Category: Wrongful Death

Confusing Auto Insurance Policies Confound Drivers

woman confused
Confused about your policy? You’re not the only one.

According to an online Harris Interactive poll, reported by Insurance Networking News, confusing insurance policy wording makes auto insurance policies incomprehensible to 36% of American drivers.

The survey revealed that 87% of drivers who currently have auto insurance said they had read at least some of their auto insurance policies, but that 36% of those drivers complained that their auto insurance policies were somewhat or very difficult to understand.

Despite the fact that more than 30 states have enacted laws intended to simplify policy language, the online quote aggregator says that many consumers are confused by how their policies are written, and struggle to determine what’s covered and what’s not.

California Flag The irony with all this is, in California and many states, the law presumes that a consumer has read their insurance policy and understands its terms. I advise all my clients to read their policies as carefully as they can and then ask their broker/agent questions about the parts they don’t understand.

Not that this always helps. I have one case right now where the insured read their policy and thought they understood it, only to find out when their claim for a defense was denied that there was some case law the insurance company thought meant that the policy didn’t cover anything.

The truth is, right now the law favors insurance companies over consumers, so people need to watch their step and be very careful in buying and maintaining insurance.

And, yes, I read my own insurance policies and, no, I don’t understand everything I read, even though I litigate insurance disputes for a living.

What a world.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

 

Understanding brain activity during personal injury trials

breakfast on tray
You need to fuel your body when you’re on a jury — jurors need proper food and water.

Whether you are a judge on the bench, a juror in the jury box or an attorney arguing the case, a personal injury trial takes a lot out of you.

What none of us usually take into account is, the human body has natural rhythms and patterns that affect our ability to absorb and process information that the courtroom process rarely take into account.

For example, it is well documented that stress causes the body to produce the hormone, cortisol, and that excess cortisol can interfere with the brain’s ability to create new memories.  (See this article on the Diurnal Cortisol Cycle.) At the same time, when the body produces increased amounts of the hormone dopamine, concentration levels rise.

When I’m training for a marathon, I make sure to wear a fuel belt with water, little carbohydrate gel paks and gatorade to replenish minerals and electrolytes that my body uses while running, because everyone understands that the human system, like a machine, needs replenishment to function in top form.

So, I’m always amazed that during trial, the jury usually isn’t provided much more in the way of fuel than the bailiff or courtroom attendant pointing out where the drinking fountain can be found and how snacks can be purchased on the second floor and in the rooftop cafeteria.

This is downright weird, when you think of it.  After all, trial is stressful on all the participants.  The jury especially is empowered as a democratic body to weigh facts and decide on a verdict, which is hands down the most important job in the process.  So, why don’t we take better care of our decision makers?

In the courtrooms where I practice, attorneys are usually permitted to bring in water bottles and can stash snacks in their bags if they are so inclined.  It’s always felt awkward to me to sip my cool water when I know the jury in the box isn’t provided with the same opportunity.

Note to self:  Propose that courtroom judges be asked to instruct jurors that they may bring food and drink, reasonably, into the box so they can help themselves stay alert.  Appropriate limits need to be set, say water or soft drinks for consumption during testimony, snacks available in the jury room during breaks.  Perhaps the attorneys can be asked to equally contribute to a fuel fund to save the state some financial burden.

Not all judges will allow for providing fuel for jurors, but some may.  I think most would be willing to let the jurors know they are in a stressful job and let them know, just like my marathon trainers tell their runners, that getting the most from the experience requires proper fuel.

 

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Defective Product Litigation and Injury Lawsuits

On the surface, product liability would seem to be a pretty cut and dry area of the law and being a litigation attorney may not seem super exciting. I mean it all seems like common sense. Some manufacturer or seller creates or distributes a product, a consumer purchases it and is injured, or perhaps even dies as a result of using it and naturally the manufacturer is automatically responsible for said injury and attempts to make things right. However, this area of law has many pitfalls that await consumers who have been harmed and for the inexperienced personal injury attorneys who try these cases.

Filing a Product Liability Lawsuit

According to some estimates, injuries, deaths and property damage from defective and recalled products cost the public more than $500 billion each year. Recently, a man in San Jose was awarded a $9.8 million judgment in a product liability case involving a surgical stapler that caused him grave bodily harm. Thus, product liability cases, unfortunately, are not an insignificant part of the legal system. In this case, without the proper legal counsel as to the circumstances, criteria and time limits involved in filing suit in a personal injury claim for product liability,it could have ended even more tragically for this person. Knowing when to file a case is one of the first steps to succeeding in personal injury cases involving product liability. In the state of California, for example, an action must be brought within two years from the time when the injury occurred. Here are some other things to know when filing a personal injury claim involving a defective product:

Establishing liability in personal injury cases involving a defective product

There are four legal means for establishing liability in personal injury cases involving a defective product:

  • Negligence: This is when expected, reasonable care is not taken and an obligation to do so exists. Negligence can occur when defective partsor improper assembly result in some injury.
  • Breach of Warranty: This is when a seller fails to uphold a claim or promise regarding their product.
  • False Advertising: This is when a consumer is misled into believing that a product is safer than it actually is.
  • Strict Liability: This is when the manufacturer or seller of a defective product is responsible for all injuries occurring from the use of the product. This also means that everyone involved in the making of a consumer product is potentially liable for any personal injury that results from using the product.

Obviously, manufacturers and sellers never mean to harm consumers with the products they create or distribute. However, intent is irrelevant when you suffer an injury and are required to pay hospital bills or when a loved one is struck down through no fault of his or her own. How can you be made whole after you are harmed by faulty—even deadly—products? We are Daniels Law, a Hollywood law firm that specializes in all areas of personal injury including the very complicated area of product liability. We are familiar with all aspects of product liability and can inform you as to your time limits to file and the types of product defects (design, manufacturing errors and false advertising) there are. We know that the cost to life and limb in these cases can be inestimable.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

California Personal Injury Law: The Basics

Personal injury is a much nuanced area of the law; in the state of California this is particularly so. However, even though many aspects of personal injury law vary from state to state, there are some commonalities. In general, all personal injury attorneys handle tort laws cases and provide legal representation to persons who claim to have been physically, psychologically, or financially injured due to the action of another person. These types of cases could involve anything from medical malpractice to defective products to bike and car accident, etc.

What are Personal Injuries?

In California, personal injuries are divided into three categories that determine whether the “threshold” has been met – Intentional, Negligence and Strict Liability. In cases of negligence, several things must be proven (1) a duty was owed to another, (2) that duty must have been breached in some way or another, (3) that breach must be both the actual and proximate cause of injury (4) there must be some degree of damages. Strict liability is where an individual is liable whether the conduct was intentional or negligent. Finally, intentional is where someone intended the injury that occurred

The Statute of Limitation

The statute of limitations for filing a personal injury claim in the state of California is two years. For medical malpractice the limit is three years. In California, if you believe you have a case it is crucial that you find a personal injury attorney in California who can advise you as to your rights. If you have waited too long to file, it could mean the end of your case before it even begins.

Injury and Damage Limits

Damages awarded to victims of personal injuries in California fall into two basic categories – economic damages and non-economic damages. Economic damages are out-of-pocket damages that can be documented such as medical bills, medical expenses, car repair bills, etc. On the other hand, non-economic damages are of an intangible nature. This covers things like pain and suffering, inconvenience, etc.

Before you hire an attorney, make sure that he/she is familiar with the applicable laws in your state. At Daniels Law you can retain the best California litigation attorney to familiarize you with all aspects of personal injury law in California. Our offices can provide you with a Los Angeles attorney who has the necessary knowledge and skills that could mean the difference between winning and losing or even getting your case to court.

 

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

 

Watch out if your employer health plan pays for your accident injuries

Many employer provided health plans are covered by a federal law called ERISA (Employment Retirement Income Security Act).  This Nixon-era law was originally meant to keep union plans from being stripped by unscrupulous institutions.

Important fact:  If your employer provided health plan paid for your accident injury medical care, ERISA may cause problems in your personal injury claim if you aren’t prepared up front.

Many ERISA health plans have language that require reimbursing the insurance company for any money they paid out for accident injuries if there is recovery from a third person.

In other words, if you settle your claim for $100,000 and the medical expenses are $110,000, you could wind up owing the insurance company $10,000 more than you settled for.  Depending on the language in your health plan, you might not even get to deduct the money you paid your attorneys or the costs of settling the claim.

That might sound unfair, but it’s the law according the the U.S. Supreme Court.  US Airways v. McCutchen, 113 S.Ct. 1537 (2013).

We’ve had these cases and the trick is to get with the insurance company at the very beginning and try to negotiate a fair deal.  You have leverage before you settle your claim that you don’t have once the money is in the bank.

The takeaway?  Hire an attorney who is familiar with the ins and outs of ERISA.  If you’re interviewing a lawyer, have an employer-provided group health plan and your prospective attorney doesn’t know about US Airways, you might want to think about looking elsewhere.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Dead or Alive – the untold story of Jahi McMath and the law

Largely undebated in the Jahi McMath story is how the medical establishment benefits if the 13-year-old California child is found dead rather than alive.

Jahi McMath was in California when she underwent a routine tonsillectomy at Children’s Hospital in Oakland. She woke up after surgery, began bleeding and eventually went into cardiac arrest. A coroner issued a death certificate dated December 12 after testing indicated Jahi is brain dead. Only, Jahi is on life support. She is still breathing. Her heart is still beating.

Jahi’s body may be kept alive indefinitely. Her family clings to slender hope. Doctors and ethicists debate where life ends and death begins.

That is the human story. Let’s look at the legal.

In California, the medical profession is protected from civil lawsuits by a 1970’s vintage law known as the Medical Injury Compensation Act of 1975 (MICRA).

Under MICRA, if the McMath family pursues a medical negligence lawsuit against Children’s Hospital and the doctors who treated Jahi, they can recover no more than $250,000 in what are known as “general damages,” what lay people know as pain and suffering.

Special damages, things like medical expenses, do not have a cap.

So, here is how it works.

If Jahi McMath is truly dead and died because of medical mishap, then the most her lost life is worth in a courtroom is $250,000, plus reasonable medical expenses after the surgery (probably not all that much), less attorney fees and legal costs.

If Jahi McMath is alive and living on life support because of medical negligence, then her life is worth the $250,000 in pain and suffering, plus medical expenses after the surgery of as much as $7,500 per day. (The later amount comes from Dr. Art Caplan, head of the Division of Medical Ethics at NYU Langone Medical Center, as quoted in a recent NBC News story.)

California’s Judicial Council publishes a life expectancy chart in its jury instruction books that give Jahi another 69.2 years to live. If she reaches that normal life expectancy – not likely given her incapacity, but not impossible either – then at $7,500 per day, her medical expenses can be projected to total $2,737,500 per year, or $189,435,000 over 69.2 years, using simple arithmetic.

So, alive, Children’s Hospital and Jahi’s doctors could be looking at a verdict of around $190 million, give or take.

Not that the doctors and hospital have that much insurance.

In other words Jahi McMath’s doctors and Children’s Hospital have a significant financial interest in persuading the world that Jahi is dead and cannot ever recover regardless of any advance in medical technology or the hand of God.

This is not to cast aspersions on anyone’s integrity or assign bad motives. It is simply a fact.

Old western wanted posters made no distinction between bringing in outlaws “dead or alive.”

California’s modern legal system prefers patients who are dead.

Click here for an article from January 2017 for an update on the case

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Elder abuse is something more than medical negligence

Personal injury law includes work in the elder abuse area and it’s important to understand that, in California, the remedies for elder abuse are much stronger than we are allowed for medical malpractice.

In general, California law is restrictive when it comes to medical malpractice. Under the MICRA statutes, general damages (meaning pain and suffering) are limited to no more than $250,000 no matter how horrible the injury.

Attorney fee caps also limit the amount you can pay a lawyer under a contingent fee contract, which means that unless you are able to pay by the hour, your choices for representation are limited, if you are able to find a lawyer willing to take your case at all.

The California legislature provided some relief from these restrictions in the case of elder abuse, but with some caveats.

Our Supreme Court explained in Delaney v. Baker (1999) 20 Cal.4th 23, that where a doctor, hospital or nursing home are reckless in their care of an elder (defined as someone 65 years of age or older or a dependant adult), then the MICRA limits do not apply.  Discussing the meaning of Welfare & Institutions Code section 15600 et seq., the court said:

“In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. (Civ. Code, § 3294, subd. (c); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 [34 Cal.Rptr.2d 898, 882 P.2d 894].) (4 ) “Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur (BAJI No. 12.77 [defining “recklessness” in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action … with knowledge of *32 the serious danger to others involved in it.” (Rest.2d Torts, § 500, com. (g), p. 590.)”

I mention this because MICRA limits have definitely closed the courthouse door to many claims in California.  But where there are facts suggesting elder abuse, it’s worthwhile to consult a knowledgeable attorney to find out if there is a remedy under the law.

 

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Elder Abuse Is A Crime

  • The United States Census Bureau projected in 2000 that California’s elderly population will have doubled by 2025 to 6.4 million – a larger growth rate than any other state.
  • The California State Department of Finance claims that the number of California residents age 85 and older – those who are most likely to need nursing homes — will nearly double by the year 2030, when the bulk of baby boomers will come of age.
  • In 2005, the Office of Statewide Health Planning and Development reported that one-fifth of California’s nursing facilities did not meet state-mandated requirements for staffing levels.
  • In 2006, Centers for Medicare and Medicaid Services reported that twice as many of California’s 115,000 plus residents are placed in physical restraints as are nationally.
  • From 2001 to 2005, the California Department of Health Care Services, found that two-thirds of all reported deficiencies caused or could have caused significant harm to one of more residents in nursing homes. More than half of all complaints in nursing homes are related to poor quality of care. Eighteen percent of substantiated complaints were related to mistreatment or abuse.

By learning to recognize signs of abuse and reporting suspected cases, you can make a difference in the lives of elderly and dependent Californians. Click here for the Citizen’s Guide to Preventing & Reporting Elder Abuse

 

Statistics from State of California Department of Justice, Office of the Attorney General

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

How to hire a personal injury lawyer

I’m writing about how to hire a personal injury lawyer because of something that happened to an old friend of mine.

Without giving away any confidences, the story goes something like this:

My friend’s wife was seriously injured in an automobile collision.

My friend hired a personal injury lawyer who holds himself out as a skilled P.I. attorney.  My friend found the lawyer on the internet and didn’t check references.

The P.I. lawyer took my friend’s case and then handed it over to a junior attorney.  The junior attorney spent almost two years working on the case.  I’m not sure what the junior attorney actually did during all those months.

The junior lawyer then told my friend that (1) the skilled personal injury lawyer my friend had hired was too busy to meet with my friend and discuss the case and (2) even so, the “skilled” lawyer had decided he would not file a lawsuit under any circumstances.  Since a deadline for filing the case was coming up, this created something of a problem for my friend.

Then, the junior lawyer disclosed he had a VERY low offer from an insurance company to settle the claim and began pressuring my friend to accept it. He applied this pressure even though the accident was already costing my friend an amount equal to the entire offer every single month.

My friend decided to ask for a second opinion. He came to me. I looked at the file. I did some investigation.

We are working on fixing the problem because it doesn’t seem like the very low offer is fair.

The point being, what I am describing is something that should NEVER happen.

When you hire a personal injury lawyer, that lawyer is supposed to work for you.  They should meet with you.  They should communicate with you.  They should work hard on your case.

Too often, a lawyer will forget those simple truths.

So, the first thing you need to know about hiring a personal injury lawyer is – don’t assume that just because the lawyer says they practice personal injury means they they have the skill and the drive to keep your best interests at heart.

A good P.I. lawyer puts you first.  You might not like what they tell you.  But they will not pressure you to do something that isn’t fair to you.

Some advertising lawyers are great attorneys.  Some are just great advertisers.  So, what I tell people is, when you are looking for a great P.I. lawyer, your best course is, ask someone you trust for a referral.

Ask your family and friends if they can help steer you to a trusted professional for advice.  Lawyers in the community generally know who the reputable personal injury attorneys are.  Also, reputable lawyers won’t charge if you simply consult with them to help you find the right attorney for your needs.

Also, don’t feel like you are asking for a favor when you ask an attorney to refer you to a reputable personal injury lawyer.

In many states – California being one – attorneys can often negotiate a referral fee when they connect you with the lawyer who takes your case.  That referral fee SHOULD NEVER increase the attorney fee you will be expected to pay.

So, it makes good sense to let a trusted expert help you find the right lawyer to represent you in your claim.

You know to shop smart at the supermarket. Apply those same skills when you or a loved one suffers a personal injury and needs to make a claim.

The problem is, if the injured party is not a US citizen and didn’t contribute to social security or pay any Medicare tax, they won’t qualify for Medicare benefits and the government will not (at this writing at least) provide any document that states there is no lien.

If the conditions are right, then the solution (short of having Medicare on the check and sending it off for endorsement, which takes months) is an indemnity clause in the settlement agreement.

Make sure this will not blow back on you or your client, but if you decide to go this route, here is some language that has worked for us with State Farm and Farmers:

FURTHER, as a condition of the settlement and release, Claimants represent and warrant that as of the date of this signing, Claimants have provided the released party’s(ies’) Insurer ______________________ (“Insurer”) all information Claimants know about any and all Medicare rights to recovery as of this date. Claimants agree to reimburse, indemnify and hold harmless each of the persons, firms or corporations released hereunder and their Insurers, including their agents and assigns, with respect to all known and unknown Medicare rights to recovery related to the Subject Accident for which the federal government may seek repayment, as well as any fine or penalty the federal government may seek resulting from the sufficiency and accuracy of the information Claimants have provided to Insurers regarding Medicare rights to recovery known as of this date.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

When Catastrophe Comes Calling and Ten Insurance Claim Do’s and Don’ts

When Catastrophe Comes Calling and Ten Insurance Claim Do’s and Don’ts

  1. The Catastrophic Claim

It seems that Southern California is the land of natural disaster.  Between fire, flood, earthquake and the occasional stray hurricane,  we get more than our share of Mother Nature’s wrath.

Since our region is also one of the most highly populated and  developed portions of the world, every disaster brings either the  threat, or the reality, of catastrophic loss.

Ah, but at least there’s insurance covering the homes you probably thought, that can be true, and it can false.

The fact is, whenever there is catastrophe, insurance problems rear their ugly head. Some of the problems are structural in the marketplace, such as limited replacement coverage or properties that through poor underwriting practice have little or no insurance. Some of the problems come from unfair adjusting practices – a carrier that would rather fight than pay its fair share, a catastrophic claims team that is unprepared for the realities on the ground in Southern California and tries to treat our special situation in the same manner it handled that tornado in Kansas last fall or the blizzard in Ohio last winter.

As practitioners, our clients look to us as being experts on how to find their way through the insurance maze during what might well be the worst period of their own natural lives. In a catastrophe such as the recent firestorms, your client might not even know who their insurance company is. The policies and all other important documents may well be cold ash by the time your client knocks on your door asking for help.

There isn’t any boilerplate formula for advising insureds about how they might find their way through the insurance maze following a catastrophe. There are, however, some situations that seem to come up time and time again.

This article covers many of the common problems you and your client might face, as well as a brief primer on some of the most common defenses to coverage and bad faith claims you might encounter. At the end, I’ve included a list of ten insurance claims Do’s and Don’ts you might find helpful.

In any event, the best place to start is at the beginning. So far as an insurance claim is concerned, the beginning and the end is always the policy.

  1. The Policy as Beginning and End

It’s amazing how often we make the simple mistake of forgetting that insurance really begins with a written contract. Yes, it is true it is a special contract, where in exchange for premium dollars an insurer takes on a quasi-fiduciary role towards its insureds, etc.

But, still, somewhere in all those duties, obligations, conditions, coverages, covered and excluded perils there is a written contract.

The first thing that needs to be done in advising on a catastrophic insurance claim is to get a copy of every policy that might possibly provide coverage for the damaged property and read them all from front to back.

Every property policy will have a declarations page that is specific to the insured property, followed by various policy forms, endorsements, riders and attachments. The declarations page should identify each and every form, endorsement, rider and attachment that makes up the complete policy, usually using a policy form number and sometimes, a date.

Compare the policy forms the carrier delivered to your insured against the declarations page to make sure everything matches.

Without going into great detail, a basic principle is that the insurer is bound by whatever contract it delivers to the insured and sometimes you will find that the insurer’s policy services people delivered better coverage than the insurer’s own records reflect.

First thing, make sure you have every policy that applies to the property and then read them. It doesn’t have to be a thorough review at the very beginning. But know what you have.

If your client doesn’t have the policy forms because they were lost, destroyed or are otherwise unavailable, you’ll have to get policy reconstructions from the carrier. Requests can be made to your client’s agent or broker or directly to the carrier’s policy services department. If your client doesn’t remember who their carrier was, you’ll need to do a little detective work. Start with the insured’s checking account, most people pay for their insurance by check and a review of banking records might well lead you to every carrier that  might provide coverage for the damaged property.

III. Agent Negligence

One issue that frequently arises following a catastrophic loss is that the damaged property was not adequately insured in the first place. Where an agent or broker provided your insured with professional advice on the appropriate coverage or bound coverage based upon their own professional expertise, there may be a claim for professional negligence. See, e.g., Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726, 11 Cal.Rptr.2d 296.

Not every under insurance problem is attributable to a broker or agent. In the past, some carriers have systematically reduced coverage for various risks for their own underwriting reasons, and not adequately disclosed what they were doing. Under such circumstances, liability for the under insurance may lie with the carrier.

Of course, brokers and agents are different flavors of insurance salespeople and each has a different role in the insurance system and different duties and obligations towards insureds. Still, the point remains. If the damaged property was not adequately insured in the first place and your client relied on a professional for insurance advice, investigate.

  1. Prudential LMI, Spray Gould – Ask Not for Whom the Statute Tolls

Property insurance contracts generally have their own statute of limitations built in and the period in which to file suit to enforce the contract is almost always less than the period that applies to a plain vanilla written contract.

When you perform your initial policy review, look for the contractual statute of limitations. If one does not appear, check an insurance practice guide for clues about any special period that might apply to any given coverage.

The general rule is that the limitations period begins running once the loss occurs, is tolled during the claims investigation and then runs again when the investigation is complete. See, Prudential LMI Commercial Ins. v. Superior Court (1990) 51 Cal.3d 674, 274 Cal.Rptr. 387.

California insurance regulations require a carrier to advise its insureds about applicable time periods affecting the claim, including the time in which suit may be brought. If the carrier does not make such a disclosure, then it may be equitably estopped from raising the statute of limitations as a defense. See, Spray, Gould & Bowers v. Associated International Ins. Co. (1999) 71 Cal.App.4th 1260, 84 Cal.Rptr.2d 552. Other misbehavior by a carrier may also create an estoppel where suit is filed after what would normally be the limitations period. See, e.g., Vu v. Prudential Prop. & Cas. Ins. Co. (2001) 26 Cal.4th 1142, 113 Cal.Rptr.2d 70.

However, beware of varying limitations periods. When in doubt, calendar the earliest possible date and file before it as a protective measure, or try to arrange a tolling agreement with the carrier.

  1. Efficient Proximate Cause

When wildfire causes loss of ground cover followed by pouring rains resulting in mudslides that destroy a home, how do we determine the cause of the loss for insurance purposes?

In California, the analysis is to look for the efficient proximate cause of the loss.

The general rule is that where there are two or more causes of loss, what we call “concurrent causation,” the peril that set the chain of causation in motion is the cause of loss for insurance purposes.

So, following the hypothetical above, where wildfire is a covered peril there is coverage under the policy, even if earth movement (mudslides) are excluded. Howell v. State Farm Fire & Cas. (1990) 218 Cal.App.3d 1446, 267 Cal.Rptr. 708.

This is always an important area where there are catastrophic losses as carriers will typically seize on an excluded peril in denying coverage while ignoring a covered peril. It is important to perform this analysis early on and advise the carrier of your coverage reasoning so that there is no question that the insurance company is on notice.

Ignoring California law in making a claims decision is bad faith conduct justifying punitive damages. See, e.g., Hughes v. Blue Cross of N. Cal. (1989) 215 Cal.App.3d 832, 263 Cal.Rptr. 850.

The key cases are Sabella v. Wisler (1963) 59 Cal. 2d 21, 27 Cal. Rptr. 689; Garvey v. State Farm Fire & Cas. Ins. Co. (1989) 48 Cal. 3d 395, 257 Cal. Rptr. 292; Palub v. Hartford Underwriters Ins. Co. (2001) 92 Cal. App. 4th 645, 112 Cal. Rptr. 2d 270.

  1. Genuine Dispute Doctrine versus the Manufactured Dispute Argument

I was talking shop with an expert recently when he made an interesting comment.

“You know,” he said, “I’ve noticed that in the past couple of years, the carriers are putting a lot more pressure on experts to reach a certain result in their reports.”

“Genuine dispute doctrine,” I said.

“Excuse me?” he replied.

The genuine dispute doctrine springs from a series of decisions that originated in the Ninth Circuit and then spread to the California Court of Appeal. Put simply, the doctrine says that where a carrier relies in good faith on expert opinion in reaching a claims decision it cannot be held liable for bad faith.

In my opinion, the doctrine is leading to a steady corruption of the claims process. Sometimes jurists agree with me. Sometimes they don’t.

The best discussion of what is not covered by genuine dispute is found in Amadeo v. Principal Mut. Life Ins. Co. (9th Cir. 2002) 290 F.3d 1152. Also see, Hubka v. The Paul Revere Life Ins. Co. (S.D.Cal. 2002) 215 F.Supp.2d 1089.

However, when analyzing a potential bad faith claim, genuine dispute must be considered at the outset and measures taken so that when the inevitable summary adjudication motion on bad faith and punitive damages arise, claims handling misconduct (including expert misconduct) is readily apparent from the evidence.

Read Chateau Chamberay Homeowners Ass’n v. Associated International Ins. Co. (2001) 90 Cal.App.4th 335, 108 Cal.Rptr.2d 776.

VII. Advice of Counsel as a Defense is Only as Good as the  Advice of Counsel

Carriers will also attempt to insulate themselves from bad faith a punitive damages by utilizing attorneys during the claims process and then raising advice of counsel as a defense to bad faith. See, State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 279 Cal.Rptr. 116.

To rely on the advice of counsel as a defense, a carrier must (1) act in good faith reliance upon the advice of counsel, (2) not be so knowledgeable at to the legal standard as to know the advice was erroneous, (3) have made a full disclosure of all relevant facts to counsel, and (4) be willing to reconsider and act accordingly when shown its counsel’s advice was erroneous.

There are various responses to the advice of counsel defense, such as that the insurer did not rely on the advice or the advice was patently unsound.

However, this is a tricky area. If it pops up in a case of yours, do the research and consult with experienced counsel.

Come to think of it, that’s good advice all around.

VIII. Punitive Damages after Campbell

Last year, the U.S. Supreme Court announced that due process acts as a limit on punitive damages in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. ___ (2003). The California Court of Appeal quickly followed up by finding that, in a duty to defend scenario, the upward limit seems to be a multiple of four times special damages. Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal.App.4th 1020, 135 Cal.Rptr.2d 736.

Defense counsel will privately observe that they are already seeing their corporate clients making business decisions based on the economics of a four time multiple punitive damage potential. The notion is, since the consequence can be measured, some tortious conduct can be profitable using a strict cost-benefit analysis.

Trusting to human nature (as did our founding fathers) I believe that ultimately, human greed will trigger some horrendous event that will convince even the conservative minds at the high court that some  unpredictability in civil punitive awards is a good thing in a free society.

Soapboxes aside, the reality is that some bad faith actions that were economically viable prior to Campbell are no longer worth pursuing on a contingent fee basis. Analyze your case accordingly.

What you once handled as a contingent matter may now only make sense on an hourly retainer.

  1. Ten Do’s and Don’ts For Making A Claim.

All the law of bad faith is well and fine, but if the underlying claim is mishandled by the insured, no amount of skillful lawyering can cure the damage.

As with anything else, there is no fixed formula for handling an insurance claim. Even so, over the years I’ve developed a short list of do’s and don’ts that are basis for every claim. Download a copy and feel free to share it with your clients:

  1. Conclusion

Catastrophic losses mean real human catastrophe. When a potential client approaches you with their insurance problem, always keep the import of their loss in mind as you work through their case.

Defense counsel will tell you that never in recent history has insurance law so favored insurance companies.

So be a vigilant, educated advocate. You are on the right side of the fight and you will prevail, so long as you pick the right case and pay attention to the road signs through the insurance maze.

 

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.