Georgia Law Blog

A Fond Farewell To Justice Stevens

For 35 years Justice John Paul Stevens served on the United States Supreme Court.  During that time, he had the opportunity to affect virtually every area of constitutional law.  His critics charged that he was an activist judge who did not follow the original intent of our founding fathers.  Such criticism was, in our opinion, unfair.  The Constitution is not a document etched in unyielding stone, but rather a living document designed to limit the government and to protect the individual.  At the Thomas Jefferson Memorial you will find these words from our third president:

I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.

 

            Without question, Justice Stevens followed Jefferson’s philosophy and at times determined the law must evolve to deal with the here and now as opposed to what was occurring over 200 years ago.  Ironically, the same critics who accused him of being an activist judge criticized Justice Stevens when he did follow what could be described as original intent theory.  Of course, the real reason for the criticism is that his opinion did not favor unions and corporations.  In the case of Citizens United v. Federal Elections Commission, the majority of the U.S. Supreme Court struck down a campaign finance law that prohibited corporations and unions from promoting the election of one candidate over another candidate.  In his dissent, Justice Stevens wrote:

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation.  While that glittering generality has rhetorical appeal, it is not a correct statement of the law.  Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose.  It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC.  The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

 

In the context of election to public office, the distinction between corporate and human speakers is significant.  Although they make enormous contributions to our society, corporations are not actually members of it.  They cannot vote or run for office.  Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.  The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.  Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

 

            The U.S. Constitution does not contain any language that corporations and unions must be treated equally with individuals in the political arena.  Yet, the so-called conservative strict constructionist wing of the Supreme Court found such organizations to be on equal footing with you and me.  As the future unfolds, I am certain that Justice Stevens’ concerns about the majority position will be realized to our detriment.

            So, farewell Justice Stevens.  You followed the rule of law and did your best to protect the rights of your fellow citizens.

 

 

Congratulations To Kennesaw State University

Kennesaw State University recently dedicated Prillaman Hall which will house the Wellstar College of Health and Human Services nursing program.  Georgia has a shortage of nurses and this new facility will help KSU address that shortage by expanding its nursing program.  Until now, KSU has only been able to accept one in nine qualified applicants due to space limitations.  Congratulations to KSU and all involved in addressing our need for more nurses.

On-Line Services To Assist Your Selection Of A Nursing Home

Once you have made a decision that a loved one needs to be admitted to a nursing home, the next step is to select a facility. In making your decision, do not forget to research valuable data that can be found on-line as to the quality of care rendered by a facility. For instance, Medicare offers a website that gives you a starting point in researching a specific facility and comparing it to other nursing homes. That website can be found at www.medicare.gov/nhcompare. The site also provides a helpful checklist for things you should consider. “A Consumer Guide Choosing a Nursing Home” by the National Consumer Voice For Quality Long-Term Care (NCCNHR) is another valuable tool for you to use in evaluating facilities. Go to www.nccnhr.org and click on either the resident or family members section to access “The Consumer Guide to Choosing a Nursing Home.” Hopefully these tools will assist you in getting started on your nursing home selection process.

KUDOS for KEN SHIGLEY

Ken Shigley is the new president-elect of the State Bar of Georgia which has about 40,000 members. The State Bar of Georgia exists to foster among the members of the Bar of this state the principles of duty and service to the public to improve the administration of justice; and to advance the science of law. In addition to his State Bar involvement, Ken also recently authored “Georgia Law of Torts – Trial Preparation and Practices.” It is a practical “how to” book for lawyers handling cases involving truck and auto wrecks, defective products, dangerous buildings, medical negligence, and other torts or civil wrongdoing.

Seatbelts In Buses

On August 16, 2010, Transportation Secretary Roy LaHood announced a proposal to require large tour buses to have seat belts. The proposal solicits comments as to whether just lap-only belts or lap-shoulder belts should be required. The proposal would not apply to smaller buses such as school buses and city transit buses or the existing fleet of tour buses. Ken Shigley of our firm was involved in representation of members of the Bluffton University baseball team in Atlanta a couple of years ago. That tragic crash helped bring about the proposed rule change. This proposal is a good first step, but the proposed requirement should go further to include all buses. No doubt, some people may not use the safety belts, but the opportunity to enhance safety should be afforded. The use of seat belts in buses would definitely decrease the chance of being ejected from the bus during a rollover event.

Should I Sign an Agreement to Arbitrate?

            Whether it is a lease agreement, employment contract, insurance enrollment forms, or health care admissions documents, many contracts now contain an “Arbitration Clause.”  This is language within a contract, whereby the parties agree to waive their right to resolve disputes in a court of law and rather submit any future disputes, claims or controversies to arbitration.  Before forfeiting your right to have a judge or jury decide your case, it is important to understand your rights and what you are agreeing to.

            In arbitration, a neutral third party conducts a hearing, wherein each party and their attorneys have the opportunity to present their case through written or oral evidence.  The “neutral” is not an elected or appointed judge, but rather a person who is hired by the parties to hear the evidence and decide the dispute.  After the hearing, the Arbitrator renders a decision which is final and binding on the parties.  In other words, the Arbitrator acts as a judge and “decides” the case, just as a judge or jury would.

            Sometimes, people confuse arbitration and mediation. Both are forms of alternative dispute resolution, but mediation differs from arbitration in that the parties retain the decision-making power in mediation.  A Mediator is hired to facilitate a discussion between the disputing parties and assists them in trying to resolve the dispute.  Usually, the parties will meet collectively with the neutral Mediator to discuss the facts of the case. Then the parties separate, while the Mediator goes back and forth between the parties and assists in settlement communications and negotiations.  Any resolution comes from the parties, and the parties are free to pursue litigation if their case is not resolved in mediation.

            Signing a contract that contains an arbitration clause means giving up your constitutional right to a jury trial.  Many agree that one of the best aspects of the American legal system is access to the courts.  It is often in court that a larger company is held accountable to individuals.  In a court of law, there are rules and procedures that are in place to help ensure a fair and impartial trial.  Additionally, by filing a lawsuit, parties have the right to engage in discovery, or the pre-trial exchange of information, regarding their case.  With the court’s subpoena power litigants can also obtain documents and information from non-parties for use in their case.   Unlike arbitration, there is a right to appeal an adverse judgment in the court system. Furthermore, courts can provide a range of remedies, including monetary damages, punitive damages and injunctive relief, where the court compels the offending party to do something or prohibits that party from taking action.  Finally, court records and filings are public records, while arbitration proceedings are often private and confidential.

It is important to note that both arbitration and mediation are viable options, even after a lawsuit is filed, if all parties agree to it.  In other words, by filing a lawsuit, you are not precluded from later deciding to resolve the dispute through arbitration or mediation.  After consulting with an attorney, a party to a dispute can then decide if court litigation or a form of alternative dispute resolution is better suited for their particular case.   However, if a contract containing an arbitration clause is signed and a dispute later arises, a person’s right to utilize the court system may be forever lost. 

Ideally, any contract should be the result of negotiations between two equal parties, whereby both sides agree to the terms, including any arbitration clause.  For example, the parties should reach an agreement as to what type of disputes should be submitted to arbitration and where the arbitration should be submitted.  The arbitration should be conducted by a truly neutral arbitration body, not one that is compromised of, financed by, and/or heavily influenced by members and advocates of only one of the parties to the contract.  Finally, the responsibility of costs should be set forth in the contract, as well as the rights of the parties to rescind the agreement to arbitrate and consult with legal counsel, among other items.

There are dangers when signing a contract that contains an arbitration clause, especially when the parties signing the contract have unequal bargaining power.  For example, does a patient seeking treatment at a hospital who signs admission forms containing an arbitration clause really have equal bargaining power with the hospital over the contractual terms of the forms he or she is required to sign?  In some health care situations, a patient can simply cross out the arbitration clause language contained in the admission forms or refuse to sign a particular form.  Oftentimes, though, individuals cannot negotiate with larger companies, such as credit card, mortgage, or insurance companies who have a contract containing a mandatory arbitration clause.  In those such cases, consider shopping around before signing away your rights.

Both mediation and arbitration can be efficient, cost-effective ways to resolve disputes.  However, once parties agree to submit their case to arbitration, oftentimes their right to have a court of law decide the case is lost.  Therefore, it is important to understand your rights before you sign a contract containing an arbitration clause.  Generally, people are bound by the terms of the agreements they sign and are presumed to have read and understood them.  It is thus important to be on the lookout for arbitration clauses and to do what you can to avoid them or truly negotiate their terms before you waive your important right of access to the court system.

Excess & Umbrella Insurers Beware!

In a landmark decision, the Georgia Court of Appeals ruled last week that excess and umbrella insurance companies are required to provide uninsured/underinsured motorist coverage unless the insured has specifically rejected the coverage – even if the policy contains a provision excluding such coverage.  See, Abrahams v. Atlantic Mut. Ins. Agency, A06A1501 (08/31/2006).  The Court held that Georgia’s uninsured motorist statute, O.C.G.A. 33-7-11, requires all insurers who provided motor vehicle liability coverage – even excess or umbrella insurance – to offer uninsured/underinsured motorist coverage.

 

And, the bad news for the insurance companies didn’t stop there.  The Court went even further, stating that unless the insured specifically rejected coverage in writing or chose lower limits, the amount of coverage would be the same as the policy limits.  Given that most excess and umbrella policies are written for at least a million dollars, and it is unlikely that many, if any, excess carriers have ever offered UM coverage in Georgia, the insurance industry could be on the hook for millions of dollars for a risk they thought they had excluded.

Arguably, this decision could be viewed as “unfair” to the insurance companies as most of their policy holders were made aware (if they closely read their policies) that no such coverage was included.  However, the Court determined that the UM statute is crystal clear that these companies had an obligation to at least offer the coverage and let their insureds choose whether to reject.  The insurance companies had an opportunity to collect the premiums for additional coverage – now they will be providing UM coverage for free.

Orkin Class Action - What's Bugging You?

     The Aug. 23, 2006 Atlanta Journal Constitution (D-1) included an article about an elderly Marietta, Georgia couple who have been fighting in court against Orkin Exterminating and its parent company Rollins, Inc. for 5 years because they said Orkin failed to live up to its contract to provide inspections and treatments to keep their house safe from termites.  Their case and the struggle of their attorney to recover against Orkin and Rollins, was helped this week by the Judge’s decision to expand the scope of the case to include other similar claims against these companies.

     Now up to 70,000 Orkin customers will have a method to seek some compensation for failed treatments, and improper inspections that have occurred since 1995.   The Judge’s approval of a class action status for this case allows many Georgians to obtain some recovery for their claims which otherwise would have been ignored because their individual claims were too small to find someone to fight for them. 

     While politicians, corporate leaders and the Chamber of Commerce frequently complain about class action abuses, the truth is that class action lawsuits are an important and often the only way for many small claims to be handled and to gain meaningful attention from corporate defendants.  When these politicians and companies call out for lawsuit “reform,” what they are really doing is trying to block thousands of average citizens with small or medium sized losses from gaining any recovery for their losses.  That should bug you.

Stopping Insurance Company Abuse

     Insurance companies like to advertise that when you deal with them “You’re In Good Hands” or that they will be “Like a Good Neighbor”.  Advertising is one thing, reality is another. 

     This week the Georgia Insurance Commissioner fined Safeway Insurance Company $500,000.00 for its pattern of unacceptable conduct.  The Sept. 6, 2006 press release by Commissioner Oxendine outlined the terms of an order that put Safeway on probation for the next two years and required it to stop denying injury claims without a reasonable written basis.  The order also forced Safeway to refund money to its customers for improper charges it had used to reduce property damage payments during the last 5 years.

     Unfortunately, the Commissioner’s Office press release didn’t mention the numerous lawsuits and complaints filed by lawyers in recent years against Safeway.  Their efforts to force Safeway to treat Georgians fairly should not have been ignored.

     It would be nice to believe Safeway Insurance Company is the bad apple in the bushel basket, but many lawyers will tell you similar problems exist with many insurance companies they deal with.

Get Rid Of The Lawyers?

     President Bush, Congressional leaders, the Chamber of Commerce and other politicians are busy making speeches attacking the jury system.  You also see doctors, corporations and insurance companies paying for lots of advertisements to do the same thing.  But stop and think how your world would be different, if people didn’t have lawyers to stand up and fight for them.  Many safety issues were fought for and won by the efforts of lawyers.

     Baby cribs used to have rails that were spaced far apart, and tragically, infants slipped through them and were injured or killed.  Now, those cribs are made with the rails close together.  Gas tanks on some cars used to explode into flames when hit, but are now built to avoid that tragic result.  These changes didn’t happen by themselves.  Time and time again, lawyers, fighting for persons and families, brought cases that changed things for the better.

     A few years ago, lawyers in our firm participated in a case against a bus manufacturer, which had a dangerous design to the seals on the door.  This defect caught the strap of a young girl’s backpack as she exited the bus, and resulted in her being dragged and killed. 

This case was similar to several earlier cases in the mid and late 1990’s across the country that fought for safer bus designs because children were being injured and killed getting off the bus because the hand rails had snagged or caught drawstrings on clothing and straps on backpacks.  Many of these design errors have now been corrected by product recalls.

     The issue of school bus safety was highlighted by the Atlanta Journal Constitution, (page MS1) on Aug. 27, 2006 in a story that outlined various innovations such as safer controls and sensors, to help the driver know if a child was in the “danger zone” outside the bus. The article also focused on the new flatter design of the front hood of buses and how that improved visibility.  However, the article failed to tell the reader anything about why those changes occurred.  The role of lawyers and lawsuits was never mentioned.

     In contrast, the role of lawyers was noted in the Aug 27, 2006 New York Times article about Ford Motor Company’s recalling of millions of vehicles because a defective switch was believed to have been causing vehicle fires.  The article noted that multiple lawsuits had been filed against Ford for fires that had caused damages and deaths.  It also highlighted the role of government safety investigators in pinpointing the cause of these fires.  Ford’s spokeswoman continued to deny Ford was at fault for these claims. 

     Before you fall for the current campaign against lawyers and lawsuits, ask yourself how you would do in fighting a Ford Motor Company, or some big insurance company on your own.