Archive for the ‘Articles’ Category

NOT IN MY CAR: WHY THE TEST DRIVE SHOULD BE LIMITED TO TESTING

June 13, 2012

By Sara B. Morgan, Esq.

One recent morning while leaving my local Starbucks drive-thru, I waited while two men wearing mechanic uniforms crossed the parking lot to what I assumed was their vehicle. I thought nothing more of this until, several days later, I saw the same men, again clad in uniforms, only this time walking to a different vehicle. This time, I noticed the fluorescent writing on the rear window, and suddenly realized these were auto service or repair men who were using customer vehicles to get their morning coffee!

A vehicle repairer to whom a vehicle is delivered has the usual duty of ordinary care and liability of a bailee for hire. Civil Code, Section 1852. The vehicle may not be used for any purpose without the customer’s consent, and the vehicle repairer is responsible for any damage which occurs when the vehicle is used without the customer’s consent. Civil Code, Sections 1835 and 1836.

Now, being the daughter of a mechanic, I appreciate the importance of the post-service test drive. However, I doubt that those customers anticipated the extra risks these men were taking in exposing their vehicles to the small, busy, bustling shopping center, particularly at the height of the Starbucks morning rush. Nor is it likely they would anticipate the vehicle repairer’s employees consuming food and beverages inside their vehicles. Thus, in addition to liability for any fender-benders, the vehicle repairer would also arguably be liable for any stains or cleaning fees in order to restore the vehicle to the condition it was in at the time the customer left it with the repair shop.

SHOULD SETTLEMENTS BE CONFIDENTIAL?

June 5, 2012

SHOULD SETTLEMENTS BE CONFIDENTIAL?

Heiting & Irwin

By: Dennis R. Stout

You have sustained an injury or some form of damage, filed and prosecuted your Complaint, and have now reached a settlement with the adverse party. Upon receipt of the Settlement Agreement and Release, the defendant requests that the settlement be deemed confidential, that the nature of the settlement, its terms, and the amount be kept secret by the parties to the litigation.

With several exceptions in the state of California, defendants can demand that a settlement be confidential. Cases involving public entities (where taxpayers have a right to know the disposition of public funds), elder abuse cases, and sex offenses are an exception to the rule. Otherwise, a defendant wishing to avoid public disclosure of fault, wishing to avoid similar claims, and concerned that knowledge of the settlement amount would belie a public denial of wrongdoing, may demand and include a confidentiality clause within the Settlement Agreement and Release.

Although there are strong arguments against confidentiality in Settlement Agreement and Release documents relating to injuries, there is no outright prohibition for the inclusion of such terms within a settlement agreement. As an injured party/plaintiff settling a case, one should not only aware of, but understand the provisions contained within the Settlement Agreement and Release that would subject the plaintiff to a penalty in the event of disclosure. The plaintiff should carefully read, review, consider, and understand the language of the Settlement Agreement and Release and any sanction for disclosure contrary to its terms. Reliance upon your counsel to explain the confidentiality clauses, ramifications and potential sanctions is an important conclusion to the litigation process. As with all stages of your injury and damage claim, confidence in and reliance upon your chosen counsel is of the upmost importance. All of the attorneys at Heiting and Irwin have handled litigated cases and are familiar with the importance of the terms and conditions contained within the Settlement Agreement and Release documents. It is our goal to assist you in all stages, and most importantly, that the settlement of your claim should not result in any sanction to you, should the disclosure of its terms be beyond your control.

The attorneys at Heiting and Irwin are available to discuss your case not only from its beginning, but to assist you in the completion of your case, as well, including review and evaluation of settlement documents. Experience in all aspects of litigation is important, and that is what all attorneys at Heiting and Irwin offer to its clients.

VIRTUAL PRESENCE NOT SUFFICIENT BASIS FOR LIABILITY

May 30, 2012

By Sara B. Morgan, Esq.

The sender of a text message was granted summary judgment against plaintiffs in a New Jersey personal injury action in which the recipient, while reading that text message, sideswiped the motorcycle driven by the plaintiffs. The plaintiffs, a husband and wife who both lost their left leg in the collision, named both the driver of the vehicle and the sender of the text message, alleging that the sender was “virtually present” because she knew that the recipient was driving at the time she distracted him by sending the message she knew he would read, thus giving rise to a duty owed by the sender to the plaintiffs.

The decision to grant the sender’s motion for summary judgment is seemingly grounded on the judge’s reluctance to impose a duty upon the sender. Judge David Rand found it unreasonable to impose a duty upon the sender in these circumstances, who during deposition admitted she may have known the driver was behind the wheel at the time the two exchanged several text messages. Instead, Judge Rand found that, while drivers may potentially be distracted by any number of electronic gadgets, the people of New Jersey can “expect more of [its] drivers….who are given the license and privilege to operate vehicles on our highways.”

Although this case is touted as the first of its kind, the New Jersey ruling reflects well-established principles of California law that people have the right to rely on the good conduct of others. Indeed, California Judicial Council Civil Jury Instruction 411 reads:

“Every person has a right to expect that every other person will use reasonable case and will not violate the law, unless he or she knows, or should know, that the other person will not use reasonable care or will violate the law.”  CACI 411.

Indeed, defendants are entitled to rely on the reasonable conduct of third parties who owe a duty of care to the plaintiff. Tucker v. Lombardo (1956) 47 Cal. 2d 457, 467.

This principle, however, is not without limitation, and as one would guess, the distinction is drawn based upon “reasonableness”. For instance, one who is not exercising ordinary care, or one who knows or should know that the law is not being observed, cannot rely on the “good conduct of others”. Malone v. Perryman (1964) 226 Cal. App. 2d 227, 243. “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for the harm caused thereby.” Rest. 2d Torts, §449; Bigbee v. Pacific Telephone and Telegraph Co. (1983) 34 Cal. 3d 49, 58.

In cases of catastrophic and personal injuries, issues of liability and causation are important to examine with a well-qualified, experienced 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.

The Duty to Disclose STDs — The One that Never Goes Away

May 22, 2012

In a recent local case [Behr v. Redmond, (2011) 193 Cal. App. 4th 517], the plaintiff sued the defendant for damages arising from the alleged tortious transmission of genital herpes.  Essentially, the plaintiff alleged that the defendant committed fraud when he misrepresented to her that he was free of STDs, knowing this to be false.  Relying on his representation, the plaintiff ultimately contracted genital herpes from her encounter with the defendant.

 After trial, the Riverside County Jury awarded her compensatory damages in the amount of $4,003,600, including $2.5 million for future medical expenses for the treatment of her genital herpes. In a separate trial deciding the issue of punitive damages, the jury awarded the Ms. Behr $2.75 million.

 The decision was based, in part, on long-established California law. “People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs.” Doe v. Roe (1990) 218 Cal.App.3d 1538, 1545.

 On appeal, the Appellate Court concluded that there was sufficient evidence to support the jury’s findings that Mr. Redmond was negligent and had also fraudulently concealed the risk of contracting herpes. The jury could reasonably conclude that plaintiff justifiably relied on defendant’s assurance that it was okay to have sex with him.

 The Court of Appeal did, however, make modifications to the award of future medical expenses.  The Court found that plaintiff’s claim that she was now uninsurable to lack factual support and thus struck damages based on this contention.  The Court thus found that plaintiff’s future medical expenses were the cost of her herpes medication over her expected life span.

 The award of punitive damages was not so disproportionate as to render it suspect or to otherwise require reversal. Plaintiff was not entitled to recover expert witness fees because she failed to support her memorandum of costs with a written offer to compromise.

The judgment was affirmed in part and reversed in part. The judgment was reversed as to the cause of action for fraud by misrepresentation. The award of future medical expenses was reduced to from $2.5 million to $72,000, and the total compensatory damages award was reduced to $1,575,600.

WHEN TO REFORM TORT REFORM

May 17, 2012

by Sara B. Morgan, Esq.

Reform. A positive-sounding word connoting improvement and enhancement, Webster’s defines “reform” as “an amendment of what is defective, vicious, corrupt, or depraved; a removal or correction.” However, you can have too much of a good thing, and unfortunately, tort reform supporters don’t often realize the negative effect their efforts may have upon the lives of individuals who suffer from devastating, catastrophic injuries, until it is too late.

Take for example, the recent Delaware River incident where passengers of a small, touring duck boat were drown when a large barge literally ran over them. The actions and inactions of the duck boat crew, including stopping the boat mid-river for almost 12 minutes, failing to timely instruct the passengers to don life vests, and cell phone usage immediately preceding the crash, all constitute negligence which caused or contributed to the deaths and injuries of its passengers.

Enter the Limitation of Liability Act, codified at 46 U.S.C. 30503, enacted in 1851 to encourage competition between American shipping companies and foreign shipping companies. Many countries abroad, including in Europe, had similar laws in place which limit the liability of a ship owner for injuries to persons and property to the value of the ship and its cargo after it arrives back to port – as long as the owner of the vessel was not at fault for the accident.

But what is the value of a duck boat that’s been run over by a barge and dragged from the bottom of river? While no money could ever make the duck boat’s passengers and their families whole, it can certainly assist them in coping with those losses and otherwise treating those injuries. To limit any recovery in this matter to the value of the soggy, used-up duck boat is unconsciounable.

Similarly, California enacted the Medical Injury Compensation Reform Act, known as MICRA, in 1975 to combat concerns over the availability and rising price of medical malpractice insurance. This Act established a limitation, or cap, of $250,000 on the amount a person could recover for any pain, suffering, distress, anguish, and loss of quality of life in a medical malpractice case.

The theory was that MICRA would decrease the number of medical malpractice claims, as well as the costs of resolving those claims. It was further speculated that these savings would “trickle down” to consumers, resulting in lower or stabilized insurance coverage premiums and increased availability of medical services.

MICRA caps operate on half of all plaintiffs verdicts in California to reduce the award a jury determines necessary to compensate those plaintiffs for their losses. The end result was a reduction in costs – negligent health care professionals benefitted from a 30% reduction in liability. What is lacking is any evidence showing that patients benefitted from a similar reduction in medical malpractice. Even more disturbing, research has proven that the jury awards most likely to be capped under MICRA are those cases which resulted in death, in severe non-fatal injuries, and injuries to children younger than 1 year.

Clearly, there are inequities here, and unfortunately, reform itself can result in the type of defective, vicious, corrupt, or depraved practices which it was intended to eradicate.

BEWARE OF EXCLUSIONS IN AUTOMOBILE INSURANCE POLICIES

May 10, 2012

BEWARE OF EXCLUSIONS IN AUTOMOBILE INSURANCE POLICIES

Heiting & Irwin

By: Dennis R. Stout

 

My office was recently contacted by a young woman on a clear liability, rear-end automobile accident. She was driving “her” vehicle (one of many insured by the family) and she assumed she was an insured driver. Wanting to immediately obtain a replacement vehicle (rental car) she contacted “her” insurance company, only to told she had no coverage. After a little research, it was determined she was an EXCLUDED DRIVER on all vehicles insured by the family.

Mistake or not, this driver is now defined by Civil Code Section 3333.4 (Prop.213) as an uninsured driver with limited rights to recovery of damages. Lacking coverage from “her” insurance coverage, she can immediately recover nothing. She must now wait to recover damages from the adverse driver/insurance company, and being uninsured and unable to establish her financial responsibility as required by the financial responsibility laws of this state (California), she can only recover her economic damages (medical expenses, lost earnings, property damage, loss of use of vehicle) but cannot recover non-economic damages for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages. There are a couple of exceptions to this, but generally this individual is limited in her recovery and must wait for the other insurance company to evaluate the case.

The moral to this story is make sure you and appropriate family members are insured drivers on your automobile policy and are not EXCLUDED DRIVERS for whatever purpose. Insured drivers can recover all damages sustained in a motor vehicle accidents, not just a few.

The attorneys at Heiting and Irwin are experienced in evaluating your insurance policy(s) and coverages pursuant to those policies. If you have any injury related claim, including insurance claims, contact us at your convenience for a free evaluation.

Lottery Ticket Treasure Hunt: To Dumpster-Dive or Not to Dumpster-Dive

May 2, 2012

by Sara B. Morgan, Esq.

On Tuesday, an Arkansas judge ruled that Sharon Jones must turn over the proceeds from the winning lottery ticket she fished out of a trash can, to the purported original purchaser. According to reports, the winning ticket was originally purchased by Sharon Duncan, who discarded it into the trash can of the Super 1 Stop store after the ticket scanner indicated it was not a winner. Sometime thereafter, Sharon Jones, who routinely recovers and checks discarded lottery tickets, recovered this ticket from the store’s trash can and presented it for redemption of the winnings. After investigation by the Arkansas Lottery Security Cheif, Jones was awarded the prize money.

Interestingly, it was the store manager of the Super 1 Stop that instituted the legal proceedings against Jones, although these claims were found to be baseless. Duncan did not joint the suit until January, after the judge indicated she may be the true owner. The judge ultimately found that Jones failed to meet her burden of proof that Duncan, the original purchaser, abandoned her right to claim the $1 million.

On these facts, however, there is plenty of room for disagreement. Duncan could have undertaken any one of a number of things to pursue her right to claim the prize money, including personally verifying the winning numbers from the newspaper, re-scanning the ticket with the same or different scanner, or presenting her tickets to the state lottery for any secondary prize. Instead, she scanned the ticket once and tossed it in the trash, presumably intending for it to be collected with the other garbage. These facts go beyond the private trash can-private property inquiry of California v. Greenwood, 486 U.S. 35, as this was a public trash can in a public place mixed with public garbage. That Duncan could have no expectation of privacy in discarding her ticket into this public trash only further substantiates the argument that she had abandoned this property.

California lottery tickets include terms and conditions in the fine print which are informative for this situation. For one, the ticket is required to redeem the prize. It follows that, where a ticket is discarded, so is the ticket-holder’s right to redeem the prize. Second, determination of the winners is subject to the rules and regulations of the California Lottery. Thus, the state lottery has the final say in the determination of the winners, and the investigation and verification process undertaken by the Arkansas State Lottery should have been sufficient to establish that Susan Jones was entitled to the winnings.

The fine print further instructs purchasers to write their name, address, phone number, and signature on the back of the ticket, in order to indicate ownership thereof. It would follow that this present ruling, even with an appeal pending, will call mass attention to these types of technicalities, and make it extremely difficult for any future dumpster-divers to (potentially) win big.

COURTS IN CHAOS

April 25, 2012

COURTS IN CHAOS

Heiting & Irwin

By: Dennis R. Stout

 

Over the past week the Los Angeles Superior Court system has announced the closure of four civil courtrooms in Pomona. The San Bernardino Superior Court system is apparently mulling over its options in the face of budget cuts, expected to be reached up to 18 percent.

Similar courtroom closures or furlough days, as have occurred in the past, are likely the next step. Riverside County Courts can’t be far behind.

What does this mean to civil litigants? Higher fees, more crowded courts, longer lines for services, and cases taking more time to complete. Is there a solution? Tax increases are one proposal, but that is never a viable solution to the average wage earner. The better solution is more competent litigation by attorneys through the use of effective Mediation and Arbitration. Cases that could last weeks in the court trial system can be litigated in days with Arbitration. Mediation, with retired judges or other competent attorneys or professionals, can and statistically do, resolve a substantial percentage of litigated cases, before trial.

The attorneys at Heiting & Irwin have arbitrated and mediated hundreds, if not thousands of cases over the years. Our goal is to investigate, discover, prepare, and litigate cases as efficiently as possible, always keeping the best interests of the client as our first priority. Even with courtroom closures looming, outside services remain available to attorneys to bring cases to a successful conclusion.

Regardless of the state of the courts, Heiting & Irwin attorneys remain available to consult on all types of legal matters. Contact us at your convenience.

Primary Assumption of the Risk in “Sports” Cases

April 18, 2012

By Jean-Simon Serrano

Since the landmark case, Knight v. Jewett (1992) 3 Cal 4th, 296, it has been held in California that the primary assumption of risk doctrine applies to those whom participate in sports.  The Knight case involved a group of friends playing touch football during half time of the 1987 Super Bowl.  While jumping up to intercept a pass, the defendant collided with the plaintiff, knocking her over and landing on her hand, injuring her finger.  Applying the primary assumption of the risk doctrine, the Court Supreme Court held that a participant in a sporting activity cannot hold a co-participant liable for injuries they cause.  This is because the person engaging in a sporting activity “assumes” the likelihood of risk at the hands of the co-participants.

The Knight Court also held that, even when a co-participant violates a rule of the game and may be subject to internal sanctions prescribed by the sport itself, no legal liability will attach.  The Court reasoned that to impose legal liability would, in effect, discourage vigorous participation in such sporting events. The Court tempered this finding by stating that a co-participant does have a limited duty of care to refrain from intentionally injuring another participant or from engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

While it appears clear that the intention of the Knight ruling was to avoid the chilling effect that the imposition of legal liability would have on participation in sporting events, case law over the years has stretched the definition of what constitutes a “sport” for the purposes of the primary assumption of the risk.

The Knight case involved participants in a touch football game.  Other cases which have applied the primary assumption of the risk doctrine have included sports such as skiing, river-rafting, competitive motorcycle riding, and sailing.  In Record v. Reason, (1999) 73 Cal. App. 4th 472, the Court, for the purposes of determining whether the doctrine of primary assumption of the risk applies, defined a “sport” as anything that “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” Record v. Reason, (1999) 73 Cal. App. 4th 472, 482.

There have been some cases where the parties have fought to keep their activities from being classified as a “sport” and thus keep the primary assumption of the risk doctrine from applying.  Two notable cases are Shannon v. Rhodes (2001) 92 Cal App 4th 792 and Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64.

The Shannon case was one of the first to fight back against the trend of having any activity remotely related to sports falling under the primary assumption of the risk doctrine.  In that case, the plaintiff was a six year old boy whom was a passenger in a boat on Lake Kaweah.  Due to alleged operator error, the young boy fell overboard and was severely injured when he was either struck by the propeller or otherwise run over by the boat.  The owners of the boat had the matter disposed of via summary judgment arguing that the six year old boy was engaged in the sport of motor boating as a passenger on their boat.  On appeal, the Appellate Court for the Fifth District overturned the trial court’s ruling, holding that the primary assumption of the risk doctrine did not apply.  The Court held, “regardless of the ‘risks’ that may be inherent in riding a boat, the existence of risk does not automatically call for the application of the doctrine…” Shannon (supra) at 798.  The Court further found that the plaintiff’s activities were too benign to invoke the doctrine and that, in the circumstances presented, the boat was simply a pleasurable means of transportation and not being used for “sport” as defined in the Reason case.  Last, the Court stated that its finding was unlikely to have a chilling effect on recreational boating.

In Childs, the plaintiff, an eleven year old, was injured after she rode her scooter over an uneven section of sidewalk.  The defendant was granted summary judgment after asserting that riding a scooter constitutes a sport or recreational activity and that, under the primary assumption of the risk doctrine, they had no duty to protect the child against the inherent risks of that activity.  On appeal, the Appellate Court for the Second District reversed the ruling, holding that riding a scooter was covered by the primary assumption of the risk doctrine only when the activity involved an element of danger, required physical exertion and skill, and included a competitive challenge – none of these factors was presented to the trial court.  The Appellate Court reasoned, “Based on the undisputed facts, applying the assumption of the risk doctrine to simply riding a scooter on a residential sidewalk would not further the purpose of the doctrine to protect sports and sports-related activities from the chilling effect of the liability caused by inherent risks in the activity.”  The Appellate Court reasoned,

“Application of the doctrine of assumption of the risk is determined by the manner in which equipment is used, not the manner in which it can be used, and merely using recreational equipment for pleasure does not trigger the doctrine.  To conclude otherwise would mean that because a car can be used in a race, riding in a car is participation in a sport.  Similarly, it would mean that because a bicycle can be used in a race, riding a bicycle as a means of transportation is participation in a sport.”

Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64, 71-72.

Last, the Court stated, “Falling or a comparable mishap is possible in any physical activity but is not necessarily an inherent danger of the activity.” Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64, 73 [emphasis in original].

Unfortunately, despite the rulings in Shannon and Childs, since the Reason ruling, Courts have applied the primary assumption of the risk to many activities that many would not consider active engagement in a “sport.”  Recently, in Truong v. Nguyen (2007) 156 Cal App 4th, 865, the Appellate Court for the Sixth District held that the decedent, whom was merely a passenger on the back of a personal watercraft, and was not operating the vehicle in any way, and whom was not involved in a competition, was engaged in a “sport.”  The Court reasoned that, riding on the back of such a vehicle required one to hold on to either the operator of the vehicle or the grips located on the vehicle to avoid being thrown off the craft.  Holding on to the grips of the Waverunner was enough for the Court to find that the defendant owed no duty to the daughter of the plaintiffs, whom defendant killed, when he caused a collision between his Polaris and the Waverunner on which the plaintiffs’ daughter was riding.  With the Truong ruling, we seem to have come far afield of the original public policy reasoning for the ruling in Knight – the encouragement of vigorous participation in sports.  With Truong, the Sixth District also appears to have distanced itself from the commonsense findings in Shannon and Childs about whether the plaintiffs were actually engaged in a “sport” at the time of their injuries.

This is an interesting area of law and one about which active persons should be aware.  At present, there appears to be a split among jurisdictions as to the scope and application of the doctrine.  There is no doubt that this doctrine will continue to evolve over time and may eventually be ruled upon by the Supreme Court of California.

YOUR RIGHT TO COUNSEL in CIVIL PROCEEDINGS

April 12, 2012

YOUR RIGHT TO COUNSEL in CIVIL PROCEEDINGS

Heiting & Irwin

By: Dennis R. Stout

 

You have likely heard or read on multiple occasions, the expression “you have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you…” (known as the Miranda warning). These are some of the rights of an individual charged with a crime. Criminals, or persons charged with crimes, have rights. The question is: Do civil litigants have the same or similar rights?

As a party to a civil complaint, whether contract, personal injury, or domestic matters (just to name a few) the civil litigant has far fewer rights. There is no specific right to counsel and the court will rarely, if ever, appoint an attorney in a civil case. You can always speak to an attorney, but can you afford to retain that attorney to represent you? There is no public defender in civil cases. California has experimented with appointment of civil counsel for low-income litigants in cases affecting basic human needs (Sargent Shriver Civil Counsel Act) however, the average every-day civil litigant has no such right to an attorney.

The attorneys at Heiting & Irwin are experienced civil litigators. Part of our promise to clients is to keep them well informed at all stages of the litigation process and to treat each and every client with civility and professionalism. We handle a large variety of civil cases, including personal injury, professional negligence, workers rights, and general civil litigation. An attorney is always available for an initial consultation with the prospective client on any type of legal matter.

Attorneys at Heiting & Irwin are well-known and respected through out Riverside, San Bernardino and all of Southern California and welcome the opportunity to represent litigants on a variety of legal issues. We believe that civil litigants have rights!

HEITING & IRWIN WINS HONOR OF TOP DOG PACK

April 12, 2012

Congratulations to Heiting & Irwin for its participation in the Mary S. Roberts Pet Adoption Center’s 20th Annual Walk with the Animals. While the event rained out, the weather couldn’t put a damper on the law firm’s fundraising team, the “Heiting’s Hounds”. We pounded the pavement, and earned the honor of the 2012 Top Dog Pak for raising the most funds in the group category.

We are proud to have helped such a wonderful cause, and thank all the friends, family, and local businesses that donated. A special thanks to Bann Thai and George Whitford Farmers for their generosity.

Congratulations to the top individual fundraisers, and to the Pet Adoption Center for a successful event. We hope to see you and your pets at the Walk’s new date, rescheduled for May 19, 2012 at Fairmount Park.

HEITING’S HOUNDS TO “WALK WITH THE ANIMALS”

March 14, 2012

By Sara B. Morgan, Esq.

This Saturday, March 17, 2012, the law offices of Heiting & Irwin will be participating in the Mary S. Robert’s Pet Adoption Center’s “20th Annual Walk With The Animals”. Held at Fairmount Park here in Riverside, the walk around Lake Evans begins at 9 a.m. led by a bagpiper. Also featured are a pancake breakfast, dog-kissing booth, bake sale (people and pets), low-cost vaccinations and microchips, and various other exhibits.

Our dog pack, “Heiting’s Hounds”, plans to attend with more than 17 people and 6 dogs, all dressed in St. Patrick’s Day green shirts with matching bandanas for the pups. We have been working hard to gather as many donations as possible for the non-profit, no-kill shelter, dedicated to providing giving homeless cats and dogs a second chance for a happy, healthy life by finding them good, loving homes. If you have not had the opportunity to pledge your donation, you may do so at:

http://www.firstgiving.com/fundraiser/HeitingsHounds/20th-annual-walk-with-the-animals

Thank you to all our supporters, and to all those who support the Mary S. Roberts Pet Adoption Center!

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.

Commitment to Service: Orange County’s High School Mock Trial Competition

November 28, 2011

By Sara B. Morgan, Esq.

I recently had the pleasure of observing (and scoring) a mock trial competition in Orange County. That evening, myself and the other legal professionals, judges, and volunteers rallied at the end of our long day to kick off the opening round of the 31st Annual Orange County High School Mock Trial Competition, organized by the Constitutional Rights Foundation – Orange County and held at the Civil Justice Center of Orange County Superior Court, located in downtown Santa Ana.

Being my first foray into such competitions, I was uncertain what to expect, but the gracious judge and attorney scorer, both well-seasoned volunteers, took me under their wings and guided myself (and the student teams) through the evening.

At the conclusion, to my sincere surprise and delight, the students eagerly rushed forward to inquire of the legal professionals for tips, pointers, critiques, suggestions, and the like. Their enthusiasm and drive were more energizing than a doppio espresso macchiato, even at 8:00 p.m.

As a former President of the State Bar of California, my employer, James Otto Heiting of Heiting & Irwin in Riverside, shares my strong commitment to public service, and was generous enough to donate our time to this special event. The competition is presently in the third round but still in desperate need of volunteers. If you, or any one you know are able to volunteer some time, I encourage you to contact the Constitutional Rights Foundation – Orange County with inquiries.

What Factors Determine Noneconomic Damages in Personal Injury Cases?

November 23, 2011

Recently, I was asked by a reporter, “what factors determine noneconomic damages in personal injury cases?” 

Noneconomic damages are individualized and not subject to formula and standardization, especially for larger cases.  Damages are dependent on the circumstances and apparent motivations of the individuals involved.  The jury will evaluate these factors in developing their impressions as to the amounts to award to measure what they feel is fair compensation for the hell and the losses one has, and will, go through.

 Juries are made up of a group of people with differing experiences, opinions, and motivations.  They bring to the jury room all those different points of view.  They have been impressed, however, with an exceptionally large verdict, with the tremendous burden and damage placed on the plaintiff(s), along with, probably, the greatly wrongful acts and omissions of the defendant(s).  They didn’t like what happened; and they are trying to make a statement as to what they think is fair.

 In cases that end up with small awards, many times the jury is unimpressed with the attitude of the plaintiff (he doesn’t really want to go back to work, even though he says he does, etc.); and they come into the jury box with the well-known publicity of verdicts being too high, insurance costing too much, and a substantial verdict will raise insurance rates even higher;  plaintiffs are just out to “hit the lottery;” and all the other false PR that has been done by insurance companies over the years to keep verdicts low.  The essence though, is the impression jurors have of the plaintiff and whether the PR can be turned around by the evidence and the people in the courtroom.  Are they trying? Are they doing their best?  Do I believe (in) the plaintiff?

Hopefully, a connection develops between the plaintiff and the jury.  The jury believes the plaintiff and believes in the plaintiff.  The damages are horrendous and can’t be reversed.  There is no amount of money that could compensate someone for having this kind of existence after having such promise and being worthy of a “sky’s the limit” type of life.  The plaintiff’s life has gone from one of “joie the vivre” to a daily torture at the gates of Hell.  As Dante put it, “All ye who enter here abandon all hope.”

That one person with an identical injury may be awarded a greater amount than another is a product of who that person is and how that person and their lawyer connect with the jury.  It is the same as any movie you watch – you root for the underdog, the hero, the one who deserves to win.  Their loss becomes your loss.  Their defeat, your defeat.

The Law Offices of Heiting & Irwin specialize in plaintiffs’ personal injury cases.