Blog

Wednesday, February 26, 2020 - 6:46am
When there are more claimants under a defendant’s auto liability policy coverage than the amount of the defendant’s coverage limits, the “not enough to go around” problem arises.  Let’s take a typical scenario in an auto collision personal injury matter in which there are three claimants (injured people), but the responsible defendant has an auto liability insurance coverage of $25,000/person, $50,000/occurrence.  With three claimants, who gets what amount?  In this example, each claimant can assert a damages claim of up to $25,000 under the defendant’s policy, but since there are more than two claimants, the $50,000 in coverage would have to be apportioned between the three.  If one person’s claim is obviously worth more than $25,000, and the other two combined are obviously less than $25,000, the total of $50,000 in coverage could be offered to resolve all three claims.
 
But what if there is a vigorous dispute about the value of the individual claims?  If it cannot be informally apportioned by mutual agreement amongst the claimants, the impasse could wind up with all three having to file lawsuits against the defendant, and the entire matter ending up in what is known as an “interpleader,” where the defendant’s insurance carrier acknowledges that it owes the combined $50,000 (in our example), but can’t take sides on who gets what because of the dispute on the value of the individual claims.  The insurance carrier “interpleads” the funds to the clerk of the court, and the judge determines apportionment via an evidentiary hearing.  In such a situation, all three claimants could end up incurring significant costs in presenting evidence of the extent of their damages (such as expert medical testimony) to the court, all of which would decrease their ultimate recovery from a limited pot.
 
The sensible route in such cases is for everyone to get very pragmatic about the value of their claims (and very practical about how much it will cost to present such claims in proof to the court), and work out an apportionment everyone can live with.  Janssen Malloy LLP has such a matter currently, in which our client has a claim valued in excess of the $25,000/person limit, but there are two other claimants (the cases arises out of a three car collision).  The likely outcome is that the defendant’s insurance carrier will ultimately pay our client the $25,000 limit, but the other two claimants will need to digest that their claims combined are not worth more than the remaining $25,000 in coverage.  Once the spectra of an interpleader proceeding becomes clear to the other claimants, they will need to assess how much they are willing to pay in costs to have the person in the black robe tell them the value of the apportionment.  Once that is understood, most people do what is in their own best interest, and come to terms with an agreed apportionment allocation.
 
People facing multiple claimant scenarios such as described above need experienced trial counsel to steer them through the obstacles involved with limited coverages and too many claimants.  The attorneys at Janssen Malloy LLP have the background to negotiate the right result for our clients.
Thursday, January 23, 2020 - 6:42am
According to the California Department of Consumer Affairs, a new fraud scheme aimed at licensees of the state, including the Medical and Osteopathic Boards of California, is making the rounds. Callers pretend to be Board investigators, threaten arrest or suspension of a medical license, and then demand money to resolve the matter.  Don’t fall for this! And, for those of you with connections to retired or aging licensees, please make sure they’re aware that this is a scam. No investigator will demand money to resolve a complaint to the Board.  Read about the warning here.
 
Wednesday, January 15, 2020 - 4:18pm
Janssen Malloy LLP is pleased to announce the elevation of Jeff Slack to partner. With an interest in land use and business law, Jeff took over the firm’s dynamic cannabis regulatory practice, steering a multitude of clients through the permitting and licensing process. He also represents clients in real estate and transactional matters, and he advises on all aspects of business—from development through dissolution.  Born and raised in Humboldt County, Jeff returned after receiving his undergraduate degree in economics and his J.D. from the University of Idaho.  Jeff also completed internships at the U.S. Small Business Administration’s Office of Litigation in Seattle, Washington and at the Superior Court of California, County of Humboldt, in Eureka. We’re proud of Jeff’s work and thrilled with his elevation to partner.
Wednesday, January 8, 2020 - 4:45pm
Most people don’t think of uninsured ("UM")/underinsured ("UIM") coverages when they hear the word “stacking;” but California’s Insurance Code prohibits “stacking” of UM/UIM coverages.  UM/UIM coverages become important when a person is injured by someone operating a motor vehicle who is uninsured or underinsured.  Suppose our client is hit by an uninsured driver (often the case with drunk driver defendants); in that circumstance, we’d look to our own client’s auto liability policy, which (hopefully) has uninsured motorist coverage.  That coverage would provide compensation for our client’s damages, up to the limit of that coverage (i.e., what coverage their premium payment to their insurance carrier provided).  But let’s suppose the responsible defendant driver has an inadequate amount of insurance coverage for the damages sustained by our client (i.e., the defendant is “underinsured”).  We’d then look to our client’s underinsured motorist coverage.  Under California’s Insurance Code, our client would only be able to assert a UIM claim if their own coverage was greater in amount that that of the defendant driver’s coverage.  For example, let’s assume the defendant in our scenario had only the minimum mandatory coverage required to comply with California’s auto liability laws ($15,000/per person coverage, $30,000/per occurrence).  Our client would then only have UIM coverage to repair to if their UIM coverage exceeded the coverage of the defendant’s policy (> than $15,000).  This is because of California’s “anti-stacking” provision in its Insurance Code (California Insurance Code section 11580, et seq.).  So, our client would need to have coverage in excess of the defendant’s $15,000 amount in order to pursue compensation under their own UIM coverage.
 
Other states, like Oregon, allow for “stacking” of the UIM coverage.  A current Janssen Malloy LLP case illustrates the point.  Our clients were injured by an inadequately-insured motorist in Oregon, and our clients had an Oregon UIM policy.  Under Oregon Revised Statutes section 742.502(5)-(6), our clients are able to “stack” their own UIM coverage limit on top of the coverage limit of the defendant, thereby increasing the amount of compensation they can assert for their injuries.  In California, they would be subject to the anti-stacking provisions of the California Insurance Code, and also only able to be compensated up to the limit of their own UIM policy limit, less the amount recovered from the defendant’s insurance carrier.  California’s “anti-stacking” provisions in its Insurance Code are plainly unfair to California consumers, who reasonably would assume that their UIM coverage (for which they pay a premium to their own insurance carrier) would apply as the policy limit number suggests, rather than possibly have no UIM coverage at all if their own coverage did not exceed that of the defendant.  The insurance industry has successfully lobbied for years to retain the current rules, which provide them profitable insurance premiums for providing no UIM coverage in many instances.
 
The above discussion shows that injured motorists need to be represented and advised by experience trial counsel who can steer them through the obstacles involved with UM/UIM claims.  The attorneys at Janssen Malloy LLP have the background and knowledge to properly protect clients who find themselves in such circumstances.
Thursday, December 19, 2019 - 3:11pm
When a person is injured through the negligence of an employee of the United States government, there are special procedural hoops to jump through to hold the government accountable and obtain just compensation.  Claims against the United States government must be made pursuant to the Federal Tort Claims Act (“FTCA”), codified at  28 United States Code section 1346, et seq.  A claimant must first “exhaust their administrative remedy” under the FTCA before they can proceed to file a lawsuit against the Uniteds States in federal court (the federal courts have jurisdiction over claims against the United States).  Filing a claim under the FTCA is a therefore a condition precedent to being able to file suit in federal court.  Specific deadlines apply procedurally for filing such a claim, the most important of which is that one has to file the claim under the FTCA within two years from the accrual of the claim.  If the government denies the claim (the most likely outcome), the claimant then has 180 days (6 months), pursuant to 28 United States Code section 2401(b), to file suit in federal district court (the trial court level of the federal system).  If the government just sits on the claim without taking action, the claimant can deem the claim “effectively” denied by inaction after 180 days have passed, and can choose to initiate suit in federal district court.
 
These procedural deadlines are strictly enforced, so an injured person in this situation needs trial counsel experienced in federal court practice and procedure to protect their rights to a just recovery.  A current Janssen Malloy LLP case serves to illustrate the procedural requirements to protect our clients.  Three Humboldt State University students were injured when a United States Postal Service (“USPS”) truck unsafely pulled out in front of them on Highway 101 locally, causing a significant collision.  One of the passengers suffered a skull fracture and a degloving injury to his hand, among other injuries.  Because the USPS (a federal government entity) is the defendant, a claim under the FTCA must be timely filed before the lawsuit in federal court can be initiated. The FTCA does not allow for a jury trial in federal court; a court trial with the federal district judge is the procedural remedy for the plaintiffs (the judge serves as judge and jury in the sense of fact finding and eventual ruling on liability and damages).
 
The Federal Rules of Civil Procedure and Federal Rules of Evidence apply in a federal trial under the FTCA, which differ in important respects from state court procedural and evidentiary rules.  It is therefore important for an injured party to be represented by trial counsel familiar and experienced in litigating FTCA claims in the federal court arena.  Janssen Malloy LLP’s attorneys have the background and knowledge to successfully handle cases involving the federal government as a defendant, and stand ready to assist when the need arises.