In Arizona, and elsewhere, the statute of limitations imposes a deadline on the injured plaintiff’s various claims.  When the applicable statute of limitations deadline passes, then the plaintiff’s claims expire, at which point the plaintiff is no longer entitled to sue and recover for damages in an Arizona court of law.

For example, suppose that you are injured in a motor vehicle collision.  Given the seriousness of your sustained injuries, however, you spend most of your post-accident time and energy attempting to physically rehabilitate and reintegrate into your old lifestyle/career.  As a result, you wait too long to file your claims and the statute of limitations deadline passes.  You will no longer be entitled to compensation.

Importantly, the Arizona statute of limitations for injury claims — which runs for two years from the date of injury — allows for the suspension/extension of the deadline in certain circumstances.  This is known as “tolling.”  If the statute of limitations deadline has been tolled, then you may still have enough time to pursue litigation.

Tolling on the Basis of the Discovery Rule

Equitable tolling takes into consideration the possibility of a delayed discovery of one’s various injuries in the wake of an accident.  The application of the discovery rule is actually fairly straightforward, though many prospective plaintiffs are unaware of how it works.  Essentially, the statute of limitations period does not begin to run until the date that the plaintiff’s injuries are actually discovered, or until the date that the plaintiff’s injuries should have reasonably been discovered.

Consider the following example.

Suppose that you are involved in a car accident.  At the time of the accident, however, you don’t display any symptoms of injury.  A checkup with your physician (and some diagnostic tests) does not reveal injuries, either.  After two years, however, you begin to develop pain that is caused by the car accident (perhaps minor hairline fractures).  Despite the fact that the standard statute of limitations deadline has passed, you could effectively argue that the hairline fracture was not reasonably discoverable until a later date, and as such, the statute of limitations period did not begin to run until that later date.  You would therefore still have time to file your claims and potentially recover damages pursuant to litigation.

Automatic Tolling of the Limitations Period

In some cases, the statute of limitations period is automatically tolled when certain issues are present.  These include, but are not necessarily limited, to issues such as the plaintiff’s mental competence at the time of the accident, and the plaintiff’s age at the time of the accident.  For example, if the plaintiff is a minor at the time of an injury-causing car accident, then their statute of limitations period will be tolled until they reach the age of majority (i.e., age 18), at which point it will begin to run as normal.

Contact a Phoenix Car Accident Lawyer Today

If you have suffered significant injuries — whether in a car accident or otherwise — due to actions of another person or entity, then Arizona law may give you the right to sue for compensation.  Importantly, however, a statute of limitations deadline applies to all Arizona injury claims.  Waiting too long to file your claims can result in the expiration of such claims.  All is not lost, however.  Depending on the circumstances, your attorney may be able to convince the court that your limitations period should be “tolled” or “suspended,” thus extending your deadline and giving you a revived opportunity to pursue litigation.

Schedule a free consultation with a skilled Phoenix car accident lawyer today — call (602) 535-1900.  During your initial consultation, we will evaluate your injury claims and help you develop a roadmap to full and adequate damage recovery.

If you have been injured in an accident due to the fault of another, you may be entitled to sue and recover damages under Arizona law.  Plaintiffs often forego pursuing litigation, primarily because they are uncertain about whether it is worthwhile to go through the effort for a small recovery.

Until you consult a qualified Phoenix accident attorney about the case, you will not have an accurate appraisal of the damages.  We therefore encourage you to contact Hirsch & Lyon for a case evaluation so you can learn more.

For now, let’s explore some of damages typical of a personal injury dispute.

Identifying Losses and Gathering Evidence

In the context of personal injury, your losses are likely to vary significantly on a case-by-case basis.  For example, if you suffer injuries in a car accident that are not “catastrophic” and you are able to return to your career after a few months without any significant impairments in your ability to perform your job responsibilities, then you may have a significant damages claim for wage loss accounting for those few months of being unable to work, but not for the loss of earning capacity, as your earning capacity was not, in fact, diminished.

Depending on the circumstances surrounding the accident and subsequent injuries, your losses may include the following:

Medical Expenses

In the wake of an accident, injured plaintiffs may recover for all their health-related expenses, including doctor visits, prescription drugs, diagnostic exams, counselor appointments, chiropractic exams, physical therapy, occupational therapy, and alternative medical treatment.  The defendant may attempt to argue that some of the treatment is not “reasonably necessary” under the circumstances.  You can counter this argument with supportive testimony from your treating physicians and other medical experts.

Lost Wages

Our skilled Phoenix accident attorneys know that injured plaintiffs are entitled to recover damages for their lost wages/income.  This includes all missed work time due to their accident, missed job opportunities, missed interviews, missed client meetings, and all other lost income (i.e., lost sales for a commission-based earner).

Loss of Earning Capacity

If you are injured severely enough that your future earning capacity is limited in a significant manner (i.e., you are blinded, and are therefore unable to continue working in as a lab technician), then you are entitled to damages for the lost earning capacity associated with that impairment.  You will have to compare your new earning capacity with what you would have earned in the future — this will require a lifetime analysis of future earnings.  Loss of earning capacity is more difficult to prove than lost wages, but you can effectively do so by introducing supportive vocational expert testimony.

Property Damage

As a personal injury plaintiff, you are entitled to recover for any damaged property and incidental expenses associated with the accident, including the cost of repairs or replacement (for your vehicle), rental car expenses, travel expenses, household assistance, and childcare expenses.  For example, if your car is totaled in an accident, then you may need to pay for a rental car.  That rental car is an incidental expense that could be claimed in the ensuing litigation.  Speak to a Phoenix accident attorney to discuss the specifics of your situation.

Pain and Suffering

Pain and suffering damages comprehensively accounts for the suffering that a plaintiff experiences in the wake of an accident.  For example, if you fracture your pelvis in a car accident, then you can recover for the subjective pain that you experienced due to that injury.  Intense pain leads to greater damages.

Emotional Distress

Emotional distress can best be described as the psychological pain sustained in relation to one’s injuries.  For example, if you have received burn injuries on your face and hands, then you may experience significant emotional distress due to the social stigma associated with your aesthetic losses.

Proving emotional distress damages will require extensive psychological diagnostic records and expert testimony supporting the fact that you have not only experienced such distress, but that it is as severe as you are claiming it to be.

You’ll have to do more than merely assert damages in order to successfully recover.  In personal injury litigation, documentary evidence (i.e., medical records, work payment records, contracts, etc.) and testimonial evidence (i.e., expert testimony regarding your pain and suffering, loss of earning capacity, etc.) are both extraordinarily valuable in supporting your claim for damages.  If you are claiming medical expenses, for example, you will have to introduce evidence of the treatment that you have received and how much the procedure costs.

Are Punitive Damages Available? Our Phoenix Accident Attorneys Will Review the Case and Advise

An award of punitive damages can significantly boost your damages, as they act as a multiplying factor on the compensatory damages total — for example, if you recover $100,000 in compensatory damages (i.e., medical expenses, pain and suffering, wage loss, etc.), then the court may award you punitive damages of up to seven times that amount, for a total of $800,000.

Unfortunately, punitive damages are not often available.  The plaintiff may only qualify for punitive damages if they can prove that the defendant acted willfully, maliciously, and/or with reckless disregard for the safety of others.  Further, even if the plaintiff “qualifies” for punitive damages, the court may exercise its discretion in awarding them. Our Phoenix accident attorney can further explain this during the initial consultation.

The fundamental reasoning behind an award of punitive damages is quite different than what many plaintiffs initially expect.  Simply put, punitive damages are not intended to compensate you for your various losses but are meant, instead, to punish and otherwise discourage the defendant (and other similarly situated parties in society) from engaging in the sort of willful and malicious behavior that the case is centered around.

If you could potentially access punitive damages, your recovery could be striking.  Many multimillion-dollar personal injury lawsuits are actually reliant on punitive damages to reach those significant dollar amounts.

How “Certainty of Success” Impacts Damage Recovery

Most disputes are resolved through settlement.  Each party compromises, agreeing to an amount that is less than the maximum claimed damages in an effort to avoid the cost and uncertainty of trial litigation.  As such, understanding what you are likely to recover through settlement is fundamental to understanding the true damages potential of your claims.

In a settlement, the amount that the defendant will agree to offer depends largely on whether your claims are likely to succeed (should the case proceed to trial) and whether the claimed damages are likely to be awarded by the jury.

For example, if the defendant concedes that they are at fault and caused your injuries, then you have a 100 percent chance of “winning” the case at trial.  Suppose, however, that the evidence for your claimed $200,000 damages is rather scant, and in fact, there is a 50 percent that the jury will award you $100,000 in damages instead.  Given these risks, a reasonable settlement amount might hover around $150,000.

Contact Hirsch & Lyon to Setup a Free and Confidential Consultation With a Phoenix Accident Attorney Today

If you’ve sustained injuries in a motor vehicle accident due to the fault of another party, then Arizona law may give you a right of action for damages.  The pursuit of litigation may seem intimidating, but it’s important to understand that the damages you’re owed may be recoverable with the aid of a skilled legal advocate.

Here at Hirsch & Lyon, our team of attorneys has decades of experience working on behalf of those who have been injured in various personal injury scenarios — primarily motor vehicle accidents (car, truck, motorcycle, and pedestrian).  This focus affords us substantial insight into the unique issues likely to be encountered over the course of litigation in such disputes and helps us to maximize our client’s damages.

Ready to speak to one of our experienced Phoenix accident attorneys about your claims?  Send us a message online to arrange for an initial consultation today.  Consultation is free and confidential.

If you’ve been involved in an Arizona car accident, then you may not only be entitled to bring an action against the defendant for damages related to your injuries, but you may also be entitled to claim property loss as a component of your overall damages.  In fact, many plaintiffs are unaware that their injury claim may include a purely economic, property loss component, and are surprised to learn that those damages can be significant, depending on the overall circumstances.

The Basics of Property Loss in the Context of Car Accidents

In any injury lawsuit, there are both economic and non-economic damages.  Economic damages are objectively measurable and related to specific financial losses.  Non-economic damages, by contrast, are subjective in nature and are somewhat more speculative than economic damages.  Property loss claims fall within the category of economic damages, and are quite commonly encountered in the car accident context.

Suppose, for example, that you suffer serious injuries in a car accident — more specifically, you have suffered debilitating back and shoulder injuries, for which you have had to see many medical specialists and have had to undergo surgery.  Naturally, you would be entitled to assert damages for pain and suffering, medical expenses, emotional distress, wage loss, and various other losses.

You would also be entitled to fold your property loss into your overall damage claim.  If your car was totaled in the accident, then you might be entitled to recover the full value of the vehicle at the time of the accident, as well as the cost of a rental car for the interim period.  Alternatively, if you have had to get significant repair work done, you might be entitled to secure damages for the repair costs.

What many plaintiffs don’t realize, however, is that — even if they have paid for a perfect repair of the car — there is an additional damage claim known as “diminution in value” for which they may recover.

What is Diminution in Value?

The “diminution in value” claim is quite unique in that it accounts for a psychological trend among consumers that causes vehicles with an accident history — even if they are in absolutely perfect condition — to have a reduced resale value.  Thus, any fairly contemplated award of damages must account for the eventual, diminished value of the vehicle.

How is Diminished Value Calculated?

The diminished value of your vehicle will be determined on the basis of a variety of different factors, including, but not necessarily limited, to:

  • Age of the vehicle in question
  • Model of the vehicle
  • Brand
  • Mileage
  • Condition before and after the accident
  • Extent of damage vehicle suffered during accident
  • Quality of repairs
  • Objective value of vehicle before the accident
  • Difficulty of reselling activities after the accident
  • Presence of interested buyers

These factors are all dispositive, but you’ll have to introduce expert testimony that puts hard numerical estimates on the pre-accident and post-accident value of your vehicle.  Your attorney will have specific experts on-hand who can be trusted to provide an accurate evaluation.

Contact a Qualified Phoenix Accident Attorney for Guidance on Your Claims

In Arizona, and all other states, injured plaintiffs may assert damages for the economic losses they sustain to their vehicle.  These claims are not necessarily simple, however.  You’ll want to work with a qualified attorney who is intimately familiar with the process of securing damages for both economic and non-economic injuries.

Here at Hirsch & Lyon, our team of attorneys boast decades of experience providing skilled legal advocacy to injured plaintiffs in Arizona.  Unlike many other injury firms, we are focused on personal injury cases and as such, we are particularly well-suited to litigate these disputes to the fullest extent.  We also offer discounted contingency fees that ensure that our clients can keep more of what they receive in damages.

Interested in learning more?  Call 602-535-1900 or submit a case evaluation form today to schedule a free consultation with an experienced Phoenix accident attorney here at Hirsch & Lyon.  During the initial consultation, we will assess your claims and determine the best way to move forward to secure maximum compensation.

In the majority of motor vehicle accident lawsuits, injury victims initially focus their attention on obvious defendants — other negligent drivers who contributed to the accident, or perhaps the government agency that failed to maintain the roadway in a reasonably safe condition.  In reality, however, the vehicle manufacturer may be a potentially liable defendant worth bringing an action against, depending on the circumstances.

All product manufacturers — in Arizona and elsewhere — have a duty to ensure that their products are not defective and are reasonably safe for their foreseeable uses.  Failure to adhere to this duty could expose the manufacturer to significant liability.  This could prove especially useful in cases where the other defendants (i.e., the drivers) are uninsured or underinsured and therefore not equipped to cover your damages in full.

There are a number of different product liability claims — defective manufacture, defective design, failure to warn, and breach of warranty — but for now, let’s focus on defective design in the motor vehicle accident context.

Defective Design Liability

Arizona implements strict product liability, which is a boon for injured plaintiffs involved in litigation with a vehicle manufacturer.  Stated simply, the plaintiff need only prove that the vehicle is defective in some way, and that the defect substantially contributed to the injuries they suffered in the accident.  It is not necessary for the plaintiff to prove the manufacturer’s negligence.

Of course, this does not mean that litigation is easy.  Arguably, the implementation of strict liability simply puts the injury victims and manufacturers on a more equal footing, given the substantial advantages that manufacturers enjoy from a resources perspective.

In any case, if you’re looking to bring a claim against the vehicle manufacturer for defective design in Arizona, you’ll have to prove the following elements:

  1. Some element of the vehicle was defective; and
  2. The defective condition proximately caused you injuries.

Success will ultimately turn on your ability to prove that the product was actually defective in terms of its design.  This can be a significant challenge, particularly if the defendant is uncooperative or hostile and is willing to throw resources at the problem in an effort to bully you into submission.

Arizona courts will consider a product defective in terms of its design if the product poses an unreasonable danger to foreseeable users.  There are two tests for determining whether a product poses an “unreasonable” danger to its users: the risk-benefit test and the consumer expectation test.

Risk-Benefit Test

The risk-benefit test is fairly straightforward on the surface.  In Arizona, the courts will deem a product defective if the harmful consequences of its design outweigh the benefits of its design.  Courts will weigh a number of different factors, including the existence of a reasonable alternative design, the actual danger of the design, and many others.

Consumer Expectation Test

The consumer expectation test, by contrast, is about “foreseeability.”  If a product is not as safe to use in a foreseeable manner (i.e., driving a car on a highway) as the ordinary consumer would expect, then it will be deemed defective.

Product Misuse as a Defense

Manufacturers have a number of defenses they can assert to circumvent liability, including the product misuse defense.  Naturally, manufacturers are not absolute guarantors of safety for every conceivable use of their product — for example, a vacuum cleaner manufacturer cannot be held liable if a consumer attempts to use the vacuum to clean up toxic chemical waste and complains that it leaked out and caused them to suffer injuries.

Similarly, there are plenty of ways in which a driver may misuse a vehicle in a non-foreseeable manner.  For example, if you attach a pulley to your truck tires, and run the engine to turn the wheels and lift an object out of a pit, then the manufacturer cannot be held liable for injuries stemming from some product failure that subsequently occurs (i.e., the breaks fail and the truck collides with you and your friends).

Speak to an Experienced Phoenix Accident Attorney for Legal Assistance

Though product defect claims in Arizona are subject to strict liability principles, they are among the most difficult claims to “win,” as manufacturers have substantial resources, and tend to be somewhat aggressive in fighting lawsuits so as to discourage others from bringing similar lawsuits.

Here at Hirsch & Lyon, our attorneys are more than capable of taking on manufacturers and securing maximum compensation for our injured clients.  We have decades of experience representing the injured in a range of motor vehicle accident lawsuits, and as such, we understand the contours of product defect litigation and the strategies that manufacturers employ to avoid liability.

Unlike many other firms, we focus solely on personal injury cases.  This focus ensures that we are well-equipped to handle all the complex (and unexpected!) issues that arise in such litigation.  Our results speak volumes about our approach — we have secured over $100 million in damages (verdicts and settlements) on behalf of our injured clients.

Call 602-535-1900 to connect to an experienced Phoenix accident attorney today for a free and confidential consultation.

In Arizona, many employees are covered by workers’ compensation coverage that pays out for wage loss and medical expenses in the event that an employee suffers an injury in the workplace or while otherwise performing their duties.

Workers’ compensation is an exchange that is often sensible for both parties.  Employers agree to provide no-fault coverage, which gives employees the right to obtain workers’ compensation benefits even if there was no negligence or wrongful conduct involved, while employees agree to give up their right to sue the employer (and thereby obtain damages through standard litigation).

Many employees understand the basics of workers’ compensation, but aren’t quite sure what to make of “borderline” situations where they are also entitled to sue a third-party that is liable for their injuries.

Suppose, for example, that you are injured in a car accident while using the company vehicle to deliver products to a warehouse.  Though the accident was not the fault of your employer, you would be entitled to submit a claim for workers’ compensation to obtain benefits that account for your wage loss and medical expenses.

Now, even though you are not entitled to sue your employer, you might be entitled to sue a third-party — perhaps the negligent driver that collided with you — to secure a more extensive range of damages.

Oftentimes, injured employees are incentivized to bring an action against a liable third-party as workers’ compensation benefits can be quite limited — workers’ compensation benefits may only cover medical expenses and wage loss.  While significant, these may not be sufficient to account for all your damages.

By suing a third-party, you gain access to a much broader range of damages: pain and suffering, emotional distress, property loss, and more.

Application of the Collateral Source Rule

In Arizona, the collateral source rule ensures that you can not only secure workers’ compensation benefits, but also make a claim for wage loss and medical expenses (along with other damages) against the liable third-party.

What is the collateral source rule, exactly?

It’s actually quite simple.  Basically, the rule prevents the introduction of evidence relating to bills paid by a “collateral source,” such as workers’ compensation, or a health insurer.  For example, if you had all your medical expenses paid off by workers’ compensation insurance, you could still claim those medical expenses as damages in your lawsuit against the liable third-party defendant.  The defendant could not introduce evidence of your workers’ compensation benefits, and would therefore be required to pay your medical expenses (even though you already paid them off thanks to workers’ compensation).

Stated succinctly: the collateral source rule allows you, in certain limited circumstances, to obtain a financial windfall in the form of a “double recovery.”

Speak to an Experienced Phoenix Injury Lawyer for a Free and Confidential Consultation

The attorneys here at Hirsch & Lyon have over 65 years of combined experience representing the injured in a range of motor vehicle accident lawsuits (car, truck, motorcycle, and pedestrian disputes), including those that involve related workers’ compensation claims.

We are both client-oriented and results-focused.  Over the years, we have secured hundreds of millions of dollars on behalf of injured clients, working tirelessly to secure favorable verdicts and settlements.  We are thorough about preparing for the possibility of trial, and as such, we have a competitive advantage during negotiations.

Call 602-535-1900 today to get connected to an experienced Phoenix injury lawyer for a free consultation.

In Arizona (and throughout the country), even once you have secured a court judgment in your favor, the task is not yet complete — you must still collect the damages which you are owed by the defendant.  The type of case is irrelevant to collection.  Whether you were involved in a car accident lawsuit, or some other lawsuit, will have no effect on the procedure that you are required to follow.

Unfortunately, defendants can be challenging.  Though in most cases the defendant will honor their responsibilities and — having lost the case — will pay the damages that you (the plaintiff) are owed, in some cases, the defendant will maneuver around the judgment and create roadblocks to collection.

The defendant may ignore your request for damages, costs, and legal fees.  Alternatively, they may outright refuse to pay the judgment.  As a general rule, these are a clever application of stalling tactics.  If the defendant can stall for a long enough period of time, then they may be able to hide or otherwise relocate their assets so that you — as the judgment creditor — cannot seize them.

What can you do to ensure that you collect your damages in full, after a judgment has been entered in your favor?

Let’s take a look at some of your options.

What is a Court Judgment?

A court judgment is essentially a formal document that gives you, the successful plaintiff, the unrestricted right to seize the assets of the defendant in order to satisfy the damages owed to you.  In Arizona, court judgments last for a long period of time — five years, running from the date that the judgment was entered) — to account for the difficulty in seizing assets that the defendant may attempt to hide or relocate.  The judgment may also be renewed, if deemed necessary, by filing an affidavit of renewal with the court.

If the defendant makes collection difficult, and extends the collection process significantly, the judgment amount will accrue interest year-on-year.

There are many advantages to the judgment being made enforceable over a quite extended period, and two stand out as particularly useful for the typical plaintiff.  These advantages are as follows:

  • Assets may be seized when the defendant least expects it, years after they have “let their guard down,” so to speak, and
  • You can wait until the defendant obtains sufficient assets to pay off the judgment before collecting.

Suppose, for example, that you have been awarded $250,000 in damages in a motor vehicle accident lawsuit.  At the time of the lawsuit, however, the defendant has not been doing very well financially.  They are unemployed and have few savings.  They do not have sufficient assets to satisfy the judgment.  If you were to attempt to collect, you would only be able to collect $30,000.

Now, imagine that you wait four or five years, and the defendant has secured a high-paying job and has invested well over the years.  Their total assets are $300,000.  If you attempt to collect, you can fully satisfy the amount owed on your original judgment.  Even better: the defendant will owe you more due to the accrual of interest!

Seizing the Necessary Assets

When attempting to seize the assets of the defendant (in order to satisfy the judgment), perhaps the first issue you’ll run into is the defendant hiding or relocating their assets.  For example, a defendant may — after losing a case and having a judgment entered against them — move significant assets “offshore,” into foreign accounts.

As the winning plaintiff (and thus, the judgment creditor), you are legally entitled to collect, but you cannot do so if you don’t know where the assets are!  Third-party investigation may work, to an extent, but even better is filing for a Judgment Debtor’s Examination with the court.  The Judgment Debtor’s Examination will compel the defendant to appear in court and answer truthfully as to the location of their various assets.  The defendant will also be ordered not to relocate the assets further, and you will be granted a Writ of Execution by the court to seize said assets.

If the defendant has not attempted to hide or relocate assets, or if you know exactly where those assets are already, you may simply file a Writ of Execution (for personal property and other assets) or a Judgment Lien (for real estate property).  This gives the county Sheriff — where the assets are located — the go-ahead to seize the assets on your behalf.

Arizona Limitations on Seizure

It’s worth noting that you cannot seize all assets.  Some are “off limits,” so to speak.  If the defendant does not have significant assets, and all they have left is their sole personal residence, you may have difficulty seizing the residence (and forcing a sale) — this is known as the homestead exemption.  In fact, there are many other exceptional situations that may prevent you from collecting your rightful judgment.  For this reason, it’s critical that you work with an experienced attorney who has a track record of success in securing the defendant’s assets on behalf of clients.

Contact a Skilled Phoenix Injury Lawyer Today for Assistance With Your Claims

Here at Hirsch & Lyon, our attorneys not only have decades of experience representing injured plaintiffs in motor vehicle accident litigation, but also have extensive experience handling the collection of monetary judgments — we are therefore well-positioned to identify and secure assets necessary to fulfill the judgment.

Call 602-535-1900 today to schedule a free consultation with a skilled Phoenix injury lawyer here at Hirsch & Lyon.

Our Phoenix Accident Attorneys Explain the Duty to Mitigate

In Arizona, and throughout the country, injured plaintiffs are entitled to recover damages for damages they incur due to the negligent, reckless, or intentional acts of others — whether they are injured in a car accident or a slip-and-fall accident, or some other accident scenario.  This right to recovery is not absolute, however.  Injured plaintiffs must act in accordance with their various duties and responsibilities under the law, which includes the duty to mitigate their losses.

What is the Duty to Mitigate?

Defendants cannot be held liable for losses that they do not actually cause.  This “causation” requirement is fundamentally linked to the duty to mitigate.

How so?

The duty to mitigate requires that the injured plaintiff exert “reasonable efforts” to reduce their total losses — failure to do so will result in a proportional decrease in one’s recoverable damages.  Losses can be quite varied, and as such, mitigation must cover all the losses that the plaintiff intends to claim.  This can all be somewhat confusing to understand, so let’s use a quick example to clarify.

Suppose that you are injured in a motor vehicle accident by the defendant, who was excessively speeding at the time, thus causing the accident.  You sustained significant neck and back injuries during the accident, and as a result, you can no longer work.  Now, suppose that you seek adequate medical diagnostics and treatment as soon as possible.  Your doctor asks that you sign up for long-term physical therapy sessions in order to regain some of your pre-accident function.

If you fail to attend the physical therapy sessions, then the defendant may have an excellent argument for your “failure to mitigate.”  After all, they could argue that your injuries were worsened by your refusal to attend the physical therapy sessions, that the injuries would have mostly resolved had you attended the sessions, and that you could have returned to your job soon thereafter (or found alternative employment).  The defendant could thereby convince the court to reduce your damages, as they did not actually “contribute” to a significant portion of the damages sustained over time.

Importantly, the duty to mitigate is not exclusively linked to medical expenses and pain and suffering damages.  If you are injured in an accident, and afterwards, you don’t seek employment, then you cannot claim the same amount of “lost wages” (as you did not seek to mitigate those damages).

Reasonable Efforts are Required

The duty to mitigate is premised on “reasonable effort.”  As the plaintiff, you are not expected to make perfect decisions — just reasonable ones, given the circumstances.  What constitutes reasonable effort depends largely on the circumstances.

For example, if you fail to seek out basic medical services after an accident, then that will almost certainly constitute a failure to exert reasonable effort towards mitigating your damages.  On the other hand, the defendant cannot hold you to ridiculous standards.  If you do not seek out a niche medical expert located in a foreign country, that would likely not be considered a violation of your duty to mitigate (as it would demand more than “reasonable effort”)

Make an Appointment With an Experienced Phoenix Accident Lawyer Today

If you have been injured in an accident due to the negligence or wrongful conduct of another individual (or entity), then you may have the right to sue and recover damages for your various losses.  Still, despite the fact that you may be entitled to damages under Arizona law, it’s important to note that you have responsibilities as the injured plaintiff that — if you fail to uphold them — could undermine your claim.  Among these responsibilities is the duty to mitigate your damages.

Here at Hirsch & Lyon, our attorneys have more than 65 years of combined experience representing injured plaintiffs throughout the state of Arizona.  We specialize in motor vehicle accident litigation (car, truck, and motorcycle cases), and due to our commitment to these specialized practice areas, we are uniquely well-positioned to successfully litigate such claims on behalf of our clients.

We do not get paid until you obtain a settlement or verdict in your favor.  Our contingency fees are discounted, however, ensuring that even when you win your case, you get to keep more of what you’ve fought so hard to obtain.

Call 602-535-1900 or submit an online claim form to schedule a free consultation with an experienced Phoenix accident attorney here at Hirsch & Lyon.

Waivers of liability are quite common, particularly in the context of recreational activities — this ubiquity means that laypeople are generally familiar with the concept of a “liability waiver” and what it entails.  Simply put, a liability waiver shields the defendant from civil liability for serious injuries and damages that they cause due to their own negligence.

Still, few laypeople understand that liability waivers are not always applicable to a given situation, or that enforceability will depend on a number of different factors that could be evaluated in their favor.

Freedom to Contract

Arizona law recognizes the freedom to contract, but this freedom is not unlimited.  Though two or more parties are reasonably entitled to contract around their potential liabilities, the law will not necessarily accept all such agreements as enforceable.  In Arizona, for example, the state generally disfavors agreements (i.e., liability waivers) designed to release liability.  As such, any and all liability waivers are strictly construed against the defendant seeking to enforce the waiver.

Determining Whether the Liability Waiver is Enforceable

Enforceability of a liability waiver depends on the circumstances.  Courts will analyze the facts of the case (surrounding the liability waiver) and will consider those facts in the context of the following factors.

Ambiguity in the Waiver Agreement

Liability waivers must be sufficiently clear and unambiguous such that they function as a fully adequate notice of the inherent dangers associated with the covered activity.  The dangers must be reasonably communicated to the participants.  If there is ambiguity in the liability waiver language, then this will weigh against a finding of enforceability.

Specificity of the Release from Liability

In Arizona, it has been long-established by the courts that enforceable liability waivers must specify the particular risks and harms for which liability is being released.  Though it is not necessary for the defendant to specify every single potential risk or harm, the language of the agreement must make it clear to the participant what the scope of the liability shield actually entails.

Public Policy Considerations

In some cases, public policy will count against a finding of enforceability.  For example, a product manufacturer — say, a tire manufacturer — cannot avoid liability through a waiver agreement.  Product manufacturers are held strictly liable for damages caused by their defective products.  As such, it would be against public policy for them to be able to avoid the application of this strict liability framework.

The “Intentional Conduct” Exception

In Arizona, and elsewhere, liability waivers cannot be used to shield the defendant from liability for their intentional misconduct.  Waivers may only release the defendant from liability for their negligent conduct.

How does this work, exactly?

Suppose that you are injured in a go-karting accident.  You are vacationing with your family when you decide to compete in a go-kart race with a recreational company.  When you pay for the rental, you sign a waiver of liability that exculpates the defendant from liability for damages incurred (due to their fault).  Once you start go-karting around the track, however, the owner takes a second go-kart and slams it intentionally into yours, causing you to suffer serious injuries.

Despite the fact that you signed a liability waiver, an Arizona court is unlikely to enforce it, as it is not relevant to the case — the defendant’s conduct (intentional) is not covered by the waiver.

Schedule a Free Consultation With an Experienced Phoenix Injury Lawyer Today

Unfortunately, many prospective plaintiffs do not realize that they have a legitimate claim for damages (even if they have already signed a liability waiver).  If you have been injured in some activity where you were required to sign a liability waiver, then you’ll want to consult with a qualified attorney as soon as possible.  Your attorney will evaluate the facts of the case and will help you develop a strategy for convincing the court not to enforce the waiver.

Here at Hirsch & Lyon, our attorneys have several decades of experience serving injured plaintiffs throughout Arizona in a range of motor vehicle accident litigation.  Our services are designed to prioritize the needs of our clients — not only do we make ourselves available for questions 24/7, but we are willing to make hospital and home appointments (if need be) and provide discounted contingency fees.

Call 602-535-1900 to setup an appointment with an experienced Phoenix injury lawyer here at Hirsch & Lyon.  Initial consultation is free.  We look forward to helping you!

Whether you’ve been injured in a car accident in Phoenix, a slip-and-fall accident, or in any other scenario where the defendant’s negligent or wrongful acts have contributed to your injuries, plaintiffs are entitled to claim (as a separate element) damages for “loss of enjoyment of life” (LEL), otherwise known as “hedonic damages.”  These damages account for a unique set of losses arising from an injury — specifically, the plaintiff must assign a monetary value to their recreational activities, and thus calculate the losses due to the injuries at-issue.

LEL damages have not always been accepted, and in some jurisdictions, there remain questions as to their viability as a separate element of damages.  In fact, Arizona courts have only recently deemed LEL damages independent of pain and suffering damages.  This case law development has led to a spike in litigation involving significant LEL damage claims.

Confused by all this complicated legal terminology?  Let’s break down some of the basics and take a brief look at how LEL damages actually work, and how they might be applicable to your case.

Basics of LEL Damages

LEL damages (i.e., hedonic damages) are intended to compensate the injured plaintiff for various losses related to their recreational activities, social life, and relationships.  They are a form of non-economic damages, and as such, are inherently subjective, which is to say that they are based on your personal, emotionally-tinted experience of loss, as opposed to some objective indication of loss.

Suppose that you are severely injured in a car accident, which results in an extensive, full-body paralysis.  You have become quadriplegic as a consequence of the defendant’s negligent acts.  Under Arizona law, you would not only be entitled to damages for medical expenses, pain and suffering, wage loss, and loss of future earning capacity, but you would also be entitled to recover damages for the “lost enjoyment of life” that extends naturally from your paralyzing condition.

After becoming quadriplegic, for example, perhaps your once-happy marriage falters and it devolves enough that a divorce is necessary.  Further, you may have been an active, sporty person prior to the accident.  Your quadriplegia may prevent you from any serious physical recreation, such as sport.

The Difficulty of Calculating LEL Damages

In the LEL damages context, the claim itself is not necessarily at issue — it is the amount of claimed damages that are typically up for dispute.  Remember, LEL damages are inherently subjective.  Though expert testimony regarding the extent of your injuries (and whether you are capable of engaging in the recreational or social activities at-issue) is certainly valuable, it is up to your attorney to put forth a convincing argument for the claimed damages.

Despite the subjective nature of LEL damages, they must still be reasonably related to the losses.  For example, suppose that your injury renders you unable to play basketball.  If you played only occasionally, however, then the damages cannot be unreasonably high (i.e., $50,000+).  On the other hand, if you were a former collegiate basketball athlete and if you regularly exercised and socialized by playing basketball, perhaps on a weekly basis, then significant damages are justifiable.

LEL damages must also take into account various factors that include the length of the supposed loss (temporary or permanent), the age of the injured plaintiff, the importance of the activity to the plaintiff, and more.

Schedule a Free Consultation With an Experienced Phoenix Injury Lawyer for Further Guidance

If you’ve suffered injuries due to the negligence, recklessness, or intentional acts of another person or entity, then Arizona law may give you the right to sue and recover a range of damages, including those for “loss of enjoyment of life.”  As a general rule, LEL damages tend to be somewhat more difficult to prove, and defendants are very likely to dispute the amount of damages claimed.  You’ll therefore benefit greatly from working with a qualified attorney who has extensive experience handling personal injury litigation that involves claims for LEL damages.

Here at Hirsch & Lyon, our attorneys have served thousands of injured plaintiffs over the years, assisting them throughout the litigation process.  We believe that effective legal representation is personalized to the needs of each client — to that end, we keep our clients fully apprised of the developments in their case, and are committed to prioritizing their goals.  We are extremely confident in our ability to effectively represent the needs of our clients, and as such, we offer discounted contingency fees.

Call (602) 535-1900 to speak with an experienced Phoenix personal injury lawyer here at Hirsch & Lyon.  Your initial consultation is free, and all communication is confidential.  We look forward to advising you on how best to move forward with your injury claims.

In the state of Arizona, loss-of-life claims — more specifically, wrongful death claims and survival claims — are a category of injury claims brought either by the surviving family members, or by the estate of the deceased individual.  When a person is killed due to the negligent or otherwise wrongful acts of another, then Arizona law may entitle a qualified subset of survivors to pursue an action in litigation against the defendant and recover damages.

When most laypeople think of loss-of-life claims, they tend to think of “wrongful death.”  Survival actions are an important part of the legal landscape, however, and may lead to significant damage recovery.

So, what’s the difference?  Let’s take a look.

Survival Actions vs. Wrongful Death Actions

Survival actions are fundamentally different than wrongful death actions, though these differences are often misunderstood.

Stated simply, survival actions are brought against the defendant (who is responsible for causing the death at-issue) on behalf of the deceased individual.  In essence, a survival action gives the estate of the deceased an opportunity to recover damages for the wrongs committed against the deceased individual.  It arguably acts as a form of claim preservation — whatever claims the deceased would have had in the event they survived, are preserved and may be pursued by their estate.

Suppose, for example, that your loved one is killed in a motor vehicle accident by a distracted driver.  Their death was not immediate, however.  After a week of attempted treatment, your loved one finally succumbed to their injuries.  Their estate (managed by their personal representative) would thereafter be entitled to sue the defendant-driver and recover damages for the personal losses suffered by your loved one.

Wrongful death actions are also brought against the defendant (who is responsible for causing the death at-issue), but not on behalf of the deceased individual — instead, it is the surviving family members who bring a wrongful death action.  In essence, a wrongful death action gives those surviving family members a right to recover damages for the losses they suffered as a result of their loved one’s death.  Wrongful death claims have nothing to do with the particular losses suffered by the deceased.

Let’s return to the previous example.  Suppose that your loved one is killed in a motor vehicle accident by a distracted driver, but the death is immediate.  As one of the qualified surviving family members, you would be entitled to bring a wrongful death action against the defendant-driver to recover damages for “your” losses, which may include pain and suffering, emotional distress, medical expenses (paid out of your pocket), and more.

It’s worth noting that survival actions and wrongful death actions are not mutually exclusive.  It is entirely possible for the death of a loved one to give rise to both types of actions.

Filing a Claim

Survival actions must be brought by the estate of the deceased (which is likely administered by the personal representative of the deceased).  Though surviving family members are not necessarily entitled to bring the action — unless one of them is serving as the personal representative, of course — they are most likely the ones who will benefit from the eventual damage recovery.

For example, if the estate brings a survival action against a defendant and secures $100,000 in damages, then those funds will eventually be distributed to the beneficiaries of the estate.  If you and your sibling are the two sole (and equal) beneficiaries, then each of you will receive $50,000 more than originally anticipated.

Damages in a Survival Action

In Arizona survival actions, the law allows for the recovery of damages for lost wages, funeral expenses, burial expenses, and medical expenses (paid by the deceased).  Depending on the circumstances, punitive damages may also be available.

Unfortunately, however, there are strict limitations on “pain and suffering” recovery — section 14-3110 of the Arizona Revised Statutes specifically restrict recovery of pain and suffering damages in a survival action.

Schedule a Free Consultation With a Skilled Phoenix Wrongful Death Attorney

Loss-of-life claims can be particularly confusing for those who have little (or no) experience with injury lawsuits.  Depending on the type of action — wrongful death or survival — litigation will proceed quite differently.  Given the relative complexity of such litigation, it’s important that you get in touch with an experienced attorney who has a proven track record of success in handling wrongful death and survival actions.

Here at Hirsch & Lyon, we bring decades of combined experience in loss-of-life litigation to bear in representing those affected by the wrongful death at-issue.  We are committed to the provision of client-oriented legal advocacy.  Not only are we paid on contingency (e.g. we are only paid if you succeed in recovering damages), but we accept a reduced fee in comparison to competitor firms.  We also keep our clients “in the know” with regard to developments in the case, and work with them to ensure that our strategic goals are aligned.

Call (602) 535-1900 to schedule a free consultation with an experienced Phoenix wrongful death attorney here at Hirsch & Lyon.  We look forward to assisting you.

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