Auto Accidents
Auto Accidents
Under California law, a person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence. In auto accident cases it is key to establish negligence on the part of the at-fault driver. In certain situations, your claim may be denied due to conflicting statements as to how the accident occurred (i.e. each driver says they had a green light at an intersection.) In these cases is it vital to be aggressive in discovery and immediately send preservation of evidence letters to the opposing insurance carriers to prevent spoliation of evidence. In many disputed cases, our office will engage accident reconstructionists to obtain electronic data recorder (EDR) information from the vehicles involved in order to establish a strong liability case. Having an experienced auto accident attorney is crucial in navigating complicated issues of liability in order to ultimately win your case.
In a typical auto accident, a property damage claims adjuster is assigned to determine the cost of repairs and/or loss of use of your vehicle. If you carry collision coverage you can have your own insurance carrier pay for your repairs (less your deductible) or have the at-fault party’s insurance carrier pays for your property damage. At the same time, a “bodily injury” adjuster is assigned to evaluate the merits and value of your injury case. They begin requesting personal information such as your social security number, date of birth, address, and employment information. Most of which they are not entitled to. The purpose of obtaining your social security number is to run it through the Insurance Index Bureau to determine if you were involved in prior accidents. Months later you may find your low back injury claim is denied because of an incident that you were involved in years prior that had fully resolved at the time of the accident.
Having an experienced personal injury attorney is vital in navigating these complex issues and avoiding the typical pitfalls associated with the submission of insurance claims. Having an attorney represent you in such cases exponentially increases the value of your claim. First off, the claim is handled by a different department within the insurance company. It is not uncommon for unscrupulous insurance carriers to make nuisance offers and have injured parties sign releases to avoid them making higher payouts before the injured party has the opportunity to retain counsel. These cases are taken on a contingent basis, meaning that no fee whatsoever is charged to the client and we are not paid until you win.
Economic and Non-Economic Damages
What are damages recoverable in a personal injury case?
The damages in a personal injury case fall into two categories: economic damages and noneconomic damages.
What are special damages (economic damages)? Special damages or economic damages include property damage, loss of use of the vehicle (rental fees or fair market value of use of vehicle), past and future medical expenses, lost wages, and loss of earning capacity. An experienced personal injury attorney will evaluate and compile all necessary evidence for the presentation of your economic damages.
Can I recover my medical expenses?
In California, an injury victim is entitled to the reasonable value of medical services received. A common occurrence is when an injury victim’s health insurance pays for medical treatment directly to a medical provider. Under such circumstances, the victim’s damages for medical expenses are limited to the amount the insurer paid to the facility. Typically a medical facility (i.e. a hospital) will provide a discount to the billed amount as full satisfaction of the bill. For example, an emergency room may bill $100,000 for services rendered but accept $15,000 as payment in full of that bill from your health insurance carrier. This is called the “negotiated rate differential.” Therefore the billed amount is irrelevant and in this scenario, your claimed damages for medical expenses against the tortfeasor would be limited to $15,000.
“[A] plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less. California decisions have focused on ‘reasonable value’ in the context of limiting recovery to reasonable expenditures, not expanding recovery beyond the plaintiff’s actual loss or liability. To be recoverable, a medical expense must be both incurred and reasonable.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4 th 541, 555 [129 Cal.Rptr.3d 325, 257 P.3d 1130], original italics, internal citations
“[A]n injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial. In so holding, we in no way abrogate or modify the collateral source rule as it has been recognized in California; we merely conclude the negotiated rate differential—the discount medical providers offer the insurer—is not a benefit provided to the plaintiff in compensation for his or her injuries and therefore does not come within the rule.” (Howell, supra, 52 Cal.4th at p. 566.)
What is a personal injury lien?
Another avenue for a personal injury victim to receive the necessary medical care is through a “personal injury lien.” In a personal injury case, a “personal injury lien” is where a healthcare provider provides medical treatment without charging upfront or billing health insurance. The medical provider then has a right to get paid for their medical bills directly from any settlement, award or judgment. This allows the victim to receive medical services “on credit” to be repaid once the case is resolved.
We provide our clients with an extensive list of medical providers throughout the southern California area who accept personal injury liens including orthopedic surgeons, neurologists, pain management specialists, radiologists, chiropractors, physical therapists, and neuropsychologists. You will not be required to pay any upfront fees for any medical services received from these physicians.
What are general damages (non-economic damages)?
More commonly known as “pain and suffering,” general damages are damages that an injured party is entitled to for past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress. Under California law “[N]oneconomic damages do not consist of only emotional distress and pain and suffering. They also consist of such items as invasion of a person’s bodily integrity (i.e., the fact of the injury itself), disfigurement, disability, impaired enjoyment of life, susceptibility to future harm or injury, and a shortened life expectancy.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300 [213 Cal.Rptr.3d 82].) Having an experienced personal injury attorney is vital in the preparation of a client for a deposition in order to properly convey all categories of general damages available.
Can you claim damages for injuries that were pre-existing?
The short answer is yes. In nearly all cases insurance companies will attempt to minimize the extent of the victim’s injuries by arguing that the claimed injuries were actually “pre-existing” or a “degenerative condition.” However, California law recognizes that a tortfeasor cannot escape their culpability due to a “pre-existing” or a “degenerative condition” of a subsequently injured party. For example, the relevant medical literature states that nearly everyone over the age of 20 suffers from some degree of degeneration in their spine. In fact, those individuals with so-called “pre-existing” or “degenerative conditions” are actually more susceptible to injury. This is known in California as the “eggshell doctrine.” “That a plaintiff without such a [preexisting] condition would probably have suffered less injury or no injury does not exonerate a defendant from liability.” (Ng v. Hudson (1977) 75 Cal.App.3d 250, 255 [142 Cal.Rptr. 69], internal citations omitted, overruled on another ground in Soule v. G.M. Corp. (1994) 8 Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298].) “The tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability.” (Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471 [268 P.2d 772], internal citations omitted.) Having an experienced personal injury attorney with medical knowledge will aid you in navigating these complex medical issues and properly presenting your claim as to the extent of your injuries.