Jean-Simon Serrano named a 2013 Southern California Rising Star by Super Lawyers

January 30, 2013

Jean-Simon Serrano has been named to the Super Lawyers’ 2013 Southern California Rising Stars list, an honor awarded to no more than two and a half percent of attorneys in Southern California each year.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Super Lawyers and Southern California Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.

Heiting & Irwin is proud to have Mr. Serrano as a part of our personal injury team.

New Study Finds Drugged Driving More Prevalent than Drunk Driving

December 19, 2012

by Jean-Simon Serrano

drunk-driving-problem

The California Office of Traffic Safety recently released results of a survey which found that the number of people driving under the influence of drugs is higher than the number of people driving under the influence of alcohol.

The source of this finding is a survey of more than 1,300 motorists, conducted by the California Office of Traffic Safety.  The survey included roadside saliva tests of these motorists.  The saliva was tested for alcohol and illegal drugs, THC, prescription drugs and over-the-counter medications.

According to the survey, approximately 14% of the drivers tested positive for drugs in their system, compared to 7.3% of drivers who tested positive for alcohol.  The numbers included both illegal as well as prescription drugs.

Marijuana is the most frequent drug associated with drugged driving, and more than 7% of drivers in the Office of Traffic Safety study had marijuana in their system.

“Drugged driving” is dangerous because there are very few laws that govern the amount of drugs a person can have in their system while driving.  California, which has medical marijuana laws that allow the use of marijuana for health purposes, is especially at risk for drugged driving.  The passage of medical marijuana laws was not accompanied by corresponding laws limiting the amount of marijuana that a person can have in his system while driving.

Further, it is very difficult to tell exactly how many drivers involved in fatal accidents have drugs in their system, because of inadequate testing procedures or a lack of testing.

While the findings of this survey may be questionable, due to the small size of the population sampled, there is no doubt that drugged driving and drunk driving are a concern and play a role in many automobile accidents.

FAMILY LAW UPDATES

December 19, 2012

NEW LAW TARGETS CHILD ABDUCTION:  NO NEW PASSPORTS!

by Sara B. Morgan, Esq.

Under existing law, upon the institution of divorce, nullity, or legal separation proceedings, certain temporary restraining order automatically go into effect. Family Code, Section 2040.

Included amongst these orders, commonly referred to as “Automatic TRO’s” or “ATRO’s”, is a temporary restraining order precluding either party from removing any minor children from the state without prior written consent from the other party, or a court order. Family Code, Section 2040(a)(1).

The State Legislature, in an effort to target and prevent child abduction, has enacted Keisuke’s Law, also known as Senate Bill 1206. Effective January 1, 2013, the automatic temporary restraining orders under Family Code, Section 2040 will now also restrain the parties from applying for new or replacement passports for any minor children of the parties without the prior written consent of the other party, or a court order. S.B. 1206.

This legislative change may prove quite beneficial to parents involved in divorce, nullity, or legal separation proceedings, as well as the Family Law courts in California. Removal of a child is a common fear for such parents, particularly when the other party has ties abroad. Many an ex parte hearing was borne of word that a child’s passport application has been submitted. With the passage of Keisuke’s Law, the legislature may be able to give parents peace of mind while simultaneously lessening the Family Law court’s caseload.

Anchors Away

December 14, 2012

Heiting & Irwin
By: Dennis R. Stout

No, this does not refer to the recent resolution of the Los Angeles/Long Beach port strike, but to the equally recent decision by the R&A (Royal and Ancient) and USGA (United States Golf Association) to ban the use of belly putters and broom-handle putters effective in 2016. The proposed rule of golf reads as follows:

Rule 14-1(b): in making a stroke, the player must not anchor
the club, either ‘directly’ or by the use of an ‘anchor point.’

As with any type of rule change or change in law, the threat of litigation looms from those who have become accustomed to the belly approach. The great debate is whether the process of anchoring the putter qualifies as a “stroke” of the golf club (requiring the player to grip the club with the hands and swing it freely at the ball) or whether anchoring the club creates some form of advantage. Let the debate/litigation begin.

The R&A and the USGA are attempting to do that which is in the best interest of the sport, or level the playing field. Proponents of the belly putter and broom handle putters dispute any advantage and claim to fight the R&A/USGA, and their selective prosecution of those with a different approach to the putting “stroke”, claiming there is no distinct advantage to the anchoring method(s).

Our approach at Heiting & Irwin is to represent the best intent to our clients, following all the appropriate rules, procedures, and laws… even when they change! We update ourselves constantly on all important changes in the law, whether they apply to golf, law or life! Stay tuned for further developments as they occur.

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB – PART 3

December 10, 2012

By: Richard H. Irwin, Esq.,
Certified Workers’ Compensation Specialist

5.    IF CONTACTED BY INSURANCE COMPANY – If you are contacted by the insurance carrier (or their investigator) regarding a “statement” that they want to obtain from you – if you are represented, contact your attorney immediately. If you are not represented let the person know that you will be more than willing to speak with them, but you will not agree to a recorded statement and you will not sign any statement.

Do not let them convince you that you must, by law or otherwise, provide a recorded or signed statement (other than a signed claim form )as to how your injury occurred, any previous injuries you have had, the doctors you are seeing, your current treatment or the parts of body you are claiming injured, as well as your current symptoms and complaints. It would be a mistake to either let your “statement” be recorded or let an interviewer prepare a statement and ask you to sign it. The reason for this is because, without proper representation, you could say something potentially damaging to your claim, say something that effects your ability to receive benefits or fail to state something that could have an equally disastrous consequence.

DIVORCE: MAKE YOUR EX PAY (for attorneys fees, that is)

November 21, 2012

By Sara B. Morgan, Esq.

While helping people with their divorces, I frequently hear them say that they had put off moving forward with their split because of the cost involved. What many fail to realize is that California law may provide for a way to pay for their attorney’s fees and costs.

In Family Law matters such as divorce, legal separation, and nullity actions, the Court has the ability to order the other party to pay your attorney’s fees. According to the Family Code, the Court may “render any judgment and make orders that are appropriate concerning … [t]he award of attorney’s fees and costs.” Family Code, Section 2010(f).

There are different types of attorney’s fees and costs awards. One type is about equality, and requires the Court to ensure that each party has access to legal representation to preserve each party’s rights. Family Code, Section 2030(a)(1). The Court considers the income, needs, and ability to pay of both parties.

Another is type of award is a sanction, to punish or avoid improper behavior which frustrates the policy of the law to promote settlement of litigation, and to encourage cooperation between the parties in order to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. Family Code, Section 271(a).

These types of awards can be requested upon the filing of the initial petition, or any time thereafter, including for postjudgment appellate, modification or enforcement proceedings. Family Code, Section 2030; Marriage of Green (1992) 6 Cal. App. 4th 584, 593; Bidna v. Rosen (1993) 19 Cal. App. 4th 27, 38.

So, whether you are currently involved in or considering a divorce, legal separation, or nullification, you should contact a qualified, knowledgeable attorney immediately to discuss your options. At the law firm of Heiting & Irwin, we offer free consultations to prospective clients, so there is no cost to find out if we can help you. Please call our office at (951) 682-6400.

MEDIATION ON THE RISE

November 15, 2012

MEDIATION ON THE RISE

Heiting & Irwin

By: Dennis R. Stout

 

The budget crises in the State of California continues to affect the court system, particularly the courts’ ability to dispose of cases in an efficient manner. Litigants should expect to see a back log of court cases due to the lack of funding, lack of jurists, and lack of support staff. As cases continue to be filed, continue to sit, and trial dates continue to be scheduled further and further in the future, the ability of plaintiffs to settle cases without the pressure of a trial date will also increase.

The role of private mediation is ever expanding, and will more likely dominate the settlement process as the court system continues to deteriorate. Litigants can now find mediators specialized to specific cases and available for mediation at all phases of the litigation process, earlier, as opposed to later. Early mediation by litigants can avoid unnecessary costs and lengthy delays within the court system.

As with any effective settlement or litigation strategy, preparation is the key. Early preparation of cases for mediation will assist clients with an effective disposition of their cases. We are also beginning to see mediation with insurance companies directly, and with their in-house counsel, even prior to the filing of a lawsuit, in an effort to avoid the anticipated delays and costs forced upon litigants by the court system in the State of California.

Early retention of counsel, proper preparation, and the selection of an effective mediator are all keys to a successful resolution of a case. The attorneys at Heiting & Irwin have litigated, whether by trial or mediation, hundreds if not thousands of cases. We are prepared to proceed with the evolving mediation process to assist all of our clients to get the best results available in their particular case. The key again is early contact and early and thorough preparation of cases for resolution.

 

 

 

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB – PART 2

November 6, 2012

by Richard H. Irwin, Esq.,
Certified Workers’ Compensation Specialist

3.  SDIDo not delay File for State Disability Benefits through Employment Development Department as early on as possible in your case – even if you are receiving monetary benefits for Workers’ Compensation from your employer or their insurance carrier. Filing for such benefits, even if denied initially, will usually help to establish a “claim date” that will allow you to pursue such benefits at a later date when, for example, your Worker’s Compensation benefits cease.

It is not unlawful to file for such benefits at the same time you are receiving your Workers’ Compensation benefits, although you cannot receive full SDI benefits in addition to your Workers’ Compensation benefits.

4.  DO NOT REPRESENT YOURSELF – At least not without first speaking with an attorney experienced in handling Workers’ Compensation matters. Would you do your own heart surgery? Representing yourself in a system mired with complex litigation issues may not be a life and death matter, but your decisions, if in error, could cost you thousands of dollars, delayed or denied medical care, and/or substantial delays.

We’ve represented clients who came to us after having represented themselves for months, even years. In certain cases, they failed to file documents or pursue benefits in a timely manner, costing them thousands of dollars in benefits. Don’t let this be you.

(TO BE CONTINUED ON OUR NEXT BLOG)

What is the Value of an Injured Pet?

October 31, 2012

by Jean-Simon Serrano

In what seems to be a trend of new cases expanding the rights of pet owners, the Court of Appeal for the Second District recently ruled that the usual standard of recovery for a dead or injured pet (market value) is inadequate when applied to injured pets.

The recent case, Martinez v. Robledo, (2012) 2012 Cal. App. LEXIS 1098, which was actually the consolidation of two similar cases, presented the legal issue: What is the measure of damages for the wrongful injury of a pet?

In both of the consolidated cases, the trial court ruled that the measure of damages would be limited to the market value of the injured dogs.

On Appeal, the Court held that a pet owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury.

The Court reasoned:

“There can be little doubt that most pets have minimal to no market value, particularly elderly pets. As amicus notes, while people typically place substantial value on their own animal companions, as evidenced by the large sums of money spent on food, medical care, toys, boarding and grooming, etc., there is generally no market for other people’s pets.   We agree that the determination of a pet’s value cannot be made solely by looking to the marketplace. If the rule were otherwise, an injured animal’s owner would bear most or all of the costs for the medical care required to treat the injury caused by a tortfeasor, while the tortfeasor’s liability for such costs would in most cases be minimal, no matter how horrific the wrongdoer’s conduct or how gross the negligence of a veterinarian or other animal professional.”

Using the notion that tort law was designed such that injured parties are to be “made whole,” the Court held, “that allowing an injured pet’s owner to recover the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under Civil Code section 3333 as proof of a plaintiff’s compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.”

Thus, with this ruling, those who have the misfortune of having their pets injured by another are no longer constrained to the mere market value of their fuzzy friends.  Instead, owners may now recover reasonable costs incurred for the treatment and care of the pet which arose as a result of the injury.

As an animal lover, I believe this ruling is long since overdue and I am pleased to see the Court recognizing that pets have some intrinsic value beyond their mere market or replacement price.

Trick or Treating for the Veterans

October 19, 2012

Please join us in assisting our veterans.

WHEN CHILD SUPPORT & CUSTODY GET UGLY: IS IT DEFAMATION?

October 13, 2012

By Sara B. Morgan, Esq.

There is no such thing as “happy law”, especially in contested child support, custody, and visitation cases. Of course, the nature of the contested matter is expected to breed a degree of contention and aggravation between the two (or more) parties each contending for what they believe is in the best interests of the child. Unfortunately, this discord often spills over onto the surrounding family members, particularly grandparents, dragging them into the dispute. But what happens when the drama spills over into the public? Is it defamation for a parent or a grandparent to make those nasty comments about you?

A recent court decision, Chaker v. Mateo et al., says it may be free speech. In that case, Plaintiff Darren D. Chaker and his ex-girlfriend Nicole Mateo were engaged in a contentious paternity and support dispute regarding their child. Plaintiff Chaker filed the suit against Nicole and her mother, Wendy Mateo, for alleged defamatory statements posted on various internet websites. Chaker v. Mateo et al, 2012 DJDAR 13830. Some statements, posted on a consumer rating/awareness website, warned would-be consumers to steer clear of the plaintiff and his forensics business, saying he was scary and may take steroids. Other statements, posted on a social networking site, speak of the plaintiff’s poor character, referring to him as a deadbeat dad and a criminal. Ultimately, the courts determined that the child’s grandmother, Wendy Mateo, was exercising her constitutional right to free speech by expressing non-actionable, although negative, opinions about the child’s father.

If I am the victim of negative, harassing, abusive statements, what should I do? The only one-size-fits-all advice on how to respond if you find yourself in such a situation is:  TALK TO AN ATTORNEY! Although this plaintiff’s case was dismissed against the grandmother, that ruling was based on a specific set of circumstances. No two situations are alike, and there are many possible solutions to your concerns.

TALK TO AN ATTORNEY TODAY! In most legal situations, time is of the essence. The mere passage of time can harm your ability to obtain the best possible outcome for your particular circumstances. Because the law firm of Heiting & Irwin offers free consultations, there is no reason to put off calling today. We welcome your calls regarding paternity, child support, child custody and visitation, and divorce matters at (951) 682-6400.

Recent Changes to Jury Fee Rules

October 1, 2012

by Jean-Simon Serrano

In California, if you demand a jury trial, you are required to pay a deposit for exercising that right.  In recent years, prior to June 5, 2012, the Code of Civil Procedure § 631(b) read:

 

“Each party demanding a jury trial shall deposit advance jury fees with the clerk or judge.  The total amount of the advance jury fees may not exceed on hundred fifty ($150) for each party.  The deposit shall be made at least 25 calendar days before the date initially set for trial…” [emphasis added].

 

Earlier this year, Code of Civil Procedure § 631(b) was amended to read:

 

“(b) Each party demanding a jury trial shall deposit advance jury fees with the clerk or judge. The total amount of the advance jury fees shall be one hundred fifty dollars ($150) for each party.

(c) The advance jury fee deposit shall be made on or before the date scheduled for the initial case management conference in the action. If no case management conference is scheduled in a civil action, the advance jury deposit shall be made no later than 365 calendar days after the filing of the initial complaint. If the party has not appeared before the initial case management conference or has appeared more than 365 calendar days after the filing of the initial complaint, the deposit shall be made as provided in subdivision (d).” [emphasis added].

 

There are three things to note: (1) the “fee” is non-refundable; (2) each party is responsible for depositing this fee; and (3) the fee is required to be paid on or before the first Case Management Conference or within one year of the filing of the action.

 

Under the June 5, 2012 Amendment, every plaintiff is required to pay $150.00, in addition to the $450.00 filing fee (Riverside County), simply for bringing a civil action – this could amount to many hundreds of dollars in non-refundable fees being paid in a case where multiple plaintiffs are injured.

 

Additionally, because the vast, vast majority of personal injury cases in California settle before trial (indeed many statutes are engineered to promote the goal of settlement), this non-refundable fee gets paid to the court, never to be used to pay for the plaintiff’s non-existent jury and never to be returned to him/her.  Previously, the jury fees were only to be paid 25 calendar days before the initial trial date and, in many cases, an action would settle before such fees were deposited.  Now, the fee must be paid very early in litigation, often before any meaningful attempts to settle can be made.

 

As a result of much discontent regarding the June amendment to Section 631(b), Assembly Bill 1481 was introduced, passed, and signed into law on September 17th 2012, to take effect immediately.  Code of Civil Procedure § 631(b) now reads:

 

At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case. The fee shall offset the costs to the state of providing juries in civil cases. If there are more than two parties to the case, for purposes of this section only, all plaintiffs shall be considered one side of the case, and all other parties shall be considered the other side of the case.” [emphasis added].

 

The language of the Section now requires only one party per side to pay the jury deposit fee.  Unfortunately, the requirement that these fees be deposited on or before the date of the first Case Management Conference remains (a few narrow exceptions are listed in Section 631(c)).

 

It seems clear that the recent changes to these rules were designed to provide the Courts with more funding.  It is also clear that, given the early requirement for depositing such non-refundable fees, this is another non-recoverable cost that must be incurred by a plaintiff in bringing an action for damages.  What are less clear are the implications these rules have on one’s Constitutional Right to a jury trial and whether we will see further outrage like that which resulted in AB 1481.

SEVEN MISTAKES YOU CAN AVOID WHEN INJURED ON THE JOB

July 30, 2012

By Richard H. Irwin, Esq.
Certified Workers’ Compensation Specialist
(State Bar of California)

1. REPORT THE INJURY – If you are injured on the job report your injury. Ask your employer or a DWC1 (claim form). Fill it our and request a copy for your own records.

If you work for a small company and you are uncertain if they are insured for work-related injuries or how they will treat you once you report your injury, immediately document the fact that you submitted a claim form. This can be done by requesting a copy signed as received by your employer/sending a letter to your employer confirming that you reported an injury on a certain date. You might even text your employer or supervisor if he or she uses a cell phone.

2. SEE THE DOCTOR – If you believe your injury requires medical treatment or evaluation, ask your employer to see a physician immediately. This is not only the best way to ensure that your injuries are attended to, but the best way to document your injuries.

In fact, when you see the physician make certain that you indicate all symptoms that you are having and parts of your body that you believe were injured. Failure to mention a symptom or part of body may be used against you if you pursue the claim further.

(CONTINUED ON OUR NEXT BLOG)

CHAOS IN COURTS CONTINUES

July 23, 2012

CHAOS IN COURTS CONTINUES

Heiting & Irwin

By: Dennis R. Stout

 

The domino effect of the budget shortfalls in the State of California court system continues to develop. Previously the Los Angeles Superior Court system announced the closure of four civil courtrooms in Pomona. Most recently, the San Bernardino County Superior Court system has announced that the entire Chino courthouse will close effective January 1, 2013. This will include both civil and criminal divisions, with cases likely to be reassigned to the Rancho Cucamonga and/or Fontana courthouses for hearing.

There was discussion in the San Bernardino County Court system that the Barstow facility would also be subject to closure. Cutbacks in Big Bear and Needles have already resulted in cases being reassigned throughout the county system, including Barstow. It appears that the Barstow Superior Court is safe… for now!

Closure of entire court complexes effect not only litigants but local law enforcement and businesses as well. The inconvenience to litigants by having to travel to venues farther away, wait in longer lines, and have their cases likely take longer to complete, will create further backlogs in the justice system with greater time and expense for all.

There does not appear to be a quick or easy solution to the budget problems. Private litigation (mediation, arbitration, trials), outside of the court system, may be the wave of the future. Attorneys at Heiting & Irwin are ready, willing, and able to assist all litigants in these tough times.

A Remedy Remains: “Stolen Valor” is Still Fraud

July 16, 2012

by Sara B. Morgan, Esq.

Although the Supreme Court recently overturned the Stolen Valor Act of 2006, there are still legal consequences for lying about receiving awards and medals won through military service. Indeed, the ruling in U.S. v. Alvarez does not constitute an endorsement for stealing valor.

Instead, in finding the Act unconstitutional, the Court determined only that imposing federal criminal charges for such conduct violated the First Amendment protection of free speech. However, nothing about the High Court’s ruling disturbs the laws of torts or precludes any civil action by private parties. So, if I bestow something of value upon a person because of his misrepresentations about military service awards, I can still sue to get it back. Further, I may be able to get what are known as punitive damages, which are a monetary award designed to punish this type of despicable behavior.

WHAT TO DO AFTER A WORK RELATED INJURY

July 13, 2012

By Spencer E. Archie, Paralegal to:
RICHARD H. IRWIN, ESQ.
Certified Workers Compensation Specialist

The general and safe response is that all injuries should be handled the same way, however, that methodology may not be practical in the course of your work day. Any injury that causes you to believe that you need the care of a doctor should be reported immediately.

The person(s) that is considered your immediate supervisor is the person or persons you should first notify of your injury. In as clear and precise manner as possible, report to your supervisor exactly how the injury happened, noting the time and place where the event occurred. If the injury is serious enough for medical attention, request and insist that they send or take you to their emergency center for care.
Your employer must give you a DWC-1 claim form within one (1) day of knowing that you were injured. Filling out the claim form opens up your workers’ compensation claim. State law also lays out benefits beyond the basics that you may qualify for once you file the claim form with your employer.

If your employer does not give you the DWC-1 claim form, ask your employer for the form or call the claims administrator to get it. The claims administrator is a person or entity handling your employer’s claims. The name, address and phone number of this person should be posted at your work place in the same area where other work place information, such as where the minimum wage is posted. You can also get the form from the Division of Workers’ Compensation (DWC) web site at http://www.dwc.ca.gov. In the left navigation pane, under I Want To, click on Find a Form.

Heiting & Irwin has over 100 years combined experience assisting injured persons. Our Workers’ Compensation department is supervised by Richard H. Irwin, Esq., a California State Bar Certified Specialist in Workers’ Compensation. If you or someone you know has been injured, it is important to consult with an experienced, knowledgeable attorney in a timely fashion. To schedule a free consultation, please call our office at (951) 682-6400.

Five Things To Do After an Accident

July 9, 2012

Should you have the misfortune of being involved in an auto accident, it is important that you gather information and undertake a few responsibilities.

These are the most important steps to take following a collision. Click here for a useful form that you can keep in your vehicle. This form will help you gather important information at the scene of the accident.

1.         Obtain the information listed on our form:

Name, address, telephone number, driver’s license number of all drivers.

Insurance information from all the other drivers (Ins. co. name, telephone number and policy number).

License plate number and (VIN) for all other vehicles.

Name, phone number and address of any eyewitness to the collision.

2.         Report the accident:

immediately to the police and cooperate with them in preparing an accident report. If no police are available to respond to the scene, consider contacting the local police agency to determine if you can complete a report at a later time.  You will also need to fill out and file an SR-1 with the DMV.

to your insurance company, even if you are not at fault. If your insurance policy provides medical payments coverage and you require medical treatment because of the accident, your insurance company will provide you with information about how to use that coverage. Additionally, you may need to make a claim under your policy’s uninsured coverage (if your policy provides such coverage).

3.         Photograph:

Vehicles involved in the accident. Take several photographs that clearly show any damage. Take photographs from different angles and all four sides of the vehicles. Consider keeping a disposable camera in your car for this purpose, although a cell phone that takes quality pictures will work too.

Your injuries.

4.         Seek medical treatment without delay if you are injured or experiencing pain.

5.        Obtain legal advice by calling Heiting & Irwin before meeting with any insurance company representative, filling out insurance documents or giving a recorded statement or medical authorization to any insurance company (even your own). You have no obligation to provide this information before you have had the opportunity to speak with an attorney. If an insurance company representative contacts you before you are prepared to discuss your claims, politely explain that you do not wish to discuss the matter at this time, and you will contact them in the very near future to discuss your claims.

We suggest that you consult with an experienced personal injury firm.  Heiting & Irwin, offers free, no-obligation initial consultations. Our experienced attorneys will provide you with a thorough, thoughtful case evaluation that will help you to decide how best to proceed with your claims. Call (951) 682-6400, email or visit our website for more information.

ARE LAWSUIT SETTLEMENTS TAXABLE?

June 22, 2012

By Dennis R. Stout

The simple answer to the question regarding the tax consequences of a settlement claim is it all depends on the nature of the settlement!

 

Generally speaking, settlement money received from cases involving personal physical injury or physical sickness can be excluded from taxation (IRS Code sect. 104(a)(2)). Certain other types of settlement awards, (considering the nature of the item that the settlement replaces), may be taxable, including compensation for lost wages or lost profits; breach of contract damages, employment discrimination, emotional distress (if not related to physical injury or sickness); and punitive damages just to name a few.

 

In conclusion, only settlements from physical injury or sickness are non-taxable; generally all other types of settlements are taxable. Given the complexity of litigation, settlements and tax consequences, it is important and prudent to speak to an attorney, accountant, or tax advisor for clarification on this issue. Attorneys at Heiting & Irwin are always available to assist our clients with all of their legal needs and questions.

IS THE EMPLOYER RESPONSIBLE FOR INJURIES THAT OCCUR ON THE WAY TO OR FROM A MEDICAL APPOINTMENT?

June 20, 2012

By Debbie A. Beals, Paralegal to
Richard H. Irwin, Esq., Certified Workers Compensation Specialist

An employer bears the risk of incurring compensability liability under the California Workers’ Compensation Act for an injury suffered in route to or from a medical appointment related to an existing compensable injury.

If an employee suffers a new injury while traveling a reasonable distance, to or from a medical appointment for an existing compensable claim, the new injury will also be compensable. However, the employer will incur no liability if the employee travels an unreasonable distance to where the medical treatment was to occur and beyond “ the reasonable geographic area of his or her employer’s compensability risk.”

Each incident must be evaluated on a case-by-case basis with consideration being given to:

1) the location of the employee’s residence;
2) the location of employee’s workplace;
3) the location of the medical facility;
4) the location of the employee’s attorney;
5) the location where the new injury occurred;
6) the route the employee takes to deviate from an reasonable direct route to the medical facility;
7) the availability of providers or medical specialists;
8) the distance between the medical provider’s office and the employee’s point of departure; and
9) the employee’s reason why travel was beyond “the reasonable geographic area of his or her employer’s compensability of risk.”

Limited provisions is implied in Labor Code, Section 4600.

Heiting & Irwin has over 100 years combined experience assisting those who have suffered injuries due to the negligence of another, and has an entire department devoted to Workers’ Compensation matters supervised by Richard H. Irwin, a Board Certified Specialist in Worker’s Compensation. If you or someone you know has been injured, it is important to consult with an experienced, knowledgeable attorney in a timely fashion. To schedule a free consultation, please call our office at (951) 682-6400.

NOT IN MY CAR: WHY THE REPAIR SHOP WILL BE LIABLE FOR A JOY RIDE

June 20, 2012

By Sara B. Morgan, Esq.

A coffee-run to my local Starbucks (Brockton and Arlington) prompted my last article about the liability of an automotive repair or service shop for damage to a vehicle left in its care. Since posting my last article, I am happy to report that I have not seen any other mechanics using customer’s cars to pick up coffee.

Garages and other vehicle repairers would be wise to heed the warning, however. As previously discussed, a vehicle repairer is fully liable to the car owner for any damage which occurs when the vehicle is used without the customer’s consent. Civil Code, Sections 1835 and 1836. Presumably, this would include using a customer’s car to take a joy ride to get coffee at Starbucks. In these situations, the vehicle repairer bears the burden of proof to demonstrate it was free from fault or negligence. Downey v. Martin Aircraft Serv. (1950) 96 Cal. App. 2d 94.

Finally, the law prevents a customer from signing away this protection. In Gardner v Downtown Porsche Audi (1986) 180 Cal. App. 3d 713, the court held that an automobile repair garage may not limit its liability for negligent care of the vehicles entrusted to it by having customers sign a written disclaimer. The Gardner court relied on the premise that contractual clauses which purport to exculpate repair garages for liability for negligence violate Civil Code, Section 1668 and are invalid as contrary to public policy.

In most circumstances, the vehicle repairer’s liability for its negligence, or the negligence of its employees, is limited to the value of the vehicle left in its care. Civil Code, Section 1840. However, exceptions exist which may involve fraud or misrepresentation. If you believe you are the victim of wrongful conduct and have suffered damages or injuries, it is important to consult with an experienced, knowledgeable attorney.

The law firm of Heiting & Irwin has over 100 years combined experience representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.