Frequently Asked Questions

Answers from a Knowledgeable Sacramento Personal Injury Attorney

You may have several questions when deciding on a Sacramento personal injury lawyer to handle your case. Below are answers variety of questions we regularly hear which will give you some idea of what our firm does and how it can help you.

Please note that the answers to these frequently asked questions should not be construed as legal advice. Laws vary greatly throughout the United States. All situations differ, and you should always consult the advice of a lawyer before making decisions regarding injury claims or other legal matters referred to herein. These answers are intended to provide general information only. Further, viewing this information does not make you a client of Miller Injury Attorneys and does not create an attorney-client relationship between you the viewer and Miller Injury Attorneys.

Personal Injury

What should I do if I am involved in an automobile, motorcycle or bicycle accident?

• Regardless of if it was an automobile, motorcycle, or bicycle accident, immediately contact the appropriate law enforcement agency or file a Traffic Collision Report with the Highway Patrol or other law enforcement authority.
• Do not leave the scene of the accident until you obtain the information referenced below.
• Obtain the names of any parties involved, including the responsible parties and any witnesses. In addition, obtain these individuals’ addresses and telephone numbers.
• Obtain insurance information from the responsible parties and all parties involved in the incident. This information should include:
  • The name of the insurance company
  • The insurance policy number
  • The address of the insurance company, and the telephone number of the insurance company
• Do not discuss the accident or your injuries with anyone other than law enforcement, emergency personnel, your physician, or your lawyer.
• Photograph the vehicles involved in the incident, the area where the incident occurred, and the physical condition of anybody involved in the incident if injuries were caused by the accident.
• If you believe you are injured, see a physician. It is important to note that oftentimes individuals do not realize they have been injured in an automobile or other accident until the days following the incident when they awaken sore and unable to move. It is important to seek medical treatment immediately if you believe you have been injured.
• Do not consent to a recorded statement or sign any document (other than requested by law enforcement) without reviewing it first with your lawyer.

I was injured in an accident that was partially my fault. Can I still recover money for my personal injuries?

Yes. In California, a person may recover monetary damages for his or her personal injuries, even if the injured party was partially at fault. Your recovery, however, will be reduced by the percentage of fault attributable to the injured party.

I am receiving state or federal disability insurance payments, workers' compensation benefits, welfare or public assistance benefits, and was injured in an accident. Can I file a lawsuit for my personal injuries?

Yes, but the agency or insurance company providing the benefits may have a lien on your monetary recovery for the amount of the payments they have made to you or on your behalf. Your lawyer can handle the negotiations for the reduction of the amounts of these liens.

Toxic Molds

What is toxic mold?

It is many experts’ opinions that all mold is harmful to humans. Accordingly, all mold may be “toxic” to humans. Most discussions center around Stachybotrys, or “black mold.” However, it is important to note that Stachybotrys is not the only toxic or harmful mold. Other toxic and harmful molds which are associated with water damaged building materials inside of buildings include without limitation Aspergillus, Penicillium, Chaetomium, and Ulocladium.

What are the human health effects of toxic mold?

According to many experts, the health effects of toxic mold are numerous and varied. Health effects reported by plaintiffs include, without limitation, the following symptoms:

• 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

In addition, individuals exposed to toxic mold may have lifelong health effects including, without limitation, lifelong asthma; lifelong hypersensitivity to mold and other antigens in the environment; and a lifelong higher susceptibility to increased respiratory illness and disease.

How do I test for molds in my home, school, place of business or work?

Mold testing can be divided into two primary categories: air testing and bulk testing.

Air Samples:

Air samples involve the sampling of air within a structure. There are two common methods of air testing. The first air sampling method is called the “viable test method.” This viable method tests for the presence of viable or culturable (i.e., live) mold spores in the air. This is accomplished through the use of a pump which draws air through a device known as an impactor. The impactor contains 400 precisely drilled holes. Air is drawn through the 400 holes on the impactor and onto a petri dish containing a growth media. Air is drawn through the impactor and onto the petri dish for a certain period of time. Thereafter, the petri dish is removed and sent to a laboratory for analysis. The petri dish is cultured for a period of 7 to 10 days. It is then reviewed by a microbiologist. The colonies of mold which form on the petri dish are counted. A multiplier is then used to determine the number of “colony forming units of mold” per meter of air. A written report reflecting the results of the test and the levels of airborne viable or live mold is then prepared by the laboratory.

The second air sampling method is commonly known as “spore trap testing.” This involves testing for the presence of nonviable or dormant mold spores in the air. The spore trap machine is comprised of a small black box containing a laboratory slide with a sticky substance on the slide. Air is passed across the slide and the mold spores in the air attach or stick to the slide. The slide is then removed from the testing mechanism, sealed and sent to a laboratory. At the laboratory a microbiologist examines the slide under a microscope and counts the number of mold spores on the slide. A multiplier is applied to the number of mold spores found on the slide to obtain the number of mold spores “per cubic meter of air.” A written report reflecting the results of the test is then prepared by the laboratory.

The indoor air samples are compared to outdoor air samples. In this comparison, one looks for total mold spore concentrations indoors and outdoors and determines if there is amplification (i.e., more mold) of mold spores in the air inside the building when compared to the outside air sample. In addition, the analysis of air sampling involves comparing the various types or species of mold found inside and outside.

Bulk Sampling:

Bulk sampling is comprised of a number of different types of “bulk” tests. The first type of bulk test is “actual bulk sampling.” Actual bulk sampling involves the removal of building materials with visible mold growth on them, for example, the removal of a piece of mold-laden drywall. This bulk material is placed into a sealed container and sent to a laboratory for analysis. The second type of bulk sampling is known as “swab sampling.” This involves the wiping of visible mold with a Q-Tip type swab, sealing the swab in a glass container and sending it to a laboratory for analysis.

The third type of bulk sampling involves “tape lift samples.” This process involves placing a piece of cellophane or Scotch tape on a surface containing visible mold, lifting the tape, placing it in a sealed envelope and sending it to a laboratory for analysis. The microbiologist at the laboratory examines the tape under a microscope and identifies the types of mold present, if any. The laboratory identifies the type of mold present and rates the concentration and level of mold found on a scale of 1 to 4+, 4+ being the highest. A written report is then prepared by the laboratory regarding the results.

The final type of bulk sampling is known as “dust sampling.” This testing method involves vacuuming certain areas of carpeting and / or furnishings. The materials (“dust”) vacuumed from the carpet are placed in a petri dish containing a growth media. The petri dish is then sent to a laboratory for culturing and analysis. If mold is present in the vacuumed dust it will grow and form colonies in the petri dish. The measurements obtained are provided in a written report and listed in “colony forming units” of mold per gram of dust.

It is important to note that there are no governmental or regulatory standards concerning the levels and/or types of mold which are appropriate or inappropriate in residential or commercial structures.

Can mold damage the structure of my home or other property?

Yes. Mold can destroy the structure of real property causing structural property damage. Mold digests and degenerates building materials including drywall, wood and carpeting.

How can I clean mold from the building structures and materials upon which it grows?

Mold can be cleaned/removed from structures, but the process can be complex. Because both dormant and dead mold spores are just as harmful as living mold spores, one should not merely apply bleach or other substances in an attempt to kill the mold. Instead, the mold spores need to be removed by HEPA vacuuming. In addition, cleaning mold and mold spores from surfaces in areas which are not properly “contained” can lead to mold spreading to other areas. Therefore, with areas of visible mold it is recommended that the client contact a qualified mold remediation company.

Structural mold cleaning / remediation involves the removal of mold and mold laden building materials. Typically, the process involves:

• Stopping and fixing the source of water
• Determining the scope and extent of water damage and mold contamination
• Containing the area to be remediated / cleaned using 6 mm visqueen plastic
• Dressing in the appropriate personal protective gear including Tyvek suits, respirators and goggles
• Placing negative air machines inside the containment area to keep the area under negative pressure to avoid the spread of mold to other areas during demolition and cleaning
• Removing the water damaged and mold laden building materials through demolition and placing debris in sealed
• containers and bags
• Wire brushing and HEPA vacuuming any structural members such as 2 × 4s or 4 × 4 framing containing visible mold growth
• Applying biocides to kill any remaining mold spores which are present and to inhibit further mold growth
• Placing HEPA filters or air scrubbing machines in the containment area to rid the air of mold spores released during remediation
• Rebuilding the area from which the mold laden building materials were removed
• Conducting post remediation/cleaning air sampling within the containment area to insure that “clearance” has been obtained; the air samples taken from the containment area should be compared to outdoor air samples to determine if there is still “amplified” airborne mold inside the containment area.
• If clearance air testing demonstrates no amplification in the containment area, containment area removal is the final step in the structural remediation process

Can molds damage or destroy the contents of or personal property within a building?

Yes. Mold can destroy and/or damage the contents of a building, commonly known as personal property. Typically, “soft items” such as mattresses, couches and other upholstered items cannot be cleaned because mold spores can become trapped in the surfaces of these items. “Hard items,” on the other hand, such as wood furniture, appliances, and other non-porous goods are typically cleaned by HEPA vacuuming and washing.

Landlord/Tenant

Do I have any rights if the landlord or owner of property which I rent fails to repair or address problems with the property or complaints I have concerning the property?

Yes. The owner and/or managers of a rental property have an obligation to maintain and repair that property. In addition, they often have a contractual obligation to timely and promptly respond to tenant complaints for repairs. The failure of a landlord or manager to properly maintain or repair a rental property may result in causes of action for negligence, premises liability, breach of contract, and breach of the implied warranty of habitability, and nuisance.

The type of damages recoverable from an owner or manager if they fail to repair and / or maintain rental property may include:

• A refund of some or all of the rent paid.
• The cost of repairing the premises.
• The cost of repairing any damage caused by the defective condition or problem, including personal property damage.
• Attorneys’ fees, if appropriate.

Further, if the condition or problem with the rental property injured or harmed the tenant, the tenant may also be able to recover for personal injury damages.

Construction

Do I have any rights if the builder of my home fails to address defects and / or problems with the home discovered after I moved into the property?

Yes. A builder of residential property is required to construct that property in a good and workmanlike manner. If there are problems or defects in the property, typically their repair costs are covered under the one-year homeowner’s warranty provided at the time of the purchase of the property. If the builder fails to honor this one year warranty, it can be liable under a breach of contract cause of action.

In addition, if the home fails to meet the standard of care in the industry with respect to its construction, the builder can be liable under negligence and strict products liability causes of action.

It is important to note that the expiration of the one-year express warranty period does not prevent a buyer of a home from bringing a lawsuit against a builder after the first year of occupancy. In fact, an owner of property can file a lawsuit against a builder for up to 10 years after the home is completed for defects in its construction and/or problems with the home.

The damages which may be recoverable against a builder of the property for defects and/or problems with its construction are typically either: (1) the cost of repair of the property or (2) the diminution or decrease in value of the property as a result of the defects, whichever amount is less. In addition, certain consequential and incidental damages may be recoverable, including without limitation attorneys’ fees if the sales contract so provides.

Real Estate

Do I have any rights if the individuals from whom I purchased my home failed to tell me about defects and/or problems with the home?

Yes. The seller of real property is obligated to disclose any material defects or problems with the property which substantially affect the use, value or desirability of the property. Typically, on the sale or transfer of residential real property, the seller fills out a written document known as a Transfer Disclosure Statement. This statement often details any past or current problems with the property.

In addition, the realtors representing the seller and/or the buyer, the home inspection company, and the pest inspection company can have liability for failing to conduct a thorough investigation and inspection of the property and failing to disclose material problems or defects in the property which substantially affect its use, value and/or desirability.

Insurance

Do I have any rights if my insurance company fails to pay for damage to my home or other property caused by an unanticipated event?

Yes, however, the exact scope of coverage for various losses or damages under your insurance policy is governed by the express language and terms in that policy. Typically, under a homeowner’s insurance policy, there are three basic types of coverage. The first is Coverage A, which covers the “dwelling” or structure of the property. Typically Coverage A for “dwelling” damages is on an “all risk” or “all peril” basis. In essence, this means that all damage to the structure of the property is covered unless caused by a specifically enumerated “peril” or exclusion.

The second type of coverage under a homeowner’s policy is under Coverage C for “personal property.” Coverage C for personal property is on a “named peril” basis. This means that only personal property which is specifically listed in the insurance policy is covered for damage and only under certain conditions. The final basic coverage under a homeowner’s policy is Coverage D for “additional living expenses.” This coverage provides reimbursement for alternative living expenses should one have to vacate their home due to a loss which is covered under the insurance policy.

If an insurance company fails to properly investigate a loss, fails to pay all or a portion of a loss or delays paying for a covered loss under the insurance policy, they may be liable for breach of the insurance contract and breach of the implied covenant of good faith and fair dealing.

The conduct of insurance companies in dealing with homeowners’ claims are governed by various statutes and regulations. The failure of an insurance company to comply with these statutes can result in certain statutory violations. It may be argued that violation of the obligations imposed by the statutes constitutes a breach of the contract and / or a breach of the implied covenant of good faith and fair dealing, entitling a plaintiff (policyholder) to damages.

The types of damages which may be recoverable in a lawsuit against an insurance company are typically the monetary amount of the insurance benefits which were improperly withheld. In addition, plaintiffs may obtain emotional distress damages and the attorneys’ fees incurred as a result of the need to hire a lawyer or to pursue insurance coverage. In certain circumstances, a plaintiff may also obtain punitive damages. These damages are meant to punish and make an example of the insurance company and to deter future similar conduct.

What type of actions by an insurance company can constitute bad faith?

Bad faith is another name for breach of the implied covenant of good faith and fair dealing which is a potential cause is of action against an insurance company arising out of their handling of 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.

What type of insurance coverage exists in my homeowner’s insurance policy?

Under a typical homeowner’s insurance policy, coverage is afforded for four general categories of losses and/or damages. First, coverage may be afforded, depending upon the facts of the loss, for damage to the structure of your property; for example, damage to sheetrock or other building materials as a result of a plumbing leak within the residence.

Insurance coverage under homeowners insurance policies can also be afforded, depending upon the facts of the loss, for personal property or contents damaged by a loss; for example, the cost of replacement or the fair market value of a dining room table or a sofa damaged by water intrusion.

Additional coverage under a homeowner’s policy may include additional living expense coverage. This type of coverage would pay for temporary relocation if you are forced to move from your residence as a result of a covered loss. The duration of additional living expense payments is dependent upon the language of the insurance policy.

The final type of coverage under homeowners insurance is liability insurance coverage. This type of insurance coverage protects you personally if you injure of harm somebody on your property or in certain activities, which you are involved in off of the property.

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