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Personal Injury
- New York state man recovers $200K for fingers lost to lawn mower
- Eight Powerful Reasons to Hire a Local Attorney
- Court Allows Claims For Emotional Distress After Alleged Breach Of Contract To Continue
- Wal-Mart Limits Subrogation Rights Against Workers
- Pennsylvania Worker recovers for fall from ladder bought at Home Depot
Premises Liability: The Slip and Fall
- NYC to pay $2.75M for softball accident in school gym class
- New case law on slilp and fall on icey sidewalks owned by a City
- Worker who lost leg in construction accident receives $13M
- Boy blinded in ATV rollover gets $6M settlement
- ELMIRA ATTORNEY CONTINUES TO INVESTIGATE OUTBREAK OF LEGIONNAIRES’ DISEASE AT THE FLANNERY TOWERS
Workers' Compensation
- New York Times article on biased "Independant" Medical Examiners
- No Work Jobs
- Prison Guard receives settlement in MRSA case
- New blog post at the Pa Injury Law blog about the effect Bush had on OSHA
- New post on the Pa Work Injury Law Blog about what to do when you're laid off
Vehicle and Automobile Accidents
- Pennsylvania Car Accident Plaintiff's award of $400,000 Upheld On Appeal
- An unsafe intersection in Athens Township?
- Pennsylvania Superior Court Case Quashing Underinsured Motorist Carrier Appeal
- Pa. Superior Court Allows UIM And Bad Faith To Proceed At Same Time
- People injured in Springfield Township, Bradford County automobile crash
General
- Insurance company denials of benefits in Pennsylvania and New York
- CALL YOUR MEMBER OF CONGRESS AND URGE SUPPORT FOR THE ARBITRATION FAIRNESS ACT OF 2009
- Another ATV Death
- Bradford County, Pennsylvania has a new website
- No conflict of interest between Bradford County, Pennsylvania's new Judge and new District Attorney, despite them cousins
Legal News
Judge campaign candidates speak at dinner in Towanda
Judge Beirne unopposed in local race
Attorney General Tom Corbett to visit Bradford County
Beirne will run for full term as judge
Bradford County Employers Laying Off Workers
Death Benefits Not Mandatory for PA Car Insurance
Bradford County: Judge Beirne presiding
Pennsylvania Senate confirms Beirne as Bradford County judge
Legal Library
Personal Injury
- Questions for Your Doctor In Personal Injury Cases
- Traumatic Brain Injury: By The [Staggering] Numbers
- What is an Independent Medical Examination?
- Common Questions About the Legal Process
- The Wrongful Death Of A Child - Part Two
Premises Liability: The Slip and Fall
- Cracked, Broken or Irregular Sidewalks Causing a Fall
- Dog Bites
- If You Have Been Bitten or Attacked by a Dog, Then You Need to Read This Article
- New Pennsylvania Superior Court Case on Dog Attack
- Lead Poisoning Threatens Pregnant Women
Workers' Compensation
- New York Times article on Independent Medical Exams
- Response to Time Magazine Article: "Doctor's View: Can Health Coverage Cause Pain?"
- Specific Loss Benefits
- Reimbursement for Travel Expenes in Pennsylvania Workers' Compensation Cases
- Flow of Pennsylvania Workers' Compensation Claim Documents Prior To Litigation
Vehicle and Automobile Accidents
- Reducing The Impact of A Whiplash Injury
- Car Accident Injuries: Neck Pain
- Multi-Truck Accident in Susquehanna County Results in Hospitalization
- Repeat Offender Facing DUI Charges After Accident Lands Passenger in Hospital
- Driver Strikes Mother and Daughter in School Crossing Zone
Newsletters
General
Personal Injury
Dough machine maker settles with baker for arm and hand injuries
The maker of a dough machine that severely injured a baker's arm and hand agreed to pay $400,000. Roberto Torres was operating an automatic dough-dividing machine at Lucca's Bakery when it seized his right arm and broke bones from his elbow to his hand. His attorney argued failure to warn and failure to provide proper safeguards. Oshiriki claimed that Torres ignored a warning label advising users to keep hands and feet clear. Torres underwent several surgeries to repair his arm and hand. He also sued the bakery and the machine's distributor, but they were granted summary judgment.
Torres v. Lucca's Bakery
To get the full report on this, go to VerdictSearch.com.Why are confidentiality clauses in personal injury settlements dangerous?
Settlement agreements and releases in personal injury cases are increasingly containing confidentiality provisions that may potentially result in adverse tax consequences to the unwary.
The little known tax court decision of Amos v. Commissioner, T.C. Memo 2003-329 (December 1, 2003), is a cautionary tale for Plaintiff's counsel. The relevant facts of the Amos case are condensed as follows:
- Professional athlete, Dennis Rodman, kicked a photographer in the groin upon falling out of bounds during an NBA game.
- The photographer commenced a lawsuit, which eventually settled for the sum of $200,000.00.
- A settlement agreement was executed between the parties which contained a confidentiality clause.
- The photographer treated the entire amount of the settlement as compensation for a personal physical injury under IRC Sec. 104(a)(2) and excluded same as income.
- Possibly as a result of the publicity of the incident, the photographer's income tax return was audited. The IRS sought to treat the entire sum of $200,000.00 as taxable compensation, reasoning that the settlement amount was motivated by a desire for confidentiality, as opposed to compensation for a personal physical injury.
The Tax Court analyzed the facts as follows:
- A taxpayer has the burden of proving that damages are on account of personal physical injuries or sickness, under IRC Sec. 104(a)(2), citing Commissioner v Schleir, 515 U.S. 323, 328 (1995), and United States v. Burke, 504 U.S. 229, 248 (1992).
- "The nature of the claim forming the basis for the settlement controls whether such damages are excludable under IRC Sec. 104 (a)(2)." Burke, supra, 504 U.S. at 237 [emphasis added].
- "The intent of the payor is critical" and "the character of the settlement payment hinges ultimately on the dominant reason of the payor in making the payment." Knuckles v. Commissioner, 349 F.2d 610, 613 (10th Cir. 1995).
The Court's decision was to treat 60% of the damages as compensation for the photographer's physical injuries and 40% as payment for confidentiality. Thus, 40% of the damages were taxable. The impact of the ruling was an acknowledgment that despite the dominant reason Mr. Rodman paid the photographer was to compensate him for his physical injuries, the court still held that a portion of the award represented taxable damages. The holding in Amos provides justification for the IRS to treat all personal injury damage awards as part taxable and part non-taxable if the settlement agreement contains a confidentiality provision.
Therefore, counsel must be cautious during settlement negotiations and insist on striking such confidentiality provisions from personal injury settlements that fall within the purview of IRC Sec. 104(a)(2). If confidentiality is non-negotiable, any such clause should be drafted so as to contain express language that confidentiality is mutually beneficial to both parties and that no consideration is being paid or intended for that purpose.
Also be sure to strike the phase "in settlement of a doubtful and dubious claim" which is frequently inserted into settlement agreements. In the worst case scenario, the settlement agreement and/or release needs to be clear as to the percentage of the total settlement that is being allocated to confidentiality and the percentage allocated as compensation for personal physical injury. It could thus be argued that additional consideration must be paid to offset any such potential tax implications for such apportionment.
Here is a .pdf of the Amos case if you want to review the specific language of the tax court.
Premises Liability: The Slip and Fall
Scalded tenant gets $2M from landlord
A Manhattan building owner and its managing agents agreed to pay a total of $2 million to a tenant who was scalded when her shower's hot-water knob broke in her hand. The injured woman, Ana Feliz, 83 at the time of the July 2006 incident, claimed that the building's managers were aware that the knob was loose, but that they neglected to perform the repair. As a result of the accident, Feliz sustained first- and second-degree burns of more than 10 percent of her body. The defendants contended that the knob had been replaced some 15 months prior to the incident and that Feliz had not reported any further problems. With a trial pending, the parties proceeded to mediation, where a settlement was struck.
Feliz v. Property Resources Corp
To get the full report on this case, go to VerdictSearch.com.Vehicle and Automobile Accidents
Girl paralyzed by drunken Giants fan gets $23.5 million in settlement with beer vendor
The New Jersey Law Journal (12/3, Gottlieb) reported, "The beer refreshment vendor at Giants Stadium agreed to pay $23.5 million to settle the case of a girl paralyzed in a crash with a drunken football fan under an 18-month-old secret agreement that an appeals court unsealed Wednesday at the request of a public advocacy group."
Appeals court unseals settlement terms. The New Jersey Law Journal (12/4, Gottlieb) reports that the Appellate Division held "that a Bergen County judge erred when he sealed all records of the June 2007 settlement and subsequent proceedings to protect the privacy of the girl, Antonia Verni." The rationale for keeping the records sealed, which was to avoid abuse of the funds by the victim's father, "was too weak to overcome the presumption of openness of court proceedings and the public's right to know about a highly publicized case with significant issues, the appeals court said Wednesday." The Journal adds, "The ruling was a victory for Public Citizen, a Washington advocacy group associated with Ralph Nader that seeks to intervene in cases around the country when court records are kept from the public."
The AP (12/4, Porter) reports a contrasting settlement amount, saying that Aramark Corp. "has settled a lawsuit by the family of a girl paralyzed in a car accident caused by a drunken New York Giants fan for $26 million."
New case law on signing releases in complex cases
On July 7, in Ford Motor Company v. Buseman, the Superior Court reversed a trial court order denying a Motion for Summary Judgment in a products liability case resulting from a tragic car accident in which a Ford Explorer rolled over.
A federal lawsuit was filed against the driver and settled with two insurance companies for general releases. A separate state action was filed against Ford Motor for defective design. After the federal lawsuit was settled, Ford filed a Motion for Summary Judgment arguing that the execution of broad releases in the federal lawsuit that released "all other firms, person," etc. released the parties to the state suit.
The Superior Court holds that (at most) this is a unilateral mistake and the releases (without any limitations or indications that the state lawsuit parties were not released) were broad enough to effectively release the product defendants. The trial court was reversed.
See the Court's full opinion here.
Workers' Compensation
Prison Guard receives settlement in MRSA case
COLLEGEVILLE — A borough woman who claimed she contracted a staph infection which caused facial scarring while working as a prison guard at Graterford Prison in 2003 recently settled for $226,000.According to the claim Snyder filed, she woke on Dec. 30, 2003, to find her face significantly swollen for no apparent reason. After consulting her primary health-care provider, she was referred to another doctor who cut her face to drain the swelling. This treatment, which was administered multiple times on multiple areas of Snyder's face, left her with facial scarring.
Schrom said Snyder has had "probably 40 infections that she's had over the course of time," that resulted in "40 separate outbreaks" on her skin.
Snyder's claim indicates she was diagnosed with MRSA on June 28, 2005 by an open wound specialist.
The infectious disease doctor who treated Snyder stated that there was "no question in my mind that Ms. Snyder acquired this bacterial strain while working at the prison," according to Snyder's claim.
Schrom said the prison initially told his client that they did not believe she had MRSA, rather acne.
To see the full story and photos of the facial scarring, go here.
Conveyor's designer pays $1.4M to man whose arm was snared
A conveyor system's designer agreed to pay $1.4 million to a man who sustained severe injuries of an arm that became caught in the system's moving belt. The case was filed in New York.
Steven Raynor sued New Berlin, Wis.-based HK Systems Inc., alleging that the company negligently failed to shield a 5-inch-wide opening that allowed access to the underside of its conveyor system's belt. While reaching beneath the conveyor, Raynor's left arm entered that opening and became snared by the belt.
Some 10 minutes elapsed before a co-worker arrived and freed Raynor's arm, which was broken in two places. The defense argued that Raynor's employer had removed a designer-installed shield that protected the opening, but it ultimately agreed to a pretrial settlement.
To see the full report on this case, go to VerdictSearch.com.
General
It pays for defendants to settle quickly and easily
A study of court settlements of personal injury lawsuits against businesses estimated companies could save an average of $114,000 per claim, or $670,000 for severe injuries, by promptly settling cases instead of fighting them in court.
See the full story at Daily report (free registration required).
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FAQs
Personal Injury
- How long is all this going to take?
- The insurance company offered me a settlement almost immediately after my serious accident. Should I accept it?
- The insurance company says that I don’t need a lawyer to settle this. What do you think?
- What is my case worth?
- What factors determine who is at fault in a car accident?
Workers' Compensation
- What happens if I return to a modified duty job and then I am laid off?
- If I am unable to return to the type of work I did before I was injured, what happens?
- If I am injured on the job can I choose the doctor who treats me?
- Should an injured worker apply for unemployment benefits?
- What medical benefits does the Act provide to a worker after they have sustained an on-the-job injury?
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