Tuesday, July 22, 2014

California Appellate Case Adds Bite to Bad Faith Litigation

Insurance companies are supposed to serve the interests of their insureds. By paying a premium, insureds should expect peace of mind, financial security, and a good faith investigation in the event of an accident. Unfortunately, that isn't the case all of the time.

Sometimes insurance companies act in "bad faith."Bad faith" is a legal term derived from principles of contract. Certain contracts,  like insurance, require that  parties act with "good faith and fair dealing," with one another. Specifically to insurance, insurers are mandated to fairly investigate, evaluate, and process a claim.

When an insured's insurance company fails to properly evaluate or process a claim, it could potentially lead to "bad faith" litigation against that insurance company. Recently, a California case expanded the ability for insureds to bring a bad faith litigation case against their own insurance company.


The Plaintiff in Maslo was involved in a motor vehicle accident where it was found that the other driver was at fault. After medical treatment for a number of months, Plaintiff submitted a demand to his own insurance company for the policy limits under his UM (uninsured motorist) provision.

Ameriprise, the insurer, asked for an extension, and then commenced arbitration proceedings. In doing so, it did not make a settlement offer and refused to mediate the matter. As a result, Plaintiff had to wait an additional 2 years to receive an award, less than the policy limits.

After arbitration, Plaintiff filed a bad faith lawsuit against Ameriprise. Plaintiff alleged that Ameriprise forced Plaintiff into arbitration without investigating, evaluating, and attempting to resolve the claim. Ameriprise rebutted, as a defense, that there was a "genuine dispute" regarding payment, and that the arbitration award evidenced as much, since it was less than the policy limits. Ameriprise further stated that it was the fault of Plaintiff for overvaluing his own claim.

The trial court agreed with Ameriprise but the California Court of Appeal, 2nd Appellate District disagreed and reversed. The Appellate Court held that an arbitration award lower than the policy limit does not necessarily preclude an insured from bringing a bad faith lawsuit. It stated, in part:

"An insurer’s statutory duty to attempt to effectuate a prompt and fair settlement is not abrogated simply because the insured’s damages do not plainly exceed the policy limits. Nor is the insurer’s duty to investigate a claim excused by the arbitrator’s finding that the amount of damages was lower than the insured’s initial demand. Even where the amount of damages is lower than the policy limits, an insurer may act unreasonably by failing to pay damages that are certain and demanding arbitration on those damages."


The recent decision makes it clear that insurance companies cannot simply rely upon an award, in of itself, to clear themselves of "bad faith." Insurance companies have a duty to thoroughly investigate, evaluate, and process a claim after liability is determined, no matter if they think that they can prevail at an arbitration proceeding. This means that insurance companies will have to make a good faith attempt to settle first party claims prior to arbitration.

It is always best to have an attorney represent your interests. Our office has a lot of experience in dealing with insurance companies -- and potential "bad faith" situations. We welcome your questions, calls, and cases.

Monday, July 14, 2014

I Was Arrested for a DUI; Now What?

A California DUI carries some harsh penalties. Due to the nature of this offense -- it is a clear public safety concern, our state has elected to take a tough stance. But just like any other criminal charge, there are steps that an accused can take that will help him or her in the future.


When there is sufficient probable cause, law enforcement may investigate and arrest an individual for a DUI. While defense attorneys can later challenge probable cause, it is wise to be respectful when stopped for suspicion of a DUI.

You should be polite and cooperative with law enforcement. It does not mean that you should waive your rights, but it will not help to be combative during the stop. Cursing, yelling, and being rude will not make the officer go away. In fact, it will be mentioned in the police report.

However, you should not volunteer information. Exercise your right to remain silent. Miranda is the landmark case, which protects statements from being admitted into evidence if there has not been an affirmative warning, but Miranda warnings only have to be given after a formal arrest. Thus, law enforcement will always utilize your statements to assess guilt before a warning. Slurred words, admissions of guilt, and memory lapses can lead to problems down the road.


If you have been arrested, you should exercise your right to an attorney. There is a reason that there is law school and a bar examination. Further, there is a reason why attorneys charged with a crime will almost always retain another attorney. It is difficult for someone, under an emotional state, to represent themselves.

More than that, retaining an attorney will mean that a professional can immediately begin to protect your rights. Experience and knowledge can go a long way in fighting a DUI charge.

Schedule your DMV suspension hearing, or have your attorney do it immediately. There are two aspects to a DUI, as discussed on my website. There is the actual criminal charge handled by the superior court, and the DMV aspect of the case. They are distinct and separate, although the court can impact what the DMV will do.

Within 10 days of the arrest, a hearing needs to be scheduled. A DMV suspension hearing is a great opportunity to explore probable cause, the officer's testimony, and other evidence that will be used against you. Do not sleep on your privileges with respect to licensing issues.


 Finally, after you have been arrested and released under your own recognizance, exercise your right to information. The web has become a treasure trove of free legal content, including my blog and website. You should become familiar with the criminal, and DMV, process. Further, you should research potential DUI attorneys. An accused should be aware of the charge against him or her, and the consequences of that charge.

Our office invites your questions. We have experience in DUI, and other criminal cases. Remember that time is of the essence, so do not procrastinate if you or a loved one has been charged with a DUI.


Monday, June 30, 2014

You Should Know What's In Your Automobile Insurance Policy

As a practicing injury accident attorney, I get the pleasure of having to deal with insurance companies on a daily basis. Insurance companies are essential but if you do not understand the relationship between the insurance company and yourself, you could find yourself in trouble later on.

Almost every client we retain lack knowledge on what is specifically in their insurance policies. They do not know what their bodily injury policy limits are. Or whether they have rental coverage. Some do not even know what medical payment coverage is or uninsured motorist coverage for that matter. It is a problem because it can leave you having to pay for expenses out of pocket that could have been avoided.

Let's discuss insurance policies so that my readers can be prepared, and financially secure in the event of an accident.


First, what is insurance? Insurance spreads risk among a number of parties. You purchase a contract with a premium, to cover you in the event of an occurrence. That occurrence could be as simple as a rear-ender or as devastating as multi-vehicle collision resulting in death. The pooled risk, held by the big insurer, pays for the liability of the negligent party, and in some cases, the defense fees in litigation. Thus, the insurance contract transfers risk. You pay the premium so that if something bad does happen -- namely, an accident that you were at fault for -- you do not have to go bankrupt.


Second, automobile insurance policies have different levels of "protection." The insured gets the choice of paying a higher premium to obtain more beneficial provisions. Thus, if there is an unfortunate vehicle accident, the insured gets more security, i.e. does not have to pay out of pocket for a rental, does not have to pay out of pocket for medical treatment when liability is in dispute, and so on.

You should be familiar with some of the most basic provisions. One, you should know your bodily injury limits. A policy limit is the monetary limit at which the insurance company will pay for that specific liability. For example, a person with a $50,000 bodily injury limit will not have to pay anything out of pocket if the damages to the injured party do not exceed $50,000. However, if it was a catastrophic injury, the person's assets could be in jeopardy. Therefore, you should consider whether a higher limit makes sense for your particular circumstances.

Two, you should know whether you have rental coverage and medical payments coverage. Rental coverage means that your rental will be paid for while you vehicle is being repaired regardless of fault. Most individuals do not know that their property damage coverage may not extend to the rental. Medical payments coverage, similar to rental, will cover medical treatment up to a certain limit, regardless of fault. Thus, if you need to be transferred to the hospital immediately and undergo emergency treatment, the bills will be paid for by this provision -- even if it is questionable whether you were the cause of the accident.

Three, you should be aware of your uninsured motorist coverage. In California, you have to specifically sign and waive this provision if you do not want it. Uninsured motorist coverage will pay for your medical treatment and bills if the negligent party does not have insurance of his or her own. It's wise to purchase uninsured motorist coverage, because you should always protect yourself first -- and you cannot expect for everyone to abide to the law of the land.


If you are unfamiliar with certain provisions in your insurance policy, you should contact a personal injury attorney. Lawyers in this field have the experience and knowledge on how to advise individuals appropriately. Finally, remember that knowledge is power -- and in this area, it could mean savings too.

Saturday, June 14, 2014

California Supreme Court Upholds the Use of Red Light Cameras

A red light camera ticket is a type of traffic infraction that can cost you money, time, and anxiety. In fact, with so much misinformation online, I have spoken with many confused callers. They were not happy with the non-legal blog's advice.
A red light camera ticket is enforced by way of technology, rather than an officer. While frustrating, it is still legal in some jurisdictions. Indeed, the California Supreme Court, on June 5, 2014, upheld the use of red light camera enforcement. This blog will touch upon the recent case, and other aspects of red light camera citations. 


First, do not simply ignore the citation. Yes, I am aware of the information online from non-lawyers. It is not sound advice. The California Legislature enacted Vehicle Code section 21455.5 some time ago. This California law controls the requirements for how a jurisdiction may implement camera enforcement. Therefore, while some cities may have discontinued their programs, other have not. Culver City, Beverly Hills, West Hollywood, among others, have valid camera enforcement pursuant to the law.

Thus, if you ignore the citation and miss a mandatory court appearance, it is possible that you can be found guilty of a failure to appear violation. This will add significant, and unnecessary, fines to your citation. Unless you were active military, incarcerated, or receiving medical care, the court will most likely find you guilty.


Second, the California Supreme Court has addressed some of the constitutional issues related to evidentiary foundation, authentication, hearsay, and confrontation. People v. Goldsmith (2014), S201443, recently decided, upheld the use of camera enforcement. The decision was a major victory for the red light camera programs. 

The arguments in that case were similar to some of those posted on the online blogs. The defendant in the Goldsmith case argued, one, that the photos, obtained from the red light camera, were not legally authenticated. In short, the defendant argued that the photo evidence could not be admitted against her because it was unreliable. The California Supreme Court disagreed.

With sufficient legal rationale, the Court explained that the photos were reliable, and notwithstanding the reliability, the evidence could be admitted "as provided by law." There is a statutory presumption that the photos are reliable. The trial court does not have to accept the photos as true, but it can admit it into evidence to be weighed against the defendant.

Two, the photos are not hearsay, according to the California Supreme Court. Section 1200 of the Evidence Code defines hearsay as, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." The Court clarified that a camera could not be characterized as a "person," who has the capacity to make a statement. The law does not contemplate whether a machine can make a statement -- at least not yet.

Third, the confrontation clause is not invoked because a defendant cannot, and does not have the right, to cross-examine a camera. Machine-generated printouts are not within the bounds of Sixth Amendment protection.


I always advise consulting with a defense attorney. Although traffic infractions only involve a fine, not jail, it is best to consult with a lawyer for a few reasons. It can save you money. It can save you time. It can give you peace of mind.

Moreover, a red light camera ticket does not necessarily mean that you will be found guilty. The burden of proof in a traffic case is still "proof beyond a reasonable doubt." If the picture is unclear, or if there is an identity issue, the ticket can be dismissed. But, it is always wise to seek out the advice of a person with knowledge and experience. Our office invites you calls, and we remind you that nothing in this blog should be construed as legal advice. Watch out for the machines.