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Sunday, November 28, 2004

'Filing Mills' on ADA issues...


Over at Overlawyered.com there is an interesting post concerning American Disabilities Act litigation.

Here's the jist:
"By suing. we are in the driver's seat. ..."


I read this post on the ADA "filing mills" with interest as linked to by Overlawyered.com. There are many such organizations set up by the plaintiff bar, and most use skewed examples to tout their worth to the general public. Fred Shotz is no exception. I believe clarification is necessary relative to his primary example on why suing is the proper course of action.

Shotz (an ADA consultant for over a decade, and a plaintiff in a substantial number of ADA lawsuits) wrote:


A man in California sued a city for access violations. He didn't have an attorney; he did it pro se, which means "without an attorney." The city's attorney negotiated a settlement with the man.

After the settlement was signed and damages were paid, the man discovered that in the settlement agreement he signed, he waived his right to ever sue this city again -- for any ADA violations or violations of California law.

How could this have happened? He was simply out-maneuvered by a skilled lawyer. He got one thing fixed, and he received some damages -- but this city can now ignore him for the rest of his life.


As this is a California case, the California Fair Claims Practices Act applies. And, as a result this specific portion of the Act applies:


Policy Provision Disclosure Requirements

3. Prohibited Claims Handling Conduct

b. Generally Prohibited Acts

iv.
Requesting an unrepresented claimant to sign a release which is broader in scope than the subject of the claim for which payment is being made unless the effect of the release is both disclosed and fully explained to the claimant in writing, however, a waiver of the provisions of California Civil Code section 1542 (release includes claim not then known) is permitted if disclosed and explained;20


As you can see, the plaintiff has recourse if the release was not explained to him in full. The California Court will find in favor of the plaintiff on this issue if there is the least chance that a Defense Counsel might have taken advantage of his good nature. In addition, such an action could lead to a rather expensive Bad Faith claim against the Defense and their client(s).

Simply put, there is a better way to handle ADA issues...and it isn't to sue everything that moves. A better course of action would include instituting a pre-litigation process that keeps attorneys out of the mix. Keep in mind that Commercial Liability Coverage excludes these type claims on a number of levels (i.e. Purposeful violation of another party's right; Lack of an actual claim; Lack of an actual injury or property damage)...so the actual claim falls to the risk itself.

The money to defend or fix the alleged problem comes out of their pocket.
A smarter way of handling ADA challenges would be to set up non-profit organizations un-attached to the plaintiff's bar that would provide a "warning shot" to the risk prior to any suit being filed. The "warning shot" would include a valid evaluation of the violations by a qualified civil engineer with coordination of a qualified building inspector for that municipality. That way, there is confirmation of a violation by an expert and the entity that licenses the business. In other words, there is no wiggle room, and the business is made aware that they can, either, comply or receive the loss of their license/permit to do business in that municipality.

The plaintiff bar is an unnecessary participant in this process. They justify their participation by indicating that they donate to non-profits that pursue ADA enforcement. They claim that they are in the driver’s seat when they sue. Of course they are. However, the municipality would be in the driver’s seat without the inclusion of the cost for expert witnesses (since the building inspector is to be qualified to recognize violations of the current code). And, the building inspector’s salary is already worked into the budget of the municipality. Violations producing Statute imposed fines will accomodate additional staff.

In short, the offender can comply with the law or lose their ability to do business.

However, this shotgun suing process does nothing more than add an unnecessary party to the mix. The plaintiff's bar would have you believe that they are acting in the best interest of the plaintiff. The facts would indicate that they are acting in their own best interest by seeking the same result in a more expensive manner; A manner that provides them a piece of the, already, spoken for pie.

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