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When are punitive damages appropriate in a car accident case?
Many different variables come into play in determining whether a car collision might give rise to an award of punitive damages. Simple negligence is not sufficient to create a factual scenario for awarding punitive damages. Even reckless conduct or driving drunk may not lead to an award of punitive damages. But if you add to the mix circumstances which show a willful disregard for the safety of others, or evidence which shows a pattern of serious misconduct, the case might warrant the possibility of punitive damages.
What Is the Difference Between Compensatory and Punitive Damages?
Compensatory damages are those which are intended to reimburse the victim for specific losses he has suffered, such as lost wages, medical expenses and pain and suffering damages. Punitive damages are those which are intended as punishment for the defendant and his conduct. Punitive damages are also referred to as exemplary damages.
When Can Punitive Damages Be Awarded?
The circumstances for awarding punitive damages in a car crash claim has to arise above a mere accident. For punitive damages to be applicable, there must be severe forms of misconduct. For example:
- Two drivers are engaged in a game of chicken. The two drivers are competing to see who will swerve first, but the driver who swerves loses control and strikes a nearby motorist.
- A drunk driver on his second or third DUI blows more than double the legal limit. He is picked up after striking a pedestrian walking through a residential area.
- A driver who is accidentally cut off by another motorist experiences an episode of road rage. His speeding and carelessness results in multiple injuries, including victims left with lifelong disabilities—such a traumatic brain injury (TBI) or paralysis.
California Civil Code Section 3294 states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Key terms are defined as follows:
- Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.
- Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
How Are Punitive Damages Determined?
Some states place a cap on punitive damages in personal injury settlements, but California does not. The law only states punitive damages must be proportionate to your compensatory damages. This means that cases involving serious and permanently disabling injuries may be eligible for the highest punitive damages.
While not the deciding factor, state law also requires that the defendant's financial situation be taken into consideration when deciding the dollar amount of the damages to be awarded. Since the purpose of punitive damages is to deter future bad behavior, a wealthy defendant with ample resources can be expected to pay a higher punitive damage award than someone who is living paycheck to paycheck. A large punitive damage claim can provide the deterrent impact on a wealthy person or company while a smaller award might accomplish the same purpose on a person of lesser financial means.
It should be noted that insurance policies do not cover awards for punitive damages. This means if you have a punitive damage claim you are going to pursue you need to make sure the target of the claim has ample funds to pay an award of punitive damages.
How Can an Attorney Help Me Prepare My Case?
Since cases involving punitive damages involve complex factual and legal issues, it is vital that you have an experienced personal injury attorney available to advocate for your needs. Your attorney can help you line up evidence, document expenses, and negotiate with the insurance company or others on your behalf. This leaves you free to focus on recovering from your injuries to the fullest extent possible. Personal injury attorneys work on a contingency fee basis, which means there is no upfront cost for your legal representation. The attorney accepts a percentage of your final settlement as the fee for his services. If the attorney is unsuccessful in a contingency claim, then he does not get paid for his work.
Inland Empire Law Group's legal team is committed to helping injured California residents receive the personal injury compensation deserve. Call (888) 694-3529 today to schedule a free, no-obligation consultation.
How will self-employment affect my personal injury case?
Recovery for lost wages can be a significant portion of any serious personal injury claim. However, receiving a fair settlement becomes more complicated when you are self-employed and your income fluctuates or is based on more than your own efforts.
Someone who is self-employed works for himself instead of being an employee of another business. The self-employed are typically either owners of unincorporated small businesses or work as independent contractors.
Self-employment encompasses a wide range of professions and industries. Salespeople, real estate agents, writers, artists, musicians, accountants, mechanics, doctors, and software developers are just a few of the many different types of self-employed people you will find working across the United States. People who are contractors in the gig economy working for services such as Uber or Fiverr are also considered self-employed, even if they only work through one service provider.
Types of Compensation
In a personal injury claim for injuries that are the result of another party's negligence, you are entitled to compensation for medical expenses, pain and suffering, and lost wages. As a self-employed person, your lost wages include:
- Lost income
- Loss of future earning capacity
- Lost business opportunities
- Lost goodwill or damage to your professional reputation
- Lost profits that can no longer be invested back into your business
If you were forced to hire someone to provide essential business services while you were recovering from your injuries, this person's wages could be included in your request for compensation. If applicable, overtime pay for existing employees who were required to take on additional duties in your absence can also be included.
Documentation is absolutely vital to proving how much income your business generates. Supporting documents your attorney might ask for include:
- Income tax returns
- Bank statements
- Work orders
- Profit and loss statements
- Forms 1099-MISC
- Deposit information for cash and credit sales
- Payroll records
If you have been self-employed for several years, these documents will probably be fairly easy to provide. However, if you are newly self-employed or your income has recently changed dramatically, you may need to think outside the box to provide the appropriate proof. For example, attorneys sometimes recommend submitting letters from clients you have been working with or those who have agreed to have you perform work in the future. This avenue may be necessary if you have no other way to prove what your normal income.
Having an economic loss expert testify on your behalf is another way to support your claim for damages. An economic loss expert can assess your earning potential given your education, past experience, and the local market for your services. He can also help to provide insight into how your injuries will affect your ability to support yourself in the future.
How an Attorney Can Help
Due to the challenges associated with accurately estimating self-employment income, having an attorney to advocate for your needs throughout the settlement process is in your best interests. Your attorney will be able to assess the value of your case, help you properly document your income, and negotiate with the insurance company on your behalf.
It is a common misconception that legal representation is unaffordable when you do not have a steady income, but personal injury attorneys accept cases on a contingency fee basis. This means you owe no money upfront and will pay a percentage of your settlement to your attorney as the fee for representation. With this arrangement, you can rest easy knowing that your attorney is committed to helping you protect your right to compensation.
The attorneys at Inland Empire Law Group are dedicated to helping California residents receive the personal injury compensation they need to move forward with their lives. Call today to schedule a free, no-obligation consultation at our Rancho Cucamonga or Victorville offices.
What is a release of claims?
A release of claims is the document the insurance company or a defendant requires to be signed in order for payment to be made to settle the accident-related injuries. The release of claims details the compensation you will receive for your medical expenses, lost wages, and pain and suffering in exchange for a release from any further claims.
Should You Sign?
If you are offered a release of claims a few weeks after your car accident, do not sign the document without careful consideration. Insurance companies are typically eager to settle claims early before you realize the extent of your injuries, so signing too soon may be a big mistake.
If you sign a release of claim, then seek the advice of counsel because you continue to hurt, the lawyer cannot reverse the effect of the release. Even if you do not intend to pursue a claim, you should consider consulting with an attorney to determine if signing a release is in your best interest.
The primary reason that attorneys caution against signing a release of claims too early in the process is that the severity of car accident injuries can be hard to predict. An injury that first seems to be a minor inconvenience may turn out to be much more serious. For example:
- Whiplash. Although most people with whiplash do make a full recovery, others are left with chronic pain that requires therapy, medication, and time off work well into the future.
- Concussion. A mild traumatic brain injury that happens after a blow to the head, a concussion can sometimes lead to a complex disorder called post-concussion syndrome. This condition causes symptoms such as chronic headaches, dizziness, and cognitive difficulties.
- Back pain. Don't assume that a backache will get better over time. Back pain after a car accident may be caused by damage to muscles and ligaments or a herniated disc. This can lead to chronic pain.
- Injuries to children. Since young children lack the communication skills necessary to fully articulate their symptoms, it is easy to underestimate a child's needs. Children may require treatment for post-traumatic stress disorder (PTSD) after a car accident which shows up later.
Another factor to consider when deciding if a settlement is appropriate is that pain and suffering compensation is often undervalued in the early stages of a claim. Pain and suffering damages are intended to reimburse you for the physical pain as well as the emotional trauma of the accident. Pain and suffering damages develop over time so and early settlement may not properly capture all these damages.
Maximum Medical Improvement and Your Settlement Offer
Regardless of the extent of your injuries, it is recommended that you refrain from settling your case until you have reached maximum medical improvement (MMI). This is a term that indicates you have either fully recovered from your injuries or have stabilized your condition to the extent that it is possible for experts to accurately estimate what your future medical needs and future pain will be. Your doctor can explain when MMI is likely to occur for your injuries.
How a Personal Injury Attorney Can Help
A personal injury attorney offers several valuable services to resolve your car accident claim. For example:
- Assess the value of your case. While it is impossible to guarantee a specific outcome, a skilled personal injury attorney can assess the value of your case based on past experience with similar types of injuries.
- Document your expenses. To receive reimbursement for your damages, you need to have all of the proper documentation. It is easy to overlook required documents when you are distracted by your recovery, but an attorney will know exactly what's needed.
- Line up relevant expert testimony. If your case involves anticipated future medical expenses or loss of future earning potential, expert testimony will be crucial in establishing damages. Your attorney can locate the most qualified experts to testify on your behalf.
- Negotiate with the insurance company. The insurance company's goal is to make a profit, not to fairly compensate you for your injuries. Having someone advocate for your needs is critical.
Inland Empire Law Group's legal team is committed to help compensate California residents who have been injured due to the negligence of others. Our legal team wants to help you move forward with your lives. Call today to schedule a free, no-obligation consultation at our Rancho Cucamonga or Victorville office. (909) 481-0100. Call now and see the difference between our office and other lawyers in Southern California.
Can I still sue for damages if I cannot remember the accident?
It is common for people who are injured in serious car accidents not to remember the incident clearly. However, not remembering the accident does not necessarily mean that you are not entitled to seek compensation for your accident-related expenses.
Reasons for Memory Lapses
Common reasons for memory loss related to a car accident include:
- Traumatic brain injury. A severe brain injury can leave the victim unable to function independently, but even a concussion can create gaps in memory.
- Emotional trauma. In an accident where someone was severely hurt or died, the mind can shut down to avoid dealing with the emotional trauma. Memories may return at a later date, but may only be in brief flashbacks.
- Substance abuse. Someone who was impaired by drugs or alcohol may not remember the accident due to their substance abuse.
- Previous cognitive impairment. In cases involving accidents caused by older drivers with signs of Alzheimer's or dementia, a pre-existing condition may be the reason they cannot recall the details of the crash.
Types of Evidence Used in a Car Accident Claim
If you cannot remember the details of the accident that caused your injuries, you will want to consider using the following evidence to help establish fault:
- Police reports. The police report is not normally admissible in court, but can play a significant role in settlement negotiations if it shows that the other driver is clearly at fault. Reports can also provide contact information for witnesses and details that may help to fill in some of the gaps in your memory.
- Eyewitness testimony. Witnesses may include other vehicle occupants, nearby drivers, or pedestrians who happened to be in the area when the event occurred.
- Black box data. A vehicle's black box can contain data on variables such as speed, acceleration, steering, braking, airbag deployment, and seat belt use.
- Surveillance video. Live traffic cameras or security systems from a nearby business may have caught the accident on tape.
- Photos. Witnesses, law enforcement, or members of the media may have taken photos of the accident scene.
- Vehicle damage reports. Certain types of car accidents leave well-defined patterns of vehicle damage, which means damage can be used to indicate fault. For example, in a rear-end collision, the driver who hits another car from behind is almost always at fault. If the back of one car and the front of the other car are the only damaged areas, this provides a strong indication of what happened.
- Accident reconstruction experts. These professionals use their background in physics and vehicle dynamics to interpret available data, including photos, event timelines, vehicle damage, and testimony.
How Comparative Negligence Laws Affect Your Claim
If the evidence suggests you were partially at fault for the accident, you can still collect compensation. However, California's pure comparative negligence laws requires that your settlement be reduced by your assigned percentage of fault. This means that if you were 30 percent responsible for the accident, you'd only receive 70 percent of the settlement you would otherwise be entitled to. A good personal injury attorney can help minimize the amount of fault attributed to your negligence. If the parties cannot agree on the percentage of fault, a judge or jury who tries the case will be required to assign percentages of fault.
Protecting Your Right to Compensation by Hiring an Attorney
A personal injury claim can seek compensation for:
- Medical expenses such as emergency care, diagnostic tests, surgery, hospital stays, and medication
- Anticipated future medical costs for an accident-related disability
- Lost wages during the recovery period
- Applicable loss of future earning potential
- Pain and suffering
If you have recently been injured in an accident that you cannot accurately remember, retaining the services of an experienced personal injury attorney is the best way to protect your right to compensation. Your attorney can help you line up evidence to assess fault, document expenses, and negotiate with the insurance company on your behalf.
Personal injury attorneys accept cases on a contingency basis, which means the attorney will ask for a percentage of the settlement in exchange for representation. This means you do not need to pay any money upfront for a retainer or come up with out-of-pocket funds while you are still dealing with the effects of your injuries.
Call today to schedule a free, no-obligation consultation with Inland Empire Law Group's legal team at 888.694.3529. Appointments are available in our Rancho Cucamonga and Victorville offices.
What factors are considered when deciding appropriate damages for a wrongful death suit?
A wrongful death claim is a type of personal injury case designed to seek compensation for family members whose loved one is killed as the result of negligence or misconduct by another party. Wrongful death cases are initiated by the immediate family members, such as a spouse, domestic partner, children, or possibly parents. The purpose is to seek damages for the losses suffered related to the victim's death.
Types of Damages in a Wrongful Death Claim
Reimbursable expenses are those which are easily verified. In a wrongful death claim, these include medical expenses up to the time of death and associated funeral and burial costs. Losses can also include the loss of financial support the deceased person contributed to the family members left behind.
Damage amounts which may be recovered by the estate and/or family members as a result of the victim's death, include:
- Age. A person in the prime of their life with an established earnings record will result in a higher economic recovery then someone near the end of their average life expectancy, or someone young with no history of earnings.
- Physical health. If the victim had a medical condition that could reasonably have been expected to shorten his or her life expectancy, this may be taken into consideration.
- Occupation. The value of lost wages assigned to the estate is higher when a victim is employed in a higher earning occupation.
- Future earning capacity. Victims who were young, educated professionals in fields with a strong opportunity for professional advancement will have highest values assigned to their cases due to the likelihood that their earning capacity would have continued to increase each year. If the victim was a child, assumptions about education and future earning potential are made using statistical tables that take various demographic characteristics into account, but if there is no expectation of support by the child for the parents, then there is no loss of support suffered by the parents.
- Value of care provided to others. If the victim was a parent with young children or the caretaker for an elderly family member, the fair market value of this uncompensated labor is considered wages for the purpose of calculating a claim.
- Value of financial support provided to others. If the victim provided financial support to a spouse, parent, child, or other relative, the value of this support can be considered in calculating the claim.
Punitive damages are damages which are awarded solely to punish the defendant for serious misconduct that demonstrates a disregard for the wellbeing of others. Punitive damages are fairly rare in wrongful death cases, with the exception of claims involving nursing homes, elder abuse or product liability claims. The are some instances when a traffic collision can result in the recovery of punitive damages.
Effect of Policy Limits
In personal injury cases involving a large multi-national corporation's liability for a defective product, collectability of a settlement is generally not an issue. Large corporations are extremely well insured so insurance coverage is not a serious consideration.
Unfortunately, when you are dealing with a small business or a private individual, policy limits will often play a key role in the settlement process. Even if you have a solid case to argue for substantial damages, you can only collect up to the policy's limits unless other assets from the defendant are available to fund a settlement.
Keep in mind that negligence awards can typically be discharged in a bankruptcy suit. This means that pushing for an award that is too excessive for the defender's resources may be a waste of time and energy.
Effect of Tax Liability
Wrongful death settlements are generally non-taxable if the payments are intended to compensate for the pain and suffering experienced by the victim and his family members. If the damages are intended to be punitive, they are taxable. It is recommended that you consult with an experienced certified public accountant if you have questions about your tax liability and how this affects the fairness of a settlement offer.
Protecting Your Right to Compensation
The best way to protect your right to compensation in a wrongful death claim is to retain the services of an experienced attorney. Your attorney can line up evidence to support your case and negotiate with the insurance company on your behalf.
The experienced legal team at Inland Empire Law Group is committed to helping California residents seek compensation following the death of a loved one due to another party's negligence. Call today to schedule a free, no-obligation case review at either our Victorville or Rancho Cucamonga location.
How will unemployment affect my personal injury case?
Wage loss can make up a substantial portion of a personal injury claim if the injuries are so severe that they would limit a person’s ability to work. So unemployment can have a significant effect on your case. However, being unemployed does not necessarily mean that you are not entitled to compensation for the wages which could have been earned, but for the injuries suffered.
How Receiving Unemployment Benefits Affects a Personal Injury Claim
If you are currently receiving unemployment benefits, this will likely reduce the value of your personal injury claim. You cannot argue that your injuries have caused immediate wage loss if you were not working at the time of the injury causing accident. However, if your injuries have affected your future earning potential, this can and should be taken into consideration when negotiating a settlement.
Examples of possible car accident injuries that might affect your ability to find future employment include:
- Traumatic brain injury (TBI)
- Back injury
- Spinal cord injury
- Nerve damage
- Visual impairment
- Hearing loss
- Internal organ damage
In the situation where you were not employed at the time of the collision, but you were looking to return to the workforce, your attorney will use expert testimony to establish how your injuries have limited your ability to find suitable work. Testimony will focus on the nature of your injuries as well as your past work history, education, experience, and the conditions of the local labor market.
In any personal injury claim involving unemployment, the length of time in which you have been out of work will play an important role. If you have only been unemployed for a short time, and that unemployment event was not of your choosing, such as a layoff, it will be easier to make the link your injuries to how they have negatively affected your future job prospects. However, if you have been unemployed for six months or longer, the defense may argue that other factors are playing a more important role in your inability to find suitable work. These challenges are to be evaluated in assessing the value of any personal injury claim.
Individuals Who Are Not in the Labor Force
If you were unemployed, but not receiving unemployment benefits or actively looking for work, you may be classified as being out of the labor force. In this case, you are not entitled to lost wages or compensation for lost earning potential because your injuries are not the reason for your lack of employment. For example, someone who has been retired and drawing a pension for the past decade would not have lost wages or lost future earning potential due to injuries. The settlement value would be based solely on medical expenses, pain and suffering and possibly other damages.
Special Concerns for Stay at Home Parents or Caregivers
If you are currently at a stay at home parent, your lost wages can be calculated based on the economic value of the household services you provide. This includes:
- Caring for young children
- Transporting children to and from school or other extracurricular activities
- Cooking meals
- Grocery shopping
- Cleaning and performing general household maintenance
- Paying bills and managing the family finances
If you have had to hire a housekeeper or nanny due to your injuries, this cost can be included in your damages. If your spouse has been forced to cut back on his work hours due to increased responsibilities at home, this can also be taken into account.
Similar considerations would apply if you are the full-time caretaker for an elderly parent or a disabled spouse.
Special Concerns for Self-Employed Individuals
If you were working as a freelancer, independent contractor, or sole proprietor at the time of your accident, your claim for lost wages is typically based on your previous earnings. However, if your business venture is relatively new, you will need to provide an alternative way to document lost earnings or loss of future earnings. This might include copies of invoices, contracts, correspondence, and bank statements. Expert testimony can also be used to assess the value of your business and lost future opportunities that have occurred due to your injuries.
How Inland Empire Law Group Can Help
Car accident injuries can result in a significant financial burden. When your injuries are caused by another party's negligence, you need an experienced personal injury attorney in your corner to advocate for your right to compensation. Calculating loss of earnings and its correlation to the injuries caused by the negligence of another, requires the skill of competent legal counsel.
The legal team at Inland Empire Law Group is dedicated to helping Southern California residents who have been injured due to the negligence of others receive the personal injury compensation they need to move forward with their lives. Contact us today to schedule a free, no-obligation consultation at our Rancho Cucamonga or Victorville offices.
What are medical liens?
Some doctors and hospitals will provide medical services on a lien basis. This means that they provide the medical services for an injured patient, yet they wait for payment until after a personal injury suit is settled. The debt remains an obligation of the patient, however, the medical providers asserts a lien against any financial recovery by the injured patient. Knowing the amount of the medical lien will be important to determine whether a settlement offer is adequate for your needs, including the payment of any medical liens.
About Medical Liens
Medical lien are contractual agreements between the doctor, the patient and the attorney, to have the medical provider provide medical service in advance of payment. The doctor, patient and lawyer all agree to provide the doctor payment from any settlement or judgment prior to the patient receiving any funds from a settlement. This allows the patient to get the necessary medical care without having to worry about paying for the services during the recovery process. Ultimately, if there is no recovery, the patient remains responsible for the payment of the charges. Other types of medical liens involve a health insurance provider seeking reimbursement for previously paid medical bills. The health insurer often has contractual language which requires the insured person to repay any financial advances made by the health insurance company. Finally, there are some liens imposed by law for emergency medical services rendered to an injury victim or liens to protect government healthcare payments.
Generally, there are two categories of liens, statutory liens and contractual liens. Statutory liens are imposed by law, while contractual liens are agreements between patients and doctors. Statutory liens are imposed to government and hospital interests.
Contractual liens are those which exist due to the terms of a specific contract between two parties. Most medical liens fall into this category based on one of the following:
- Health insurance: The majority of health insurance providers have clauses in their agreements that require you to repay any health insurance benefits later recovered from a third party in a personal injury settlement.
- Medical payments from your own auto insurance carrier: If your car insurance covers medical expenses related to your accident and another driver is later found to be at fault, you may have to repay some or all of the benefits after receiving a settlement.
- Agreements to treat: When someone is injured in a car accident and does not have medical insurance, providers will sometimes agree to treat on a lien basis. In this case, the doctor or care provider is agreeing to provide immediate treatment with no pay until a settlement is received.
Negotiating a Lien
Although it may seem like a lien would require you to pay back every dollar of medical care you received, this is not necessarily the case. Lien amounts can often be negotiated, depending upon the terms of the contract. In many cases, an experienced personal injury attorney can convince a lienholder to accept less than the full amount for repayment.
Negotiating a lien is often effective because the lienholder's financial interests are in line with the injured patient. If you go to trial and lose, the lienholder receives nothing. Therefore, they are often likely to accept less than what is fully owed as an incentive to resolve your personal injury claim out of court.
When your attorney negotiates a lien on your behalf, it is common to consider how the cost of attorney's fees factor into the settlement. Since personal injury cases are accepted on a contingency fee basis, your attorney receives no payment for his services until a settlement is received. Then, a percentage of the award is provided as reimbursement for representation. As such, lienholders are often willing to accept responsibility for a prorated share of the legal costs associated with your case.
Penalties for Ignoring the Law
You are legally required to report any personal injury claims that are pending to Medicare, Medi-Cal, or the health insurance which is paying for your medical treatment. Additionally, sophisticated computer software is used to flag records of injuries that could indicate an accident where someone else may be liable for payment—such as whiplash or broken bones. When this happens, you will receive a form asking for more information about who may be responsible for your injuries.
If you do not report your pending personal injury claim to the appropriate party, you risk jeopardizing your eligibility for future benefits. You could also be sued to recover the amount of the lien plus additional penalties.
How Inland Empire Law Group Can Help
In any personal injury case, the best way to protect your right to compensation for medical expenses, lost wages, and pain and suffering is to obtain experienced legal representation. Your attorney can assess the value of your case, gather evidence, negotiate with insurance companies, and help to resolve any outstanding liens to ensure that the final settlement you receive is adequate for your needs.
To learn more, call to schedule a free, no-obligation consultation with the dedicated attorneys at Inland Empire Law Group. Appointments are available at our Rancho Cucamonga and Victorville offices.
What is a vehicle data recorder?
Most newer cars are equipped with a vehicle data recorder, also known as an event data recorder or black box. The device monitors the vehicle and stores information about accidents and other information. This information can be used to uncover information about the cause of an auto accident. In most vehicles, the black box is found in the powertrain control module or the airbag control module.
Types of Information Preserved in the Vehicle Data Recorder
Black boxes have been used in vehicles since 1994, but did not become widespread until the mid-2000s. They only work when the vehicle is turned on, so they will not provide any information when there is no battery power.
Black boxes record a wide range of information that can be useful in the event of an accident.
- Steering angles
- Throttle position
- Force of impact
- Vehicle roll angle
- Use of ABS
- If electronic stability control was on or off
- How many crash events occurred
- Airbag deployment times
- Seatbelt use
- How far forward the driver's seat was positioned
- Size of seat occupants
There is no one standard type of black box. This means that the length of time data is preserved from a crash varies according to make and model. Most black boxes record around 20 seconds of data before a crash, but some can record as few as 2.5 seconds of information.
Data Access and Potential Privacy Concerns
You can find out if your vehicle has a black box by referring to your owner's manual. However, there is no easy way to turn off the black box or opt out of having your data recorded. This has led to many complaints from activists who believe that the use of black boxes constitutes an invasion of privacy and those who believe black box data may be vulnerable to hackers.
California law views black box data as the property of the vehicle owner. In most cases, it can only be accessed with your consent or a court order. However, it is also permissible to access data to perform vehicle safety research and to diagnose, service, or repair the vehicle. This information may also be accessed in a civil suit with a subpoena or through discovery.
There are products that can lock your vehicle's diagnostics port, such as AutoCYB, OBD Lock, and OBD Saver. This means that nobody can plug in the tools needed to access black box data without your permission. However, you are still required to turn over your data if presented with a court order or subpoena.
Using Black Box Data as Evidence in Your Personal Injury Claim
Black box data can be used in an auto accident personal injury claim to establish fault. The data could theoretically be used in any type of case, but is most useful when the accident involves a fatality, parties who don't remember the crash, or contradictory testimony from the drivers involved. Black box data can also be used to corroborate claims of certain types of injuries, such as whiplash from rapid acceleration and deceleration. In product liability cases, such as those involving the widely publicized defective GM ignition switches or the Toyota unintended acceleration crashes, black box data may offer proof of manufacturer negligence.
If you want to use black box data as evidence, you must act quickly. The devices will only keep data for about one month before they start to record over the information. Contact an experienced personal injury attorney to begin the process of accessing and interpreting the black box data from your own vehicle or the other driver's vehicle.
To protect the integrity of the data, your attorney will want to:
- Get a preservation of evidence order.
- Invite all parties to attend the download process.
- Prepare a download protocol and get the consent of all parties involved.
- Videotape the download process.
- Photograph key stages and readouts from the computer.
The legal team at Empire Law Group is dedicated to helping California residents receive personal injury compensation for medical expenses, lost wages, and pain and suffering following an auto accident. Contact us today to schedule a free, no-obligation initial consultation at either our Victorville or Rancho Cucamonga office.
Do I need to pay taxes on a vehicle accident settlement?
THE FOLLOWING INFORMATION IS NOT TAX ADVICE. ALL TAX DECISIONS SHOULD BE DECIDED WITH A TAX ADVISER WHO KNOW YOUR SPECIFIC CIRCUMSTANCES.
If you have been injured in a car accident caused by another driver's negligence and are seeking reimbursement of damages in a personal injury claim, it may surprise you to learn that a portion of your settlement may be taxable. Plan ahead to avoid being hit with an unexpected tax bill.
Tax Liability for Personal Injury Settlements
Your tax liability in a personal injury settlement depends on the type of damages you receive. Liability is briefly outlined in IRS Publication 4345, Settlements Liability.
Key points to remember include:
- Medical expenses: Funds used to pay for your medical expenses are not taxable. However, if the funds are provided to reimburse you for medical expenses that you previously deducted from your tax return, a portion of the settlement may be taxable.
- Property damage: Money intended to compensate for vehicle repairs, a totaled vehicle, or a rental car while your vehicle was in the shop is not taxable.
- Lost wages: Any portion of your settlement intended to compensate for lost wages is fully taxable, since you would have been liable for income taxes on your salary if you were working.
- Lost profits: If you are a self-employed business owner, compensation for lost profits is taxed as ordinary income and may be subject to self-employment tax.
- Pain and suffering: Compensation for physical and emotional distress related to the accident is not considered taxable.
- Punitive damages: Intended to punish the defendant and act as a deterrent against future bad behavior, punitive damages are rarely awarded in a personal injury suit. However, if you do receive this type of compensation, the funds are almost always taxable.
- Settlement interest: If you are receiving interest on a settlement, it is generally considered taxable as interest income.
- Attorney's fees: Personal injury cases are typically handled on a contingency fee basis, with an attorney receiving a portion of the settlement in exchange for his services. For tax purposes, however, you are considered to have received 100 percent of the settlement. This means you must include the portion of the settlement reserved for your attorney's fees in the taxable recovery.
Effect of Going to Trial on Tax Liability
In most cases, it does not matter whether you settle your personal injury claim out of court or go to trial. Money from a settlement at the claim stage or awarded through a judgement following a trial is subject to the same tax laws. When determining if you should go to trial, you should weigh the strength of your case against the added time and expense of litigation.
Strengths of Settling Your Case on Tax Liability
In many instances, the settlement documents can define the nature of the settlement payment to help minimize tax liability. The damages can be allocated to one type of damage or another to help reduce the possibility that the settlement will be taxable. These settlement arrangements can significantly alter the taxability of the payment.
Making Estimated Tax Payments
Personal injury settlements may trigger a liability for estimated tax payments if you are expected to owe $1,000 or more after subtracting credits and withholding. Review IRS Publication 505, Tax Withholding and Estimated Tax, and Form 1040-ES, Estimated Tax for Individuals, for details.
If you are required to make estimated tax payments and fail to do so, you may be charged a penalty. You can be charged a penalty for late payments, even if you end up being owed a refund when you file your annual return.
Consult an Accountant for Details
It is important to determine how tax liability will affect your personal injury settlement, since being responsible for unanticipated taxes could make an otherwise fair offer inadequate for your needs. However, a personal injury attorney is only equipped to offer general guidelines regarding what types of damages are taxable. For advice that is specific to your situation, you will need to consult an accountant for details.
Contact Inland Empire Law Group
Maximizing the size of your personal injury settlement requires careful documentation of damages, evidence to support claims of the defendant's negligence, and expert negotiation with the insurance company. To protect yourself, you need an experienced personal injury attorney in your corner.
Inland Empire Law Group's dedicated legal team is committed to helping California residents who have been injured due to the negligence of others receive the personal injury compensation they need to move forward with their lives. Call today to schedule a free, no-obligation consultation at our Rancho Cucamonga or Victorville offices.
How are passengers compensated for their car accident injuries?
As an injured passenger, unlike a driver, it is unlikely anyone will attempt to assess any liability on the passenger for the collision. The passenger generally looks to determine which driver caused the collision or if there were multiple causes for the collision. This determination is extremely important because in some instances a passenger will be excluded from coverage by their driver’s insurance carrier.
There are some important things to remember when seeking compensation for your accident-related expenses.
Types of Damages Available in a Personal Injury Case
You can seek compensation for the following accident-related expenses:
- Medical care, including emergency room visits, surgery, hospital stays, follow-up care, and necessary medication.
- Anticipated future medical needs, if you have suffered disabling injuries.
- Lost wages for the time you were unable to work due to your injuries.
- Loss of future earning potential, if you have suffered disabling injuries.
- Pain and suffering, including both the physical pain and the emotional trauma of the accident.
Figuring Out Who Is Liable for Your Injuries
The first step in any personal injury case is figuring out who is financially responsible for your expenses. When the police come to investigate an accident, if there is sufficient evidence to make a conclusion, they will typically assign fault to one or more parties. However, a police officer’s investigation may be wrong or incomplete. This means that the passenger needs to investigate the facts more completely after the accident is over. This investigation may result in finding fault with one or more individuals or entities:
- The driver of the car in which the passenger was riding.
- The driver of the other vehicle or vehicles.
- Multiple drivers, in accordance with their percentage of fault.
- The vehicle owner, if the driver at fault was operating a vehicle belonging to someone else.
- Employers of one or more drivers
- Government entities for defective or avoidably dangerous road conditions
If you attempt to collect damages from more than one party, keep in mind the total amount of damages is generally allocated between the parties by their respective fault. In California, the law allows an injured party to collect all their out of pocket damages (called special damages) from any one party that is at all responsible for the collision. For the monetary damages related to pain and suffering, the laws allocates this damage strictly by the percentage of fault of each party. The objective is to make the injured party as whole as possible, not to provide a financial windfall.
When you have immediate medical bills that aren't covered by your health insurance, you may wish to use the MedPay coverage from your own auto insurance policy or the policy of the driver whose vehicle you were riding in. Approving claims made in this way is much quicker since fault does not play a role in the process. However, any funds you receive will often need to be repaid if you later receive a settlement from the at-fault driver.
Special Considerations for Family Accidents
If your accident occurred when you were riding with a family member, you may be wondering if you are eligible to make a claim covered by your relative's insurance. This depends on the specific terms of the policy, as well as where each occupant of the vehicle lives.
When an at-fault driver and passenger live in separate houses, the passenger is eligible to recover damages resulting from an accident. This means that you'd likely be eligible for coverage if you were in an accident while visiting your aunt or accompanying your grandmother to a doctor's appointment.
Unfortunately, many insurance policies have an exclusion that prevents liability coverage for passengers if the vehicle occupants all live in the same household. This means that accidents involving injured children are not covered when a parent is driving and causes an accident. Make sure you consult with an attorney to explore all the nuances in possible insurance coverage.
The Dangers of Trying to Avoid an Insurance Claim
If you were riding in a vehicle with a friend, you may feel awkward trying to bring an injury claim to recover accident-related damages. Remember, your claim will involve the insurance company more than your friend. Also, be careful that you do not accept an offer to pay for your out of pocket expenses without consulting with an attorney. Some insurance companies try to get a quick settlement to prevent having to pay for all the damages caused by their insured driver.
A Secret Many Passengers Do Not Know
Even when you are occupying someone’s vehicle, a passenger may still be covered by their own uninsured or underinsured motorist coverage. For example, if the passenger has an uninsured motorist policy that is larger than the insurance available for the at-fault driver(s), then that policy may be available to help pay for the damages. Also, if the car in which the passenger was riding has uninsured motorist coverage, that coverage may also be available to the passenger under the right circumstances.
Getting Legal Help
As an injured passenger, your claim is considered a third-party claim. This means you are filing under an insurance policy that's not your own. To protect your rights throughout this process, it is recommended that you retain legal representation. Your attorney can gather evidence, line up the relevant expert testimony, and negotiate the highest possible settlement on your behalf. The attorney can also evaluate the possible source of all available insurance coverage.
Many people worry about the cost of hiring an attorney when they are injured and unable to work. However, money should be no object when it comes to advocating for your needs in a car accident personal injury case. Personal injury lawyers work on a contingency fee basis, which means you pay no upfront fee. Instead, your attorney will accept a percentage of the final settlement.
To learn more, call to schedule a free, no-obligation consultation with the dedicated attorneys at Inland Empire Law Group. Appointments are available at our Rancho Cucamonga and Victorville offices.
How can an attorney help me resolve my car accident case?
If you recently suffered injuries in a car accident caused by another driver's negligence, you may be wondering if it is really necessary to hire an attorney to settle your personal injury claim. Although it may seem tempting to try to resolve the claim on your own, the services and experience an attorney provides may be worth the expense incurred for the attorney’s services.
Injury Attorneys Work on a Contingency Basis
Many injury victims believe that can’t afford an attorney so they will have to deal with the insurance companies on their own. You can afford a personal injury attorney! Most excellent personal injury attorneys do not require you to pay them upfront. In fact, these attorneys, including the Inland Empire Law Group, work on a contingency fee basis. This means that the attorney gets paid out of the settlement or judgment the secure for you as the accident victim. If there is no recovery, there is no fee for the services provided. Don’t be afraid to speak with an attorney to see what he or she can do for you.
An Attorney Allows You to Fully Focus on Your Recovery
Personal injury cases can be time-consuming to prepare and present to the insurance company or the courts. If you are recovering from broken bones, burns, or other serious injuries, your top priority should be your health. When you hire an attorney to handle your case, he or she will oversee all communication with the insurance company. This leaves you free to focus on meeting your immediate medical needs.
An Attorney Gathers Evidence
The success of your personal injury claim will depend upon the quality of the evidence you can submit to support your request for damages. When you hire an attorney to represent your interests, he or she will gather many different types of evidence on your behalf. This may include:
- Police reports
- Photographs of the accident scene
- Witness testimony
- Medical bills
- Medical records
- Documentation of lost wages
If you are trying to settle a case on your own, you can easily to overlook crucial evidence that supports your request for damages.
An Attorney Helps Find Relevant Experts
Expert testimony can be used as valuable evidence in many types of personal injury cases. In some cases, experts are absolutely necessary to prove your case. Different kinds of experts an attorney may be able to locate for your case include:
- Accident reconstruction experts
- Human factors experts
- Medical experts
- Life care planning experts
- Economic loss experts
- Vocational rehabilitation experts
There are strict criteria used to determine what makes an expert a credible personal injury witness. An experienced attorney has a network of experts known for their reputation in court.
An Attorney Can Help Avoid Common Personal Injury Claim Mistakes
Most people realize that lying to an insurance company is not a good idea, but an attorney can help you strengthen your case by pointing out other mistakes you may not have thought of. For example:
- Speculating about the cause of the accident on your social media accounts
- Failing to keep all of your recommended medical appointments
- Being seen in a public place engaged in activity that goes against the doctor's orders, such as lifting heavy weights or not using your crutches
- Failing to document all related accident expenses, including things like transportation to medical appointments
- Neglecting to plan for reimbursement of Medicare, Medicaid, or your own private health insurance after you receive your settlement
An Attorney Negotiates on Your Behalf
Never forget that insurance companies exist to make a profit. They are not necessarily concerned with whether you receive a settlement that adequately compensates you for your injuries. In fact, car accident victims without legal representation are likely to receive offers for significantly smaller than what their case is truly worth.
Although an attorney's expert negotiating skills are invaluable in any car accident case, they become particularly important if you are partially at fault for the accident. California law allows you to collect damages if you are partially at fault for the accident, although your compensation will be reduced by your assigned percentage of fault. However, since there is no set formula used to determine the percentage of fault, a skilled attorney can often negotiate a lower fault percentage and thus increase your eligibility for compensation.
Hiring the right lawyer to handle your case will increase the likelihood your settlement will be much better than handling the claim on your own. Making sure you hire a highly skilled personal injury lawyer may also help you in recovering greater compensation than a less skilled attorney. Each case is unique, but generally, hiring the right attorney makes a major difference.
Contact Inland Empire Law Group
Inland Empire Law Group's dedicated legal team is committed to helping California residents who have been injured due to the negligence of others receive the personal injury compensation they need to move forward with their lives. You will find a team of very skilled legal professionals working to maximize an injured person’s recovery. Call today to schedule a free, no-obligation consultation. Appointments are available at our Rancho Cucamonga or Victorville offices.
Why do airbags sometimes fail to deploy in a crash?
After a car accident, determining liability for your injuries can help you decide how to best alleviate the financial burden associated with the incident. If your airbags did not deploy in the crash, this could potentially mean that you have the basis for a valid product liability claim as well as a personal injury case.
Should the Airbag Have Deployed?
It is a common misconception that airbags should deploy in every accident. The force of an airbag can cause traumatic brain injuries, loss of hearing, blindness, burns, or broken facial bones if it deploys when it is unnecessary. Therefore, airbags are intended to only deploy in serious crashes.
If you've been in an accident and you are trying to determine if your airbags should have deployed, consider the following:
- At the time of impact, you need to be traveling above 12-18 miles per hour for the airbag to deploy.
- Passenger airbags will not inflate if the passenger is a child since they are intended for adult use.
- Frontal airbags should deploy in head-on or near frontal crashes.
- Side and side curtain airbags only deploy when you have been stuck from the side.
- An angled front impact might not set off any airbags.
Airbags are not intended as a substitute for seat belt use. To protect yourself, you should always buckle up before you start to drive.
What Causes Airbag Failure?
Airbags are monitored and controlled by computer network sensors that calculate the location and severity of the impact. Based on pre-programmed criteria, the sensors determine if the airbag should deploy. When the sensors fail, the airbag will not work.
In addition to faulty sensors, airbag problems can sometimes be traced to faulty wiring and design or manufacturing defects. Unfortunately, these issues are often undetectable until an accident has occurred.
Should I Be Concerned About the Takata Recall?
Over the years, there have been multiple recalls associated with defective airbags. However, the largest and most recent recall involves vehicles from 19 different automakers made from 2002 to 2015. These vehicles have airbags made by Takata, which have been linked to 18 deaths and hundreds of injuries throughout the United States.
The Takata airbags have defective inflators, which can ignite with explosive force. If the inflator ruptures, it can send metal shards flying throughout the vehicle. The risk appears highest in areas with both high-humidity and high-temperature cycling, but incidents have been reported in all climates. As the result of this defect, Takata has been named in multiple product liability lawsuits.
Efforts have been made to notify vehicle owners if their cars are included in the Takata airbag recall, but drivers who move frequently or purchased used vehicles from a private party can prove difficult to contact. If you do not know what brand of airbags are installed in your vehicle, you can contact the car's manufacturer or take it to a nearby dealership for assistance.
How Does a Faulty Airbag Affect My Eligibility for Compensation?
Normally, when you are involved in a car accident, the at-fault driver is financially responsible for damages you have suffered. The equation becomes a bit more complicated if there is evidence to suggest your vehicle had faulty airbags.
When the airbags failed to deploy and you suffered injuries that would likely have been prevented if the airbags were working correctly, the airbag manufacturer may be responsible for those additional injuries which could otherwise have been avoided. If the accident is one that shouldn't have triggered the airbags, there is no possible product liability claim.
Due to the expense in bringing a product liability claim against a manufacturer of an airbag, the additional injuries must be substantial and valued at an amount greater than the available insurance or assets of the at fault driver.
Regardless of who is responsible, your compensation can include the following types of damages:
- Medical expenses, including emergency care, follow-up care, and any anticipated future medical needs for an accident-related disability
- Loss of wages while you were unable to work due to your injuries and any applicable loss of future earning potential due to an accident-related disability.
- Aid and assistance with daily living. When one is severely injured they may need in home care, living assistance or yard care.
- Pain and suffering, including both the physical pain and emotional trauma from the accident.
Meeting with an experienced personal injury attorney can help you determine how to best proceed with your case. Call today at (909) 481-0100 or toll free at (888) MY-IELAW to schedule a free, no-obligation consultation with the dedicated legal team at the Inland Empire Law Group. Appointments are available at either our Rancho Cucamonga or Victorville offices.
Can I recover damages if I was not wearing a seat belt at the time of the accident?
California's seat belt law requires both drivers and passengers to buckle up when a vehicle is in motion. Even if you violate this law, and you are involved in an auto accident while not wearing a seat belt, you still may be entitled to compensation for some of your injuries from the at-fault party.
California's Seat Belt Law
Under California law, the only people who do not have to wear seat belts are those with medical disabilities that prevent seat belt use or people engaging in occupations that make frequent stops, such as USPS, newspaper delivery persons, or waste collection personnel. Children who are too small to use a standard vehicle seat belt must be restrained in an appropriate car seat or booster seat. Also, if you occupy a vehicle that does not have a seatbelt provided, such as some public transportation, you are not required to wear a seatbelt.
If you violate California's seat belt law, you can be ticketed for this violation. Some tickets can be for a minimum fine of $162 for an adult violation, or $465 for a child under the age of 16. Penalties are assessed against the parents of the minor, or the driver if the parents are not in the car.
How a Seat Belt Violation Affects Your Personal Injury Claim
If you are involved in an accident and were not wearing your seatbelt at the time, you may receive a ticket from the law enforcement officer at the scene for failing to buckle up. However, the ticket does not prevent you from filing a personal injury claim.
California is a comparative fault state but has specifically stated that failing to wear a seat belt does not bar you from seeking a claim for accident-related expenses. The way the courts address this violation for purposes of civil responsibility of liability is that the Courts will look to see what injuries could have been avoided if a seatbelt was worn and those injuries can be excluded for recovery. All other injuries are available to pursue. The insurance company for the at-fault driver will try to argue that nearly all the injuries are related to your lack of seat belt use. If they are successful, then they reduce the amount they are obligated to pay for the injuries.
If your case goes to trial, the jury is instructed to consider how the failure to wear a seat belt affected the injuries. If a negligent driver tries to avoid paying accident-related expenses by using a seat belt defense, he will need to establish two key elements:
- Normal or ordinary care would involve using the available seat belt
- Wearing a seat belt would have prevented the injuries or made them less serious
In this scenario, expert testimony from biomechanical and medical experts will become crucial. Your own attorney will need to locate experts who can provide testimony on your behalf to establish that your injuries are unrelated or only minimally related to your lack of seat belt use.
Protecting Your Right to Compensation
California has widely been considered a leader in seat belt use, with over 97 percent of drivers and passengers buckling up to protect themselves on the state's busy roads and highways. While it is always smart to be properly restrained before you start out on the road, there's no reason you should bear the brunt of all accident-related expenses due to one simple mistake.
If you are determined to be partially responsible for the accident or for your injuries from not wearing your seatbelt, your settlement will be reduced by your assigned percentage of fault. For example, if you were determined to be 20 percent at fault for the accident and would otherwise be eligible for a $100,000 settlement, you would receive $80,000 or 80 percent of the original settlement total.
After a California car accident, you have up to two years to file a personal injury claim. The best way to protect your right to a fair settlement is to have an experienced attorney advocating for your interests throughout the process.
Inland Empire Law Group's legal team is committed to assisting California residents to obtain the personal injury compensation they need to move forward with their lives following a car accident. Call us today to schedule a free, no-obligation consultation. Appointments are available at either our Rancho Cucamonga or Victorville offices.
What happens if I am injured in an accident caused by an excluded driver?
Excluded drivers are not covered by an auto insurance policy, even if they have permission to use the vehicle. If an excluded driver causes an accident, the accident is treated as if the driver had no insurance at all. This can create problems if you have been injured in an accident caused by an excluded driver and need to protect your right to compensation.
Reasons Why Drivers Are Excluded and You May Need a Car Accident Attorney
The most common reason why people opt to exclude drivers is to save money on their car insurance. California law requires good driver discounts of 20 percent or more for drivers with no accidents during the past three years. (Cal Ins Code §1861.02) This law has been on the books since 1988 and also requires that drivers who do not qualify for the discount due to a household member's poor driving record be given the opportunity to exclude the problem driver in exchange for lower rates. If the driver is excluded, that driver should not be behind the wheel of a car for which they are an excluded driver.
In addition to the money-saving aspect of excluding specific drivers, some people opt to take advantage of the excluded driver option to prevent a policy from being canceled altogether. This scenario is most likely when the problematic driver has a recent conviction for driving under the influence (DUI) or a related offense that would put a driver in a "high risk" category. Also, some parents or guardians opt to exclude teen drivers if they do not intend to allow driving privileges.
Insurance Coverage After an Accident in Riverside County, CA
Permissive use is a concept that allows a vehicle owner to maintain coverage when a friend or family member borrows the vehicle for a short time. For example, permissive use would cover an accident caused by a friend who is allowed to use the car to drive the store to pick up a gallon of milk or to run errands while a vehicle is in the shop. Permissive use applies in most situations where the driver has a valid license and is not using the vehicle on a regular basis or for a commercial purpose.
Excluded drivers do not qualify under permissive use because the auto insurer has been specifically told they are not allowed to drive the vehicle. When an excluded driver has an accident, the claim will be denied automatically. Even if there is a legitimate medical emergency that requires the excluded driver to operate the vehicle to take the policyholder to the hospital, there won't be any insurance coverage available to cover liability and property damage. Medical coverage may still be available, but this varies according to the terms of the specific policy.
Collecting Damages From a California Accident Involving an Excluded Driver
If you are in an accident where an excluded driver is at fault, your Uninsured Motorist Coverage (UMC) /Underinsured Motorist Coverage (UIM) can be used to help pay for damages. California law requires all auto insurance policies sold within the state to offer this coverage unless you waive your rights in writing to UMC/UIM coverage.
In addition to collecting from your own insurance, you can attempt to collect from the driver and/or vehicle owner's personal assets, however, direct recovery may be very challenging. If you are seeking recovery from your uninsured motorist coverage or the responsible driver, you can seek compensation for:
- The cost of fixing your vehicle
- Medical expenses, including emergency care, diagnostic tests, follow-up visits, and physical therapy
- Ongoing medical needs, if the accident results in a permanent disability
- Lost wages from the time you were unable to work due to your injuries
- Loss of future earning potential, if the accident has affected your ability to earn an income
- Pain and suffering, including both the physical pain and emotional stress associated with the accident
Collecting damages from the liable party's personal assets can be challenging since it is not always readily apparent what assets are available for a settlement. In cases involving accidents caused by excluded drivers, the assistance of an experienced personal injury attorney can prove invaluable.
If you have been injured in a car accident in California by a private individual or company, you have two years to file a personal injury claim for damages. If you been injured by a government entity, you need to submit a government claim within six months from the date of the collision. Inland Empire Law Group's attorneys have extensive experience assisting California residents in receiving compensation for car accident injuries. Call us today to schedule a free, no-obligation consultation at either our Rancho Cucamonga or Victorville offices at (909) 481-0100.
Will my car insurance cover drivers who are not listed on the policy?
Although your car insurance will often cover drivers who are not listed on the policy if they had permission to borrow your vehicle, there are some important exceptions to this rule of which you should be aware. If you lend your car to someone who is not covered, both you and the borrower of the car can be held personally liable for all damages caused by the borrower.
Coverage for Other Members of the Household
Many policies require members of the household who are over driving age to be listed by name, while others offer more general coverage to all household members. However, household members are typically defined as people who live in the house and are related through marriage, blood, or adoption. If you are living with a roommate or partner, and you let them use your car, to assure they are covered by your insurance policy, you will need make sure they are listed by name on the policy. If you do not, you may place yourself at risk that your vehicle is not insured while a roommate or partner are driving your vehicle.
Coverage Under the Concept of Permissive Use
When you allow someone who is not a member of your household, or who does not live with you, to borrow your vehicle, the concept of permissive use may provide coverage in the event of an accident. This coverage is not necessarily the same level as you would have for yourself when you are driving. Many insurers apply a higher deductible or lower coverage payment limits to permissive user accidents. You need to read your policy carefully to make sure you have the right coverage for permissive user accidents.
Permissive use does not apply to people who drive your car on a regular basis or someone who will be borrowing your vehicle for an extended period of time. This type of coverage is intended for short, infrequent trips only. For example, a relative comes to visit and you are going to let your relative use your car for the month long visit. You should have his or her name included on the insurance policy. However, if that same relative is only staying for a week or a few days and is going to use the car for running an errand or two while staying with you, there is no need to include them on the policy, they would most likely be covered. You should check with your insurance agent or your policy to make sure coverage is provided.
Business use on a non-commercial policy is generally not covered under permissive use. This is true even if you are just letting a friend borrow your vehicle for a day to attend client meetings or make deliveries. Any type of commercial activity requires specific business insurance coverage.
All drivers who qualify for permissive use coverage must have a valid driver's license. Allowing someone with no license, a suspended license, or a revoked license to drive your car will invalidate your coverage. Check that the borrower has a current license before letting him or her use your car.
Keep in mind that some insurance policies exclude permissive use altogether. Exclusion against permissive use are often found in low cost insurance policies. If you have any doubts about your coverage, you should contact your insurance agent for details.
Excluded drivers are people who are prohibited by name from driving a vehicle. This is most often because they have a record of unsafe driving behavior, such as a DUI conviction, reckless driving charge, they are a high risk driver, or have caused multiple accidents in a short timeframe.
Not all policies allow excluded drivers, but some will let you exclude a driver to save money or prevent the policy from being canceled entirely. If you exclude a driver by name, permissive use no longer applies. If you allow the excluded driver to drive your car, or you negligently allow the driver access to your vehicle, you will have no insurance coverage in the event of an accident. In this case, you and the driver will be held personally liable for damages.
Liability for Accident-Related Damages
When a car is driven by someone other than the registered owner, the owner's policy is the first source of coverage. If the owner's policy does not apply, the driver's auto insurance may afford coverage. However, not all policies will pay for damage caused to borrowed vehicles.
If no insurance coverage is available, the owner can be held personally liable for the damages, unless someone else is at least partially responsible for the accident. In this case, a personal injury claim would be reduced by another driver's percentage of fault. Claims can include compensation for medical care, lost wages or loss of future earning capacity, and pain and suffering. Under some circumstances the financial liability of an owner of a vehicle used with permission can be limited by law. California Vehicle Code §17151.
An injured person has two years to file a personal injury claim for damages related to an auto accident. Contacting an attorney is strongly recommended, due to the complex liability issues involved in an accident where someone other than the policyholder was driving.
The dedicated legal team at Inland Empire Law Group has extensive experience assisting California residents in receiving the personal injury compensation they need to move forward with their lives following a car collision. Call us today to schedule a free, no-obligation consultation at either our Rancho Cucamonga and Victorville offices. (909) 481-0100 or (760) 243-9100. Call now to preserve and enforce your rights.
Should I wait until I’ve reached Maximum Medical Improvement before I settle my case?
When it comes to settling your personal injury claim, patience is a virtue. Insurance adjusters will commonly give a low settlement offer shortly after an injury. They know that many people will be anxious to have the matter resolved and not get attorneys involved. However, waiting until you know the real nature and extent of your injuries, and even waiting to reach the point where you reach Maximum Medical Improvement (MMI), your settlement results will generally be better than accepting a quick settlement.
About Maximum Medical Improvement (MMI)
Reaching MMI means you've recovered from your injuries as fully as doctors expect you will be able to recover. For minor injuries, this is generally full recovery so you have no remaining problems with your injuries. For more serious injuries, your MMI may be a point at which any existing pain or physical limitation have stabilized, but the injuries are expected to be permanent. Doctors can make an educated assumption as to what your ongoing care will involve, but they may not be able to forecast many years into the future.
Your doctor will decide when you've reached MMI based on physical examinations and the results of any diagnostic tests applicable to your injuries. In some cases, a second opinion might be needed to decide if you've recovered as fully as can be expected.
The Importance of Waiting to Reach MMI Before Settling Your Claim
Once you've accepted a personal injury settlement, you're releasing the other party from any future liability for your injuries. You can't go back and ask for more money if your injuries turn out to be more serious than you thought. This can make settling before you reach MMI a risky gamble. In some situations, settling early can be your best alternative. Utilizing the skill of a good personal injury lawyer to judge the best time to settle is key to maximizing your best recovery.
Although doctors can provide a general timeframe for your physical and emotional recovery from specific injuries, everyone's case is different. What first looks like a simple problem may turn out to be something more serious. For example, a small percentage of people who suffer a concussions experience what's known as post-concussion syndrome and remain bothered by headaches, dizziness, and mild cognitive deficits months or years after the initial injury. Another example would be broken bones that don't heal properly and require repair or surgery.
Handling Expenses While You Wait for a Settlement
Watching unpaid bills accumulate can be very stressful, but you have several different options for handling your finances while you wait for a settlement.
- Utilize your own health insurance to pay your medical bills until you recover from the opposing party
- Have your attorney negotiate a lien agreement with the medical care providers to wait for payment until you receive a settlement
- Have your attorney negotiate reductions or payment plans on the amount owed on your medical bills, then pay cash from your personal savings until you get paid back when you finally reach a settlement
- Borrow money from friends or family to be repaid from settlement proceeds
- Temporary cut out unnecessary expenses such as restaurant meals or buying new clothes
- Sell unwanted items to generate extra income
While your claim is pending, you may be contacted by companies offering to loan you money now against a settlement you will receive in the future. This is known as a personal injury settlement loan, advance settlement funding, or lawsuit advance loan. When the loan is approved, the financing company will place a lien on the proceeds of the settlement. There is no credit check involved and only cases with a high likelihood of reaching a settlement will qualify. However, the interest rate and fees on this type of loan can often be more than what you'd pay with a credit card or personal loan. This type of loan is also not federally regulated, which means it's your responsibility to investigate the trustworthiness of the lender thoroughly before agreeing to the terms.
Seeking Legal Representation
Personal injury law is complex and insurance adjusters are often counting on you being anxious to settle your claim. The insurance adjusters are also hoping you will not go to an attorney who can assist you in protecting your rights of recovery. Having an experienced attorney to advocate for your needs is the best way to maximize the size of your settlement.
Personal injury attorneys accept cases on a contingency basis, which means legal fees are paid as a percentage of the settlement. There is no upfront payment required, so you're not pressured to settle early in order to reduce the fee for representation.
Inland Empire Law Group's attorneys are committed to helping California residents who've been injured due to the negligence of others resolve their personal injury claims or to fight for them in court. Call today at (888) 694-3529 to schedule a consultation at our Victorville or Rancho Cucamonga offices.
Should I talk to my insurance company about my accident?
You have a legal obligation to cooperate with your car insurance claims representative regarding the facts of your collision. However, it's vital that you understand the scope of what information you are required to provide so you don't inadvertently damage your case.
Filing Your Claim
Your first priority after an auto accident should be seeking medical attention for any serious or life-threatening injuries. After the immediate medical needs of all involved have been addressed, you will want to provide information to law enforcement officers on the scene regarding the facts of the collision and how it occured. When dealing with law enforcement, make sure you are honest and that you describe how the collision occurred to the best extent possible. If you can, take pictures of the accident scene and secure contact information from any witnesses or from the other driver.
Although you should file your claim promptly, it's not necessary to contact your insurance company the same day as your accident or while at the scene of the accident. It's fine to wait until you return home or until you've had a chance to rest and recover from the initial shock of the collision.
If you're worried about the cost of the accident and how it will affect your future insurance premiums, you might be tempted to forgo making a report. However, you must report all accidents—even if you believe the other driver is 100 percent at fault. The terms of your policy most likely require full disclosure of every accident. It's also possible that you may be found partially at fault for the accident and you rinsurance company may need to defend you. Additionally, it is posbbile the other driver has insufficient insurance coverage to provide reimbursement for your damages and you may need to make an underinsured motorist claim against your own insurance company. If you have not been cooperative, you may compromise your own bility to protect yourself from claims or your right of recovery.
Your Insurance Company’s Rights
Policy terms vary, but most auto insurance companies require the following after an accident has been reported:
- You must provide a basic factual account of the accident. This includes a general statement of what happened before and immediatly after the accident, identity of those involved and witness names to the collision. Your insurance comapny may ask about contact information for the doctors who are treating your injuries, but this information should be withheld until you speak with an attorney.
- You must allow access to your medical and work records. Your insurance agent will likely ask you to sign a form authorizing the release of these records so your losses can be formally verified before a settlement offer is made. I do not recommend that you provide the insurance company with an authorization to secure your medical records without first consulting an attorney. Those are your private records and you control the distribution of those records. However, at the time you are prepared to resolve your claim you will then be required to provide the medical record and billing information required to justify settlement of your claim.
- You must allow the insurance company's representative to inspect your vehicle. Taking pictures of your vehicle damage at the scene of the accident is helpful, but the insurance company is entitled to request an in-person inspection before repairs are made.
The concept of subrogation rights may also factor into your car accident settlement. Subrogation is intended to prevent double recovery, which means you're not allowed to profit twice from a car accident settlement.
Subrogation refers to the right of a third party to collect reimbursement for any payments they've already made on your behalf if another party is found liable for the incident and pays for those same losses. In a car accident case, this can happen when you use your own car insurance to pay for repairs to your car or your own health insurance to pay medical expenses. If you're covered by government assistance benefits such as Medicaid or Medicare, subrogation will apply as well. The government requires a person using public healthcare benefits to repay that which has been expended by the government and then recovered by the injured party from another insurance company.
Hiring an Attorney
Unfortunately, your insurance company may not have your best interests in mind as they're working to process your claim. To protect yourself, it's best to obtain professional legal representation.
A skilled personal injury attorney can guide you through every step of the settlement process. Your attorney can:
- Review any release you sign to make sure you're not giving permission to the insurance company to look at irrelevant information such as your credit history, unrelated medical historical medical care or any medical condition not related to your current injuries.
- Participate with you at any statement you may provide to make sure you're not providing information that could be misinterpreted or used against you.
- If you're determined to be partially at fault for the accident, the attorney can negotiate on your behalf to lower your percentage of fault. Since there is no set formula for determining fault following an auto accident, a skilled attorney can increase your eligibility for compensation by showing that you are either not liable, or less liable for the collision than what the opposing side wants to attribute to you.
- Locate experts to testify on your behalf and obtain evidence to support your case.
- Make settlement demands and review settlement offers to make sure they adequately compensate you for your damages.
- If appropriate settlements are not received, the attorney will prepare the case for trial and then try the matter to secure a proper verdict for all the medical expenses, loss of earnings, other out of pocket losses as well as the pain and suffering from the injuries.
The legal team at Inland Empire Law Group is committed to helping California residents who have been injured in auto, motorcycle and truck accidents receive the compensation they need to move forward with their lives. Please call to schedule a free, no-obligation case review at either our Victorville or Rancho Cucamonga locations. You can reach us at 909-481-0100 for the main Rancho Cucamonga office, 760-243-9100 for Victorville cases or (888) MY IE LAW for cases anywhere in Southern California.
MIST cases are special types of personal injury claims involving soft tissue injuries. Learn how this affects your right to compensation.
Personal injury cases involving primarily minor property damage and soft tissue injuries are sometimes called MIST cases by those in the insurance industry. The term MIST is short for “Minor Impact Soft Tissue.” If your case is considered a MIST case, there are a few different ways in which this will affect your right to compensation.
Understanding MIST Cases
Typically, a MIST case is a car accident occurring at relatively low speeds and resulting in less than $1,500 in property damage to the vehicles involved. Injuries are most often contusions, sprains, strains, and/or whiplash.
- Contusions – When capillaries under the skin are ruptured, an accident victim ends up with discolored and painful bruises. Most contusions heal over time with no lasting damage. Some MIST cases can result still result in painful and long term damage to the muscle fibers and connective tissue under the skin.
- Sprains – After a car accident, ligaments in the joints can stretch or tear. These sprains most often occur in the arm, wrist, knee, or ankle, resulting in pain and swelling. A brace or splint is typically used to immobilize the injured area while it heals, although victims are also advised to rest the area as much as possible by avoiding overly vigorous physical activities. Physical therapy, medication or corrective surgery may be needed to resolve these injuries.
- Strains – Injuries involving stretched or torn muscles or tendons are referred to as strains. These injuries are treated in a manner similar to a sprain, with braces and rest being the most common approach. However, the neck, mid-back and back are the most common location for a strain in a MIST case. Chiropractic care, physical therapy, medication, imaging studies, and home health care are often used to address these injuries. In some limited circumstances, surgery or special pain management care may be required.
- Whiplash – When your neck jerks back and forth due to the impact of the car accident, whiplash can result. Also known as a cervical strain or sprain, whiplash gets its name because the motion causing the injury is similar to how you would crack a whip. Victims with whiplash may suffer from sleep disturbances, headaches, memory problems, chronic neck or back pain, and dizziness.
Compensation for Car Accident MIST Cases
The insurance company often discounts soft tissue injuries as not as serious as injuries such as broken bones. However, in many instances the soft tissue injuries are much more difficult to treat and cure than a broken bone that is set and heals over six to eight weeks. Soft tissue injuries can last a life time and only get worse with age. Just because you were involved a collision which did not result in significant property damage, it does not mean you are not entitled to compensation. If you were legitimately hurt, then you have a right to make a claim for damages. Whether the insurance company will agree with you or not is the fight your lawyer will have to engage in to help secure compensation for you. A MIST case can involve the following types of damages:
- Medical expenses, such as an emergency room visit and any necessary follow up appointments.
- Loss of wages, if you were unable to work while recovering from your injuries.
- Pain and suffering, to reimburse you for the physical pain as well as the emotional trauma of your injuries.
- Permanent injuries or disabilities, and their impact on your life.
Medical expenses and lost wages are called economic damages, since an exact dollar value can be calculated based on your hospital bills and pay stubs. Pain and suffering is a category of non-economic damages, since it has no readily available dollar value. Insurance companies will often try to deny damages in MIST cases because they claim that harm could not have occurred to the occupants of the vehicle when there is little property damage. However, there are many studies that have debunked this argument, but the insurance companies continue to deny the existence of injuries from these collisions.
The Challenge of Proving Your Case
The primary challenge associated with a MIST case is that victims are often accused of faking or exaggerating their injuries. Here are some tips to help your attorney build the strongest possible case:
- Follow your doctor's treatment recommendations exactly and keep all of your appointments.
- Do not return to work until you've been cleared by your doctor.
- Get a doctor’s note excusing your absence from work.
- Keep a journal detailing your ongoing symptoms and efforts to get better.
- Take photos of your injuries as they heal.
- Do not talk to anyone other than your attorney about your case.
Letting Inland Empire Law Group Protect Your Rights
Insurance companies are often eager to save money on MIST cases by offering lowball settlements, claiming a victim is partially responsible for his injuries, or accusing the victim of exaggerating the seriousness of his condition. Having someone to advocate for your interests throughout the settlement process ensures that you'll be treated fairly and have your case resolved as soon as possible. If a pre-trial resolution is not possible there are some lower cost alternatives we can utilize to help take case to trial.
The Inland Empire Law Group is dedicated to helping California residents who've been injured in accidents caused by negligent drivers receive the compensation they need to move forward with their lives. We cannot take all MIST cases, nor can we take all large cases. We will evaluate your case to see how we can best serve you, an injured victim from a negligent driver. Please call today to schedule a free, no-obligation case review at our Victorville or Rancho Cucamonga locations.
Can you still collect compensation for a dog bite if you were trespassing?
California law specifically allows trespass as a defense against liability for a dog bite attack. This means you may not be able to collect compensation for your injuries if you were truly trespassing at the time the dog bit you. If you're found to be trespassing, your options for compensation for a dog bit is nearly non-existent.
Defining Trespassing in Dog Bite Cases
Trespassing is a legal term used to refer to entering private property without the express or implied permission of the owner or person who lives there. In regards to a dog bite attack, a victim is considered to be lawfully on a property if he has express or implied permission to be there. Merely entering the front yard to knock on a door is not trespassing and would not lead to a trespassing defense.
Examples of situations that would be eligible for dog bite compensation include:
- The victim was bitten while attending a backyard barbecue hosted by the owner.
- The victim was bitten while babysitting the owner's children.
- The victim was a close friend of the owner and bitten after stopping by for a surprise visit.
- The victim was someone who knocked on the door asking for directions after getting lost.
Examples of situations that would likely be considered trespassing and thus not eligible for compensation include:
- The victim was bitten after jumping a fence to retrieve a frisbee that had accidentally been thrown into the property.
- The victim was bitten after wandering into a fenced in backyard where he was expressly told not to go, even though he had permission to be inside the house.
- The victim was bitten after showing up uninvited and threatening the owner of the property.
- The victim specifically ignored a "No Trespassing" sign.
- A person broke into the property.
Key factors to remember when considering whether trespassing will be successful as a defense include:
- Police officers, emergency medical personnel, or mail carriers performing their job duties are not considered trespassers.
- Trespassing as a dog bite defense only applies to dog bites occurring on private property. However, the property doesn't necessarily have to be owned by the owner of the dog.
- The law makes no exception for the conduct of school age children. A child can be found guilty of trespassing if he enters an area without the necessary authorization.
Suing for Negligence
Even if a victim is found to have been trespassing, it may still be possible to sue for negligence in regards to injuries sustained during a dog bite attack. This would allow the victim to collect some compensation for medical expenses, lost wages, and pain and suffering.
To prove a premises liability case involving an allegation of negligence, you must establish duty, breach of duty, injury, and causation. This means you must prove that the owner had a responsibility to act in an appropriate manner in regards to securing the dog, but his failure to do so was the direct cause of your injuries.
One example of a case in which the owner may be found negligent is if the animal was known to have aggressive or violent tendencies. Breed alone doesn't make a dog aggressive, but the court recognizes that owners have a responsibility to secure animals with a history of violence towards others.
Having a dog in a backyard that is not fenced in could also be considered negligent if the neighborhood is in an area where children are known to wander. Dog owners have a responsibility to secure their animals or take precautions to prevent children from entering the property.
Seeking Legal Representation
If you've sustained injuries in a dog bite attack, legal representation can help ensure that you receive any compensation available under California law. Claims related to dog bite attacks are generally paid under the owner's homeowner’s insurance policy, which means you'll be dealing with an insurance adjuster whose primary responsibility is to keep costs down for his employer.
The Inland Empire Law Group is committed to advocating for the needs of California residents who've been injured in dog bite attacks and to help them secure the best possible results. Please call today to schedule a free, no-obligation case review. Appointments are available at our Victorville or Rancho Cucamonga locations.
Can you still receive compensation in a dog bite attack if the animal was provoked?
California's dog bite law specifically allows provocation as a defense for liability in a dog bite claim. This means that you might not be eligible for compensation if the owner of the dog that attacked you can prove that you provoked the animal.
Understanding Provocation as a Defense
California's dog bite statute allows a person who is bitten by a dog to pursue a claim for damages based upon a theory of strict liability. This means that the dog bite victim does not have to prove liability, only that the dog bit the victim. However, that standard is not absolute. California's dog bite law allows provocation as a defense, which means that the conduct of the dog bite victim will be taken into account to determine if the claim should be denied entirely or the damages should be reduced by some percentage of fault attributable to the bit victim. What constitutes provocation is not clearly defined in California and is often case specific. This ambiguity has led to some difficulty in settling dog bite claims where provocation is properly asserted as a defense.
Some relatively clear examples of provocation include, a person who hits or kicks a dog repeatedly without reason, such as self-protection is an act of provocation. Other actions of provocation which do not include physical harm to the dog might include, taunting a dog with noise or food such that it causes the dog to reaction aggressively. In these circumstances a person who is then bitten by the dog they are provoking may not be eligible for compensation for some or all of the damages suffered by a dog attack. However, the nature of the attack would be measured against the dog's reaction to the alleged provocation. Some portion of the dog attack might be attributable to the provocation, while another portion is found to be out of proportion to the victim's behavior, thereby holding the dog owner responsible for the additional injuries.
Provocation does not necessarily have to be intentional or malicious conduct towards the animal. For example, stepping on a dog that you didn't see might be considered provocation depending upon the circumstances. Erratic, aggressive, or threatening behavior towards the animal's owner or caretakers may also be interpreted as provocation, even if the dog bite victim made no attempt to interact with the animal directly.
Case law helps a dog bite attorney understand how a court might rule on the issue of provocation. Some case have ruled that the following behaviors specifically do not constitute provocation of a dog bite attack:
- Walking toward a dog.
- Petting or feeding a dog.
- Playing with a dog and patting its head.
- Rising up and turning to face a dog, when previously seated in front of the dog.
- Dangling hands and arms over a fence, without making quick or threatening gestures towards the dog.
Most actions of provocation are measure by the "reasonable person" standard.In other words, would a reasonable person interpret the particular behavior as likely to provoke a dog to act aggressively.In making this analysis one would consider the age of the victim and his or her ability to understand the consequences of such actions.Very young children are assumed to lack the capacity to understand their actions may provoke a dog.
Impact of the Dog's Past Behavior
Since the definition of provocation is somewhat subjective, the dog's past behavior will also factor into whether provocation is allowed as a defense.If the dog has a past history of aggressive behavior, provocation will less likely be a successful defense.Owners of animals prone to aggression have an elevated responsibility to secure their pets or otherwise limit contact to ensure the safety of others.A bite victim who is unfamiliar with the animal can't be expected to know that the animal is more aggressive than average.The dog owner assumes the responsibility to protect others from their dog.
Winning Your Dog Bite Case
To win a dog bite claim, you'll need to establish
- You were bitten by the animal
- The identify of the owner of the animal at the time of the attack
- The injuries you suffered from the attack
If the owner of the dog claims provocation as a basis for a defense, the burden is on the defendant to establish:
- You provoked the dog or were engaged in an activity which would cause a dog to act in the manner it did, such as, trespassing, engaging in criminal conduct, etc.
If you win your case, you'll be eligible for several different types of compensation
- Medical expenses, including past care and any anticipated future medical care related to your injuries from the attack, including future medical care, if applicable.
- Loss of wages for the time you were unable to work due to your injuries.
- Any applicable loss of future earning potential due to your injuries.
- Pain and suffering, including physical discomfort, emotional trauma, disfigurement, disabilities, fear and similar claims related to the attack.
To maximize your eligibility for compensation, it's best to work with a personal injury attorney who has extensive experience handling dog bite claims. The legal team at Inland Empire Law Group is dedicated to helping California residents receive fair and prompt dog bite settlements. Please call today to schedule a free, no-obligation consultation at either our main office in Rancho Cucamonga or our Victorville location.