forum attys

[steve s]

Could use some help from attys or others on how fish owners can protect
themselves and thier fish from products thst do not work correctly.
Examples: heaters, filters
Lots of us on this forum have lost fish to heater problems, sometimes
because we did something wrong in operating them or did not follow
the MFG instructions ect. But in most cases the heaters just stopped working
or started to work incorrectly.
Lots of fish have been FRIED by malfunctioning heaters that were new or still
nearly new. Most of us check our tanks and catch the malfunction before
it kills the fish, but we know it can and does have lasting effects on them.
Some of us change our heaters every year or two in the hope this
will prevent the problem. Then the new heater fails!!
Sometimes we are unable to check water temps because we are out of town
or just away from home too long.
The heater MFG warrenty does not cover lost or hurt fish, shipping
charges and in most cases even charge us for thier poor workmanship.
Most states abd cities have small claim courts where you are able
to file a claim without a lawyer or a lot of expense. These claims can
be $500. or more according to where you live.
WE know the MFG has worded the warrenty to cover dead fish, shocks
and about everything else, But Many times the local court will not side
with the big out of state FISH KILLERS, but will rule for the little customer.

Very few MFGS will spend the time or $$ to show up in court or hire a local atty. This can sometimes help you win a judgement. If The MFG does
not pay the judgement than you can place a lean on thier assits and even
force the sale of these assits. Some atty can give us a more clear
picture of this.

If enough claims , in enough diff. areas are filed these MFG will Make
a better product, or the ones who are the worst will drop out of this
market.
Anyway, I have said enough for most of you to respond to.
One last thing, I am not after $500. But I do want these companies
to make better products,run more quility controls and care about the
hobby.
Please give me your thoughts.

Thanks,
Steve

[babyjess210]

Steve

You have made some very good points and options for us. I feel that if everyone files a claim and wins, we will be paying maybe $100.00-$150.00 for a heater in the future. The buck just get pass along and consumer like us are at the end of the line. The heater company will have to hire extra help to go to court, court fees and more staff to file the paper work for all these lawsuits, which will increase the cost.



I am not an attorney, but in the automotive and cellular phone business. Car manufactures do not reimburse consumer for lost wages or if you miss a basketball game due to your car breaking down even if it's under warranty. Cellular Phone Company will not reimburse you for all the business calls you miss if your phone stops working when they are also under warranty. The solution is to have two cars, two cell phones and two heaters.



It's funny I read this post because I had a visitherm heater that was only four months old and had a cracked glass with water inside. I call Marineland and no questions asked, no receipt needed and didn't need to send the old one back. I just received my brand new heater after a week of my call. Very happy with the way they handle this warranty claim. The rep told me lifetime warranty so I will get a new one end of story.

Just my thoughts
Kenny

[The Discus Shop]

The sky-rocketing cost of health insurance and medical service fees are good examples of what can happen when an industry is faced with too much litigious claims. Often times it is simply cheaper to settle outside the court system than to hire attorneys to defend a case. Once this is repeated over and over again, the price for the service/item is dramatically inflated like Kenny said in order to cover insurance premiums/settlement fees... in the end consumers are the ones that will pay for all this.

I say instead of suing, write to companies and hobbyist magazines so that the quality of the product is scrutinized and made public. This will generate competition among the manufacturers and as a result more attention will be paid to quality and prices might even come down.

[lauris]

I am an attorney. The issue with small claims court is that you would not be able to get jurisdiction over a foreign corporation--foreign being from another state or country. The disclaimers on the warranties are pretty much iron-clad and would be enforced by even a small claims court, assuming you could get personal service (a sheriff handing a summons directly to a person of appropriate authority). If you could get a judgment by ambushing a company in small claims court, it would be short work to appeal to a district court to enforce the disclaimer and possibly tax costs against you. Just my free advice for the day, and worth every penny.

As for the health insurance premiums, costs, etc., there is no bigger fallacy than that they are driven up by litigation costs. That is a bit of paid for public opinion that the AMA and the insurance/business industry have been creating for years.

[steve s]

Fish friends,
I was not tryinying to have everyone sue the heater MFGs. I voted for Pres. Bush.
I just want the heater MFGs to produce a better heater, or make the current
ones work more often. They can do this by more testing,upgrading parts,having better trained emp. ect. If that means a 10% price increase most of us would gladly pay it.
The some of companies do replace the heater, but not your time shipping or lost fish.
This forum and others can help. we have lots of members, we support LFS,
we have lots of power if we use it.

Maybe this is not as large a problem as I think ,but I read and hear time and time again stories about bad heaters and dead fish.

Thanks,
Steve

[discus4life]

I am an attorney. The issue with small claims court is that you would not be able to get jurisdiction over a foreign corporation--foreign being from another state or country. The disclaimers on the warranties are pretty much iron-clad and would be enforced by even a small claims court, assuming you could get personal service (a sheriff handing a summons directly to a person of appropriate authority). If you could get a judgment by ambushing a company in small claims court, it would be short work to appeal to a district court to enforce the disclaimer and possibly tax costs against you. Just my free advice for the day, and worth every penny.

As for the health insurance premiums, costs, etc., there is no bigger fallacy than that they are driven up by litigation costs. That is a bit of paid for public opinion that the AMA and the insurance/business industry have been creating for years.
+1 not attorney, but live with one. hahahahah

[jdellman]

Steve S- I hate to admit it, but I am an attorney. An additonal problem that you would have in suing the mfg is that they would not be liable for the cost of the dead fish, (what is known as "consequential damages"). If you are injured, you can recover consequential damages, but not for a breach of contract.

Lauris- I don't want to start a debate, but I figure you must be a plaintiff's attorney! ;)

[The Discus Shop]

As for the health insurance premiums, costs, etc., there is no bigger fallacy than that they are driven up by litigation costs. That is a bit of paid for public opinion that the AMA and the insurance/business industry have been creating for years.

Hi Lauris,

I'd like to learn why you think the notion of too much litigation as a cause for the rise in med. service fees and insurance premiums for doctors is a fallacy?

As I am just a young lad heading into medical school and not law school, clearly you are the expert in this department. However, I just feel that it's counter intuitive for large medical institutions and organizations to continue to afford hefty premiums to insurance companies, even leading to the exodus of doctors to leave certain areas of the country (e.g. Philadelphia) due to their inability to offset premium costs (~50k a year for primary physicians and ~100k for many specialists) with their income, when all that doctors need to do is to do a little research on settlement figures and call the insurance companies' bluff? If people who sue the medical community are not being awarded monstrous compensations in the millions, then why are laws passed to cap these malpractice compensations to under 250k in some states?

I would really like to learn things from a different perspective regarding this topic, especially from an attorney. So please view my inquiries as a well-intentioned discussion opener.

Cheers,

Dennis

[lauris]

I am loathe to spend my time on a discus board in a legal discussion, but in response to some of the replies, I would add that I am not a plaintiff attorney, any med mal I do is from a defense perspective. I actually also handle some coverage and underwriting issues and it does not appear that pricing in the insurance market has much to do with loss. Rather, prices are set by investment returns and by what the market will bear. Whipping up all sorts of hysteria about lawsuits allows gouging on the premium. Doctors and HMOs have deep pockets and with the right prodding, will pay the insurers to make up for their miscalculations on mold claims or hurricane losses, etc.

I do not have a lot of facts at hand here in my recliner this Sunday morn, but there are good and balanced articles that point out the lack of hard data (as opposed to anecdotal, $25 million for spilled coffee, all the doctors are leaving 'urban myths') linking med mal awards to any crisis. Any intelligent person has to acknowledge the role money plays in shaping public opinion through lobbying, co-opting 'research', public relations and press agents, whatever. Who has more money than the drug companies/insurers/AMA/hmo's? Much of the impetus for fanning the flames of the 'crisis' is to put ever more money in their pockets.

Doctors are somewhat more susceptible to gouging than other professionals. They are (stereotype coming here) for the most part locked up for a decade after college and are pretty insulated from 'real-world' market/business dynamics when they emerge from their training. They pay what they are told. They are also prone to be hyper-sensitive to second-guessing and after the fact judging of their work. Their sacrifice (and reward) is immense and they do not care to be questioned as to the care they provide. They do make mistakes, however, some of them just terrifically negligent. In all the types of cases I have handled, no group of defendants (be they building contractors, product manufacturers, software developers, whoever) is more prone to perjury and document destruction than medical professsionals. I am sure that statement will go over well. There are already myriad legal protections that the medical profession has been able to institute, a med mal plaintiff faces statutory hurdles in most jurisdictions that are not present in other cases. No case is harder or more expensive to win for a plaintiff than a med mal.

The actual percentage of awards or settlements that are in the millions of dollars is infitesimal. The big ones get attention that is true. The caps on damages come about so that the corporate number people can predict the max of losses related to their errors. They hate it when they get caught screwing up badly and have to pay millions.

In closing, and I doubt I will have the energy or time to engage in this thread further, it should be remembered that attorneys don't award damages. A jury hears the evidence, gets immensely pissed at the defendant for its outrageous conduct, and makes up some huge number that usually never gets paid. When King Lear (?) says 'lets kill all the lawyers' it is in the context that if he does not, civil liberties and individual rights will be a pain in his ***.

[The Discus Shop]

HI Lauris,

Thank you for taking the time to further share your knowledge and opinions regarding this matter to me on a Sunday morning. I too feel that this thread has become rather out of place, especially on a discus forum, and I'm confident that both of us would rather spend more time caring for our fish than to pursue this any further. :)

However, please do take notice of one last thing I'd like to mention. Generalizing and stereotyping has both positive and negative impacts, and I just wanted to say that not ALL doctors have pockets deeper than the grand canyon and not all of them are insulated to things outside of medicine. In fact, I work with many who volunteer to help the underserved community by providing free clinics on weekends. I also personally know many physicians who are lawyers and business owners, and quite a few who are barely making it due to malpractice premium costs and have either moved or are considering moving. Thus, it's hard for me to dismiss what's happening as urban myths. Finally, medical students are constantly under intense scrutiny, so we CAN take 'second guessing' and either defend or rectify our positions. One can generalize and stereotype about any profession, but it's better to examine current facts in order to make more informed judgements.

Thanks!