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 and personal injury case and its proceedings.)

White 's Lien Amount Must be Reduced by $10,682.58, Which Will Directly and Exclusively Benefit Mr. Black, Not his Counsel.

Mr. Black is legally obligated, based on his "Retainer Agreement (Contingent Fee)" with the XYZ firm to pay that firm 40% of his recovery. In addition, that agreement requires him to pay costs for the prosecution of this action. Those amounts will be deducted from the $100,000 settlement amount.

But White then proposes deducting its full workers' compensation lien of $23,717.22, from what Mr. Black has left from his $100,000 recovery, despite that White did nothing that effectuated that recovery amount. If White is permitted this unreasonable deduction, that will mean money coming from Mr. Black's pocket. In other words, Mr. Black will walk away with considerably less -- only about $31,000. This is completely inequitable, which is why California law requires an allocation to be made.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff proposes that White's lien be reduced by a total of $10,682.58. Plaintiff has calculated the reduction by (1) deducting 40% of the lien amount as White 's equitable share of attorney's fees ($9,486.88); (The 40% calculation is based on the percentage of attorney's fees owed by Mr. Black under his retainer agreement with his counsel.), and (2) deducting 24% of the costs amount as White's equitable share of costs ($1,195.70). (The 24% calculation is based on the fact that the workers' compensation lien amount of $23,717.22 is 24% of the total settlement amount of $100,000.) The sum of $9,486.88 and $1,195.70 equals $10,682.58.

Continue reading "Sacramento Car Accident Victim Must Fight Employer For Part Of His Settlement, Part 8 of 8" »

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

It was plaintiff's counsel -- the XYZ firm, and particularly Ms. Brown -- whose sole efforts led to the successful settlement of this action for defendants' automobile policy limits.

It was the XYZ firm that did all of the discovery in the case; it was the XYZ firm that collected and subpoenaed all the medical records and other records dealing with liability and damages issues. It was the XYZ firm that interviewed witnesses; and it was the XYZ firm who took depositions of key witnesses and defended the depositions taken by defendants' counsel. It was the XYZ firm that calculated Mr. Black's past and future lost wages as well as medical expenses, further ensuring that all of his medical expenses were accounted for in the damages calculations.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It was the XYZ firm that arranged the mediation, and filed a mediation brief that laid out all the factual detail supporting Mr. Black's claims regarding defendants' liability for the collision and for Mr. Black's damages. It was the XYZ firm that rehabilitated the testimony of Dr. Lee regarding the need for future surgery for Mr. Black, based on medical evidence that firm had collected and which Ms. Brown presented to Dr. Lee during his deposition. It was the XYZ firm that made the section 998 demand before White ever even intervened in the case, and it was that demand that the defendants, following and as a result of all the work the XYZ firm had done, accepted.

Continue reading "Sacramento Orthopedic Surgeon Finds Damage To Car Accident Victim, Part 7 of 8" »

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

To the same effect are Quinn v. State of California, 15 Cal. 3d 162, 167-69, 124 Cal. Rptr. 1 (1975) (holding that an employee who obtains a judgment in a third-party action that creates a fund from which the compensation insurer's lien is satisfied, in whole or in part, can require the passive beneficiary to bear the fair share of the litigation costs, including attorney's fees); Hartwig v. Zacky Farms, 2 Cal. App. 4th 1550, 1555-56, 3 Cal Rptr. 2d 828 (1992) (holding that merely retaining separate counsel or filing a complaint in intervention or a lien, with little else, does not satisfy the standard of "active participation"; there, the declaration offered by the employer's workers' compensation insurer's attorney was insufficient to support a finding that the lienholder had actively participated in the case); and Kindt v. Otis Elevator Co., 32 Cal. App. 4th 452, 458-60, 38 Cal. Rptr. 2d 121 (1995) (same essential holding).(These cases were decided under section 3856(b), Cal. Lab. Code, referring to judgments rather than settlements. But situations arising under sections 3856 and 3860 must be treated alike. E.g., Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 705-06, 709, 145 Cal. Rptr. 210(1978).)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

These cases all hold that where an employer or his workers' compensation insurer retains separate counsel, files a complaint in intervention and even undertakes a litigation task or two, that participation is nominal and the intervenor becomes a passive beneficiary of the common fund.

Continue reading "Workers' Compensation Claim Becomes Issue In Sacramento Car Accident Case, Part 6 of 8" »

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

ARGUMENT

White's Lien Must be Reduced Because Plaintiff's Counsel Alone Successfully Prosecuted This Action.

While an employer or its workers' compensation insurer may seek from any settlement between an injured employee and a third-party tort-feasor, reimbursement for compensation he has paid to the employee, that reimbursement is reduced by "the reasonable expenses incurred in effecting such settlement, including costs of suit, if any, together with a reasonable attorney's fee to be paid to the employee's attorney, for his services in securing and effecting settlement for the benefit of both the employer and the employee." See Cal. Lab. Code, § 3860(b) and (c).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This principle applies to the situation where, as here, settlement is effectuated ... solely through the efforts of the employee's attorney. See Cal. Lab. Code, § 3860(c).

In Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 702-03, 709, 145 Cal. Rptr. 210 (1978), the court of appeal ruled that this principle applies even where the employer or his workers' compensation insurer has retained separate counsel as long as the settlement, which represents a common fund from which the lien is paid, is the result of the efforts of the plaintiff's attorney.

Continue reading "Attorney's Fees At Issue In Sacramento Car Accident Lawsuit, Part 5 of 8" »

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

The XYZ firm also submitted a 16-page mediation brief including all of the facts supporting plaintiff's claims of liability and damages against the defendants. Prior to the mediation, the XYZ firm also made a section 998 demand for the defendants' automobile policy limits of $100,000. The firm offered evidence at the mediation that Mr. Black's economic damages totaled $124,000 and his total damages approached $250,000. At the mediation on April 8, 2010, the defendants' counsel agreed that if the XYZ firm's damage calculations were correct and if Dr. Lee would confirm under oath the information about medical damages and causation the firm had collected and presented at the mediation, defendants would accept plaintiff's statutory offer to settle the case for their auto policy limits of $100,000.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants took Dr. Lee's deposition on May 13, 2010, which Ms. Brown personally attended. While being questioned by the defense attorney, Dr. Lee was unable to give an opinion related to plaintiff's need for future surgery. Ms. Brown then presented Dr. Lee with exhibits she had prepared depicting the MRI findings, asking him a series of questions relating to Mr. Black's injuries, whether the accident was the causative factor for those injuries, as well as his need for future surgery. She was able to rehabilitate Dr. Lee's testimony related to questions asked by the defense attorney at the beginning of Dr. Lee's deposition.

Continue reading "Sacramento Employer Settles For Car Accident Caused By Its Employee, Part 4 of 8" »

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

The XYZ firm also retained a nurse to prepare a medical chronology; an investigator to obtain a statement from Sandy Silverberg, who had witnessed the accident; an accident reconstruction and bio-mechanical consultant; and a radiologist. The firm prepared Mr. Black for his deposition and attended that deposition; prepared for and attended the deposition of Ms. Silverberg; and prepared for and took the deposition of defendant Melinda Smith.

The XYZ firm prepared two case management conference statements and attended two case management conferences, one in October 2009 and the other in May 2010.

The XYZ firm set up the mediation and retained the mediator.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Prior the mediation and in preparation for it, Ms. Brown met with Dr. Daniel Lee, M.D., the orthopedic surgeon who had operated on Mr. Black's left shoulder, to collect further evidence for the mediation on the issue of causation and damages. The XYZ firm also prepared numerous calculations regarding Mr. Black's past and future wage losses, his billed amount of medical expenses and his future medical expenses for the mediation.

Continue reading "Witnesses Saw Defendant Truck Driver Slam Sacramento Man's Car, Part 3 of 8" »

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

PLAINTIFF'S COUNSEL SOLELY LITIGATED THIS CASE TO A SUCCESSFUL CONCLUSION; WHITE'S INVOLVEMENT WAS NOMINAL

Plaintiff's counsel, the Law Offices of XYZ, and particularly its principal, Marcia Brown, were solely responsible for securing the $100,000 settlement from defendants in this case. White did nothing in that regard, and it was otherwise only nominally involved in the case. It was the XYZ firm that, in May 2009, filed suit against the defendants on behalf of Mr. Black who had suffered serious injuries when defendant Melinda Smith ran a red light and slammed into his truck while he was in the course and scope of his employment. This is a reference to the Declaration of Marcia Brown, dated July 19, 2010, filed in support of this motion.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It was the XYZ firm that thereafter propounded copious discovery (form interrogatories, special interrogatories, document requests and requests for admission) on the defendants, and thereafter reviewed defendants' discovery responses. Plaintiff's firm also responded to defendants' copious discovery requests (general interrogatories, special interrogatories, document requests, and requests for admissions).

The exhibits referred to are attached to Ms. Brown's declaration. Exhibit 1 is a time line showing the progression of the suit and the XYZ's firm work on it.

Continue reading "Sacramento Driver's Truck Slammed By Man Who Ran A Red Light, Part 2 of 8" »

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

Plaintiff Owen Black's Memorandum of Points and Authorities in Support of Motion for Allocation of Attorney's Fees and Costs Related To His Automobile Accident Case (Cal. Lab. Code, § 3860(c))

Motion for an equitable allocation of attorney's fees and costs under section 3860(c) of the California Labor Code.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

INTRODUCTION

Plaintiff's counsel is like the title character in the story, The Little Red Hen. Like the little red hen who, all on her own, found the grain of wheat, planted it, tended it, and eventually mixed it with other ingredients to produce a delicious cake, plaintiff's counsel took every step from start to finish, solely and successfully prosecuting Mr. Black's case against the defendants who had seriously injured him in a car accident.

Plaintiff's counsel filed the action; undertook all the discovery, including preparing for, taking, defending and attending depositions; collected all of the pertinent documents, including medical records, witness statements and accident reports; retained the experts; scheduled and attended the mediation; produced a series of damages calculations and filed a mediation brief laying out the factual basis for plaintiff's claims regarding defendants' liability for the car accident and for his damages. The case settled when defendants accepted plaintiff's section 998 demand of $100,000, based on the evidence solely and exclusively gathered by plaintiff's counsel.

Continue reading "Sacramento Man Seriously Injured In Car Accident, Part 1 of 8" »