I participated in two mock trials and was able to give (what I at least thought was) constructive feedback to the participants and to give them numerical scores for their respective roles in each trial. Boy were we amazed at the talent we saw this weekend. Some of these kids (or young adults, if you prefer) are absolutely rising stars and far more advanced in their goals for the future than I ever was at their ages.

Thank you to everyone involved, especially Judge Burrowes. It was a great time and we will surely be back next year. Here is a link to the KNDO.com article about the event:

http://www.kndo.com/story/21317013/students-present-mock-trial-in-front-of-real-benton-county-judge

Jacob Smith is an associate attorney at the law firm of Calbom & Schwab in Moses Lake, WA and represents injured plaintiffs and workers. Jacob is a lifelong resident of Washington State and enjoys fishing, going to Seahawks games, keeping up to date on the latest legal news, and spending time with his family.

• Deer are most active at dawn and dusk. Be especially watchful during these times.
• One deer crossing the road may be a sign that more deer are about to cross. Watch for other deer– they will move fast to catch up with leaders, mothers, or mates and may not pay attention to traffic.
• When you see brake lights, it could be because the driver ahead of you has spotted a deer. Stay alert as you drive by the spot, as more deer could try to cross.
• Wonder why the person ahead is driving so slowly? The driver may know where to slow down and be extra alert for deer. Don’t be too quick to pass, and watch out.
• Take note of deer-crossing signs and drive accordingly. They were put there for a reason.
• Try to drive more slowly at night, giving yourself time to see a deer with your headlights. Lowering the brightness of your dashboard lights slightly will make it easier to see deer.
• Be especially watchful when traveling near steep roadside banks. Deer will pop onto the roadway with little or no warning.
• Be aware that headlights confuse deer and may cause them to move erratically or stop. Young animals in particular do not recognize that vehicles are a threat.
• Deer hooves slip on pavement and a deer may fall in front of your vehicle just when you think it is jumping away.
• Deer whistles, small devices that can be mounted on your vehicle, emit a shrill sound that supposedly alerts deer nearby. (Humans cannot hear the sound.) How well the devices work is not scientifically known.

If a collision with a deer seems imminent, take your foot off the accelerator and brake lightly. But—and this is critical–keep a firm hold on the steering wheel while keeping the vehicle straight. Do not swerve in an attempt to miss the deer. Insurance adjusters claim that more car damage and personal injury is caused when drivers attempt to avoid collision with a deer and instead collide with guardrails or roll down grades.

If you accidentally hit and kill a deer, try to move the animal off the road–providing you can do so in complete safety. Otherwise, report the location of the deer’s body to the city, county, or state highway department with jurisdiction for the road. If no action is taken, contact the non-emergency number of the local police department, and the agency will arrange for the body to be removed. This will prevent scavengers from being attracted onto the road, and eliminate a potential traffic hazard.

If the deer is wounded, call the non-emergency number of the local police department and describe the animal’s location. Emphasize that the injured deer is a traffic hazard to help ensure that someone will come quickly.

If you do hit a deer and are injured or you car is damaged, talk with your insurance adjuster about using your Personal Injury Protection (PIP) and automobile damage policies. If the adjuster is unwilling to work with you or is being unfair or difficult, contact a personal injury attorney to assist you in dealing with the adjuster. Safe travels everyone!

Jacob Smith is an associate attorney at the law firm of Calbom & Schwab in Moses Lake, WA where he represents injured plaintiffs and workers.

• Call the police. A police report is very important later down the road. This is true even if the accident seems minor. In fact, it is actually against the law to fail to report an accident when damages are more than $700.
• Get the other driver’s insurance and contact information.
• Go to your doctor if you are hurt.
• If you have health insurance, use that health insurance first instead of relying on the negligent driver’s insurance. Your own insurance company is legally obligated to provide you with optimum care that is in your best interest whereas the other driver’s insurance company is not.
• Get a copy of the police report.
• Contact the other driver’s insurance company but do not sign any statements
• If the insurance company provides you with a check, do not cash the check unless you agree with the amount. Cashing this check basically contractually binds you to that settlement amount.
• Keep track of everything and write everything down.
• Do not be afraid to negotiate with the insurance adjuster if the amount of money the adjuster is offering seems too low.
• Contact a personal injury attorney if you feel like the insurance adjuster is not treating you fairly. Many personal injury attorneys will be happy to talk with you about your auto accident claim and/or injuries caused by the accident free of charge. And if you decide to hire the attorney most personal injury attorneys will not charge a fee upfront. Instead, the attorney will charge what is called a “contingency fee.” A contingency fee is an agreement where the attorney collects a percentage of the money he or she recovers for you. Thus, the client is able to hire an attorney without paying money up front.

Good luck and remember: If you are injured by the negligence of another, you have legal rights. Don’t let an insurance adjuster convince you otherwise.

Ashley White is an associate attorney at the law firm of Calbom and Schwab in Moses Lake, WA. Growing up in Eastern Washington, Ashley understands and relates to clients in our unique section of Washington State and works hard to bring the residents of Eastern Washington the justice they deserve.

Jacob Smith is an associate attorney at the law firm of Calbom & Schwab in Moses Lake, WA where he represents injured plaintiffs and workers.

Because you are technically suing the defendant and not the insurance company, many problems can arise that make it difficult for the innocent injured party to get the money he or she deserves in a reasonable amount of time. Sometimes insurance companies deny that their insured (the party that injured you) is covered under their insurance policy. Sometimes insurance companies draw out the process to the point where there is the threat of a lawsuit hanging over both parties for years. Often the insured defendant wants to admit liability (that he or she was responsible for your injuries), yet the insurance company will fight liability to the end, wasting every parties’ time and money.

This is where covenant judgments can help. A plaintiff and a defendant can negotiate a settlement out of the watchful and unreasonable eye of the defendant’s insurance company. The plaintiff and defendant can then ask the judge to determine whether or not the settlement is reasonable. If the judge finds the settlement reasonable, the insurance company must pay the plaintiff the entire amount of the settlement agreement, completely apart from any policy limits in place. In return for this “covenant judgment,” the plaintiff signs an agreement to limit his money recovery to the maximum amount of the defendant’s insurance policy. The defendant also signs over to the plaintiff any right the defendant has to sue his insurance company for “bad faith” in representing him.

An example is probably necessary to better explain the concept. Let’s say Andy is suing Betty for injuries he sustained in a car accident as a result of Betty’s negligence. Betty has an auto insurance policy with a limit of $100,000. Andy believes he is entitled to about $150,000 and offers to settle the case for $100,000, the policy limits on Betty’s auto policy. However, Betty’s insurance company refuses to settle for any more than $5,000, even in the face of evidence that easily proves damages much higher than $5,000. Andy and Betty can settle for $125,000 and take that settlement to the judge. The judge can declare the $125,000 settlement reasonable and order Betty’s insurance company to pay the entire $125,000 to Andy, even though it was originally only contractually obligated to pay up to the $100,000 policy limit.

Obviously this is just a quick overview of covenant judgments and there are a lot of details I had to leave out for the sake of brevity. You can find more information about covenant judgments in Washington State here: Bird v. Best Plumbing Group, LLC, 287 P.3d 551 (Wash. 2012); Thomas V. Harris, Washington Insurance Law § 10.02, at 10–3 (3d ed. 2010); Mut. Of Enumclaw Ins. Co. v. T&G Constr., Inc., 165 Wash.2d 255 (Wash. 2008). Also see what others have to say about the topic: http://www.northwestinsurancelawblog.com/articles/covenant-judgments/,  http://www.thefederation.org/documents/franco.htm,   www.bullivant.com/showarticle.aspx?show=1338,  http://www.highbeam.com/doc/1G1-314139801.html

Jacob Smith is an associate attorney at the law firm of Calbom & Schwab in Moses Lake, WA where he represents injured plaintiffs and workers.

Just a few months ago, the Administration enacted Social Security Rule
11-1p.  Which says that if a Social Security Claimant has an application on
appeal, they may not file a new application until they terminate the prior
appeal.

Previously, if a claimant was denied and had appealed the determination of
the Administrative Law Judge to the Appeals Council in Virginia, they had
the option of starting over and providing updated medical records to see if
they could qualify for current benefits, based upon the new records, and
continue to pursue their retro benefits on the older denied application.

Appeals to the Appeals Council can take several years for action/decisions
to be made.  Under the old system there were often situations where new
medical, perhaps an MRI, or Brain Scan, or other new medical would shed
light on why the claimant was so impaired.  This new medical could often
allow a favorable determination.  Thus, the claimant could begin to receive
some benefit and have the means to support themselves while waiting to see
if the appeal for retro benefits was eventually to be approved.

Now, if a claimant has appealed the decision, they may not file a new
application unless they dismiss the pending appeal.  Thus, the claimant must
elect to give up the old benefits entirely if they want Social Security to
consider any new medical and application.  This is a huge burden to the
claimants and is a serious loss of rights.  Many claimants are tempted to
give up valuable rights to seek all their benefits just so they can
potentially access current benefits to live on.

The Senate-approved measure would drastically change Washington State’s workers’ compensation system by establishing an option for lump-sum settlements for claimants who are looking at long-term disability (pension benefits).  Under the Senate version of the SB 5566, any worker who is eligible for vocational retraining can elect to decline vocational services and instead receive a one-time disability settlement.  The amount of the settlement would be equal to one-third of the value of the pension annuity calculated as though the worker had been found totally and permanently disabled.  The settlement would be paid in a lump sum, and the worker’s claim would be closed.  A settlement recipient can reopen his or her claim for medical treatment only upon a showing of worsening medical conditions.

The Washington State Labor Council will work to defeat SB 5677 in the House.  Why? Under SB 5566, unscrupulous employers would be able to pressure injured workers into taking a smaller, one-time payment, instead of the life-time compensation to which they are currently entitled.  The average injured worker facing long-term disability is extremely vulnerable—they have lost their job, perhaps their career and livelihood, have lost function or range of motion, often are in pain, are suffering from a loss of esteem and identity, and are facing a myriad of personal and family stress points.  This does not put the injured worker in an enviable position to prevail in a dispute with their employer or more likely the attorneys of their employer’s third party administrator or Retro Association.

Tell your legislator to vote NO on SB 5566 to protect our injured workers.

Those persons injured in an automobile crash in Washington have yet one more reason to be concerned, with a recent opinion that is being published by Division III of the Court of Appeals, Splattstoesser v. Scott, P.3d, 2011 WL 91040 (Div. III, 2011).¹ In this case, Ms. Splattstoesser was injured when another person, one Kenneth Scott, rear-ended her vehicle. No doubt because an agreement could not be reached with an insurance company,² whether because Mr. Scott or his insurance company refused to accept responsibility for the collision or the harm caused Ms. Splattstoesser, a lawsuit was filed.

Washington courts have a mechanism called Mandatory Arbitration. Mandatory Arbitration is intended to relieve court congestion by providing an expeditious, inexpensive method of dispute resolution for claims valued at $50,000.00 or less. Ms. Splattstoesser submitted her case to Mandatory Arbitration and was awarded a total of $18,014.00 for her losses. Mr. Scott requested that the matter be reheard by what is known as a trial de novo. Mr. Scott’s attorney (more likely that of his insurer, without knowledge of Mr. Scott), filed the request for a trial on behalf of “the Defendant, Simon Larson,” rather than Kenneth Scott.

Divison III of the Court of Appeals held that Mr. Scott’s attorney had substantially complied with the request for a new trial and that this was adequate to preserve such request. The reason for concern is that the backload of criminal litigation is increasingly burdening not only our courts, but our counties’ various resources. This failure to hold a defendant accountable for the paperwork he files, particularly when some insurance companies do so out of hand, regardless of the merits of the award and without regard for their insured’s wishes – chips away at the ability of an injured person to obtain justice in a fair and expeditious manner.

Civil litigants in Yakima and Grant Counties should be especially concerned with this development, as inadequate county resources mean civil cases are virtually being relegated to a bureaucratic grave. That may force plaintiffs with meritorious claims to settle their claim for less than fair value, because it is simply not worth their time to wait. If you do find yourself on a jury, in a civil lawsuit, be cognizant of what the plaintiff likely had to go through to have his day in court, and dispense justice accordingly.

¹Filed January 11, 2011.

²In almost any personal injury action, regardless of the parties named, it is a fair bet to assume that an insurance company is funding the defense. Parties are prohibited from discussing insurance in trial, per Washington Rule of Evidence 411. Don’t sweat it if you don’t hear the word. If you’re on a jury, the defendant almost certainly has insurance. If you’re on a jury in Grant County and the defense attorney is from another area, it is almost guaranteed (no insurance defense attorneys are located in Grant County).

Jim Tobin, a Washington State worker, was permanently disabled after being hit by a crane boom. He sued the crane operator, settling for 1.4 million in damages. The majority of the damages awarded were for pain and suffering.

Under the Revised Code of Washington (RCW 51.24.030), an injured worker is required to repay a portion of their third-party recovery to the Department of Labor and industries, in order to reimburse them a for their payment of workers compensation benefits.

A judgment of the Pierce County Superior Court, found that the Department of Labor and Industries could not seek reimbursement from the portion of Mr. Tobin’s third party recovery, which compensated him for pain and suffering. Appellant Washington Department of Labor and Industries sought review of that judgment.

The Department argued that the statutory reimbursement use of the term recovery included all damages, except loss of consortium. They claimed they were entitled to seek reimbursement for the pain and suffering portion of Mr. Tobin’s damages.

On appeal, the court held that because the Department did not compensate the injured worker for his pain and suffering, it could not be reimbursed from that portion of the employee’s award. The pain and suffering portion of the employee’s third party damages was therefore not a “recovery,” as defined under the Revised Code of Washington (RCW 51.24.030(5)).

The court further noted that the legislative history did not provide evidence that the legislature intended to allow the Department to recover the pain and suffering portion of a worker’s third party recovery as reimbursement of money paid to compensate his/her other losses.

The court concluded that RCW 51.24.030 did not give the employee adequate notice that third party settlement funds, earmarked as compensation for their personal pain and suffering, were subject to distribution (under RCW 51.24.060) for reimbursement of payments for other losses.

David Lauman, at Small, Snell, Weiss & Comfort, P.S., are attorneys for Respondent, Jim A. Tobin. A final decision from the Washington State Supreme court is pending.