Legal Blog - Page 3 of 4 - Chuck Geerhart

Jan 14, 2017 | By Chuck Geerhart | Read Time: 4 minutes | Chuck Geerhart Blog

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.

Nov 19, 2016 | By Chuck Geerhart | Read Time: 5 minutes | Chuck Geerhart Blog

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...

Nov 10, 2016 | By Chuck Geerhart | Read Time: 4 minutes | Chuck Geerhart Blog

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 the Law Office of Chuck 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...

Sep 20, 2016 | By Chuck Geerhart | Read Time: 4 minutes | Chuck Geerhart Blog

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....

Aug 9, 2016 | By Chuck Geerhart | Read Time: 4 minutes | Chuck Geerhart Blog

A Pro Bono Victory

It was just another Saturday at the Bar Association of San Francisco’s Lawyer Advice and Referral Clinic (LARC) in the Bayview neighborhood of San Francisco. I’ve been volunteering at LARC for 21 years. I call it “bite size pro bono” because you don’t take on clients for representation– you simply try to answer their questions or refer them to a lawyer for further consultation. But this day was different. A nice older couple came to my table. The man, let’s call him Edwin, had been sued for an injury auto accident in which one of the cars, a red Toyota Corolla, had struck and injured a person. It was a hit and run. A witness gave police a license number that belonged to Edwin. Nationwide Insurance wound up paying $50,000 in uninsured motorist benefits to the injured person. Nationwide then sued Edwin for subrogation. As alleged owner of the car, he had liability up to $15,000 under the law. But here’s the rub: Edwin never owned a red Corolla. He had a green Honda Accord. The eyewitness got the plate wrong. Edwin was insured by Geico. He obtained a copy of a letter written by Geico to the injured plaintiff, in which Geico said there was no coverage for the vehicle which struck him. Geico never wrote any letters to Edwin, so he was in an information vacuum. Edwin, who is a Spanish speaker and not well-versed in the law, assumed he had no coverage. When Edwin did not answer the complaint, Nationwide took a $15,000 default judgment against Edwin. It then levied on his bank accounts and seized $11,000. At this point, Edwin, who owned a home, realized he had to get legal help. Through a legal insurance plan offered by his wife’s work, he found a lawyer. Unfortunately, the “legal insurance” only paid the first $400. The lawyer charged Edwin $10,000 to have the default set aside. He then wanted another $6000 to defend Edwin in the ongoing Nationwide lawsuit. The family couldn’t pay that. As I heard their tale of woe, the wheels were turning in my head. They obviously needed a lawyer to defend them. But there was no money in this case- they’d already spent their savings on lawyer #1, and their other savings had been seized by Nationwide. Nationwide had discovery (interrogatories) pending that needed to be answered. In short, it was doubtful any lawyer would take this case on short notice. Unless I took it. I had the time, I wanted to help, and I know auto insurance claims. So after just a little hesitation, I said to Edwin and his wife, “I’m going to be your lawyer.” She burst into tears. I realized I had helped relieve them of unbearable pressure, at least temporarily. That felt good. The next week, I had them sign a fee agreement stating my work would be free unless there was a way to recover fees from someone else. I then contacted Geico and demanded they provide a defense, even if they disputed coverage. I wrote to the Nationwide lawyer and demanded they refund the $11,000 that had been seized. To my surprise, Nationwide promptly refunded all the seized funds. I also answered Nationwide’s discovery and propounded discovery to Nationwide. The Nationwide lawyer said he would consider dropping the case if it was truly a case of witness misidentification. Then, a few weeks later, Geico agreed to provide a defense, and assigned defense counsel. I stayed on as associated counsel to push Geico to pay the $10,000 in attorney fees the first lawyer charged. Geico kept asking for proof this amount had been paid under a fee agreement. I continued to harass Geico, telling its claims people that Geico was already in bad faith– would Geico like to do something right for a change? After three months, Geico finally sent a check for the full amount of attorney fees incurred. It was a pleasure to inform the family they were getting back to even monetarily. The only thing remaining is for the Nationwide suit to be dismissed, which I’m sure assigned defense counsel can achieve. I will remain in the case to monitor that result. Although I probably could claim a fee from Geico, I don’t want it. My reward is the gratitude of my clients. I could go on endlessly about how Edwin was poorly served by the lawyer he hired– it borders on malpractice and an ethics violation. First, the lawyer overcharged. The $15,000 judgment probably could have been settled for half its value. Second, he never tried to get Geico to pick up the defense, which we know it would have. Third, after getting the default set aside, he never asked Nationwide for a refund. Instead he asked the clients for more money. But let me end this piece on a positive note. This case gave me as much pleasure as any multi-million dollar case I’ve ever handled. I was helping real people who were in a jam that was real and big for them. I was righting a legal wrong. I was correcting bad lawyering. I fought a big insurance carrier. It doesn’t get any better than this. I urge everyone to do pro bono work– either full representation as in this case, or “bite size” in a legal clinic. It’s not only a moral responsibility for us who have been given so much, it’s a pleasure. If you’re intrigued about doing pro bono, please call me to get started.

Jul 27, 2016 | By Chuck Geerhart | Read Time: < 1 minute | Chuck Geerhart Blog

Don’t get beaten up by an assault case

Plaintiff Magazine Article How to decide whether to take on these challenging cases, and a game plan for when you do If your practice is like mine, you get calls from prospective clients who have been assaulted by someone. If it’s simply a case of “some guy attacked me in the street,” the case probably has no recoverable damages. I do not spend much time talking to these folks. Even if the perpetrator has assets, it can be difficult reaching them. If it’s a case of “my neighbor assaulted me,” you might think there would be homeowner’s coverage.

Jul 26, 2016 | By Chuck Geerhart | Read Time: 3 minutes | Chuck Geerhart Blog

Can I Sue for Assault?

By Chuck Geerhart One of the most common calls we receive at the Law Office of Chuck Geerhart is about assault. Often, a person has been suddenly assaulted in the street. Or by someone in the home. Or by a landlord, a bar bouncer, or another bar patron. Are these types of cases worth pursuing? The answer is, “It depends.” First, the threshold question: Is there money available? There is no sense pursuing an assault case if there is no source of funds to pay a settlement or judgment. So, in the common case of assault on the street, I usually tell clients to forget it. The kind of lowlife who commits a brazen street assault has probably not been successful in life, and has no money. I also get calls where the client says the assailant has a house, a nice car, a job, or other assets. This is nice to know, but you’re probably never getting any personal assets even if you win at trial. Those assets will scatter with the wind. Or the perpetrator will declare bankruptcy, which usually has the effect of discharging your trial judgment completely. Another thing to consider: most lawyers working on a contingent fee basis do not want to have to become collection attorneys after getting a judgment. So finding a lawyer for the average assault on the street case will be difficult, no matter how badly hurt you are. What about insurance? Insurance by law cannot cover intentional acts, like assault. See Insurance Code sec. 533. Insurance can cover negligence of a premises owner, as discussed below. So what is a “good” assault case? Sorry to say, but you need a major injury. Bumps and bruises alone do not make a good assault case, because these cases are expensive. There will be a summary judgment motion (where the defendant tries to have to court dismiss the case), which often takes 30 or 40 hours of attorney time to oppose. There will be medical and liability experts, which can cost tens of thousands of dollars. I generally do not take assault cases unless there are broken bones with surgery, or a brain injury. These are the kinds of injuries that can result in a large verdict or settlement. Smaller cases are not cost effective, and often results in a net monetary loss. As a matter of practical economics, I cannot keep my law practice open to help others if I take losing cases. Let’s assume you have a major injury case. Next we need some source of settlement funds. Here’s a classic good case: a Walgreens employee assaults a customer. Walgreens is liable for the torts of its employee. California law has consistently held that fights or assaults in the workplace are generally within course and scope of employment (respondeat superior). See Rodgers v. Kemper Construction, 50 Cal.App.3d 608 (1975) [upholding tort liability of an employer for an assault committed by an employee on a construction site]. Although insurance will not cover an intentional tort, a self-insured corporate employer (like Walgreen’s) is usually financially responsible and can pay. Another decent scenario is where a bar bouncer injures a customer. This may be covered by insurance as negligence. It should go without saying that the customer must be pure as the driven snow– not drunk or belligerent. If the customer was acting up and forced the bouncer to get involved, he could be found partially or totally at fault. A 3rd common scenario is where another bar customer assaults the client. The key here is what kinds of controls were in place to avoid the assault. Did the bar over serve alcohol to the assailant? Was the assailant a minor who shouldn’t even have been in the bar? Was the bar (or nightclub or arena) understaffed? How long did the assault take to develop? The longer the better, because it means the staff should have stopped the growing conflict. Did the bar take reasonable steps to ensure the safety of its patrons? The leading case in this area is Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224. In the bar assault case, there may be insurance available, but often the bar has not purchased the right kind. I always look to others for possible insurance, such as the security company or the event planner or DJ. To summarize, even if you have a major injury and a source of settlement funds, a liability finding is almost never certain in assault cases. I have been able to settle every assault case, but only because I was careful in case selection. For more detailed legal information on how to approach assault cases, please see my article “Don’t Get Beaten Up by an Assault Case,” which is on our website and easily found on Google.

Jun 30, 2016 | By Chuck Geerhart | Read Time: 2 minutes | Chuck Geerhart Blog

Sexual Assault in the Workplace = Sexual harassment

Most people have heard of the sex abuse cases against the Catholic Church and the Boy Scouts of America. Those cases involve negligent failure by the organization to detect aberrant behavior by priests or scoutmasters. On a negligence theory, the plaintiff has to show facts that would place a reasonable employer on notice that it has a situation that should be investigated. But what if the abuse of a minor (or an adult victim) happens in the workplace? Then the plaintiff/claimant adds the potent weapon of sexual harassment. Under the California Fair Employment and Housing Act (FEHA), Govt. Code sec. 12940 et seq., there is no need to even show notice. Under FEHA, the employer itself is strictly liable for workplace harassment by a supervisor. There is no need to rely on agency concepts. [State Dept. of Health Services v. Sup.Ct. (McGinnis) (2003) 31 C4th 1026, 1042; Myers v. Trendwest Resorts, Inc. (2007) 148 CA4th 1403, 1420. FEHA defines “supervisor” as anyone having authority from the employer to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” [Gov.C. § 12926(t) (emphasis added)] The employer is strictly liable for sexual harassment of a job applicant by an employee authorized to interview and hire applicants. Although a job applicant has no “supervisor,” the alleged harasser is nonetheless the employer’s agent. [Doe v. Capital Cities (1996) 50 CA4th 1038, 1046, 58 CR2d 122, 127—casting director’s employer may be liable for sexual harassment of job applicant that occurred at casting director’s home] That some of the sexual conduct occurred off-site is no bar to recovery. Doe v. Capital Cities (1996) 50 CA4th 1038, 1047-1049. As an example, in Doe v. Oberweis Dairy, 456 F. 3d 704 (7th Circuit 2006), a supervisor’s statutory rape of a minor employee occurred at his apartment. It was workplace related sexual harassment because their relationship began with flirtatious talk and erotic touching while at work: “The sexual act need not be committed in the workplace, however, to have consequences there.” [Doe v. Oberweis Dairy, supra, 456 F3d at 715] The takeaway: if an employee is sexually assaulted or harassed in any way in the workplace by a supervisor/manager, the employer is liable.

Jun 3, 2016 | By Chuck Geerhart | Read Time: 2 minutes | Chuck Geerhart Blog

What to Look for in a Personal Injury Lawyer

In days of old, people found lawyers through family or friends, by word of mouth. In the internet age, when people are hurt by someone else, they head for the internet. This can be a very bad way to find a lawyer. Sure, there are some fine lawyers, including us, with websites findable on the net. But how do you know the sites you see on page one of Google are for truly excellent firms? The answer is, you don’t. When you look at the first page hits, there are ads for firms. That tells you nothing other than they paid to be seen. Then you see a list of organic hits. That can simply mean they hired a good SEO (search engine optimization) person to convince Google’s algorithm to put their site on page one. Once you go into the website, it looks slick, there are lots of client compliments, etc. But you still don’t know the heart and soul of the firm. So here are some things to look for: What kind of client care will you get? Does the firm promise ongoing direct contact with the lawyers? You can test this by insisting on meeting with the lead lawyer. Many of the “settlement mills” are run by paralegals or junior lawyers. You will never see the main lawyer after the first contact. They also tend to settle your case for less than it’s worth. Have they ever tried a case? Here’s a dirty little secret: many of the personal injury lawyers out there have never tried a jury trial. That’s a huge problem for you, because what if your case needs to be tried? They won’t know how to do it. Ask the lawyer to show you a verdict or judgment form to prove they have tried at least one case in the past few years. Are you one of hundreds of clients? Ask the firm how many cases they have. If it’s in the hundreds, chances are good you have found a settlement mill. Do they try to refer you to a “doctor”? This is a method to build up medical expenses and perhaps increase the settlement value of the case. This is not good practice. The “doctor” is probably a chiropractor. Chiropractors are not real medical doctors. They have nowhere near the education and training that true doctors have. Being treated by a chiropractor can often reduce the value of your claim, since most insurance carriers look askance at chiropractic care. Your best approach is to listen to your primary care doctor’s advice and get referred to real doctors and physical therapy. What does your heart say? When you are on the phone or talking in person with a lawyer, do you feel the lawyer is really listening to you and cares about you? Or are you just another piece of inventory for a law business? Our philosophy at the Law Office of Chuck Geerhart is to take a moderate number of serious injury cases so we can devote all the time needed to have a personal relationship with the client and deliver professional service leading to an outstanding result.

May 23, 2016 | By Chuck Geerhart | Read Time: < 1 minute | Chuck Geerhart Blog

What Can You Do When An Insurance Carrier Lowballs You?

We see it all the time. A person is injured in a crash, makes a claim for damages with the other driver’s insurance carrier, and the carrier offers some piddling amount that doesn’t even cover medical bills. They are playing it like a good major league pitcher: they throw you curveballs in the dirt to see if you’ll swing. What can you do to fight back? First off, what are you entitled to? An injured person can claim damages for medical expenses owed or paid by health insurance, wage loss (even if you used sick time), and pain and suffering and emotional distress. The state minimum insurance limit is $15,000 per person. If you had to take an ambulance to the ER, had some diagnostic testing and missed some work, your claim could be worth $15,000 right then and there. If you demand the policy limit and they refuse to pay it, the carrier can sometimes be forced to pay a higher judgment that you obtain in court– this is called “opening the policy.” If your case is small, you can negotiate with the carrier and if they won’t pay, tell them you’ll file in small claims court. Most carriers will offer their best money before the small claims hearing occurs. If you have a larger case involving broken bones or surgery, you will want to retain an experienced personal injury attorney to push for the best settlement number. Statistics show that people do so much better with a lawyer that it more than offsets the attorney fees.

Chuck Geerhart Injury Law Blog