​Progressive Insurance has one of the most visible advertising campaigns in the U.S. and promotes themselves as a top-notch insurance company committed to customer service at the highest level. But in the real world, Progressive sometimes employs a strategy that leaves its customers high and dry when they get sued.
 
We are handling a case against a Progressive customer. Progressive sold this young man a motorcycle policy with coverage of $20,000 for any personal injury claims made against him. This customer lost control of his motorcycle, and our client, who was a passenger on the motorcycle, was badly injured in the crash.
 
We filed suit against the operator of the motorcycle on behalf of our client. Normally, an insurance company would then hire a lawyer to defend the lawsuit against its customer. But not Progressive, at least not in this case. Instead, Progressive took advantage of a provision in its policy which allows it to refuse to hire a lawyer to defend their customer, so long as Progressive deposits the $20,000 with the court where the lawsuit is pending, to be applied to any verdict that the jury awards in the case.
 
The customer is left with two bad choices: either defend the lawsuit himself without a lawyer, or hire a lawyer and pay out of his own pocket for the lawyer to defend the case. In our case, the Progressive customer is also exposed to significant potential liability, which could run into hundreds of thousands of dollars.
 
What Progressive is doing here is not illegal – the insurance policy as written by Progressive gives them the right to do this. But it is probably not what Progressive customers expect when they buy a policy from Progressive.

- ​Paul Johnson, Esq.

Now that winter is almost here, it is worthwhile to think about what to do if you are injured as a result of slipping and falling on ice. It is very important in this situation to immediately take photographs of the dangerous condition. Unlike other dangerous conditions that can cause injury, all evidence of dangerous, icy walkways, parking lots, or stairways starts disappearing as soon as the temperature rises above freezing. For this reason, it is essential to take photographs of the site where you fell immediately, if you suspect that you may have been injured. If you are unable to take the photographs yourself, ask a friend or co-worker to visit the site to obtain photos.

​Many times, your initial reaction will be that you are fine. That is, of course, until you wake up the next morning after your injuries have had a full night of swelling. On top of this, you did not take photos immediately following your fall. All might not be lost. In this situation, the sooner someone heads back to the location where you fell, the better the chances that you will be able to gather photographic evidence to support your claim that the landowner failed to take reasonable steps to remove or treat dangerous conditions.

We reported on a case a few months ago that demonstrates the importance of taking photographs right away. In that case, a police officer was investigating an incident at a home.  He slipped on ice in the driveway and broke his leg. A fellow officer took plenty of photographs to document the condition of the driveway and at the home soon after the officer fell. The photos clearly showed the ice on the driveway at the location where the officer fell. In particular, the photos showed the location of a downspout that emptied water onto that location and caused the ice to form. This evidence was critical as it showed why there was ice in a location one would not expect ice to form. The photos of the downspout did one more thing – they showed that the homeowner could have easily prevented the ice, and the injury, by re-directing the meltwater from the downspout away from the driveway. On the strength of these photographs we were able to convince the homeowner’s insurance company to provide full and fair compensation for the officer’s injuries.


– Paul Johnson, Esq.

As the use of Uber becomes more and more common across the country, so do crashes involving Uber drivers. In that situation, will the driver’s personal auto insurance cover any injuries or property damage caused by the crash?

In general, the driver’s personal auto insurance will not provide coverage for any “driving for hire” activities such as driving for Uber or Lyft. Auto policies specifically exclude coverage for a vehicle which is “used as a public conveyance”. In fact, a driver’s personal auto insurer might well cancel the driver’s policy if the driver fails to tell his insurer that he is driving for Uber and pays the extra premium for a commercial policy.

​However, according to Uber’s website, it maintains a $1 million liability insurance policy that covers all of its drivers, from the moment a driver accepts a trip until the time the trip is over and the passenger exits the vehicle. This is better insurance than most individual drivers carry. It is also much better insurance than what most taxi drivers carry.

And what happens if you are driving your own car and you get rear-ended by an Uber driver? If there is a passenger in the Uber car or the driver is on the way to pick one up, there is plenty of insurance. Uber’s $1 million policy should cover any claims for injuries or damage to your car.  But if the driver is logged into Uber and waiting for his next call, Uber provides only $50,000 in liability coverage, and that is all there is, because the driver’s personal auto policy will not cover him at all. This is why it is so important for everyone to have “full” coverage on their own auto insurance policies.

– Paul Johnson, Esq.

This past December, the Massachusetts Supreme Judicial Court approved a statute that expands the time limit to bring lawsuits for child sex abuse.
This case arose out of a lawsuit by a woman who had been sexually abused by her uncle for many years when she was a child during the 1970’s. In the late 1980’s, she came to understand that she had been sexually abused, and that the sexual abuse had caused her serious, permanent mental injuries. She sued the uncle for civil damages in 2012, but a lower court judge dismissed the case, because the statute of limitations, which was three years at that time, had expired back in the early 1990’s.

In 2014, the Mass. legislature changed the law, extending the statute of limitations for civil lawsuits for child sex abuse from three years to 35 years, in recognition of the fact that victims of child sexual abuse often do not realize that they had been abused until many years after the abuse has ended.

The question in this case was whether the change in the law was retroactive – did the change in the law “revive” the woman’s claim against her uncle, even though her case had already been dismissed by the lower court?

The Supreme Judicial Court said yes, the new law was retroactive, and the woman could now re-open the civil lawsuit against her uncle. It was constitutional for the Legislature to make this change in the law retroactive, because “there is a strong interest and a well-established community consensus in favor of protecting children from abuse.”
​
– Paul Johnson, Esq.

Nurses enjoy an extremely high level of trust and respect, which is well-deserved. Unfortunately, this level of respect does not prevent nurses from having one of the highest rates of on-the-job injuries resulting from assaults.

One study published in 2014 found that about one-third of the nursing staff at a big city hospital had been physically assaulted within the past year. The study found that many of the injuries are caused by patients or their family members who are under the influence of alcohol or drugs, or who are undergoing withdrawal from alcohol or drugs. Just a few weeks ago, in September of 2015, one of the nation’s largest hospitals, the Bergen Regional Medical Center in New Jersey, was cited and fined by the federal Occupational Safety and Health Administration (OSHA) for failing to have adequate procedures in place to protect its employees, after eight separate attacks by violent patients within a three month period.

Nurses who are injured as a result of workplace attacks by patients have the right to be compensated for their injuries. Like all employees, nurses, who are assaulted and injured on the job, have the right to make a claim for workers compensation, just as they would with any other on-the-job injury.

In addition, it may be possible to pursue a claim against the patient or the family member who assaulted the nurse. In one reported case in Massachusetts, a visiting nurse recovered $145,000 from the husband of a patient after the husband assaulted the visiting nurse. The same legal principles that allowed this visiting nurse to recover would also allow a hospital-based nurse to recover for an assault.

Our firm has extensive experience in obtaining compensation for first responders such as police officers and fire fighters who are assaulted in the line of duty. The issues involved in obtaining a recovery for police officers and fire fighters in these situations are similar to the issues involved in obtaining a recovery for a nurse who has been the target of an on-the-job assault. If you know of a nurse who has been injured in an assault while at work, please have him or her contact us for an evaluation of the situation to determine whether we may be able to assist them in obtaining fair compensation for their injuries.

​– Paul Johnson, Esq.

Our clients often ask whether they will have to pay income taxes on the amounts we recover for them when they have been injured.  The answer is no.  Personal injury settlements and verdicts based on physical injuries are non-taxable.  The idea is that people receiving money from settlements and verdicts are not gaining anything as compared to how they were before they were injured.  The recovery is recognized by the IRS as a best attempt at making the person whole again.  Because of this, the IRS does not consider the recovery to be “taxable income”.

If the claim arises out of a physical injury to some part of your body, the entire settlement or verdict is non-taxable, even if it includes compensation for items like mental or emotional distress, medical bills, lost wages, and loss of future earning capacity.

Amounts recovered in some other kinds of lawsuits, like employment discrimination or wrongful termination, can be considered taxable income that must be reported to the IRS.  But any settlement or verdict that is based on a physical injury is non-taxable.

There is one exception to this rule.  If you took a medical expense deduction for any of the medical bills you incurred as result of the injury, then you have to report taxable income equal to the amount of the medical expense deduction you had previously taken. Click here for an IRS publication that covers this topic.

​– Paul Johnson, Esq.

A new bill signed into law by Governor Patrick this past August will not only permit Massachusetts lawyers to question jurors during the selection process, but also will allow attorneys to suggest a specific dollar amount for the jury’s verdict.

When prospective jurors are brought into a court room, they go through a process known as “voir dire” in which they are asked a series of questions about the case to identify conflicts of interest and remove biased jurors.  Up until now, it was the judge who asked all the questions and many judges did not dig too deep.  Often judges asked just enough questions to eliminate only the most obvious conflicts of interest – do you know the parties, or the lawyers, or any of the witnesses?

Now attorneys will get to ask the questions.  We know that there are some people in the jury pool who mistakenly believe that if they award any damages at all, insurance companies will raise rates across the board.  We know that some people think police officers and firefighters who are injured on the job should not be able to recover damages, because that is just part of their jobs.  We now have the ability to ask the right questions during voir dire to identify jurors who may be biased, and keep them off the jury.  The end result will be a better, fairer jury trial.

The new law also allows us to suggest a specific dollar amount to the jury for their verdict on damages.  Juries have great difficulty putting a dollar figure on things like pain, fear about the future, and losing the ability to do things someone used to be able to do.  We now have the ability to give juries guidance on translating these losses into a specific dollar amount.  Lawyers in most states have been able to do these things for years.  These two changes will help us as we work to bring just and fair compensation to our clients.

 - Paul Johnson, Esq.