Category: Sports Injuries

A helmet keeps your head safer. Brain Injury Awareness month

woman who fell off bike
Wear a bike helmet!

Helmet fact: Did you know that once someone has a concussion, they are at higher risk for more concussions or other types of traumatic brain injury?  Be smart. Keep helmets on your kids, wear one yourself on a bicycle, while skating or riding a motorcycle.

In 2014, 242,931 children ages 19 and under were seen in emergency rooms for injuries related to riding bikes.  (Source:  Safe Kids Worldwide.)

Bicycle helmets offer bicyclists the best protection from head injuries resulting from bicycle crashes, and bicycle helmet laws have proved effective in increasing bicycle helmet use.

Motorcycle helmets provide the best protection from head injury for motorcyclists involved in traffic crashes.  Statistics tell us that helmets are 37 percent more effective in preventing motorcycle deaths and 67 percent more effective in preventing braining injuries.  (Source:  US Department of Transportation Fatality Reporting System.)

“Since anyone can sustain a brain injury at any time, it is important for everyone to have access to comprehensive rehabilitation and ongoing disease management,” Dr. Brent Masel, National Medical Director of the Brain Injury Association of America said. If patients with TBI get proper medical care, they are less likely to experience medical problems, permanent disability, job loss, homelessness, suicide and even involvement with the criminal or juvenile justice system. ”

Protect your brain! It’s the only one you’ll ever have!  Learn more.

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 Lawsuits Can Help Solve Problems

One of the great things about living in America, is we have something called “the rule of law.”

So, just what is that?

Well, in the U.S., instead of having a king sitting on a throne, we believe “the law is king.” That means that we believe we are ruled by laws, not other men and women. “The rule of law.” It’s precious stuff, friends.

So, what does any of that have to do with lawsuits.

Well, it turns out, that people just living their daily lives, are going to have problems that come up in dealing with other people.

There’s two ways to solve problems having to do with money, property or your person, what we call “civil” problems.

One is something called “self help.” In other words, if your neighbor built a high fence and you don’t like it, self help is taking a saw and cutting it down without permission.

Only we learned a long time ago that self help causes all kinds of problems. If you don’t believe me, try cutting down your neighbor’s fence and report back to me what happens. No, just kidding. Don’t do that. Self-help isn’t really all that helpful.

The other way to solve civil problems is something called a civil justice system.

When someone wants to solve a problem using the civil justice system, they file papers asking for some kind of relief. That’s basically what a lawsuit is. Pretty simple, huh?

Now, there is plenty of debate these days about whether there are too many lawsuits, or too few, and all that kind of stuff that I know you hear about all the time.

But, the truth is, when you have a civil problem, it become real important to you that someone can help you solve that problem in the fairest, least expensive and quickest way.

Now, I’m not here to give you legal advice and there are differences in how courts work in each state and in the federal system. Still, spend a little time with me and I think I can tell you some things that you didn’t know before and, hopefully, will help you with whatever problem you need to fix.

 

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.

 

Concussion symptoms can persist in children a year after injury

Each year about half of a million children suffer mild brain injuries. A new report says that, when a child has a head injury, there may be more damage than we initially suspect.

“The majority of kids in the study were injured in sports or recreational activities,” said Keith O. Yeates, PhD, director of Behavioral Health Services at Nationwide Children’s Hospital and one of the study authors. FoxNews.com. “A small number were injured in motor vehicle accidents, but most were sports-related or falls.  Not all mild traumatic brain injuries are alike. It’s important to assess risk factors for symptoms that persist.”

Young people with mild traumatic brain injury (TBI) are at heightened risk of developing postconcussive symptoms, including cognitive symptoms such as inattention and forgetfulness, report researchers.

Mild TBIs are common in children and adolescents, and every year more than 500,000 young people under the age of 15 sustain head injuries that require hospital care.

Health providers need to be able to identify children with mild TBI who are at risk for persistent postconcussive symptoms so that they can target such children for appropriate management.

The prospective, longitudinal study was published online March 5, 2012 in Archives of Pediatrics and Adolescent Medicine.

Spread the word. 

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.

 

Leading cause of death from sports-related injuries is traumatic brain injury

The American Association of Neurological Surgeons the leading cause of death from sports-related injuries is traumatic brain injury.  The AANS says a total of 446,788 Americans went to hospital emergency rooms in 2009 with sports-caused head injuries

They go on to report these numbers by the top 20 sports/recreational activities contributing to the highest number of estimated head injuries treated in U.S. hospital emergency rooms:

Cycling: 85,389

Football: 46,948

Baseball and Softball: 38,394

Basketball: 34,692

Water Sports (Diving, Scuba Diving, Surfing, Swimming, Water Polo, Water Skiing, Water Tubing): 28,716

Powered Recreational Vehicles (ATVs, Dune Buggies, Go-Carts, Mini bikes, Off-road): 26,606

Soccer: 24,184

Skateboards/Scooters: 23,114

Fitness/Exercise/Health Club: 18,012

Winter Sports (Skiing, Sledding, Snowboarding, Snowmobiling): 16,948

Horseback Riding: 14,466

Gymnastics/Dance/Cheerleading: 10,223

Golf: 10,035

Hockey: 8,145

Other Ball Sports and Balls, Unspecified: 6,883

Trampolines: 5,919

Rugby/Lacrosse: 5,794

Roller and Inline Skating: 3,320

Ice Skating: 4,608

The top 10 sports-related head-injury categories among children ages 14 and younger:

Cycling: 40,272

Football: 21,878

Baseball and Softball: 18,246

Basketball: 14,952

Skateboards/Scooters: 14,783

Water Sports: 12,843

Soccer: 8,392

Powered Recreational Vehicles: 6,818

Winter Sports: 6,750

Trampolines: 5,025

These numbers are frightening. Protect your brain. It’s the only one you have.

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.

Searching for a Higher Duty When an Insurer Refuses to Admit its own Mistakes

Searching for a Higher Duty When an Insurer Refuses to Admit its own Mistakes  

  1. Why won’t they just “do the right thing?”

People make mistakes. It’s part of being human.

Even so, over and over we see cases where an insurance carrier or its designated agent makes an error and then stubbornly denies responsibility. The carriers/agents just won’t “do the right thing” in industry parlance.

The result is always the same. Innocent insureds are left to fend for themselves. The carrier and agents defend based on the notion that they owe “no duty” to have prevented or to right the particular wrong. A struggle ensues.

Bad faith law may be insufficient to address the situation, especially if the mistake has to do with a faulty insurance application or a failure to provide adequate limits or coverages. Breach of the implied covenant of good faith and fair dealing generally requires a breach of the insurance contract and the policy declarations or coverages are often exactly what the agents/carrier mistakenly put into place.

Catch 22, anyone?

The solution is to think outside of the box just a little bit and examine what is really going on in the insured/agent/insurer relationship, because the nature and extent of the relationship will ultimately define where the duty truly lies. Fortunately, this area is one of the few in insurance law that has grown more sympathetic to insureds during the past decade.

  1. Defining Different Levels of Duty.

The typical agent/carrier mistake problem requires analyzing duty at multiple levels. The duties can involve a fiduciary duty under certain circumstances, a duty to perform reasonably or a duty created by an oral or written contract.

The duties themselves will define the remedies available to the insured in the event of a breach so the level of duty involved becomes critical in prosecuting a claim.

Breach of fiduciary duty is the most interesting, both because it has recently been affirmed as available under certain circumstances (Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202, 128 Cal.Rptr.2d 728) and because it presents a potential for obtaining punitive damages.

Negligent breach of a duty to perform resulting in damages is also important, but will generally only become available where the agent or insurer have acted in such a fashion where they can be seen to have adopted a special duty towards the insured. See e.g., Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 59 Cal.Rptr.2d 547; Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 55 Cal.Rptr.2d 276; Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726, 11 Cal.Rptr.2d 296. Under this theory, both agent and insurer may be liable for the agent’s negligence in misrepresenting policy terms or the extent of coverage provided. In addition, the measure of available damages may, in the right case, include attorneys fees and costs. Saunders v. Cariss (1990) 224 Cal.App.3d 905, 274 Cal.Rptr. 186.

Finally, where there is an oral or written agreement to provide a certain level of insurance protection, there is the potential for a breach of contract to provide insurance. The damages available would be the same as for any contractual breach.

Read more on this topic on my website, including:

  1. The Fiduciary Duty as applied to a Carrier. A significant duty in the proper case.
  2. Finding a Duty of Care.
  3. Finding a Contractual Duty.

Insureds sometimes need to rely on the expertise of agents and carriers to obtain the correct coverages and limits that will best protect them. When agents and carriers act as insurance experts but drop the ball, they should do the right thing. When they won’t, it’s up to the consumer lawyer to set things right.

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.

Discovery and Depositions in the Bad Faith Case: What You Need to Know

Discovery and Depositions in the Bad Faith Case: What You Need to Know  

     Introduction

Insurance bad-faith cases are usually hard fought and can be bitter.

Generally speaking, when we take on a carrier for acting contrary to its insured’s interests and allege those actions are malicious justifying punitive damages, the folks on the defense side tend to take it personally.

So, the first rule of discovery in the bad faith case is, assume you are in for a tough fight. Which, in turn, leads to the second and third rules: know your adversary and be prepared.

The bad news that the general practitioner faces in prosecuting a bad faith case is that the defense team will usually be much better schooled in the fine points of insurance than an attorney who does not work with insurance matters on a daily basis.

The good news that the general practitioner can take heart from is B the purpose of bad faith law is to act as an equalizer between the powerful carriers who adjust claims for a living and the ordinary insured who probably never wanted to have a claim and, with luck, will never have another. Insurance regulations require that insurance companies keep a record of all material claims decisions. So, where there is wrongdoing, there is almost always a record of the bad acts waiting to be uncovered.

The key discovery strategy in defending bad faith cases is to deny the plaintiff information. However, if you know where and how to dig, it’s not that difficult to get the evidence you need to put on your successful case.

   Know your adversary

People spend their lives learning about the insurance business, which itself represents a huge, multifaceted, globally diverse industry devoted to making money by spreading risk. Generally, you do not have a lifetime to learn each and every nuance of the insurance world. So, don’t try. But do make sure you know everything you can about the facts and circumstances of the insurance business as it applies to your case.

Understand that the defendant or defendants in your prospective case may not be obvious from the face of the insurance materials your clients hand you. For example, it is not unusual to have a client provide letters on letterhead from the “Farmers Insurance Group of Companies.” Some practitioners will put this name in their complaint. Only, there is no such creature that can be sued. “Farmers Insurance Group of Companies” is simply the trade name for a collective of entities organized as inter-insurance exchanges. Usually, the proper defendants in a Farmers claims case are Farmers Group, Inc. (the management company), Farmers Insurance Exchange (the claims handling entity) and the insuring exchange (ie., Fire Insurance Exchange, Truck Insurance Exchange, etc.). See, Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202 (rev. den. Mar. 26, 2003).

So, when laying out your case, always make sure you closely review the original insurance policy and declarations pages prior to determining who to name in your complaint. When in doubt, consult with experienced practitioners about who the proper parties are and why. Getting the defendants right at the beginning can save tremendous amounts of time during the case.

Also, make sure you understand who has standing to sue under the insurance policy. A business owner may not be able to sue for bad faith if the named insured is a corporation or limited liability company. On the other hand, the owner may have standing as an additional insured. The question is important where there is a potential for emotional distress and other general damage to the owner. Again, look to the policy and declarations pages for the answer.

 Getting to the Heart of Your Case in 60 days or less.

Once you have the parties clear in your mind and have filed suit, you can prepare your initial round of discovery for service once the defendants answer or, as is more typical, demur.

I seldom use interrogatories during my initial bad faith discovery. I find it is much more productive to immediately demand the claim file(s) and, if warranted, the underwriting file(s), since these are the basic documents necessary for preparing any bad faith case for trial.

Because these files are key evidence in the case, and in order to discourage potential mischief in discovery, I ask for the documents in multiple requests, simultaneously, using a formal request for production of documents, along with a custodian of records deposition notice and notice of deposition of the person most qualified. By utilizing this process, I find I am able to exert maximum pressure on the defense to produce the entire record all at once. This process also insures that I will be able to either establish foundation for the insurance files either by direct testimony or stipulation, so that they are admissible later in the case. Do not assume that a claim file or any other document will be admitted at trial under the business records exception to the hearsay rule. Nail down the foundation as you go, it will save much grief later on.

It is also important to make sure that the original files are available during any depositions. Copies of files don’t do the originals justice B often information about file handling can be gleaned from handwriting on the file folders themselves or how the files are organized. It is much easier for insurance adjusters and other key witnesses to evade answering key questions if the original files are not in front of them. Copies of file materials are okay as part of a document production and, in fact, are easier to handle as you organize your case. But make sure you request to see the originals and insist they be produced.

Person most qualified depositions under Code of Civil Procedure section 2025.220 are the fastest way to gain general information about the basic handling of the claim or other insurance matter that lies at the heart of your case. I typically notice the person most qualified to testify regarding the identities of each and every individual who performed work or made a decision in the matter. Generally, the witness will be the primary claims adjuster, which is fine. However, the PMQ deposition helps avoid wasting time meeting and conferring over boilerplate objections and incomplete responses typical when interrogatories are served.

Also, try to determine whether or not the defense will be allowing on advice of counsel as a defense by serving a simple Request for Admission that is on point. Carriers generally do not like using the defense since it opens up areas that would otherwise be privileged. But don’t assume it won’t be used. Ask up front.

I have number of sample deposition notices, discovery requests and requests for admissions that are regularly requested from me. If you’re interested, click here for the set. Please note, the forms I provide use the old Code of Civil Procedure sections, so you should update them before using them in your case

 Focusing Depositions

Once I know who was involved with the claim or other insurance matter I am concerned with, I typically depose everyone who touched the file in any way. Even if the deposition lasts only fifteen minutes, absent a stipulation, getting the testimony is the only way to insure that all the potential holes in your cases are filled.

I prefer to video all key depositions, particularly the adjusters and claims personnel. The best insurance bad faith cases are generally morality plays where the attitude and demeanor of the witnesses are just as important as their precise testimony. A picture, as the saying goes, is often worth a thousand words.

When deposing insurance professionals, I almost always begin by getting them to agree with me as to basic principles such as an insurance carrier must give its insured’s interests equal weight with its own,” an insurer is obligated to conduct a thorough, fair and objective investigation into the facts of a claim,” etc. Once I establish the common framework of duty, I use those basic principles to tie down the witness while going through the claim.

Lists of duties and obligations can be gleaned from the case law, jury instructions and your experts. Make one up that works for your case and use it from day one.

In deposing witnesses, utilize the insurance files you obtained at the beginning of the case as both a guide to questioning and evidentiary support for your case. Adjusters will have diary notes, these should be analyzed and authenticated by the witness. If it is unclear just what notes or materials were created by the witness, don’t be afraid to ask. Unraveling how a claim was handled is often like piecing together an intricate puzzle. Be thorough with each witness and you will not need to fear missing pieces when your discovery is concluded.

Also, just as in any case, don’t be afraid to lead adverse witnesses as allowed by Evidence Code section 776. Leading questions are the best way to focus an adverse witness, especially one that might be inclined to waste your time with irrelevant insurance technicalities and side issues.

   Conclusion

There’s no magic to conducting bad faith discovery. Just preparation, study and hard work.

While the basics outlined in this article should help you get going, don’t forget that there is a strong community of insurance bad faith practitioners available who can help answer particular questions or give guidance on technical issues.

In my mind, there is no nobler endeavor than fighting for deserving individuals who have been legitimately wronged by powerful institutions. Hopefully, you are of the same mind. So, go get ’em!

 

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.

Five Fatal Bad-Faith Mistakes and How to Avoid Them

Five Fatal Bad Faith Mistakes and How to Avoid Them

Breach of the implied covenant of good faith and fair dealing in an insurance contract, or “bad faith” in the vernacular, is a tricky critter.

Ten years ago, bad faith was a staple for consumer lawyers; today, some will tell you it’s a dying area of the law. Don’t believe the doomsayers. While there is no question that bad faith litigation is not a practice area for the faint of heart, bad faith law remains a powerful tool to obtain justice for consumers.

With all that in mind, this is not an area for the unprepared. Here are five fatal mistakes you should take care to avoid:

  1. Not looking for the “mean” in your case.

“The mark of a good bad-faith case is meanness,” one of my mentors once told me. He believed that for a bad faith case to fly, there had to be conduct beyond something irritating or just maddening.

What you need to look for is conduct that is mean, insensitive or unfeeling. If you’re just uneasy or have some vague notion the world should be different, be sympathetic, but take a careful look at the law before diving in.

 

  1. Forgetting to make sure there’s coverage.

No policy, no bad faith is the simple rule. Though there are areas where the simple rule won’t apply, that doesn’t mean you shouldn’t pay coverage close heed right from the get go.

The lesson here is, never take coverage for granted. Make sure you understand the carrier’s reasoning for doing what it did in every intimate detail. Study the correspondence, collect the key cases, gather whatever articles you can find on point. Also, bone up on the genuine dispute doctrine whenever coverage is in dispute. See, e.g., Chateau Chamberay Homeowners Ass’n v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 335.

  1. Not gathering all the facts during your investigation.

There’s a temptation to seize on one or two key documents or bits of evidence that seem to show outrageous conduct and try to ride those through to the end, ignoring everything else. Resist that temptation.

The insurance regulations require carriers to keep records on everything material that takes place during a claim. Get copies of all that stuff and make sure the defense brings the originals to deposition so you can do your own inspection. If there’s an underwriting issue, get all those files as well.

Make sure your client gives you every scrap of paper connected with the claim, whether they think it is relevant or not. If the client is a poor record keeper, worry about that. It is amazing how a small, stray piece of documentation can rise up and bite you in a bad faith case.

A little paranoia is probably a good thing here. Remember, the law right now is probably as favorable for carriers as it’s been in several generations. Conduct yourself accordingly.

  1. Not preparing for trial.

Don’t work up the case for settlement or to win on summary judgment. Prepare the darned thing for trial. Anticipate the worst and then if something better happens, celebrate. Only, do not ever under-prepare a bad faith case.

Remember what insurance companies do for a living. They sell promises on paper, pay some claims, deny the rest and defend their decision-making process to the death. You may have a great bad faith case in your file cabinet, but if you aren’t experienced in the area, beware, because the folks defending will be.

So, put in the time and gather the knowledge. Then put everything together as if you will go to trial.

  1. Not facing reality.

There’s a difference between being a believer and being a fool. Believers understand their cases, warts and all, but know in their hearts they can steer the client through the system and get justice. Fools don’t understand what they have in their file cabinet, but bull ahead anyway.

As you litigate, make sure you constantly study, analyze and evaluate.

Go get’em.

When you choose to litigate against a carrier, go in smart. Consult an experienced practitioner where you have questions. Remember to avoid the five common mistakes and, good hunting!

 

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.

Preventable medical error may cost US $1.32 trillion per year

The Journal of Patient Safety reports in its September 2013 issue that premature deaths associated with preventable harm to patients is now estimated at around 440,000 per year.1  Serious harm, the journal reports, “seems to be 10 to 20 fold more common than lethal harm.”

So, let’s talk in terms Americans understand: Dollars.

Using a formula published in the Journal of Health Care Finance, death due to preventable medical errors has an economic impact averaging $75,000 to $100,000 per year for an average of ten years ($750,000-$1million).2

Using that measure, preventable medical error deaths now cost the US economy between $330-440 billion per year.

To give some perspective, Stephen Friedman, a senior White House official, left government in 2002 after irking his colleagues by publicly estimating that the Iraq war could end up costing up to $200 billion, total.3

The term “serious harm” is not defined in the Journal of Patient Safety article. But in a bulletin published by one state’s medicaid administrator, serious preventable events include such things as (1) surgery performed on the wrong body part; (2) surgery performed on the wrong patient; (3) wrong surgical procedure performed on a patient; (4) unintended retention of a foreign object in a patient after surgery or other procedure; (5) patient death or serious disability directly attributable to an intravascular air embolism that occurs while being cared for in a health care facility; (6) patient death or serious disability directly attributable to a hemolytic reaction due to the administration of ABO/HLA-incompatible blood or blood products; (7) hospital-acquired pressure ulcers (decubitus ulcers) – stage 3 and 4; (8) hospital-acquired catheter associated urinary tract infections; (9) hospital-acquired vascular catheter – associated infection; (10) hospital-acquired mediastinitis after coronary artery bypass surgery; (11) falls and trauma (hospital acquired) – fractures, dislocations, intracranial injuries, crushing injuries.4

If serious harm events occur 10 to 20 times more frequently than deaths and are valued at one-tenth as much for economic impact, then the annual economic cost from preventable medical error causing serious harm is $330-860 billion.

Using that measure, we are looking at an annual cost to the US economy from deaths and serious harm caused by preventable medical error of $660 billion to $1.32 trillion per year, or 3-8% of the estimated US 2013 GDP.

Again, for perspective, the total annual cost of US healthcare in 2011 was $2.7 trillion or 17.9% of GDP.5

1  A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care, J. Patient Saf., vol. 9, no. 3, September 2013.

2 The Economics of Health Care Quality and Medical Errors, J. Health Care Finance, 2012 Fall; 39(1):39-50, Andel, Davidow, Hollander, Moreno.

3  Washington Post, Iraq, Afghan wars will cost $4 trillion to $6 trillion, Harvard study says (Mar. 28, 2013).

4  Guidance Regarding Serious Preventable Events – approved May 2008, https://www.bcbsal.org/providers/adverseEvents/AlaHAGuidelines.pdf

5 National Health Expenditures 2011 Highlights, http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/downloads/highlights.pdf

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.