Within thirty days after certain qualifying events, the employer must notify its health plan administrator of the event. A qualified beneficiary must notify the plan administrator of a qualifying event within 60 days after divorce or legal separation. Within fourteen days, the administrator must alert the employee and family members, in person or by first class mail, of their right to elect COBRA. The only exceptions, if the health plan allows them, are: (1) the time limit for both notifications may be extended, and (2) it may be left up to plan administrators to determine whether an employee quit or reduced work hours, or whether a qualifying event occurred.
Beneficiaries have sixty days to decide whether to buy COBRA coverage. This period starts from the date that eligibility notification is sent by the plan administrator, or the date that the beneficiary lost the health insurance, whichever comes later. The COBRA coverage will be retroactive to the date that insurance benefits were lost.
A beneficiary may initially decide not to buy coverage, waving his or her right to it. However, beneficiaries may change their minds during the election period. COBRA coverage would then start on the date the waiver was revoked.
If a beneficiary moves, relocating out of the COBRA plan’s coverage area, the beneficiary will simply lose the coverage. The employer is not required to offer a plan in the new area.
Unfortunately, an employer does not pay for any part of COBRA premiums. Therefore, a beneficiary must pay the full amount of the group insurance’s monthly premiums plus an administrative fee of up to two percent. Cost can be a major deterrent to taking advantage of COBRA, since many privately held health policies cost less than group health policies.
The main reason for paying the high premiums is that some people have “pre-existing conditions”-medical problems that existed before buying a policy. Many insurers will not cover them, or will exclude the condition from coverage. Therefore, paying the premiums for COBRA coverage may be the only way that a beneficiary can continue certain needed health care when a qualifying event happens. The Health Insurance Portability and Accountability Act (HIPAA) guarantees that people who have continuous health coverage can’t be denied insurance even if they have pre-existing conditions. Therefore, using COBRA at least long enough to get other insurance would ensure HIPAA protection. If a beneficiary’s coverage lapses completely, causing a gap in insurance, he or she would completely lose the benefits of HIPAA.
The first COBRA payment may be a big one, because it covers the entire period retroactive to the qualifying event. Under the notification scheme, this could easily be seventy-five days, or even more, plus the next month’s coverage-at least three months of premiums all at once! A beneficiary must also keep payment dates in mind, since neither the employer nor the insurer must send premium notices.
Qualified beneficiaries must be offered coverage identical to that available to similarly situated beneficiaries who are not receiving COBRA coverage under the plan (generally, the same coverage that the qualified beneficiary had immediately before qualifying for continuation coverage). A change in the benefits under the plan for the active employees will also apply to qualified beneficiaries. Qualified beneficiaries must be allowed to make the same choices given to non-COBRA beneficiaries under the plan, such as during periods of open enrollment by the plan.
COBRA eligibility may last as long as eighteen months, depending on the circumstances. Coverage may end for any of these reasons: on the last day of the maximum coverage period, when it lapses for nonpayment, the employer stops offering any group health plan, the beneficiary obtains coverage through another employer group health plan that does not limit or exclude coverage for the beneficiary’s pre-existing condition, or the beneficiary becomes entitled to Medicare benefits.
Three types of people, known as “beneficiaries,” are protected by COBRA: employees or former employees, their spouses, and their dependent children. The beneficiaries must be covered under an employer health plan. In order to trigger COBRA coverage, one of several “qualifying events” must occur. These include employment termination, reduction in work hours, death, employee becoming entitled to Medicare coverage, divorce, legal separation, and a child losing dependent status.
COBRA is available to employees in the private sector, in state and local government, and working as independent contractors. However, employees of the federal government, the District of Columbia, some church-related organization, and firms employing less than twenty people are exempt. Some states have adopted similar laws covering exempt employers.
COBRA is a federal law, the Consolidated Omnibus Budget Reconciliation Act. Under COBRA, employees, their spouses, and their dependent children usually can’t lose their employer health insurance coverage when a worker loses a job, dies, divorces, or experiences certain other life changes. Instead, these individuals may continue an employer-provided health plan for up to eighteen months, as long as they personally pay the premiums.
As long as the vehicle had not been substantially changed from the condition in which it was originally sold, your claim will most likely not be affected by any minor alterations to the car.
A lemon law protects the purchaser of a new or almost-new car from the risk that the car is defective. Under a lemon law, you may return a new car that was leased or sold with a manufacturer’s warranty that cannot be repaired in a reasonable number of attempts or at all. Most lemon laws also apply to used cars that are still under full warranty and that meet the mileage and time requirements.
The vehicle’s size, design, and safety features (including seat belts, airbags, and crumple zones) all affect its crashworthiness.
The doctrine of crashworthiness centers around the enhancement of injuries caused by a motor vehicle defect. The issue becomes whether the defect increased the injuries, and fault of a person injured does not prevent recovery on a crashworthiness action. The fault issue may arise when the court or jury weighs the comparative fault of the individual causing the accident with the fault of the manufacturer, so that a reduction in the amount of damages you are entitled to may result.
Crashworthiness is the ability of a vehicle to prevent injuries to the occupants in the event of a collision.
Products liability law is based on the responsibility of a manufacturer or other provider of goods to compensate users of the goods for injuries caused by defective or dangerous products. The basic idea underlying products liability law is that the companies providing the products are usually in the best position to prevent defective products from entering the marketplace, so if they fail to do so, they should be held accountable. The law in this area has evolved from the days of “caveat emptor” (let the buyer beware) to strict liability, in which manufacturers are responsible for injuries caused by their defective or unreasonably dangerous products even if they were not negligent.
In a San Antonio products liability action, the injured person, or plaintiff, must prove that there was a design or manufacturing defect in the product, or that the manufacturer did not adequately warn consumers about the product’s possible dangers; that the product caused the injuries; and that he or she was using the product in the way it was intended to be used, or that the manufacturer should have anticipated that the product would be “misused” in the way that it was.
Manufacturing defects are usually easier to prove than design defects. If a particular consumer’s gas barbecue grill explodes when first lit, for example, it is pretty clear that that grill was not manufactured as the designer intended it to be. A design-defect case, on the other hand, could arise if many or all grills of a manufacturer’s particular model posed a threat of explosion. Proving a design defect involves passing judgment on technical choices and usually requires expert testimony. In a design-defect case, the product may have been manufactured as it was intended to be, but the design was inadequately planned in such a way as to pose unreasonable hazards to consumers.
Manufacturers must warn consumers of a product’s potential dangers and instruct product users on any precautions they must take. Warnings must be conspicuous enough to grab the attention of a reasonable person, and they must clearly explain the nature and seriousness of the possible risks.
Proving causation in a products liability case can be complicated. The plaintiff must establish that the product was defective when it left the hands of the defendant and that the defect was the cause of the accident that led to the injuries. If the injuries could have arisen from several potential causes, the plaintiff usually must establish that the product defect had a substantial role in bringing about the injuries.
Possible legal theories that can be argued in a products liability case include negligence (lack of reasonable care in the manufacture or sale of the product or in warning about the product), breach of warranty (failure to fulfill the terms of a promise regarding the product), misrepresentation (giving consumers a false sense of security about a product’s safety), and strict tort liability (the product’s defect, although not the fault of the defendant, rendered the product unreasonably dangerous and the defendant is therefore responsible). Although there is no limit to the list of products that could form the basis of a products liability suit, some of the more common product categories include:
Alcoholic beverages. Alcoholic beverage claims are similar in many respects to claims involving adulterated beverages in general, but some aspects of these cases are specific to alcohol. Some states, for example, have specific statutes that impose liability on sellers of adulterated alcoholic beverages for injuries to the consumer and his or her family and property resulting from the use of the beverage.
Apparel. Products liability cases based on defects in apparel often relate to flammability, the presence of irritants in the fabric, defective construction, concealed foreign objects, or the slipperiness of footwear. All kinds of apparel can be involved, from standard shirts and pants to Halloween costumes and hard hats.
Asbestos. Personal injuries, deaths, and property damage have resulted from exposure to asbestos products, and many products liability suits have been brought to compensate the victims of that exposure. Plaintiffs have based their claims on strict liability, design defect, failure to warn, and civil conspiracy theories, among others.
Chemicals & cosmetics. Household chemicals and personal-care cosmetics can be the subjects of products liability lawsuits if they are defective and cause injuries. The plaintiffs in these cases must prove that the manufacturer or seller knew or should have known about the dangerous defects in their products.
Firearms. Although many victims of criminal or accidental shootings have attempted to prove that the guns used were defective and that the sellers or manufacturers were liable for their damages, courts have been reluctant to embrace that argument. One exception to holding these defendants liable exists with regard to “Saturday night specials,” which are notoriously dangerous and known to be used in criminal activities.
Food & agricultural products. All types of food and beverages, as well as agricultural products like crop care products and animal foods, can also lead to products liability lawsuits if they are defective and cause injuries. In many cases, if the plaintiffs can show that the defendants violated applicable laws, such as sanitary guidelines or pesticide limits, they will be able to prove that the defendants were negligent.
Machinery & tools. Machinery and tools can often lead to injuries, and when those injuries result from a product defect or a failure to provide adequate warnings, the manufacturer or seller may be liable. Defendants in these cases even have a duty to guard against misuse of their products, if they could have reasonably foreseen that such misuse would occur.
Medical products & devices. The line between products liability cases involving medical products and medical malpractice cases is sometimes blurry. Lawyers experienced in these areas can advise both plaintiffs and defendants on which law applies.
Motor vehicle defects. Motor vehicle manufacturers have a duty to use reasonable care in designing their products to ensure the safety of drivers, passengers, and even bystanders. Plaintiffs may have been contributorily negligent, however, and thus receive lower or no damages, if they failed to use their seat belts or child restraints, or were careless in some other way, such as by speeding or driving while intoxicated.
Pharmaceutical products. Drug manufacturers must comply with Food and Drug Administration (FDA) guidelines for the manufacture, marketing, and sale of their products. Compliance with FDA standards will not, however, insulate a defendant from liability if its product otherwise proves to be defective. Drug manufacturers have a duty to warn about possible side effects of a drug. Often, a “learned intermediary,” such as a doctor or pharmacist, will be charged with the duty of passing those warnings on the patient. If the drug manufacturer advertises its product directly to the general public, however, the manufacturer may still have a duty to warn the public directly about the risks of taking the drug.
Recreational products. Recreational products that can be the basis of a products liability suit run the gamut from board games to amusement park attractions. As with all other products, manufacturers and sellers have the duties to use care in ensuring the safety of their products and to warn about potential hazards.
Tobacco. Tobacco products have been the subject of recent litigation in which the tobacco companies have been ordered to pay very large damage amounts for costs incurred as a result of smoking-related diseases. Although there is mounting evidence that tobacco companies may have known about their products’ harmful effects and kept that knowledge hidden, younger plaintiffs will have a harder time alleging that they were affected by that failure to warn, since the adverse consequences of tobacco use have been public knowledge for quite some time now.
Sellers and manufacturers have argued that the shift in legal standards from caveat emptor (let the buyer beware) to strict liability makes them vulnerable to even the most suspect claims, and they have taken this concern to their state legislatures and the United States Congress. As a result, some states have passed laws that help shield sellers and manufacturers from liability or limit their liability in certain cases.
One type of reform law permits manufacturers to defend themselves by proving that their products, when manufactured, met generally accepted safety standards. This state-of-the-art defense relieves manufacturers from the almost impossible standard of making a perfect product. When this defense is applied, an injured consumer cannot establish liability by arguing that the product would have been safer if the manufacturer had incorporated safety features that were developed after the product was made.
Businesses have also lobbied for the establishment of maximum amounts that injured consumers can be awarded as punitive damages. Some states have responded by capping these awards. In 1996, however, President Clinton vetoed a bill that would have limited punitive damages to $250,000 or twice the amount of the economic and noneconomic damages, whichever was greater. The President based his decision on his belief that the damage caps would deprive families of the ability to fully recover for injuries caused by defective products.
Consumer advocates, too, have opposed products liability reform laws because they allow manufacturers to avoid liability. The advocates argue that these laws discourage innovation and the setting of higher safety standards. On the other hand, the sellers and manufacturers may argue, the proliferation of products liability law suits costs every consumer money, because the costs of all products have to be increased to cover the expenses of litigation. There are persuasive arguments on both sides of this reform movement, which will undoubtedly continue to be waged for many years to come.
Since the 1970s, groups of plaintiffs have banded together to file consolidated lawsuits against the manufacturers of certain products. These cases are often referred to as class-action suits. By joining together, plaintiffs can achieve a balance of power with major manufacturers, which may bring about an earlier, a fairer, and a more efficient resolution of their claims.
The makers of silicone breast implants, contraceptive devices like the Dalkon Shield, asbestos products, and tobacco products, to name just a few, have all encountered this type of litigation. In many states, one judge is appointed to handle all cases involving claims against a particular manufacturer. This approach spares the defendants from separately defending many individual claims, but even this method can prove costly because the defendants may be forced to pay significant damage awards. Nonetheless, class-action suits are usually a better method of resolving disputes when potential litigants are many and they are scattered throughout the country.
In other cases, there is only one plaintiff but multiple defendants. This situation arises when the plaintiff is unable at the outset of a case to identify which particular defendant is responsible for his or her injuries. Multiple defendants have been named in cases involving pregnancy drugs, asbestos, and other products. Once the lawsuit is initiated, the defendants may be able to get dismissed from the case if they can prove that they are free from liability.
Firearms are a unique type of product in that their very purpose is to inflict harm, and if they failed to do so they would be considered defective. Although victims of accidental and criminal shootings may be searching for someone to compensate them for their losses, they are unlikely to achieve that goal by bringing a products liability action.
Recently, however, cities have been bringing suit against firearm manufacturers, arguing that gun makers are at least partly responsible for the costs of gun-related violence in major metropolitan areas. If these suits gain acceptance, suits by individual victims could also gain ground.
A different scenario is presented when a gun dealer sells a firearm to someone in violation of any applicable screening or waiting-period procedures. If that conduct ultimately leads to injury, the dealer may face liability, but it would not be on products liability grounds.
Seller or manufacturer liability is more likely in accidental shooting cases, such as when a safety mechanism fails to engage and the gun accidentally discharges. Incidents involving gun-related violence rarely involve such unintentional conduct, however, and the firearms that cause the injuries are performing exactly as intended by their design and manufacture.
Although the courts may be willing to entertain various new theories of liability in gun-related injury cases, they have demonstrated some reluctance to apply products liability law when intentional, criminal conduct is involved. More likely sources of liability in these cases are gun owners and dealers who fail to keep their weapons out of the hands of criminals or inexperienced users.
Plaintiffs in products liability lawsuits are usually able to recover all foreseeable damages. In actions based on contract, like some breach-of-warranty cases, some courts may limit the recovery of consequential damages to those that were within the contemplation of the parties at the time they entered into the contract. In other words, in a non-contract case, the plaintiff may be able to recover for any damages that flow from the accident causing the injury, but in a breach-of-warranty case the damages may be much more limited. If a car malfunctions due to a defect and crashes through the plate glass window of a convenience store, the warranty claim would cover the cost of repairs to the car, but a tort claim by the convenience store owner could cover the costs of repairing the business and the lost income for the period of time the store had to be closed.
In order to be recoverable under any theory, damages must be foreseeable. Foreseeable damages generally include economic losses, such as those for repairs to damaged property, medical bills, and lost wages. Recoverable noneconomic damages include awards for pain and suffering, emotional distress, and punitive or exemplary damages. Although some states have placed limits on the amount of noneconomic damages recoverable in products liability cases, these limits have in some instances been declared unconstitutional.
Punitive damages are intended not to compensate the victim for losses but to punish the defendant’s conduct. They are usually not allowed in breach-of-contract (warranty) cases. Although punitive damage awards get a lot of media attention, they are in fact quite rare and are more common in business litigation. The amount of punitive damages is usually based on the wealth of the defendant and the reprehensibility of its conduct. Some states require that a portion of the punitive damages awarded be paid to the state. Whereas compensatory damages are not taxable to the plaintiff, the amount of punitive damages that he or she receives is subject to federal income tax.
A manufacturer has the duty to make its products as safe as possible. When it cannot eliminate all risks, it must warn users and buyers of the dangers that exist. If it fails to provide adequate warnings, the person injured because of that failure may have a products liability claim based on failure to warn.
Warnings must be provided for any dangers likely to arise when the product is being used normally or in a way that could reasonably be anticipated, even it if is not a purpose for which the product was sold. A consumer who clearly misuses a product, however, cannot recover under a failure-to-warn theory or any other products liability theory. Also, warnings are usually not required for a product’s very obvious dangers.
Certain products, like prescription drugs, present unavoidable dangers. The duty to warn consumers about unavoidable dangers presents special problems. Manufacturers must provide warnings about possible side effects of such drugs, including allergic reactions, but there may be no duty where unusually susceptible consumers are concerned.
The manufacturer’s duty to warn continues even after the product is sold. As new information becomes available, such as through consumer complaints or scientific testing, the manufacturer or seller must update its warnings to purchasers, either through direct contact or, if that is not possible, through mass media publication.
A failure-to-warn claim can be in the nature of a negligence or a strict liability claim, depending on the facts of the particular case and the law of the state in which the claim is made.
Warranties are express or implied representations of fact that the law will enforce against the person who made them. Products liability law is concerned with three types of warranties relating to a product’s quality or fitness for use: express warranties, the implied warranty of merchantability, and the implied warranty of fitness for a particular purpose. These warranties are part of the Uniform Commercial Code (UCC), which every state has adopted.
An express warranty is created in one of three ways: through an affirmation of fact about the goods made by the supplier of the goods to the purchaser, which becomes a part of the basis of the bargain; through a description of the goods that becomes a part of the basis of the bargain; or through a sample or model that is made part of the basis of the bargain. An express warranty can be words spoken during sale negotiations, or it may be written into the sales contract or on tags attached to the product or a sample. The express warranty may have been part of an earlier purchase of the same product, or it may arise from product publicity. Mere sales “fluff,” however, such as “This is the greatest product you’ll ever buy,” does not create an express warranty.
Implied warranties are created and imposed by law and they accompany the transfer of title to goods unless they are expressly and clearly limited or excluded by the contract. The UCC states that contractual limitations on liability for personal injuries, however, are unconscionable and therefore will not be enforced.
The implied warranty of merchantability requires that products and their containers meet certain minimum quality standards, primarily that they be fit for the ordinary purposes for which they are sold. This warranty includes a reasonable standard of safety. The implied warranty of fitness for a particular purpose imposes similar requirements when the seller knows or has reason to know of the particular purpose for which the goods are required. If the seller recommends a particular product to meet the buyer’s specific needs, it warrants that the product is fit for those purposes.
An action for the breach of one of these warranties is like a strict liability claim, in that no negligence or other fault needs to be shown. There are some limitations, however. For instance, the seller must receive prompt notice of the breach as a condition to imposing liability, and the buyer must have relied on the warranty. When personal injury rather than property damage is involved, the courts are less likely to strictly enforce these defenses.
In a products liability negligence claim, the plaintiff must prove that the defendant did not exercise the proper degree of care when manufacturing or otherwise providing the product to the consumer. Everyone in the chain of distribution must exercise reasonable care, including the designer, the manufacturer, and the seller. The duty is owed to anyone who is likely to be injured by the product if it is defective, including the initial purchaser, his or her family members, bystanders, and persons who lease the product or hold it for the purchaser.
The duty of care includes the duty to make adequate inspections during product manufacture, the duty to use proper packaging, and the duty to issue adequate instructions and warnings. If any of these duties is breached and someone is injured, the consumer or other injured parties can bring a claim based on negligence.
In a strict liability case, on the other hand, the plaintiff need not prove any violation of the standard of care. Under this theory, the defendant is responsible for any defects in its products that threaten the safety of a consumer’s person or property, even if it exercised care in handling the product and even if the plaintiff had no direct dealings with the defendant, such as when the consumer bought the product from someone other than the defendant. Strict liability applies when the defendant is engaged in the business of selling the product that caused the injury, and the product is expected to and does reach the consumer without a substantial change in the condition in which it was sold.
The plaintiff in a products liability case must prove that the product was defective when it left the defendant’s hands and that the defect proximately caused the injury. A defect has been said to be a proximate cause of an injury if the injury was a direct, natural, or probable result of the defect’s existence. The issue of causation in a products liability case can be complicated, especially if the defect in the product involved was an indirect or remote cause, or only one of a number of potential causes. The determination of whether the defendant’s negligence or breach of warranty proximately caused the plaintiff’s injuries is very much dependent on the facts of the particular case.
When the evidence indicates that the injury could have resulted from a number of causes, the question becomes whether the cause for which the defendant is responsible was a substantial factor in bringing about the injury. For instance, if the plaintiff was burned when she removed the glass pot from a drip coffee maker to pour a cup of coffee and the pot separated from the handle, a defect in the way the handle was attached to the pot could be one cause, but the fact that the plaintiff had previously dropped the pot on the floor and had heated it on the stove top, contrary to the manufacturer’s instructions, would also have to be considered.
As noted in the example given above, the plaintiff’s misuse of a product can affect the proximate-cause analysis. Likewise, if the plaintiff has altered a product, that alteration, rather than a product defect, may be deemed the proximate cause of the plaintiff’s injuries. If the defendant should have anticipated that its product could be misused or altered in the way that it was, however, and could have guarded or warned against that possibility, it may still be liable for the plaintiff’s damages.
In a Texas products liability case, the plaintiff usually must prove that the product was defective. A defect is an imperfection that renders a product unsafe for its intended or reasonably foreseeable uses. There are three general kinds of defects: design defects, manufacturing defects, and warning defects.
Design defects exist when a whole class of products is inadequately planned, such that it poses unreasonable risks to consumers. A car manufacturer’s design of a vehicle with the fuel tank positioned so that it explodes in low-speed collisions can be classified as defective. When the design is defective, even products perfectly manufactured are defective. A production or manufacturing defect, on the other hand, arises when a sound design plan is not followed and the product is improperly manufactured.
Sometimes, something other than the product itself is defective. For instance, caustic chemicals should be packaged in appropriate containers to avoid leakage. If they are not, a products liability suit could arise. Improper labeling, instructions, or warnings on a product can also make the product defective. Dangerous products must carry warning labels that explain their proper use, the circumstances that are likely to cause harm, and what steps should be taken in an emergency involving the product. The Food and Drug Administration sets the minimum labeling standards that manufacturers must follow. Proper labeling requirements also apply to claims made in sales materials, product displays, and advertising. If these requirements are not met and a consumer is injured, a products liability suit can enable the consumer to recover the resulting damages.