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Call Them Evil; Lose the Money – Insurance Policy Exclusions for Crime

Posted on by Matt Hamilton

Calling Them Evil Will Cost you Money:  Invalidating the Insurance Policy by Pleading Intentional Conduct

The victim of a personal injury accident must be careful about representing that the person that harmed them was intentionally evil, or intended to harm them.  That kind of representation can activate an insurance policy exclusion and make the policy inapplicable to the accident.

Ensuring an insurance policy applies is a critical advantage of hiring a personal injury, accident lawyer.  That lawyer can walk the tightrope between maximizing the fault of the person that hurt you (the tortfeasor), and maximizing damages (the amount of money you get) by focusing your claims of clear fault, lack of comparative fault, punitive damages, and insurance bad faith.

Why spend time focusing on fault when the case facts are clear?  The benefit is that clear, intentional fault tends to “bleed over” into damages, and tends to increase the value of the claim.  What is the risk?   There is a dark-side disadvantage to any claim of clear fault.  Pressing the fault advantage, too far, can activate an insurance exclusion and end the money available to the claim.

Our Example – A Motor Vehicle Accident

Shane Johnson is a 26-year-old man living in Raymore, Missouri.  He visited with some friends at a tavern off Main Street in Belton, Missouri.  He had six drinks, all mixed with whiskey.  It was 9:00p.m on a Thursday.  Shane was driving home on 58 Highway eastbound from Belton to Raymore.

Jennifer Miller is a 37-year-old, healthy, married, mother of two young children from Harrisonville, Missouri.  She works in Belton.  She is a nurse at a senior living center.  She is driving home from work.  She is headed towards Interstate 49 in Belton, Missouri, and plans to drive south into Harrisonville.

Shane Johnson, driving, weaves in his lane, crosses over into the left lane, and collides into a Ford F-150 truck driven by Mrs. Jennifer Miller.

The collision pushes Mrs. Miller’s Ford F-150 truck to the left, off the north side of 58 Highway, and into the clear zone near the Belton Target store.  Jennifer Miller’s truck strikes a light pole at 40 miles per hour.  The Belton’s Police and emergency ambulance respond to the accident scene.

Our Example – The Arrest

DUI test

Shane Johnson was tested using field sobriety techniques by the Belton Police Department at the scene of this car accident.  After leaving the car accident scene, Mr. Johnson was tested with an Intoxalyzer 5000 breathalyzer machine at the Belton Police Department.  Shane blew a .18 blood alcohol content (B.A.C.), more than double the legal limit.  Shane was arrested under suspicion of driving while intoxicated.  Mr. Johnson was given tickets for Belton Municipal Court for careless and imprudent driving, driving while intoxicated (DWI, a second offense), and failing to keep a proper lane.

Our Example – Criminal Court

Shane Johnson hired a criminal defense lawyer for his Belton Municipal Court traffic tickets.  The lawyer was able to keep Mr. Johnson out of prison.  Shane avoided a felony charge for causing serious injury to Jennifer Miller while driving under the influence of alcohol (RSMo. 558.011 & 565.052).  His criminal defense lawyer saved his driver’s license.  However, Shane Johnson pled guilty in Belton Municipal Court, was convicted, and his record showed his driving while intoxicated (DWI), and careless and imprudent driving convictions.

Our Example – The Injury

femur xrayJennifer Miller suffered a comminuted, oblique fracture to her femur (a broken leg), and several crushed foot bones.  Namely, Mrs. Miller had crushed the cuboid, and first, and third metatarsals in her right foot.  The comminuted, oblique, leg fracture indicates it was not a straight across fracture but that her leg bone was broken in multiple pieces.

Our Example – Medical Treatment

Mrs. Miller was initially treated at Belton Research Hospital.  She had follow-up care at Saint Luke’s East Hospital in Lee’s Summit, Missouri.  Her medical treatment included an orthopedic surgeon.  That surgeon performed an ORIF surgery (Open Reduction Internal Fixation) of the fracture of the femur in her right leg (a break in the biggest leg bone).  Metal screws and plates were “fixed” to keep her femur, leg bone together.  Mrs. Miller took prescription medications.  Mrs. Miller had follow-up physical therapy in Belton, Missouri.  She saw her primary care physician.

Our Example – Chronic Pain

The aftermath: Jennifer Miller suffers chronic problems in spite of the large effort she undertook to recover from her broken leg and broken foot.  Mrs. Miller suffers complications by way of chronic knee pain (caused by nerve damage).  She has chronic ankle pain from her broken foot bones.  She has had to overcome a bone infection known as osteomyelitis.  This has increased her medical treatment bills.  It has increased her recovery time.  She has chronic pain.

In Comes the Accident Lawyer

Mrs. Miller, as a victim of a motor vehicle accident, hired a personal injury lawyer skilled in Belton car accidents.  His job was to help with the claim.  The accident lawyer investigated.  He gathered evidence.  He submitted a detailed demand letter to Mr. Johnson’s insurer for his policy limits.

Why the Insurance Company Denied Her Claim

Mr. Shane Johnson had an insurance policy that featured a common policy clause.  That clause reads that “bodily injury or property damage intended by, or reasonably expected to result from the intentional or criminal acts or admissions of an insured person, shall be excluded by this policy.”  Exclusion policy clauses like this apply irrespective of whether the insured person was actually charged with, or convicted of a crime.

In this case, Mr. Shane Johnson was indeed charged with, and convicted of the crimes of driving while intoxicated, and careless and imprudent driving.  The insurance policy exclusion specifically stated it precluded coverage for all insured persons, even if the person seeking coverage did not participate in the intentional or criminal act.

The insurance company denied Jennifer Miller’s claim.  The insurer stated there is no policy money to give, because the policy did not apply, because Shane Johnson had acted intentionally and criminally.

The Law on Criminal Act Insurance Policy Exclusions

An insurance company, in Missouri, has a duty to defend an insured whenever there is a potential or possible liability to pay, based upon the facts known at the outset of the case.  The duty to defend is not dependent upon the probable liability to pay, or based upon facts ascertained only through trial.  It is from the initial facts.  McCormick Baron Mgmt. Servs., Inc. v. Amer. Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999).

An insurance company does not have a duty to defend a lawsuit; where the petition (or initial claim), upon its face, alleges a set of facts which fail to bring the case within the coverage of its policy.  Train Wreck West, Inc. v. Burlington Ins. Co., 235 S.W.3d 33, 42 (Mo. App. E.D. 2007).

Merely mentioning the word “negligence” does not trigger the duty to defend or pay a claim.  Instead, the duty to defend, or pay an insurance claim, arises from the actual factual allegations presented through the demand letter, or investigation by the insurer.  If that demand letter, or investigation demonstrates intentional conduct, an insurance exclusion may apply. See Allen v. Continental W. Ins. Co., No. ED 99111, 2013 WL 1803476, * 6 (Mo. App. E.D. 2013).  In our case, the claim of Jennifer Miller revealed facts of intentional, criminal conduct by Shane Johnson, which could activate the criminal and intentional act exclusion of his car insurance policy.

The Law Does Not Allow People to Insure for their Intentional Crimes

“Missouri courts have consistently held that an insured’s intentional infliction of damage … cannot be covered by liability insurance.”  Easley v. Am. Family Mut. Ins. Co., 847 S.W.2d 811, 812 (Mo. App. W.D. 1992).  “Permitting an insured to insure himself against his wanton, reckless, or willful acts would enable him to insure himself from bearing the consequences of his intentional acts and would therefore, be contrary to public policy.” Easley, 847 S.W.2d at 812.  In other words, an insurer is not liable for an insured’s conduct when the insured acted volitionally and within intent to injure.  See State Farm Fire & Cas. Co. v. Caley, 936 S.W.2d 250, 253 (Mo. App. W.D. 1997).  What is more, under this case, intentional conduct cannot later be characterized by the victim or their attorney as negligence merely because the damage resulted was greater than or different then what was intended by the insured.  Thus, Shane Johnson cannot say he did not intend to harm Jennifer Miller and did not intend to injury her so severely and therefore his conduct was not intentional or criminal.  It is the act itself, rather than the consequences of the action, which determines insurance applicability.

No Insurance Duty to Defend or Pay for Crime

Under these circumstances, the insurer of the person that harmed Jennifer Miller was under no duty to defend him or pay the claim resulting from the Belton car accident he caused.  Shane Johnson’s actions were intentional, criminal conduct.  He admitted the criminal nature of his conduct by pleading guilty in Belton Municipal Court.  Res judicata applied, as his intentional conduct was solidified by his conviction in criminal court.  Thus, the insurance provided no claim money based upon the applicability of the intentional act exclusion under Shane’s insurance policy.

What To Do: Avoid the Policy Exclusion For Intentional Conduct

The best personal injury lawyer for a car accident should successfully avoid the criminal act insurance exclusion problem.  The first step is to recognize the issue.  Then, one must prepare in advance.  At each stage of the investigation; the demand letter, the pleadings, and evidence presented, the facts should be framed to make the person that caused the injury look negligent, but not criminal.  You make them look evil; you may lose all the money.

A competent car accident lawyer will begin by framing his demand letter by using the Missouri Approved Instructions for a jury verdict.  This demand letter language, and the evidence supporting it will emphasize the negligence claims and not overtly claim intentional conduct.  The accident lawyer should frame the guilty plea as a guilty plea to negligence.  He should frame the conviction as deciding the issue of negligence.  Under Missouri law, ambiguities in an insurance policy are interpreted to benefit coverage and to avoid exclusions.

Your In-Court Pleadings Should Allege Negligence and Not Intentional Crime

It is often the case that negotiations will not successfully settle a personal injury car accident.  A lawsuit will need to be filed.  A pleading called a “Petition for Damages” will need to be prepared and filed with the court.  Your Petition will set out the ways in which the person (here, Shane Johnson) was neglectful in his driving and failed to drive as a very careful person with the highest degree of care (which is Missouri’s standard).

The Petition for Damages should not focus on intentional conduct.  It should not focus on a crime or the conviction.  The deposition of each witness should follow a similar strategy.  A deposition, which is a formal, on the record, under oath recording of the person’s testimony, will occur.  That deposition should focus on the neglectful and careless acts of the defendant, but not focus on intentional or criminal conduct.

Walking to the Precipice with Punitive Damages

Punitive damages often are and should be pled and pursued in a case.  Punitive damage claims with an underlying criminal act insurance clause does require a very skilled personal injury lawyer.  Punitive damages are damages at or above the amount actually suffered by the victim.  They are additional damages to be paid, in part, to the victim to punish the bad acts of the person who harmed them.  The policy supporting punitive damages aims to detour other persons from engaging in evil conduct in the future.  Punitive damages help society.

 The Test to Prove Punitive Damages

The test for punitive damages in Missouri requires clear and convincing proof of culpable mental state.  Drury v Missouri Youth Soccer Association, 259 S.W.3d 558, 573 (Mo. App. 2008).  The standard to prove punitive damages is very close to the standard to prove intentional, criminal conduct.  The law requires a conclusion that the defendant had an “evil motive.”  Davis v. Chatter Inc., 270 S.W.3d 471, 480 (Mo. App. WD 2008).  The test is to show either that the defendant committed an intentional, wanton, willful, and outrageous act without justification, or acted with reckless disregard for the victim’s rights and interests.”  Calus v Intrigue Hotels, LLC, 328 S.W.3d 777, 783 (Mo. App. W.D. 2010).  One can see how the facts needed to prove a punitive damages claim mirror the facts to exclude insurance through intentional, criminal conduct.  “Threading this needle” may take the skills of the best personal injury lawyer for a car accident.  It should be planned for in advance, in great specificity.

An Example – Suing O.J. Simpson for Murder

One may remember from the early 1990’s; O.J. Simpson was accused of murdering his wife and her male companion.  A trial resulted which ended in OJ’s acquittal on criminal charges.  Fewer people know that a later civil case was filed against OJ Simpson by the wrongful death class of the victims’ heirs.  This wrongful death civil case did not allege O.J. Simpson intentionally, criminally killed the two people.  Instead the claim pulled back a bit.  The wrongful death class asserted reckless conduct.  A large settlement was paid.  This is an example of careful pleading in the light of criminal act insurance exclusions.

What to do?

Most personal injury and wrongful death claims will not involve actions so egregious as to give rise to the potential for an insurance exclusion for intentional or criminal conduct.  However; crimes occur.  People harm intentionally.  Bad people purposely injure, even kill others.

Those harms need to be compensated.  Victim damages must be recouped.  Families need to be helped.  In these situations, one must not merely charge ahead and paint the person who did the harm as evil and intentionally acting.  Care should be taken to plan the path to achieve the end result you wish.  The goal should not be revenge.  The goal should be successfully winning compensation, using the legal system to avoid these pitfalls.  Begin with the end in mind.

Matt Hamilton

  • Juris Doctor
  • Trial Lawyer

Dying on the Vine – How & When to Renew Your Judgments Before It is Too Late!

Posted on by Matt Hamilton

The Death of Your Claim – How to Preserve or Lose Your Judgment at the Ten Year Mark

It is wrong to presume that once you receive your judgment, it will be good forever; and if one cannot collect through insurance, or garnishment, or a judgment lien now, then one merely has to wait, and eventually your judgment will have to be paid.  This is wrong.  Missouri law, like the laws of many jurisdictions, presumes a judgment is satisfied and paid in full after a period of ten years.  This is irrespective of whether the judgment debtor made payments.  A Motion to Revive Judgment will be needed.

 THE TEN YEAR LIMIT APPLIES TO ANY JUDGMENT – FOR HERE, LET US USE A CAR CRASH

A Lee’s Summit rear-end auto accident happened on May 1, 2009.  John, the negligent driver, was driving his 2007 Ford F-150 pickup truck south on Missouri State Route (Highway) 291 just past Hy-Vee grocery store through the stoplight at Langsdale Road in Lee’s Summit.  He ran that stoplight.  John collided with the rear of the Honda Civic driven by Molly as she was turning left from Langsdale onto 291 Highway.  Molly suffered severe injuries to her back including a compression fracture of her C1 vertebrae and a herniated disc at the L5-S1 level in her lower lumbar spine.  Molly was taken by ambulance and treated at Saint Luke’s East hospital in Lee’s Summit.  Her orthopedic surgeon diagnosed the L5-S1 disc herniation and treated her neck C-1 compression fracture.  Molly went through physical therapy, in Lee’s Summit for her auto collision injuries.

JUDGMENT FAULT DOES NOT MATTER REGARDING THE TEN-YEAR DEADLINE

John received a ticket from Lee’s Summit Municipal Court for careless and imprudent driving.  He did not hire a criminal defense lawyer but rather pled guilty and was convicted of this 4-point offense.  John’s Lee’s Summit ticket conviction acted as an admission of fault for the motor vehicle accident.

LAWSUITS ARE SOMETIMES NEEDED EVEN WHEN ACCIDENT FAULT APPEARS CERTAIN

Molly sought money compensation for her Lee’s Summit accident injuries from John.  Molly hired Lee’s Summit personal injury lawyer Matt Hamilton.  John was assigned a defense lawyer by his auto insurance company.  Fault was denied in spite of the Lee’s Summit Municipal Court conviction.  The insurance defense lawyer also alleged Molly was comparatively at fault for turning left too slow.  The defense lawyer argued her auto accident damages should be reduced by her percentage of fault, even though John was the cause of the car crash.  The insurer refused to pay Molly’s reasonable damages prior to a lawsuit.  Molly was forced to sue John in the Circuit Court of Jackson County at Independence, where Lee’s Summit auto accidents are filed.

THE JUDGMENT

The lawsuit proceeded to judgment. Molly and her personal injury attorney won a $650,000.00 judgment against John, with a finding john was 100% the person who caused the Lee’s Summit collision.

The verdict was handed down October 10, 2009.  It was determined that John had failed to pay his auto accident insurance prior to the car crash and the insurance company had properly ended his coverage.  John was uninsured at the time of the auto collision.  John made three payments to Molly in November 2009, December 2009, and January 2010.  Afterwards, John stopped making any payments on the verdict against him.  Molly attempted to garnish John’s wages and collect against his insurer, to no avail.

TEN YEARS IS FROM THE DATE OF JUDGMENT AND NOT SOME OTHER EVENT

The judgment sat until October 1, 2019.  At that time, Molly made a motion to revive the judgment.  Molly properly preserved her judgment.  Let us presume, however, that she waited until October 20, 2019, ten tears and ten days post Judgment.  Molly argued to the court that more than ten years had elapsed since the judgment.  It has been less than ten years since payments were made by John.  Who is right?  Can Molly revive her judgment and collect against John?  Is John right and the judgment is now dead?

MISSOURI LAW ON REVIVING JUDGMENTS

Section 516.350 of the Revised Statutes of Missouri governs the revival of judgments.  It indicates any judgment against a person (or entity) must be revived within ten years of its creation.  The Court of Appeals in Unified CCR Partners v. Abright No. ED106082, 2018 WL295711 (Mo.App June 12, 2018) recounted the law in this matter.  In order to revive a judgment, a party who receives the judgment may file a motion to “revive the judgment” within ten years of either the date of the judgment itself, or the date of the last revival.  This was also expressed in Dummett v. Koster, 446 SW 3d 732, 734-35 (Mo. App. 2014).  The important part is that the motion to revive must be filed within ten years of the Judgment or within ten years of the date of the last revival itself (if more than twenty years).  The date of the last payment does not matter.

TEN YEARS IS FROM THE DATE OF THE JUDGMENT ITSELF

With respect to a second revival, there is presumption that the initial motion for the revival of it had been filed within ten years of the original judgment in order to use subsequent payment by the judgment debtor as a revival benchmark date.  The important factor is that the initial motion for the revival must be filed within ten years of the exact judgment date, in this instance October 10, 2009.  Thus, Molly can revive her judgment against John if she files a Motion to Revive before October 10, 2019 and Molly cannot revive her Judgment is she files later than the ten-year mark.  I would not wait to argue about thirty-day periods for Judgments to become final.

MISSOURI SUPREME COURT CIVIL RULES BACK UP THE HARD TEN-YEAR DEADLINE

Missouri Rule of Civil Procedure 74.09 also matters in this analysis.  It does not provide for a payment to be considered in the calculation of a time for the revival of a judgment, even in a Lee’s Summit auto accident case.  It states that “a judgment may be revived by order of the court pursuant to a motion for a revival filed by judgment creditor within ten years after the entry of the judgment or the last prior revival of the judgment.”  Rule 74.09 (a).  A trial court would not be abusing its discretion in denying that motion for revival.

A MOTION ALONE SHOULD BE ENOUGH

The plain language of Rule 74.09 requires that a party seeking a revival of their judgment, for example in a Lee’s Summit auto accident case, only needs to file a motion to revive the judgment and has to do nothing more within ten years of the judgment date itself.  Abbott v. Abbott, Missouri Court of Appeals Western District case number 76525, 2013; reveals that arguments to the contrary have already been rejected by the courts in Wright Industries, Inc. v. New England Propellers Service, Inc., 881 SW 2d 243 (Mo. App. WD 1994).  The court in Young Electric Sign Co. v. Duchell Furniture of Arizona, Inc., 9 SW 3d 685, 687 (Mo. App. 1999) reached a similar conclusion.  There is no due diligence requirement upon the party making a motion to revive its judgment if it done within the ten year period.  If that motion is made in a timely manner, the circuit court is obligated to issue the order to show cause to revive the judgment.  This is merely a ministerial duty of the circuit court. It does not affect the timeliness of the revival, and does not require judgment upon the court itself.

Thus, in our case, Molly must have filed her motion to revive her judgment on or before October 10, 2019.  Otherwise, she no longer has a valid judgment that can be enforced because she failed to do so within a timely manner irrespective of when John made his payments to her resulting from his Lee’s Summit motor vehicle collision.

Are you interested in the legal details, history, and other jurisdictions related to Revival of Judgments?

A good article written by Michael Scott, titled Renewal and Revival of Judgments was written in 2006, and published as part of a collection and creditors’ right course by the Bar Association of Texas.  It is more technical, and detailed than a practical legal practitioner should expect to need.  However, detail battles come up from time to time, and it is helpful to know the most, so as to use that knowledge, when it is needed.  I think the article is a good source, should your need arise.

Author:

Matt Hamilton

  • Juris Doctor
  • Trial Lawyer

5 Reasons NOT to Have an Attorney for an Auto Accident

Posted on by Matt Hamilton

FIVE REASONS NOT TO HAVE AN ATTORNEY FOR AN AUTO ACCIDENT

Opinions vary as much as people vary when it comes to whether to hire a lawyer after you have an auto accident.  This article explains five reasons why one may choose not to hire a lawyer for their auto accident case.

No. # 1 – PROPERTY DAMAGE ONLY

Most auto accidents do not involve personal injury, thankfully.  Also, most insurance companies have separate divisions called “property casualty” divisions.  Property Casualty Divisions tend to be more reasonable in giving money to settle property damage claims.  Even in injury cases, one will typically have two different insurance adjusters.  One adjuster will handle the property side.  Another adjuster will handle the injury side.

A property damage only case is more likely to garner a reasonable offer for property reimbursement.  Thus, you may not need a lawyer if your auto collision caused only property damage and the insurer offers reasonable compensation.

How to Learn the Reasonable Value for your Vehicle

It is common to have a discrepancy over the value of a vehicle if it has been “totaled.”  Know that insurance companies are sophisticated in their car value evaluations.  Do not expect to get full value for your vehicle.  A reasonable value (not full) will be a success.  This is because insurers know it will cost you time, effort, stress, and money to fight them over vehicle value.  You may very well find yourself in the unpleasant position of taking less than your car is worth because it will cost you more money to get a reasonable insurance offer.

Remember that Kelly Blue Book valuations (www.kbb.com) may overstate the value of a car.  The insurance adjuster and industry “gold standard” is the “black book” of the NADA, also known as the National Automobile Dealers’ Association.  This “black book” is rather expensive.  However, its website www.nada.com provides free valuations.

Is the insurance company paying less for property damage than the full amount of insurance available?  Is there also a serious injury?  In these cases, not hiring attorney could lose you money.  A clever attorney may even be able to get the full amount of insurance on the property value case by combining the claims for both injury and property damage.  This is one method to maximize the reasonable value of your case.

No. # 2 – WHAT IS THE INJURY?

Medical Bill Amounts

Many cases do not need a lawyer if injuries are small or pre-existing.  First, look to the medical bill amounts.  Medical bill amounts totaling less than $5,000 often do not justify the hiring of a contingency fee or hourly lawyer.  This is because the potential settlement amount is so small that one may spend more money paying the attorney than the handling it on one’s own.  Almost always, a dedicated injury attorney will win you a higher amount in settlement.  However, a case with small medical bills may not justify that attorney’s fee.  Remember, it’s about the total amount in the end that you are getting.  It’s not about the total amount of your settlement.

Injury Type – No Lawyer

Exactly what is the injury?  Sore backs, strained necks, and headaches are the most common injuries reported after collisions.  These typically resolve after eight weeks of activity.  Physical therapy is common.  Anti-inflammatory pain medication is common.  These common injuries tend not to produce high case values because juries do not award large judgments at trial.

This type of injury, alone, (even with medical expenses exceeding $5,000 to $10,000), may not require the services of a lawyer.  This is again an issue of economics.  If your case value is low, paying an attorney 33 to 50 percent of the case value may not be worth the investment.

Injury Type – Yes Lawyer

Other types of injury necessitate attorney involvement.  For example, amputations and broken bones often do not cost much and medical bills are low.  However, they can be valuable cases.  Such cases also are so complex as to need the professional services of a lawyer.  In short, typical injuries that resolve on their own often do not require an attorney.  Permanent injury or disability typically does point to hiring an attorney.

No. #3 – HAS THE INSURER MADE A REASONABLE OFFER?

It is less common nowadays.  However, there are still some reasonable insurance companies.  There are still reasonable insurance adjusters.  You, as the victim, need to make a judgment based upon the offer, if any, from the insurance adjuster.  If the offer is reasonable and makes you happy; take the money and be happy. There is no need to hire a lawyer.

You can call an injury accident lawyer and ask his opinion as to the value.  It may surprise you that they will give an honest answer.  Remember, every attorney wants happy clients.  No one wants to waste money and be of no service.  If the offer pays for your property damage and medical bills, you may wish to take it.

No. # 4 – WHERE DID THE ACCIDENT OCCUR?

People in different parts of the country think differently.  So too, the laws in different parts of the country reflect those peoples’ attitudes and are different.  Some places are conservative.  Some places are liberal.  Injury accident values vary considerably based upon location.  If one has an accident in a highly conservative area where injury values are low, they may not want to hire a lawyer but keep what little money is offered for themselves.  Other areas tend to provide more reasonable results.  Full value will then require the expertise of an attorney and justifies the expense.

How can you determine if your accident location is good?  My best advice is to call an injury accident lawyer from your particular jurisdiction and ask.  It won’t take more than an hour of your time to call three lawyers and ask their opinions as to the value.  You will then have an opinion population and can make a judgment on your own.

NO. #5 – HOW MUCH TIME AND STRESS DO YOU WANT TO EXPEND MANAGING YOUR CLAIM?

We all spend our lives confronting and solving new problems.  Anything you are an expert at means that at some point you were a rookie and knew nothing … but learned.  Do you enjoy tackling new problems?  Do you want to learn a complex new area?  Are you willing to take the risk?  How busy is your life presently?

Some people will enjoy the challenge.  Other people will want to delegate the work because their priorities are elsewhere.  This involves your decision whether to hire a lawyer.  If you want to take the risk and get the satisfaction of handling the claim yourself, you should do so.  If you would rather delegate to an expert for the cost of the expert, do that.  One way or the other, you will have to live with your decision.  The decision of when not to hire an accident lawyer will be your opinion and your opinion is the only opinion that really matters.

Author:

reading law bookMatt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

Accident Compensation for Reduced Ability to Become Pregnant [Lawyer Tutorial]

Posted on by Matt Hamilton

HOW TO WIN COMPENSATION WHEN AN ACCIDENT REDUCES YOUR ABILITY TO GET PREGNANT

The least visible injuries too often cause the greatest harm.  This is an unfortunate fact.  For example, an accident reducing the happy prospect of a future child is worse than a broken arm, or a cut leg.  Unfortunately, our legal and medical systems do a poor job of dealing with these serious injuries; injuries that reduce fertility.  This article teaches a manner of overcoming and winning compensation for the diminished ability to get pregnant.

Injury accidents cause severe changes in lifestyle and physical ability.

  • Accident injuries can cause a lengthy time period where the body undergoes great stress.
  • Disability reduces the ability to exercise.
  • Treatment can alter diet.
  • Medications alter your physiological condition.

Injury can Harm Fertility:  Any number of these factors can reduce the ability of a female victim to become pregnant.  Weight gain can alter menstrual cycles. Pharmaceutical drugs can negatively affect fertility.  Many injuries have the side effect of diminishing ovulation and other reproductive cycles.  Doctors, lawyers, and insurance adjusters often don’t think of this harm.  However, for a family, planning a child, this can be the single most important aspect going on in their lives.

No one would want to take a child away from someone and replace it with disability, pain, and medical treatment.  Unfortunately, this is too often the case.  To make matters worse, compensation is difficult to win through lawsuits if the courts do not allow physician testimony of the reduced ability to become pregnant.

There is a way to overcome the legal barriers.

First, a great accident lawyer will educate the court that the reduced ability to become pregnant is present in the “pleadings.”  This means that in his original petition for damages or complaint, the injury accident lawyer actually writes as an item of damages the reduced pregnancy disability.  This will allow an initial relevance finding by the court.

For example, the following courts have made similar rulings.

There are many Continuing Legal Education programs that teach how to create continuity of your pleadings from the beginning of the case until trial.  It is easy for the accident injury lawyer to get lulled into complacency and fail to do this.  True, each case is unique and has novel evidence.  However, most cases overlap with their concepts of fault, injury, and evidentiary concerns.  Most cases do not require lawyers to build the habit of a consistent case theme.  However, this should ALWAYS be on the list of things to do.

Remaining consistent in pleadings is especially important when the accident lawyer anticipates bringing an unusual claim, like fertility loss (reduced chance of pregnancy) as an item of damages.  This should be an ongoing theme among the pleadings, so your judge may more easily remember the case and be motivated to learn its merits.  A Trial Brief is not enough.  Start with your Petition for Damages, then include the concepts in injury interrogatories, requests for the production of documents, requests for admissions, motions in limine, and so on.  Ask questions about the fertility-loss theme in depositions, even when the witness does not directly have information on fertility-loss.  Remember, your case is about what your case spends time being about!

Second, the lawyer needs to gain an expert opinion from a treating physician (or recognized medical expert) as to the reduction of pregnancy possibility.  The relatively unknown, but instructive case of McKersie v. Barnes Hospital, 912 S.W. 2d 562 (Mo. App. 1995) is educational on this topic.  In McKersie, the Missouri Court of Appeals considered a victim who had an accident.  The accident reduced the victim’s ability to get pregnant.  Ms. McKersie was treated in an emergency room by an intern.  That intern was negligent and failed to diagnosis her appendicitis.  As a result, Ms. McKersie’s appendix ruptured.  This required her right ovary and her Fallopian tube to be removed.  Her appendix was also removed.

Her treating physician gave testimony that her lack of a right ovary and Fallopian tube reduced her statistical chance of reproducing and having a child.  The problem was that Ms. McKersie was still capable of having a child.  Indeed, her physician indicated that it was still “more likely than not” that she was capable of conceiving, in spite of her accident disability.  Nothing indicated an “extra problem” as to conceiving a child.

Still, Ms. McKersie sought money for compensation for the damage of reducing her ability to conceive.  The court agreed.  Her treating physician’s opinion was sufficient to support an item of future damages to Ms. McKersie.  Even though she was still more likely than not capable of having more children, Dr. Swartz’s testimony that her ability was diminished due to the loss of her ovary and Fallopian tube could be presented to the jury as an item of damages she suffered from this accident malpractice.

What You Should Do:  So too, in your case, the reduced statistical likelihood of conceiving can and should be an item of damages you claim.  It is harm you have suffered.  The mental stress will be certain; irrespective of whether you become pregnant.  The life stress will be certain; irrespective of whether you become pregnant.  So too, your reduced chance of pregnancy should be compensated.

reading law bookAuthor:  Matt Hamilton

of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

 

How a Business can be Sued for the Criminal Acts of a Non-Employee

Posted on by Matt Hamilton

How Can a Business be Sued for Criminal Acts by a Non-Employee?

Pedestrian Hit by a Car in a Parking Lot

It is Saturday night. Robert owns a local coffee shop.  This coffee shop is a building and a parking lot next to a crowded street.  Young people like to congregate and socialize in its parking lot Saturday nights.

Bob’s Coffee Shop tolerates the people hanging out in its parking lot.  Perhaps Bob remembers when he was young.  Perhaps it increases his customer base.  Perhaps Bob is simply busy with the running of the business and tolerates their presence, having fun on his coffee shop property.

The kids like to stand around and socialize.  Others “hot rod” through the parking lot.  They speed; they play chicken; some even drive drunk.

One Saturday night is particularly busy.  There are a number of people hanging out in the parking lot.  Others are showing off driving through, speeding, drinking, and driving.  A young girl gets hit by one of the drivers.  Can the victim hire an auto accident lawyer to sue Bob for failing to kick the drivers or pedestrians out of his parking lot?

The General Rule; the Owner Cannot be Sued.

The general legal rule is that business owners do not have a duty to protect their invitees from the criminal acts of third parties. See Posecai v. Wal-Mart Stores, 752 So.2d 762 (La. 1999); Sturbridge Partners, Ltd., et al. v. Walker, 267 Ga. 785, (1997).

Owners do not generally have a duty protect their people on their property from the negligence of others who do not work for them or represent them.  Burnett v. Stagner Hotel Court, Inc., 821 F.Supp. 678, 682 (N.D. Ga. 1993). There is an exception.

The “special facts and circumstances” exception that creates business liability.

A business owner can be liable to a victim on his property even when the perpetrator had nothing to do with the business owner.

The special facts and circumstances exception applies with the following test:

  1. Is the perpetrator a third party? (Not the business itself or one of its agents)
  2. Is the perpetrator known to be violent? Did the person behave in a way that indicated danger was on the premises?
  3. Did the business owner have sufficient time to prevent an injury?

Ali Aziz v. Jack in the Box, 477 S.W.3d 98 (Mo. App. 2015).

Foreseeability is the Key

Foreseeability

Our Supreme Court has spoken about this issue.  The “touchstone for the creation of a duty is foreseeability.”  Madden v. C & K Barbeque Carry-out, Inc., 758 S.W.2d 59, 62 (Mo. 1988).  It’s all about the facts of the situation. Is there a foreseeable likelihood that failing to act will cause harm?  Then you likely have a duty.

Can the business owner anticipate that acting in the way that he does will cause injury?  Then there is duty.  In Aziz, there was a fight in a parking lot and Jack in the Box was held $20.5 million dollars liable for the resulting harm.

In another case, an innocent victim was raped in a gas station parking lot by an unknown person.  The court and the jury found the circumstances created a dangerous situation for the victim that the gas station owners could have fixed.  Instead, the owners did nothing and she suffered great harm.  Richardson v. QuikTrip Corp., 81 S.W.3d 54 (Mo.App. W.D. 2002).

Do We Actually Need To Know About The Threat?

Actual notice of a specific threat is not a requirement to be held liable for accident injuries on property.  There is only the requirement that someone (a third party; not connected with the business) acts in a way that indicates a danger on the business owner’s property and that also there is sufficient time to prevent that injury.

Does The Danger Always Have To Be To The Actual Victim?

The law refers to these people as “invitees.”  These are people who come to the property because the business invites the public generally.  They may also come with a specific expectation of some benefit by being on the business owner’s property.  We are talking more about customers and less about burglars.

The anticipated risk of injury does not have to be to the actual victim that winds up getting hurt.  The victim merely needs to be in the class of people or the type-of-person who is put at risk.

Referring to our example of Bob’s Coffee Shop, the crowd generally was at risk for being hit by an automobile and creating a pedestrian auto accident.  It is not necessary for the victim to have been there a long time or acted in a particular way.  This is more about a duty of care to prevent an injury by a known danger or a danger that could have been revealed by an adequate inspection.  The victim does not need to actually enter the business.  They do not actually have to complete a transaction. Aziz, 477 S.W.3d 98.

Conclusion

Pedestrian auto accidents are some of the most harmful events caused by cars.  The victims do not have the benefit of the protection of seat-belts and roll cages or airbags.  Business owners need to be mindful of all types of injury on their premises and not merely turn a blind eye because they are not the direct perpetrator.  If they do, they may find themselves with a personal injury lawsuit and claim against them.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

Bibliography:

Jessica Agnelly, Court Analyzes Business Owner’s Duty Owed to Invitees from Criminal Acts of Third Parties, Mo. Trial Atty., 16 (Winter 2016).  https://www.matanet.org/

Sean Martin & Allison Carr, Are You as Guilty as the Criminal? Liability for Criminal Acts of Third Parties and Employees, FDCC Winter Meeting (2014).  http://www.thefederation.org/documents/01.Are%20You%20as%20Guilty.pdf

 

What are Litigation Costs for Accident Injury Cases [Explained]

Posted on by Matt Hamilton

EXPLAINED: LITIGATION COSTS IN ACCIDENT INJURY CASES

Accident Victims hire injury lawyers on a contingency fee, typically.  As part of the attorney-client contract, something called “litigation costs” is mentioned.  The client pays for this amount at the conclusion of their case, and should see the litigation costs itemized on their final paper breakdown.

This article explains:

  1. What litigation costs are,
  2. Why litigation costs are required,
  3. What common costs amount to, and
  4. Why litigation costs are necessity.

Rules 77.01 and 77.05 of the Supreme Court of Missouri dictate who pays for attorney’s fees.  Typically, it is the party that loses at trial.  These rules have been codified in Mo. Rev. Stat. § 514.070 and 514.260 of the Revised Statutes of Missouri.

Courts have also interpreted the litigation cost rule.  For example, the Western District of Missouri in the case Baker v. Whitaker, 887 S.W.2d 664 (Mo.App. W.D. 1994) ruled that expenses should be deducted before the lawyer’s share is allocated.

What does this mean to you?  This means when you are signing the litigation contingency fee agreement, it should contain a sentence indicating that you, (the client) will pay the litigation costs.

In practice, this means attorney’s fees are deducted first.  Then, the litigation costs are paid for.  Then, the remaining amount is paid to the client (you).  This is the presumption.  However, contingency fees can be negotiated and worded into other arrangements.

WHAT ARE INCLUDED IN LITIGATION COSTS?

There are several categories of costs that are included as litigation expenses.  Rules 57.10 & 57.03 (g) are examples of civil procedure rules that govern these costs.  They include:

  1. Expert Fees
  2. Deposition and Court Reporter Costs
  3. Filing fees from the Court
  4. Witness fees (requiring witnesses to show)
  5. Copying Costs (making duplicate documents)
  6. Exhibits
  7. Miscellaneous expenses

While some litigation costs are inexpensive (filing fees) others can be extremely expensive (experts).

LITIGATION COSTS ARE ON THE RISE

 

WHAT ARE COMMON LITIGATION COST AMOUNTS?

Small cases should expect hundreds of dollars before litigation in litigation expenses.  After litigation begins, it becomes thousands of dollars.  If multiple experts are required and trials included, litigation costs can exceed $100,000 for a case.

I encourage you to ask your accident attorney how they break down litigation costs, what you will pay for, what the attorney will pay for, and the amounts the lawyer expects.  Any competent attorney should be able to discuss litigation costs in detail with you.  Do not expect much leeway regarding changing who will pay for litigation costs, what they will be and the amount.  This is often outside of the control of the attorney.

Author:  Matt Hamilton

  • Trial Lawyer
  • Juris Doctor

Kansas City Bicycle Accidents Expected to Rise

Posted on by Matt Hamilton

THE ENDURING PROBLEMS OF CARS HITTING BICYCLISTS

You are speeding down a curving hill on your bicycle.  You sense the wind against your body.  The sweat on your back and the exhilaration of the exercise rewards your effort.  You are not encased in a glass and steel protective shield, like a motorist.  You are exposed.  You are in the environment; experiencing its virtues, its sites, smells, and feel.  Bicycling is different than riding in a vehicle.  That’s the problem.

Bicycle Accidents, Easier and Worse

Bicycles are smaller than vehicles.  They often blend into the environment and are missed by otherwise well-meaning drivers.  Bicycles are not protected by collision barriers like in vehicles.  Bicycle accidents injuries are worse, even deadly.

A common accident occurs when a bicycle is traveling through an intersection.  The cyclist is going directly ahead.  The bicyclist is then struck by a car driver making a left turn without yielding to the bicyclist.  The vehicle owner has a dented car and scraped paint.  The bicyclist is in an emergency room, then to the orthopedic surgeon, or worse.

The law protects bicyclists from such mishaps.  However, the public has been hesitant to learn and pay attention to the dangers.  This problem is likely to worsen.

Bike Trails; a Fun Addition that Increases Bicycle Accident Rates

Kansas City bicycle accident lawyers expect an increase in car-bicycle accidents.  Across the country, cities like Lee’s Summit are adding bicycle trails and lanes to encourage exercise and economic development.  More bicycles on the road will mean more bicycle accident victims.

Missouri is also increasing recreational bike trails.  For example, Missouri just added a statewide Missouri bike trail known as the “Katie Trail.”  The Katy trail crisscrosses towns, rural areas, and major interstates.  Car drivers unaccustomed to yielding to a bicyclist may not be paying attention.  The bicyclist may be distracted because of the long trail.  Even extreme efforts to lessen accidents are never full proof and bicycle accident injuries occur.

Bias Against Bicycle Victims

Police departments in investigating bicycle accidents often do not even cite the striking vehicle with a traffic ticket.  The infrequency of bicycle accidents leads to a lack of education for all law enforcement officers.  Nearly everyone drives.  Not everyone bicycles.  It is easy to understand the bias.

Society views also color bicycle-car accident claims.  We often view people riding bicycles from the prospective of children.  It’s common for people to ride a bicycle throughout their childhood.  We all remember some of the dangerous and reckless behavior that caused us skinned elbows, knees, and the occasional bump on the head.  It’s easy for people to translate that experience to the present, and blame law abiding, traffic obeying adults on properly equipped bicycles.  It is convenient to blame a car bicycle accident on a child, presuming the child’s inexperience caused the collision.

It’s important for us all to remember these mental preferences when we hear about a car striking a bicyclist.  It’s important for us to enact, implement, and keep in mind the increased prevalence of bicyclist on the road.  None of us want to put an innocent person in the hospital, or the grave.

Author:

Meeting with clientMatt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Posted on by Matt Hamilton

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Amputation cases, especially where a prosthetic is needed, present unique legal problems.  The amputee may presume the cost of future medical treatment is a certainty.  This is far from the truth.  A number of problems may rob the accident victim of their ability to pay for future prosthetic costs and other medical treatment.  This article teaches ways to overcome medical physician testimony problems.

Treating physicians often tell an amputee victims that the accident was certainly the cause of their injury. The Doctors will say they will “back them up” with whatever help they may need.  Once the lawsuit starts, and insurance companies ask questions, the doctors retreat.  Their testimony can even be harmful.  The primary method is the doctor appearing to support the patient; but in reality the Doctor’s testimony harms their patient’s legal needs.

Physician Failure to Understand the Legal Standard

The problem is the standard to get testimony into evidence in court.  Courts have requirements called “foundation.”  A witness may “say” something; but if what the witness says does not have a foundation, the jury or judge will not consider (or even hear) it.

Mixing “Certainty” up with “Reasonable Medical Certainty”

With physicians, this is the “reasonable medical certainty” standard.  For example, in Missouri, the Supreme Court ordered in cases like Swartz v. Gail Webb Transportation Corporation, 215 S.W. 3d 127, 130 (Mo. banc 2007), admissible evidence must be “to a reasonable degree of medical certainty.” This means it must be “more likely than not” or greater than 50% likely.

Herein lies the problem.  Physicians will quaff that they cannot say with absolute certainty or cannot be accurate in predicting what a patient will suffer or need in the future and therefore cannot say with certainty.  This will mean their testimony does not get into evidence and the amputee victim loses.

Dr. Jonas Rappeport, MD, wrote a lengthy article about physician uncertainty and legal testimony in 1985.  Reasonable Medical Certainty, Bull. Am. Acad. of Psychiatric Law, Vol. 13, No. 1, 1985.  In that article, Dr. Rappeport called the American legal standard a “legal fiction” and void of any practical meaning for physicians.  In essence, if a doctor cannot meet this legal standard, he is saying nothing at all.

Passive Qualifying Words

A second problem is physicians that give opinions, saying words like “might,” or “possibly,” or “could.”  Again, these are not opinions to “a reasonable degree of medical certainty” and may be excluded by a trial judge.  A Missouri court as early as 1965 addressed this.

The Court in Bertram, v. Wunning, 385 S.W. 2d 803 (Mo. App. 1965) considered the standard.  Herein, the court indicated that expressions like could, might, or possibly are common instances of language used by experts in the field.  The court recognized that as long as the physician indicates his opinions are to a reasonable degree of medical certainty, even though the physician may use qualifying language, the testimony is admissible.  Thus, the first problem with physician uncertainty is overcome.

The Uncertain Future of the Patient

A second problem is the uncertainty of future medical treatment or repercussions.  Doctors helping amputation victims cannot see the future.  Future treatment or negative outcomes may be dependent upon events that do not occur.  This second problem is physicians saying this may not occur unless one or two or three other events happen.  Therefore, they give the opinion they cannot say to a reasonable degree of certainty because they do not know the certainty of these future events.  This challenge can also be overcome.

Events that May Only Occur if Something Else Happens

The Missouri Supreme Court in the case of Bynote v. National Supermarkets, Incorporated, 891 S.W. 2d 117, 124-25 (Mo. banc 1995) addressed this issue.  The court ruled that evidence of future treatments and even its costs may be admitted before a trial court or jury.  The evidence can “come in” even when the medical treatment would be dependent upon the outcome of other events, such as more conservative medical treatment.

In Bynote, the court considered a victim that would only need the additional treatment, if they later began suffering a locked back.  Surgery was possible but not recommended by the treating physician.  Still, it was admissible as a possible future consequence.

The Missouri Supreme Court in the case of Breeding v. Dotson Trailer Repair, 679 S.W. 2d 281, 283 (Mo. banc 1984) considered a case where the patient did not want the surgery.  In Breeding, the accident victim testified they did not want surgery.  Furthermore, the victim’s physician indicated surgery would only be needed if and only if conservative treatment failed.  Still, since surgery was a possibility given future events, it was admitted.

This was later expanded in the case of Emery v. Wal-Mart Stores Incorporated, 976 S.W.2d 439 (Mo. App. 1998).

These are two ways in which uncertain physician testimony can be admitted so that an amputee can receive compensation for future treatment, even when it is uncertain or dependent upon other factors.

Look to other materials on our page for Amputation Lawyers and personal injury claims.

Author:

Matt Hamilton

  • Trial Lawyer
  • Juris Doctor

 

When Should I Lie to My Lawyer?

Posted on by Matt Hamilton

Trial attorney Matt Hamilton explains the reasons, advantages, disadvantages, and issues that arise from the common occurrence of a client who lies to their own attorney.

The common reasons are explained.  The repercussions of the lies on litigation, and case value are explored.

This is a good investment of time for any victim considering telling a lie to their lawyer.  It is good knowledge for any attorney practicing in wrongful death, personal injury, or criminal defense; basically, any field where client interaction is high and the stakes are great.

Matt Hamilton

  • Juris Doctor
  • Trial Attorney

6 Silly Things People Do in Court

Posted on by Matt Hamilton

Personal injury trial attorney Matt Hamilton teaches the six silliest mistakes he sees people make in court.

Matt explains each mistake, why the error harms the person’s chances in court, and how each mistake can be avoided, or corrected.

Author:

Matt Hamilton

  • Trial Attorney
  • Juris Doctor

10 Unexpected Ways You Increase Your Chances of Getting a Speeding Ticket

Posted on by Matt Hamilton

10 Unexpected Ways You Increase Your Chances of Getting a Speeding Ticket

As a traffic ticket lawyer, every week brings work to keep a speeding tickets off a client’s driving record, criminal record, and keep points off of their license.  We either personally speed as we drive, or are surrounded by those who speed.  Yet, how much do we know about this most-common of driving vices?  Seven recent studies shed light on speeding, revealing fun, unexpected, and useful insight.  This article reveals the analysis of the combination, and illustrates the essence of the findings.

Here are ten ways speeding tickets are influenced.

FACT #1 There Actually Is an Ideal Speed to Drive

What is the ideal speed to get to your destination as fast as possible but avoid being ticketed?  Many drivers ask themselves this.  A huge recent study analyzed speeding tickets across locations.  The study reveals surprising speed results.

The most ticketed speeds are as follows:

  1. 15 miles per hour over equals 310,000 tickets
  2. 14 miles per hour over equals 150,000 tickets
  3. 16 miles per hour over equals 134,000 tickets
  4. 10 miles per hour over equals 77,000 tickets
  5. 9 miles per hour over equals 8,703 tickets

In short, it appears 9 miles per hour over is the sweet spot.

Keep it Under Nine!

Only 3% of speeding tickets are written for those driving 1 to 9 mph over.

Note:  A second study revealed the most common speeding ticket speed is 12 mph over, rather than 15mph over.

FACT #2 What Kind of Vehicle You Drive Matters

Some vehicles are targeted for speeding tickets more than others.

The biggest targets, most likely to be ticked for speeding are as follows:

  1. Mercedes Benz SL class = +404% more likely to get a speeding ticket
  2. Toyota Camry Solara = +350% more likely to get a speeding ticket
  3. Hyundai Scion TC = +343% more likely to get a speeding ticket

The vehicles least likely to get a speeding ticket are as follows:

  1. Jaguar XJ Sedan – 89% less likely to get a speeding ticket
  2. Chevrolet Suburban SUV – 84% less likely to get a speeding ticket
  3. Buick Park Avenue Sedan – 89% less likely to get a speeding ticket

FACT #3 Day of the Month Matter … A Lot!

What are the top days to get traffic tickets?

One surprising find is a large statistical difference in the number of traffic tickets issued when looking at the days of the month.  The top days to get a speeding ticket are as follows:

  1. The 31st
  2. The 30th
  3. The 1st
  4. The 28th
  5. The 11th

The last days of the month have a very large increase in the number of speeding tickets issued.  It appears the end of month ticket writing splurge, spills over to the 1st day of the next month.  No explanation for this is known.

What are the days you are least likely to receive a speeding ticket?

There is a large statistical drop in the chances of receiving a speeding ticket on the following days:

  1. The 10th
  2. The 25th
  3. The 12th
  4. The 14th
  5. The 19th

The reason for this precipitous speeding ticket drop is unknown.  However, it is both statistically significant and short lived.  You are, as a percentage, more than twice as likely to get a speeding ticket on the 28th day of month versus the 10th day of the month.

FACT #4 Time of Day Matters. 

The most common times to receive speeding tickets are between 9:00 and 10:00 a.m. and 1:00 and 3:00 p.m.

Anecdotal evidence implies it is easier for the police to pull people over during this time period.  It is easier for the police to distinguish vehicles and their speed either after or before rush hour.

FACT #5 Sex Matters

Traffic ticket police officers are also more likely to target certain types of individuals.  The Bureau of Justice Statistics for Insurance Institute for Highway Safety did a study of two million speeding tickets.  The results were as follows:

  1. Men are 62.6% of speeding tickets
  2. Women are 37.4% of speeding tickets

Gender matters.  Another study reveals that men are 50% more likely to get a speeding ticket, regardless of age, versus women.

FACT #6 Age Matters

Age is also a factor.  Sorry young adults; the most ticketed ages are as follows:

  1. 20 years old is 80,000 speeding tickets
  2. 21 years old is 76,000 speeding tickets
  3. 19 years old is 74,575 speeding tickets

Youth matters.  One third of all speeding tickets are issued to those 16 and 26 years old.

FACT #7 Having a Good  Job in a Largely Educated Town Helps

It is found that speeding ticket rates are lower in towns with high levels of unemployment, with a large population of residents employed in professional fields.

FACT #8 Don’t Be a “Outsider” or You Will Get “Hometowned”

People speeding with out-of-town license plates are more likely to get a ticket than local residents.  Explanations for this trend are that:

  1. Out of towners are less likely to contest a ticket
  2. Out of towners are less likely to antagonize through local voting and residence meetings

FACT #9 Avoid Any City that Recently Passed a Speeding Ticket Related Law

A large recent study analyzed whether recent passages of traffic laws of cities affect the rate of traffic ticket citations given.  Some cities passed laws increasing fine amounts, or speeding changes.  This means your chances of getting a ticket can be based more on whether the city passed a recent law regarding tickets versus factors such as:

It was found that your chances of receiving a speeding ticket in a city rather than just a warning go up by 28% in cities that have recently passed speeding ticket laws regarding revenue.  More speeding ticket revenue laws mean more speeding ticket issuing police.

Critics of this technique point out that this merely an example of voters passing on their own tax burden and local expenditure costs on to non-voters and non-residents.  It; however, remains legal.

An example of legal speeding ticket “fundraising” exists in a 2016 law passed by Providence, Rhode Island.  After the law, 12,193 speeding tickets were issued in the first 33 days under the new law.  The law related to a new school zone camera program.  These 12,000+ speeding tickets were issued between January 16th and February 22nd under the new law.  Over $370,000.00 in revenue was raised.  The city plans to increase rather than decrease this ticket rate.

FACT #10 Do Not Double Down on This List!

An out-of-town license plate plus traffic revenue laws matter even more!  The most likely increase chance for you getting a speeding ticket is speeding in a city that recently passed a revenue-based traffic ticket law combined with having an out-of-town, or out-of-state license plate.  Such a combination increases your chance of getting a speeding ticket versus a warning by 37%.  This is compared to other drivers stopped by the same police for the same speed.

Summary

  • Speed 9 mph over
  • in a Buick Park Avenue
  • on the 10th of the month
  • between 10am and 1pm
  • as a woman
  • over 22 year’s old
  • with a professional job
  • in that town

Author:

Matt Hamilton

 

  • Juris Doctor
  • Trial Attorney

 

SOURCES:

  1. Makowsky, Michael D. and Stratmann, Thomas, Political Economy at Any Speed: What Determines Traffic Citations? The American Economic Review, Vol. 99, No. 1, pp. 509-527 (March 2009).
  2. Chevalier, Judith, Welcome Stranger. Here’s a Speeding Ticket (New York Times, September 2, 2007) (Dr. Chevalier is a Professor of Economics at the Yale School of Management).
  3. Montgomery, David and Carson, Sophie, We analyzed 224,915 Minnesota speeding tickets. See what we learned (Pioneer Press, August 11, 2017)
  4. Days you’re most likely to get a ticket, AVVO (https://www.avvo.com/traffic-ticket-fines)
  5. Traffic Stops, Bureau of Justice Statistics, (https://www.bjs.gov/index.cfm?tid=702&ty=tp), a study of over two million traffic tickets.
  6. McGowan, Dan, Providence issues 12,000 speed camera tickets in 33 days, (WPRI-TV, February 28, 2018)
  7. What Factors Make You More Likely to get a Speeding Ticket? (CBS News September 2, 2017)

Are You Over Paying for your Accident Lawyer? [Analysis of Fees]

Posted on by Matt Hamilton

HOW MUCH SHOULD YOUR ACCIDENT LAWYER COST?

We have to pay for things every day.  Plumbing breaks.  Electricity fizzles in houses.  Luckily, most of us do not experience frequent injury accidents.  Handling injury accidents requires the expertise of an injury accident lawyer.  Accident attorneys do not volunteer, but are paid.  This article informs on how these lawyers are paid, the amounts, what is, and what is not reasonable.

THE OPTIONS: CONTINGENCY FEE VS. ATTORNEY FEE AWARDS VS. HOURLY

The Hourly Rate Method of Paying a Lawyer

There are three main ways on which attorneys are paid.  The most common is an hourly rate.  Hourly rates are determined by the amount per hour the attorney charges and the amount of time he spends.  The more he works, the more you pay.  Hourly attorneys will keep detailed records of exactly what they are doing and how long they are spending on a particular task.  You should receive a monthly statement.  That monthly statement will indicate the hourly rate and break down (typically in six minute intervals) what the attorney was doing and why he was doing it.

Rates for attorneys vary between $150 per hour and $500 per hour.  How much an attorney charges hourly is based entirely upon what people will pay for his services.  Shopping around can save significant money here.  However, remember, the best attorneys are paid more for a reason.  It is often financially better to hire the more expensive attorney and get the better result.

Remember also, you are paying the attorney for keeping close track of his time, which will be included in the hourly fee.  Hourly pay is common for attorneys and clients who regularly work together.  It is common for an hourly attorney to require a “retainer; an amount of money paid in advance to put towards the hourly fee.

Paying through an Attorney’s Fee Award Case

Sometimes you do not have to directly pay the lawyer at all.  Certain types of cases (like vexatious refusal to pay by insurance) carry with them awards of attorney fees.  This means at the end of the case, if you win, the other side pays for your attorney’s fees.

One would want to check with their particular jurisdiction and particular case type to determine whether an attorney’s fee awards can be expected.  Few cases invoke statutes where attorney’s fees are mandated.

You should be able to understand the contract your own lawyer gives you.  The vast majority of contingency fee lawyers contracts are pages long, with lots of fine print.  Many have “tiered” results, with different payment amounts being paid based upon how far the legal claim proceeds.  This, however, is unnecessary.  For example, the contingency fee contracts my offices uses for personal injury and wrongful death cases, contains ONLY the following language:

I, We, _____________, hereby employ Matt Hamilton, Hamilton & Associates, Lawyers as my attorney to represent me in my claim against _________________, and all other persons considered liable by said attorney for personal injuries sustained by me on the ______ day of ________.  It is agreed that said attorney shall receive ______ percent of whatever is realized on said claim for his services.  Client agrees to pay for expenses incurred in pursuing the claim.  Signed ______________. 

Sometimes, simpler is better.

The British System Versus the American System of Paying Lawyers

There is an old philosophical difference between British law and American law.  In the British model, the losing side always pays for the other person’s attorney’s fees.  In the American model, typically each party (whether they win or lose) pays for their own attorney’s fees.  The American model is preferred because it gives an advantage to the ordinary person who is the victim. Often, corporations will pay tens or hundreds of thousands of dollars to their attorney.  This would mean that a person simply could not afford to take the risk of suing a large corporation and incur that level of expense under the British model.

Paying the Lawyers through a Contingency Fee

The contingency fee is the most common reimbursement for accident injury lawsuits.  The contingency fee is governed by state law.  In it, the attorney takes a percentage of the win; however large or small that may be.  The attorney takes a considerable risk by fronting the expenses.  He advances his efforts in hopes of winning.  If the case loses, the attorney gets nothing, and loses his cost and time.  If the case wins, the attorney gets a generous reward.  Each attorney must take multiple cases in order to justify the risk of being paid through a contingency fee.

Complaints About High Pay Low Effort Contingency Fees

Sometimes clients complain about the generosity of contingency fee versus the amount of time their attorney has spent on it.  This attitude presumes all cases will win.  It also does not take in account the risks and efforts of the attorney.  Lastly, there is the considerable time, training, and monetary investment for the attorney to get his skills to the level to allow for victory.

Contingency Fees are Sometimes Prohibited

Rule 4-1.5 (c) and Rule 4-1.5 (d) of the Supreme Court of Missouri prohibits contingency fees in certain types of cases.  For example, family law and divorce cases cannot have contingency fees.

How Long is the Attorney Required to Work on a Contingency Fee Case?

The Supreme Court of Missouri in the case of In re Crews, 159 S.W. 3d 355 (Mo. 2005)  speaks to this issue.  The Supreme Court of Missouri ruled that it is presumed in an attorney contingency fee agreement that the attorney must represent that party through judgment.

This means if an appeal should be attempted after a judgment, a separate agreement should be reached.  Naturally, contingency fee agreements are creatures of contract.  The parties can agree to whatever specifics they may want if it expressed in the contract.

When is an Attorney’s Fee Unfair?

The Missouri Supreme Court in the case of Murphy v. Dalton, 314 S.W. 2d 726, 733 (Mo. 1958), spoke to the issue of fairness in contingency fee contracts.  These include injury cases and accident cases.  In Murphy, the Supreme Court ordered that every contingency fee contract must be viewed from the point and time and under the circumstances of the parties at the time of the execution of the contract.  This means if circumstances later change, that does not matter.  If certainty or uncertainty change later on that is not taken into account.

Neither the attorney nor the client can view in retrospect (after the fact) regarding the success or failure of the case to determine whether the contingency fee is reasonable.  For example, if both parties are expecting long and drawn out litigation, a jury trial, and perhaps even an appeal, and signed a large contingency fee, the attorney cannot later complain.  On the opposite side of the scale, if the case settles after a simple one page demand letter, the client can no longer complain.  If ten years or fifteen years of litigation ensues and hundreds of thousands of dollars in expenses are incurred the attorney cannot later complain that he should have been paid more.  The reasonableness of a contingency fee is taken at the time that the paper is signed.

WHAT ARE TYPICAL CONTINGENCY FEE AMOUNTS?

Like stairs, contingency fee amounts typically go up in steps.

Thirty Three Percent (33%) Contingency Fees

 A one third contingency fee was once common and nearly ubiquitous. Almost all accident and injury lawsuits were signed up for a one third contingency fee.  This was through the mid-90s.  The philosophy was that one third went to the lawyer, one third went to the victim, and one third paid for past medical and other expenses.

In practice, this was never true.  Some cases had large values and required small amounts of work.  Other cases presented large amounts of work and small value.  “Tort Reform” in the early 2000s vastly increased the cost of doing litigation and increased the cost of making claims for innocent victims.  Many attorneys went out of business.  The surviving law firms had to change, adapt, and improve, just to make less money.  The cost of bringing lawsuits increased substantially.  More experts are now needed.  This requires greater expenses.  One third contingency fees are still common.  However, do not expect to get that amount as an offer from the attorney.  Those are only when competition is high or the value of the case is high with little work.

Forty Percent (40%) Contingency Fees

Forty percent of the total take on the case (not counting expenses) is common nowadays.  This accounts for the increased cost and expertise needed to be victorious in litigation.

Forty Five Percent (45%) Contingency Fees and Higher

Contingency fee agreements where the attorney takes forty-five percent or more of the take are uncommon.  Typically, one will see this in strict product liability product defect cases and manufacturing defect cases.  Medical malpractice and other professional liability cases also can carry contingency fee agreements of this high percentage.  These higher fees are to offset the increased litigation costs (sometimes hundreds of thousands of dollars) and the risky of the case.

WHY SHOULD I PAY SO MUCH FOR A CONTINGENCY FEE LAWYER?

There is an old expression as a joke for divorces.  The joke goes; “Why are divorces so expensive?  Because they are worth it.”  The opposite is true (with the same rational) in contingency fee cases.  Simply put, the client gets more money at the end of the case, does less work, and has fewer headaches on average with a competent contingency fee lawyer working on their case compared to handling it on their own.  High priced contingency fee lawyers tend to get better results and tend to get more money for their clients.  In short, contingency fees are expensive because they are worth the investment.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

Five Reasons Why Insurance Companies Do Not Fairly Pay Accident Claims

Posted on by Matt Hamilton

FIVE REASONS WHY INSURANCE COMPANIES DO NOT FAIRLY PAY ACCIDENT CLAIMS

You always do the right thing when making decisions, right?  You are always fair minded and generous to people who are less powerful and in a vulnerable position, right?  People are generally decent, right?  Why is it, then, that insurance companies employing otherwise reasonable, fair-minded people do not give fair-minded value to the claims of innocent victims?  This article reveals five reasons why systematic undervaluing of insurance cases occurs.

  1. A MONEY MAKING ENTERPRISE

An overlooked motivating factor for low payouts on injury cases is our capitalist system for the insurance company.  Corporations are entities, even referred to at times as “persons.”  Insurance company corporations have one goal above all others:  to make the maximum amount of money for their owners.  Their owners are (typically) stock owners who pay money for stock shares and expect more money in return by way of dividends or increased stock value.  From the executive desk of the president down to common employees, this money motivating factor colors all decisions of businesses.  Insurance companies are no exception.

Insurance companies make money by charging their customers premiums.  They also make money from investing the money that is given to them and making dividends or profits on that money.  Insurers maximize profit by minimizing their expenses.  Paying money for insurance claims is a large expense of an insurance company.  The less that is paid out, the more money for their owners (the stockholders).

Insurance companies will deny paying more in payouts when the investment market is expected to do a down turn versus when money is to be made. However, in our experience, insurance companies do pay out differently for tax reasons, market force reasons, and investment timing.  One way or the other, capitalism, money, and timing influence the fair value by which insurers assess to your case.

  1. INSURER DELAY MEANS INSURER MONEY

You may notice the larger the insurance claim, the more time, procrastination, and delay the victim will experience.  This is no coincidence.  Remember, insurance companies do not handle just your claim.  Insurers handle tens or thousands of claims at any one time.  With any large population, emergencies for some claimants will occur.  Financial troubles will crop up for some claimants.  Some claimants merely drop out because of exhaustion.  This means that the longer an insurance company can delay a claim, the more people will drop out for various reasons that are personal to each person.

Even claimants that do not drop out, may take less than the full value of their case for similar personal reasons.  Some people merely get into a situation where they are desperate for money and will take whatever is offered.  The longer the delay, the more likely this is.

We talked in reason number one (above) about how insurers make money from investments.  Remember, the longer the delay in paying you, the more time the insurance company has to invest the money that the insurer would have otherwise given you.  Simply put, delay pays.

  1. THE DIFFUSION OF RESPONSIBILITY

We all feel guilt and negative emotions over decisions which harm others.  Nobody wants to be the “bad guy.”  We all like to point to the other person and say they are the “bad guy.”  Others will say they simply were one piece in the cog of a big machine and did not make the final decision.  This diffusion of responsibility is the genesis of many injustices perpetrated by insurance companies.

Remember, it is often the case that insurance claims are handled by many people.  If not just one person makes a bad decision; it is a group decision.  Guilt is diffused and can be blamed on others.  The executive office can order managers who can then blame the executives.  The managers can order employees who can then blame the managers.  Employees are large in number and can blame each other.  One way or the other, if no one person is at fault, no one person bears all the guilt.  This diffusion of responsibility is one way in which innocent victims with the insurance claims suffer further injustice through an unfair evaluation or a complete failure to pay a rightful claim.

Natural Selection in favor of Unfair Insurance Employees

Please also note there is a natural selection issue with respect to insurance companies.  Each employee will have employment responsibilities and guidelines.  It is often the case that an employee gets better evaluations and a superior work relationship when the employee makes more money for their corporation.

Employees that lose money for their company tend to be fired.  In an insurance situation, this means the less money is paid out to otherwise rightful claims; the more money the insurance company makes; the better the employee is viewed.  I have personally seen this attitude in my insurance adjuster acquaintances.  These are people that are otherwise good, well meaning, and have the victim in mind.  They simply get overwhelmed by the money and the desire to please their bosses.

  1. A DIFFERENCE IN VALUE OPINIONS

We all value our own family, our own friends, our own possessions and pets more than other people value them.  Each of us has a personal affinity for the things closest to us.  This creates a natural bias when those things are lost.  The death of your own pet is more important to you than the death of a stranger’s pet.

So too is it true with injury accident claims.  Your pain, your suffering, the accident’s effect on your life is more meaningful and valuable to you than a stranger.  This results in claims adjusters at insurance companies who simply don’t share your value for your suffering as a victim.  Therefore, insurance offers are made valuing an average payout rather than your particular experience.

Computers Affect Accident Claim Value

Computers are also the enemy of value!  Many insurance companies have specific proprietary programs, such as Colossus, originally made for Insurance.  These computer programs place values on many claims.  Like all computer programs, they make mistakes and are imperfect.  Insurance claim computers may simply fail to take into account all your particular circumstances.  Remember, these computers were built and paid for to save insurance companies money.  Their primary goal was not justice for an accident victim.

  1. TOO FEW VALUE HEROES

Full value of case is often reached only after attorneys are hired, litigation is handled, a jury trial ensues, and a decision is given.  Sometimes there is even an appeal!  With so few people taking the full journey, accident claim values overall go down.  This means even the few people that do go the distance see higher costs and less money in the end because they must make the added effort to “blaze the trail.”

It is understandable to identify with the people who take the money for less than full value.  We all have stress in our lives.  Few are highly experienced at insurance injury claims.  We all want the pride of handling a claim ourselves.  Unfortunately, this also tends to result in lower values for the claim.  So many drop outs create a bias on the part of those who pay the claims (the insurance companies and lawyers).  Insurers get accustomed to their own victories.  The failure of large numbers of people forcing full accident claim values creates an average value payout that is less than reasonable.

I hope these five reasons have informed you.  Others exist.  None of them are equally important.  However, remember that your decisions will also affect the justice that others will receive in the future.  Good luck!

 Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

How To File Your Wrongful Death Claim Past The Time Deadline

Posted on by Matt Hamilton

How To File Your Wrongful Death Claim Past The Time Deadline

Grieving families delay hiring an attorney and filing a lawsuit for the wrongful death of a family member for many reasons.  They may not realize how quick time flies.  A delay in hiring a wrongful death lawyer can lead to the time to file the claim having elapsed.  This article explains the time deadlines for wrongful death claims and when longer time periods may be used.

A Bicycle Pedestrian Accident Leading to a Wrongful Death

Tom is an eleven-year-old boy from Lee’s Summit, Missouri.  He rides his bicycle to school.  He crosses Mo. Highway 50 on his way to junior high school daily.  Tom is a good boy and obeys the traffic signals.

School starts often before sunrise, while people are hurrying to work.  One day while crossing an intersection, Tom and his bicycle are hit by an automobile following a motorcycle, both running a red light.  The motorcycle gets away.  The vehicle stops and waits for the police and ambulance to arrive.

Tom’s family is rightfully devastated and grieving.  It takes a long time for them to get back on their feet.  They delay seeking a lawyer because of the unpleasant nature of the claim.  More than two years elapses.

  • Do they still have a claim?
  • How do they pay the bills?
  • What is a lawyer to do?

Statutes of Limitations; How they are Avoided; When they Bar Claims.

Claims for the death of a family member must be brought under the wrongful death statute.  This is Mo. Stat. § 537.080.  It states that when a person has died because of the wrongful act of another, the spouse, living children, or surviving relatives of the deceased may bring a lawsuit on the descendant’s behalf.  Only one claim may be brought.  The people who stand to benefit are “the wrongful death class.”  Id.

Why History of Wrongful Death Statutes is Important to You. 

Wrongful death lawsuits did not exist traditionally in America or Britain.  There is some debate whether commong law courts in Britain and America recognized the right to sue for the death of a loved one.  However, the majority of courts believe such “judge” court claims did not historically exist.

This lack of the right to sue when someone wrongfully kills another lead to many unjust results.  In response, American State legislatures passed wrongful death statutes in the mid 1800s to allow justice for those who have suffered the ultimate loss.

The Purpose of Wrongful Death Lawsuits

The purpose of the wrongful death statutes is as follows:

  1. Provide compensation to wrongful death class members for their loss
  2. Ensure that wrongdoers pay for the consequences of their actions
  3. To detour wrongful conduct that may lead to death.

O’Grady v. Brown, 654 S.W.2d 904, 909 (Mo. banc 1983).

What Is A Statute Of Limitation?

The term “statute of limitations” is a legal term defined as a time limit imposed by the legal system in which a claim, lawsuit, or criminal action can be filed in court.  It is the maximum period of time a victim can delay before filing their lawsuit.

The History of Statutes of Limitation

Statutes of limitations have a history that goes back to the year 1066 in English common law.  This is right after the conquest of Britain by William the Conqueror.  This was the origin of the English law, what we call “common law.”  America adopted it as colonies, then as a nation.

Why Do we Have Statutes of Limitations?

The idea of the statute of limitations is to ensure the parties will be diligent in their efforts.  The purpose is primarily to protect the defendant, in criminal cases as well as civil cases.  These laws encourage lawsuits to be filed while the evidence is still fresh and witnesses’ memories are still clear.

Time Periods for Statutes of Limitation

The statute of limitation time period differs from state to state.  The time period differs from case type to case type.  If the time period for a statute of limitation elapses, you can no longer file a valid claim in court.

Statutes of limitations can be as long as ten years for many contract disputes.  Even longer periods exist for certain crimes such as under-age rape, murder, and other major felonies.  Statutes of limitations can be as short as one year.  For example, in Louisiana, there is a one year statute of limitation for most every case.  Employment cases can be even shorter.  Victims can have as short as 180 days to file a claim.

A wrongful death claim in Missouri must be brought within three years.  R.S.Mo. § 537.100.  There are many ambiguities in the law.  Both a wrongful death statute and courts order that the statute be “liberally construed.”  Section 1.010; O’Grady, 654 S.W.2d at 904.  This means that whenever there is an ambiguity and the laws is not precisely on point, deference should be given to the victims.

 How Can A Statute Of Limitations Be Longer Than The Deadline Ordered By The Law?

What Is Tolling?

A statute of limitation can be “tolled.”  This is a legal term that means that the time limit deadline is paused.  This “tolling” occurs, for example, when one party is under some sort of legal disability.  For example, a personal injury victim may have a traumatic brain injury.  They may lack the legal capacity to act, or be a child or someone with a mental illness.

Some statutes of limitations can be tolled for military members serving abroad.  Tolling includes situations like the following:

  • Plaintiff is a minor (child) the statute does not begin to run until he reaches the age of maturity.
  • Plaintiff has been declared insane
  • The victim is in prison for a felony
  • Defendant has fled and cannot be found in a criminal case
  • Defendant is currently undergoing a bankruptcy proceeding

What Is Accrue?  The “Discovery of Harm” Rule

“Accruing” is different than tolling.  The wrongful death statute does not define what it means to “accrue.”  Therefore, it is left to the courts to define it.

The courts define accrual as, in essence, when the statute of limitations clock begins to run.  If a lawsuit has never accrued, there is nothing to toll, because an event or a circumstance cannot interrupt an event which is never started.  Bowlin v. St. Luke’s Health System Inc., W.D. 75364 (Mo. App. W.D. 2013).

The Test to Accrue

A statute of limitations begins to accrue when one of the wrongful death class members either knows or can reasonable discover they have a wrongful death claim.  See State Ex. rel. Beisly v. Perigo, 469 S.W.3d 434, 437-38 (Mo. 2015).

In the words of United States Supreme Court Justice Stevens, a wrongful death claim accrues when a “diligent plaintiff has knowledge of facts sufficient to put him on notice of an invasion of his legal rights.”  U.S. v. Kubrick, 444 US 111, 126 (1979).  In other words, a lawsuit “accrues when the right to sue arises.”  Hunter v. Hunter, 237 S.W.2d 100,103 (1951).

How Defendants Conceal Their Wrongful Conduct, Causing Wrongful Death Statutes Of Limitation to Accrue

It is common for corporations and people to hide their wrongful acts.  It is expected that employees, agents, and loved ones sometimes cover up the ill deeds of those whom they care for.  Employees jump to the aid of employers to impress.  Sometimes people cover-up merely out of spite.

Rather than curse such acts, we should reveal how they typically arise.  This is as follows:

  • Threatening or coercing employees to conceal information concerning their error
  • Failing to request an autopsy of a deceased despite the suspicious nature of their death
  • Telling family members the death was “natural”
  • Failing to convene a committee to review the medical death, or code blue, or to determine how to prevent future deaths from similar circumstances
  • Failing to inform others of the wrongful conduct that caused the death
  • Failing to inform the medical community, such as licensing boards about the wrongful conduct
  • Failing to invest the perpetrator who killed
  • Impeding a police investigation
  • Failing to preserve evidence
  • Hiding evidence
  • Destroying evidence

See Joan M. Lockwood, Wrongful death causes of action timely filed though death occurs more than three years prior to suit, The Missouri Trial Attorney 16 (Winter 2013).

Actions and omissions such as these are critical evidence to convince a court to accrue a statute of limitations when the wrongful death time period has elapsed.

Is Fraudulent Concealment Needed to Delay the Start of a Wrongful Death Clock?

Fraudulent concealment is not needed.  The law does not even require a “bad guy.” All that is needed to accrue a wrongful death statute of limitation is persuasive evidence that the class members were prevented from knowing or reasonably discovering that they had a wrongful death claim.  See Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957); Beisly, 469 S.W.3d at 438.

Expect for the defendant to argue that the statute of limitations started at the time of death.  Use the facts of the particular circumstance you are in.  Try to fit them into the categories I have listed above.  Therefore, argue the time of accrual and any tolling facts that may help you.

How To Survive an Allegation that Your Wrongful Death Claim Is Too Late

The following arguments should be proposed to the court and supported by evidence.

  1. Argue that failing to allow the claim goes against the three purposes of the wrongful death statute (see above)
  2. Accrue – display how the wrongful death claimants did not know of facts supporting the claim until a particular date
  3. Accrue – demonstrate how the evidence revealing the claim was not reasonably discoverable until a particular date
  4. Accrue – argue that actions taken by the wrongful death claimants would have revealed the wrongful death claim, but for defendants concealment.
  5. Accrue – list out and explain the actions the wrongful death claimants would have taken, if the defendants would not have acted to conceal the deadly wrongful conduct.

The Need for a Wrongful Death Law Firm

As one can see, wrongful death actions vary considerably from ordinary personal injury automobile accidents.  They involve different laws.  They involve different fact searches.

There are ways in which a simple mistake can cause entire claim to be extinct.  I encourage you; if you have a wrongful death claim, seek the services of wrongful death attorney so these problems can be avoided.  The idea after all is to seek compensation for victims, and detour future deaths.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

 

How to take accident scene photographs [Lawyer Tutorial]

Posted on by Matt Hamilton

How to Take Accident Scene Photographs

THE TYPES OF CASES THAT REQUIRE PROPER ACCIDENT SCENE PHOTOGRAPHS

Applicable for the following types of cases:
• Personal injury cases
• Wrongful death cases
• Insurance Claims

TYPES OF ACCIDENT SCENES

Accident Scene photographs are applicable to any event where someone is injured or killed because of the negligence of another person or entity. However, these are most often experience in the following types of events:
• Auto accidents
• Bicycle Accidents
• Motorcycle Accidents
• Truck crashes
• Slips and Falls
• Construction injuries
• Train Wrecks
• Defective Roads

WHY PROPER ACCIDENT SCENE PHOTOS ARE CRITICAL

Why is taking accident scene photographs important? They will:
• Increase case value
• Increase the credibility of your claims
• Simplify proving your case

WHO NEEDS TO TAKE PROPER ACCIDENT SCENE PHOTOS?

The people who need this information are those making, or defending, the claim. This is typically:
• The victim
• The victim’s attorney
• An investigator
• Someone helping the victim
• The wrongdoer
• Someone helping the wrongdoer

WHY IS A SCENE PHOTO DIFFERENT? WITNESS PRESENTATION.

Accident Scene photographs are different. Accident photographs should be looked at as exhibits to use at a trial. These photographs will be used during witness testimony. As much as possible, back up what the witness says every step of the way with a demonstrative photograph. It will make sure you get all the testimony covered. It will keep your witness presentation on track and in order. Presenting photographs with witness testimony will bolster the credibility of the witness. It will also make the testimony more memorable. Remember, the jury can’t take the witness back in the jury room to deliberate. However, if you admit the photographs, those can go back with the jury. Insurance companies and corporate defendants know this. Thus, good accident scene photographs bolter your case.

ACCIDENT SCENE INVESTIGATION

Good, proper, Accident Scene photographs help the investigative process as well. They allow you to analyze the scene when you are remove in location and time from the event. Good, comprehensive accident scene photography helps formulate and perfect case strategy.

THE IMPORTANT REASON YOU FORGOT ABOUT

One might say; why do I need all these photographs, from all these angles? Why put so much effort if most won’t get used? Those unused photographs are your “ace in the hole.” They can reveal liars and prove those lies to a jury. You would be amazed how otherwise good, honest, well meaning, people can develop “creative memory” when their self-interests get involved.

They will be helping you and admitting fault at the time of the accident, think about it over a period of time, and oppose you when your claim is made. It often is not intentional; the wrongdoer convinces themselves they are innocent and the victim is at fault. Here is where your good accident scene photography comes in. Take the photographs, and help these witnesses come around to the truth they have chosen to forget.

So; what to do? Go through the following steps

TAKE IMMEDIATE ACTION IF THE ACCIDENT SCENE GOING TO CHANGE?

Did the injury or death happen at a location that changes? For example,
• Was it a construction site?
• Did the accident occur in traffic?
• Were there car parts?
• Are there skid marks?
• Was there a weather issue?

Get out to the scene and take photographs immediately if this is true. The sooner the better.

I advise getting out to the scene as soon as possible in any event. You are going to have to invest the time and effort anyway. Better to reduce your risk and get your claim started “on the right foot.”

HOW SIMILAR IS THE SCENE NOW COMPARED TO THE ACCIDENT?

Accuracy is paramount when taking accident scene photographs. Yes, as discussed above it is important to photograph the accident scene as soon as possible. However, next, consider the conditions.
• What is the sun like?
• How is the weather? Blue sky versus clouds
• Snow?
• Rain?
• Leaves on trees?
• A particular traffic event?
• A particular construction event?

It is not unusual for me to calendar photographing an accident scene exactly one year from the date and time of the accident. This can be a good approximation.

Remember, the insurance company or other lawyer will want to look at your accident photo, and criticize any little detail as difference, saying that it is inaccurate. If the judge agrees, this may keep it out of evidence entirely.

CHOOSE THE RIGHT CAMERA LENS

Use your cellular phone camera if that is all you have available. However, if you have access to a professional DLSR camera; use it. You’ll take better photographs and have fewer problems. This blog and our YouTube channel has a stand-alone article and video at https://www.law-kc.com/lawyer-accident-scene-camera-lens-use-choice/ discussing these very topics. It is important to master this step.

Choose the right lens. You may want a 35mm lens, or a telescopic zoom lens, or a 50mm lens. Macro lenses are critical for defective product cases; any time a very small object needs to be photographed in detail.

360 DEGREES – THE FIRST THING TO DO WHEN ARRIVING AT ACCIDENT SCENE

The first thing to do when arriving at an accident scene is get out your camera, put it in video mode, and start the video. Make a full 360 degree turn all the way around. Do it slowly, so if you need to stop frame later on, you can see what is being filmed. This will ensure you have access to this information if it later becomes important for your accident claim and was not on your mind while you were at the accident scene.

INCLUDE THE WEATHER IN YOUR PHOTOS

You’ll be surprised how often little details, like the weather, become important in cases. Your witnesses may discuss it. The wrongdoer, or insurance company may claim it is a factor. Better to preserve the weather.

If you’re unsure of the weather at the time of the accident, look to online weather forecasting websites. Many have archives of weather, temperature, cloud cover, and wind at the time and location of the accident. Remember, you want the jury looking at your accident photographs, and going through the events in their own mind, as if they are actually standing there during the accident.

CAR ACCIDENTS – SKID MARKS AND SHAKE DOWN

It is important to photograph the road itself in any auto accident case. “Shake down” is referred to as the broken parts of the car that fly off during a car crash. Skid Marks, are tire marks left on the road from vehicles, stopping, skidding, or rolling. If there are things on the road after a car accident; photograph them. If there are NO skid marks; if there is no shake down on the road after a car accident; photograph that too. This will preserve the scene for later use.

USE A TAPE MEASURE

Take a measurement device to the accident scene. Take your accident scene photographs with a measurement from a known spot, and without the tape measure. Think in advance about any important measurements that should be taken. Don’t just “wing it” once you’re there. Make a list in advance. Go through your list once you are there. That way it is thought through and complete.

Also, once at the accident scene; look for any unforeseen issues that can be covered. Measure those as well. Later accident reconstruction will find this invaluable.

TAKE FAR AWAY ACCIDENT SCENE PHOTOS

You will want to document through photographs all the accident scene. This will require you walking far away from the accident scene and getting photographs of the scene as a whole. Also, get up high. Try to take photographs from above.

PHOTO AND VIDEO MOVEMENT AT THE ACCIDENT SCENE

• Auto Accident scenes have traffic and moving cars.
• Car crashes at intersections have the behavior of vehicles as the lights turn.
• Train wrecks show what can be seen as a train approaches.
• Bicycle accidents show how far away the bicycle can be seen by a motorist.

This is where the video mode on your camera comes in. Switch to video and document movement at the scene.
• How much time did the victim have to react?
• How much of a distraction was the construction?
• How long did it take for the vehicles to get there.
• What did the approaching harm look like to the victim? How much time in advance did the wrongdoer have?
• What would they have seen?

Take video both from the perspective of the victim and the wrongdoer. These items of video can be used to bolster the credibility of your witnesses or to impeach the lies told by others. So, take video from both points of view. All of these items are important pieces of evidence to gather.

MAKE A LIST. IN ADVANCE!

You don’t want to forget a photo you thought of in advance and forgot at the scene, when you became distracted.

WHAT HAS YOUR EXPERIENCE BEEN?

Please comment and let us know what you believe are the most important accident scene photographs. Please look to www.law-kc.com for additional information on accidents and how to get justice from the losses they impose.

Matt Hamilton