Disability Insurance Lawyer Oklahoma

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					                The newsletter of
             Feldman,                Franden,
              Woodard &                Farris
                   March 15, 2000

                                                                                The latest spin on the latest news

                                                                                   We are proud of . . .
                                                                 . . . our lawyers for their recent accomplishments . . . .
                                                                 Jody Nathan prevailed on a         Joe Farris and Paula Quillin
In Hartline v. Hartline, 2001  left without the minimum          summary judgment motion in         won on the appeal of a sum-
OK 15, the Oklahoma S       u- mandated coverage. Some of        a declaratory judgment, with       mary judgment they obtained
preme Court declared inva-     the facts recited are puzzling.   the Court holding there was no     for architects who were sued
lid the family exclusion       The court notes the husband       coverage under a health pro-       by a disappointed bidder in a
clause in an automobile pol-   got the insurance, and was        vider’s Commercial Transpor-       state project.
icy, at least as to the extent the only "named insured" on       tation Policy for an accident
of minimum statutory cover-    the insurance company's i -  n    involving a home health aide       After a successful appeal in a
age limits.                    ternal records. But it was        leaving a client’s home, using     products liability action,
                               undisputed wife was a named       her own personal vehicle to go     Tony Graham obtained a
Glinda Hartline brought an insured on the policy. Fur-           home for lunch.                    favorable settlement before
action against her husband, ther, the court notes the UM                                            trial.
James to recover for inju- coverage was waived by the            Thayla Bohn won post-
ries she sustained in an auto- husband alone.                    judgment motions after win- Jack Freeman and Thayla
mobile accident in which                                         ning summary judgment in a  Bohn received publication of
her husband was at fault. The Oklahoma statute, 36 OS            products liability action   a Court of Appeals opinion
After obtaining a $7,000 Sec 3636(F),(G)(3), was                 against a gun manufacturer; which is significant to coun-
judgment, she brought a amended after the Supreme                won summary judgment in a   selors, psychologists, and
postjudgment garnish-                   Court's decision in                                  other professionals who ren-
                                                                 lawsuit against an insurer aris-
ment proceeding against                 Plaster v. State Farm                                der opinions in child custody
                                                                 ing from the denial of disabil-
Mid-Century Insurance                   Mut. Auto. Ins. Co.,                                 disputes. The Court accepted
                                                                 ity insurance benefits; and also
Company for the pro-                    Inc., 1989 OK            won summary judgment in a   our argument that these pro-
ceeds of a liability insur-             167,791 P.2d 813                                     fessionals are immune from
                                                                 malpractice suit against a psy-
ance policy under which                 which held a hus-        chologist.                  liability for their work,
both she and James were band's rejection of UM was                                           whether court-appointed or
named insureds. The insurer not binding on a wife who         Kristin Fisher has been on an not. The effect of publica-
denied coverage.               was a named insured.           extended winning streak in the tion, granted previously in
                                                              workers’ compensation claims only a few cases, is to give
The Supreme Court held It is unclear whether the ex- appealed to the Oklahoma the Court’s holding preceden-
that an automobile liability cluded parties must have UM Court of Appeals. The victo- tial value in future cases.
policy exclusion, which op- coverage under the same pol- ries are too numerous to men-
erates to deny all coverage icy. The opinion indicates, tion in this abbreviated format.        Our subscribers write . . . .
to a named insured who is however, that any UM cover-
injured as a passenger in the age might suffice.                                             “Thanks for sending me your
insured vehicle, violates the                                      ANNOUNCEMENT              newsletter — I’ll waste no
legislative policy underlying For a copy of the full opinion,                                time reading it.” —CJK
Oklahoma's compulsory in- please call Jody Nathan at To all employees: The Low
surance law —but only inso- 918-583-7129 or email to Self Esteem Support Group “I can’t say too many good
far as the injured person is nathan@tulsalawyer.com.          will meet Thursday at 7 PM. things about IN BRIEF.” —
                                                              Please use the back door.      RKW

                                             EMPLOYMENT LAW UPDATES
                                                  By Paula J. Quillin, Attorney

                   Oklahoma                 ing an employee’s return from duty           firm and the client both will be respon-
                   Maintains                from a suspension follows the em-            sible for providing accommodations on
                   Employment-              ployee from one job to another and will      the job itself.
                   At-Will Status           persist through any break in service.
                                                                                         The guidelines obviously have an im-
On February 14, 2001, a Senate com-         The DOT has also enacted enhanced            pact on staffing firms and employers
mittee in the Oklahoma Legislature re-      training requirements for drug and alco-     who are attempting to fill a position for
fused to allow a bill which would ne-       hol testing personnel and has included a     a relatively short period of time and
gate Oklahoma’s employment-at-will          new public interest exclusion provision.     who may have neither the time nor the
status to proceed out of committee.         Although most of the new changes go          money to make significant accommoda-
The bill required that employers give       into effect on August 1, 2001, the split     tions for the brief period of employ-
employees 15 days notice prior to ter-      specimen provision was effective mid-        ment at issue. We will keep you a      d-
mination with some narrow exceptions.       January, 2001.                               vised of the implementation and appli-
The bill was narrowly defeated in com-                                                   cation of the guidelines to real life
mittee by a 9 to 7 vote. Given the          For a complete detail of the new rules,      situations.
closeness of the vote, Oklahoma can         ple ase contact Paula J. Quillin,
probably expect to see the matter raised    pquillin@tulsalawyer.com
again in the State Legislature. Until                                                    Police    in   Oakland,     TRUE
                                                                                         California spent two STORIES
then, Oklahoma remains an employ-
ment-at-will state.                                             ADA
                                                                                         hours attempt-
                                                                and Staffing Firms
                                                                                         ing to subdue a
                                                                                         g u n m a n
               Department of
                                                                                         who had barri-
               Transportation               The EEOC has promulgated guidance
                                                                                         caded himself
               New Rule                     regarding the duties of staffing firms
                                                                                         inside his home.
               On Drug and                  and their clients with regard to the
                                                                                         After firing ten
               Alcohol Testing              Americans With Disabilities Act and its
                                                                                         tear gas canis-
                                            applicability to contingent workers.
                                                                                         ters, officers discovered that the man
Employers who are governed by the           The guidelines state that both the staff-
                                                                                         was standing beside them, shouting,
Department of Transportation rules re-      ing firms and their clients can be con-
                                                                                         "Please come out and give yourself up"
garding drug and alcohol testing should     sidered employers under the ADA and
make note that several changes have         may be liable for the use of discrimina-
been made to the rule regarding drug        tory job standards.                          Last summer, down on Lake Isabella,
and alcohol testing of employees in                                                      located in the high desert, an hour east
safety-sensitive positions. The new         The guidelines hold that neither a staff-    of Bakersfield, California, some folks,
rule requires a medical review officer      ing firm nor its client may make dis-        new to boating, were having a problem.
who is a physician to review test results   ability-related inquiries or require         No matter how hard they tried, they
when a lab determines that a specimen       medical exams before making an e       m-    couldn't get their brand new 22-ft. Bay-
may have been adulterated or substi-        ployment offer.       Significantly, the     liner to perform. And it was very slug-
tuted. An employee must be given the        EEOC stated that a staffing firm’s           gish in almost every maneuver, no mat-
opportunity to obtain a split specimen      placement of an individual on its roster     ter how much power was applied. After
in order to submit his or her own inde-     of candidates eligible for future assign-    about an hour of trying to make it go,
pendent test. Employers are allowed to      ment is not considered an offer of em-       they putted over to a nearby marina,
temporarily remove employees from           ployment. Nevertheless, after an offer       thinking someone there could tell them
safety related tasks while the medical      has been made, neither the staffing firm     what was wrong. A thorough topside
review officer determines if there is a     nor its clients can inquire into disabili-   check revealed everything in perfect
legitimate medical reason for the posi-     ties or request a medical exam unless a      working order. The engine ran fine, the
tive lab result. In order to remove em-     medical exam and certain physical re-        out drive went up and down, the prop
ployees from safety-related tasks, the      quirements are made of all applicants        was the correct size and pitch. So, one of
employer must apply with the appropri-      for the same job and are job appropri-       the marina guys jumped in the water to
ate DOT operating administration for a      ate.                                         check underneath. He came up choking
waiver.                                                                                  on water, he was laughing so hard.
                                            The EEOC maintains that staffing firms       (REMEMBER, THIS IS TRUE...) Under
The DOT also clarified that periodic        are responsible for providing accommo-       the boat, still strapped securely in place,
testing over the first 12 months follow-    dations for job applicants, but that the     was the trailer.

                The HMO and its Oklahoma Origins                                                            IN BRIEF

We take health insurance for granted.          lationship with my grandmother,” says
Whether we get sick or not, it greatly alle-   Candice. “We still get calls from people         A FEW SHORT JOKES . . .
viates the worry that a sudden catastropy      who are writing about his work. He was
will bankrupt us. Where did it come            generous. He treated poor people for          Seven-year old Mary told her mom, "A
from? Right here in Oklahoma! Dr. Mi-          free and was well loved in Elk City.          boy in my class asked me to play doc-
chael Shadid pioneered cooperative medi-       They often couldn’t pay money, but they       tor."
cine and established the first HMO in          would give him vegetables.”
America in the 1920s.                                                                        "Oh, dear," her mother nervously
                                               Dr. Shadid’s daughter Bess wryly com-         sighed. "What happened, Honey?"
Dr. Shadid, from Beirut, Lebanon, emi-         mented, “His progressive thinking had
grated to America and established a prac-      its limits. Both of the boys in my family     "Not much. He made me wait 45 min-
tice in Elk City, Oklahoma. In the early       went to medical school. I wanted to go        utes and then double-billed the insur-
days, he was the quintessential country        to college, and he said no. Women             ance company."
doctor, driving a horse and buggy to make      weren’t supposed to go to college in the      ……
his home visits. He was instrumental in        1920s and 1930s.”                             I met a guy that had been through a
establishing the first cooperative hospital                                                  couple of divorces. He said he isn't go-
in America, in Elk City. He funded nu-         In 1931 the Elk City Community Hospi-         ing to bother again; he's just going to
merous      schola r-                                       tal was founded.       Dr.       find a woman he doesn't like and buy
ships for medical                                           Shadid's memberships in          her a house.
students.                                                   medical societies were re-
                                                            voked, and his license was
Dr. Shadid’s pio-                                           in jeopardy. Undeterred,         Looking all around at the shattered and
neering work was                                            he didn’t even slow down.        collapsed buildings, cracked streets and
prompted by the                                             He worked hard to estab-         broken water mains in his Southern
medical needs of                                            lish the Puget Sound and         California hometown, Jason shook his
the poor farmers in                                         Kaiser Permanente health         head and said, "The San Andreas
the area. The rea-                                          care plans.                      couldn't have done this!" but he had
son he started man-                                                                          always been generous to a fault.
aged care was that                                            “He was a liberal,” Dr.        ……
a large proportion                                            Shadid’s daughter Bess         A man was driving to the airport and he
of the patients who                                           admits. “Up until his death    saw a sign that read: "AIRPORT
were sick were at                                             in 1966, he was the Cru-       LEFT." So he turned around and drove
the lower end of                                              sading Doctor, and he          home.
the socio-economic spectrum. They              wrote a book by that name. He had one         ……
couldn’t afford to get health care, but        leg amputated late in life, but still trav-   How does it change many dyslexics to
could afford a farmer’s cooperative. He        eled all over the world in a wheel chair,     take a light bulb?
built on the model of a farmer’s coopera-      advocating socialized medicine. I took
tive where the farmers and lower income        him to the Oklahoma City airport and          ……
folks could get together, contribute a         put him on a plane to Russia. He went         The remarkable thing about my mother
small amount each year and get access to       alone, probably to make a speech. He          is that for thirty years she served us
health care. Against opposition by the         was always pushing his cause. There           nothing but leftovers. The original meal
county medical society, Shadid formed a        was a play about him in Dallas that ran       has never been found.
lay organization composed of leading           for a long, long time. People either          ……
farmers -- they sold shares at $50 each to     loved him or hated him — depending on
                                                                                 A hopeful suitor dropped into a com-
raise money for a new hospital and then        what interests they were trying to pro-
                                                                                 puter dating center and registered his
provided medical care to each share-           tect.”                            qualifications. He wanted someone who
holder at a discount rate.                                                       enjoyed water sports, liked company,
                                         “It surprises me where my grandfather favored formal attire, and was very
Dr. Shadid’s daughter Bess Campbell turns up,” says Candice. One day I even small. The computer operated fault-
lives in Tulsa. Bess’s daughter S. Can- found a very old postcard up for sale on lessly. It sent him a penguin.
dice Campbell, a counselor in private eBay that was a picture of his house —
practice in Tulsa, showed us some of the the house my mother grew up in! Now
books Dr. Shadid wrote. “He was a great what was that about?”                    TRUE STORY: A man spoke frantic-
social leader, but I think he could have                                         ally into the phone, "My wife is preg-
turned some of his good will more toward “The house is still there in Elk City,” nant and her contractions are only two
his own family. His children loved him, says Bess, who was born there in 1911. minutes apart!" "Is this her first child?"
but like many doctors he wasn’t around “I can’t imagine why anyone would the doctor asked. "No!" the man
much and I don’t think he had a good re- want a post card of it.”                shouted, "This is her husband!"

                                                                                                        IN BRIEF

                                                                                            7 ATTAINABLE DAILY
                                    Insurance Cases                                            AFFIRMATIONS
                                           of Interest                                  SUNDAY: I am at one with my duality.

                                                                                        MONDAY: I no longer need to punish,
BAD FAITH CASE DOES NOT                    LAWYER LAIBLE FOR FAILING                    deceive, or compromise myself, unless I
REQUIRE EXHAUSTION OF                      TO PROTECT SUBROGATION                       want to stay employed.
                                                                                        TUESDAY: I am grateful that I am not
Cynthia A. Walker was a dependent          An indemnification claim arose from an       as judgmental as all those censorious,
insured under the Oklahoma State &         on-the-job injury suffered by Villegas's     self-righteous people around me.
Education Employees Group Insur-           client, Perez. Pursuant to a worker's
ance Plan with coverage through            compensation policy with Perez's e   m-      WEDNESDAY: As I learn the innermost
BlueLincs HMO. Walker sued the             ployer, USF paid medical expenses and        secrets of people around me, they reward
appellees, Group Health Services,          made indemnity payments to Perez in          me in many ways to keep me quiet.
Inc. and GHS Health Maintenance            the total sum of $71,872.20. Villegas
Organization, Inc., d/b/a BlueLincs        later filed a third-party complaint on       THURSDAY: When someone hurts me,
HMO for breach of the implied cove-        behalf of Perez and his family. USF          I know that forgiveness is cheaper than a
nant of good faith and fair dealing in     notified Villegas of its subrogation         lawsuit, but not nearly as gratifying.
denying payment of medical ex-             rights and lien on any benefits which
penses. Walker sought compensatory         might have been recovered in the third-      FRIDAY: The first step is to say nice
and punitive damages. The insurer          party claim. That action was ultimately      things about myself. The second, to do
filed a motion to dismiss for lack of      settled at mediation for a total of          nice things for myself. The third, to find
subject matter jurisdiction because        $150,000.                                    someone to buy me nice things.
Walker had not exhausted the admin-
istrative procedures imposed by the        Villegas represented that he was pro-        SATURDAY: As I learn to trust the uni-
State and Education Employees              tecting USF’s lien and was obligated to      verse, I no longer need to carry a gun.
Group Insurance Act. The trial court       do so. USF sued, alleging that Villegas
dismissed and the Oklahoma Su-             destroyed, and effectively converted, its
preme Court reversed. The court            right to reimbursement for $36,263.65
held that: a state employee may sue        in indemnity benefits and $35,608.55 in
an HMO for bad faith breach of the         medical payments (a combined figure
insurance contract; and because the        of $71,872.20). As a result of the settle-
jurisdiction of the Grievance Panel is     ment awarding only $30,000 to Perez
limited to matters involving the a    l-   and USF's parent as opposed to the full
lowance and payments of claims, eli-       $150,000, USF was unable to recover
gibility for coverage and provision of     the total amount of benefits which it
services, claims for breach of good        had paid. The settlement also precluded
faith are not subject to administrative    USF's ability to receive a credit towards
exhaustion requirements. Therefore,        any future medical payments up to the
where the insured has received pay-        settlement total of $150,000.
ment for disputed medical expenses -
the statutory exhaustion requirements      The district court found clear evidence
are inapplicable to a bad faith suit.      that Villegas completely failed to prop-
                                           erly communicate with USF regarding
Walker v. Group Health Services,           settlement beforehand, that he falsely          Got pressing legal problems?
Inc., 2000 OK 2                            portrayed himself as a representative of           Let us iron them out!
                                           USF, and that as a result, he was able to
                                           settle the claim in a manner adverse to
         QUOTEWORTHY                       USF's interests.                               Workers Comp Seminar
Men are from earth. Women are from         United States Fire Insurance Co. v.          We have reserved the Cowboy Hall of
earth. Deal with it.                       Villegas, No. 00-40255 (5th Cir.             Fame again this year for Wednesday,
                                           2/12/2001)                                   September 26, 2001. Please mark your
Time flies like an arrow; fruit flies                                                   calendars. Contact Vic Seagle or Jay
like a banana. (Groucho Marx)                                                           McAtee for details and to sign up!

                                                                                                                 IN BRIEF
                             SPOTLIGHT ON
                          PAUL BOUDREAUX                                                      HOW MANY DOGS DOES IT TAKE TO
                                                                                                  CHANGE A LIGHT BULB?
                                The staff of     PAUL: John Woodard warned me
                                IN     BRIEF     about you people, and I didn’t listen.
                                found lawyer                                                  Golden Retriever: The sun is shining, the
                                Paul Boun-       IN BRIEF: Paul, what do you like             day is young, we've got our whole lives
                                dreaux in his    most about the practice of law?              ahead of us, and you're inside worrying
                                office on a                                                   about a stupid burned-out light bulb?
                                chilly Febru-    PAUL: I enjoy almost everything
                                ary afternoon    about it. In particular, I like jury tri-    Border Collie: Just one. And I'll replace
                                When       we    als. I like the difficult cases, because I   any wiring that's not up to code.
                                arrived, Paul    like a challenge.
                                glanced up,                                                   Dachshund: I can't reach the stupid
                                reminding us     IN BRIEF: We have been wondering             lamp!
a little of a deer caught in the headlights of   why you chose this firm, out of all the
an oncoming 18-wheeler.                          law firms in Tulsa where you could           Poodle: I'll just whisper in the Border
                                                 have practiced.                              Collie's ear and he'll do it. By the time he
IN BRIEF: You seem a little bit apprehen-                                                     finishes rewiring the house, my nails will
sive, Paul.                                      PAUL: This is one of the most colle-         be dry.
                                                 gial places I have ever seen. Everyone
PAUL: I saw the last interview you did.          gets along, and the work is a team ef-       Rottweiler: Go Ahead! Make me!
                                                 fort. Everyone has a role that is im-
IN BRIEF: Let us assure you that journal-        portant to the final work product.           Shi-tzu: Puh-leeze, dah-ling. Let the ser-
istic integrity is our forte.                                                                 vants. . . .
                                                                          IN    BRIEF:
PAUL: What I hear is that you                                             Meaning you         Yorkie: Oh, me, me!!! Pleeeeeeze let me
plan to twist everything I say,                                           can always get      change the light bulb! Can I? Can I?
write a bunch of drivel about me,                                         someone      to     Huh? Huh? Can I?
and then put it in the newsletter                                         drive you to
next to a column containing dog                                           the courthouse      Malamute: Let the Border collie do it..
jokes.                                                                    when it’s rain-     You can feed me while he's busy.
IN BRIEF: We would never do                                                                   Cocker Spaniel: Why change it? I can
that.                                                                     PAUL: Well,         still water the carpet in the dark.
                                                                          or borrow their
PAUL: Have a cigar. I trust you.                                          umbrella.           Doberman Pinscher: While it's dark, I'm
No harm done.                                                                                 going to sleep on the couch.
                                                                           IN BRIEF: Joe
IN BRIEF: We can’t be bribed. Rumor              Farris is still looking for his umbrella,    Mastiff: Mastiffs are NOT afraid of the
has it that you left the office early on Sat-    by the way.                                  dark.
urday to go to the horse races.
                                                                          PAUL: I told        Hound Dog: ZZZZZZZZZZZZZZZZZ
PAUL: I thought this piece was                                            Joe yesterday,
going to be about the recent string                                       I don’t have        Chihuahua: Yo quiero Taco Bulb.
of courtroom victories I have                                             his umbrella.
racked up.                                                                                    Irish Wolfhound: Can somebody else do
                                                                          IN    BRIEF:        it? I've got a hangover.
IN BRIEF: How many of these                                               You left it in
cigars can we take?                                                       the   Judge’s       Pointer: I see it, there it is, right there...
PAUL: I think you’ve got enough                                           again, didn’t       Greyhound: It isn't moving. Who cares?
there. Have you seen my new                                               you?
fountain pen? It’s an antique                                                                 Australian Shepherd: Put all the light
Parker Duofold.                                                           PAUL: Have          bulbs in a little circle...
                                                                          another cigar.
IN BRIEF: Is that why you have                                                                Schnauzer: Light bulb? Light bulb? That
blue ink all over your mustache?                                                              thing I just ate was a light bulb?

 In Brief
 Windy March Issue
 Feldman, Franden,
 Woodard & Farris
 525 S. Main,
 Suite 1000
 Tulsa OK 74103


March 15, 2000                   918-583-7129

                              Jody Nathan
                          As the head of the Legal Re-
                          search Section at Feldman, Fran-
                          den, I’m up early every morning
                          reading the latest decisions from
                          every court in the entire world. I
                          work late, proofreading the
                          briefs the other lawyers have
                          written. I have to take out inap-
                          propriate comments about plain-
tiff’s counsel and delete all the footnotes. Lots of red
ink — lots of energy! I start my day off with a bowl of
shredded IN BRIEF. We usually have a few extra copies
each quarter. I just run ‘em through the shredder and
take ‘em home. The kids love it with sugar and milk. It
helps me stay lean and mean! And adds needed fiber to
my diet. Try it and you’ll see what I mean — Start Your
Day With IN BRIEF!!


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