Audit Your Auto Insurance Policy. . . . .You Very Well Might be Underinsured

Posted on September 18, 2009 by Dylan Pollard

In California, you can legally drive a Chevy Suburban, but state law only requires you to carry $15,000/$30,000 liability insurance. Where is the sense in that? Your vehicle is capable of wreaking havoc in even the most minor of accidents.   Moreover, if you cause a serious injury because of your negligence, and are “judgment proof,” as many people driving on California roads are, there is a very low likelihood that the person you hit is going to be adequately compensated from your minimal insurance policy. Put the shoe on the other foot. What if you are walking to dinner, and struck in a cross-walk by an inattentive person driving their brand new Cadillac Escalade carrying the minimum insurance required by law, and you sustain a broken femur. Is $15K going to adequately compensate you for the months of physical therapy you will have to undergo to rehabilitate from that injury? What if you have to take of months of work? You would be seeking your loss of earnings from that same $15,000 policy.

One of the more frustrating (and sometimes heartbreaking) things that I often come across representing catastrophically injured parties is either the total lack of uninsured motorist (UM) coverage or totally inadequate limits, such as a $15,000/$30,000 UM policy.  I think back to a recent wrongful death case where the plaintiff’s decedent was struck by an underinsured SUV that ran a stoplight, and the family had only a $15,000.00 insurance policy to chase. They ended up losing their home because there simply was not a viable defendant to pursue for that loss.

What is even more frustrating to me is that consumers are unaware of the relatively low cost to “up your coverage.” Oftentimes, for less than another$60- $100/year in premiums, you can purchase 100K/100K UM coverage or even higher. I actually recommend carrying at least 500/500 UM coverage if you drive in California. There are many uninsured drivers out there. Remember, it is your responsibility to protect yourself in advance. Think about what kind of money you would need to tide your life over while you recover from a major injury if the person who injures you is uninsured/underinsured. Even the most aggressive personal injury plaintiffs’ lawyer will not be able to extract blood from a turnip if there are inadequate assets to pay a judgment.

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Personal Injury Cases - Comparative Fault Extends to Negligent Medical Treatment

Posted on August 3, 2009 by Nancy Gardner

In a recent case that affects every personal injury attorney, a California appellate court held that the defendant in a premises liability case should be allowed to put on evidence that the plaintiff’s injury was made worse by medical malpractice and that non-economic damages should be apportioned accordingly.

Henry v. Superior Court (2008) 160 Cal. App. 4th 440, held that Civil Code section 1431.2 (Proposition 51) limits an original tortfeasor’s liability for non-economic damages to those directly attributable to his or her own fault. Where a plaintiff is further injured by medical negligence and where the damages can be divided by causation into distinct component parts, liability for each individual component part may be considered separately. 

In Henry, a swimming pool contractor suffered an injury to his shoulder when he fell at a homeowner’s property. The contractor sued the homeowner. At trial, the homeowner attempted to put on evidence that the contractor’s injury was aggravated by Kaiser’s medical malpractice. Kaiser was not a defendant. The court preclued the evidence o f Kaiser’s negligence and the defendant homeowner filed a writ of mandate. The court of appeal reversed holding that “the homeowners, if negligent, were solely responsible for the initial injury; liability for the indivisible enhanced or aggravated injury, however, was properly apportioned between them and the hospital’s physicians in accordance with the rules of comparative fault and Civil Code section 1431.2”.   

This ruling has implications for every aspect of personal injury practice including case selection, identification of defendants, discovery and trial presentation.

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