June 14th, 2018

NY Senate Passes 2nd Bill in 2 Weeks Restricting Free Speech

Dear NY Senate:

What the heck is going on up there in Albany? Last week you passed an anti-cyberbullying bill that restricts free speech and conduct in such a way that, if ultimately signed, is guaranteed to be tossed into the trash heap by courts because it violates the First Amendment.

And this week you do it again?! This time with your Elder Abuse Bill (S.409) that makes it a crime for caregivers (including family) to post photos on social media if elderly, vulnerable seniors aren’t able to give consent.

Now I understand it might have made you feel good to pass such a bill, and you get to boast to constituents that you are doing something in Albany, but do you realize what you have really done?

For the benefit of those who voted for the bill but didn’t read it, this is what is made into a misdemeanor:

A  PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR  DUTY  OF CARE  FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED  TO  FACEBOOK, YOUTUBE,  TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT SUCH PERSON’S CONSENT.

First off, while the First Amendment says that Congress “shall make no law…abridging the freedom of speech,” and the amendment applies to the states, there are still some very limited exceptions to it. But this just isn’t one of them.

The First Amendment is no defense to conspiracy discussions about committing a crime, or defamation, or inciting imminent lawless action, or obscenity or copyright.

I don’t see posting pictures of elderly Ma or Pa on that list. For this bill, if signed, to pass constitutional muster, the Supreme Court would have to create a wholly new category of restricted speech. Do you think they will do that? Or more importantly, did you even analyze that?

My guess is no since this bill passed 61-0, and there are more than a few lawyers in the Senate.

So, let’s say, on disabled Ma’s birthday you (a caregiver) hold a party for her, even though she can only semi-appreciate it. Then you share those party photos on Facebook for your friends and non-attending family members. Guilty of a misdemeanor.

You should note that the bill doesn’t clearly say when the photos had to be taken. It’s a crime if just three conditions are met: that the subject of the picture is a “vulnerable elderly person,” that the person sharing it is a caregiver, and that the sharing is “without such person’s consent.”

So let’s say that on Veteran’s Day you share a photo of your disabled WW II father for whom you sometimes care. He’s 20 years old in that long-ago-taken pic and in uniform. You are proud of his service (as was he) as part of the Greatest Generation. Guilty of a misdemeanor.

And the same is true for sharing any other photo for such people taken during their lifetimes: From childhood, parties, weddings (including their own), vacations, anything you can think of.

Since New York has about 20 million people, do you appreciate the scale of how many misdemeanors are being created for sharing a photo of a disable loved one? Even if the Supreme Court did create a new category of restricted speech for this, the bill is both vague and over broad.

If this was a new category of restricted speech — you can’t post photos of incapacitated people without their consent — then the slippery slope also says it is OK to criminalize the posting of photos of other incapacitated people. Like kids. How many kid pictures are shared on social media?

The justification for this bill is that the posting of photos of disabled elderly people has become a problem:

Recent media reports have highlighted occurrences of a caretaker
taking unauthorized photographs or video recordings of a vulnerable
elderly person, sometimes in compromised positions. The photographs
are then posted on social media networks, or sent through multimedia
messages. Such action, dehumanize individuals and create an
environment that perpetuates a disrespectful and/or potentially
abusive attitude. Caretakers are required to provide care and services
in an environment that all individuals are treated as human beings.

How big is this problem that you think it justifies a change in the First Amendment that affects millions of people sharing loving photos of their elderly parents?

 

June 12th, 2018

NY Senate and Cyberbullying, Part 2

Last week I saw a tweet come into my feed from the NY Senate about the 56-0 passing of a cyberbullying bill. I quickly knocked out a post ripping it for two reasons: The complete lack of a definition and the fact that it violated the First Amendment.

That post was picked up by Scott Greenfield.  Then Greenfield’s post was seen by Tim Cushing at Techdirt. Which in turn was seen by Eugene Volokh. A little old school blogging as people added thoughts.

Now I have more to add: The first being a semi-correction that includes some  additional criticism of the Senate. But the second is some actual praise.

First, as Volokh pointed out, the bill was an amendment to the Education Law, and the Education Law has an existing definition of cyberbullying that is defined elsewhere. The first of the Senate’s failings was the lack of a reference to that definition section.

That lack of a reference, Greenfield points out today in likewise doing a second post on the subject, threw us both off as this isn’t the way New York usually drafts its statutes. As Greenfield notes:

Had it been the Senate’s intent to borrow the definition from another section of the Education Law to create its new crime, and, indeed, to establish the basic elements of the offense as would be minimally necessary for a crime to pass constitutional muster, there should have been a reference in the new crime to the definition upon which it relies. This is how New York laws are drafted, how a criminal offense is framed as to contain the bare minimum required to establish the elements of the offense.

It never occurred to Turk or me that there would be a New York law devoid of a definition or elements which would leave it to us to go searching the laws to figure out whether there was some definition, something to establish the elements of the offense, lurking in the darkness somewhere else. You don’t do that. You don’t create a crime and omit either the definition or an express reference back to the section setting forth the definition upon which the legislators relied.

This failure of form, hoping for an implicit reference to the definitions section that exists elsewhere, is the lesser of the two problems. Because that existing definition is so chock full of vagaries as to render it unconstitutional as a criminal statute. These are the provisions (as originally made into law for school administrative purposes, not criminal purposes):

the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that
(a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or
(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or
(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or
(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
Acts of harassment and bullying shall include, but not be limited to, those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.

So let’s say that Student A passes Student B in the hall. A smiles at B. Then A texts to B, “I’ll see you on the playground at lunch!”

Are they friends? Enemies? Was A flirting with B? Threatening B? Does A simply want to hang out with B? Should B be afraid? Enthralled? Bored to tears?

Would this conduct and speech “reasonably be expected to cause a student to fear for his or her physical safety?”

Would this conduct and speech, unreasonably and substantially interfere with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being?

Who the hell knows?

And if you can’t figure out whether something is a crime or not, then the law is vague. And it is likewise over broad as it will sweep up into its net perfectly innocent conduct and speech.

But there is another part to this posting. And that part is praise.

The praise is not for the bill, but for the Senate’s use of Twitter to quickly and cheaply disseminate information in an easily accessible form to the public.

For all the howling and caterwauling about how bad Twitter is, filled with bots, trolls, and those who think they will somehow “win” arguments and “own” their opponent, the one thing it is particularly good at is the rapid dissemination of information by public bodies.

That is how I easily found the bill’s Senate passage, and that is what allows us to publicly debate it’s merits.

So. The bill itself gets an F, but the Senate’s information distribution gets an A+.

 

 

December 19th, 2017

Cuomo Signs NY’s New Auto Insurance Law

Last night, New York’s Gov. Andrew Cuomo signed legislation that alters New York’s auto insurance law, and it’s a win-win deal for everybody.

While the law sounds uber-wonky, it’s quite important due to a fundamental misunderstanding of how auto insurance works by the general public.

Most folks think that the insurance coverage they choose  — let’s say a 250K limit — will protect them if they’re involved in a collision. But it doesn’t. That insurance only covers other people.

You, the injured driver, must pursue the guy that plowed into you at the intersection because he was checking his texts, through the limits of his insurance policy. And if his insurance policy is only, let’s say, the bare minimum 25K because his job is flipping burgers and he doesn’t really have a pot to piss in, then you with your fractured pelvis are, as we say in the law, shit out of luck.

But wait! There is one small hope for you, and that hope lies in your own policy provisions for getting involved in a collision with an uninsured or underinsured driver. That provision is known here in New York as Supplementary Uninsured/Underinsured Motorist (SUM) insurance.

The problem? The default on your policy was the state minimum, just 25K. And you can’t even collect that if have received the 25K from the guy that plowed into you.

Only a savvy person — or one with a conscientious insurance broker that informed him — would know that you could elect more SUM coverage. Most don’t, because most don’t know. My own legislator wasn’t aware of this whenI discussed this bill with her a few years ago, and found out only when her daughter was injured in a collision and got caught in this trap.

That law is the one that has now changed. Now the default choice is your SUM insurance matches the underlying coverage that you picked. So if you have a 250K policy you will have 250K SUM, and get as much protection for yourself as you are giving to others.

The cost is minimal and people can easily opt out. The thing is, those that are picking more than the minimum amount of coverage are the ones who understand that they likely have the most to lose. That’s why they bought the higher coverage in the first place.

When a bill becomes a law that has no losers attached to it, it’s a win-win all the way around.

I wrote about this back in June when it passed in the closing hours of the legislative session. The vote was 62-1 in the Senate and 104-6 in the Assembly.

People complain often about dysfunctional governments.  But when they get it right we should take notice with a little golf clap in their direction.

 

September 6th, 2017

New York Attempts Real Tort Reform

When I use this blog to write about tort reform, it’s often with scare quotes around the reform. Because reform means to improve something, not destroy it. When that phrase is commonly used, however, it’s used in conjunction with finding ways to close the courthouse doors to those who’ve been injured or wronged.

But that doesn’t mean that real tort reform isn’t taking place. Just this past year we saw three bills pass the New York Legislature by wide bipartisan margins, all currently awaiting the signature of Gov. Andrew Cuomo:

  1.  A subtle change in mandatory supplemental insurance if you are hit by an uninsured or underinsured vehicle that is likely to have a very dramatic positive effect for most drivers that carry more than the minimum insurance;
  2. A “date of discovery” rule for medical malpractice cases, so that the statute of limitations starts to run in cancer cases from the date the malpractice could reasonably have been discovered, not from the actual date of the malpractice; and
  3. A change regarding venue, so that cases can now be brought where a collision actually took place, even if none of the parties live in that county.

But there are more bills in the hopper, and by hopper I mean pending at various points in the vast legislative maze that needs to be navigated before any bill becomes law. Sam Senders, one of my readers who does structured settlements for Arcadia Settlements Group, put together a short list that he shared on LinkedIn, that you see below.

Perhaps if people started using the phrase tort reform properly it would shine a big, bold light on those that actually try to deform the civil justice system by slamming the courthouse doors closed on consumers.

Sam’s list of bills, with my editorial comments, that constitutes real tort reform:
—————–

1:  Admissibility of an Opposing Party’s Statement:  This bill modestly changes a hearsay rule by making admissible statements made by a company’s agent or employee. This change is supported by the State Courts of Superior Jurisdiction Committee and Tort Litigation Committee.

2: Apportionment of liability:  This bill comes into effect in tort cases where one defendant has settled, so that the remaining defendants must elect prior to trial whether to reduce liability by the amount of the settlement or by the amount of the equitable share of damages delegated to the settler in the verdict. Currently, the law is that a non-settling defendant gets a setoff from a settling defendant equal to the greater of the actual amount paid or the percentage of liability, with the determination made after verdict. This current practice actually acts to dissuade settlements, and that runs counter to the public policy of the state which is to encourage them.

3:  Expansion of economic and non-economic damages:  This long overdue bill adds to the types of damages that may be awarded to people for whose benefit a wrongful death action is brought, to include grief. Currently, New York is one of the few states in the nation that, by law, refuses to recognize grief as an element of damages in wrongful death cases.

4: Expansion of judgment creditor’s rights: This bill would add a new Section 1405 to the Civil Practice Law and Rules to expressly permit a plaintiff, as judgment creditor against a defendant, to recover and collect an unsatisfied judgment or portion of a judgment directly against a third-party defendant found liable for contribution or indemnification.

5:  Prohibits ex-parte interviews on personal injury and medical malpractice cases: Currently, defendants are permitted to interview a plaintiff’s treating physicians. Without a stenographer. Without the plaintiff or counsel being present or even notice being given to the plaintiff that the interview will occur. These interventions may, of course, impact treatment (many doctors want nothing do with lawyers and lawsuits) and they may also deeply affect privacy as defense lawyers may start asking questions about ailments wholly unrelated to the issues of a lawsuit. (Such as STDs, abortions, drug/alcohol issues, psychiatric treatment, etc.) This bill prohibits defense counsel from conducting such ex-parte interviews.

6:  Increases trial lawyer contingency fees on medical malpractice claims: Yeah, I know, supporting this looks very self-serving. But you know what? Ever since the Legislature dramatically cut attorney fees in medical malpractice cases in the ’80s, making them some of the lowest in the nation, many injured people can’t find lawyers. Many cases are simply too expensive and too time-consuming to warrant the risk given the crappy fees, effectively giving the medical community immunity for many acts of malpractice. This bill repeals the sliding scale fee for attorneys in medical, malpractice and brings the fees in line with other personal injury and wrongful death actions (one-third of the recovery).

There it is. Six bills. Covering real tort reform.

 

June 23rd, 2017

NY Leg Advances Change to “SUM” Legislation (Updated!)

The last two days I covered action in the New York Legislature to change the medical malpractice statute of limitations and make a modest change in where lawsuits can be brought (both of which still need the signature of the Governor).

Today, I cover a third piece of legislation, which while exceptionally important is virtually unknown to most. These posts come in a flurry because that’s how our Legislature works, passing bills  in a frenzy in the closing days of the annual January-June session.

This particular legislation refers to Supplementary Uninsured/Underinsured Motorist (SUM) insurance.

Stop!!! Don’t leave!!!  Trust me, while the issue sounds boring, it could be the difference between bankruptcy or not to anyone seriously injured.

In New York, we have particularly crappy minimum levels of insurance, known as 25/50 on non-commercial vehicles. That means that, if you are injured by someone with such minimal insurance, no matter how badly, the most you can obtain from that insurance policy is $25,000. (The 50 refers to the aggregate of all claims from the collision.)

And if badly injured, you can’t work and pay your bills. Which is why bankruptcy is not uncommon amongst those victimized. Unless you protect yourself.

Unbeknownst to most folks, there may be a second policy at play — your own — if you own a car. This is the SUM insurance if the car that plowed into you and broke your back has that minimal insurance.

Now here’s the catch, and the reason I write: The default on the SUM policies is a mere 25K. So even if you are a high earner, bringing home the family bacon, and have a $500K bodily injury policy of  your own, it won’t matter if you don’t read the fine print. Because that $500K is only to protect the person that you injure. It isn’t for yourself.

Yeah, it’s in the fine print. Most don’t know about it. Even one legislator I spoke to a couple of years ago was so unaware of it that, when her child was injured, was stuck with that minimal policy. She had no idea.

And, before I get to the legislative fix, one more point. That SUM policy only comes into play if your own policy is larger than the car that hit you. So, in other words, if the car that ran the light and clobbered you had a 25K policy, and you have a 25K SUM policy, you don’t get an extra 25K, because you would only be entitled to the difference between the two.

OK, now on to the fix. The New York Senate passed a bill (S5644A) in the waning hours of the legislative session to change the default from 25K SUM insurance for yourself to be the same as the amount of bodily injury coverage you have selected to protect others.

So if you have a 500K bodily injury policy, your default would be 500K SUM. You can, of course, decline it if you want. But most people who feel the need to buy insurance at higher levels aren’t the types of people who generally would decline.

This bill passed, as had the medical malpractice bill and the venue bill, with wide bipartisan support. And by wide I mean 62 out of 63 votes.

Unfortunately, the legislature adjourned for the session as the Senate passage came too late for the Assembly to vote. It will only come to the Assembly floor if they are called back into session, a possibility given that there is a large, unresolved issue of mayoral control of NYC schools.

Otherwise, it is wait till next year.

In the meantime, if you are renewing your auto policy, look for that part about SUM coverage and make sure you get as much as you can. It is, relatively speaking, dirt cheap, which is why your broker may not even bother to mention it to you. But it can make all the difference in your life if some underinsured car clobbers you.

And one day I’ll come back to discuss our ridiculously low 25/50 auto insurance policies.

Update (6/29/17) – Gov. Cuomo called the Legislature back to Albany for a special session, to deal with the issue of mayoral schools. And any other lingering issues.

So late last night, by a vote of 104-6, the Assembly joined the Senate in passing the SUM bill. It goes now to the Governor for signature.

This is a very big deal, as all too often we see cases of people with decent insurance getting hit by cars with little insurance, and the victims then find out to their own dismay that they could have easily and cheaply covered themselves for this event, but didn’t. Now that coverage will be the default.