Tuesday, March 18, 2014

When Primary Insurance Isn’t Enough...

Back in law school, one of my professors told a story about a young family-law attorney who agreed to take a catastrophic car accident case involving a big rig. The attorney wasn’t particularly familiar with personal injury law, but the client was a friend of the family and the lawyer wanted to help. It quickly became apparent to the lawyer that the victim’s injuries were severe and that the insurance policy carried by the big rig wasn’t going to come close to covering the hospital bills. Hoping to get what help the policy could provide, the attorney was prepared to settle the case for the value of the truck policy when a friend mentioned that big rig outfits usually carried two different policies, one for the cab and one for the trailer. The lawyer had been about to settle the case for the value of the much smaller cab policy.

Policy Stacking

While mistakes like these are tragically common among lawyers who practice outside of their areas of expertise, that isn’t the moral of this story. Rather, I’d like to draw your attention to the concept of policy stacking. Policy stacking is the practice of collecting from more than one insurance policy for the same underlying claim. The policies in question might be carried by the same company or by different companies, and there might be two or two-hundred (or more as the case may be). Before we get into the details of how this might work in different situations, let’s be clear about one thing; nowhere is the law generally willing to give a person a windfall. In other words, while there are many situations in which an injured party may be able to collect from multiple insurance policies, almost always the total collection is limited by the total amount of damages. A defendant, with rare exception, cannot get paid twice for the same injury.
Umbrella Insurance

Policy stacking can mean a couple of different things. On the one hand, multiple primary policies might be implicated by a single incident. On the other, there might be a conflict between a primary policy, like an auto policy, and an umbrella policy such as typical homeowner’s insurance. In either case the question becomes, which policy or policies are responsible for the loss. To illustrate, let’s look at a standard auto accident situation. In our example situation, Driver B hits Driver A and is liable for Driver A’s injuries. Driver B has a state minimum car insurance policy which will pay a maximum of $15,000. Unfortunately, Driver A’s injuries come out at $100,000 leaving $85,000 in uncovered damages. In this case, the primary policy, the auto insurance, has been exhausted and any secondary coverage must be addressed. Fortunately for Driver A, Driver B carries a homeowner’s umbrella policy with a one million dollar coverage limit. This policy will cover any incident for which Driver B becomes liable, but only after primary insurance has been exhausted. Has this coverage been triggered?

Med-Pay Provisions

Med pay clauses are provisions in an insurance policy that cover medical expenses, up to some given limit; usually regardless of fault. Let’s assume that Driver A had a $5000 med-pay provision in their policy. Even though Driver B was at fault in the accident, Driver A can still collect this $5000 from their own policy. After this $5000 is paid out, can Driver A now seek coverage from Driver B’s umbrella policy?

Uninsured and Underinsured Coverage

Maybe, but there still might be more to the puzzle. I’ve written about uninsured and underinsured coverage in the past, but it’s implicated again here. Let’s assume that Driver A elected optional uninsured coverage in the amount of $30,000 when they purchased their own policy. This coverage will step in and compensate them for losses not wholly covered by another driver who was at fault in an accident. However, it only partially stacks; Driver B’s $15,000 in coverage will be deducted against it; meaning that Driver A’s uninsured coverage will only pay an additional $15,000 in our example.

So Where Do We Stand?

Based on the example we’ve been working through, Driver B’s primary auto policy will pay $15,000, Driver A’s primary auto policy will pay $20,000 ($5,000 med-pay and $15,000 UIM) leaving $65,000 in uncollected damages to Driver A. Assuming no other policies are implicated, this is where Driver B’s umbrella policy will finally step in and take over coverage; filling the gap left by the other layers of insurance.

As this example should make clear, insurance stacking can potentially become very complex. In large commercial policies, the situation gets even worse. Policy stacking issues went all the way to the California Supreme Court back in 2012 and look set to return there based on a 2013 State Appellate court ruling. While commercial coverage is beyond the scope of this article, it’s important to recognize that the question of which, of many, possible insurance policies might be liable for a given injury isn’t necessarily an easy one to answer; and, as with many other aspects of personal injury law, experience matters when it comes to finding coverage for severely injured accident victims.

Monday, March 3, 2014

Maximums and Minimums: who chooses the right criminal sentence?

Allen Alleyne and an accomplice robbed the manager of a convenience store as the manager was leaving to make a bank deposit. Both Alleyne and his accomplice carried guns. After tricking the manager into stopping his car, Alleyne’s accomplice approached the manager, pressed a gun to his head, and demanded the cash the manager was carrying. The manager complied and both suspects fled the scene. Alleyne was later arrested and charged with two crimes, one for the robbery itself and another for using a firearm during a robbery. At trial the jury was asked to decide two critical questions, did Alleyne carry or use a weapon during the robbery and did he discharge that weapon. The jury found beyond a reasonable doubt that he had carried or used a weapon during the robbery, but made no determination as to the second question.

Under applicable federal law, the sentence for robbery changes when a firearm enters the picture. For a carrying a gun, a defendant faces 5 years, for brandishing a gun, 7 years, and longer still for actually discharging a gun. During Alleyne’s sentencing hearing the judge decided, on a preponderance of the evidence (meaning more than 50% likely), that Alleyne had actually brandished his weapon and accordingly imposed the 7 year enhanced sentence. Alleyne appealed, arguing that the sentence violated his Sixth Amendment rights because this fact had never been properly submitted to the jury. The case eventually wound its way to the U.S. Supreme Court – but let’s backup for a second.

What are sentence enhancements?

While every state has its own set of criminal laws, as does the Federal Government, most systems incorporate one or both of two types of statutorily mandated sentencing guidelines; mandatory minimums, or statutory maximums. The distinction between the two can sometimes get confusing so we’ll consider each separately.

Mandatory Minimums

Mandatory minimums refer to the smallest (least harsh) penalty a judge is allowed to apply to a given class of criminal defendant. When presented with a case in which the facts match the conditions established by the applicable law, a judge does not have the discretion to hand down a sentence lower than the minimum prescribed by the legislature; use of a deadly weapon, rape or child abuse, targeting an elected official, racially or religiously motivate crimes, and many other things can often lead to mandatory minimum sentences. Where one applies, a lesser sentence cannot be imposed, no matter how appropriate it might seem in an individual case.

Statutory Maximums

Statutory maximums are just the opposite (almost). Here, the legislature has defined the maximum penalty that a given class of defendants can face. A judge presiding over an applicable case does not have the discretion to impose a harsher sentence than the cap established by the legislature; no matter the nature of the particular defendant in question. Many crimes have caps on the punishment that can be applied. However, there are often ranges provided depending on the facts. For example, using a fire arm during a robbery can increase a defendant’s exposure by several years over a similar defendant who committed an identical robbery without a firearm. Judges do not have to impose maximum sentences, but cannot exceed them. The range of possible sentences falling between any applicable mandatory minimum and statutory maximum equals the defendant’s potential exposure.

Who decides?

Often it is the judge who decides a specific penalty. Get picked up for insider trading under sympathetic circumstances and you might find a judge willing to “go easy” on you. Hassle the judge all the way through a trial, and you’re more likely to find yourself facing a harsher sentence. However, things become somewhat less clear, and, until Alleyne, less constitutionally certain, when a mandatory minimum or statutory maximum sentence range is triggered. Usually these conditions result from the specific facts of the case; did the defendant carry a gun, how old was the child, how much money was involved, and the like. Is a judge allowed to determine the existence or extent of such facts during the sentencing phase of a trial, or must the jury find the existence of these facts beyond a reasonable doubt?

Enter the Supreme Court

In 2000, the Supreme Court weighed in; declaring that any fact which raised a statutory maximum must be decided by a jury beyond reasonable doubt but that judges were free to determine facts triggering a mandatory minimum based only on a preponderance of the evidence. For a decade this inconsistency in the law stood strong against numerous attacks by scholars and repeated attempts by the defendant’s bar to have the ruling overturned. Then came Alleyne; based on facts very similar to those in the Court’s earlier decision, and brought on a challenge to the exact same Federal law, both the district court and the Fourth Circuit refused to amend Alleyne’s sentence; standing, so they thought, on strong Supreme Court guidance.


To many people’s great surprise, the Court changed its mind. The majority in Alleyne held that statutory maximums and mandatory minimums weren’t different after all; facts triggering both types of sentencing guidelines must be decided by a jury beyond a reasonable doubt. It took a few years, but the right decision was ultimately made. Thanks to Alleyne, the full protection of the Sixth Amendment’s trial by jury requirement is now available to criminal defendants facing a legislatively proscribed sentencing enhancement under either State or Federal law.