies offer “gap coverage.” This type of policy provides protection on your financed vehicle. Essentially, if you financed $20,000 on your car and have an accident, but the value of the car at the time of the accident is only $18,000, “gap” coverage may apply and help make sure you are whole. Sixth, it is imperative that you carry collision coverage. Collision coverage provides protection when your car is damaged. Keep in mind that having collision coverage in the amount of $250 as opposed to $500 or $1000 may increase the amount of your insurance, especially if you are not inclined to make a damage claim for an amount which is less than $1000. You may want to get different quotes from your broker. The attorneys at Cohen & Cohen, P.C. can help you pick the right one!
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Insurance coverage is a complex matter, and varies greatly from state to state. If you would like more information on whether you have an appropriate policy, feel free to contact Wayne Cohen at Cohen and Cohen or any one of our lawyers one of our lawyers will review your policy free of charge.
Cohen and Cohen, P.C. often hears people say that they have “full” coverage, without truly understanding what that means. Having insurance coverage is very important if you are in an automobile accident or collision. Full coverage means that you have liability and collision coverage, and possible medical pay coverage. First, liability coverage means you are protected if you cause an accident, and the person you injured decides to sue you. It is important to have a very high liability limit. Second, collision coverage means that your automobile is protected. For example, if you cause an accident and your car is badly damaged, your collision coverage will help ensure that you either get a new vehicle or get your vehicle repaired. Third, medical pay coverage will help you get your medical bills paid for.
If you want to make sure you truly have “full” coverage on your automobile policy, have Cohen & Cohen review your policy. At Cohen & Cohen, P.C., our personal injury lawyers in Washington DC, Maryland, and Virginia, will review your automobile policy for free! Contact us today.
Cohen and Cohen, P.C. explains that medical malpractice or medical negligence occur when a doctor makes a mistake, and when that mistake causes an injury. Thankfully, medical mistakes do not occur frequently. Most physicians practice excellent medical care most of the time. However, like everyone else, physicians occasionally do make mistakes. When those mistakes cause injury to another person, this could result in a medical malpractice or medical negligence claim.
Generally, in order to prove a medical malpractice case, a plaintiff must hire another physician to serve as an expert witness. The expert witness will come into court and testify that the defendant physician departed from what is known as the applicable “standard of care.” The jury must decide whether the mistake was the cause of the plaintiff’s injury.
Each state has its own particular laws on what is necessary to prove a medical negligence or a medical malpractice case. The law firm of Cohen & Cohen handles medical malpractice and medical negligence cases in Maryland, the District of Columbia, and Virginia. If you would like a free consultation about your medical malpractice or medical negligence case, you should contact the law firm of Cohen and Cohen today.
Cohen & Cohen, P.C. knows that the question are lost wages taxable always arises. When a victim of a negligence case prevails in a settlement or in a trial, sometimes that victim is awarded compensation for wages that were lost. If the person had been working and received the money, then certainly that income would be taxable. However, if the award is made as a result of an injury, the law generally provides that money for lost wages is not taxable. Of course, you should check with your accountant and legal advisors to determine what the law is in your state.
If you are in need of a personal injury lawyer in Washington DC, Maryland, or Virginia, you should call our office for a free consultation today. The law firm of Cohen and Cohen has been called one of the best personal injury law firms in Washington DC, Maryland, and Virginia. The law firm’s managing partner, Wayne Cohen, handles all different types of personal injury cases, including car accidents, medical mistakes, and product defects.
Cohen & Cohen, P.C. wants you to know that if you have had a car accident in Maryland, the District of Columbia, or Virginia, there are 3 things you should consider doing immediately. First, make sure to get the other driver’s information. This includes the driver’s license, and insurance. You can write the information down, and if you have a phone with a camera, take a picture of the license and insurance card. Second, definitely get pictures of the vehicles. This means taking pictures of the damage on both vehicles. Third, consult with a lawyer before speaking to either insurance company – your’s or the other driver’s. Understanding the law will help you immensely when you’ve had an accident.
The law firm of Cohen & Cohen, P.C. has offices in Maryland, Virginia, and the District of Columbia. Cohen and Cohen represents people who have been injured by a medical mistake, wrongful death, birth injury, product defect, automobile collision and slip and fall. Cohen & Cohen, P.C. also offers a free consultation. So, if you have a question, you can get more information about the firm at www.CohenandCohen.net
According to a new report from the Texas A&M Transportation Institute, Washington DC, Maryland, and Northern Virginia have the worst commute in the country. Commuters in the nation’s capital needed almost three hours for a trip that should take 30 minutes without traffic, according to the report.
The Texas A&M Transportation Institute uses 30 years of traffic data, and its annual reports are one of the key tools used by experts to solve traffic problems. Researchers study how commuters adapt their travel plans when they have urgent appointments in highly congested areas based on data gathered from state transportation agencies, private companies and academic entities that monitor traffic issues.
Spending hours in the car throughout Washington DC, Maryland, and Northern Virginia results in hundreds of car accidents every day. Being involved in an car accident is a traumatic experience. Car accidents sometimes occur through no fault of your own, and can involve rear end accidents, side swipe accidents, and intersection accidents. Any accident has the potential to result in injury to the people involved. Car accidents in Washington, DC involve a number of issues including insurance laws, overlapping jurisdiction and other complex legal issues. Properly interpreting the law and effectively advocating your position is vital if you want to completely recover the damages from your car accident.
Damages for these types of accidents can include property loss, medical costs and lost wages. When trying to recover these damages, you will almost always be dealing with an insurance company. The goal of the insurance adjuster is to settle cases your car accident case and save the insurance company as much money as possible. Without a car accident attorney, the settlement process proceeds completely on the adjuster’s terms. This scenario will never yield the best possible result for you. Your attorney’s job is to level the playing field. Their main goal is to settle your claim to maximize your compensation. If you have been involved in an car accident in Washington, DC, Maryland or Virginia, you should contact a car accident lawyer quickly to ensure that you receive all of the compensation to which you are entitled.
Cohen and Cohen’s employment and labor attorneys realize that American society has come a long way since the days of open discrimination in the workplace. Unfortunately, racial, gender, and other forms of workplace discrimination are still far too common. The ways in which employees are discriminated against are more subtle today than in the past. Whether it is a promotion withheld, hurtful and hostile comments, or open bias, no worker should have to tolerate discrimination out of fear of losing her job.
The employment discrimination lawyers at Cohen & Cohen, PC fight for workers who suffer discrimination. We know that fairness in the workplace is a right everyone is entitled to. And we bring to bear decades of combined experience to ensure discriminated-against employees get the justice they deserve.
Virginia, Maryland, DC and the federal government all have laws expressly forbidding workplace discrimination. These laws prohibit discrimination on the basis of sexual orientation, race, gender, disability, pregnancy, and other protections. Workers who suffer discrimination may be entitled to some or all of the following remedies:
These are powerful tools for employees who have had their rights violated. But to succeed in such claims takes skill and toughness – traits the employment rights lawyers at Cohen & Cohen, PC have in spades.
If you think you have been discriminated against at work contact the employment discrimination lawyers at Cohen & Cohen, PC today for a free consultation.
For many people, work is not just a means of putting food on their family’s table. It’s also a source of meaning in their lives. We can take pride in working hard to a see a job well done. And in today’s uncertain economy, many people have been asked to work harder for less. When just having a job seems a blessing, most people won’t complain about having to do a little more.
Unfortunately, the bad economy has also led some employers to try to cut costs by cutting workers’ out of pay they have earned, overtime pay, or by paying them less than minimum wage. This is not only unfair, it can also be unlawful. Most employers who engage in these abuses are counting on their employees being too afraid of losing their jobs to do anything about it. Sadly, they are often right.
If you believe you haven’t been treated fairly by your employer, you can do something about it. You are not helpless. The employment lawyers at Cohen & Cohen, PC are ready to fight for the pay you earned. Whether it’s minimum wage violations, or unpaid overtime, our lawyers help clients recover what they are owed.
The overtime lawyers at Cohen & Cohen, PC know that one of the most powerful tools available to workers is the Fair Labor Standards Act (FLSA). This federal law requires that employers pay overtime and meet federal minimum wage requirements. The law lets workers recover against violating employers for
To bring a claim under the FLSA a worker must meet certain requirements, including (1) being a non-exempt employee, and (2) working for a business that is engaged in interstate commerce or generated a certain amount of revenue in a calendar year. The employment attorneys at Cohen & Cohen, PC can tell you if you are covered by the FLSA minimum wage, overtime, or other protections. Call us for a free consultation to see if you qualify.
Besides the FLSA, there are other federal and state laws protecting workers. The patchwork of laws affecting employment and wages can seem confusing and overwhelming. But if you believe you have not been paid for work you’ve done, or if you think your employer may be violating labor laws, call the labor lawyers at Cohen & Cohen, PC for a free consolation.
Se Habla Español.
Carbon monoxide is a colorless, odorless, and tasteless gas that can cause a lot of harm or even death to you and your family if not properly monitored. Hundreds of people accidentally die every year from carbon monoxide poisoning caused by malfunctioning fuel-burning appliances and idle cars. Fetuses, infants, and elderly people can be especially susceptible to carbon monoxide poisoning. Be safe by practicing these DOs and DON’Ts:
If you start to have severe headaches, dizziness, nausea, faint, and are short of breath, you may be experiencing carbon monoxide poisoning. Try going outside of your home. If the symptoms disappear then the carbon levels in your home could be dangerously high. Immediately go to the hospital to make sure that no permanent damage has been done and have your home inspected for high levels of carbon monoxide.
Following these simple DOs and DON’Ts could save you or your family’s life.
Wayne Cohen addresses the competitors of the George Washington University School of Law / Cohen & Cohen, P.C. mock trial competition.
Photos from the Cohen & Cohen Mock Trial Competition that was held on Monday, November 12, 2012.
http://ips.wppi.com/GWU/Law-School/2012-Cohen-n-Cohen-Moot-Court
Have you ever walked out of a deposition heady with the knowledge that you “won”? You had your Perry Mason moment and obtained critical information, perhaps even an admission, during your interrogation of the witness. On the way back to your office you call your colleagues to report the good news. Then you call your client. Things couldn’t be better for the case. You think, “I am one good lawyer!” After sharing the good news back at the firm, your law partner asks, “Did the witness waive reading and signing?” You exhale deeply. “No, there wasn’t a waiver,” you answer, brought a little bit back down to earth.
Fast forward thirty days. The witness has elected to review the deposition pursuant to Rule 30(e) of the Federal Rules of Civil Procedure (or the parallel state rule). Rule 30(e) allows for modifications in the testimony given by a witness, and specifically provides that there may be “changes in form or substance.” Fed. R. Civ. P. 30(e)(emphasis added). All the witness must do is submit a signed statement, commonly known as the errata sheet, along with a list of the changes and the reasons for making the changes. At that point the deposition is deemed to have been changed. You receive the errata sheet in the mail, and realize that your supposed victory has been thwarted; both form and substantive changes have been made. Yikes! The witness clearly consulted with his lawyer, decided that the answer was awful, and perhaps not exactly what he intended. It needed to be changed.
How could this problem have been avoided? Perhaps the most effective technique that some trial attorneys use to balance Rule 30(e) is to videotape the deposition. It may not be economical to videotape all depositions in a case; however, for key witnesses, having a videographer makes sense. To be clear, the videotape does not prevent the witness from making a substantive change as Rule 30(e) still applies regardless of the manner in which the deposition was recorded. That said, the statement made on the videotape – in almost all circumstances – can still be used for impeachment purposes. It remains a prior inconsistent statement which can be used to cross examine the witness. The witness will have an opportunity to explain at trial exactly why the statement was later changed, but if in the videotape the witness appears confident and assured when giving the original answer, the explanation for the change will not be credible. Using a written transcript to impeach a
witness simply does not pack the same punch.
In addition to helping keep witnesses honest, videotaping also helps the jury comprehend and retain the testimony. Imagine that you are deposing Danny, the defendant driver in a case, and you have reason to believe that Defendant Danny smoked marijuana before injuring your client. You ask, “Did you smoke marijuana before the accident?” Danny pauses, looks down, and then looks at his lawyer as if waiting for an objection. Hearing nothing, he then looks down again. After a tortuous 30 seconds, he answers in a meek and quiet tone, “No.” The transcript of the deposition would simply read:
Q: Did you smoke marijuana before the accident?
A: No.
The videotape, however, tells a very different story because it provides information beyond simply the written transcript. Here, it shows Defendant Danny’s demeanor, shifting eyes, and pregnant pause. Because the jury is actually seeing and hearing the testimony, the retention and impact of the testimony are greater.
A final benefit from videotaping a deposition is that it can also help keep a check on opposing counsel. Putting aside the ethical impropriety of coaching a witness during a deposition, we have all encountered lawyers who suggest answers to witnesses. An opposing lawyer may say, “Answer the question if you know,” with a heavy emphasis on the “if you know” part. The witness recognizes the cue and then proclaims, “I don’t know.” Videotaping depositions deters this conduct because lawyers recognize that videotaped depositions show tone in real time; a written transcript does not.
Witnesses also take non-verbal cues from their lawyers. A simple sigh, roll of the eyes, or shifting of papers can send a message to a client. Obstructionist lawyers are far less likely to engage in this behavior during videotaped depositions.
In short, videotaping depositions is an effective way of insuring that your record is accurate, and gives you the best chance of winning your case.
Judge John L. Carbonneau of the Connecticut Superior Court determined that Ben Burningham and Ryan Sullivan won Monday’s Cohen & Cohen Mock Trial Competition. Caitlin Clarke and Felipe Garcia were runners-up.
This was also the first year that the Competition awarded Best Advocate Awards based upon scores in the preliminary rounds. Ryan Sullivan placed third, Patricia Klanke was second, and Joshua Hall was selected as Best Advocate.
Hurricane Sandy wreaked havoc across the Northeast, causing catastrophic injuries and damaging property. Originally developing as a tropical wave in the western Caribbean Sea, it quickly became a depression and eventually a Category 1 hurricane. Hurricane Sandy affected at least 24 states from Florida to New England, and brought a destructive storm surge to New York City.
If you have suffered substantial property damage as a result of Hurricane Sandy, it is important for you to understand your legal rights. Here are five key pointers.
First, get a copy of your policy before you do anything. If you do not have a copy of the policy at home, call your agent and get a copy. You need to understand the exact coverage that you have, and what exclusions might apply. When reviewing your policy determine whether you have “flood” insurance. Many people do not. Flood insurance is underwritten by FEMA, and generally covers building property up to $250,000 and personal property up to $100,000.
Second, when reviewing your policy, make sure you understand whether you have coverage if there is a “named” storm (i.e., a storm such as Hurricane Sandy). Some policies exclude coverage for this type of damage.
Third, once you have read and understand your policy, then you need to notify the insurance company promptly. If you fail to do so, the insurance company may later argue that there isn’t coverage because of your delay.
Fourth, consider hiring an expert to help you identify all of your damages. For example, an untrained eye may only see paint and drywall damage, whereas an expert may understand that there could be underlying mold that must be addressed.
Fifth, never rush to settle your case. Take your time. Make sure that you have all of your ducks in a row when it comes to identifying each and every one of your damages.
Wayne Cohen of Cohen and Cohen, P.C. speaks to WTOP about filing post Hurricane Sandy insurance claims. He addresses the important issue of avoiding mistakes in your post-storm home claim.
http://www.cohenandcohen.net/wp-content/uploads/2012/10/WTOP_Audio_10_30_2012.mp3
Cohen & Cohen has proudly sponsored the annual Cohen & Cohen Moot Court Competition at The George Washington University School of Law since 2002, . Every year, talented upper-class law students from GW compete for an opportunity to sit on the Mock Trial Board. An award-winning trial attorney with more than twenty years of courtroom experience, Wayne Cohen is passionate about sharing his experiences and knowledge with law students. Through Cohen and Cohen’s sponsorship, the annual competition provides law students interested in litigation an opportunity to showcase their trial advocacy skills in a competitive and challenging environment.
Insurance and personal injury cases:
A crash course for young lawyers
by Sean A. Sherlock
There is much you do not learn in law school. Some things (like how to interact with actual clients) cannot really be taught in the classroom. Others (like the requirement that a Friday civil motions hearing Praecipe be filed on yellow paper) are too esoteric to be of use until you are in practice. But as a new lawyer practicing personal injury law, you soon realize that law school taught you next to nothing about one of the most important aspects of tort law: insurance.
The problem this creates for the young lawyer is twofold. On the one hand, the ways in which insurance affects personal injury litigation are incredibly complex. On the other hand, there is no easy reference, no local rules, to consult for answers. In a busy practice, you just have to take the issues as they come and try to assimilate as much knowledge as you can along the way. It is with that in mind that I offer these lessons.
First, a caveat. In no way is this article intended as an exhaustive survey of the ways insurance law, policy, and business practices can affect a personal injury case. Rather, this article grows out of my experience as a first-year associate in a boutique personal injury firm. The hope is that this article might help shorten the learning curve for the next class of plaintiffs’ lawyers.
Coverage counts
The ways in which insurance coverage can affect a personal injury case go way beyond simply fighting for the policy limits. Identifying and understanding all the potential coverage involved, and how your client can access it, is an essential first step which can and should drive case strategy.
For the plaintiff’s lawyer (who would probably have “Collateral Source Rule” tattooed across his knuckles, if only he had enough fingers) openly admitting this goes against the grain. We spend much of our time arguing – rightly – that compensation is based on the plaintiff’s injuries, not on what coverage happens to be available. But there are completely valid reasons, having nothing to do with greed, for why the attorney and the client need to keep one eye fixed on the available policy limits at all times.
A personal injury case is like a chair with four legs: liability, causation, damages, and “pockets.” Take away any one, and the whole chair collapses. In the absence of insurance, the vast majority of defendants are judgment-proof. While plaintiffs do have ways of collecting against a defendant’s personal assets to satisfy a judgment, these are typically difficult to pursue and inefficient, not to mention defendants have powerful ways of thwarting such efforts.1 Which is why, without coverage, most of the time the chair falls over.
Find all the policies
To ensure the maximum recovery for the client, the successful plaintiff’s lawyer should leave no stone unturned in searching out all policies of insurance which may cover the loss. The defendant’s policy is of course at play, as is their employer’s if they
caused the injury while acting in the scope of their employment. Significant coverage can also be found on the other side of the “v.”
In an automobile accident case, an important source of recovery may be the client’s uninsured/ underinsured motorist coverage. Every policy of automobile liability insurance issued in the Commonwealth of Virginia must include coverage for accidents caused by uninsured or underinsured motorists.2 Uninsured motorist insurance (“UM”) provides coverage for accidents caused by drivers who do not have insurance.3 Underinsured motorist insurance (“UIM”) provides coverage in cases where the tortfeasor’s insurance is inadequate – meaning, where the plaintiff’s UIM coverage is greater than the at-fault driver’s insurance.
In practice, there is much more to recovering from a plaintiff’s UM/UIM coverage.4 For the new plaintiff’s lawyer, the point is simply that the search for available coverage can never end with the defendant.
Understand the policy
The nature of the potential coverage, what it covers, how it interacts with other potential coverage, and even how you can plead yourself out of it, are all intricate questions that need to be answered. Doing this will allow you to communicate to the client in concrete terms the range of possible outcomes of the case. It will free you to focus on building your case, instead of worrying about having the rug pulled out from under you at the eleventh hour. Contract law principles are the foundation for understanding the policy, and therefore, the coverage.
Insurance policies are contracts, and courts will apply contract principles when interpreting a policy’s provisions. This can be to the insured’s benefit.5 Other times, this cuts against the insured, as when courts apply the principle that an insurance contract be enforced according to its plain meaning to the greatest extent possible.6
The practice of strictly construing insurance policies according to their plain language can have a profound effect on the client’s recovery.7 A recent decision of the Supreme Court of Virginia offers a dramatic example. In AES Corp. v. Steadfast Ins. Co., the plaintiffs sought to recover from a commercial general liability (CGL) insurance policy for damages they alleged were caused by intentional acts, or were the “natural or probable consequence of [an] intentional act.”8 The Court looked to the “eight corners” of the complaint and the insurance policy, and held that the plaintiffs could not recover because the complaint failed to allege an “accident” or “occurrence” as those terms were defined in the CGL policy.9 While the lasting impact of this decision remains open for debate, the case is at least a stark example of the importance of paying close attention to policy language when drafting pleadings.
Read the entire policy
Like any other contract drafted by a sophisticated actor, insurance policies tend to be long, complex documents. The “policy” itself usually consists of several distinct documents, including declaration pages, endorsements, amendments, and addendums. It is important to carefully read everything. This is especially true for newer lawyers who may be unused to some common conventions of insurance policies. For example, a policy of umbrella (or excess) liability insurance could include as an “Amendatory Endorsement” the following language:
EXCLUSIONS
Exclusion 10., which reads as follows, is deleted.
10. loss sustained while an automobile or recreational motor vehicle is driven or operated by an insured, other than you, who is excluded by a named driver or operator exclusion of any similar exclusion under any required underlying insurance, even if coverage is provided by another policy; (emphasis in original).10
The effect of this language is actually to broaden coverage. Yet this provision appears on a separate, loose piece of paper, sandwiched among several other “Amendatory Endorsements.” A less than careful reading could easily miss those two words, “is deleted” and so misconstrue the entire policy.
Statutes matter, so read them too
Liability insurance is heavily regulated by statute, therefore understanding the statutory framework of insurance is critical to identifying sources of recovery for the client. To take just one example: the Omnibus Clause in Va. Code §38.2-2204 requires that automobile liability policies provide coverage for the negligence of people, other than the named insured, who use the covered vehicle with the “expressed or implied consent of the named insured.” The statute further specifies:
Provided that, when one accident or occurrence involves more than one defendant who is covered by the policy, the plaintiff may recover the per person limit of the policy against each such defendant, subject to the per accident or occurrence limit of the policy. Va. Code Ann. §38.2-2204.
So what is the significance of this statute? A brief hypothetical will demonstrate the answer. Suppose Ned is the named insured on a policy of automobile liability insurance with limits of $100,000 per person, and $300,000 per accident. Ned lends his car to his friend Dan, whom Ned knows is a notorious drunk. Sure enough, Dan becomes intoxicated, gets behind the wheel of Ned’s car, and negligently runs into Vince. Vince is seriously injured as a result. In this hypothetical, Vince has a claim for negligence against Dan, and a claim for negligent entrustment against Ned.11 The effect of the Omnibus Clause in this scenario is to double the available coverage for Vince’s injuries. Because Dan was a permissive driver of the covered auto, he is covered under Ned’s policy. And because negligent entrustment is a separate tort from negligent driving (a separate “occurrence” under the policy), Vince can recover the per person limit of $100,000 against Ned for negligent entrustment, and another $100,000 against Dan for negligent driving.12 Great news for Vince.
Understand the players
In a typical third-party-liability case, defense counsel represents the alleged tortfeasor. That is her client, and regardless of who is footing the bill for her services, it is the defendant to whom defense counsel owes her ethical duty.13 At the same time, the defendant does not decide when and for how much to settle the case. He contracted away that right in exchange for a legal defense and indemnification against a judgment (to the policy limits).14
It is the “Home Office,” or more specifically the claims adjuster, who holds the purse strings. So understanding the adjuster’s motivations is important to settling any case where there may be insurance available to your client. The possibility of an excess judgment, and the attendant bad faith implications for the insurance company, may be one motivating factor for the adjuster to settle the case.15 But that is a tough claim for the insured to win, since it requires proof by clear and convincing evidence.16
A more present danger for the claims adjuster is the risk of “under-reserving” the case. A “claim reserve” is money set aside by the insurance company to cover future payment of a claim. One of the duties of the claims adjuster is establishing this claim reserve. Claim reserves are classified as liabilities on the company’s balance sheet, and when the company doesn’t set aside enough money to cover its liabilities, it hurts the company’s bottom line.17
By being transparent with the adjuster early in the case – before suit is even filed – you can empower him to more accurately evaluate the case, and to set a more appropriate claim reserve. For example, give the adjuster the documents he (reasonably) needs to evaluate the insured’s liability and your client’s injuries. If there is a reason you do not want the adjuster to see your client’s medical records for claimed treatment, then that is probably a case you will have to try anyway. Otherwise, it does no good to make a monetary demand without substantiating it. Remember that the adjuster answers to someone, and he will eventually have to justify his decision to pay your demand. Empower him by giving him the tools to do it.
Conclusion
This article barely scratches the surface of all the important ways insurance affects personal injury litigation. Hopefully, what these lessons do make clear for new trial lawyers is the need to think critically about what coverage may be available to compensate the client, and how best to access it. By recognizing the issues, knowing the motivations of the actors involved, and being diligent, it is possible to maximize the likelihood that your client will be able to recover just compensation for their injuries.
Endnotes
1. Significant protections are available through the Virginia Homestead Exemption, Va. Code Ann. §34-4 et seq. A judgment debtor can also halt all attempts at collection by filing for bankruptcy. And finally, when all else fails, they might always resort to good, old-fashioned concealment of assets.
2. See Va. Code §38.2-2206(a); and Hackett v. Arlington County, 247 Va. 41 (1994) (applying the requirement to self-insurance as well). But see Va. Code §38.2-2206(j) (exempting excess or “umbrella” policies from the requirement).
3. A driver is also “uninsured” if he has insurance but is denied coverage for some reason. See Allstate Ins. Co. v. Jones, 261 Va. 444 (2001).
4. For an excellent guide of how to successfully recover UM/UIM coverage, see Gerald A. Schwartz, “Maximizing your client’s recovery with underinsured motorist coverage,” The Journal of the Virginia Trial Lawyers Association, Volume 21 Number 1 (2009).
5. See Goodville Mut. Casualty Co. v. Borror, 221 Va. 967, 970 (1981) (affirming the principle, similar to the contractual canon of construction contra proferentem, that any ambiguity contained within an insurance policy will be construed against the insurer).
6. See, e.g., Christy v. Mercury Casuality Co., 283 Va. 542 (2012) (looking to the “clear and unambiguous language” of an automobile liability policy, and holding that the policy’s exclusion of med pay coverage “to the extent that benefits therefor[] are in whole or in part payable” by workers’ compensation, excluded coverage of all medical expenses, even where only a portion of the medical expenses were payable by workers’ compensation).
7. See Salzman v. Kanchev, 80 Va. Cir. 139 (Va. Cir. Ct. 2010) (finding one sentence on a declarations page operated to exclude any intra-policy stacking of uninsured / underinsured motorist coverage).
8. 283 Va. 609, 620 (2012).
9. Id. at 621.
10. This language is taken directly from an umbrella policy issued by State Farm.
The Journal of the Virginia Trial Lawyers Association, Volume 23 Number 4, 2012 19
11. See Crowell v. Duncan, 145 Va. 489 (1926). But be warned, negligent entrustment is a difficult claim to recover under in the Commonwealth. See, e.g., Turner v. Lotts, 244 Va. 554 (1992).
12. See Johnson v. Windsor Ins. Co., 268 Va. 196 (2004).
13. See Rule of Professional Conduct 1.8(f).
14. See State Farm Mut. Auto. Ins. Co. v. Floyd, 235 Va. 136, 142 (1988) (“[T]he insurer has control of the defense, ordinarily including the right to negotiate settlement at its discretion….”).
15. Id., (“[A]n insured, in order to recover for an excess judgment on the ground that the insurer failed to take advantage of an opportunity to settle within the policy limits, is required to show that the insurer acted in furtherance of its own interest, with intentional disregard of the financial interest of the insured.”)
16. Id.; see also Nationwide Mut. Ins. Co. v. St. John, 259 Va. 71, 76 (2000).
17. Smarter people than this author can explain this in more detail. See, e.g., Wehe, Jeffrey C., “Take the initiative with injury claim reserves,” Trial Magazine (July 1, 2006).
Sean A. Sherlock is an associate at Cohen & Cohen, P.C., a boutique personal injury firm serving clients throughout Virginia, Maryland, and D.C. He received his B.A. from Penn State University, and graduated cum laude from American University, Washington College of Law in 2011. During law school, Mr. Sherlock clerked for the U.S. Senate Judiciary Committee’s Crime and Drugs Subcommittee, spent a summer at the D.C. Office of the Attorney General, and served as a student prosecutor in the Anne Arundel County State’s Attorney’s Office.
The most frequent question our clients ask is, “How much money will I receive from my case?” Placing a value on a personal injury case is not easy, but there are three simple tips to consider.
First, cases are generally valued based on the extent of the damages. The greater the damages, the greater the value of the case. For example, a person who suffers a broken bone or other serious injury may be entitled to more damages than a person who simply has a “soft tissue” injury.
Second, the strength of the case in terms of liability is also important (i.e., how did the incident occur?). A medical malpractice case where a physician leaves a sponge in a patient may be easier to prove than a different type of case. Accordingly, the stronger case may be more likely to be successfully resolved.
Third, there are many other damages that are to be considered when valuing a claim. These may include (but are not necessarily limited to) the following:
At Cohen & Cohen, we are a bilingual DC law firm consisting of Washington DC personal injury lawyers and Maryland and Virginia personal injury attorneys. We are committed to representing the rights of injured victims. Specifically, our 6-lawyer boutique trial firm represents people who have been injured by a medical mistake, wrongful death, birth injury, product defect, automobile collision and slip and fall.
Cohen & Cohen, P.C. is a bilingual DC law firm consisting of Washington DC personal injury lawyers and Maryland and Virginia personal injury attorneys. Personal injury lawsuits are the result of someone’s negligence toward another, causing bodily injury or harm.
You must prove that you have been injured by another party’s careless or reckless actions to win a personal injury claim in Virginia, Maryland and Washington, DC.
Physical personal injury can include: disfigurement, loss of limb, permanent or disfiguring scars, disability, and loss of one of the five senses. Mental harm might include: emotional trauma, mental anguish, embarrassment, or loss of enjoyment.
Whether your injuries were caused by an accident, malicious intent, or a defect in a product’s design, production or labeling, you have the right to seek compensation for economic and non-economic damages.
There is a statute of limitations that applies to all personal injury cases in Virginia, Maryland and Washington, DC . Victims have a limited timeframe in which to file their case. It is important that you consult a personal injury attorney in Washington, DC, Maryland or Virginia if you believe you have a claim, so that you protect your right to file suit.
Cohen & Cohen, P.C. is a DC law firm consisting of Washington DC personal injury lawyers, Maryland personal injury attorneys, and Virginia personal injury lawyers. We are committed to representing the rights of injured victims.
Cohen and Cohen, P.C. wants you to know that Forbes just published Allstate Insurance’s list for the country’s worst drivers. Washington, DC has the worst drivers in the country! Drivers get into automobile accidents in Washington, DC on the average of every 4.7 years! The national average for an automobile accident is once a decade. The #2 spot for automobile accidents is Baltimore, Maryland!
Throughout Washington DC, Maryland, and Northern Virginia hundreds of car accidents occur every day. Being involved in an car accident is a traumatic experience. Car accidents sometimes occur through no fault of your own, and can involve rear end accidents, side swipe accidents, and intersection accidents. Any accident has the potential to result in injury to the people involved. Car accidents in Washington, DC involve a number of issues including insurance laws, overlapping jurisdiction and other complex legal issues. Properly interpreting the law and effectively advocating your position is vital if you want to completely recover the damages from your car accident.
Damages for these types of accidents can include property loss, medical costs and lost wages. When trying to recover these damages, you will almost always be dealing with an insurance company. The goal of the insurance adjuster is to settle cases your car accident case and save the insurance company as much money as possible. Without a car accident attorney, the settlement process proceeds completely on the adjuster’s terms. This scenario will never yield the best possible result for you. Your attorney’s job is to level the playing field. Their main goal is to settle your claim to maximize your compensation. If you have been involved in an car accident in Washington, DC, Maryland or Virginia, you should contact a car accident lawyer, Wayne Cohen of Cohen & Cohen quickly to ensure that you receive all of the compensation to which you are entitled.
Cohen and Cohen, P.C. attorneys are frequently asked the question, “Do I have a case?” The answer, unfortunately, is not always a simple one. Injury cases typically have three elements: a mistake, an injury, and proof that the mistake caused the injury. The analysis can be most clearly illustrated by examining a medical malpractice or product defect case.
In order to evaluate a medical malpractice case, the first item to address is whether the physician, nurse, or health care provider did something improper. In order to prove this fact, the law – in most states – requires that the injured victim introduce evidence from another similar person (i.e., physician, nurse, or health care provider) to testify that there was a mistake made. This is often called establishing that there was a violation of the “standard of care.” There are, of course, some exceptions to the rule. Proving this violation is often viewed as the most difficult part of a malpractice case.
Next, it is imperative to prove that there was an injury as a result of the violation. Although this is sometimes the least difficult element of proof, it maybe sometimes difficult to prove nonetheless. Take the situation where a health care provider fails to advise the patient of the risks of a certain procedure. The health care provider may have violated the “standard of care,” but if nothing actually went wrong during the procedure, then there is no case. Similarly, the situation may arise where a health care provider orders an improper medication for a patient, but the medication mix-up is harmless. Again, there may be a clear violation of the standard of care, but no damages.
Finally, the injured person must prove that her injury was caused by the mistake. This is where claims may get tricky. The injured victim must prove that the particular violation of the “standard of care” caused the victim’s injury. In certain cases the connection may be simple. For example, a basic case might arise in a situation in which a physician leaves a sponge in a patient during surgery, and that patient subsequently develops an infection. By contrast, a more complex matter might involve proving whether a birth injury is necessarily related to a physician’s failure to perform a timely c-section. Did the delay in performing the c-section cause the birth injury? Or was the birth injury caused by genetic factors long before the delivery?
Determining whether a client has a case is a complex matter. You should review your case with a competent lawyer from Cohen and Cohen, and let Cohen & Cohen make the decision as to whether you have a case!
Cohen and Cohen, P.C. welcomes and thanks you for visiting the Blog for the website! Cohen & Cohen, P.C. is a DC law firm consisting of Washington DC personal injury lawyers, Maryland personal injury attorneys, and Virginia personal injury lawyers. We are committed to representing the rights of injured victims. Cohen and Cohen represents people who have been injured by a medical mistake, wrongful death, birth injury, product defect, automobile collision, and slip and fall.