Recent Blog Posts in January 2009

If you have been following this blog, you might start thinking that I do not have a high regard for other attorneys who practice in the area of personal injury in Colorado. Actually, that is not true. I think there are a number of very dedicated legal professionals working hard for their clients. However, after eighteen years of practicing law, I have certainly run into my share of lazy, unmotivated and uncaring lawyers doing their clients a disservice. Usually, I learn the most about other lawyer’s actions (or inactions) when the client fires that lawyer and brings their case to me.  Accordingly, what sticks out most in my mind are the acts of not-so-good attorneys who do a disservice to our profession and to their clients.  Accordingly, I am very comfortable sharing a great question you can ask your personal injury attorney that will reveal a lot about whose “best interest” they plan on representing.

First, here is the question that should reveal all:

Question:     “Once settlement is reached, how often do you find yourself filing actions in court to get a judicial ruling on the reasonableness of doctor or hospital charges?”

I have just given you the secret handshake which will reveal the quality and level of commitment that your lawyer has to, what should be his number-one priority, you.

As innocuous as this question might sound, the answer will tell you everything. The reason this question is so important, and the answer reveals so much, is because of the way truck and auto injury accidents have been adjudicated under Colorado law since the law changes of July, 2003.

Since July, 2003, a person in an automobile collision is completely on his own to get medical and rehabilitative treatment. Injured people with health insurance will have their care paid for through their insurance. People without health insurance are forced to go without care, or secure agreements with either doctor’s offices or medical lien companies to get their treatment provided. Whoever is advancing the payment of your healthcare, whether it is an insurance company or a doctor who is providing care on a lien; on settlement of the injury case, there will be an obligation to pay these providers. When health insurance is involved this is called a “right of subrogation.” When hospitals seek their billing being paid back it is call a “hospital lien.” When a doctor wants his treatment paid after a settlement occurs, it is called a “claimed right of interest.” The bottom line is, that once an injured person settles his/her case, it is really only the beginning of everyone’s hands coming out to get paid.

At our firm we say ”it isn’t what we settle for that is important, it is what our client gets to keep that makes a difference.”

Now, with that history, I need to explain how lawyers get paid. If the lawyer settles the auto accident claim against the at-fault party’s auto insurance, he will take his contingency fee (usually 33-40%) right off the top. If the settlement is, for example, $50,000.00, after the attorney fees are paid there will be perhaps $30,000.00 remaining to payback the doctors/hospitals or perhaps the health insurance, not to mention to compensate the accident victim. Every penny saved in negotiating with the doctors, hospitals, or insurance companies, provides more money for the injured person. However, at this stage, the motivation for some attorneys is a problem. THEY HAVE ALREADY BEEN PAID. The client benefits entirely from his lawyer being aggressive in their negotiating at this juncture.

My firm has negotiated thousands of insurance companies, doctors, and hospitals down to the lowest re-payment figures imaginable. And we have even angered some of these providers with the lengths with which we will go to get a reduction. Why? Because, we know that for our clients it is not the amount of the settlement that matters, IT IS WHAT THEY GET TO KEEP THAT IS IMPORTANT. We consider this, such an important part of our job that we will often get into heated battles with doctors, hospitals, and insurance companies as to how much they should take off of their bill. In fact, our firm has filed hundreds of actions to seek judicial review and resolution of disputes with healthcare providers or health insurance companies who would not agree to voluntarily reduce their charges. These judicial proceedings are called INTERPLEADER ACTIONS and have resulted in our clients receiving many thousands of dollars of additional money in their settlements that they otherwise would not have recovered.

To my surprise, I have learned that MANY attorneys and firms have resolved as many or nearly as many cases as our firm, and have NEVER FOUGHT with a healthcare provider or an insurance company to the point of seeking a judicial review. I started wondering why? Then it occurred to me. The reason why we fight so hard is because we remember who it is we are suppose to represent. It appears that other firms are content with not squeezing every dollar possible into the client’s hands. There is also the problem with lawyers not feeling like there is any incentive for them to get contentious with a doctor or a health insurance company, especially since the attorney has ALREADY BEEN PAID.

If your ask the above question and get the answer, “well, I have never had to take such action,” it is a fair bet that the reason that attorney has never had to seek a judicial resolution is because he does not care how much money is returned to his client nearly as much as he cares about NOT ROCKING THE BOAT or at least moving QUICKLY onto the next money-making opportunity.

If you come across an attorney like this, particularly with all the very good attorneys in Colorado, you should strongly consider not hiring that attorney.

At Anderson, Hemmat & Levine, we will answer your questions straightforward and our initial consultation is always free.

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Often a question is asked of me, “do I need to hire a lawyer?”  My usual response to the average injury case is, “no.”  A person who is prepared to research our Colorado laws, and who has the time to devote to becoming proficient in injury law, is perfectly suited to handle their own injury claim. The one exception is injuries involving death. A brief summary of Colorado wrongful death laws should explain why this complex area of law requires the assistance of specially trained legal professionals.

WHO CAN BRING THE CLAIM:

The quick answer is lineal heirs. More specifically, if a person dies, and at the time has a surviving spouse, it is that spouse who would be the lineal heir. If a person dies with no spouse, then any living child would be the proper person to sue. If there is no spouse and no children, that person’s parents would be the lineal heir. Brothers, sisters, aunts, uncles and cousins are never the lineal heirs and therefore can never bring the wrongful death lawsuit.

DEADLINE FOR SUING:

The statute of limitations is two years from the date of death. A companion action, called a “survival action,” is not going to be addressed in this blog. But understand that a separate action must be brought, if at all, by the estate, within one year of death. If a governmental entity, like an employee of the State, caused the death, separate from your lawsuit deadline, you have the obligation to properly issue governmental notice within 180 days of death. Governmental notices are an entire topic on their own and will be addressed in a future blog.

WHAT CAN YOU GET:

This is the most complex part of the whole thing. The person bringing the wrongful death claim does not get to claim damages for the pain or suffering of the dead person.  Nor is there any value awarded for the loss to society caused by the unfortunate loss of this person’s life. Instead, under Colorado law, damages in a wrongful death claim are limited to the net pecuniary (usually income) loss to the person bringing the claim, such as a spouse claiming the income loss due to the death of her husband.  Also, grief and emotional upset damages as caused to the grieving heir, and burial expenses incurred, are also allowable damages.  Valuing the loss over time, particularly such as income loss of a young husband to his young wife can make the claim monetarily huge.

DAMAGES CAPPED:

Most of the time, there are caps on the damages a person can recover in a wrongful death claim. But being creative in how a claim is brought and how the evidence is presented truly “separates the men from the boys.” In fact, depending on how the lawyer presents the case, there is a virtual minefield of possible caps. The range of caps is as small as a total award limited to $68,250. If you avoid that cap, and have the right type of case, the next possible cap on noneconomic damages (grief and emotional upset) is limited to $341,250. There is, however, a type of wrongful death case, known as a “felonious killing,” with no caps on damages whatsoever. A smart attorney will carefully, and within the bounds of the law, classify every wrongful death case into this category, if possible.

When I think about this particular area of the law, the attention to detail needed, the knowledge and careful study that it takes, the proper damages work-up required to do the job correctly, as well as the radical differences in outcome simply based on how one writes the legal suit-papers as well as how the matter proceeds through trial, there are far less than 1% of Colorado lawyers that I would trust to handle this sort of case. In considering your options, I strongly suggest anyone facing such a challenge sit down with a lawyer and take the time to understand why this is probably not something anyone should attempt to do without GOOD counsel.

At Anderson, Hemmat & Levine, we will take the time necessary to understand you and your case, and regardless of how long that might take, our initial consultation is always free.

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Representing victims injured in automobile accidents in Colorado requires staying up-to-date in an area of law that is constantly changing.

For example, effective January 1, 2009, all new and renewed auto insurance policies have mandatory $5,000.00 of medical coverage. Specifically, a person injured in a motor vehicle collision will have at their disposal $5,000.00 to cover medical and hospital charges.  From now on, it simply requires you or your lawyer to know about the law change and to request the payment from your insurance company. It is likely that the insurance company will not voluntarily send you this money, but instead, will wait to see if you ask for it.  While this medical payment coverage (known in the industry as med-pay) is something that the policyholder can waive in writing, it is likely that overwhelming numbers of Colorado drivers will have this benefit added to their policy without them even knowing it.

Second, up through the end of 2008, if an insurance company paid for medical expenses related to a collision, they would nearly always seek their money back from the auto accident victim, once the case settled with the at-fault driver. This is known as the insurance company’s right of subrogation. So, in the past, even though the insurance company might have paid some (non-mandatory) med-pay benefits, and received a premium from their insured to provide it, in actuality, it was often more like a loan.  Once the case was settled, the insurance company would expect the accident victim to pay it back.  However, effective January 1, 2009, insurance companies who advance med-pay, have lost the right to ask for it back from auto accident victims. If your attorney is aware of this law change, that means thousands of additional dollars will stay with you and not be returned to the insurance company. Obviously, if your attorney has not stayed current on the ever-changing legal landscape of this complex area of law, it will be difficult to tell what rights or benefits you might be losing.

Like many areas of the law, properly representing a client injured in a car accident requires staying current with the law. More than ever, your company’s corporate attorney or the nice man whom you hired to do your estate planning, is probably going to be out-gunned and out-maneuvered by the insurance company and their lawyers in an auto accident injury case.  To avoid making a mistake in the hiring of your lawyer, ask any attorney you are considering hiring to explain to you any updates in Colorado law pertaining to your type of case. In an auto accident case occurring in 2009, if that attorney does not mention the changes in the law identified above, you should strongly consider hiring someone else.

At Anderson, Hemmat & Levine, we will always get you in for your consultation on the same day as you call and our initial consultation is always free.

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There are at least two regularly repeated phrases which are quoted as law, but actually are not the law  anywhere.

The first is “possession is nine-tenths of the law.” There is nothing in any statute or ordinance anywhere in our country where this is a legal standard. I am continuing to research this misstatement of the law, and will report my findings as to its origin in a future blog. 

Another misstatement of the law is “pedestrians ALWAYS have the right-of-way.” This is absolutely not the correct statement of the law, not in Colorado, or anywhere else for that matter.  In fact, most of the auto/pedestrian cases our firm has taken required a substantial amount of investigation and attention in order make them winners. First, a pedestrian outside a crosswalk, never has the right-of-way. Pedestrians inside a crosswalk would have the right-of-way, but only if they properly entered the crosswalk legally on a “walk” signal. Most of the time those facts are difficult to prove. Vehicles hitting pedestrians tend to knock the pedestrian out of the crosswalk, and eye witness accounts of whether the  ”walk” or “don’t walk” signal was illuminated are often either contradictory or nonexistent.

A victim of an auto/pedestrian accident should not assume that their old divorce attorney could handle this case. These cases are difficult, they require substantial investigation, and trial know-how. Additionally, EARLY investigation is key.

At Anderson, Hemmat & Levine, we are happy to talk to you about your case and will always provide a free consultation. These cases can be hard, but when they are properly handled by a trained professional, injury victims can achieve justice.

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There are a lot of occupations that require driving as part of the job. Some of those jobs include bus drivers and truck drivers. But, other jobs involving some driving include utility workers, landscapers, architects, etc. Any job that requires an employee, for the benefit of his/her employer, to get into a vehicle and run an errand, is a potential worker’s compensation motor vehicle accident.

We find that when we meet auto accident victims injured on the job, they often are confused about  their rights. While Colorado does subscribe to the principle of worker’s compensation being a worker’s EXCLUSIVE REMEDY, when it comes to the negligence of another party (as long as it is not a co-employee), an injured worker has the right to bring a separate claim and even a lawsuit against the at-fault driver’s insurance while STILL receiving worker’s compensation benefits.

If a driver is working at the time of his car crash, and that driver caused his own injuries, he has a right to benefits through his employer’s worker’s compensation insurance, regardless of fault. Alternatively, if that driver was injured on the job and the injuries were caused by the other driver’s negligence, he can claim and receive medical care, temporary wage benefits, and permanent injury compensation from his employer’s worker’s compensation insurance, BUT also receive a settlement from the negligent driver’s auto insurance company.

These cases can become complex in that the worker claiming benefits from the at-fault driver’s insurance may be required to payback some money recovered from that source back to worker’s compensation. However, bringing claims against both the worker’s compensation insurance company and against the at-fault party’s insurance can be very helpful to assisting accident victims in achieving higher levels of compensation. 

In such a circumstance, we recommend that a careful review occur at the earliest possible time with an attorney versed in both auto accident and worker’s compensation laws. 

Remember, at Anderson, Hemmat & Levine we are happy to help you with these matters and always offer a free consultation.

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The Federal Motor Carrier Safety Regulations (”FMCSR’s), require motor carriers and drivers to create and maintain a wealth of information that can help prove and WIN YOUR CASE! The lawyers at Anderson, Hemmat & Levine are uniquely qualified to obtain and then use information, including driver qualification files, driver logs, supporting operational documents, maintenance records, e-mails, and satellite tracking, to uncover and prove that the defendant carrier was allowing, encouraging or even requiring its drivers to drive over hours at excessive speeds in equipment that had not been properly maintained.

Unfortunately, THE PASSAGE OF TIME WORKS AGAINST US. The FMCSR’s allow carriers and drivers to DESTROY MANY KEY DOCUMENT in as short as 6 MONTHS. Consequently, it is important that people who advise victims of trucking related crashes, make all efforts to get these victims in consultation with a QUALIFIED ATTORNEY as soon as possible. Sadly, many attorneys ”dabble” generally in any kind of personal injury that they come across. However, handling major trucking accident litigation requires SPECIALIZED understanding and a commitment to staying current on all rules and regulations involving the trucking industry, AS WELL AS THE KNOW-HOW TO GET THE EVIDENCE INTO COURT.

Senior partner, Chad Hemmat is one of only a very few Colorado attorneys who is also an active member of the Association of Interstate Trucking Lawyers of America.

BEING INJURED BY A 18 WHEELER IS SERIOUS AND REQUIRES A PROMPT AND SERIOUS RESPONSE.

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Victims of drunk drivers are often told by insurance companies that they have three years to sue. While that is technically true, we ALWAYS SUE IMMEDIATELY in these cases. We do that for two reasons:

1) Drunk drivers are criminals. They often leave the jurisdiction after their arrest. If they leave and you cannot serve them your lawsuit, there is no case and the insurance company for the drunk does not have to defend them in the action, or pay you anything. So, in these cases we sue at the earliest possible opportunity to make sure we have the drunk and his insurance company on the hook to pay for our client’s injuries.

2) Ask yourself, where did the drunk get intoxicated? Often times the answer is, at a bar. THE BAR might be an excellent ADDITONAL DEFENDANT, provided you sue early enough. Lawsuits against a bar for “tanking up” the drunk and putting him on the road must be brought within ONE YEAR of the accident. Often times we dont know about the bar or that there even was a bar involved until we take the deposition of the drunk and make him tell us where he was drinking. These claims are called Dram Shop claims and can be very valuable and a great source of additional compensation for our injured clients.   

If you meet with an attorney who does not want to bring lawsuit immediately in such a circumstance, they are probably the wrong lawyer for the job.

At Anderson, Hemmat & Levine we bring lawsuits against drunk drivers and the bars they drank at all the time, and if you’re hurt by a drunk driver we can help you too. Call us for a free consultation.

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The attorney you hire to handle your auto accident claim needs to have specialized knowledge of Colorado motor vehicle laws. If they do not, it could cost you. For example, attorneys representing people injured by the negligent conduct of a young driver often fail to consider the legal effects of a little understood principle of Colorado law, known as, the Family Car Doctrine. Often times young people who cause injury accidents do so while driving a car owned by a parent. Through the application of the Family Car Doctrine, an individual who might otherwise not receive full compensation pursuing only the claims against the insurance company on behalf of the at-fault driver, may seek and receive full benefits and recover substantially more money by pursuing larger policies of insurance owned by a parent.

Before, you hire any attorney to represent you in a motor vehicle accident, ask that attorney to explain to you the Family Car Doctrine. If that attorney is unable to explain it; do not hire that attorney!

At Anderson, Hemmat & Levine, you can ALWAYS expect a FREE CONSULTATIONfrom a knowledgeable attorney who will ALWAYS answer your questions straight.

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