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May 2010 Archives

Your Auto Insurance - Full Tort / Limited Tort

When buying auto insurance everyone wants to protect themselves and their families and at the same time be as economical as they can.  The first thing you need to remember is that an auto insurance policy is not one single contract but contains main different separate and distinct coverages.  The decision that you make on each one of your coverages could have a significant consequence when you need to use them.  I am often asked by family, friends and clients to advise them on what types of coverage to purchase.  There are certain areas of coverage which I believe are more important than others.  My goal in this series of blogs is to touch on each of the areas and their importance.  As a lawyer who has been handling auto insurance accident cases for nearly thirty years I hope some of my insights will be helpful. Limited Tort vs. Full Tort: What is a "tort"?  The word tort is not a word that we use in our everyday vocabulary.  It is an old English and French term derived from mid evil Latin meaning, "damage, injury or a wrongful act done willingly, negligently..." It's context in an automobile policy written in Pennsylvania becomes important should you suffer a personal injury from an automobile accident that occurs in Pennsylvania.  Let me begin with a little (very little) background: by the year 1990 auto insurance premiums throughout the state had risen dramatically especially in big cities like Philadelphia.  In addition, Pennsylvania's automobile insurance laws were in need of a good overhaul and so we ended up with the Financial Responsibility Act of 1990 which is the current law governing automobile insurance in Pennsylvania. In order to make auto insurance more affordable our legislature created a scheme allowing its citizens to select a "full tort" or "limited tort" option.  To keep it short and simple selection of the full tort option allows an injured party to make a claim and pursue a case for injury regardless of how "serious" it may be.  Conversely, selection of the "limited tort" option does exactly that, limits an injured party to making a claim only if they are seriously injured.  The scheme provides that those selecting the "limited tort" option would get a break on their premiums (between 10-20%).  So, if you selected limited tort you saved a few bucks, but you gave up an important right for you and possibly all members of your household.  In order to make a claim for personal injury you will be required to show that you are "seriously injured".  These words are what lawyers call a "term of art" meaning it is subject to differences of opinion.  The law tries to define what a serious injury is, but our courts have struggled for almost twenty years to clarify it.  Huh? Twenty years and no precise  formula?  Exactly. Its nice to save a few dollars but the consequences can be hard to except.  One area which causes the most difficulties with this scheme relates to soft tissue injury.  Lingering, chronic soft tissue injury can be as serious or more serious than accident injuries requiring surgery or involving broken bones  -  but they are often difficult to prove.  What should I do?  Check with your insurance agent and look at the differences in your premium savings.  Here in the Lehigh Valley you may be surprised to see that the savings is not nearly as large as the risk that you may incur if someone in your family is injured.  By the way, selecting "limited tort" never prevents you from getting reimbursed for out of pocket damages like property damage and lost wages.  Be secure and selecta full tort if at all possible, and remember the best way to avoid serious injury is to wear your seatbelt at all times. Dennis F Feeley

16th Annual Best Of The Best Awards Made Me Cry.

It's not the purpose of this blog to shamelessly promote Cohen and Feeley, but Saturday's Best of the Best Scholarship awards breakfast  made me cry. For 16 years Cohen & Feeley have promoted scholarship, community service and extra curricular participation by honoring one senior highschool student from each of our 27 area high schools. Each student is presented a monetary award and a contribution is made by Cohen & Feeley to the charity of their choice. Three exceptional students are chosen as the Best of the Best and given an additional monetary award. The details of the award can be found on our web site www.cohenfeeley.com and our Facebook page where bios and photos of all the winners can be seen. So why do I cry each year during these awards? As a parent with two grown children whom my wife and I adore, an event like Saturday's renews my faith and hope for all of us. This is not a revelation but the world right now is not a very positive place. No need for me to remind you of all the depressing details - It's hard to escape. Something about a room filled with a hundred people who are all there to applaud the excellence and hard work of 27 young women and men is just so exhilarating that for a brief moment I forget some of those bad things. When you read about the accomplishments of these kids you are overwhelmed. If you think I am just getting old and mushy just go to our web page or Facebook page and read for yourself. These kids are our future, and if their accomplishments in high school are any gauge of the impact they will have on our future then we just might make it. Congratulations to all of these kids and may they have the success to which they are all entitled. Dennis F Feeley PS -  Team Capital Bank has been our partner for the last three years and without them our resources would be scarcer. We appreciate all your help.

Recent Supreme Court Opinions Show Political Leanings

From time to time Supreme Court decisions involving the First Amendment arise and should be appropriate for this blog.  In the last several months two Supreme Court decisions have caused constitutional scholars to consider the Court's current trend in interpreting the first Amendment. The first case was decided in the fall of 2009 in the matter of  Citizens United vs. Federal Election Commission.  This case extended First Amendment rights to corporations, allowing them to spend unlimited amounts of money on political campaign advertising. The second case,  Salazar vs. Bouno  (Mohave Cross case), abrogated the First Amendment distinction between church and state.  In both of these cases the Supreme Court through the authorship of Justice Kennedy (the supposed swing vote on the Court) manufactured the cases in such a way in order to allow them to reach their predetermined conclusions.  I think we can only look for more of the same from the "Fabulous Five" (Justices Kennedy, Roberts, Alito, Scalia and Thomas).   In  Citizens United, Justice Kennedy writing for the majority ruled that corporations are no longer restricted in the role they may play in political campaign advertising.  The case found its way to the Supreme Court as a result of an opinion from the lower court declaring that Citizens United (a political action committee PAC) would not be permitted to run a certain movie called "Hillary: The Movie" on Direct TV, aimed at discrediting Hillary Clinton then a presidential candidate.  The lower court ruled that airing of this film within 30 days of the primary election was a violation of the Federal Election Campaign law of 1971, and a subsequent revision in the form of the McCain Feingold Amendment prohibiting corporations from trying to influence a campaign with their immense resources.   It is important to note that there was never an issue regarding running the film other than the law said that it could not be run within 30 days of a primary or 60 days of a general election.  So, the only issue before the court was whether the lower court had violated United's first amendment rights by placing limitation on when this film could be aired. The Supremes overruled the lower court and ruled that corporate funding of independent political broadcast in candidate elections cannot be limited under the First Amendment.  The court found that corporations should not be treated any differently than individuals when it comes to making contributions to political campaigns.  That's right -  people and corporations must be treated the same.  Flesh and blood, breathing, eating people like you and I  are no different then let's say, Goldman Sachs, Halliburton or any other multi-billion corporation with resources to influence the outcome of an important political campaign.  Have you already noticed the increase in the number of TV spots for the upcoming primary?  You haven't seen anything yet - wait till the summer and see how much political advertising occurs and the nature of its content.  I cannot imagine that our founding fathers, the guys who brought us the American Revolution; Ben Franklin, John Adams, and James Madison could have ever imagined the First Amendment would be used by big and powerfully funded business interests like the corporations who financed Citizen's United  to   influence a campaign. Justice Stevens writing for the dissenters said, this ruling "threatens to undermine the integrity of elected institutions across the Nation.  The path it has taken to reach its outcome will, I fear, do damage to this institution".  He also said that the Court took it upon themselves to find that the McCain Feingold law was unconstitutional.  This issue was not before the court.  The parties had agreed that the constitutionality of the McCain Feingold law was not up for disposition, only the specifics of this particular case.  By so doing Justice Stevens said, they "changed the case to give themselves an opportunity to change the law".  Stevens concluded his dissent with: "At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized the need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt" (original corporate campaign limitations date back to 1907). So, the Supremes decided to take on the constitutionality of the entire law rather than simply ruling on whether or not this instance, the airing of Hillary, was a violation of Citizen United's First Amendment rights. You have to ask yourself what the "Fabulous Five" were seeking to accomplish other than to allow the unbridled and unlimited influence of major corporations on a political campaign. Now, fast forward ahead to two weeks ago when Justice Kennedy once again "changed the case to give themselves the opportunity to change the law".  In 1934 the VFW placed a cross at a place called Sunrise Rock on federal land in the Mojave National Preserve to honor American soldiers who died in World War I.  Bouno, a regular visitor to the Preserve, and who was apparently offended by the presence of the Christian cross, brought a civil rights action against the government based on the First Amendment's Establishment Clause which requires separation between state and church.  A Christian cross on US soil crosses the line.  Bouno won.  The court agreed that the presence of the cross was a violation of the First Amendments' Establishment Clause. Now here's where things start to get weird.  I don't disagree with the Courts literal interpretation of this clause.  I do have an issue with what happens next.  The government (Department Of Interior), disagreed with the lower court and took an appeal, but before the appeal was heard Congress decided to get involved.  Thinking they were clever, they took the land upon which the cross resided and gave it to the VFW in exchange for a different piece of land close by.  Now the cross is on private property and the Establishment Clause of the First Amendment is no longer an issue - right?  Wrong, guess who files another suit.  Yes, Buono.  This time he claims that what Congress did was just subterfuge.  The transfer of the land was just another violation.  To make a longer story shorter both lower courts agreed.  So now the stage is set for Kennedy and company to make their appearance in this already mishandled fiasco. It became Kennedy's cross to bear.  The Establishment Clause prohibition could be overcome if we make the cross secular and non religious.  Good thinking.  Let's just ignore 2000 years of symbolism and make the cross upon which the whole of Christianity revolves non Christian.  That is exactly what he did.  He "changed the case" so he could "change the law".  His reasoning was as follows.  "Placement of the cross on federal land by private persons was not an attempt to set the state's imprimatur on a particular creed.  Rather, the intent was simply to honor fallen soldiers." And so, The Supreme Court has ruled that a cross is no longer a cross.  Oh, William Shakespeare where are you when we need you.  A cross by any definition is just a marker and nothing more. Now don't get me wrong.  I agree with the outcome.  The cross should stay but the analysis is just wrong.  In law school they taught us that bad facts make bad law.  Well changing the facts to suit the outcome is not the way it's supposed to work.  The Supremes are supposed to be the brightest legal minds in the country.  Why do they have to take such a circuitous route?  Was there a more direct way?  What kind of doors does this open?  What will be next?  Maybe prayer in schools will be reconsidered and found to mean nothing more than the way a school begins its daily routine and has nothing to do with religion. Now back to the original question. Is the Court going too far and overreaching when it messes with the facts and case to get a result they feel needs addressing?  Are they changing the constitution to fit some agenda?  Is the constitution a living document that should be molded to fit the times?  If so, then should 5 people (Kennedy, Roberts, Alito, Scalio and Thomas) be the deciders? Two important cases which stand to have lasting influence have been decided on less than solid legal thinking.  Maybe the Constitution is, as many say, a living document that needs to reflect the times.  I am willing to bet that James Madison who is considered by most legal scholars as the architect of the Bill of Rights did not see this coming.  How could he?  The Bill of Rights was adopted in 1791 and the case of Marbury vs. Madison, which was the first case involving a constitutional challenge and which established the Supreme Court as the final authority on this matter did not happen until 1803. I wonder what he would say?  Since my first draft of this post President Obama has nominated Elena Kagan to replace the retiring Justice Stevens. Kagan in her capacity as Solicitor General presented the government's case at oral argument in Citizens United. Her first and only argument in the Supreme Court and probably her last. Next time she may be on the other side of the bench. Small world. Dennis F Feeley

Congress Considers New Laws To Make Cars Safer

The Toyota recalls may have a silver lining when it comes to making all new cars safer. One of consumers best allies, Henry Waxman, who is the Chairman of the House Energy and Commerce Committee along with John Rockefeller who is the head of the Senate Commerce Committee have prepared bills , according to the New York Times, that will impose new safety requirements on all new vehicles. Some of the proposed changes would require a "black box" which records data regarding vehicle crashes. Also being considered is a brake override system which would prevent the recent acceleration incidents involving Toyotas.  The committees reported that increased advances in science and technology have made cars much more sophisticated and complex resulting in new and different safety issues which must be addressed. Stay tuned and we will continue to keep you posted as these proposals move through the political process. Dennis F Feeley

abuse cases on the increase -- what do you think is fair?

Over the last several months the news media has been filled with disturbing cases of child abuse in churches and with some of our most trusted civic organizations. Child abuse is nothing new but the rate at which these cases are being reported is very alarming.  Last week a jury in Oregon entered a punitive damage verdict against the Boy Scouts in the amount of $18.5 million dollars. This in addition to a $1.4 million dollar compensatory award. The jury found that a Boy Scout counselor had admitted to molesting 17 boys,  and that the organization continued to allow him to have contact with young men including the plaintiff Kerry Lewis. Recently, the Catholic Church has been under fire, it seems throughout the world, for ignoring priests with records of sexual abuse while they continued to prey on the young and innocent.  What is perhaps most disturbing about these acts of abuse is that they are occurring in the institutions which we have always regarded as safe and nurturing environments for our children --  our most precious natural resource.  So, it is no surprise that violations of this sacred trust results in visceral anger.  It not only shocks us but is completely bewildering. We feel betrayed,  like an act of treason has been committed upon us and that the traitors should be - well - hung. It doesn't shock our consciousness when a jury punishes an institution like the Boy Scouts with such a large verdict. Does it send a message? I think - yes -  but you be the judge and the jury. What do you think is fair? The law in Pa. until rather recently has imposed a very limited Statute of Limitations on sexual abuse cases requiring that they be filed not later than the 20th birthday for acts committed before the child turns 18. Our current law, effective since 2002, permits a lawsuit to be filed not later than the 30th birthday for sexual abuse committed before the child turns 18. This means that the child gets a 10 year extension of the Statute of Limitations, as long as the first act of abuse occurred before they turned 18. We know that acts of sexual abuse often remain repressed for many years. All too often, because of guilt or fear, they are never exposed. Some states, such as Massachusetts are more lenient when it comes to time limitations on abuse cases. Unless the law changes again in Pa. we are stuck with the existing SOL.  My instinct and experience tells me that there are thousands of cases that never see the light of a courtroom or where the victim never gets the healing process that they so deserve. Dennis F Feeley

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