Miller Law, Inc.
Confidence • Integrity • Results
Contact the law offices of Miller Law, Inc. to schedule a consultation regarding legal matters such as personal injury, construction litigation, real estate, and toxic mold mediation.
The following legal definitions are provided as a courtesy, and are not intended to address particular aspects of any case. A personalized consultation with a lawyer is highly recommended to address individual legal concerns.
Accident Reconstructionist
An expert witness, typically an engineer or other professional, familiar with the physics and mechanics of collisions and accidents. Your attorney may hire an Accident Reconstructionist to demonstrate how an accident occurred and the mechanism or cause of your personal injury.
Additional Living Expenses
This phrase is typically associated with insurance claims. Under a typical homeowners insurance policy, the insurance company will pay the insured additional living expenses for having to relocate to a new residence if the damage to the home was caused by a loss which is covered under the policy.
Adjuster
An insurance agent who evaluates property damage and personal injury. Your attorney can take care of all negotiation with the other party's insurance adjuster.
Admissible Evidence
Evidence that can be legally and properly introduced in a civil case or criminal trial.
Age of Majority
The age at which an individual acquires the rights and responsibilities of adulthood. In most states, the age is 18. If the plaintiff in a personal injury lawsuit is under the age of majority, the court must approve a representative for the minor. This person is known as a Guardian ad Litem.
Air Sampling
The term air sampling is used in connection with environmental lawsuits, including toxic mold cases. Air sampling in a toxic mold case can be comprised of two types of sampling. First, the sampling for live or viable mold spores in the air. Second, the sampling for dormant or non-viable mold spores in the air.
All Risk
The phrase "all risk" is typically used in insurance coverage issues. For example, under a typical homeowners' insurance policy, coverage for the structure or dwelling of the property is on an "all risk" or "all perils" basis. This means that all damage to the structure of the property is covered under the insurance policy unless the damage is caused by an excluded peril, which exclusion is specifically delineated in the insurance policy.
Alternative Dispute Resolution
Settling a dispute without a full, formal trial. Methods of alternative dispute resolution include mediation, conciliation, arbitration and settlement.
Amplification
The term amplification is generally used in toxic mold cases. The term is used in connection with the sampling of air inside and outside of a building for the presence of airborne toxic mold. If the inside toxic mold concentrations in the air are greater than the outside concentrations, the toxic mold in the structure is said to be amplified. The amplification of indoor toxic molds can be problematic in that these molds can cause personal injuries and property damage.
Answer
A formal, written statement filed with the court by the defendant in a lawsuit, which answers each allegation contained in the civil complaint filed by a plaintiff.
Arbitration
In a civil case, the court may order a mandatory hearing of the dispute by an impartial third person or persons (chosen by the parties) prior to trial to determine the value of damages in the case. The award may be binding (unable to change) or non-binding. In non-binding arbitration, if either the plaintiff or the defendant is unhappy with the results, they can "reject" the arbitrator's decision.
Aspergillus
A type of toxic mold which is typically associated with water damaged building materials and structures. Aspergillus contains toxins which are extremely harmful to human beings and animals.
Attorney-Client Privilege
What a person says to an attorney is held to be confidential and may not be disclosed by that attorney of his staff, except under special circumstances.
Attorney's Fees
The monetary amount paid to an attorney for the time spent in representing a client.
Bad Faith
Another name for breach of the implied covenant of good faith and fair dealing which is a potential cause of action against an insurance company arising out of their handling on an insurance claim. Bad faith may arise if an insurance company delays in payment of a claim, fails to pay a claim, or improperly denies coverage for an insurance claim. In addition, certain statutory violations can give rise to "bad faith."
Breach of Contract
Breach of contract is a cause of action which can be asserted by a plaintiff in a lawsuit. The elements of such a claim are the existence of a valid, enforceable contract, the defendant's breach of the contract, and damages sustained by the plaintiff. A contract can be breached if a party to that contract fails to perform that contract as intended and as promised.
Bulk Sampling
The term bulk sampling is used in connection with toxic mold cases. It is a method by which one can collect samples of mold from within a structure. There are various types of bulk sampling including actual bulk sampling in which pieces of mold laden building materials are collected, carpet dust sampling in which portions of carpet or furnishings are vacuumed thereby collecting mold and mold spores, and tape samples whereby pieces of cellophane or Scotch tape are placed on mold laden surfaces, lifted and sent to a laboratory for analysis.
Burden of Proof
The plaintiff in a civil case has the burden of proof with respect to establishing evidence of all facts necessary to prove each of the separate cause of action asserted in the civil complaint filed with the court. Plaintiff's burden of proof in a civil case is known as a preponderance of the evidence.
Case Law
Law established in previous decisions of appellate courts in California and the United States.
Cause of Action
The fact or facts which give a person a right to relief in court. These causes of action establish the claims a plaintiff has for damages, loss and/or personal injury. They are set forth in the civil complaint filed with the court by a plaintiff.
Chaetomium
A type of toxic mold which is typically associated with water damaged building materials and structures. Chaetomium contains toxins which are extremely harmful to human beings and animals.
Civil Case
A lawsuit which involves claims between private parties of a non-criminal nature. The other general types of cases are criminal cases prosecuted by the state against criminal defendants.
Civil Complaint
The legal document that begins a civil lawsuit. It is filed by the plaintiff. It states the facts of the case and identifies the causes of action upon which the lawsuit is based.
Civil Procedure
The rules and process by which a civil case is tried and appealed, including the preparations for trial, the rules of evidence and trial conduct, and the procedure for pursuing appeals.
Comparative Negligence
The rule under which the negligence of a party is measured by percentage, and damages are diminished in proportion to the amount of negligence attributable to the person seeking recovery (plaintiff). A plaintiff's monetary recovery in a lawsuit may be reduced by their comparative negligence.
Compensatory Damages
Damages awarded to reimburse a plaintiff's actual costs, such as medical bills, lost wages, as well as costs and damages that are harder to measure, such as pain and suffering.
Conflict of Interest
A situation in which someone, such as an attorney or public official, has professional, personal, or financial interests or obligations and cannot take on certain new business because the prior interest or obligation would make it difficult for that person to fulfill his duties fairly. In evaluating your case, your attorney should check for any potential conflicts of interest which may affect the course of your case.
Construction Defect
A defect in the design or construction of a residential or commercial structure. Construction defects include improper installation of roofs, windows and doors permitting water intrusion and other leaks, failure to install vapor barriers in the foundations of structures, and plumbing leaks.
Contingency Fee
Also called a contingent fee. A fee arrangement by which the attorney is paid by the client out of the settlement or award. If no monetary damages are awarded, there is no fee. Contingency fee arrangements are typically reserved for severe personal injury cases.
Costs
Costs are distinguishable from attorneys' fees. Costs are money which is expended in the defense or prosecution of a lawsuit and are typically comprised of the following type of expenses: copying expenses, fax expenses, expert witness fees, deposition costs, and costs of obtaining records, including medical records.
County
The location in which an incident occurred and in which a lawsuit is filed. There are 58 judicial counties in the state of California. Each of these counties has its own Local Court Rules.
Cross-Complaint
A pleading filed by a defendant in a lawsuit against another person, entity or organization seeking indemnity and/or damages against that person, entity or organization.
Damages
Money awarded by a court to a person (plaintiff) injured or damaged by the acts and/or omissions of another person, organization or entity. Damages can include personal injury damages, property damage, general damages, compensatory damages and punitive damages. Your attorney can help you recover maximal damages.
Defendant
The person, organization or entity against whom a lawsuit is brought. This is the party which plaintiff claims acted wrongfully and caused plaintiff injury, damage and/or loss.
Deposition
A type of discovery device in which a party to a lawsuit or a witness to an incident is compelled to respond to questions orally and under oath. The questions and answers are transcribed by a court reporter and memorialized in a written booklet. The deposition transcript containing the testimony can then be used in later court proceedings including trial.
Disc Injury
Injury to the supporting discs (cushions) located between each spinal bone. Discs that are ruptured or cracked may cause extraordinary pressure resulting in back pain.
Symptoms of a ruptured (herniated) disc may include extreme pain, loss of range of motion, tingling or numbness in the arms and legs.
Discovery
Typically the second phase of a lawsuit in which the parties to a lawsuit are permitted to seek information regarding the factual allegations and basis of the lawsuit and any defenses thereto. Typical discovery devices include depositions, interrogatories, requests for admissions, and requests for production of documents.
Economic Damages
A type of monetary damages that may be recoverable in a lawsuit. These type of damages may consist of objectively verifiable monetary losses such as past and future medical expenses, loss of past and future earnings, loss of use of property, cost of repair or replacement, cost of obtaining domestic services, loss of employment, and/or loss of business and/or employment opportunities.
Economist
An expert witness which is occasionally consulted to determine the value of economic damages, including without limitation loss of earnings, and business valuations. Your attorney may retain an economist to help value your work related losses.
Evidence
Testimony, writings, material, or other things presented to the senses and offered to prove the existence or non-existence of certain facts. Evidence can either be direct or circumstantial. Direct evidence proves a fact and, if true, conclusively establishes that fact. Circumstantial evidence proves a fact from which an inference of the existence of another fact may be drawn. For example, if a person does not witness an automobile accident but later comes upon the accident scene and sees two vehicles which have collided and injured people inside those vehicles, the accident scene provides circumstantial, not direct, evidence that an accident occurred.
The law makes no distinction between direct and circumstantial evidence as to the degree of proof required. Each is a reasonable method of proof.
Expert Witness
A witness with a specialized knowledge, skill, training and/or experience on a specific topic who is permitted to discuss an event or certain facts in court even though he or she was not present at that event. Expert witnesses may be retained to testify with respect to their opinions for or against a particular case.
First Party
A term typically used in the insurance context to denote a claim being made by a homeowner against a homeowners insurance policy for damage or loss to the structure or its contents.
Fracture
A break, rupture, or crack, especially in bone or cartilage.
Fractures occur when a force is applied to a bone that is greater than the strength of the bone itself. Fractures typically take 4 to 8 weeks to heal and most often will need to be immobilized. In extreme cases, fractures will need to be surgically repaired with "pins" and "rods" designed to knit the bone together.
There are four types of fractures, the most common being a simple fracture.
Comminuted fracture: A fracture in which the bone is broken into several parts.
Complicated fracture: A fracture of the bone combined with the lesion of some artery, nervous trunk, or joint.
Compound fracture: A fracture in which there is an open wound from the surface down to the fracture.
Simple fracture: A fracture in which the bone only is ruptured.
Fraud
Fraud is a cause of action which a plaintiff can allege in a civil complaint against a defendant. Conduct may be fraudulent because of an intentional misrepresentation of facts, concealing facts, or making a false promise. Fraud is very serious and may result in punitive damages.
General Damages
Another word for "pain and suffering." These damages may be recoverable by an injured plaintiff and include reasonable compensation for any pain, discomfort, fears, anxiety, and other mental and emotional distress and anguish suffered by the plaintiff and caused by the personal injury and certain to be experienced in the future as a result of the injury.
Guardian ad Litem
A representative of a plaintiff required by the court to represent a plaintiff who is a minor (under age 18). They are appointed by the Court to assist in the representation of the minor in a lawsuit.
Implied Covenant of Good Faith and Fair Dealing
A cause of action which can be asserted in a civil complaint against an insurance company. Typically known as "bad faith." This cause of action can be asserted against an insurance company in certain situations. The primary factual situation in which such cause of action can be asserted against an insurance company is for unreasonable conduct in the handling of an insurance claim. Conduct which can give rise to breach of the implied covenant of good faith and fair dealing include delay in payment of claims, delay or improper investigation of claims, and various statutory violations.
Implied Warranty of Habitability
A cause of action which can be asserted in a civil complaint against a manager or an owner of residential property which is being rented. The typical factual basis for the cause of action is failure of the manager or owner of the property to maintain and repair the property causing injury, loss, damages or inconvenience. A plaintiff who asserts a breach of the implied warranty of habitability claim may be entitled to a reduction in rent or rental reimbursement for past paid rent.
Indemnity
A legal principle by which a defendant seeks compensation from another party for costs and damages incurred as a result of a lawsuit.
In Propia Persona
Latin phrase, "for himself." A person who represents himself in court without the help of an attorney.
Inadmissible
That which, under the rules of evidence, cannot be admitted or received by a court as evidence.
Independent Medical Examiner
A medical professional hired by one side in a personal injury case to evaluate the claimed injuries of a plaintiff. When this examiner is hired by the defendant, the medical professional will look for other possible causes of any personal injury alleged.
Industrial Hygienist
An expert witness who provides opinion testimony concerning the collection, sampling and analysis of toxic mold and other environmental contaminants.
Interrogatories
A discovery device involving a set or series of written questions provided to a party, witness, or other person having information or interest in a lawsuit. The party upon which the interrogatories are provided must respond in writing to the questions and swear under penalty of perjury that their responses are truthful and accurate.
Judgment
The official and authentic decision of a judge or jury on the various causes of action submitted to a judge or jury after a trial.
Jurisdiction
The power or authority of a court to hear and try a case in a certain geographic area.
Jury Verdict
The decision rendered by a jury after a jury trial.
Lawsuit
An action or proceeding in a civil case. It is a term used for a lawsuit or action between two private parties in a court of law. It is initiated by the plaintiff filing a civil complaint with the court.
Liability (Liable)
The breach of legal duty, obligation, or responsibility by a defendant. In order to be compensated for loss, personal injury or damage, a plaintiff must first prove that defendant was "liable."
Litigant
A party to a lawsuit. The litigants are typically plaintiff and defendant.
Litigation
A lawsuit, including all proceedings therein.
Local Court Rules
Regulations governing practice and procedure in the various California courts. Your attorney will be familiar with and advise you regarding local court rules.
Loss of Consortium
Damages to the spouse of an injured person arising out of the need of the spouse of the injured person (plaintiff) to perform more services and/or inability to conduct certain activities with the injured spouse. For example, if a husband sustains personal injuries in an accident, the wife might be entitled to any loss of her husband's love, companionship, comfort, affection, society, solace, and/or moral support, in addition to any loss of enjoyment of marital relations.
Mandatory Settlement Conference
A court-ordered conference in which the parties attempt to informally resolve or settle a lawsuit out of court. Mandatory Settlement Conferences typically within 30 days of the trial date in a "last ditch" effort to resolve the matter short of going to trial.
Mazza v. Schurtz
A case which was tried before a jury in Sacramento County in November of 2001 involving a family of three who resided in an apartment contaminated with toxic mold. The jury rendered a verdict in the amount of $2.7 million for the family of three as a result of personal injuries sustained due to toxic mold in the apartment. This verdict is recognized as the largest jury verdict in United States history for personal injuries arising out of toxic mold exposure. The plaintiffs were represented by John C. Miller, Jr. of Miller Law, Inc.
Mediation
A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party (the mediator), who helps them agree on a settlement.
Medical Payments
An automobile insurance policy option which pays all, or part, of medical costs due to personal injuries sustained in an accident.
Medical Records
A physician, chiropractor, or other health care practitioner's historical and current files containing medical records and bills of a patient regarding examination, care and treatment.
Medical Release
A formal document allowing another person to obtain and review private medical records. You must sign a medical release in order to allow your attorney to obtain your medical records for review and analysis.
Mitigation
A legal principle which requires a party that has been injured or damaged to avoid future injury or damage to themselves or their property. In other words, a person who has sustained property damage or personal injury by the wrongful act of another is bound to exercise reasonable care and diligence to avoid loss and to minimize damages, and may not recover for losses which could have been prevented by reasonable efforts or by expenditures that might reasonably have been made. Accordingly, a plaintiff who fails to mitigate damages may have their damages reduced at the time of settlement or trial to the extent those damages or personal injuries could have been mitigated or avoided.
Mold
A living organism which can be associated with illness in humans and animals, often referred to as toxic mold. Mold requires water, a nutrient source and mold spores. Any mold is potentially harmful to human being because it can serve as an allergen and cause Type I or Type III allergic responses. In addition, thousands of molds contain mycotoxins or poisons which are also toxic to humans and animals.
Mold Remediation
The process of cleaning or removing toxic mold from a building structure and/or personal property contained within a structure.
Mold Spore
Mold spores are the reproductive systems in molds. Similar to a dandelion releasing seeds, actively growing molds can release small spores into the air for purposes of procreation. These spores can be inhaled by occupants of buildings causing personal injuries. They are small and invisible to the naked eye. In addition, these spores can damage or destroy personal property and the structure of buildings.
Motion
A written application made to a court or judge which requests a ruling or order in favor of the party filing the motion.
Named Peril
This phrase is typically associated with insurance claims. For example, in a typical homeowners insurance policy, personal property is covered on a named peril basis. This usually means that only personal property which is specifically listed and delineated in the insurance policy is covered for a loss. Named peril coverage should be contrasted with coverage for the structure of the building in which the personal property is contained. Damage to the structure of the property under a typical homeowners claim is covered on an "All Risk" or "All Perils" basis.
Negligence
A cause of action typically alleged by plaintiffs in a civil lawsuit when injured or damaged by a defendant. It alleges a failure to use care which a reasonable and prudent person would use under similar circumstances. One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed the same knowledge, they would have foreseen or anticipated that someone might have been injured or damaged as a result of their action or inaction. If the answer to that question is yes and the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.
Non-Economic Damages
A type of damage which may be recoverable in a lawsuit. These damages consist of subjective non-monetary losses such as pain and suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, humiliation, and injury to reputation.
Nuisance
A cause of action that a plaintiff can assert in a civil complaint. In essence, it is a claim which arises from the interference with the use and enjoyment of property.
Objection
The process by which one party takes exception to some statement, piece of evidence and/or procedure. An objection is either sustained (allowed) or overruled (disallowed) by the judge.
Occupational Rehabilitation Expert
An expert witness who can evaluate a plaintiff and their injury and provide an opinion regarding their ability to return to work.
Order
The ruling or direction of a court or judge made in writing.
Pain and Suffering
Commonly known as general damages. These damages may be recoverable by an injured plaintiff and include reasonable compensation for any pain, discomfort, fears, anxiety, and other mental and emotional distress and anguish suffered by the plaintiff and caused by the personal injury sustained and certain to be experienced in the future as a result of the injury.
Paralegal
A person with legal skills who works under the supervision of a lawyer. Your attorney may employ a paralegal or legal assistant to perform basic legal tasks and/or facilitate conversation between you and your attorney.
Party
Either the plaintiff or defendant in a lawsuit.
Penicillium
A type of toxic mold which is typically associated with water damaged building materials and structures. Penicillium contains toxins which are extremely harmful to human beings and animals.
Personal Injury
Injuries sustained or incurred by a plaintiff in an accident or incident. Personal injuries can include lacerations, broken bones, or soft tissue damage.
Personal Injury Damages
The type of damages a person who sustains personal injury may be entitled to. Personal injury damages are measured as the reasonable value of medical care services and supplied required and provided in the treatment of the plaintiff as a result of personal injuries and the value of such services reasonably certain to be required in the future. In addition, personal injury damages can include the reasonable value of working time lost due to date and any potential future loss of earnings or earning capacity. Finally, personal injury damages may include pain and suffering or "general damages."
Personal Property
Personal belongings. For example, the contents of one's home, including without limitation furniture, electronics, photographs, clothing, etc.
Personal Property Damage
Harm or damage to personal belongings which require repair and/or replacement.
Physician-Client Privilege
Most conversations between physician and patient are privileged and may not be disclosed to others without a release or permission from the patient.
Plaintiff
A person who is injured and/or damaged by another and is the party who initiates a lawsuit by filing a civil complaint with the court.
Pleadings
The written statements of fact and law filed with the court by the parties to a lawsuit. The civil complaint, answer and various motions all constitute pleadings.
Preponderance of the Evidence
The level of proof required of plaintiffs to prevail in most civil cases. The judge or jury must be persuaded that it is more probable than not that defendant is liable and the plaintiff sustained personal injury, loss and/or damage. "Preponderance of the evidence" means evidence that has more convincing force than that opposed to it. In some circumstances it is described as the plaintiff having to prove it is more likely than not that defendant was responsible for their injuries, damages, or loss.
Premises Liability
A phrase used to denote the potential liability of a defendant who owns real property for injuries sustained by others on that real property as a result of dangerous conditions. A "slip and fall" accident would be an example of premises liability.
Property Damage
Damage and/or destruction of the structure of a building (structural property damage) or the personal property contained therein.
Punitive Damages
Monetary award given to a plaintiff to punish the defendant or wrongdoer and to deter or prevent future wrongful conduct.
Request for Admissions
A discovery device by which a party to a lawsuit is permitted to request the other party to admit or deny certain facts and admit or deny the authenticity and identity of certain documents.
Request for Production of Documents
A discovery mechanism by which a party to a lawsuit is permitted to request the other party and witnesses to produce documents regarding an incident or accident.
Rescission
A term used to denote an individual's attempt to cancel or nullify a contract previously entered. A contract may be rescinded if the contract was induced by fraud or if there is a failure of consideration.
Respondeat Superior
A legal principle by which an employer can be held responsible for the acts and/or omissions of their employees during the course and scope of their employment.
Retainer
A retainer is an amount of money paid in advance by the client to an attorney for legal representation. Typically, if the client is a new client, the lawyer will require the payment by the client of an up front retainer. This retainer is used as security for the lawyer to insure that time which is billed to a file is collectible by the attorney. If the matter resolves or settles prior to all of the funds in the retainer being used in the representation of the client, the balance of the retainer amount is returned to the client.
Settlement (Settle)
When parties to a lawsuit resolve their civil case out of court without the necessity of trial.
Settlement Agreement
In a civil lawsuit, the document that spells out the specific details of an out-of-court settlement.
Settlement Demand
A letter or semi-formal document from one party to another in a lawsuit suggesting a settlement during the course of a lawsuit.
Soft Tissue Injury
Injury to the ligaments, tendons and fibers of the body that connect the skeletal bones.
Soft tissue injury, most commonly called "whiplash," "separated shoulder," "strained muscle," "torn cartilage (meniscus)," etc., usually occurs as a result of a motor vehicle accident, traumatic fall or sports related injury.
Soft tissue injuries vary in severity and can usually take from 3 to 8 weeks to heal; however, depending on health, age, etc., may need to be surgically repaired and may even result in permanent damage.
Spinal Cord Injury
Injury of the nerves contained within the spinal canal often associated with trauma to the spinal column (spine).
Automobile accidents and traumatic falls are the cause of spinal cord injury. Diving and swimming accidents are also a leading factor.
The spinal cord is the body's message center. It is a collection of nerve fibers running from the base of the neck to the waist that relay the brain's instructions to the other parts of the body. These nerves are surrounded by the spinal column (spine), a combination of bone and tissue that covers and protects the spinal cord.
Damage to the spinal cord usually occurs when the spine is traumatized. This may affect the nerve center's ability to send and receive messages from the brain and body; and when these "lines of communication" are broken, several things can happen including loss of movement, sight, smell, pain sensation, etc.
There are two categories of spinal cord injury.
Complete: Nerve damage obstructing all signals between the brain and body.
Incomplete: Nerve damage obstructing some of the signals between the brain and body.
If the spinal cord is just "bruised," there is the possibility of regaining normal function but, all too often, the nerves are severed. There is currently no effective medical procedure for reattaching the nerves and many victims of spinal cord injury become either paraplegic or quadriplegic.
Stachybotrys
A type of toxic mold which is typically associated with water damage to building materials inside of residential structures. Stachybotrys requires an extremely high water content to develop. It typically does not thrive on painted surfaces and typically grows in dark, damp locations, most notably wall cavities.
Statute of Limitations
A legal rule which limits the right of a plaintiff to file a lawsuit unless it is done within a specified time period after the occurrence which gives rise to the right to sue. Each cause of action in a civil complaint may have a different statute of limitations. If a plaintiff fails to file a civil complaint within the time of the statute of limitations, a plaintiff will forever be barred and prevented from seeking compensation for personal injury, loss or damage. Contact an attorney as soon as you are able following an injury, damage or loss, so that your right to recover will not be lost.
Statutory Violations
In a bad faith action against an insurance company, certain California statutes may give rise to liability. Included are the following two statutes:
California Insurance Code section 790.03
Section 790.03 Prohibited Acts
The following are hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance.
[Unfair claims settlement practices.] Knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices:
Misrepresenting to claimants pertinent facts or insurance policy provisions relating to any coverages at issue.
Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.
Failing to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.
Failing to affirm or deny coverage of claims within a reasonable time after proof of loss requirements have been completed and submitted by the insured.
Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.
Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by the insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered.
Delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either, to submit a preliminary claim report, and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information.
Failing to settle claims promptly, where liability has become apparent, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
Failing to provide promptly a reasonable explanation of the basis relied on in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement.
California Code of Regulations sections 2695.1 C 2695.7
Section 2695.1. Preamble
Section 790.03(h) of the California Insurance Code enumerates sixteen claims settlement practices that, when either knowingly committed on a single occasion, or performed with such frequency as to indicate a general business practice, are considered to be unfair claims settlement practices and are, thus, prohibited by this section of the California Insurance Code. The Insurance Commissioner has promulgated these regulations in order to accomplish the following objectives:
To delineate certain minimum standards for the settlement of claims which when violated knowingly on a single occasion or performed with such frequency as to indicate a general business practice shall constitute an unfair claims settlement practice within the meaning of Insurance Code Section 790.03(h);
To promote the good faith, prompt, efficient and equitable settlement of claims on a cost effective basis;
Policy provisions relating to the investigation, processing and settlement of claims shall be consistent with or more favorable to the insured than the provisions of these regulations.
Section 2695.3. File and Record Documentation
Every licensee's claim files shall be subject to examination by the Commissioner or by his or her duly appointed designees. These files shall contain all documents, notes and work papers (including copies of all correspondence) which reasonably pertain to each claim in such detail that pertinent events and the dates of the events can be reconstructed and the licensee's actions pertaining to the claim can be determined;
To assist in such examination all insurers shall:
maintain claim data that are accessible, legible and retrievable for examination so that an insurer shall be able to provide the claim number, line of coverage, date of loss and date of payment of the claim, date of acceptance, denial or date closed without payment. This data must be available for all open and closed files for the current year and the four preceding years;
maintain hard copy files or maintain claim files that are accessible, legible and capable of duplication to hard copy; files shall be maintained for the current year and the preceding four years.
Section 2695.4. Representation of Policy Provisions and Benefits.
No insurer shall misrepresent, conceal or fail to disclose to a first party claimant or beneficiary all benefits, coverages, time limits and other provisions of any insurance policy or bond issued by the insurer, and any pertinent statutes and regulations, that may apply to the claim presented or that the insurer relies upon to process the claim.
When additional benefits might reasonably be payable under an insured's policy, the insurer shall immediately communicate this fact to the insured and cooperate with and assist the insured in determining the extent of the insurer's additional liability.
No insurer shall deny a claim on the basis of the claimant's failure to exhibit property, unless there is documentation in the file (1) of demand by the insurer, and unfounded refusal by the claimant, to exhibit property, or (2) of the breach of any policy provision providing for the exhibition of property.
Except where a time limit is specified in the policy, no insurer shall require a first party claimant under a policy to give notification of a claim or proof of claim within a specified time.
Section 2695.5. Duties Upon Receipt of Communication
Upon receiving any written or oral inquiry from the Department of Insurance concerning a claim, every licensee shall immediately, but in no event more than twenty-one (21) calendar days of receipt of that inquiry, furnish the Department of Insurance with a complete written response based on the facts as then known by the licensee. . . .
Upon receiving notice of claim, every insurer shall immediately, but in no event more than fifteen (15) calendar days later, do the following unless the notice of claim received is a notice of legal action:
acknowledge receipt of such notice to the claimant unless payment is made within that period of time. . . .
provide to the claimant necessary forms, instructions, and reasonable assistance, including but not limited to, specifying the information the claimant must provide for proof of claim;
begin any necessary investigation of the claim.
An insurer may not require that the notice of claim under a policy be provided in writing unless such requirement is specified in the insurance policy or an endorsement thereto.
Section 2695.6. Training and Certification
Every insurer shall adopt and communicate to all its claims agents written standards for the prompt investigation and processing of claims, and shall do so within ninety (90) days after the effective date of these regulations or any revisions thereto.
All licensees shall provide thorough and adequate training regarding the regulations to all their claims agents. Licensees shall certify that their claims agents have been trained regarding these regulations and any revisions thereto. .
A licensee shall demonstrate compliance with this subsection by the following methods:
where the licensee is an entity, the annual written certification shall be executed, under penalty of perjury, by a principal of the entity as follows:
that the licensee's claims adjusting manual contains a copy of these regulations and all amendments thereto; and,
that clear written instructions regarding the procedures to be followed to effect proper compliance with this subchapter were provided to all its claims agents;
the annual certification required by this subsection shall be completed on or before September 1 of each calendar year.
Section 2695.7. Standard for Prompt, Fair, and Equitable Settlements
No insurer shall discriminate in its claims settlement practices based upon the claimant's age, race, gender, income, religion, language, sexual orientation, ancestry, national origin, or physical disability, or upon the territory of the property or person insured.
Upon receiving proof of claim, every insurer . . . shall immediately, but in no event more than forty (40) calendar days later, accept or deny the claim, in whole or in part. The amounts accepted or denied shall be clearly documented in the claim file unless the claim has been denied in its entirety.
Where an insurer denies or rejects a first party claim or claim under a surety bond, in whole or in part, it shall do so in writing and shall provide to the claimant a statement listing all bases for such rejection or denial and the factual and legal bases for each reason given for such rejection or denial which is then within the insurer's knowledge. Where an insurer's denial of a first party claim or claim under a surety bond, in whole or in part, is based on a specific statute or specific bond or policy provision, condition or exclusion, the written denial shall include reference thereto and provide an explanation of the application of the statute, provision, condition or exclusion to the claim. Every insurer that denies or rejects a third party claim in whole or in part, or disputes liability or damages shall do so in writing.
Every insurer shall conduct and diligently pursue a thorough, fair and objective investigation and shall not persist in seeking information not reasonably required for or material to the resolution of a claim dispute.
No insurer shall delay or deny settlement of a first party claim or claim under a surety bond on the basis that responsibility for payment should be assumed by others, except as may otherwise be provided by policy provisions, statutes or regulations, including those pertaining to coordination of benefits.
Strict Product Liability
The legal responsibility of manufacturers and sellers of products to buyers, users, and bystanders for damages or personal injuries suffered because of defects in such products. A product can be defective in the manner in which it was manufactured or designed. A product can also be defective if it does not contain an adequate warning regarding the hazards of its use.
Structural Property Damage
Harm or damage to the dwelling or physical structure of real property such as roof, walls, and floors.
Subpoena
A command for a witness to appear at a certain time and place to give testimony upon a certain matter.
Summons
An instrument used to begin a civil action or special proceeding. It is issued at the time the civil complaint is filed with the court and is a means of the court acquiring jurisdiction over a party. Your attorney will prepare the summons to accompany the civil complaint when your lawsuit is filed with the court.
Third Party
A term typically used in the insurance context to denote an insurance claim being made by a third party who was injured or damaged against another person or entity's insurance policy.
Toxic Mold
Molds which are harmful to humans and may cause one of three responses: (1) a toxic response; (2) a Type I allergic response or; (3) a Type III allergic response. Toxic molds typically associated with water damaged building materials in residential and commercial structures include without limitation Stachybotrys, Penicillium, Aspergillus, and Chaetomium. Symptoms which one may experience when exposed to toxic mold include without limitation repeated colds; fever; pneumonia; pneumonitis; sore throat; sinusitis; sinus infections; nasal congestion; nasal pain; nasal discharge; cough; wheezing; bronchitis; asthma; shortness of breath; difficulty breathing; chest pain; nausea; vomiting; fatigue; malaise; depression; abdominal pain; diarrhea; mucus membrane irritation; allergic alveolitis; allergies; hypersensitivity pneumonitis; bloody noses; dermatitis; skin rashes; eye infections; itchy, red or watery eyes; light sensitivity; blurred vision; hair loss; joint pains; muscle aches; liver disorders or disease; infections; lung damage; upper respiratory infections; urinary tract infections; conjunctivitis; flu-like symptoms; headaches; immune system dysfunction or suppression; irritability; vertigo; cognitive and neurological problems including confusion, inability to concentrate and loss of memory.
Toxic Response
The type of response which may occur when humans and animals are exposed to toxic substances including toxic mold. The symptoms which one may experience in a toxic response may include without limitation gastrointestinal symptoms, stomach upset, flu-like symptoms, cognitive difficulties, diarrhea, inability to think and concentrate, and fatigue.
Traffic Collision Report
A written, detailed description of the events surrounding an automobile accident. Your attorney will obtain a copy of the traffic collision report following an incident to review the facts of your case.
Traumatic Brain Injury
Serious injury to the head, often resulting in severe and permanent damage to the brain.
Every year over 1,000,000 people in the United States sustain some form of brain injury caused by motor vehicle accidents, falls, diving and swimming accidents, amusement park rides, blunt force trauma and criminal acts. Due to the subtle nature of brain injuries, they often go undiagnosed and therefore untreated, especially in emergency rooms.
Under certain circumstances, the damage may eventually be reversed but unfortunately, traumatic brain injuries often result in some form of permanent impairment such as:
Paralysis: Paraplegia or quadriplegia
Loss of voluntary or involuntary motor functions
Loss of reasoning and thinking abilities
Memory loss
Sensory loss such as sight, speech or hearing
Skull fractures and skull penetration are the obvious causes of traumatic brain injury but brain damage can also result from a "closed head injury." If the brain is bruised due to physical force, blood vessels in the brain can break and cause bleeding around the brain. The brain can also be damaged if it swells and presses against the bones of the skull, or if it is deprived of oxygen.
Treating Physician
The doctor or other medical professional who cared for a patient during a specific time.
Trial
The final court proceeding in a civil case in which parties to a lawsuit present evidence through witnesses and expert witnesses to a judge or a jury. The judge or jury then makes a decision based on the facts and the evidence presented. If the plaintiff prevails at trial, they are awarded a monetary judgment for damages against defendant.
Type I Allergic Response
The type of allergic response which one who is exposed to toxic mold can experience. The symptoms of a Type I allergic response may include red, itchy, watery eyes; runny nose; scratchy throat, cold and flu-like symptoms and difficulty breathing. One can determine whether or not they are allergic to various substances including toxic mold through allergy skin and blood testing. These tests seek to determine the presence of IgE antibodies to various allergic causing antigens including toxic mold.
Type III Allergic Response
The type of allergic response which one who is exposed to toxic mold can experience. The symptoms of a Type III allergic response may include severe difficulty breathing; cold and flu-like symptoms; joint pain; fatigue; skin rashes; and headache. One can determine whether or not they are having a Type III allergic response to various substances including toxic mold through blood testing. These tests seek to determine the presence of IgG antibodies to various allergic causing antigens including toxic mold.
Ulocladium
A type of toxic mold which is typically associated with water damaged building materials and structures. Ulocladium contains toxins which are extremely harmful to human beings and animals.
Uninsured Motorist
A driver who has not obtained liability coverage in violation of California=s financial responsibility laws. Under Proposition 213, an uninsured motorist may not recover damages for pain and suffering following an automobile collision except under special circumstances.
Unlawful Detainer
A lawsuit filed by an owner of real property against a lessee and/or tenant of that property for failure to pay rent. In essence, it is an eviction action.
Vicarious Liability
When one person is liable for the negligent actions of another person, even though that first person was not directly responsible for the personal injury or damage, as when a parent is held liable for the harmful acts of a child, or when an employer is held liable for the acts of a worker (known as respondeat superior).
Vocational Rehabilitation
Training to return to work following personal injury. Following an accident, an injured plaintiff may require vocational rehabilitation to return to work.
Wrongful Death
When a person is killed as the result of the negligence or other wrongful conduct of another. The family of a person who is wrongfully killed may recover damages.
58 Judicial Counties
The number of judicial counties in the State of California. In other words, each of the 58 counties within the State of California has a separate court where a lawsuit may be filed.
Miller Law, Inc. represents clients throughout California's 58 judicial counties, and throughout Nevada. To schedule a consultation on any legal matter, contact us.
