San Francisco Injury Lawyer Blog

Big Year Ahead For California Auto Insurance

March 2, 2012 | Gregory J. Brod

car%20crash%20x%202.jpg It is not possible to turn on the TV these days without hearing endless news of the 2012 election. The presidential race has consumed most media focus, but here in California, there are other important issues that will be on the ballot in November. Among them is the 2012 Automobile Insurance Discount Act, proposed by the American Agents Alliance and supported by the billionaire chairman of Mercury Insurance George Joseph, to the tune of $8 million.

As a California insurance attorney, I see some potential issues with this Act. The changes in the so-called “persistency discount” might be helpful to some consumers. Right now, a driver generally gets a discount for having and keeping auto insurance, but if a driver switches insurance companies, that discount for maintaining insurance is lost. This Act would allow the driver to keep the discount for maintaining insurance even if he or she switches insurance companies, which supporters of this Act say is a good thing for responsible drivers.

However, the darker side to this Act is that it would also allow insurance companies to raise rates for a driver who has not kept continuous coverage. That is common in other states, but has been illegal in California since 1988. Critics say this proposal will hurt consumers who don’t own a car or use public transportation, despite being good drivers. Critics, particularly Consumer Watchdog, point to similarities in a failed ballot initiative from the 2010 election, Proposition 17. That proposed act was directly supported by Mercury Insurance and failed narrowly, 52% – 48%. One major stumbling block to Proposition 17 was that it made no provision for military personnel who are often deployed for a year or more. This 2012 Act remedies that with special provisions for the military.

San Francisco Elder Abuse Attorney Files Wrongful Death Suit

March 2, 2012 | Gregory J. Brod

A San Francisco wrongful death lawsuit has been filed against California’s transit agencies and Jewish Family and Children’s Services (“JFCS”). The suit was filed by the family of Kenneth Chin, a dementia patient and resident of an area facility who died about a year ago of hypothermia. On February 25, 2011, Chin, who was 73 years old at the time of his death, boarded his daily shuttle to another facility for his usual daytime activities, but when the shuttle returned that evening, Chin was not aboard. Employees at JFCS called the police, and a search team spent several days searching the surrounding area. It was more than a week before Chin’s body was found in Lincoln Park, less than one mile from the facility where he lived. An autopsy demonstrated that Chin had died from exposure to the cold. elderly%20wheelchair.jpg

The suit makes allegations that San Francisco elder care negligence by JFCS and the shuttle transit company were the direct causes of Chin’s death. The complaint points to several ways in which the transit company’s failure to act with reasonable care contributed to this tragedy. First, the driver of the shuttle bus on February 25 was a substitute driver who was unfamiliar with the patients and their routines. Second, the driver of the bus that day could not speak English very well, which means that he may not have fully understood his instructions for transporting the patients. Because he was responsible for driving patients who lacked the mental capacity to get around on their own, it was crucial that he know exactly where each patient needed to be. Sadly, whether due to a language barrier or due to some other form of negligence by transit employees, the instructions regarding where Chin needed to be dropped off at the end of the day did not get communicated clearly. As a result, Kenneth Chin was let off the shuttle in a part of town that, in spite of its proximity to his home, he did not recognize. He was left to wander around in the cold for days and eventually froze to death. The suit also accuses JFCS of neglect for failing to notify Chin’s family of his disappearance for a full three hours after the fact.

Chin’s case is just one of several San Francisco nursing home abuse cases that have been in the news over the past few months. Although this very serious issue is getting more media attention, the state has not yet done enough to combat the growing problem of elder neglect. Studies have shown that a growing number of reports of abuse or neglect have been filed against those charged with protecting and caring for the elderly and the disabled. Unfortunately, many of those reports receive nothing more than a cursory investigation before being dismissed. The workers against whom these reports are filed are often still working with other patients long after complaints have been received. It is becoming increasingly necessary for family members to turn to the court system to put additional pressure on these agencies and facilities. Hopefully, more families will do what the Chin family has done and do their part to help put a stop to patient neglect in California.

Fatal Fairfield California Car Accident Reminder of Need to Remain Safe While Traveling

February 29, 2012 | Gregory J. Brod

California car accidents seem to strike on a daily basis. Because of the frequency of the accidents local community members are prone brush off news of reach each accident that occurs. Unfortunately, our Bay Area car accident attorney understands that most residents don’t think all that much about roadside safety until they are affected themselves. It is one thing to read about a roadside accident, it is another to be involved in a crash yourself or have a friend or loved one involved. CarAccident7706.2.JPG

With everyone’s lives moving at a steady clip these days, it is understandable for local residents not to dwell on these events. However, considering the implications and potential harm that result from traveling accidents, it is important to take time now and again to remember the basics of safe traveling. It is not an exaggeration to say that one’s life may hang in the balance. There are reminders every day of that reality.

For example, the Napa Patch reported last week on a fatal crash that struck on state Highway 12. According to the report, one person died and two others were hurt in the accident. The California Highway Patrol continues to investigate the situation and more information is expected to come out later. However, it is known that the accident occurred shortly before six in the evening last Wednesday on Highway 12 just east of Red Top Road. As many as four vehicles may have been involved. Officials have yet to release many details of the accident. But it is known that at least one person was pronounced dead at the scene and two other were rushed to local hospitals with serious injuries.

Dangerous Condition of Public Property- Tort Claims Against Government Entities

February 28, 2012 | Gregory J. Brod

traffic%20calming.jpg In 2000, Mayor Willie Brown, Jr. implemented the San Francisco Municipal and Transit Agency (SFMTA) Traffic Calming Program. The purpose of the program is to increase safety for drivers and pedestrians by reducing speeding, reckless driving and road rage, and traffic spillover from main roads onto residential streets.

Methods of traffic calming are numerous and address specific problems. Traffic calming projects that reduce speed include traffic circles, speed bumps, narrowing roads at certain points. Other projects focus on pedestrian safety, such as traffic islands in the middle of crosswalks and bulb outs on the street corner that increase visibility and reduce the physical distance between sidewalks.

The SFMTA takes certain factors into account when evaluating the feasibility and necessity of a project. These factors include requests for traffic calming, evidence of excessive speeding, traffic volume, and the relative prevalence of accidents. Other considerations include the proximity of a site to schools and tourist attractions, population density, and ensuring that traffic calming projects are spread equitably throughout the city.

Residents have responded positively to the efforts by the SFMTA, which is demonstrated by the backlog of projects on the SFMTA’s plate. Requests with the required number of signatures may take one to five years to reach the top of SFMTA’s list of sites to improve. Once a request is approved, there is than a public comment and planning process that may take another two to five years. The requests have become so numerous that SFMTA is no longer accepting requests while it goes through the current list of requests and prioritizes projects. The SFMTA lists 23 current projects in the implementation stage and another 15 that are named as future projects. Funding is the key component to completing these 38 city wide traffic calming projects already in the pipeline and for numerous projects languishing on the waiting list.

San Francisco has one of the highest vehicle pedestrian collision rates in the country. Seemingly endless requests for roadway improvements indicate the dangerous conditions at many intersections and high traffic areas. When an accident occurs, many injury victims sue the driver who caused the accident. However, there is another common defendant- the City and County where the accident occurred. Cities are responsible for maintaining public roadways, therefore, a city may be liable for the dangerous condition of public property if, for instance, the dangerous nature of a roadway, was a substantial factor in causing a serious injury accident.

However, a government entity is not the typical defendant. In general, an injured party has two years to bring a personal injury case. When a government entity is involved, injured parties must pay attention to two different statutes of limitations. In the case of dangerous condition of public property, they have six months from the time of the injury to make a claim that substantially complies with the requirements set forth in Government Code §910 directly to the government entity which controls the property in question. The claim must be denied before the potential plaintiff may file a civil action against the government entity. The plaintiff has one year from the date of the injury to file suit.

There are three main elements to the action of dangerous condition of public property set out in Government Code §835

The property was in a dangerous condition at the time of the injury;
That the injury was proximately caused by the dangerous condition;
That the dangerous condition created a reasonably forseeable risk of the kind of injury which was incurred; and
The public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

This is one of the toughest elements to prove.

Requests for traffic calming to the SFMTA could reasonably be considered constructive notice of the dangerous condition of roadways.The dangerous condition of some San Francisco roads not only causes disruption to residents, but also may substantially contribute to serious injury accidents. However, Government Code §830.8 states that “neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide, traffic or warning signals, signs, markings or devices” unless such a measure was necessary to warn of a dangerous condition which would not be reasonably anticipated by a person exercising due care. An attorney will be able to evaluate whether the controlling public entity could be liable.
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San Francisco Muni Accident Injury

February 27, 2012 | Gregory J. Brod

The San Francisco Gate reported on Friday of a San Francisco Muni accident that injured a local 27-year old woman. According to the story, woman was walking her dog in the Inner Sunset neighborhood in the afternoon last week when she came upon two stopped Muni Metro cars. The woman tried to walk between the cars. It seems that she made it without a problem, but her dog became stuck underneath the connector that was coupling the two cars. The woman was able to step over the connectors, but this proved too difficult for the dog. The woman picked up the dog to carry it over. Muni%20accident.jpg

However, it was at that moment that the trains began moving again. The woman was unable to get out of the way as the train started. She and the dog were eventually dragged about a half a block before the train stopped. Authorities explain that the woman was particularly lucky. She suffered some scrapes, bumps, and bruises, but things could definitely have been much worse.

This latest accident occurred on the N-Judah train line. Local residents know that the N-Judah is one of the most accident prone lines in the city. Every year more and more residents suffer a range of injuries on the line-often as a result of equipment problems, operator negligence, and the like. As the members of the rescue crew in this case explained, Muni accidents are often quite serious. They explained, “had she gone all the way underneath, the metal wheels literally would have amputated any part of her body that they’d come across. Those accidents are usually very tragic, but she was very fortunate.”

Large Passenger Vans Raise Liability Concerns for Trip Organizers

February 24, 2012 | Gregory J. Brod

The U.S. Department of Transportation is urging owners of 15 passenger vans to exercise extra care in the maintenance and driving of their vehicles. Organizations like student groups, tour groups, and companies that provide transportation to commuters and the elderly may use 15 passenger vans to carry groups of people from one place to another. 15 passenger vans may not be used by schools or day care providers because of their inherent dangers.

Such organizations should take the Department of Transportation’s recommendations in earnest, as van rollovers are more common than car rollovers and result in more fatalities. The National Center for Statistics and Analysis found that in 2002 38% of 15 passenger vans crashes involved a rollover.

The National Highway and Traffic Safety Administration (NHTSA) released a brochure on van safety, which reminds van operators to regularly check large passenger vans for common trouble areas. One main cause of van crashes is improper maintenance of tires. Inexperienced drivers may not be aware of the difference between standard tires and tires made for vans, which could lead to improper inflation and dangerous driving conditions. Tires on a typical sedan require about 30psi of air pressure on all four tires. However, vans require about 50 psi on the front wheels and 80 psi on the back wheels. Large van tires wear out more quickly than tires on other types of passenger vehicles because they are carrying a heavier load.

California Health Insurance Report Card

February 24, 2012 | Gregory J. Brod

The California Office of the Patient Advocate, created to inform and educate Californians on their HMOs and health insurance providers, released an annual Health Care Quality Report Card (http://www.opa.ca.gov/report_card/) this week detailing the scores for California’s nine largest health management organizations, six largest preferred provider organizations, and 212 medical groups representing 16 million consumers with private health plans. In general, it seemed California consumers were satisfied, but the report highlighted the need to improve treatment for lung disease, attention-deficit disorder, and throat infections in children. Additionally, more than a third of health insurance consumers stated they had problems with how the insurance organizations dealt with complaints.

This year’s report card also stated that the California providers exceeded the national average in terms of diabetes care and controlling high blood pressure and cholesterol, but scored lower on heart attack medications, flu shots for adults, and providing treatment for alcohol and drug abuse. Insurance consumers also complained about the difficulty getting cost estimates for medical procedures and figuring how much their insurance will pay for, as well as paying for the claims correctly.

Each plan is ranked in categories of care between one and four stars, depending on meeting national standards and membership ratings on things like getting appointments and customer service. The only HMO to receive an overall four start rating was Kaiser Permanente, but even they had troubled areas. Kaiser only received two stars for ease of making appointments and treatments, especially with specialists. And in northern California, it only received one star for plan service, which includes processing of claims. Overall, fourteen of the fifteen health plans rated scored only a one or two star rating out of four stars in customer service, which includes questions about costs and claims. Among the preferred provider organizations (PPOs), none of the six received the highest four star rating. Only three, Aetna, Cigna, and UnitedHealth were ranked as three stars, or good.

Local Authorities Move to Limit Dangerous Rodent Poisons

February 24, 2012 | Gregory J. Brod

Our Oakland product liability lawyer believes consumers should be protected from dangerous products in Northern California. We especially applaud efforts by our communities to protect children, a group that is particularly vulnerable to dangerous household goods.

The Oakland Tribune reported this week that Richmond is joining several area communities in attempting to protect our children and pets from dangerous rodent poisons. The Richmond City Council approved a measure, similar to those already in place in Albany and San Francisco, asking retailers to voluntarily stop sales of certain pest control products. Similar products have already been banned by the federal Environmental Protection Agency. The ban covers particularly toxic formulas as well as loose pellet poisons. In 2008, EPA officials requested that manufacturers re-tool their products so that the poisonous bait is in stations that are inaccessible to children and household pets. Manufacturers were asked to comply by June 2011 but not all makers have done so and the EPA is taking steps to remove the offending products. This process, however, takes time to accomplish and moves like that in Richmond attempt to control the ongoing problem.

The Tribune cites the American Association of Poison Control Centers, noting that between 12,000 and 15,000 cases of children being exposed to rodent poison are reported annually. Unreported cases make the actual number of children impacted significantly higher. The fact that rodent poisons are often placed on the floor makes young children especially vulnerable. Pets also frequently ingest the products, with one group noting that nearly half of all animals test positive for exposure to rodent poisons.

Fires and Insurance Coverage Disputes

February 22, 2012 | Gregory J. Brod

As a long-time member of the Northern California community, our Oakland insurance coverage lawyer knows home fires are tragic. As a lawyer for Oakland insurance claimants, he also knows that a fire is often the beginning of a long fight for compensation. Two recent fires serve as a reminder that each fire, and hence each insurance claim, is unique.

Home fires can be sparked by a myriad of causes. The Oakland Tribune reported on an early morning blaze on Tuesday at the 900 block of 37th Street. Fire teams from the Oakland Fire Department responded to a call at 3:55AM and were able to put the flames out in relatively short order. The fire took place in a two-story, four-unit building and, despite being controlled in only fifteen minutes, displaced four residents. The fire was sparked by an old-fashioned oil lamp that a resident accidently knocked over while using it to provide life when preparing a late-night (or, perhaps more accurately, early morning) snack. After tipping, the lamp ignited curtains and grew beyond the resident’s control. Thankfully, the apartment resident was able to wake his neighbors by knocking on walls and doors. No one was harmed in the fire.

A second fire also occurred in the early morning hours, this one on the 800 block of Page Street in Berkley. The fire caused damage to a residential art gallery and displaced two individuals from their housing. While battling the blaze, called in at 3:23 AM and extinguished at 4:08 AM, two firefighters incurred minor, undisclosed injuries. No estimates of the damages have yet been released and the cause remained under investigation at the time of the Oakland Tribune report.

Pedestrian Pinned by Shuttle Van But No Criminal Charges Brought: The Benefits of a Civil Action

February 21, 2012 | Gregory J. Brod

An impatient shuttle driver rushed a turn through a crosswalk and pinned a man for twenty minutes, according to ABC Local News. The accident, which occurred on February 15, 2012, was captured by surveillance video set up at Empire Market in the Tenderloin District and showed the pedestrian had the right of way.

The driver of the Paratransit shuttle stayed on the scene and was cooperative with police. Police officers determined that the incident was an unfortunate traffic incident and no charges will be brought against the driver, who was shuttling a van load of disabled passengers.

Injured parties, such as the victim of this accident who was trapped for twenty long minutes under the shuttle and suffered multiple broken bones, may feel that it is unfair if no charges are brought against the person who caused their injuries.

Persons injured in an accident should remember that the court system has two tracks: one for criminal actions and one for civil actions. Every criminal action is brought by the state or federal government on behalf of its residents. Convicted defendants are punished with jail time, fines, and other penalties in order to achieve justice and deter the convict and others from committing future crimes.

The District Attorney may not pursue a criminal action against someone who, for instance, causes personal injury or property damage for a variety of reasons. In this case, it is possible that the driver mitigated the situation because, although he made a mistake, he stayed at the scene and cooperated fully with the police investigation of the collision. Before bringing a criminal action, the District Attorney weighs the costs of a potential criminal suit with the necessity to serve justice and the public good.

Whether or not a defendant is convicted in criminal court, the victim does not receive any compensation for pain and suffering or the expenses brought on by the incident. The remedies provided in criminal and civil court serve different purposes. The criminal court provides a castigatory remedy against defendants which are found guilty. The civil courts provide a forum for victims themselves to protect their private rights and property. Individuals, entities, and the government alike may bring a civil suit against the defendant to seek a remedy, usually money damages.

The burden of proof required to find against a defendant is also different in criminal actions from civil actions. In criminal actions, because the defendant is often being deprived of their Constitutional right to liberty, the defendant must be found guilty beyond a reasonable doubt. However, in a civil action in order to make a viable claim against the defendant a plaintiff must only prove by the preponderance of the evidence that the defendant caused the plaintiff damage. In other words, the plaintiff must only tip the scales of justice in their favor to recover in a civil action. Nevertheless, the burden of proof is a key element in both civil and criminal actions. As soon as an incident occurs, the injured party should keep evidence in mind and immediately start to gather and preserve proof of any possible claims.

For example, if the pedestrian in this case were to gather proof for a civil action, he should immediately request the police report for the incident, the surveillance video which captured the accident, his medical records describing his injuries and the progress of his recovery, and records from any jobs showing past wages lost as a result of his injuries.

Injured parties should remember that just because a criminal action was not brought against the party which caused them damage does not mean that an injured party should not bring a civil action. Furthermore, even if a criminal action is brought against the other party, they will not receive any compensation unless they file and prevail in a civil action.
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