Randy Barnhart

A Truth to Live By

Recently, an appellate court reiterated a fundamental truth which should govern all lawyers. “A lawyer’s reputation is one of his[/her] most important professional assets.” The court highlighted the importance of that truth with the following literary footnote:

Indeed, there is more than a kernel of truth in Iago’s pronouncement in Othello:

“Good name in man and woman . . .,
Is the immediate jewel of their souls:
Who steals my purse steals . . . nothing;. . .
But he that filches from me my good name
Robs me of that which enriches him not
And makes me poor indeed.”

William Shakespeare, Othello, Act III, Scene II

15-Passenger Vans: Decades of Warnings and Fatal Crashes - Part 1

This series of posts is adapted from my article, of the same title above, which appeared in the December/January 2011 edition of Trial Talk, a publication of the Colorado Trial Lawyers Association.

INTRODUCTION

Fifteen passenger vans debuted in 1972 when Ford Motor Company transformed what it built as a cargo van into a passenger vehicle by adding five rows of seats. {1} Today, according to 2008 registrations, there are over 500,000 15-passenger vans on the roads.  {2} 

For years the transportation of choice for church groups, schools and athletic organizations, 15-passenger vans are unregulated, deemed to be commercial buses, and thus subject to few of the safety standards and protections of passenger cars or those that apply specifically to school buses.

Many tragic example of the dangers of the vehicles have been reported. Numerous lawsuits have been filed around the country. Due to their carrying capacity, a single rollover can kill or injure many people, including children and young adults. Seat belt use in 15-passenger vans is reduced by their unusual location and geometry. The problems are acute in the second, third and fourth row of seats. Some models have only lap belts in certain positions.

Next - Part 2 - Government Action?

See my micro-blog, focused on the danger of defective 15-passenger vans.

Consumer Protection Act - Opposing Summary Judgment - Part 2

The intent and public policy of the Colorado Consumer Protection Act  should also be borne in mind. “The CCPA was enacted for this very purpose, to protect vulnerable consumers and the consuming public as a whole.” Crowe v. Tull, 126 P.3d 196, 209 (Colo. 2006). Moreover, the “availability of ‘other statutory or common law causes of action based on the same set of facts does not affect the plaintiff's right to assert a claim under the CCPA.’” Crowe, 126 P.3d at 210. “The purpose of the CCPA is to provide ‘consumers who are in a position of relative bargaining weakness with protection against a range of deceptive trade practices.’” Curragh Queensland Min. Ltd. v. Dresser Indus., Inc., 55 P.3d 235, 240 (Colo. App. 2002).

One way to show that your CCPA allegations are sufficiently stated with particularity is to compare them with allegations which the Colorado court of appeals has already found to be sufficient. In State ex rel. Suthers v. Mandatory Poster Agency, Inc., 09CA0253, 2009 WL 4981891 (Colo. Ct. App. Dec. 24, 2009), cert. dismissed (Mar. 10, 2010), the court held that the CCPA allegations in the complaint satisfied both the statutory elements of the CCPA and the procedural requirements of Rule 9. While your claims under the CCPA may differ, see if there is a correspondence to the sufficient allegations in Mandatory Power:

• “Defendant MPA is a Michigan corporation, and its principal place of business is located in Michigan.”
• “Defendant conducted business in Colorado under the assumed names Colorado Food Service Compliance Center and The Colorado Labor Law Poster Service.”
• “Defendants listed a Colorado address for both entities that was nothing more than a mail drop.”
• “Defendants did not maintain an office, or conduct any business operations, in Colorado other than mailing flyers from Michigan to Colorado.”
• “Defendants’ solicitations violated the CCPA.”
• “Defendants’ misrepresentations included misleading consumers into believing that MPA was a Colorado company or a government or government-affiliated company dedicated to compliance with governmental regulations when defendants are a Michigan company engaged in selling posters available for free through true governmental entities.”

Good luck ...

Consumer Protection Act - Opposing Summary Judgment - Part 1

Defendants always file a a motion for dismissal or for summary judgment on Colorado Consumer Protection Act claims. One typical defense strategy is to misconstrue the claim in the papers for summary judgment motion. Classic misdirection to bamboozle the court.

By misconstruing a CCPA claim, however, defendants fail to carry their initial burden on summary judgment. It is firmly stated in case law that the “moving party has the burden of establishing the nonexistence of a genuine issue.” Briggs v. Am. Nat. Prop. & Cas. Co., 209 P.3d 1181, 1185 (Colo. App. 2009) cert. denied, 09SC324, 2009 WL 3720172 (Colo. June 22, 2009). Plaintiffs too often overlook this first step in opposing summary judgment.

If a defendant fails to carry its burden, no burden shifts to the plaintiffs, and summary judgment can and should be denied on that basis alone. At least ask the court to so rule.

It is always prudent, however, in opposing summary judgment to show that a host of genuine issues, some undisputed, some disputed, exist either of which precludes summary judgment.

As courts should knows, “[w]hen the pleadings and affidavits show material facts are in dispute, it is error to grant summary judgment. The facts must be viewed in the light most favorable to the non-movant.” Mullen v. Allstate Ins. Co., 232 P.3d 168, 171 (Colo. App. 2009). On motions to dismiss, “the court considers the facts alleged in the pleadings, taking them as true and viewing them in the light most favorable to the plaintiff, as well as documents attached to, incorporated by reference in, or otherwise referred to in the complaint.” Gen. Steel Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010).

Moreover, a “motion to dismiss . . . is looked on with disfavor and should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief.” Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538, 539 (Colo. App. 2005).

 More later ...

Consumer groups: Type of van in NY crash unstable

WHITE PLAINS, N.Y. – A church van that blew a tire and rolled over on the New York state Thruway, killing six people, is a type that some consumer groups have been calling unsafe for nearly a decade.

Public Citizen and Advocates for Highway and Auto Safety both told The Associated Press on Monday in response to a question that they have been pushing for years for recalls, retrofits and redesigns of 15-passenger vans on the grounds that they are unstable.

via news.yahoo.com

See more on my 15-passenger van accident attorney microblog.

Ford's m.o. is to blame the tire, which of course could also be defective, but even with a defective tire and a blowout, the van if safely made with no defect in its architecture, should not have rolled over. In a case in California involving a Ford 15-passenger van in which I and my co-counsel have just recently filed a complaint, a rear Cooper tire failed and the van rolled over resulting in death and severe injuries. Isn't it time to get these murderous machines off the road for good?

15-passenger van accident

The 15-passenger van is so unstable and thus fundamentally defective that it strains the mind why such things are allowed to exist. Here it is on the showroom floor:

Here it is rolled over:

Yes, this 15-passenger van also had a defective tire which resulted in a tread separation at highway speed. Still, the van should have been and could have been manufactured not to rollover even with a tire tread separation. Please, don't get in these death traps. If I never get another one these cases because there are no more of these rollover vans on the road then I'll know that my past work in holding the manufacturers of these 15-passenger vans accountable was worth it.

CTLA 2010 Presentation - Attack, Deny, Delay: Industry’s Playbook for Avoiding Consumer Justice

NHTSA - 47,000 Auto Complaints/Year Divided by 21 Staff = Disaster

I subscribe to Google alerts about Sean Kane, who was recently quoted in a news report by 10news.com reporting San Diego:

"They clearly have a job that's nearly impossible," said auto safety expert Sean Kane.

He's talking about the National Highway Traffic Safety Administration, the federal agency in charge of tracking complaints. ...

10News discovered in the past five years, NHTSA received more than 235,000 complaints detailing problems about vehicles on the market and on the road.

But there are only 21 people working on in the agency's Office of Defects to investigate the complaints.

Do the math: 235,000 complaints over 5 years equals 47,000 complaints per year, divided by 21 staffers at the ODI (Office of Defects Investigation)  equals over 2,200 complaints per staffer per year.

No wonder far too many ODI "investigations" are little more than calling the auto manufacturer and saying "Hello, we got a complaint.  Please send us any info?" The typical big auto response: "Must be driver error."

Call your congressional representatives and senators!

iPhone, Pundits and Bad Legal Opinions - Readers Beware

Everybody has an opinion. Lately, everybody has a legal opinion. You have heard of jail-house lawyers, felons who make the most of their life sentences by reading case law all day. Now, everyone's a lawyer without doing any reading at all. Consider this by one Wilson Rothman (twitter), sci-tech columnist for msnbc.com and cook, about the iPhone 4 and the news that lawsuits have been filed over its apparent defects in reception capabilities:

What's annoying is that lawyers catch wind of this healthy debate and think, "How can I use this to make money?" So, within a week, the first anti-iPhone 4 class action suits have been filed. There are a lot of serious terms being hurled hither and yon, my favorite being "breach of implied warranty of fitness."

But how on earth is anyone going to prove this stuff? It's not enough to show that the iPhone 4 has some reception quirks — I imagine you'd also have to prove that other phones don't. Good luck with that.

See msnbc column here.

Actually, what's more annoying is that sci-tech/cook pundits get wind of these lawsuits and think: how can I fill my next column with some edgy commentary which disparages lawyers and the American legal system? The foregoing by Rothman is complete garbage. His msnbc editor, if indeed he even has one, is as clueless as Rothman.

It is doubtful that the iPhone 4 lawsuits are going to try to prove up the breach of implied warranty claim by showing that the iPhone 4 has "reception quirks." And one does not typically have to prove that other products in the category are free of quirks.  Rothman clearly cooked all that up out of sheer desperation for something to say.

What's truly ironic is that Rothman himself, in the very same silly column, alludes to what could be evidence of a breach of implied warranty!

Steve Jobs' promise that calls would be better because of the new body design? That must have been wishful thinking.

If in fact Steve Jobs made that promise, then that, Mr. Rothman, might be some evidence which would support a breach of warranty claim, or a breach of contract claim, or perhaps a consumer protection act claim.

If Apple customers bought the iPhone 4 on the strength or authority of that promise, which promise of better reception was not in fact kept, how could a lawsuit for breaking that promise, a promise on which customers relied, be "asinine," as Rothman writes in his "legal" opinion masked as a tech column?

No, what is asinine is Rothman failing to exercise a moment's reflection on his opinions to see that he refutes himself.

Rothman is not the only would-be blogger-lawyer with asinine legal opinions which Apple customers read at their peril. See this for more bad legal advice: The Apple-AT&T class action suit should have come years ago.

Public Safety - Proper Vehicle Tire Inflation

Although my products liability and insurance bad faith law practice is nationwide, my base camp is in Denver, Colorado.  So, I was concerned when I came across this recent survey by the Rubber Manufacturers Association of vehicle tire inflation in the Denver area:

NATIONAL TIRE SAFETY WEEK
2010 TIRE PRESSURE SURVEY FACT SHEET – DENVER

• Only 10% of vehicles had four properly inflated tires.
• Nearly 52% of vehicles had at least one under inflated tire.
• 18% of vehicles had at least one tire under inflated by 8 pounds per square inch (psi).
• 24% of vehicles had at least one tire under inflated by 6 psi.
• 34% of vehicles had at least one tire under inflated by 4 psi.
• Tires may lose up to 1 psi per month.
• Many vehicles equipped with tire pressure monitoring systems would not issue a warning even after a drop in tire pressure of 8 psi. These systems issue a low pressure warning only after tire pressure drops 25%.
• Properly inflated tires can improve fuel efficiency by 3.3% and save $.09 a gallon at the pump. Approximately 1.2 billion gallons of fuel are wasted each year by U.S. motorists driving on under inflated tires.
• The National Highway Traffic Safety Administration (NHTSA) estimates that under inflated tires contribute to more than 600 fatalities and 33,000 injuries each year.

The survey was based on three hundred and seven vehicles’ tire pressures checked by Peerless Tyre Company outlets in the Denver area.

In my practice, manufacturers of defective tires, tires which suffer catastrophic tread separation for example, typically plead that the victim failed to properly inflate the tire or failed to maintain proper tire inflation.  Check your tire pressure.

Bad Faith Breach of Insurance Policy - Don't Let This Happen to You

My practice also concentrates on insurance recovery, which simply means getting your insurer to pay for your loss according to your policy. You paid the premiums, after all.

It is common knowledge that the business of insurance is not complicated: insurance companies collect premiums and deny claims, including legitimate claims.

To deny, delay or obfuscate a proper claim is bad faith.

Recently, in Nunn v. Mid-Century Ins. Co., 215 P.3d 1196 (Colo. App. 2008), the intermediate Colorado appellate court reiterated the contours of the tort of bad faith breach of insurance contract:

"Colorado recognizes a cause of action in tort for an insurer's bad faith breach of its obligations under its contract with its insured. ...

The insurer's duty to its insured to act in good faith includes the obligation to act reasonably in the payment and settlement of claims. Thus, an insurer that unreasonably refuses to settle a claim against its insured, or unreasonably delays in settling such a claim, may be liable to its insured for bad faith breach of the insurance contract. ...

Actual damages are an essential element of a claim for bad faith breach of an insurance contract, which the insured must prove by a preponderance of the evidence. Colorado law on this point is therefore consistent with the “fundamental maxim of the Anglo-American tort law that a wrong without damage ... is not actionable ....”

The fact of actual damages must be proved with reasonable certainty. The amount of actual damages sought cannot be based on mere speculation or conjecture.

Where an insurer has breached its obligation to act in good faith, compensatory damages for economic and non-economic losses are available to make the insured whole and, where appropriate, punitive damages are available to punish the insurer and deter wrongful conduct by other insurers.

Economic compensatory damages may include, among other things: (1) a judgment within policy limits payable by the insured to a victim where the insurer has unreasonably denied coverage or refused to settle; (2) a judgment in excess of policy limits payable by the insured to the victim where the insurer has unreasonably denied coverage or refused to settle; (3) attorney fees and costs incurred by the insured in defending against the victim's claim where the insurer has unreasonably refused to provide the insured a defense; and (4) damage to an insured's credit caused by the recording of the victim's judgment against the insured where the insurer has unreasonably denied coverage or refused to settle.

Non-economic compensatory damages recoverable for the insurer's bad faith breach “include emotional distress; pain and suffering; inconvenience; fear and anxiety; and impairment of the quality of life.” These types of damages may be incurred by an insured where the insurer acted in bad faith by denying coverage, failing to settle or unreasonably delaying in settling, or refusing to provide a defense for the insured.

In Colorado, ... in the context of a claim for bad faith breach of an insurance contract, the insured must prove compensatory damages as a threshold matter before punitive damages may be awarded."

15-Passenger Van Accidents - Stop the Carnage

On June 7, 2010, another 15-passenger van accident, this time in Arlington, Texas. See story here.

Fortunately, there were no fatalities, but the dangerous vehicle should not have rolled over. Instead, vehicles should be designed to slide out when the driver maneuvers to avoid a collision.

Last week, in Kentucky, yet another accident involved a 15-passenger van, although it is unknown if the known defect in the van was to blame. See story here.

More information on the defective 15-passenger van here.

Used Tires = Dangerous Tires

Perhaps because of the weak economy or higher tariffs on new Chinese tires, sales of used tires have skyrocketed. Tire sellers maximize their profits by selling used tires. An article in the trade magazine, Tire Business, asks: “What can used tires do for your dealership? Actually, what can't they do might be an easier question to answer. Used-tire trade-in programs can boost both volume and gross profits, as well as help independents compete against mass merchandisers.”

But what may be a boon to the tire retail market is not necessarily good news for the safety of the motoring public. And, consumers looking for a good deal on a used tire may be buying themselves bigger and more expensive problems down the road.

Used tires are most often sold with a simple visual inspection, which provides no indication about the inner condition of the tire. Most used tire sellers have no knowledge of where the tire came from and what stresses they may have been subjected to. Not surprisingly, used tires – even those that appeared in good shape and with sufficient tread depth – have been implicated in catastrophic accidents caused by tire tread separations.

The Rubber Manufacturers Association, a tire industry trade group has estimated that 30 million used tires are sold to motorists each year – amounting to about 10 percent of all tires sold annually in the U.S. See e.g., Sales of used tires kick up new concerns - Auto safety group seeks stricter regulations for selling worn wheels, which can cause deaths, David Shepardson, Detroit News, Washington Bureau.

That inventory is gathered from a variety of sources: tire service center scrap heaps, salvage yards and web classifieds. Most used tires come from large multi-state recyclers who pick up scrap tires and “recycle” them back into the marketplace. If a tire has at least 2/32nds of an inch of tread left and no obvious visual defect it’s resold—after a cleaning and sometimes even a coat of black paint to make it appear newer.

There’s a reason why that used tire was discarded by the first purchaser. But the second purchaser won’t know the reason and odds are, the used tire seller won’t know either. Many defects in a used tire won’t be readily visible and some of the damage is invisible to the naked eye.

Read more here ...

15-Passenger Vans with Cooper Tires = Fatal Rides

Soon, co-counsel in various jurisdictions and I will file a major, personal injury and wrongful death action in California against several defendants, including Ford Motor Company and Cooper Tire. The 15-passenger van experienced a left-rear tire tread separation and then rolled over, injuring many and killing one. The 15-passenger van was a defective Ford van made doubly dangerous by being mal-equipped with defective Cooper tires.

The passengers, our clients, never reached their destination as they rightfully expected. After the short and fatal ride, NHTSA (National Highway Traffic Safety Administration), issued a "Research Note" which found:

• In 2007, fatalities to occupants of 15-passenger vans increased nearly 20% from the previous year.
• In 2007, there were 45 fatalities in 15-passenger vans that rolled over, 73% more than in 2006.

In our case, the fatal ride occurred in 2008. To our injured clients, and to counsel, fatality  trends  are absurd.

Point of concern: The NHTSA Research Note concluded: "All new 15-passenger vans being manufactured now have [Electronic Stability Control] ESC as standard equipment. When enough data are available, an analysis of the effect of ESC on rollover fatalities in 15-passenger vans will shed more light on this issue."  NHTSA fully expects that 15-passenger vans will continue to rollover; that is, vans without ESC will not be recalled as fatally dangerous and defective! Even if fatalities decline going forward, there will still be numerous van rollovers, many causing severe personal injury and death.  No single vehicle mishap -- a tire tread separation, for example -- should rollover, no matter the driver's skills. Tires should not suffer tread separations, but if they do, the vehicle should not roll over.

Welcome to my law blog

HELLO, I'm Randy Barnhart and this is the inaugural post on my law blog. My aspiration is to alert and inform readers about my law practice and the unnecessary injuries and deaths caused by defective products such as 15-passenger vans, about wider developments in American legal culture, and even to foray into popular culture generally, the better my existing and prospective clients, colleagues and connections can know me.

After 30 years in the legal profession, far from suffering the common ailment known as burn-out, I am happy at work, for several related reasons. I recently said farewell to corporate attorney partnerships and founded my new law firm, of which I am the sole principal.

Attorney partnerships have their advantages, but those advantages redound to the attorneys and may detract and distract from service to clients yearning for attentive and personal counsel. I still see the value of associated counsel, either as "of counsel" to the firm or as ad hoc support team-members. But those relationships are more easily managed to benefit a client's cause.

The world has changed (and is changing still), and going solo is the best law firm model for that new networked world. It may seem counter-intuitive, but the networked world allows a solo law practice to be a national law practice, as I am often retained with undiminished communication and collaboration by less-experienced local counsel in different states whose clients profit from my many battles against big auto and tire makers, such as Ford Motor and Firestone, and giant insurance companies. 

My past and current cases color the map: Colorado, California, Texas, and Florida, and I litigate in both state and federal courts.

So, my law practice is now focused on two areas or types of cases:

1) product liability litigation for personal injury, especially against manufacturers of defective 15-passenger vans, autos, suvs, trucks and tires; and

2) insurance recovery litigation on behalf of individuals and businesses, including securing compensatory and punitive damages for bad faith breach of insurance policy.

Clients benefit by this concentration. Below, some notes about defective and dangerous passenger vans, many manufactured by Ford.

Defective 15-passenger Vans

According to the Insurance Institute for Highway Safety, 15-passenger vans debuted in 1972, when Ford transformed what was built as a cargo van into a passenger vehicle by adding five rows of seats. Today, according to 2008 registrations, there are about 500,000 15-passenger vans on the roads. Too many of them leave the road:

Before -
After -

Read more...

On any post, constructive comments are much appreciated. Come back soon - new posts every week.