By Carlos Gonzalez of Rubenstein Law
October 24, 2006 was supposed to be a typical Tuesday for Natasha Weigel, Amy Rademaker, and Megan Ungar-Kerns as they returned from their local Wal-Mart. Their evening took a turn for the worst when their 2005 Chevy Cobalt suddenly became airborne and ultimately crashed into a telephone pole and some trees. Both Weigel and Rademaker passed away, Ungar-Kerns survived with severe brain damage.
The surviving family members were all plagued with the same questions: how did this accident happen or what caused it? They were left without a clue until the investigators found that the Chevy's ignition was set to "Accessory" and not "Run". The meaning of this was unclear at first but then General Motors recalled their 2005 Chevy Cobalt a couple of months later. The reason for the recall was for faulty ignition switches.
The families of Weigel, Rademaker, and Ungar-Kerns were not alone; other families lost their loved ones in vehicles equipped with the same or similar ignition switch of the 2005 Chevy Cobalt. Around mid-September, GM estimated at least 13 deaths were caused by vehicles equipped with those switches. In an apparent effort to avoid litigation, GM established a voluntary program to offer a possible settlement to those families.
The GM Final Protocol, dated June 30, 2014, lays out the requirements of admission to the program. The one peculiar requirement is found on page 4, under section II, sub-section E. It states, in pertinent part,
"No claim shall be eligible unless, after reviewing all of the information submitted as required herein, the [Claims Resolution Facility] determines, in its sole discretion, that the Ignition Switch Defect in an Eligible Vehicle was the proximate cause of the death or physical injury. The Facility will not take into account any contributory negligence of the claimant in making this determination."
The elements that make up this requirement will be briefly discussed. It is of great importance to those that are about to participate in this program that they at least understand the terms used in these two sentences.
Although this program is not a lawsuit, the "proximate cause" term used is the one used in civil lawsuits involving injuries caused by faulty products. A plaintiff, the person or entity starting the lawsuit, will have to prove several elements to win its case. For example, the plaintiff will have to show that the faulty product was the proximate cause of the death or the injury. In situations where it is clear what caused the injuries, the plaintiff can use the "but for" test. This test is simple: if but for the faulty product, the injury or death would have never happened, then the Defendant should be found at fault. However, in situations where there might be concurrent causes, the courts in Florida, for example, have allowed the "substantial factor" test. This test is designed for situations where other factors might have caused the injuries. This test is much more difficult to apply because the plaintiff will have to show that the faulty product was a material and substantial factor in causing the injury. The program seems to use this "substantial factor" instead of the "but for" test.
If one thing is clear, it is that the proximate cause question can be highly subjective. Except in very unique situations, the question of whether the faulty product was the proximate cause of an injury is left up to the jury to decide. By participating in this program, there will be no jury because the Claims Resolution Facility itself will make that determination in its sole discretion. Although the Claims Resolution Facility is apparently independent of GM, one fact remains clear: the Claims Resolution Facility was created by Kenneth R. Feinberg upon request by GM.
The term "contributory negligence" refers to a defense that prevents the plaintiff from recovering if the defendant shows the plaintiff to be even 1% negligent. This is a harsh defense and those participating in the program should be happy that the Facility will not take into account any contributory negligence of the claimant when determining whether their injury is eligible under the program. A good example of contributory negligence is perhaps not wearing a seatbelt or driving while under the influence.
The above discussion was but a small fraction of the requirements needed and elements described in the program. Although the program does not require an attorney, anyone trying to participate in the program can greatly benefit from the professional help of a competent attorney. Here at Rubenstein Law, we have many years of experience with cases involving product defects and motor vehicle accidents. If you or your loved one has been injured as a result of GM's faulty ignition switch, please call us immediately at 1-800-FL-LEGAL. Our firm has offices in Miami-Dade, Broward, West Palm Beach, and Orlando.