Philadelphia Injury Attorney Blog

On Saturday, February 23rd, a horrific crash occurred during the NASCAR Nationwide Series race at the Daytona International Speedway, when driver Kyle Larson’s 32 race car went airborne, resulting in a 12-car pileup. According to news sources, at least 28 spectators were injured when the car hurtled into the fence, propelling debris through and over the catch-fence that was there to protect the crowd. Fourteen people were sent to area hospitals—two in critical condition. At the time of this writing, the two spectators critically injured spectators remain at the Halifax Health Medical Center.

I was contacted by a reporter the day after the accident. One of the questions he asked was whether or not Daytona International Speedway and its owner, International Speedway Corporation, would be exculpated from liability by the disclaimer found on the back of admission tickets.

The disclaimer states that “the holder of this ticket expressly assumes all risks incident to this event, whether occurring prior to, during, or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all speedways, agents, officers, or directors of Daytona International Speedway, its affiliates and subsidiaries are hereby released from any and all claims arising from the event, including claims of negligence.”

Having been an amusement park accident and recreational torts injury attorney for the last three decades, I am quite familiar with the way promoters operating sports and amusement businesses will attempt to disclaim liability by means of the statement imprinted on their ticket stubs. Such disclaimers are placed on the back of admission tickets to virtually all ski resorts, hockey arenas, football and baseball stadiums, and amusements venues—as well as races.

While many defense attorneys will argue that the fine print on the disclaimers is enough to cover possible claims, each case must be evaluated independently. Invariably, defense argues that attending an extreme sporting event is inherently dangerous, and that spectators can be injured—which is allegedly why they include a written warning on the admission tickets. Often, such cases are confidentially resolved or quashed, and victims are offered a large confidential settlement prior to the filing of a public lawsuit.

From my point of view, as an attorney who has successfully breached such waivers, I would argue that disclaimers only cover normal risks, and that such exculpatory language cannot remove claims of negligence or recklessness, if the owner or operator of the attraction is deemed to have acted inappropriately. In addition, there is often a separate cause of action for product liability, which would not be waived by any such disclaimer. This can come into play if fences or barriers are not properly constructed, or are constructed with improper materials.

In the case of the Daytona crash, this seems to have been the case. The catch-fences, put in place with the express purpose of protecting spectators from flying debris or foreign objects, did not do what they were supposed to do. The same thing happened in a similar crash at the Talladega Super Speedway in Talladega, Alabama, in 2009, when a car hurtled into a catch-fence, injuring 7 people. And, in 2011, IndyCar driver Dan Wheldon was killed when his racecar went airborne and plowed into a catch-fence at Las Vegas Motor Speedway.
The type of catch-fence in use at Daytona International Speedway—25 feet tall, with tightly pulled cable that supposedly leaves little room for flying debris to penetrate—is the same type of fence that surrounds all NASCAR Sprint Cup tracks. NASCAR is said to be planning a review of catch-fence safety.

The amusement park accident and recreational torts injury attorneys of Reiff and Bily have been recognized by their peers as having the highest possible ratings in both legal ability and ethical standards. They are consistently recognized as Pennsylvania Super Lawyers, and are members of the National Trial Lawyers Top 100 Trial Attorneys.

Third party legal cases that involve first party medical payment plans and subrogation interests can be tough to resolve. Quite often, a medical payer will assert a subrogation interest and lien on a third party liability claim, in an effort recover the full payment of medical bills. As Pennsylvania catastrophic injury and car accident lawyers, we believe that all plans, even self-funded ERISA plans, should be forced to reduce such medical liens in proportion to the amount spent on attorneys’ fees for third party recovery.

In the case of US Airways, Inc. v. McCutchen, 663 F.3d 671 (3rd Cir. 2011), the Third Circuit Court reversed, on appeal, the decision of a Western Pennsylvania trial court ruling that a lien had to be repaid in full, with no reduction. The case involved a self-funded ERISA plan, to which the Court applied the traditional equity principle of unjust enrichment. It held that any judgment requiring the victim or plaintiff to provide a full reimbursement to the employer—in this case, US Airways—would constitute inequitable relief, because the amount exceeded the net amount of the victim’s third party liability recovery. The Court ruled that requiring the victim to fully reimburse his or her employer’s health plan would result in a windfall for the employer—who had contributed nothing to the cost of obtaining a third party recovery. Noting that “equity abhors a windfall,” the Court concluded that equity applies to subrogation rights under an ERISA plan. In the case of McCutchen, Counsel successfully argued that, if legal fees or costs were not taken into account, the employer , US Airways, would effectively be reaching into its beneficiary’s pocket—thereby placing the beneficiary in a worse position than if he or she had not pursued a third party recovery in the first place.

A third party lien holder that attempts the full recovery of a subrogation interest, and wrongfully seizes or attaches the funds of another for its own purposes, is committing what is known as a theft- by-conversion. Conversion is when a defendant assumes and exercises ownership or control over property or funds belonging to someone else —without authorization—thereby depriving the other person of property or funds. Whenever a third party lien holder or medical plan claims the right to full recovery, and either refuses to reduce its recovery, or insists on a minimal reduction, the victim needs aggressive legal protection to ensure that he or she will not be cheated by an insurance carrier, adjuster, or independent adjuster who violates the law.

This principle applies to many personal injury cases—particularly, settlements involving a spouse’s right of compensation and/or recovery for loss of consortium—which are “off limits” for the recovery of subrogation interests. In one case, that of ACS Recovery Services Inc. v. Griffin, 676 F.3d 512 (5th Cir. 2012), the Court stated that—unless the plan agreement states specifically that it can seek reimbursement from an award for loss of consortium made to a beneficiary’s spouse—it cannot recover such funds. In other words, the plan, or third party lien holder, would have no rights to recovery on any portion of the spouse’s settlement.

Jeffrey Reiff is a catastrophic injury and car accident lawyer in Pennsylvania who has been recognized as one of the Top 100 Lawyers in Philadelphia and one of the Top Northeast Lawyers. He has regularly been named a Pennsylvania Super Lawyer, and has consistently been rated Superb by Avvo.com.

Recently, 25-year old X Games athlete, Caleb Moore, performed a flip that went wrong, as he clipped the top of the jump and went over the handlebars of his snowmobile. Moore was able to walk off the course, with help, and go to the hospital, where he was diagnosed with concussion. Unfortunately, however, due to complications, he passed away shortly thereafter.

Our thoughts and prayers go out to the family and friends of Caleb Moore, who lived life passionately, and served as an inspiration to everyone involved in the extreme and action sports community. In calling attention to this tragic accident, it is my hope—as a consumer safety advocate and a closed-head trauma and traumatic brain injury attorney—to increase awareness of the seriousness of intracranial injury.

While we all recognize that extreme sporting events are dangerous, we are apt to underestimate the most common athletic injury of all: concussion. Because athletes like Caleb Moore—and countless football, soccer, and hockey players—are able to get up and walk away, they are often presumed to be fine, and are encouraged by well-meaning coaches and parents to return to play before they are ready. More often than not, they end up sustaining many more head traumas during the course of their athletic careers, causing cumulative brain injury. For, even if the first injury is a mild one, every successive bang to the head increases the level of injury to the brain. According to news sources, it is estimated that Caleb Moore had sustained ten previous concussions prior to his fatal accident.

Approximately half a million sports-related concussions occur each year in the United States. At this moment, litigation is pending for close to 4,000 football players with head injuries—now the top trauma-related cause of death among athletes. Fortunately, however, traumatic brain injuries (TBIs) among athletes have been widely researched in recent years, thereby paving the way for greater public awareness and understanding.

Of course, you don’t have to be an athlete to sustain a concussion—or multiple concussions, for that matter. Car accidents, motorcycle accidents, falls, or blows to the head can cause the same damage as snowmobile accidents or dangerous tackles.

Traumatic brain injuries and closed head traumas—aptly called “invisible injuries— are a serious health problem in the United States. Even a minor concussion can cause significant and sustained neurological and cognitive impairment, and can diminish one’s ability to process information at normal speeds. All too frequently, head trauma results in memory impairment, diminished spatial perception, and/or long-lasting emotional, mental, and behavioral changes.

The impact of closed-head injury and brain trauma on a family is devastating. If you or a loved one has sustained an injury to the head and skull, it is imperative that you seek an independent medical examination by a qualified health professional. TBI has the potential to kill--or to cause catastrophic injuries that require life-long care, which can greatly impact the victim’s family members, both emotionally and financially.

Continue reading " Never Underestimate the Power of a Concussion " »

In my practice as a Philadelphia trucking accident and car accident lawyer, I have noticed a disturbing trend. More and more frequently, auto insurance companies and their overzealous lawyers are attempting to intimidate car accident victims into having defense medical exams—misleadingly called “independent medical exams” (IMEs)—in highly inconvenient, faraway locations. There is usually a good reason for the defense to choose a doctor located in a place that requires “burdensome and extensive travel.” It is, quite simply, to harass the injured party.

Generally speaking, the doctor chosen for an IME is “on the payroll”—that is, paid generously by the insurance carrier to write a medical report that is biased in favor of the insurance company. As many physicians watch their incomes decline, with changes in insurance reimbursements, this practice provides a welcome source of revenue. And, indeed, the monetary rewards are great for a report that contests the victim’s complaints.

It is well established, under the law of the Commonwealth of Pennsylvania, that a plaintiff should not be compelled to travel a great distance, unless the insurance company and its attorneys show good cause for the requested examination. Thus, the defense lawyer for the insurance company must prove the need for the exam.

A skilled plaintiff’s counsel should always argue that traveling an unreasonable distance without good cause is unduly burdensome to his or her client--which is especially true if the client is injured and in pain. He or she should also argue that, if an examination by such a doctor-- sometimes called a “painted lady” expert—is needed, the doctor can travel to another office closer to the plaintiff. The Court will generally determine whether good cause exists for travel to an extreme location.

The Pennsylvania Rules of Civil Procedure provide that “when the mental or physical condition of a party is in controversy, the party may be able to submit to a physical or mental examination.” The law further stipulates that this order may be made “only on motion for good cause shown, and upon notice that the person shall be examined, and shall specify the time, place, manner, and scope of the examination, and the person or persons by whom it is to be made.” The law also states that no discovery shall be permitted in the Commonwealth of Pennsylvania that “would cause unreasonable annoyance, embarrassment, oppression, burden, or expense” to any party.

Our office aggressively contests unreasonable independent medical examinations, and we will often assert to the Court—utilizing MapQuest or other services readily available on the Internet—that such an exam requires driving hundreds of miles, for a plaintiff or victim who is already injured. The Courts have generally ruled that requiring a plaintiff to travel in excess of a hundred miles to attend an IME–- without extraordinary proof that a qualified physician in the specialty is not available in plaintiff’s home county or closer location—is unreasonable. In the Philadelphia metropolitan area, with its unparalleled medical resources, this is most often the case.

You and your lawyer should not be afraid to tackle the opposition--namely the insurance company and its defense attorneys—and make it prove to the Court that a good cause exists for an examination by a doctor located far away.

Jeffrey Reiff has litigated thousands of car accidents since 1979. He is a member of the National Trial Lawyers’ Top 100 Trial Lawyers, and has been voted one of the Top 100 Lawyers in Philadelphia. He is regularly nominated as a Pennsylvania Super Lawyer, and has received the AVVO 10/10 People’s Choice Award.