The Harper Law Blog
The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.
Posted Tuesday, May 12, 2015 by Ed Harper
A question arose recently in our office regarding a potential injury claim arising from the driving of car through a parking lot. Fact scenario: Driver who has a automobile policy of insurance is driving through a parking lot. The driver notices a pedestrian in the rear-view mirror clutching their lower leg/foot and hobbling to the curb.
The Good Samaritan driver turns car around and asks the pedestrian if they are ok. Pedestrian proceeds to respond, “no, you hit me” claiming the car drover over her foot.
The issue arises whether the driver’s insurance policy will cover the “accident”.
- Bottom line: Yes, if the policy was in place at the time of the incident.
- Terms: Insured – is the person who has purchased the policy
- Insurer – is the insurance company providing the policy
- Analysis: the insurance company has a duty to defend in this scenario. This duty to defend is one of the primary duties contractually undertaken by an insurer when it issues a third-party liability policy. Harris, Washington Insurance Law, 3rd Edition Sec. 11.01.
Some benefits of this coverage is the security knowing that the potential claim(s) will be defended and the insured’s interests will be protected. The primary requirement for an insured is the claimed loss is covered by the insurance policy. This means the event must be within the scope of the agreement and within the policy period.
The policy will likely require the insurer to defend even if the allegations of a claim are “groundless, false, or fraudulent”. State Farm v. Emerson, 102 Wn.2d 477, 485-86, 687 P.2d 1139 (1984)
Thus, one is protected from this incident in the parking lot up to the limits of the insurance policy.
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Posted Thursday, May 07, 2015 by Ed Harper
When your automobile insurance company schedules you for a medical exam, often called an IME, be aware the exam will not be conducted like a typical exam performed by your physician. The IME - referring to “independent medical exam” probably should be characterized as an “insurance medical exam” - will likely result in your medical benefits of your auto insurance policy being cut off. Under Revised Code of Washington - RCW 48.22.085(1) the Washington State Legislature requires all automobile liability insurers to offer Personal Injury Protection - called “PIP “. An insured is not required to purchase PIP, but it must be declined in writing. Basically, PIP will cover medical bills, some wage loss, funeral expenses and loss of services up to the limits found within your insurance policy.The PIP claimant must establish the treatment for injuries arose out of the use of a vehicle.Thus, what often occurs is a medical examiner, paid for his or her opinion by the insurance company, will opine the treatment stems from some other source, other than an automobile accident. As you can see below, the health care examiner can venture an opinion with a large amount of leeway. So be forewarned and forearmed going into these examinations.
Some of the questions the examiner will be asked to determine: - - Current medical condition? - - Current diagnosis? - - Is the diagnoses mentioned related to the accident? - - Are there objective findings to support the subjective complaints of the insured? - - Has the insured returned to the condition they were in prior to the accident? - - Does the insured require any additional treatment or health care? - - Please outline your recommendations? - - Please outline the basis for your opinion. - - Was there a point where treatment was no longer necessary as related to the accident in question? - - Please outline the insured’s employment at the time of the accident. - - Is the insured capable of performing their job duties as there were at the time of the accident? - - Is the insured capable of performing any job as they were prior to the time of the accident? - - If restrictions are necessary, please outline the objective basis of the restrictions. - - List the relationship any restrictions mentioned, to the accident. - - List the period of time any restrictions that you mentioned. - - Is the insured capable of performing their household duties? - - Is the insured capable of performing their essential services? - - Is the insured capable of performing their activities of daily living?
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Posted Friday, April 03, 2015 by Ed Harper
A friend of mine recently asked if she could lower her insurance coverage. Here are some of my thoughts:
Not all Insurance Companies are Equal
First, not all insurance companies are equal. Some handle their claims better than others. And a first party insurance (your insurance) has a greater obligation to treat you with good faith and fair dealing than say a third party insurance (the at fault company). There is assumed to be an adversarial relationship with a third-party insurer. So, don’t be swayed by a cute little gecko who has a funny Australian accent - they are not in the business to give you anything, least of all, good customer service. Because they are more interested in making money than caring about their image if you are a claimant.
What Amount of Coverage do I need?
Second, I the amount of insurance coverage you have for bodily injury, for your liability coverage, is an amount of money that will adequately protect what you own. You need insurance for the amount of assets that you guys are trying to protect.
Liability Coverage is Only One Form of Coverage You Should Have
Third, I would try and keep PIP (personal injury protection) and especially UIM (uninsured or underinsured motorist) as high as possible. These coverages are in essence a form of self-insurance. PIP provides medical and wage loss (and a few other things) and UIM protects you guys with a relatively cheap form of coverage. These coverages are vastly important because I have seen some truly injured people really need more insurance when the other driver doesn’t have enough insurance. For example, UIM coverage stacks on top of the amount of coverage of the at-fault insurance coverage.
Let your Fingers do the Walking and Get Several Quotes
Finally, my suggestion to my friend was to shop around, and get some different quotes from a variety of insurance companies. This allows you to see how much another insurance company would charge for the same amount of coverage.
Just my thoughts. If you have any questions or concerns about your insurance coverage from a personal injury, give Harper Law a call.
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Posted Friday, March 20, 2015 by Ed Harper
Recently, personal injury claims are being handled today much differently than they had been in the past. With the advent of Colossus, (created by Computer Sciences Corporation - CSC) and other claims handling software, are cost containment tools being utilized by numerous insurance companies to lower claim values. (A majority of this information was gleaned from an article written by Consumer Federation of America. http://www.consumerfed.org
This is how it works, generally:
The insurance company sets a benchmark - a consensus on the value of personal injury claims.
Insurance company then reviews their settlement numbers for claims.
Insurance company then sets a settlement range - fine tuning their system.
In this case, the CSC software Colossus, has 600 injury codes, and the software then sets a value - a $ amount for each severity point.
The particular region (State, County, City) does have an impact on claim value. This is factored in as well.
The diagnostic codes are used that were utilized by the physicians and health care providers. This are typically ICD-9 or ICD-10 codes. ICD stands for: The International Classification for Diseases.
The final prognosis, rendered by the physician or other health care provider is reviewed and ascertained. IF there is a need for future treatment, are there any ongoing complaints or have the complaints resolved? These questions help determine the range the computer program will provide to the adjuster.
Other important points include the following: Medications, diagnostic testing, hospitalization, admissions, physical therapy, restriction of movement, pain, and other factors as well.
the program will consider the special damages in the claim. These include the following: Medical bills; Lost wages; Future medical treatment needed; Future lost wages; out of pocket expenses.
Disfigurement or scarring.
Was there a permanent impairment rating.
Any aggravation of pre-existing conditions or injuries?
What was the length of treatment? Certainly the longer the care, the higher the value, or one would think.
Any gaps in treatment? A gap in care is always detrimental to a plaintiff’s claim. With these factors, a range is established. The adjuster, who formerly had a vast amount of freedom up to his or her authority, is giving a range to settle the claim. Usually within a range of 20% or so.
So, if you have any questions or concerns about your personal injury claim, and how it is being evaluated, don’t hesitate to give us a call at Harper Law PLLC.
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Posted Friday, August 16, 2013 by Ed Harper
Recently, Division One of the Washington Court of Appeals denied a plaintiff’s product liability claim. The case arose when the plaintiff was injured after she fell to the ground while sitting in a patio chair which collapsed for an unknown reason. The plaintiff was injured while a tenant at an apartment complex. Plaintiff struck her head on the concrete flooring. This occurred in a common area controlled by her landlord and/or the property manager. The plaintiff did not know why the 4-5 year old chair collapsed, but alleged the chair was defective, and/or not properly maintained by the owner and/or property manager.
The injured tenant retained counsel. Her attorney requested the chair be kept and secured in order to investigate this claim at a later date. The attorney sent a letter which was delivered to the property manager of the apartment complex to maintain the chair. The property management company (Wallace Properties) maintained and did secure the chair. The chair was allegedly kept in a storage closet.
Subsequently, the property manager was replaced by a new property manager, and the chair disappeared. The chair was not discovered prior to filing suit. In sum, without the chair, the plaintiff was precluded from conducting any tests to determine why the chair collapsed.
The former property manager was named as a defendant. Another defendant was incorrectly named as the landowner. A summary judgment motion was filed by the property manager. The property manager claimed they did not have actual or constructive notice of the condition of the chair and therefore could not be held responsible. The alleged owner also brought a motion for summary judgment claiming they were not the actual owners of the property at the time of the chair incident.
The legal standard holds that a landowner (and property manager) is liable for harm to a tenant when the landowner “knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to tenants” Musci v. Graoch Assocs. Ltd. P’ship No. 12, 144 Wn.2d 847, 855, 31 P.3d 684 (2001) citing Restatement (Second) of Torts section 343. (1965). Here in Washington, the court articulated the standard for knowledge – requires the “actual or constructive notice of the unsafe condition”. Iwai, 129 Wn.2d at 96.
The plaintiff failed to convince the trial court and the appellate court, that because the chair was missing and not maintained, they should not have to meet their burden of proving the chair was defective and/or improperly maintained. The plaintiff suggested the disposal of the chair was negligent and tantamount to destruction of the key piece of evidence, which precluded the plaintiff from proving their case.
The court was not convinced and the plaintiff’s case was dismissed for lack of evidence. Without the chair, the plaintiff was hamstrung and lacked the crucial piece of evidence. Also, there was nothing to show the property manager had actual or constructive knowledge of the defectiveness of the item. Also, the correct owner was never named, and the plaintiff failed to satisfy their burden of proof. The chair was never tested nor was there evidence of any knowledge on the part of the defendants.
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