Articles Posted in Car Accidents

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

ARGUMENT
PLAINTIFF IS THE PREVAILING PARTY AND IS ENTITLED TO ALL OF HER STATUTORILY RECOVERABLE COSTS
Plaintiff was Entitled to Bring Her Case In Unlimited Jurisdiction

At the time of filing the subject lawsuit, Ms. Hill had economic loss totaling $27,000. As a result, at the time of filing her lawsuit, the amount in controversy exceeded $25,000. California Code of Civil Procedure § 85(a) defines a limited civil case as one where:

(a) The amount in controversy does not exceed twenty-five thousand dollars ($25,000). As used in this section, amount in controversy means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien, that is in controversy in the action, exclusive of attorneys’ fees, interest, and costs.

Since Ms. Hill had economic damages which exceeded $25,000, it was proper for her to file her case in unlimited jurisdiction. Filing the case in limited jurisdiction would have required Ms. Hill to concede her reasonable and necessary medical expenses, her lost wages and any non-economic damages.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

During the litigation, defendants made two 998 offer’s to compromise. The first for $4500, the second for $7500. Plaintiff made two 998 offers to compromise. The first for $45,000, and the second for $18,000. The second 998 offer was served on the defendants on January 6, 2010.

Prior to making the second 998 on offer to compromise in January of 2010, Plaintiff’s incurred the following recoverable costs:

a. Filing fees, $371.90;b. Service fees for John Lee, $60;c. Service fees for Sophia Lee, $83;d. Hill deposition transcript, $507.45;e. Lee deposition transcript, $329;f. Counsel travel to Lee deposition $368.;The total of these costs are $1,719.35

Following the 998 offer to compromise, Ms. Hill incurred the following recoverable costs:

a. Deposition of Dr. White, $308.05
b. Deposition of Dr. Ross, $384.80
c. Service fees for Sgt John Smith, $318.00
d. Witness fees for Linda Lane, $372.20
e. Witness fees for Alberto Miller, $35.00
f. Jury fees, $538.26
g. Court recorder fees, 400.00
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

Plaintiff Paula Hill’s Opposition to Defendants’ Motion to Strike Memorandum of Costs or, in the Alternative, Motion to Tax Costs
INTRODUCTION

Plaintiff Paula Hill was victorious in her jury trial against defendants Sophia Lee and John Lee. Ms. Hill was forced into trial by defendants who refused her section 998 offer which was only $1550 more than the jury trial verdict. Now, having lost at trial and facing a judgment which, when combined with Ms. Hill’s recoverable costs, exceed Ms. Hill’s 998 offer to compromise, defendants ask this court to strike all of Ms. Hill’s costs. To do so would be plainly unjust. Ms. Hill is the prevailing party, she had a good faith belief she would recover more than $25,000 at trial when she filed the lawsuit, and she made a reasonable offer to compromise to avoid the unnecessary costs of litigation. This court should not punish Ms. Hill because the defendants incorrectly valued this case.

PERTINENT FACTS

This case arose from a car accident which occurred in Sacramento on March 1, 2008. As a result of the accident Ms. Hill suffered a strain in her neck and back. Ms. Hill treated with various treatment providers including an acupuncturist and two chiropractic offices. After about a year of consistent treatment, Ms. Hill fully recovered from her injuries.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

White ‘s Lien Amount Must be Reduced by $10,682.58, Which Will Directly and Exclusively Benefit Mr. Black, Not his Counsel.

Mr. Black is legally obligated, based on his “Retainer Agreement (Contingent Fee)” with the XYZ firm to pay that firm 40% of his recovery. In addition, that agreement requires him to pay costs for the prosecution of this action. Those amounts will be deducted from the $100,000 settlement amount.

But White then proposes deducting its full workers’ compensation lien of $23,717.22, from what Mr. Black has left from his $100,000 recovery, despite that White did nothing that effectuated that recovery amount. If White is permitted this unreasonable deduction, that will mean money coming from Mr. Black’s pocket. In other words, Mr. Black will walk away with considerably less — only about $31,000. This is completely inequitable, which is why California law requires an allocation to be made.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff proposes that White’s lien be reduced by a total of $10,682.58. Plaintiff has calculated the reduction by (1) deducting 40% of the lien amount as White ‘s equitable share of attorney’s fees ($9,486.88); (The 40% calculation is based on the percentage of attorney’s fees owed by Mr. Black under his retainer agreement with his counsel.), and (2) deducting 24% of the costs amount as White’s equitable share of costs ($1,195.70). (The 24% calculation is based on the fact that the workers’ compensation lien amount of $23,717.22 is 24% of the total settlement amount of $100,000.) The sum of $9,486.88 and $1,195.70 equals $10,682.58.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

It was plaintiff’s counsel — the XYZ firm, and particularly Ms. Brown — whose sole efforts led to the successful settlement of this action for defendants’ automobile policy limits.

It was the XYZ firm that did all of the discovery in the case; it was the XYZ firm that collected and subpoenaed all the medical records and other records dealing with liability and damages issues. It was the XYZ firm that interviewed witnesses; and it was the XYZ firm who took depositions of key witnesses and defended the depositions taken by defendants’ counsel. It was the XYZ firm that calculated Mr. Black’s past and future lost wages as well as medical expenses, further ensuring that all of his medical expenses were accounted for in the damages calculations.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It was the XYZ firm that arranged the mediation, and filed a mediation brief that laid out all the factual detail supporting Mr. Black’s claims regarding defendants’ liability for the collision and for Mr. Black’s damages. It was the XYZ firm that rehabilitated the testimony of Dr. Lee regarding the need for future surgery for Mr. Black, based on medical evidence that firm had collected and which Ms. Brown presented to Dr. Lee during his deposition. It was the XYZ firm that made the section 998 demand before White ever even intervened in the case, and it was that demand that the defendants, following and as a result of all the work the XYZ firm had done, accepted.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

To the same effect are Quinn v. State of California, 15 Cal. 3d 162, 167-69, 124 Cal. Rptr. 1 (1975) (holding that an employee who obtains a judgment in a third-party action that creates a fund from which the compensation insurer’s lien is satisfied, in whole or in part, can require the passive beneficiary to bear the fair share of the litigation costs, including attorney’s fees); Hartwig v. Zacky Farms, 2 Cal. App. 4th 1550, 1555-56, 3 Cal Rptr. 2d 828 (1992) (holding that merely retaining separate counsel or filing a complaint in intervention or a lien, with little else, does not satisfy the standard of “active participation”; there, the declaration offered by the employer’s workers’ compensation insurer’s attorney was insufficient to support a finding that the lienholder had actively participated in the case); and Kindt v. Otis Elevator Co., 32 Cal. App. 4th 452, 458-60, 38 Cal. Rptr. 2d 121 (1995) (same essential holding).(These cases were decided under section 3856(b), Cal. Lab. Code, referring to judgments rather than settlements. But situations arising under sections 3856 and 3860 must be treated alike. E.g., Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 705-06, 709, 145 Cal. Rptr. 210(1978).)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

These cases all hold that where an employer or his workers’ compensation insurer retains separate counsel, files a complaint in intervention and even undertakes a litigation task or two, that participation is nominal and the intervenor becomes a passive beneficiary of the common fund.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

ARGUMENT

White’s Lien Must be Reduced Because Plaintiff’s Counsel Alone Successfully Prosecuted This Action.

While an employer or its workers’ compensation insurer may seek from any settlement between an injured employee and a third-party tort-feasor, reimbursement for compensation he has paid to the employee, that reimbursement is reduced by “the reasonable expenses incurred in effecting such settlement, including costs of suit, if any, together with a reasonable attorney’s fee to be paid to the employee’s attorney, for his services in securing and effecting settlement for the benefit of both the employer and the employee.” See Cal. Lab. Code, § 3860(b) and (c).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This principle applies to the situation where, as here, settlement is effectuated … solely through the efforts of the employee’s attorney. See Cal. Lab. Code, § 3860(c).

In Kaplan v. Industrial Indem. Co., 79 Cal. App. 3d 700, 702-03, 709, 145 Cal. Rptr. 210 (1978), the court of appeal ruled that this principle applies even where the employer or his workers’ compensation insurer has retained separate counsel as long as the settlement, which represents a common fund from which the lien is paid, is the result of the efforts of the plaintiff’s attorney.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

The XYZ firm also submitted a 16-page mediation brief including all of the facts supporting plaintiff’s claims of liability and damages against the defendants. Prior to the mediation, the XYZ firm also made a section 998 demand for the defendants’ automobile policy limits of $100,000. The firm offered evidence at the mediation that Mr. Black’s economic damages totaled $124,000 and his total damages approached $250,000. At the mediation on April 8, 2010, the defendants’ counsel agreed that if the XYZ firm’s damage calculations were correct and if Dr. Lee would confirm under oath the information about medical damages and causation the firm had collected and presented at the mediation, defendants would accept plaintiff’s statutory offer to settle the case for their auto policy limits of $100,000.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants took Dr. Lee’s deposition on May 13, 2010, which Ms. Brown personally attended. While being questioned by the defense attorney, Dr. Lee was unable to give an opinion related to plaintiff’s need for future surgery. Ms. Brown then presented Dr. Lee with exhibits she had prepared depicting the MRI findings, asking him a series of questions relating to Mr. Black’s injuries, whether the accident was the causative factor for those injuries, as well as his need for future surgery. She was able to rehabilitate Dr. Lee’s testimony related to questions asked by the defense attorney at the beginning of Dr. Lee’s deposition.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

The XYZ firm also retained a nurse to prepare a medical chronology; an investigator to obtain a statement from Sandy Silverberg, who had witnessed the accident; an accident reconstruction and bio-mechanical consultant; and a radiologist. The firm prepared Mr. Black for his deposition and attended that deposition; prepared for and attended the deposition of Ms. Silverberg; and prepared for and took the deposition of defendant Melinda Smith.

The XYZ firm prepared two case management conference statements and attended two case management conferences, one in October 2009 and the other in May 2010.

The XYZ firm set up the mediation and retained the mediator.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Prior the mediation and in preparation for it, Ms. Brown met with Dr. Daniel Lee, M.D., the orthopedic surgeon who had operated on Mr. Black’s left shoulder, to collect further evidence for the mediation on the issue of causation and damages. The XYZ firm also prepared numerous calculations regarding Mr. Black’s past and future wage losses, his billed amount of medical expenses and his future medical expenses for the mediation.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident and personal injury case and its proceedings.)

PLAINTIFF’S COUNSEL SOLELY LITIGATED THIS CASE TO A SUCCESSFUL CONCLUSION; WHITE’S INVOLVEMENT WAS NOMINAL

Plaintiff’s counsel, the Law Offices of XYZ, and particularly its principal, Marcia Brown, were solely responsible for securing the $100,000 settlement from defendants in this case. White did nothing in that regard, and it was otherwise only nominally involved in the case. It was the XYZ firm that, in May 2009, filed suit against the defendants on behalf of Mr. Black who had suffered serious injuries when defendant Melinda Smith ran a red light and slammed into his truck while he was in the course and scope of his employment. This is a reference to the Declaration of Marcia Brown, dated July 19, 2010, filed in support of this motion.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It was the XYZ firm that thereafter propounded copious discovery (form interrogatories, special interrogatories, document requests and requests for admission) on the defendants, and thereafter reviewed defendants’ discovery responses. Plaintiff’s firm also responded to defendants’ copious discovery requests (general interrogatories, special interrogatories, document requests, and requests for admissions).

The exhibits referred to are attached to Ms. Brown’s declaration. Exhibit 1 is a time line showing the progression of the suit and the XYZ’s firm work on it.

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