MEDICARE SET ASIDES (MSAs) General Overview & Thresholds For MSAs

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1 Fall 2005 One of the more dynamic changes to hit the workers compensation scene has been the Medicare Set-Aside (MSA). The MSA has introduced an entirely new component to claims handling and settlement. Like it or not, Medicare and the MSA are here to stay and we in the workers compensation industry will simply need to adapt to meet the challenge. This article provides a cursory overview of the Medicare program, presents a general outline of MSA thresholds, highlights basic MSA funding and administration, and alerts the reader to the differences between the MSA and Medicare liens. What is Medicare? Medicare is a federal health insurance program for individuals 65 years old or older, individuals under 65 years of age with certain disabilities and people of all ages with End Stage Renal Disease. The program started in 1965 and is part of the Department of Health and Human Services (HHS). The Centers for Medicare and Medicaid Services (CMS) is the federal agency within HHS responsible for administering the Medicare program. The Medicare program is presently broken into three main parts. Part A and Part B comprise what is referred to as the original Medicare plan. In general, Part A covers most in-patient hospital services while Part B provides coverage for a host of out-patient treatment and certain hospital services not covered under Part A. Part C offers different options and additional coverage through an array of health care arrangements provided by private insurers. Beginning in 2006, the Medicare program will add a prescription drug plan (Part D). MSA-Legal Background In 1980, Congress passed the Medicare Secondary Payer Act (MSP), codified at 42 U.S.C. 1395y, in an effort to control the increasing costs of Medicare. Section 1395y(b)(2)(A) states, in pertinent part, that Medicare will not pay for items and services for which a Medicare beneficiary has received payment from a primary plan (workers compensation is considered primary) or can reasonably expect to receive payment from a primary plan. Further, 42 C.F.R (a) provides that if a lump sum compensation award stipulates that the amount paid is intended to compensate the individual for all future medical expenses required because of the work-related injury or disease, Medicare payments for such services are excluded until medical expenses related to the injury or disease equal the amount of the lump sum payment. Although the above provisions were on the books for almost 20 years, it was not until 1999 that the Federal Government really began to make a concerted effort to assure that injury related claims were paid by primary sources and that workers compensation settlements considered Medicare s interests. As part of this campaign, CMS became more involved in the workers compensation arena and established the MSA framework to protect Medicare s interests. MSA Basics & Threshold Issues The MSA is the arrangement established by CMS through which the parties to a workers compensation settlement allocate or set aside a sum of money from the settlement to cover future anticipated Medicare covered expenses related to a claimant s ATTORNEYS AT LAW EST FLORIDA LAW UPDATE A Newsletter On Developments in the Law for Clients and Friends of Vernis & Bowling Web Site: MEDICARE SET ASIDES (MSAs) General Overview & Thresholds For MSAs Mark Popolizio Miami Workers Compensation Department compensable work injuries. Medicare views workers compensation settlements as either commutation or compromise settlements. A commutation settlement compensates workers for future medical expenses related to the work injury. A compromise settlement compensates current or past medical expenses. MSAs are only required in commutation settlements. But let s not get too excited. Despite Medicare s distinctions, the vast majority of workers compensation settlements will almost always possess both a compromise and commutation aspect. This means that most settlements will pass Medicare s initial screening test for MSA consideration. Medicare s distinction between commutation and compromise settlements raises an interesting question in the context of controverts. From Medicare s perspective, the fact that the carrier denies liability, disputes causal relation, or asserts some other reason why it is not liable for an injury or condition does not by itself exonerate the carrier from taking Medicare s potential interests into account. Rather, Medicare looks to the agreement to determine if the settlement intends to provide compensation for future medicals, improperly attempts to maximum other aspects of the settlement to Medicare s detriment, or otherwise improperly attempts to shift the burden of the claimant s medical care to Medicare. Along these lines, the typical controvert settlement agreement usually contains a provision discharging the carrier for any potential liability for future medicals which would, therefore, arguably make it a commutation settlement. Thus, even controverts may qualify for MSA review. CMS has established certain thresholds, which I refer to as Classes, regarding when a MSA is required and needs to be approved by CMS. Under current CMS/Medicare thresholds, a CMS approved MSA is required in the following two cases: Class 1: The claimant is a Medicare beneficiary at the time of the settlement and the settlement is greater than $10, OR, Class 2: The total settlement is greater than $250, (inclusive of fees, costs and annuity pay out) and the claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date. (Please note that CMS has reserved the right to adjust the 250k / 30 month threshold of Class 2 in the future). If your case meets either threshold, the settlement needs to include a CMS approved MSA. Under the Class 2 threshold, CMS looks at the total settlement amount over the life and duration of the settlement agreement in determining whether the $250, prong has been met. This is important to remember when your settlement includes an annuity since the $250, prong could be met through payment of the up front money and scheduled periodic payments over the life and duration of the settlement. Consideration must also be given to Medicare s liberal view of reasonable expectation. Per CMS memoranda, reasonable expectation includes, but is not limited to, situations where the claimant has applied for SSD, has been denied SSD but anticipates appealing the decision or refiling for SSD, or is 62 years and 6 months old (in the last case the claimant would be eligible for Medicare within 30 months based on age). As you will note, the phrase CMS approved MSA is used in the Class 1 and Class 2 context. This phrase is used to distinguish between Class 1 and Class 2 situations (where a CMS approved MSA is required) from other situations where a MSA may be required based on specifiic circumstances. This brings us to the question: Is there a Class 3 MSA? That is, are there situations where a MSA is required, or should otherwise be included, even though the facts do not place the case outside the Class 1 and Class 2 review thresholds. Some in the industry argue that MSA s are limited to the Class 1 or Class 2 thresholds. Others argue that MSAs may still need to be included although the facts place the case outside the Class 1 and Class 2 review thresholds. Based on the intent of the MSP and the memoranda and directives issued by CMS, the author believes that MSA consideration is not limited to Class 1 and Class 2 review thresholds. Moreover, in light of the potential liability, the author believes it is wise to err on the side of caution and examine each claim individually to consider including a MSA, although the facts may not necessarily place the case within Class 1 or Class 2. Examples of possible Class 3 MSAs may include: Claimant is on SSD based on the the work injury and will become a Medicare beneficiary shortly after the settlement or Claimant is 64 at time of settlement but will turn 65 and become entitled to Medicare shortly after the settlement. There could be another situations based on the circumstances. In the Class 3 context, formal approval of the MSA by CMS would not appear to be required in most cases. Another important threshold matter involves CMS/Medicare s recent announcement of the low dollar threshold. By memorandum dated July 11, 2005, CMS/Medicare announced that it will no longer review MSA proposals for Medicare beneficiaries where the total settlement amount is less than $10, (This relates to Class 1). Note that the total computation of the $ figure includes, but is not limited to, future medical, wages, fees, annuity payout totals and repayment of any Medicare conditional payments. However, CMS/Medicare stressed that this is simply a work load review threshold and does not relieve the parties from considering Medicare s interests. Thus, a MSA may still be required even though the settlement is under $10, There are considerable consequences if the parties fail to include a MSA when required or fail to fund the MSA in the amount determined by CMS. Medicare could disregard the settlement provisions and apportion the lump sum between indemnity and medical per 42 C.F.R Medicare could consider the whole settlement amount as medical for future anticipated Medicare expenses and refuse to provide the claimant with Medicare coverage for his/her work related injuries until the entire settlement amount is used to cover Medicare expenses related to the work injuries. CMS also has a direct priority right (and right of subrogation) against several parties, including the carrier. MSA Funding & Administration The MSA may be funded through a lump sum payment or structured arrangement. CMS has issued rules and guidelines pertaining to each funding option which need to be followed by the parties. The MSA can be administered by the claimant (self administered MSA). However, a recent CMS memo suggests that self administration may not be allowed in situations where the claimant has been declared incompetent, has a designated representative payee or has an appointed guardian/conservator. Alternatively, the MSA can be administered by a private company (third party custodial MSA administration). MSA vs. Medicare Liens It is important to distinguish between the MSA and Medicare liens. The MSA deals with the obligation to protect Medicare s interests for future Medicare covered expenses related to the claimant s work injuries. On the other hand, Medicare liens relate to payments made by Medicare on behalf of the claimant for his/her work injuries and the carrier s obligation to reimburse Medicare for said payments (Medicare refers to these payments as conditional payments ). Accordingly, it is also important to make sure that the Medicare lien issue is addressed when settling claims. Conclusion The MSA is an evolving area of the law requiring detailed analysis of several factors. Given the complexity of the subject, the author recommends consulting with counsel specializing in Medicare compliance. If you have any questions regarding the foregoing subject please do not hesitate to contact the author at (305) or

2 Average Weekly Wage Larry M. Feinstein DeLand/Central Florida Workers Compensation Department When determining the average weekly wage of a selfemployed claimant, the claimant s net income should be used (gross receipts less business expenses). Two recent claims effectively illustrate this point. In case #1, a volunteer policeman was injured in the course and scope of his employment in that capacity. While he had no earnings in his role as a volunteer, he did have a masonry business in which he reported $87,000 of income for the year preceding his compensable accident. The carrier and former defense counsel divided his gross annual income by 52 weeks and an average weekly wage of $1, was determined to be appropriate, leading to payment of temporary benefits at the maximum compensation rate for that year. Following receipt of the file, the claimant s tax records were reviewed and it was noted that of the claimant s gross income of $87,000, his net income (after business expenses were deducted) was approximately $9, Breaking that figure down to a weekly basis, this resulted in an average weekly wage of $ with a corresponding compensation rate of $ Unfortunately, this file was not brought to the attention of this firm until after the 104 weeks of temporary benefits had been paid. As a result of the change in the average weekly wage and compensation rate, the carrier will be attempting to recoup almost $46,000 against future indemnity (if any). In case #2, the claimant was employed by her husband s trucking company and both the claimant and her husband reported that she earned $900 per week during the appropriate period preceding her industrial accident. Again, upon review of the claimant s tax returns, it was revealed that while her gross income was $10,800 for the 12 weeks preceding her accident, her net income after business expenses was approximately $6,700. Those business expenses included fuel charges, vehicle repair and other on-the-road charges. Unfortunately, 88 weeks of temporary benefits were paid prior to the referral of the case to our office. While the claimant had been receiving $594 (the maximum compensation rate) per week, she should have received only $ Again, this employer/carrier will now be attempting to recoup almost $19,500 in overpayment against any additional temporary or permanent benefits that may become due in the future. These two cases highlight the importance of determining the correct pay earned by a claimant during the appropriate time period preceding his or her industrial accident. The determination of an average weekly wage for a self-employed claimant must include an offset for business expenses. See Florida Timber Products v. Williams, 459 So.2d 422 (Fla. 1st DCA 1984). The Williams Court points out that expenses to consider include labor, fuel and repair bills, insurance, and other various business expenses which should be deducted from the claimant s gross receipts in order to arrive at the proper average weekly wage. Florida Statute (Determination of Pay) states that the injured employee s average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. In the case of Happle Solar Contractors v. Happle, 547 So.2d 1035 (Fla. 1st DCA 1989), the Court highlighted the fact that the average weekly wage is to be measured by how much the claimant earned, not necessarily how much he was actually paid during the time period. When presented with wage information from a self-employed individual or an individual who either controls or has access to control of the company records, or is an independent contractor, it is imperative to look beyond the stated weekly wage by the claimant and obtain additional information to correctly determine the average weekly wage. The tax returns of a claimant are discoverable and IRS Form 4506-T should immediately be sent to the claimant for his or her signature and subsequent submission to the Internal Revenue Service to obtain the appropriate records. In addition, it may be prudent to obtain a sworn statement from the claimant and detailed questions should be asked regarding gross wages, business expenses, net income, etc. A side benefit may enure to the employer/carrier if the claimant were to misrepresent herself or himself regarding actual wages earned. Since a tax return is not due until the following April of a tax year, it may be prudent to have the claimant deposed or have a Request for Production issued seeking any and all documents reflecting wages earned, business expenses incurred, and tax returns for prior years. Such returns may reflect a method or pattern which can assist in determining whether earnings reported should be reduced from a gross income to a net income. In the two cases above, it may be difficult to recoup the overpayment and these examples clearly demonstrate the importance of correctly determining the average weekly wage at the earliest possible time. Otherwise, the net results could be gross! If you have any questions or would like more information on the issues discussed in this article, you may contact Larry Feinstein at (386) or VERDICTS Jerry M. Hayden (Miami) successfully defended a claim by an injured worker who sustained a compensable injury to her upper extremity in the matter of Idania Leal v. Budget Rent-A-Car/CNA Claims Plus, Inc. The claimant sought a determination of compensability regarding other body parts of her body along with two years of temporary benefits, plus penalties and interest. Despite a course of treatment spanning several years, the Court accepted the employer's position that the claimant reached MMI for her work related injuries without impairment or disability. Consequently, benefits were denied. Stephanie D. Alexander (Pensacola), obtained a Workers Compensation Final Order denying and dismissing all benefits with prejudice, in Craig McPherson V. Gaddie Marine, Inc., and The Gray Insurance Company. Three months after Claimant was terminated, he alleged a pre termination injury and sought authorization of cervical surgery. Judge Laura Roesch, in the March 2004 final order, was unpersuaded that Claimant suffered a compensable injury, denied and dismissed all benefits sought with prejudice. G. Jeffrey Vernis (Palm Beach) tried the case of Goscinski v. East Coast Valet, Inc., in Palm Beach County in March of The Plaintiff brought a personal injury action resulting from a nonimpact automobile incident. The Plaintiff was a passenger in a medical transport vehicle being transported to JFK Medical Center, when, she claims, a vehicle being operated by East Coast Valet pulled in front of the medical transport vehicle, causing it to suddenly brake, throwing the Plaintiff from her seat to the floor of the vehicle. She claims to have sustained a femoral head fracture and a pelvic fracture as a result of that fall. The Plaintiff underwent three hip replacements and is confined to a wheelchair, most likely, for the rest of her life. The Plaintiff s lowest demand, prior to trial, was $750, On the second day of trial, Mr. Vernis negotiated with the Plaintiff a non-monetary settlement, which included a voluntary dismissal with prejudice in exchange for no payment. In a week long jury trial in which the issues of liability and damages were hotly contested, Steven Sundook and Jason Himschoot (Fort Myers) obtained a zero, defense verdict in the matter of Lorraine & William Morris vs. Grant Nixon & American Steel Fabricators Inc. The Plaintiff was a Lee County transit bus driver operating a county bus on its regularly scheduled bus route. The Defendant driver was following the bus in a flat bed truck. He attempted to pass the bus when it appeared to be stopping at a bus stop on a two lane urban roadway. The Plaintiff/bus driver denied that she was slowing to stop at a bus stop, and instead contended that she was slowing to make a left turn as required on the route. After the large flat bed truck began to pass the bus, the bus made its regularly scheduled turn. The truck broadsided the bus at the intersection. The Plaintiff claimed that the Defendant truck driver violated a Florida Statute prohibiting passing within 100 feet of an intersection, and was driving at an excessive speed. Defendants claimed the Plaintiff violated another Statute requiring a driver of a vehicle leaving a lane of travel to do so safely and yield to a vehicle already in the process of passing. There was evidence that the bus driver failed to use her turn signal before the truck attempted to pass the bus. It was argued by Defense counsel that the flat bed truck driver had the right to be in the oncoming lane, attempting to pass the bus and that the Plaintiff, bus driver failed to look to determine it was safe to turn before leaving her lane. The Plaintiff claimed a permanent neck injury and cervical annular tear. She was ultimately discharged from her position as bus driver due to failure to meet the 50 pound lifting requirement of the job. She claimed over $800, in total damages at trial, including the loss of the excellent job benefits provided by Lee County, such as health insurance and full retirement plan. She was months away from vesting in some of those benefits at the time of her discharge. She claimed that she would have worked up to retirement, for another 17 years at the transit position, that she loved her job and was loved by her coworkers and job supervisors. She also claimed to not have job skills to obtain anything other than an entry level clerical type office position, which was the type of job she held at the time of trial. The Jury returned a verdict finding that the Defendant, the flatbed truck driver, was not negligent and not a cause of the accident or the Plaintiff s claimed injury. The Trial Court denied the Plaintiff s Motion for New Trial. There is a Motion for Attorneys Fees pending against the Plaintiffs pursuant to Proposals for Settlement made by Defendants. Jerry M. Hayden (Miami) successfully defended a claim by an injured worker who sustained a compensable industrial accident involving an injury to his lower back with complaints of chronic pain and depression in the matter of Rosabal v. Burlington Coat Factory/Lumbermen's Underwriting Alliance. The claimant had not worked in over two years and sought a determination of PTD, treatment in various medical specialties and attendant care. Despite years of ongoing treatment, including an extensive course of pain management and psychiatric care, the court accepted the employer's position that the claimant was malingering and found that he reached MMI for his work related injuries without any residual impairment (0%) from a physical or psychiatric standpoint. Consequently, benefits were denied. G. Jeffrey Vernis (Palm Beach) tried the case of Richards v. Luxury Imports of Palm Beach before a jury in March of The Plaintiff brought a claim of conspiracy to commit fraud and violation of Florida s Deceptive and Unfair Trade Practices Act as a result of a motor vehicle transaction. The Plaintiff alleges that he went to the Lexus dealership to purchase a pre-owned Lexus motor vehicle. He entered into an agreement to purchase the vehicle for $11,500.00, and provided a $1, deposit. Over the next several weeks, the dealership attempted to obtain financing for the Plaintiff. Ultimately, the Plaintiff was referred to a lending source called Carcorp. Carcorp then purchased the vehicle from Lexus for $11, and sold it to the Plaintiff for $16, The Plaintiff claimed that Carcorp and Lexus conspired to commit fraud and that this transaction constituted a violation of Florida s Deceptive and Unfair Trade Practices Act. The case was tried before a jury for four days and after a lengthy deliberation, the jury returned a verdict of no liability on behalf of the dealership. We have filed our motions to tax attorney s fees and costs against the Plaintiff.

3 NEWS about THE FIRM Please vist our Vernis & Bowling Web Site at: ANNOUNCEMENTS & SPEAKING ENGAGEMENTS We are pleased to announce Dirk M. Smits (Florida Keys) is a Board Certified Local Government Lawyer and Supreme Court Certified Mediator. We are pleased to announce that Larry Wang (Jacksonville) has been added to the list of faculty members for Lorman Education Services. G. Jeffrey Vernis (Palm Beach) has been chosen as one of the 2005 Florida Legal Elite, a select group comprising the top 2% of lawyers practicing in Florida. As a selective Florida legal elite, by Florida Trend Magazine, Mr. Vernis was included in the Florida Trend Magazine s Legal Elite July 2005 issue. Larry Wang (Jacksonville) was a featured speaker May 3, 2005 at The Workers Compensation Continuum: Reducing Costs During the Safety, Return to Work, and Vocational Rehabilitation Process. Carl Bober (Fort Lauderdale) was a featured speaker at two CEU Institute Seminars, the first held in Miramar, FL and another held in Orlando, FL. His presentations were entitled: Adjusting Toxic Mold Claims: A Legal Update. John Unzicker (Pensacola) has been appointed to the 2005 Florida Bar Workers' Compensation Rules Advisory Committee. Vernis & Bowling presented a Legal CEU Accredited Seminar on Friday September 30 th to over 200 attendees in Atlanta, Georgia. John Unzicker (Pensacola) was a featured speaker at the Tallahassee Claims Association s Summer Conference on July 14th. G. Jeffrey Vernis (Palm Beach) is scheduled to be a speaker at the Third Florida Property and Casualty Claims Conference on October 17, 2005 in Lake Mary, Florida. Mr. Vernis is scheduled to present in the complex litigation session on Agent v. Independent Contractor Liability. G. Jeffrey Vernis (Palm Beach) is scheduled to present at the Seventh Annual South Florida Workers Compensation Claims Conference on October 21, 2005 in Davie, Florida. Mr. Vernis is scheduled to speak on Employer s Liability, Bad Faith and Emerging Exposures in E & O. Vernis & Bowling, upon request, offers national, in-house accredited and non-accredited seminars for its clients. Please call or National Director of Client Services & Development - Tammy Bouker (561) / The Florida Law Update is published by Vernis & Bowling for the benefit of clients, friends and fellow professionals on matters of interest. The information contained herein is not to be construed as legal advice or opinion. We provide such advice or opinion only after being engaged to do so with respect to particular facts and circumstances. This publication may be considered advertising material under the rules of professional conduct governing attorneys in some states. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. We are pleased to announce the addition of the following attorneys to the Vernis & Bowling Team: Associations. Dean M. Viskovich Miami Dean Viskovich was born in Long Island, New York. He graduated from the State University of New York at Albany with a Bachelor of Arts degree in Political Science in Dean obtained his J.D. from Nova Southeastern University in Since being admitted to the Florida Bar, he has also been an active member of the American Bar, Florida Bar, New York State and Suffolk County Bar Dean has extensive trial and litigation experience in personal injury and general insurance defense litigation. Prior to joining Vernis & Bowling of Miami, P.A., Dean was in private practice from 1999 to 2005 with the Law Offices of Dean M. Viskovich, P.A. In addition, Dean was in-house trial counsel for Nationwide and Royal Insurance Companies for ten years. Further, he has been qualified and has testified as an expert in Court, both at the circuit and county levels, on behalf of providers and insurance companies regarding attorney fee issues. AREAS OF PRACTICE Bodily Injury Litigation, Liquid Propane (LP) Gas Defense, Premises Liability, Products Liability, and Personal Injury Protection (PIP), Uninsured/Underinsured Motorist (UM) Coverage, Insurance Coverage Analysis and Automobile Liability. Tracy Hirsch Slatoff Ft. Lauderdale Tracy Hirsch Slatoff was born in Miami, Florida. In 1990 she graduated from the University of South Florida with a Bachelor of Arts in Political Science. Tracy graduated from Nova Southeastern University School of Law in Fort Lauderdale, Florida in While in law school Tracy served as a legal intern to Judge Kenneth Ryskamp, United States Federal Judge for the Southern District of Florida. Tracy has dedicated her practice to representing employers, insurance carriers and their servicing agents in the defense of workers compensation claims. Tracy s clients include Amerisure Mutual Insurance Company, GAB Robins, Target Stores, Federal Express Corporation and Sedgwick Claims Management Services. Presently, Tracy is working in the firm s Broward County office located in Fort Lauderdale, Florida. Tracy is a member of the Florida Bar, Federal Bar Association, Palm Beach County Bar Association and the Fort Lauderdale Claims Association. Tracy published The Employment Relationship, Covered and Excluded employment, Defenses to a Claim and the Statute of Limitations, Workers Compensation Certification Review Course, April 1999 Julie Harris Terry Miami Julie Harris Terry was born and raised in Detroit, Michigan. She went on to graduate from the University of Michigan, earning a Bachelor of Business Administration in While attending the University of Michigan, she was involved in many philanthropic endeavors with her sororal organization, Alpha Kappa Alpha Sorority, Inc. Specifically, she helped found "AKA-Demics", which was a tutorial service offered to underprivileged children in the community. She served as Treasurer to the same organization and helped to raise thousands of dollars in scholarship funds, which were distributed to local area high school students. Also, Julie was an active member of the student government. Subsequent to graduating from the University of Michigan, Julie worked as a University Financial Aid Administrator in the Special Minority Services Division lecturing on financial services and programs for underprivileged students. She was also selected to be a spokesperson at the Detroit Auto Show in Julie received an academic scholarship to attend St. Thomas Law School. While attending St. Thomas, she was a member of Black Law Students Association, the Catholic Lawyers Guild, the Appellate Moot Court and Trial Court Teams, and the Peter Faye Inns of Court. Continuing on with an interest in providing services to underprivileged members of the community, Julie taught "Street Law" to local area high school students. Additionally, Julie served as Summer Federal Law Clerk to the Honorable William Hoeveler in 1992 and as a law clerk for the City of Miami Attorney's Office and Florida Department of Transportation during She graduated from St. Thomas School of Law in After graduating from St. Thomas, Julie went on to serve as an Assistant State Attorney under Katherine Fernandez Rundle. Subsequent thereto, she began practicing insurance defense with an emphasis in premises liability and bodily injury. She is a trial attorney who focuses on defending personal injury protection and bodily injury claims. Her memberships include the Florida Bar and is admitted to practice for the United States District Court for the Southern District of Florida. She is a member of the Dade County Bar, National Bar Association and Black Lawyers Association. She continues to remain actively involved in community organizations. Outside interests include swimming, traveling, scrap booking and dancing. She finds person fulfillment in organizing fund-raisers and working with children.

4 Fall 2005 ATTORNEYS AT LAW EST ALABAMA LAW UPDATE A Newsletter On Developments in the Law for Clients and Friends of Vernis & Bowling Web Site: DEFENDING PRODUCTS LIABILITY CASES IN ALABAMA Marc C. Dawsey Birmingham Products Liability Department A prima facie case for liability under the Alabama Extended Manufacturer s Liability Doctrine ( AEMLD ) requires a plaintiff to show: (1) that a manufacturer manufactured, designed, or sold a defective, unreasonably dangerous product; (2) that the product reached the consumer in substantially the same condition in which it was sold; and (3) that the product injured the plaintiff when it was put to its intended use. Beam v. Tramco, Inc., 655 So. 2d 979, 981 (Ala. 1995). A defective product is one that is unreasonably dangerous, i.e., one that is not fit for its intended purpose or that does not meet the reasonable expectations of the parties. Id. at 981. In Alabama: the manufacturer of a product is not an insurer against all harm that may be caused by the use of the product, and the manufacturer or designer is not obligated to produce an accident-proof or injury-proof product. Likewise, the failure of a product does not presuppose the existence of a defect. Proof of an accident and injury is not in itself sufficient to establish liability under the AEMLD; a defect in the product must be affirmatively shown. Townsend v. General Motors Corp., 642 So. 2d 411, 415 (Ala. 1994). For a seller of an allegedly defective product to be liable under the AEMLD, a seller must have been in the business of selling items of the kind in question. Mathis v. Harrell, Inc., 828 So. 2d 248, 258 (Ala. 2002). This requirement allows isolated or occasional sellers to avoid liability. Mathis, 828 So. 2d at 258. In Dennis v. American Honda Motor Co., 585 So. 2d 1336, 1339 (Ala. 1991), the Alabama Supreme Court held that contributory negligence relating to accident causation will not bar recovery in an AEMLD action. Because the purpose of the AEMLD was to protect consumers from defective products, allowing a plaintiff s contributory negligence regarding accident causation to defeat liability would defeat the doctrine s purpose. Id.at However, the court reiterated that valid defenses (including the lack of causal relation) were available against an AEMLD action. Id. The defense of no causal relation has been compared to the sealed package doctrine discussed in Kroger Co. v. Goodhue, 206 So. 2d 882 (Ala. 1968). Essentially, this defense is available to a retailer or distributor of a product rather than an original manufacturer. Id. To establish the defense, a Defendant must establish that there is no causal relation in fact between his activities in connection with handling the product and its defective condition. For example, the defendant may show that he is in the business of either distributing or processing for distribution finished products; he received a product already in a defective condition; he did not contribute to this defective condition; he had neither knowledge of the defective condition nor an opportunity to inspect the product which was superior to the knowledge or opportunity of the consumer. Atkins v. American Motors Corp., 335 So. 2d 134, 143 (Ala ) For example, in Townsend v. General Motors Corp., 642 So. 2d 411, 426 (Ala. 1994), the Alabama Supreme Court held that summary judgment was proper for the distributor of an allegedly defective garbage compaction unit. Although evidence of a design defect had been presented, the distributor did not participate in the design or manufacture of the garbage truck and there was no evidence that the Defendant was aware of any accidents which would have put the Defendant on notice that the positioning of riding platforms at the rear of the unit was unreasonably dangerous. Townsend, 642 So. 2d at Because the Defendant did not sell the truck under his own trade name, did not employ any design engineers and had no reason to question the manufacturer s design, the Defendant only acted as a middle man in furthering the product s journey from its manufacturer to the purchaser. Id. at 425. In Charpie v. Lowes Home Centers, Inc., 930 F.Supp (M.D.Ala. 1996), a plaintiff injured his fingers when he tried to adjust the blade of a table saw after the saw was shut off but still running. As a result of his injuries, the plaintiff brought an AEMLD action against Lowe s, the store which sold the saw. Id. In response to the plaintiff s claim, Lowe s moved for summary judgment based on a lack of causal relation, as well as other affirmative defenses. In support of its summary judgment motion, Lowe s presented evidence that: (1) it was in the business of distributing finished products and that it was not customary for Lowe s to do anything to the table saws other than place the boxes on the shelves; (2) it did not do anything to the saws; consequently, if the table saw was defective, it was defective when received; (3) it did not contribute to the defective condition of the saw because the saw was packaged in a sealed box and never opened; and (4) it had no knowledge of any defective condition and, because each box was shut, no personnel at Lowe s had any opportunity to inspect the saw which was superior to the knowledge or opportunity of the plaintiff. Although the court easily concluded that Lowe s had established the first three elements of the no causal relation defense, the court addressed the plaintiff s contention that Lowe s had superior knowledge because of its size and specialty in selling construction tools: To hold that a distributor has superior knowledge because he sells table saws would render the causal relation defense illusory. Simply being in the business of selling a particular item such as a table saw, without something more, is insufficient to establish superior knowledge of the defendant. It is axiomatic that if a distributor sold the item that is alleged to be defective, that distributor will almost always be in the business of selling that product. To impute superior knowledge on every distributor who is in the business of selling a particular item would almost always defeat the causal relation defense. Id. at Further, the court noted that Alabama law does not require a distributor to be a guarantor of the design of every product he sells; the law does not force a distributor to second-guess the decisions of a manufacturer concerning the proper design of the product when the distributor undertakes no activity with the product except placing the product on a shelf for sale. Accordingly, the court granted Lowe s summary judgment. Products liability cases are complex, fact intensive, and involve many issues. This article is intended to give a brief introduction to some of these issues involved in defending products liability claims in Alabama. Each case will involve nuances specifically related to the plaintiff s defect allegation and the particular product at issue. If you have any questions pertaining to products liability, please do not hesitate to contact the author at:

5 NEWS ABOUT THE FIRM (2) Alabama Office Openings We offer local and regional, full service legal representation to businesses, insurance companies, self-insureds, governmental entities and individuals in all counties and Judical Circuits throughout ALABAMA, FLORIDA and GEORGIA. OF BIRMINGHAM, LLC OF SOUTHERN ALABAMA, LLC 2100 SouthBridge Parkway, Suite 650 Birmingham, Alabama Telephone: (205) Facsimile: (205) TAX ID: St Emanual Street, 1st Floor Mobile, Alabama Telephone: (251) Facsimile: (251) TAX ID: Vernis & Bowling, upon request, offers national, in-house accredited and non-accredited seminars for its clients. Please call or National Director of Client Services & Development - Tammy Bouker (561) / The following language is required pursant to Rule 7.2, Alabama Rules of Professional Conduct: No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.the Alabama Law Update is published by Vernis & Bowling for the benefit of clients, friends and fellow professionals on matters of interest. The information contained herein is not to be construed as legal advice or opinion. We provide such advice or opinion only after being engaged to do so with respect to particular facts and circumstances. This publication may be considered advertising material under the rules of professional conduct governing attorneys in some states. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. We are pleased to announce the addition of the following attorneys to the Vernis & Bowling team: Marc C. Dawsey Birmingham Marc Dawsey was born in Orlando, Florida, and was raised in Auburn, Alabama. He graduated from Auburn University with a Bachelor of Science degree in Pre-Medicine with a major area of concentration of Psychology. After college, Marc worked two years as a surgeon s assistant to a group of orthopedic surgeons in Birmingham, Alabama. Marc earned his J.D. from The Cumberland School of Law at Samford University in He was admitted to the Alabama Bar in 1998 and is licensed to practice law before all state and federal courts in Alabama. Marc has litigation experience representing defendants in general liability, workers compensation, breach of warranty, products liability, professional malpractice, employment discrimination, premises liability, uninsured/underinsured motorist liability, common carrier liability and insurance coverage issues. AREAS OF PRACTICE Personal injury litigation; premises liability; professional malpractice; products liability; breach of warranty; workers compensation; employment discrimination. BAR & COURT ADMISSIONS All state courts in Alabama, the Federal District Court for the Southern, Middle and Northern Districts of Alabama, and the United States Court of Appeals for the Eleventh Circuit. James T. Patterson Mobile Jim Patterson was born in Mobile, Alabama in He graduated from Samford University in Birmingham, Alabama in 1982 with a B.A. in Public Administration. After college, Jim entered the United States Navy and was commissioned as an officer. After flight training, he served as a Naval Aviator in various capacities with Atlantic Fleet aviation squadrons, carriers and air wings, retiring from the service in He then returned to his alma mater to study law, receiving his Juris Doctorate form the Cumberland School of Law cum Laude in Jim is admitted to practice before all Alabama and Florida state courts, and is admitted to all federal district and bankruptcy courts in Alabama. Jim brings a wealth of military and life experience to his law practice and is known for his ability to think outside the box when developing case strategy. Jim s areas of practice include general liability defense, workers compensation defense, medicare compliance/medicare set-aside agreements, medical malpractice/longterm care defense, elder law issues, appellate practice in both Alabama and Florida, employment law, extra contractual, construction claims, and probate matters. He is a member of the Alabama State Bar Association, the Florida Bar, the Mobile Bar Association, the Alabama Defense Lawyer s Association, and the Defense Research Institute. Published appellate decisions include Algayer v. The Health Center of Panama City, 28 Fla. L. Weekly D2680 (Fla. 1st DCA 2003), Ex parte Vongsouvanh, 795 So. 2d 625 (Ala. 2000); JWM v. Raines, 779 So. 2d 247(Ala. Civ. App. 2000); and Hooker Construction v. Walker, 825 So. 2d 838 (Ala. Civ. App. 2002).

6 Fall 2005 ATTORNEYS AT LAW EST GEORGIA LAW UPDATE A Newsletter On Developments in the Law for Clients and Friends of Vernis & Bowling Web Site: The Birth of Loser Pays and the Death of Joint & Several in Georgia-Tort Reform under the 2005 Senate Bill 3 Ian N. Matthes Atlanta General Liability Department Offers of Settlement Can Result in Recovery of Attorney s Fees merit, for the potential use of a Code Section offer of settlement letter. These letters should be prepared as early in the litigation as possible to entice settlement or dismissal, and to place more of the anticipated legal expenses into potential future calculation of fees. Creating a personal exposure to the plaintiff places financial risk with the plaintiff, who traditionally had very little economic investment in the litigation process. Vernis & Bowling has experienced an excellent record of success in Florida with proposals of settlement and the recovery of attorney fees for their clients. We look forward to achieving similar successes in Georgia. During the 2005 Session, a comprehensive tort reform package was passed and signed into law. Senate Bill 3 (SB 3) took aim at Tort Reform with caps on noneconomic damages, an offer of judgment rule and other tort reform provisions-all bundled in a package with other provisions that are specific to medical malpractice cases. While the sponsoring legislators may have been motivated in large measure by sky-rocketing medical malpractice costs, it may turn out that the offer of judgment rule is the most important provision of the law. Georgia is now the fifth state in the U.S. with an offer of judgment rule that shifts attorneys' fees to the party that did not accept the perfected offer. SB 3, in creating Code Section , allows parties involved in tort claims to serve on adverse parties offers of settlement to encourage settlement or to avoid frivolous litigation. If the offer is properly perfected and subsequently rejected or ignored, attorneys fees may be awarded to the prevailing party. The new Code provides that, in cases where the complaint sets forth a tort claim for money a party can submit to the other party an offer to settle the tort claim. If the offer meets certain requirements set forth in the Code, and the offer is not accepted within the offer period (at least thirty days are required), the offeree shall pay the offeror s reasonable attorneys fees and costs incurred after the last offer is rejected if the judgment finally obtained by the offeree was not at least 25% more favorable than the last offer. The Code contemplates that multiple offers can be made and specifically states that if an offer is made and not accepted, there is no preclusion to subsequent offers being made in accordance with the statute. After the verdict or judgment is rendered, a successful offeror may request a separate bifurcated hearing to determine whether the opposing party presented a frivolous claim or defense. If the trier of fact determines that a frivolous claim or defense was asserted, damages may include reasonable attorneys fees and expenses of litigation. What does this mean for claims professionals? First and foremost, claims professionals need to thoroughly evaluate all written offers of settlement. All terms of the offer must be agreed to in order to avoid a response being deemed a counter-offer (and thus a rejection). In Jones v. Frickey, 2005 WL , Ga.App., (2005), the Georgia Court of Appeals recently affirmed that under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense. Citing Wilkins v. Butler, 187 Ga.App. 84, 85 (1988). While SB 3 says that the offer of judgment rule should apply to all pending cases, it is likely that the rule will be held to be substantive (versus procedural), and should thus only apply to cases filed after the February 16, 2005 signing of SB 3. See Polito v. Holland, 258 Ga. 54, (1988). Florida courts, in evaluating their similar "loser pays" rule, found that the rule was substantive rather than merely procedural. See Timmons v. Combs, 608 So.2d 1 (Fla.1992). Claims professionals should evaluate new suits, especially those with limited The End of Joint & Several Liability SB 3 also replaced Code Section and Code Section , which formerly provided that a plaintiff could recover any or all of a judgment from any of the tortfeasors found jointly and severally liable to the plaintiff. Under this rule, a plaintiff could collect the entire amount of their judgment against any of the defendants. The old Code Section exception to this rule for actions against more than one defendant stated that if the plaintiff was partially at fault for the alleged damages, the trier of fact may have apportioned the damages among those liable and whose fault was greater than that of the plaintiff. Under this exception, there was no finding of joint and several liability and each tortfeasor was responsible only for the amount of damages assessed to them. The old exception was permissive, as a trier of fact may apportion damages, but did not require apportionment. SB 3 now apportions fault, requiring that in cases against multiple defendants, the trier of fact must first determine and reduce the damages for the plaintiff=s comparative fault, after which the court shall (not may ) apportion the damages among those defendants found liable according to each defendant s individual percentage of fault. Thus, the damages become the sole responsibility of the defendant against whom they are awarded, with the plaintiff only recovering from any defendant the amount that defendant was found individually liable for at trial. This effectively abolishes the doctrine of joint and several ability as it previously existed. As such, there is no longer a right of contribution between the defendants. Furthermore, the common law rule regarding comparative negligence has been codified. Under Georgia s rule, plaintiffs with fifty percent or greater fault for the alleged injuries or damages cannot recover any damages. Finally, under certain conditions, the trier of fact must consider the fault not only of the parties to the case, but also of empty chair non-parties, which are persons or entities that are not named in the lawsuit but may have liability. In these cases, the trier of fact assigns a portion of fault against them solely for purposes of assessing the percentage of fault of the named parties in the lawsuit. These assessments against non parties is inadmissible in a later action brought against the non parties. Other Provisions SB 3 also addresses venue issues (forum non conveniens), the admissibility of certain expert opinion evidence, production of claimant medical records in medical malpractice actions, the admissibility of offers of assistance or statements of compassion or mistake by health care providers, caps on noneconomic damages in medical malpractice cases, and health care agency relationships. If you have any questions or would like more information on this legislative change, or the issues discussed in this article, you may contact Ian Neil Matthes at (404) or

7 NEWS ABOUT THE FIRM New Office Opening We are pleased to announce the opening of the firm s Atlanta, Georgia office. We offer local and regional, full service legal representation to businesses, insurance companies, self-insureds, governmental entities and individuals in all counties and Judicial Circuits throughout ALABAMA, FLORIDA and GEORGIA. Vernis & Bowling of Atlanta, LLC Northpark Center 1200 Abernathy Road, Suite 1700 Atlanta, Georgia Telephone: (404) Facsimile: (404) TAX ID: Web site: Vernis & Bowling, upon request, offers national, in-house accredited and non-accredited seminars for its clients. Please call or National Director of Client Services & Development - Tammy Bouker (561) / The Georgia Law Update is published by Vernis & Bowling for the benefit of clients, friends and fellow professionals on matters of interest. The information contained herein is not to be construed as legal advice or opinion. We provide such advice or opinion only after being engaged to do so with respect to particular facts and circumstances. This publication may be considered advertising material under the rules of professional conduct governing attorneys in some states. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. We are pleased to announce the addition of the following attorney to the Vernis & Bowling team: Ian Neil Matthes Atlanta Ian Neil Matthes was born and raised in Atlanta, Georgia. He graduated magna cum laude from Georgia State University with a Bachelor of Arts degree Political Science in Ian earned his J.D. from The University of Georgia School of Law in He was admitted to the Georgia Bar in 1997, and is licensed to practice law before all state courts in Georgia. Ian has litigation experience representing defendants in automobile liability, general liability, premises liability, uninsured/under insured motorist liability, common carrier liability and insurance coverage issues. Ian has also served in-house with P&C insurance companies as a national litigation manager and director of litigation management, managing litigation staff and procedures, as well as class actions and "Bad Faith" claims. AREAS OF PRACTICE Automobile Liability, General Liability, Premises Liability, Uninsured/Underinsured Motorist Liability, Common Carrier Liability, and Insurance Coverage Issues BAR & COURT ADMISSIONS Georgia Bar 1997, All Georgia State Courts EDUCATION Graduate The University of Georgia School of Law, J.D., Undergraduate Georgia State University, Bachelor of Arts in Political Science, Honors Magna cum laude

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