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New Case Law

Dangerous Product Case Opinion Limits the Rights of Californians

By San Diego Injury Lawyer on November 17, 2010 - Comments off

The California Court of Appeals for the Fourth Appellate District recently handed down a decision in the case of Gonzalez v. Southern California Gas Company that can only be described as questionable at best and destructive to the rule of law at worst.
A young girl died after her car hit a gas meter that was along the side of the road and not properly covered as required by federal law—a law that was created due to the foreseeability of accidents like this one. The jury ruled in her favor, but the Court of Appeals decided to reverse the verdict, leaving her family without justice. What makes it worse is that the Court decided NOT to publish their opinion for official review and authority—an indication that the justices may have realized that their ruling was unsupported by existing case law.
Our San Diego injury lawyer website recently wrote a brief article detailing the events of this defective products lawsuit and why this is important to everyone to read and understand. The Court decided not to provide the public with protections that previous courts and Congress had intended gas companies to install. Please read our article on this outrageous tort reform opinion for the full story.


Don’t Leave the Photos to the Insurance Company (and Their Photoshop Artists!)

By San Diego Injury Lawyer on August 26, 2010 - Comments off

Often times, people who have had their car damaged in an auto accident do not take pictures of their property damage, instead leaving it to the insurance company (either theirs or the at-fault driver’s) to document.
Do not fall into this trap!
It is always important to maintain control over any and all evidence that will help your case. The reason why is because you do not want to risk the possibility that the insurance company, in an effort to dampen the evidence against their insured, will use a photo editing software like Adobe Photoshop to alter pictures of your vehicle thereby giving the impression that the traffic collision was not so severe.
Photoshop is a program that can not only reduce shadows, alter colors, but it can also distort images through elongation and airbrushing. Here is an example from an Ann Taylor catalogue where the website retouched the photo to make the model look thinner:

If trained professionals can reduce the diameter of a woman’s stomach, torso, and legs, what do you think they can do to that dent in your car’s bumper? Photoshop is a very useful tool in the hands of the insurance company to make small, but significant collisions seem as if no property damage was incurred.
Now, the Courts are realizing that today’s digital images are not the old photographs of old–they can be altered on the fly and very easily. Recently in the criminal case People v. Khaled, the appellate court ruled that a red light traffic ticket must overturned due to a conviction based upon unsubstantiated photographs taken by a camera at an intersection. The Court ruled that where the prosecution failed to lay the foundation for the photographs by submitting testimony establishing when and how the photographs were taken and that they were not altered. The Court ruled that the hearsay rule will exclude the evidence barring testimony laying out this foundation.
It is good that the courts are finally starting to recognize the ease to which photographic images can be altered and that the old business records exception to the hearsay rule cannot by itself allow for the introduction of photographs into evidence. However, what this should mean to you and to any other member of the public , is that it is better not to even give the insurance company an opportunity to alter photographs of your vehicle. The only way to do so is to make sure that you have taken pictures of your car so that you can keep the insurance company honest.


Can an Insurance Company Hide Witness Statements?

By San Diego Injury Lawyer on June 20, 2010 - Comments off

What happens if you are involved in a car accident in California and the at-fault driver’s insurance company takes recorded statements of witnesses to the accident? Can you review them during your personal injury lawsuit?
The California Court of Appeals recently ruled in the case of Coito v. Superior Court that such statements are discoverable and must be turned over to the other party. You can read more about this important California personal injury case law here.

Posted in: New Case Law


Perhaps the Most Important Appellate Court Case for California Personal Injury Clients

By San Diego Injury Lawyer on November 28, 2009 - Comments off

On November 23, 2009, the Court of Appeal, Fourth Appellate District of California (which includes much of San Diego and Orange County) handed down an opinion which helped injured Californians seeking full compensation for injuries caused by others. The opinion, Howell v. Hamilton Meats & Provisions, Inc., declined to follow the insurance industry’s argument that injured people can only collect monies for the reduced amount of their medical bills negotiated by their health insurance companies. The Court upheld the “collateral source rule” that a negligent person must pay for all the harm they caused–including the full amount of medical bills charged by the health care providers–and cannot obtain the benefit obtained by the injured person’s health insurance (the “collateral source”, i.e., a source of payment other than the negligent person.
The Howell case involved a car vs. truck accident where San Diego County resident Rebecca Howell was hit by a commercial truck owned by Hamilton Meats and driven by their employee. As a result of the auto wreck, Ms. Howell was admitted to the hospital and received subsequent treatment from her doctors in the total amount of over $189,000 which included a fusion of the vertebrae in her neck. At trial, Hamilton Meats admitted liability for causing the accident but disputed the amount of damages that Ms. Hamilton was seeking for compensation (this is very typical). After trial, the Vista, CA jury awarded Ms. Howell nearly $690,000, including her $189,000 in medical bills.
After trial, Hamilton Meat’s attorneys sought to reduce the amount of the verdict by arguing that the true amount of the medical bills was $59,000 and not $189,000 after her doctors agreed to accept reduced payments from Ms. Howell’s health insurance carrier. Typically, doctors will agree to a reduced payment from a health insurance company so that the total amount paid for care is not the face value of the bill. They do this for a variety of reasons, including having the benefit of being an approved doctor (and receiving a pipeline of patients) and receiving “in-kind” benefits such as equipment and supplies.
The trial court granted the reduction under a line of cases commonly known as Hanif/Nishihama. During the last five years, the insurance companies have convinced the trial courts that this line of cases allowed for post-trial reductions in jury verdicts despite the fact that the collateral source rule clearly stated that injured people can collect the full amount of their medical bills. The collateral source rule had been California law for nearly 40 years before the Howell decision was handed down earlier this week.
The Appellate Court decision reversed the Hanif/Nishihama rulings and clearly states that the collateral source rule is California law.
This is perhaps the most important ruling in favor of injured Californians in the last 5 or 10 years. The insurance companies had used Hanif/Nishihama to ratchet down settlement offers and to reduce jury verdicts. Now, with Howell, injury victims who had the foresight to obtain health insurance prior to their accident will not find themselves penalized for doing so in court.
Read the whole opinion.
The San Diego injury attorneys at the Jurewitz Law Group want to salute and thank the San Diego, CA personal injury lawyers who fought for this victory.

Posted in: Insurance, New Case Law


Will California Courts Force San Diego Personal Injury Victims to Disclose Private Facebook Information?

By San Diego Injury Lawyer on March 28, 2009 - Comments off

Recently, an Ontario, Canadian court held that parties to a civil lawsuit must disclose social media posts and information during discovery–even if the user believed the post was made privately to his “network”.
We look at the ruling and whether California judges will require the same disclosure from San Diego injury victims. You can read our article, posted here.


San Diego Wrongful Death Verdict to be Reviewed by California Supreme Court

By San Diego Injury Lawyer on March 5, 2009 - Comments off

A San Diego jury awarded the widow of a motorcycle rider and his two children $4.9 million after he was struck on a motorcycle by a truck driver. After the verdict was read, the judge–as is typical–polled the jurors for their votes. However, the judge forgot to get the answers from one juror to two of the 13 questions asked during the polling process.
The juror did agree with the other jurors that the truck driver was negligent and caused the trucking accident. However the judge forgot to ask him if he agreed with the other jurors on the apportionment of damages. The jury verdict found to the truck driver to be 80% responsible for causing the accident but also found the motorcycle rider to be 20% responsible.
On appeal by the insurance defense counsel for the truck driver, the judge’s mistake led to a reversal of the verdict by the Fourth District Court of Appeals. The Court of appeals held, in part, that:

…the trial court erred in accepting the juror declarations to inquire into and resolve the results of the jury’s decision making process, and also when it made a credibility determination that Santana could not effectively have voted other than 80/20 at any relevant time.

The Keeners, the family of the motorcyclist, have appealed to the California Supreme Court to reinstate the jury verdict.
The entire Court of Appeal opinion can be read here.

» Read More


California Supreme Court Rules San Diego Consumers Cannot Bring “Preemptive” Lawsuits

By San Diego Injury Lawyer on February 2, 2009 - Comments off

Last week the California Supreme Court ruled that California consumers cannot bring “preemptive” lawsuits–lawsuits that are brought to stop an injury before the injury actually occurs–for violation of state consumer law.
The Court ruled that only people who have suffered an actual injury can bring suit under the California Consumer Legal Remedies Act.
The ruling came in a case named Meyer v. Sprint Spectrum LP.
What does this mean for San Diegans? It means that even if it is all but certain that you will lose money or suffer some other type of injury from a business’s conduct, you cannot sue to prevent that injury. You must first suffer the injury, then you can sue.
In the case, consumers brought suit against Sprint to prevent Sprint from charging them early termination fees and to change the arbitration provisions contained in the phone service contracts. However, because the consumers had not yet incurred the early termination fees, the Court ruled that they could not bring suit.

Posted in: New Case Law


New Court of Appeal Case: Horseplay Around Pool an “Accident” Under Homeowners’ Insurance

By San Diego Injury Lawyer on June 30, 2008 - Comments off

On Friday, the California Court of Appeals denied State Farm Insurance’s Petition for Writ of Mandate seeking to have the trial court issue judgment in favor of the insurance company. At issue in the case, titled State Farm Fire and Casualty Co. v. Superior Court, was whether the trial court erred in ruling that State Farm owed a duty to defend its’ insured from a lawsuit for personal injuries where its’ insured threw the victim into a pool, landing on an exposed step.
An insurance company’s duty to defend its’ insured is extremely broad. It is broader than the duty to pay a covered loss. The duty to defend applies to any claim that could possibly involve a covered loss.
In this case, the insureds’ 21 year-old son, who lived with the insureds, argued with another young man, Mr. Wright, at a party. When Wright went outside, the son grabbed Wright and picked him up and threw him into the shallow end of the swimming pool. Wright landed on the pool’s concrete step which was above the water line. As a result of this action, Wright fractured his right clavicle and was hospitalized for four days. The son apologized immediately to Wright and claimed that he was just horse-playing.
The son was later arrested for the incident and pled nolo contendre to misdemeanor battery.
Wright then sued the son seeking compensation for his injuries. The claim was tendered to the parents’ homeowners’ insurance policy with State Farm. The policy covered “damages because of bodily injury…caused by an occurrence” with an “occurrence” being defined as “an accident…which results in a. bodily injury; or b. property damage.”
State Farm denied a defense to the parents on several grounds, including:
The claim against you does not meet the insuring agreement in the policy, as the actions do not arise out of an accident. Also, the policy specifically excludes damages which are either expected or intended by the insured or the result of willful and malicious conduct.” In short, State Farm treated the son’s actions as a willful assault rather than mere horseplay.
The Court of Appeals upheld the trial court’s ruling that State Farm acted improperly when they denied the parents with a defense to Wright’s claims. The Court found that under the stipulated facts, an “accident” did occur which would give rise to the duty to defend. The Court held that although the son intentionally picked up Wright and threw him at the pool, the son did not intend or expect the consequence (that Wright would land on a step). Therefore, the duty to defend existed because Wright’s injury was neither expected nor intended by the son, nor was it the result of a malicious act by the insured.

Posted in: New Case Law


California Court of Appeals: Medical Bill Adjustment and/or Writeoff Not Enough to Sustain Collateral Source Attack

By San Diego Injury Lawyer on June 24, 2008 - Comments off

San Diego injury victims have repeatedly had their cases undervalued by insurance companies and their attorneys who reduce the victims’ medical bills by the amount paid or written off by medical insurance companies. This process, arising from the misapplication of two Court of Appeal opinions–Hanif and Nishihama–have allowed insurance companies directly attack and gut the collateral source rule.
Under the collateral source rule, evidence that a person or entity other than the tortfeasor has paid for the injured person’s medical care is excluded from evidence in determining the reasonable value of medical damages. In short, the medical damages is the fully billed amount of medical bills.
Earlier today, the Court of Appeal handed down an opinion in the case of Olsen v. Reid that defendants cannot seek reductions of medical damages simply by presenting a bill indicating that an adjustment or writeoff was applied to a medical bill. The Court reversed the trial court’s post-trial ruling reducing Ms. Olsen’s medical damages from $62,475.81 to just over $5,000. The Court held that the defendant had not presented sufficient evidence to support the ruling when all it did was present a copy of Ms. Olsen’s medical bill with some amounts indicating a writeoff and adjustment of most of the bill.
The Court also issued two concurring opinions which dramatically attack the insurance companies’ ability to obtain a reduction in medical damages. First, Judge Moore summarizes the case history of the collateral source rule and the subsequent attacks by Hanif and Nishihama before finally concluding that Hanif/Nishihama unjustly abrogates the collateral source rule and is, therefore, impermissible. Secondly, Judge Fybel’s concurring opinion lists a number of missing evidentiary items that were presented in Nishihama to obtain the reduction of medical damages–all of which were missing in this case. Most of the items that Judge Fybel describes are very hard for anyone–whether the plaintiff or defendant–to obtain as they contain trade secrets of the medical insurance companies.
We are still reviewing the Court’s opinion and will provide additional information after that review.

Posted in: New Case Law


Medical Malpractice Protections Extended to EMTs While Driving

By San Diego Injury Lawyer on June 22, 2008 - Comments off

In February of this year, the California Court of Appeals extended the protections afforded to medical doctors under the Medical Injury Compensation Reform Act (MICRA) to emergency medical technicians (EMTs) who are in the process of transporting patients for medical care.
In the opinion by Justice Madeleine Flier, the Court of Appeal held that such protections were warranted since the services provided by EMTs were “inextricably identified” with the health and medical care of their patients. Further, the Court rejected the argument by the plaintiff, a Los Angeles police officer injured while riding along in the ambulance when it was involved in a collision, that MICRA protections could only be extended to those services to which an EMT was licensed. The court held that EMTs were licensed to provide transportation by the Department of Motor Vehicles’ special license and, therefore, were still protected by MICRA when involved in traffic accidents while transporting patients.


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