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Interviewer: What factors do you consider in determining losses incurred as a result of an injury?

Reuben J. Donig, Esq.: All right. Well, separate and apart from the issue of liability, in other words, was it somebody else’s fault, generally, I break the losses down into two general categories, economic and non-economic losses or damages. In considering the economic damages, I’m looking at what were the medical expenses that you’ve incurred and how were they paid, and who paid them, and is there still any money owing on those medical expenses? Because it’s not the billed amount from the doctor that you’re entitled to recover from the at-fault party, it’s the amount that was actually what’s called “Incurred,” which means paid and accepted by the doctor or the medical provider as payment in full.

So, we’re looking at that for past medical expenses, and we’re looking at future medical expenses. What medical treatment and procedures are you likely to need in the future, and how long will you need them for, and how much will those cost? And that’s even harder to figure out sometimes because the amount of the cost is hard to project, and whether it will or won’t be covered by insurance is very uncertain, but somehow you have to be able to figure out what are the economic losses for past and future medical expenses. And then what are the economic losses for the amount of time that was missed from work, the past income loss, or the lost possibility of working, or the diminished earning capacity?

If you maybe were self-employed but can no longer do all of the things as before, you might have to change your profession. You might have to take time off, go through retraining, there may be costs involved and associated with that. And when you go back to working in another field, you might have a reduced amount of income or reduced earning capacity. So, those are part of the losses that have to be calculated.

There may also be some other associated costs and factors such as additional living expenses as a result, or you need help that you didn’t need before the accident that you have to pay for. And then there are the factors of the general damages, the non-economic damages, the pain and suffering damages. And what I look for is what kind of things were you doing before that you can no longer do, whether they were fun, recreational, interesting, worthwhile to you. You know, were you playing a musical instrument or a sport that you had to give up that was a major part of your enjoyment of life? Were you able to interact socially with friends and with family, and you had to give that up?

Used to host the big Thanksgiving dinner at your house every year, but you can’t do that anymore. That was a great source of fun. Playing with children, playing with young children, playing with your grandchildren. Have you lost some of that? Have you lost the ability to enjoy intimacy with your spouse? Have you lost the ability to get a good night’s sleep? Are you cranky as a result? Is your health worse? Are you unable to do the things around the house that you used to be able to do or have to do? Whether it’s as mundane as the laundry, or cleaning your kitchen or your bathroom or doing the shopping or washing the dishes, and putting things away. Unable to drive a car because you now have fear.

These are all things which you can’t necessarily say, well, this is how much it cost me, therefore, I’m entitled to get compensation in that amount, but through some rough sense, you have to be able to formulate and put a value on those losses as well. Often, they are the major part. They are even much more substantial than the medical expenses and income loss, and those are called non-economic damages.

 

Video Transcription

Interviewer: What is a deposition?

Reuben Donig, Esq.: A deposition is a procedure that is authorized by law where a party is sworn by a judicial officer called a court reporter to tell the truth, the whole truth, and nothing but the truth. It’s the same oath that’s given in a court of law.

The deposition then proceeds with a questioner, usually an adverse attorney, asking the deponent, usually the party who is making the claim in cases of personal injury. Although, the deposition can also be taken of other parties or witnesses.

That person is then asked a series of questions, and the information and responses that are given to the questions are testimony under oath. They can be used in court in the subsequent proceedings. But the deposition itself is usually administered in the attorney’s office or conference room, or a conference room of the court reporter.

Depositions are taken down stenographically by the court reporter and transcribed into a booklet. They can also be video taped for use at trial in the case, if the case does proceed to trial.

 

If I am the party at fault for the accident that resulted in my injury, can I still recover damages?

Video Transcription

Interviewer: What is mediation?

Atty. Donig: Mediation is a process where the parties in good faith attempt to resolve and settle their differences without resorting to a trial or arbitration or some other proceeding where the final result is left in the hands of a judge or a juror or an arbitrator, or someone else. In mediation, you have control, together with the other side, of how your case and if your case is resolved. It is done in a mediation which is facilitated by a person who is called the mediator. The mediator is supposed to be and invariably is a person who is very well trained in the art of helping the parties figure out how to resolve their differences. I won’t go into the details, but there are a lot of tools. I wanna call it tricks, but maybe tricks of the trade is a proper phrase. There are a lot of tools at the disposal of the mediator that he can use or she can use to assist the parties and again, it’s the parties not the mediator. To assist the parties in figuring out how they can resolve their case, reach a settlement, shake hands, and walk away, everybody reasonably satisfied. I hardly recommend the mediation process. I, myself have used it on behalf of my clients probably hundreds of times and almost always do we find it to be a successful manner of resolving disputes.

 

Video Transcription

Interviewer: What is my case worth?

Reuben Donig, Esq.: Another way of asking that question is how is a case valued or how are damages evaluated? To start with, you have to determine whether you have any fault in causing the accident or your injuries. If you’re completely faultless, if there’s no fault of yours that caused the accident or contributed to the accident or contributed to your injuries and it’s entirely somebody else’s liability and responsibility, then we start with that. One hundred percent, they owe you 100% of your damages. Your damages are your economic and your non-economic damages.

Your economic damages are your diminished earning capacity, any monetary losses that you’ve experienced from inability to work or time off from work or reduced amount of work. If you’re not gonna be able to work to the same extent or in the same capacity, in the future, you may experience future diminished earning capacity or income loss. Those things are part of the valuation of your damages.

Your past medical expenses that you incurred and future reasonably anticipated medical expenses that you’re likely to incur are another component of your economic damages. Any other property damage that you suffered or any out-of-pocket expenses. If you had to hire a gardener, someone to drive you, someone to clean your house, those are all part of your economic damages.

You’re also entitled to be compensated fully for your pain and suffering. This is also called general damages. Not only the actual pain but the risks involved in the medical procedures that you had to undergo if you had to undergo risky surgery. For example, the diminished quality of life. You’re not able to engage in the same recreational activities or do the same daily activities, or you can only do so with difficulty or pain or to a limited extent.

If you can’t sleep well at night and that causes you to be drowsy and less functional or you can’t exercise as before and you’re health deteriorates and you gain weight. These are all components of general damages for which there is no defined or fixed way of calculating the amount that you should receive. You can’t look it up on a computer or in a book. It’s just a matter of feel.

After nearly 40 years of practicing law, I’ve developed pretty good feel for what general damages should be, depending on the kind of injuries and how those injuries have affected a person. And of course, the other side has trained adjusters who have a feel for it as well, although their feel is usually considerably for less money than I value it at. And then if the case goes into litigation, it’s a matter of, give or take, negotiations, possibly mediation.

Ultimately, if it can’t be agreed upon, the ultimate decider of what your case is worth is a jury of 12 people and they can see things differently. One group of jurors might see a case is $50,000. Another group might hear the same facts and say it’s worth $500,000. So that’s why there’s no fixed way of calculating it. But I will say that attorneys such as myself who practice personal injury law and who’ve been doing so for a long time and have done so well and successfully usually develop a pretty good sense of what a case is worth.

We won’t have that right from the beginning. We have to see how things play out. But at an appropriate point in the handling of your case, we should be able to come up with a rough sense of what the value of your case is.

San Mateo County Personal Injury Attorney Reuben Donig:

It applies when you’ve been injured by a motorist who doesn’t have insurance which would include a hit and run driver or who doesn’t have enough insurance to fully compensate you. One of the most common misconceptions that people have is that they think they’re only covered by their uninsured motorist policy when they’re involved in a car accident in their own car or in the covered car. That’s just simply not true, that’s not the case. If you’re walking across the street and you’re hit by a uninsured or under insured driver, your uninsured motorist coverage will apply. If you’re on a bicycle and a car hits you, your uninsured motorist coverage will apply. If you’re sitting on a sidewalk cafe and a car jumps the curve and causes you injury, your uninsured motorist coverage will apply. It applies not just when you’re in your car; it applies anytime another driver operating a motor vehicle causes you injury and damages.

(Attorney Reuben Donig specializes in personal injury law and premises liability, including auto and car accidents in San Mateo County, Santa Clara County, Alameda County and San Francisco County. Visit him at www.doniglaw.com if you have a question you’d like to ask).

Attorney Reuben Donig: Usually the answer is yes, at least to some extent. Your health insurance can come from one of many sources. It can be a legitimate third-party health plan. It can be through your employment under what’s called a self-funded plan authorized by ERISA, the Employment Retirement Income Security Act of 1976. It can be Medicare or Medi-Cal. Those are the typical insurance plans of one kind or another that people have, if they have insurance. Sometimes in automobile cases your own a automobile policy may have health insurance as an additional provision or benefit. You almost always do have to deal with, and reimburse the plan, at least to some extent. If it’s a third-party plan, such as a Blue Cross plan, or your own health insurance, they will usually accept a reduction for what’s called procurement cost. You will have to pay an attorney and the attorney will spend some money putting your case together, so what you end up with is maybe 60 to 65% of the total settlement.

You can use that procurement cost as an argument, as a legitimate argument, for a reason to reduce what you have to reimburse your health insurance company. So if you have $5,000 of medical pay under your auto policy and you collected it or they made payments on your behalf, you can usually get satisfaction with them by reimbursing them $2,500 to $3,000. Now, Medi-Cal has it’s own rules. Medicare has it’s own formulas, and if you happen to work for a company which established a self-funded plan, they write their own rules, and those are usually the toughest and most difficult ones to deal with. They want to get reimbursed usually a 100 cents on the dollar, regardless of whether you had to pay an attorney and incurred procuring cost, regardless of whether you didn’t get a 100% of your entitlement from the other side because you were partly at fault or they didn’t have enough insurance. A self-funded ERISA plan is usually the most difficult one to negotiate with. You usually have to pay them back in full, or pretty close to in full, or you have to have a very skillful and forceful attorney making the best arguments possible to get them to reduce that plan, and it’s best to get that argument out there and get some agreement with them as soon as possible. Don’t wait until your case is settled. They’ll never negotiate at that point.

(Reuben J. Donig practices personal injury law, including car accidents, auto accidents and premises liability in San Mateo County, Santa Clara County, Alameda County and San Mateo County).

San Mateo County Personal Injury Attorney Reuben Donig: Yes, and I’m going to expand that a little bit. What if you’re partly responsible for either causing the accident or causing your injuries, can you still make a claim? The answer is yes you can still make a claim, but to the extent that it’s determined that you, yourself, are partly at fault, the amount of your entitlement is reduced proportionately. So there are two different kinds of examples, and I’ll try to give them both here. Suppose there’s a collision and neither of you has a stop sign and you both collide in an intersection, and there’s no way of saying that either of you had the right of way. It appears as though both of you should have been more careful. You’re each 50% at fault. If you have, for example, a $100,000 claim, your entitlement in this situation will be $50,000. It’ll reduced by the 50% of your own contributory and comparative negligence.

But there’s another situation where you may have no fault in causing the accident. Suppose you are driving perfectly well, within the speed limit, doing everything correctly, and you’re involved in a car accident but you were not wearing your seat-belt, and you have multiple injuries. You are negligent not in causing the accident, but you’re negligent for not wearing a seat-belt, and to the extent that your injuries are caused by the fact that you weren’t wearing a seat-belt. Had you been wearing a seat-belt you wouldn’t have experienced those injuries. The other side has a very solid argument to make, that your comparative negligence for failing to wear a seat-belt deprives you of the right to make a claim for any of the economic or non-economic damages that are traceable to your injuries that were caused because of your not wearing the seat-belt. So to that extent, your entitlement will be reduced again.

(Attorney Reuben Donig specializes in personal injury law and premises liability, including auto and car accidents in San Mateo County, Santa Clara County, Alameda County and San Francisco County. Visit him at www.doniglaw.com if you have a question you’d like to ask).

San Mateo County Personal Injury Attorney Reuben Donig: The same losses are covered by your uninsured motorist policy as you are able to collect from the other side. You’re entitled to collect all of your economic and all of your non-economic damages. Economic damages means your past and future medical expenses, your past and future income losses, your past and future other out of pocket expenses, if you’re going to need long time healthcare or long time assisted living, if you’re going to need to have a maid as a result of being unable to take care of your house, or a gardener. All of these out of pocket expenses are damages, economic damages. And, you’re entitled to collect them from your uninsured motorist policy just the same as if you were making a claim against the driver who caused your injuries.

And, you’re also entitled to collect your non-economic damages. Your pain, your suffering, all of the reasonable compensation that will fully and appropriately compensate you for the harm, the non-economic harm, the unwelcome lifestyle changes, the pain that you have experienced and will experience, and the effect of those pains. If you lose the use of an arm, and you liked to play a musical instrument, the piano, and you can’t play it anymore, that’s a huge loss to a great component of your life. And, you’re entitled to be compensated for that. If you’re unable to sleep well at night due to pain; if you’re unable to be close or intimate with family members or your spouse; if you’re unable to socialize as before; if you’re unable to enjoy activities as before, recreational or do household chores. All of those things have to computed and calculated in some fair and reasonable fashion to compensate you for your non-economic damages. You are entitled to recover those economic damages from your uninsured motorist policy, so long as the amount of your claim does not exceed the policy limit that you’ve purchased.

Attorney Reuben Doing: It applies when you’ve been injured by a motorist who doesn’t have insurance which would include a hit and run driver or who doesn’t have enough insurance to fully compensate you. One of the most common misconceptions that people have is that they think they’re only covered by their uninsured motorist policy when they’re involved in a car accident in their own car or in the covered car. That’s just simply not true, that’s not the case. If you’re walking across the street and you’re hit by a uninsured or under insured driver, your uninsured motorist coverage will apply. If you’re on a bicycle and a car hits you, your uninsured motorist coverage will apply. If you’re sitting on a sidewalk cafe and a car jumps the curve and causes you injury, your uninsured motorist coverage will apply. It applies not just when you’re in your car; it applies anytime another driver operating a motor vehicle causes you injury and damages.

(Attorney Reuben Donig specializes in personal injury law and premises liability, including auto and car accidents in San Mateo County, Santa Clara County, Alameda County and San Francisco County. Visit him at www.doniglaw.com if you have a question you’d like to ask).

Video Transcription:

Interviewer: I’ve been in an accident where multiple parties were at fault. Can I choose whom to sue, or do I need to sue all of them?

Reuben J. Donig, Esq.: You don’t need to sue all of them. You can make the choice, but there are going to be repercussions with that choice. So, let’s put a spin on that question that really makes sense. Let’s say you’re driving in a… You’re a passenger in a car that your girlfriend is driving, and she’s involved in an accident with another motorist, and she’s partly at fault, and the other motorist is at fault, and you’ve been injured. And maybe you don’t want to sue your girlfriend. Okay? You only want to sue the other party.

Yes, you can make that choice, but understand that since there is comparative liability on your girlfriend’s part, you’re not going to be fully compensated by the other side, or the other side’s insurance company. They may owe you 100% of your economic damages, but they only owe you a proportional amount of your non-economic damages.

And also consider this, that even though you haven’t sued your girlfriend in that case, it’s most likely that the other side is going to file a cross complaint for indemnity and contribution against your girlfriend so that she does end up paying her proportionate share of your damages one way or the other.

 

(Attorney Reuben Donig specializes in personal injury law and premises liability, including auto and car accidents in San Mateo County, Santa Clara County, Alameda County and San Francisco County. Visit him at www.doniglaw.com if you have a question you’d like to ask).