June 1st, 2017

Crashing Through the House

Daniel Sajewski drover his mother’s Mercedes right through a house

When I write a headline entitled “Crashing Through the House,” it’s most likely because the car and driver literally crashed through a house.

We start our little story back in 2012 when 23-year-old Daniel Sajewski, Jr. crashed his father’s Mercedes in through the front picture window of a home and right out the back. You can see the picture here — in through the front and right out the back.

Ya’ think there might be some law out of this? That’s why I’m here. You’re welcome. Let’s get started.

First off, and coming as no great surprise to anyone, Sajewski was bombed out of his mind, blowing .30 on the breathalyzer, more than a wee bit over the limit in any jurisdiction that has any laws at all. (Depending on which story you read, he was downing shots of Jack Daniels, tequila and drinking beer.)

And then there was the part about Sajewski asking his then-girlfriend Sophia Anderson to take the rap, and claim she was the driver. He promised, according to news reports, to cover her legal bills and take her on vacation.

I’m betting you’ve already guessed that this deal, shall we say, came apart.

Sajewski had, at the time, six outstanding warrants on six different cases, suggesting he was not exactly a leading light in his community. He’d been charged with drinking on the subway, possession of marijuana and failure to complete community service for a previous conviction.

He had a record for petty theft and other drug possession charges, as well.

Sajewski ultimately pled guilty to driving while intoxicated, reckless endangerment and making false statements. He was sentenced to one-and-a-half to three years behind bars.

Now this is the part where I come in, the civil side. State Farm, which insured the house, coughed up 180K in insurance proceeds resulting from Sajewski’s demolition derby. (The two 90+ year old sisters who lived there were both unharmed.)

State Farm wanted its 180K back, and sued the driver, Sajewski, Jr. as well as his father, Daniel Sajewski, Sr., as Papa actually owned the car.

Papa Sajewiski said, in effect, let me out of this suit because my ne’er-do-well kid took the car without permission.  Not my fault!

Junior Sajewski supported his papa, and agreed that he took the car without permission. (I know! You’re shocked that Junior would help out his papa after wrecking the house of a couple of 90+ year old sisters and wrecking dad’s fancy car!)

But. Not so fast. In New York, it’s not just drivers of cars that are liable for the damage, but the you see, the owners also. (VTL 388(1)). This makes sense because owners are in the best position to evaluate the competence of the people they lend their cars to.

In the trial court, the judge said in legally sounding language, no way, no how, you ain’t getting out of this suit. Owners are responsible too.

But Papa pointed out that, while there is a strong presumption of permissive use of the vehicle, that presumption is rebuttable. And look here at the two affidavits of Papa and Junior, both saying that there was no permissive use.

Papa appealed. And yesterday, he got shot down again, this time by the Appellate Division, Second Department.

The court was pretty clear about this. For even though the testimony of no permissive use was un-rebutted by any other source, that is not always enough. While the court didn’t write the back story with four-part harmony (and feeling), it had the briefs. And they noted that the improbability of a story, or the interests of the witnesses, could effect how a jury perceives the evidence. The court wrote that:

 [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury’

So the question will, one day, go to a jury, where it belongs. Because questions of fact aren’t for the court.

And given the long history of legal trouble that Junior’s been in, I’m willing to bet that a jury will wonder why Papa didn’t hide the keys if he really didn’t want Junior to drive. And I’m not the only one to wonder why, as the court noted:

Daniel [Junior] had access to the appellant’s [Papa] residence. Further, the key to the vehicle was kept in a “central location” inside a bin located in the kitchen of the appellant’s residence. Additionally, on previous occasions, Daniel had been permitted by the appellant to drive other vehicles owned by the appellant.

Just remember this story the next time you loan a car to someone that might be somewhat less than reliable. Because you can be on the hook.

 

November 11th, 2015

Did David Aylor Really Cut and Run after Walter Scott Shooting?

David Aylor, initially hired by the insurance company to defend Slager.

David Aylor, initially hired by the insurance company to defend Slager.

You remember Michael Slager, don’t you? He’s the cop that shot Walter Scott in the back down in Charleston, South Carolina in April of this year. I pilloried his attorney, David Aylor, for first taking the case to defend Slager, then when the video surfaced and Slager was charged with murder, Aylor suddenly quit. And then yapped to the press about it. (See Enthralled With the Press).

Aylor was widely quoted as saying:

“All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.”

Damn that sounds bad. The  implication to me, and many others, is that Aylor was not going to rep this loser. Even though that is what criminal defense lawyers are often asked to do.

Now we have a pretty damn good update — Michael Slager has sued over the incident. Sued?! Sued who, I hear you ask.

Sued his insurance company, the Southern States Police Benevolent Association, Inc., which issues polices of insurance. For it was the insurance company that apparently hired Aylor, and the insurance company pulled the plug on the representation. (Slager v. SouthernStatesPBA)

And here’s the thing — Southern States did this, according to the complaint, within a day of the video surfacing.

According to the complaint, Slager was paying every month for his legal coverage that included this:

“The Legal Defense Benefit will be provided to Southern States PBA members only in those cases where a lawsuit or criminal accusation results from professional acts or omissions which arise out of and in the scope of their duties as a law enforcement officer.”

“The Benefit shall consist of the payment by Southern States PBA of attorney’s fees and directly related Court costs.”

“Coverage under the benefit is intended to apply to cases where a member has taken some type of direct law enforcement action consistent with his/her responsibilities as a law enforcement officer.”

ScottShootingSeems pretty straightforward, right? No matter how awful his conduct, he was clearly undertaking some type of law enforcement action — he wasn’t sitting at a desk making management decisions on which new clerk to hire.

The cops even get a wallet card that specifically deals with shootings:

  • “ALL SOUTHERN STATES PBA ACTIVE MEMBERS RECEIVE THE FOLLOWING LEGAL DEFENSE BENEFITS WHILE ACTING WITHIN THE SCOPE OF THEIR LAW ENFORCEMENT DUTIES.”
  • “SHOOTING: FOR ANY DUTY RELATED SHOOTING OR ACTION WHICH RESULTS IN DEATH OR SERIOUS INJURY, AN ATTORNEY WILL BE SENT TO YOU. CALL EMERGENCY 800 NUMBER ON FRONT IMMEDIATELY!!!”
  • “… ASSISTANCE IN CRIMINAL MATTERS EXCLUDE INTENTIONAL CRIMINAL ACTIVITY OR DRUG RELATED CRIMES.”

Except for this exemption clause:

“Southern States PBA reserves the right to withhold approval of any benefits and to withdraw approval of any benefits if it is determined at any time that the member has committed an intentional, deliberate and/or illegal act, either civilly or criminally.”

Now there isn’t any question that Slager was acting in the scope of his employment when he shot and killed Scott. His employer will be liable for any civil claim against it.

But if I read the complaint right, the insurance company is happy to give him a criminal defense as long as he is determined not to have done anything illegal?  An illusory and toothless contract?

This is the guts of the legal filing insofar as it pertains to Aylor and the April 4th shooting:

After requesting benefits under the Legal Defense Benefit plan, Defendant Southern States PBA granted Officer Slager’s request and assigned attorney David Aylor to represent Officer Slager in defense of the Scott murder charge.

On or about April 7, 2015, Attorney Aylor suddenly and summarily terminated his representation of Officer Slager.

Aylor took a lot of abuse for a few things: (1) cutting and running;  (2) yapping to the press about it, and (3) allowing Slager to be interrogated despite the fact that he had only the word of his client to go on.

But it now appears that the reason for the cut and run was that he wasn’t getting paid.  Aylor, it appears, wasn’t going to take on a very substantial and high profile murder defense without Mr. Green showing up to help.

There is this:

In a letter dated April 8, 2015, Southern States PBA explained that “upon review your [the] case,” it would not provide benefits under the intentional acts exclusion as it had determined that Officer Slager had “committed an intentional, deliberate and/or illegal act, either civilly or criminally.”

As per the suit, this was a one-day investigation, which is to say, that insurance company folks saw the video and saw a way out of the contract to defend and that, according to Slager, was bad faith.

This is not to say that Aylor’s conduct was the height of perfection, as he made dumb comments, allowed his client to be interrogated when he didn’t have all the facts and left the impression that he was running away from an unpopular client after seeing the video.

But this suit does seem to clarify the real reason he quit: He simply wasn’t getting paid by the insurance company.
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Elsewhere: At Death and Taxes:

When it comes to police who fuck up, no matter how awful a fuck up it is, they can usually always count on the local police union or fraternal organization to staunchly defend them and slander their critics.

That is, apparently, unless you’re Michael Slager, the South Carolina cop who was caught on video shooting unarmed civilian Walter Scott in the back.

Guess cold-blooded murder proved to be too much for the Southern States Police Benevolent Association (we’re surprised too!), because the organization, to which Slager had paid dues for legal representation while active on the force, dropped him the day he was charged in the killing of Scott.

 

October 21st, 2015

The Kool-Aid Drinking Lawyer

Helene Blank

Helene Blank

Even though Helene Blank has tried cases for both defendants and plaintiffs, and has been doing so since 1979 in roughly 130+ trials, and lectures widely, she is still stunned by what she sees.

She last appeared here in a good rant about bad faith and insurance companies.

She guest blogs today on lawyers that have surrendered their objectivity, and with it their ability to actually assist their clients…

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Kool-Aid drinkers to a plaintiff’s lawyer are defendants’ lawyers who, no matter how stark the evidence that the plaintiff is seriously injured, refuses to believe it and does everything they can to make sure your client isn’t properly compensated for their injuries. The insurance company must be protected from really hurt people at all costs.

I always thought the true Kool-Aid drinker was really a mythological beast not any more real than Bigfoot, Yeti or a werewolf. That was until last week.

I ran into a defense lawyer I hadn’t seen since we tried a damages only case of a client of mine who was irreparably and horribly injured from the accident caused by her client. This poor, sad soul developed what is known as RSD or CRPS – which stands for Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome — the people who have the true misfortune of getting this call it CRAPS — ’cause that’s what your life becomes, crap.

This syndrome happens to an unlucky person after an injury, their brain just goes haywire – and the affected limb is in constant unending pain. You become hypersensitive. You can’t be touched, you can barely wear clothes, you can’t use the limb, and it atrophies or wastes away.

This poor soul had even worse misfortune when the CRPS jumped from his left arm to his right leg — a not unknown phenomenon for these poor people.

His life as he knew it was ruined. He couldn’t sleep in a bed, be touched by another human, not his wife, not his children. He had a pain pump inserted into his spine in the hopes of gaining some relief.

He routinely begged his doctor to cut off his arm. If only it were that simple and such a barbaric act would cure him. Too bad, but it wouldn’t.

He was unable to really walk and he couldn’t use the affect arm to do much of anything.

The defense had him examined twice by a wonderfully credentialed doctor from one of the best hospitals in the world – the Hospital for Special Surgery. After each exam, this doctor reported that it was his opinion that my client did indeed suffer from RSD/CRPS.

But they never produced that doctor for the trial.

Instead, they hired for trial what plaintiffs’ lawyers in gentle circles call “a witness for hire” to testify that my client did not suffer from this. A witness who spends her career traveling the country testifying against injured victims who suffer from this. This doctor never once examined my client and completely discounted the defense’s medical exams. But okay –I know that’s what defense lawyers do. It’s their job to try and get the best possible settlement for their client.

I understand that, really I do. I was once one of them. But my encounter with this adversary last week so saddened me that it’s hard to get out of my mind.

After we exchanged niceties, she actually said to me:  your client, he’s out somewhere partying with all that money he got and he has finally taken that bandage off his arm. A “bandage” that he wore constantly to protect himself from human touch which he found excruciating.

I was shocked. Truly, absolutely shocked. This seemingly intelligent woman, who had all the truth in front of her during the trial, really drank the Kool-Aid. She just simply refused to believe that this poor man was so badly hurt.

I answered that she must be kidding. Did she really truly believe he was a fraud?

She actually said yes, and said she regretted not doing surveillance on my client. I told her that so did I, if for no other reason than I could have used the footage against her client because all she would have seen was what she saw in court. A beaten, hurt human being whose life was destroyed.

Her bizarre response to that was this made her feel better. It all made me feel so sad for this lawyer whose humanity was somehow lost along her way. It made me realize why I stopped being a defense lawyer a long time ago. I never was going to lose my humanity for any insurance company.

 

October 14th, 2015

About That Aunt Suing An 8-year-old…. (Updated x4)

Face of random kid that looks to be about 8

Face of random kid that looks to be about 8

It shot around the Internet yesterday, like so many other viral stories do, and all I could do was roll my eyes. It was the story of an exuberant 8-year-old boy in Connecticut leaping into the arms of his aunt upon seeing her, and her resulting injury, a broken arm.

The story was one that any adult could imagine. The woman testified:

All of a sudden he was there in the air, I had to catch him, and we tumbled onto the ground…I remember him shouting, ‘Auntie Jen I love you,’ and there he was flying at me.”

People were aghast. One only needs to read the comments of any article on the subject. How could you sue a beloved relative? And how could you sue a child?

But suing relatives (or close friends) happens all the time, particularly in auto collisions. Who, after all, are you most likely to be with at the time of a collision? A close friend or relative. Unless you drive a taxi, you don’t often have strangers in your car.

And it’s the same with your home, in that the most likely visitors inside are family and friends.

When I first saw the aunt-nephew story, my first thought was that homeowner’s insurance would cover the incident if there was liability, and that this was similar to suing a relative over a car crash. I tweeted as such:

Tweet

 

This is, in fact, one of the reasons we have insurance. To cover us in case we slip up and someone is injured due to our negligence.

Certainly insurance companies would prefer that folks don’t sue. It would be a great business model, wouldn’t it, to keep collecting all those premiums and never pay anything out?

In a story later in the day yesterday, the jury came back with a defense verdict — one juror said the jury simply didn’t think the boy was negligent when measured against the reasonable conduct of a child his age. OK, I can live with that.

At some point we all grow up and become increasingly responsible, and that line of responsibility won’t only be gray for a child’s conduct, but ever-shifting depending on what happened. (see, for example, a 4-year-old sued in NY along with parent for negligent supervision.)

Would I have taken such a case? No. Because the jury did what I expect a jury would do. But eviscerate her on the Internet for it? No.  She took the advice of counsel. Bad judgment call perhaps, though the attorneys defend the decision to move forward (see update).

And the injured woman was interviewed and confirmed my thoughts: Suit was brought against the homeowners policy to cover the medical bills, but you don’t sue the insurance companies, you have to sue the individuals. From CNN, who interviewed the Aunt:

“This was meant to be a simple homeowners insurance case”

Also at the CNN story, the woman testified that she remains close with the family and recently took the boy (now 12) shopping for a Halloween costume.

As with so many other things on the Internet, many people will howl and yell first due to the way a headline is written, without bothering to think that the actual conduct isn’t particularly egregious. The case may have been a loser, but it was not worthy of spilling all the resulting venom.

Update: On her attorneys’ website is this message about the case and the desire to get the medical bills paid:

“From the start, this was a case was about one thing: getting medical bills paid by homeowner’s insurance. Our client was never looking for money from her nephew or his family. It was about the insurance industry and being forced to sue to get medical bills paid. She suffered a horrific injury. She had two surgeries and is potentially facing a third. Prior to the trial, the insurance company offered her one dollar. Unfortunately, due to Connecticut law, the homeowner’s insurance company could not be identified as the defendant.”

“Our client was very reluctant to pursue this case, but in the end she had no choice but to sue the minor defendant directly to get her bills paid. She didn’t want to do this anymore than anyone else would.” But her hand was forced by the insurance company. We are disappointed in the outcome, but we understand the verdict. Our client is being attacked on social media. Our client has been through enough.”

Updated x2: These are examples of what Twitter has to offer.  Remember, this is suit is essentially about whether homeowner’s insurance will pay the medicals. The first from Joshua Carrasquillo of Lowell Massachusetts:JoshuaCarrasquillo
And the second from Brady Ricci of Vail, CO and Los Angeles:BradyRicci

And this is from Jack Marshall, who says he actually teaches ethics and has a blog called Ethics Alarms (coded “no follow“):

What’s going on is that Aunt Jennifer is pure hellspawn, a mysteriously animated pile of human excrement that embodies the worst of humanity.

This is what happens when people elect to post stuff on the web based on an initial news report that was, shall we say, very selective on what it chose to report.

Update x3: This site is getting quite a bit of traffic, most likely from many who never knew it existed. So let me answer a question some of you may have: Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind: On Suing and Being Sued

Update x4: Why did this little suit get national attention? Because of the way the original author wrote it — designed for clickbait, not accuracy. See: The Media Hit Job on the Evil Aunt

 

February 11th, 2015

Allstate Adjuster Likely Wants Her Snark Back

Allstate

Don’t those nice Allstate hands look so friendly?

A snarky email from an Allstate adjuster may cost the company $900,000. Here’s the story.

By most anyone’s definition, 66-year-old Carol Haberman’s experience while walking her dog can be a horrible, life-altering one. Newspaper deliveryman James Burke backed out of a driveway at night while making a 3-point turn and ran her over. Realizing something happened, he pulled forward, likely running her over again.

The result? A complex left hip fracture requiring a total hip replacement, a lumbar compression fracture and compartment syndrome requiring a fasciotomy of the left leg.

What happened in litigation, however, was astounding. You may hear me rant about insurance companies and adjusters sometimes, and now you’ll see another reason why. The difference here is that the adjuster actually put her Kool-Aid inspired thoughts into writing.

There were two fundamental issues to deal with: How to apportion fault as between a driver and pedestrian. And how severe the injuries were. This would include, of course, the extent to which she had prior injuries that may have been affected.

But any way you sliced it, this was a significant matter to be deftly handled. Practically speaking, both plaintiff and defendant would want to limit their exposure with a jury. This is the type of common sense risk management of which settlements are made.

This is also one of the primary reasons that picking stupid personal fights with the other side is detrimental to a client. Because one day you might need to talk turkey over coffee with that other side about how to best serve your client with a negotiated deal.

And so it came to pass that, with a $1.25M insurance policy on the line, the parties in Haberman v. Burke thought that they had reached a settlement of sorts. This would have been what we call a high-low agreement that limits the financial exposure of both sides, with the high being $1.1M and the low being $100K.

The problem? Plaintiff’s counsel, Paul Edelstein, believed that this established the high and low of damages, and that only the issue of liability would be tried. Given the costs of hauling experts into court, this is an arrangement that can make sense for both sides.

But no. Allstate insurance adjuster Andrea Sewsankar thought that both liability and damages would still be tried. And she wanted that despite the fact that her “expert” was the discredited orthopedist Robert Israel.

OK. An understandable miscommunication occurred. But one would logically then assume that an effort would be made to hash out a solution, especially since the defendant had a problem with its expert. Whether agreement would have been ultimately reached, who knows, but certainly the efforts would be continued. Right?

Dear Reader, would I be writing this if that effort were made?

No. Instead, Allstate’s Ms. Sewsankar shot off a deliciously snarky email after Edelstein said that the two of them were not on the same page as to the details of the high-low. This was the set-up to the nastiness, via emails that I have obtained that were  being used to confirm the deal:

Sewsankar: As we discussed, win or lose, your client is guaranteed a payout of $100,000 in exchange for a cap at 1.1 million. No appeal & your client will be responsible for all liens including and not limited to Medicare.

Edelstein: Correct.  But also no damages trial.  We will do hold harmless and deal with any medicare lien

Sewsanker: Oh no, damages trial also.

Edelstein: Oh man. Sorry. We weren’t on the same page.  I cant do that.  Only high low if we do away with damages trial

So far, not a problem, right? Just two sides trying to confirm in writing the nature of a deal, and then realizing that they had an unresolved issue.

And then, Boom! The testy little missive that will likely cost Allstate a bucket full of money before it’s all over, and which cracks open the Kool-Aid drinking mindset of some insurance adjusters, and which will be extremely important after this week’s verdict:

Sewsankar: No problem, I thought you had recognized the awesome skills of my defense counsel & wanted to garner a six figure payout for your client, so I took the opportunity to solidly protect my insured with this cap. Luckily, no payout will be warranted when Ed scores a defendant verdict on liability.

Thanks a million.

Don’t you love the hubris? I’m not sure which part of the email is the best: Is it boasting of the “awesome skills” of her counsel? The “no payout will be warranted?”

I’m betting it’s the “thanks a million” part that really must be hurting Allstate now. Because the liability verdict found 65% in favor of the plaintiff, meaning that Allstate would have been on the hook for only 65% of $1.1M high-low, or $715K.

But instead the case then proceeded to a damages trial with this result this week in very conservative Suffolk County:

past pain/suffering: $500K

future pain/suffering: $750K

future medical expenses: $400K

future home health aid/ assisted living facility costs: $800K

Add that up, and it comes to $2.45M, and 65% of that is $1.6M. And the insurance policy was only $1.25M.

So, when Ms. Sewsankar wrote “thanks a million” she was off by a bit. (I emailed her for comment yesterday morning but she has not responded.)

Her hubristic and intemperate email will, no doubt, be part of plaintiff’s efforts to collect the excess against Allstate in an action for bad faith. Her snark may cost Allstate about $900K. Either that, or it may bankrupt its insured.

You can almost feel the love from Allstate’s “good hands” logo. Almost.