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Concussion Laws in Indiana and Illinois Try to Keep Kids Safer As They Play Football and Other School Sports

January 26th, 2012 by admin

We’ve posted about new research studies that confirm how young kids playing hockey or football or other contact sports at their school can be seriously injured and permanently disabled by brain injuries and concussions.

Slowly but surely, state legislatures are starting to take heed of these research results (and the outcry from parents whose kids have been hurt while playing a sport) and now, Indiana and Illinois have both recently passed state concussion laws.

According to SafeKids.Org, Indiana and Illinois joined 31 other states in passing legislation designed to protect children playing school sports from suffering concussions and permanent brain injuries.

Illinois Concussion Law (Public Act 097-0204)

Under the Illinois Concussion Law, each school board must adopt a concussion policy that conforms to the established guidelines of the Illinois High School Association.

Both the student athlete and the student’s parent must sign a written acknowledgement of the school’s concussion policy.

Before a student athlete can play a sport again after being removed from play because of concussion or suspected concussion, the student has to be checked by a health care provider and that provider must give the student a written clearance to participate in the sporting activity.

Indiana Concussion Law (Indiana Code 20-34-7)

The Indiana Concussion Law tasks the State Department of Education with the dissemination of guidelines, information sheets, and forms detailing the nature and risk of concussions and head injuries to schools which are to distribute the Department’s work to school coaches, student athletes and parents of student athletes.

In Indiana, all high school student athletes and their parents must acknowledge by their signature that they have received the Department of Education’s brain injury and concussion information on a form collected by the student athlete’s coach each year before the student can start his or her first practice.

If there is a suspicion that a student athlete has sustained a head injury or concussion, the student must be removed from play at that time (the time of the suspected injury).  He or she cannot return to the sport until the student has been evaluated by a licensed health care provider trained in head injuries and that health care provider has given him or her a written clearance form to return to play.

Posted in Illinois Wrongful Death, Indiana Wrongful Death, School & Playground Injuries, Serious Personal Injury, Sports & Boating Accidents | No Comments »

Summary of New Fed Laws Governing Commercial Truck Drivers Effective February 27, 2012: Making the Roads Safer For All of Us (If They Are Followed)

January 24th, 2012 by admin

Approximately one month from today, on February 27, 2012, federal law will change regarding commercial trucks driven on American roads as the Federal Motor Carrier Safety Administration (FMCSA) rule changes go into effect.  These are a part of the Hours of Service regulations that have been so hotly debated over the past few years.

We’ve posted about aspects of these new rules before along with the trucking industry’s response to the agency’s proposals; however, it’s important to know the extent of what these new laws are – especially when trucking companies are already voicing their concerns that these new regulations will burden those trying to logistically plan trucking routes.

Summary of the New FMCSA Truck Driver Rules Effective February 2012

Here is a summary of the new February 2012 rules that govern truck drivers driving commercial trucks (big rigs; semis; tractor trailers; etc.) as passed by FMCSA (others will become law later in the year):

1.  Restarts. Two rules work together to impose a new regulation involving 34-hour restarts.

  • 34 hour restarts can be used once a week
  • must have 1 AM to 5 AM home terminal time

2.  Rest Breaks. Now, a new rule requires that trucks cannot drive any longer than 8 hours without taking a 30 minute rest break.

3.  On-Duty Time.  If the truck driver is resting in a parked truck, then he or she can count this as rest time; it is no longer considered on-duty time even though they technically may be setting behind the wheel. It can extend the weekly limits but it cannot extend the 14 consecutive hour daily limit. There is no limit on how long the trucker can rest in a parked truck.

4.  In Attendance Time. This can be tallied as break time if the truck driver is not doing any other work tasks at the time.

5.  Daily HOS Violations. FMCSA considers that 3 hours of HOS violations as ‘egregious’ (i.e., going over the 11 hour per day limit by 3 or more hours) which will be reflected in higher fines, to the tune of $2,750 for the driver and $11,000 for the carrier.

Hours of Service regulations are designed to protect the truck driver and those with whom he shares the road from the ramifications of driving too far and too long without a break behind the wheel of a big commercial vehicle.  The tragedies of big rig semi trucks crashing with other vehicles on the road (which usually weigh so much less than that tractor trailer truck) are often horrific as fatalities are usually involved.

These new regulations are designed to save lives.  And they will.  If truck drivers and carriers follow them.

Posted in Semi-Truck Crashes, Serious Personal Injury, Transportation, Work Related, Wrongful Death | No Comments »

Indiana Nursing Homes Should Call the Closest EMS in Emergencies, But They’ve Been Known to Choose the Cheaper Option

January 19th, 2012 by admin

Barbara Parcel died last March because her nursing home didn’t call the 911 responders that were minutes away, but instead contacted a hired company that was much farther away.  That company’s EMS unit arrived too late to save Mrs. Parcel, who died from a heart attack there at Indiana’s  Kindred Healthcare’s Wildwood Healthcare.  Her friend, Elsie, was a witness to the events and reported that it took over an hour for the EMS ambulance to show up in order to transport Mrs. Parcel to the hospital.

Local news reporters (13 Investigates) first discovered that the nursing home had never called 911, which would have brought nearby paramedics to the scene; instead Wildwood Healthcare called the private ambulance company with which it had a contract.  We can assume it was cheaper for Wildwood to call the contract service than to call the 911 service.   You can read the March 2011 expose online here.

Indiana State Senator Patricia Miller Pushes Senate Bill 0224 as New Indiana Law for Nursing Homes

Responding to the tragic story of Barbara Parcel, Indiana State Senator Patricia Miller authored and presented a bill which should become law in the State of Indiana.  You can read the proposed law as she wrote it here.

If passed, this law will require nursing homes to forego their bottom line and to call to get the fastest emergency medical services team in place.  Which is good news for everyone who either lives in an assisted facility or who has a loved one residing in a nursing home.

You can track the bill as it moves through the Indiana Legislature here.

Indiana Courts Are Already At the Ready to Right Nursing Home Abuse and Neglect

Nursing homes have a legal duty to care for those that reside at their facilities.  If they fail to meet that duty, just as a doctor fails in his care of a patient or a hospital commits an error in care, they can be found legally responsible for the wrongful death of their resident.

These laws are already on the books for Indiana victims and their families.  They are made the basis of a personal injury lawsuit filed against the nursing home and anyone else that has contributed to the harm.

Posted in Indiana Wrongful Death, Medical Malpractice, Serious Personal Injury, Wrongful Death | No Comments »

Video of Chicago Teen Beaten By Gang Goes Viral: Assaults Upon Children Must Be Stopped

January 17th, 2012 by admin

Today, a YouTube video has gone viral that shows the vicious and cruel beating of a teenager by six individuals who are now being held by Chicago police for charges related to the beating.  Two more men are being sought in addition to the six behind bars this afternoon.  Because of its graphic nature, we are not placing the video here but those interested can see the video at any of the news sites linked in this post.

The boy was hurt by the assault which took place behind a local elementary school.

According to news reports, this beating was done in response to an earlier attack, where 20 people assaulted two teens.  On Sunday afternoon, the 17 year old boy is shown on the video (that lasts over 3 minutes) being overtaken and having his wallet and shoes taken from him.  He is hit, kicked, and drug along the ground in the video.   He is choked.  Some take big chunks of ice and use them as weapons.

At last, the boy is still, lying there.  Helpless.  Hurt.  All while the video camera captures everything for the eventual YouTube upload. Eventually, the victim rises and runs away.

Interestingly, the very fact that the evildoers put the video online may prove to be their undoing.  As the video went viral, media reports are that over 500 comments were left and calls made to the local law enforcement, some going so far as to name names of those shown beating the boy on the screen.  Virtual finger pointing.  The web version of an eyewitness testifying?

Today, this event is making the national news.  The good thing is that the victim has been treated and released from a local hospital.  And it’s being reported that the gang members will be charged as this being a “strong arm robbery.”

This Is A Growing National Problem – Videotaped Assaults Are Trendy.

Similar videos exist for other attacks upon kids in this country.  Consider the videotaped beating on a Mississippi school bus.  Or the similar group of teens assault upon a 13 year old in Philidelphia. There are more; you just have to surf the web for them.

Assaults Upon Children in this Country Must Stop

Arrests will be made, no doubt, in this Chicago case.  However, in this case as well as countless other beatings of children in this country, there is more than can be done to find justice for the victim and to put an end to this kind of violence: personal injury lawsuits.

In assaults on children, private civil lawsuits can work to force better protections for kids who are in danger of being hurt and assaulted like the teen shown in this viral video.   How the causes of action are framed would depend upon the situation; however, one clear example would be municipal liability causes of action.  Here, violent assaults on public school or city  property can be the basis of a liability suit if there were shown to be inadequate security or neglectful property maintenance that was a cause of the harm.  City governments, school districts, owners of premises, etc. may be held legally accountable for not doing more to protect kids from this sort of thing.

These child beating law suits are being filed by parents all over the country, and it perhaps through these civil suits that school bullying will be become the subject of widespread assault by those with the power to stop these horrible injuries on children.

Posted in Insurance Claims, School & Playground Injuries, Serious Personal Injury | No Comments »

New Illinois Laws To Protect People From Injury or Death: 2012 Has Lots of New Safety Statutes on the Books

January 12th, 2012 by admin

In addition to the new law that lets motorcycles and bicycles run red lights in the State of Illinois that we posted about last week, a lot of other laws were passed by a busy state legislature that are intended to make life safer for everyone in Illinois, including the following laws that have been passed in hopes that injuries and death will be averted:

1.  Injuries or Deaths in Airplane Crashes. It is against the law in Illinois for anyone to shine a laser light into the cockpit of an airplane that is in the process of taking off or landing. And, yes, apparently this had been happening quite a bit in the Chicago O’Hare area. (House Bill 167)

2. Injuries or Deaths in School and Playground Injuries.  Now, Illinois school officials can suspend, or even permanently expel, any public school student who threatens another student or an employee of the school district, via the Web in online bullying. (House Bill 3281)

3.  Injuries or Deaths in Auto Accidents. Now, adults riding in the back seat of a car must buckle up just like those in the front seat, or face being fined and ticketed. (House Bill 219)

4.  Injuries or Deaths in Big Rig Crashes. Now, semi trucks can drive along Illinois roadways just like any small sedan at the exact same speed, not just in certain sections of trucking routes (Senate Bill 1913)

Posted in Auto Accidents, Defective Products, Motorcycle Accidents, Product Liability, Semi-Truck Crashes, Serious Personal Injury, Transportation, Wrongful Death | No Comments »

Illinois New Law Lets Motorcycles and Bicycles Run Red Lights: Sounds Good, But There are Risks

January 10th, 2012 by admin

Motorcycles are dangerous for those who ride them on Illinois roadways, but there are many people living in Indiana and Illinois and elsewhere that love their motorcycles and believe that riding a motorcycle offers a kind of freedom that cannot be found elsewhere.  For motorcycle riders everywhere, there’s a new law in Illinois that may sound very, very good: now, in Illinois, motorcyclists (and those on bicycles, too) can run red lights.

Run That Red Light in Illinois.  It’s Legal Now.

Effective January 2012, in Illinois a new law has been passed that allows those riding on motorcycles and bicycles to run a red light, but there’s a hitch.  They do have to wait a ‘reasonable’ amount of time.  (Police are suggesting that “reasonable” means two minutes.)

Now, the Illinois Legislature had its reasons.  Motorcycles and bikes will be allowed to run red lights after a “reasonable” time because they don’t weigh enough to be recognized by the the traffic-light sensors.  Which means, until now, they could just sit there at a red light until a car or truck or some sort of vehicle that had enough weight to trigger the sensor pulled up.  Or they could run the red light and hope for the best.

The new law states:

After stopping, the driver of a motorcycle or bicycle facing a steady red signal which fails to change to a green signal within a reasonable period of time because of a signal malfunction or because the signal has failed to detect the arrival of the motorcycle or bicycle due to the vehicle’s size or weight, shall have the right to proceed subject to the rules applicable after making a stop at a stop sign as required by section 11-1204 of this code.

This is a good thing, makes sense.  It does mean that riders need to be even more vigilant before pulling out into the roadway against that red light.  Motorcycle accidents are often the cause of serious injury or death to the motorcyclist and by taking advantage of this statute, a defense attorney may try and argue in the future that the motorcycle rider bore the risk of his injuries or wrongful death even though a car or truck crashed into him, so the insurance company doesn’t have to pay a claim.

Be careful out there.

Posted in Illinois Wrongful Death, Motorcycle Accidents, Serious Personal Injury | No Comments »

Illinois Supreme Court Case Does Not Make Hosts Responsible for Underage Drinking at Their Home

January 5th, 2012 by admin

In each state, the highest court in the land makes decisions that in turn become law for that state – just like the state legislature, just like the Governor and his branch.  Recently, the Illinois Supreme Court made some law that impacts everyone in Illinois – at least anyone who ever acts as a “social host” at their home or lets their kids goes to visit someone else’s house.

The case is Bell v. Hutsell.  You can read it online here.

In the case itself a young man (18 years old) named Daniel Bell went over to his friend’s house for a party.  Daniel drank at the party and then Daniel left the party in a car and was tragically killed in a car crash.

Daniel Bell’s mother sued, based on that automobile accident, under the Illinois wrongful death statutes, and that lawsuit made its way up from the trial court through the lower leel appellate court to the highest court in the state, the Illinois Supreme Court.

There, the question boiled down to whether or not under Illinois law, Janet Bell as the grieving mother of Daniel Bell could be awarded damages from the parents of Daniel’s friend who hosted the party at their house where Daniel went and drank the alcoholic beverages that ultimately resulted in his death.

After all, the parents knew there were minors at the party; they knew that alcohol was present; and they knew that the minors were drinking it.  The parents where the house party was taking place didn’t do anything to stop the underage drinking.

Legally, the question became whether or not the parents who had the party in their home where minors were drinking could be held liable for a minor guest’s death under the theory of social host liability.

The Illinois Supreme Court ruled that the parents of Daniel Bell’s friend did not have a legal duty to prevent underage drinking on their property under Illinois law.  This meant that the Bell’s wrongful death action lost one of it’s elements — duty under the law — and now, they’ve lost their son and their wrongful death lawsuit has been dismissed.

Remember this, when your teenagers leave to go to a party.  Those parents aren’t going to be responsible under Illinois Law to supervise any underage drinking there.

Posted in Illinois Wrongful Death, Serious Personal Injury, Wrongful Death | No Comments »

Toy Safety: Protecting Children From Being Hurt By Dangerous Toys That Are Sold Everyday

January 3rd, 2012 by admin

Now that the holidays are over and the wrapping paper has been tossed and the batteries bought, those new shiny toys are being used quite a bit by happy kids all over Indiana and Illinois and all the rest of the good old U.S.A.

Problem is: profit happy toy companies still sell toys that can serious injure children all for the sake of making a buck.  And, as a recent article in the Los Angeles Times reports, it’s usually only after innocent little ones have been hurt that we hear about another dangerous or deadly toy that has been manufactured, distributed, and sold in this country. To read the entire Los Angeles Times article, check out “Parents, you are top regulator when it comes to toy safety.”

The news story has it partly right.  Parents are the first line of defense when there is a dangerous toy.  However, toy safety must be a concern at any day care, elementary school, or child-friendly pizza joint where toys and kids coexist.

If your child is injured by a toy, then not only are the toy makers responsible, but the seller as well as the place where the child came into contact with that toy may be legally responsible as well (including schools, restaurants, doctors’ offices, playgrounds, etc.).

The Child Safety Protection Act was passed in 2005 to help protect kids from harm.  You can read its online fact sheet here.  This is federal law that holds manufacturers, etc. responsible for toy safety.  Product liabilty laws in both Indiana and Illinois also exist to protect kids who have been hurt by a toy.

26th Annual Trouble in Toyland Study Released for 2011

Every year for many years now, a non-profit organization — USPIRG — has released its annual study of dangerous toys and toy safety.  This year, “Trouble in Toyland” reported that there are still dangers present in the American marketplace for children and their toys.  Included in their concerns:

Lead Continues to be a Hazard in Toys
Exposure to lead can affect almost every organ and system in the human body, especially the central nervous system. Lead is especially harmful to the brains of young children and has no business in children’s products. This year our investigators found 2 toys whose lead levels exceeded the current 300ppm standard set by the CPSIA and one additional toy that exceeded its prospective 100ppm standard; we found 4 additional toys that exceeded the American Academy of Pediatrics recommendation that lead levels in toys should not exceed 40ppm.

Phthalates in Toys
Numerous studies have documented the potential negative health effects of exposure to phthalates in the womb or in child development. U.S. EPA studies show the cumulative impact of different phthalates leads to an exponential increase in harms including premature delivery and reproductive defects. The CPSIA permanently banned toys containing three phthalates and set temporary limits on three others, while tests continue. No toy or childcare article can contain more than 1000ppm of each of the six phthalates.

This year, we found two toys that laboratory testing showed to contain 42,000 ppm and 77,000 ppm levels of phthalates. These products exceed limits allowed by the CPSIA by 42 and 77 times, respectively.

Choking Hazards
Choking on small toy parts, on small balls, on marbles and balloons continues to be the major cause of toy-related deaths and injuries. Between 1990 and 2010, over 200 children died from a choking incident.

This year we found several toys that violated CPSC’s small parts for toys standard intended for children less than 3 years old. We also found “near small part” toys that – while not in violation of current regulations — support our call for the small parts test to be made less permissive. Finally, we found toys intended for older children that failed to provide choking hazards warnings required for small parts or small balls.

Noisy Toys
Research has shown a third of Americans with hearing loss can attribute it in part to noise. The third National Health and Nutrition Examination Survey showed one in five U.S. children will have some degree of hearing loss by the time they reach age 12; this may be in part due to many children using toys and other children’s products that emit loud sounds such as music players. The National Institute on Deafness and other Communication Disorders advises that prolonged exposure to noise above 85 decibels will cause gradual hearing loss in any age range. We found 1 toy on store shelves that exceeded the recommended continuous exposure to 85-decibel limit and 2 close-to-the-ear toys that exceeded the 65 decibel limit when measured with a digital sound level meter.

Posted in Defective Products, Product Liability, School & Playground Injuries, Serious Personal Injury, Wrongful Death | No Comments »

Feds Release Final Truck Driver Hours of Service (HOS) Rule: 11 Hour Limit and More Changes

December 29th, 2011 by admin

Truck Drivers will have to obey new laws on how long they drive and how long they have to rest between trips, which means the roads will be safer for all of us.

After so much discussion and so much challenge by various factions of the trucking industry, the final version of the “HOS Rule” has been issued by the federal government.  The official announcement came on December 22, 2011, by U.S. Secretary of Transportation Ray LaHood. You can read the full text of the new HOS Rule online at the Federal Motor Carrier Safety Adminstration (FMCSA) site where it is available as a .pdf download.

What does the new Final HOS Rule Do? Here are some highlights:

  1. The Final Rule has kept the 11-hour per day driving limit that truck drivers now have to follow (which means that those fighting to cut that number back to 10 or lower lost here).
  2. Who’s working?  “On duty time” under the New Rule means any time spent in the truck itself except for the sleeper. It does not include up to 2 hours in the passenger seat right before or right after an 8 hour break in the sleeper when the truck is on the road.  It does not include time resting in a parked truck.   Truckers are on duty while they are waiting to load or unload unless their employer has officially released them from being on the job for the load/unload.
  3. Truck drivers moving big rig semi tractor trailer commercial trucks on American roads are not going to have the same work week:  the new rule takes away 12 hours from the total that a truck driver can be on the road in one week’s time.  That’s a day and a half — a big difference to the trucker and the trucking industry.  Total hours a truck driver can work in one week is now 70 hours, down from 82.
  4. Restarts can be used once every 7 days; under the New Rule, the truck driver gets 2 or more nights of rest between 1 and 5 o’clock in the morning, both changes to the old  restart rule.
  5. Under the New Rule, commercial truck drivers have to stop and take a break of 30 minutes or more after driving for 8 hours on the road.  If the trucker thinks they need that 30 minute break before hitting that 8-hour mark, then they are free to take a break within that 8 hour block as well.

Official Announcement from the Department of Transportation:

WASHINGTON – U.S. Transportation Secretary Ray LaHood today announced a final rule that employs the latest research in driver fatigue to make sure truck drivers can get the rest they need to operate safely when on the road. The new rule by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) revises the hours-of-service (HOS) safety requirements for commercial truck drivers.

“Trucking is a difficult job, and a big rig can be deadly when a driver is tired and overworked,” said Transportation Secretary Ray LaHood. “This final rule will help prevent fatigue-related truck crashes and save lives. Truck drivers deserve a work environment that allows them to perform their jobs safely.”

As part of the HOS rulemaking process, FMCSA held six public listening sessions across the country and encouraged safety advocates, drivers, truck company owners, law enforcement and the public to share their input on HOS requirements. The listening sessions were live webcast on the FMCSA Web site, allowing a broad cross-section of individuals to participate in the development of this safety-critical rule.

“This final rule is the culmination of the most extensive and transparent public outreach effort in our agency’s history,” said FMCSA Administrator Anne S. Ferro. “With robust input from all areas of the trucking community, coupled with the latest scientific research, we carefully crafted a rule acknowledging that when truckers are rested, alert and focused on safety, it makes our roadways safer.”

FMCSA’s new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver’s work week to 70 hours.

In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.

The final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.

The rule requires truck drivers who maximize their weekly work hours to take at least two nights’ rest when their 24-hour body clock demands sleep the most – from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule’s “34-hour restart” provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period.

Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.

Commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013. The rule is being sent to the Federal Register today and is currently available on FMCSA’s Web site at http://www.fmcsa.dot.gov/HOSFinalRule.


Posted in Job Site Injury, Semi-Truck Crashes, Serious Personal Injury, Transportation, Work Related | No Comments »

Indiana State Fair Tragedy Labelled Biggest Story of 2011: Where You Get Injured Makes a Difference in Damages Award You May Receive

December 27th, 2011 by admin

In one of the many end of the year recaps that are being circulated this week, the Indianapolis Star has published its article “the Top 10 Local Stories of 2011,” and topping their list is the tragic crash of the stage rigging at this year’s Indiana State Fair.  (For details, check out our earlier post here or watch this video where Kenneth J. Allen discusses the State Fair tragedy’s consequences.)

One Lesson From the Indiana State Fair Tragedy: Justice May Depend Upon Where the Accident Happened

As Kenneth J. Allen discusses in the above video, the fact that this tragedy took place where it did made a difference for those seeking personal injury damages under the law.  An injury that occurred on a government-related site got different treatment under the law than if would have if the exact same incident had happened at a privately owned location.  The Indiana State Fair took place on state owned fairgrounds.

Under Indiana law, this meant that a cap applied to the damages claim: a cap of $5 million.  If the accident had not been on publicly owned land, then the cap would not be an issue.

Attorney General Announces Settlement in December 2011 – $5 Million is Paid Out

On December 19, 2011, Indiana Attorney General Greg Zoeller officially announced that settlements had been reached with 64 of the 65 claimants in the Indiana State Fair tragedy and that his office expected checks to begin being sent out to these victims by the end of the month. 

Meanwhile, Kenneth J. Allen is working for justice here, going into federal court to ask that this $5 million cap be nixed for the Indiana State Fair victims.  In December 2011, the federal judge okayed Allen’s plan to have federal review of the situation. More on that fight in the months to come.

The Indiana Attorney General seems to have ended 2011 with checks being sent and an idea that this is a done deal.  From the AG’s news release:

“Deciding on compensation for the victims of the State Fair tragedy is one of the most difficult duties the Indiana Attorney General’s Office has ever undertaken. From the start we knew that no matter how we divided the $5 million available, it could never replace the seven lives lost nor erase the pain of the injured and grieving. We did all that was possible to treat victims equitably and to assist them with their medical and financial needs within the amount the law allows,” Zoeller said.

Defending the state’s Tort Claim Fund, which is made up of tax dollars, from claims and potential lawsuits is one of the duties of the Indiana Attorney General’s Office. After the deadly stage rigging collapse August 13 at the Indiana State Fair, Zoeller announced that he would make available the $5 million in tort claim funds the State has, without regard to liability.

Working with nationally-known expert Kenneth Feinberg who administered victim compensation programs after 9/11 and the BP Gulf oil spill, Zoeller’s office designed a victim-centered program where victims could submit tort claims to the state and receive settlement payments on an expedited basis, even if they did not hire an attorney.

A total of 114 individual claimants – including the representatives of the seven deceased – filed a total 101 claims and utilized a customized State Fair claim form the Attorney General’s Office developed. The State also retained a claims management firm, JWF Specialty Company, to receive and review the claims and follow up with claimants to obtain additional medical documentation.

Under the compensation protocol Feinberg helped design, the estates of the seven deceased victims were guaranteed settlements of at least $300,000 each. Another 58 claimants who were most seriously injured and met at least one other protocol criteria were offered payments equal to approximately 65 percent of their medical and hospital bills submitted to date. Since that amount will exhaust the rest of the $5 million the State has available, claimants with non-physical injuries did not receive settlement offers under the protocol.

To be offered settlements, claimants or their attorneys were required to submit documentation of hospital expenses; the form asked that documentation be attached. Offers could not be extended to any claim that lacked medical documentation or where the requested information was not provided. JWF Specialty Company was available to answer questions from claimants and their attorneys throughout the process.

On December 6 the State sent offer notices to 65 eligible claimants or their representatives requesting a prompt reply. Although claimants had the legal right to decline the offers, all but one accepted, including the estates of all seven deceased victims. The remaining $1,691 that one claimant’s attorney declined was redistributed among the other 64 claimants and their offers were recalculated. By accepting offers, claimants sign settlement documents releasing the State of Indiana from future liability. That does not prevent claimants from pursuing separate legal actions against other private entities over the stage rigging collapse.

After offers were extended, three claimants identified conflicting medical billing data that had been previously submitted to claims manager JWF Specialty Company during the claim-filing period. The disputed claims were carefully reviewed, and the State and JWF agreed to resolve the disputes in favor of the claimants, meaning their offers were revised upward by a combined total of $33,027.31. Since by law the State’s cap per incident is a total $5 million and cannot exceed that, JWF Specialty Company graciously agreed to pick up the difference and pay the increased offers to the three claimants out of its own funds.

“JWF Specialty provided invaluable service to the State under extraordinarily difficult circumstances under an accelerated claims-review period. We appreciate their good corporate citizenship in resolving disputes in favor of the claimants in keeping with a victim-centered approach, and we thank them for their expertise on an extremely complicated claims-management process. There was nearly 100 percent participation from those claimants who were offered settlements, an indication we believe of how carefully the protocol was developed,” Zoeller said.

During the process of calculating settlement offers, the Attorney General’s Office participated in mediation with a group of approximately 30 attorneys and law firms representing many claimants and reached tentative accord on the protocol. Settlement offers are with the consent of the Governor’s Office.

“Members of the legal profession who met repeatedly with the State to reach consensus on a compensation program for their clients should be commended for helping bring this process to an expedited conclusion. And I’m enormously grateful to Kenneth Feinberg who donated his services at no charge to the State of Indiana or taxpayers. His wisdom from developing past victim compensation programs after other tragedies was indispensible to my office in helping us navigate through difficult questions. The work of the Attorney General’s Office does not end here and we will continue to diligently represent the State in legal matters involving the State Fair tragedy,” Zoeller said.

Now that the final list of accepted offers has been calculated, the State Auditor’s Office will begin the process of issuing payments by check or electronic funds transfer. The first group of checks is scheduled to be mailed Wednesday and the process should be complete by the end of the year. JWF Specialty Company will follow up with any claimants from whom any additional paperwork is needed.

Posted in Defective Products, Product Liability, Serious Personal Injury, Transportation, Work Related, Wrongful Death | No Comments »

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