Unfortunately, “backing up” accidents become more common as the weather gets nicer and more children start to play outside.  Every parent should double-check the rear of his/her vehicle before exiting the driveway.  Every child should be accounted for before someone starts the car in reverse.

This is the second time this week where a child has been fatally hit by a vehicle backing out of the driveway.  Earlier this week a 3 year old girl on a tricycle was killed when a vehicle backing out struck her without warning.

Our hears and prayers go out to the family.  This is tragic, and we feel very sad for the father and the child’s mother.

For example, the statute of limitations for most personal injury lawsuits in the state of Washington is three (3) years. Statutes of limitations are different in each state and often change according to the type of case you have, but all of them are hard deadlines. That is, if you wait too long, you will not be able to pursue your case, no matter how strong it is.

One of the first things your lawyer will do after learning about your case is calculate the statute of limitations that applies, and take any action necessary to preserve your right to sue.  To start a case you must personally serve the other party.  That means it is very dangerous to wait until the statute of limitations is about to expire before you file your case.  If you fail to locate the correct defendant, or serve the wrong person, your case gets dismissed if the statute of limitations period has passed.  It doesn’t matter to the courts that you had trouble locating the other party.

There are also legal deadlines that apply in certain specific circumstances. For example, if you plan to sue a government agency, you may be required to give that agency notice within a relatively short period of time, or file an administrative complaint, before you may sue.

In Washington, if a party wishes to sue a governmental entity he or she must first file a claim with that entity and then wait sixty (60) days before filing the lawsuit.  The failure to comply with this rule may mean the dismissal of your lawsuit.  Because these deadlines can be short and missing them can take away your right to sue, it is essential to learn about them and take action as quickly as possible.

The laws dealing with the statute of limitations and governmental claims forms are just some of the reasons why it makes sense to consult with an experienced personal injury lawyer as soon as is practical after your accident.

One common defense is to suggest that the victim suffered from similar injuries before the accident, or that the victim was predisposed to the type of injury he or she suffered.  We at Davis Law Group have had cases where the insurance company actually relied on a medical record that pre-dated the motor vehicle collision 15 years earlier!  Even though are client was symptom-free for more than 12 years, the insurance company still tried to argue that her “pre-existing” injury predisposed her to an injury 15 years later in the car accident!  That gives you some idea as to how absurd some of the defenses the insurance company will allege.

Yet another defense is to try to prove that the victim’s injuries were not caused by the accident, but by other events in the victim’s life (e.g., a prior fall, prior accident, or some other medical condition). When insurance companies cannot dispute fault for the accident they may resort to the age-old tactic of attacking the accident victim’s character or preexisting medical history.

A good lawyer will successfully challenge these common defenses and help the victim present his or her injuries clearly, concisely and coherently.

For example, even if you suffered from a similar medical problem (such as a back or neck condition) before the accident, your lawyer can help you prove that your previous injury was made worse as a result of your accident.

 Washington law supports the premise that a wrongdoer “takes his victim as he finds him.” This means victims are entitled to recover full compensation even if they were particularly susceptible to an injury, or predisposed to experience greater pain or suffering than could have been foreseen by the defendant.

For example, you have a bad back that never required surgery, but then you are involved in a serious car accident that aggravates the back condition enough to require surgery, you are entitled to recover compensation for the surgery. After all, you would not have needed it if the accident had never happened.

If you have a claim where the insurance company seems to be looking for any fact, circumstance or excuse to deny your claim or lessen its value, it’s time for you to speak with an experienced attorney.  Don’t try to fight the company alone.  With its vast resources and knowledge, the insurance company can be a very formidable opponent.  The things you do or say early on in the claim process can make a difference on whether you achieve a successful outcome.

Most experienced personal injury lawyers understand that a settlement should not be rushed, particularly if one desires a good settlement. Settling a case is often a process. Good settlements usually take time and effort.  The process can be complex and take many months or even years. Different lawyers initiate the process in different ways (who goes first and so forth), but it always ends up with an offer and a series of counteroffers and counter-demands. However, the numbers passed back and forth are based somewhat on reason given the facts of the case.  A good lawyer will prepare the case for trial in an effort to get the best settlement possible.  The settlement offers and counteroffers will be based on the evidence that each side expects to present and hear at trial.  A party that has prepared a strong case for trial may be in a better negotiating position when it comes time to settle the case.

Deciding whether to accept a settlement offer requires you to consider subjective as well as objective factors. For example, there are benefits to ending your claim sooner rather than later.  Litigating the case can take a high toll emotionally.  On the other hand, the time, anxiety, energy and risk assumption required to go to trial may be worth it for the client —because of the potential for greater compensation. Client objectives vary, and each case and each client is different. The settlement process offers an opportunity for dialogue — and out of this dialogue comes a decision that fits the client in that case.

There are numerous factors to think about when considering a settlement offer, but issues to consider start with the amount of money being offered, the conditions attached to the offer and the amounts owed to third parties — like health care providers, other insurance companies and lienholders. There are laws and contractual obligations that govern these third parties’ rights to participate in the distribution of settlement proceeds. These rules are part of every settlement agreement, and you are expected to know them. An insurance company has no duty to explain the rules to you. Third parties such as health care providers might also claim part of your settlement behind the scenes.

A settlement offer is always measured against this one question: “What will a jury do in your case?”  No one knows for sure of course.  But the reasonableness of a settlement offer is whether a jury may award an amount close to the offer or some amount that is much higher or lower.  If your lawyer believes it may be difficult to get a jury to award much higher than the offer, then the settlement offer should usually be accepted. 

There is also a difference in the settlement value of a case versus the actual value a jury may decide.  The settlement value of a case is always less than the actual value of a case.  This is because the settlement value takes into account the enormous expense and risk of going to trial.  The settlement value is always a judgment made by the parties.  The settlement offer has to be high enough to persuade the claimant to accept the offer to avoid the increased risk and expense of going forward with litigation and a trial.  For example, if there is a strong defense concerning liability (i.e., the defense can show that a jury might not find the defendant at fault for the accident or find that the plaintiff shares a good portion of the fault), then the settlement value of case will be reduced even further to reflect the risk that no fault or little fault may be assessed against the defendant.  Insurance companies will always evaluate settlement value lower than what a jury verdict might be.  Again, the insurance carrier knows that the plaintiff will incur risk and expense by going to trial so the offer will reflect these uncertainties. 

Other considerations involve what debts, claims or other liens might exist against your settlement recovery. Your lawyer’s job is to get a settlement offer that will take care of any and all deductions that must come out of your recovery.  If the settlement offer is not sufficient to pay all of these debts, you may be liable for the rest. Sometimes, your lawyer can help by negotiating or using other remedies available under the law to make sure all of your obligations are covered. Depending on the circumstances, your lawyer might be able to convince creditors to take a lesser amount in exchange for immediate payment. But because this is an uncertain process, it is important to discuss your debts and obligations with your lawyer when analyzing a settlement offer. 

There are some lawyers who disagree with me.  These lawyers will tell you that you should ALWAYS call a lawyer immediately after every accident — even before you go see a medical doctor for your injuries!  Some lawyers will go so far as to tell you that you should call a lawyer while sitting in your car waiting for the police.  That’s just bunk.

Those lawyers who tell you to call them within minutes after an accident are usually more interested in collecting a fee than on protecting your best interests.  Choosing a lawyer should be done thoughtfully and carefully.

So how do you know when you should contact a personal injury for your accident case?  Here are some questions to answer:

1. Will your injuries require more than just a few months of medical treatment?
2. Will your total medical bills exceed $3,000 to $5,000?
3. Are your injuries longlasting, permanent, or severely debilitating?
4. Are your injuries catastrophic (i.e., loss of limb, paralysis, brain injury, etc.)
5. Do your injuries involve loss of limb or body part, or is there permanent scarring?
6. Is there a dispute about who caused the accident?
7. Is the insurance company ignoring your calls, or acting rude and unhelpful to you during the claims process?
8. Does the case involve a claim for wrongful death?

If you answered yes to one or more of these questions, then you may likely benefit from the assistance of a qualified personal injury attorney.  You should definitely talk to an attorney to hear how that attorney evaluates your claim. 

That’s why I decided to publish my first book nearly 3 years ago for Washington state accident victims.  Even though the book sells on Amazon for $20, I give the book to accident victims for FREE so they could have good and accurate information about the claims process and personal injury attorneys BEFORE the person actually decides to hire a lawyer.  Do not fall for the lawyer who SCREAMS hire a lawyer immediately after an accident, at least not if you want to make the best decision possible for your personal injury case.

We at the Davis Law Group usually turn down at least 25-35% of new accident cases because we believe the claim does not require the assistance of an attorney.  Sure, we could certainly sign these clients up and collect a fee.  But that wouldn’t be in the client’s best interest because the person could likely recover more compensation without an attorney.

If you’re looking for a Washington state personal injury attorney, do your homework.  Don’t choose the first lawyer you may see on TV.  Choose a lawyer that is more interested in protecting your best interest, and not the lawyer who is more focused on collecting a quick contingency fee.

Not only can an individual person be responsible for causing a wrongful death, but so can a corporation or governmental entity as well.  When a wrongful death occurs, the law permits the surviving relatives of the deceased to recover certain types of damages against the responsible party. 

In Washington (like most states), a wrongful death claim is governed by a specific statute that was passed by the legislature.  The wrongful death statute has specific requirements that must be met before a case may proceed.  To bring a wrongful death case, a person called a “Personal Representative” must first be appointed by the court on behalf of the deceased person’s estate.  The Personal Representative may also be known as the Executor or Executrix of the estate.  A petition to appoint the Personal Representative must be filed in court.  The judge must then enter an order appointing the person who will act as Personal Representative of the estate.  The Personal Representative is then legally responsible for prosecuting the wrongful death case on behalf of the estate and certain surviving relatives (also called beneficiaries).

In Washington, only certain designated surviving relatives can bring a wrongful death case.  These surviving relatives are also called “statutory beneficiaries” (because they are designated by the wrongful death statute).  The Washington legislature created what is called a “two-tiered” system of beneficiaries who may bring a wrongful death case.  This means that there are two levels of certain designated surviving relatives that have legal authority to recover damages caused by the death of a loved one.  If none of these designated surviving relatives exist then no wrongful death action can be brought.  In that case, the death of a person, even if considered “wrongful,” cannot recover damages against the responsible party.

In Washington’s “two-tier” system, the surviving spouse and children make up the first tier of authorized beneficiaries.  A step-child is also included in the first tier.  These surviving relatives have automatic standing to bring a wrongful death case for the wrongful death of a spouse or parent.  Often times one of these “first-tier” beneficiaries will be appointed as the Personal Representative by the court to bring the wrongful death lawsuit.

The second tier of beneficiaries who may bring a wrongful death action consists of a parent or sibling of the deceased, but only if this surviving relative was dependent on the deceased for financial support.  There is one exception however.  That is when the deceased child is a minor.  In that case, a parent may bring an action for the wrongful death of a minor child to recover damages for the “destruction of the parent-child relationship” regardless of whether the parent was financially dependent on the minor child at time of death.

But if the person wrongfully killed was an adult, unmarried and without children, only a parent or sibling may maintain a wrongful death action as long as this surviving relative was financially dependent on the deceased at the time of death.  Washington courts have stated that the “second-tier” beneficiary must have been substantially dependent on the deceased for financial support.  The parent or sibling does not need to be wholly or completely dependent on the deceased.  But there must be enough evidence to prove “substantial financial dependence.”  The financial dependence must also occur at the time of death, as opposed to having occurred in the past or to occur at some point in the future.  

What constitutes substantial financial dependence?  There are no hard and fast rules.  But Washington courts have generally held that substantial financial dependence may occur where the deceased was paying or contributing to a portion of the parent’s or sibling’s living expenses.  The courts have clearly stated however that services provided by the deceased that one would expect to be provided by a family member is not enough to show substantial financial dependence.  The courts have also held that “emotional” dependence is not enough either.  Without evidence of substantial financial dependence the court will almost certainly dismiss the wrongful death action for failing to comply with the specific terms of the statute.

Washington’s wrongful death statute can produce some very unjust results.  Take for example the situation where the person wrongfully killed is an adult, unmarried and has no children.  Even if the deceased had very close and loving relationships with his or her parents and siblings, no wrongful death action could be brought unless the deceased was financially supporting his parents or siblings.  One would assume that most single childless adults do not financially support other family members.  So when a wrongful death occurs in this type of situation no recovery can be made, no matter how egregious the conduct was that lead to the person’s death.  That is unjust.  The death of an unmarried childless person is no less painful or devastating to a surviving parent or sibling not receiving financial support than it is to a surviving relative who was receiving financial support from the deceased.  This is why many attorneys have asked the Washington legislature to amend the wrongful death statute to prevent these types of unjust results.

When the Personal Representative brings the wrongful death action, he or she does so for the purpose of recovering damages on behalf of the deceased person’s estate and surviving beneficiaries.  Both the estate and surviving beneficiaries each can recover economic and non-economic damages caused to them by the person’s death.  The estate’s economic damages may include healthcare and funeral expenses as well as the deceased person’s net accumulated earnings and benefits expected to have been earned over the course of the person’s life had death not occurred. 

The phrase “net accumulated earnings” refers to those earnings and benefits received after other personal and living expenditures are deducted (e.g., normal living expenses, gifts, contributions, and consumer expenditures).  The law requires that an expert (usually an economist) calculate the present value of the Estate’s expected net accumulation.  Obviously this amount will vary according to the deceased person’s income producing capability.  There can be wide disagreement among the experts on just how much net accumulated earnings would have been earned by the deceased had death not occurred.  For this reason it is very important to involve competent and highly skilled experts in the case who have excellent reputations.

A difficult case can arise when the deceased is a child or when the deceased’s earnings history is sporadic, or when the deceased’s earnings potential has not been fully realized.  In these cases the insurance company and its lawyers will almost certainly argue that any future expected earnings are too speculative to calculate.  In these cases the insurance company will often refuse to pay a large sum of money to compensate for future lost earnings.  For these reasons it is very important that an experienced wrongful death lawyer be hired early to investigate and pursue this type of case.  The experienced wrongful death lawyer can hire the best experts and uncover specific evidence to help prove that the deceased’s potential earnings were much more substantial than what the insurance company lawyers and experts may contend.

When using experts to calculate economic damages, it is important to involve the expert early on in the case.  It is also important to furnish the expert with all of the necessary documentation to help the expert calculate lost earnings and expected net accumulations.  These records may include without limitation employment, tax, educational, medical, bank, insurance, or other financial documents.  In the case of a deceased child or young adult, sometimes the financial records of the parent may help.  Many times the earnings potential of children may closely resemble that of their parents.  In any event, the expert will want to review as many records in the case to help support the expert’s opinion.

Each surviving beneficiary (first-tier or second-tier) also has an individual claim for economic damages.  This might include damages for lost financial support expected to be received from the deceased person had death not occurred.  For example, a surviving child might incur damages for expected contributions to cover the cost of a future college education.  There might also be damages for healthcare expense incurred by the surviving relative which were necessitated by the person’s death (e.g., counseling, psychiatric treatment, or medication).

The losses categorized as non-economic damages may be more difficult to calculate or quantify.  In the case of the Estate’s non-economic damages, these may include a recovery for the loss of enjoyment of life due to the deceased person’s shortened life expectancy.  Also included may be damages for the pain, suffering, anxiety, emotional distress, humiliation, and fear experienced by the deceased person prior to death as a result of the incident that caused death (e.g., a car accident victim who initially survives and is conscious before death).  Many times it may be necessary to hire a medical expert to help establish that the deceased person consciously felt pain, distress or anxiety before death occurred.  Sometimes the testimony of witnesses or passersby’s who had contact with the deceased right before death can help establish that the person was in fact conscious before death and experienced pain and suffering.  Occasionally the autopsy report will help prove the deceased was conscious before death, but often times not.

Each surviving beneficiary also has a separate or individual claim for non-economic damages caused by the person’s death.  A surviving spouse may recover damages for “loss of consortium” which includes the loss of emotional support, love, affection, care, services, companionship, including sexual companionship, as well as assistance, expected from the deceased spouse.  A surviving child may recover damages for the loss of a parent, to include the loss of love, care, companionship, and guidance expected from his or her father or mother.

In the case of an action brought by the parent for the wrongful death of a minor child, the surviving parent may recover economic and non-economic damages as well.  The economic damages may include financial support expected from the child (e.g., if the child were employed and/or contributing toward the parent’s living expenses at the time of death).  The non-economic damages may include damages for the parent’s grief, mental anguish, and suffering caused by the child’s death.

Whether damages are being claimed by the Estate, a surviving beneficiary, or a parent over the death of minor child, the non-economic damages portion of the case can be difficult to determine and present to an insurance company or a jury.  There is no magic formula to apply.  But certain facts may be relevant to deciding what amount of non-economic damages is fair and just.  These factors may include the deceased person’s life expectancy, the deceased person’s health and habits, and the quality of the deceased person’s relationships with surviving beneficiaries.  Many times using an experienced and competent mental health expert (e.g., therapist, psychologist, psychiatrist, counselor, etc.) can help establish and prove the “intangible” loss suffered by a surviving spouse, parent, child or sibling.  Not the least important is to hire an experienced wrongful death lawyer to pursue the case.  The wrongful death lawyer will usually possess valuable knowledge and expertise to assist in proving and presenting damages to the insurance company or jury if the case goes to trial.   

Clearly the death of a loved one is tragic.  An unexpected death in the family can be the most difficult experience to encounter in one’s life.  But if you are a surviving relative of a person who was killed due to the intentional and/or negligent conduct of another party, it is important that you hire legal representation as soon as possible.  A Personal Representative must be chosen and then formally appointed by the court.  In many cases the insurance company investigators and lawyers have already gathered a substantial amount of information to help mount a defense to the anticipated wrongful death action that will be filed.  If you delay hiring a lawyer, it could cause substantial difficulties later on, especially if evidence is lost, destroyed or misplaced.

Christopher M. Davis is the founder and managing attorney of Davis Law Group, P.S., a full service personal injury law firm with offices in Seattle and Bellevue, Washington.  Mr. Davis has been practicing personal injury law for 15 years.  His practice includes cases involving catastrophic injury and wrongful death.  In 2006, Mr. Davis was named a “Rising Star Attorney” by Washington Law & Politics magazine (designation of the top 2.5% of attorneys in the state age 40 years and younger).  In 2007, Mr. Davis was named a “Super Lawyer” by Washington Law & Politics (designation given to the top 5% of all lawyers in the state). 

Mr. Davis has authored a book to help accident victims, “The Ten Biggest Mistakes That Can Wreck Your Washington Auto Accident Case,” and a book about child injury claims, “Little Kids, Big Accidents.”  Both books are published by Word Association.  Mr. Davis lectures other attorneys in matters involving personal injury law, including topics such as wrongful death, damages, suing insurance companies and developing winning trial techniques.  He is a member of the Board of Governors for the Washington State Association for Justice.  Mr. Davis is also member in good standing of the Washington State Bar Association.  He lives in Seattle with his beautiful wife and two young children.

Attorney Brenda Hollingsworth of the Auger Hollingsworth law firm in Ottawa, Canada recently reported on an accident involving 5 bicyclists who were all mowed down by a van that never stopped and sped away.  Tour de France champion Lance Armstrong learned of this serious accident and actually commented on the incident through is video blog.  Lance said, “…anytime you have  that interaction of bikes and cars, you never know what can happen.”  Well said Lance, and very, very true.

So, we all need to be careful no matter where you are.  The increase in bike accidents during the summer is not just a local phenomenan, but one that is seen nationally and in other countries.  Let’s all be safe while driving and/or biking!

Parents should always teach their children to wear bicycle helmets while riding their bike.  Children, especially those under the age of 12, should never ride their bikes on or near city streets after dark.  Parents also need to teach their children the simple rules of bicycle riding:

1. Avoid riding on busy streets.

2. Never cross busy intersections while riding the bike, a child should dismount and walk the bike across the street in a crossing zone.

3. Teach children to understand and obey traffic control signals and signs, like the Stop and Yield signs.

4. Children should wear bright clothing so they are visible to motorists.

5. Teach children to assume a driver cannot see the child riding the bike, so the child should always make eye contact with the driver when approaching.

6. Try to locate a safe area for your child to ride, like a park or culdesac where there is no traffic.

Unfortunately, child bicycle accidents increase when the weather in Washington improves.  That’s why parents need to be diligent on teaching their children safe habits while riding. 

Davis Law Group founder and Seattle attorney Chris Davis has published a book “Little Kids, Big Accidents” that gives valuable information on child injury accidents and how to prevent them.  The book also is an important resource for parents who want more information about the insurance claims process and how the legal process for child injury claims works.

How does the current economy affect the litigation and personal injury claims process?  I have seen some changes just in my own practice.  Insurance companies, like most other corporations, are tightening their belts and looking for ways to cut costs and retain more revenue.  For insurance companies, one way they do this is by trying to cut down on claim payouts.  This refers to the amount of money a carrier has to pay out to settle and resolve claims.  Some companies have thousands, or hundreds of thousands, of claims.  So reducing the average claim payout can actually save the insurance company millions of dollars.

In my own practice, I see that most carriers are reducing the amount of payouts for injury claims.  This has ranged anywhere from 10% to 50% in some cases.  In a few cases I have seen an outright denial of a legitimate claim based on some small or weak defense that never would have happened a year ago.  For example, a person who had an injury 10 years ago but made a full recovery.  This fact now becomes a major issue for the insurance company because it can argue that some or most of the medical care or symptoms were due to a pre-existing condition.  Sounds ludicrous I know.  But the carriers are making these type of ludicrous assertions just to save money.

The indirect result is to force claimants and their attorneys to file more lawsuits.  A lawsuit is expensive and can take up to 2 years just to get a trial date.  That means the insurance company is holding onto its money a lot longer and is able to use it for investment or to pay down other debts.

I’ve filed 7 lawsuits just in the last 45 days.  I only average about 1-3 new lawsuits every 60 days or so.  But because the carriers are now reducing payouts by as much as 50%, my clients are forced to litigate just to recover a fair amount of compensation to pay medical expenses and make up for lost wages and other incidental damages.  In one significant injury case, the carrier took 4 months to respond to a settlement demand.  Then proceeded to deny the claim entirely, even though its own insured was the sole cause of the accident according to the police report!

One insurance claims adjustor friend of mine told me that his superiors told his department that the goal was to reduce claim payouts by 30% over the next twelve months.  And that adjustors would be paid a bonus for each month they met this goal.

Now more than ever do accident victims need to retain experienced and competent counsel to help them with significant and legitimate injury claims.  My office has also seen a spike in new client inquiries and sign-ups, presumably because unrepresented claimants are finding it impossible to settle a claim on their own now that the insurance industry is tightening its belt.

Washington law also requires bicycle riders to use appropriate hand signals when turning left or right, or when stopping.  See RCW 46.61.758.

A frequent question I hear is where is the bicycle rider legally permitted to ride?  On the street?  On the sidewalk?  Well, Washington law states that every person operating a bicycle upon a roadway at a rate of speed less than the normal flow of traffic shall ride as near to the right side of the right through lane as is safe except as may be appropriate while preparing to make or while making turning movements, or while overtaking and passing another bicycle or vehicle proceeding in the same direction.  See RCW 46.61.770.

The law also states that a person operating a bicycle on a one-way street that has two or more marked traffic lanes, may ride as near to the left side of the left through lane as is safe. A person operating a bicycle upon a roadway may use the shoulder of the roadway or any specially designated bicycle lane if such exists.

Washington law is clear that bicycle riders must exercise appropriate due care and caution just like motor vehicle operators.  This means bicycle riders have a duty to avoid causing a collision, and not to engage in conduct that is considered careless or negligent. 

The right-of-way between a bicycle and motor vehicle is often highly dependent on the facts of the situation.  Therefore, a serious accident involving a bicyclist and a car must be investigated thoroughly.  Witness statements should be obtained.  Sometimes an accident reconstruction expert should be involved immediately to inspect the scene, record skid marks and take other measurements, so enough evidence is collected to prove liability.

This information is a service of the Seattle personal injury firm Davis Law Group.  The attorneys at Davis Law Group specialize in representing injured bicyclists who have been victims of motor vehicle crashes.