Frequently Asked Questions

In a personal injury case where both parties are equally at fault for the car accident, each party will be responsible for 50% of the other driver’s damages.  California is a fault state, which means that the insurance company of the at-fault driver is responsible for the damages caused by their insured.  It also follows the pure comparative negligence system, where a person’s claim for compensation is reduced by the percentage that they are at fault for an accident.

Under these two legal theories, each person who is at fault in a car accident is legally obligated to pay for the other person’s damages.  However, the recovery of each driver is reduced by the amount that they are at fault — 50%. A California personal injury attorney can help to establish that the other driver in a car accident case was 50% or more at fault.

This does not necessarily mean that it is a “wash,” because two drivers in a car accident case may have very different damages.  One driver may suffer far more serious injuries, requiring much more intensive — and expensive — medical care.  Or perhaps one driver has an older vehicle with a low value, while the other drove an expensive sports car.  In these situations, 50% of one driver’s damages will likely be much higher than the other driver’s losses.

For example, Joe and Mary are in a car accident where they are equally at fault.  Joe walks away from the car accident with just a few bruises, but his car — a  2015 Toyota — is totaled.  On the other hand, Mary broke her leg and will be out of work for over a month.  She is a doctor and earns a high salary, so her lost wages will be significant.  Her 2018 Range Rover sustained some damages, but is still drivable.  In this case, Joe may have $20,000 worth of damages, while Mary’s damages could top $100,000.  50% of Joe’s damages is $10,000 — but 50% of Mary’s damages is $50,000.  This demonstrates that even when each driver is equally at fault for an accident, they may receive vastly different amounts of compensation.

If you have been injured in two separate accidents, it is critically important to use the same California personal injury attorney for both of your claims.  In this situation, the insurance companies that represent each at-fault driver will try to avoid paying you compensation by pointing the finger at the other accident as the true cause of your injuries.  Having one skilled and highly experienced attorney to handle both claims will help you put together a coordinated case that maximizes compensation for your injuries.

California is a “fault” state when it comes to car accidents, which means that the person who is responsible for a crash can be sued for medical expenses and other related damages.  In a situation where there were two separate accidents, there are two at-fault drivers, and two different insurance companies (or policies) that may be liable for the damages suffered by the injured victim.

You should never settle one claim and leave the second claim open. Strategically, it is very advantageous to be in court and have the attorneys for the responsible drivers blame each other for having caused your injuries. This creates opportunities for the insurance company’s’ lawyers to make arguments or other strategic decisions that contradict each other.

By using the same California personal injury attorney for both claims, you will substantially increase the likelihood that you will receive maximum compensation for your losses.  Your lawyer can work with medical experts and accident reconstruction experts to determine which injuries are attributed to each accident.  This information will then be used as leverage to obtain the highest settlement possible from each insurance company.

By comparison, if you use two different lawyers — or if you chose to represent yourself — the insurance companies will take full advantage of the opportunity to blame each other for having caused your injuries. This means that you will receive little to no compensation for one of your claims, and that overall, you will receive far less compensation than what you could have received with a highly skilled and experienced attorney fighting for your rights.

California has what is known as a “strict liability” rule for dog bites.  This means that an owner of a dog is responsible for injuries caused by their dog biting another person, even if the dog has never bitten anyone before. In other words, if a dog bites you, the owner is liable — and his or her homeowner’s or renter’s insurance company will compensate you for your injuries.

California has more dog bite claims than any other state in the country. In 2017 alone, California had a total of 2,228  dog bite claims for which insurance companies paid a total of $90.4 million.

Settlements for dog bite cases can vary dramatically. There is no specific average settlement amount. As is typical for the industry, insurance companies will always try to describe the incident in a way that makes the experience and the injury seem like it was not a big deal. However, in all cases, the victim lives through the horror of feeling like they are going to get eaten alive. And then of course, there is the physical trauma associated with medical treatment and in severe cases post-operative care, as well as the emotional trauma that continues to plague victims long after the incident has occurred.

In almost all severe dog bite injuries, an experienced and highly skilled personal injury lawyer can get you a substantial settlement. The compensation will be far more than what you can imagine and significantly greater than what you can negotiate on your own.

Factors that affect the amount of compensation paid by insurance companies for injuries suffered from dog bites include the following: the fierce nature of the dog, the age of the victim, whether the bite disfigures or permanently scars a person, whether nerve damage was caused by the bite injuries, whether past or future surgeries are necessary, whether the victim suffered financial losses from an inability to work, and the manner in which the quality of the victim’s life is affected as a result of the incident. In many instances, the emotional injury suffered by the victim is far more devastating than the physical injury.

In severe dog bite injury cases, an attorney will retain the services of experts such as plastic surgeons or psychotherapists to help establish the severity of your injuries. In the hands of a an experienced and highly skilled personal injury attorney, a dog bite injury claim can settle for a tremendous amount of money.

If you receive Supplemental Security Income (SSI) benefits, it is important to consider how a settlement in a wrongful death case will impact your right to receive these benefits.  SSI benefits are need-based, which means that they are allocated based on your current needs or resources. If your resources exceed the limits set by the Social Security office, then your SSI benefits may be terminated as a result of a wrongful death lawsuit.

In California, a person must have little or no income and few resources to qualify for SSI benefits. Applicants must have no more than $2,000 in resources if they are single, or $3,000 for married couples living together.

It is important to note that beyond financial support, SSI benefits are often critical for recipients in California, as they provide access to low or no-cost healthcare through Medi-Cal, including prescription drugs and treatment at hospitals.  Without the assistance of these government-based benefits, recipients would not be able to obtain the medical care they desperately need.

A highly skilled and experienced California wrongful death attorney can help you obtain a wrongful death settlement and still protect your SSI benefits.  In other words, you can accept a wrongful death settlement and at the same time keep your SSI benefits by using the wrongful death settlement funds to create what is known as a Special Needs Trust.

Special Needs Trusts are created for individuals with special needs who receive government-based benefits such as SSI.  The purpose of the Special Needs Trust is to supplement the government benefits. Therefore, in California you are permitted to receive a wrongful death settlement, and at the same time continue to receive your SSI or other government-based benefits as long as you set up a Special Needs Trust with the settlement funds you obtain from the wrongful death settlement. There are different types of special needs trusts, and the laws, which govern this area are very complicated.  For these reasons, it is all the more important to work with an experienced California wrongful death attorney to make sure that the terms of the settlement allow you to continue to receive your government benefits.

The Internal Revenue Service (IRS) does not tax the proceeds of any lawsuit settlements or awards that are intended to compensate victims for their injuries. Because wrongful death lawsuits are intended to compensate victims for their losses, they are generally not taxable for purposes of federal income taxes. This includes:

• Compensation for burial or funeral expenses
• Damages for lost wages and benefits that your loved one was expected to earn
• Reimbursement for medical bills and expenses incurred as a result of the accident
• Compensation for the loss of companionship, care and other intangible benefits

If you have specific questions about whether your settlement will be taxable, consult with your California wrongful death attorney or a tax professional.

Each personal injury case is unique.  There is no given time where all cases settle, or a guarantee that any particular case will end in a settlement.  However, the majority of civil lawsuits (which includes personal injury cases) settle before trial. Many of these cases will settle at the close of the discovery phase, which includes depositions.

After a personal injury claim is filed in California, the defendant (person who is alleged to have caused the accident or injury) has a set period of time to respond to the complaint.  If the defendant does not respond, the court will automatically enter judgment in the plaintiff’s favor.  The plaintiff is the person who was injured who filed the lawsuit. In most cases, the defendant (represented by an insurance company) will file an answer, contesting most of the plaintiff’s claim. The initial complaint and any answer are known as the pleadings.

After the pleadings have been filed, the next phase of the pre-trial process begins: discovery. This involves an exchange of information between the parties, with each side attempting to gather facts and evidence to support their claim. Attorneys for each side use a variety of methods in the discovery process, such as interrogatories (written questions), requests for admission, requests for production, and depositions.  A deposition is a questioning of another party or witness, taken under oath, and recorded for later use at trial.  Discovery is generally the longest part of the litigation process.

Once discovery is complete, including depositions, lawyers for each side will have more facts and evidence about the case.  This may reveal strengths and weaknesses in one or both parties’ claims that will enable a settlement.  In some situations, even after depositions have been completed, the case will move forward to trial.  While depositions are important and may lead to a settlement, they will not necessarily resolve a case.

If you are involved in a car accident with a LYFT driver — either as a passenger or in another vehicle — you can file a lawsuit against LYFT. In California, the law requires rideshare companies such as LYFT to provide commercial insurance policies for their drivers.  As a result, if a LYFT driver was responsible for causing an accident, then you can access LYFT’s insurance policy, or file a lawsuit against the company.

California law requires LYFT to have a commercial liability policy that provides coverage up to 1 million dollars per incident for bodily injury or property damage to passengers or third parties that are in a crash with a LYFT driver.  This policy is in effect whenever a driver has a passenger in his or her vehicle, or when the driver has accepted a passenger and is en route to pick up the passenger.  In addition, when a passenger is in the vehicle, LYFT must provide an additional 1 million dollars in coverage for uninsured and underinsured motorist coverage.  If the driver does not have a passenger, but has the app open and is waiting for a passenger, then LYFT must provide coverage of $50,000 for death and personal injury per person, $100,000 for death and personal injury per incident, $30,000 for property damage, plus minimum coverage of $200,000 in liability insurance for the driver.

However, if a driver is on his or her own time, then you can only recover from the driver’s personal insurance policy.  This insurance may include minimal coverage under California law, which requires only $15,000 for death or personal injury per person, $30,000 in damages per accident, and $5,000 in property damage.

The short answer is “yes”.  After an accident, you may be feeling overwhelmed as you deal with the trauma of your injuries and the stress of handling the financial and legal aftermath.  It can be difficult to choose something as important as a lawyer.  You may have signed a retainer agreement or a contract with an attorney, believing that he or she was the best choice, only to have communication break down or decide that you are simply not happy with your representation.

Fortunately, California law permits you to terminate your contract for legal representation.  Also, you are not prohibited from changing lawyers.  California law allows you to terminate the services of one lawyer and immediately upon doing so retain the services of another.

Most if not all capable personal injury lawyers work on a contingency fee basis, which means you will not pay any money up front and your lawyer will not receive a fee until after your case settles.  Therefore, if you decide to terminate the services of your lawyer, he or she will be entitled to get paid for the work they performed on your behalf but not until after your case settles.

For example, if you retain an attorney and then later decide you want to terminate that attorney because you want to hire a different lawyer, you then become obligated to pay the amount of attorney fees charged by your new lawyer.  Your new lawyer then pays the terminated lawyer for the value of his or her services and this payment is made from your new lawyer’s attorney’s fees, not from your share of the settlement. In other words, you pay one attorney fee, and that attorney fee is divided between your new lawyer and the old lawyer, with the lawyer that performed the majority of the work taking the majority of the attorney fees.

Your new lawyer will have you sign all of the paper work necessary to terminate the contract with your former lawyer.  Once you sign that paperwork, the former lawyer and his assistants are prohibited by law from having any further contact with you.

Also, if after you hire an attorney you decide that you no longer want legal representation, you can send a basic letter to your lawyer directing him or her to immediately stop working on your case. Of course, you should ask for your complete files and records, as you are the owner of your file and your lawyer is obligated to give you your file even though you did not pay them yet.

If you terminate your lawyer and do not hire another attorney, your old lawyer will have a right to place a lien on your claim.  This means that you will owe your former attorney for the work they performed prior to the termination of your contract.  Again, your lawyer will not be entitled to have his lien paid until after your case settles and the amount of his compensation is negotiable.

If you are considering switching lawyers, consult with a seasoned personal injury attorney to discuss your rights and options, including how terminating your present lawyer will impact your case.

Generally, a hospital cannot be sued for a misdiagnosis.  Doctors or other medical professionals are usually the only parties that can be held liable for a misdiagnosis.  In some cases, if a doctor or other medical professional is an employee of a hospital, the hospital may be sued.

A misdiagnosis occurs when a doctor fails to recognize symptoms of an illness, and attributes them to another illness.  It can often allow the untreated sickness to become worse, often leading to more serious or even life-threatening symptoms. Misdiagnosis often occurs when a doctor fails to screen for a particular medical condition, misinterprets test results, or fails to refer a patient to a specialist.

To file a lawsuit based on a misdiagnosis, a seasoned California medical malpractice attorney must demonstrate three things.  First, he or she must show that a doctor-patient relationship existed.  Second, the lawyer must prove that the doctor did not provide treatment in a reasonably skillful and competent manner.  Third, he or she must demonstrate that the misdiagnosis caused harm to the patient.  For example, if a misdiagnosis of cancer made the illness untreatable, that is a clear example of harm.

Under California law, the statute of limitations  for medical malpractice claims is one year from the date that the plaintiff knew or should have known about the injury or three years from the date of the injury, whichever is earlier.  The statute of limitations is the time period that a person has to file a lawsuit.

Yes.  Ambulance transport companies are private companies, and in the state of California, they can be sued like any other company.  However, there are different types of claims that can be brought against these companies and the standards of proof differ based upon the type of claim that is filed.

For example, emergency first responders such as emergency medical technicians (EMTs) and the emergency transport companies can be sued for general negligence when they are involved in a motor vehicle accident.  The standard of proof for these types of claims is ordinary negligence, which is the same standard applied to any motorist involved in a motor vehicle accident.

Emergency first responders such as EMTs and the emergency transport companies can also be sued for their failures to act, and for their failures to act in good faith when responding to emergency calls.  In these types of claims, the standard of proof for recovering damages is different.  In order to win your case, you must prove “gross negligence” rather than ordinary negligence.

Gross negligence is either the lack of any care, or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. In order to prevail in a lawsuit against the EMT and the emergency transport company, you need to prove that the acts or omissions performed by the EMT and transport company were carried out in a grossly negligent manner, or that the acts or omissions performed by them were not performed in good faith.

These types of claims are more difficult to establish because the California Legislature wants to encourage EMTs, registered nurses, firefighters, police officers and other emergency first responders to render medical services during emergencies without fear of being sued.  This makes these cases more challenging.  However, with the assistance of an experienced and highly skilled personal injury attorney, it is possible to recover damages in a lawsuit involving emergency first responders such as EMTs and emergency transport companies

Yes.  As described above, health insurance companies who pay your medical expenses for an accident that was caused by someone else have a right to subrogation.  Under California law, your insurance company may be entitled to part of your settlement if it can prove:

• the insurance company suffered a loss for which the defendant is liable;
• the claimed loss was one for which the insurance company was not primarily liable;
• the insurance company has compensated the accident victim in whole or in part for the same loss for which the defendant is primarily responsible;
• the insurance company has paid the claim of its policyholder to protect its own interest and not voluntarily;
• the insurance company has an existing cause of action against the defendant which the accident victim could have asserted for its own benefit had it not been compensated for its loss by the insurance company;
• the insurance company has paid money caused by the liability of the defendant;
• justice requires that the loss be shifted from the insurance company to the defendant; and
• the insurance company’s damages can be calculated, generally the amount paid to the accident victim.

However, there are some limits to an insurance company’s right to subrogation.  The California civil code limits what an insurance company can recover from your settlement to the lesser of (1) the cost of medical services; or (2) a percentage of the total settlement. The calculations used to determine this amount can be complex, and depend on factors such as whether you were represented by an attorney.

In addition, the “Made Whole” doctrine provides that you must be made whole (compensated for your losses) before the insurance company can seek reimbursement. This typically comes up in cases where the responsible party does not have enough insurance to cover your losses.  Importantly, your insurance company can require you to waive the right to be “made whole” as part of your contract.

Finally, the Common Fund Doctrine makes insurance companies pay part of the money that it recovers to your attorney if it does not have its own lawyer.  In other words, because it was your California personal injury lawyer who did the work on the case to recover compensation, it is only fair that the insurance company should pay part of your attorney’s fee.  The amount that they will be required to pay will depend on what percentage of the settlement or award is attributable to attorney’s fees.

For example, imagine that you received a settlement for $100,000, and your insurance company paid $25,000 in medical expenses (25% of the settlement).  A standard attorney’s fee of 30% means that your lawyer will receive $33,000 in fees for their work.  The insurance company is responsible for 25%, or $8,250 of the attorney’s fees.  This reduces the amount of attorney’s fees that you will be required to pay by $8,250.

Posting on social media while a personal injury claim is pending can be incredibly damaging to your case.  Even a seemingly-innocent post, such as checking in at a gym, can cast doubt on your claim that you are injured.

Many of us use social media in a specific way: to highlight the best parts of our lives.  This tendency can be harmful in a personal injury case, as insurance companies will often look at your Facebook, Twitter and Instagram accounts for any evidence that you may not be suffering from the injuries that you have claimed.  For example, if you post a picture of yourself hiking in the woods, an insurance company may use that as proof that a back injury from a slip and fall was not as severe as claimed.   Similarly, if you talk about your accident online, those statements can be used against you.

Under California law, social media postings are admissible are admissible in court.  Both your own posts, if you are a party to the case, and the posts of family and friends, if they contradict your testimony, can be admitted into evidence.  For this reason, social media posts can be damaging to your case.

The best course of action is to avoid posting anything about the accident or your case, posting any new pictures or videos of yourself, or responding to new friend requests or messages from unknown people.  Doing this will help to protect your case while allowing you to still engage on social media.