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While negligence will likely be the principal cause of action for most cases arising out of a motor vehicle collision, it may be necessary to plead other associated causes of action. For example, the Federal Tort Claims Act provides the cause of action based on the negligence of a federal governmental employee. A claim involving the negligence of a state, county, city or political subdivision employee is brought under Colorado’s Governmental Immunity Act (CGIA) to the extent that act waives sovereign immunity pursuant to C.R.S. §24-10-106(1). If you are bringing a claim under the CGIA, it is important that you file a written notice pursuant to C.R.S. §24-10-109 within 182 days after the date of the discovery of the injury. This must be done regardless of whether you knew then all of the elements of the claim or cause of action. Failure to file a written notice within the 182 day time frame will bar any action you may have had.

Usually claims involving the negligence of a public employee under the CGIA are brought against the employee’s governmental employer under a vicarious liability theory. However, the CGIA also allows claims to be brought individually against the employee when the employee acts willfully and wantonly in causing the injury. But, think twice before alleging as part of a cause of action that a public employee acted willfully and wantonly, since if proved the employee’s governmental employer is not itself liable for or obligated to pay on behalf of its employee a settlement involving the employee or judgment against the employee. Furthermore, if a plaintiff does not substantially prevail on a punitive damage claim against a public employee, the court shall award attorneys’ fees
against the plaintiff and/or the plaintiff’s attorney.

A claim for wrongful death is a cause of action that is made in conjunction with the negligence or other cause of action regarding the cause of death. This cause of action includes claims for the survivors’ economic losses and certain non-economic losses. A punitive damage claim can also be made in lieu of having to prove non-economic damages, a cause of action for solatium can be pled that entitles the plaintiff to non-economic damages in a fixed amount. During the first year following death, only the spouse may make a wrongful death claim, unless the spouse elects to allow the decedent’s heirs to join in the claim or to pursue the claim without the spouse. A survival cause of action also should be pled to recover the loss of earnings and expenses, such as medical expenses, the decedent incurred prior to death.

Causes of action for injuries resulting from motor vehicle collisions include claims based on: a tortfeasor’s (the responsible party) individual liability for the tortfeasor’s own acts and omissions; vicarious liability; contract; an injury to another (i.e. derivative claims); based on wanton and wanton conduct; and the right of subrogation. Negligence is the most often pled cause of action based on a tortfeasor’s own acts or omissions that give rise to a personal injury claim arising out of a motor vehicle collision.

What is important to recognize, however, is that not only the other driver that collided with your car or the driver of the car you were a passenger in might have been at-fault, but the negligence of others who were nowhere near the accident when it occurred may give rise to a cause of action against them. Other persons or entities may also be vicariously liable for the negligence of the at fault driver, meaning they are liable simply because of the type of relationship they had with the at fault driver or because of a contract insuring you. Derivative claims are claims made by persons not based on injuries they suffered in the collision, but are based on their relationship to someone who was injured or killed in the accident and the damages sustained as a result of the effect of the accident on that relationship. A cause of action based upon the willful and wanton conduct of a tortfeasor is one for punitive damages, intended to deter and punish.

Claims made by or against a minor may be brought by or against the minor through a next friend, usually a parent or guardian. In cases where it appears that your damages may exceed the insurance policy limits of the at fault driver, it is suggested that you bring a claim against as many parties as can be named consistent with the facts, rules of ethics and the economic practicalities of the case.

You may ask why do this in cases where an insurance policy will cover both the at-fault driver and, for example, another party brought in under a theory of vicarious liability, but yet will provide the same amount of coverage regardless of whether just the at-fault driver was sued, or both the at-fault driver and the vicariously liable party were both sued. One reason is that the vicariously liable party,such as an employer or parent, may have assets to satisfy all or part of an excess judgment that the at-fault driver does not have. A second reason is that any party at risk of losing personal assets will have an incentive – that a judgment proof at-fault driver would not have – to put pressure individually or through excess counsel on the insurer to settle within policy limits by making telephone calls, writing letters and showing up at a settlement conference. This increases the chances of the case settling, with the insurer paying a higher amount. Also, in cases that do not settle under such circumstances, the insurer may be willing to provide its insureds with a protection letter providing coverage without limit in order to avoid a bad faith claim being asserted against it for not settling within policy limits.

While this is a lot of information, the main takeaway is that if you’ve been injured, there may be parties that are responsible for your injuries that you were not aware of and should be held accountable. The personal injury lawyers at Kidneigh & Kaufman know this and are here to help you receive the compensation you deserve.

Cell Phones and Driving

As 2016 begins, it is safe to say that the majority of drivers on the road not only have a cell phone, but that cell phone is always in the car with them. With this in mind, I would urge all of those drivers who this applies to, to put your cell phone away each and every time you start your car. In short, STOP using your cell phone while you’re driving! Each year, over 300,000 car accidents occur as a result of drivers using their cell phones, both talking and texting, instead of paying attention to the road. With this many accidents and serious injuries, including fatalities, being caused by cell phone usage while driving, it is time that those of us on the road start taking driving seriously again. The average car weighs 2,000-4,000 pounds and there is no way to safely operate one without giving your full attention to the task at hand. Whether you have been driving for many years or only a few months, the importance of paying attention to the road and the traffic around you is not something that requires less attention over the years.

Many people have the opinion that they are “good at texting and driving.” There is simply no such thing. If you are driving and also using your cell phone, there is a good chance that at some point you will cause an accident that will most likely injure you, someone you love, or someone that you have never even met but who’s life you will significantly affect. At the very least, being at fault for any accident will almost certainly cause you an extreme amount of frustration as you deal with making a claim with your insurance company, handling the repairs to your vehicle, paying for the repairs and your higher insurance premium, etc. The point is that it simply is not worth it to use your cell phone while driving.

Think about every text or phone call you have made while driving and really ask yourself if it couldn’t wait until you were out of the car. 99% of the time, that call or text can wait. In the rare case that it truly cannot, then all you have to do is pull into the nearest parking area and safely use your phone. It really is that easy. The truth is that no one really needs to use their phone while driving. You don’t need to check your Facebook, Instagram, or email when you’re in the car, all of this will still be there when you reach your destination. For those of you who are driving with your kids in the car, think about the example you want to set for them. Eventually they too will be out on the road and need to understand the importance of not using a cell phone while driving.

So the next time you get in your car, don’t tempt yourself. Put your cell phone someplace that is out of reach so that when you’re at a stoplight and itching to check your phone you won’t be able to.

Over six million car accidents occur in the United States each year and, fortunately, most are relatively minor.  As personal injury attorneys, we deal with car accidents every single day.  Inevitably, a client or friend will ask me, “what should I do if I get into an accident?”  Obviously, there are many different things that you can and should do depending on the circumstances, but here are 5 things that everyone should do if they are involved in an accident:

  1.  Call the police:  Surprisingly, many of our clients fail to call the police after an accident occurs.  They often do not want to wait for the police to arrive or do not want to inconvenience the other driver.  However, it is critical that the police are called to document what happened and determine who was at fault for the accident.  Sometimes stories can change: the friendly driver who rear-ended you and said it was all his fault and that he would take care of everything later calls his insurance company and says that the accident was actually your fault because you stopped suddenly on a green light.  Without a police report, it becomes a he said, she said situation.  Police reports not only show how the accident occurred, but can also document the damage to the vehicles, the injuries to the parties, and the contact information for any witnesses.
  2. Record the details of the accident: Remember to document everything you can about the accident.  The names of any witnesses, the insurance information for any vehicles involved in the accident, the contact information for the police officer are all important pieces of information.  A camera phone is an extremely valuable tool in a car accident.  Use it to take photos of the vehicles, the insurance cards, and any other relevant documents.
  3. Report the accident to your insurance company: Notify your insurance company as soon as possible if you were involved in an accident.  Most insurance policies have a provision that requires policyholders to notify immediately and cooperate fully in the event of an accident.  You also want to find out what types of coverage you have and what the limits are for each type of coverage you have.  For example, you may have medical payments coverage, which will actually pay for your medical bills following an accident, so you don’t have to pay out of pocket!
  4. Seek medical attention if you are injured: If you feel you’ve been injured after a car accident, it’s important that you seek medical treatment right away.  Even though you may feel fine immediately after the accident, pain can develop over the next few hours and days after the adrenaline wears off.  It is also important to document the pain you are feeling following as it can be difficult to remember days, weeks, or months later.  The longer you wait to seek medical attention, the more difficult it can be to prove that your injuries were related to the accident.
  5. Protect your rights:  Within days or sometimes even hours of an accident, the other driver’s insurance company may contact you to ask for a statement or to request your medical records.  Before you speak to an insurance company, talk to a personal injury attorney about your case.  Most attorneys will provide a free initial consultation so that you can better understand how to protect your rights and your potential claim.

Remember to drive safely and be careful so, hopefully, you never have to use these tips.

 

 

Like most football fans, I have been following the coverage of the Saints bounty program very closely.  For those who don’t follow the NFL as closely as I do, the New Orleans Saints allegedly had a bounty program in which defensive players were to be paid for big hits that knocked opposing players out of the game.  Jonathan Vilma is alleged to have participated in the bounty program and have also contributed $10,000 of his own money to the program.  For his involvement in the bounty scheme, NFL commissioner Roger Goodell suspended Mr. Vilma for one full year.  In response, Jonathan Vilma has filed a defamation lawsuit against Roger Goodell and the NFL based on their statements regarding his involvement in the bounty scandal.  I can’t remember any other time when a player of a major sport sued the commissioner of that sport.  It will certainly be a tough road for Mr. Vilma as he will have to prove that Roger Goodell knew his statements were false, acted with malice, and caused damages and personal injuries to Jonathan Vilma.  If Jonathan Vilma is successful, it could totally change the relationship between the players and the commissioners office.  Stay tuned to see what happens. 

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