Those who suffered property losses in the Northern California wildfires are no doubt looking to insurance coverage to restore the damaged property. Most of us never look at our insurance policies until we have a loss and claim. That means there may be some surprises as to what you have or do not have in terms of coverage. Here are some thoughts:
After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.
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I have a passion for dispute resolution. It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 90’s. He was a master negotiator but at the same time a supreme diplomat. His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they thought they received the Congressional Medal of Honor.
I spent a number of years as a traditional “defense” lawyer in the civil litigation arena. As part of that, I became involved in the early Insurance “bad faith” cases. I tried – as a defense lawyer – the first two first party bad faith cases to go to verdict in California (before Egan was tried in November 1974). There was no bifurcated trial with the financial worth of the insurer not being known by the jury until a “second phase.” That was the first thing the plaintiff’s lawyer wanted the jury to hear before the 1988 legislation allowing cases to be bifurcated to keep financial worth out of the case until a jury decided in phase one that punitives were warranted.
Now as a plaintiff’s (primarily) lawyer I hope I have a keen sense of “worth”. That is, what is the value of the case, and how much is it going to cost to get there? That is a critical assessment from Day One for any plaintiff’s lawyer. Not all cases are “bell ringers” with high 6 or 7 figure potential – real potential, that is.
I hope I carry a bit of Dad’s approach in my practice. I fervently insist on early evaluation, negotiation and even mediation of disputes. There are many reasons why. A primary one is that in my experience an early resolution means a larger net recovery for a client at a time when the money means more and can do more for the client at that point. Indeed, clients often ask me early in our discussions, “Do you think you can settle my case?” They are not enthusiastic about going through a trial, possibly an appeal, and waiting years to – hopefully – get a monetary recovery.
Key to any lawyer representing clients in civil litigation is the skill and insight to look down the line and see if it is worth all the hard work that a case requires. It is imperative that both sides work up the figures so they can focus on where the point of a “best” result lands. Maybe an early discussion about resolution is worth a try to see if the financial risk and emotional turmoil for a client can be avoided by a resolution using the diplomacy my Dad used to get a “just” result.
Guy O. Kornblum has been a civil trial and appellate lawyer for over four decades. He is the author of “Negotiating and Settling Tort Cases: Reaching the Settlement”, published by Thomson West and the American Association for Justice (rev. 2017).
Trial lawyer Guy Kornblum, who specializes in bad faith insurance claims, provides an overview for injured sports players and fans. Whether you are a professional athlete or a recreational player, injuries are common in sports. Does the law offer any recourse?
In many cases, you will not be able to hold anyone else liable for an injury you suffered while participating in amateur or recreational sports activities. Injuries are an accepted risk of playing amateur sports, so bringing a successful personal injury claim is very difficult, if not impossible. But there are a few scenarios that might trigger the legal liability of another participant in the sport or the liability of a third party.
The legal doctrine of “assumption of the risk” bars you from trying to hold fellow participants or property/facility owners liable when you are injured while playing a sport or game, as long as the circumstances that led to your injury were inherent to — or at least reasonably related to — the sport. The idea behind “assumption of the risk” in this context is that, by agreeing to participate in the sport or activity, you’ve also agreed to assume the possibility that you’ll be injured.
So, if you blow out your knee playing Ultimate Frisbee or get a concussion in a pick-up game of tackle football, you probably can’t hold anyone else liable for those injuries.
If your injury was the result of unreasonably aggressive behavior on the part of another participant — you’re playing basketball and the guy you’re guarding punches you in the face because he doesn’t like the way you play defense — assumption of risk wouldn’t bar you from pursuing an intentional tort lawsuit against the person who hit you.
Also, if your injury was caused by (or made worse by) sports equipment or some other product that was defective or didn’t perform the way it was supposed to under the circumstances, you may be able to bring a product liability lawsuit against the manufacturer.
For example, if the head of a golf club detaches mid-swing and strikes someone in the temple causing permanent brain injury, the manufacturer of the golf club may be held liable for damages.
Injuries at stadiums and sports facilities tend to fall into two categories: 1) standard premises liability injuries such as slip and falls or trip and falls, and 2) injuries that occur when a fan at a sports event is hit by a ball or a puck. When a guest is injured, who is on the legal hook? Can the owner be sued? Do fans assume the risk and lose the right to a personal injury lawsuit? Read on to find out.
Simply because you slipped and fell does not mean that the owner was negligent. Further, simply because the floor was slippery does not mean that the owner was negligent. The floor had to have been unreasonably slippery. Then, in order to prove that the stadium owner was negligent, you must prove that the owner knew or should reasonably have known that the floor was unreasonably slippery, and failed to take steps to fix the problem.
Let’s take a not uncommon example of a slippery condition at a sports stadium — a wet floor in a bathroom. Everyone who has ever been to a stadium has probably seen a soaking wet bathroom floor at least once.
Wet bathroom floors can be slippery and hazardous, and fans have fallen in stadium bathrooms. But not all slippery conditions in stadium bathrooms involve negligence.
For example, if someone drops a big cup of water (or even two cups) on the floor, and you slip on the water two minutes later, the stadium owner would probably prevail in a lawsuit. There is no negligence in this situation for two reasons: 1) because one or two cupfuls of water on the floor is probably not an unreasonably slippery condition, and 2) even if it was an unreasonably slippery condition, the stadium owner had no reasonable opportunity to learn about the condition and clean it up in those two minutes.
Now let’s consider an example where a slippery bathroom floor would be a negligent condition. Let’s say that the bathroom floor has two inches of water on it because drunk fans constantly put paper towels in the sinks and leave the water running so that the sinks all overflow onto the floor. Let’s say that this happens game after game.
In this type of situation, the stadium owner has reasonable notice that the bathroom floors are constantly slippery. In this situation, a person who slips on the bathroom floor can make a reasonable argument that the stadium owner knew or should have known that the bathroom floors were always slippery, and that the owner should have done something about it.
Another not uncommon occurrence at a baseball or hockey stadium is a fan getting hit by a ball or puck, and some of these injuries can be severe.
What are the fan’s legal rights? If you turn over your ticket to the sports event, you will see a paragraph or two of legal language in extremely small print. This is the stadium owner’s attempted disclaimer of legal responsibility for any injuries that might occur to fans at the stadium. The disclaimer will usually say something like balls, pucks, and even players occasionally leave the field of play, that the balls or pucks might be traveling at high speeds, and that the fan assumes the risk of injury from any balls, pucks, or players that leave the field of play.
Let’s say that you get hit by a foul ball at a baseball game. Is this disclaimer really valid? While every state’s law is different, these disclaimers are valid, with exceptions.
The stadium owner still has an obligation to act reasonably to minimize the risk of injury to spectators. That is why all baseball stadiums have netting behind home plate to protect against foul balls. The netting is behind home plate because balls that are fouled straight back are going so fast, and the spectators are so close, that a spectator could not reasonably get out of the way. However, although home run balls also leave the field of play, there is no netting in the outfield because the balls are not traveling as fast and because the spectators in the outfield seats have had four or five seconds to track the ball traveling toward them.
If you get hit by a foul ball while sitting between home plate and first base, you might be able to make an argument that the netting was not large enough, depending on exactly where you were sitting. The stadium industry has standards for how far away from home plate the netting should extend. If the stadium that you were injured at did not meet those standards, you may have a legal case against the stadium owner.
Another example where the disclaimer might not hold up is if you were sitting behind home plate and a foul ball went through a hole in the netting. In this situation, you could argue that the stadium owner was negligent in its upkeep of the netting.
Mr. Kornblum also offers an Injured Victims Handbook, which outlines the basic process of seeking damages for injuries if you are a victim of wrongdoing. There are 12 chapters which are in layman’s terms and which will outline issues you will need to understand if you have been injured or there has been a death of a loved one and you are seeking compensation from the wrongdoer.
If you want a copy, email be at firstname.lastname@example.org, or call either of our offices at 415 440-7800 for San Francisco, or 707-544-9006. We can email you a copy or send you a hard copy. I think you will find it very informative. There is nothing else like it out there that I am aware of for injured victims.
Most of you have insurance. You insure your autos, your homes, your health (medical insurance), your income (disability insurance) and your lives. You may also insure your businesses against damage to property used for commercial purposes and loss of income. Your insurance includes protection against lawsuits filed by a third party against you, and you expect your insurance company to defend you in that lawsuit and protect you against a judgment for money damages.
We buy insurance not because we want it but because we need it – fear of the future motivates us to protect ourselves against injury to ourselves, our families and our property. The prudent person buys as much insurance as he or she can afford – sometimes even more. We seek from our insurance company peace of mind and security against the risk of financial injury caused by the unexpected.
Your insurance company is a friend when you agree to purchase the insurance. However, often that same insurance company becomes your enemy when you make a claim. The claims process is often a hostile and difficult one with a burdensome amount of paperwork and frequent requests for more information. Usually with the goal of finding a way to turn down your claim or limit payments. Some insurance companies reward their claims handlers for keeping claim costs down by basing their compensation on how little they pay on legitimate claims.
Insurance companies are powerful financial corporate structures. They have large treasuries. While the purchase of a policy may take place at your home or business or at a local office, things are different when a claim is made. Nearly all of the time you are dealing with someone who is hundreds if not thousands of miles away. A face to face meeting is rare, except when an investigator shows up at your door unexpectedly. Indeed, your insurance company has the power and control over you in your relationship with it.
What can you do when you believe your insurance company acts unfairly? How do you combat “low-balling” or wrongful refusals to pay you what the insurance company promised to pay you for the protection that you purchased?
You can go to your state Department of Insurance. However, these state executive departments are generally ineffective. More than one-half of the states under-fund their Departments of Insurance, so they have inadequate staffs and resources to handle complaints from the public. In some states, the Department of Insurance has been graded as low as an “F” by an independent agency. Not surprisingly, when a claim is denied your insurance company will usually refer you to the state Department of Insurance if you disagree with the claims decision, knowing that you will receive little help.
What your insurance company does not tell you is that there are ways to combat its wrongful denials. For example, in nearly all states, there is an Unfair Claims Practices Act which lists 16 unfair claim practices which insurance companies cannot engage in. You are never told about this when your insurance company denies a claim.
In addition, all insurance companies must abide by a duty of “good faith and fair dealing” in 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.
We can help you evaluate your claim and determine if you need to sue to get what is rightly yours under your insurance policy. You paid for protection; YOUR insurance company should provide it! — Guy O. Kornblum
Mr. Kornblum welcomes your comments at email@example.com.
It takes considerable effort and preparation to make the mediation process work. One complaint I hear over and over is that some lawyers — and perhaps clients — just don’t get it. Based on my experience, some of what it takes to prepare for an effective mediation:
Perhaps the most important trait of a good advocate who also serves as a mediator is listening to what the other side has to say, along with carefully assessing the position counter to the clients. If this is done — and it should be if counsel’s representation in mediation is to meet professional standards — it allows for a full discussion and exchange of information before and during the mediation. The chances of reaching a settlement increase dramatically.
I am not alone. In an article by the Honorable James L. Cott, a Magistrate Judge in the USDC, Southern District of New York, “The Dos and Don’ts of Settlement Conferences,” in the Winter 2016 issue of Litigation, the Journal of the Section of Litigation of the ABA (Vol. 42, No. 2), the author provides a list describing what is required to be ready and effective at mediating:
Most of these points seem obvious because they are. So why would Judge Cott repeat them? My guess is because in his experience many lawyers representing clients in mediation are not doing their jobs correctly and are taking the mediation process too lightly.
From the plaintiff’s perspective, it is a waste of time and money to participate in mediation if the defense is not prepared. To effectively prepare, the plaintiff — well in advance of the mediation date — lays out the client’s case fully and candidly. Key exhibits and expert reports, not just conclusions and arguments without evidence to support them, included.
From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and the appropriate authority obtained. The defense also needs time to evaluate what experts might be involved, and obtain those reports. That has to be done well in advance of the mediation date. It is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process.
Indeed, as I sit here today, we just confirmed a mediation to take place in a bit over two months from now. I started the preparation process today by scheduling a meeting with our firm’s associate who will assist me, the client, and another lawyer who is involved. We will outline what needs to be done, confirm our objectives for preparation, and assign our tasks.
There is another point to consider: One of the important items on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process so as to ensure a meaningful dialogue. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people are involved and the commitment is there. Or I might ask the mediator to make sure this is the case. Frankly, in most cases I do this myself, but I will inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome if I think the mediator has the presence to do this effectively. I have on occasion asked permission to make this call because I feel strongly that I will be more effective because of a prior relationship with opposing counsel.
The first article, “Making Certain the Settlement You Intend is the Settlement You Get,” by Robert Hugh Ellis of Dykema Gossett PLLC in Detroit, stresses thinking through the terms of your settlement and making sure all aspects are clearly covered so the deal you expect is the deal you get. Indeed, a deal may not be a deal. He emphasizes two points:
The second article, “The Seven Deadly Sins of Mediation,” by Joel Levine, an experienced mediator, explains how to avoid self-inflicted wounds in mediations. These include:
Finally, Judge Cott repeats a quote from Abraham Lincoln, which is one of my favorites and which I have in my book on negotiations (see bio):
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, and expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will be business enough.”
Good meditating. Let me hear your views. Send them to firstname.lastname@example.org — Guy O. Kornblum, The Resolution Advocate
Guy O. Kornblum interviewed on KTVU Channel 2 regarding our Bay Bridge Case involving the Pettys.
In November 2015, 34-year-old Kerrie Morgan drove the wrong way on the Bay Bridge in a stolen cab. Under the influence of methamphetamine in a stolen car and an unlicensed driver, Morgan slammed head-on into one vehicle and sideswiped two more. She drove westbound in the eastbound lanes of the Bay Bridge for nearly two miles. As a result, our clients had to be extracted from their vehicle using the Jaws of Life. Angie Petty was critically injured. “She had fractured her skull, fractured both legs, fractured her right arm…She had torn all of the ligaments in her neck. They had to restructure her neck,” Mr. Kornblum told KTVU.
On January 25, 2017, San Francisco’s District Attorney George Gascon announced that Morgan was found guilty on all counts by a jury. Morgan earned three felonies and two misdemeanors in this case:
A date for Morgan’s sentencing has not yet been set.
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?
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.