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Serious car, truck, motorcycle, bike, pedestrian and other motor vehicle accidents require the guidance of an experienced attorney. At Spital and Associates, we have an impressive track record representing clients who have suffered injuries in a wide variety of accidents. We will work with your physician(s) and other health care provider(s) to determine the short and long-term future of your injury. Our detailed understanding of insurance and liability laws means we understand the different sources of recovery available to you and your family as well as the various theories of liability that enable you to collect from the parties who caused them harm.
To learn more about auto defects and auto safety, click this link National Highway Traffic Safety Administration (NHTSA). Another great web site devoted to research and vehicle ratings is the Insurance Institute for Highway Safety.
Seat Belt Defense Law
Introduction
Seat belts have been widely accepted since the enactment of federal and state laws requiring automobile manufactures to provide seat belts in vehicles. Recent studies indicate that approximately two-thirds of all drivers in the United States use their seat belts each time they drive or ride in an automobile. However, despite the increased use of seat belts, millions of people have been injured every year in auto accidents in the United States and tens of thousands are killed every year. Seat belt usage has greatly influenced recoveries in personal injury cases because courts and juries continue to attribute legal significance to a plaintiff's failure to use a seat belt by assigning contributory negligence therein. This is more commonly known as the "seat belt defense."
The History of the Seat Belt Defense
The prevalence of seat belt use dates back to the 1950's when seat belts were first installed in automobiles. Nonetheless, seat belt use was minimal during the following decades.
In 1966, the U.S. Congress finally came to terms with the need for regulations to promote safety on American highways and passed the National Traffic and Motor Safety Act, which in turn created the National Highway Traffic Safety Administration (NHTSA). Nearly twenty years later, in 1984, NHTSA issued "Standard 208," which provided that unless at least two-thirds of states passed mandatory seat belt usage laws, all new cars beginning with 1990 models would have to be equipped with automatic restraints, such as airbags. Further, Standard 208 mandated that every state had to adopt the seat belt defense, either by enacting legislation or through judicial action. Since 1984, every state except New Hampshire has enacted mandatory seat belt use laws.
National seat belt use has dramatically increased since the enactment of Standard 208. It cannot be disputed that those wearing seat belts at the time of a car accident have sustained less severe injuries than those who had not done so. Generally, drivers are now aware that seat belt usage will greatly decrease their chances of sustaining injuries if involved in an accident. Therefore, most Americans "buckle up," not only as an attempt to protect their own lives, but also to comply with state laws requiring seat belt use. The seat belt defense becomes an issue when the defendant-driver attempts to offer evidence of the plaintiff-victim's failure to use a seat belt as a defense to the plaintiff's claim.
Most often, the seat belt defense is used by defendant-drivers to show: 1) the plaintiff-victims contributed to the severity of their injuries by not using a seat belt; and 2) the plaintiff-victims failed to mitigate damages. The defendant-drivers are trying to show that their actions alone did not cause ALL of the injuries plaintiff-victim is claiming and, therefore, they should not be held solely responsible for all of the injuries suffered. Also, the seat belt defense has been used to show that the plaintiff-victim did not take all reasonable steps to secure his or her own safety, therefore, any damage award should be decreased to reflect the failure to minimize the damages.
In some states, however, evidence offered to show that the plaintiff-victim failed to use a seat belt at the time of the impact has been held to be inadmissible in court. Courts have decided that the party responsible for causing the accident is responsible for all of the injuries caused by his/her conduct. That is, in the case of a car accident, the injuries suffered by the plaintiff-victim would not have occurred in the absence of the defendant-driver's conduct. Thus, because the failure to use a seat belt did not cause the accident, the plaintiff-victim's seat belt usage is irrelevant to the cause of the accident. Non-compliance with state mandated seat belt laws is held not to constitute negligence, which could decrease the amount of damages awarded to a plaintiff-victim. Thus, the plaintiff-victim's failure to use a seat belt in some jurisdictions cannot be offered as evidence by the defense to show that the victim contributed to his or her own injuries.
Further, courts in certain states will not allow a defendant-driver to offer evidence of plaintiff-victim's failure to use a seat belt to show a failure to mitigate, or minimize damages. Allowing such evidence would be inappropriate because the duty to mitigate can only arise after the injury occurs. The decision by a plaintiff-victim to use the seat belt is made before an accident occurs. Therefore, this evidence does not fit into a "mitigation of damages" context and cannot be used for mitigation purposes.
Conclusion
In the last 40 years, the Federal and State governments, along with public interest groups and auto manufactures, have made great efforts to provide both safer highways and safer vehicles. Although the nation is experiencing the highest rate of regular seat belt use in its history, devastating auto accidents occur everyday, forever changing the lives of the victims and their families. If you are a victim of an automobile accident, you should call San Diego Accident Attorney Sam Spital to obtain compensation for your injuries. One of our associates will help you recieve what you are entitled to, even if you were not wearing your seat belt.
Vehicle Accidents
Motor Vehicle Accidents that result in bodily injury are a very common occurrence.
Vicarious Liability
The concept of vicarious liability has been used to broaden the recovery in motor vehicle accident situations. An owner who permits another to use his vehicle may be vicariously liable for the acts of the driver if the driver was acting as the agent of the owner within the scope of his employment at the time of the accident. In short, an owner can be held liable for injuries caused by an accident involving their car, as long as the car was operated with their permission. In addition, some states allow the plaintiff to use a rebuttable presumption that a driver of a vehicle is the agent of the owner if the owner is a passenger in the car at the time of the accident. Approximately half the states have adopted a family-purpose doctrine in which the owner of an automobile is vicariously liable for its negligent operation by members of the family who are expressly or impliedly authorized to use the vehicle.
No Fault
Although this is NOT the law in California, many states operate on a system of no-fault insurance for automobile accidents. At their hearts, these systems are set up to provide some type of compensation to injured individuals (or dependents of deceased individuals) regardless of fault. Most of these systems are funded by private first-party insurance. In other words, once injured, a party is generally compensated by his own insurance company, rather than the insurance company of the other driver or a third party who was actually responsible for the accident.
Benefits that are available under no-fault plans usually include medical and hospital expenses, such as physical rehabilitation, reimbursement for funeral expenses, and lost wages. Most no-fault benefit plans contain a maximum or ceiling on the amount of damages that may be recovered. Many plans also require that every driver obtain a certain minimum level of coverage in order to be allowed to operate a motor vehicle. Under some of these plans, purchasers have the option of obtaining additional insurance, such as coverage for non-economic losses like pain and suffering. Some plans also require, in an attempt to prevent double recoveries, that individuals who recieve benefits from other plans, such as disability insurance or workers' compensation, credit the no-fault carrier for the amount that was received from these alternative sources.
In keeping with the desire to limit double recoveries, no-fault benefit plans generally contain some sort of provision limiting the right of an individual receiving benefits under the plan to also seek a traditional tort recovery. Most plans expressly abolish this right, thereby making the no-fault system the sole method of available recovery to the extent that the loss does not exceed a minimum threshold. In other words, a tort recovery is prohibited unless the individual's medical bills exceed a certain amount. In some cases, particular types of injuries such as death, dismemberment and permanent disfigurement are exempted from the prohibition. Other states have no-fault plans that do not contain any prohibition on tort recoveries. However, these same plans generally require that an individual who has received a tort recovery reimburse the no-fault carrier for any benefits that it has paid, thereby also preventing a double recovery.
If You Are In An Accident
Introduction
Immediately following an automobile accident, you may not realize you have been injured. If you have a neck or back injury, you may not feel any pain until the following day, or even later. If you do notice pains in your back or neck, you probably need to seek medical attention as soon as possible, inform your insurance company, and call San Diego Accident Attorneys Spital and Associates who specialize in settlement and litigation involving automobile accidents.
The Next Step
Obviously, the most important step to take if you feel pain after an automobile accident is to seek medical attention as soon as possible. This is important for several reasons. First, your injuries may be more severe than you originally thought. This is especially true for neck and back injuries, as these types of injuries may not manifest themselves until several weeks, or even months, after an accident.
It is also crucial to report any suspected injuries to your insurance company as soon as possible. Most insurance policies require the insured to give notice of any injuries immediately after an accident. This is to enable the insurance company to gather information while the injury is still fresh. Most insurers will allow a reasonable time to report an injury, but it is best to be safe and report any suspected injuries right away.
Conclusion
No one ever wants to consider the possibility of an automobile accident. If it does happen to you, however, you must take immediate steps to insure that you can recover the full amount of money for your injuries. As soon as you realize you may have been injured, seek the help of a physician. Then contact your insurance company.
Personal Injury Law: Why Do I Have to Attend an Independent Medical Examination?-->
The Independent Medical Examination
Introduction
Serious accidents typically require high monetary payments, either from the person at fault or from an insurance company. Because the insurer wants to ensure your injuries are genuine before expending large sums of money, they will likely require an examination by a doctor of their selection (this is commonly referred to as an "IME" or Independent Medical Examination). The purpose is the determine if the injuries are as serious as the victim claims they are. Hence, an evaluation from a doctor other than the victim's doctor may be required.
What to Expect
The insurance company for the "at-fault" driver operates on the assumption people make too many claims and their injuries likely are not as serious as they contend. Moreover, they believe the doctor selected by the accident victim is probably biased towards the victim in the assessmentof the victim's injuries. This is why insurers often request an independent physician examine the victim. This is voluntary prior to a lawsuit, but required once litigation is initiated. The IME is intended to examine to make sure the victim did in fact sustain injuries, to affirm that the injuries are as serious as the victim claims them to be, to make sure the injuries were not caused by a different accident in full or part, and/or to assess whether the victim is "malingering" (meaning they recovered long ago and are complaining about pain in order to collect (more) money.
If the injured party does not wish to attend an independent medical examination, he or she may be compelled to in certain circumstances. In California, a judge may order an IME because the victim's physical or mental injuries are in controversy. However, if a person claims he has physical injuries, but only sues for damages to his car, an examination will not be ordered. The insurer seeking to compel an IME is required to pay for the examination. Frequently, the insurer seeks to choose the examining physician (while they will not concede this point, insurance companies are wise enough to know if they select a doctor to do an IME and the doctor wants to get "repeat business," the doctor may be beholden to the insurer and write a report that is more "sympathetic" to the insurer). In cases where the parties are at odds over which physician to use, they often select an Agreed Medical Examiner (AME), or if they cannot agree, they may seek court intervention to appoint a physician. As your San Diego Accident Lawyer, we may also attend the examination to be witness to the nature and scope of the exam.
Conclusion
If you or a friend has been injured in an accident and seek to recover money for your injuries, you may be required to submit to an independent medical evaluation. The examination should not be feared, but you should be guided by an experienced personal injury lawyer so that it will indeed be treated like any other examination by a physician.
Mitigation of Damages
Introduction
When a person is injured through the negligence of someone else, the injured person has an obligation to take reasonable steps to minimize the effects and loss related to his or her injuries. This obligation includes seeking appropriate medical care to get well, and to seek other employment and/or retraining if your usual work is no longer feasible. If you are a defendant in a lawsuit contact San Diego Accident Attorney Sam Spital; we want to be your experienced personal injury lawyer. You pay no up front fees as we get paid when you collect. We can help reduce the claim that your damages should be lower by showing you took reasonable and appropriate steps to reduce your loss following the injury. The amount that can be obtained by the proper handling of a case can be substantial.
One's Obligation to Reduce Damages
As a personal injury victim, you have an obligation to take reasonable steps to avoid further loss or to minimize the consequences of the injury. The requirement of "mitigation of damages" denies a personal injury plaintiff the right to recover that part of his or her damages that the court or jury finds could reasonably have been avoided. You must act in a way that an ordinary, reasonable person would in a similar situation. In other words, you must act in good faith and with due diligence in the exercise of ordinary care and reasonable judgment when selecting a doctor and obtaining treatment for your injuries, and in seeking alternative employment if appropriate.
Sometimes an injured person's doctor will recommend surgery as a method of treating an injury. In such a case, an injured person may choose not to have the surgery and no one can make him or her consent to it. However, an injured person may not recover damages for the consequences of an injury that could have been avoided or significantly lessened by surgery or other treatment. A plaintiff cannot claim damages for a permanent injury if the permanency of the injury could have been avoided by submitting to surgery or other treatment, when a reasonable person would have done so under the same circumstances.
However, the degree to which the proposed surgery involves risk of death or further injury is a factor that is considered when determining if a reasonable person would undergo surgery to reduce his damages. An injured person may have an obligation to lessen his or her damages by undergoing surgery if the recommended surgery is a relatively simple operation, with a good record of success. Just because a general anesthesia is required for a particular surgery does not by itself justify an injured person's failure to have the surgery, if the operation involves little risk and is usually successful. An injured person is not required to undergo surgery that is more than routine, involves some hazard or poses serious risks. Likewise, an injured person is not required to undergo a major or serious surgical operation. In that instance, he or she may choose to live with the injury and still be compensated for it.
In deciding whether an injured person acted reasonably in declining to have surgery (or some other treatment that might have lessened his or her damages) it is proper to consider the probability that the treatment would have resulted in a cure or alleviated the injury. The appropriate question is whether the proposed course of treatment would have cured or reduced the injury, not whether there was some chance that it might have done so. In cases where an injured person makes a claim for lost future earnings, a court can consider whether the proposed surgery would likely help the injured person regain his ability to do work.
An injured person's failure to see a doctor in a prompt or timely manner for injuries where a reasonable person would have done so can reduce the person's recovery potential. A delay in seeking medical treatment may be reasonable where the injury did not seem serious. An injured person must act in a reasonably prompt manner, or damages will not be allowed where there is proof that the delay contributed to the injury.
Where a doctor or other medical care provider recommends a course of treatment or gives other advice, an injured person cannot refuse the treatment or disregard the doctor's advice and then claim damages for conditions that resulted or persisted because of the failure to follow the advice. An injured person's damages will be reduced if a reasonably prudent person would have followed the medical advice given and the failure to follow the advice resulted in a lack of improvement or aggravation of the injury. For instance, an injured person's failure to return to a doctor or other medical care provider for a continuing condition, especially where persistent pain is involved, may reduce a plaintiff's recovery.
It used to be fairly obvious that an injured person should see a doctor to treat an injury, but the rise of alternative treatments, including acupuncture, chiropractic, holistic and homeopathic remedies, and the use of home remedies and exercise are increasingly being used by injured persons. Using one of these alternative means, instead of seeking prompt medical treatment, may be deemed by the insurer to be unreasonable and may lead to the reduction in the amount of damages an injured person can recover.
Lastly, a person whose injuries keep him from following his or her usual work, but who can work in other areas and types of jobs, cannot sit idly by, doing nothing, and watch his or her losses grow in anticipation of recovering enhanced damages. An injured person's damages will be reduced where he or she can do work of some kind, and where such work is available, but the injured person makes no effort to obtain such work.
Conclusion
In summary, personal injury cases can result in large recoveries, but an injured person is not allowed a "free ticket" to simply sit back and wait for a large verdict at trial when there are steps that he or she could take to reduce his or her loss. At Spital and Associates, we will assign an experienced personal injury attorney to guide you and monitor your case to explore and gather evidence to assist you to take reasonable and appropriate steps to get well quickly and to mitigate your damages. This can translate into a substantial recovery.
Allow us to be your San Diego Auto Accident Lawyer, call us today.
Samuel Spital & Associates
8880 Rio San Diego Drive
Suite 800
San Diego, CA 92108-1642
Telephone: 619-583-0350
Fax: 619-583-1850
Call 7 days a week at any hour or send an e-mail now.