The Food and Beverage Industry: Understanding the New Wave of Class-Action Lawsuits

Over the last five years, the food and beverage industry has experienced a rise in consumer class-action lawsuits. Previously, a food and beverage company’s risk of consumer litigation arose primarily from personal injury claims, such as if a consumer were to become ill from consuming a product. Now, class actions are often filed based on claims that consumers have been misled by the company’s advertising or product labeling.

The trend began with class action suits challenging products labeled as ‘natural’. The FDA, USDA and FTC have not regulated the term ‘natural,’ claiming it holds no nutritional meaning, though it is a commonly used term within marketing tactics. Other advertising and labeling claims are increasingly being challenged as well, such as complaints being filed with respect to the use of the following phrases: ‘evaporated cane juice’ as a replacement for of sugar, claiming a product is ‘imported from’ or ‘made in’ certain locations, whether or not a product has been‘handmade’, as well as the labeling of trans fats.

Products as diverse as tea, guacamole and almond milk have been subject to litigation. Northern California, once dubbed the Food Court, is no longer alone in the industry’s lawsuit increase climate. Cases are filed in both federal and state courts across the country. Often, the filing of one lawsuit prompts copycat lawsuits in other jurisdictions.

How class action suits differ from single-plaintiff lawsuits?

Unlike single-plaintiff lawsuit, class action suits require litigating on two fronts; on the actual merits of the lawsuit and whether or the plaintiff can be considered a class. Class certification means that the court has allowed one individual (the plaintiff) to bring the case on behalf of a larger group of similarly situated consumers. Devising a strategy to address both the merits and class certification early on is vital to successfully and efficiently defending a company from these lawsuits. Courts have been willing to dismiss claims for a variety of reasons and the plaintiff properly achieving class certification has been one of them.

What Is the Standard for Bringing a False Advertising Lawsuit?

Most jurisdictions facing recent food and beverage class actions use the ‘reasonable consumer’ standard to determine the validity of a claim. According to the FTC, “An interpretation of a representation is not actionable unless it is reasonable, or is shared by a significant and representative segment of the population exposed to the claim.” Plaintiffs rely on state consumer protection laws, such as California’s Unfair Competition Law, the False Advertising Law, the Consumer Legal Remedies Act, Florida’s Deceptive and Unfair Trade Practice Act, and New York’s General Business Law § 349 to make their case.Some courts dismiss cases, on the basis that the reasonable consumer is not likely to be deceived by a defendant’s advertisement or labeling. In one notable case, the court dismissed a lawsuit against a manufacturer that labeled its pasta as ‘all natural.’ The court reasoned that the ‘all natural’ labeling was not misleading because a reasonable consumer is aware that pasta is “…not springing fully formed [from] Ravioli trees and Tortellini bushes.” Another court dismissed a lawsuit against the manufacturer of bourbon labeled as ‘handmade’, reasoning that “the term obviously cannot be used literally to describe bourbon. One can knit a sweater by hand, but one cannot make bourbon by hand. Or at least, one cannot make bourbon by hand at the volume required for a nationally marketed brand...No reasonable consumer could believe otherwise.”Courts have also dismissed cases when the company’s labeling has been authorized by the Food and Drug Administration under the federal Food, Drug and Cosmetic Act and as amended under the Nutrition Labeling and Education Act. This defense is called preemption and can be raised at the motion to dismiss this stage.

What Happens if the Class Action Continues Past the Motion-to- Dismiss Stage?

Despite some favorable motion-to- dismiss rulings in food and beverage class action suits, whether or not the product’s advertising misleads a reasonable consumer is usually a question of fact. The case often proceeds to discovery, which means both parties are provided each other’s evidence. Following discovery, the plaintiff may move to certify the class.Though the plaintiff carries the burden to prove that the case should be treated as a class-action suit, a company should develop a strategy for preventing class certification early in the case. This includes identifying evidence proving that the allegedly false advertising was uniformly made to the class, whether the advertising was important, and whether class-wide damages are actually appropriate.

What Are the Damages?

Some class action complaints request full refunds, claiming that a mislabeled product has provided no value. Courts often reject full-refund damages requests and hold that the proper measure of damages is the difference between the value of the product as represented and the price paid by the class. As one court aptly noted, return of the full retail or wholesale price is not a proper measure of restitution because it fails to take into account the value class members received from the products. In the food and beverage context, for example, consumers receive calories, nutrition, vitamins and minerals from the product. Plaintiffs often work with damages experts who measure the difference between what was represented and the price paid. They attempt to recover that difference multiplied by the total sales of the company for a particular period and jurisdiction.

What About Unknown Class Members?

Many food and beverage products are sold through retailers, and manufacturers usually do not have significant information regarding consumers of their product, therefore identifying the alleged class. For a class to be certified, it must be ascertainable, or clear and well-defined enough for the court to determine whether an individual is a member of the proposed class. The court must decide this in a reliable and feasible manner based on objective criteria. Courts are still determining what qualifies as “reliable” and “objective,” particularly when the products at hand are low-value consumables for which the consumer usually lacks evidence of purchase. For example, the Third Circuit Court of Appeals determined that consumer affidavits are not enough to satisfy the determining requirement in the absence of objective records. The Ninth Circuit Court of Appeals is expected to interpose on the issue soon, as an appeal undertaking this issue is pending before the court.

Contact The Law Office of Alex Tovarian

If you believe that you were a victim of a false advertising, contact Tovarian Law for a free case evaluation.

What Happens if You Let Your Friend Drive Your Car and an Accident Happens?

California law states the car’s insurance follows the car and not the driver. This means that if you lend your car to a friend and is involved in an accident, your auto insurance is primary and will pay for any property damage, regardless if your friend is fully covered by his or her own auto insurance. Primary coverage applies so long as the person driving is not specifically excluded on your policy. If you have liability and collision coverage, then it is your own policy that will be used. Should your coverage not be adequate to cover the damages, then your friend’s policy is used as secondary coverage once your own limits are exhausted. This includes personal injury and medical expenses as well as property damage.

What if Your Friend Caused the Accident?

If your friend is liable for an accident, you must file a claim with your own insurer. You are primarily responsible for paying the deductible for any property damage though you can certainly ask that your friend pay it since he or she caused the accident. Further, your own insurance premiums will likely increase even if it wasn’t you that was driving.

What If Someone Else Was Responsible for the Accident?

Should someone else’s negligence have caused the accident, you merely file a claim with the responsible party’s insurance carrier to pay the property damage. Your friend may file a claim for personal injury under your policy as well.

Permissive vs. Non-Permissive Use

You can give permission to anyone to drive your car so long as that person is licensed. Your insurance policy will cover any permitted driver in most cases. If, however, your friend or relative drives your car without your express or implied permission, then that person’s own insurance will apply and your carrier will become secondary. It may be difficult to demonstrate that that person did not at least have your implied permission to drive unless you can produce testimony from a witness that you expressly denied that person use of your car.If your car was stolen, you are not liable for any damage or injuries to others.

California Meal Breaks

In April 2012, the California Supreme court in the long-awaited ruling in the case of Brinker v. Superior Court clarified when rest and meal breaks may be provided and when employees are deemed to be on break. It confirmed that all employers have to make meal breaks available to employees but listed certain criteria, all of which must apply, or else employers are required to pay additional compensation to its employees for violating these rules. All the following must be in play for an employee to be on a break:

• The employee has been relieved of all work duties;

• The employer has relinquished control over all the employee’s activities;

• The employee has an unpaid and uninterrupted 30-minute break and may leave the workplace if he or she wishes;

• The employer does not do anything to discourage or interfere with the employee during the 30-minute break.

 If any one of these is not present, the employee is considered to be working and is entitled to compensation. The employer may not have a policy or practice whereby the employer offers a bonus or incentive for the employee to forego or skip a break or engages in a coercive activity to that effect.

 Further, the decision only requires that employers make the break period available but do not have to ensure that all employees take one.

Employees Have the Burden of Proving a Meal Break Claim

 If you feel that your meal break requirement has been or is being violated, the burden of proving the violation is on you. This is distinct from an overtime pay exemption situation where the burden of proof is on the employer to demonstrate a valid exemption. Should you feel that your employer is violating your right to a meal break, you should take the following steps to document the violations:

• Note the dates when the violations took place

• Indicate why you did not take a break

• Identify who told you not to take the break and the time and what was said

• Note if anything was promised to you or if you were threatened into foregoing the break

• Identify who witnessed you not taking a break or heard the person tell you not to take it

Before our office will consider taking your meal break claim, you will have to provide the above written documentation.

California’s Meal Break Law

Under California Code of Regulations, Title 8, Section 11040, employees must be allowed to take periodic meal breaks. The law states:

“No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”

When the Break Must be Taken

This means that you can take an unpaid and uninterrupted 30-minute meal break before the end of the fifth hour of work and be relieved of any duties or restrictions on leaving. You must record the time you begin and end each meal break. If you were unable to take your required daily meal break, this should be reported on your time card or record and you should be paid for the time you worked and one hour of premium pay for that day.Further, your meal break cannot be taken at the beginning or end of your work schedule or shift. If your work day, however, is less than 6 hours then the meal period can be waived by the employee so long as there is a provision in a written agreement where a meal break is not provided.

When Your Job Does not Permit a Break

There are only a few situations where your job does not permit a meal break. For instance, security guards at remote locations can waive the meal break if there is a written agreement to that effect since stopping their activity for 30 minutes to take a break is not realistic. Likewise, if you are the only worker at a retail store, you could close the store and take your break, which is also not practical, so that this situation does not qualify. Most jobs where there are others to take over your shift for 30-minutes will not qualify for the “on-duty” meal period.Remember, your employer has to provide you with a 30-minute meal break before the end of 5 hours or he or she is violating the law. If you work a 10-hour day, you get a second break before the end of the second 5-hour period. Should you work 7 1/2 hours with no break, your employer cannot just tell you that your 30-minute break starts now and sends you home.

Extra Pay When You Do Not Get a Break

California Code of Regulations, Title 8, Section 11040 also states:“If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”You are only compensated for one hour of missed meal breaks, though, even if you work more than 10 hours in a day and are entitled to two meal breaks and do not get either one. This extra compensation can increase the amount of overtime you are due along with the one hour of pay to which you are entitled for not taking a break.

Overtime Issues Caused by Meal Premiums

For employees entitled to overtime under either state or federal laws, the meal premium would also increase your regular rate of pay when computing overtime. The Murphy court did overrule the California Division of Labor Standards Enforcement, or Labor Board, in that meal premiums could go back 3 years instead of the one year period used by the Labor Board. For a comprehensive and in-depth analysis of the labor law issues involved in Murphy v. Kenneth Cole, please see the link to my blog.

The Statute of Limitations

The statute of limitations for civil claims limits the time when you are able to bring a claim to court. A recent California Supreme Court decision in Murphy v. Kenneth Cole Productions, Inc. held that payments for meal break violations are “wages” and not penalties so that the 3-year statute of limitations applies for these wage claim cases. Under unfair competition statutes, though, employees may be able to go back 4 years for meal premiums.

Contact Tovarian Law

Do not allow your employer to take advantage of you regarding meal breaks or overtime claims. If you suspect your employer is violating the law regarding proper meal breaks for you or any other employees at your company, contact Tovarian Law for a free case evaluation.

What If You Are Partially at Fault at Your Accident?

Everyone makes mistakes, especially on the road. However, many injured motorists incorrectly believe that if their own negligence contributed to their injuries in any way, they are wholly unable to recover legal compensation. This belief is based on an old rule of law called contributory negligence that has been abolished in all but a handful of states. While shared fault can still affect your personal injury award, it is usually not a total bar to recovery.

California abandoned the idea of contributory negligence in 1975 when the California Supreme Court decided Li v. Yellow Cab Co. of California. Since that time, California has adopted a pure comparative negligence rule in that an injured plaintiff can recover damages so long as the plaintiff’s own fault was not 100 percent. In a scenario where the plaintiff suffers $100,000 in damages but a jury finds that the plaintiff was 70 percent at fault for the injury and the defendant was 30 percent culpable, the plaintiff will recover $30,000. Your damage claim is apportioned by the percentage of comparative negligence attributed to your degree of fault.

In considering whether a plaintiff is at fault, juries look at the same facts and factors as they do for defendants:

1. Traffic violations

2. Speeding

3. Distracted driving

4. Intoxication

5. Poor vehicle maintenance

Defense attorneys are quick to point out any possible basis for a plaintiff’s contribution to the accident to reduce liability for their clients and their insurance carriers.

CONTACT US

If you or your family members have been injured in a car accident, please call Tovarian Law. We will be happy to provide you with a free confidential consultation regarding your potential case.

What is an Independent Defense Medical Exam?

If you have been in a car accident or suffered any other type of personal injury and you have sued the responsible person (defendant), you will likely have to submit to a defense medical exam or DME. Okay, the real name of it is an Independent Medical Exam or IME. It is performed by a doctor paid for by the defense insurance company and is not really independent. California Code of Civil Procedure Sections 2032.210-2032.620 govern the DME.

The Defense Medical Exam is one of the most important parts of a lawsuit. It is important because the doctor examining you is most likely the doctor that the defense will use at trial to say you are not really hurt, that you are not hurt as badly as you claim, or that you should have improved within a few days or weeks. Remember, people (juries in your case) tend to believe doctors. So what the defense medical exam doctor says about you at trial can dramatically affect the outcome of your case.

What you should know about an IME:

1) Always remember that ultimately the defense is paying this doctor to report that you are not as injured as you claim – the doctor is not on your side

2) Do not minimize your injuries (too many people act like a tough guy in these exams and minimize their injuries – this is the time to let the defendant know just how badly you are hurt). Be precise about your injuries.

3) Do not overstate your injuries (remember the person examining you is a doctor and will know when you are exaggerating and will happily point this out in their report or testimony). Be precise about your injuries.

4) Do not involve yourself in a conversation with the doctor that has nothing to do with your injuries. The defense doctors can and will find a way to use this to hurt your credibility at trial.

If you have had a Car Accident or Other Personal Injury case in San Francisco, Sacramento, or San Jose, California, there is a good chance that you will see one of a handful of doctors. This should not be surprising. Once these doctors realize what the defense attorneys want and give it to them, the same doctors will be hired over and over.

These doctors can often make as much money performing these exams and testifying at trial as they can in their normal practice. But this is not always a bad thing. If you have hired an experienced personal injury attorney, he or she will have information on these doctors who testify regularly for the defense that will be helpful to your case at trial.

Another recommendation that I have is to ensure your attorney sends a letter to the doctor before your examination confirming that the doctor has all of your applicable medical records and any other information needed for the exam. The reason for this is that the exam should only be about your current condition and not your medical history or what happened the day of the injury (that is what a deposition is for, and the defense has no right to make you go through that again – especially if they are doing this to find inconsistencies to use against you).

Finally, encourage your San Francisco personal injury lawyer to send someone from her office to attend the DME with you. This is important because what you recall and stated at the Defense Medical Exam, and what the doctor says you said, are often at odds. At trial, it is just your word (someone trying to get money through a lawsuit) against a doctor (a respected member of the community). Having someone there with you and the doctor will help ensure that the story and events told by everyone at trial will be what really happened.

I also want to make clear that most doctors that do defense medical exams are respectable and honest. You can expect them to examine you and give a fair assessment. There are some (like in all professions), however, that will not. They will almost always say a plaintiff is not badly hurt and should have recovered in a few weeks. It is because of those few doctors that I provide the advice given here.

Contact Us

We are dedicated to helping those injured by the carelessness and negligence of others. We will aggressively represent auto accident victims and if you or a loved one has been injured in San Francisco, Sacramento or San Jose, please call us for a free consultation.

Long-term Effects of Head Injuries, Concussions, Traumatic Brain Injury (TBI)

Most of us sympathize with people who suffer a bump on the head. Sports, car accidents, roughhousing by children, or simply hitting your head while working around the house are sometimes the causes of minor head injuries. However, some head trauma can be much more serious and may be life threatening or result in debilitating injuries. Whenever anyone takes a blow to the head, they risk a traumatic brain injury. This type of injury can alter your life and the lives of your loved ones forever.

A traumatic brain injury, or TBI, is an injury to the brain which causes some kind of damage. Sometimes a head injury may produce symptoms that disappear over a matter of days or weeks, but a traumatic brain injury can result in a permanent disability or mental incapacitation. Individuals who are victims of a TBI caused by the negligence or recklessness of another party may suffer economically, emotionally and physically.

If you or a loved one has suffered a traumatic brain injury in an accident, medical malpractice or by a defective drug or product, hire an experienced personal injury lawyer for your case who will secure for you the compensation to which you are entitled.

The Effects of a Traumatic Brain Injury

Brain injuries, whether mild, moderate or severe, can be catastrophic and have short and long-term symptoms including confusion, dizziness, memory loss, loss of consciousness or seizures. Post-concussion syndrome is increasingly recognized as a serious health concern in the U.S.

The long-term effects following severe Traumatic Brain Injury or even mild concussions, however, are not as well known. And the friends and loved ones of the injured tend to overlook the past connections as well. Often head injury symptoms are forgotten or disregarded and somehow not associated with a head injury, which may have happened months or even years ago.

Concussions are serious injuries. Many professional and amateur athletes have suffered at least one concussion during their athletic careers with those involved in contact sports often suffering multiple concussions. The good news is that doctors and athletic trainers have an arsenal of tests athletes must pass before they can return to the field of play, including a new computerized screening that looks at brain functioning.

Recently, research has focused on repeated injuries to the brain where a more serious second head injury happens before a first injury has fully recovered (a.k.a., Second Impact Syndrome). Roughly 50% of those second impact cases prove fatal. Even when a brain has apparently fully recovered, the risk of permanent damage from a second concussion greatly increases.

Concussions can be cumulative over a lifetime. Younger people suffering multiple concussions may suffer from poor school performance, the inability to get the best jobs or to get into the college of their choice, thus impacting their financial future. In these cases, you should hire a personal injury attorney who has successfully handled these types of cases.

Typical Symptoms of a Traumatic Brain Injury

Traumatic brain injury may be mild or severe. Symptoms of traumatic brain injuries may include:

1. Cognitive difficulties including trouble concentrating, sequencing or speaking

2. Memory loss

3. Sensory perception confusion

4. Difficulties with language comprehension

5. Loss of motor skills such as writing or walking

6. Difficulty seeing or hearing

7. Loss of smell or taste

8. Paralysis

9. Social or emotional disorders

The emotional impact alone from any of these disabilities can be devastating to anyone. Even mild symptoms of traumatic brain injury may cause permanent debilitation or job loss in certain circumstances.

Brain injuries are not always synonymous with head injuries. A traumatic brain injury may be caused by:

• Open or closed head injury

• Spinal cord injury

• Chemical or toxic material exposure

• Hypoxia (suffocation)

• Tumors or cysts

• Stroke or seizure

In many of these cases, a brain injury was caused by the negligence of another party including healthcare professionals or by a defective drug or medical device. In other cases, serious injuries result from the lack of workplace safety. In these situations, finding an experienced personal injury attorney is essential to getting you the compensation you deserve.

Hire a personal injury lawyer from Tovarian Law. Our attorneys will obtain for their brain injured clients and their families the compensation they need for medical care, to ensure that their daily needs are met, for lost wages, pain and suffering and that hope for a secure future is realized.

California Laws Related to Rear End Auto Accident Claims

California laws related to rear end auto accident claims are important because the Golden State is home to some of the highest traffic volumes on freeways and surface streets in the country.  This leads to countless rear-enders every year from persons traveling too fast or following too closely.  Many of the incidents are fairly low impact when they occur in slow moving traffic, but at even moderate rates of speed they can cause significant bodily harm.

What are the basic California Vehicle Codes that apply to rear-end collisions?

There are two, principal statutes that come into play when analyzing the legal responsibility of parties in a collision from behind.  These incidents are nearly always deemed the fault of the party who strikes from the rearmost position. These provisions are as follows:

1. California’s Basic Speed Law (CVC 22350): While speed limits vary depending upon many factors including the type of roadway, if in a residential or commercial zone, the proximity of schools or school buses and any number of other issues, there is one “basic speed law” in California, which is as follows: “No person should travel at a speed that is greater than is reasonable or prudent” given all roadway conditions including traffic volume, weather conditions, visibility, the wetness or dryness of the pavement, the width of the road, and all other circumstances at any given time and should never drive so fast that it “endangers the safety of persons or property.” (emphasis added)

2. Following Too Closely: (CVC 21703): This California statute is vary depending upon many factors including the type of roadway, if in a residential or commercial zone, the proximity of schools or school buses and any number of other issues, there is one “basic speed law” in California, which is as follows: “No person should travel at a speed that is greater than is reasonable or prudent” given all roadway conditions including traffic volume, weather conditions, visibility, the wetness ordryness of the pavement, the width of the road, and all other circumstances at any given time and should never drive so fast that it “endangers the safety of persons or property.” (emphasis added) similar and states that no person should operate a motor vehicle closer to the person in front of them than is judicious given all factors including the speed of all surrounding cars and the conditions of traffic including congestion.

Simply stated, you can be charged for speeding even if you were traveling under the posted speed limit if the traffic conditions are such that a slower speed is mandated for your safety and the safety of others on the roadway. Also, use commonsense when following another vehicle since the faster you are going, the more distance you need to come to a complete stop.

The 3-second rule dictates basic driver safety and the physics of following another vehicle

Most driving safety education materials and instructors will tell you that you should use a three-second rule to determine a safe following distance from the automobile ahead of you.  What does this mean?  Pick a fixed object such as a bridge, road sign or building coming up alongside the road.  When the car ahead of you passes that fixed point, count off three seconds and make sure your car does not pass that same fixed point of reference before the end of that three second period.  This rule assumes that the road conditions are good and the pavement is dry.  In rainy weather, even more room should be allowed.  You should never tailgate another person to get them to “move over” nor should you follow the car in front of yours more closely due to persons behind you tailgating your vehicle.

Common injuries and symptoms that occur from getting hit from behind

Basic laws of physics dictate that bodies at rest tend to stay at rest and bodies in motion remain in motion.  The unfortunate way this plays out in a crash from a rear-end collision is that your car comes to rest but your body gets propelled forward and then back. The most common injury that results is damage to your head and neck.

”Whiplash” is the common term for derangement of the cervical spine and the discs in between caused by immediate trauma. These injuries are also referred to as “soft tissue” since there are no broken bones, though there is certainly stretching and tearing of ligaments and muscles in your neck and back.

The brain is also a floating organ in your head that can be slammed from one portion of your skull to the other as a result of sudden jerks forward and then back.  On the scale of seriousness, this can mean minor discomfort or stiffness for days or weeks following the incident to major complications such as a cervical or thoracic disc protrusion or herniation and/or a major concussive disorder.

Symptoms from soft tissue or whiplash injuries range from head pain, neck pain, and numbness to shooting pains down your extremities or arms or legs. Most minor neck and back injuries can usually be treated with proper and sustained physical therapy over several weeks.  Severe spinal disc issues, however, may require surgeries such as a microdiscectomy or fusion of the vertebrae above and below the herniation. Long-term or permanent disability from a spinal injury is a possibility that can significantly affect your lifestyle.

Head trauma from rear-end crashes or from any other accident should always be taken seriously and symptoms such as headaches, memory loss,  and loss of feeling should always be addressed with proper consultation with a neurological specialist and diagnosis from CT or MRI radiographic studies.

Seek medical attention immediately

Common whiplash injuries are often not verified by x-rays though symptoms of pain are very real if you are the victim. If your accident did not result in significant property damage to your vehicle, the responsible party’s insurer will seize on this to allege that you were not seriously injured, if at all.

One way to confirm that your injuries are real and were caused by the accident is to promptly seek medical attention following an accident. In many cases, your symptoms may not manifest for several days and you may only notice headaches, sleeplessness, nausea, irritability or soreness. Once you note these symptoms, immediately seek medical attention as they often worsen over time. Also, by delaying treatment, you enable the responsible party’s insurer to doubt your credibility regarding your injury.

Contact us for a free confidential consultation

If you have suffered personal injuries in an accident, it's important to consult with a skilled personal injury law firm right away. Please contact Tovarian Law for an immediate complimentary consultation and analysis of your case.

First Steps to Follow If You Are injured in a Car Accident

Being prepared for a car accident is essential if you are injured and want to maximize your opportunity for a satisfactory settlement of your claim. Having all your insurance and identifying information readily available is important, but there are some other vital things you can do to maximize your opportunity to obtain full compensation for your injury.

Check on All Passengers and Drivers

Once the accident is over, check to see that your passengers, if any, are hurt. If you have a cell phone, immediately call 911 if you or anyone else has been injured, may be injured or is trapped. If you are bleeding or feel the effects of any injury, do not leave your car unless there is a risk of fire or of further collisions.

Do Not Leave the Scene

It is unlawful to leave the scene of any accident without exchanging information. This includes license, license plate and insurance information. If someone was injured, stay until the police arrive. You face serious criminal penalties, including possible felony charges, if you do leave without talking to police.

Do Not Refuse Medical Attention

Often, the effects of an accident injury may not appear for several hours or days. Your body is in shock and your injuries may not become evident until your body starts to recover. If you feel you may have suffered a neck or back injury or feel dazed, do not hesitate to ask for medical attention.

Insurance companies are skeptical enough about most car accident injuries and if you refuse medical attention at the scene or do not go to a physician immediately, they will seize on this fact to allege that you are exaggerating your injuries or are only submitting your claim for financial gain. Their skepticism increases if your first medical visit is a week or more following the accident or only after you first consulted with an attorney.

Do Not Apologize or Discuss the Accident

If you are able to exchange your insurance and license information with the other party, do not discuss how the accident occurred and certainly do not apologize or admit to anything, even if you feel the accident may have been your fault. In the immediate aftermath of an accident, it is often unclear how the accident happened. Other parties or factors may also be involved that are not readily apparent at this time.

If you are asked about your injuries, just state that you will wait for medical attention.

Take Photos and Find Witnesses

Most cell phones have cameras so if you are capable of doing so, take photographs of the accident site, the position of the cars and the damage to your car and to any other cars involved in the accident. Do not move your car from the scene until police arrive. If the other car is moved, point that out to police.

If there are witnesses to the accident, politely ask for their names and phone numbers and addresses. Sometimes, witnesses will approach you to say they saw the accident or that someone standing nearby may have seen what happened.

When asked about the accident by police, give your best estimates of your observations, times and speeds involved but do not guess. If you are not sure, tell the officer.

Call Your Insurance Company

Promptly report the accident and what injuries you suffered to your own insurance company. Be truthful about what happened in the accident and that you either received medical attention or will be seeing your physician. Your agent should explain to you what your policy will cover for this accident.

Get Prompt Medical Attention

We cannot emphasize enough the importance of getting immediate medical care after an accident. It protects you in case your injury was more serious or extensive than first believed and it eliminates an issue for the insurance company to assert that you are only now claiming an injury once you realized the potential financial gain.

Keep a Medical Diary

In some cases, you may be getting medical attention from more than one doctor who may prescribe different medications or diagnostic tests. Keeping track of which doctors you saw, the dates of your visits, procedures, various medications, and the pain you are experiencing each day can be an invaluable record. Also, describe what activities you are no longer able to perform and if you were forced to cancel vacations, sporting events or activities or other engagements because of pain or an inability to participate.

If you are an independent contractor, keep a separate detailed list, with names and addresses and dates, of any jobs you had to cancel or turn away and the compensation you would have earned.

If your case goes to litigation, your diary is subject to being produced to the other party’s attorney so the contents should be limited to your medical history only.

Do Not Talk to the Other Party’s Insurance Company

You will probably get a phone call or even a visit by a representative of the other party’s insurance company. Politely refuse to discuss the accident or to give any statement. If you have retained an attorney, give them the name and address of your lawyer. If you have not, ask them to speak to your insurance agent after you get their name and case number. You should call your agent if you are contacted and give them this information.

Also, be cautious of any settlement offer made shortly after your accident. At this point, you do not know the full extent of your injuries or how much medical care you may need or if you will be missing time from work or school. Many injuries, including head injuries, may not manifest any symptoms, physical or mental, for several weeks. A nagging pain in your knee may be a torn ligament or a headache may be symptomatic of a more serious head injury.

Retain Tovarian Law

If you or a loved one was injured in an automobile accident, call Tovarian Law. We will promptly investigate your accident and gather all relevant and supporting documents including police reports, photographs, medical records, bills, property damage estimates, employment and school records and medical reports. If there are insurance coverage issues, we will handle them as well. Our experience and resources are essential to getting you the compensation that your car accident injury case deserves.

Types of Personal Injury Cases

Personal injury law deals with injuries caused by the negligence of another person or by the negligent design or manufacture of a product. Personal injury can be a complex area where injuries can be catastrophic and life-changing.

What are the Different Types of Personal injury Cases?

There are numerous types of accident claims. Though many involve principles of negligence and distinct standards of care, different issues do apply. A list of the more common types of injury claims include the following:

• Auto accidents

• Medical negligence or malpractice

• Product liability or defect

• Toxic Tort

• Drug and defective medical devices

• Dog or animal bites or attacks

• Premises liability or Slip and Fall

• Railroad accidents

• Boating accidents

• Amusement park tragedies

• Bus accidents

• Trucking collisions

All of these types of personal injury claims involve different elements, issues, parties, and deadlines for filing. Further, each element of a claim has to be proved by your accident attorney by the civil standard of proof by a preponderance of the evidence.

To have a claim, you must prove that someone caused your accident by his or her negligent conduct, which breached a duty of care to you. For example, in a car accident case, your attorney has to demonstrate that another motorist violated a traffic law or failed to exercise reasonable caution or care that led to your injury.

Different Issues and Standards May Apply

Medical negligence claims diverge a bit from the usual negligence cases. In these cases, your attorney must show that your health care provider failed to adhere to a minimum standard of care for similar physicians practicing in that medical community. Many states, including California, require that a medical expert in the subject physician's field of practice first certify that your case has merit before the case can go forward in court.

In premises liability cases, there are issues of notice that must be demonstrated. If you were attacked by a particular animal, California has a strict liability law whereby you merely have to show that a particular animal attacked you.

These cases can also have different statutes of limitations and reporting requirements that must be met or you may lose your right to bring a claim. For instance, if your injury was caused by a city bus or in a municipal building, you have a short time to contact the proper government entity with certain information.

For product liability cases, your attorney must prove that the design or manufacture of the product caused an injury, that the injury was foreseeable to the designer or manufacturer, and that the victim used the product in the manner it was intended to be used.

In wrongful death actions, the personal injury attorney represents the family or estate of the deceased. Any of the various types of personal injury claims can result in a death claim although the damages can be different depending on the survivors who are bringing the claim.

What Can a Personal Injury Lawyer Do?

Personal injury attorneys provide accident victims with legal representation in dealing with insurance adjusters and defense lawyers. They will investigate your accident claim, interview witnesses, obtain documents supporting liability and damages, handle insurance coverage and other issues, and negotiate a settlement of your claims.

If your claim cannot be settled, personal injury lawyers will file your case in court and proceed with the litigation process, which may take months or years in some cases. Injury lawyers are paid on a contingency basis or a percentage of the settlement or money verdict, usually 33% to 40%. If the case does not result in a money settlement or verdict, the attorney receives no compensation.

If you have suffered personal injuries in an accident, it's important to consult with a skilled personal injury law firm right away. Please contact Tovarian Law for an immediate complimentary consultation and analysis of your case.