1. A van turned left in front of me and caused a collision in which I was injured. The police report said I was the cause of the accident because I was going too fast to avoid the collision. Do I still have a case?
A1: In California, generally, the police report is not allowed into evidence and the police officer’s opinion as to the cause of the accident is also not allowed into evidence unless he or she is first qualified as an expert. We routinely employ accident reconstruction experts to analyze the accident. In many cases, we find the police officer’s opinion is not well founded. Sometimes the officers who respond to the scene divide up the tasks they are there to do-one officer measures the scene, notes the area of impact, whether there is debris at the scene and where it came from; measures skid marks etc. Another officer may interview the parties involved in the accident and some of the witnesses. Sometimes they don’t talk to witnesses or all of the witnesses. If you are taken to the hospital from the scene an officer may go to the emergency room where you are getting treated and get a statement from you whether you are on pain medication or not. The combination of these factors, plus the experience of the officers can make a difference. They don’t always get it right so it pays to investigate what happened. You may have a case after all.
2. The police report said there was a long skid mark from my motorcycle at the scene of the accident which indicates I was speeding and therefore at least partially or wholly responsible for the accident. Does the skid mark hurt my case? I don't remember skidding at all.
A2: It is very difficult to determine motorcycle speed from a skid mark. It is unlikely you could leave a rear wheel skid too long without losing control and a hard braking action on the front brakes only would result in the rear wheel leaving the ground. Car or truck skids can more easily be interpreted for speed. In some cases the police attribute the skid mark to you but it may have been from another vehicle. One photo of an accident scene I recently took showed all kinds of skid marks. Later the police could not say the skid mark in question was my client’s.
3. I was riding on the right edge of my lane on the highway and a car cut in front of me from the next lane over and stopped suddenly for traffic. I could not avoid him and rear-ended him. The police said it was my fault for rear-ending him. Do I have a case? I was injured in the accident.
A3: If you were traveling a safe speed for conditions and the other driver cut you off and then stopped, then you do have a case. He violated your right of way by an unsafe lane change. He probably didn’t see you. Not seeing the biker is a huge factor in causing auto or truck/motorcycle accidents.
4. I was hit by a car and injured severely, underwent surgery and have suffered quite a bit of pain. The accident was not my fault. I have thousands o dollars in medical bills and a big wage loss. It changed my life. I did not have motorcycle liability insurance at the time of the accident. Does that affect the value of my case?
A4: In California it does. Under what is referred to as Proposition 213 (Civil Code §3333.4) an injured party who does not have liability insurance cannot recover damages to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages even if that party is not at fault. The only thing you can recover is what is called economic damages such as wage loss, medical bills and other actual out of pocket expenses. The exception is if the party that caused the accident was convicted of driving under the influence of alcohol and/or drugs. If that occurs you could recover for pain and suffering even if you did not have liability insurance. Even so, it may be worth it to at least get unpaid bills covered.
5. I was injured while riding because the roadway was defective. Can I recover for this?
A5: Yes. In California the public entity, including the State itself can be held liable for a dangerous condition of public property it owns or controls. A complete discussion of this type of liability is beyond the scope of this FAQ. One thing we do is make Public Record Act requests to see if there were similar accidents in the same place and whether there have been other lawsuits filed concerning the same location. We also want to view the accident scene and see photographs to determine what kind of physical defect caused the accident.
6. I was injured because of a defect in my bike. What can I do?
A6: You can recover damages if a defective product caused your injuries. We check for manufacturer recalls and other product information indicating a problem and check government agency records for significant information. Finally, we retain an expert to analyze and give an opinion as to the defect. One critical factor: Retaining the motorcycle after the crash is extremely important. We need to have the bike to examine the areas where the defect occurred.
7. I was injured in an accident but wasn't wearing a helmet as required by law. Does that mean I cannot recover anything?
A7: You can still bring an action for your injuries. If you suffered a head injury, your recovery may be reduced or denied by a jury or judge if it is found that a proximate cause of your head injury was not wearing a helmet. If you suffered a broken leg the helmet issue may not affect you at all.
8. What is comparative negligence?
A8: In California you would not necessarily be denied a recovery for an accident if the accident were partially your fault. The jury or judge would assign a percentage of negligence to you and your award would be reduced by that percentage. For example, if you were awarded $100,000 and the jury found you 10% at fault your verdict would be reduced to $90,000, which is 10% less. Not every case is perfect but even if you are partially at fault, if your injuries are severe your case is worth pursuing.
9. My injuries put me out of work for quite a while and I had substantial medical bills. Now that I have settled my case do I have to pay taxes on my recovery?
A9: So long as your case is based on physical injuries the answer is no. Compensatory damage awards and settlements on account of “personal physical injuries or physical sickness” are not subject to state or federal income tax. Internal Revenue Code §104(a)(2); California Revenue and Taxation Code § 17131.
10. I was injured in an accident and the fault of the other party is clear. Do I need an attorney now? Can't I wait to see what the insurance company does?
A10: Insurance companies will take your statement and conduct an investigation usually calculated to exonerate its insured. It will not operate in your interest. An experienced lawyer knows how to protect your rights, conduct an investigation on your behalf and analyze the case to help you recover. No insurance company on the other side of your case will ever act to benefit you in any way. This even applies to lawyers who are injured. There’s an old saying that a lawyer who represents himself has a fool for a client. The same analysis would apply to a non-lawyer.
Law Offices of William “Wild Bill” Weiss
14o Geary Street, 7th Floor
San Francisco, CA 94108
Toll Free: 1-888-MC-CRASH (1-888-622-7274)
Local Phone: (415) 362-6765
Fax: (415) 362-2405
Office Hours: 8:30am-5:30pm, Pacific Time, Monday-Friday
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