Presented by Jim Gill

Transcription

1 Presented by Jim Gill

2 Are GREAT at Medical lingo Forms lingo Calculating stuff Are less GREAT at Liability/negligence determinations Being plaintiff attorneys!

3 TWO-year statute of limitations for negligence claims vs. private entities Year #1: Claimant has exclusive recovery rights Claimant needs to Settle and pay the WC lien File a lawsuit Get a reassignment form the WC carrier/self insured Year #2: WC carrier/self insured has exclusive recovery rights if there was no settlement, suit or reassignment

4 ONE-year statute of limitations for negligence claims vs. public entities ONLY if you file a statutorily compliant notice of claim within 180 days after date of loss/discovery of negligence-based damages Injured worker and WC carrier/self insured s rights against responsible third parties run concurrently Unless the injured worker settles/repays the WC lien, or gets a reassignment, or files suit, the WC carrier/self insured needs to file a notice of claim within 180 days and suit within one year

5 won t THEY be the ones to figure that out? won t THEY be the ones to hire an attorney and pursue a claim (on which I can assert a lien)?

6 Comparative Fault

7 AZ is a pure comparative state If a third party is even 1% at fault for injuring an employee, they pay 1% of the total damages DON T assume there s no recovery potential just because your claimant was mostly (maybe even 99%) at fault for causing their own injuries. Even 1% of what you ll pay on a serious injury claim can be a big number!

8 Duty owed Duty breached Proximate cause Actual damages

9 Auto Claims

10 Rear-end auto accidents Left turn accidents Failure-to-yield accidents Other vehicle ran a stop sign or red light Other vehicle emerging from a private drive

11 What if it looks like your employee caused the accident? Maybe he/she did but were they really 100% at fault? What do witnesses say? What does the police report say What do accident scene photos tell you?

12 Is there recovery potential vs. a property owner who created a sight obstruction for traffic?

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16 Premises Claims

17 If you re on someone else s property, you re either An invitee/business invitee Invited by the property owner, generally to benefit the owner (i.e., store customers) Owner has a duty to make the property reasonably safe A licensee Enters property for his own purpose, or as a social guest, and is present at the consent of the owner, usually for a business purpose Owner has a duty to warn of known hazards A trespasser On the property without the owner s permission Owner has duty not to intentionally injure or set traps

18 Determine your employee s status on the property Determine what duties the property owner owed the employee Were those duties breached? Was that breach the proximate cause of your employee s injuries?

19 Was the property well-lit?

20 If there was liquid/debris on the floor, was their a reasonable cleaning/maintenance schedule?

21 And, did the property owner try to warn of the dangers?

22 Were there physical defects that should have been discovered/repaired?

23 Were there code violations (stairways, handrails, etc.)?

24 Were there prior complaints about conditions? (i.e., was the property owner on notice of a dangerous condition?) Even more important, did the property owner pay any prior damage claims as a result of the condition?

25 Products Liability

26 The manufacturer owed a duty to the injured party The manufacturer breached that duty The breach of duty was the cause of the injured person s injuries The injured person suffered actual damages as a result of the breach

27 Express warranties Specific claims made about a product Implied warranties Of fitness for a particular purpose Products should be fit for normal use and foreseeable misuse

28 Defenses against product liability claims include: Misuse (non-foreseeable) by the injured party Product alteration (either by the end user/injured party or by someone in the stream of commerce) Unusual reaction (ex.: a 1-in-a-million allergy or sensitivity to a medicine, lotion, etc.) Product design/materials were state of the art at the time of manufacture

29 Stream of commerce Includes EVERYONE who was involved in the sale or distribution of a product, starting with the manufacturer If you are pursuing a products liability claim, the general rule would be to put everyone on notice and let each party Document they didn t alter the product while it was in their care, custody and control Tender the defense of the claim upstream toward the manufacturer

30 We all know tires shouldn t do this

31 And saw blades shouldn t do this

32 A product can also be defective if it has: Improper instructions or safety warnings Improper or missing safety guards/shields Improper or missing safety interlock devices Improper or missing shutoff switches/devices

33 Products can be defective without the appropriate warning labels

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38 Products can be defective without the appropriate guards or shields (which this table saw does have to prevent kickback)

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40 Products can be defective without safety interlock devices

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42 Products can be defective without the appropriate safety features (i.e., tip-over switches, overheating sensors, circuit-breaking technology)

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44 Was the product safe for regular use and foreseeable misuse? Were the instructions and warnings sufficient? Were there appropriate safety interlocks? Were there appropriate shut-off switches?

45 1. If the facts are against you, argue the law 2. If the law is against you, argue the facts 3. If the facts and the law are against you, yell like hell

46 You do NOT have to compromise your comp lien (and there s no need to do so on a great liability case!) When a plaintiff attorney tells you to compromise your lien because his liability case (and yours) is falling apart Know enough to make YOUR OWN liability analysis! Requests copies of expert reports, deposition transcripts, and other discovery documents He probably just got done telling the liability DEFENSE attorney the exact opposite i.e., that is liability case is GREAT!