How Lawsuits Can Help Solve Problems
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.
Some Thoughts on “No Recovery — No Fee”
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 lagombeaver1@hotmail.com.
Unreasonable failure to pay a judgment creditor
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]
Completed and Accepted Doctrine
“[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
Los Encinos SpokesDuck wants you – to vote!
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.com
Distracted driving can hurt your company bottom line
The National Safety Council today released the white paper “Employer Liability and the Case for Comprehensive Cell Phone Policies,” which details the potential liability employers face when employees are involved in crashes where cell phone use is a factor.
The research includes examples of employers who have been held liable with awards reaching into the tens of millions of dollars, including cases involving employee-owned cell phones and cars and in situations where employees were driving during non-working hours or engaged in personal phone calls.
“Business leaders owe it to their employees to put safety first – especially when employees are on the roads,” said Janet Froetscher, The National Highway Traffic Safety Administration and the Federal Motor Carrier Safety Administration estimate on-the-job crashes cost employers more than $24,500 per property damage crash. The cost rises to $150,000 per injury and to as much as $3.6 million per fatality.
NSC president and CEO. “Employers should know a policy that prohibits handheld and hands-free cell phone use by all employees while driving is not only a best safety practice but also contributes to the bottom line.”
Even though April has been Distracted Drivers Awareness Month, distracted driving is still an everyday occurrence. The news has reported that thousands of tickets have been issued to distracted drivers this month. You not only need to be aware of your driving, you need to be aware of the distracted drivers on the road with you.
Although distracted driving accidents may cost millions of dollars, the ultimate high price is the loss of loved ones. Drive alert, drive safe.
32 seconds.
Because texting is the #1 distracted driving behavior, a great deal of focus is being placed on it during Distracted Driver Awareness Month.
However, texting, as deadly as it can be, is not the only driving distraction.
last night I saw a car commercial on TV featuring two different drivers. In this 32 second commercial, both drivers were shown
1.- tapping their fingers on the steering wheel to the music,
2.- adjusting their tie,
3.- drinking coffee, and
4.- checking their hair in the rear view mirror.
Each of these behaviors constitutes distracted driving.
According to the DMV, there are three types of distractions. They are anything that takes your:
- eyes off the road (visual).
- mind off the road (cognitive).
- hands off the steering wheel (manual).
1.- Thinking about the song, keeping time to the music by tapping on your steering wheel or seat dancing is taking your mind off the road.
2. – Adjusting your clothing is taking both your mind and hand off the road.
3.- A driver drinking coffee or soft drinks is taking their eyes off the road because they are momentarily blinded by the lid and cup; and it could become eyes, mind and hands if they spill their beverage in their lap.
4. -Using the rear view mirror while driving not only takes your eyes off of the road in front of you it, blocks your vision from what might be approaching from behind you.
In this age of multi-tasking, it is common to do more than one task at the same time and too many people think that includes driving their car.
A split second can change your life. Car accident victims suffer life changing serious injuries, including death.
Don’t be like the drivers in the commercial. Choose to drive safe and stay alive.
***
One text could be your last. April is Distracted Driving Awareness Month
National Safety Council estimates that at least 1.6 million crashes each year involve drivers using cell phones and texting.
Distracted driving is the number one killer of American teens. Alcohol-related accidents among teens have dropped, but teenage traffic fatalities have remained unchanged because distracted driving is on the rise. ( Children’s Hospital of Philadelphia/State Farm Insurance Study and NHTSA Study)
In California, all drivers are banned from texting while driving, however, accident research still indicates that drivers are ignoring this law assuming they can “multi-task.” Sending or receiving a text takes a driver’s eyes from the road for an average of 4.6 seconds, the equivalent-at 55 mph-of driving the length of an entire football field, blind. (VTTI).
Injuries in auto accidents can vary from small scratches, to life long life-changing injuries (i.e.: head injuries, spinal cord injuries, loss of libs, etc.) to loss of your life or the life of someone you love. Last month I posted how it how it cost one young lady her life. This teen proved in the last minutes of her life she knew right from wrong — but still committed a fatal mistake. She wrote in her final missive, “I can’t discuss this now. Driving and facebooking is not safe! Haha.”
A text message can wait, your life cannot.
Be aware. Drive safe.
Salute our men and women in uniform during Brain Injury Awareness month.
Did you know that brain injury from improvised explosive devices are a leading battlefield injury?
The military is examining several methods to more accurately diagnose concussions. Mild traumatic brain injury accounts for 80 percent of the TBI diagnosed in the military.
In addition to searching for diagnostic tests, researchers also are looking for solutions to treat the symptoms of mild TBI, including memory loss, confusion and irritability. Among the treatments being studied by DoD are omega-3 fatty acids, hyperbaric oxygen therapy, growth hormones and progesterone. You can read more about this research program in the US Army Times.
We owe our fighting folk our freedom, don’t forget them!
March is Brain Injury Awareness Month
Each year, traumatic brain injuries contribute to a substantial number of deaths and cases of permanent disability. Recent data from the Centers for Disease Control and Prevention shows that, on average, approximately 1.7 million people sustain a traumatic brain injury annually.
Recent headlines talk about certain sports figures with concussions and how it might affect their ability to be in the game. Brain injuries, however, can happen to anyone. The Mayo Clinic recently reported that brain injuries far more common than previously thought. A new study shows that adolescents are more sensitive to the effects of a sport-related concussion than adults or children. Sanjay Gupta, MD, reported recently on CNN, ”Kids getting hit in the head too many times with a soccer ball can be just as dangerous as being hit in the head often while playing football.”
More information available at Frequently Asked Questions on BillDanielsLaw.com
