Posts Tagged ‘insurance’

Five Things To Do After an Accident

July 9, 2012

Should you have the misfortune of being involved in an auto accident, it is important that you gather information and undertake a few responsibilities.

These are the most important steps to take following a collision. Click here for a useful form that you can keep in your vehicle. This form will help you gather important information at the scene of the accident.

1.         Obtain the information listed on our form:

Name, address, telephone number, driver’s license number of all drivers.

Insurance information from all the other drivers (Ins. co. name, telephone number and policy number).

License plate number and (VIN) for all other vehicles.

Name, phone number and address of any eyewitness to the collision.

2.         Report the accident:

immediately to the police and cooperate with them in preparing an accident report. If no police are available to respond to the scene, consider contacting the local police agency to determine if you can complete a report at a later time.  You will also need to fill out and file an SR-1 with the DMV.

to your insurance company, even if you are not at fault. If your insurance policy provides medical payments coverage and you require medical treatment because of the accident, your insurance company will provide you with information about how to use that coverage. Additionally, you may need to make a claim under your policy’s uninsured coverage (if your policy provides such coverage).

3.         Photograph:

Vehicles involved in the accident. Take several photographs that clearly show any damage. Take photographs from different angles and all four sides of the vehicles. Consider keeping a disposable camera in your car for this purpose, although a cell phone that takes quality pictures will work too.

Your injuries.

4.         Seek medical treatment without delay if you are injured or experiencing pain.

5.        Obtain legal advice by calling Heiting & Irwin before meeting with any insurance company representative, filling out insurance documents or giving a recorded statement or medical authorization to any insurance company (even your own). You have no obligation to provide this information before you have had the opportunity to speak with an attorney. If an insurance company representative contacts you before you are prepared to discuss your claims, politely explain that you do not wish to discuss the matter at this time, and you will contact them in the very near future to discuss your claims.

We suggest that you consult with an experienced personal injury firm.  Heiting & Irwin, offers free, no-obligation initial consultations. Our experienced attorneys will provide you with a thorough, thoughtful case evaluation that will help you to decide how best to proceed with your claims. Call (951) 682-6400, email or visit our website for more information.

ARE LAWSUIT SETTLEMENTS TAXABLE?

June 22, 2012

By Dennis R. Stout

The simple answer to the question regarding the tax consequences of a settlement claim is it all depends on the nature of the settlement!

 

Generally speaking, settlement money received from cases involving personal physical injury or physical sickness can be excluded from taxation (IRS Code sect. 104(a)(2)). Certain other types of settlement awards, (considering the nature of the item that the settlement replaces), may be taxable, including compensation for lost wages or lost profits; breach of contract damages, employment discrimination, emotional distress (if not related to physical injury or sickness); and punitive damages just to name a few.

 

In conclusion, only settlements from physical injury or sickness are non-taxable; generally all other types of settlements are taxable. Given the complexity of litigation, settlements and tax consequences, it is important and prudent to speak to an attorney, accountant, or tax advisor for clarification on this issue. Attorneys at Heiting & Irwin are always available to assist our clients with all of their legal needs and questions.

The Benefits of a Large Auto Insurance Policy

February 3, 2012

 by Jean-Simon Serrano

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

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

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

 Protection from Personal Liability

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

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

 Civil Code § 3333.4 “Prop 213” Considerations

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

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

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

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

 Protection Against Others (Uninsured/Underinsured Coverage)

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

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

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

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

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

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

What Factors Determine Noneconomic Damages in Personal Injury Cases?

November 23, 2011

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

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

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

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

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

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

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

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

November 4, 2011

By Jean-Simon Serrano

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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.