Insurance Company WILL NOT PAY FOR MEDICAL EXPENSES. Here’s Why:

Written by Chris Dolan and Cristina Garcia

This week’s question comes from Patricia D. from the Mission District, who asks: I was riding my bicycle down 19th Street approaching Mission Street when a distracted driver traveling in the opposite direction struck me. He was apparently texting, driving, and traveling too fast on the roadway. When the vehicle struck me, I fell on my right side. As a result, I broke my right wrist and suffered a terrible road rash on my right elbow and shoulder area. The driver and I exchanged information before I was transported to the hospital. I recently received a call from the driver’s car insurance informing me that they would not pay for the damages to my bike or any of my medical expenses because I was at fault. Are they correct?

Dear Patricia,

Thank you for your question. Adult bicyclists have the same duties and responsibilities as motor vehicle drivers under the California Vehicle Code (“CVC”) 21200. CVC 21200 provides as follows:

“(a)(1) A person riding a bicycle or operating a pedicab upon a highway has all the rights and subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to provisions concerning driving under the influence of alcoholic beverages or drugs…”

Therefore, California laws treat bicyclists as motor vehicles that must abide by all traffic laws, which includes CVC section 21650, which provides that all cyclists must travel in the same direction as traffic. If bicyclists need to head in the opposite direction of traffic, they must walk with their bikes on the sidewalk.

For this reason, the driver’s vehicle insurance is likely denying your claim for property damage to your bicycle and personal injury claim. This denial does not completely bar you from recovering for your injuries if the other driver was also negligent. For example, suppose the police report or witnesses corroborate that the driver was speeding or texting while driving. In that case, counsel can argue that the driver’s negligent acts also caused the collision.

An issue that is likely to be raised is “Comparative Fault,” also called “Comparative Negligence.” Comparative Fault is the percentage of fault the court assigns to the injured party. California law states if the parties are found to share fault, the law requires that the amount of recovery that the injured party is entitled to be reduced by his or her percentage of fault. For example, if the injured person is found to be 30% at fault, their compensation award will be reduced by 30%. The driver’s insurance adjuster generally assigns this percentage if the case settles pre-litigation. However, if your case does not settle before trial, a jury will decide what percentage of fault will be assigned to each party.

If you were injured in a bicycle collision due to someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Due to the complexity of Comparative Fault, cases involving Comparative Fault, you must contact a qualified and skilled trial lawyer to review the situation and assist you with your claim to ensure that you receive full and just compensation for your injuries.

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What Are Some of My Rights As a Pedestrian?

Written by Christopher B. Dolan

This week’s question comes from Kevin in San Francisco: I live in the City and like many people, I do not own a car. Too expensive. I tend to walk often and enjoy it. Can you talk more about pedestrian law and pedestrian safety. Seems like every day I have to make sure I do not get sidelined by an electric bike or scooter. Even when I cross the street on a crosswalk, and I have the green light, cyclists and scooter riders just speed towards me. What are my rights? Don’t I have the right of way? 

Kevin, thank you for writing us. You are right to feel concerned about the risks to your safety as a pedestrian in San Francisco. Traveling as a pedestrian has become increasingly risky in the past decade. According the National Highway Traffic Safety Administration pedestrian fatalities have increased by 46% from 2010 to 2019. 

San Francisco is more densely populated than most major U.S. cities, and has some of the highest levels of traffic in the world. On top of that, millions of people visit San Francisco every year. In a city like San Francisco, the danger to pedestrians seems to be an accepted fact of life, as it is in other major cities, yet drivers still are liable for the injuries they cause to pedestrians when they hit someone due to speeding, inattention or distraction, impaired driving, or some other factor.

In such a dense city the risks are high when traveling as a pedestrian. A moving bicycle, scooter or motor vehicle can cause catastrophic injuries and death when they collide with a pedestrian. From 2016 to 2020 there were over 4,000 pedestrian crashes in the San Francisco Area, with nearly 80 pedestrians killed and thousands more injured. 

Pedestrian crashes are much more likely to occur in inner-city neighborhoods, the Tenderloin, SOMA, Mission, and Downtown specifically. However, on a per crossing basis, individual pedestrians are at a higher risk of being struck by vehicles in the less dense, more residential areas, meaning anywhere in San Francisco there are risks of being injured as a pedestrian. 

Pedestrian crashes are often caused by negligence on part of a driver. Most pedestrian injuries and deaths occur at nighttime and drivers impaired by drugs and alcohol raises the risk of pedestrians being hit by a driver’s negligence. It is important to always assume a driver does not see you, and stay out of the way of any moving bicycles, scooters or motor vehicles. 

Another major cause of pedestrian injuries is speeding vehicles. Speeding vehicles increase the likelihood of injury and increase the severity of the injury. The body is a fragile thing and you should always be cautious when approaching a roadway as a speeding vehicle can come out of no-where and cause devastation. 

With chaotic streets, bustling traffic, and a growing population of bicycle and scooter riders, what are a pedestrians rights and how do they protect pedestrians?

CVC § 21950 is the primary Right-of-Way law in California which states that,

“The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection.”

This law requires drivers to slow down and exercise due caution to keep pedestrians safe.

Unfortunately, the law is not completely straightforward, and CVC § 21950 also states,

“No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard.”

Drivers have further duties under CVC § 22350 which is commonly known as the “basic speed law.” This section prohibits those driving motor vehicles from driving faster than what is reasonable in a given circumstance. Under California’s basic speed law a driver must drive at a safe speed that does not endanger the safety of pedestrians.

Pedestrians do not always have the right of way, and in cities like San Francisco the law sets forth specific guidelines for when a pedestrian has the right of way or not. Even though pedestrians do not always have the right-of-way, if a pedestrian violates their duties it does not mean a motorist or bicyclist is free to hit them without liability for the injuries. 

Just because a pedestrian has the right-of-way does not protect them from being injured. Drivers failing to yield to pedestrians with the right-of-way was the primary cause for more than 42 percent of pedestrian collisions from 2016 to 2020. The law will not protect you from injury from those who do not follow it. The law will only provide you with an avenue to get compensated for your injuries. 

No amount of compensation following a catastrophic injury or death will truly pay for the damage of a pedestrian accident. As a pedestrian you should keep yourself as safe as possible when traveling around the streets. You should do the following as a pedestrian to reduce your risk of injury or death:

  • Wear visible clothes, especially at night time. If it is dark bring a flashlight and reflective clothing. 

  • Use crosswalks to cross streets, but do not put your trust in having a green light. ALWAYS check for oncoming motorists, bicyclists and other riders before you cross the street.

  • Do not walk in bike lanes. Always use the sidewalks and stay away from the roadway and bike lanes.

  • Stay aware of your surroundings when traveling. This means avoiding noise canceling ear buds and other distractions. 

Your safety should be your primary concern when traveling on foot. Even the sidewalks can pose risks to pedestrians. Watch out for holes, cracks and unkept walkways. 

If you are ever injured in San Francisco you should contact an experienced personal injury attorney who is knowledgeable about pedestrian laws and will fight to recover compensation from those responsible.

Be safe out there Kevin, thank you for voicing your concerns.

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I Was Involved in a Motorcycle Crash: What Can I Do?

Written By Chris Dolan

This week’s question comes from Rob in Foster City, who writes: I was in SoMa last weekend, and got in a motorcycle crash. Coming home late at night on my motorcycle, when a van in the left lane beside me swerved into my lane nearly hitting me. I jammed on my brakes and hit the back of the van. The driver said he had no insurance. The van he was driving belonged to the company he worked for. I broke my wrist, and my bike is a wreck. What can I do?

Thank you for your question, Rob. I started riding motorcycles as a teenager and, as a lawyer, regularly represent injured motorcyclists. One of the most common scenarios in the motorcycle crash cases I litigate is when a driver, without signaling, cuts off a motorcyclist or turns suddenly from the opposite lane in front of the motorcyclist. In both cases, the resulting collision can be fatal to the motorcyclist. I am relieved your injuries, while serious, were not life-threatening.

Here, the van driver violated California Vehicle Code Section 21658, which states,

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction,” it is the rule that “(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.”

I assume the damage to your motorcycle was more than $750. If that is the case, you have to report the accident to the DMV within 10 days of the accident. If you have not already filed the report, go the DMV website, search for Form SR-1, complete the form and send it in right away to the DMV.

You didn’t mention whether you have motorcycle insurance. Assuming you do, you need to ask your agent about whether your insurance policy contains uninsured and/or underinsured motorist coverage. What is uninsured and underinsured motorist coverage? Let’s start with what it isn’t.

When we think of insurance, we think of liability insurance. It protects your assets if you are at fault for an accident and you hurt someone or damage someone else’s property.

Liability insurance does not, however, protect you from damages you suffer in an accident that is someone else’s fault. That’s where uninsured and underinsured motorist coverage applies. Because many drivers in California violate the law and drive without insurance – or have a bare bones policy – California law requires insurance companies to offer consumers this coverage.

Even though the other driver did not have insurance, your insurance policy may be sufficient to cover both the financial loss you suffered – your wrecked bike and any days missed from work – as well compensate you for your broken wrist and medical expenses due to the collision.

What happens if you don’t have insurance?

I hope that is not case. But if it is, the company that owned the van may be legally responsible for your motorcycle crash injuries under the legal doctrine respondent superior, which is Latin for “let the master answer.” The doctrine is codified in California Civil Code Section 2338. It holds an employer responsible for the torts (wrongs) committed by its employees that fall within the “scope and course of their employment.”

You have to show that that the employee was negligent (acting in a manner that was unreasonable or illegal), and that the employee was also involved in the employer’s business enterprise at the time of the collision.

Here, the employee’s negligence is clear: He violated the vehicle code. Was the van driver also involved in the employee’s business? If he was delivering an item for the company or returning the van to the company parking lot after he completed his work shift, the answer is yes.

Determining if an employer is legally responsible for an employee’s negligence requires a thorough investigation of the facts. I suggest you consider contacting an experienced motorcycle crash attorney to advise you further on your legal rights and remedies.

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School is in Session: Drivers Slow Down for Students

Written By Christopher Dolan

This week’s question comes from Becky M. in SoMa who asks: When I was dropping my daughter off at elementary school last week, I drove up the street next to the school. It’s a narrow road with one lane in each direction. I was waiting in line for curbside drop-off when a yellow school bus stopped in front of us and turned on its red flashing lights. I stopped behind the bus and waited, even though I could have passed the bus in the lane for oncoming traffic. All the other cars behind me started honking and passing the bus on the left side. I was in a rush to drop off my daughter, but I waited for the lights to stop flashing before I went ahead and dropped her off. I thought I was supposed to wait behind the bus, but no one else was waiting, did the law change?

Thank you for your question, Becky.

The law has not changed. You did the right thing by stopping for the bus and remaining stopped until the bus turned its flashing lights off. California Vehicle Code section 22454(a) requires:

“[t]he driver of any vehicle, upon meeting or overtaking, from either direction, any school bus equipped with signs as required in this code, that is stopped for the purpose of loading or unloading any schoolchildren and displays a flashing red light signal … visible from the front or rear, shall bring the vehicle to a stop immediately before passing the school bus and shall not proceed past the school bus until the flashing red light signal … cease[s] operation.”

Simply put, this means that when the bus stops and flashes its red lights, located at the top front and back of the bus, you must bring your car to a stop, even if you are traveling in the direction opposite the bus. You must stop with enough clearance to allow for children to safety cross the street in front of the bus. You also must stay stopped until the bus turns off its red flashing lights, even if you do not see any children crossing the street. While it might seem inconvenient to stop and stay stopped for such a long time, this is an important, life-saving rule. When the bus is stopped with its red lights flashing, it means that children are either getting on or off the bus and are likely to be crossing the street. Because the bus is large and the children are small, your view of the children crossing may be obstructed.

The consequences for breaking this law can be astronomical — your careless decision could take away a precious, young life. Even if you are lucky enough not to harm a child while passing a stopped bus with flashers activated, your selfish act can earn you a $1,000 fine and a 1-year license suspension.

With school back in session for Fall, it is a good time to remind ourselves to slow down, be patient, and drive safely. Here are a few good rules of thumb to help keep school children safe:

  • School Zone Speed Limits: Drivers should always observe reduced school speed limits, typically 25 mph or even as low as 15 mph. Watch out for school crossing guards and follow their instructions.
  • Watch for Pedestrians and Bicycles: Drivers should be extra vigilant in keeping an eye out for children walking, biking, or scootering to school. Young children riding bikes or scooters can be unsteady, unpredictable, and are often inexperienced.
  • No Distractions: Keep your eyes on the road rather than on your phone or any other device. Taking your eyes off the road for just two seconds means that you may not see a child crossing in front of your car.
  • Talk to your Child: Teach your child to be safety-conscious. Remind your child to keep a proper lookout for cars in the roadway, be alert while crossing the street, and make sure that drivers see you/acknowledge your crossing. Also, remind your child to be aware of cars entering driveways or backing up.

If you were injured in an accident caused by a careless driver, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages include things like pain and suffering, physical impairment and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

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Do I Need a Lawyer Near Me if I was Involved in a Car Accident Out of State?

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from D. Conger from San Bruno who asks: While traveling in Washington, I was involved in a motor vehicle collision that resulted in injuries. The funny thing is that I found out the person who struck my vehicle was from San Jose.  I had initial treatment in Washington and more once I returned home. In addition, I have missed a substantial amount of time from work. I would like to seek compensation for this collision but don’t have the energy to try and find an attorney up there. Do I have to have an attorney from the state of Washington represent me?  

Dear D.,

I am sorry to read about your ordeal and wish you a speedy recovery. With the summer months upon us, research shows that summer travel is returning to pre-pandemic levels. The most recent data on summer travel suggests that it will be busy this year, as a recent survey from The Vacationer found that nearly 81 percent of Americans were planning to travel. According to Janeen Christoff of Travel Pulse, road trips remain one of the most popular forms of travel in a post-pandemic world. The nearly 80 percent of travelers who said they were going to take a road trip make up approximately 206 million Americans. Almost 20 percent will travel more than 500 miles from home by car. Also, nearly 7 percent say they will take road trips more than 1,000 miles from home.

With all those people on the road, collisions are bound to occur across state lines.

The simple answer to your question about whether you need local counsel, is that it depends. In most cases, while you live out of state, you may need to hire an attorney licensed in the state where the collision occurs to represent you. However, that is not always the case.  

The correct venue (the county or district where a case must be heard) is one of two places. It is where the injury-causing event occurred, in this case, the motor vehicle collision, or where the defendant resides.  If one were to elect where the defendant resides for your case, that would be Santa Clara County, here in California. In that case, you would not need to find an attorney up in the state of Washington. However, the important thing to remember is that in most cases, the laws of where the collision occurred would still apply; in this case, that would be the state of Washington. Some attorneys are comfortable dealing with the laws of other states, and some are not. 

However, let’s assume that the defendant was a resident of the state of Washington. Again, local counsel would be required, but you could still hire someone from California. In that case, the attorney, if they agreed, could seek to get “pro hoc vice” (Latin for “on this occasion”) into the State of Washington. If the court grants the motion, the California attorney, with the supervision of the local attorney, would be granted a temporary license to practice in the state of Washington, but only on your case. In most instances, the California attorney you select will already know someone in the other state, which is why they agreed to accept the case. You would not need to try and find two attorneys. 

With the advancement of technology and courts allowing for remote appearances, it is now as easy as ever for attorneys to represent clients in different states. For example, all attorneys at our firm are licensed in California. However, some are licensed in Oregon, Washington, Georgia, Arizona, Texas, and Massachusetts. We have handled all aspects of litigation in these states, including trials in some. 

Finally, an attorney in California may hold licenses in other states, allowing them to practice in multiple jurisdictions.  Essentially, this means that even though the attorney of your choice resides in one state, if they hold a license in another, they can freely practice there, as if they were local. 

Remember, no matter who you choose to represent you, be sure to document everything, lost earnings, medical treatment, and symptoms, and provide them to your attorney. As a team you will work together to get the best result.   

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Commercial Trucks on California Highways: Are Truck Drivers Specially Trained?

Written By Christopher B. Dolan

This week’s question comes from Steve, who asks: I’m originally from Southern California and now live in the Bay Area. I often visit family in Los Angeles and drive interstate 5 depending on traffic conditions, this drive can take me 7-8 hours. During my years of going and visiting my parents, I have seen several commercial truck accidents and have become concerned to the point where I try to stay far back or far ahead of any commercial truck. Some trucks can move rapidly into lanes, and I have seen some trucks swerve back and forth, almost causing a car crash. Are truck drivers specially trained? Is there a California hotline I can call to report bad truck drivers? What should I do if I am involved in a truck accident? Should I get a truck accident lawyer?

Hello Steve, thank you for your questions. You are right to feel concerned about driving around commercial trucks, and I encourage you to continue practicing the safe driving habits you describe. It is reasonable to feel the need to keep your distance from commercial trucks. In California, more than 3,000 truck accidents result in injuries every year, and approximately 300 Californians die annually in collisions with large trucks. The sheer weight and size of commercial trucks make them formidable figures on highways and the drivers in control of them should be held to a high standard to maintain safety on our roadways. 

So, what are these safety standards?

The California Department of Motor Vehicles (DMV) and the US Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) regulate commercial trucks in California. FMCSA was established in 2000 with the primary mission of preventing commercial motor vehicle-related fatalities and injuries. The FMCA holds commercial drivers to a higher standard than ordinary drivers because of the risk of injury and death that comes with operating a large truck.

FMCSA requires any commercial truck driver to obtain a Commercial Drivers’ License (CDL) before they can operate commercial trucks on the road. To apply, CDL applicants must pass medical testing, vision testing, have their driving record checked, and complete 15 hours of behind the wheel training. To get a CDL, applicants must pass skills and knowledge tests geared to these higher standards. California DMV imposes additional requirements for applicants of a CDL in California.

How are truck drivers held accountable for failing to adhere to the higher safety standard?

It is vital for professionals and commercial truck drivers to be held accountable. Accountability occurs through the FMCSA and local authorities. Drivers with a CDL must adhere to the standards set forth by these regulators because failing to stick to these standards raises the risk of serious injury and death.

If you witness unsafe driving by a commercial vehicle, you can submit a complaint to the FMCSA Safety Violation Hotline (1-888-DOT-SAFT) (1-888-368-7238) from 5 am‒5 pm PST, Mon‒Fri. The FMCSA also has a portal for the public to report unsafe driving through the National Consumer Complaint Database. To file a complaint online, click here.

Or you can call the California Highway Patrol and file a report with them. Also, many commercial trucks will have a phone number or website on the back of their vehicle to file a complaint about their driving directly to their employer. 

What should you do if you are in a truck accident?

The first thing you should do, if possible, is getting to a safe location off the road and away from moving traffic to prevent further injury. You should call 911 as soon as possible. 

Make a report of what happened to the police. Collect the insurance information of the truck driver and other drivers involved.

Document everything at the scene of the accident. Take photos and video of the scene and any damages and injuries. Keep track of bills, costs, repairs, and medical costs. The more detailed your records are of costs, bills, repairs, etc., the better off you will be in obtaining compensation for those damages. 

Avoid discussing the accident with others, including insurance adjusters. Some insurance companies may reach out to you and ask you for a statement. You do not have to speak with the insurance company, and it is best that you leave that up to an experienced truck accident lawyer who is aware of pitfalls and can advocate for your rights.

After getting in an accident with a large truck, who’s to blame may seem straightforward. But, several different parties can be liable for a truck accident, including a negligent truck driver, a trucking company, or even a manufacturer who produced faulty parts. One of the most critical steps in obtaining compensation is to thoroughly investigate the causes of the incident to identify all responsible parties and uncover evidence of their wrongdoing.

Once insurance companies identify the at-fault parties, the work of obtaining compensation begins. Despite what insurance companies may portray, truck accident victims’ damages can go far beyond just their medical bills. Compensation is determined from economic and non-economic damages depending on the circumstances of the injuries and how it impacts the victim(s). Trucking and insurance companies have enough money to compensate you for your injuries, but they also have a big budget to spend on legal representation so they will not have to.  

When someone is seriously injured, or a loved one is killed in a truck crash it should not have to be an uphill battle to get the support needed to recover. Unfortunately, these large insurance and trucking companies have made the path to recovery a challenge. If you are ever in a truck accident, you should find a lawyer who knows how to negotiate with these companies and navigate you through the legal process to put you in the best position possible to have a healthy recovery. 

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What Should I Do After Witnessing a Car Crash?

Written By Megan Irish and Christopher B. Dolan

This week’s question comes from Kevin who asks: I recently witnessed a car crash where a truck ran a red light and hit a woman in a small SUV. The truck completely ran the red and hit the woman. She had the green light, and I saw that the pedestrians walking her way had 8 seconds on their count down. I stayed at the scene and gave the injured woman my contact information, but I couldn’t stay long because I had my little boy with me and did not want to stand on the street for long. I also told her I saw that the truck ran the red and hit her, but I wondered what else I could have done to help. What do you think is helpful to do when you see a car crash?

Dear Kevin,

Thanks for staying and telling the injured person what you saw. In terms of what you can do as a witness, there are many things. First, make sure you are safe to stop at the scene of a collision. If it is not safe, you can call 911 and report the crash and provide a statement about what you saw. You can describe where you were and what you observed. Sometimes the investigating officer will call you back and conduct complete interview about the collision. They will refer to you as a witness in the traffic collision report and summarize your statement to them in the report. Be honest and as straightforward as you can be. Provide any specific details you can. However, if you can stay at a scene and speak to the people involved, that is great too.

When you observe a collision, here are a few things to look for:

Look at where pedestrians are walking, and cyclists are riding. Can you see the traffic signal light, and if so, what color is it for whose direction of travel? Are there protected turn lights for left-hand turning vehicles, and if so, what color are they? Can you see the count down for pedestrians crossing the street? if so, on what number is it? Was the driver avoiding any hazards? If so, what is it, where did it come from, and where did it go? Was the hazard also involved in the collision? Where are the involved vehicles stopped? Can you note the license plates? Are the drivers involved staying at the scene or trying to leave? Do you have a camera on you? Can you safely take some photos? Or a video?  If you can take pictures, try to capture the locations where the vehicles came to rest. Take photos of any debris that came off the cars, and any skid marks associated with the collision. Take pictures of the license plates of the vehicles involved in the crash, and the people who were driving the cars. If you have time and can capture the color of the light before it changes, that can be helpful too. Watch the traffic lights cycle through. Are there any problems with them, such as the same color showing for both directions at once? If that happens, then definitely try to get a video and bring it to the attention of the people involved in the collision, as they will need to try and get a video to provide to their insurance. Although this is a long list of things to remember to do, this information can be helpful when explaining who had the green and who had the red lights. If a person is badly injured, they may leave the scene in an ambulance, and they will not be able to relate what happened to the police. Any statements you provide can be helpful to the investigating officers and or insurance companies to understand how the collision occurred and who was at fault.

Liability

Determining who was at fault is crucial to establishing liability for a matter. Liability is the legal term for who is responsible for the collision and whose insurance company need to cover the costs of the repairs to the vehicles and the injury to the people. Liability is frequently ‘disputed,’ meaning insurance companies cannot determine who caused the collision. Therefore, they wait on making any payments until they can establish more evidence to prove one vehicle was responsible for the other. For instance, in the collision you observed, where one car ran the red light, it will be necessary for the person who had the green light to prove they had the green light to the other driver’s insurance. The parties typically dispute red light-green light cases, and an independent witness statement, such as your own, can be very helpful. The insurance companies will call you after a collision, and your statements will help the at-fault driver’s insurance take responsibility for the damages to the injured party. 

It is significant that you stayed and relayed what you observed. Your statement was likely beneficial to the drivers involved and is appreciated by those involved in a collision. 

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What Happens After I Hire an Attorney For My Car Accident?

Written By Christopher Dolan and Allison Stone

This week’s question comes from Anonymous who asks:

What should I expect once I have hired an attorney after an accident? 

Dear Anonymous, 

Thank you for your question. After you are involved in an accident and hiring an attorney, there are still a lot of unknowns and questions. What happens next?  Here is an overview of what to generally expect during this time:

Sign Initial Documents:

The first step in hiring an attorney is signing a retainer agreement along with other paperwork so your attorneys can start working on your case. This paperwork often includes signing various authorizations that allow your attorneys to get the necessary records to prove your case.

Provide Documents and Information:

In addition to signing the retainer agreement and opening documents, you will need to provide your attorney with the information and documents you have. Documents include a copy of your ID, insurance cards (automobile and health insurance), photos, and other evidence relating to the incident. It is also essential to provide the facts about how and when the incident happened, what injuries and losses you suffered, if you have missed work, or if anyone witnessed the incident. You must also provide your attorney with a complete list of all the doctors and healthcare facilities that treated you. This documentation is necessary not just at the beginning of the case but also crucial to keep attorneys updated as you continue to seek medical treatment. Your attorney can then obtain all medical records and bills. 

Attempt to Negotiate a Pre-Litigation Settlement:

Attorneys will often send the insurance company a settlement demand once they obtain documents. This demand will set forth the basis of your case, explain your injuries and damages, and provide photos, medical records, and bills. The insurance company will review the demand, typically make a counteroffer, and a negotiation process will generally follow.   

Filing a Lawsuit: 

If your attorney cannot negotiate a pre-litigation settlement, they will file a complaint, starting the litigation process. Retaining an attorney as soon as you can after an accident is very important. There is a time limit when you can file a lawsuit called a statute of limitations. This statute of limitations varies depending on the type of case. If you miss the statute of limitations, you will not be able to file a lawsuit.  

Once a complaint is filed, your attorney will find and serve the complaint on the defendant, advising them they are being sued. At this point, the defendant will hire an attorney or notify his/her/their insurance company who will represent him/her/them. The insurance company will hire a lawyer if the defendant has not already hired one.

Discovery:

This is typically the longest phase of a case and can take months, a year, or years depending on the circumstances of the case.  During discovery, each side asks the other side for all the information and evidence they have to support their claim and arguments. Your attorney will likely contact you intermittently with specific questions about the accident, your injuries, status updates, etc. During discovery, both sides will also take depositions. As an injured party or a Plaintiff, you will have a deposition, which is a time for you to answer questions by the defense attorney.  Another part of discovery in a personal injury case is a physical examination where the defense can have you examined by their medical expert. Also, during this discovery phase, your attorneys will often have various hearings with the other side and the judge to provide updates and reports as to how the case is progressing.  

Experts:

At any time during the case, your attorneys may hire various experts. Experts are needed to prove different aspects of your case, and the attorneys will hire the necessary experts for your case. Every case is different. You may have to meet with their experts. Or, experts may be involved in part of your case that does not require your involvement.  

Mediation:

Mediation is a process wherein the parties meet with a neutral third person, a mediator, who will help parties reach a settlement.  It is not an adversarial process; typically, each party is in their room or space and never speaks to or sees the other party(s).  Working with an independent person who helps to settle your case is an essential step in virtually every case.  

Trial:

During a trial, both sides have a chance to go to court and present evidence and witnesses that supports their case to a jury. In the end, either a judge or jury come to a verdict. At any time, the matter can settle, which ends the trial. Most personal injury cases settle and do not proceed to trial.  

With all of this said, it is critical to be patient and trust your attorney who is there to guide you through the process and make recommendations along the way. The most important thing is to hire a trustworthy and hardworking attorney to handle your effectively and efficiently.  

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Distracted Drivers Increase the Changes of Deaths and Injuries in California and U.S. Roads

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from M. from Daly City who asks: I recently received a call from my son, saying he was involved in an “accident.” Luckily, he is fine. He went on to say that the other driver was looking down at their phone, not paying attention and rear-ended him. I always thought of “accidents” as being unavoidable; this seems like the driver could have avoided it. Was it really an accident?  

Dear M.,

I am glad to read that your son is fine, and that is the most important thing. But you are correct. Over the years, we as a society seem to have found a way to excuse peoples’ negligence by classifying them as an “accident.” Using a cell phone while driving creates the potential for deaths and injuries on California and U.S. roads. The underlying thought is that “they didn’t mean for it to happen,” so it was an “accident.”  As a society, we need to get away from alleviating someone’s fault by classifying their actions as a an “accident” and look more closely at the underlying conditions. 

Accident has two meanings:

  1. an unfortunate incident that happens unexpectedly and unintentionally, resulting in harm, and
  2. an event that happens by chance.

In the situation involving your son, people would say that the first definition would apply to the driver that caused the collision; but let’s think about that. The cause of the crash was an inattentive driver who was intentionally using their phone and not paying attention. Though they may not have intentionally struck your son’s vehicle, everything else leading up to that was intentional. Therefore, the outcome should not have been unexpected. Why would we consider this to be an accident?

Secondly, accidents are supposed to happen by chance or be random. But studies are finding this not to be the case. 

In a recent interview with Marin Cogan, Jessie Singer, author of the new book There Are No Accidents, talks about the term “accident” and explains “[t]here are a lot of problems with it. Accidents are supposed to be random, right? And unpredictable. If that were true, then accidental death would be randomly distributed across the country, but it’s not. When we look at the data, we see that Black and Indigenous people and people living in poverty die by accident most often.”

The Governors Highway Safety Association proved this statement to be true. They published an Analysis of Traffic Fatalities by Race and Ethnicity in June of 2021. In that analysis, several studies were reviewed and cited to, some of which were: 

  • Motor Vehicle Traffic-Related Pedestrian Deaths – U.S., 2001–2010 (Naumann and Beck, 2013), wherein the Centers for Disease Control and Prevention (CDC), which analyzed 2001–2010 data from the National Vital Statistics System (NVSS). 
  • Socioeconomic Differences in Road Traffic Injuries During Childhood and Youth: A Closer Look at Different Kinds of Road Users (Hasselberg, et al, 2001) a Swedish Study. 
  • Vision Zero Chicago: Action Plan 2017-2019 (City of Chicago, 2017) and  
  • 2015-2019 Fatality Analysis Reporting System (FARS data). 

They found that Blacks, Indigenous and People of Color are disproportionately represented in fatal traffic crashes. Key findings from the research indicated that: 

  • When measured against all causes of death, motor vehicle traffic crashes account for disproportionately large percentages of fatalities, particularly among Native American and Hispanic persons. 
  • Black children ages 4–15 had the highest fatalities involving pedestrians and other people not in vehicles as a percentage of all motor vehicle traffic fatalities. 
  • American Indian/Alaskan Native persons have the highest annualized, age-adjusted traffic-related pedestrian death rates of all races/ethnicities. 
  • Census tracts where low-income and minority populations are more concentrated have measurably higher levels of vehicle traffic and higher speed arterials. 
  • A Swedish study found the injury risk for pedestrians and bicyclists was 20% to 30% higher among the children of manual workers than those of intermediate and high-level salaried employees, indicating socioeconomic status can influence the risk of motor vehicle crash involvement. 

Beyond race, socioeconomic status can influence the risk of motor vehicle crash involvement. The City of Chicago’s 2017 Vision Zero Action Plan included a reference to public health data that show traffic crashes affect Chicago communities unequally. Chicagoans who live in areas of high economic hardship have an increased risk of being in a severe crash and die in traffic crashes more often and at a higher rate than other city residents.

The key findings from the analysis of 2015-2019 FARS data: 

  • Compared with all other racial groups, American Indian/Alaskan Native persons had a substantially higher per-capita rate of total traffic fatalities. 
  • Black persons had the second-highest rate of total traffic deaths. This rate was true for total traffic deaths, pedestrian traffic deaths and bicyclist traffic deaths.

When interpreting the disproportionate representation of race and ethnicity in motor vehicle crashes and traffic fatalities, we must recognize that ethnicity and race, to a certain degree, are intertwined with other factors that affect crash risk. Risks include as socioeconomic status and overall investments in crash prevention where people live. These investments include roadway infrastructure, traffic enforcement, community engagement and traffic safety education. None of which is random nor unexpected.

At the end of the day, as Jessie Singer has indicated, “[w]hen we say “it was an accident,” we’re saying it wasn’t my fault. It wasn’t their fault. In doing that, we’re almost always focusing on the wrong thing and setting up the same accident to happen again.” 

We as a society need to start focusing on right thing; we can start by not calling everything an accident.

 

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Are My Therapy Records Protected in a Lawsuit?

Written By Christopher Dolan and Emile Davis

This week’s question comes from an anonymous writer who asks: I was recently in a bad car accident. I was in the hospital and required surgery to put some screws and a plate in my shin. I am in therapy for some very private and personal issues arising from an abusive relationship. I don’t want to share that information with anyone, but, I have also been talking to my therapist about the difficulties in recovering from the accident and being so limited with my leg while I heal. It wasn’t my fault, but I am scared to bring a lawsuit.

Is there anything I can do to get compensated but not let the driver who hit me or the insurance companies know my personal business from my therapist even though I talked to her about the accident?

Dear Anonymous, 

You have raised an interesting dilemma that affects many people who file a lawsuit and are in litigation. What you describe is at the heart of many privacy laws in California- the conflict between a litigant’s privacy and the need for information to get to the truth of a matter. 

We need to start at the most basic level to understand how this conflict plays. First, every person has a privacy right to their medical records. The California constitution expressly provides that all people have an “inalienable” right to privacy. This clause has created a zone of privacy that protects against unwarranted compelled disclosure of certain private information, including medical records.

However, this privacy right is not absolute. As your question understands, certain medical privacy rights are waived by bringing a lawsuit. Clearly, in evaluating a leg injury like the one you have suffered, prior injuries to that leg would help inform a clear understanding of the damage this accident caused. Defendants sometimes litigate and argue that all privacy in medical records is waived by bringing a lawsuit. Courts have held the line well, limiting physical records to the body parts in question in the litigation or if the body parts are directly implicated.

Mental health records follow a similar analysis, but there is a more transparent and absolute way to protect therapy records from being disclosed. Part of the damages a Plaintiff in a civil lawsuit arising from an auto accident generally includes what is referred to as non-economic damages: pain and suffering, emotional distress, fear, and anxiety.

Since the non-economic damages are likely discussed in therapy records, as it is in your case where you have explained the difficulties of the recovery process with your therapist, they would be directly relevant to the litigation. However, the law has developed a mechanism to allow protections and allow the maintenance a litigant’s privacy.

The Plaintiff can make an election between what is known as a “garden variety” claim for emotional distress damages or what is called a “special claim”.

When making a “garden variety” claim, the Plaintiff indicates that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.”  If the emotional distress suffered is of the type expected from the physical injuries, a Plaintiff’s therapy records would not likely be at issue and could be kept from disclosure.

A special claim is the opposite. It is where the emotional injuries exceed what would be expected from the physical injuries. An example would be when someone had a severe emotional reaction and sought psychological treatment to deal with the emotional injures from the accident. 

With the bit of information, we have from your question, it seems that a garden variety claim would accomplish your goals of moving forward with a lawsuit while, at the same time, likely keeping your therapy records private. Please understand that there is no half-measure; if some of the records from a therapist are disclosed to prove how difficult your recovery has been, that will often open up the rest of the therapy records.

If you choose to move forward with a lawsuit, make sure to find an attorney who is knowledgeable about these things and can advise you regarding these important issues. 

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