Washington Injury Lawyer Blog

We all know the absurdity of not being able to mention insurance at trial, but at least a majority of perspective jurors know that the defendant wouldn't be there if he didn't have insurance. Although I'm not sure that jurors realize that defense counsel is usually a staff employee of the insurance company.

But after listening to jurors during voir dire during my last trial, and talking with them after the verdict, they really think the plaintiff was the one who decided to "go to court!". This particular plaintiff went to court because the insurance company hardly offered anything to settle the case. Then after we proceed to arbitration and get a very reasonable award, the insurance company appeals the award and we're off to a jury trial. But we can't mention settlement offers or the lack of, or that there was an arbitration and it was the multi-billion dollar insurance company that decided to "go to court". I hear jurors that have had injury claims say, "but my claim was settled, we never went to court." Well, good for you! You got lucky apparently and dealt with a reasonable insurance company. But guess what, my client didn't. She doesn't want to be here, she wanted her case settled to. But the plaintiff turns out to be the bad guy for being ostensibly greedy and taking her case to court.....

We should be able to talk about the arbitration system, and how insurance companies have completely bastardized it and made it a joke. They don't care if they are subject to some extra attorney fees sometimes, they don't care how much experts cost, they don't care about any trial costs in general. It's David vs. Goliath, and we can't talk about Goliath. There has to be some way to address these issues, and before my next trial I'll be working on that solution. I'm not sure if it's through appropriate motions in limine or voir dire questions that don't cross, but maybe skirt some fine lines.

I've never opened up a blog post to comments, but think this is a good one to start with. If anyone has any ideas on how to handle these situations, please let me know.

Judge Cowsert, who has been on Snohomish County Superior Court bench since 1999, retired last Friday. I was fortunate to have tried the last case before Judge Cowsert with a verdict coming in last Wednesday. Judge Cowsert has been one of the bright lights on the Snohomish Superior Court bench and we can just hope that his replacement will be able to fill his shoes. During the trial Judge Cowsert was exceptional. He made very well reasoned rulings, was accomodating and respectful of all parties and counsel, and perhaps most importantly, let us try the case. Best wishes in retirement.

To read more about Judge Cowsert and his retirement, click here.

For months now I have been sending clients a letter warning them of the perils of using social media. Honestly, very little good can come of it. Like many things in life, words and pictures can be taken out of context. Although there are certainly things posted on Facebook where the context is very clear! What happens in Seattle, should sometimes stay in Seattle.... Regardless of whether or not a person is engaged in litigation, why in the world would you want to post so many private details for the entire world to see. I suppose there is some physiological reason for it that I'm not bright enough to figure out. Although I'm sure that John Smith's exciting night out in Everett was quite something to see....

So how do you handle an interrogatory like this one?

Within the last ten years have you created, maintained, or posted a listing in/or have an account with Facebook, LinkedIn, YouTube, Twitter, MySpace, Word Press, Blogger or any other social networking or blogging device, application, or services? If so, identify:

a) The website address;

b) Your name, email address, log-in and/or user identification for the site;

c) Your Password;

d) Any other necessary information to obtain access to the site;

e) Whether you were previously "friends" or otherwise linked to the profiles of _________ and _________; and

f) The names of any other individuals who have allowed you to access to their passwords and accounts on such websites.

ANSWER:

Ok, and the answer is...OBJECT! There is no way in hell I would provide this information short of a Judge telling me to provide it. Instead of asking for bank statements, I guess the defense is just going to ask for your online banking username and password. How arrogant must one be to send out a rog like this? (Rhetorical question...) Clearly this interrogatory is unduly burdensome and overly broad:

Objection. The request is unduly burdensome, expensive or oppressive in that it would require undue expense, investigation, research, or compilation of information in the possession of non-parties equally accessible to the parties.

I believe that the only information they should have access to is public information. If it's a public Facebook or Twitter post, go for it. They don't need you to provide it. They can go get it themselves. If they want your client's private posts, well they better have some basis as to how this information is reasonably calculated to lead to admissible evidence and isn't just an overly broad fishing expedition.

If we are going to reign in these oppressive discovery tactics, we need to take it on with full force. Don't agree to anything like this and make the defense fight for it. They can fight these little skirmishes while we win the war.

Subrogation, or in other words, the repayment of medical and wage loss benefits to a health insurance carrier, PIP carrier, Medicare (ugh) or L & I is a subject that could take up an entire edition of The Everett Herald, or for that matter, the Seattle Times. But I'll try to make my point and move on.

Prior to the decision in Tobin v. Department of Labor and Industries, 165 Wn.2d 1016, 199 P.3d 411 (2009), DLI always calculated the amount of reimbursement it is owed by including the entire amount of the settlement/verdict which included general damages. I.e. compensation for pain and suffering. Well, the problem with that was that DLI was getting reimbursed out of compensation received for a benefit that they don't provide. So the Tobin Court reined them back in and said that the Department can only be reimbursed for benefits paid. So the Department could not get reimbursed out of a claimant's recovery for pain and suffering and could not use it in the distribution calculation under RCW 51.24.060(1).

To put it politely, the Tobin decision has ticked off the Department. I guess they think this is something new the court invented. But it's not. In Southwest Fiduciary, Inc. v. AHCCCS, 1 CA-CV 10-0300/10-0301, (2011), the Arizona Court of Appeals, Division 1, came to a similar conclusion. The Arizona Health Care Cost Containment System (AHCCCS) had been claiming a lien upon the entire recovery of the claimant, just like in Tobin. The Arizona Court of Appeal clarified and stated that in the context of a tort settlement, AHCCCS's share should be calculated based upon the amounts it has paid.

From my perspective, the Tobin decision doesn't limit the recovery that DLI gets, but allows a claimant to actually keep compensation for pain and suffering that they deserve. So until DLI starts to compensate claimants for pain and suffering and other general damages, they just need to relax and back down.

Posted by John Williams of Williams Law Offices, PLLC.

Date: July 5, 2011
Del Mar, California
FOR IMMEDIATE RELEASE

Contact
John Meade Williams
Williams Law Offices, PLLC
2825 Colby Avenue, Ste 302
Everett WA 98201

PRESS RELEASE
Telephone: 425.252.8547
Firm website: www.williamslawpllc.com
The Million Dollar Advocates Forum is pleased to announce that attorney John Meade Williams of Everett, Washington, has been certified as a life member of both the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates Forum, www.milliondollaradvocates.com.

The Million Dollar Advocates Forum is recognized as one of the most prestigious groups of trial lawyers in the United States. Membership is limited to attorneys who have won million and multi-million dollar verdicts, awards and settlements. The organization was founded in 1993 and there are approximately 4000 members located throughout the country. Fewer than 1% of U.S. lawyers are members. Forum membership acknowledges excellence in advocacy, and provides members with a national network of experienced colleagues for professional referral and information exchange in major cases. Members of the Million Dollar Advocates Forum must have acted as principal counsel in at least one case in which their client has received a verdict, award or settlement in the amount of one million dollars or more.

Members of the Multi-Million Dollar Advocates Forum must be Life Members of the Million Dollar Advocates Forum and must have acted as principal counsel in at least one case which has resulted in a multi-million dollar verdict, award or settlement. Mr. Williams has been approved for membership in both the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates Forum.

John Meade Williams is a graduate of University of Toledo College of Law. His practice is focused on serious personal injury and wrongful death, also representing individuals in insurance bad faith claims.

Unfortunately, this blog entry was prompted because of a current client's experience with a body shop. When your car is damaged in a crash, you get it repaired at a body shop. Sounds simple, but depending on your body shop and other factors, you could end up having a very unpleasant experience. It doesn't matter if you're in Seattle, Everett or Arlington, when it comes to body shops, there are good ones and bad ones. So it's vitally important to make sure that you choose a reputable shop that does very good work. (On a quick side note, you are under no obligation to use a shop recommended by an insurance company) The best way to locate a reputable shop is through a referral from friends and family. But even then, make sure that you like the shop. Does it look professional or is it a guy working out of his garage?

Next, if an insurance company is paying for the repairs, DO NOT sign the insurance check until your car is completely repaired and you have thoroughly inspected your car to make sure you are satisfied with the work. Only then do you sign the check and give it to the body shop. If a body shop wants you to sign the check prior to starting work, immediately go to another body shop. If you sign the check before the repairs are completed, you are at the mercy of the body shop.

When you are in a car crash and your car is either damaged or totaled, you have an immediate problem. At the very least, you car is drivable but damaged, or damaged beyond repair and a total loss. Assuming you have collision coverage on your car, who pays for the damage to your car? Perhaps a better question is, who do you want to pay for the damage to your car? In most cases, I recommend that you go through your own insurance company and use your own collision coverage and rental coverage. Many people don't consider using their own insurance coverage since the accident wasn't their fault, but there are potential pitfalls when going through the at fault person's insurance company. First, you are at their mercy. If they handle the claim slowly and treat you like a second class citizen, there isn't much you can do. But if you are going through your own insurance company, you are their insured and they owe you significant duties when handling your claim and as such, you will get better service and better treatment. Second, especially in a total loss situation, you will likely obtain a better total loss offer from your own insurance company and they will be more likely to work with you to resolve the claim to your satisfaction. Your own insurance has an obligation to treat you fairly and reasonably, the at fault parties insurance company has no such obligation.

If you have any questions, feel free to contact me at 425-252-8547 or John@williamslawpllc.com

(Continued From Part One)

I believe that most “accidents”, or better stated, most car crashes/collisions, are completely preventable. When another driver slams his car into the back of your car, was he on the phone? looking for new music on his IPod? looking at the “accident” that occurred on the other side of the road? The list goes on and on. But the link between all of these reasons, is one of conscious choice, conscious decision. The driver that slams into the back of you, that runs the red light, that turns left in front of you, all made a conscious decision to do something other than paying complete attention to their driving. If your main focus while driving, is driving, I believe that the likelihood of you being involved in a car crash which is your fault, is slim to none. And as my Father used to say, Slim has left town.

Don’t we all have a duty, a moral obligation to ensure that while we are driving, we do not engage in an activity that could possibly result in injury to fellow drivers? I think so. So the next time we hop into our cars, why don’t we do something novel here in the Puget Sound area, lets focus on driving and getting to our destination without injuring ourselves or anyone else in the process.

Yes, I've been saying it for years, but I'm not sure why. Car "accident", truck "accident", motorcycle "accident". I think it's just learned habit, but probably not correct. Webster's Dictionary defines accident as:

Main Entry: ac·ci·dent
Pronunciation: \ˈak-sə-dənt, -ˌdent; ˈaks-dənt\
Function: noun
Etymology: Middle English, from Middle French, from Latin accident-, accidens nonessential quality, chance, from present participle of accidere to happen, from ad- + cadere to fall — more at chance
Date: 14th century
1 a : an unforeseen and unplanned event or circumstance b : lack of intention or necessity : chance (met by accident rather than by design)
2 a : an unfortunate event resulting especially from carelessness or ignorance b : an unexpected and medically important bodily event especially when injurious (a cerebrovascular accident) c : an unexpected happening causing loss or injury which is not due to any fault or misconduct on the part of the person injured but for which legal relief may be sought.

An unforeseen and unplanned event? An unfortunate event resulting from carelessness or ignorance? Maybe. An unexpected happening causing loss or injury which is not due to any fault or misconduct? I just don't think that slamming your car into the back of another car on I-5 in Seattle or Everett, is unforeseen, unplanned or not due to any fault. I suppose that's my problem with the term accident, it really infers that no one is at fault, it was just an accident. If you just slammed your car into the rear of another car, it sure sounds like you're at fault....

(Part Two to follow)

Here's an interesting AP story which I think really shows what motivates Allstate Insurance:

NEW YORK (AP) — Allstate Corp. CEO Thomas J. Wilson received total compensation valued at $10.4 million in 2009, up about 30% from a year earlier, according to a regulatory filing.

The pay raise for Thomas Wilson came as the property and casualty insurer stanched steep investment losses to help post a profit for the full year. Wilson had earned $7 million in the previous year, according to an Associated Press analysis of a filing with the Securities and Exchange Commission.

In 2009, Wilson earned a base salary of $1.1 million, which was an increase of 6 percent. His performance-based compensation was $1.7 million, more than double the $736,261 he got in 2008.

Wilson also got stock and options worth $6.5 million when they were granted, compared with $5.2 million in 2008.

His other perks and compensation totaled $68,072 and consisted of $23,154 for personal use of a company plane and $9,800 in matching contributions to a retirement plan. The remaining $35,118 was for miscellaneous items including life insurance premiums, cell phones, tax preparation, financial planning, security, ground transportation and supplemental long-term disability coverage.

For 2009, Allstate said better risk management in its investment portfolio helped it earn $854 million, or $1.58 per share, compared with a net loss of $1.68 billion, or $3.06 per share, in 2008.

In the final quarter of 2009 alone, Allstate posted a profit of $518 million, or 96 cents per share, a great improvement over its a loss of $1.13 billion, or $2.10 per share, in the period a year earlier.

Allstate's operating income, which excludes investment gains and losses, rose 14 percent to $592 million, or $1.09 per share, versus a profit of $518 million, or 96 cents per share, a year ago.

You have to love those Group Health commercials touting how great it is that a patient can actually email their doctor. Traditionally, the information contained in a patients medical record was dictated by the doctor into their record as the result of a face to face consultation, or sometimes from a phone note if you called in. The information that made it into a medical record as a result of a consultation, for the most part, is usually factually correct and a true representation of what the patient told the doctor.

However, email is a different animal. How many times have you either sent, or been the recipient of an email that was interpreted differently than what the sender intended? In conversations, there is tone and inflection that allow the recipient to clearly understand your mood etc. Are you conveying that you're upset, angry, happy, sad or maybe you're throwing in a bit of sarcasm. Without tone and inflection, it's up to the recipient to fill in the missing blanks, and often they get it wrong. And then you end up attempting to explain that their interpretation isn't what you meant and that they took it completely wrong.

Now lets take those emails (or letters and diaries for that matter) that you sent into your doctor and they are now in the hands of an insurance defense lawyer because you were in an auto accident or otherwise injured due to the fault of another person. Do you think that the defense lawyer can interpret your email to suit his or her purpose? You bet they can. And then you are put in a position where it appears you are either contradicting what you wrote or trying to explain what that email really meant.

I am sure that the ability to email your doctor can be valuable, but be cautious and understand the pitfalls that can occur with that type of communication. Also, remember that this applies to not only email, but any type of written correspondence, even a diary you may keep regarding your injuries.

If you are injured by a defective product, please be sure to save the product and not throw it away or otherwise get rid of it. This may sound like common sense, but after a person sustains a serious injury from a defective product, the last thing on their mind is essentially preserving evidence. But without the defective product, it is very difficult, and sometimes impossible to proceed with a products liability claim.

In a recent unfortunate case, a young man was severely and permanently injured by an airbag. He was a passenger in the car of a friend. Because of the severity of his injury, he and his family were focused on his car and multiple surgeries. However in the meantime and before I was contacted, his friend's car was totaled and sent off to the salvage yard. And unfortunately for his products liability claim for the defective airbag, without the car and without the airbag, there was simply no viable claim to pursue.

So with any products liability claim, please ensure that the product is saved and contact an experience products liability attorney immediately to ensure that all necessary steps are taken to preserve the claim.

It's tough enough riding a motorcycle in the Seattle area and just trying to avoid being the next victim of an inattentive driver. The drivers of cars out there on cell phones or texting, well that's not a hidden danger, so what is it? It's their insurance companies and adjusters. So after you've been knocked to the pavement and your bike totaled, it just keeps getting worse. Accidents that clearly would be the other persons fault if two cars were involved, now transform because you are a motorcyclist! Insurance adjusters will do whatever they can to come up with some "comparative negligence" on your part. That essentially means that you're a percentage at fault because of x, y or z. I have seen them allege that inexperience played a role and if you were more experienced, you would have been able to avoid the accident. That's a good one they can apply to most all motorcycle accidents. They like to allege you were speeding, acting reckless, tailgating, you didn't use a signal, or you did a quick lane change and the driver didn't see you....they just keep coming.

It is always important to try and document the accident scene, but even more so if you are driving a motorcycle. Take pictures with your cell phone, ensure that the police are called and if you aren't being taken away in an ambulance, ensure that the officer clearly understands how the accident occurred. Do not assume that the other driver's story matches yours. Unfortunately, too many people get creative after they are in an accident. Be vigilant and hopefully you will never need this advice.

Whether your driving in the Seattle or Everett area, please feel free to contact me with any questions or for advice.

Insurance agents have the remarkable ability to know very little about the product they are selling, or at the very least seem to do a poor job of explaining coverages to their customers. Yes, I know that there are good agents out there, I have one of them at PEMCO in Seattle, but unfortunately that isn't always the case. One of the biggest misconceptions is that if you are in an accident that isn't your fault, the other persons insurance company will pay for your medical expenses. Well, this is half true. When the other persons insurance company settles the claim with either you or your attorney, the settlement will include your medical expenses. But that doesn't help you if you do not have the ability to pay for necessary medical care now. So what's the answer? PIP

Personal Injury Protection (PIP) is a coverage available in Washington that insurance companies must offer you, and if you reject it, you must do so in writing. PIP is basically health insurance if you are injured in an auto accident. It will pay for your medical bills which are "reasonable, necessary and related" to injuries sustained in a car accident. PIP will also, to a limited extent, pay for lost wages and also household services.

PIP is considered a no-fault coverage which means it is available to you regardless of fault. PIP will pay for your medical bills whether or not you are at fault for an accident. Many clients have expressed to me how it seems wrong that their own insurance company should have to pay for medical treatment caused by injuries from an accident that wasn't their fault. Don't worry, your insurance company will get repaid (subrogation).

If you do not have PIP, please have it added to your policy immediately. It costs very little and is vital, especially if you do not have any health insurance. Even if you have health insurance, consider PIP since it will cover many types of care that may have limited coverage under your health insurance policy, such as chiropractic, massage and acupuncture treatment. PIP is generally available with limits of $10,000.00 or $35,000.00.

If you have any questions regarding PIP coverage or insurance coverage in general, please feel free to contact me.

For years now I have been trying to convince people to keep a camera in their car. If you come across something scenic or interesting in Seattle or Everett, you can take a picture, but more importantly, if you are in an accident you can document the scene. When I first started telling people to keep a camera in their car, I'm sure some people thought I was crazy. To some extent, I thought it may be a bit much. But now, more and more of my clients are coming to me with pictures in hand of the scene of the accident! Sometimes they use a camera, but often they simply use their cell phone camera.

So what's so great about pictures of the accident scene or damage to the car? Well, without photos, we have to rely on either a police report diagram, statements of the each driver and/or eyewitnesses, if any. Unfortuantely, eye witness testimony is generally not very credible or accurate, and while police officers do a great job, there are certainly times when the police report and diagram miss the mark. And perhaps the most important reason to document the scene of the accident with photos, is that the at fault driver often times leaves the scene and magically creates new facts so he or she isn't at fault. This is just an unfortunate bit of reality.

So, keep a camera with you and protect yourself. Consider it insurance against changing stories and facts.