Articles Posted in Uncategorized

Mediation – What, Why, When, Who and How?

What:    Mediation is a means to an end – resolving your case – that is quicker, cheaper and more certain than the alternative of going to trial.  Mediations may be court-ordered or voluntary, but either way, the parties retain all decision-making authority and control over the case.  Although a mediator may provide advice and counsel, she is without power to decide the case.

Why:     There are many advantages to mediation and very few disadvantages: 1)Mediation allows the parties complete control over the outcome whereas one has no control once the case goes to trial; 2)Having all the parties together allows for quick and easy exchange of offers and  demands; 3) Mediation provides a much quicker resolution to your case than going through the clogged judicial system; 4)Mediation is less costly than continuing to litigate a case through trial;  5)Good mediators offer insight into your case that can help you and your lawyers properly evaluate its merits and weaknesses.

Fiduciary is a fancy legal word.  It simply means a person who stands in a position of trust or confidence to another.  A fiduciary cannot profit at the expense of the other person.  A fiduciary relationship can be created by statute, such as in the case of partners or incorporators, or it may arise because of the course of dealing and relationship between the parties.

There are many ways in which a fiduciary duty may be created.  Attorneys have a fiduciary duty to their clients.  This is especially true where the attorney is in possession of money belonging to the client.  The Attorney has a fiduciary duty to properly handle and account for those funds.  Failure to do so would be a breach of his fiduciary duty.  Likewise, stockbrokers and financial advisors have fiduciary duties to their clients.  Luring investors into inappropriate investments or churning an account to generate commissions could be a breach of that fiduciary duty.  Sometimes insurance agents can be fiduciaries for their customers.  Such a relationship could arise where the agent, whose knowledge of insurance products is vastly greater than the customer, knows that the customer is relying on the agent’s superior knowledge.

There are many statutes in Alabama which define a fiduciary.  These include the Uniform Fiduciary Act which specifically defines a fiduciary as “a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, re-agent, officer of a corporation” and so on.  Corporate officers and directors occupy a fiduciary relationship to the corporation and its stockholders.  For example, when it was discovered that Wells Fargo employees had created unauthorized bank and credit card accounts some of the shareholders filed what is called a shareholder derivative case against the officers and directors of the company.  The Court held that the plaintiffs had alleged a sufficient violation of the directors’ duties to survive a motion to dismiss.  Directors of corporations have a fiduciary duty to reasonably insure that management is complying with the law.

Jails and correctional facilities (local, state and federal) have an obligation under the law to provide adequate medical care to detainees and prisoners. A person who is in the custody and control of a detention facility obviously is not free to seek medical care and must rely upon the facility to provide adequate medical care. When they fail to do so, and that failure causes harm, liability may arise.

The duty owed to inmates depends on the nature of the claim as well as the status of the inmate or detainee.  For example, when improper or inadequate medical care is provided, a person who suffers harm may have a state law medical negligence claim as well as a federal constitutional claim. Under the Eighth Amendment to the US Constitution, convicted prisoners have a right to be free from “cruel and unusual punishment.”  The United States Supreme Court has held that the Eighth Amendment bars “deliberate indifference to serious medical needs of prisoners,” which would constitute the unnecessary and wanton infliction of pain.  Estelle v. Gamble, 429 U.S. 97 (1976).

In cases involving pre-trial detainees, the obligation to provide medical care arises from the due process guarantees of the Fourteenth Amendment. The U.S. Supreme Court has held that the failure to provide such care amounts to a form of punishment imposed on persons not convicted of a crime, which is impermissible.  Bell v. Wolfish, 441 U.S. 520 (1979).

Wikipedia defines ethics as:  A branch of philosophy that involves systemizing, defending and recommending concepts of right and wrong conduct.  Alabama citizens in general, and the Alabama legal community in particular, can take pride in the fundamental role Alabama played in the development of modern-day codes of ethics across many disciplines.

Thomas Goode Jones, a nineteenth century railroad builder, lawyer, politician and Civil War hero, wrote our nation’s first code of legal ethics, which was adopted by the Alabama State Bar Association in 1887 and the American Bar Association in 1908.  Every state bar association in the nation has now followed suit with a Code of Professional Conduct based on Jones’ original work.  Jones went on to become Governor of Alabama in 1890, and his name lives on at the Thomas Goode Jones School of Law in Montgomery, Alabama.

As drafted and revised throughout the last 150 years, ethics rules expand on the foundational and timeless Golden Rule:  Do unto others as you would have them do unto you.  The rules, through prescription and proscription, provide for truthfulness, honesty, integrity, fair treatment of colleagues, adversaries and clients alike, and respectful decorum toward the institutions of government and society at large.

Cancer kills.  In the United States, it is estimated that cancer kills 600,000 adults and 1200 children each and every year.  The good news is that cancer deaths are declining.  According to the American Cancer Society, the cancer rate for men and women declined 25% from 1991 to 2004.  That translates to 2.1 million fewer deaths in this period of time.

While this is great news, the truth is that even fewer people should have died from cancer during this period of time.  Round up, made by Monsanto, has a key ingredient called glyphosate.  The International Agency for Research on Cancer has recently announced its determination that glyphosate is “probably carcinogenic to humans”.

California has a law known as Prop 65.  This law requires California to mandate manufacturers of any cancer causing product to label those products as carcinogenic.  Based on the findings of the International Agency for Research on Cancer, California is requiring glyphosate manufacturers to label the herbicide as a carcinogen.  The question becomes which products would require labels – some worry that Round Up – the most popular product on the market with glyphosates in it – would not be required to carry a label because of its low percentage of glyphosates.  California’s current proposal is that products that have the potential to expose consumers to 1.1 milligrams of glyphosates per day would be required to have warnings but there is no guarantee that is what the final regulation will be.

 CONVERSION VEHICLES

                Converted vehicles and be fun and seem luxurious.  The most common type of converted vehicle is the conversion van, but conversions can also be made to limousines, campers and for special needs uses.  When a motor vehicle is manufactured, the Federal Motor Vehicle Safety Standards require that it be built so as to reasonably protect the occupants in case of a crash.  This crash worthiness requirement is met by the design and component parts of the vehicle.  All crashes involving motor vehicles produce energy, or force, which can harm the occupants if these forces get into the occupant compartment.  The design standards required by the FMVSS allow the occupants to “ride down” the forces in a crash.  The restraint system (seat belts and airbags) can be very effective in protecting people in a crash.  Likewise the sides, front and roof of a motor vehicle are all designed to absorb the energy of a crash.

Unfortunately, when motor vehicles are converted, such as in a conversion van, the vehicle can lose some of these design and manufacturing elements that are intended to protect the occupants.  For example, it is popular to replace the seats in a van with more luxurious looking captain’s chairs.  This modification can affect the efficacy of the restraint system.  It can also result in a situation where the converted and modified seating lacks the strength of the original design.  Other modifications or so-called up-grades, such as raised roofs, enlarged windows and decorative panels can also reduce the crashworthiness of the vehicle.

Monsanto Roundup Litigation Update

Roundup is a herbicide used to kill weeds that compete with agricultural crops. Glyphosate, the active ingredient in Roundup, works by inhibiting a specific enzyme required for plant growth.  By 2001, Roundup weed killer was the most-used active ingredient in American agriculture, with an estimated 85-90 million pounds used each year. In 2007, that number reached 185 million pounds annually and today, Roundup remains the most widely used herbicide in the United States and worldwide.

According to the World Health Organization (WHO), glyphosate has been linked to serious forms of cancer, including:

When automobile and truck tires fail because of design defects or manufacturing defects the results can be catastrophic. Permanent injury or death is foreseeable results. When a lawyer begins to evaluate a potential tire failure/defect case there are several things that are of great importance. First, a good working knowledge of tire design and the manufacturing process is critical.

A typical radial tire has eight component parts. The tread is the outermost part of the tire. It is the component that is designed to meet the road. The design elements that make up an adequate tread can be complicated. Thin cuts in the rubber surface of the tread are called sipes. They help to improve traction on wet roads. Groove ratio and shape are also important. The ability of a tire to keep traction in various road conditions depends of the efficacy of the design of these elements. Below the tread is the cap ply. This component helps to maintain the shape of the tire and control heating. Below that are the belts, a layer that strengthens the tire. These are rubber bonded with steel cords. It helps improve the performance of a tire during turning. The carcass ply is similar to the belts. Fiber cords bonded with rubber help strengthen the tire. The inner liner has a function similar to an inner tube. It is an airtight layer of rubber. The sidewalls, beads and lower beads are the parts of the tire that form the sides, help conform the tire to the metal rim and keep the tire properly attached. As can be seen, a tire is a complex product and defects in the design and manufacture of the various components must be carefully evaluated.

For example, a poor design or faulty construction of the inner liner can lead to tread separation. Improper curing, the use of corroded materials in the manufacturing process, contamination by foreign materials and the use of aging rubber stock can also lead to tread separation. Tread separation usually results in loss of control or a blowout. This can be devastating. Underinflating or overinflating tires can also lead to tire failure. It is very important to check the air pressure in tires on a regular basis to guard against this. But even if tires are properly maintained and serviced, design and construction defects can still lead to tire failure. This is especially true with respect to the issue of under inflation. Tires can leak air. This can be caused by tires that are more permeable than they should be.

Under Alabama law, an individual  who operates a vehicle is not liable for injuries or damages sustained by a non-paying passenger within the vehicle unless the injured passenger can show that his or her damage resulted from willful or wanton conduct on the part of the driver. Alabama Code Section 32-1-2.  Although this law can be beneficial for some drivers, it can leave injured passengers without any recourse for recouping losses received due to the negligent actions of drivers.  For this reason, most states have abandoned these types of “guest” or “passenger” statutes.

The Alabama Guest Statute was passed in 1935. The law provides that the guest must be transported without payment in order for the statute to apply.  Therefore, if the evidence shows that the driver received any payment or other benefit (such as an Uber, cab or bus driver would), then the driver would not be shielded from liability under the Guest Statute. Additionally, if the injured passenger can show that the driver’s improper conduct was willful or wanton, the Guest Statute does not bar recovery.  Generally, “willful or wanton” is improper conduct that is greater than “mere negligence”.  Examples include drinking and driving, excessive speeding and other types of reckless driving.

The Guest Statute does not apply to a claim for negligent entrustment or supervision.  Therefore, in situations where the driver of the vehicle was entrusted the vehicle by another person or entity, an injured passenger may still have a valid claim against the owner of the vehicle in certain circumstances.  Additionally, an injured passenger may be able to recover damages under the Uninsured Motorist Statute where coverage is available.

Last week’s blog addressed the increase in work place injuries.  While worker’s compensation is generally the exclusive recovery source from the employer, there are other potential sources of recovery. Below are some common scenarios from work place injuries that may result in your ability to recover for your injuries:

Motor Vehicle Accidents/Car Wrecks:

A very common type of third-party claim arising from a workers’ compensation action is when someone gets into a motor vehicle accident or car wreck while driving for work.  Many people drive as part of their jobs: truck drivers, package delivery personnel, sales people who make on-site client visits, construction workers who haul materials, home health workers, even lawyers who have to drive to and from court.

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