If you're hurt on the job tell your employer immediately

When you are hurt on the job in Pittsburgh, Pennsylvania it is important that you notify you employer of the injury immediately, even if you have not missed work.

It is critical that you tell your employer that you were hurt and that it was at or caused by your job. If for some reason you cannot give notice yourself, make sure that you have have someone, on your behalf, notify your employer about what happened.

The reasons for prompt and definite notice of a work-related injury is are numerous:

1. The law requires that you give notice of an injury to your employer within 120 days of the date you were injured or 120 days of the date you discovered your injury. If you fail to do this, you lose your right to recover benefits.

2. The law holds that if you give notice within 21 days of the date of injury, your workers' compensation benefits are payable from the first day of your disability. If you give notice after 21 days but before 120 days from the injury then your compensation is payable from the date you gave notice.

3. Prompt notice gives your injury credibility in the eyes of your employer. If you wait an extended period of time before saying anything about your injury, your employer is going to be more skeptical about the relatedness of the injury. As a result, there is a higher risk in such a situation that the employer will deny benefits and make you file a claim petition.

If you are hurt at work, don't be a hero. Notify your employer immediately. If you don't, the road to recovery only becomes that much tougher.

Written Contracts and the Statute of Frauds

A good Pittsburgh Pennsylvania contract lawyer should advise you that there are exceptions to the rule that verbal contracts are always enforceable. It is true that oral agreements are generally enforceable, but there are certain instances where a contract must be written in order to be valid. If you attempt to enforce a verbal contract that should have been written down the defendants will argue the Statute of Frauds, i.e. the requirement that an agreement be committed to writing.

In Pennsylvania, the following types of agreements must be in writing in order to be enforceable:

1. A contract for the sale of land;
2. A contract for the sale of goods having a price of $500 or more;
3. A contract to answer for the debt of another (guarantee or surety agreements); or
4. A promise of an estate executor to pay the estate's debts out of his or her own pocket.

Furthermore, PA requires that the writing contain the following essential terms:

1. Identity of the parties
2. Subject matter of the contract
3. Conditions of the promise made; and
4. The signature, initials, or letterhead of the party against whom enforcement is sought.

There are exceptions to the Statute of Frauds that I will discuss in a future post. The bottom line is that it is always best to put an agreement in writing. But if you don't you still have a good chance of enforcing the contract.

Oral contracts enforced just like written ones

In Pittsburgh, PA, a contract does not have to be in writing for it to be effective. The key determination is whether the intention to contract between the parties was clear and understood by both sides.

But, the oral agreement must be proven by the party asserting it. You have to prove that the verbal contract was clear and precise. In fact, to establish an oral contract in Pennsylvania, you have to establish:

1. that both parties demonstrated an intent to be bound by the terms of the agreement;
2. That the terms of the oral agreement were sufficiently definite to be specifically enforced; and
3. That both sides received consideration (i.e. you can't enforce a promise to gift- there has to be a give and take- read more about this concept here).

If you believe you entered into an agreement with someone but didn't write down the terms, remember- the determination of the existence of the contract is considered in light of the surrounding circumstances as to whether it was logical for a contract to have been made, including its terms.

Insurance claims- an adversarial process?

Sadly the insurance industry has made claims processing an adversarial process. We pay money (for car insurance, we are forced to pay this money) to insurance companies to help protect us from the aftermath of harms we may suffer. This is no different than any other bargain for goods. I go tot he grocery store and give the cashier money in return for food. Notice, when you go to the grocery store you don't pay money only to have the cashier question you on why you should qualify to get the food. Absurd right? But that is exactly what the insurance industry does in so many circumstances.

The insurance industry argues that too many people are filing frivolous lawsuits. Of course there are frivolous law suits filed and that is a shame. But the vast majority of lawsuits filed are out of necessity because the insurance industry has refused to pay out on valid claims.

Few people realize the inherent problem that has developed. We are so indoctrinated with the "good" of the insurance industry we never question their actions and motivations. The reason most people are unaware of this problem is that most of us rarely have to deal with insurance. We have a fender bender once or twice in a lifetime, etc. But lawyers deal with this unfortunate situation on a regular basis. We witness first hand people being denied benefits for perfectly valid claims. But I digress.

This clever blog post from NYC trial attorney Jason Paris, Esq., demonstrates what has happened. There are problems on both side of the fence. But by no means is the insurance industry free of blame. Grumble grumble...

Punitive Damages in Pennsylvania

Punitive damages can be sought in almost any lawsuit filed in Pennsylvania, IF yuo can demonstrate that the Defendant's action were so outrageous as to warrant punishment. Because plaintiffs have been injured in some way by the defendant their first thought often times is "we deserve punitive damages!" But because punitive damages are such a harsh punishment, the standard in PA for establishing such claims is difficult to meet.

Pennsylvania courts have expressly adopted the principle that punitive damages are damages, other than compensatory or nominal, awarded against a person to punish them for outrageous conduct and to deter such person and others like them from similar conduct in the future. "Punitive damages" are to serve as a penalty to the defendant and are not for the purpose of providing additional compensation to the plaintiff. PA law presumes that a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages may only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.

More specifically, punitive damages can be awarded only when the defendant deliberately proceeds to act or fails to act in conscious disregard of, or indifference to, a high degree of risk of physical harm to another of which the actor knows or has reason to know. The required state of mind is more aptly described as an indifference to a known risk, rather than failure to appreciate the degree of risk from a known danger. Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996). To warrant the imposition of a penalty, the act must have been committed with a view to oppress; the conduct must involve some element of outrage similar to that usually found in a crime. Such conduct does not exist unless the actor knows, or must have been aware of the specific high degree of risk. Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike). Reckless indifference to the interests of others' means that the actor has intentionally done an act of an unreasonable character, in disregard to a risk known to him or so obvious that he must be taken to have been more aware of it, and so great as to make it highly probable that harm would follow.

Additionally, it is important to note that a request for punitive damages does not constitute a cause of action in and of itself. Therefore, if there are no direct claims that are viable, the claim for punitive damages must fail. When punitive damages are claimed in a civil action, the requisite factual basis must appear in the complaint and the pleading requirements are strict. If you don't plead facts sufficient to establish claims of punitive damages, you will be barred from seeking such damages at trial.

PA medical malpractice

The number of medical malpractice cases filed in PA has fallen to a record low.

The Administrative Office of Pennsylvania Courts announced the release of state court system data on medical malpractice case filings and verdicts for 2009 that show a further decline in the number of lawsuits filed against health care providers statewide for a fifth consecutive year. You can read the complete results here.

In 2009, there were 1,533 filings, representing a 43.9 percent decline from the “base years” 2000-2002. In Philadelphia, PA's district with the largest caseload, the decline has been by nearly 60 percent during the same period.

The base years are the period just prior to two significant rule changes made by the Supreme Court. The first change, which I discussed previously here, required attorneys to obtain from a medical professional a certificate of merit that establishes that the medical procedures in a case fall outside acceptable standards. A second change required medical malpractice actions to be brought only in the county where the cause of action takes place.

These results run counter to PA's ranking in the Pacific Research Institute's Tort Liability Index I discussed here.

PA's ranking in Tort Climate study

The Pacific Research Institute has released its 2010 U.S. Tort Liability Index. This study ranks each states' "tort climate."

According to the press release, the "best" tort climates are (in order) Alaska, Hawaii, North Carolina, South Dakota, North Dakota, Maine, Idaho, Virginia, Wisconsin and Iowa. The "worst" tort climates are (in order) New Jersey, New York, Florida, Illinois, Pennsylvania, Missouri, Montana, Michigan, Connecticut, and California.

This study was performed by hard-core supporters of tort reform. Be that as it may, it is still an interesting study. Obviously PA is weighted toward the bottom of the list as a result of the higher verdicts that arise out of Philadelphia.