Participation Trophy Syndrome – Who is running the asylum?

Martin Luther King never was given a participation trophy. If Dr. King were alive today he wonder, how did we get to the point where we are willing to put up with this?

What to do when your neighbor or landlord’s tree falls and injures you.

There are several cases in Iowa; one was even argued all the way to the Iowa Supreme Court. Today I see there is another involving a toddler from Fontanelle.

How can I help with my workers' compensation or car accident case?

Record keeping for out-of-pocket expenses for medical, Rx and other things if kept organized is a huge help. It's not unusual for clients to not provide medical expenses or records to show what wasn't covered by health insurance and what they've paid. When that happens it's almost impossible for the lawyer to reconstruct it. Asking the lawyer to prove a dollar amount without the proper record keeping is like hoping a sailboat suddenly appears on the beach with your name on it. Like the sailboat, prove just doesn't instantaneously appear because you want it to.

Ohio’s Minimum Liability Limits are a Paltry $12,500

Ohio is a miserable state to get in a car accident. Presently I have a client who died in Ohio from getting t-boned at an intersection collision. The financial minimum limit one has to carry on car accidents in Ohio is a paltry $12,500.00 per person. Can you believe that? You can kill a person and only have to pay the dead person’s estate $12,500.

How to insure your child's car while away at school without assuming liability for the driver's negligence

Often times I get questions asked online that should be added as blog posts. This is one of them.

Question:

Our son is a full-time college student in Washington, and he is about to purchase car insurance. He is still a resident of Iowa, where my wife and I live. Would it be wise for our son and me to buy the car together and tag and title it in Iowa so we can put him on our umbrella policy? Or should he just get his own and stay off his parents' policy? The question is this: we claim him as a dependent on our income tax returns and are co-signers on his student loans, so would we be liable in the event of a car accident? If so, would we be ahead to put him on our policy where we have a $1.4 million umbrella rather than have our son take out a minimum liability policy of his own in Washington?

Answer:

I think this is one of the wisest questions a parent can ask. I too asked it when my children were just learning to drive. Here is what I did. I purchased a car for them with the understanding they had to pay me back and to insure and maintain it. Rather than put my name on the title, because I didn’t want the liability exposure, I titled the car in their name and placed a lien on the title in my name. They signed a loan repayment agreement that included language giving me the right to repossess without notice if they failed to maintain insurance or place the collateral at risk. Placing the collateral at risk could include driving while under the influence of alcohol. I kept the extra set of keys.

Your situation may be a little different than mine. I own sizeable assets and didn’t want to place them at risk. You may not have that challenge and simply want to have a large insurance policy in place to protect the child. Remember placing a car in your name, makes you the owner and under Iowa law the owner is legally responsible for the permissive driver’s negligence, which may include drivers your son gives permission to operate the car or truck. I didn’t want that kind of exposure or hassle with trying to control who drives the car. With their being at school and away from home it’s tough for us to really know what is going on.

The umbrella insurance policy you have at $1.4 million may or may not be enough coverage. Here is what I mean by that. The umbrella policy may or may not include a provision to extend the underlying car insurance coverage for underinsured and uninsured motorist coverage. Read the policy and see if it does. I also write blogs on the Des Moines market for Injuryboard.com and on the Lombardi Law Firm website blog, The Verdict, and have covered this subject just recently on WJRN Talk Radio, Racine, Wisconsin. If you write to me I can provide the links. See if this works for you to listen.

File name: 02~25~08nmlomb.mp3:
Download link: http://www.mediafire.com/file/dytnxgt3gi9

And here is the InjuryBoard link:

Driver Safety: Starts before you turn the ignition key

Posted by Steve Lombardi | February 11, 2009 10:25 AM

The biggest road hazard you may face this and next year are uninsured motorists. If you didn’t have enough to worry about with double bottomed semi-truck trailers, pieces of retread tires and...

And the link to The Verdict article with the same title.

I hope this answers your questions, if not write to me again. Here is Iowa Code section 321.493 where I’ve underlined the important language.

321.493  Liability for damages.

1. a.  Subject to paragraph "b", in all cases where damage is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage. For purposes of this subsection, "owner" means the person to whom the certificate of title for the vehicle has been issued or assigned or to whom a manufacturer's or importer's certificate of origin for the vehicle has been delivered or assigned. However, if the vehicle is leased, "owner" means the person to whom the vehicle is leased, not the person to whom the certificate of title for the vehicle has been issued or assigned or to whom the manufacturer's or importer's certificate of origin for the vehicle has been delivered or assigned. For purposes of this subsection, "leased" means the transfer of the possession or right to possession of a vehicle to a lessee for a valuable consideration for a continuous period of twelve months or more, pursuant to a written agreement.

Is your cheerleader better off with tort reform immunity statutes?

In the past few months the issue of Cheerleading dangers has been put to the forefront here and at InjuryBoard. In a Fox News video report the lawsuit between cheerleaders and the Wisconsin School District is explored.  

In this post let us examine the assumption that all tort reform is good, saves money for everyone and encourages participation in school activities.

I've sat in the stands at football games and basketball games watching the cheerleaders perform. Okay well maybe I don't always watching the moves but sometimes I do. What may seem like an exciting cheer move can, if the acrobatic move goes bad, lead to ruin for all involved. At a Drake Basketball game a season or two ago one aerobatic move resulted in the cheerleader hitting the floor extremely hard when the base missed catching her. It stunned the crowd waiting to see if she could get up or would be taken out on a stretcher. In that case she got up and was lead to a chair to get her wits together. The moves these cheerleaders are doing should be a concern to every parent whose child participates in sports, but especially in Wisconsin.

Here is what I mean by this. Let's say five Iowa State, University of Iowa or Drake University Cheerleaders, both male and female, are involved in a move where one small young lady is tossed into the air. If the move fails and the young lady lands on her knee, shoulder, spine, neck or head and injuring herself catastrophically, who pays for the costs of medical care and rehabilitation? What parents have to ask themselves is if the young lady is their child or if the students at the base are their children, who can get sued and how will the hundreds of thousands of dollars to care for the injured young woman be covered?

What parents have to ask themselves is if the young lady is their child or if the students at the base are their children, who can get sued and how will the hundreds of thousands of dollars to care for the injured young woman be covered?

In this Wisconsin case Brittany Noffke, and Kevin Bakke, both cheerleaders were told by the instructor to practice a move in the hallway. While executing the move Noffke's head came into contact with the tile floor resulting in a cracked skull.

Wisconsin law prohibits participants in contact sports from suing each other for unintentional injuries.

The Wisconsin Supreme Court is considering the question of whether cheering is (under the Wisconsin statute) considered to be a contact sport. Seem like an odd question to you? If you can't believe that anyone would consider cheering a "contact sport", think about the contact between the cheerleaders head and the floor. Wasn’t that contact? In essence the Court will decide what type of contact was contemplated by the legislature.  Contact with the floor or contact between cheerleaders may not be contact at all under this Wisconsin law.  The statute doesn't list those sports the legislature wanted to be included as contact sports. So what is a contact sport in Wisconsin? And in this instance it may not be the right kind of contact. You may be lead to ask the question: So contact may not be contact?

Is volleyball, wrestling, track and field, soccer, chess, badminton or golf contact sports?

Well one has to consider what the legislature intended to mean when it wrote the contact sport statute. What is sport and what is intended contact? Contact with anything, including the floor or contact with just opponents? In this case the Plaintiff doesn't want cheering to be a contact sport, because then she can't sue to recover for costs of mending a cracked skull. The Defendant does want cheering to be a "contact sport", because then he gets immunity. The Court of Appeals Of Wisconsin ruled in favor of the  Plaintiff when it ruled that cheering isn't a contact sport.  The Court also ruled that the school district is immune from suit. According to that ruling the kid who did what he was told by the cheer coach can get sued but the adult coach can't be sued.

Not all tort reform is fair, equitable and for some it doesn’t save money.

Is this fair? Let's see, kid does what instructor tells him to do, the way the instructor told him and in the location where he was told to do it - he gets sued for doing it wrong and in a location where there was no mat and his parents get to sit through depositions while the teacher gets to go to practice. Certainly Kevin’s family won't be encouraged to allow participation in this "non-contact sport" in the future. He'll be playing chess for the next three years. Certainly not golf because it includes steel shafted clubs and hard-as-a-rock balls. Not tennis because of the titanium metal rackets and 100+ mph serves that can take out an eye. And forget doubles because two players on the same side of the net could easily strike each other with a racket or collide and tear an ACL. Volleyball probably isn't probably a contact sport either, although it's out due to spiking the ball into a players face. Do they have competitive typing in Wisconsin?

Most tort deform, I mean reform (sorry) goes like this: Okay if we take away the right to sue it's gotta be good for everyone involved. Right? Wrong!

The Appeal Court sided with the Plaintiff saying because cheerleading doesn't involve contact between opponents it's not a contact sport as intended by the statute. Which means Brittany and her parents can sue Kevin. The Supreme Court is considering whether it interprets the statute the same and the Court of Appeal's decision that Brittany can't sue the school. The Court of Appeals found the Spirit Rules are not laws or regulations that apply to the School District and it's staff.  The Spirit Rules were never adopted by the school district and therefore can not be used to establish negligence; with regard to proper training or spotting. So while coaches may abide by the rules, or not abide by them, in the end in Wisconsin they get to walk away from responsibility for their lack of oversight. Meanwhile Kevin and his parents, along with their homeowner's insurance company, assuming they had insurance, get to defend this pimply faced kid who was doing what he was told to do by the adult supervisor.

Later today I'll publish the entire decision here at InjuryBoard along with the Wisconsin Supreme Court oral argument announcement of October 8, 2008.

And we wonder why this next generation is confused?

I bet the Wisconsin legislature intended to encourage participation through immunity to participants of contact sports. Or the legislature intended to at least take away any disincentives. But in reality the way tort reformed immunity works is at odds with the idea of what tort reform does. Tort reform is intended to save everyone money and to encourage participation in doing things society wishes to encourage.

Does immunity encourage participation? Not from Kevin’s standpoint.

Does immunity save everyone money? No, because all the Kevin’s who participate in any sport whether it’s considered contact or non-contact need to be insured with both an umbrella liability policy that covers catastrophic injury to anther and health, life and disability insurance policies that cover their own child’s risk of injury while participating in school sports. Instead of the school district carrying one policy and covering all participants, every parent in the district that can afford one and cares about their child’s economic future need to purchase insurance coverage.

Does this type of tort reform make sense? No, not if you’re the one who might get sued. Yes from the standpoint of selling insurance it works very well; because you get to sell a lot more policies.

The real assumption made in all tort deform is this: I or my family will never be injured and need the civil justice system to help me.

Assumption number two: If I get sued I don’t care if I was right or wrong, I just don’t want to be responsible.

What does make sense? We have kids who are just trying to get good grades and go on to college while staying active and learning to be well rounded adults. Their parents want them to participate and to know kids are safe; or, when they are injured that the school district will take responsibility or at least have some insurance to assist with taking care of medical costs. In this instance the cost of participating in this non-contact sport that participation lead to a cracked skull is shoved all onto another kid and his family. Kevin and his family get to shoulder the burden. If the school district had one policy covering everyone and said if each acts reasonably and not negligent they aren’t legally responsible then everyone saves money and participation is encouraged.

Tort reformers assume that without immunity everyone sues everyone for anything. And that’s just one more unfounded assumption created by the insurance industry that has resulted in selling more insurance. Adopting that kind of tort reform simply shifts the burden from those responsible for the injury to those who are injured. And in this instance, the Wisconsin contact sports immunity statute has muddied the water even more allowing the teacher a get-out-jail-free card while forcing parents to buy more liability insurance covering catastrophic injury.

Clear as mud right? I know we lawyers are terrible with talking in ways that lay people are too lazy to learn. So allow me to try in simple terms to help you understand how to protect yourselves.

Until people can get that thought through their heads let's consider what you can do to protect yourself.

1. Buy an umbrella policy that covers your child’s liability when participating in school activities.

2. Buy a disability policy that does the same.

3. Buy a health insurance policy with unlimited lifetime coverage.