Posts Tagged ‘personal injury’

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.

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.

VIRTUAL PRESENCE NOT SUFFICIENT BASIS FOR LIABILITY

May 30, 2012

By Sara B. Morgan, Esq.

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

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

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

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

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

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

In cases of catastrophic and personal injuries, issues of liability and causation are important to examine with a well-qualified, experienced attorney. The law firm of Heiting & Irwin has over 100 years combined experience representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.

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

May 22, 2012

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

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

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

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

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

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

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

Jean-Simon Serrano named a 2012 Southern California Rising Star by Super Lawyers

February 23, 2012

Jean-Simon Serrano has been named to the Super Lawyers’ 2012 Southern California Rising Stars list, an honor awarded to no more than two and a half percent of attorneys in Southern California each year. 

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.  

The Super Lawyers and Southern California Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.

Heiting & Irwin is proud to have Mr. Serrano as a part of our personal injury team.

Slander Conviction Being Appealed by Knox

February 7, 2012

By Sara B. Morgan, Esq.

Recent reports indicate that former exchange student, Amanda Knox, has filed an appeal of her conviction in Italy for slander (click link here). It is alleged that Knox slandered an Italian bar owner during the course of the investigation into the murder of Meredith Kercher, for which Knox was convicted but later freed. Apparently, Knox falsely accused the Italian bar owner of involvement in the murder.

The laws defining slander vary from jurisdiction to jurisdiction. For instance, in California, slander can be defined as:

“a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.”

Civil Code, Section 46. It is distinguished from libel, which is essentially slander in writing, based on the way it is communicated. See Civil Code, Section 45.

The validity of a potential slander claim varies based on the circumstances in which it arises, and it is important to discuss the details of any situation with a well-qualified attorney as soon as possible. At Heiting & Irwin, we have in excess of 35 years representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.

The Benefits of a Large Auto Insurance Policy

February 3, 2012

 by Jean-Simon Serrano

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

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

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

 Protection from Personal Liability

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

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

 Civil Code § 3333.4 “Prop 213” Considerations

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

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

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

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

 Protection Against Others (Uninsured/Underinsured Coverage)

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

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

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

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

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

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

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.

Are your kids safe at school if the school hires a pedophile?

May 5, 2011

By Sara B. Morgan, Esq.

According to the California Constitution, all students and staff of public schools have the inalienable right to attend campuses that are safe, secure, and peaceful. Cal. Const. Art. I, Section 28(c). All school districts must comply with this requirement, and are prohibited from taking official actions that violate or contravene its provisions.

But is a school district held accountable to these requirements, if it, for instance, knowingly employs a pedophile? The California Supreme Court says, maybe.

In the matter of C.A. v. William S. Hart Union High School District (2010) 189 Cal. App. 4th 1166, plaintiff alleges he was sexually harassed, abused, and molested by his high school guidance counselor, and further, that his school district knew the guidance counselor had engaged in such behavior in the past and/or was continuing to so engage.

Plaintiff’s claim was thrown out twice at the lower levels, whose decisions relied upon earlier cases holding school districts would not be liable for sexual molestation by teachers. However, in his dissenting opinion, Presiding Justice Robert Mallano discussed the potential for school district liability arising out of the negligence of other school district employees who were responsible for hiring, supervising, training, and/or retaining the known pedophile.

The possibility that a school district may, lawfully and without retribution, knowingly employ a pedophile, and knowingly fail to take steps to protect the students under its care, should be alarming to most parents. Hopefully, Chief Justice Tani Cantil-Sakauye and Justices Carlos Moreno, Marvin Bacter, Kathryn M. Werdegar, and Carol Corrigan, who voted to hear the case, will be able to ease the concerns of parents and children alike.

There are a number of situations in which students, and parents of students, injured during school and/or school activities can be compensated. At Heiting & Irwin, we have in excess of 35 years experience handling personal injury cases, including for injuries sustained during school and/or school activities. We offer free consultations, a warm and inviting office, and a friendly staff to folks interested in speaking about a potential legal matter. If you would like to speak with someone about your injuries, please call our office at (951) 682-6400 for a free consultation.

James Heiting interviewed regarding recent article in National Law Journal

April 13, 2011

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

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

March 17, 2011

by Jean-Simon Serrano

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

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

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

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

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

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

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

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

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

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

New California Case Holds Tractor-Trailer Drivers to Higher Standard

March 1, 2011

By Jean-Simon Serrano

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

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

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

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

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

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

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

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.

PROTECTING A LITIGANT’S RIGHT TO PRIVACY

January 20, 2011

by Sara B. Morgan, Esq.

In today’s modern social environment, it has become increasingly important to manage one’s personal and private information in order to protect against identity theft, fraud, and the like. As participants in a lawsuit, plaintiffs and defendants alike are often required to disclose a great deal of personal information, including financial and medical documents, identification information, and background details. However, one’s mere participation in a lawsuit does not automatically waive the right to privacy, and experienced, competent attorneys can assist clients in protecting their personal information.

For example, in the course of a personal injury lawsuit, a party’s personal information is often collected by a professional photocopier who makes distribution to the appropriate parties. These professional photocopiers are required by law to keep copies of the information collected for at least 6 months after the final resolution of the legal matter. Code of Civil Procedure, Section 2020.440. Maintenance of those files arguably creates a risk of exposing that personal information, especially in light of the ever-advancing developments in electronic technology and associated criminal activity.

However, the best defense, as it were, is a good offense, and the skilled attorneys at Heiting & Irwin are experienced in navigating the waters of discovery. We work tirelessly and diligently to protect our clients’ rights to keep their personal information private by narrowly tailoring the scope of discovery to only those matters at issue in the case. By doing so, we limit the invasiveness of the litigation process by protecting from disclosure as much personal information as possible.

While most clients are not thinking about protecting their personal information when they first call us, we are on the job from day one. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter with a law firm with over 35 years of experience in catastrophic injuries, wrongful death, auto and motorcycle accidents, medical malpractice, legal malpractice, premises liability, products liability, elder abuse/nursing home negligence, and Worker’s Compensation claims.

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

November 8, 2010

by Jean-Simon Serrano

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

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

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

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

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

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

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

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