Blog

Wednesday, October 16, 2019 - 11:42am
What happens when a person is seriously injured, but their medical expenses far exceed what can be recovered from the defendant’s insurance coverage?  Can the injured person’s health insurance carrier get all the money back they paid for their medical care, even if that leaves the person not fully compensated (not “made whole”)?  The language of the insurance contract itself affects what recovery rights the health insurer has in this situation, but the Make Whole Rule is generally used when an injured party seeks a waiver of the contractual obligation to reimburse medical insurance and automobile medical payment benefits to the insurer.  This obligation usually arises in cases after judgment or settlement, when the insurer shows up demanding reimbursement for benefits it has already paid.  The reasoning behind the Make Whole Rule is that the insurer should not be reimbursed for benefits it paid unless and until the plaintiff insured is first “made whole,” that is, fully compensated for their injuries. 
 
California adopted the Make Whole Rule in Sapiano v. Williamsburg National Insurance Company (1994) 28 CA 4th 533, holding that a commercial vehicle insurer in a subrogation claim cannot “assert its contractual right to repayment where the total third party insurance is insufficient to compensate the full loss suffered by the insured.”  The plaintiff has not been made whole if the amount recovered from third-party tortfeasors (defendants) does not fully compensate them for their injuries.  In such cases, insurance companies should not be allowed to receive reimbursement through their right to subrogation. This is the primary concept of the Make Whole Rule. There should be no right to subrogation when the injured party has not been made whole.  Janssen Malloy LLP is currently representing a client who was seriously injured in a motorcycle/vehicle collision, with over $385,000 in paid medical expenses, with a defendant who has only a $50,000 policy limit (and no assets beyond that policy to satisfy a judgment).  We are demanding a waiver of the health insurer’s subrogation reimbursement claim on the basis that our client has clearly not been made whole.
 
Insurers try to avoid the Make while Rule by altering the contract language to include a clause giving the insurer’s reimbursement rights priority, even if the policyholder has not yet been made whole.  Careful review of the contract language is required, since such clauses are strictly construed against the party that drafted them (the insurance company).  Since the insurer has already been paid a premium to cover the risk that the insured may need medical expenses paid under the policy, it is hardly fair that they also attempt to also take the limited recovery of their insured policyholder.  Injured persons need experienced and knowledgeable trial counsel to be fully and fairly compensated, and the attorneys at Janssen Malloy LLP stand ready to assist when need arises.
Wednesday, October 2, 2019 - 11:54am
We as a firm are proud of our roots in and connection to the Humboldt County community. It is no coincidence that our office looks out at the County Courthouse, a fact that becomes especially helpful when we are in trial across the street. However, while we are without a doubt a Humboldt County law firm, our practice and present-day technology enable us to effectively represent clients across the state, in neighboring Oregon, and even across the country.
 
Generally speaking, a personal injury or wrongful death case will be filed and take place in the court of the county where the injury occurred, which explains why many of the personal injury cases our firm handles are in Humboldt, Del Norte, and Trinity Counties. However, being a local or regional firm does not prevent us from handling cases in the Bay Area, Sacramento, Los Angeles, or beyond. Earlier this year Janssen Malloy LLP obtained a $3.2 million judgment in Los Angeles Superior Court, which included a substantial award of punitive damages, against the owners of a dog that attacked and seriously injured a client. We have also tried through the arbitration process and settled other cases in the Bay Area.
 
Also, after a traumatic event such as a serious car accident, victims or witnesses relocate from the county where the injury occurred. In one recent case, a United States Coast Guard (USCG) serviceman and his family were injured in Del Norte County, but while the case was still pending arbitration, he was transferred by the USCG to the East Coast. One of our attorneys handling that case flew to the East Coast to defend the client’s deposition, and worked with him to schedule and make travel arrangements for the mediation that resulted in a significant six-figure settlement of his case.
 
Partner Megan Yarnall, having attended law school at the University of Oregon, is admitted to practice in both California and Oregon. She and partner Michael Crowley together successfully brought and ultimately settled a wrongful death suit against the city of Cottage Grove, Oregon. Janssen Malloy LLP was recently retained by another Oregon family in a significant personal injury case for which the venue will be in an Oregon County Circuit Court.
 
Janssen Malloy LLP is experienced in extending its geographic reach well beyond the confines of the Redwood Curtain in seeking justice for our clients who have been injured by the negligence or wrongdoing of others. If you are seeking legal representation for a personal injury claim, call us for a free consultation.
Wednesday, September 25, 2019 - 7:56am
Janssen Malloy LLP this month obtained a $1.5 million recovery for our client in a motorcycle crash hit and run case.  While the Eureka Police Department initially listed the defendant hit and run driver as “unknown” (since he fled the scene of the collision), our investigation located the defendant, and we were able to prove liability and recover the limits of his auto liability insurance coverage (California’s mandatory minimum of $15,000).  That perfected our client’s right to pursue compensation under his underinsured motorist (“UIM”) coverage with his own insurance carrier. 

Our client was seriously inured in the crash, suffering orthopedic fractures of his ribs and wrist, as well as back injuries and a traumatic brain injury.  He ultimately required two back surgeries, and had a substantial past and future wage loss claim due to his functional limitations that precluded him returning to his employment as a building contractor.
 
Our client had $500,000 UIM coverage with his own insurer, but also had a $1 million excess  or “umbrella” policy coverage on top of the underlying $500,000 UIM limit, for a combined coverage of $1.5 million.  We demanded arbitration of his UIM claim with his own insurer, after they refused to pay the limits pursuant to our documented settlement demand. The case proceeded through litigation, with ten expert depositions completed, and our client’s insurer finally agreed to pay the full policy limits two weeks before the binding arbitration hearing (a binding arbitration is the trial procedural remedy available in a UIM dispute).  The case presented challenges on liability, proof of damages, and expert testimony, and only resolved for the maximum amount of available coverage because the case was properly prepared for arbitration.
 
This case displays the need for experienced trial counsel to steer a client’s case through the obstacles of insurance coverage to full, just and fair compensation.  The trial attorneys at Janssen Malloy LLP stand ready to assist those inured through the negligence and wrongdoing of others.
Wednesday, September 18, 2019 - 5:54am
January 1, 2020 is right around the corner.  If you are an employer with five or more employees in California, you must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees.  All nonsupervisory employees must receive at least one hour of classroom or other effective interactive training about avoiding sexual harassment.  And, you should assume that all employees must receive job-specific harassment training within six months of beginning a job. And, the training must be provided once every two years, with records of training having been completed.  The trainings can be provided only by certain qualified people, including attorneys experienced in employment law, human resource professionals with specific practical experience, and university instructors with certain credentials.  If you are a California employer, please start making plans to provide an appropriate and timely training!  Contact us to discuss the possibility of providing required training under the law.
 
Thursday, September 5, 2019 - 6:54am
Recently, the Medical Board of California reported on the efficacy of its self-styled “death certificate project.”  As you’ve likely heard, the Medical Board’s project uses California data regarding deaths to identify physicians associated with opioid prescriptions to deceased patients.  The Medical Board’s purpose is to investigate whether physicians violated the law.  Since its inception, 23% of the Medical Board’s death certificate investigations have resulted in disciplinary action taken—either an Accusation filed by the Board against a licensee or some prior action taken by the Board for prescribing practice violations.  The Board’s report on disciplinary statistics can be found here.
 
If you have received information to suggest that you are being investigated for opioid prescribing practices, please seek the advice of an attorney experienced in the defense of physician licenses.