Abbott Law Blog

The Utah Court of Appeals ruled today 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.

The Court of Appeals threw out a wrongful death case today because of a mistake made by the attorney.  This case illustrates the importance of hiring a personal injury that is experienced.

In the case, a teenager was killed in an automobile accident.  Her parents hired an attorney to make a claim.  Because the claim was against the State of Utah, certain procedures needed to be followed.  The attorney followed the correct procedures but followed them too slowly, allowing the statute of limitations to run.

First, on December 11, 2007 the attorney filed a notice of claim with the appropriate governmental entity.  Because the governmental entity ignored the notice, it was automatically denied on February 9, 2008.

Second, on June 10, 2008, the attorney filed a lawsuit against the governmental entity.  That case was dismissed in September 2008.  Because the case was dismissed without prejudice, the parents were allowed to refile.

Third, the attorney refiled the lawsuit on February 12, 2009.

The State argued that the lawsuit was too late.  It had to be filed within one year of February 9, 2008.  Because the lawsuit was filed 3 days late, the case should be thrown out.

The trial court agreed and dismissed the case.

The attorney for the parents did not argue that the time to file the complaint should be extended by three days.  I don’t know all of the details so maybe that argument wouldn’t work.  The argument would go something like this.  Because the original notice of claim was mailed on December 11, 2007, it should not be considered to be delivered until three days later.  Therefore, it would not be automotically denied until three days later, ie. February 12, 2008.  If that were the case, the lawsuit would have been filed within the one year time limit.

In any event, the case is now thrown out and the parents will receive no compensation from the State of Utah for their daughter’s death.

The court of appeals published a decision today clarifying the reach of liability in negligence cases.

A Ryder truck was taken to a repair shop to have the brakes worked on.  During the course of working on the brakes, the shop made a mistake that allowed brake fluid to slowly leak.  No one noticed the leak and the Ryder truck left the shop.  As a result of the slow leak, the Emergency Brake began to slowly engage until the truck wouldn’t move.  A tow truck was called.

When the tow truck arrived, the tow truck driver realized that the drive train was under tension.  In order to tow the truck, he had to release the tension.  In doing that, he was killed.

While this is a very unusual, and even a freak, accident, the law does provide a remedy.  Normally, people are only liable for harms that they could foresee.  In this case, the shop owner claimed that leaving a leaky brake line might foreseeably harm someone driving the Ryder truck, or even someone who was hit by the truck, it wasn’t foreseeable that  a tow truck driver could be killed.

The court disagreed. While the exact mechanism of injury might not have been foreseeable, most people understand that a leaky brake line will likely result in injury to someone, even someone coming to rescue a broken down vehicle.  Therefore, the shop is liable.

The Supreme Court gave a second chance today to the heirs of Sharon Stamper (You can read the entire opinion here). Sharon Stamper was killed in a car crash in 2005 and her husband and children filed a wrongful detah lawsuit against the driver of the car in which she was a passenger.  The trial court threw out the case but the Supreme Court reopened it.  Here’s the rest of the story.

In 2005, Sharon Stamper was employed by Gilbert Development Corp.  She was a passenger in a vehicle driven by Rebecca Johnson.  Johnson was employed by Diamond G. Rodeos.  Johnson and Stamper were driving from Toqerville, Utah to Mesquite Nevada.  Enroute, Johnson failed to negotiate a turn.  The car left the roadway and rolled, ending up on its side.  Stamper died as a result of her injuries.

Stamper’s husband and children filed a wrongful death lawsuit against Johnson.  Stamper’s husband and children also collected worker’s compensation benefits against her employer. 

When someone gets hurt on the job, they are entitled to worker’s compensation benefits.  If they are hurt by the negligence of their employer or co-employee, worker’s compensation is all they get.  It is their exclusive remedy.  If the injured worker is hurt by the negligence of a third party, however, they can also collect personal injury benefits from the third party.  Attorneys frequently call this type of case a third party claim.  When the injured person collects personal injury money, the injured worker is forced to pay back worker’s comp the money the injured worker got.

You might wonder why someone would care to collect personal injury benefits if they already collected worker’s comp and they’re just going to be forced to pay worker’s comp back anyway.  The reason is that the injured worker usually gets a lot more money from a personal injury case than from worker’s comp.  Thus, even after paying off worker’s comp, the injured worker usually ends up with money in her pocket.

The question in this case is whether Stamper and Johnson were co-employees.  If they were, Stamper’s family can’t collect any wrongful death benefits from Johnson’s insurance.  If they were not co-employees, Stamper’s family can collect wrongful death money from Johnson’s insurance.

It would seem obvious that they aren’t co-employees because they work for different companies.  There’s more to the story.  Both companies are owned by the same guy, Steve Gilbert.  Mr. Gilbert asked them to go to Mesquite at the same time.

The trial court judge thought they were co-employees and threw the case out on summary judgment.  The Supreme Court didn’t agree.  The Supreme Court reopened the case.  They sent it back to the trial court judge so the trial court could get some additional information.  Specifically, the trial court must determine if the two women were co-employees as defined in the worker’s compensation act.

Allstate slapped one more of its insured in the face.  Luckily, the Utah Court of Appeals has put an end to Allstate’s tactics.  Ray and Ellen Cassidy purchased Allstate Insurance in 1966 and had been good customers ever since.  In 2006, a 16 year old driver made a U-Turn in from of Ray and Ellen and caused a car crash.  Ray and Ellen had over $200,000 in medical bills.  Unfortunately, the 16 year old driver had only $50,000 in automobile insurance.

Ray and Ellen had been good customers of Allstate for almost 40 years and thought they could turn to Allstate for help.  Unfortunatley, they were not in good hands.  Allstate told them that they had only $10,000 in underinsured insurance coverage.  Allstate did this despite a Utah law requiring that the underinsured coverage on their particular policy be at least $300,000.

Because Allstate would not budge, Ray and Ellen hired an attorney and sued.  Unfortunately, their attorney made a mistake in the complaint when referring to the Utah Statute.  Instead of referring to the code section as 2(h) their attorney referred to the code section as 2(b).  Their attorney had typed a b instead of an h.

Allstate jumped on that error and was successful in getting the trial judge to throw out the entire case due to that error.  The Court of Appeals said no way and reinstated the case.

Are you in good hands with Allstate?  As long as you pay your premiums and make no claims, Allstate will treat you great.  The second you make a claim, you’re no longer in good hands.  Instead, Allstate puts on the boxing gloves and goes after you with shots below the belt.

Ford Motor company has announced that it is expanding its recall of certain Ford vehicles that have a faulty cruise control switch that can cause a fire.  This is the largest vehicle recall ever.  The recent expansion adds about 4.5 million vehicles to the recall.  Over 14 million vehicles have now been recalled.

The switches were sold by Texas Instruments to Ford for about $21.  They were installed in about 16 million vehicles.  Ford finally stopped using them in 2003.  The faulty switch has caused at least 550 vehicle fires.  In some cases, significant property damage has also occurred.  Vehicles parked in garages pose a significant risk to fire damage to an entire structure.

The vehicles covered by the recall include:

The recall appears to be under inclusive.  The switch, or a similar switch, was installed in 16 million vehicles.  Ford has recalled only 14 million.  This means that millions of vehicles may remain on the road and pose a significant fire risk.

Abbott & Associates is now accepting cases in which significant property damage or personal injury has been caused by a vehicle fire.  Call or click for a free consultation.

According to the Centers for Disease Control and Prevention (CDC), motor vehicle accidents are the leading cause of death for people between the ages of 3 and 34 in the United States. In 2008, there were 5,811,000 police-reported traffic crashes, which killed over 37,000 people, and injured another 2,346,000. Statistics show that teens 16-19 years old are at the highest risk of being involved in a motor vehicle crash. In addition, alcohol is involved in a large number of traffic fatalities each year. Last year, almost 12,000 traffic fatalities involved drunk drivers, translating to one drunk-driving fatality every 45 minutes in 2008. The economic impact of motor vehicle crashes is also substantial, costing hundreds of billions of dollars each year.

As grave as these statistics may seem, traffic fatalities and injuries are actually on the decline in this country. Traffic fatalities in the United States decreased by almost 10% from 2007 to 2008. The number of alcohol-impaired fatalities also decreased by nearly 10% in 2008. This decrease may be attributed to recent media campaigns have helped increase public awareness about the dangers of not using safety belts and child restraints. Although much progress has been made in recent years, motor vehicle accidents continue to be the leading cause of death each year. In 2008, 33% of passenger car occupants and 36% of light-truck occupants involved in fatal crashes were unrestrained.

Automobile accidents stem from a variety of different causes. However, most are caused by inattentive drivers. In particular, the use of cell phones and text messaging devices while driving has garnered much public scrutiny in recent years. According to the Governors’ Highway Safety Association, six states (California, Connecticut, New Jersey, New York, Oregon, Washington) and the District of Columbia all ban the use of hand-held devices while driving. As more and more individuals use cell phones to communicate with friends and family while driving, the number of traffic-related accidents will continue to increase. In addition, other factors, such as malfunctioning products, poorly designed vehicles, and substandard tires, cause a significant number of this country’s motor vehicle accidents each year.

If you or someone you love has been injured in a motor vehicle accident, contact Abbott & Associates at (801) 373-1112 to discuss your legal options. Our experienced accident attorneys can help you recover compensation for your medical bills, lost wages, and pain and suffering.

Sometimes it can be tricky to get insurance coverage.  Most insurance policies are written to exclude coverage for intentional and criminal acts.  Even so, sometimes it is possible to force the insurance company to provide coverage even after they deny the claim because they say the act was intentional or criminal.

We handled a case in which a seven year old boy hit an eight year old boy in the head with a hockey stick in the locker room at a hockey camp.  The hit resulted in a skull fracture and a traumatic brain injury.  The homeowners insurance admitted that they provided coverage but they claimed that the injury was not accidental.  Because their policy only covered accidents, not intentional acts, they denied coverage.

We took the case to the Utah Supreme Court and won.  We admitted that the seven year old boy intended to strike our client.  What we argued to the Supreme Court was that the harm that actually resulted was not intended.  A seven year old boy does not expect a skull fracture to result from a playground spat.  The Supreme Court agreed and the insurance company ended up paying policy limits.

Put another way, if someone is playing baseball and they hit a homerun that results in a broken window, that is an accident and insurance should pay to replace the window.  Sure, they intended to hit the ball.  The batter did not intend to break the window.  That was an accident.

Another scenario in which insurance must cover is in autombile accidents.  Even if the insurance policy says it will not cover injuries resulting from criminal acts, Utah requires auto insurers to provide coverage anyway.  That makes sense because most auto accidents are caused by criminal acts.  We don’t usually think about it this way but speeding and running a red light are both crimes.  If insurance companies could get out of covering a car crash anytime a crime was committed, auto insurance wouldn’t be worth much.

Normally I’m not a big fan of arbitration.  I’d rather take a case to a jury than an arbitrator.  Sometimes we have no choice.  We recently had a car crash case where the other driver had no insurance.  My client had personal injuries but no insurance to go after.  So we went after my client’s own insurance company.  We made a claim for personal injuries against my client’s Utah uninsured motorist coverage.  Under the Utah policy, we were forced to go to arbitration rather than to a jury trial.  So that is what we did.

I just got the arbitration award today.  We received double the insurance companies last offer of settlement.  Obviously, we were happy that we didn’t accept the insurance company offer.

Sometimes that is what you have to do.  When the insurance company won’t make a fair offer, you have to take it to them.

If you have been injured in an accident with a semi, truck or other commercial vehicle, you should be aware that you have certain legal rights. Our attorneys are experienced in handling trucking accident cases and can help you with your legal rights.

Under Federal law, all interstate trucking companies must file a form MCS-90 with the interstate commerce commission. This form is created by the insurance company and guarantees that the trucking company has at least $750,000 in liability insurance. Many trucking insurance policies have even more coverage than that.

If you have been injured in an accident involving a semi, truck or other commercial vehicle, please call our offices for a free consultation to discuss your legal rights and options.