Last week I tried a personal injury/auto accident case to a Stark County jury. There's an important lesson from that trial that anyone injured in an accident case should know.
Long story short, my client was broadsided in a bad crash. She sustained 4 broken ribs, a fracture to her sacrum (which is actually part of the pelvis), and three herniated discs in her lumbar spine. Bad injuries, many of which no therapy could help--only time and immobility.
Despite being really banged up, she did not "milk" her claim and try to pad her losses and run up tons of medical bills. She made the choice to return to her supervisor's job 6 days after the crash, reasoning that since she was in a lot of pain no matter what she did, she might as well return to work.
Her next 6 months were chock full of incredible pain with breathing, sitting, standing, sleeping--essentially everything was affected by all of her fractures.
She gutted it out with 40 grueling visits to her chiropractor, family and orthopaedic doctor, and lots of physical therapy and massotherapy to heal her herniated discs. She never missed an appointment, and scheduled all of her medical visits around her work schedule, taking some 75 hours of personal time from work.
She got her life back in about 6 months, when her chiropractor testified that he anticipated initially it would take 8-10 months of rehab for her to get better. Basically, she did everything she could to MINIMIZE her losses. Her healthy lifestyle before the crash was important to her and she was determined to get back to it as soon as possible.
The insurance company for the negligent driver made an incredibly lousy offer before trial, making the decision to go to trial easy. They no doubt were relying on the fact that she healed rather quickly, so the case was no big deal.
The jury did not see it that way. They returned a verdict that substantially beat the insurance company's last offer. They did this not even knowing any information about the insurance company's last offer, since negotiations between the parties are inadmissible in Ohio and almost all other states.
Bottom line: the jury admired her fortitude and laser like focus to get better and get on with her life despite all of her injuries. They did not penalize her for healing in less time than the average person.
The reason for their fair verdict was simple in my opinion. Juries often come into a case skeptical of the person bringing a lawsuit and his or her attorney, and not without some surface level justification for their skepticism. After all, they hear stories of people trying to "cash in" from a personal injury lawsuit, read about the occasional goofball frivolous lawsuit, and get bombarded by offensive solicitations in their mailboxes after a minor fender bender.
The best antibiotic for this skepticism is an honest, hard working, determined client who is simply doing everything she can do to get better.
She made my job a lot easier, and it's proof that juries will often do the right thing when they recognize human decency and effort.
Wednesday, March 26, 2014
Monday, March 10, 2014
My State Passed Damage "Caps"--How Do They Apply To My Injury Claim?
I got this question from an audience member at a recent speaking engagement. It was a good question, simply because most people don't realize that Ohio, like 32 other states, passed limits or "caps" on what Ohioans can recover in a wide variety of injury lawsuits.
Let's set aside the damage caps The Ohio legislature passed for medical negligence or malpractice cases. Believe it or not, they are different than the damage caps passed in OTHER personal injury lawsuits, like auto accidents, defective products, and injuries to patrons in stores, for example. I'll leave the medical malpractice damage caps for another post, so stay tuned...
GENERAL INJURY DAMAGE CAPS OTHER THAN MEDICAL MALPRACTICE CASES
If you're injured by a negligent motorist, for example, you can collect your lost wages, medical bills, and other "tangible" items of damage (the things we can add with a calculator) at 100%--no limits there. But for your "intangible" losses--the things we all hold dear and what I refer to as "human losses," Ohio law limits what you can recover.
These intangibles would include the physical pain and disability associated with fractures, surgeries, loads of therapy, loss of hobbies, and the countless other things you love, like volunteering, babysitting your grand kids, etc. You know--the things that bring you joy and pleasure in this world.
The cap consists of your medical bills and other calculator damages plus $250,000 or 3 times your "calculator" damages not to exceed $350, 000--whichever is LESS. This cap applies even if you have a permanent, chronic injury because of someone else's carelessness.
The only exceptions to this cap are (1) a permanent and substantial physical deformity; (2) loss of a limb; (3) loss of a "bodily organ system;" or (4) a permanent physical injury that prevents a person from independently taking care of one's self in every day activities of life.
Bottom line: if a drunk or texting driver smashes you, causing numerous fractures, and you don't meet one of those 4 exceptions, you're limited to either $250,000 or $350,000 plus your calculator damages.
Who pushed to pass these laws? Insurance companies. Why did they want them? To limit what they have to pay in personal injury cases. They argued that limiting payouts on cases like this was good for the economy and good for business, which would create a "good business climate" and therefore increased jobs.
These laws were passed in 2005. They traded your misery and limping around on a bum leg due to a careless drunk driver for a "good business climate."
So it's fair to ask almost a decade later: Where are all these jobs that were promised? What did we Ohioans get in exchange for limiting what insurance companies pay for texting drivers who maim motorists?
It's really hard to explain this to clients faced with these caps in their cases when they were simply minding their own business and got plowed by an irresponsible driver. It's even harder for them to accept these arbitrary limits when I explain to them that their state representative (whom they voted for) happily endorsed and voted for this law....
Let's set aside the damage caps The Ohio legislature passed for medical negligence or malpractice cases. Believe it or not, they are different than the damage caps passed in OTHER personal injury lawsuits, like auto accidents, defective products, and injuries to patrons in stores, for example. I'll leave the medical malpractice damage caps for another post, so stay tuned...
GENERAL INJURY DAMAGE CAPS OTHER THAN MEDICAL MALPRACTICE CASES
If you're injured by a negligent motorist, for example, you can collect your lost wages, medical bills, and other "tangible" items of damage (the things we can add with a calculator) at 100%--no limits there. But for your "intangible" losses--the things we all hold dear and what I refer to as "human losses," Ohio law limits what you can recover.
These intangibles would include the physical pain and disability associated with fractures, surgeries, loads of therapy, loss of hobbies, and the countless other things you love, like volunteering, babysitting your grand kids, etc. You know--the things that bring you joy and pleasure in this world.
The cap consists of your medical bills and other calculator damages plus $250,000 or 3 times your "calculator" damages not to exceed $350, 000--whichever is LESS. This cap applies even if you have a permanent, chronic injury because of someone else's carelessness.
The only exceptions to this cap are (1) a permanent and substantial physical deformity; (2) loss of a limb; (3) loss of a "bodily organ system;" or (4) a permanent physical injury that prevents a person from independently taking care of one's self in every day activities of life.
Bottom line: if a drunk or texting driver smashes you, causing numerous fractures, and you don't meet one of those 4 exceptions, you're limited to either $250,000 or $350,000 plus your calculator damages.
Who pushed to pass these laws? Insurance companies. Why did they want them? To limit what they have to pay in personal injury cases. They argued that limiting payouts on cases like this was good for the economy and good for business, which would create a "good business climate" and therefore increased jobs.
These laws were passed in 2005. They traded your misery and limping around on a bum leg due to a careless drunk driver for a "good business climate."
So it's fair to ask almost a decade later: Where are all these jobs that were promised? What did we Ohioans get in exchange for limiting what insurance companies pay for texting drivers who maim motorists?
It's really hard to explain this to clients faced with these caps in their cases when they were simply minding their own business and got plowed by an irresponsible driver. It's even harder for them to accept these arbitrary limits when I explain to them that their state representative (whom they voted for) happily endorsed and voted for this law....
Sunday, March 2, 2014
WHAT HAPPENS IF THE PERSON RESPONSIBLE FOR YOUR AUTO CRASH DIES?
It doesn't happen frequently, but occasionally the negligent driver who injured you in a crash dies before your claim is settled. This is a recurring scenario with elderly drivers.
When this happens, the insurance company for the driver is still on the hook for the injuries caused by their deceased insured. Occasionally, however, the insurance company may not know their insured driver died, particularly if that person's death occurs well after the crash for reasons unrelated to the crash.
And you may not know it either.
If you are trying to resolve your injury claim on your own, and you are fast approaching the expiration of your two year statute of limitations, this may be a real problem.
Why? In Ohio, you cannot sue a dead person. You have to sue that person's estate. If you are unaware that the negligent driver has died, and wait until the last minute to hire an attorney, you risk letting your statute of limitations expire if you sue a deceased person rather than his estate, only to find out afterwards that the negligent driver is now deceased.
But what if no estate has been opened on behalf of the deceased driver? Ohio law allows your personal injury attorney to open an estate on behalf of the deceased negligent driver in order to sue the estate and properly preserve our injury claim. If this is done timely and correctly, the deceased person's insurance company will defend the claim, and coverage under the deceased person's policy will be preserved.
This can get complicated and it can take some time to properly open the estate, so the last thing you want to do is wait until a few days before your two year statute of limitations is about to expire before hiring a personal injury attorney to represent you.
A word to the wise if you've been injured by an elderly driver.
When this happens, the insurance company for the driver is still on the hook for the injuries caused by their deceased insured. Occasionally, however, the insurance company may not know their insured driver died, particularly if that person's death occurs well after the crash for reasons unrelated to the crash.
And you may not know it either.
If you are trying to resolve your injury claim on your own, and you are fast approaching the expiration of your two year statute of limitations, this may be a real problem.
Why? In Ohio, you cannot sue a dead person. You have to sue that person's estate. If you are unaware that the negligent driver has died, and wait until the last minute to hire an attorney, you risk letting your statute of limitations expire if you sue a deceased person rather than his estate, only to find out afterwards that the negligent driver is now deceased.
But what if no estate has been opened on behalf of the deceased driver? Ohio law allows your personal injury attorney to open an estate on behalf of the deceased negligent driver in order to sue the estate and properly preserve our injury claim. If this is done timely and correctly, the deceased person's insurance company will defend the claim, and coverage under the deceased person's policy will be preserved.
This can get complicated and it can take some time to properly open the estate, so the last thing you want to do is wait until a few days before your two year statute of limitations is about to expire before hiring a personal injury attorney to represent you.
A word to the wise if you've been injured by an elderly driver.
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