Vegas Personal Injury Law Blog

Between the dates of September 5, 2008 and October 9, 2008 five infants, all under the age of 3 months died from similar symptoms.  Each of the infants lived in a separate building of this Section 8 apartment complex. One infant died in each five of the  separate  buildings of the six-building complex.

All the infants passed away within one week one week of experiencing the first symptoms.

Adults living with the infants experienced skin rash similar in appearance to poison ivy, fatigue and headaches.

It is reported that weird looking flies appeared from the air conditioning ducts.

The pesticide utilized in these buildings possibly contained Bifenthrin. A product sold by Nu-Calgon was used to clean the coils of the apartment air conditioners. The Nu-Calgon product consists of aqua ammonia, diethylene glycol monethyl ether, etheline glycol, n-butyl ether tetrasodium EDTA, caustic soda sodium metasilicate, sodium nitrate, butane and propane (volatile components are butane and propane).

Just prior to Thanksgiving 2008 all of the air conditioning duct work, water heaters and water heater water lines were replaced in these apartment buildings.

Toxic mold, Sudden Infant Death Syndrome and Radon have been ruled out as causes of death.

As revealed by autopsies, common symptoms and pathology  experienced by the infants prior their death were as follows:

Some prospective clients expect the attorney to get all their documentation. This undoubtedly will slow down the progress of their claim. Others are very meticulous and come to initial appointment very prepared. Obviously, this preparation will expedite the successful conclusion of their claim.

This Blog will provide you with valuable information so that you can be fully prepared for your initial consultation with your attorney. Your attorney will be impressed if you provide him with all this documentation at your initial consultation.

1. The Accident Report.

One of the most important documents in assessing the liability aspect of a personal injury claim is the accident report. On auto accident cases, the traffic accident report contains useful information concerning the identity of the involved vehicles and the identity and contact information for the parties for your attorney to report your claim to your insurance carrier and the adverse insurance carrier. It contains information concerning how the accident occurred, the issuance of citations and factors contributing to the occurrence of the accident. This information is helpful to the attorney in determining who was at fault for the accident. It can provide information on comparative negligence. (Sometimes, more than one driver causes an accident.) Contact information of independent witnesses is also contained on the report. Before an adverse insurance company will pay for your property damage, they need to take a statement from their insured and/or driver; and, they need to have a copy of the traffic accident report.

Unfortunately the traffic accident report will not be available from law enforcement agencies in Las Vegas for approximately ten days to two weeks after your accident. If the accident involves a DUI or hit and-run, the report won’t be available until the accident investigation is complete. It may take a month or longer before these reports are available.

Your investigating officer should give you a computer printout that has the identity of the drivers, owners and passengers; and, the names of the auto insurance companies and their telephone numbers of the insurance companies, or the insurance agents or brokers. No addresses or telephone numbers of the drivers are contained on the printout. The is printout also contains the event number which will be helpful to your attorney in obtaining a copy of our traffic accident report, so bring the printout to your attorney.

On premises liability cases, the business owner or managers may complete an accident report. You should always request a copy. If you fill out a statement always request a copy. Most businesses will not give you a copy of their report. In most cases, your attorney will not be able to get a copy of your report until after litigation has been commenced. So, be persistent and assertive about getting a copy of your report. This report is helpful to our attorney for the same reasons that an auto accident report is helpful. Casinos are generally self-insured, so you generally do not find insurance information on premises accident reports.

2. Your notes regarding the accident.

Your notes will contain information concerning the details of the accident, what happened at the accident scene, your symptoms and how they came on, the effect the injury is having on our daily life, witness identity and contact information, license plate numbers and conversations with involved parties. This is why it is important to keep a pen and writing pad in your car. Your notes may contain the names and addresses of your medical providers. You should bring your notes with you to your attorney consultation. I find that most people don’t know or can’t remember which ambulance company transported them the hospital. Your notes may contain this information. Your notes also may contain information about how your body moved during the collision, or may contain a description of any contact your body made with the interior of your vehicle.

3. Photographs.

It’s a good idea to keep a disposable camera in your car in case you’re involved in an accident. Today, almost everyone has a cell phone. Most modern cell phones contain a digital a camera. A picture is worth a thousand words. So, take some photos of your vehicle, and the other vehicles involved in the accident. Take a picture of the adverse driver and his passengers, his license plate, especially if there is an issue concerning who was driving the adverse vehicle, or if the adverse driver decides to leave the scene.

You should also provide the attorney with photos of your visible injuries. Some visible
injuries will dissipate with time. Some may not appear until the next day. (Black and blue marks and swelling). Some injuries, like seat belt injuries, may appear on or near your private parts. These photos, if they have to be taken at the attorney’s office, may be embarrassing to you, or they may be inappropriate to take at the attorney’s office.

4. The Declarations Page of Your Auto Insurance Policy.

This document is something that you get as every six months from your carrier. It is sometimes referred to as a premium renewal notice. This document is helpful into to your attorney in determining what coverages that you have available for the accident, such as med pay, uninsured/underinsurance coverages and collision coverage and the applicable deductible. If you have an umbrella policy bring a copy of that dec page with you. Umbrella policies should provide you with additional uninsured/underinsured coverages. If you reside with any relative that has auto insurance on their vehicle, bring that dec page, because their auto insurance may apply to afford you with additional coverage, especially when your injuries are severe.

5. Your Health Insurance Card.

Your attorney needs to know if your have health insurance available to pay your medical bills. The interplay between your health insurance coverage and your med pay can literally save you thousands of dollars on a n auto accident claim. Also, your health insurance will likely have a subrogation lien associated with the use of your health insurance on an auto accident claim. (Note: some private health policies do not contain a subrogbation clause.) To inquire about subrogation liens, your attorney will needs an address or telephone number, which will be found on your health insurance card.

6. Medical Bills or Records.

You may be given discharge instructions from the hospital. These may contain your patient number or medical records number which will be helpful to your attorney in ordering your emergent bills and records. Bring your prescription receipts. Pharmacies will charge exorbitant fees to produce copies of your prescriptions, so bring these receipts to your attorney.

7. Pay Stub.

If you missed work, or will miss work because of your injuries, your attorney will need this info to verify your wage loss, Your pay stub will contain contact information concerning the entity that processes our payroll. This can be an in-house or an independent company.

8. Clothing or Damaged Clothing.

If you are involved in a slip/trip and fall accident the shoes that you were wearing are an important piece of evidence. Provide your attorney with the shoes of photos of them. These shoes should not be discarded until your claim or case has been completed.

If your clothing was damaged in a slip/ trip and fall or auto accident, this can provide proof concerning the severity of the fall or collision and the location of your injuries.

Recently, I received a telephone call from a woman who was involved in an accident in her boyfriend’s garage. Her boyfriend had recently purchased a new home.  The girlfriend lived with the boyfriend about 75% of the time.  While the boyfriend was hospitalized, the girlfriend went into the garage to put some kitchen appliances in a cabinet that was hung on the wall.  As she was doing so the cabinet fell and landed on her foot causing an injury requiring surgery.

Although the girlfriend  had health insurance, her personal responsibility on her medical bills is in excess of $50,000.00, and her treatment is ongoing; and, she is still experiencing persistent pain and will require future medical treatment.   An inspection made after the girlfriend’s  accident showed that the cabinets were improperly secured to the wall.  The couple that sold the house to the boyfriend are elderly and now reside in a remote state.
The initial question that had to be answered was whether the boyfriend’s homeowners policy would provide any coverage for the girlfriend? There are two types of coverage on a homeowners policy that could possibly provide coverage for the girlfriend.  These two types of coverage are premises med pay and liability coverage. Premises med pay coverage (usually between $1,000.00 and $10,000.00 on a homeowner’s policy) will pay for the medical bills of a visitor that is injured while on your property, regardless of fault.  However, this coverage excludes resident relatives and non-relatives who live at the residence on a regular basis. Therefore, the girlfriend was not eligible for premises med pay coverage.

Liability homeowner’s coverage provides recovery for persons who are injured on your property. This coverage is fault-based.  So, for this coverage to apply the owner must be negligent in causing an accident.  Since the boyfriend did not hang the cabinets and did not know about  the defect that caused the cabinet to fall, liability coverage from the boyfriend’s policy was not available to the girlfriend for her accident on the boyfriend’s homeowner’s policy.

The second question that had to be answered was whether or not the sellers’ homeowner’s policy would provide liability coverage for the girlfriend?

Virtually all homeowner’s coverages and automobile coverages are “occurrence policies.”  With this type of coverage, the occurrence (negligent act and accident) must occur within the policy coverage period or term of the policy.  The girlfriend’s accident occurred the after the house was sold. The seller’s homeowners policy was not in effect at the time of the occurrence and the girlfriend’s accident  did not happen  within the coverage term.  So, the sellers’ homeowner’s carrier will deny liability coverage for the girlfriend’s accident.

If the same negligent act occurred within the coverage period, lets say during the walk-through, prior to the closing of the sale, then the negligent act and the girlfriend’s accident would have occurred within the coverage term or period, and there would have been liability coverage from the seller’s policy for the girlfriend’s loss.

With an occurrence policy, if the occurrence happens within the coverage period, and the policy then terminates, even if the a claim or lawsuit is made years later, the occurrence policy provides coverage.  For example, if you are in an injury producing  automobile accident today and you don’t like the way that your carrier is handling the accident, and you cancel your policy tomorrow, and the injured party sues you one year later, you will still have liability coverage for this accident. Your liability coverage will cover the costs of your legal defense and damages up to the limits of your liability coverage.

Therefore, occurrence coverage will cover incidents arising during the coverage period, regardless of when those claims are reported, so long as they are made within the applicable statute of limitations, which can range from one year to three years for  negligence, depending on which state the accident occurs.

So occurrence coverage has a tail coverage period which makes it more expensive than “claims-made” coverage which has no tail.  For that reason, claims-made coverage is cheaper than occurrence coverage.  We see claims-made policies on professional liability coverage, such as malpractice policies or business liability policies.  Claims-made policies cover incidents arising during the policy period which are also reported during the term of the policy.  You can purchase an endorsement on a claims-made policy that responds to incidents which occurred before the policy start date (also known as retroactive date).  You can also purchase a tail coverage on a claims-made policy which covers incidents that occur during the policy term, that have not been reported to your carrier during the policy term. So, if there are no prior acts or retroactive endorsements or tail endorsements on a claims-made policy, it will be  cheaper than occurrence coverage.

For example, many hospitals will purchase claims-made coverage for their doctors malpractice insurance.  On a claims-made basis, if the doctor leaves the hospital to enter private practice,  he should purchase tail coverage to cover occurrences that happened while he was working for the hospital that are reported after his employment with the hospital ends.

Getting back to the girlfriend’s accident, her only remedy is to file suit against the uninsured elderly sellers who reside out of state. If she could  afford to pay an attorney to obtain  a judgment against the sellers, she may never be able to collect on it.  So, before a suit is filed against the sellers, an asset check should be done to determine if the sellers are candidates for filing bankruptcy to avoid the judgement.  Remember, the sellers can liquidate all their assets and use them pay down their mortgage.  If the seller’s state has homestead laws; or, if the sellers file for bankruptcy, the girlfriend may not be able to execute on any judgment against the sellers.

Pain and Suffering Damages are the effects on a person’s life as a result of physical and emotional injuries.  They include the loss of enjoyment of life and pain and discomfort doing daily activities such as cleaning the house, going out with the family and raising children. Placing a value on pain and suffering resulting from a motor vehicle accident is a is a difficult task for any mediator, arbitrator or juror involved with the personal injury case.  There’s no one to scientific formula, chart or table that attorneys and insurance companies can look to you determine the value of a person’s physical and emotuional pain and suffering as the result of an accident.

I was surfing the Internet recently when I came across a web site that claims to evaluate  personal injury claims.  I typed in a medical bills of $5,498.00, vehicle repair costs of $1,000.00, rental car expenses of $250 and wage loss of $500.  The program gave me an estimated claim value of between $13,006.95 to  $26,243.41.  Based on my 25 years of experience in dealing with personal injury cases, I find this to be a simplistic and unrealistic evaluation, especially in situations where a person is not represented by an attorney. Don’t rely on this type of information to evaluate the value of your auto accident case.

Oftentimes, the victim that suffers the most as a result of an auto accident does not receive adequate compensation for pain and suffering because that victim has inadequate documentation, incomplete documentation, or lacks good pain and suffering witnesses. Studies have shown that juries evaluate pain-and-suffering  higher in urban settings than juries in  rural settings.

There are many factors that need to be considered in determining the value of pain and suffering.  Juries (and even insurance companies) look to the credibility of the victim as a witness.  Arbitrators, mediators, jurors and insurance companies also look to see if a person’s actions following an accident are consistent with someone who is in pain.  They look to see how the injured parties everyday life is changed as a result of an accident.  Sometimes extraneous factors such as pain tolerance, occupation and marital status are sympathy factors that can increase the value of a personal injury claim.  The skill and experience of the attorney representing the injured party can influence the evaluation of pain and suffering damages.

Juries often look to, and are swayed by, factors such as the age.  Older people probably will suffer more from auto  accident injuries because their body  cannot recuperate as well younger people.  Juries often have the mind set  that  that younger people should heal more quickly than older people.  Some juries  think that a person suffers more because he continues to care for his children while healing for an injury.  One of the most of the important factors that jurors consider in evaluating pain-and-suffering is the honesty of the injured party.  Sometimes the injured party can be too prepared and too confident on the stand.  

People that have an aggravation of a pre-existing injuries will usually receive less for pain and suffering then people with new injuries.  This has a lot to do with insurance company evaluation.  Their position is that aggravation cases are easy to defend. However, in litigation it should be the attorney’s job to you convince the jury that the old injury was aggravated and that the than aggravation of a pre-existing condition requires more medical treatment and results in more residual pain and suffering than an original injury.

More medical treatment does not necessarily mean more money for a pain and suffering.  However, the total amount of medical bills is definitely one factor that is considered.  Running up medical bills unnecessarily is looked at with a fair degree of suspicion.  Stretching out treatment on a minor injury can be interpreted as greed on the part of the injured party, and this is certainly the position that will be taken by the insurance company.  Jurors have a tendency to award higher damages for pain-and-suffering on accidents that involve major property damage as opposed to minor property damage.

I was in a settlement conference  with  District Court Judge Timothy Williams on a wrongful death case.  The judge told my clients that juries are very unpredictable.  He gave the example of two  separate  cases that went to trial recently involving similar injuries with meniscus surgery following a knee injury.  Two different juries came back with divergent evaluations of medical bills and pain and suffering.  In one case the jurors awarded a reasonable amount in a trial where evidentiary issues should have drastically reduced damages, and in the second case the jurors’ award reduced the actual medical expenses drastically and awarded the injured party nothing for pain and suffering. 

Therefore, all we can say about the value of pain and suffering on an auto  accident case is that there is no definite formula.  Generally, the better pain and suffering is documented, the higher the award for pain and suffering.  The concept that pain and suffering is worth some multiple of the medical expenses is not a standard of evaluation that is uniformly applied.

As you can see documentation is the key to obtaining a reasonable settlement on the personal-injury auto case.