San Diego Injury Lawyer Blog

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.

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.

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.

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.

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.

Continue reading "San Diego Wrongful Death Verdict to be Reviewed by California Supreme Court" »

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.

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.

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.

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.

We've written about Benetta Buell-Wilson before. Earlier this week, the California 4th Circuit Court of Appeals upheld its' ruling that Ms. Wilson was entitled to $82.6 Million after the US Supreme Court held that the Court of Appeals should review its' ruling.

Ms. Wilson was originally awarded $370 Million dollars by a San Diego Jury. The verdict was later reduced by the trial court to $102 Million and then to $82.6 Million by the Court of Appeal. However, when given the opportunity to reduce this verdict again, the Court of Appeal declined.

The Buell-Wilson v. Ford Motor Co. is important for several reasons. First, it was the first time that Ford was held responsible for injuries resulting from a Ford Explorer roll-over auto accident. During the trial, Ms. Buell-Wilson's attorneys effectively proved that Ford was aware that the Explorer was dangerously unstable and prone to oversteer leading to rollovers. Ford also knew that in the event of a roll-over, the Explorer's roof was not strong enough to prevent crush. The cost of preventing rollover roof crushes was minimal, yet Ford refused to make he necessary changes. This is oddly reminiscent of prior Ford safety shortcomings; e.g., the Ford Pinto, use of Firestone ATX tires, etc.

Congratulations to Ms. Buell-Wilson. We hope that this latest ruling provides you with peace...after more than a decade of litigation against Ford's lawyers and unlimited bankroll.

UPDATE: Ms. Buell-Wilson is going to continue to wait for justice. Ford has decided to appeal the latest court ruling.

The US Supreme Court predictably refused to review a California Court of Appeals' ruling throwing out the bulk of a San Diego jury's verdict awarding developer Rocky de la Fuente $95 Million after the City of San Diego breached a development agreement and took steps to devalue the land upon which it was to built.

A Superior Court jury initially awarded De La Fuente $95 million in his dispute with the city over development of a 312-acre business park near the international border. With legal fees and interest, the potential payment by the city could have reached $150 million.

The developer had sued, alleging the city breached a development agreement he had over the park, and took a series of steps that devalued his land. Soon after the verdict, a judge threw out a portion of the verdict awarding $29.2 million over violations of the development agreement, but let the bulk of the award stand.

The city quickly hired outside lawyers to pursue the appeal. In June 2006, the 4th District Court of Appeal in Riverside overturned the rest of the case, concluding there was insufficient evidence to support the jury verdict. The state Supreme Court upheld that ruling.

The city is not quite out of the woods, however. A retrial on the $29 million claim over the reach of the development agreement still looms.

Didn't hear about this last week? Not surprising. The media loves to trumpet big verdicts, but doesn't mention when those big verdicts are reduced (see the Ford roll-over verdict below).

Know all those HUGE, "outrageous" verdicts that tort reformers cite as proof that juries are out of their minds and are too plaintiff-friendly? This is the story of one such verdict and, unfortunately, it is not unusual.

In 2004, a San Diego jury awarded Benetta Buell-Wilson and her family nearly $370 Million dollars in a Ford Explorer roll-over auto accident case. Now, the Supreme Court will review the verdict and possibly reduce it. The Supreme Court will be the third court to do so after the trial court and the Fourth District Court of Appeals both reduced the verdict from $122 Million in compensatory damages and $246 Million in punitive damages to $27.6 Million (compensatory) and $55 Million (punitive).

What happened to Benetta?:

On a January afternoon in 2002, Buell-Wilson was driving at a normal speed on Interstate 8 east of San Diego when she swerved to avoid a metal object that had fallen off a motor home. Her 1997 Explorer fishtailed and rolled over four times. Part of its roof was crushed, and Buell-Wilson suffered a severe spinal injury.

As a result of the accident, Benetta is now paralyzed and confined to a wheel-chair.

Now, Ford had previously won 13 trials without a loss. And they weren't shy about sharing that fact during litigation in the hopes of forcing Benetta and her husband to settle.

Plaintiffs were 0-13 and Benetta and her attorneys were risking a huge disappointment. These cases are not cheap to try. I've heard some estimates that Benetta's attorneys paid upwards of $750,000 to experts to prepare and try the case. And if they lost, the lawyers would lose that investment, Benetta would be forced to pay for all future care by herself out of her own pocket, and, worse still, Benetta would be forced to pay Ford's litigation costs.

Given all this risk, and the evidence that Ford knew of problems with its' vehicles for roof crush and roll over propensity, is $370 Million dollars outrageous to pay for a permanent injury and to punish Ford for its' callousness?

In fact, the problem had been well-documented for years:

No recall has ever been ordered for these vehicles. How many are still out on the road? How many more roof crush injuries or deaths will still occur? Will Ford EVER be forced to pay enough that they will consider the safety of their customers?

The Supreme Court should uphold the reduced verdict. Ford is already emboldened by the two prior reductions. No need to make it worse for consumer safety.

Prevailing parties just received help from the California Court of Appeals in obtaining full cost reimbursement after judgment. Our office wants to inform our clients, and other plaintiff attorneys, of this development so that they can maximize their hard won judgments.

In El Dorado Meat Co. v. Yosemite Meat and Locker Service, No. F049334, the Fifth Circuit Court of Appeal upheld a trial court's ruling to award Yosemite Meat (as the prevailing party), nearly $150,000 in costs pursuant to California Code of Civil Procedure (CCP) Section 1033.5(a)(12).

The facts of the case are these:

El Dorado filed suit against Yosemite Meat alleging a variety of causes of action, including violations of the California Unfair Competition Law . The lawsuit arose from El Dorado's claims that Yosemite Meats fraudulently sold boar meat to otherwise unsuspecting customers and illegally reduced their labor costs by employing undocumented immigrants. El Dorado claimed that these actions led it to be uncompetitive in the market and drove it out of business.

After trial before a jury (for some causes of action) and the court (for others), the court found in favor of Yosemite and entered judgment in favor of Yosemite.

As the prevailing party, Yosemite Meats served and filed a memorandum of costs seeking to recover $194,704. El Dorado filed a motion to strike and tax costs pertaining to Yosemite Meat's attempt to recover $143,809 for "models, blowups, and photocopies of exhibits."

Continue reading "Important New California Case Helps Prevailing Injury Victims; Could Lead to Abuse" »