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Personal Injury Attorney Reuben Donig: Most uninsured motorist policies cover the named insured. In other words, the person who owned a car, which has this automobile policy, which contains uninsured motorist coverage and everyone in that person’s family, all of their relatives who live in the household with the insured person. So let’s say mother and father own a car and they’re the named insured under the insurance policy. All of their children, all of their… If they have a brother or sister living there, even parent’s living in that same household with them, they’re all covered by that policy. Children who are away at school are covered by that policy. In addition, any time the insured car is being used, all of the occupants in that car are insured. They don’t have to be relatives, they don’t have to live in your household; anyone who’s in that car is also insured while they’re in the car or the car is being operated, even getting in and out of the car.

(Personal Injury Attorney Reuben J. Donig specializes in all types of personal injury cases, including auto / car accidents and premises liability, in San Mateo County, Santa Clara County, Alameda County and San Francisco County.).

San Mateo County Attorney Reuben J. Donig: Non-economic damages actually go by three different names. They all mean the same thing. Some people just call them pain and suffering. They’re also legally known as “general damages” or “non-economic damages”. And what they are is the amount… It’s a way to try to measure the amount of harm that a person has suffered as a result of their injuries that is not part of their economic damages, it’s not part of their out-of-pocket expenses, or cost, or medical expenses, or income loss, or other components of economic damages.

The law provides for compensation for non-economic damages as well as economic damages. And the concept is, if you can imagine that scale of justice that’s supposed to be in balance, if you have been injured by someone else, that balance is no longer equal. It’s out of balance, if you will. You have been harmed by financial losses for you medical expenses and income loss, but you’ve also been harmed by your pain and suffering, and the law says that the other side must give you compensation, must pay you money that is equal in someway, to the harm that you suffered to bring things back into balance. So let’s exclude for the moment the economic damages. You still have that pain and suffering, those non-economic damages. How much money will it take to compensate you for the harm that you’ve suffered? Well, what is pain and suffering? What does is it consist of? What are the elements?

Well, if somebody is hurt, it affects their overall life in many ways. Some people don’t sleep well at night because of the pain, and as a result of lack of sleep, they’re tired, they’re not as fully functional, their health may take a downturn. That’s part of the pain, and that’s part of the suffering. If a person is injured or loses a limb, they can no longer partake in certain activities that they used to partake in, some of which are necessary activities of daily living; being able to button your shirt, tie your tie, go shopping, do the laundry, take care of your family, take care of your children. Some of them are recreational activities; if you like to play the violin or the piano, or to play tennis or baseball, or go running or jogging, and you can’t do that anymore. That’s a loss to you of your life or lifestyle choices. It’s a loss of your freedom. If you have to rely on other people to drive you places because you can no longer drive or you can no longer use your legs, it’s a loss of your ability to make your own choices, how you want to live your life.

If you are unable to interact with your family as before, because you are tired or cranky or because you are hurt, you have a loss of what’s called “consortium”, or loss of the relationship with your family. Sometimes you’re unable to become intimate with a spouse or loved one. That’s called of the “loss of consortium”. There is compensation that you’re entitled to to bring that back into balance. You don’t enjoy life as before. You are not able to go out socially with your friends, sit through a movie, go out to dinner, go dancing. These are all things that you’ve lost as a result of your injuries that need to be compensated.

Occasionally you come across a situation where, maybe you were planning on going on a vacation and you had to cancel it. I’ve had cases where… I had a young woman whose grandmother lived in Hong Kong. Her grandmother was sick. She already had a plane ticket to go and visit her dying grandmother when my client got hit by a bus. She lost the ability to fly and see her grandmother that last time. Or another client who was badly injured and was tied down to a hospital bed while her mother, whom she had seen almost daily and who lived to be 97, died. She died while my client was in the hospital bed. My client was unable to spend that last night of her mother’s life by her mother’s bedside. Those are huge losses. They’re emotional losses that a person suffers as a result of their injuries, and those all need to be compensated for. Even though money doesn’t really compensate you, it’s the best that we have, and the law provides that monetary compensation must be given in an amount that is equal to the harm that was sustained or experienced by the injured person.

(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 quick answer to that question is ‘yes.’ You’re entitled to collect back from the party who caused your injuries, all of the medical expenses that were incurred, regardless of whether you paid it or your insurance company paid it, or in some cases, if it’s still due in owing. You’re entitled to get all of that. There is a concept called ‘lien’ or ‘subrogation’ where the insurance company who’s paid your medical expenses, whether it’s Medicare, or Medi-Cal or a private health insurance company, or even your own employee under a self funded ERISA plan has a right to get reimbursed. So, let’s say for example you have $10,000 in medical bills of which you paid $1000 out-of-pocket and your health insurance plan paid $9000. If the other party who caused your injuries is entirely at fault, they have to pay that full $10,000. You then may be charged with having to reimburse your plan from the $9,000 that you collect that represents money that they paid for your health care.

Now sometimes, under the right circumstances and in the hands of an attorney who understands the law and knows what he or she is doing, you can skillfully negotiate and reduce that hypothetical $9000 reimbursement that you have to pay. There are a number of legal reasons why you should be able to reduce it, and some of those are recognized in the California Civil Code. Some of those may have to do with the procurement cost of the $9,000 that you got back that represents money that your health insurance plan actually paid for your medical expenses, you had to pay an attorney and you had to pay an attorney and reimburse an attorney for cost. It could be 30%, 35%, 40%. So, that ought to be reduced from what you have to pay back to your plan.

Sometimes you don’t get full compensation from the party who caused your injuries either because they didn’t have the sufficient amount of insurance or wherewithal to pay you fully or because they weren’t entirely at fault, there may have been some comparative fault on your part or the part of some other party. So the money that you got from that party, both for your pain and suffering as well as for your economic losses, your medical expenses, your income loss and so forth, you didn’t get a ¢100 on the dollar. You didn’t get 100%. And that often can be used as a reason why you should be able to further reduce what you reimburse your health insurance plan.

Now, when they make that claim for reimbursement, they’re doing it under usually a provision in the policy which gives them the right to subrogation, or in the case of Medi-Cal or Medicare, their right is a legally found right in legislation, and they have what’s an even, a stronger right. It’s called a ‘lien.’ It’s more enforceable. It has more teeth in it than a mere subrogation claim which is a contractual agreement between yourself and your insurance company.

To get back to the question, can you collect the money that you incurred for your medical expenses even if you didn’t pay it, even if it was paid by your health insurance company? The answer is ‘yes.’ What you got from your health insurance company is called a ‘collateral source’ and collateral source is something that the party who caused your injury is not entitled to take advantage of.

(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: So, to some extent, the answer varies with the person. A person who’s a high-income earner will suffer more, at least income loss, if they’re injured, than somebody who’s a low-income earner, and therefore would need more insurance to compensate or make them whole. Having said that, I mean, we all know that the dollar doesn’t go as far as it used to. I think that anybody who is going to have uninsured motorist coverage, and I think everybody should have it, should try to have a minimum of $250,000 worth of uninsured motorist coverage. I used to tell people to get at least $100,000, but I don’t think $100,000 is very good anymore. Please get at least $250,000 worth of this coverage for yourself, and if you can afford to get more, then by all means get more.

I just settled a case for a woman who was hit by a driver who had a $15,000 policy, a wonderful older woman, 71 years old. She was walking across the street. It was entirely his fault. He only had $15,000 of insurance. She was in the hospital for weeks with many broken bones and surgeries. Fortunately, she had a $500,000 uninsured motorist policy, and I was able to get her the other $485,000 to bring her total up to the full $500,000 from her own policy. If she’d only had $100,000 or even $250,000 of uninsured motorist coverage that would have been the limit that she could of received. I think with the $500,000 recovery, she did pretty well.

(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: So let’s start with the assumption that it’s multiple other parties and that you yourself were not partly at fault or what we call comparatively or contributory negligence. If other parties caused the accident, multiple other parties caused the accident, there’s a concept called joint and several liability. Under the law as it now exists, any person who is at all responsible, even 1% at fault, for causing the accident and causing your injury, can be held 100% liable for your economic damages. That means your out of pocket losses, your past and future income losses, your past and future medical expenses. However, you also have compensation for non-economic damages, for pain and suffering, and that compensation is allocated. So if you have one party who’s 10% at fault and the other one who’s 90% at fault, and let’s say you peg your general damages, your pain and suffering at $100,000, those damages, the compensation for pain and suffering, will be apportioned between the parties who together joined to cause this accident in proportion to their degree at fault.

So, let me give you a specific example. Suppose you’re a passenger in a car and your friend is driving it and he’s speeding, and he goes through a green light but at 50 miles an hour in a 25 mile an hour zone. Somebody else runs a red light and causes the actual collision. Your injuries, to the extent that they’ve been enhanced by the excessive speed, are largely the fault of your friend who’s driving the car. And a jury or a person who’s making a decision will have to apportion how much of your pain and your suffering was caused by the fact that your friend was driving too fast, and those damages, if you wanna call it $100,000, will be allocated proportionately. Now you may also have $50,000 in medical expenses and income loss. Suppose your friend has plenty of insurance but the driver who caused this accident has only $15,000 of insurance, because those are economic damages, that $50,000, you can collect that from any party who’s at all at fault, so your friend’s insurance policy could conceivably pay the full $50,000.

(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: What is a contingency fee?

Atty. Donig: A contingency fee is an arrangement that a client enters into with an attorney, whereby the attorney’s right to be paid is contingent, dependent if you will, on the outcome. In other words, the attorney takes a risk. The client takes a bit of a risk, but the client goes into it knowing that if there is no successful outcome. If the case turns out to not have merit. If there is no financial result, he does not owe the attorney any money or any fee for the attorney’s time and effort spent on the case because the attorney’s right to get compensated is entirely contingent on getting a result.

Usually, a contingency fee specifies that if there is a positive result, the attorney will receive a fixed percentage of the either net or gross result. To that extent, different attorneys employ different contingency fees. Some charge a percentage of the gross, in other words, the total settlement amount or result. Some the net, in other words, after the costs of putting the case together have been reimbursed, a percentage of what’s left but it’s entirely dependent on there being a successful outcome.

I like the contingency fee because even though there are times when a very, very good result is obtained with relatively little time and effort on the part of the attorney, the client is in control. The client knows how much the client is going to receive and knows how much the attorney is going to receive, and if he thinks that it’s not fair, he can simply say, “I’m not going to accept that settlement. I want more.” So, the client has a great deal of input but if there’s a great result for the client, then the attorney is going to get a very good result for himself as well, usually, both sides are very happy.

I might say that if for some reason, the case doesn’t work out well, even though the client’s not going to be happy with the result, at least you are not ending up paying an attorney a lot of money for work that did not end up benefitting you.

San Mateo County Personal Injury Attorney Reuben Donig: So liability means that one side has the legal obligation to pay damages to the other. Usually, I would say, 80% to 90% of the cases, liability is created because of negligence. If somebody is negligent and causes an injury then they are liable because they were negligent and caused the injury. But sometimes there is liability even outside of negligence. Usually, that’s called strict liability. There are many instances where legally a person or entity will be liable to compensate you for your damages even though they were not negligent.

I would say the most common areas where that occurs would be an employer being liable even though the employer was not negligent when his employee was careless and caused an injury. So, the employer has liability and it’s strict, it’s called ‘vicarious liability’ because of the negligence of the employee. If somebody who’s working for me goes out on an errand for me during work hours, helping me out and causes a car accident where someone else is injured. I, as the employer, am vicariously liable even if I was careful in picking my employee and hiring him or her and thought that he or she was a good and careful driver.

There’s a concept of strict liability where the owner of a dog for example or any kind of an animal will be strictly liable if that animal causes injury under certain circumstances. In California, we have a dog bite statute. I can be the most careful person in the world, I can think I have the best dog, the best natured dog in the world but if my dog intentionally, or even my dog accidentally bites another person causing injury, I’m liable as a matter of law regardless of whether I’m negligent. If my dog gets in a dog fight with another dog and some person tries to break it up, my dog may not have intended to bite the person, and my dog may not have even started the dog fight but if a person is bitten that’s just part of the risk of being a dog owner, there’s strict liability.

In California, there’s no one free bite rule. If you own a dog and that dog bites another person, you are almost always strictly liable. You’d have to show that the person who was bitten actually provoked the dog and started a fight with the dog to avoid any liability on that. There’s strict liability if you have any kind of a wild animal in your house. If you wanna have a pet tiger or pet chimpanzee, if that animal injures somebody there’s strict liability.

By the way, getting back to dogs for a second, don’t confuse the bite issue with what sometimes happen when a dog runs around without a leash on. They sometimes will trip or injure a person without causing a bite, that’s different than the strict liability, however. There’s no complete strict liability. Usually, you have to show a violation of leash laws.

There’s strict liability in the area of products. A bottle of Coke may explode and cause serious injury. You might have gotten that bottle of Coke from a local Safeway, but they didn’t manufacture the bottle, they didn’t put the Coca-Cola in the bottle, that happened at a bottling factory and the Coca-Cola may have been manufactured somewhere else and the bottle somewhere else, and it could have gone through a chain of distribution until it got to that Safeway store. But the law of product liability is that every person in the chain of distribution, from the time the original defect occurs in the product, by design or by the way it’s manufactured, from that point on every distributor, manufacturer, wholesaler, middleman, middle-woman, retailer, they’re all considered strictly liable and whoever is the handy target, whoever’s the deep pocket is an entity that can be named and has liability to reimburse you.

So strict liability is usually the other alternate to negligence to create liability. Parents would be strictly liable for certain kinds of conduct of their children regardless of whether they were careful or not. People who let their car be used by other people regardless of whether they’re careful or careless, they’re automatically strictly liable up to $15,000 dollars per person, $30,000 dollars aggregate in California if a person who’s using their car, a permissive user, causes injury to somebody else. So those are just a few examples of where you can have liability even if you don’t have negligence.

(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: So uninsured motorist coverage is part of an automobile policy, and what it basically provides is a benefit whereby if you’re injured by someone else, some other motorist who does not have insurance, a hit-and-run driver, or someone who just is driving a car without insurance, or who does not have enough insurance to fully compensate you, your own automobile insurance policy promises that they will compensate you under your uninsured or under-insured motorist policy for all of the damage, for all of the harm, that the driver who caused your injuries owed you, up to the amount of the policy limit that you purchased, in effect, your own insurance company acts as though it insured the driver who caused your injuries.

(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: A lien is a legal device for securing reimbursement or repayment of a debt. And usually in the context of a personal injury case, they arise when you either owe money unconditionally or in some cases conditionally to someone who secures their right to get reimbursed by placing a lien against your financial recovery. Let me give a few specific examples. You may not have any health insurance and no ability to get treatment for your injuries. You may find a doctor who’s willing to treat you but then says, “I want a lien against your recovery so that when your case is finalized, I will get paid from the financial settlement.” That would be one kind of a lien. You have to sign something. Your attorney should sign it as well, securing the doctor’s right to get reimbursed or repaid from your financial recovery.

Liens or sometimes they’re subrogation, they’re slightly different but very similar animals, often, as a matter of fact, usually arise in the context of personal injury cases with regard to the health insurance payments that were made by your health insurance provider whether it was a health insurance plan offered by such as Blue Cross or Etna or Blue Shield, or you receive Medicare or Medi-Cal benefits, or if your employer offers health insurance as a benefit under a self-funded plan, the language of the policy or the plan or by legislation, Medi-Cal or Medicare, they have a right to get reimbursed, a legal right to get reimbursed from your recovery from the party who caused your injuries and those plans or rights to get repaid are either called ‘subrogation rights’ or ‘lien rights’, and those are examples of liens, particularly Medicare, Medi-Cal, or an ERISA self-funded plan are in the fullest legal extent, they are liens. What your health insurance has a right to get paid back technically it’s not a lien, it’s a subrogation claim. There are subtle differences but they’re very technical.

(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 J. Donig: Your automobile insurance company must offer you a minimum of $30,000 per person per accident of uninsured motorist coverage. Now there are a couple of exceptions. If your own liability policy, the amount that you purchased to protect other people from your negligence, if it’s less than $30,000, it could be $25,000 or it could be as low as $15,000 per person per incident, then your automobile insurance company only needs to offer you uninsured motorist coverage in an amount equal to your liability coverage. Other than that, if you have liability coverage of $30,000 or more, your insurance company must give you at least $30,000 of uninsured motorist coverage. There’s one more exception. If, for whatever reason, because you wanna save a few nickels or dollars, you voluntarily in writing allow your automobile insurance company to give you less than your $30,000 of uninsured motorist coverage or to eliminate it entirely, then if you’ve done that in writing, they can withdraw uninsured motorist coverage or give you a lower amount.

(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).