Court won’t disturb $82.6M award in SUV rollover

Supreme Court rebuffs Ford appeal of $82.6 million award to woman paralyzed in SUV rollover

• On 10:22 am EST, Monday November 30, 2009

WASHINGTON (AP) — The Supreme Court has left in place an $82.6 million award to a woman who was paralyzed after her Ford Explorer rolled over.

The justices on Monday rejected Ford Motor Co.’s challenge to the portion of the award, $55 million, that was intended as punitive damages. Ford argued that it should not be punished because its design of the vehicle met federal safety standards.

A California state appeals court earlier rejected Ford’s contention and upheld the award to Benetta Buell-Wilson.

She was driving on an interstate east of San Diego in January 2002 when she swerved to avoid a metal object and lost control of her 1997 Explorer, which rolled 4 1/2 times. The mother of two was paralyzed from the waist down when the roof collapsed on her neck, severing her spine.

A jury initially awarded Buell-Wilson $369 million, including $246 million in punitive damages but courts twice cut the size of the award. The jury concluded that Ford knew the Explorer had design defects that made it prone to rollovers in emergency maneuvers and the collapse of its roof.

The case is Ford v. Buell-Wilson, 09-297.

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As this wonderful time of the year approaches alcohol related accidents increase. Part and parcel to holiday gathering is social drinking. Unfortunately just a few drinks can change an individuals ability to make good decisions. Pursuant to Nevada Statute an individual may not operate a motor vehicle upon which the public has access when their blood alcohol level is 0.08 or greater. In most individuals this equates to two beers consumed within one hour. While an individuals blood alcohol level may not exceed 0.08, just a few beers may impact an individuals perception and reaction time. This error in judgement often results in substantial bodily harm and/or death when vehicles collide.

Following a few simple guidelines can ensure you and your family make it home safely this season. As a general rule of thumb, if you know you are going to be out drinking, be sure and have a designated driver. In the alternative, program a taxi cab companies telephone number in your phone with the intention of using that number before you leave your home. Most people leave their social gathering unsure weather or not they are they are safe to drive. While it is always best to play it safe, here is the general rule:

For every alcoholic beverage consumed, it takes an hour for the beverage to leave your body. For example: If the average individual consumes 4 beers in 2 hours, it will take 4 hours before the alcohol leaves their body. However, the effects of consumption may still be present.

Play it smart this year and make good decisions when it comes to getting behind the wheel. Waking up in the hospital or in jail is no way to spend your season. From all of us at Benson & Bingham we wish you a safe and Happy Holiday.

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When purchasing insurance coverage for your motorcycle ALL riders are encouraged to purchase Medical Payments. Further, each rider should purchase the maximum limits for which their insurance company offers. Most insurance companies limit Med Pay coverage to twenty-five thousand dollars ($25,000.00) for motorcycles. Many riders are not familiar with medical payments coverage and how such coverage benefits them in the event of and accident. However, the concept of Med Pay Coverage is simple. If you are involved in a motorcycle accident and have Med Pay Coverage of ten thousand dollars ($10,000.00) then your insurance carrier will pay up to ten thousand dollars ($10,000.00) of your medical bills related to the accident. Even if you have health insurance, most health insurance policies require the insured to make co-payments.

To pay these co-payments you can have your Med Pay provider (Auto Policy) directly send you the ten thousand dollars ($10,000.00) to pay your co-payment. Further if you do not have health insurance, again your Med Pay policy will pay up to your limits. More importantly, Medical Payments coverage is a “no-fault” policy. Thus when coverage is triggered, your insurance carrier cannot raise you rates or drop you from coverage. In the event of a single vehicle motorcycle accident the insured is still covered. So next time you talk to your motorcycle insurance agent ask about Medical Payments Coverage.

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Motorcyclists have the same rights and the same responsibilities as other drivers. However, there are special situations and conditions we all need to be aware of so we can safely share the road with them. Following the suggestions below will significantly reduce a riders risk of injury.

First, Motorcycle operators have the right to operate their bikes in an entire lane. However,  two motorcycles may maintain the same lane. Second, because of their size and single headlight, motorcycles are harder to see and may appear to be farther away than they actually are. Third, it is important to remember that other drivers have a hard time determining the speed of  motorcycle. Fourth, road condition and weather conditions (wind) can change a motorcycle’s position of the road.  Fifth, turn signals do not automatically cancel after a turn on a motorcycle. So do not always assume a motorcycle is turning or changing lanes because a turn-signal is illuminated.   Sixth, when approaching a motorcycle from behind, provide an extra cushion for motorcyclists.  Seventh, when approaching a motorcycle traveling in the opposite direction, double check to ensure your high beam lights are not illuminated as high beams may effect an motorcyclists balance and visibility creating a dangerous condition.

Finally, poor weather conditions (rain, wind, snow) can create very difficult riding conditions for motorcyclists so give riders plenty of space. Keeping these simple thoughts in mind and providing these courtesies while driving near motorcycles will increase the safety for all of us on the road and help save lives in Nevada.

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In 2003, the Nevada Legislature created political campaign entitled, “Keep our doctors in Nevada.”  The argument was that due to medical malpractice insurance premium increases local doctors could no longer practice affordable medicine due to the escalating costs.   The Victim’s rights groups and Personal injury attorneys banned together to unsuccessfully fight this tort reform legislation.  In essence the laws were reformed to:

1.) Limit the amount of pain and suffering a victim could collect to $350,000; therefore a person who dies or is paralyzed gets only $350,000!

2.) Limit the attorney fees to discourage attorneys from taking good cases from 40-50% to 15% on amounts over $600,000.

3.) Reducing the time Victims have to sue from 2 years to 1 year; aka, the statute of limitations.

4.) Medical expenses and Wage losses (economic damages) are not part of the pain and suffering cap and are unlimited, but truly these costs are just reimbursement of costs and wages the client/victim would have made or need to make.

What these rules have done is effectively stopped good lawyers from taking good cases.  Unless a person understands why, they may disagree with this author.  We need to fight for just and fairer laws.  A laymen’s perspective may ask, “attorney fees seem like a lot for $15% over $600,000?”  Not true.  When personal injury lawyers decide whether they want to take a case they ask themselves:  Does the case have merit?  Is the case Just? Can we prove it?  Is the case worth it from a business standpoint? The official rule for attorney fees is: Forty percent of the first $50,000 awarded; 33 and one-third percent of the next $50,000; 25 percent of the next $500,000 awarded; and a cap of 15 percent for awards of $600,000 or more.

The first question is usually easy:  we simply ask another medical expert their opinion on the facts of the case and whether the doctor deviated from the standard of care.  Often, this is even easier if the facts indicate an obvious error. The next question is whether the case is Just?  This is simply a balancing test on whether the victim was so injured as to justify the need of litigation over the need to sue a caregiver.  Some cases are so minor that they don’t warrant a lawsuit.  The third question is a matter of proof.  Cancer victims often cry fowl that the doctor misdiagnosed the disease leading to a death.  These can be tough to prove:  would you have survived if they had diagnosed properly? –Tough question that borders on speculation, which is a fundamental basis, the law does not allow.  Can you prove that the doctor accidentally cut your bowels during the stomach operation leading to your infection, or was that an appendicitis issue?

THE BUSINESS DECISION:  RISK VS. REWARD

Also, a legal practitioner will always ask, “Does this case make economic sense?”  Most people don’t understand the personal injury lawyers take the case and front all the expenses necessary to perform a jury trial.  This is very, very expensive.  Each doctor that testifies, as an expert must be paid.  The victim usually can’t afford this, so the attorney’s front these costs.  Why would an attorney represent a victim that has suffered immensely, but the case is too expensive and the risk of losing is great.  They won’t.  Remember that law firms are businesses that employ many persons.  A firm can’t take too many losses or they wont operate; hence the art of case selection.  These laws create public policy; in essence, reducing the number of attorneys taking cases, which in turn, means they only take the most horrific, easy to prove, profitable cases.  The rest of the maimed public is stuck.

THE ULTIMATE RECOVERY

I don’t think anyone besides doctors will argue that $350,000 cap is fair.  There are just too many horrific injuries that justify more compensation.  This is just an idiotic law.  Forget attorneys, forget doctors, this is about injured victims—people who have been harmed and in essence are tortured for life.

THE TIME FRAME:  1 YEAR

This is also a horrible law.  One year is not enough time to realize you are injured due to malpractice, you must interview possible attorneys, collect all the necessary medical records which are normally stored in other states, hire an expert (which will also be located out of state), and finally, allow for a party to grieve.   If you lose a loved one, litigation and suing is not on the forefront of someone’s mind.  One year is simply too soon to be the cut-off.

THE OTHER TIME FRAME:  NOT MORE THAN THREE YEARS

If you have a sponge left in your abdomen after surgery, but it is not recognized for five years, you can’t sue!  Is that fair? No.  Enough said.

Our law firm handles mal-practice cases because we believe the system needs experience attorneys to protect the public from harmful doctors and to encourage proper medical treatment.  No one is above the law.  Contact  Benson and Bingham if you have been injured through no fault of your own.

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NRCP 68 and NRS 17.115 are the governing rules for Offers of Judgments as they relate to prevailing parties.  These rules are extremely important for Las Vegas personal injury lawyers who litigate cases in Nevada.  A failure to properly submit an Offer of Judgment can cost your client dearly in attorney fees and costs.  Normally, costs are awarded to the prevailing party in a lawsuit.  The award of attorney fees, however, are governed under the rules of offers of judgment.  An offer of judgment (OOJ) can be submitted anytime after a party is served.  There are factors known as “Beatty Factors” that control specifics of the fairness of the OOJ; for example, the timing of the OOJ, and the fairness of the other parties knowledge of the facts so that they could actually make a reasonable assessment of the risk.  The failure of accepting an offer of judgment can cost the losing party thousands in attorney fees.

In the Estate of Miller, 125 Nevada Adv. Op. No. 42 September 24, 2009, the court ruled that judgment on Appeal can qualify as a “more favorable judgment” for purposes of the fee shifting provisions of the NRCP 68.  It also rules that appellate fees are recoverable, and that those pro se persons who represent themselves and later hire an attorney can get those fees awarded for the attorney who defended or prosecuted the case.

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Accidents in Las Vegas have a pecking order with respect to which insurance policy must cover first, second, third, fourth, etc.   The owner’s policy of the at-fault party is the primary coverage.  Then, the driver’s policy may be utilized if the damages warrant.  Often the coverage of the victim’s insurance (1^st party coverage) would then extend benefits through the UM benefits (under-insurance coverage).  Then finally, if the driver and owner were different persons, and the driver possessed a separate policy that policy may also be utilized if the damages were great enough.

When multiple “at-fault” drivers cause an accident, the law of joint and several liability kicks in, whereby the victim can collect 100% of his/her damages from either party.  So, if a party has minimal coverage and the other at fault has commercial limits, the commercial limits policy would then be on the hook for the total damages.   Skilled personal injury attorneys will attempt this approach.  If there are no concurrent tortfeasors, then each of the separate acts may be argued as one with hopes that the events appear to be in concert.

The Nevada Supreme Court recently outlined procedural rules for collection on insurance policies for damages in a car accident.  A passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver’s single insurance policy liability benefits based on the permissive driver’s negligence and under-insured motorist benefits based on the other driver’s underinsured status.

The anti-stacking rules set forth in the prior Nevada Cases are not implicated when a passenger whose injuries are attributable to two jointly negligent drivers, exhausts the liability limits of the permissive driver’s policy without satisfying his or her damages, and seeks recovery under the permissive driver’s underinsured motorist policy based on the other diver’s underinsured status.  This ruling came down in the case of Delgado v. American Family Insurance Group, 125 Nev. Adv. Op. No. 44., October 1, 2009.

If you need a Las Vegas Personal Injury Attorney that understands complex insurance laws call the office of Benson & Bingham:  702-382-9797.

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