Answers to Frequently Asked Questions About Workers' Comp & Personal Injury Litigation
If you were hurt in a personal injury or workplace accident, you probably have a number of questions about your rights and legal options. Fortunately, Attorney Mark Blane has answers. Browse answers to FAQs here.
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TIME FRAMES: When can a California lawsuit for wrongful death be brought forward?
As with any civil lawsuit for negligence (personal injury), there is a two-year period of limitation on a lawsuit for wrongful death under California law. The wrongful death lawsuit must be brought within two years of the death of the injured person.
Time Frame Examples for Wrongful Death Action in California:
For example, if a wife is severely injured in an auto accident in San Diego, California on January 1, 2011, she must bring a lawsuit to recover for her own injuries by January 1, 2013. If the husband dies because of his injuries due to the negligence of another person or entity in San Diego, California on February 1, 2011, the wife must bring a lawsuit to recover for wrongful death by February 1, 2013.
LEGAL DAMAGES: What exactly is loss of love, companionship, society, comfort, protection, care and consortium in relation to a California wrongful death action?
Legal damages that fall into this category for a California wrongful death action are intended to compensate the survivor(s) for the intangible benefits of human interaction. This category often makes up the largest portion of the claim, and the biggest difficulty with this particular area of legal damages is that the value of this item of loss is so difficult to measure and argue to a jury or claims adjuster. In determining the amount of these intangible legal damages, there are several items that need to be taken into consideration, including following aspects:
1. the closeness of the relationship involved,
2. the age and health of the survivor, and
3. the life expectancy of the decedent (the person who died as a result of the injury).
LEGAL DAMAGES: What is loss of services in connection with a California wrongful death lawsuit?
Legal damages that fall into this category are intended to compensate the survivor for the intangible benefits of human interaction. This category often makes up the largest portion of the claim; however, the largest difficulty with this particular area of legal damages is that the value of this item of loss is so difficult to measure. In so doing, arguing it to a claims adjuster or jury proves to be, at times, difficult. In determining the amount of these damages, several items are taken into consideration, including the following aspects: the closeness of the relationship involved, the age and health of the survivor, and the life expectancy of the decedent.
LEGAL DAMAGES: What is loss of training and advice in connection with a California wrongful death legal action?
This is where the survivor would have received training and advice from the decedent, the survivor can recover the value of the loss at trial or at a pre-trial settlement. This legal damage is allowable under California law, and must be pled precisely.
A common example of damages in this legal category is the advice, training and moral support that children receive from their parents. If a child's parent is fatally injured by a negligent person due to an accident or the like, the child will lose out on that valuable parental advice, training and moral support each day. The child is entitled to recover damages for these losses as a direct result of the negligent action.
LEGAL DAMAGES: What should I know about funeral and burial expenses in connection with a California wrongful death lawsuit?
What you should know is reasonable funeral and burial expenses incurred by a survivor may be recovered in a California lawsuit for wrongful death. These costs and expenses must be considered reasonable before they are recoverable in a lawsuit or claim for damages. Many times, they will be considered reasonable if they are paid as a result of the death. Sometimes, the California court will look to the condition of the decedent's estate at the time the funeral expenses were incurred to determine this reasonableness standard. If their estate is large, a larger funeral expense might be more reasonable; if their estate is small, a smaller funeral expense might be more reasonable. This is how the costs and expenses for the funeral is balanced to come up with a dollar value for compensation under California law.
LEGAL DAMAGES: Generally speaking, what items cannot be recovered in a California wrongful death lawsuit?
A California lawsuit for wrongful death is intended to compensate the survivor(s) for their own losses (the intangible benefits of human interaction and how that is now lost due to the wrongful death), and not for the losses incurred by the decedent prior to death. To this legal end, a survivor cannot recover legally for the following items:
- 1. Any pain, suffering, or anguish experienced by the decedent prior to death from the negligent accident;
- 2. Any medical expenses or other expenditures, incurred by the decedent prior to death;
LEGAL DAMAGES: What do I need to know about a survivor's mental suffering in connection with a California wrongful death lawsuit?
Generally speaking, a qualified survivor may not recover for their own grief, sorrow, anguish, mental suffering, or emotions over the loss of their loved one in a California wrongful death lawsuit. Although these items are excluded from consideration in wrongful death claims, as a practical matter, these losses are often included as part of the loss of love, comfort, and companionship that is an allowable element of damages. Please see my FAQ that discusses the loss of love, etc.
ONE EXCEPTION TO ABOVE RULE: The only way mental suffering would be recoverable for the survivor under California law, is if the survivor was a witness to the fatal injuries of a close relative and thereby suffers what is called emotional distress. This type of legal claim is known as Negligent Infliction of Emotional Distress under California law and it entails a deeper analysis.
LEGAL DAMAGES: Is it possible to recover life expectancy damages on the person who was killed as the result of the negligence of another person or entity under California law?
Yes, under California law, life expectancy damages are recoverable for the period where the survivor and the decedent would have been alive together. However, this legal damages must be limited to the life expectancy of the survivor or the decedent, depending on which is shorter.
If a wife is fatally injured in a California car accident, and the husband sues to recover damages in a wrongful death lawsuit as a result of the accident, his legal recovery for life expectancy damages will be limited to the amount of time he and his wife would otherwise have been alive together. Say, for example, he was expected to live another 20 years, and his wife was expected to have lived another 30 years, he can only recover damages for the 20 years of his life expectancy where they would otherwise have been alive together (since his life expectancy is shorter).
A better example is mother or father versus son or daughter - lets say dad was 75 years old, and the son was 50 years old and he was killed in a wrongful death type accident; and there is only 10 years of life expectancy for the dad. Therefore, only 10 years of damages would be allowable as it is shorter than the life expectancy of the 50 year-old son who died.
WRONGFUL DEATH DAMAGES: What is the earning capacity of the decedent , and why is it important in a California wrongful death lawsuit?
This is simply another consideration in determining the amount of wrongful death damages in California. The earning capacity damages of the decedent is the amount of lost support and financial contributions from a decedent to the survivor (family members, etc.).
The determination of exactly how much will be recoverable for these legal damages can be based on factors such as the decedent's earning capacity (what he or she did for a living, how much he or she earned). In short, the amount that the decedent could have earned or contributed over their lifetime will be calculated and then reduced in value to today's dollars - this is known as present value. A forensic financial expert needs to be retained to come up with this value to present a dollar amount before or during a jury trial.
WRONGFUL DEATH DAMAGES: Why is the relationship between survivor(s) and the decedent important in a California wrongful death lawsuit?
It is important for several reasons. It is considered one other consideration affecting the recovery of legal damages in a wrongful death claim under California law. The claim for this involves introducing evidence of the nature of the relationship between the survivor and the decedent.
For example, the closer the relationship, the more the legal damages are presumed to be under California law. This can be shown by:
1. the frequency of interaction between the claimant and the decedent;
2. and the quality of their interaction: here are some examples to consider: were there joint vacations, holidays, birthdays, etc. Photographs showing holidays, birthdays; were there home movies evidencing the quality of the their interaction, letters, birthday cards or the like? Mother's day and Father's day cards are also important in assessing the closeness of the lost relationship.
All of this can be introduced as evidence under California law.
FEDERAL ACT: What is the Family Medical Leave Act (FMLA)?
This is a law that provides benefits to an employee with a serious health condition. It is very important that an employer understand the Family Medical Leave Act (FMLA.) An employer who has 50 or more employees is subject to this Federal Act. To be an eligible employee, one must have worked for the employer for at least one year or over 1250 hours. FMLA entitles an employee up to a total of 12 weeks of unpaid leave during any 12-month period because of a serious health condition.
WORK COMP DEFINED: What is California Workers' Compensation?
California workers' compensation laws provide money and medical benefits to an employee who has an injury as a result of an accident, injury or occupational disease on-the-job. On-the job means within the course and scope of employment. This means the injury happened when the employee was doing something (work) that benefited the employer.
California workers' compensation is designed to protect workers and their dependents against the hardships from injury or death arising out of the work environment, and in performing job duties. It is intended to benefit the employee and employer alike or equally. The employee receives money (usually on a weekly or biweekly basis) and medical benefits in exchange for forfeiting the common law right to sue the employer. The employer benefits by receiving immunity from court actions against them by the employee in exchange for accepting liability that is limited and determined. The question of negligence or fault is usually not at issue.
PAIN AND SUFFERING: Do you get pain and suffering damages in a San Diego Work Comp Claim?
No, you do not get pain and suffering damages in a California Work Comp Case. This is one of the major differences between a work comp claim and civil personal injury case. There is one slight exception: if you were injured at work by a third party not connected to your employer, then you have the right to pursue pain and suffering damages against the third party who caused your injury at the same time you get to pursue your work comp claim.
WORK COMP INSURANCE: If I am an employer in the state of California, do I need to have Workers' Compensation Insurance for my employees? Even if I am a roofer, or real estate broker with independent contractor agents?
Yes, you are required to have it. Under California law, employers are required to have workers’ compensation insurance if they have even one employee. If you are a roofer and don’t have any employees, you are still required to carry the insurance. If you are a real estate broker and you have agents, you are still required to carry it even if they are independent contractors.
OUT-OF-STATE EMPLOYER: If I am an out-of-state of California employer, do I need to carry California Workers' Compensation insurance for my employees?
Depends. Out-of-state employers may need workers’ compensation coverage if an employee is regularly employed in California or a contract of employment is entered into here.
SOLE BUSINESS OWNER: Is California Workers' Compensation Insurance required if I am a sole owner of a business with my wife, and we have no employees?
Depends. Generally, coverage for sole owners of a California business is optional. You would, however, need to have workers’ compensation coverage for any employee you may hire, even if it’s just one employee, and even if it’s just temporary employment. You should consult with your California work comp attorney, insurance agent or broker, or carrier regarding the specifics of your situation and your options. Also, each situation is unique and you should go over all options available to your specific situation.
CALIFORNIA ABOGADO DE BICICLETAS O MOTOCICLETAS EN SAN DIEGO: Por qu es muy importante para obtenga un abogado de bicicletas o motocicletas en San Diego California?
Contactenos lo mas pronto posible para que podamos revisar su caso de para ayudarlo a comenzar en una Buena recuperación. Accidentes de moto y la bicicleta en San Diego California puede tener efectos perjudiciales sobre su salud física y emocional durante varios años después del evento, por lo que es importante trabajar con un abogado con experiencia de lesiones personales de Las Officinas de Ley de Mark C. Blane en San Diego, California.
LA HERIDA DE CEREBRO EN SAN DIEGO CALIFORNIA: Tengo una herida de cerebro del accidente en motocicleta en San Diego, California, qu son los sntomas de dao de cerebro?
En muchos casos de esto, el individual necesitará experiensar tratamientos cognoscitivo y neurológicos para averiguar que severa la herida de cerebro es, y qué partes del cerebro han sido danadas. Todos estos efectos y el cuidado médico que necesitara deben ser tomadas por el paciente o sus familiares. La carga financieramente puede ser reducido con la ayuda de uno de nuestros abogados; nuestra empresa hará todo lo posible pa mantener sus mejores intereses en mente, y hacer el trabajo necesario para construir un caso sólido.
ABOGADO DE LESIONES EN SAN DIEGO: Por qu necesita un abogado de lesiones personales en un accidente de bicicletas en San Diego California?
Cuando ha sido gravemente heridos a consecuencia de un accidente en bicicleta en San Diego California, necesita la asistencia de un abogado de lesiones personales que le ayudarán a recibir la indemnización que se merece por los daños y perjuicios que haya sufrido. Algunas personas sufren heridas graves en el lugar del accidente, muchos sufren de dolor y problemas de salud semanas, incluso meses después del accidente en bicicleta. En todos estos casos, un abogado de lesiones personales en San Diego es necesario para alludarle.
BICICLETA DE ACCIDENTE EN SAN DIEGO: Una bicicleta de accidente en California puede producir lesiones graves?Claro que sí, y es posible que la asistencia de un abogado de lesiones personales en San Diego California con experiencia para recibir una indemnización completa por las pérdidas de salarios, gastos médicos y otros gastos conexos. El abogado de Las Oficinas de Mark C. Blane en San Diego se especializan en casos de accidentes de tráfico. Usted necesita la ayuda de un fuerte y experienciado abogado en San Diego para presentar su caso después de un accidente de bicicleta, y siempre vamos a buscar su mejor interés.