I have been practicing law for 28 years, and I have achieved over $35,000,000.00 in jury verdicts in injury and wrongful death cases for my clients, and quite a bit more than that in pretrial settlements. Let me give you an overview of what I look for in these cases.
When I interview an accident client for the first time, I typically ask questions and look for six things: (1) facts concerning the potential liability of the other driver; (2) facts concerning the potential liability of the injured client; (3) damages to the injured client; (4) insurance coverage matters; and (5) the legal effect of any aggravating circumstances that might exist, like drunk driving or a hit-and-run.
1) Liability Facts
An auto accident case typically starts by looking for a violation of one or more rules of the road. Back when we first learned to drive, we were given a DMV Drivers’ Handbook that we studied that informed us of the basic rules of the road. A violation of those rules may lead to a traffic ticket, or worse. For example, a drunk driver may end up spending time in jail.
In a personal injury case brought in the California Superior Court, the rules of the road found in the DMV Drivers Handbook also describe, in layman’s terms, the basic rules that are also found in California’s Vehicle Code. A violation of one of the rules of the road can and often does result in civil liability for the driver who breaks the rules, especially if breaking the rules leads to injuries to another human being. Most automobile, bicycle, truck and motorcycle accidents lead to a citation, and that citation usually cites to a violation of one or more provisions of the California Vehicle Code.
The citation may cite the wrong person – and we have had cases where we obtained significant compensation for an injured client where we were able to prove that the reporting officer simply got it wrong. They cited the wrong party and blamed the wrong party for the accident. However, in most cases our experience is that the police officer, deputy or CHP officer, tend to cite the correct party at fault.
To evaluate the case for civil liability, or fault of the other driver, I try to gather up as much evidence as possible. Evidence includes witness statements, documents, photographs, and sometimes actual physical evidence. We will interview all of the eye-witnesses to the accident, and where appropriate, obtain a formal statement from each witness. This includes obtaining and reading the police or CHP accident report, and obtaining and reviewing any accident scene photographs. This might include driving to the accident scene and taking additional photographs, if the ones obtained by law enforcement were taken at night or were blurry or were otherwise inadequate.
The law enforcement officer may have issued a traffic citation or — for example, in a drunk driving case – he or she may have made an arrest. All of the documents relating to the traffic or criminal proceeding must also be obtained by my office in order to prepare the case. In one rear-end auto accident case I had, the rear driver’s car had literally “submarined” under the injury victim’s car and the rear driver’s car front license plate had literally wrapped around the front car’s rear axel. That bent and curved license plate was physical evidence that I used in the case against the rear driver to show the force of the impact actually caused the license plate to wrap around the car’s axel.
2) Comparative Fault Facts
This comes up in some cases, but not all cases. Sometimes the injured party may have done something to help bring about his or her own injury. I ask questions to see if there are any facts along those lines. For example, if the injured party was not wearing a seatbelt, that is a violation of California law. If the injuries included, for example, slamming one’s head against the steering wheel or the dashboard or the windshield, the other driver might very well argue to a judge or jury that the injured party helped bring about his or her own injuries by failing to wear a seat belt. Under California’s comparative fault laws, an injured party’s recovery for damages will be reduced by that percentage of fault that the judge or jury finds that the injured party should be blamed for, for bringing about his or her own injuries.
3) Damages Facts
There are three broad categories of personal injury damages allowed for under California law for the injuries, losses and harms that can be proved to be caused by the car accident: (a) economic damages; (b) non-economic damages; and (c) punitive damages.
Economic damages include such things as past medical bills and any medical bills that are reasonably likely to be incurred in the future as the result of the auto accident injuries. Economic damages include lost wages and any future loss of earnings that are reasonably likely to be incurred in the future. They include property damages and the fair rental value of the vehicle if there was a loss of use of the vehicle.
Non-economic damages includes intangible matters such as pain, suffering, anxiety, emotional distress, and in the case of married couples, the loss of comfort, companionship and the loss of enjoyment of sexual relations.
Punitive or exemplary damages are designed to punish the driver at fault and make an example out of him or her. These damages are rarely granted in an auto accident case unless there is truly outrageous or reprehensible conduct, such as drunk driving or a driver who hit-and-run and left his or her victim injured and bleeding, etc.
4) Insurance Coverage Matters
When we look at the case, we look at the adverse driver’s insurance, and we look at the accident victim’s insurance. We are experienced insurance litigators, and if an insurance company does not live up to its obligations, we often handle that case in addition to the auto accident case.
For example, the minimum liability insurance requirements for private passenger vehicles (California Insurance Code §11580.1b) are as follows:
$15,000 for injury/death to one person.
$30,000 for injury/death to more than one person.
$5,000 for damage to property
Not everyone carries insurance only for the minimum amounts required by law. Often people carry more insurance if they own a house or wish to avoid being held personally responsible for damages in excess of their auto insurance policy limits.
When looking at the victim’s insurance policies, we are looking for auto insurance medical payments coverage for medical bills, property damage coverage, and Uninsured or Underinsured motorist coverage (UM/UIM). UM/UIM coverages protect you and your passengers in the car, in the event that you are in an accident and the other party involved has no or too little insurance to cover the damage to your car, medical bills and expenses. We also look to see if you have accident, disability or life insurance (in the case of a wrongful death), as well as medical insurance, such as Kaiser or Blue Cross.
If the accident victim does not carry an auto insurance policy, California Civil Code Section 3333.4 prevents them from recovering non-economic losses for compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages.
This rule also applies if the injured person was not insured at the time of the accident as required by the Financial Responsibility Laws of the State of California, or if the injured person was driving under the influence and was convicted of that offense. Such a person, however, although uninsured, may recover such damages if at the time of the accident that person was injured by another who was convicted of driving under the influence.
5) Aggravating Circumstances
As we discussed above, punitive or exemplary damages are designed to punish the driver at fault and make an example out of him or her. These damages are rarely granted in an auto accident case unless there is truly outrageous or reprehensible conduct, such as drunk driving or a driver who hit-and-run and left his or victim injured and bleeding, etc. If these facts do exist in your case, we wish to investigate, develop and memorialize those facts in sworn witness statemens, depositions, video, photographs, and the like, as fully and as accurately as we are able.
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