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Personal Injury Lawyers
You might assume that if a property is private, the owner has full rights to use and maintain it as he or she desires. This is not necessarily the case. Even owners of private properties have basic duties to keep the premises free from hazards. If you suffer an injury on someone’s privately owned property, the owner may be liable for your damages so it is always a good idea to speak with a qualified Bakersfield premises liability lawyer. Here is an overview of some possible legal options you have after an injury on private property.
Sue the Property Owner
A slip and fall, accidental drowning, criminal attack, or dog bite on private premises may give the injured victim grounds to sue the property owner. Your right to sue depends on your status as a property visitor or guest. There are three guest statuses, each with different duties the property owner owes:
- Invitee. If the owner invites guests onto private property for reasons of his or her own, such as for a yard sale, barbecue, or pool party, the guests are “invitees.” As such, they are owed the greatest standards of care. The property owner must keep the premises free from known hazards, check for unknown hazards, and post warning signs if necessary.
- Licensee. Licensees are people who enter private property for their own reasons. Examples include service teams and salespeople. Private property owners don’t owe licensees as many duties of care as invitees. They do not have to inspect properties for unknown hazards.
- Trespasser. If you trespass on private property and suffer an injury, you most likely do not have a case against the property owner. Owners don’t owe trespassers any duties of care, other than a duty not to cause harm to the trespasser. If the trespasser was a child, on the other hand, the property owner has a duty to keep the premises safe.
To sue the owner of a piece of private property, you need proof that the owner owed you a duty of care, breached this duty, and that this breach caused your injuries. You must demonstrate that your accident and injuries would not have happened were it not for some act of negligence on the property owner’s part.
Sue the Business Owner
A commercial property can still be privately owned. If you suffer an injury on a commercial property instead of a residential property, you may be able to sue the business owner or corporation. The laws in most states hold commercial property owners to very high standards in terms of maintaining safe premises.
Since guests will be invitees, commercial property owners must take care to repair known hazards, such as uneven curbs or defective staircase railings. They must also check for hidden hazards, such as faulty electrical wires in the walls. Failure to maintain a safe business, resulting in guest injury, is most likely grounds for a suit.
Call an Attorney
Laws regarding home and business owners’ duties of care in regard to safe properties vary by state but keep the same general rules. If you’ve been injured on privately owned property, retain a reliable Bakersfield attorney experienced in premises liability cases. You will need to prove that the owner owed you a duty of care, but failed to act within the accepted standards. Negotiations with insurance companies and owners of private property can be difficult. A good attorney can make the process simpler and more rewarding.
Hotels owe very high standards of care to guests. Hotels guests are “invitees” by law, or visitors expressly invited to the property for the hotel’s benefit. As invitees, hotel guests have the right to an environment that’s free from hazards. It is every hotel’s duty to repair known dangers, search for unknown ones, and warn guests of risks that may not be obvious. Any breach of these duties, resulting in guest injury, may be grounds for a personal injury lawsuit so speak with an experienced Bakersfield premises liability attorney to learn more. There are four main elements you need to sue a hotel in Kern County:
Common accidents that can happen at hotels are slip and falls, elevator/escalator accidents, swimming pool accidents, food poisoning, parking lot car accidents, and acts of violence. If you suffer injuries after any type of incident at a hotel, start looking into your potential rights to sue. The elements needed to sue a hotel start with proving the hotel’s duty to you. This is typically an easy thing to prove since hotels automatically owe all guests and property visitors (other than adult trespassers) basic duties of care. These duties include:
- Disclosing health and safety hazards
- Protecting guests’ privacy
- Keeping a reasonably safe premises
- Not discriminating against guests
- Taking adequate security measures
The hotel’s duties of care to you in a particular accident may depend on the circumstances surrounding your injuries. Say, for example, that someone mugged you in the hotel’s parking lot. If the courts deem that a history of crime at the hotel or other factor is enough for the hotel to have foreseen the attack, the hotel may be guilty of negligence if it didn’t take reasonable steps to prevent the mugging, such as hiring a security guard. If, however, the courts rule that the hotel didn’t have reason to foresee the attack, the hotel may not have owed you the duty to hire a security guard.
Breach of Duty
Breaches of duty can take many shapes and forms on hotel premises. A “breach” is any act or failure to act that goes against accepted standards of care for the industry and situation. Proving a hotel’s breach of duty or negligence may take an investigation of what happened. As an injured party, you must prove that the defendant acted in a way that a reasonable and prudent party would not have in similar circumstances, resulting in your accident.
Injured hotel guests must prove that the hotel’s breach of duty of care was the actual and proximate cause of the accident in question. The “proximate cause” of an accident is the primary cause. It might not be the initial event that started the accident, but the action that produced the foreseeable negative consequences. The injured party must show that his or her injuries resulted directly from the proximate cause (the cause without which the accident would not have occurred.)
Finally, the victim of a hotel accident must have real, compensable damages to have grounds to sue the establishment. If you did not suffer damages such as a personal injury, the wrongful death of a loved one, property damage, pain and suffering, medical bills, or lost wages, the hotel will not owe you anything, even if an accident happened. You must have suffered some kind of damages to have grounds for a lawsuit. Talk to a Bakersfield lawyer for more information about filing a suit against a hotel.
Sometimes, all your vehicle needs after a collision are repairs and some TLC. Other times, the crash can make your vehicle completely undrivable. If a recent car accident in Bakersfield totaled your vehicle, you may be at a loss for what to do next. You need an interim vehicle to drive to work, and you might not have the funds to purchase a new car – especially if you’re also paying for medical bills. Here’s what you need to know about accidents that total your vehicle.
What Is A “Total Loss”?
After a crash, call your insurance company to report what happened. Your insurer will schedule an investigation of the accident, as well as an inspection of your wrecked vehicle. After the inspection, your insurer will determine the extent of vehicle damage. The company uses the Total Loss Formula to make this judgment. Basically, your insurer will compare the cost of repairing your damaged vehicle (plus the reduction in resale value and other expenses) against the Actual Cash Value of the car prior to the crash. If the calculation surpasses a certain threshold, the company will say that your vehicle is a total loss.
Get a Rental Vehicle Through Your Insurer
While you wait for your vehicle inspection – and potentially start shopping for a new car – you need something to drive. Most insurance policies will cover the costs of a rental car after a crash. Ask your insurance agent if this is the case with your policy. If you do receive rental coverage, ask about the types of vehicles you may rent at no charge. In general, an insurance company will cover the costs of a car that’s similar to your own.
Will Your Insurer Cover the Costs of a New Vehicle?
If you receive a total loss determination, your amount of coverage will determine your next move. Collision coverage and comprehensive coverage are the two policies that help pay for totaled vehicles. Your insurer may offer a settlement award that covers the cost of your lost vehicle if you have this coverage. The amount you receive will depend on the coverage plan you have.
Accepting a settlement for the calculated value of the vehicle means that you generally give up your right to money from selling the totaled vehicle at a scrap yard or selling it as a salvage titled vehicle. You have the option to deny the settlement and instead get your vehicle back, at which point you can decide what to do with it and keep any money you receive from scrapping, trading, or selling it.
If you total a vehicle you were still making payments on, your insurance company will make the check payable to you and the lender. The lender will keep what you owe him or her, and you can keep anything remaining. If you don’t have collision or comprehensive insurance coverage, you may end up paying to replace your vehicle out of pocket. In these cases, speak to a qualified Bakersfield attorney. If someone else caused the wreck, you may be able to secure compensation for the value of your totaled vehicle through a personal injury lawsuit. A lawyer can help you learn your rights after a crash that totally destroys your vehicle.
It is an unfortunate reality that smaller, lighter passenger vehicles must drive alongside large, heavy commercial trucks to fuel America’s economy. Big rigs can weigh up to 80,000 pounds, while the average passenger vehicle weighs just 3,500 pounds. The immense size difference between the two can lead to major damage to the smaller car and its passengers in a collision. The State of California strives to reduce the number of truck accidents on its highways by enacting truck lane restrictions. Learning the law can help you stay as far away as possible from large trucks when on California’s highways.
Truck-Only Lanes in California
Very few truck-only lanes exist throughout the country. In most states, large trucks and passenger vehicles must intermingle, but trucks must simply stay out of the left lane on certain highways. California, however, has two truck-only lanes in existence and more potentially on the way. As of now, the two lanes that only trucks may operate in are as follows:
- Northbound and southbound 1-5 in LA County at the State Route 14 split. The truck lane begins as two roads, northbound at LA County postmile C043.925 and southbound at postmile C043.899. Both roads meet at postmile C044.924. These trucks lanes separate slower-moving large trucks from the general traffic that moves faster. The roads run 2.426 miles northbound and 2.452 southbound. This truck-only road has been in existence for about 30 years.
- Southbound I-5 in Kern County at the State Route 99 junction. On Route 99 near the Grapevine, postmile L000.629, a truck-only lane begins. The lane continues for 0.346 miles until I-5 at postmile R-15.492. The point of the lane is to allow large trucks to merge farther downstream of where other vehicles merge between I-5 and State Route 99. This truck-only lane could potentially prevent collisions between trucks and smaller vehicles in an already difficult merge area.
All large trucks must travel in truck-only lanes when they arise. There are black and white highway signs indicating where truck-only lanes begin and end. These are enforceable signs that all truck drivers must obey. Failure to use truck-only lanes when available can result in fines. Passenger vehicles may technically drive in truck-only lanes, but green highways signs encourage them not to do so. Since the signs are green, they are not enforceable.
Large Trucks in the Left Lane
California sees a particularly large number of commercial trucks on its roadways. For this reason, the state has enacted somewhat strict rules when it comes to large trucks on the highway. California is one of few states with a law that prohibits “motor trucks, truck tractors with three axles or more, and truck tractors pulling vehicles” from driving in the left-hand lane while on the highway. These slower-moving vehicles must remain in the right-hand lane or the second-right-hand lane if on a highway with four lanes of traffic moving in the same direction.
If a large truck disobeys lane restrictions, the driver could receive fines of up to $250 for a third offense within one year. Any slower-moving vehicle, regardless of size, must use the furthest right-hand lane while driving in California, except when passing or making a left turn. The California Highway Patrol enforces truck lane restrictions and will stop large trucks should they disobey the law.
You’re driving down the 58, maintaining the speed limit in the far-left lane. You’re going to be just on time for work. Suddenly, a large commercial truck merges into the lane in front of you. You hit your brakes to accommodate the slower speed and are annoyed because now you’ll be late for work or have to pass the big rig using the middle lane. More importantly, a truck driver who broke California’s roadway laws has put you in a potentially dangerous position. Here’s what you need to know about trucks in the left lane in The Golden State. For more information, speak with an experienced Bakersfield truck accident lawyer.
Rules of the Road for Truckers
California Vehicle Code Section 21654 states that any vehicle traveling on a highway at less than the average speed of moving traffic must drive in the right-hand lane, as close as possible to the right-hand edge or curb. The only time a slower-moving vehicle can leave the right-hand lane is to overtake and pass a different vehicle traveling along the same directional path, or if preparing to make a left-hand exit or turn. This law applies to all large trucks (those with three axles or more).
In California, motor trucks, truck tractors with at least three axles, and truck tractors pulling another vehicle must use designated truck lanes at all times if they exist. They cannot come out of designated lanes unless passing or turning. If no designated lane exists on the roadway, the truck must remain in the farthest right-hand lane, or the second-to-right-hand lane if the highway has four or more lanes of traffic moving in the same direction. To pass, a truck must use the designated lane, right-hand lane, or second-to-right lane.
If a large truck drives in the left lane, the driver has broken a California roadway law and may face penalties. For a first offense, the driver may face fines of up to $100. If the driver receives a second offense within one year, the fine is up to $200. For a third offense in one year, the fine increases to $250. These are steep fines compared to similar laws in other states. The only evidence law enforcement needs to charge a driver with this infraction is that the vehicle was traveling at a slower speed than the rest of traffic in the same direction and was driving in the left-hand lane.
Dangers of Trucks in the Left Lane
There is a reason that all highways use the rule that faster-moving vehicles use the left lane, and slower-moving vehicles use the right lane. On a multilane highway, dividing the vehicles based on speed increases the safety and efficiency of the road. Drivers can easily become frustrated if they’re stuck behind a slower moving vehicle, and the situation could end in road rage.
Too many drivers in the fast lane can create a major highway problem, with sudden and unexpected changes in speed and rear-end collisions. If a large truck merges into the far-left lane, it will slow down traffic and cause other drivers to weave in and out of traffic lanes to pass the truck. This increases the risk of a potentially severe car accident. If you see a large truck in the left lane in California, consider calling Highway Patrol to report the truck and its driver.
As a motorcyclist in California, it’s your duty to know the laws that apply to you and obey them. It’s also your right to stand up for yourself when you know you were following the rules and still ended up in an accident. Having a thorough understanding of California’s motorcycle helmet law can give you confidence and control when you hit the open road and a solid foundation should you need to hire a Bakersfield motorcycle accident lawyer and file a personal injury claim. You’ll know exactly when you were in the right. Here’s an overview of what you should know.
Do You Need a Helmet in California?
Yes. California is one of 19 states that require all motorcyclists to wear helmets. California Vehicle Code Section 27803 states that a driver and any passenger shall wear a helmet that meets federal safety standards when riding on a motorcycle, motor-driven cycle, or motorized bicycle. It is unlawful for a driver or a passenger not to wear a helmet at any time while on a motorcycle in California. The law applies to motorcyclists on rural and urban roads and highways. It is a statewide, universal law that applies to all ages.
“Wearing a safety helmet,” means the helmet must comply with federal laws, and fit snugly on your head. Look for the Department of Transportation (DOT) sticker when purchasing a helmet, or another indication that the manufacturer complied with federal safety standards in the creation of the helmet. The helmet must be of a size that fits the wearer’s head securely, without excessive movement, and fastened with helmet straps. The law does not apply to those on fully enclosed three-wheel motor vehicles over seven feet in length and four feet in width.
While California’s current law makes it mandatory for everyone to wear a motorcycle helmet, the law could be changing in the future. In 2011, Assemblyman Chris Norby introduced Assembly Bill 695. AB 695 proposes an amendment to the existing motorcycle helmet law, wherein a person who is 21 years or older who has either completed a safety training program or received authorization to operate the vehicle with a class M1 license or endorsement for two or more years would not have to wear a motorcycle helmet. This amendment is currently pending.
Penalties for Not Wearing a Helmet
Motorcyclists and their passengers can face fines and penalties for failing to wear approved helmets while operating in California. The law states that an enforcement officer has the right to either charge the individual with a simple equipment violation or a greater penalty. An equipment violation is a $10 fine with a proof of correction, according to the California Vehicle Code. The California Highway Patrol, however, states that a violation of the helmet law is an immediate safety hazard and is therefore not correctable.
If the officer were to follow the CHP’s guidelines, you could face up to $250 in fines and one year of probation. It’s largely up to the arresting officer, as the laws are unclear. Avoid any penalties and protect your personal safety by wearing a motorcycle helmet in California. It’s currently the law, and it could save your life.
If you resolve your personal injury claim with a settlement between yourself and the other party, first, enjoy your victory. Then, think about the large sum of money you are about to receive. You will have to pay your attorney’s fees and any court costs in most cases, on top of using the settlement to pay for your medical bills, lost wages, and other damages. Finding out you also have to pay taxes on your settlement could really make the glow of victory dim. Luckily, personal injury settlements are largely tax-free.
Federal and State Settlement Taxation
As a general rule, neither the federal nor the state government can impose taxes on the proceeds you receive from a personal injury claim. Claim proceeds are more or less tax-free, whether you settled your claim or went to trial to get a jury verdict. The federal Internal Revenue Service (IRS) and the California state government cannot tax settlements in most cases. There are, however, exceptions to this rule. You may face taxation on the following:
- Breach of contract settlements or awards. If a breach of contract caused your injuries or physical illness, and the breach is the basis of your lawsuit, the government has the right to tax any damages you receive.
- Punitive damages. Punitive damages, or those awarded for the sole purpose of punishing the defendant, are taxable in California. Your Bakersfield attorney will ask the judge or jury to separate the verdict or settlement into punitive and compensatory damages. That way, the IRS will only tax you for the punitive damages.
- Lost wages. This economic damage award is typically taxable since the government sees it as money you would have had to pay taxes on were it not for the injury. Since your normal wages would have been taxes, your lost wage award will be as well. The IRS has the right to impose the taxation of your award as it sees fit.
- Interest on judgment. If the court adds interest to the verdict for the amount of time the claim has been pending, the government may tax this portion of your award or settlement. For example, you may have to pay taxes on interest you receive for a claim you brought in 2014 that did not resolve until 2017.
Keep in mind that the only non-taxable claim settlements are those that arise from physical injury or illness claims. If your lawsuit deals with emotional distress or employment discrimination, the government will tax your settlement. You may be able to elude taxation if you can prove even the smallest amount of physical injury. A lawyer may be able to help you with this burden of proof and ensure you receive a non-taxable settlement as much as possible.
How to Pay Settlement Taxes
If part or all of your settlement is taxable, the government will tax it as though it were part of your ordinary income. You will have to list all applicable awards on your annual tax return statement and pay tax on in the amount of your personal income tax rate. Work with a tax specialist if you have a particularly large or complex personal injury settlement. Your attorney can also help you understand the specific tax repercussions of your settlement or jury verdict.
California is a fault state when it comes to car accidents, meaning the injured party must prove the other party’s fault before that person’s insurance will cover damages. After many car accidents in California, injured parties will submit claims to insurance companies other than their own. This might be the case, for example, if the other party caused the crash. Filing a claim with an insurer other than one’s own is a “third-party claim.” It is a common type of claim that leads to a slightly different insurance process.
The Third-Party Claims Process
When you’re involved in a car accident in California, your first instinct may be to call your own insurance company to report the crash. If you weren’t at fault for the accident, however, you should first contact the insurance company of the at-fault driver or other individual or entity. This is why it’s important to always stop and collect the information of the other driver after an accident. The other driver may not have admitted fault at the scene, but, if you believe he or she is to blame, contact the driver’s insurer before contacting your own.
Report the accident to the other driver’s insurer. Stick purely to the facts of the case, and give short answers to the representative’s questions. The insurance agent assigned to your case, known as the claims adjuster, will have the goal of getting you to settle for as little as possible. The adjuster may offer a settlement within the first one or two phone calls if the other driver was at fault. Resist the urge to accept these offers. First, talk to a Bakersfield car accident attorney about the real value of your car accident claim.
When you make a third-party insurance claim, the company will try to save money by offering a low-ball settlement award. The company may tempt you to take the settlement, saying that it’s a fast way to get your hands on the money. However, your injuries and property damage could garner a much greater verdict or award in a personal injury claim. It’s typically wise to reject at least the first offer but talk to your attorney first. A car insurance lawyer can help you choose the best path for your unique wishes, and negotiate with a third-party insurer.
Tips for Third-Party Insurance Claims
Be wary when talking to insurance adjusters over the phone. The insurance claims adjuster works for the company, not for you. An adjuster often sees several cases per month. He or she will likely know less about your claim than you do. Keep your answers short when conversing with the other driver’s insurance company. Stay truthful, but do not offer up information that the adjuster does not request.
Do not agree to record any statements over the phone. The insurance company can use what you say against you. Talk to a lawyer if you have any doubts about dealing with insurance claims adjusters. If the other driver’s insurance company denies your claim, you can begin the appeals process. Study the policy in question to learn how to appeal the company’s decision. The appeals process can be complex and often comes down to something in the policy that bars you from recovery in certain scenarios. Retaining an insurance attorney can help you navigate these issues.
Taking photographs of the scene of a car accident is an excellent way to preserve crucial evidence for your claim. It is hard to argue against hard evidence that a photograph presents. Thanks to camera phones, almost everyone has the ability to take photos of motor vehicle accidents directly after they happen. Follow these tips for taking photographs that will best serve your case, should you need them for a subsequent insurance claim or personal injury lawsuit.
Take Photos, Not Video
Call the police and report the crash. While you wait for cops to arrive, start taking pictures. It won’t hurt to also record a video of the scene, but photographs are better for capturing fine details. Investigators can zoom in on photographs in high definition, and get a clear view of small details such as the tread on vehicle tires or brake marks on the roadway. Take as many photographs as you can, and save them to your digital camera or cell phone.
Turn on the Time Stamp Function
Find your camera’s time stamp function and turn it on before taking any photos of the scene or of injuries. This will serve as proof of the date and time you took the photos, which is important for creating a timeline of events. It can also prove you took photos the day of the accident, in case the defense wants to argue you may have returned to the scene at a later date to snap photos when elements of the environment had changed.
Photograph Wide and Close Shots
Take pictures of everything you think might be important to a future crash investigation. This includes all vehicles and properties involved, any injuries, the roadway, street signs, marks or defects in the road, the weather, and anything else that may have contributed to the crash. Take wide-angle shots of the entire scene to capture an image of the setting. Get close-ups of property damage and injuries. The more photos you take before police arrive and begin dismantling the scene to clear the road, the better.
Take Photos of Participants
Get photographs of all other drivers and passengers involved, as well as any bystanders and witnesses. Photograph the police officers, paramedics, and ambulance. Get a shot of anyone going onto a gurney. Documenting who was on the scene of the accident can help you connect faces with witness statements later. This can prevent confusion with identities of witnesses and parties involved.
Photograph Injuries as They Evolve
Snap detailed photographs of your injuries the day they occurred but continue taking photographs as you heal. Take photographs in the days after the accident, capturing latent injuries such as bruising and swelling that didn’t appear right away. Keep careful track of your recovery process to serve as evidence of damages later. Store photos of your injuries alongside your medical records and hospital bills, in a case file.
Return to the Scene
Return to the scene of the crash if necessary, to take photographs with a better camera. You may see things you didn’t in the chaotic aftermath of the crash, such as debris by the side of the road or damaged objects. Collect photos of any remaining evidence and put them with the original photographs you took. Preservation of photographic evidence is just as important as taking the photos. Backup all your photos onto a computer or print out paper versions. Take your photos to a Bakersfield car accident lawyer as soon as possible.
An acquired brain injury (ABI) is any damage or trauma the brain sustains after birth, for non-congenital reasons. ABIs include traumatic and non-traumatic brain injuries. A traumatic brain injury (TBI) occurs when the brain sustains sudden physical damage, as in a blow to the head or a puncture wound like a gunshot. A non-traumatic brain injury, on the other hand, can happen from infection, illness, brain tumors, or loss of oxygen or blood to the brain. ABIs are common in many accidents, including car accidents, slip and falls, and accidental drowning.
Causes and Effects of ABIs
Acquired brain injuries can occur as a result of catastrophic accidents or illnesses. Traumatic brain injuries are a leading cause of death and permanent disability in the U.S., accounting for about 30% of all injury deaths. People who survive traumatic ABIs often live with the effects for days, weeks, or the rest of their lives. No two brain injuries are the same. Each victim will suffer different symptoms and short- or long-term effects. Effects may include:
- Cognitive difficulties
- Persistent headaches
- Fatigue and/or insomnia
- Tremors or seizures
- Physical disabilities
- Trouble with speech
- Sensory disorders
- Loss of consciousness
- Behavioral changes
- Permanent disability
- Coma and/or brain death
Falls were the leading cause of acquired brain injuries in 2013, the most recent year data available. Falls caused more than half (54%) of TBI-related hospitalizations and deaths among children up to 14 years of age. The second-leading cause of ABIs was objects striking the head, followed by motor vehicle crashes. Data shows that risk of sustaining a TBI is highest in people 75 years and older.
Who Is Liable for an Acquired Brain Injury?
Sometimes, there is a party at fault for causing someone else’s acquired brain injury. Many types of personal injury claim have involved ABIs, including those relating to medical practice, premises liability, product liability, and negligence. Talk to a Bakersfield brain injury attorney to find out if you have grounds to file a lawsuit after sustaining an ABI at home, at work, or on the road. Potentially liable parties could include:
- An individual. If a driver, an independently contracted doctor, a property owner, criminal, or a coworker caused your injury, you could bring a claim against him or her as an individual. Often, however, individuals may not have the means to pay an award. A lawyer will look for other parties, including insurance companies, who may also be liable.
- A company. If an on-duty employee caused your injury, you could have a claim against his or her employer. You may also have a product liability claim against a manufacturing company if a defective product caused your ABI. All businesses have insurance that may step in to pay your award should you have a successful case.
- The city. The Bakersfiled government could be liable for your ABI if you sustained the injury because of a government employee, while riding in a city-owned vehicle, or because of a defect on a city-owned property. It is possible to sue the government in California, but strict rules apply. Speak to an attorney for help.
Every ABI case is unique. There is often more than one defendant liable for causing someone’s acquired brain injury, traumatic or non-traumatic. While you may not be able to sue if a brain tumor or illness caused your injury, you may have a case if your injuries happened in a preventable accident. Speak to an accomplished Bakersfield personal injury lawyer to learn more about your particular claim.