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Month: February 2014

Protection against Insurance Scam Fraud

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Insurance Fraud Lawyers

We wanted to discuss something that hurts all of us here at our injury attorney portal site. Every person ends up having to pay one way or another when they become victimized by car insurance fraud. So they will be responsible for paying insurance premiums that are higher. This is because of the expensive claims that are usually filed.

In many situations, the victim and members of their family involved in an accident wind up paying with their very lives. To ensure you are protected from becoming the target of fraud from an insurance accident scam, it is essential to becoming educated on fraud protection.

Insurance fraud started at the very same time that car insurance was created. As a matter of fact, there are recorded incidents going back to ancient Greece. Many ships were sunk on purpose in an insurance scam that was referred to as ship scuttling. Then insurance fraud made its way to England, and then onto America.

How Long Has Insurance Fraud Existed?

An entirely new arena opened up for insurance fraud claims as soon as the automobile was introduced. With the high tech technology that is commonly used today, there are organized and highly sophisticated crime rings that file numerous fraudulent claims for car accidents, and they are not very easy to detect.

However, this does not have to leave you exposed as a target for an insurance scam. There are steps against fraud that can be taken to gain protection and awareness, and to help you avoid becoming a targeted victim of individuals and organized crime rings alike. The first step is to understand the different types of insurance scams that are commonly used.

There are actually quite a few different types. Accidents that are ‘set-up’ can range from a driver acting like they want to offer help but only have the intentions of causing an accident that appears to be the fault of the innocent driver to vehicles intentionally stopping directly in from of an innocent driver in order to cause a rear-end accident.

Should I Trust My Doctor or My Lawyer?

To make it even worse is the fact that people you would normally trust, like attorneys and physicians, are sometimes involved in scams like this. The best way to make certain you do not become a victim of insurance scam fraud, it is important to gain information about fraud protection and the car insurance accident scams you can avoid.

Below are some of the most common scams that you will want to stay aware of:

  • Fake Helpers – These people are well known for waving unsuspecting drivers into traffic. Next they intentionally crash right into the driver’s vehicle. When the claim is filed, they will deny that the other driver was waved in. Other people become scammed when help is offered to an unsuspecting driver to locate a physician, auto repair shop, or attorney. In situations like this everyone involved is aware and in on the scam. They physician and attorney will be deceptive in order to collect more money from your insurance provider. Afterward, the body shop will end up charging ridiculous rates.
  • Adding Additional Damage – An accident may or may not be staged. Next, the scam driver will drive to a different location and deliberately cause a significant amount of damage to their automobile. Afterward, the original accident is where all the damage occurred.
  • Rear-End Car Accidents that are Staged – This refers to those that hurry to position their vehicle in front of an unsuspecting driver and then slam the brakes. The result of this action is a rear-end collision right into the scam driver. They can then collect large amounts of money for vehicle damages. Next, they will collect even more money for staged medical injuries.

It is vital to always stay prepared, as scams like this can occur at any place and at any time. The key is awareness. Keep an eye out for scam drivers. After all, they may be inspecting the habits of your driving or following your vehicle. You should always make sure there is enough room in front of your vehicle to stop in a hurry.

Notes should also be taken if an accident occurs on the particulars of the crash. And information about the other car, as well as every person in the other vehicle must be maintained. The damage that occurs to both vehicles should be recorded on a disposable camera that you keep in your car. Never use another person’s judgment, always use your own.

Do not let another driver ‘wave you into traffic,’ it is much safer to let other vehicles pass until you know you have enough room to get in or out of traffic. Also, if an accident occurs and you sense something is not quite right, make sure you convey this to your insurance company. These are just some of the ways to protect yourself from insurance scams and fraud.

Negligent Entrustment and its Legal Ramifications

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Attorney Michael Ehline in Marina del Rey with Gunnarr Ehline

Responsibility can go well beyond what happens in your very presence. Negligent entrustment is a growing portion of California legal cases and has many forms and ways of coming about. When a jury is faced with the decision of whether or not negligent entrustment occurred, they have many things to consider. They must determine if:

an injury that proximately was caused by a tortfeasor entrusting his or her property to another person he or she knew or should have known, in the hands of someone  not properly trained, or qualified to use, manage or control that property, as seen in the Judicial Council of California Civil Jury Instructions.

Understanding the many factors in negligent entrustment cases is a vital portion of being a well-rounded California attorney. Having this and other relevant civil and criminal laws and precedents already known can make a vital difference in a case.

If it should have been foreseen that the misuse of any property– whether it be a car, gun, or any other object or objects– could or would risk serious injury or harm, there are serious implications. These can include lending a vehicle to a person that is clearly drunk or has a suspended driving for reckless or irresponsible driving. This can go so far as having the lender brought into court as the co-defendant. The court will attempt to determine how much risk should have been foreseen and if it was or should have been apparent to the lender. At this point, the court looks into whether the defendant’s conduct likely caused the resulting harm.

Negligent Entrustment of Motor Vehicles

One of the most common forms of negligent entrustment is in the case of motor vehicles. This can be seen all over Southern California, including lending cars to a pizza delivery person without a license– with the vehicle owned by the pizza place. There could also be car owners lending their vehicle to a drunk or drugged up driver. There have also been cases of parents lending their car or truck to their child, even though that kid has been in trouble with the law for reckless driving.

Negligent Entrustment of a Firearm

Firearm safety is vital. Allowing an unqualified or dangerous person near such a weapon could lead to accidental discharge or even murdered. The use of any weapon–rifles, pistols, and even knives and poisons can easily create a negligent entrustment liability.

Speak With Legal Counsel Now

If you or a loved one has been hurt due to such a case, call one of our expert attorneys at 888-400-9721 for more information and a free, no-pressure consultation.

Know the Difference Between Types of Attorneys

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When Only the Best Accident Lawyers Will Do.

In law school, or while reading the law as an extern, the same classes/subjects are studied by all prospective lawyers, and each of them also makes the identical oath to maintain ethics and professionalism. First-year students must master the concepts of “Contracts, Torts, and Criminal Law,” across all American Bar Association, approved schools, as do most State Bar certified schools. So in general, most licensed practitioners are masters of the basics, so to speak.

So does it matter which type of attorney is chosen for your particular legal claim? Well, first you must understand how massive law is now insofar as its various subdivisions are concerned.  There are specialists, such as those who handle the patent law, and there are trial lawyers who focus only on a particular area of tort law, like mass torts. Image, the law, is like a giant skyscraper, and each room of the building represents an area of legal knowledge like: “Negligence Law,” which would be a small room in the basement.

And then, in that tiny room, maybe a desk drawer would contain the legal know how to navigate a bodily injury insurance claim, mediation, and trial.  “Wills and Trusts” with its sub-areas would be in a small room down the hall and so forth. And then for argument’s sake, make the first few top floors criminal law, and all the lower floors civil law, and you can start to see how the law is stacked.

So to answer the original question, yes, as a general rule, it does make sense to hire a lawyer, so long as he or she is reasonably competent in their particular practice for which you sought above average skill for the type of case you need help with as a consumer. They certainly are not all the same. Therefore, it does matter which type of legal expert is selected.

Some lawyers are, however, general practitioners, who handle cookie cutter types of cases that are not that always that complex, for the most part.  This kind of specialist will be the one you call for a canned divorce or bankruptcy, or for a traffic ticket infraction, for example. The takeaway from all of this is that someone who holds them self out to be a particular type of lawyer, still may not always have the requisite training for your particular claim or case.

So as a seeker of help, you must familiarize yourself with some best practices for consumers. Then you’ll be able to hire the right type of help sensibly.  So for now, we will drill down into a few of the many types of lawyers. Let’s try and understand the similarities and differences.

What is a General Practice Lawyer?

Numerous types of attorneys have specialized knowledge in one particular area of law. And some even practice in a few different areas that are related. As noted, general practice lawyers do not just specialize in one particular area. In fact, they usually practice simultaneously in some different areas of law.

It is not uncommon for a general lawyer to practice in several or all of the areas of law listed as follows:

  • Security law
  • Administrative Law
  • International law
  • Criminal law
  • Real Estate law
  • Corporate and Commercial Law
  • Civil Litigation Law
  • Tax law
  • Family law
  • Labor and Employment Law
  • Constitutional law
  • Immigration law
  • Environmental law
  • Intellectual Property Law

While there are some GP’s that limit the types of law they practice, there are others that accept cases and cash from virtually any type of client, in a multitude of legal claims. By far the most popular lawyers are the tort or personal injury lawyers. Movies like “Rainmaker” with Matt Damon are a testament to the reputation of the ambulance chaser.

Who Are Personal Injury Attorneys?

A personal injury attorney [Click Here] specializes in cases that involve personal injury. In cases like this compensation is sought from those legally liable, for intentional, or negligent damages including

  • Psychological injury
  • Lost wages
  • Property damage such as with automobile accidents
  • Physical injury such as with a surgery that is botched
  • Medical expenses

In law school, these types of attorneys fall under the “Department of Negligence,” but this area of law has many subdivisions and experts, from mass torts, vehicle airbag defects, exploding gas tanks, commercial vehicle accidents and so forth. The bond between these attorneys, is that they have knowledge in handling cases that involve tort law. A tort is a civil “crime” that has been made against a particular group of people or person that justifies filing the money damages suit,

A tort is a civil “crime” that has been made against a particular group of people or person that justifies filing the money damages suit, among other things, according to the Cornell University Law School. A crime that is not considered to be a tort-crime is a wrongdoing against the public in general (Learn more.)

One who is guilty of committing a crime may be punished with jail time, and when a tort-crime is determined, the guilty party or their insurance agency, etc. may be held responsible for compensation paid to the party or parties that suffered injury. Personal injury attorneys often also elect to only accept specific kinds of negligence law cases.

Some areas of law he or she may choose to specialize in includes the following:

  • Medical accident
  • Automobile accident
  • Work related accident
  • Dental accidents
  • Motorcycle accidents
  • Assault/Battery/Rape

What are Some Differences between General Lawyers and Personal Injury Attorneys?

A general lawyer doesn’t just apply their skills to one particular area of law, which means they have knowledge in a variety of different case types. A tort attorney has specialized knowledge and skill in cases that involve personal injury and tort laws. So this means the knowledge they have about cases of bodily harm is more in-depth than a GP.

A general practitioner can be a tort specialist, and arguably can a better lawyer. After all, he understands better how all the law interrelates. For example, elder abuse law cases have elements of crimes and even involve some probate issues. But in some cases, a GP lacks the specialized knowledge for a complex area of law, such as an asbestos case. These cases are more targeted. To learn more about these issues, contact us at (213) 596-9642.

California Law—Negligence and Fireworks Explosion Incidents

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The Fourth of July means cookouts, great foods coming off of the grill, picnics, and watching fireworks with the family. While usually, this is a fun and exciting time, this year the fireworks display in Simi Valley, California was startling. The events that took place approximately five minutes into the twenty-five-minute show.

It occurred when multiple fireworks canisters exploded close to the ground. This resulted in debris to be shot out at nearby spectators causing the crowd to scatter and spectators to be burned and injured.

Simi Valley Shout Out

Our thoughts and prayers go out to the victims of this year’s Simi Valley fireworks mishap. Last Independence Day there was a similar incident, with a pyrotechnics display in the San Diego, California area. These two Fourth of July mishaps are enough to warrant exploring the legal issues involved in these types of situations.

In incidences where fireworks malfunctions have legal issues, and these typically will constitute negligence, which can vary between the parties involved in the display of fireworks that include the pyrotechnic professional(s), the manufacturer and the party or entity that is responsible for setting up the fireworks display event.

In incidences where fireworks malfunctions have legal issues, and these typically will constitute negligence, which can vary between the parties involved in the display of fireworks that include the pyrotechnic professional(s), the manufacturer and the party or entity that is responsible for setting up the fireworks display event.

Ordinary Care and “Extreme Caution” Distinguished

Under California law, just as in many other states negligence is established when there is injury or damage caused due to lack of “ordinary care.” In California and other jurisdictions when this involves dangerous activities there is a higher standard required, to use “extreme caution.” When the dangerous activities involve fireworks, then it can be questioned who may be held liable besides the pyrotechnic professional’s company.

An example that is in some ways similar it’s the owner of a shooting gallery, who is held to a higher standard of care. In the case of Warner v. Santa Catalina Island Company, 44 Cal.2d 310, 317; a patron was injured when bullets malfunctioned. The court determined the business should be held to this higher standard, because of the ammunition and explosive materials. The business had the higher standard of care to inspect and test ammunition used in close range shooting, to ensure they were safe before distributing bullets to patrons.

Duty of Care Must Consider the Potential Danger

The California Supreme Court ruled that the duty of care must be proportionate to the risk that may be reasonably anticipated to avoid consequences that could occur. This is then open to reason that the person or entity responsible for the setting up and ignition of fireworks would be held to this higher standard of “extreme care.” One case that mainly addresses this issue is Ramsey v. Marutamaya Ogatsu Fireworks Company, 72 Cal.App.3d 516.

This case involves fireworks display, where the pyrotechnics resulted in a premature explosion causing injuries to spectators, including burns. There were claims brought against the pyrotechnics professionals, the manufacturer and the sponsors of the event. This case also included the San Francisco Chamber of Commerce and a Japanese trade organization and was a non-jury trial. The defendants were found liable.

The sponsors of the fireworks display appealed, arguing that their standard of duty was to hire pyrotechnic professionals and were not liable for the negligent actions of these experts. They also argued they could not be held liable for faulty manufacturing or the setting off of the fireworks. The verdict was upheld by the California Supreme Court, who denied the appeal against the sponsors and pyrotechnic professionals. In making the ruling, the court depended upon the Restatement Second of Torts Section 423.

The details were holding employers of parties who engage in dangerous activities to be liable in the same manner they would be with any other contractor the company hires. This part of the ruling can be seen on page 525 of Ramsey. One of the other elements of this case, while the plaintiff brought a lawsuit for negligence, it also included strict liability. The reason for this theory being used was to hold the manufacturer and the individual chain of distribution entities liable for defective products or materials, which in this case were the explosive fireworks.

Plaintiff’s Duty of Care Matters

The other side of this is the plaintiff bringing an action does have a legal responsibility to a certain degree, which is to act responsibly when attending a fireworks display. Legally this is referred to as “comparative negligence and apportionment of fault.” When the individual does not take this responsibility seriously and brings a lawsuit, they may be ruled against, even if they have sustained injuries.

This can be seen in the legal action of Matthews v. City of Albany 36, Cal.App.2d 147, where the plaintiff who suffered harm by an unexploded firework from an event that took place and made the decision to explode it by himself. The court ruled against the plaintiff. This is because the show sponsor or pyrotechnics professional could not be held liable for the incident.

Heightened Standard of Care?

Due to the higher duty of attention, the incident of malfunctioning fireworks in Simi Valley this Independence Day and other incidences of this nature, the civil liability applies. The recent incident like all legal issues will depend on facts. Often these facts are not clear until the investigation has been completed. This will provide answers about if there was a malfunction.

For example, what if the fireworks had a faulty ignition or were defective in any manner? The law is that if there was negligence in the duty of care or caution used in setting the display off there is legal liability.

  • Example of Plaintiff’s Burden versus Burden of Defendant

Another answer that will be necessary is whether the spectators were in too close of proximity to where the pyrotechnic professionals were setting these materials off. For example, were the spectators behind an area that had been marked off? This would speak volumes whether the victims contributed to their misfortune. What was the hiring process by the sponsor for this event of the pyrotechnic company?

The spectators that were harmed may decide to bring civil personal injury claims against the liable entities. But this will depend on a thorough and timely investigation taking place. This study will determine what happened. And it should also provide the information necessary to prevent this type of incident from occurring during any other fireworks display.

Spoliations Sanctions a Tort?

Want to sue for the other party hiding evidence? Maybe sanctions are enough.

Closeup of female hands with shredded papers
Closeup of female hands with shredded papers

Of course most plaintiff’s lawyers in California hate it that the California Supreme Court eliminated our ability to sue for a once popular cause of action, called “spoliation.”  In some cases, it was considered a tort to spoil, or “destroy” evidence. However, as will be discussed, sanctions can still be awarded by a judge, but they typically are rare, and only the judge, and not the jury gets to decide amounts and liability, etc.

What is Spoliation?

“The spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying evidence that is relevant to a legal proceeding.[1] Spoliation has two possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference.” (Source 1.)

It used to be, that it was an independent tort in this state.  That is, a party that destroyed or concealed evidence, and that action or inaction damaged a party’s case, could be sued in a separate cause of action in tort, on top of their actual lawsuit, or defense against a lawsuit.

After all, in federal courts, spoliation, and punishment therefore, was recognized as early 1817 in The FORTUNA—Krause, (March 17, 1817), 15 U.S. 161, 4 L.Ed. 209, 2 Wheat 16 [ship seizure; concealment of documents may result in adverse inference or adverse determination], and is based upon the inherent power of courts to control abuses in litigation. And it often arises from a request for a jury instruction re adverse inference. Lewy v. Remington Arms (8th Cir 1988), 836 F.2d 1104, 1111. In any event, as California goes, so goes the country. And in Cedars-Sinai Med. Ctr. v Superior Court (1988) 18 Cal.4th 1, 17, the tort was eliminated in the Golden State (Source.)

Are Sanctions Sufficient Punishment?

Well, if sanctions gut a Plaintiff’s case, and keep them from winning, probably no sanction is enough. Right? Maybe not. There are safeguards.

Evidence Code Section 412 mandates that a jury find against a party that should have and could have produced stronger and more powerful evidence. And recently, in New Jersey, a District Judge upheld a ruling of a Magistrate’s finding of sanctions on an appeal in a liability case. The case was out of the U.S. District of New Jersey and even though there was no evidence of spoliation definitely found in the matter. What?

Litigation Hold?

Well, the decision was upheld by District Judge Noel L. Hillman in the June 30, 2011 opinion of U.S. Magistrate Judge Ann Marie Donio  in the State National Insurance Co. v County of Camden, 08-cv-5128 (D.N.J. March 21, 2012). The case involved the failure of the county to preserve its electronically stored information, when it did not issue a “litigation hold” on the email system, after notification of the State’s National’s lawsuit against it.

An appeal was filed by the County of Camden, on the premise that it could not be sanctioned, since there was no actual spoliation. The appeal was denied by the Court, since after the motion for spoliation sanctions was made, there was a determination whether the party failed in its duty to preserve. Kounelis v. Sherrer, 529 F. Supp. 2s 503, 518 (D.N.J. 2008) was cited.

The County’s efforts were found to be significantly lacking, by Judge Donio. Deniro found a failure to institute a legal hold after the triggered event should stop the automatic deletion of email. He also found that defendants must retain copies of any backup tapes. That failure the judge found “warranted the imposition of reasonable attorney’s fees and costs.”

Could The Sanctions Have Been Avoided?

The County may have avoided extremely severe sanctions, since the court did not find spoliation. The determination to compensate State National for costs incurred, according to Judge Hillman, in upholding Judge Donio’s opinion, saying “to determine the scope of the deletion or destruction,” which State National “still has suffered damages in the context of attorneys’ fees and costs.” Some would argue that the sanctions were so large, they might as well be a monetary award in tort.

The judge stated that “(p.6) as cited in footnote 2 (p. 6), State National “…requested more than $70,000 in sanctions.” Judge Hillman said that Judge Donio has the authority to determine a fair award to State National. And thus, the judge made a factual finding. And absent findings of abuse, it is unlikely the sanctions would be overturned and they were not.

Punishing Sanctions May Have Same Effect as a Damages Award

This support in the original sanctions reinforced that District of New Jersey litigants can be punished for preservation failures. This includes, whether spoliation occurred or not. The Court spent a great effort in sorting out the claim. And the fact that there was not a legal hold issue or measures taken to protect ESI. This could have been avoided, if there had been a legal hold. State National v. County of Camden shows the need for litigants to adequately preserve. After all, this is something that the County learned, by being sanctioned the hard way.

So maybe, just maybe, Jersey leads the way, and California can learn from this? Only time will tell. Of course in California, there are “issue, terminating and evidence sanctions,” which we will discuss later. In any event, discovery sanctions are not damages awarded for spoliation. Suffice it to say, a terminating sanction could gut a defendant’s defense. And with the right jury, it could almost be like winning a tort claim for spoliation in my opinion.  Clearly, one must see the forest through the trees and be creative, but great advocates do just that! We report, you decide.

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Ehline Law Firm
Personal Injury Attorneys, APLC

633 W 5th St #2890
Los Angeles, CA 90071

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