In the State of California, all occupants in a motor vehicle are required to wear a seatbelt anytime the vehicle is in motion. Billboards up and down our freeways proclaim “Click It Or Ticket”. The fact is, seatbelts save lives! This is no joke and California legislators in the last few years have passed legislation allowing peace officers not only to cite drivers who fail to wear their seatbelts, but to use one’s failure to wear a seat belt as a basis for a traffic stop in the absence of your committing any other offense.

Notwithstanding the provisions of the Vehicle Code that require use of a seatbelt when operating or riding in a vehicle, your failure to buckle-up could seriously impact, if not limit your right to recovery in a personal injury action if involved in an accident. As a matter of law, one who is negligent in the operation of their vehicle is liable for all damage caused thereby. It is well known that everyone operating a vehicle on our roadways has an obligation to exercise due care so as to avoid causing an unreasonable risk of harm to others. The breach of this duty constitutes negligence. Little known is the fact that everyone operating a vehicle on our roadways or traveling as a passenger in a vehicle on our roadways has a duty to avoid creating an unreasonable risk of harm to themselves. The breach of this duty constitutes comparative fault and could serve as a bar to recovery in a personal injury action.

If you are involved in an accident through no fault of your own and injured, at some point, the question of whether you were belted will undoubtedly come up. This is especially so if the injuries you suffered are ones that could arguably have been prevented had you been wearing your seatbelt. Defense attorneys are sufficiently savvy to know that while their client may have been the legal cause of the accident complained of, they may not have been the legal cause of the injuries claimed by the plaintiff. If the injured party would not have been injured had he or she been wearing a seatbelt, the fact that the accident was the fault of the defendant is of little to no consequence. The injuries suffered were a direct result of the injured party’s failure to wear his or her seatbelt. That being the case, the injured party is precluded from recovering anything for these injuries. This concept is not new however, with a new set of jury instructions recently adopted which more clearly spell out the law in this regard, jurors now have little difficulty grasping this concept and have, of late, been more apt to deny recovery to a plaintiff where it is shown that their injuries resulted from their own negligence in failing to buckle-up.

At EISENBERG LAW GROUP, we encourage everyone to buckle up and drive safely.

Author Bio:
Mark W. Eisenberg of EISENBERG LAW GROUP represents the interests of injured parties and their families in trials of Automobile Accidents, Construction Site Accidents, Dog Bites, Hospital Negligence, Medical Malpractice, Motorcycle Accidents,Nursing Home Negligence, Personal Injury, Spinal Cord Injuries, Trip/Slip & Fall, Trucking “Big Rig” Accidents, Workplace Injuries, Wrongful Death.

You are required as a matter of law in the State of California to maintain liability insurance with limits of no less than $15,000/$30,000 if you are operating your motor vehicle on public roadways. Your failure to maintain liability insurance could not only impact your ability to register your vehicle with the Department of Motor Vehicles, it could subject you to significant monetary fines in the event your are cited for driving without insurance. An additional, little known consequence of driving without liability insurance is that you forgo your right to pursue damages for pain and suffering in the event you are involved in an accident caused by another.

A short time ago, California voters passed Proposition 213. This Proposition had the effect of barring one involved in a motor vehicle accident from asserting a claim for general damages (pain, suffering, emotional distress and loss of quality of life), if that individual was driving without insurance at the time of the accident. Proposition 213 has no effect upon one’s right to assert a claim for special damages (medical expenses, loss of earnings, and property damage).

The consequences of Proposition 213 are significant for anyone involved in a serious accident. If you are driving uninsured and involved in an accident caused by another your right to recovery in a personal injury action will be limited. Perhaps this point is best illustrated by way of example. First, lets consider Deborah, a 23-year old woman who inadvertently allowed her insurance to lapse and who was involved in a head-on collision after the operator of an approaching vehicle lost control and crossed the center median directly into her lane of traffic. Deborah suffered significant injuries including facial lacerations resulting in permanent scarring, a crush injury to her right ankle that required open reduction internal fixation with instrumentation that left her with a permanent limp, and a non-displaced fracture of her right wrist which left her with continuing pain. Proposition 213 allowed Deborah to recover the cost of her medical expenses including the surgeries she required due to the severity of her injuries. Deborah was also permitted to recover the $19,000 in loss of earnings she experienced by virtue of being out of work for 7-months due to her injuries and need for rehabilitation. Deborah was also permitted to recover the cost of repairing her vehicle which sustained significant damage in the accident. Deborah however, was barred from recovering anything for her pain and suffering. She was also barred from recovering anything for the shame she has had to endure due to the facial scarring she was left with. Further, she was barred from recovering anything for the fact that her ankle injury left her unable to partake in many of the activities she enjoyed before (e.g. snow boarding, dancing, surfing, etc.). These claims, in Deborah’s case, had significant value however, the fact that she was uninsured at the time of the accident precluded her recovery.

Next, lets consider Amy, a 31-year old woman who too was involved in a serious motor vehicle accident and who, like Deborah, was uninsured at the time. In Amy’s case, she was stopped at an intersection when rear-ended by another vehicle operated by a distracted driver who failed to recognize that traffic in his lane had stopped. The impact to the rear of Amy’s vehicle was significant. By all accounts, the distracted driver was traveling somewhere between 45-50 mph at the time of impact. When struck, Amy’s body was violently forced up against her seat back. The force of impact however, was so significant that in the process, Amy’s vehicle was pushed forward into the rear of the vehicle before her. This second impact forced Amy’s body forward directly into her steering wheel. Amy’s vehicle was older and did not come equipped with airbags. The injuries sustained by Amy were, but for a whiplash injury, all internal but not initially believed to be significant. They were however, in the opinion of her physicians, sufficiently significant such that they would likely preclude her from having any children in the future. Amy’s medical expenses were covered however, Proposition 213 barred her from recovering anything for her claimed inability to conceive.

If nothing else, these two examples make clear that the consequences of driving without insurance can be significant if involved in an accident. If driving without insurance and you are the cause of an accident, you could be personally liable for all of the damages (general and special) suffered by anyone injured as a result of your negligence. It is therefore imperative that you maintain an active policy of liability insurance anytime you are driving on public roadways.

Author Bio:
Mark W.Eisenberg of EISENBERG LAW GROUP represents the interests of injured parties and their families in trials of Hospital Negligence, Medical Malpractice, Personal Injury, Trip/Slip & Fall, Pharmacy Malpractice, Wrongful Death.

Many who confront the legal system for the first time, voluntarily or
involuntarily, are faced with having to decide the forum in which their
dispute will be resolved. In some instances, the forum in which a
dispute will be resolved has been pre-selected by the parties however,
more often than not, litigants will make their forum selection only
after a dispute has actually arisen. It is therefore important to have
an understanding of the difference between mediation, arbitration and
trial and the benefits and drawbacks of each. Often times, the forum
selected will dictate how quickly and effectively the dispute is
resolved.

Mediation is a voluntary process wherein two or more parties to a dispute
try to resolve their differences with the assistance of a neutral, disinterested
third party such as an attorney or retired judge. In most instances, the cost
of the mediator is shared equally however, this is not always the case, especially where one party has an interest in seeing the matter resolve and offers to pay for the mediation in order to entice the other party to attend and partake. These days, there are numerous private mediation centers including, but not limited to, at least in the Southern California area, AAA, JAMS, Judicate West, and IVAMS. The cost of retaining a mediator to assist in resolving your dispute will vary depending on such factors as the experience level of the mediator, how busy he or she may be, the nature of your dispute, the complexity of the issues presented, and the number of involved parties. Most private mediation centers bill for their mediator’s time on an hourly basis however, others bill a flat fee for a half or full day.

Mediation is not, like arbitration or trial, adversarial in nature. As
such, parties to a dispute can mediate their differences without
counsel. Anything said during mediation is inadmissible in court. Thus,
it is not uncommon to see parties who partake in a mediation sitting
together in a conference room and, with the assistance of the mediator,
working toward identifying the contested issues and then brain storming
to resolve them. Mediation is a give and take process where there is no
declared winner and no declared loser. For mediation to be successful,
each side must give up something. Mediation is non-binding unless the
parties agree to be bound by whatever result is achieved. Mediation is
favored and recommended in cases involving neighborly disputes, family
disputes, or where parties to a lawsuit involving a claim for monetary
damages believe that with the intervention of a neutral third party, a
settlement can be achieved. Mediation is often the easiest and most
cost effective way to resolve disputes. The major drawback to mediation
is that if no resolution is achieved, the other side will, by virtue of
your disclosures in mediation, have a better feel for what theories or
claims (and strengths and weaknesses thereof) you might proffer in
litigation.

Arbitration differs little from a bench trial (a trial in which the judge serves
as trier of fact as opposed to a jury fulfilling that role). Arbitration
may be binding or non-binding. Binding arbitration is usually by
agreement of the parties with each expressing, in a writing, a
willingness and commitment to be bound by whatever decision the
arbitrator may reach. Non-binding arbitration affords the losing party
the opportunity to seek a trial de novo (a trial on the merits without
regard to the arbitrator’s findings) however, there are often penalties
imposed on the party requesting the trial de novo if he or she does not
achieve a better result in trial than achieved in arbitration. Private
organizations like AAA, JAMS, Judicate West, and IVAMS similarly offer
arbitration services. The cost is similarly based on an hourly rate or
half or full-day basis.

In advance of arbitration, with all sides usually represented by
counsel because arbitration is an adversarial proceeding, the
arbitrator will be provided briefs detailing the positions, arguments
and demands of each side. The rules of evidence in arbitration
proceedings are quite liberal. As such, documents and other writings
that might be excluded from evidence in a trial will be received and
considered in arbitration. Arbitration will proceed in whatever fashion
the parties desire. This may mean evidence is introduced through the
admission of exhibits and by way of live or recorded testimony or
simply by way of offer of proof (usually an attorney explaining what
the evidence is). The proceeding is much more formal that a mediation
and, as above, is adversarial in nature. Once all the evidence is
received, the arbitrator will usually take the matter under submission
and render an opinion and/or issue an award shortly thereafter. This
opinion or award is final and may only, under very limited
circumstances, be challenged or appealed.

Arbitration proceedings are usually considerably shorter than a trial
and will often be less expensive though that is not always the case.
The major drawback to arbitration is that you have trusted the outcome
of your case to a single trier of fact giving up your right to a jury.
This may be fine in some cases however, where passion and prejudice may
play a role in how the case is decided, it may be advantageous to you,
depending on which side of the case you are on, to try the case to a
jury of twelve.

Trial is what we most frequently see on TV. It is the subject of
virtually every hit crime drama of our time from “LA Law” to “Boston
Legal” to “Law & Order”. In the absence of a plea agreement, trial
is where virtually all criminal cases are adjudicated. In the civil
arena, trials are less frequent. In fact, most, upward of 90%-95% of
all litigated civil disputes settle in advance of trial. Trial is risky
as there is no way to tell what a jury (should you chose to proceed by
way of jury trial) will do with a case. Simple things such as demeanor,
appearance, accent, etc. can have a dramatic effect on how a jury views
a case. If there is anything certain about a jury trial, it is the
uncertainty of the outcome. For that reason, at EISENBERG LAW GROUP we
work hard to resolve disputes before trial. This is not to suggest that
we at EISENBERG LAW GROUP avoid or shy away from trial. Quite the
opposite! Messrs. Day and Eisenberg have over 30-years combined trial
experience and a fabulously successful track record for favorable
outcomes. Trials however, are expensive and carry with them not only
the uncertainly referenced, but the risk of appeal which, at present,
can tie a matter up for 2 ½ years. In addition, trials can be long and
drawn out. Many judges only hold trial 3-days a week which means a
5-day trial with jury selection and deliberation can last 2-weeks or
more. For these reasons, we at EISENBERG LAW GROUP consider use of all
available forums for resolving your dispute placing your interests
above all else.

Author Bio:
Hospital Negligence, Nursing Home Negligence, Personal Injury, Spinal Cord Injuries, Trip/Slip & Fall, Workplace Injuries.

In California, like most states, you are required to carry liability
insurance on your vehicle if you plan on operating it on public
thoroughfares. At present, the minimum liability coverage permitted by
law is $15,000/$30,000. The $15,000 figure is a per injured party sum
while the $30,000 figure is an aggregate sum meant to provide coverage
to two or more injured persons. Liability insurance is available in
higher amounts such as $30,000/$60,000, $100,000/$300,000 and
$250,000/$500,000. The cost of increasing your limits from
$100,000/$300,000 to $250,000/$500,000, for example, is relatively
slight compared with the added protection it affords you in the event
of a loss. This is especially true given the skyrocketing cost of
health care.

Liability insurance is coverage you are required to obtain to protect
others on the road from any act of negligence by you. It DOES NOT
afford you, as the operator of the vehicle, any coverage whatsoever in
the event you are at fault for the accident in which you are injured.
Only medical payments coverage (often available in limits of $1000 and
$5000) will provide you protection in the event your injuries stem from
your own negligence. What happens however, if you are not at fault for
an accident in which you are injured, perhaps seriously, and the
responsible party is either uninsured or under-insured? The answer is
simple, hope and pray you have enough UM/UIM coverage.

Most never appreciate the significance of UM/UIM coverage, the benefits
it affords them or the import of maintaining high UM/UIM limits until
after becoming involved in an accident. Why is it you would feel
compelled to carry liability coverage with $250,000/$500,000 limits to
protect others, yet feel it appropriate to maintain UM/UIM limits of
only $15,000/$30,000 to protect yourself? While high liability limits
may insure that your personal assets are sufficiently protected in the
event you are at fault in injuring another in an accident, what happens
to your assets when you are seriously injured as a result of an
uninsured or under-insured driver’s negligence and either do not have
health insurance, have insufficient health insurance, and no long-term
care coverage? Stated simply, your assets are exposed!

If you are injured as a result of the actions of an uninsured or
under-insured driver, your UM/UIM coverage will cover you. In instances
where the at-fault driver was uninsured, your UM coverage kicks in
immediately. In instances where the at-fault driver was under-insured
(with liability coverage insufficient to compensate you for your
injuries), your UIM coverage kicks in after his payment of policy
limits and only to the extent your UIM limits exceed his liability
limits. For example, if the under-insured at-fault driver maintained a
policy of insurance with $15,000/$30,000 in liability coverage and your
injuries had a value of $100,000, undoubtedly, his carrier would tender
his policy limits to you. If you have UIM coverage with limits of
$100,000/$300,000, the $15,000 you received from the at-fault
under-insured driver is deducted from the $100,000 leaving you $85,000
in UIM coverage; an amount sufficient, with the $15,000 already
received, to fully compensate you for your injuries. If however, you
have UIM coverage with limits of $15,000/$30,000 and already received
$15,000 from the at-fault uninsured driver, YOU HAVE NO UIM coverage
available.

The example in the preceding paragraph illustrates the importance of
maintaining high UM/UIM limits. Often times, we see accident victims
who have only catastrophic health insurance policies (policies with
huge deductibles) or policies with benefit limitations. Rarely do we
see accident victims who had the foresight to secure long-term care
coverage. The absence of healthcare insurance, insurance limitations
and no long-term care coverage could prove financially disastrous to
anyone with insufficient levels of UM/UIM coverage.

At EISENBERG LAW GROUP, we advise all our clients to maintain the
highest level of UM/UIM coverage possible. The cost of UM/UIM coverage
is considerably less than liability insurance but as important, if not
more important, to you. We would encourage you to review your
automobile policies to determine your UM/UIM coverage and increase your
limits if you believe them too low. We would also encourage you to
obtain and/or increase you med-pay coverage as well. Like UM/UIM
coverage, med-pay coverage is considerably less costly than other forms
of coverage available to you. Finally, to the extent you are a
homeowner and/or financially able, we would encourage you to maintain a
liability umbrella (especially if you have young driver’s in your
family operating vehicles on your policy), to protect your home and
other assets in the event of an at-fault loss.

EISENBERG LAW GROUP is not an insurance agency, insurance broker or
insurance company and does not offer insurance advice. Please consult
your insurance specialist for advice on all your insurance needs and
any concerns you may have with any policies of insurance you maintain
at this time.

Author Bio:
Mark W. Eisenberg of EISENBERG LAW GROUP represents the interests of injured parties and their families in trials of Automobile Accidents, Hospital Negligence, Motorcycle Accidents,Trucking “Big Rig” Accidents,Spinal Cord Injuries.

Unlike other types of injury cases, one claiming to have been seriously
injured as a result of a healthcare provider’s negligence will rarely
receive full compensation for their injury. This is because California,
long before President Bush’s call for nationwide tort reform in the
area of medical malpractice, enacted legislation limiting your recovery
against medical providers.

California’s Medical Injury Compensation Reform Act or “MICRA” was
enacted in 1975 by the California Legislature in an effort to control
skyrocketing medical malpractice insurance premiums. MICRA’s
provisions, found at various sections of the Civil Code, Code of Civil
Procedure and Business Professions Code, was the Legislature’s
most ambitious tort reform measure of its time. While purportedly
designed to make healthcare more readily available and affordable, the
effect of this legislation over time has not only been to deprive
Californians quality medical care, but to deny them fair recovery in
the event of malpractice.

Perhaps the most significant provision of MICRA is Code of Civil Procedure
section 3333.2 which limits awards of pain and suffering in medical
malpractice actions to $250,000. Over the last decade there has been
considerable debate about this limitation in that it was established more
than 30-years ago and has never once been increased. When adjusted
for inflation, this $250,000 would equal roughly $864,000 today, however,
MICRA, when enacted, did not contain any provisions that allowed for
increases of the $250,000 cap to account for inflation. It would take
therefore take legislative action and approval by our governor before
this limitation were raised.

Many clients at EISENBERG LAW GROUP have been victims of
medical malpracticeand, as a result, have been rendered quadriplegics,
paraplegics, or otherwise left wheelchair bound and/or brain injured.
Notwithstanding the nature and extent of their injuries and the
dramatic effect their injuries have had upon their lives and the lives
of their loved ones (often responsible for their day-to-day care),
their recovery for pain and suffering has been limited by law to
$250,000. There is no limitation in California on the recovery of
special damages (e.g. medical expenses, loss of earnings, etc.) in a
medical malpractice action however, MICRA does permit a medical
provider, in the event of an adverse judgment, to make periodic
payments on any monetary award over $50,000. [Code of Civil Procedure
section 667.7.] Naturally, this can result in a delay in compensation
to the patient victim.

At EISENBERG LAW GROUP we not only work to achieve the best results and
largest recovery for our malpractice clients, we also employ experts in
rehabilitation, life care planning, economics and structured
settlements to insure that their settlements and awards, even in the
face of legislatively mandated recovery limitations, are sufficient to
provide for their medical needs into the future.

Mark W. Eisenberg of EISENBERG LAW GROUP represents the interests of injured parties and their families in trials of Automobile Motorcycle Trucking Accidents, Medical Malpractice, Nursing Home Negligence, Personal Injury, Pharmacy Malpractice, Premises Liability.