Oakland Personal Injury Lawyer Blog

Imagine traveling down Highway 880 in the evening and having a car speeding at 100 m.p.h. crash into you and then attempt to flee the scene. That's exactly what happened to a pregnant woman and her child in Oakland on April 20, 2011. Motorists reported seeing a 2005 Mercedes speeding at over 100 m.p.h. crash into the woman's car causing it to rollover. The driver of the speeding vehicle then fled the scene, but was later apprehended by the California Highway Patrol.

The odds that this hit and run driver was uninsured are high. Statistics show that there are over 1.3 million uninsured drivers in California alone. Fortunately, you can do something to protect yourself against the uninsured driver.

California law requires that insurance companies include uninsured motorist coverage with every automobile insurance policy sold in the State. The only exception is where the person buying the insurance agrees in writing not to purchase the uninsured motorist coverage.

• So how does uninsured motorist coverage work?

It applies to any accident where the at fault driver carries no liability insurance. It also applies to hit and run accidents, where the at fault driver has not been caught. What many people do not realize is that their uninsured motorist coverage will even protect them if they are in a bicycle accident or are injured as a pedestrian by an uninsured driver.

• What is covered by uninsured motorist?

An insured can recover all damages for personal injuries that he or she would have been able to recover against the at fault party up to the full amount of their coverage. This includes compensation for medical expenses, past and future, loss or earnings, past and future, loss of earning capacity, and for pain and suffering associated with one's injuries.

• How much is covered?

The insurance company is liable for all damages up to the limits of the insurance coverage. By California law, the minimum amount of coverage for uninsured motorist is $15,000.00/$30,000.00. This means that the most the insurance company would pay out on any uninsured motorist claim would be $15,000.00 to a single individual, or $30,000.00 for the entire claim if more than one person were injured in the automobile accident. $15,000.00 is a very low amount of coverage. Therefore, I would strongly encourage people to obtain uninsured motorist coverage in much larger amounts to protect themselves fully in the event that they are injured by an uninsured driver.

• Bad Faith Insurance Tactics:

Your insurance company owes you a duty of good faith and fair dealing to settle your claim promptly and fairly once liability is clear. This means that your insurance carrier has to pay you full compensation for all of your injuries and economic losses. What can happen, unfortunately, is that some companies will try and low ball their own insured with unfair offers, or delay in paying claims promptly.

As an Oakland uninsured motorist lawyer, I have represented many clients over the years who have had tremendous battles against the own insurance companies, who refused to pay what the client was legally entitled to. In a recent case involving a Tracy hit and run driver, the insurance company tried to argue that my client's car was not hit by a hit and run driver, and that the client was making a fraudulent claim. After two years of litigation, the insurance company ended up paying my client the full policy limits of $250,000.00. A second lawsuit was then brought against the insurance company for bad faith in the way it delayed and unfairly defended the claim. The insurance company then ended up paying an additional $250,000.00 to my client to settle the bad faith claim.

If you have been injured in a hit and run car accident, or by an uninsured driver, you should be fully aware of all of your rights against your own insurance company. As with any personal injury claim, you should know all of the do's and don't of dealing with insurance companies and adjusters to avoid making a critical mistake which can deflate the value of your claim.

Resource:

Oakland Tribune, Two arrested after violent I-880 hit-and-run crash near Oakland, April 20, 2011

San Francisco Giant's fan, Bryan Stow, attended opening day at Dodger Stadium on March 31 2010. As he was leaving the game, he was brutally assaulted in the parking lot. He suffered a fractured skull and serious brain injuries after he was repeatedly punched and kicked in the head by assailants who fled the scene. Witnesses reported that the assailants yelled slurs against the Giants as they pummeled the man. Following the attack, Bryan was hospitalized at the Los Angeles County-USC Medical Center where he has been in a coma since the attack.

It seems to me that sporting events are increasingly becoming the site of attacks like this. Whether it's a Dodger-Giant game in San Francisco or a Raider-49er game in Oakland, fan violence appears to be on the rise. What used to be good natured ribbing between rivals fans at sporting events, now often turns violent. The question is, what is being done to prevent attacks like that on Bryan Stow and others?

The law is clear in California. Any business owner has a legal duty to keep his or her premises safe for its patrons. This includes a duty to protect customers from criminal attacks if such attacks are reasonably foreseeable. Business owners must take actions commensurate with the known frequency of criminal activity (See Delgado v Trax Bar & Grill). If there has been a significant amount of criminal assaults and/or other criminal activity, then the business must take reasonable steps to prevent such attacks. Therefore, the Dodgers and all other sports franchises and the operators of the facilities where the games take place must take reasonable measures to identify criminal activity and reasonably respond to such activity before someone is seriously injured, like Bryan Stow. When they do not take reasonable safety measures, they can be held legally responsible for the personal injuries sustained by their patrons.

This same legal principle applies to all business owners, not just sports teams. Recently, a jury held Nordstrom's liable for personal injuries suffered in a criminal attack which occurred in one of their stores in Bethsada, Md. In 2008, a woman entered the store armed with knives and began chasing shoppers. Two shoppers were stabbed multiple times and sued for their personal injuries. They argued at trial that eight minutes passed from the time the attacker entered the store to when they were injured and that during this time, Nordstrom employees made no effort to warn shoppers or evacuate the store. Due to the failure to warn the customers of the attacker in the store, the jury awarded $1.6 million dollars to the two victims.

As an Alameda personal injury lawyer, I have represented individuals who have been seriously injured in criminal attacks at various business, including bars, restaurants, bowling alleys, gas stations and other businesses. Each case is unique. Success in litigating these type cases depend heavily on a thorough investigation of not only what happened in the particular case, but also into what the business owner knew about before the attack ever took place. In cases where there was considerable criminal activity and the business owner failed to take reasonable steps to protect his customers from these dangers, the owners were held responsible for these injuries.

Resources:

CBS, Beaten Giants Fan Emerging From Coma, April 14, 2010

Washington Post, Jury orders Nordstrom to pay $1.6 million to Bethesda stabbing victims, April 18, 2011

As an Oakland personal injury lawyer for over 27 years, I have seen how simple mistakes when dealing with insurance adjusters can cost client auto accident victims dearly. I have written a brochure to help people who have been involved in accidents, entitled "8 Critical Mistakes that Can Cost You Thousands of Dollars If You've Been Injured in an Accident." I previously blogged about the mistake of signing medical authorizations. Today, I would like to discuss the number 1 mistake people make, which is giving written or recorded statements to insurance adjusters.

Frequently, within days and sometimes within hours of a car accident, insurance adjusters for the other person's insurance company will give you a call to discuss your claim. Invariably, in that initial conversation they will ask for a recorded statement. It is always a mistake to agree to this. Adjusters may say they need it if you wish to settle your claim. Or they may be more brazen and question whether you have something to hide. They will say anything to coax you into giving the statement. You don't have to give it.

What is the problem with cooperating and giving the recorded statement? There are several. First, the insurance adjuster has a distinct advantage over you in terms of knowledge about claims. For most people, giving a statement to an adjuster is a rare event; but for the seasoned adjuster, they have taken literally hundreds if not thousands of statements. Therefore, they know what information is helpful to their position and harmful to yours, and you don't. Second, insurance adjusters will often ask questions about things that they are not entitled to know about. Without proper understanding of the law, the innocent victim has no way of knowing what information the insurance company is or is not entitled to. Next, questions about how an accident occurred or the nature and extent of injuries, can be vague or ambiguous. You may be thinking the adjuster is asking you one thing, when in fact they are really asking you something else. Or you may give an ambiguous statement that is later twisted in its meaning so that the words are used against you. Or you may simply make a mistake in your statement, which you later realize but it is now too late to correct.

The bottom line is there is no upside potential to giving a statement, written or recorded, to an insurance adjuster, and there is plenty of downside. Once the statement is given, it can never be retracted. You can later try to explain what was meant or why you said a specific thing in giving the description of the accident or a description of your injuries, but the insurance company will continually harken back to what you said within days of the accident.

If you have been injured in an auto accident which was caused by someone else's negligence, you have a legal right to file a personal injury claim. Legally, you are entitled to compensation for all of your medical bills, those incurred and those likely to occur in the future, all of your lost earning, past and future, and full compensation for the pain and suffering you have experienced. In the case of serious injuries, the pain and suffering may be a permanent, life long condition. It is truly a tragedy when one who is seriously injured in a car accident does not receive full compensation for these losses due to simple mistakes, which were made when giving a statement to an insurance company, before contacting a personal injury attorney.

Many California insured drivers are surprised to learn that their underinsured motorist coverage does not cover them to the full extent of their coverage. So, for example, when you purchase a $100,000.00 worth of under insured coverage, you will never, under any circumstances, recover the full amount of that policy. This is because California insurance law grants the insurance company a set-off or deduction for any money the injured person received from the underinsured driver.

Here is how an underinsured motorist claim is currently handled in California. First, one must have underinsured motorist coverage which has higher limits than the at fault driver who caused the accident. Second, their personal injury claim must be worth more than the limits of the other driver, and one must settle their personal injury claim against the at fault driver for the full amount of that person's policy. Third, they make a claim for the full amount of their damages, up to their underinsured limits, against their own policy. And finally, and here is where the inequity arises, the insurance company deducts from their claim any monies the injured person received from the settlement with the third party.

Here is how the program worked in a recent San Jose auto accident case where I represented a car accident victim in a personal injury claim. My client had a policy with $100,000.00 of underinsured motorist coverage. He was involved in a frontal collision with another driver. The at fault driver had liability limits of $50,000.00. As a result of the car crash, my client herniated a disc in his low back. He required surgery to repair the disc in his back and missed several months of work. The value of his personal injury claim was clearly worth more than $150,000.00 due to the pain and suffering he endured, his lost earnings, and medical expenses which were over $80,000.00. The case was settled with the other driver for the full amount of his limits of $50,000.00. Next a claim was made against my client's underinsured motorist policy. Due to the extent of his injuries and damages, fairness would dictate that he was entitled to the full amount of his underinsured coverage, i.e. another $100,000.00. However, he was not entitled to the full $100,000.00, only $50,000.00. This is because his insurance company was legally entitled under existing California law to take a full set off for the amount received from the other driver.

This is unfair and must be changed. Whether someone purchases $100,000.00 worth of coverage, or any other amount of coverage, the insured expects that they will be covered up to the full amount of the coverage. Under California law as it now exists, however, the insurance companies never have to pay the full amount of the coverage, because there is always a settlement with the third party, which always entitles them to their deduction.

The California legislature and Governor Brown have an opportunity to help policyholders and correct this inequity. There is currently a bill before the Assembly, AB 1063, which will take away the insurance companies' right to the set-off. This is the law in over half the States. As an Alameda personal injury lawyer, who has personally seen how the current law has resulted in great hardships and unfairness to California car accident victims, I strongly support the passage of this bill.

Resource:

AB 1063