Personal Injury Updates

Under the Insurance Fair Conduct Act (IFCA), your automobile insurance company must settle your vehicle damage claim in good faith.  Your insurer must:

• make a good faith effort to communicate with the repair facility of your choice;
• not arbitrarily deny your repair estimate;
• not require you to travel unreasonably to obtain an estimate, repair your car or obtain a loaner car;
• provide you with a copy of the estimate it prepares, or disclose reasons for denying your estimate;
• provide a list of repair facilities within a reasonable distance of your principally garaged area;
• consider any additional (related) damage the repair facility discovers during repairs;
• limit deductions for betterment/depreciation to parts normally subject to repair and replacement during the life of your vehicle;
• not recommend that you make a claim under your own collision coverage, if liability and damages are reasonably clear, solely to avoid paying claims under the liability insurance policy.[i]

If your vehicle is rendered a “total loss” after a collision, then your insurer must follow this established protocol:

1. Replacing the loss vehicle: replace your vehicle with a comparable one that is available for inspection within a reasonable distance from where your vehicle is principally garaged.
2. Cash settlement: based on the actual cash value of a comparable vehicle.
3. Appraisal: resolve appraisal disputes per the policy terms.
4. Settlement requirements: When settling a total loss vehicle per subsections (1) through (3) above, the insurer must:

a.  communicate its settlement offer to you by phone or in writing;

b.  base all offers on itemized and verifiable dollar amounts for vehicles that are currently available, or were available within ninety days of the collision, using appropriate deductions/additions for options, mileage or condition;

c.  consider relevant information supplied by you;

d.  provide you with a true and accurate copy of any “valuation report;”

e.  include all applicable taxes and fees.[ii]

Finally, your insurer shall not refuse to settle any property damage claim under your automobile policy based upon your refusal (or delay) in responding to your insurer’s demand that you submit to an independent medical examination in connection with your Personal Injury Protection (PIP) claim.

Chances are, if you own a car or have watched the news lately, you are familiar with vehicle recall notices issued by the National Highway Traffic Safety Administration (NHTSA) for vehicle defects that can potentially be dangerous.  A safety recall can either be initiated by a NHTSA investigation or by the manufacturer.  Once aware of a potential safety issue, the manufacturer is obligated to notify the owner that the vehicle has a problem that affects its safety.  The owner then can have the car fixed, free of charge.

What I was surprised to learn back when I bought my first car is that this strict notification system only applies to safety issues – not technical service bulletins or other issues not affecting driver or passenger safety.  A “technical service bulletin” is created by the manufacturer and deals with parts or service issues that have cropped up after a vehicle is manufactured, but that typically do not affect the car’s safety.

In my case, a few years ago I took my then new car to the dealer because the MIL (malfunction indicator light) kept coming on.  An annoying problem, but the car seemed to drive fine otherwise.  Once the problem was identified (a defective mass airflow sensor) it was easily fixed – but the dealer wanted to charge me several hundred dollars for the fix.  Fortunately, the nice person at the counter looked up the service bulletin for my year and model and was able to quickly determine that the part was defective and that the dealer was replacing these parts free of charge.

I was fortunate that I had an honest counter representative, but others may not be so lucky.  I can see how a person could be taken advantage of in this situation.  Fortunately, NHTSA maintains a database of all technical service bulletins for all makes and models and there are other web sites that provide a similar service.

So, if your MIL comes on or your car is performing poorly, go online and see if there are any technical service bulletins for your car.  It could mean the difference between and expensive fix and a free one.

Two cases¹ recently decided by the Washington State Supreme Court clarified an existing rule which requires insurance companies who provide Personal Injury Protection (PIP) benefits to pay a fair share of legal costs incurred by injured persons who recover those benefits paid on behalf of the insurer.

As a rule, plaintiffs must pay their own attorney fees and costs when bringing legal action against another party.  However, there are certain exceptions.  In claims involving a motor vehicle collision, an injured party whose medical bills are paid by PIP insurance is required to reimburse the PIP insurer for those benefits paid from any settlement or judgment obtained from the at-fault party.  Under the “equitable fee sharing rule” first announced in Mahler v. Szucs², a PIP insurer is required to pay a pro rata, or proportionate share of the legal expenses incurred by the injured person who recovers from the third-party and reimburses the PIP carrier for those benefits paid.³  The PIP carrier typically contributes to those legal expenses by reducing the amount it is entitled to receive from the settlement.  The Mahler court reasoned that any recovery obtained by the injured person from a third party created a “common fund” from which the PIP insurer benefited and held that a PIP insurer could not benefit from the efforts of the injured party (and their attorney) in recovering the PIP benefits paid without contributing to the expenses incurred in securing that recovery.

Later cases expanded the Mahler rule to include situations where the injured party recovered funds from both the underinsured at-fault party and their own Underinsured Motorist (UIM) coverage⁴; and where the at-fault party was uninsured and the injured person received benefits under both the PIP and Uninsured Motorist (UM) coverage.⁵

In Matsyuk, the plaintiff was a passenger in a motor vehicle who was injured by the driver’s negligence.  Matsyuk’s medical bills were paid by the driver’s PIP coverage with State Farm.  Matsyuk later settled her negligence claim against the driver under their liability coverage, also with State Farm Insurance.  State Farm sought reimbursement of its previous PIP payments through an “offset,” or reduction, against the liability payment to Matsyuk.  Matsyuk demanded State Farm pay their a pro rata share of her legal expenses in accordance with Mahler.  State Farm argued it was not required to reduce its reimbursement claim under Young v Teti,⁶ a Court of Appeals decision which held a plaintiff was not entitled to recoup a pro rata share of attorney fees where the liability insurer and PIP insurers were the same.
The Court of Appeals upheld State Farm’s argument.  The supreme court reversed the appellate court, stating the Young decision was inconsistent with the Mahler rule, subsequently expanded by Winters and Hamm.

The Matsyuk decision is an important victory in that it further establishes a clear, consistent rule regarding the obligation of an PIP insurer seeking reimbursement of benefits paid to contribute to the legal expenses incurred by the injured party who secures that reimbursement.

Many of us see things that are outrageous every day – whether it’s on tv, in our community or on our daily commute to work.   Did you know that under Washington law there is an actual claim for outrage caused by a third party?  A claim for outrage is also known as the intentional infliction of emotional distress.  To recover for outrage, you must prove the following elements:

• Extreme and outrageous conduct;
• Intentional or reckless infliction of emotional distress; and
• Actual result to you of severe emotional distress.[1]

To prove extreme and outrageous conduct, it is not enough to show that the defendant acted intentionally or even criminally, or that he or she intended to inflict emotional distress, or even that his or her conduct can be characterized by malice.  Liability for outrage exists only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.

For example, a claim for outrage has been found to exist in the stalking of a former girlfriend[2] and an employer’s intentional exposure of employees to toxic chemicals[3].  The conduct must result in severe emotional distress to the plaintiff.  While bodily harm would be an indication of severe emotional distress, severe emotional distress short of bodily harm is sufficient.

At some point in your life, you’ve probably either owned a dog or had a dog in your family.   You love them, feed them, pamper them, and buy them whatever they need, but you probably have not thought about what could be the most important aspects of owning a dog – the potential liability a dog bite could bring and the injuries it can cause.

In the State of Washington, if you own a dog and it bites someone, you are strictly liable.  That means that the injured party does not need to establish any negligence on your part – simple ownership is enough.  In Washington State, an injured party needs to establish the following elements to make a claim against the dog owner under the strict liability rule:

1. That the defendant is the owner of the dog;
2. That the dog bit you; and
3. That you were in or on a public place or lawfully in or on a private place including the property of the owner of the dog when bitten.[1]

This strict liability applies regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.[2]  In other words, there is no “first bite free” under the law.  This strict liability does not apply in all dog bite situations.  For example, proof of provocation of the attack by the injured person is a complete defense to an action for damages.[3]  Also, strict liability does not extend to the landlord of the dog owner while the dog is on a rented or leased property.[4]

Dog bites and kids:

Especially alarming are the statistics for dog bites to young children.  According to the CDC:

•  50% of dog attacks involved children under 12 years old.
• 82% of dog bites treated in the emergency room involved children under 15 years old.
• 70% of dog-bite fatalities occurred among children under 10 years old.
• Bite rates are dramatically higher among children who are 5 to 9 years old.
• Unsupervised newborns were 370 times more likely than an adult to be killed by a dog.
• 65% of bites among children occur to the head and neck.
• Boys under the age of 15 years old are bitten more often than girls of the same age.[5]

What you can do:

There is no way to guarantee your dog will never bite someone, but there are things you can and should do to decrease the risk.  For example:

• Spay or neuter your dog to reduce aggressive tendencies.
• Properly train and socialize your dog, including teaching the dog submissive behaviors.
• Never leave infants or young children alone with a dog –even one they know, as children who are not properly educated can put themselves in danger unknowingly.
• Don’t chain up your dog.  Dogs who are chained up are 2.8 times more likely to bite due to increased agitation, stress and a perceived vulnerability.[6]  Have a secure fence with a lockable gate installed instead.

Educate your kids:

Since kids tend to be the biggest risk group and since their immune systems are not as fully developed as an adult’s immune system, proper education is vital to reduce the risk of a child getting bitten.  If you have small children, the following tips may help to reduce the risk of a dog bite:

• Do not approach an unfamiliar dog.
• Remain motionless when approached by an unfamiliar dog.
• Do not run from a dog or scream.  If knocked over by a dog, roll into a ball and lie still.
• Avoid direct eye contact with an unfamiliar dog.
• Do not disturb a dog that is sleeping, eating, or caring for puppies.
• Do not pet a dog without allowing it to see and sniff you first.
• If bitten, immediately report the bite to an adult regardless of the circumstances leading up to the bite.

If you have been injured by a dog or have any questions concerning the law or your rights and duties under the law, the attorneys at Adler Giersch, PS are ready and willing to assist you.

In 2007, the Washington state legislature passed the Insurance Fair Claims Act (IFCA) which provided Washington consumers a legal cause of action against insurers who violate their fiduciary duty to their policyholders. The Act permits the Office of the Insurance Commissioner (OIC) to penalize insurers for, among other things, improper denial of claims in “bad faith” and overcharging customers for insurance policy premiums. In 2010, the OIC levied $583,750 in fines against insurers doing business in Washington state. According to an article¹ in The Olympian dated April 7, 2011, the OIC has fined Washington insurers more than $167,000 in the first quarter of 2011 alone. Fines collected by the OIC are placed in the state’s general fund to pay for other state services.

Examples of fines and disciplinary actions in 2011 include:

• Aetna Life Insurance Company was fined $65,000 for violations, including unreasonably denying 220 claims for acupuncture treatment. In addition, the company refunded $16,427 to policyholders.

• Philadelphia based Ace American Insurance Company was fined $50,000 for using premium rates not filed with the state.

• Progressive American Insurance Company, Progressive Northwestern Insurance Company. and Progressive Max Insurance Company were fined $30,000 for improperly deducting sales tax and fees from cash value calculations in more than 1,700 auto claims. Another $415,299.00 was also refunded to its policyholders.

The insurance companies have responded. In an article by the Puget Sound Business Journal dated May 17, 2011, Karl Newman, president of the Northwest Insurance Council (NWIC) was quoted as saying:

Insurance companies have a fiduciary [duty] to pay every legitimate claim and deny everything that’s not covered under the contract … The law [IFCA] came from a flawed assumption [there wasn't enough protection in place for policyholders].”²

According to the NWIC, the Insurance Fair Claims Act has overburdened the insurance industry with unnecessary costs, causing insurance companies to compare the cost of paying a claim it considers fraudulent against the risk of defending its decision to deny a claim in court.

According to the NWIC, there has been a 9.3% increase of “questionable claims” in Washington state since 2008, costing an alleged $200 million in claims related costs. In spite of the claimed increase in indemnity and claims related expenses allegedly caused by IFCA, insurance companies in the state of Washington remain extremely profitable, collecting $8.4 billion in new premiums, while paying out $5.1 billion in claims in 2009, according to the OIC.

Anyone with a complaint against an insurer, agent or broker can contact the insurance commissioner’s office at 1-800-562-6900 or file a complaint at www.insurance.wa.gov.

1. http://www.theolympian.com/2011/04/07/1607393/olympia-fines-against-insurers.html

2. http://www.bizjournals.com/seattle/blog/2011/05/questionable-insurance-claims-jump-9.html

If you are having difficulties with your auto insurance claim (or any insurance claim), the Washington State Insurance Commissioner’s office may be able to help you resolve the problem.

After receiving your complaint, the Insurance Commissioner will investigate the matter to see if the insurance company is in compliance with the law.   The insurance company is required to respond to your complaint in writing to the insurance commissioner within a set period of time.

For more detailed information about what the Office of the Insurance Commissioner can do for you, and to complete the complaint form online, go to: http://www.insurance.wa.gov/.

Personal Injury Terms – Unless you are an attorney, or work for an attorney, many terms such as affidavit and tortfeasor may seem foreign.  After one has been involved in an auto accident, these legal terms will become everyday vocabulary.  It’s important to understand key terms.  Here is a helpful link to common personal injury terms used in personal injury cases.  http://www.adlergiersch.com/order-brochures