A Letter to Our Clients

Dear Clients, Friends, and Family:

November 8, 2016 is Election Day and it is fast approaching. In addition to the high profile races saturating the airwaves, there are a number of judicial races that are important to our community here in Northeast Ohio. Every election cycle we are asked by clients, friends and family what our opinion is regarding judicial candidates as we deal with the judicial process on a daily basis. To that end, below this letter is a sample of the ballot with some of the judicial races that are before   us this year.

Our higher courts, and in particular our Ohio Supreme Court, have become severely off-balance.   In the last decade Ohio became a national story as the insurance industry poured millions of dollars into a high-stakes takeover. In the midst of this feeding frenzy, one of our most respected justices stated to a national news organization:

“I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race.”

That’s Justice Paul E. Pfeifer, who had previously served as a state senator and representative. He had been through at least six elections before his first judicial campaign, so he knows what he’s talking about. Traditionally these had been ‘sleepy’ races, but no longer.  Accordingly the current Court is 6-1 and many of its justices were the beneficiaries of this massive spending. (This was supposed to somehow lower your insurance rates. Please call us if that worked out for you.) The candidates we have endorsed are underfunded, outgunned, disrespected by boardrooms and Wall Street, but the sort of folks who have repeatedly said no to the powerful and will remember that   the courts are there to serve the people.

At the trial court level, we have focused on the general division races, as these are the courts that hear general civil and criminal cases (as opposed to the specialized courts such as probate, juvenile, and domestic relations). General division courts have the busiest and varied dockets in Ohio, and it is crucial to have judges who can manage these complicated, heavy workloads.

As the majority of our clients reside in Summit, Stark, Portage, and Medina counties, we have limited our county-level races to these counties. As it happens, there are no general division contested races in Portage and Stark counties this year. When you read the next article, you will understand why.

Our recommendations are in bold. We urge you to take this with you to the polls and share this with your friends and families. While these races may not be as high profile as the presidential election, they are very important. We strongly encourage you to vote and make your voice heard.

Early voting has already begun in Ohio. For further information please visit the Secretary of State at www.sos.state.oh.us or your local board of elections. If you have any questions about the judicial candidates or if you need assistance getting to the polls, please let us know.

The politics of the Judiciary 

Below is a list of judges who come to mind that have served as a judge in Summit County since 2010 but are no longer sitting as a judge:

1) Jane M. Davis

2) Clair E. Dickinson

3) Eve Belfance *  

4) Judith L. Hunter *   

5) Patricia Cosgrove

6) Bill Spicer

7) Brenda Burnham Unruh

8) Thomas Parker *

9) Thomas M. McCarty

10) John Holcomb

11) Todd McKenney *

12) Christine Croce *

13) Greg Macko

     *   Multiple courts

A few have retired. Most however have been either moved to another location through the political process or defeated in a race for the seat they held.

In Summit County there are 29 state judicial seats including Municipal Court, The Court of Common Pleas and The Ninth District Court of Appeals which happens to sit in Summit County.  Elected Judges serve a 6 year term. As you can see by the list of judges who’ve come and gone in the last six years, there is a high attrition rate in being a judge in Summit County. By comparison in Portage and Medina Counties we have the following statistics. There are 12 state court judicial seats in Portage County and 11 judicial seats in Medina County. Since 2010 the judges who have   left the bench in Portage County are Judge Thomas Carnes, Judge John A. Enlow, Judge John Plough and Judge Joseph Giulitto and they left due to retirement after many years of service as a judge.

Since 2010 the judges who have left the bench in Medina County are Judge James Kimbler and Judge John J. Lohn and they left due to retirement after many years of service as a judge. So why   is it in Summit County that we have such a turnover of judges? The answer is simple: politics. When there is a vacancy on the bench, a judge is appointed by the governor. As the current governor is a republican, all of the appointments since Governor Kasich came to office have been republican. Likewise his predecessor Governor Strickland, a democrat, only appointed democrats. Usually whenever a  judicial seat is up for election, it is a contested race with someone running from the opposite party in Summit County. What that brings us to is many of the judges are more politician than they are lawyer. We have judges with little or no experience coming on to the bench. We have one sitting judge right now that one of us has never met despite having cases in her court and hearings set before her. Magically she’s never been there at any of these. The point being that we represent clients in these courts and we have a good feel for the judges who actually work.

Our recommendations in this newsletter do not show a judge’s political affiliation. A judge’s political affiliation means nothing to us. We have good and bad judges who are both democrats and republicans. We are more interested in a judge who has a good work ethic and their experience; work ethic being the more important factor. Thus we take the recommendations we make in this newsletter seriously and we ask that you urge every member of your family to vote and urge you to have your friends, neighbors, and relatives vote as well and share this guide with them.

We currently represent a young married couple and their case just took a bizarre turn.  They had been visiting the wife’s parents on Easter Sunday, and around 7pm were driving home with their 5 children in their minivan. They had traveled less than 2 miles up the road when a drunk driver blew a stop sign, T-Boned their minivan, and sent both vehicles rolling into a corn field.   The at fault driver refused to be tested for alcohol, but given his severe injuries he had to be life flighted, and as a result his blood was taken. His blood alcohol level was well above the legal limit. The impact was so devastating that two life flights were scrambled to the scene and six local fire departments sent squads.  The injuries to the family ranged from minor cuts and bruises to several fractured bones. 

The insurance company for the drunk driver has refused to adequately compensate the family.  And startlingly, it has now filed a counterclaim against the family seeking money damages from them for the drunk driver in the event that a verdict is returned against him.  This cockeyed theory is based on the idea that somehow, if it turns out in the course of the case that any of the children were not properly secured in a seat, the victims of this incident owe the drunk driver money.  Again, suit has just been filed and no testimony has been taken.  There is no evidence of any child being improperly restrained; this is just a “Hail Mary” the Defendant has heaved into the courthouse.

Defendants have many rights under the law.  They can raise various defenses, and these range from “you have the wrong person” to “you ran out of time to file your claim” to things like “you failed to mitigate your damages by not wearing a seatbelt.”  That’s all well and good.  But to have a Defendant– a drunk driver no less– seek money damages from the family whose lives he hurt; that’s a new low.  Stay tuned for the outcome of this case.

Insurance, at its heart, is a bet by both sides. You are paying money out of your budget for protection from large losses: a totaled vehicle, a house fire, being off work for months due to an injury.  The insurance companies are betting that all of the premiums they take in will total more than all of the claims they pay out. Every month you pay your premiums without a claim is like a little side-bet that they win.  Whenever a claim occurs, you are asking them to honor their end of the bet, step up, and deliver the protection they promised.  Whenever they can squelch on that bet, they will.

You are not part of the claims process very often (if ever).  Insurance companies live and breathe it and are always looking for ways to minimize claims. 

One particularly insulting insurance tactic is to give themselves credit for money you have been paid by other companies.  The harmless-sounding term they use for this is “set-off.”  To illustrate this, let’s switch gears for a moment to a different kind of bet: scratch-off lottery tickets.  Say you have the good fortune to purchase two winning tickets; one for $3,000 and one for $5,000. Sounds like you won $8,000, right?  Not in the insurance world.  In their tortured thinking, you get the $3,000 ticket, and then they get to “set off,” or in other words, take away, those winnings from the $5,000 ticket, magically transforming it into a $2,000 ticket.  $3,000 plus $2,000 = $5,000 total to you, not $8,000.  When the dust settles, it’s like the $3,000 ticket never happened.  And to add insult to injury, let’s say they deducted the $4 you spent for the tickets from your winnings.

Obviously the Ohio Lottery does not work this way.  But insurance companies are constantly pushing for changes to the law that can infect the claims process with twisted math like this. What’s worse is that this hurts injured friends and family members, not scratch-off ticket buyers.  For a real world example, if you paid them to cover your injuries caused by an uninsured motorist, they owe you for any medical bills you accumulate as a result.  Sometimes they will sell you and you will pay an additional premium for medical payments coverage as well.  This also pays for medical bills. If your medical bills exceed one coverage or the other, you purchased extra protection through the additional coverage, but insurance companies usually do not see it that way and will set the one off from the other. They may set off the coverage from the other driver, or health insurance, or all of these.  To add insult to injury, they have refused to lower their premiums after making all of these coverage ever more fantasy than reality.

The insurance industry counts on no one paying attention to  these issues.  In a future issue we will discuss why a clear and consistent rule requiring them to honor every coverage they have been paid for is better.

We all know that automobile dealers want to sell cars. But did you know that if a customer leases an automobile, the end result is the dealership sells the car. In a lease deal, the car gets sold to some financial institution that in turn is going to finance the lease. Generally customers are savvy enough to know how to negotiate the price of a car. There are plenty of services online that can provide the true value of an automobile. A lease however gives automobile dealers the opportunity to introduce multiple variables into the equation. How many miles a year are you allowed to drive before you have to pay for excess mileage? What is the residual value of the car at the end of the lease term? What is the value of the car that is being leased? What interest rate is being used? All of these numbers can vary and can change the outcome of the monthly lease payment. It is not uncommon for a dealership to be involved in hours-long negotiations in the showroom over the purchase amount and the associated monthly payments on the purchase. After an impasse is reached, many hours later, the dealership introduces a lease with numbers that are favorable to what the customer was seeking in terms of the monthly payment. If the customer is only focused on the monthly payment amount, the lease suddenly looks attractive. Buried in that formula however is the value of the vehicle. We often see leases where the number used by the dealership for the value of the vehicle is a number higher than what the customer could have purchased the vehicle for outright at the time. For example, the vehicle has a window sticker price of $24,000. The vehicle can be purchased for $21,500. The car ultimately ends up being leased and  the value of the vehicle is listed at $26,000. The customer may be happy with the payment numbers but the dealership is really happy because they just sold a car for $2,000 more than the sticker price and $4,500 more than what they would’ve sold it for to someone who came in to just buy the vehicle. The agreed upon value of the car in the lease agreement is the amount the dealership gets paid for selling the car to the finance company who in turn is going to accept payments over time from the customer. The bonus to the dealership is then at the end of the lease term the customer will return a car to them that they get to sell (again) and they have the customer back in the showroom in need of another vehicle. The attorneys at Willis & Willis have reviewed many auto leases. We would be happy to take a look at your lease for you prior to your signing it to help you understand the lease.

When I first started representing injured people 30 years ago, the rule was that whatever the medical provider billed was legally presumed to be the reasonable amount for the medical services provided. Back then, if you had health insurance coverage, your medical bills would be paid by your health insurance.  You did not have to pay your health insurer back if you recovered the cost of your medical bills back in an injury claim.  After all, you paid for or worked to obtain the health coverage. That is not the case now. The law now allows the health insurer to get their money back from you, if you collect it from the responsible party for your injury. With the pay to play politics in Ohio the insurance companies bought their way to changes in the law that dramatically favor them at the expense of the injured person and their treating physicians.

Insurance companies ratchet down the reimbursement rate to health care providers. Insurance companies control these reimbursement rates. Changes in the law sought by the insurance industry allow these same insurers to argue that the discounted amount that they decide and then pay to medical providers is the reasonable value of the medical services as opposed to the amount that was originally billed by the medical provider. Not satisfied with control of what they pay out by setting reimbursement rates to medical providers; the insurance industry demands that they be reimbursed for all amounts they have paid toward medical bills for an injured person. Even if that leaves no funds for the injured person. There are a couple of problems with that process. First, insurance companies will not do any of the work to go collect money from the responsible party for injuring someone. They want the injured party to do all the work. Second, if the injured party’s medical bills exceed the amount of insurance coverage available, the health insurer wants all the money and the injured party ends up getting nothing. As best as we can see, Ohio is in a unique position in all the states.  We are the only state where an insurance company can unilaterally reduce the “reasonable value” of medical care by controlling what they pay medical providers and in the end demand they be paid back all money they paid toward medical care, regardless if the injured  person ends up with any money to compensate them for their injuries and damages. We are aware of no other state in the union that allows insurance companies such an advantage on both offense and defense, so to speak. It is a double standard and stacks the deck in favor of the insurance industry. 

I am not a fan of Governor Kasich because some of this has come about on his watch. But I must give him credit for signing into law a bill recently that addresses this problem. This new statute says in essence that when there is not enough money to pay back the insurance companies and to pay the injured party a “fair” amount for their injuries, then there must be some equitable division of the funds between the injured party and the insurance company. This statute is a shift, albeit a small one, in the path to do away with the right of injured parties.

Some doctors are refusing to see their patients when the patient has been involved in a motor vehicle collision.  A recent telephone discussion about a teenage boy we represent will illustrate the point.  The boy’s mother called their long time family physician to make an appointment for follow up care for injuries the boy sustained in a collision.  He had been admitted to the hospital and kept overnight for observation and told to follow up with his primary care physician.  When the primary care physician office learned that the reason for the follow up was because of a motor vehicle collision they refused to make the appointment.  They informed the client that the doctor would not see him.  The mother was flabbergasted.  She and her entire extended family had been patients of this doctor for decades.  All of her children saw this doctor.  Her brother, sister and their families saw this doctor yet he refused to see her son merely because he had been involved in a motor vehicle collision. The boy and his family had good health insurance coverage that would pay for the visit, just like any other visit to the doctor.  The excuse was that somehow the doctor’s office would not be paid.

We read insurance policies all the time.  In thirty years of practice, I have never seen a health insurance policy that somehow excluded coverage for motor vehicle collisions. Health insurance policies simply don’t do that.  What most health insurance policies do is they have provisions in them for the health insurance companies to get their money back. (Read the article “Coming full circle”) The worst we have seen is a provision that the health insurance policy will pay for treatment related to a collision as a backstop to other available coverage.  But they do not exclude coverage for such treatment.

So why do some doctors not want to see injured patients?  I can only guess, but I think the real reason is most doctors do not want to be involved in the claim process.  They don’t want to have to fill out a form or provide records outlining the injuries that happen in the collision. I can understand if the doctor wanted to charge some extra amount for their time in having to do the paper work involved in an injury case, and many do.  But to tell patients that they won’t see them because they have been involved in a collision is morally wrong and speaks volumes about the character of a doctor that would turn his back on a patient in need.

Recently we had a client who was involved in a motor vehicle collision who hired us to represent him. We will call him Joe. Joe was rear ended and went to the emergency room and followed up with one visit to his family physician. His medical bills totaled $1218.75. His health insurer paid a total of $553.71 in medical bills. Ultimately, with Joe’s consent, we agreed to a settlement with the at fault party’s insurance company for $3,000.00. We negotiated an agreement with his health insurer in which he would not need to pay the $553.71; the at fault party’s insurer paid his medical bills.
 
When the paperwork and settlement check arrived, Joe decided that this was not enough money. He was fixated on what could have happened to him in this collision.  He might have been killed or maimed or permanently injured. He wasn’t; he just couldn’t get over what might have happened. His physician gave him a clean bill of health nine days after the collision. Joe was convinced that a jury would surely award him more money if they heard his story about what might have happened to him.

Joe chose to file a lawsuit and take his case to Court, thereby reneging on his agreement to settle the case. We informed Joe that wewould not be involved in his decision to back out of his agreement to settle with the insurance company. At that juncture, the insurance company could have enforced the settlement leaving Joe in the same place that he started with the addition of the time and emotions involved in a court proceeding.

When a client informs us he wishes to settle a case and then changes his mind we cannot undo what has been negotiated in good faith. We advised Joe that he was certainly free to pursue the case on his own as he was convinced that he could sway a jury with what might have happened to him and subsequently they might award him more money.

Joe decided to file a lawsuit. He spent $400.00 just in the filing fee with the clerk of courts. Initially we negotiated no reimbursement to his health insurance company. But after Joe filed the lawsuit, his health insurer decided that since Joe might be awarded more money, they wanted to claim the money they paid for his medical bills. In addition, the insurance company of the person at fault in the collision retracted the $3,000 that they had offered us prior to suit because now they needed to spend money to defend the case. In a meeting with the judge, the judge informed Joe that he would have to have his doctor come in and testify at a trial. Joe’s doctor wanted a $1,000.00 for his time in testifying at a trial.

Joe ultimately came back to us and wanted to know if we could revive the deal that we had worked out originally with the insurance company prior to his filing suit. The insurance company refused claiming they spent money defending the case. Thanks to some arm twisting by the judge, the insurance company paid Joe the $3,000.00 they agreed to pay beforehand. Joe now had to reimburse the health insurance company ($553.71), incurred $400.00 to file the lawsuit, and he had to pay us.  In the end, Joe lost about half of his original offer when he changed his mind and decided to try to handle the matter himself.

What could cause Ford, GM, Chrysler, and other manufacturers to unite with trial lawyers like ourselves?  It’s something the insurance industry has fought all the way to the Ohio Supreme Court to avoid telling you.  It’s also one of the many gripes our clients have in the immediate aftermath of a collision:  Cheap, unapproved, aftermarket crash parts.

     Manufacturers spend years, and millions of dollars, designing and testing the safety and crashworthiness of the vehicles they make.  Crucial to those efforts are the parts that make up every car or truck on the road.  Parts that they have tested and approved are considered “original equipment manufacturer,” or OEM for short.  Vehicles are designed so that all parts are working together to achieve the highest possible safety, efficiency, and performance. 

     When your vehicle is in a crash, the manufacturers strongly recommend that any replacement parts should be “OEM,” to ensure your vehicle emerges from the repair process in as best condition as possible.

     On the other side of this equation are “non-OEM” parts.  These parts are not subject to the same standards and testing as OEM parts, and their use, in the expert opinion of the manufacturers, can threaten the safety and integrity of the vehicles in which they are used. Automakers consider this so important that most vehicle lease agreements prohibit the use of non-OEM parts in the event of a crash.

     Lurking behind these inferior parts is the multi-billion dollar insurance industry.  As these companies process thousands of claims a day, even a few dollars of savings per claim can represent a huge boost to their profitability.  This fight, like so many others, boils down to the safety and pocketbooks of our families versus the profits of a large industry.

     These non-OEM parts can negatively impact a variety of vehicle systems.  This has been proven to be true even in 5 mph crash tests.  In one such test, performed by the insurance industry’s own interest group, a Toyota-made bumper on a Camry buckled, as it was designed, while a non-OEM bumper failed to buckle, and as a result crushed the ends of the bumper support structures.  (See Insurance Institute for Highway Safety, Status Report, Vol. 45, No. 11 (Nov. 3, 2010)). 

     As the insurance industry’s own expert stated, “Aftermarket bumpers need to perform exactly the same as original bumpers in a crash.  Even small changes in design can skew airbag sensors and alter vehicle damage patterns.”  (Quoting from the same report). 

     Sometimes this means a failure of airbags to deploy, increasing injuries.  (See Honda Collision Information, Can an Auto Body Part Affect Safety?)  The non-OEM parts tested by Honda, and the sub-par crash test results that went along with them, would have actually dropped NHTSA’s crash test ratings from five stars to four. (Quoting from same report).    

     Just as often though it causes airbags to deploy in minor low-speed collisions where they were not intended to trigger.  This might lead to unintended injury, but it definitely leads to massively inflated repair costs.  In one Ford test, non-OEM parts caused the repair bill on a Mustang to balloon from $1,250 to $3,000, due to an improper airbag deployment.  (See Ford Crash Tests Non-OEM Structural Parts, On Target: For Ford and Lincoln Wholesalers and the Collision Repair Industry (Summer 2011)). 

     In older vehicles that the owner has happily paid off, a low-speed collision should allow the vehicle to live to fight another day.  An unnecessary airbag deployment sends these vehicles right over the “totaled” line, forcing owners to take on the financial burden of a replacement vehicle.

     Twenty-five years ago this fall, the Ohio legislature enacted a statute to ensure that vehicle owners are notified when non-OEM parts will be used.  The insurance industry is arguing that this statute simply doesn’t apply to them.  They are making this argument, seemingly with a straight face, before the highest court in Ohio, even though the statute specifically includes them. (The statute is found at Ohio R.C. 1345.81).

     Most of us are busy enough in our lives that we don’t have time to be car part experts.  In the days following a collision, peoples’ lives become even busier, as they are washed into the insurance claims process, have to make arrangements regarding their car, may be missing work, may be incurring bills for medical treatment, and are all too often in one degree or another of pain.  Insurance companies count on this chaos.  They are betting that their nickeling and diming on your car will get lost in this confusion.

     However, consumers who are notified about non-OEM parts are then provided with an opportunity to learn about the various crash tests that have been conducted demonstrating that non-OEM parts are less safe than OEM parts.  They may learn that a vehicle with non-OEM parts is often more expensive to fix in a later crash than if the original repair had used OEM parts.  Consumers who are leasing are then given an opportunity to avoid unknowingly defaulting on their standard lease agreement by using non-OEM parts.

     The law sounds fair, doesn’t it?  At its heart it is designed to make sure you are informed about what is going into your vehicle – the vehicle that you put your loved ones in.  The insurance industry feels so strongly about this that they are fighting to the bitter end not to tell us, all so they can scrape a few bucks out of our vehicles.

     (Todd Willis has been directly involved in this fight, recently submitting a brief to the Ohio Supreme Court on behalf of the Ohio Association for Justice urging the Court to make the insurance companies follow the statute.  The case is Dillon v. Farmers Insurance of Columbus, Case No. 2014-0451.  At the time of this writing the Court has not yet rendered its decision).

When judges make headlines and their pictures appear in the news, the accompanying story usually revolves around a tragedy. This phenomenon seems to be more prevalent. There are three branches of government: the Executive Branch (President or Governor), Legislative Branch (Senate and House of Representatives), and the Judicial Branch (Federal and State).

The tradition in this country has been that the Judiciary stays above the politics that takes place in the Executive and Legislative Branches. Judges provide an even temperament in contrast to the two other political branches and apply the law even handedly. In recent times however, the Judiciary has been caught up in big money politics. As a result, we have judges who are currently serving who were put in office through political patronage and party politics. Obviously many of the judges who have risen through the political patronage process are not the best choice for their seat. They lack experience in the judicial process. A frequent topic of conversation among the trial lawyers in town occurs when a new judge is seated whom no one knows. The new judge is running a courtroom yet they’ve never been in the courthouse. Several good trial lawyers in town have aspired to becoming a judge and would make an excellent choice. Conversely, they have found that their skills in the law are no match for the big money party politics in the election process.

When a judge appears in the paper (and it’s typically not a good thing), remember the voters control who maintains judicial seats. At election time we send out a newsletter with our recommendations of who is the best candidate for a judicial position. Some of the candidates are frankly terrible. Some of them have been put in office either through the political patronage process or by the electorate. I urge you to get to know your judicial candidates. There are judges that are now serving on the federal bench (appointed for life) because they were plucked out of the ranks of the state court where they had been installed by appointment by the governor in a political patronage move. Those judges now serve for life as they have been moved up the ladder to make room for new appointments at thelower end of the ladder.