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Motorcycle Accidents

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Motorcycle Accidents

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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The Difference Between Personal Injury and Workers’ Compensation

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Kisha J. from San Francisco who asks: Hi, my friend Angelino is a garage door repair man, and he recently got hurt while on a job. While he was up on the ladder working on the overhead door opener, the homeowner put several boxes behind his ladder. He fell on them when he came down the ladder and broke his ankle. He said he has been off work for a couple of weeks now and is making a worker’s compensation claim. I think the homeowner has some responsibility too, because he would not have fallen and broken his ankle if he hadn’t put boxes behind him.  Is the homeowner responsible too?

Dear Kisha,

Your friend’s claim may be both a workers compensation claim and a third-party personal injury claim. The two types of claims are compatible and can be made simultaneously. In the most basic sense, a worker’s compensation claim is more limited in the compensation available, but it is often very quickly awarded, and there is no consideration of the injured party’s fault. Third-party personal injury claims often yield more compensation, but usually take longer and will examine the injured party’s own role in the cause of the injury and harm.  

The worker’s compensation system is a “no fault” system. So long as the injury occurred while a person was at work, it does not matter who caused the injury. One does not need to prove that the employer or co-workers did anything wrong. Even if the injured party did something wrong, they are still usually covered. The workers compensation system has limited coverage though and is only available to cover medical costs and replace a person’s lost wages. Workers’ compensation claims do not cover general damages.  

In a third-party action, when someone is at fault for doing something wrong, the harmed person can seek to recover both special and general damages. In a third-party action the injured party must prove that a third party was negligent, and that the third party’s negligence caused the injury. For example, failing to stop at a red light causing a vehicle collision would likely qualify as negligence by another that caused harm to the injured party. In such a case, special damages are available and cover, in very general terms, things the injured person has receipts for, such as medical bill and lost wages. Moreover, in a third-party action one can also seek to recover general damages, which are typically referred to as pain and suffering. The law includes physical and mental pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress as elements of general damages. 

Generally speaking, third-party cases, are brought when someone other than the employer or coworker was negligent. The most common instances where an employee will bring a third-party action for injuries that occurred when they were working, are for defective products (action where a claim is made against the manufacturer of the product used to do a job), the injury was caused by a toxic or illegal substance, the employer did not carry worker’s compensation insurance, or the injury was caused by a third-party who was not a part of the company.

Workers Compensation and third-party personal injury claims can be brought at the same time. When they are, then the third-party claim may be required to reimburse the workers compensation claim. For example, if all of your friend’s medical bills have been covered in his workers compensation action and he makes a claim for the medical special damages in his third-party action, the worker’s compensation matter may seek reimbursement for what has paid out to your friend as replacement wages. The idea here being that the injured party should only recover his lost wages once. If he receives wage replacement from workers compensation, that is also later paid by the third party, it is only fair that the compensation system be reimbursed.  

While most jobs have worker’s compensation coverage, there are two categories of employees who do not receive coverage for injuries at work under a workers compensation plan. Those two special categories are interstate railroad workers and crew members on boats. The railway workers can bring an injury claim under the Federal Employers Liability Act, and vessel crew members can bring injury claims under the Jones Act.  

In this situation you’ve talked about the homeowner could face a claim as a third-party defendant. To bring a matter against the homeowner, the homeowner’s actions would need to be evaluated to establish if the actions were negligent. An attorney would need to evaluate the circumstances of your friend’s fall and see if there is a cause of action against the homeowner.  We wish your friend a speedy recovery.

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Who is responsible for Dangerous Conditions on Roadways?

Written By Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Ashely L.  from San Jose: My uncle Ralph was driving his motorcycle in an unincorporated area of San Jose when he lost control and went down. It appears that the road was unkept. I am trying to help my uncle, who doesn’t even have email and is not good with using the internet, with his case. The police officer said that the road should have had a sign and a barrier, because lots of accidents happen at that location where my uncle lost control. I am not sure how we go about proving the road caused my uncle’s accident. Does whomever own the roadway have insurance, like cars do to pay claims? 

Ashely, I am sorry to hear that your uncle was in the accident. The type of case you are describing is called a Dangerous Condition case. These are very complex legal cases, and they are not the kind of case that I advise that injured victims, or their families tackle alone. To prove a Dangerous Condition case, you must prove that the roadway was a dangerous condition, that the government entity who controlled or owned the road, knew or should have known about the dangerous condition, and that they had time and money to fix the condition, but did not. Your family would also have to prove that the dangerous condition in the roadway caused the accident. Dangerous condition cases can involve motorcyclist, runners on a highway, cars, trucks, or even bicycles. The Defendants in these cases are the cities or counties that own the road. 

It is important to document the scene immediately with photos if the injuries are serious. The first thing our law firm does is go to the roadway in question or use the police report to pull the location up on Google Earth. Often the police reports for accidents, wherein a roadway condition may have contributed to the loss, do not document the scene well, or even mention a dangerous condition that may have contributed to the accident. We have personally litigated a motorcycle collision wherein a pothole caused the crash, yet no pothole was photographed or even mentioned in the police report. In this case, a witness was able to describe what the motorcyclist hit, and what happen to him, as our client had no memory of the crash.  

After visiting the scene, the next thing your attorney should do is research the accident history through the TIMS database maintained by UC Berkley and issue a Public Records request of the county and city the subject roadway is in. The TIMS database allows you to enter in a county and city pull all accident history for the location by way of a map or a list. This can help us get an initial baseline on whether or not a dangerous condition can be proven. The number of accidents at a location, if it is higher than normal, goes to prove notice of the dangerous condition and that the location is dangerous. You want to look for similar accidents, so in your case you are looking for single vehicle accidents, as opposed to a sideswipe collision. This information is then verified with a public records request to Caltrans for the same data. The TIMS database is free, and so are public records requests typically. Remember, a court will only consider similar accidents in considering whether accident history is relevant to your case. 

Another thing you and your attorney should do is get public records request from the entity that owns or controls the subject roadway. These public records requests are usually tailored to government entity claims regarding the location, complaints, roadway work and maintenance, along with evaluations done for repair of the subject roadway such as pavement index reports or permit and bidding documents. Lastly, if the case is near commercial buildings or in a residential area, often our firm will hire a private investigator to conduct additional research. Long term business owners or homeowners may have taken pictures of your alleged dangerous condition. Depending on the type of dangerous condition, these business owners or property owners may have also attended City Council meetings and demanded action or emailed the city. There have even been instances where neighbors complained to the city on social media applications like Nextdoor, which can be used. 

Because these types of cases have strict guidelines regarding claim presentation and pleadings it is also advisable to seek counsel to investigate this for you. An attorney can gather this data and advise you of the likelihood of being successful in a dangerous condition case, very quickly. I hope your family continues to heal and you get answers as to what occurred that day for your uncle. 

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Traffic Collision Reports: What information is in them and who can get a copy?

Written By Christopher Dolan and Casey Hultin

This week’s question comes from William from the Bay Area: My friend rides a motorcycle and was recently injured when he was hit by a car. He believes the police officer who arrived at the scene was biased against him and didn’t even take his statement. He is worried that the police officer found him at fault. Is there some type of report he can get a copy of and if so, who writes them? How can he get a copy of his report? If the report puts him at fault, what can he do? Can he submit a supplemental report? 

Great question William. 

A traffic collision report is a form filled out by the investigating police officer at the scene. The form seeks basic information such as where the collision took place, the names of the people involved along with their contact and insurance information, the vehicles involved, any property damage, and any injuries. It will also generally include a summary of any statements taken at the scene or as part of the investigation, as well as the names of any witnesses interviewed about the collision. There may also be other additional scene investigation information, such as the locations of any cameras that may have caught footage of the incident or measurements for any debris or skid marks. 

To obtain a copy of the traffic collision report, you must qualify as a party of interest in the crash. This generally includes drivers, passengers, vehicle owners, or a parent or guardian of an involved minor. You must complete and sign a request form for the information and provide the date of the collision (or approximate date), collision or incident location (as much information as you have if you do not have a specific address), the name of the driver or owner of one of the involved vehicles, and your name and address. There may also be a small fee. If you are represented by an attorney, your attorney can also help you obtain a traffic collision report. 

If the traffic collision report places you at fault, it will likely make your injury claim difficult to resolve without filing a lawsuit. Insurance companies heavily rely on the traffic collision report when determining who is at fault for claim assessment purposes.   

However, if the traffic collision report places you at fault, that does not mean any claim to injury is doomed. The conclusions in the traffic collision report are often not admissible at trial, meaning that the judge or the jury cannot consider it when deciding who is at fault for the collision. Further, through the litigation process and depositions (questioning witnesses before trial under oath), it is possible to get the officer to walk back the conclusions in the report. For example, often investigating officers do not have the benefit of canvassing for all possible witnesses at the time of the collision because they are dealing with many other competing interests, including making sure any injured people receive medical care and clearing the area for through traffic.

If you find additional information that the investigating officer failed to consider, you can contact that officer and provide the additional information to them. For example, if there is an additional witness the officer missed, you can call and provide that witness’s information so the witness can give a statement. If there are additional photographs, you can send them in as well. If there are inaccuracies in the report, you can point them out. All of these can lead to the officer amending and our supplementing the traffic collision report. You also have the option to get a formal dispute form from the Department of Motor Vehicles in the event the officer is not responding.  

In practice, if the traffic collision report is inaccurate or comes to the wrong conclusion, while you can try to get the officer to author a supplemental report, you are better off navigating the circumstances through an experienced attorney. Especially because, as discussed above, the traffic collision report conclusion is not determinative of fault in a court of law. 

We wish your friend a speedy recovery.  

 

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In The Zone of Danger: Witnessing a Loved One suffer Severe Injuries

Written by Christopher B. Dolan 

This week’s question comes from Travis from the East Bay: 

My wife of 43 years and I were crossing the street in San Francisco. She was just a few steps ahead of me when a car ran the red light and hit my wife! The vehicle struck her with such force that she became airborne before collapsing on the ground. I was stunned and horrified. She was lying there, and for a minute, I thought she might have died. She had lost consciousness and was not moving. Fortunately, she lived, but she sustained two fractured legs and a significant head injury. She had to stay in the hospital for a few weeks. I thought I had lost her. She is the love of my life, and the thought of losing her was terrifying. Watching her get hit like that was incredibly scary- I think I stopped breathing. Since then, I have become increasingly anxious and unable to sleep as the image of her getting hit is on constant replay in my mind. I’ve had to seek therapy. I know she can file a lawsuit for her injuries, but what about me?

I am so sorry this happened and that you had to witness it. It appears that you are suffering from emotional distress as a result of this incident. You certainly do have a claim for negligent infliction of emotional distress. In California, the law of Negligent Infliction of Emotional distress can flow from two different theories: Bystander Theory and Direct Victim Theory. The Bystander theory requires that the plaintiff contemporaneously observe the injury-causing event. Thing vs. Chusa (1989) 48 Cal.3d 644. The difference between the bystander and the direct victim cases is that the direct victim cases seek emotional distress damages based on the breach of the duty owed to the plaintiff that is “assumed by the Defendant or imposed on the defendant or imposed on the defendant as a matter of law that arises out of a relationship between the two.”  Marlene F. v. Affiliated Psychiatric Medical Clinic, (1989) 48 Cal. 3d 583, 588, 257.

You could recover under the bystander theory. To prove negligent infliction of emotional distress as a bystander, you must show: 1) that you are closely related to the victim, 2) the defendant’s conduct negligently caused injury or death to the victim, 3) that you were present at the scene of the injury (“zone of danger”) when it occurred and were aware that the victim was being injured, and 4) as a result of the injury, you reasonably suffered severe emotional distress beyond that which would be anticipated in a disinterested witness.  Dillon v. Legg (1968) 68 Cal.2d 728. 

In your case, you witnessed your wife suffer life-threatening injuries as a result of the negligent driver who ran the red light. You were in the zone of danger as you were present when the collision occurred and are experiencing severe emotional distress as a result. Thus, you can recover any medical bills, bills for psychological counseling, lost wages, and pain and suffering because of the accident. 

We hope you and your spouse continue to get better. 

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Hit and Run or Uninsured/Underinsured Motorist Insurance Claims

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland:

I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least. The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):
What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?
There are two ways that med pay typically works:

  1. You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
  2. You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?
There are several reasons this coverage is useful even if you have health insurance.

  1. First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
  2. Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):
What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.  

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.  

How does it work?
With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage. 

  1. First, there must have been contact between your vehicle and the hit and run vehicle.
  2. Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
  3. Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement. These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?
In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault.  (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.  

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?
Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.  

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My First Auto Accident. What Do I Do?

Written By Christopher B. Dolan and Corinne D. Orquiola

This week’s question comes from Angelica H. in Pacific Heights who asks: I was at a complete stop at a red traffic light at the intersection of Market Street and 6th Street, when suddenly and without a warning, the vehicle directly in front of me reversed straight into my vehicle when the light turned green. The forceful impact caused me to crash into the vehicle behind me, leaving me sandwiched in between the two vehicles. The front of my vehicle is destroyed. To make things worse I began to feel excruciating pain in my right wrist, and it became swollen immediately after the impact. This is my first car accident, and I don’t know where to begin. I exchanged information with the other drivers and gave a statement to the reporting police officer. All I know is that my car is undriveable and I have a mounting pile of medical bills that I have not been able to pay since I had to take time off work after my wrist surgery. I realize that this is not a typical car accident, but is there anything I can do to recover for my medical bills, lost wages, and pain and suffering?

Dear Angelica: The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. You did the right thing exchanging information with other drivers. After a car accident, it is very important to obtain the other driver’s information which includes:

  • Full Name
  • License Plate
  • Car Insurance Information

It is also important to obtain a copy of the police report and to take pictures of your injuries, the property damage, and the accident scene itself to give context. 

Under California Vehicle Code (CVC) section 21451 (a), a driver facing a circular green signal, “…shall proceed straight through or turn right or left or make a U-turn unless a sign prohibits a U-turn.” Furthermore, CVC 22106 states that, “No person shall start a vehicle stopped, standing, or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety.”

In your case, the driver violated these two sections because they failed to proceed straight through the intersection as mandated by CVC 21451(a). Second, they did not start the vehicle from a stop with reasonable safety because they did not notice that the vehicle was in reverse gear. Clearly, they were operating the vehicle negligently.

If you were injured in a car accident because of another’s negligent driving, you have the right to seek compensation for your economic and non-economic damages. Economic damages include tangible losses that can be easily calculated such as medical expenses, lost wages, and property damage. In regard to the medical expenses you have incurred, you are entitled to recover the amount paid by your health insurance as well as any out-of-pocket expenses. For this reason, it is important to keep copies of your medical expenses, including but not limited to:

  • medical bills
  • receipts for pain medication, and
  • receipts for any medical devices you had to purchase as a result of the accident.

Similarly, you will want to gather information to support your loss of wages claim such as pay stubs or a letter from your employer confirming the dates you missed from work as a result of this collision. 

Non-economic damages are more difficult to quantify as those damages relate to the types of harm that do not come with a receipt. Under California Jury instruction 3905A, you may recover for non-economic damages which include things like pain and suffering, physical impairment, disfigurement, grief, anxiety, humiliation, inconvenience and emotional distress. Be mindful of how your life has changed since the accident and take note of activities you are unable to do as a result of your injury as they will form part of your non-economic claim. 

We have handled numerous cases in which individuals have suffered bodily injuries due car accidents. However, this column does not constitute legal advice and it is important that you consult with an experienced trial lawyer as soon as possible, especially if you suffered personal injuries.

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A Closer Look at California’s New Laws for 2021

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

 Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage 

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties. 

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

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Safety Measures for Cyclists and Truck Drivers

Written By: Christopher B. Dolan and Emile A. Davis 

This week’s question comes from William B. in Berkeley who asks: On the news I heard about a truck that collided with a group of cyclists. It was horrendous. Some cyclists were terribly injured and one even died. I realize, as a cyclist, how vulnerable we cyclists are, even when we are being cautious and aware. What protections do we have if a truck takes us out? Anything?

Dear William: Thank you for this important question about trucks, cycle safety and protections. As a cyclist myself, and having represented hundreds of cyclists, I am all too aware of the dangers caused by automobiles in general and the particular issues raised by large trucks. To answer your question, I look to three categories of protection:

1) steps that can be taken, as a cyclist, to avoid accidents with trucks;

2) rules truck drivers must follow to ensure they are alert and aware; and, finally, if the first two fail,

3) remedies and inquiries to seek justice after a collision.

Steps that Cyclists Can Take to Avoid Accidents

The sad truth is that many motorists simply do not see cyclists. It is not merely inattention, but a neurologic phenomenon sometimes called, “filling in.”  People’s brains are continuously anticipating what we will see. If an object is obstructed, the brain simply, “fills in,” the missing information with its best guess. There are several steps a cyclist can take to make sure they are actually seen. The easiest is to use anti-camouflage; wear bright colors and reflective gear, have lights and reflectors on a bicycle in order to stand out from the environment and draw attention to yourself. That way the cyclist is seen and the driver does not just, “fill in,” the scenery. 

You hit upon perhaps the most important other steps that can be taken – actively being cautious and using situational awareness to know when danger is increasing. These are key to a cyclist’s safety in relation to not only trucks, but traffic in general as well as roadway defects.

Department of Transportation Rules to Keep Truck Drivers Safe and Alert

Often, thankfully, long haul truck drivers are some of the best and most experienced drivers on the road. Additionally truck drivers are subject to many specific rules and regulations designed to make sure they are alert and driving safely. The Federal Department of Transportation, through the FMCSA (Federal Motor Carrier Safety Administration) has regulatory authority over truck drivers. They have a number of safety-based regulations affecting property-carrying vehicles. Initially, the driver must be at least 21 years of age, possess a commercial license and complete a road test. Any driver who has been convicted of a DUI or transporting drugs would be disqualified from employment in this field.

Once a driver is hired, they must record and certify in a log their driving start and end times as well as days off to demonstrate that they have followed basic safety requirements such as:  

  1. A driver must have had 10 hours off duty before beginning a shift.
  2. A driver may not drive after a period of 14 consecutive hours until he has had 10 hours off duty.
  3. A driver may drive for a total of 11 hours out of this period of 14 consecutive hours.
  4. A driver may not be on duty for a period of more than 60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

The requirements are even more stringent if the driver is transporting passengers. A complete list of DOT regulations can be found at: https://www.fmcsa.dot.gov/regulations/title49/b/5/3

Recovery if a Collision Does Occur

Unfortunately the above precautions are not always enough and a cyclist is injured by a truck. When that occurs the law provides that a responsible party pay for the damages suffered by the person injured.  The law anticipates that trucks have the potential to cause greater harm than typical automobiles. Insurance coverage for trucks, unlike the relatively small insurance policies required by automobiles, are more substantial. Large commercial trucks transporting goods are required to carry a minimum of $750,000 in available insurance. Companies are often also encouraged to carry additional Commercial General Liability insurance to protect their assets, and individuals injured because of the potential trucks have for creating very serious injury, such as the collision that prompted you to write.

To obtain justice for a person injured by a truck a good lawyer will confirm all available insurance policies. They will also investigate to determine if the DOT safety regulations were properly followed.  Where there was a failure, it is important to determine if it was merely a failure of the truck driver to do the right thing, or, whether the employer of the driver set expectations or policies that required a driver to push the limits of the regulations and to drive unsafely. Similarly, a company that employs truck drivers may not properly screen or train drivers appropriately for the type of driving they are tasked to do. Employer failures of this type can open the employer up to the potential liability to compensate an injured person beyond the limits of an insurance policy.

As with many activities, if everyone does their part to avoid accidents, they become far less likely. However, they do still occur. If you or someone you know is injured by a truck driver, while cycling or otherwise, consult an attorney such as those at the Dolan Law Firm who are experienced in that area of law.

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