FAQ’S

If you have been unfortunate enough to be involved in a motor vehicle accident or other type of incident in which you have suffered personal injuries or financial damages, one of the first questions that you will probably have is “Do I really need a lawyer”? To resolve this important question, the best thing that you can do is to discuss your situation with a lawyer who is both knowledgeable and honest. In this regard, I would point out that our firm features two attorneys certified as specialists in the field of wrongful death and personal injury; two attorneys who have served as State Bar President, and three attorneys who either in the past or presently have served as members of the Arizona Supreme Court Committee on character and fitness. Also, it is important to note that our firm, like many others, offers an initial consultation at no charge to you.

There are any numbers of factors to be considered when determining whether you need a lawyer. These include examining the liability situation (i.e., whether there is a realistic probability that it can be proved that another person and/or entity was responsible for your injuries/damages), along with the nature and extent of the injuries/damages, as well as the amount of the medical bills, if applicable.

Another important consideration is the amount and type of the insurance coverage available. As a knowledgeable attorney can explain to you, in addition to any insurance coverage available as to the person/entity that caused your injuries/damages, you may well have other important coverage available under your own policy. This potential coverage could include Medical Payments coverage (“Med Pay”), Uninsured Motorist coverage (“UM”) and/or Under Insured Motorist coverage (“UIM”).

Medical Payments coverage is designed to pay for medical treatment related to accident-related injuries. Under Insured Motorist coverage will come into play if the coverage available through the policy of the person or entity that caused your injuries/damages is insufficient to pay the full value of the claim. For example, if the full value of your claim was determined to be $100,000.00 and the offending party only had policy limits of $50,000.00, your UIM coverage could pick up the balance of $50,000.00.

In regard to Uninsured Motorist coverage, this could come into play if the person or entity that caused your injuries/damages was not insured (and there is a relatively high percentage of vehicles in Arizona that are being operated without any insurance), your insurance company would pay the value of your claim under this coverage, at least up to your UM limits.

Under Insured Motorist coverage could come into play if the coverage available through the policy of the person or entity that caused your injuries/damages is sufficient to pay the full value of your claim. For example, if the full value of your claim was determined to be $100,000.00 and the at fault policy had liability limits of $15,000.00 (which is the minimum amount required by Arizona law), your UM coverage could pick up the balance of $85,000.00, if you had sufficient limits under your policy.

Further, a very important factor to be considered in today’s environment involves “liens” and “right of reimbursement” claims by healthcare providers (i.e., hospitals, doctors, etc.) and/or insurance companies or government entities (i.e., medicare, group health plans, etc.). Please note that you will find a very informative article discussing these issues on our website, which was written by my partner, Dan Wilson.

Another important factor to be considered in the question of whether or not you need an attorney or lawyer involves the arrangement as to how the lawyer would be paid. Most personal injury cases are handled on a “contingent” basis. In other words, the client and the lawyer agree that the lawyer will be paid a certain percentage of the amount of any settlement or judgment that the lawyer is able to achieve. Another alternative is that the lawyer will be paid an agreed upon hourly rate.

Typically, most clients favor the contingency fee arrangement. Obviously, in this situation the lawyer only will get paid if he/she is successful in achieving either a settlement or obtaining a judgment. Equally importantly, the lawyer gets paid at the end of the case, at the same time as the client gets paid, and as a result the client does not have to be concerned about receiving monthly bills.

In closing, the most important thing that I can emphasize is that to be able to make an informed decision as to whether you really need a lawyer, you need to seek out the advice of an experienced, knowledgeable lawyer that you can trust, to help you make this important decision.

Evaluating an offer to settle a bodily injury claim from any kind of accident involves many considerations; a practical one for your bottom line is determining if someone (such as your health plan, your healthcare provider or another) may have a right to recover or be reimbursed from the settlement money being offered. Such recovery, reimbursement or subrogation rights that may be held by another relative to a bodily injury claim matter are generally referred to as lien claims. Some common lien claims that could be encountered for injury claim settlement include:

Medicare/Medicare Advantage Plan: If Medicare or a Medicare AdvantagePlan paid medical expenses related to your injury treatment from an accident, you can expect the need to address from the settlement their superior, federal law-based recovery rights arising from their medical expense payments.

Medicaid/AHCCCS: Arizona’s Medicaid program is commonly known as AHCCCS. If AHCCCS has paid medical expenses related to your accident-related injury treatment, you can expect the need to address from the settlement its federal law supported, as well as Arizona state law supported, recovery rights from its accident-related medical expense payments.

Hospitals and Healthcare Providers: Hospitals and other healthcare providers in Arizona who have rendered services for accident-related injury treatment have a statutory means of imposing a lien against an injured person’s damages claims from a third-person’s fault. For these liens to be valid and enforceable, healthcare providers must strictly follow specific statutory perfection requirements. If the healthcare provider has unpaid medical charges for its injury treatment services, and it properly perfects its lien, you can expect the need to address in achieving a settlement a resolution of the healthcare provider’s lien claim. In Arizona, this lien claim does not extend to recoveries for injuries under uninsured or underinsured motorist insurance coverage benefits.

Worker’s Compensation: When a person is injured by a third party during his or her employment, and the injured person has been paid worker’s compensation benefits because of such injury, Arizona law affords the paying worker’s compensation insurer recovery rights for benefits it has paid or may pay in the future. Expect when settling an injury claim against a third person at fault in such circumstances, that the worker’s compensation insurance carrier’s recovery rights will need to be addressed and resolved. In Arizona, such recovery rights extend only to claims against a third party at fault for an injury. They do not extend to benefits an injured person may be entitled to receive under uninsured or underinsured motorist insurance coverage benefits.

Auto Medical Payments Coverage: If your injury claim is from an auto accident, and your own auto insurance has paid under medical payments coverage more than $5,000 for your accident-related medical expenses, then you can expect the need to address from the settlement your auto insurer’s lien claim allowed by Arizona law for medical expense amounts they paid above $5,000.

Private Health Insurance Plans: In the context of lien claims, Arizona is commonly referred to as an anti-subrogation state. What this means in specific connection with medical expense benefits that may have been paid by a privately purchased health insurance plan, is that such a plan will not ordinarily have enforceable rights of recovery or reimbursement from a bodily injury claim settlement with a third party at fault or involving claims for uninsured or underinsured motorist insurance coverage benefits, for any accident-related medical expenses it may have paid.

Determining, evaluating, and resolving valid lien claims relative to bodily injury claim settlements are complex processes in an evolving field of law. This is a summary of a few of the lien types and considerations that could be encountered and must be addressed when considering a potential injury claim settlement. Any one of the lawyers in our firm would welcome your call if you have need of help with an injury case or associated lien determination and resolution questions.

If you have been in an auto accident that has injured either you or another, it helps to have a basic understanding of some of the common insurance protections that may apply to address injury claims.

Bodily Injury Liability: This coverage protects to you against another’s claims for injuries from your fault. This coverage is commonly purchased and provided in specific limits that are either set to apply to each injured person from an accident, with a total sum applicable to each accident occurrence where several persons may have been injured, or set as a single, combined limit applicable to any one accident occurrence that has injured one or more persons. In Arizona, the mandatory, minimum bodily injury liability insurance limits to be carried on a common motor vehicle are $15,000 for injury to one person in any one accident, and $30,000 for injury to two or more persons from any one accident.

Bodily injury liability insurance coverage commonly provides other protections beyond these limits for injury damages. The most important among these is a liability insurer’s agreement to pay the costs of investigating and providing a legal defense for you against another’s injury claims.

Medical Payments: This coverage protects you, and generally other occupants of your vehicle, with payment for medical expenses incurred because of bodily injury from an auto accident. This coverage is ordinarily available to help insured persons regardless of who was at fault for an accident. Some auto policies extend these coverage benefits to insureds who may be hurt by a motor vehicle while being pedestrians or bicyclists. This coverage is purchased and provided in specific dollar limits for the total amount of medical expenses that will be paid to each insured person from any one accident. This coverage normally limits covered medical expenses to those incurred within a specific time period after an accident.

Uninsured Motorist: This coverage protects you, and other specified persons insured by the policy, for bodily injury damages from an accident caused by the operation of a motor vehicle that has no liability insurance, or from a hit-and-run accident where the responsible vehicle’s insurance cannot be determined. This coverage is portable; that means it protects an insured virtually wherever he or she may be at (even if not in the auto with such coverage) when injured by an uninsured vehicle’s operation.

This coverage is commonly purchased and provided in specific limits that are either set to apply to each injured insured in any one accident, with a total sum applicable to each accident occurrence where there may have been injuries to multiple insureds, or in a single, combined limit applicable to any one accident occurrence that has injured one or more insured persons. In Arizona, every insurer writing auto liability policies must offer to an insured in writing at the time of an auto policy’s initial purchase uninsured motorist coverage in limits not less than the bodily injury liability limits contained in the policy that is being purchased. If this written offer is not made, uninsured motorist coverage will be imputed to the purchased auto policy.

Underinsured Motorist: This coverage protects you and other specified insureds for bodily injury damages from an accident caused by an automobile operator who has liability insurance, but the limits of that insurance are less than an insured person’s total bodily injury damages. Underinsured motorist coverage pays the difference between your total bodily injury damages and the responsible driver’s liability limits available to address your injury claims. This coverage is separate from uninsured motorist coverage, but like that coverage, underinsured motorist coverage is also portable. This coverage can protect an insured virtually wherever he or she may be at (even if not in the auto having such coverage) when injured by an operator of a motor vehicle that does not have enough liability insurance available to fully compensate for the total bodily injury damages that an insured person has suffered.

Under Arizona law, every insurer writing automobile liability policies must make a written offer of underinsured motorist coverage to an insured in limits not less than the policy’s bodily injury liability limits, when an auto policy is initially purchased. If no such offer is made, then underinsured motorist coverage will be imputed to the purchased policy.

We hope that this basic outline of potentially available insurance protections will be helpful should you have an unfortunate auto accident experience. It should be expected that each auto insurer, and their respective insurance policies will contain their own, unique terms and provisions in respect to each of these kinds of coverages, including identification of who is an insured for each coverage, what the limits of and exclusions from each coverage may be, and what conditions an insured must comply with in order to have such coverage. If you have been in an accident and have any questions involving application and availability of insurance protections, one of our firm’s lawyers would welcome your call.

We all come into contact with government employees every day: police officers, firefighters, teachers, and city, county, and state employees. What happens when the actions of one of these people injures you? This can come up in a number of situations:

- A car crash with a police vehicle or fire truck

- The use of excessive force by a law enforcement officer

- An injury to a student while on school grounds or during a school activity

- A city’s failure to keep its streets in good repair, resulting in an accident

In any of these situations, or countless others, many people ask, “how do I file a claim with the government?”

Under Arizona law, claims against governmental entities and employees are treated very differently from claims against anyone else. This applies to employees at every level of government, from state to county to city. This also applies to any public school and to all public-school employees.

First, Arizona law requires the filing of a “Notice of Claim” to bring any sort of claim against a government entity or a government employee. This Notice must be filed within 180 days of the injury. If you fail to do so, your claim is forever barred, no matter how negligent the government was or how badly you are injured.

The Notice of Claim requirements are highly technical. It must be delivered to a specific person (who varies based on the entity) and contain several specific items of information, including a specific amount for which you will settle. As with the 180-day deadline, any mistakes in the Notice of Claim can lead to your claim being forever barred.

What should you do if you think you or a loved one has been injured by the government or one of its employees? Contact an experienced personal injury attorney immediately. Do not wait for your injuries to completely resolve. Do not try to file the Notice of Claim yourself. Only an experienced personal injury attorney can ensure that your rights are protected.

While a choice-of-law provision may govern which state’s law will apply, a forum- selection clause controls where the dispute must be brought. For example, a forum-selection clause may specify that disputes must be brought in Arizona, or more particularly, in Maricopa County. These clauses are usually upheld if the clause was the result of fair bargaining, not the result of fraud, reasonable in application at the time of the lawsuit and will not deprive the litigant of “his day in court.” Thus, while the clause should not be drafted into a contract to deprive potential litigants of an opportunity to bring valid claims, if fairly bargained for, one party may genuinely seek to secure a litigation forum that will be convenient to that party (even if it is inconvenient to the other party). The ability to bring or defend a lawsuit close to home can have a tremendous impact on the costs of litigation, the use of legal counsel that a party is familiar with, and other strategic issues.

If a dispute arises pursuant to a contract, the inclusion of dispute related clauses as discussed in this article may have a material impact on the outcome of the dispute. Each party to a contract should seek the advice of legal counsel to assess whether dispute-related clauses are necessary in the contract, and how such clauses impact each party.

Because courts in each state may decide certain issues differently, a “choice-of-law” provision may be inserted into a contract to ensure that a court applies a certain state’s law to any dispute related to such contract. Corporations will sometimes select Delaware law to govern contracts involving corporate law issues because of business oriented state statutes and a large body of corporate cases have been decided in that state. The decisions provide some degree of certainty as to how courts applying Delaware law would decide similar issues in the future.

A choice-of-law provision could determine the outcome of a future lawsuit. Also, under certain states’ law, the amount, and types of monetary awards for injury may be limited. For example, the ability to obtain “punitive” awards in addition to compensation for actual losses varies from state to state.

Contract provisions requiring that any dispute be resolved by arbitration are now very common. While in mediation a neutral third party is present only to facilitate an agreement, in arbitration, an impartial third party or panel holds a hearing and renders a decision. Arbitrations employ a streamlined process, and the rules of evidence are relaxed. Resolution by arbitration is generally quicker than litigation in court and often less expensive. The hearing usually can be scheduled sooner, and the hearing may last only an afternoon, or a couple of days. Sometimes the proceedings can be handled without the need for lawyers. Unlike most civil court proceedings, arbitration proceedings can be kept confidential.

A common “boilerplate” arbitration clause found in contracts specifies that “any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules.” Other contracts relating to a particular trade may specify arbitration under services provided by a trade association. For example, the New York Stock Exchange and the National Association of Securities Dealers provide arbitration services for securities cases.

Initiating or defending a proceeding over a disputed contract can be costly. The parties may recognize that the rights set forth in the agreement might not be worth the legal fees and costs of having to enforce or defend such rights in a vigorously contested dispute. Contracts often include clauses stating that the prevailing party in any litigation arising out of or relating to the contract will be entitled to an award of their attorney’s fees and other legal costs.

Although Arizona law generally allows attorney’s fees to be recovered by the prevailing party in “any contested action arising out of a contract,” using an attorney’s fee clause could prove important if the litigation brought were found to fall outside the nuances of interpretation of the statute. Also, the attorney’s fee clause can additionally provide for recovery of post-judgment attorney’s fees and costs to collect or enforce an award or judgment.