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July 2009 Newsletter |
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 | Post-Claim Underwriting: California's Dirty Secret Exposed
By LOURDES DeARMAS, ESQ. |
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Insurance Companies in California are in an extremely competitive field. They are constantly competing for business. One way to attract consumers is to simplify the process by streamlining the application process. They are approving consumers with only the information contained in the application. Insurance Companies are weighing their duty to investigate a consumer's background before issuing coverage against the time, resources, and money involved. Insurance Companies are resorting to Post-Claim Underwriting. The results have been disastrous. California has been rocked by a wave of cases highlighting the calamitous effect of Post-Claim Underwriting.
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| Identifying the Prevailing Party in Civil Rights Cases
By MICHAEL FORMAN, ESQ. |
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Congress passed 42 U.S.C. § 1983 and other civil rights statutes to give citizens the power to sue the government when it violated their constitutional or federal statutory rights. Since many victims of constitutional violations cannot afford to bring civil suits, Congress created fee-shifting statutes to encourage litigants to go to court to enforce their civil rights. Under the Civil Rights Attorney's Fees Award Act of 1976 (42 U.S.C. § 1988), courts have the power to award reasonable attorney's fees to the prevailing party in any action to enforce a provision of various civil rights statutes, including Section 1983. However, fee awards are not guaranteed because district courts have considerable discretion in deciding the key issues of prevailing party, entitlement to fees, and the size of the attorney's fee award. Consequently, attorneys should become familiar with the definition of "prevailing party" in their jurisdiction in order to determine if a final decision in their favor is required for a successful fee application.
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| Definition of "Retaliatory Action" Is Broader Than We Think
By JEAN K. LIAO, ESQ. |
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Regardless of how minute or trivial an employer feels that an employee's discriminatory charge may be, employers are better off avoiding taking retaliatory action against the employee. Although employers are conscious of the many federal and state employment law rules that penalize companies from taking actions against their employees on the basis of race, sex, color, national origin, religion, age or disability, a more important issue that they may overlook is the extent that these laws also prohibit retaliation against employees who oppose unlawful discrimination or participate in an employment discrimination proceeding. These anti-retaliation laws were created to protect the employee regardless of whether the underlying allegation of discrimination is meritless and in some cases, regardless of whether the employee formally filed a charge against the employer.
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