Hot Topics

INSURANCE COMPANIES
"GOOD NEIGHBORS?" --- "GOOD HANDS?"

What could have been one of the most powerful laws to protect consumers of insurance services in the State of California was California Insurance Code §790.03. That is, until the right to sue an insurance company for violations of the provisions of this law was taken away from consumers about ten years ago. And those consumers, only now, are beginning to discover the importance of this right they have lost. Unfortunately this discovery usually comes after a claim is made to one of those insurance companies.

Section 790.03 of the Insurance Code defines what acts are to be considered "unfair methods of competition and unfair and deceptive acts or practices in the business of insurance."

Among the various provisions, this section defines "Unfair Practices" by insurance companies and prohibits such acts as making false or misleading statements regarding the content of policies, misstating the insurance company's financial condition, or unfairly discriminating between individuals in setting rates for life insurance.

But, by far the most significant part of this law is the part that sets out and defines Unfair Claims Settlement Practices. Some of the more general prohibited acts are as follows: 

1. Misrepresenting the policy provisions relating to the coverage of the policy.
2. Failing to acknowledge or act reasonably promptly upon communications from consumers relating to claims.
3. Failing to have standards for the prompt investigation and processing of claims.
4. Failing to tell the customer, in a reasonable time, that there is, or is not, coverage after the claim is made.
5. "Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear."
6. Forcing a consumer making a claim to resort to litigation to recover amounts due under the policy by offering less than is appropriate.
7. Failing to provide promptly a reasonable explanation to the consumer of the basis why a claim was denied or why such a settlement offer was made.
8. Advising a customer making a claim not to obtain an attorney.
9. Misleading a consumer making a claim about the statute of limitations.
10. Delaying HIV or AIDS related benefits under certain conditions.

Prior to 1988, if you had an automobile accident where the other driver was at fault, or you were injured in some other way because of the negligence of another person, and that other person's insurance company gave you the run-around and delayed resolving your claim by doing any of the above acts of "Unfair Claims Settlement Practices," then you could sue that insurance company for "bad faith" in the settlement of your claim.

Your right to bring this lawsuit, i.e. this danger to the insurance company of liability over and beyond what their insured did to you, is what motivated insurance companies to attempt to quickly and fairly settle claims when one of their insurance customers caused injury to another person.

In 1988, a conservative majority of the California Supreme Court decided that consumers should not have this right. Now, if an insurance company commits any, or some, of these "Unfair Claims Settlement Practices," then what you are left with to option to file a complaint with the State of California Department of Insurance. And, anyone who has ever tried to get a governmental agency to act promptly to correct an act of "bad faith" by a corporate giant should be well aware that essentially the consumer is now left without a remedy.

As a consequence, more and more insurance companies are delaying settlement of legitimate claims because there is no longer a downside to delaying such settlements. If they delay, delay, and delay - they can't be sued! But, they can continue to earn interest on that money they are keeping from the consumer with a claim.

It is time the consumers get their right to sue back in order to balance the power of the insurance companies. It is time that consumers stand up to their legislators and demand that through new laws this right to force the insurance companies to be fair is re-established. It is time that the government - that is, the courts, the legislature, and the governor - balance the power by restoring rights to consumers.

WHEN IS A BUMP ON THE HEAD MORE THAN JUST A "BUMP" ON THE HEAD?

Closed-head brain injuries are potentially very devastating injuries. Yet, they are frequently misunderstood by the victims of such injuries. The families of these victims often observe the symptoms of such injuries, yet do not realize that the victim is actually demonstrating classical symptoms of a closed-head brain injury.

Worse yet, in spite of efforts by the victim's attorney and expert witnesses, closed-head brain injuries are more often than not misunderstood by jurors sitting on cases involving these injuries. This frequently is a product of the use of the term "mild traumatic brain injury" to describe such a condition. "Mild" in this context is a comparative term as opposed to a "serious" traumatic brain injury which invariably involves an actual cracking or physical insult to the skull itself. Nevertheless, jurors and insurance companies often improperly rely on the word "mild" to denigrate the seriousness of the injury.

Many times the symptoms of a closed-head brain injury do not appear until sometime after the initial injury and, thus, the "bump on the head" that was not considered to be serious at first, in fact, can be a serious and life changing injury

A "closed-head brain injury" occurs when the brain, being encased in the skull and basically "floating" in fluid is severely jolted from rapid movement of the skull. This can occur from the most obvious source - a traumatic blow to the head, or it can occur from a more subtle source - a whip-lash movement of the skull causing the head to go backwards and then forwards in quick succession.

In closed head brain injury cases, brain damage typically occurs in two stages. First, the brain inside the skull is impacted on the inside of the skull where the original trauma takes place. It is then thrown against the inside of the skull on the opposite side of the skull from which the original trauma took place - literally bouncing back and forth inside the skull. Frequently, depending on the source of the original trauma, the brain can suffer a rotational motion from the trauma. This is the primary injury that results at the time of impact.

The secondary injury occurs and develops later and gives rise to physiological and psychological symptoms from the effects that the primary injury has set in motion. In other words - the bump on the head, or the headache you get after the bump, may only be the beginning of the problems.

Symptoms observed as the result of a "closed-head brain injury" usually fall into three categories. Not every case will include all of these symptoms.

1. First, there are the "behavioral symptoms." These include personality changes exhibiting irritability, anxiety, depression, fatigue, emotional lability (change), and social isolation.
2. Next, there are the "physical (somatic) symptoms." These include headaches, dizziness or vertigo, fatigue, sleep disturbances or problems, sensitivity to light or noise, and nausea.
3. And, finally, there are the "cognitive (thought) symptoms." These include, memory problems, attention problems, concentration problems, slowing of information processing, and decision making (executive) functions.

Many times the victims themselves are not aware that they are demonstrating these symptoms. This is especially true with the behavioral or cognitive symptoms. The most valuable, and often the most reliable witnesses to the existence of the injury are family members, friends, employers, and co-workers. They are able to describe what the victim does not realize exists. An underlying realization that something is wrong, that something is different, may be held by the victim, but because of the injury itself they are not capable of describing or comprehending what is wrong and what has changed.

One of the main problems with obtaining adequate compensation for these types of injuries usually lies with the physical appearance of the victim. These injuries are subtle and are not manifested for the world to see at a quick glance. Different from a broken leg or a cracked skull, just looking at the victim in a courtroom does not necessarily demonstrate the injury. The victim often appears to be perfectly normal and without distress. Thus, skeptical jurors often send such victims of closed-head brain injuries away with no compensation for their injuries. Insurance companies are well aware of this fact. Thus, getting a settlement before a trial for a closed-head brain injury is a very difficult proposition.

Even a skilled and experienced lawyer who has utilized the best expert witnesses to document his client's injury will have trouble with this type of case. The experts utilized will invariably include a neurologist, a neuro-psychiatrist, and a neuro-psychologist. The neurologist frequently will not be able to contribute anything objective since signs of this injury more often than not will show nothing out of the ordinary on an MRI, a CAT scan, or an EEG. But, the neurologist's testimony is necessary to describe the physiological nature of the injury. The neuro-psychiatrist will be a valuable witness to establish the existence of the injury and the future treatment that will be required. The neuropsychiatrist usually will rely heavily on the neuropsychological testing administered and evaluated by the neuropsychologist.

Nevertheless, with these witnesses, and with a selection of lay witnesses testifying as to how the victim has changed from before the accident, as compared to after the accident, a skilled attorney with experience in presenting this type of injury should maximize the potential for recovery for a victim of a closed-head brain injury.

MCDONALD'S COFFEE CASE  --- What Are the Facts?

The now infamous case of a lawsuit against the McDonald's Corporation for serving dangerously hot coffee generated an extraordinary amount of public outcry. Every time I question potential jury members before a trial, I always hear the same thing. The potential jurors all say that the civil justice system is out of control and they refer to the McDonald's case. Then when I question them as to what they really know about the case, again, I always hear the same thing. All they know is that a jury awarded $2.7 million in damages to some little old lady who spilt coffee on herself while driving away from McDonald's drive through line. Unfortunately, just about none of this is what happened. Here are the facts:

Fact #1 - For years McDonalds served their coffee up to 40 degrees hotter than other fast food restaurants. In this way, they could get more coffee per pound of beans and increase their profits by a few cents per cup.

Fact #2 - McDonald's coffee was so hot that, if spilled, it could cause third degree burns, which would burn through skin and down to the muscle in less than three seconds.

Fact #3 - McDonald's has had over 700 previous claims related to serious burns from their coffee to their customers, many of whom had been injured in the genital area, inner thighs, and buttocks areas. Yet, McDonald's refused to lower the temperature of their coffee.

Fact #4 - The injured (burned) plaintiff in this case, 79 year old Stella Lieback, was not driving her car. She was seated as the passenger in her grandson's parked car, holding the coffee cup between her legs while removing the plastic lid. The cup tipped over and poured the scalding hot coffee into her lap causing third degree burns.

Fact #5 - Mrs. Lieback required eight days of hospitalization and multiple surgeries, including skin grafts as a result of being scalded by McDonald's coffee.

Fact #6 - Mrs. Lieback only took legal action against McDonald's after they refused to reimburse her for her medical expenses.

Fact #7 - The jury was so outraged at the arrogance and callousness of McDonald's that they awarded punitive damages; to punish McDonald's and to deter McDonald's from such conduct in the future. They awarded $2.7 million.

Fact #8 - The day after the verdict, McDonald's reduced the temperature of their coffee.

Fact #9 - The trial judge thought the verdict was too high and reduced the verdict to about $400,000 at McDonald's request. (This is one fact that the insurance lawyers and McDonald's corporate lawyers never mention.)

Now you've got the facts! The system works just fine. McDonald's got the message.

FIRESTONE TIRES & SUV ROLLOVERS  --- What Are The Facts?

Updated by NHTSA: October 24, 2000

What Firestone tires are being recalled?

All Firestone ATX and ATX II tires in the P235/75R15 size. All Firestone Wilderness AT tires in the P235/75R15 size that were built at the Decatur, Illinois tire plant. 2. What vehicles are these tires on? These tires were original equipment on certain Ford Explorer, Mercury Mountaineer, Ford Ranger pick up trucks, and the Mazda Navajo and B-series pick up trucks. These tires were also sold in the aftermarket and may be on any light truck or SUV that takes the P235/75R15 tire size. Firestone Tires included in the Recall were installed as Original Equipment on these vehicles*†

Manufacturer	Model	Model Years
Ford	Explorer	1991-2000
Mercury	Mountaineer	1996-2000
Ford	Ranger (pick-up truck)	1991-2000
Ford	F-Series Light Trucks	1991-1994
Ford	Bronco	1991-1994
Mazda	B-Series (pick-up truck)	1994-1996
Mazda	Navajo	1991-1994

*Note: Please note that not all tires on these vehicles are included in the recall. See the response to question number 3 below to determine if your tires are included.

*Note: Tires are being recalled regardless of the vehicle they are mounted on. Please go to question 3 below to determine if your tires are included.

At 11:00 AM on Wednesday, August 9, Bridgestone/Firestone (Firestone) and Ford announced jointly that Firestone will recall approximately 14.4 million tires that contain a safety-related defect. (Most of the tires in question were original equipment on Ford vehicles, primarily the Ford Explorer, although a small number were used as original equipment on other manufacturers' vehicles, and they have been used as replacement tires on a wide variety of models.)

The recall will cover all P235/75 R15 Firestone ATX and ATX II tires (from 1991 to the present) and all P235/75R15 Wilderness AT tires (from 1996 to the present) manufactured at Firestone's Decatur, IL plant. Firestone does not plan to recall the approximately 5.6 million Wilderness AT tires manufactured at its other plants ( Joliet, Canada and Wilson, NC) or other models of Wilderness tires.

Firestone estimates that approximately 6.5 million of the tires covered by the recall (which include original equipment, replacement, and full-size, non-temporary spare tires) are still on the road. The remedy will be to replace the defective tires with new Wilderness AT tires from the Joliette and Wilson plants, other Bridgestone/Firestone tires models, and competitors' tires. All owners will be able to obtain the replacement tires at Firestone /tire & Service Centers, and participating Bridgestone/Firestone retail stores. Ford, Mercury, and Mazda owners will be able to obtain them at participating Ford, Lincoln, Mercury and Mazda dealerships.

Owners who wish to purchase competitors' tires will be reimbursed up to $100 per tire, including mounting and balancing charges and taxes. Owners should pick up a refund form and obtain additional information from a Bridgestone/Firestone authorized retail location. Bridgestone/Firestone began mailing notification letters to owners on August 26, 2000 and will complete that process by October 14, 2000.

NHTSA will continue its investigation to ascertain whether the scope of the recall is appropriate (e.g., whether tires from Firestone's other plants should have been recalled also, and whether other sizes of these brands should have been covered). We will also monitor the recall to assure that it is performed expeditiously and that the remedy is adequate. Answers to Frequently Asked Questions

How do I know if my Firestone tires are included?

If you have an ATX or ATX II tire: You need to find your tire size on the tire. The tire size is located on both sides of the tire. It is in raised black letters and it is in slightly smaller print than the words, "Firestone ATX". The size will read as follows: P235/75 R15 31X10.50R15 LT215/75R15 etc. Only tire size P235/75R15 is included in Firestone's recall.

If you have a Wilderness tire: First you need to read the model name off of the sidewall of your tire. There are several models of Wilderness tires. There are Wilderness AT, Wilderness HT, and Wilderness LE tires. Only certain Wilderness AT tires are involved in the recall. If you have a Wilderness tire other than one that says Wilderness AT on the sidewall, your tire is not included. If you have a Wilderness AT tire, you need to check the tire size. The tire size is located on both sides of the tire. It is in raised black letters and it is in slightly smaller print than the words, "Firestone Wilderness". It is located between the words Firestone and Wilderness, slightly above these words.

The size may read as follows:

P235/75R15, P245/75R16, P255/70R16, P215/75R15, etc.

Only tire size P235/75R15 is included in Firestone's recall.

Next you need to locate the DOT code to determine where your tire was built. The DOT number is located on the blackwall side of the tire, under the F in Firestone, and it is 10 characters long, and it starts with DOT. Since this code is on the blackwall side of the tire, and not on the outlined white letter side of the tire, you may need to crawl underneath your vehicle with a flashlight to find the code. There may be spaces in between some of the numbers, but be sure to count all 10 characters to ensure you have found the proper code.

Examples include: DOT VDHL1PM046    DOT W2HL1M0470     DOT VDHLA16089

The first two letters of the DOT code are the DOT plant code. If the first two letters of the DOT code are VD, your tires were built in the Decatur, Illinois plant and are being recalled. If they are not VD they are not included.

For information   VD is Decatur, Illinois      VN is Joliet, in Quebec Canada      HY is in Oklahoma City, Oklahoma     W1 is Lavergne, Tennessee      W2 is Wilson, North Carolina     8X is Aiken, SC

NOTE: If you are unable to find your DOT number, if you are unable to determine whether your tire is included in the recall, or if you would rather not crawl under your vehicle, Firestone is offering to inspect all tires. You may take your vehicle to a Firestone store and ask them to check your DOT number. Firestone will inspect the tire and let you know whether it is included in the recall. Participating Ford dealers will conduct similar inspections for Ford vehicles.

I recently got my Firestone tires replaced, can I get reimbursed?

There is nothing in the law requiring reimbursement for consumers that have had their tires replaced before a recall was announced. However, manufacturers will often reimburse consumers for customer satisfaction. In this case, Firestone has said that customers who exchanged recall tires between January 1, 2000 and August 8, 2000 at a company-owned Firestone Tire & Service Center or authorized Bridgestone/Firestone retailer and paid a prorated fee for those tires may receive reimbursement by completing a reimbursement form available from an authorized Bridgestone/Firestone dealer.

For recalled tires that were replaced by a non-authorized dealer between August 9 and August 16, 2000, reimbursements will be limited to $100 per tire including mounting balancing, and taxes. Call Firestone for more information at 1-800-465-1904.

What brand/model of tires will Firestone be replacing my tires with?

The tires being recalled will be replaced with Firestone Wilderness AT tires built at tire plants other than the Decatur, Illinois plant, other Bridgestone/Firestone models, and competitors' tires.

I have a Ford Explorer, but I don't have P235/75R15 tires?

Your tires are not involved in the recall. Some Ford Explorers also come equipped with P225/70R15 or P255/70R16 and possibly other tire sizes. Only the P235/75R15 tires are included in the recall.

When will I get a notice in the mail?

Firestone began mailing notices on August 26, 2000 and will complete that process by October 14, 2000. Ford owners will receive an additional letter from Ford Motor Company explaining the recall process.

What should I do now, while I wait to have my tires changed?

In the meantime, check your tires. Be sure your tires are properly inflated to the vehicle manufacturer's specifications. Do not drive over the speed limit. Do not overload your vehicle. Wear your seatbelt. If you do need to have a repair performed on your tire, have it professionally repaired by a tire dealer or vehicle dealer. Be sure to check the air pressure in your spare tire. If you must use your spare tire, make sure it is properly inflated. Information about the manufacturer's recommended cold tire inflation pressure and vehicle weight rating can be found in both the owners manual and on an identification sticker in the vehicle, most commonly found on the hinge pillar of the driver's side door. Be aware that while these precautions are good general guidelines to tire safety, if your tread has already started to separate from your tire, these guidelines may not prevent a tire failure. Also, be advised that visual inspection of the tires may not be sufficient to detect potential tread separation.

NOTE: If you have a Ford Explorer, Mercury Mountaineer, or Mazda Navajo equipped with tires in the P235 tire size (see question 2 above to determine what size you have on your vehicle), Firestone recommends that you increase the air pressure in the tires to 30 psi cold and maintain it at that level. Ford, as noted on the identification sticker mentioned above, recommends 26 psi for the Explorer, Mercury Mountaineer, and the Mazda Navajo with the P235 tire size. Ford now approves that a range of 26-30 psi as appropriate for these vehicles. Consumers who own Explorers with other tire sizes, such as the P255 or P225, should follow the recommendations of the manufacturer on the identification sticker in the vehicle.

How much will the recall cost me?

Replacement Firestone tires will be provided at no cost to the consumer. Consumers who wish to purchase competitors' tires will be limited to $100 per tire, including mounting, balancing, and taxes.

Where do I go to get my Firestone tires replaced?

If you have a Ford vehicle, you can go to either a participating Ford Lincoln or Mercury dealer or Firestone tire store. If you have a Mazda, you can go to a participating Mazda dealer for a free tire inspection, but their dealers are not currently equipped with tires for replacement. If you don't have a Ford vehicle, you must go to a Firestone store. Please be aware that dealers may not have the inventory to furnish tires immediately. Call your dealer or store to schedule an appointment. To identify a convenient and participating retailer, call toll-free 1800-465-1904 or 1-888-276-2120 in Puerto Rico. Independent participating dealers include:

• Costco: Replacement with Wilderness AT or competitor's tires and handling reimbursements. Free mounting and installation.
• Midas: www.midas.com
• Sears: Handling Sears customers who originally purchased Firestone tires at Sears. This is done under Sears 100% satisfaction policy. Replacement tire cost is limited to original purchase price. If replacement tire costs more, then customer pays the difference. Tire installation and mounting is free. For everyone else, Sears will replace tires at cost to the consumer who can then request reimbursement from Firestone.
• Sunoco Ultra Service Centers (800) 786-6261
• Wards: Replacement with competitor's tires at no cost and with free mounting and installation.

What is NHTSA doing with the investigation?

NHTSA is keeping the investigation open until we determine whether the scope of Firestone's recall is appropriate. We are reviewing all of the data that is sent in to determine if the scope of the recall is justified, or if other tire sizes, additional tires built at other plants, or other tire models should be included.

What is the difference between Firestone tires built at the Decatur, Illinois plant that are involved in the recall and the other tires that are built at other Firestone plants?

An internal engineering review within the Decatur plant is underway. Currently, Firestone believes that the scope of the recall is appropriate based on data they have analyzed and shared with NHTSA. Our investigation will remain open until we verify that the scope of Firestone's recall is appropriate. We are reviewing all of the data that is sent in to determine if the scope of the recall is justified, or if other tire sizes, additional tires built at other plants, or other tire models should be included.

Will my spare Firestone tire be replaced?

Yes, if your spare tire is one of the tire models included in the recall, Firestone will replace the spare tire at no charge also.

To whom do I report a Firestone tire failure?

NHTSA's investigation will remain open until we determine whether the scope of Firestone's recall is appropriate. So, if you have experienced any tire failure, we encourage you to report it to us by calling our toll-free Auto Safety Hotline at 1-888-DASH-2-DOT (1-888-327-4236) or by completing an electronic complaint form on this website, http://www.nhtsa.dot.gov.

To report a tire failure, you may also contact Firestone at 1-800-465-1904, Ford at 1-800-392-3673, or whoever is appropriate for your particular tire and/or vehicle if the tire that failed was original equipment. When reporting a tire failure, it would be helpful if you are able to provide us with the following information:

• Your Name, Address, and Day and Evening Phone Number(s)
• Describe what happened, you were driving down the road and....
• How did you know you had a tire problem?
• How many people were in the vehicle?
• Was anybody hurt?
• Do you know what kind of tires were on the vehicle? (Example: Firestone, Goodyear, Cooper, General, etc.)
• Do you know what model of tires were on the vehicle? (Example: Firestone ATX, Firestone Wilderness, Goodyear Wrangler, etc.)
• What vehicle were you driving? Make, Model, and Model Year. (Example: 1997 Ford Explorer, 1995 Chevrolet Blazer, etc.)
• If you have your vehicle identification number (VIN), it is helpful. The VIN is located at the base of the driver's side of the front windshield and is 17 characters long. It is also located on a sticker in the vehicle, usually in the driver's door jam. You may also find your VIN on your car insurance card, insurance paperwork, and/or your state motor vehicle title.
• Were the tires Original Equipment (sold on the vehicle when it was new) or aftermarket?
• When did the tire failure occur? Date of incident:
• About how many miles were on your vehicle? Approximate vehicle mileage:
• About how many miles were on your tire? Approximate tire mileage:
• How fast were you going? Approximate speed at the time:
• Can you get the DOT # off of the tire that failed? [On tires involved in the recall, the DOT number is located on the blackwall side of the tire, under the F in Firestone, and it is 10 characters long, and it starts with DOT...., on other tires it is located on at least one sidewall of the tire (please note if your tire is still on the vehicle, it may be on the inner sidewall) and it always begins with the letters DOT] (Example: DOT#: VDHL1PM046) [Note: Beginning in the year 2000, tires have an 11 digit DOT number. (Example: DOT#VDHL1PM0400)]
• Can we get your tire size? (Examples: P235/75R15, LT 255/75R16, P255/70R16, 31X10.50R15LT, etc.)
• Location of tire on the vehicle: Which tire was it? (example: driver's side rear tire)
• Do you still have the tire and/or the tread (if the tread separated)?
• Have you contacted your dealer (e.g., Ford, Toyota, etc.) or the tire store (i.e., Firestone, Goodyear, Michelin, etc.) or your insurance company?
• What did they say?
• Do you have a police report, photographs, or any other evidence of what happened? Is it possible to get a copy?

IF YOU HAVE HAD AN ACCIDENT BECAUSE OF FIRESTONE TIRES - CONTACT OUR OFFICE IMMEDIATELY FOR INFORMATION