The answer at first blush might be "No." After all, a logical question might be: "How can you have a claim for lost wages if you weren't employed at the time of your crash?"

YOUR LOST EARNING CAPACITY IS THE KEY (YOUR GLASS IS HALF FULL)

What is "earning capacity?" It is income generated if a person employs his or her assets to their full capacity. Most all adults have some capacity to earn money. For example, let's assume you've been a medical technician at a local hospital for five years. You just lost your job due to cutbacks and you're in the process of applying for a new job. Duing this interim period, you're hit at an intersection by an 18 wheel rig that runs a red light. Given your injuries, you're essentially taken out of the job hunt for 6 months.

Do you have a legitimate claim with the trucking company's insurer for lost income even though you were not employed at the time of the collision? Ohio law allows injured persons to recover for their lost earning capacity. Here is the formula Ohio courts will use:

The measure of damages for impairment of earning capacity is the difference between the amount which the injured person was capable of earning before the injury and what he/she is capable of earning after the injury.

PROVING IT

Sounds great in theory but how do you get an insurance company to recognize/honor a claim? First, your past earnings history needs to be established as a baseline. Second, your treating physician needs to state in the medical records or in a report the time frame you would have been reasonably ordered off work due to your injuries, had you been working.

And, finally, you should make a concerted, good faith effort to find employment, whether it is related to your occupation/field or not, as soon as you are physically able. You need to show that you are doing everything possible to find work.

There may be room for argument as to the amount of your claim under these circumstances, but it does not mean you're entitled to zilch, especially if your earnings history was good and the timing of the crash was bad.


If you're "going it alone" after your collision and relying upon the insurance company to "treat you fairly" in this instance, you can be sure they'll tell you: "You can't make a lost wage claim because you weren't employed at the time of the collision." Not necessarily true. But don't expect the adjuster to explain the nuances of lost earning capacity income to you. My guess is there's some section in the "insurance claims handling procedure manual" that prohibits any discussion of this.

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This is what YOUR OWN auto insurance company can do to you after you're in a crash that's not your fault. Client's son, a passenger in a car, is seriously injured in a crash due to a friend/driver's negligence. Both the driver and the son's family have the same insurance company.

As a passenger in the friend's vehicle, the boy is eligible for medical payments coverage of $10,000, the limits of the driver's medical payments coverage. The insurance company pays the $10,000 limits on the first volley of bills. The boy's bills, however, greatly exceed $10,000.

The boy's family also had $5,000 in medical payments coverage on their family auto policy with the same company, meaning that there was an additional $5,000 immediately available to pay for additional bills. Problem: the insurance company never notified the family of the availability of this additional coverage under their own policy.

The insurance company holds on to the claim for over 1 year. No offer of settlement is made, despite promising to "work with" the family on resolving the claim. In the meantime, medical bills are pouring in, and, eventually, the family is turned over to numerous collection agencies, who are hounding the family for payment.

After all the frustration and delay, they hire me, and my first question to them is: "Were you even told by your insurance company that you were eligible for an additional $5,000 in coverage to pay some of these additional bills?" "Nobody told us any of that" is the response.

I immediately fire off a letter to the insurance company asking if they notified the family of the additional coverage, and it is admitted that not only was the coverage available, but it should have been offered. The ball was dropped, pure and simple.

Or was it? This is what can happen when folks with no experience in the nuances of insurance coverage or handling their own injury claim are left to deal with an insurance company or an adjuster with hundreds of claims. Perhaps this additional coverage simply got overlooked. But here's the ultimate problem: insurance companies often view the claims process as an adversarial relationship, even with their own insureds. It is not a relationship that lends itself to them asking questions like: "How can we help this family get through this" or "How can we be fair to them?"

More likely than not, their sole question is: "How can we get rid of this claim with paying the least amount possible?" That does not make them evil; it's their business plan. And it works. Just ask yourself: how many insurance companies went belly up in the worst economic meltdown since The Depression? When suspicion and saving money on a claim are motivating factors, and when nobody is truly looking out for the injured person's best interests, things like failing to notify insureds of additional coverage(THAT THEY PAID FOR) happen. And in this case, it was inexcuseable.

If the family was properly informed of this coverage over a year ago, many of these straggler bills would have been paid, with no bad implications for their credit rating. The take away lesson here is that if you're going to "go it alone" with an insurance company, you do it at your peril...

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I couldn't make this up if I tried. Looks like Barbie is about to be hauled back into court in the latest nauseating sequel of a never ending legal war pitting Mattel versus the maker of the rival "Bratz" doll. I wrote about the original "Barbie v. Bratz" legal skirmish ("Doll Wars") here. Round one went to Mattel/Barbie, which was awarded a $100 million jury verdict against MGA/Bratz because MGA misappropriated ideas for doll designs from Mattel.

Well, get ready for "Doll Wars II-Bratz Girls Strike Back." According to Courthouse News Service, MGA/Bratz is now suing Mattel for $1 billion, claiming violations of Antitrust laws and other evil corporate misdeeds. According to the lawsuit:

The Barbie doll was so threatened by the success of the Bratz doll that Mattel launched an abusive campaign to "Kill Bratz," violating antitrust laws and suing MGA Entertainment "to death," MGA claims in Federal Court. So virulent was the attack, MGA claims, that Mattel used industrial spies with false IDs, intimidated and threatened Bratz vendors, and "spread press releases that Bratz sexualizes girls and that Bratz dolls say the 'F' word (which they do not)."

Did I mention that nobody could really make up this stuff? What's more, MGA alleges that Mattel spent $270 MILLION in attorneys fees to destroy MGA and "kill Bratz" with a scorched earth litigation strategy.

I couldn't help but juxtapose the latest Doll Wars legal skirmish against the latest push in Congress to limit malpractice victims' recovery to $250,000. So let's juxtapose, shall we? Never ending billion dollar lawsuits, and $270 million in attorneys fees dedicated to denigrating plastic dolls that carry neat little outfits and that may or may not throw F bombs. Meanwhile, if a doctor mistakenly removes a woman's non-cancerous breast, or a hospital mistakenly overdoses a child and renders her comatose, either's lifetime of misery is liquidated to $250K.

What do we call this current state of affairs? The way things ought to be, according to The Chamber Of Commerce. After all, we need to reign in malpractice lawsuits and all those predatory lawyers, right? But when it comes to corporations hiring armies of lawyers to sue each other into oblivion, we need a robust, hands off legal system so businesses can fully enforce their contract and property rights. Sounds great if there's an "Inc." after your name. But for all you "ordinary folk" out there who fall victim to malpractice, you need to sacrifice your rights and your recovery for the collective good of society. Consider your diluted legal rights an act of patriotism that will create jobs. This is what The Chamber is selling right now with the $250K cap that Congress is considering.

No word yet on whether Barbie or any of The Bratz Girls will testify at trial. My advice is to avoid the skimpy outfits, wear muted colors, and avoid the F bombs when taking the stand. I'm sure both of them will get their days (or should I say years) in court. Malpractice victims? The line from an old Wendy's commercial comes to mind: "Step aside."

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Hear that sound? It is, FINALLY, the rush of fresh air clearing the room of a stale, stenchy debate over medical "tort reform" that has festered for too long. Former Senator Fred Thompson has weighed in on the fallacy of the medical/insurance industry's never ending fixation on limiting the rights of Americans through restrictive caps on damages in medical malpractice cases.

In his op ed piece, he cuts to the heart of the "medical tort reform" debate: that government imposed caps on damages are anything but a "conservative" principle:

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal

.

You have to wonder why hard core conservatives or Tea Partiers, who supposedly revere The Constitution and espouse "limited government," seek to impose one size fits all caps on damages in all fifty states, and trample the Seventh Amendment right to trial by jury. As a matter of conservative principles and logic, hard caps simply make no sense.

So why are Republicans making federally imposed caps the centerpiece of their health care reform? He subtly hints at the reason:

"I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong."

Translated, the American Medical Association, The Chamber Of Commerce, and the insurance industry have been clamoring for it for years, and they heavily support the same politicians who are currently pushing for these laws.

So much for "conservative values" or the sanctity of The Constitution. Instead of adhering to either, the "cap your rights" gang in Congress is borrowing a slogan straight out of the movie Jerry Maguire: "Show us the money...and we'll give you what you want."

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