Articles Posted in Car Accidents

(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 Owen Black’s Memorandum of Points and Authorities in Support of Motion for Allocation of Attorney’s Fees and Costs Related To His Automobile Accident Case (Cal. Lab. Code, § 3860(c))

Motion for an equitable allocation of attorney’s fees and costs under section 3860(c) of the California Labor Code.

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

INTRODUCTION

Plaintiff’s counsel is like the title character in the story, The Little Red Hen. Like the little red hen who, all on her own, found the grain of wheat, planted it, tended it, and eventually mixed it with other ingredients to produce a delicious cake, plaintiff’s counsel took every step from start to finish, solely and successfully prosecuting Mr. Black’s case against the defendants who had seriously injured him in a car accident.

Plaintiff’s counsel filed the action; undertook all the discovery, including preparing for, taking, defending and attending depositions; collected all of the pertinent documents, including medical records, witness statements and accident reports; retained the experts; scheduled and attended the mediation; produced a series of damages calculations and filed a mediation brief laying out the factual basis for plaintiff’s claims regarding defendants’ liability for the car accident and for his damages. The case settled when defendants accepted plaintiff’s section 998 demand of $100,000, based on the evidence solely and exclusively gathered by plaintiff’s counsel.

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing 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.)

LEGAL ARGUMENT

A plaintiff in a personal injury action is entitled to recover from the defendant tortfeasor the “reasonable value” of medical services rendered to the plaintiff, including the amount paid by a collateral source, such as an insurer. Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298. As medical expenses fall into the category of economic damages, they represent actual pecuniary loss caused by the defendants’ wrong. (Civil Code Section 1431.2(b)(1); Hanif v Housing Authority (1988) 200 Cal.App.3d 635, 641.) Thus, when the evidence shows a sum certain to have been paid or incurred for past medical care and services, whether by the plaintiff or by an independent source, that sum certain is the most the plaintiff may recover for that care despite the fact that it may have been less than the prevailing market rate. (Hanif v. Housing Authority, supra, 200 Cal.App. at 641.)

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

In this case, the set amount of plaintiff’s reasonable medical services is that which was actually paid by Aetna Blue Cross in facilitating CMSP under which plaintiff was covered. These actual payment figures are attached as Exhibit A as Amount Paid. By virtue of this resolved amount, and pursuant to Hanif and Nishihama, these amounts paid reflect the objectively verifiable monetary losses for the plaintiff’s treatment. (Civil Code § 1431.2(b)(1)

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing 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.)

FACTUAL BACKGROUND

This case involves an automobile accident that occurred on August 9, 2008, on northbound Watt Avenue south of Marconi in the city of Sacramento, county of Sacramento, state of California. Plaintiff Randall Brown claims that defendant Brenda White was negligent in the operation of her motor vehicle that day. Plaintiff claims physical injury as a result. Defendant disputes liability as well as the nature and extent of plaintiff’s overall claims.

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

Plaintiff Brown did not seek medical attention on the date of the accident, and continued to Lake Tahoe on the date of the accident. Two days later he was seen at Memorial Hospital upon his return trip home from Lake Tahoe and was diagnosed with a closed head injury, cervical sprain, rotator cuff sprain, and a lumbar sprain. Plaintiff was discharged with instructions to follow up with his primary care provider.

After the accident, plaintiff stopped working at Blockbuster, and lost his health insurance benefits. He then sought and received benefits through CMSP, which provides health insurance for low-income indigent adults in thirty four rural counties in California. This program is facilitated by Aetna Blue Cross. Brown continued to treat with a number of different facilities, and the records attached as Exhibit A show the various medical providers he has sought.

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The following blog entry is written to illustrate a common motion filed during the pre-trial stage of civil litigation. Reviewing this kind of briefing 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.)

DEFENDANTS’ MOTION IN LIMINE TO SET REASONABLE VALUE OF MEDICAL SERVICES

SUBJECT EVIDENCE: REASONABLE VALUE OF MEDICAL SERVICES AS THAT AMOUNT REDUCED OR ADJUSTED BY MEDICAL PROVIDERS PRIOR TO PAYMENT BY NATIONAL INSURANCE CO.

Basis For Set Value: Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641; Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 306-309; Civil Code Section 1431.2(b)(1).

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

INTRODUCTION
Under California Law, the most a personal injury plaintiff can recover for medical services is the amount that has been paid or incurred for those services, even if that amount is less than the market rate. Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641; Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 306-309. Defendants Brenda White and Donna White hereby move this Court for an order setting the reasonable value of medical services for plaintiff’s medical providers to that which National Insur. Co. paid the providers on behalf of plaintiff Randall Brown due to his coverage through County Medical Services Program (CMSP), which coverage is facilitated by National Insur. Co. CMSP provides low-income indigent adults with health insurance in thirty-four rural counties in California.

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The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing 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.)

CONCLUSION

It is respectfully submitted that the plaintiff in this matter did carry her burden of proof in establishing that she suffered both economic and non-economic harm as a direct result of the automobile accident in question.

The testimony of the plaintiff was that she sought medical care and treatment immediately after this accident and was admitted to Kaiser Hospital’s emergency room where she was examined, found to have suffered a physical injury, and was administered powerful narcotics as a result of her pain and suffering. Additionally, she testified that as a result of this accident she became nauseated and was vomiting which further required medical care and treatment for a condition which was not present prior to this accident occurring. The plaintiff’s testimony as to her loss of income as a result of the off work notice given by physicians at Kaiser also demonstrated economic damage.

The court, by allowing counsel for the defendant to use exhibits over and over and over again after objections were made to their introduction constituted irregularities in the proceeding and attorney misconduct. To have allowed defendant’s counsel over objection to question witnesses concerning medical records that the witness did not author, and which the witness did not rely on in reaching opinions and conclusions for the purpose of attempting to impeach the plaintiff’s claim of certain injuries is sufficient to grant this motion for new trial. What counsel for the defendant attempted to do was to show by an absence of record, without establishing a foundation that the record even inquired or dealt with the subject matter of the personal injuries prejudiced this plaintiff and apparently influenced the jury to disregard the law with regard to causation.

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The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing 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.)

Based on the fact that there was no evidence to show that the plaintiff was under any medical care and treatment for either her back or her neck prior to this automobile accident, and given the fact that the plaintiff did seek immediate medical care and treatment which was rendered at Kaiser, the evidence must be given weight to support a finding that the plaintiff was harmed as a result of the defendant’s imminent liability.

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

The question is not whether or not the plaintiff recovered from her injuries over time, but instead is a question of whether or not she was injured or harmed as a result of this negligent conduct and as such incurred both economic and non-economic losses. The testimony in this case was not refuted by any evidence presented by the defendant that the plaintiff following this accident was admitted to the emergency room at Kaiser, received medical care and treatment, was administered powerful narcotics, that the plaintiff followed up her injuries with her primary care physician within two (2) days of the date of this accident, that the plaintiff was off work for a period of time as a result of her injuries, and that the plaintiff suffered pain and suffering as a result of this accident.

Continue Reading ›

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing 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.)

THE VERDICT WAS AGAINST LAW

The ground for new trial that the verdict is against law, is separate and distinct from other grounds listed in Code of Civil Procedure section 657, and does not involve the weighing of the evidence. Rather, the jury’s verdict is against law if it is unsupported by the evidence. (See Sanchez-Corea v. Bank of America. (1985) 38 Cal.3d 892.)

In the case of Kruse v. Bank of America. (1988) 202 Cal.App.3d 38, at 51 and 52, the court stated that the test for substantial evidence is:

Substantial evidence, however, is not synonymous with any evidence. To constitute sufficient substantiality to support the verdict, the evidence must be “reasonable in nature, credible and of solid value.” It must actually be “substantial” proof of the essentials which the law requires in a particular case. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Here, there is no reasonable or credible evidence to deny that this plaintiff was in fact injured as a result of this accident and that such injuries required medical care and treatment all to the economic and non-economic damage of the plaintiff.

Continue Reading ›

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing 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.)

THERE WAS IRREGULARITY IN THE PROCEEDINGS RELATING TO THE COURT’S ALLOWING EVIDENCE

Over the objection of counsel for the plaintiff, defendant’s counsel engaged in what can be described as nothing less than misconduct.

In the case of Smith v. Covell. (1980) 100 Cal.App.3d 947 at 959 the court says that questions which calls for patent hearsay evidence cannot be brought in the back door on cross-examination of a party or for any other reason. That court rejected at page 960 claims by counsel that such questions were for the purpose of impeachment holding that such claims do not barr the evidence from being presented based on the hearsay rule. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In this case, over objection of counsel, defendant’s attorney questioned Dr. Lee and Dr. Gold about medical records which were not admissible under Evidence Code section 1271 or 1272. Objections were made at the time counsel for the defendant attempted to question the doctors concerning medical records which they did not prepare and which did not contain any information concerning the claims of the plaintiff. All of this was for the purpose of trying to demonstrate that the plaintiff did not complain of neck injuries over an extended period of time.

Such records include Exhibit 181 for identification which was written on March 17, 2005, by unknown persons. Counsel for the defendant asked questions concerning this document over objections that it lacked foundation, and was nothing more than hearsay to elicit responses that this document does not show any claim for a neck injury.

Continue Reading ›

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing 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.)

The testimony of plaintiff, Alice Hall, was that not only did this accident cause her injury which led to her admission to the emergency room on the night of this accident, but she also suffered economic damages in that she was off work for three (3) days following this accident. According to her testimony she was not able to work on March 6th, March 7th and March 9th. Based on her income level of slightly more than Fifty-Six Dollars ($56.00) per hour her economic damage immediately following this accident was One Thousand Two Hundred Thirty-Three Dollars ($1,233.00). No evidence was submitted by the defendant to refute that economic loss based on her inability to work for a period of time following this accident.

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

While the defendant in this action provided considerable evidence concerning Ms. Hall’s neck injury, no evidence was ever submitted which refuted her low back injury. Thus, if this jury had followed the instructions given by this court under CACI 3900, 3901, 3903, 3903a, 3903c, and 3903d the jury would have had to have found that the negligence of Charles White, which was admitted, was a substantial factor in causing harm, as defined by the court to this jury. Once Question No. 1 was answered in the affirmative, then the jury had an obligation to determine the nature and extent of the economic and non-economic damages to be awarded to the plaintiff. However, in this case, because the jury did not follow the law as given to it by the court those questions were not answered.

Continue Reading ›

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing 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.)

THE EVIDENCE IS CLEARLY INSUFFICIENT TO JUSTIFY THE VERDICT

The evidence in this case is overwhelming that the plaintiff, Alice Hall, did in fact suffer an injury as a result of this accident.

In that regard, attached hereto and incorporated herein by this reference and marked as Exhibit A is a copy of the traffic collision report which was reviewed and referred to by Mr. Berg and Dr. Wagner. On page 3 of 5 the report indicates that there is a complaint of pain to the low back of Ms. Hall as a result of this accident.

Additionally, marked as Exhibit 179 for identification in the trial was the emergency room record concerning Ms. Hall’s admission to Kaiser. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff, Alice Hall, testified that following this accident she was transported by her husband to the urgent care facility of Kaiser. Upon admission to the urgent care it was determined that she should be transferred immediately, according to her testimony, to the emergency room.

Exhibit 179 for identification, which is marked as Exhibit B and attached hereto clearly indicates that at the time of her admission on the date of this accident, March 5, 2005, Ms. Hall did complain of low back pain. In fact, Exhibit 179 shows that not only radiology was performed on her low back, but she was administered morphine as a result of the pain which she incurred.

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