SETTLEMENT VS. TRIAL

The fact that a lawsuit has been filed in Kootenai County, or elsewhere in Idaho, usually means that attempts at settlement have been fruitless. Nevertheless, the settlement option will continue to reappear during the course of the pretrial process, and even during trial.

Sometimes a lawsuit is filed because the opposing party has not make an offer of even $1. Under such circumstances, a lawsuit is obviously necessary. However, as that recalcitrant party begins to feel the sting of litigation expenses, his or her settlement posture may change. Even if the party being sued (the Defendant) believes he owes nothing, he may get to the point where paying some settlement amount is less expensive than going all the way through trial.  Plus, in almost every case, nobody can’t predict with 100% accuracy what the results of the trial will be. This is especially true in jury trials, where ten strangers drawn from the community will make the ultimate decisions in the case.

This principal also holds true for the party who has filed the lawsuit. Evidence that has been produced in pretrial discovery may cause the party bringing the lawsuit (the Plaintiff) to have second thoughts about the strength of her case. Moreover, except in a narrow category of cases, Idaho courts require each party to pay their own litigation costs and attorney fees. This, if a person sues for the sum of $25,000, and the case goes through the entire formal Discovery process AND a full trial, the total costs and attorney fees may approach that amount.

It is for these reasons that most Idaho judges encourage (and in some cases order) the parties to consider participating in formal mediation. In mediation, a specially trained mediator meets with the parties for several hours, or even a full day, to see if he can assist them at arriving at a compromise solution that, although imperfect, at least partially satisfies both of them.

The widespread use of mediation in both civil and criminal cases has reduced the number of cases going to trial, and thus relieve the overburdened judges to attend to other trials, motions and miscellaneous judicial responsibilities.

Overall, the use of formal mediation has reduced the costs of obtaining justice for the citizens of Idaho.

CHOOSING A PERSONAL REPRESENTATIVE FOR YOUR WILL

When working with an attorney to prepare a Will, most people will spend a great deal of time thinking about which family members they wish to leave their property to, but very little time thinking about who will be the Personal Representative of their estate upon their death.

In Kootenai County and elsewhere in Idaho, the Personal Representative is the person who, working in concert with the attorney for the estate, actually manages the assets, pays the debts, and distributes the property of the deceased according to the terms set out in the Will. In some states this person is known as the Executor or Executrix.

The job of the Personal Representative (PR) is very important. First, the PR must marshal and protect all of the assets of the estate. For example, if the deceased owned a now empty home, the PR must make sure that the utility bills are paid so that the pipes don’t burst if the electricity is turned off by the electric utility company. The PR must make a careful search to find all of the deceased’s assets. This includes items that may be in bank safe deposit boxes, land located in other states, IRAs and retirement plans, bank accounts, etc.  The PR must also file an inventory of all the assets with the court, with the assistance of the estate’s attorney.

A Notice to Creditors must be published in a local newspaper of general circulation, notifying potential creditors that they must formally present their claims or the debts will be forever extinguished. If a creditor’s claim is presented, the PR has only a limited to time to deny the claim if it is believed to be illegitimate.

Finally, after all the creditor’s have been paid, the PR must distribute the remaining assets to the persons that the deceased has named in the Will.

Unless the estate is very large, the PR does not get paid for all of this work. Of course, the attorney handling the estate will be doing much of the work, with the PR assisting.

It is often the case that persons preparing their Will simply tell their attorney to name their eldest child as the PR. Sometimes that’s a good idea and sometimes it’s not.  Here are the qualifications that make a good Personal Representative.

  1. The person is honest. Unfortunately, we have seen cases where the PR takes assets that should be going to a different family member.
  1. The PR must be a tidy and organized person. This is a critical. If a person is honest but has chaotic personal habits, the estate will end up a mess and cost extra money in attorney fees.
  1. The PR must have a good relationship with other heirs and family members.
  1. The PR must have the time needed to devote to the duties of a PR.

Unless all four criteria are met, that person should not be chosen as the PR. In such cases it may be more practical to name an accountant or other professional as the Personal Representative. This may add cost the probate process, but may be less costly than naming an unqualified person to be the Personal Representative.

TRAPS IN LAWSUITS AGAINST IDAHO GOVERNMENT ENTITIES

The general statute of limitations for negligence cases in Idaho is two years, as of this writing (May, 2020). This is the statute of limitations that would apply to car accidents, slip and fall cases, negligent supervision of children, and many other types of injuries that result from the carelessness or negligence of others. If a lawsuit is not filed within the statute of limitations, then the case is forever barred.

Sometimes, in fact many times, the negligence involved is committed by a government entity, whether it is the State, County, City or other government entity. Although the two year statute of limitations applies to most negligence claims against government entities, this right to sue must be preserved by filing a Notice of Tort Claim within 180 days of the act of negligence. This technical detail has resulted in hundreds of injured citizens of Kootenai County and other Idaho locations being denied the right to a jury trial for their injuries.

The Tort Claim form is not very complicated, and one can probably be completed without an attorney. Details on the claim form can be found at:

https://legislature.idaho.gov/statutesrules/idstat/title6/t6ch9/

However, what many people don’t realize is the fact that the 180 day Tort Claim rule also applies to entities that are owned by a government entity. For example, many Idaho hospitals are owned and operated by the local county government. Therefore, if a person believes that he or she has been injured due to medical malpractice at that hospital, a Tort Claim form must be filed within 180 days, or the right to sue within the two year statute of limitations is gone.

It is for this reason that persons seriously injured due to the negligence of other should promptly contact an experienced trial lawyer as soon as possible after the injury.

Call or text the Bendell Law Firm for a free initial consultation if you have been serious injured due to the negligence of others.

OVERCOMING POLICY LIMITS IN NEGLIGENCE LAWSUITS

One of the most tragic scenarios that can arise in serious motor vehicle collisions in Kootenai County and elsewhere in Idaho, is where the insurance policy of the at-fault driver is too small to cover the damages of the injured Plaintiff.

At the time of this writing (May, 2020), Idaho law only requires drivers to carry $25,000 of liability insurance. Many are the catastrophic injuries resulting from car crashes, where the medical bills are well into six figures, and the injured Plaintiff has sustained lifelong disability or permanent loss of income.

There are two ways that a Plaintiff’s attorney can surmount the $25,000 insurance policy limit. The first way is purely theoretical. The attorney can sue the at-fault driver and attempt to collect the full judgement against the assets of that driver. The problem here is that most persons who purchase the minimum policy limits have very few assets. If they had significant assets, they would have probably purchased a larger insurance policy.

The second method that a Plaintiff’s attorney may utilize is to put the at-fault driver’s insurance company in a “bad faith” posture – sometimes referred to as “opening the policy.” Here’s how it works.

Every insurance company has a fiduciary duty to protect the financial interests of the insured policy holder. This includes the obligation to settle the lawsuit within policy limits if feasible to do so. Consider the following hypothetical:

If driver John Smith causes a car wreck, and only has $25,000 of liability insurance, the Plaintiff suing for the victim can put together a well organized ‘demand letter’ to the insurance company, detailing all of the past and future medical care, loss of income and disability, that the victim has sustained. Assume that figure totals $250,000.  The Plaintiff’s attorney can then make a formal “policy limit” demand on the insurance claims adjuster to pay the full $25,000 policy limits, with a time limit on accepting the offer.

In some situations such as this, the adjuster will try offer a lesser amount, say $20,000, hoping that a desperately injured person will take any money as long as it provides money right now. However, in making the lower counter-offer, the insurance company has legally rejected the $25,000 policy limit proposal of the Plaintiff’s attorney. Then, at trial, if the jury returns a verdict of $250,000, the insurance company is in what is termed a “bad faith” situation. The at-fault driver now has the ability to sue his own insurance company for failing to settle for policy limits when it had the opportunity to do so.

As a practical matter, in most such scenarios, the insurance company will save itself the expense of a second lawsuit by simply paying the Plaintiff the $250,000 jury verdict.

Insurance claims adjusters are only doing their job when they try to hold down the expense of car accident settlements. However, when they overreach, and fail to honor their fiduciary obligations to their policy holder, it can be much more expensive for the insurer in the long run.

WILL IDAHO BE DELUGED WITH COVID-19 LAWSUITS?

In the wake of the Covid-19 pandemic, will Kootenai County and other Idaho counties see a flood of litigation stemming from physical or economic harm caused by the virus?

In the case of Archer v. Carnival Corporation et al, filed in the Northern District of California, passengers of the cruise ship Grand Princess, who had to be quarantined at an Air Force base just north of San Francisco, have filed a $5 million class action against the cruise line, alleging that the ship owner was aware of the potential danger to passengers because a sister ship, the Diamond Princess, had two passengers die of the virus before the Grand Princess set sail. The lawsuit also alleges that the ship delayed in imposing cabin quarantine and failed to take necessary sanitation procedures.

Idaho law concerning the duties to customers was stated long ago by the Idaho Supreme Court in the case of Hall v Boise Payette Lumber Co., where the Court held:

“To one who enters a place of business under the proprietor’s implied invitation to the public for purposes of dealing with him in any line of business there conducted,  the proprietor owes a duty of maintaining the premises in a reasonably safe condition and of exercising reasonable care in protecting him from injury.”Utilizing this legal principle, one could envision the following cases being filed in Idaho:

Utilizing this legal principle, one could envision the following lawsuits being filed in Idaho:

—       A restaurant patron sues the restaurant because she contracted the disease because the restaurant tables did not conform to the required 6 foot distancing rule.

—       A parent sues a school district because their child contracted the disease because the children were allowed to play sports in close contact with each other.

—       The adult children of nursing home residents sue after their elderly parents die from the virus because the nursing home failed to test and segregate the residents of the nursing home.

As you can imagine, the possibilities are endless. Right now, most Idaho residents are worried about when they can return to their job and/or business to resume life-as-normal.  But the legal fallout from this virus may be litigated well into 2021 or even beyond.

DEALING WITH PRETRIAL ‘DISCOVERY’

Prior to 1954, lawsuits generally were commenced, and then went to trial some months later, without a lot of interaction between the attorneys. The problem with this format is that it led to “trial by ambush.” That is, the attorneys on both sides of the case really didn’t know what the opposing side was going to do in terms of strategy and admitting documents into evidence at trial.

In 1954, the U.S. Supreme Court amended the civil rules of procedure quite dramatically, by establishing four types of pretrial discovery procedures. Soon, virtually every state adopted similar rules, including the State of Idaho, which rules are applied in Kootenai County and other counties in the state.

Now, the attorneys on each side of the case can send the opposing side four types of discovery requests. These are:

  1. Interrogatories.
  1. Requests for Production.
  1. Requests for Admission
  1. Depositions

Interrogatories – these are basically written questions asking the opposing party to respond in writing to questions about the relevant issues in the case. For example, in a personal case, the insurance company lawyer might ask for a list of all doctors that the Plaintiff has seen during the past 10 years. The insurance company’s attorney would then use that information to subpoena all those medical records.

Requests for Production – these are requests in which the attorney requests the opposing party produce documents, records, photos, audio recordings, etc. that are relevant to the case. For example, in a breach of contract lawsuit, one of the attorneys may request a copy of all letters, emails and text messages sent or received by the opposing party dealing with the contract at issue.

Requests for Admission – Here, the party propounding the request states a factual statement and requests that the opposing party either admit or deny that statement. For example, in a construction defect lawsuit, the owner of the property might send the builder a request that says: “Admit that you used the incorrect type of concrete for the foundation of the building.”  If the receiving party denies the statement, and it is later proven at trial to be true, then the party propounding the discovey request will be awarded all of the attorney fees and expenses incurred to prove the proposition at trial. This attorney fee award takes place even if that party loses the lawsuit itself!

Depositions. These are oral question and answer sessions that take place in the presence of a licensed court reporter, and are subject to the penalty of perjury for false answer. The court reporter then transcribes the testimony into a written volume that can be used at trial. Depositions can be taken of the parties in the case as well as witnesses.

The use of these modern discovery rules has not only done away with “trial by ambush,” but has also increased the likelihood that cases will settle before trial because each side will know exactly what the other side possesses in the form of evidence and testimony to be used at trial.

CAN A PERSON BE CONVICTED OF DRUNK DRIVING IF HIS BA IS BELOW .08%?

Drivers in Kootenai County and elsewhere in Idaho can be prosecuted if they drive while legally impaired, either from alcohol or drugs (even drugs prescribed by a physician).

With regard to alcohol, there is a specific Idaho statute which makes it illegal to drive with a blood alcohol level blood concentration greater than .08%. The law was previously .1% and, years ago, some states allowed a blood alcohol level of .15%.

States have gradually been reducing the level of illegal alcohol level based upon a large number of scientific studies. These studies demonstrate that all drivers become legally impaired at some point between .06 and .08. For this reason alone, a driver with a blood alcohol level could be prosecuted if the arresting officer’s field sobriety tests demonstrate that the driver was too impaired to drive, even if his BA level was .07%.

Typically, the investigating officer will perform the following tests at the scene, after a suspect driver has been pulled over:

—       The line walk test (asking the person to walk 10 steps, heel to toe, in a straight line.

—       The leg lift test (asking the person to lift one leg off the ground and to keep it there for a segment of time).

—       The finger to nose test (the driver is asked to close his eyes, lean his head back, and have his arms extended and then touch the tip of his nose with a single finger from each arm).

—       The Horizontal Gaze Nystagmus test – see http://www.fieldsobrietytests.org/horizontalgazenystagmus.html

If the driver performs poorly on these tests, he can be prosecuted for DUI even though his blood level was not .08% or above.  Other factors leading to an arrest are whether the person has a flushed face, slurs his speech or has bloodshot eyes.

The second reason a person with a blood alcohol level below .08% can be prosecuted is because the statute refers to the impairment while driving. For example, if a person is asleep in his car, parked by the side of the road, it may have been several hours since he was driving his car. Because the human body continually metabolizes alcohol during and after drinking, the driver’s blood alcohol may have been at an illegal level several hours ago when he was driving, even though his alcohol level is legal after he has had a few hours sleep by the side of the road.

NON-COMPETITION AGREEMENTS IN IDAHO

When an employer hires a new employee, it is often customary to require an important or key employee to sign a non-competition clause. These clauses take many forms, but they are generally designed to prevent the employee from leaving the firm and starting a competing firm, and utilizing the skills and knowledge which the employee obtained at the first firm.

In 2016, the Idaho legislature passed law which allowed reaffirmed the right of an employer to sue the employee if the employee’s new business caused irreparable harm to the business of the prior employer. In fact, the law stated that, in the lawsuit, the key employee had the burden of proof of showing that his or her new business was not harming the business of the former employer. In other words, if the employer sued the ex-employee, the ex-employee had the legal burden in trial to prove that his new business was not harming the prior employer’s business.

This law was quite a radical change, because normally it is the party bringing the lawsuit (the Plaintiff) who has the burden of proof at trial.

In 2017, the legislature reversed itself and removed this burden-shifting language. So we are back to where we were before. If the prior employer files suit, he has the burden of proving to a judge or jury that the new business started by the ex-employee is harming his business.

However, keep in mind that nothing has changed the essential content of the law; namely, that non-competition agreements are still VALID and ENFORCEABLE in Kootenai County and elsewhere in Idaho.  Therefore, think very carefully before signing such an agreement when taking a new job.

MILD TRAUMATIC BRAIN INJURIES ARE NOT MILD

Patients in Kootenai County who have sustained a head injury in a car crash or other accident are often diagnosed with having sustained a “mild traumatic brain injury.” This diagnoses may exist even in the absence of any break in the skull (sometimes called a ‘closed head injury’).

However this technical medical terminology does not mean that the consequences of the brain injury are mild. Patients who have sustained a mild traumatic brain injury may go on to exhibit the following symptoms and difficulties:

—       Loss of consciousness for a few seconds to a few minutes.

—       Headaches

—       Nausea or vomiting

—       Speech difficulties

—       Sleep disorders

—       Problems with memory

—       Depression and/or anxiety

—       Mood swings

—       Inappropriate displays of anger

—       Difficulties with maintaining balance

—       Fatigue and drowsiness

The above symptoms can cause the patient to have difficulties functioning in the workplace and can cause family disputes at home.

Mild traumatic brain injuries are often missed when a patient is brought to a hospital emergency room after a car crash. The E.R. physician is primarily looking for broken bones, skull fractures, ruptured arteries and other injuries that require immediate medical intervention. Patients who have sustained a mild traumatic brain injury (TBI) may not show abnormalities on a head x-ray or other diagnostic imaging performed at the emergency room.

However, family members and loved ones should be on the lookout for the above symptoms in the days and weeks after the injury. If they appear, the patient should be brought to a specialist such as a neurologist to determine if a brain injury has occurred.

If you or a family member believe that you have sustained a brain injury in Idaho, call attorney James Bendell for a free initial consultation to see whether monetary damages may be recovered for this injury.

WHAT HAPPENS WHEN A PERSON DIES WITHOUT A WILL?

A prudent person or married couple will go to an attorney to have a Will drafted so that their property goes to the people they intend after their death. However, it is very common for people to postpone having a Will drafted because the subject of death is naturally unpleasant. It is therefore common for residents of Kootenai County and elsewhere to die without a Will. When this happens, the heirs left behind must still deal with the assets and liabilities left behind after a person dies.

Generally, unless there are little or no assets, it will be necessary to initiate a Probate proceeding to dispose of the assets and pay the liabilities of the deceased.

A probate attorney will file a Petition in court, and will initially ask the probate judge to appoint a Personal Representative for the Estate. The Personal Representative is the person who handles the day to day affairs of the estate. For example, if the estate of the deceased includes a house, the Personal Representative (PR) will make sure that the heating and other utility bills are paid until the probate is concluded. In fact, all assets must be marshaled and protected by the PR – that is one of his or her duties.

Before distributing any assets, the debts of the deceased must be determined. These include known debts (such as utility bills) as well as unknown debts. To make sure that no unknown debts are missed, the attorney for the PR will publish a Notice to Creditors in the local newspaper. The notice will advise all potential creditors that, unless they file a creditor’s claim within a certain period of time, those debts will be forever barred. This publication of the Notice to Creditors is very important. Why?  Because if the PR distributes the assets of the Estate to the heirs, but has failed to publish a Notice to Creditors, then a year later or more a creditor may surface and claim that the deceased owed him money (For example, claiming that the deceased injured her in a motor vehicle accident). In such a scenario, the PR might be held personally liable to pay that debt. However, if a Notice to Creditors was published in a newspaper, and that creditor did not make the claim within the prescribed time limit, the debt has no validity whatsoever.

Once the debts have been disposed of, the PR will distribute the assets of the deceased based upon Idaho’s laws of intestacy. In other words, instead of the property going to the persons the deceased wished, the property is distributed by Idaho statutes.

Therefore, if a person or married couple wants to make sure that their property passes as they wish, and want to select the personal who will act as the Personal Representative, it is important that they have a Will prepared by an attorney experienced in that field.