Med pay is coverage under a driver’s auto liability policy which pays for medical expenses incurred as a result of an injury sustained in a motor vehicle collision.  It is a separate category of coverage under a driver’s automobile liability policy, and should not be confused with a person’s health insurance coverage (which might be through a person’s employment).

Here is how a driver’s med pay coverage works, and why it is important.  If an insured driver is injured in a motor vehicle collision, the med pay coverage in their policy (provided they have paid a premium for such coverage) applies to cover the medical expenses arising out of injuries suffered in that collision.   The med pay coverage is “primary,” meaning that it is the first avenue of coverage the insured driver should look to.  The med pay coverage should pay for medical expenses arising out of injuries from the collision, up to the limit of the coverage for which the premium has been paid.

Very often, drivers are unaware of their own med pay coverage, or are unsure how it operates, and therefore it is not used.  The benefit of the med pay coverage is that it pays for medical expenses arising out of the incident, without any copay, share of costs, or deductible (compared to a health insurance type of coverage).

Very often, medical providers (such as hospitals, doctor offices, etc.) are also not aware that the med pay coverage is primary, and will simply bill medical expenses to the patient’s health insurance coverage, especially when that information may already be in their computer database for the patient.  When that happens, the insured driver is not receiving the benefit for which they paid the premium.

When a medical provider bills a patient’s health insurance coverage rather than the med pay coverage under the patient’s auto policy, the driver is not getting the benefit of the bargain for which they paid the premium.  In this circumstance, it is a good idea to invoke the med pay coverage to reimburse the driver/patient for the share of costs/deductible/copay that may not be covered under the health insurance policy.
The premium cost for obtaining medical payments coverage in an auto policy is inexpensive, at least when compared to the premium costs for obtaining health insurance coverage.  Once a basic policy of auto liability coverage is in place, it is relatively cheap to increase the medical payments coverage.  Given the number of uninsured or inadequately insured (also called underinsured) drivers on the roadways, increasing one’s med pay coverage is a very smart economic decision.

Most drivers are overwhelmed with decisions to make once they have been injured in an automobile collision.  The Janssen Malloy LLP attorneys are well versed in how the various automobile insurance coverages operate and stand ready to assist you in answering those questions and protecting yourself, if need arises.

Read the report here:  Esquivel v. County of Humboldt  jury verdict.

This past week it came to our attention that Harley Davidson issued a recall for 250,757 touring motorcycles from years 2008-2011 due to a issues with the brakes. Harley officials said the rear brake-light switch could be damaged by heat from the bikes’ exhaust systems. There has been one reported accident attributed to the brake defects.

Following is information from a Wall Street Journal bog by Jonathan Welsh on October 23, 2011 regarding the recall with model numbers of the bikes subject to the recall:

Motorcycle maker Harley-Davidson Inc. is recalling certain touring motorcycles, trikes and models from its Custom Vehicle Operations or CVO from the 2009 through 2012 model years. The reason for the recall is that the rear brake-light switch could be damaged by heat from the bikes’ exhaust systems.

According to a document filed with the National Highway Traffic Safety Administration, the recall includes a total of 250,757 models built from June 6, 2008 through Sept. 16, 2011. The company says it knows of one alleged crash attributed to the defect.

The company says the excessive heat may cause the switch to fail to activate the brake light during braking, or to activate it when the brake has not been applied. The problem could also result in a brake fluid leak at the switch that could keep the rear brake from working properly. Any of these problems could cause a crash.

A motorcycle’s rear brake is usually operated by a foot pedal while a hand lever controls the front brake, and riders are supposed to apply them together. Though the front brake does most of the work to slow the bike, losing the rear brake’s effect is a serious problem.

Harley-Davidson said its dealers will replace the rear brake light switch free of charge. The recall is expected to begin about October 31.  Owners may contact Harley-Davidson at 414-343-4056.

Here is a list of affected the Harley-Davidson models and model years:

H-D / FLHP 2009-2012

H-D / FLHPE 2009-2011

H-D / FLHR 2009-2012

H-D / FLHRC 2009-2012

H-D / FLHT 2009-2010

H-D / FLHTC 2009-2012

H-D / FLHTCU 2009-2012

H-D / FLHTCUSE4 2009

H-D / FLHTCUSE5 2010

H-D / FLHTCUSE6 2011

H-D / FLHTCUSE7 2012

H-D / FLHTCUTG 2009-2012

H-D / FLHTK 2010-2012

H-D / FLHTP 2009-2012

H-D / FLHX 2009-2012

H-D / FLHXSE 2010

H-D / FLHXSE2 2011

H-D / FLHXSE3 2012

H-D / FLHXXX 2011

H-D / FLTR 2009

H-D / FLTRSE3 2009

H-D / FLTRU 2010-2012

H-D / FLTRUSE 2011

H-D / FLTRX 2010-2012

H-D / FLTRXSE 2012

HSU’s Disability Awareness events continue with “When Billy Broke His Head,” on Tuesday, October 18th, 2011, at 6:30 p.m., HSU Gist Hall 218.  This is a first-person road movie about disability, civil rights and the pursuit of an intelligent life after traumatic brain injury, and includes a post-film interactive workshop, free admission, and refreshments.

While the amount to be received by plaintiff Elena Esquivel, 29, is currently unclear, a civil jury on Friday awarded a total verdict for damages in excess of $548,000, which includes money for past and future medical expenses, pain and suffering and lost wages. However, the jury found Esquivel to be 25 percent responsible in the attack that rendered her left arm permanently damaged, so she will receive a sum around three-quarters of the total award.

Esquivel filed suit in April 2009, alleging that the county acted negligently when it took “Hoddy,” a pit bull terrier that had previously bitten three other people, to the McKinleyville Animal Care Center where Esquivel worked as a receptionist, for a rabies vaccination.

On Sept. 3, 2008, an animal control officer responded to a report that Hoddy — an un-neutered male — had bitten his owner’s neighbor. The officer realized the dog didn’t have a current rabies vaccination and ordered the owner to take him to the county animal shelter in McKinleyville for a 10-day quarantine. At the end of 10 days, the dog was transported by a kennel worker — not an animal control officer — to the McKinleyville veterinarian’s office to receive the vaccination.

Esquivel’s attorney Patrik Griego said he argued the kennel worker was entirely untrained to handle a vicious dog and was also unaware that Hoddy had also bitten two other people — another neighbor in 2004 and a man at a store in 2007.

”Nobody that was dealing with this dog really knew the extent of its bite history and the circumstances of its previous bites,” he said. “All three people that were bitten said the bites were unprovoked.”

Griego said he argued that despite warnings from Hoddy’s owner that he would have to be handled with a catch-pole, the kennel worker, identified in court documents as Tracey Barnwell, used a leash when transporting him from the animal shelter to the veterinarian’s office in the back of a county pickup truck with a camper shell on Sept. 15, 2008.

At the veterinarian’s office, Esquivel came out to the parking lot to watch a veterinary worker give Hoddy the rabies vaccination in the back of Barnwell’s truck while the kennel worker held him by the leash, which she’d wrapped around the dog’s snout as a type of muzzle, according to Griego. The vaccination was administered without incident, Griego said, at which point, Barnwell held Hoddy’s leash in one hand while attempting to close the truck’s camper shell with the other.

While Barnwell was doing this, Griego said his client and the veterinary worker turned to walk back inside the vet’s office. Griego said Hoddy then leapt from the back of the truck, dragging Barnwell behind him, and attacked his client, first biting her in the stomach before again lunging at her and biting her left arm, leaving a “de-gloving” injury that stripped skin and tissue from Esquivel’s forearm.

The county’s attorney Nancy Delaney said she believes Esquivel’s actions instigated the attack, a notion she said seems supported by the jury finding Esquivel 25 percent responsible.

”Rather than going directly back into the care center, she was still standing there and walked in front of the dog to go back into the care center, which is what we suggested prompted the dog to jump out of the vehicle,” Delaney said. “It’s a dog that’s just had a vaccination. It’s a dog that’s in an uncomfortable situation. One would expect an experienced animal professional to not move in any manner that could provoke the dog. … For whatever reason, she chose to walk in a direction that could have been perceived as threatening to the dog. The dog could have perceived that it needed to protect the kennel worker like it perceived it needed to protect its owner.”

Hoddy was euthanized shortly after the incident.

The mauling forced Esquivel to undergo a number of surgeries, including one to graft skin from her scalp onto her forearm. Griego said his client will likely have to use patches that slowly administer pain medication to her arm for the rest of her life, and also relies on a compression sleeve to keep swelling at bay. She has nerve damage, he said, that will never go away.

”If she bumps up against anything, she’s going to feel pain,” Griego said, adding that Esquivel suffers from Hyperpathia. “She has some areas with no feeling, but the nerves she has that do still have feeling interpret every sensation as pain.”

The jury award includes $150,000 for pain and suffering, $50,000 for that which she will experience in the future, $224,460 for future medical expenses and almost $170,000 for past medical expenses. The last figure is somewhat in dispute, as it amounts to the total amount Esquivel was billed for medical services, not the amount she paid.  Delaney said she expects to see it lowered by the court by as much as $150,000.

Even if the number is reduced, and taking into account Esquivel’s 25 percent responsibility, the county will be on the hook to pay the woman more than $300,000 unless other aspects of the verdict are appealed.

Delaney said she has no intention of appealing because the ruling is less than the county reserved for the case.

”I think the jury reached a fair result,” she said, adding that the award is also less than Esquivel was seeking in settlement talks.

The award is also more than the county indicated it was willing to pay in a potential settlement, Griego said.

The attorney said he still hasn’t sat down with his client to have a detailed discussion of the award, and consequently couldn’t comment on the issue of possible appeals. Griego said he’s initially satisfied with the result.

He said Esquivel — though she has some percentage of permanent disability — is also looking forward to returning to work.

”She didn’t ask the jury for future lost wages, she said, ‘Look, I’m going to find a way to get back to work,’” he said, adding that his client will be looking into a different profession when she’s prepared to return to the work force. “She has a fear of big dogs now.”

Delaney and Griego stressed that the Humboldt County Sheriff’s Office’s McKinleyville Animal Shelter has changed its policies since the incident.

Sheriff’s Lt. Steve Knight, who used to oversee the shelter, said policy now dictates that veterinarians come to the shelter to treat any dog that’s been deemed vicious and that computer systems have been updated to ensure that kennel staff know dogs’ full histories when handling them.

”It was a tragic accident,” Knight said. “Policy has changed.”

Thadeus Greenson/The Times-Standard – 8/9/2011.
Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com.

The claim involved an auto accident in Orange County, California.  Mr. Lewison t-boned Mr. Orozco-Garcia when Mr. Orozco-Garcia, an unlicensed driver, made an unsafe and illegal left turn at an intersection thereby unnecessarily endangering Mr. Lewison and his wife who were proceeding straight through the intersection.  As a result of the accident Mr. Lewison suffered lumbar, thoracic, and cervical spinal injuries, resulting in a bi-level spinal fusion at the L4-S1 level.  Mr. Lewison also suffered permanent and severe urological and intestinal damage as a result of the accident and subsequent medical treatment.  Mr. Griego provided expert testimony from Mr. Lewison’s physicians that  Mr. Lewison, a young man at the time of the accident, was limited to working part-time for the remainder of his life and was unable to perform most household services for his family.  The insurance company defendant hired an expert to contradict these opinions but upon examination the insurer’s own expert agreed that Mr. Lewison’s injuries were caused by the accident and would prevent him from obtaining employment in the future.

In order to achieve the correct results in this case, The Janssen  Law Firm traveled throughout Wyoming, Nebraska, Colorado and California to meet with and depose multiple medical experts, vocational rehabilitation experts, and economists.  The insurance company drove up the costs of the litigation and would have made handling the matter difficult for a small law firm due to the time and financial commitments involved.

As an insured, one should expect that their insurer will pay the reasonable value for a case.  Unfortunately, this is not always the case.  If you or a friend are not being treated fairly by your insurer after being injured by an uninsured motorist please contact us for a free consultation.

The discussion about bike lanes illustrates the predominant role that bicycles increasingly play in many commuters’ lives as gas prices continue to soar.  With the increase in bike commuters, and the unfortunate increase in fatalities and serious injuries to bicyclists, it is becoming more important that bicyclists know their rights.  Many cyclists do not know they have the same rights under the California Vehicle Code to occupy the roadway as does a motor vehicle.  When a cyclist is hit by a vehicle, he or she is often shaken up and not thinking of the important steps necessary to validate their positions in court later.  Here is a brief primer:

For both civil and criminal cases, the most important rule to remember is to document, document, document.  Get complete information about the driver and the vehicle involved in the incident and file a police report.  Get the contact information from every witness available and preserve all evidence you have available.

Contact an attorney before contacting the driver’s insurance company.  Know that there may be ways to recover for your injuries even if the driver is uninsured.  You should be aware there are deadlines for filing a claim so you should attempt to find legal assistance immediately.  If you decide to handle the case without the assistance of an attorney, be aware that court cases must be filed within two years and if a public entity is responsible, claims must be filed much sooner.

The Janssen Law Firm has represented numerous injured cyclists in litigation and otherwise.  Our lawyers and legal staff support and are Humboldt bicyclists: Mr. Morrison and Ms. Michaels often cycle to work while Mr. Crowley is a member of the Humboldt Bay Bicycle Commuters Association and paralegal Nancy Holmes McPartland celebrated bike to Work Day in Eureka this year.

The case illustrates the challenges of putting on a complex personal injury matter.  The plaintiff’s logging practices safety expert, Dr. John Garland, of Oregon State University, in Corvalis, Oregon, did  site inspections of the actual heel boom loader, logging truck and trailer used on the date of the incident to provide information regarding the safety lapses that led to the injury.

In addition to the testimony from Mr. Neves’ treating orthopaedic surgeon regarding the nature and permanent effects from the crush injury, Plaintiff’s counsel engaged vocational rehabilitation expert James McGowan and economist Mark Cohen to provide testimony regarding the impact of the injury had on Mr. Neves’ employability, and his lost earnings as a result of the hand crush injury.

Michael Crowley and the other partners at the Janssen Law Firm have handled numerous log landing, timber falling, and logging operations cases that resulted in serious injury or death to members of our community in Humboldt County.  Their expertise in such matters assists the injured and their loved ones in obtaining justice and full compensation for injuries caused by the dangerous conduct of others.

Eureka and Arcata residents know that the fate of the young woman who was hit in Sacramento could have easily been visited upon any number of pedestrians attempting to cross our city streets each day.

In our Eureka personal injury lawyer practice we have been receiving an increased number of cases involving pedestrians who are hit in the crosswalks by inattentive drivers.   At the intersection of  5th and I Streets, near the courthouse, drivers often honk at pedestrians who are legally crossing the roadway as if the pedestrians forgot to yield the right of way to vehicular traffic.   Drivers typically zoom past pedestrians waiting on the corners of crosswalks without even slowing down, much less yielding.  The problem has become so prevalent that The Janssen Law Firm has contacted Eureka Chief of  Police Garr Nielsen, who has stated that the police officers are going to increase their enforcement because the problem has not gone unnoticed.

We encourage members of the community to yield to pedestrians at crosswalks in Humboldt County.  Failing to yield to our community members needlessly endangers everyone.  It is not just the law, it can also help prevent the tragedy recently addressed by the Sacramento jury.

The obvious was easy– anybody hurt?  When the answer to that is “no” the police do not have time to investigate and you must be sure to get the pertinent information.   Following is a list of the type of  information you should obtain.

1.  Always get identifying and contact information from the other driver (name, phone number, address).

2.  Be sure to get all insurance information (insurance company name and contact telephone number,  policy number,  etc.).

3.  Listen for admissions of fault, but do not make any in the excitement of the moment.

4.  Remember that your cell phone probably has a camera– use it!  Document all damages to the vehicles as well as license plate numbers.

Call your own insurance company as soon as practical, and do not forget that DMV must be notified of all but the most minor of collisions.

If you have been in an automobile accident and need additional assistance, please contact us.   The Janssen Law Firm has successfully represented hundreds of people who have been injured in truck and auto accidents.