Washington State Association For Justice Blog

SCIAW Lauches Its New Site: New NonProfit Organization for Spinal Cord Injury Survivors & Supporters

The new nonprofit organization, the Spinal Cord Injury Association of Washington (SCIAW) SCIAWlogo_C_web.gifis pleased to announce its launch of its new site, SCIAW.org.  SCIAW.org provides resources for those surviving or supporting spinal cord injuries (SCI) with focus of those in Washington State. SCIAW’s parent organization is the Christopher and Dana Reeve Foundation. 

In the fall of 2010, SKW partner Karen Koehler created SCIAW in association with Dr. Charles Bombardier, Ph.D, Project Director for the Northwest Regional Spinal Cord Injury System; Vivian Moise, MD, the Medical Adviser/Director for the SCI Program at St. Luke’s Rehabilitation Hospital (Spokane, WA); Anthony Choppa, M.Ed, Owner of OSC Vocational Systems, Inc.; and Jesse Magana, spinal cord injury advocate.

SCIAW is a Washington State nonprofit 501(c)(3) organization that supports all of the interests of SCI survivors, regardless of the cause of the injury or the severity of the impairment.

For more information and to donate, please visit SCIAW.org today!

Defendant Tries To Dodge Responsibility Although Its Driver Was High

By Karen Koehler

In the evening of October 5, 2006, you have a few drinks and smoke a bowl of marijuana.   The next morning you get up early for your new job driving a truck for a window company.  What better way for you to start your day, than to smoke another bowl as you are walking out the door.  In fact, you like this routine so much that you start off every morning this way.

You get to work, get in your truck and head out.  In the middle of making deliveries, you decide to turn around.  You are on highway 99 and make a left turn intending to go around the block.  All of a sudden, your truck feels like it’s been struck by a bomb.  It lurches forward.  And you sit in your seat thinking.  Uh Oh.

You are scared to get out of your truck.  You have a pretty good idea what you’re going to see when you do.  You sit in your seat and get up the nerve to call your boss.  By now you can see other people rushing around and assume someone else has called 911.   Time seems to take forever and you don’t know how long you sit there.   Eventually you get out of your truck, walk around the right front end and stand there, looking down the length of it.  You can see the people huddling around something that looks like the back of a car.  The front of it is under the truck. 

Photo of Maislen's Car After Crash

You don’t walk up to see if you can help.  You don’t want to see whatever is in that wrecked red pile of shredded metal.  You stay right where you are until you can hear the sirens.  You back away.  Away from the dread of knowing that there is someone half under your truck.  You can barely see his outline.  And that’s the last time you ever see Marc Maislen.

Years pass, and it is April 2010 and you are in court.  Mr. Maislen has sued you.  The company’s insurance company does not offer enough to settle the case.  You are facing a full jury trial.  The insurance company at first tried to claim that Mr. Maislen was at fault.  For years, they denied that you were responsible.  Even though you gave the police your pot and pipe that were in your coat pocket.  Even though you admitted that you were high.  Even though you were convicted of a crime and went to jail.   The insurance company tried to blame him.  Until a few months before trial.  They decided they better admit fault.  They told the judge they would agree you caused the wreck.  But they also wanted to keep the jury from ever knowing that you were high.    

Juries are almost never told when a defendant is drunk or high so long as they admit fault.  But this case is different.  Mr. Maislen has post traumatic stress disorder.  Knowing that you were high when you almost killed him, has made him more fearful of driving.  It caused him panic attacks.  Judge Gonzales rules the jury needs to know the reasons why Mr. Maislen claims an injury, since your insurance company is fighting this.  And so on the first day of trial, the jury is told of your behavior.

Your insurance company is very upset.  They cannot believe the jury is being told you were high.  This almost never happens.   Instead of being able to have the jury look suspiciously at Mr. Maislen for bringing a lawsuit.  They are looking at you. 

Over the next several weeks, Mr. Maislen’s attorneys Karen Koehler and Mimy Bailey tell the jury the story of Mr. Maislen’s life.  All the bones and joints that were broken, the nerves that were blown away, the traumtic brain injury, and the emotional injuries.  Mr. Maislen was beloved by many.  Over thirty witnesses testify for him.  The insurance company hires experts to minimize Mr. Maislen’s claims.  But at the end of the day, the jury has the final say.  And they say that Mr. Maislen deserves a verdict for full justice.

Elder Abuse & Neglect Law Blog

Tax Ramifications in Sex Abuse Cases

We learned a great number of valuable lessons from a recent case against a Native American Tribe and wanted to make sure to pass on at least one of these lessons here. I’ll just mention one for this post and perhaps save the rest for future posts: Remember to think about taxes, especially if you want a settlement to be considered tax-exempt.

A recent case involved a client, who was raped by a juvenile offender. That juvenile was a member of a Native American tribe and had a long list of criminal convictions who had been subject to an equally long list of court orders and restrictions. As a ward of the tribe, his actions were under the control of the tribe’s Indian Child Welfare Department. We thought the department had abrogated its responsibilities and acted negligently in several of its decisions and actions, which all led inexorably to the rape of our client. We decided to sue the tribe for the injuries our client suffered. We eventually settled the case for $1 million

Here’s where the issue of taxes enters the picture: In 1996, the “physical” was inserted into the Internal Revenue Code 104(a)(2), requiring that for a settlement to be considered tax-exempt and eligible for a tax-exempt structured settlement, it must have its origin in physical personal injury or physical sickness.  For a settlement to have its origin in physical injury and thus be tax-exempt under IRC 104(a)(2), there must be some Observable Bodily Harm (“OBH”).  Some examples of OBH include bruises, scratches, swelling, cuts and bleeding.

Since 1996, the taxation of damages received from sex abuse cases has been particularly problematic.  Sex abuse cases inherently involve issues regarding the preservation of evidence of physical harm.  By the time the abuse has been reported or the victim can articulate the abuse, any physical injuries may have healed leaving little or no evidence of physical injury.  This can make it difficult to meet the OBH standard to satisfy the physical injury requirement of IRC 104(a)(2).

The complaint or settlement demand documentation remains a critical piece of the puzzle.  If these documents allege only non-physical injuries such as the intentional or negligent infliction of emotional distress, classifying the damages as taxable is consistent with the pleadings.   Therefore, remember to include details of physical injury as the origin of a claim in your complaint or settlement demand, to support the position that the settlement is tax-exempt as being based in physical injury.  Also remember to collect and preserve proof of any physical injury whenever possible, as additional support just in case. 

When closing a sex abuse case, the negotiation and finalization of the settlement can also help ensure that the damages will be classified as unambiguously tax-exempt.  Do the parties, and most particularly the payor, intend the payment as compensation for personal physical injuries?  If so, the settlement documentation should specifically state such intent.  Be sure that you insert the necessary language in your pleadings and in any settlement documents in order to avoid adverse tax consequences.

 

The Insurance Industry’s Propaganda Machine

One of my pet peeves is the attitude of people about personal injury lawsuits.  So many are critical of such suits because of the propaganda machine of the insurance industry and the Chambers of Commerce that have filled their heads with so many lies.  But many don’t seem to understand the consequences of denying people a recovery for their injuries caused by the negligent conduct of others.

In many instances where people have suffered severe injuries as a result of the negligence of others, their only hope of a private method of compensation is a lawsuit. They have staggering medical bills; they cannot work because of their injuries.   If they are denied a recovery, their only recourse is to have the government pay the bills.  So this propaganda scheme is really one of transferring the cost of injuries from negligent conduct from the insurance companies who were paid a premium to cover these risks, and instead transfer the cost to the taxpayer.  Taxpayers should be offended!

So the next time you hear an offensive story about a personal injury lawsuit, look at the source of the story and determine the true facts.  It is probably an insurance company that is trying to get the taxpayers to pay for the bill so that they can keep the insurance premium.

 

Suing the Government – Firefighters Can Sue Their Employer

A lot of people don’t know that a firefighter can sue his employer for negligence.  A lot of lawyers don’t seem to know this either.  The law of Washington is that generally an employee cannot sue their employer for simple negligence.  Instead the system is run by Labor & Industries in a no-fault system with limited benefits.  But the Legislature made an exception for firefighters and police officers several years back.

Along with Ron Meyers and his staff, we have handled a number of such cases.  A recent case involved a hose testing operation.  A hose testing device is required when these exercises are performed.  But instead, the officer in charge ordered that the testing be done without this protective device.  Unfortunately, the hose burst during the test, and our client was hit by the highly pressurized hose.  He severely injured his leg and his back.  He had incurred medical bills of over $160,000 and lost over $200,000 in wages.  He also permanently lost the ability to work as a firefighter, something that had always been his calling.

This unique law does have a twist.  Normally if you sue a third party when you are receiving L&I benefits, you then are required to reimburse L&I.  In this instance, however, you do not reimburse L&I, but your recovery against your employer is limited to damages in excess of what L&I has paid.  It is a twist that can create a number of confusing issues in a trial. 

 

Premises Liability – The Dangers of Restaurant Play Areas

These restaurants that cater to children with play areas and equipment need to make them safe.  Theyplay-area-1-1.jpg encourage these kids to play and climb, but then sometimes leave them exposed.

We had a case against Carl’s Jr. Restaurants.  Our 4 year old client was on the play equipment.  Mom was sitting nearby.  There was a gap between the wall and the netting that allowed entry behind the equipment. Our inquisitive youngster, like most kids, was able to find this gap and used it to gain entry to the area behind the equipment.   The youngster then had crawled up the back of one the tubes, lost his grip and fell about 10 feet to the solid floor below.  Unlike the floor that is padded inside the equipment, in this area the floor was solid concrete.  The boy suffered a significant traumatic brain injury that will impact the rest of his life.

play-area-4-4.jpg

As unbelievable as it seems, store personnel had seem other kids gain access to the back of the equipment on prior occasions, but the manager was concerned about overhead, and refused to have the gap plugged of otherwise covered.

Experts were quick to criticize this design that would leave such a gap.  These kids are encouraged to be climbing all over this enticing equipment; these restaurants need to make sure they are safe.

We secured a $2 million settlement for this youngster, and have the money tucked away in a structure to assist him for life.  Too bad they didn’t fix this before he had his fall.

 

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