oysters

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rghormley
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oysters - Wed, 05/24/06 5:57 PM
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One night, a customer dining with us chipped a tooth on a pearl in one of his fried oysters. I turned it over to my insurance company. My insurance company denied his claim, saying that I am not liable because a pearl is an inherent part of an oyster. This person now has taken me to small claims court for $1300.00 (bill for chipped tooth), and has filed a complaint with the BBB. What would you do?

Scorereader
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RE: oysters - Wed, 05/24/06 7:03 PM
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Get a lawyer.

Unless you think you're at fault and should pay, you probably need legal advice from your attorney.

If the attorney fees are too high, you could try to settle out of court.

But, if the customer is taking you to court, you are going to have to go eventually unless you resolve it out of court. So, speaking to your attorney may be a good idea no matter what. You need someone with some legal expertise who can really look at your case, and give you the best options.

As far as the BBB complaint, you can also contact the BBB and let them know that the complaint comes during a suit, and you would like to be able to address their complaint on record(if your attorney advises you to do so).

I'm not sure about your case, I think your insurance company is strectching a bit. But that's only my opinion. I say it's a stretch because only 1 in 10000 oysters produces a pearl in the wild. Therefore, it's no more an expectation for the oyster to have a pearl than it is for it to have a stone in it.

Let us know how it turns out. It sounds like an interesting case.


Adjudicator
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RE: oysters - Wed, 05/24/06 8:10 PM
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Side note. Were the oysters freshly shelled and then fried or were they from a vendor? I think you can see where I am going with this, etc. Welcome to our little community, BTW.

BT
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RE: oysters - Wed, 05/24/06 8:30 PM
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quote:
Originally posted by Scorereader

Get a lawyer.

Unless you think you're at fault and should pay, you probably need legal advice from your attorney.

If the attorney fees are too high, you could try to settle out of court.

But, if the customer is taking you to court, you are going to have to go eventually unless you resolve it out of court.


The thing is, I would NOT settle out of court because you probably have a case to sue your insurance company for not defending and covering you if you end up losing a court judgement. If you settle, they could say you shouldn't have.

A lawyer will help sort this out and will probably be able to convince the insurance company to cover his fees because under most liability policies, if you are getting sued for something like this they have a duty to defend you and pay any judgement up to the limit of your coverage even if the suit is as silly as this one. Silly suits are, after all, why most of us carry insurance.

UncleVic
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RE: oysters - Wed, 05/24/06 9:17 PM
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Thats what I was thinking xannie... Either way, living in the midwest, oysters are not common food around here.. Is this a normal thing, or known thing that happens? If your in oyster country, was the customer aware of the risks (local or tourist)? I'd like to say get a lawyer, but it will probably be cheaper to pay out the 1300 vs the lawyer fee.. UNLESS, you get a lawyer that will get your insurance company to pay his and the customers costs.

Scorereader
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RE: oysters - Thu, 05/25/06 11:33 AM
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quote:
Originally posted by BT

quote:
Originally posted by Scorereader

Get a lawyer.

Unless you think you're at fault and should pay, you probably need legal advice from your attorney.

If the attorney fees are too high, you could try to settle out of court.

But, if the customer is taking you to court, you are going to have to go eventually unless you resolve it out of court.


The thing is, I would NOT settle out of court because you probably have a case to sue your insurance company for not defending and covering you if you end up losing a court judgement. If you settle, they could say you shouldn't have.

A lawyer will help sort this out and will probably be able to convince the insurance company to cover his fees because under most liability policies, if you are getting sued for something like this they have a duty to defend you and pay any judgement up to the limit of your coverage even if the suit is as silly as this one. Silly suits are, after all, why most of us carry insurance.


I agree that speaking to an attorney is the best option. Settling is really only an option if you want this to go away fast and don't want to deal with it. And you can always counter the settlement with your own offer. If you decide to settle out of court (which isn't my advice) you should counter the settlement with a price of your own and see what happens. Also, as a part of the agreement, you'd want a no-fault clause.


WVHillbilly
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RE: oysters - Thu, 05/25/06 2:04 PM
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Your insurance company is trying to stiff you and the customer. Get a lawyer. The lawyer will threaten to bring a bad faith claim against the insurance company, the insurance company will pay the customer and the lawyer and that will be the end of that. . . at least that's the way it would go in WV.
Insurance companies are low life operators who will take every chance to screw someone to save a few bucks. They will very often make up a bunch of bs tryiing to get out of paying, but when pressed, will go ahead and pay. Health insurance providers are beginning to adopt that strategy as standard procedure.

Scorereader
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RE: oysters - Thu, 05/25/06 3:58 PM
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quote:
Originally posted by WVHillbilly

Your insurance company is trying to stiff you and the customer. Get a lawyer. The lawyer will threaten to bring a bad faith claim against the insurance company, the insurance company will pay the customer and the lawyer and that will be the end of that. . . at least that's the way it would go in WV.
Insurance companies are low life operators who will take every chance to screw someone to save a few bucks. They will very often make up a bunch of bs tryiing to get out of paying, but when pressed, will go ahead and pay. Health insurance providers are beginning to adopt that strategy as standard procedure.


For what it's worth, I know we're disagreeing in another thread, but I think you're right, dead on in this thread. Lawyer up, and results will ensue. I think the insurance company's claim that eating an oyster has an inherent danger of containing a pearl is pretty far fetched. It's almost humorous, if they weren't serious.



V960
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RE: oysters - Fri, 05/26/06 1:12 PM
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In NC, lawyers are not allowed in small claims court but the $ limit is also $1,000. And at $1300 it sounds more like a crown was installed which would seem to indicate the tooth was defective when he walked in the door. Pearls are not that tough an item, not like a chunk of granite.

I would do some checcking on the tensile and compressive strengths of pearls vs. HEALTHY human teeth. If a HEALTHY human tooth is tougher than WILD pearl (not cultured) and you can produce this proof from a reputable source you've got a good case.

I think if you check the fine print on your contract w/ seafood supplier you'll find a disclaimer on foreign matter in shellfish.

For sure reply to his complaint at thee BBB. This requires them to give both sides when someone inquires.

mahoney
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RE: oysters - Fri, 05/26/06 3:01 PM
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From a first poster to a first poster, with over 13,800 posts in between, Yikes!

I'd pay it out of pocket, A good Lawyer will find a way to get more than $1300.00 out of you, get your Insurance Co. to pay it, your rates very well may go up, or you could not be renewed next yr. If you can afford it get rid of it.

bassrocker4u2
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RE: oysters - Sat, 05/27/06 7:12 AM
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your insurance company is absolutely right. this was decided many years ago, when a certain man choked on a fish bone and tried to sue the restaurant. you are not liable, and any judge will know that.
consumer assumes risks.
same as parking your car at a ball field. if a ball strikes your windshield, you assumed the risk, when you parked there.
i wouldnt pay a dime. i wouldnt even hire a lawyer, i would just let the judge see all the evidence, and it would be over....


Ashphalt
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RE: oysters - Sat, 05/27/06 9:27 AM
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Bassrocker is probably right as far as it goes, but the law varies from state to state. Get a recommendation for a good lawyer who won't gouge you and get their advice.

prisonchef
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RE: oysters - Tue, 05/30/06 11:28 PM
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bass has hit this one right smartly. the scene he brought up is taught in culinary school and follows a similar finding by the federal courts on fish bones. stand your ground. get a lawyer. file a suit against your insurance company and a countersuit with the customer. if the customer drops his suit go for his throat and do not turn loose. bankrupt his ass and those of his heirs 5 generations down. and make sure you have a clause that states if he ever speaks in a less than a flattering tone about your operation then you have him on defamation. sounds mean but you have the weight of previous judgements to back you up and you have your good name at risk. that alone is worth bankrupting his great great great grandchild.
by the way i damn sure hope you have the tag from the bag. you have to retain those for 90 days after the last service of items from those bags. now if you dont have the tag then shame on you and run like hell and forget all of the above. suggesting a vasectomy for being that dumb would be harsh but perhaps not too far out of line as defective genes like those could contaimminate the entire human gene pool.