Archives for posts with tag: Carmichael

       A series of lawsuits against Toyota are scheduled to begin in California toward the end of this year and into 2013. Toyota will be defending claims concerning a sudden and unintended acceleration issue in many of its Camry models. These acceleration problems are said to have caused car accidents resulting in serious injuries and even wrongful death.  As a matter of fact, Toyota launched a recall of nearly 8 million vehicles across the U.S., starting in 2009.

       The recall prompted hundreds of personal injury and wrongful death claims linked to this sudden and unintended acceleration.  In one specific case, it is claimed that a woman’s Camry suddenly accelerated and caused the vehicle to leave the road and strike a telephone pole, resulting in the woman’s death.  Toyota has also been accused of causing danger to Camry drivers by intentionally selling vehicles with this alleged malfunction, although it is yet to be determined whether this was a true manufacturing error or if Toyota was aware of a problem at the time these vehicles were distributed and sold.

       Sometimes a car accident is simply an accident; however, some form of negligence is often involved in many collisions.  Such may be a possibility in the injury and wrongful death claims against Toyota for the acceleration issues.

       To think that a fatal accident took the lives of innocent people because of a possible manufacturing error is a sad and scary thought.  Those California residents owning or driving a Toyota Camry, or who know of someone using such a vehicle, would do well to learn the facts and take appropriate action in circumstances where the car may be suspected of having the acceleration problem.  In such instances, the problem must be addressed immediately and those affected may benefit from understanding the relevant law and procedures as it applies to their specific situation.

       If you have been involved in an accident with a Toyota Camry or any other type of car you should seek the guidance of a qualified California Personal Injury Attorney.  At Guenard and Bozarth all we do is represent victims of accidents.  Please call us at 888-809-1075 or visit us on the web at www.gblegal.com and an attorney will talk with you and explain your rights.

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Researchers from State Farm and Children’s Hospital in Philadelphia studied injury data from over 50,000 teenage drivers and their passengers who had been in car accidents and discovered that almost 30% of them had received some sort of head injury as a result of the accident. The analysis recommends an emphasis on graduated driving laws across more states to allow young drivers to gain more driving experience while being safe and cautious.

Examples of graduated driving laws for minors include restricting cell phone usage (although California has banned the use of cell phones for texting and/or calling regardless of age), prohibiting or restricting nighttime driving, limiting the number of passengers present in the car with the young driver, “novice driver” decals (currently only one state that requires drivers under the age of 21 to put a decal on their vehicles identifying them as “newer” drivers), and requiring the driver to graduate from various driving stages (learner’s permit, a restricted stage, and a full privilege stage).

In addition to strengthening graduated driving laws, researchers behind the study are strongly encouraging states to focus on seat belt laws to reduce the number of injuries and deaths committed by young drivers each year. Delaware’s graduated driving law has a seatbelt provision that requires teenage drivers as well as their passengers under the age of 18 to wear their seat belts or risk having their license suspended for two months.

The Center for Disease Control and Prevention said that auto crashes are the leading cause of death for teenagers, so driving safety is a huge area of concern for minors. The number of 16- and 17-year-old driver deaths in the United States increased 11% between the first six months of 2010 and the first six months of 2011.

Although teen drivers won’t likely be thrilled with stricter graduated driving laws, the safety implications behind the laws might persuade some states to crack down and take a more aggressive stance with younger drivers. Not only will this keep teen drivers safer, it’ll make the roads safer for other motorists as well.

If you have a teen driver this is the best time to be aware of these statistics.  If your teen driver has been in any accident, no matter how minor, this is the perfect time to contact Guenard and Bozarth at 888-809-1075 or at www.gblegal.com and have them evaluated by a competent health care provider.  The pain from a head injury may subside with time and the damage will only get worse.

 

Insurance bad faith refers to a claim that an insured person has against an insurance company for bad acts.   Bad faith in an insurance claim implies that an insurer has failed to pay a claim for no good reason. Other bad faith insurance claims result because the insurers have taken a position that goes against the insurance coverage policy that is frequently their own.  In issues of bad faith insurance,  laws have been created to uphold a contract that has been breached.

Responsibility, Duty, Liability

  • Your insurance company has a duty to treat you fairly, and to protect you from third-party claims, because you bought the liability insurance, whether on your home or on your automobile.
  • The insurance company has a duty to protect your interest when settling your claim.
  • The insurance company must negotiate the claim rather than just protecting the company’s own interest, or they can be liable to you for not protecting your interests.

If you bought a policy that says it is a 25/50 policy, and you injured someone and the damages exceed $25,000.00, the insurance company does not have to pay more than the $25,000.00 in coverage.

If the other party is willing to settle for the $25,000.00 and liability is reasonably clear, and the damages equal or exceed $25,000.00, the insurance company has to pay the $25,000.00.

Insurance Bad Faith Law Suit:

  • If,  as in the referenced instance, the insurance company does not pay the $25,000.00, then you might be able to sue your insurance company for what is called First-Party Bad Faith in an insurance bad faith lawsuit.
  •  Your insurance company must treat you fairly, and must not expose you to a judgment far in excess of the amount of the coverage when the insurance company could have settled the case within the coverage limits.
  • Under these circumstances, you may be able to sue with an insurance bad faith lawsuit for not only the amount you are personally responsible for to the third-party, but you could also sue for your emotional distress and general damages, and for punitive damages to punish the insurance company for not treating you fairly.

For further information see the related sections on our web site www.gblegal.com:

We are Guenard and Bozarth and we are an agressive personal injury litigation firm.  We can be reached at 888-809-1075 or via e-mail at ross@gblegal.com.

Clients often ask if it’s possible to recover attorney fees when they sue their own insurance company in California.  The short answer is yes.  After we have that out of the way I let them know it is possible to recover attorney fees, if bad faith is at issue and we can produce proof.

In California, the most important case that allows for attorney fees and litigation costs is Brandt v. Superior Court (Standard Ins. Co.), (1985) 37 Cal//.3d 813, 817.  In the Brandt case, the California Supreme Court established an exception to the general contract rule that each party bears its own attorney fees. Brandt allows recovery of attorney fees incurred in obtaining contract benefits when the insurer’s withholding of those benefits was in bad faith.  In other words, the damaged party does not have to come out of pocket after proving damages.

To recover attorney fees, a policyholder must prove:

  1. Benefits were withheld in bad faith; and
  2. The fees incurred by the policyholder to recover those benefits. The fees incurred to prove the bad faith are NOT recoverable; only fees incurred to prove coverage are recoverable. (Cassim v. Allstate Ins. Co., (2004) 33 Cal.4th 780, 811)

In White v. Western Title Ins. Co., (1985)// 40 Cal.3d 870, the Supreme Court extended its analysis in Brandt to recovery of litigation costs, including expert fees, incurred in proving coverage. Since coverage experts can be very expensive, this additional economic damage should not be overlooked. Attorney fee and litigation costs are normally a jury issue, but, as the Brandt court recommended, they are usually best determined by the court after the verdict.

If you have reason to believe that you have been the victim of Insurance Company Bad Faith don’t hesitate to call the Law Office of Guenard & Bozarth at 888-809-1075 or visit us online at www.gblegal.com for a free case analysis.

The question of who should have the final say in approving medical care – the physician or the insurance company – was key in a case involving a former U.S. Marine and paraplegic.

Thomas Nickerson broke his leg in two places and was admitted to the Veterans Administration Hospital in Long Beach, remaining there for 109 days on doctor’s orders.

After his release, he submitted a claim to his insurance company, Stonebridge Life Insurance, seeking coverage for his hospital stay under his accident indemnity policy, which paid $350 a day for every day confined to a hospital.  But Stonebridge paid for only 19 days, claiming that the remaining days weren’t medically necessary. Nickerson filed suit. Nickerson v. Stonebridge Life Insurance Co., BC 405280, (Los Angeles Super. Ct., filed June 13, 2011).

“We felt that the jury would be quite upset with the widespread practice of an insurance company that wouldn’t pay for a medically necessary treatment,” said Nickerson’s lead attorney. The whole area of insurance companies overruling treating doctors on what is medically necessary is a very huge issue in the medical community.   Mr. Nickerson’s attorney wanted this to be an important test case.

Nickerson did win, with a jury awarding him $31,000 in insurance policy benefits, $35,500 in emotional distress damages, and a whopping $19 million in punitive damages.

This was a case where being able to get punitive damages to stop the bad claim practices of the insurance company mattered and was reasonable.  Obtaining punitive damages is always a challenge it becomes easier when conduct like this can be demonstrated.

As it happened, keeping the punitive damages provided to be an even bigger challenge when the judge whittled that grand sum down to $350,000.

At issue was the standard establishing a ratio of punitive to compensatory damages of 10 to one for isolated incidents of wrongful conduct.  Nickerson’s attorney has appealed the reduction.

While the trial judge may have believed her hands were tied in this regard, Nickerson’s attorney was quoted, “We believe an appeals court will agree with us. It should be a different ratio when you have widespread institutional misconduct, coupled with low compensatory damages.”

If you believe that you have been a victim of Bad Faith on the part of your insurance company feel free to call our office for a free consultation with one of our attorneys.  We can be reached at 916-714-7672 or visit our web site at www.gblegal.com

When an insurance company denies a claim, that denial decision might not only be incorrect under the terms of the insurance policy, but also might be in “bad faith.”  As a matter of law, every insurance contract contains a covenant of good faith and fair dealing.  If this covenant is violated, the insurance company is said to have acted in “bad faith.”  A tortious breach of this implied covenant involves something beyond breach of the specific contractual duties or mistaken judgment.  To establish a bad faith claim in first party cases (such as those involving life insurance, health insurance, disability insurance, property and casualty insurance, auto liability insurance, and homeowner’s insurance), it must be shown that an insurer’s delay or withholding of benefits under the policy was unreasonable or without proper cause.  

In general, policies involving health insurance, life insurance, or disability insurance that are paid for and provided by an employer are governed by the Employee Retirement Income Security Act of 1974 (ERISA), which precludes recovery for insurance bad faith. 

When an insurance company acts in bad faith (that is, when an insurance company violates the covenant of good faith and fair dealing), the policyholder or insured can sue the insurance company for both breach of contract and the tort claim of bad faith.  In addition to contract damages, damages available under a tort claim for bad faith can include foreseeable financial losses, emotional distress, and attorney’s fees incurred by the insured to force the insurance company to pay the policy benefits (Brandt fees). If the insurance company acted with malice, oppression or fraud, the insured may also recover punitive damages.  Punitive damages are meant to punish the insurer, and are not available in a breach of contract lawsuit. 

When determining whether or not an insurer acted in bad faith, a court will use the “reasonable” standard.  This means the court will evaluate the actions of the insurers and determine if they were reasonable under the circumstances.  If the insurer did not act reasonably, then the insurer has acted in bad faith in dealing with the insured.    

Some examples of bad faith are:

  • interpreting the language of the policy in an unreasonable manner;
  • unreasonably failing to reimburse the insured for the entire amount of the loss;
  • unreasonably failing to settle the lawsuit;
  • unreasonable refusal to defend a lawsuit;
  • unreasonable delay in paying benefits; and
  • unreasonable delay in investigating the claim or improper valuation of the claim.

If an insurer does not act reasonably in complying with the terms of the insurance policy, then they have breached the covenant of good faith and fair dealing (a.k.a. bad faith) and will be held accountable by the court.  For additional information on this and other insurance matters you can visit the FAQ section of our website:  www.gblegal.com or call us and talk with an attorney to discuss your personal situation at 916-714-7672.

It is all fun and margaritas when you first book a cruise.  What does that ticket that can actually be a dozen pages long provide you and what does it take away from you?  More than you may realize.

            It is not until something happens that you realize how restricitve that ticket can be.  There are actually seven areas that you sign away just because you buy a cruise ticket.

  • ‘The right to privacy.  You give the cruise line the right at all times, with or without notice to search your property.  They can also use pictures and videos of you in promotional material at will and without compensation.
  • The right to show your own pictures.  You have actually agreed to not utilize any photographs for non-private use without the permission of the cruise line.  So much for that travel blog you were going to do.
  • The right to recover if your personal property is stolen.  The ticket limits loss to $50 per person and $100 per stateroom.
  • The right to actually count on that vacation.  They can cancel at any time for any reason or nor reason without any penalty in most cases.
  • The right to sue where you want.  Cruise ships are registered in Panama or Liberia and the cruise ship decides where any litigation will occur.
  • The right to ask for punitive damages.  Unless you are able to prove extreme recklessness the chance for punitive damages are minimal at the very best.
  • The right to be legitimately upset.  Unless you personally were the one harmed the contract denies your ability to sue for emotional distress.  You could take a cruise to calm down but you may a lawyer with you on that one as well.

            Nothing here is meant to dissuade you from taking a cruise or any other vacation.  Rather, you simply need to be aware of the realities of contracts and what you are agreeing to in advance.  If you have questions in this area please feel free to call the Law Office of Guenard and Bozarth.  We can be reached at 888-809-1075 or at http://www.gblegal.com