It appears that the bad economy has caused many cities to begin thinking of new ways to raise revenue.  The city of Chicago now charges accident victims for basic city emergency services that used to be paid for by the tax base.  Now, if you’re hit or injured in an accident and the fire truck or EMT van responds as a precaution, you may be charged several hundreds of dollars for the service.

Fair?  Who cares.  It’s how more and more cities are choosing to make money in these tough economic times.  Even if another person causes you a serious personal injury or catastrophic loss.

The case in Chicago involved Cary Feldman who was hit while riding on a scooter.  Feldman didn’t cause the accident, the other guy did.  But that didn’t stop the City from sending him a bill for $200 because the fire truck responded to the scene even though it wasn’t necessary.

We have a new name for the charge – “Crash Tax”.  Feldman callls the “tax” a rip off and a scam.  I tend to agree.  Why not charge the other person who actually caused the accident in the first place?  Good question.  No one wants to answer that however.

At least 26 other jurisdictions now assess a Crash Tax.  Could it be something that the city of Seattle may start doing?  If so, it would be a miscarriage of justice.  But as the economy continues to struggle, I wouldn’t count it out among our local politicians.  Seems like our elected officials are looking for any way to pass more taxes and raise fees on the public. 

But if any of the Seattle politicians are reading this blog, I say: Don’t do it.

The important question is: Can the parents be held legally responsible for that car accident?  In a word, yes.

In Washington, there is a law known as the Family Car Doctrine.  This doctrine states that the parents can be held legally liable for the child’s negligence in causing a car accident if the car being driven by the child was owned or maintained by the parents, and the parents provided the vehicle for the general use, convenience and pleasure of the family.

Under the Family Car Doctrine, the parents can be sued individually if their child causes a car accident and injures someone.  That means the parents could be financially ruined if their child causes serious injuries and/or property loss.

Parents need to be careful when letting their children drive their car.  Some steps that parents can take to protect themselves from the loss or damages caused by their children’s use of the vehicle:

1. Think about registering the car in your child’s name, and require that your child actually purchase the vehicle.
2. Require your child to maintain the vehicle by purchasing gas, insurance, and paying for routine maintenance.
3. Take out more insurance on the vehicle that will be used by your child.
4. Think about purchasing a high value umbrella policy which should provide additional coverage if your child causes a serious accident.
5. Maintain strict rules for your child about the use of the family car (no passengers until a certain age, no infractions, no alcohol use, curfew hours, etc.).

Now, even if you utilize all of these precautions it still may not prevent  you from being sued over a car accident caused by your child.  But they will help to minimize and/or eliminate your financial responsibility in a subsequent lawsuit.

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.

Take, for example, the case of a 25-year-old day laborer named Rick who was seriously injured as a passenger on his way to the beach with a few of his friends.  Rick’s injuries were severe and permanent, rendering him unable to work anymore. The other driver (the defendant) was clearly at fault, since he crossed the center line and hit the vehicle Rick was riding in head-on. 

The defendant driver’s liability insurance carrier said there was a total of just $25,000 on his policy, so Rick would not be able to recover any more compensation than this for his significant injuries.  Rick’s medical bills alone exceeded $100,000.

Rick had consulted several lawyers in Seattle who declined his case, saying there was limited coverage (the $25,000) and his bills already exceeded $100,000.

Then Rick spoke to a friend who referred him to Davis Law Group.  We determined that while the vehicle Rick was riding in did not have underinsured motorist (UIM) coverage, the trailer it was pulling did have coverage though his friend’s father, a small business owner with a commercial insurance policy. 

I was convinced that there was UIM coverage through this policy, which would allow Rick to collect the full amount of his injuries.  We negotiated and “worked” the case for over a year, finally convincing the insurance carrier that Rick should collect on $500,000 in additional insurance coverage.

Rick ultimately found additional coverage from the limits of the trailer’s commercial policy.  These additional settlement proceeds were placed in a special needs trust, which allowed Rick to keep receiving Medicaid.  Rick was able to spend his settlement proceeds on other necessities.  By fully investigating the case and understanding insurance law, Rick was able to recover much more compensation and provide for his future medical and financial needs.

Although Rick’s case turned out successful, I cannot help but think of all of the other accident victims who decided not to consult with a lawyer before accepting a “final” settlement offer from the defendant’s insurance company.  For every case like Rick’s, I bet there are at least a few hundred similar cases where the accident victim likely recovered much less compensation than what was possible because they did not elect to consult with an experienced personal injury lawyer. 

Please, if you have been seriously hurt in an accident caused by someone else, you should at the very least consult with experienced counsel to make sure you are getting the best result possible.

You should understand how insurance works in Washington State. There are two types of auto insurance systems in the United States, and which one you use usually depends on where you live. Most states are at-fault or tort states.  This means the at-fault driver is legally responsible for any injuries and financial costs caused by the accident. The other driver’s insurance policy is supposed to pay those costs, but you may have to sue the other driver to get payment if the facts are in dispute.

In Washington we also have no-fault auto insurance coverage. If your insurance policy has coverage called Personal Injury Protection (PIP), your own insurance company is required to pay for certain damages (like medical bills and lost wages) regardless of who’s at fault for the accident.  This is important coverage because it requires your carrier to pay for these expenses when they are due.  However, this coverage is limited by the terms of your insurance policy. 

Most people who have PIP will have coverage of at least $10,000, but some may have the maximum of $35,000 (as of the date of this writing).   Also, most PIP policies will only pay up to 85% of your lost wages starting two weeks after the accident.  You should read your policy carefully to understand what other limitations and/or restrictions may apply.  If you have questions you should speak to an experienced personal injury lawyer.

After you receive medical care and recover from the immediate effects of your accident, one of the first things you should do is call your insurance company. You will probably also have to call the other driver’s insurance company and let them know that an accident has occurred and a claim will be pursued. You should make that call as soon as you reasonably can, because waiting too long might make it look to the insurance company like you are exaggerating your injuries. Calling quickly is also part of your obligations under the contract you signed with your insurer.

This first call should be fairly short. Its purpose is only to give the insurance adjuster the basic facts about your accident and the information for the other driver’s insurance company, if there is one. In fact, during the call, the insurance adjustor on the other end should never ask to record you or ask you to sign anything, especially in exchange for money. If you get this kind of request, you may be dealing with a dishonest company; you should politely decline and call a lawyer as soon as possible.

During your initial call, the insurance adjustor will probably ask you who was at fault for the accident or who was to blame. She might also ask if anyone got a ticket. If this is disputed or you truly are not sure, just stick with the facts.

During this first conversation (or any other conversation) with an insurer, it is important to avoid apologizing or accepting blame just to be polite, because that could be taken as an admission of guilt. Also, if you were knocked unconscious or taken to the hospital, you may not have gotten the full story. One way to get it is to obtain a copy of the accident report made by the police (if one exists). If they will not release it, your insurance adjustor can get it for you and use it to start your claim. 

KOMO TV reports that the boy’s name is Noah B. Bishop.  The King County Medical Examiner has stated the cause of death was cerebral and cerebellar laceration and contusion, subarachnoid hemorrhage – bleeding between brain and surrounding tissues, brain stem hemorrhage and multiple skull fractures. The death was ruled accidental.

The boy’s injuries are severe.  The news reports do not state how the boy received such serious injuries while in the care of a reputable medical clinic.  The spokesperson for the University of Washington has declined to explain how the injuries occurred, but did state that an investigation has begun.  This suggests that the hospital knows it may have committed negligence which was a cause of the boy’s injury.

Usually when this type of tragic accident occurs, and no explanation is given by the hospital about how the injuries inflicted, a claim for negligence will often exist.  The term ‘negligence’ is defined as the failure to exercise ordinary care in similar circumstances.  Based on similar cases that I’ve handled involving children, it appears that the boy may have been dropped onto the floor and landed on his head and suffered a traumatic brain injury or TBI. A young child of this age does not have to be dropped from a high distance to cause the type of injuries that were found to have caused this boy’s death.

There are important differences associated with representing child injury claims.  These differences are explored in depth in my book Little Kids, Big Accidents.  I offer the book for free to parents of injured children.

If it is determined that the University of Washington’s negligence caused the boy’s injuries, then the parents will also have a wrongful death claim against the hospital for the loss of their boy.  There are special statutes that apply to parents who have lost a child due to another party’s negligence.  Wrongful death claims are complicated, especially when it deals with the death of children.  You can learn more about wrongful death cases by visiting the Davis Law Group website and DLG’s wrongful death page.

I want to offer my sincere and heartfelt sympathies to the parents of this young boy.  This type of tragic loss can devastate even the strongest of families.  I also have a young boy of similar age, so I cannot imagine the level of pain and grief these parents must be experiencing.  I hope they can get the answers of what happened and why, and at least start to heal from this painful experience.

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. 

The citation will carry a fine of $124.  Only 4 other states and the District of Columbia have made using a cell phone while driving a primary offense.

Senator Eide states that driving while talking on a cell phone is equivalent to driving drunk.  She states that studies show that a person who uses a cell phone takes his eyes off the road for at least 6 seconds (about the distance of the length of a football field).  Senator Eide also references other studies that show that a cell phone user is 4 times more likely to cause an accident than a driver who is not using a cell phone.

Not everyone agrees with the bill. Senator Don Benton (R-Vancouver) says that using a cell phone is no more of a distraction than someone putting on make-up, or eating, or drinking coffee while driving.  So do we include every one of these distracting behaviors in the bill too?  Senator Benton suggests that this bill is just another hidden “tax” designed to make more money for the government.

On the one hand, I’m all for passing legislation that will increase public safety and reduce accidents.  But I have to question whether this new law will have any significant effect on getting people to avoid using their cell phones in their cars.  I’ve spoken to a few Washington State Patrol officers who say that the current law has not changed how often drivers use their cell phones.  Will this new law then make a difference?  Tough to say.

On the other hand, I do understand Senator Benton’s argument.  The bill is meant to reduce just one type of behavior that causes a distraction.  Should we then include every other behavior that also causes drivers to become distracted?  Seems like a ridiculous slippery slope to me.  I don’t like the government micro-managing my life, and using numerous opportunities to fine drivers to create revenue.

Perhaps we should pass a law that imposes a heavy fine or even jail time on those drivers who do cause an accident while using a cell phone.  It might be tough to prosecute since you may not know in most accidents that the at-fault driver was using a cell phone.  But I think it’s worth considering.

I do know that using a cell phone while driving is an added distraction that increases the likelihood of an accident.  But this behavior is likely no different from any of the other distraction-causing behaviors that drivers commit every day like putting on make-up, eating, drinking, or even talking to a passenger in the vehicle.

There are no hard and fast rules to tell you whether the claim is small.  Generally, a small claim is one where (1) the accident is minor or the property damage is small or insignificant, (2) the injuries are minor and/or they are not considered permanent, (3) the medical treatment lasts no longer than a few months, and (4) the medical bills do not exceed a few thousand dollars.  If one or more of these factors exist then there’s a good chance the claim is small enough to settle on your own.

WARNING: By settling the case on your own, you accept the risk that you may make a mistake that could irreparably damage the value of  your claim.  Some mistakes cannot be “undone” so getting a lawyer involved after the fact may be of little benefit.  You must know that there are many cases that should involve an attorney, particularly if the accident was severe, the injuries are permanent and/or significant, and the special damages (or medical bills and lost wages) are many thousands of dollars.  Many people don’t want to hire a lawyer so they can “save money.”  But the money that is lost due to a mistake made during the claims process could be much more significant than the expense of hiring an attorney.  You should first seriously consider the risk of settling your own claim before proceeding in this way.

Here are some general guidelines for those people who have a small personal injury claim and wish to settle the case on their own:

1. Collect all evidence to support your claim.  This may include the police report, photographs of the vehicle(s), paystubs, tax returns, medical records and bills, property damage estimates, witness statements, etc.  The insurance company relies on documentation to support the claim.  If you don’t have documentation to support your claim or some of the damages being requested, the insurance adjuster will refuse to consider it.
2. Communicate in writing with the insurance company.  You should keep track of your communications with the adjuster in writing.  Be brief and to the point.  Refrain from talking about the merits of your claim until you are ready to settle.  Written communication leaves a paper trail that may be beneficial to you if there’s a dispute about was said or not said.
3. Focus on your medical treatment.  If you’re hurt, get medical treatment.  Do not skimp, or miss appointments.  Do not try to settle the claim until your medical treatment has concluded.  Do not discuss your medical treatment with the adjuster.  He or she will receive your medical records soon enough.
4. Prepare a thorough settlement demand package.  See No. 1.  With your documentation, you must provide a comprehensive settlement demand package which includes copies of all items that support your claim for damages.  This includes your medical records and bills, collision report, property damage estimates, photographs (of injuries and/or vehicles), wage loss documentation (paystubs and/or tax returns), witness statements, etc.  If you are claiming other expenses, then you should provide receipts or other written documentation to prove that these expenses or costs or damages have been incurred.  Your settlement demand should contain a brief description of the accident, and why the other party was negligent or at fault.  Your damages should be itemized and explained.  If you are claiming general damages, or pain and suffering, then you should describe the facts and circumstances to support this part of the claim.  Statements from family members and other people familiar with your life and the way your injuries have affected you can be persuasive.
5. Be prepared to negotiate.  Settling a personal injury claim takes skilled negotiation.  It is not unlike the process of buying a car because typically there is back and forth negotiation about the value of the claim and how much of a settlement you’re prepared to accept and how much the carrier is prepared to pay.  If your settlement demand package is thorough, well-organized, and amply supported by pieces of documentation, then you will have enough leverage to negotiate a favorable recovery.

Remember, not every case needs a lawyer.  Usually the very small personal injury claims can be resolved without the assistance of a lawyer.  If you don’t know whether your case is small or large, than by all means speak to a reputable personal injury lawyer.  Most lawyers or their staff in this field will at least speak to you over the phone and advise you whether you can benefit from the assistance of attorney or not. 

Good luck.

The National Association of Insurance Commissioners gathers consumer complaint information from state insurance regulators.  According to NAIC, more than 50% of the complaints received in 2009 were for (1) the denial of a claim, (2) the unreasonable delay in resolving a claim, and (3) unsatisfactory settlement offers by the insurance company.

We here at the Davis Law Group often are asked for the names of the most reputable auto insurance companies to do business with.  Unfortunately, this question seeks information that is often a moving target.  A company that may have a good reputation now may not fare so well six months from now.

When searching for an auto insurance company, most people are focused on the cheapest premium.  But many consumers find out after an accident that the coverage they thought they had, really never existed, or if it did exist, the coverage was woefully inadequate.  Or the accident victim finds out that their insurance company is incredibly difficult to deal with when it comes to filing and settling a claim, particularly if the value of the claim is very high (i.e., worth more than $25,000).

When shopping for an auto insurer, you should be very concerned if a company you’re considering has a lot of complaints in the claims handling areas. Go to NAIC and research the number of complaints for your auto carrier.  Focus on the complaint ratio, which shows the ratio of the company’s U.S. market share of complaints to the company’s U.S. market share of premiums for a specific policy type (the ratio puts the complaint figures into perspective based on the size of the insurer’s business, so larger insurers aren’t penalized for having more complaints).

If the national median complaint ratio is 1.00 and the ratio for the company you’re considering is 2.00, for example, that should be a big red flag. Also look at the complaint trend report to see whether the company’s complaints have been increasing or decreasing over time.

For more information on how to check an insurance company’s complaint record, go to the Kiplinger Report.