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The “Unusual” Minor Settlement September 30, 2013

Posted by Attorney Jonathan Groth in Minor Settlements.
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When we settle a claim for someone under the age of 18 years we just assume that everyone will be asked to get in front of a Circuit Court Judge for approval.

It isn’t a guarantee though. Sometimes insurance companies don’t require a minor settlement hearing. It’s their prerogative. They can do what they want to do when it comes to demanding court approval.

That’s what makes some minor settlements unusual. It is the unusual case that does NOT require court approval. The statute involved is:

Wisconsin Statute Section 807.10

(1) A compromise or settlement of an action or proceeding to which a minor or individual adjudicated incompetent is a party may be made by the guardian, if the guardian is represented by an attorney, or the guardian ad litem with the approval of the court in which such action or proceeding is pending.

It is really up to the insurance company to decide whether they want to risk not having the force and effect of the court system. Minors cannot be held to a contract. So, if an insurance company pays an amount of money to settle an injury claim for a child and does NOT require court approval that minor could come back when they are 18 (but before they are 20) and file a lawsuit against the insurance company for damages.

You can be sure that the insurance company would fight the claim and show the court the cashed check, letters and other claims documents regarding the claim. It would be up to the court to decide whether the claim would survive. My guess is that a jury would ultimately have to decide what amount in damages the plaintiff would recover. If the jury verdict was for an amount larger than the settlement the plaintiff would have “won.” But if the amount was for an amount less than the previous settlement the insurance company may be able to recover all of their costs from the plaintiff for having to fight the claim.

Most of the time we recommend that a Judge approve a minor settlement even if the insurance company doesn’t require one.

Call us if you have any questions about the process.

877-375-7001

Attorney Jon P. Groth is a Wisconsin Personal Injury Attorney located in the Milwaukee area and serving clients across Wisconsin from Black River Falls to Wauwatosa and Kenosha to Marinette.

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Attorney Groth’s Interview on WIBA 1310 Madison February 23, 2013

Posted by Attorney Jonathan Groth in FAQ Personal Injury.
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Attorney Groth’s Interview on WIBA 1310 Madison

Listen to Attorney Groth’s interview on News/Talk 1310 in Madison.  

Apps to Stop Texting While Driving February 22, 2013

Posted by Attorney Jonathan Groth in FAQ Personal Injury.
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Apps to Stop Texting While Driving

I found this interesting article about various apps that will prevent a phone from texting while driving.  The app works with the phone’s GPS to see how fast the phone is moving.  If it is moving faster than a person can walk the phone is blocked from texting.  I haven’t tried it.  In theory it would prevent someone from texting while driving a car or while on a bike or bicycle.  If you are a passenger in a car you can answer a timed question to unlock the app.  Maybe a good idea for parents with teenage kids. 

Scary Research About Teens and Texting While Driving June 14, 2012

Posted by Andrew Christman in Drunk Driving, FAQ Personal Injury, Milwaukee Litigation Attorney, Milwaukee Personal Injury Attorney, Personal Injury Law, Wisconsin Auto Accidents.
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New research released by State Farm Insurance shows that teen may not be getting the message about the dangers of texting and driving.  Some of the figures produced by this survey are quite shocking.  Notably, over half of teens with their license, 57% to be exact, admit to text messaging while driving.  The survey produced by State Farm also makes comparisons between teens views on texting while driving and drinking and driving.  While 83% of teens think they are likely to be in an accident if they regularly drink and drive, only 63% of teens believe they are likely to be involved in an accident if they regularly text while driving.  The study also shows a link between parents who regularly talk to their children about safe driving.  Of teens who responded that they never texted and drove, 82% said their regularly talked to their parents about safe driving.  Of teens that reported that they do text while driving, only 67% reported talking to their parents regularly about safe driving.

Texting and driving became illegal in Wisconsin in 2010 with the passage of Wisconsin Statute 346.89.  The risk of getting a ticket, however, is nothing compared to the safety risk that texting and driving creates.  Text messaging while driving is an extremely dangerous action both the person doing it and those around him or her.

If you have been the victim of an inattentive driver or have been injured in an automobile accident in the Milwaukee area or any other area in Wisconsin and are in need of a personal injury attorney, contact Groth Law Firm S.C.

New Wisconsin Auto Insurance Law June 9, 2010

Posted by Andrew Christman in FAQ Personal Injury, Motorcycle Collisions, Personal Injury Law, Wisconsin Auto Accidents.
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As of June 1, 2010, auto insurance is now mandatory for all car owners in Wisconsin.  The law requires minimum coverage of $50,000 for the injury or death of one person, $100,000 for the injury or death of two or more people and $15,000 for property damage.  Drivers that do not have insurance can be fined up to $500.

The law requires that drives keep proof of their insurance information in the car.  Police officers can request proof of insurance at traffic stops and accidents.  Failure to provide this proof of insurance can result in a fine of $10.

The law also requires uninsured and underinsured motorist coverage each with minimum limits of $100,000/$300,000 for bodily injury coverage.

More information on the new insurance laws can be found at the websites for the Office of the Commissioner of Insurance and the Wisconsin Department of Motor Vehicles.

Feel free to contact Groth Law Firm, S.C. if you have any questions or would like to discuss your need for a personal injury attorney.  Groth Law Firm, S.C. has offices to meet with clients in Brookfield, Milwaukee, Green Bay and Marinette.

Who is Watching You on Facebook, LinkedIn, Twitter etc. May 20, 2010

Posted by Attorney Jonathan Groth in FAQ Personal Injury, Personal Injury Law, Wisconsin Auto Accidents.
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I’ve presented on the topic of using social media and the internet as a sword and shield in litigation.   If you don’t think that insurance companies are trying to avoid liability by following injured parties on social media pages you are mistaken.

Check out this post from the Pennsylvania Law Monitor:

The Internet and social networking sites have changed the face of litigation in this country. However, there are some precautions that you can take to protect yourself, short of boycotting the Internet all together. First, be careful in reviewing the photos and posts on your social networking site. Remove anything that you would not want an insurance company lawyer to see that could help them defend against your case. Next, check your privacy settings which enable you to block certain people from seeing you on a particular site (Facebook allows this). It is also helpful to search your name in the search field and see what comes up to make sure it is acceptable (it is advisable to do this on Google and YouTube as well). Finally never accept friend requests or respond to emails from people you do not know.

The Danger of Bedrails and the Elderly March 18, 2010

Posted by Attorney Jonathan Groth in FAQ Personal Injury, Personal Injury Law.
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The New York Times recently wrote a good piece about a lawsuit currently taking place in Wisconsin.  The elderly nursing home resident died by asphyxiation.  He was found with his neck caught between his mattress or bed frame and the bedrail.

The federal government and the State of Wisconsin have both warned of the danger of bedrails at nursing homes and the elderly. 

The article has an interesting quote:

“Rails decrease your risk of falling by 10 to 15 percent, but they increase the risk of injury by about 20 percent because they change the geometry of the fall,” he explained in an interview. Confused or demented patients who try to climb over the rails, instead of falling from a lower level and landing on their knees or legs, are apt to fall farther and strike their heads.

If your or someone you know has suffered an injury at a nursing home be sure to research and interview the attorneys you intend to hire.  Feel free to contact me for any help you may need.

Texting While Driving March 8, 2010

Posted by Attorney Jonathan Groth in Personal Injury Law.
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 The Intentional Tort of Texting

 

Every legal theory has to start somewhere.   Punitive damages for drunk drivers didn’t arrive over night.   Punitive damages for intentionally disregarding the rights of others in general didn’t arrive over night.  It took the tragedy at Milwaukee’s Miller Park for the Wisconsin Supreme Court to decide in the victim’s favor on punitive damages.  

The punitive damages saga has another element on the horizon.  Representative Peter Barca and others have introduced, and both chambers may soon pass, a law banning texting while driving in Wisconsin.  With this law the argument to assess punitive damages against texting drivers will get that much easier. 

To get a feel for where you are going you have to know where you have been.   The “new” punitive damages law isn’t that “new.”  For the past 15 years Wisconsin residents have lived with a law allowing punitive damages when “evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.” Wis. Stats. Sec. 895.85(3).  Caselaw is chock full of examples where drunk drivers, batterers and trespassers were liable for punitive damages based on choices they made.

In 2005 the Supreme Court decided the Wischer case which involved the collapse of the “Big Blue” construction crane at Milwaukee’s Miller Park. The plaintiffs, the estates of workers killed in the accident, sought punitive damages based on the decision to lift a section of the stadium roof despite strong winds. They argued that the decision to proceed with the lift was in intentional disregard of the workers’ rights because 1) it was an intentional act that 2) resulted in the disregard of the plaintiffs’ rights.  As you already know the jury returned a massive punitive damage award. 

Before, and especially after, this decision plaintiffs attorneys have tried, and many times failed, to get circuit courts as gatekeepers to allow a jury to decided whether a texting driver’s actions warrant punitive damages.   

Plaintiff’s attorneys have argued that to impose punitive damages would both serve to punish the wrongdoing of a tortfeasor and have the exemplary effect of furthering the legitimate state interest of curbing unsafe driving practices involving cell-phones.   Punishing the wrongdoer is “easy” to show.  Simply put, a big judgment is punishment.  Without a texting while driving ban counsel have had to argue in generalities that punitive damages would further a state interest.  But maybe not for too much longer.  If the texting while driving ban is passed then there will be little difference when compared to the argument for punitive damages against drunk drivers.

First, I say “little difference” because it is against the law to drive while under the influence of alcohol and thus a legitimate state interest exists.  If and when the texting while driving ban is passed the State will have spoken and made obvious the legitimate state interest of curbing this unsafe driving practice.

Second, I say little difference because nowadays everyone is spreading the news that texting while driving is dangerous.  Milwaukee’s Sheriff Clarke, American Idol’s Danny Gokey and countless billboards across our state remind every driver that texting distracts and distracted drivers are dangerous.    A driver choses to text while driving.  That driver, I believe it is safe to argue, was aware of the dangers involved because of the billboards and, of course, our favorite son Danny Gokey.  That driver made the decision to take his/her eyes off the road.  Wisconsin’s Civil Jury Instruction 1070 states that when you look but don’t see what is in plain sight it is as if you did not look at all.   Texting takes driver’s eyes and attention off of the road.  A texting driver’s attention is influenced by the need to stare at their little cell phone screen.  They are “under the influence” of the need for constant communication.  Is it that different than drunk driving?  Is it worse?

Representative Barca has been quoted as saying that texting is 6 times more dangerous than talking on the phone while driving.  Simply Google “texting while driving is like drunk driving” and a gaggle of scientific and not so scientific studies will pop up.  One study shows that a texting driver’s slow reaction time equaled 30 extra feet of stopping distance.   The same study showed that a drunk driver’s reaction time cost him “only “ 15 extra feet of stopping distance.   Studies are now showing that texting while driving is, in some instances, more dangerous than driving while drunk.   

It’s clear that punitive damages are available under section 895.85 if a defendant “acts with a purpose to disregard the plaintiff’s rights, or is aware that his or her acts are substantially certain to result in the plaintiff’s rights being disregarded.” Strenke 2005 WI 25 para 3.  Don’t be surprised to see a slew of punitive damage causes of action soon after the texting while driving ban is passed.   Isn’t it about time?

Visit www.grothlawfirm.com for more information or to contact attorney Jon Groth.

Attorney At Your Service January 28, 2010

Posted by Attorney Jonathan Groth in Personal Injury Law.
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I’ve been absent these past few months and I apologize. I just finished a jury trial in Milwaukee County. During the trial preparation my client and I were talking about how long we’ve known each other. I was the attorney that answered the phone when he called in the very first time soon after the collision. He didn’t talk with a paralegal, “intake specialist” or secretary. I worked with him since, literally, day one.

This kind of service is important to think about when you search/interview for your attorney. Hiring an attorney is a very personal matter. Availability (email, cell phone etc) and personality are extremely important to make sure your attorney will be with you for the long haul. By this I mean potentially to trial. Even though the vast majority of my clients’ cases settle before filing a lawsuit and before trial I think it helps them to know that their attorney will be willing and has the experience to fight at trial.

Again, sorry for the long delay in posting. I’ll be writing more in 2010.

Service of Process on Internet Sites November 4, 2009

Posted by Attorney Jonathan Groth in FAQ Personal Injury, Personal Injury Law, Wisconsin Auto Accidents.
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Need to subpoena Facebook or Gmail?  If you do, then you’ll need to know where to serve the subpoena.  For example, how would you know that Facebook has an email just for subpoenas (subpoena@facebook.com)?  Do you know the office in Palo Alto and telephone and fax number for the Facebook department that accepts service?

You’ve gotta check out this site.  It is meant for law enforcement but open to the public.