Vegas Personal Injury Law Blog

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.

Recently, I have had a number clients who have been involved in auto accidents where they have been partially at fault for an accident and have not been treated fairly by their own insurance company.

NRS 687B.385 states: “An insurer shall not cancel, refuse to renew, or increase the premium for renewal of a policy of motor vehicle insurance covering private passenger cars of commercial vehicles as a result of any claims made under the policy with respect to which the insured was not at fault.”

What is an “at-fault accident”?

This statute was interpreted by the Nevada Supreme Court in the case of State Division of Ins. vs. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 995 P.2d 482(2000).  This case interpreted NRS NRS 687B.385 to include accidents in which the insured was 50% at fault or less.  This case put NRS 687B.385 in conformance with NRS 41.141, Nevada’s comparative negligence statute.  This decision means that an insured is at fault for an accident when his liability for a two-vehicle  accident is exactly 50/50, even though he can still recover 50% of his damages from the other driver under NRS 41.141.

Therefore, an assessment of 50% liability (or more) by your insurance company for an accident as an at-fault accident and  will probably result in an increase in your auto insurance rates.  If you are involved in another at-fault accident, your policy will probably be cancelled. Let me give you a real life example.

A vehicle making a lefthand turn going southbound to eastbound at an intersection enters a very wide lane, and stays to the left hand side of that lane.  Another vehicle, at about the same time, traveling northbound makes a right hand turn and enters the same lane but stays to the right hand side of the same lane.  The driver of the vehicle on the right then comes face to face with roadway signs indicating that the roadway lane is narrowing and she must merge to the left.  She does so and collides with the other vehicle traveling on the left hand side of the lane.

Both drivers are insured by the same insurance company. The vehicle on the right was forced to merge left because the lane narrowed into a single lane width. Roadside hazard/warning signs forced the driver on the right to merge to her left. The vehicle on the left was already on the left side of the roadway and did not have to change it’s position within the lane to enter the narrowed portion of the lane.

Anyone reading this fact pattern would automatically assume that the driver on the right hand side of the travel lane is more at fault for this accident than the driver on the left.  However, the insurance carrier, who was the same company for both parties, determined liability at 50/50 and assessed both drivers with an at-fault accident and raised both drivers’ insurance rates.

The insurance company’s assessment of 50/50 liability for this accident is unrealistic because:

1. The driver on the left had no duty to anticipate the fact that the  driver on the right was going to swerve into her vehicle;
2. If the vehicle on the right did use her left hand turn signal, the vehicle on the left, could not see it because the vehicle on the right was not in front of her vehicle; and
3. The accident occurred eighty-six (86) feet east of the intersection where both vehicles entered the same roadway.

According to Nevada case law the adverse effect of a 50/50 assessment of liability will result in the increase of both drivers’ insurance rates for an at-fault accident.  In the event that there was  an assessment of 51/49 liability in favor of the driver on the left and against the driver on the right, the insurance company could not raise the rates for the driver on the left for an at fault accident.

Obviously, there is no exact science to assessment liability for any accident, however based on the facts and circumstances of this accident, a 50/50 liability assessment is completely unrealistic.

So, why did the insurance company raise the rates of both drivers? The only reason is for an economic benefit. Raising the rates of both drivers results in the insurance company recouping its losses for this accident more quickly from the increased insurance premiums from both drivers, as compared to raising the rates for only one driver. And, the insurance company only has to pay 50% of each party’s property damage, thus forcing the insured drivers to pay their own collision deductibles in order to have their vehicles repaired.

After the insurance company was asked to review the facts and circumstances surrounding this accident and to change it’s liability decision by one percent in favor of the vehicle on the left, they refused.

Now, if in the future, liability can be determined by a trier of fact in favor of the vehicle on the left, will the insurance company return the driver on the left’s increased premiums and collision deductible?  Did the insurance company act in bad faith concerning their liability apportionment decision?

Therefore, if you are in an at-fault accident where your insurance company assesses liability against you at 50/50 (or more), you will be assessed with an at fault accident. You should also  be aware of the adverse consequences of increased rates and cancellation of your policy.  You should also consult an attorney for legal advice concerning the insurance company’s decision.

If you or your children are involved with a fender bender accident where you are at fault, or partially at-fault, and  nobody is hurt, and law enforcement isn’t involved;  you should consider working out the property damage with the other driver to avoid increased insurance rates and/or cancellation of your policy.

Beginning July 1, 2009, Medicare Secondary Payor requires insurers to report any settlement, judgment or award to Medicare. Failure to report any settlement, judgment or award will result in a $1,000.00 per day penalty to the insurance company. Medicare Secondary Payor can sue for double damages, plus interest. The suit can be initiated against the insurance company, the Medicare beneficiary and his or her attorney, as well as the physician, if the settlement of the claim or suit does not protect Medicare’s subrogation interests.

Medicare is now contacting auto insurance liability insurance companies notifying them that funds be held for payment of Medicare liens. This may even include funds for payment of future medical services. If this happens, the attorney will probably receive a settlement check with Medicare’s name on it. This will certainly complicate and delay the settlement distribution to the medicare beneficiary.

It is very difficult to be in a rational state of mind following a motor vehicle accident. The first question that may come into your mind following an auto accident is, “Do I have to stop”? The law says that you must stop after an accident. It doesn’t matter if the auto accident involves a pedestrian, a moving car, a parked car or other real or personal property. If you drive away from an accident you can be charged with “hit-and-run”. Even if the accident is not your fault, “hit-and-run” penalties are severe. You may be stuck with a large fine or be picked up and taken to jail. You could even lose your driver’s license. If you hit a parked car, try to find the owner. If you cannot locate the owner, you may only drive away after leaving behind your name, address and an explanation of the accident. You must also notify the local police either by telephone or in person.

The most important thing to do following a motor vehicle accident is to keep track of the facts.

You should always keep a note pad and a pen in your vehicle. It is extremely helpful to have either a cell phone or a disposable camera to take pictures following an accident.

At the accident scene, before you even get out of the vehicle, try to write down the license plate, year, make and model of the other vehicle or vehicles involved in the accident. After an accident the adverse vehicle may leave the scene, especially in situations where adverse driver has a bench warrant or has no insurance or no driver’s license.

Before the police arrive at the accident scene try to obtain and exchange information with all other drivers. Obtain their name, address, home, work and cell phone numbers, license plate number and insurance company information, including their policy number. Keep a record of all names, addresses, phone numbers and e-mail addresses for any witnesses to the accident.

Take photographs of the damage to the vehicles involved in the accident and also take photographs of the other drivers. They may try to leave the scene without providing you with their information. It is also helpful to have photographs of the accident scene in general. Typically, it takes law enforcement between our 15 minutes to an hour to arrive at the accident scene.

After the police arrive at the accident scene they will ask you to fill out a written statement. While you are waiting for the police to arrive you can start preparing your statement.

Eventually the police will ask you about how the accident happened. They will also ask you if you need medical attention. While you’re at the accident scene your adrenaline will be pumping and you may not experience any symptoms of a neck or back injury. These symptoms may not appear until hours after the accident and often appear after you have left the accident scene. If you have any sign of trauma after the accident, you should relate that to the investigating officer. If you decline medical attention, advise the officer that you will seek medical attention after you leave the scene of the accident with your private physician, quick care facility or your local hospital. If you have symptoms of dizziness, numbness, headache, disorientation or even minor neck and back pain, this should be reported to the investigating officer. If any part of your body made contact with the interior of your vehicle report that to your investigating officer.

In most cases the investigating officer will provide you with either a driver exchange card or a computer printout with basic information concerning the parties and vehicles involved in the accident. Always get the event number before you leave the scene from the officer so that you can obtain a copy of the traffic accident report.

You will either leave the accident scene by ambulance, by a ride in the tow truck, by a ride from a friend or relative, or you will drive your own vehicle away from the accident scene.

At some point after you leave the accident scene you must contact your own insurance company to report the accident.

If your injuries are severe or you have a concern about your health, go to a hospital.

If you have any signs of injury that require medical attention, this should be your first priority after being involved in an accident. See your family doctor, a quick care facility or chiropractor, if your injuries are not severe enough for you to go to the emergency room.

If you go to a hospital, you will need to know that you will probably incur three bills. The first is the hospital bill itself. The second is the bill from the emergency-room doctor, and the third is a bill from the radiologist who reads your x-rays. While you’re at the hospital you should try to obtain information concerning the identity of the healthcare providers related to these three bills. Oftentimes, it is difficult to obtain copies of the bills related to the emergency-room doctor and radiologist, because these bills most often are submitted to health insurance and the injured party never receives a copy. It is important for you to tell your attorney that he had x-rays at the hospital, so that he can order the radiologist’s bill.

If your symptoms continue, you should seek follow-up medical care. This may involve going to a chiropractor, doctor of osteopathy or medical doctor who is familiar with personal injury claims. If you go to a general practitioner who is not experienced in personal injury claims, the record keeping and the ability of the healthcare provider’s office to fully address your personal injury claim may not be sufficient.

If you lose time from work, keep a log of the time that you’ve taken off work as a result of the accident. If you use sick days, or if you use PTO or FMLA, this should be documented. Always require your treating physician to provide you with a doctor’s excuse, whether or not one is required by your employer. In the event that you have an inability to function properly at work due to your injuries, this should be documented by your supervisor. Also, a letter from your employer verifying and income loss, use of sick days, use of paid time off, or use of FMLA is extremely important to document your wage loss claim.

If you are a student, and you miss time from school, document missed school time and your inability to perform your schoolwork.

If you have visible injuries continue to take photographs of your injuries periodically and document the date of each photograph.

Keep a daily log of your pain, discomfort, emotional distress, fatigue, tenderness and inconveniences. Write down your feelings and experiences on a day-to-day basis documenting how the injuries have interfered with your daily life and relationships. This information should also be reported to your health care providers so that it can get into your medical records. See my Blog Post, “How Will Your Auto Accident Claim Be Evaluated?”

In the event that your vehicle is driveable, there is no rush in getting your vehicle repaired. Most people are anxious about getting their vehicle quickly repaired after an accident. If your vehicle is driveable, try to have the adverse driver’s insurance carrier take care of the property damage. This way the property damage will not be subjected to the deductible of your own automobile collision coverage. Ask the adverse insurance company if they utilize preferred shops? In the event that your vehicle is repaired at a preferred shop, the insurance company is on hook for any delay in the repair of your vehicle. In the event that your vehicle takes longer than expected to be repaired, the insurance company has to eat the delay by paying for your rental car during the entire time that your vehicle is being repaired. If you choose your own repair shop, the adverse insurance company will most likely only pay you for the reasonable amount of time that it should take to have your vehicle repaired. Believe me when I say that these delay issues are common problems on personal injury claims.

It is important to obtain a copy of the property damage estimate. In event they have a preliminary estimate from an insurance company and you take the vehicle to a repair facility, that repair facility will determine whether or not they can repair the vehicle for the amount of the preliminary estimate. If they can not, the proper procedure is that the repair facility will contact the adverse carrier to have a follow-up appraisal of the vehicle, especially after the vehicle is torn down and exterior parts are removed to reveal underlying damage.

Keep track of all of your out-of-pocket expenses for things such as ice packs, heating pads, bandages based bandages, childcare expenses, cancellation of vacations or loss of pre-paid trips, replacement of clothing, taxi service, or payments to others for transportation.