Were You to Blame for Your Accident? California Law Says You Can Still Collect Damages

April 7, 2017 Personal Injury Lawsuits

An auto accident is usually just that – an accident – which means no one intentionally caused it. Instead, accidents

Female Driver Making Phone Call After Traffic Accident With Head In Hands.An auto accident is usually just that – an accident – which means no one intentionally caused it. Instead, accidents usually happen because someone made a careless mistake or misjudgment while operating a motor vehicle. Drivers are under a duty to operate their vehicles carefully and in accordance with the traffic laws. When they fail to do so, they are liable for the resulting damages and injuries. But if the accident victim was also partly at fault, California law does not prevent them from recovering.

California comparative negligence

California follows what is known as “pure comparative negligence”, which allows you to recover damages for your injuries in an accident even if you were partly responsible – even if your were more responsible than the other party.

During the negotiation process, an insurance adjuster may attempt to assign percentages of fault to the parties but if the case goes to trial, then the judge or jury will decide this. Unlike what are known as “modified comparative negligence” states that only allow an injury victim to recover if he or she is less than 50% responsible (like Arkansas, Maine, and Tennessee), or less than 51% responsible (like Delaware, Massachusetts, and Oregon), California is one of 13 states that allows the victim to recover even if she or he was 99% at fault. In contrast, there are four states and the District of Columbia that do not allow someone to recover anything for a personal injury if they are even 1% at fault.

What this means is that even if you were 80% at fault for the accident that caused your injuries, you can recover up to 20% of the total value of the damages from the other party.

Comparative negligence hurdles

There are some things to keep in mind about how comparative negligence works in California:

  1. Insurance adjusters and lawyers representing the other parties may try to convince you that you do not have a case because you were partially to blame.
  2. You have the burden of proving all of the elements of negligence – that the other party owed you a duty to do or to refrain from doing something but that he or she breached that duty, the breach caused the accident, and your physical injuries and property damages were a result of the accident.

It is a wise decision to work with a CA car accident lawyer in these situations. Retaining a an experienced Los Angeles personal injury lawyer will put a stop to any harassment by insurance companies or other lawyers. It will also ensure that you present the most compelling case, one that complies with court rules and state evidence procedures.

Strong legal representation in Los Angeles

Recovering from the physical pain and impairment resulting from a car accident or other personal injury is hard enough, but mounting medical bills make the process even tougher. If you have been injured in an accident in Southern California, speak with Los Angeles car accident lawyer Sean Salamati. To schedule a free case review in LA, call today!

“California comparative negligence law” resources:

  1. Findlaw, California Civil Code Section 1714, http://codes.findlaw.com/ca/civil-code/civ-sect-1714.html
  2. Justia, California Civil Jury Instruction (CACI), 405. Comparative Fault of Plaintiff, https://www.justia.com/trials-litigation/docs/caci/400/405.html
Read More

How to Use Surveillance to Win a Personal Injury Lawsuit

March 10, 2017 Personal Injury Lawsuits

Video has always been a powerful presentation in legal proceedings and the latest technology has given everyone access. Pretty much

security camera and urban videoVideo has always been a powerful presentation in legal proceedings and the latest technology has given everyone access. Pretty much everyone is walking around with some kind of camera, making it incredibly easy to capture video. This is having a dynamic impact on insurance claims and personal injury cases.

A video is worth a thousand words

People are using their security systems, dash cams and personal devices to capture material that shows insurance companies, lawyers, judges and juries facts you cannot get from police reports or eyewitness accounts. Investigators are going straight to public surveillance cameras to verify the circumstances of incidents. So are commercial retailers and office buildings, many of which have sophisticated camera systems.

Strength of surveillance video in personal injury cases

Savvy Los Angeles personal injury lawyers know it is often not what happened that matters, but what either party can prove with evidence. There is nothing more supportive of a case than surveillance video. Nothing impresses the court system or sways insurance companies like moving images. From claiming to fall on a wet floor to establishing the most likely scenario at an intersection crash, settlement negotiations can be greatly influenced by video.

In a personal injury claim, video can:

  • Reveal which party is accountable.
  • Clarify event sequences.
  • Demonstrate if there were dangerous conditions that contributed to the accident.
  • Show the severity of damage immediately following an incident.
  • Provide lawyers, judges, juries and insurance companies with a clear indication of a victim’s physical injury.

Surveillance & California law

The law restricts how video content can be used in court. One of the strongest rules is that no video capture can be used that invades a person’s privacy. An example would be an insurance company challenging a workman’s compensation claim by showing behavior that contradicts the injury claim. An investigator can video the claimant in a park, store, restaurant or mowing the lawn. They cannot tape in private areas, such as in the claimant’s home.

Getting the right counsel for personal injury cases that involve surveillance video

Depending on the content, video can simplify or intensify negotiation and settlements. It can both show if allegations are exaggerated or if claims are genuine.

The Salamati Law Firm provides steadfast representation for victims of slip and falls, vehicular accidents, animal attacks, and medical and appliance mishaps. We will use surveillance where it helps and fight vigorously if it doesn’t. Expect our goal to be achieving the best possible outcome on your behalf. If you need personal injury legal advice or have been in an accident, give the Salamati Law Firm a call today.

Additional “personal injury & surveillance video” resources

  1. ACLU: Privacy and Surveillance, https://www.aclu.org/issues/national-security/privacy-and-surveillance
  2. The Constitution Project: Guidelines for Public Surveillance, http://www.constitutionproject.org/wp-content/uploads/2012/09/54.pdf
Read More

Should I File a Personal Injury Claim or Workers Compensation Claim?

March 3, 2017 Personal Injury Lawsuits

Anyone who has had the unfortunate experience of suffering an injury while on the job understands the confusing array of

Judge gavel, scales of justice and law books in courtAnyone who has had the unfortunate experience of suffering an injury while on the job understands the confusing array of decisions which must be made in the aftermath of such an event. Financial losses can begin to mount almost immediately, and it becomes necessary to determine whether a workers’ compensation claim or a civil lawsuit offers the best opportunity to secure full and fair recovery. Therefore, it makes good sense for injured workers to gain a strong understanding of the strengths and weaknesses of each option in order to make a truly informed choice about their family’s future.

Important facts about workers’ comp claims in California

As is the case in most areas of the country, the California legislature has seen fit to provide key safeguards for workers who sustain serious harm that is directly related to the performance of their job. This workers’ compensation framework provides victims of workplace injuries a method of receiving financial benefits regardless of fault as a means to pay for essential medical treatment, a portion of wages lost as a result of the event and other limited types of payments. Individuals opting to receive compensation under the program do so in exchange for the right to sue their employer for any negligence thought to have contributed to the injury.

Limitations of relying solely on workers’ compensation

There can be no doubt about the fact that workers’ compensation payments have served as a crucial lifeline for those who have been hurt on the job, though the system is not always sufficient in the assistance it provides to certain types of claimants. Workers’ compensation does not offer recovery for emotional distress or physical pain, often substantial types of losses which can in fact be obtained by filing a civil suit against an at-fault party. Furthermore, because of predetermined benefit schedules, some claimants may never receive the true amount of coverage necessary to stay financially afloat.

Civil litigation as an alternative to workers’ compensation in L.A.

If it appears unlikely that a workers’ compensation claim will yield an appropriate financial recovery in a given circumstance, injury victims may consider filing a civil lawsuit as a way to maximize available settlement or award funds. While going this route will require the victim to prove fault, the potential upside is generally far greater than that in a no-fault workers’ compensation claims scenario.

It should also be noted that there may be instances in which an injury victim will be permitted to pursue a workers’ compensation claim as well as civil litigation, not against his or her employer, but against a third party whose negligence helped cause the harm suffered. Targets of such a lawsuit could include:

  • Public utility companies
  • Subcontractors
  • Heavy equipment manufacturers
  • Commercial vehicle operators
  • Tool manufacturers
  • External architects, project managers, developers and engineers

Dedicated advocacy for injured workers in Los Angeles

For well over a decade, the Salamati Law Firm has provided the compassionate yet aggressive client service injury victim need and deserve. Because every workplace accident is distinct in its own right, we undertake a customized approach to each matter in order to develop a strategy tailored to secure every dollar of available compensation.

Southern California personal injury attorney Sean Salamati understands the burdensome financial challenges that emerge following a serious injury accident and accepts cases on a contingency basis. Thus, victims and their families will owe no legal fees unless and until our firm secures a beneficial outcome on their behalf. If you would like to discuss the facts of your workplace injury and learn more about your legal options, contact us today.

Workers’ compensation and civil lawsuit resources

  1. State of California Department of Industrial Relations, I was injured at work, http://www.dir.ca.gov/dwc/InjuredWorker.htm
  2. State of California Department of Industrial Relations, Workers’ Compensation in California: A Guidebook for Injured Workers, https://www.dir.ca.gov/InjuredWorkerGuidebook/InjuredWorkerGuidebook.html
Read More

Will My Health Insurance Company Take Part of My Personal Injury Settlement?

February 28, 2017 Personal Injury Lawsuits

After a personal injury case is settled, many clients are surprised to discover that their health insurance company is entitled

Couple Reading Letter In Respect Of Wife's Neck InjuryAfter a personal injury case is settled, many clients are surprised to discover that their health insurance company is entitled to take a portion of the payout. People, especially those who are seriously injured in auto accidents, feel that this practice is simply unfair — but the reality is that your insurance carrier has a legal claim for reimbursement on the hospital and medical expenses made on your behalf. This is known as “subrogation,” which enables your insurance company to be indemnified for all medical costs covered after your accident.

While you are legally obligated to pay back your insurance company for the medical treatments your policy covered, a qualified personal injury lawyer can help you tackle this eventuality from the start by maximizing your monetary recovery.

Insurance subrogation

Whether your injuries were caused because of another’s party’s negligence, or you were partially to blame for your accident, your insurance company is responsible for covering your medical bills. This could include doctor’s visits, surgery, rehabilitation, prescription drugs and other care expenses. This safety net comes at a price – your monthly premiums and a binding contract that you signed when you acquired your policy.

When you purchased your health insurance policy, although you may not have been aware of it at the time, you agreed to a subrogation clause, which allows your insurance company to seek repayment from you for medical bills arising from an at fault third party.  In other words, if you were injured by a negligent party and received a personal injury settlement that includes payment for medical expenses, you are obligated to reimburse your insurance company for any monies they advanced for your treatments.

In effect, your insurance company will always pay for your medical treatments according to the terms of your policy, but it also puts a lien on any future monies made available to cover the expenses. If your claim does not culminate in a settlement or court judgement, you (the policy holder) have no monetary obligations to your insurance company beyond your normal premiums.

Why do I have to pay back my insurance company?

Any monies received through a verdict or settlement will be based in part on your medical expenses. This type of legal recovery is based on liability, which means the party who caused your accident would be responsible for paying your medical expenses. If you do not reimburse your insurance for the expenses, you would be, in essence, compensated twice for your injuries.

Keep in mind that that the insurance company is only allowed to claim the actual amounts paid  for your medical treatments, so even though a doctor may have billed for $2,000, your policy may have only paid $1,300 on the claim.

Importance of legal representation

In our experience as veteran personal injury attorneys in Los Angeles, many clients have little knowledge about subrogation liens, and the impact they can have on their financial recovery. If you’ve been in an accident and are filing a claim in Southern California, a skilled attorney can help you navigate insurance subrogation interests, while working hard to optimize the value of your case.

Protect your rights to fair compensation and contact the Salamati Law Firm for a free case evaluation. Our legal team focuses on litigation arising from car accidents, truck accidents and premises liability.

Additional Insurance Subrogation Resources:

  1. CMS.gov, Reimbursing Medicare: Medicare’s Demand Letter, https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Reimbursing-Medicare/Reimbursing-Medicare-.html
  2. California Department of Health Care Services, Personal Injury Program, http://www.dhcs.ca.gov/services/Pages/TPLRD_PersonalInjuryProgram.aspx
  3. CMS.gov, Coordination of Benefits & Recovery Overview, https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Overview.html
Read More

Seven Crucial Steps Toward Winning a Personal Injury Case in California

February 24, 2017 Personal Injury Lawsuits

In a personal injury case, you have been injured by a person or entity due to their negligence. They failed

Judge gavel, scales of justice and law books in courtIn a personal injury case, you have been injured by a person or entity due to their negligence. They failed to do something they should have done.

Say, for example, that a customer dropped a bottle in a grocery store aisle. The grocery store needed to clean it up quickly to ensure the safety of their customers. If they didn’t, and you fell and hurt your arm, you may have grounds for a personal injury lawsuit.

A personal injury suit can secure compensation to pay for medical treatment, including doctor’s visits, prescriptions, physical therapy, disability, and other damages that affected your quality of life. If you had to take time off work, you can recover lost income.

A personal injury suit can be filed in California as long as the injured party files within two years of the date the accident occurred. You and your attorney need to prove that the negligent actions of the defendant were responsible for the injuries you received.

All legal cases rely on evidence and information. There are seven crucial steps you can take that increase your chances of receiving fair compensation for your injuries.

Get concrete evidence of what happened

When you have an accident, take pictures or get a record of evidence about what happened immediately. If you have a cell phone that can take pictures, don’t be shy to snap the scene of the accident. The glass and liquid on the floor, for example, in the scenario above. Any area of your clothes and face, if they show injuries (rips to clothes; blood on you). Even the store employee coming to the scene with a mop after your injury. If the pictures are time dated, even better. If you don’t have a camera, keep any ripped or blood-stained clothes or other evidence.

Get medical treatment immediately

For any injury, the safest action is to get medical treatment right away. Save all records of doctor’s visits, ambulance rides, prescriptions, x-rays or other treatments, like surgery or physical therapy. Be sure to get the diagnosis.

Keep all medical receipts

Keep all receipts for medical and medical-related treatment related to the accident, both immediate and over a period of months. It’s a good idea to keep all these in one place. Include receipts for prescription drugs, physical therapy, doctor’s visits, emergency room visits, and follow-up treatment. Don’t forget mileage driving to and from the treatments. These receipts can provide the basis for compensation.

Communicate well with healthcare professionals about the nature of your injuries

Doctors and other medical personnel need accurate descriptions about how your injuries feel to diagnose them. Does your arm have a stabbing pain or a dull ache, for example? Did the injury affect your range of motion, or ability to perform job tasks? Be sure to describe all the feelings, symptoms, and effects.

Tell your physician and attorney about any prior medical conditions

If you have prior medical conditions that might be causing some of your injury, be sure to be forthcoming about it. Under California law, you may seek damages for an accident that exacerbates a previous condition. But your chances of being looked upon favorably increase if you disclose prior issues.

Let your lawyer know any new information

Keep in touch with your lawyer about any new information that might be relevant. Did your doctor order an MRI? Did you hear that other people have had accidents at the same store? Did your injury flare up and make you unable to drive?

Take a good negotiating stance

Being able to be patient and wait for settlement offers, or for initial offers to rise, is part of being a good negotiator. Work with your personal injury lawyer in Los Angeles to receive the maximum settlement, which is often not the first one offered.

Speak to a personal injury attorney

If you’ve been hurt or lost wages because of another party’s negligence, reckless behavior or wrongdoing, it’s good to know the law is on your side. The Salamati Law Firm has successfully recovered millions of dollars in verdicts and settlements for our clients. We are an aggressive firm that will protect your rights.

Call us today for a free consultation.

Additional “California Personal Injury Lawsuit” Resources

  1. California Courts. Statute of Limitations, http://www.courts.ca.gov/9618.htm
  2. California Courts. Going to Court, http://www.courts.ca.gov/1094.htm
Read More

How Do I Appeal a Personal Injury Case?

February 22, 2017 Personal Injury Lawsuits

In the majority of personal injury cases, a settlement is negotiated before you ever step foot in a courtroom. Cases

Symbol of law and justice in the empty courtroom, law and justice concept, blue toneIn the majority of personal injury cases, a settlement is negotiated before you ever step foot in a courtroom. Cases that are tried before a judge or jury will result in a judgement. As a plaintiff who is suing for compensatory damages, you may not be satisfied with an unfavorable verdict if errors have occurred during the trial proceedings.

In a criminal trial, only the defendant has legal grounds to appeal a verdict, but in civil cases both the plaintiff and defendants have the right to appeal a personal injury judgement. An appeal is a legal process where one party requests that a higher court make a formal change to a decision rendered by a lower court.

A civil appeal is a process used to examine perceived errors of the law that unjustly affected the outcome of the case. If no errors are discovered, the appeal is denied.

Appealing a personal injury case in California

A plaintiff cannot appeal a personal injury verdict simply because they are unhappy with the amount of monetary damages awarded at the end of the trial. In California, the person who is filing the appeal (the appellant) and their personal injury lawyer should be able to highlight a procedural error during the trial that was prejudicial, whether it was committed by the presiding judge or jurors.

The main goal of the court of appeals is determining whether an error or infraction occurred in regards to the legal process.

A few examples of procedural errors committed at trial may include:

  • Improper admission of evidence
  • Judge gives incorrect instructions to the jury
  • Whether expert witnesses were allowed to testify
  • If testimony provided by expert witnesses exceeded their qualifications and scope
  • Trial judge misinterpreted the law

In order to succeed with their appeal, the appellant is tasked with showing that the trial court made a reversible error that adversely affected the outcome of their case.

Filing an appeal after an unfavorable outcome

Unlike a trial, which focuses on presenting evidence, calling witnesses and is generally a fact-intensive proceeding, the appeals process does not reexamine facts of the case, but looks only at the application of law during the trial to determine if errors were made.

In order to file an appeal in the California court system, your attorney must prepare a detailed brief that expounds on the legal arguments at hand. There are also strict deadlines to appeal a personal injury case. As specified in California Rule of Court 8.104, an appellant must file a notice of appeal 60 days from the date of mailing notice of entry of judgment, or 60 days from the date of service of notice of entry by the party, or 180 days from the date of entry of judgment if no notice was provided.

It is up to your attorney to craft a compelling brief that speaks to the relevant laws correctly, in attempt to persuade the appellate court that errors were committed. The brief will usually cite previous cases that support the appellant’s legal standpoint.  If the appeal is successful, the court may remand the case back to lower court, vacate the original judgement or call for a new trial.

Los Angeles personal injury representation

At the Salamati Law Firm, our Los Angeles personal injury lawyers provide sound legal guidance to accident victims throughout Southern California. We are dedicated to providing unwavering advocacy to clients and use our extensive experience to protect your rights throughout every stage of the litigation process.

If you or someone you love needs legal guidance, call us toll-free to discuss your case free of charge.

Additional “Personal Injury Appeals” Resources:

  1. Judicial learning Center, The Appeal Process http://judiciallearningcenter.org/the-appeal-process/
  2. American Bar Association, How Courts Work – Steps in a Trial – Appeals, http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/appeals.html
  3. Court of Appeals, FACTS ABOUT A COURT OF APPEAL http://appeal.laws.com/court-of-appeal
Read More

Children May Suffer Long-Term Effects from Even Mild TBI

May 5, 2016 Personal Injury Lawsuits

Even mild brain trauma may leave a life-long impact on a child. According to a study published earlier this year

Even mild brain trauma may leave a life-long impact on a child. According to a study published earlier this year in the medical journal JAMA Pediatrics, the effects may impact learning and behavior longer than was originally understood.

Study followed children with TBIs for a decade

The JAMA study was published in late February after researchers from Ohio and Canada spent nearly a decade studying kids throughout the American Midwest. The children they followed enrolled in the study between January 2003 and October 2006, and the researchers completed their follow-ups from January 2010 to April 2015. The 130 participating children were studied in their homes, schools, and hospitals.

Of the participating children, just under half – 58 – had suffered a traumatic brain injury (TBI). The remaining children – 72 – had undergone a broken bone or other orthopedic injury. The study compared the two groups to determine how a TBI affected behavioral and academic outcome.

Mild TBIs leave lasting impression

It does not take a severe TBI to make a serious impact on a child’s development. The researchers found that even with a mild TBI, children were twice as likely as the orthopedic injury group to suffer impairments in school. The researchers found more noticeable functional injuries among children with TBI who came from three types of home settings:

  • Permissive parenting
  • Authoritarian parenting
  • Few home resources

The significant long-term effects of even a mild TBI on a developing child underscores the need to protect young people from any type of head injury. It also indicates that in a healthy parenting environment, children may functionally recover from an early brain injury.

Litigating brain injuries in children

There is no everyday brain injury; they can arise in any context from recreation like sports to daily activities like driving to school, to slip and fall accidents or playground injuries. TBIs range in severity from the relatively mild concussion to serious physical trauma. The recent research provides a lesson in the long-term impact of even the seemingly minor injuries.

When a child suffers a head injury, there may be a party at fault whose negligence contributed to it. Some common examples are parties who own or are responsible for the location where the injury occurred or were responsible for looking after the child. These can include:

  • Daycare supervisors
  • Schools
  • Operators or maintainers of playground equipment
  • Youth sports leagues
  • Other property owners or managers

Establishing negligence in this type of case generally requires showing that:

  • The defendant had a duty to be careful toward the child
  • The defendant breached the duty of care
  • The child suffered an injury or other loss that is recognized by the law
  • The defendant’s breach cause the child’s injuries

Proving these elements often requires both experienced legal eyes and expert medical consultation.

If you are the parent or guardian of a child who has suffered a head injury and you suspect someone else is at fault, the Los Angeles personal injury lawyers at the Salamati Law Firm will help you understand your rights. For a free case evaluation, call 888-259-4060.

Resources:

  1. JAMA Pediatrics, Social Environment Moderators of Long-term Functional Outcomes of Early Childhood Brain Injury, http://archpedi.jamanetwork.com/article.aspx?articleid=2492707
  2. Brain Injury Association of America, Brain Injury in Children, http://www.biausa.org/brain-injury-children.htm
Read More