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.

The reason that they are puzzled is that it would seem to go without saying that the at fault driver would pay for all of the car damage that they caused. So I ask the client if the at fault driver should pay 50% of the damage, 100% of the damage, or some other percentage of the damage. They say 100%. I ask them why. They say because the other driver caused all the damage so he/she should pay for all of it. Then I ask them that if their child had suffered a broken leg in the collision then should the at fault driver pay for it. They say yes. I ask them how much. They say all of it. I ask why. They say because the other driver caused the injury so he/she should have to pay for all the medical expenses. 100%? Yes, 100%. What if your teenage child missed a week of work and had lost wages of $100. Should the at fault driver pay anything to your teenager for lost wages? Yes. How much? $100. Why? Because that is the amount of wages that were lost. I then ask whether the health of their children is important to them. They say yes absolutely. I ask whether their children's activities are important to them. Yes, they say, my daughter's music or dance or soccer means the world to her. My son's football or skiing or tennis  means the world to him. Does it mean anything to you? Yes, of course, it means the world to me. I would do anything for my children's happiness. So I say, anything, except maybe pursuing a personal injury claim on their behalf because there's something wrong about it? They seem troubled and think in silence for a while. Finally, they say that pursuing a personal injury claim on behalf of their children would be appropriate. So then I ask them if they still feel that it would be inappropriated for them to purse a personal injury claim on their own behalf.  After a while, they say that they see the point that I am making but still feel uncomfortable about pursuing a personal injury claim. I ask them why. They don't know. But I know.

The reason that they are uncomfortable about pursuing a personal injury claim for their injuries and damages is that they have been brainwashed by the insurance industry and big business to feel this way. Insurance and business propaganda against personal injury claims and lawsuits is so pervasive and powerful that many - probably most - people feel that there is something wrong or inappropriate about asking the person who hurt you to make it up to you. Nobody really disputes the notion that the at fault driver should pay for the vehicle damage that he/she caused. Few people dispute the notion that the at fault driver should pay for the medical expenses and lost wages that he/she caused. However, many people dispute the notion that the at fault driver should pay for the actual physical injury caused, the pain resulting from the physical injury, the stress and strain caused by being injured, being in pain, being out of work, being pursued by collections agencies for unpaid medical bills, and for the loss of ability to engage in hobbies or activities that the injured person formerly enjoyed. I find  this very strange.

When I ask people why injured people should not be able to recover for these types of damages, the answers that I usually get involve "personal responsibility" or "stuff happens" or some variation of these responses. So I ask them, did you drive your car here today? They say yes. So if somebody backs into your car in the parking lot and dents it then that is a stuff that happened so you are not going to ask them to pay for the repair? No, they say, they will ask the other driver to pay for it. But, I say, you are not being personally responsible. You are making the other driver take responsibility. The other driver is responsible for the damage so he should pay for it. Oh, I say, I get it. The other driver should pay for your car damage but not for your medical bills if you had been standing by the car and got hit when he backed into your car. No, he should pay for my medical bills. Why? Why don't you take personal responsibility for your own medical bills? Because the other driver was responsible for breaking my leg so he should pay for fixing it. But the at fault driver should not pay for your inability to play golf now, right? This is where the person is in a quandry. He used to play golf almost every weekend. Now he can't play at all. It is priceless to him. But he has argued that people should not recover damages for their lost abilities and lost hobbies. So sometimes the person will say something like the at fault driver should pay something but not millions of dollars like that lady got from McDonald's for spilling coffee on herself. Or, the person will say that injured people should receive nothing in damages for their lost abilities, lost hobbies, and impairment of the quality of their life. So that is a matter of principle? Yes, that is a matter of principle. So your daughter who is a soccer star in the competitive soccer leagure and who just might make have made it onto the Olympic Development Squad should get nothing for her lost dreams and loss of enjoyment of life due to the broken leg that never healed properly, but you should get your BMW bumper and quarter panel paid for by the at fault driver? Your BMW is worth more than your daughter's soccer future and enjoyment of life? No, my daughter's soccer future is worth and enjoyment of life is worth more than my BMW. But you got paid $4000 for the repair of your BMW and your daughter got nothing for her broken leg and lost dreams and lost soccer future. No, I didn't get $4000. The BMW just got repaired. Right, I say, your car was repaired and made whole again. However, your daughter was not. She had knee surgery, but the at fault driver did not pay for it. You paid for it. And your daughter still has a bum leg. And can't play soccer. And won't play on the Olympic  Development Squad. In fact, won't play competitive soccer ever again. And her grades have dropped. She is borderline depressed. She is in danger of losing that academic scholarship she was going to fall back on if she didn't get a soccer scholarship. But that is just tough. Stuff happens. She should take personal responsibility.

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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.

The negative reactions are usually more pronounced than the postive reactions. Negative reactors often tell a lawyer joke. I usually laugh and maintain good humour, but I wonder why people think that is is okay to denigrate the profession of someone that they have just met. I have wanted to conduct the experiment of putting the shoe on the other foot: Tell a nasty joke about the profession of the person who I just met before they have told a lawyer joke and observe their reaction. But I have not had the guts to do it. I guess that I am not a true scientist. However, I have conducted that experiment after the other person has, in effect, given me permission to conduct that experiment. Here is what I have done on a few occasions: I decided in advance to respond to a lawyer joke with a joke about the profession of the person I just met not out of anger but as a pure experiment. The person tells a lawyer joke. I laugh. Then I good naturedly tell a joke about that person's profession. My experience has been that the other person is very surprised to hear their profession belittled, even if in jest. They are usually a little offended and their realizations about what just happened vary quite a bit. Only a couple of people "got" what I was doing. The others were disconcerted, although most of them admitted that tit for tat is only fair (but I still suspect that they will continue to feel that lawyers are fair game while their profession is not). A couple of people got upset and terminated the conversation and quit my company - no doubt having their opinions of lawyers confirmed in their minds. I haven't even got to personal injury law yet. I am quite amazed when people I have just met think that it acceptable to refer to me as an ambulance chaser. I usually just laugh it off but I have conducted a couple of experiments about that as well. I have acted hurt. The person was slightly apologetic, but I don't believe was completely sincere in the apology. Another time I plainly stated that it was rude to insult a person who you have just met. The insulter was not apologetic at having made the comment but allowed that I could be an exception to the rule. My response was that it's not a rule that lawyers conform to the characteristics of the joke. Maybe my experiments are not true experiments. Maybe I'm a little thin skinned. I don't know. What I do know is that most personal injury lawyers and "trial lawyers" good naturedly take a lot of crap from rude people and don't want to "rock the boat" for fear of reinforcing the opinions of these people. However, my experience has been that these same people usually want the aggressive, ethically challenged lawyers that they denigrated when they need legal representation. Most personal injury lawyers and trial lawyers just try to avoid these situations and let things slide by. In fact, I think that most lawyers believe "the less said the better." But I don't believe that. I believe that people will continue to be prejudiced and rude if they are not called on it. I grew up in South Carolina in the 60's and 70's so I know about name calling and its consequences.

Fort Collins Personal Injury Lawyer and Trial Lawyer Mac Hester

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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.

To move or not move the car: If there are signs directing drivers to move crashed cars from traffic, then the drivers should move the cars from traffic. If there are no such signs, then it's a judgment call. If it was a very minor collision with probably no injuries and it's rush hour traffic, then maybe the car should be moved from traffic. If it was a huge collision involving serious injuries, then the cars probably should not be moved from traffic. Generally, it is preferable to not move the cars so as to preserve evidence for the investigating authorities.

Other things to do and not do:

DO check on yourself and the passengers of  your car for injury.

DO check on the other driver(s) and passengers for injury.

DO call 911 if someone is injured.

DO what you can to make the scene safe.

DO obtain names, addresses and phone numbers of all involved drivers, passengers, and witnesses.

DO take photos of the cars and involved persons with your cell phone camera.

DO provide detailed information to the investigating authorities (CAVEAT: A criminal defense attorney might advise you otherwise depending upon your potential criminal culpability).

DO get checked out medically if you are injured or not feeling well.

DO call your insurance agent to report the crash after you have done the above.

DO check on all insurance coverage that is available to you; e.g., Medical Payments coverage, Uninsured Motorist, Underinsured Motorist, health insurance, etc.

DO call  a lawyer if you have questions about the law, insurance, insurance claims, or  your rights and responsibilities.

DO NOT refuse ambulance transport to the hospital if you are injured.

DO NOT refuse medical treatment or delay in getting medical treatment if you are injured or not feeling well.

DO NOT say you are doing okay if you are not doing okay.

DO NOT agree to be interviewed by the at fault driver's insurance company about the accident and your injuries. It is okay to discuss getting a loaner or rental car and your car repaired or replaced.

DO NOT agree to have your statement recorded over the phone or in person by the at fault driver's insurance company about the accident or your injuries. It is okay to discuss getting a loaner or rental car and your car repaired or replaced.

DO NOT settle your injury claim immediately. There's at least two reasons not to settle immediately: (1) It is illegal for insurance companies to immediately settle or attempt to settle injury claims; and (2) Your injuries or condition might not be apparent immediately or your injuries or condition might get worse.

DO NOT trust the at fault driver's insurance company to treat you fairly or to compensate you fairly for your injuries. The at fault driver's insurance company's loyalty is to its insured, the at fault driver, not to you. The insurance company is a for profit corporation that strives to pay claims as cheaply as possible in order to be profitable.

DO NOT let the at fault driver's insurance company treat you disrespectfully because you want to be reimbursed and compensated for your injuries and damages. They probably paid full value or close to it for your car damage. Is your body and life less valuable than your car? No.

DO call an experienced personal injury attorney if the at fault driver's insurance company is not treating you fairly. Or simply to learn more about your rights.

Fort Collins Colorado Car Accident Lawyer Mac Hester

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All judges and almost all lawyers think that evidence of liability insurance is generally not admissible at trial. However, they are wrong.

Colorado Rule of Evidence 411 provides that evidence of liability insurance is admissible for any reason in the world - except one: to show negligence or wrongful conduct of the defendant.

Rule 411 states that evidence of liability insurance cannot be admitted to show negligence or wrongful conduct. Then, Rule 411 sets forth a listing of possible reasons for the admission of liability insurance including proof of agency, ownership, control, or bias or prejudice of a witness. The list is non-inclusive. Consequently, Rule 411 provides that evidence of liability insurance can be admitted for a potentially infinite number of reasons but can be excluded for only one reason.Thus, Rule 411 is the most liberal of all the evidence rules.

It is amazing that this incredibly liberal rule has come to be considered so incredibly restrictive regarding the admission of liability insurance when the rule so clearly states that the evidence is potentially admissible for any reason except for one.

Q.  What can account for this blatant misinterpretation of Rule 411?

A.  Rule 403.

Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,  or needless presentation of cumulative evidence.

All defense lawyers and almost all judges go apopletic when liabilty insurance is mentioned during trial. I have never heard liability insurance being mentioned during trial regarding the fault of the defendant; rather, every mention that I have heard by a prospective juror or by a witness has concerned coverage - which is not a fault issue. In fact, the existence of liability insurance has little to no relation to the defendant's fault. Consequently, Rule 411 is almost never violated and there is only a small possibility that it will be violated.

So why the apoplexy? The answer is that it has nothing to do with Rule 411 and everything to do with Rule 403- specifically, the danger of unfair prejudice component of Rule 403, The danger is that the jury may find liability and award damages or more damages if they know that the defendant is insured when they otherwise might not find liability or might award lower damages. Thus, the mention of liability insurance presents a danger of unfair prejudice.

Conclusion: Judges (usually correctly) exclude evidence of liability insurance pursuant to Rule 403 (or pursuant to Rule 402: exclusion of irrelevant evidence) all the while mistakenly believing that they are excluding it pursuant to Rule 411.

If the evidence of liability insurance is usually corrected excluded, then what's the big deal about Rule 411?

The big deal is that judges should know the rules and apply them correctly. The big deal is that lawyers should know the rules and argue them correctly. I have never heard a civil  defense lawyer argue Rule 411 correctly. In fact, every argument I have ever heard from a civil defense lawyer about Rule 411 is that Rule 411 automatically excludes evidence of liability insurance except to show proof of agency, ownership, control, or bias or prejudice of a witness. That argument is incorrect because Rule 411 automatically includes evidence of liability insurance for any reason except to show fault. Resort must be had to other Rules (e.g., 403 or 402) in order to exclude evidence of liability insurance.

I don't recall hearing any plaintiff's lawyer arguing Rule 411 correctly before I started making a big deal out of it. It is one of my pet peeves. Or, I should say that one of my pet peeves is when a rule, or case, or law is perversely twisted into its opposite meaning or a totally erroneous meaning through laziness and sloppiness combined with inertia and indifference to correct application. In other words, the erroneous interpretation of Rule 411 is symptomatic of a larger problem as to the diligence, or lack thereof, in interpreting, analyzing, and applying rules, cases, and law. Rule 411 is simply the most blatant illustration. 

 Fort Collins Insurance Lawyer Mac Hester

Representation in insurance claims, denial of insurance claims or coverage, breach of contract, and insurance bad faith.

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

ECONOMIC

Medical Expenses: (1) Past; (2) Future.

Wage/Income Loss: (1) Past; (2) Loss of Earning Capacity/Loss of Future Wages/Income.

Incidental expenses.

Other provable economic losses.

NON-ECONOMIC (popularly referred to as "pain and suffering")

Physical and mental pain and suffering, inconvenience, emotional stress, impairment of the quality of life and other provable non-economic losses.

PHYSICAL IMPAIRMENT

Permanent injury that materially impairs the body or the body's functioning.

Fort Collins Personal Injury Lawyer Mac Hester

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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.

 (2) It is the intent of the general assembly that nothing contained in House Bill No. 1246, enacted at the second regular session of the fifty-sixth general assembly, shall in any way be construed to modify or increase the duty of the department of transportation or any political subdivision to sign or maintain highways or sidewalks or to affect or increase the liability of the state of Colorado or any political subdivision under the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S.

(3) No bicycle shall be used to carry more persons at one time than the number for which it is designed or equipped.

(4) No person riding upon any bicycle shall attach the same or himself or herself to any motor vehicle upon a roadway.

(5) Any person riding a bicycle shall ride in the right-hand lane. When being overtaken by another vehicle, such person shall ride as close to the right-hand side as practicable. Where a paved shoulder suitable for bicycle riding is present, persons operating bicycles shall ride on the paved shoulder. These provisions shall apply, except under any of the following situations:

(a) When overtaking and passing another bicycle or vehicle proceeding in the same direction;

(b) When preparing for a left turn at an intersection or into a private road or driveway;

(c) When reasonably necessary to avoid hazardous conditions, including, but not limited to, fixed or moving objects, parked or moving vehicles, pedestrians, animals, or surface hazards.

(6) (a) Persons operating bicycles on roadways shall ride single file; except that riding no more than two abreast is permitted in the following circumstances:

(I) When riding two abreast will not impede the normal and reasonable movement of traffic; or

(II) When riding on paths or parts of roadways set aside for the exclusive use of bicycles.

(b) Persons riding two abreast shall ride within a single lane.

(7) A person operating a bicycle shall keep at least one hand on the handlebars at all times.

(8) (a) A person riding a bicycle intending to turn left shall follow a course described in sections 42-4-901 (1), 42-4-903, and 42-4-1007 or may make a left turn in the manner prescribed in paragraph (b) of this subsection (8).

(b) A person riding a bicycle intending to turn left shall approach the turn as closely as practicable to the right-hand curb or edge of the roadway. After proceeding across the intersecting roadway to the far corner of the curb or intersection of the roadway edges, the bicyclist shall stop, as much as practicable, out of the way of traffic. After stopping, the bicyclist shall yield to any traffic proceeding in either direction along the roadway that the bicyclist had been using. After yielding and complying with any official traffic control device or police officer regulating traffic on the highway along which the bicyclist intends to proceed, the bicyclist may proceed in the new direction.

(c) Notwithstanding the provisions of paragraphs (a) and (b) of this subsection (8), the transportation commission and local authorities in their respective jurisdictions may cause official traffic control devices to be placed on roadways and thereby require and direct that a specific course be traveled.

(9) (a) Except as otherwise provided in this subsection (9), every person riding a bicycle shall signal the intention to turn or stop in accordance with the provisions of section 42-4-903; except that a person riding a bicycle may signal a right turn with the right arm extended horizontally.

(b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the bicycle before turning and shall be given while the bicycle is stopped waiting to turn. A signal by hand and arm need not be given continuously if the hand is needed in the control or operation of the bicycle.

(10) (a) A person riding a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian. A person riding a bicycle in a crosswalk shall do so in a manner that is safe for pedestrians.

(b) A person shall not ride a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk where such use of bicycles is prohibited by official traffic control devices or local ordinances. A person riding a bicycle shall dismount before entering any crosswalk where required by official traffic control devices or local ordinances.

(c) A person riding or walking a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall have all the rights and duties applicable to a pedestrian under the same circumstances, including, but not limited to, the rights and duties granted and required by section 42-4-802.

(11) (a) A person may park a bicycle on a sidewalk unless prohibited or restricted by an official traffic control device or local ordinance.

(b) A bicycle parked on a sidewalk shall not impede the normal and reasonable movement of pedestrian or other traffic.

(c) A bicycle may be parked on the road at any angle to the curb or edge of the road at any location where parking is allowed.

(d) A bicycle may be parked on the road abreast of another bicycle or bicycles near the side of the road or any location where parking is allowed in such a manner as does not impede the normal and reasonable movement of traffic.

(e) In all other respects, bicycles parked anywhere on a highway shall conform to the provisions of part 12 of this article regulating the parking of vehicles.

(12) (a) Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense; except that section 42-2-127 shall not apply.

(b) Any person riding a bicycle who violates any provision of this article other than this section which is applicable to such a vehicle and for which a penalty is specified shall be subject to the same specified penalty as any other vehicle; except that section 42-2-127 shall not apply.

(13) Upon request, the law enforcement agency having jurisdiction shall complete a report concerning an injury or death incident that involves a bicycle on the roadways of the state, even if such accident does not involve a motor vehicle.

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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:

Cars turning into the path of a bicycle because the driver, not seeing an oncoming car, assumes that there is no oncoming traffic;

Car drivers or passengers open car doors into the path of oncoming bicycles;

Cars sideswiping or veering too close to bicycles causing the cyclist to fall while avoiding the car or causing the cyclist to run into parked cars;

Cyclists getting hit by side mirrors;

Cars following too closely;

Motorists not giving enough leeway to children on bicycles (A child's bike riding may be unpredictable and an adult should be watchful for the child's unpredictable riding).

Injured bicyclists often don't get a fair shake after they have been injured. Many drivers resent bicyclists because they feel that bicyclists flaunt traffic rules that they have to follow. And unfortunately this attitude is sometimes shared by law enforcement personnel. Consequently, auto/bike accidents should be swiftly and thoroughly investigated so that accurate evidence can be obtained. And you should consider retaining an attorney to track down sources of coverage for your medical bills, lost wages, and other damages. Sources of coverage and compensation may include the at fault driver's liability insurance or the bicyclist's own Medical Payments (Med Pay) insurance or uninsured/underinsured motorist (UIM) insurance.

Fort Collins Colorado Bicycle Bike Accident Injury Lawyer Mac Hester

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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.

Q. Who is an “heir” under the Wrongful Death Act?

A.  Lineal descendants (children, grandchildren): Yes.

     Collateral descendants (brother, sisters, aunts, uncles): No.

     Parent(s) of a deceased unmarried adult or minor who had no children: Yes

Q.  Who can file a wrongful death action and when?

A. 

During the first year after death: The spouse has an exclusive right to file. But the spouse may elect in writing to allow the heirs to join in the action. If there is no spouse, then the heirs may file an action immediately.

During the second year after death: The spouse and heirs have equal standing to file.

After the second year: The statute of limitations for wrongful death is two years, so the failure to file the wrongful death action within two years would bar all rights of recovery if the defendant asserted the statute of limitations as an affirmative defense.

Within a year or even less if the killer also died: Claims against the deceased killer’s estate have to be filed with the applicable probate time periods – which may be a year or even less. However, liability insurance coverage will probably still be available to be recovered.

Q. Who gets the money?

A. The plaintiffs in the wrongful death action recover the money damages, but all qualified heirs are entitled to share in the damages even if they are not named in the lawsuit. Parents may recover damages, but the division of the money may be affected by divorce and/or separation agreements, orders, or issues. There are other situations that affect who gets the money and how much. A detailed evaluation of all potential payees must be done.

Q. What damages can be recovered and how much?

A.

Economic damages are recoverable. There is no “cap.” Economic damages include funeral expenses, loss of the deceased’s wages over his/her expected work life expectancy, less the deceased’s personal consumption, calculated to present value, and other pecuniary losses.

Non-economic damages are recoverable. The current inflation adjusted “cap” is $341,250. Non-economic damages are for grief, sorrow, and loss of companionship.

Solatium damages are recoverable. The current inflation adjusted amount is $68,250. If the plaintiff elects to pursue solatium damages, then the plaintiff does not have to provide evidence of grief, sorrow, and loss of companionship. The solatium amount is paid upon proof of liability. Solatium damages are not subject to reduction by the comparative negligence or pro rata liability statutes.

“Felonious Killing” damages are recoverable if the killing would be considered first or second degree murder or manslaughter. An actual criminal conviction is not necessary. The Wrongful Death Act non-economic damages cap is not applicable if the death was the result of a felonious killing.

Punitive damages are recoverable if the plaintiff proves beyond a reasonable doubt that the defendant’s conduct was willful and wanton. The amount of punitive damages cannot exceed the amount of actual damages.

Other damage limitations: Colorado was cursed with tort reform in the 1980’s and afterwards in which severe limitations have been placed on the ability of injured persons to be fairly compensated for the injuries, deaths, and damages inflicted upon them and their families by negligent and reckless persons and corporations. For example, if the deceased was wrongfully killed by the State of Colorado or a subdivision of the state, then damages are limited to $150,000. There are also severe restrictions in medical malpractice and other areas.

Q. Can there be more than one wrongful death action?

A. No. There can only be one wrongful death action filed. This is called the “one action” rule. All claims against all defendants must be brought in one action. If a second action is filed because, for example, an at fault party was not included in the first action then the second action will be dismissed and the defendant in the second action will go free - not to mention that the plaintiff will not have recovered damages attributable to the second action defendant in the first action and that the first action defendants are liable only for their respective shares of fault and not for any fault of the omitted at fault party.

Q. Can medical expenses be recovered?

A. No, not in a Wrongful Death action. Yes, in a “Survival” action.

Q. What is a “Survival” action?

A. A survival action is a lawsuit filed by the personal representative of the deceased’s estate to recover the economic damages that accrued between the date of injury and the date of death. Lost wages and medical expenses are examples. Subrogation and reimbursement claims by hospitals, medical providers, health insurers, Medicaid, Medicare and other must be taken into consideration.

Q. Can there be a wrongful death claim for the death of a fetus?

A. Yes, if the fetus was “viable” at the time the fetus suffered injury that caused its death. This is a medical determination. Colorado law does not specify an arbitrary date of viability. The parents will have to present medical evidence that the fetus was viable.

Fort Collins Colorado Wrongful Death Lawyer Mac Hester

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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.

Q.  What are the  types of ski injury cases?

A.  (1) Skier collision: There is a presumption under Colorado law that the uphill skier is at fault in a collision because an uphill skier should usually be able to avoid colliding with a downhill skier. However, the presumption can be overcome by showing that the downhill skier, rather than the uphill skier, was at fault. (2) Ski lift operation: If a person is injured by a defective ski lift, then the injured person can recover, but that is not very common. The more common situation would involve negligent operation of the lift by, for example, not stopping the lift and a skier is dragged a long way. (3) Equipment: Injury as a result of improper setting of bindings and improper functioning of the bindings. (4) Instruction: Example -  It would be improper for a ski instructor to take brand new skiers down a black diamond run. (5) General negligence: Injury from risks that are not inherent or integral to skiing. Example: The wood planks on a deck are rotten and break and a person is injured.

Q.  What are a skier's duties?

A.  Colorado Revised Statute 33-44-109.

      (1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability. Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier's acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.

      (2) Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him.

      (3) No skier shall ski on a ski slope or trail that has been posted as "Closed" pursuant to section 33-44-107 (2) (e) and (4).

      (4) Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.

      (5) Each skier has the duty to heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others. Each skier shall be presumed to have seen and understood all information posted in accordance with this article near base area lifts, on the passenger tramways, and on such ski slopes or trails as he is skiing. Under conditions of decreased visibility, the duty is on the skier to locate and ascertain the meaning of all signs posted in accordance with sections 33-44-106 and 33-44-107.

      (6) Each ski or snowboard used by a skier while skiing shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard become unattached from the skier. This requirement shall not apply to cross country skis.

      (7) No skier shall cross the uphill track of a J-bar, T-bar, platter pull, or rope tow except at locations designated by the operator; nor shall a skier place any object in such an uphill track.

      (8) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, the skier shall have the duty of avoiding moving skiers already on the ski slope or trail.

      (9) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person's ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug or while such person is under the influence of alcohol or any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug.

      (10) No skier involved in a collision with another skier or person in which an injury results shall leave the vicinity of the collision before giving his or her name and current address to an employee of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision; in which event the person so leaving the scene of the collision shall give his or her name and current address as required by this subsection (10) after securing such aid.

      (11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6).

      (12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars.

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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).

 The spine provides the vertical structure and support for the body and also acts as the conduit for the spinal cord which runs from the brain down through the spine with nerve roots branching off at every level of vertabrae and running to every part of the body. Electro-chemical signals are sent back and from from every part of the body to and from the brain. The proper functioning of the brain and the body are dependent upon these signals being transmitted correctly. Also, these signals provide us with useful information (e.g., The stove is hot. Move your hand!). When a part of the spine is injured, signals - including the feeling of pain - are transmitted to the brain. The body, in conjunction with the brain, then reacts in various ways to protect us (e.g., immobilization: when the neck is injured, the neck muscles may not let us move our neck very much until it is healed sufficiently to resume normal movements).

A very common mechanism for spinal injury is rear end collisions. In a rear end collision, a stopped vehicle (target) is struck by a moving (bullet) vehicle. As you may remember from science class, all energy is conserved; there is no loss of energy in any action. As applied to a car crash, that means that the energy (momentum) of the bullet car is transferred to the target car. The target car is almost instantly propelled forward by the collision, but the driver experiences a slight lag (a micro-second): his or her body is not propelled forward until the seat back pushes him or her forward. The driver's body is pushed forward but the driver's head lags behind as the body is knocked out from under the head. The head extends (and hyperextends if there is no headrest) until its movement is stopped by the maximum range of the neck (unless stopped earlier by the headrest) and then it whips forward (hence the term "whiplash"). The body's forward movement is stopped either by the seat belt or by the steering wheel. When the body stops, extra momentum is transferred to the head as it is moving forward (flexion) increasing its speed until is is stopped by the maximum range of the neck (hyperflexion) or by the head hitting the steering wheel or interior of the car. (Seatbelts prevent or reduce injury from the body and/or head striking the interior of the car but increase the severity of injury to the cervical spine).

Until a few years ago, it was thought that the cervical injuries experienced in rear end collisions were caused by the hyperextension/hyperflexion of the cervical spine. However, recent research has demonstrated that spinal injuries are most likely caused by abnormal movements of the spine and abnormal pressures generated in the spine by compression. The normal movement of the cervical spine is a smooth arc. However, in a rear end collision, the cervical spine moves in an "S" curve. That is, the lower segment is propelled forward with the upper segment lagging behind: an "S" is formed in the spine. The joints of the vertabrae (the facet joints) do not move together in a smooth arc but instead slam together, which can cause injury. As the spine is formed into an abnormal S curve, the discs (shock absorbers between the vertabrae) are compressed. Compression can cause injury in two ways: (1) If the compression is severe and the disc is weak, then the disc material may stretch and/or tear (in extreme cases the disc may rupture); and (2) compression causes electro-chemical changes in the spine, which affect the proper function of the spinal system and its interaction with the body and the brain.The effects of spinal injury range from slight (minor neck stiffness) to catastrophic (paralysis or even death if, for example, the spinal cord is severed).

Because spinal injury is usually caused by abnormal movement and compression of the spine rather than by blunt force trauma to the spine, you should not be fooled by insurance adjusters and defense attorneys who say that you cannot be injured because there is no damage to your car. First of all, there usually is damage; it is just not visible. The frame may be bent or the bumper supports may be bent or broken. Second, the stiffer the bumper the more force transferred to your body. You are more likely to be injured and to be injured to a greater extent if you are in a vehicle with a stiff, rigid bumper and stiff, rigid frame. So in many cases the lack of vehicle damage means a greater likelihood of injury.

Fort Collins Colorado Spine and Spinal Injury Lawyer Mac Hester

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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.

Q.  I didn't lose consciousness in the crash. Can I have a traumatic brain injury?

A.  Yes. First, a loss of consciousness is not a requirement for a diagnosis of traumatic brain injury (An alteration of consciousness is). Second, many victims of traumatic brain injury actually did have a brief loss of consciousness but just were not aware of it.

Q.  I just had a concussion - not a brain injury, right?

A.  "Concussions" are traumatic brain injuries. While many concussions are mild and many people are able to resume activities fairly quickly (like returning to play in a football game), concussions nevertheless are traumatic brain injuries and must be taken seriously. Medical examination is imperative even for mild concussions.

Q.  What are the symptoms of traumatic brain injury?

A.  Some of the symptoms of traumatic brain injury include: alteration of consciousness, loss of consciousness, blackout, seeing stars, amnesia (not remembering the actual traumatic event), dizzyness, loss of balance, visual problems, memory problems, lack of focus, loss of concentration, problems with multi-tasking, irritability, personality changes. If you have some of these symptoms from a traumatic event, you should get checked out by a doctor with traumatic brain injury experience - preferably a neurologist or neuro-psychologist.

Fort Collins Colorado Traumatic Brain Injury Lawyer Mac Hester

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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.

Trucking companies bring in insurance investigators, adjusters, and even attorneys immediately upon the happening of a car/semi-truck crash in order to more favorably set the stage for their defense of potential claims against them. On the other hand, the person injured in the crash almost never has anyone on their side looking out for them. Oftentimes an attorney will not be brought in for the injured person until after much of the evidence (vehicle damage) has been altered (repaired) or lost (vehicle sold). It is essential that the evidence be preserved either by retention of the car or at least by several photographs of the vehicle damage from various  angles. And it is usually beneficial to bring in an attorney earlier rather than later. 

Many lawyers handle car crash cases but few have handled car-truck crash cases, and fewer still understand the injury generating forces of low speed collisions. Federal Motor Carrier Safety Regulations (FMCSR)  apply in addition to the laws of the state of Colorado in trucking accident cases. I have found that early evidence gathering and retention and investigation based upon FMCSR violations are productive and that knowledge and advocacy of collision injury forces almost always result in bigger recoveries and better outcomes.

Fort Collins Colorado Truck Accident Injury Lawyer Mac Hester

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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.

The symptoms of mild carbon monoxide poisoning include headaches, stuffiness, fatigue, dizziness, and drowsiness. Because these symptoms are the same as for colds and flu, carbon monoxide poisoning is often not diagnosed, but mistakenly attributed to cold or flu.

The symptoms of moderate carbon monoxide poisoning include those of mild poisoning plus alteration or loss of consciousness.

The symptoms of severe carbon monoxide poisoning include those of mild and moderate poisoning plus cardiovascular problems, seizure, coma and death.

for carbon monoxide exposure are inadequate air supply to combustion appliances,improperly installed combustion appliances, improperly maintained combustion appliances, improperly vented combustion appliances, defective motor vehicle exhaust systems, and idling automobiles in garages.

To help prevent carbon monoxide poisoning: Don't block air supply to combustion appliances. Don't do home remodeling without taking air supply and exhaust venting into consideration. Use professional installers and service technicians. Don't operate attic fans with windows and doors closed (because air can be sucked down the exhaust vents of the combustion appliances, drawing carbon monoxide into the living quarters - "backdrafting"). Make sure that all combustion appliances are vented properly. Install carbon monoxide detectors.

Carbon monoxide detectors should be placed at eye level in all bedrooms, the main living space, and in the room housing the combustion appliances. A detector should be placed in the kitchen if the stove is natural gas fired. The detectors should be placed at eye level because: (1)  carbon monoxide is generally dispersed throughout the space rather than concentrating at the ceilings or on the floor; and (2) you are not as likely to forget about replacing the batteries, or the detector when it becomes outdated.

Warning signs of potential carbon monoxide exposure:

Odor: Although carbon monoxide is itself odorless, combustion and incomplete combustion do create odors. Incomplete combustion produces an odor of aldehyde - which is pungent and is sometimes mistaken for the smell of natural gas.

Symptoms: As discussed above.

Frequent pilot light outages. Continuing pilot light outages may signal improper operation of the combustion appliance - which may involve incomplete combustion and thus carbon monoxide.

Abnormal flames. Yellow, rather than blue, flames may be a sign of improper combustion.

White powdery buildup on vents and the heat exchanger inside the combustion appliance. Improper combustion or venting may produce a white powdery substance that looks like laundry detergent.

Soot. Improper combustion may produce black soot.

What to do if you suspect carbon monoxide exposure: Shut down the probable source of the carbon monoxide if it is safe and easy to do. Get out and get fresh air. Get checked immediately at a hospital and have your blood tested for carbon monoxide saturation. Consider calling 911 rather than driving to the hospital, or have someone else drive you to the hospital. Have your home tested by the fire department before the carbon monoxide dissipates. Have your combustion appliances and your HVAC system tested by a professional HVAC company.

Fort Collins Colorado Carbon Monoxide Injury Lawyer Mac Hester

Hoggatt Law Office, P.C. - Colorado Injury Lawyers

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 My Triumph Bonneville T100

Fort Collins Colorado Motorcyle Accident Injury Lawyer Mac Hester

 Representation in motorcycle injury claims.

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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

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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.

Attorney David Berardinelli reveals McKinsey/Allstate tactics in his book "From Good Hands to Boxing Gloves: How Allstate Changed Casualty Insurance in America" and reveals the following quotes from McKinsey's materials obtained in an insurance bad faith lawsuit against Allstate:

Page 1426 "Improving Allstate's casualty economics will have a negative impact on medical providers, plaintiff attorneys, and claimants.

Page 1427 "Establishing new market values will require aggressive new litigation strategies."

Page 1609 "Align 'alligators' with 'attorneys.'"

Page 2827 "Objective Keep attorneys out."

Page 2929 "Winning the Economics Game; New plays, New game plan, Changing the rules, New game..."

Page 2932 "Capturing the opportunity will require reducing the number of represented claimants and more agressively managing the claims that do become represented."

Page 2939 "Aggressively manage those cases that become represented through...more aggresive litigation approaches."

Page 2939 "Many plaintiff attorneys yield to more aggressive tactics."

Page 2982 "Claims is an economic game. We will win the economic game."

Page 4216 "The New Game Plan: 'Zero Sum Game'... somebody has to win and somebody has to lose...We want to win by modifying the rules and regulations to our advantage."

Page 5226 "Roll Out: 'Build new evaluation system around Colossus..." [Colossus, a computerized claim valuation software program, will be discussed in a subsequent article.]

Page 5403 "Do not re-evaluate approved settlement amount. Stand firm on final offer with no real negotiation."

Page 6325 "These strategies will include significantly higher levels of litigation to establish lower values."

Page 6449 "Early Test Results Favorable: Test: Targeted: Evaluation '175 files through system, 37 settlements at approximately 50% of historic medians.'"

Page 8028 "Based on the existing levels of performance, the four process steps should ultimately yield between $375 million to $475 million a year in casualty by 1997." [Increased profit due to reduced payment of claims.]

Page 8043 "The first important step is to establish aggressive goals and tie compensation to performance against these goals." [Claim adjuster compensation is tied to limiting/reducing payment of claims.]

Page 10059 "Recommended Attorney Performance Measures: Measure: Results: Percent of cases closed at or below evaluated amount." [In house attorneys are compensated and retained or fired based on limiting/reducing payment of claims.]

Page 10069 "Outside Counsel Compensation Approach: Measure: Deviation from evaluated amount plus expenses; Resulting action: Base fee raised or lowered or Gain or loss of cases or Bonus at end of year." [Outside defense attorneys compensation and continued retention based on limiting/reducing payment of claims.]

Page 11545 "Colossus Training Checklist: Prior to MCO training: - Determine the number of tuning regions, - Complete initial tuning by evaluation consultants; Post training: Verify tuning: - Spot check closed claim study, - Create scatter graphs and calculate payment rates, - Retune as necessary." [Tuning, essentially, means that if the computer spits out numbers that Allstate management thinks is too high, then Allstate will re-program the computer to spit out lower numbers so that Allstate will have higher profits.]

The above quotes come from Litigating Minor Impact Soft Tissue Cases, Koehler, Karen K. and Freeman, Michael D., ATLA Press, Thomson-West, 2005, vol. 1, 2005 supp. pp.67-74 which notes that the quotes are "unverified" in the sense that attorney Berardinelli obtained them while reviewing the McKinsey materials while under a temporary protective order. The court ruled that the McKinsey materials (and thus quotes derived therefrom) were not protected trade secrets. Allstate appealed, but their appeal was dismissed as untimely filed.

Fort Collins Colorado Personal Injury Attorney Mac Hester

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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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