On Feb 16th, 2012, Hot Coffee, the documentary feature film Variety magazine calls an “Eye-opening indictment of the way big business spins the media”, will be screened for the first time in Vancouver at the Ridge Theatre.
The screening is sponsored by Cross Border Law, US Lawyers in Vancouver, with all proceeds from ticket sales going to the StreetoHome Foundation. Tickets are by donation with a suggested minimum of $5.
The film starts at 7pm and will be followed by a panel discussion of legal experts discussing the topics covered in the film and how they relate to Canadian residents and the law.
Cross Border Law to Sponsor Hot Coffee, The Movie at the Ridge Theater on February 16th at 7:00pm.
It looks like we got their attention. Forbes just came out with their official big business response to “Hot Coffee, The Movie”, suggesting that it only tells half the story. What a joke! For twenty years, the media portrayed that story falsely, and now that someone has successfully revealed the truth, Forbes attempts to discredit the messenger-of course, that terrible scourge of our legal justice system, the trial lawyer.
For years we’ve linked the behind-the-scenes story of the Stella Liebeck case to our website, to allow folks to see what the Center for State Courts had to say about it. Every trial lawyer who’s ever selected a jury has heard it before-”Our courts are clogged with frivolous lawsuits-take, for example, that case where the woman spilled hot coffee on herself and then had the gall to sue McDonalds, and she won millions! Now everyone is looking for a lottery win!”.
The real story behind that “McDonalds case” is actually more complimentary than critical of our civil justice system, celebrating a private citizen’s ability to take on a large corporation and achieve justice. Most shockingly, the very reason for the jury’s award-that McDonalds had ignored 700 previous customer complaints, some of which involved similar third degree burns-was cited critically by Forbes as representing a negligible percentage of complaints when compared to the billions of McDonalds customers. Hello?!? Forbes, like other big companies, seems to ignore the individual consumer’s rights. Fortunately, jurors are ordinary citizens too, and are slowly coming to notice the injustices promoted by big business propaganda.
At Cross Border Law, we’ve taken on a fair number of Davids v. Goliaths, and that’s why we’re proud to sponsor a showing of this movie. Entrance by donation to the Streetohome Foundation (Street to Home), helping homeless people in Vancouver find housing and dignity. We hope to see you there.
Here’s a recent review of the film: http://motherjones.com/kevin-drum/2011/07/truth-about-stella-liebeck
Cross Border Law to Sponsor Hot Coffee, The Movie at the Ridge Theater on February 16th at 7:00pm.
It looks like we got their attention. Forbes just came out with their official big business response to “Hot Coffee, The Movie”, suggesting that it only tells half the story. What a joke! For twenty years, the media portrayed that story falsely, and now that someone has successfully revealed the truth, Forbes attempts to discredit the messenger-of course, that terrible scourge of our legal justice system, the trial lawyer.
For years we’ve linked the behind-the-scenes story of the Stella Liebeck case to our website, to allow folks to see what the Center for State Courts had to say about it. Every trial lawyer who’s ever selected a jury has heard it before –”Our courts are clogged with frivolous lawsuits — take, for example, that case where the woman spilled hot coffee on herself and then had the gall to sue McDonalds, and she won millions! Now everyone is looking for a lottery win!”.
The real story behind that “McDonalds case” is actually more complimentary than critical of our civil justice system, celebrating a private citizen’s ability to take on a large corporation and achieve justice. Most shockingly, the very reason for the jury’s award — that McDonalds had ignored 700 previous customer complaints, some of which involved similar third degree burns — was cited critically by Forbes as representing a negligible percentage of complaints when compared to the billions of McDonalds customers. Hello?!? Forbes, like other big companies, seems to ignore the individual consumer’s rights. Fortunately, jurors are ordinary citizens too, and are slowly coming to notice the injustices promoted by big business propaganda.
At Cross Border Law, we’ve taken on a fair number of Davids v. Goliaths, and that’s why we’re proud to sponsor a showing of this movie. Entrance by donation to the Streetohome Foundation (Street to Home), helping homeless people in Vancouver find housing and dignity. We hope to see you there.
By Mark Belanger Published in the Lawyers Weekly
Focus on Cross-Border Law Section
May 13 2011 issue
[Yuri Arcurs / Dreamstime.com]
If you have ever wondered whether your client will need a traditional work visa to enter the U.S., a B-1 visa may be an option?—?but you will need to decipher the fine line often walked by U.S. immigration counsel in advising their clients on this issue.
The B-1 visa is the most used and the least understood visa; if you do not focus your practice on U.S. immigration, you should always seek a second opinion from a lawyer who does.
The purpose behind the B-1 visa is to foster international trade relationships between the U.S. and foreign nations. With this in mind, the B-1 visa is therefore not a “work” visa per se, but geared toward business travellers who are fulfilling the mandate of building on trade relationships and international commerce between the U.S. and foreign nations.
The two leading decisions that set forth the definitive test on whether a foreign national qualifies as a business visitor are Matter of Hira, 11 I&N Dec 824 (BIA 1966) and Matter of Neill, 15 I&N Dec. 331 (BIA 1975). In Matter of Hira, a foreign national travelled to the U.S. on behalf of a Hong Kong manufacturer of custom-made men’s clothing items. This particular foreign national would accept payment for the order, take measurements and send back the order to the overseas employer for handling.
The foreign national received payment for his services, but the payment was not from a U.S. source and he demonstrated that he intended to return home to his country of origin after his services had been rendered. He was found to be eligible for B-1 entry by the Board of Immigration Appeals.
Contrast this result with that of Matter of Neil, where a professional engineer for a Canadian firm regularly solicited business in the U.S. and rendered consulting services to the firm’s U.S. customers. The Board of Immigration Appeals held the foreign national’s activities went beyond activities incidental to international trade and so the foreign national was not permitted to enter the U.S. under B-1 status.
These contrasting decisions suggest the following conclusions regarding the qualification of B-1 business travellers:
• The foreign national’s stay in the U.S. must be temporary in nature (i.e. only as long as needed to fulfill his or her business travel purpose);
• The foreign national must have the intent to return home after the purpose of the B-1 visit is completed;
• The principal place of business for the foreign national must be abroad;
• The foreign national must not receive any direct remuneration from a U.S. source; and
• The foreign national’s employment and purpose of his or her U.S. visit must be a necessary incident of international trade or commerce.
If the purpose of your client’s visit meets these basic criteria, he or she may be an eligible B-1 visitor to the U.S.
The B-1 visa may be used in lieu of other visa categories, such as an H-1B (specialized knowledge) or H-3 (trainee). This may remove the need to make an expensive or time consuming work visa application. Given the right circumstances, this can be very helpful in moving personnel into the U.S. on an expedited basis.
Depending on your client’s nationality, he or she may have different options on how to apply for the B-1 visa. For instance, Canadians are visa exempt under this category thanks to the North American Free Trade Agreement. All Canadian applicants can therefore apply for this status at the port of entry they decide to use to enter the U.S. and the U.S. Customs and Border Protection Agency will adjudicate these applications at the time of intended entry.
Certain foreign nationals may be sponsored by the Visa Waiver Program (VWP), which also allows those individuals to avoid submitting a traditional consular application for the B-1 visa. However, as is implicit in the name of the program, certain options afforded a regular B-1 visa holder are “waived” when entering under the visa waiver program, which may not suit your client’s needs. The other route to take in applying for a B-1 visa is through the U.S. Consulate where your client resides.
The B-1 visa may reduce the time and expense of applying for a traditional work visa — which will make for happy clients and in return, happy lawyers.
Mark Belanger is a member of the British Columbia and Washington State Bar associations, in addition to the Washington State Association for Justice (WSAJ), Canadian Bar Association (CBA) and American Immigration Lawyers’ Association (AILA). He is associate counsel at Cross Border Law, practising in both Vancouver and Washington State.
A review of historical Washington judgments and settlements reveals that some Vancouver and lower mainland residents hire Seattle personal injury attorneys for their cross border claims. While some of the Seattle lawyers were probably retained from recommendations by local British Columbia counsel, the ease of internet “searchability” allows a prospective plaintiff to find a lawyer in any location. The search engine Google actually tracks the words used to search for lawyers, and remarkably, “Seattle personal injury attorney” is used by British Columbians to find lawyers suited to their cases throughout Washington.
Unlike British Columbia, where a personal injury lawsuit can be commenced in any registry throughout the province (most likely the one convenient to the lawyer), Washington law requires that the lawsuit be started in either (1) the county where the conduct causing the injury occurred, or (2) the county where the person causing the injury resides. Therefore, when searching on the internet for a Washington lawyer, one could simply add the county of injury or county of defendant’s residence to the list of search terms to find a lawyer close to the courthouse where the action has to be commenced.
Of course, the reason that “Seattle” is being used as a search term has more to do with the assumed expertise of counsel than to the lawyer’s proximity to the courthouse. But big city does not necessarily mean good lawyer. There are good personal injury lawyers in Seattle and not so good personal injury lawyers in Seattle.
When a BC resident is searching for a Washington lawyer to handle his or her personal injury or wrongful death claim, these are the factors which should influence that decision:
Does the lawyer spend the majority of his or her time dealing with personal injury claims?
Does the lawyer have an established track record of significant settlements and judgments?
Is the lawyer familiar with the subtle nuances and procedures unique to Canadians in Washington courts?
Can the lawyer deal with both ICBC and the American insurance company in resolving the claim?
Is he or she qualified as a personal injury lawyer in both British Columbia and Washington State?
Likewise, a proper search would include such terms as “Canadian, American, Cross Border, Personal Injury, Wrongful Death, ICBC and Washington”.
The next time you assist an American citizen involved in a motor vehicle accident that occurred in British Columbia, you should note that PIP liens are not recoverable in British Columbia.
Say you manage to settle a client’s BC mva claim for $25,000 all inclusive, with a subrogation lien of $5,000 by your client’s PIP insurer; the insurer is not entitled to recover the PIP benefits they paid to your client.
In British Columbia, the deemed release provisions contained in s. 83 of the Insurance (Vehicle) Act state that an out-of province insurer may not recover through the courts in British Columbia accident benefits it has paid.
Out-of-province insurers can have no greater rights than the person who obtained those benefits, and the insured is deemed to have released the claim to the extent of those benefits.
See Schaffer v. McPherson (1997), I C.C.L.I (3d) 88 (B.C.S.C.), and Matilda v. MacLeod (1997), I.C.C.L.I (3d) 94 (B.C.S.C.), both affirmed on appeal 2000 BCCA 1. A deemed release applies whenever the accident benefits paid by the out-of-province insurer are provided under a contract or plan of automobile insurance and are similar to the benefits paid under the appropriate Regulation in British Columbia. See Gurniak (Guardian ad litem of) v. Nordquist, 2003 SCC 59.
So the next time you settle a claim that happened in British Columbia, you can save your client from surrendering thousands of dollars of their own money and protect yourself from a potential malpractice claim.
Ten-Minute Course
Avoiding Legal Malpractice Claims in Canadian P.I. Cases (or Can You find the Missing $865,000?)
By Greg Samuels*
The Fact Pattern:
John Smith is a Washington resident, insured by GEICO, who was catastrophically injured as a passenger in a motor vehicle accident in Vancouver, B.C. The Defendant, Jane Doe, also a Washington resident and determined to be 100% responsible for the accident, is insured by Farmers’ with a minimum $25,000 third party liability policy. Mr. Smith has PIP coverage of $10,000 and UIM of $100,000 with GEICO. His future medical expenses alone will exceed $2 million. You have determined that Ms. Doe is insolvent, and you are now in a position to settle Mr. Smith’s case with the various insurance companies. How much do you settle for? Disregarding exchange rates, if you said $135,000, do yourself a favor and buy more malpractice insurance.
The Proper Analysis:
The Insurance Corporation of British Columbia (“ICBC”) provides minimum third party liability coverage to every B.C. driver of $200,000. ICBC also grants $150,000 in no-fault medical and rehabilitation benefits (“Part 7 Benefits”), as well as $1 million in UIM or “UMP” coverage, subject to certain deductions. Owing to a certain Power of Attorney and Undertaking (“PAU”) which Farmers’ filed with the Canadian Council of Insurance Regulators (“CCIR”) on September 26, 2002, Farmers’ is obligated to increase the minimum limits offered to its policyholders for all classes and kinds of coverage, whenever one of its policyholders is involved in an accident in British Columbia. These classes and kinds of coverage include tort, PIP and UIM.
In other words, you can disregard Mr. Smith’s and Ms. Doe’s limits of coverage and look instead to ICBC’s minimum limits. You should settle Mr. Smith’s tort claim with Farmers’ for $200,000 plus an additional $150,000 for PIP or “Part 7 benefits”. You should then settle Mr. Smith’s UIM claim with Farmers’ (and possibly GEICO) for $650,000 ($1 million less amounts received in tort and Part 7, as well as any other applicable deductions). Continue reading →
In every civil case, the plaintiff has the burden of proving the basic elements of negligence—duty, breach, causation and damages—and such proof is required by “a preponderance of the evidence”. This is defined as “more probable than not” or “more likely true than not true” or “on a 51% basis”. The reality is that a plaintiff must be prepared to show proof on a much more significant basis than 51%, as a juror is unlikely to award significant damages without substantial proof of injury and loss.
However, there are some cases that impose a different burden on a plaintiff—notably Products Liability cases in the US are governed by Strict Liability. In such cases, a plaintiff who was injured by a defective product must prove that the product was defective. Once the product is shown to have been manufactured defectively, the defendant manufacturer is liable, period. If, for example, a family is driving down the road and one of the tires on the vehicle suffers a sudden loss of air or “blowout”. The vehicle flips, passengers are ejected and all suffer serious personal injuries and losses. At trial, the injured parties must prove that the blown out tire was manufactured defectively, and once proven, their burden stops there. The manufacturer of the defective tire is then liable for any damages that are proven.
In BC, a plaintiff’s burden of proof for a defective products case is much more onerous. There a plaintiff must prove that the defendant manufacturer was negligent in the way it designed or manufactured the product. This is a significant burden and good reason why there are very few products cases that proceed to judgment in British Columbia.
This blog entry is a continuation of my previous post comparing personal injury law in Canada and the US. The types of damages recoverable are largely governed by the laws of individual states and provinces. While the lawyers at Cross Border Law are licensed in Washington State and British Columbia, the legal principles expressed in this article are generally the same throughout the two individual countries.
WRONGFUL DEATH DAMAGES
In British Columbia, the estate of a person killed by the negligent conduct of another, whether by a careless driver or negligent surgeon, is limited to recovering survivorship benefits for the decedent’s beneficiaries (in addition to modest funeral and testamentary expenses)—in other words, the spouse and children can recover any amounts that the decedent would have contributed to the household for living expenses. The estate would be unable to recover damages for the decedent’s pain and suffering or lifetime earnings.
In Washington, a decedent’s estate can recover for many different elements of damages, including pain and suffering before death, fear of imminent death and lifetime earnings less consumption. Immediate family members present at the time and place of injury can also recover emotional damages under the tort of “outrage”. Unlike in BC, where the economic damages are limited to the decedent’s contributions to the household, the Washington decedent’s estate can recover the entire amount that the decedent would have earned over his lifetime less what he would have consumed, reduced to present day value in a lump sum. For an average, middle-aged worker with a college degree, this is easily a seven figure claim. Continue reading →
In both the US and Canada, personal injury law, a subset of the law of Negligence, is based on the English system of Torts. While much of the procedural law governing personal injury litigation, including the types of damages recoverable, is controlled by the laws of individual states and provinces, the two countries share much of the same substantive law.
Notwithstanding there are some cases governed by strict liability (which will be discussed in a future blog), the law of Negligence requires a showing that a defendant owed a DUTY to someone to behave in a particular way, that the defendant BREACHED that duty by failing to act in that particular way, that such breach CAUSED someone to be injured, and that the person thereby incurred DAMAGES, either to his person or to his property. These four elements must be proven in every civil lawsuit involving personal injury, whether the lawsuit proceeds in the US or Canada.
For example, Driver Alan is proceeding down Broadway and crosses Pine Street on a green light. As he drives through the intersection, Driver Barbara, proceeding in the opposite direction down Broadway, suddenly turns left in front of him, causing Alan to smash his vehicle into her, and causing Alan himself to lurch forward, striking his head on the windshield in front of him. Alan suffers a brain injury and is no longer able to work as an accountant.
Whether on Broadway and Pine in Vancouver, BC or the same intersection in Seattle, WA, the elements which Alan must prove are the same—that Barbara owed other drivers a DUTY to heed the rules of the road, including yielding the right of way to a “favored” (US) or “dominant” (CDN) driver; that Barbara BREACHED that duty by turning her vehicle directly into the path of the oncoming driver; that, as a direct and foreseeable consequence of her action, Barbara CAUSED Alan to be injured and his vehicle damaged; and that Alan suffered DAMAGES, in this case including loss of enjoyment of life, lost wages, medical expenses and property damage.
I’m a lawyer facing a forum non conveniens challenge from a bicycle manufacturer based in Connecticut, about a Canadian resident who was injured during a Seattle bike race, when the frame of her bike fell apart and she lost control, severely injuring herself. The company is saying that the case should be tried in Vancouver, BC, where she lives and where all of her doctors and therapists are. Of course, the liability witnesses are all located in Seattle and Connecticut.
ANSWER:
Thank you for posing your question on our blogsite. In the interest of responding to your inquiry in a way that will benefit all of our readers, I’d like to direct you to an article, Extending American Products Liability Jurisprudence to Canadian Plaintiffs – Lessons from a Seven Year Battle, we published in 2004 which extensively discusses the issues you’re facing, regarding Choice of Law and the doctrine of “forum non conveniens”. The article tracks the procedural history of our case, Tepei v. Uniroyal, et al, which resulted in a $9.1 million verdict in Lewis County, Washington. More importantly for your purposes, the article discusses how the Michelin Tire Company applied (unsuccessfully) to have our case removed to British Columbia on the very same basis that your bike manufacturer is alleging.
A second article, Wrongful Death and Survival Actions in Washington State: Comparing Benefits from a Canadian Perspective, also addresses Choice of Law and fnc issues in our discussion of the Brooks v. Cytodyne case, which arose from an accident which occurred just north of the border, but involved a defective product (health food supplement causing psychosis) manufactured in New York and sold in Kirkland, WA.
On a selfish note, I have twice been called as an expert in such cases, to assist the court with a comparison of the laws on both sides of the border, and that may be appropriate in this case. I will contact you directly.
