Albany Injury Lawyers

Follow up on underinsured motorist case

Previously I posted on a car accident case involving an underinsured motorist claim. We've made progress on the case. The other car's insurance offered their 50K policy. The underinsurance carrier (my client's insurance company) refused to consent to the settlement. They have now advanced the $50K that would have been paid by the other carrier. Next we will see if they'll pay the other $50K that comes from the underinsurance. They will also have the right to control the litigation against the other car.

They refused to consent because they believe the other driver has significant assets. I expect they will sue the other driver, collect the $50K they advanced from his carrier, and try to collect the $50K they'll pay us from the other driver himself. That's a good reason to have a lot of insurance.

Insurer's duty to defend & right to control

Insurance scrawl has a great post on the insurer's duty to defend contrasted with their right to control the litigation.

Medical Malpractice

I got a kick out of this. We were in Florida, and I had a somewhat embarrassing medical problem that I won't explain. Anyway, I went to a walk-in clinic. The picture shows the sign when you check in. Let's just say this did not inspire confidence. When I went in to see the doctor, the physical examination was not thorough. Also, he said a few things about this condition that struck me as incorrect. I had done a lot of reading on the web, and his suggestions were consistent with the way this condition used to be treated 10 years ago, but research in the last 5 years suggested more effective methods.
I probably should have gone to see another doctor, but the condition got better on its own (as this condition will tend to do).

Winning personal injury cases

Did a personal injury trial this week on a car accident case. We had agreed to a high-low -- the insurance company guaranteed a floor of $20K and we guaranteed a ceiling of $80K. Client suffered a dislocated big toe in the accident, and has continued treating for two years, with surgery about 6 months ago. She has permanent loss of range of motion in her big toe. The offer was $40K. Our demand was $50K.

The jury awarded $30K, so that's what client gets. Is that a win? Doesn't feel like it, but it's better than $20K, and a lot better than if we had gotten zero without the high-low.

All the evidence went in well. Client and our doctor testified very well I thought. Defense doctor conceded some, and I hammered him pretty hard on his status as a professional witness.

One thing about me as a personal injury lawyer. I don't push my clients to settle unless the offer is really good. I like to give them the choice. They get 2/3 of the money after all, and it's their case. Part of the problem is that I like trials and I like rolling the dice.

It's funny playing poker with friends where you might lose $20 or $50 in a night. I lost about $3000 on that trial by not taking the $40K. I had another trial where we rejected $150K, the verdict was $100K, and the judge then dismissed the case (appeal is in process). I lost about $33K on that one (after referral fee). Not yet. I still think we'll win the appeal and get $400K the next trial.

But how am I supposed to get nervous about losing $2-5 on a hand when I blew $33K on that trial?

My wife thinks I should push clients harder to settle. Maybe she's right??

The other issue is time. If you settle cases, you don't spend three days on trial. I try not to think that way. My time is not a consideration as far as the client's interests are concerned.

Explaining pain & suffering damages to juries in personal injury cases

In personal injury trials, the jury has to decide how much money to award for pain and suffering. This is something jurors may not be sure how to do, and can be an opportunity for a good lawyer to explain and persuade jurors in a way that helps the client.

In my dark past, I was an insurance defense lawyer for Allstate. I had a case where the judge had ruled the accident was my client's fault, so that issue was out. Both plaintiffs had fractures from the head-on collision. I made a pitch to the jury about how to award damages. I pointed out that this money is intended to compensate for the suffering, by allowing the plaintiffs to buy things that might bring them happiness.

For a lot of people, food can bring happiness. It might be eating out at a nice restaurant, where dinner might be $25 per person. It might be sitting on your deck at home eating a nice steak from your grill. Or maybe it's a trip to visit family, and that might cost a few hundred.

I suggested to this jury that $10,000 was a good number (we had offered about $40K to each plaintiff), because whatever it is that might bring the plaintiffs happiness, $10,000 would buy a lot of it. If you think about it in that way, $10,000 will buy 400 fancy dinners, 1000 really nice steaks, a bunch of round-trip flights to LA, or even 5 or so very nice weeks at DisneyWorld.

Along with other things I had done at this trial, it seemed to be very effective, as they actually awarded one plaintiff $7500 -- less than the number I had suggested. If figured if they went with me on the theory, they'd award double my number, not less.

Of course, I tried this at another trial and the jury awarded $400K. A juror told me afterwards that she thought a nice dinner was a $500 dinner at a place in Italy. I restrained myself from telling her that $400K would buy 800 such dinners. The good news in that case is that we had agreed to a cap on damages at $100K.

On the plaintiff's side, I use a different approach to this. During jury selection I ask prospective jurors about whether there's an amount they would not go over. There'll always be someone who says they can't award more than $1 million. So I discuss that in detail with that juror, mentioning the $1 million number frequently. Before I'm done I reassure the jury that we're not looking for $1 million (unless we are) in this case. Now they've heard the $1 million number a bunch of times, and it tends to have an anchoring effect (as does the $10K number I used as a defense lawyer).

Another approach that works well in plaintiff cases, and one I think makes sense in general, is to think about what a reasonable person would have to be paid to go through what the plaintiff went through. Imagine there's a job ad in the paper, and it says the job is to be in an accident, and suffer a broken X-bone (X being whatever bone you prefer), undergo Y treatment (surgery, a cast, etc), and endure pain in your Z (body part) every day for the rest of your life. Now, how much would that job have to offer for a reasonable person to decide they want the job? With most personal injury cases, that would be a lot of money.

Of course the reality of being a personal injury lawyer in New York is that most of the time the jury will do the right thing regardless of what we do as lawyers (as long as we don't screw the case up). But we try our best anyway.

Car accidents and Underinsured Motorist coverage

This is something a little different. My client was in a car accident and suffered a broken leg. The other driver pled guilty to a traffic ticket, so we have a strong case on liability. A fracture is a qualifying injury under NY Insurance Law Article 51, and this was a relatively serious one - the femur (the big bone in your thigh). The fracture was "reduced" (fixed) with "open reduction - internal fixation" (ORIF). Meaning they opened his leg up (in surgery) and put a rod in to hold the bone together.

The defendant has a 50/100 policy, meaning there's $50K available to the plaintiff. Fortunately for my client (and me, and the referring attorney), the client has 100/300 SUM coverage. SUM is supplementary underinsured motorist coverage. The 100 is what's applicable here. So if the case is worth more than $50K, we can recover more than the defendant's policy limits by going to the client's own insurer.

In this case it gets more interesting because the defendant apparently has assets. Usually someone with limited insurance is relatively poor, and no one's going to bother going after them. I talked with my client's insurance company today and they did an asset check on the defendant. He owns rental property. That's more than just owning a house, and it may lead our insurer to make a claim against that guy's assets.

This, by the way, is a big lesson for people who aren't familiar with this issue. Make sure you have a lot of coverage. In my mind, anyone with any prospect of having significant income or wealth in the next few years should have at least $100K in coverage. And if you're a lawyer, doctor, etc., you should have a million or more. I have a $1 million umbrella, and am thinking about going to $2 million. Extra coverage is really not very expensive. The difference for the defendant in this case would have been something like $50 to $100 per year to have $100K in coverage. Now it may cost him $50K.

So how does SUM coverage work? First, in this case it's likely that the defendant's insurer will offer it's $50K policy. But we can't just take it. We first have to present that proposed settlement to plaintiff's insurer. They get an opportunity to intervene. I'd like to say I fully understand how this works, but I don't.

As best I understand it, if they want to intervene, they have to put up the $50K offered by the defendant's insurer. Then they can intervene and take over the defense of the case. More likely, they will not intervene, but rather will settle with us and then pursue a claim against the defendant for the amount they have to pay out.

However, as I think about this on the fly, it may be that defendant's insurer would not be able to settle under those circumstances. I don't think it's a problem, but it could be. This stuff gets tricky, and I've never come across this exact situation. Another learning experience.

Accident reconstruction

In most NY car accident cases, the big question is about the injuries. Are they "serious" enough to qualify under NY law? And if so, how much are they worth?

Usually, liability, or fault for the accident is straightforward. The defendant rear-ended the plaintiff. Defendant had a stop sign or red light. Plaintiff had right of way.

In some cases (probably less than 10%), liability is a big question. And in some of those cases, it can be very helpful to have an expert review the facts of the case and reconstruct what happened.

A year or two ago I had a big trial, where I thought we had a lock on fault for the accident. The defendant was driving a dump truck with a trailer attached, and decided to make a reverse three-point turn in the middle of a 55 mph two-lane highway. My client hit the rear corner of the truck with her windshield, got 30 shards of glass in her face, a broken sternum, and had a variety of other problems.
The defense offered an accident reconstructionist, George Ruotolo. He did a good job of explaining to the jury why my client should have seen the defendant from far enough back that she should have been able to stop. My client didn't remember what happened, so she couldn't explain that.

Apparently the jury liked what the expert had to say. Fortunately I had made a deal with the defense for what's called a high-low. We agreed to cap damages at $300K, in exchange for a floor of $50K. The jury zipped us -- zero damages. So we got the $50K. If we had gotten a big verdict, we would have been limited to the 300.

So I've got a new case percolating, and it could be a big one. I can see that liability will be a big issue at the trial. Usually you would wait to hire a reconstructionist, but I know Ruotolo is good. I also know the local insurance claim reps and the local defense attorneys like to use him. So I went out and got him early. They're probably going to want a reconstruction. I figure this way it makes their lives a little tougher.

It also helps to get him involved early because it makes me think about what I need to do to get all our ducks in a row. We met already at the scene and talked afterward, and it helped me figure out some things I want to do, and that I should do quickly rather than waiting for the normal process.

Accident reconstructionists are usually, like Ruotolo, former cops who did a lot of this kind of work when they were cops. He also did a lot of work training other cops. Now he speaks at seminars for lawyers. They review the available evidence, advise the attorney on what other evidence should be available, and work with that evidence to figure out how the accident happened.

Personal Injury trials -- PJI

One thing that comes up in personal injury cases is the "Request to Charge". At the end of the trial, after the lawyers' closing statements, the judge reads a series of instructions to the jury. These instructions are called charges. In essence, the judge explains the law.

Over the years, certain standard instructions have been developed. In New York civil cases, they are contained in a set of books call the PJI -- Pattern Jury Instructions.

The charges explain the concept of negligence, and a variety of detailed issues have been well resolved. For example, in the burned foot case I described in a previous post, my client went into the defendants' house to protect both the house and the child inside.

http://albany-injury-lawyer.typepad.com/my_weblog/2005/12/upcoming_trials.html

That brings up not one but two pattern charges from the PJI. PJI 2:41 covers the standard by which a plaintiff is judged when she acts in an emergency situation to rescue a person. 2:42 covers the standard when the plaintiff is rescuing property. Also, 2:13 covers the foreseeability that a defendant should be aware a rescuer might be injured by their negligence.

Meanwhile, 2:90 discusses the "possessors' liability for condition of land". Here, the defendants are the possessors of the land in question, they left a dangerous condition on their property (a pot of grease under a sparking fan), and plaintiff was injured by the resulting fire.

There is even a charge explaining to the jury the life expectancy of the plaintiff, for their consideration in determining how much to award for future damages. In this case the plaintiff, age 27, has a life expectancy according to the tables of 48.2 years. Hopefully they'll want to award her $10K/year for the next 50 years, but now I'm being unreasonably optimistic.

Upcoming trials

I have a few cases coming up for trial soon. In one case, client was in her house. Neighbor's kid came over and said their house was on fire, and asked for help. Long story short, the parents had left the kids home alone, and they had also left a pot of grease on a stove under a sparking fan. Client tried to help, and ended up getting burning grease on her foot. She's recovered reasonably well from her burns, but we'll see how it turns out.

In the other case, client is a student at a local college. There was a big campus event, and the school had put out balloons tied down with bricks. An unknown person dropped one of these packages off the second level, and it fell, hitting my client on the noggin. He suffered a head injury, including a concussion and a substantial scar on the top of his head. That's coming up soon too.

Some new cases came in too. In the latest, client is a child who was in a vehicle that was rear-ended in a car accident. Kid has a cracked rib. That should walk him in the "serious injury" door of NY's no-fault law.

Uninsured motorist claims

I've got a couple cases pending that deal with uninsured motorist claims. In #1, the accident was in 2001, and the original lawyer never notified the client's insurer about the potential claim. Client was rear-ended by defendant. Defendant says he was hit by unidentified vehicle, and driven into client. Client says that's bunk.
But even though your client says it's bunk, you should notify the client's carrier of the potential claim. I will do so, but the carrier is somewhat likely to say "too late". And they'd probably win that. If a jury decides that defendant is telling the truth, client will be left with nothing. This is why it's important to hire a lawyer who knows what he's doing (and sometimes that's not me).

I have a new case that's somewhat similar. Client was bumped by unidentified vehicle that drove off. Client got pushed into another vehicle, then spun out. A minute later, client was broadsided by defendant. Once I heard these facts from client, I notified the client's carrier of the potential uninsured claim. Odds are we'll get enough from defendant that it won't matter, but you have to cover your bases.

A while back I had an interesting uninsured case. Like the others, it was a "hit and run", except in this case there was no hit - no contact between the vehicles. Under NY law, you need actual contact between the vehicles for the coverage to apply. I suppose I could have gotten the client to lie and say there was contact, but my license is worth more than that. We actually pushed that case because the insurer denied coverage for the wrong reason. I thought we had a shot because of that but we got shot down by the trial judge. Filed an appeal, but finally my wife persuaded me that we were not going to win.

I argued that the denial lacked a "high degree of specificity", as required by General Accident v. Cirucci, 46 NY2d 862, 864 (1979). The insurer relied on Prudential v. Hobson, 67 NY2d 19 (1986), and Killakey, 78 NY2d 325 (1991), and that won the argument.

I also tried to argue that there was enough contact. The unknown vehicle sprayed gravel on client's car as it went by. I argued this was enough under Great Northern Ins. Co. v. Ballinger, 303 AD2d 503, 504 (2d Dept. 2003). In the end, I was probably overzealous on that case. But sometimes when you push that hard it gets you somewhere. It was worth a shot.