Clients naturally ask how a party that clearly has acted wrongfully can not be responsible for paying 100% of the losses resulting from wrongful conduct. For example, how can the driver making the bad left turn not be responsible for the injuries he has caused, how can the bar that wrongfully sold liquor to a minor not be responsible for the resulting drunk driving accident, and how can the foster home not be responsible for its employee's sexual assault on a resident. The answer is the Discount Coupon defense in which the responsible party argues that, because others are at fault, its legal responsibility is limited to its share of the fault.
Because of laws passed in 1997 questionably called "Tort Reform," parties legal responsibility is limited only to their share of fault. What this means is that parties that have acted wrongfully look to blame others, including the accident victims for accidents. For example, the driver making the bad left turn will say that the accident victim driving the other vehicle should have seen the bad left turn and avoided the accident, the bar will say that the minor is more responsible for the accident, and the foster home will say that its employee is responsible for the assault.
How does this work? For cases that go to trial, the Court requires juries to allocate percentages of responsibility for accidents. If the jury finds that accident victim to be 50% responsible for the accident, the bad left driver only has to pay 50% of the resulting losses. If jury finds the minor is 90% responsible for driving drunk, the bar that sold the liquor only pays 10% of the resulting losses. Similarly, if the jury finds the foster home employee is 90% responsible for the sexual assault, the foster home only pays 10% of the resulting loss. In other words, the percentage is equivalent to a Discount Coupon for wrongful conduct.
I make no attempt to justify this system as being either fair or just, particularly with respect to situations like the bar or the foster home which the law requires to protect the innocent public from their wrongful actions. However, the Legislature in its infinite wisdom says this is how justice in Alaska works. Accident victims have to play their hand smartly. See www.Junelawyer.com
Wednesday, February 27, 2013
Wednesday, February 20, 2013
How Lawyers Help Clients Deal With Insurers
A Client came to me for help help on a problem.
Through his work, he had purchased a small accident policy that was supposed to pay $10,000 in medical expenses and a small disability benefit for 6 month. He also insured his long-haul Kenworth tractor with the same company. Following a one vehicle accident that the Client believed was caused by faulty repairs leaking carbon monoxide into the cab, the Insurer denied all benefits, saying that the accident must have been caused by some unknown illness or disease. The same Insurer was unresponsive on the Client's claim for the total loss of his tractor leaving a voice mail with no further explanation that all proceeds would be paid to the lender.
I can remember the meeting where the Client shared his frustrations in how he had purchased the insurance to protect himself in case of an accident and how it had turned out to be worthless. Convinced that his problems were due to misunderstandings and a failure of communication, my recommendation was that he file a Complaint with the Alaska Division of Insurance. The Client's even more frustrated response was to say that he had!
With the Client having given the Insurer every opportunity to perform as it had promised, a lawsuit was filed for insurance bad faith. After a year, the Insurer finally paid the promised benefits in full, plus interest, plus additional damages.
The playing field between an insurer and its insured is not level. You have to play your hand smartly. See www.Junelawyer.com
Through his work, he had purchased a small accident policy that was supposed to pay $10,000 in medical expenses and a small disability benefit for 6 month. He also insured his long-haul Kenworth tractor with the same company. Following a one vehicle accident that the Client believed was caused by faulty repairs leaking carbon monoxide into the cab, the Insurer denied all benefits, saying that the accident must have been caused by some unknown illness or disease. The same Insurer was unresponsive on the Client's claim for the total loss of his tractor leaving a voice mail with no further explanation that all proceeds would be paid to the lender.
I can remember the meeting where the Client shared his frustrations in how he had purchased the insurance to protect himself in case of an accident and how it had turned out to be worthless. Convinced that his problems were due to misunderstandings and a failure of communication, my recommendation was that he file a Complaint with the Alaska Division of Insurance. The Client's even more frustrated response was to say that he had!
With the Client having given the Insurer every opportunity to perform as it had promised, a lawsuit was filed for insurance bad faith. After a year, the Insurer finally paid the promised benefits in full, plus interest, plus additional damages.
The playing field between an insurer and its insured is not level. You have to play your hand smartly. See www.Junelawyer.com
Monday, January 28, 2013
What Happens When there are 6 Accident Victims and Only 1 Insurance Policy
What happens when there are 6 victims in the same car accident and there is only one insurance policy covering the responsible driver. Unfortunately, this happens.
In the past, attorneys representing each accident victim would race to be first to the insurer with the result being that, after the first 2 claims, there was no more insurance. The insurance had been exhausted and the remaining victims were left out in the cold.
In a case, Williams v. GEICO, http://www.courts.alaska.gov/ops/sp-6746.pdf, published last Friday, January 25, the Alaska Supreme Court established a new rule. Instead of settling the cases which raced to the courthouse first and then closing their file, insurers are now required to attempt to resolve all claims if possible. What does this mean for accident victims.
1. If you are in a serious accident, you still need to be represented by a lawyer sooner rather than later. Otherwise, your interest is not represented.
2. If insurance is limited, it is possible that the insurer (or a court) will prorate the insurance according to each individual's losses. In this case, you will need to present your losses for purposes of securing a maximum, albeit inadequate, recovery.
3. You will need to carefully examine all other sources of insurance. Most often this additional insurance will be found in Underinsured Motorist coverages applicable to the vehicle, in your own name, and in the name of other household members.
4. You will need to determine whether the limits of multiple insurance policies can be stacked.
You have to play your hand smartly and it gets complicated quickly. See www.Junelawyer.com
In the past, attorneys representing each accident victim would race to be first to the insurer with the result being that, after the first 2 claims, there was no more insurance. The insurance had been exhausted and the remaining victims were left out in the cold.
In a case, Williams v. GEICO, http://www.courts.alaska.gov/ops/sp-6746.pdf, published last Friday, January 25, the Alaska Supreme Court established a new rule. Instead of settling the cases which raced to the courthouse first and then closing their file, insurers are now required to attempt to resolve all claims if possible. What does this mean for accident victims.
1. If you are in a serious accident, you still need to be represented by a lawyer sooner rather than later. Otherwise, your interest is not represented.
2. If insurance is limited, it is possible that the insurer (or a court) will prorate the insurance according to each individual's losses. In this case, you will need to present your losses for purposes of securing a maximum, albeit inadequate, recovery.
3. You will need to carefully examine all other sources of insurance. Most often this additional insurance will be found in Underinsured Motorist coverages applicable to the vehicle, in your own name, and in the name of other household members.
4. You will need to determine whether the limits of multiple insurance policies can be stacked.
You have to play your hand smartly and it gets complicated quickly. See www.Junelawyer.com
Thursday, January 10, 2013
Voyages of Discovery or Fishing Expeditions: Your Lawyer's Fight for Evidence
A client does not receive compensation for his injuries just because there was an accident. Rather, the client must establish that the responsible party was negligent, i.e., made a mistake that should not have been made. This can only be done through evidence. Unfortunately, it is the responsible party, not the client, that, most often, controls this evidence. Once a lawsuit is filed, the lawyer must obtain this evidence through the process called "Discovery" in which responsible parties are supposedly required to "voluntarily disclose" relevant evidence as well as provide additional evidence formally requested by the accident victim's lawyer.
In fact, important evidence is not provided voluntarily and defense lawyers regularly call efforts to locate that evidence through documents and witness depositions as "fishing expeditions." Recent experience shows why this is not true and why accident victim lawyers must work hard to discover all important evidence..
In a case in which insurer misconduct led to the total loss of a client's business, basic policy manuals and documents guiding its employees were not provided. Because every business in the modern world has basic policy manuals, the insurer was asked to do so. In response, the defense lawyer represented that there were no such documents. (Actually, the defense lawyer first said that he did not understand what evidence was being requested and that basic policy manuals had no bearing on the case, calling the request a "fishing expedition" but when the Court finally ordered the policy manuals to be provided said there were none. One wonders why he did not say so in the first place but that is a different subject). Not surprisingly, when the first witness was asked the same question, the witness described a series of policy manuals. How can this happen?
I would like to believe that the defense lawyer was not dishonest but that economic incentives of the legal system lead to the defense lawyer being improperly ignorant. Because relevant evidence will lead to the responsible party paying damages, the responsible party has the economic incentive to be "Clintonesque, i.e., to feign ignorance by pretending either that one does not understand what evidence is being sought or by pretending that one does not have the knowledge to appreciate where the evidence is. After all, promotions and bonuses are given for bringing money in, not paying money out to accident victims. At some level, my guess is that defense lawyers also appreciate this but have the same economic incentive to be improperly ignorant, i.e., defense lawyers are paid by their clients to trust the client's word and "fight" to protect their clients from paying money to accident victims. While one may hope that the defense lawyer follows a higher standard and makes his own independent best efforts to locate relevant evidence that does not happen. When relevant evidence is uncovered, defense lawyers regularly say that, had they known about the evidence, it would have been disclosed. The important question is how could they not know about the evidence?
There is a reason that Columbus' expeditions to the New World were called "Voyages of Discovery" and not "Voyages of Confirmation" or "Fishing Expeditions." Columbus knew something was out there, just not the exact form of what he would find. The same is true for lawyers in discovery seeking evidence to help accident victims. It is because the lawyer cannot trust responsible parties to voluntarily provide evidence important to establishing legal responsibility that the lawyer must be thorough. See WWW. JUNELAWYER.COM
In fact, important evidence is not provided voluntarily and defense lawyers regularly call efforts to locate that evidence through documents and witness depositions as "fishing expeditions." Recent experience shows why this is not true and why accident victim lawyers must work hard to discover all important evidence..
In a case in which insurer misconduct led to the total loss of a client's business, basic policy manuals and documents guiding its employees were not provided. Because every business in the modern world has basic policy manuals, the insurer was asked to do so. In response, the defense lawyer represented that there were no such documents. (Actually, the defense lawyer first said that he did not understand what evidence was being requested and that basic policy manuals had no bearing on the case, calling the request a "fishing expedition" but when the Court finally ordered the policy manuals to be provided said there were none. One wonders why he did not say so in the first place but that is a different subject). Not surprisingly, when the first witness was asked the same question, the witness described a series of policy manuals. How can this happen?
I would like to believe that the defense lawyer was not dishonest but that economic incentives of the legal system lead to the defense lawyer being improperly ignorant. Because relevant evidence will lead to the responsible party paying damages, the responsible party has the economic incentive to be "Clintonesque, i.e., to feign ignorance by pretending either that one does not understand what evidence is being sought or by pretending that one does not have the knowledge to appreciate where the evidence is. After all, promotions and bonuses are given for bringing money in, not paying money out to accident victims. At some level, my guess is that defense lawyers also appreciate this but have the same economic incentive to be improperly ignorant, i.e., defense lawyers are paid by their clients to trust the client's word and "fight" to protect their clients from paying money to accident victims. While one may hope that the defense lawyer follows a higher standard and makes his own independent best efforts to locate relevant evidence that does not happen. When relevant evidence is uncovered, defense lawyers regularly say that, had they known about the evidence, it would have been disclosed. The important question is how could they not know about the evidence?
There is a reason that Columbus' expeditions to the New World were called "Voyages of Discovery" and not "Voyages of Confirmation" or "Fishing Expeditions." Columbus knew something was out there, just not the exact form of what he would find. The same is true for lawyers in discovery seeking evidence to help accident victims. It is because the lawyer cannot trust responsible parties to voluntarily provide evidence important to establishing legal responsibility that the lawyer must be thorough. See WWW. JUNELAWYER.COM
Monday, December 10, 2012
Be Wary of Free Seminars Following Multiple Victim Accidents
There was a tragic accident on the Seward Highway North of Girdwood in which 11 persons were injured. See "Crash Near Girdwood Closes Seward Highway," http://www.adn.com/2012/12/09/2718960/crash-near-girdwood-closes-seward.html.
It is not unusual following an accident for accident victims to receive phone calls or mailings promising "no charge" health care or a "no charge" seminar on their rights. Accident victims should be wary of these solicitations. A multiple victim accident such as this will trigger many legal issues. These include:
1. An investigation of the facts (Most often provided by the Alaska Trooper Report)
2. An assessment of the available liability insurance coverage. With multiple victims, this insurance may be inadequate to compensate each victim individually.
3. An assessment whether any of the victims may be accused of bearing partial responsibility. Most often, this is directed to the driver of the vehicle.
4. An assessment of injuries.
5. An assessment of losses.
6. An assessment of other insurance coverages such as Underinsured Motorist.
While these are the legal issues, the most important issue is recovery from injuries, something that is addressed by a physician, not a lawyer. I recommend that accident victims make medical treatment their highest priority, even higher priority than meeting with my office. When life deals you a low card in the form of an accident, you have to play your hand smartly. See www.Junelawyer.com.
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Monday, November 19, 2012
Workers Compensation Liens: The Client's Duty to Repay and the Employer's Future Credit
When a person suffers a work injury, he receives workers' compensation benefits. These include both payment of medical benefits as well as payments of Disability Benefits. Over time, there may be other benefits such as partial impairment benefits and vocational retraining benefits.
When the work injury is caused by someone other than the employer, the worker has a "third party claim."
Should the worker be successful in recovering his losses from this party, the worker has 3 duties to his employer and its workers' compensation insurer.
1. The worker must obtain the employer's consent to settlement. If the worker fails to do this, the employer is no longer responsible for paying workers' compensation benefits. This is true even if the "settlement" means the worker is giving up on his case.
2. The worker must pay back any worker's compensation benefits.
3. If the worker is able to recover more than he has received in workers's compensation benefits, the remaining amounts serve as a credit against future workers' compensation benefits.
While actual results depend on the facts of the specific case, a lawyer can negotiate a reduction of the worker's compensation "pay back." At a minimum, the workers' compensation insurer must pay the pro rata share of any legal fees incurred to recover the pay back amounts. Beyond this, a workers' compensation insurer may be willing to further reduce the pay back if the injured worker is willing to agree not to receive further workers' compensation benefits.
While one cannot predict the result in all cases, you have to play your hand smartly. See www.Junelawyer.com.
When the work injury is caused by someone other than the employer, the worker has a "third party claim."
Should the worker be successful in recovering his losses from this party, the worker has 3 duties to his employer and its workers' compensation insurer.
1. The worker must obtain the employer's consent to settlement. If the worker fails to do this, the employer is no longer responsible for paying workers' compensation benefits. This is true even if the "settlement" means the worker is giving up on his case.
2. The worker must pay back any worker's compensation benefits.
3. If the worker is able to recover more than he has received in workers's compensation benefits, the remaining amounts serve as a credit against future workers' compensation benefits.
While actual results depend on the facts of the specific case, a lawyer can negotiate a reduction of the worker's compensation "pay back." At a minimum, the workers' compensation insurer must pay the pro rata share of any legal fees incurred to recover the pay back amounts. Beyond this, a workers' compensation insurer may be willing to further reduce the pay back if the injured worker is willing to agree not to receive further workers' compensation benefits.
While one cannot predict the result in all cases, you have to play your hand smartly. See www.Junelawyer.com.
Tuesday, November 6, 2012
Motorcycle Fatality Due to Improper Conduct by State of Alaska DOT
Last week, I was able to successfully negotiate the settlement of a motorcycle fatality case against the State of Alaska, Department of Transportation ("DOT"). The basis of DOT responsibility was DOT workers' failure to clean up after asphalt repair with the result being that the motorcyclist lost control of his bike on small pieces of gravel entering a sharp curve.
Clients often ask about what makes a case strong and what makes a case weak. Here are what I considered to be some of the keys to success in this case.
1. Photographic confirmation of asphalt repair work (DOT workers could not remember what work they did except in the most general terms)
2. Neutral witness confirmation of hazardous road conditions specifically on the day and time of the accident.(DOT workers simply denied they would ever do shoddy work)
3. Photographic and record corroboration of neutral witness testimony. (In this case, one witness actually called DOT to complain and there was a record confirming the phone call).
4. The deceased having a clean traffic citation history so as to rebut accusations of reckless driving. (Rightly or wrongly, there is a stereotype of motorcylists).
5. The deceased driving a touring motorcycle while wearing helmet and leathers.
6. Advising the clients how the case could be lost despite strong facts. One consideration in this case is that a jury deciding a claim against a government entity appreciates that the verdict will be paid from tax dollars. Just as a popular television commercial says "Its our Oil!" the jury will be saying "Its our Money."
The motorcyclists family were deserving clients and I was happy that I could help them. In my opinion, they played their hand smartly.
Clients often ask about what makes a case strong and what makes a case weak. Here are what I considered to be some of the keys to success in this case.
1. Photographic confirmation of asphalt repair work (DOT workers could not remember what work they did except in the most general terms)
2. Neutral witness confirmation of hazardous road conditions specifically on the day and time of the accident.(DOT workers simply denied they would ever do shoddy work)
3. Photographic and record corroboration of neutral witness testimony. (In this case, one witness actually called DOT to complain and there was a record confirming the phone call).
4. The deceased having a clean traffic citation history so as to rebut accusations of reckless driving. (Rightly or wrongly, there is a stereotype of motorcylists).
5. The deceased driving a touring motorcycle while wearing helmet and leathers.
6. Advising the clients how the case could be lost despite strong facts. One consideration in this case is that a jury deciding a claim against a government entity appreciates that the verdict will be paid from tax dollars. Just as a popular television commercial says "Its our Oil!" the jury will be saying "Its our Money."
The motorcyclists family were deserving clients and I was happy that I could help them. In my opinion, they played their hand smartly.
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