Recent Posts in Liability Questions Category

A)    The Myth:

Remember hearing from some friend or family member that if a person injures themselves while burglarizing your home, they can sue you and win.

Ever wonder if such nonsense is really the law?

B)    The Truth:

Well, like most things that you hear from unreliable sources, for the most part it is UNTRUE, with only a slight glimmer of partial truth.

C)    The LAW:

In Colorado, all injuries occurring on the property of another, whether commercial or residential, are regulated by the Colorado Premises Liability Act.  It provides a three-tier hierarchy of levels of responsibility to landowners, depending on the status of the injured person on the property at the time of injury.

1)   Invitee: these are people such as customers in a grocery store.  Generally, they are on the property of another to conduct business.  Landowners are held to the highest responsibility under these situations.

2)   Licensee: these are the casual guests, like a neighbor who comes over to borrow a cup of sugar or the couple you invited over for dinner.

3)   Trespasser: pretty self explanatory–think “burglar.”  However, a trespasser could also be a person in an area of the property where they are not allowed (i.e. a customer who walks into the kitchen of a restaurant).  Landowners have the lowest level of responsibility to these people.

The practice tip for attorneys representing people injured on the property of another is to argue that the status of the injured person is that of an invitee, or at worst, a licensee. Whenever possible, avoid having your client labeled as a trespasser.

The simple reason for this is that the higher the status of the injured person as it relates to why they were on the property (invitee better than licensee better than trespasser), the easier it is to prove your case and win for your client.

A landowner is liable to a business invitee for injuries caused by a dangerous condition or activity on the property that they knew or reasonably SHOULD have known of.

Compare that obligation to the one owed to a person who is merely a licensee.  Landowners are liable to licensees for injuries caused by a dangerous condition or activity on the property of which they had ACTUAL knowledge.  That means that even if they should have known about the danger, the landowner will not be held responsible if they can prove that they didn’t have actual knowledge of it.

However, if the injured person is determined to be a trespasser, then the landowner is ONLY liable if they INTENDED to create the injury.  Think bear trap by the front door to catch the burglar. In reality, practically never will the landowner or occupant be determined responsible for injuries to trespassers.

D)    Conclusion:

So, “The Myth” we started with above would only be true provided that the burglar can prove that the landowner set up some sort of booby-trap on his premises designed to hurt a potential trespasser. Granted, those situations actually do happen but very infrequently.

As long as you avoid such things as setting up a shot gun to go off if someone opens a particular door, or digging a big hole in your yard designed to trap a thief,  then the chances of being sued by your burglar is extremely remote. And the chance of them actually recovering against your homeowner’s insurance is even more remote.

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At Anderson Hemmat & Levine LLC, we understand that sometimes people are injured through no fault of their own by a dangerous condition on a property.  If you are unsure if you were an Invitee,  a Licensee, or even a Trespasser, and you were injured, please call and speak with one of our attorneys today.

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The most common places for people to get needlessly injured are apartment complexes, grocery stores, hospitals and parking lots.

PREMISES LIABILITY STATUTE

The law in Colorado is exactly the same for all of these circumstances.

C.R.S. § 13-21-115 requires that you prove that a landowner either knew or reasonably should have known of a dangerous condition or activity existing on the premises and failed to correct it, thus resulting in a needless injury.  This requirement exists when a person is on a property for business-related purposes which benefit either the landowner or the occupant.

JURORS’ ROLE

Despite what the legislature wrote in the Colorado Premises Liability Act, it is Colorado juries that listen to these cases and make decisions on the worthiness and value of injury claims.

For example, even though we all know how dangerous and preventable injuries from ice on a sidewalk can be, rarely have Colorado juries awarded recovery to people claiming injuries from winter outdoor slip and falls, regardless of the circumstances. However, jurors are generally more sympathetic when the premise is devoted to elderly or sick who are more susceptible to greater injury.

For example, a hospital that fails to recognize patients who should be considered falling risks tends to be more warmly received by Colorado jurors than grocery store spills that often look suspect to jurors. Furthermore, a slip and fall of a resident at an apartment complex devoted to senior citizens tends to have more jury appeal than a similar occurrence at a regular apartment complex. The idea in these type of cases is that the complex should have been more on notice and has a higher degree of perceived responsibility.

Historically, jurors tend to be more sympathetic to injuries caused by objects that fall from above onto people than injuries sustained based on a patron’s slipping and falling. On the other extreme, almost no injury that occurs after a person has consumed alcohol, such as a slip and fall at a bar or a rough encounter with a bar-bouncer, has any jury appeal.

WHY THESE CASES CAN SETTLE

Cases settle when insurance companies view that their failure to settle a case will result in a jury of Colorado citizens awarding substantial money. Considering a jury’s likely reaction to a particular set of circumstances is often a game played on both sides of these cases.

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The above examples serve as the general rule about cases involving premises liability and the level of jury appeal. Please note, however, that every injury case is different and the facts, including the degree of injury, must be considered in each case by a trained legal professional.

At ANDERSON, HEMMAT & LEVINE, we will take the time to consider your case on an individual basis and help you understand the merits and issues associated with it.  Please call us today to discuss your claim.

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The answer is yes, but ONLY if you listen to what the insurance company tells you.

In fact, Colorado Statute § 13-21-111 essentially says that if you get hurt in an accident and you were not wearing your seatbelt, then the jury gets to reduce the amount of money the at-fault driver must pay you.  Sometimes this is referred to as the “Comparative Negligence” statute. It effectively allows the jury to say “we think you wouldn’t have been hurt as badly had you worn your seatbelt, so you are partially at fault for your injuries.

We often have clients who find themselves squarely in conflict with this very unique aspect of our Colorado law which the only learn about AFTER their accident where they were not wearing their seat belt.  Of course, they almost always first hear about this strange Colorado State Statute from the at-fault driver’s insurance company.

In truth, seat belts do save lives – sometimes.  And sometimes, seat belts have no effect at all. And, not to be blasphemous, but sometimes seat belts cause increased injuries. 

At the risk of appearing “anti-seat belt,” which we are not, the scientific data coming out of research study after research study shows that seat belts are just not as much of an “injury preventer” as the general public believes them to be.   In fact, seat belt usage in side impact (t-bone) collisions, and certainly in lower impact rear end collisions often have resulted in equal or even greater injury to persons comparable to occupants in similar collisions not wearing seat belts.  Rollover collisions where occupants remain in the vehicle have been shown to result in no significant difference in injuries regardless of seat belt usage. And of course, head on collisions at speeds greater than 50 mph, generally result in fatalities regardless of seat belt usage.

Seat belts are very important. However, any attorney who caves simply because an insurance company adjuster points out that his client was not wearing a seat belt at the time of the collision, probably lacks experience or the intestinal fortitude to fight for his client in trial and should probably look into becoming a real estate lawyer.

A good trial attorney has the ability to  sufficiently educate a jury through research studies and well qualified experts as to why they should not exercise their discretion to reduce an injury award based on the false presumption that the injury victim’s degree of injury would have been less severe but for the lack of seat belt usage.  In fact, a careful look at Colorado jury verdicts has found that, overwhelmingly, juries have not significantly reduced awards for a plaintiff’s failure wear a seat belt.

Most of the discussions and detailed references to this obscure Colorado law come from insurance adjusters.  There is plenty of insurance adjuster chatter about the freedom a jury is given to reduce an award on a “non-seat-belt” wearing victim.  Our perception is that adjusters try their best to paint a bleak picture for auto accident victims in an effort to get them to lower their expectations for settlement.  Apparently, it must be working; because they continue to do it.

Truth is, there certainly are occasions where an injury can be avoided or a least minimized by seat belt usage.  But, for a car accident victim who is concerned about their own non-usage of the seat belt, careful selection of attorneys who are not afraid to tackle this issue is critical.  Injury victims can get justice in a Colorado court, EVEN when they were not wearing their seat belt in a car accident.  These cases are complicated and require the guidance of experienced legal professionals.

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At ANDERSON HEMMAT & LEVINE we are well versed in this area of the law and are well prepared to fight these battles on your behalf.  If you were injured in a recent car accident and you were not wearing a seatbelt, don’t give in just yet.  Instead, give us a call and let us help you through this difficult issue.

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Last week, I listened to top American and Japanese executives express remorse over the defective gas pedal acceleration issue which appears to plague nearly all of Toyota’s recently built models.  It got me thinking about how this story developed.

A PATTERN

Some years ago, a small number, but remarkably similar, complaints were reported by Toyota owners.  These complaints included sudden acceleration, braking delay, or both, resulting in injuries and deaths.  Over the next several years, I must have talked to half a dozen or more people who personally reported that they themselves or a family member had an unexplained acceleration or failure of the brakes in their Toyota, resulting in an automobile accident.  However, Toyota claimed to be investigating each alleged occurrence with impressive black box data, and a team of well-qualified scientists and engineers.  In actuality, Toyota used fancy engineering terms in denying the existence of any problem and cited driver error as the plausible counter-explanation for the wreck.

AN APOLOGY

Despite spending years insisting that these problems were mechanically impossible, in the summer of 2009, Toyota announced that the driver’s car mats in certain models “may” be causing “the problem.”  But in an even more provocative move, last week, Toyota announced that a recall was necessary of many models to add a component to the accelerator pedal to address what Toyota now calls a “stickiness concern” related to the gas pedal which “might” over time cause the vehicle to “unexpectedly accelerate.”

A RECALL

On the Today Show early last week, the United States Division President of Toyota, Jim Lentz, expressed remorse for the problem which he claimed only became known to the company in October, AFTER announcing (perhaps erroneously) that the floor mats might be the culprit.  He said it was more likely that a missing component to the gas pedal either in addition to the floor mat issue or separately  “might” be causing or contributing to the “stickiness.”  He went on to identify (without seemingly blinking even once) that it could NOT be an electrical problem causing this “sudden acceleration, or delay reported in brake response” as there are fail safe systems on top of fail safe other systems that prevent this from being caused in the electrical system.  Of course, later in the week, the grandson of the founder of Toyota, CEO Akio Toyoda (yes, the company changed its name slightly from it’s founder in the 1930’s) expressed his remorse to his customers.

Most recently, Toyota announced an additional concern with the “software” in the Toyota Prius and Lexus Hybrid which also might explain the delay in brake response in those vehicles.  So, accordingly, Toyota drivers can take comfort in the fact that it is “not the electrical system,” but instead perhaps a software glitch that explains these many injuries and deaths in addition to floor mats, and a sticky accelerator, that Toyota has been denying the mechanical viability of for years.

Thus far, United States media reaction has been consumed with the nature of apologies from the corporate officers and how unusual it is for a Japanese executive to make such an apology.  However, when the shock waves of these concessions pass, I expect to hear words like corporate conspiracy, fraud, deception, and finally criminal prosecution.

LESSONS FROM HISTORY

These events cause me to recall my very small legal role in a famous case against General Motors (”GM”) from the 1980’s.  Back then, it was discovered that GM had learned that its 1970’s model van had an automatic transmission that would, without prompting, slip out of park and move into reverse. This resulted in unattended vehicles, often with engines running, becoming very dangerous safety risks for anyone in the proximate vicinity of such an occurrence. In fact, fire and police agencies were regularly reporting such events for years before any acknowledgments were made.  Each was met with an official denial of fault.

However, even at the time of these well-explained and what appeared to be plausible engineering-based denials of responsibility, GM was aware of the genesis of the problem and the safety risks associated with it.  As I recall, the cost for the proposed fix was about $15 per vehicle. GM, despite being aware of the risk of human lives being lost or destroyed, felt the cost of the fix was simply too expensive.

Some years after that unfortunate decision, I remember meeting a 23-year-old mechanic who was one of many who suffered the effects of GM’s secret. That young person was paralyzed just below the jaw.  GM’s secret cover up stayed secret until the lawyers I worked with uncovered the deceit. The evidence that exposed what GM knew and when they knew it came out of masses of documents turned over by GM after the Court ordered them to produce the documents.

Being a student of history, I am reminded that the Ford Pinto had a known tendencyto explode on mild rear impacts.  Futhermore, Ford’s knowledge of the problem was so complete that they had internal documents that made an actuarial assessment that it would be cheaper to pay the few surviving victims who had the  guts to sue AND who managed to find a lawyer that had the smarts to discover the KNOWN problem than it would be to fix the problem and make the car safe.  Again, documents stated all of this clearly and they were discovered through court-ordered document production.

THE GAME CHANGERS

With companies building unsafe products who then hide behind branding, advertisement and public relations firms, I am left wondering how it is possible that trial attorneys ever managed to get such sinister reputations in the pool of public sentiment?

Fundamentally, what separates mega companies like Toyota from others (particularly trial lawyers) is their financial ability to hire Madison Avenue advertisers, public relations firms, and defense lawyers and their ability to spend generously to commission well-controlled studies with well-controlled results that can then be published as “facts.” 

But what gives the public a chance at invoking real corporate change and responsibility is the trial lawyer.

When the last chapter is written on Toyota and this “unwanted acceleration/delay in brake reaction” scandal, in my view it will be determined that hundreds of people needlessly died, thousands of people needlessly were injured and it will be the trial attorneys who will bring to light the full extent of this scandal.

Furthermore, while Japanese companies are fond of claiming in US product liability litigation that they maintained no engineering vehicle testing documentation, it will be these trial lawyers and the court orders they receive granting document production that will prove the full extent of Toyota’s breach of public trust.

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While driving safely is always a start, car manufacturers prove time and time again that if given a chance to make money and breach the public’s trust, they will. Truly, driving safely is simply not enough to assure safety.

At ANDERSON HEMMAT & LEVINE we look forward to speaking with you about these issues.  If you have concerns about the safety of your vehicle and are hurt as the result of someone else’s negligence, please call and speak with one of our attorneys today.

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In continuance of our series, this week we will look at variations of police/emergency personnel involvement as well as some classic drunk driver scenarios.

O)    ACCIDENT WHERE POLICE ARIVE / Filed Report = OK Case

The police report is helpful in proving what happened at the scene and you should always insist that the vehicles stay put and the police are called to the scene.  Unless, of course, the police tell you to move your car or file a cold report, obviously.  The mere exchanging of information at the scene is often troublesome later in a case.  An independent police report will go a long ways in proving both liability and injuries. 

P)    ACCIDENTS WHERE POLICE ARE NOT CALLED = Bad Case

Very hard to prove what actually happened at the scene without a report. Not calling the police, makes the case much tougher to prove even if the at-fault driver is admitting liability there at the scene, it is not uncommon for that story to change once they get “lawyered up”

Q)    PARAMEDICS TAKE INJURED TO HOSPITAL = Really Good Case

Many people get injured in motor vehicle accidents without knowing they are injured at the scene.  However, as it relates to proving probable injury, nothing is more helpful to a case than immediate paramedic and emergency room documentation.  If you are injured in an accident, then taking the ride to the E.R. in the ambulance is a good idea.

R)    POLICE VIEW NO INJURIES= Not Such a Good Case

You start the case in a bit of a hole when the police document no injuries at the scene.  Though it is certainly a fact that can be overcome, the case is simply better, when your police officer supports with documentation the appearance of injury at the scene.  This means that open and honest communication with the officer at the scene of the accident should take place.

S)    DRUNK DRIVER Leaving Bar with Empty Beer Cans in the Car = Bad Case to Sue the Bar

Surprise! When you sue the bar for negligently over-serving the drunk, the bar’s lawyer will use the empties in the vehicle to prove it wasn’t the bar’s conduct that made the Defendant THIS drunk. They will say: “he must have drank in the car after he left our responsible tavern.”  Witnesses are the key to cases like these unfortunately they can often be very difficult to track down.

T)    DRUNK DRIVER Leaving Bar without any Alcohol in Vehicle = Better Case to Sue Bar

The case is much cleaner when we can say, “what else other than this bar could have possibly made this man that drunk?”  Thorough and early investigation is crucial in a case like this.

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If you find your case meeting some of these “rules of thumb” discussed above, do not dispair – please call us at ANDERSON HEMMAT & LEVINE to speak with one of our attorneys today to discuss your case.

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As we continue our series, this week we will consider variations of Rear-end collisions. These “rules of thumb” are sure to surprise some of our readers. 

I)    REARENDED by a Co-Worker = O.K. Work  Comp Case / No Case Against the Driver

Surprise! Generally rear-end cases are easy open and shut, however, Workers’ Compensation exclusive remedy kicks in to keep co-employees from suing each other if you were both driving for your work for the same company.  You certainly still have a good Work Comp claim, so you will want to talk to a good attorney who knows what they are doing and can take your case.

J)    REARENDED by a Subcontractor of Your Employer = OK Work Comp Case / Great Case Against the Driver

No problem. The exclusive remedy provisions of Work Comp don’t apply to this type of case. You have a good Work Comp case and a good separate case against the driver and his auto insurance company, perhaps even the company he was working for at the time.  When finding an attorney for this crash, you need to find a firm well versed in both motor vehicle injury accidents and workers’ compensation.

K)    REARENDED by a Contractor of Your Employer (who is the subcontractor) = ok Work Comp Case/ No Case Against the Driver

Surprise! It’s weird, but because our laws say so, if you are on the job for your company that is a subcontractor and an employee of the General Contractor rear-ends you then the exclusive remedy provisions DO apply and your only actual case is with Workers’ Compensation.  This is only true if both you and the other driver were driving for work purposes at the time of the crash.

L)    REARENDED by a Vehicle on Slippery Roads = Usually Bad Case

Surprise! These accidents tend to be lower velocity lower levels of property damage and most jurors have sympathy for the poor bloke sued for slipping and sliding on a wintry day.

M)    REARENDED by a vehicle due to sudden onset of illness or unconsciousness by other driver = Real bad case if they can prove it was SUDDEN onset and not a neglected condition. Great case if it was medical neglect or non compliance.

A sudden health malady that causes a driver to lose control and crash is a complete legal defense against anyone claiming injury from the occurrence. Meaning, if this really happened that way, you lose. Bad case! However, what often looks insurmountable is may actually be a case of outrageous and gross negligence in disguise.

In my entire professional career I have never seen a case of SUDDEN medical condition.  With investigation it almost always turns out that these “sudden onsets” are actually conditions that that the negligent driver knew about for years and ignored.  This fact will quickly turn an un-winnable case to a completely winnable case.   For instance, not taking high blood pressure medication you were prescribed, not taking your seizure medication, or not eating when you know you have hypoglycemia are all examples of gross negligence. Whoever gets injured by these folks have great cases.

N)    REARENDED by a Driver Whose Brakes Suddenly Failed = Bad Case if it was Actually SUDDEN.  Great Case if it was Long Term Maintenance Neglect.

These cases are similar to the sudden medical condition cases, in that often there are plenty of warning signs to the driver of the impeding danger. So, if the brake failure was sudden and not foreseeable, it serves as a complete defense. Meaning, you lose and get nothing.

At the risk of sounding cynical, I again have never seen a “sudden brake failure” be the reason for any accident with any of my clients.  With a bit of investigating, these cases have always turned out to be gross neglect of proper vehicle maintenance.

With this fact, you can take a case on life-support, add punitive damages and take the Defendant to task for so poorly neglecting proper maintenance just by investigating the condition of the vehicle. Jurors hate people who neglect their vehicle so bad that they hurt other people. With the right love and attention these are great cases.

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At ANDERSON HEMMAT & LEVINE, we understand these nuances and work hard to investigate each claim properly.  By digging below the surface of a claim we have found more than one very good case turned away by other attorneys.  Please call us today to discuss your case.

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There are certain general “rules of thumb” in injury cases that lawyers use to quickly determine whether a case has merit or not.  Most attorneys use these “rules” whether they recognize it or not.  If you have had the experience of a lawyer losing focus when he should be listening to how you were injured, rest assured that he probably heard a bad fact which caused him to determine that your case fits a certain profile.

While these “rules” generally apply, we recognize that the individual facts of each case can turn what would normally be a bad case into a good case.  Our attorneys at ANDERSON HEMMAT & LEVINE will listen to the facts of your case before making any premature determination about the merits of your case.  We recognize that every case, just like every person, is different.  We also recognize that in trial, the subtle differences of each case can make a world of difference in the ultimate outcome.

As a public service, we present this blog as part of a multiple week series of blogs:  “Calculus of Personal Injury from A to Z.”  We hope this will help you better understand a lawyer’s thinking process.  Consider this article another example of ANDERSON HEMMAT & LEVINE giving away the trade secrets. We are certain that some of these viewpoints will surprise you.  For this week, we will present the first three “rules of thumb.” 

A)     AUTO/PEDESTRIAN INJURIES= generally bad cases

This is usually a big shock to people who grow up believing that “pedestrians ALWAYS have the right of way.”  Forget what you learned in Drivers Ed., pedestrians usually don’t have the right of way.

That being said, we have been very successful in representing hundreds of pedestrians involved in these accidents.  Surprisingly though, most drivers who hit pedestrians do not get ticketed.  Often it is the pedestrian who gets the ticket.  While pedestrians are supposed to have the right of way in the crosswalk, an injured pedestrian is often out of the crosswalk (or at least they are after the vehicle popped them fifty feet down the road).  Also, while the pedestrian is often not able to tell their story at the scene and usually is rushed to the hospital, the negligent driver usually has the advantage of talking to the investgating police officer for a half hour or more. It’s not too difficult to imagine how an investigation can stray from whatreally happened when the cop only hears one side of the story.

So, if you’re wondering why lawyers you are calling aren’t too “gung-ho” about your case, this is probably why.  However, don’t give up!  Just continue calling law firms until you find someone willing to listen attentively to your story.

B)     HIT AND RUN/ Never Found Driver = ok case

Surprised?  These cases are brought against our own client’s uninsured motorist coverage. They usually are decent cases, but the insurance company will often call into question the curious nature of the accident, or even if an accident occurred at all because, after all, the other driver is gone. Often, it is this uncertainty that results in the insurance company low-balling offers of settlement. But don’t let the insurance company do that to you!

C)      HIT-AND-RUN/ Police Find Driver = exceptionally great case

These cases are great! They allow us to sue the actual hit-and-run driver. There is never a good explanation for leaving the scene of an accident, so usually this allows us to add punitive damages into the mix and often involves multiple insurance policies.  There is often a lot of leg work involved with these cases, but a good attorney should be more than willing to go the extra mile.

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At ANDERSON HEMMAT & LEVINE, we believe that each case deserves individual attention and evaluation.  If other attorneys are telling you that they just don’t have room for your case right now, what they are really telling you is they didn’t listen to your case and don’t want it.  We will listen and take the time to explore the merits of your case to give you an honest evaluation.  Call us today to speak with one of our attorneys.

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Colorado law, C.R.S. § 42-4-237, requires that passengers and drivers of automobiles must wear seatbelts. You can even get a ticket for not wearing your seat belt. But, there is a lesser known cousin of the “seat belt required” movement that people often learn about after it’s too late – the civil consequences of being in a motor vehicle collision, and not having worn your seat belt.

	Under Colorado case law, even if the accident was completely the other driver's fault, a jury is free to reduce your damages, if they choose, all the way down to zero for a failure to wear a seat belt.  Anderson v. Watson, 929 P.2d 6, (Colo.App. 1996).  The jury is charged with deciding, often with scant evidence, how much of your pain and suffering would have been avoided had you theoretically been wearing your seat belt at the time of the accident. The reality is that seat belts are a good idea. They are of vital importance in head-on collisions. They are of some benefit in off center collisions. They are of marginal benefit in side-impact collisions. And, yes, in lower impact rear-end collisions they often cause more injury than they avoid. However, the law correctly endorses the use of seat belts and as a matter of public policy continues to encourage their use. It has always been curious to me that our legislature continues to make the laws stricter related to seat belts being worn by drivers often with six thousand pound steel buffers around them already, but has no problem endorsing motorcycles lack of use of a helmet when that rider has no buffer between himself and the pavement. But, those issues are for legislators to resolve. As a lawyer, when we come upon a case of a person who reports themselves at the scene as NOT wearing a seat belt, the first thing I start thinking about is what sort of evidence might be helpful to a jury in assisting them in minimizing the possibly large bite that they might take out of my clients verdict. Accident reconstruction testimony, police testimony and sometimes just some plain old-fashioned horse sense and logic help me in formulating my arguments dealing with this problem. For you drivers out there, particularly during this holiday season, make it one of your New Year’s resolutions to start buckling up EVERYTIME you get into a vehicle. Seat belts do save lives and not wearing one can cost you in the event of an accident both physically and monetarily.

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From all of us at ANDERSON, HEMMAT AND LEVINE, please BUCKLE UP, for your safety and for your case.  But, if you happen to forget and unfortunately are then involved in an accident, call us so we can you cope with the civil consequences.

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You have likely heard about young reckless drivers leaving a trail of injury, death, and destruction and probably have then thought: “Boy, I hope that young man has good insurance.” However, often the reality is that these ultra reckless young drivers have little to no insurance and no tangible assets.  Therefore, victims of these young drivers need to arm themselves with attorneys who are educated in the latest aspects of current laws and prepared to use every possible means to find recovery.

Reckless young drivers are often the product of over-indulging parents. Even if the parents are not wealthy themselves, there are often additional insurance policies available if you bring these parents into a lawsuit.  But how do you do that?  This article will talk about the 3 claims you can bring against parties OTHER than the driver of the car.

1)    Negligent Entrustment :

If the at-fault driver was using a vehicle that didn’t belong to him at the time of the accident, a claim for negligent entrustment may be brought against the actual owner of the vehicle.  This claim can only be successful if you can show that the owner of the vehicle either had knowledge of or reasonably should have known of the driver’s tendency to be a dangerous driver. 

a)      Mechanics

Intensive investigation into the at-fault driver’s history and driving record is the best way to determine whether this claim can and should be brought.  After all, a negligent entrustment claim cannot be brought EVERYTIME a person loans a car.  There must first be evidence that BEFORE the accident occurred, the owner should have had reasonable concern about letting this driver borrow his car.

A driving record that merely shows a pattern of speeding or red light violations is not always considered a sufficient basis for bringing a negligent entrustment claim.  There is even some question as to whether a driving record showing prior accidents would be sufficient.  After all, if your neighbor asked to borrow your truck would you really ask to see his DMV driving record first?  Most likely, the answer is no.   However, such information would very likely be obvious to the parent of a young son or daughter who has a history of reckless driving, and thus the claim would certainly be appropriate.

b)     Advantages

Negligent entrustment claims have several advantages.  For one, they bring more insurance policies to the table, which ultimately means more money for the victims. 

Additionally, these claims make it possible for jurors to hear about the horrible driving record of the Defendant, which normally would be precluded. Court rules normally prevent the Defendant’s poor driving record from being presented as evidence.  Without being able to present this evidence, jurors often mistakenly believe that the young Defendant has a clean driving history, even though nothing could be further from the truth.  Negligent entrustment claims help Plaintiffs overcome this obstacle by allowing them to show the jury the poor driving record of the Defendant.  After all, the at-fault driver’s poor driving history is the heart of the claim against the owner of the car.

2)    Family Car Doctrine :

Growing up, you may have heard your dad say “my house-my rules.” Turns out, there is a law that supports that notion. If I were going to give a new name to the Family Car Doctrine, I would say “Dad’s car-Dad’s fault.”

a)      Mechanics

Under the Family Car Doctrine, if you are the head of a household and a relative resident [ex: son or daughter] of your household borrows your car, then under the law you are just as responsible for the negligence of that driver as if you were driving and crashing the car yourself.

It is important to note that in a two parent household, either or both parents can be considered the head of the household, and therefore, both can be at fault to the same level of responsibility as the resident relative who was driving a family car.

b)     Advantages   

This is a particularly important claim to bring when very inexperienced drivers without lengthy driver histories get behind the wheel.  Where the at-fault driver is a young driver who does not yet have a driving history, let alone a poor one, a claim for Negligent Entrustment may just not be viable.

But if dad lent his car to his son, irrespective of what dad knew or should have known, the Family Car Doctrine makes his vicariously liability equal to that of the driver, simply by proving the basic elements of tort.  This is a useful and yet often overlooked claim.

3)    Financial Responsibility Act :

What if Junior crashes a car not owned by his parents and he doesn’t have a poor driving record yet because he is too young?  Dead end?  Think again.

Again, the idea here is to try and find as many insurance policies as possible which can be stacked to provide a very injured victim the money needed to help with recovery. 

a)      Mechanics

When Junior first got his provisional license at the DMV, a parent or guardian had to accompany himand sign a Financial Responsibility document pursuant to C.R.S. § 42-2-108.  This document means that an injured victim may hold the parent or guardian who signed for the minor driver liable for any accidents caused by that driver, no matter which vehicle he is driving, until the minor driver turns 18.

b)     Advantages

This is yet another vicarious liability tool that may afford the added opportunity to bring another insurance policy into play.  Remember though, this claim is limited to situations where the negligent driver is under 18 years of age at the time of the crash.  After Junior’s 18 ^th birthday, this claim extinguishes.

4)    Conclusion :

It can be a challenge to find sufficient money for people who have been catastrophically injured in bad car crashes. Collateral claims, such as the ones explored above, need to considered and explored in cases where the injuries are extreme and on first blush it appears that the insurance coverage is inadequate.

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At ANDERSON, HEMMAT & LEVINE, we understand that Justice For Victims is not easily obtained but we believe that it Begins Here.

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I have a confession to make.  More than any other single topic I have covered in any of these blogs I have the least amount of "first-hand" experience with this topic.  This is simply because I have never worked for or represented any insurance companies. However, this being said, I have spent more than 18 years battling the efforts and perceptions of these corporate giants.  As an experienced tactician, I realize that knowing your opponent and what they are thinking is critical to success.  It is from this perspective that I would like to share with you how these insurance companies operate and what they think about you as a claimant.

How They Operate

First it is important to understand that insurance companies are large corporate profit centers complete with regional offices, corporate policies, and competing branch managers.  The average claims office is an entire floor, or many floors, of an often dreary office building with very little character or personality, which frankly matches the employees who work there.  In these floors you will usually find small metal and plastic furniture offices around the periphery of hundreds of cubicles.  This dreary work environment makes it easy to forget that injured people are more than just number.

Large Corporations love to systemize their stock and trade because of their basic belief that in so doing it will increase efficiency and ultimately their bottom lines.  Insurance companies are no different. They themselves will usually admit that resolving property damage claims lends itself to systemization far more easily than personal injuries.  People and their injuries are unique.  Even if the employees of the insurance company know this fact in their personal lives, they seem to think nothing of driving to work each day and treating unique injuries as some sort of equal and tangible commodity.

When you make a claim to the at fault driver's insurance company, almost immediately, the company will assign your claim to a department.  In turn, the department head, called a claim supervisor, assigns a specific overseer [known as a claim representative or adjuster] to your claim. 

Though the adjuster's job description is not overtly described in any manual, saying they are to make sure you receive as little as possible, rest assured that this is their main concern.  If you have ever seen Disney's © animated movie, The Incredibles ©, you'll know exactly what I'm talking about.

As part of an adjuster's overall efficiency they are rewarded based on how well they resolve matters consistent with the policies, and criteria created by the company.  To better systemize, insurance companies use something called "valuation software."  These are computer programs which make it possible for adjusters to drain every possible drop of life out of a claim and turn it all into pure numbers. One of the most popular programs is called "Colossus" (a self prophetic indication of the enormity of these insurance companies).  

The way these programs work is that adjusters take the factual and injury scenarios and input the information into the computer and the settlement range pops out.  The criticisms of this approach are plentiful.  However, for purposes of this blog, I will side-step the issue and spare you the pages of commentary I could write on the flaws of such a system.  

It is with all of the above in mind that I want to provide you with two steps to utilize when you proceed with your claim and the insurance company handling your claim.

Step 1: Spot the Red Flags:

To begin with, there are certain red-flags that the insurance adjuster will note and these are often the basis of low or at least lower settlement offers.  You too should be able to spot these red flags to help you understand where the insurance adjuster is coming from. Those red-flags include, but are not limited to the following:

Red-Flag #1: Small or no damage to the car.

I have seen insurance companies completely disregard major injuries (even surgeries) that have no other earthly cause but the car accident, because the adjuster gets stuck on the fact that the vehicle damage was under a $1,000.  The fact is emergency room doctors never go out to look at your car to decide how to treat you.  Furthermore, to my knowledge, no auto mechanic has ever been consulted in lieu of an x-ray.  So, I am constantly amazed that an adjuster will believe that a metal bumper can be contacted and significantly distorted, but the occupant could not in turn have muscle, ligament or cervical disc injury caused by the same collision.

Red-Flag # 2: No immediate emergency room care.

The vast majority of clients I have represented drove away from the accident scene and did not go by ambulance to the hospital on the day of the crash. Studies show that often very injured people do not express that injury at the scene. Despite the well recognized literature on the subject, insurance companies regularly discount cases for this omission. 

Red-Flag #3: Delays in seeking treatment for more than a couple days.

Insurance adjusters hold a bias and firmly held belief that people who are really injured get to the doctor quickly.  In this day and age, without automatic medical coverage and the economy being what it is, often people try to grit out their injuries and avoid incurring a bill.  Even though insurance companies are aware of this, they continue to maintain this as a red-flag issue.  I once had a nurse client who waited 18 days before he sought care with his general practitioner.  Despite the delay he ultimately required a 4 level lumbar fusion surgery.

Red-Flag #4: Pre-existing injuries.

This one is huge.  If an adjuster learns that a person with a neck injury has suffered and treated for a similar malady in the past, often that adjuster will feel there is nothing else they need to know.  This analysis is so very flawed.

A person who had an injury in their past, received care and ultimately a complete release from her primary doctor generally has really great documentation that she recovered from her prior condition.  If some years later the patient has another accident that results in the need for additional care, in my mind that should not serve as a discounted claim.  In fact, that claim should be worth every bit as much as any other injury claim.  However, adjusters refuse to see it this way on their own.

Red-Flag #5: Prior claims.

People who have formerly brought claims, even very minor ones are often treated worse by the insurance companies than first-timers.

Red-Flag #6: Medical treatment with one or more of the "Usual Suspects."

There are doctors in the State of Colorado that the insurance companies know as being "players."  Whether it is true or not, certain doctors get the reputation for being overly enthusiastic for their patients.  As a consequence, patients who see these doctors are viewed by adjusters as likely not being as injured as these doctors are suggesting.

Red-Flag #7: Medical care being orchestrated by attorneys.

This is probably a sound red-flag in that attorneys who orchestrate the doctors that their clients see really do a disservice to their clients.  It is so easy for the patient, his doctor and the lawyer to all be completely discredited by this completely avoidable mistake.

Step 2: How to Avoid the Red-Flag Pitfalls:

In a perfect world, if you know you are injured in an accident, doctors and emergency staff should be consulted at the scene and immediately thereafter.  Go to doctors you would regularly see.  If you are still in pain from the accident, do not allow large gaps in treatment.  Do not be pushed into seeking medical care or any other care because that is what your attorney wants.  In that circumstance, stick to medical providers you have seen before and replace the pushy lawyer. Always be honest with your doctors about the severity of damage to the vehicles involved (don't call a fender-bender a high velocity head-on collision, for example).  In fact, at all times be honest about everything. Honesty is the best policy and if you are perceived as honest and trustworthy, by and large you will be treated as such.

At ANDERSON, HEMMAT & LEVINE we can, in one complete and free consultation, evaluate your claim and identify any red-flags that an insurance adjuster may be getting hung up on.  We can also tell you how we will address those red-flags and make sure that they are not insurmountable obstacles to you receiving fair compensation for your injuries. 

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A driver heading straight into an intersection collides with a left-turning vehicle. Police arrive and give the left-turning driver a ticket for taking the right-of-way. You are hurt and leave by ambulance. Your car is totaled. But at least you can take comfort that the insurance company for the at-fault driver will accept responsibility and take care of everything, right? Open and shut case, right? WRONG!!!   Unfortunately, these are some of the most fact-driven, most contentious and generally most difficult cases to prove without impeccable legal work and investigation done early in the process.

Let's talk about proof for a minute. The insurance company for the at-fault driver will not pay for anything out of generosity. They will only pay you IF they feel, in a court of law, you would win. In a court of law, you would need to convince a jury that the weight of the evidence supports the conclusion that the at-fault driver caused the collision. However, if a jury is so conflicted that they are not certain, one way or the other, then the plaintiff (you) loses.    

The problem from a proof standpoint is that people in accidents generally tell wildly different versions of the same story. In this sort of accident, if there are no independent eye witnesses, rarely are these cases winnable. If the driver is making a left turn from a dedicated left turn lane with an arrow, they will simply say their arrow signaled green. If the driver is at a light without an arrow, he can simply say that he was stuck in the intersection when his light went from green to yellow to red. Only after the light turned red did he commence his left turn, right when you ran the red light and caused the accident.  The at-fault drivers are often in contact with the insurance company and even lawyers and often start melding their story from fact to fiction within days of the event. Lastly, even if the police give the left-turning driver a ticket, this is immaterial, because in court this information would be hearsay.  

So what should you do?

First, never assume that police are going to do a complete investigation. Get the names and phone numbers of any witnesses to the accident. If the at fault driver is making statements at the scene that accept responsibility, make sure that witnesses are present to hear it. On most occasions, left-turning drivers mistakenly claim that they turned on yellow, which means they took your right-of-way as an oncoming vehicle also justifiably proceeding on yellow through the intersection. Once they get "lawyered-up" they often change their version of the story to reflect that they commenced their left turn from the middle of the intersection once the light turned red. Getting the driver to commit to the story they are going to tell is very important. Consider asking at the scene that the driver write out a statement for you. Surprisingly, the police do not always get witness names and often neglect, unless prompted, to get the at-fault driver to write out his version of the events. Do your best to coax the police to do a complete investigation if you can.

In conclusion, these cases can be very complex and they require very early intervention, proper scene investigation and most importantly, smart, proactive thinking at the scene. Lastly, never assume that the at-fault driver is going to do the right thing when it comes to owning up to responsibility for causing the crash.

Please remember that at ANDERSON, HEMMAT & LEVINE, we will always talk to you on the telephone about your matter and you can always count on a free consultation.

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