93.1 KISS FM – Ask A Lawyer, Part 18-1

Automated voice: You’re listening to Mike & Tricia on 93.1 Kiss FM.

Mike: I gotta tell you, I am just as confused with the math for Yasmin’s “Ask A Lawyer” question as well. So perhaps Michael Gopin, “Ask A Lawyer” can kind of, like, flesh this out for us. There’s math involved.

Tricia: There’s math involved. And neither you nor I are any good at math. Okay. So Yasmin writes that she was recently in an accident. The police report says that it was the other party at fault. But when she was talking to the insurance agent, they said that Yasmin is 20% at fault for the accident. And she says, “I’m not sure why. If the police report says the other party is at fault, then how can I be 20% liable for this accident? I’m not sure if this makes any sense.”

Mr. Gopin: Well, Jasmine, it happens all the time actually. In Texas, they have what they call comparative negligence, which means in any given accident, one party could be 100% at fault, they could be 99% at fault, they can be 80% at fault, they can be 50% at fault, or any number in between.

So what the insurance adjuster is trying to do is they’re really trying to save money, but what they’re trying to do is blame you partially for this accident. In other words, maybe you were going too fast. Maybe you could have avoided the accident by turning right. Maybe there was something else involved.

Mike: So what they’re doing is they’re reading the police report, and they’re coming up with this on their own. It’s not like the police wrote it in there.

Mr. Gopin: Right. No. The police didn’t write it in there. And the police rarely do that anyway, but…

Mike: Yeah. They just write down the facts of the accident. And then the insurance adjuster is looking into these…you know, the facts, and they’re going, “Oh, well, she could have gone slower,” or blah, blah, blah.

Mr. Gopin:  Exactly. “She could have turned left. She could’ve turned right. She could have braked harder,” you know, all these kinds of things. And I don’t know the facts of this particular accident, but it happens all the time. I mean, I’ve seen cases where it’s a stop sign case, and someone runs a stop sign, and, “Well, you could have avoided it. You could have seen the car coming.”

Mike: You could’ve seen the car coming.

Mr. Gopin:  And, you know, what happens in that case, is either you argue, and you try to get that number down to zero or less, or you can file a lawsuit, and have a jury decide that number because when you go to court, the jury will determine the same thing that the insurance adjuster is trying to determine right now. They’re gonna say, “Okay, was the plaintiff at fault? Was the defendant at fault? And if they were, what percentage?” So it adds up to 100%, but it could be anything in between, between 100/0, 80/20, or whatever it turns out to be.

Mike: Is this a situation where you are better off with a lawyer representing you? Or is it a situation where you’re better off just saying, “Okay, fine.”

Mr. Gopin:  Well, it depends on the facts of this accident, and it depends on how much the damage to the car is. I mean, let’s just say it’s $30,000 of the damage, 20% is $6,000 so it’s a lot of money. If it’s $300, and it’s 20%, it’s $60 so it’s probably not worth it. So it just depends on the exact facts of how much damage we’re talking about here. And if there was an injury also, because this 20% goes to the injury claim also. So it’ll reduce your injury claim by 20%. So it may be, definitely, a case for a lawyer depending on the facts.

Mike: Okay. All right.

Tricia: Mostly, if you go to a lawyer with this kind of thing, and you do the math for them, you’re gonna tell them, “Look, you know what? This is not worth your time and effort,” because it’s not worth your time and effort as a lawyer.

Mr. Gopin: Well, it depends. I mean, you know, also it depends on how much money we’re talking about.

Tricia: No. Yeah, that’s what I mean. But, like, if it was a $600 case you’d probably tell them, “Look, there’s no point here.”

Mike: Yeah. They’re better off eating the 20%.

Tricia: Right. Exactly.

Mr. Gopin:  Because going to courts can cost them more money than the 20% anyway.

Tricia: Yeah. And way more than the $600.

Mike: Sure, Sure.

Tricia: So, yeah.

Automated Voice: It’s Michael Gopin, “Ask A Lawyer” on “Mike & Tricia Mornings.”

Tricia: Iram [SP] says, “Can I file a case against my employer? I was injured on the job and they’re refusing to pay my medical bills. They did help me when the incident first happened, but now my medical bills are starting to pile up from the accident, and they don’t wanna help me with any of it anymore.”

Mr. Gopin:  Okay. Well, good question. The question, first of all, is whether they have workers’ comp insurance or not? If they have workers’ comp insurance, you just have to file a workers’ comp claim. The employer is not involved, and you go through the worker’s comp commission to make your claim.

In this case, I’m thinking that there’s probably not workers’ comp, by the way, she wrote the question, so what they call that is called a nonsubscriber type of case, okay? Nonsubscriber means you’re not subscribing to the workers’ comp care here. In that case, the employer is not automatically liable for your damages. You have to prove that they were negligent, that they did something wrong.

But it’s different than the car accident case we just talked about. In this case, as long as you can prove they’re at least 1% negligent, you could have been 99% negligent, then their employer is responsible. So you just have to show that they did something wrong even if it was very minor that caused the accident. And then they’re gonna be responsible for the bills.

You’d have to go to court perhaps and file a lawsuit. There’s many lawyers that do these type of cases. The issue then, again, is also how big your employer is, and if they’re going to be judgment proof because many employers are also judgment proof these days, and there’s usually no insurance involved in these types of cases.

Tricia: Okay. Wait a minute. Not every employer has workmans’ comp insurance? They don’t have to have it?

Mr. Gopin: That’s not required. So there’s many companies that do not have workers’ comp, they’re go bear, they call it, and they just take care of the risk themselves.

Tricia: Hey, we’re a family show, don’t say things like that.

Mike: It’s a legal term.

Tricia: Okay. All right. Okay.

Mr. Gopin: No insurance.

Mike: This is “Ask A Lawyer.” He only talks legalese.

Tricia: I made him blush. Look at the poor guy, he’s you dying. He’s like, “Oh, god.”

Mr. Gopin: Oh, god.

Tricia: And Arturo says, “I recently had a hernia mesh repaired for the third time. And I don’t think this one’s gonna work either. Can you tell me more about the hernia mesh cases? Do I have a possible claim against my doctor for medical malpractice? What should I do next?”

Mr. Gopin: Well, this is a case that you, definitely, will need a lawyer. There’s hernia mesh cases going around that, it’s not against the doctor, it’s against the manufacturer of the mesh. It was defective and it’s causing injuries to people, and causing to have revisions, and surgery, and pain, and all sorts of complications, and problems. So I would advise you to give us a call, we can help you with this.

The requirements are, basically, you need to have a revision. You need to have the hernia mesh surgery, have all these problems and issues, and then get it fixed, in order to have a case that typically lawyers will accept. And the hernia mesh surgery had to have been done after 2008. That’s when the defective hernia mesh material started to be used. So those are the minor requirements.

And these cases take a long time. It’s a big class-action case. There’s thousands and thousands and thousands throughout the country, and, you know, it’s really painful. And I feel really bad for you that you’ve had all these problems with it and it may not resolve your problem. I hope it does, the third one. But you definitely have a case and it’s not against the doctor. It’ll be against the hernia mesh manufacturer.

Mike: Okay. We’ll be right back. And when we come back, we have one last question for Michael Gopin, “Ask A Lawyer” and it has to do with defective earplugs. So if you have served, and you’re having some issues, then stick around, and let’s get to the bottom of that one. Next, on “Mike & Tricia Mornings.”

Michael J. Gopin

Michael J. Gopin has practiced law in El Paso since 1987. Even after more than 30 years, he still remembers his first jury case. It was two weeks after receiving his license, when he represented a person whose life had been forever changed after being blinded in a work-related incident...