Congratulations to KCEH lawyers Kaitlyn G. Johnson and Nicholas J. Peterson, both recognized as Rising Stars by Super Lawyers in 2016. Super Lawyers, the Thomson Reuters lawyer rating service, recognizes outstanding attorneys who have attained a high degree of peer recognition and professional achievement. Its annual selections are made using a patented multiphase process that includes nominations and an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
I often state that it is our recommendation that anyone owning an auto have primary liability (protection if you negligently hurt others) policy limits of $300,000 per person and $500,000 per accident. In addition, and an excess policy above that which provides at least $1 million in additional liability coverage and also if you are injured by an uninsured or underinsured motorist protection.
As to the latter, if you are injured by the negligence of a third person with no insurance or insufficient coverage to compensate you or others in the car, then your policy kicks in and provides additional coverage. For example, if you have the total of $1.5 million I have recommended, and you are injured by a negligent driver, you have that additional sum which is available to pay for your injuries. If the negligent driver has $100,000 in coverage you have $1.4 million. Your UM/UIM protection pays if a) the other driver is negligent (i.e. you have added to his or her liability protection on your policy), and b) causes injury, (i.e. medical expenses, pain and suffering).
I also stress that in order to qualify for this coverage you must purchase liability insurance in the same amounts as the UM/UIM insurance that you want. Make sure you cover this with your agent when discussing your auto policy.
Let’s discuss how the matter proceeds if the UM/UIM claim is denied or challenged. In the case of UM/UIM claims, California law mandates that these claims be arbitrated, and that the decision of the arbitrator is final and cannot be appealed except in rare cases. See Insurance Code section 11580.02.
If you have gotten this far without a lawyer, I highly recommend your engage one to represent you. What will take place now needs an experienced lawyer to guide you through the process.
Arbitration is a formal proceeding in which the parties submit their dispute to a neutral (lawyer or retired judge usually), who has authority to make a decision, based on the evidence presented. The decision of the arbitrator is binding on the parties.
One thing that might happen before an arbitration is that the parties agree to mediate the UM/UIM claim. A mediation is a meeting of the parties supervised by a “neutral”, usually a retired judge or experienced lawyer, who oversees the negotiation of the claim. By law, what takes place in preparation for, during and after a mediation is confidential. Nothing that takes place during this process can be used by any party against the other, so the parties can candidly discuss their views of the case and settlement. It is a far less expensive and risky way of resolving any dispute, including UM/UIM claims.
Arbitration involves the presentation of the case to an arbitrator much like a trial. There is no jury and the arbitrator performs the same function as a judge, and also the jury as a finder of fact. An arbitration is conducted in a private office, not in a courthouse. While it is informal in the sense that all the formalities of a court trial are not followed, it is a formal proceeding in that it follows the usually format of a trial. The presentation by both sides follows the normal court trial process: briefs are filed, exhibits presented, opening statements are made, witnesses are called (lay and experts such as medical witnesses), and when all parties have rested (i.e. finished their evidentiary presentation), the lawyers argue the case and possibly file post trial briefs.
The arbitrator then decides the case usually taking some time to review the evidence and the briefs. The decision of the arbitrator is usually written and is called an “award.” Once it is served on the parties, it can be converted to a court judgment, which then is enforceable against the defendant insurance company if the award is not promptly paid. If the award is for money in favor if the insured (it can be a zero which means the insurance company owes nothing), it should be paid promptly. Since tje arbitrator’s decision is final, there is no appeal, so to this extent it is an expedited process. If the insurance company does not promptly pay the award, it may be in “bad faith” which means the insured has a second suit for this delay or failure to pay as a separate claim.
In addition to representing our clients, Mr. Kornblum also serves as an expert witness in insurance claims and legal malpractice claims, and as a mediator. For more information contact our San Francisco office at 415-440-7800.
This is the third article from Guy O. Kornblum on Uninsured/Underinsured Motorist Coverage (UM/UIM). He has discussed what it is, how it works and why you should have as much coverage as you can. As a reminder, it is our recommendation for primary policy limits of $300,000 per person and $500,000 per accident, and an excess policy above that which provides at least $1 million in additional coverage for UM/UIM. I also stressed that in order to qualify for this coverage you must purchase liability insurance (i.e. which protects you from suits by others resulting from your negligence) in the same amounts as the UM/UIM insurance that you want. Make sure you cover this with your agent when discussing your auto policy.
Now let’s discuss how the insurance company must handle a UM/UIM claim once it is presented. First of all, there is an important point to recognize: UM/UIM coverage involves a claim made by an insured to its own insurance company. Thus it is that relationship, based on the insurance policy – a contract – that is at the heart of the claim. This results in a conflict between the insurer and the insured, as the insurer “steps into the shoes” of the negligent driver. If the insurer is contesting a claim it is going to argue a) that its own insured was totally or partially at fault for that insured’s injuries.
Nonetheless, the insurer must still handle the claim in “good faith” and not act unreasonably and arbitrarily. That is, as a first party claim (i.e. the insured is making a claim to its own insurance company), the insurance company has a legal obligation (i.e. duty) to comply with the covenant of good faith and fair dealing, which is implied (even though not expressly stated) in every insurance policy in California. This means that the insurer must comply with certain obligations, including not acting unreasonably in handling, evaluating the making a decision about the claim – i.e. whether to pay or not.
As part of this “good faith” obligation, the insurance company must also comply with California’s Unfair Claims Practices Statute (Insurance Code §790.03(h)) and the accompanying regulations (10 California Code of Regulations 2695.1 et seq.) which regulate the conduct of insurers with respect to claims handling . For example, the insurer must “attempt to effectuate a prompt fair and equitable settlement after liability becomes reasonably clear.” (Cal. Ins. Code §790.03(h)(5).) It also must “diligently pursue a thorough, fair and objective investigation and shall not persist in seeking information not reasonably required for or material to the resolution of a claim dispute.” (10 Cal. Code Reg. 2695.7(d); emphasis added.). The insurance company has no choice. It is required to follow the “good faith” claims handling rules regarding their investigation, administration, and decisions regarding your claim.
If your insurance company violates these duties to you, you can sue and obtain money damages for what is owed you under your policy plus damages for your worry and anxiety and in some instances attorney fees. And, in the cases of malicious and fraudulent claims handling, your insurance company may be liable to you for punitive damages based on a civil fine which you receive to punish the company for its wrongful conduct. This “good faith” claims structure applies in cases of UM/UIM claims even though the insurance company’s responsibility is based on the question of the negligence of the third party driver who was not its insured – you are!
These “good faith” rules prohibit “low balling” (offering below value numbers in an effort to force you to accept this offer because you need the money), or unfair and unreasonable denials. When the insurance company does not live up to these rules, you have the right to seek a recovery against your insurer for failure to provide you – as the insured and purchaser of UM/UIM coverage – what the insurance company promised to pay you for the protection that you purchased?
U.S. News & World Report and Best Lawyers recognized Kornblum, Cochran, Erickson, & Harbison LLP among its “Best Law Firms” rankings for 2017.
Firms included in the 2017 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.
“U.S. News is the global authority in rankings,” says Tim Smart, executive editor of U.S. News & World Report. “Evaluating law firms is a natural extension of what we do best.”
The 2017 rankings are based on the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the U.S. Over 10,000 attorneys provided more than 800,000 law firm assessments, and over 10,000 clients provided more than 90,000 evaluations.
“For seven years now, we have added law firm rankings to our rankings of individual lawyers,” says Steven Naifeh, CEO and co-founder of Best Lawyers. “It has been a daunting task. This year we reviewed 13,803 law firms across the United States and across 122 practice areas, for a total of 2,005 firms receiving a national law firm ranking. Each year, we have expanded our reach while also trying to simplify the process, as much as possible, for the law firms that provide us with the information that we use to create the rankings. We are proud that the legal profession has come to view our law firm rankings each year with such deep and widespread respect.”
Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for its abilities, its professionalism and its integrity.
Awards were given in 74 national practice areas and 122 metropolitan practice areas. One “Law Firm of the Year” is named in each of the 74 nationally ranked practice areas.
The 2017 “Best Law Firms” list will be featured in two publications. The national First Tier rankings will be featured in the Third Edition of the “Best Law Firms” Legal Issue, which will be distributed in January to more than 35,000 C-level executives. National and metropolitan First Tier rankings will be featured in the “Best Law Firms” General Counsel Publication, which will be distributed in December to more than 30,000 in-house counsel, and in digital format to more than 60,000 private practice lawyers worldwide.
The 2017 “Best Law Firms” rankings can be seen in their entirety by visiting bestlawfirms.usnews.com.
The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking, a law firm must have at least one lawyer listed in the 22nd Edition of The Best Lawyers in America© list for that particular location and specialty.
U.S. News & World Report is a digital news and information company that empowers people to make better, more informed decisions about important issues affecting their lives. Focusing on Education, Health, Personal Finance, Travel, Cars and News & Opinion, USNews.com provides consumer advice, rankings, news and analysis to serve people making complex decisions through- out all stages of life. More than 37 million people visit USNews.com each month for research and guidance. Founded in 1933, U.S. News is headquartered in Washington, D.C.
Best Lawyers is the oldest and most respected attorney ranking service in the world. For more than 30 years, Best Lawyers has assisted those in need of legal services to identify the attorneys best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers lists are published in leading local, regional and national publications across the globe. The Best Lawyers in America list recognizes the very best lawyers in each practice area and metropolitan region in the country.