UTAH CAR ,TRUCK & MOTORCYCLE ACCIDENT INJURIES
Please select from below for applicable Utah statutes and explanations:
* This page is not intended to describe all facets of personal injury law in the State of Utah. It simply seeks to answer common questions of potential litigants with personal injury/auto accident cases. This page does not establish an attorney/client relationship, nor does it dispense legal advice
For an online consult, e-mail attorney Edward Stone:
edward@stonelawfirm.net.
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Recovering for injuries sustained in an auto accident is a long and arduous process. It is rare when settlement or verdict can be reached within a year of the accident. Two years is a more reasonable expectation. Immediately following the accident, the victim should concentrate on nothing more than healing and rehabilitating. The time for litigating the claim can wait; the statute of limitations to file a lawsuit in a motor tort case in Utah is 4 years from the date the injury was either caused or the time the victim should have been aware of the injury.
The time to initiate the process of legal recovery begins when the victim finishes treating. This is not to say that attorneys cannot be helpful before this time. In fact, attorneys can often ensure that complete and accurate medical records are kept on behalf of the victim. Attorneys can often protect the credit rating of their client by negotiating payment of uncovered medical bills out of the proceeds of settlement, thereby avoiding negative credit reporting. Upon completion of treatment, the case is postured for a demand. Medical documents from each provider of services must be obtained and calculated. A letter is written to the negligent person's insurance carrier demanding damages for injuries, pain and suffering, lost wages, loss of consortium, etc. As a general proposition and a rule of thumb, recovery is an amount between two and three times the medical costs, plus lost wages, plus additional damages if the accident results in a permanent injury.
Sometime after the letter is tendered the insurance carrier will respond. This response may take any of the following forms: (1) an answer acknowledging coverage; (2) a letter denying coverage for actions taken by the insured falling outside the policy's coverage (i.e. drunk driving, etc.); (3) an answer making an offer of settlement. This is rare, because it is usually in the best interest of the insurance company to retain their money as long as possible.
If initial negotiation an agreement cannot be reached, suit is filed. The insurance company will usually file an answer on behalf of their insured. Trial is set from a year to a year and a half after the date of filing. Discovery is filed by both parties. Discovery is a means of finding out the factual basis for claims or defenses. Following written discovery, the parties may choose to depose witnesses or experts.
A non-binding arbitration meeting is in attempt to settle the case before trial. A settlement conference is held with the judge, then a pre-trial conference to discuss motions, etc. Finally, the day of trial arrives which can last anywhere from half a day to several weeks. The judge or the jury renders their decision, and the case comes to a close unless either party appeals the decision within thirty days.
Upon appeal, the case goes to the Utah Court of Appeals for review. There, after oral argument, the court decides either to remand the case back to the District Court or to uphold the trial court's judgment. The Court of Appeals' decision can be appealed to the Utah Supreme Court, but permission must be granted by that court to review the Court of Appeals' decision.
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In order to establish recovery enabling liability, a victim in a car accident must demonstrate the following elements by a preponderance of the evidence:
(1) that the person responsible for the accident owed a duty to the victim.
(2) that the duty was broken;
(3) that the person's negligence was the proximate cause of the victim's injuries, and
(4) that the victim sustained damages (discussed separately).
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Duty of care- the driver of a motor vehicle must use reasonable care. Reasonable care is that degree of caution and attention which a person of ordinary skill and judgment would use under similar circumstances. Every driver has a right to assume that others will obey the law.
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Breach of duty (negligence)- when a driver does not operate their vehicle with reasonable care, they have broken the duty owed to other drivers. Violations of a traffic statute or regulation do not, of itself, constitute negligence in Utah. However, if the violation of the traffic statute or regulations is the proximate cause of the injury (see below), then a prima facie case is established and the burden shifts to the defendant to justify his/her violation.
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Proximate cause- when an act, omission, or a combination of both constitute a breach of the duty of care owed to other drivers, and the act or omission is the direct and continuing cause of the injury, the act or omission is said to be the proximate cause of the accident. There may be more than one cause of an accident where the negligent acts of several drivers work together to cause the injury. The question posed is: but for the act of the driver, would the injury have occurred? If the answer is yes, the act is a proximate cause of the injury. If the answer is no, that driver is not liable to the victim in most cases.
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78-27-38. Comparative negligence.
(1) The fault of a person seeking recovery shall not alone bar recovery by that person.
(2) A person seeking recovery may recover from any defendant or group of defendants whose fault, combined with the fault of persons immune from suit, exceeds the fault of the person seeking recovery prior to any reallocation of fault made under Subsection 78-27-39(2).
(3) No defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributed to that defendant under Section 78-27-39.
(4) (a) In determining the proportionate fault attributable to each defendant, the fact finder may, and when requested by a party shall, consider the conduct of any person who contributed to the alleged injury regardless of whether the person is a person immune from suit or a defendant in the action and may allocate fault to each person seeking recovery, to each defendant, and to any other person whether joined as a party to the action or not and whose identity is known or unknown to the parties to the action, including a person immune from suit who contributed to the alleged injury. In the case of a motor vehicle accident involving an unidentified motor vehicle, the existence of the vehicle shall be proven by clear and convincing evidence which may consist solely of one person's testimony.
(b) Any fault allocated to a person immune from suit is considered only to accurately determine the fault of the person seeking recovery and a defendant and may not subject the person immune from suit to any liability, based on the allocation of fault, in this or any other action.
Notes:
Sometimes, the person entitled to recovery is also partially responsible for the injury. In Utah, that concept is called contributory negligence. The Plaintiff's recovery will be reduced by the percentage the finder of fact finds the Plaintiff to be negligent. The percentage can be reduced by as much as 49%. However, if the Plaintiff is found to be 50% or more negligent that the Defendant, the Plaintiff is barred from recovery.
Very similar to the theory of contributory negligence is assumption of risk.
If an injured party
(1) had knowledge of the risk of the danger;
(2) appreciated the risk; and
(3) voluntarily exposed themselves to the risk of the danger, the injured party may be barred from recovery.
A common factual scenario is an accident in which there is an injured passenger and the driver was drunk. Did the injured passenger know the driver was drunk? Did the passenger know that the driver was unable to drive the car as an ordinary prudent person would?
These are factual questions to be answered by either the judge or jury.
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The goal of awarding damages is to put the victim, as far as awarding money damages possibly can, in the position he/she was prior to the accident. There are three types of damages that may be awarded in Utah: (1) non-economic, (2) economic, and (3) punitive.
(1) Non-economic damages- defined as pain, suffering, inconvenience, physical impairment, loss of consortium, or other non-monetary damage. Punitive damages are specifically excluded from this category. The following factors should be considered in awarding non-economic damages for bodily injury:
(1) the personal injuries sustained and their extent and duration;
(2) the effect such injuries have on the overall physical and mental health and well being of the plaintiff;
(3) the physical pain and mental injury suffered in the past, and that which with reasonable probability may be expected to be experienced in the future; and
(4) the disfigurement and humiliation or embarrassment associated with such disfigurement.
A pre-existing injury which has been aggravated is compensable to the extent of the aggravation. To determine non-economic damages, the judge or jury should compare the health of the plaintiff before the injury to his/her condition following the accident. Also to be considered is the permanence of the injury and the extent to which the injury denies the plaintiff from undertaking and enjoying normal employment, hobbies, and pursuits. Mental and emotional injuries such as fright are compensable if there are "objective" manifestations of the injury.
Non-economic damages for personal injury actions are capped by law to $250,000 per person.
(2) Economic damages- defined as loss of earnings and medical expenses.
(1) hospital bills;
(2) physician bills;
(3) medical equipment;
(4) medications;
(5) special care;
(6) physical therapy;
(7) psychological therapy;
(8) changes in living environment (i.e. loss of sight, paralysis);
(9) transportation to and from medical facilities.
Economic damages also include loss of earnings in the past as well as any reasonably probable loss of future earnings due to injury. Lost earnings include wages, commissions, benefits and pensions. To determine the award for impairment of earning capacity, the judge or jury must:
(1) determine the extent of the impairment; and
(2) assess the consequences or losses, which result from the impairment.
To calculate the amount of future earning capacity loss, the judge or jury can consider:
(1) the plaintiff's earning capacity before the injury;
(2) probable duration of the impairment;
(3) the extent to which the injury disabled the plaintiff from engaging in occupations for which he would have been qualified but for the accident.
(3) Punitive damages- the purpose is to punish outrageous conduct and to discourage similar conduct in the future. In order to recover punitive damages, a plaintiff must demonstrate "actual malice" by the defendant. This means that the injured party must show, by clear and convincing evidence, that the defendant's conduct was motivated by evil motive, intent to injure, ill will, or fraud.
There is theoretically no limit to a punitive damage award, but the judge has the power to reduce excessive punitive damages.
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Personal Injury Protection (PIP):
If the insured chooses not to waive PIP, which is now optional, PIP satisfies at least the first $2,500 of medical, hospital. Additional PIP coverage can be purchased through the provider. PIP benefits extend to the driver, family resident's of the insured's household, those operating the vehicle with the permission of the insured, passengers, pedestrians. However, if the insured chooses to waive PIP, those who would otherwise recover under PIP also waive coverage. The practical effect of PIP is to guarantee payment of medical bills and lost wages are compensated before litigating liability. In fact, insurance companies are required to pay PIP benefits within 30 days of receiving satisfactory proof of compensable loss. The PIP statute specifically denies stacking coverage, i.e. receiving PIP benefits under more than one policy. There are exceptions to this general rule.
Uninsured/Underinsured Motorist Coverage:
Utah law requires every motor vehicle insurance policy issued to provide uninsured motorist (UM) coverage. The minimum UM coverage is commonly referred to as _____, meaning that if an accident occurs and there is an uninsured motorist at fault, a single person could recover as much as $_____ from their own UM policy. If more than one person is injured, the policy will pay out up to $________ for the accident, to be split among the injured parties according to severity of injury.
As with PIP, the stacking of UM policies is prohibited. However, it is possible for an injured party's own UM coverage to make up the difference between the at fault driver's liability limits and the injuries suffered in the accident. Example: a driver carries a UM policy with limits of $50,000/$100,000. Another driver, who carries the minimum 20/40 liability coverage, causes a collision which results in $50,000 wroth of medical bills to the injured party. The at fault driver's policy can only pay a maximum of $20,000 to any one person, according to the 20/40 policy. The injured driver's UM policy can be tapped for the difference between the liability coverage and the injuries, subject to the limits of the policy. In the example above, the injured party's UM coverage would pay out $30,000, to bring the total recovery to $50,000.
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Documentation- Much can be done in the early stages of the case. Specifically, pictures should be taken of the accident scene as soon as possible. The reason for this is simple: as more time passes, more things can change. Different seasons depict scenes in different ways, there may be construction, signs may be moved or replaced. There will be no way to accurately reconstruct the accident scene if there are not contemporary photos. The same applies to the vehicles involved in the accident. Pictures must be taken at or near the time of the accident. While callous sounding, this is especially true if there is blood on the vehicles or if the vehicles are in a particularly visually impactful condition (i.e. upside down, in a ditch, etc.). Photos of injuries should be documented often, from the time of the injury until the time maximum recovery is reached. Use something that provides a reference, such as a rule or other item.
Statements- statements of the defendant need to be taken, or if the defendant has made a statement to police, the statement needs to be located immediately. Many cases are won or loss well before attorneys are ever contacted based on statements given by those involved in the accident or witnesses.
The investigating officer, assuming the police responded to the scene, will prepare a police report, which are often the most important document in the case. In addition to those witnesses listed on the police report, it is important to investigate the scene as soon after the accident as possible, as there may be additional witnesses not listed in the police report. One of the "gotcha" strategies employed by defense counsel is that the injury sustained in the accident was the result of a prior condition or a prior injury.
Thus, it is critical to obtain a complete medical history and have the treating physicians evaluate the present injury vis a vis the prior accident, to truly determine the source of the injury.
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