Scott McDonald and Associates PLLC Feed Scott McDonald and Associates PLLC Feed en-us 2023 Scott McDonald and Associates PLLC, All Rights Reserved, Reproduced with Permission Fri, 02 Jun 2023 16:08:02 GMT Scott McDonald and Associates PLLC Feed <![CDATA[One Free Kick]]>DISCLAIMER: I received permission from my client before posting this video. All parties involved will remain unnamed.

In the video above, you can clearly see my client hit the other man first. At first glance this fact might make it seem like my client was obviously guilty. In order to win this case, I pursued an affirmative defense of self-defense. The commonly held understanding of self-defense is that in most cases self-defense requires the opposing party to physically contact the client first. However, by showing that my client was expecting imminent bodily harm from the other man I was able to make the case for self-defense.

This defense was bolstered by the two men’s positions at about 57 seconds into the video. Like cowboys in an old western, they were posturing for a conflict and from there it was simply the matter of making the point that my client was acting with reasonable preemption to avoid harm to his person. Had the fight escalated further this defense may not have been effective. Given that the video shows my client moving to disable the other man and then leaving allowed me to argue a form of preemptive strike self-defense.

As a result of this defense, I was able to have my client’s attorney’s fees paid by the state of Washington. 

]]>, 30 Jul 2014 18:09:00 EST
<![CDATA[Tips for Riding a Motorcycle Safely in Washington]]>

Tips for riding a motorcycle safely in Washington state. Great video for beginners and seasoned riders. 

]]>, 30 Jul 2014 18:07:00 EST
<![CDATA[Did I get enough money for my totaled car?]]>I’ve handled numerous cases involving totaled vehicles in my time in practice. In my experience, the value offered for your totaled car is not always accurate. The amount you get back in return for your totaled car is often an average of an index of 10 similar vehicles currently on the market in a reasonably nearby area. Insurance companies use outfits such as Autosource for their market surveys. A reasonably nearby area cannot be more than 150 miles away unless there are no comparable vehicles within that range. See WAC 284-30-391: Methods and standards of practice for settlement of total loss vehicle claims

For example, if you live in Seattle and the insurance company includes a car from Spokane or Pullman in the index then that value is not valid. If there are plenty of comparable vehicles within close proximity to your home then there is no reason to have to go more than 150 miles out. Similarly, it is important that when receiving the valuation that you ask for the list of cars used to make this valuation.

I just handled a matter in which the totaled car value index included a vehicle that had been previously totaled and received a rebuilt title. This would not pass Carfax muster. This vehicle’s value was well below any of the other cars thus indicating an irregularity in the valuation. Another vehicle was being sold for $1,000 more than what the company doing the market survey reported. Also, another two vehicles, with almost double the mileage, were very low priced as compared to vehicles with closer mileage even using the standard deduction for miles.

The bottom line is that these market surveys utilized by insurance companies often provide valuations biased towards the insurance companies. If you do your homework early to explore the value of your totaled vehicle then you will be in a better position to challenge the biased valuations that we see far too often.

Usually in cases with totaled cars there are sufficient injuries to want to retain an attorney anyways, and especially if you notice significant irregularities in the amount you get back for your totaled vehicle it might be worthwhile to have an experienced car accident injury attorney review your case

]]>, 27 Jul 2014 23:28:00 EST
<![CDATA[How much does it cost to talk to you about my accident?]]>I never charge for initial consultations. This consultation allows us to review the facts of your unique accident together. I can discuss your case either over the phone or in person. After reviewing your case, we can determine if it is in your best interest to have me represent you for your injury. Oftentimes it is a good idea to retain an attorney, but in some cases an attorney may not be needed. The only way to be certain is to contact me for a free, no obligation consultation. 

]]>, 21 Jul 2014 14:48:00 EST
<![CDATA[Woman dies in Seattle boat crash]]>

Photo via Q13 Fox

A 33-year-old Seattle woman, Melissa Protz, died on Wednesday, July 16th while sailing on Lake Washington near Seattle’s Leschi neighborhood. Ms. Protz’s sailboat was slowly returning to shore late that night because the wind had died down. Her sailboat was struck broadside, or possibly head-on, by a motorboat that was traveling at up to 50 miles per hour. Other occupants of the sailboat were injured due to the impact.

In total, there were seven people on the sailboat and four people in the powerboat according to the Seattle Fire Department. The captain of the powerboat, a 46-year-old Renton man, was allegedly impaired at the time of the accident. The captain was arrested for suspicion of homicide by motor craft. He apparently had prior drunk driving incidents.

Melissa Protz was a teacher at St. Assumption-St. Bridget School and is said to have had a “way with people and especially kids that made relationships easy and learning more fun than work.”

This news story is almost identical to a case I handled years ago when an 18 year old man was idle on Lake Sammamish in the dark when a speeding boat struck his boat and killed him. It was a great tragedy and adding to this his body was not found. As in the case of Ms. Protz, the young man was not married. In the state of Washington under the Wrongful Death statute, RCW 4.20.020, there is no recovery for the parents or siblings' anguish, pain and suffering, and loss of love and affection unless the parents, or siblings, were dependent on the deceased for support. The only recovery in this situation is under the Survival statute, RCW 4.20.046, for loss of accumulations to the estate of the deceased. The accumulations are the deceased’s anticipated income over their lifetime less what they would spend over that lifetime.

The fact that the Wrongful Death laws in Washington deny a cause of action to the parents of an emancipated son or daughter has been attacked as unfair. There have been attempts by the Washington State Association for Justice to change the law but the legislature has failed to remedy what we see as an injustice.

If you or someone you know has died as the result of the negligence of another person, contact me for experienced legal representation that will help you get justice for your loss. 

]]>, 21 Jul 2014 14:32:00 EST
<![CDATA[What should I do after a car accident?]]>If you have been injured in the accident, make sure to call 911 or have someone call 911 for you. The most important thing after an accident is to make sure that you are safe and not at risk for further injury. If you are still in your car, only move if you are not feeling lightheaded or feeling any pain. If you are able to, get as many details about the other party as possible such as their name, insurance information, contact information, as well as other important pieces of information. See here for more details on how to go about doing this. 

Again, if you are able to without risking further injury, take pictures of the scene of the accident as well as of any injuries to you, your passengers, or damages done to your vehicle. Accident scenes are cleaned up fairly quickly once the police arrive so this is your only opportunity to document this information before everything has been cleaned. If there are witnesses to the accident, ask them for their contact information as they can be very helpful to your case later on.

At the time of the accident avoid making any comments that might place the blame on you. Stick to the facts of what happened and let the responding officer determine if there is any fault. 

If you feel you have sustained injuries following your accident it is probably in your best interest to seek legal representation to make sure you get the compensation you deserve. Contact me for the help you need. 

]]>, 21 Jul 2014 14:16:00 EST
<![CDATA[The myths of tort reform]]>

“Frivolous lawsuit” – a buzzword that insurance companies use to vilify and misrepresent the work personal injury attorneys do for their clients. The insurance industry has funded entire think tanks dedicated to creating studies to make the public believe “frivolous lawsuits” are out of hand and terribly common. The lobbying of insurance reformists and pro-tort reform politicians has led to myths about certain cases being spread around liberally.

The oft-cited McDonald’s Hot Coffee case is used as the rallying call for pro-tort reformists, making it seem as if some careless person merely spilled hot coffee on their lap and was looking for a quick, easy payout. In reality, the victim Stella Liebeck was a 79-year-old woman who was inflicted with 3rd degree burns requiring skin grafting to her groin area. If you are currently eating or have small children in the room, refrain from Google image searching her injuries. In the end, Liebeck was awarded with the equivalent of 2 days-worth of coffee sales ($2.7 million) despite Liebeck initially only wanting $20,000 to cover her actual and anticipated medical costs. This decision was appealed by McDonald’s and Liebeck eventually settled for an undisclosed amount less than $600,000.

So why is it that the insurance industry and tort reform lobbyists seem so insistent on perpetuating these frivolous lawsuit myths? The obvious and correct answer is it is in their (and truly only their) financial best interest to pass tort reform. The tort reform lobby wants the American public to believe tort reform will reduce medical costs and improve the supply of doctors.

The fact is it doesn’t.

A study published in 2012 by a bipartisan research group looked at medical costs in Texas after Texas passed a tort reform amendment in 2003. This group, composed of two Republicans, a Democrat, and a foreign national, concluded that medical costs in Texas in fact rose 1 to 2% faster than the rest of the country. You can read the full study here. This $750,000 cap on pain and suffering damages also made it difficult to justify the litigation costs of medical malpractice suits, leaving many victims of malpractice unable to find an attorney.

The pro-reform lobby also claims that tort reform will lead to an increase in the supply of doctors. The bipartisan group found that, considering factors such as doctors that leave the state or retire and physicians that only deal with research or administration, the number of direct care doctors actually grew more slowly following the passage of the tort reform amendment.

All of this research points to my earlier conclusion, insurance companies don’t care about the well-being of their insureds when they are promoting tort reform laws. They are only looking after the well-being of their profit margins. Using rising medical costs as a scapegoat, the insurance industry wants to make getting fair settlements for all insurance cases that much more difficult – ultimately to the detriment of the American people.  

If you need experienced legal representation that will fight for your right to fair compensation, contact me for a free consultation. 

]]>, 16 Jul 2014 13:27:00 EST
<![CDATA[Rescue volunteer sues missing hiker due to broken back]]>Rescue Hiker broke back lawsuit injury attorney

Kyndall Jack pictured above. 

A rescue volunteer who broke his back during a search has filed a lawsuit against one of the hikers he helped search for in Orange County, California last year. The volunteer, Nick Papageorges IV, had titanium rods and 11 screws placed in his spine after his fall which crushed several of his vertebrae.

Papageorges seeks to recover about $500,000 in medical costs from the missing hiker Kyndall Jack. This sort of case is one people often point to when citing outrageous lawsuits, but a closer examination of the facts of the case may at least provide some insight as to why such a lawsuit is possible.

The first important fact is that Jack, at the time of the rescue, may have been under the effects of illegal drugs. Her hiking partner at the time, Nicolas Cendoya, pled guilty to drug possession after authorities found 497 milligrams of methamphetamine in his car. Papageorges’ lawsuit alleges that Jack intended to take hallucinogens, but Cendoya was not named in the lawsuit for unexplained reasons.

Even if the two hikers were potentially on the drugs at the time of the accident Papageorges’ case still needs some sort of case law or other statute to provide his case with legal grounds. For this, Papageorge’s has looked to California’s “Marsy’s Law”. Marsy’s law exists to provide additional rights to victims of crimes and addresses restitution in section 13. Here it states “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” If Papageorges’ attorney can show that Papageorges’ injuries were the direct result of negligence and criminal activity on the part of the hikers it is possible this case could be won.

The article states that Papageorges had previously attempted to acquire restitution from Cendoya under the same law, but it is not clear if this attempt failed or if Papageorges chose to pursue Jack instead.

In order for this sort of strategy to work in a courtroom Papageorges’ attorney would have to show that the hikers’ drug usage was more “probative than prejudicial”. This means that this evidence would have to provide substantially more factual value to a case in comparison to how this evidence might prejudice the jury or judge to the opposing party. However, it would appear that the “bad” facts for the defendant may be the basis for establishing liability so it would likely come in if the plaintiff can show that the illegal drugs were causally connected to defendants getting lost in the wilderness.

The bottom line is that I’m not sure if this is a valid case as it stands as I am not overly familiar with California case law. If previous cases can be found where Marsy’s Law was applied in a similar capacity then Papageorges might have a good case. Either way it seems that if we were to take Marsy’s Law exactly as written Papageorges has a reasonable argument. This sort of examination is why it is always important to not take headlines for their base shock value, especially for something as heavily politicized as tort law.

If you or someone you know requires an experienced, aggressive injury attorney, contact us to schedule a free consultation so we can help you get the best recovery possible.

]]>, 03 Jul 2014 19:29:00 EST
<![CDATA[Game Theory and the Art of Law]]> 

Game theory tree for a trial. Scott McDonald has 30 years of experience in WA state handling injury cases

Game tree for a trial, follow instructions below to understand. Right click and press "open image in new tab" to see the full image and details.

Recently, my son Hunter and I were discussing the process of predicting case results using a set of variables and probability analysis. Hunter is currently working on marketing and data analysis for me this summer. When a legal colleague of mine, Travis Jameson, wrote on the subject of probability analysis in injury cases I showed the post to Hunter because I figured he would be interested in the content as well. Hunter is a rising Junior at Washington University in St. Louis studying Business Economics (“Economics & Strategy” is the formal title) and Marketing in the Olin Business school. What follows is Hunter’s analysis and response to Mr. Jameson’s probability analysis:

Mr. Jameson is addressing the process of probability analysis in injury cases and its usefulness in choosing the right avenue to pursue for the best results for his clients in his article. In other words, Jameson proposed a model for determining the expected value of a case if it goes to trial (not a universal model, merely a methodology to analyze case values). This is an interesting approach but the base analysis oversimplifies the way these cases work from a game theoretic perspective.

Jameson’s base model assumes the insurance company is an uncomplicated player, which is to say that it does not make any relevant decisions in the trial and merely takes what the odds give them. The reality of the analysis is more complicated than this. Let’s take a very basic model of mixed strategy, sequential decision game theory and apply it to a trial setting.

Please note that any facts and figures are purely made up (the actual numbers are irrelevant but I tried to stay within the bounds of feasibility). The purpose of this example is to demonstrate how deep the rabbit hole goes once we step into the realm of probability analysis in trials. Additionally, we assume that the insurance company knows whether a case will be good or bad at trial due to their vast amount of data available to make that claim with a high degree of accuracy.

Again, to see the full game tree, right click on the image above and press "open image in new tab", the diagram makes the steps more clear.

To properly create a simple model for a case you have to consider a few assumptions and rules for the “game” as follows:

  1. The plaintiff attorney is depicted as the letter A, Insurance Company as letter I and Nature (an independent actor representing the probability of an event) is depicted as N.
  2. The plaintiff attorney moves first in the game and has the option to accept an offer of $50k or go to trial.
  3. The game is a zero-sum game, in other words any gain for the plaintiff attorney is exactly equal to the loss of the insurance company.
  4. Next “Nature”, which is the probability of an event occurring in game theory, takes its move. The nature node determines whether evidence is bad or good. For simplicity we’ll assign the probability of good or bad to both be .5 (p = .5, 1 – p = .5).
  5. All parties involved in the game are aware of the probabilities of any Nature node branch.
  6. Both you and the insurance company understand if you have bad or good evidence after the first nature node has moved (discovery and experience owing to this understanding).
  7. Next, branching off of the good or bad results the insurance company can make its move. Here it has the option to offer a higher settlement ($60k) or pursue a trial.
  8. The plaintiff attorney can decide to accept the higher settlement or reject the higher settlement in favor of a trial.
  9. Nature again has a move here to determine the probability of settlement. If nature has determined you have good evidence, your probability (q) of acquiring a good settlement is .8 (q = .8 or 80% and 1 – q = .2 or 20%).
  10. If nature has determined you have bad evidence, these probabilities switch giving a q = .2 for a good settlement and 1 – q = .8 for a bad settlement.
  11. A good trial result gives a payoff of $100k and a bad trial result gives a payoff of $25k.
  12. Payoffs are listed (Plaintiff, Insurance Company)
  13. Now we can go about solving the game. The expected result of the Good evidence branch is a trial with Expected Payoffs (85, -85).
  14. The expected result of the Bad evidence branch is (40, -40).
  15. The optimum choice routes for any party that can make decisions (A and I) are depicted as green arrows.
  16. The overall Nash Equilibrium (the most rational result) of the game is for the plaintiff attorney to pursue trial for an expected payoff set of (62.5, -62.5).

This model can adapt based off of other factors. For example, a plaintiff and their attorney may incur costs for pursuing trial that reduce their payoffs in that event which makes settling more favorable. Alternatively, the plaintiff and their attorney may receive a premium utility from winning the case. In other words a client that goes to trial may enjoy the possibility of winning so much that they value winning as an additional pay off to the value of any case result.

It should be noted that this game tree is the same as what game theorists would describe formally as an adverse selection problem and colloquially as the lemon problem (after lemon cars). Adverse selection games occur when the less informed party (the plaintiff attorney) moves first. We model the plaintiff attorney as less informed because the insurance company has access to enough data to make a reliable prediction on case quality.

My point with this analysis isn’t to call out Mr. Jameson’s thought process, but I believe it is very important (if we decide to go this route for trial analysis) to understand how the full game plays out in reality. This sort of subject is terribly complicated and even with my more complicated model it doesn’t adequately explain every variable that goes into a case. As such without a great deal of resources it is difficult to determine where you stand in a case before going to trial with a high degree of certainty. Statisticians usually use a significance level of alpha = .05 as a criterion, which means they are 95% certain of a factor or model’s significance, to determine whether or not a model is useful. I would be hard pressed to say any model we could produce with in-firm data could provide that level of accuracy, hence the value of acquiring experience trying cases.

This is why I like to think of law as both an art and a science. While models and data are all very helpful, there’s always the unexplained portion of the equation that, in law, can only be estimated through experience and subjective analysis. 

]]>, 25 Jun 2014 21:44:00 EST
<![CDATA[The matter of liability for Uber or Lyft Driver Accidents]]>Liability uber lyft car accident

App-based car ordering services, such as Uber and Lyft, were recently given the go ahead by Seattle mayor Ed Murray allowing them to go beyond the previous 150 active driver limit that was imposed in March. As a whole we are in favor of this development. Easier, less expensive access to transportation will hopefully reduce drunk driving and lead to safer roads for Seattleites. However; we feel it is our duty to educate people on the consequences of being involved in an accident with an Uber or Lyft driver (or any other app-based transportation service).

These services contend that their service merely connects drivers with passengers and as such does not constitute employment. Instead these drivers are independent contractors. The TNCs (Transportation Network Companies) would therefore claim they are not liable for damages in the event of the accident. In Seattle, one of the requirements for operating as a driver with a TNC is to carry insurance. The press release for the deal did not specify what the insurance minimum to qualify would be, but we can only hope that it would be sufficient to cover the majority of accidents that could occur. Lyft claims it gives its drivers up to $1 million in liability insurance in addition to the driver’s own insurance. Uber grants $1 million of 3rd party liability and $1 million of underinsured or uninsured motorist coverage only DURING trips. When not actively transporting passengers, active Uber drivers have up to $100,000 injury insurance and $25,000 property damage insurance provided by the company.

Even then, as with the case of the 6 year old girl who was killed by an Uber-approved driver, it is possible these insurance policies would not adequately cover the costs of a wreck. Then the question on whether or not a TNC would be liable becomes prevalent.

The IRS uses a three category test to determine if someone is an independent contractor, looking at the level of behavioral control, financial control, and the relationship of the parties.

The first quality, behavioral control, is at its core the level of control the company has over the independent contractor. For a TNC, this would be its ability to connect drivers with passengers. The TNC in this case does not directly control the actions of the driver, but they are responsible for the actual initiation of the transaction so a reasonable level of control might be argued. The second quality, financial control, means that the contractor has to have the freedom to work for other companies and maintains his or her own work equipment, among other qualities. For a TNC, their drivers are clearly responsible for the purchase and care of their vehicles (although we have no idea if Lyft provides their distinctive pink mustache for free to drivers). Looking at the relationship from this lens makes it more difficult to place liability on the TNC. The final factor is the absence or presence of a contract. Having a written contract is clear evidence that an individual driving for a TNC is an independent contractor, while the absence of a contract makes this relationship less clear.

To summarize: for the most part the insurance policies provided by TNCs like Lyft and Uber should cover less serious injuries. However; if injuries are more substantial there is a case to be made that the TNCs are liable for their driver’s actions, allowing the injured party’s attorney to seek additional damages in order to assure their client gets the help they need.

If you or someone you know has been injured in an accident involving taxis or a TNC in the greater Seattle area, contact Scott McDonald and Associates for aggressive, experienced legal assistance. 

]]>, 19 Jun 2014 13:58:00 EST
<![CDATA[Two killed in crash on "highway of death"]]>

Two individuals died and two others sustained severe injuries Monday afternoon after a head-on crash on Highway 522. Officials state that at least one of the injured victims is a child. 

The crash was a two-car collision that occurred at 3:20 p.m. east of Fales road. The crash involved a Ford Fusion and a Mitsubishi Eclipse. Both occupants of the Ford Fusion were killed as a result of the accident. 

Highway 522 is notorious for being a very dangerous highway for Washington drivers. The Washington State Department of Transportation is making efforts to widen 522 and improve the safety of the route but this is not improving the entire highway which has been the site of 1,780 accidents, 1,359 injuries and 47 deaths over 15 years. Unfortunately, the current efforts of the WSDOT are focused on widening just a 4 mile stretch of SR 522 (that said this is one of the most traveled sections of 522). 

The bad conditions of 522 are a result of the rapid suburbanization of the Snohomish County area which led to increased traffic on 522. Unfortunately 522 has not been significantly renovated to accomodate this traffic safely. 

I am in favor of looking into a modest increase in the current gas tax that will be used to fund road renovations (the 4 mile 522 renovation is funded primarily by the current Nickel Gas Tax) to make roads like 522 safer for the public. However, I would have to look at an analysis of the economic impact of such a tax increase to be certain if that is the best route to take for Washington State drivers. 

I have previously commented on the safety of a connecting road, U.S. Route 2, and why I believe further road improvements are necessary. 

If you or someone you know has been injured on Highway 522 or any other roadway, contact the law offices of Scott McDonald and Associates for aggressive, experienced legal assistance that will assure you get the help you need. 

]]>, 17 Jun 2014 12:31:00 EST
<![CDATA[Who usually pays in an insurance case?]]>It is an unfortunately prevalent notion that car accident attorneys file suit against the insurance company of the at-fault party. The at-fault party is typically the named defendant. For example, John Doe may be represented by Allstate Insurance but the suit will be against John Doe. However, the insurance company stands behind the at-fault party and it pays for the damages in a personal injury case. This is due to the indemnification agreement between the at-fault party and his or her insurance which states the insurance company is responsible for paying the damages (up to a policy limit). However, in the case where the damages are higher than the policy limits, the attorney will then typically obtain compensation from the client’s underinsured motorist coverage.

If the client does not have underinsured motorist coverage, or if the underinsured motorist coverage is insufficient, then the attorney may choose to file suit in order to recover damages from both the insurance proceeds and the at-fault party’s reachable assets. Oftentimes there are no reachable assets in this situation leaving the client with a deficient settlement. This is why it is very important to have underinsured motorist coverage. It should also be noted that with the insufficient insurance coverage situation there are strategies to maximize the net recovery to the client. It is prudent to have ample underinsured motorist coverage because often the persons who are drunk drivers and cause the most severe injuries are driving with low insurance limits. 

If you or a friend has been in an accident it is very important that you consult with legal counsel to assure you get the best recovery possible. Contact us today for a free consultation to see how we can help you. 

]]>, 11 Jun 2014 13:14:00 EST
<![CDATA[Doctor accused of sexual misconduct in operating room]]>personal injury, medical liability. Credit to Komonews










A Seattle anesthesiologist, Arthur Zilberstein, MD, has had his license to practice suspended by the state Medical Quality Assurance Commission on allegations of sexual misconduct. This misconduct includes “sexting” during surgeries in which he was acting as attending anesthesiologist. Zilberstein also allegedly sent out a photo of himself wearing hospital scrubs with his genitals exposed. Additionally, he illegally prescribed drugs (mostly Oxycodone) to individuals at least 29 times without any proper evaluation or diagnosis. Zilberstein is also accused of having sex with one of the patients he prescribed Oxycodone to while he was at work. Zilberstein accessed images of his patients for sexual gratication. To top this list off, he allegedly made racist comments to one of his patients. 

To address the legal issues that arise from a situation like this, we have to consider several concepts. First, Zilberstein is responsible as a doctor to provide quality medical care to his patients. By prescribing drugs incorrectly (especially a highly controlled schedule II substance like Oxycodone), he is in fact harming his patients. This abuse of prescription writing, if true, is medical malpractice. If it is shown that Zilberstein was prescribing drugs in exchange for sexual contact with his patients, it may also be assault and may also make Zilberstein liable for damages. The “sexting” during surgery supervision does not meet the standard of care required of a doctor but unless it can be shown that this activity caused damage to the patient then and only then would it be actionable medical malpractice. It is likely Dr. Zilberstein’s patients’ surgical records will be reviewed to assure that no harm arose from his misconduct in the operating room. 

]]>, 10 Jun 2014 16:20:00 EST
<![CDATA[The legal issues of a sleeping driver crash]]>One woman was killed and four others injured near Toutle, WA on the afternoon of June 8th because the driver of their vehicle fell asleep at the wheel. The driver, Srinivisan Subraminam, was driving west on SR-504 at about 4:30 p.m. when he fell asleep causing his car to veer across the roadway and strike a rock embankment.

The dead passenger, Mythili Gopalan, was not wearing a seat belt at the time of the accident. As we’ve mentioned in a past news post, seat belts are perhaps one of the most important safety devices an individual can wear to prevent injury while traveling in a car.

It is clear in this accident that Mr. Subraminam was at fault for the accident. This means that in order to win damages for their injuries, the passengers of the vehicle would sue Mr. Subraminam for a payout from his insurance. In fact, we have worked on cases before where a wife sued her husband for damages in order to maximize the recovery for that case. The spouse would have to be sued in their own name but their insurance company is responsible for paying the compensation. There is an advantage to this because the at-fault spouse will presumably support the injured spouse’s claim and the jury will likely conclude that any verdict would be paid by insurance.

The fact that Ms. Gopalan was not wearing her seat belt, under Washington state case law is not relevant for determining whether she has comparative fault (see Amend vs. Bell). However, if the cause of death makes it apparent that Ms. Gopalan was not wearing her seat belt, the jury may determine this fact. While legally this revelation should not affect damages awarded, this information could reduce a jury’s goodwill towards the injured party, thus lowering damages in a kind of jury nullification.

If you or a loved one has been injured in a crash like this we encourage you to contact us for a free consultation to discuss your case. A helping hand is just a phone call away. 

]]>, 09 Jun 2014 16:55:00 EST
<![CDATA[Does my preexisting condition mean I can't get a good result for my case?]]>Despite what an insurance adjuster may tell you, having a preexisting condition does not prevent you from achieving a successful result for your personal injury case. Oftentimes individuals with preexisting conditions are more susceptible to injuries from car accidents, motorcycle accidents, pedestrian accidents, or bicycle accidents. This situation can fall under the “Eggshell Plaintiff” rule. This rule states that an offending party does not receive a reduction on what they owe for damages even if the injured person is injured substantially more than usual (given pre-existing conditions or other vulnerability). In other words, the law must take the injured party as they are when determining damages.

The exact damages depend on:

1. Whether the condition was dormant or

2. Whether there are ongoing prior problems within approximately one year of the wreck.

In the first situation the injured party can recoup all the damages caused because the impact triggered the condition to become active in the injured party. An example of this would be if an injury caused an individual with an undiagnosed heart condition to suffer from a heart attack due to a chest injury. In the second situation the injured person can recover the damages associated with the aggravation of the pre-existing condition. An example of this situation would be if an injured party with a recovering fractured bone had their injury worsened by the impact.

I recommend you take the time to talk to an attorney about your case and your preexisting condition to see how much help is available for you. I have handled cases in the past with similar circumstances and I am confident I will be able to provide you with the help you need. 

]]>, 05 Jun 2014 14:27:00 EST
<![CDATA[Eight Injured in a head-on collision on State Route 2]]>On Monday evening, a massive car crash occurred on State Route 2 in Snohomish County that injured eight people, including five children. In total, five vehicles were involved in the pile-up. The crash was caused by a Dodge Durango rear-ending a slowing Chevy Blazer that then impacted into the Chrysler minivan stopped and attempting to turn left. The Durango then veered left into the oncoming traffic, crashing into a Dodge Caravan. The vehicle behind the Caravan attempted to avoid the collision and ended up in a roadside ditch.

The driver of the offending Durango, Heather Lee, confessed to having smoke “a bowl” of marijuana earlier that day. The driver stated she was distracted primarily due to her two kids fighting and screaming in the back seat. Depending on the exact time in which Ms. Lee smoked, she may have been impaired at the time of the accident. Washington State’s laws for marijuana DUI is noted to be fairly strict so it is very likely Ms. Lee was above the legal limit of intoxication at the time of the crash.

However; Valerie Ballard, a driver involved in the crash who has lived on State Route 2 her entire life, claims that much of the incident was due to the poorly maintained highway. Ms. Ballard believes the state should widen the road to four lanes to reduce the likelihood of similar accidents.

I share a similar opinion. Unfortunately, the costs of road maintenance are very high and there isn't a sufficiently high gas tax in place to improve road conditions in Washington State. In the future I will be writing a more detailed blog post regarding my opinions on the pros and cons of a higher gas tax.

If you or a friend has been injured due to a car accident like the one above, Scott McDonald and Associates has extensive experience handling cases like yours. I encourage you to contact us today for the helping hand you deserve.

]]>, 03 Jun 2014 17:01:00 EST
<![CDATA[UW Shortstop finds success despite past car crash]]>Huskies junior shortstop Erik Forgionne is considered one of the key players on the NCAA-bound University of Washington team. His success comes in spite of a past car accident in which his vehicle flipped five to six times after being struck by a drunk driver. The 19 year old drunk driver fled the scene of the crash on foot, but was eventually caught and sentenced to 90 days in jail. The drunk driver didn’t even remember getting behind the wheel of his car before the accident occurred. Forgionne’s accident, which occurred in Tacoma, was unique in that, despite the severity of the accident, Forgionne remained relatively unharmed and was able to walk away from the accident.

Forgionne suffered from a sore back that took two weeks to recover but the true cost of the accident was its damage to Forgionne’s psyche. The Seattle Times interviewed UW coach Lindsay Meggs who said “I think [the accident] took its toll on him. Like all young kids he thought he was invincible and in just an instant was brought back to reality…I think it grounded him a little more and made him appreciate being closer to home, to his family. I think when he got over that, it gave him some peace and some serenity.” Forgionne is now the Pac-12 defensive player of the year and is a very likely pick for the MLB draft next week.

In our experience handling cases like this involving serious accidents and drunk drivers we’ve found it is often the mental scars that take the longest to heal. Forgionne’s physical recovery was quick, but it seems that his mental recovery took more time. Luckily, this didn’t stop Forgionne from having a .981 fielding percentage, the highest in the Pac-12. 

]]>, 30 May 2014 15:00:00 EST
<![CDATA[The true costs of highway crashes]]>A new study published by the National Highway Traffic Safety Administration (NHTSA) shows significant annual costs for highway crashes. The study, valuing the economic loss and societal harm of 2010 highway crashes, values this cost at $871 billion. $277 billion of this value is due to economic costs while $594 billion is due to societal harm from loss of life and pain and suffering.

The NHTSA study “The Economic and Society Impact of Motor Vehicle Crashes, 2010” available here also details some of the behavioral factors that contribute to 2010’s 33,000 highway deaths, 3.9 million injuries and 24 million damaged vehicles. The study shows that three of the main driver behaviors that cause accidents (speeding, drunk driving and distracted driving) account for 56% of the economic loss and 62% of the societal harm of motor vehicle accidents. Overall, about 9% of these costs are paid for from public sources such as federal or state governments.

Some interesting snippets of the study show the following:

  1. The impact of intoxicated driving increases with injury severity. Crashes involving an intoxicated person account for 48% of all fatal injury crash costs. We've discussed the severity of drunk driving crashes before.
  2. 98% of societal harm from crashes involving alcohol occurred in crashes where drivers had a BAC of .08 or higher.
  3. seat belt use prevented 12,500 fatalities and 308,000 serious injuries, saving $349 billion in comprehensive costs.
  4. Over the past 36 years, seat belts have prevented 280,000 fatalities and 7.2 million serious injuries saving over $8 trillion in comprehensive costs.

Moral of the story: Always wear your seat belt and never drink and drive. Drive safe!

]]>, 29 May 2014 16:39:00 EST
<![CDATA[My opinion on 'presumptive liability']]>King 5 News recently ran a spot on making motorists presumptively liable for injuries to bicyclists. Presumptive liability means that, unless the driver of a car can definitively prove otherwise, the driver is assumed to be at fault for the collision. This is a good idea. In many cases the insurance companies assert comparative fault on the injured person despite little evidence of the same. For example, in a recent case I litigated the insurance company asserted my client was 20% at fault because the other driver had “control of the intersection” even though the other driver was legally drunk and ran a red light. In that case, as trial was approaching, the insurance company paid up but the insurance company’s stubbornness forced my client to file a lawsuit, thus incurring costs of litigation.

In the bicycle versus motor vehicle collisions there are many small issues the insurance company can assert in an attempt to deny an injured bicyclist full payment for the harm caused. In one case I litigated the driver’s insurance company asserted that the bicyclist, who had right of way, should have seen that the offending driver wasn’t looking before he proceeded. This defense was allowed to be asserted. This unfairly reduced my client’s damages. If the collision causes the death of the bicyclist then this presumption would allow liability to be established where it may otherwise be impossible (given the bicyclist would be unable to testify).

There are also many drivers, some of whom end up on juries, that don’t like to share the road with bicyclists. If jurors with this prejudice have the opportunity to use spurious claims of comparative fault they will reduce the damages unfairly.

Finally, the motorist will be able to overcome the presumption of liability by presenting evidence that the bicyclist caused the collision. This proposed law would work as a proof shifting tool so that the process is more just.   While I have had great success in the past with bicycle accidents, this law would ultimately serve to better protect Washington cyclists in collisions with motorists. 

If you have been injured biking, I encourage you to contact me so we can discuss how to assure you get the help you need. 


]]>, 29 May 2014 13:56:00 EST
<![CDATA[Professionalism, diligence, expertise, and knowledge]]>, 29 May 2014 10:58:00 EST