Monthly Archives

May 2018

Settlement

By | Articles, Bike Accidents, Car Accidents, Casino Accidents, Construction Accidents, Dog Bites, Medical Malpractice, Personal Injury, Trucking Accident, Wrongful Death | No Comments

You’ve reached a settlement. The journey that began when someone’s careless actions hurt you,  has finally come to a close. Besides feeling relief, you’re probably wondering what happens next. What is required in a settlement by both the plaintiff and defendant. There’s several steps that occur between the time a case settles and having a check in your hands. Each process is contingent on what kind of settlement is reached. The different types of settlements are primarily based on if the person hurt is an adult, minor, or if it involved the wrongful death of a person.

“A Settlement is an official agreement intended to resolve a dispute or conflict.”

Whenever a case settles, the parties need to sign a release agreement. As part of the settlement, your attorney will send you a Release Agreement to sign. Your attorney will also send another document called a stipulation to dismiss. It’s imperative to put in a timetable for payment in the release. The Release Agreement is a document that specifies the terms between the parties. For example, in exchange for $250,000, you agree to release Mr. Jones from the car accident. Upon receipt of the settlement check, it is deposited in a trust account. Once the settlement funds become available, a check to you for your portion should be delivered.

When a claim involves injuries sustained by someone under the age of 18, the settlement requires court approval. A petition is submitted to the court specifying the terms of the settlement. The petition sets forth the amount agreed to, case expenses and legal fees. It also specifies why the agreement is in the best interests of the child. A Judge will then schedule a hearing where your petition will be presented to the court. This hearing is largely a formality but it is still important to take it seriously. Once the Judge affirms the petition, you will be requested to consent to a Release Arrangement as described above.

In a wrongful death lawsuit, there are usually claims for pain and suffering and wrongful death. Pain and suffering refers to the conscious pain and suffering of the decedent prior to death. Wrongful death refers to the monetary losses sustained by the beneficiaries of the decedent’s estate, such as loss of income, loss of maternal guidance, advice, and burial expenses. The portion of the settlement allocated to wrongful death is divided according to the loss sustained by each beneficiary.

What’s important to remember is that every case is complicated. A settlement is one of the last steps involved in litigation, but it’s definitely not the finish line.

Truth about Coffee

By | Articles, In the News, Personal Injury, Tort Reform | No Comments

You may have not heard of the term Tort reform before because it’s not very common, but it’s extremely important. Tort Reform is a war against consumers, it’s as simple as that. The best example of tort reform’s campaign against consumers is what happened in our country when a grandmother from New Mexico was severely burned by a cup of coffee. The coffee was not just “hot,” but dangerously hot. McDonald’s corporate policy was to serve the coffee at a temperature that caused serious burns. Ms. Liebeck was wearing sweatpants that kept the coffee against her skin. She suffered third-degree burns and required skin grafts. Liebeck’s case was also not far from an isolated event. 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. Moreover, the Shriner’s Burn Institute published warnings to the food industry that its members were causing serious burns by serving beverages above 130 degrees Fahrenheit.

Stella Liebeck, was 79 years old, sitting in the passenger seat of her grandson’s car with a cup of coffee. After the car stopped, she tried to hold the cup between her knees while removing the lid. However, the cup tipped over, pouring scalding coffee onto her. She received third-degree burns over 16 percent of her body, requiring hospitalization for eight days. She also received skin grafting, scarring, and disability for more than two years. The areas which had full thickness injury had to have skin grafts for coverage. Ms. Liebeck brought a suit against McDonalds and was apparently willing to settle for $20,000 but McDonalds made a strategic decision to fight the claim. This turned out to be a bad business decision for McDonalds but a good decision for the rest of the public.

McDonalds kept their coffee temperature between 180 and 190 degrees Fahrenheit. They used this temperature based on a consultant’s advice that this was the range needed for the best taste. McDonalds later admitted that they had not studied the dangers associated with these high temperatures. It is also important to note that other fast food restaurants sold their coffee at significantly lower temperatures. Most coffee served by people in their homes is in the 135-140 degree range.

The Plaintiff’s expert testified that liquids at 180 degrees would cause a full-thickness burn to human skin in two to seven seconds. Having the temperature of the liquid below 155 degrees causes the likelihood of a burn injury to fall exponentially. Essentially, if the coffee served to Ms. Liebeck was 155 degrees, she would have avoided significant injury when she spilled it.

The case is considered by some to be an example of frivolous litigationABC News called the case “the poster child of excessive lawsuits”.  McDonald’s asserts that the outcome of the case was a fluke but we know better. Mcdonald’s attributed the loss to poor strategy, but we know it was because McDonald’s simply didn’t care about its customers. Detractors also highlighted the fact that Liebeck spilled the coffee on herself rather than any wrongdoing on the company’s part. Liebeck’s opponents argued that the vast majority of judges who consider similar cases dismiss them and this should have been too.  The jury disagreed due to McDonald’s complete misunderstanding of Liebeck’s injuries. The jury ended up awarding $200,000 in compensatory damages and $2.7 million in punitive damages. The compensatory damages were reduced by 20 percent for Liebeck’s contribution. Even though the punitive damages award seemed high, it only amounted to about two days’ worth of coffee sales.

One of the main benefits emanating from the trial was revealed when a post-verdict investigation showed that that temperature of the coffee at the local Albuquerque McDonalds had been reduced to 158 degrees Fahrenheit, a level still dangerous but less likely to cause injury if spilled. Perhaps the system worked after all. A products liability case with a high monetary award resulted in a much safer product. The case was not so “frivolous” after all.

Waiving your Right to the Court System

By | Class Action, Personal Injury, Tort Reform | No Comments

Arbitration Agreements

We’ve all seen arbitration agreements and I bet all of us have agreed to arbitration instead of exercising our rights to the court system but the question is why? Why as a society are we willing to give up our right to the court system? Why are we willing to give up the right to have juries/our peers judge our grievances and why are corporations so insistent on these arbitration clauses?

The most recent example of corporations asserting an arbitration clause in a massive way was Pokemon Go. Ever since Pokemon Go’s introduction to the public, people have started wandering around getting hurt, exposing themselves to crime, and finding dead bodies.

The law has had to evolve as society changes, and a host of legal issues have arisen that courts are just beginning to hash out. Look no further than the Match.com murder lawsuit and the Google Maps pedestrian accident case. If a Pokemon Go user is injured, or attacked, or lulled into trespassing, could there be liability? I don’t know. Nobody does. We can speculate generally about the companies liability, but the actual answers have to wait for our judicial system to catch up.

Maybe you’re thinking, only an idiot would get hurt playing Pokemon Go or these frivolous lawsuits are destroying America.I firmly believe you’re wrong but we can discuss that later. Right now reading this, are you so sure that you want to waive your right to use the court system forever?

Maybe you are. That’s fine. But bear in mind you’re not just waiving the right to sue over injuries, you’re also waiving the right to participate in class actions brought by others. If a service you’re using has all of your personal information stolen by hackers, and there’s a class action, you’re out of luck. If an app systematically cheats you on in-app purchases, and there’s a class action, you’re out of luck. Your only remedy is arbitration. Companies use arbitration clauses because there’s a risk of them being sued and being held responsible for something. They are afraid of a jury rightfully compensating the injured.

The moral of the story, is that you don’t want to cut off options open to you before you have to, it’s best to opt out of arbitration clauses whenever possible. Your future self might not care but it’s a risk that simply has no upside for those being asked to take it.

 

Frequently Asked Questions Part 3

By | FAQ, Personal Injury | No Comments

Why am I not being compensated when I have full insurance coverage?

 

Many drivers believe they have full coverage, but are not insured under certain circumstances. There are several different types of insurance coverage, and failing to have a particular one may limit recovery.

 

In many cases, our clients often find that even though they believe they have “full coverage,” they do not have underinsured or uninsured coverage, which will cover you in the event of an accident where the other party cannot pay.

 

Contact your insurance company and discuss what coverage you have, when the coverage is applicable, and, if necessary, call us if you believe your insurance company is trying to avoid paying a valid claim.

 

If this is not the case, and you do have full insurance coverage, you may not be satisfactorily compensated because your insurance company wants to minimize payouts.

 

There are often disagreements about specific language in your insurance contract, how much a claim is worth, and whether any other parties are involved who may be responsible.

 

If other insurance or health insurance companies are involved, there may be disagreements over who is responsible for payment. These issues can cause serious delays in compensation.

How soon should I file a lawsuit?

 

You should speak with a personal injury attorney as soon as possible following your accident. The timeframe that you have to file a lawsuit is referred to as the statute of limitations.

 

If you fail to file a lawsuit before the statute of limitations expires, your case will be forever barred. However, with respect to claims against government entities or for medical malpractice, the statute of limitations is much shorter. Therefore, due to the time-sensitive nature of personal injury claims, you should immediately contact an attorney regarding your injury.

What does it mean to “file suit,” and why do we do it?

The act of filing legal papers at the courthouse is called filing suit. The client gives the authorization to file suit after all other options have been exhausted during pre-suit.

 

It is becoming more and more common for the insurance industry to step up and employ aggressive tactics in defense injury claims. This shift in insurance industry practice is why it is more important than ever to hire an attorney that is not afraid to go to trial and has the experience to win.

 

When a case is filed with the court, it does not necessarily mean you will be accompanying your lawyer to the courthouse but it becomes a more distinct possibility. Most cases are able to be resolved before trials begin, but some still reach the courtroom.

What is a deposition?

A deposition is where the attorney representing the other side can ask you questions to better understand your claims and injuries. Our attorneys can prepare you for a deposition by reviewing documents, such as police reports or medical records, which are related to your personal injury claim.

 

We will also prepare you for questions that may be asked during the deposition and we will be there during the questioning to assist you.

What Are Some Typical Questions That Might be Asked During Deposition?

  • What types of illnesses and injuries have you suffered from during the course of your life?
  • Have you previously been involved in any other lawsuits or legal claims (i.e. workers compensation)?
  • Were there any witnesses to the accident?
  • Did you file an insurance claim?
  • What is the nature of your injury?
  • What is your job history?
  • How has your injury affected your life?
  • When was your last treatment?

I was injured when I fell down a slippery step, can you help?

Whenever you are injured because of a dangerous condition on someone’s property, you may have a claim to recover compensation for those injuries.

 

Landowners have a duty to warn of dangerous conditions on their property and to make their property safe. As with any personal injury claim, the most important thing you can do is find an experienced attorney to help you preserve your evidence and protect your rights.

 

Often a delay in retaining an attorney can adversely affect your claim.

I was injured by taking a prescription drug, what should I do?

If you have taken a prescription drug (or over-the-counter medication) and believe the product has caused you to experience serious adverse side effects or serious injury, you may be entitled to compensation for the injury.

 

The first thing you should do is preserve all evidence. This means keep all medical records, receipts, prescriptions, packaging and anything else related to the drug, including whatever is left of the drug itself.

 

Do not give the remaining drug or packaging to your doctor, pharmacist, drug manufacturer or insurance company.

 

Can you help if my baby was born with a serious injury?

You may have a case. The most tragic injuries can happen during a birth. Sometimes the injury is caused by negligence or malpractice. When this is the case, the pain and suffering it causes can be eased by an award that compensates you for the full consequences of the injury and its long-term effects.

 

If a person dies before bringing a personal injury lawsuit what should we do?

This is referred to as a wrongful death. Spouses, domestic partners, parents, children, siblings, and grandparents can have a claim for wrongful death against a responsible party.

 

The possible types of damages that can be sought for wrongful death are: Financial support that the survivor(s) would have received, Value of household services that would have been provided by the decedent, Loss of companionship, affection, love, care, comfort, society, Loss of consortium for the surviving spouse, Funeral, and burial expenses.

 

These cases are complicated because the loss of a loved one can completely alter the life of the surviving family.  It is important to retain an experienced personal injury attorney who has handled wrongful death cases, and we have had great success and compensation for our clients.

The person that hit me does not have insurance, what can I do?

Insurance companies offer what is call uninsured/underinsured motorist coverage. What this coverage provides is protection for personal injuries that are caused by the negligence of a person with insufficient insurance to cover the costs.

 

In order to be protected by this type of insurance, you have to carry it on your own policy. In the very small number of situations where a negligent driver is uninsured, your uninsured/underinsured motorist policy holder will be liable for the damages you incur.

 

These claims often operate in exactly the same way as a normal personal injury case, with the difference being that you are recovering from your own insurance carrier.

 

It is very important to remember in these situations that the representatives from your carrier are not out for your best interests. Just like every insurance adjuster, they will be looking to minimize the insurance company’s loss.

 

Contacting an experienced personal injury attorney to represent you in these situations is the best way to ensure that you are protected.