Sacramento Car Accident Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

LIABILITY
Paul Austin does not concede liability, and at trial he will provide evidence in support of all available affirmative defenses. California is a comparative negligence state and Ms. Smith had a duty to take reasonable care to prevent harm to herself. This is especially true on what was a day of heavy rain and where the intersection lights were not operating at a major intersection. Ms. Smith was in a comfortable zone just three blocks from her residence. Whether Ms. Smith was appropriately attentive to the road conditions is for a trier of fact to determine. Mr. Austin contends he is liable only for a reasonable comparative portion of the damages reasonably caused by the accident.
LEGAL ISSUES
The primary legal issue in this matter is that plaintiff's injury did not result in the need for surgery. The defendant will present evidence that surgery was unnecessary and the surgical procedures that were performed were below the applicable standard of care. Therefore, any medical conditions caused by plaintiff's surgeries were not proximately caused by the accident.

This case involves distinct and divisible injuries. Plaintiff suffered a soft tissue injury that would have healed with conservative treatment. Instead, she sought treatment with Dr. John Lee, a neurosurgeon, whose negligent subsequent medical care served only to aggravate the plaintiff's symptoms. As a subsequent tortfeasor, and because California is a comparative negligence state, Dr. Lee, as with any other subsequently treating negligent healthcare provider, is liable to the plaintiff for the enhanced injuries that he has caused. (See: Henry v. Superior Court (2008) 160 Cal.App.4th 440.) As such, if he is liable, the defendant is entitled to a determination by the trier of fact to an apportionment of any liability. (Id.; Civil Code § 1431.2.) CACI Jury Instruction 406 reads in pertinent part:

Continue reading "Sacramento Accident Victim Fights Defendant Over Back Treatment, Part 4 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

STATEMENT OF FACTS cont.

Dr. Lee then, on November 17, 2007, performed his experimental provocative
cervical discogram C5-6 and microdecompressive cervical discectomy C5-6 pronouncing
it a success. He then proceeded - is the very same surgery - to perform a provocative
lumbar discogram and microdecompression lumbar discectomy of L5-S 1 under magnification. It absolutely contradicts accepted medical protocol to perform both a cervical discectomy
and a lumbar discectomy at the same time. The impact on the human body is considered to
be too traumatic. Proper and accepted medical procedure would be to perform the
cervical procedure first because the neck has a tendency to heal more quickly. Then,
only if appropriate, perform a lumbar discectomy no sooner than at least one month after
the cervical surgery - at the earliest.

One obvious drawback of Dr. Lee's style is that he nicked a nerve during Ms. Smith's experimental lumbar surgery that not only caused her to have a spinal migraine that caused her to return three days later for a blood patch to remedy her unnecessary pain, but also Ms. Smith left treatment with Dr. Lee with severe pain radiating into her left leg that never before had existed. Not only was Dr. Lee's surgery poorly diagnosed, unnecessary and unrelated to the accident, but it also caused Ms. Smith a later second lumbar surgery by another neurosurgeon to redo the discectomy by Dr. Lee.

Continue reading "Plaintiff In Sacramento Car Accident Undergoes Multiple Back Surgeries, Part 3 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

STATEMENT OF FACTS cont.

A cervical MRI was conducted on August 4, 2007, by Tower Imaging
Center which showed that her cervical spine was normal except for a combination of
spurring and a 2 mm left paracentral disc protrusion slightly indenting the anterior cord
and causing mild left-sided canal narrowing at C5-6. There was no neural foraminal
narrowing. At C6-7, the MRI showed mild degenerative disc disease with a small posterior
spur with mild spinal stenosis. There was no neural foraminal narrowing.

On that same date, the Tower Imaging Center also performed an MRI of
Ms. Smith’s lumbar spine which showed no disc protrusion or extrusion, spinal stenosis,
or neural foraminal narrowing at any lumber spine level. There was a mild disc dessication
at L5-SI.

On August 8, 2007, Dr. Davies prescribed a course of pain management. Ms. Smith
was referred to Peter Day, M.D. at the Interval Pain Management Group. After
evaluation, Ms. Smith was treated with a cervical epidural steroid injection on September
15, 2007 and another on October 13, 2007. After both treatments, she reported temporary
relief. On September 5, 2007, she presented to Jerry James, P.A. at Conservative
Care Medical Group. Ms. Smith also began the extended use of Skelaxin, Celebrex and Tramadol that, with the addition of other prescribed medications, continues until today. Ms.
Smith's accident-related injuries were healing and would have healed under the
conservative treatment she was receiving.

Continue reading "Auto Accident in Sacramento Leaves Woman With Back Injury, Part 2 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

DEFENDANT’S TRIAL BRIEF

STATEMENT OF FACTS

This action arises from an automobile versus SUV accident. On January 2, 2007, Melissa
Smith was traveling eastbound on Arden in her SUV. Paul Austin was
traveling northbound on Eastern in his passenger car. There was a heavy rain and
the traffic-control lights at the intersection were not working. Temporary four-way stop
signs had not been deployed. Ms. Smith proceeded to enter the intersection. Mr. Austin
was northbound on Eastern traveling at approximately 25 mph. He saw no traffic and
continued to proceed into the intersection. Neither driver saw the other vehicle until
immediately before impact. Despite braking, Mr. Austin's car struck the plaintiff's SUV
in the passenger-side doors approximately in the middle of the vehicle.

Ms. Smith immediately jumped out of her vehicle and began yelling at Mr. Austin.
Neither party received a citation. Neither party received emergency medical treatment. Ms.
Smith proceeded to drive her vehicle to her nearby residence approximately three blocks
away. Two days later Ms. Smith presented to David Stein, D.C. for evaluation and
chiropractic treatment for seven months.

Continue reading "Sacramento Car Accident Victim Fights Comparative Negligence, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

DAMAGES

Plaintiff claims to have sustained a head laceration requiring several stitches and an injury to his right AC shoulder joint for which he claims he underwent surgery almost two years post-accident on August 8, 2007. Plaintiff has incurred the following medical specials:

- Sacramento Orthopedics & Medical Group $10,985.00

- Roseville Center for Arthroscopic and
Outpatient Surgery $15,120.67

- Roseville Orthopedic Medical Group $1,040.00

- Roseville Fidelity Medical Group $4,405.00

- Roseville Fidelity Medical Group $9.00

- Central Diagnostic Imaging $2,200.00

Based on the foregoing, plaintiff has incurred $33,759.67 in medical specials.

Also, plaintiff claims his bicycle was totaled after the accident. In response to written discovery, he stated he purchased the bicycle for $130.00, however, at deposition he stated he paid $80.00 or $90.00 for the bike. He also claims he missed four days of work and lost $865.00 in earnings.

Continue reading "Sacramento Car Driver Injures Bicyclist In Collision, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

LIABILITY CONTENTIONS

XYZ contends that Plaintiff was the sole cause of this accident.

A bicyclist is subject to all of the same provisions applicable to the driver of a vehicle except for obvious exceptions. Vehicle Code section 21200 (a).

When not otherwise prohibited by the Vehicle Code or local ordinance, bicycles may be ridden on the shoulder of a highway but whether they are operated on the roadway or the shoulder they must travel in the same direction as vehicles. Vehicle Code section 21650.1. A person riding a bicycle on a roadway at a speed less than the normal speed of traffic must keep as near the right side of the curb or edge of the roadway as possible, Vehicle Code section 21202 (a), except when reasonably necessary to avoid conditions that make it unsafe to continue along the right curb or edge. Vehicle Code section 21202(a)(3) [ No person shall ride, operate or use a bicycle, ... on a sidewalk, bikeway or boardwalk in a willful or wanton disregard for the safety of persons or property. ].

In this case, Plaintiff admitted, at deposition, that it was his normal custom and practice to ride his with the flow of traffic. However, he would usually ride on the sidewalk. Yet, on this particular occasion, he chose to ride his bicycle on the north side of the street, in a westerly direction against the flow of eastbound traffic. Certainly, this was a willful decision by the plaintiff to disobey the rules of the road. As such, XYZ contends that plaintiff's willful decision(s) constitutes negligence per se.

Continue reading "Insurance Company Blames Sacramento Bicyclist For Car Accident, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Trial Brief of Defendant-in-Intervention, XYZ Insurance Company

ESTIMATED LENGTH OF TRIAL
Two to three days.

STATUS OF PLEADINGS
This case arises out of an auto versus bicycle accident that occurred at approximately 3:20 a.m. on October 21, 2005, at the intersection of 42nd Street and J Street, in the City of Sacramento.

Defendant, JANE LEE, was driving her 1998 Mercedes-Benz C230 eastbound on 42nd Street and preparing to make a right turn onto J Street. Plaintiff, JOHN SMITH, was riding a bicycle from the opposite direction on the sidewalk of 42nd Street. Plaintiff SMITH rode his bicycle on the sidewalk and across J Street and then directly into the vehicle driven by JANE LEE as Ms. LEE was making her right turn.

Plaintiff, JOHN SMITH, claims that defendant, JANE LEE, negligently operated her vehicle to cause the subject accident and resulted in Mr. Smith's alleged injuries and damages. Defendant, BOB LEE, is the husband of defendant, JANE LEE. Mr. Lee was the registered owner of the vehicle and has been sued accordingly.

Continue reading "Sacramento Bicyclist Struck By Automobile, Part 1 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

SECOND CAUSE OF ACTION cont.

33. The acts of Defendants as alleged herein and above was intended to cause injury to Plaintiffs in that Defendants arbitrarily adjusted the claim in an amount less than what the Policy allowed for without any basis for doing so and without any investigation thereon. Defendants' conduct in this regard was carried on with a conscious disregard of the rights of Plaintiffs.

34. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered and will continue to suffer economic and non-economic damages including, but not limited to, substantial losses of past and future earnings, bonuses, other compensation, and other employment, and unemployment, benefits and job opportunities, plus expenses in an amount according to proof at time of trial.

35. As a direct and proximate result of said unlawful conduct of Defendants, Plaintiffs have suffered, and continue to suffer, mental and emotional distress, including but not limited to, frustration, depression, nervousness and anxiety, and have thereby incurred general damages in a sum in excess of the jurisdiction of this Court, all in an amount according to proof time of trial.

36. As a further direct and proximate result of Defendants' breach of the duty of good faith and fair dealing, Plaintiffs have suffered special, as well as, other damages, in a sum in excess of the jurisdiction of this Court, plus interest, including prejudgment interest, all in an amount according to proof at time of trial.

Continue reading "Breach Of Contract By Sacramento Automobile Insurance Company, Part 6 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

SECOND CAUSE OF ACTION
Breach of Implied Covenant of Good Faith and Fair Dealing
(Plaintiffs against Defendants XYZ and DOES 1-20)

29. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

30. At all times relevant herein, Defendants, and each of them, agreed to act in good faith and deal fairly with Plaintiffs in all matters related to the Policy, and insurance claims arising from losses covered thereunder, including the uninsured motorist and medical expense claims.

31. Said Defendants assumed a special relationship with, and fiduciary obligations to, and agreed to abide by the duties commensurate with these obligations. Nevertheless, Defendants refused and failed to act in good faith and deal fairly with Plaintiffs, and breached said obligations, as set forth more particularly herein.

32. Defendants engaged and continue to engage in an unreasonable course of conduct to further their own economic interests in violation of their contractual and fiduciary obligation to Plaintiffs, including but not limited to:

a) Unreasonable and bad faith failure to make a full and fair settlement of Plaintiffs' medical expense claims;

b) Unreasonable delay and/or denial of payment of policy benefits without proper cause;

Continue reading "Suit Filed For Failure To Pay Sacramento Insureds For Accident With Uninsured Motorist, Part 5 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

FIRST CAUSE OF ACTION
Breach of Contract
(Plaintiffs against Defendants XYZ and DOES 1-20)

23. Plaintiffs incorporate by reference each and every allegation of this Complaint as though fully set forth in this cause of action.

24. On or about December 16, 2008, Plaintiffs made a claim for insurance benefits under the Policy, for personal injuries sustained as a result of the automobile accident described in this Complaint.

25. Under the Policy, Defendant owed duties and obligations to Plaintiffs, including but not limited to, payment of claims for insurance benefits covered under the Policy.

26. Defendant has unreasonably denied and/or delayed settlement and payment of Plaintiffs' rightfully demanded claims. In failing and refusing to provide the benefits under the Policy, Defendant has breached the terms and provisions of the Policy.

27. Plaintiffs have performed all of the terms and conditions of the Policy and have performed all obligations under said Policy, and are rightfully owed their benefits under the Policy.

Continue reading "Automobile Insurance Company In Sacramento Sued For Bad Faith And Unfair Dealing, Part 4 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

BRIEF FACT SUMMARY cont.

16. On or about April 13, 2009, Plaintiffs again requested an explanation for Defendant's denial and unreasonable delay in settling Plaintiffs' claims. At the same time, Plaintiffs submitted a demand for arbitration.

17. On April 30, 2009, Defendant sent a response to Plaintiffs' April 13, 2009 demand, by making an unreasonably low settlement offer. Defendant then represented that the matter would be sent to Defendant's counsel to consider Plaintiffs' demand for arbitration, and said counsel would contact Plaintiffs shortly.

18. Subsequently, Plaintiffs relied on Defendant's representations that the matter would be reviewed by its counsel, and communicated to Defendant that they considered compelling arbitration, but would wait for further communication from Defendant.

19. However, on May 13, 2009, Defendant again corresponded with Plaintiffs, not by way of counsel, but only to communicate that a new claims representative was assigned to handle Plaintiffs claim. Instead of forwarding the matter to counsel as Defendant represented, it merely assigned a new representative to the matter.

Continue reading "Sacramento Plaintiffs File Action Against Insurance Company Regarding Uninsured Motorist Coverage, Part 3 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

BRIEF FACTUAL SUMMARY
Plaintiffs are informed, believe and thereon allege the following facts:

8. On or about June 19, 2007, Plaintiff Anna A. and Defendant XYZ entered into a written contract of motor vehicle bodily liability insurance which included provisions for bodily injury damages incurred by uninsured motorists. Said contract is titled Interinsurance Exchange of the XYZ Insurance Company Policy (hereinafter the "Policy" ).

9. Pursuant to Insurance Code §11580.2(b), as well as the Policy, each and every Plaintiff is an insured and entitled to benefits under the Policy.

10. The Policy provided coverage for a 2004 BMW 328i (hereinafter "Vehicle" ), and provided for uninsured motorist in the amount of $30,000 perperson, $60,000 each occurrence, with medical payment benefits of $5,000 per person.

11. On or about September 3, 2007, Plaintiffs were involved in an automobile accident due to the fault of an uninsured motorist. Each and every Plaintiff suffered bodily injury as a result of the accident. Consequently, Plaintiffs began medical treatment.

Continue reading "Bad Faith Insurance Claim By Injured Sacramento Motorists, Part 2 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Complaint for Damages: 1) Breach of Contract; and 2) Breach of Implied Covenant of Good Faith and Fair Dealing
GENERAL ALLEGATIONS
1. Plaintiff ANNA A. (hereinafter "Anna" ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California.

2. Plaintiff SUZY B. (hereinafter "Suzy" ) is, and at all times herein, was an individual and a resident of the County of Sacramento, State of California, and is one of Anna's daughters.

3. Plaintiff VICKIE C. (hereinafter "Vickie" ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California. Vickie is also a daughter of Anna. Unless specifically referred to by name, each of the above mentioned plaintiffs will be collectively referred to herein as Plaintiffs.

Continue reading "Sacramento Family Sues Auto Insurance Company, Part 1 of 6" »