Personal Injury Case Law

An Attorney’s Role in Ensuring a Personal Injury Verdict Is Not Unfairly Reduced

January 17, 2017 | Lebowitz & Mzhen

Last month, an appellate court in Connecticut issued a written opinion in a car accident case showing how a plaintiff’s award after a favorable personal injury case can be reduced – sometimes unfairly. In the case, Marciano v. Jimenez, the court ultimately determined that the plaintiff’s award should not be reduced due to the right of subrogation, which may result in the insurance company seeking payment from the plaintiff for previously paid benefits.

The Right of Subrogation

After an accident, medical costs are usually incurred. Often, an insurance company, or some other “collateral source,” will pay for these costs. Later, if the injured party seeks compensation for their injuries through a personal injury lawsuit and is successful, they will receive compensation for these very same injuries.

Some of that compensation may be designated for the pain and suffering caused as a result of the accident, but other amounts will likely be awarded to reimburse the injured party for the cost of the medical treatment they needed following the accident. If a collateral source paid these medical bills, that party may seek reimbursement from the injured party. This is called subrogation. A recent case serves as a good example.

Court Discusses Burden-Shifting Framework for Determining When Late-Filed Claims Against Public Entities Should Be Permitted

January 10, 2017 | Lebowitz & Mzhen

All personal injury cases must be filed within a certain amount of time. However, plaintiffs filing certain cases against a public or government entity must also provide notice to the defendant within a much shorter amount of time in order to preserve their right to compensation. In a recent case in front of a state appellate court, the burden-shifting framework of establishing “substantial prejudice” is discussed in the context of whether a plaintiff should be permitted to proceed with a case against a public defendant that was not provided timely notice of the claim.

Newcomb v. Middle Country School District

Newcomb, a 16-year-old boy, was struck by a hit-and-run motorist as he was attempting to cross the street near a school. The driver was later arrested. Immediately after the accident, Newcomb’s family notified the school. The family also sent an investigator to the scene of the accident to take pictures. A month later, Newcomb asked the police department for the file it had created throughout the investigation of the accident. However, since the case was still open, Newcomb was unable to obtain the file until five months had passed.

Plaintiff’s Pre-Trial Destruction of Evidence in Product Liability Case Does Not Result in Sanctions

January 3, 2017 | Lebowitz & Mzhen

Earlier this month, a Georgia appellate court issued a written opinion in a product liability case brought by the wife of a man who died when one of the tires on his Ford Explorer blew out on the highway. In the case, Cooper Rubber & Tire v. Koch, the court had to determine if the plaintiff’s destruction of potentially relevant physical evidence before trial should result in her being prohibited from admitting the blown-out tire into evidence. Ultimately, the court determined that at the time the plaintiff destroyed the evidence, litigation was not foreseeable, and thus a duty to preserve the evidence did not exist.

The Facts of the Case

Mr. Koch was involved in an accident while driving on Interstate 16 after one of his tires blew out. While Mr. Koch was hospitalized and in intensive care, the towing company that removed his totaled vehicle from the scene of the accident told his wife that they were incurring a daily storage fee for the vehicle. Mrs. Koch told her husband of the offer, and the two agreed to sign the title over to the towing company to satisfy her debt. Mr. Koch told his wife to make sure that the towing company “saves the tires.” However, the towing company only saved the blown out tire and discarded the three other tires, all four wheels, and the rest of the vehicle.

A few months later, Mr. Koch died while still in the hospital. Shortly after her husband’s death, Mrs. Koch filed a wrongful death lawsuit against Cooper Rubber & Tire, the manufacturer of the blown-out tire.

How Design Immunity May Prevent an Accident Victim’s Lawsuit Against a Government Entity

December 23, 2016 | Lebowitz & Mzhen

There are almost an infinite number of causes of traffic accidents. While many accidents are caused by the negligence of one or more motorists, sometimes the way a road or intersection is designed is so dangerous that the government can be at fault for the dangerous design. However, in some cases, government entities are entitled to immunity from these lawsuits if the government followed certain procedures in designing and building the roadway. If a government is entitled to design immunity, a plaintiff’s lawsuit will be dismissed. A recent case illustrates how design immunity may be applied by a court.

Gonzales v. City of Atwater: The Facts

In 2010, Gonzales was struck and killed by a vehicle in an Atwater intersection as he was crossing the road. Gonzales’ family filed a personal injury lawsuit against both the City of Atwater as well as against the driver of the vehicle that struck Gonzales.

Throughout the trial, the city argued that it should be dismissed from the lawsuit because it was entitled to design immunity. Specifically, the city argued that it had relied on a study that was commissioned back in 2001 on how to make the intersection safer. The study came back with several suggestions, which the city implemented. Notwithstanding the city’s arguments, the trial court denied the city’s motions seeking dismissal. At the conclusion of the trial, the jury determined that the other driver was not at fault for the accident and that the City of Atwater was liable. The plaintiffs were awarded $3.2 million.

Plaintiffs’ Failure to Object to Potentially Inconsistent Damages Award Prevents Appellate Review

December 16, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Alaska issued an opinion in a car accident case brought by the driver and passengers of one vehicle against the at-fault driver of another vehicle. In the case, Small v. Sayre, the court imposed a strict but consistently applied rule of appellate procedure that prevents an appellate court from reviewing issues to which no party objected during trial. Thus, as a result of the court’s most recent opinion, the plaintiffs will not be permitted to proceed with their appeal, and they will be stuck with the award.

The Facts of the Case

The Smalls and their young daughter were idling at a traffic light when they were rear-ended by the defendant. After the accident, each of the Smalls suffered various medical conditions they attributed to the accident. Notably, Mrs. Small was told that she would need surgery for her herniated disc, but she had not yet had the surgery performed due to the cost. About a year and a half after the accident, the Smalls filed a personal injury lawsuit against the defendant.

At trial, the defendant conceded that he was negligent in the operation of his vehicle but contested causation. Essentially, the defendant admitted that he was at fault for the collision but argued that his negligence – and the subsequent accident – was not the cause of the plaintiffs’ medical conditions.

Court Allows Plaintiff’s Bad-Faith Claim Against Insurance Company to Proceed

December 2, 2016 | Lebowitz & Mzhen

Earlier this month, a federal appellate court issued a written opinion in a case brought by a woman who was denied insurance coverage under her own underinsured motorist policy after she was seriously injured in a drunk driving accident. In the case, Peden v. State Farm, the court concluded that since the insurance company failed to conduct a thorough investigation prior to denying the plaintiff’s claim, the company may have acted in bad faith. As a result, the court reversed the lower court’s decision to dismiss the plaintiff’s case and permitted her to proceed toward trial against the insurance company.

The Facts of the Case

Peden was injured in a drunk driving accident as a passenger in a friend’s van. On the day in question, Peden was at a birthday celebration for a friend who had just received a van from her fiancée, Mr. Graf, as a gift. At some point in the evening, several friends piled into the van so that Graf could take a picture. However, Graf unexpectedly got into the driver’s seat and took the van for a joyride while he was intoxicated. Graf crashed the van, injuring Peden, who then filed a personal injury lawsuit against him.

Both Peden and Graf were covered by a State Farm insurance policy. Initially, State Farm settled Peden’s claim involving Graf’s policy, but Peden claimed her damages were not fully covered and filed a claim under her own policy’s underinsured motorist provision. State Farm denied the claim, explaining that Peden got into the vehicle with a driver she knew to be drunk, and therefore she assumed the risk of injury.

Court Discusses Employer Liability in Employee Car Accident Case

October 12, 2016 | Lebowitz & Mzhen

Earlier this month, a New York appellate court issued a written opinion in an interesting case discussing when an employer may be held liable for the negligent actions of an employee. In the case, Fountain v. Karim, the court determined that the lower court failed to make a necessary factual determination and sent the case back to the lower court to conduct further analysis. The question the lower court must answer is whether the employer had given the employee express permission to use the car that was involved in the accident.

The Facts

Karim was a government employee temporarily assigned to an office several hours away from his home. Karim would stay in a government-provided hotel room during the week and would travel home for the weekend. During the week, Karim was allowed to use a government vehicle for his work-related travels, a Ford Explorer. However, on the weekends, Karim would normally drive his own car back home, leaving the work vehicle at the office. If Karim wanted to use the Explorer for his personal use, he would submit a request to his supervisor. Several of these requests were retroactively approved, meaning Karim did not submit a prior written request but obtained permission after he had returned the car.

On August 31, 2010, Karim was preparing to leave for a work trip to another office 100 miles away. Before he left, Karim submitted a request to take the vehicle, but he did not get a response. Karim was planning on taking the Ford Explorer to his hotel, where he would stay the night, and then take the vehicle to the remote office 100 miles away.

Respondeat Superior: Holding an Employer Liable for the Negligent Actions of an Employee

October 4, 2016 | Lebowitz & Mzhen

In many accidents, the responsible party may be working when the accident occurs. For example, a truck driver may cause an accident while en route to the delivery location. In these cases, an injured party may actually have a case against not just the at-fault party but also the employer through a legal doctrine called “respondeat superior.”

Respondeat superior is a Latin term that translates as “let the master answer.” The doctrine stands for the idea that an employer should be liable for the negligent actions of an employee if the negligence occurs when the employee is in the course of carrying out a duty that is related to his employment. It is a form of vicarious liability, under which a third party is held liable for the actions of another party. This is very important for accident victims, since it may provide an additional party that can cover the financial costs of any injuries sustained in the accident.

However, not all accidents can be attributed to the at-fault party’s employer. In order for the doctrine to apply, the employee must be an actual employee, rather than an independent contractor. Furthermore, the alleged act of negligence must have occurred while the employee was engaged in a work-related activity. This concept is explained in a recent case that was decided by a California appellate court.

Court Affirms Jury’s Defense Verdict in Low-Speed Rear-End Collision

September 20, 2016 | Lebowitz & Mzhen

Earlier this week, a state appellate court issued a written opinion in an auto accident case, affirming a jury verdict in favor of the defense. In the case, Marshall v. Peter, the jury determined that the defendant was not negligent when he ran into the back end of the plaintiff’s vehicle as both drivers were stopped at an intersection. The appellate court determined that reasonable jurors could have found that the defendant’s conduct was not negligent, and therefore it affirmed the verdict below.

The Facts of the Case

Marshall was stopped in first position at an intersection, waiting for a green signal. When the signal changed to green, she started to proceed into the intersection with the defendant behind her. The defendant had removed his foot off the brake pedal, but he had not yet depressed the gas pedal when he noticed that Marshall’s car had stopped. He tried to brake but slid on the ice and collided with the rear end of Marshall’s vehicle.

Marshall filed a personal injury lawsuit against the other driver, claiming he was negligent in causing the collision. Marshall was seeking over $200,000 in economic and non-economic damages. The case was submitted to a jury, and it was decided the driver was not negligent. In a post-trial motion, Marshall asked the judge to override the jury’s verdict because “no reasonable juror” could have found that the defendant was not negligent.

Court Affirms Decision Denying Damages to a Woman Involved in a Motor Vehicle Accident

September 13, 2016 | Lebowitz & Mzhen

A state appellate court recently affirmed a jury’s decision to award no damages to a woman and her husband after they sued another driver for causing a motor vehicle accident. The driver of the other car admitted that he was at fault in the accident but denied that the woman was injured in the crash. The jury and the appeals court agreed with the defendant.

The accident occurred when the defendant swerved around a bus at a slow speed and sideswiped the woman’s car. The woman was alone in her car and wearing her seatbelt, and her body did not hit the dashboard, doors, or any other component inside the car. The airbags in the car did not deploy, and she did not request immediate medical attention. She drove herself home from the site of the accident.

The woman sued for injuries she claimed to have suffered to her back and neck. As a result of these injuries, she sought compensation for pain and suffering, as well as for future medical care, medications, and an inability to perform certain household chores and activities. In total, she requested compensation of between one and two million dollars. Her husband also sued the defendant for $275,000 for a loss of companionship, both past and present, due to the couple’s alleged inability to play golf, take walks, and engage in other forms of joint physical activity.