Underinsured Motorist (UIM) Claims
Posted by: Stephen Leshner
June 27, 2010

I previously posted about uninsured motorist (UM) claims. Those are claims against your own insurance coverage when the person who caused the collision has no insurance coverage. Underinsured motorist (UIM) claims are claims against your own insurance coverage when the person who caused the collision has insurance, but not enough coverage to compensate you for your injuries.

You don't have to be in your insured car to be covered. In fact, you don't have to be in a car at all. In order to be eligible for UIM coverage, you have to be struck by a motor vehicle that has insufficient insurance coverage. You can be in your car, or waking down the street, or at home in your bed when the underinsured car strikes you. Moreover, you don't need to have auto insurance at all to be covered. You do need to be a resident relative of someone who has UIM coverage.

For example, I just settled a case for a client who was injured when his car collided with another car. The other driver was at fault and had $25,000.00 in insurance coverage, which his company paid in full. My client had no insurance coverage on his vehicle. However, he was living with his uncle at the time of the collision. His uncle had $100,000.00 in UIM coverage. Even though my client was not listed as an insured on his uncle's coverage, my client was a "resident relative" of his uncle's household at the time of the collision, under the terms of his uncle's insurance policy, so there was coverage. His uncle's company paid their $100,000.00 policy limits to my client, so my client received a total of $125,000.00 for his injuries.

If you are injured in a motor vehicle collision, a knowledgeable, experienced lawyer can often secure insurance coverage even when there doesn't seem to be any available.

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Uninsured Motorist (UM) Claims
Posted by: euser
December 30, 2009

What do you do if you are injured in a car crash, and the other party has no insurance? You can either try to collect from them personally, or you can make an uninsured motorist (UM) claim against your own auto insurance policy. Since I've heard that some 40% of Arizona motorists are uninsured, this coverage is essential. It's relatively cheap and critical if you are injured as a result of the negligence of an uninsured motorist. Since you didn't cause the collision, your rates should not be affected by making such a claim. Your UM coverage will cover all damages caused by the uninsured motorist (medical bills, lost wages, and pain and suffering), but will usually not cover punitive damages, which might have applied if the uninsured motorist was guilty of driving under the influence.

While you are making the claim against your own insurance, you should not assume your own company will give you the benefit of any doubt in evaluating your claim. Typically, the UM carrier is as difficult to deal with in adjusting claims as if you were dealing with the carrier of the responsible party. If you are unable to settle your claim with your UM carrier, you have to look at the policy to determine how to resolve the claim. Historically, UM carriers provided for binding arbitration within the policy to resolve claims. Either one or three arbitrators (usually practicing personal injury lawyers) acted as judge and jury to resolve the claim. However, carriers are increasingly adding direct suit endorsements to their UM policies, which require their policy holders to sue them in Court to resolve the claim. What follows is a real case which I recently resolved, which demonstrates the process of a UM claim.

My client, Fred (not his real name) was seriously injured in a motorcycle collision. He had five surgeries, and his medical bills were over $300,000.00. He had complications with one of the surgeries when a surgical plate broke. He originally came to see me because he was considering a product liability claim against the manufacturer of the plate. However, when I told him we would have to sue not only the manufacturer of the plate, but his surgeon, too, he refused. He really liked his surgeon, and did not want to sue him. (Based on my experience, the manufacturer would claim that the surgeon did not install the plate correctly, which caused it to fracture. In order to counter that defense, the surgeon would need to be a party to the case). Further, since Fred technically rear ended a car in the collision; he did not think he had a case against the driver of the car.

Since Fred was so seriously injured, I wanted to help him. In reviewing his case, I learned that the driver of the car had no insurance, and Fred had $100,000.00 in UM coverage. It wasn't enough to fully compensate him, but it was significant enough to help him financially. I also learned from interviewing the witnesses that Fred was riding behind the car at a safe distance and speed, but the car stopped unexpectedly during a right hand turn, and while attempting the avoid the collision, Fred clipped the left rear of the vehicle. With this evidence, I felt that while the driver of the car wasn't 100% at fault, she did have some fault.

In Arizona, cases are evaluated on the basis of comparative negligence. What this means is that each party responsible for a collision only pays his or her own share. For example, I evaluated Fred's claim as being worth $1,000,000.00. If the driver of the car was 10% at fault, and Fred was 90% at fault, he would still be entitled to 10% of his damages, or in this case, $100,000.00, which was the limit of his UM coverage.

I presented a demand to Fred's UM carrier, demanding the $100,000.00 limit. They refused to make an offer, claiming that Fred was 100% at fault for this collision. Pursuant to the terms of the UM policy, I filed suit against the UM carrier. After filing suit, I reached an agreement with the UM carrier to have the case be decided by binding arbitration, and we agreed on a single arbitrator, and set a hearing date. The arbitrator did not know the amount of insurance coverage involved. At the hearing, each side presented witnesses and evidence.

After the hearing, the arbitrator made his decision: he found Fred's total damages to be $950,000.00, and found Fred to be 60% at fault for the collision, and the uninsured motorist to be 40% at fault, entitling Fred to 40% of the $950,000.00, or $380,000.00. If Fred had purchased that much UM coverage, he would have received that amount. However, he only purchased $100,000.00 in coverage, and the carrier paid that amount. Because the carrier initially refused to pay anything, and for other elements of the carrier's conduct in this case, Fred has the option of filing a bad faith lawsuit against his insurance company for the damages they caused him as result of their handling of this case, but that is another topic for another post.

When your considering buying auto insurance, or reviewing your policy upon renewal, make sure you have enough UM coverage.

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"Tort Reform": Debunking the Myths
Posted by: euser
September 02, 2009

Debunking the Myths

Drug, oil, and insurance companies have spent millions of dollars to generate myths about how lawsuits are out of control and responsible for all of America's ills. The facts tell a much different story.

Latest Research Report

Read AAJ's latest report: Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse

More Research »

Myth: The number of lawsuits filed is skyrocketing.

Not true. According to the Justice Department under President George W. Bush, the number of federal tort (personal injury) cases resolved in U.S. District Courts fell by 79 percent between 1985 and 2003. In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Courts. By 2003, that number had dropped to less than 800.¹

Additionally, the most recent statistics from the Administration's Bureau of Justice Statistics show the number of tort trials at the state level has decreased. These statistics were compiled as part of the Bureau's survey of state civil justice systems in the nation's largest 75 counties. Among these counties, the number of tort trials decreased 31.8 percent between 1992 and 2001. ²

Myth: Health care costs are rising and doctors are unable to practice due to litigation.

Health care costs are rising; however, medical malpractice litigation has nothing to do with it. According to the Congressional Budget Office, medical malpractice amounted to less than 2 percent of overall health care spending.³ The Government Accountability Office also found that malpractice cases have not widely affected access to health care. ⁴

According to the American Medical Association, the overall number of physicians is up more than 40 percent since 1990⁵, while over the same time, the U.S. population increased by only 18 percent .⁶ The number of emergency physicians, neurosurgeons, and OB/GYNs has also increased significantly over the same time period.

Myth: Legal reform is needed because lawsuits hurt small businesses.

Wrong. Multiple surveys have shown that lawsuits are not a concern for small business owners. A survey from the National Association of Manufacturers suggests that "lawsuit abuse" ranks at the bottom of concerns for manufacturers.⁷ A 2008 survey from National Federation of Independent Business had similar results, with "costs and frequency of lawsuits / threatened suits" ranking 65th on a list of small business owners' worries. ⁸

In reality, only big corporations and their front groups want to destroy the legal system so they can't be held accountable for negligence and misconduct. Drug, oil, and insurance companies have tried to hide behind small business owners to accomplish this; however, these surveys reveal their true intentions.

Myth: Trial attorneys are trying to drive corporations out of business.

Absolutely not. Corporations, large and small, are all entitled to have profitable businesses. Most do so without being negligent or engaging in misconduct.

A strong civil justice system allows deserving individuals to get justice and hold wrongdoers accountable. Civil justice attorneys work to make sure all people have a fair chance through the legal system - even when it means taking on the most powerful corporations.

Myth: Lawsuits are out of control. Someone even sued because they spilled hot coffee on their lap!

Those looking to destroy the civil justice have continually mocked Stella Liebeck and the McDonald's coffee case. Unfortunately, the actual facts of this case make it no laughing matter.

Ms. Liebeck's injuries include third degree burns-the most severe-to her groin, inner thighs, and buttocks. She was hospitalized for eight days, during which time she underwent skin grafting and debridement treatments (the surgical removal of tissue).

Ms. Liebeck sought to settle her claim with McDonald's for $20,000, but they refused. McDonald's eventually produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1993, some involving third degree burns similar to Ms. Liebeck. This history documented McDonald's knowledge about the extent and nature of this hazard. McDonald's own quality assurance manager testified that a burn hazard exists with any food served above 140 degrees; their coffee was kept warm at 185 degrees.

A jury awarded Ms. Liebeck $200,000 in compensatory damages, but reduced it to $160,000 because they found her 20 percent at fault for the spill. The jury also awarded her $2.7 million in punitive damages, equal to two days of McDonald's coffee sales. This was eventually reduced to $480,000, even though the judge called McDonald's conduct reckless, callous, and willful. Jurors expressed similar sentiments in interviews after the trial. Ms. Liebeck and McDonald's eventually entered a post-verdict settlement.

Myth: Trial attorneys are charging outrageous hourly fees and leave victims with nothing if they win.

Civil justice attorneys do not charge by the hour like most other attorneys. Instead, their clients pay on what is called a "contingency fee basis."

For over 200 years the contingency fee system has provided Americans who must go to court with a degree of access to justice that is unheard of in most other countries. Our system allows people who cannot afford to pay legal fees to obtain representation on a contingency fee basis. In personal injury and death cases, and in certain other types of litigation, the fee is based on a percentage of any money damages that are recovered.

Myth: My insurance rates are skyrocketing because of lawsuits.

Your insurance premiums may be going up, but it has nothing to do with lawsuits. Look no further than the insurance industry's annual profit reporting. In 2007, insurance companies reported a near-record profit of $61.9 billion. In comparison, the insurance industry's 2004 profit was $38.7 billion, which broke all previous records. Their profits continue to rise, and unfortunately, your premiums are following suit.

The insurance industry has also made the argument that awards and damages should be limited; however, have later admitted that caps will not lower premiums. For example, American Insurance Association spokesman Dennis Kelly told the Chicago Tribune in 2005 that, "We have not promised price reductions with tort reform."

Myth: Lawsuits cost taxpayers X hundreds of dollars each year.

Several so-called "independent" think tanks or organizations have devised the notion that American families pay a yearly "tort tax," or that the cost of litigation is passed on to taxpayers. These organizations, funded by oil, drug, tobacco, and insurance companies, produce studies that are a prime example of junk science. There is no methodology or academic basis for their results. Trying to pass off these organizations and their studies as legitimate is yet another scheme by corporations to avoid accountability in the courtroom and stack the deck against every day Americans.

Towers Perrin's "tort cost" study has also been widely rejected. Read more »

Myth: Schools are cancelling recess because they are afraid of litigation.

Wrong. School districts across the country are almost universal in blaming the elimination of recess on the need to meet requirements for teaching and testing hours.⁹

Myth: People aren't volunteering to help with Little League, Boy / Girl Scouts, etc., because they are afraid of lawsuits.

Wrong again. Similar to the previous myth, these lies are peddled by groups interested in destroying the civil justice system.

The Volunteer Protection Act of 1997 was passedto provide immunity for volunteers of nonprofits in the course of their charity work.

Sources:

1. "Federal Tort Trials and Verdicts, 2002-03", Bureau of Justice Statistics, 8/17/05

2. "Civil Trial Cases and Verdicts in Large Counties, 2001", Bureau of Justice Statistics, 4/04

3. "Congressional Budget Office, "Limiting Tort Liability for Medical Malpractice," 1/08/04

4. "Medical Malpractice: Implications of Rising Premiums on Access to Health Care," GAO, 9/29/03, www.gao.gov/cgi-bin/getrpt?GAO-03-836

5. "Physician Characteristics and Distribution in the U.S.," American Medical Association, 2006 edition, p.312

6. U.S. Census Bureau data: http://factfinder.census.gov/servlet/SAFFPopulation?_submenuId=population_0&_sse=on; http://factfinder.census.gov/servlet/DTTable?_bm=y&-geo_id=01000US&-ds_name=PEP_2005_EST&-mt_name=PEP_2005_EST_G2005_T001

7. "National Manufacturing Week 2006 Annual Survey Results," National Association of Manufacturers, http://www.nam.org/s_nam/doc1.asp?CID=6&DID=236617

8. "Small Business Problems and Priorities," National Federation of Independent Business, http://www.nfib.com/object/2008problemspriorities.html

9. http://www.washingtonpost.com/wp-dyn/content/article/2006/05/31/AR2006053101949_pf.html;
http://seattlepi.nwsource.com/local/191407_recess18.html; http://online.wsj.com/public/article/SB116044203663787613-OWTfLOXAilkTcNPcqP3tS75OWcE_20061108.html?mod=tff_main_tff_top

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Employer's Responsibility for the Acts of their Employees
Posted by: Stephen Leshner
March 19, 2009

A general rule of law is that an employer is responsible for the conduct of his or her employees, if the employee is acting within the course and scope of his or her employment. Lawyers use the Latin phrase, respondeat superior, to describe this principle. If someone is injured by an employee driving a company truck, the employer will be responsible for the damages sustained. However, employers sometimes defend these cases by claiming that their employee wasn't an employee at all, that instead, they were "independent contractors". So, many cases revolve around the issue of whether the responsible party was an "employee" or an "independent contractor" or something else. This means a seemingly simple case can become not simple at all, because if the responsible party is categorized as an independent contractor, there may be no insurance coverage for the injuries, even though the employer has insurance. The employer's insurance often only covers damages caused by their employees, not damages caused by independent contractors. The independent contractors sometimes do not have insurance coverage, leaving the injured party without recourse.

In an interesting case I recently settled, I represented a man who purchased an old car from a used car lot, and financed the car from the used car lot, at a rather high interest rate. After six months, he couldn't afford to pay the car loan anymore, so the used car lot and its finance company contracted with an auto repossession company to do a self-help repossession of the car. A self-help repossession is one where the agents find the car on the street, and without the owner's knowledge or consent, tow the car away.

In this case, the tow truck driver found the car in a parking lot at a bar. He hooked up the car to the tow truck. A waitress in the bar saw this happening, and told the owner of the car what was happening. The owner went outside, and hopped on the back of the tow truck, in between the back of his car (which was on the flat bed tow truck) and the cab of the tow truck. He told the tow truck driver he wanted to get some items out of his trunk before he towed the car away. Instead of letting him retrieve his items, the tow truck driver drove away, with the owner of the car on the back of the truck.

Witnesses saw the tow truck driver speeding up and slowing down, and yelling at the car owner to get off the truck. In the process of speeding up and slowing down, the towed car slammed into its owner, pinning him against the cab of the tow truck, breaking the femur in his leg, which is the largest bone in the body. A witness, who was working in his garage a few blocks away, heard the screams of pain of the car owner, and saw the tow truck driver yelling and pointing at the car owner, to get off the truck.

Finally, the tow truck driver stopped the tow truck. The police were called, who arrested the tow truck driver for aggravated assault. The car owner was taken to the hospital, where he underwent surgery, including the insertion of plates and screws, to repair his fractured femur. Curiously, the County Attorney's office decided not to prosecute the tow truck driver, who was released from jail, and disappeared. The auto repossession company claimed that the tow truck driver was not their employee and was instead, an independent contractor. They also claimed he was not authorized to drive the tow truck at the time, and somehow obtained the keys to the truck from their dispatcher under false pretenses. The owner of the auto repossession company called the manager of the used car lot and finance company, and told him to come and get their car, but let's not call this a repossession.

The injured car owner hired me to represent him. I sued the used car lot and the finance company, the auto repossession company and the tow truck driver. The used car lot and finance company claimed they were not responsible and blamed the auto repossession company and its driver. The auto repossession company claimed they were not responsible, and blamed the tow truck driver. The tow truck driver couldn't be located and had no insurance coverage. None of these entities would admit that they employed the tow truck driver or were responsible for his conduct.

However, the law in Arizona was favorable to my client. In certain situations, individuals and companies have a non-delegable duty. A non-delegable duty means that if you hire someone to do a certain act, you can't defend yourself by saying that you hired someone else to perform the act, so someone else is responsible, and you're not. Hiring someone to perform a self help auto repossession is one of the acts in which there is a non-delegable duty. If a breach of the peace occurs during a self help repossession, the used car lot and finance company can be held responsible.

After a flurry of legal motions on the issues of non-delegable duty and the responsibility of employers, employees and independent contractors, this case was settled for a confidential amount. Without this body of case law, my client's only recourse would have been against the uninsured and missing tow truck driver, and his injuries and substantial medical bills would have gone uncompensated and unreimbursed.

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Soft Tissue Injuries--Neck and Back Strain/Sprain
Posted by: euser
October 14, 2008

The most common injury sustained by someone who has been involved in a motor vehicle collision is a neck and back strain/sprain.  This injury is also called a soft tissue injury, or a connective tissue injury, or whiplash.  While these injuries can be painful, and cause true suffering, it can be difficult to obtain fair compensation for these injuries.  This is due to a decades long propaganda campaign waged by the insurance companies, costing millions of dollars, to convince people that these "whiplash" injuries are fake, and that the people who claim these injuries are fakers.  Unfortunately, this propaganda campaign has been largely successful, and has infected our jury system.

However, these cases can be successfully pursued and resolved.  There are facts common to successful soft tissue injury claims.  The more factors that are present in a case, the more likely the case will be successfully resolved.  These factors include:

• Clear, uncontested liability on the part of the negligent adverse party
• Substantial, clearly visible property damage to the injured parties' vehicle.  If the vehicle was not driveable from the scene of the collision, and had to be towed, that increases the likelihood of success of the claim
• The injured party reported being injured at the scene of the collision, and showed visible signs of injury
• The injured party was transported from the scene of the collision by ambulance
• The injured party was treated at a hospital emergency room immediately after the collision
• The emergency room physicians diagnosed a cervical (neck) and/or lumbar (back) strain/sprain
• Radiology or other examination confirmed objective findings, including muscle spasm, or a straightening of cervical or lumbar lordosis
• The emergency room physician prescribed medication, and instructed the injured party to follow up with his or her family physician
• The injured party followed the emergency room physician's instructions, and timely follwed up with his or her family physician
• The family physician notes that the injured party had not previously sustained a similar injury
• The family physician confirms the diagnosis of the emergency room physician, and prescribes a course of physical therapy to treat the injuries
• The injured party complies with the course of physical therapy, follows the restrictions placed on him or her by his medical providers, and goes to each and every appointment, without no shows, and without any gaps in treatment
• After a reasonable period of treatment, the injured party improves, and recovers from his or her injuries

If you or someone you know has been injured in any type of injury producing event, please call me for a free consultation, and allow me and my 32 years of experience advise you appropriately.

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Drunk Driving
Posted by: euser
October 14, 2008

If you've been injured in a motor vehicle collision, and the driver who caused the collision was under the influence of alcohol or drugs, you may be entitled to punitive damages.  While you are entitled to be compensated for your medical bills, lost wages, and pain and suffering, in a punitive damage case, you are also entitled to damages to punish the other driver for their wrongdoing.  In my experience, the public, including the juries who decide these cases, is fed up with the carnage on the highways caused by drunk driving, and are willing to award punitive damages under the appropriate circumstances.

For example, in a case I settled in 2008, I represented a woman who was rear-ended in a traffic collision.  She received soft tissue injuries to her neck and back, and was treated by her family doctor and a physical therapist.  Normally, this kind of case is settled for a modest amount.  However, a drunk driver caused the collision.  It was his second offense.  He fled the scene of the collision.  At the time of the collision, he was on the job, driving a company vehicle.  When I took his deposition, he testified that he was aware of the dangers of drinking and driving, and admitted that although he knew the dangers, he didn't care about the safety of the public.  On further questionning, he said that drinking beer was more important to him than the safety of the public.  Additionally, I took the deposition of an executive of his company.  He testified that his company didn't have any policies and procedures in effect to review the driving records of their employees, and didn't know his employee had a drunk driving record.  Because of this strong evidence, and the exposure to a punitive damage claim, this case settled for $400,000.00.

Luckily, my client was not more seriously injured.  Drinking and driving is a serious offense, and I do not represent people charged with drinking and driving.  I only represent people harmed by drunk drivers. If you've been injured in a motor vehicle collision, please call me.  I want to help you.

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It's Not an Accident
Posted by: euser
October 14, 2008

When you've been injured in a motor vehicle collision, you should not call it an "accident".  To most people, including jurors, an accident is something that is no one's fault.  If you've ever been rear-ended in a motor vehicle crash, it's no accident.  It was the fault of the person who hit you.  Instead of upholding their obligation to pay careful attention to traffic, they decided not to pay attention, and in so doing, they literally chose to crash into you.  Their insurance company wants you to call this an accident in order to minimize their responsiblity.

If you've been in any motor vehicle collision, and you've been injured, please call to me to discuss your rights, as well as the responsibility of the other driver and his or her insurance company.

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