Wednesday, October 22, 2014

Primary and Secondary Insurance in an Automobile Accident

The world of California insurance is based on contract law, California statute, and insurance regulations. There are many overlaps, some of which can lead to confusion. Insurance disputes can cause a person to become disoriented -- because there is potentially a lot of issues that need to be resolved.

One such issue that arises frequently in my practice as an accident attorney: which, if any, insurance policy provides coverage for the accident. Two individuals involved in an accident does not mean that there will be only two policies in place at the time of the accident. Let me explain.

Yes, one could expect at least two insurance policies in place at the time of the accident if there are two parties involved (because California law requires insurance when driving); but, there could be two more if they were both driving during work, and within the scope of their work. Most employers carry commercial auto policies. Therefore, an attorney, representing an injured party, should certainly investigate to see whether there was an employer auto policy in place at the time of the accident.

But wait, there still could be more policies (more than 4)! Let us take the same hypothetical above, and add one set of facts. Two individuals are involved in an accident, during work, but one of them is borrowing his uncle's vehicle. Now, there could be a potential issue with the vehicle involved in the accident, because it is owned by a non-party to the accident. Insurance policies will sometimes follow the vehicle, particularly if the driver is a "permissive" driver, meaning that the driver had permission to drive it. With this new set of facts, there could potentially be 5 auto policies in place.

For fun we can add more. Take the second hypothetical but add yet another twist. Say two individuals are involved in an accident, during work, one of whom was driving his uncle's vehicle, but the accident was partly caused because a road was not properly maintained. The road should have been maintained by a government entity but it was not. Governments carry insurance too. The third hypothetical could involve 6 auto policies.

Because insurance can be carried by a number of parties, and can potentially cover the same accident, it is important to understand some of the basics of primary and secondary coverage.

More policies does not necessarily mean that an injured party will receive more. A person's damages are limited to the extent of the person's injuries. One million dollars of insurance will not be paid out (more often than not) for an extremely minor collision. However, more policies does mean that in the event of a catastrophic accident, a person will likely receive more.

At the outset, insurance carriers will determine who is the primary carrier. Those insurance carriers that are not primary are usually referred to as "excess" carriers, meaning that they will not have to pay out a claim unless the damages exceed the primary insurance's "limit." Typically the primary insurance carrier is the insurance carrier of the negligent party. Thus, if a primary carrier only has a limit of $15,000, it is more likely that an "excess" carrier will have to pay out a claim as well, if the injuries were significant.

Like I stated at the beginning of this blog post, it can be problematic if an injured party does not have the same knowledge as a seasoned personal injury attorney when it comes to insurance. It is extremely wise to contact a lawyer for the reasons above for a consult. Should you need to discuss a potential case, we welcome your calls and questions.








Thursday, October 9, 2014

California Posed to Reform Criminal Justice

Come November, California voters will get the opportunity to vote yes on Proposition 47. The proposed legislation would be beneficial for everyone -- residents, defendants, and inmates. As a criminal defense lawyer, I get to see everyday how our criminal justice system needs urgent reform.

A short while ago, the United States Supreme Court ordered that California lower its prison population. The harsh three-strikes law implemented 20 years ago led to a surge in incarceration. Also troublesome was the severity of non-violent crimes like: petty theft, fraud, forgery, and most drug crimes.

The proposition on the ballot will help allay some of these problems. First, it will mandate that a large amount of non-violent crimes be charged as a misdemeanor instead of a felony. This will ensure that individuals involved in a theft, in an amount under $950, and other individuals involved in personal drug crimes, will not face prison time. They will face jail time instead.

Reclassifying some felonies to misdemeanor will help but Proposition 47 does more. It will directly allow already incarcerated individuals apply for relief if they are eligible. Thus, those individuals already in prison for possibly stealing an item less than $950, and where violence was not involved, could be released. This will alleviate some overcrowding.

The savings derived from the release of inmates will benefit the community at large. Money from the budget will not go towards overcrowded prisons. Instead, all of the savings will be used for mental health programs in California. People who have struggled with substance abuse will be able to seek out help. Those that need counseling will receive it. These preventive measures do far more than mass incarceration to decrease recidivism.

Opponents cannot claim that Proposition 47 will lead to more violence because the reforms will only impact those who are involved in a non-violent crime. Further, the proponents of the reform make some great arguments, both legal and moral.

One of the biggest backers of Proposition 47 is a conservative Christian who believes in redemption and forgiveness. He was encouraged by prison ministries, a non-profit organization founded by Chuck Colson to help inmates readjust to non-prison life. Mr. B. Wayne Hughes Jr. wants to use his wealth to do good for those who are trying to change their lives for the better.

I encourage you to vote yes on Proposition 47. Further, if you want a consultation with respect to a criminal charge that may be impacted by this legislation, I welcome your calls. 





Thursday, September 18, 2014

The Elements of Negligence

There are a number of different ways to get injured, unfortunately. People may slip, or a person may be involved in a motor vehicle accident with someone else. Others may even fall from a shoddy building.

Injured persons all share a common possible cause of action: negligence. The person that slipped may have stepped on a banana peel left on the ground by a business employee; the person who struck the injured's vehicle may have been speeding; and the building, where the injured fell, may have not been up to regulatory code.

Negligence is common. Although there may be an infinite number of ways that negligence could occur, the elements of negligence are always the same. For a claimant/plaintiff to be successful, he or she must prove duty, breach of duty, causation, and damages. Let's go through the elements in more depth.

Duty and breach of duty is what makes a defendant "negligent." As individuals of society, we have duties to one another. We have a duty not to harm someone from our actions -- we must use reasonable care. Further, some individuals in society may have more duties than others. A business owner is obligated to provide safe products, i.e. he has a duty to ensure that what he or she is selling is safe. A driver of a motor vehicle must also ensure that he or she is obeying all laws, and driving with due care.

When someone does not live up to their duty to another, or breaches that duty, he or she may be "negligent." For example, let's take a motor vehicle accident. Person A was speeding, talking on his cell phone, and eating a burrito. Upon approaching Person B, Person A could not stop his vehicle in time. Person A's truck slammed into Person's B tiny car. The accident is intense. In this example, Person A breached his duty to drive with due care, and he was "negligent" to Person B.

Being "negligent" does not prove negligence though. There are four elements, not two. A claimant/plaintiff must also show causation and damages.

Causation must connect the "negligent" act with the injuries incurred (damages, which we will discuss shortly). For example, if a person fell from a shoddy building, the building owner still may not be liable for the injuries. Why? Maybe causation cannot be proved. Even though the building was not up to code, the breach of not following the building codes had nothing to do with why the person fell from the building. The falling person was pushed by a criminal. In this example, the building owner cannot be responsible because his failure to not keep the building up to code did not cause the person to fall -- the criminal who pushed him off was responsible for the fall.

Finally, any negligence claim must prove damages. Damages are those monetary costs that an injured person may face: medical bills, car repair bills, rental bills, pain and suffering, lost wages, etc. If someone is involved in an accident, but fortunately, the person is not harmed, he or she does not have a negligence case. There must be damages for any case to proceed.

Negligence may be a common occurrence in the law, and laypersons may be familiar with some of the concepts, but it is wise to consult with an attorney who has experience in personal injury. If you or a loved one has been injured as the result of someone else, contact our office for a free phone consultation. Be safe out there.







Monday, September 1, 2014

Will the Natural and Probable Consequences Doctine be Rejected in California?


A majority of murder, and other violent crimes, in California are gang related. Indeed, most of the post-conviction work that I have taken part in involves allegations of gang affiliation. Due to the nature of such crimes -- multiple individuals and lack of physical or testimonial evidence, the prosecution necessarily relies upon aider and abettor theories of criminal liability.

Under an aider and abettor theory, defendants can be convicted if they merely assist, encourage, or facilitate a crime. More specifically, they do not have to be the actual perpetrator of the physical crime against the victim.

Moreover, a defendant can be convicted if he or she aided a "target" crime, which naturally and foreseeably could have led to a more violent crime -- like murder.

In June of this year, however, the California Supreme Court curbed the "natural and probable consequences" doctrine. The criminal doctrine allows for the prosecution of aiders and abettors when they participate in a crime that was "reasonably foreseeable" to the target crime. In sum, an individual can be guilty of murder, if he assisted in a crime, which murder was a "natural and probable consequence." The rationale of the doctrine is deterring accomplices from partaking in criminal acts that may foreseeably lead to other more violent crimes.

But in People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held that a defendant can never be convicted of first degree premeditated murder on a natural and probable consequence theory. In Chiu, the defendant engaged in a street brawl involving 25 youths. The high school students fought one another indiscriminately until one of them shot and killed another young man. The defendant was charged with first-degree murder under the theory that he aided and abetted an "assault," which premeditated murder of the perpetrator was a natural and probable consequence. Defendant was sentenced to 25 years to life after he was found guilty of first-degree murder. The California Supreme Court reversed because they did not think that the defendant could have had the mental intent necessary for first degree murder.

Now prosecutors must rely on evidence to show that defendants had the specific intent to aid a premeditated murder. It is insufficient to argue the natural and probable consequence doctrine, as Chiu negated its application to first-degree murder cases. This decision implies that the California Supreme Court wants to depart from the wide application of the natural and probable consequence doctrine. Chiu stated, in part:

"[T]he connection between the defendant's culpability and the perpetrators premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and … the public policy concern of deterrence."

It appears that Justice Chin opens up to the possibility that there may be other instances where an element of the non-target crime is so detached that the natural and probable consequence theory would not serve public policy. Other states do not even apply the natural and probable consequences theory, so it's possible that the California Supreme Court would withdrawal, or at least curb, its unjust application. 

In fact, California may reject the entire doctrine. The California Supreme Court has granted review of a separate natural and probable consequence doctrine case in People v. Smith (Vince Bryan), S210898, D060317 Fourth Appellate District, Division 1.

Violent crimes, instigated by gang rivalries, are senseless and destructive to the community. But, when individuals are convicted of crimes that they did not intend or anticipate in directly, it also hurts the community. Many young men are duped into following irresponsible older gang members, who have no regard for societal mores. Lawbreakers should, and need, to be punished. Let's just make sure that the punishment is just and follows the rule of law.