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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.

Shifting the Burden of Proof

When a Plaintiff files a personal injury lawsuit against a Defendant, the law states the Plaintiff has the burden of proving his case.  This means the Plaintiff has to prove that the Defendant was negligent and said negligence was a cause of his injuries.  However, in certain circumstances, the burden of proof shifts to the Defendant and he is then forced to disprove his negligence.  This is known as res ipsa loquitur, and occurs whenever a court can reasonably find that the event is of the kind which ordinarily would not occur in the absence of someone’s negligence and the  Defendant’s inferred negligence was, more probably than not, a cause of the injury, the doctrine of res ipsa loquitur applies even if a Plaintiff’s negligent acts or omissions may also have contributed to the injury.  An example of this type of situation is when a doctor leaves a sponge inside a patient upon completion of surgery or he operates on the wrong body part. 

 

In breaking these situations down, Colorado courts have noted that a Plaintiff does not need to positively eliminate all explanations other than the Defendant’s negligence, but instead a Plaintiff has done enough where “the facts proved reasonably permit the conclusion that negligence is the more probable explanation.”  It’s important to note that a Plaintiff does not need to exclude all others beyond doubt to show that the Defendant, rather than someone else, was more probably than not, responsible for the negligence.  Equally important is that in determining whether to give a res ipsa loquitur instruction, the court must look at the evidence in the case and all legitimate inferences to be drawn therefrom in the light most favorable to the Plaintiff. 

 

The doctrine of res ipsa loquitur has been long standing in Colorado and can be very helpful to Plaintiffs who have been injured by a Defendant’s obvious negligence.  In fact, the Colorado Court of Appeals affirmed the res ipsa loquitur doctrine on December 27, 2012 when they reversed a trial court’s decision to not shift the burden of proof to the Defendant once the presumption of negligence arose.  The Court stated that under the doctrine, “once the presumption of negligence arises, the burden shifts to the Defendant to overcome the presumption, and to establish affirmatively that no negligence existed on his part.”  For more information of this recent case, see Harner v. Chapman, 2012 COA 218 (Colo. App. 2012).

RIL

In follow-up to my January 25th blog post, I am pleased to announce that on February 7, 2013 the Colorado Court of Appeals upheld Steve Kaufman’s verdict against Shelter Insurance.  As a brief recap, Mr. Kaufman tried this case with another Kidneigh & Kaufman Denver personal injury lawyer, Charlie Crichton, in August 2011 in Denver District Court. On behalf of their injured client, Mr. Kaufman and Mr. Crichton argued that the client’s insurer, Shelter Insurance, did not sufficiently advise the client about uninsured/underinsured motorist coverage in order to allow him to make an informed decision regarding whether to purchase or reject the coverage.  After a four day trial, Denver accident lawyers Mr. Kaufman and Mr. Crichton obtained a verdict of approximately $500,000 for their client.

 

Shelter Insurance appealed the trial court’s decision and oral arguments took place on January 28th.  In a quick turnaround, the Court of Appeals issued their decision a mere 10 days later.  The Court concluded that:

(1) the trial court did not err in reforming the policy at issue to provide UM/UIM benefits;

(2) sufficient evidence supported the trial court’s finding that Shelter unreasonably delayed and denied UIM benefits, and the court was not prevented as a matter of law from reaching that conclusion; and

(3) the trial court did not err in its award of attorney fees.

 

With respect to the above findings the Court stated that “[r]eformation of an insurance policy is an equitable remedy within the trial court’s discretion” and in this case, the trial court’s findings were “amply supported by the record” and thus reformation was appropriate.  Similarly, the Court determined the trial court had “ample record support” to conclude that it was unreasonable for Shelter to withhold the indisputably owed benefits for almost three months. 

 

Lastly, the Court upheld the trial court’s award of attorney fees and further concluded that the Plaintiff was also “entitled to recover the reasonable appellate fees that he incurred in successfully defending his judgment.”  With the addition of appellate attorney fees, the award for our client will be well over $500,000.

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Failure to Mitigate Damages

In a December 27, 2012 decision, the Colorado Court of Appeals held that it was error for a trial court to give an instruction allowing the jury to find that the Plaintiff failed to mitigate her damages if she “continued to undergo expensive treatment when it was not resolving her pain.”  Under the law, an injured party must take reasonable steps to mitigate his or her damages and as such, may not recover damages for injuries that could reasonably have been avoided.  However, the Court noted that in the context of personal injury matters, “a failure to mitigate usually concerns a Plaintiff’s unreasonable failure to seek medical advice or unreasonable failure to follow that medical advice once received.”

 

In this case, the Court of Appeals found error in the trial court’s instruction because there is no Colorado case law, statute, or treatise holding that an injured party has a duty to stop medical treatment because it is costly or isn’t helping to resolve the pain. In fact, the general rule concerning failure to mitigate in the personal injury context is “any suffering or disability incurred by one who has sustained personal injury, when the same could have been avoided by submitting to treatment by a physician selected with reasonable care, must be excluded as a ground of recovery.”

 

Here, the Court found that the instruction was improper because the failure to mitigate assertion didn’t focus on the Plaintiff’s inaction.  In fact, the Plaintiff testified that her medical treatment was helping alleviate her pain but was forced to stop treating because it was too costly.  Accordingly, the Court remanded this case back to the trial court holding that “the court should not instruct the jury that [the Plaintiff] continuing to receive expensive treatment that was not resolving her pain constitutes a failure to mitigate.”

 

For more information regarding this case, see: Banning v. Prester, 11CA1093 (Colo. App. 2012)

Colorado Courts

Jury Duty

While very few people actually want to get picked for jury duty, it’s truly an experience that those who do get chosen come to appreciate.  Because nearly every person who had served on a jury will tell you how beneficial the experience was, it’s too bad that the majority of people will do just about any thing to get out of jury duty.  So next time, you get a summons in the mail to appear for jury duty, try to view the situation differently that you normally would and think about how if you are chosen to be on the jury, you have the ability to truly make a difference in other people’s lives.

Jury participation is critical for our legal system and ensures a fair verdict.  Jurors, not judges and lawyers, are the ones who actually decide guilt and damages.  Thus, being a present and thoughtful juror matters as well.  The parties involved in the trial are real people whose lives will be affected greatly by the outcome of the trial and they are relying on you to pay attention to the arguments and follow the law.  Too often, jurors use this opportunity to advance their own agendas and beliefs.  While it’s difficult to separate your personal opinion, it’s imperative that as a juror you remain impartial and follow the law.  To do otherwise, directly causes injustice to the case parties.

 

Just like voting and paying taxes are an obligation of U.S. citizenship, so is jury duty.  However, rather than viewing it as an obligation and something to be dreaded, get excited that you have the opportunity to participate firsthand.

In Colorado, and many other states, proper liability insurance is required to drive a car.  In fact, since 1997, Colorado has maintained a database that lists specific individuals and whether they hold the proper amount of insurance.  Because motor vehicle accidents are common, dangerous, and expensive, the goal of the database program is to decrease the number of uninsured drivers on the road and thus the expenses caused by these accidents.  This database is available and often reviewed by traffic courts, government agencies, and law enforcement personnel.

 

The minimum amount of bodily injury liability insurance required in Colorado is $25,000 per person and $50,000 per accident.  $15,000 per accident is mandatory for property damage.  While not mandatory, underinsured and uninsured motorist coverage is also extremely important to purchase in order to protect yourself and ensure you are taken care of in the event you are injured in an accident and the at fault party has minimum or no insurance.  You should also be aware that a policy holder must be advised about uninsured and underinsured coverage, given the option to purchase it, and can only waive this type of coverage in writing.  If not waived in writing by the policyholder, the minimum limits of $25,000 per person and $50,000 per accident will apply to the policy.

 

Lastly, if you are ever in a situation where you receive your bill for your insurance premium and feel it is incorrect, be sure to pay your premium in a timely manner to ensure you are covered and then  dispute the bill.  Please do not put yourself in a situation where you do not pay your premium, lose your coverage, and then get in an accident without any insurance coverage.  You can always get a refund from the insurance company if they did indeed charge you too much for your premium, but you can’t go back in time and get coverage for an accident that occurred during the period of time you refused to pay your premium because you were disputing the amount.

car insurance

On October 4, 2012 the Colorado Court of Appeals confirmed a bad faith breach of insurance contract award against American Family Insurance.  The case arose when the Plaintiff was seriously injured in a motor vehicle accident in August 2008.  Due to his severe injuries, it was quickly clear that his damages were in excess of the combined limits of the at fault driver and his own underinsured policy with American Family.  As such, the Plaintiff requested American Family tender its policy limits. 

 

Despite it being clear that the Plaintiff was entitled to the policy limits, American Family delayed payment for several months based on its erroneous belief that it did not have to make payment until the Plaintiff had resolved his medical lien with Kaiser.  Even after Plaintiff’s attorney informed American Family it had no legal basis to delay payment and offered alternative solutions, American Family refused to tender its policy limits.  The Plaintiff then brought this action against American Family.  The district court found for the Plaintiff and American Family appealed.

 

Based on these facts, the Court of Appeals held that “sufficient evidence supported the trial court’s finding that American Family was liable on the Mahoney’s common law claim” and that C.R.S. 10-3-1116(1) “provides for an award of two times the covered benefit on statutory bad faith claims, regardless of whether the insurer paid the covered benefits by the time of trial.”  Essentially the Court found that American Family acted in bad faith when it refused to tender its policy limits to the Plaintiff when there was clear evidence his damages were in excess of the combined limits and there was no legal basis to withhold payment based on Kaiser’s lien.

 

Lastly, the Court concluded the Defendant was incorrect in arguing the Plaintiff was only entitled to his reasonable attorney fees incurred in the district court and held that the Plaintiff was indeed entitled to his reasonable attorney fees that were incurred during the appeal as well. 

 

The entire opinion can be found at Mahoney v. American Family Mutual Insurance Company, 11CA2120 (Colo. App. 2012).

Scales

Under the Colorado Workers’ Compensation Act, any sole proprietor actively engaged in the business may elect to be included by endorsement as an employee of the insured and shall be entitled to elect coverage regardless of whether such sole proprietor employs any other person under any contract of hire. Thus, while workers’ compensation insurance for a sole proprietor is not required, the Act enables sole proprietors to obtain coverage for themselves.  In an effort to save money, many sole proprietors choose to forego workers’ compensation insurance, likely assuming that if they are injured on the job, the party who contracted for their services will be monetarily liable for their injuries.  However, foregoing such coverage puts a sole proprietor at risk of being limited in the amount of recoverable damages in a third-party action.

In fact, the Court in Calveri v. Anderson, 2012 COA 122, recently held that a sole proprietor contractor who was injured on the property where he was performing tilling work was statutorily limited to $15,000 from the homeowners.  This is because under Colorado statute, homeowners are not required to carry workers’ compensation insurance covering a contractor performing maintenance or repair at their home.  The purpose of this is to encourage participation in the workers’ compensation system and limit the exposure to those who have lawsuits or claims brought against them by uncovered contractors who are injured on the job.

Essentially, if you are a sole proprietor and you choose to opt out of workers’ compensation coverage to save money on premiums, you cannot then make up for it on the back end by suing the employer under common law for your work related injury.  If you are a sole proprietor and want to protect yourself and ensure you are fully compensated for your injuries, the best thing to do is obtain workers’ compensation insurance coverage for yourself.

People often ask, what does a personal injury law firm do?

Personal injury law firms assist people who have suffered injuries as a result of someone else’s negligence.  Lots of law firms say they handle personal injury cases, but only a few can say that their practice is devoted to helping personal injury victims.  True personal injury law firms, like Kidneigh & Kaufman, P.C., can handle a wide variety of personal injury cases, know the ins and outs of personal injury law, and have a reputation for getting results for their personal injury clients.  Kidneigh & Kaufman, P.C. is one of the few personal injury law firms in Denver that fits all of the criteria and would like to help you with your personal injury case.

Steve Kaufman and his then-partner Jon Kidneigh started Kidneigh & Kaufman, P.C. over 25 years ago with the goal of helping personal injury victims. 

Almost three decades later, Steve Kaufman is still devoted to helping personal injury victims.  Over the years, the attorneys of Kidneigh & Kaufman P.C. have had the opportunity and privilege to represent personal injury clients on a wide variety of different cases, including motor vehicle accidents, slip and falls, product liability, medical malpractice, bad faith, uninsured/underinsured claims, and legal malpractice.  This length and breadth of experience in personal injury law means our clients receive representation from attorneys who know personal injury law and how to present a personal injury case in the most favorable light.

As a personal injury law firm that has been around for over 25 years, Kidneigh & Kaufman has been able to regularly obtain favorable settlements for its clients. 

The numbers speak for themselves – over $65 million in settlements for its clients including several million dollar plus settlements.   While other personal injury law firms have never set foot in a courtroom, Kidneigh & Kaufman has gone to trial and won, forcing insurance companies to pay 6 to 10 times their policy limits when they initially denied claims.

A personal injury law firm is best defined by the success it achieves for its clients.  As an example, Kidneigh & Kaufman, P.C. had the privilege of representing a woman in a medical malpractice case in Pueblo.  A sponger had been left inside the client following a cesarean section delivery, which required a surgery to remove.  A personal injury settlement was easily obtained with the hospital because the nurses did not properly count the sponges that were removed after the surgery.  However, the doctor refused to settle and instead, tried to blame the whole fiasco on the nurses.

Although our client had only a little more than $3,000 in bills that she had to pay out-of-pocket, she suffered greatly from an emotional standpoint. 

The jury’s verdict was for $1,000,000 plus her out-of-pocket bills, which the judge then reduced according to the caps that the legislature has unfairly placed on medical malpractice cases.  The doctor appealed the jury’s decision, Kidneigh & Kaufman won the appeal, and the insurance company for the doctor eventually paid in excess of $500,000 for the doctor’s negligence.  This is a great example of how a personal injury law firm can help a client in need.

Call the personal injury law firm of Kidneigh & Kaufman, P.C. today to set up a free consultation regarding your personal injury case.

Denver Accident Lawyer

Denver Accident Lawyer

Anytime you turn on your television, listen to the radio, or drive down the street, it seems like there is an advertisement for a Denver accident lawyer.

However, all Denver accident attorneys are not the same.  Some Denver accident attorneys have many years of experience while others may have just recently graduated from law school and passed the bar.  Some Denver accident lawyers have tried dozens of jury trials while others have never seen the inside of a courtroom.

Some Denver lawyers have obtained several million dollar recoveries for their clients while others have never worked on a case of that magnitude and importance.

Steve Kaufman is a Denver accident lawyer who has over 30 years experience, has tried cases in both federal and state courts, and has successfully obtained million dollar recoveries.  Steve Kaufman is the Denver accident lawyer you want working on your case.

Being a successful Denver accident lawyer is not as simple as making a few phone calls to the insurance company in order to get a case settled.  In fact, being a successful Denver accident lawyer often means working on a client’s case for years before finally getting a fair result.  You want a Denver accident lawyer who is willing to fight for you no matter how long or difficult that fight is.

Steve Kaufman has proved he is the Denver accident lawyer who is willing to fight for his clients no matter how long or difficult the fight.  For example, Steve Kaufman represented a couple who were badly injured in a car accident.  Unfortunately, their insurance company denied coverage which would have paid their medical bills and provided other benefits because the premium had not been paid.  However, the insurance company had sent the cancellation notice only to the wife because she was the policyholder, but they failed to also send the notice to the husband as required by her policy.

On this basis, Denver accident lawyer Steve Kaufman filed the case and took the insurance company to court, arguing that the insurance company had to provide coverage to this couple because it had never effectively cancelled her policy.

The trial court dismissed Mr. Kaufman’s claim, finding that the insurer did not need to send a cancellation notice to the young woman’s husband because the cancellation statute did not require it and because the judge considered notice to the wife to be notice to the husband .  Undeterred, Denver accident lawyer Steve Kaufman filed an appeal and the Colorado Court of Appeals reversed, finding that there was coverage since the policy can give an insured greater notice rights than required by statute and because one spouse is not the agent of the other by virtue of their marriage.

As a result, the insurer paid approximately $400,000 for the couple’s medical bills, lost wages, and the essential services they needed, interest at 18% for the benefits it had withheld, the costs of the litigation, and Mr. Kaufman’s attorneys’ fees.

But Denver accident lawyer Steve Kaufman did not stop there.  When the case went back to the trial court, Mr. Kaufman also wanted to make the insurer responsible for additional damages because it had acted willfully and wantonly, and in bad faith.  The insurer hired an expert to say that it did everything right and once more the trial court threw this aspect of the case out.  Again Mr. Kaufman appealed and yet again the Colorado Court of Appeals found in favor of Mr. Kaufman’s clients.  The appellate court ruled that no argument could be reasonably made in support of the insurer’s denial of benefits and then returned the case to the trial court so that a jury could determine the amount of additional damages.

However, the insurer decided to settle before trial and paid out another $600,000.

Steve Kaufman is a Denver accident lawyer who is willing and able to successfully fight for his clients and their legitimate claims.  People need a Denver accident lawyer when things get tough or the insurance company plays hardball on cases that deserve compensation.  As you can see there is a reason why Mr. Kaufman’s law firm has recovered over $65 million for its clients and while past success cannot guarantee future results we would love to help you in seeking a recovery on your claim.

Call Denver accident lawyer Steve Kaufman today for a free consultation and percentage fees.

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