As a result of the Covid-19 Pandemic and subsequent business closures across the country, many business owners and companies are looking to their property insurance policies for relief. Insurance companies are telling them that the losses are not covered.

Business interruption insurance typically helps replace lost revenue, taxes, payroll, relocations costs, loan payments and lease payments when a business is affected by a covered loss. According to the Insurance Information Institute, approximately one-third of U.S. small businesses carry interruption coverage. https://money.usnews.com/money/personal-finance/saving-and-budgeting/articles/what-is-business-interruption-insurance.

Multiple lawsuits have been filed around the country in response to these claim denials. https://www.sandiegouniontribune.com/business/story/2020-04-05/companies-thought-they-were-covered-for-business-interruption-insurance-not-really

Some state legislators and lawmakers have sought to ease the burden on small businesses and ensure that they are getting the coverage they paid for. Here in California, 33 Congressional Delegation Members have sent a letter to the California Insurance Commissioner demanding that they “exercise all authority to ensure the insurance companies comply with their business interruption policies. During this crisis, we must do everything possible to mitigate the devastating impact on small businesses due to the coronavirus pandemic.” https://www.natlawreview.com/article/33-members-california-congressional-delegation-ask-ca-insurance-commissioner-to. According to the California Insurance Commissioner Ricardo Lara, the Insurance Commission is “currently working with the insurance industry and business groups to find creative solutions during this unprecedented crisis to make sure our businesses survive, and we need this data to define the size of the problem.”

If you have experienced a business interruption due to Covid19, you may be entitled to assistance.

0

Hospitals across the country are discussing the possibility of universal do-not resuscitate orders for coronavirus patients. According to an article in the Washington Post, hospitals are facing the reality of balancing the risk to hospital staff posed by resuscitating infected patients and attempting life-saving treatment. https://www.washingtonpost.com/health/2020/03/25/coronavirus-patients-do-not-resucitate/. According to the article, ‘[s]everal large hospital systems … are looking at guidelines that would allow doctors to override the wishes of the coronavirus patient or family members on a case-by-case basis due to the risk to doctors and nurses, or a shortage of protective equipment, say ethicists and doctors involved in those conversations. But they would stop short of imposing a do-not-resuscitate order on every coronavirus patient.”

These conversations are happening in the context of a larger discussion about the availability of resources such as hospital beds, intensive care unit beds, and ventilators in the face of rising demand as the Covid-19 pandemic continues to spread. Hospitals are also struggling to provide necessary protective equipment to nurses and doctors providing lifesaving care to these critically ill patients. “[A]s cases mount amid a national shortage of personal protective equipment, or PPE, hospitals are beginning to implement emergency measures that will either minimize, modify or completely stop the use of certain procedures on patients with covid-19.” https://www.washingtonpost.com/health/2020/03/25/coronavirus-patients-do-not-resucitate/

These news stories have caused many families to consider whether they should have advanced directives in place.

La Crosse, Wisconsin, a town with about 50,000 people, has some interesting lessons we can learn about the benefits of making informed decisions about our end-of-life care. Several decades ago, public health officials and major health organizations began developing a model for end-of-life planning and decision making. By 2009, 96 percent of the residents in La Crosse County had an advanced directive in place. This public policy initiative has benefited families and patients in many ways. Families are relieved from some of the emotional and financial stress that comes along with end-of-life care. https://www.forbes.com/sites/offwhitepapers/2014/09/23/how-to-die-in-america-welcome-to-la-crosse/#70188126e8c6.

“There is no more gut-wrenching decision to make for family members than when to let go allowing a loved one to end life peacefully. Knowing in advance the patient’s desires can relieve anxiety and grief by ‘following their final wishes.’” https://www.forbes.com/sites/offwhitepapers/2014/09/23/how-to-die-in-america-welcome-to-la-crosse/#70188126e8c6.

These are important decisions that every individual and family must consider. You have a choice to make informed decisions about the care that you receive and plan in advance.

0

In response to the COVID-19 crisis, California health officials have extended the special enrollment period for eligible individuals to sign up for health insurance through Covered California. These health insurance plans are subsidized plans for individuals without employer-sponsored health insurance. Several states around the country are re-opening their own health insurance exchanges for a special enrollment period as well. https://www.npr.org/sections/health-shots/2020/03/20/818981380/9-states-reopen-aca-insurance-enrollment-to-broaden-health-coverage.

Although Congress has passed legislation that provides for free coronavirus testing, the subsequent healthcare you might require is expensive. Individuals who do not have health insurance could end up with large medical bills through no fault of their own. A hospitalization lasting several weeks could cost tens of thousands of dollars without insurance according to some studies. https://www.healthsystemtracker.org/brief/potential-costs-of-coronavirus-treatment-for-people-with-employer-coverage/. Many uninsured individuals will find themselves in a difficult position deciding whether they should seek treatment and risk suffering from the dire financial consequences. Public health officials and experts have expressed concern about the impact of individuals avoiding testing and treatment stating that “uninsured residents who don’t get tested for the novel coronavirus because of the fear of the costs of testing and treatment would represent an ‘extremely weak link in the response chain and would make things much worse.’ ” https://www.npr.org/sections/health-shots/2020/03/20/818981380/9-states-reopen-aca-insurance-enrollment-to-broaden-health-coverage.

According to the US Census Bureau, the number of people in the United States that do not have health insurance is approximately 28 million. https://www.census.gov/library/publications/2019/demo/p60-267.html. If you are uninsured, please contact Covered California to discuss your options.

0

In light of the recent COVID-19 crisis, California Advocates for Nursing Home Reform (CANHR) is demanding new directives to keep residents safe.

The CDC has issued updated guidance to all nursing homes in an attempt to prevent the spread of COVID-19 in nursing homes. These measures include:  restricting all visitation except compassionate care situations; restricting all volunteers and non-essential healthcare personnel; canceling all group activities and communal dining; and active screening of residents and healthcare providers.    https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-long-term-care-facilities.html

Here in California, the restrictions are being extended to state nursing home surveyors who normally provide oversight to detect “life-threatening infection control problems” and understaffing.  CANHR is calling for the California Department of Public Health take action to protect nursing home residents when they need it the most.

  • Reassigning nurse evaluators to monitor nursing homes onsite throughout the state until the crisis passes;
  • Closely monitoring nursing home staffing levels on a daily basis;
  • Issuing a moratorium on involuntary transfers and discharges of residents;
  • Ensuring nursing homes provide meaningful, frequent, and safe opportunities for residents to maintain contact with loved ones remotely until visitation is restored.

CANHR has a website specifically dedicated to provider alerts, news and resources regarding the COVID-19 Crisis as it relates to nursing homes. http://canhrcovidnews.com/ If you believe a loved one has been injured through neglect or abuse at a nursing home or residential care facility for the elderly, contact our offices at (619)238-8700.

0

Nursing homes and assisted living facilities have now gone to stricter measures to try to contain the threat of COVID-19.

Due to the novel coronavirus, homes have gone from asking guests to sign in and disclose prior travel, then to taking their temperature, to now requesting all nonessential visits be postponed indefinitely and ordering that residents not leave the facility nor their rooms. Many of these homes have graduated levels of care, from relatively independent living to more intensive physical and memory care. The continuing care community is at high risk as is widely known. Many individuals who succumb to the worst ravages of the virus already have underlying medical conditions. For safety of individuals and the community, administrators do not want residents with the ability to come and go on their own to participate in events with crowds or groups of more than ten people. The extreme precautions being undertaken at some homes include ordered complete isolation simply due to risk, aside from any testing or suspicion of infection.

At this point, as of this writing, most of these facilities have suspended group exercise classes and all other activities, and have made changes to their dining rooms, allowing only take-out meals, or delivering food or food choices on trays to rooms of individuals ordered isolated there.

Those who think they must visit any group living facility for elders should be ready to have explicit, important reasons to be there. Many homes are running low on supplies, and do not have the items needed to properly protect their residents, nor the resources to deal with visitors who must be turned away. Many homes were ill-equipped in the first place, through understaffing or undertraining. Compare your home’s track record:
https://www.medicare.gov/nursinghomecompare/search.html

Aside from providing love, company and a familiar friendly face, families also provide important monitoring and oversight of the care people are receiving. There are of course also concerns for those with dementia deteriorating without routine and regular stimulation and communications. The timing is bad in these situations, because family would like to be there more frequently and prevent the decline of the disease of dementia often exacerbated by isolation, loneliness and depression.

Stopping physical visits shouldn’t mean curtailing all communications from family and friends. Contact the home directly and ask that they help your family member get on-line, work email and do Skype or Facetime. A useful device to make authorized drop-in virtual visits without a lot of tech to handle for the elder is “Echo Show” which you can interface with through the Amazon Alexa app on the iphone app store. At the very least, make regular old-fashioned phone calls to keep tabs on your elder. Here are some useful links:
https://www.aarp.org/home-family/personal-technology/info-2020/vr-social-connections.html ;
https://www.aarp.org/caregiving/health/info-2020/preventing-coronavirus-in-nursing-homes.html

In some cases, families may want to take their loved one home with them, and that is being encouraged in some facilities, with the proviso that they then may not be permitted to re-enter until further notice. It may not always be the most wise choice. (See the second link in paragraph above for more details.) However, it may be hard to remove a resident, especially if they are very frail, have a chronic condition, or need a high level of care, or memory assistance. Be sure to have a plan in place for bathing, feeding and taking medicine. If you hire a home health agency, be sure to check them out well. Ask the agency what measures and precautions they will be taking when caring for your loved one. Monitor them. Anyone providing hands-on care should be following the current recommendations by the CDC.

Hope this information is helpful in some way to flatten the curve. Or, at the very least, hope it helps you stay as close as you can to your loved ones during these unprecedented circumstances. (Remind them to hydrate!) Be well.

If you believe a loved one has been injured through neglect or abuse at a nursing home or residential care facility for the elderly, please call us at (619) 238-8700

0

Just as we must collaborate to safeguard our society and banish COVID-19, so too is it necessary for us to unite in order protect the legal rights of our elderly citizens.

Healthcare lawyers can help in this crisis by providing patient advocacy, protecting the most severely affected including the elderly who are often not represented, especially when they are in nursing homes.

To slow the rising tide of the pandemic, family members and visitors are barred from visiting nursing home residents.  In a troubling, but not entirely surprising display of lousy timing, the Trump administration is also considering relaxing federal oversight on nursing homes, including rules meant to curb deadly infections among elderly residents. This is a foolhardy move on the heels of and in addition to CMS restricting nursing home visitors and non-essential personnel.

Who will protect our elderly and most vulnerable citizens if family and friends are denied access to them and nursing home oversight is relaxed NOW, in the middle of a pandemic? In these difficult times, we need more patient safety, not less.

Nursing homes house about 2.5 million people nationwide. Nursing home residents have already been identified as especially vulnerable to COVID-19. Because of their age and pre-existing health problems, the elderly are at an increased risk of not only contracting this virulent virus but also from dying from it. Nonetheless, the Trump administration announced plans to eliminate the requirement that nursing homes keep at least one infection-prevention specialist on hand.  These anti-infection specialists serve a key role, making sure nursing home staff stick to crucial safety rules, such as consistently washing their hands.

Recently, 31 coronavirus deaths were linked to a single long-term nursing home in Kirkland, Washington. The New York Times points out that as recently as last year, this same Life Care Center facility received multiple citations related to failings in its infection control systems.  This is precisely the type of risks anti-infection specialists are employed to prevent and to manage.

Now is the time to ramp up oversight of our countries’ nursing homes– when their loved ones are banned from visiting them and there is no one else able to watch over their care.

0

On June 24, 2019, a class action was certified against a San Diego stem cell clinic, StemGenex, Inc., its owners and related entities.  The lawsuit claims fraud, false advertising and violations of consumer law relating to stem cell treatments aggressively marketed to people with a variety of diseases and medical conditions. Moorer v. StemGenex Medical Group Inc., et al., United States District Court for the Southern District of California, Case No.: 16-cv-2816-AJB-NLS, Hon. Anthony J. Battaglia.

The case centers around patient satisfaction ratings that were published by the company on its website and in marketing materials showing 100% of prior patients were “satisfied” with the treatments.  The lawsuit claims that prospective patients purchased the treatments in reliance upon those figures, which were false.

StemGenex argued that their ads were simply an accurate reflection of next-day tallies of how people felt about the service and the company after they had just had the treatment.  But it was revealed during the lawsuit that the clinic had in fact received complaints from unsatisfied patients, for whom the stem cell treatments had little or no effect.  Often, patients were told that the best remedy would be to return for a second, expensive treatment.

The class is comprised of hundreds of customers throughout the United States, all of whom had the same type of treatment, a stem cell process which used each person’s own belly fat, and all of whom paid Defendants the same amount – $14,900 per treatment.   The Court ultimately agreed with the patients that their claims were suited for a class action, stating, “The questions asserted are common questions of fact and, as Plaintiffs acknowledge, the answers can apply to all class members in one swoop.”

In recent years, for-profit stem cell clinics have sprung up all around the country.  They often utilize sales forces and promote crowdfunding as a means of marketing types of stem cells which are not approved by the FDA for use in the United States.  In the absence of government oversight of private sector stem cell clinics, patients and consumers need to look to civil actions to protect their interests.

Plaintiff’s counsel, Mulligan, Banham & Findley, and Berger, Williams & Reynolds, in San Diego, continue on to the next phase of discovery and then to trial in the case.

 

0

Pedestrian Deaths Up By 35%

Recently, Smart Growth America released Dangerous By Design 2019, a report containing the results of their investigation of traffic accident data across the United States.  Smart Growth America is a non-profit organization that works with local and national governments and leaders to encourage safe development.

The report finds that pedestrian deaths on and around American roads increased 35% from 2008-2017. Pedestrian travel increased less than 1% during the same period.  Why are pedestrian deaths rising at such an alarming level, while the number of people walking is remaining essentially flat?

Why Is It Getting More Dangerous to Walk?

The Smart Growth report points the finger squarely at poor road design:

“Our federal policies, standards, and funding mechanisms that have been in place for decades produce dangerous roads that prioritize high speeds for cars over safety for all people.”

So where are the most dangerous places in America to talk a walk? Florida tops the list with a whopping 7 communities landing in the top 10 most deadly.  Our own Bakersfield, California is listed as the 7th most dangerous community overall.  Smart Growth reports that communities of older Americans, people of color, and low-income residents are the most affected by unsafe road design.

What Can We Do?

What can be done to push back against road designs that put pedestrians at risk?  Lawsuits against governments that design or approve unsafe road plans can be powerful tools.  But government immunities from criticism by lawsuits, such as “design immunity” in California, put up steep obstacles to such claims.  Design immunity prevents a government from being held liable for many discretionary decisions made by government officials.

It is recommended that if you or a loved one have been injured in a way that might suggest road design is even partially to blame, that you consult with a Pedestrian Injury Attorney, or Defective Road Design Attorney immediately, such as the attorneys at our law firm.

See the full report for a complete listing of the most dangerous communities in America for pedestrians, the most vulnerable populations, and an interactive map of the data collected by Smart Growth.

0

Federal Tort Claims Act and the Feres Doctrine

Suing the Federal Government for negligence can be a daunting task. There are very strict requirements that you must follow in order for your rights to be protected. Our experienced attorneys are here to help.

Under the Federal Tort Claims Act, an individual may file a lawsuit against the federal government for injuries incurred as a result of the negligence of a government employee. In Feres v. United States, the Supreme Court concluded that members of the United States armed forces could not bring a claim under the FTCA for injuries related to their military service. (Feres v. United States, 340 U.S. 135, 138 (1950).) It is important to note that the Feres Doctrine only applies to active duty military members. It does not apply to claims brought by military spouses, dependents, or retired military personnel for injuries suffered as a result of the negligence of a government employee. Several cases have applied the Feres Doctrine to expand its scope and further limit the rights of active duty armed forces personnel when they have been injured by the negligence of government employees at military hospitals.

A lawsuit filed on behalf of an active-duty nurse who died after giving birth at a naval hospital intends to change that. In 2015, Walter Daniel filed a wrongful death lawsuit on behalf of his wife, Rebekah Daniel. In the lawsuit, Mr. Daniel alleges that the medical staff at Bremerton Naval Hospital were negligent in caring for his wife when she began experiencing significant post-partum hemorrhaging. The Western District Court of Washington dismissed the lawsuit citing the Feres Doctrine. Mr. Daniel appealed the decision to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the District Court’s ruling concluding that the “case was barred by the Feres Doctrine” because the injury was “incident to [her] service.” (Daniels v. United States, 889 F.3d 978, 982 (2018).) The Court further stated “[i]f ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.” (Id.)

After a rehearing in front of the Ninth Circuit was denied, Mr. Daniel set out to determine if the Supreme Court would do just that – carve out an exception to the Feres Doctrine and allow him to pursue justice for his deceased wife. Mr. Daniel has filed a petition to have the Supreme Court of the United States review his wrongful death lawsuit.  It remains to be seen if Supreme Court of the United States will grant the petition and reconsider this archaic judicial doctrine. You can follow the Supreme Court and read its opinions at https://www.supremecourt.gov/opinions/slipopinion/18.

Our attorneys have successfully litigated multimillion dollar Federal tort cases against the United States government under the FTCA. If you are a military spouse, dependent, retired military personnel, or your child was injured at birth in a government hospital, you may be entitled to compensation. Please contact Mulligan, Banham, and Findley to speak with a lawyer about your rights.

0

 

Unfortunately, it has been a record time for fires all over California.  We all worry about the safety of our families, followed by fear over safety of our homes and businesses. When we pay for insurance, we shouldn’t have to also worry about being paid for our losses…or do we?

We help people all over California. If you or your loved ones have been denied lawful payment for your loss by your insurance company, please call us. Insurance companies have a duty to us, their insured policyholders, to act in good faith when responding to claims for settlement to cover our fire losses.

What Do I Do if I Suffer a Fire Loss?

  • IF YOUR LOSS IS FROM A FIRE IN AN AREA WHERE THE GOVERNMENT HAS CALLED A STATE OF EMERGENCY, you are entitled to an advance on living expenses for covered losses, to get you settled immediately after the loss– even before you submit receipts and document expenses.

 

  • Ask your insurer for a list of what living expenses will be covered, and be sure to keep receipts for them.

 

  • You will then be required to submit a claim and proof of loss, and coverage for additional living expenses shall be for a period of up to 24 months or up to your policy limits.[i]

 

  • For any fire loss, call your insurance company as soon as you have a covered loss. Note the date, time of your call and with whom you spoke. Confirm all conversations in writing (an email or letter). Request:
    • A full copy of your insurance policy, including all riders, updates, exclusions and the declarations page.
    • Any information they will require you to file to submit a claim.

 

  • Take pictures of all of your losses and keep proof of costs and replacement costs and all out of pocket expenses, including receipts, estimates for repair or replacement. Note: Your insurance company cannot make unreasonable demands on you for proof of your loss.  [ii]

 

  • Send your insurance company a written claim with proof of losses as soon as possible (and keep a copy of it all!) Important: Your insurer must tell you all deadlines that apply to your claim. [iii] If you miss the deadlines, you may lose all rights against the insurance company to be paid.

 

  • Keep a log of all communications with the insurance company (including the date and time of the communication, whom you spoke to and what was said). Confirm it in an email.

 

  • If you are unsatisfied with the handling of your claim, the amount offered for your losses by the insurer, or if the claim is denied, speak with an experienced attorney immediately. If you do not file suit within one year, you may lose all rights for compensation.

What Does the Law Require of My Insurance Company Once I File a Claim?

 

  • When investigating the claim, your insurer has a duty to diligently search for and consider all evidence that supports coverage of your loss. If your insurance company does not do this, call an experienced California lawyer immediately because you may have a claim for the implied covenant of good faith and fair dealing based on the insurer’s failure or refusal to conduct a proper investigation of your claim.

 

  • California courts have held that to fulfill its obligation to you, the insurance company must give at least as much consideration to your interests as it gives to its own interests. If the insurer seeks to discover only the evidence that defeats your claim, then it is holding its own interest above that of you, its insured, and it will be liable to you for your losses. [iv]

How Much Do I Need to Cooperate With My Insurance Company’s Investigation?

  • You must cooperate with the insurer’s investigation of your claim, but you do not have any duty to cooperate with harassing adjusters or unreasonable requests. If you feel wrongfully pressured, request the adjuster to communicate in writing with all questions they have for you and then promptly respond in writing, or seek an attorney’s advice.

 

How Much Time Does My Insurance Company Have to Investigate My Claim?

  • Your rights are initially protected only once you file a written claim with your insurance company, and then only until they either agree to pay or they deny your claim. Do not wait- file the claim as soon as possible, and if you do not file it within the time allotted, you may lose all rights to be paid for your losses, no matter how bad your losses or how unreasonable the insurer may be in responding to you.[v]

 

  • Once you file a written claim under California law, you are entitled to prompt and timely responses from your insurer.  The company must respond to your communications within 15 calendar days and give you a complete response based on known information. This includes answers to your questions.[vi]

 

  • In California, insurance companies are required to accept or deny your claim within 40 calendar days after receiving proof of your claim.

 

  • If an insurer denies or rejects your claim for fire loss, it must do so in writing and shall provide you a statement listing all of the reasons for such rejection which is then within the insurer’s knowledge.

 

  • If your insurer needs more time to consider your claim, it must give you written notice of the need for additional time, including any additional information the insurer requires in order to make a decision and any reasons for the insurer’s inability to make a determination and provide you with an estimate as to when the determination can be made.

 

  • If your claim is accepted, payment must be made within 30 days from the date settlement was reached.

 

  • In California, insurance companies have a duty to properly investigate your claim for compensation for loss due to fire. If your insurance company acts unreasonably in the investigation of your claim, you may be able to recover money for losses caused by the delay in paying you fully for your losses.

 

  • If your claim is denied or insufficient payment is offered, do not delay in hiring an experienced California lawyer. A lawsuit must be filed within one year of the denial of the payment or you will lose all rights to payment from the insurer.

What Does it Take to Win a Lawsuit Against My Insurance Company?

 

To win your case, a lawyer will have to establish that the insurer acted unreasonably (without a good reason) by failing to properly investigate your claim. What does this mean? To establish this claim against your insurance company, a lawyer will need to prove all of the following:

 

  • You suffered a loss covered under an insurance policy;

 

  • You properly presented a timely claim to your insurance company;

 

  • Your insurance company failed to conduct a full, fair, prompt, and thorough investigation of your claim;

 

  • You were harmed by this denial or delay in paying you fully for your claim; and,

 

  • Your insurer’s failure to properly investigate your claim was a substantial factor in causing you harm.[vii]

If I Hire a Lawyer, What Can I Hope to Recover in My Claim Against the Insurer for Bad Faith Denial of My Claim?

Depending on the facts of your claim, you may be entitled to recover:

  • Full value of your covered losses.
  • Out of pocket expenses reasonably incurred because of the insurer’s unreasonable delay/denial of benefits.
  • Costs of your lawsuit, including attorney’s fees and court costs
  • Damages for anxiety and emotional distress caused by your insurer’s unreasonable delay or denial of benefits.

If you have been denied coverage for your fire loss by your insurer, call an attorney immediately.

MULLIGAN, BANHAM & FINDLEY have successfully battled large corporations and insurance companies seeking to deny just compensation for losses.  Call us or use the contact form on this page today.

————————————————–

[i]  Cal. Ins. Code Section 2051.5

[ii] Cal. Ins. Code Section 790.03

[iii] Cal. Ins. Code Section 2071 and Cal Code of Regs Section 2695.7

[iv] Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617, 1620, Jordan v. Allstate Ins. Co. (2007) 148

Cal.App.4th 1062, 1066

[v] Cal. Ins. Code Section Section 790.03

[vi] Cal. Code of Regs Section 2695

[vii] CACI No. 2332. Bad Faith (First Party)—Failure to Properly Investigate Claim Judicial Council of California Civil Jury Instructions (2017 edition)

 

0