Q. What is a wrongful death action?
A. A wrongful death action is a lawsuit for damages filed by the spouse (not ex-spouse) and/or heirs of a deceased adult or by the parent(s) of a deceased unmarried adult who had no children or by the parent(s) of a deceased unmarried minor who had no children against the person or entity that wrongfully killed the deceased.
Continue Reading...Q. If I am injured while skiing or at a ski resort, can I recover for my injuries and damages?
A. Yes, depending upon the situation. You cannot recover if you are injured as a result of an "inherent risk" of skiing. An example of an inherent risk of skiing is that skis will slide on snow and you could lose your balance and fall down and get hurt. On the other hand, a skiier slamming into your back is not, by the express terms of the Colorado Ski Safety Act, an inherent risk of skiing - otherwise, skier collisions could arguably be considered an inherent risk of skiing.
Continue Reading...An automobile collision with a semi-truck and trailer, even at low speed, generates many times the injury producing forces that are generated in a similar car to car crash - because of the much greater mass (weight) of the semi-truck/trailer (Physics geeks: See Newton's Laws of Motion - especially the 2nd Law). The collision may not have caused signigicant visible damage to the car, but there is often damage under the surface: a bent frame or bent or broken bumper supports. The collision forces that are not absorbed by the vehicle are transferred to the vehicle occupant - who is instantly propelled by the force of the collision until stopped by the seat belt or interior of the car. This instant acceleration/deceleration of the body can, and usually does, cause injury - because the crash forces cause parts of the body, usually the spine, and especially the cervical spine (neck), to move in abnormal ways and beyond the usual ranges of movement.
Continue Reading...In a rear end auto collision case, the Defendant is presumed by law to be at fault. The Defendant can overcome that presumption by proving, for example, that the Plaintiff slammed on the brakes and the Defendant couldn't stop in time.
However, in the case where the Plaintff was at a complete stop and the Defendant rear-ended the Plaintiff, the Defendant will not be able to overcome the presumption of liability. Nevertheless, Defendants rarely admit liability in litigation. They, or rather their attorneys - puppets of the insurance company, file an Answer admitting that the front of the Defendant's car struck the rear of the Plaintiff's car but they deny that the Defendant was at fault. After a year or more of litigation the case goes to trial. The Defendant has denied liability the entire way. Then, on the first day of trial the Defendant admits liability, says he's sorry, and says that he will be happy to pay what's reasonable.
The judge will not allow the Plaintiff to tell the jury that the Defendant has been denying liability from the start all the way to trial.
Q. Why would the Defendant deny liability all the way to trial and then admit liability?
A. (1) To punish the Plaintiff for filing a lawsuit by causing the Plaintiff to incur litigation expenses, delay, and frustration (Remember, the insurance company is paying for the attorney and litigation expenses, not the Defendant); (2) To teach the Plaintiff's attorney a lesson (If you file lawsuits you will be punished); (3) To advance the insurance industry agenda of punishing and preventing people from trying to recover for their injuries and damages; and (4) so that when the case goes to trial they can portrary the Plaintiff as greedy and the Defendant as magnanimous - admitting fault and being willing to pay a fair amount of damages (hoping of course that the jury is going to punish the Plaintiff by awarding little or no money damages - or at least not enought to have made the litigation economically productive).
Fort Collins Colorado Auto Accident Attorney Mac Hester
The Defendant has insurance and his or her insurance company is paying for the defense attorney and all litigation expenses.
The Defendant is not going to have to pay the verdict out of his or her own pocket.
The Defendant's insurance company will pay the verdict up to the amount of the Defendant's insurance coverage.
If the verdict exceeds the insurance coverage, then it is possible - but still unlikely - that the Defendant will have to pay some of the verdict out of his or her own pocket. It is unlikely because the insurance company will often pay the entire verdict to avoid being sued by its own insured (Defendant) for failing to settle the case for an amount equal to or less than the insurance coverage. That lawsuit by the insured against his own insurance company is called "Bad Faith Failure to Settle."
If the Plaintiff loses (verdict for the Defendant) then the Plaintiff gets nothing and is responsible for paying his or her own litigation expenses - which, in an average auto collision injury case, will be in the range of $20,000 to $40,000. AND, the Plaintiff will have to pay the litigation expenses of the Defendant - which may also be in the range of $20,000 to $40,000.
Fort Collins Auto Accident Lawyer Mac Hester
It sure would be neat if the State had a web page that listed all the statutes of limitations and notice provisions in one convenient list, but since it doesn't - at least to my knowledge - (and if I'm wrong about this then I'd love for somebody to direct me to it), I have decided to list some selected statutes of limitations and notice provisions subject, of course, to
CAVEATS AND WARNINGS: Do not rely upon this list. Consult a Colorado attorney. There are way too many variables to determine the correct statute or statutes of limitations and/or notice or notices that may apply to your claim or claims from this or any other list (I have seen far too many websites incorrectly list Colorado statutes of limitations because they didn't consider special circumstances). And, you definitely should not rely upon my paraphrasing of the title of the statutes; you must read the actual language of the statutes - and oftentimes the interpretive cases (for example: There is almost no way possible to figure out the statute of limitations for underinsured motorist claims from my paraphrasing below; you must read the interpretative cases. Even then, it's still confusing.).
Continue Reading...
Most people don't know what a lawsuit looks like, and that may be a good thing. But for those curious to see what a lawsuit (the complaint) actually looks like, I decided to post an example here. It's a simple auto accident injury form complaint for Colorado District Court (The caption in this example form is different from an actual complaint caption; it has been simplified). Of course, this is just an illustrative form and should not be used "as is" in any particular case. This complaint involves one Plaintiff and only two Defendants and only three claims for relief, so it's pretty simple. But don't let the simplicity fool you, seemingly simple cases can involve complex legal considerations that are not necessarily visible in the complaint. An attorney should still be retained to draft a complaint specifically tailored to the individual case.
Continue Reading...Med-Pay insurance pays for medical expenses incurred as a result of auto accidents. Your Med-Pay insurance covers the driver and passengers in your covered vehicle but does not cover the occupants of the at fault driver’s vehicle. Med-Pay coverage is essential if you do not have health insurance. Med-Pay is highly beneficial even if you do have health insurance, as Med pay covers medical expenses that are often not covered by health insurance and also may be used to pay health insurance co-pays and deductibles.
Continue Reading...An oft stated maxim in litigation is, “Relevance for purposes of discovery (e.g., interrogatories, requests for production) is different from relevance regarding admissibility of evidence at trial.” And sometimes the proponent of that maxim also adds that the admissibility of the requested evidence is not a consideration in discovery. That is where the proponent would be wrong.
Continue Reading...Your client's auto crash injury medical bills were paid by the client's employer's health insurance. Your client aks: "My health insurer says that it is entitled to 100% reimbursement from my settlement. Can they do that?"
Indeed, can they do that?
If you're giving one word answers to that question then contact your malpractice carrier. Whenever I get that question I have to psych myself up to deliver the ERISA lecture as well as to prepare the client to receive it. I won't deliver the ERISA lecture here, but I will give a synopsis.
Continue Reading...Most attorneys and judges don't understand negligence per se. They treat it the same as negligence; i.e., at trial, they talk about the "reasonable person" and the "reasonable care" standard of liability with no differentiation between negligence and negligence per se. But the reasonable person/reasonable care standard does not apply to many negligence per se claims. Why?
Because the standard of care in a negligence per se claim based on a statute is the standard of care contained in the statute. And, the standard of care is often not the reasonable person standard.
Take, for example, C.R.S. 42-4-702 (left turn statute): "The driver of a vehicle intending to turn left within an intersection...shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection...."
The left turn statute does not contain a standard of reasonable care.
Consider, on the other hand, C.R.S. 42-4-1402 (careless driving statute): "Any person who drives any motor vehicle, bicycle, or motorized bicycle in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving."
The careless driving statute does contain a standard of reasonable care.
So how should you present (or exclude) evidence and law on a negligence per se claim that doesn't have a reasonable care standard?
Continue Reading...NOTE: This is only a summary of certain damage "caps" and should not be solely relied upon. The applicable statutes must be reviewed carefully, as the statutes contain conditions, qualifications, and exceptions; e.g., the Governmental Immunity Act has a strict 180 day notice requirement that must be formally complied with.
Fort Collins Colorado Automobile Injury Attorney Mac Hester
At common law, compensation paid to the injured person from a collateral source, independent of the tortfeasor, did not reduce the damages owed by the tortfeasor.
Now, by statute (C.R.S. 13-21-111.6), the trial court will reduce the verdict by the amount of collateral sources - except that the verdict cannot be reduced by compensation paid to the plaintiff as a result of a contract entered into and paid by or on behalf of the plaintiff. Quite often this "contract exception" swallows up the general rule of the statute, as shown in the cases below.
Continue Reading...With the repeal ("sunsetting") of Colorado's No-Fault legislation on July 1, 2003, Colorado reverted to the "tort" system.
Claims arising out of pre July 1, 2003 motor vehicle crashes must proceed under the "no-fault" system, while claims arising out of post July 1, 2003 motor vehicle crashes must proceed under the "tort" system.
Colorado has a three year statute of limitations for personal injury claims arising out of motor vehicle incidents, so most "no-fault" cases were gone by July 1, 2006 (But pre July 1, 2003 claims that were not filed prior to July 1, 2006 are not necessarily SOL; e.g., minor's claims).
Under the prior no-fault system, an injured person had to satisfy one of several "threshold" requirements in order to maintain an action against the negligent party. Under the current tort system, there is no "threshold" to satisfy prior to filing a suit against the negligent party.
Colorado's statutorily mandated minimum auto liability coverage is $25,000.
Negligence claims in Colorado require the four elements that were drilled into your skull during Torts class in law school: (1) Duty; (2) Breach of duty; (3) Causation; and (4) Damage.
The standard of care is the usual reasonable person standard; i.e., a person is required is exercise the degree of care or skill that a reasonable person would have exercised in the same or similar circumstances.
Colorado is a comparative negligence state. The plaintiff cannot recover if his/her percentage of fault is greater than or equal to the defendant's. At trial, the jury is required to assign percentages of fault. With one plaintiff and one defendant, it's a 50/50 rule. A 50/50 verdict is a defense verdict. Fortunately, that outcome can be explained to the jury.
Pro Rata liability: By statute, a defendant is liable only for his/her percentage of fault, and the plaintiff cannot recover damages commensurate with his/her percentage of fault.
Non-Parties at Fault: The defendant can designate persons or entities who are not parties to the action but who may share some percentage of fault.
The plaintiff's percentage of fault is compared with the total of the defendants' fault. For example, if the plaintiff is 30% at fault, Defendant A is 50% at fault, Defendant B is 10% at fault, and Non-Party is 10% at fault and the verdict is for the plaintiff in the amount of $100,000, then Defendant A is liable for $50,000, Defendant B is liable for $10,000, and Non-Party is not legally liable because the Non-Party was not a party to the action and did not have his/her day in court. The plaintiff recovers $60,000.
NOTE: (1) There is "pure" comparative fault in Product Liability claims. (2) The Colorado legislature preempted all common law claims for "premises liability" with the enactment of the "Premises Liability" statute - which made an action under the statute the exclusive remedy for injuries caused by conditions or activities upon land. The inartfully drafted statute and the subsequent cases attempting to interpret and apply the statute have created confusion and chaos regarding negligence claims and defenses when persons are injured on premises. This will be addressed in a subsequent "Premises Liability " article.
Fort Collins Injury Attorney Mac Hester
I am, as I am typing this post, looking out my window at the diamond shaped east face of Longs Peak, the most majestic of the 54 14'ers in Colorado, wondering why I am writing about it instead of climbing it. A natural question for a climber, to be sure, but a curious one for the publisher of a law blog. But, of course, this is a rhetorical question that segues quite nicely into why I am writing this blog. There are various reasons to write a law blog - from the mercenary (advertising one's talents and experience, marketing to potential clients and counsel for cases and referrals, stroking one's own ego) to the charitable (helping injured people; helping fellow trial lawyers) to the personal (self expression). I must admit that all of these reasons factor into why I have launched this blog, but the "real" reason is more basic. The basic reason is resonance. Climbing "resonates" with something basic in my being, so I not only love to do it but also to talk and write about it. Trial practice also resonates with me, so I am compelled to talk and write about it. Up until now, I have satisfied this basic urge through trial lawyer mail lists and discussion groups, but the blogosphere has opened up a whole new world for me. I hope that some of the topics or entries in this blog resonate with you. I have strongly held opinions and I'm not going to pretend to be neutral or objective on everything (or anything, for that matter) - which I suppose is a good thing, as neutrality and objectivity is desireable for news reporting but boring in the blogosphere. Please feel free to comment or offer your opinions. Welcome to the Colorado Trial Practice Blog.
Fort Collins Personal Injury Lawyer Mac Hester
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