Christopher Ladd was injured in a car accident in August 2003.  He was a passenger on a car in Salt Lake City on I-80.

His case is unusual because it involves two crashes and a dream.

To win an auto accident case, a plaintiff (Ladd in this case) must prove negligence on the part of the defendant and causation.  In other words, was the injury caused by the negligence.

In this case, Ladd lost because he couldn’t prove that the injury was caused by the negligence of the defendant.  Here is why.

There were two car crashes separated by several minutes.  Everyone agrees that Ladd’s vehicle was struck twice.  The dispute arises in deciding whether Ladd was in the vehicle at the time of the second impact.

While no eyewitness saw exactly what happened, the eyewitnesses thought that Ladd had been ejected at the time of the first crash and he lay in the median until the police discovered him. Because Ladd suffered a concussion, he had no memory of the accident and couldn’t comment.

About six months later, Ladd had a dream.  In his dream, he was not ejected after the first accident.  Instead, he exited the vehicle under his own power and was standing next to it when it was struck.  The second impact was what threw him into the median and caused the brain injury.

Judge Henriod threw the case out.  The court of Appeal agreed.  They said that a dream is not sufficient evidence to win a case.  Ladd could only win if he had some other sort of evidence.  That could include his own memory, witness statements, photographs, etc.  Because his only evidence was a dream, his case was dismissed.

ABC 7 News in Denver recently ran a story about Farmers Insurance Totaling a dog.  Here is the full story.

Here is the shortened version.  Marcia Pinkstaff owns a 9 year old lab mix named Sasha.  Sasha was hit by a car.  The driver of the car was at fault and was insured by Farmers Insurance.

The insurance adjuster told Pinkstaff that she could take Sasha to the vet once and maybe twice but that if Sasha needed more care they would total the dog.  In other words, no more vet visits would be paid for.  Instead, Pinkstaff would be paid the value of finding a used 9 year old lab mix.

Is it legal?  In Utah, it probably is.  Utah law is that dogs are simply property.  The full value of a dog is its replacement cost.  The law does take into account things like breed and training.  A seeing eye dog is more valuable than the neighborhood mutt.

Because dogs are property, they can be totalled just like a car.

An Ogden man sued an Ogden area doctor for medical malpractice.  In the case, John Lyon alleged that Dr. Donald Bryan, M.D. failed to diagnose a blood clot that eventually broke lose and caused a pulmonary embolism.  Lyon had a different medical doctor provide expert testimony at trial that Dr. Bryan was negligent and that the negligence caused the pulmonary embolism.  Dr. Bryan did not offer an evidence to dispute that.

The jury found that Dr. Bryan was negligent but that the negligence did not lead to any injury.  As a result, Dr. Bryan won the lawsuit.

I’ve heard that plaintiffs lose 80% of medical malpractice lawsuits in Utah.  Many may say that is because most suits are frivolous.  I don’t think it is fair to say that a suit is frivolous when the only third party medical evidence offered at trial favors the plaintiff.  Instead, I think something else is at work.

Jurors are afraid of losing access to medical care.  As a result, they are willing to give doctors the benefit of the doubt.  Even when they have to ignore the only evidence presented at trial.

In Allen v. Moyer, the Supreme Court denied a personal injury claim because the same parties had previously litigated a vehicle damage claim in small claims court.  The Court said that under Utah law, a party must bring all claims, arising out of the same occurrence, in one lawsuit.  Because the plaintiff had already filed a lawsuit in small claims for vehicle damage, the second lawsuit for personal injuries would not be allowed.

I personally don’t like the decision.  Even so, I can’t criticize the court for not correctly applying the law.  Ancient Utah cases lead to this conclusion.  The problem with the decision is that it gives insurance companies too much power to low ball.

When I started practicing law, 17 years ago, it was fairly common for insurance companies to use Kelly’s Blue Book when determining the fair value of a vehicle.  Insurance companies then moved to NADA values.  This was to their advantage, because NADA values are consistently lower than Blue Book values.  About 10 years ago, they moved to an appraisal system.  Almost all Utah insurance companies use the same appraisal service. The service gives a written opinion regarding the value of a car.  The appraisals are always lower than Blue Book and NADA.

When someone’s car is totalled and they don’t think the insurance company is offering fair value, small claims seems like a logical choice.  The car owner can sue for up to $10,000 in small claims.  The small claims judge can look at Blue Book, NADA, the appraisal and any other evidence and give an opinion as to the value of the car.  This is a fairly inexpensive process and goes rather quickly.

The new Supreme Court opinion prevents people with personal injuries from pursuing this route.  If they do, they will give up any claim for the personal injury.  Because personal injury lawsuits typically involve more money, that is not a good option.  Unfortunately, personal injury lawsuits also take longer to resolve.  This make force the injured person to either accept the low ball offer or wait a long time to get the matter before the same judge who decides the personal injury claim.

The legislature could fix this problem.  I suggest they do.  A bill could be introduced to specifically allow personal injury victims to pursue their vehicle damage claim in small claims while preserving their claim for personal injuries.

In almost every personal injury claim I’ve handled, the defense argues one or more of the following: (1) the plaintiff is lazy, (2) the plaintiff is a malingerer, and/or (3) the plaintiff is exaggerating his injuries.

Now, I’m not so naive to believe that plaintiff’s are never guilty of any of these things.  However, when I see any of that in my client’s I cut them loose.  I don’t want to use my time and skills to help those types of people.  Further, I don’t believe that all injured people do that.

Most of my clients try their best to go back to work on their own.  Usually, they don’t ask me, they just go back to work as soon as they can.  When they do ask me, I tell them they should get back to work as soon as their doctor tells them it is safe.

The danger of going back to work is that the defense will inevitably argue that the plaintiff wasn’t really hurt.  If they were really hurt, they would not have returned to work.

For a plaintiff it is a no win situation.  No matter what they do, the defense has an argument. If they return to work they’re not hurt.  If they don’t return to work they’re a malingerer.

Juries are smart and they can see through that.

I’ve just lost confidence in administrative law judges.

In a decision out of the Court of Appeals a few days ago, a panel of administrative law judges denied permanent disability to a man because he returned to work.

George Olsen was injured on the job.  Because of that, his case didn’t go to a jury.  Instead it went to a panel of administrative law judges.  His injury was quite severe.  His right arm was amputated just below the elbow.  To make matters worse, George was right handed.

Within seven days, George returned to work.  Not only that, he kept working.

The judges found that because he returned to work, the amputation of his right arm was not a permanent total disability.

I don’t do worker’s compensation so maybe it’s just my naivety.  But I don’t think people should be rewarded for staying home when they can work.  Likewise, they shouldn’t be punished for working when others cannot.

The answer is: NO!

I was recently talking to an attorney who retired from representing doctors insured by UMIA.  UMIA inures the vast majority of doctors in Utah.  The attorney told me that while working for UMIA, he represented a doctor in an arbitration and lost.  The arbitrator awarded over $1,000,000 to the patient.

Shortly after the arbitration, the defense attorney had a private lunch with the arbitrator.  The defense attorney told the arbitrator that UMIA had told him to tell the arbitrator, two strikes and he’s out.  In other words, if the arbitrator ever gave an award that high again, UMIA would blacklist that arbitrator.

Because UMIA has such a large market share, that threat was very real.  I”m sure that in every arbitration since then, that arbitrator worries that a large award may affect his income.

Whenever an insurance company that does a lot of arbitrations is involved, arbitration is not fair.  The arbitrator is not a neutral party because the arbitrator knows that if the insurance company does not like the decision the insurance company will hurt the arbitrator where it counts, his pocket book.

According to statistics released by the U.S. Department of Transportation on Monday, 5,474 people were killed in distracted driving–related crashes in 2009, and another 448,000 were injured on U.S.highways.

Transportation Secretary Ray LaHood cautioned that the actual number of distracted driving accidents is likely much higher. LaHood said in an interview that many states don’t consistently document whether or not distracted driving was a factor in crashes, which makes it impossible to know the true extent of the problem.

A recent study by the National Highway Traffic Safety Administration revealed that deaths in distracted driving–related crashes actually increased from 10% to 16% from 2005 to 2009, despite the fact that overall traffic fatalities in 2009 were at a 60 year low

The Utah Court of Appeals has ruled that people who help others move are civilly liable for personal injury when they negligently secure the load and someone else is hurt as a result.  On March 29, 2002, Dan McNeil helped someone move.  To that end, he helped load a truck with several pieces of furniture, including a chair.  He participated in tying down the load but was not involved in driving the truck to the new home.  En route, the chair fell out of the truck, injuring Jennifer Ottens in a subsequent automobile accident.

McNeil defended his lawsuit by claiming that only the driver of the truck was negligent. He argued that the Utah Traffic Code makes it a criminal offense for any driver to operate a vehicle with an unsecured load.  Therefore, the driver was liable, but not those that helped load the truck.

The Court of Appeals disagreed.  It held today that both the driver and all persons who help load and secure a truck are liable if the truck was negligently loaded and a third person is injured because of the negligent loading.  The Court of Appeals remanded the case for a new trial.

We celebrated the Fourth of July holiday this weekend.  Inevitably, we hear about trial by jury.  Over the fourth of July holiday, we hear how much everyone loves it, reveres it and wants to preserve it.

So how is trial by jury doing?  Unfortunately, the answer to that is, not so great.

Porter Rockwell was born in New York in 1813 or 1815 and died in Salt Lake City in 1878.  He was a renowned frontiersman.  He was both praised and chided as a lawman in the Utah Territory from about 1850 till the time of his death.

Before coming to Utah, Rockwell lived in Missouri.  In 1842, someone attempted to assassinate Lilburn Boggs.  Boggs had been a controversial governor of Missouri and was running for State office at the time of the assassination attempt.  Rockwell was eventually arrested and thrown in jail, awaiting indictment.

Rockwell spent about nine months in a filthy jail under deplorable conditions.  While in jail, he successfully escaped but was quickly recaptured.  Eventually, a grand jury was convened to determine whether there was enough evidence to charge him for the attempted murder of governor Boggs.  The grand jury determined there was not enough evidence and no charges were filed.

Rather than releasing Porter, the prosecutor charged him with escaping from jail.  Rockwell was convicted of escaping from jail (even though he was wrongfully held, it was still a crime to escape).  Realizing that Porter had already spent a significant time in jail for charges that were never filed, the jury sentenced him to an additional five minutes in jail.  The prosecution was not happy.  The court and prosecutor held him for an additional five hours trying to come up with additional charges.  When they couldn’t find any new charges, they released him and he immediately fled to Illinois.

Jury verdicts of this type were not uncommon before the civil war.  England also struggled with this issue.  When the English parliament made writing a bad check a capital offense, juries refused to convict people for writing bad checks and refused to sentence them to death.

Because the prosecutors and courts felt that juries were often too sympathetic or too harsh in meting out punishments, the courts and legislatures abolished that right.  Presently, juries are rarely allowed to determine the sentence following a criminal conviction.   In Utah, juries are only allowed input on the sentence in death penalty cases.  In fact, the courts have taken it one step further.  Not only are juries now prevented from having input regarding an appropriate punishment, the lawyers are forbidden to even mention to the jury that any punishment will be given and how much that punishment might be.

Trial by jury is not nearly as significant a right as it was prior to the civil war.

More recently, trial by jury has been under a new attack.  The United States and Utah constitutions not only guarantee trial by jury in criminal cases but also in civil cases.  Many believe that juries make bad decisions in civil cases.  They are now pressing legislatures to curtail the right to trial by jury in civil cases.

For example, this last session, the Utah legislature passed a “tort reform” measure that limited the amount of general damages that a Utah jury can award in medical malpractice cases.   In other words, even if a jury believes that more money should be paid, the jury is not allowed to make that determination.  The legislature applied the cap across all cases.

I find it ironic that those who bellow the loudest during the Fourth of July holiday about the fabulous gift our founding fathers gave us by including the right to trial by jury, are frequently the same people who support bills in the legislature to further curtail the right to trial by jury.

I personally believe in the right to trial by jury.   Sometimes it is scary to put your fate in the hands of eight or twelve peers.  In my experience as an attorney, having tried numerous cases to a jury, juries almost always come to the right result.  Eight common citizens putting their minds to a task is a powerful tool.  I hope that the members of our legislature live up to their rhetoric and support trial by jury.

The Utah Court of Appeals issued a decision today (click here to see it) in which a patient of Gold Cross Ambulance sued Gold Cross for charging her $10 per page for a copy of her medical records.  Dianna Espinoza wrote to Gold Cross and requested a copy of her medical records.  The records were only three pages.  She asked that Gold Cross mail them directly to her attorney.  Gold Cross agreed but insisted on being paid $30 to release the records.  Espinoza sued claiming that the fees were excessive.

Espinoza pointed out that under medicaid laws, a health care provider can charge no more than 12 cents per page plus postage.  She estimated the fair amount to charge was 75 cents.  Espinoza also pointed out that a federal law, commonly referred to as HIPAA, limited health care providers to charge no more than the actual cost of copying plus postage when a patient requests records.

Gold Cross argued that it could charge whatever it wanted to charge.  Gold Cross did concede that if Espinoza had requested that the records be mailed to her Gold Cross would have charged nothing.  Because they were going to an attorney, Gold Cross charged $10 per page.

The Utah Court of Appeals ruled in favor of Gold Cross.  The Appellate Court held that HIPAA does limit the amount a health care provider can charge to the actual cost of copying.  However, when HIPAA was enacted, congress did not give patients the right to sue for violating this particular provision of HIPAA.  Further, Utah State law did not place any limit on how much a health care provider can charge for medical records.