New California Law Reduces Bicycle Injury Accidents

March 18, 2014, by Thomas Lewellyn

bike law.jpegEveryday I see articles in the newspapers about bicyclists being injured in collisions with autos. Recently, Governor Brown signed a bill which should help reduce the number of these accidents.

The new law (AB 1371), known as "Three Feet for Safety", goes into effect on September 14, 2014. The new California law requires drivers of automobiles to give bicyclists at least a three foot cushion when passing a bike from behind. Previously, the law simply required that motorists pass at a safe distance without specifying what that distance was.

There is an exception to the law which states that if the driver is unable to comply with the law due to traffic or roadway conditions, he shall slow to a reasonable speed and may only pass the bicyclist when doing so would not endanger the bike rider.

As an Alameda personal injury lawyer, and as a bicyclist myself, I have seen many instances where cars passing too closely cause a serious risk to the bike rider. If the car or truck passes too close, the side view mirror can clip the bicyclist causing severe injuries. Or worse yet, when passing too close, even a slight movement by the cyclist can cause a collision which can result in catastrophic injuries or even death. A study done by the Highway Traffic Safety Administration showed that in the 1990's 24% of bicycle versus auto accidents involved cars passing bikes. I believe that this new law should significantly help reduce the number of these serious accidents.

The same study showed that the most frequent type of automobile/ bicycle accident involves the motorist turning into the bike's path. This usually occurs when the driver of the car is making a left turn in front of the cyclist. Often, the driver is distracted looked for other cars that may be entering the intersection, but does not see the bicyclist approaching him. Therefore, a cyclist should always be alert when entering intersections to look for left turning vehicles in front of him.

Bicyclists should do their part to promote safety as well. The California Department of Motor Vehicles has a helpful site which provides some good safety tips for drivers and cyclists alike. They describe the rules that bikers must follows:

  1. Always ride with traffic;
  2. Bicyclists are subject to the same laws as cars, so stop for all traffic lights, and obey all traffic signs;
  3. When there is a bike lane, cyclists must use it if moving slower than normal traffic;
  4. Use proper hand signals when turning;
  5. Before leaving a lane, use a hand signal;
  6. Bikes are not allowed on most freeways;
  7. Bikes must be properly equipped;
  8. Headphones cannot be worn over both earns while riding a bike.

Bicycle riding is a wonderful form of recreation. I've ridden through the Wine Country, from Red Bluff to Lake Almanor, from California to Oregon, not to mention, my frequent trips around Alameda itself. During those trips, I have experienced my share of vehicles passing too closely. As a cyclist and as an injury attorney, I am gratified to see that Governor Brown has signed the "Three Feet for Safety" bill into law.


Alameda Pedestrian Accidents Raise Safety Concerns

December 3, 2013, by Thomas Lewellyn

ped crossing.jpeg
This past November two pedestrians were critically injured in separate auto accidents in Alameda. One accident occurred on Bay Farm Island, and the other occurred on Webster Street near the Posey Tube. Both accidents are still under investigation by the Alameda police.

Recently, I was at an event at which Mayor Gilmore was speaking. She mentioned that Alameda experienced over forty pedestrian accidents in the past year alone. When I first heard this number, I was rather shocked. That is an average of over three pedestrian injury accidents per month. But then I began to think about it, and wonder if this was a high number or not when compared to other cities with similar population bases.

It turns out that the State Office of Traffic Safety did a study which addressed this question of where Alameda ranks in terms of auto accident safety in general. It is based on data through 2010 which came from the California Highway Patrol, Caltrans, county coroners, and the state departments of finance and justice. When comparing the City of Alameda with other cities with populations between 50,000 and 100,00 people, Alameda ranked 76 out of 103 cities in the number of auto accident where victims were injured or killed (A number 1 ranking is the worst and a ranking of 103 being the best). However, when comparing the city with other cities based on the "daily vehicle miles traveled", Alameda did worse, ranking 38 out of 103. There was a total of 209 injured auto accident victims in general in 2010. Therefore, it would appear that our having forty pedestrian accidents in 2013 would seem to be a high number for our city.

Overall, the picture for the State of California in general is improving. The number off fatal auto accidents was the lowest since 1944. Experts attribute this to safer roads, safer vehicles, better restraint systems, and better alcohol awareness programs.

As an Alameda personal injury attorney, I have represented numerous pedestrians who have been injured in serious automobile accidents. As you might imagine, the injuries are often serious and permanent. Frequently, the pedestrian suffers serious injuries to the legs, and knees. If he or she is thrown up onto the hood of the vehicle, we ofter see traumatic brain injuries as well. Many of these pedestrian injuries occur while the injured person was lawfully walking in a marked crosswalk.

What can we do to help reduce the number of these injuries? As drivers we must be particularly observant when making left or right turns at an intersection. Often times, a pedestrian will be crossing the street with a green light and will have the right of way in the crosswalk. However, we may be more focused on auto traffic and not be looking for pedestrians. These are probably the most frequent types of pedestrian motor vehicle collisions that I see. As pedestrians, even though we have the right of way in the crosswalk, we shouldn't take that right for granted. Always be vigilant for turning vehicles while crossing the roadway, and never cross the street while using your cell phone or engaging in other distracting activities.

If you are injured as a pedestrian, you may file a personal injury claim to recover for your medical bills, your lost earnings and your pain and suffering, If the driver was uninsured or was a hit and run driver, as a pedestrian, your own automobile uninsured motorist coverage will protect you.

Sources:

Two Pedestrians in Critical Condition After Pair of Accidents, Alameda Patch, November 7, 2013

Traffic Accidents: How Alameda Stacks Up, Alameda Patch, April 10, 2012

Experts Invaluable for Alameda Personal Injury Practice

November 7, 2013, by Thomas Lewellyn

I heard the other day yet another theory of how the young Pharaoh King Tutankhamen died and my interest was peaked. So many diverse theories have surrounded his demise; a blow to the head, various diseases possibly as a result of congenital malformations. But this latest theory falls into my line of work. Egyptologist Chris Nauton and a team of crash investigators posit that King Tut's untimely death may have been caused by a chariot accident!! Their findings show that the injuries he sustained are consistent with a high-speed collision. Unknown.jpeg

As an Alameda Accident attorney for over 30 years, I have often hired experts in the fields of accident reconstruction, engineering, bio-engineering and biomechanical engineering to analyze the physical evidence of an accident and the injuries suffered as a result. Analysis of roadways, skid marks, property damage of the vehicles and witness statements can all help to determine how an accident occurrs and where the fault lies. Utilizing scientific methodologies, experts in these fields can testify in court about how an accident happened.

Further analysis can also help to determine the mechanism of an injury sustained in the accident. Testimony by a biomechanical expert in a trial illustrates to a jury how the motion and forces caused an injury. This type of testimony can be crucial especially in cases of traumatic brain injury if the victim cannot testify on his or her own behalf.


To date I have not had any experience with chariot accidents but these experts can be invaluable in car accidents, bicycle crashes, pedestrian vs automobile and motorcycle accidents. In the case of King Tut, the investigators utilized software simulations that lead them to the conclusion that he was killed in a chariot accident. The same computer simulation is employed today to demonstrate in court to a jury how an accident has occurred and the resultant injuries.

It is amazing that some 3300 years after his death, Mr. Nauton and his team have developed this theory of King Tut's death. Obviously it was quite a challenge to reconstruct the accident after so much time has passed. If someone has been involved in an accident, I recommend contacting legal counsel as soon as medically possible. Over time valuable evidence can be lost or compromised. In the case of a fall, a defect in the sidewalk may be repaired before photos showing the defect can be obtained. The county or public works departments may change poor roadway designs after a major highway accident. Accidents that are caused by faulty highway design are extremely complex cases and necessitate experts in the field of traffic design. They will analyze the scene and determine if the standards according to the California Traffic Design were met in the design of the roadway. They will render an opinion with supporting evidence if a roadway defect was a significant contributing factor in the accident.

I am not sure that King Tut's family would have pursued a wrongful death action. In fact, his accident would probably fall under the category of worker's compensation as it is believed the accident occurred while leading his army into battle.

Resources:

PBS New Hour
Radio Times.com
California Department of Transportation


Park Street's Classic Car Show in Alameda

October 11, 2013, by Thomas Lewellyn

Park Street's 20th Annual Classic Car Show is this weekend in Alameda. The show will feature over 400 vintage cars including Hot Rods, Muscle Cars, Roadsters and Classic Trucks. I love a good car show!! I always marvel at the beautifully restored automobiles. It is a real stroll down memory lane! I'm hoping to see my first car, a '65 blue Chevy Impala SS. It was a sweet ride with dual exhausts, a 327 V-8 engine with black leather interior. I found this photo that looks just like it. images-1.jpg

As an Alameda Personal Injury Attorney, car shows always make me wonder how anyone survived an accident in those old cars though. They did not have headrests, updated seat belts, airbags and sensing systems. These improvements have enhanced the safety of today's cars and have greatly improved the chances of surviving a serious automobile crash.

My '65 Chevy did not have headrests. In the 1960's more than 400,000 persons a year suffered the effects of whiplash in rear end accidents. The head jerking back past the top of the seat back in a rear end collision caused injury to the neck and upper back. Automobile manufacturers in conjunction with safety research institutions devised the head restraint which in effect extends the back of the seat and thereby supports the neck and head and helps prevent hyperextension. Beginning January 1, 1969 the National Highway Transportation Safety Agency required head restraints for all passenger cars sold in the United States. Statistical research has shown that head restraints have significantly reduced whiplash injuries in rear impact crashes since that law was implemented.

My car had bucket seats with seat belts but they were the two point lap belts. The Sports Car Club of America first introduced these belts to cars. They kept motorists from bouncing around in the vehicle in an accident or being thrown from the car. But there were negative side effects such as abdominal injuries, vertebral fractures, spinal chord injuries and paralysis. Nils Bohlin, a Swedish engineer who worked for Volvo in the 1960's designed the three-point seat belt which added the strap across the chest. The NHTSA credits this seat belt system for saving over 11,000 lives each year in the U.S.

In the early 70's major US automakers began offering cars equipped with airbags. They were initially called "Supplemental Restraint Systems, and were created because people were not using the seat belts. That was before the law mandating seat belt use. The slogan " Click it or Ticket" was not posted on highways in those days advising motorists to buckle up. Airbags have evolved over the years to be one of the most effective safety devices in a vehicle especially in a head on collision.

More recently auto manufacturers have introduced innovative sensing systems to detect how close you are to another vehicle or object has reduced the number of accidents involving large vehicles such as trucks and SUV's that have poor visability. The sensors also warn if you are backing your car up and an object is behind you such as a bicycle preventing potentially tragic accidents.

I am happy that cars today have these safety features but I will enjoy the car show this weekend and appreciate the beauty of the old cars too.

Resources:
Alameda Sun, October 12, 2013
National Highway Transportation Safety Agency,

Consumer Reports,

California DMV tries new training methods to reduce teen car accidents

October 7, 2013, by Thomas Lewellyn

I am a baby boomer and a major rite of passage when I was a teen was getting your driver's license. My birthday is in November and I was one of the youngest in my class so I watched all my friends get their licenses ahead of me. I couldn't wait to drive!! The requirements for a teen to get their licenses were different in those days. To prepare for the written permit test we studied the California Drivers Handbook. Pretty dry reading. Of course that was before the Internet and YouTube. The California Department of Motor Vehicles now has it's own YouTube channel! Teens learn how to apply for their driver's license, the rules of the road and vehicle safety via videos. The DMV has even taken a page from the David Letterman show with a video entitled "The Top 10 Reasons for Failing the Driving Test!!" Of course it is recommended that you also read the handbook, but I have to say a video is a considerably more interesting way to prepare for the test. images.jpg

In my day most high schools offered driver's education as a school elective. My wife remembers her Physical Education teacher taught the driver's ed class in her high school. There was a classroom component but on Saturday mornings students were assigned a time slot for the practical driving portion of the class. Sheila remembers her slot was about lunchtime and her teacher, Brenda Henderson, taught her what she said was one of the most important driving lesson she would ever learn; how to drive through a fast food drive thru lane!

As an Alameda Personal Injury Lawyer, I believe the driving regulations for teenagers have been a great safety measure. Today teens under the age of 18 applying for their license must complete a 30-hour driver education course prior to taking the written permit test. This can be done on-line. Then they must complete 6 hours of professional behind the wheel driver training and have completed 50 hours of practice with a California licensed driver over the age of 25 who will certify to the 50 hours of practice at least 10 of which were done at night. While some high schools still offer driver's education as part of their curriculum, it is a rarity with the budget cuts. Today the cost of getting your drivers license has increased as well. Many of the courses can cost upwards of $350.

Upon completion of all the education and testing, drivers under the age of 18 earn what is termed a "provisional license" with 12 months of restrictions before they can earn their full California drivers license. During the initial 12 month period they are restricted from transporting anyone under the age of 20 unless accompanied by an adult. That means they cannot drive their friends unless there is an adult in the car with them. They also have a driving curfew between the hours of 11:00 p.m. to 5:00 am. Studies have shown that these laws have lowered the risk of serious injury accidents involving teens.

Sadly an unexpected outcome from these more restrictive laws for young drivers is that increasingly teens are waiting until they turn 18 to get their license and thereby avoid these hassles. California does not require adults over the age of 18 to take driver education classes or any behind the wheel training. You only need to pass the written and behind the wheel driving tests. The driving test does not even include the dreaded parallel parking component.

Maybe it is time for the California Department of Motor Vehicles to instigate stronger driving training laws for anyone applying for a license regardless of their age.

Resources:

California Department of Motor Vehicles,

San Francisco Chronicle, September 27, 2013,

A Cell Phone Camera can be Crucial in a Car Crash

September 27, 2013, by Thomas Lewellyn

A cell phone camera can be essential if you've been in an accident. Take-that-shot-150x150.jpg

I was reading one of our local newspapers, The Alameda Sun, the other day and saw a letter to the editor regarding an automobile/bicycle accident. The author of the letter had been riding his bike when he was hit by an SUV. According to the letter, the bicyclist approached a T intersection in Alameda. He was riding on the through street and the SUV was already stopped at the stop sign at the intersection. According to the bicyclist's account, he saw that the SUV was stopped and he preceded riding through the intersection. The next thing he knew the vehicle collided with his bike and he was on the ground. The driver of the vehicle stopped, offered to take him from the scene to the local bike shop to repair his bike. The bicyclist not only rejected the offer, more importantly he neglected to get any identifying information from the driver of the car. He was now posting a letter to the editor in The Alameda Sun trying to locate the driver. Fortunately it sounds like the bicyclist was not seriously injured however it seems he is out of pocket for repairs to his bike.

As an Oakland personal injury lawyer practicing in the bay area for over 30 years, I was motivated to write again about some essential steps you need to take if you are involved in an accident. Whether it's an automobile vs bicycle, auto vs auto or automobile vs pedestrian accident, your cell phone camera can make it easy to take these important steps.

I always recommend you call 911 and request a police officer respond to the scene. These days, with police force numbers reduced, an officer will not always respond to an accident call. I have even experienced times when an officer will arrive at the scene but decline to make a report. They simply advise all parties to exchange insurance information. This can be problematic. If a dispute of liability rises later, a police report can be an important factor.

Even if the police do respond to the scene, I recommend obtaining the following information yourself. If you do not have a pen and paper, use your cell phone camera to easily capture this important information.

1. The name, address and phone number of each driver, passenger, and any witnesses at the scene. Do not rely on the police to get this information. Unfortunately in many cases, the police may get the name of only one witness or none at all. This contact information can be crucial. Snap a photo of their driver's licenses.

2. The name of the insurance company and policy number for each vehicle involved. California law requires all vehicles carry proof of responsibility in the form of an insurance certificate. Each insurance company has a different format so to make sure you get all the essential information, snap a photo of the insurance certificate.

3. The license numbers for each automobile- snap a photo of each automobile license plate.

4. Take photos of the vehicles involved and the positions on the street before you move any vehicles.

5. Take photos of the damage to all vehicles. Many times people think they only need to get the photo of their own vehicle's damage. The forensic evidence of the photos of all vehicles can be significant especially if the need for accident reconstruction arises later.

6. If a police officer does arrive at the scene, the name of the officer, badge # and the NCIC number for the report. This will allow you to follow-up later with the police department to obtain a copy of the completed report. In this case I do not recommend taking a photo of the police officer- but they often times will provide a written receipt with this information to all parties involved. You can snap a photo of this so that all your information is saved in one place and won't get misplaced.

Many times when you are involved in an accident, you are upset and frightened. It is difficult to think about what to do. Print a copy of this blog and keep it in your glove box next to your proof of insurance certificate. Or in keeping with the theme of this entry, snap a photo of this blog and store it in your phone!

Resources:

Alameda Sun, September 26, 2013,

Vehicle Code Section: 1656.2 California Department of Motor Vehicles


Concussions are Definitely Brain Injuries

September 12, 2013, by Thomas Lewellyn

I looked up the definition of concussion in my computer dictionary today. The definition is: "temporary unconsciousness caused by a blow to the head. The term is also used loosely of the aftereffects such as confusion or temporary incapacity." That peeked my interest so I sought out definitions from other dictionary sources, we have so many to choose from these days. The definitions usually reference amnesia or loss of consciousness and sometimes mention brain injury. I question this definition. While a concussion may cause unconsciousness it does not always happen, but the fact is it is always an injury to the brain. 012709concussion2_54304a-1.jpg

A class action lawsuit between the NFL and more than 4,500 former players and their families regarding the issue of concussions was recently settled to the tune of $765 million. For many years these former NFL players have suffered the long-term cognitive effects of concussions. Most of these head injuries did not result in loss of consciousness. As part of this settlement, the NFL will be allocating $10 million to underwriting concussion- related research.

Coincidently experts are convening in Santa Clara this week to discuss concussions in sports. While this conference coincides with this recent settlement, it was obviously in the works long before. You do not gather a host of experts in the fields of medicine and sports overnight. Thankfully the sporting world has taken a better and stronger look at the impact of concussions on athletes.

I have written several articles addressing the issue of concussions and some of the cutting edge research going on specifically in the Bay Area. Research into the effects, treatment and preventative measures to help sufferers of concussions is so important. Concussions not only happen to athletes but to victims of a fall or car accident, so I welcome anything that will bring to the forefront research to help people who suffer the effects of these brain injuries.

I was recently at the Hot Summer Nights car show in Danville, with my wife. I pointed out that many of the old cars had no headrests. When you are in a rear end accident, the headrest stops the backward movement of the head. Imagine the horrific impact to the head without headrest protection! Without a headrest your head whips back and forth and your brain bounces back and forth against your skull as well. The results can be a concussion or a traumatic brain injury (TBI).

Airbags are an extremely important improvement in auto safety but the force of an airbag can sometimes be so strong that drivers and/or passengers sustain concussions from the impact of the bag itself.

As an Oakland personal injury lawyer, I have seen many clients suffer concussions. I have seen clients endure the debilitating headaches, confusion, memory loss, ringing in the ears, nausea or vomiting and fatigue. For many, their day to day lives are greatly altered.

Some symptoms of concussions may be immediate while others may be delayed by hours or even days after the injury. While some brain imaging techniques can measure the severity of the injury such as bleeding or swelling in the skull, many times the diagnosis is determined by a neurological exam. Since definitive diagnosis is difficult and indicated by symptoms, I have seen insurance companies reject medical evidence in reviewing a claim. Many times insurance companies will not view the seriousness of the recovery of a concussion in the same regard as they view the recovery from a broken bone. Having practiced personal injury law for over 30 years, it is my job as your attorney to convey to the insurance carrier the seriousness of this type of injury and the impact it has on your life.

Resource:

NFL and ex-players reach deal in concussion lawsuit, CNNHealth, August 30, 2013

Concussion experts gather in Santa Clara to talk about concussions in sports, Inside Bay Area News, September 11, 2013

Danville Hot Summer Nights, 2013



California Statute of Limitations for Personal Injury Claims: The Rules and Exceptions

April 22, 2013, by Thomas Lewellyn

time.jpegWhen I was in high school, I remember there was a clock over the door in our Latin Class. Beneath it was the inscription, "Time will pass. Will you?" I always get a chuckle when I think of it. In the legal world, when time passes so can your rights to sue if you do not take timely action.

The laws governing when a suit must be filed are called statutes of limitations. A statute of limitations is the limited amount of time one has to file a lawsuit for a claim. The time periods for different type claims will vary. Statutes of limitations may be as short as six months, or as long as four years or more years, depending on the type of claim that you have.

General Statute of Limitations for Personal Injury Claims

This article will discuss in general terms, the statutes of limitations as they pertain to personal injury claims. For a typical personal injury claim, such as an automobile accident, slip and fall, dog bite, or product liability claim, the statute of limitations is two years. This does not include claims against governments, hospitals, or other public entities, where a shorter time period applies (See my article on filing claims against public agencies), nor does it apply to medical malpractice/negligence cases. This means that a lawsuit must be filed within two years of the date of your injury occurring or your claim will be barred by law (Code of Civil Procedure 335.1).

Exceptions

While normally a personal injury lawsuit or suit for wrongful death must be filed within two years of the date of the injury or death, there are numerous exceptions which may extend the statute. The legal term for this is the "tolling" of the statute.

Discoverability Rule

A claim does not originate legally until someone has knowledge of the negligent act which causes their harm. The "discovery rule" postpones the accrual of a cause of action until the injured party discovers or has reason to discover the cause of action. For the purposes of this rule, the plaintiff discovers the cause of action when he or she at least suspects a factual basis for the claim. Simply put, the injured party need not know there is a legal basis for the claim, but rather suspects that someone has done something wrong to him. An example of this would be where someone has been exposed to a toxic material, but did learn that his medical problem was related to the previous exposure until a much later time. This was the cases for thousands of shipyard workers who worked around asbestos products. They did not learn of the dangers of asbestos for thirty to forty years after exposure to the toxic material. Due to the discovery rule, however, these workers did not lose their rights to sue the asbestos manufacturers. More recently in the news, there have been reports related to the Gulf Oil Spill, that clean up crew workers are experiencing a variety of late developing health problems associated with the dispersant Corexit.

Incapacity

If someone is incapacitated, the statute of limitations is tolled for the time period of the incapacity. Incapacity generally means that a person is incapable of caring for his or her property or transacting business, or understanding the nature or effects of his or her acts. This may come up in the case of an elderly person who suffers from dementia, or where someone has a severe injury which affects their cognitive abilities.

Minority

The statue of limitations does not start running for a minor until he turns age 18. Therefore, generally speaking a minor has until age 20 to file a general personal injury lawsuit, before the claim is barred by the statute of limitations.

Conclusion

Different type cases will have different statutes. As an Alameda personal injury attorney, I understand the complexity of the statute of limitations for different type claims. As mentioned earlier, claims against public agencies, and governmental entities have their own unique claim system. Medical malpractice action also have their own statutes of limitations. Therefore, it is alway the best practice to consult an attorney as soon as you suspect that an injury has been caused by someone else. However, if a substantial period of time has lapsed since the initial accrual of the claim, then it is extremely important to investigate whether any tolling provisions in the code apply to your claim.

How Much Can I Recover for Medical Bills If I'm Injured in a California Car Accident?

February 11, 2013, by Thomas Lewellyn

Mediccal bill.jpegIf you have been injured in a car accident in California, and the accident was the other driver's fault, you are entitled to recover for the medical bills you incurred as part of your personal injury lawsuit. This seems simple enough. And for many years, this was a simple question. But determining the amount of the medical bill that the other driver is responsible for has become a complicated question due to numerous court decisions which have come down in the recent past.

The law for many years held that a person could recover for the reasonable amount of his medical bills which were related to injuries he received in his car accident. The reasonableness of the bills was generally determined by looking at the face amount of the bill that was received from the doctor, hospital or other health care provider.

Now, however, the reasonableness of the bill is no longer determined by face amount of the bill. One has to see how the bill was paid, whether there was health insurance, whether there were any write off's, whether there was workers compensation coverage, who was responsible for paying the bills, and whether there is a right to any so-called balance billing.

Amount recoverable when injured person is uninsured:

So here's how you figure the medical bills out if you have been in an auto accident. If you have no health insurance, the reasonable amount of the bill, and the amount you are entitled to recover is based on what the health care provider accepts as payment in full. Hospitals will generally accept a reduced amount from the face amount of the bill itself if a person is uninsured. Doctors and ambulance companies will also often reduce their bill if there is no health insurance. However, they may seek payment of the full amount of the bill if you have a personal injury claim pending.

Amount recoverable when injured person has health insurance:

If you are covered by health insurance or workers compensation coverage, the medical bills will often be paid at pennies on the dollar. How much the doctor or hospital reduces their bill depends upon their contract with the health insurance company. So for example, a medical bill for an emergency room visit following a car crash might be $5,000.00, but due to the contract between the hospital and the health insurer, the hospital might only receive $1,000.00 in full payment of the bill. Last year, our California Supreme court, in the case of Howell v Hamilton Meats decided that generally speaking, the injured person can only recover the amount that the medical provider actually accepted as full payment for the bill. So in this example, the injured person would only be able to recover $1,000.00.

Amount recoverable when workers compensation pays the bills:

This same principle was applied in a case this year which involved workers compensation payments. In the case of Sanchez v Brooke, the court had to decide whether the Howell rule of law also applied in a workers compensation setting. The court followed Howell and held that the injured person could only recover the amount that the workers compensation carrier had actually paid the medical providers, not the amount that was billed.

Balance billing and your rights to recover:

On some occasions, the hospital or doctor may not have to accept the payment from the health insurance carrier as payment in full. This is known as balance billing. If that is the case, the injured person is responsible for paying the balance. In these instances, the person would be able to recover the entire amount which was paid to the hospital by the health insurer, plus the amount that the individual is responsible for paying.

As you can see, what was once a simple calculation has become a complicated scenario. Furthermore, all of the above are subject to negotiation and ever changing laws. Knowing which law to apply, and how best to argue the facts surrounding each case can have a tremendous impact on the recovery to the client. As an Alameda personal injury lawyer, I am constantly working with people injured in accidents and helping them get their medical bills paid. Negotiating with medical providers such as hospitals, doctors, ambulance companies, and health insurers to maximize the amount my clients recover is an integral part of my law practice.

An Uninsured Motorist Lesson for California Drivers

February 4, 2013, by Thomas Lewellyn

um image.jpegIf you watch television, you can't help but see a lot of commercials. In recent years the insurance industry has stepped up their game in this area. Their commercials have become quite entertaining. I am not endorsing any one company over the other as an insurer however I do like to compare their commercials. I have to say I do love "mayhem" for Allstate. Actor Dean Winters does a great job as a teenage girl in a pink truck, a guard dog while your house is being burglarized and most recently snow on your roof. The people in the Midwest must really appreciate that one these days. Flo, the Progressive lady played by Stephanie Courtney is most annoying. She must be selling policies though because she has been on the air for a long time.

One of the most recent commercials for Farmers Insurance peeked my interest. It is the one featuring actor J.K. Simmons as Professor Nathaniel Burke. He is leading a group of new adjusters through the University of Farmers, each scene pointing out potential hazards that require insurance coverage. I was surprised to learn that they actually call their training center the University of Farmers! In one of the scenes Professor Burke states that one in seven drivers is uninsured. That must be a national figure because I have seen estimates that close to 25% of California drivers are uninsured. That is a scary statistic.

What's even scarier is how this might affect you if you have been involved in an accident with an uninsured driver and suffered personal injuries. There are a couple of ways this can play out.

Scenario #1: You are injured in a car accident, the other driver is uninsured and at fault but you have uninsured motorist coverage on your own policy. In this case an uninsured motorist claim can be made against your own policy. As an Oakland personal injury lawyer, I have handled many cases like this and my clients were able to recoup their economic losses and get reimbursed for their medical expenses, and compensation for pain and suffering.

Under California law, your policy must include uninsured coverage unless you decline that coverage in writing. This is guaranteed by Insurance Codes section 11580.2. All too often these days I see people decline that coverage as a cost savings. The old saying "penny wise and pound foolish" is really appropriate here.
NEVER DECLINE UNINSURED COVERAGE ON YOUR OWN POLICY. This coverage will protect you if you are injured in an accident in your own car, as a passenger in another car, as a pedestrian or bicyclist hit by an uninsured motorist.

I recommend you match the amount of uninsured protection with the amount of your liability protection. For example, if you have a $100,000/$300,000 policy, make sure your uninsured coverage is the same.

Scenario #2. You are injured in a car accident and the at-fault driver is uninsured. You only have liability insurance and have declined uninsured coverage on your own policy. You will not be able to recover. Therefore your medical care will depend solely on your own health insurance and if you are unable to work as a result of the accident or incur other out of pocket expenses you will not be able to recoup them, unless you can actually sue the other driver and collect against him personally--an unlikely outcome. More likely, the other driver will be without any assets or other means of paying a judgment.

It is against the law to drive without insurance and the adverse driver will most likely have their license revoked but that is of little consolation to you as you struggle to pay your medical costs and may be out of pocket for your economic losses. I cannot stress enough the importance of making sure you have adequate uninsured motorist coverage on your policy. Take the time right now to review your policy and make sure you have the appropriate uninsured insurance protection.

Resources:

One in Seven Drivers Have No Insurance, USA Today, September 12, 2011


Have you suffered a head trauma or concussion in an accident?

January 18, 2013, by Thomas Lewellyn

concussion.jpegIf you've been glued to the TV watching the NFL playoffs for the Super Bowl, you have undoubtably seen brutal hits taken by football players, some resulting in head trauma and concussions. Alex Smith, the San Francisco 49'er quarterback, saw his career sidelined by a concussion. Many players, both professional and at the college level, downplay their symptoms to avoid that outcome. The long-term effects of concussions are still somewhat unknown.

A concussion is a traumatic brain injury where the brain is shaken inside the head. It cause a variety of physical, mental and emotional symptoms including headaches, dizziness, nausea, difficulty thinking clearly, irritability, anxiousness. The effects are usually temporary but the recovery period varies. You can sustain a concussion without losing consciousness. As an Oakland Personal Injury attorney, I have seen many clients suffer concussions in falls and automobile accidents.

So I was intrigued to hear of a research undertaking at Stanford University to try and understand what causes a concussion. The researchers have developed custom mouth guards with sensors that measure how violently a player's head gets whipped around during a game. Throughout this past season, the players wore these mouth guards that recorded and measured the impacts to each players' head and brain when his was hit.

The research has found that helmet- to- helmet impacts aren't the only danger for a player but sometimes equally as dangerous is the force from their heads hitting the ground after a hit. Another factor considered is the multiple directions the head goes from an impact and the position of the head prior to the impact. Many times I have seen clients who have been involved in a pedestrian/vehicle accident sustain injuries from hitting the ground after the impact of the vehicle. The impact of an airbag deployed in an accident can cause complicate the head and neck injuries in an accident as well.

According to David Camarillo, an assistant professor of bioengineering at the Stanford School of Medicine, football is a good model system for studying head injuries because of the high injury incidence, however he expects the basic finding of this research to apply to several fields including transportation.

When a client comes to me after sustaining a head trauma, my first recommendation is to make sure they have been seen by a health care professional immediately. Test such as CT scan or other neurocognitive tests may be necessary although diagnosis can be difficult. Sometimes these test will not be conclusive. I have hired experts in the field of biomechanics to assess the mechanics of the accident, the force of impact on the body. Like the football players, an auto accident can cause the head to move in more than one direction. A biomechanical expert is extremely important in cases with severe head injuries.


Since the symptoms and severity of concussions vary, I spend a lot of time talking with my clients and their families about how this has affected their day to day life.
Your job performance at work may be affected by not being able to think clearly and process information the same as prior to the accident. Maybe you are unable to return to work. This may have financial implications. Relationships can be affected if you suffer depression, anxiety and a range of emotions. Many clients have trouble sleeping.

With the variable of symptoms and recovery, insurance companies many times do not view the seriousness of a post concussion syndrome or TBI (traumatic brain injury) in the same way that they view a broken bone such as a broken leg, arm or spine fracture which can be readily seen on an x-ray or MRI. Conveying the seriousness of the injury is my job as your attorney. I find the best experts to provide evidential analysis to plead your case.

Resource:

Stanford researchers measure impact of football concussions, Stanford Report, October 24, 2012


Help Prevent California Car Accidents This Holiday Season

December 18, 2012, by Thomas Lewellyn

drunk driving.jpegThe holidays are a time for families getting together, seeing good friends, and sharing time with those we care about. Often times, we're together for family dinners, or parties at people's homes. It's important to remember during this festive time, the potential consequences of drunk driving as we are out and about.

The National Highway Traffic Safety Administration shows that 32,885 people were killed in auto accidents in 2010. Thirty one percent of those accidents involved intoxicated drivers. 70% of those accidents involved drivers whose blood alcohol level was above .15 grams per deciliter or higher. In California, the law provides that you are driving intoxicated if your blood alcohol level exceeds .08. Therefore, 70% of those intoxicated drivers involved in fatal accidents had blood alcohol levels which were almost twice the legal limit in California.

When people drink and drive, they are putting their own lives at risk and the lives of others. If you are arrested for impaired driving, you can lose your driving privileges, incur higher insurance rates, pay court fines, attorneys fees, and spend time in jail.

In California, if you are intoxicated and injure someone in an automobile accident, you will be responsible for the personal injuries you cause. A personal injury claim includes payment of the injured person's medical bills, compensation for lost earnings, and for their pain and suffering. These damages may be covered by your automobile liability insurance. However, if your limits are not high enough you may be personally responsible for payment of compensation to the injured person. If you are intoxicated, you may also be liable for punitive damages to the injured person. These are damages over and above those for medical bills, lost wages, and pain and suffering. The damages are assessed as a punishment for driving drunk, with a conscious disregard for the safety of others. If someone dies as a result of one driving while intoxicated, the person would be responsible for wrongful death damages.

So this holiday season, you can help prevent a tragedy by taking these steps. Plan ahead and designate a sober driver before the party begins. If you will be driving, do not plan to drink. Even one too many drinks increases the risk of a crash. If you have been drinking find another way home other than driving yourself. Use a taxi, call a friend, or use other public transportation.

As an Alameda personal injury lawyer, I have unfortunately seen many drunk driving accidents over the years. I have personally seen the tremendous impact such accidents can have on the innocent victims. This holiday season, please take all the steps necessary to keep your holiday, and your loved one's, a safe and merry one.

California Considering New Law On Self-Driving Cars

September 25, 2012, by Thomas Lewellyn

Lexus-Photo1-300x169.jpgI recently saw a fascinating article about self-driving cars. And no, this isn't some far off technology. The technology is here today and is being used by several auto manufacturers. Even Google is getting into the act. It's called robotic car technology.

Google has actually put software on cars right now. Their test cars have driven over 300,000 miles without a mishap. The cars have been on freeways, winding roads, parking lots and congested city streets. Google says they have an interest in reducing the number of accidents and fatalities as a result of auto accidents. Google claims that with this technology, drivers won't be distracted with cell phones, eating lunch while driving etc.

Therefore, Google is sponsoring a bill in the California legislature to allow self-driving cars, and allows the DMV to establish safety standards for these automobiles.

There is a fascinating video showing the car in operation. The "driver" is a man who is legally blind. He "drives" down the road, stopping at stop signs, and even pulling into a drive-through restaurant for a taco. He then takes off eating his taco with both hands as he merrily travels down the road.

As a consumer, I am amazed at this technology. As an Alameda personal injury lawyer, I'm overwhelmed with the legal issues that will be raised by this technology if it evolves and becomes the norm (which I have no doubt it will).

But consider these issues. Suppose the car gets into a crash due to a failure of technology. Who is legally responsible for the property damage and personal injuries caused by such a crash? Will the manufacturer be liable for products liability claims where the product fails to perform as the reasonable consumer would expect?

Under California's current law, drivers have a non-delegable duty to keep their car in good mechanical condition. Therefore, if your brakes fail you and you get in an accident, you can't put all the blame on your mechanic. You are still responsible for any personal injury or property damage claims caused by the mechanical failure. Will the non-delegable duty rule apply to technological failures with your self-driving car as well?

What will happen with our insurance rates? Theoretically, insurance rates are based on people's age, driving records, number of miles driven, and other demographic factors. If the car drives itself, what difference should it make who is driving the car, or where they are driving? If everyone had a "self-driving" car, wouldn't everyone's driving habits be considered equal. You would expect that insurance rates would drop dramatically (but don't hold your breath), and would be the same for everyone.

Can you get a traffic ticket for road violations when you aren't really driving the car?

As you can see, there are lots of unanswered questions that will be presented by this new technology. In the end, the legislature, and the courts will work out these issues. However, the growing pains should be worth the effort, as the public hopefully will end up with a lot safer driving environment.

Resource:

California Considers Giving Self-Driving Cars Green Light, Quest, August 24, 2012

A Positive Approach to Teaching Teenagers Good Driving Skills Which Help Reduce Personal Injuries and Deaths Related to Auto Accidents.

August 15, 2012, by Thomas Lewellyn

teenager.jpegIt's no secret that car crashes are the number one cause of death and serious personal injuries among teenagers. As parents, we are constantly reminding our kids of the dangers of driving, and things not to do when they are behind the wheel. As an Alameda personal injury lawyer, I am always looking for more ways to improve driver training and safety. Now, a major insurance company and experts from Children's Hospital of Philadelphia are recommending a new approach to driver training for teenagers--positive reinforcement. They call the campaign "Celebrate My Drive."

The premise of this campaign is that scare tactics don't work with teenagers. (They all think they're invincible, don't they?) So telling them gory stories at the dinner table about the latest teenage tragedy on the road, or repeating for the umpteenth time the dangers of texting and driving just doesn't seem to phase them. So you might try what is now being recommended in this campaign.

According to a pediatrician at the Center for Injury and Prevention at Children's Hospital of Philadelphia, the best way to adopt positive behaviors is to provide positive reinforcement. "Its much easier to teach somebody to do a behavior, make them feel they can master a behavior," than being negative. Rather than telling the kids what they shouldn't be doing, or what they did wrong, try to give advice in a positive manner.

When taking your kids out for their first driving lessons, if you help you child gain mastery over each driving skill they learn one at a time, this will make them feel much more competent and self-assured behind the wheel. You might start with starting the car moving slowly, then smooth stopping, then driving straight without swerving and so forth. Practicing each skill over and over before moving onto learning the next skill will boost their confidence while enhancing their skill levels.

Once your child has passed the driver's test, the learning shouldn't stop there. The parent should let the child drive with the parent in the car as much as possible (By the way the lowest risk of a teenager having a car accident is when a parent is in the car. On the other hand, when two or more other teenagers are in the car, without an adult, the risk of the teenager having an injury accident increases by fivefold). As you are watching your child drive, reinforce all of the good skills that are being used by the child by complementing them specifically on that behavior. One of my pet peeves is following too closely. So I always complement my kids whenever I see that they have left a nice amount of space between our car and the car in front of them.

With regard to cell phone use, when your child turns his phone off upon entering the car, you can recognize how he/she is respecting the rights and well being of other drivers by turning the phone off and driving safely. There are many ways that we can be creative to positively reinforce our child's good safe driving habits. Just remember the old adage: "you catch more flies with honey than vinegar." It's true with teaching our kids safe driving skills as well.

Resource:

Cheer Up: It's just Your Child Behind The Wheel, NPR, July 30, 2012

Healdsburg California Century Bike Ride: A Fun Ride in the Sonoma Wine Country

July 26, 2012, by Thomas Lewellyn

Screen Shot 2012-07-24 at 2.17.41 PM.pngI just got back from Healdsburg where I participated in the Healdsburg Harvest Century Bike ride this past weekend. This is a beautiful ride which was organized by the Sonoma County Bicycle Coalition. The ride is considered one of "The 7 Greatest Rides on Earth" by Bicycling Magazine. It is an annual ride which I have participated in for the last three years.

The ride started and ended at the Simi winery in Healdsburg. You ride through the Sonoma wine country at your own pace with very little automobile traffic around you. The weather was absolutely fantastic. However, you need to get an early start as the temperatures were in the 90's by 11:00 a.m. (My friends and I were finished our ride by 10:30 a.m. having started at about 7:00 a.m.).

There are four different routes you can take-- a 20 mile, a 35 mile, a 60 mile, or a 65 mile course. The 20, 35, and 60 mile routes are moderate in difficulty, They consist of mostly flat land, some rolling hills, and an occasional steep climb. The highest climb is 492 feet. For the 65 mile ride, the Epic Geyser Ride, the course is more challenging as you have climbs rising to 2421 feet.

There are two rest stops along the way after about 20 miles and then again at 40 miles. The stops have lots of snacks, including fresh fruits, nuts, and drinks to keep you going. There are also ample restrooms. All of the stops also have bike mechanics so if you're having any problems, they are there to help. SAG cars also ride the course to provide mechanical help for these who need it on the course itself. At the end of the ride, there is a wonderful lunch provided at the Simi winery which includes your choice of barbecued chicken, hamburgers, or wood fired pizza. Wine and soft drinks were also available.

As an Alameda bicycle accident lawyer and avid cyclist, I appreciated how the ride was safely organized. All routes were well marked, with good maps and directions given to all riders. The riders were required to wear helmets which is a must to prevent head injuries from bike accidents. The routes which were chosen were well paved, with little traffic to provide the ultimate in riding satisfaction and safety. The option of four different routes makes this a ride for any level of rider.

I recommend going up and spending a few days with friends or family and then participating in the ride together. I was fortunate enough this year to go up with my wife, and three other couples. We all stayed at a lovely vineyard overlooking the Dry Creek Valley, which includes numerous wineries including the Raymond Burr Winery. On our first night we ate at a great restaurant in Geyserville, Diavola's Pizzeria & Salumeria. All of the individual pizzas are fantastic. I enjoyed the "inferno" which has spicy Italian peppers, mozzarella, roasted red peppers, and tomato basil. For desert we had s'mores which you have to try. It's a combination of chocolate ice cream, with home made graham crackers, chocolate, and fresh made marshmallows served with a small metal pot of hot coals on the side so you can make your own s'more right on the spot!

My friends and I look forward to riding in the Harvest Century Ride again next year. If you have any interest in biking, wines, or just a good old time with your friends, I highly recommend it.

Resource:

26th Annual Healdsburg Century Ride 2012