Kentucky Tort Report

April 13, 2007 Tort Report of COAKY decisions

The Court of Appeals issued only one published decision in the civil procedure discovery area in SUTER V. MAZYCH in which the COA found that summary judgment was granted dismissing plaintiff's claims prematurely before having they had a chance to do some discovery.

Ten non-published decisions are "below the fold" addressing

• the filing of a CR 60.02 motion does not toll the time period for filing an appeal;
• an interesting decision addressing the jurisdiction of the board of claims indicating that judges and master commissioners are NOT AOC employees;
• JNOV standards were reviewed;
• Promiximate cause standard was reviewed within the context of a summary judgment motion in a products liability case;
• Splitting a cause of action (eg., property damage versus personal injury action) is prohibited so the danger of filing a property damage claim without JOINING ALL your causes of action can cost you that BI claim if the property damage claim is resolved;
• Admonitions to the jury are presumed to work (and so is unringing the bell - I don't think so);

The decision of Ison v. Thomas, 2006-CA-000289,  was a reminder that in spite of the different statutes of limitation on property damage and personal injury claims (2 years for property; 1 year for torts; and 2 years or more for car accidents) that the claims merge and must all be joined in a single cause of action else claims preclusion can stop the later claim.  Remember the recent Sixth Circuit decision in Rawe v. Liberty Mutual Fire and Cas. see post entitled Ky Torts & Ins: First-party Bad Faith Decision from Sixth Circuit on Kentucky Case Applies Issue Preclusion when plaintiff pursued first party underinsured motorist claim then filed suit later for the first party statutory bad faith claim which was held precluded!

Ison and Rawe should provide some ammunition for plaintiffs to resist the boilerplate insurance defense lawyer's motion to bifurcate first-party insurance (UIM/UM) claims (after settling with the liability carrier / tortfeasor) from the first-party statutory bad faith claims (Unfair Claims Settlement Practices Act) where there is a requirement to join all claims but now no prejudice to the individually named defendant who has been dismissed from the claim, no detriment to judicial economy (and in fact it is economical to joing all claims in one trial against one defendant). 

Of course, bifurcation is alive and well-when you have claims against the insurer's insured for negligence and against the insurer for their bad faith.

NOT PUBLISHED COA DECISIONS FOR APR. 12, 2007

• B.W., NATURAL MOTHER V.  HON. DOLLY BERRY
  APPEALS:  CR 60.02 not toll running of an appeal
  2006-CA-000943
  NOT PUBLISHED: 96
  DATE RENDERED: 4/12/2007
• WOOD V. COM. OF KY AND AOC
  BOARD OF CLAIMS:  Master commissioners and judges are not AOC employees and thus board of claims is not proper forum regarding claims of negligence
  2006-CA-000683
  NOT PUBLISHED: 122
  DATE RENDERED: 4/12/2007
• THOMAS V. BOLTON
  CIVIL PROCEDURE:  Judgment Notwithstanding the verdict (NOV) and standard
  2005-CA-002122
  NOT PUBLISHED: 86
  DATE RENDERED: 4/12/2007
• WHITE  V. CARDINAL INDUSTRIAL INSULATION
  CIVIL PROCEDURE:  Summary judgment; Proximate cause (substantial factor); and products liability standards applicability
  2005-CA-002182
  NOT PUBLISHED:  VACATED AND REMANDED
  DATE RENDERED: 4/12/2007
  An actor’s negligent conduct is a legal cause of harm to another if that conduct is a substantial factor in bringing about the injury and if there is no rule of law relieving him from liability under the circumstances. Bailey v. North American Refractories Co., 95 S.W.3d 868, 871 (Ky.App. 2001). The existence of legal cause is generally intertwined with facts that must be resolved by a jury. Id. at 872. It becomes a question of law for the court only where the facts are undisputed and are susceptible of only one inference.
• ISON V. THOMAS
  CIVIL PROCEDURES:  No splitting causes of action for property damage and personal injuries; merger; pleading affirmative defenses under CR 8.03
  2006-CA-000289
  NOT PUBLISHED: 93
  DATE RENDERED: 4/12/2007
• PATRICK V. CORNETT
  CIVIL PROCEDURE:  Jurisdiction and prior orders of court
  2006-CA-000653
  NOT PUBLISHED: 77
  DATE RENDERED: 4/12/2007
• ALLEN V. LORIE
  CIVIL PROCEDURE:  Summary judgment in fraud case
  2006-CA-001011
  NOT PUBLISHED: 82
  DATE RENDERED: 4/12/2007
• ABELL V. COM.
  TRIALS:  Admonitions are presumed to work
  2005-CA-001936
  NOT PUBLISHED: 84
  DATE RENDERED: 4/12/2007
• KNIGHT V. TECO
  WORKERS COMP:  ALJ and weight and credibility of evidence
  2006-CA-001962
  NOT PUBLISHED: 110
  DATE RENDERED: 4/12/2007
• R & L CARRIERS V. GREGORY
  WORKERS COMP:  Injury defined; Multiplied
  2006-CA-002013
  NOT PUBLISHED: 137
  DATE RENDERED: 4/12/2007

Is a chiropractor qualified to apply the AMA Guidelines? No said the 6th Circuit some years ago.

While reviewing some old postings elsewhere on the net at Daubert on the Web , I found an interesting not-for-publication decision from the Sixth Circuit back in 2001 holding it was not an abuse of discretion to exclude chiropractor's testimony on the applicability of the American Medical Association Guidelines for Evaluating Permanent Impairment.

Taulbee v. Wal-Mart Stores, Inc., No. 99-6690 (6th Cir. Feb. 21, 2001) (unpublished).  Jury finds for defendant in slip-and-fall after plaintiff's chiropractor is barred from testifying using AMA guidelines to describe plaintiff's impairment.  Exclusion affirmed.  District court did not abuse discretion in holding that testimony invoking AMA guidelines should come from licensed physicians, not chiropractors.

Of course, the application of this case would provide an interesting contrast to the recent SCOKY ruling that an injured plaintiff can fill the blanks in lost earnings once a expert (doctor) opines he or she has a permanent injury.  See, SCOKY holds permanent injury warrants permanent impairment of earning power instruction and guidelines for required proof .  Although SCOKY favored expert testimony on earnings, that does not mean that Daubert and the qualifications of the experts are to be thrown asunder.

Lawreader Poses Peer Review Questions on AMA Guidelines and their applicability in Workers Compensation

I was reading a post at LawReader which questioned whether the application of the AMA Guidelines for the Evaluation of Permanent Impairment would survive Daubert scrutiny in workers compensation proceedings.

My initial reaction is that if Daubert is an evidentiary standard on the applicability of expert testimony then it should have no relevance to the applicability to the substantive standard for awarding and measuring damages in a legislatively-created system of compensation since the guidelines are part and parcel of the objective measures for awarding disability benefits.   

With that thought in mind, I went to the premier blog site of Daubert on the Web and searched for the AMA Guidelines to see what popped up in the area of workers compensation.  Nothing did.  One post regarding Tennessee noted an improper application of the ratings in a workers compensation proceeding with some Daubert applications - Harmless Error to Admit Whole-Body Impairment Testimony for Psychological Injury, Tennessee High Court Holds - but nothing regarding peer review deficiencies behind those ratings.

In any event, here is the link to the LawReader story, analysis and citations on Daubert and Workers Compensation:

AMA Guidelines used in kentucky for determining Impairment not based on science or evidence. Not Peer Tested. Will they pass a Daubert Test?

The Ky. legislature has mandated that the American Medical Association “Guides to the Evaluation of Permanent Impairment” be used to determine the impairment rating caused by injury or occupational disease.  See KRS 342.730.   Other states have ditched the AMA Guidelines and adopted their own guidelines.  * * * [click on heading for entire post]

Tort Report of COAKY decisions from April 6, 2007

The Court of Appeals published three torts and insurance law decisions on April 6, 2007:

• In Adkins v. Kentucky National Ins. Co., single premium for underinsured motorist benefits meant no stacking of benefits.  Furthermore, the COA rejected the insured's arguments that the insurer failed to explain the policy changes and the dec sheets adquately.  Digest at KyCases.  2005-CA-002213.
• In Dyer v. Providian Insurance Co., an insured does not get to make a claim for his uninsured motorist benefits when the tortfeasor's insurance company pays him off.  Acceptance of the settlement from the tortfeasor's insurer precludes a UM recovery. Digest at Ky Cases.  2005-CA-002236.
• In Mims v. Western-Southern Agency, Inc., the COA applied the doctrine of substantial compliance against a life insurance company to effect the intent in the life insurance contract to name a sole contingent beneficiary.  The insured did not comply strictly with the change of beneficiary form, and the beneficiary sued after her father's death.  Strict compliance was not required, and substantially complying with the change of beneficiary form was enough.  Click here for Ky Cases digest.  2006-CA-000657.
• The workers compensation exclusive remedy provisions and subcontractors was addressed in Johnston v. Labor Ready, inc.  The COA reversed the circuit court's summary judgment dismissal based on the exclusive remedy provisions.  However, in this case the suit was brought by an employee of the contractor against the subcontractor (who was uninsured).  The COA rejected the circuit court's creation of a "down the ladder" immunity provision.  Digest at Ky  Cases. 2005-CA-001587.

In the "Not for Publication" arena, the following decisions were found:

• Statement of finality for purposes of appeals is NOT controlling.  2005-CA-000125.
• CR 60.02 is not a substitute for an appeal.  2006-CA-000517.
• If the court considers matters outside the record in a motion to dismiss, then it becomes a motion for summary judgment to be reviewed accordingly.  2006-CA-000856.
• Court failed to make adequate findings per Ward v. Housman to support its dismissal. 2005-CA-001748.
• In a bad faith underinsured motorist case, the COA found no palpable error when the judge did NOT bifurcate the bad faith claims from the UIM claims.  2005-CA-002183.
• Failure to obtain proper service will invalidate a default judgement. 2006-CA-000720.
• Res judicata was applied on a jurisdiction issue from a district court decision.  2005-CA-002464.
• KRE 408 did not prohibit the admission of settlement offers for purposes OTHER than showing liability.  Furthermore, when the judge answers a juror's question, he canNOT alter the instructions!  2005-CA-002322.
• A presumption exists that third parties will not commit intentional criminal acts against a stores patrons in a case alleging negligent security.  2005-CA-002537.
• In a medical negligence case "reasonable probability" is not a bare possibility but rather a probability greater than 50 per cent.  Furthermore, in the payment of damages, the hospital was not entitled to paying less to the plaintiff based upon the medical bill discounts.  2006-CA-000136.

Insurance: Underinsured motorist benefits (UIM) - Single premium, multiple vehicles, no stacking

Kentucky Tort and Insurance Law Blog has analyzed a recent COA published decision addressing stacking of UIM and single premium policies - No Stacking UM When Single Premium Charged for Multiple Vehicles!

Tort Report of COAKY decisions from March 30, 2007

The "Tort Report" for the week for decisions for March 30, 2007 consists of one published decision addressing  a claim for fee sharing against diet drug and Fen-Phen lawyer Melbourne Mills, Jr. aka "the Man" who along with the other diet drug lawyers in that class action lawsuit and settlement (William Gallion, Shirley Cunningham, and Stan Chesley) are having troubles of their own at the hands of litigation filed against them by Angela Ford on behalf of a large number of the settlement class who question the attorney fee distributions. 

However, Mr. Mills got sued by a non-lawyer former employee of his firm claiming he agreed to pay her a million dollars plus a shiny car for her ideas and assistance in starting up the Fen-Phen class action suit.  Jury agreed and awarded Ms. Sawyer the million dollars, but the judge reconsidered and set it aside based upon the statute of frauds since the agreement was not in writing.  Sawyer appealed, and COAKY agreed with the circuit court judge and affirmed.

There were three NPO (nonpublished opinions) from COAKY, but nothing from SCOKY.   An appeal from district court was dismissed as too late and affirmed by COA;  appeals must include all parties and an insurance company which had been bifurcated must be invited to the appeal too.  Finally, the bread and butter issues in trying a case popped up and were address regarding counsel arguing matters not in evidence, failure to use an avowal to preserve error for appeal when judge ruled medical records inadmissible, and the answering of the jury's questions during deliberations rests with the judge's discretion.

SAWYER V. MILLS
CONTRACTS:  STATUTE OF FRAUDS

2006-CA-000697
PUBLISHED: AFFIRMING (WINE)
DATE RENDERED: 3/30/2007

Fayette Circuit Ct - Hon. James Ishmael

Sawyer appeals TC's entry of a JNOV following jury trial that awarded her $900,000. This is the case where Sawyer alleges that her employer, Attorney Melbourne Mills, Jr., agreed to pay her $1 million (and a shiny, new luxury car to the tune of $65,000) for her work in starting up the now-famous Phen-Fen class action lawsuits. The background facts are that after Mills (and his co-horts) received their respective share of the Phen-Fen settlement, Sawyer and her husband met with Mills to discuss how much she would be paid on their agreement. Mills ultimately agreed to pay Sawyer the above sums during the meeting, and agreed to reduce it to writing. Mills never signed the agreement, but did make total payments of $165,000 before refusing to pay any more. What Mills did not realize was that Sawyer had secretly tape-recorded their conversation and soon filed suit to enforce their contract. Prior to trial, Mills sought summary judgment on the argument that the Statute of Frauds barred the claims since the oral agreement entailed Mills making monthly payments of $10,000 for 107 months and therefore could not be performed within 1 year. Although initially agreeing with Mills' argument, the TC nevertheless allowed the case to proceed to trial where the jury ultimately found that Mills had agreed to pay Sawyer a bonus once the class action settlement was received and awarded her the $900,000. Mills filed a Motion for JNOV and again asserted the Statute of Frauds argument. This time, the TC agreed and granted the motion.

On appeal, Sawyer argued that the writing requirement of the Statute of Frauds was satisfied here through the combination of the tape recorded conversation and the checks Mills did write for the required monthly installments before refusing to pay more. The COA rejected this argument and distinguished on their facts the cases cited and relied upon by Sawyer to support same. The COA also rejected Sawyer's alternative argument that the statute was not applicable since the contract could conceivably be performed within 1 year by Mills making a lump sum payment. The COA merely had to cite to the written agreement prepared by Sawyer's attorney clearly stating that the payments would be stretched over 107 months and Sawyer's own admission that the parties did not contemplate performance in less than 1 year. The fact that it could be completed in 1 year by a voluntary act of one of the parties does not render the Statute of Frauds inapplicable when the parties specifically agree that the contract will extend beyond 1 year. The COA affirmed the TC's "well-reasoned" ruling in all respects.

As digested by Chad Kessinger. JEFF'S AUTO SERVICE, INC. V. FARM BUREAU INS. CO. OF INDIANA
APPEALS:  Time for filing appeal is mandatory; untimely means dismissal
2006-CA-001504
NOT PUBLISHED:
DATE RENDERED: 3/30/2007

Here default judgment was granted in district court, appeals to circuit court and lost, but no motion filed for discretionary review to COA within 30 days.  Court has no plenary authority to ignore jurisdictional requirement for appeal, to wit: timely filing.

HORN V. HORN AND ALLSTATE INS. CO.
CIVIL PROCEDURE:  Revival following death
APPEALS:  Indispensable parties
2005-CA-000369
NOT PUBLISHED:
DATE RENDERED: 3/30/2007

Defendant died, but plaintiff failed to revive action within one year of defendant's death as required by KRS 395.278.  Interestingly enough this claim also included a statutory bad faith claim against Allstate arising from the car accident in which the plaintiff was injured which was held in abeyance pending the underlying personal injury claim.  The appellant failed to name the administrator in the notice of appeal, and indispensable parties must be included. 

MCGINNING V. THEUER, MD AND SURGICAL ASSOCIATES
CIVIL PROCEDURE:
TRIALS:  Arguments (may not address facts not in evidence or not reasonably inferred); Jury questions (judge's discretion to answer); avowals and proffers of medical records (failure does not preserve error)
2006-CA-000105
NOT PUBLISHED: AFFIRMING (TAYLOR)
DATE RENDERED: 3/30/2007

In this medical negligence case, McGinnis had an endoscopic retrograde cholangiopancreatography performed on him by Dr. Jones who found a surgical clip that had previously  been placed on McGinnis's common hepatic duct and that the clip was preventing McGinnis's liver bile from draining into her small intestine. It is undisputed that Dr. Theuer inadvertently placed the clip on McGinnis's common hepatic duct during surgery to remover her gallbladder.

Dr. Jones referred McGinnis to Dr. Mariano S. Dy-Liacco for treatment. Dr. Dy-Liacco surgically removed the clip and reconnected McGinnis's hepatic duct to her small intestine.  The matter was ultimately submitted to the jury and the jury found that Dr. Theuer's treatment did not fall below the acceptable standard of care. Consequently, the trial court entered judgment dismissing the claims against Dr. Theuer and Surgical Associates P.S.C.

McGinnis contends the trial court erred by granting Dr. Theuer's motion to limit the scope of McGinnis's closing argument.   Although it is well-established that counsel is permitted great latitude in its closing argument. Owensboro Mercy Health System v. Payne, 24 S.W.3d 675 (Ky.App. 2000), counsel may not, however, argue facts in closing that have not been admitted into evidence or cannot be reasonably inferred from the evidence. Garrett v. Commonwealth, 48 S.W.3d 6 (Ky. 2001).

Here,  McGinnis wanted to argue in closing that the two clips placed in the unidentifiable location were evidence that Dr. Theuer was negligent.  The problem for McGinniss, however, ws that not one expert testified as such.

During its deliberation, the jury forwarded a note to the court containing the following two questions: [1.] If the jury finds for Mrs. McGinnis will the doctor lose[sic] his license to operate? and [2.] Does her [McGinnis's] insurance cover any, if so how much of these costs? How much out of pocket expenses were incurred?

Generally, the decision whether to answer questions posed by the jury rests within the sound discretion of the trial court. 89 C.J.S. Trial § 810 (2001). Absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. 

The Court informed the jury it was “unable to comment on either of these questions.”  In this case, the jury requested “facts” that were not put into evidence during trial. Indeed, information concerning insurance coverage is clearly inappropriate for the jury to consider in reaching a verdict. Also, whether Dr. Theuer would retain his medical license was irrelevant to the issue of his negligence.

Accordingly, COAKY concluded the circuit court did not abuse its discretion by refusing to answer the questions submitted by the jury during deliberation.

With regard to the issue on the admissibility of the medical records, McGinnis did not request that the medical records be placed in the record by avowal or by proffer. As such, the issue concerning the evidence was not preserved for review. See, 116 S.W.3d 481.

The judgment of the Shelby Circuit Court is affirmed.

WINE, JUDGE, CONCURS.

PAISLEY, SENIOR JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION.  " I fully concur with the majority opinion dealing with the appellant's claims of error regarding the jury instructions, the questions submitted by the jury, and the trial court's decision not to allow the introduction of the medical records. I respectfully dissent, however, regarding the trial court's ruling limiting the scope of counsel's closing argument."

Insurers Experiencing Eye-Popping Profits and Increases in Reserves

]In the face of screams for the need for tort reform and claims of skyrocketing premiums in the insurance industry and constant denials there is no insurance cycle and excessive reserves contributing to the physicians leaving the state (whew.... that was a long intro), I found the following story from the Courier-Journal a little "in your face" for the tort reformists and a big "gotcha" too.

Why are the profits increasing?  One reason given in the A.P. story is the insurers are placing more risk on the policy holders.  Sharing the risk of loss, or spreading the risk of loss, is what insurance is all about, and buying something you hope you don't need is security of mind, and thus the advertising slogans of "Good hand", "Good neighbor", "The Rock", "The Umbrella", "On your side", etc.

But, thrusting the risk on the unknowing for the purpose of increasing profits and profitability when you are a state government regulated industry is a major problem and a black eye for insurance company regulators.

As the story states:

Hunter, a former Texas state insurance commissioner, added that he expects the industry to continue to do exceptionally well because it is pushing more risk and more cost onto policyholders.

"They're making homeowners and business owners take on more of the risk through high deductibles, caps on replacement costs and other limitations," he said. "And they're refusing to renew tens of thousands of homeowner and business property policies, especially along the coasts."

And A.M. Best is no slouch and no slave of those opposing the tort reform agenda which makes this one of those factoids beyond cavil.

Add to this a DOJ report on "Medical Malpractice Insurance Claims in Seven States, 2000-2004" showing that most medical claims files opened are closed without payment, and you get a more complete picture of the money NOT being spent on claims and why profits are up.

Insurers' profits soar, but so do complaints [click on heading for entire story]

The headline numbers were eye-popping: Allstate reported a record $5 billion profit for 2006. State Farm Insurance's profit climbed 65 percent for the year. St. Paul Travelers' earnings rose sixfold in the fourth quarter, American International Group's grew eightfold. * * *

Rating agency A.M. Best estimates that the property-casualty industry earned $68 billion in 2006, up from $49 billion in 2005, and that profits could total $62.2 billion this year if the storm season is relatively benign.

As a result, the policyholder surplus -- essentially reserves to cover future claims -- grew to a record of nearly $500 billion in 2006, A.M. Best estimates.

There also has been a change in how the industry makes its profits.

Insurance companies traditionally made most of their money by investing consumers' premiums, mainly in bonds. But increasingly, they're relying on so-called underwriting profits, which are premiums minus losses and administrative expenses.

Kentucky Web Site Contains Costs of Surgical Procedures - This can be useful in your settlement packages to the insurance company

A post at the Kentucky Law Review (aka Blog) re: Medical: Kentucky Web Site Lists Quality and Comparative Information on Kentucky Hospitals including cost information contains useful cost information for various procedures from state hospitals.  You may have to do an internet search to find the "DRG" for your procedure but that takes less than a minute to give you a really good idea on the cost of certain surgical procedures.  Of course, this will not include physician fees, physical therapy, follow up visits, presurgicals tests and consults, etc.

Tort Report for Week ending Mar. 23, 2007 (SCOKY & COA)

For the week ending Mar. 23, 2007, both SCOKY and COAKY rendered decisions.  See, eg. Vol. 2007:14 - SCOKY (SUPREME COURT OF KENTUCKY) DECISIONS FOR Mar. 22, 2007 and Vol. 2007:15 - COURT OF APPEALS DECISIONS FOR MARCH 23, 2007 for more details at the Kentucky Court Report.

SCOKY had no tort or insurance law decisions. Period.

The Court of Appeals, however, had one published and no "not to be published" tort decisions.

Baker v. Coombs 2005-CA-001993, COA 3/23/2007, involved how a Jefferson County attorney, Ron Coombs, who while representing one of the parties in a divorce got embroiled in the controversy when he allowed himself to become an escrow agent for stock certificates to secure annual payments to the ex-wife, but never took possession of them.  The certificates were later sold by the husbnd (then ex-husband), lost most of his assets, and then committed suicide.  The ex-wife lost a substantial portion of her financial benefits from the the property settlement agreement and then looked to her ex-husband's attorney for damages.

Attorney testified he had asked his client for the certificates when the agreement was negotiated and after, but they were never provided. Wife sued attorney, claiming that the failure was a deliberate effort to prevent payment and reduce inheritance to husband’s minor child. She claimed that attorney failed to follow the terms of the agreement and that he had a fiduciary duty to her.

Judge Combs in affirming the trial court's grant of summary judgment dismissing the claims, held the attorney merely signed the agreement as an attorney signing a pleading under CR 11, not a party, but even if he were a party, as de facto escrow agent, attorney did not have an affirmative duty to the adverse party to obtain the certificates because his only affirmative duty would have been to keep and secure the certificates once they came into his possession. Additionally, CA rejected wife’s claim that she was a third-party beneficiary of attorney’s contract with his client, because the contract was to represent the client against the putative third-party beneficiary.

However, there are some unanswered questions which divorce lawyers and business or transaction lawyers need to know:

• In this scenario, the ex-husband's lawyer owes no duty to the ex-wife to obtain, escrow, or disclose the stock certificates intended for security were never received, or those received were not those covered by the agreement, or to report to the ex-wife's attorney.
• Plus, Rule 11 signature on pleading did not require attorney to seek out the certificates or create a third party duty to the other side/ex-wife.
• But did someone have a duty and, if so, who dropped the ball?
  • Did the ex-wife's lawyer have a duty to follow up and get assurances or proof of compliance with the agreement?
  • If the lawyer had that duty, then would the ex-husband's attorney incur responsibility for his response if incorrect?
  • If the ex-wife's attorney did have such a duty, is any statute of limitations tolled pending the period of representation OR would it accrue upon this decision by the court?  or should election to pursue a claim against the wrong attorney affect the outcome?  See, eg http://162.114.92.72/Opinions/2002-SC-000424-DG.pdf

"Delay, deny, defend" - Insurance Company Mantra Subject to News Stories

I thought it time to post on some of the news stories and blog posts pertaining to insurance companies fighting to  pay claims under the mantra of "Delay, deny and defend".

Here is the Anderson Cooper story - Insurance companies fight paying billions in claims. And here is a copy of the transcript from that CNN story.

And if you are in a minor impact crash and get hurt, former insurance industry insiders say, insurance companies will most likely try doing the same thing to you: delay handling your claim, deny you were hurt and defend their decision in drawn-out court battles.  It's the three Ds: delay, deny and defend.

That, in a nutshell, is the strategy adopted by several major auto insurance companies over the past ten years, a lot of lawyers, former insurance company insiders and others tell CNN.

With nowhere to go, Allstate and others bet you'll take what they offer and walk away. It's right in the training manuals we obtained from Allstate: force "smaller walk-away settlements."

Shannon Kmatz, a former claims adjuster for Allstate, told us she would offer as little as $50 dollars in some cases. Poor people would take it, she said, fearing that if they didn't, they'd get nothing at all.

Roxanne Martinez didn't take it. She sued and a jury awarded her $167,000 dollars. But that verdict took three years.

Allstate is betting you won't wait, you won't sue and you'll take what you get and walk-away. And that, say our experts, has been a good bet for Allstate and others. Accident victims have been walking away from billions of dollars that insurers now keep for themselves.

Allstate would not grant an interview or answer our questions. Instead, they sent an e-mail saying they didn't think CNN would deliver a fair report. I hope you will watch our report tonight and decide for yourself who is being fair.

And don't forget David Bernadelli's book, From Good Hands to Boxing Gloves, commented upon in a Business Week story entitled In Tough Hands At Allstate . 

And click here for a BlawgSearch for Allstate Insurance Company.

And, Is Allstate Really Allsnake?  from Tort Deform.

And, For Kentucky Insurance Bad Faith Lawyers: Albuquerque Lawyer Awarded $11 million