Zachar Law Blog

What Happens If There Is Not Enough Insurance from the Responsible Party?

Last week, on what seemed to be an otherwise nice, sunny afternoon, 8 motorcycles and 4 cars were stopped at a traffic light in North Phoenix.  The cyclists were taking a ride to the lake on a beautiful Arizona day, at the start of what is known as Arizona’s “Bike Week”.  

 

While waiting for the light to turn green--and with no warning--a dump truck going too fast SLAMMED into the group causing unimaginable damage and destruction.  

 

Like something out of a horror movie, the truck burst into a ball flames.  When all was said and done 4 of the motorcyclists died.  Others sustained substantial and critical injuries.  It was shocking.  It was tragic.  And the entire incident was the result of one driver's failure to control his speed.  

 

What happens next?

 

First, the families of the injured and deceased will have to take care of their loved ones.  That is very clearly priority #1. 

 

The dump truck driver may well face criminal charges, although, to date, it has been the policy of the County Attorney’s office NOT to seek criminal charges for “accidents” such as this.  If there is no sign of alcohol or drug impairment, and no indication of any cause other than inattention or negligence, then generally, criminal charges are not filed. 

 

However, civil liability for the deaths and injuries is a virtual certainty.  Four (4) deaths and horrific injuries to the survivors (physical, mental and emotional). 

 

The driver of the dump truck will be held liable, as will his employer. 

 

Some people might question why his employer is responsible.  In Arizona, when a person is acting in the scope of employment, and causes an injury or damage, his employer is also held liable, under several theories:  1) that the employee is really acting to further the interest of the employer, 2) that the employer has the greatest degree of control over training, supervision and actions of the employee and 3) that the employer is the one that generally has insurance coverage in place to cover and protect itself and the employee for accident like this. 

 

How much insurance is needed for a horrible collision like this?  There is no good answer to that question, but let it suffice to say: a whole lot of it. 

 

What happens if the insurance for the company and driver is insufficient to adequate cover and compensate the families and the injured for their damages and losses? 

 

There is no easy answer to that question.  In Arizona, we have the right to purchase both Un-insured and Under-insured coverage.  Un-insured will protect us if the responsible driver has no insurance.  Under-insured will protect us if the responsible driver does not have enough insurance.  Arizona requires that all automobile insurers offer BOTH Un-insured and Under-insured coverage to drivers.  There is no requirement that drivers accept or pay for this coverage, but insurers MUST at least offer it.  Additionally, they must document in writing that they offered it, and that the insured declined it.  If they cannot do this, they must provide the coverage—even if an accident has already occurred. 

 

In my practice, I regularly handle cases that involve motor vehicle collisions of a severe nature like this.  I have many clients who were injured while riding motorcycles.  Handling these cases takes some specialized skill to wade through the insurance company arguments and to find all avenues of coverage that exist---particularly when there are many claimants all seeking the damage payout from a single policy. 

 

It's important for an accident victim to have a full understanding of what is and isn't possible in pursuing the full damages owed to them.  Unlike what many may think, the insurance policy limits of the responsible party may not be anywhere near what is needed to compensate all victims and their families. 

 

It is extremely important to get an experienced and board certified injury attorney in a complex case like this.  It is not just a matter of “getting as much as you can”.  It is a matter of understanding all that is going to happen, it is a matter of understanding that you have rights, and that there will be many legal issues to face other than making a claim for money.   An experienced, board certified attorney understands all of these issues, doesn’t cost you any more than an inexperienced attorney, and will be able to assist you, with the legal skills and compassion, through the legal minefield that you have become involved in. 

 

Our hearts go out to all that have been and will be affected by this senseless tragedy.

 

A Hazardous-to-your-Health Center?

The potential of being injured in a fitness center isn't all that crazy to a lot of people.  In a typical health club, there are strange machines that can twist and challenge muscles most don’t know exist.  Stacks upon stacks of free weights are fearlessly lifted as walkers-by are oblivious to the goings on.  Treadmills, stair-climbers, and cycling machines hum at constant speeds.  And for the most part, we don't bat an eye when we visit our favorite fitness center, because the environment is relatively predictable, visible, and contained.

 

Probably the last thing I would expect to fear in at my fitness center, then is ...a chemical leak?  What?!! 

 

That's exactly what happened on Tuesday at a fitness center in Goodyear.  A chlorine leak triggered a building-wide evacuation and sent three people to the hospital.  The cause of the pipe was deceivingly simple: a backed up pipe during some routine spa maintenance.  Yet the accident was enough to cause chemical exposure to several employees, while many visitors reported a burning sensation in their throats. Fortunately, it appears that no one sustained any serious or life-threatening injuries.

 

What's interesting about this recent incident is just how ordinary the circumstances were.  For the fitness center guests, it was just another routine workout.  For the employees, just another day at work. Before the leak, there was absolutely nothing different about that day for everyone involved.  But what many of us may forget to realize is that we expect and depend on places of business to offer safe premises.  

 

Whether it's the grocery store, gas station, or even our doctor's office, we presume a level of risk when we enter other premises.  But, did you know that Arizona law is structured in such a way that allows people to presume a safe environment?  Businesses aren't just being nice when they create a safe, secure building.  It's the law!  

 

Arizona businesses are required to provide a reasonably safe environment for their business guests.  Those who enter to potentially purchase good are called “invitees”.  Arizona law states that we should be safe from unknown and undiscoverable dangers.  The law further provides that the business owner has a duty to discover these dangers, and, make the premises safe, or provide proper warnings prior to harm occurring.  If proven later that the business owners knew or should have known of the danger, but failed to act, then, the business owner may be held liable for the harm to it invitees.

 

In this circumstance, the danger may have been unknown and undiscoverable by the business owner.  In that circumstance, liability may well not attach.  However, if it can be proven that another party (plumber, maintenance company, etc.) caused the harm, then a claim or cause of action may exist against that party. 

 

Chlorine is a simple, household chemical that is used everyday in our homes, pools, and yes, fitness centers.  But when utilized in large amounts, in the presence of others, it can pose a huge hazard if things go wrong.  In this case, it looks as though that is exactly what happened. 

 

Well wishes to those who escaped injury or serious injury.  An investigation nevertheless should be conducted to make sure that this never happens again.

 

New Info on the AZ Sweat Lodge Deaths: Someone Here is Responsible

The autopsy reports have just been released for the victims of the infamous “Sedona sweat lodge case”.  The results indicate that "sweat" was a gross understatement for what happened that fateful night.  Two victims died from heat stroke and a third died from multi-system organ failure.  Some have called it negligence on the part of the proprietors.  I would go one full step more and call it reckless disregard, and most likely, CRIMINAL.  And of all places, it happened in one of the most serene and beautiful settings on our planet--to visitors seeking a spiritual experience from the world-famous guru James Ray.

James Ray is (was) a respected man who I've seen on Oprah, Larry King, and beyond.  This guy was supposedly a professional, certainly a millionaire, who advertised his ability to build "Spiritual Warriors" out of his followers.  I don't happen to follow Ray's books or teachings, and I can't make any judgments on his character or intentions.  However, I have no doubt in my mind that he bears a significant portion of the responsibility of these completely preventable deaths, as well as the serious injuries to others.

Let me ask you about a scenario:

Imagine you had some folks within the spectrum of your control, looking to you for help and guidance.  After some time, you noticed that several of your guests began to vomit, feel ill, or even collapse from the conditions.  Now, what would your reaction be?  Would you simply say "stay here--you need to push past your physical weaknesses!"? I'm guessing the answer is no.  In fact, I'll go out on a limb and assume that most of us would do anything we could to assist our guests physically and medically.  You would well think that an alleged “guru” like James Ray would know better.  The truth is, he DID know better.  Did he do anything to help?  No.  NOTHING.  Rather, he actually scolded those who wanted to leave his sweat lodge event.   He just ignored these people, and the warning signs.  That is how tragedies occur.  It is called reckless disregard.  In Arizona, both civil and criminal actions can follow. 

Under Arizona law, he had a legal duty to assist and protect these people.  They came to him for his superior knowledge and expertise.  They literally paid him for this.  His recklessness in assessing their fatal situation, and addressing their needs, means that he breached his legal duties to them.  They died.  Arizona law provides:

12-611. Liability

When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to murder in the first or second degree or manslaughter.

12-612. Parties plaintiff; recovery; distribution

1. An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.
   
2. Either parent may maintain the action for the death of a child, and the guardian may maintain the action for the death of the guardian's ward.
   
3. The amount recovered in an action for wrongful death shall be distributed to the parties provided for in subsection A in proportion to their damages, and if recovery is on behalf of the decedent's estate the amount shall be an asset of the estate.
   

The growing amount of evidence in this case is pointing directly to Ray.  These events are unquestionably an example of what we call “wrongful death” in the state of Arizona, and it will be interesting to see how the trial develops over the coming months.

 

 

 

Question: Does AZ Law Protect the Drunk and the Drugged, As Much As It Protects Sober People?

The short answer is yes.  The long, yet undecided answer is, maybe not.

This question popped into my mind after hearing about a drunk man in Phoenix who fell on the Light Rail tracks and was rescued by security officers moments before being struck.

ARS §12-711 states that if proven that an injured person was under the influence and more than 50% at fault for the accident or occurrence, then the jury may deny him/her a total recovery.  The problem is that this statute seems violative of Arizona's law on pure comparative negligence, and therefore, may not be constitutional.

In Arizona, a person's recovery in a civil claim is apportioned by fault. That means, to the extent he/she can prove another at fault, he/she will be able to recover the value of his/her damages, in proportion to the fault of others.  That is called "comparative" fault.

ARS §12-711 attempts to deny these people any recovery, despite the fact that a jury might actually find another to be as much as 49.9% at fault for the injuries or damages.  This is believed by many to violate Arizona's Constitution, which states:

"The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation. (Article 18 § 6)"

To the extent that ARS §12-711 attempts to bar recovery, it may well not stand.

Lastly, the Maricopa County community, like most, are comprised of people who employ a great deal of common sense in their daily lives.  Had this particular drunk been hit by the light rail train, would he have been allowed a recovery in a lawsuit against the City?  Do you need more information perhaps?  What do you think?

Analysis of an Accident: What Claims Can This Victim Make?

During an unconscionable hit-and-run accident in Phoenix recently, an 80 year old man sustained life-threatening injuries after getting off of a bus.  It happened at 6:30 am, just at the crack of dawn.  It appears that the man began crossing the street as soon as he exited the bus.  Many more details have yet to emerge in this case, such as:

 

Was the man was crossing at a crosswalk?  

 

Did he check for traffic before crossing?

 

What were the exact lighting conditions?

 

Was the man wearing light or dark clothing?

 

Was the driver impaired?  

 

Was the driver speeding?  

 

Did the bus driver follow all procedures?  

 

Were there any other obstructions to the sight lines of any of the individuals involved?

 

 

Actually, the ambiguity of this case offers a great example for us to analyze, because incidents of personal injury are often rife with missing or hidden pieces of information.  It is extremely important, therefore, for injury victims to know the legal claims that they have a right to make--even when the responsible party is unknown.  An immediate and thorough investigation is often key in uncovering and locating key witnesses and facts.  Doing that generally requires the guidance of an experienced lawyer.

 

An injury victim--as well as his or her family--should not be deterred when the extent of the circumstances of an incident are not fully known.  Victims and families must already weather a whirlwind of fear, worry, and frustration, and the last thing they need is a growing concern that they are unable to pursue their full rights under the law.  By becoming a little more familiar with their options for legal recourse, and by identifying an experienced personal injury attorney who they can trust, families can focus on what is truly important: the recovery and wellbeing of the victim.

Texting While Driving Laws: What's Best for Arizona?

The bill's dead.  No, wait, it's back alive!  I'm confused...!

 

As I suspect was the case for many fellow Arizonans, I had trouble following the developments of a proposed texting while driving ban in our state legislature.  Early this week, the Arizona State Senate killed a proposed bill that would ban this very dangerous practice.  Then, a day later, the story broke that the bill may not be dead after all.  News stations, websites, and dinner tables were abuzz with the debate over what, if anything, should be done about his inherently dangerous activity.  Does the state have a right to stop us from doing it?  How dangerous could it be, after all?  What would be the punishment?

 

I acknowledge there are a few questions to be answered, but there is one thing I know for certain: the Arizona legislature got this one wrong.  Waaaaay wrong.

 

In fact, it should have been banned long ago, and I feel like our legislature is making a big mistake if it drops the ball on this issue.  There are both logical and legal reasons for this.

 

First of all, I have a hard time believing anyone who says that texting while driving isn't dangerous.  Yes, I consider myself a "multi-tasker" too, but there is only so much I can do with two hands, two eyes, and a flock of unknown strangers driving around me.  And I admit that sometimes there is an irresistible urge to check my messages and emails.  BAD IDEA!  

 

But, if I can text while driving, who's to say that I can't juggle knives while operating my semi tractor trailer?  The opponents to this bill say “too much control” and that there are already laws on the books that cover this.  They cite the reckless driving laws.  Sorry folks---not even close.   From a legal standpoint, the "reckless driving" statute does not cover texting.  Is it "reckless" to text while driving, or perhaps only "negligent”?  If you do not cause an accident, is it reckless or negligent at all?  (The legal definition of “negligence” requires that some damage occur.  No damage, no negligence, and recklessness is a step up the ladder from negligence.)  You see, even by not passing this law, the legal questions and controversies remain.

 

Before I go further, I want to give credit where it's due.  Despite its current wavering, Arizona is actually a leader on the issue of texting while driving.  One of our state legislators was the first in the nation to propose a ban on the practice several years ago.  The city of Phoenix, rightly and thankfully, has already banned the practice in city limits.  Local leaders have already shown the precedent and willingness to tackle this issue.  Now it is time for Arizona’s state legislature to step up.  The current laws do NOT stop or prohibit this practice.  A police officer has little or no right to stop a motorist for this.  However, pass the law, and it gives some teeth to the prohibition. 

 

Last year there was a horrific and deadly train accident in southern California.  Twenty-five people died and hundreds were seriously injured.  An investigation showed that the train engineer had sent a text message 22 SECONDS before the collision.  What do you think he was paying attention to, as opposed to the tracks in front of him?  Yep.  Not rocket science to understand this is a BAD thing. 

 

We can't simply rely on other drivers to be responsible or do what's best.  Driving safely is tough enough when we're sober, focused, and healthy, given the dangers that come our way every day on the road.  What we need to protect ourselves, our family, and our fellow citizens is a statewide law banning texting while driving.  It's overwhelmingly in the best interest of all Arizonans, and I'm sure we can wait an extra 10 minutes to check our email, or the latest Tweet, or, whatever….

Shamu, Fido, and Beyond: How Animal Behavior and Personal Injury Affect the Law

Last week  I read the horrific story about the SeaWorld trainer in Orlando who was killed by Tillimuk, a killer whale, during a routine show in front of a live audience. What made this horrible accident so shocking was how ordinary the circumstances were during the show.  The victim was a seasoned professional who worked with this whale daily.  The show was a routine, likely one of hundreds just like it.  While the exact details of the trainer's death are still coming to light, all it took was a quick, "playful" grab from this massive animal to create an instant tragedy.

Of course, killer whales are wild animals known for, well, their "killer" instinct.  Luckily, most people in Arizona don't interact with killer whales in their backyard (excluding the inflatable kind).

However, it doesn't take a wild creature to cause a serious personal injury.  Animals are part of our everyday lives, especially those that we keep in our home.  I live with two dogs that are incredible to be around, but I started to ponder just how much trust I place in them.  It's quite profound, if you think about it.  Pet owners and their pets share a living space, operate around each others’ schedules, and often communicate.  Is it possible that, like the expert trainer at SeaWorld, we become a little too trusting around animals?  

 

Once a year we have to get our pets their “distemper” shots.  What would happen if we did not?  Remember, they are “domesticated” animals.  That means that through science, breeding, training and medicine, we are now able to live alongside these animals in our homes.  However, if there is any doubt about your yorkie’s ability to turn on you, don’t feed him for a few weeks.  (Not recommended---just trying to make a point here.)

 

A few years ago I had a golden retriever who was the best dog ever.  “Baloo” would not hurt anything.  For a period of time, however, another dog came to stay with us.  Baloo showed some quite different behavior when the visitor decided to stick her head in his food dish!  A reversion to “survival of the fittest” ensued.  Baloo won, but it was still shocking to us that he could exhibit such aggressive behavior. 

This interaction doesn't just involve pet owners, but also their neighbors, friends, and colleagues.  I not only have two dogs, but so do my neighbors.  Whether it is leaving for work or bringing in my groceries, I have learned to "block out" the sound of their barking because I'm used to it.  But what would happen if a neighbor's dog became aggressive and bit me, or worse, a family member?  It could also be a cat, snake, or even a chimpanzee, such as in the infamous story of a Connecticut woman who was mauled by her friend's aging chimp.

When injury happens from animal behavior, such as a bite or other attack, you have rights under the law.  However, in my opinion, it is essential that any victim seek the advice of an experienced personal injury attorney in this area.  (Note:  You do NOT have to retain one, but, sit down with one as soon as possible after the incident to learn and better understand your rights. When assessing a victim's rights in an animal attack case, there are many variables to consider.  For example, did you know that for injuries caused by an animal attack, you may only have one (1) year in Arizona to file a lawsuit to protect your rights, as opposed to two (2) years for most other injury claims?  (A recent potential new client, whose grandson was mauled by a dog, recently found out the answer to that question the hard way.)

Like last week’s unsettling story of Tillimuk, the killer whale, deaths from animal attacks are rare.  But injuries from animals--whether accidental or malicious--occur every day.  This doesn't mean that we should all of a sudden become suspicious of the pets we love or wear steel armor on our walk to the car, but it does mean that we need to be cognizant of the risks than animals pose and aware of the rights we have in the case of an animal attack.  A little bit of knowledge can go a long way. 

 

-The Zachar Law Blogger