Question:

Answer: In Iowa you would have the right to file a workers' compensation claim and yes it would provide for compensation, called permanent partial disability payments that are intended to compensate you for loss of earning capacity. The problem is this is a scheduled member and the loss of function compensation is pretty limited. But let's consider another option.

Depending on what company owned the equipment your employer had you using, you may also have what we workers’ compensation lawyers call a third-party case against the owner of the equipment. The way you’ve described this set-up the conveyor is defectively designed. A shut off or ‘oh-shit’ button is not a shut off button if the operator is stationed too far away to reach it. You see when you scream 'Oh SHIT!" you are supposed to be able to shut the machine off, which is why I call it the "Oh Shit Button". A comparable design would be putting the car brake in the back seat. This would really be dumb. Did I say dumb?

Designing with E-Stop Switches, Robert Repas, Machine Design where the author writes:

Key points:
• E-Stops do not merely turn equipment off, but offer foolproof equipment shutdown.
• Standards and regulations for E-Stops vary significantly by industry.
• E-Stops should stop all hazardous mechanical motion, but not shut off associated equipment.

Emergency-stop switches, generally referred to as E-Stops, help ensure the safety of people and machinery by delivering a consistent and predictable fail-safe response. A wide range of electrical machinery need these specialized switches to meet workplace safety and established international and domestic regulatory requirements. E-Stops differ from simple stop switches that merely turn equipment off in that they offer foolproof equipment shutdown. This takes place through switch designs that need a twist, pull, or key to release the electrical contacts so the machinery can restart.

Where do you find an accident lawyer with experience in machine design? How do you investigate a machine design case? Well you first hire a lawyer with 30+ years of experience who settled one for $300,000. Call us if you can use our expertise.

So if we can help you please give us a call. 515-222-1110 or sdlombardi@aol.com or Katrina Schaefer at katrina.schaefer8@gmail.com.  

Photo Credit: We would like to thank our friend Jason Arnold an architect living Anchorage for the image he shot of Denali aka Mt. McKinley. Alaska. Jason attended Iowa State University in Ames, Iowa.

Question:

Answer: The first question anyone will ask is what is causing the cysts to develop and is it related to the implant? This is a very technical issue. Before you ever consider suing anyone or any company you first must be sure of your assumptions. You are assuming the Implanton is causing you to develop cysts; and that isn't an assumption you can make without proof. I know little about this implant and the little research I performed did not show cysts being a known side effect. What I'm going to suggest is that you contact a local personal injury lawyer who can act as the go-between with a national firm handling litigation, assuming there is any.

I did locate the Implanon (etonogestrel implant) site with the important safety information. Here are two warnings that appear to be pretty significant.

• The use of IMPLANON may also increase your chance of serious blood clots, especially if you have other risk factors, such as smoking. If you smoke and want to use IMPLANON, you should quit. Some examples of blood clots are deep vein thrombosis (legs), pulmonary embolism (lungs), retinal thrombosis (eyes), stroke (brain), and heart attack (heart). It is possible to die from a problem caused by a blood clot, such as a heart attack or stroke. Tell your doctor at least 4 weeks before if you are going to have surgery or will need to be on bed rest, because you have an increased chance of getting blood clots during surgery or bed rest.
• Cysts may develop on the ovaries and usually go away without treatment but sometimes surgery is needed to remove them.

Please read the Patient Information for IMPLANON and discuss it with your doctor. The physician Prescribing Information also is available.

There are quite a few lawyers advertising litigation against Implanon. I have no idea whether or not this litigation is being successful, that may or may not be the focus of the litigation. Here is the link to Schmidt & Clark out of Washington, D.C. They say they are Super Lawyers so be ready for lawyers wearing tights and capes. You might even get a decoder ring if you hire them. At another of their sites they discuss the side effects but never mention cysts as being one they are interested in. I don’t think I’d worry so much about this as much as just connecting and putting out there your story. After all you never know there may be more women with the same or a very similar problem who haven’t yet spoken out. What you do may help someone else.

Here is a site with real life experiences that may interest you.

There is also an Implanon patient discussion forum.

It is probably important that you have the product removed ASAP and see if the cysts stop developing. First things first I like to say. Good luck and if you need further assistance finding  the right attorney let us know.
 

At the end of the day it still matters how you plead the case and prepare your client for his/her deposition. The tractor turned over, the one farmer helping was badly hurt and the guy driving may or may not be negligent. The theory you plead is important which is why we do so much work on a referral basis with lawyers from around the state. A little help can go a long way because at the end of the case some is always better than none. 

No. 12-1945. [3-273] METROPOLITAN PROP. & CAS. INS. CO. v. COWIE

Appeal from the Iowa District Court for Warren County, Paul R. Huscher, Judge. AFFIRMED ON APPEAL; AFFIRMED WITH DIRECTIONS ON CROSS-APPEAL. Heard by Doyle, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (11 pages)

This is an appeal from a ruling on the parties' motions for summary judgment concerning the applicability of an exclusion in a homeowner's insurance policy. John McCarty attempted to free a tractor, which was stuck in the mud in his backyard, by attaching a chain and towing it with his truck. The tractor overturned, injuring his neighbor, Douglas Cowie. Cowie filed a personal injury action against the McCartys, who assigned their right to recover from their homeowner's insurance policy to the Cowies. Metropolitan Property and Casualty Insurance Company (Metropolitan) disclaims a duty to defend and indemnify its insured, John and Leesa McCarty, pursuant to a motor-vehicle exclusion in the policy. OPINION HOLDS: Because both claims of non-vehicular negligence and vehicular negligence exist, the district court correctly denied Metropolitan's motion for summary judgment. However, to the extent that the district court ruling could be interpreted to limit Metropolitan's liability to indemnify its insured for only those damages proximately caused by non-vehicle negligence, we require Metropolitan to both defend and indemnify for all damages caused by the insured's negligence unless the vehicle-related negligence is the sole proximate cause of Cowies' injuries. 

A violation of a statutory duty—such as Schmidt’s failure to stop at the red light—constitutes negligence per se, absent a legal excuse. See id. (“A violation of a statutory duty constitutes negligence per se, absent a legal excuse.”).

The legal excuse doctrine allows a person to avoid the consequences of a particular act or type of conduct by showing justification for acts that otherwise would be considered negligent. There are four categories of legal excuse:

(1) anything that would make it impossible to comply with the statute or ordinance;

(2) anything over which the driver has no control which places the driver’s motor vehicle in a position contrary to the provisions of the statute or ordinance;

(3) where the driver of the motor vehicle is confronted by an emergency not of the driver’s own making, and by reason of such an emergency, the driver fails to obey the statute; and

(4) where a statute specifically provides an excuse or exception.

And this passage from the Hagenow decision is instructive:

The sudden emergency doctrine excuses a defendant’s failure to obey statutory law when confronted with an emergency not of the defendant’s own making. See Weiss v. Bal, 501 N.W.2d 478, 480 (Iowa 1993). Sudden emergency has been defined as “(1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity.” Bangs v. Keifer, 174 N.W.2d 372, 374 (Iowa 1970) (emphasis added). This is consistent with the common understanding of an emergency. See American Heritage College Dictionary 458 (4th ed. 2004) (defining “emergency” as “[a] serious situation or occurrence that happens unexpectedly and demands immediate action”). In Foster v. Ankrum, 636 N.W.2d 104, 106 (Iowa 2001), the court noted that a sudden emergency requires an “instantaneous response,” or “something fairly close.” (Emphasis added.)

The sudden emergency doctrine has been criticized by the Iowa Supreme Court.

The instruction is a correct statement of the law, though we note that our supreme court has expressed criticism of the doctrine of sudden emergency. See Foster v. Ankrum, 636 N.W.2d 104, 107 (Iowa 2001); Weiss v. Bal, 501 N.W.2d 478, 480 (Iowa 1993).  

But time is of the essence when a person, in this case a driver, to act and fails to act.

As with the requirement that the actor had sufficient time to make a decisional act in response to the peril, this requirement appears to be grounded in the assumption that the sudden emergency doctrine is intended to relieve an actor of liability where he has acted in response to a perceived peril and has made a choice which in hindsight may be regarded as unwise or ill-considered, but which was not unreasonable or imprudent under the stress of surrounding circumstances. Where the actor has not made a decisional act in response to peril, either because he was unaware of the peril, or where he perceived the peril but did not have time to react to it, the doctrine logically has no application.

In some courts, these requirements of awareness of the peril and time to react to it are stated somewhat differently. It is said to be a requirement that before the sudden emergency rule may be invoked in a negligence action, at least in motor vehicle cases, the negligence which is charged must concern management and control. The rationale is that the emergency instruction is designed to relieve an actor who is confronted with an emergency from being labeled negligent in connection with his manner of management and control. If the actor was never confronted with an emergency decision because he never recognized that an emergency existed, no choice was made, and he cannot invoke the doctrine because the charge of negligence does not go to his management and control of a situation.

8 Am. Jur. Proof of Facts 3d 399 § 13 (emphasis added) (footnotes omitted).

In this case the jury verdict was overturned and the lower court ruling reversed. The defendants failed to prove through expert testimony when the alleged medical condition occurred and how that affected the driver’s vision. This is in my view the correct ruling; the trial judge should not have instructed the jury on a legal excuse.

ISSUE: Whether the district court erred in granting title to a piece of real estate, originally owned by Plaintiffs Richard and Martha Douglas, to the City of Winfield, Iowa.

HOLDING: No, the district court did not err and the Court of Appeals affirms.

SUMMARY OF FACTS:  In 2003, Plaintiffs purchased a building in Winfield for $3000.  The building was originally constructed in 1897.  After using the building for both residential and commercial purposes after purchasing in 2003, Plaintiffs began receiving complaints that the building had fallen into disrepair in 2009.  Plaintiffs were informed that the building was now considered a nuisance and were asked to remedy the problem.  The City offered to buy the building from the Plaintiffs for $3000.  Plaintiffs countered for $50,000 and the City did not respond.  The City filed suit, alleging that under Iowa Code section 657A.10A, the structure should be classified as abandoned and title should be awarded to the City.  The district court found in favor of the City, finding that the building had been abandoned by Plaintiffs and awarded title to the City. Plaintiffs appealed.

The Court of Appeals affirmed, holding that Iowa Code chapter 657A applied because the building was “used or intended to be used for residential purposes,” as required for that particular code section to apply. Plaintiffs argued that this did not apply because the building was not being used for residential purposes at the time the case was pending in 2009.  The Court agreed with the district court’s determination that “the fact that the building deteriorated and became unsuitable for residential occupancy does not change the fact that the building was designed for residential purposes.” Therefore, Chapter 657A applied.  The Court also affirmed the holding that the building was “abandoned” based on the code language stating that this is the case where a building has remained “in violation of the housing code of the city . . . for six consecutive months.”  The Court found the house was “abandoned” based on the following evidence: 1) the electrical system was in violation of city codes, 2) there were numerous broken windows, 3) there was severe water leakage on the roof, and 4) there were large amounts of animal feces in the building.  Based on this conclusion, the Court held that the Plaintiffs had abandoned the house and the City rightfully received title to the property.

Question Detail:

Answer: I really dislike when I get this question because often times it means the annuitant is desperate and easily taken advantage of by the sharks trolling the water to buy up personal injury structured settlements. People who have suffered a personal injury aren't really all that knowledgeable about finance so most won't even know when they are being taken advantage.

So let's see if you have the background to understand some basic concepts. Answer a few questions. Do you know what a discount rate is and how it will affect the amount you receive? You see that $40,000 isn't really $40,000 sitting in an account just waiting for you to decide it's time to reach out and take it. The amount invested is less than $40,000 and remember it is invested. If the insurance company that entered into the settlement agreement pays it early they have to cash out of whatever it is invested in. That means there may be a cost to them to get out of whatever it is they invested your money. My point is you'll never get $40,000 today when it's due some time in the future.  Youu'll get less, probably much less. 

Do you know anything about capitalization rates, discount rates, interest rates and the time value of money? I’m guessing you don’t and you’re assuming they will be fair with you. That’s the biggest mistake you can make because this isn’t about fairness it’s about capitalism and investing for them. (i.e., making and saving a profit)  Investing from their side of the deal means maximizing their investment return, not yours. While there is some risk with a structured settlement there isn’t much so the cap rate should be really low, sort of like a Walgreen’s lease. [5%] Do you have any idea what it is I’m talking about? To sell your structured settlement you need to understand these concepts or you will need to hire someone who does so that you get a reasonable value for what you own.

Let us just assume the $40,000 you want is really worth $30,000 at this point in time. Well, how will you know if $30,000 is a fair offer for the $40,000 payment in the future? And that brings up a good point. You never did mention when this last $40,000 payment was to be paid? The farther out into the future the less it's worth now. That's because the insurance company would have more time to earn a return on the corpus of the investment to ultimately come up with the $40,000.

The structured settlement is an annuity, it’s an asset that you own which gives you the right to receive the stream of income. In this instance there is one last payment of $40,000.00 if you wait until that future date when according to the agreement it comes due. If you want it before that date you will get paid less, because the money isn’t compounding as long.

Does any of this make sense?

You should hire a lawyer or even an accountant that understands capitalization and discount rates to negotiate it for you. Trust me when I say this, these companies will take advantage of you and without someone who understands the time value of money you are a sitting duck. Call me if I can help and if I don’t hear from you good luck, because you’re going to need it.

Additional Resources:

I coud list no fewer than 10 companies that will buy your structured settlement, but there is no way I'm going to help any of them by putting you squarely in their sites. Call me!

Question:

Question Detail: My apartment is remodeled and new, I wasn't even a tenant for a week before I had to call my landlord and tell him my apartment was infested. I didn't come with any furniture at all. All furniture came from best way. They were extremely rude and uncooperative.

Answer: Okay, who are you saying was extremely rude and uncooperative, the landlord or the furniture rental company employees? When discussing a legal matter it is so important to be clear about what you describe.

You’re a long way from having an answer as to where the bug infestation came from. Possible sources are the apartment, other apartments in the building, visitors, the furniture, guests and any place you visited and may have brought them home. Who visited you from the time you moved in till you discovered the infestation? Where had you been? What else was brought into the apartment? Is there a history of bugs in that apartment? Who treated it and how was it treated along with when? How many units are in this apartment building?

^{Who, What, Where, When and How?}

You need to know more about whether the apartment had previously been infested or treated for bed bugs. Ask the landlord or landlord's management company. Check with the Department of Health as well. You have to prove where they came from, the source. You can't assume it's the furniture alone.

What are scabies?

Scabies is classified by the World Health Organization as a water-related disease. The disease may be transmitted from objects but is most often transmitted by direct skin-to-skin contact, with a higher risk with prolonged contact. Initial infections require four to six weeks to become symptomatic. Reinfection, however, may manifest symptoms within as little as 24 hours. Because the symptoms are allergic, their delay in onset is often mirrored by a significant delay in relief after the parasites have been eradicated. Crusted scabies, formerly known as Norwegian scabies, is a more severe form of the infection often associated with immunosuppression.

What are bed bugs?

Bed bugs are parasitic insects of the cimicid family that feed exclusively on blood. The term most commonly refers to members of the genus Cimex of which Cimex lectularius, the common bed bug, is the best known as it prefers to feed on human blood although other Cimex species are specialized to other animals, e.g., bat bugs, C. pipistrelli (Europe), C. pilosellus (western US), and C. adjunctus (entire eastern US).

The name of the "bed bug" is derived from the preferred habitat of Cimex lectularius: warm houses and especially nearby or inside of beds and bedding or other sleep areas. Bed bugs are mainly active at night, but are not exclusively nocturnal. They usually feed on their hosts without being noticed.

A number of adverse health effects may result from bed bug bites, including skin rashes, psychological effects, and allergic symptoms. Diagnosis involves both finding bed bugs and the occurrence of compatible symptoms.

You are a long way from proving a defect in the furniture. 

Three Minnows v. Cream

ISSUE: Whether the district court erred in granting a directed verdict to Defendant

HOLDING: No, the district court properly granted a directed verdict based on the Defendant’s argument that there were not sufficient facts to find that the person who signed the contract had authority to bind Defendant.

SUMMARY OF FACTS: Plaintiff Three Minnows, owned by Dean Quirk, created an LLC in 2009 that operated the bar “Drink” in Des Moines.  Defendant CREAM, owned by George Wittgraf and Jeff Maynes, is an LLC formed in 2004 and operated “The Union Bar” in Iowa City.  Martin Mayne also owned 30% of CREAM as a member.  Plaintiff’s owner wanted to contract with another company to manage the operations of his bar.  He met with several people, including the owners of CREAM.  Plaintiff contracted with GM Investments, which is managed by Martin Maynes and George Wittgraff of CREAM.  However, only Martin was aware of the proposed management contract.  Martin emailed Plaintiff suggesting using a different LLC and also stated that Martin would have a contract created between CREAM and Plaintiff granting CREAM the rights to use the name “The Union Bar.”  However, Plaintiff needed a licensing agreement in addition to the management contract in order to legally use the name “The Union Bar.”  George Wittgraf drafting the necessary agreement on March 16, 2010 and Martin was given authority to sign on behalf of CREAM.  On March 29, 2010, Quirk modified the proposed management contract that purported to supersede the previous March 16 agreement.  Martin signed for CREAM, but told Quirk he had no authority to do so.  Martin signed yet a second agreement on May 11 on behalf of CREAM.  Quirk never inquired into the status of Martin’s authority to bind CREAM.

In August 2010, CREAM owner George Wittgraf first learned of the management contract signed by Martin when he received a letter from Plaintiff Three Minnows claiming that Defendant CREAM breached the management agreement and owed Plaintiff money. A lawsuit was filed against CREAM and a trial began January 2012.  At the close of arguments, CREAM moved for a directed verdict.  The district court granted the motion based on the fact that the granting of authority to Martin to sign the licensing agreement did not translate to a reasonable belief that he had authority to sign subsequent management agreements.  This appeal followed.

The Court of Appeals affirmed, holding that Quirk had access to CREAM’s articles of organization to learn the extent of authority of a member of CREAM to bind the company and he did not do so.  The Articles clearly state that a non-manager member does not have actual authority.  In addition, Martin informed Quirk that he did not have authority to bind CREAM when signing the management contract.  Therefore, the Court held that Quirk had sufficient information to know that Martin did not have authority to bind CREAM and refused to allow Quirk the advantage of binding CREAM to the management agreement.

Question:

Question Detail: My husband is a 10-year liver transplant. A pharmacy put the wrong pills in his refill. I questioned the pharmacist at the time of pick up as the pills were significantly different from normal. I was blown off with a pat answer, "it is a different manufacture." When he went in for his annual labs it was discovered that the anti rejection medication was not in his system that is vital for the liver to not reject. When the transplant clinic called to ask why he wasn't taking his medication, we Googled the "new" pills and discovered there were not the vital medication. I had to go to the local pharmacy to file a complaint and get the correct pills. He went over 20 days without his anti-rejection medication that is vital to him plus he was taking 12x the dosage for the pills he was given and had the negative side effects. We don't know at this time the total damage this will cause but are very scared off it. The pharmacy that made the mistake is back tracking very fast and keeps saying they want to help. Should I involve a lawyer now or wait to see how bad it is? What I really want is the pharmacist and his technician to be fired immediately before they do any more damage to someone else.

Answer: This "mistake" is potentially very serious and with extremely serious consequences. But who made the mistake? What exactly was their mistake? After all this is a human error, but who is the human? The pharmacy or the supplier? You don't really know who is liable. That will require some investigation.

And what about the extent of his damages? You readily admit you don’t know the extent of the damages, but the potential for a lost chance of survival seems be a pretty big claim that needs to be investigated. While you wait to determine the answer to that question there is the emotional toll; in the law referred to as emotional distress damages.

Your claim may be too early to know but the statute of limitations is a concern to any personal injury lawyer. So you need to act now and find a good personal injury lawyer. If you need help finding one contact our office and we will refer. Good luck.

ISSUE: Whether the district court erred in finding Defendants statutorily liable for failure to disclose a leaking roof and damaged windows when they listed their home for sale.

HOLDING: Yes, the Defendants are statutorily liable for failure to make the mandatory disclosure regarding the leaking roof, but they are NOT statutorily liable for the defective windows as it was not mandatory for them to make such a disclosure.

SUMMARY OF FACTS: Defendants Joseph Emans and Lisa Swesey owned a home in West Des Moines.  There was a roof leak in the sunroom that Joseph repaired and there were no further leaks.  Defendants listed their house for sale in 2009.  They used a seller disclosure form on which they stated that the roof was new in 2006, but did not disclose that there was a leak in the sunroom or that they repaired it.  They also stated that the windows were “working.”  Plaintiffs Jill Stuecker and Kwasi Yeboah made an offer to purchase the house.  An inspection report did not disclose a leak in the sunroom and stated that the windows were not opened due to weather.  About two months after purchasing, the Plaintiffs noticed wetness in the sunroom and discovered damage to the drywall that cost $17,280.92 to repair.  In addition, four of the windows would not open, costing $4365 to replace.  Plaintiffs then sued Defendants claiming fraud by concealment, fraud by false disclosure statement, misrepresentation, negligence, and statutory liability under Iowa Code chapter 558A.  The district court dismissed all claims except the statutory liability claim, finding Defendants failed to disclose the leak, of which they had actual knowledge, in their disclosure statement.  Defendants were found liable for damages in the amount of $21,645.92.  This appeal followed.

The Court of Appeals affirmed the finding that the Defendants were statutorily liable for the nondisclosure of the sunroom leak and repair.  Iowa Code section 558.4(1) does not limit the required disclosures to “active” problems when selling a home, and requires a seller to disclose any known problems.  The Court also affirmed the awarding of damages in the amount spent to repair the leak, as the Defendants’ initial violation of the Iowa Code disclosure requirement entitled Plaintiffs to “actual damages.”

The Court reversed the district court’s finding of liability for the non-working window replacement cost.  The Court held that disclosure of the windows’ condition was non-mandatory and the Iowa Code only authorizes damage awards for failing to reveal “required” disclosures.  Therefore, the Defendants are not statutorily liable for the defective windows and are not required to pay the associated replacement costs.  The case was remanded for consideration of which party should pay the attorneys’ fees.

Attorney Lombardi's Commentary and Opinion: Where does the duty to disclose begin and end? Must I disclose a toilet that overflowed five years previous to the sale?

You see you can't have both qualities. Either you hate to lose or you love to win. And since your case may follow the one he just won, you'd better pick a lawyer who hates to lose. The lawyer that hates to lose, wins one case and gets right back to his desk to work on the next case. Why? Because he hates to lose. The guy that likes to win is in the hallway looking for affection and to get his back slapped. "Hey great job! Wow what a win!" While the guy in his office doesn't need others to tell him he's done it right, he knows it but more importantly, even when he wins he's evaluating what he could have done better. He doesn't care about others saying this was a good win because he knows he can do better next time. And in our mind we are only as good as the next win. So here is what you should look for when picking the right lawyer. 

Picking the right lawyer for your case is similar to buying any other large ticket item, let the buyer beware. It’s never easy to pick the right lawyer to handle your personal injury case, but there are scars on the lawyer’s soul that will help you identify if he or she is the right one for you and your case. You shouldn’t be afraid to ask questions and you should expect the lawyer to competitive. A pansy trial lawyer is no lawyer at all. While I would not suggest being antagonistic being competitive is part of the game and it is a necessary tool in any trial lawyer’s tool box. Today let’s identify the markers of a good personal injury lawyer.

THE LIST - 37 THINGS THAT MAKE A LAWYER A GOOD PERSONAL INJURY LAWYER

1. Good trial lawyers hate to lose.
2. Good trial lawyers are grouchy.
3. Good personal injury lawyers aren’t afraid to try a case.
4. Good personal injury lawyers don’t try many cases.
5. Good personal injury lawyers have previous clients who refer them business.
6. Good personal injury lawyers have other lawyers that refer them business.
7. Good trial lawyers hate to lose.
8. Good personal injury lawyers understand the business side of the practice of law.
9. Good personal injury lawyers have the money to advance all litigation costs.
10. Good personal injury lawyers have a website.
11. Good personal injury lawyers aren’t afraid to put their opinions out there publicly.
12. Good personal injury lawyers move their cases along.
13. Good trial lawyers hate to lose.
14. Good personal injury lawyers have cases pending on the court’s docket.
15. Good personal injury lawyers have experience and will share it with you.
16. Good personal injury lawyers aren’t just telling you what you want to hear.
17. Good personal injury lawyers are willing to explain the good and the bad in the case.
18. Good personal injury lawyers are willing to mediate your case, but without undue pressure on you to settle.
19. Good trial lawyers hate to lose.
20. Good personal injury lawyers have a limited number of cases and turn cases down.
21. Good personal injury lawyers can explain what makes a case go south.
22. Good personal injury lawyers can explain what adds value to your case.
23. Good personal injury lawyers can you the names of other lawyers to call to ask for a reference.
24. Good personal injury lawyers won’t immediately value your case.
25. Good trial lawyers hate to lose.
26. Good personal injury lawyers don’t tell you what you want to hear to get you to sign a contract.
27. Good personal injury lawyers use contingent fee agreements.
28. Good personal injury lawyers are confident in knowing a good case from a bad case.
29. Good personal injury lawyers can on some days be difficult to get on the phone.
30. Good personal injury lawyers have other clients.
31. Good trial lawyers hate to lose.
32. Good personal injury lawyers have other businesses.
33. Good personal injury lawyers can explain the law to you.
34. Good personal injury lawyers maintain client confidentiality.
35. Good personal injury lawyers have lost cases and can explain why they believe they were lost.
36. Good personal injury lawyers have nightmares about the cases they have lost.
37. Good personal injury lawyers hate to lose.

Have I mentioned good personal injury lawyers hate to lose? Keep in mind that hating to lose is not the same as loving to win. The two are quite different. If you're interested in the difference and need a personal injury lawyer, call me. [515-222-1110]

If you read this list and you’re still not sure, ask, because you never know what other lawyers will say. I’ve had defense lawyers who have recommended me as have insurance adjusters and members of the bench and bar around the state. Remember if as a trial lawyer you’re effective, even your opponents will hire you when they need a good trial lawyer to carry their legal water bucket in a personal injury case. Everything else aside, keep in mind we all put our pants on the same way every morning.

Resources:

• The Iowa State Bar Association
• Iowa State Bar Association - FIND-A-LAWYER Search Page
• Iowa State Bar Association – Attorney Discipline Page
• Ethics Opinions

ISSUE: Whether the district court erred in denying the Petitioner, Thomas Millenkamp, the alternate medical care he requested in his petition.

HOLDING: No, the district did not err and the Court of Appeals affirms the decision to deny the Petitioner the alternate medical care he requested.

SUMMARY OF FACTS:  Millenkamp was injured at work, resulting in a traumatic brain injury.­­­ His employer, Millenkamp Cattle, Inc. and Nationwide Mutual accepted liability.  The issue arose after Millenkamp had been seeing Dr. Sterrett, a neurologist for several years, at which time Dr. Sterrett retired.  Millenkamp then sought to have his prescriptions refilled by his primary care physician.  When the treatment was no longer enough for Millenkamp’s neurologic issues, Millenkamp asked his primary doctor for a referral to a neurologist, Dr. Neiman.  Dr. Neiman was not authorized by Millenkamp’s employer and they informed Millenkamp that they would not pay for treatment through his care, and Millenkamp would instead have to see Dr. Rizzo for authorized care.  Millenkamp filed a petition for alternate medical care seeking to name Dr. Neiman as an authorized treating physician.  This petition was denied, and he then sought judicial review of that decision.  Millenkamp also filed a second petition at this time for alternate medical care.  The deputy ruled in favor of Millenkamp on this petition, but the employer then sought judicial review.  The district court remanded both rulings back to the agency for another hearing.  Millenkamp dismissed his first petition, so only the second was up for rehearing, and the agency denied the request for alternate medical care.  The denial was based on a finding that the employer has a statutory right to choose the medical care provider and it did so with a reasonable neurologist.  Millenkamp file for judicial review of that decision, and the court upheld the agency’s ruling denying alternate care.  This appeal then followed.

The Court of Appeals affirmed the lower court’s upholding of the agency ruling, thereby denying alternate medical care to Millenkamp. The Court cited that under Iowa Code § 85.27(4), an employee has the right to request alternate medical care if he is dissatisfied if the care originally offered by the employer.  However, the commission need only grant such care if the treatment provided by the employer is not prompt, not reasonably suited to treat the injury, or is severely inconvenient to the employee.  The Court found that the employer properly authorized a neurologist once they were informed the original doctor retired, and provided prompt attention to the Petitioner’s care.  Therefore, it ruled in favor of the employer by denying the Petitioner’s request for alternate medical care.

Attorney Lombardi's Opinion & Commentary: With all due respect the Court this injured worker has a permanent brain injury and his care is critical as is the choice. In my humble opinion it's not enough to just get by. It's important the employee have confidence in who is treating him, so that he can get as good as he's going to get. Rizzo is a doctor I'm familiar with and who I would not treating me if I had a brain injury. I could care less how much money Nationwide was saving using him, I'd want to choose my own neurologist. I respectfully disagree with the law and the Court's ruling.

Question:

This question was from a potential client and after adding a Q&A to our website I decided it is a good question to expand on in a blog. Of course, if I lived in a warmer climate it would not be relevant from ice and snow, but up north it’s entirely relevant for landlords as well as tenants. In the area of commercial real estate we run into this often enough that I get questions from both parties. I own commercial real estate and have rented so I know it firsthand from both sides.

Snow and ice are predictable risks during the colder months. We know it will happen we just don’t know when and how much. So snow and ice along with slick sidewalks are foreseeable to both landlords and tenants. Entering into a lease is a time to decide who will be responsible for clearing snow and making ice less slippery. (Of course I’m referring to snowmelt, ice melt or sand.) At the time the lease is being negotiated the landlord will usually put forth their idea of who is going to be responsible. If the tenant, then it will be in the lease unless of course it’s a single family home and then normally that falls on the shoulders of the tenant. But what if the lease makes the tenant responsible for snow removal but the accumulation has more to do with a maintenance issue? Then what? Well, that’s why this question was posted. So let us read and understand that the landlord is not free to ignore maintenance issues when the lease makes the tenant responsible for snow and ice removal.

Question: Could I have a case against my landlord despite the (lease) addendum because of the poor condition of the steps?

Question Detail: I am a college student renting a house from a landlord. Yesterday morning, I was leaving for class as I always do and I slipped and fell on our steps, which were extremely icy. I am having excruciating back and neck pains. I am going to a doctor tomorrow to document this and see what is wrong exactly. I have been looking at our lease and there is an addendum that states that tenants are responsible for ice and snow removal; however, our steps are made from wood and are in extremely poor condition. I know that the landlord is responsible for maintaining these steps. In the Rights and Duties of Tenants booklet, it states, "Stairs, porches and all other attached features must be kept in sound condition," but they are surely not in sound condition to begin with, despite the fall.

Answer: The answer is maybe. If the poor condition of the steps caused the ice to accumulate in an unnatural manner, then the argument is one based on maintenance of the physical structure and not the removal of snow and ice. If not, then the answer is no; that the addendum to the lease prevails.

So let’s develop the idea from each point of view.

Landlords want this provision in the lease to make tenants responsible for clearing off the snow and ice and for insuring against personal injury claims. It’s a legitimate practice and one used most frequently in single-family homes or smaller multi-family buildings such as duplexes. No one can make a profit if all they do is run over to wipe the tenant’s nose whenever it runs.

From the tenants point of view they don’t like doing it unless they are getting a rent reduction. After all they are renters not owners who are making any headway on equity.

But each side must take responsibility for protecting themselves and the landlord has the obligation according to Iowa Code chapter 562A to provide a safe place to live. That doesn’t mean the landlord owes anything more than what the situation warrants.

Proving Your Case

Stop! Don’t call the lawyer just yet. First get out that camera phone and start shooting photographs of the structural problem as you see it. Photograph the snow and ice accumulation in place! Coming to the lawyers office in May complaining about snow and ice you haven’t photographed is a waste of time; because no lawyer can prove your case without the right evidence. And in this instance a picture is worth 10,000 words. 

On another day I'll talk about how the landlord can protect themselves from being sued over this type of maintenance defect.  Until then if you have a question let me know by sending it to my email address. Good luck with your real estate investment!