MEDICAL PAYMENTS COVERAGE: FREE MONEY OR CRASH & BURN?

August 6, 2013 by

By: Matthew B. Drexler*

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Being injured in a motor vehicle accident is scary enough. Trying to sort out the complicated insurance regulations and policy language just compounds your experience. You may have heard that insurance companies have to offer you “Med Pay” to cover medical expenses resulting from an accident. This article provides pertinent information about Med Pay and the interplay between Med Pay benefits and common health insurance policies.

Med Pay is short for “Medical Payment Coverage” and is offered by automobile insurance companies as part of an automobile insurance liability policy. Med Pay funds are intended to pay for medical expenses stemming from an automobile accident. Med Pay, however, is not a replacement for health insurance. Med Pay and Health Insurance can be used, in tandem, to compensate an injured driver or passenger for medical expenses and injuries occurring after a serious automobile accident.

To be clear, Med Pay benefits are available to anyone in your vehicle, not just the named insured driver or owner. Med Pay benefits are also available regardless of who may be at fault for the accident.

By law (effective January 1, 2009) insurance companies offering Colorado insurance policies are required to offer at least $5,000 in Med Pay coverage. However, Med Pay is available in larger amounts. For example, a policy holder can obtain $100,000 coverage (per person) in Med Pay benefits to protect the policy holder and passengers in the event of a serious accident. Med Pay benefits can also be declined by a policy holder; however, such a waiver must be in writing. Even then, it is the insurance company’s responsibility to produce the documentation verifying a waiver of Med Pay. Otherwise, the insurance company may still be liable for payment of $5,000 towards medical expenses regardless of whether the insurance company received the associated premium.

By law, an automobile insurance company is required to set the minimum $5,000 benefit aside for thirty days to pay claims made by trauma care treatment providers (e.g. ambulance, trauma physicians) who provided treatment after an automobile accident. Clearly, Colorado’s Med Pay requirement (codified at C.R.S. § 10-4-635) is intended to protect emergency medical treatment providers; however, Med Pay benefits can be a substantial resource for an insured involved in a serious auto accident. After the thirty day period expires, the $5,000 benefit becomes available to pay other medical bills incurred. If a policy holder opts for higher Med Pay benefits, the policy holder may be entitled to the immediate use and disbursement of proceeds over the required set-aside. In other words, a policy holder who purchases a policy with $35,000 in Med Pay benefits may be able to access the additional $30,000 beyond the initial $5,000 to cover medical bills. The more serious an accident, the more important Med Pay becomes as a financial planning tool to cope with the increasing costs of medical care related to automobile accidents.

Here’s an example of how Med Pay benefits works: You and your passenger are injured in a serious auto accident. Your medical expenses, to date, total $50,000. Your passenger is more fortunate with $10,000 in medical expenses. If you maintain a $50,000 Med Pay policy, then you would have adequate coverage limits to cover both you and your passenger. Obviously, the more insurance you carry, the more protection and peace of mind you afford yourself.

While we recommend obtaining as much Med Pay coverage as possible, the decision often comes down to personal risk tolerance and practical financial limitations. Some folks rationalize that purchasing Med Pay is cheaper and therefore forego purchasing health insurance. This may make sense for automobile accidents; however, Med Pay benefits are not available for any other type of injury or accident (e.g. slip and fall, household accidents).
A colleague of mine refers to Med Pay benefits as “free money!” She’s right. Section (3)(a) of C.R.S. § 10-4-635 expressly provides:

An insurer providing benefits under medical payments coverage in the amount specified in this section or in a greater amount than the amount specified in this section shall not have a right to recover against an owner, user, or operator of a motor vehicle, or against any person or organization legally responsible for the acts or omissions of such person, in any action for damages for benefits paid under such medical payments coverage. An insurer shall not have a direct cause of action against an alleged tortfeasor for benefits paid under medical payments coverage.

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TRUCKING & BUS ACCIDENTS – SERIOUS ACCIDENTS DEMAND SERIOUS ATTORNEYS

July 22, 2013 by

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC

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Serious accidents involving public or private transportation (including trucking accidents, airline accidents, passenger or commuter railway accidents or accidents involving trains, buses, or limos) are more complicated than passenger vehicle accidents. Often, an injured party faces more red tape, insurance regulations and procedural hurdles that are actually designed to limit or eliminate liability.

The attorneys at THE GASPER LAW GROUP are serious about Helping People First and are well positioned to stand up for the rights of those injured in serious trucking or bus accidents. Trucking and bus accident litigation involves far more than a police accident report and filing a lawsuit. Trucking and bus accidents involve commercial and/or governmental entities with significant resources and defense lawyers whose job is to limit liability of their insured drivers and trucking company clients. When they other side has a team of professionals and experts with the shared goal to limit your recovery, call THE GASPER LAW GROUP to assemble your own team.

Trucking accidents also involve some of the most serious injuries, which require additional analysis as to the impact, permanency and ongoing nature of medical treatment. Trucking accidents and other catastrophic accidents are not for the faint of heart. If you are the victim of a serious accident and just want a quick (yet undervalued) settlement, please don’t call us. THE GASPER LAW GROUP is dedicated to working with our clients to maximize potential recoveries whether the recovery is achieved by strong negotiation based on experience and a command of the facts of your case or whether the recovery is based on solid litigation and courtroom presentation. Serious accidents require diligence, knowledge of the major transportation industry and the ability to operate under pressure. Oftentimes, success is a result of stamina to withstand the litigation process that can be intentionally delayed by the insurance companies and the attorneys retained specifically by the insurance companies to represent their drivers.

As it turns out trucking and bus accidents are some of the most avoidable accidents. Federal and state regulations set stringent requirements for truck drivers that a trucking company must adhere to for the protection of the general public. These accidents routinely involve speeding, improperly secured loads, aggressive driving or tailgating, impairment from alcohol, drugs or over-the-counter medication, or failing to adhere to the usual and customary rules of the road. A recent trend involves distracted drivers who may be texting (mobile text messaging), emailing or surfing the internet when the collision occurs.

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I Just Got Sued, Now What?

July 17, 2013 by

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC

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There you are simply minding your own business when a stranger approaches you, hands you a document and utters those shameful words, "You've just been served." Your rather polite response comes natural, "Thank you." If, on the other hand, you flew off the deep end and cursed the process server while chasing him down in your vehicle while hurling the papers back in his face, don’t call our Civil Litigation team (you aren’t the client we want to help quite frankly); instead, call our Criminal Defense team at THE GASPER LAW GROUP.

You next flip through the Civil Case Cover Sheet and Summons as if you have seen it before or already know what it says. You get to the good part, the Complaint and Jury Demand. As you read further, you learn who is suing you and suffer through a one-sided retelling of the facts you thought were long resolved. As you read further, you discover several claims for relief and may recognize some of them (e.g. breach of contract, negligence). You also find some that don't make sense whatsoever (e.g. breach of good faith and fair dealing, breach of fiduciary dury, demand for accounting, quantum meruit, unjust enrichment).

If you are not enraged yet, you will be ... at the end of the Complaint, you discover that the plaintiff is asking for judgment to enter against you together with attorneys fees, costs and interest at the maximum rate allowable by law! More distressing is the fact that the plaintiff doesn't even tell you how much money they want from you! How can this be? They sue you, have the audacity to have you personally served and they can't even give you a dollar figure of what they want? As it turns out, they aren't allowed to; the Colorado Rules of Civil Procedure do not permit a plaintiff to include a dollar amount in the "prayer for relief" (i.e. the section of the Complaint in which the plaintiff summarizes what they want in terms of damages, fees, costs and interest)

The first rule of civil litigation is not to panic. As a close friend and colleague of mine stated recently, frustration and anger begin where knowledge and experience ends. You may be frustrated, enraged and stressed after being sued, and that's okay. But recognize these symptoms and reaction for what they are. They are signals to surround yourself with those who possess the knowlege and experience to handle a civil law suit and keep you out of harms way.

The second rule of civil litigation is don’t ignore a lawsuit. In most cases, the Summons contains deadlines in which to file an Answer and some courts even require that a plaintiff provide the defendant with a blank form to file an Answer.

The third rule of civil litigation is don't do anything until you talk to an attorney. Even if you don't hire one, it is still great advice to learn as much as you can before committing yourself to a particular position in your case. Did you know that you don't have to file an Answer first? It may be important to file another responsive pleading such as a motion to dismiss or a motion to object to personal jurisdiction (can this court even issue orders against you) or to object to subject matter jurisdiction (can this court even hear this type of case). If you file an Answer - you know, the one the Plaintiff was nice enough to provide for you - you may actually waive your right to challenge personal jurisdiction.

The fourth rule of civil litigation (and we won't discuss all 100 rules in this blog article) is to find the right lawyer who will properly analyze your case and put the requisite time into learning the factual background and legal principles involved in your case.

An effective attorney familiar with civil litigation and civil disputes will certainly be able to explain, in lay terms, what the plaintiff is actually seeking. Now, there are some lawyers who will try to tell you that they know how the case will end and will suggest that you settle the case immediately for some value the attorney thinks is reasonable. This is a silly strategy. As a recent illustration, we recenty saw a case where a client came from another lawyer's office for a "second opinion" on the value of the case to compare with the other lawyer's on-the-spot evaluation. We told the client that we had absolutely no idea what the settlement value of the case looks like. Puzzled, the client explained that the other attorney could offer almost an exact amount. We explained, nicely of course, that we could, in fact, tell the client a number if it made the client feel better but that we weren't in the business of telling folks what they want to hear; we are in the business of giving solid legal advice based on the facts and circumstances of the case. Any number we would have offered would have been pure speculation and would ignore critcal information that would be disclosed or discovered throughout the case.

It turns out that the settlement value of a case has little to do with what one attorney thinks is a good value; it has so much more to do with the motivations and position of the plaintiff and what may be learned (good and bad) in the earlier stages of the case. In this case, the first lawyer offered an amount of $50,000 to settle a case and reasoned that this amount would actually be cheaper than the cost of defending the case at trial. While true, it ignored a larger issue. It turns out that the plaintiff was a good friend of the defendant and was being pressured by parents and friends to sue the client to recover money damages. Knowing that (because we asked the questions and listened to the full background), we were able to conduct an early settlement conference (without the parents and friends) to focus on what the lawsuit would do to the friendship between the plainitff and the client. In the end, the case settled for a much more reasonable amount and the parties were able to leave the settlement conference knowing that the money issue was behind them; they moved on with life and preserved a relationship that would have, nearly guaranteed, been destroyed in the litigation process. The first lawyer was absolutely right, $50,000 was probably less than taking the case to trial. Nevertheless, experienced lawyers learn not only about the facts of the case but will also explore the dynamics and personal relationships behind a case to encourage a more reasonable settlement or, if settlement cannot be achieved, to better prepare the case for trial.

Much of an attorney's job involves uncovering facts and then determining how to present those facts in a favorable light. Finding an attorney that will do this instead of focusing on an off-the-cuff case valuation can be challenging. We invite you to contact The Gasper Law Group, PLLC to learn more about our law firm and to determine if we are the attorney best suited for you, your case and your goals. The Gasper Law Group offers free initial consultations and is committed to Helping People First!

So, what should you do after being sued?

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First Party Bad Faith Insurance Claims – Is Your Insurance Company Treating You Right?

July 17, 2013 by

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC

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Have you ever had your insurance company deny a claim you submitted, either in whole or in part?

Perhaps you were left wondering what went wrong and what can be done.
Sometimes a claim is denied for something you, as the insured, did: You let your insurance lapse or you bought the wrong coverage. Often times, though, insurance companies deny valid claims or refuse to pay claims despite the clear requirements of the policy. In these cases, you may very well have a bad faith insurance claim.
Bad faith first party insurance claims occur when an individual or corporation makes a valid direct claim to an insurance company and a settlement is refused, delayed or only partially paid.

Insurance companies owe a duty of good faith and fair dealing to those they insure, and part of that duty requires an insurance company to treat its policyholder’s interests just as their own.

Some signs that an insurer may be acting in bad faith are:
• Denial of payment without a communicated reasonable basis;
• Refusal to acknowledge or reply promptly upon notification of a covered claim;
• Failure to give a fair and reasonable evaluation or inspection of prospective damages;
• Making an unreasonable settlement offer.

The above list is clearly non-exhaustive and an insurance company can act in bad faith numerous other ways. The attorneys at THE GASPER LAW GROUP can determine whether your insurance company – who gladly took your premiums for months or years but has now turned against you – is acting in bad faith and whether you have a legitimate legal claim.
When we can establish that an insurance company has engaged in a bad faith practices, the insurance company is responsible for compensating the injured policyholder, paying the policy contract benefits and, in some cases, punitive damages that are intended to deter similar bad faith behavior in the future.

In certain circumstances, an insured or policy holder may even be entitled to emotional distress damages. For example, in Goodson v. American Standard Ins. Co. of Wisconsin, 89 P.3d 409 (Colo. 2004), the Colorado Supreme Court acknowledged that an insured purchases insurance to avoid suffering anxiety, fear, stress, and uncertainty with regard to a covered loss or accident. The Court explained:

The fact that an insurer finally pays in full does not erase the distress caused by the bad faith conduct. Damages for emotional distress the insured proves are therefore available in actions for bad faith breach of insurance contract upon the showing of the insurer's liability.

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First Party Bad Faith Insurance Claims – Is Your Insurance Company Treating You Right?

July 17, 2013 by

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC

Have you ever had your insurance company deny a claim you submitted, either in whole or in part?

Perhaps you were left wondering what went wrong and what can be done.
Sometimes a claim is denied for something you, as the insured, did: You let your insurance lapse or you bought the wrong coverage. Often times, though, insurance companies deny valid claims or refuse to pay claims despite the clear requirements of the policy. In these cases, you may very well have a bad faith insurance claim.
Bad faith first party insurance claims occur when an individual or corporation makes a valid direct claim to an insurance company and a settlement is refused, delayed or only partially paid.

Insurance companies owe a duty of good faith and fair dealing to those they insure, and part of that duty requires an insurance company to treat its policyholder’s interests just as their own.

Some signs that an insurer may be acting in bad faith are:
• Denial of payment without a communicated reasonable basis;
• Refusal to acknowledge or reply promptly upon notification of a covered claim;
• Failure to give a fair and reasonable evaluation or inspection of prospective damages;
• Making an unreasonable settlement offer.

The above list is clearly non-exhaustive and an insurance company can act in bad faith numerous other ways. The attorneys at THE GASPER LAW GROUP can determine whether your insurance company – who gladly took your premiums for months or years but has now turned against you – is acting in bad faith and whether you have a legitimate legal claim.
When we can establish that an insurance company has engaged in a bad faith practices, the insurance company is responsible for compensating the injured policyholder, paying the policy contract benefits and, in some cases, punitive damages that are intended to deter similar bad faith behavior in the future.

In certain circumstances, an insured or policy holder may even be entitled to emotional distress damages. For example, in Goodson v. American Standard Ins. Co. of Wisconsin, 89 P.3d 409 (Colo. 2004), the Colorado Supreme Court acknowledged that an insured purchases insurance to avoid suffering anxiety, fear, stress, and uncertainty with regard to a covered loss or accident. The Court explained:

The fact that an insurer finally pays in full does not erase the distress caused by the bad faith conduct. Damages for emotional distress the insured proves are therefore available in actions for bad faith breach of insurance contract upon the showing of the insurer's liability.

Continue reading "First Party Bad Faith Insurance Claims – Is Your Insurance Company Treating You Right?" »

Hepatitis A Outbreak Linked to Bad Berries: Are These Berries in Your Freezer?

July 12, 2013 by

By Joi Kush*

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Earlier this summer, an abnormal outbreak of Hepatitis A sparked a federal investigation by the Food and Drug Administration. The FDA concluded that the multi-state Hepatitis A outbreak came from a common shipment of pomegranate seeds sold by a Turkish company, Goknur Foodstuffs Import Export Trading. These seeds were found in Townsend Farms Organic Antioxidant Blend, a popular frozen berry mix sold at Costco stores nationwide. Over 140 people from Arizona, California, Colorado, New Mexico, Nevada, and Utah have been treated for Hepatitis A which has been linked to Townsend Farms Antioxidant Blend.

Since June, Townsend Farms has voluntarily recalled their frozen berry product and Costco has contacted known purchasers to warn them about their potential exposure to Hepatitis A. Two other producers have recalled their berry products because of potential Hepatitis A contamination. As of today, the following products have been recalled:

1. Townsend Farms Organic Antioxidant Blend, 3 lb. bag with UPC 0 78414 40444 8;
2. Harris Teeter Organic Antioxidant Blend, 10 oz. bag with UPC 0 72036 70463 4 ;
3. Woodstock Frozen Organic Kernels, 8 oz. resealable plastic pouches with UPC
Code 0 42563 01628 9

According to the Center for Disease Control (CDC), the contaminated berry products were shipped from February 2013 – May 2013 and were distributed to approximately 21 states: Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Montana, Nevada, New Hampshire, New Mexico, Oregon, Pennsylvania, Rhode Island, Texas, Utah and Washington. As of today, the CDC has confirmed cases of Hepatitis A in Arizona (21), California (69), Colorado (28), Nevada (6), New Mexico (6), and Utah (3). All confirmed cases have been linked to Townsend Berry Organic Antioxidant Blend and Harris Teeter Organic Antioxidant Blend. Currently, there have been no confirmed cases of Hepatitis A linked to Woodstock Frozen Organic Kernels. Because of the widespread distribution of the contaminated berry products, the number of those affected is expected to grow.

See http://www.cdc.gov/hepatitis/Outbreaks/2013/A1b-03-31/advice-consumers.html for more information.

Hepatitis A is a contagious disease usually transmitted through food. The common symptoms associated with Hepatitis A are nausea, fatigue, loss of appetite, dark urine, abdominal pain, pale stool, jaundice, and joint pain. Symptoms appear anywhere from 2-6 weeks after exposure and can last several months. Sometimes Hepatitis A can cause liver failure and death. Unfortunately, there is no treatment to cure Hepatitis A, but you can prevent Hepatitis A through a vaccination called immune globulin (IG).

For more information about Hepatitis A, go to: http://www.cdc.gov/hepatitis/A/index.htm.

Recently, the CDC has found that the outbreak strain of Hepatitis A belongs to a rare genotype 1B. This same genotype has been linked to Hepatitis A outbreaks in Europe and British Columbia. Genotype 1B is predominantly found in Japan and China, but is also found in North Africa and the Middle East.

If you or a loved one has been treated for Hepatitis A that has been linked to Townsend Farms Organic Antioxidant Blend, Teeter Farms Antioxidant Blend, or Woodstock Frozen Organic Kernels, contact the Gasper Law Group to speak to an attorney about a potential claim.

Wells Fargo Sanctioned $3.17 Million

September 13, 2012 by

By Stephen A. Brunette*

Wells Fargo was recently sanctioned by a Bankruptcy Court with a punitive damage award in the amount of $3.17 million dollars, for egregious conduct in failing to comply with court orders to correct admitted accounting errors, and excessive litigation and appeals with a single homeowner. See In Re Jones, 2012 WL 1155715 (E.D. La. Bkrpt. 2012). Rather than summarize the opinion, the following excerpts speak for themselves.

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Wells Fargo has taken the position that every debtor in the district should be made to challenge, by separate suit, the proofs of claim or motions for relief from the automatic stay it files. It has steadfastly refused to audit its pleadings or proofs of claim for errors and has refused to voluntarily correct any errors that come to light except through threat of litigation. Although its own representatives have admitted that it routinely misapplied payments on loans and improperly charged fees, they have refused to correct past errors. They stubbornly insist on limiting any change in their conduct prospectively, even as they seek to collect on loans in other cases for amounts owed in error.
. . .

Wells Fargo has taken advantage of borrowers who rely on it to accurately apply payments and calculate the amounts owed. But perhaps more disturbing is Wells Fargo’s refusal to voluntarily correct its errors. It prefers to rely on the ignorance of borrowers or their inability to fund a challenge to its demands, rather than voluntarily relinquish gains obtained through improper accounting methods. Wells Fargo’s conduct was a breach of its contractual obligations to its borrowers. More importantly, when exposed, it revealed its true corporate character by denying any obligation to correct its past transgressions and mounting a legal assault ensure it never had to. Society requires that those in business conduct themselves with honestly and fair dealing. Thus, there is a strong societal interest in deterring such future conduct through the imposition of punitive relief.
. . .

Wells Fargo’s actions were not only highly reprehensible, but its subsequent reaction on their exposure has been less than satisfactory. There is a strong societal interest in preventing such future conduct through a punitive award. . . . [T]he Court finds that a punitive damage award of $3,171,154.00 is warranted to deter Wells Fargo from similar conduct in the future.

In Re Jones, supra at *8-10, passim.

The Gasper Law Group may be able to assist you in determining, first, whether your mortgage company, lender or loan servicer has acted in a negligent, reprehensible or an egregious manner and, second, whether you have a viable lawsuit or legal claim. Bear in mind that pursuing litigation against large, multi-national financial institutions is not for the faint of heart. We often receive calls from folks who report that their bank or loan servicer misapplied a payment, initiated foreclosure proceedings or even winterized their home while on vacation despite having a consistent payment history. If an attorney tells you that they can “get you a free house” or claims that your case is a “slam dunk,” run! Our experience in pursuing claims on behalf of homeowners spans well before it was popular.

Countless hours, months and years of research have culminated into an experience and expertise few law firms or attorneys will ever be able to provide. While we are indeed sympathetic to those who are suffering as a result of egregious banking practices, we pride ourselves on providing candid, straightforward legal advice to allow you, the client, to make important decisions on how to proceed. The reality is that not all banks are bad; in fact, banks provide a valuable resource and are in business to make money, as are most businesses. However, The Gasper Law Group remains poised and ready to pursue litigation against those financial institutions whose egregious business activities have taken priority over reasonable business practices.

Don’t call us if you think you are entitled to a new house or are entitled to free use and possession of a home you are not making payment on. Do call us if you have been seriously and adversely affected by egregious banking practices and if you want an experienced team of litigators to pursue your rights and claims.

* Stephen A. Brunette is an attorney in the Civil Division of THE GASPER LAW GROUP, PLLC located in Colorado Springs, Colorado. Contact him at (719) 227-7779 or a www.gasperlaw.com.

CIVIL LIABILITY IN GENERAL – THE TRIPOD OF CIVIL LITIGATION

September 13, 2012 by

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC

THE GASPER LAW GROUP represents clients involved in or wishing to pursue a civil claim against another. Civil disputes are lawsuits or claims brought to address a private wrong such as breach of contract, negligence or intentional conduct or to enforce civil remedies such as compensation, damages or injunctions. Civil disputes are not criminal and are not brought by the government but rather by a private party or company against another private party or company.

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Civil disputes range from business deals gone wrong, to neighbor disputes, to enforcement of contractual rights and to personal injuries. The scope of civil remedies and civil actions is extremely broad; however, all civil disputes have three universal traits that must first be analyzed when evaluating a potential claim: (1) Liability, (2) Damages and (3) Collectability (a.k.a the “Tripod of Civil Litigation”). A civil claim is viable if all three legs of the Tripod are standing.

Liability refers to who may be liable or at fault in a particular case. For example, in a motor vehicle accident, we look at who was responsible for the accident (as it turns out, liability can be apportioned or divided among several drivers or factors so an analysis of liability is a bit more complicated that it may first seem).

Damages refer to a party’s injury, loss or financial impact. For example, in a breach of contract claim, we look for whether a party has suffered an impact for the other party’s breach. In another example, we may examine the extent of a person’s injuries after a slip and fall accident.

Collectability refers to the ability of a party to collect a judgment from the other party. After all, it may not be advisable to file a lawsuit against someone who will never have the ability to pay a judgment or verdict.

The main point here is that all three elements must be satisfied. A strong liability case with significant damages may not be viable if you can’t collect in the end. The common example is an uninsured driver without assets or even the potential to ever earn significant income. The good news is that judgments issued in Colorado’s District Courts are good for 20 years and are potentially revivable after that. Depending on a client’s patience and risk tolerance, it may be worthwhile to pursue litigation.

We are often approached by potential clients who have a tremendously favorable liability case against a major, well-insured corporation (read: favorable collectability); however, the injuries are so minor that the damages do not warrant the time and expense of fully litigating a case.

Although rarer, we have encountered folks who have been severely injured yet liability was weak. This scenario can be encountered in a serious motor vehicle accident where the injured party was actually responsible for the collision. Again, this is a fact intensive inquiry and you should not draw a conclusion about liability in a civil suit without speaking to a qualified attorney.

The Tripod of Civil Litigation is fairly straightforward and appears simple to apply or analyze. However, from experience the analysis is oftentimes much more complex and can involve analyzing multiple parties, competing legal theories (e.g. negligence vs. premises liability), and multiple insurance or liability policies.

Before suit is filed and before you decide to retain THE GASPER LAW GROUP, we will analyze each leg of the tripod to determine the viability of your particular case. We provide straightforward, candid advice and present our clients with our best advice on how to proceed, if at all. We offer free consultations and will share our analysis of liability, damages and collectability; and if we don’t have enough information to immediately analyze your case, we will tell you instead of pretending we have answers and information that may not be immediately available.

* Matthew B. Drexler is a Partner & Attorney practicing in the Civil & Business Litigation Division at The Gasper Law Group, PLLC located in Colorado Springs, Colorado. Mr. Drexler can be reached at (719) 227-7779 for more information.

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Legislature May Revisit Evidentiary Issues in Foreclosure Proceedings

August 19, 2012 by

By Stephen A. Brunette
Attorney At Law
The Gasper Law Group, PLLC

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During the 2012 Legislative Session, Rep. McCann introduced a Bill that would have repealed a section of the Colorado foreclosure statutes that allows a foreclosure to proceed without evidence of an endorsement or assignment of a homeowner’s loan to the party attempting to foreclose. Specifically, C.R.S. §38-38-101(6) provides:

(6) Indorsement or assignment. (a) Proper indorsement or assignment of an evidence of debt shall include the original indorsement or assignment or a certified copy of an indorsement or assignment recorded in the county where the property being foreclosed is located.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (6), the original evidence of debt or a copy thereof without proper indorsement or assignment shall be deemed to be properly indorsed or assigned if a qualified holder presents the original evidence of debt or a copy thereof to the officer together with a statement in the certification of the qualified holder or in the statement of the attorney for the qualified holder pursuant to subparagraph (II) of paragraph (b) of subsection (1) of this section that the party on whose behalf the foreclosure was commenced is the holder of the evidence of debt.

C. R. S. §38-38-101(6) (emphasis added).

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Drunk Diving: Civil Liability after the Criminal Charges

August 14, 2012 by

The Gasper Law Group, PLLC

On July 5, 2012 a Colorado Springs Police Department patrol supervisor was northbound on Weber St, at Boulder St, entering the intersection on a green light. A small Saturn sedan driven by an 18 year old woman was approaching the same intersection eastbound. The Saturn apparently ran the red light and collided with the patrol vehicle sending it to the Northeast corner of the intersection as it rotated on its vertical axis nearly 180 degrees. The front right passenger of the Saturn had to be extricated from the vehicle by Colorado Springs Fire Department and was being treated at a local hospital. The driver of the Saturn and the patrol sergeant suffered minor injuries. The 18 year-old driver, was arrested for traffic related charges, including Driving Under the Influence.

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Victims of drunk driving accidents are “victims” in the truest sense of the word. From a victim’s perspective, drunk driving accidents happen suddenly and are rarely avoidable. Even police officers driving marked patrol cars are not spared from this phenomenon. Thankfully, Colorado laws provide relief to victims that suffer injury as a result of drunk driving.

Of course, drunk drivers can be held criminally liable for their actions. The primary statute that addresses alcohol related driving offenses is Colorado Revised Statute (CRS) § 42-4-1301. In cases involving serious bodily injury, drunk drivers are also routinely charged with the felony of Vehicular Assault. Victims can rest assured that drunk drivers are punished in the criminal system through traditional means such as court ordered jail/prison, probation, alcohol classes, and community service. Victims can also recuperate certain expenses through the criminal system. CRS § 18-1.3-603 requires a drunk driver to pay “restitution” to a victim and most prosecutors make timely payment of restitution a condition of criminal probation.

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Do Coloradoans Need Flood Insurance?

August 2, 2012 by

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC

Short answer: "YES".

Homeowner, business and renter policies routinely exclude losses due to flooding or groundwater run off. This could be a significant problem for neighborhoods affected by the wildfires, or otherwise prone to flash flooding.

Intense heat causes the soil to develop a water resistant coating or layer. These are called “hydrophobic soils.” Coarse soils, like decomposed granite, are particularly prone to becoming hydrophobic. The area affected by the Waldo Canyon Fire west of Colorado Springs includes soils made up of decomposed granite; that is, Pikes Peak granite.

So, if you are downhill from the burn area flash flooding may be a problem. The city of Manitou Springs is already considering installing concrete barriers along Fountain Creek, and to reinforce drainage ditches. As the fire becomes more contained federal officials are studying how best to mitigate erosion and run off problems above the Mountain Shadows and Cedar Heights areas.

Flood insurance is only available through a federal law, the National Flood Insurance Program. Private insurers do not offer this coverage. Congress passed the statute after hurricane Betsy hit New Orleans in 1968. The insurance is administered by the Federal Emergency Management Agency (FEMA). Right now there is a 30 day waiting period once one applies for this coverage, and pays the premium. That may not help around here. The monsoon season, with periodic afternoon storms, begins in July.

There are bills in both houses of congress aimed at solving this local problem. Both Colorado Senators, Mark Udall and Michael Bennet, are co-sponsors along with several others form western states. If the law passes, the 30 day waiting period would be waived for property “subject to elevated risk of flood due to wildfire on federal land.” Senate Bill 3320, 112th Congress. The property owner must purchase the insurance promptly after the fire containment date. We do not know how pending policy applications will be handled. And we do not know whether the law will pass – it is in committee now.

Regardless, if you own property that might be at increased risk due to the wildfires, or that is otherwise in a flood prone area, consider acquiring flood insurance.

UPDATE: The law passed.

Insurance and Disaster - The Waldo Canyon Fire

August 2, 2012 by

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC

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The Waldo Canyon Fire displaced a lot of people. Hundreds of homes were damaged or destroyed. Business was interrupted. Hopefully, insurance was in place that covered these losses.

So, what to do now that the shock of the disaster is behind you and you have to pick up the pieces?

If your home or belongings were harmed, document the things that were lost or damaged. The more detail the better. Insurance companies appreciate evidence of loss. This includes photos or video of your home and contents. But even if you do not have receipts or photographs, go ahead and make your claim. This is why you have paid premiums.

Most homeowners’ policies, and some renter policies, provide benefits for temporary living expenses. This could include not only housing but also meals and travel. For example, if an insured lived up the pass and had to commute to work in Colorado Springs through Canyon City, mileage and fuel expense would be significant. If a policy holder stayed with friends or family there will still be benefits housing. It will help if those expenses are itemized and documented.

Many business owners will have business interruption coverage. If the store had to close for several days it is often possible to document the loss by showing what revenue would have been earned. This is a case specific process because each business is unique. Again, while documentation will be important, go ahead and make the claim based on available information.
Insurance companies are prepared to deal with widespread loss, like storms and fires. The disaster adjusters are already in the area. The idea is to make the insured whole by using money to replace what was lost. That includes tangible goods, income, expenses and time. Major disputes will have to do with delay or disagreement with the values of the loss. If you feel you are being treated unfairly, the Gasper Law Group is here to help.