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/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

INDEPENDENT MEDICAL EXAM (IME)

Plaintiff attended a defense medical examination on July 24, 2008, conducted by Dr. Stuart U.. Dr. U. is a board certified neurologist and is, also, a board certified psychiatrist. Dr. U. could find nothing wrong with plaintiff. Dr. U. suggested that plaintiff’s complaints of pain and achiness might be related to his heavy work for Williams-Sonoma (e.g., moving furniture and other items to and from photo shoots at various locations). Dr. Stuart U. concluded that plaintiff has no restrictions and needs no ongoing treatment as a result of the accident. At no time, excluding the x-rays of plaintiff’s feet in the ER and by Dr. V. and the findings by Dr. Z., the gastroenterologist, did any doctor make any objective findings that correlate with plaintiff’s plethora of subjective complaints.

Doctors must believe their patients, but jurors need not do so. Thus, this trial will involve the credibility of plaintiff, both as to liability and as to causation of injuries and damages. There are a number of inconsistencies with respect to plaintiff’s history and complaints as set forth in medical and other records, not specified herein.

Alleged Special Damages
a. Medical Specials
Plaintiff’s counsel informs us that plaintiff’s medical specials total approximately $18,000.00; the defense has been able to determine only $4,100.00.
Plaintiff’s Vehicle Code and Traffic Code Violations

California Vehicle Code Section 21200(a) provides, in substance, that every person riding a bicycle on the highway is subject to all of the provisions applicable to the driver of a vehicle. Plaintiff is culpable of violating the following California Vehicle Code sections that directly caused the accident, thus creating a negligence per se situation:

Vehicle Code Sections
21201(d)(1) Failure to have a headlight at night
22450(a) Failure to stop at stop sign
21650 Failure to ride bicycle on right half of roadway
21802(a) Failure to stop at stop sign and yield right of way
21804(a) Failure to yield right of way on entering or crossing highway

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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/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Plaintiff alleges that as a result of the automobile accident, he also suffered lingering pains that consisted mostly of: headaches, neck aches, back and low-back pain, a knee that seems to dislocate or give-way, ankle pain and cramping of his feet. Plaintiff’s current residuals are alleged to be primarily his feet/toes, neck and low-back. Plaintiff alleges that his current residuals are, essentially, (a) pain and stiffness at the three fracture sites and painful ambulation, (b) crepitus in plaintiff’s neck, a crackling not associated with pain and (c) mild recurrent low-back pain. Plaintiff also fears the onset of arthritis as a result of his injuries.

Plaintiff’s Treatments
After discharge from the ER, plaintiff’s next medical visit was seven months later, when plaintiff was first examined by his doctor, Dr. Kyle X., a generalist, on May 22, 2007, seven months post-accident. The given reason for the examination, as Dr. Kyle X. testified at his deposition, is that plaintiff’s chief complaint was pain to the right groin, which is what brought plaintiff to Dr. Kyle X.. The examination was not, according to Dr. Kyle X., because of the accident. Dr. Kyle X. was told about the accident, but did not consider that he was treating plaintiff as a result thereof. Dr. Kyle X. prescribed physical therapy, lab tests and a return to his office. Dr. Kyle X.’s records reflect that his final determination was Impression: Well CPE (i.e., that plaintiff was found to be well after a Comprehensive Physical Examination ). Plaintiff did voice complaints about low-back and abdominal pains and Dr. Kyle X., therefore, told plaintiff to see a neurologist, a Dr. Stan Y.. Plaintiff did not do so, plaintiff did see a different neurologist, Dr. Alice W., but not until April 11, 2008, about 16 months post-accident.

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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/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Alleged Injuries

It is not disputed that plaintiff sustained a fracture of each of his big toes and, also, a fracture of the second toe of his right foot. It is, also, not disputed that plaintiff currently has some reduced range of motion in curling the toes that were fractured (flexion) and that in the first phalange of his second right toe there is about 15degrees of obliquity with respect to the second phalange thereof.

Additionally, it is not disputed that plaintiff sustained abrasions (road rash) to the top of his head, his face, abdomen, both hands and both knees. Said injuries were described in the paramedic records and in the ER records at General Hospital. There was no loss of consciousness and plaintiff’s GCS (Glasgow Coma Scale- a measure of brain injury potential) was a perfect 15 out of 15. Plaintiff was given a small injection of morphine sulfate and was given a prescription for Vicodin tablets. Plaintiff underwent x-rays of his chest and neck at the ER, which were negative.

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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/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Description of Street at Accident Scene

The intersection of River and Ridge is controlled by a tri-light signal system. There is no tri-light signal facing the frontage road or facing the sidewalk; the tri-light signal faces the Boulevard (i.e., the four main travel lanes of River). The frontage road has a stop sign controlling each corer; the sidewalk has a walk/don’t walk signal at River and Ridge.

At the area of the accident, River is a relatively new Boulevard Project, inaugurated in the summer of 2006. The Boulevard has two through lanes going north and two through lanes going south; these four through lanes are divided by a raised concrete median, four feet wide, planted with trees. There is no parking along the through-lanes, which are each 11 feet wide (i.e., narrower than a standard freeway lane). Instead, there is another four-foot wide raised concrete median at each outer edge of the through lanes, also planted with trees. These latter medians border the through lanes on the east and west edges thereof. Next, there is an 18-foot wide paved street, marked One Way eastbound and westbound (also part of the Boulevard Project) for motorized traffic, bicycles and for parking. The parties refer to this street as the Frontage Road.

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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/personal injury case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

Defendant’s Trial Brief
Type of Action
This is a two-party bodily injury action arising from a traffic accident involving a bicycle and an automobile.Factual Summary
Description of Accident

The defense contends that plaintiff is solely to blame for causing the subject accident (hereafter “the accident” ) and defendant is not liable for any injuries or damages that plaintiff sustained.

This is a contested liability, contested injuries/damages action arising from a bicycle versus auto collision that occurred on Halloween night, October 31, 2006, at approximately 9:20 p.m. Defendant Tina Lu, then age 23, was making a right turn from northbound River Drive onto Ridge Road, driving her 2004 Toyota Camry. Plaintiff Paul Nathan, then age 22, was riding a bicycle without a helmet, down the hill on River toward Ridge. Prior to defendant’s right turn, the parties were traveling parallel to each other (northbound), though not on the same street, as explained below. It is contested whether plaintiff was riding on the sidewalk as contended by defendant, or whether plaintiff was riding on the Frontage Road (defined below) as contended by plaintiff. In either event, plaintiff was attempting to cross Ridge and continue northward at the same time that defendant was attempting to turn right and head eastbound on Ridge. The parties were at right angles to one other at the moment of impact.

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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/personal injury case and its proceedings.)

Plaintiff will contend the automobile accident happened after 9:00 p.m., on Halloween Night. The evidence will demonstrate this location, just a few blocks from University Avenue, was particularly congested with pedestrian traffic at that time. Defendant was driving too fast in view of the prevailing conditions and failed to see Mr. Nathan before starting her right turn. Her turn took her across another lane of northbound traffic on River Drive and through a pedestrian crosswalk which is controlled by a signal on the same sequence as north-south River Drive traffic.

Plaintiff’s Damages

Mr. Nathan was taken to Sacramento General’s trauma center via ambulance immediately after the accident. He underwent a variety of x-rays and other diagnostic tests, was given IV Morphine and then Vicodin prior to being released the following day. Because he had sustained fractures in both feet he was sent home by taxi and with immobilizing devices on both feet. He was off work for four to six weeks and was subsequently treated for persistent headaches; abdominal pain; low back pain and bilateral foot pain.

During the course of treatment he was seen in consultation by two neurologists, and a podiatrist. He also had a very brief course of physical therapy. He has continuing complaints of occasional headache pain and of stiffness, lack of mobility and pain in both feet. There is every probability he will suffer from arthritis in both feet and will do so for the remainder of his life.

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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/personal injury case and its proceedings.)

The intersection in question is, to say the least, unusual. There is a stop light that controls north and southbound traffic on River Drive. This light is visible for quite some distance (particularly at night). At the time of this accident the newly-constructed roadway had only recently been opened to traffic. It was an ancillary project as part of the Central Freeway Replacement. It is disputed whether there was or was not a stop sign for the bicycle path portion of River Drive. Plaintiff contends there was no sign in place at the time of the accident.

The investigating officer testified at deposition as follows:
Q. Is there a stop sign at the corner at that Frontage road, that you’re aware of?

A. I don’t believe so….And I don’t believe there’s a stop sign there, but I’m not a hundred percent sure. It’s not indicated in the report. So I would say, there is no stop sign there.

Photographs-of the intersection taken well after the accident do show a stop sign, although it is substantially obscured by trees which were planted along the right curb of the bicycle path. Various photographs of the accident scene demonstrate its appearance (copies of which are available for review). These photographs likewise illustrate the problematic nature of the intersection.

Defendant contends the portion of the River Drive roadway to the right of the divider is not a bicycle path. They prefer to call it a frontage road. The nature of the roadway and its use is a question of fact.

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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/personal injury case and its proceedings.)

Plaintiff’s Trial Brief
Factual Background and Disputed Issues

This is a traffic collision personal injury action that arises from an October 31, 2006 accident. Plaintiff, Paul Nathan, was riding on the bicycle path portion of River Drive. Defendant, Tina Lu, was driving on River Drive after having exited Highway 50 on her way home from working in El Dorado Hills. Plaintiff’s portion of River Drive is divided from the main lanes by a divider. At the intersection of River Drive and Ridge defendant made a right hand turn across the path of plaintiff’s bicycle. The bike’s front wheel struck the car and Mr. Nathan was thrown over the car and onto the pavement.

Both vehicles had been moved before the investigating officer arrived. Mr. Nathan was taken from the scene via ambulance prior to being interviewed by the officer. There were no skid marks noted by the officer, no debris in the street noted and thus no accurate means of determining the point of impact or the point of rest of either the vehicle or of Mr. Nathan’s bicycle.

Defendant asserted plaintiff had ridden into the street from the sidewalk. The officer concluded the bicycle had been traveling on the sidewalk and thus entered the intersection in the crosswalk.

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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 automobile accident/insurance coverage case and its proceedings.)

Defendant’s underwriters state that they act as soon as they receive the relevant medical records. Yet underwiter Ms. Smith did not act in this case after receiving Dr. Xavier W.’s medical report concerning Bob Lawrence on March 2, 2001. See defendant’s statement of facts, fact numbers 62-65. She could have rescinded the contract based on that information but chose not to do so. Instead, she waited three more months to act, during which time Mr. Lawrence sustained injuries which defendant later chose not to cover. She did this, too, without alerting plaintiffs that there was a possibility their coverage might be terminated. Had she informed them of this possibility in a timely manner, plaintiffs could have obtained replacement coverage that would have been in effect at the time of Bob Lawrence’s automobile accident.

Furthermore, Ms. Smith testified that her practice was to rescind a contract if allowing the coverage to continue would cost Blue Shield more money, but not otherwise. In addition, upon recent review of defendant’s first motion for summary judgment, it appears that Ms. Smith and Ms. Bird have submitted declarations in support of the present motion that are materially different from those they submitted the first time around. Plaintiffs will utilize the additional time they request herein (argument III, infra), in part, to examine these apparent discrepancies in more detail.

Another serious matter is defendant’s intentional omission of parts 4-9 of Sally Lawrence’s paper application from the online version of the application which defendant includes in its motion. The omission is significant for several reasons. First, the omitted parts contain critical information regarding Sally Lawrence’s irritable bowel condition, her treatment history and Blue Shield’s consequent duty to make further inquiry before issuing coverage. The language of those parts also reinforces plaintiffs’ contention that Sally Lawrence believed the balance of the application applied to her only and not to Steve. Those parts also contain evidence that Mr. Shulman was a Blue Shield agent and that he falsely attested that he had asked each question in the application exactly as set forth.

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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 automobile accident/insurance coverage case and its proceedings.)

Blue Shield’s argument that this court should conformist ruling on this motion to a statement of decision recently signed by a Los Angeles County Superior Court Judge in another Blue Shield case is specious. The facts of the two cases are entirely dissimilar. Further, the court in that case did not consider the Court of Appeal’s directive that plans must investigate outside the applications before making initial coverage decisions. His statement that the Lawrence decision “does not require a plan to check every statement in every application to determine whether the applicant is lying” entirely misses the mark.

The opinion merely requires plans to make a reasonable inquiry outside the application. Whether a plan did that in a particular case will be a question of fact for the jury. Next, the Los Angeles case is now on appeal. Finally, as explained above and elsewhere in this opposition, the Court of Appeal has determined that the material issues presented in this case are disputed and require trial on their merits. They cannot be resolved on summary judgment.

PLAINTIFFS HAVE DEMONSTRATED THEIR ENTITLEMENT TO A TRIAL ON THE ISSUE OF PUNITIVE DAMAGES.It is clear that Blue Shield conducted business in 2000 just as it had before the enactment of Health and Safety Code section 1389.3. It did not change its underwriting practices in the slightest manner in the nine years preceding the plaintiffs’ application.

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