 
Personal Injury
Personal injury is the invasion of any legally protected personal
interest by another. It is most commonly thought of as bodily
injury caused by the negligent act of another. A Workers' Compensation
claim occurs within the course of the employment of the injured
worker, unexpectedly, and without the affirmative act or design
of the employee. Personal injury is usually unforeseen and not
expected by the person to whom it happens.
Within the larger scope of personal injury is the action for
bodily injury, which includes physical pain, illness or any
impairment of physical condition. "Serious bodily injury" means
bodily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement or protracted loss or
Impairment of the function of any bodily member or organ. The
injuries to a person such as those described herein may be addressed
by means of a civil action commonly termed a "lawsuit." Personal
injury, in the narrow sense, is a hurt or damage done to a human
being's person such as a broken bone, disfigurement or the like,
as distinguished from an injury to someone's property. The phrase
chiefly describes actions in tort for negligence and under Workers'
Compensation statutes but also is used in a much wider sense
and includes any injury which is an invasion of a person's rights.
The case itself begins with substantial investigation. Often
the investigation will lead to negotiations which resolve the
matter without the necessity of filing a formal civil action.
A civil action begins with the filing court of a "Complaint,"
a legal document which outlines what the injured person (called
the "plaintiff") contends the opposite party (called the "defendant")
did which caused the harm. The Complaint also usually specifies
the injuries, and the amount sought as compensation. The case
then proceeds through what is termed "discovery," where interrogatories
(written questions directed to the other side) are asked and
answered, documents are required to be produced, and depositions
(oral testimony taken outside of court, but recorded by a court
reporter) are taken. The entire process may take a considerable
length of time. After trial, the losing party has the right
to have an appellate court examine the case to be certain the
proceedings were conducted fairly.
The delays in resolving a personal injury action by court proceedings
have lead many attorneys to seek resolution in ways other then
a jury trial. Sometimes a settlement can be reached by use of
mediation, a meeting for the purpose of settlement negotiations
conducted by a person trained to assist the parties in negotiations
(termed a "mediator") or by arbitration, a shortened non-jury
trial proceeding conducted before a neutral person or persons
selected by the parties to act in a quasi judicial role and
render a decision.
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Products Liability
Product liability refers to the legal liability of manufacturers
and sellers to compensate buyers, users, and others, for damages
or injuries suffered because of defects in goods purchased.
It is a doctrine in the law which makes a manufacturer liable
if his product has a defective condition that makes it unreasonably
dangerous to the user or consumer. Although the ultimate responsibility
for injury or damage in products liability cases most frequently
rests with the manufacturer, liability may also be imposed upon
a retailer, occasionally upon a wholesaler or middle-man, a
bailor or lessor, and infrequently upon a party wholly outside
the manufacturing and distributing process, such as a certifier.
This ultimate responsibility may be imposed by an action by
the plaintiff against the manufacturer directly, or by a claim
for indemnification asserted by way of a cross-claim or third-party
claim by the retailer or wholesaler or others who might be held
liable for the injury caused by a\ defective product. Under
modern principles of product liability, and with the elimination
of privity of contract requirements in most incidents, recovery
is no longer limited to the purchaser of the product, or even
to a user, but may extend to a non-user such as the bystander
who is injured or damaged by a defective product. Defendants
in such cases are usually covered by liability insurance, a
type of insurance coverage which protects manufacturers and
suppliers when claims are made for injuries and damage incurred
in the use of their goods or products.
Insurance Litigation- Embodies all of those areas of the law
in which insurance is involved. This would include Personal
Injury and Wrongful Death, Workers' Compensation, ERISA, Disability
Insurance, Life Insurance, Accidental Death Insurance and every
other type of insurance. The most common insurance litigation
involves liability insurance insuring the defendant for a wrongful
act, such as automobile liability insurance. Very often in automobile
accident cases there is a question about whether an insurance
policy provides liability coverage for the situation presented.
Litigation of questions of insurance law devoted to what is
commonly referred to in the trade as "CGL" policies ("Commercial
General Liability" policies)are common. Very often a serious
question of whether or not the policy in question will cover
the incident at issue is presented, and this must be resolved,
usually by a lawsuit called a "Declaratory Judgment Action."
Insurance is usually the focal point of all tort claims because,
without insurance, a victory would very often be hollow, as
the verdict would be uncollected. Almost every personal injury
or wrongful death lawsuit has at least one important insurance
issue.
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Social Security Disability
The Social Security Disability Insurance program provides monthly
benefits to disabled workers who have established a considerable
work history in Social Security-covered employment. It is an
important income-replacement program. Currently, millions of
disabled workers and their spouses and children receive disability
benefits from the Disability Insurance Trust Fund, one of the
three (3) trust funds administered by the Social Security Administration.
The law governing the disability program is found at 42 U.S.C.
401 at seq. and in the Code of Federal Regulations at Title
20, Parts 400-499. In order to be covered the claimant must
meet the requirements for fully insured status.The program provides
benefits not only to the insured disabled worker, but also to
family members.
Supplemental Security Income ("SSI") is a federally-funded income
maintenance program paid for from the general treasury, while
administered by the Social Security Administration. Such benefits
are payable to those who are blind, aged (over age 65), or disabled,
and who are also in very limited financial circumstances. In
contrast to the requirements for Title II Disability Benefits,
there is no requirement for Social Security-covered employment.
Note that it is possible to be eligible for Title II and SSI
benefits concurrently. SSI benefits are often referred to as
Title XVI benefits. There is an income test and a resource test
for SSI benefits. These limits are changed periodically.
Every claim begins with the filing of an application for benefits,
which can be done in person or by telephone. Many of these initial
applications for benefits are denied, even though the applicant
meets the criteria for benefits, and the claim should be paid.
A claimant has sixty (60) days from the date of the denial notice
to make an appeal to the next level, reconsideration. To request
reconsideration, a claimant files a Request of Reconsideration
of the claim, along with an up-to-date medical history and disability
report. Once again, many people who should be given their benefits
at this stage are denied.
Any claimant dissatisfied with the decision at the reconsideration
level may make a request to the Office of Hearings and Appeals
for a hearing before an Administration Law Judge. As soon as
the request for hearing is filed, the claim file is transferred
to the Office of Hearings and Appeals closest to the claimant.
There are One Hundred Twenty-Five (125) Offices of Hearings
and Appeals around the country. Claimants are afforded the opportunity
to appear before an ALJ at a hearing.
Should the decision of the ALJ be unfavorable, a claimant has
sixty (60) days in which to file a further appeal, a request
for review by the Appeals Council. Take note that all decisions
of ALJ's may be subject to review by the Appeals Council on
its "own-motion." As a result, until sixty (60) days have run
from the date of the issuance of the decision by the ALJ, an
ALJ's decision should not be considered final.
The Appeals Council, located in Washington, D.C., is the final
level of the internal S.S.A. appeals system. A claimant may
request an appearance before the Appeals Council but such is
rarely granted. The decision of the Appeals Council is the "final"
decision of the Social Security Administration and, if unfavorable,
may be appealed to the Federal Court system.
A complaint must be filed within sixty (60) days of the Appeals
Council's unfavorable decision in the United States District
Court having jurisdiction. In most cases the claimant, now termed
the "plaintiff" files a Complaint, Motion for Summary Judgment
and accompanying memoranda of law. It is unusual for a judge
to grant oral argument. These claims are often backlogged, in
part, because of the frequent government requests for extensions
of time in which to locate and transcribe the tape of the administrative
hearing.
The plaintiff and the government each have the right to appeal
a decision of the United States District Court to the Circuit
Court of Appeals. The only recourse after a decision of the
Circuit Court of Appeals is a petition for certiorari to the
United States Supreme Court.
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ERISA
A comprehensive scheme for the federal regulation of employee
benefit plans, ERISA regulates or is the source of numerous
rights and obligations. A large and steadily increasing volume
of litigation has arisen involving the enforcement or interpretation
of these rights and obligations. Most often ERISA litigation
involves disputes whereby an employee makes a claim for benefits
under the plan and is denied those benefits. Usually this would
be a claim for insurance funded benefits, such as Disability
Insurance, Life Insurance, Accidental Death Insurance and Health
Insurance. Such claims are litigated under different rules from
ordinary insurance claims which are not regulated by ERISA.
For example, ERISA claims are decided by a judge alone without
a jury. The burden of proof, while on the plaintiff, varies
depending on language contained in the specific plan at issue,
and is sometimes an extremely difficult burden on the plaintiff.
The claim is usually decided by a judge based upon the "administrative
record" prepared by the fiduciary (or insurer as the case may
be) regarding all of the information provided at the time the
claim was originally made by the plaintiff. The litigation is
usually, but not always, in federal court.
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