Archive for February, 2012

Injured on the Job? File for State Disability Benefits!

February 29, 2012

By Richard H. Irwin, Esq.

For the majority of the California Workers’ Compensation injury claims there is now a 104 week limit for temporary total disability – compensation payments made to an injured worker while unable to work because of the injury. This benefit is paid based upon two-thirds of an employees’ average weekly wage (up to certain state maximum weekly amounts) while a physician has indicated that the individual is “totally temporarily disabled”.

Unfortunately, for injuries after 1/1/08 this benefit is limited to a total of 104 weeks within the first five (5) years from the date of injury. The result is that individuals with serious injuries may lose this benefit they so desperately need prematurely; based upon the fact their period of being totally temporarily disabled lasts for more than a total of 104 weeks during this period. If, however, they filed for SDI (State Disability Insurance) they may be able to receive this benefit, or an amount substantially similar to said amount, for an additional year.

The difficulty, however, is that SDI bases it’s weekly benefit entitlement on earnings of the individual preceding their filing of a claim for SDI. As such, if an individual waits several months after their injury before filing for SDI they may have little, if any, earnings during the period preceding their claim due to the fact that they have been out of work, with no earnings upon which pay a State Disability benefit.

To avoid this pitfall, it is recommended that the injured worker file for SDI immediately after their injury even though they may be entitled to, or already receiving, temporary total disability benefits under the Workers’ Compensation system. In this manner, although they are not entitled to receive duplicate benefits (and are typically denied SDI benefits) they will have established their claim date so that when their temporary total disability benefits run out and they still have a physician certifying that they are unable to work they can usually collect up to another year of benefits – via State Disability. This can be a substantial benefit to anyone who has sustained a serious work-related injury.

Jean-Simon Serrano named a 2012 Southern California Rising Star by Super Lawyers

February 23, 2012

Jean-Simon Serrano has been named to the Super Lawyers’ 2012 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.

KNOW YOUR LIMITATIONS

February 22, 2012

Heiting & Irwin

By: Dennis R. Stout, Esq.

“Statutes of Limitations” are the laws which place a time limit upon the length of time one has to file a lawsuit, whether it be a civil complaint or the prosecution of someone for committing a crime. The time limits vary depending upon the nature of the claim or the crime involved, and also vary from state to state. If an action has not brought within the statutory time period, absent a legal exception, the right to file a lawsuit seeking money damages or other relief expires.

Generally, the time period within which to file a particular claim begins to run on the date that the claim arises or “accrues”, or when a crime is committed. As it applies to civil actions in the State of California, it may be possible to bring multiple causes of action from a single incident of wrongful conduct due to the various statutes and exceptions that exist. As such, anyone concerned about prosecuting their specific civil action should consult with a qualified lawyer, who can assist to determine which statue applies, to help preserve the right to recover damages.

In the State of California, generally you have two years to file a personal injury lawsuit after you were injured in a motor vehicle accident. If you are the victim of professional malpractice or negligence, the statute of limitations for legal malpractice is one year from the date of discovery up to a maximum of four years from the date of the wrongful act or omission, whichever occurs first. As to medical malpractice, the applicable statute of limitations is three years from the date of the injury, or one year from the date that one discovers or reasonably should have discovered the injury, whichever occurs first. There are exceptions to medical malpractice, including cases involving the presence of a foreign body, fraud, or concealment. The discovery rule does not apply in all civil injuries, so it is important to seek appropriate legal assistance in the event of a late discovery of an injury.

Statutes of Limitations may also be “tolled”, or stopped for a period of time. Typically, these situations occur during minority (injured party was under the age of 18 at the time the injury occurred); victim not mentally competent at the time of injury; or the responsible party was bankrupt during the pendency of the statute of limitations.

Finally, it is important to know whether your claim or cause of action exists as against a public entity in the State of California, requiring as a prerequisite a claim to be presented to that specific governmental entity. The purpose of the claims presentation statute is to put the public entity on notice, giving them an opportunity to investigate the claim. As an example, and generally speaking, a claim relating to a cause of action for death or injury to a person or to personal property shall be presented no later than six months after the accrual of the cause of action. There are far less exceptions and issues of tolling when prosecuting a claim for money damage against a public entity in the State of California.

These are just a few examples of statute of limitations in the State of California. What is described above does not cover everything. In addition, the laws in the State of California may change form time to time, or as stated, there may be multiple possible causes of actions based on any one event. One should always speak to an attorney if you have questions about your causes of action or the applicable statute of limitations in which to bring any such cause of action.

Attorneys at Heiting & Irwin are competent and available to assist in the handling of any of your civil, personal injury, or professional negligence matters. Please feel free to contact us at your convenience to discuss your legal rights and remedies.

Slander Conviction Being Appealed by Knox

February 7, 2012

By Sara B. Morgan, Esq.

Recent reports indicate that former exchange student, Amanda Knox, has filed an appeal of her conviction in Italy for slander (click link here). It is alleged that Knox slandered an Italian bar owner during the course of the investigation into the murder of Meredith Kercher, for which Knox was convicted but later freed. Apparently, Knox falsely accused the Italian bar owner of involvement in the murder.

The laws defining slander vary from jurisdiction to jurisdiction. For instance, in California, slander can be defined as:

“a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.”

Civil Code, Section 46. It is distinguished from libel, which is essentially slander in writing, based on the way it is communicated. See Civil Code, Section 45.

The validity of a potential slander claim varies based on the circumstances in which it arises, and it is important to discuss the details of any situation with a well-qualified attorney as soon as possible. At Heiting & Irwin, we have in excess of 35 years 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.

The Benefits of a Large Auto Insurance Policy

February 3, 2012

 by Jean-Simon Serrano

If you own and drive a car in California, not only does the law require that you have auto insurance, it is also a good idea.

 Technically, the law doesn’t require you to have an auto insurance policy.  In fact, as an alternative to insurance, one can post with the DMV a thirty-five thousand dollar ($35,000) bond or a thirty-five thousand dollar ($35,000) cash deposit.  Or, if you qualify, you may be issued a certificate of self-insurance from the DMV.  Realistically, an insurance policy is the only option for many.

 It is good to have an insurance policy and there are myriad reasons for this.

 Protection from Personal Liability

The first reason is probably the most obvious: protection from personal liability should you cause an accident.  If you are deemed to be at fault for an accident, you want an insurance policy to protect you and your assets for the damage caused.  This means picking a policy with appropriate limits.  How much is appropriate will depend partly on the assets you wish to protect.  For example, if you have multiple vehicles, a house, and/or other real property, a minimum policy of $15,000.00 per person/$30,0000.00 per incident will not adequately protect your assets if the accident you have caused does damages in excess of these minimal limits.  I have heard insurance defense attorneys joke that carrying a minimal policy is wise as it can lead to faster settlement in some cases and that attachment of assets is rarely sought.  This is not good advice.  Not only do many plaintiffs’ firms, such as the one where I work, regularly seek attachment of assets where necessary, carrying a minimal policy will limit the amount of underinsured motorist coverage you can carry, the benefits of which will be discussed later in this article.

 You should carry as large a policy as you can afford – the benefits of a large insurance policy go beyond mere asset protection.

 Civil Code § 3333.4 “Prop 213” Considerations

There is another very important reason to carry automobile insurance that is not well known to those outside the legal and insurance industries: Civil Code § 3333.4 or “Proposition 213” as it is commonly known.

 Civil Code Section 3333.4 states that a person “shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if… (2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured…” Civil Code § 3333.4 [emphasis added].

 Thus, even if you did not cause the motor-vehicle accident, you may be unable to recover for, among other things, pain & suffering, physical impairment, and disfigurement, if your vehicle was not insured at the time of the accident.

 You could become horribly disfigured because someone was texting while driving and not be able to recover for this disfigurement because you were not, yourself, carrying an insurance policy at the time of the accident.  This is certainly a drastic example; however, it should be reason enough to ensure that your vehicle is always insured – at any level of coverage.

 Protection Against Others (Uninsured/Underinsured Coverage)

A third, extremely important, reason to have auto insurance is to protect yourself against the harms caused by others.

 Won’t my injuries be covered by the at-fault party’s insurance?  Yes, no, and maybe.  As mentioned earlier, California permits one to carry an insurance policy as low as $15,000.00/$30,000.00.  If this is the only insurance policy held by the at-fault party, and they have no assets, this may not be enough to compensate you for your damages.  Furthermore, what if the other party has no insurance!?

 Fortunately, Insurance Code § 11580.2 requires every policy of auto insurance issued in California to include coverage equal to the minimum required coverage ($15,000/$30,000) against owners or operators of uninsured motor vehicles.  Therefore, if you are insured, but the at-fault party is not, you should at least be covered for the minimum amounts allowed by law… unless you specifically decline this coverage in writing.  I cannot fathom why anyone would decline this type of coverage in exchange for minimal savings on their insurance premium.  Do not decline this coverage – you are only hurting yourself.

 Additionally, uninsured motorist coverage can also be accompanied with “underinsured” coverage.  This type of coverage will protect you in the event that the at-fault party has neither an insurance policy large enough nor other assets available to fully compensate you for your injuries.  If you sustain serious injuries for which you will require life-long care, discovering that the at-fault party has no assets and only carries $15,000.00 of coverage only adds insult to injury.  With underinsured motorist coverage, you can protect yourself against such a scenario.  Using the previous example, if you carried $500,000.00 in underinsured coverage, you would still have $485,000.00 in coverage after the at-fault party’s minimal insurance was depleted.

 Protect yourself against those who do not fully insure themselves!  Many people on the road carry only minimal insurance policies.  The risk is too great that you will be injured by someone with low to minimal policy limits.  It does not make sense to decline uninsured motorist coverage or to carry anything other than maximum underinsured coverage.

 In addition to compliance with the law, these are only a few of the many reasons it is a good idea to have an insurance policy with maximum coverage.  Not only will you be protecting yourself, you will also be protecting others.

UNITED STATES CONSTITUTION 7TH AMENDMENT. THE RIGHT TO TRIAL BY JURY.

February 1, 2012

By James Otto Heiting, Former State Bar President of the State of California

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law,” (United States Constitution, Amendment 7).

How did the Seventh Amendment arise? When America was still a colony of England, judges were often influenced by the royal family and other “important interests”, and they would often rule accordingly. The Seventh Amendment was enacted to prevent oppression by a biased or corrupt court. It was meant as a guarantee that the personal interests or prejudices of certain judges would not serve to defeat the rights and responsibilities of citizens before the courts. To prevent corruption, the Seventh Amendment was written to guarantee a trial by our peers.

The Seventh Amendment has been interpreted to give people the right to a jury trial in many civil matters in federal court, but, seemingly contrary to the wording of the Amendment, not all. For example, lawsuits against the government, and admiralty matters, do not give rise to the right to have a jury decide the case. Rights to sue created by statute (versus the common law, or law created by court decision), including the ability to sue the United States Government, have jury rights created by statute and not the Seventh Amendment, according to the courts.

Along with the thought that parties are always entitled to a jury trial is the common misunderstanding that juries are always made up of twelve jurors. Typically, juries are portrayed to have twelve jurors; but sometimes the number of jurors is limited by legislative enactment for particular issues. Our U.S. Supreme Court has upheld such legislation by deciding that juries of six or greater are “sufficient” in cases to facilitate group deliberation and are “likely” to represent a cross section of the community, thus not violating the Seventh Amendment right to an effective trial by jury. States continue to recognize that capital punishment cases, however, still require a jury of twelve, a fact that suggests implicitly recognition of the value of the larger group to decide this most serious type of case.

Federal medical facilities and medical practitioners overseen by the Federal Tort Claims Act are totally exempt from a jury trial. The decision to prevent jury trials in matters such as these was criticized by Superior Court Justice Hugo Black’s dissenting opinion in a case decided in 1943 wherein he pointed out “a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment,” Galloway v. United States, 319 U.S. 372, 397 (U.S. 1943).

It is a real concern that, with the current backlog of cases, the ongoing financial crisis in our courts, and the skepticism of the public and legislators as to the effectiveness of the jury system, legislation may be passed further limiting jury size (or eliminating juries), affecting more legal matters in the name of “saving time and money.” The idea of smaller juries to shorten trial length and save money may sound acceptable, but an abundant amount of studies on this subject have found, among other negatives, that smaller juries can be less likely to have effective group deliberations, important pieces of evidence or argument may not be remembered, and influence from a single person has a greater effect in a small group. This often leads to inaccurate fact-finding and verdicts. With judge-only decisions, although straying from ethical and moral concerns is rare, the same concerns as existed at the time the Seventh Amendment came into being will always haunt the administration of justice.

Ideals of administrating time, at the cost of justice, should always be unacceptable. Our Seventh Amendment right to a jury trial, originally created by our founding fathers to protect those in America from injustice, is a right to be vigorously protected.