Articles Posted in Car Accident

When a person is seriously injured in a Washington car accident, it is important to identify all potential avenues of recovery to help fully compensate the victim for their loss.  When an accident occurs in a parking lot or other private property, the property owner or business proprietor may have some liability for the accident, depending upon the facts of the case.

In a recent case, a person injured in a parking lot sued the owner of the store she was intending to enter.  The woman was seriously injured when a vehicle hit her while she was using a crosswalk to go to the entrance of a store.  The vehicle that hit her had to reverse into the crosswalk from the diagonal parking spot where it was parked to go north out of the parking lot.  The woman and her husband sued the driver and the owner of the shopping center.  They later added additional defendants, including the owner of the store.

The trial court found the store owner did not owe a duty of care to the plaintiffs and granted summary judgment to the store owner.  The plaintiffs appealed and argued the store owed a duty of reasonable care because it was in control of the parking lot.  The store owner argued the property owner kept sole control over the common areas under the lease.  The appeals court found the property owner was the possessor of the common areas and had responsibility for maintaining them under the lease.  The appeals court rejected the plaintiffs’ argument the store owner was liable as a possessor of the common area.

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Following a Washington automobile accident, insurance companies often rush to settle with any injured victims.  When injury victims settle too quickly, they may not be fully compensated for their injuries. If the injury victim settles with the insurance company and agrees to release the other driver from all claims, he or she will generally not be able to recover for injuries discovered or treatment received after the release.

A settlement agreement and release is a contract, and contract law applies. To form a contract, the parties must “mutually assent” to the essential terms.  Settlement agreements do not have to be in writing under Washington law.  In a recent case, an injury victim challenged an alleged oral settlement and release due to a language barrier.

The plaintiff was involved in a vehicle accident and received medical treatment for his injuries.  Although the plaintiff’s English is sufficient for his day-to-day activities, he uses an interpreter for legal and medical matters.  An insurance representative called him less than a month after the accident to discuss settlement.  The call was recorded.  The insurance representative stated that purpose of the recording was “to verify that in exchange for [$3,785.51]” the plaintiff agreed to release the defendants “for any and all claims known and unknown for injuries [he] sustained in as a result of the accident…” She asked if he understood and agreed to release the defendants in exchange for $3,785.51.

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In a Washington negligence case, the plaintiff must prove the defendant breached a duty of care and that the breach was the proximate cause of the plaintiff’s injury.  Generally, there is not a duty for one person to prevent someone else from causing injury to another person, but there may be a duty if there is a special relationship.  School districts, due to the custodial relationship with their students, may have a duty to take reasonable steps to prevent a reasonably foreseeable harm to their students.

In a recent case, a personal representative sued a school district after a high school student was killed in an accident off campus.  A physical education teacher took the class for a walk off campus.  The school had policies requiring teachers to get parental or guardian permission before taking students off campus for an excursion or field trip.  The teacher did not follow those policies, but the defendants argued they were not applicable to the walk off campus.  The teacher claimed the principal had approved him taking the class off campus, but there was conflicting information regarding exactly what the principal knew.

The teacher did not get any additional adult supervision.  He walked with the students on the sidewalk beyond the school safety zone.  The speed limit was up to 40 miles per hour.  Some of the students were up to 200 meters away from the teacher at times.  The appeals court’s opinion stated students were “explicitly granted permission” to cross the street outside the designated crosswalks.

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Unfortunately, in some cases, a Washington car accident victim’s biggest adversary may be his or her own insurance company.  Washington automobile insurers must offer personal injury protection (PIP) coverage to their policyholders.  PIP provides no-fault coverage for the insured’s medical expenses arising from an automobile accident.  Insurers must conduct a reasonable investigation before they deny claims.  Additionally, Washington law provides that it is an unfair practice for a PIP carrier to deny benefits for reasons other than medical bills that are not reasonable, necessary, related to the accident, or incurred within three years of the accident.  Sadly, it is not uncommon for an insurer to wrongfully deny the claims of its own insured.

In a recent case, the plaintiffs pursued class actions in federal court against their insurers, including claims under the Consumer Protection Act (CPA) for wrongfully denying their PIP benefits.  One plaintiff alleged that the insurer refused to pay medical bills if a computerized review determined that the bill exceeded a predetermined amount.  The plaintiff alleged that the insurer failed to investigate or make an individualized assessment of the charges before denying them.  The plaintiff argued that this practice constituted unfair practices under Washington insurance law.  WAC 284-30-330 and WAC 284-30-395. She further argued that the practice resulted in a routine failure to pay reasonable medical expenses in violation of Washington insurance law.

The second plaintiff argued that his insurer terminated PIP benefits once an insured reached Maximum Medical Improvement, which he alleged was an unfair practice under WAC 284-30-395. He argued that this practice resulted in the routine failure to pay reasonable medical expenses in violation of RCW 48.22.005.

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Following a Washington automobile accident, a seriously injured person may have to deal with various insurance companies. Although dealing with an insurance company can be difficult, insurers are prohibited from acting in bad faith or engaging in unfair practices.  If the insurer does act improperly, the claimant may be able to pursue an insurance bad faith claim.  In a bad faith case, the insurer’s files may be important evidence.

In a recent case, the plaintiff sought documents and information created during litigation of the bad faith case. The plaintiff was injured in an automobile accident with a drunk driver.  After settling for policy limits with the at-fault driver’s insurance, she filed an underinsured motorist claim.  According to the appeals court’s opinion, the underinsured motorist policy limit was $50,000.  The insurer offered $2,500.  The plaintiff demanded $100,000.  She ultimately filed suit against the insurance company for unfair claims settlement practices and bad faith.  She alleged her damages “far exceeded” the policy limits.

In response to discovery requests, the plaintiff denied the damages payable by the insurer exceeded $75,000, which is the threshold amount in controversy for a case to be removed to federal court on diversity jurisdiction. She responded to a question regarding whether she sought trebling or any multiplier of damages affirmatively. She also stated she intended to seek punitive damages if there was a determination the insurer violated the Insurance Fair Conduct Act.  She acknowledged the amount in controversy could exceed the $75,000 threshold, but offered to stipulate that the amount in controversy did not exceed that $75,000.  The parties never reached agreement on the language for the stipulation.  The insurer informed the plaintiff it would seek removal if the plaintiff did not sign the stipulation.

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In a Washington automobile accident, an injured person may have some coverage through his or her own insurance policy.  This first party coverage may include personal injury protection (PIP), which includes medical expenses and lost wages.  When filing a claim against your own insurer, the terms of the policy, including the definitions, are critical in determining whether coverage applies.

In a recent case, an injured man challenged his insurer’s denial of his PIP claim. According to the court’s opinion, a driver parked on the street opened his door and struck the plaintiff, who was riding his bicycle.  The plaintiff was covered by a California insurance policy with up to $5,000 in medical expenses for an “insured” under the PIP benefit.  The relevant language in the definition of “insured” was “a pedestrian when struck by” a motor vehicle.  The policy did not define “pedestrian.”

The insurer denied the plaintiff’s claim on the grounds he was not a pedestrian because he was riding his bicycle when the accident occurred.  The plaintiff sued the insurer.  The trial court granted summary judgment in favor of the insurer, finding the term “pedestrian,” under its ordinary and common meaning, does not include a person riding a bicycle.  The plaintiff appealed.

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When a person is injured by someone else’s negligence in a Washington automobile accident, he or she may want to seek compensation from the negligent party.  In some cases, however, the negligent party may not have sufficient insurance or may be unidentified.  In such cases, the injured person may seek recovery from his or her own uninsured or underinsured motorist coverage.  If the insurance company denies the claim, the injured person may have to sue his or her own insurance company.

In a recent case, a man challenged the dismissal of claims against his insurer.  The plaintiff was injured while riding his bicycle.  There were no witnesses. The plaintiff cannot remember the accident, but believes he was hit by an automobile.  He suffered a traumatic brain injury and was in the hospital for 10 days.  He reported the accident to his automobile insurer.  The insurer denied his underinsured motorist (UIM) claim because it did not find evidence he was hit by a vehicle.  The insurer reopened the claim after being contacted by the plaintiff’s attorney, but denied it again.  The plaintiff sued his insurer for breach of contract, negligence, and violations of the Insurance Fair Conduct Act and the Consumer Protection Act.

The insurer moved for summary judgment, arguing the plaintiff failed to raise a genuine issue of material fact regarding whether he had been hit by a vehicle.  The insurer also argued his other claims were barred by the statute of limitations. The trial court granted the motion, and the plaintiff appealed.

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A defendant in a Washington personal injury case may try to limit damages by alleging the plaintiff failed to mitigate damages.  A defendant seeking a failure to mitigate jury instruction must show that the plaintiff acted unreasonably in deciding on treatment when there were alternative options.  The defendant must show through expert testimony that the alternative treatment would more likely than not improve the plaintiff’s condition.  A defendant recently challenged a court’s decision not to instruct the jury on failure to mitigate in an automobile collision case.

According to the appeal court’s opinion, the defendant rear-ended the plaintiff’s vehicle.  The plaintiff went to a chiropractor who found she had a ligament injury as a result of the accident.  The chiropractor also found the injury was permanent.

The plaintiff filed suit and the defendant admitted liability, leaving only damages at issue for trial.  According to the opinion, the plaintiff worked as a licensed practical nurse.  She testified she had talked with her colleagues about her treatment options.  She did not want to take medications that would interfere with her work, or to have surgery or injections.  She testified the chiropractic treatments helped manage her pain.  She also testified that immobilization was no longer recommended and that no one she talked to recommended it to her.

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An employer may be held vicariously liable for the negligence of its employees in a Washington automobile accident case when the employees are acting within the scope of their employment.  An employee is acting within the scope of employment when engaged in the performance of duties required or directed by the employer or engaged in the furtherance of the employer’s interest.  An employee is not acting within the scope of employment when engaged in conduct involving a personal objective that is not related to the employer’s business.  The issue of vicarious liability was recently before a Washington appeals court.

The defendant driver failed to stop in time to avoid rear-ending the plaintiff’s stopped vehicle.  The defendant driver works as a regional manager for the defendant employer.  He works from his home and frequently travels for his job.  The defendant employer provides him with a monthly vehicle allowance for the cost of his vehicle and insurance.  The defendant employer also reimburses 80% of his vehicle maintenance and operation expenses.  The defendant driver did not tell his employer about the accident.

The plaintiffs sued the defendant driver and he admitted liability for the accident.  The defendant employer was subsequently added to the lawsuit, and the plaintiffs ultimately added a vicarious liability claim against it. The defendant driver testified in his deposition that he was driving home after working at the time of the accident.

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In Washington, drivers involved in an accident resulting in injury must stop at the scene and remain there to give their name, address, insurance information and vehicle license number to the other driver, passengers or anyone who was struck or injured.  Pursuant to RCW 46.52.020, drivers must also show their driver’s license.  They must provide assistance to anyone injured, including getting them to medical treatment.  What happens, though, if a driver is shaken up and fails to provide all of the required information? A Washington appeals court recently considered whether a case could proceed when the plaintiff originally filed suit against the wrong party after not receiving all of the other driver’s identifying information.

The plaintiff was rear-ended.  She stated the other driver was very upset after the collision and insisted they not call the police or an ambulance.  The plaintiff stated that they exchanged insurance cards and wrote down each other’s information.  She stated the other driver did not offer her a driver’s license or state her name.  She believed the other driver’s name was the name on the insurance card.  In fact, the person named on the card was the other driver’s mother.

The plaintiff filed suit against the person named on the insurance card on the last day before the statute of limitations expired.  The defendant answered, stating the plaintiff had sued the wrong defendant.  The plaintiff amended the complaint to add the driver as a defendant more than two months after the statute of limitations expired.

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