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Saturday, October 01, 2005
Law- Homeowner's insurance: "Use it and lose it."
"The Peace of Mind of Home Insurance, Unless You Use It" is the headline to a story on the front-page of today's NY Times business section. Some quotes:
THERE is a saying among consumer advocates regarding homeowner's insurance: "Use it and lose it."It is not a phrase that insurance companies are particularly fond of. But it sums up how all too many people feel about their homeowner's insurance: if you decide to make a claim, you are in danger of being dropped. * * *
A number of factors have combined to create the current atmosphere. * * *
Then there was the mold panic, which was a turning point in the insurance industry. It made headlines in 2001 when a jury awarded $32 million (later reduced to $4 million on appeal) to a Texas family - aptly from Dripping Springs - that sued its insurance company. The family asserted that the insurance company delayed making payments to repair a plumbing leak, which led to mold infestation. That, in turn, caused respiratory and neurological damage, they said, and made their 22-room house uninhabitable.
Mold claims started pouring in - one New Yorker sued for $400 million - shaking up the insurance industry and, although the Baigels could not have known this, making insurers particularly leery of water damage claims. * * *
Consumer advocates say that another factor that led to the "use it and lose it" mentality is the greater use of databases that, much like a credit report, list a customer's claims history and how many claims have been made for a property.
These databases are known as CLUE (Comprehensive Loss Underwriting Exchange) and A-PLUS (Automated Property Loss Underwriting System). Insurance companies use the databases all the time; consumer advocates say homeowners can - and should - obtain their reports to make sure their claims record is accurate.
Simply inquiring about filing a claim can be noted on your record. The Insurance Information Institute notes that "generally questions about coverage are not recorded in the database" but that if a policyholder reports damage, even if no payment is made - for whatever reason - it will show up in the file.
Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to General Law Related
Ind. Courts - Pfaff responds to judicial commission
The Elkhart Truth reports today:
Judge Benjamin Pfaff has responded to a judicial commission's recommendation to the Indiana Supreme Court that he be removed from office, his attorney said Friday.See also the 9/10/05 ILB entry, re Pfaff's suspension with pay.Pfaff's Elkhart attorney, Steve Bowers, said the written response had been sent by certified mail, meeting the deadline for the filing.
Bowers declined to comment on the judge's response to the Indiana Commission on Judicial Qualifications' recommendation that Pfaff be removed from the Superior Court 1 bench because of his part in a gun-toting incident nearly two years ago. * * *
Meg Babcock of the commission that made the recommendation to the High Court said Pfaff's response wasn't on file as of late afternoon Friday.
The commission could take up to 20 days to address Pfaff's response.
By late October, all of the information will be in the hands of the court, which can take as long as it likes to make a final ruling on the case.
Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Indiana Courts
Ind. Courts - Estate of former Johnson County juvenile court magistrate sued
The Shelbyville News is reporting today:
The estate of Craig Lawson, a 1986 graduate of Shelbyville High School and former Johnson County juvenile court magistrate, has been named in a lawsuit filed by Robert and Darlene Garvey of Greenwood in Johnson County Superior Court.Lawson, 36, died of an apparent suicide on Jan. 27 with a gunshot wound to the head, and the Garveys have filed a claim against his estate.
The suit, filed on Sept. 16, alleges that Lawson was representing the Garveys in a lawsuit against Terrell Presley as the result of an automobile wreck in October 1997. When Lawson accepted his juvenile court judge position in the fall of 1999, he was barred from practicing law, but he did not inform the Garveys.
Instead, Lawson is accused of entering into an agreement with Johnson County attorney J. Andrew Woods in which Woods was to act as the Garveys’ attorney and remit the proceeds of any settlement of the claim to Lawson for disposition. Robert Garvey, however, says that he was never informed of the agreement and was told by Lawson that he would continue to represent him.
In December 1999, attorney Woods accepted a settlement of the Garveys’ injury claim from Presley’s insurance company, which agreed to pay $50,000. The check was sent to Woods along with a release to be signed by Robert Garvey.
The lawsuit claims that Woods endorsed the back of the settlement check himself and gave the check to Lawson. Lawson is then said to have forged Robert Garvey’s signature on the check and deposited it into his own checking account. Lawson then allegedly sent a release to Presley’s insurance company and his lawyer with a forged signature.
From the fall of 1999 to the end of 2004, the lawsuit claims that Lawson concealed the wrongdoing by continuing to advise the Garveys verbally and in writing that he was still their lawyer, that the case was still pending in court and he was close to negotiating a settlement of the claim.
The Garveys didn’t learn until March 2005 that their lawsuit in the automobile accident had been settled.
Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Indiana Courts
Ind. Gov't. - "IDEM claim of quickly cleared cases is challenged [Updated]
"IDEM claim of quickly cleared cases is challenged" is the headline to this story, by Niki Kelly, in today's Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS – A recent public records dispute casts doubt on the Indiana Department of Environmental Management’s claim to have cleared a backlog of old enforcement cases.I've assembled most of the documents referenced in the story:The timeline of the issue goes like this:
• In June, the agency put out a statement with this opening paragraph – “The Indiana Department of Environmental Management has unclogged a bottleneck of enforcement cases that have been unresolved for two or more years. Many of the previously unresolved cases inherited by the new Daniels Administration were settled with an amicable agreement between IDEM and the responsible parties.” Later in the statement, 90 resolved cases were mentioned.
• The next day, an Associated Press story in the Huntington Herald-Press quoted IDEM’s assistant commissioner as saying the agency had resolved about 90 enforcement cases dating back at least two years.
• In July, The Journal Gazette quoted IDEM Commissioner Thomas Easterly also saying 90 cases more than two years old had been cleared.
• Also in July, Easterly gave a PowerPoint presentation to lawmakers on the Environmental Quality Service Council that included an edict to resolve “old” cases. The next point in the slide said 90 had been resolved with 20 more settlements pending.
The problem is that a list provided by IDEM of the cases shows that most of the ones resolved through agreement or dismissal were from this year or 2004 – not even close to two years old.
“That’s not a backlog,” said Thomas Neltner, the citizen who originally sought the records from IDEM on behalf of the Hoosier chapter of the Sierra Club.
The initial request to see the settlements was made June 13. The Sierra Club specifically wanted to see which companies were allowed to pay lower fines than originally anticipated for environmental violations.
Neltner’s battle with IDEM went on for months until he filed a formal complaint with the Indiana Office of the Public Access Counselor for the remaining documents in August. One item he still specifically needed was a list of all the companies involved.
Public Access Counselor Karen Davis notes that Neltner was unsure whether such a list even existed but IDEM had not responded either way.
“To my knowledge, there would be no exemption that would apply to such a list; if IDEM has compiled a list of the 90 settled cases, it should produce it,” Davis wrote.
With respect to remaining documents Neltner had requested, she expressed “doubt that the agency has met its burden to show that it has produced the records within a reasonable time. * * *
Shortly after that opinion was issued Sept. 22, IDEM created a list of the cases in question and gave it to Neltner and The Journal Gazette.
The list shows 80 cases settled, 18 dismissed and 10 in which [commissioner's] orders were issued because no resolution could be found.
Of the 98 resolved either through settlement or dismissal, 50 are from 2005 and 2004. Forty-eight were from 2003 or before – and even some of those could technically fall within the two years depending on what month they were filed.
IDEM spokeswoman Amy Hartsock said there was never any intention to mislead the public. She said the agency had embarked on two simultaneous paths – identifying old, problem cases to resolve while also reacting more quickly to new cases – that got muddled together.
(1.) The IDEM press release from June 6, 2005.
(2.) An AP writeup headlined "State unclogging environmental enforcement logjam", by Rick Callan, that appeared in the June 7, 2005 Louisville Courier Journal. Some quotes:
Indiana has made quick progress tackling a years-old logjam of enforcement cases against companies accused of violating air, water and solid waste regulations, a state environmental official said yesterday.(3.) The agreed order in the Indiana Corrugated case. Notably, the notice of violation (NOV) in this case was dated 9/15/03. The settlement agreement is dated 5/17/05. According to para. 6 of the AO:Since March, the Indiana Department of Environmental Management has resolved about 90 enforcement cases dating back at least two years, said Matthew T. Klein, assistant commissioner of the department's Office of Compliance and Enforcement.
And last week the agency warned 10 other companies to correct problems or face possible fines.
Klein said the successes show that the agency's aggressive new approach to handling cases is working.
Gov. Mitch Daniels and IDEM Commissioner Thomas Easterly have vowed to eliminate the backlog of more than 220 environmental enforcement cases that had been unresolved for at least a year and a half when Daniels took office.
"We all need to move on and get these things resolved. Not only do the companies want things resolved, IDEM does, too," Klein said. "I'm starting with the oldest cases, and I'm working my way forward."
In March, Klein's office wrote companies, warning them that if their cases were not resolved by June 1 they could face a Commissioner's Order. Unless corrective action is taken, those companies will go before an administrative law judge who could fine them.
Klein said about 90 of those cases -- all of them at least two years old -- have been resolved, with companies either agreeing to pay penalties, change their industrial operations or take other steps to comply. The department is close to settling with about 20 other companies. * * *
Among the 90 cases resolved this spring is a long-running enforcement action against Indiana Corrugated Inc., a maker of cardboard boxes in the Huntington County town of Warren, in northwestern Indiana.
Donn Wray, an Indianapolis attorney who represents Indiana Corrugated, said company officials were frustrated by their dealings with IDEM since the agency investigated a spill of a soy-based, biodegradable ink at the plant in May 2002.
Earlier this spring, IDEM and the company signed off on an agreement under which the company would pay a $28,000 fine and the agency would drop its previous concerns about solid-waste violations that the company maintained were baseless.
"We proposed a possible settlement to the previous administration, and we heard nothing from them for months. The new administration comes in and we resolved this in about three weeks," Wray said.
On April 10, 1999, the Huntington County Geographic Information Service (“GIS”) obtained aerial photographs of the Site, which showed the ink leaving the south side of the building, pooling and migrating to a ditch, which runs to a swale, and is then carried off-site to a wooded area at the northwest corner of the property, which runs to an unnamed ditch to Salamonie River, waters of the state. On May 7, 2002, representatives of IDEM conducted a spill investigation of a discharge of ink-laden wastewater from the Site to the same wooded area noted by Huntington County GIS on April 10, 1999, near the Site and into an unnamed ditch, which runs into Salamonie River, without a valid NPDES permit. Also during a follow-up inspection by representatives of IDEM on December 4, 2002, it was observed that an area of approximately four feet by six feet of pooled black water and ink-laden soil ran downstream of the pooled water on the south side of the building at the Site. The Respondent failed to obtain a valid NPDES permit prior to discharging into the waters of the state, in violation of 327 IAC 5-2-2.Note that although the initial inspection was 5/7/02, as mentioned in both Mr. Wray's statement and the IDEM AO, the NOV in this case was not issued until 9/15/03.
(4.) The Public Access Counselor's opinion, dated Sept. 22, 2005. A quote:
The APRA does not prescribe any time in which an agency must produce its records. This office has stated that an agency must produce responsive records within a reasonable time, under all the facts and circumstances. From the gist of your complaint, and from your letters to IDEM dated September 12 and September 13, I conclude that you believe that IDEM is withholding a list of the 90 settled cases referred to in IDEM’s press release. Not only do those letters specifically request the list or state that the list is still outstanding, but the statement in your complaint that IDEM has not provided “any documents related to the list of 90 resolved cases...” seems fair only when interpreted as a request for a list, since you admit throughout your timeline that you have received many pages of records relating to the settled cases.(5.) I also hope to obtain a copy of the list mentioned in Kelly's story: "Shortly after that opinion was issued Sept. 22, IDEM created a list of the cases in question and gave it to Neltner and The Journal Gazette."Hence, the central issue is whether IDEM has been forthcoming with the list of 90 cases, as well as some of the draft and final agreed orders relating to those cases and yet to be produced. Your request for the list no doubt would help you to resolve the question of how IDEM arrived at the figure of 90 resolved cases, since the records you have received thus far, in your estimation, do not reveal 90 resolved cases.
[Updated 10/2/05] The Indianapolis Star today carries an AP version of the same story. As does the South Bend Tribune, in a very abbreviated report.
Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Environment | Indiana Government
Ind. Courts - "Federal court clerk bid fond farewell"
"Federal court clerk bid fond farewell" is the headline to a story by Maureen Hayden in today's Evansville Courier& Press. It begins:
Not many people get to enjoy a retirement party with a guest list that includes burly drug agents, federal judges, a 2-month-old baby and a 94-year-old great-great grandmother. But given the cast of characters that Frances Gates Deason encountered in her 17 years as a federal courtroom deputy clerk and court clerk, it seemed entirely fitting.In her years in the U.S. District Court in Evansville, Deason gained a reputation for a kind of blind-justice approach to those she encountered, from judges to lawyers to criminal defendants to just plain folk off the street in search of a legal remedy to their woes. They were all treated equally under her law of respect, even when they didn't quite deserve it, said co-workers who gathered Friday at the Winfield K. Denton Federal Building to say farewell. "Lawyers and litigants are always nice to judges," said U.S. Magistrate William Hussmann. "They're afraid to vent their frustrations to us, so they vent instead at the clerks. But Frances could handle any of it."
Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Indiana Courts
Environment - Some stories today
Brownfields. "Wabash gets grant to clean brownfield" is the headline to this story today in the Fort Wayne Journal Gazette. A quote:
Mayor Robert Vanlandingham announced Friday the city will receive up to $250,000 to remediate the Swinger Shell gas station site.Wild animals. "Breeder gives away most animals: 2 tigers, mountain lion allowed on property" is the headline to this AP story. A quote:The Swinger site was one of four sites selected statewide by the Indiana Finance Authority’s Petroleum Reserve Grant Initiative, according to a written statement from the city of Wabash.
As part of the new agreement with the state, Hill withdrew his court challenge to the removal of the animals and will give away most of them, the DNR said Friday.Unfortunately, this may not bode that well for the animals. I happened to ask a game warden in upstate NY last week whether they had deer farms like we have in Indiana. Not only that, he said, they also had "hunting" resorts stocked with former (old or ill) zoo and circus animals.
Forests. Marty Lucas, lawyer and conservationist from North Judson, had a thoughtful piece on Indiana's state forest and wildlife policies in his blog, BigEastern, yesterday (9/30). I recommend it - access Marty's blog here.
Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to Environment
Law - Some "Saturday-type" stories
Not quite in the league of a story I passed on several weeks ago titled "Town gives hydrants new coat of paint," but here are some "Saturday-type" stories from today's papers:
"Home's new driveway in danger" is the title of this story today in the Evansville Courier& Press where a homeowner was:
notified by the city engineer's office that the sidewalk crossing his driveway was too steep to meet the federal Americans With Disabilities Act."Stadium pat-downs nixed" is the headline to this story in the Cincinnati Enquirer. Some quotes:"What really fries my cookies," said Schultze, of 521 Colonial Ave., is that he went to various agencies including Area Plan and Building commissions offices and was careful to ask along the way if there were other permits he needed before work began. No one told him he needed a driveway permit - seeking one, presumably, would have pointed up the slope regulations.
[After an inspection] the issue will be taken up at next Thursday's meeting. No one denied the requirement wasn't pointed out to Schultze, but President Jack McNeely, member Anthony Brooks and Winternheimer said Schultze's concrete contractor should have known about it. Winternheimer also promised to suggest improvements in communication to make sure future applicants are informed of all permit requirements.
Fans entering Paul Brown Stadium on Sunday will not be subject to hand searches, after another dust-up between the Cincinnati Bengals and Hamilton County officials.Hamilton County Prosecutor Joe Deters said the activity - which was to be conducted by a private security firm but paid for with county money - amounted to illegal search and seizure. "It could potentially be construed as state action because there is no reasonable cause," he said. "We had the duty to protect the county." * * *
Deters planned to ask a judge Friday to halt the pat-downs until the issue could be resolved, but before that could happen, Bengals attorneys agreed no searches would be done this week.
NFL spokesman Greg Aiello says that, as far as he knows, Cincinnati will be the only team this weekend not following the new rule. The Bengals are one of 14 teams hosting a game this weekend.
Posted by Marcia Oddi on Saturday, October 01, 2005
Posted to General Law Related