If you or a loved one has suffered a serious personal injury, don’t expect an insurance company to help you understand the full truth of your situation. Consulting with an experienced and honest personal injury lawyer in California is critical to understanding your legal rights and what you should expect from your legal representative.
Without the representation of a lawyer, an insurance company is your representative. Even if your own insurance company is involved, protecting the company’s assets is more important than your interests.
Types of Personal Injury Cases
Our talented and resourceful team of attorneys is composed of experienced litigators and recognized legal leaders in Oakland and all of California. Whether you are a California resident or a visitor, we will take the time to understand the complexities of your case and fully evaluate what you can expect from legal action in any of the following circumstances:
- Wrongful death
- Construction accidents
- Motor vehicle accidents
- Child injuries
- Physical elder abuse
- Nursing home neglect
- Property owner liability
- Sexual molestation
- Health care provider sexual abuse
- Sexual Harassment at Work
- Brain injuries
- Burn injuries
- Electrocution/electrical injuries
- Spinal cord injuries
We work to obtain the maximum compensation available to our clients under California law for physical, emotional, psychological and financial losses. If you or a loved one has been involved in a serious accident or suffered abuse, it is critical that you consult with an experienced and compassionate attorney as soon as possible.
How Important Is a Police Report in a Personal Injury Case?
Filing a personal injury lawsuit can be a long and involved process. Both sides will spend time compiling evidence that supports their case. A police report can be a valuable asset in your personal injury case, but maybe not in the way you might think. Here’s what you need to know about your police report and how it may affect your personal injury proceeding.
What’s in a Police Report?
If you’re involved in an accident, a police officer will arrive at the scene and determine if there are any serious injuries that require medical attention. If you sustained harm in an accident, you may be traveling to a hospital by ambulance and not see a police officer at all. In this instance, a police officer will do what you cannot; gather evidence. This may include:
- Pictures of the accident scene
- Witness statements and contact information
- Photos of property damage – both vehicles, their positioning, and any damage sustained to area landmarks
- Insurance information from the other driver
- Official statements from the drivers
In addition, the police may measure the skid marks and make note of other physical evidence surrounding the crash scene. After reviewing the evidence, the police officer will make a designation of fault in their report.
Getting a Copy/Issuing a Statement
Police officers are busy and many departments are overworked, so it’s possible that an officer will not come to your hospital room for a statement. When you’re feeling up to it, however, it’s a good idea to call the station and ask to make a statement for the police report. This will make your version of events a matter of official record, which may have bearing on your insurance company’s investigation.
Insurance Companies and the Police Report
Insurance companies have their own investigations that determine fault, but they often use the police report as a guide. They may request copies of the report for their own use, and this can help them determine what happened at the accident.
The police report could prove to be valuable in negotiating with insurance companies. If you sustained a serious injury, and plan on suing the other driver under Florida’s no-fault insurance exceptions, a police report designating the other driver’s fault can give you the upper hand. Your attorney can use the information in the police report to negotiate fair compensation for your injuries.
Police Report and Court
If your case makes it to trial, understand that the police report is not admissible in court. This is because it’s technically hearsay: The police officer made an educated guess about what happened based on physical evidence and witness accounts. The information contained in the police report, however, can give your attorneys a jumping off point for collecting evidence that is admissible in court.
A police report could be valuable to your personal injury case. If you didn’t give a statement at the accident scene, remember to provide one once you’re feeling well enough. The information could make a difference in your civil proceeding.
Why Hire a Personal Injury Lawyer?
It is almost always a good idea to at least seek the advice of an attorney in a serious personal injury case. A good attorney will know how to perform the necessary investigation and hire the right experts to help insure full compensation. In addition, even in case with low insurance policy limits, the attorney may be able to put together a case against another defendant who will be more able to fully compensate a seriously injured plaintiff for the full extent of their damages. Under California law a seriously injured plaintiff is entitled to recover all of his or her past and future medical expenses; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant’s conduct is particularly bad, punitive damages the excess damages which are awarded to punish the defendant.
What Damages Are Recoverable in a Personal Injury Case?
In a serious personal injury case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.
The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.
Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.
Any person, child or adult, is entitled to recover damages in a personal injury case as long as they can prove that another person or entity is at fault and caused their injury. One does not need to be a resident of California or even a resident of the United States to qualify.
In cases in which the victim is a child under 18 or incompetent, the law provides special protections and requires that a guardian be appointed for the purposes of the litigation. That guardian then oversees the case and, along with the Court, approves any settlement. The settlement funds are then either put into a protected trust account or paid over time to the victim until he or she becomes a competent adult, unless the settlement proceeds are needed earlier to cover health expenses.
The spouse of the injured plaintiff can also bring their own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.
Punitive Damages in a Personal Injury Case
Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.
Unless the defendant in a case is a large corporation or an individual with significant assets, insurance coverage becomes particularly important. Although a plaintiff can sue an individual or company for more than the insurance coverage, collecting in such a case can sometimes be very difficult. Unfortunately, many people in California are uninsured or carry very minimal insurance; therefore, sometimes a victim has to look to his or her own insurance policy to provide or supplement insurance proceeds. In the case of a motor vehicle or pedestrian accident, this will result in an uninsured or underinsured motorist case where the plaintiff can sue his or her own insurance company up to the insurance policy’s limits.
Further, this is a reason why there needs to be a thorough investigation to determine if there are other potential defendants who are better able to pay a plaintiff’s damages.
Under California law, if a driver in an automobile does not have his or her own insurance policy, he or she is not entitled to recover damages for pain and suffering against the other driver.
Most Frequently Asked Questions (FAQ) in a Personal Injury Case
- What is a serious personal injury?
- In California, legal cases can be brought for personal injury whether serious or not. However, practitioners generally consider spinal cord injuries, traumatic brain injuries, amputations, significant burn injuries, fractures, herniated disks and major psychological disorders as serious personal injuries.
- Who can sue for serious personal injuries?
- Any person who is injured in California can bring a serious personal injury case under California law. In the case of minors or incompetents, the case must be brought for the minor or incompetent by a parent or guardian appointed by the Court. This is a very simple procedure.
- Who can be sued in a serious personal injury case?
- Any person or entity whose negligent or intentional wrongful conduct contributed to the serious personal injury can be sued. The only requirement is that the person or entity sued is at least partially at fault.
- What if I am partially at fault for causing my own injury?
- California is a comparative fault state. A person can sue for serious personal injury even if they are partially at fault. As long as they can prove that one or more other parties are also at fault. However, the amount of a plaintiff’s recovery will be reduced by the amount of their fault. Therefore, if someone is awarded $5 million in a serious personal injury case, but are found to be 50% at fault, the recovery will be limited to $2.5 million.
- What if I am injured at work?
- Work injuries are common. Unfortunately, if the only entity or person at fault for the injury is the employer, in almost all circumstances, an employee cannot sue the employer in civil court. The employee’s damages are limited to workers’ compensation remedies. The good news is that workers’ compensation covers an employee who is injured at work even if the accident is strictly the employee’s fault, however, the bad news is that workers’ compensation benefits are extraordinarily limited, rarely include a full recovery for a wage loss and allow no recovery for loss of earning capacity, pain and suffering and emotional distress.
- If the wrongful conduct of anybody other than the employer contributed to the worker’s injury, the worker can sue the negligent party. For instance, in construction accidents, frequently someone at a job site other than the employer is responsible or partly responsible for the plaintiff’s injuries. In this situation a plaintiff can recovery both workers’ compensation benefits and sue whoever else is responsible in civil court.
- Is it valuable to perform an investigation and to retain experts in a serious personal injury case?
- It is critical that a thorough investigation be performed, usually by an investigator hired by an attorney in a serious personal injury case. The sooner the investigation can be performed the better, because more evidence will be available. A good investigation should attempt to pin down the fault of a potential defendant, and could potentially point to the existence of other defendants who are responsible for the incident; and establish that the plaintiff’s fault is minimal or non-existent.
- Expert witnesses are almost always retained by good law firms in serious personal injury cases. Experts can help establish the liability of a defendant(s); document the plaintiff’s injuries and predict a plaintiff’s future medical needs and loss of income.
- What damages are recoverable in a serious personal injury case?
- Under California law a seriously injured plaintiff is entitled to recover all of his or her past and future medical expenses; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant’s conduct is particularly bad, punitive damages the excess damages which are awarded to punish the defendant.
- Is insurance coverage important?
- Insurance coverage is critical in any serious personal injury case. Serious personal injuries, almost by definition, will result in a potential damage award of hundreds of thousands of dollars or perhaps millions of dollars. For plaintiff to receive their full compensation it is critical that the defendant is either an individual or a large corporation with considerable assets or that there is sufficient insurance coverage. This is why it is so important for the plaintiff’s attorney to conduct a thorough investigation to make sure that all possible defendants are included in the case, which will increase the chances of there being enough insurance coverage or money available to compensate the plaintiff for their injuries.
- Another means to insurance coverage may be the plaintiff’s own underinsured motorist policy. If the policy limits of the plaintiff’s own uninsured/underinsured motors policy are high enough, the plaintiff will be able to recover against his or her insurance company if they can prove that someone else is at fault for the accident.
- How long do I have to file a serious personal injury case?
- Generally speaking, a serious personal injury victim has one year from the date of the accident to bring a lawsuit. If the case is against a public entity, a claim must be filed within six months whether the plaintiff is a minor or adult. In the case of minors, generally, a case can be brought on behalf of a minor up until their 19th birthday. There are exceptions to all of these rules. Someone should seek the advice of an attorney as soon as possible if they are suffering a severe or serious personal injury.
- Will my case settle out of court?
- Probably. Ninety to 95% of serious personal injury cases settle at some point before trial.
- Is there a limit of how much money I can be awarded for my serious personal injury?
- No, except medical malpractice claims which limit pain, suffering and emotional distress damages to $250,000.
Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with one of our distinguished Oakland attorneys.
Personal Injury Publications
- “Serious Personal Injury Cases — What Every Consumer Needs to Know“, John Winer, Partner at Winer, McKenna & Burritt, LLP.
- “Frequently Asked Questions Regarding Serious Personal Injury Cases“, John Winer, Partner at Winer, McKenna & Burritt, LLP.
- “Frequently Asked Questions Regarding Amputation Injury Cases“, John Winer, Partner at Winer, McKenna & Burritt, LLP.
- “Frequently Asked Questions Regarding Burn Injury Cases“, John Winer, Partner at Winer, McKenna & Burritt, LLP.
Representing Clients in Northern And Southern California
Oakland Personal Injury Attorneys at Winer, McKenna & Burritt, LLP, we adhere to high ethical standards and hold negligent parties accountable. We fight for our clients and keep them fully informed throughout the legal process. Our law firm and our attorneys are staunch advocates for justice throughout California. With offices in Oakland, San Francisco and Los Angeles, we provide one-on-one representation to clients across the state.
Contact our Oakland office today at (510) 433-1000 toll free to speak with an experienced attorney. Strict statutes of limitations apply to all personal injury cases.
Free Consultation With An Attorney
Contact Winer, McKenna & Burritt, LLP, Oakland personal injury lawyers today at (510) 433-1000 to speak with an injury lawyer in our Los Angeles, San Francisco or Oakland offices.
“I would highly recommend the law firm to any person or family who has suffered a serious injury or the wrongful death of a loved one.”
-Diane Rito, Former Executive Director, San Francisco Trial Lawyer’s Association