Articles Posted in Personal Injury

The following blog entry is written to illustrate an example of a personal injury case. Reviewing this kind of lawsuit 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 personal injury lawsuit and its proceedings.)

Plaintiff, 36, arrived with a friend October 1, 2009 at Access ABC of the ABC Area. The Area land, located in Sacramento County, was owned, managed and supervised by the State of California. Plaintiff rode his 2005 Honda CRF 450 dirt bike into the staging area at approximately 9 a.m., when he hit a cable loosely connected to two portable concrete barriers, lost control of his bike, was thrown into the air and landed on his head. The barriers were allegedly set up by Game and Fish employees.

He was air lifted to the hospital and underwent surgery on his cervical spine, moved to ABC Hospital Oct. 3. He was discharged Dec. 2.

Plaintiff and his mother filed a complaint in the Sacramento County Superior Court against the State of California for gross negligence and negligence.

Plaintiff claimed the cable was brown, not taut, not properly painted or marked by strips of flags. It reportedly sagged to a height of barely five inches above the ground and that vegetation and brush obscured visibility. He was also wearing a helmet, chest protector, riding boots, knee and elbow pads, gloves, and polarized goggles at the time of the incident.

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 insurance bad faith lawsuit and its proceedings.)

Universal Street was damaged in 2007, shortly after a sale collapsed. There was no rental income of the property at the time. This is information is known to XYZ, that is why they are denying the claim. The Halls have provided documents showing a sale price for the house two months prior the fire. Since the fire, property values have dropped. This places a variable in the equation that is hard for plaintiffs to adequately calculate a hard figure. Plaintiffs are not required to submit expert opinions at this point, and to guess would not be fair.

Plaintiffs are under the belief that defendants are not willing to accept the amount that plaintiffs are requesting to settle this lawsuit for two reasons: One they want to establish that the plaintiffs damages are over $75,000 per recent Request for Admissions, in order that they may return to federal court, now that all state defendants have been dismissed. Two: they want to maintain the litigation while seeking to lock plaintiffs into a fixed figure before discovery is completed. If these motives are true, in fact, XYZ’s motion to compel was brought for improper reasons.

REQUEST FOR SANCTIONS ARE UNWARRANTED

Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery … but the court may not impose sanctions which are designed not to accomplish the objects of discovery but rather to impose punishment, as quoted in Vallbona v. Springer, 43 Cal.App.4, 51 Cal Rptr. 2d 311.

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 insurance bad faith lawsuit and its proceedings.)

XYZ’S ARGUMENT FOR A STATEMENT OF DAMAGES IS WITHOUT MERIT IN THAT THEY ARE ALREADY AWARE OF THE DAMAGES SOUGHT BY PLAINTIFF
Plaintiffs Pleaded Damages to be Shown by Proof at Time of Trial

Plaintiffs filed their original complaint on May 9, 2008. At the time, plaintiffs were under the belief they were entitled to certain damages and to continue plead such in the First Amended Complaint, until proof may be obtained. At the time that the statement of damages were requested, plaintiffs produced a certain figure of for their damages. Plaintiffs had not calculated any other damages and asked clarification as to XYZ’s interpretation of the Code and what in particular did they additionally want from plaintiffs. XYZ now states plaintiffs are also seeking attorney fees and emotional distress damages.

Plaintiffs’ letters as indicated above included the attorney fees that the Halls have paid. As to the emotional distress damages, this has not been determined at this time and this is the first time that XYZ has clarified this issue.

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

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https://www.moseleycollins.com/lawyer-attorney-1245027.htmlThe 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 insurance bad faith lawsuit and its proceedings.)

ARGUMENT
MOTION TO COMPEL IS BROUGHT FOR AN IMPROPER PURPOSE WHEN ALL FAITHFUL EFFORTS HAVE BEEN MADE TO COMPLY WITH REQUESTS

Plaintiffs acted in good faith and with reasonable diligence in their responses to XYZ’s questions. Plaintiffs are aware of their obligations to investigate if they lack information (Smith v. Circle P. Ranch Co. Inc. (App. 2 Dist. 1978) 150 Cal.Rptr. 828., however, plaintiffs are not able to answer many of the questions that XYZ has propounded. Plaintiffs have asked XYZ essentially what in particular they are seeking, and XYZ responded, it was not up to them to determine this fact. Well, then how can plaintiffs?

Mr. Hall is 84 years old. Though he is cooperative, he is not one to have long discussions and analysis of facts in one setting. It has taken a series of conversations to get additional facts. His allocation of time is short, and he does not provide all that is necessary immediately. He asks for patience and time when things are requested, in order that he can think and look for items. Plaintiffs responses were not willfully meant to evade or avoid answering.

Plaintiffs have produced all documents in their possession as stated above and there is no further responses as of this date to produce. Plaintiffs did serve the Responses to Document Production, contrary to XYZ statements. XYZ also admits receipt of documents, but because they are few in number, they suggest plaintiffs must be withholding other items and are not responsive. No, plaintiffs do not have any. Plaintiffs only want to settle, and whatever it takes to do so, It is not in their best interest to hide documents.

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 insurance bad faith lawsuit and its proceedings.)

Special Interrogatories

XYZ served 54 special interrogatories without declaration for plaintiffs to respond. Plaintiffs answered 35 and informed XYZ they should provide a declaration for response to the additional special interrogatories. XYZ provided the declaration and the plaintiffs answered to the best of their ability.

XYZ contends that Mr. Hall’s responses to the first 35 special interrogatories and form interrogatories were incomplete and requested further responses without objections. Plaintiffs provided supplemental responses and letter addressing the request. Plaintiffs asked clarification as to what XYZ was seeking. XYZ responded with their letter of January 12, 2009.

Statement of Damages

XYZ sent a statement of damages on November 3, 2008, after plaintiffs had mailed a letter in October 2008 indicating they were willing to settle the case for the cost to repair per the estimate of Clive Lee, water and fire restoration expert, that was submitted to the federal court.

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 insurance bad faith lawsuit and its proceedings.)

XYZ states in their motion there is no issue as to Mrs. Hall’s response. However, Mrs. Hall responded to the same questions as did Mr. Hall because they are joint plaintiffs and suffer the same loss and seek the same recovery. If XYZ had no issue as to Mrs. Hall’s response, then there is no as to Mr. Halls initial responses and supplemental responses. Ms. Hall provided information to the same form interrogatories that Mr. Hall responded.

Request for Production of Documents

In XYZ’s motion on page 2, line 11, they state plaintiffs did not respond at all (as to production of documents, then on line 12-14, state plaintiffs produced some documents (despite not responding to the document requests themselves), their production is obviously deficient. Again, XYZ states on page 3, line 24 to page 4, line 2, there was document production. As stated above plaintiffs faxed their pleaded responses to the production of documents on 12/08/08.

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 insurance bad faith lawsuit and its proceedings.)

Plaintiffs William and Susan Hall’s Memorandum of Points in Authority in Opposition to XYZ’s Motion to Compel Discovery and Sanctions
INTRODUCTION

XYZ brings a motion to compel further responses and production of documents, and a statement of damages. Plaintiffs have tried diligently to respond to all of XYZ’s demands but they are insistent that plaintiffs responses are incomplete. Plaintiffs have responded to the best of their knowledge, yet XYZ refuses to accept the responses. They seem to believe that plaintiffs should respond according to their frame of thoughts or better put, in the way they believe will best serve their interest.

Plaintiffs believe this motion to compel was brought to harass, annoy, and burden plaintiffs and their counsel. As plaintiffs worked steadily to provide the information to XYZ, it appears XYZ was not willing to work toward a resolution, but rather bring the matter before the court for sanction purposes.

STATEMENT OF FACTS

On November 3, 2008, the Halls received discovery from XYZ consisting of two sets of Form Interrogatories to Plaintiffs William Hall and Susan Hall respectively; Request for Production of Documents, and Special Interrogatories exceeding 35 in number. William Hall’s responses to the form and special interrogatories, and responses to the production of documents were faxed to defendants on December 8, 2008.

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

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

In Wheeler, supra, the patient, Mr. Wheeler, arrived at the hospital for cardiac tests (in non-emergency circumstances), and he did not read the Consent to Admission form before signing it The court emphasized that no one at the hospital called his attention to the Arbitration Option paragraph, much less explain its implication or the options available, now was he given a copy of the document. Significantly, because Mr. Wheeler suffered injuries in the hospital that left him unable to communicate, the court relied on the declaration of his wife, who had been present with him during the admission process. It stated, “Whether a person signed a document without reading it is an inference which may rationally be drawn by a percipient witness to the circumstances surrounding the event.” Id at 362. The court found that “…the uncontradicted evidence shows that Mr. Wheeler was unaware of the existence of the “Arbitration Option” provision.” Id at 361. Moreover, under Wheeler, the general presumption that “… ordinarily one who signs a contract is bound by its terms even though he signs it without reading it was held to be … inapplicable to adhesion-type contracts.” Id at 368.

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

The principles embodied in Wheeler are paralleled in the present case, especially given the evidence establishing that Mr. Hall arrived at the hospital ER by ambulance, reporting pain at a level of 9-10/10. Given this evidence, Mr. Hall cannot be held responsible to have read and understood the independent contractor clause buried within the Form, nor can this provision of this standard adhesion contract be enforced, as ample authority has firmly established a patient who is in the throes of a medical emergency-or even a non-emergency hospital patient-is not held to the same standards as a healthy individual contemplating a business transaction in a normal situation.

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

As the Wheeler court made clear, even a patient who arrives at a hospital at his doctor’s direction, under non-emergency circumstances will not be held to terms in a standardized, adhesive admission form that go beyond what the patient could reasonably expect to find in such a document absent a clear showing that he or she was made fully aware of such terms.

The Court stated: The application of adhesion contract principles to an arbitration clause in a contract for medical services presents distinct problems concerning the patient’s awareness of the contractual provision and his understanding assent thereto. As Professor Henderson points out in his comprehensive article entitled Contractual Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice, supra, 58 Va.L.Rev. 947, at page 987: Given the distinctive nature of the medical services transaction, the use of a standardized form runs the risk of failing to satisfy the policy of awareness.

The arbitration provision, viewed from the perspective of the patient, is indeed subsidiary to the primary exchange of medical services for an undertaking of payment after consenting to medical procedures, the contract purchaser of medical services may fairly assume that no obligations other than that of payment are imposed. Absent some guidance by the medical entity, the patient has little reason to know anything at all about arbitration, let alone that the tendered document requires it. Nor should the medical entity ordinarily expect a patient to read or even to understand a broad arbitration clause. Id at 357-358.

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

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It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

Moreover, the Wheeler court stressed that even a favored arbitration provision in an adhesion contract cannot be enforced unless it was knowingly and voluntarily entered into by both parties. It emphasized, “… notwithstanding the cogency of the policy favoring arbitration and despite frequent judicial utterances that because of that policy every intendment must be indulged in favor of finding an agreement to arbitrate, the policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate.” Wheeler, supra, 63 Cal. App. 3d at 356.

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

Key to this analysis is the requirement that in order to be enforceable, terms in an adhesion contract must be of a type that the parties to such an agreement would reasonably expect to find in the contract. As the Bruni court explained, “ … a provision contained in [an adhesion] contract cannot be enforced if it does not fall within the reasonable expectations of the weaker or adhering party.” Bruni, supra at 1289. The Wheeler court pointed out that reasonable expectations of the hospital patient presented with an admission form are significantly different that those of one in a business or employment setting, stating, “… insofar as awareness is concerned, the atmosphere of the employer’s office … is a far cry from that of a hospital admission room.” Id at 363. It further explained, “A patient like Mr. Wheeler realistically has no choice but to seek admission to the hospital to which he has been directed by his physician and to sign the printed forms necessary to gain admission. To posit otherwise would require us to ignore the stress, anxiety, and urgency which ordinarily beset a patient seeking hospital admission.” Id at 366.

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