How Much is a Louisiana Herniated Disc Case Worth?

Disc (or disk) herniations are permanent injuries that often require a substantial settlement value, due to the seriousness of the injury. That being said, coming up with a case evaluation is difficult. No one knows what a jury would do with a herniated disk case. However, in our experience as car accident lawyers, we can help you understand a reasonable range of settlement for your Louisiana herniated disc case.

Keep in mind that the higher end of the value is often obtained from a lawyer trying to get the most for your case. A ‘settlement mill‘ may try to settle your disk case for a fraction of its true value, according to recent reports. The Personal Injury Law Firm fights for the maximum value for its clients. We do not settle for a (low) ‘quick check.’

Illustration of a Louisiana herniated disc

A herniated disc

The Herniated Disc Pain and Suffering Formula

            Medical Bills x 3 = Your Pain and Suffering

Many insurance company adjusters use this formula (Your Medical Bills x 3 = Your Pain and Suffering Damages) for your Louisiana herniated disc case. In reality, it is not a realistic way to value your disk case. If you have a disc herniation, you may need surgery which may cost $150,000. If so, it is likely that a jury may award you upwards of $500,000 in pain and suffering. This is far from the ‘3 x medical bills’ formula. Likewise, if your disc herniation does not need an operation, yet you only have $30,000 in medical bills, you may be looking at a lifetime of pain and suffering. If so, it is reasonable that a jury would award you more than $90,000 in pain and suffering.

What The Team Will Do

An effective way to help settle a claim is to bring a blank jury verdict form to mediation. We then ask the Defense attorney to fill out the verdict form. They are forced to face reality and the reality that we are willing to go to trial if necessary. Juries do not use a mathematical damages formula. Juries consider each case differently and base their decision off the facts. A Louisiana herniated disc case is based on verdicts in Louisiana so that it may vary from other jurisdictions.

Louisiana Herniated Disc Averages

Louisiana verdicts in disc herniation car wreck lawsuits average around $350,000, with no fault of the plaintiff. This number may sound good, but note that the median jury verdict for a disc herniation case is approximately only $75,000. Therefore, only a few herniated disc injury cases are getting very high jury verdicts, but the majority are under $100,000. A small amount of disc herniation jury verdicts are above $1 million.

How much is your herniated disc case worth to you? A ‘quick check’ or a hard-fought complete recovery?

Bulging Disc Values Versus Herniated Disc Values

A professional medical expert – a radiologist – sees a bulging disc as very different than a herniated disc. Technically speaking, a herniated disc means that the outside of the disk (the annulus) is cracked. Therefore, the inner part of the disc (the nucleus pulposus) is allowed to leak out of the disc. A bulging disc is a portion of the disk that extends beyond the spinal column vertebral bones. The difference is that herniated discs are usually associated with trauma, like a car accident, while bulging disks are often associated with aging.

Herniated discs are more likely to cause pain than a bulging disc.

Therefore, the average bulging disk verdict is around $75,000-$125,000, with a median of only $30,000. This means that courts award more for disc herniation injuries much more than bulging disc injuries.

Settlements for Herniated Disc Injuries

The average settlement figure for disk herniation case is more difficult to determine. This is because most settlements are confidential. The data is not readily available. Also, some ‘settlement mill’ firms may skew the results for settling quickly, but also for a relatively low amount.

A verdict or settlement for a bulging or herniated disc should include past and future:

  • Medical Expenses
  • Loss of Wages
  • Loss of Consortium
  • Pain and Suffering
  • Other Damages

Attorneys who regularly handle herniated disc cases, if liability is not an issue, see that most cases with surgeries settle above $150,000. Some even resolve north of $750,000. Many herniated disc settlements where the plaintiff did not have surgery settle for far less. Another major consideration is the amount of insurance that covers the injury. Also, depending up the insured status of the injured party, the Louisiana “No-pay, no-play” law may limit recovery as well.

In short, herniated disc claims can resolve for over $1,000,000 or as low as $1,000; it all depends on the facts and the plaintiff’s medical treatment.

The Law Firm offers free consultations. Contact us today!

The Cost of a Personal Injury Attorney

cost of a personal injury attorneyWhat is the Cost of a Personal Injury Attorney?

The personal injury Law Firm is committed to providing clients with the counsel and support to deliver effective and affordable justice to all injury victims. The cost of a personal injury attorney is less than you may think. At the outset an initial consultation – in person or over the phone – is free. After that, personal injury attorneys often charge on a contingency fee basis – that is, they take a ‘cut’ of your settlement. For that ‘cut’ you want to be sure that your attorney of choice works hard to help you recover the most, not just get a ‘quick check‘ to pay their advertising bills.

For all of the prospective clients of the Law Firm, we offer the following:

If accepted, we work on a contingency fee basis, which means that you“Don’t Pay Unless You Win.”

A more pressing consideration is who you hire to represent you may affect your recovery. Read here. All those TV ads don’t pay for themselves!

Do I Have A Claim?

The first thing that many people wonder when they are hurt in a personal injury accident – at work, in an automobile, a maritime claim, 18-wheeler accident, or any potential injury case  – if they have a legal claim.  An experienced Louisiana personal injury attorney, such as Attorney Ed Kramer, can analyze the specific facts of your case. He can and will counsel you regarding who might be at fault and whether they can be held legally accountable, in full or in part, for the harm caused. This process is free. It is included as a cost to hire a personal injury attorney. So, to get started, there is no cost at all. The cost of a personal injury attorney is lower than you may think.

cost of a personal injury attorney

Most personal injury attorneys charge a percentage of what is collected.

Can I Handle the Case Myself and Save the Cost to Hire a Personal Injury Attorney?

Absolutely! Most attorneys charge 1/3 of what they recover. There is no prohibition on representing yourself.

It is natural that following an accident you may want to settle the matter quickly and move on with your life.  You may even be tempted to try to take care of all issues—including legal issues—without getting professional representation. However, there are risks to going it alone.  There may be insurance coverage available for medical bills even if there are no resources available to pay for the pain and suffering.  There may be other potentially responsible parties.

Do you know your legal rights regarding your claims communications with the insurance company? Whether you must consent to a tape recorded statement?  Whether if you have a pre-existing injury, prior driving accidents or tickets, or a criminal record, if these issues help or hurt your claim? Do you have experience with other cases to know what your case is worth? Do you know what you must do to pursue your claim if the insurer offers nothing or too little?  An experienced personal injury attorney such as Ed Kramer knows the answers to these questions.

What is My Case Worth?

It is impossible to make generalizations about the value of any case without knowing the details of the harm caused and the manner in which it was caused.  One of the most important jobs that your attorney will perform is leaving no stone unturned when it comes to detailing all possible losses that will translate into a legal recovery.  Louisiana personal injury laws allow recovery for a wide range of situations, many of which may not be readily apparent to the injured party.  This includes past medical bills, future medical and rehabilitation costs, therapy, lost past wages, lost future income, pain and suffering, and more.

The amount you will recover is dependent on the facts of your case and the skill of the personal injury attorneys who accompany you throughout the process.  Did you know that you have a claim for the way in which your spouse’s injuries have impacted you even though you yourself may not have been injured?cost of a personal injury attorney

What Do I Do After An Accident?

You may be disoriented, shaken, and confused after an accident.  However, in the aftermath of an accident, it is important to obtain crucial information.  After an accident, if possible, you should note key facts regarding the circumstances of the wreck. Such as time of day, the weather conditions, the parties involved, statements made by the police and other witnesses. Do this as soon as possible so that you will remember this information later.

How Do I Handle Insurance Adjusters?

When accidents occur, it is common for an insurance company to ask you to make a recorded statement. It is never wise to do so without having first consulted your Baton Rouge personal injury attorney.

If you decide to do so without an attorney’s advice, you should keep a few facts in mind.  First, insurance adjusters can discretely influence you into saying something that would hurt or limit your claim. Two, any recorded statements you make to an insurance adjuster might be used against you. Lastly, depending on when the statement is taken you may not remember all the facts.

All things considered, picking the right lawyer is well worth the cost of a personal injury attorney.  Contact the Personal Injury Law Firm for a free initial consultation.

Excavator Personal Injuries Often Serious

Downside of Useful and Large Equipment: Excavator Personal Injuries

We see excavators all the time – on construction sites, on barges, working on roadways, and more. These giant pieces of equipment are, at their very basic core, hydraulic marvels. However, excavator personal injuries are often serious, simply because of the size and weight of these monsters.

The number of excavator accidents on the job is recorded by the U.S. Occupational Safety and Health Administration on its website. The actual number of cases is surely much higher, because some are non-reported, or not occurring on the job.

These giants are very helpful but very dangerous. Operator error is a factor in injuries, but so is faulty equipment, including faulty design. Often, serious personal injuries lead to product liability lawsuits. Many times, hydraulic hoses burst – and if there is no backflow preventer, the machine will fail, often causing the boom and its associated load to come crashing down. Often this results in a serious injury, or it is fatal.

excavator product liability

Necessity By Design: Excavators Sometimes Fail

The genius behind the design of excavators is the use of hydraulics. It is an efficient way to use energy to lift large objects, including dirt, logs, cars, and other items. However, the design can also be deadly if it does not include a so-called check-valve to stop the flow of hydraulic fluid in the event of a leak.

excavator personal injuries

Often, when one is seriously injured by an excavator, a suit is brought against the manufacturer in products liability. In so doing, the legal team representing the injured party must be very agile and prepared. The manufacturers of heavy equipment, including excavators, are not prone to paying claims easily. This is because there are often accidents involving excavators, and the manufacturer does not want to admit any design or product liability.

Attorney Ed Kramer has experience taking on both U.S. and foreign manufacturers of excavators and other hydraulic equipment. “It takes experts, precise legal knowledge, and hard work” to win a case against a manufacturer of heavy equipment. Attorney Kramer has been associated by other counsel across the United States to handle cases involving serious injury from excavators. Some of these have involved millions in settlement for wrongful death and other claims.

Sometimes, even the purchasers of excavators find themselves at odds with the manufacturer of the excavator. In one case, a $2.5 million excavator caught fire, and the fire suppression system failed. The owner sued the manufacturer over the alleged defective machine, alleging faulty equipment.

Proving Future Damages in Cases Involving Excavator Personal Injuries

If a person is killed or seriously injured in an excavator case, the damages may include future lost wages. In order to show what these damages are, the injured party’s attorney will likely use an economist to calculate future lost wages. However, the attorney for the insurance company or the manufacturer of the excavator will also likely hire an economist to attempt to show that the future lost wages are not as high, or non-existent.

The scope of work that can be performed after a serious personal injury is often decided by a vocational rehabilitation expert witness. The defense will also likely hire a counter-expert to try to prove fewer lost wages.

All this adds up to a complicated legal scenario in which the real success is measured in a positive outcome for the injured party that is fair and equitable. Often times, this involves a protracted legal dispute.

Contact the Law Firm, LLC, and attorney Ed Kramer if you have any questions concerning an excavator personal injury.

insurance bad faith

Claim Denials and Insurance Bad Faith Laws

Insurance Bad Faith Laws in Louisiana

Insurance is about money. It costs money to have it. The consumer – insured or not – wants money from the insurance company. The insurance company wants to pay nothing, or at least as little as possible. If you have a claim against an insurer, it is often a battle.  Many times, the goal of the insurance company is to deny a claim for so long you either give up or take far less than full value. A question that often arises is when is an insurer acting in bad faith? Louisiana has specific insurance bad faith laws.

Louisiana has codified some specific duties insurance companies owe to their insured and claimants. However, just because the law says it, doesn’t mean that it is always followed. This is where the complaints arise.

There are two basic bad faith insurance laws in Louisiana: (1) Louisiana Revised Statute 22:1892 and (b) Louisiana Revised Statute 22:1973.

Another example is the Louisiana Unfair Trade Practices Act. This requires insurance companies to not engage in misrepresentations and false advertising of insurance policies. For example, an insurer cannot make misleading statements regarding policy benefits, advantages, conditions, and terms, as well as making statements to induce the lapse, forfeit or surrender of an insurance policy. But sometimes they do and this is where insurance bad faith laws also provide remedies, or penalties, against an insurer.

Duty of Insurance Company in Louisiana

In Louisiana, the law states that insurance companies are required to act and provide a duty of good faith and fair dealing. This duty requires insurers to adjust claims fairly and promptly and to make reasonable effort to settle claims with the insured and/or the claimant. However, as most people have experienced, this ‘duty’ is often an exercise in frustration.

One difference between the two Louisiana insurance bad faith statutes is the damages that you can recover.

Under 22:1892, assuming you can prove the elements of a claim, the insurer shall be subject to:

“[A] penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs.”

22:1973 provides for an even greater damage award:

“In addition to any general or special damages to which a claimant is entitled to breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.”

These penalty statutes provide strong incentives for insurers to treat people fairly. However, in many instances, that is not the case.

How Do You Make An Insurance Company Pay a Claim

Many people often accept less than full value for an insurance claim to avoid the hassles associated with fighting a big insurance company.  The best way to have an insurance company pay a legitimate claim is to:

  • have a legitimate claim;
  • document the whole claim;
  • have proof to support your claim;
  • save all letters to and from the insurance company;
  • write a complete demand letter;
  • settle a claim or file suit within the time allowed by law.

However, even then, as many have found, insurance companies are reluctant to pay what a claimant may perceive to be the full value of the claim. Some people are happy to accept less. Some law firms appear to be facilitating the practice of settling many claims quickly for less than full value.

Specific Examples of an Insurer’s Bad Faith

If you are someone who does not want to take less than full value for a claim, and you push an insurance company, there also may be a cause of action for the failure to abide by the duty of good faith and fair dealing. If the duty is breached, it forms the basis for a claim of insurance bad faith. Louisiana State law several identifies several actions which are considered a breach of this duty, such as:

  • misrepresenting pertinent facts or provisions of an insurance policy regarding coverage knowingly;
  • knowingly denying coverage or attempting to settle a claim based on an application the insurer altered without obtain the consent of the insured or providing notice;
  • knowingly failing to pay on a settlement within 30 days of reaching an agreement;
  • arbitrarily, capriciously, or without probable cause, knowingly failing to pay what is due by contract to the insured within sixty days of receiving satisfactory proof of loss.

Most insurance bad faith insurance claims often come up in automobile insurance or homeowner’s insurance policies, but they also arise in other areas as well.

Complexities Associated With Insurance Bad Faith

Often, it is difficult to get an insurance company to pay a legitimate claim. It is also almost impossible to get an insurance company to pay bad faith penalties without a lawsuit.  This is because insurance companies do not want to pay a claim, much less admit to bad faith nor pay money for that claim.

The complexities of this type of claim are illustrated in the case of Kelly v. State Farm, in which the Court examined the duties owed to a claimant and when Bad Faith was applicable to a claim. The text is long and boring to most law people, but very instructive to a lawyer who represents claimants.

“The plain language of La. R.S. 22:1973(A) is favorable to finding a cause of action for an insured. Most notably, after describing the duties owed by an insurer, La. R.S. 22:1973(A) concludes: “Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.” It is a cardinal rule of statutory interpretation that “[t]he word ‘shall’ is mandatory and the word ‘may’ is permissive.” La. R.S. 1:3.


The bottom line is that the best way to receive damages under insurance bad faith laws is to hire a competent attorney who is versed in insurance bad faith laws and is willing to take the insurer to court. The more people who do it would tend to force insurance companies to treat people in a more fair fashion.

Patience and good lawyering is the best way to handle insurance bad faith claims.

attorney contingency contact

Attorney Contingency Fee: What You Need to Know BEFORE Hiring a Lawyer

Anyone who has a personal injury claim wants the most that they can for their case, AFTER the attorney contingency fee. It has been said that the first dollar is the easiest to recover in a personal injury case, the last dollar is the hardest. What this means is that if your case is worth $90,000, then getting the insurance company to pay $1 for it is the ‘easiest’ recovery. The last dollar, the 90,000th dollar, is the ‘hardest’ to get them to pay.

But you, the personal injury victim, want to recover the full $90,000.  Settling your case for say, $30,000, or 1/3 of the value, would not seem something that you would want.

Often, in Baton Rouge, Louisiana and other places, attorneys charge 1/3 of the recovery. Some even more! That means if you accepted an offer to settle your case for $30,000, the attorney contingency fee is $10,000. you would only ‘net’ $20,000, including medical expenses and fees.

If the insurance company was to pay $90,000 to settle your case, the attorney contingency fee is $30,000. Your ‘net’ would go up. But it is not easy to get the insurance company to pay $90,000. It’s far easier to get $30,000 and walk away.

Insurance Adjusters Get Raises if You Take Less

That is because insurance companies want to pay as little as possible for personal injury cases. In fact, some insurance companies review the performance of their adjusters, and pay bonuses, on how many cases they settle for less than full value.

State Farm, for example, paid bonus checks and raises to adjusters who “reduced the payout on automobile insurance claims.” Article here. After a personal injury accident, there is a great incentive for insurance adjusters to settle claims for less than full value. The less that the insurance company pays to you, the more that they make in profits.

The Proliferation of Lawyer Ads and Abuse of Attorney Contingency Fees

The easiest way for a lawyer to handle a personal injury case is to try to get you, the client, to settle as quickly as possible for a ‘quick check.’ The hardest way for a lawyer to make money, but often the best for you, the client, is to force the insurance company to pay fair value for your case.

But getting the highest amount possible in a personal injury claim often takes experience and hard work. The work for a lawyer is getting all the medical bills and medical reports to ensure that you are fully healed before settling your personal injury case. Work such as gathering evidence to prove that you are not at fault, or minimizing fault. It may mean hiring experts and associating other attorneys. It often means showing the insurance company that you are ready to take your case to trial.

This is where you should pay close attention and what you NEED to know BEFORE hiring a lawyer.

Personal Injury Contingency Fee Often Exploited

According to Professor Nora Engstrom Engstrom, “Contingency fees also have an advantage over other legal payment schemes because, unlike a flat or hourly fee, contingency agreements align the client and attorney’s financial interests. The alignment is imperfect, however, and thus generates significant agency costs. Settlement mills exploit this misalignment and also turn a solution some have offered to remedy it on its head.” In other words, some heavily-advertising ‘Settlement Mills’ take on a whole lot of cases, and settle them quick and cheap – less than full value.

To me, Ed Kramer, this is a questionable legal tactic. The attorney should do all that is possible to recover the most for the client. The attorney should not simply take the easy money and walk away.

According to Professor Engstrom of Stanford Law School, the attorney contingency fee system has allowed so-called “settlement mill” law firms to proliferate. What is a ‘settlement mill’ you ask? According to Professor Engstrom:

  • These law firms advertise at a high rate;
  • These law firms settle most of their cases for far BELOW what a judge or jury might award.

Insurance Companies Pay Less to a “Settlement Mill”

In fact, Forbes Magazine ran a story entitled “Study Of “Settlement Mills” Shows Insurers Like Them.”  Forbes. This is because the “settlement firms” often settle the cases for less than the full value.

This is because they are after the easiest money to recover in a personal injury case – the first dollar. According to Professor Engstrom, these settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of “(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court.”

The Forbes article notes: Settling all cases  — including the catastrophic cases —  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to a jury trial but offer insurance companies quick, cheap settlements. The settlement mill attorney, therefore, makes up for quality in quantity in collecting an attorney contingency fee.

How a Settlement Mill Can Harm You

See also: Four Ways Personal Injury Settlement Mills Harm Clients stating:

“The billboards and TV commercials promise – quick settlements, fast cash, immediate compensation. These “settlement mill” law firms function on high case volume and low case value. That’s bad for injured people who need justice. What are four ways settlement mills harm clients?

  • Settlement Mills do not go to court;
  • They do not help clients with rehabilitation;
  • Settlement Mills do not stand up to insurance company tactics.”

What Former Settlement Mill Lawyers Say

Also, people who have worked at “settlement mills” ” have told me how lawyers may be responsible for 600 cases at a time, with 100 or more in litigation.”

“They have told me how young lawyers in some of those firms are paid only for work on cases they settle before suit, so they have an extremely vested interest in taking whatever an insurance adjuster is willing to offer at that early stage, selling the client’s interest short.”

“Former settlement mill lawyers “have told me how in some firms non-attorneys employees actually negotiate with claims adjusters with no substantial attorney involvement. They have told me how those firms threaten clients that if they do not accept the insurance company’s pre-suit offer, they may be required to pay the other side’s attorney fees, long before suit is filed or the defense invokes the “offer of judgment” rule that would make that even theoretically possible.” Atlanta Injury Law Blog.

Such settlement mills prey upon uneducated and unsophisticated people” Law Firm is NOT a settlement mill. Our practice revolves around getting you – the client – the MOST for your case. Contact us today if we can help you with your personal injury case. Our attorney contingency fee covers the whole ‘team approach’ concept and will benefit you, the client by going for more!

pedestrian car accident

Pedestrian Car Accident Likelihood Rises

Seems like every day we read headlines about a pedestrian car accident, not only in Baton Rouge but other places besides Louisiana.  On Tremont Street in Boston.  Mass Live.   In Sacramento.  ABC10. In Baltimore.  WABLTV11.

When a driver hits a pedestrian, it is a scary occurrence, but not uncommon.  According to the National Highway Traffic Safety Administration, over 60,000 pedestrians were injured in traffic accidents in 2006. Fatalities from a pedestrian car accidents in the United States in 2015 reached 5,376 deaths.

Much of this is due to the high cost of owning a car including the growth of urban areas and increased walkability of living areas. In Louisiana, pedestrians and bicycle riders are often forced on the roadway because there are not many sidewalks and designated bike lanes.  When a car hits a pedestrian at a speed of over 30 miles per hour, the result is more serious injuries and fatalities.  However, even at speeds of only 10 miles per hour, a pedestrian car accident can severely disable the pedestrian in a crash.

Pedestrians More Likely to Be in Accident with Car Than Ever

On average, a pedestrian was killed every two hours and injured every seven minutes in traffic crashes. Fourteen percent of all traffic fatalities and an estimated 3 percent of those injured in traffic crashes were pedestrians.” (Traffic Safety Facts: Pedestrians, April 2014) – (PDF 1.20 MB)

Even the CDC keeps records of pedestrian car accidents because of their frequency.

When an automobile car accident occurs, sometimes it is the fault of the driver, sometimes the pedestrian. Often, if the pedestrian is killed, a wrongful death claim will ensue. Law Firm would like to help you decide the best course of action if you are injured in a pedestrian-car accident.

Pedestrian Car Accidents

The duty os care owed is what determines liability is a pedestrian car accident. All parties – both drivers and pedestrians – must exercise ‘reasonable care.’ Usually, negligence is assumed in a pedestrian car accident. However, courts consider many duties owed and factors when deciding negligence and liability.

Driver’s Duty of Care in a Pedestrian Car Accident

Drivers must exercise ‘reasonable care under the circumstances.’ It is considered negligence if the driver does not exercise due care.  Some factors leading to a finding of negligence can include:

  • Distracted driving
  • Driving under the influence of drugs or alcohol
  • Texting while driving
  • Talking on the phone while driving
  • Speeding
  • Failing to yield the right of way to pedestrians at crosswalks
  • Disobeying traffic signs or signals
  • Failing to signal while turning
  • Disregarding weather or traffic conditions

According to the National Highway Traffic Safety Administration, children between the ages of 5 and 9 are at the greatest risk of being involved in a pedestrian car accident.  Because children are less visible and often unpredictable, Louisiana law imposes a higher duty of care on drivers when it comes to children. The presence of children is a warning of danger to the driver to exercise greater care, such as when driving by schools, parks, and residential areas.

Pedestrian’s Duty of Care in a Pedestrian Car Accident

When walking or running, a pedestrian must exercise reasonable care for their individual safety. The pedestrian’s duty is proportionate to the danger presented.

Negligence is assessed when a pedestrian is not exercising reasonable care. A few of the most common factors contributing to pedestrian negligence are:

  • Ignoring the “walk” signal at an intersection
  • Entering traffic and disrupt the flow
  • Failing to use marked crosswalks
  • Darting in front of a vehicle
  • Walking on the roadway
  • Walking without proper visual alerts such as reflectors

Assignment of Fault

The assignment of fault in a legal claim arising from a pedestrian car accident is sometimes simple. A judge or jury decides fault. Evidence this is considered is usually:

  • the stories of both the pedestrian and the driver,
  • the applicable laws (such as speed limits),
  • the findings contained in the police report,
  • sometimes expert testimony.

If the driver is clearly at fault for the accident, the pedestrian will usually be able to recover compensation from the driver.  If the pedestrian bears all of the blame for the accident, the pedestrian will probably not be able to make a claim.

In some cases, the driver may actually be able to sue the pedestrian for compensation for any harm caused to the car, or for any injuries to the driver. Personal Injury Law Firm would like to help you if you have been involved in a pedestrian car accident. Contact us for a free consultation.

table saw products liability

Ryobi Settles Amputation Products Liability Case Over Saw for $2 million

One World Technologies, maker of the Ryobi Technologies table saw, has settled a products liability case over its table saw for almost $2 million. Plaintiff and personal injury victim Alex Mai, who accidentally severed several fingers on his dominant right hand with a Ryobi Technologies table saw, had sued One World Technologies, which made the saw, and Eric Aponte, who owned the saw, in Pennsylvania.

The suit was predicated upon negligence and products liability claims.

Mai, the injured party, recently settled with One World Technologies for $1.9 million, insured by AIG Group, and Aponte for $100,000, insured by Allstate. The full story is here.

The plaintiff was 19 in March 2012, when he was helping Aponte install hardwood floors at a woman’s home. Inexperienced in the use of table saws, he tried to cut some flooring.  When sawing the wood came into contact with the back end of the spinning saw blade. This created a ‘kickback’ which pushed his hand onto the blade, amputating his middle finger on his right, dominant hand.  Other fingers sustained nerve damage and disfigurement., which caused a “kickback accident” that pushed Mai’s hand into the blade.

The case had been going on for almost 5 years, with the injured victim and his lawyers using expert witnesses to prove pain and suffering and lost earning capacity. Liability, or who is at fault, was also a contested issue.

According to a court memorandum, the plaintiff alleged that the saw had been originally equipped with a guard. However, the guard had been taken off before he used the saw. The injured plaintiff argued that the guard had been defectively designed, the manufacturer knew customers had frequently been choosing to remove the guard, and Ryobi should have used “flesh detection” technology. The “flesh detection” technology has been available since early as 2000. This could have stopped the blade, and prevented the amputation that resulted in a significant personal injury.

One World Technologies, in a Court Memorandum, said the personal injury victim misused the saw and should have had the safety guard in place. Ryobi also said that he assumed the risk and that the saw met national safety standards.

Also, the insurers for the company and other defendants noted that the plaintiff is gainfully employed as a UPS supervisor. That he got the job after the accident and has less future lost wages.

The plaintiff’s memo said, “Ryobi simply decided that safety of its users wasn’t worth diminishing its profits on ‘best-selling,’ ‘lowest costing’ table saw.” “As a result, hundreds of BTS-10 users, including Alex Mai, suffered serious, permanent and disfiguring injuries.”

The claim was based upon a risk-utility and consumer expectation theories of products liability and raised negligence claims against the saw maker and Aponte, as well as a failure to warn claim.

Contact us if you have any questions regarding a potential products liability claim. Attorney Ed Kramer has handled products liability wrongful death and amputation claims to a successful conclusion. His Law Firm wants to help you!

Baton Rouge, La Personal Injury Attorney Ed Kramer

How Insurers Pay a Louisiana Auto Claim

Usually significantly less than full value

Every individual automobile insurance company has a specific procedure to pay money to the policyholder following the approval of a Louisiana auto claim. Getting the approval is where it gets tricky in the managing of an auto claim.  The goal of the insurance company is to pay as little as possible. The injured victim, of course, wants at least full value if not more.

“Quick checks” are often for far less than full value, that is why they are quick.  Would you sell a $50,000 car for $10,000 so that you can get the money sooner?  Of course not. However, some “Settlement Mills” make this a daily practice in settling their client’s auto claims – often for less.

The auto insurance policy documentation provides very specific information concerning when the insurer has the right to deny an accident claim. However, payment is not required in a specific time frame. But, you, the victim, have a limited time in which to bring your claim, which cannot be extended even if the insurance company agrees to extend the time.

A ‘Quick Check’ is often not Forthcoming in a Louisiana Auto Claim

Once the accident claim is filed, the insurance company will verify the facts, may take a statement, interview witnesses, obtain a doctor’s report, and obtain a copy of the police report. None of this is done with the intention of paying you more money – it is done to justify paying as little as possible.

The auto insurance policy must also be in force or paid current, for the insurer to approve, and pay, claims.

Depending on the type of insurance policy under which you are claiming recovery – third party, uninsured/underinsured, umbrella – the insurer owes different obligations to you.  Also, there are two bad faith insurance laws in Louisiana: (1) Louisiana Revised Statute 22:1892 and (b) Louisiana Revised Statute 22:1973.

Louisiana Insurance Bad Faith Statutes

The main difference between the two insurance bad faith statutes is the damages that you can recover. Under La. R.S. 22:1892, assuming you can prove the elements required, the insurer shall be subject to:

“[A] penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs.”

22:1973 provides for an even greater damage award:

“In addition to any general or special damages to which a claimant is entitled to breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.”

Penalty statutes are designed to provide strong incentives for insurers to treat people fairly. But this does not always happen.

Before making a bad faith claim, the person seeking damages must meet the requirements. Both of the Louisiana bad faith insurance statutes require you to prove the same elements to make your case:

  • You provided the insurer with satisfactory proof of loss that put them on notice of your claim and your damages;
  • They failed to pay you within the time periods outlined in the statute (30 days for 22:1892 and 60 days for 22:1973); and
  • Their failure to pay was arbitrary, capricious, or without probable cause.
  • Often, each element of this is contested by the insurer. If you ‘didn’t see the doctor long enough to prove injury,’ ‘your damages are not that high,’ and other reasons are often given by the insurer for not paying a claim.

Many “settlement mills” don’t bother with much of this legal maze.  The goal is merely to settle your case as quickly as possible and move on to the next client. “Settlement mills differ from conventional personal injury law firms in many obvious respects: They have higher claim volumes, advertise more aggressively, tout a different fee structure, settle claims more quickly and with less effort, file fewer lawsuits, and delegate more duties to para-professionals.” Source

Everyone who has been involved in a car crash and has an auto claim in Louisiana should be aware of the “No-Pay, No-Play” statute which bars recovery for the personal injury victim in certain circumstances.

Should You ‘Go It Alone’ for an Auto Claim?

You certainly could.  You could also hire a settlement mill, get a quick check and pay an attorney fee out of that money. Law Firm offers an alternative. We are incentivized to get you THE MOST for your claim because the more you get, the more we make. We have a low volume of cases, associate expert trial attorneys (for no added cost) and do what is necessary to get full compensation for you auto claim.

We offer free consultations and would be happy to discuss your case with you.

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roadway defect car crash

Roadway Defect Car Crash: Who Is Responsible?

In Roadway Defect Cases, Sometimes “The King can do no wrong.”

Under most laws in the United States, the federal government as well as state and tribal governments generally enjoy sovereign immunity from lawsuits for a roadway defect. In some narrow matters, this immunity has been waived by law. Local governments in most jurisdictions enjoy immunity from some forms of a suit, particularly in tort, or better known as personal injury cases.

The State and Local Governments are generally responsible for ‘local’ roads, including, in some instances, the Interstate Highway System within major metropolitan areas. So, if something goes wrong, on a completed section of highway or road, the person who is injured may face a situation wherein nobody is legally responsible for the damages, even death. If the roadway is under construction when an accident occurs, then a whole new set of issues develop.  Read post HERE.

Furthermore, the Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning “the king can do no wrong.

In some states, a very specific notice must be given to the municipality prior to suit.  These ‘State Tort Claims Acts’ usually require that a certain type of notice be given to the state within a certain period of time and containing specific information. Failure to provide this notice can cause a case against a state to fail and constitute a complete bar to an action.

In Louisiana, The State Can Be Sued for a Roadway Defect, Under Certain Conditions

In Louisiana, the right to sue the government is found in the Louisiana Governmental Claims Act, La. R.S. §§ 13:5101- 5113 (1975). Also, The State, a State agency, or a political subdivision shall not be immune from suit and liability for injury to person or property. La. Const. Art. XII, § 10. All Suits must be brought in Louisiana State Court, La. R.S. § 13:5106. The notice must be provided, and the notice deadline for a suit against the State is the equal to the normal statute of limitations for that type of claim. La. R.S. § 13:5108.

Furthermore, in Louisiana liability shall not be imposed on public entities or their officers or employees based upon the exercise or the failure to exercise their policymaking or discretionary acts when such acts are within the scope of their lawful powers and duties except for acts not reasonably related to governmental and acts which constitute fraudulent, or intentional criminal, misconduct. La. R.S. § 9:2798.1.

There is also a limit on certain damages at $500,000 per person for personal injury or wrongful death.  La. R.S. § 13:5106(B). Also, money for medical care post-judgment shall be placed in a reversionary trust which goes back to the political subdivision if not used. La. R.S. § 13:5106(B)(3)

Essentially, what this means is that in some cases you can sue the State, but with limitations. Also, monetary judgments won against the State won’t usually be paid without legislative approval.

Roadway Defect Cases are Difficult

Generally speaking, if a roadway defect causes a severe personal injury, the victims will understandably want to seek redress and compensation for those injuries. Going about that is not an easy process. This is because for an injured roadway defect personal injury victim, it needs to be shown and proven that (1) there exists a right to sue; (2) the suit is filed in a timely manner with proper notification; (3) there was a defect; (4) the defect was a cause-in-fact of the accident; (5) that injuries were sustained; and (6) the value of those injuries. Even after that, collection against State and municipal governments can be challenging. Some insurance may exist, and, in other cases, the award would need to be appropriated from the budget, which many are stretched thin already.

If you suspect that you may have a roadway defect personal injury, contact the Law Firm. We offer free consultations and want to help you. Proving a roadway defect case is no easy matter, and Attorney Ed Kramer has the experience necessary to help you evaluate your claim, and decide the proper course of action.

10 Years of fatal wreck in Metro Baton Rouge

Screen shot of deaths in metro Baton Rouge for 10 years.

There has been a map of every fatality on US Roads and it is here.

State Transportation Departments Generally Responsible For Roadway Defects

Every State has some version of a transportation department. These government bodies are generally tasked with the maintenance and repair of highways. Depending upon where your roadway defect case occurred, laws will differ.  The following is a list of State Transportation Web Sites:

über car crash

Who is Responsible in an Uber Car Crash?

Popular Ridesharing Companies Responsibility in an Uber Car Crash

Popular ridesharing companies like Uber and Lyft have been becoming more and more popular, and driving more and more people, causing, unfortunately, more Uber car crashes. Often, in urban areas, such as Baton Rouge, Uber has quickly surpassed cab companies, for safety, cleanliness, convenience, and affordability. The process is simple – riders download the Uber App onto their phone, and they can simply and easily request and pay for rides. They can also track their requested driver’s location at all times. But, Uber is not flawless and there are instances when an Uber car crashes.

Uber Car Crashes are Complex

In an accident where Uber is involved, several potential individuals, companies, and insurance companies may be responsible for your damages. In this way, Uber car crash cases can be extremely complex.

For example, most Uber cars are owned by individuals, and their insurance may or may not cover the Uber car crash. Uber has tried to distance itself from its drivers when they behave negligently behind the wheel or are deemed ‘at-fault’ for a motor vehicle accident. However, more recent cases have shown that Uber can share in the liability.

If you have been injured in a car crash involving an Uber ride vehicle, can help. We can discuss the facts and circumstances of your case with you and can file claims against all necessary parties on your behalf, helping to maximize your potential recovery.

Employees versus Independent Contractors

Although Uber requires its drivers to undergo thorough background checks and carry their own motor vehicle insurance, Uber drivers are not employees of Uber. Rather, they are independent contractors. The difference between an employee and an independent contractor largely rests with the amount of control the company has over the worker, whether the worker sets his or her own schedule, and how the worker is paid (e.g., salary versus contract work). In the world of personal injury lawsuits, this distinction can make a significant difference.

In past cases, Uber has tried to distance itself from its drivers when they behave negligently behind the wheel or are deemed ‘at-fault’ for a motor vehicle accident. However, more recent laws have required Uber to cover its riders, but a coverage gap remains in many Uber car crashes.

If you are an Uber Driver, Louisiana insurers are now offering a few options for coverage for your business.

Responsible Parties

In the case of a car crash involving a negligent Uber driver, the following parties could potentially share in the liability:

  • The Uber driver
  • Uber – the company
  • The insurance company

As an experienced Baton Rouge Car Crash Attorney, Ed Kramer and the Personal Injury Law Firm can help you. Typically, claims are made against all of these parties in order to safeguard liability and maximize the potential recovery in the case. However, each of these entities will often attempt to have an injured plaintiff sign an agreement that potentially limits settlement and/or prohibits the injured plaintiff from taking further legal action.

An injured plaintiff should never sign such an agreement (at least without first consulting with a lawyer), as he or she could potentially lose thousands of dollars in recovery and/or monetary damages.

Furthermore, studies have shown that “Settlement Mills” may not fight for your maximum case value and succumb to advising you to accept a “quick check.”

How Much is Your Uber Car Crash Case Worth?

Many people who are injured in Uber car crashes are anxious to find out the value of their personal injury case.  But, like car accidents, there are many unique factors to each case. There is no way to determine how much a case is worth without conducting a thorough analysis of all of the facts. Any estimate of what your case is worth is merely speculation until the facts of the case are all established and the case actually settles or a judge or jury make an award.

In many car accidents, the following damages are to be considered, both in the future and in the past:

  • medical expenses
  • lost income
  • property damage
  • physical and emotional pain and suffering

Like in most accidents, a few of the considerations that can affect the value of your Uber car crash claim are:

  • Your occupation
  • The severity of your injuries
  • Your age
  • Your prognosis
  • Whether you were partially at fault for your accident

Contact a Baton Rouge Uber Car Crash Lawyer Today to Discuss Your Case

If you have been injured in an Uber car crash, you need experienced legal representation. The Uber company, like many companies and insurers, has a vast number of attorneys and lobbyists at its disposal who will use all legal means necessary to limit – or eliminate – Uber’s potential liability exposure. Personal Injury Law Firm offers free consultations in Uber car crash and other accident casesTo schedule a free consultation with a Baton Rouge Uber car crash attorney, call today at (225) 933-1500 or contact us online.