One of the great things about living in America, is we have something called “the rule of law.”
So, just what is that?
Well, in the U.S., instead of having a king sitting on a throne, we believe “the law is king.” That means that we believe we are ruled by laws, not other men and women. “The rule of law.” It’s precious stuff, friends.
So, what does any of that have to do with lawsuits.
Well, it turns out, that people just living their daily lives, are going to have problems that come up in dealing with other people.
There’s two ways to solve problems having to do with money, property or your person, what we call “civil” problems.
One is something called “self help.” In other words, if your neighbor built a high fence and you don’t like it, self help is taking a saw and cutting it down without permission.
Only we learned a long time ago that self help causes all kinds of problems. If you don’t believe me, try cutting down your neighbor’s fence and report back to me what happens. No, just kidding. Don’t do that. Self-help isn’t really all that helpful.
The other way to solve civil problems is something called a civil justice system.
When someone wants to solve a problem using the civil justice system, they file papers asking for some kind of relief. That’s basically what a lawsuit is. Pretty simple, huh?
Now, there is plenty of debate these days about whether there are too many lawsuits, or too few, and all that kind of stuff that I know you hear about all the time.
But, the truth is, when you have a civil problem, it become real important to you that someone can help you solve that problem in the fairest, least expensive and quickest way.
Now, I’m not here to give you legal advice and there are differences in how courts work in each state and in the federal system. Still, spend a little time with me and I think I can tell you some things that you didn’t know before and, hopefully, will help you with whatever problem you need to fix.Filed Under Civil Justice Attorneys, Civil Procedure, Personal Injury, Uncategorized, trial lawyer
I was in Fresno County on a case and picked up The Selma Enterprise to read during breakfast. Fine little paper!
Anyhow, a column titled “You and the Law” caught my eye and I thought, “Wow, this is good stuff!”
The columnist is Bakersfield attorney Dennis Beaver (661/323-7911 or Lagombeaver1@gmail.com) who it turns out writes a regular column.
Mr. Beaver graciously gave me permission to reprint his column, so here you go:
You and the Law
But the Phone Book Ad Said, ‘No Recovery Fee’!
By David Beaver, Esq.
It is impossible to turn on TV, open the phone book to the attorneys section or surf the Web and not find ads for personal injury lawyers, which generally all sound pretty much the same and stress, “No recovery, no fee.”
Sounds like a great way of hiring a lawyer, doesn’t it? The ads want you to think, “The lawyer who takes my case puts in all the time and gets paid only if we get paid. For me, it’s a no-brainer, a free ride, I can’t lose. Sure, I’ll sign!”
So you phone the “800” number flashed on your screen and wind up hiring the “No recovery, no fee” lawyer, who then loses your case after years of litigation. Are you on the hook for anything?
Well, you could easily get a letter from the attorney which reads, “I am sorry that we lost your case. Now we need to talk about how you are going to pay us for …”
“Pay us? What part of the no-fee stuff means that I have to pay anything at all?” you might be thinking. And, in fact, one of the most frequent complaints to state bar associations from unhappy clients deals precisely with the meaning of the words “no fee” and the resulting confusion. So, what does “no fee” really mean?
No fee does not mean free
Ron Jones specializes in business and real estate law in Hanford and sees the public confusion as a result of two factors.
“When most people think of hiring a lawyer — let’s say, in a divorce or contract dispute — they usually are concerned with the amount that lawyer will bill for time spent on the case. If it is a personal injury matter, fees are often on a percentage basis — for example, one-fourth to sometimes half of the amounts recovered, plus costs.
“There is generally more to most cases than just the lawyer’s time,” Jones points out. “The written retainer agreement lawyer and client sign must set out clearly what out-of-pocket expenses incurred the client will be expected to pay. There is a difference between attorney fees — what a lawyer charges for time, document preparation and advice — and costs, which are other expenses incurred for the client’s benefit.”
Some example of costs
Costs can include any and all of the following, and again, we are not talking attorney time, rather, the out-of-pocket expenses which clients can be responsible for:
• Postage and shipping costs
• Photocopy and binding expense
• Travel expense, including mileage, train and airplane
• Lodging and meal expense
• Deposition and court reporter charges
• Video conferencing/long-distance telephone charges
• Expert witness fees, such as forensic accountants in divorce cases
• Private investigators
• Computerized research if the law firm is charged by the provider
• Possibly secretarial and paralegal time
• Court filing fees.
“Who pays what, under what circumstances and when, should be clearly set out in writing,” Jones observes. He describes three basic types of retainer agreements:
1) The client pays attorney fees and all related costs and expenses, such as hiring a private investigator, an accident reconstruction expert, accountant, etc.
2) The law firm covers everything and the client reimburses the law firm out of the recovery, only if there is one.
3) The client pays no attorney fees unless the case is successful, but does pay the out-of-pocket costs.
“Fee agreements where the lawyer covers all expenses related to the case are typical in personal injury cases where it is likely there is going to be a recovery. You will not normally find this in cases which have a limited chance of success or which have a low dollar value,” he notes.
“It is important for the public to understand that law is a business with a bottom line. Reasonable lawyers try to not accept cases which appear as doubtful or which have a minimal chance for success. With most personal injury cases — where the lawyer is paid a contingent fee — an experienced attorney who is good at selecting cases will only take those which will likely provide a desirable result.”
How not to be surprised
“Always read the retainer (fee agreement) very carefully,” Jones stresses. “If you do not understand the fee agreement, but are inclined to hire the lawyer, it is a good idea to take that retainer to another attorney and pay for a consultation in which it can be clearly explained to you. Also, it’s a good idea to set out in writing, that before your lawyer incurs any costs which might exceed, say, $1,000, that your approval is required.”
“Finally,” the Hanford lawyer underscores, “when you do not have a working history with that attorney and fees are expected to exceed $1,000, California law requires a written, signed agreement.”
Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to him at 661-323-7911 or emailed to him at email@example.com.
The critical question thus left pregnant but unresolved by Murphy, supra, 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584, is whether an unreasonable, bad faith refusal to pay a judgment creditor claimant the entire amount of the judgment, after it becomes final, implicates some recognizable duty of good faith by the insurer under its policy, which was intended to benefit such a third party beneficiary. We believe so.
Although the policy in this case does not appear in the record, it may safely be inferred that it included “the usual promise to pay ‘on behalf of the insured … all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage….’ ” (Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 511, 129 Cal.Rptr. 286.) There can be no doubt that, pursuant to this express policy **266 undertaking, the implied covenant of good faith and fair dealing imposes a duty not to withhold in bad faith payment of damages which the insured has become obligated by judgment to pay. Certainly with respect to the insured, “The duty to so act is immanent in the contract whether the company is attending to the claims of third persons against the insured or the claims of the insured itself. Accordingly, when the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort.” (Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at p. 575, 108 Cal.Rptr. 480, 510 P.2d 1032.)
Moreover, unlike the duty to settle that was at issue in Murphy, supra, 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584, the duty not to withhold in bad faith payment of adjudicated claims runs not only in favor of the insured but also in favor of a judgment creditor such as plaintiff here. Section 11580 operates as part of a larger body of California law that seeks to assure that accident victims will be securely compensated through automobile policies. (See Barrera, supra, 71 Cal.2d at p. 672, 79 Cal.Rptr. 106, 456 P.2d 674.) “The public policy expressed in the Financial Responsibility and related laws requires that we construe statutes applicable to automobile liability insurance policies, as well as contractual provisions in those policies, in light of its purpose to protect those who may be injured by the use of automobiles.” (Ibid.) Accordingly, the insurer’s policy duty to pay adjudicated liabilities is in place as much to protect adjudicated injured parties from uncompensated loss as to protect the insured from personal financial disaster.
To this end, once having secured a final judgment for damages, the plaintiff becomes a third party beneficiary of the policy, entitled to recover on the judgment on the policy. At that point the insurer’s duty to pay runs contractually to the plaintiff as well as the insured. And the plaintiff having also become a beneficiary of the covenant of good faith (Murphy, supra, 17 Cal.3d at pp. 943–944, 132 Cal.Rptr. 424, 553 P.2d 584), the duty to exercise good faith in not withholding adjudicated damages necessarily is owing to the plaintiff also.
Farmers argues that this conclusion ignores and conflicts with section 11580, in that the statute in terms provides the judgment creditor only a right of action against the insurer, not a right to payment without suit. In support, Farmers cites Billington v. Interinsurance Exchange (1969) 71 Cal.2d 728, 79 Cal.Rptr. 326, 456 P.2d 982 (Billington), in which the Supreme Court noted that “under our existing direct action statute [§ 11580] an injured party is compelled to bring two lawsuits if he seeks to collect a judgment from the insurer which issued a liability policy.” (Id. at pp. 744–745, 79 Cal.Rptr. 326, 456 P.2d 982.)
The quoted, descriptive statement was made in response to an argument that allowing insurers to assert the defense of the insured’s noncooperation would unfairly require a creditor to bring two suits. Farmers’s broader argument that the rights of the class enabled by section 11580 extend no further than its bare terms is fallacious, for several reasons.
13 First, section 11580 cannot be read to create merely a judicial remedy, without an underlying right; and it is clear from the history of the *1859 statute that its purpose and effect was to create a right in the insurance contract. (See Malmgren v. Southwestern A. Ins. Co. (1927) 201 Cal. 29, 33, 255 P. 512 [Malmgren].) Indeed, as a matter of public policy, duties beyond those specifically set forth in section 11580 have been imposed on insurers for the benefit of statutory creditors. (Barrera, supra, 71 Cal.2d at pp. 668–678, 79 Cal.Rptr. 106, 456 P.2d 674.)
Second, judgment creditors granted a right of action by the statute have been repeatedly and definitively held to be third party beneficiaries of the policy. (Murphy, supra, 17 Cal.3d at p. 943, 132 Cal.Rptr. 424, 553 P.2d 584.) And, as explained in Murphy, these beneficiaries are entitled to performance, without suit, of implied covenants and duties imposed to secure their benefits, just as they are not entitled to invoke duties unnecessary, or in addition, to their receiving “all intended benefit.” (Id. at p. 944, 132 Cal.Rptr. 424, 553 P.2d 584.)
Finally, contrary to Farmers’s insinuation, a right of action for breach of the implied covenant of good faith need not be sought or found in the statute, because the actionable duty has always been implied by law from and into the contract itself. Although particular legislation might possibly supersede or “repeal” the implied covenant, it is nowise the necessary source of it. Presently, section 11580 has been authoritatively construed as recognizing, not excluding, the covenant of good faith as part of the parties’ relationship. (Murphy, supra, 17 Cal.3d at p. 943, 132 Cal.Rptr. 424, 553 P.2d 584; see fn. 7, ante.)
Hand v. Farmers Ins. Exchange (1994) 23 Cal.App.4th 1847, 1857-59 [29 Cal.Rptr.2d 258, 265-67]
“[W]hen a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. [Citation.] The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner’s acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. [Citation.]” (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 712 [Jones ], disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7; Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466–1471 [Sanchez ].) Stated another way, “when the owner has accepted a structure from the contractor, the owner’s failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable.” (Sanchez, supra, 47 Cal.App.4th at p. 1467.) The doctrine applies to patent defects, but not latent defects. “If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.” (Sanchez, supra, 47 Cal.App.4th at p. 1467.)
Neiman v. Leo A. Daly Co. (Cal. Ct. App., Oct. 30, 2012, B234537) 2012 WL 5333416
Letter to the editor of Wall Street Journal:
Regarding your editorial “The Tort Bar Burns On” (July 23), I am a trial lawyer in Encino, California. I offer the following observation:
Your writer misses the point in discussing gasoline can litigation. A serious gasoline burn injury can easily result in multiple millions of dollars in medical expenses. Five to ten million in total costs are not unusual for younger victims with normal lifespans and catastrophic injuries.
So it comes down to, who pays for this, the manufacturer who profits from a product causing injury — in your article Blitz USA —or the public through increased taxes?
An internet search shows Blitz USA reports annual sales in the 20m-50m range. Using the upper limit, and assuming profit margins at a generous twenty percent, then Blitz’ annual profit would equal the real damages in about one serious burn case. Few can pay such costs on their own, so the taxpayers are generally on the hook.
Seen in this light, your article argues for higher taxes to subsidize private industry. Personally, I believe that strategy is a loser.
Los Encinos State Historic Park in the San Fernando Valley is on a closure list due to budget cuts. The Encino Lawyers Association is stepping into the breach to help keep the park open for local children.
This park is important, not only because of its historical value to the area, but because it’s a safe place for children to play and families to gather to celebrate special events.
To raise community awareness, the Encino Lawyers asked local children to draw and name a “spokesduck,” since one of the park’s key features is a guitar-shaped duck pond. A young local artist then took a cue from the children’s art and created an official spokesduck figure, named “Ranger Dave” Duck.
Now, Ranger Dave is slated as an official park symbol as the Encino Lawyers organize a string of future events.
These are hard economic times. We didn’t think lawyers should be sitting on the sidelines just watching the community struggle. Our members are rolling up their sleeves and making things happen.
Future plans include organizing local artists to support the park, connecting with local businesses and community leaders and finding a role for youth rally around the effort. A major event is planned to run in conjunction with the annual “Taste of Encino” street fair on October 14. Some 25,000 people are expected at the street fair, which creates an opportunity to show off Los Encinos to a wider audience.
We want to be a creative spark. But it’s really up to the Encino community. If they want to save their duck pond, there’s no way the State can close it.
To learn more about the Encino Lawyers Association and upcoming Spokesduck events visit their website: www.Encinolawyers.orgFiled Under Community involvement, Completely Different, children
On Sunday, June 24th, the semi-finalists and their parents came to the park to receive their prizes.
All the drawings received during the contest were on display on the duck pond fence so everyone could see the creativity of the children in the community.
The children excitedly jumped at the opportunity to paint alongside internationally renowned artist Rassouli and the Fusionart painters.
The children were excited about their awards.
Filed Under Completely Different, children
The SpokesDuck awards day was fun for the children and the parents. Red, white & blue buttons advertised the slogan Flock Together.
We are getting emails and Facebook posts about how much fun people had at the SpokesDuck event that was held at the Los Encinos State Historic Park yesterday.
All the entered drawings were on display on the duck pond fence so everyone could see the creativity of the children in the community. While they were waiting for the announcements, the children excitedly jumped at the opportunity to paint alongside Rassouli and the Fusionart painters. Many of them stayed longer, obviously enjoying the painting experience.
The day was one of connecting with the children and their families. Each child received a goody bag with rubber duckies, I love Ducks stickers, crayons, coloring books and more. These goodies were donated by the sponsors, and our elected friends.
It seemed as though many of these families were being reintroduced to the park in a new light, as a place to gather on a beautiful summer day to share fun times.
The Living History troupe was also in the park adding to the full flavor of the day. These folks come every month to help people see what it might be like at the time these historic buildings were actually lived in.
Tours were offered through the Adobes and people comments indicated they had previously been unaware of the depth of history of this beautiful park. The more people learn and are reminded of this park, the importance spreads to a larger group who want to save this park from closure.
Overall, it was a fun day for all.Filed Under Completely Different, children
Children in the Encino and neighboring communities excitedly submitted their entries for the “Name & Draw our Los Encinos SpokesDuck” contest.
Many of the SpokesDuck drawings included apparel and captions. From a top hat “Lincoln Duck”, a scowling “Bring it on Duck”, ducks carrying signs that read “Don’t leave me to suffer, Save my home” and “Save the Los Encinos Park and save the ducks.” One child drew two images on his form, and explained, “One is the duck and the other is the ambulance they need when people feed bread to the ducks.”
From Ranger ducks and Patriotic ducks to Swaggaducks complete with gold chains, the children have drawn and voiced their concerns about their neighborhood park.
From the overwhelming response of creative and colorful entries, a panel of judges selected semi-finalists. It’s now time for the community to vote on their favorites so the winners can be determined.
The semifinalists can be viewed on the internet at:Facebook.com/SaveOurDuckPond. Likes and comments will be counted as votes to determine a winner in each age category. Be sure to vote in every category.
Sunday June 24th, from11am – 1pm the winners will be announced in the park and given their prizes.
For more information visit: www.SaveOurDuckPond.comFiled Under Uncategorized
Encino Residents, businesses and local elected officials are working together to prevent the closure of Los Encinos State Historic Park, lovingly known as the Duck Pond to Encino’s youngest residents. Heeding the cry of a small child, “Don’t let them take away our duck pond” Encino Lawyers Association, Bill Daniels Law Offices and Assemblymember Bob Blumenfield (D-San Fernando Valley) are co-sponsoring a contest for children called “Draw & Name the Los Encinos Park SpokesDuck”.
“This park is important, not only because of its historical value to the area, but because it’s a safe place for children to play and families to gather to celebrate special events”, says Association President, Bill Daniels. “My own children played in the park when they were little. We need to keep the park open for their children.”
With their parent’s permission, children can enter the contest every day by downloading an entry form from: wwwSaveOurDuckPond.com.
Entries need to be signed by the parent/guardian before depositing them in a special entry box in the visitor center at the Los Encinos State Historic Park, 16756 Moorpark St., Encino. From the entries, a panel of prominent judges will select the semi-finalists, after which the community will vote for their favorites. The contest runs through June 17th, and the winners will be announced with awards and prizes on June 24th on the grounds of Los Encinos State Historic Park.
“Los Encinos State Park is a gem in our community,” said Assemblymember Bob Blumenfield (D-San Fernando Valley). “By rallying together, we can keep this wonderful park open for families to enjoy. Hats off to Encino Lawyers for helping lead the charge to save this park.”
Researching the status and needs of the park, a Facebook post led an Association member to a task force meeting which had been organized by Senator Fran Pavley. After returning with the information she obtained about the parks ongoing requirements, the Association took action in calling friends, neighbors, business associates and local elected officials, and the idea of the “Name & Draw the Los Encinos SpokesDuck” contest was hatched.
This idea is similar to what the Forest Service created with Smokey the Bear; Smokey is about Forest Fires. SpokesDuck is about keeping our State Park open to the animals and kids.
“Los Encinos State Historic Park is an important and precious place in our community. The SpokesDuck drawing contest is an exciting grass roots movement involving children and families to help keep Los Encinos open.” said Senator Fran Pavley (D-Agoura Hills).” The ducks in the pond bring children joy and now children can make sure the ducks are saved and cared for. I’m thrilled to be a part of it and thank you to the Encino Lawyers Association for this fun contest. We are all working hard to help the Los Encinos Docents Association raise the necessary funds to keep our historic state park open.”
For more information visit: www.SaveOurDuckPond.comFiled Under Completely Different, children