This week’s question:

I had an unfortunate automobile accident a few months ago and now the other party is threatening me with a lawsuit if I don’t pay her for her claimed injuries.  On top of it, I did not have insurance.  Maybe I can offer her a token settlement but I am concerned that if I do, it will look like I was in fact responsible for the accident.  How can I deal with this?

/s/Jake J.

Almaden Valley

Dear Jake—

It is indeed unfortunate that you did not have your automobile insured at the time, since if you did, you could just turn the matter over to the insurance company.  Perhaps I can offer a few suggestions for general information, keeping in mind that every case is different.

First of all, you probably do not need to be concerned about the appearance of admitting liability for the accident by offering a settlement, if and only if it is done right. The California Evidence Code provides in §1152(a) that:

“Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”

So, you can see that if you offer to pay the other driver some money, that should not be held against you so that it looks like you are responsible for the accident just because you offered to pay some money.

However, it should also be understood that such an offer should be done right.  This would include your having legal representation to assist you at all stages to help ensure that it is processed appropriately.  Your attorney would undoubtedly require that the other driver and owner of the vehicle sign a full “release of all claims, known and unknown,” when the settlement is reached.  No money changes hands until this is done.

Such a “release of all claims” would include a waiver or giving up of unknown claims.  Under California Civil Code §1542 a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

However, the protection offered by §1542 can be waived, and your attorney would probably ensure that this protection is waived—for your benefit.

/s/Donald J. DeVries

Almaden Valley

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This week’s question:
 
My wife was rear-ended in an automobile accident several months ago. We have had several thousands of dollars in medical expenses and a significant amount of lost salary, and it’s time to settle the case. We went to a personal attorney last week and he told us it will take time to settle the case. Maybe even a few months–more. Is this normal? Why does it take so long?
 
/s/Dave D.
Almaden Valley
 
Dear Dave:
 
You probably have heard the old cliché “The wheels of justice grind slowly.” It seems to be very, very true, including personal injury cases.  If you want to settle it immediately, you can probably do so by accepting the other insurance company’s last offer. However, you might not want to do that.
 
Of course, you might want to try to settle the case only after your wife’s injuries have stabilized so you know that the case is really worth in terms of settlement value. If she is still treating with her physicians, it might be too early to think about settlement.
 
And then, your attorney may find it necessary to file suit in Superior Court for the injuries, wage loss, and general damages (i.e., pain and suffering). That also takes time since you need to do it right.
 
After that, the law suit papers are served on all responsible parties. They then typically refer the matter to their insurance company.
 
The defendant then needs to deliver the summons and complaint to his or her insurance carrier. After that, a claims adjuster for the insurance company needs to review the allegations of the complaint with the insured.
 
The next step in the process typically involves the claims adjuster arranging counsel for the defendant. This is usually followed by the defense attorney needing to discuss the complaint with the insured.  After the defense attorney has discussed the case with his or her client, an answer to the suit is prepared and filed with the court.
 
All of these steps take time, even in the best of cases. And often complications arise that require even more time than normal.
 
These steps were discussed in a recent case entitled Najera v. Huerta, where the plaintiff’s counsel tried to rush things a bit too quickly. 

Almaden Times readers can read the Najera v. Huerta decision by going to their favorite search engine and entering the name of the case. I like to bypass all the advertising and go to the Court of Appeal website. In this case, it’s the Court of Appeals, 5th Appellate District. It is a January, 2011 case.
 
Good luck with your case, Roger. I hope it goes well.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

This week’s question:
 
I was injured in an automobile accident several months ago and had some pretty serious injuries and about $10,000 in medical bills. The other driver’s insurance company has contacted me and has offered a settlement if I sign a “Release of All Claims”. Do you know anything about this kind of document? What is this all about? Do I really have to sign it? Will it hold up in Court?
 
/s/Kristen K.
Almaden Valley
 
Dear Kristen:
 
Good question, Kristin. A release is very routine in personal injury cases.
 
The first thing you might want to do is to consult your own legal counsel for a good understanding of your rights. I really do not think there is any substitute for this, including newspaper articles, online reports, and things of that nature, as good as they are. Your own attorney is best suited to represent you and only you.
 
Having said that, there are some general rules to follow in this situation. First of all, you will want to make sure your doctors have examined and treated you carefully for any and all injuries.
 
The reason is that the “Release of All Claims” that you will need to sign is just that—you are releasing the other party or parties for anything and everything that may come up in the future.
 
California residents have some protection in California Civil Code §1542 that provides as follows:
 
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
 
So, that is some protection, but not much, since every Release of All Claims that I have ever seen provides for a waiver of California Civil Code §1542. What this means is that you give up the protection of that law. Another way of saying it is that you are giving up known and unknown claims now and for eternity. If you need a $15,000 surgery next year, tough luck.
 
You can see right away that signing a Release of All Claims is a major, major thing to sign in an automobile accident case or other case as well. I cannot stress too much that you may want to see your own legal counsel before you sign such a document.
 
It is quite easy to go online and see for yourself what California Civil Code Section 1542 looks like, quoted above. It’s real and it means business.
 
I hope all goes well in your settlement process.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.
 

This week’s question:

What type of financial or legal liability do parents have concerning a child once they turn 18? Specifically, I am wondering if an adult-child causes injury to person or property, will the adult-child be solely responsible for their actions once they are legal adults, and if not, what are the scenarios where the parents might be liable?

/s/Mark M.

Almaden Valley

Dear Mark-

Excellent question, Mr. Mark. Let me see if I can answer it satisfactorily for you.

Generally speaking, parental liability for acts of their children who have turned 18 ceases when the child has his or her eighteenth birthday and thus is a legal adult (for most purposes). However, having said that, I need to add quickly that there are a few important exceptions, often based on "special relationships".

One exception is where a parent, for example, would give the keys to the family car to an adult child knowing full well that the adult child had a long history of alcohol and/or drug abuse, previous "accidents" causing personal injuries, previous trips to juvenile hall, and the like.

If that adult child would go out and kill somebody in an automobile "accident" and the cause was the adult child’s drunk driving, it could well result in parental liability for the wrongful death of the other driver and/or passengers. Or his or her own passengers. A plaintiff’s lawyer might frame that suit against the parents in terms of negligent entrustment of the automobile. (Of course, the young adult child would probably have no assets to pay any claim.)

There have been several cases over the years where no duty of due care arises simply because of the parent-adult child relationship, but it has been recognized that entrusting an instrumentality to an improper or incompetent person, under circumstances that indicate a likelihood of misuse, may be grounds for liability. As mentioned above, one of the principal examples is entrustment of a motor vehicle to an incompetent, reckless, or intoxicated driver.

You can probably imagine a little bit different situation where a parent allows an adult child to use a hand-gun, knowing full well that the chances are great that the adult-child might kill or seriously injure someone. Again, the injured person or his or her heirs, might have grounds for a law suit based on negligent entrustment. However, it is important to note that every case is different and these cases often depend or turn on a few key facts.

For example, in the 1993 case of Todd v. Dow, the Court held that by allowing their adult, married son to store a firearm collection in his former bedroom, the parents did not assume a duty to supervise the son’s off-premises use of the firearms. The parents had no control over son, and had no ostensible reason to be concerned about the weapons.

In that case of Todd v. Dow, the son had exhibited no violent tendencies, threatened no one and intended no harm with the firearm. Neither the parent-child relationship nor the storage of the firearms at the parents’ home created a special relationship with third parties for firearms injuries occurring off the premises. In that case, an antique rifle accidentally discharged while the son and an adult cousin engaged in mock hand-to-hand combat with bayoneted rifles. Sadly, the injured person was rendered a paraplegic.

In cases like this, the court will often look to whether it was foreseeable that a firearm would accidentally discharge, causing serious injuries and whether there is a close connection between the parents’ conduct and the victim’s injury. Also, the Court will look at whether there was any legal duty of due care on behalf the parents to supervise and/or control the adult child’s use of the firearm. And, moral blame is often a key element.

One of the key issues also will be whether the parents had the ability to control the adult child. The absence of any ability to control the adult child could well be fatal to a claim of legal responsibility. In the Todd v. Dow case, it could have been different if the parents gave, loaned, furnished, or supplied the rifle to the son instead of merely allowing the son to store the rifle at their house.

As you can see, Mr. Mark, even a few different facts could make a huge difference in finding legal liability against the parents. That’s why you need to use a little common sense about potentially dangerous instrumentalities, such as vehicles and weapons. A little common sense will go a long way.

Finally, a whole separate area of the law deals with liability insurance coverage that involves the construction of insurance provisions relating to the insured’s "residence," "household," "family," and the like, or to their occupants or members. That is a topic for another day.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.