Filing a Lawsuit Against a Deceased Defendant

If you suffered injuries or losses because of someone else’s negligence, you may have the legal right to bring a claim to receive both economic and non-economic damages. However, in some cases, the liable party dies as a result of the accident or during the process of filing a legal claim. Learn more about what your options are regarding filing a lawsuit against a deceased defendant.

The Estate of the Deceased Defendant

If you experienced any type of personal injury that resulted in injuries or losses due to someone else’s carelessness or recklessness, you have a right to become whole and receive both justice and compensation. However, if the negligent party dies, you cannot sue them directly. However, you do have the right as a victim to file a claim against their estate, which is the remaining assets that they leave behind when they die.

Motion for Scire Fascias Substitution

A motion for scire fascias substitution is a legal action that specifically requests that the court substitute a party as a representative for the deceased party’s estate. If the negligent party dies either at the scene of the car accident (or any other type of accident) or prior to filing the lawsuit, the party that will be held responsible and liable to compensate the victim will be the deceased’s estate. In some cases, there may already be a probate case pending. If this is the case, then the victim has the legal option to either intervene in that probate case or file a different and separate civil case along with the motion for scire fascias substitution.

Finding the Executor of the Deceased Defendant’s Estate

One of the other challenges may be finding the executor (representative) of the deceased defendant’s estate. If the deceased person has their estate going through the probate process, this may be easier; however, there are instances where there is no case in the probate court which makes it more challenging to find the executor of the estate.

Legal Challenges Against a Deceased Defendant

There are several complex legal challenges that may occur when a victim files a lawsuit against a deceased defendant. Because there is an inability to interview the defendant regarding the accident, a great deal of information or evidence may be lost due to. Additionally, finding the executor of the deceased defendant’s estate can also prove challenging. Finally, a victim will have to navigate not only a personal injury case but, in some cases, the probate process to winning compensation for their injuries and losses resulting from someone else’s negligence.

Contact an Experienced Personal Injury Attorney

Our experienced attorneys at The Law Office of Daniel H. Rose can navigate both the personal injury portion of your claim as well as the probate portions of this potential lawsuit. It is important to consider visiting with a personal injury attorney as soon as possible due to the complexity and challenge of cases where the defendant has died. If you suffered injuries or losses related to another person’s negligence who has since died, consider visiting with our personal injury attorneys and legal team at 415-946-8900 or online today.

Ways to Handle a Car Accident Involving Children

Many people experience car accidents in California, however, when a child is involved in the accident, you may feel even more terrified and overwhelmed. While some of the steps will be the same, it is important to highlight both the physical and emotional challenges of handling a car accident involving children.

Physical Injuries of Children in Car Accidents

In some ways, children are more resilient than adults physically, and in other ways, they are much more fragile. Make sure to contact 911 immediately after any car accident involving a child and ask whether or not you should move the child for their safety. If you have any indication that the child is badly injured, make sure that you tell the 911 operator in order to get a better answer as to whether or not you should move the child away from the accident scene. Once the ambulance and medical professionals arrive, they will have the expertise to provide a complete medical evaluation and make the determination whether or not the child should be taken to the emergency room.

Seek Medical Attention for the Child

Even if the EMTs indicates that there is no medical emergency, you should still consider taking the child to their healthcare provider to receive a full medical evaluation. In some cases, serious injuries such as traumatic brain injuries or internal organ damage do not show symptoms until hours or days after the accident. Take the time to make sure that your child receives a complete and full medical evaluation to ensure that they do not have any hidden or serious injuries. In some cases, a child will experience a rush of adrenaline which can mask symptoms or pain following a car accident.

Consider Obtaining Psychological Counseling for Your Child

In many cases involving serious car accidents, children can suffer from psychological damage or even post-traumatic stress disorder. Children often do not understand the experience they suffered in the same way that adults do and need time and assistance to process the fear that they have following a serious car accident. Make sure to get the physical and emotional help that they may need after a car accident. In order to obtain compensation from an insurance company for both physical and psychological injuries, make sure to keep a record of all of your medical appointments and any bills you incur.

Contact an Experienced Personal Injury Attorney

If you had a car accident involving a child, you likely feel scared and unsure of your next steps. We want to help you through this traumatic time. Our experienced attorneys at The Law Office of Daniel H. Rose can help you understand the types of compensation you may have a right to receive for both you and your child after your car accident. Consider visiting with our personal injury attorneys and legal team at 415-946-8900 or online today.

Who Can Be Held Liable for Seizure-Related Car Accidents?

In many car accident cases, there will be a clear indication regarding who is at fault for the crash. However, what if one of the drivers experienced a seizure that caused the car accident? If you experienced a car accident that was related to another person having a seizure, who can you hold responsible and liable for your injuries and losses?

Understanding Seizures

In most cases, seizures occur as a result of a medical condition known as epilepsy. If a person has epilepsy, they may pose a greater challenge to other motorists on the roadway because they could have a seizure. However, seizures are often predictable based on identifiable factors. In the United States, people with epilepsy and other seizure disorders are allowed to drive with some legal restrictions if the condition is controlled by medication.

Seizures and Car Accidents

According to the United States National Library of Medicine, only 11 percent of all car accidents involve individuals who had a seizure as a result of epilepsy. This means that most accidents involving drivers with epilepsy are similar to any other car accident. However, there are instances the driver lost control of the vehicle due to a seizure.

Liability When a Driver Has a Seizure

Drivers with epilepsy and other seizure-related disorders often need to get clearance from their doctor in order to drive a vehicle. If you are in an accident with a driver having a seizure, you may have the right to receive compensation for your injuries and losses from them as a result.

Consider the following questions:

  • Did the driver have a medical history of seizures and know that they may have a seizure while driving?
  • How long was the driver seizure-free prior to the accident?
  • Did the driver receive any treatment for epilepsy?
  • Was the driver taking their medication as required?
  • Did the driver lose consciousness before the car accident? How long did the driver feel they were going to lose consciousness before they had a seizure?
  • Did the driver receive a false recommendation from a doctor regarding their ability to drive?

As a victim of a car accident involving a driver who experienced a seizure, you may be able to file a claim against either the driver or even the doctor who negligently certified that the driver could drive with their medical condition.

Contact an Experienced Personal Injury Attorney Today

If you experienced a car accident as a result of another driver having a seizure, you will need to ensure that a full investigation occurs in order to receive compensation for your injuries and losses. These types of cases can prove to be legally complex and challenging. Learn more about your options to hold the other driver liable for your seizure-related car accident by contacting an experienced personal injury attorney at The Law Office of Daniel H. Rose at 415-946-8900 or online today.

 

Determining Fault for Car Accidents with Disabled Drivers

All states allow people with disabilities to obtain a driver’s license. Many drivers, including teens and those with certain disabilities, are issued licenses with certain driving restrictions. If a disabled driver is involved in a car accident, they will be treated just like any driver involved in an accident. That’s because every driver, whether disabled or not, must prove that they would drive safely and responsibly.

Disabled Driver

A disabled driver is a person who is unable to operate a motor vehicle without special accommodation. The term disabled driver refers to a person who has lost at least one limb and requires a special adjustment to operate a car.

Disabled drivers are required to inform the DMV of their disability. A restricted license will be issued, depending on the disability. The vehicle will also be modified to accommodate the disabled driver. A disabled driver will have their disability status notation on their driver’s license.

California Car Accident Basics

In California, responsibility for car accidents is determined by who is “at-fault.” That means that before an auto insurer pays out any money, they must first find who caused the accident.

There are two ways to determine fault: (1) common law negligence and (2) by a statute. The first, common law negligence, requires proof that the driver failed to exercise reasonable care in operating their vehicle. Police reports, witness statements, and other investigatory tools are used to prove the driver’s negligence.

The second way, proving fault through statute, is easier to prove. California lawmakers have already found certain conduct negligent, like speeding. It’s outlined in the California Vehicle Code. If the driver involved in the car accident violates the California Vehicle Code by running through a red light, then the driver will be presumed to be negligent.

Determining Fault for Disabled Drivers

Aside from the two ways to determine fault listed above, a disabled driver will have additional factors to determine negligence. Usually, negligence will hinge on whether the disabled driver complied with their license restrictions.

Disabled and restricted drivers must abide by the restrictions placed on their driving privileges. If they fail to comply with those restrictions, it will be considered a traffic law violation. Any violation of a traffic law amounts to negligence because those laws exist for safety reasons.
For example, if a disabled driver is required to modify their vehicle for safe operation, and the driver failed to use that equipment, that can be a traffic citation. Anyone injured in the accident will be able to use the citation as evidence that the disabled driver was negligent because they failed to comply with required safety requirements.

Contact an Experienced Personal Injury Attorney

The issue of negligence in an auto accident doesn’t end when one party shows that the other was negligent. Even if one party was negligent in California, damages could be reduced if the other party also acted negligently. Contact our attorneys at 415-946-8900 or at Dan Rose Law to schedule a free consultation about your specific case.

How Gap Insurance Can Help You After a Car Accident

GAP Insurance, or Guaranteed Asset Protection, fills the gap between the auto insurance company’s payout and the actual damages. Even though California requires all drivers to have car insurance, there are many instances when damages can be higher than a driver’s coverage limits. Other times, the driver who caused the accident may not have insurance at all. Having gap insurance is not required, but it can lessen your out-of-pocket expenses if you are involved in a car accident.

In California, the minimum policy insurance limit required is $15,000 for personal injury and $30,000 for personal injuries if multiple people are involved. The minimum limit for property damage is $5,000. Therefore, if a driver does not carry full coverage insurance, the chances of damages from a car accident exceeding policy limits are very likely.

GAP Insurance

The purpose of GAP insurance is to cover the difference between what’s owed to the lessor for a totaled vehicle and the fair market value that car insurance pays on a total loss. Most new cars lose a full 20 percent of their value within the first year. Depending on the vehicle, the price paid, and interest rates, the balance remaining can sometimes be more than the car’s actual value.

Where standard auto insurance policies only cover your vehicle’s actual cash value at the time of the accident, the gap insurance can provide the driver with the exact amount still owed on the car. Gap insurance may be more beneficial in accidents involving a new or leased car.

Car Accidents

In California, the most typical auto-insurance policies include:

  • Bodily injury liability
  • Property damage liability
  • Uninsured/underinsured motorist. Covers expenses if the at-fault party doesn’t have enough insurance to cover damages.
  • Personal Injury Protection. Also referred to as PIP or no-fault. This type of coverage is provided as per-person or per-accident limits. It’s used to cover medical expenses, rehabilitation, disability, or loss of income caused by a car accident.

 GAP insurance does provide restitution for bodily injury, emotional trauma, medical expenses, or other damages incurred from a car accident. GAP insurance’s primary purpose is to protect buyers from the cost of financing a new vehicle. GAP policies are only applicable to vehicle losses.

To find out what your particular Gap insurance covers, it is crucial to understand the details of your policy. For example, Gap insurance usually provides restitution for major damage or total loss. It usually doesn’t cover ordinary maintenance on a vehicle.

Involved in a Car Accident

In California, a person injured in a car accident has two years from the accident date to file a personal injury claim. Once this two-year time frame passes, the injured person is no longer entitled to collect injuries.

Understanding Options if Damages are Greater Than Insurance Coverage

The at-fault party’s policy limits do not bind you. If you are injured, you may seek compensation beyond the auto insurance policy limitations. Other options may include:

  1. Identify Other Liable Parties

Sometimes, there may be more than one party responsible for the accident. If another party is also responsible for the accident, the injured party can recover damages from them.

  1. Sue the Liable Party Beyond Their Insurance Coverage

If the at-fault party’s policy limits do not cover your damages, you have the right to sue the individual if their negligence caused your accident personally.

  1. File a Claim Against Your Uninsured Motorist Policy

Contact a Skilled Attorney

Deciding on whether Gap insurance is the right decision for you depends on your financial circumstances. Speak to an experienced personal injury attorney at the Dan Rose Law Firm to help make the right decision for you.

Key Differences Between Personal Injury Lawsuits and Workers’ Compensation Claims

Suppose you are injured at your place of employment during work hours. You may be wondering what options you have to recover medical expenses and lost wages. Understanding the differences between filing a personal injury lawsuit or a claim under workers’ compensation is an essential first step.

Only certain classes of workers are entitled to workers’ compensation benefits. Unpaid volunteers, independent contractors, and domestic employees in private homes cannot receive workers’ compensation. Therefore, determining whether you qualify can assist you in deciding which claim to pursue.

If workers’ compensation covers your injury, the Division of Workers’ Compensation (DWC) provides administrative and judicial services for benefits. An injured party files a claim with their employer’s insurance carrier. For personal injury lawsuits, a case only starts when the injured party files a petition with a California court.

Below are some key differences between both claims.

  1. Workers’ compensation provides immediate relief

Workers’ compensation provides immediate relief to a worker who suffers a work-related accident. That’s because workers’ compensation benefits are designed to provide the injured employee with medical treatment needed to recover from a work-related injury or illness. It may also include lost wages during the recovery period, rehabilitation, and temporary disability pension while you are unable to work. With very few exceptions, California requires employers to maintain workers’ compensation insurance, even if they only have one employee.

In a personal injury lawsuit, the court tries to quantify the worker’s injuries with a monetary award because it can’t mend broken bones. Depending on the extent of the worker’s injuries, damages can include pain and suffering and punitive damages. Workers’ compensation benefits do not have pain and suffering damages.

  1. No-Fault Needed for Workers’ Compensation

In a workers’ compensation claim, the injured party does not have to show that the employer was “at fault” to prevail on their claim. Workers’ compensation would cover specific injuries, even if the employer or supervisor were not a fault. The injury only needs to be work-related.

Not having to show the employer’s fault is crucial when compared to a personal injury lawsuit. In almost all personal injury lawsuits, the injured party must show that the employer was negligent in their actions, leading to the injury. If the employer can show that they were not negligent, they can immediately dismiss the case.

  1. Workers’ Compensation Does Not Cover All Damages

In a worker’s compensation claim, an injured employee is only entitled to recover reasonable medical care expenses, temporary disability benefits, permanent disability benefits, job displacement benefits if the injured worker cannot return to work, and death benefits.

For personal injury claims, an injured party has the potential to recover the same benefits offered under workers’ compensation, but also pain and suffering damages.

Contact a Skilled Attorney

Once an injured party files a workers’ compensation claim, they cannot file a personal injury lawsuit. Consulting with an experienced personal injury attorney at the Dan Rose Law Firm can help you make the right decision for you.

What Happens if You Get into a Car Crash in Another State?

The last thing that anyone expects is to have a car crash in another state. Whether you are visiting another state for business or for a vacation, a car accident can cause many different types of complications. Having a car accident in unfamiliar territory with a different set of state laws may make you ever more stressed and anxious. Learn more about your legal rights following a car crash in another state below.

Car Insurance Coverage in Another State

Every state has a different set of minimum standards that all drivers must maintain regarding their car insurance coverage. While every state has different minimum standards, your car insurance will likely cover the standards of all states. This means that if you travel to a different state that has higher financial threshold limits for both personal or property damage, your car insurance will (in most cases) provide you that minimum level of coverage under your policy. Always take the time to read your actual policy as well as visit with a representative to make certain of all of your coverages and legal rights. If you ever have any questions regarding a discrepancy between what the insurance company representative is telling you and what you believe your policy covers, consulting with an experienced personal injury attorney can ensure that your rights remain protected.

No-Fault Insurance States

Again, every state has a different set of rules and regulations regarding car insurance. No-fault insurance states are ones in which the insurance policy of the victim must pay for injuries and losses suffered by that victim. This is the case even if the victim was the responsible party that directly caused the accident. The states that are considered “no-fault” insurance states are Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, and Utah. If you experience an accident in one of these states, visiting with an attorney can help you better understand the process by which you have a legal right to receive compensation from your own insurance company.

Differences Between Comparative Fault and Contributory Negligence

States have different ways of also handling fault and responsibility with respect to car accidents. Some states have a comparative fault standard, while others have a contributory negligence standard. These are complicated legal standards, and some states allow a victim to still receive compensation for their injuries even though they are partially responsible for the accident, while other states indicate that a victim must only remain less than 50 percent responsible for the accident tin order to receive compensation.

Contact an Experienced Car Accident Attorney

While you may have an insurance policy that will cover the injuries and losses of others if you were negligent in a car accident, there are also many circumstances in which you will also be able to receive compensation for your injuries and losses. You could still be awarded damages from your own insurance company, even if you were partially to blame for your accident. Every state has specific laws, and in order to better understand your legal rights, contact an experienced car accident attorney at The Law Office of Daniel H. Rose at 415-946-8900 or online today.

Can Minors File a Wrongful Death Case?

Under California Code of Civil Procedure 377.60, a minor who is the child of a deceased person who was a victim of someone else’s negligence, may have the legal right to file a wrongful death case under certain circumstances. If your parent died as a result of someone else’s recklessness or carelessness in the state of California, you may have the right to file a wrongful death case. Learn more about your legal rights below and by contacting an experienced wrongful death attorney today.

Wrongful Death

Wrongful death is any circumstance in which a person dies as a result of injuries inflicted upon them directly resulting from another person’s negligence or recklessness. Wrongful death cases can include deaths resulting from car accidents, medical malpractice, trucking accidents, slip and fall injuries, dog bite injuries, nursing home abuse and neglect and more. Any instance where a person dies as a direct result of someone else’s action or inaction can bring about a wrongful death claim in California.

Who May File a Wrongful Death Claim?

In California, a spouse, domestic partner, children, grandchildren, and other minor children who were at least 50% financially dependent on the deceased victim (including stepchildren) may have the legal right to file a wrongful death claim.

How Minors File a Wrongful Death Claim

If a minor child loses their only parent, or both parents, as a result of someone else’s negligence, they will first need to have an establishment of guardianship with another adult. A guardian will be named by the court if the parents did not make any provision for their child regarding guardianship in the event of their death. Once a guardian is established under the law, they will act as the legal representative of the child, and may file a wrongful death action on behalf of the child with respect to the loss of the child’s parent.

Statute of Limitations for Wrongful Death Claims

The statute of limitations (deadline by which a person must file a claim or lose the legal right to do so) in the state of California is two years from the death of the victim. While it may seem that two years is a long period of time, wrongful death claims often take a considerable amount of time to develop and can include detailed investigations involving expert witnesses. Time is of the essence, and if you have the legal right to pursue a wrongful death claim on behalf of a minor child, you should consider visiting with an experienced California wrongful death attorney as soon as possible.

Contact an Experienced Wrongful Death Attorney

Any loss of life can be devastating to family members. When a loved one is a parent, the minor child has lost an incredible amount of time, love, and guidance from them. If you believe that a minor child has the right to file a wrongful death case on behalf of their parent or guardian, contact The Law Office of Daniel H. Rose. We will work on your behalf to ensure that you understand your legal rights and that you receive justice. Contact our experienced wrongful death attorneys at 415-946-8900 or online today.

What Happens When a Car Accident Claim Exceeds Insurance Limits?

If you experienced injuries and losses as a result of a car accident caused by someone else’s negligence, most victims understand that they have the legal right to receive compensation from an insurance company for their medical bills, loss of wages, property damage, and pain and suffering. However, in some cases, a car accident is catastrophic with severe injuries and losses. As a result, the car accident claim of the victim exceeds insurance limits. If you filed a personal injury claim, learn more about your legal rights regarding what to do if you claim exceeds the negligent party’s insurance limits.

Car Insurance Policy Limits

Every person will have a different insurance company and a different insurance policy within that company, which offers different coverage limits. While every driver must have the minimum amount of coverage under the law of their state to operate a motor vehicle legally, there are often different levels of coverage to choose from by a policyholder. If a car accident policy only allows for a $50,000 limit for the personal injuries of a victim, what happens when the victim suffers such severe injuries that their medical bills exceed that amount? The insurance company does not have a legal obligation to pay any amount of compensation to a victim in excess of the policyholder’s limits, which may make obtaining full and fair compensation unattainable through the insurance policy alone.

California Insurance Policy Minimum Standards

According to California Insurance Code §11580.1b, the following are the minimum amounts of insurance coverage that every driver in the state must legally carry:

The minimum coverage amount of $15,000 for injury to one person involved in a car accident in California is quite low. Therefore, a victim must look to other options in order to reimburse their costs for medical bills, lost wages and property damage.

Options When a Car Accident Claim Exceeds Insurance Limits

If you suffered injuries or losses in a car accident and your economic and non-economic losses exceed those covered by the negligent party’s insurance policy, the following are some legal options available to you:

  • File a personal injury lawsuit against the negligent party for the remainder of your losses
  • Attempt to recover additional compensation from your own insurance policy, if possible
  • File a personal injury lawsuit against another defendant who has legal liability with respect to the car accident, if applicable
  • File a claim under an “umbrella policy” held by a negligent party, if the negligent party is a larger business or corporate entity, such as a trucking company or business that the driver operated a motor vehicle for at the time of the accident

Contact an Experienced Car Accident Attorney

You have many legal options available to you following a car accident in which your claim exceeds the negligent party’s insurance limits. Learn more about your options by contacting an experienced car accident attorney at The Law Office of Daniel H. Rose at 415-946-8900 or online today.

Hit by a Drunk Driver? What You Need to Know About Settlements

It is every driver’s responsibility to drive safely according to California’s traffic laws. Unfortunately, not every driver takes that responsibility seriously. Too many times, accidents involve one driver who was driving drunk. These accidents may be especially dangerous because the drunk driver’s reflexes have been hindered, potentially causing greater damage. If you have been hit by a drunk driver, you may be immediately contacted by the drunk driver’s insurance company seeking to settle because they want to pay the minimum amount as quickly as possible.

Settling is attractive because you will not have to go through litigation, which can sometimes take years. You may also need some money immediately to help with your bills from the injuries suffered. However, before you sign anything, here’s what you need to know.

Don’t Settle Right Away

If you are considering a settlement, you want to keep in mind how long you have to file a claim. That way, if you can’t agree on the terms of the settlement, you still have protection from the courts. In California, a victim of a drunk driving accident has two years from the date of the accident to file a personal injury claim with a court of law. Drunk driving accidents are treated just like other car accidents. That means that once the two-year mark passes, which is also known as the statute of limitations, you can no longer collect compensation for your injuries.

However, that doesn’t mean you should rush into a settlement. Most insurance companies will ask you to sign a “release of liability” form when you agree to settle. That will prevent you from seeking any other damages from the car accident if future injuries develop at a later time, no matter how severe.

In California, nothing prevents you from filing a suit while the drunk driver is also being criminally prosecuted for DWI. However, if the other driver has been convicted of or pleaded guilty to driving under the influence or other charges associated with DUI, then you would be in a better position to settle for a larger amount.

Types of Damages

When settling, it is important to understand what you are entitled to. If you have been injured in a drunk driving car accident, you are entitled to compensation, called damages. Damages are a monetary award because there is no other way to mend broken bones or soothe emotional injuries. The amount awarded however, is specific to the injury of the victim, as well as the conduct of the party at fault. Types of economic damages include:

Medical Expenses. You are entitled to the cost of any medical treatment associated with the car accident. That includes doctors’ appointments, surgery, hospitalization, prescription medications, etc. You are even entitled to medical expenses that you have not yet incurred, such as potential future medical bills.

  • Lost Wages. If your injuries associated with your car accident prevented you from working, you can recover those wages. For those with severe, life-altering injuries, you may also be eligible to recover future lost wages.
  • Pain and suffering. This category of damages refers to numerous non-financial damages. It can include both physical and emotional pain.
  • Punitive damages. Punitive damages are rare, but justifiable in some cases when the liable party’s actions that led to the accident were especially horrendous.

If you have been hit by a drunk driver and have been offered a settlement, it is important to contact an experienced attorney to protect your rights. Even though we understand that money cannot change the situation, at Dan Rose Law, we will fight hard to protect your rights to get you the compensation you need. We invite you to schedule a consultation, at no cost to you, by calling 415-945-8900 or scheduling online to discuss your case.