Settling Your Personal Injury Case Is YOUR Decision

The bottom line is that you are the injured party. The settlement process in a personal injury case is indeed complex. Despite the fact that your lawyer is doing all of the talking on your behalf, you are an integral part of your own settlement negotiations. If something doesn’t feel or sound right, tell your lawyer. Voice your concerns. He or she will should advise you based on a mixture of experience in the legal world and the particular facts of your case. Every case is different. The settlement that you reach is final, you can’t go back for more money once you’ve signed on the dotted line.

Settlements are reached through various means and can be achieved at any point during the pendency of your case. Those means are not the subject of this particular posting but, in general, settlement can be reached by negotiation between your attorney and the insurance company adjuster or defense attorney, or at mediation before a retired judge or attorney-mediator or at a settlement conference in court before a sitting judge. Call or e-mail me and I’ll be happy to discuss these issues in much greater detail. Consultations are free.

I can be reached at

(323) 852-1100

(818) 306-5799 or

(877) 487-8221

As always, I’m here for all of your legal needs. If your issue is something other than personal injury, then I have a great network of attorneys personally vetted by me to whom I can refer you.

Lowell Steiger, Attorney at Law

What’s My Personal Injury Case Worth?

Personal injury value              Is my case worth
$1 million? $10 million?  We’ve all heard
the stories.  “My friend broke her
fingernail and got $150,000.”  “My
brother-in-law’s friend’s cousin’s son’s wife got $4 million when she fell at
the A & P and broke her wrist.”  “Bob
Hartman got $2.7 million because he was rear-ended by a drunk driver and the
drunk’s insurance company was afraid to go to court.” 

            How
are these crash-to-riches cases possible? 
Well, in a word, they’re not!  

Are there multi-million dollar verdicts and settlements?  Of course there are but they are based on major injuries, good liability and deep pockets.  

Click here for details about a motorcycle accident that my office settled for almost $8 Million

Urban Legends

Urban-legend-rumor             Let’s
face it, folks.  Insurance companies are
not in the business of handing out huge settlements – they’re in business to
make money and unreasonable payouts fly in the face of their business model.  Unreasonable (and unjustified) large payouts
are just not the reality, they are simply urban
legends
.

Snopes.com quells the
examples of alleged gazillion dollar recoveries from people filing outrageous
lawsuits by researching the real facts (or lack thereof).  The Stella Awards,
named for Stella Liebeck, the plaintiff in the famed McDonald’s Burn Case (read
the real story here
) was a leader in putting out annual lists of crazy
lawsuits with alleged crazy
settlements and jury verdicts – but these lawsuits are not real, they are more
examples of urban legends. 

Really, Now.  What’s My Case
Worth
?

         Reality
check everyone: Every case is different.  Your rear-end case has a different value than
your neighbor’s rear-end case.  Sonny’s slip
& fall case has a different value than Chastity’s slip & fall case.  Chester’s
product liability case is different than Field’s product liability case.

            Why?  Because every case has its own unique dynamic
based on many of these factors:

*     
People/entities involved

o      
Parties

o      
Medical providers

o      
Employers

o      
Eye-witnesses

o      
After-the-fact witnesses

o      
Expert witnesses

o      
Insurance company(ies)

*     
Facts of the accident

*     
Who’s at fault and to what extent?

*     
Injuries sustained

*     
Medical bills (past, present and future)

*     
Loss of earnings (past, present and future)

*     
Property damage

*     
Pain, suffering, inconvenience, embarrassment,
disfigurement

 

Case Study

 Scalding Water Burns Tourist in Restaurant 

            As you know,
personal injury cases come in all shapes and sizes. There are, to name a few, traffic collisions, injuries
when someone has a slip
& fall
, product
liability
cases and premises liability
cases.  I am using this premises
liability case to illustrate the points raised in this particular article. 

Note: This story has been fictionalized and all persons appearing
in this work are fictitious. Any resemblance to real people, living or dead,
places or events is entirely coincidental. 

Boiling water              Facts: Kiki, a
30-year old female Japanese tourist visiting relatives, went to a Chinese restaurant
in Los Angeles’s famed Chinatown for a family meal.    Chinese Restaurants serving large parties
often place a Lazy Susan
on the center of the table to make it easier to serve the meal family style.  

            Early
on, the restaurant placed a teapot filled with scalding water on the edge of
the Lazy Susan.  While Kiki, with her
four-year old daughter Ling on her lap, and 11 other family members sat around talking,
the condensation began to form on the outside of the teapot.  Engrossed in conversation, no one at the
table was paying attention to the Lazy Susan or the teapot until disaster
struck.

            Suddenly,
the teapot was on its side and the contents spilled out all over Ling and Kiki.
 Little Ling began screaming and Kiki rushed
to cover her in cold water all the time unaware that her own arm was drenched
in hot water.

            Kiki
was able to save Ling from serious injury.  Although Ling was burned, the burns were first-degree
and quickly healed, leaving no scars.

            Unfortunately,
Kiki, who was wearing a long-sleeved sweater at the time, was not so lucky.  While Kiki tended to her child, the scalding
water caused her polyester sweater to literally meld into the skin of her arm.  She removed the sweater and several layers of
her skin in the process. 

            Kiki,
suffered second degree
and third degree burns
as a result.  That night she went
into shock
and was rushed to the emergency room. 

            Kiki’s
healing process was long and arduous.  She
returned home and underwent a major skin graft
where they replaced the damaged and dead skin on her arm with skin from her
scalp (and to answer your question in advance, her arm did NOT grow hair).  She has been left with permanent, unsightly
scars on her forearm.

 Who's Fault Is It That Kiki Was Hurt?

             Well,
this case had some unique twists and turns.  In evaluating this case, several of the factors
listed above had to be considered.  The
first, of course, was who was at  fault
was this incident?

            On
first blush, it appears to be the restaurant’s fault.  However, it’s important to note that the plaintiff
(the person making the claim) has the burden
of proving
that it is, in fact, the restaurant’s fault.

            Since
everyone at the table was talking when the incident occurred, we had no
witnesses who could honestly say how or why the teapot tipped over.  It was through the use of an expert witness’s forensic
analysis
that we were able to develop the viable condensation theory.

            The
expert, a physicist, based his analysis on an examination of the location, the Lazy
Susan, the dispenser from which the hot water was poured into the teapot, the
teapot itself and the depositions of Kiki and Shuau, the restaurant employee
who placed the teapot on the Lazy Susan.  Shuau testified at her deposition, under penalty of perjury,
that she was instructed by the restaurant to wait until the temperature gauge
on the dispenser was pointing to red before filling the teapot with water.  

            “What
does it mean when the needle points to red,” I asked.

            “Dangerous.”

            “Dangerous?”

            “Yes,
dangerous.”

            The
restaurant’s attorney covered his face with his hands upon hearing this admission.   It is also important to note that an employer
is responsible for the acts undertaken by its employees while in the course and
scope of their employment
. 

            This
is not to say that the restaurant’s lawyers weren’t mounting a defense.  The severity and degree of the injuries were
definite and obviously caused by the hot water dispensed by an employee of the
restaurant.  

 Who's fault             So
what could they say to mitigate their responsibility?  Simple: Kiki should have removed her sweater
sooner and none of this would have happened!  Yes, this was their defense.  (Defense lawyers ALWAYS have a trick or two
up their sleeve – click
here to read Anderson Cooper’s relevant expose
).  

There were
other family members there – why didn’t they take care of Ling while Kiki took
care of herself?  Actually, I hoped that
the defense would bring this up at trial because what juror would buy that
argument?  If anything, it would inflame
them because any parent, any human being for that matter, is going to tend to a
child before they tend to themselves.  That’s
just human nature. 

What Is Kiki Entitled To? 

Dollar sign              There
are various types of damages that someone is entitled to.  In Kiki’s case she was entitled to special
damages and general damages.  She sued
the restaurant for Negligence for her injuries as well as Negligent Infliction
of Emotional Distress for having witnessed her daughter’s injuries.  Since this writing is devoted to damages, I’m
not going to go into any detail on the actual legal theories of liability.

            Special, or economic, damages
are those that are quantifiable such as past, present and future medical bills
and loss of earnings that arise from the injury.  In this case, Kiki had about $40,000 in
medical bills incurred for the emergency hospital visit and her skin graft.  It was agreed upon by everyone that these
bills were reasonable and certainly necessary.  Therefore, she was entitled to reimbursement
for $40,000.

            General, or non-economic,
damages
are subjective damages for pain, suffering, disfigurement,
embarrassment, emotional distress, humiliation, loss of pleasure in life.  Normally, I’d put the actual figure in here upon
which we settled.  However, I’m going to
leave this to you.  What do you think Kiki is
entitled to by way of general damages
?  
Please put your answer in the comments
section!          

“Wait!” You Say!  “Didn’t You
Forgot Something?

             Just
checking to see if you were paying attention!  No, of course I didn’t forget little Ling.  That would be clumsy of me (not to mention a
tad bit of legal
malpractice
).  Thankfully Ling
suffered no permanent injuries.  She was
scared and had some blisters which healed and left no scars.  Naturally (and necessarily), she was included
in the lawsuit. 

            Ling’s
special damages amounted to $800 for a visit to a local doctor and some healing
ointments.  Again, both sides agreed that
this was reasonable and necessary.

            Again,
I’m going to leave it to you to decide her general damages. 

 Injured? Questions? Concerns? 

For a Free Consultation please contact Attorney Lowell Steiger immediately at

(323) 852-1100

lowell@steigerlaw.com

Skype (with or without video): Lowell_Steiger

"Treated With the Respect and Understanding That You Deserve"

Motorcycle Accident Leads to Traumatic Brain Injury, $8M Settlement

Traumatic brain injury

Just when you think you have no case, you may have a case.  I was asked to take a case where Billy, a motorcycle rider who on first impression was thought to be partially, if not all, to blame for an accident from which he suffered catastrophic injuries.  

Billy was a vibrant, young 20 something motorcycle rider who was not expected to live.  Turns out a lady turned left in front of him in a road construction zone.  Upon further investigation, I discovered that there were potentially many reasons why this accident happened – not all of which could be blamed on the left-turning lady OR Billy.  There were a lot of entities, both public and privae, involved.  
We investigated even further, filed a lawsuit against several defendants and were there for Billy and his family throughout the ordeal.  We litigated aggressively, taking dozens of depositions, hiring legal and medical experts, life care planners, pain management doctors, rehabilitation therapists.
Billy will never be the same, he suffered severe brain damage, multiple broken bones, fractures of the spine.  His family will have to take care of him for the rest of his life.
Through our passionate and zealous representation of Billy, we ultimately negotiated a settlement of just under $8 Million, which will enable Billy to receive the lifetime care he requires.
If you, or someone you know, has been injured in an accident, please contact me immediately at
(323) 852-1100
lowell@steigerlaw.com

Skype (with or without video): Lowell_Steiger


"Treated With the Respect That You Deserve"

Personal Injury Lawyer Los Angeles: How Is A Case Handled?

Personal_injury Despite conventional wisdom, every personal injury case is different. The facts of the accident are unique, the injuries are likewise unique and the manner in which the matter is handled must be carefully tailored to each particular case and client.

There is, however, a certain framework within which personal injury lawyers handle their clients’ cases. It is important to remember that just as each case is unique, so is the client and that client’s needs must be tended to as though he or she is our only client.

The following is the general framework within which we work – subject to all of the modifications that are unique to each particular matter.

Personal injury cases take anywhere from six months to two to three years to resolve, whether that be by settlement, arbitration or trial. I always advise my clients that they must be patient and that the wheels of justice turn ever so slowly. There are periods throughout a case when things get amped up and then quiet down again.

In order to even begin settlement negotiations, we must collect reports and bills from your doctors, the hospitals, information from your employer regarding your loss of earnings and, of course, information gathered regarding the facts of the case through witnesses, police reports and a plethora of other possible sources. Once all of this information is gathered, I am able to begin to analyze your case in terms of its reasonable value and begin negotiations with the insurance company representing the alleged at-fault party or parties.

But before we even get to that point, here’s what needs to happen:

Stethoscope Medical Treatment

It is very important that your doctors, and your lawyer, know about all injuries or medical problems that existed before your accident and those that came about after the accident. I’ve had great cases that literally disintegrated when these conditions were not disclosed early on. Sometimes this happens because we’re human and just forget BUT it is very important to try and recall all such problems. You need to know that the insurance companies keep a database of all claims made by individuals and they will likely know more about your medical and claims history than you do!

Be sure to tell your doctors about all of your complaints. I always tell my clients to take an imaginary trip from the top of their head to the tip of their toes and describe each ache, pain and symptom to the doctor so that it can be noted and analyzed. Diary Keep a diary or journal of your experiences after the accident. What hurts? What kind of treatment are you getting? Are you improving? How is your life changing? What could you do before the accident that you can’t do now? Keep a record of all of your out-of-pocket expenses.

Telephone_shhh Do Not Discuss Your Case

If the insurance company calls you for any reason whatsoever, I always tell my clients that the answer to any question is "Lowell Steiger." As sophomoric as it may sound, if they say "How’s the weather?" you say "Lowell Steiger,          (323) 852-1100        ." Do not talk to anyone other than your attorney, your doctor and, if you must talk to someone else, a trusted immediate family member.

Do not sign any documents without your lawyer’s approval.

In some cases, the other side will put you under surveillance. I always tell my clients that you have nothing to fear when your case is legitimate. As an attorney, I go to great pains to be sure that the cases in my caseload are always legitimate. This begins with the new-client interview process. Do not answer questions about your case to anyone other than your doctor or lawyer. You should be suspicious of anyone unfamiliar to you approaching you with questions about your case. Simply tell them that you have been instructed by your attorney to not discuss your case

Lawsuit The Lawsuit (Suing the "Bad Guys") If we can’t come to a reasonable settlement with the insurance company, then I must file a complaint against the at-fault party or parties on your behalf. In other words, we sue them. The party or parties that are sued then give the complaint to their insurance company who turns it over to their attorneys. Within approximately four weeks, the attorneys "answer" the complaint.

At that time, they will serve us with written questions called "interrogatories" and a demand for production of relevant documents (i.e., medical records, loss of earnings verification, police report, photographs, etc.). They will also ask to take your deposition which is really just an oral version of the questions asked during the written interrogatory phase. All responses, whether written or oral, are done under oath. You will be fully prepared for your deposition – I always spend many hours reviewing the facts of the case with my clients way in advance of the deposition. The procedure is explained to you in detail. Naturally, you will be accompanied by an attorney who is there to represent your interests and vigorously protect your rights.

And remember: Everything that they ask of you, we ask of them – we’ll take their depositions and serve interrogatory questions.

Although there is much more to the process, I hope that this gives you somewhat of an idea as to what to expect.

If you have questions, please feel free to e-mail me at lowell@steigerlaw.com or call me at          (323) 852-1100        .

Work Injuries Resulting From Negligent Third Party (Someone Other Than Your Employer)

On_the_job_injury Through California’s Worker’s Compensation Laws injured employees are able to recover from the limited benefits of their employer’s insurance.  But what happens in cases where an employee has sustained an on-the-job injury caused by someone other than the employer? Simply put, in addition to filing a workers’ compensation claim, the injured employee may sue this third party (i.e., other person or entity) in tort law. Third party cases may fall into categories such as traffic accidents, slip & fall incidents, defective products, defective equipment or the exposure to toxic substances and any number of other situations.

If a worker suffers a significant injury, it is highly probable that they will not receive sufficient funds from a workers’ compensation claim because workers’ compensation claims are not based upon fault whereas tort claims are based on fault and include monetary compensation for pain and suffering.  Therefore, pursuing claims against a negligent third party is critical to ensure maximum compensation for injuries or death.

           Every on-the-job injury should be evaluated by an experienced attorney to determine if a third party claim exists.

The personal injury component of a workers’ compensation claim is oftentimes overlooked.  Here are just a few examples of such cases that my office has successfully handled (all clients were on-the-job but we also sued a third party on their behalf):

·         Male bus driver rear-ended by automobile.  He suffered a knee injury which required arthroscopic surgery. Significant confidential settlement.

·         Female building maintenance person who slipped due to wet carpets when exiting the elevator of her office building.  At the time of the incident, a carpet cleaning company (third party) was cleaning the carpet and failed to post signs warning of the dangerous condition.  Serious knee injuries. Large 6-figure settlement against the carpet cleaning company.

·         U.S. Postal Worker who was in Los Angeles on business suffered severe burns to his left foot due to the hotel’s providing scalding hot water to the shower.  The client almost lost his leg due to complications.  Significant settlement against the hotel.

·         Male law firm investigator was rear-ended while in the field. He suffered injuries sufficient to require him to undergo neck and back surgeries. Policy limit settlement against the driver of the offending vehicle.

·         Female Cal-Trans worker was in a lift changing a street light when an the top of an 18-wheeler grazed the bottom of her bucket, throwing her several feet out of the bucket. She hung in the air by her safety belts.  The worker suffered severe physical and emotional injuries as a result. Significant 6-figure settlement against the trucking company.

The attorney handling the third party portion of the claim must work closely with the workers’ compensation attorney as well as with the workers’ compensation insurance carrier because of the unique legal issues presented in these situations.

If you have suffered a work related injury and have reason to believe that a third-party may bear some liability, please call or e-mail me to discuss your legal rights.

**********************************************************************************************************************

The Law Office of Lowell Steiger Represents Injured Victims

If you have suffered a Personal Injury, Call for a Free Consultation

Contact Attorney Lowell Steiger at (323) 852-1100

or via e-mail at lowell@steigerlaw.com

"Treated With the Respect That You Deserve"

www.steigerlaw.com

Case of the Dangerously Icy Sidewalk: Broken Ankle, Six Figure Settlement

Ankle_fracture Miss May T., a then 17 year old girl, slipped on black ice outside of a convenience store and suffered an excruciatingly painful bimalleolar fracture of her right ankle.  Her injuries were so severe that massive swelling ensued and the doctors were unable to operate on her ankle for over a week!  While May writhed in unspeakable pain and doctors were unable to do anything more than give her pain pills (which she was reluctant to take), the insurance carrier for the convenience store denied liability!

A massive liability dispute arose.  I hired a meteorologist, a slip and fall expert and a private investigator to get sworn statements from the convenience store’s own employees.  The sum and substance of the case is as follows:

My meteorologist advised me that weather reports attested to the fact that it had been snowing during the evening and entire night of the evening prior to the incident, possibly extending into the early morning hours of the morning of the actual incident, with the existence of sub-freezing temperatures during the night and early morning hours. The day of the accident presented mostly sunny conditions throughout the daytime hours. The incident occurred at approximately 9:00pm at which time there was an accumulation of ice from the previous night’s weather conditions which could, and should, have been treated, melted and cleared.

Private_eye My private investigator obtained sworn statements from store employees which substantiated the fact that, throughout the day, customers complained of the icy conditions on the sidewalk outside of the subject convenience store. Those statements provided testimony that the assistant store manager, Vickie, was advised a multitude of times of the customer complaints but failed to remedy the dangerous condition. Vickie repeatedly told employees that customers "just needed to be careful." Vickie further told the convenience store employees that the store had no rock salt with which to remedy the situation in its possession. However, subsequent to May’s fall, and then upon further investigation, the convenience store employees discovered that rock salt did, in fact, exist in the the convenience store storeroom. At that point, the rock salt was utilized to de-ice the subject sidewalk and thereby remedy the dangerous condition. Vickie’s failure to timely investigate and make safe a very dangerous condition was the actual and proximate cause of May’s injuries (see, for example, Langhorn Road Apartment v. Bisson, 207 Va. 474 (1996) where an apartment owner was found liable when the plaintiff fell on an accumulation of ice and snow).

The egregious and uncaring conduct of Vickie resulted in this dangerous condition persisting throughout the day and, ultimately, into the night when an unsuspecting May T. exited the convenience store, slid across the sidewalk and was stopped when her foot slammed into a concrete device which was intended to stop a moving vehicle!

Danger Where was the danger sign?  Where was the simple repair that could have saved May from such excruciating, and unnecessary pain?  The answer is: No where to be found and this lack of action on the part of the convenience store was a breach of their duty to May, their customer, to protect her from an unreasonable risk of harm.

May suffered a fracture of her ankle as well as a torn ankle ligament all of which which required major surgery with the placement of a five-hole plate with two screws above and below the fracture line.  To this day, Miss T. suffers pain in that ankle and is expected to ultimately develop arthritis.

After months, and months, of argument and negotiation, I was able to convince the insurance carrier for the convenience store that, yes, their insured did bear the responsibility in this matter.  The insurance carrier made a six figure offer to settle May T’s case. 

**********************************************************************************************************************

The Law Office of Lowell Steiger Represents Injured Victims

If you have suffered a Personal Injury, Call for a Free Consultation

Contact Attorney Lowell Steiger at (323) 852-1100

or via e-mail at lowell@steigerlaw.com

"Treated With the Respect That You Deserve"

www.steigerlaw.com

Rear-Ended By Drunk Driver: Leads to Surgery, Large Settlement

Rearend_collision How horrific it was for my client, Mrs. F., an innocent woman legally slowing down for a stop to be suddenly, and without warning, be rear-ended by a drunk driver.  Otherwise in great health, this lovely lady’s life was turned asunder by the flagrant disregard of a guy who was more concerned with his afternoon cocktails than the safety of other people on the road on which he drove.

The physical impact to Mrs. F’s car was so severe that it was deemed a total loss.  In particular, the insurance company felt that it would cost more to repair her car than the $30,000 that it would cost to replace it! 

Discectomy Mrs. F., was so seriously injured that she required neck surgery to remove and replace the discs in her cervical spine at two different levels in an effort to relieve the symptoms of the herniated discs in her neck.  The herniations were deemed to have been caused by this accident.

Medical Bills: Over $100,000.  The drunk driver’s insurance policy had a limit of $25,000 which was paid very quickly to Mrs. F.  However, what to do when her medical bills and pain and suffering far exceeded the drunk’s policy limits?  Fortunately, Mrs. F. was savvy enough to have Uninsured Motorist Coverage which is also known as Underinsured Motorist Coverage with a limit of $500,000.  Simply put, Mrs. F’s insurance policy "stepped into the shoes" of the drunk driver and treated this case as though they were insuring the drunk driver. 

Our office prepared a detailed settlement demand package which included all of the details of the accident, injuries, treatment (and all relevant medical reports, surgical reports, treatment reports) and what Mrs. F could now expect in her future.  With that in mind, we demanded the entire $500,000 from Mrs. F’s insurance own company under the provisions of her Uninsured/Underinsured Motorist Policy.  Due to the severity of the injuries, her insurance company tendered the entire $500,000 less a credit for the $25,000 that she received from the drunk driver’s insurance carrier.

I routinely advise my clients that it is imperative that they carry as much automobile insurance as they can afford — and very importantly, Uninsured Motorist Coverage.  I hope that what happened to Mrs. F. never happens to you but, in the event that it does, it is best to be covered to the greatest extent possible.  In another posting I will discuss Medical Payments Coverage.

The Law Office of Lowell Steiger Represents Injured Victims

If you have suffered a Personal Injury, Call for a Free Consultation

Contact Attorney Lowell Steiger at (323) 852-1100

or via e-mail at lowell@steigerlaw.com

"Treated With the Respect That You Deserve"

www.steigerlaw.com

Personal Injury Settlement Offers in California

Law_book_and_gavel  Please read the following article regarding Personal Injury Settlement Offers in California.  This article explains one of the most powerful negotiating tools in California Personal Injury Litigation.   I received this article, via e-mail, from the Los Angeles County Bar Association and wanted to share it with you.
Section 998 Offers of Settlement
by Cheryl Johnson-Hartwell

What is a Section 998 Offer?
Code of Civil Procedure Section 998  provides that if a party makes a settlement offer no less than 10 days before a trial or arbitration and the offer is not accepted before the earlier of the commencement of trial or arbitration or the passage of 30 days from the time of the offer, the party making the offer may be entitled to certain benefits if the rejecting party fails to obtain a more favorable result at trial or arbitration. For example, if a plaintiff rejects an offer made by the defendant but does not obtain a more favorable judgment or award, the plaintiff cannot recover any costs he or she accrued after the offer and must pay the costs incurred by the defendant after the offer was made. The court also has the discretion to order the plaintiff to pay a reasonable sum to cover the costs of the services of an expert witness used by the defendant. The converse is true for a defendant who rejects a reasonable offer from the plaintiff.
What Must a Section 998 Offer Contain?
Section 998(b) states, in part, “The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”  The statute goes on to say, at Section 998(b)(1), “If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. In the case of an arbitration, the offer with proof of acceptance shall be filed with the arbitrator or arbitrators who shall promptly render an award accordingly.”
Is a Court Judgment or Arbitration Award Required?
Can a defendant submit an offer under Section 998 or agree to accept an offer under Section 998 without having a judgment entered? Those who may consider arguing that an offer is not valid without an entry of judgment should know, however, that more than one court has interpreted this language as not requiring entry of judgment for an offer to be valid under Section 998.
Section 998 was enacted to encourage settlement by providing a strong financial incentive to a party to present a reasonable settlement offer and an opposing financial disincentive for the offeree to reject such a reasonable settlement offer.1 To further these purposes, the offer must be clear and specific. A clear offer allows the offeree an adequate opportunity to meaningfully evaluate the offer and determine whether it should be accepted or rejected. In addition, an offer must be specific because the court lacks the authority to adjudicate a dispute over the terms of the offer and subsequent agreement, and can only perform the ministerial task of entering the judgment according to the terms of the offer. However, despite this preference for clear and specific terms, there is no requirement that the offer contain a particular method by which the case will be resolved—judgment against the defendant, entry of an award, or dismissal with prejudice. 2
In Goodstein v. Bank of San Pedro, the plaintiff challenged an order granting the defendant’s motion to recover expert witness fees and other fees and costs based upon a settlement offer that the plaintiff had rejected. The plaintiff argued that the offer was ineffective as a Section 998 offer because it proposed a voluntary dismissal with prejudice and did not allow judgment to be taken. The court rejected the plaintiff’s distinction and found that a voluntary dismissal proposed in a settlement offer operated as the equivalent of a “judgment” within the meaning of Section 998.3
There was a similar result in American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, in which the defendants submitted a settlement offer that proposed payment of funds by the defendants in return for dismissal of the lawsuit with prejudice. When the plaintiff failed to obtain a more favorable judgment at trial, it disputed the defendants’ right to obtain reimbursement for costs and expert witness fees because the Section 998 offer did not specifically provide for entry of judgment as a condition of settlement. The American Airlines court rejected the plaintiff’s argument and held that if the settlement offer addressed some disposition of the lawsuit that functioned as the legal equivalent of a judgment, then actual entry of judgment was not required for the Section 998 offer to be effective.4
In 2004 in Berg v. Darden, the court even noted that the legislature’s amendment of Section 998 after the Goodstein opinion indicates legislative approval of the result in that case and the intention that Section 998 cover any termination of an action between the parties to an agreement. Thus, it appears that there is no magic language required to make an effective Section 998 offer as long as it is a clear, written offer that is intended to result in a final disposition of the action.5
1 Bank of San Pedro v. Superior Court, 3 Cal. 4th 797, 804, 12 Cal. Rptr. 2d 696, 838 P. 2d 218 (1992).
2 Berg v. Darden, 120 Cal. App. 4th 721, 727, 15 Cal. Rptr. 3d 829 (2004).
3 Goodstein v. Bank of San Pedro, 27 Cal. App. 4th 899, 903, 32 Cal. Rptr. 2d 740 (1994).
4 American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017, 1054, 117 Cal. Rptr. 2d 685 (2002).
5 Berg, 120 Cal. App. 4th at 730 n.1, 731-32.
Cheryl Johnson-Hartwell is an attorney with the firm of Waller Lansden Dortch & Davis LLP.  This article was first published in Los Angeles Lawyer in May 2005. 

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Case of the Exploding Wine Bottle: Personal Injury Settlement

Alsp_bottle_001 A fascinating product liability case involved a wine conossieur who, while attempting to uncork a bottle of wine, was using a cork extractor which operates as follows: A needle is inserted through the cork, the user pumps the spring-loaded handle and air pressure then forces the cork out. The result is shown in the picture to your left. 

Mr. A. had owned the cork extracting unit for several years and, up to the date of his injury, had used it to uncork at least 200 bottles of wine. Although he reports that the cork is usually extracted on the fifth to seventh pump, the bottle exploded on the fourth or fifth pump on this grim occasion.  Alsp_hand_2

He reports that he immediately knew that his hand was dramatically injured because he could not feel anything and, as he held it up, blood started gushing heavily from the wound.  

It was my theory that the bottle itself was defective.  I engaged the services of a phenomenal expert, Fred Johnson, Ph.D., whose credentials as a professor of physics at Cal State Fullerton spoke for themselves.  Alsp_bottle_002 Dr. Johnson examined the bottle with the use of a high magnification microscope and determined that there were two major defects in the subject wine bottle: (1) Very uneven glass thickness and (2) an obvious glass anomaly (bubble), which weakened the bottle’s integrity, such that when the internal gas pressure was applied (in order to remove the cork) it caused a catastrophic failure of the bottle.

Mr. A. sustained serious injuries as a result of this manufacturing defect.  Alsp_hand_002_2 To whit, he suffered a laceration to the flexor tendon in the ring finger of his left hand.  Although doctors attempted to surgically repair the injury, Mr. A permanently lost the use of his finger (see photo to left)

Settlement: We were able to achieve a settlement for Mr. A against the bottle manufacturer and the store who sold it to him of over $100,000.

The Law Office of Lowell Steiger Represents Injured Victims

If you have suffered a Personal Injury, Call for a Free Consultation

Contact Attorney Lowell Steiger at (323) 852-1100

or via e-mail at lowell@steigerlaw.com

"Treated With the Respect That You Deserve"

www.steigerlaw.com