California Civil Code Section 3294, states:
“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”
“Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”
“Fraud” means “intentional misrepresentation or deceit.”
“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff” or that shows a “willful and conscious disregard of the rights or safety of others.”What are some of the common scenarios where punitive damages are awarded?
In order to be successful in obtaining punitive damages, you must have sufficient evidence to show that one of the above definitions apply under a higher burden of proof (clear and convincing evidence) than a normal civil claim preponderance of the evidence). The difference means that the evidence must be in the plaintiff's favor much more strongly than the 51% standard of a typical civil claim. However, there are many instances where punitive damages apply to either a personal injury or an employment claim. Some common examples include the following:
- Car accident claims where the defendant was driving under the influence of alcohol or drugs (DUI/ DWI) at the time of the accident.
- Intentional torts (assault, battery, sexual assault, sexual abuse, etc.)
- Some wrongful termination claims
- Cases of fraud
Since these claims allow you to recover additional damages above and beyond just those meant to compensate you for your losses, it is important that you consult with an attorney on these claims as soon as possible following the incident giving rise to the claim to ensure that the evidence needed to prove your claim is properly secured, gathered, and presented at trial.
The question is often asked: “I was just in a car accident, do I need a lawyer?”
Not every claim which you are considering against another party requires an attorney. The underlying facts of your particular circumstances will really determine when you need to involve the services of an attorney. For instance, if you are involved in an automobile accident which was not your fault and but did not sustain any injuries, then you may be successful in handling the claim without an attorney. However, if you were injured, you will be best served by consulting with an personal injury attorney.
After the accident, the first thing to do is obtain as much information as possible regarding the other driver, the vehicle and the circumstances. If possible get photos that document the damage to each vehicle. At some point following the collision, insurance adjusters for each driver involved will contact you to obtain information about your claim, including your property damage, medical bills, lost wages, and medical records. Remember that the adjusters are there to evaluate whether a claim should be paid. Although you should be honest, you must remember that any information that you provide especially statements, may complicate the process of settling your claim. Frequently, the insurance adjuster is seeking to prove your fault or diminish the value of your claim. In such instances, your best course of action is to retain an attorney before you speak with anyone regarding the circumstances of the collision. Even when fault is clearly placed on the other driver, adjusters may attempt to “low ball” you with an offer that is not fair for the injuries and damages you have suffered.
Another consideration regarding the decision to involve an attorney relates to the amount or availability of insurance coverage to pay your damages. If the person who has injured you (in a car accident or otherwise) has multiple types of insurance and policies, it is not always easy to discover that information. The person might have insurance with separate companies which the adjuster with whom you are negotiating is not aware. An attorney will be able to discover this information and help level the playing field.
If you did not get injured, or if you suffer minimal injury or damages, it is frequently not worth getting an attorney involved. You should not go to an attorney with the hope or thought that he will make your damages higher by helping you get unnecessary medical treatment from “plaintiff friendly” doctors. These types of claims not only cost you more in the long run, but also slow down the judicial system.
This does not mean that you should not get thoroughly checked out by your physician following an accident. If you are unsure whether you are injured you should consult with a medical provider for an evaluation. Be honest with them and do not downplay or exaggerate your injuries.Sometimes injuries which at first seem minor, develop into serious life altering conditions. Do not assume that just because you are able to leave the site of any accident (automobile or other), that you are medically o.k. Get your own doctor to perform a thorough examination.
Contact the Law office of Sean M. Patrick for a free no obligation consultation for any of your personal injury claims.
Every state has its own time limits in which you are able to take legal action to redress a wrong. These time limits are called statutes of limitations, and they vary according to the type of claim you wish to pursue. The law is inflexible, and these time limits are generally inflexible, meaning if you do not file a lawsuit with the specified time you will be unable to recover for your injuries or damages. Below you’ll find California’s statutes of limitations for many common types of lawsuits. You should consult with an attorney to fully evaluate your potential claim, and determine which limitations period applies.
- Medical malpractice actions: Three years from the date of injury or one year from the date of discovery of the injury, whichever occurs first. (There are exceptions for minors.)
- Breach of an oral contract: Two years.
- Breach of a written contract: Four years.
- Personal injury claims (for example: dog bites, auto collisions, slip and falls, premises liability, motorcycle accident, wrongful death, etc.) : Two years.
- Employment Discrimination, Harassment or Retaliation: Under California’s Fair Employment and Housing Act (age, race, sex, disability, national origin, etc.) – Claims must be initially filed with the Department of Fair Employment and Housing within one year of the discrimination/harassment/retaliation. Once the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in court. However, under federal rules, specifically under Title VII, ADEA and ADA, claims in California must be initially filed with the Equal Employment Opportunity Commission within three hundred days. Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in federal court.
In California, drivers are required to carry liability insurance. Proposition 213, also known as the Personal Responsibility Act of 1996 provides that that those who are in an automobile accident that do not carry automobile liability insurance as required by the California Financial Responsibility Laws are not entitled to recovery of non-economic damages for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages. The provisions of Proposition 213 are embodied in the Civil Code §§ 3333.3 and 3333.4.
You should always make sure that you have insurance on your vehicles and that any vehicle you drive is insured.
An exception to Proposition 213 occurs when the driver of the “at fault” vehicle was under the influence of alcohol or drugs at the time of the accident. Additional exceptions to Proposition 213 include minors, and those individuals making a claim for wrongful death damages.
Whether you have been in a vehicle collision, or have been injured as the result of another accident, there are a few things you should do to ensure that your rights are protected:
THINGS YOU SHOULD DO AFTER AN ACCIDENT:
- File an accident report
. Regardless of the circumstances that lead to your injury, you need to file a report. If you were in a vehicle collision, you should insist that a report is filed with law enforcement to ensure the facts are accurately preserve. If you are injured on the premises of a business, you should file a report with the manager or owner. Attempt to get a copy of the report, or the information that will allow you to get a copy of the report once it is completed.
- Obtain Information
: Information that you should collect includes the name, address, and phone number of any witnesses, or people involved in the accident. If possible, and practical, obtain photographs of the vehicles, and/or the area where the accident occurred, and any visible injuries. (Avoid taking photographs if it will place you or others in jeopardy.) Get insurance information where appropriate. In California, drivers are obligated to carry insurance, and provide that information when involved in a collision.
- GET HELP
: There are two types of help you will need after an accident medical, and legal.
- Medical Care: The timing and nature of the medical treatment that you obtain following a collision or other accident is often overlooked. When you are injured, you should seek medical attention as soon as possible. Tell the physician what happened, and be honest about every injury or complaint regardless of how minor it seems at the time. Do not exaggerate your complaints, but also do not ignore or minimize them.
- Legal Assistance: Obtain legal advice as soon as possible. DO NOT give any information about the accident to an insurance adjuster, or make any recorded statements without consulting with an attorney first. Also, do not sign any document without consulting with an attorney. Both of these are common mistakes most people make following an accident that jeopardize their rights and any recovery they may be entitled to.
Uninsured / Underinsured Motorist Insurance coverage is the most important coverage you can have. In California, it has been estimated that 1 in 4 motorists are driving uninsured (UM) or underinsured (UIM), that is without adequate liability insurance protection. What this means is that they either have no insurance or not enough to cover any responsibility they have as a negligent driver who injures others. When you suffer personal injuries from an UM/UIM, even when you are not driving, you will be covered for the full extent of your injuries up to your policy maximum. To make sure you are covered, you should purchase uninsured/ underinsured motorist coverage in the highest amounts you can reasonably afford.