Oakland Personal Injury Lawyer Blog

It has been popular for politicians, especially those on the right, to advocate for the placement of caps on awards for personal injury claims, including medical malpractice actions. Most recently, Republican presidential hopeful, Rick Santorum, says that if elected, he would push to limit payments to victims of medical malpractice, which he claims unnecessarily drives up health insurance costs. What Santorum doesn't push is that fact that his wife brought her own medical malpractice case against a Virginia chiropractor in which she claimed damages of $500,000.00.

The Washington Post has reported that in 1999, Santorum's wife had severe back pain following the tragic death of their prematurely born son, who died the same day as the delivery. Ms. Santorum then sought the help of a chiropractor whom she claimed negligently treated her and caused her to sustain a herniated disc. Suit was filed and the case went all the way through a jury trial. Rick Santorum testified in the case about the pain and suffering that his wife endured as a result of the herniated disc. The jury found in favor of the Santorum's and awarded damages in the amount of $350,000.00. The judge later reduced the award to $175,000.00 claiming that the juries assessment of damages was excessive. The Santorums unsuccessfully attempted to seal the records pertaining to the lawsuit.

As an Oakland personal injury lawyer, I have to ask how Rick Santorum can campaign to limit the rights of others, when it was perfectly fine for he and his wife to use that very same system that is designed to protect those who have been injured by the negligence of doctors. Then, he apparently made efforts to make the whole lawsuit secret in order to prevent the public from knowing about the case. If he had had his way, his wife would have recovered her judgment in secret, while he continued to advocate for the limitation of rights of victims of medical negligence.

What is tragic is not so much the obvious hypocrisy here, but the real unfairness that caps on damages cause real people every day. In California, we have had limitations on damages since 1975. At that time the insurance industry claimed that the so-called medical malpractice crisis was driving insurance rates up and doctors out of the state. The insurance companies convinced the legislature to limit recoveries for general damages for pain and suffering in medical negligence cases to $250,000.00. That has been the limit in California since that time. But has it lowered the cost of insurance for doctors?

According to the Americans for Insurance Reform, in the year 2000, 25 years after the passage of the initial limitations of damages in California, rates here are only slightly less than that of the rest of the nation. Many studies conclude that the cost of liability insurance for doctors is more directly related to how insurance companies' investments are performing, rather than on the amount that is paid out in claims.

Recently, a plaintiff was awarded $6,000,000.00 in a wrongful death action against a doctor Following the 1975 law, the judge in the case reduced the general damages portion of the award to $250,000.00. The wife appealed the case, noting that inflation had eroded the value of the 1975 cap of $250,000.00 to a present value of approximately $58,000.00. Unfortunately, she lost her appeal and the $250,000.00 cap on medical negligence damages remains the law in California (See Stinnett v Tam).

The effects of these caps are pernicious. People who have been injured by the negligence of healthcare professionals often sustain life long, permanent medical problems or death. This cap then encourages the insurance carriers for the doctors to try these cases before juries, because they know that their exposure is limited. This increases the costs of prosecuting and defending these cases, and discourages many people who have been injured by medical negligence from pursuing these claims. So if people like Rick Santorum want to limit damages in personal injury cases or medical negligence cases, they should at least be straight with the public about how these caps only benefit the insurers and how they severely restrict the rights of the public. A cap that has a value of $58,000 in 1975 should be eliminated-not applauded.

Resources:

Santorum pushed to limit malpractice awards but sought larger payout for wife, Washington Post, January 27, 2012

The California Supreme Court recently dealt a big blow to California consumers and personal injury victims. This follows a trend of decisions which favor large corporations and insurance companies over the rights and needs of the individual. It seems whether its in politics or in the court, the common man and woman are not faring very well in modern times.

The case is Howell v Hamilton Meats & Provisions. It involves a personal injury claim which arose out of a collision between a truck and another driver. The truck, being driven by an employee of Hamilton Meats & Provisions made an illegal U-turn causing the traffic accident. The driver of the other car, Rebecca Howell, suffered serious neck injuries which required spinal fusion surgery.

Ms. Howell protected herself by purchasing health insurance. She incurred medical bills in the amount of $190,000.00. Her insurance company had an agreement with the hospital and other health care providers so that they only had to pay $60,000.00 to pay the bills in full.

Under California law, and the common law throughout the United States, when someone is injured as a result of the negligence of others they are entitled to recover as damages the reasonable amount of their medical bills, in addition to other damages such as pain and suffering, lost earnings, loss of earning capacity etc.

The question in this case was what is the reasonable value of the bills. Is the reasonable value the amount billed by the health care provider or is it the amount the insurance company actually paid to extinguish the bill? The California Supreme Court ruled that the injured party may only recover the amount that her insurance company paid, i.e. $60,000.00, not the amount that was billed by the hospital and doctors, $190.000.00. Thus, Ms. Howell's damages were reduced by $130,000.00.

The ruling does not reflect the economic reality of why these bills are reduced. And, therefore, the ruling does not permit the injured person to recover the full value of their medical bills. What the court addresses in its decision, but fails to fully appreciate, is that the hospitals and doctors are not reducing their bills out of the goodness of their hearts. The bills are reduced because these healthcare providers are receiving other benefits, such as increased business from the insurers, reduced costs in the form of stream lined processing of claims, and other cost saving measures. Therefore, the reasonable value of the medical bill incurred is closer to the full billed amount than the reduced amount that the insurer actually pays.

Additionally, the court fails to address the everyday reality of how trucking accident claims, such as this, are settled. Invariably, the health insurer who paid the medical bills has a lien against any third party claim, such as auto accidents, slip and falls, or any general negligence claim where someone has filed a personal injury lawsuit or claim. This means that the health insurer has a legal right to be fully reimbursed from the personal injury claim for the amount it has paid out. So in Ms. Howell's case, she will receive nothing for her medical bills--the full $60,000.00 will most likely go to her health insurer. The difference between the amount billed, and the amount received, $130,000.00 will go to the benefit of the person who made an illegal u-turn and caused her a serious disc injury resulting in spinal fusion. Where is the justice in that?

As an Alameda personal injury attorney, I have observed that for many years, starting in the 1950's through the 1970's California courts were stalwarts of protecting the rights of the injured. They were leaders in developing the law in products liability and insurance bad faith law among other areas. More recently, the California Supreme Court cases have swung in the opposite direction. More and more, the decisions favor large corporations, insurance companies and the powerful. The Howell case is just one more in a line of such cases. One can only hope the the California legislature will correct this injustice.

Resource:

CA Supreme Court tort case ruling helps insurer, San Francisco Chronicle, August 19, 2011

When summertime comes, we tend to go to amusement parks. Whether it's the Santa Cruz Boardwalk, Raging Waters in San Jose, Six Flags in Vallejo, or Disneyland, going to amusement parks and water slide parks during the summertime is about as American as apple pie. A recent California Appellate case elaborates upon your legal rights if you have suffered a personal injury at an amusement park.

The case is Nalwa v Cedar Fair LP. The facts involve a woman who was riding on a bumper car at California's Great America Amusement Park in Santa Clara, California. The woman, who was a physician, was riding the bumper car along with her children who were in other cars. During the course of the ride, her car was struck head on by another bumper car and during the collision she broke her wrist.

The evidence in the case showed that the defendant owned and operated four other amusement parks throughout the country. At the other parks, the defendant configured the traffic so that all the cars traveled in one direction to help prevent head on collisions. There was evidence that the defendant knew that the one directional travel helped to reduce injuries. However, at the Santa Clara park, unidirectional travel was not employed. Instead, employees of the park were told to warn riders after a head on collision to stop that activity.

The injured doctor brought suit for personal injuries against the owners of Great America claiming that the defendant was a "common carrier" and that it was negligent in the operation of its bumper car operation. The defendant filed a summary judgment motion to have the case dismissed on the grounds that by getting on the ride the doctor "assumed the risk" of getting injured by getting on the ride. Although the trial court agreed with the defendant's position, the California Court of Appeals reversed the decision of the trial court and held that the amusement park owner owed the injured doctor a duty of care to operate its rides in a reasonably safe and prudent manner.

In upholding the doctor's right to sue the amusement park for the personal injuries she sustained, the court rejected the idea that by merely getting on a ride she assumed all risk of injury. It cogently observed that people do not go to amusement parks expecting to be injured. Common sense tells us that breaking a bone is not a natural or expected consequence of getting on a ride. The court stated, "The very reason we go on amusement park rides is because we seek the illusion of danger while being assured of a ride's actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt."

Amusement park ride injuries are not uncommon. Although data is limited, because reporting of injuries at parks is often not required by law, the Consumer Product Safety Commission noted that in 1996, there were over 8,000 amusement park injuries nationwide.

As an Alameda personal injury lawyer, I have handled many personal injury cases against amusement parks over the years. Because the rides often involve high speeds, the injuries can often times be severe. Many times the amusement park owners will argue, as was done here, that the patron who paid money to enter their facility, assumed any risk of injury that they suffered on the ride. As the court rightly concluded here, that is nonsense. People go to these parks assuming the rides are safe for use. They don't go expecting an injury. Alternatively, the parks will also have riders sign waivers or releases of responsibility to try insulating themselves from liability if their customers are injured. Frequently, however, these types of waivers are held invalid as being against public policy.

Resources:

California Research Bureau, Safety and Oversight of Amusement Rides in California, August 1997

When a married person is seriously injured, the non-injured spouse often pays a large toll as well. While the couple may still love each other just as much, there is no doubt that the marital relationship has been harmed. In the law, this is what as known as a loss of consortium claim. A recent California appellate court decision reaffirms this important legal right of the uninjured party to sue for loss of consortium.

In the case of Mealy v B-Mobie, Inc., the Mealys had been married for over fifty years. Mrs. Mealy was afflicted with polio in 1952 and was confined to a wheelchair after that. Nevertheless, she was able to drive a car and work outside the home. She and Mr. Mealy had five children together and she worked over thirty years as a counselor for Catholic Social Services. After she retired, she began to lose strength in her arms and her mobility worsened. In order to get in and out of bed, the Mealy's used a Guldman lift system. In 2008, while using the system, a belt broke causing Mrs. Mealy to fall to the floor and break her hip.

Following the fall, Mrs. Mealy filed a products liability lawsuit against the manufacturer of the lift for her personal injuries. Mr. Mealy joined in the suit claiming a loss of consortium. The evidence at trial showed that after the fall Mrs. Mealy required help with almost every aspect of her daily living. She was unable to groom herself as she could before her injury; she was now incontinent, and she was unable to do other household chores and participate in leisure activities that she could do before. Her husband now became her round the clock caretaker.

At trial Mr. Mealy testified that his relationship with his wife was as strong as ever. In fact he testified he loved his wife more than ever. Incredibly, the defense in this case tried to use this testimony to argue that there were no damages to Mr. Mealy and therefore no basis for a loss of consortium claim. The defendant argued that since the loss of consortium was not complete, but only partial there should be no recovery at all for Mr. Mealy's loss.

The Second District of the California Appellate court soundly rejected this argument. The court wrote that "consortium" refers to the non-economic aspects of the marriage relation, including conjugal society, comfort, affection, and companionship. It includes sexual relations, moral support and household services. The court noted that moral support is an important part of the claim. In this case, the evidence clearly showed that Mrs. Mealy suffered a serious hip fracture that completely changed her life, and thus impacted her husband as well. The fact that he still loved his wife as much as he did before the injury should not, and did not bar his claim.

As an Alameda lawyer specializing in personal injury and wrongful death claims, I see claims where spouses have suffered life changing injuries such as traumatic brain injury injuries or spinal cord injuries. In these difficult cases, the marriage is often tested. The impact on the relationship is real, and as this California case holds, it is compensable--even if the parties still love each other!!!

Resources:

Mealy v B-Mobile, California Court of Appeal, Second

As an Oakland personal injury lawyer, we often see clients who have been seriously injured in truck accident collisions. Two new legal cases involving truck accidents illustrate the duty of care that professional truck drivers owe to the motoring public. Both cases involve accidents where the truck drivers negligently parked their vehicles causing serious personal injuries and death.

In the case of Cabral v Ralphs Grocery Company, the California Supreme Court recently ruled that a truck driver can be held responsible for personal injuries he causes by negligently parking his truck on the side of a freeway. The case involves a motorist who was driving down Highway 10 when he lost control of his vehicle and slammed into the rear of a tractor trailer parked on the side of the roadway. The driver of the truck had stopped on the side of the highway to have his lunch. He was parked in an emergency only parking area.

The driver of the vehicle died in the collision. His family then brought the subject wrongful death case against Ralphs Grocery Company alleging that the truck driver was negligent in the manner in which he parked his truck on the side of the road. The wrongful death case went all the way to trial and the jury found that the driver was 90% at fault and the truck driver 10% at fault in causing the accident. Ralphs Grocery then appealed from the judgment against it.

Ralphs Grocery, which employed the driver, argued that it owed no duty of care to the decedent driver. Another words, Ralphs tried to argue that it could park its trucks wherever it wanted without any repercussions. The Supreme Court felt otherwise. It held that a truck driver must use reasonable care in choosing when and where to stop alongside of a freeway. In doing so, it upheld a jury verdict in favor of the family of the decedent.

In another recent truck accident case, the California Appellate Court, Fourth District, ruled that a professional truck driver can be legally responsible for personal injuries caused by the way a truck driver parks its tractor trailer, even if the truck is legally parked. In the case of Lawson v Safeway, the truck driver in question parked his tractor trailer near an intersection in a legal parking spot. The manner in which he parked the truck however interfered with the vision of drivers who were approaching the intersection. As a result, a motorist pulled up to the intersection but could not see an approaching motorcyclist because the truck obscured his view of oncoming traffic. Due to his obstructed line of site, he collided with the motorcyclist causing him severe personal injuries. In that case, the jury found that the Safeway truck driver was 35% responsible for the damages caused to the motorcyclist.

The general rule followed in these both of these truck accident cases is clear. All drivers have a legal duty to exercise reasonable care for the safety of others in the operation of their trucks. In these two cases, the juries found that the truck drivers acted unreasonably in the manner in which they parked their large vehicles. In one case, the tractor trailer was an unnecessary obstruction on the side of the highway. In the other case, the trailer was an unsafe sight obstruction along the side of the road. Where truck drivers park or operate their large tractor trailers in an unreasonably unsafe manner, the law will hold them responsible for personal injuries and wrongful deaths caused by that conduct.

Resources:

Cabral v Ralphs Grocery Company

Lawson v Safeway

A Fresno jury recently awarded 5.7 million dollars to Manuel Orenelas, a man who was seriously injured in an auto accident in 2009. The accident occurred on Highway 168 near Shaver Lake. The man had stopped to put snow chains on his vehicle. He was legally parked on the side of the road completely out of the traffic lane. A utility vehicle, driven by a Southern California Edison employee, was driving without chains and too fast for the conditions when he lost control of his vehicle and ran into the man's van.

Mr. Ornelas seriously hurt his back and pelvis in the accident. The former marathon runner now needs a cane to walk. He can't control his bowels, and cannot sit for long periods of time. He can't pick up his children, mow his lawn, or even push a grocery cart. He incurred medical bills of nearly $160,000.00. Due to his personal injuries, he can't work and he lost $1.2 million in past and future earnings.

Before the trial, Southern Edison only offered him $1.7 million, barely enough to cover his medical bills and lost wages. Then during the trial they raised their offer to $5 million, which was rejected by the injured man. The Southern Edison lawyer told the jury that with therapy Mr. Ornelas could return to work. He told the jury "it was an unfortunate accident."

What is "unfortunate" is the way that Mr. Ornelas was treated by this utility company. They made a minimal offer to settle his case considering the serious injuries to his back and pelvis, and the enormous financial losses he sustained and then forced him through a grueling jury trial. In the trial, they brought in their experts to talk about how he could return to work with proper therapy. Then, when they knew their ship was sinking, they finally offered the man 5 million dollars during the middle of the trial. Why wasn't this sum offered much earlier, long before a jury trial?

As a personal injury lawyer in Alameda for over 27 years, I have seen this pattern repeated over and over. Large companies and insurance companies drag the injured person through stressful litigation, make a low ball offer, and then when all is said and done, throw up their hands, and tell the jury, what an "unfortunate accident" it was. The jury never knows what happened behind the scenes and how the company tried to shirk its financial responsibility by making unfair, low offers, putting extreme financial pressure on the injured party to settle. I am glad to see that justice was done for Mr. Ornelas.

Resource:

Fresno Bee, Clovis couple gets $5.7m in utility-truck crash suit, March 1, 2011

A California Appellate Court has ruled that a jury may decide whether Johnson and Johnson should be liable for punitive damages for injuries and deaths associated with its drug Motrin (ibuprofen).

The case involves a fifteen year old boy who had a severe reaction to the over the counter drug, motrin. Motrin is a non-steroidal anti-inflammatory drug that may be purchased without a doctor's prescription. The drug may cause a serious and sometimes fatal skin disease knows as Stevens-Johnson Syndrome (SJS) and a variant of that disease, Toxic Epidermal Necrolysis (TEN). The symptoms may include shedding of skin, blisters, hives, facial and tongue swelling, and skin pain. The boy claimed in his case, that the manufacturer of the drug failed to warn him of the risks and dangers of developing these diseases.

The young man had presented evidence to the court that the manufacturer knew of these risks but failed to warn consumers. He showed that Johnson and Johnson warned of these risks in foreign countries, but not here in the United States. In Germany, the company warned "of the side effects associated with this OTC product of rare but serious skin reactions, such as reddening and blister formation ... which is bullous EM/SJS."

In California, a drug manufacturer is responsible for the content of its label at all times. It must ensure that its warnings adequately warn of dangers associated with its drug as long as the drug is on the market. When there is a failure to warn of these dangers, the manufacturer can and should be held liable for the person injuries caused by its neglect.

As an Oakland personal injury lawyer, I applaud the court's ruling. When manufacturers do not inform the consumer of the risks associated with its products, which it knows about and which can cause severe personal injuries, juries should be empowered to assess punitive damages to prevent such reprehensible conduct from recurring.

Resource:

Johnson and Johnson v Superior Court, Court of Appeal Second District, January 20, 2011

As an Alameda personal injury lawyer, I am constantly reviewing California case law as it pertains to consumer safety and the driving public. Sport utility vehicles have a spotty safety record and can be dangerous if they have a high center of gravity and if not adequately protected against rollovers. Recently, the California Court of Appeals upheld a judgment against Land Rover arising out of a 2003 rollover highway accident.

In 2003, Sukhsagar Pannu was driving his 1998 Discovery, manufactured by Land Rover when he was involved in a rear end collision. The collision caused Mr. Pannu's Discovery to roll over several times, finally coming to rest on its roof. The roof crush caused a spinal cord injury to his neck, resulting in his being paralyzed.

At trial, evidence was produced that the Discovery would tip under evasive steering maneuvers, but with slight alterations to the track width of the vehicle and center of gravity, the rollover resistance would be greatly improved. There was also expert testimony that by adding steel tubing and foam filling at a cost of $116.00 per vehicle, the crush resistance of the vehicle was dramatically strengthened. As a result the trial court found Land Rover responsible for Mr. Pannu's injuries and awarded compensation in the amount of $21 million dollars.

California products liability laws hold auto manufacturers liable if their vehicles fail to meet consumer expectations as to safety or if the manufacturer fails to warn consumers as to safety defects inherent in their products. Verdicts based on the product liability laws, such as that against Land Rover, send a message to the auto industry: Public safety should come first when it comes to designing and manufacturing vehicles.

Resource:

Pannu v Land Rover North America, Inc. et. al, California Court of Appeal, Second Appellate District, January 19, 2011

As a father of four children, it seems that I am constantly having releases of liability thrown in my face when my kids participate in activities as mundane as playing basketball, or going on school activities, etc. You have probably seen the releases: In big bold print (or sometimes not such big print) they will state something like "This is a Release/Waiver of Liability" The activity your child is participating in has inherent dangers. If he or she is injured, you promise not to sue us, etc. The question often arises whether these releases are enforceable.

A recent California case addressed this in the case of an equestrian accident resulting in the death of a 17 year old girl. The girl, according to the wrongful death suit, was permitted to participate in a competition with an unfit horse, which had recently suffered serious injuries, that were not reported to the parents. The court held that concealing this information and allowing the child to ride an unfit horse in the competition could equate to gross negligence. As a matter of public policy, waivers will not prevent lawsuits where there is gross negligence and therefore the court allowed the matter to go to trial.

As an Oakland personal injury lawyer, I see more and more of these waiver agreements where there have been personal injury accidents. You often see them in contracts for gym and fitness memberships, for sporting events, or children's activities. Each case involving a signed waiver or release of liability must be carefully scrutinized. There is a trend among the courts to enforce these agreements, but they can be defeated if the agreements violate public policy, are vague and ambiguous, or are not clear and conspicuous in the paperwork.

Resource

Eriksson v Nunnink, January 10, 2011

When you send out an email to a friend, your spouse, or even your lawyer, who has the right to see those emails? These emails may not be as confidential as you think.

In a recent California appellate case, Holmes v Petrovich Development Co., an employee sued her employer for sexual harassment and a hostile work environment. While working for the employer, she sent email to her attorney about the circumstances of her case. Normally, communications with your lawyer are protected by the attorney client privilege. That is what the employee claimed in this case. However, since her emails were from the company's computer, and the company had an express policy that such emails were not confidential, the court ruled that the emails to her attorney were not protected. It noted that if the same emails had been sent from her home computer, the communications would have been protected.

In another case, a corporation was held to waive its attorney client privilege when it distributed its emails intended for its attorneys to many different sources who were not attorneys (Muro v Target, 2007).

As an attorney representing personal injury victims in the Oakland and Alameda area, I am concerned about privacy issues such as this and the use of the internet in general. We seem to be losing our privacy bite by bite, and as the internet expands it will only worsen. The teaching point here, however, is to never communicate with your lawyer by email unless it is from your own personal computer, and certainly not the computer at work.

Resource:

California Court of Appeal Decision, Holmes v Petrovich Development Co., January 13, 2011

Muro v Target, November, 2007

Our California First District Court of Appeal recently decided that a professional truck driver may be responsible for personal injuries caused by the way he parked his truck. This is true even if the truck was legally parked. The case is Lawson v Safeway Inc.

The facts of the case are as follows: A large Safeway tractor trailer truck was parked legally at the side of the road on Highway 101 close to an intersection near Crescent City. The trailer blocked the view of drivers attempting to cross the intersection and turn onto the highway. The court held that the Safeway truck driver owed a duty of care to park his trailer in such an manner as to not increase the risk of harm caused by motorists using the highway. Since the driver was employed by Alameda based, Safeway Inc. at the time, Safeway was responsible under the legal doctrine of vicarious liability.

As an Oakland personal injury lawyer, I have represented many personal injury clients who were victims of truck accidents over the years. These cases are particularly interesting and challenging as there are many safety standards and regulations which apply to truck drivers which do not apply to ordinary motorists. Usually we must retain truck driving experts to testify about the standard of care with respect to driver's activities and what was reasonable under the circumstances. For example in the Lawson case, expert testimony was necessary to show that a professionally trained truck driver would not have parked his trailer in such a manner as to effect the sight distance of those using the nearby intersection.

Frequently, I see professional truck drivers double parking, parking with their trailers blocking drive ways and interfering with my ability to see the roadway clearly. I am glad that the appellate court has recognized that when these drivers do interfere with driver's safe use of the road, the can be held legally responsible for the injuries they cause.

Resource:

Lawson v Safeway Inc. December 30, 2010

An increasing number of Bay Area hit and run and uninsured motorist accidents points out the importance of uninsured motorist coverage. Most recently, an Oakland pedestrian was killed. In San Jose, a bicyclist was hit by a hit and run truck driver.

Uninsured motorist claims that would apply to cases like these have their own set of rules which are covered by Insurance Code Section 11580.2. Within those rules however are numerous traps for the unwary.

A recent California appellate decision, Blankenship v Allstate Insurance points out one of those traps which deals with the statute of limitations. In an uninsured motorist case, a claimant must demand arbitration or file a lawsuit against the uninsured driver within two years of the date of the accident or the claim will be barred by law. The case holds that this rule applies to minors as well as adults. Therefore, minors who are injured by hit and run drivers or uninsured drivers must have their claims settled or demand arbitration within two years of the date of their accident. Unlike, civil cases, the statute of limitations is not tolled until they turn age 18.

Uninsured motorist coverage is required in every automobile liability policy issued in the state of California, unless waived in writing. As an Alameda personal injury lawyer, I have seen many instances, in both hit and run, and uninsured accidents, where mistakes have been made by claimants because they were not familiar with the peculiar rules which apply only to uninsured motorist claims. It is vitally important that anyone involved in a hit and run accident or uninsured claim know their rights under their uninsured motorist coverage.

Resource:

Blankenship v Allstate Insurance (2010) 186 Cal.App. 4th 87

A recent court case, Saller v Crown Cork & Seal Company, reaffirms a product liability law that protects California asbestos victims and other victims of defective products. California has long been the leader in establishing products liability law. For many years, the courts have held that a product is defective if the design fails to meet consumers expectations as to safety or the benefits of the design are outweighed by safety risks inherent in the design.

In the Saller case, Mr. Saller had worked in an oil refinery for many years where he was exposed to asbestos on pipe insulation. Many years later he developed mesothelioma, a rare form of cancer, that is caused by asbestos exposure. Mesothelioma is a particularly virulent form of cancer, and Mr. Saller died within a year of his diagnosis.

The family of Mr. Saller brought a wrongful death action because of his death due to asbestos exposure. The asbestos company tried to prevent his family from applying the consumer expectation test at the time of trial. It argued that the test should not apply because there was no testimony regarding what an ordinary consumer might expect of asbestos at the time of the exposure. The appellate court rejected this analysis and followed other asbestos cases which held that the use of insulation products are within the understanding of the ordinary consumer and therefore the consumer expectation test was appropriate.

When I first started practicing as a personal injury lawyer in Oakland in 1983, the asbestos litigation was first starting up. I remember representing shipyard workers and pipe insulators who were suffering from asbestosis and lung cancers such as mesothelioma. I'll never forget the suffering of these clients who were unsuspecting victims of this deadly product. I am glad to see our California courts are continuing to protect these asbestos victims by upholding the consumer expectation test in asbestos cases.

Resource:

Saller v Crown Cork & Seal Co. (2010)

Two recent settlements illustrate the point that employers can be responsible for the actions of their employees who cause personal injury auto accidents. In one recent case, San Francisco based PG& E agreed to pay the mother of a college student $5,000,000.00 to settle a wrongful death claim in Santa Clara County. The employee, who was diabetic, passed out causing the fatal accident. In another case, the family of Jose Vega received an award of $7,000,000.00 whose death was caused when a Verizon employee was driving on the wrong side of the road on Highway 101, causing the death of Mr. Vega. In both instances, the employees were on the job when the accidents occurred. Therefore, the employers were responsible for all of the harm caused by their employees.

This legal principle which holds the employer responsible for the acts of their employees goes back to old English times where the master was responsible for the wrongs of his servants. It was known by the Latin term "respondeat superior." Today it is simply called "vicarious liability." The rule is not limited to situations where the employee is actually on the job. The employer may also be responsible for the employee's wrongdoing outside of normal work hours if the employee is on a special errand for the employer or must use a company car as part of his job.

As a bay area personal injury lawyer who has represented San Francisco personal injury accident victims over the years, I have noticed a trend. Employers are requiring their employees to do more and more work from home and on weekends. More frequently they are required to use their own person vehicle in their work. This broadens the scope of the employer's responsibility if their employees get in auto accidents which cause serious injuries. In investigating Oakland auto accidents, it is crucial to investigate all of the facts to determine whether the responsible driver was employed at the time of the accident and whether the employer bears any responsibility.

Resources:

PG&E to pay bereaved mother $5 million in wrongful death lawsuit, Mercury news, July 6, 2010

Wrong-Way Driver Victim's Family Awarded $7 Million, Santa Barbara Independent, July 1, 2010

When someone has been injured in an accident, whether that was in an auto accident, a slip and fall or any other type of injury accident, the person responsible for the injury must pay all of the injured victim's medical bills. This is true even if the medical bills have been paid for by health insurance. This is called the collateral source rule and has been the rule of law in California for over fifty years.

The way the rule works is as follows: If someone incurs medical bills of $100,000.00 and they have been paid in full by the injured person's health insurance, the person responsible for the accident, is still liable for the full $100,000.00. This is true even if the health insurance company paid a contractually discounted amount to the healthcare provider. For example, if the health insurer paid a discounted amount of $75,000.00 in full payment of a $100,000.00 bill, the person responsible for the injury is still liable for the full $100,000.00, which was the amount originally billed.

In the mid 1980's a California personal injury case, called Hanif v Housing authority was decided by the appellate courts. In that case, the court said that the injured party could not recover any more for their medical bills than the health insurance company actually paid. As a result, injured parties were not able to recover the full amount of their medical bills. This case incorrectly decided the case by not following the collateral source rule. As an Oakland personal injury lawyer, I have seen insurance companies use this case for years to unfairly reduce injured person's recoveries. That was until last week.

On June 24, 2010, the appellate court in a case entitled Yanez v SOMA Enviornmental Engineering held that the Hanif court was wrong. It held the collateral source rule was still the law of California. Therefore, persons injured in accidents in California will not have their recoveries unfairly reduced simply because they had the prudence to buy health insurance. No longer will wrongdoers get a windfall because the injured person had health insurance. This was a huge victory not only for Oakland personal injury accident victims, but also for accident victims throughout the State.

Resource:

California Court of Appeals, June 24, 2010, Yanez v SOMA Enviornmental Engineering