Tacoma Personal Injury Lawyer - Miscellaneous - Most Popular

Is My Case Going to Court?

Michael Myers — Mon, 28 Sep 2009 12:59:35 GMT

Court Rule 3 deals with commencement of a civil action. (Personal injury cases are "civil actions.") The text of the Rule reads:

(a) Methods. Except as provided in rule 4.1, a civil action is commenced by service of a copy of a summons together with a copy of a complaint, as provided in rule 4 or by filing a complaint. Upon written demand by any other party, the plaintiff instituting the action shall pay the filing fee and file the summons and complaint within 14 days after service of the demand or the service shall be void. An action shall not be deemed commenced for the purpose of tolling any statute of limitations except as provided in RCW 4.16.170.

(b) Tolling Statute. (Reserved. See RCW 4.16.170.)

(c) Obtaining Jurisdiction. (Reserved. See RCW 4.28.020.)

(d) Lis Pendens. (Reserved. See RCW 4.28.320 and 4.28.160.)

While it's possible to serve a summons and complaint without filing them, typically they are filed first and then served.

Clients frequently ask: "Will my case go to court?" In most instances, they mean: "Will my case go to trial?" That's what they mean because in most instances their case has already "gone to court".

It's increasingly necessary to file suit in order to obtain an offer that represents the full extent of a defendant's (or the defendant's insurer's) settlement authority. While it's possible to resolve cases without filing suit, more and more it seems like insurers want to test injured person to confirm that they have the constitution and wherewithal to actually file suit and proceed with litigation if a settlement isn't reached.

This is one of the primary reasons that injured people are almost never able to elicit full value offers for their cases. In fact, as I've written before, studies have shown that injured persons representing themselves received less than one third of what injured persons represented by counsel receive. (Assuming a one-third contingent fee, this means that represented persons receive over twice as much on average as unrepresented persons.)

It's no wonder that so many insurers – and claims adjusters – encourage injured persons not to hire attorneys. They are not motivated by a genuine interest in how much the injured persons "nets" but rather selfish desire to pay out as little as possible.

Court Rule 3 describes how to start a lawsuit. The information establishes a foundation but careful attention has to be paid to related rules and statutes (such as how to properly effectuate service of process). More on that later.

Originally posted at InjuryBoard by Michael Myers

Bicycles and UIM Coverage...Why do I Need Auto Insurance if I Ride a Bike?

Michael Myers — Sat, 10 Jan 2009 20:47:13 GMT

I recently read about a hit and run accident at another blogger's site:

A bicyclist was taken to Harborview Medical Center with life-threatening injuries Tuesday after a hit-and-run collision on Beacon Hill.

The collision happened about 1:50 p.m. near 21st Avenue South and South College Street.

The preliminary investigation determined a person driving a navy-blue 1980s-model Oldsmobile Cutlass or Chevrolet with a white top drove into the oncoming traffic lane to pass another vehicle at a stop sign.

Police said the person ran the stop sign going northbound on 21st Avenue South and hit the 20-year-old cyclist, sending him into the air.

We've had a spate of hit and run incidents in Seattle recently. (One of the comments at the original post makes the good point that a hit and run incident is not an accident: the collision may have been an accident but the decision to drive off was a purposeful choice.) It highlights the importance of purchasing UIM coverage when renew your auto insurance even if you spend most of your time riding a bike.

When there is a hit and run incident and its timely reported to the police, a cyclist's UIM coverage will provide the same benefits as the driver's insurance (had the driver done the honorable thing and stayed at the scene to assist the injured cyclist).

UIM coverage is only available as part of auto insurance. Do you think that bicyclists should be able to purchase UIM coverage without having an auto policy?

Originally posted at InjuryBoard by Michael Myers

Servers and Bartenders Underpaid--Pooled Tips Partially to Blame

Michael Myers — Sun, 30 Nov 2008 11:05:45 GMT

We are seeing more and more cases involving unpaid wages. Along those lines an interesting case out of Texas called Bernal v. Vankar Enterprises, Inc.

Mr. Bernal worked at a series of Texas bars. Tips from customers that were placed in a tip pool and distributed among all employees including managers. Mr. Bernal’s base hourly rate of pay was less than federal minimum wage, and did not receive time and a half pay for overtime.

Mr. Bernal instituted a class action. He alleged violations of the Fair Labor Standards Act ("FLSA"). The FLSA establishes a minimum hourly wage and overtime requirements.

However, some employers are permitted to pay employees less than the minimum wage if the employees receives tips that, when added to their hourly wage, amount to more than the statutory minimum. This practice, known as taking a “tip credit,” is only permitted if the employer has informed the employees of the tip credit provisions and if the employees retain all tips.

The Court held:

1. The Bars violated their minimum wage obligations by failing to inform employees of the tip credit provisions, by requiring employees to cover cash register shortages and unpaid tabs, and by requiring employees to participate in tip pools which distributed tips to managers and janitors.

2. The Bars violated the FLSA by failing to pay appropriate overtime wages.

The economy's tough. You work hard. If you are not getting paid what you deserve, you should contact an attorney to review both your situation and your employer's practices.

Originally posted at InjuryBoard by Michael Myers

Rules of the Road

Michael Myers — Mon, 08 Jun 2009 11:59:39 GMT

Liability in motor vehicle accidents is frequently determined based on application of the "rules of the road". Determining liability inclusions between vessels (for collisions between vessels and personal watercraft, water skiers, swimmers) is also determined by applying standardized rules. These standardized rules have been around for a lot longer than the rules of the road.

Between 1,000 BC and 600 BC, the people of Rhodes developed a strong commercial fleet and they were soon everywhere in the Mediterranean. The people of Rhodes developed rules of law to deal with occasional shipping disputes including, especially, a code of maritime law. It's referred to as the lex Rhodia.

Many of these rules – thousands of years old – have been codified by both Washington State and the United States Coast Guard.

When trying a case involving a collision between vessels or between a vessel and personal watercraft, water skier, swimmer or diver, it is important to ensure that the court gives the jury instructions about each of the applicable rules. While there is a pattern set of Washington jury instructions that include special instructions for the rules of the road, the pattern set does not include rules applicable to boating accidents. Therefore, it makes sense in these cases to start early in terms of educating the court so it can then, at trial, educate the jury about what law applies and give the jury a sound basis for citing the case.

Originally posted at InjuryBoard by Michael Myers

Foreseeability and Medical Negligence Redux--Holland America on the Hook

Michael Myers — Mon, 03 Nov 2008 19:28:41 GMT

I received a comment from a local emergency room physician about the scope of foreseeability (espeically as it pertained to medical negligence).

The basic rule of liability for harm resulting from treatment of injuries caused by a tort-feasor's negligent conduct appears in Restatement (Second) of Torts s 457 (1965):

If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

As the Washington judiciary has observed:

This rule has long been applied in this state. See Adams v. Allstate Ins. Co., 58 Wn.2d 659, 669, 364 P.2d 804 (1961); Martin v. Cunningham, 93 Wn. 517, 518, 161 P. 355 (1916). See also DeNike v. Mowery, 69 Wn.2d 357, 368-371, 418 P.2d 1010 (1966). The rationale of the rule as applied to medical treatment is that negligent or harmful medical treatment is within the scope of the risk created by the original negligent conduct. See Restatement (Second) of Torts s 457, Comment b at p. 497 (1965).

Lindquist v. Dengel, 92 Wash.2d 257, 595 P.2d 934 (1979). Hopefully this clarifies and expands on my earlier entry.

Originally posted at InjuryBoard by Michael Myers

Medical Negligence in Port--Holland America May be Responsible

Michael Myers — Sat, 01 Nov 2008 18:49:30 GMT

We recently communicated with a family who suffered a tragedy. Their mother slipped and fell on a Holland America vessel. Treatement was provided at a hospital located at the next port city. Unfortunately the mother died. Concern existed regarding the division of responsibility between Holland America and the hospital.

The inquiry touched on pretty common issue in personal injury litigation: what happens when a person is injured and is made worse by her providers.

There is a body of law that provides that medical malpractice is a foreseeable consequence of injuring someone. As a result, the party that caused the initial injury is liable for not just the initial injury, but any additional harm that’s caused in the course of treating that injury.

In most cases it doesn't make sense to pursue a medical malpractice action in a foreign country. Fortunately, however, there’s a good argument that Holland America should be held responsible for the the additional harm caused at the hospital when its negligence was the casue of the initial injury.

Note: Our firm has handled approximately 50 cases against Holland America. All cases against Holland America must be litigated in Seattle pursuant to the terms of the ticket purchased by passengers. The ticket provides that written claims must be submitted to Holland America within six months of the incident and suit must be filed within one year.

Originally posted at InjuryBoard by Michael Myers

Duty of Care on Board Holland America

Michael Myers — Sun, 04 Jan 2009 09:43:10 GMT

A lot of people go on cruises over the holidays. Many of these people will cruise on Holland America. Holland America is one of the “high end” cruise lines.

Passengers develop the expectation that they deserve more from Holland America. And, quite frankly, they do.

Passenger expectations primarily relate to customer service. But certainly cruise passengers, and particularly those on Holland America should also receive the highest standard of care when it comes to on board and excursion safety.

Many passengers are legally owed the highest standard of care. This applies to passengers on trains, buses, etc. However, the law has evolved in such a way that cruise lines, including Holland America, owe their passengers only an ordinary duty of care.

Duty of care is important because it sets the parameters by which negligence claims are judged. The bar is set much higher for the defendant if the defendant owes the plaintiff the highest duty of care rather than simply an ordinary duty of care.

The majority of claims against Holland America involve falls and food-borne illness. The majority of claims involving falls require a "mechanical" analysis to determine whether the fall could have been prevented had Holland America exercised ordinary care towards the injured passenger. Food-borne illness cases are somewhat more complicated because they involve a two-step process. First, was the illness in fact food-borne (did passenger contract the illness while eating aboard the ship as opposed to on shore) and second could the exercise of ordinary care, insurance of hygiene and food handling process have prevented the passenger's illness?

Many passengers – no doubt due, in part, to the high fares charged by Holland America – have the expectation that if they get hurt on a Holland America vessel the cruise line will compensate them. This expectation, while perhaps reasonable, does not align with the law. In order to recover for an injury suffered aboard Holland America it is necessary to prove that the cruise line was negligent. This requires the not only an attorney but also the intelligent utilization of experts.

Without an attorney, passengers injured or who become ill while cruising with Holland America are not going to receive an offer from the cruise line that approximates the actual value of their case. In order to maximize value, the injured person needs to retain counsel familiar not only with personal injury law but also with its application to cruise lines and, in particular, Holland America.

Originally posted at InjuryBoard by Michael Myers

...And a Bottle of Rum

Michael Myers — Fri, 05 Jun 2009 12:01:01 GMT

There is a strong historical connection between alcohol and boats. It started with ancient seafarers and has continued to modern day.

While drinking and driving has a significant stigma associated with it, the same stigma has not taken such fierce hold in the world of boating. As a result, impaired operation of boats both large and small remains a significant problem.

During Seafair and other major events on Lake Washington there is a significant law enforcement presence and intoxicated operators are both ticketed and taken to jail. However, the rest of the year sees relatively little enforcement of these laws. As a result, collisions between vessels and other accidents involving alcohol are frequent.

Alcohol – while to some degree tolerated on the water – is one of the least tolerated factors when it comes to trying a personal injury or wrongful death case. The plaintiff's consumption of alcohol can often be the death knell for a case. By the same token, the defendant's intoxication bodes variably drive both favorable settlements and high verdicts.

It is important both for operators and occupants to realize that operating a boat while intoxicated carries the same risks as drunk driving.

Originally posted at InjuryBoard by Michael Myers

Slip and Fall Cases in Parking Garages

Michael Myers — Tue, 06 Jan 2009 13:59:00 GMT

Slip and fall cases – particularly slip and fall cases in parking garages – find plaintiffs caught between the wolves and the sea. The bigger the slippery surface, the more forceful the defense argument that client should have seen and avoided the hazard. The smaller the hazard, the more persuasive the defense argument that it did not have the opportunity to detect and clean up the hazard.

These basic rules were recently on display in a case we handled. Our client was walking through an underground parking structure and slipped in a deposit of oil. He testified that the patch of oil was approximately one foot by four feet. This obviously placed a heavy burden on the manager of the parking facility to clean it up. However, it also imposed significant degree of potential comparative fault on our client for not having seen the virtual oil slick.

Another big issue in the case was when was the oil deposited? We addressed this issue by emphasizing that the oil had not splattered on our client’s clothing when he stepped in it and that his foot – as it slid through the oil – left a lasting impression (indicating that the oil on the parking surface had partially dried and was not the result of a leak).

This case also emphasized that lighting is a significant issue in many slip and fall cases and may help alleviate the challenges posed by the “wolves and the sea” dilemma described at the beginning of this post.

When pursuing any inadequate lighting claim (or an inadequate lighting allegation as a supplement to the slip and fall claim) it is necessary to hiring a lighting engineer to both measure the light available at the location of the slip and fall and also to familiarize counsel with the applicable codes and standards. Also, in pursuing the inadequate lighting claim, it’s important to consider whether responsibility for lighting in the garage is the responsibility of the building owner or if it has been allocated to the management company that runs the garage. The safest course of action in any parking garage case is to file suite against both the building owner and the management company that runs the garage for the building owner.

The case used as the point of reference in this post has settled. It did not go to trial and there was not a determination regarding comparative fault. However, we were on the brink of trial and prepared the case extensively.

While we did not conduct a formal focus group or present the case to a mock jury, we did discuss it extensively with both legal colleagues and people who worked outside the law. They were universally concerned about our client’s decision to walk through other parking stalls in order to get to his car.

Query: Do you think the decision to walk through other parking stalls (particularly in the absence of a designated walkway) makes the plaintiff comparatively at fault or increases the comparative fault allocated to him?

We’re interested to hear your thoughts and comments. Thank you very much.

Originally posted at InjuryBoard by Michael Myers

Rogue Waves--Vessel Owners Contort a Dubious Defense

Michael Myers — Tue, 16 Sep 2008 00:36:10 GMT

One of the most frequently asserted defenses in cruise ship litigation, not only by Holland America, but also by regional cruise lines, sightseeing vessels and whale watching boats is the “rogue wave” defense.

Rogue or “sneaker” waves are a natural phenomenon. They are waves which are unexpected and, definitionally, at least three times bigger than other waves in the vessel’s vicinity.

There is significant debate whether a defendant can avoid liability because the vessel was struck by a rogue wave. Rogue waves have been acknowledged for hundreds if not thousands of years. They’re clearly foreseeable.

But even if defendants could legitimately defend on the unexpected nature of rogue waves (which can be caused by a variety of factors), any validity associated with this defense has been destroyed by its gross overuse by defendants.

The “rogue wave” defense has been contorted by defense attorneys to the point that it is no longer recognizable. In almost every case where passenger falls and is injured because of defendant’s operation of a vessel and/or the nonexistent safety precautions like railings and handholds, the defense invariably interposes the “rogue wave” defense.

In these situations defendants argue, essentially, that the rogue wave that caused the vessel to lurch, roll or yaw was an act of God and that they shouldn't be held responsible.

Waves are foreseeable. Rogue waves are foreseeable. Vessel owners and operators need to anticipate rogue waves and safeguard their vessels.

Originally posted at InjuryBoard by Michael Myers