California Accident Attorneys Blog

Published on: March 2, 2015

San Bernardino County Dangerous Roadway Verdict

Interested jury verdict reported today regarding a San Bernardino County auto accident . The claim was brought on behalf of two persons injured driving along a county road in the desert near Barstow in the case of Branson et. al, v. County of San Bernardino and County of San Bernardino v. James Schult (Case No: CIVBS1200331) My summary and analysis as a San Bernardino traffic collision lawyer is as follows:

Facts of the Case: This case arose out of a single vehicle accident which occurred on a dirt road near Barstow. The driver, James Schult, was traveling down the towards a bridge over the Mojave river. Unbeknownst to him, the bridge had been washed out by a flood and there were no warning signs or other indication not to proceed and no berms or barriers that kept cars from traveling towards the washed out bridge. He crashed his truck in the ravine and both he and his passenger, Loren Branson, suffered serious bodily injury as a result.

Plaintiffs contended that the washed out bridge with no warning constituted a “dangerous condition of public property” for which the County of San Bernardino knew or should have known. The County contended that the condition was not “dangerous” and/or that they had taken sufficient measures to ensure the safety of travelers on the road.

Published on: February 27, 2015

California Appellate Decision on Nursing Home Abuse Claims

by Steven M. Sweat

In a recent California Court of Appeal decision, Lemaire v. Covenant Care California, LLC, the court struck down a jury verdict in favor of the plaintiffs in a blow to patient’s rights. My insight in this decision is as follows:

Facts of the Case:

Patient, Laura Clausen, suffered a stroke and was admitted to a skilled nursing facility in California run by Coventant Care. While in their care, she later died. Her daughter brought an action against the nursing home alleging chronic understaffing causing substandard medical care. She further alleged in the lawsuit that the nursing facility was in violation of California Health and Safety Code 1430(b) in failing to maintain clear and legible notes in the patient history records including notes of “how the patient responds, eats, drinks, looks feels and reacts.” Plaintiff was awarded $270,000 as statutory damages under 1430(b)) and $841,842 in attorney fees along with $26,327.45 in costs. Covenant Care California, LLC appealed this award.

Published on: January 26, 2015

Kern County CA $1 Million Wrongful Death Jury Verdict: Auto v. Tractor Trailer

by Steven M. Sweat

The Los Angeles Daily Journal this week reported a $1 Million jury verdict out of Kern County CA involving an traffic collision between tractor trailer and a passenger automobile (Cardenas v. Hettinga Transportation, Inc.; Freddy Garcia and California Department of Transportation, Case No. S-1500-CV-279). My analysis of the verdict, pre-trial settlement discussions, and post trial motions is as follows:

Facts of The Case: The plaintiff was the mother of the decedent, who died instantly when her vehicle broad sided a semi truck. The plaintiff contended that the truck driver negligently operated his vehicle by running a stop sign. The truck driver and trucking company Defendant appeared to concede liability but, disputed the amount of claimed damages. The plaintiff also asserted a claim against CALTRANS for an alleged dangerous condition of public property. The claim against the State of California was resolved for a nominal sum ($10,000) and the case proceeded to a jury trial against the trucker and his freight carrier employer.

Damages and Settlement Discussions: In California wrongful death civil actions , the plaintiff may claim both out of pocket losses such as lost income the decedent was contributing to the family for financial support, funeral and burial expenses, and other similar losses. In this case, it would appear (although not stated in the reported verdict) that plaintiff either did not have such damages or waived them off and simply claimed “general damages” in the lawsuit. So-called “general” or “non-economic” damages in civil claims where someone is killed are awarded based upon California Civil Jury Instruction 3921, which states that a jury must come up with a dollar figure value for the loss of, “love, companionship, comfort, care, assistance, protection, affection, society, moral support.” The second half of this jury instruction states that, in determining this value, the jury is specifically not to consider the plaintiff’s “grief, sorrow, or mental anguish, the decedent’s pain and suffering, or the poverty or wealth of the plaintiff.”

Published on: January 20, 2015

Things We Can Learn from $4 Million California Bicycle Accident Verdict

by Steven M. Sweat

As reported by the various local news stations, a jury in San Francisco California last week awarded the family of a bicyclist killed by a commercial truck a verdict of $4 Million. While this may seem like a lot to many, I’m sure it is a paltry sum for the loss of a daughter to the two plaintiffs (the cyclists’ mother and father). The victim was Amelie Le Moullac, a 24 year old woman who was riding as her normal commute to work and was struck and killed when a large truck made an abrupt right hand turn in front of her on a busy intersection in downtown San Francisco. As a California bicycle rider’s attorney and advocate, I thought I would try to find some lessons out of this terrible tragedy that may be of use for persons like Amelie who use busy city streets in California for cycling. My thoughts are as follows:

Intersection Collisions Between Motor Vehicles and Bikes Are The Most Common Type of Accident Scenario: In urban areas like S.F., Los Angeles, San Diego or other large cities in California or the U.S. as a whole, more bicycle accidents occur in and around busy intersections than just about anywhere else. This makes is extremely important to be extra cautious and “defensive” as a cyclist approaching or traveling through an intersection of any type but, especially one where there is a high volume of vehicular traffic. The scenario in this particular case is all too common. A cyclist is traveling straight along the ride hand edge of the roadway as proscribed and allowed by the California Vehicle Code, a larger vehicle fails to observe the cyclist and makes an abrupt right hand turn and a collision occurs. At a minimum, this results in a broadside collision and can result in the biker being dragged underneath the vehicle and crushed. There are several Cal. Vehicle Code (“CVC”) sections that come into play here including the following: (1) CVC 21200 and following, defines a bicycle as a ‘vehicle’ with the rights to use the roadway like any other; (2) CVC 22107, provides a duty on the part of a driver attempting to turn right to make sure that traffic traveling in the same direction of travel is a safe enough distance away to make the turn without coming into contact with any other vehicles.
Inability/Unwillingness of Criminal Justice System to Deal With Bicycle Crashes: In this case, like many others, the local District Attorney’s office and police were reluctant to charge the driver with any type of criminal offense including but, not limited to reckless driving or vehicular manslaughter. They initially stated there was not enough “evidence” against the driver. The attorney for the victim’s family had to obtain footage from a local surveillance camera to show that the truck never even slowed down and never appeared to look in its side view mirrors prior to turning in front of the cyclist. This was impactful evidence that was very effective in the civil trial for wrongful death and could have certainly been used in a criminal prosecution of the driver.

Published on: January 7, 2015

Will giving driver’s licenses to illegal immigrants increase the uninsured motorists in California?

by Steven M. Sweat

California has one of the highest populations of illegal immigrants residing in the state of any state in the Union. In fact, it is estimated that the number of illegal aliens in California is somewhere between 2.5 and 3 Million (Reference: Los Angeles Almanac, 2011). After decades of debating the issue, the California legislature has decided that it would be better to allow these persons to obtain a driver’s permit and be legally sanctioned to operate a motor vehicle on the roadways of the Golden State than to continue to have unlicensed persons driving cars on our roadways. (See Los Angeles Times Article: “Historic Day as Immigrants in U.S Illegally Begin Getting Driver’s Licenses”). The question becomes: Will this increase the number of uninsured motorists on our California freeways and roads? Like any other driver, illegal immigrants are required to show proof of insurance as a pre-requisite to obtaining a driver’s license. However, like many other drivers in California, some choose to buy auto insurance prior to applying for a license and then let the policies lapse later. Whether this measure to allow licenses will increase the number of insured drivers or, by contrast, the number of persons who choose to operate without insurance or the number of people who choose low cost, low limits coverage is debatable. Presently the minimum liability protection one must purchase to be “legal” in CA is $15,000 per person and $30,000 per occurrence for bodily injury! This is hardly ever enough to cover the present and future medical expenses much less compensate for physical pain and mental anguish caused by any significant traffic collision.

What is the best way to protect yourself against uninsured motorists in California?

The answer to this question is simple: Make sure that your own auto insurance policy has uninsured motorist coverage! As I have blogged about numerous times, California actually requires each and every auto insurance policy sold in the state to contain both uninsured and underinsured motorist protection. UN-insured motorist (UM) provisions pay for personal injury (including medical expenses and pain and suffering) in the event you are involved in a collision with a driver operating completely without insurance. UNDER-insured motorist (UIM) coverage applies when you are hit by a driver that has a low limits policy which is less than your own limits of coverage. (For example: If the at fault driver has the state minimum of $15,000 for bodily harm and $5,000 for property damage and your own carrier has limits of $100,000 for injury and full repair or replacement value, you would be able to exhaust the $15,000 plus $5,000 limits and then seek the excess ($85,000 for personal injury and additional for car damage) from your own insurance carrier). These coverages are mandatory in the Golden State BUT they can be waived at the time of the sale of the insurance policy. Such waiver must be in writing and contain very specific language as required by the California Insurance Code. In my opinion as an attorney that represents auto accident victims in CA, I think you should NEVER waive this coverage! In fact, you should review your policy or at least the “declarations of coverage” information that is sent to you each year to make sure you have UM and UIM protection. This was always essential and now that there will be thousands more motorists on the road with the potential to have limited or no coverage, it is even more crucial to have this auto insurance protection!

Published on: December 11, 2014

Uber Wrongful Death Lawsuit Shows Flaws in Ride Share System

by Steven M. Sweat

Uber Technologies, Inc. has fast become the largest of a new breed of transportation companies commonly known as “ride-sharing” nationwide and especially in large urban areas like Los Angeles and San Francisco. Unfortunately, it appears that the growth of the company is outpacing the planning for safety and consumer protection. One high profile incident in San Francisco involving an Uber driver who struck and killed a 6 year old girl has now spawned both criminal charges against the driver and a wrongful death lawsuit against Uber. (See discussion here: Insurance Journal).

How do ride sharing companies operate in California?

Ride sharing is a good concept in theory. People “volunteer” to use their own vehicles to pick up and drop off passengers based through an app that is installed on a smart phone. It tracks where drivers are in relationship to potential passengers and allows people to request a “ride” at a moments notice as an alternative to calling a taxi. As I have discussed in other posts (see here), the California Public Utilities Commission (“PUC”) was one of the first public agencies to attempt to regulate these services and provide some basic requirements for operation. They enacted provisions which require Uber, Lyft, SideCar and others to conduct background checks on drivers, to train drivers on safety and to provide insurance above and beyond the limits of the auto accident policy for the vehicle or the driver.

Published on: November 13, 2014

Mercury Insurance Can’t Avoid Payment of CA Judgment Based Upon Claimed Exclusion

by Steven M. Sweat

Mercury Insurance is one of California’s largest auto insurance carriers. In a recent decision, Mercury Cas. Co. v. Chu, 229 Cal. App. 4th 1432, 178 Cal. Rptr. 3d 144 (2014) the Fourth District California Court of Appeal has upheld a $333,300 judgment despite protests by the insurance carrier that the claim was not covered.

Facts of The Case:

Mercury Casualty issued an insurance policy to Hung Chu insuring his automobile. Chu was driving with his roommate, Tu Pham, when Chu collided with another vehicle, injuring Pham. Pham filed a personal injury action against both Chu and the driver of the other vehicle. Mercury agreed to provide Chu with a defense to the lawsuit under a “reservation of rights” but, asserted that Pham’s injuries were not covered because Pham qualified as an “insured” under the policy due to the fact that he resided with Chu at the same address. The policy broadly defined an “insured” to include “residents,” defined as, “an individual who inhabited the same dwelling as the insured.” According to Mercury, the permitted exclusion authorizing auto liability insurance to exclude coverage for bodily injury claims brought by an insured applied and they should not have to pay the judgment against Chu by Pham.

Published on: November 3, 2014

Hotel Injury Claims in CA – Lawrence v. La Jolla Beach Club

by Steven M. Sweat

I saw an interesting appellate decision out of the California Fourth District Court of Appeal (Southern California) regarding tort liability of hotel operators. The case was Lawrence v. La Jolla Beach and Tennis Club, Inc. – decision rendered October 31, 2014 (Reference Daily Appellate Report @ 14737).

Facts of the Case: On October 5, 2008, Jeff and Nan Lawrence checked into the La Jolla Beach and Tennis Club Hotel with their three sons. This was a family vacation and a celebration of the sixth birthday of their two twin boys. Nan made a request to be placed on the first floor of the hotel but, at the time of check-in, was informed that there were no first floor rooms and was given a room on the second story of the building. Nan opened the window in their room to hear the ocean. The three boys were playing and eating grapes inside the room. Jeff was working on his computer and Nan was planning a schedule when they heard a scream from one of the children. They ran to the window to find that their son, Michael, had fallen out of the window and onto the concrete pavement below. Michael suffered major head and brain injuries.

It appeared that when the little boy fell against the window, the screen popped out and fell to the ground. The window sill was approximately 25 inches above the floor and about 4-6 inches deep. The plaintiff testified in a deposition that he had placed his foot on the window screen and leaned forward to look out of the window just before falling out.

Published on: October 30, 2014

Halloween Child Pedestrian Accidents in California

by Steven M. Sweat

Halloween child pedestrian accidents in California are still a major problem, as they are across the United States. We all love to see our kids dress up in costumes and be able to go from door to door trick or treating but, according the “Safe Kids USA” and the Centers for Disease Control, children are more than twice as likely to be struck by a car on Halloween than any other day of the year ! This is even more true in densely populated urban, residential neighborhoods like we have in Los Angeles, Orange County and other parts of Southern California.

What are the most common scenarios for minors being struck by cars on Halloween:

Most fatal child pedestrian accidents occur between 5:00 p.m. and 9:00 p.m. on October 31st with 6-7 p.m. being the peak hour for such incidents

Published on: October 10, 2014

Car Crash Resulting in Multiple Teen Deaths in Orange County CA

by Steven M. Sweat

A car crash resulting in multiple teen deaths in Orange County, CA was reported by the Los Angeles Times to involve the following all too common factors in traffic collisions involving younger persons as follows:

The auto accident happened at approximately 2:10 a.m. as the teens were returning from Knott’s Berry Farm.
There were five total occupants in the vehicle at the time of the crash (A driver and four passengers).