The Seattle Personal Injury Blog
Posted Friday, November 20, 2020 by
Chris Thayer
In Washington, like many states, the vast majority of all injury claims are resolved through non-court remedies nowadays. These include negotiations with insurance adjusters, negotiations with defense lawyers, mediations, arbitrations, and privately held conferences. Even those cases that are filed as lawsuits in court often resolve through settlement of some sort. So, why is it important to still work with experienced trial lawyers, and how do these types of non-litigation methods of settlement actually work in Washington?
*Alternative Dispute Resolution*The term for all these various forms of out-of-court settlement negotiations is alternative dispute resolution (or “ADR”). ADR consists of any form of resolution method that is kept private and does not require a trial in court. Under federal law, these types of settlement methods are favored in the Federal Arbitration Act (FAA), under Title 9 of the U.S. Code. That federal statute states unequivocally that:
“an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (See Sect. 2 of FAA).
Therefore, in most instances, contracts and agreements to arbitrate will be upheld, except where there is a good legal reason not to. For these reasons, many courts are reluctant to permit cases to be filed in court where the parties previously agreed to arbitrate. So, what is arbitration exactly?
*Understanding the Terminology: Arbitration vs. Mediation*Mediation is a voluntary process, typically, whereby a plaintiff and defendant sit down with their respective legal counsels and attempt to hash out differences and negotiate a fair and mutually agreeable settlement. Mediations are led by mediators, who are typically retired attorneys or judges with many years of experience resolving claims this way. Mediations are also sometimes mandatory in other proceedings, such as divorce court. In the context of personal injury claims, they are used as a way to assist the parties in reaching an agreement prior to a trial.
Arbitration, however, is usually a mandatory process required by a court. At one time, all cases with a claimed value under $15,000 had to proceed to arbitration. This is a process where an arbitrator (certified by the state to perform arbitrations) hears the case outside of court and renders an award, much like a verdict. However, the limit was once raised to $50,000 and has been recently raised again to $100,000. This means any case with a claimed value of less than that must proceed to arbitration first.
*What Happens if You are Unhappy with an Arbitration Award?*Those who are displeased with the arbitration award may request a trial de novo, meaning “new trial.” However, if the party who demands trial is not successful in improving the outcome for their side, then they are assessed costs and attorney’s fees. This can be a strong reason to accept the award. But it also means that a rogue arbitration award that is not connected to reality can and should be challenged by going to trial.
With all of this in mind, it should come as no surprise that experienced litigators fair better in arbitrations and mediations. This is largely because of two things. First, the defense knows they are likely to improve the award at trial, so they are more likely to pay better settlements and possibly not even require the case to reach arbitration or trial. Second, experience helps to better inform settlement decisions. So, if you or a loved one are suffering injuries from an accident in Washington, give Pivotal Law Group a call today. Let us discuss your case free of charge and provide you and your family with peace of mind knowing you are represented by experienced trial lawyers who can go the distance.
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Posted Friday, November 13, 2020 by
Chris Thayer
No. Washington State does not apply a “no-fault” approach to insurance claims. However, there are some situations in which similar results may apply. Also, there are times when Washington State drivers get into accidents with drivers from so-called no-fault states. Finally, there are situations in which injured motorists may get into disputes with their own insurance carriers over things like uninsured motorist policies and medical payments insurance. For these reasons, it is worth noting the differences between no-fault states and tort-based states, as well as the types of insurance available to drivers throughout Seattle and neighboring cities.
*What is No-Fault Insurance?*No fault insurance is essentially a type of insurance policy that pays a specific limit of coverage no matter who causes the accident. In certain states, like Michigan, New York, and Florida, injured motorists and their passengers must first file claims for injury coverage with their own insurance companies before they can make claims against the at-fault driver who caused the collision. There are some advantages to this approach, such as not needing to fight over fault and faster payment of medical expenses. However, it also tends to deny people the right to compensation and can make it more complicated to get paid for injuries. Washington does not follow this approach.
*What is a Tort-Based Insurance Model?*Washington follows the same approach as the majority of states, which is holding the at-fault driver responsible for all the injuries they cause. That person’s insurance carrier is primarily going to have to cover the injuries, unless it is insufficient to cover all the damages. In that case, we would turn to the injured person’s own insurance company for excess coverage.
*What Types of Insurance Can You Carry in Washington?*In Washington, there are four basic types of injury policies:
- Liability. This coverage pays for the injuries you cause to other people.
- Medical Payments (med pay). This is designed to pay for your medical bills and those of your passengers without any consideration for fault.
- Uninsured Motorist. This insurance covers your injuries and your passengers’ injuries in the event the at-fault driver did not have insurance.
- Underinsured Motorist. This coverage fills the gap between your limits and those of the person who caused the crash. If they had a low policy limit and it leaves you under-compensated, then this insurance makes up the difference.
Out-of-state drivers often carry different limits of coverage or may come from no-fault jurisdictions. In these limited situations, there is a need to review the insurance policies to determine what coverages will apply. This is where an experienced personal injury lawyer comes in handy.
*Steps to Take if Hurt in a Car Accident*If you are injured in a motor vehicle crash in Washington, first call the police and make a report. Next, get medical treatment immediately. Finally, call a lawyer as soon as you are able. The faster that an attorney gets involved, the sooner your rights can be protected. For help, check out Pivotal Law Group online, or just give us a ring to set up an initial case evaluation today.
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Posted Friday, November 6, 2020 by
Chris Thayer
When people are seriously hurt in accidents, one of the common concerns is how much money they will receive. But for older victims or those with terminal illnesses, it is also common to fear what happens if they should pass away before the conclusion of their case. Fortunately, there is good news for Washington State residents who are hurt due to negligence. Washington law allows surviving family members to collect the money upon compensation. Experienced injury lawyers can help to preserve your claim even if you should pass away.
*Washington Survival Act* Under the Washington Revised Code, Section 4.20.046, actions that survive the death of a plaintiff then pass to the probate estate of that decedent. Not all claims pass to the estate, but injury claims generally do. For instance, here are just a few types of cases that can be brought by the surviving representative of the estate:
- Car accident claims
- Slip and fall claims
- Nursing home abuse and neglect cases
- Medical malpractice claims
- Intentional torts (battery, etc.)
*Deadlines That Apply to Survival Claims* In most cases, you will have just three years from the date of injury, not death, in order to bring a lawsuit for your injury. So, if you are injured in a car accident but later die of unrelated causes, your estate will be bound to file a claim with the court within three years of your accident. One court case further explains how these statutes of limitations can be affected by death or disability. There are some unique situations that can change this. For instance:
- If you die due to your injuries, your heirs may have a separate claim for wrongful death.
- If you are mentally incompetent (dementia, coma, etc.), the statute of limitations may toll (be delayed) until after death.
Ultimately, there are many unique facts that can make a significant difference in how long you have to pursue your case. This is why it is so important to schedule a free consultation with a personal injury law firm with decades of experience helping injury victims in Washington State.
*How Wrongful Death Differs From Survival* A survival claim is an injury to the decedent that would have been compensable had he or she lived. If the decedent lived, then that person could have pursued compensation. Due to the death, those rights pass to the decedent’s estate, and any money collected passes by will or action of law.
On the contrary, wrongful death claims are the property of the heirs. The surviving spouse and children bring these claims for their own losses, emotional distress, loss of society and income. These claims do not pass through a will or probate estate. Instead, they are direct claims that can be compensated through negotiations or litigation.
At Pivotal Law Group, our attorneys frequently appear in state and federal courts throughout the state, working hard to protect the rights of injured citizens everywhere. For more information or to speak with an attorney free of charge, find us online or give us a call. There is no obligation and no risk for calling today.
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Posted Friday, October 30, 2020 by
Chris Thayer
Punitive damages are a unique type of award that has little to do with compensation, but instead is focused more on deterring others from acting in a certain way and punishing wrongdoers. Under Washington law, punitive damages are greatly disfavored as a form of relief for injury victims, but this does not mean it is impossible. Experienced Washington trial attorneys know that there are a few tricks of the trade, so to speak, that can sometimes help an injured person recover significant compensation, including punitive damages.
**Understanding What Damages are in General
**Punitive damages are not compensation. In general, there are two types of damages that all people can attempt to claim for their injuries. These are compensatory damages and non-compensatory. Most damages are designed to be compensatory, meaning they “compensate” the injured person or their family. These include things like pain and suffering and medical expenses. Non-compensatory damages are designed to satisfy a policy goal generally, such as statutory damages and punitive awards.
*Compensatory Damages:
* - Medical expenses
- Pain and suffering
- Loss of enjoyment of life - Reimbursement for out-of-pocket expenses - Loss of income and support
*Non-compensatory* - Punitive damages - Statutory damages
*Economic vs. Non-economic Damages* Compensatory damages can also be further broken down into two distinct groups — economic and non-economic. Economic damages are forms of compensation that are designed to make the injured person “whole” again financially. These would be things like medical expenses and lost income. Whereas, non-economic damages are things like pain and suffering, which cannot be easily measured in numerical terms.
*Washington’s View of Punitive Damages* The best way to explain how Washington law views punitive awards is found in Grays Harbor County v. Bay City Lumber Co., a case where the court stated that “punitive damages are generally not recoverable under Washington law unless expressly authorized by statute.” Other cases, such as Dailey v. North Coast Life Ins. Co., have stated that these types of awards are actually “contrary to Washington’s public policy.” These court decisions are even referenced in the comments to Washington County Jury Instructions.
However, there are exceptions. For instance, when the State of Washington is the plaintiff, it can recover treble damages (i.e. three times the award) in some instances. See RCW 19.86.090. There are also situations, such as consumer fraud claims and claims in which a defendant acted so egregiously and recklessly in disregard for human life that the only way to properly punish them and render justice is to award punitive damages. It is frankly a high standard to meet.
*Get the Best Legal Representation * If you or a loved one are seriously injured in a catastrophic event, or a loved one dies due to the carelessness of someone else, you owe it to yourself and your family to contact Pivotal Law Group today. Consultations are free, and you may be surprised by the kind of damages to which you are entitled. Act fast because Washington law imposes strict time limits on securing compensation. If you wait too long, you could forever lose your right to be compensated.
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Posted Friday, October 23, 2020 by
Chris Thayer
When someone is seriously hurt in a car accident, the at-fault party is legally responsible for paying for the damages they caused. However, not every case is so simple. Many times, multiple parties share some of the blame for causing an accident. This can apply to victims, too. Each state must determine how to deal with situations where a victim has done something that contributed to their own injuries. When there is even a slight chance that a severely injured victim may share some responsibility for an accident, a skilled personal injury lawyer is often needed just to get an insurance company to bring money to the table. So, what exactly happens in Washington State when an injured driver shares some liability for the crash?
*The Law Attempts to be Fair* First, it is important to keep in mind that every state deals with this situation differently. There are basically three ways that this situation can be handled. The terms “contributory negligence” or “comparative negligence” are often used interchangeably. But there are differences. The three basic ways of apportioning fault are as follows:
- Pure Comparative Negligence. In a pure comparative negligence jurisdiction, everyone is able to recover for their injuries, even if they share liability. However, their recovery is reduced by the percentage of liability they share. So, in theory, even someone who is primarily responsible for an accident could arguably recover compensation. Though, there are practical reasons why this is very rare.
- Pure Contributory Negligence. In these jurisdictions, a party cannot recover compensation if they are even somewhat responsible. In other words, they must be completely absolved of any liability in order to recover. This is basically the opposite of a comparative negligence state.
- Modified Comparative Negligence. The vast majority of states are moving toward some variation of modified comparative negligence. These states determine just how much fault a victim must have before losing the right to collect.
*Washington’s Approach* Washington State follows a pure approach, which is clearly outlined in Washington State law at RCW 4.22.005. Washington law refers to it as contributory fault, but the law dictates that each party is responsible for their share of liability and that a person who shares some of the blame for their own injuries will have their recovery reduced, but it will not “bar” their claim. In other words, even in situations where a person may be 50/50 responsible, it is theoretically possible to recover compensation.
*How Contributory Fault Affects Recovery* If a victim is injured and their claim is worth $50,000 but they were 10% liable for the accident, as determined through negotiations with the insurance carrier or by a jury at trial, then that 10% will be subtracted from the total value of the case, leaving the injured person to still recover, but only $45,000 ($50,000 minus 10% or $5,000).
Insurance companies will look very hard to find any evidence of shared responsibility. It is one of the easiest ways for an insurance company to reduce the risk of paying out claims. So, if you or a loved one believe you have a claim for injuries and are concerned that you may have done something to cause the injury, you should still talk to a lawyer right away. At Pivotal Law Group, our dedicated team of attorneys stand ready to fight to protect your rights. Give us a call or find us online right away and let us set up a free consultation today.
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