Colorado Trial Practice Blog : Colorado Injury Lawyer & Attorney : Mac Hester : Personal Injury, Auto Accident, Medical Malpractice : Serving Denver, Colorado Springs, Aurora

Personal injury claims are quite diverse. I represent injured persons by the type of claim (e.g., semi-truck accidents), the type of injury (e.g., traumatic brain injury), and by claims that are not literally personal injury claims but that are related to or arise out of personal injury claims (e.g., insurance bad faith). But the recovery of money damages from the at fault person or entity is not the only service that is provided to the client.

Clients often need help in related matters, such as finding insurance coverage, dealing with the insurance company, getting medical bills paid for, getting lost wages recovered, setting up payment plans with creditors, getting claim or lawsuit  funding when all their sources of income have run out, and reducing debts owed to medical providers and insurers who are seeking repayment of insurance benefits. I help clients with these day to day matters to help ease their stress and so they can focus on healing and returning to full activity and enjoyment of life.

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I sometimes have clients who express embarassment or reluctance in pursuing a claim for personal injury damages. I ask them why they would be embarassed or reluctant to pursue the claim. They usually don't have a definite reason. Rather, they have a feeling that there is something wrong about it - or inappropriate if not wrong. So I ask them if it is proper to ask the driver who rearended their car to pay for the repair of their car. They always without hesitation say yes that is proper.  So then I ask them how much the other driver should pay for their car damage. They seem puzzled by the question.

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I have conducted psychological/sociological experiments at parties and social functions: I mingle and talk and almost every conversation involves the question - whether asked of me or by me - "What do you do?" I usually answer that I am a lawyer or that I practice law. The reactions to this answer are quite interesting: the reactions are usually not neutral; they seem to be more positive  or negative than if I had answered, for example, that I was an account manager.

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If you are in a car accident and the car is damaged and/or you are injured (or someone else's car is damaged and/or someone else is injured), then the drivers are required by law to do certain things.

C.R.S. 42-4-1601(1): A driver involved in a car crash in which someone is injured is required to stop, stay at the scene, or return to the scene until the driver fulfills the requirements of C.R.S. 42-4-1603(1).

C.R.S. 42-4-1603(1): A driver involved in a car crash in which someone is injured is required to give name, address, and registration number of the vehicle to the other drivers. And, upon request, a driver is required to exhibit the driver's license to the other drivers. A driver involved in a car wreck in which someone is injured is also required to render aid and/or assistance to the injured person.

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There are three categories of damages in Colorado: (1) Economic; (2) Non-Economic; and (3) Physical Impairment.

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42-4-1412. Operation of bicycles and other human-powered vehicles.

(1) Every person riding a bicycle shall have all of the rights and duties applicable to the driver of any other vehicle under this article, except as to special regulations in this article and except as to those provisions which by their nature can have no application. Said riders shall comply with the rules set forth in this section and section 42-4-221, and, when using streets and highways within incorporated cities and towns, shall be subject to local ordinances regulating the operation of bicycles as provided in section 42-4-111.

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Automobile drivers don't pay much attention to bicyclists and the result can be devastating to the bicyclist, as bicycles and helmets provide very limited protection against injury in an automobile/bicycle accident.

There are many ways that bicyclists get whacked by inattentive or rude motorists, including:

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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.

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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.

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Automobile collisions, falls, and other traumatic events can cause injury to the spine. Injury can be caused by blunt force trauma (e.g., parts of the body striking the interior of the car) and/or by abnormal movement of the spine caused by collision forces. The spine is referred to in three segments: cervical (neck); lumbar (low back); and thoracic (between the cervical and lumbar).

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Q.  I didn't hit my head on anything inside the car. Can I have a brain injury?

A.  Yes. A car collision or any other traumatic event that causes rapid movement of the head can cause your brain to slam into the interior wall of your skull causing bruising and/or bleeding and/or swelling. Also, the brain is held in place by bony ridges on the interior of your skull. Sudden movement against these bony ridges can cause micro abrasions and tears. And, because the brain sits atop the brain stem, sudden movement can cause the brain to rotate on the brain stem causing injury.

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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.

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Carbon monoxide is a colorless, odorless, tasteless gas usually produced by combustion (the burning of fuel; e.g., gasoline, natural gas, oil, wood).

The most common sources of carbon monoxide are motor vehicles, furnaces, water heaters, fireplaces, woodstoves and various internal combustion engines.

Carbon monoxide is dangerous when inhaled because carbon monoxide molecules bond with hemoglobin in the blood over 200 times more easily than oxygen molecules. Oxygen is vital to proper functioning of the major organs and muscles of the body. When carbon monoxide replaces oxygen in the blood, the body is deprived of oxygen. Oxygen deprivation can cause alteration or loss of consciousness, organ damage, brain damage, coma and death.

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 My Triumph Bonneville T100

Fort Collins Colorado Motorcyle Accident Injury Lawyer Mac Hester

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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 

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• Non-economic damages: $366,250 ($250,000 adjusted for inflation). But can be doubled if "clear and convincing evidence" shown. C.R.S. 13-21-102.5.
• Punitive damages:  Not to exceed actual damages. C.R.S. 13-21-102.
• Health care providers:  $1 million present value presumptive total, but may be exceeded for good cause shown if application of the cap is unfair; $300,000 for non-economic damages. C.R.S. 13-64-302.
• Wrongful death: Economic damages not capped. Non-economic $341,250. C.R.S. 13-21-203.
• Solatium for wrongful death:   $68,250. Economic damages not capped. C.R.S. 13-21-203.5.
• Alcohol vendors, hosts:   $219,750. C.R.S. 12-47-801.
• Ski areas:  $1 million present value; $250,000 non-economic. C.R.S. 33-44-113.
• Government:  $150,000 per person; $600,000 per incident. C.R.S. 24-10-114.
• Recreational lands:  $150,000 per person; $600,000 per incident. C.R.S. 33-41-103.
• Construction professionals:  $250,000. C.R.S. 13-20-806.
• Volunteers:  Applicable vehicle liability coverage. C.R.S. 13-21-115.5.
• Reservoirs:  Must carry at least $50,000 per person and $500,000 per incident liability coverage (if so, then certain pesons are immunized). C.R.S. 37-87-104.
• Damage caused by minor:  $3500. C.R.S. 12-21-107.

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

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Allstate, over the past several years, has implemented scorched earth insurance claim and litigation tactics, which were developed in large measure by McKinsey & Company. McKinsy was inspired by military strategy and tactics, especially the strategy and tactics advocated by Colonel Boyd of the U.S. Air Force (e.g., "OODA Loop") which subsequently were adopted by the U.S. Marines and implemented in the first Gulf War ("shock and awe") and in the invasion of Iraq ("seize the initiative"; "change the game"). McKinsey decided to focus on "change the game" and Allstate adopted McKinsey's plan and implemented it as "The New Game: 'Good Hands to Boxing Gloves'". The adandonment of the good hands metaphor in favor of the boxing gloves metaphor illustrates Allstate's strategy of confrontation and combat and implementation of intimidation tactics that are designed to bludgeon claimants and claimant attorneys into submission by making pursuit of claims unpleasant, stressful, time consuming and financially, mentally and emotionally expensive and by making claims uneconomic; e.g., incentivizing claimant attorneys to decline "soft tissue" cases and/or settle them cheaply and forcing claimants to drop claims or settle them cheaply.

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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.

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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

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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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