Andrew DeWeese

When opposing counsel is late serving discovery responses, I call and offer an extension (even for late requests for admissions). I recently received a proposal for settlement which was surprisingly low and assumed the other side misunderstood the amount of insurance coverage (which they did). Now some of you may think I’m not being a zealous advocate. It’s their mistake. I have an opening. Take it. Well, this isn’t a street brawl (I’ve been in way too many of those to assure you litigation is not a street brawl). We reap what we sow in this dog eat dog world, and those who live by the sword eventually perish by it. And what lawyers who want to exercise every advantage don’t realize is that it leads to a lot of needless, time-consuming, expensive communications and motion practice. So if you want to be the jerk that takes no prisoners, rest assured, it will come back to you. Just like if you give others second chances, you’ll get second chances too. And don’t we all need that?

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In Colorado federal court, 48% of civil verdicts were insurance-coverage coverages. 1. If nearly half of tried cases are insurance cases, then there is a disconnect between the claims side of insurers and their lawyers and policyholders. It's not entirely clear to me that pushing that high a percentage of cases through verdict helps the insurance industry or policyholder/plaintiffs' bar. Such a high amount of disputes certainly undermines consumer confidence in their future purchase of insurance. 2. Sometimes you do need to try cases. And policyholders should push to trial (and be ready to do so). The question is whether some portion of these cases in Colorado were necessary (and who pays the price). I got schooled (and learned my lesson) when I asked for a 4-week jury trial, and effectively the judge impressed upon me that we were imprisoning members of the community for a commercial dispute over money (note it was about $60 million) and that two-weeks was enough of an imposition. 3. Though it's certainly a separate issue, more generally I question whether there should be diversity jurisdiction at all or at least in insurance cases (having been persuaded in part by revising Justice Frankfurter's opinions in Lumbermen's v. Elbert, 348 US 48, 53-60 (1954) (concurring opinion); National Mut Ins. v. Tidewater Transfer, 337 US 582, 650-51 (1949) (dissenting)). Here on LinkedIn, I previously noted this as well as the "prudential" rule seemingly employed by many federal courts to simply not entertain insurance cases. #insurancecoverage #insurancetrial

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Settling the Score: Classifying Settlement Payments as Disability Income Sometimes your disability policy carrier will deny your claim, and you’ll need to file suit. You may receive a settlement from that lawsuit, but how will it be classified? It could be taxable or nontaxable disability insurance proceeds, or it could be for something else. The tax implications hinge on the nature of the payment. The critical question is: 'In lieu of what were the damages awarded?' Courts put on their detective hats, examining every piece of the puzzle—from the back-and-forth of settlement negotiations to the detailed terms inked in the settlement agreement, and the initial claims laid out in the lawsuit. If the settlement flows from a disability policy and is meant to compensate for personal injuries or sickness, it might be classified as a disability payment, potentially altering its tax treatment. #kimandrosadollp #taxlawyer #tax #disability #disabilityinsurance

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Wrongful death claims are always complex and emotional. Losing a loved one is devastating. When it happens due to negligence, it's even harder. Navigating a wrongful death claim can be overwhelming for families. In California, wrongful death claims arise when someone dies due to another's actions. These cases involve proving negligence or intentional harm. The plaintiff must show that the defendant's actions directly caused the death. Families can seek compensation for various damages. These include funeral expenses, lost income, and emotional distress. The process requires gathering evidence, filing the claim, and possibly going to trial. As an experienced paralegal, I assist attorneys in managing these intricate cases. I organize vital documents, conduct thorough research, and help build strong arguments. My support allows attorneys to focus on representing their clients effectively. Let's collaborate to navigate these challenging cases and seek justice. Contact me to learn how I can assist your firm with wrongful death claims.

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It would be disingenuous for me not to post about the 60 Minutes piece last night. After watching the report, there is only one conclusion to be reached -- what happened to the homeowner in the report was wrong. If their insurance policy covered wind damage, and I have to assume it did, the homeowners clearly had more than $15k in damage. I also agree that it is wrong for an insurer to make factual changes to a field adjuster’s estimate, not consult the field adjuster about the changes, and leave the field adjuster’s name on it. I cant reach any other conclusions. But let’s make sure we keep this report in perspective…… 1. An insurer has the right to modify a field adjuster’s estimate and apply policy coverage to that estimate when the changes relate to the application of policy coverage. That is proper. However, when such changes are made, the name of the adjuster who made the changes should be on the revised estimate. 2. An insurer has the right to make factual changes to a field adjuster’s estimate based on mistakes or disagreements with the field adjuster’s position. But again, any such changes must be properly documented, the field adjuster should be involved in the discussion, and the name of whoever made the changes should be on the revised estimate. 3. Let’s not jump to the conclusion, as I have already seen on some LinkedIn and blog posts, that what we saw last night is widespread and systemic in the insurance industry. It isn’t. I have reviewed 1000’s of claim files. I have only seen this happen in one file. So I cannot accept that this is a common industry practice. I am always careful not to condemn all contractors, PAs, or policyholder attorneys when I call out improper conduct by some bad actors. The same restraint should apply here. 4. The “fraud” word was used a lot in the report. Perhaps what happened there was fraud. I’m sure the talented lawyers representing the homeowners will fully develop that argument if evidence of fraud is present. But let’s all be careful not to label every claim measure dispute as fraud. Fraud is an intentional material misrepresentation of fact. Which is much much more than just an honest disagreement as to the measure of a claim. I could also use the fraud word in describing the contractor or public adjuster’s position in a large percentage of the matters that cross my desk. But I don’t. And I have only filed fraud lawsuits against policyholders and their representatives in two matters. Out of thousands. So let’s be judicious in our use of the fraud word. All bad conduct in the insurance claims process should be called out and addressed. By either side. Hopefully the 60 Minutes piece was a wake-up call to the insurance company involved in the report and the other Florida regional insurers also alleged to have engaged in such conduct. But it is incorrect to call the altering of estimates a “widespread” or “systemic” issue in the insurance industry. It is not.

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Yesterday, the California Supreme Court decided John's Grill v. Hartford, a COVID-related insurance case in which the court, as Law360 put it, "reversed an appellate court's finding that a virus endorsement rendered a restaurant's policy illusory in a coverage dispute with a Hartford entity over pandemic-related losses, instead ruling that the endorsement clearly provides coverage 'only if the virus results from certain specified causes of loss.'" COVID-related litigation has taken many curious twists and turns. The COVID-related cases I have mediated have come in many shapes and sizes. Some business interruption/insurance cases have involved whether lockdown orders from multiple government jurisdictions constitute multiple occurrences, or only one occurence because there was only one pandemic. Others have involved issues as diverse as whether lockdown orders trigger "force majeure" clauses in commercial leases, which can differ widely and require close textual and factual analysis. What's your experience? What COVID-related cases are still going strong in your practice? What's next on the horizon for COVID-related litigation, in or out of the business interruption/insurance world?

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My practice area has a VERY heavy focus on writing. Everything from the day the claimant files a claim with the insurance company up through filing an appeal with the insurance company and everything involved in federal court requires a lot of time spent writing. So being effective and prolific is a must, and it's important to find ways to overcome writers block. My best tip for overcoming writers block is to write out of order. Instead of staring at a blank page, I’ll write different sections of the brief or appeal and then come back to the introduction or conclusion. By that point, it’s usually easier to write because you’ve already got the main points down and you can flesh out the rest.

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Personal Injury Attorneys vs Insurance Defense Attorneys The constant plaintiff vs. defense war on LinkedIn gets old fast. There are the plaintiff's attorneys who celebrate their wins and write about how an insurance company only offered a nominal amount to settle a case and the jury returned a verdict of $10,000,000+. The defense attorneys see that and rail against fake injuries and nuclear verdicts. They then celebrate their wins and write about cases with horrific injuries where their client was at fault but they were able to limit the damages award to a nominal sum. The plaintiff's attorneys see that and rail about the dirty tricks used to delay cases and minimize a person's pain and suffering. They demonize each other. But what if there was a firm that was widely respected on both sides of the "v" and by the judiciary? A firm with a 50+ year legacy of fighting ethically for the injured, maximizing recoveries, and fostering long-term attorney growth. A firm known for both results and ethical practice, earning respect from judges and adversaries alike. A firm that dedicates significant resources and teamwork to ensure each client gets the best possible outcome. A firm that provides dedicated support staff allowing you to focus on developing business and practicing law. A firm that empowers attorneys to build a career and fulfilling future. A firm that will pay you what you're worth. Yes, you can achieve financial success while doing meaningful work. What if you had the opportunity to join such a firm? You do. Whether you're a plaintiff's attorney or defense attorney, DM me to hear more. 𝗕𝗲 𝗨𝗻𝗰𝗼𝗺𝗺𝗼𝗻ᵀᴹ #BeUncommon #FloridaLegalRecruiter #LegalRecruiter

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PAGA Reform Deal Tentatively Reached The California Private Attorneys General Act (PAGA) has done many things. Since its passage in 2016, it has resulted in an explosion of lawsuits, shuttered small businesses, put well over $100 million into the state’s coffers, and built substantial wealth for a huge band of gunslinging lawyers. What PAGA has not done is ensure uniform compliance with our state’s strict wage-hour laws. As a lawyer who frequently represents smaller employers, this is particularly disheartening. Last week, Governor Newsom, working with state lawmakers and labor and pro-business groups, hammered out a deal to reform key aspects of PAGA. The reforms, if passed by the California Legislature and signed by the Governor by June 27th, will result in removal of a pending PAGA reform measure from the November ballot. The reforms are calculated to: ·      Encourage prompt compliance with wage-hour laws by capping penalties for employers who act quickly to fix policies and practices, and make workers whole, after receiving a PAGA notice. ·      Create new, higher penalties for employers who act maliciously, fraudulently, or oppressively in violating labor laws. ·      Increase percentage of penalties that go to employees from 25% to 35%. ·      Expand the number of Labor Code sections that can be cured to reduce the need for litigation. ·      Help to reduce the impact on small employers by providing a more robust right-to-cure process. ·      Allow courts to provide injunctive relief to compel businesses to implement changes in the workplace to remedy labor law violations. ·      Require employee(s) who sue to personally experience the alleged violations brought in a claim. We will continue to monitor these developments. Regardless of reforms, it is clear PAGA is not going anywhere. The very best way to avoid these potentially disastrous lawsuits is to ensure full compliance with California’s wage-hour laws. We encourage employers to audit their timekeeping, overtime, meal and rest break and reimbursement practices, as these are the most common PAGA violations. Additionally, if the reforms become law, on receiving notice of a PAGA claim, in the form of a letter to the Labor Workforce Development Agency (LWDA), employers should immediately act to “cure” violations to reduce penalties. We can assist with each of these efforts. Please contact us for help.

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A wrongful death case came to us about three weeks ago. The statute of limitations was very close, slightly more than a month off. The matter was one of those situations where what happened was beyond wrong. Evil might be a more appropriate word. We took the case. The file information was confused. There were issues with the estate appointment. There were other complications. A lot of information needed to be processed in a short period of time. It was not a simple situation at all. The decedent's mother was anxious - and (understandably) more than a bit wary of lawyers by this point. We got it all put together. Last week on Thursday afternoon, I did the final edits on the Complaint. Everything was filed before lunch on Friday - with over ten days to spare I was super proud of how our crew handled this. Everyone did their job in a calm businesslike way. There was no crashing around. No announcement of "all hands on deck." Nothing was rushed or done at the last minute. That's how we try to operate at Rawls Law Group. There are lawyers who seemingly relish drama. Maybe getting something filed five minutes before the clerk's office closes gives them some sort of adrenaline rush. Beats me. I truly hate such episodes - and I always have. A few years ago a young lawyer proudly told me that he had pulled an "all nighter" to get a brief done. I thanked him for his effort, but I then pointed out that I couldn't see that circumstance as anything other than a failure of work planning. I thought the guy was going to cry, but I didn't regret telling him what I did. In 40 years as a lawyer I have done only one "all nighter." That's an amusing story for another day, however. The problem with artificial emergencies is that everything else gets disrupted. The normal flow of work gets diverted causing delays. That's not in the interest of our clients - and it's almost always unpleasant and stressful for those who get sucked into the process. What's worse, is that when you have these situations where everyone is pulled in and running around, mistakes happen. It's embarrassing to have to file amended documents in the days following because what you submitted to the court was sloppy and full of error. Work really hard to avoid needless confusion and stress. This business already has plenty of both. #lawyerlife #lawpractice #workflow #officepractices

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Appellate courts have been busy correcting/affirming the dismissal of bad faith claims nationwide. The Fifth Circuit struck down a $1.1 Million award for bad faith delay where the insurer had been actively investigating a complex loss. Active claims investigation does not violate the law. 🕵‍♀️ 👩‍🔧 Property insurer's denial not bad faith where insured's plumber discarded the leaky pipe. Aside from the repaired section of the pipe, no other evidence to support the claim or how loss occurred. Other noteworthy developments: 💱 An appellate court considered whether stolen cryptocurrency is covered under a first-party policy 🚗 A bill requiring underinsured and uninsured motorist coverage to match the policyholder’s liability limits is currently progressing through the New Jersey Legislature. #ClaimsNotes #CounselforInsurers #InsuranceMadeSimple #insurance #insurancecoverage #Cozen

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They say that good jury verdicts lead to better settlements. It's true. We scratched and clawed to get some decent verdicts over the last several years. We will give some pointers on identifying which cases you should select as the best cases to try. Then, once you get some verdicts, you'll want to use those verdicts as leverage or fuel to help improve the settlements for every other client. At TLU In Las Vegas on October 19 at 3:15, Lauren Byrne and I will discuss the tactics we've used to make all of these things happen. We will also share three different settlement techniques and strategies we have used to obtain settlements for all of the available insurance policy limits. In fact, we will do a deep dive into a recent case where the insurance company offered policy limits of nearly $3,000,000 with the individual defendant contributing an additional personal contribution of $362,500. If you haven't attended TLU before, give me a call. I can walk you through the benefits of attending and give you some valuable insight. #tlu #triallawyersuniversity #trialattorneys #settlement #juryverdict #negotiationstrategy

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When the jury began their deliberations, I was sure we would win. That's not what happened. This was a challenging case. Our client had been injured in a car crash, but we had some issues. - She misremembered certain details at trial. - Her vehicle had very little property damage (a scratch). - We didn't have a great response when the defense referenced some pre-crash injuries. Even with those issues, I was confident the jury would return a verdict in our client's favor. Honestly, I got the sense defense counsel thought we were in a strong position too. After 3.5 hours of deliberations, the jury did come back with a decision. Defense verdict. We lost. My client had trusted me and my firm all the way to trial, and she walked out of that courtroom with nothing to show for it. Since opening Chubb Law three years ago, we've been blessed with an unbroken streak of outstanding results for our clients. This case a couple months ago was the first trial we'd lost. I was proud of the case our team had put before the jury even though there are a couple things I might have done differently in retrospect. But the truth is this: If you try cases, you will lose. That's inevitable. Being on the wrong side of that verdict reinforced my belief that the best we can do is prepare as well as we can and leave everything out on the field. I absolutely hate losing. It's worse when losing means I came up short for a client. But it is true that I learn more from the losses than from the wins.

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Most auto accident cases should ultimately settle. The two big exceptions are cases that are so big the insurer just doesn’t intend to pay unless a jury makes them (and even then will likely appeal a trial loss), and cases that are so clearly weak that the defense would rather just try the case (rare unless you have a lawyer who can’t or won’t properly evaluate your case). Otherwise a failure to settle tends to indicate at least one party unable, or refusing, to properly evaluate your case. This doesn’t mean your attorney shouldn’t file suit (indeed, filing suit often leads to stronger outcomes but you’ll probably have to wait a lot longer and participate in fairly intensive discovery processes), but otherwise trial itself should either be last resort or something you do because you don’t mind the time and risk.

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Attorneys: It's IME/DME Time for your Client...Are You Unintentionally Dropping The Ball? I received an email last week from an attorney who received my report from a DME I recently attended for my attorney-client. He's co-counsel on the case. His words: "I didn't even realize nurse advocates can do more than just attend and audiotape or videotape the exam. This report breaks down everything the examiner did wrong...and these links are so educational! Thank you!" I told him I train my entire team to observe and write reports like this. I told him I couldn't wait to have him as a new client in the near future.😉 Never send your client alone to their exam (or send a representative who doesn't know what medical assessments should be performed, if they're performed correctly, or if any crucial tests are omitted.)  Don't underestimate what a legal nurse advocate can do for you. Don't drop the ball. Take a look at the report below... #IMEDMEReport #NurseConsultant #HealthcareConsulting #MedicalExpertise #DMEConsulting

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An employer gets a hole in one! 🏌‍♂️ In a recent case here in Arizona, a golf course employee filed a complaint asserting hostile work environment and retaliation in violation of Title VII. The plaintiff predicated its hostile work environment claim on two events: (1) she was groped by a non-employee; and (2) a coworker sent her a sexually suggestive text, which she reported to her employer. The employer immediately investigated and took action. First, it contacted security and law enforcement about the non-employee who physically touched the employee. Second, the employer next suspended the employee who sent the text message for a week. The coworker did not sent any similar text messages or otherwise acted inappropriately with the employee. Additionally, the employer also put an end to workplace gossip about the groping incident. Consequently, the court granted summary judgment over the plaintiff’s claim. Not long after her report, the plaintiff—whose employment was riddled with attendance issues—continued to violate the attendance policy. The employer, who had engaged the plaintiff in counseling and progressive discipline, terminated her employment. The plaintiff also asserted a claim for retaliation. The court, once again, granted summary judgment. In doing so, the court concluded the plaintiff failed to meet the requirements for retaliation. The plaintiff, it found, had indeed been disciplined and counseled; was aware she could be terminated for continued violations; and others had been disciplined for lesser violations. So what did the employer do right here? ⛳ It quick launched an investigation! I know I harp on this, but it’s with good reason! Prompt and thorough investigations are essential in defending future claims. The employer did that here and it paid off. ⛳ It took appropriate steps to address the conduct. An investigation is, of course, not enough. You have to take action to ensure the workplace is safe. The employer addressed both complaints and took swift action, which resulted in the plaintiff not experiencing any similar behavior.  The employer also addressed issues relating to workplace gossip by reminding its workforce about its policies its intolerance of such behavior. ⛳ It enforced its policies in a consistent manner. The employer here enforced its attendance policy against the plaintiff, who had a history of attendance issues. Having been previously disciplined, she was aware of what could happen if her attendance issues persisted. Thus, the employer was able to demonstrate its decision did not relate to her complaints. There was a lot of risk here, which the employer managed well. And while no one wants to deal with a lawsuit, summary judgment is a great result. Your friendly employment counsel will help you navigate sticky employment issues. Don't have employment counsel or looking for new counsel? I respectfully encourage you to call me and my colleagues at Pierson Ferdinand LLP. We got you!

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