San Diego Personal Injury Lawyer Blog

San Diego News 6 reported that 34-year-old Albert Holman of Mira Mesa was fatally injured while walking home from his birthday celebration on October 25, 2010. The car accident happened on the State Route 56, near Black Mountain Road exit, in Rancho Penasquitos. Holman was celebrating his 34th birthday at an Irish Pub in Carmel Mountain with friends, when he decided to walk home instead of driving because he had been drinking. His body was found on the side of the road early Tuesday morning. Police investigators impounded a Nissan Sentra from a home in Rancho Penasquitos. The vehicle had a shattered windshield, major front end damage, and a shoe believed to belong to the victim waged underneath it. The registered owner of the vehicle, 23-year-old Nicole Koval, who is a Cal State San Marcos nursing student turned herself in to authorities accompanied by her attorney. Friends of the victim say that Koval and Holman knew each other. They had met at the Carmel Mountain TGI Fridays where she worked as a server. According to CHP officer Art Athans, Koval's vehicle was believed to be the first of two vehicles that hit the victim, criminal charges have yet to be filed. CHP investigators continue to look into the matter.

Our deepest condolences go out to the family and friends of Mr. Holman.

Applicable California Law

Koval faces potential criminal charges for leaving the scene of an accident, as well as felony hit and run (see my prior Blog post on California Hit And Run law). In addition, she would be liable for the wrongful death of the victim (see my prior Blog post on California wrongful law). However, it is not clear whether the alleged second vehicle caused, or contributed to the victim's death, which will then affect Koval's liability proportionately. Furthermore, it is not clear what the victim was doing walking along the freeway, which may have contributed to his death and therefore, would reduce the value of any potential claims. Do the responsible parties have adequate insurance coverage? Does the victim have adequate uninsured/under insured coverage of his own if the responsible parties coverage is inadequate? These are just some of the important questions requiring further investigation.

A birthday celebration ends in a tragic death. Pedestrians are extremely vulnerable and are at greater risk of being the victims of auto accidents, truck accidents, or bus accidents resulting in serious injury or wrongful death. Investigating the circumstances of an accident and analyzing the facts is one of the many benefits of talking to an experienced personal injury attorney.

In these challenging economic times more and more people are either uninsured or substantially underinsured. This legal guide provides an explanation of different coverage's and how they affect the legal rights of injury victims and their family members.
1
What Is Uninsured/Underinsured Motorist Coverage?
Uninsured Motorist coverage is first party insurance coverage that can be purchased to protect the insured, any resident relative, minor children, or children away at school, who sustain damage or injury in an auto accident caused by someone who did not have liability coverage. As a general rule one would have to purchase separate coverage for their vehicle (UM-PD) and for bodily injury (UM-BI).
Underinsured Motorist coverage is first party coverage that is usually included when Uninsured Motorist coverage is purchased. This type of coverage will protect the above insured's, who sustain bodily injury in an accident that is caused by someone who carries liability insurance that is inadequate to compensate the injured party. In addition, this coverage does not cover damage to property thus, adequate collision coverage limits are needed to fully compensate any such loss. In California, insurance companies are required to include such coverage unless declined in writing.
2
Underinsured Umbrella Coverage
Many people are familiar with umbrella policies, which provide additional liability coverage above and beyond their auto or homeowner liability limits. In states such as California, some insurance companies offer Underinsured umbrella policies. This first party coverage affords the insured the ability to bridge the gap if the responsible party has inadequate liability coverage in various situations such as injuries arising out of auto or homeowner claims. This coverage also can provide additional protection if the insured's Uninsured/Underinsured Motorist limits are not adequate to fully compensate them for their injuries
3
Requirements In Establishing Uninsured/Underinsured Claims
Uninsured Motorist claims require that there be actual physical contact with another vehicle. In addition, UM-PD claims require that the uninsured driver's identity be ascertained before any such claim is honored. In cases of hit and run, insurance policies as well as state laws generally require that the police be notified and a report made within 24 hours of the incident. In addition, the insurance carrier must be notified within 30 days. Establishing uninsured status of the adverse driver is usually done by obtaining a certificate from the DMV known as an SR-19 in California. Obtaining a declaration under oath from the adverse driver and registered owner of the vehicle, or a declination of coverage from their insurance company is usually sufficient.
In Underinsured cases, proof that the responsible parties liability limits have been exhausted, a copy of the signed third party release and a copy of the third party settlement draft are usually requested.
4
Litigating Uninsured/Underinsured Claims
Uninsured/Underinsured claims are first party claims, the claimants insurance company steps into the shoes of the responsible party. This means that the insurance companies' interests are adverse to that of the insured. If any claim can not be resolved amicably either side can demand arbitration. This starts the litigation process however, it is done outside of court. Both sides have the right to conduct discovery such as propounding interrogatories, requesting document production, and taking depositions. Then both sides attempt to agree on a neutral third party to act as an arbitrator. If both sides can not agree on an arbitrator, they can file a petition with the court, which in turn will select the arbitrator. Regardless of the arbitrators ruling, their decision is binding on the parties up to the limits of the insurance coverage.
5
How Can A Personal Injury Attorney Help
Dealing with insurance companies can be an aggravating and a daunting task. Knowing the law and required documentation can have a great influence on the final results. Furthermore, purchasing adequate first party coverage can be the difference between being fairly compensated for injuries or being left with substantial unpaid medical bills, no compensation for lost earnings, or pain and suffering. If you or someone you know have been injured by someone who is Uninsured or Under-insured the guidance of an experienced personal injury attorney is crucial to a successful resolution of your claim.

San Diego News10 reported that a bicyclist, who had been drinking, was struck by a hit-and-run driver on October 14, 2010. The bicycle accident happened in the bike lane on Pomerado Road, near Caminito Vecinos at about 8 p.m.. According to police he was not wearing a helmet, did not have reflective gear or lights on. The rider had been drinking and was wearing a backpack with beer containers inside it, which may have saved his life. San Diego police Sergeant Art Doherty said "He had a number of beverages in the backpack. It probably absorbed the impact." The man refused to cooperate with police and there was no description of the driver or the vehicle; however, debris from the car found at the scene could lead police to the identity of the vehicle. The bicyclist sustained abrasions, bruises, a fractured vertebra, and was transported to the hospital.

Applicable California Law

The driver of a vehicle who is involved in an accident has the responsibility to remain at the scene of the accident (see my prior Blog post on California's Hit-and-run laws). Bicyclist have the same rights and duties, under the law, as any other vehicle on the road (see my prior Blog post on California's Bike laws), which also prohibit drinking and riding (see my prior Blog post on California's Drunk Driving laws). If the driver of the hit-and-run vehicle cannot be identified, the rider can pursue an uninsured motorist claim if he has the benefit of such coverage. However, the fact that he was intoxicated, riding without a helmet, not wearing proper reflective gear, or using lights would diminish the value of his injury claim to the extent he contributed to his own injuries.

Bicycle riders are at high risk of sustaining serious injuries if they are involved in an auto accident. Bicycle accidents usually result in brain injuries, spine injuries, broken bones, abrasions, and contusions. Doing a thorough and proper investigation to identify the responsible parties, and knowing the proper medical specialists to consult with, are some of the benefits of talking to an experienced personal injury attorney.

UNION TRIBUNE reporter Pauline Repard reports that two woman 19-year-old Elizabeth Belete and 21-year-old Cassandra Robinson were killed and another critically injured in an auto accident on October 9, 2010 at around 7 p.m. in the City Heights area. The accident happened on state Route 15, on the southbound transition lanes to I-805, resulting in both vehicles flying off the freeway. CHP officers said two woman were ejected from one vehicle, and were pronounced dead at the scene by paramedics. Three people in the other vehicle were trapped for some time. One of them was seriously injured, but the two others were reported to have left the scene before police arrived. CHP officers said "We are treating this like a crime scene."

Applicable California Law

The two people who left the scene could face criminal charges for felony hit and run (see my prior Blog post for the law on hit and run). Because the incident is still under investigation, it is not clear who is at fault. However, regardless of who caused the accident, they will be liable for the wrongful death of the people who died at the scene (see my prior Blog post for the law on wrongful death). In addition, they would be responsible for the personal injury and property damage sustained by the others involved in the accident. The heirs of the deceased could also have potential products liability claims against the manufacturer and distributer of the vehicle occupied by the ones ejected (see my prior Blog post on the law on products liability).

A beautiful Saturday night in San Diego turns into tragedy. Figuring out who is responsible can be complicated as two are now dead and another critically injured. Auto accidents resulting in wrongful death, brain injuries, or serious spine injuries can change the lives of those injured and their families. Talking to an experienced personal injury attorney before speaking with any insurance company is critical.

LOS ANGELES TIMES article by Michael Fumento illustrates why drivers who text are more dangerous than those who drive under the influence (DUI). Studies show that texting while driving is more perilous than drinking and driving. A 2009 study conducted by Car and Driver Magazine using two of its staffers, concluded that a legally drunk driver responded to sudden breaking better than a driver reading an E-mail, and significantly better than a driver who was texting. Participants in a 2007 Harris Interactive poll illustrate people's disregard for the laws, despite being in favor of banning the activity. Another study conducted at Virginia Tech, show that texting is 17 times more hazardous than driving and talking on the phone.

Applicable California law

The effectiveness of laws intended to deal with the problem of texting while was addressed at the Transportation Department's Summit in September. In California, penalties are insignificant as there is almost no enforcement ( California Vehicle Code 23123 and 23124 ). A first offence is a $20 fine, and $50 for subsequence violations, as compared to DUI violations that carry jail sentences, license suspension, and fines up to a $1000 for first time offences. The release of the results of two pilot programs by the Department of Transportation in Connecticut and New York, show that a combination of public service announcements and vigilance by police officers had a significant impact on reducing texting while driving.

Education, especially direct at young inexperienced drivers, as well as implementation of greater penalties, are key to deterring texting while driving. Serious injuries and wrongful death arising out of auto accidents, bus accidents, motorcycle accidents, or any accident involving distracted drivers can be avoided and are far too common. Talking to an experienced personal injury attorney promptly after an accident is key.

People who have sustained a Traumatic Brain Injury usually experience a number of physical and cognitive (thinking) challenges as well as personality, behavioral, and emotional changes. All of the effects of the brain trauma can be devastating to the injured, as well as there family and friends (see my prior Blog post on one San Diego woman's story). Here are some of the changes following a Traumatic Brain Injury:

Physical Problems
Decreased Mobility
Headaches and Dizziness
Pain and Sensation Changes
Balance and Coordination
Fatigue and Sleeplessness
Motor Control and Metabolism

Cognitive Changes
Memory and Concentration
Learning and Language
Reasoning and Organization
Flexibility and Speed of Thinking

Personality, Behavioral and Emotional Changes
Depression/Anxiety
Paranoia/ Mood Swings
Insensitivity to Others/Verbal Outbursts
Irritability/Low Frustration Tolerance
Impulsiveness/Decreased Self-Control
Apathy/Passiveness

Changes in personality, after a Traumatic Brain Injury, are usually exaggerated aspects of the victims pre-injury personality. People who have sustained a Traumatic Brain Injury in an auto accident, bike accident, motorcycle accident, fall, or any accident need to be sensitive to the effects of the trauma as indicted above. Talking to an experienced personal injury attorney can provide the guidance the victim and their family need.