Zachar Law Blog

When is the right time to settle your personal injury case?

The right time is whatever is right for you.  You may retain an attorney to handle your case but the attorney is first and foremost an advisor.  An attorney cannot accept or reject offers to settle your case, as you alone are the decision maker on whether to settle your case.  A competent attorney will provide you with the risks and benefits of settling and will provide you with his or her recommendations.  In the end, the decision to settle always is the client’s. 

Settlement is a bilateral (or multilateral) transaction.  In other words, both (or more if there is more than one at-fault party) parties (you and the at-fault person or entity) must agree to a resolution for a settlement to occur. 

Settlement can happen before litigation (i.e. before filing a lawsuit), during litigation, and even after a verdict has been rendered by an arbitrator or jury.  When to settle is based on a slew of factors:  (1) the value to the client; (2) the market value of the claim (i.e. what it may be valued to an arbitrator or jury); and/or (3) the value to the person having to pay you. 

The value to the client (you) is dependent upon a number of additional factors including:

(1) whether you believe the value is fair (i.e. adequately compensates you); (2) and whether you have the time and financial resources to litigate the case and wait for a recovery you believe adequately compensates you for your loss.  There are risks and benefits to settling a case earlier on as well as after litigation or even choosing to not settle at all.

The dangers of Arizona's highways, what can we do about it?

While traveling on Interstate 17 for a landscaping job, one of Hugh Pressman’s trailer axles broke after hitting a pothole on the freeway.

Pressman, the owner of Kaibab Landscaping, commutes into Flagstaff from Munds Park and dispatches members of his team throughout the region for projects. Lately, Pressman said, he fears for his employees’ safety when traveling to job sites because of rough conditions on the interstates. 

“The road conditions are dire,” Pressman said of interstates 40 and 17. “Those roads are extremely dangerous and covered in potholes.”

CONDITIONS

Deferred maintenance on freeways in northern Arizona has contributed to rough conditions on some of the most heavily used infrastructure, said Mark Woodson, the owner of Woodson Engineering.

Regular maintenance can keep roads functioning longer and help prevent more costly projects when roads deteriorate too much, he said.

“We’ve gone beyond that point,” Woodson said. “We already have to spend more on maintenance than we would if the roads had been maintained regularly.”  The Arizona Department of Transportation, which has jurisdiction over both interstates as well as some roads within the city, must “prioritize maintenance and construction projects because there is only so much funding available at one time,” ADOT spokesman Ryan Harding said in an email.

The biggest problem today is the financing mechanism for roads. The engineering solution is the easy part. We know how to fix it and we know how to maintain it, but we are not given the money to do it.

But, the cost is the State’s problem.  The fact is that potholes and other road hazards have presented a danger on the highways.  Delay is not acceptable.

There are safety issues from just plain hitting a pothole, and between Flagstaff and Williams, people drive in the left hand lane instead of the right lane and makes passing less safe. Woodson says “I’ve seen trailers flip and truckers repairing tires on the side.”

Woodson served as president of the American Society of Civil Engineers, which issues a report card for infrastructure nationwide and at the state level. The most recent report card for Arizona was issued in 2015, and rated roads throughout the state at a “D plus” level.  Motor vehicle crashes cost Arizona $4 billion per year, $833 for each resident, in medical costs, lost productivity, travel delays, workplace costs, insurance costs and legal costs.  The report also states that roadway conditions contribute to about one-third of traffic fatalities.

There were 849 traffic fatalities in 2013 in Arizona. A total of 4,068 people died on Arizona’s highways from 2009 through 2013.

A FLAGSTAFF PROBLEM

“I-17 and I-40 are critical for the health and well-being of our city,” Flagstaff Mayor Coral Evans said. “The bulk of rural Arizona depends on goods, services and people travelling along the I-17 and I-40 corridors.”  The city council hosted the ADOT board over the summer to discuss issues for the Flagstaff area, and Evans said the city, and other cities that depend on the freeways, to have people at the capital when the budget is being crafted to advocate for more funding.

The city does not have jurisdiction over ADOT-controlled freeways, but Copley said the city considers ADOT a “good partner and collaborator.”

Copley said the freeze-thaw cycles of the Flagstaff area create more road problems than in areas where it does not freeze as often.

“As you’re experiencing a change in altitude, you will see a distinct difference in the road conditions,” Copley said.

Potholes on the freeways can grow exponentially within a few days, Copley said, especially when water freezes inside overnight and thaws during the day.

At the most recent meeting with the department’s board, Copley said he and the city council wanted to focus on the Fourth Street bridges, which need to be widened and lengthened. The city is funding part of the improvements to the bridge.

But Copley said he would like to see more capital improvements from ADOT in the Flagstaff area, and said he and his staff will “continue to bring local concerns” before department representatives and leadership.

The department’s 2018 through 2022 5-year plan, which is still in the review period, does not include capital improvements solely in Coconino County, but does include widening I-17 between Stoneman Lake to Rocky Park road, which is mostly in Yavapai County but extends into Coconino. However, maintenance for existing infrastructure is not listed in the plan.

FUNDING

ADOT does not break down funding allocations by county, and instead uses districts specific to the department. Flagstaff is part of the Northcentral district, which includes most of Coconino County and parts of Yavapai, Mohave and Navajo counties.

For the last six years, the Northcentral district has received the second highest allotment for maintenance, second to the Central district that includes the greater Phoenix area. In the 2017 fiscal year, the department allotted $12.8 million to maintenance in the Northcentral district, which Harding said includes “roadway maintenance… repairs to fencing and guardrail, as well as snow removal, emergency responses to crashes or natural disasters such as highway flooding, vehicle maintenance and even worker training costs.”

The American Society of Civil Engineers, Woodson’s organization, advocates for a higher tax on gasoline to fund road repair and maintenance, he said.

Evans said she would like the state to consider increasing the gas tax, or look at a transportation tax that could fund projects and maintenance.

“If you aren’t allocating funds for transportation solutions the roads are only going to get worse,” she said. “As long as we are afraid to talk about raising the gas tax, the repairs are not going to get done.”

WHAT IS THE LAW ON THIS SUBJECT?

Generally, if there are issues that the State is not addressing, and an accident occurs, the State may be liable for the dangerous roadway.

These are difficult and complicated cases, because the State has the benefit of some legal immunities that no one else gets.

Not enough money to fix—is that really a defense to one of these?  The truth is, it may be.

If you or a loved one is a victim of a dangerous roadway case, call us.  We have been handling these cases for many years and have had great success against the State and the Highway Department.

HALLOWEEN SAFETY TIPS FOR 2019

Updated: 10/29/19

Every year, Halloween calls for our neighborhood streets to be filled with ghouls and goblins in search for a trick or treat. What a fun night for our neighborhoods—I have very fond memories of my trick or treat days.

However, with so many more people on the streets, it’s always important to take a few extra safety precautions.

The concept of “darkness” adds to the thrill of Halloween.  It happens at night, dark streets, dark clothing, etc… . 

Wearing masks can obscure a person’s ability to see what is already harder to see because of the “darkness” thing.

Below are a few tips that everyone can follow on Halloween night:

• Cross the street at corners, using traffic signals and crosswalks;
• Look left, right and left again when crossing and keep looking as you cross;
• Put electronic devices down and keep heads up and walk, don’t run, across the street;
• Teach children to make eye contact with drivers before crossing in front of them;
• Always walk on sidewalks or paths. If there are no sidewalks, walk facing traffic as far to the left as possible.  Children should walk on direct routes with the fewest street crossings;
• Watch for cars that are turning or backing up;
• Never dart out into the street or cross between parked cars; and
• Carry a flashlight and use it when you are crossing the street (you can turn it off when you walk up to a door for treats).

Children should always trick or treat with an adult.  Never alone!

If kids are mature enough to be out without supervision, they should stick to familiar areas that are well lit and trick-or-treat in groups.

Keep your costumes safe!

 Decorate costumes and bags with reflective tape or stickers and if possible, choose light colors;

Choose face paint and makeup whenever possible instead of masks, which can obstruct a child’s vision;

Have kids carry glow sticks or flashlights to help them see and be seen by drivers; and 

When selecting a costume, make sure it is the right size to prevent trips and falls. 

Drive Extra Safely on Halloween!

•         Slow down and be especially alert in residential neighborhoods. Children are excited on Halloween and may move in unpredictable ways.
•        Take extra time to look for kids at intersections, on medians and near curbs.
•         Enter and exit driveways and alleys slowly and carefully.
•         Eliminate any distractions (i.e. cell phone) inside your car so you can concentrate on the road and your surroundings.
•        Drive slowly, anticipate heavy pedestrian traffic and turn your headlights on earlier in the day to spot children from greater distances.
•        Popular trick-or-treating hours are 5:30 p.m. to 9:30 p.m. so be especially alert for kids during those hours.

 

EVERYONE, HAVE A SAFE AND FUN HALLOWEEN!!!

What are the downsides of not talking to a lawyer after your injury?

You have probably heard the old phrase “the person that represents himself has a fool for a client.”  Most people would prefer to go their entire lives without having to talk with an attorney, let alone hiring one.  However, speaking with an attorney as soon as possible (in nearly every situation) is often the best and wisest choice you may ever make.

Sooner is better than later when hiring an attorney.  This will prevent any potential issues or pitfalls that can occur when you speak to an adjuster for the at-fault person’s insurance company.  While hiring an attorney will cost you money and therefore decrease the net gain you may receive from a settlement or recovery, an attorney will often enable you to receive a better recovery. 

In addition, there are more issues involved then just recovering money through settlement.  Medical providers and your own health insurance carrier may have an enforceable lien against your settlement proceeds of which you may not be aware.  If you fail to pay these liens you may end up in litigation or collections for failing to pay these potential lienholders, even if you were unaware of their claims.  In addition, there may be more sources of recovery than you realize.  An attorney will explore all available options and resources for recovery that on your own you would not have known.

Finally, if an offer to settle is unacceptable, and you are unable to resolve the claim, the only option or solution is to file a lawsuit, which most people do not know how or have the ability to do.  A competent attorney that prioritizes your rights, will protect and serve your best interests, even if that means having to go to court.

When Can you Legally and Safely Enter a Crosswalk?

There is some confusion about the use of crosswalks on the Arizona roadways.                                                     

Crosswalks are known as the area reserved for pedestrians to safely cross the roadway. We are told from the time we are young that when using a crosswalk, cars must stop for us, because we have right of way.  As parents, we stress to our kids to use crosswalks.  "You'll be safe there---cars have to stop for you", we say.  

But is this the right information? 

Stated simply, no.

It is true that crosswalks are put in place as safe pedestrian cross zones.  But, that does not make then immediately “safe zones” and crosswalks do not give pedestrians the right of way.

If a crosswalk is present, use it. 

However, you must always pay attention to the traffic.  A crosswalk is not a force field.  You cannot assume drivers will know it is there, or will see you just because you are in a crosswalk.

In fact, if traffic is flowing, the cars have the right of way, not you (whether in a crosswalk or not).

So, when traffic stops:

1. Look both ways;
2. Only cross when traffic is clear or when you have a “Walk” signal;
3. Do not dilly-dally:  Move across the street safely and purposely;
4. If the “Don’t walk” signal shows, do not start to cross; and
5. While crossing, always still pay attention to traffic.

Remember:  In a Car v. Pedestrian accident, the pedestrian always loses!

The insurance company is offering to settle my case but I’m not sure if their offer is reasonable. How do I know?

Whether an offer is reasonable or not depends on many factors, including your own subjective opinion on what you determined to be the value of your personal injury case.  While your opinion on the value of your own claim is not solely determinative, only you (and not your attorney) has the authority to accept or reject an offer. 

However, the best indicator of the value of a case is what eight random people believe is the value of your case.  A civil jury case is typically comprised of eight random individuals that live in the same county in which you would litigate your case. 

Though your case will likely never be litigated before a jury (as many cases settle or are arbitrated before that occurs), the value of any settlement is most often determined by how eight random people would decide your claim.

To determine the value, you should first know what facts and legal standards a jury would be required to consider in deciding your case.  In Arizona, accident victims are legally entitled to claim the following damages:  (1) nature, extent and duration of any injury caused by the person at fault; (2) pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced and reasonably probable to be experienced in the future as a result of the injury; (3) reasonable expenses of necessary medical care, treatment and services rendered and reasonably probable to be incurred in the future;

(4) lost earnings and any decrease in earning power or capacity in the future; (5) loss of enjoyment of life, participation in life’s activities to the quality and extent normally enjoyed before the injury and in some more extreme injury cases, (6) the loss of the love, care and affection and other pleasures of a marital relationship affected by the injuries.  Injuries that existed prior to the claim, while not compensable, may be compensable to the extent such injuries were aggravated or made worse by the incident that is the subject of the claim. 

It is your burden to prove these injuries and eight random people may agree with none, some or all, and compensate you accordingly.  This is the standard by which you must measure your claim and its value in order to determine whether an offer is reasonable. 

Thus, you should ask yourself the following: (1) Does the offer to compromise my claim consider each of these types of damages of which I may be entitled?; and (2) Can I prove each of these claims (i.e. is it more probable than not that I should be entitled to be compensated for some or all of these types of damages based on the evidence of my case?).

Once you reason through this process, you can determine a range of probable values to determine whether the offer is reasonable.  For example, you may reason that on your best day in court you will get $10,000 while on your worst day in court you might get nothing.  You should then base a value, not on your best and worst days (both of which are possible), but on what you think would be probable (more likely than not).  Then you should consider the cost of litigation. 

While settlements are usually looked upon positively, a settlement means you are willing take something less than what you want; hence the word “settle.”  The cost of litigation is inevitable if you cannot resolve your case through settlement.  This usually takes the form of increased attorney fees (many firms increase their fee percentage if the firm must file a lawsuit), and increased costs such as filing fees, deposition fees, which will be paid by the client at the resolution of the case (by settlement or verdict). 

Thus, settling for $10,000 today may be equal to or more than a verdict for a greater amount from a jury a year from now.  While you may get $15,000 by verdict, the amount of fees and costs may offset the net amount you ultimately receive.  This also does not account for the time cost or potential risks of trial.  A settlement will alleviate your continued participation, including your need to answer discovery requests, attend a deposition, attend a medical exam, and attend a several day trial. 

In addition, litigation takes months and sometimes years after filing your case with a court.  Time is a subjective factor that should and often does play a role in whether a settlement offer is reasonable or not.

Outside extreme offers to settle, determining whether a settlement offer is reasonable is dependent upon the specific facts of your case as well as your own subjective feelings and concerns about the case and litigation.

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After the insurance company and my attorney agree upon settlement, how long will it take to get my money?

What should you expect now that your bodily injury case has settled?  Expect to wait at least thirty (30) days before you receive payment from a settlement. 

The insurance company for the defendant/at-fault driver will draft a formal settlement agreement and release following a verbal agreement or by letter or email.  A verbal agreement to settle does not constitute a binding settlement as all settlements to be binding must be in writing.  Usually this occurs within the same day as a verbal agreement, as the parties typically email (writing) confirmation of what they agreed to orally.

The formal settlement and release will be sent to your attorney by letter (or email), sometimes with a settlement check, but usually without payment.  The client will then need to sign the release (often in front of a notary).  Once the release is returned to the insurance company, its accounting department will be notified to issue a check which takes 2-3 days. 

The check will be issued in your name and in the name of your attorney’s law firm.  It issued in this manner because the insurers understand that the law firm must pay all lienholders, costs and fees before distributing payment to the client. 

Once payment arrives, the law firm must deposit it into their trust account (an account law firms are required to maintain on behalf of their clients).  The firm cannot issue payment until the check clears.  The State Bar of Arizona recommends law firms wait at least ten (10 days) before issuing payment to clients.

Once the check clears, the client will be issued payment.  While this process may be shorter or longer depending on the insurance company and its accounting and legal departments, the process of issuing payment to the client typically takes at least thirty (30) days from the initial settlement. 

How important is it to have an attorney that has shown a history of success in similar cases such as my personal injury case?

The success or failure of your attorney in prior cases while important in choosing your attorney should not be the primary determinate in choosing to retain the attorney. 

Because “success” is a relative term, what one client sees as a success another client may consider a failure.  In addition, success or failure is most often determined by the facts of the case rather than the attorney handling the case. 

Most attorneys have success and failures in their careers and rarely would an attorney have a history of only one or the other.  Good lawyers sometimes accept and take on difficult high risk cases while other lawyers only take easier low-risk cases. 

A doctor may say that he never had a patient die.  While true, one should view the doctor’s statement in context.  If the doctor is a podiatrist (foot doctor), then the statement while true, is meaningless. Very few cardiothoracic surgeons can truly make the same statement. 

While past success rates are a helpful indicator in whether an attorney will be successful it should not be the only factor a prospective client should rely upon in choosing an attorney.

Instead, clients should choose their attorneys using a number of indicators that include (including past success):  (1) informing me of my options, including the risks and benefits of my case; (2) does he/she have litigation (trial) experience; (3) is he/she interested in telling me the truth, whether good or bad, rather than telling me what I want to hear so that I hire him/her; (4) were prior clients happy with him/her; (5) are his/her fees reasonable in light of the type of case it is; (6) do I feel comfortable talking with him/her on the phone and does the attorney appear to have my best interests in mind.