ENOUGH ALREADY!

As I read Hamilton Mutual Insurance Co. of Cincinnati v. Buttery, 2005-CA-000233-MR & 000426-MR (January 26, 2007)(To be published) out of the Kentucky Court of Appeals I was dismayed by the horrendous conduct of the insurance company and how long the process dragged on. I’d bet the insurer suffered little actual economic loss because they had time to invest the monies and reap the interest. Plus, they get to deduct these damage awards from their tax liability.

The home of this fellow, Buttery, was burglarized and vandalized in 1998. The adjuster who came out told him he would have the insurance money withing 10 days. I guess this insurer felt godlike where a single day is like a year and a year is like day becuase it is 2007 folks!

Buttery was asked to complete and submit claim forms. Although his homeowner’s policy provided for the more generous replacement value of the items taken or destroyed, Hamilton Mutual instead provided Buttery with claim forms to recover the actual cash value of the lost items without advising Buttery that his policy covered replacement value for losses. Buttery completed and submitted the proof of loss forms within twenty-four hours. . . .

In seeking compensation for the loss, Buttery ultimately submitted a vast amount of paper work and documentation, including: three proof of loss statements; all the receipts that he had for the stolen or destroyed items; written estimates that he had obtained for the cost of repairs to his home; and his tax returns for the previous five years. Buttery also appeared for four examinations under oath conducted by Hamilton Mutual. When he sought to present his accountant for interrogation, Hamilton declined an interview. Buttery claimed that he had sustained a loss of nearly $58,000.00. Nearly a year after the loss, Hamilton Mutual had not yet satisfied any part of the claim. Buttery filed suit. Following a jury trial, judgment was entered in favor of Buttery in the amount of $57,375.47. . . .

In an opinion rendered on June 8, 2001, a panel of this court unanimously affirmed the judgment. Hamilton Mutual then filed a motion for discretionary review in the Supreme Court, which was denied on June 5, 2002. Nonetheless, Hamilton still refused to comply with the judgment. Buttery had to file a motion in the trial court for forfeiture of Hamilton’s supersedeas bond. At long last, after more than four years, Buttery received payment for his claim. By that point, Buttery had incurred more than $28,000.00 in fees and expenses . . . .

In June 2001, Buttery filed this bad faith action against Hamilton Mutual. A jury trial was conducted in October 2004. After considering the evidence presented to explain Hamilton Mutual’s delay in paying the claim made under the homeowner’s policy, the jury returned its verdict in favor of Buttery. The jury found that Hamilton Mutual lacked a reasonable basis to refuse payment of Buttery’s claim and that it either knew that it lacked such a basis to refuse payment or that it acted with reckless disregard as to whether such a basis existed to justify its refusal to pay. The jury also found that Hamilton Mutual had violated nine separate provisions of Kentucky’s Unfair Claims Settlement Practices Act, Kentucky Revised Statutes (KRS) 304.12-230 (“UCSPA”). Buttery was awarded $251,003.05, including punitive damages; $12,737.17 in prejudgment interest; and an additional $27,102.64 in attorney’s fees.

Thankfully, the Court of Appeals agreed that the insurer’s behavior was outrageous and affirmed the decisions out of the Knox County Circuit Court. DO YOU KNOW WHO YOUR INSURER IS?

Education is the Key!

Provided by a CPA except for a change to #6 to maintain a semblance of political correctness:

Last week I purchased a burger at Burger King for $1.58. The counter girl took my $2 and I was digging for my change when I pulled 8 cents from my pocket and gave it to her. She stood there, holding the nickel and 3 pennies, while looking at the screen on her register. I sensed her discomfort and tried to tell her to just give me two quarter S, but she hailed the manager for help. While he tried to explain the transaction to her, she stood there and cried. Why do I tell you this?

Because of the evolution in teaching math since the 1950s:

1. Teaching Math In 1950:

A logger sells a truckload of lumber for $100. His cost of production is 4/5 of the price. What is his profit?

2. Teaching Math In 1960:

A logger sells a truckload of lumber for $100. His cost of production is 4/5 of
the price, or $80. What is his profit?

3. Teaching Math In 1970:

A logger sells a truckload of lumber for $100. His cost of production is $80. Did he make a profit?

4. Teaching Math In 1980:

A logger sells a truckload of lumber for $100. His cost of production is $80 and his profit is $20. Your assignment: Underline the number 20.

5. Teaching Math In 1990:

A logger cuts down a beautiful forest because he is selfish and inconsiderate and cares nothing for the habitat of animals or the preservation of our woodlands. He does this so he can make a profit of $20. What do you think of this way of making a living? Topic for class participation after answering the question: How did the birds and squirrels feel as the logger cut down their homes? (There are no wrong answers.)

6. Teaching Math In 2007:

Since the mandated testing for No Child Left Behind focuses on reading and comprehension this for this grade and math is tested next year, write an essay about a logger who sells a truckload of lumber for $100.

The Injustice of Custody Battles

I wish I could be posting more often. However, I have been embroiled in two different custody actions. It is befuddling how two people who lived with each other for years, conceived a child or children together, seen each other in their underwear, shared the most intimate aspects of their lives, and even made the ultimate gesture of trust by commingling finances, end up professing their ex-partner to be Satan (or at least one of his minions). Suddenly, even the most mundane matters require the expense of an attorney. The injustice is that the children suffer.

Attorney’s can make this better or worse (obviously). Apparently gravity draws many attorneys down to the latter, baser course of conduct. One tactic that I have recently encountered is the slow draw. The attorney keeps pulling one of their cards from their hands and hints at laying it down on the table. They have practiced holding that card hovering just in sight of the other side as long as they can before the opposing counsel gets aggravated and takes the issue to court. The card never drops. This is a tease in slow motion. Oh, they know that ultimately it will come out that the ex-spouse really isn’t Beelzebub planning on cooking their offspring into a tasty stew at the next visit. But, they want to squeeze out every moment of delay.

I suppose this allows them to go back to the client and say, “I did my very best with all these billable hours, but the judge just …..” Why not put that card down and say here is what we’ve got, here is what you’ve got, this is the usual result -lets get this thing going so the child can have some sense of stability.

Justice may be blind - but she’s loaded!

The web is alive with news that at least one New York law firm has bumped up the starting salary of their new associations to $160,000.00. See Above the Law for a start. Here is Lexington, Kentucky Stoll Keenon Ogden started their 2006 graduates out around $84k and some change. Stites and Greenebaum are in that range more or less. Then, one drops down to mid-size firms who paid their 2006 graduates about $45k. Lousville firms are paying roughly the same - maybe a couple k more. I checked a cost of living calculator and found that $85k here in Lexington equaled $183k in Manhattan.

Now, for those of you going to a big law firm, I hope you realize that most of your work will actually be done by one of those brand new lawyers who are just as inexperienced as every other brand new lawyer. While they were the top of their class (or a relative of a partner), the difference in brain power between the tip-top and the rest of the class measured in decimal places. Choose well Grasshopper!

Attorneys, Churches, Marketing

Check out this post regarding the intersection of attorneys, the church, and marketing. It seems that there would be a way for attorneys to interact ethically with churches and that providing legal information would further the pursuit of justice.

There are many things that individuals can do for themselves with a little guidance and information that would not require the full representation of an attorney. For the poor, and even many in the lower middle class, hiring an attorney is a luxury they cannot afford.

Improving Child Protection in Kentucky part 3

This one sounds straight-forward but it would be difficult. How exactly does one define “neglect, abuse, and dependency” in such a way as to eliminate overreaching but also allow family court judges to protect children in need. I do think the “reasonable grounds” standard should be bumped up to probable cause though how much this would change actual practice is questionable.

3. The vagueness of the definitions of neglect, abuse, and a dependent child under KRS 600.020 makes it difficult to apply the statute in a fair and uniform fashion. Likewise, the statute’s broad terms create the opportunity for findings of neglect, abuse, and dependency to be inappropriately applied. For example, as written, the statute can and, in some cases, has been applied to impoverished families as well as accidental injuries and deaths. The Cabinet should work with the Legislature to make any and all appropriate modifications to the statute to clarify the intent of the statute and, to the extent possible, eliminate the potential for misuse or over-application of the statute. Further, while KRS 620.040 requires a ‘probable cause’ standard before a judge may issue a search warrant to enable a law enforcement officer to enter a residence to evaluate the condition of a child, KRS 620.060 requires petitions for emergency custody to only meet a ‘reasonable grounds’ standard that one of three elements exists, in addition to a finding that the parents or other person exercising custodial control or supervision are unable or unwilling to protect the child. The second condition also includes the statement, “This condition shall not include reasonable and ordinary discipline recognized in the community where the child lives, as long as reasonable and ordinary discipline does not result in abuse or neglect as defined in KRS 600.020(1).” There are nine elements in KRS 600.020(1), adding to the confusion as to what substantiates abuse, neglect, or dependency.

When I was a worker and supervisor for the Cabinet, I only once heard of an ex parte order for the emergency custody of a child to be declined by a judge in my county. Most of the time, the worker presenting the ECO and petition went unquestioned by the judge. I heard from other counties, though, that getting an ECO was very difficult. Neither extreme is desirable. I think in my county, the workers always took the most cautious approach and trusted that the judge would say no if it was unreasonable. The judge always trusted the worker. Neither wanted to hear that the child they refused to remove the night before was now dead or seriously injured.

This “better safe than sorry” approach is entirely understandable. As I explained to someone recently, our society has gone from one extreme of underprotecting children through a slow progression to where we are now. We are now on the upswing of that pendulum and heading into the overprotection range. I suspect the pendulum has a bit farther to go in that direction and what we are hearing now are just the beginnings of recognition that we actually can be overprotective and we are heading that way.

How can we “overprotect” our children? They cannot protect themselves! When I refer to overprotection I am referring to the cost we pay for each increment of increased protection. At some point, that cost is too high. Some of those costs include children being removed when they would not have been at imminent risk of serious injury, death or sexual abuse. I have seen children removed for potential risks (non-imminent) and for non-compliance with workers. That is a high cost. It is damaging to children to remove them from their home - even if it is a far less than ideal environment. I have spent hours moving children from home to home to agency because they were unable to attach to care providers. Many of those attachment disorders were exacerbated or even caused by removal from their homes.

So, the most practical thing that could come from recommendation number 3 above is that both workers and judges are encouraged or somehow required to engage in discussion about each ECO and petition brought, before it is signed, about the imminence of the risk and alternatives that might exist instead of relying on the face of the document alone.

Improving Child Protection in Kentucky part 2

The second Inspector General’s recommendation is a powerful one:

2. DCBS should implement Inspection Teams to periodically complete unannounced inspections of DCBS offices. This process should be modeled after such teams utilized by the Kentucky State Police to ensure agency integrity and compliance. The teams, at a minimum, should be responsible for ensuring that DCBS offices are operating in an effective and efficient manner and adhering to all applicable laws and regulations, as well as agency rules, regulations, policies, and procedures. Further, the teams should ensure that complaints made by staff, courts, advocates, law enforcement, clients, and citizens are evaluated and resolved when validated. The reviews should be conducted uniformly, objectively, free of personal opinions and real or perceived conflicts of interest. The team’s written reports should be submitted to the DCBS Commissioner, Office of Inspector General, General Counsel and Cabinet Secretary. The DCBS Commissioner should sign such report to evidence his/her review and understanding of the team’s findings.

Like I pointed out before, the accreditation process was flawed because a great deal of energy and resources were exerted to make a select group of files look flawless. Since resources were finite, that means that other areas suffered. With the above approach, the goal would be to maintain best practices all the time and with all the families so the finite resources would be distributed more evenly.

Improving Child Protection in Kentucky part 1

There will be a forum in Frankfort this coming Thursday for public input into improving the performance of the Cabinet for Health and Family Services in protecting our children. It is on 1/17 from 1:30 to 3:30 pm. See Lawreader for details. I wish I could make it but I will be in court in another county.

Here is the first recommendation from the Office of the Inspector General’s report:

1. The cloak of secrecy that currently dominates the proceedings relative to the removal of children and the termination of parental rights is not in the best interest of Kentucky’s children and must be removed as part of any material reform. Allowing the proceedings to be open, with exception only by court order, will provide the most fail-proof form of oversight, in turn, ensuring that the citizens of the Commonwealth believe in the integrity of the process and have full faith in the outcomes which it produces. Accordingly, the Cabinet should work with the Courts and the Legislature to implement such changes.

I agree with this recommendation but there is more involved. The purpose for having freedom of the press is to keep the people informed of what their government is doing. This first recommendation seems to contemplate that the press as well as other advocacy groups will monitor and report on how dependency, neglect, and abuse cases are handled. Opening the courts to scrutiny is only the first step. Getting the public to want to know is the second step. I suspect we will find that this second step will be harder than the first step. Historically, society has preferred to keep some horrific things out of the public eye.

Office of the Inspector General Report

This is a long post but I hope you will take the time to read all of it. All the following are direct quotes from the report. I became increasingly tearful as I read it. The quotes I have pasted below I selected because I personally experienced or observed while I was both a worker and later a supervisor with the Cabinet. While the investigation focused on Lincoln Trail region. I can tell you that these comments were reflective of the region where I spent my career also. Please be sure to read that first quote twice. I was an outspoken critic of how things were done and it often cost me personally. I especially hated the 2001 Council on Accreditation process because so much time, energy, and other resources were shifted away from client service to looking good for the site visits. To me, COA accreditation that year meant little more than fancy window dressing. This report, finally, validates so many of the things I was saying years ago.

Investigative Report Regarding Allegations of Misconduct by Certain Employees of the Department for Community Based Services’ Lincoln Trail Region Related to the Removal of Children and/or the Termination of Parental Rights Based on Alleged Abuse, Neglect, or Dependency

The vast majority of the social service workers we encountered during the course of our investigation carry out their very difficult duties in a diligent, honest, and ethical manner.

First, OIG fully recognizes that the tasks which many social service workers face on a daily basis are, by their very nature, daunting. For example, we recognize that there are many times that a social service worker is called upon to make difficult judgment calls under highly stressful situations, wherein the health and safety of both the social service worker and those they are charged to protect are at risk.

While not easily articulated, we discovered a culture, accepted by some staff and rejected by many others, which thrived on the power of controlling certain families, including but not limited to the ultimate exercise of power – facilitating the removal of children from their biological parents and the termination of parental rights. This attitude appears to have been exacerbated by the fact that DCBS regional approach was highly (and we believe inappropriately) decentralized under the previous administration.

Two hundred unassigned referrals were located in one regional supervisor’s office. The regional supervisors, who were responsible for the policy violations, were not disciplined, but frontline supervisors and workers who signed the complaint letter were disciplined and reportedly targeted for retaliation.

Third, during the course of our investigation, we discovered evidence of potential individual criminal conduct

Falsification of Records/Dishonesty:
During the investigation, biological parents were contacted and investigators verified that home visits, documented in case files, did not occur.

Both current and former workers report documentation was omitted or added to case files to intentionally mislead the court.

There have been instances of dishonesty by DCBS employees, in documentation, in court, and in interactions with clients.

The decision to remove a child from their parents’ home is often completed under subjective standards, especially when the allegations involve neglect or dependency issues.

When a worker contacts a home to investigate a referral alleging unsafe living conditions, in essence, they are requesting to make a warrantless search to determine if conditions are safe for the children in the home. In situations where parents deny the social service worker entry into the residence, the worker has two options, contact law enforcement and request they verify the safety of the children or contact the court and request an emergency custody order (ECO). In most cases, the court is contacted.

Workers respond aggressively to any perceived challenge to their actions. For example, biological and foster parents complained children were removed from their home because they “talked back” to the workers.

Case plans are intended to outline the goals biological parents must achieve to have their children returned to their home. Requirements were routinely included on case plans that were expensive, relative to the client’s financial situation; required unnecessary travel; and were not relative to the family’s issues, as identified by the worker.

There was a noted effort by regional supervisory staff to relieve supervisors of their inherent supervisory authority. For example, regional supervisors established a regional policy (Critical Case Decision Making Protocol) which essentially removed all decision-making authority from the FSOS positions. This resulted in a regional supervisor levying decisions, based on the verbal briefing of another staff member, and without any actual case knowledge. Often the verbal briefing was once or twice removed from the actual staff member involved in the situation and the decisions were in conflict with the staff member’s recommendation for the case.

Workers are overworked and are unable to complete documentation during normal work hours. Not all workers are permitted to work overtime, so they work weekends and “off the clock”. One worker came to the office while she was in labor and worked for three hours, after her water broke, to complete casework because a regional supervisor told her she could not take maternity leave until her cases were up to date. Cases were not reassigned or covered when an employee was on extended leave

Caseloads were redistributed, sometimes to vacant positions, prior to the 2001 COA review, to assure compliance with COA standards. Then, caseloads were reinstituted when COA departed. When a worker leaves, the caseload may not be reassigned for several weeks, leaving cases unattended and clients in limbo.

Social service workers have laughed at parents as they advised them they were removing their children and during the removal process.

Employees were retaliated against, through employment, case assignments, and promotions, for opposing supervisors.

Promoting Adoption Over Reunification
Simply stated, these are not matters of national security, wherein effectiveness often requires secrecy. Rather, they are social service issues that demand the full light of day in order to better ensure the integrity of the process. The fact that children are involved in the process should no longer be used as an excuse to protect these proceedings from meaningful public oversight.

Fourth, Cabinet officials have initiated several positive measures aimed at increasing oversight of field operations and bringing consistency and fairness to the processes discussed in this report, along with continuing to work to improve related operations.

Honesty and the Practice of Law

My idealism is showing again. I think lawyers should be honest. Honest with clients. Honest with one another. Most of all, honest with the court. Honesty means different things to different people. If asked, nearly everyone would say they are basically an honest person. Yet, this clearly is not so.

Let’s look at this on a ‘truthfulness continuum’. All lawyers spin the truth to some degree or another. All lawyers will present and highlight facts supportive of their client’s position. They will avoid admitting hurtful facts when possible and ethical. This is the ‘best possible light’ range. When hurtful facts must be admitted, they will present them in the least harmful way as long as that way is a reasonable inference one can derive from the facts. I wish this is where we all stopped on the truthfulness continuum.

However, many lawyers go farther down the continuum. The next area on that range is the ‘grain of truth’ area. Here, as long as there is a grain of truth to what the attorney is saying, they feel free to engage in creative license with the truth. For example - the opposing party smoked marijuahna two or three times in the last year while out and the children were home with a babysitter. This suddenly becomes - the opposing party is a full blown drug addict who is endangering their children.

Then we get down to the other end of the spectrum. I wish that only a few lawyers hang out down here but sometimes it seems awfully crowded. This is the ’say it enough times and it becomes true’ section. Here, the lawyer feels justified in engaging in wild speculation. As long as their client is willing to say something is possible, the lawyer will treat it as fact. For example - their client has some concerns that the opposing party might have left their child in the care of someone that could possibly mistreat that child, even though another adult was likely present. This becomes - the opposing party routinely leaves their child unsupervised with a known child molester.

The middle section, in my mind, is ethically questionable and personally distasteful. I do not practice even there and will tell prospective clients that up front. That last range of wild speculation, I believe, is unethical and immoral. I like to believe that judges will recognize the attorneys who practice in that range and no longer grant them credibility. Yes, I like to believe that. Those attorneys seem oblivious that they quickly get a reputation for those tactics among other lawyers even if the judges do not catch on and, in the long run, reduce their effectiveness because the other attorneys will not trust them enough to engage in negotiations.

It can be very disheartening when engaged in a legal contest with one of those wild speculation lawyers and see them winning. It seems human nature that if you hear something is true often enough, you will believe it - sometimes it is true and sometimes not. Marketing professionals entire professions are based on this concept. This kind of dishonesty is at the heart of what makes justice elusive. They are also the source of all the bad lawyer jokes and poor reputation of this honorable profession.