May is National Bike Month.  Now is the time to reduce your carbon footprint by getting your bike out of the garage, cleaning it up and taking it for a ride.  Not only will this benefit the environment but it is great exercise that will help you lose weight and stay healthy.  Wouldn’t it be nice to pedal by a gas station knowing that this trip would not make the energy companies any wealthier!

The joys of bicycling are nearly endless, but we know all too well from our law practice that there are dangers that go along with pedaling a bicycle.  Bicyclists need to be alert for road hazards and careless drivers. By following some simple traffic safety rules you can enjoy a safe and healthy bike ride.  Remember the following for a safe bicycle trip:

1. The traffic regulations that apply to cars usually apply to bicycles - so obey the traffic rules like riding on the right with the flow of traffic and stopping at red lights and stop signs.

2. Ride single file.

3. Yield the right of way to pedestrians.

4. Wear a helmet - a bicycle helmet can prevent or mitigate a closed head injury and should always be worn.

5. Before you leave on your trip check that the wheels aren’t wobbly, that the gears shift properly and that the brakes are in good working order.

6. Make sure your tires are in good shape and properly inflated - bike tires left alone in a hot garage dry rot very quickly and can blow out at a most inopportune time.

7. Make sure the bike is the right size for the rider—balance is important!

8. Avoid riding your bike after dark, but if you must ride after dark use good quality head and tail lights as well as bright or reflective clothing.

9. Let your friends or family know that you are going on a bike trip and carry a cell phone, identification and some money with you in case of an emergency.

10. Give motorists a break by using proper hand signals to alert them that you are about to change course.

Even if you are new to riding a bike, if you follow these suggestions and practice a little before you go out into traffic, you too can enjoy a safe, healthy, and environmentally friendly trip to school, work, or just around your neighborhood!

Every day each one of us comes into contact with a countless variety of manufactured products - each potentially having the capacity to inflict serious injury if it is defective, poorly designed or manufactured improperly.  Daily we see news stories of toothpaste manufactured with lethal ingredients, colorful toys made with lead based paints and meat from diseased animals that has been introduced into the stream of commerce.  While these stories are reason enough to be concerned, we take comfort in the knowledge that most of the products that we come in contact with are safe.

The best protection we can have is to strive to be informed consumers.  We need to continue to demand that the government establish and enforce high standards for the protection of the consumer, and businesses need to continue to understand that there is a price to be paid anytime they put their company’s bottom line ahead of the safety of their customers. There are a number of Internet resources that can help inform the aware consumer.

Are you in the market for a new or used car?  Are you aware that automotive recalls have increase 30% in 2007 over the preceding year?  Ford lead the pack recalling nearly 6 million vehicles, the majority of which had defective cruise control switches that can cause fires even if the vehicle isn’t running.  Both Volkswagen and DaimlerChrysler recalled at least 1.4 million vehicles.  Before you complete your next car purchase you should visit www.SaferCar.gov the website maintained by the National Highway Safety Administration (NHTSA).  Here you can search for recall information, research a specific year make and model of a vehicle, you can register yourself to receive email recall notices, and get crash and rollover ratings.  Complaints may also be filed, which may lead to an investigation and future recalls that may protect others from a defective condition in a vehicle.

The Federal Government maintains another web site that contains valuable information on a much wider variety of products that may cause harm to the user.  At www.Recalls.gov you can investigate not only motor vehicles but all types of consumer products, boats, food, medicines, cosmetics and environmental products. This site is supported by the Food and Drug Administration (FDA), the United States Department of Agriculture (USDA) and the United States Environmental Protection agency (EPA).  If you or someone you know has ever been injured by a defective product, please call the product liability lawyers at the Kane Law Firm to discuss the possibility of a claim.  It would be an honor to represent you.

America is growing older and Americans are slowing down. Recent research has disclosed that these two growing trends within our population are leading to an alarming increase in deaths and injuries of pedestrians at crosswalks.  An effort is being made to make street crossings safer for our senior citizens and even children who need a little extra time to safely cross a street.  The Insurance Institute for Highway Safety tells us that over 6 pedestrians an hour are injured at our crosswalks.  On average, 12 people are killed trying to cross the street each day.  This is a national tragedy.

 The Federal Highway Safety Administration is poised to recommend that states increase by nearly 5% the amount of time they allow for people to cross a street.  Police are cracking down on motorists who violate traffic laws at intersections.  Orange County Florida, like many other local governments, is beginning to install cameras at intersections to identify those motorists who run red lights. Other areas are experimenting with flashing lights to alert motorists to the presence of pedestrians or countdown-timer signals to let the pedestrian know how much time is available to cross. Fault may be shared by the pedestrians disobeying traffic laws, which Florida Statute 316.130 requires them to honor, failing to be alert for their own safety, or just poor judgment.  Motorists are also responsible for many of the accidents due to excessive speed, failing to yield, and making careless turns.  In the past roads were designed with the cars and motorists in mind.  Now that high fuel costs and the need for exercise has more of us out walking about, greater care must be given when designing roads for the pedestrians who will travel on them as well.

We can all contribute to safety on our streets by remembering the duties placed on us by Florida law.  For example Florida State 316.123 deals with the duties of a motorist approaching a stop or yield intersection and provides “…if a driver is involved in a collision with a pedestrian in a crosswalk …after driving past a yield sign without stopping, the collision shall be deemed prima facia evidence of the driver’s failure to yield the right of way.”  Florida Statute 316.125 requires a motorist entering highway from a private driveway or alley to stop before the sidewalk and yield to all pedestrians so close as to present a hazard.

 If we all use just a little more care in school zones, if we slow just a little before entering an intersection, if we pay just a little more attention to our driving, if we turn our cell phones off we can make a difference and bring this national epidemic of pedestrian / motor vehicle collisions under control.  We at the Kane Law Firm want to see all of us get home to our families and loved ones safe and sound!

The case of Riegel v. Medtronic was recently in the U S Supreme Court. In a blow to consumer rights, the court decided that the Riegel’s claims were preempted under the Medical Device Act. Black’s Law Dictionary (7^th Ed.) defines preemption as “The principle (derived from the Supremacy Clause) that a federal law can supersede or supplant any inconsistent state law or regulation.”  Under the principals of Federal Preemption, the court limited consumer rights by holding negligent medical device manufacturers accountable for injuries caused by their products, which is a giant step backwards from making devices safer for the consumer.

In this case, Charles Riegel developed a blocked artery in his heart and underwent emergency surgery.  He was treated with a balloon catheter made by Medtronic which subsequently ruptured due to over-inflation.  The Supreme Court held that state law claims regarding medical devices are preempted under the Medical Device Amendments where the device manufacturer complied with federal regulations. While the court was careful to limit the holding in its opinion to just medical devices, similar issues are coming before the court later this year on two prescription drug cases which may further limit consumer rights.

The Supreme Court’s decision prohibits consumers injured by a medical device from holding a negligent device manufacturer accountable if the product met the FDA’s minimum requirements. It is possible a manufacturer of an FDA-approved device may learn of a potential problem after a device is placed in the stream of commerce without notifying health officials and consumers and still be immune from liability. The decision eliminates accountability in the civil justice system for medical device manufacturers. The producers of these devices will have little or no incentive to improve devices beyond the FDA’s minimal requirements or to conduct crucial post-market testing to determine the health and safety implications of their devices. 

The ultimate consequence of the decision will make medical devices less safe for consumers. Without tort suits triggering disclosure of hazard information, consumers will be less likely to obtain crucial safety information before it is too late. The American civil justice system has long proved itself as a powerful force for the improvement of the safety of the products offered for sale to the public by holding negligent manufacturers liable, whether it is for dangerously flammable children’s pajamas or exploding fuel tanks in our automobiles. Greater care is given to the design and manufacture of products when the producers of these goods know that they may be held to pay reasonable damages for the harm their negligence creates. We at the Kane Law Firm believe that the safety of the people who buy products is more important than the manufacturer’s profit and that safety should never be sacrificed to improve the bottom line.

Governor Crist ran for election on a platform that included promises to bring homeowners insurance rates down.  In spite of legislative action designed to lower rates by having the state assume many of the financial risks of catastrophic loses the citizens of Florida have not seen the expected lowering of rates - in fact in many cases rates have gone up!

Insurance Commissioner, Kevin McCarty, is investigating this issue and has issued subpoenas to Allstate requiring them to disclose information regarding their reinsurance program and the way it uses a catastrophe risk-modeling program to help set rates.  In the Insurance Commissioner’s opinion, Allstate has blatantly disregarded his subpoena.  So, the Insurance Commissioner has cancelled a two day hearing which was to have investigated these issues, in spite of Allstate’s announcement just prior to the scheduled hearing that it was withdrawing its request for another rate increase.

Allstate is no stranger to controversy.  In Missouri, a judge has fined Allstate $25,000.00 a day for its failure to provide subpoena responses.  The fine now exceeds $2 Million.  The Missouri case caused Mr. McCarty to conclude that mere financial penalties would not be enough to get Allstate to comply with his subpoena.  The drastic action of suspending Allstate’s ability to write new auto insurance policies is designed to promote a more forthcoming attitude on the part of Allstate.  Current policyholders insured by any of the three targeted Allstate companies will not be affected.

Allstate, which historically has been one of Florida largest auto insurers has been steadily reducing its exposure to homeowners claims in hurricane prone Florida.  In the last four years it has reduced the number of homeowners’ policy it carries by one half.  Allstate has not written new policies for a number of years and has refused to renew thousands of other policies.  It now has about 400,000 homeowner policyholders compared to 800,000 policies just four years ago.

We at the Kane Law Firm support this strong pro-consumer action on the part of Insurance Commissioner McCarty.  While no one would deny the right of any insurance company to make a fair profit, it is certainly the role of the Insurance Commissioner’s office to ensure that the profits are not excessive and that consumers have access to affordable coverage so that more and more of our citizens can realize the American Dream of home ownership.  No citizen or company should ever consider itself above the law, nor should anyone presume to ignore a lawful subpoena.  This investigation will continue and other insurers may receive subpoenas.  Let us hope that each company will prove to be a good corporate citizen and cooperate with the investigation; but, should any of them fail or falter in their obligation, then let us demand that the Insurance Commissioner’s office to continue its investigation to the end.

If you are like most people when your homeowner’s insurance renewal comes - with its ever-increasing premium and its mind-numbing fine print contract - you just grit your teeth, pay the bill and file away the unread policy.  This could be a big mistake.  Contained within that policy is usually a co-insurance clause that can present major dangers for the unaware.

Co-insurance is a common, yet frequently misunderstood, term in most homeowner’s and other property insurance policies.  It is separate from a deductible, and different from the co-pay that you might find in a medical policy.  In theory, your insurance company gives you a reduced premium in exchange for which you agree to guarantee to carry insurance up to 80% or 90% of the value of your property and its contents.  In an era of rapidly changing property values, you may be in for a terrible surprise if you ever experience a covered loss - your insurer may only be willing to pay a portion of that covered loss!

The formula commonly used is to create a fraction as follow:  (Insurance Actually Carried / Insurance That Should have been Carried) x Loss = Payment

Let us consider the case of Sam and Maria Jones.  Sam and Maria bought their dream home in the year 2000 and paid $200,000 for it.  They insured the home with an 80% co-insurance policy for $160,000.  In September of that year they were hit by a hurricane and sustained $20,000 in damages in excess of their deductible.  Their insurance company applies the co-insurance formula and there is no problem because they maintained coverage for 80% of the value of the structure:

[$160,000 (Insurance Actually Carried) / $160,000 (80% of $200,000 - Insurance That Should Have Been Carried)] x $20,000 (Loss)  =  $20,000 (Payment)

The problem will occur if we change the facts.  Sam and Maria happily live in their dream home for seven years, but never change the amount of coverage on the structure, so that in 2007 they still insure the house for $160,000.  While that met the 80% co-insurance requirement in the year 2000, it no longer does so in the year 2007 because their house is now worth $400,000.  When a hurricane hits and Sam and Maria sustain $20,000 worth of damages in excess of their deductible, the insurance company will not pay them their full damages since the home should have been insured for 80% of $400,000, which equals $320,000.  Take a look at how this affects their recovery from their insurance company: 

[$160,000 (Insurance Actually Carried) / $320,000 (80% of $400,000—Insurance That Should Have Been Carried)] x $20,000 (Loss) = $10,000 (Payment)

The difference in what the insurance company is willing to pay in these two examples can be devastating to the ordinary family and amount to a “hidden” deductible that most of us just can’t afford.  If you experience a loss like this, you should consult an attorney to assist you in dealing with the insurance company.

If you experience a loss to your property and your insurer is trying to reduce your recovery by applying an unfair co-insurance value call your attorney for help!

Happy New Year from the Kane Law Firm, P.A.

At this joyous time of the year we are ever mindful that our past and future success is dependent on the help and support of our many friends and clients. To all of you we wish to extend our thanks and our best wishes for a wonderful Christmas and a great New Year!

Despite new technologies available for marketing and advertising, the best source of our new business is word of mouth. We are grateful that so many of our clients and friends feel confident in recommending the Kane Law Firm to their family and friends.

Unfortunately, when many people need a good lawyer they don’t know where to turn. If you or someone you know has been injured and needs legal help, call us. It would be our honor to try to assist.

The primary symptoms of fibromyalgia include widespread musculoskeletal pain, severe fatigue, and disturbed sleep. Fibromyalgia means pain in the muscles, ligaments, and tendons - the soft fibrous tissues in the body. Most patients with fibromyalgia say that they ache all over. Their muscles may feel like they were pulled or overworked. Sometimes fibromyalgia symptoms include muscle twitches and burning sensations. More women than men are afflicted with fibromyalgia, and it shows up in people of all ages.  This is a devastating syndrome that can be brought on by trauma.  The Florida Supreme Court in a recent ruling has cleared many of the roadblocks that insurance companies have utilized to prevent accident victims from recovering damages when afflicted with this syndrome.  The Court overruled the objections of the insurance company and found that there was sufficient scientific basis for a doctor to be able to make the diagnosis of fibromylgia.

Two important victories were scored in the fight to protect the justice rights of all Floridians.  Those decisions have far reaching implications for federal preemption and vicarious liability, the U.S. District Court for the Southern District of Florida declared the federal rental car immunity statute, 49 U.S.C. §30106 (commonly known as the Graves Amendment) unconstitutional. That 2005 provision, which was slipped into a 900-page transportation appropriations bill, gave immunity to automobile rental agencies for harm caused by their vehicles.

The landmark decisions were handed down by United States District Judge K. Michael Moore. Judge Moore found that the Graves Amendment directly indicates an intention to preempt state law and exceeds Congress’ authority under the Commerce Clause. The decisions give rental car companies a powerful incentive to ensure that their customers are adequately insured, helping to protect victims of car accidents with rented or leased vehicles. They could also have widespread repercussions regarding the federal government’s preemption powers.