= Plaintiff attorneys arent afraid to throw it at the wall While - PowerPoint PPT Presentation

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 Plaintiff attorneys aren’t afraid to “throw it at the wall”…

 While out skateboarding, Jeffrey Kline & Brett Birdwell illegally entered property owned by Amtrak and Norfolk Southern Corp. and climbed on top of a boxcar to get a view of the city. An uninsulated wire suspended above the train jolted Klein with 12,500 volts of electricity, causing severe burns over 75% of his body. Birdwell received burns over 12% of his body when he ran to assist his friend, whose clothes were on fire. 

 In the October 2006 trial, a Pennsylvania federal court jury said that, although they were trespassing, the 17-year-old boys bore no responsibility for the accident, instead blaming it entirely on the railroad for failing to post signs warning of the danger from the electrified wires that power locomotives. For medical costs, pain and suffering, and "loss of life pleasures," the teens received a combined $24.2 million

 Stella Liebeck, a 70-year old Albuquerque woman, spilled a cup of McDonald's coffee on her lap while sitting in the passenger seat of a parked car. She suffered 3rd degree burns on her groin, inner thighs and buttocks and spent seven days in the hospital.  When McDonald's refused to pay her medical bills, she sued. A jury awarded her $160,000 in compensatory damages and $2.7 million in punitive damages, which were later reduced to $480,000. Both sides appealed, and eventually settled out of court for an undisclosed amount.

 During the lawsuit, plaintiff attorneys learned the temperature of McDonald’s coffee was 40° to 50° hotter than that fit for human consumption, and that McDonald’s had received over 700 prior injury reports from its coffee, including reports of 3rd degree burns, and had paid settlements in some cases; yet, executives took no action to serve safer, consumable coffee at a hot but reasonable temperature.

 Think like plaintiff attorneys › Investigate claims thoroughly › Understand legal theories  Even “creative” theories which may support recovery or at least partial recovery › Aren’t intimidated by liability defense attorneys who try to convince them their case is groundless › Aren’t intimidated by plaintiff attorneys who try to convince them their case is weak (in order to get a lien compromise)

Subrogation  The substitution of one person in the place of another with  reference to a lawful claim, demand or right, so that he who is substituted success to the rights of the other in relating to the debt or claim, and its rights, remedies, or securities. The lawful substitution of a third party in place of a party having  a claim against another part. Insurance companies, guarantors and bonding companies generally have the right to step into the shoes of the party whom they compensate and sue any party whom the compensated party could have sued. The right of one who has paid an obligation which another  should have paid to be indemnified by the other. (Definition: Black’s Law Dictionary )

 The party contractually obligated to pay the damage claim pays it, and then pursues reimbursement from the party whose negligence caused the damages  In other words, the party that had to pay pursues reimbursement from the party that should have paid

 Are GREAT at  Medical stuff  “Forms” stuff  Calculating stuff  Are less GREAT at  Liability/negligence stuff  Thinking like a plaintiff attorney

Evaluating compensability  Considering pre-existing conditions  Managing medical treatment  Looking for return-to-work opportunities  Issuing the proper ICA notices  Who was at fault for the injured worker’s  injury If/how the responsible party can be held  liable for paying for those injuries

 AZ has a 2-year statute of limitations for negligence-based claims vs. private entities  Per A.R.S. §23-1023, injured workers can pursue a civil remedy against the party that caused their injuries within 1 year of the date of injury by:  Settling their claim and paying our WC lien  Filing a lawsuit vs. the liable party (and paying the comp lien from proceeds of that suit)  Getting a reassignment of our second-year recovery rights vs. the liable party (and honoring our lien)

 Within that 2-year statute of limitations:  Year #1: Injured worker has exclusive recovery rights  Year #2: WC carrier/self insured has exclusive recovery rights if there was no settlement, suit or reassignment to the injured worker  That means the comp carrier or self insured becomes the third- party “claimant”

 1-year statute of limitations for negligence claims vs. public entities (ARS §12-821)  ONLY if you file a statutorily compliant notice of claim (ARS 12-821.01) within 180 days after date of loss/discovery of negligence-based damages  Injured worker and WC carrier/self insured’s rights against responsible third parties run concurrently  Unless the injured worker settles/repays the WC lien, or gets a reassignment, or files suit, the WC carrier/self insured needs to file a notice of claim within 180 days and a lawsuit within 1 year

 Third party recovery “pecking order”  #1 The claimant attorney (fees/costs)  #2 The work comp provider (lien)  #3 The claimant (whatever is left)

 Example: › Represented claimant on a 33% contingency agreement settles with the liable party for $100,000; comp carrier has $25,000 lien › Attorney costs (expert fees, etc.) total $2,000 › Attorney takes his 33% ($33,000) plus costs of $2,000; so he/she collects $35,000 › Comp carrier gets its $25,000 lien (if they didn’t compromise it) › Claimant gets the remaining $40,000

 …won’t the EMPLOYEE be the one to figure that out?  …won’t the EMPLOYEE be the one to hire an attorney and pursue a claim (on which we can assert a lien)?  Not necessarily!

 AZ is a “pure comparative” state  If a third party is even 1% at fault for injuring an employee, they pay 1% of the total damages  DON’T assume there’s no recovery potential just because your injured worker was “mostly” (maybe even 99%) at fault for causing his own injuries.  Even 1% of what you’ll pay on a serious injury claim can be a BIG number!

 Duty owed  Duty breached  Proximate cause  Actual damages

 What’s the duty owed?  Generally…to operate the vehicle in a reasonable/safe manner to avoid an accident  Control speed  Maintain proper stopping distance  Yield the right of way when required  Obey traffic controls  Stay in your lane  Watch for pedestrians

 Rear-end auto accidents  Left turn accidents  Failure-to-yield accidents  Other vehicle ran a stop sign or red light  Other vehicle emerging from a side street or private drive

 What if it looks like the injured employee caused the accident?  Maybe he/she did…but were they really 100% at fault?  Or was there comparative negligence?  What do witnesses say?  What does the police report say?  What do accident scene photos tell you?

 Can property owners be held partially liable in auto claims for visual obstructions in violation of setback ordinances or for overgrown trees/shrubbery?  Can construction or barricade companies or public entities be held responsible for confusing signage/barricading?  Were stoplights properly functioning?  Were there applicable standards for road design, signage or speed limits? Were conditions in compliance with the standards?

 Were there visual obstructions that contributed to the accident?  Did construction/barricading contribute to the accident  Were traffic signals working properly?  Were the appropriate traffic signals or traffic warning signs present, and if so, were they compliant with the applicable code?

 If you’re on someone else’s property, you’re either  An invitee/business invitee  Invited by the property owner, generally to benefit the owner (i.e., store customers)  Owner has a duty to make the property reasonably safe  A licensee  Enters property for his own purpose or enjoyment, and is present at the consent of the owner, usually for a business purpose (but social guest are also licensees)  Owner only has a duty to warn of known hazards (not to make the property reasonably safe)  A trespasser  On the property without the owner’s permission  Owner has duty not to intentionally injure or set traps

 Determine the injured worker’s status on the property (usually will be licensee in work comp claims)  Determine what duties the property owner owed the injured worker  Were those duties breached?  Was that breach the proximate cause of the employee’s injuries?

 Was the property well-lit? (were there applicable lighting standards?)

 Poor lighting can apply to outdoor accidents too… Are pedestrians known to walk here after dark?

 Mid-block crosswalks should always be well-lit. Would an approaching driver see this?