The lawyers at YEN, PILCH, KOMADINA & FLEMMING, P.C., are proud to represent the members of the FOP/ALC. You know us as lawyers who represent you in Internal Affairs interviews, before Personnel Boards and Merit System Councils, in the Superior Courts, Courts of Appeal, and Arizona Supreme Court. You know us as lawyers who have appeared with you in United States District Court and in the United States Court of Appeals for the Ninth Circuit. You know us as lawyers who have defended your careers when your departments wanted to terminate you or suspend you. You know us as lawyers who have fought to defend your rights to wages under the Fair Labor Standards Act and the Arizona Wage laws; and you know us as lawyers who have fought for better wages and working conditions throughout the State. But did you know that our primary mission is about more than just protecting your careers. It's about protecting your families.

We've noticed a recent surge in interest in estate planning. Whatever the reason, we thought that an article showing what estate planning really is might be of interest to our members. It's printed below.

We've also noted a surge in calls about personal injury cases, and in particular automobile collisions. Although many of the calls are about minor traffic accidents where no personal injury is involved, we thought it might be helpful to do a brief article on what to expect following an accident.

From time to time as we see an interest in various legal issues, we'll upload articles to this website. We hope you'll find these articles helpful, interesting, and entertaining.

I'm Going to Die

That's right, I'm going die. Hey, we're all going to die. Hopefully, it's going to be after a long, healthy, productive life . . . but I am going to die. It's not something I want to think about, but I have. It's part of my job. Because if I know what happens after I die, I can better plan for it and hopefully make the transition easier for my family, and I can better advise my clients and friends what to expect.

There's really no easy way to describe the legal consequences of death, because the consequences depend so much on the person's life. Are they married? Single? Children? Do they have children by a previous marriage? Do they have grandchildren? What's their net worth? What kinds or types of property do they own? Do they own property in other states? In other words, an estate plan, unlike a cheap baseball cap, is not a "one size fits all." It's why these "will kits," stationary store Wills, and living trusts being marketed by some companies in seminars, postcards or door-to-door solicitations, are not always right for everyone. In fact, many of these mass marketing schemes are actually scams to gain access to your financial information. As the State Bar of Arizona recommends, when being pressured to buy one of these so called "estate plans," "beware!"

So anyway, to get a glimpse into what may happen after we die, let's consider the following scenario that may have some elements typical to others.

John and Helen have been married four years. Together they have a beautiful infant daughter named Lily. John's first wife, Cruella, is really pretty nice though John insists she is "evil." Notwithstanding this "evil" blood, John and Cruella have a delightful son, Abel, age 12, and another son, Cain, age 18. Cain is a guitarist in a rock band and although they never have any bookings, he always seems to have plenty of money. Hmm?

John and Helen live in a nice home in Chandler which John has in his own name. Helen has a summer home on Coronado Island which she inherited from her parents. Like I said, John and Helen have only been married four years so they're still in love. They've decided they will change title to their homes so they are held in joint tenancy with rights of survivorship. In other words, if something were to happen to Helen, her California home would go to John, and if something happened to John, his Chandler home would go to Helen. Unfortunately, John and Helen were "going to" change title but they just haven't gotten around to doing it yet.

John and Helen have a pickup truck and a car, a boat, and some bank accounts and their estate looks like this on paper:

Property Description	Value	Money Owed/Liens	Equity
Real Estate - Chandler Home	$200,000	$50,000	$150,000
Real Estate - California Home	$800,000	-0-	$800,000
Personal Property - Pickup Truck	$20,000	$15,000	$5,000
Personal Property - Car	$10,000	-0-	$10,000
Personal Property - Boat	$5,000	-0-	$5,000
Cash, Bank Accounts	$30,000	-0-	$30,000
Total Equity			$1,000,000

Sadly, John and Helen are returning from a weekend getaway when a tanker truck loaded with fresh milk rolls over, crushing their car. Helen dies instantly and John lingers for two weeks before he too passes on. After John's funeral, his sister comes into my office with a big box of papers and lots of questions. Here are just a few.

(1) Who are John's and Helen's heirs? And in what percentages will they receive the property?

(2) Who will be responsible for gathering the property, making decisions about whether it should be sold and deciding when the property should be distributed to the heirs?

(3) Because Lily and Abel are minor children, who will manage their share of the estate?

(4) Who will take care of Lily and Abel?

(5) Who pays the bills and with what?

(6) How long will all this take?

(7) How much will all this cost?

The answers to these questions depend on whether John and Helen had a Will, a Trust, or whether they "just never got around to it." Here are a few possible scenarios.

Scenario No. 1 - John and Helen have no Will or Trust. They "just never got around to it."

Who are the heirs? Because Helen passed away two weeks before John, John is a surviving spouse and will inherit everything that Helen owned. All of her property, including the California home, would therefore pass to John. When John died without a Will, John's heirs are Lily, Cain and Abel. Each will probably be entitled to one-third of the million dollar estate (plus a portion of the wrongful death monies recovered against the dairy company on the wrongful death action brought by the personal representative of the estate).

Who will be the Personal Representative? Because there is no Will, this estate will come under Arizona's laws of "Intestate Succession" which specify how property passes when there is no Will. Under these rules, the person who may be appointed by the Court to manage the estate is called the "Personal Representative." The priority for appointment is first the surviving spouse, followed by any adult heirs, then any creditors of the estate. In this case, there is no surviving spouse, and Cain is the only heir who is an adult. So Cain, if he so chooses, has "first dibs" to be Personal Representative and administer the estate. Won't that be lovely!

Who will manage Lily and Abel's share? Because Cain is 18 years of age, the law considers him to be an "adult" so that he can manage his own property. Yep, he'll get his inheritance of more than $300,000.00 (excluding the wrongful death settlement) outright. Abel's mother, Cruella, will most likely be appointed as guardian and conservator for Abel and will be entitled to manage his property. And Lily's care will be the responsibility of whoever is the most appropriate. If John's and Helen's brothers and sisters fight over it, the court will have to decide who will care for Lily and manage her property.

Who pays the bills and with what? As Personal Representative, Cain will be responsible for paying the bills out of a bank account opened for the estate and into which John's and Helen's monies will be transferred.

How long is this gonna take? Cain, as Personal Representative, will have the responsibility of publishing a notice informing all creditors to whom John and Helen owed money that such creditors have four (4) months in which to submit their claims or bills to the estate. If bills are not submitted within that four (4) month period, they may be barred. Cain will also have to decide whether to sell the homes and vehicles. If he decides to sell the houses, the estate will most likely have to remain open so that a broker can be hired and Cain can sign the contracts, escrow documents and file income and estate tax returns. So the estate may be open for a year or more.

How much is all this gonna cost? Well, it depends whether there are any disagreements along the way. Whoever is appointed guardian and conservator for Lily may want the court to decide whether Cain is fit to take on the responsibilities of Personal Representative. Abel and Lily, through their guardians and conservators, including Cruella, may want to challenge Cain's decision to sell the California property. (By the way, there had to be a separate probate to transfer Helen's property to John. More time. More money.) Depending on Will challenges, the fees are probably going to be somewhere between $3,000.00 to $30,000.00. Oh yeah, we almost forgot: Estate taxes. IRS is entitled to an estate tax on anything in an estate over $700,000.00. When Helen died, she had a California residence worth about $800,000.00 that went to John. If $700,000.00 of John's million dollar estate is exempt from tax, then John's estate would only have to pay 37% of $300,000.00. So there would be an estate tax of a little over $100,000.00!!! I don't think John and Helen would like this.

Scenario No. 2. John and Helen bought a form Will on the internet for about $30.00 and simply left everything they had to one another.

Same result as in Scenario No. 1. Because John and Helen died at about the same time, the fact that they left all of their property to one another doesn't really change the result.

Scenario No. 3. John and Helen went to a seminar, or met with a Trust salesman in their home. They had a Trust prepared that provided that John's sister would manage their estate after John and Helen were gone. Because John and Helen wanted to prevent Cain, Abel, and Lily from getting a lot of money at age 18 and blowing it on cars and who knows what else, the Trust said that Cain, Abel and Lily would get their respective one third shares upon the sooner of graduating from a University or their 28th birthdays. It also said that if the kids needed any money sooner, the Trustee (John's sister) had the discretion to pay up to $30,000.00 per year toward tuition or living expenses which the Trustee, in her discretion, felt necessary and appropriate. Pretty neat, eh? Unfortunately, John and Helen never got around to "funding" this Trust by transferring the houses into it. Nor did the Trust salesman tell them they needed any Wills as part of the Trust package. So guess what? – same results as Scenario No. 1!! Yep, all that planning, all that expense, and Cain still gets to administer the estate and each of the kids get their money at age 18.

Scenario No. 4. John and Helen hired a qualified lawyer who prepared a Trust, that did everything the Trust in Scenario 3 did, and more. This Trust was written in a way that allowed John and Helen to take advantage of each of their $700,000.00 exemptions from estate tax. By doing this, John's and Helen's estates would be able to avoid any estate tax and save more than $100,000.00!

Their lawyer also prepared the deeds transferring their homes into the Trust, and just in case John and Helen failed to properly transfer everything they acquired during their lifetimes into the trusts, their lawyer prepared "pour-over Wills" by which such property would "pour" into their Trust upon their death. John and Helen weren't excited about having to pay the lawyer $1,500.00 to $3,000.00 for his work, but considering the reduced risk of litigation over who would be Personal Representative, whether the homes should be sold, etc., and the $100,000.00 or more in estate tax savings, – not to mention their peace of mind – it seemed like money pretty well spent.

Moral of the story:

We all plan for a lot of things, but it doesn't necessarily mean it's going to happen right away. I'm planning for retirement, but if it ever happens, it's going to be a long time from now. Death is the same way. Just because we plan for it doesn't mean it's going to happen anytime soon.

Look, I know I'm going to die, we're all going to die. Hopefully, none of us will die before we are really, really old. Whenever it happens, it's probably going to be sad . . . but with a little thought, and a little planning, it doesn't have to be a tragedy for our families.

The FOP/ALC - it's about protecting your careers . . . and a lot more.

The anatomy of a personal injury case.

It's a complicated world out there. We try and live our lives carefully and we try to teach our kids to be careful, but sometimes bad things still happen:

• We're driving through an intersection on a green light when we get "T-boned;"
• We're stopping for a pedestrian in a cross-walk and we get rear-ended;
• We're just walking through the park when we're attacked by a dog.

It's not our fault, but we still have medical bills, need our cars repaired, lost wages, and . . . we hurt. What can we do?

As lawyers, we see these kinds of cases every day. What can you do? Sometimes surprisingly little, sometimes a lot. Here's what we look for:

Who's really at fault?

Fault. Liability. It's really the first question in any personal injury case, and as simple as the issue may seem at first glance, it can become much more complicated. So you were driving through the intersection on a green light when you got "T-boned." Can you prove it? Did the other driver admit this to the police? Were there other witnesses? Any red light cameras? Will the other driver argue that you were partly at fault? Were your headlights on? Were you driving in excess of the speed limit? Should you have been able to see the other driver entering the intersection in time to avoid the collision? Did you make any statements at the scene to the other driver, witnesses, or police? e.g., "I was on the phone and didn't see you," "I was bent down picking something up off the floor and when I looked up and there you were," "Oh my gosh, I feel horrible, it's all my fault!" If it appears that it was entirely your fault, then it's really a case that should and will be defended by your insurance company. In that event, it's as simple as contacting your insurance company, notifying them of the facts and then simply cooperating with their defense of any claim which may be brought against you.

If, on the other hand, it was not in any way your fault, or you were only partly or "comparatively" negligent, then you will want to make a claim against the other driver for recovery of your damages.

In that case, your lawyers will want to immediately start gathering evidence, including the accident report, witness statements and, if necessary and appropriate, they may want to hire an accident reconstructionist to document the scene and later testify about their findings on liability.

What can I recover?

Once we've decided that you are or may be entitled to recover some damages from the other driver, we will first look at whether there is a source from which to recover your damages. In other words, did the other driver have liability insurance? Was the other vehicle owned by a corporation? Do you have uninsured motorist coverage on your own insurance that might cover you if the other driver was not insured. Do you have underinsured motorists coverage on your insurance that might supplement any insurance the other driver had? Were you on the job at the time so that Workers Compensation may cover some of your damages?

We also need to determine any deadlines for filing claims or lawsuits. These deadlines vary, depending on the nature of your claim and the party against whom you are making the claim. Ordinarily there is a two-year statute of limitations for negligence. In other words, you must file a lawsuit against the wrongdoer within two years from the date of the injury, otherwise, your claim may be forever barred. This statute of limitations, however, can be shortened in some cases. For example, if the defendant is a governmental agency, you may have to file a claim within 180 days from the date the claim accrues. If you were on the job at the time of your injury and you wish to file a lawsuit against the other driver, you must do so within 12 months from the date of the injury. After the first year, you will have to get permission from Workers Compensation to file that suit.

Once it has been determined: (1) that the other party is, in fact, at fault; (2) that there is a source from which you can recover your damages; and (3) the deadline for filing any claims, it's time to try and figure out your damages, i.e., what you are likely to be able to recover.

Damages are generally broken into two categories and sometimes three: property damage, bodily injury, and punitive damages.

Property Damage:

Although property damage seems like it would be the easiest element of damages to calculate, this is not always true. The first determination is who will pay for the damage to your vehicle. Will the other driver's insurance pay for it? Are you entitled to a rental car while your car is being repaired? Is your car damaged so badly that it should be declared a total loss? What if the insurance company will not declare it to be a total loss? Must you take a vehicle back that has been repaired and that may therefore have a diminished resale value? If you don't rent another vehicle because you have an extra vehicle, are you still entitled to recover money that you would otherwise have had to pay to rent a car? Were there any personal effects in your vehicle that were damaged? Can you elect to have your car repaired at a garage of your choosing or must you go to one authorized by the insurance company? Do you have a choice in having your insurance company handle the repairs, and if you are required to pay a deductible, are you entitled to recover that from the other driver's insurance?

The overly simplified answer to these questions is that you do generally have the option of having your insurance company pay for all of the repairs and seeking reimbursement of your deductible from the other driver's insurance. Because your own insurance company has certain responsibilities to you as part of its contract with you, they are generally easier to work with. The down side, of course, is you may have to wait some time to recover the deductible that you paid your own insurance company.

Bodily Injury Damages:

Although one might expect that recovering damages for "pain and suffering" might be a little more difficult, you wouldn't think recovery of your medical expenses would be very involved. Generally this is true. But remember that insurance companies make their money by accepting premiums and then paying out as little as possible on claims. Oftentimes insurance adjusters will argue that the treatment you received was neither necessary nor appropriate to your injuries. They will argue, for example, that for an injury that has been diagnosed as merely a "soft tissue" injury not involving any boney abnormalities, it's unnecessary to go to a chiropractor or physical therapy two days a week for three months. The company may even find doctors who are willing to come in and testify that the care you received was not medically necessary. The insurance company may also argue that the symptoms you've experienced are not related to the collision but are really a result of injuries from past mishaps. Again, they may bring in doctors to testify as to their opinion that your symptoms are unrelated to the accident in question.

And what about lost wages? Did you miss work as a result of the accident? The insurance company may look at your work record and history of absenteeism in arguing that your missed work is not related to the accident. Once we get through all of these hurdles, then we finally get to the measure of damages for which there is rarely any solid method of calculation: "Pain and suffering." It's at this point that lawyers can use some of their creativity to try and enhance the client's recovery. What effect did this injury have on your life? Have you been unable to care for your children or participate in their activities because of your injuries? Have you missed educational opportunities or job promotions? Have you had to forego recreational activities, hobbies, such as golf, tennis, hiking, mountain biking? Have you had to hire anyone to do personal chores that you would have otherwise done yourself, such as yard work or pool maintenance? Have you been unable to cook or clean, carry an infant child, sit at work for extended periods of time or simply sleep through the night. What have similar cases settled for? What have juries awarded other claimants with similar injuries? This is the area where recoveries can be maximized with a creative presentation of a case.

Punitive damages:

Sometimes people do things that are more than just merely negligent. In some cases, our society is so offended by them that we want to deter such conduct. In those unusual cases (and they are unusual) a court may award punitive damages. The purpose of punitive damages are to punish the wrongdoer and deter others from similar conduct. In some cases, punitive damages have been awarded against intoxicated drivers. In one such case, the court awarded punitive damages against a driver who consumed at least ten beers within a one-hour period immediately prior to the accident. At the time he was drinking these beers, the driver also took twenty milligrams of Valium and he was driving recklessly and speeding in the middle turn lane at the time of the collision. In that case, the court said that even though the driver may not have known that his conduct was so egregious that it created a substantial risk of harm to others, it was sufficient that the driver should have known the nature of his conduct. After finding that punitive damages were appropriate, the court then looked not only at the wrongdoer's conduct, but at his wealth and, in addition to the property damage and bodily injury damages, awarded punitive damages in the amount of $100,000.00.

CONCLUSION

So you've been in an accident. It's not your fault. You've already called your doctor (that's why you have one). Have you called your lawyers? Maybe you should . . . isn't that why you have them?

The FOP/ALC . . . it's about protecting your careers . . . and a lot more!

1. The information in this article is published as a service to clients of YEN, PILCH, KOMADINA & FLEMMING, P.C. It is meant only to inform, not to advise anyone on a specific legal issue. No one should attempt to apply or interpret any law without the advice of a licensed attorney. Bob Yen is a founder and shareholder with the law firm of Yen, Pilch, Komadina & Flemming, P.C., and has been a practicing lawyer for 20 years.