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2013 Year in Review: Personal Injury

You have spent the year busy practicing law and taking care of clients. With everything on your plate, there just are not enough hours in the day to keep up with all the developments in your field. To make your lives a little easier as you wind up the year 2013 and start 2014, we have put together a summary of some of our most popular tips, as well as highlights and developments from the land of personal injury law.

I. Personal Injury Practice Tips

Having a checklist for the basics of your personal injury practice can be extremely helpful. Whether you are just starting out, or you've been practicing for years and just prefer not to reinvent the wheel every time a new case comes in, our articles on Organizing Your Personal Injury Cases: A Step by Step Checklist, and Ten Tips for Writing an Effective Demand Letter are here to help you streamline your practice.

II. Liens

Liens have no doubt overtaken personal injury cases, causing substantial headaches for practitioners. Our article, 7 Steps to Approaching Lien Claims in Personal Injury Cases provides you with a framework for how to deal with this ever-growing issue for personal injury attorneys. This series also addresses specific tips for particular types of lien claims: hospital, med-pay, ERISA, Medicare and health insurance. A general overview of this information is also available in a downloadable pdf format.

This area of law is also constantly evolving so it is important to keep up to date on any developments. This year's developments included the U.S. Supreme Court's opinion US Airways v. McCutchen, which held that in a reimbursement action under ERISA based on an equitable lien by agreement involving a self-funded ERISA plan, the ERISA plan's terms govern, and equitable principles will not override the language of the contract. Importantly, however, the Court explained that if the plan is silent on the allocation of attorney's fees, the common-fund doctrine provides the appropriate default rule to fill that gap.

The U.S. Supreme Court also issued an opinion addressing state Medicaid liens. In Wos v. E.M.A., the Court addressed how to determine what portion of a Medicaid beneficiary's tort recovery is attributable to medical expenses, and held that a state's irrebuttable statutory presumption that one-third of a tort recovery is attributable to medical expenses is preempted by federal law. The case further clarified that a state is prevented from taking any portion of a Medicaid beneficiary's tort judgment or settlement not designated as payments for medical care, and that a judicial or administrative proceeding may be necessary to determine what portion of the settlement represents compensation for medical expenses.

Another development occurred in California with regard to hospital liens. A California appellate court held in State Farm Mutual Automobile Insurance Co. v. Huff that the hospital had the burden to prove by a preponderance of the evidence the amount of its lien, that is, the amount of the reasonable and necessary charges for the emergency and ongoing medical or other services that it furnished to the tort victim. In that case, the hospital was not entitled to recover on its lien because it did not prove that the charges for its services were reasonable and necessary.

III. Cases

And whether you want to be up to date on the notable cases from the past year, or just have material for your next attorney cocktail party, below are summaries of some the most noteworthy personal injury cases from 2013:

U.S. Supreme Court Cases

Kiobel v. Royal Dutch Petroleum Co., 10-1491 -- The Alien Tort Statute does not reach conduct occurring in a foreign sovereign's territory.

Mutual Pharmaceutical Co., Inc. v. Bartlett, 12-142 -- State-law design-defect claims that turn on the adequacy of a drug's warnings are preempted by federal law.

Sebelius v. Cloer, 12-236 -- An untimely petition under the National Childhood Vaccine Injury Act may qualify for an award of attorney's fees if it is filed in good faith and there is a reasonable basis for its claim.

Wos v. E. M. A., 12-98 -- A state's irrebuttable statutory presumption that one-third of a tort recovery is attributable to medical expenses is preempted by federal law. A state is prevented from taking any portion of a Medicaid beneficiary's tort judgment or settlement not designated as payments for medical care under the federal anti-lien statute and Arkansas Dept. of Health and Human Servs. v. Ahlborn.

US Airways, Inc. v. McCutchen, 11-1285 -- In an ERISA reimbursement action based on an equitable lien by agreement, the ERISA plan's terms govern, and neither general unjust enrichment principles nor specific doctrines reflecting those principles, such as the double-recovery or common-fund rules, can override the applicable contract.

2nd Circuit

Licci v. Lebanese Canadian Bank, SAL, 10-1306 -- Jurisdiction over defendant-bank that repeatedly used a New York correspondent bank account to transfer substantial sums of money on behalf of a Hezbollah affiliate did not violate due process protections.

Molchatsky v. US, 11-2510--The discretionary function exception to the Federal Tort Claims Act shields the SEC's conduct from plaintiffs' claims for damages arising out of the SEC's negligent failure to adequately investigate Bernard Madoff despite numerous warnings.

3rd Circuit

Baer v. US, 12-1319 -- Plaintiffs' claims for damages as a result of the SEC's failure to uncover and terminate Bernard Madoff's Ponzi scheme in a timely manner are barred by the discretionary function exception to the Federal Tort Claims Act.

4th Circuit

Cioca v. Rumsfeld, 12-1065 -- Judicial abstention is the proper course in a case against two former Secretaries of State alleging a Bivens cause of action arising out of defendants' acts and omissions in their official capacities that contributed to a military culture of tolerance for rape and other sexual crimes perpetrated against plaintiffs, because no Bivens remedy is available for injuries that "arise out of or are in the course of activity incident to service," and the injuries alleged by plaintiffs in their complaint clearly "arise out of or are in the course of activity incident to service."

9th Circuit

Hamad v. Gates, 12-35395 -- The district court did not have jurisdiction over the claims of plaintiff, a detainee at Guantanamo Bay as an enemy combatant, against the Secretary of Defense and other government offices.

Haro v. Sebelius, 11-16606 -- The Secretary of Health and Human Services' interpretation of Medicare's secondary payor provisions as requiring "up front" reimbursement for secondary payments from beneficiaries who have appealed a reimbursement determination or sought a waiver of the reimbursement obligation, and requiring attorneys to withhold settlement proceeds from their clients until after Medicare is reimbursed, was reasonable.

Parra v. Pacificare of Arizona, Inc., 11-16069 -- A private Medicare Advantage Organization (MAO) plan cannot sue a plan participant's survivors for reimbursement for advanced medical expenses out of the proceeds of an automobile insurance policy, where although the MAO Statute, Medicare Part C, allows an MAO to charge a primary plan for conditional payments made on behalf of a plan participant, it does not grant an MAO a private right of action to recover those payments.

Ritchie v. US, 11-16535 -- In an action alleging that officers in the United States Army caused the death of plaintiff's infant son by ordering his pregnant wife, a servicewoman on active duty, to perform physical training in contravention of her doctor's instructions, which ultimately induced premature labor, the Feres doctrine, which immunizes the United States from liability for tort claims arising out of activities incident to military service, barred plaintiff's wrongful death claims, and an "in utero" exception to Feres, employed by other circuits, did not apply.

Sachs v. Republic of Austria, 11-15458 -- A foreign-state owned common carrier engages in commercial activity in the United States and thus is not immune from suit under the Foreign Sovereign Immunities Act (FSIA), when it sells tickets in the United States through a travel agent, and subject-matter jurisdiction over actions against a foreign sovereign common carrier that engages in commercial activity of this kind exists, as long as the plaintiff's claims are based upon that activity.

New York Court of Appeals

Caronia v. Philip Morris USA, Inc., 227 -- Under New York Law, a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and who is not under investigation by a physician for such a suspected disease, is not entitled to pursue an independent equitable cause of action for medical monitoring for such a disease.

Supreme Court of California

Kurwa v. Kislinger, S201619 -- A judgment that disposes of fewer than all the pled causes of action by dismissal with prejudice, with the parties agreeing to dismiss the remaining counts without prejudice and waive operation of the statute of limitations on those remaining causes of action, is not appealable.

Martinez v. Brownco Construction Co., Inc., S200944 -- When a plaintiff makes two successive statutory offers pursuant to Code of Civil Procedure 998, and the defendant fails to obtain a judgment more favorable than either offer, allowing recovery of expert fees incurred from the date of the first offer is consistent with section 998's language and best promotes the statutory purpose to encourage settlements.

Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assoc., S190581 - The Pendergrass rule limiting the fraud exception to the parole evidence rule is overruled.

Zhang v. Superior Court (California Capital Insurance Company), S178542 -- Although Moradi-Shalal v. Fireman's Fund Ins. Companies bars private actions for unfair insurance practices under the Unfair Insurance Practices Act, it does not preclude first party actions brought under the Unfair Competition Law based on grounds independent from Insurance Code section 790.03, even when the insurer's conduct also violates section 790.03.

California Court of Appeal

Carter v. Lampkin B237871, Corenbaum v. Lampkin, B236227 -- Evidence of the full amounts billed for plaintiffs' medical care was not relevant to the amount of damages for past medical services, damages for their future medical care or noneconomic damages, and because plaintiffs have not shown that evidence of the full amounts of their medical bills was relevant to any other issue, the admission of such evidence was error.

For a more in-depth discussion of this issue, see Personal Injury Claims Dealt Another Blow by California Court.

Flores v. West Covina Auto Group, B238265 -- An arbitration clause waiving class-wide arbitration rights was enforceable because the Consumer Legal Remedies Act's prohibition against class waiver is preempted by the Federal Arbitration Act.

Flores v. Presbyterian Intercommunity Hospital, B235409 -- Plaintiff's complaint alleging negligence and premises liability against defendant-hospital when a bed rail collapsed causing her injury, sounds in ordinary negligence and not professional negligence, so as to be governed by the two-year statute applicable to personal injury actions.

Fortman v. Forvaltningsbolaget Insulan, B237818 -- Although plaintiff witnessed the injury to her brother, she did not meaningfully comprehend that the company's defective product caused the injury, and thus she cannot satisfy the second requirement for negligent infliction of emotional distress under Thing v. La Chusa.

Luttrell v. Island Pacific Supermarkets, Inc., A134089 -- Howell v. Hamilton Meats governs to reduce the recovery of past medical expenses to the amounts actually paid by Medicare and Medi-Cal rather than the amount billed, and the Howell cap should be imposed before any reduction for failure to mitigate damages.

Malin v. Singer, B237804 -- Plaintiff's civil extortion claim is subject to dismissal under the anti-SLAPP statute because defendant's demand letter did not constitute extortion as a matter of law, but plaintiff's claims for a violation of his civil rights and for intentional and negligent infliction of emotional distress are not subject to dismissal under the anti-SLAPP statute because they did not arise from protected activities.

Moreno v. Quemuel, B241998 -- When a peace officer opens his or her door as a precursor to exiting a patrol car and making contact with a motorist during a traffic stop, the peace officer is in "immediate pursuit of an actual or suspected violator of the law" for purposes of the immunity set forth in Vehicle Code section 17004, and thus, in that situation, the peace officer cannot be held liable for opening his or her door in the path of a motorcyclist and causing injury.

Nevarrez v. San Marino Skilled Nursing and Wellness Centre, B235372 -- The trial court abused its discretion in admitting into evidence a class A citation and a statement of deficiencies issued by the state Department of Public Health (DPH) against defendant hospital, but the evidentiary error did not affect the jury verdict on the Patient's Bill of Rights.

Pedeferri v. Seidner Enterprises, B233542 -- A commercial vendor owes a duty of care to persons on or near the roadway who are injured as a result of the vendor's negligence in loading and securing cargo in a vehicle in a way that distracts the vehicle's driver.

Quesada v. Herb Thyme Farms, B239602 -- The federal Organic Foods Production Act of 1990, which governs the labeling of agricultural products as organic and USDA Organic, preempts state consumer lawsuits alleging violations of the Act or violations of California's federally-approved state organic program, which is codified as the California Organic Products Act of 2003.

Regents of the University of California v. Superior Court, B249148 -- The Confidentiality of Medical Information Act allows a private right of action for negligent maintenance negligent maintenance or storage of medical information only when such negligence results in unauthorized or wrongful access to the information.

Reid v. Mercury Insurance Company, B241154 -- An insurer's duty to settle is not precipitated solely by the likelihood of an excess judgment against the insured, and in the absence of a settlement demand or any other manifestation the injured party is interested in settlement, when the insurer has done nothing to foreclose the possibility of settlement, there is no liability for bad faith failure to settle.

State Farm Mutual Automobile Insurance Co. v. Huff, D062550 -- A hospital, as a party asserting a right to the interpleaded funds under the Hospital Lien Act, had the burden to prove by a preponderance of the evidence the amount of its lien, i.e., "the amount of the reasonable and necessary charges" for the "emergency and ongoing medical or other services" it furnished defendant tort victim, and the hospital was not entitled to any of the damages because it did not prove the charges for its services were "reasonable and necessary."

Steiner v. Superior Court, B235347 -- The court's order to plaintiffs' attorney to remove, for the duration of the trial, two pages from her website that discussed her success in two asbestos cases raising similar issues to the trial in this action was an unlawful prior restraint on the attorney's free speech rights under the First Amendment because the order was more extensive than necessary to advance the competing public interest in assuring a fair trial.

Swanson v. State Farm General Insurance Company, B240016 -- Following an insurer's withdrawal of its reservations of rights and coverage defenses that gave rise to an insured's right to Cumis counsel, the insurer is no longer obligated to the pay the insured's Cumis counsel once the conflict is eliminated.

Winn v. Pioneer Medical Group, Inc., B237712 -- The elder abuse statute does not limit liability to health care providers with custodial obligations, and the question of whether the doctor's failure to refer the elderly patient to a specialist was reckless is for a jury to decide.

Young v. Horizon West, H038736 -- Plaintiff's daughter lacked authority to sign an arbitration agreement with the skilled nursing facility on plaintiff's behalf.

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