Measure of Damages – Elements of Noneconomic Damages

Posted Tuesday, June 13, 2017 by Ed Harper

WPI 30.06 states, “The pain and suffering, both mental and physical [see RCW 4.56.250(1)(b)] experienced and with reasonable probability to be experienced in the future.”

RCW 4.56.250(1)(b) – this statute holds noneconomic damages are “subjective, nonmonetary losses, including but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of parent – child relationship.”

The case of Bitzan v. Parisi, 88 Wn.2d 116, 550 P2d 775 (1977) is instructive on this issue. The Supreme Court in Washington determined this damage instruction must include all elements supported by the evidence. Failure to include an element of damage in a jury instruction is a reversible error when there is enough evidence to support it.

Here, Defendant Ernest Parisi rear-ended Plaintiff Thomas Bitzan’s car. The plaintiff recovered on a verdict for future and present damages. A motion at the trial court level overturned this verdict, which the appellate court upheld. At the Supreme Court, the court granted review and reversed the appellate court’s decision. This decision was based on the failure of the trial court to allow a damages instruction on future damages based solely on lay witness supportive testimony.

“The question of what evidence here is necessary to support an instruction on future disability, pain, suffering and loss of earnings requires an examination of the sufficiency of lay testimony for that purpose including testimony of subjective symptoms is contrasted with objective symptoms.… In this case there is, however, lay testimony generally to the effect of it bits and sustained pain, suffering, disability and loss of earnings from the time of the December 14, 1971 accident to the date of trial on July 23, 1973, a period of over 19 months. For reasons next stated, we hold the lay testimony, reviewed sufficient, alone, to support the instruction on future damages. There is no reason layman may not testify to their sensory perceptions, the weight of the testimony to be determined by the trier of fact. Physical movement by the injured person can be seen and described by a layman with no prior medical training or skill.” Bitzan at pgs. 119 – 121.

Regarding future damages, “Proof of pain and suffering as late as the time of trial even though subjective and character will warrant an instruction on future damages. The same is true of proof of disability and lost earnings. The continued existence of these elements of damage at the time of trial permits a reasonable inference that future damage will be sustained. Expert medical testimony to this effect may also be given, but it is not essential. Such evidence if unfavorable is admissible however to limit recovery.” Bitzan at 122, (cites omitted).

Measure of Economic Damages - Elements of Past Damages

Posted Tuesday, June 06, 2017 by Ed Harper

When a plaintiff is injured, most likely they will receive medical treatment. Medical expenses to be recovered must be proven to be reasonable and necessary and proximately caused by an event which resulted from the defendant’s negligent conduct.

WPI 30.07.01 states, “The reasonable value of necessary medical care, treatment, and services received to the present time.”

Provided the plaintiff can present evidence establishing the reasonable value and necessity of their past medical care, treatment, and services, and the defendant provides no controverted evidence, then the undisputed reasonable value of that medical care (doctors care, hospital care, nursing care, etc.) treatment and services should be listed as a undisputed item on the damages instruction to be given.

RCW 4.56.250 (1)(a) – The statute defines economic damages in part as “objectively verifiable monetary losses, including medical expenses.”

See the case Palmer v. Jensen, 132 Wn.2d 193, 930 P.2d 597 (1997).

“When the plaintiff has provided the evidence to establish reasonable care and need for treatment and the defendant provides no evidence to the contrary then there is no legitimate dispute.” (Palmer v. Jensen¸ at 199 – 200)

Here, Palmer asked the appellate court determined Plaintiff had proven these elements reversing the trial court’s denial of her motion for new trial. Palmer argued that the jury’s verdict for the exact amount equal to special damages is inadequate because the award failed to include damages for pain and suffering. Palmer was injured due to a motor vehicle accident on January 30, 1990. Palmer sued for personal injuries, alleging general and special damages. The jury held that Jensen was negligent. Palmer was also found to be 25% contributorily negligent. The jury awarded Palmer damages in amounts equal to her special damages. The awards were then reduced to account for Palmer’s contributory negligence.

The Supreme Court reviewed there was uncontroverted evidence established that showed all of Palmer’s medical treatment was related to the accident, was necessary, and was reasonable. (Palmer, 81 Wn.App. at 150.) The defendant provided no contrary evidence and counsel for the defense could only urge the jury during closing to conclude Palmer had failed to prove her treatment was necessary. The Supreme Court determined that “given that there was no legitimate controversy regarding special damages and that the jury’s verdict is exactly equal to plaintiff’s special damages, we hold the jury verdicts jury’s verdict included no compensation for pain and suffering.” This was a mistake.

The appellate court stated “the medical evidence substantiates Pamela Palmer’s claim that she experienced pain and suffering for over 2 years after the accident. We hold the jury’s verdict providing no damages for Palmer’s pain-and-suffering was contrary to the evidence. The trial court therefore abused its discretion when it denied Palmer’s motion for new trial.” The Supreme Court remanded the case for new trial regarding Pamela Palmer’s damages.

Loss of Earning Capacity

Posted Tuesday, May 30, 2017 by Ed Harper

What can you recover if you cannot work up to your capabilities?

Washington Pattern instruction 30.08 stands for the proposition that one’s loss of earning capacity is the inability to earn money.This is separate from “lost earnings”. Loss of earning capacity focuses on the injured person’s diminished ability to earn money because of his or her injuries. Bartlett v. Hantover, 9 Wn.App. 614, 619 – 620, 513 P 2nd 844 (1973), was affirmed on lost earning capacity, and reversed in part on other grounds by the Supreme Court on review, 84 Wn.2d 426, 520 P.2d 1217 (1974).

In Bartlett the plaintiff was working as a manager of a motel, when he was injured severely when shot by intruders. The injured plaintiff was shot in the head and shoulder and somehow survived. The court stated, “In order to instruct on lost earning capacity, the evidence must show with reasonable certainty that the injured party has suffered an impairment in his ability to make a living. (See McCormick, Damages, Sec. 86, 1935) In Bartlett, the court continues by stating the showing that must be made is that the injury suffered by the plaintiff is an injury that, in fact has diminished the ability of the plaintiff to earn money. (Murray v. Mossman, 52 Wn.2d 885, 889, 320 P. 2nd 1089, 1958)

“The requirement of the law leaves the fixing of the amount of loss to the discernment of the jury. Thus, a child of 3 and an unemployed man of 71 can suffer a loss of earning capacity.” (Sherman v. Seattle, 57 Wn.2d 233, 350 P.2d 316, 1960; Riddell v. Red Lion, 124 Wn. 146, 213 P. 487, 1923) “Evidence of physical impairment must be presented and from that evidence of injury to the body and/or mind of the plaintiff, the jury must assess the amount that will compensate for his lessened money-making faculties and reduced income potentialities.” (Kelley v. Great Northern Railway, 59 Wn.2d 894 370 P.2d 528, 1962; Johnson v. Howard, 45 Wn.2d 433 230 P.2d 736,1954; Handley v. Anacortes Ice Company, 5 Wn.2d 384 100, P.2d 505, 1940; Sheppard P Smith, 198 wash. 395, 80 8P. 2nd 601, 1939; Hirst v. Standard Oil Company of California, 145 wash. 597, 260 1P. 405, 1927; annotation, 18 A. L. R. 3rd 88, 1968). “Evidence of the bodily impairment suffered from the two gunshot wounds amply supported lost earning capacity as an element of damage.” Bartlett at 9 Wn.App. 619 – 620.

How Can I Reduce my Insurance Rates?

Posted Tuesday, May 09, 2017 by Ed Harper

How can I reduce my insurance rates and will the rates go up after an accident?

Well it depends. There are several factors that an insurance company will consider when determining what your car insurance rates will be, and whether they will go up, if it all, after an accident.

First of all, it is personal as the insurance company will look at the risk they are exposed to. When setting rates, an insurance company will be ascertaining personal information including your age, occupation and where you live. Further, your occupation can determine how much driving you do. Additionally, this will include things like what type of car you drive and where you live.

Actuaries help ascertain a drivers tendencies. They look for patterns of claims activity. They can also look at your credit score. The reason they these studies is to show that a person who can manage their financial affairs often is a predictor of the number and size of insurance claims he or she may file according to the Insurance Information Institute.

Secondly, insurance companies will determine rates based on the car you drive. Premiums are often based on the car’s sticker price, the cost to repair it, and its overall safety record and likelihood of theft. It should be obvious that a Ferrari would be a lot more expensive to repair than say a Nissan.

Other important factors are finding out your driving history, as well as your accident and ticket history. Safer driving in the past often informs the insurance company that you will be a safer driver and less likely to file a claim.

If you’ve been in an accident, they will look at the severity of the accident and the size of any claims made. Often time rates will increase if the accident is your fault, but stay the same if the other driver is at fault. However, exceptions can apply.

Additionally another way that insurance companies determine insurance rates results directly from the coverages you are applying for. Raising your deductible to an amount such as $1000.00, could save you 25% to 50% on your policy. Providing a higher deductible is self – insurance and can reduce your premiums.

Additionally, you can help lower your premiums by being and becoming a better driver. Just driving in a safe and calm manner can reduce the number of tickets you will receive and you will likely also save money in fuel costs.

You can also take a safe driving course or in accident avoidance course and consider asking your insurance company if this will reduce your premiums.You can also get a cheaper, lower risk vehicle for reasons mentioned above. Edmunds.com has considered 8 components –

• Depreciation • interest on financing • taxes and fees • insurance premiums • fuel• maintenance• repairs • federal tax credit that may be available

These 8 items will tell you what your cost for this vehicle would be over 5 years. You can also get a preview of what your insurance premiums will be by asking when you are car shopping on how much different vehicles will affect your insurance.

And finally, when all else fails consider switching insurance companies to obtain a discount for the same policy coverages. Don’t switch and fall prey to 15 minutes can save you 15% claims, if all the insurance company is doing is reducing your coverages. Be thorough and review your policy and call Ed Harper at 425 – 284 – 3333 Harper Law PLLC if you have questions regarding your auto insurance policy.

Should a Plaintiff's Spouse Bring a Loss of Consortium Claim?

Posted Tuesday, May 02, 2017 by Ed Harper

Should a Plaintiff’s Spouse Bring a Loss of Consortium Claim?

Washington Pattern Instruction 32.04, the loss of consortium instruction, is based on an injury to the other spouse. But this instruction has been expanded of late to include other family members, and significant others. This instruction is based off RCW 4.56.250.

The loss of consortium cause of action is available to family members of a person injured or killed by the wrongful acts of another most likely it should be brought in all cases of wrongful death. However the decision-making process for plaintiffs and their attorneys is often not obvious. Numerous factors must be considered before a claim is raised for the uninjured spouse to the jury.

Every marriage is different and decisions must be made of how involved does the uninjured spouse want to be in the litigation. “If the spouse is reluctant, the claim will not present well to the jury. You must find out the most private, intimate aspects of your client’s marriage, and make sure both spouses understand that others will be getting this information, too.”

Numerous discussions should be held with the client to determine the spouse’s ability to testify regarding the injured spouses injuries and the impact the suffering had on the family.

On October 15, 2012, the Court of Appeals of Washington, Division I rendered this unpublished opinion in the case* Michael Tiedemann v. Allstate insurance company*; an unmarried couple who had lived in British Columbia in a marriage-like relationship for 3 ½ years could bring and maintain a loss of consortium claim.

Allstate made numerous mistakes in not objecting to the court permitting the loss of consortium claim as they had failed to raise this issue properly at the trial court level. “To preserve an evidentiary issue for appellate review, the specific objection made at trial must be the basis of a party’s assignment of error on appeal.” (State v. Guloy,) 104 Wn. 2d 412, 422, 700 5P 2d 1182 (1985). Because Allstate did not object to the challenged evidence on the grounds asserted on appeal, the court declined to consider these claims.

If you want more information on Loss of Consortium, see the article by Patricia Zimmer.

(http://www.americanbar.org/content/newsletter/publications/gpsolomagazinehome/gpsolomagazineindex/zimmer.html)