Posts Tagged ‘car accident’

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.

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.

Hazardous Recreational Activities

June 20, 2011

by Dennis R. Stout

Imagine yourself on your day off, participating in your favorite recreational activity, on public property. Whether it’s mountain biking, kayaking, off-road motorcycling/four-wheeling, surfing, or water skiing, what is your recourse should you sustain an injury by participating in that activity?

Generally speaking, the Government Code of the State of California provides that neither a public entity nor a public employee is liable to 1) any person who participates in a hazardous recreational activity, including any person who assists the participant, or 2) any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself, and who voluntarily participated in that activity. California Government Code, Section 831.7 defines the hazardous recreational activity as a recreational activity conducted on property of the public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant risk of injury to a participant or a spectator. The Government Code also defines those hazardous recreational activities as the type of activities described herein, including but not limited to mountain bicycling, cross-country and downhill skiing, kayaking, off-road motorcycling and four-wheeling, surfing, water skiing, body contact sports, and other types of activities. “Body contact sports” is defined as those where it is reasonably foreseeable that there would be rough bodily contact with one or more of the participants.

The Government Code of the State of California generally places the risk of injury upon the participant in these described activities. There are some exceptions to the general rule that neither the public entity nor the public employee is liable for injury, with some of those exceptions including failure to warn of a known dangerous condition; charging fees for participation in the specific hazardous recreational activity; and recklessness or gross negligence by the public entity that is a substantial factor in causing the injury.

The Government Code of the State of California is a minefield to plaintiffs, requiring specific knowledge and skills by attorneys familiar with the California Tort Claims Act. The attorneys at Heiting and Irwin possess that familiarity and knowledge of the Government Code of the State of California, including the claims presentation requirements and immunities of the potentially liable public entity and public employees. If you have a claim for injury or damages, whether it be against a public entity or public employee, or any other injury claims, we at Heiting and Irwin offer free initial consultations and are interested and available to discuss your claim. Please contact our offices at 951-682-6400 for a free consultation.

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.

PROTECTING YOURSELF WITH UM/UIM COVERAGE

December 7, 2010

By Sara B. Morgan, Esq.

California requires all motor vehicle operators to maintain liability insurance with limits of at least $15,000. What happens if your injuries in an auto accident exceed that coverage?

Uninsured and underinsured motorist (UM/UIM) policies may help. They provide coverage for you, in case you are in an accident caused by a driver with no or little liability insurance. If the other driver has no insurance, and is thus “uninsured,” your insurance company compensates you for your bodily injuries and property damage, up to an including the amount of your policy.

An underinsured policy applies where the other driver has very little liability insurance, but your bodily injuries and property damage exceed that amount. Perhaps the other driver only has the state-mandated minimum of $15,000, but your injuries exceed $50,000. In this case, the other driver is “underinsured,” meaning he/she does not have enough insurance coverage to compensate you. Here, your insurance company would compensate you for your injuries that exceed the other driver’s insurance coverage, up to and including the amount of your policy.

With the increases in the general cost of living, and especially in medical services, the minimum liability requirement of $15,000 seems woefully inadequate to fully compensate those involved in anything other than minor motor vehicle accidents. One way to protect yourself against incurring these losses is through uninsured and underinsured motorist insurance, with limits appropriate for your particular circumstances.

Another way to protect yourself is to seek the assistance of an experienced, competent personal injury attorney. The law firm of Heiting & Irwin has for over 30 years represented clients in successfully bringing all types of personal injury lawsuits, including navigating the waters of insurance claims, and we are readily available to provide you with assistance. Please call us today if you need help.

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.