Posts Tagged ‘civil litigation’

What is the Value of an Injured Pet?

October 31, 2012

by Jean-Simon Serrano

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

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

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

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

The Court reasoned:

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

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

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

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

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.

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.

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.

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 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.

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 cited by “Chicago Lawyer’s” Robert A. Clifford

April 26, 2011

By Robert A. Clifford

I stood before 12 people, a cross-section of Miami-area residents who were to consider the case of a family who lost a loved one in a small plane that crashed off the coast as it attempted to take off.  The cause of the crash was a defective part, manufactured by a local company whose CEO was a generous, well-known philanthropist in the community.

As we went through voir dire, carefully asking questions to detect any biases, predilections, attitudes on the issues, we learned much, not only about how they would accept our theme of the case but also generally about the civil justice system, tort reform, aviation safety and lawsuits.  What we learned was that jurors today are much different than just a few years ago.  Perhaps the faltering economy has forced people to become more responsible for their own fate or made them more bold to speak their minds.  The 12 were very opinionated and vocal in expressing themselves.

Although the exercise I describe was for a mock trial before hundreds of people at a recent American Bar Association meeting in Florida, the hypothetical represented a fact pattern that was very much like a case that my firm handled just a few years ago involving an aging seaplane that crashed off of the coast of Florida on its way to the Bahamas, killing a 27-year-old newlywed woman.  Although that matter settled before a jury had to be selected, it was a good look at what we would have faced had we gone to trial there.

I asked if the “jurors” were afraid to fly, if they could find against the community’s generous benefactor, and probed their feelings about lawsuits, lawyers and damages that could amount to millions of dollars.  One person was concerned about where the money would be coming from.  When told that was irrelevant, her body language and facial reaction appeared as if she had a right to know.  Then I ask that final catch-all question: what is it that I need to know about you if you were in my shoes?  You can get some interesting responses.

The story of jurors’ attitudes today has grabbed national attention recently after a cover story in The National Law Journal reported “Voir Dire as Contact Sport.”  The headline on the inside page read, “Prospective Jurors Verge on Open Rebellion.”  It told the story of a case involving a beer truck striking a California UPS driver while she was delivering a package.  
 

With the judge sitting behind a card table at a nearby elementary school because of overcrowded conditions in the adjacent courthouse, the reporter goes on to explain how jurors didn’t just mumble complaints under their breath about a possible two-week trial, they vocally expressed their unwillingness to give up their time to see that justice was done.  Catcalls were heard in the makeshift courtroom: “we pay too much” and “there are too many lawsuits.” 

The judge deemed the entire panel tainted, unable to be rehabilitated, and dismissed them.  According to James Heiting, former California state bar president and attorney for the plaintiff, “both sides were nervous about selecting a jury panel and decided that settlement was the best course for this case.”
 What is disturbing is the reason for people’s unruliness and refusal to serve.  Whereas before analysts might attribute it to laziness or selfishness, today they point to the faltering economy.  People who are self-employed or recently employed say they can’t afford to sit at lengthy trials.  Even those who feel somewhat secure in their jobs express fear that a temporary replacement may be found to be more fit and they will suddenly return to no job at all.

I certainly have found that there is a greater reluctance in recent years than before, some of it fueled by the economy, and some from a what’s-in-it-for-me attitude by Gen X, Gen Y and, yes, even their parents and grandparents.

At this writing, jury selection is underway in the 20-count corruption trial of former Governor Rod Blagojevich.  “Nice to see you again,” he was reported as saying to some in the gallery.  “This isn’t inappropriate, is it?” he asked reporters, referring to U.S. District Court Judge James Zagel’s previous warnings to Blagojevich to limit his pretrial statements.

Readers of this column need not be reminded that the former Governor’s first trial ended with a conviction on a single count and jurors being unable to reach a consensus on 23 other counts.  Potential jurors this time are referred to by only a number, and their names will not be revealed until the trial has concluded.  Jurors are reported unafraid to ask questions of Judge Zagel and express their opinions in a media-packed courtroom.  There are reports that Blagojevich will present his own closing arguments this time around.

In the past, time limits or procedural constraints may have made it difficult to probe for deep-seated biases.  Now it appears that prospective jurors are more than willing to tell you exactly how they feel, not so much to get off of a panel, but to vent their frustration over a variety of matters going on in their own personal lives or using jury service as an opportunity to tell others just what they think of the legal system, politicians or whatever the issue is before them.  It all comes down to that final question: can you be fair?  Courthouse experts say Blagojevich needs to reach only one juror to get another mistrial.
 And as for the “hired” jurors at the ABA program a couple of months ago, one gentleman on the panel commented upon receiving his $100 payment for his participation, “Had I known there were going to be so many people in the audience, I would have asked for double.”

Across America, the number of jury trials is dropping like a brick in water, but for those trials that do go forward, lawyers need to remember that their personal credibility is still of utmost importance, and that jury selection in this “Brave New World” has become a process where prospective jurors are unafraid to assert themselves.

This article has been reproduced from the May issue of the Chicago Lawyer and was written by Robert A. Clifford.

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

ARE YOU RESPONSIBLE FOR YOUR DOG?

February 8, 2011

By: Dennis R. Stout

Animal bites are commonplace in our society. In many instances, a person bitten by a dog has a right to recover damages from the animal’s owner or other responsible party.

California Civil Code Section 3342 states that the owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.

Under this California strict liability policy, the owner of the animal is generally responsible for any injuries caused by the dog, regardless of the owner’s actions. Someone other than the owner, such as a keeper or a landlord, is responsible only if he or she had previous knowledge of the dog’s vicious nature.

There may be certain exceptions to these general principles, ie adequate warning, provocation or assumption of risk, however under California’s dog bite statute, the owner of a dog is responsible for the damages suffered by any person who is bitten by the dog. Those damages include medical expenses, wage loss, property damages and pain and suffering.

For dog bites, or any other type of injury claims, Heiting & Irwin can prosecute or defend those claims. Our attorneys have exceptional qualifications and expertise to protect not only the injured party, but also the tortfeasor. Contact us with any type of injury claim whether plaintiff or defendant!

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.

Statutes of Limitations and Why You Shouldn’t “Wait and See”

August 4, 2010

by Jean-Simon Serrano

It’s a story I hear on an almost weekly basis.  “After the surgery, I knew something was wrong but Dr. X told me to ‘wait a year and see what happens.’”  From a legal standpoint, this is terrible advice when dealing with a potential medical malpractice claim in California.

What’s wrong with waiting a year?  The Statute of Limitations.

A statute of limitations is a law which places a time limit on pursuing a legal remedy in relation to wrongful conduct. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.

Simply put, barring a particular exception, if you don’t file your lawsuit in time, you will be forever barred from bringing your action.

In California, medical malpractice claims are governed by Code of Civil Procedure Section 340.5.  It states that medical malpractice actions must be commenced within 1 year from the date of the injury, or one year from the date the plaintiff discovers, or reasonably should have discovered the injury, whichever occurs first.  It also states that, absent a specific exception, “In no event shall the time for commencement of legal action exceed three years.”

There are three enumerated exceptions to the general rule.  These are:

1. Proof of fraud

2. Intentional concealment

3. The presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.  

Unless you meet one of these exceptions, or unless you are a minor, you essentially have one year to bring your action.

The periods of limitation for medical malpractice apply to minors six years of age and older. For medical malpractice actions involving minors below the age of six, the action must be filed within three years of the date of the injury or before the minor’s eighth birthday, whichever period is greater.

Lastly, if your claim is against a public entity, you are required to bring a public entity claim within six months.

With all of this in mind, hopefully, is it clear why it would be an extremely unwise decision to “wait a year and see what happens.”  Courts are very strict in enforcing statutes of limitations.  Even the most meritorious case could be summarily dismissed if not brought within the appropriate time period.

If you or a loved one has been injured due to medical malpractice, or suspects that they may have been the victim of malpractice DO NOT DELAY!  You should contact a medical malpractice attorney immediately to have your case evaluated.  Furthermore, because the evaluation of medical malpractice cases can take some time, you may find it increasingly difficult to find an attorney willing to take your case as the limitations period approaches.

The Hawthorne Court: Civil Litigation Goes Back to School

July 2, 2010

By Jean-Simon Serrano

Many civil trials in Riverside County are presently being held in the Hawthorne Court – a recommissioned elementary school in Riverside.  In the past two months, my office has had the opportunity to try no less than three cases in this court.  Though it is, for all intents and purposes, a civil courthouse, there are a few peculiarities to having a civil trial in a former elementary school that bear mentioning.

Space is at a Premium

While the courtrooms are decorated and configured as such, there will be times when it is difficult to forget that you are in a rearranged classroom.  If your clients wish to have family members present, or if you are working with an insurance adjuster who wants to tag along, you should know that seating is extremely limited.  Only two persons can sit at each counsel table.  In one of my trials at Hawthorne, I was representing three clients – one client could accompany me at the counsel table but the other two had to sit at the back of the classroom (where there is room for only one row of hardback, uncomfortable, metal chairs).

It is often recommended that an attorney familiarize themselves with the courtroom before trial – this is especially true of Hawthorne, where it should take about fifteen seconds to do so.  A cursory inspection of the courtrooms will reveal that the witness stand is on wheels and is located inside the well, between the judge and counsels’ tables.  While portable in nature, the stand is difficult to configure such that witnesses can be simultaneously facing both the jury and anything projected via the overhead projector.  Projected images are almost always directly behind the witness stand, and some jurors complain they can’t see the witness at all because the court reporter is obstructing their view.

What you may not notice upon initial inspection of Hawthorne is that train tracks run directly behind the school.  Be prepared to pause hourly as freight trains blare their horns and roar by the building.

There are no judges’ chambers per se.  Rather, discussions that are regularly heard in chambers or at side bar, are likely to be heard outdoors, on a walkway that runs alongside the building between the classrooms.  Naturally, the court reporter is not present as it would be too cumbersome to bring the machine, etc., outside.

The Jury

It has been my experience, and perhaps this varies depending on the judge, that jury selection is done in the courtroom and not in a jury assembly room.  This will probably have little effect on your voir dire; however, it could be a surprise if you are not expecting it.  Additionally, I got the impression that counsel, and jurors alike, were taken aback by the school-like atmosphere of the court; and we all had to take pains to inform the jury that, while lacking the hardwood, marble, and tall ceilings of other courtrooms, matters heard in the Hawthorne Court were no less serious or important than matters heard in more aesthetically impressive forums.  Unfortunately, I am doubtful as to the effectiveness of this admonition.

Limited Privacy

Be mindful that, when court is not in session, the jury will be mulling about the area just outside the courtroom.  The “jury assembly” room and courtrooms are separated by a small courtyard, with picnic tables in between.  It is in this courtyard where the jurors usually gather during breaks and before court.  It is through this same courtyard that you, your clients, and your witnesses will have to walk should you wish to use the children’s restrooms, also shared with the jurors.  If you wish to talk to your clients or meet with witnesses, you will have to walk behind one of the various buildings or stand in the parking lot.  Likewise, there is no area designated for witnesses to wait prior to being called.  A jury selection room may be available but this, again, opens onto that same courtyard where the jury is waiting.  Prepare your witnesses for the idea that they will be testifying at an elementary school and perhaps have them wait in the parking lot until you are ready for them to be called.  They will likely be shocked at the courtroom configuration and witness stand.

With respect to parking, it is important to note there are essentially two parking areas.  You will want to park in front of the school, near the area where school buses picked up and dropped off children in years past.  You will likely be instructed to have your clients and witnesses do the same.  This is because the jurors park in the dirt lot on the east side of the school grounds.  Having your clients and witnesses park in front of the school will keep contact with the jury to a minimum.

Suggestions for Improvement.

I have spoken with several attorneys about their experiences at the Hawthorne Court.  Despite the negativity of their responses, all were mostly tolerant of their experiences, and each had similar suggestions as to ways in which the Court could be improved.  These were:

Larger Courtrooms.

Many of the attorneys who had been in the judges’ offices adjacent to the courtrooms had noticed that these offices are significantly larger than the courtrooms.  It appears the offices were enlarged by removing the wall along the back of the classroom and extending the offices into the other side of the building.  Similarly, extending the courtrooms in this fashion would yield courtrooms double the present size and probably make them adequate.  They are not adequate now.  As a (very) temporary approach, they were tolerable.  It is time to make them at least adequate.

Space to Meet with Clients and/or Witnesses.

This was probably the most common criticism.  Again, there is no place to meet with clients or witnesses out of the jury’s view.  A simple room provided for this purpose, away from jurors’ and others’ prying eyes and ears, would be greatly appreciated.

Area for Preparation/Research.

Several attorneys indicated they wished to have facilities available for last minute preparation or research – especially during lunch.  Currently, there is no place to do this other than at picnic benches with the jurors or in your car.  Some room(s) should be provided, perhaps with some internet access, such that preparation, communications with the office, or legal research could be conducted.  Such a room is a small request and should be a mandatory consideration.

The Temporary Nature of the Court Should be Reassessed.

Every courthouse has its idiosyncrasies, and I intend this article not to highlight only the shortfalls of the Hawthorne Court.  When the court was opened in January 2008, it was intended as a temporary (six month) solution to the judicial backlog in this county.  Now, more than two and a half years later, the temporary nature of court is questionable and the shortfalls are increasingly difficult to overlook.  This is not to speak ill of the court staff – whom were all very accommodating and extremely professional.  Clearly, we still need the Hawthorne Court to help alleviate the civil trial backlog in Riverside; however, permanent changes to the court are needed to make adequate this “temporary” solution.

Good Communication Can Reduce Lawsuits

January 28, 2010

by James Otto Heiting

Premiums charged by insurers are outrageous! Profit-driven underwriting for professional negligence makes all of us, except the insurance companies, suffer.

Although virtually every state has enacted some sort of “medical liability reform” to keep down premiums and financial risk to physicians and medical providers, these reforms, while onerous to the injured parties in many cases, have been a dismal failure in reaching the goals intended.

Picture you and your spouse, having had an uneventful pregnancy and carrying your healthy baby to term, reaching the hospital and placing yourselves in the care of the medical personnel there. Through a series of events that would be considered negligent, offensive, and even egregious, your baby does not receive the care that would be appropriate or required under the circumstances; and, as a result, your child suffers severe brain damage. This is your first child, and you may be limited, due to health considerations, from having any others.

You and your spouse deeply love your child, despite the fact that she cannot communicate, she cannot hear, and she is blind. She begins to suffer a series of maladies and requires constant attention. You take her home whenever you can and whenever her condition permits; but it seems that she has to go back to the hospital more and more often, and her condition is getting more grave.

Eventually, you succumb to the recommendations of the medical staff at the hospital, and you “let her go”. She slips away with her little dress on and the little bow in her hair, never to return, leaving behind an unbearable emptiness. Your loss is indescribable.

According to California law, the maximum you could receive in a damages award would be $250,000 for the loss of your child. Because you had some sort of insurance pay the medical bills (even public tax payer generated benefit), there is no entitlement to recover anything for bills that were not out-of-pocket. (The wrongdoer, even through liability insurance, is not responsible to pay back even the medical insurance company.) There is a good chance that you would not be able to recover for the weeks and months that you spent caring for your little girl, for the time that you had to take off work, for the inability to attend to your family, your other financial interests, your business. Obviously, the recovery set by these limits is woefully inadequate.

Even so, even with these limits on damages, insurance companies continue to sharply increase medical liability insurance pricing. I do not blame the injured parties or their attorneys. I do not blame judges or juries. It may be that the costs of defense (the defense lawyers and experts) may be out of control and should be limited. Certainly professional liability insurance carrier profits should be reviewed.

Irrespective of the cause of the increases in premiums, and irrespective of the inadequacy of damages awards available (at least from my perspective), the question arises as to whether there is an approach that would, at least in part, satisfy both sides. I think there is such an approach, but it is unlikely that a change in climate, trust and focus on all sides will occur without a change in practices, customs and time.

In September, President Obama announced a government backed pilot program to find alternative ways to approach the tort system for medical liability cases. He wanted to launch a program meant to cut down on expensive treatment through physicians having to practice “defensive medicine” to “avoid lawsuits”.

I, personally, feel that practicing medicine to avoid lawsuits probably equates to putting patient safety first, one of the other announced goals and requirements of the pilot program. Additional goals included working to reduce preventable injuries, fostering better communications between doctors and patients, insuring that patients are fairly and quickly compensated for medical injuries, reducing the incidence of frivolous lawsuits, and reducing medical liability insurance premiums. These are all laudable goals and may actually work.

Putting patient safety first and working to reduce preventable injuries are obvious and important components. We must remember that the medical profession is a service profession. If you will remember that, and you will keep that as a central component of your practice, it is much less likely that you will suffer claims, especially borderline claims.

Fostering better communication between doctors and patients is absolutely essential. I cannot tell you how many clients I see that come to me because of poor communication, or even refusal to communicate. Patients deserve communication and to be treated with respect and candor. Playing “hide the ball” and acting “holier than thou” will drive your patients to my doorstep.

Ensuring that patients are fairly and quickly compensated for medical injuries is a very exciting part of President Obama’s pilot program. It is exciting because it will hold down the expenses and high cost of defending cases; it will create an atmosphere of cooperation rather than antagonism; and it will serve to reduce medical liability insurance costs.

One of the ways to ensure fair and quick compensation for medical injuries is to encourage full disclosure and communication regarding such injuries. This is a difficult concept for many doctors, but it is effective in changing the mindset of plaintiffs and claimants to one of cooperation and gratitude for honesty and proper intentions. Full disclosure on both sides (recently getting play as “collaborative law” ) will result in much quicker (and more modest) resolution, less anxiety on both sides, less litigation, and probably less frivolous lawsuits.

I was consulted recently by a man who lost his wife due to inattention of nursing staff in an ICU. The medical negligence seemed obvious. The man asked me to represent him against the entity; but he also indicated that the risk manager of the hospital had contacted him and had indicated that the staff had made an error that resulted in the injury to his wife. The thing that drove the man to my office was that he felt insulted that the risk manager went on, in an attempt to minimize staff’s role, by telling him how sick his wife was, anyway, and that she would not have lasted more than a couple of years, even without the untoward events. That woman was everything to that man. She was his world. The risk manager, whether intentionally or otherwise, was diminishing their relationship and her worth. This was a mistake on his part that could and should have been avoided.

He was doing some things very well, though. The risk manager invited the widower to discuss compensation for his loss. (I felt that it was in the best interests of my potential client that I could advise him simply as to how I thought damages should be calculated and how he should approach risk management.) The two met several times and discussed the damages, the loss, and how sorry the risk manager was for this man’s loss. To make a long story short, my client settled the case with the risk manager within a few weeks. Although he settled for about sixty-five percent (65%) of what I saw as the value of the case for settlement purposes, he was able to get prompt resolution and pay a very minimal amount in attorney fees. He saved himself from a potential of years of litigation and probably would have received approximately the same net amount. At the same time, by being open and honest with the patient’s spouse, the risk manager saved the hospital the entire cost of litigation, including an extra $200,000 or so in damages, probably saving over $400,000 over a two or three year period of prospective litigation. By laying all the cards on the table, the hospital saved a lot of money, the risk manager was satisfied, the widower was satisfied to the extent possible, and I was happy that I could provide a service to my client that resulted in a real benefit to him.

In essence, then, my advice to reduce risk is to remember that service is the central component of healthcare, that respect for patients and their safety must be of primary importance; and, in order to foster good relations (and many times avoid claims even where claims are warranted), good and caring communication is the key.

My perspective: I respect, admire and root for health care professionals who care for and give their all for their patients; and I get angered by, and feel disrespected by, and want to teach a lesson to, those healthcare professionals who do not care and/or who want to hide behind arrogance and pomposity.

Workers Compensation "Reform"-At what cost?

January 22, 2010

Workers’ Compensation “Reform”- At what cost?

By Richard H. Irwin, Esq. (Heiting & Irwin)

While it was interesting to read the article authored by one of my learned colleagues in the February’ 09 (Volume 59, Number 2) issue of this magazine, I feel compelled to respond on behalf of the injured worker. After all, that article, although written by someone whom I hold in high regard for her knowledge and professionalism, has a clear and undeniable defense perspective, which “perspective” is admitted to in the opening to her article.

First, she made some valid points. Specifically, there were, in the 1980s, some unscrupulous medical providers who took advantage of not only the system, but also the injured worker. However, many law firms representing injured workers would seek out credible reporting physicians who would not take advantage of the system or the injured worker. In fact, in addition to the obvious reasons for doing this, this was done because it did not take long for these “physicians” to obtain a reputation not worthy of most reputable medical practitioners, with the result that workers compensation judges also felt their opinions were “not worth the paper they were written on”.

In discussing the “Boom of the 1980s” the author stated that “employees took advantage of long periods of temporary disability, then vocational rehabilitation and generous permanent disability settlements [emphasis added]”. Quite frankly, having represented injured workers for over twenty-eight years, such statements concern me. Specifically, it is unfair to suggest that all employees, or for that matter, even the majority of them, took advantage of anything, especially those injured workers with serious injuries. For instance, temporary disability only paid them two-thirds of their average weekly wage up to a maximum “capped” figure. If their earnings were significantly higher, they would not be compensated for any of that loss above the cap. This could, and often did, have devastating financial consequences, for injured workers and their families.

Likewise, what was wrong with the idea of vocational rehabilitation? If an injured worker was unable to return to his or her usual and customary job, at least there was an effort by the workers’ compensation system to return them to work such that they could once again contribute to society and take care of their family. That is not true today.

Similarly, to suggest that permanent disability settlements were “generous” distorts reality. Although there were times when, an injured worker could obtain a significant amount for his/her permanent disability, this was usually accompanied by a significant and life-long disabling condition, many times with intractable pain and extreme physical limitation that would impact the quality of life, their ability to return to work and their family forever. Although a few individuals made for good headlines by abusing the system (including claimants and insurance companies) many deserving employees with severe injuries received nominal compensation that did not come close to adequately compensating them; and their needs were not (and often are not) addressed by the system. In fact, the insurance industry, for obvious reasons, does not want this side of the story to be told.

In the discussion of the 1989 and 1993 reforms the $16,000 vocational rehabilitation “cap” is only briefly touched upon. While it is true that this “cap” was developed to limit costs, and also to streamline the vocational rehabilitation process. It largely limited the applicant to three to six month vocational trade schools, with no guarantee (and a limited likelihood) of employment. In fact, usually $4000-4500 of this $16,000 was paid to a qualified rehabilitation representative who “guided” and “assisted” the applicant in forming a vocational rehabilitation plan and to provide assistance until the conclusion of the vocational rehabilitation program. In addition, the injured worker was previously provided a vocation rehabilitation benefit that provided a maximum of $246/week (wow!) paid to them during the vocational rehabilitation plan. This left very little for the expense for educational retraining and limited the employee to a short term program, often with short-term or no meaningful results.

During the period from 1994 to 2003, the February 2009 article references the 1994 deregulation of the workers’ compensation insurance industry, by indicating that by 1997 some “major” workers’ compensation insurance companies were going out of business in California. It should, however, be pointed out that some insurance companies appeared to use deregulation to undercut their competition to the point that certain of those companies claimed they could no longer afford to do business here. Some who weathered this, though, acted to quickly recoup their (alleged) “losses” by increasing premiums to historically new levels – while blaming the injured worker rather than either their own greed or their own careless management.

But the main focus of my angst and concern from the articles is the April 2004 “reform” legislation (S.B.899).

For years before these “reforms”, workers compensation carriers in California were making significant profits under a system that essentially froze the benefits for injured workers from 1996 through 2002. Then, in 2003, when benefits to injured workers were increased to balance the freeze, the insurance industry put its substantial power, lobbyists and money behind an effort, not only to halt the balancing increase in benefits that the injured worker had waited for over seven years for, but also to further limit the rights and benefits of the injured worker and to increase their own “bottom line” that much more.

Our governor, unfortunately, turned a deaf ear to the needs of the injured employees of the State of California and instead chose to listen to his friends within the insurance industry. The result is a bill fraught with “reforms” that have had the effect of driving the injured worker into greater financial distress and, in many cases, onto public assistance programs or out of the work force entirely. These “reforms” include:

1) The total elimination of any vocational rehabilitation retraianing program for the injured employee who, because of his or her injuries, cannot return to work even in a job that they may have had for several years. The result, obviously, is even more disastrous when you consider the difficulty of their returning to work after having worked in only one industry for the majority of their adult life, and they are now required to search for a job in another, and often unrelated field, with a known and documented, and often obvious, permanent impairment.

2) A reduction in permanent disability benefits of between, in many cases, 50-70%!

This has always been intended to be an amount to assist the worker during a time necessary to recover to the extent possible and to reenter the work force, when a permanent physical or mental impairment has resulted from their injury. To reduce this benefit by such an amount is unconscionable and often has a devastating impact upon an injured worker and their family.

3) A medical utilization review by a physician who will never actually examine the injured employee, who is often out of state, reviewing the medical procedure requested by the injured worker’s often long-time treating physician and making a determination that denies or substantially denies or delays a much needed medical test, procedure, or treatment.

4) A limitation of temporary disability payments to 104 weeks from the date of the first payment. As a result of this unique “reform”, in many cases, if an injured worker collected only a couple of weeks or months of temporary disability after their initial injury, but then more than two (2) years later their condition (for example a disease or a significant low back injury) flared up or deteriorated to the point that they needed surgery, they could be denied any temporary disability. Yet they would be out of work for several weeks or months, recovering from surgery. For injuries after January 1, 2008, the injured worker can now receive a maximum of two years of temporary disability to be paid within five years from the date of injury. Again, even in very serious cases, when the injured employee may be temporarily yet totally disabled for greater than two years, no further TTD benefits will be paid.

5) Apportionment (i.e. a attributing a portion) of disability to an underlying degenerative condition. Even if the individual had absolutely no symptoms or disability attributable to said underlying condition before their work injury, and, arguably, even if the individual could have gone for years, or even a lifetime without ever experiencing symptoms or disability, under the new legislation, a portion or percent of overall disability will be attributed to this asymptomatic and non-disabling condition, reducing the permanent disability benefit.

To make matters worse, every physician I have ever deposed states that degenerative processes are synonymous with the aging process. As such, by permitting apportionment (and the resulting reduction of benefits) to the aging process, this bill is effectively discriminating against injured workers on the basis of age. This is improper and unlawful, yet now sanctioned by this reform legislation.

The previous article asked the question “How has the 2004 reform worked?” In response, let me say that if by “working” you mean that it:

* Has unjustifiably cut many injured workers recoveries by up to 50 to 70 percent;

* Has totally eliminated the ability of an individual who cannot return to the workforce to receive any retraining/vocational assistance;

* Has severely limited temporary disability benefits even in the most serious injury cases, where they are so greatly needed;

* Allows physicians who never see or examine the injured employee to deny and delay reasonable treatment requests by their long-time treating physicians;

* Allows an individual’s work-related disability to be reduced because of age and/or condition(s) that never had resulted in symptoms or disability and which, absent the work injury, never would have;

* Limits physical therapy to a set number of visits (even if post-surgically there is a recommendation for additional therapy);

-then I guess you could say its “working”.

Personally and professionally I have a problem with a system which was created to properly “compensate” the injured employee in lieu of allowing the right of independent civil actions against employers for work injuries, when inequities and unfairness abound.

Equally of concern is the stated fact that many applicant (injured worker) attorneys have left the practice and that, if the current schedules or benefits continue, “very few attorneys will be representing injured workers”. What a travesty it would be if the employee who is the backbone of our economy and who is already being denied rights, benefits and privileges, by this legislation is also effectively denied representation – denied help! Is this “reform”? Is this change for the good?

There is no question that the reforms have reduced costs to insurance carriers, that profits are up – but at what cost to the injured worker? The cost is much too high. We should all want our injured workers to have just and fair rights and benefits, without which he or she, and their family, will not thrive, and in some cases will not survive.

Don’t we owe an obligation to those workers that provide services to and on behalf of their employers, our community and our State on a daily basis, risking injury and, at times, their life, for and in the service of others? Maybe our priorities need to be reevaluated.

This article originally appeared in the November issue of the Riverside Lawyer

Tort Reform-Unintended Consequences

January 22, 2010

Tort Reform – Unintended Consequences

By Jean-Simon Serrano, Esq. (Heiting & Irwin)

Oftentimes, well intentioned legislation can have far-reaching and unintentional consequences.  A great example of this is Civil Code § 3333.4 or “Prop 213” as it is commonly known among those in the field of personal injury litigation.

Mr. Patterson, a client of mine and a retired factory worker, was driving home from the American Legion Hall last year when he was broadsided by a well-known company’s parcel delivery truck, the driver of which had run a red light.  The twisted hulk of metal which had been Mr. Patterson’s car had to be cut apart so paramedics could rush him to the hospital for life-saving treatment.  His right leg was so badly injured in this wreck that it required amputation.  Because his wife had recently fallen ill, Mr. Patterson had unknowingly let his auto insurance lapse.  As a result, he was an uninsured motorist on the date of the accident.  The defendant truck company had full coverage.

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].

Mr. Patterson’s case provides a clear example of the problems surrounding Prop 213.  As a retiree, he has no loss of income.  As an amputee, he has been provided a prosthetic limb and has minimal future medical expectations.  Medical bills for the amputation come to roughly $3,500.  Though his driving on the date of the accident was flawless, and there is no question that he in no way contributed to the occurrence of the accident, because of Prop 213, Mr. Patterson will receive nothing for the excruciating pain he suffered at the time of the accident.  He will not be compensated for the daily, constant pain he still experiences when he attempts to wear his prosthetic leg – pain which is so great, he often simply can’t wear the prosthesis and must use crutches to get around.  Phantom limb pain, so severe it often wakes him up in the night, will go unaccounted for.  His disfiguring injuries, along with the inability to drive, run, walk, or continue his volunteer duties as a crossing guard for a local elementary school, entitle him to absolutely nothing from the driver who carelessly caused all of these injuries.  Furthermore, he is now unable to continue to look after his wife, whose illness has worsened in recent months.

The intention of Prop 213 was to curb the number of uninsured motorists on the road by pressuring people to get insurance.   Whether it has been successful in doing this is doubtful.  What was unintended but is very clear is the effect this bit of legislation has had on people such as my client, Mr. Patterson.

To make matters worse, plaintiffs in “Prop 213” cases often have a very difficult time finding representation, as most plaintiffs’ personal injury attorneys must summarily refuse such cases as the limitations on recovery imposed by Civil Code § 3333.4 make them impractical for contingent fee representation.  Thus, this legislation also has the unintended consequence of forcing such plaintiffs to proceed in pro per, if at all.

Thankfully, there are certain exceptions to Prop 213.  If the culpable party is found to have been driving while under the influence, Prop 213 does not apply.  This is the only exception specifically provided for in the language of the statute.  Civil Code § 3333.4(c).

Other exceptions, however, have been developing over the years through case law.  One such exception deals with those driving company vehicles in a Workers’ Compensation setting.  Montes v. Gibbens (1999) 71 Cal App 4th 982 held that Civil Code § 3333.4 does not apply to an employee driving his employer’s motor vehicle at the time of an accident.  Thus, the plaintiff in Montes was not precluded from recovering for his pain and suffering despite the lack of personal insurance on the company vehicle he was driving at the time of the accident.

Another exception was created in Hodges v. Superior Court (1999) 21 Cal 4th 109, where the Supreme Court of California held that Civil Code § 3333.4 did not apply where the injuries were caused by a manufacturing defect of the vehicle.  In Hodges, the uninsured plaintiff’s gas tank ruptured when he was rear-ended.

A more recent exception was found in Ieremia v. Hilmar Unified School Dist., (2008) 166 Cal. App. 4th 324.  There, the Court of Appeal for the Second District held that Prop 213 did not apply to a wife who was legally the owner of a vehicle when she did not have actual or constructive knowledge of the ownership.  In Ieremia, the uninsured motorist was driving a car which, unbeknownst to her, had been purchased by her husband days before the accident.  In what was perhaps a bit of a stretch, the Court concluded that, as a matter of law, the plaintiff was not an “owner” of the uninsured vehicle for purposes of Civil Code § 3333.4, and that plaintiff was entitled to recover noneconomic damages such as pain and suffering.

While there is, perhaps, nothing wrong with the intended goal of seeing that all drivers on the road have insurance, Civil Code § 3333.4 is not be the best means to this end.  Prop 213 seems ill-suited to achieving its intended goal, and many, if not most, California drivers are completely unaware of its effects.  Instead of having the intended deterrent effect, it is often not until after a tragic accident that many, such as Mr. Patterson, will ever learn of the horrible consequences to innocent parties – and at that point, it is often too late.

For those who do have coverage and an uninsured motorist causes injuries, uninsured motorist coverage is essential; indeed, it is required by Insurance Code § 11580.2 for all policies in California, but one can opt out with a written waiver.  I, and the firm where I work, Heiting & Irwin, encourage everyone to maintain maximum uninsured and underinsured motorist coverage on their automobile insurance policies.  For minimal expense, one can ensure that they will have full coverage in the event of a tragic accident.  Further, having such coverage allows one to set one’s level of coverage, rather than being constrained by the amount of coverage carried by the tortious party.

In the meantime, my office will be working to see if Mr. Patterson may be extended and/or within one of the exceptions to Prop 213.  Mr. Patterson’s case is truly unfortunate and one that certainly merits exception to this heavy-handed legislation.

This article originally appeared in the July/August 2009 edition of the Riverside Lawyer.