My Fellow Personal Injury Attorneys' Advice Was Wrong, and it May be Costing You Thousands of Dollars.Read Now
I am not blogging about this to throw my fellow personal injury attorneys under the bus. I'm doing it because the incorrect answers they've posted may be costing people with claims tens of thousands of dollars. I also would like to teach my readers a "life hack" for small claims or limited jurisdiction courts so they can increase their earning potential if a cause of action ever arises.
The other day I was browsing Avvo, when I noticed a question that was asked by someone seeking legal advice.
The question asked was:
These answers followed:
These answers are incorrect. In many other states, they may be applicable, but not in California, and the asker was from California.
First of all, in a nutshell, the generally accepted principal of res judicata states that you cannot sue twice for the same cause of action. Therefore, in most states, if Cartman is negligent and gets into a car accident with Kenny, thus injuring (but not killing) Kenny, Kenny can only sue Cartman for negligence once. In that suit, he must allege all damages. In most car accident cases the damages will be those arising from property damage to the vehicle, and those arising from the bodily injuries, such as medical bills, lost wages, and pain and suffering.
However, California has something called the primary rights theory (Crowley v. Katleman (1994) 8 Cal.4th 666, 681). What this theory states is that a cause of action consists of a right that is violated. The way this plays out is that the courts recognize that in the above accident, Kenny has the right to 1. A car without property damage and 2. A body free of bodily injury. By driving negligently, Cartman has violated each of those separate rights. This means that in California, Kenny can sue Cartman two separate times.
Why does this matter?
Let's say you're suing in small claims court. The most you are allowed to ask for in California Small Claims courts is $10,000.00. If your bodily injury claim is clearly worth more than $10,000.00, a good strategy would be to NOT claim property damage loss in the complaint. Leave it out, sue for the bodily injuries, and get the full $10,000.00. Then, sue separately for property damage, and ask once again for whatever the claim is worth, up to $10,000.00.
With this information, you can now get up to $20,000.00 in damages stemming from a single car accident rather than just $10,000.00. If you're in California Limited Jurisdiction court, the limit is $25,000.00 and this theory would apply as well, so you would be able to get up to $50,000.00 in damage stemming from one accident rather than just $25,000.00.
When I represent my clients for their personal injuries, I make sure that I am updated with the latest developments in the law so that my clients get what they deserve.
If you or your loved ones have been injured and need a personal injury that is fluent in English, Español and Hebrew, call the Law Offices of Yoni Weinberg at (818) 697-1079 for a free consultation. If you don't win, we don't charge.
Disclaimer - This is not legal advice. This is merely an opinion based on general legal principles.