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How Fast Will My Case Settle?

One of the questions most often asked by clients is “How long will it take to get my case settled?” Good question! Most people who have been injured want to get their claim settled and move on with their lives.  The answer varies depending on the severity of injury, whether liability is clear, and whether there is an insurance carrier or company with adequate assets to pay for the damage caused. When you are injured through the fault of another, you first go through the claims stage. If you can get your case resolved in the claims stage, you’re fortunate, because that’s not the norm in major injury cases. Most insurance carriers want to drag things out so they can hold on to their money longer. Also, they rarely want to pay fair (i.e., full) value right off the bat.  They have found that dragging claims out tends to help them settle more cheaply. This is especially true for people without lawyers. Carriers know they can settle those cases far more cheaply, because a lay person has no idea how to value a claim. In building a claim, it is my job to obtain all your medical records and bills. This can take a few months, since health care providers (especially SF General Hospital) do not make us their priority. It can also take months to get records of Medi-Cal and Medicare payments. I have settled many cases in the claims stage, but it usually takes at least three to four months. A major exception to the rule that cases rarely settle quickly in the claims stage is where there are low insurance policy limits, such as a $15,000 state minimum policy in an auto accident case. It does not take much of an injury to max out a $15K policy.  But even major injury cases can settle quickly if there is the right policy limit. Example: a broken tibia with surgery, and the driver has a $100K policy. That claim should settle quickly for the policy limit, unless the driver has lots of monetary assets. (In general, chasing after the negligent person’s personal assets is a waste of time, because he doesn’t want to pay, and he can declare bankruptcy if you get an above limits judgment.) If you have been seriously injured and had surgery, you will take many months to recover.  Your level of recovery dictates when the case is ready to settle. You never want to settle prematurely, because when you do settle, you will sign a release of all claims forever and for all time. So if there is any possibility you might need more surgery, you cannot settle until you know your prognosis accurately. If your case cannot settle at the claims stage, either because of liability issues or the carrier is being cheap, the only way to get justice is to move on to litigation. Then you truly have a case, i.e., a filed lawsuit. In most California counties, it will take about a year and a half to actually commence a jury trial. Fortunately for you, 97% of all civil cases settle, some early, some on the eve of trial. It is not uncommon for a filed lawsuit to settle within about six months after the carrier realizes you’re serious. The takeaway: if you want to maximize your settlement, you need to be patient and prepared to have your claim take several months to a year or more to resolve.

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Uninsured and Underinsured Motorist Claims and Coverage

We often tell new clients that the most important advice we can give them, apart and separate from our prosecution of their claim, is to buy as much uninsured/under-insured motorist insurance coverage as they can afford. This is to protect themselves as fully as possible from losses from an automobile accident caused by another driver who has no insurance, or inadequate insurance. (California law requires drivers to only have $15,000 of liability insurance to pay other people they injure in an accident.) Time after time we talk to people who have been seriously injured in a car accident who will not be fully compensated because the other driver had too little or no insurance, and the injured person did not have enough uninsured/under-insured motorist coverage. A typical scenario is this: the other driver has a $15,000/$30,000 liability insurance (per person /per accident) and causes serious injury to our client justifying compensation of more than $200,000 for medical expenses, income loss and pain and suffering. The other driver’s insurance company pays the $15,000 per person limit, and now the injured person looks to his or her own insurance to pay the balance of the compensation under the under-insured motorist coverage of our client’s own insurance policy. We can recover adequate compensation only if our client has adequate under-insured motorist (UIM) coverage. Often, our clients need to have $500,000 or more coverage; far too often they do not. Our personal experience is that the cost of acquiring the additional higher uninsured/under-insured motorist coverage is a small price to pay to be fully protected, and the additional premiums usually seem to be a bargain ($500,000 UIM coverage is only $112 per year at one major automobile carrier). At the very least, the issue should be discussed with your insurance agent so you know how much more it will cost, and can make an informed decision.

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What’s Up in the Law of Bicycling

You’re riding along, feeling great, and all of a sudden a car pulls out from a parking place in front of you and knocks you over.  You’re hurt.  Badly.  What do you do? First of all, take care of yourself. Summon an ambulance and go to the ER or urgent care.  Also, make sure the police come to the scene and take a report (they will only come if there is a personal injury). That will be important for insurance purposes. Get the names and numbers of any witnesses (if the police come, they will get this information, but sometimes witnesses leave, so you should get the info too).   Witnesses are important because after the fact, many drivers lie to their insurance carriers and will say that you slammed into them and were speeding. The most common bike cases I have handled involve dooring, cars turning into bicycles, bikes in crosswalks, and bikes traveling too close behind a car that stops suddenly. Bicyclists are considered a “vehicle” under California law (the Vehicle Code, or VC) and have most of the same rights and responsibilities as cars. VC 21200  spells out the rules as regards bicycles. Cars are supposed to stay at least 3 feet away from bicyclists when passing (VC sec. 21760). Where there is no bike lane, you are allowed to share the road with cars, but you should ride to the right to allow cars to get past you, assuming it is safe to do so.  Don’t ride so close to the right that you get doored!  Drivers do have an obligation to look before opening their doors (VC sec. 22517). Don’t enter a crosswalk at speed (technically, you are supposed to walk your bike in a crosswalk, since you are a vehicle). A car may have assumed the crosswalk was vacant and then turn and hit you. Wear a helmet.  I have handled very sad brain injury cases where the rider did not have a helmet on. If you bike at night, be well lit. Even if the car is at fault for the resulting accident, you could be held comparatively at fault for the lack of a helmet or lights. This reduces or bars your right to recover money damages.

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How to Succeed at an MSC in San Francisco Superior Court

SFTLA CLE Presentation April 25, 2017 By Arnie Levinson and Chuck Geerhart The Mandatory Settlement Conference is your next to last chance at a formal settlement negotiation (you might get ordered to a day of trial settlement conference.) The Court usually schedules the MSC to occur about three weeks before trial. This means that sometimes costly expert depositions will still not have been taken, which in a smaller case can make a huge difference to the plaintiff’s bottom line recovery. The looming trial date also should mean that both sides have fully evaluated their cases and are ready to deal. Alas, we have found this is not always the case. SF Superior Court Local Rule 5 (http://www.sfsuperiorcourt.org/general-info/local-rules) states requirements for the MSC. Attendance by all decision makers is required (see LR 5D). LR 5E requires counsel to ascertain what liens will affect settlement and request in writing that lienholders attend the settlement conference. That request is supposed to be attached to the MSC statement. LR 5F requires the parties to engage in settlement discussions before the MSC. Plaintiff must make a demand five days before and the defense must make an offer two days before the MSC. LR 5F also states in detail what is required in an MSC statement. The local rules state the ideal. The reality we have seen as Settlement Conference Officers is far from the ideal. Attorneys for both sides often show up unprepared, sometimes having not even thought about offers or demands until that very moment. Here are the main pitfalls plaintiff counsel need to avoid in order to succeed for their clients: 1) Have a complete set of medical records and bills (including proof of what was paid under the Howell case). If you are missing this proof, the insurance carriers reduce the value of your claim. The total amount of medical expenses is not relevant to the defendant. It will only assess the case based on the Howell number. Get this to the defense well in advance of the MSC. The carriers often send claims reps who are unfamiliar with the case. The decision about value has already been made before the MSC by a supervisor who is not present. 2) If there is wage loss, be prepared to show medical proof that plaintiff needed to miss work, and proof of his earnings. Without this proof, be prepared to take a haircut on value. 3) Know the value of every lien, and have communicated with the lienholders. If you don’t know the value of the liens, the defense probably can’t settle with you that day. More important, you can’t tell your client what her bottom line is. For Medicare and Medi-Cal, you need to start communicating with the governmental agencies months before the MSC. You will not be able to get a lien amount the week before the MSC. 4) Know your client’s medical prognosis, preferably via a written report or deposition of the doctor. Claiming permanent residual injuries increases case value, but you can’t just make the bald assertion that your client is hurt forever without medical proof. Get the physician nailed down about prognosis and provide the proof to the defense. 5) The other side of the prognosis coin: if the defense medical exam has happened, demand a copy of the report before the exam happens, and push the defense to get you the report well before the MSC. That report can help both sides. 6) If you need a key deposition , say of a defendant’s employee, take that depo long enough before the MSC that you have a transcript. Speculating about what a witness might say does not help in negotiations. 7) Very important: meet with your client well before the MSC. Get her prepared for what will happen. Have a well thought out settlement demand, and a strategy for negotiating against the defense. We have seen many instances in which the plaintiff’s counsel and his client are butting heads over the direction of settlement, simply because the attorney didn’t take the time to craft a strategy with his client’s involvement. 8) Talk to defense counsel and try get an offer on the table before the MSC. Tell them LR 5F requires it. 9) It is highly unlikely that the settlement conference officer will be able to read through extensive exhibits. Attached the critical ones to the brief and highlight the relevant portions.  Once you are in the MSC, what do you need to do to succeed? The fact of the matter is that both the defense and the plaintiff usually want to settle the case. And, where parties on both sides of the case have carefully evaluated the case, it is highly likely to settle. While public evaluations may vary widely, in reality, the parties often have similar evaluations. Or at least their evaluations are close enough that trying the case over the difference does not make sense. Most clients are risk averse and don’t really want to go to trial and don’t have any idea what will happen at trial. They will often take less than the case is worth to avoid trial or believe in the concept of “a bird in the hand is worth two in the bush.” Indeed, this concept is very true. Trials are expensive, time consuming and unpredictable. It is not always true that the amount offered at the MSC will still be available thereafter. If you leave the MSC without a settlement and thereafter agree to the amount offered by the defendant, you may be on a slippery slope trying to get the defendant to settle. The more candid you are with the settlement conference officer, the better chance you have of settling your case. Point out the strengths in our case, but also acknowledge the weaknesses in your case. The more credible you are, the more the SCO will tend to rely on your version of events. Nonetheless, be careful about giving the SCO your bottom line too early. Expect to settle for a low amount if you are not ready to try the case. If you are unable to answer important questions about the case at the MSC, the SCO will...

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Should your lawyer be your friend

I represent people severely injured in accidents.  My core mission is to get them as much money as possible to help compensate for their loss. But along the way, I develop relationships with my clients.  Sometimes the relationship remains very businesslike– “get my case settled for fair value as fast as possible.”  I try to do this.  Unfortunately, the corporations (insurance and others) who control the money oftentimes do not want a fair or fast settlement.  They would rather hold on to their money while my clients suffer.  My job is to be the enforcer. When I first meet a prospective client and sign him or her up, we are both looking for cordiality– we want to like each other, because we are going to be in a relationship that may least a year or more. In fact, I often decline to represent prospective clients with whom I do not “click”– even if they have a good case.  I want to enjoy representing my clients. I usually make a pre-litigation settlement demand.  To do this, I need to understand my client’s injuries, medical treatment and prognosis so I can demand the right amount. There is a lot of bonding with client in this process. I spend a lot of time learning the client’s records, and talking to the client to understand her pain.  I have to explain that we start with a demand higher than what we will ultimately receive in settlement– that’s just the way negotiation works.  This is the first time I have to be forceful and firm with the client– she cannot come out of this conversation thinking that the amount demanded is what she will receive. Once a case is in litigation, my relationship with the client invariably deepens.  The typical client has never filed a lawsuit, and is somewhat flummoxed by the all the arcane details of litigation, starting with discovery.  I have answered form interrogatories hundreds of times in my career. My clients, no matter how educated, uniformly find them confusing and oppressive.  Here is where my role as professional has to be paramount: I have to insist they do a great job in helping me answer the interrogatories, explaining that these are sworn response that can be used against them in court. I can also empathize (“You’re right, these are really a pain”), but I can’t let them off the hook. Depositions are a stressful time for the client. I always spend as much time as needed in person getting the client ready.  In this process, I may have to deliver some tough truths to the client about how she should be answering questions.  We practice the questions, especially if there is a tough liability area. I run the risk of offending the client, but it is my job to get her ready not to be manipulated by defense counsel.   As the case proceeds, I have a duty to keep the client apprised of what’s happening, both good and bad.  Clients fall in love with their cases.  Lawyers do too. We are the professionals– we sometimes have to break bad news to the client (“Your surgeon is unwilling to say that the accident caused the need for surgery”).  This bad news almost always means less settlement money is available.  Now you are really hitting the client where she lives– she’s been counting on that money!  Maybe for years.  Yes, this is where the client may blur your role – aren’t you her friend? Aren’t you on her side?  Client: “It sounds as if you’re taking the insurance company’s side on this.” I have a response: “One of the reasons you hired me, really the most important reason, is to give you unvarnished professional advice about the value of your claim.  I wouldn’t be doing my job if I didn’t tell you the good and bad about your claim. I need you to trust and respect my many years of experience doing this.”  I find most clients respect this statement. They may not like it, but often it is a turning point in the relationship when a case has reached this stress point. In mediation, where the client must make financial decisions fairly rapidly, the lawyer must be extremely careful not to blur friendship with professionalism. Clients hear a dollar amount offered, like $100,000 and may not realize that from that amount must come attorney’s fees, costs, and medical liens. The client might net only $50,000.  I must run numbers with the client at the mediation to make sure the client has at least a rough approximation of her net. When the net is lower than the client wants (almost always), then I must again be the professional and explain the probable outcome if the case is tried. Yes, you might do better. But you might do worse. And costs and fees will be higher. “Let me run some numbers for you under all scenarios.”  Most clients simply want to feel well-informed about their options. They are strangers in a strange land. It’s all mystifying, and it involves their money. If we can help demystify the process, we are doing precisely what they hired us to do. Throughout, we can also be their friend. I have remained friendly with most of my clients for many years after the representation. Some have become good social friends. I always try to end every engagement on a positive note so they feel they were well-protected in the legal system.

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Nuts and Bolts of Liens in a Basic Personal Injury case

1)  When is it a lien? A  lien is a security interest in property. “Lien” is defined as “[a] legal right or interest that a creditor has in another’s property, lasting usu. until a debt or duty that it secures is satisfied.”* (Black’s Law Dict. (9th ed. 2009) p. 1006, col. 1.) A  lien is defined in the Civil Code 2872 as “a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act.”   Behniwal v. Mix (2007) 147 Cal. App. 4th 621, 635 If it is not a lien, it is only a claim for reimbursement.   Don’t use the term lien loosely.   Don’t ever sign any “letters of protection”– the health plan language controls the rights and responsibilities of the insurer and the insured. 2)    Do You Notify the Health Plan and Wake the Sleeping Giant? Advise client that she may have contractual obligation to notify health carrier What to do if claimant shows up after case resolved 3) Situations Where You the Attorney Must Notify the Lienholder (based on statute) a)  Medi-Cal – Welfare and Inst. Code §14124.73(a) b)  Medicare 42 U.S.C. 1395Y (b)(2)(B); 42CFR §§ 411.24(g), (h), and (I) c) Workers Comp:   Employee must notify the employer of the pending settlement in order to allow the employer to assert its statutory reimbursement/lien rights.   Lab. Code § 3860(a) If lawsuit is filed, you must send a copy of the complaint to the employer. Labor Code § 3853 d) SF General Hospital: SF Health Code sec. 124.5: “When any recipient who has been billed for the cost of medical care rendered by the San Francisco Department of Public Health or the San Francisco Fire Department fails to pay in full for such care and asserts an action or claim for damages against a third party or insurance carrier, the recipient’s attorney retained to assert the action or claim shall provide written notice of such action or claim by personal delivery or first-class mail to the Bureau of Delinquent Revenue Collection in the Office of the Treasurer-Tax Collector within 10 days of asserting such action or claim” (Official text available at www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:sanfrancisco_ca) SF County could also pursue a lien under 23004.1 of Govt Code, but that lien is good only against a judgment and not a settlement. See Mares v. Baughman case. 4) Get the Entire Plan The Plan language controls, not the Summary Plan Description (SPD) Prichard v. Metropolitan Life Insurance Company 783 F.3d 1166 (9th Cir. 2015) held that a provision in an ERISA plan’s SPD that was not contained in the formal plan document (insurance certificate) was unenforceable.   Emphasizes the importance of getting both the SPD and the formal plan document in evaluating ERISA liens. Make sure you have the right year– plans change Ask for proof the member signed off on the Plan. 4) Read the Plan Made whole doctrine– when plaintiff not getting full value of the case from the settlement (e.g., policy limits case)– can bar reimbursement claim entirely. Sapiano v. Williamsburg Nat. Ins. Co (1994) 28 Cal.App.4th 533.  Also, if the plan is silent as to “made whole,” there is a presumption that made whole is available to plaintiff.   Progressive West Insurance Co. v. Yolo County Sup. Ct. (2005) 135 Cal.App.4th 263, and Barnes v. Independent Auto Assn. of CA H&B Plan (9th Cir.1995) 64 F.3d 1389. Common fund– pro rata reduction of the claim for fees and costs Does it restrict itself to recoveries from 3rd parties? 7) Why does ERISA matter, or not? ERISA plans are employer sponsored plans (but not governmental entities or church) If it’s an insured plan (not just administered by what looks like an insurance carrier), then it is subject to state law, such as Civ. Code sec. 3040, common fund, made whole etc.  However, the plan language can exempt itself from made whole or common fund. If it’s a self-insured plan, it can be as Draconian as the employer wants it to be.  U.S. Airways v. McCutcheon 133 S.Ct. 1537 (2013)  It can seize the entire settlement.  And UM/UIM payments (unless it restricts itself to recoveries from 3rd parties) 6) Interplay with CC 3040, 3045.1 Civil Code sec. 3045.1– Hospital liens.  Must be served by certified mail (CC 3045.3) Recovery limited to 50% of net proceeds to plaintiff. Civil Code §3040: a)  Capitation reduction (Kaiser) b) Limits recovery 3040 (c) If the enrollee or insured engaged an attorney, then the lien subject to subdivision (a) may not exceed the lesser of the following amounts: (1) The maximum amount determined pursuant to subdivision (a) or (b), whichever is applicable. (2) One-third of the moneys due to the enrollee or insured under any final judgment, compromise, or settlement agreement. 3040(e)– further reduces lien for adjudicated comparative fault 9)   Federal Employees Health Benefits Act (FEHBA) Empire Healthchoice Assurance v McVeigh, 547 US 677 (2006).  Held: No federal jurisdiction for reimbursement claims.  Claim is subject to state law governing reimbursement as long as not inconsistent federal law.  There is nothing spelled out in FEHBA re reimbursement, so if the plan involved is an insured plan, that makes state law and Civil Code sec. 3040 applicable. 10) VA and TriCare (military) Liens “Super lien”– no obligation to reduce, but they will depending on how much the service member is getting 11) SF General Hospital Balance Billing SF General will often attempt to bill for amounts above what the patient’s private health insurance paid.  This is known as “balance billing.”  In Prospect Medical Group, Inc. v. Northridge Emergency Medical Group (2009) 45 Cal.4th 497, the California Supreme Court held that emergency room physicians may not bill service plan members directly for sums that the member’s HMO plan regulated by the Knox-Keen Act has failed to pay for the members’ emergency room treatment. Prospect is not the end of the inquiry, however.  Some policies fall outside the holding of Prospect.  To benefit from the Prospect bar...

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Don’t Let Litigation Costs Overwhelm Your Personal Injury Lawsuit

Although something like 97% of all personal injury lawsuits eventually settle short of jury trial, they can nonetheless be very expensive because of the costs of litigation. Most reputable injury lawyers advance costs for the client, but these advanced costs must be re-paid to the lawyer when (and if) the case settles or goes to trial judgment. My typical client trusts me to ensure that costs do not get out of hand, or to tell the client if costs are becoming a problem that could hinder settlement of the case.   I mediate a lot of cases, either as a retained mediator or a court appointed Settlement Conference Officer. I frequently see cases where the costs have become so high they threaten the plaintiff’s ability to settle with any decent net monetary recovery.  How does this happen? As a starting principle, most cases do not involve powerhouse catastrophic injuries (think quadriplegia) where costs almost do not matter because the settlement will be so large.  No, most cases are worth less than $100,000.  Many are worth less than $50K or even $25K (think soft tissue injury cases, like neck or back strains).  Costs can very quickly become a problem, especially since the plaintiff probably has to pay back a medical lien to this healthcare insurer (please see my blog on this site about liens). What are examples of typical litigation costs?  These are some rough figures: Filing the complaint $500 Taking a deposition $500-1000 depending on length and if you videotape Ordering a copy of deposition taken by the other attorney $300 Buying copies of subpoenaed medical and employment records– varies, but can easily hit $3000-5000 in an injury case involving prolonged medical treatment Medical expert: $750 to $1000 per hour Engineering expert: $500/hour Economist: $400/hr. Expert witnesses are far and away the largest cost in a case.  When I hire an engineer to do accident reconstruction, I know I am spending $5000 minimum and likely $10K if the case requires much work up. If I hire a rehabilitation physician to examine my client and write a report, I know I am looking at $10K.  Same for a vocational rehab expert. Depositions can be a large cost, because there can be 20 or more in a large case. But the plaintiff’s main problem is in the smaller case. Let’s assume a case worth about $50,000 with a $10,000 medical lien that can probably be resolved for $6,600. So after the 1/3 attorney fees and the lien, the plaintiff nets about $27,000.  Then there are the costs.  If the case has settled without litigation, the costs should be low, around $1000 or less for medical records. If the case is litigated, count on depositions of the plaintiff ($300 for a copy), the defendant ($500), and ordering some subpoenaed records ($600). If the defense decides to depose doctors, there could easily be another $1000 in deposition costs. If plaintiff’s counsel decides she needs to talk to plaintiff’s doctors before the depositions (which is recommended unless the records show exactly what the doctor’s opinions are), that can be another $1000. The costs of a doctor’s report could be another $1000. If it is disputed liability accident, you might need a liability expert. Add another $5000. Just these costs add up to $9400, and that is a very realistic figure in my experience.  Now the plaintiff only nets about $17,000.   Now imagine the above cost scenario in a $25,000 case with $5000 medical lien repayment. Do the math. You will see that plaintiff nets almost nothing with those costs. How can an injured plaintiff avoid this problem of excessive costs? If your case is worth less than the small claims max of $10,000, consider handling the case yourself. There are no costs in small claims court other than the filing fee of $50. You also won’t pay attorney fees, because there are no attorneys allowed in small claims court. If your case needs an attorney, be sure to choose an experienced lawyer with a proven track record of resolving cases for satisfied clients. Newer lawyers oftentimes have “hung their shingle” and have a nice website,  but have no idea how to keep costs low. They may also not have the kind of monetary reserves to fund a larger case. That’s a big problem, because the insurance company has unlimited funds to battle your case. Corollary point: the insurance carriers don’t care how much they spend to defend the case. They may spend just to protract the case and force you to waste resources. Experienced lawyers will be sure not to let costs get out of hand, and will tell you if there’s a problem. Be wary of firms that want to hire lots of experts early.  Someone has to pay these experts, and it’s you. (Be especially wary of firms that want to refer you to a chiropractor of their choosing. That can turn into a very expensive cost that you will pay eventually.) What you can control is when you settle. If there is a fair settlement offer made halfway through the litigation before costs have gotten too high, that settlement may make more sense than “taking it to the mat” and getting close to trial or actually trying the case. You may net more by settling for a little less than your ideal amount, because your costs will rise as you get close to trial. A word about trial: trials are very expensive, which is one reason few cases get tried. At Paoli & Geerhart, we pride ourselves on being one of the few firms that can actually try a case, and we have the track record to prove it. But be forewarned: your costs will go through the roof at trial. You may be able to recover some of these costs from the defense if you win, but you won’t get them all, especially expert fees unless you have beaten your CCP 998 offer. A physician may charge $5000 to 10,000...

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Tort “Reform” Marches On at the Expense of Public Safety

I recently presented at a local law school about a great program run by the Diversity Committee of the San Francisco Trial Lawyers’ Association (SFTLA) aimed at bringing diverse young lawyers into the plaintiff bar.  I was speaking to students who were mostly in the 22-26 age range. One of them asked me about the effect of “tort reform” on my practice. Torts are civil wrongs not arising out of breach of contract, anything from a rear end auto collision to a failure to provide a safe stairway, which results in injury. Tort reform refers to efforts by political, business and insurance interests to limit the rights of injured people to recover fair damages for things like medical expenses, wage loss, pain and suffering and emotional distress. Tort reform is a dirty phrase to the plaintiff’s bar, and should also be considered bad news by the general public, since it threatens your ability to get fair compensation when someone else negligently (or intentionally) harms you. So I asked my assembled group of law students if they remembered George W. Bush giving the State of the Union address in the 2000s.  Not one hand was raised! I guess this made sense, as even a 25 year old in 2016 would have only been 15 in 2006, and may not have been watching what is usually a boring speech.  I told the students that every year without fail, the President of the United States had urged Congress to limit the rights of citizens to recover damages in “frivolous” lawsuits. This was at the behest of the business lobby, which was his donation base. Then I asked if anyone had heard of the McDonald’s “hot coffee” case.  Everyone raised his or her hand! This was fascinating, since that case occurred in 1994. The staying power of the Macdonald’s case is amazing.  It proves that a story resonates with the public far more than any number of speeches, web postings, or commercials. Tort reform often does well at the ballot box. In 1986, California voters approved Proposition 51, which basically cut in half the damages injured people can claim if they are injured by two or more negligent actors, but one of them is uninsured or inadequately insured. People (i.e., consumers) voted for Prop. 51 (now codified as Civil Code 1431.2) by a whopping margin of 62% versus 38% opposed.  This for a bill that cost the consumer big time.  But they believed what they were told– that lawsuits costs them money in the form of higher insurance premiums and higher prices charged by business. The notion that the threat of civil liability forces business to act more safely was ignored. Getting back to the McDonald’s case. Full disclosure: the following is partly cribbed from the website of Consumer Attorneys of California or CAOC (https://www.caoc.org/?pg=facts). The facts most people have heard are: In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered. Most people thought she was driving. In fact, Stella was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap. The coffee was, per McDonald’s policy served it at a temperature (180-190 degrees) that could cause serious burns in seconds. Stella’s injuries were far from frivolous. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns and required skin grafts on her inner thighs and elsewhere. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases. Stella initially offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly. But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. The punitive damage award was ultimately reduced by more than 80 percent by the judge. Ultimately, Mrs. Liebeck and McDonald’s reached a confidential settlement, believed to be less than $200,000. No one knows this last part. They remember the $3 million. There is a great list of all the facts the jury heard on CAOC website showing that McDonald’s knew its coffee was dangerously hot, but kept on selling it. Sort of like the Ford Pinto exploding gas tank in the 1970s, except no one died. They just got horribly burned.   There is also a great documentary film called “Hot Coffee” which address the McDonald’s case and three travesties of justice caused by tort reform. So what to make of all this?  If you are a consumer, do not assume that big business is looking out for you.  Business wants a frictionless environment, which means no civil liability– zero, zilch, nada. They will keep putting tort reform measures on the ballot until they get there.  One of their favorites is to limit damages injured people can recover (like Prop. 51, or the horrible medical malpractice legislation, which caps pain and suffering damages at $250,000 even if you’re rendered a quadriplegic due to medical error.) The other big impact of tort reform is that when I pick a jury, I always hear about the McDonald’s case and other so-called frivolous lawsuits from my jury panel....

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| Read Time: 2 minutes | Chuck Geerhart Blog

“The pedestrian always has the right of way”- true or false

By Chuck Geerhart I am handling more and more pedestrian injury cases.  There are a lot of cars, trucks, buses, bikes, and skateboards out there. Everyone is looking into his or her phone. It’s not surprising pedestrians are getting hurt all the time.  What are your rights and responsibilities as a pedestrian? Under the law, drivers must yield to pedestrians in most, but not all, circumstances. “The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian” California Vehicle Code § 21950(a & c) This section refers to intersections without illuminated traffic signals. Note the term “unmarked crosswalk.” We all know what a marked crosswalk looks like. An unmarked crosswalk runs between all streets (but not slender alleys) which meet at approximate 90 degree angles. Pedestrians have the right of way when crossing at an unmarked crosswalk. Pedestrians do not have the right to simply charge out into an intersection. “No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard” CVC § 21950(b). Drivers approaching a crosswalk must stop if another vehicle ahead of them has stopped, even if they can’t see why the other vehicle has stopped.  Vehicle Code § 21951 provides: “Whenever any vehicle has stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle.”  By its plain language, this code section is not limited to intersections without traffic signals. I am handling a wrongful death case right now where a woman was crossing against a red light, but was in the crosswalk. One car stopped for her, but a car approaching from the rear did not. That car did not see her and killed her. The case is in litigation. Because a car is so powerful, pedestrians have a lesser duty of care.  California Civil Jury Instruction (CACI) 710 (Duties of Care for Pedestrians and Drivers) provides: “The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.”  

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