Posts Tagged ‘auto accident’

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.

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.

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.

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.

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.

The Howell Decision: Is it Worse for Plaintiffs than MICRA?

November 4, 2011

By Jean-Simon Serrano

The Medical Injury Compensation Reform Act (MICRA) was passed in 1975 and limits non-economic damages (pain, suffering and death of a loved one) in California medical malpractice cases to $250,000.00. Prior to December 1975, juries were free to weigh all evidence and award an amount of non-economic damages appropriate for the injury to the victim.

The $250,000.00 cap on non-economic damages has never been re-evaluated since its imposition in 1975 and, due to inflation, is now less than $70,000 in 1975 dollars. As if this wasn’t outrageous enough on its own, MICRA also served to alter the collateral source rule.

“Under the traditional collateral source rule, a jury, in calculating a plaintiff’s damages in a tort action, does not take into consideration benefits, such as medical insurance or disability payments, which the plaintiff has received from sources other than the defendant, i.e., collateral sources, to cover losses resulting from the injury. Cal. Civ. Code § 3333.1 [MICRA] alters this rule in medical malpractice cases. Under § 3333.1(a), a medical malpractice defendant is permitted to introduce evidence of such collateral source benefits received by or payable to the plaintiff; when a defendant chooses to introduce such evidence, the plaintiff may introduce evidence of the amounts he has paid, in insurance premiums, for example, to secure the benefits. Although § 3333.1(a), does not specify how the jury should use such evidence, the legislature apparently assumed that in most cases the jury would set plaintiff’s damages at a lower level because of its awareness of plaintiff’s net collateral source benefits. “ Fein v. Permanente Medical Group, (1985) 38 Cal. 3d 137, 164-165

Thus, MICRA served to both severely limit the non-economic damages recoverable by plaintiffs in medical malpractices cases and limit the amounts recovered by plaintiffs whom were responsible enough to have procured insurance to guard against losses. Fortunately, MICRA allows plaintiffs who had health insurance to recover the costs incurred in procuring such a benefit, in the form of amounts paid in insurance premiums.

Recently, the California Supreme Court has issued another blow to the collateral source rule and to responsible plaintiffs. In Howell v. Hamilton Meats and Provisions, Inc., (2011) 52 Cal. 4th 541, the Court held that a plaintiff could recover as damages for her past medical expenses no more than her medical providers had accepted as payment in full from plaintiff and her health insurer.

Unlike MICRA, which permits plaintiffs to introduce evidence regarding expenses incurred in procuring their insurance, plaintiffs in non-medical malpractice personal injury cases receive no such benefit. Thus, under Howell (supra), defendants receive the benefit of plaintiff’s thrift in being liable for greatly reduced medical expenses without having to reimburse plaintiffs for the (often substantial) costs of procuring such a benefit.

As it relates to the effect on the collateral source rule, the recent Howell (supra) ruling is potentially more damaging to plaintiffs than MICRA.

Under MICRA, a perpetrator of medical malpractice receives the benefit of lower medical damages if the victim had health insurance; however, he must reimburse the victim her costs of procuring such insurance.

Under Howell, one causing injuries to others receives the benefit of lower medical damages if the victim had health insurance and, as an added bonus, does not have to reimburse the victim of procuring such insurance.

Sadly, Howell is a win-win for those causing injuries to others in California.

We, at Heiting & Irwin specialize in personal injury cases and are on the cutting edge of personal injury law in California.  While this decision is upsetting, we are undeterred in making sure our clients are fully compensated for their injuries.

James Heiting interviewed regarding recent article in National Law Journal

April 13, 2011

James Otto Heiting was recently interviewed regarding the article which was published in the National Law Journal.  Click here to see/hear the interview.

California Supreme Court Finds Liability for Tractor-Trailer Parked Along Freeway

March 17, 2011

by Jean-Simon Serrano

On February 28, 2011, the California Supreme Court decided the case of Cabral v. Ralphs Grocery Co. (Docket No. S178799).  This is another case revolving around a deadly motor vehicle accident in which a tractor-trailer was involved.  See my previous article here

In Cabral, Plaintiff’s husband, the decedent, was driving his pickup truck home from work, when he suddenly veered off the freeway and collided, at high speed, with the rear of a stopped Ralph’s Tractor Trailer.  Mr. Cabral was killed instantly.  According to investigation, Mr. Cabral was not intoxicated at the time of the accident and experts opined that the accident occurred after he (a) fell asleep at the wheel; or (b) lost control due to an undiagnosed medical condition.  Just prior to the accident, the driver of the tractor trailer pulled over to the side of the freeway in order to have a snack.

The jury determined that the decedent was 90% at fault for the accident and apportioned 10% of the fault to the driver of the tractor trailer.  The trial court denied Ralphs’s motion for judgment notwithstanding the verdict and entered a judgment awarding Mrs. Cabral damages for the wrongful death of her husband.

Ralph’s appealed the Superior Court ruling and the Court of Appeal reversed the judgment on the jury verdict and denial of the employer’s motion for judgment notwithstanding the verdict.  Ralph’s successfully argued that it owed no duty to persons such as the decedent as it was not foreseeable that persons such as Mr. Cabral would veer off course and collide with a tractor trailer parked along a freeway. The plaintiff appealed this ruling and thus the matter was put before the California Supreme Court.

The California Supreme Court held that the employer (Ralph’s) owed a legal duty to avoid a collision between the decedent, who was found 90 percent at fault, and the employer’s stopped truck.  In so holding, the Supreme Court cited Civil Code, § 1714, subd. (a) which established a general duty of reasonable care for the safety of others.  The Court stated that there were no grounds in the current case to find an exception to this general duty of reasonable care.  The Court stated:

“That drivers may lose control of their vehicles and leave a freeway for the shoulder area, where they may collide with any obstacle placed there, is not categorically unforeseeable. Nor does public policy clearly demand that truck drivers be universally permitted, without the possibility of civil liability for a collision, to take nonemergency breaks alongside freeways in areas where regulations permit only emergency parking.  Were we to recognize the categorical exemption from the duty of ordinary care Ralphs seeks, no liability could be imposed even when a driver unjustifiably stops his or her vehicle alongside the freeway in particularly dangerous circumstances. For example, parking a tractor-trailer for the night immediately next to the freeway traffic lanes on the outside of a poorly lit downhill curve, merely in order to save the cost of a spot in a truck stop, could well be considered negligent. Yet the parking truck driver in that scenario would as a matter of law bear no responsibility for a collision if, as Ralphs contends, no duty exists to exercise reasonable care, in parking alongside a freeway, for the safety of motorists who may unintentionally leave the freeway.  We therefore decline to create a categorical rule exempting those parking alongside freeways from the duty of drivers to exercise ordinary care for others in their use of streets and highways.”

The court also held that substantial evidence supported a finding that if the tractor-trailer had not been stopped where it was, the other driver likely would have come to a stop without a fatal collision.

As a result, the court reversed the judgment of the court of appeal.

This is not too dissimilar from the Court of Appeal decision in Lawson v. Safeway Inc., (2010) 191 Cal. App. 4th 400, which essentially held that tractor-trailer drivers had a duty to not only park legally, but also, to park safely. 

We, at Heiting & Irwin, specialize in tractor-trailer accidents.  If you or anyone you know has been in an accident involving a tractor-trailer, please do not hesitate to contact our office at (951) 682-6400 or visit our website: www.heitingandirwin.com

New California Case Holds Tractor-Trailer Drivers to Higher Standard

March 1, 2011

By Jean-Simon Serrano

The California Court of Appeal for the First District (which includes San Francisco and neighboring areas), recently decided a case, [Lawson v. Safeway Inc., (2010) 191 Cal. App. 4th 400] holding drivers of tractor trailers to a higher standard than some other motorists.

In the Lawson case, the plaintiffs were the driver of a motorcycle and his passenger.  “A large Safeway Inc. tractor-trailer was parked legally on the side of U.S. Highway 101 (101) close to an intersection near Crescent City. The position of the tractor-trailer blocked the view of oncoming traffic for a driver attempting to cross and turn onto 101. The driver’s pickup truck collided with motorcyclist Charles Lawson whose wife Connie B. Lawson was riding with him as they traveled on 101. The Lawsons filed suit for personal injuries against Safeway, the driver of the Safeway truck, the driver of the pickup, and the State of California. A jury awarded substantial damages to plaintiffs and apportioned 35 percent fault to Safeway, 35 percent to the State of California, and 30 percent to the driver of the pickup.”  Lawson, at 404 [emphasis added].

The issue before the Court on Safeway’s appeal was whether the driver of the tractor-trailer owed a duty of care to those injured in the accident when he parked in an area that was not prohibited by the Vehicle Code or any other statute or ordinance.  Safeway argued that they should not have been found at fault because their driver, in parking alongside the 101 fwy, had done nothing illegal.

The Court of Appeal ultimately held that, although the tractor trailer was parked legally on the side of the highway, the driver had a duty to park safely, as well as legally, in this particular case.  The driver had parked a 65 foot long, 13.5 foot tall, 8.5 foot wide commercial truck and the evidence showed that: the drivers of such trucks were or should be professionally trained to be aware of the risk of blocking other drivers’ sight lines when parking.  The evidence further showed that the truck was parked at a high-speed well-traveled intersection and a safe parking spot was available right around the corner.  Because of these facts, the Court held it was readily foreseeable that parking a large, commercial truck near an intersection might obstruct the views of passing motorists and cause them to collide.

In affirming the lower Court’s ruling, the Court of Appeals held that the risk of harm that was sufficiently great that a jury should have been allowed to determine whether the truck driver, in parking where he did, bore some responsibility for the accident.

Thus, it appears that, according to this ruling, drivers of tractor-trailers, because of their unique training and experience, will be held to a standard that not only requires them to be parked legally, but also, that they park safely.

We, at Heiting & Irwin, specialize in tractor-trailer accidents.  If you or anyone you know has been in an accident involving a tractor-trailer, please do not hesitate to contact our office at (951) 682-6400 or visit our website: www.heitingandirwin.com

What You May Not Know: 998 Offers

January 27, 2011

by Jean-Simon Serrano

Something that is often encountered in personal injury litigation in California is what is commonly referred to as a “998 Offer.”  Clients are constantly surprised by the 998 Offer as many have never heard of it.  Code of Civil Procedure § 998 is quite lengthy; however, the part that relates most pertinently to plaintiff’s personal injury practice is the following:

(c) (1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer… the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.

C.C.P. § 998(c)(1) [emphasis added].

This Section has the potential to have serious consequences for plaintiffs (and defendants if plaintiffs file a 998 offer).  Assuming the defense has made a 998 offer of $25,000.00, this is what such an offer could mean to the plaintiff:  If you  proceed to trial and receive less than the $25,000.00 offer, the plaintiff is potentially liable for the costs incurred by the defendant after the time of the offer.  Thus, in this scenario, the plaintiff would have to pay her own attorneys’ fees and costs, as well as the costs incurred by the defense.  The defense’s costs in such a scenario could easily be in the tends of thousands of dollars.  Bear in mind that this is true even if the final award or judgment is $24,999.99 and even if you “win” your case.  This leaves a plaintiff with the spectre of getting a jury verdict in her favor yet receiving nothing by way of judgment after costs and fees are paid.

Thus, the 998 Offer creates a substantial disincentive to “roll the dice” and take one’s case to trial if one is unsure of the probability of recovering more than the 998 offer.

The 998 offer is not just a tool to be used by the defense.  At Heiting & Irwin, we regularly send out 998 offers to defendants, demanding they offer the plaintiff a reasonable settlement.  When made by plaintiffs [under Section 998(d)], these offers work essentially the same way outlined above, creating financial disincentives for the defendant to proceed to trial when the plaintiff has made a reasonable demand for settlement.  If the plaintiff ultimately recovers greater than her own 998 Offer, the defendant may have to pay the costs incurred by the plaintiff since the date of her offer.

DEMAND EQUAL PROTECTION

December 22, 2010

By: Dennis R. Stout

Equal protection is a clever and timely catch phrase and legal issue in these times of gay rights and mandatory health care. The issue also arises in the purchase and maintenance of UM/UIM (uninsured and underinsured) motorist coverage in the State of California.

 Following up on the prior blog re: UM/UIM coverage, automobile liability insurance or proof of financial responsibility is required on any vehicle operated in the State of California. Minimum requirements are $15,000.00 for injury/death to one person; $30,000.00 for injury/death to more than one person; and $5,000.00 for damage to property. By purchasing the minimum coverage or any greater insurance coverage limits, the driver/owner is protecting the interest of others, should they sustained injury or damage. But what about equally protecting yourself?

Uninsured motorist/underinsured coverage is not mandated. If you are injured in an automobile accident involving an uninsured or underinsured driver, are you protected? You must have the proper coverage and the proper limits of coverage to equally protect yourself.

To purchase automobile liability insurance coverage only, a waiver is required of UM/UIM coverage. If you carry greater liability coverage than the minimum limits requirements in California (15/30/5) you definitely need UM/UIM coverage. With liability limits in larger amounts, to carry UM/UIM coverage in less than limits of $30,000.00 per person/ $60,000.00 per event, another waiver is required.

To make a long and complicated story short, drivers of vehicles in the State of California need to protect themselves equally by acquiring UM/UIM coverage in limits equal to the liability coverage limits they purchase to protect others. Waivers can be complicated in insurance purchases but, insurance claims, litigation for personal injuries and damages, and not having the proper insurance coverage and limits of coverage can be an even more complicated process.

Protect yourself with equal coverage and limits that you protect others! Check your automobile insurance policy(s) with your agent. All automobile liability issues, insurance claims, and other injury matters can be handled by competent legal counsel. Heiting & Irwin in Riverside, CA can and will handle all your insurance and injury claims to conclusion. Contact us at any time you are in need of assistance.

California’s Good Samaritan Law – Liability for Rendering Emergency Care

November 8, 2010

by Jean-Simon Serrano

California has codified, in Health & Safety Code § 1799.102, what is sometimes referred to as a “Good Samaritan” Law.  Prior to August 2009, this Section stated:

“No person who in good faith, and not for compensation, renders emergency medical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission.”

At the time, the Section did not include such specific language; however, the intent of this law was to encourage bystanders or “Good Samaritans” to help others in need of emergency care.  The California took up the issue in Van Horn v. Watson, (2008) 45 Cal. 4th 322.

 In Van Horn, the defendant, Ms. Torti, removed the plaintiff, Ms. Van Horn, from a vehicle involved in an accident and, by so doing, allegedly caused her to become paralyzed.   Ms. Van Horn sued Torti for negligence.  Torti argued that she had provided “emergency care at the scene of an emergency” and was immune from liability under Section 1799.102.  The Supreme Court of California affirmed the Court of Appeals’ finding that Section 1799.102 was intended to immunize from liability for civil damages any person who renders emergency medical care.  Because, Torti testified that she removed Van Horn from her vehicle for fear that Van Horn’s car was about to explode, there was a finding that the removal did not constitute medical care and thus she could not claim the immunity in Section 1799.102.

The Court’s finding and interpretation of this Section was disappointing.  It seemed that this Section was specifically created so that good Samaritans would help those in need and not fear recourse for coming to the aid of others.  After the Van Horn ruling, a Good Samaritan was left to wonder, before rendering any aid to someone at the scene of an emergency, “am I rendering medical aid?”  If the answer is “no,” the Samaritan may fear legal liability for assisting others and may choose not to intervene.

As a reaction to the ruling in Van Horn, Health & Safety Code § 1799.102 was amended in 2009 such that it now provides immunity for those providing “emergency medical or nonmedical care at the scene of an emergency.”  The Section was further amended to state,

“It is the intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.”

It seems as though this was always the intended purpose of the Section.  Unfortunately for Torti, the language which previously existed in the Good Samaritan Law ensured that her good deed of removing Van Horn from a wrecked car did not go unpunished.

What do I do after an accident?

August 16, 2010

by Jeffrey A. Boyd

-Assess your health and the health of anyone else involved in the accident. If any injuries appear to be serious, you should arrange for medical care immediately (dial 911).

-Remain calm and non-confrontational. Getting into an argument with the other driver, eyewitnesses, or medical personnel will not help the situation in any way.

-Get the information from the other driver (driver’s license number, license plate number, insurance company and policy number). Get information from the any eyewitnesses (including name, address, and telephone number).

-Make sure the police are called and that the officer files a report. If an officer will not respond to the scene, visit a police station within 48 hours to file an accident report.

-Make sure you receive necessary medical treatment. Just because you were not taken from the scene in an ambulance does not mean you are not injured. Sometimes a person will brush off pain as simple soreness from an accident. If you are not checked out by a medical professional, you will not know whether it is something more than normal soreness.

-Never give the other driver’s insurance company a recorded statement (see my previous article for the reasons behind this).

-The insurance company will likely handle the property damage claim separate from your claim for bodily injury. This is acceptable, but the insurance company is not entitled to ask you questions regarding your bodily injuries.

-Do not rush to settle your bodily injury claim until you have been examined by a medical professional and have talked with an attorney.

While handling a property damage claim may be fairly straightforward (ie. my car needs a new bumper), injuries to a person may be complex. A person may need physical therapy, medication, or even surgery. Just as a car may sustain damage to its frame that may not be visible to the body of a vehicle, people can sustain internal damage that is not present to the untrained eye. Settling a claim without being examined is risky and could leave you in the lurch if you need future medical care.

Insurance Adjuster Wants a Recorded Statement

July 16, 2010

by Jeffrey A. Boyd

After a car accident or truck accident, a common question our office hears is whether an accident victim should give a recorded statement to the other driver’s insurance company. Our advice is that the victim should politely decline to give a recorded statement.

The insurance company will place you under a lot of pressure to give a recorded statement and they must ask before they can record you.

There is no legal obligation to give a recorded statement, so why does an insurance company want one? The insurance company wants to document, as early as possible, and likely even before you are aware of the complete extent of your injuries, how the accident happened and what your injuries are. Remember, it is the job of the other driver’s insurance company to minimize compensation of your injuries. They will blame the accident on everything but their own driver. They will blame your injuries on anything but the accident. So no matter how polite the insurance adjuster is, they are trying to find ways to defeat or minimize your claim, and it is in your best interest to politely decline.

Your insurance company may ask for a recorded statement. You have an obligation to cooperate with your insurance company. Your statement to them will probably not be disclosed to the other driver’s company.