Personal Injury Updates

Information about Personal Injury in Washington State

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Monthly Archives: August 2011

Change of Job, Change of Coverage: What About Pre-existing Conditions?

Categories: Practical Tips You Can Use

By PI-Advisor. Posted on .

When it comes to health insurance, pre-existing conditions are a big issue for people facing loss or change of coverage.  Federal and state laws make the issue murky since different rules apply to different types of group plans.

First, what is a pre-existing condition?  Basically, it is any physical condition that existed prior to a certain point in time.  For our purposes, that point in time is the start date of a new health insurance policy or the start date of your waiting period.  For insurance purposes in Washington, a pre-existing condition is a physical condition for which a person received medical care or was advised to receive care within 6 months of the coverage start date.

Second, different plans are dictated by different rules.  Some plans are created and regulated under a federal law known as the Employment Retirement Income Security Act (ERISA).  Other health plans are governed by state law.  You may need to ask your employer to find out which kind of plan you are on.

Here are the basic pre-existing condition exclusion rules for group coverage in Washington currently:

  1. Self-funded employers (ERISA) can exclude pre-existing conditions for 12 months.
  2. State regulated plans with 50 or more eligible employees can exclude pre-existing conditions for 3 months.
  3. State regulated plans for small groups (2 to 50 employees) may require a 9-month exclusion period.

If you have coverage at one job then change to the new insurer at a new job, the new insurance company must give you credit for the coverage you had with Employer 1 as long as you have not had a significant lapse in coverage (defined as 63 or 90 days, depending on the plan).  If, for example, you had continuous coverage for 2 years and the new carrier would impose a 9-month pre-existing exclusion, the new carrier has to give you credit for the prior 2 years of coverage.  In effect, they will not exclude pre-existing conditions as long as you have not had a break in coverage between the policy periods.  If you had coverage for 2 years on one plan then had 4 months with no coverage (lapse in coverage), the new carrier would not have to give you any credit for your prior coverage and could impose the maximum exclusion period.

Talk to your employer or insurer about what type on plan you have and what you can expect regarding pre-existing conditions if you are faced with a change of coverage.

Recreational Activity and Assumption of the Risk

Categories: Premise/Slip and Fall

By Arthur D. Leritz. Posted on .

By now, most of you have already heard about the tragedy that occurred at the Indiana State Fair on Sunday when a stage collapsed, killing five people.   Apparently the rigging and lighting equipment was brought down by high winds in that tragic incident.  While it may seem like a freakish accident, is someone ultimately responsible for allowing this to happen?  Could this have been prevented?  Is this the type of risk one associates with going to an open air concert at a State Fair?

Hopefully, most of you are aware that when you purchase a ticket for a concert or sporting event, there is usually language on the back of the ticket that absolves the promoter or event organizer from any liability for risks inherent in the activity.  By going to these events, you “assume the risk” for any injuries that may occur for known risks associated with that activity and this acts as a bar to recovery.  For example, getting hit by a baseball at a baseball game is a known risk, as is injury from racing a go-kart around a track – as well as injury sustained while dancing in a “mosh pit” at a concert.  If you are injured in these situations, you likely will not be able to make a claim against the team, stadium owner or event organizer.   However, what if you are injured in a go-kart because there was standing water on the track, or the go-kart was missing a key piece of safety equipment?  What if you were hit by a foul ball because the net that was supposed to protect you was not in place, or was installed incorrectly? Or, what if you were injured because a stage collapsed at a concert?

So what is assumption of risk?  In its simplest form, “assumption of risk” means that the injured party, prior to the incident complained of, gave his or her consent to relieve the potential at-fault party of an obligation of conduct toward him, and agreed to assume a chance of injury from a known risk arising from the obligation for which the at-fault party has been relieved.  In Washington State, there are two main types of assumption of risk:  express and implied.

Express assumption of risk is generally bargained for and found in a contractual relationship.  A person expressly assumes the specific risk of harm if that person:

  1. has full subjective understanding;
  2. of the presence and nature of the specific risk; and
  3. voluntarily chooses to encounter the risk.

Implied assumption of risk operates in the same way as express assumption of risk, but without the additional ceremonial and evidentiary weight of an express agreement.  It has also been held to apply where you impliedly consent to relieve the at-fault party of a duty to yourself about specific, known, and appreciated risks, and you engage in conduct, from which consent is implied.  In that situation, the at-fault party bears the burden of proving that you knowingly and voluntarily chose to encounter the risk.

In either express or implied assumption of risk, the key is subjective knowledge of the presence and nature of the specific risk.  If you are injured while engaging in a recreational activity or while attending an event and are confused about your rights and duties in that situation, the attorneys at Adler Giersch are willing and able to assist you.

Distracted Driving: A Serious Problem

Categories: Auto Accidents

By Jacob W. Gent. Posted on .

Everyday, more than 15 people are killed and over 1,000 more are injured in motor vehicle collisions involving a distracted driver.1 Distracted driving, or driving while performing another activity which shifts your attention from operating a motor vehicle, is classified in three main categories: visual (taking your eyes of the road), manual (taking your hands off the wheel), and cognitive (taking your mind off what you are doing).

Common activities which cause distracted driving include eating, reading a map or other material, writing a note, personal grooming, adjusting the car stereo, using a cell phone or in-vehicle navigation device.  But according to the US Department of Transportation, texting and driving is the very likely the most dangerous activity, because it involves all three forms of distraction.2

Here are some alarming statistics about distracted driving3:

  • Over 5,400 people were killed and 448,000 people were injured in crashes which involved a distracted driver in 2009.
  • Of those injured or killed in 2009, use of a cell phone was a major contributing factor in almost 1,000 deaths and 24,000 injuries.
  • The proportion of drivers reportedly distracted at the time of a fatal crash has increased from 7 percent in 2005 to 11 percent in 2009.

A recent CDC study examined the frequency of cell phone use and texting among drivers in the United States. Results included4:

  • 25% of drivers reported that they talked on their cell phones while driving “regularly or fairly often.”
  • 75% of drivers ages 18 to 29 reported talking on their cell phone while driving at least once in the past 30 days, while nearly 40% reported talking on the phone and driving “regularly” or “fairly often.”
  • Nearly 1 in 10 drivers reported texting or e-mailing while driving “regularly or fairly often.”
  • Over half (52%) of drivers ages 18-29 reported texting or e-mailing while driving at least once in the last 30 days, and more than a quarter report texting or e-mailing “regularly” or  “fairly often” while driving.

Although many states and municipalities have enacted laws5 to curtail drivers from using cell phones while operating a motor vehicle, the prevalence and associated danger distracted driving continues to grow.  I encourage all motorists to take adequate precautions when using cell phones while driving, such as using a hands free device, accepting calls only when absolutely necessary, and limiting the duration of a call to a bare minimum.  And no one should try to text and drive.

 

 

 

1. National Highway Traffic Safety Administration (NHTSA). Traffic Safety Facts: Distracted Driving 2009. Washington, DC: US Department of Transportation, National Highway Traffic Safety Administration, September 2010. Publication no. DOT-HS-811-379. Available from http://www.distraction.gov/

2. National Highway Traffic Safety Administration. Statistics and Facts about Distracted Driving. Washington, DC: US Department of Transportation, National Highway Traffic Safety Administration, 2011.

3. NHTSA Publication no. DOT-HS-811-379.

4. Porter Novelli. (2010). HealthStyles 2010 Survey. Unpublished raw data. Washington, DC: Adam Burns.

5. For example, in Washington State effective July 2010, it is primary offense for drivers to talk on a cell phone without using a hands-free device.  RCW 46.61.667.   Texting and driving is strictly prohibited by statute.  RCW 46.61.668.