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Thursday
Aug232012

Insurance Companies Behaving Badly: The Progressive Fiasco

Personal Injury SettlementsInjury Attorney

 

(818) 907-3254
by David B. Bobrosky

 

Thanks to social media, the power is truly back with the people. 

It helped revive Betty White's career, thanks to a Facebook campaign by her fans. It got the Susan G. Komen Foundation to rethink its decision to cut funding for Planned Parenthood, and public outcry further prompted the resignation of five Foundation executives. Social media also sparked a movement to boycott Chick-fil-A, and then a counter-movement to support the chain, after the company president took a public stance for traditional marriage. 

 

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Regardless of what side of these issues you fall, social media has proved to be powerful. Now, Progressive Insurance is the latest to be feeling the pain of public outcry in social networking forums. 

It started in 2010, when Progressive client Katilynn Fisher was killed in an automobile accident in Baltimore. Among other things, her insurance policy covered her for accidents with uninsured or underinsured drivers.

Nationwide Insurance covered the other driver, and promptly paid out its policy limits of $25,000 to Fisher's estate.

Under Fisher’s underinsured policy with Progressive, there was another $75,000 available to the estate.  A total of $100,000 certainly seems like nothing for the death of a loved one, but that’s all that was available.  To make matters worse, Progressive refused to pay out even the $75,000, claiming Fisher may have been at fault for the accident.

Apparently, in the State of Maryland, if your insurance company refuses to settle your underinsured motorist claim, you must prove your damages against the other driver first in court. In this case the other driver’s company had already paid its own policy limits.  Nevertheless, Progressive still fought the family. 

In California, it would be a little different.  After recovering the third party policy, an insured could demand arbitration against its own insurance company if it refused to pay on the underinsured policy.

Progressive refused to settle the matter for anything more than a third of the policy, and then set out to defend the other driver even though he appeared to be at fault.

This prompted Fisher's brother, Matt Fisher, to post a blog about the insurer on August 13th entitled My Sister Paid Progressive Insurance to Defend Her Killer in Court:

Here I address you, Prospective Progressive Insurance Customer: someday when you have your accident, I promise that there will be enough wiggle room for Progressive’s bottomless stack of in-house attorneys to make a court case out of it and to hammer at that court case until you or your surviving loved ones run out of money.... Which is what Progressive decided to do to my family. In hopes that a jury would hang or decide that the accident was her fault, they refused to pay the policy to my sister’s estate. 

Rather than accepting responsibility for its actions, Progressive posted a response to Matt Fisher’s blog.  Progressive stated:

            “Progressive did not serve as the attorney for the defendant.”

On August 14th, Fisher posted a response to a statement by the insurer.  Fisher pointed out that the Progressive attorney sat at counsel table during the trial, presented an opening statement, questioned the witnesses, and presented the closing argument.  As Fisher stated, he was “comfortable characterizing this as a legal defense.”

The posts earned the case some national media attention. Fisher was invited to appear on national television and Progressive's Facebook page saw an onslaught of negative commentary.

A circuit court in Maryland awarded $760,000 to the Fisher family. Progressive paid the $75,000 it owed to begin with, and then paid an additional undisclosed settlement for the way the company handled its own insured’s claims.

Had Progressive treated its insured fairly, it would merely have paid the $75,000, and saved the insured’s family additional grief. Instead, Progressive paid significantly more and put the family through additional anguish.

I’d like to think Progressive, and other insurers, have learned a lesson here…but we know they probably haven't. Insurance companies will continue to do whatever they can to pay out as little as they can on all claims.

David B. Bobrosky is a San Fernando Valley Personal Injury Attorney and avid safe driving proponent. Contact him via e-mail: dbobrosky@lewitthackman.com

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
Mar292012

Social Networking and Recruiting - Should Employers Ask for Facebook Passwords?

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

 

Many employers these days are incorporating policies on social networking in their employee handbooks. Usually the policies address whether or not employees can use work computers and other devices to access personal accounts such as Facebook, Twitter, etc.

But according to a recent article from the Associated Press, there is a growing trend in which Human Resources professionals are screening applicants through their social media accounts by asking for passwords to Facebook and other personal pages, or requesting applicants log into their Facebook accounts on a company computer. Some recruiters are also asking applicants to add them as a friend on the social network.

This practice appears to be particularly common in the law enforcement, government or security sectors, though employers in other industries (such as retailer Sears) are now asking as well.

While the law does not currently address the direct implications of social media use in recruiting, there are a number of pending court cases involving social media and applicants/employees that should provide some guidance to employers. Some states, such as Illinois and Maryland, are also attempting to pass legislation that would prohibit employers from asking for an applicant's social media login and password.

There is the additional concern that requesting an applicant’s password violates Facebook’s Terms of Service, which states: “You will not share your password…let anyone else access your account, or do anything else that might jeopardize the security of your account.”  Further, while employers generally can’t ask applicants about certain protected categories, such as race, religion, age, sexual preference, marital status, or disability, gaining access to a social media site would likely reveal such information without employers having to directly ask for it.

While an applicant may lawfully refuse a password request, in today’s economy, many choose not to so as not to risk losing the job opportunity.

So what is an employer to do?

 

The DOs and DON'Ts of Social Networking and Recruiting

 

According to a study commissioned by Microsoft and conducted by market research company Cross-Tab, about 70 percent of HR representatives report rejecting an applicant because of information found online. Many of the companies the representatives recruit for actually mandate online screening of candidates as part of the hiring process.

Employers using social media to s­creen job-seekers are advised: 

  1. If you use social media in your recruiting, use it consistently (i.e., conduct the same searches at the same point in the process for every applicant). 
  2. Don't create an internet alias to gain access to a candidate's personal profile. In other words, don't set up a John or Jane Doe account to Facebook "friend" your applicants. 
  3. Keep a record of your search by printing the page or saving a screen shot, especially if the search reveals something which raises questions about the candidate.
  4. Notify applicants that you will be reviewing any and all public social media accounts. 
  5. If you perform a background check, make sure you comply with the Federal Fair Credit and Reporting Act, as well as state regulations. 

Use any information you obtain lawfully, and not to make any final employment decisions. 

Nicole Kamm is an Employment Defense Attorney in the San Fernando Valley. You may reach her by calling 818.990.2120, or via e:mail: nkamm@lewitthackman.com

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Tuesday
Sep272011

Social Media Issues Affecting Jury Trials

Injury Attorney Los AngelesLos Angeles Injury Lawyer 

 

by David B. Bobrosky
(818) 907-3254

 

There’s a great buzz lately over social media issues, with topics ranging from cyber bullying to privacy rights and sexual harassment. The issues even affect the justice system:

Recently a juror in Texas was kicked off a jury after he sent a “friend” request to the Defendant in the trial through Facebook.  Yes, you read that correctly.  A juror attempted to ‘friend’ the Defendant during a trial regarding a car accident.  The juror pled guilty and was sentenced to two days of community service. 

Amazingly, this is not an isolated social media ethics incident affecting the legal system.  Several stories recently have detailed how jurors are misbehaving through the use of social media.  

An article in the New York Law Journal in March (“Social Media Misbehavior by Jurors Afflicts Trial Process”)  broke down the misconduct into four general areas: 

  • Publishing information about a trial through Twitter or Facebook 
  • Researching facts or legal principles through the internet 
  • Contacting or “friending” parties, lawyers, witnesses or judges 
  • Broadcasting internal decision, such as the progress of finding a jury for a specific case, or communicating with other jurors prior to deliberations 

Another article in California Lawyer (“Jurors Gone Wild”) described data from Reuters Legal citing nearly 100 verdicts over the past decade that have been called into question because of a juror’s internet research or social media comments.  The article cites 21 cases in which judges granted new trials or overturned verdicts in the last two years. 

Getting a Handle on Ethical Issues of Social Media 

There is no easy answer to figuring out how to get a handle on the ethical issues of using social media in courtrooms.  The most drastic suggested methods have the Courts confiscating phones, laptops, iPads, and other devices upon entering the courtroom.  

Some regulators even call for the jamming of mobile networks within the courthouse.  Of course, even these drastic methods cannot prevent jurors from improperly using social media once they leave. 

Of course, these solutions only prevent jurors from engaging in these activities at the courthouse. There is nothing that can be done to truly stop jurors from being able to engage in such behavior at home. And considering the fact that we are a society that “googles” everything, this is not an easy problem to solve.

Social Media Ethics in California

California has been one of the more aggressive states in terms of trying to crack down on jurors’ improper use of social media. 

Two years ago California updated both its civil and criminal jury instructions.  The jury instructions specifically warn jurors not to post any information about the trial or their jury service on the internet in any form.  They further warn jurors not to communicate with anyone associated with the trial through e-mail, text messages, or any other media.  Lastly, they warn jurors not to use the internet to do any type of research. 

Taking the warnings a step further, Governor Jerry Brown signed a bill in August that could make willful disobedience of these warnings criminal contempt.  This means that an offending juror could serve jail time for violating these social media prohibitions.  

Hopefully, these aggressive steps will help. In the immediate future, however, attorneys and judges will be spending extra time warning jurors of the consequences of such actions.

David B. Bobrosky is a Los Angeles Injury Lawyer. Call him by dialling 818.990.2120, or reach him via e-mail: dbobrosky@lewitthackman.com.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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