Omaha Personal Injury Lawyer - Motor Vehicle Accidents

An issue of vehicle ownership and negligent entrustment

John Inserra — Fri, 29 Feb 2008 10:30:58 GMT

The Nebraska Supreme court cleared up the issue of ownership requirements and the negligent entrustment of a vehicle involved in a motor vehicle accident in the case of Richard A. DeWester, Personal Representative of the
Estate of Lindsay DeWester, deceased, appellant, v. Kyle W. Watkins, an individual, appellee.

In a nutshell, the Court held:

Based on the Restatement's reasoning, most courts have
framed the relevant issue in a negligent entrustment case as
whether the defendant in a negligent entrustment action had the
right to control the entrusted property, with ownership simply
being one way of proving a right to control. As the Illinois
Supreme Court explained, "entrustment must be defined with
reference to the right of control of the subject property. In
essence, if the actor does not have an exclusive or superior
right of control, no entrustment of the property can occur."16 A
right to control does not always mean ownership, but generally
means that the defendant must have a greater right of possession
or control than the entrustee.

A defendant's ownership of entrusted property is not a prerequisite
to liability for negligent entrustment.

Factually, this is a case where the parents allowed their son to drive the family vehicle owned by the parents. The son allows an underage, possibly intoxicated, teenage friend to operate the vehicle. Unfortunately, she rolls the vehicle and is killed. This action is brought by the estate of the teenage driver claiming negligent entrustment of the vehicle. The only defense to the appeal of a summary judgment is that the son did not own the vehicle and under prior Nebraska law could not be held to have negligently entrusted the vehicle to another. The Court overruled cases to the contrary, making it clear that the real determination is control and not ownership, and did not rule on the issue of contributory negligence under the comparative negligence statute , as it was not before it. So the Court reverses and remands for further proceedings.

Originally posted at InjuryBoard by John Inserra

New Automobile Safety Ratings

John Inserra — Thu, 10 Jan 2008 13:43:16 GMT

New automobile ratings may be found at www.safecar.gov. A good web site when buying a car. A good website when investing defects and recalls.

For more information on this subject, please refer to our section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by John Inserra

First DWI Court in Nebraska

John Inserra — Wed, 28 Nov 2007 08:48:58 GMT

Scottsbluff County Nebraska has instituted a "post sentence" DWI court, the first in the State of Nebraska.
The goal of the court, like its drug court counterparts, is to get people enrolled in alcohol and/or drug treatment programs, mental health counseling as needed, and regular participation in Narcotics Anonymous or Alcoholics Anonymous programs.

A "post sentence" court is one that operates after a judge sentences a person convicted of DWI. It is not a program of diversion, but rather an alternative to strict punishment by allowing individuals to participate in programs and still be monitored closely by the DWI court.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by John Inserra

Nebraska case Interprets Underinsurance Statute of Limitations

John Inserra — Sun, 11 Nov 2007 16:02:16 GMT

The Nebraska Supreme Court further defined the underinsurance statute of limitations found at Neb. Rev. S tat. Â§Â§ 44-6401 to 44-6414 (Reissue 2004) in the case of Connie Reimers-Hild, appellant, v. State of Nebraska et al., appellees.
filed on November 9, 2007. .

Guide One Insurance Company was the tortfeasor's motor vehicle liability insurer. Guide One settled Reimers-Hild's claim, the plaintiff, against Johns, the defendant driver, for the policy limit of $25,000, before June 8, 2003, when the 4-year statute of limitations would have expired on that claim. As part of the settlement, Reimers-Hild executed
a "Release of All Claims" in which she accepted the $25,000 as consideration for "the final release and discharge" of her claim against Johns. Reimers-Hild never filed suit against Johns.

The defendant, State of Nebraska as the employer to defendant Johns, alleged as an affirmative defense, that Reimers-Hild's claim for underinsured motorist benefits was barred because the underlying tort claim had "expired" within the meaning of Â§ 44-6413(1)(e).

The court found:

the statute operates to disallow a claim for uninsured or underinsured motorist coverage
where the insured has allowed the underlying tort claim to become barred by not settling or bringing suit within the period of limitations. Such a provision is unnecessary when the underlying tort claim has been settled, whether or not the insured files suit against the tortfeasor before settling. Whether the insurer's interests have been adequately preserved by the settlement is a subject addressed by other provisions of the Uninsured and Underinsured Motorist Insurance Coverage Act.14

Since the case against the defendant driver had been settled, the court found there is no issue as to the statute of limitations on that case. As long as the plaintiff follows the Uninsured and Underinsurance Motorist Coverage Act, the case may be brought within the applicable 5 year contract statute of limitations.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by John Inserra

What makes a medical charge reasonable?

John Inserra — Wed, 26 Sep 2007 08:50:09 GMT

The case of Reyher v. State Farm Mutual Automobile Insurance Company out of the Colorado Court of Appeals reversed the trial court's summary judgment on the issue of what a medical doctor should or should not be reimbursed by the automobile insurance company based on a submission of a Auto Injury Management database.

In October 2001, Reyher was injured in an automobile accident and required medical treatment. State Farm notified her that "[t]o determine reasonable and necessary amounts, [it would] compare [her] provider's charges to a Medicode database (the database) through the Sloans Lake AIM [Auto Injury Management] program." The database contained "charges for the same or like services in the specific geographical area where the service was performed."

The Colorado court found the question as to the reasonableness of the bill when the bill differs from the computer program created a question for fact for the fact finder.

For more information on this subject, please refer to our section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by John Inserra

Federal Premption and Rental Cars

John Inserra — Tue, 18 Sep 2007 13:22:49 GMT

As reported by American Association for Justice (AAJ):

In a ruling with wide implications for federal preemption and vicarious liability, the U.S. District Court for the Southern District of Florida on September 14 declared the Graves Amendment unconstitutional. That amendment had given immunity to automobile rental agencies for harm caused by their vehicles (Vanguard Car Rental v. Huchon, Case No. 06-10082-CIV-Moore/Garber, USDC SD FL).

For more information on this subject matter, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by John Inserra

ERISA Reimbursement Case of Interest

John Inserra — Wed, 01 Aug 2007 06:35:17 GMT

An ERISA case, Mills v. London Grove Township, decided by a Federal Judge in Pennsylvania did not allow the plan administrator to recover against a special needs trust set up for a dependant of the plan's primary beneficiary. For anyone who deals with ERISA subrogation claims, the judge put his reasoning into reality when he states:

In the final analysis, the real dispute generated by ACS's opposition is between ACS and the taxpayers who, in the future, will be called upon to bear the minor's medical expenses. ACS was paid premiums for its coverage; the taxpayers have not been.

Originally posted at InjuryBoard by John Inserra

Cell Phone Use Laws While Driving

John Inserra — Mon, 16 Jul 2007 11:07:16 GMT

Concern over the increasing use of cell phones has prompted legislatures in a number of states to attempt to ban, or at least restrict, cell phone use while driving, particularly among novice drivers. Attached is a chart outlining the use of cell phones while driving for each state.

For more information on this subject, please refer to our section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by John Inserra

Verdict Against the City of Omaha

John Inserra — Fri, 29 Jun 2007 10:06:21 GMT

A Douglas County District Judge awarded $837,000 to Dorcas Davis, 46. Davis experiences seizures, memory loss and eye movement problems because of the accident seven years ago. The award was made against the City of Omaha for failing to install a stop sign at the intersection of 17th & Burt Street at the proper height.

For more information on this subject, please refer to our section on Cars and Motorcycle Accidents.

Originally posted at InjuryBoard by John Inserra

New Jersey case allows minor impact photographs

John Inserra — Fri, 15 Jun 2007 08:53:46 GMT

The New Jersey Supreme Court has allowed photographs of a minor rear end collision to be admitted into evidence on the issue of causation without the need for expert testimony. The battle will continue as to whether photographs showing minor or no damage to vehicle will be admissible to either prove or disprove a cause and effect injury from the accident. The reasoning is interesting because it concludes that everyone knows that small impact equals small injury, great impact equals great injury. While this is the usual argument, I would like to know on what foundational base that opinion is based. It appears that the acceptance of the conclusion may not be correct or based in any scientific fact according the biomechancial studies. How many people walk away from horrendously bad impact accidents without being hurt?

Originally posted at InjuryBoard by John Inserra