... and Justice for All

Parents' Underinsured Motor Vehicle Coverage Applies to Vehicle Owned by Child

    Underinsured motor vehicle insurance (UIM) coverage that parents purchased applied to the passenger (one of their children) who was tragically killed in a truck owned by another of their children the Kentucky Supreme Court ruled in Williams v. State Farm (No. 2006-SC-000856 decided June 19, 2008).  The key issue, as the Court saw it, was whether the truck was "furnished" to the driver, one of their children who lived with them.  Since it was undisputed that the child owned the truck, the Court concluded that the truck was not "furnished" to him within the meaning of the policy.  Therefore, the Court ruled that the parents' UIM coverage applied. 

Robert L. Abell
www.RobertAbellLaw.com

Nurses Report Staffing Shortages Impact Patient Care

    An American Nurses Association "Safe Staffing" poll of more than 10,000 nurses reports widespread concern that inadequate nurse staffing is negatively impacting the quality of patient care, according to Dr. Kevin Kavanaugh in "Hospitals Reckless to Leave Floors Short of Nurses" published by the Lexington Herald-Leader on June 28.  Of the nurses polled almost 75% reported that staffing on their units is not sufficient, well over half knew a colleague that had left nursing because of concerns for short staffing, and that almost 50% would not be confident in the care provided a loved one by the hospital where they worked.
    Dr. Kavanaugh also reports that, while Medicare regulations require that nursing help be always available for bedside assistance for a patient, well less than two-thirds of the patients responding to a poll by the American Medical Association found such assistance available.  Also, only slightly more than two-thirds of the respondents reported finding their hospital rooms and bathrooms clean. 

Robert L. Abell
www.RobertAbellLaw.com

Fairness of Consumer Arbitration Procedures Questioned

    Business Week reports in "Banks vs. Consumers (Guess Who Wins)" that National Arbitration Forum (NAF), one of the country's largest for-profit arbitration companies courts corporations against consumers by claiming that it will enable credit card companies to markedly increase their recovery rates over their existing collection methods.  Business Week also reports that NAF marketing materials brag that creditors may use NAF procedural maneuvers to tilt the process in their favor.  A Harvard Law School professor testified under oath that she found NAF processes so unfair and biased that she resigned as an NAF arbitrator, Business Week also reports.  Arbitration provisions are contained in many consumer agreements and many consumers unknowingly and unwittingly agree to submit a dispute to be decided by an arbitrator.  There are strong incentives for arbitration companies to favor the corporations that are their best customers.  Ask yourself: what if a judge solicited cases from big corporations by offering them a business-friendly venue to resolve their disputes with consumers and individuals?  Would that be fair? 

Robert L. Abell
www.RobertAbellLaw.com

Food-Borne Illness Case Settled

    As a salmonella outbreak tied to tomatoes has spread into 22 states and the Food and Drug Administration continues to fail to protect the American public, the Associated Press reports the settlement of a food-borne illness case from Milwaukee involving the death of a 3 year old girl from an e-coli related syndrome.  The case involved exposure to tainted meat in 2000 at a Sizzler restaurant in Milwaukee.   Along the way, a trial court judge dismissed the case on preemption ground, accepting the meat producer's argument that it should not be held liable, accountable or responsible because it had complied with FDA regulations in handling the beef.   The lawyer for the child's family described the case "as a study in perseverance."  It is also a case study of how inadequate FDA regulation is in protecting the public and how essential is state tort law in holding corporations accountable to that public.

Robert L. Abell
www.RobertAbellLaw.com

Senator Charges "Criminal Negligence" In FDA's Failure to Protect Food Supply

    As a salmonella outbreak linked to some types of raw tomatoes sickens hundreds of Americans across 17 states, a Republican Senator, Arlen Specter of Pennsylvania, charges the Bush Administration with "criminal negligence" in not moving faster to provide the Food and Drug Administration (FDA) with monies for food protection efforts, the New York Times reports. 
    Last November the FDA released a "food protection plan" but the Bush Administration did not provide any funds for it and did not ask for any money for until Monday, June 9.  This failure Senator Specter informed health and human services secretary Michael O. Leavitt amounted to "criminal negligence" that was "subjecting people to bodily injury and death."  Since 1990 there have been 13 multistate outbreaks of salmonella poisoning related to tomatoes, according to the Centers for Disease Control and Prevention.

Robert L. Abell
www.RobertAbellLaw.com

President Bush Should Support Fair Pay Law

President Bush should follow the recent signing of the anti-genetic discrimination bill with support for passage of the Lilly Ledbetter Fair Pay Act, which would restore the ability of women who are unfairly and wrongly underpaid because of gender discrimination to recover the fair pay they have earned.  That ability was taken away last year by the Supreme Court in a 5-4 decision that disregarded the overwhelming consensus of the intermediate federal appeals courts and a common sense appreciation for the regular workplace. 

Lilly Ledbetter worked as an area supervisor for Goodyear in Alabama, the only woman out of a total of 15 area supervisors.  After nearly 20 years of faithful service and hard work, she learned that she was being paid from $500 to $1500 less per month than all her male counterparts including a number with lesser seniority.  She filed suit, a jury ruled that gender discrimination was the basis for her being underpaid and she was awarded some $250,000 of wages she had rightfully and fairly earned. 

             The Supreme Court took it away, ruling 5-4 that Ledbetter could recover only that lesser pay that occurred within the last six months of her employment.  Goodyear, of course, like many employers – studies have shown that one-third of private sector employers prohibit employees from discussing their pay – kept a tight lid on salary and pay information.  As a result, Ledbetter, despite her undeniable qualifications and hard work, was grossly underpaid in comparison with her male counterparts for many, many years.  Only when she found out what had been done to her did she file suit.  But the Supreme Court ruled no matter, she waited too late.

                The Lilly Ledbetter Fair Pay Act simply seeks to restore what every woman working in America had before the Supreme Court’s decision: that is, a realistic opportunity to recover in court the earnings and benefits that they deserve based on their performance and qualifications but have been denied because of their gender. The House of Representatives passed the bill overwhelmingly, but it died in the Senate in the face of a Republican-led filibuster with both of Kentucky’s Senators, McConnell and Bunning, standing tall against equal pay for equal work.

                It would seem a very American notion: that women (and everyone else for that matter) should be paid fairly and equally for the work their skills, abilities and labor enables them to do.  President Bush’s support for the anti-genetic discrimination bill is a sensible and reasoned response to a real world, real life problem. The Lilly Ledbetter Fair Pay Act is the same, and the President, along with Kentucky’s Senators, should line up in support of equal pay for equal work.

Robert L. Abell
www.RobertAbellLaw.com