On March 11, Nevada Legislators introduced Bill A.B. 300, amending existing helmet requirements for motorcyclists. Under the new bill, motorcyclists over the age of 21, who have had their motorcycle license for at least a year, and who have completed a safety course, are no longer required to wear protective headgear while riding on highways. All motorcyclists that do not meet these criteria are still required, by law, to be protected. Passengers over the age of 21 are also no longer required to wear protective headgear.
In 2000, Florida amended a similar law enacted in 1967, removing the requirement that motorcycle riders over the age of 21 wear a helmet. Those riders over 21, however, who did not wear helmets, were required to have an additional $10,000 in medical insurance. The U.S. Department of Transportation, National Highway Traffic Safety Administration filed a report in 2005, evaluating motorcycle crashes the two years before, and the two years after the repeal of Florida's helmet requirement. Importantly, between 1997 and 1999, of the 515 motorcyclists killed in the state, 9.4% were not helmeted. Between 2001 and 2003, however, 60.8% of the 933 motorcyclists killed were not wearing a helmet. The incidence of incapacitating injury suffered while not helmeted increased from 20.8% in 1999 to 50.3% in 2001. The study also revealed that while riders under 21 were required to continue wearing helmets, actual compliance decreased after the law was changed. Similar to a trend seen in Arkansas, Texas, and Louisiana, Florida saw an increase in motorcycle registrations coincidental with the repeal of its helmet requirement.
The majority of states have partial laws similar to Florida's law and the law proposed in Nevada but it is likely that Nevada will experience trends similar to those seen in other states after the repeal of a helmet requirement. The American Motorcyclist Association is urging its members to contact their legislators to tell them to say "YES!" to A.B.300, but time will tell if the "right to ride with freedom of choice" is worth the added risk.
Prescription and over-the-counter (OTC) medications are intended to keep us healthy. In the wrong circumstances - especially when we are behind the wheel of a vehicle - our drugs could contribute to our early demise. To be sure your medications don't abuse you, please remember:
- It is your responsibility to know what you're taking and how it affects you. If you have a question, ask your doctor or pharmacist.
- Bodies are different and everyone will not react the same to medications. Furthermore, a drug can affect one person differently in different situations.
- Don't mix medications, or mix any kind of drug with alcohol, until you have consulted with your doctor or pharmacist.
- Try to use only one pharmacy.
- The problem with some drugs, such as cough medicines, is that they have a high alcohol content. Read the literature you get with any drug to determine whether it contains sedatives or alcohol.
Driving Alert
Even at recommended doses, OTC drugs can affect driving ability as much, or in some cases, even more than illegal drugs, prescription drugs, or alcohol.
- Antihistamines are the principal culprit, according to the Southern California Research Institute. They can cause drowsiness, dizziness and blurred vision.
- Sleeping pills and night-time cold medications can also impair drivers. Obviously, a medication intended to help you sleep is not going to make you a good driver.
- Ibuprofen, a commonly used pain reliever, can reduce concentration levels and cause drowsiness.
- If you're taking a medication for the first time, don't plan on driving after you take that first dose. Wait to see how it affects you.
Over the next several blogs I plan to concentrate on basic information about driving safety.
Driving a car is one of the most routine activities we engage in, but it's also one of the most dangerous. Over 40,000 people are killed in motor vehicle accidents each year.
These 40,000 deaths translate into lifetime odds of 1-in-100 of dying in a motor vehicle accident.
Another discouraging number associated with motor vehicles is that 1-in-2 of us will suffer a temporary or permanent disabling injury* in a motor vehicle accident.
With odds like these, your only answer is to develop a defensive driving attitude when you get into a car. As the articles in the Driving section show, there are many steps you can take to reduce the odds you will be one of these statistics.
One of the most important steps you can take is to develop an attitude to make every driving trip a "perfect trip." This includes such things as wearing seat belts, obeying speed limits, and driving defensively under all weather and traffic conditions.
Driving a car should be one of life's pleasures, not one of life's tragedies.
The principal causes of motor vehicle deaths, based on recent National Safety Council statistics, are: Collision Between Motor Vehicles - 20,600; Collision with Fixed Object - 13,300; Pedestrian Accidents - 5,900; Noncollision Accidents - 5,200; Collision with Pedalcycle - 900; Collision with Train - 200; Other Collision - 100.
* A disabling injury is an injury that disables you beyond the day of the injury.
Here's a plug for Trial Guides at www.trialguides.com. The following interesting news comes from their enewsletter of today's date.
This week, Florida Insurance Commissioner Kevin McCarty announced that he is suspending Allstate Insurance companies from writing new insurance in Florida. McCarty's choice follows Allstate's refusal to comply with subpoenas served October 16 by the Office of Insurance Regulation.
The subpoenas seek disclosure of the McKinsey Documents, in which McKinsey & Co. instructed Allstate how to systematically underpay claims starting in the mid 1990s. The content of the documents is so explosive that Allstate has already ignored a $25,000 per day fine in Missouri for its ongoing failure to provide the McKinsey Documents in that state.
Trial Guides landmark book, From Good Hands to Boxing Gloves, is the only book that provides a full discussion, as well as reproductions, of the McKinsey documents. Written by the only lawyer who has obtained the McKinsey Documents unprotected, David Berardinelli, the book gives plaintiff lawyers the edge in personal injury and bad faith claims by disclosing the content of the McKinsey Documents and how you can use them in trying or settling your case. From Good Hands to Boxing Gloves has been the most widely publicized legal book of 2007, serving as a source for feature stories with CNN, PBS, BusinessWeek, Bloomberg, and many more. More media coverage is coming in 2008, following the suspension of Allstate in Florida.
For more information on this subject, please refer to the section on Car and Motorcycle Accidents
Driving in Reno is not (nearly) as bad as driving in Southern California or New York City, but we still have our share of accidents.
A UNR civil engineer professor and some UNR students are now researching roads and intersections in the Reno area to make them safer and less accident prone. The project entails videotaping certain intersections and studying tire marks or warning signs in "fender bender" areas.
The students have also set up surveys online and at the Department of Motor Vehicles that ask the public to identify high accident areas. Once these areas are located, the students review statistical data with an aim toward alleviating the problem particular to the spot. Read more about this project in the Reno Gazette.
According to an article by the Better Business Bureau dated October 19, 2007, the number of drivers across the United States, but especially in Nevada, without insurance is higher than would be expected.
In a recent study by the Insurance Research Council, one out of seven at-fault drivers is uninsured. In Nevada this number rises even more with seventeen percent of drivers uninsured. This can be compared with a fourteen percent national average.
While the article does not go into details about why this is the case, it does offer some suggestions for any driver to protect himself in the event of an accident.
When a motorist is uninsured, the victim of the accident has the responsibility to pay for everything himself. The BBB recommends that every driver gets uninsured motorist coverage on their policy so that he can be protected from the majority of these high costs. It also suggests getting rental car coverage so the motorist does not have to be without a vehicle while it is being repaired.
The last recommendation of the article is for all motorists to get underinsured motor vehicle coverage. In the event that an at-fault driver only has the bare minimum coverage on their policy, the victim of an accident may still have to pay for some of the damages himself. Underinsured motorist coverage pays the difference between the at-fault driver's limits and the actual costs of the damages. It also gives protection to a motorist who hits a pedestrian.
To see the full article, go to http://reno.bbb.org/WWWRoot/SitePage.aspx?site=100&id=aba21efe-da25-4c75-ad61-2d30bbb646da&art=1431.
Nevada law requires that any driver involved in a traffic accident immediately stop his vehicle at the scene of the accident or, if his vehicle is obstructing traffic, to a location as close as possible. The law also requires that the driver of any vehicle involved in an accident file a report with the police department.
Assembly Bill No. 71 changes these laws. The bill clarifies the procedures for traffic accidents outlined in NRS 484.221 and modifies a requirement of NRS 484.223.
NRS 484.221 states that a driver involved in a traffic accident must move his vehicle if it is obstructing traffic. The bill changes the original statute to include the words: "As soon as reasonably practical." The bill also adds that the vehicle must be able to be moved "safely."
Assembly Bill No. 71 also adds a new section that changes NRS 484.223.
NRS 484.223 states that: "The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall... forthwith report such accident to the nearest office of a police authority."
The new bill changes this requirement and provides that: "A driver who moves or causes his vehicle to be moved...is not required to file a report pursuant to NRS 484.223 or 484.229." If a driver moves or causes his vehicle to be moved then that driver is no longer required to file a report.
This is one of a number of articles that deal with basic legal concepts when you're in an accident in Nevada.
Accidents, like the challenges of life, aren't always straightforward, and defense attorneys are adept at making the most of complexity.
So what happens when you're in an accident and you may have some fault, too?
Nevada law is generally clear on this issue. N.R.S. 41.141 provides, in part, as follows:
41.141. When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants
1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.
2. In those cases, the judge shall instruct the jury that:
(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to recover, it shall return:
(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and
(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.
Basically, this means that if your case ends up at an arbitration or a trial, you will be barred from recovery only if you are determined to be more than 50% at fault.
If you are determined to be 50% or less at fault, then whatever award you receive will be reduced by your percentage of fault.
The full text of this statute and others can be found at http://www.leg.state.nv.us/law1.cfm
http://nashville.injuryboard.com/motor-vehicle-accidents/google-earth-for-auto-accidents.phpMy fellow personal injury law blogger, Ray Runyon, in Nashville, Tennessee, provides a great idea for personal injury attorneys (and their clients) in his blog today.
Google Earth http://earth.google.com/ allows a user to input an address anywhere in the world and then "zoom in" to get a closer view and a real photograph of an accident scene. It can also be used, like Mapquest, to get directions.
This service is free, so the cost of obtaining an aerial photograph, even for a small case, is no longer an issue.
We'll be using those here at my firm in our next arbitration... Who, after all, would question the admissibility of anything Google?
Did you know that many insurance companies use computers to evaluate your pain and suffering after an auto accident?
That's right: insurance adjusters review your medical records for various key pieces of information (information that they think is key) and plug that information into a computer program that calculates the value of your injuries.
While the distastefulness of this can be expounded upon all day, insurance companies were never known for their good taste or their compassion. Insurance companies are in the business of making money and to do that they have to keep as much of their money as they can.
Here are some helpful things to keep in mind when it comes to impressing an insurance company's computer.
Most companies look at the number of visits you make to a physical therapist or chiropractor. Additionally, most companies note and input various types of data regarding the following:
Delays or gaps in treatment.
How often medications were used and which medications were used.
Preexisting injuries.
Subjective complaints.
Objective findings.
Permanent impairment issues and whether they are supported by the medical chart.
Charting by your doctors and whether there are supportive entries.
Your prognosis upon completion of treatment.
Type of treatment: medical doctor, chiropractor, alternative care provider, etc.
Diagnostic test results.
Whether your pain radiated or radiates to other parts of your body (radiculopathy).
Plaintiffs attorneys work to humanize you to both insurance companies and to juries. It may not be clear whether anyone can feel your pain but you. One thing's for sure, though: a computer doesn't.
This article will cover some more ways in which insurance companies handle and defend auto accident cases.
Medical Bills
Insurance companies will always attempt to use your medical bills against you, often for the propositions 1) that you overtreated; and 2) that they should not be responsible for the cost of diagnostic tests that turned out negative.
Neither concept makes much sense. Insurance companies are generally in no position to assess or govern your medical treatment. Nevertheless, they frequently do just that. Moreover, it is illogical that an insurance company would complain about negative diagnostic test results. Diagnostic tests are ordered by doctors for medical reasons.
If you do not follow-through with an ordered test, and your case proceeds to litigation, you can assume that an insurance defense attorney will raise this issue in the context of a mitigation of damages defense. Nevertheless, when you do follow-through appropriately and tests come out negative, expect an insurance company to complain. I often ask claims adjusters why they are complaining: would they prefer, for instance, that a CT scan or an MRI were positive?
Note, too, that the amount of medical bills in an injury case are generally the primary factor used by an insurance company to evaluate claim value.
Delay in Treatment
Insurance companies also like to point out delay in treatment for the proposition that you were not seriously injuried. Ideally, auto accident victims should go to the hospital (if necessary) on the day of the accident or as soon as possible thereafter. Similarly, you should begin chiropractric treatment or physical therapy as soon as possible after your accident. Long delays in seeking treatment can give rise to numerous defenses including but not limited to a claim of intervening injury. Further, long delays between treatments can give rise to a mitigation of damages defense as well as a claim of intervening injury.
As a simple rule: get treatment as soon as possible after an accident and stick with that treatment until you are released by your doctor.
I've litigated auto accident cases in Nevada since 1988 and during that time I've seen patterns emerge in the way that insurance companies defend these cases. Here are some thoughts in that regard.
Body Damage
Insurance companies are fixated with the issue of body damage to your car after an accident. Or, more specifically, insurance companies often argue that severe damage to your car does not necessarily mean that you were severely damaged and insurance companies and their attorneys always argue that minimal damage to your car means that you were minimally damaged. While this approach is somewhat absurd, I counsel clients to be ready for a fight that will require medical testimony when physical injuries are significant and body damage is minimal.
Mitigation of Damages
There's an old doctrine of law known as mitigation of damages. Simply put, this means that you have to do what's in your power to minimize your damages. For example, if you can go back to work, you should. If you can't go back to the same job due to physical limitations, you should look for another job. Similarly, it's your obligation to seek out and get appropriate medical treatment so that you recover from your injuries as soon as possible. Absences from work due to an injury should be supported by medical evidence. In contested cases, expect a defense attorney to ask your doctor whether extended absence from work was excused and justified. While lost wages are frequently perfectly understandable, clients should be prepared to offer medical evidence that damages in this regard are justified.
I'll touch upon more issues related to how insurance companies defend cases in an article later this week.
Sometimes an understanding of the law can help to prevent an automobile or motorcycle accident. Ever wonder about the law that pertains to vehicles approaching crosswalks? In Nevada, there are both statutes and ordinances that apply.
For instance, Nevada state law provides the following:
NRS 484.325 Right-of-way in crosswalk; obedience to signals and other devices for control of traffic. Except as otherwise provided in NRS 484.327, 484.328 and 484.356:
1. When official traffic-control devices are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be so to yield, to a pedestrian crossing the highway within a crosswalk when the pedestrian is upon the half of the highway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the highway as to be in danger.
2. A pedestrian shall not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
3. Whenever a vehicle is stopped at a marked crosswalk or at an unmarked crosswalk at an intersection, the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle until the driver has determined that the vehicle being overtaken was not stopped for the purpose of permitting a pedestrian to cross the highway.
4. Whenever signals exhibiting the words "Walk" or "Don't Walk" are in place, such signals indicate as follows:
(a) While the "Walk" indication is illuminated, pedestrians facing the signal may proceed across the highway in the direction of the signal and must be given the right-of-way by the drivers of all vehicles.
(b) While the "Don't Walk" indication is illuminated, either steady or flashing, a pedestrian shall not start to cross the highway in the direction of the signal, but any pedestrian who has partially completed his crossing during the "Walk" indication shall proceed to a sidewalk, or to a safety zone if one is provided.
(c) Whenever the word "Wait" still appears in a signal, the indication has the same meaning as assigned in this section to the "Don't Walk" indication.
(d) Whenever a signal system provides a signal phase for the stopping of all vehicular traffic and the exclusive movement of pedestrians, and "Walk" and "Don't Walk" indications control pedestrian movement, pedestrians may cross in any direction between corners of the intersection offering the shortest route within the boundaries of the intersection when the "Walk" indication is exhibited, and when signals and other official traffic-control devices direct pedestrian movement in the manner provided in this section and in NRS 484.283.
The Las Vegas Municipal Code adds the following:
11.30.020 Right-of-way--Darting before vehicles.
When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite one-half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. A pedestrian's right-of-way in a crosswalk is modified under the condition and as stated in Section 11.30.060.
11.30.030 Passing vehicle stopped at crosswalk.
Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.
11.30.040 Right half of crosswalks.
Pedestrians shall move, whenever practicable, upon the right one-half of crosswalks.
11.30.050 Route of crossing roadway.
No pedestrian shall cross a roadway at any place other than by a route at right angles to the curb or by the shortest route to the opposite curb except in a crosswalk.
11.30.060 Crossing outside crosswalk.
(A) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
(B) Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway.
(C) The foregoing rules in this Section shall have no application under the conditions stated in Section 11.30.070 when pedestrians are prohibited from crossing at certain designated places.
11.30.070 Crosswalk use required when.
(A) Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a crosswalk.
(B) No pedestrian shall cross a roadway other than in a marked crosswalk or within an unmarked crosswalk in a central traffic district or in any business district.
Similarly, the Reno Municipal Code states:
Sec. 6.06.350. Right-of-way in crosswalks.
(a) Except as provided in section 6.06.365, when official traffic-control devices are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be so to yield, to a pedestrian crossing the highway within a crosswalk when the pedestrian is upon the half of the highway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the highway as to be in danger.
(b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
(c) Whenever a vehicle is stopped at a marked crosswalk or at an unmarked crosswalk at an intersection, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle until such driver has determined that the vehicle being overtaken was not stopped for the purpose of permitting a pedestrian to cross the highway.
(d) Whenever signals exhibiting the words "Walk" or "Don't walk" are in place, such signals shall indicate as follows:
(1) While the "Walk" indication is illuminated, pedestrians facing the signal may proceed across the highway in the direction of the signal and shall be given the right-of-way by the drivers of all vehicles.
(2) While the "Don't walk" indication is illuminated, either steady or flashing, a pedestrian shall not start to cross the highway in the direction of the signal, but any pedestrian who has partially completed his crossing during the "Walk" indication shall proceed to a sidewalk, or to a safety zone if one is provided.
(3) Whenever the word "Wait" still appears in a signal, such indication has the same meaning as assigned in this section to the "Don't walk" indication.
(4) Whenever a signal systems provides a signal phase for the stopping of all vehicular traffic and the exclusive movement of pedestrians, and "Walk" and "Don't walk" indications control such pedestrian movement, pedestrians may cross in any direction between corners of the intersection offering the shortest route within the boundaries of the intersection when the "Walk" indication is exhibited, and when signals and other official traffic control devices direct pedestrian movement in such manner as provided in this section and in section 6.06.075.
Sec. 6.06.355. Use of right half of crosswalks.
Pedestrians shall move, whenever practicable, upon the right-half of crosswalks.
My clients often want to know what sort of compensation they are legally entitled to claim after an accident.
Injuries from automobile accidents often have catastrophic consequences. Serious injuries can be disabling, and may affect not only the injured person but his or her family members as well. Even relatively minor injuries that necessitate lost time from work and medical care can have a great impact on a family.
In Nevada, a wrongfully injured person, and, in certain cases, his or her family members, may be entitled to compensation for injuries incurred in automobile, truck, motorcycle and pedestrian accidents.
Claimed compensation may include::
-Medical expenses already incurred
-Medical expenses to be incurred in the future
-Physical pain
-Mental suffering
-Loss of, or destruction to, property
-Loss of enjoyment of life
-Permanent physical disability
-Lost wages
If the person ("tortfeasor") who caused the accident has insufficient insurance, or is not insured at all, a victim is entitled to compensation from his own insurance company if he has uninsured/underinsured coverage. In some situations there are other policies of insurance (policies of other family members, employers, etc.) that may provide benefits.
Experienced personal injury attorneys evaluate damages carefully and claim the full universe of legitimate potential damages on behalf of a client.
This is another in a series of articles that deal with the basic legal concepts that apply when you're in an automobile accident in Nevada.
Ever wonder whether it's necessary to show another driver your license after you're both in an accident? Some might think that this is a matter of courtesy. In fact, it's the law.
N.R.S. 484.223 requires that drivers who are involved in auto accidents cooperate with each other and with the police and provides:
484.223. Duty to give information and render aid
1. The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall:
(a) Give his name, address and the registration number of the vehicle he is driving, and shall upon request and if available exhibit his license to operate a motor vehicle to any person injured in such accident or to the driver or occupant of or person attending any vehicle or other property damaged in such accident;
(b) Give such information and upon request manually surrender such license to any police officer at the scene of the accident or who is investigating the accident; and
(c) Render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary, or if such carrying is requested by the injured person.
2. If no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsection 1 and NRS 484.219, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of a police authority or of the Nevada highway patrol and submit thereto the information specified in subsection 1.
The statute thus requires not only that driver's cooperate with each other, but also that they render aid to one another in appropriate circumstances. There will be more on the legality of rendering aid in future columns.
To access this statute and others, you can view the Nevada Legislature's law library at http://leg.state.nv.us/law1.cfm
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