In some cases, an attorney may have to go an extra step in securing valid coverage for an accident. Like in life, not every person driving a vehicle is a perfect driver. Some may not have a valid driver's license. Some may not have liability insurance or proof of financial responsibility. Even though California requires liability insurance with limits of a minimum: $15,000, some drivers disregard the law.
An accident that involves an uninsured driver will result in: (1) a license suspension for the uninsured driver; and (2) trigger coverage for the other driver pursuant to the uninsured motorist provision in the insured's own insurance policy.
Bad news is sometimes given to clients when it is confirmed that they waived their uninsured / underinsured motorist coverage. Thus, they are left with the sole option of pursuing damages from the uninsured driver directly, which typically means that they are left with no justice (most often, uninsured drivers have no recoverable assets and the costs of seeking a judgment outweigh any benefits).
But, a good attorney will go the extra mile. They will not take the insurance carrier's word without proper evidence. Trust, but verify.
California Insurance Code section 11580.2 subsection (a)(1) obligates the insurance carrier to offer uninsured motorist coverage. It also requires a written waiver of the insured when they do not want the coverage. An attorney must always request the written waiver when the carrier states that there is no UM coverage.
If the carrier cannot provide the written waiver with the client's signature, pursuant to subsection (p)(7), uninsured motorist coverage will exist for the insured. It enables the insured to recover a settlement to pay for medical bills and pain and suffering.
If you, or someone you know, has been involved in an accident with an uninsured motorist, contact an experienced attorney. He or she may be able to obtain UM coverage despite an insurance carrier's assertions that no UM coverage applies.
Showing posts with label Personal Injury Law. Show all posts
Showing posts with label Personal Injury Law. Show all posts
Sunday, June 26, 2016
Sunday, May 29, 2016
Managing Client Expectations in an Injury Case
A client is similar to a screenwriter. They have fantastical ideas, which turn into grandeur images in their head. Most of those ideas involve unrealistic expectations as to what the true value of their case is. For some reason they believe that an accident claim is a ticket to retirement. Most often, it is not.
Managing client expectations is not only important for the client, it is important for the attorney. For one, an attorney should never create a false impression. Controlling the narrative of what to expect will help an attorney remain disciplined in how he or she communicates with clients. Two, relationships are the foundation of a good law practice. One relies on referrals to survive. A happy client, which means a client who is not surprised with a result of a case, will refer family and friends in the future.
Communicating to the client about the value of his or her case can be difficult. Case value is subjective. That is why claims are fought over in litigation. As one may guess, the defense will value the case less than the plaintiff, and vice versa.
But evaluating a case can also hinge on objective factors. Any case has value when there are damages that can be proven. Damages can be shown via medical bills, lost earnings, etc. A bigger case may involve more medical bills because the accident required significant treatment. For example, if a plaintiff broke both legs, he or she will have higher medical bills than a person who only suffered whiplash (although many whiplash clients experience horrible nerve pain, which affects them for a lifetime). Indeed, the plaintiff with broken legs may not be able to work, while the whiplash plaintiff may continue on with work the very next day after the accident. Under the law, a plaintiff is compensated for those medical bills incurred and the earnings lost because of injury.
Other factors go into determining the value of a case. The reliability of the client will go a long way. Remember that the point of litigation is that both parties are satisfied with the case going to trial by jury. Each side is preparing for a jury trial, meaning that they are organizing when witnesses will testify, and what they will testify to. A client who comes across well-liked, truthful, sympathetic, and aggrieved will increase the value of a case. An attorney does not want a client who will testify poorly in front of a jury.
Putting all of the pieces together and telling a client what a case should settle for remains a risk. The judgment, or arbitration award, or agreed mediation proposal, could be lower than what was communicated. That is why an attorney should give a range, beginning with the worst case scenario (we could lose!) to the best case scenario (the best case scenario should be lower than what you actually think the best case scenario is). More importantly, the attorney should clearly communicate that it is an experienced guess but not a guaranteed opinion. Nothing in personal injury law is guaranteed. If someone tells you different, I would speak with someone else.
Always consult with an experienced injury attorney after an accident. An attorney should not only manage expectations, they should give you, or a loved one, peace of mind.
Managing client expectations is not only important for the client, it is important for the attorney. For one, an attorney should never create a false impression. Controlling the narrative of what to expect will help an attorney remain disciplined in how he or she communicates with clients. Two, relationships are the foundation of a good law practice. One relies on referrals to survive. A happy client, which means a client who is not surprised with a result of a case, will refer family and friends in the future.
Communicating to the client about the value of his or her case can be difficult. Case value is subjective. That is why claims are fought over in litigation. As one may guess, the defense will value the case less than the plaintiff, and vice versa.
But evaluating a case can also hinge on objective factors. Any case has value when there are damages that can be proven. Damages can be shown via medical bills, lost earnings, etc. A bigger case may involve more medical bills because the accident required significant treatment. For example, if a plaintiff broke both legs, he or she will have higher medical bills than a person who only suffered whiplash (although many whiplash clients experience horrible nerve pain, which affects them for a lifetime). Indeed, the plaintiff with broken legs may not be able to work, while the whiplash plaintiff may continue on with work the very next day after the accident. Under the law, a plaintiff is compensated for those medical bills incurred and the earnings lost because of injury.
Other factors go into determining the value of a case. The reliability of the client will go a long way. Remember that the point of litigation is that both parties are satisfied with the case going to trial by jury. Each side is preparing for a jury trial, meaning that they are organizing when witnesses will testify, and what they will testify to. A client who comes across well-liked, truthful, sympathetic, and aggrieved will increase the value of a case. An attorney does not want a client who will testify poorly in front of a jury.
Putting all of the pieces together and telling a client what a case should settle for remains a risk. The judgment, or arbitration award, or agreed mediation proposal, could be lower than what was communicated. That is why an attorney should give a range, beginning with the worst case scenario (we could lose!) to the best case scenario (the best case scenario should be lower than what you actually think the best case scenario is). More importantly, the attorney should clearly communicate that it is an experienced guess but not a guaranteed opinion. Nothing in personal injury law is guaranteed. If someone tells you different, I would speak with someone else.
Always consult with an experienced injury attorney after an accident. An attorney should not only manage expectations, they should give you, or a loved one, peace of mind.
Tuesday, March 29, 2016
Mediation and Alternative Dispute Resolutions in Motor Vehicle Accidents
After a motor vehicle accident, or other type of injury claim, there is a process that is routinely followed before there is formal litigation. In other words, a person does not sue the very next day after he or she is injured as the result of a negligent party. Because of liability insurance, there is an opportunity to settle a claim short of a lawsuit.
Settlement negotiations do not need to be formal. Indeed, opposing counsel can call the other side at any time to make an offer to settle. Other times, a claim may be ripe for mediation.
Mediation is a form of alternative dispute resolution. Due to congestion at the courts, and the long wait for a trial date (in central Los Angeles, the Superior Court will set a trial date two years from the date of filing), parties are using mediation, and other types of alternative dispute resolution. In fact, it is used frequently in motor vehicle accident cases. Plaintiff attorneys, defense attorneys, and insurance carriers see the value in using mediation before trial.
In a mediation, a neutral party (often a former judge) sits with the plaintiff and the defendant. The neutral is trained to facilitate a mutually beneficial result for both sides. Each mediator has a different style, but the basics remain the same. It is a voluntary process in which both parties agree to come together for the purpose of trying to reach a settlement. It is non-binding, and if one party does not want to settle at mediation, the claim can continue onto trial, or litigation, whatever stage of the case the claim may be in.
Costs of mediation are typically split between the two sides, but sometimes a persuasive plaintiff attorney can have the defense pay on behalf of the plaintiff. Anything said during the mediation is said pursuant to Evidence Code section 1152, meaning that it cannot be used against the party later on at trial, if there is not a settlement reached. Thus, each side can speak frankly and informally about the strengths and weaknesses of their respective cases.
There are a number of different mediation methods available. Parties can pay and use a professional mediation service. Sometimes the local court will have a free mediator (volunteer who wants to help) available to the parties. Alternatively, parties can use an independent attorney who also happens to mediate cases. Generally speaking, mediation is provided by a range of different providers.
Mediation can be extremely helpful in allowing the insurance adjuster put a face on the claimant. Often it is difficult to understand the severity of an injury until you see and hear it from the injured party himself/herself! Mediation allows the plaintiff to tell his/her particular story as only the plaintiff can.
If you or someone you know has an injury claim, speak with an experienced attorney to determine whether mediation would be beneficial.
Settlement negotiations do not need to be formal. Indeed, opposing counsel can call the other side at any time to make an offer to settle. Other times, a claim may be ripe for mediation.
Mediation is a form of alternative dispute resolution. Due to congestion at the courts, and the long wait for a trial date (in central Los Angeles, the Superior Court will set a trial date two years from the date of filing), parties are using mediation, and other types of alternative dispute resolution. In fact, it is used frequently in motor vehicle accident cases. Plaintiff attorneys, defense attorneys, and insurance carriers see the value in using mediation before trial.
In a mediation, a neutral party (often a former judge) sits with the plaintiff and the defendant. The neutral is trained to facilitate a mutually beneficial result for both sides. Each mediator has a different style, but the basics remain the same. It is a voluntary process in which both parties agree to come together for the purpose of trying to reach a settlement. It is non-binding, and if one party does not want to settle at mediation, the claim can continue onto trial, or litigation, whatever stage of the case the claim may be in.
Costs of mediation are typically split between the two sides, but sometimes a persuasive plaintiff attorney can have the defense pay on behalf of the plaintiff. Anything said during the mediation is said pursuant to Evidence Code section 1152, meaning that it cannot be used against the party later on at trial, if there is not a settlement reached. Thus, each side can speak frankly and informally about the strengths and weaknesses of their respective cases.
There are a number of different mediation methods available. Parties can pay and use a professional mediation service. Sometimes the local court will have a free mediator (volunteer who wants to help) available to the parties. Alternatively, parties can use an independent attorney who also happens to mediate cases. Generally speaking, mediation is provided by a range of different providers.
Mediation can be extremely helpful in allowing the insurance adjuster put a face on the claimant. Often it is difficult to understand the severity of an injury until you see and hear it from the injured party himself/herself! Mediation allows the plaintiff to tell his/her particular story as only the plaintiff can.
If you or someone you know has an injury claim, speak with an experienced attorney to determine whether mediation would be beneficial.
Friday, February 19, 2016
Knowing the Risks of Litigation
Not every case is a winner. The nature of litigation implies that there is a irreconcilable issue of dispute that exists between two rational persons. Only when a neutral, or judicial officer, weighs in does it become clear that the law favors one of the two. That being said, it is important for plaintiffs to know the risks of going forward with a lawsuit.
There are plenty of risks. Before I get into the procedural and legal risks, let's discuss the financial risks. Clients, typically, are responsible for the costs of litigation. Costs are not fees (fees are contingent in almost all personal injury cases). Costs include: postage, medical record copy charges, investigation, experts, filing fees, and other court costs. Attorneys will routinely front the costs, and reimburse themselves from the settlement, but if a case is lost, clients could be liable.
Besides the out of pocket costs that could accrue during litigation, there is also the opportunity costs. Litigation can be time-consuming. A plaintiff may have to miss work. She or he may have to prioritize a deposition ahead of a family obligation. Such realities need to be considered by a plaintiff before they are prepared to move forward.
Now to some of the legal risks. A case may not have the best facts, meaning that the evidence may be weak for the plaintiff. For example, although the plaintiff asserts that the defendant ran the red light, there may be five independent witnesses who claim that the plaintiff was the one who ran the red light! In a situation like above, a defendant may utilize the law to his favor. Let me explain.
In California, a defendant may utilize a statutory scheme intended to encourage settlement discussions. California Code of Civil Procedure ("CCP") section 998 allows defendants to make an offer of settlement with conditions. Pursuant to CCP 998, a defendant can incentivize the plaintiff to accept an offer, or face the potential risk of having to pay the defendant's costs and expert fees. An example is illustrative:
Defendant does not believe that he ran the red light. He thinks it was the plaintiff. Plaintiff is certain that it was the defendant, and is demanding a payment of $50,000 for damages incurred. Prior to trial, Defendant makes a CCP 998 offer to settle for $5,000. Plaintiff rejects it. Trial occurs, and the jury awards plaintiff $4,000 in damages. Because the award from the jury is less than the CCP 998 offer, defendant may recover his costs, and expert fees. Defendant's costs and expert fees are $23,000. Now, the plaintiff owes the defendant $9,000 (difference between the jury award, and the CCP 998 award).
In some cases, the plaintiff has no chance of winning! In those rare cases, when an attorney is usually not retained, and the plaintiff is pro per, there is the added risk of malicious prosecution. Malicious prosecution is a tort that the defendant can assert after the initial case is decided in the defendant's favor. It is a lawsuit against the plaintiff for having brought a frivolous lawsuit. It could potentially cost the plaintiff thousands of dollars.
Every case is different, and some cases involve very little risk (a simple rear-end collision with substantial property damage and visible injuries). However, it is important for individuals to consult with an experienced attorney so that he or she may know the risks, if any, before proceeding forward with a lawsuit.
There are plenty of risks. Before I get into the procedural and legal risks, let's discuss the financial risks. Clients, typically, are responsible for the costs of litigation. Costs are not fees (fees are contingent in almost all personal injury cases). Costs include: postage, medical record copy charges, investigation, experts, filing fees, and other court costs. Attorneys will routinely front the costs, and reimburse themselves from the settlement, but if a case is lost, clients could be liable.
Besides the out of pocket costs that could accrue during litigation, there is also the opportunity costs. Litigation can be time-consuming. A plaintiff may have to miss work. She or he may have to prioritize a deposition ahead of a family obligation. Such realities need to be considered by a plaintiff before they are prepared to move forward.
Now to some of the legal risks. A case may not have the best facts, meaning that the evidence may be weak for the plaintiff. For example, although the plaintiff asserts that the defendant ran the red light, there may be five independent witnesses who claim that the plaintiff was the one who ran the red light! In a situation like above, a defendant may utilize the law to his favor. Let me explain.
In California, a defendant may utilize a statutory scheme intended to encourage settlement discussions. California Code of Civil Procedure ("CCP") section 998 allows defendants to make an offer of settlement with conditions. Pursuant to CCP 998, a defendant can incentivize the plaintiff to accept an offer, or face the potential risk of having to pay the defendant's costs and expert fees. An example is illustrative:
Defendant does not believe that he ran the red light. He thinks it was the plaintiff. Plaintiff is certain that it was the defendant, and is demanding a payment of $50,000 for damages incurred. Prior to trial, Defendant makes a CCP 998 offer to settle for $5,000. Plaintiff rejects it. Trial occurs, and the jury awards plaintiff $4,000 in damages. Because the award from the jury is less than the CCP 998 offer, defendant may recover his costs, and expert fees. Defendant's costs and expert fees are $23,000. Now, the plaintiff owes the defendant $9,000 (difference between the jury award, and the CCP 998 award).
In some cases, the plaintiff has no chance of winning! In those rare cases, when an attorney is usually not retained, and the plaintiff is pro per, there is the added risk of malicious prosecution. Malicious prosecution is a tort that the defendant can assert after the initial case is decided in the defendant's favor. It is a lawsuit against the plaintiff for having brought a frivolous lawsuit. It could potentially cost the plaintiff thousands of dollars.
Every case is different, and some cases involve very little risk (a simple rear-end collision with substantial property damage and visible injuries). However, it is important for individuals to consult with an experienced attorney so that he or she may know the risks, if any, before proceeding forward with a lawsuit.
Saturday, December 19, 2015
Plaintiff's Motions in Limine Prior to an Injury Accident Trial
The purpose of a lawsuit is to afford parties an opportunity to resolve disputes before a tribunal. Litigation has its benefits. For one, the force of law controls. A party cannot ignore procedural rules without facing sanctions. Two, the result will be binding. A judgement from a court of law will be enforced. Finally, three, parties can have their day in court.
Lawsuits rarely result in a trial by jury, however. Most cases are resolved short of trial -- by way of mediation, or by settlement negotiated by the attorneys. Nevertheless, a trial attorney should treat every case as if it is going to trial. This mindset will help maximize the case value.
Part of preparing for trial lies in procedural strategies. One such strategy is controlling the evidence admitted during the trial. Motions, or requests to the judge, can be made before the jury is impaneled. Motions in limine are made to exclude certain evidence from being heard by the jury. There are a few motions in limine that should be considered in every case.
"Character evidence," or evidence of a person's past conduct unrelated to the case, is not allowed. Thus, if a plaintiff has been involved in prior lawsuits, or had been found at fault in another case, a motion should be made to protect the plaintiff. A jury may consider "character evidence" as evidence to prove conduct in the relevant case. The law prohibits that line of thinking. The present evidence should be considered alone without the information of what may or may not have happened in a separate case.
Another popular motion limits the ability of the defendant to introduce evidence not already disclosed to the plaintiff. During pre-trial litigation, discovery is completed by both sides. When a party responds to discovery, they should be held to their responses. New or contradictory evidence can be excluded with a motion in limine. For example, a defendant will assert his defense contentions during discovery. Let's say Danny the Defendant stated in his response to an interrogatory that he was not negligent because the plaintiff ran a red light. During trial though, Danny the Defendant tries to testify that he was not negligent because the signal was defective. His testimony can be excluded because it is inconsistent with his discovery response.
Motions in limine regarding experts are common as well. Medical experts are utilized in almost every motor vehicle accident case. In order for the plaintiff to prove damages, it is helpful to have a doctor discuss the plaintiff's medical treatment, and future medical treatment that may be necessary. It gives the jury information about the extent of money that has been spent or will have to be spent.
A plaintiff attorney should anticipate the content of the defendant's medical expert's opinions. An expert must disclose all of his opinions during a deposition when asked. If an expert tries to give a new or different opinion during trial, it could be devastating to the plaintiff's case. Thus, a motion in limine should be filed so that the defendant's expert's opinions are limited to the opinions given during deposition.
Trial results are unpredictable. Juries have been known to surprise attorneys. It is important, then, for attorneys to do everything in their power to control the process. Motions in limine are one way of giving the plaintiff an opportunity to win.
Lawsuits rarely result in a trial by jury, however. Most cases are resolved short of trial -- by way of mediation, or by settlement negotiated by the attorneys. Nevertheless, a trial attorney should treat every case as if it is going to trial. This mindset will help maximize the case value.
Part of preparing for trial lies in procedural strategies. One such strategy is controlling the evidence admitted during the trial. Motions, or requests to the judge, can be made before the jury is impaneled. Motions in limine are made to exclude certain evidence from being heard by the jury. There are a few motions in limine that should be considered in every case.
"Character evidence," or evidence of a person's past conduct unrelated to the case, is not allowed. Thus, if a plaintiff has been involved in prior lawsuits, or had been found at fault in another case, a motion should be made to protect the plaintiff. A jury may consider "character evidence" as evidence to prove conduct in the relevant case. The law prohibits that line of thinking. The present evidence should be considered alone without the information of what may or may not have happened in a separate case.
Another popular motion limits the ability of the defendant to introduce evidence not already disclosed to the plaintiff. During pre-trial litigation, discovery is completed by both sides. When a party responds to discovery, they should be held to their responses. New or contradictory evidence can be excluded with a motion in limine. For example, a defendant will assert his defense contentions during discovery. Let's say Danny the Defendant stated in his response to an interrogatory that he was not negligent because the plaintiff ran a red light. During trial though, Danny the Defendant tries to testify that he was not negligent because the signal was defective. His testimony can be excluded because it is inconsistent with his discovery response.
Motions in limine regarding experts are common as well. Medical experts are utilized in almost every motor vehicle accident case. In order for the plaintiff to prove damages, it is helpful to have a doctor discuss the plaintiff's medical treatment, and future medical treatment that may be necessary. It gives the jury information about the extent of money that has been spent or will have to be spent.
A plaintiff attorney should anticipate the content of the defendant's medical expert's opinions. An expert must disclose all of his opinions during a deposition when asked. If an expert tries to give a new or different opinion during trial, it could be devastating to the plaintiff's case. Thus, a motion in limine should be filed so that the defendant's expert's opinions are limited to the opinions given during deposition.
Trial results are unpredictable. Juries have been known to surprise attorneys. It is important, then, for attorneys to do everything in their power to control the process. Motions in limine are one way of giving the plaintiff an opportunity to win.
Friday, November 20, 2015
What is a Settlement in a Personal Injury Case?
Personal injury lawyers like to spit out legal terms. "We sent the defense a 998 offer to compromise." "I warned the Plaintiff's attorneys that I will have to file a MSJ." "Before the CMC, I need to run down to central to file an Oppo." I know. It can get confusing.
Some terms like "settlement" are widely recognized, but the mechanics of a settlement in a personal injury context is not well known. This blog post will go over a "settlement" in greater detail.
A settlement can occur prior to, during, or after a lawsuit is filed. Most motor vehicle accidents, for example, involve automobile insurance. When a person is injured as the result of another motorist, he or she will make a claim with the automobile insurance of the other motorist.
Once the insurance is involved, a claim could be "settled" before a lawsuit is filed. A civil lawsuit can be filed when there exists a "cause of action" against another individual, or entity. "Negligence" is the cause of action most utilized in automobile accidents. The other driver may have ran a red light, and thus been negligent. The negligence resulted in injuries to the plaintiff, who filed the lawsuit against the driver who ran the red light -- and the bad driver then becomes the defendant in the lawsuit.
But again, it might not be necessary to file a lawsuit. The negligent driver's insurance will contact the injured person to try to "settle" the claim. A number of factors go into the decision of when it is appropriate to settle a claim. Experienced attorneys can advise on when a settlement would be prudent.
As an illustration, let's say that it makes sense for the claimant to settle a claim. The other driver has no assets; he also has a low policy limit, $15,000 in bodily injury liability. So far, the claimant has over $8,000 in medical damages, and continues to experience excruciating pain. The insurance company, recognizing that the claim likely exceeds $15,000, offers to "settle" the claim for the policy limit of $15,000. Claimant accepts. What happens?
Well, the claimant must execute a release of all claims against the negligent driver, in exchange for a sum of money, which was in this hypothetical $15,000. A release prevents the claimant from filing a lawsuit against the negligent driver. No lawsuit was filed, but a "settlement" was reached.
After a lawsuit has been filed, "settlements" get a little more complicated. Automobile insurance will always provides liability coverage for a negligent driver. Insurance also pays for the cost of litigation, meaning that: if the negligent driver is sued, the insurer will pay an attorney to defend the negligent driver in the lawsuit.
Therefore, a settlement will involve a new party once a lawsuit has been filed: the defense attorney. The defense attorney represents the negligent driver, but answers to the insurance company. Once a defense attorney reaches an agreement with the plaintiff's attorney (and is authorized by the client), a few things must be done before settlement.
The defense attorney, or plaintiff's attorney, must file a "Notice of Settlement" with the court. This ensures that future court dates are vacated. Then, a release is executed, which, as explained above, will be a payment in exchange for the plaintiff to forfeit his cause of action against the negligent driver. Once payment has been satisfied, the plaintiff will file a "Request for Dismissal with Prejudice." Once a dismissal has been filed, the case is closed forever.
Settlements will always involve consideration, something in exchange for something else. Predominantly it is a sum of money in exchange for the injured party to forego pursuing money from the negligent party. It can occur at different stages of a claim, and will require different steps, but it will always result in the conclusion of a case.
Before you, a friend, or loved one settles a claim, it is important to contact an attorney to seek advice. One should not be quick to rush to a decision.
Some terms like "settlement" are widely recognized, but the mechanics of a settlement in a personal injury context is not well known. This blog post will go over a "settlement" in greater detail.
A settlement can occur prior to, during, or after a lawsuit is filed. Most motor vehicle accidents, for example, involve automobile insurance. When a person is injured as the result of another motorist, he or she will make a claim with the automobile insurance of the other motorist.
Once the insurance is involved, a claim could be "settled" before a lawsuit is filed. A civil lawsuit can be filed when there exists a "cause of action" against another individual, or entity. "Negligence" is the cause of action most utilized in automobile accidents. The other driver may have ran a red light, and thus been negligent. The negligence resulted in injuries to the plaintiff, who filed the lawsuit against the driver who ran the red light -- and the bad driver then becomes the defendant in the lawsuit.
But again, it might not be necessary to file a lawsuit. The negligent driver's insurance will contact the injured person to try to "settle" the claim. A number of factors go into the decision of when it is appropriate to settle a claim. Experienced attorneys can advise on when a settlement would be prudent.
As an illustration, let's say that it makes sense for the claimant to settle a claim. The other driver has no assets; he also has a low policy limit, $15,000 in bodily injury liability. So far, the claimant has over $8,000 in medical damages, and continues to experience excruciating pain. The insurance company, recognizing that the claim likely exceeds $15,000, offers to "settle" the claim for the policy limit of $15,000. Claimant accepts. What happens?
Well, the claimant must execute a release of all claims against the negligent driver, in exchange for a sum of money, which was in this hypothetical $15,000. A release prevents the claimant from filing a lawsuit against the negligent driver. No lawsuit was filed, but a "settlement" was reached.
After a lawsuit has been filed, "settlements" get a little more complicated. Automobile insurance will always provides liability coverage for a negligent driver. Insurance also pays for the cost of litigation, meaning that: if the negligent driver is sued, the insurer will pay an attorney to defend the negligent driver in the lawsuit.
Therefore, a settlement will involve a new party once a lawsuit has been filed: the defense attorney. The defense attorney represents the negligent driver, but answers to the insurance company. Once a defense attorney reaches an agreement with the plaintiff's attorney (and is authorized by the client), a few things must be done before settlement.
The defense attorney, or plaintiff's attorney, must file a "Notice of Settlement" with the court. This ensures that future court dates are vacated. Then, a release is executed, which, as explained above, will be a payment in exchange for the plaintiff to forfeit his cause of action against the negligent driver. Once payment has been satisfied, the plaintiff will file a "Request for Dismissal with Prejudice." Once a dismissal has been filed, the case is closed forever.
Settlements will always involve consideration, something in exchange for something else. Predominantly it is a sum of money in exchange for the injured party to forego pursuing money from the negligent party. It can occur at different stages of a claim, and will require different steps, but it will always result in the conclusion of a case.
Before you, a friend, or loved one settles a claim, it is important to contact an attorney to seek advice. One should not be quick to rush to a decision.
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.
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.
Friday, June 19, 2015
Uber Accidents After the Recent California Labor Commission Ruling
My wife and I use Uber all of the time. It's great. One does not have to worry about parking or drinking and driving. The service is convenient and easy to use. Ride-sharing technology has been great for consumers.
However, what happens when passengers are injured while riding in an Uber car? With a recent ruling from the California Labor Commission, plaintiffs may benefit. The California Labor Commission found that Uber drivers are employees, not independent contractors. An employee classification for its drivers will mean a number of different things for Uber, including how it deals with injury accident claims.
Under California law, a legal doctrine called "Respondeat Superior" (I know, lawyers love Latin) holds employers responsible for the negligent acts of their employees. Given certain elements must be met, i.e. the Uber driver must have been working at the time of the accident, nevertheless, this ruling will allow injured parties to proceed against Uber directly.
Further, Uber will have to carry $1 million in liability insurance for its drivers. The insurance policy will be excess to the driver, meaning that the driver's own automobile insurance will be primary in the event of a claim. An injured party will first have to recover the policy limit from the Uber driver before he or she can recover from the Uber $1 million policy (not all injuries are serious enough to warrant a claim against an excess insurance policy).
Catastrophic accidents routinely pose difficulties for plaintiffs because there are insufficient policy limits. For example, an injured party may lose the use of his or her legs, but only be able to pursue the defendant's liability insurance, which has a limit of $15,000. In the described hypothetical, the injured party will have to bear great costs, including all disability bills. Should a plaintiff be involved in a catastrophic accident with Uber, this ruling will ensure larger limits, and potentially provide greater protections for the plaintiff.
Finally, the issue of agency, or independent contractor v. employee, is still is being litigated. Uber has pending lawsuits with both state and federal courts in California. While the Labor Commission is a set back for Uber, and a win for consumers, nothing is certain, or settled, at this point.
However, what happens when passengers are injured while riding in an Uber car? With a recent ruling from the California Labor Commission, plaintiffs may benefit. The California Labor Commission found that Uber drivers are employees, not independent contractors. An employee classification for its drivers will mean a number of different things for Uber, including how it deals with injury accident claims.
Under California law, a legal doctrine called "Respondeat Superior" (I know, lawyers love Latin) holds employers responsible for the negligent acts of their employees. Given certain elements must be met, i.e. the Uber driver must have been working at the time of the accident, nevertheless, this ruling will allow injured parties to proceed against Uber directly.
Further, Uber will have to carry $1 million in liability insurance for its drivers. The insurance policy will be excess to the driver, meaning that the driver's own automobile insurance will be primary in the event of a claim. An injured party will first have to recover the policy limit from the Uber driver before he or she can recover from the Uber $1 million policy (not all injuries are serious enough to warrant a claim against an excess insurance policy).
Catastrophic accidents routinely pose difficulties for plaintiffs because there are insufficient policy limits. For example, an injured party may lose the use of his or her legs, but only be able to pursue the defendant's liability insurance, which has a limit of $15,000. In the described hypothetical, the injured party will have to bear great costs, including all disability bills. Should a plaintiff be involved in a catastrophic accident with Uber, this ruling will ensure larger limits, and potentially provide greater protections for the plaintiff.
Finally, the issue of agency, or independent contractor v. employee, is still is being litigated. Uber has pending lawsuits with both state and federal courts in California. While the Labor Commission is a set back for Uber, and a win for consumers, nothing is certain, or settled, at this point.
Friday, May 22, 2015
Are You An Eggshell Plaintiff?
Not everyone is alike. Indeed, that is what makes society so interesting. Los Angeles is comprised of artists, athletes, professionals, skilled workers, and educators. Personalities vary. Some are outgoing and eccentric, others are introverted. People from all different types of backgrounds, and ethnicity, make up the community that we live in.
Similarly, not all injured parties are the same. Regardless, under the law, a defendant is liable for all injuries caused, even if the plaintiff is more susceptible to injury than the average person. You "take the victim as you find him or her." So, if a plaintiff is hypersensitive or predisposed to injury, the defendant may be out of luck.
This doctrine is referred to as the "Eggshell Plaintiff" Rule. The foundations of the principle lie in common law. The Eggshell name originates in the following hypothetical (which has been changed slightly):
Danny Defendant is speeding and drinking a glass of wine while he drives down Ventura Boulevard. Pennny Plaintiff is stopped at a red light 20 feet in front of Danny Defendant. As Danny Defendant approaches, he doesn't have enough time to apply the brakes. Penny Plaintiff screams as she sees Danny Defendant's car quickly advancing. Sure enough, Danny Defendant's car rear ends Penny Plaintiff's vehicle. Unfortunately for both Danny Defendant and Penny Plaintiff, Penny Plaintiff has an eggshell skull. The slightest pressure on her skull can cause it to fracture. When Penny Plaintiff's vehicle was violently struck from behind, her head hit the steering wheel, which resulted in a severe skull fracture. All of the doctors consulted after the accident said that no other person would have suffered a skull fracture; it is only because Penny Plaintiff had an eggshell skull. Nevertheless, Danny Defendant will have to pay for all damages related to the fracture, which is the full extent of Penny Plaintiff's injuries.
California has a jury instruction available should a Eggshell Plaintiff case go to trial. California Civil Jury Instruction (CACI) 3927 provides:
"Plaintiff is not entitled to damages for any physical or emotional condition that he or she had before Defendant's conduct occurred. However, if Plaintiff had a physical or emotional condition that was made worse by Defendant's conduct, you must award damages that will reasonably and fairly compensate him or her for the effect on that condition."
A lot of cases that have been filed in a court of law will involve discovery. During discovery, it is common for defense attorneys to ask about "preexisting conditions" or prior accidents. A defendant will not be liable for injuries that existed before the accident. But, the defendant will be liable if the prior injuries of plaintiff are aggravated by the negligent conduct of defendant. Thus, it is important to determine whether a plaintiff has suffered an aggravation or if the injury was not related to the negligence of the particular incident.
In a nutshell, all eggshell readers need not worry. Should you be involved in an accident, the defendant or at-fault party will be responsible for all injuries incurred, even it is quite unusual.
Similarly, not all injured parties are the same. Regardless, under the law, a defendant is liable for all injuries caused, even if the plaintiff is more susceptible to injury than the average person. You "take the victim as you find him or her." So, if a plaintiff is hypersensitive or predisposed to injury, the defendant may be out of luck.
This doctrine is referred to as the "Eggshell Plaintiff" Rule. The foundations of the principle lie in common law. The Eggshell name originates in the following hypothetical (which has been changed slightly):
Danny Defendant is speeding and drinking a glass of wine while he drives down Ventura Boulevard. Pennny Plaintiff is stopped at a red light 20 feet in front of Danny Defendant. As Danny Defendant approaches, he doesn't have enough time to apply the brakes. Penny Plaintiff screams as she sees Danny Defendant's car quickly advancing. Sure enough, Danny Defendant's car rear ends Penny Plaintiff's vehicle. Unfortunately for both Danny Defendant and Penny Plaintiff, Penny Plaintiff has an eggshell skull. The slightest pressure on her skull can cause it to fracture. When Penny Plaintiff's vehicle was violently struck from behind, her head hit the steering wheel, which resulted in a severe skull fracture. All of the doctors consulted after the accident said that no other person would have suffered a skull fracture; it is only because Penny Plaintiff had an eggshell skull. Nevertheless, Danny Defendant will have to pay for all damages related to the fracture, which is the full extent of Penny Plaintiff's injuries.
California has a jury instruction available should a Eggshell Plaintiff case go to trial. California Civil Jury Instruction (CACI) 3927 provides:
"Plaintiff is not entitled to damages for any physical or emotional condition that he or she had before Defendant's conduct occurred. However, if Plaintiff had a physical or emotional condition that was made worse by Defendant's conduct, you must award damages that will reasonably and fairly compensate him or her for the effect on that condition."
A lot of cases that have been filed in a court of law will involve discovery. During discovery, it is common for defense attorneys to ask about "preexisting conditions" or prior accidents. A defendant will not be liable for injuries that existed before the accident. But, the defendant will be liable if the prior injuries of plaintiff are aggravated by the negligent conduct of defendant. Thus, it is important to determine whether a plaintiff has suffered an aggravation or if the injury was not related to the negligence of the particular incident.
In a nutshell, all eggshell readers need not worry. Should you be involved in an accident, the defendant or at-fault party will be responsible for all injuries incurred, even it is quite unusual.
Saturday, March 21, 2015
Suing a DUI Driver for Personal Injury
Although I represent DUI defendants, and have been successful in dismissing a DUI criminal charge, there are times when a DUI can result in an accident where there is a victim. According to Mothers Against Drunk Driving, hundreds of individuals die each year from an accident involving a drunk driver. When an individual is injured in a motor vehicle accident because of the negligence of a drunk driver, he or she can pursue a civil claim.
Typically there will be a criminal proceeding against the alleged drunk driver. A restitution hearing may even take place. But, injured parties can also initiate their own civil claims. There is no requirement to wait for the criminal case to be completed, or even filed. However, a criminal conviction could positively impact the civil case, as the burden in a civil proceeding is much lower -- proof by a preponderance of the evidence, not proof beyond a reasonable doubt.
It is important to consult with a personal injury attorney after one has been injured as the result of a DUI driver. An attorney can investigate immediately, and determine whether there are other defendants besides the driver. Negligence may be apportioned to different individuals, or entities. Sometimes the accident could have been prevented had someone exercised good judgment and prevented the intoxicated person from driving.
A negligence cause of action could also be pursued against a bar, nightclub, or restaurant. Legislators have passed laws obligating operators of drinking establishments to use reasonable judgment when serving alcohol to its patrons. When a bartender keeps serving drinks to an intoxicated person when the bartender knew or should have known that the person was intoxicated, the bar could be held liable for the actions of that intoxicated person if he or she causes an accident later.
Similarly, hosts of parties can also be held liable for the negligence of a drunk guest. A party host cannot keep serving drinks to a guest who appears inebriated. Steps need to be taken by hosts to ensure that their guests do not harm others, especially when there are so many different opportunities to prevent a drunk driving incident.
Of course the driver may be sued, and his or her own insurance will need to be notified. The important thing is that in a DUI incident resulting in injuries, there are ways to be made whole again. Vehicle repair costs, medical bills, pain and suffering, and lost wages are all damages that can be claimed. If you or someone you know has been a victim of a drunk driving incident, call an experienced attorney.
Typically there will be a criminal proceeding against the alleged drunk driver. A restitution hearing may even take place. But, injured parties can also initiate their own civil claims. There is no requirement to wait for the criminal case to be completed, or even filed. However, a criminal conviction could positively impact the civil case, as the burden in a civil proceeding is much lower -- proof by a preponderance of the evidence, not proof beyond a reasonable doubt.
It is important to consult with a personal injury attorney after one has been injured as the result of a DUI driver. An attorney can investigate immediately, and determine whether there are other defendants besides the driver. Negligence may be apportioned to different individuals, or entities. Sometimes the accident could have been prevented had someone exercised good judgment and prevented the intoxicated person from driving.
A negligence cause of action could also be pursued against a bar, nightclub, or restaurant. Legislators have passed laws obligating operators of drinking establishments to use reasonable judgment when serving alcohol to its patrons. When a bartender keeps serving drinks to an intoxicated person when the bartender knew or should have known that the person was intoxicated, the bar could be held liable for the actions of that intoxicated person if he or she causes an accident later.
Similarly, hosts of parties can also be held liable for the negligence of a drunk guest. A party host cannot keep serving drinks to a guest who appears inebriated. Steps need to be taken by hosts to ensure that their guests do not harm others, especially when there are so many different opportunities to prevent a drunk driving incident.
Of course the driver may be sued, and his or her own insurance will need to be notified. The important thing is that in a DUI incident resulting in injuries, there are ways to be made whole again. Vehicle repair costs, medical bills, pain and suffering, and lost wages are all damages that can be claimed. If you or someone you know has been a victim of a drunk driving incident, call an experienced attorney.
Saturday, February 21, 2015
Pursuing a Homeowners Insurance Claim
There are insurance policies for almost everything. Californians know that celebrities hold insurance policies to their own body parts even. Automobile insurance is the most familiar, but there is also homeowners insurance, which is also well known. Home-buyers are sometimes required to purchase homeowners insurance before they can move in.
Homeowners insurance covers a wide variety of different events. Fires, floods, theft, and dog bites are just a few. Both liability (coverage for negligence of the homeowner) and losses (damages that homeowners incur) are covered. There are exclusions and exceptions. Delays, denials, and confusion can be anticipated.
Every policy is different; attorneys can assist in pursuing a first party claim, particularly if the insurance company has issued a denial. A first party claim is when a policyholder pursues a claim pursuant to the policy purchased. For example, a first party claim could be made when a home is burglarized, and there is a provision that covers items stolen.
Since insurance law is based on case law, statutes, and regulations, there are a myriad of ways a policy can be interpreted. It is important, however, to know some basic principles. Here is a non-exhaustive short list:
1) Once a claim is reported, the insurance carrier must provide basic information to the policyholder -- like limits, benefits, coverages, exclusions, and other provisions in the specific policy in place.
2) An insurer must explain why a claim has been denied, and provide a basis for that decision. For example, if a claim was denied because the insurer did not have an opportunity to inspect the premises, it would have to show that a request was made and the request was denied.
3) Before an insurance carrier can ask for a "release," it must explain the legal consequences of having the claimant execute the release, i.e. forever barring the claimant from pursuing the claim further in court, or in arbitration.
4) The insurer must respond within 15 days if a claimant asks for information related to his or her claim. An insurer cannot ignore its own insured.
5) All insurance companies must investigate a claim with diligence, thoroughness, and in good faith. The insurer cannot delay a claim when there is sufficient, reasonable information to conclude the claim.
Pursuing a homeowners insurance claim can be daunting. It is important to know your rights and to be aggressive. It is extremely wise to contact an experienced attorney.
Homeowners insurance covers a wide variety of different events. Fires, floods, theft, and dog bites are just a few. Both liability (coverage for negligence of the homeowner) and losses (damages that homeowners incur) are covered. There are exclusions and exceptions. Delays, denials, and confusion can be anticipated.
Every policy is different; attorneys can assist in pursuing a first party claim, particularly if the insurance company has issued a denial. A first party claim is when a policyholder pursues a claim pursuant to the policy purchased. For example, a first party claim could be made when a home is burglarized, and there is a provision that covers items stolen.
Since insurance law is based on case law, statutes, and regulations, there are a myriad of ways a policy can be interpreted. It is important, however, to know some basic principles. Here is a non-exhaustive short list:
1) Once a claim is reported, the insurance carrier must provide basic information to the policyholder -- like limits, benefits, coverages, exclusions, and other provisions in the specific policy in place.
2) An insurer must explain why a claim has been denied, and provide a basis for that decision. For example, if a claim was denied because the insurer did not have an opportunity to inspect the premises, it would have to show that a request was made and the request was denied.
3) Before an insurance carrier can ask for a "release," it must explain the legal consequences of having the claimant execute the release, i.e. forever barring the claimant from pursuing the claim further in court, or in arbitration.
4) The insurer must respond within 15 days if a claimant asks for information related to his or her claim. An insurer cannot ignore its own insured.
5) All insurance companies must investigate a claim with diligence, thoroughness, and in good faith. The insurer cannot delay a claim when there is sufficient, reasonable information to conclude the claim.
Pursuing a homeowners insurance claim can be daunting. It is important to know your rights and to be aggressive. It is extremely wise to contact an experienced attorney.
Thursday, January 22, 2015
Premises Liability Cases
Motor vehicle accidents make up a large number of cases on the personal injury docket in Los Angeles. However, there are other common ways that plaintiffs can be injured. Unfortunately, people are sometimes hurt when they are a guest, or customer, on someone else's property.
Owners of property owe a duty to those individuals who enter onto their property. Owners must exercise ordinary care in the use, maintenance, and management of their property to avoid exposing people to unreasonable risks of harm. Unreasonable risks of harm could include: spills, broken stairs, ditches, banana peels, etc. These type of risks can occur naturally or artificially, meaning that it can be caused by untrimmed trees, or an employee neglecting his duties to clean. Either way owners can be held responsible for injuries.
If an owner does not exercise ordinary care, he or she may be liable if the harm caused by the lack of ordinary care is "foreseeable." For example, if an owner of a business does not repair a large hole located on the store's floor, and a customer falls in the hole and breaks his leg, the owner of the business would be held liable. It is "foreseeable" that a customer could fall into a large hole because it was not repaired. An example when negligence may not be found is when an extraordinary event caused the injury.
In the hypothetical above, it does not matter whether the owner was "actually" aware of the large hole. Owners can be held liable if they had "constructive knowledge." Constructive knowledge means that the owner should have been aware of the large hole because a reasonable prudent owner would have checked for large holes.
Although it is counter-intuitive, owners can be held liable for injuries to trespassers. Owners can also be held liable for injuries to guests even if the injuries were caused by a criminal. The plaintiff in such a case would have to show that the risk of criminal harm was foreseeable, and that the owner failed to take steps to prevent the foreseeable risk of criminal harm. One example: a large sports team holds a game. During the game, two drunk rivals threaten one another. "I will stab you when the game is over," one of them says. Two employees of the sports team overhear the exchange and witness the banter. After the game, the shouter stabs the rival, because nothing was done by the sports team employees.
Injuries incurred on a property can cost thousands of dollars in medical bills, particularly if there are broken bones involved. It is wise to contact a personal injury attorney if you, or someone you know, has been injured as a result of the negligence of a landowner. Our office welcomes your calls and inquiries.
Owners of property owe a duty to those individuals who enter onto their property. Owners must exercise ordinary care in the use, maintenance, and management of their property to avoid exposing people to unreasonable risks of harm. Unreasonable risks of harm could include: spills, broken stairs, ditches, banana peels, etc. These type of risks can occur naturally or artificially, meaning that it can be caused by untrimmed trees, or an employee neglecting his duties to clean. Either way owners can be held responsible for injuries.
If an owner does not exercise ordinary care, he or she may be liable if the harm caused by the lack of ordinary care is "foreseeable." For example, if an owner of a business does not repair a large hole located on the store's floor, and a customer falls in the hole and breaks his leg, the owner of the business would be held liable. It is "foreseeable" that a customer could fall into a large hole because it was not repaired. An example when negligence may not be found is when an extraordinary event caused the injury.
In the hypothetical above, it does not matter whether the owner was "actually" aware of the large hole. Owners can be held liable if they had "constructive knowledge." Constructive knowledge means that the owner should have been aware of the large hole because a reasonable prudent owner would have checked for large holes.
Although it is counter-intuitive, owners can be held liable for injuries to trespassers. Owners can also be held liable for injuries to guests even if the injuries were caused by a criminal. The plaintiff in such a case would have to show that the risk of criminal harm was foreseeable, and that the owner failed to take steps to prevent the foreseeable risk of criminal harm. One example: a large sports team holds a game. During the game, two drunk rivals threaten one another. "I will stab you when the game is over," one of them says. Two employees of the sports team overhear the exchange and witness the banter. After the game, the shouter stabs the rival, because nothing was done by the sports team employees.
Injuries incurred on a property can cost thousands of dollars in medical bills, particularly if there are broken bones involved. It is wise to contact a personal injury attorney if you, or someone you know, has been injured as a result of the negligence of a landowner. Our office welcomes your calls and inquiries.
Friday, December 19, 2014
Dog Bites and Strict Liability in California
We all love dogs. Well, most of us anyways. There is scientific evidence that supports that dogs are great mental health companions. Socially, they are important to a lot of dog owners' lives. Despite all of the love, dogs can also cause harm to individuals. Indeed, when I was young, and in Tennessee, a dog bit me. There were medical bills, and trauma that followed (even to this day at times).
Like other injury accidents, an owner of a dog can be sued for a dog bite. Under the common law, or laws developed through a number of cases, dog owners were routinely sued under a "strict liability" theory because their dog caused an injury to another. "Strict liability" means that the injured party did not need to prove negligence. It was much easier to prevail.
Dog bite lawsuits pursuant to strict liability under the common law required that the "domestic animal" exhibit dangerous propensities. Typically, dangerous propensities were proven by previous incidents when the dog harmed someone else. But, a dangerous propensity was also shown when the owner knew or should have known that the domestic animal could have caused injury to another person. Domestic animals also included cats, snakes, horses, and other pets. It's important to note that there was a distinction -- with wild animals.
If an owner of an exotic pet injured someone else, they could be held strictly liable without the dangerous propensity element. Thus, if a Las Vegas magician's tiger mauled someone, the magician could be held strictly liable even if the tiger never exhibited signs of having a dangerous nature before the incident. Contrast with the domestic animal lawsuit, a defendant could prevail if he could show that the domestic animal never exhibit dangerous propensities.
Fast forward to today. California enacted statutory law, which provides for strict liability in dog bite cases. There is no need to prove "dangerous propensities." California Civil Code 3342(a) states, in part that:
"The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner' s knowledge of such viciousness."
Does this statute prevent defenses? What if the dog was provoked by the actions of the injured party before the dog bite? Nothing in the Civil Code prevents a defendant from raising "comparative fault" or "assumption of risk" defenses. Therefore, if the plaintiff was a bad apple who hit the dog, the defendant dog owner may have a good case against the mean injured plaintiff.
In the event that you, or someone you know, was injured by a dog bite, it is wise to retain an experienced persona injury attorney. A lot of dog bites are serious. In some instances, plastic surgery is required. Experienced counsel can pursue a claim, most often with a homeowner's insurance policy, after a dog bite. Dogs are important to our lives but medical bills and pain and suffering should be addressed, if you, or someone you know, was a victim of a dog bite. We welcome your calls and questions.
Like other injury accidents, an owner of a dog can be sued for a dog bite. Under the common law, or laws developed through a number of cases, dog owners were routinely sued under a "strict liability" theory because their dog caused an injury to another. "Strict liability" means that the injured party did not need to prove negligence. It was much easier to prevail.
Dog bite lawsuits pursuant to strict liability under the common law required that the "domestic animal" exhibit dangerous propensities. Typically, dangerous propensities were proven by previous incidents when the dog harmed someone else. But, a dangerous propensity was also shown when the owner knew or should have known that the domestic animal could have caused injury to another person. Domestic animals also included cats, snakes, horses, and other pets. It's important to note that there was a distinction -- with wild animals.
If an owner of an exotic pet injured someone else, they could be held strictly liable without the dangerous propensity element. Thus, if a Las Vegas magician's tiger mauled someone, the magician could be held strictly liable even if the tiger never exhibited signs of having a dangerous nature before the incident. Contrast with the domestic animal lawsuit, a defendant could prevail if he could show that the domestic animal never exhibit dangerous propensities.
Fast forward to today. California enacted statutory law, which provides for strict liability in dog bite cases. There is no need to prove "dangerous propensities." California Civil Code 3342(a) states, in part that:
"The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner' s knowledge of such viciousness."
Does this statute prevent defenses? What if the dog was provoked by the actions of the injured party before the dog bite? Nothing in the Civil Code prevents a defendant from raising "comparative fault" or "assumption of risk" defenses. Therefore, if the plaintiff was a bad apple who hit the dog, the defendant dog owner may have a good case against the mean injured plaintiff.
In the event that you, or someone you know, was injured by a dog bite, it is wise to retain an experienced persona injury attorney. A lot of dog bites are serious. In some instances, plastic surgery is required. Experienced counsel can pursue a claim, most often with a homeowner's insurance policy, after a dog bite. Dogs are important to our lives but medical bills and pain and suffering should be addressed, if you, or someone you know, was a victim of a dog bite. We welcome your calls and questions.
Saturday, November 22, 2014
Proposition 213 in Motor Vehicle Accidents
A number of our blog posts have touched upon the subject of prospective clients being injured by the actions of an uninsured motorist. This post will talk about individuals who are uninsured, that happen to get injured by an insured party in a motor vehicle accident.
Back in 1996, California voters passed Proposition 213. The purpose of the proposition: remedy an imbalance in the justice system that resulted in unfairness when an accident occurred between two motorists -- one insured and the other not. The law wanted to encourage insurance, and legal, compliance. So, it precluded uninsured motorists, and drunk drivers, from pursuing noneconomic damages in a lawsuit. Noneconomic damages include, pain and suffering, physical impairment, and disfigurement.
Prior to litigation, when there is a claim open with an insurance company, Proposition 213 can have a serious impact on negotiating a settlement. If a party is uninsured, but bringing a claim, the value of his or her damages are limited. Typically, adjusters will calculate noneconomic, or general damages, in their evaluations. But they will also calculate Proposition 213 if the claimant is uninsured -- they have an incentive to settle it for far less.
Initially, plaintiffs attempted to challenge the constitutionality of Proposition 213. The Equal Protection Clause, First Amendment, and Due Process Clause were all cited as grounds for invalidating Proposition 213. The claims all failed and Proposition 213 was upheld by the California Supreme Court.
Since 1996, the law has been expanded and interpreted broadly -- sometimes unjustly. Of course there are exceptions in place. For example, an uninsured employee driving an employers vehicle, which is not insured, can still recover if they are injured by a third party. A decedent's estate may also pursue general damages if the decedent was uninsured. Nevertheless, Proposition 213 is still applicable today, and important in evaluating a potential personal injury case.
The important take away: make sure you are insured! It is not only the law, it is also in your financial interest. And like our office has stated in other posts, you may as well add "uninsured / underinsured motorist coverage" and "med pay coverage." As always, we would be happy to speak with prospective clients to discuss your potential case in more depth.
Back in 1996, California voters passed Proposition 213. The purpose of the proposition: remedy an imbalance in the justice system that resulted in unfairness when an accident occurred between two motorists -- one insured and the other not. The law wanted to encourage insurance, and legal, compliance. So, it precluded uninsured motorists, and drunk drivers, from pursuing noneconomic damages in a lawsuit. Noneconomic damages include, pain and suffering, physical impairment, and disfigurement.
Prior to litigation, when there is a claim open with an insurance company, Proposition 213 can have a serious impact on negotiating a settlement. If a party is uninsured, but bringing a claim, the value of his or her damages are limited. Typically, adjusters will calculate noneconomic, or general damages, in their evaluations. But they will also calculate Proposition 213 if the claimant is uninsured -- they have an incentive to settle it for far less.
Initially, plaintiffs attempted to challenge the constitutionality of Proposition 213. The Equal Protection Clause, First Amendment, and Due Process Clause were all cited as grounds for invalidating Proposition 213. The claims all failed and Proposition 213 was upheld by the California Supreme Court.
Since 1996, the law has been expanded and interpreted broadly -- sometimes unjustly. Of course there are exceptions in place. For example, an uninsured employee driving an employers vehicle, which is not insured, can still recover if they are injured by a third party. A decedent's estate may also pursue general damages if the decedent was uninsured. Nevertheless, Proposition 213 is still applicable today, and important in evaluating a potential personal injury case.
The important take away: make sure you are insured! It is not only the law, it is also in your financial interest. And like our office has stated in other posts, you may as well add "uninsured / underinsured motorist coverage" and "med pay coverage." As always, we would be happy to speak with prospective clients to discuss your potential case in more depth.
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.
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.
Tuesday, August 19, 2014
I Was Involved In a Motor Vehicle Accident; Now What?
Motor vehicle accidents are common in Los Angeles. In fact, it brings to mind the Saturday Night Live skit, "The Californians." All too often, Angelinos communicate about their commutes, experiences on the road, and traffic. Also, people talk about their unfortunate "accidents" on the highways.
When you, a loved one, or friend, is involved in an accident, there are some steps that should be taken immediately. By taking these steps, you can ensure that your injuries are addressed and that any future claims are protected.
One, pull over, if possible, to a safe location with the other driver involved. After an accident, it is easy to get distracted and careless. Remember to protect yourself by moving your vehicle to a proper stop area, if possible.
Second, call the police. Emergency personnel are trained to handle all types of accidents, including motor vehicle. This step addresses a few things: (1) you get to reflect on any pain and whether you are severely hurt; (2) you get to engage an independent third party who can testify as to what happened during the incident; and (3) you can receive immediate medical treatment, if necessary.
Third, exchange the proper information with the other party involved. This step is common knowledge, or so it seems these days, but it is essential. Have the other driver give you insurance information, personal information, like address and phone number, and ask him or her what happened immediately prior to the accident. Take mental notes as what happened during this exchange.
Fourth, give a statement to the police and see if any witnesses are at the scene. Let me be clear: it is extremely important that you seek immediate medical attention if you need immediate care. In the event that you do need immediate medical attention, do not stay at the scene of the accident. Inform the emergency personnel and proceed to a hospital. But, if your injuries do not need immediate attention, talk to any third parties who may have been near or at the scene of the accident. Collect their information too.
Fifth, take notes as to where your vehicle is going, if towed. Usually, vehicles are damaged to such an extent that they need to get sent to a body shop. It is important to have the body shop and towing information for the future.
Sixth, go to your doctor and if you do not have a primary care doctor, go to a hospital. Even if your injuries are not severe, it is important to seek treatment as soon as possible. Attorneys are not doctors, and more often than not, neither are the individuals involved in the accident (as a matter of probabilities). Doctors are the best professionals suited to ascertain the extent of your injuries and how to treat it appropriately. Do not hold off going to the doctor, because it could lead to more medical problems.
Seventh, open up insurance claims with your own carrier and the carrier of the third party involved in the accident. Automobile insurance, required by law, will have information about your coverage, including whether you can obtain a rental, and how quickly your vehicle can be repaired, if at all.
Eighth, contact an experienced personal injury attorney. Accident lawyers know how to resolve personal injury disputes, deal with insurance companies, and preserve your rights. It is simply not smart to move forward without representation, because of the nuances of personal injury law.
This is not an exhaustive list, but these steps should be taken after an accident. Of course, accidents are frustrating, painful, scary, and annoying. But hopefully, this short blog can make the experience less frightening. We welcome your calls and questions; our firm would love to help if you or a loved one has been involved in a motor vehicle accident.
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.
MASLO V. AMERIPRISE AUTO & HOME INSURANCE (2014)
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."
WHAT DOES IT MEAN FOR OTHER INSUREDS?
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, 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.
WHAT IS INSURANCE?
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.
BASIC PROVISIONS
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.
QUESTIONS?
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.
Thursday, December 19, 2013
Liable but broke: Why some legal battles aren’t worth fighting
While it may sound cynical, lawsuits are really about money. Injured people initiate lawsuits because they need money to cover their medical bills, help them cope with disabilities and time off work, and replace lost or damaged property. In fact, a basic principle of the tort legal system is that almost all injuries can be converted into a dollar amount. Of course, attorneys also need to be paid in order to keep their practices open and continue serving clients, and finally the legal system itself costs money to operate. As a result, after all the legal questions have been addressed, all the evidence gathered, lawsuits come down to a collection effort. The amount due, whether from an insurance settlement or a court ordered judgment, must be paid or the entire effort will have been for nothing. Unfortunately, some defendants simply don’t have any money, or at least not enough to pay for the damages they caused. Even where money is available on paper, actually getting those dollars to the proper person can sometimes be challenging.
Because of these issues, one of the factors that significantly impacts the viability of a lawsuit is the predicted ability to collect on any positive outcome; in short, the question of whether or not the plaintiff can actually get paid at the end. There are many reasons why collecting on a judgment might be difficult. Sometimes even the best cases, those with clear liability on the part of the defendant and serious damages to the plaintiff, are just not viable in practice.
Indigent Defendants
The most common of these heartbreaking cases involve situations in which the defendant simply does not have any resources from which to satisfy their legal obligations to the injured plaintiff. It might be that the at-fault driver of the car that caused the pile-up only carried state-mandated minimum levels of car insurance (currently a mere $15,000/$30,000); nowhere near enough to cover a prolonged hospital stay or major surgery for even one person, let alone several passengers. Or perhaps the responsible party is simply low-income and has neither property nor a steady source of revenue from which to pay a judgment. Whatever the circumstance, the collectability of a suit may make even good legal situations into poor practical cases.Bankruptcy
The threat of paying out on a judgment or settlement may drive a defendant to seek refuge in the bankruptcy system. In bankruptcy, many legal judgments can be discharged for mere pennies on the dollar, or sometimes for nothing at all. The bankruptcy process essentially gathers all of a defendant’s assets into a single pool and uses that pool to pay as much of the defendant’s debts as possible. In other words, if a defendant has 100,000 worth of debt and only 50,000 worth of assets (property, savings, etc.), the bankruptcy courts will use their authority to distribute that 50,000 evenly among the creditors; each of whom will collect approximately 50 cents for every dollar they were originally owed. At the end of this process, each of the debts that were addressed by the court will be considered settled in full, thereby wiping out any further capacity to collect on those debts. In many bankruptcies, the debtor has so few assets that almost nothing is paid to creditors. Where those creditors include an injured plaintiff, even the best of legal judgments may not earn the plaintiff any real payment.Medical Providers and other outstretched hands...
In many personal injury cases, a plaintiff is left with substantial medical bills. Even where some portion of these bills is covered by health insurance, the policies frequently include provisions which give the insurer some right to at least a part of any eventual legal settlement. Known as subrogation rights, these provisions may mean that a successful plaintiff obtains a settlement or judgment, collects the money, and then has to turn around and give a large portion of those dollars to an insurance company to repay them for the cost of earlier care. Where there is no insurance, medical providers may seek payment from a legal settlement directly. In some situations, cautious defendants will even seek to pay such providers directly, in others insures may get a court order to directly pursue some of the settlement or judgment. Effective attorneys understand when and how these kinds of subrogation and payment demands will develop and can advise a prospective client about the repercussions of the case right at the outset.Costs of trial
Even where eventual payment seems likely given the resources of the defendant in question, the costs of running a trial to the point of collection can be prohibitive. Sometimes to win a trial money must be spent; occasionally large amounts of money. To make matters worse, some cases take many years to work their way through the courts. In these situations, someone has to cover the ongoing costs of managing the case. These costs don’t just include lawyer’s fees but can also stem from the charges of experts, document fees, or the costs of obtaining evidence. While many personal injury attorneys work on a retainer system under which they get paid only at the end of a successful case, the risks involved might be simply too high to merit a substantial up-front investment.What it all means
In the end, what most plaintiffs really care about is being made whole for their injuries; about collecting money to cover their expenses, pain, and other losses. Unfortunately, even where there is a clear legal case, even experienced attorneys may sometimes be unable to take it because of the low probability of obtaining payment or because of the high costs of trial. While most personal injury attorneys really do understand and appreciate the pain and suffering of their clients, some cases just do not have a sufficient likelihood of a positive collection effort to be worth taking. No matter how much an attorney wants to take a case, no matter how sympathetic a client’s plight, if there is no way to get paid at the end, no one comes out better off from a fruitless legal battle.
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