San Francisco Injury Lawyer Blog

The “Eggshell Plaintiff” Rule in San Francisco Injury Lawsuits

November 12, 2012 | Gregory J. Brod

Our San Francisco personal injury lawyer knows that every case is unique. Our team treats every client as an individual, listening to the facts of each claim and helping guide each client to a positive result. While some laws and legal principles require applying the same rule to every case, other legal concepts recognize the individuality of every plaintiff. One such concept is the “eggshell plaintiff” rule.

The important principle behind this rule is the recognition that the same incident can effect different people in different way. In civil courts, the physical state of the plaintiff at the time of the accident is not relevant and the defendant is responsible for the injuries sustained by the victim, even if the particular plaintiff’s health status meant he or she suffered a more serious injury that an average person would incur in a similar occurrence. The “eggshell plaintiff” theory imagines a person who has a very thin (or “eggshell”) skull. Suppose this person is involved in a car accident. While the crash might only leave an average person with only minor bump on the head, the same collision might leave this plaintiff with a significant skull fracture or other major injury. Despite the fact that the degree of injury is unusual, if the defendant is legally responsible for the accident then the defendant is liable for the result. Under the “eggshell plaintiff” rule, the defendant must still compensate the victim for the full extent of the injury. To put the rule in other words, the defendant “takes the plaintiff as he finds him,” including any unique susceptibility to injury such as a congenital condition or prior injury. This does not mean the defendant is responsible for inevitable injuries that would have happened even without the accident if the collision only had a minimal impact on the outcome.

California law recognizes the eggshell plaintiff concept and includes it in the state’s civil jury instructions. CACI 3927 provides:

Insurance Broker Charged With Cheating Celebrities

November 9, 2012 | Gregory J. Brod

Another case of a shady insurance broker has come to light in California, this time making even bigger news because it affects some well known celebrities. Some of those cheated by this particular broker are Tom Hanks and Andy Summers, the former guitarist of The Police, as well as others.

The Federal Bureau of Investigations (FBI) had been investigating this case, which came to a head this week in southern California. On Wednesday, 59-year-old insurance broker, Jerry B. Goldman, was arrested at his Thousand Oaks, California, home after being indicted by a federal grand jury on October 30 for mail fraud, alleging that he overcharged his clients by $800,000 over the 13 year scheme. The indictment includes 10 counts. Each of those counts carries a maximum penalty of 20 years in federal prison. Goldman pled not guilty when brought before a judge during his arraignment in Los Angeles and was released on $25,000 bail, posted by his wife.

The indictment of Goldman alleges that he overcharged four victims for insurance policies from 1998 until the summer of 2011. Mr. Hanks and Mr. Summers were only referred to in the indictment as “T.H.” and “A.S.”, but the prosecutor’s office confirmed their identities. The other two victims are only referred to as “M.W.H.” and “S.R.”, but it is also speculated that they are known celebrities as well. He provided these four victims with insurance coverage for numerous things, including their cars, property, and art collections, from floods, fires, earthquakes, worker’s compensation, and personal employment liability. The indictment does not break down the specific loss for each of the four victims and so far, none of the affected celebrities have issued any statements about this situation.

A Joint Effort – Criminal and Civil Liability for Nursing Home Abuse

November 9, 2012 | Gregory J. Brod

We are proud to serve as a Sacramento nursing home abuse law firm, helping victims and families bring claims in civil court. As we have noted many times, the civil and criminal systems are separate and the viability of a civil claims does not depend on the success of a criminal case. However, while the systems are separate, the courts serve victims best when both parts work together to achieve justice that punishes wrongdoers and compensates victims.

A recent report in the Sacramento Bee examined the issue of criminal prosecution in nursing home abuse cases. The article cited the case of Don Esco, a California man who spent over four years seeking to hold nursing home personnel criminally liable for his wife’s death. Although he had settled a prior civil case, Esso continued to believe the incident merited criminal accountability. The state reopened a criminal case earlier this year bringing charges that substandard care and the failure to supervise staff contributed to Johnnie Esco’s death following a thirteen day stay at the care center. Don Esco passed away last month, just weeks before the case moved forward with one nurse pleading no contest and another agreeing to cooperate in the case against a supervisor.

While Don Esco did not live to see the nurses and facility held criminally accountable for Johnnie’s death, his persistence is making a difference in the state’s stance on criminal nursing home abuse cases. State Attorney General Kamala D. Harris recently committed to prosecuting more criminal cases relating to nursing home abuse. The AG’s office is setting up three specialized teams aimed at pursuing charges against administrators and employees where the team believes systemic problems led to resident mistreatment. Each team will include an attorney, a nurse, and an auditor and will have support from medical personnel specializing in geriatrics. The teams will build criminal cases involving charges of systemic abuse against facilities that oversee daily activities for older patients, focusing on people and groups that put profit ahead of care rather than isolated incidents of employee error.

San Francisco Injury Lawyer on the Rising Rate of Golf Cart Injuries

November 7, 2012 | Gregory J. Brod

When people think about moving vehicle accidents, their minds usually turn first to car crashes. If pushed to think beyond automobiles, people might mention motorcycle or bicycle-involved accidents. The next list of vehicles would probably come from the mass transit category, including buses, trains, and even planes. However, our San Francisco injury lawyer knows that there are many kinds of vehicle accidents that wouldn’t make even the most thought-out lists. One such often-unrecognized but still quite real danger comes from golf cart accidents. The small vehicles have grown more powerful over the years, but operators still tend to take piloting a golf cart much less seriously than an automobile – a dangerous, even fatal, combination.

Golf Cart Accidents: Safety & Stats

In 2008, the American Journal of Preventative Medicine published what many suggest was the first nationwide study focused on golf cart accidents and injuries (note: readers can access the full-text of the study with registration on the Journal’s website, a discussion of the report that informs this article is available on Newswise). The Center for Injury Research and Policy, a part of The Research Institute at Nationwide Children’s Hospital, conducted the study based on data from hospital emergency departments in the United States across the seventeen year period from 1990 to 2006. During the entire span, the report found an estimated 148,000 golf cart related injuries occurred nationwide. Over the seventeen year span, golf-cart related injuries soared 132%, with approximately 5,770 reported injuries in 1990 growing to an estimated 13,411 injury cases in 2006.

Products Liability Law: From Basketball Stars to Friends and Family

November 5, 2012 | Gregory J. Brod

At The Brod Law Firm, our Sacramento injury lawyer believes that every client deserves his full attention, the benefit of his legal knowledge, and the advantage of the years of experience his whole legal team has representing victims in Northern California’s civil courts. When we work on product liability suits, we focus on linking the injury to the defective product and proving the extent of damages suffered as a result. Our job, and our dedication, is the same whether the client is a household name or known only in his/her own household. Still, the attention drawn to a celebrity case can help remind everyone that the law does provide remedies for those injured by a faulty product in California.

Garcia and Kings Settle Product Liability Claim Over Defective Exercise Ball

As reported in The Sacramento Bee, the Sacramento Kings and Francisco Garcia, who has played for the team since being chosen as a first-round draft pick in 2005, recently settled product liability claims stemming from an accident tied to an exercise ball. On October 9, 2009, Garcia was working out and lifting weights while he balanced on a seventy-five centimeter Gymnic exercise ball. The ball unexpectedly burst, dropping the athlete forcibly to the floor while he continued to hold a ninety pound weight in each hand. According to Garcia’s complaint, he incurred serious injuries including a fracture to the right forearm. As a result of his injuries, Garcia missed four months of basketball in the first year of a five-year, $29.6 million contract extension. Due to an aggravation of the forearm injury, Garcia missed an additional two games this March. According to a study commissioned by the plaintiffs, the company warranted that the exercise ball was blast-resistant and able to withstand 600 pounds, but tests showed a similar ball burst with under only 400 pounds of weight.

“Force-Placed” Regulations for California

November 2, 2012 | Gregory J. Brod

Unless you work in insurance law or the insurance field, you may not know what “force-placed” insurance is. Force-placed insurance, sometimes called “lender placed”, is when a lender or creditor takes out insurance on an asset that doesn’t have insurance, and the costs of the insurance are passed on to the customer, hence why it is “forced”. This method is most commonly used on vehicles and houses. So when a person buys a car or a house with a mortgage or a loan, the creditor, usually a bank, requires that the buyer carry insurance on that property. If the buyer doesn’t get his or her own insurance, the creditor obtains insurance to protect their investment.

Now, according to the Insurance Journal, California Insurance Commissioner, Dave Jones, is considering new regulations for these force-placed insurance policies, specifically whether it should be filed as a specialty line or a commodity. Mr. Jones said, “The Department is also contemplating regulations that would require all insurers that write lender placed property insurance to file the rates as a commodity rather than as a specialty line.” Traditional homeowners and automobile insurance already have to be filed as commodities. Filing as a commodity restricts the insurer’s ability to deviate from the standard rate approval process. This past March, the Commissioner contacted the ten largest forced-placed insurance providers in California and asked them to submit new rate filings. Upon closer inspection, the Department found signs of excessive rates charged by some insurers.

Armand Feliciano, vice president of the Association of California Insurance Companies and Property Casualty Insurers Association of America, is wary of the potential new regulations. He also disputes the term “force-placed” insurance. He says insurance is necessary to protect a bank’s assets, and that those concerned with the practice should be looking at banks and not the insurance companies for solutions. “When you say ‘forced,’ did they not sign a contract?” Mr. Feliciano pointed out. “If you’re going to lend someone $500,000, you’re going to want some assurances. Obviously [Commissioner Jones] can’t regulate the banks. But he should talk to the banks. The banks tell us what to cover.”

Contra Costa Wrongful Death Suit Calls Attention to Aviation Threat

November 2, 2012 | Gregory J. Brod

Our Oakland wrongful death law firm knows that no lawsuit can ever bring back a loved one. However, we also know that a civil claim can help mitigate the economic losses that follow a death, allowing the survivors to focus more on their emotional healing than on how to pay regular bills and the costs directly stemming from the death (i.e. medical bills, burial costs). In some cases, a family’s fight can also inspire changes in behavior and new laws aimed at saving lives in the future.

Experienced Agricultural Pilot Dies After Colliding withTower

The Oakland Tribune and Contra Costa Times are following recent developments stemming from a 2011 plane crash. On January 10, 2011, agricultural pilot Stephen Allen’s plane struck a 198-foot tower on Webb Tract in Contra Costa County. Allen perished in the Delta Island accident and the National Transportation Safety Board’s investigation suggests he did not see the tower. The pilot had been flying for more than twenty-five years and ran a local agricultural business.

Northern California Injury Law Firm’s Tips for Staying Safe on Halloween

October 30, 2012 | Gregory J. Brod

You can almost feel the excitement in the air as the kids begin counting down the hours until the can step into their costumes and out to the street for a night of trick-or-treating and the candy buzz to follow. Parents are looking forward to pulling out their cameras to document this year’s costume and other households are getting ready to greet the kids who ring the bell and see this year’s variety of cute, scary, and creative outfits. Before the fun begins, our San Francisco injury law firm wants to take a moment to remind readers about Halloween safety.

A Few Safety Statistics

Halloween should leave behind great memories, with the only dark spot being an upset tummy from too much chocolate. However, Halloween can quickly turn tragic. In October 2011, SafeKids Worldwide http://www.safekids.org/our-work/research/reports/halloween-research-report.pdf (a group focused on preventing unintentional injuries to children worldwide) published a report on Halloween safety. Eighty-nine percent of the parents surveyed for the report said their children take part in some form of Halloween activity, with 73% reporting the activities included trick-or-treating. This leads to an increase in foot traffic and, unfortunately an increase in accidents. More than twice as many children die in pedestrian/vehicle accidents between 4 and 10 P.M. on October 31 than on a typical evening.

Study Calls Attention to Rise in Foodborne Illness in 2012

October 29, 2012 | Gregory J. Brod

The CNN headline caught the attention of many, including our San Francisco food safety lawyer – the number of people dying or becoming ill due to contaminated food has risen a startling 44% since last year. A report by the U.S. Public Interest Research Group (“PIRG”) noted that 2011 saw 718 illnesses directly linked to recalled food nationwide. In only the first nine months of 2012, the number of illnesses attributed to recalled foods was 1,035. This 44% increase includes ailments traceable to products ranging from mangoes and cantaloupe to meat and nut butter. Notably, the number sickened in the recent nut butter recall has continued to rise, with the Center for Disease Control increasing the number of confirmed salmonella cases to thirty-five (it is not immediately clear if some cases would fall into October statistics and thus outside the period in PIRG’s report).

Overall, going beyond cases linked to formally recalled products, approximately 48 million people fall ill annually after consuming tainted food. The PIRG report emphasizes that the problem of foodborne illness is getting worse. Examining national health objective targets and actual 2010 data reveals that the only target met was for the incidence of E. Coli 0157. The incidence of salmonella, the culprit in the majority of hospitalizations and deaths associated with foodborne illness, was three times the stated target.

As we’ve previously discussed, the Food Safety Modernization Act became law two years ago. The legislation sought to improve food safety through several routes, including giving the Food and Drug Administration (“FDA”) more power to respond quickly and hold companies accountable when an outbreak of foodborne illness occurs. However, budget concerns have prevented the law from being fully implemented and the main thrust of the law’s regulatory framework remains in governmental limbo with no established timeframe for the Act to move forward. PIRG’s report criticizes this delayed implementation and planned cuts in FDA funding. Additionally, PIRG criticizes the failure of the FDA to keep pace with increasing demands for inspection of foods imported from abroad (approximately 15% of all food consumed in the U.S. and up to two-thirds of fruits and vegetables are imported). PIRG calls for improved funding for the FDA and for the agency to create more concrete, specified inspection standards that include unannounced visits. The group also urges improved coordination between the FDA and other agencies including the Centers for Disease Control and Prevention. In reply, the FDA notes that the rule-making process is time-consuming and the main federal budget group adds that they have taken important steps such as tackling the problem of salmonella in eggs and expanding E. Coli testing on beef products.

Car Insurance Agent Sues Insurer For “Illegal Practice”

October 27, 2012 | Gregory J. Brod

It seems every week there is a new shady situation being reported on in the California insurance law realm. While not all of these situations directly involve insurance customers, they all involve customers in an indirect manner. When shady occurrences are going on behind the scenes, it affects prices and services and shows the culture of how these insurance companies deal with unsavory situations. All of these issues end up having major impact on average consumers, who often do not know anything about the complicated behind-the-scenes activities working against them.

This week, a former insurance agent filed a class action lawsuit in the Los Angeles Superior Court against the insurance company Automobile Club of Southern California over an illegal commission scheme, according to the Insurance Journal. The commission scheme penalizes agents who sell car insurance policies to people who did not previously have an insurance policy. The lawsuit points out it is currently illegal in California, due to Proposition 103, to discriminate based on previous insurance coverage. Auto Club states that agents at its Costa Mesa call center were awarded points based on the type of customer. The lawsuit claims that this resulted in a system where if an agent sold a policy to a previously uninsured customer they received a $20 commission, while selling to someone with a good driving record and previous insurance was worth a $500 commission.

Specifically, the lawsuit alleges that Auto Club is violating Insurance Code section 1861.02(c), which prohibits insurance companies from discriminating against people who did not previously have insurance. They claim the illegal commission scheme created financial incentives that led to agents hanging up telephone calls from consumers asking for a price quote, or agents lying to certain consumers by quoting an inflated premium. The suit claims unlawful business practices and unfair business practices and seeks declaratory relief. Auto Club strongly maintains that it is, and has been, in compliance with Prop 103.