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Washington State Accuses Comcast of Engaging in Deceptive Practices

Posted Wednesday, August 3, 2016 by Pivotal Law Group

Bob FergusonA lawsuit alleging more than 1.8 million violations of the Washington Consumer Protection Act was filed against Comcast yesterday.

Washington Attorney General Bob Ferguson filed the $100 million suit saying that the cable giant engaged in deceptive practices for their own financial gain. The subject of the suit involves Comcast’s Service Protection Plan, repair fees, and credit checks.

The service plan, costing $4.99 a month, is marketed as covering repair costs for wiring issues related to Xfinity TV, voice, and internet. However, the state claims that in many cases, Comcast would either charge the customer for the repairs or simply not repair the issue at all. The state also alleges that Comcast would charge improper repair fees when the company guarantees they don’t charge for service visits resulting from Comcast equipment or network problems.

The initial investigation began with the credit check issue. Comcast customers are required to pay a deposit for any Comcast equipment. This can be waived if customers agree to a credit check and have a high credit score. The investigation revealed that in many cases, Comcast ran a credit check even when people chose to pay the deposit fee and in other cases, customers were charged the deposit fee despite Comcast running a check and finding they had a high enough credit score.

Ferguson’s office has been working with Comcast for more than a year on the investigation, he said, adding that Comcast did make some “improvements” to the plan over the past month.

Ultimately, he was not satisfied with the changes Comcast had made. “Nothing changes the fact that they were deceptive in how they advertised this plan,” Ferguson said.

Comcast’s service-protection plan covers “standard maintenance” of Xfinity TV, internet and voice services for a monthly fee, according to Comcast’s website.

The exact figure the state is seeking in the suit has not been determined, but is estimated at about $100 million. The state wants reimbursement for the half-million Washington customers who paid about $73 million in subscription fees for the protection plan in the past five years.

Click here for a link to the full article, or see the link below:

http://www.seattletimes.com/business/technology/washington-state-to-sue-comcast-over-pattern-of-deceptive-practices/

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Court of Appeals: When Spouses Divorce, Testamentary Gifts to Former Relatives Are Still Valid

Posted Wednesday, July 27, 2016 by Michael A. Larson and Brian Edwards

Railroad TracksWhen people get married, the hope is it will last forever. And when the time comes to make an estate plan, couples often make those decisions together. A common estate plan has both wills look something like this: If I die first, everything goes to my spouse. But if they died before me, then my estate should be split among a list of people. Those people could include children, but also some combination of your relatives and your spouse’s relatives – brothers, sisters, nieces, nephews, and the like. That way, the surviving spouse keeps everything for the rest of their lifetime, and then passes it along to both sides of the family.

But what happens when marriage isn’t forever? What happens when people’s lives, previously intertwined, diverge and take different paths?

With regard to spouses, the answer is clear. In Washington, when spouses divorce, any provisions in their wills “in favor of or granting any interest or power” to the former spouse are automatically revoked, unless the will provides otherwise. The former spouse is treated as having “predeceased,” or died before, the testator. This means the former spouse cannot act as the personal representative of the estate, or inherit under the will (also known as receiving “testamentary gifts”).

And what about the relatives of the former spouse? Are those testamentary gifts also revoked? On May 3, 2016, the Washington State Court of Appeals, Division II, answered that question: No.

In the case of In re the Estate of Dana Mower, No. 46778-0-II (May 3, 2016), Mr. Mower’s will directed that his entire estate go to his then-spouse, Christine Mower. In the event Ms. Mower did not survive him, Mr. Mower directed that half of the estate go to his siblings, while the other half go to Eric and Theresa Schuler – brother and sister-in-law to Ms. Mower.

On November 13, 2012, Mr. and Ms. Mower divorced. Sixteen days later, Mr. Mower unexpectedly died. He had not revised his will or executed a new will before his death. Because of the divorce, Ms. Mower could not inherit. The personal representative of the estate argued that as the brother and sister-in-law of Ms. Mower, neither could Mr. or Ms. Schuler.

The Court of Appeals disagreed. It noted that the statute in question revokes testamentary gifts in favor of former spouses, but does not mention gifts to the relatives of former spouses. By contrast, the revised Uniform Probate Code (UPC) recommends revoking testamentary gifts to the relatives of former spouses upon divorce, and provides model language explicitly doing so. The Court reasoned that, had the Washington legislature intended to revoke testamentary gifts to former relatives, it would have used language resembling that of the revised UPC.

Even if it could be said that testamentary gifts to former relatives benefit or are “in favor of” former spouses, the statute provides the manner of dealing with divorce – treating the former spouse as if they predeceased the other. Applying that rule here, Ms. Mower was treated as predeceasing Mr. Mower, meaning half of the estate passed to Mr. and Ms. Schuler.

This case demonstrates how important it is to make your testamentary wishes clear in your will by hoping for the best but planning for the worst. That way you can feel secure that your estate will pass to the people you choose, no matter what the future may hold. And should your wishes change, this case also demonstrates the importance of revising your will promptly.

If you have any questions about estate or divorce matters, please feel free to contact our office. We have considerable experience in both Trust & Estate Law and Family Law, and can assist you with your needs.

Photo credit: Mark Fischer, used under the Creative Commons license

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NFL Accused of Pushing Painkillers on Former Players

Posted Wednesday, July 20, 2016 by Christopher L. Thayer

NFLThe NFL is currently facing serious allegations regarding the distribution of painkillers to NFL players. A group of more than 1,500 former NFL players and their families have filed a class action lawsuit against the NFL, alleging that all 32 NFL teams and their training staffs dispensed powerful painkillers to the players while also lying to the players about the serious health risks associated with the drugs.

The case was filed in May 2015 by 13 plaintiffs, including Dallas Cowboys Hall of Famer Mel Renfro and the widow of Minnesota Vikings player Chuck Evans, who died of heart failure in 2008.

This isn’t the first time the NFL has faced litigation from former players. A federal appeals court recently approved a settlement brought by 20,000 ex-players who contested the league was negligent in handling concussions.

The current suit is expected to garner a lot of attention with high profile former head coaches such as Don Shula (Miami Dolphins), Wayne Fontes (Detroit Lions) and Mike Holmgren (Green Bay Packers, Seattle Seahawks) being said to have threatened players with termination if they refused to take painkillers in order to play through the pain. The lawsuit is now set to enter into the discovery phase.

A federal judge ruled Friday that the NFL’s collective bargaining agreement does not prevent a group of former football players from seeking relief in U.S. District Court over injuries suffered from years of football-related drug use.

U.S. District Judge William Alsup denied the league’s motion to dismiss the class-action lawsuit. Alsup is the same judge who dismissed a similar suit in December 2014, saying then that the players’ claims were preempted by federal labor law and that the CBA between owners and players calls for other avenues for adjudication.

“It’s a historic decision to have a class-action case such as this overcome the NFL’s tried and true preemption argument,” Baltimore attorney Steven Silverman said. “They rely on the fact that there’s a collective bargaining agreement under labor law to avoid having to face the music in class-action suits by former players and to answer to allegations of wrong-doing.”

Click here for a link to the full article, or see the link below:

https://www.washingtonpost.com/sports/redskins/judge-allows-former-nfl-players-suit-over-drug-use-to-proceed/2016/07/01/64bb4d3a-3fcc-11e6-a66f-aa6c1883b6b1_story.html

Photo credit: AJ Guel, used under the Creative Commons license

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Caselaw Update – Interpreting Endorsements to Insurance Policies

Posted Wednesday, July 13, 2016 by Christopher L. Thayer

InsuranceWhat many people do not realize, sometimes until after it is too late, is that insurance policies are just contracts, and what is covered, what is not covered, and what benefits you may be entitled to are limited to the express language of your policy. Most of us do not sit down and read through our insurance policies, and if we did, most people would not understand all the jargon unfortunately. In a recent case before the Washington Supreme Court, Lui v. Essex Insurance Company, the Court had the chance to revisit issues relating to the interpretation of language in an insurance policy, and specifically how to interpret subsequent endorsements to a policy that changes coverage terms in the underlying policy.

The Luis owned a commercial building that sustained water damage after a pipe burst while the building was vacant. The Luis’ insurance policy for the building limited coverage for water damage in two ways based on vacancy: (1) coverage was suspended if the building remained vacant for 60 consecutive days and (2) effective at the beginning of any vacancy, there was no coverage for certain specified losses, including water damage. At the time of the water leak, the property had not been vacant for 60 consecutive days.

The Luis submitted a claim to its insurer, Essex. Essex initially paid out almost $300,000, but after learning the property was vacant at the time of the loss, refused to pay out any more funds (though it did not seek reimbursement of amounts previously paid). Essex relied on a provision in a policy endorsement which limited the coverage provided when the property was vacant, and did not include coverage for water damage. The Luis submitted claims for an additional $760,000 in damages, but Essex declined any further payments. The Luis argued that the vacancy provisions in the underlying policy did not become effective until the property had been vacant for 60 consecutive days. The Supreme Court analyzed the claims as follows:

Insurance policies are construed as contracts. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 665, 15 P.3d 115 (2000). When we interpret an insurance policy, we consider the insurance policy as a whole, giving the policy ’”a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.”’ Key Tronic Corp. v. Aetna (CIGNA) Fire Underwriters Ins. Co., 124 Wn.2d 618, 627, 881 P.2d 201 (1994). Where possible, we harmonize clauses that seem to conflict in order to give effect to all of the contract’s provisions. Realm, Inc. v. City of Olympia, 168 Wn. App. 1, 5, 277 P.3d 679 (2012).

The Supreme Court ruled that the endorsement superseded the original terms of the underlying insurance policy. Insurance policies may be “amplified, extended, or modified by any…endorsement… attached to and made a part of the policy.” RCW 48.18.520. “An endorsement becomes a part of the insurance contract even if the result is a new and different contract. As endorsements are later in time, they generally control over inconstant terms or conditions in a policy.” Transcon. Ins. Co. v. Wash. Pub. Util. Dists.’ Util. Sys., 111 Wn.2d 452, 462, 760 P.2d 337 (1988). By its plain language, the endorsement changed the terms of the underlying policy. In italicized letters, the endorsement to the Luis’ Essex policy asked the insured to “[p]lease read carefully as this changes coverage under your policy.” Because the endorsement changed the terms of the underlying insurance policy, the terms of the endorsement control.

The Luis case demonstrates the importance of reading your own insurance policies, and paying attention to the periodic endorsements that you may receive in the mail. The language used by insurance companies is there for a reason, and it is incumbent on the insured to read and understand their own insurance policies.

Photo credit: Pictures of Money, used under the Creative Commons license

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Car Crash vs. Car Accident: Lawmakers Move Away From Labeling Crashes as Accidents

Posted Wednesday, July 6, 2016 by Pivotal Law Group

Car crashMost car crashes stem from risky driver behavior like drinking, distracted driving, speeding and other dangerous activities. Only 6 percent of crashes are caused by vehicle malfunctions, weather, and other factors. The question remains then, why has society insisted on labeling car crashes as accidents?

Historically, auto industry officials and insurance companies used the term in an attempt to absolve themselves of responsibility from faulty automobiles. However, the term is now seen by many as a way to lessen the responsibility of the driver.

A growing number of groups including safety advocates, federal officials, and state and local leaders across the country are campaigning to stop labeling crashes as mere accidents. Studies from the National Safety Council estimate that deadly crashes are on the rise. In 2015 alone, 38,000 people were killed by car crashes. Changing the language from “accident” to “crash” is intended to make people less apathetic toward the issue.

On Jan. 1, the state of Nevada enacted a law, passed almost unanimously in the Legislature, to change “accident” to “crash” in dozens of instances where the word is mentioned in state laws, like those covering police and insurance reports.

New York City adopted a policy in 2014 to reduce fatalities that states the city “must no longer regard traffic crashes as mere ‘accidents,’ ” and other cities, including San Francisco, have taken the same step.

At least 28 state departments of transportation have moved away from the term “accident” when referring to roadway incidents, according to Jeff Larason, director of highway safety for Massachusetts. The traffic safety administration changed its own policy in 1997, but has recently become more vocal about the issue.

Click here for a link to the full article, or see the link below:

http://www.nytimes.com/2016/05/23/science/its-no-accident-advocates-want-to-speak-of-car-crashes-instead.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news&_r=1

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