Tuesday, August 25, 2015

Subrogation in Third Party Accident Cases

"Good news: your case has settled." The client asks in response, "When do you think I will get my portion of the settlement?" There is a pause over the phone. The personal injury attorney -- experienced and familiar with post-settlement -- was expecting the question. "We cannot disburse any funds until the liens are satisfied." "When will that be?" The lawyer's answer did not satisfy the client: "it depends..."

The general public is unfamiliar with the term, "subrogation." However, it is an important concept to attorneys and insurers. Subrogation allows insurers to recover costs that they may have expended on  behalf of their insureds. Simply put, when there is a third party accident, the first party's insurance carrier is able to recover monies from the third party who is at fault. The insurer steps into the shoes of the insured and gets the right to be paid what it has lost.

An example may help. Let's say Frank, the first party who was injured, retained Adam the attorney. Frank was hurt in an accident, so he needed medical treatment. Frank went to his primary care provider for help. All of the medical bills from his primary care provider were sent to Frank's health insurance carrier, "HealthIns."  HealthIns was made aware by Adam, Frank's attorney, that the treatment was related to a motor vehicle accident.

Meanwhile, Adam was able to prove that Tom, the third party, was at fault for the accident. Tom's insurance policy had a liability limit of $15,000. Due to the extent of injuries to Frank, Tom's liability insurer offered to settle Frank's claim for the full amount of $15,000. Adam relays the offer to Frank, and Frank accepts.

There is now $15,000 in settlement funds. Before the funds are disbursed, however, HealthIns reminds Adam that it will enforce its right to subrogation. HealthIns paid $5,000 to Frank's medical provider. Adam and HealthIns must now settle the subrogation lien prior to the disbursement of funds to Frank.

Sometimes it can take months for a case to be closed after it has been settled. It is frustrating but it is the law. In some circumstances, the insurer will not be able entitled to subrogation.

A health insurer may not be entitled to subrogation if the insured was "not made whole." The "made whole doctrine" is an equitable principle that states, absent an agreement to the contrary, an insurance company may not subrogate until the insured has been fully compensated for his or her injuries, or "made whole." See Sapiano v. Williamsburg Natl. Ins. Co. (1994) 28 Cal.App.4th 533. This principle will sometimes apply when there is a catastrophic injury and a low liability policy.

Needless to say it is obvious that personal injury law is complex. It is best to retain, or consult, with an experienced personal injury attorney after an accident. Not only should the attorney be able to recover a settlement or judgment, he or she will be able to advise on the intricacies of subrogation, liens, and rights to reimbursement.

Saturday, August 8, 2015

Bench Warrants

A number of times prospective clients have called and asked questions about bench warrants. "Can an attorney go to court for me, without me being there?" "Will or can I be arrested?" "What did I do, which makes a warrant necessary?" These example questions, all legitimate, will be answered in this blog post.

"Warrants" have been around longer than the United States. The general definition of a warrant is a document issued by a legal or government official authorizing the police or some other body to make an arrest, search premises, or carry out some other action relating to the administration of justice. The Fourth Amendment of the Constitution requires that probable cause be present prior to the issuance of an unreasonable search and seizure warrant.

Warrants may not involve a search or seizure, however. Judicial officers can issue bench warrants for different reasons. Some of the most common reasons why a bench warrant is issued: (1) a defendant misses a mandatory court appearance; (2) a defendant faces a possible revocation of probation; and (3) a defendant fails to pay court ordered fines. 

Bench warrants do not require suspicion of a crime having been committed. Typically, bench warrants involve open cases. Judicial officers issue a bench warrant and it authorizes law enforcement to arrest and detain an individual so that the open matter can be disposed of. 

To clear a bench warrant, the defendant must appear before the court. In the rarest of cases, judicial officers allow an appearance without the defendant being present. Most of the time, defendants will need to be present. It depends on the particular case, and facts of that case. Some courts have different protocol, i.e. time limitations to appear (before 8:30 am at some courts). It may be necessary to consult with an attorney to answer questions specific to a particular set of facts.

Felonies, misdemeanors, and even traffic matters can result in the issuance of a bench warrant. In some cases, a driver's license hold is placed on the defendant too. Ignoring a bench warrant is extremely unwise and potentially dangerous to an effective defense. Far too many times, judges have scolded defendants for attempting to skirt the law. 

If you, a loved one, or friend has a bench warrant, it is best to get a taken care of right away. Seek the consultation of a criminal defense attorney; most offer free consultations.

Friday, July 24, 2015

Cell Phones May Impact a Personal Injury Case

Last week, our blog discussed unlawful searches of cell phones by law enforcement. This week we will be discussing cell phones but in the context of a personal injury case. How will evidence of cell phone use affect an injury accident matter?

Cell phones are widely used. Nowadays, it is difficult to find someone who does not own a cell phone that can text or search the internet. One report concluded that there are now more cell phones in the United States than people. Moreover, the National Safety Council has reported that 26% of all collisions involve a party using a cell phone while driving. Given these facts, personal injury attorneys should be prepared to investigate whether the at-fault party was using an electronic device, which helped cause the collision.

Cell phone cases are similar to DUI cases. Let me give some examples. One, it is unlawful in California to drive and use a cell phone (or manipulate a device with one's hands while driving), like it is unlawful to drive while under the influence of alcohol. Two, California has taken steps to notify the public of the dangers of driving while using a cell phone, just like with DUIs. Commercials are on all of the time -- some of them involve the victim speaking about how a cell phone has harmed them significantly. Three, a separate criminal case (DUI), or infraction case (cell phones), could help prove liability with respect to the negligent driver. In a lot of DUI cases, the district attorney makes the defendant admit liability for purposes of restitution.

Besides liability, cell phone use could potentially lead to punitive damages. Courts have held punitive damages are appropriate in some cell phone cases.

The argument to request punitive damages in a cell phone case relies upon the wisdom of the seminal case that involved a DUI driver: Tayor v. Superior Court (1979) 24 Cal.3d 890. In that case, the California Supreme Court found that certain conduct could give rise to a request for punitive damages. The opinion did not limit "malicious conduct" to DUIs. It stated, in part, that: "the circumstances in a [non-DUI case could involve] similar willful or wanton behavior..."

Injured parties should not only investigate cell phone use for purposes of liability, they should also consider whether it could impact the damage element of their case. Not all cases of cell phone use will merit punitive damages, however. "Malice" is difficult to prove. Nevertheless, plaintiffs should be generally aware of how cell phone use could potentially impact their own case.

Saturday, July 11, 2015

Law Enforcement Cannot Search Cell Phones Without Warrants

It is common knowledge that the law moves slow, much slower than technology. When it comes to technological advances, the law can barely keep up. One should be able to see why. Drafters of legislation, usually not keen on computer science and engineering, have a difficult time anticipating how new devices could impact the law.

For example, cell phones in the 1980's were bricks. Users could expect dropped calls and much attention. The ability to make calls without a landline was groundbreaking. But, cell phones did not serve any other function besides making calls. Many could not predict that cell phones would become min-computers. Smartphones are radically different from first generation cell phones; lawyers, judges, and legislators may have been the last to realize it.

Smartphones have impacted the law, and the Fourth Amendment. Messages, applications, and search history can assist law enforcement. Drug deals can be carried out by text message. Illegal transfer of stolen money can be done by mobile banking. Indeed, a murderer could develop ways to kill someone by searching on his or her cell phone. The vast majority of cell phone use is not criminal in nature. As such, it is important that privacy is protected. 

In June of 2014, the United States Supreme Court unanimously held that searching a cell phone incident to arrest requires a search warrant. Riley v. California was a strong rebuke of the government's position that law enforcement should be able to access digital data before it could be potentially destroyed.

Chief Justice John Roberts wrote, in part, that: "[t]he fact that technology now allows an individual to carry [the privacies of life] in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."

In practice, law enforcement has been slow to apply Riley. One would be surprised how often police officers still search cell phones after a DUI, domestic violence, or misdemeanor arrest without a warrant. In these cases, there can be redress if inculpatory evidence is obtained.

Should law enforcement search a cell phone after an arrest without a warrant, a defense attorney may be able to prevail in suppressing the evidence. A 1538 motion to suppress should definitely be considered as an option by a defense attorney if there are possible Riley violations.

Smartphones are more than just phones, they are at the center of many people's lives. Although the Fourth Amendment didn't touch upon the legality of searching cell phones (the founding fathers were smart but not fortune tellers), we now know that it is the law of the land that cell phones cannot be searched without a warrant.