Presented by Jim Gill
Presented by Jim Gill
Are GREAT at ◦ Medical lingo ◦ “Forms” lingo ◦ Calculating stuff
Are less GREAT at ◦ Liability/negligence determinations ◦ Being “plaintiff attorneys”!
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
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
…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)?
Comparative Fault
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!
Duty owed Duty breached Proximate cause Actual damages
Auto Claims
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
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?
Is there recovery potential vs. a property owner who created a sight obstruction for traffic?
Premises Claims
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
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?
Was the property well-lit?
If there was liquid/debris on the floor, was their a “reasonable” cleaning/maintenance schedule?
And, did the property owner try to warn of the dangers?
Were there physical defects that should have been discovered/repaired?
Were there code violations (stairways, handrails, etc.)?
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?
Products Liability
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
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
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
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
We all know tires shouldn’t do this…
And saw blades shouldn’t do this…
A product can also be “defective” if it has: ◦ ◦ ◦ ◦
Improper Improper Improper Improper
instructions or safety warnings or missing safety guards/shields or missing safety interlock devices or missing shutoff switches/devices
Products can be defective without the appropriate warning labels…
Products can be defective without the appropriate guards or shields (which this table saw does have to prevent kickback)
Products can be defective without safety interlock devices…
Products can be defective without the appropriate safety features (i.e., tip-over switches, overheating sensors, circuit-breaking technology)
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?
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
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!
Are GREAT at ◦ Medical lingo ◦ “Forms” lingo ◦ Calculating stuff
Are less GREAT at ◦ Liability/negligence determinations ◦ Being “plaintiff attorneys”!
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
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
…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)?
Comparative Fault
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!
Duty owed Duty breached Proximate cause Actual damages
Auto Claims
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
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?
Is there recovery potential vs. a property owner who created a sight obstruction for traffic?
Premises Claims
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
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?
Was the property well-lit?
If there was liquid/debris on the floor, was their a “reasonable” cleaning/maintenance schedule?
And, did the property owner try to warn of the dangers?
Were there physical defects that should have been discovered/repaired?
Were there code violations (stairways, handrails, etc.)?
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?
Products Liability
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
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
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
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
We all know tires shouldn’t do this…
And saw blades shouldn’t do this…
A product can also be “defective” if it has: ◦ ◦ ◦ ◦
Improper Improper Improper Improper
instructions or safety warnings or missing safety guards/shields or missing safety interlock devices or missing shutoff switches/devices
Products can be defective without the appropriate warning labels…
Products can be defective without the appropriate guards or shields (which this table saw does have to prevent kickback)
Products can be defective without safety interlock devices…
Products can be defective without the appropriate safety features (i.e., tip-over switches, overheating sensors, circuit-breaking technology)
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?
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
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!
