Sacramento Car Accident Lawyer Blog

The recent troubles facing Toyota automobiles in North America affect not only the owners of its vehicles, but also those of us sharing the roadways with the defective and potentially dangerous cars.

Toyota dealers resumed selling vehicles Thursday that were pulled from the sales lot to address sudden-acceleration problems as the automaker said lost sales and a series of related recalls would cost $2 billion.

That recall price tag would be one of the most expensive in automotive history, said auto information company Edmunds. com.

Also, the California state assembly reacted to Toyota Motor Corp.'s safety recalls and its decision to shutter the state's last auto manufacturing plant by voting Thursday to stop buying Toyota cars for use by lawmakers when they're in Sacramento. The Assembly Rules Committee voted to resume a 2003 policy of buying only U.S.-made cars for its 130-vehicle fleet.

Toyota stopped sales of eight models -- including its top-selling Camry and Corolla -- on Jan. 26, saying the gas pedals could get stuck and cause runaway acceleration. The automaker also shut down production of the vehicles for a week while it examined how to fix the problem, which it attributed to wear on the pedal system.

"We now have more than enough parts at dealers to take care of the flow of repairs. Dealers may sell a new car if the repair is made," said Mike Michels, a Toyota spokesman. "There is no single point in time when the stop sale would be lifted. It will be car by car."

Continue reading "Toyota Recall And Accidents Impact Sacramento Drivers" »

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

Here, Defendants are not citing any particular problem with the expert testimony and are asking the Court to impose a very broad order not mandated by either C.C.P § 2034 or case law. Indeed, in Meyer v. Cooper, (1965) 233 Cal. App. 2d 750, 754, a case cited with approval in Kennemur, the court stated as follows concerning the scope of required deposition testimony:

The party who is examined is required to answer fairly all proper questions which are put to him but he is under no obligation to volunteer information or to disclose relevant material matters which are not asked for. In this case, Dr. Brown and Dr. Smith testified in their depositions as to their observations and opinions and they should not be limited by defense counsel's failure to conduct a more thorough deposition, as is common in a personal injury case.

DEFENDANTS' MOTION IS PRECISELY THE TYPE CRITICIZED BY THE COURT IN KELLY VS. NEW WEST FEDERAL SAVINGS

An important recent case on in limine motions, Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, addressed itself to precisely this type of motion and expressly found that such motions are not proper. The Court stated as follows at pages 670-673:

[M]any of the motions filed by Amtech were not properly the subject of motions in limine, were not adequately presented, or sought rulings which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses. For example: MIL No.7, previously referred to, sought to limit the opinions of plaintiffs' experts to those rendered at deposition and in written reports. Again, there was no supporting evidence to suggest what opinions had been rendered at the depositions, leaving the court and the parties to guess what opinions during trial may be included within the scope of the ruling.

Continue reading "Car Accident Victim From Sacramento Catastrophically Injured, Part 4 of 4" »

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

THE AUTHORITIES CITED BY THE DEFENSE ARE NOT APPLICABLE TO THE FACTS OF THIS CASE

Defendants' reliance on Kennemur v. State of California, (1983) 133 Cal.App.3d 907 is misplaced. Even a cursory review reveals the case to be inapposite.

In Kennemur, the plaintiff's expert, Dr. Mitchell, was deposed on three separate occasions over a six-day period by the defendant The witness was specifically asked whether he was going to testify on accident reconstruction. He specifically stated that he was not and would leave that to a different expert He said that he was limiting his testimony to the stability of the automobile involved in the accident. (Id. at 912.) At the second session of his deposition, he was again asked a similar question and gave a similar answer. In the third session of his deposition, he was asked if he had done any further investigation as to the accident reconstruction and he specifically stated that he had not.

The issue before the Court was not whether Dr. Mitchell could testify to areas into which opposing counsel had failed to delve but rather whether he could testify on accident reconstruction issues abut which he was specifically asked and had stated he had no opinion.

Continue reading "Sacramento Auto Accident Victim Battles Experts, Part 3 of 4" »

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

In addition, Defendants' blanket and vague Motion in Limine is inappropriate. They have not set forth or highlighted any specific testimony they seek to exclude. As set forth in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, Motions in Limine which are declaratory of existing law or would not provide any meaningful guidance for the parties or witnesses are inappropriate. Id. at 670.

Further, the defendants have inaccurately claimed that they have not been provided with Dr. Smith's raw data. This is simply not the case; Plaintiff's counsel has confirmed that Defendants' expert, Dr. White, has been in receipt of said raw data since October 19, 2005. Consequently, as set forth herein, Defendants' Motion is inappropriate and should be denied.

THE DEFENSE INTERPRETATION OF THE LAW WOULD REWARD DEFENDANTS FOR TAKING INSUFFICIENTLY THOROUGH DEPOSITIONS

Defendants are asking the Court to preclude an expert from saying anything that he has not already said in his deposition. This is clearly contrary to the law and would create a possible loophole in the expert discovery statute. A defendant would simply have to ask very few questions and thereby block the expert from testifying about anything other than what he was asked. Surely the Defendants cannot possibly be asking the Court to make such a ruling in such a horrific personal injury case.

Continue reading "Sacramento Man Suffers Brain Injury In Car Accident, Part 2 of 4" »

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

This Opposition will be based upon this Notice, the attached Memorandum of Points and Authorities, any supplemental briefs submitted on the issues, as well as on the pleadings, papers, files, and records in this matter, and upon such other further documentary and oral evidence as may be presented at the hearing on this matter.

(1) Plaintiffs' experts are allowed to respond to the opinions given by Defendants' experts, especially where the Defendants' experts were deposed after the Plaintiffs' experts; and

(2) Counsel should be allowed the right to present all relevant evidence which will assist the jury. There is no basis for a restriction based on an abstract in limine ruling.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff opposes the Motion in Limine #1 submitted by Defendants to the extent that it seeks to exclude testimony of Plaintiffs' experts that either the Defendant did not elicit from the expert at the time of deposition, or constitutes comment or opinion regarding the testimony of opposing experts.

California Code of Civil Procedure section 2034(j) governs the exclusion of expert testimony. A Court may exclude testimony of an expert only if a party did not list the witness as an expert, did not submit an expert witness Declaration that complied with the expert information disclosure statute, did not produce the expert's reports, or did not make the expert available for deposition. California Code of Civil Procedure § 2034(j); Bonds v. Roy (1999) 20 Cal.4th 140.

Continue reading "Sacramento Man In Horrific Car Accident, Part 1 of 4" »

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

Thus, the court determined it was proper to place the entire medical charges before the jury, as better evidence of the degree of harm, and effect a post-verdict reduction of damages to account for the difference between the amounts paid by private health insurance and the amounts billed by the health care provider.

Nishihama is not dispositive. To the extent that Olszewski limited Hanif's application to the Medi-Cal context, it implicitly overruled Nishihama's extension of Hanif to the realm of private insurance. Moreover, the Supreme Court reserved the issue in connection with private insurers. In Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595, 611, fn. 16, the Court explicitly declined to reach the question of whether Olszewski and Hanif "apply outside the Medicaid context and limit a patient's tort recovery for medical expenses to the amount actually paid by the patient notwithstanding the collateral source rule."

Regardless of whether this Court agrees with Nishihama, it does not alter the fact that under the collateral source rule the tortfeasor should be precluded from reducing the injured plaintiff's recovery because his or her insurer was able to contract with the health care provider to treat Plaintiff below its normal rates.

Continue reading "Jury's Damage Award In Sacramento Car Accident Case Subject To Court's Scrutiny, 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 automobile accident/personal injury case and its proceedings.)

(More re Medi-Cal payment ruling challenge.)

However, in Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 826-817, the Supreme Court expressed disapproval of restricting a tort victim's medical specials to the amounts paid by Medi-Cal. The Court recognized that the tortfeasor escapes liability for the full amount of the medical expenses he or she wrongly caused. Such a result benefits the tortfeasor at the expense of the blameless provider and harms society as a whole. The Court urged the Legislature to remedy this inequity. Id. at 827. These policy reasons favor following the collateral source rule over the appellate courts' disregard of that rule.

In Nishihama, supra, 93 Cal.App.4th 298, another appellate court extended the Hanif limitation beyond Medi-Cal to private insurance without distinguishing the collateral source rule. In Nishihama, the injured plaintiff'sought recovery of medical expenses which had been paid by her employer-obtained medical insurer (Blue Cross). That insurer in turn had negotiated for reduced rates (i.e. rates below what is ordinarily charged) at the facility where the plaintiff was treated. The jury awarded the plaintiff damages based on what the facility ordinarily charged. In the context of discussing whether the plaintiff could recover damages based on the hospital's ordinary rates, the court first observed:

A plaintiff in a personal injury action is entitled to recover from the defendant tortfeasor, the reasonable value of medical services rendered to the plaintiff, including the amount paid by a collateral source, such as an insurer. As medical expenses fall into the category of economic damages, they represent actual pecuniary loss caused by the defendant's wrong. Id. at 306.

Continue reading "Sacramento Car Accident Victim Fights Reduced Damage Award, 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 automobile accident/personal injury case and its proceedings.)

COURTS DISCUSSING LIEN RIGHTS HAVE IMPROPERLY ERODED THE COLLATERAL SOURCE RULE

While it appears uniform that under the collateral source rule a tortfeasor is not entitled to introduce evidence that the injured plaintiff has insurance for purposes of proving that the plaintiff has not been injured to the extent an insurer has already paid for those injuries, some appellate courts have either directly or indirectly ruled that the tortfeasor is able to introduce evidence of the amount the plaintiff's insurer has paid in order to cap the amount of the plaintiff's recovery. These courts have reasoned that if the insurer has a separate agreement with the health care provider to furnish medical care at a rate below what is normally charged, then that reduced rate becomes the plaintiff's true damages for purposes of fixing his or her recovery.

The first reported case to take this path was Hanif, supra, 200 Cal.App.3d 1635. There, in the context of an action where the injured plaintiff's medical care was paid for by Medi-Cal, the court initially explained:

Preliminarily, we note there is no question here that Medi-Cal's payment for all injury-related medical care and services does not preclude plaintiff's recovery from defendant, as special damages, of the amount paid. This follows from the collateral source rule.
Id. at 640.

However, without any further reference to the collateral source doctrine, the court proceeded to reason:

Continue reading "Sacramento Auto Accident Victim Challenges Medi-Cal Payment Ruling, 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 automobile accident/personal injury case and its proceedings.)

California's Legislature has recognized the collateral source rule by carving very limited exceptions to that rule which are meaningful only if the rule itself exists. For example, Government Code § 985 sets forth a detailed procedure for when a public entity provides collateral services to an injured plaintiff. That section is applicable only where the public entity is a defendant. It allows the court, post-verdict, to consider giving the public entity credit for the collateral source payments, after taking evidence concerning the nature of the benefits and plaintiff's reimbursements obligations.

The statute makes clear that "[a]ny collateral source payment paid or owed to or on behalf of a plaintiff'shall be inadmissible in any action for personal injuries or wrongful death where a public entity is a defendant." The public entity can seek recovery of collateral benefits following a verdict which includes "damages for which payment from a collateral source listed below has already been paid or is obligated to be paid for services or benefits that were provided prior to the commencement of trial..." Id.

Likewise, the Legislature also created a statutory exception to the rule for medical malpractice defendants when it enacted it as an aspect of MICRA (Civil Code § 3333.1, et. seq.). As with the public entity exception, the Legislature crafted a compromise procedure for the evidentiary handling of the exception, and accompanied the change with fundamental changes in the structure of attorney's fees and general damages in medical malpractice cases. Specifically, the MICRA statutes provide the plaintiff an opportunity to introduce a host of relevant and admissible evidence as to the reasonable value of the medical services provided, including not simply the billed charges, but also evidence of the premiums paid to secure health insurance benefits and other evidence of the reasonable value of those services.

Continue reading "Huge Wage Loss At Center Of Sacramento Auto Accident Case, 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 automobile accident/personal injury case and its proceedings.)

THE COLLATERAL SOURCE RULE IS UNQUESTIONABLY THE CONTROLLING LAW IN CALIFORNIA

The collateral source doctrine has been the rule in California since at least 1925. Clark v. Burns Hamman Baths (1925) 71 Cal.App. 571, 575. The doctrine "expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities." Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 10. The California Supreme Court explained the rationale behind the rule: if the tortfeasor were allowed to mitigate damages with payments from plaintiff's insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. The defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance. Id. at 10.

The Court elaborated on the related rule prohibiting the introduction of collateral source evidence, citing to Hrnjak, supra, 4 Cal.3d 725. In Hrnjak, the trial court allowed the defendant in a personal injury action to introduce evidence that the plaintiff had received insurance benefits, asserting the evidence was relevant to the plaintiff's motives in seeking medical help and his credibility as a witness. Id. at p. 728. The Supreme Court held that this ruling was an abuse of discretion under Evidence Code § 352 because [e]ven with cautionary instructions, there is substantial danger that the jurors will take the evidence into account in assessing the damages to be awarded to an injured plaintiff.

Continue reading "Sacramento Man Challenges Damages Ruling In Car Accident Trial, 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 automobile accident/personal injury case and its proceedings.)

RECENT CASE AUTHORITY CONFIRMS THAT THE TOTAL AMOUNT OF A PLAINTIFF'S MEDICAL BILLS ARE ADMISSIBLE

In Olsen, supra, WL 2486789, plaintiff was injured by defendant's motorized wheelchair and incurred over $62,000 in medical expenses. The court granted plaintiff's motion to present the full amount that her providers billed her for treatment and denied defendant's motion to introduce the amount actually paid. After trial, the court reduced the jury's verdict to the amount actually paid on plaintiff's behalf.

The appellate court held that this reduction was in error because there was insufficient evidence of what amount was paid, "written off" and remained to be owed. However, the court further held that the full amount of plaintiff's medical charges was properly presented to the jury, citing Nishihama's explanation that the usual rates billed was a stronger indicator of the extent of a plaintiff's injuries than the specially negotiated rates obtained by an insurance company.

In Greer, supra, 141 Cal.App.4th at 1152-1153, the plaintiff was seriously injured in an automobile accident. His medical bills were $216,000. Plaintiff's employer paid plaintiff's health care providers $132,000, satisfying plaintiff's entire medical tab. Prior to trial, defendant moved in limine to exclude evidence of medical expenses that exceeded the amount paid on plaintiff's behalf to his medical providers.

Continue reading "Court Reduced Sacramento Man's Car Accident Award After Trial, 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 automobile accident/personal injury case and its proceedings.)

Second, Nishihama violates the California Supreme Court decisions of Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 734 and Helfend v. So. Calif. Rapid Transit Dist. (1970) 2 Cal.3d 1, 4 which have unequivocally confirmed the application of the collateral source rule in California. To rule otherwise would ignore the historical importance of the collateral source doctrine and the principle of stare decisis. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ( Under doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction; decisions of Supreme Court are binding upon and must be followed by all California state courts... Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court .).

Third, even defendant's expert Lee Brown testified that although he intends to testify that the reasonableness of the bills is merely the adjusted amount accepted by the facilities, he has no way of knowing for sure what that amount is. Consequently, there is no basis to limit the introduction of the total amount billed to the Plaintiff.

Fourth, the prejudicial effect of introducing reduced medical bills to the jury would undermine Plaintiff's claim for personal injury damages. If, for example, the jury is informed that Plaintiff's medical bills are substantially less than the $278,000 which were charged by his health care providers, that fact may diminish Plaintiff's general damages claim in the jury's eyes and reduce his general damages award.

Continue reading "Auto Accident Leaves Sacramento Man With Huge Damages, 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 automobile accident/personal injury case and its proceedings.)

PLAINTIFF’S TRIAL BRIEF REGARDING INTRODUCTION OF HIS MEDICAL BILLS
MEMORANDUM OF POINTS AND AUTHORITIES

SUMMARY OF FACTS AND ARGUMENT

This is an admitted liability case.

Plaintiff Billy White’s vehicle was rear-ended at high speed by defendant Thomas Smith’s vehicle as Mr. White was stopped at a lighted intersection in Sacramento. Plaintiff' suffered a serious low back disc herniation at L5-S1, which eventually required a fusion surgery. He may need future revision procedures. Plaintiff’s medical bills exceed $278,000. His loss of earnings exceeds $600,000-$750,000.

Defendants want to restrict evidence of Plaintiff's medical specials at trial to the contract rate the healthcare providers accepted from Plaintiff's health insurance carrier pursuant to Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298.

The motion should be denied for the following reasons:

First, recent judicial decisions affirmed the right of a plaintiff to introduce the full amount of her medical bills notwithstanding that they exceeded the amount paid by insurers to plaintiff's medical providers. In Olsen v. Reid, 2008 WL 2486789, the court of appeal "squarely rejected" defendant's argument that the jury should be barred from hearing evidence of the full measure of plaintiff's medical damages. Similarly, in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157, the court permitted Plaintiff to present the full amount that was billed to him, subject only to a possible post-verdict reduction.

Continue reading "Sacramento Man Sues To Recover Damages After Auto Accident, Part 1 of 8" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

These above cases dramatically demonstrate the principle that--much as every case is of course different and must be independently decided--awards of non-ecomonic damages in the range of $5.4 million (roughly adjusted for inflation) are limited to truly catastrophic injuries. And while Mr. Ward presented evidence at trial of back, neck, and knee injuries that cause significant pain and require surgery, Mr. Ward has produced no evidence of an injury which leaves him paralyzed or otherwise deprived of control over his life as an individual. In short, his injuries from the automobile acident are not catastrophic, and the jury's award of damages as if they were is not reasonable. Damages must be reduced substantially by this Court, or a new trial must be ordered. The same is true for plaintiff’s wife's award.

The Jury's $1.620 Million Loss of Consortium Damages Award to Ms. Ward Is Excessive

A wife's loss of consortium is comprised of her own physical, psychological and emotional pain and anguish which results when her husband is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. [Citation.] While triggered by the spouse's injury, a loss of consortium claim is separate and distinct, and not merely derivative or collateral to the spouse's cause of action. (Gapusan v. Jay (1998) 66 Cal.App.4th 734, 742.)

The jury awarded a total of $1,620,000 to Ms. Ward for past and future loss of consortium. This amount is exactly 30% of the $5.4 million in non-economic damages awarded to Mr. Ward.

The loss of consortium award to Ms. Ward raises three immediate concerns. First, the jury clearly disregarded the independent nature of Ms. Ward's claim, by simply giving her a percentage of what it gave to Mr. Ward for his pain and suffering. Second, the determination of Ms. Ward's loss of consortium claim by way of a percentage of an entirely independent claim belonging to another person constitutes a clear violation of the rule against using mathematical formulas to arrive at a figure for damages. (See above.)

Continue reading "Sacramento Jury Awards Car Accident Victim's Wife Huge Sum For Loss Of Consortium, Part 14 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

Further, non-economic damages awards that are similar in size to Mr. Ward's $5.4 million award are found only in cases involving injuries which exceed--and in some cases far exceed--his in terms of their severity. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 520-523 [$8.4 million in non-economic damages awarded to plaintiff who became a paraplegic as a result of truck accident];

Mendoza v. Car Club, Inc. (2000) 81 Cal.App.4th 287, 292-293, 300 [court upholds jury award of $1 million in non-economic damages against manufacturer of golf cart whose parking brake malfunctioned, causing plaintiff to suffer a broken neck]; Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1232-1233 [court confirms jury award of $2.99 million in non-economic damages to plaintiff who suffered permanent paralysis from the waist down and chronic radiating pain as a result of being shot in the back]; Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, [court upholds $6 million in non-economic damages to 3 year-old for injuries suffered in auto accident rendering her paraplegic and severely brain damaged, but with normal life expectancy];

Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 641-642, 653-655 [22-year old plaintiff was hit in the head and back with a 630-pound pipe, rendering him triplegic, with loss of all movement, sexual function, bladder and bowel control, and in constant pain, but with normal life expectancy; jury awards total economic and non-economic damages of $4,235,996, which the reviewing court upholds]; Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 237, 241, 244 [court upholds jury's award of $1.6 million in non-economic damages for head injury to young boy resulting in irreversible total paralysis and inability to speak].) (See Part 14 of 14.)

Continue reading "Lifetime Injuries For Sacramento Automobile Accident Victim, Part 13 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

Further, non-economic damages awards that are similar in size to Mr. Ward's $5.4 million award are found only in cases involving injuries which exceed--and in some cases far exceed--his in terms of their severity. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 520-523 [$8.4 million in non-economic damages awarded to plaintiff who became a paraplegic as a result of truck accident];

Mendoza v. Car Club, Inc. (2000) 81 Cal.App.4th 287, 292-293, 300 [court upholds jury award of $1 million in non-economic damages against manufacturer of golf cart whose parking brake malfunctioned, causing plaintiff to suffer a broken neck]; Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1232-1233 [court confirms jury award of $2.99 million in non-economic damages to plaintiff who suffered permanent paralysis from the waist down and chronic radiating pain as a result of being shot in the back]; Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, [court upholds $6 million in non-economic damages to 3 year-old for injuries suffered in auto accident rendering her paraplegic and severely brain damaged, but with normal life expectancy];

Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 641-642, 653-655 [22-year old plaintiff was hit in the head and back with a 630-pound pipe, rendering him triplegic, with loss of all movement, sexual function, bladder and bowel control, and in constant pain, but with normal life expectancy; jury awards total economic and non-economic damages of $4,235,996, which the reviewing court upholds]; Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 237, 241, 244 [court upholds jury's award of $1.6 million in non-economic damages for head injury to young boy resulting in irreversible total paralysis and inability to speak].) (See Part 13 of 14.)

Continue reading "Sacramento Jury Awards Huge Non-Economic Damages To Accident Victim, Part 12 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

Damages awards upheld in other cases involving similar injuries further illustrate the true departure from reality reflected by the award to Mr. Ward. (See Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1074-1077 [in upholding $150,000 in non-economic damages for slip-and-fall injury to legs and lower back of 55-year old woman, trial court remarked that the award was generous, where plaintiff suffered from ongoing, chronic, permanent pain from myofascial pain syndrome, which limited her mobility, caused her to be physically weak, and prevented her from working at her job]; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1546-1547 [where plaintiff's arm was severed by fan, resulting in permanent loss of use of dominant hand after reattachment, chronic and severe pain, and inability to work, jury awarded non-economic damages of $2.5 million];

Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 34-38 [where plaintiff suffered "massive crush injury" to his left chest and shoulder from being trapped between a 65,000-pund truck and its trailer, causing massive blood loss, kidney failure, crushing of shoulder blade, nerve damage in arm, shearing-off of ligaments and muscles in arm, collapsed lung, repeated operations, permanent loss of use of arm, and permanent pain in shoulder, jury awarded $568,000 in non-economic damages, upheld by reviewing court]; Honea v. Matson Navigation Co. (N.D. Cal. 1972) 336 F.Supp. 793, 795, 797-799 [where slip-and-fall resulted in fractured left hip, death of a piece of bone due to lack of blood supply, and possible permanent confinement to a wheelchair, court awarded $75,000 in non-economic damages, including pain and suffering];

Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at pp. 504, 506, 508-509 [bus accident caused fractures of left heel and shin bones, severed nerves and arteries to left foot and persistent open ulcer; Court conceded that non-pecuniary damages award of $134,000 was high but upheld it, stating that it was intended to compensate for pain and suffering, past and future, humiliation as a result of being disfigured and permanently crippled, and constant anxiety and fear that the leg will have to be amputated ];

Continue reading "Plaintiff In Sacramento Car Accident Case Rendered Impotent, Part 11 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

In Randolph v. Budget Rent-A-Car (C.D. Cal. 1995) 878 F.Supp.162 (reversed on other grounds in Randolph v. Budget Rent-A-Car (9th Cir. 1996) 97 F.3d 319), the court (following a court trial) determined plaintiff's damages arising from an auto accident. (Id. at pp. 163-164.) The court described the plaintiff's injuries as follows:

As a proximate result of the automobile accident John Randolph has suffered extensive orthopedic injuries. His left knee has a fractured tibial plateau and a tear of its anterior cruciate ligament; his pelvis was fractured resulting in the separation of his pubic rami; his pelvic region suffered a severe hematoma, resulting in a major rectus muscle injury; and the third and fourth metacarpal of his left hand were also fractured. In an effort to alleviate some of the pain John Randolph has been suffering, he must undergo two future surgeries. The first is to remove metal fragments from his left knee; the second is to replace the knee with an artificial knee implant. Further, it is quite possible that a second knee replacement operation will be needed if the first replacement does not work. (Id. at pp. 164-165.)

While the plaintiff in Randolph also suffered impotence as a result of his injuries, he was separately compensated for this by the court. (Id. at p. 166.) For his total past and future pain and suffering arising from the injuries described above, however, the court awarded him a total of $500,000. (Ibid.) The court explicitly based its determination on a survey of compensation for similar injuries in this and other jurisdictions. (Ibid.)

Continue reading "Sacramento Car Collision Victim Suffered Multiple Injuries, Part 10 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

It is true, of course, that every case is different, and that the value of an award in one case cannot be determined to be unreasonable on the basis of awards in other cases. However, the Supreme Court encourages trial courts, when reaching a determination concerning the reasonableness of the amount awarded by the jury, to consider damage awards in other cases. In discussing appellate review of a denial of motion for new trial based on excessive damages, the Supreme Court remarked in Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d 498, that, [w]hile the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. (Id. at p. 508.)

More recently, in Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, the court cited to the language in Seffert quoted above, and, based on it, conclude[d] that while it is appropriate to look at awards in similar cases, ultimately we must determine the propriety of the award based upon the facts of this case. (Id. at p. 550.) The court also found that a comparison of other cases may give us a point of reference . (Id. at p. 552.)

While it is true that the physical injuries and pain and suffering are different in all cases, they also share similarities. If they did not, then jurors would have no means by which to determine, in the first place, a reasonable amount of damages on the basis of their own experience as human beings.

Continue reading "Sacramento Auto Collision Victim Catastrophically Injured, Part 9 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

The Jury's $5.4 Million Non-Economic Damages Award to Mr. Ward Is Excessive

The jury awarded $5,400,000 past and future non-economic damages to Mr. Ward. This amount suggests a "per year" approach by the jury, in that this amount is precisely equal to $150,000 per year, multiplied by a life expectancy from the time of the auto accident of 36 years.
In general, a jury violates the law when it uses a mathematical formula to arrive at a figure for damages. (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 755-756, citing to Beagle v. Vasold, supra, 65 Cal.2d at p. 172.) The taking of a per-year or per-diem approach (i.e. where a dollar value is equated with pain and suffering over a unit of time) is an exception to this rule. (Beagle at pp. 179-180.) However, the use of this method can still lead to unreasonable results because, like any formula, it removes the determination of damages for pain and suffering from the realm of human experience. In his dissenting opinion in Beagle v. Vasold, supra, 65 Cal.2d 166, Justice Traynor strongly disapproved the use of per diem formulas, correctly observing that [n]one of these formulas appears unreasonable on its face, for there is no basis in human experience for testing their reasonableness. (Id. at pp. 183-184.) He concluded that [i]t is therefore unrealistic to seek an appropriate award for pain and suffering by the use of any so-called per diem formula. (Id.)

The Beagle majority addressed this concern by stating that, [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness. The per diem argument is only a suggestion as to one method of reaching the goal of reasonableness, not a substitute for it. If the jury's award does not meet this test, the trial court has the duty to reduce it.... (Beagle, supra, at pp. 179-180.)

Continue reading "Jury In Sacramento Car Accident Case Compensates Victim, Part 8 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

The remaining amount of nearly $2,000,000 in the "life care plan" includes $837,000 for interventional pain therapies that Mr. Ward's own experts admit he may or may not need; $413,400 in household help and attendant care that he may or may not need; and $350,000 for lumbar and cervical spine surgeries based on the estimate of Dr. Sam Stein. The lesser amounts are for items which are even more speculative: $113,838 for supposedly anticipated medical evaluations and treatment in every conceivable field of medicine (including psychiatry, psychology, podiatry, dentistry, gastroenterology, urology, neurology, and internal medicine) which his experts and attorneys are once again being disingenuous in suggesting are tied to actual anticipated expenses; "other therapeutic interventions" in the projected amount of $90,855; additional diagnostic studies totaling $51,743; and a projected cost of $34,625 for emergency room visits.

These costs simply bear no rational relation to any expected, concrete future expense. And those few that do bear at least some rational relation (e.g., the surgeries by Dr. Stein and the interventional pain therapies consisting of the opium pump) are wildly inflated and unsupported as to their amounts.

Continue reading "Sacramento Jury Awards Millions To Accident Victim, Part 7 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

The Jury's $3,185,711 Economic Damages Award to Mr. Ward Is Excessive

The jury awarded Mr. Ward economic damages consisting of future medical expenses in the amount of $3,185,711. This was based on the testimony of Dr. Frank Shin, the substance of which is reflected in Dr. Shin's "Life Care Plan," which states a purported total cost figure of $4,685,561. That means the jury awarded roughly 68% of the amount asked for by the plaintiffs.

Dr. Shin's "Life Care Plan" purports to state the precise cost of surgical procedures, individual medications, and medical treatments of every imaginable variety. (Dr. Shin's testimony was the only evidence presented at trial in support of the amounts stated on this document.
The life care plan states an estimated lifetime cost for medications totaling the unbelievable sum of $2,708,200. This sum was reached by multiplying Mr. Ward's supposed remaining life expectancy of 35 years (i.e. 420 months) by the monthly cost of a total of ten different medications, plus an additional $250,000 for botox injections. (This amount in particular is clearly overstated, since the total cost is listed as $5,000 per year, which, multiplied by a 35-year life expectancy comes only to $175,000, not $250,000.)

Continue reading "Sacramento Car Collision Victim Faces Long Recovery, Part 6 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

This Court Is the Only Forum in which Defendants Can Realistically Seek a New Trial Based on Excessive Damages Awarded by the Jury

As discussed above, while this Court is able to re-weigh evidence and determine whether damages are excessive based on a standard of reasonableness, the court of appeal is governed by a far different standard. That means if this Court denied this motion, the court of appeal could find the jury's award excessive only if it found the amount of the award was so high as to clearly have been the result of passion or prejudice on the part of the jury. (Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at p. 507.)

The inability of the court of appeal to re-weigh evidence gives rise to differing standards of review between it and this Court. As Witkin explains, The appellate court does not weigh the evidence on damages, and will reverse a judgment on appeal only if no substantial evidence supports the award. But the trial judge is not bound by the rule of conflicting evidence and may grant a new trial if the award is against the weight of the credible evidence. (8 Witkin Cal. Procedure 4th (2002) sec. 37, p.542.) Necessarily, the court of appeal accords a great deal of weight to the finding of the trial court, when, after a re-weighing of the evidence, the trial court has concluded that the jury's verdict is reasonable. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614-615.)

Continue reading "Sacramento Car Accident Victim May Face Second Civil Trial, Part 5 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

This legislative note alludes to the fact that, while the statute had on its face previously required a finding of "passion or prejudice," this requirement was contrary to valid Supreme Court case authorities, which had embraced the reasonableness standard based on a re-weighing of the evidence. Even though this Court need not find passion or prejudice influenced it, the award of damages here surely can be viewed that way. Given the parade of experts and the inflated numbers submitted to the jury, the outrageous amount here could be set aside for that reason, if it were necessary. (See Beagle v. Vasold (1966) 65 Cal.2d 166, 179-180 [ [W]hatever manner of calculation is proposed by counsel or employed by the jury, the verdict must meet the test of reasonableness....

If the jury's award does not meet this test, the trial court has the duty to reduce it ]; Sinz v. Owens (1949) 33 Cal.2d 749, 760 [the Court refers to a line of cases which "realistically conclude that an order for a new trial on the basis of excessive damages" necessarily is granted on the ground of the insufficiency of the evidence to sustain a verdict for the amount awarded by the jury]; Van Ostrum v. State (1957) 148 Cal.App.2d 1, 7 [court holds that, [t]he trial judge had the duty as well as the power to set aside the verdict when he found, pursuant to his own independent appraisal of the evidence, that it did not support an award of $4,000; it was not necessary for him to find passion or prejudice on the part of the jurors ].)

Continue reading "Defendant In Sacramento Car Collision Case Seeks New Trial, Part 4 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

Initially, it is important to note that the statute establishes exactly what the court must find in order to determine that an award of damages is excessive. It must find, based on the evidence presented at trial, that the jury's verdict--the amount of damages--was unreasonable and therefore should have been different. Unlike a court of appeal sitting in review of an order denying a motion for new trial, the trial court need not find that the award is so large that it must necessarily have resulted from "passion or prejudice" on the part of the jury. The Supreme Court explained the reason for this distinction in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498:

The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented it becomes his duty to reduce them. When the question is raised his denial of a motion for new trial is an indication that he approves the amount of the award. An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors. (Id. at p. 507, quoting Holmes v. Southern California Edison Co. (1947) 78 Cal.App.2d 43, 51.)

Continue reading "Sacramento Car Accident Defendant Fights Huge Damage Award, Part 3 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

BRIEF STATEMENT OF FACTS
In this action, Mr. and Ms. Ward sought to recover for injuries he sustained in an automobile accident that occurred on October 15, 2004; liability was admitted. Following the completion of jury selection, the trial of this action commenced on June 7, 2007 and finished on June 26, 2007. The jury reached its verdict the following day, after about four hours of deliberation. It awarded a total of $10,105,711 consisting of: $3,185,711 to Mr. Ward in future medical expenses, $5,200,000 to Mr. Ward in past and future non-economic damages, and $1,620,000 to Ms. Ward for loss of consortium.

LEGAL DISCUSSION
Each of the jury's three basic awards of damages is unreasonably excessive and unsupported by the evidence presented at trial. The awards must be reduced by this Court under Code of Civil Procedure section 662.5(b). In the event that plaintiffs are unwilling to accept remittitur, this Court should order a new trial.

This Court Can and Must Order a New Trial Where the Damages Awarded by the Jury Are Clearly Excessive Based on a Reasonableness Standard

Continue reading "Sacramento Jury Awards Huge Damages For Auto Accident Victim, Part 2 of 14" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. 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.

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

DEFENDANTS’ MOTION FOR NEW TRIAL
MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
The trial court is the sole line of defense against excessive jury verdicts. This Court is thus empowered to re-weigh the evidence, and to determine independently whether the evidence justifies the amount awarded by the jury. That power should be exercised here, if ever there were a time to do so.

Here, the jury awarded the astonishing amount of $10.2 million against Zenkov for injuries suffered by Mr. Ward, and the loss of consortium suffered by Ms. Ward. Yet there was no catastrophic injury here of the type justifying $10.2 million. This amount is not an amount which a reasonable person would estimate as fair compensation for plaintiff's serious--but not catastrophic-- injuries. These awards are utterly unreasonable, and this Court must act. For if it does not, then Zenkov will have no practical other legal avenue by which to seek a reduction of the monstrous amount which has been awarded against him.

Mr. Ward did, of course, present evidence at trial that he has suffered serious--but not catastrophic--injuries due to the auto collision. The evidence is of injuries to his neck, back, and knee, which cause him to suffer chronic pain for which he must take powerful drugs, and which will require surgery in the future. These injuries, while substantial, simply do not justify an award of $10.2 million. This is so because, while the evidence may have shown that Mr. Ward's injuries have affected his quality of life, the same evidence also showed conclusively that his injuries have come nowhere close to destroying his life.

Continue reading "Sacramento Man Seriously Injured In Auto Accident, Part 1 of 14" »

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

Contrary to Defendant's argument that it is necessary for a meeting between co-conspirators for form a conspiracy, The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. It is not necessary to show a meeting of the alleged conspirators or the making of an express or formal agreement. (BAJI California Jury Instructions, Civil 9th Ed., 2002, P. 205) (Emphasis added) Kidron v. Movie Acquisition Corp. 40 Cal.App.4th 1571, 1583 (1995)

It is clear from the events that occurred the night of December 19 and early morning of December 20, 2006, that Stacy Greene and El Mexicano knowingly conspired to violate Business & Professions Code Sec. 25602.1, planning their wrongful acts, assisting each other, knowing their acts were wrongful and unlawful. El Mexicano andStacy knowingly conspired to violate Business & Professions Code Sec. 25602.1. Plaintiff's TAC has alleged numerous facts to establish thatStacy knowingly co-conspired with El Mexicano Restaurant to "sell, furnish, give or cause to be sold, furnished or given away any alcoholic beverage" to an "obviously intoxicated minor," Matt Smith, in violation of Business & Professions Code Sec. 25602.1. There must be a showing of knowledge of the planned tort and intent to aid in its commission. Wyatt v. Union Mortgage Co. 24 C.3d 773,784 (1979)

Stacy brought the minors to El Mexicano so that they could be entertained on the night and early morning of December 19, 20, 2006.

Continue reading "Drunk Driving Car Accident Kills Sacramento Teens, 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 automobile accident/personal injury case and its proceedings.)

DEFENDANT STACY GREENE CONSPIRED WITH EL MEXICANO RESTAURANT TO VIOLATE BUSINESS AND PROFESSIONS CODE SEC. 25602.1

Plaintiff's Third Cause of Action alleges that Defendant Stacy Greene conspired with El Mexicano Restaurant and Bar to violate Business & Professions Code Sec. 25602.1. Conspiracy is a legal doctrine that imposes liability on persons who, although not committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a co-conspirator effectively adopts as his or her own the torts of other co-conspirators within the ambit of the conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. 7 C.4th 503,510,511 (1994))

The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design... (Applied Equipment Corp. v. Litton Saudi Arabia Ltd supra. 7 C.4th at 511) DefendantStacy need not share the same duty as a licensed purveyor to sell alcohol to engage in a conspiracy to violate Business & Professions Code Sec. 25602.1 as defendant's have erroneously argued. Defendant's reliance on Doctors' Co. v. Superior Court 49 Cal.3d 39, 47 (1989) is misplaced. There has never been an allegation that Stacy was acting as an agent for El Mexicano. Doctors' Co. held that an alleged conspirator to an agreement was not personally bound by the duty if he was acting only as the agent or employee of the party who did have that duty. (Doctors' Co. v. Superior Court supra. 49 Cal.3d at 47) El Mexicano, a corporation, is liable because the acts of selling or furnishing alcoholic beverages to an obviously intoxicated minor were ratified and approved by a corporate officer. (See Part 8 of 8.)

Continue reading "Sacramento Birthday Celebration Ends In Deadly DUI Car Accident, 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 automobile accident/personal injury case and its proceedings.)

Since the Greenes had assumed an affirmative duty to protect, control and supervise him on the night and early morning of December 19, 20, 2006. [t]he finding of a duty to provide assistance depends upon a showing of special factors such as would give rise to an expectation that assistance would be provided and a showing that due to these factors the victim detrimentally relied upon that expectation or was otherwise dependent upon the defendant for assistance. (cf.Andrews v. Wells supra, 204 Cal.App.3d at 540) However, the Greenes breached their duty by allowing Paul to ride home with a drunk driver.

In Tarasoff v. Regents of University of California 17 C.3d 425,435 (1976) our California Supreme Court held that "as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct," the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. (Citations omitted) If the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions... (Brockett v. Kitchen Boyd Motor Co. 264 C.A.2d 69,72 (1968) (citing Valdez v. Taylor Automobile Co. 129 Cal.App.2d, 810,817 (1954).)

The case of Brockett v. Kitchen Boyd Motor Co. was an action for personal injuries by occupants of an automobile against the employer of a minor who became intoxicated at a Christmas party, drove his vehicle, which collided with the plaintiff's causing them injuries. The lower court sustained defendant's demurrer without leave to amend and was reversed by our Court of Appeal. The Court held that It is our view that the alleged relationship between the minor Huff and Kitchen Boyd Motor Company was such that the defendant had assumed the responsibility for the well-being and proper conduct of the minor in the circumstances here for not only the minor's protection, but also for the protection of the general public through the exercise of ordinary care. (Brockett v. Kitchen Boyd Motor Co. supra. 264 C.A.2d, at 72.)

Continue reading "Three Sacramento Families Suffer After Deadly Car Accident, 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 automobile accident/personal injury case and its proceedings.)

DeBolt v. Kragen Auto Supply, Inc. 182 Cal.App.3d 269 (1986) involved a host (Kragen Auto Supply) of a beach party who supplied and served a minor alcoholic beverages to the point where the minor became intoxicated and disorderly. Kragen ordered the minor to leave the party, but took no affirmative action to provide any alternative or safer means of transportation for her, so the minor drove her own car, ultimately plowing into a motorcycle killing two people. The Court of Appeal determined that Kragen was a social host and was immune from liability under Civ. Code Sec. 1714, B & P Code Secs.25602 and 25602.1. Kragen had no "special relationship" with any of the minors as did the Greenes in the present case.

Cory v. Shierloh, 29 Cal.3d 430 (1981), again a social host, furnished Plaintiff with alcoholic beverages, but the Court held that plaintiff's injuries were the result of her own intoxication. This case is clearly distinguishable as Plaintiff's injuries were not a result of his own intoxication but as a result of the Greenes breaching their duty of due care based upon their "special relationship" and allowing him to ride home with a drunk driver.

Chalup v. Aspen Mine Co. 175 Cal.App.3d 973 (1985), where an 18 year old became intoxicated in a restaurant and when she left she ran across the street against a traffic signal into the path of a car. The Defendant in this case was a licensed purveyor of alcohol, but the Court held that the injured minor who buys liquor while she is obviously intoxicated may state a cause of action under B & P Code Sec.25602.1. Again, this case is clearly distinguishable from the present case as the Greenes failed to protect Paul from riding home with a drunk driver, as was their duty of due care based upon their "special relationship" with him. It did not involve the sale of alcohol to Plaintiff.

Continue reading "Sacramento Minors Involved In Deadly DUI Car Crash, 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 automobile accident/personal injury case and its proceedings.)

The only case the Greenes have cited in opposition to Plaintiff's Second Cause of Action- special relationship is Elizarraras v. L.A. Private Security Services, Inc. (108 Cal.App.4th 237 (2003)) (L.A. Private Security Services, Inc. was hired by a restaurant as security guards and their job responsibility did not include preventing patrons from drinking and driving, thus they had no special duty of care to prevent minors from consuming alcoholic beverages as its job responsibility is not equivalent to a legal duty of care to underage patrons to prevent them from drinking or driving while intoxicated ).

Defendants’ demurrer contains pages of boilerplate information about the legislative history, definitions and interpretation of the 1978 amendments to Civ. Code Sec. 1714 and B & P Code Secs.25602 and 25602.1. Although this historical information may be interesting, it does not relate to the particular facts alleged in Plaintiff's TAC, the First and Second Causes of Action and the special relationship that existed between the Greenes and Paul.

Defendants' reliance on these cases is misguided and can be distinguished both factually and legally. Defendant El Mexicano does not dispute liability for serving alcohol to an obviously intoxicated minor, specifically Danny Smith, age 18, the evening of December 19 and early morning of December 20, 2006 in violation of B & P Sec.25602.1.

Continue reading "Sacramento Family Loses Children In Fatal DUI Car Accident, 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 automobile accident/personal injury case and its proceedings.)

THERE EXISTED A SPECIAL RELATIONSHIP BETWEEN THE GREENES AND PLAINTIFF AND PLAINTIFF’S FIRST AND SECOND CAUSES OF ACTION FOR NEGLIGENCE AND NEGLIGENT SUPERVISION-SPECIAL RELATIONSHIP ARE DISTINGUISHED FROM THE CASE AND STATUTORY LANGUAGE OF BUSINESS & PROFESSIONS CODE 25602.1 THAT DEFENDANTS HAVE CITED

Actionable negligence involves a breach of a legal duty of care that proximately causes injury. Because there existed a special relationship between the Greenes and Plaintiff Paul Verano, age 14 at the time of this tragic car accident-- their promise to "be there" for him and his reliance on the expectation that they would protect, control and supervise him on the night and early morning of December 19, 20, 2006, they are liable for Plaintiff's injuries based upon the affirmative duties arising from this "special relationship." (cf.Andrews v. Wells supra, 204 Cal.App.3d at 541.)

Defendants contend that that Plaintiff's First and Second Causes of Action for Negligence and Negligent Supervision are barred by Business and Professions Code Secs. 25602, 25602.1, because the Greenes are not "licensed purveyors of alcohol" and were only patrons in El Mexicano Restaurant when some alcohol was consumed by Smith at some point after he was obviously intoxicated before the accident occurred. Defendants claim that they had no legal duty of care and are immune from liability pursuant to Civ. Code Sec. 1714, B & P Code Sec. 25602.1 for Plaintiff's injuries that occurred because they allowed Plaintiff to get into a vehicle driven by Smith, a drunk driver, who crashed his vehicle into a tree, killing himself, two passengers and severely injuring Plaintiff.

Continue reading "Sacramento Restaurant Served Minors Before Fatal Car Accident, 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 automobile accident/personal injury case and its proceedings.)

PROCEDURAL HISTORY
Plaintiff filed a lawsuit on May 1, 2007, against the Estate of Danny Smith and Richard Smith, Case No. SC2007-09, which resulted in a settlement and this Court approved Plaintiff's Petition to Compromise a Disputed Claim on February 29, 2008. During the course of litigation in that case facts became evident that Danny Smith, a minor, was "obviously intoxicated" at El Mexicano Restaurant and served alcoholic beverages - beer and Tequila shots, throughout the evening before and the early morning of the fatal car crash. There are three other related cases that were ordered consolidated by this Court February 23, 2009.

El Mexicano was fictitiously named as Doe 1 February 13, 2008. Plaintiff filed and served a FAC on Defendant El Mexicano, which it answered on June 17, 2008. El Mexicano does not dispute that it violated Business & Professions Code Sec. 25602.1 and has already reached settlements with some of the Plaintiff's. Plaintiff Verano's FAC was served on Robert Greene, Doe 2 and Stacy Greene, Doe 3. Defendants demurred to Plaintiff's FAC, and the hearing on demurrer was held April 3,2009. Plaintiff was allowed to amend his complaint and served his TAC on Defendants. A trial date has been set for November 30, 2009.

PLAINTIFF SHOULD BE ALLOWED TO FILE HIS THIRD AMENDED COMPLAINT. THIS IS BECAUSE PLAINTIFF'S POSITION IS STRONGLY SUPPORTED BY PUBLIC POLICY INTERPRETED TO ALLOW TIMELY AMENDMENTS TO PLEADINGS (C.C.P. SEC. 473) AND THE TAC SATISFIES THE REQUIREMENTS OF THE RELATION BACK DOCTRINE

First, there is strong public policy that allows a party to amend any pleading so that they may litigate cases on their merits. (Code of Civil Procedure Sec. 473.)

Continue reading "DUI Car Accident Injures Sacramento Teen, 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 automobile accident/personal injury case and its proceedings.)

Plaintiff's Opposition to Defendants Robert and Stacy Greene's Demurrer to Plaintiff's Third Amended Complaint

MEMORANDUM OF POINTS AND AUTHORITIES

CASE SYNOPSIS
This lawsuit arises from an automobile accident that occurred on the morning of December 20,2006, at approximately 1:00 a.m. near the intersection of Fair Oaks Blvd. and Howe Avenue, in Sacramento. Defendant Danny Smith, age 18, was driving a 2002 Toyota Camry, owned by his father, Defendant Richard Smith. His passengers were Mike Greene, age 19, Tom Lawrence, age 18, Kevin Greene, age 15, and Plaintiff Paul Verano, age 14. The youths had been celebrating Kevin Greene's 15th birthday at El Mexicano restaurant in Sacramento the evening of the 19th and early morning of the 20th.

Defendant Danny Smith left the restaurant in an intoxicated state, was proceeding eastbound on Fair Oaks in the no. lane in his Camry, speeded up to pass Stacy Greene, Kevin Greene's sister, who was driving in front of him. As Defendant Danny Smith moved into the no. 2 lane to pass Stacy, he apparently tried to slow to avoid hitting another car that was already in the no. 2 lane in front of him, lost control of his vehicle, jumped the curb and struck a tree on Fair Oaks. The impact was so severe that the Camry burst into flames, trapping the youths inside the vehicle. Defendant Smith, Mike Greene and Tom Lawrence were killed. Plaintiff Verano and Kevin Greene, who were seatbelted and sitting in the rear seat, survived the crash. Plaintiff Verano suffered serious injuries. (See Part 2 of 8.)

Continue reading "Sacramento Teens Killed In Car Accident, Part 1 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/personal injury 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.

The Frontage Road is not a bicycle lane and should not be referred to as such. A bicycle lane is a term of art, defined by statute. CVC Section 21207 permits local authorities to establish bicycle lanes upon streets, as defined in Section 24 of the Streets and Highways Code pursuant to Article 5 (commencing with Section 1720) of Chapter 9 of Division 2 of the Streets and Highways Code. Bicycle lanes thus established must comply with Section 891 of the Streets and Highways Code, which sets forth the definition of a bicycle lane. Under Streets and Highways Code Section 890.4, there are three categories, called bicycle paths, lanes and routes, as follows:

(a) Class I bikeways, such as a bicycle path, provide a completely separated right of way designated for the exclusive use of bicycles and pedestrians with cross-flows by motorists minimized;

(b) Class II bikeways, such as a bicycle lane, provide a restricted right of way designated for the exclusive or semi-exclusive use of bicycles with through travel by motor vehicles or pedestrians prohibited, but with vehicle parking and cross-flows by pedestrians and motorists permitted.; and

(c) Class III bikeways, such as a bike route, provide a right of way designated by signs or permanent markings and shared with pedestrians or motorists.

Continue reading "Bicycle Path Source Of Dispute In Sacramento Bicycle-Auto Collision, Part 7 of 7" »

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

11. Defendant's Theory of the Case

Plaintiff is 100% negligent and is the sole cause of the auto collision and his resultant injuries. There is no evidence that defendant violated any law or ordinance or did something that a reasonably careful person would not do in the same situation, or that defendant failed to do something that a reasonably careful person would do in the same situation. At all times, defendant used reasonable care to prevent injury to himself and to others.

The accident occurred in one of two ways:
(a) Plaintiff came riding down the sidewalk in violation of Sacramento Traffic Ordinance Section 96 (bicycle on a sidewalk), failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge; or

(b) Plaintiff came riding down the Frontage Road, ran through the stop sign at Ridge, failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge.

Continue reading "Sacramento-Area Automobile Driver Claims Bicyclist Riding Illegally, Part 6 of 7" »

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

INDEPENDENT MEDICAL EXAM (IME)
Plaintiff attended a defense medical examination on July 24, 2008, conducted by Dr. Stuart U.. Dr. U. is a board certified neurologist and is, also, a board certified psychiatrist. Dr. U. could find nothing wrong with plaintiff. Dr. U. suggested that plaintiff's complaints of pain and achiness might be related to his heavy work for Williams-Sonoma (e.g., moving furniture and other items to and from photo shoots at various locations). Dr. Stuart U. concluded that plaintiff has no restrictions and needs no ongoing treatment as a result of the accident. At no time, excluding the x-rays of plaintiff's feet in the ER and by Dr. V. and the findings by Dr. Z., the gastroenterologist, did any doctor make any objective findings that correlate with plaintiff's plethora of subjective complaints.

Doctors must believe their patients, but jurors need not do so. Thus, this trial will involve the credibility of plaintiff, both as to liability and as to causation of injuries and damages. There are a number of inconsistencies with respect to plaintiff's history and complaints as set forth in medical and other records, not specified herein.

Alleged Special Damages
a. Medical Specials
Plaintiff's counsel informs us that plaintiff's medical specials total approximately $18,000.00; the defense has been able to determine only $4,100.00.

Plaintiff's Vehicle Code and Traffic Code Violations
California Vehicle Code Section 21200(a) provides, in substance, that every person riding a bicycle on the highway is subject to all of the provisions applicable to the driver of a vehicle. Plaintiff is culpable of violating the following California Vehicle Code sections that directly caused the accident, thus creating a negligence per se situation:

Vehicle Code Sections

21201(d)(1) Failure to have a headlight at night
22450(a) Failure to stop at stop sign
21650 Failure to ride bicycle on right half of roadway
21802(a) Failure to stop at stop sign and yield right of way
21804(a) Failure to yield right of way on entering or crossing highway

Continue reading "Medical Experts Battle In Sacramento Car Accident Suit, Part 5 of 7" »

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

Plaintiff alleges that as a result of the automobile accident, he also suffered lingering pains that consisted mostly of: headaches, neck aches, back and low-back pain, a knee that seems to dislocate or give-way, ankle pain and cramping of his feet. Plaintiff's current residuals are alleged to be primarily his feet/toes, neck and low-back. Plaintiff alleges that his current residuals are, essentially, (a) pain and stiffness at the three fracture sites and painful ambulation, (b) crepitus in plaintiff's neck, a crackling not associated with pain and (c) mild recurrent low-back pain. Plaintiff also fears the onset of arthritis as a result of his injuries.

Plaintiff's Treatments
After discharge from the ER, plaintiff's next medical visit was seven months later, when plaintiff was first examined by his doctor, Dr. Kyle X., a generalist, on May 22, 2007, seven months post-accident. The given reason for the examination, as Dr. Kyle X. testified at his deposition, is that plaintiff's chief complaint was pain to the right groin, which is what brought plaintiff to Dr. Kyle X.. The examination was not, according to Dr. Kyle X., because of the accident. Dr. Kyle X. was told about the accident, but did not consider that he was treating plaintiff as a result thereof. Dr. Kyle X. prescribed physical therapy, lab tests and a return to his office. Dr. Kyle X.'s records reflect that his final determination was Impression: Well CPE (i.e., that plaintiff was found to be well after a Comprehensive Physical Examination ). Plaintiff did voice complaints about low-back and abdominal pains and Dr. Kyle X., therefore, told plaintiff to see a neurologist, a Dr. Stan Y.. Plaintiff did not do so, plaintiff did see a different neurologist, Dr. Alice W., but not until April 11, 2008, about 16 months post-accident.

Continue reading "Bicyclist From Sacramento Suffers Long-Term Injuries From Car Collision, Part 4 of 7" »

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

Alleged Injuries
It is not disputed that plaintiff sustained a fracture of each of his big toes and, also, a fracture of the second toe of his right foot. It is, also, not disputed that plaintiff currently has some reduced range of motion in curling the toes that were fractured (flexion) and that in the first phalange of his second right toe there is about 15degrees of obliquity with respect to the second phalange thereof.

Additionally, it is not disputed that plaintiff sustained abrasions (road rash) to the top of his head, his face, abdomen, both hands and both knees. Said injuries were described in the paramedic records and in the ER records at General Hospital. There was no loss of consciousness and plaintiff's GCS (Glasgow Coma Scale- a measure of brain injury potential) was a perfect 15 out of 15. Plaintiff was given a small injection of morphine sulfate and was given a prescription for Vicodin tablets. Plaintiff underwent x-rays of his chest and neck at the ER, which were negative.

Continue reading "Sacramento Automobile Driver Challenges Some of Bicyclist's Injuries, Part 3 of 7" »

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

Description of Street at Accident Scene

The intersection of River and Ridge is controlled by a tri-light signal system. There is no tri-light signal facing the frontage road or facing the sidewalk; the tri-light signal faces the Boulevard (i.e., the four main travel lanes of River). The frontage road has a stop sign controlling each corer; the sidewalk has a walk/don't walk signal at River and Ridge.

At the area of the accident, River is a relatively new Boulevard Project, inaugurated in the summer of 2006. The Boulevard has two through lanes going north and two through lanes going south; these four through lanes are divided by a raised concrete median, four feet wide, planted with trees. There is no parking along the through-lanes, which are each 11 feet wide (i.e., narrower than a standard freeway lane). Instead, there is another four-foot wide raised concrete median at each outer edge of the through lanes, also planted with trees. These latter medians border the through lanes on the east and west edges thereof. Next, there is an 18-foot wide paved street, marked One Way eastbound and westbound (also part of the Boulevard Project) for motorized traffic, bicycles and for parking. The parties refer to this street as the Frontage Road.

Continue reading "Sacramento Car Accident Leaves Bicyclist With Fractured Feet, Part 2 of 7" »

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

Type of Action
This is a two-party bodily injury action arising from a traffic accident involving a bicycle and an automobile.Factual Summary
Description of Accident
The defense contends that plaintiff is solely to blame for causing the subject accident (hereafter "the accident" ) and defendant is not liable for any injuries or damages that plaintiff sustained.

This is a contested liability, contested injuries/damages action arising from a bicycle versus auto collision that occurred on Halloween night, October 31, 2006, at approximately 9:20 p.m. Defendant Tina Lu, then age 23, was making a right turn from northbound River Drive onto Ridge Road, driving her 2004 Toyota Camry. Plaintiff Paul Nathan, then age 22, was riding a bicycle without a helmet, down the hill on River toward Ridge. Prior to defendant's right turn, the parties were traveling parallel to each other (northbound), though not on the same street, as explained below. It is contested whether plaintiff was riding on the sidewalk as contended by defendant, or whether plaintiff was riding on the Frontage Road (defined below) as contended by plaintiff. In either event, plaintiff was attempting to cross Ridge and continue northward at the same time that defendant was attempting to turn right and head eastbound on Ridge. The parties were at right angles to one other at the moment of impact.

Continue reading "Sacramento-Area Car Driver Collides With Bicyclist, Part 1 of 7" »

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

Plaintiff will contend the automobile accident happened after 9:00 p.m., on Halloween Night. The evidence will demonstrate this location, just a few blocks from University Avenue, was particularly congested with pedestrian traffic at that time. Defendant was driving too fast in view of the prevailing conditions and failed to see Mr. Nathan before starting her right turn. Her turn took her across another lane of northbound traffic on River Drive and through a pedestrian crosswalk which is controlled by a signal on the same sequence as north-south River Drive traffic.

Plaintiff's Damages
Mr. Nathan was taken to Sacramento General's trauma center via ambulance immediately after the accident. He underwent a variety of x-rays and other diagnostic tests, was given IV Morphine and then Vicodin prior to being released the following day. Because he had sustained fractures in both feet he was sent home by taxi and with immobilizing devices on both feet. He was off work for four to six weeks and was subsequently treated for persistent headaches; abdominal pain; low back pain and bilateral foot pain.

During the course of treatment he was seen in consultation by two neurologists, and a podiatrist. He also had a very brief course of physical therapy. He has continuing complaints of occasional headache pain and of stiffness, lack of mobility and pain in both feet. There is every probability he will suffer from arthritis in both feet and will do so for the remainder of his life.

Continue reading "Sacramento Man Injured When Car Collides With His Bicycle, Part 3 of 3" »

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

The intersection in question is, to say the least, unusual. There is a stop light that controls north and southbound traffic on River Drive. This light is visible for quite some distance (particularly at night). At the time of this accident the newly-constructed roadway had only recently been opened to traffic. It was an ancillary project as part of the Central Freeway Replacement. It is disputed whether there was or was not a stop sign for the bicycle path portion of River Drive. Plaintiff contends there was no sign in place at the time of the accident.

The investigating officer testified at deposition as follows:
Q. Is there a stop sign at the corner at that Frontage road, that you're aware of?
A. I don't believe so....And I don't believe there's a stop sign there, but I'm not a hundred percent sure. It's not indicated in the report. So I would say, there is no stop sign there.

Photographs-of the intersection taken well after the accident do show a stop sign, although it is substantially obscured by trees which were planted along the right curb of the bicycle path. Various photographs of the accident scene demonstrate its appearance (copies of which are available for review). These photographs likewise illustrate the problematic nature of the intersection.

Defendant contends the portion of the River Drive roadway to the right of the divider is not a bicycle path. They prefer to call it a frontage road. The nature of the roadway and its use is a question of fact.

Continue reading "Automobile Accident Involving Sacramento Driver And Bicyclist, Part 2 of 3" »

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

Plaintiff's Trial Brief

Factual Background and Disputed Issues

This is a traffic collision personal injury action that arises from an October 31, 2006 accident. Plaintiff, Paul Nathan, was riding on the bicycle path portion of River Drive. Defendant, Tina Lu, was driving on River Drive after having exited Highway 50 on her way home from working in El Dorado Hills. Plaintiff's portion of River Drive is divided from the main lanes by a divider. At the intersection of River Drive and Ridge defendant made a right hand turn across the path of plaintiff's bicycle. The bike's front wheel struck the car and Mr. Nathan was thrown over the car and onto the pavement.

Both vehicles had been moved before the investigating officer arrived. Mr. Nathan was taken from the scene via ambulance prior to being interviewed by the officer. There were no skid marks noted by the officer, no debris in the street noted and thus no accurate means of determining the point of impact or the point of rest of either the vehicle or of Mr. Nathan’s bicycle.

Defendant asserted plaintiff had ridden into the street from the sidewalk. The officer concluded the bicycle had been traveling on the sidewalk and thus entered the intersection in the crosswalk.

Continue reading "Sacramento Bicyclist Injured In Car Collision, Part 1 of 3" »

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

Defendant's underwriters state that they act as soon as they receive the relevant medical records. Yet underwiter Ms. Smith did not act in this case after receiving Dr. Xavier W.'s medical report concerning Bob Lawrence on March 2, 2001. See defendant's statement of facts, fact numbers 62-65. She could have rescinded the contract based on that information but chose not to do so. Instead, she waited three more months to act, during which time Mr. Lawrence sustained injuries which defendant later chose not to cover. She did this, too, without alerting plaintiffs that there was a possibility their coverage might be terminated. Had she informed them of this possibility in a timely manner, plaintiffs could have obtained replacement coverage that would have been in effect at the time of Bob Lawrence's automobile accident.

Furthermore, Ms. Smith testified that her practice was to rescind a contract if allowing the coverage to continue would cost Blue Shield more money, but not otherwise. In addition, upon recent review of defendant's first motion for summary judgment, it appears that Ms. Smith and Ms. Bird have submitted declarations in support of the present motion that are materially different from those they submitted the first time around. Plaintiffs will utilize the additional time they request herein (argument III, infra), in part, to examine these apparent discrepancies in more detail.

Another serious matter is defendant's intentional omission of parts 4-9 of Sally Lawrence's paper application from the online version of the application which defendant includes in its motion. The omission is significant for several reasons. First, the omitted parts contain critical information regarding Sally Lawrence's irritable bowel condition, her treatment history and Blue Shield's consequent duty to make further inquiry before issuing coverage. The language of those parts also reinforces plaintiffs' contention that Sally Lawrence believed the balance of the application applied to her only and not to Steve. Those parts also contain evidence that Mr. Shulman was a Blue Shield agent and that he falsely attested that he had asked each question in the application exactly as set forth.

Continue reading "Sacramento Car Accident Victim Also Victimized By Insurance Company's Bad Faith, Part 11 of 11" »

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

Blue Shield's argument that this court should conformist ruling on this motion to a statement of decision recently signed by a Los Angeles County Superior Court Judge in another Blue Shield case is specious. The facts of the two cases are entirely dissimilar. Further, the court in that case did not consider the Court of Appeal's directive that plans must investigate outside the applications before making initial coverage decisions. His statement that the Lawrence decision "does not require a plan to check every statement in every application to determine whether the applicant is lying" entirely misses the mark.

The opinion merely requires plans to make a reasonable inquiry outside the application. Whether a plan did that in a particular case will be a question of fact for the jury. Next, the Los Angeles case is now on appeal. Finally, as explained above and elsewhere in this opposition, the Court of Appeal has determined that the material issues presented in this case are disputed and require trial on their merits. They cannot be resolved on summary judgment.

PLAINTIFFS HAVE DEMONSTRATED THEIR ENTITLEMENT TO A TRIAL ON THE ISSUE OF PUNITIVE DAMAGES.It is clear that Blue Shield conducted business in 2000 just as it had before the enactment of Health and Safety Code section 1389.3. It did not change its underwriting practices in the slightest manner in the nine years preceding the plaintiffs' application.

Continue reading "Court Evaluates Possible Willful Insurance Misrepresentations With Sacramento Accident Victims, Part 10 of 11" »

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

BLUE SHIELD DID NOT COMPLETE ITS MEDICAL UNDERWRITING OR TAKE STEPS TO ANSWER ALL REASONABLE QUESTIONS ARISING FROM THE INFORMATION CONTAINED IN THE APPLICATION BEFORE ISSUING COVERAGE.

Health and Safety Code section 1389.3, enacted in 1991, provides as follows:
No health care service plan shall engage in the practice of postclaims underwriting. For purposes of this section, postclaims underwriting means the rescinding, canceling, or limiting of a plan contract due to the plan's failure to complete medical underwriting and resolve all reasonable questions arising from written information submitted on or with an application before issuing the plan contract. This section shall not limit a plan's remedies upon a showing of willful misrepresentation.

On December 24, 2008, the Court of Appeal issued its decision in plaintiffs' appeal from an earlier order in this case granting defendant's first motion for summary judgment. See Sally Lawrence v. California Physicians' Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Cal.App.4th ___ (2008)]. See also plaintiffs' request for judicial notice of the Lawrence opinion filed concurrently with this opposition. In that opinion, the Court of Appeal specifically determined that, with each application, health plans must take reasonable steps and make reasonable inquiries outside the four corners of the application to confirm the accuracy of the information provided before issuing coverage. The rational for the requirement is to prevent the very calamity that has befallen plaintiffs in this case, i.e., the postclaims rescission of a plan contract that would not have been issued initially if the plan had done its medical underwriting and true risk assessment before issuing coverage.

In this case, it is clear that Blue Shield did not complete its medical underwriting before issuing its contract. Defendant's separate statement merely confirms that it did no more than examine its own internal records to see whether plaintiffs had any prior health history with Blue Shield.

Continue reading "Sacramento Couple Fights For Insurance Coverage After Auto Accident, Part 9 of 11" »

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

PLAINTIFFS' OPPOSING SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS DEMONSTRATES THAT DEFENDANTS FACTS ARE DISPUTED AND THAT DEFENDANT'S MOTION MUST THEREFORE BE DENIED.

Plaintiffs' separate statement of undisputed facts has disputed nearly all of defendant's facts, and it has set forth 22 additional undisputed material facts. Even if defendant responds to plaintiffs' additional facts in a reply memorandum, those facts will still require jury resolution.

Plaintiffs have clearly demonstrated that there are triable issues of fact whether Blue Shield complied with Health and Safety Code section 1389.3, as explicated by the Lawrence opinion, before issuing coverage. There are also triable issues (as the Lawrence opinion makes clear) whether Bob Lawrence's signature on the application constituted a willful misrepresentation. And there are triable issues of fact surrounding the nature of Blue Shield's conduct, whether it calculated to eliminate up-front risk and maximize profit by deferring the normal underwriting costs until confronted, post-issuance, with cases in which claims exceed premiums paid. Defendant's experts are expected to testify that that appears to have been the Blue Shield business strategy and policy as evidenced by Blue Shield's underwriting practices and their ambiguous application format, among other things.

Continue reading "Insurance Comapny's Underwriting Errors Cause Serious Issues For Sacramento Couple, Part 8 of 11" »

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

DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS AND DEFENDANT'S SUPPORTING EVIDENCE ARE IMPROPER AND OBJECTIONABLE ON NUMEROUS GROUNDS AND SHOULD BE STRICKEN.

As plaintiffs demonstrate in their separately filed objections to defendant's evidence offered in support of defendant's undisputed facts, much of defendant's evidence is objectionable hearsay or is offered without foundation, or without a showing of personal knowledge, or violates the best evidence rule. The evidentiary items to which plaintiffs object should be stricken on the grounds stated for each item. Defendant's motion cannot succeed with the paltry unobjectionable evidence that remains, evidence which supports only the most basic notions about the nature of the case. The court should deny defendant's motion because it is not supported by competent evidence.

DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES SHOULD BE DENIED BECAUSE IT FAILS TO IDENTIFY, WITH PARTICULARITY, THE EVIDENCE SUPPORTING EACH ISSUE DEFENDANT WISHES TO HAVE ADJUDICATED IN ITS FAVOR.

Defendant's motion for summary adjudication of issues (Motion at page 34) fails to
identify with any particularity the evidence upon which defendant relies for each of the four issues it desires to have adjudicated in its favor. Rather, for each issue, defendant mechanically incorporates by reference Undisputed Material Facts Nos. 1 through 104 as if fully set forth herein. The rules (not to mention fundamental due process considerations) require that a defendant seeking summary adjudication separately identify each claim, cause of action, affirmative defense or issue of duty and each supporting material fact with respect to said claim, cause of action, affirmative defense or issue of duty in a two column format with citations to exhibits, titles, page numbers and line numbers. See California Rules of Court, rules 3.150(C),(d). Defendant has done none of this.

Continue reading "Sacramento Insurance Company Engaged In Bad Faith With Accident Victim, Part 7 of 11" »

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

THE COURT OF APPEAL'S PUBLISHED DECISION ON PLAINTIFFS' APPEAL FROM THE FIRST GRANT OF SUMMARY JUDGMENT IN THIS CASE AND ITS DETERMINATION THAT THE CASE PRESENTS DISPUTED MATERIAL FACTS THAT CAN ONLY BE RESOLVED BY TRIAL CONSTITUTES LAW OF THE CASE AND BARS A SECOND GRANT OF SUMMARY JUDGMENT IN DEFENDANT'S FAVOR.

In Sally Lawrence v. California Physicians' Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Ca.App.4th ___ (2008)], the Court of Appeal stated as follows: We conclude [Health and Safety Code] section 1389.3 precludes a health services plan from rescinding a contract for a material misrepresentation or omission unless the plan can demonstrate (1) the misrepresentation or omission was willful, or (2) it had made reasonable efforts to ensure the subscriber's application was accurate and complete as part of the precontract underwriting process.

Because both of these issues turn on disputed facts, the trial court's summary judgment ruling cannot stand. We also conclude a triable issue of fact exists whether Blue Shield engaged in bad faith, and that the Lawrences adequately alleged a cause of action for intentional infliction of emotional distress. We therefore reverse the judgment. Id., at pp. 459-460.

Defendant's present motion for summary judgment, of necessity, plows the same ground defendant covered in its first motion, i.e., to succeed, the present motion must address the same material issues that were relevant the first time defendant brought its motion. But the Court of Appeal has plainly declared that summary judgment is not appropriate or available in this case because, in its considered opinion, plaintiffs have already demonstrated the existence of disputed facts. Ibid.

Continue reading "Insurance Application Omissions Lead To Suit By Sacramento Accident Victim, Part 6 of 11" »

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

FACTS ESSENTIAL TO JUSTIFY OPPOSITION MAY EXIST BUT CANNOT, FOR REASONS STATED IN THE ACCOMPANYING EXPERT WITNESS DECLARATIONS, NOW BE PRESENTED. DEFENDANT'S MOTION SHOULD THEREFORE BE DENIED OR, ALTERNATIVELY, THE MOTION SHOULD BE CONTINUED TO PERMIT AFFIDAVITS TO BE OBTAINED AND DISCOVERY TO BE HAD.

Code of Civil Procedure section 437c, subdivision (h), provides in pertinent part as follows:
(h) If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or make any other order as may be just. The application to continue the motion to obtain necessary discovery may be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

The decisions make it quite clear that this subsection of the statute is designed to guarantee due process and to ensure that the drastic remedy of summary judgment is not resorted to where, for stated reasons, the party opposing the summary resolution of a case has not been able to obtain the discovery and affidavits that would demonstrate the existence of triable issues of fact. See, e.g., Ambrose v. Michelin North America, Inc., 134 Cal.App.4 th 1350, 1353 (2005); Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30, 34 (2003); Frazee v. Seely, 95 Cal.App.4th 627, 634 (2000); Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 (2001); Vanderbilt v. Superior Court, 105 Cal.App.3d 628, 637 (1980).

Continue reading "Husband And Wife From Sacramento Fight For Accident Coverage, Part 5 of 11" »

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

14. Plaintiff Bob Lawrence sustained disabling injuries in an automobile accident on March 19, 2001.

15. On June 5, 2001, Blue Shield mailed plaintiffs a letter informing them their coverage was cancelled retroactively to December 15, 2000.

16. Before rescinding the contract, Blue Shield had authorized surgery, treatment, care and physical therapy for plaintiff Bob Lawrence's injuries in an amount in excess of $457,000.00.

17. After rescinding the contract, Blue Shield paid for only a small portion of the surgery, treatment, care and physical therapy it had previously authorized for Bob Lawrence.

18. After the rescission the Lawrences were unable to pay the medical bills they had incurred or obtain the surgery, treatment, care and physical therapy which plaintiff Bob Lawrence required because they lacked the money to do so.

19. On December 15, 2000, and thereafter, plaintiffs could have obtained coverage under the health plan offered by plaintiff Sally Lawrence's new employer had they been denied coverage under the Blue Shield plan.

Continue reading "Insurance Company Rescinds Coverage To Sacramento Accident Victim, Part 4 of 11" »

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

STATEMENT OF FACTS

1. Plaintiffs submitted their application for a family health care services contract to Blue Shield in 2000 through insurance agent Kenny Shulman.

2. Blue Shield extended coverage to Sally Lawrence and her family commencing December 15, 2000.

3. Blue Shield conducted no investigation and made no inquiry beyond the application answers into whether the information Sally Lawrence provided on the application was accurate and complete before issuing coverage, and instead performed its risk assessment on the assumption the application contained no errors by assigning values to the risks disclosed.

4. Blue Shield did not make inquiry into the accuracy and completeness of Sally Lawrence's application answers and did not make any inquiry or investigation into the accuracy and completeness of her responses until February 8, 2001, when it referred plaintiffs' contract to its Underwriting Investigation Unit. .

5. The Blue Shield application's agent's certification required Kenny Shulman to ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

6. Kenny Shulman did not ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

7. Plaintiffs' Second Amended Complaint contains causes of action for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing and Intentional Infliction of Emotional Distress.

8. The California Court of Appeal, Fourth District, Division Three, determined that the three causes of action set forth in Plaintiffs' Second Amended Complaint are viable.

Continue reading "Sacramento Insurance Company Mistakes Injure Couple, Part 3 of 11" »

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

Plaintiffs' complaint against Blue Shield contains causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress. Plaintiffs' primary contention is that Blue Shield engaged in prohibited post claims underwriting in violation of Health and Safety Code section 1389.5 when it waited s until after claims had been filed to look beyond the four comers of the application's answers to ascertain whether the answers Sally Lawrence provided were accurate and complete.

The trial court sustained Blue Shield's demurrers to plaintiffs' complaint and granted summary judgment. On appeal, the Fourth District Court of Appeal determined that the complaint's causes of action were viable and that Blue Shield was obliged to complete its medical underwriting and resolve all reasonable questions arising from the written application before issuing coverage. The court specifically determined that medical underwriting requires health care service providers to do more than simply assign values to the risks disclosed on the application. They must make reasonable efforts in every case to make inquiries outside the application and to answer all reasonable questions arising from the information provided on the application to make sure that a potential subscriber's application is accurate and complete. Blue Shield did not do any of that in this case, and plaintiffs sustained significant injury and damage as a consequence of that failure.

Continue reading "Sacramento Auto Accident Results In Insurance Lawsuit, Part 2 of 11" »

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

Plaintiffs' Opposition to Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION
Blue Shield offered health care coverage to plaintiffs based on an on-line application which Blue Shield's insurance agent, Kenny Shulman, prepared and forwarded to Blue Shield after plaintiff Sally Lawrence delivered her paper application for individual family coverage to Mr. Shulman. Sally Lawrence understood that the application asked for only her health history, and she provided it. Had Blue Shield's paper application been clearer and less ambiguous, or had Mr. Shulman asked plaintiffs each question on the paper application as the application's certification section required, the on-line application which Mr. Shulman prepared and sent to Blue Shield would have been amended to include the health histories of Bob Lawrence and their son, Sammy Lawrence, and to accurately reflect the history and status of Sally Lawrence's irritable bowel disclosure.

Significantly, Blue Shield issued coverage (effective December 15, 2000) based on Mr. Shulman's incomplete and inaccurate on-line application. Had Mr. Shulman performed his duty, Blue Shield would likely have denied coverage, in which case plaintiffs would have obtained other coverage which would have been in effect on the date of Mr. Lawrence's March 19, 2001, automobile accident.

Continue reading "Insurance Company Denies Coverage To Sacramento Couple, Part 1 of 11" »

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

Starting with what plaintiff would have earned if not injured in the automobile collision and subtracting what she is able to earn now that she is partially disabled, the future lost income submitted to the jury was $347,352.00.

It was also established that because of plaintiff's partial disability, her ability to contribute household services was diminished by 8 hours a week. Projecting forward to age 65, Mr. Stevens testified that the economic value for the loss of those services was $220,064.00.

It is noteworthy that although defendant complains that the award of economic damages was excessive, her motion for a new trial is conspicuous by its failure to assert that plaintiff's expert analysis of economic loss was incorrect, no less any suggestion as to why that might be so. Simply because Dr. W. could find no medical reason why plaintiff was unable to work for the amount of time she claimed is no reason to set aside the jury's conclusion that plaintiff's witness had established such a medical reason for a past wage loss and future economic losses.

The Court Should Not Remit the Award of Damages

Clearly, the defendant is not happy with the jury's verdict and award of damages. A party's disappointment with the trial result is no reason for a court to issue a remittitur. Defendant makes no claim that the jury was improperly instructed, that evidence was improperly admitted, or that the jurors engaged in misconduct. Rather, defendant asserts because that a properly instructed jury that heard properly admitted evidence and, upon due deliberation, awarded substantial damages, the court should remit the award because defendant presented evidence at odds with the jury's resolution of this case. The contention is lacks merit and should be rejected. The motion for new trial should be denied.

Continue reading "Woman's Future Earnings Limited Due To Sacramento Auto Accident, Part 5 of 5" »

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

The Award of Damages was Not Excessive

Plaintiff's medical bills totaled $24,194.89. In her motion for a new trial, defendant does not contend those expenses were unreasonably incurred.

Although Dr. W. testified that, in his opinion, there was no reason why plaintiff was unable to work for the time she claimed to have been off work as a result of this accident, plaintiff presented extensive and essentially uncontroverted expert testimony that both explained and justified her absence from work and her future economic and non-economic damages.

Dr. Y., who had evaluated the plaintiff a week prior to the trial, concluded that plaintiff's condition had deteriorated since her last therapy treatment, that she needed therapy to strengthen her muscle and tissues around her neck, and that she would require careful monitoring and therapy for the remainder of her life. More specifically, she testified that it was reasonably certain that, during the next 3 to 6 months, plaintiff would require three to four osteopathic treatments a month at a cost of $1,920.

Dr. Y. projected that for the following 3 months, plaintiff would require two treatments per month at a monthly cost of $960.00 for a total of $2,880.00. She would also need physical therapy four times per month for 1.5 months, at $120.00 per visit, and then two times per month for a total cost of $3,960.00.

Continue reading "Defendant In Sacramento Motor Vehicle Collision Challeges Jury Award For Victim, 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 automobile accident case and its proceedings.)

There Was Ample Evidence that Plaintiff was Seriously Injured in the Accident

Plaintiff presented as a woman who had no problems with her neck prior to being struck from behind by defendant. Both treating physicians, Dr. X. and Dr. Y. testified that the accident caused the injury to plaintiff's neck, a disc bulge in her C5 region. Dr. Z., a board certified neurologist, testified that plaintiff's injury was consistent with having been caused by a rear end accident. Not surprisingly, the defense produced an expert, Dr. W., who disputed those findings. Like a murder defendant who tells the jury that he didn't do it but if he did, it was in self-defense,

Dr. W. opined that plaintiff was not hurt in the accident, but if she was, it was minor. His credibility was quickly undermined, however, when he initially testified that plaintiff's post-accident ability to swim and snorkel at the time of the IME was evidence that she was not injured and then was later forced to concede that she had really quit swimming (although recommended by her treating doctor) a year earlier prior to the IME because of a severe allergic reaction to plaintiff's eye from the chlorine in the pool.

The jury heard both plaintiff's treating physicians and board certified neurologist testify and they heard Dr. W.'s testimony and found plaintiff's witnesses to be more persuasive. In her motion, defendant presents no reasoned analysis of any deficiencies in the testimony of plaintiff's witnesses.

Continue reading "Plaintiff's Medical Experts Confirm Sacramento Accident Victim's Injuries, 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 automobile accident case and its proceedings.)

It is noteworthy that the defendant did not produce any eye witnesses to dispute Ms. Diaz's observations. The best that the defendant could say was that she wasn't sure if she braked and that she didn't remember hearing the screeching of tires that typically accompanies sudden braking. Not surprisingly, there was no evidence that the were any skid marks left by the defendant's tires.

Simply because no ambulance was called to the scene and Ms. Hayes drove herself home does not establish, as defendant seems to think it does, that this was a minor accident. It is not an uncommon event for several hours or more to pass before pain from the accident caused injury manifests itself. Moreover, in her motion defendant neglects to mention that her car was totaled, with more than $9,600.00 in damages. The force of the impact was so great that plaintiff's solid steel trailer hitch, which was bolted to the frame of the van, was cracked and pushed into the rear of the van sealing the rear door shut.

Defendant asserts that Dr. Kelkar's unrebutted biomechanical accident reconstruction testimony established that plaintiff could not have been injured as she claimed. No trier of fact is required to accept expert testimony as gospel, even if unrebutted. (In re Marriage of Duncan (2001) 90 Cal. App. 4th 617.) [A]s a general rule, provided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.] [Citation.] This rule is applied equally to expert witnesses. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.)

Continue reading "Eyewitness To Sacramento Auto Accident Helps Victim, 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 automobile accident case and its proceedings.)

Plaintiff's Opposition to Defendant's Motion for a New Trial
The Court Should Not Grant a New Trial Because the Jury's Verdict is Amply Supported by the Evidence

Motion for a New Trial Should Not be Granted Unless the Court is Convinced that the Jury Clearly Should Have Reached a Different Verdict

Code of Civil Procedure §657 provides, in pertinent part, that a trial court should not grant a motion for a new trial on the grounds of insufficiency of the evidence, "unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the... jury clearly should have reached a different verdict or decision." In other words, while a trial court has wide discretion in ruling on a motion for a new trial, the use of the word clearly in §657 makes it evident that such a motion should not be granted unless the trial court is firmly convinced that the jury got it wrong. Simply put, there is no basis for such a finding in this case.

This was No Minor Accident

Citing her own motion, defendant complains that the jury verdict should be set aside because this was a minor accident, making it seem like a fender bender. Not so. Defendant seems to have forgotten, or at least forgotten to discuss, that there was an independent witness, Ms. Vilma Diaz, who had no prior relationship with either party, who witnessed the entire automobile accident unfold in front of her.

Continue reading "Sacramento Auto Accident Results In Serious Injuries, Part 1 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.

LEGAL ISSUES cont.

The defendant, if he was negligent, is solely responsible for the initial injury; liability for the defendant's enhanced or aggravated injury is properly apportioned between the plaintiff the defendant and subsequent healthcare providers in accordance with the rules of comparative fault and Civil Code § 1431.2.

A second legal issue is evidence of the financial interest of the plaintiff's expert witnesses, including their fee arrangements with plaintiff's counsel. The defendant will provide evidence of financial ties between plaintiff's physicians and attorney to demonstrate an ongoing business relationship between plaintiff's physicians and attorney.

A witness may be examined on the issue of possible bias, which includes a financial interest in the case. (See: People v. Mickle (1991)54 Cal.3d 140, 168; People v. Munoz(1984) 157 Cal.App. 3d 999, 1010.) Evidence Code § 780(f) allows for the interrogation or questioning of a witness to determine the credibility of a witness, including the existence or nonexistence of a bias, interest or motive. Whether a treating doctor has a lien in the matter is indicative not only of his pecuniary interest in the case but goes to the issue of credibility and bias and the jury is entitled to know of such financial interest. If the plaintiff loses, the doctor does not get paid.

Continue reading "Automobile Accident Forces Sacramento Victim To Battle Defense Medical Experts, Part 5 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.

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" »

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

Mr. Sunderland sued both Mr. Mazloom and his employer, Lockheed. The appellate court
held Mr. Sunderland was in the course and scope of his employment, noting the following:

1. Mr. Mazloom drove his own vehicle.
2. Lockheed did not pay Mr. Mazloom a mileage allowance while he worked in Lancaster.
3. Mr. Mazloom had already cleared out his office. Thus, his work for Lockheed was finished.
4. Mr. Mazloom made the trip to the fast food restaurant to get food. Thus, it was not a trip that had a mix of personal and business purposes.
5. The trip to In-N-Out Burger had no benefit to Lockheed.
6. Finally, the Court noted that Lockheed had “no control over Mazloom’s choice of
transportation generally, or over his movements at the time he collided with plaintiff’s
vehicle.”

The facts in the present case of Gibbs v.ABC, are critically different and thus require a different
result from the one reached in Sunderland.

1. Unlike Sunderland, Ms. Smythe’s vehicle was provided and paid for by her employer, ABC.
2. Unlike Sunderland, ABC paid for Ms. Smythe’s travel expenses.
3. Unlike Sunderland, Ms. Smythe was in the middle of a multi-day business trip for the benefit of ABC. Mr. Mazloom had already “cleared out his office,” whereas Ms. Smythe was expected by her boss to continue working for ABC in California the day following her collision with plaintiff John Gibbs.

Continue reading "Folsom Resident Paralyzed After Automobile Collision, Part 14 of 14" »

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

Further, personal acts that are “necessary to the comfort, convenience, health, and welfare of the employee while at work” are minor deviations and do not take the employee out of the course and scope of employment. O’Connor v. McDonald’s Restaurants (1990) 220 Cal. App. 3d 25, 30.
For example, in Lazar v. Thermal Equipment (1983) 148 Cal. App. 3d 458, 466-467, the court held that an employee’s decision to stop at a grocery store on the way home from work, even though the store was in the opposite direction than his normal route home, did not remove him from the course and scope of his employment. The court further held the detour was foreseeable because the employee was using a company vehicle to complete his work.
The Lazar court went on to say:

It is the established rule in this jurisdiction that where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when the third person was injured…” (Lazar, supra, at pp. 467-468.)

IV. DEFENDANT'S RELIANCE ON SUNDERLAND v. LOCKHEED IS MISPLACED

In its argument that Nancy Smythe was not in the scope of her employment with
ABC at the time of the collision, defendant relies exclusively on the decision of Sunderland v.
Lockheed (2005) 130 CA4th 1. Defendant’s reliance on Sunderland, supra, is misplaced, and
is easily distinguished from the case at bar.

Continue reading "Injured Sacramento-area Driver Files Suit Against Defendant's Employer, Part 13 of 14" »

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

First it should be noted that the application, evaluation and weighing of these factors cannot possibly be conducted without the court making factual determinations and weighing evidence, a process incompatible with summary adjudication.

In O’Connor v. McDonald’s Restaurant, supra, 220 Cal.App.3d 25 plaintiff was injured in a motor vehicle accident caused by a McDonald’s employee. The employee had voluntarily returned to the restaurant one evening from 8:00 p.m. until 1:00 or 2:00 a.m. in order to do extra cleaning and preparation for a “spring blitz” competition. The employee voluntarily contributed his extra time with a goal of receiving a promotion. He then traveled from McDonald’s to a co-workers house where he socialized until about 6:30 a.m. The accident occurred when he was traveling from the co-worker’s house to his own house. The trial court granted summary judgment in favor of McDonald’s, finding that he was on a special errand for McDonald’s when he voluntarily reported for cleanup duties, but that the stop at the co-worker’s house was a “complete departure” from the special errand and McDonald’s responsibility for his driving therefore terminated before the accident occurred. The court of appeal disagreed, and after applying the factors set forth in Felix v. Asai, concluded that there was a triable issue of material facts as to whether the trip to the co-worker’s house constituted a complete departure from the special errand. O’Connor v. McDonald’s Restaurants of California, Inc. Supra, 220 Cal.App.3d at 33-34.

In applying the factors set forth by the court in Felix v. Asai, the inescapable conclusion is that there is a clear nexus between Smythe’s arrival at the site of the accident and her work for ABC.

Continue reading "Bay Area Automobile Accident Catastrophically Injures Folsom Man, Part 12 of 14" »

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

Where the employee “is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when a third person was injured.” Miller v. Stouffer (1992) 9 Cal.App.4th 70, 78. “If the main purpose of his activity is still the employer’s business, it does not cease to be within the scope of the employment by reason of incidental personal acts, slight delays, or deflections from the most direct route. State Farm Mut. Auto. Ins. Co. V. Haight (1988) 205 Cal,App.3d 223, 243. Under such circumstances, the employer will face respondent superior liability “unless it clearly appears that the servant could not have been directly or indirectly serving his master.” Miller v. Stouffer, supra, 9 Cal.App.4th at 78 citing Loper v. Morrison (1944) 23 Cal.2d 600, 606.

Even if not motivated by a desire to serve the employer, conduct is nevertheless within the course and scope of employment if there is a sufficient causal nexus between the conduct at issue and the employment. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298. A sufficient causal nexus exists where the conduct at issue is “generated by or an outgrowth of work place responsibilities, conditions or events.” Id. at 302.

Continue reading "Folsom Driver Now Quadriplegic After Car Accident, Part 11 of 14" »

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

6. ABC had the Right to Terminate Smythe at Will
One of the most critical factors has been determined to be the right of the employer to end the service of the employee whenever he sees fit. Press Pub Co. supra, 190 Cal. at 120. Here, there is no doubt that Chan had the authority to terminate Smythe at will. (See Fact No. 14)
Each and every factor outlined in the Restatement 2d of Agency dictates a conclusion that the true relationship between Smythe and ABC from April 2006 through and including the date of the accident at issue here, was one of employer/employee and not one of independent contractor. Because of the financial status of the company, a unique agreement was arrived at between Smythe and Chan, and Smythe was not placed on payroll. Nonetheless, the fact that she was engaged full-time, that she was charged with a wide variety of tasks and duties for the benefit of the company rather than hired for a specific project, the fact that Chan could and did dictate what she was to do and how she was to do it, and the fact that ABC provided her with all instrumentalities necessary for doing the work and, perhaps most importantly, that ABC held her out as president and COO all constitute traits of an employer-employee relationship and not one of independent contractor.
3. SMYTHE WAS IN THE COURSE AND SCOPE OF HER EMPLOYMENT AT THE TIME OF THE ACCIDENT

An employer is vicariously liable for the tortious conduct of its employees committed while the employee is in the course and scope of his or her employment. Rodgers v. Kemper Construction Company (1975) 50 Cal.App.3d 608, 617. The policy is based on an economic rational, with the goal being to place the cost of losses caused by the torts of employees that occur within the conduct of the employer’s enterprise upon the business itself, as a required cost of doing business. Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 959-960.

Continue reading "Tragic Car Accident Leaves Sacramento-area Man Paralyzed, Part 10 of 14" »

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

5. The Parties were Operating as Employer/Employee
One of the factors to be evaluated is how the parties saw the nature of the relationship between them. Smythe had no doubt that she was an employee of ABC. The employment of 2006 was substantially the same as the previous employment between 2000 and 2002. (See Fact No. 5) In her opinion, Chan was her immediate superior who could dictate her activities, and if Smythe disobeyed Chan it would constitute insubordination and subject her to termination. (See Fact Nos. 6, 13, 14, 15, 16) She was working full-time (See Fact No. 25, 29) and during both periods of employment had a company credit card, company office, cell phone, laptop, email account and voicemail. (See Fact No. 27) She had transitioned into a long term, full-time position as President and COO, and she was held out as such by Chan. (See Fact No. 20, 21, 25) Certainly in Smythe’s mind she was a long term employee of ABC. (See Fact No. 24, 25)
Although Chan does not describe Smythe as an employee, she admits that Smythe was introduced as President (See Fact No. 20, 21), directed the work of others (See Fact No. 19) and had a role in hiring, firing, and expending corporate funds. (See Fact No. 31)

Continue reading "Folsom Man Sues Company For Catastrophic Auto Injuries, Part 9 of 14" »

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

While it certainly may be true that outside consultants are sometimes hired on a project basis to fill a particular role that the company cannot fill in-house or to provide short-term outside consulting services, such is not the case with the employment of Smythe. As discussed below, she was working full-time for ABC and had no other clients. (See Fact No. 29) She was dedicating her full time efforts to advancing the objectives of the company. She was being held out to customers, potential customers and employees as the president of the company and was filling that role. She was involved in organizational efforts, setting and directing the objectives of the company, assisting with marketing and representing the company at conferences. This is not the traditional role of a consultant, and, in fact, it would be highly unorthodox for a company president to be an outside consultant. Rather than reflecting a true intent to retain Smythe as an independent contractor, the situation she was in with Smythe at the time of the accident was arrived at solely due to economic concerns and a desire to find a structure that would be economically best for both parties. (See Fact No. 26) Where all indicia are to the contrary, the court should, and must, ignore the “Independent Contractor” label assigned by the parties. Toyota, supra, 220 Cal.App.3d at 877.
3. ABC Supplies All Instrumentalities
At the time of the accident giving rise to this action, ABC was being supplied with all instrumentalities necessary to carry on her work for the benefit of ABC, including an office, an email account, a cell phone, voicemail, a computer and a company credit card. (See Fact No. 27) In addition, when she attended the conference in northern California, her expenses were paid by ABC, which provided him with a rental car, corporate housing and a local office in which to work. (See Fact No. 28)
Again, contrary to what would be expected with an independent consultant, ABC provided Smythe everything it would provide any other traditional employee to carry on the work of the company.

Continue reading "Employee At Marin Conference Injures Sacramento-area Man, Part 8 of 14" »

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

2. Type of Business and SMYTHE’s Role in the Business
The Restatement (2d) sets forth several factors with overlapping analyses under the present facts, including (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (h) whether or not the work is part of the regular business of the employer; and (j) whether the principal is or is not in business. Therefore, these will be addressed together.

ABC is a business which provides manufacturing and software solutions for a variety of industries. It employs programmers to develop software. (See Fact No. 17) The organizational structure had a Board of Directors at the top, followed by Victoria Chan, the CEO, followed by Smythe, who was the “acting” president. (See Fact No. 18) Smythe and four others reported to Chan. (See Fact No. 19) Smythe also had authority over four other employees in the company. (See Fact No. 19)

Smythe was given the title of president and was authorized to introduce herself to others as president. (See Fact No.20) Victoria Chan introduced Smythe to customers, potential customers and employees as the president of the company. (See Fact No. 21) Business cards that were in the process of being ordered at the time of the accident, but were never printed, identified Smyhte as the President and Chief Operating Officer. (See Fact No. 22)

Continue reading "Employer Liable For Car Accident Injuring Folsom Man, Part 7 of 14" »

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

The employer’s control is the most important factor, and the others are to be considered “secondary elements.” Toyota, supra, 220 Cal.App.3d at 875; Isenberg v. California Emp. Stab. Com., (1947) 30 Cal.2d 34, 39. “Moreover, it is not the control actually exercised, but that which may be exercised which is determinative.” Toyota, supra, 220 Cal.App.3d at 875.
In applying the factors to the evidence of Ms. Smythe’s employment status, the inescapable conclusion is that she was operating as an employee rather than an independent contractor at the time of the accident that injured plaintiff John Gibbs.
1. Employer Right of Control
Smythe had worked at ABC previously as an employee between January 2000 and July 2002. (See Fact No. 1) She returned to work ABC at in April 2007, and was terminated in July 2007. (See Fact No. 2) During the initial period of employment between 2000 and 2002, she reported directly to CEO Victoria Chan until the end of that period, when David Grillo took over. (See Fact No. 3) Victoria Chan controlled and directed her work for that two-and-half-year period. (See Fact No. 4) Upon her return to the company in April 2007, her relationship was similar; Victoria Chan told her what to do, and Chan could terminate her at will. (See Fact No. 5, 14)
With regard to the conference that Smythe was attending in northern California at the time of the accident, she had been instructed by Chan to attend the ITC conference in Marin. (See Fact No. 6) It would have been an issue if Smythe had declined to attend the conference. (See Fact No. 7) She was told what her objectives were while at the conference. (See Fact No. 8) She was told to travel to the conference, stay at the company house, attend the conference, and take a team to represent ABC. (See Fact No. 9) She did what she was told. (See Fact No. 10) By her second stint with ABC, she had a lot of experience, but Chan was still in charge of her work. (See Fact No. 11)

Continue reading "Man From Folsom Now Quadriplegic After Car Accident, Part 6 of 14" »

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

7. President Smythe’s job was not finished on July 17. Smythe intended to do some work for ABC on the morning of July 18, including checking e-mail and voicemail, doing follow-up, and preparing for her day using an ABC-issued phone and laptop issued for these purposes. Any such work would have been billed accordingly. [Smythe deposition, at 119:7-16; 119:21-121:2.]
B. Nancy Smythe Was an Employee of ABC
The seminal and well-reasoned case of Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, discusses at length the factors to be evaluated in determining employment status.
The most significant factor in determining whether the status of a person performing services for another is an employee or an independent contractor is the right to control the manner and means of accomplishing the result, that is, the details of the work. ‘If the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, an employer-employee relationship exists.’

Id. at 873-874, quoting Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33, 43.

In addition to the determination regarding the right to control the manner and means of the work, the Toyota court also recognized factors set forth in the Restatement (2nd) of Agency, section 220, as additional matters of fact that must be considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

Continue reading "Sacramento-area Driver Catastrophically Injured, Part 5 of 14" »

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

“Q. You had the right to direct Nancy Smythe in her work at ABC. True? A. Yes.”
2. An additional criteria creating an employer-employee relationship is the right to fire at will. Smythe did what she was told by her immediate superior, Chan, because Smythe believed she could be fired otherwise. [Smythe deposition, at 28:3-29:7; 31:2-14. Chan deposition, at 46:14-47:4, set forth below.]
“Q. You had the right to fire Ms. Smythe, if you chose to?
A. Yes.
Q. If he – if you found someone else who you thought could do a better job, you could have fired her and hired another person?
A. Correct.
Q. If she didn’t meet expectations, you could fire her?
A. Correct.
Q. If you decided to take the company in a different direction, you could fire her?
A. Correct.
Q. You could fire her whenever you felt like she wasn’t helpful?
A. Correct.”

3. In keeping with her status as an employee as of July 2006, according to CEO Chan, Smythe was “Acting President” of ABC. [Chan depo, at 25:19-26:13.] Smythe had the responsibilities of the President of ABC. [Smythe depo, at 108:11-20.] Chan introduced Smythe as President and Chief Operation Officer. [Chan depo, at 100:25-101:7.]

Continue reading "Folsom Driver Injured in Automobile Crash, Part 4 of 14" »

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

2. Even if an agreement appears unambiguous, the Court must consider extrinsic evidence disclosing a latent ambiguity. [Wolf v. Superior Court (2004) 114 CA4th 1343, 1351]
3. No weighing of evidence. Matters going to the weight or credibility of evidence must be disregarded. One witness opposing the motion is sufficient to controvert a dozen supporting the motion. [Mann. V. Cracchiolo (1985) 38 C3d 18, 39; Binder v. Aetna (1999) 75 CA4th 832, 840]
4. Uncontroverted declarations must be accepted as true. [CCP $437c(e)]
5. The Court must consider not only plaintiff’s direct evidence but also all inferences that can be reasonably drawn from plaintiff’s evidence. A reasonable inference is sufficient to create a triable issue of fact and defeat a motion for summary judgment. [Hulett v. Farmers (1992) 10 CA4th 1051, 1059]
6. No weighing of reasonable inferences. [Aguilar v. Atlantic Richfield (2001) 25 C4th 826, 856]
7. Plaintiff’s declarations and evidence opposing the motion must be liberally construed, but defendant’s declarations and evidence are to be strictly construed. This reflects the cautious judicial attitude about granting summary judgment and depriving the plaintiff with the right of trial. [D’Amico v. Board of Medical Examiners (1974) 11 C3d 1, 21; Binder v. Aetna (1999) 75 CA4th 832, 839; Powell v. Kleinman (2007) 151 CA4th 112, 125 – 126]
Applying the above rules to the case at bar, defendant’s motion should be denied.

Continue reading "Bay Area Car Crash By Employee Results In Catastrophic Injury, Part 3 of 14" »

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

II. LEGAL STANDARD
A party who seeks a court’s action in its favor bears the burden of persuasion thereon. (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 (emphasis added).) Therefore, defendants moving for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question “cannot be established,” or that “there is a complete defense” thereto. (Aguilar, supra, at 850.)
If there is even one triable issue of material fact the motion must fail. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 854-855) Additionally, the moving party’s evidence must be strictly construed “in order to avoid unjustly depriving the plaintiff of a trial.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) [See The Rutter Group, Civil Procedure Before Trial, Chapt. 10-E, §§ 223 et seq.]
As the moving party, ABC has two opportunities to submit pleadings to the Court. Plaintiff John Gibbs has only one such opportunity. Why? This is because ABC has the burden of persuasion and, in addition, the following rules apply:

Continue reading "Automobile Accident Leaves Folsom Driver Paralyzed, Part 2 of 14." »

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

Plaintiff, JOHN GIBBS, submits this Opposition to Defendant ABC MANUFACTURING, INC’S (hereinafter, “ABC”), Motion for Summary Judgment.

I. FACTS
NANCY SMYTHE, who had previously been employed by ABC, returned to the company in April 2006. There was never any formal agreement. During the years Ms. Smythe was not working for ABC, the Chief Executive Officer (“CEO”) of ABC, Victoria Chan , had from time to time asked Ms. Smythe to return. In April of 2006, Ms. Smythe sent CEO Chan an email offering to consult for a short period.
While initially anticipating this would be a short term, part-time assignment, the job quickly morphed into full-time employment during which Ms. Smythe was an employee, engaged in all aspects of running, improving, and directing the company. CEO Chan told not only Ms. Smythe but also ABC customers, potential customers, and employees that Ms. Smythe was ABC’s President and Chief Operating Officer. Smythe was working full time, was paid hourly, and never took on any other consulting clients. As an employee and President, Ms. Smythe’s work was controlled and directed by CEO Chan. Ms. Smythe served at Chan’s pleasure. Ms. Chan had the right to fire employee Smythe without notice.
Each year in July, ABC attended a conference of international technology leaders in Marin County (“ITC Conference”) with the hopes of finding new customers and expanding its manufacturing and business base. In 2006, CEO Chan planned to attend and was a scheduled speaker at the conference. She directed ABC President Smythe to attend; she complied. CEO Chan, President Price, and a number of other lesser ABC employees made the trip from ABC’s headquarters in Austin, Texas to Marin County, California where the ITC conference was held. It was a multi-day rip to promote ABC.

Continue reading "Sacramento-area Man Paralyzed in Car Accident, Part 1 0f 14" »

On Saturday, a bus overturned on Highway 80 near Truckee killing one and injuring many. The bus was carrying employees to work at a Lake Tahoe ski resort. The deceased victim was ejected from the bus. The crash is under investigation.

Twenty-five occupants on board, including the driver, were injured and taken to area hospitals, according to California Highway Patrol Officer Steve Skeen. Four people were taken by helicopter from the scene and one person transferred between hopsitals by air.

A spokeswoman for one hospital treating accident victims said one person is in critical condition and five are serious. The Associated Press is reporting that five people were critically hurt. Skeen said the driver suffered significant injuries.

The shuttle bus is owned by the Resort at Squaw Creek and was carrying employees from their homes in the Reno area to jobs in Squaw Valley. The crash occurred in clear weather at 8:28 a.m. on westbound Interstate 80 west of Floriston and just east of the Hirschdale exit.

Investigators are looking into driver fatigue as the cuae of the crash. CHP spokesman Steve Skeen said Sunday the driver remains in the hospital with head trauma and is no condition to be questioned at length. The crash happened at about 8:30 a.m. in clear conditions, with no other vehicles near the bus, police said. Skeen said the 66-year-old driver may have been on the road since 5:30 a.m. or before.

Continue reading "Bus Accident Near Truckee Kills One, Many Injured" »

Donte' Stallworth, a star NFL receiver for the Cleveland Browns, was charged Wednesday with DUI and vehicular manslaughter for his role in the death of a pedestrian in Miami on March 14, 2009. Stallworth's automobile struck and killed a 59-year-old man who finished his construction work shift around 7:15 a.m., and was attempting to cross the street. Stallworth grew up in Sacramento and played football for Grant High School before accepting an athletic scholarship to the University of Tennessee.

The twenty-eight-year-old Stallworth was detained after the automobile-pedestrian accident and subjected to field sobriety testing. According to his blood test, Stallworth's blood-alcohol level was .126, well above the .08 level allowed under Florida (and California) law.

"I hit the man lying in the road," Stallworth told officers arriving to investigate the crash, according to the affidavit. One officer smelled alcohol on Stallworth's breath and said that his eyes appeared bloodshot and watery. Stallworth has expressed public sympathy for the family of the victim.

If convicted of the manslaughter charge, Stallworth would face up to 15 years in prison.

"Whenever a deadly accident occurs and a driver is impaired, families suffer," said Miami-Dade State Attorney Katherine Fernandez Rundle in a statement. "I can only repeat this message over and over: If you are going to drink, don't drive."

Continue reading "NFL Star From Sacramento Charged In DUI-Pedestrian Fatal Accident" »

A car chase in Sacramento's midtown area ended in a three-vehicle crash Tuesday night, with the driver of a stolen car sent to a hospital with major injuries, California Highway Patrol officials said. The chase started at 16th and X streets about 8:40 p.m. when a CHP officer in a cruiser saw a car traveling the wrong way on 16th Street, said Sgt. Dan Brito of the CHP. The officer tried to stop the gray early-'90s model Toyota Camry when it accelerated, Brito said.

During the high-speed pursuit, the driver of the Camry swerved to avoid the crash but lost control and began fish-tailing down X Street, Brito said. Near the end of the block, the Camry slammed into a parked Toyota Corolla, mangling the car and sending a Volvo station wagon parked in front of it careening down the street, where it slammed into a nearby apartment building about 100 feet away.

The Camry, which had been reported stolen, flipped onto its roof, ejecting two passengers onto the nearby freeway embankment and trapping the driver and front passenger in the car, Brito said. The driver of the car sustained major injuries in the crash, Brito said. The passengers, described as boys about 16 years old, were apparently uninjured in the crash but were taken to UC Davis Medical Center, along with the driver, as a precaution, Brito said.

Continue reading "Sacramento Midtown Car Chase Ends In Crash" »

A 70 year old man was killed while crossing the street in North Highlands, a suburb of Sacramento.

The victim was struck while crossing Elverta Road outside of a crosswalk near Walerga Road, the California Highway Patrol said.

CHP said that the motorist, who was driving westbound on Elverta Road, didn't see the pedestrian.

We here at the offices of Moseley Collins wish to express our sincerest condolence's for the victim's families in this tragic death.

If you have any questions, please contact the law offices of personal injury attorney Moseley Collins on the web or by calling 916-444-4444.

Source: http://sacbee.com/

According to an official CHP report delivered to the Colusa County district attorney, the driver involved in a fatal Colusa County bus crash was exhausted and dozing off at the wheel.

The case is in review to determine whether criminal charges will be pressed against the driver. The driver could be charged with either a felony or a misdemeanor.

The crash occured on October 5th near the town of Williams, north of Sacramento. The casino-bound charter bus veered off a narrow rural road into a ditch. The crash killed ten people and injured 33, including the driver.

The report indicates that the crash was caused by extreme driver fatigue. Eyewitness accounts say that the company's owner, who died in the crash, grabbed the wheel in a futile effort to avoid crashing.

We here at the law offices of Moseley Collins send our deepest sympathies to the families who lost loved ones in the crash.

If you have any questions, please contact the law offices of Sacramento personal injury lawyer Moseley Collins on the web or call 916-444-4444.

Source: http://sacbee.com/

A passenger vehicle and a railroad train collided early Monday morning, reports California High way Patrol online.

The collision occured around 5:15 a.m. at Florin Road, just east of 29th Street, in south Sacramento.

The driver of the passenger vehicle suffered moderate injuries and was taken to a local area hospital, says Sacramento P.D.

Police are still in the process of completing their investigation.

If you have any questions about car accidents, please contact the law offices of Sacramento personal injury lawyer Moseley Collins on the web or at 916-444-4444.

Source: http://sacbee.com/

A Sacramento woman was killed by a suspected drunk driver, California Highway Patrol officials said Tuesday.

The 38-year-old mother of 5 had just left her apartment in the 9100 block of Madison Avenue when, around 7:15 pm, she was t-boned by the suspected drunk driver.

Authorities said that a white Ford F-350 pickup was heading eastbound on Madison when it veered off the road and into the victim’s vehicle. The truck hit the victim on the driver’s side, causing the vehicle to spin and come to rest in a grassy area.

CHP officials said that the driver of the F-350 lost control of his vehicle in the rain. He was later treated at a hospital for minor cuts and scrapes. Afterward, he was booked into the Sacramento County jail on felony charges of vehicular manslaughter and driving under the influence.

The victim was pronounced dead at the scene of the incident.

The mother of five leaves behind her husband and five sons, all between the ages of 4 to 11.

We here at the Law Offices of Moseley Collins express our deepest sympathies for the victim’s family.

For more information, please contact personal injury attorney Moseley Collins on the web or at 916-444-4444.

Sitting at the light just like I did every day of the week on my ten mile commute to work, I started adjusting the radio. I was tired of the talk radio and looking for some “feel good” music when BAM! My car leaped forward like a rabbit and I automatically pressed the brake harder to stop it before I hit the cross traffic.

What a shocker! I had just been rear-ended and I had no clue. I felt like I had just dropped 10 floors in an out of control elevator and hit the bottom floor at full speed.

Now the traffic light turned green and cars on each side of me moved forward leaving me sitting there like a stranded ship. I pushed myself up from the steering wheel and looked in the rear view mirror. All I could see from my low sedan was my rear window full of an SUV grill. It looked enormous even though it was just a regular SUV.

Traffic was passing me like a rock in a stream as I checked my fingers to see if they worked. Everything seemed to be OK. I turned the rear view mirror towards me to see my face, which also looked OK. My nose was starting to throb and I could feel my heart beating.

I noticed the door made a new squeaking noise as I opened it and carefully stood up out of the car. I felt like I was getting out of bed after a bad nights sleep.

I slowly walked back to the SUV and all I could see through the windshield was air bags and a hand pressed against the driver’s window.

Continue reading "Rear Ended in Sacramento - What a Shocker!" »

Unless your name is Evil Knievel, you are probably a person who likes to avoid perilous situations while driving in your car. Here are a few pointers that might help:

1. Never drink and drive,
2. Don't speak on your cell phone,
3. Check your side-view and rear-view mirrors often, and
4. Avoid Watt Avenue.

While the first three of my pointers are well known, if not well followed, by every driver between the Pacific and Atlantic, the fourth is probably new to you.

According to a report by Caltrans, called the "5 Percent Report", Watt Avenue is among the most dangerous streets in California! The report is based upon the crash rates on half mile segments of streets between 2004 and 2006. The study included local cities Folsom, Orangevale, Rancho Cordova, CItrus Heights, Roseville, Placerville, and more. The city of Sacramento is the second most crash-prone city in California, with nearly 100 high accident "hot spots". Of those 100 hot spots, nine are strung along Watt Avenue.

According to the Sacramento Bee, Watt is so prone to car accidents because it is one of the few streets that not only crosses the American River but also connects Highway 50 and Interstate 80. The high number of streets that pour into it and the popular Arden mall that sits near it doesn't help either.

California Highway Patrol's Lizz Dutton commented to the Bee,

It's an aggressive street. It's so busy, and people are coming at you from every direction.

According to the CHP, there have been over 8,000 car accidents on the street in the last decade.

Watt is not alone among Sacramento's streets condemned by Caltrans' report: Highway 99 near 12th Avenue keeps it company as well as sections along the Northgate, Folsom, Fair Oaks, and Stockton boulevards, and several other areas in South Lake Tahoe and Downieville.

In areas such as these, as well as many others, car accidents occur every day. As a personal injury lawyer for the last 27 years, Moseley Collins has worked with many people who were wrongly injured in car accidents.
.
When someone is seriously injured in a car accident, suddenly everything in their life becomes vulnerable; their job, their home, their family's welfare. When the car accident was not their fault, they are a victim.

At the Law Office of Moseley Collins, we fight for the victims of car accidents every day. We do our best to insure that our clients receive what they are owed and what they need to put their lives back together. If you or a loved one has been seriously injured in a car accident that was not your fault, call us. We are in business to help people just like you. There is never a fee until we win your case.

Call us at (916) 444-4444, or visit our website at www.moseleycollins.com.

God bless.

August 1, 2008 was a very hectic and chaotic time for early morning commuters on Interstate 5, in San Diego, California. Four people were in a car, when they suddenly lost control of the car and crashed. CHP officers found alcohol in the drivers system, and the 3 passengers in the car were immediately submitted into UCSD Medical Center with very critical injuries. this crash only involved one vehicle, but managed to shut down the transition ramp from eastbound Interstate 8 to southbound 5 for an hour and a half. No further information has been disclosed to the public.

According to www.MAAD.org:

In 2006, an estimated 15,827 people died in alcohol-related traffic crashes—an average of one every 33 minutes. These deaths constitute 37 percent of the 42,532 total traffic fatalities. Of these, 13,470 involved a driver with an illegal BAC (.08 or greater). On average someone is killed by a drunk driver every 39 minutes.

About three in every ten Americans will be involved in an alcohol-related crash at some time in their lives.
Learn More
In 2002, surveys estimates that Americans took over 159 million alcohol-impaired driving trips, compared with only 116 million in 1997.

Over 1.46 million drivers were arrested in 2006 for driving under the influence of alcohol or narcotics. This is an arrest rate of 1 for every 139 licensed drivers in the United States.
Learn More
In 2002, 2.3% of Americans 18 and older surveyed reported alcohol-impaired driving, including 3% of 18-20 year olds and 4.1% of 21-34 year olds.

Of the over 159 million alcohol-impaired driving trips estimated that Americans took in 2002, over ten percent (18 million trips) were made by 18-20 year olds.
Learn More
Since 1980 (the year Mothers Against Drunk Driving was founded), alcohol-related traffic fatalities have decreased by about 44 percent, from over 30,000 to under 17,000 and MADD has helped save over 300,000 lives.

Alcohol-related crashes in the United States cost the public an estimated $114.3 billion in 2000, including $51.1 billion in monetary costs and an estimated $63.2 billion in quality of life losses. People other than the drinking driver paid $71.6 billion of the alcohol-related crash bill, which is 63 percent of the total cost of these crashes.

If you or a loved has been injured or killed from a car accident and it wasn't your fault, you have a claim for personal injury or wrongful death. It is very important that you find an experienced attorney to fight for your rights as a victim. So many times people incur huge bills after an accident like this.

Moseley Collins is a Sacramento personal injury attorney, specializing in major injury cases, including people injured or killed by car accidents.

Paul Smith was a fatal victim in a drunk driving accident on Friday, August 1st in Sacramento, California. Smith was a passenger in a car driven by Kirk Jones; both were Sacramento residents. Jones was driving a Pontiac, and was traveling at about 70 mph on Highway 116 when he attempted to pass another car while crossing a double yellow line. Jones swerved back into his own lane to avoid on-coming traffic and hit the side of the car he was passing. Eventually Jones' car hit the guard rail and came to a complete stop, but Paul Smith suffered major injuries and died at the scene. Jones suffered minor injuries and was arrested on suspicion of drunk driving and vehicular manslaughter.

It is a tragedy Paul Smith died, but there will always be risks when you get in a car with a drunk driver. It's a risk that's not worth taking. Paul Smith would still be alive today if he had not gotten in Jones' car, but rather had found another way home.

In 2006, an estimated 15,827 people died in alcohol-related traffic crashes—an average of one every 33 minutes. These deaths constitute 37 percent of the 42,532 total traffic fatalities. Of these, 13,470 involved a driver with an illegal BAC (.08 or greater). On average someone is killed by a drunk driver every 39 minutes.

About three in every ten Americans will be involved in an alcohol-related crash at some time in their drivers.

Continue reading "Sacramento Man Killed By Friend In Drunk Driving Accident" »

Posted by Moseley Collins | Permalink | Email This Post

Posted In: Car Accidents