RSS Feed LinkedIn Instagram Twitter Facebook
FMG Law Blog Line

Posts Tagged ‘medical expenses’

Wrongful Death Versus Survival In California

Posted on: December 11th, 2018

By: Matthew Jones

There are many differences between a wrongful death action and a survival action. A wrongful death action may be filed by the personal representative of the decedent’s estate or the decedent’s surviving spouse/children. A survival action may be filed by the estate’s personal representative or the decedent’s successor-in-interest. The determination of whether to file one action versus the other depends on whether the decedent immediately died from the alleged injuries/incident. If he/she did, then a wrongful death action is the proper claim. If he/she did not, then a survival action is likely the proper claim.

When defending against a wrongful death or survival action, it is imperative to keep in mind the types of damages available to the plaintiffs. In a wrongful death action, the plaintiffs are entitled to compensation for loss of support, loss of services, funeral and burial expenses, loss of companionship, and sexual cohabitation. In a survival action, the plaintiffs are entitled to a much different set of damages, specifically, those damages that would have been available to decedent had he/she survived the alleged injuries/incident. These damages may include medical expenses and loss of earnings, to name a few. The plaintiffs essentially step into the shoes of the decedent and assert the claims he/she would have had.

Despite the various damages that are recoverable in a wrongful death action, punitive damages are only available in a survival action. It is important to identify if punitive damages are alleged in the Complaint and determine the type of claim being asserted: wrongful death versus survival. If punitive damages are alleged and it is a wrongful death action, it is necessary to move to strike the claim or move for summary adjudication on the issue.

If you have any questions or would like more information, please contact Matthew Jones at [email protected].

Eleventh Circuit Holds That Debt Collector Did Not Violate FDCPA Even Though It Misstated Name of Creditor In Collection Letter

Posted on: November 19th, 2018

By: Bill Buechner

The Eleventh Circuit very recently affirmed a district court’s ruling that a debt collector did not violate the Fair Debt Collection Practices Act even though the collection misstated the name of the creditor to whom the consumer owed the debt.

In Lait v. Medical Data Sys., 2018 U.S. App. LEXIS 31814 (11th Cir. Nov. 9, 2018) (per curiam), the plaintiff incurred medical expenses provided to him by Enterprise Medical Center. A debt collector sent the plaintiff a letter seeking to collect on the debt. The letter indicated that the debt collector was seeking to collect on the “accounts indicated below.” After two intervening paragraphs, the letter listed “Medical Center Enterprise” next to a service date, the plaintiff’s name, and an outstanding balance of $412. The letter did not expressly refer to Medical Center Enterprise as the plaintiff’s creditor.  Id. at *2.

The plaintiff alleged that the collection letter violated 15 U.S.C. § 1692g, which requires that debt collectors provide in writing certain information to a consumer in either the initial communication or within five days thereafter, including the name of the creditor to whom the debt is owed. The plaintiff did not contend that the different word order of the hospital in the letter caused him any confusion. Instead, the plaintiff asserted that the letter failed to “meaningfully convey” the name of the creditor to whom he owed the debt.

The Eleventh Circuit assumed, without deciding, that the plaintiff’s claim was governed by the least sophisticated consumer standard. Under this standard, the court presumes that the consumer “possess[es] a rudimentary amount of information about the world and a willingness to read a collection notice with some care.” Id. at *5 (citing cases).  Applying this standard, the Eleventh Circuit concluded that, because the plaintiff acknowledged that he had received medical treatment at a hospital called “Enterprise Medical Center,” the least sophisticated consumer “could be expected to connect the dots on a collection letter that lists the name ‘Medical Center Enterprise’ next to an outstanding balance.” Id. In other words, “[a] consumer who had been a patient at a hospital would surely understand the hospital to be the creditor when its name was listed next to the amount of the debt.” Id. at *5-6. Accordingly, the Eleventh Circuit held that the letter complied with § 1692g.

The Eleventh Circuit has applied the least sophisticated consumer standard to other sections of the FDCPA, including 15 U.S.C. §§ 1692e and 1692f.  Other circuits, including the Third, Sixth and Ninth Circuit have applied the least sophisticated consumer standard to claims brought pursuant to § 1692g as well. The Eleventh Circuit has suggested in at least one previous unpublished decision that it did not disagree with these other circuit decisions. The panel in Lait, however, suggested that concerns about obscuring information required to be disclosed under § 1692g could be addressed in other sections of the FDCPA. Lait, 2018 U.S. App. LEXIS 31814, at *4 n.2.

Thus, it remains an open question in the Eleventh Circuit as to whether the least sophisticated consumer standard applies to claims under § 1692g, or whether courts should simply consider whether the collection letter contains the information required by § 1692g without considering whether the least sophisticated consumer would understand it.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].