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Contributory Negligence May Bar Your Claim

Paul Daniels — Wed, 21 Sep 2011 00:00:00 -0400

North Carolina is one of only four jurisdictions in the United States, including Virginia, Maryland and the District of Columbia, where an injured party’s claim against a careless driver may be completely barred by his or her own negligence. For example, if another driver is inattentive, runs a red light and collides with your vehicle, a jury could conclude that you “contributed” to your injury by entering the intersection when you knew, or should have known, that it was dangerous to do so.

That’s right! Most drivers don’t know that even if you have a green light governing your lane of travel, you do not automatically have a right to enter that intersection. Despite having a green light, a driver nonetheless has a duty to keep a reasonable lookout. If a reasonable person could have perceived that it was dangerous to enter an intersection because another driver is driving carelessly, a driver may not enter that intersection even though he or she has the right of way.

Contributory negligence also commonly bars slip and fall cases because property owners have a duty to warn others only about hidden defects. Typically, contributory negligence applies in instances when someone slips on snow or ice, and the snow or ice is readily apparent, putting them on notice that conditions are rife for slipping. Contributory negligence also may bar slip and fall claims in less obvious circumstances, such as defects in stairs or walkways. For example, claims based on tripping on obviously broken or uneven sidewalks usually are dismissed.

North Carolina’s law of contributory negligence often leads to disappointing results in liability suits. Stay alert of your surroundings to avoid injury and drive defensively. Remember that no one looks after you better than you do.

Insurance Goes to College

Paul Daniels — Thu, 08 Sep 2011 00:00:00 -0400

A couple of weeks ago we experienced that bittersweet moment of moving our oldest child into a dormitory room at college. We knew the day would come, we just didn’t think that it would come so soon or that we would be so unready for it. Our baby would be on her own (kind of) and responsible for managing her own affairs.

In the weeks leading up to the move, all sorts of things went through my mind. Would she be safe? Had we done all we could to prepare her for the world? Would she be influenced by the right people? We also knew that life would never again be quite the same. She would now be two and a half hours away instead of sleeping across the hall from her sister, and when she did come home it would be temporarily – only until the break was over.

As we unpacked her clothes and shoes and all the other stuff that young ladies seemingly cannot exist without, I began to wonder how she would keep it all safe. We had padlocks for her wardrobe, but what about the new computer we just bought, or her mobile phone? It occurred to me that I needed to check with my insurance agent to find out if my homeowners policy provided coverage for my child living in a dorm room 150 miles away.

Yes, my agent told me, my policy does cover my daughter living in a dorm room, but not if she lives off campus. But even so, my homeowners policy only provides coverage only for things such as theft and fire. While looking online for a loft bed for her, I also ran across insurance designed just for college students. This policy provides theft coverage, just like my homeowners policy, but it also provides extended coverage for things such as accidental damage to computers. Moreover, this insurance is very affordable – only about $70 a year for $3,000 in coverage. I swore that I was done spending money after paying the tuition, fees, books, room, meal plan, etc., etc., but this was just too good to pass up. I would sleep better knowing that even accidental loss of? expensive items was covered.

I now understand how my parents must have felt when I left home, and that it doesn’t matter how old children get, moms and dads always worry about them. Fortunately, we can now buy affordable insurance cheaply to cover some of those mishaps that we aren’t there to prevent. Good night, sweetie!

The Son

Janet Ward Black — Mon, 05 Sep 2011 00:00:00 -0400

Ninety-seven hours. That’s how long it’s been since Watson, my 15-year old miniature schnauzer, walked away from home before dawn Wednesday morning.

It has been a time of great compassion from co-workers, neighbors, friends, family and strangers. They have driven the neighborhood, knocked on doors, walked miles in the woods, inserted flyers into mailboxes, and posted his picture on Facebook.

No Watson.

Wednesday afternoon we hired a tracking dog and his handler from Tri-County Trackers to try to find Watson. R.V., the handler, is a retired police officer. Dodger is one of his four Doberman tracking dogs. After they arrived and asked what had happened, R.V. said, not knowing my faith, “I always pray before a track.” He got a laminated card out of his wallet and read it, as Gerard and I stood near:

“Lord God, maker of all living creatures, you called forth fish in the sea, birds in the air, and animals on the land. We humbly beseech you to bless this track and by the power of your love, enable us to accept your plan. Amen.”

With Watson’s scent from his dog bed, Dodger, followed by R.V and Gerard, ran for over an hour through neighbors’ yards and woods following his trail.

No Watson.

Dodger tracked to a set of schnauzer-sized paw prints near the edge of the lake a few hundred yards from home.

But no Watson.

But Watson’s trail that Dodger marked made good sense to us—familiar areas he’s loved for the dozen years we’ve lived in this neighborhood. And even though there was no Watson, for some reason I felt better.

We’ve known Watson has had cancer since earlier this year. He has been deaf for years. He was taking four different pills a day but was still joining in on long walks to Bur-Mill and running the length of the house to the kitchen when he wanted a dog biscuit. But I knew he felt poorly at times—he had trouble going up and down steps, and some mornings he just didn’t want to get up or eat.

I knew my heart would break when his time came. I wondered if I’d have to make the decision to put him down when the joy in his life was gone or if I’d find him gone one day when I came home from work or if I’d wake one morning and he’d be there, in his bed beside me, but still.

I have heard so many stories this week of people whose elderly pets disappeared to go off and die. In my heart I believe that is the case here. But why would they do that? Why leave those who love them the most when they need comfort, food, water, and compassion?

A friend sought the answer and read that it’s a left-over instinct from when dogs traveled in packs. When a dog senses that his time is near, he knows if he stays with the pack, he will make the others vulnerable to predators. In order to protect his family, he leaves. He leaves to die alone away from the comfort, provision and protection he has enjoyed for his lifetime. He leaves for the sake of the others.

“No one has greater love than this, to lay down one’s life for his friends.”

Watson may have done it for me--to protect me from the pain of his final illness, to remove from me the need to care for him during a difficult time, to save me from the decisions of his last days.

Jesus did it for all of us. But young. Healthy. Sinless.

He laid his life down for each of us so that we too may live.

“No one has greater love than this, to lay down one’s life for his friends.” John 15:13

Amen.

The Prodigal’s Father

Janet Ward Black — Wed, 31 Aug 2011 00:00:00 -0400

     It’s 8:50 am Wednesday, August 31, 2011. I’ve been up since 4. I let my two dogs out to “use the tree,” as we call it, at 4:50 am.

     My German Shepherd Treva came bounding back within the typical 90 seconds. My fifteen year old, deaf, cancer-ridden miniature schnauzer, Watson, did not. And he still hasn’t come home.

     So I’ve mustered husband, sister-in-law, neighbors, the fellow who runs the horse barn near by, joggers and landscape workers in the search for Watson. Many know how I feel about him, so their foreheads are lined when we talk. A number have been driving around looking for him since before 6. Others have been walking our neighborhood and the Lake Brandt trail behind our house in search of Watson.

     I was walking in the woods looking for his sweet self- listening intently for his familiar bark or the rustle of leaves that might foreshadow his presence. A thought came: when we hear or read the story of the Prodigal Son, we view it from the perspective of the son. But what about the Father’s perspective? Is how I feel today, with my heart heavy, eyes brimming, looking around every corner, jumping when the phone rings, holding on to hope that I’ll see him again not the perspective of the Father? He waits, hour after hour, day after day, for any news of his beloved child, hoping to see a small figure in the distance who comes closer, closer- yes, his flesh and blood is finally home!

     Is that not how God is? The Father of all us prodigals? Open-armed. Forgiving. Ready to throw a party to celebrate our return to where we belong. Home.

     His heart aches for those who have not yet chosen to return to His loving embrace. Today is the day, return to Him.

     Make His day. Come home.

The Lawyer's Perspective on Personal Injury Cases

Paul Daniels — Tue, 30 Aug 2011 00:00:00 -0400

Lawyers seldom see their clients’ personal injury cases the same way their clients see their cases. This phenomenon typically has little to do with the client or the facts of the case - really, we want do to all we can to help our clients. Rather, this divergence in viewpoints comes from a lawyer’s legal training and experience.

From our clients’ perspectives, their cases often are very straightforward and uncomplicated. Take for example this scenario: A self-employed client is sitting in her car at a stop light when she is rear-ended by a large van. The van struck the client’s car with such force that her seat broke and she found herself looking up at roof of her car. Immediately she has a great deal of pain in her neck and back and is transported to the hospital where she is examined by a doctor and has x-rays. She is released later that night with diagnoses of neck and back sprain and is given prescriptions for pain killers and muscle relaxers.

She follows the doctor’s advice and takes the medication prescribed at the emergency room and stays out of work for three days. However, at the end of the three days, she is actually feeling worse. She then goes to see her family doctor who tells her that it will be about a month before the pain goes away and gives her another prescription for pain. On the advice of a good friend, she begins to treat with a chiropractor about three weeks after the accident. The client sees the chiropractor three days a week for ten weeks, but at the end of her treatment she is still dealing with a great deal of pain that limits her at work and at home. The chiropractor tells the client he can’t do any more for her and recommends she see an orthopedist or a neurologist about the pain.

Two weeks later the client finally gets in to see an orthopedist about the pain in her neck and back. An MRI reveals the client has a bulging disc that is putting pressure on a nerve and the orthopedist tells her that is what is causing the pain.

In the meantime, the client, who has yet to retain an attorney, is dealing with the other driver’s insurance company, which has paid her for her car, but because the client has not finished with her medical treatment, the insurance company has yet to make an offer to settle her bodily injury claim. Because of her continued pain, the client has been able to work only part-time at her business and her bills are mounting. Then one day she has had enough and calls a lawyer that helped one of her friends years ago.

The client meets with the lawyer and explains the facts to him. The lawyer is very empathetic, and thinks that the client has a good case, but tells her that there are some problems. First, he tells her that the doctor in the emergency room diagnosed her with only a back and neck sprain, and that she didn’t actually get the diagnosis of the bulging disc until about three months after the car wreck. The insurance company will claim that because of this “gap” in time, the bulging disc was not caused by the accident. Moreover, he tells her, insurance companies hate chiropractors and don’t like to pay their bills. Finally, the lawyer tells the client that although it is quite clear to her and everyone else she knows that the pain began when her vehicle was struck by the van; the law will not allow her to testify that the bulging disc was caused by the accident. Instead, they will need to find a doctor who will testify that the bulging disc and accompanying pain were caused by the car crash and that it will cost more than a thousand dollars for the doctor’s time.

Through all this, the client has become very frustrated. It is not enough that she was injured by the fault of the other driver, but now a lawyer is telling her that it will be tough to prove that the injury she knows she sustained in the accident was actually caused by the accident. The good news, however, is that the lawyer has tried a lot of these cases, and has been pretty successful in the past. Although the lawyer can’t guarantee any results, the client is comforted by the lawyer’s straightforward assessment and his confidence and they agree to partner on the case.

I like to think that a good lawyer is not just an advocate for his client’s position, but also is a wise counselor who will tell his client the good news and the bad because that is the only way that the client can make a sound decision. So, if your lawyer is cautious about how he thinks your case will turn out, or tells you that there are problems with your case, remember, he is telling you these things because he is a good lawyer and it’s for your own benefit.

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When Do You Need a Lawyer?

Paul Daniels — Mon, 15 Aug 2011 00:00:00 -0400

Auto accidents are scary! You are driving down the street and suddenly a careless driver comes out of seemingly nowhere and collides with your car. Then there are lights and sirens everywhere as law enforcement, fire and ambulance crews descend on the scene. The officer asks you questions about how the accident occurred, and whether you are injured. Then you may be transported to the emergency room at a local hospital for obvious injuries or simply to be “checked out.” Later, after the law enforcement officer finishes his investigation he prepares an accident report, showing how the accident took place, who the witnesses are and that the other driver was cited for making an illegal left turn in front of your vehicle.

A day after the accident, while you are nursing your stiff back and bruises or worse, an adjuster from the other driver’s insurance company calls you and asks you for a statement. You haven’t done this before, but there is no doubt in your mind that the other driver was at fault, so you agree to give a statement. You describe for the insurance adjuster the accident, the damage to your vehicle and your injuries and give the adjuster permission to get a repair estimate on your car.

Two days later another adjuster calls you and tells you that she is handing the property damage and has an offer for you. Yet another adjuster who is handling the bodily injury portion of your claim calls later that week and asks you for permission to contact your medical care providers to get copies of your bills and doctors records that detail your treatment. Three weeks later, the same adjuster calls you back with an offer to settle with you for injuries. Because you haven’t been in an accident before you begin to ask yourself: what if I continue to have pain after I sign the paperwork; and will the amount the insurance company is offering for my car be enough to replace the reliable vehicle that was destroyed by the other driver? These are common questions for many people who have been involved in motor vehicle accidents simply because they have never been through the process of handling a claim with an insurance company.

My advice to clients in these circumstances is not to rush into anything with the insurance company whose goal is to settle each claim for as little as possible. Give yourself time to see how you feel. Are you having health problems that you didn’t have before the accident? Is the offer that the adjuster made for your vehicle fair, given the mileage and condition of your vehicle prior to the accident? If you have been thoroughly checked out by a doctor and don’t have any continuing pain or limitations and the insurance company has offered to pay all your medical bills plus something for pain and suffering and pay you what your vehicle was worth as well as any out-of-pocket expenses, then you might want to settle your claims without retaining a lawyer and incurring the costs and emotional investment that come with retaining counsel.

If, on the other hand, as is commonly the case, the insurance company adjuster tells you that the whiplash caused by the accident is only a “soft-tissue injury” and they aren’t going to pay for your physical therapy bills and the ruptured disc in your low back was not caused by the accident, or the car that you lovingly cared for and just replaced the transmission and tires is worth only a fraction of what it costs to buy a reliable vehicle, it is a good idea to see an attorney. Personal injury lawyers handle these sorts of disputes on a daily basis, and know how the insurance game is played, so to speak. We understand from experience that in addition to payment for your property damage you also may be entitled to payment for things like the loss of use of your vehicle, and medical payment coverage which may amount to thousands of dollars. Also, having a lawyer on your side often results in an increase in the insurance company’s settlement offers.No one wishes for anyone to be involved in an automobile accident. Accidents are hugely disruptive to lives and can cause great financial hardships. However, if you find yourself the victim of another driver’s fault and are overwhelmed by the process of resolving your claim it is good to know that you can always speak with a personal injury lawyer who can answer your questions, protect your interests and help you get you get back to living life again.

Experience and the Young Driver

Paul Daniels — Mon, 08 Aug 2011 00:00:00 -0400

    Every year thousands of young people tragically die as a result of motor vehicle accidents. The Centers for Disease Control (CDC) reports that motor vehicle accidents are the leading cause of death among teenagers each year. More than one-third of teen deaths are caused by motor vehicle accidents - a frightening statistic indeed. According to the CDC young men between 16 and 19 years old, those driving with passengers and newly licensed drivers are at highest risk of motor vehicle accidents.

    Factors such as lower seatbelt use and high alcohol consumption are linked to many teenage fatalities. However, the CDC’s research indicates a lack of driving experience, or time behind the wheel, is closely linked to motor vehicle deaths. Not surprisingly, teen drivers with limited driving experience do not recognize hazards, or do not recognize them quickly enough to avoid many accidents. Moreover, young people, especially young men, tend to drive faster and leave themselves less distance to brake than more experienced drivers.

    To reduce driving fatalities among young people, many states have implemented what are called “graduated drivers licenses” or GDLs, which permit inexperienced drivers to operate motor vehicles only under lower-risk conditions such as during day light hours or with only one passenger (and hence, limited distractions), until they become more experienced. According to CDC, the use of GDLs have dramatically reduced deaths among inexperienced drivers.

    In addition to government efforts to reduce teen motor vehicle fatalities, there are things that young people and their parents can do to better equip teens to be safe drivers. Drivers education classes, for example, which are provided to high school students in North Carolina through their schools, give young drivers opportunities to gain valuable driving experience in a low-risk environment under the supervision of an instructor. Driving schools, where inexperienced drivers are actually confront real-life hazards, such as hydroplaning and simulated drunk driving in controlled environments, are very beneficial in helping teens to understand the gravity of these hazards and the potentially deadly outcomes. My own teenager came home from a morning at driving school recently, gushing about what she had learned and how the course had brought to life hazards that had previously been in her mind only theoretical. (As any parent of a teenager knows, any time a young person confesses that they actually learned something it is a notable occasion).

    One of the most frightening days in a parent’s life is the day that teenager drives off in a vehicle by herself for the first time. Parental instruction, drivers education, safety courses and limiting the hours that new drivers are allowed to operate vehicles until they have some experience under their belts will ensure that that she comes home safely.

Changes to the Law Benefit Insurance Companies at the Expense of Injured People

Paul Daniels — Fri, 15 Jul 2011 00:00:00 -0400

The North Carolina legislature recently ended its "long-session" on June 24th. Notable among the legislation enacted was House Bill 542 entitled "AN ACT TO PROVIDE TORT REFORM FOR NORTH CAROLINA CITIZENS AND BUSINESSES," which dramatically changed the legal landscape for injured people, and provides a windfall for negligent drivers and their insurance companies.

It has always been the law that injured people were entitled to recover the amount of their medical bills, even though their health insurance may resolve those bills less than the amount billed. The logic for this rule was sound: Neither a negligent person nor his or her liability carrier should be allowed to benefit from health insurance paid for by an injured party. Indeed, insurance company lawyers weren't even allowed to mention to a jury that an injured driver had health insurance. So, for example, if an injured driver incurred $5,000.00 in medical bills as a result of the negligence of another driver, and his or her health insurance resolved those bills for $3,000.00, the amount of medical bills presented to the jury would be $5,000.00 because the law did not allow a negligent driver to benefit from the foresight and sound judgment of another who obtained health insurance through an employer or by purchasing it themselves.

HB 542, however, dramatically changes the law by providing that only the amount actually paid to satisfy medical bills is admissible to prove an injured person's medical expenses. Using the same example above, the amount of medical bills that could be presented to a jury would be only $3000.00, not $5000.00, allowing the negligent driver and his or her insurance company to benefit from an injured driver's health insurance. Moreover, even if an injured driver's medical bills have not been paid by his or her health insurance, the insurance company lawyer can still introduce as evidence of the amount of medical expenses that amount actually necessary to satisfy those medical bills.

Allowing negligent drivers and their insurance companies to benefit from an injured person's medical insurance, which he or she may have paid for out of his or her own pocket, strikes most people as wrong! It also sends a perverse message to would-be careless drivers that the cost of their carelessness will be subsidized by people they injure.

These changes are effective for all cases filed after October 1, 2011.

MAKING THE WORST OF A BAD SITUATION

Paul Daniels — Wed, 13 Apr 2011 00:00:00 -0400

So, you’re at work one day - a day just like thousands of days before – when a pallet of merchandise falls from a shelf ten feet up and lands on you. The merchandise, weighing a couple hundred pounds, breaks your shoulder and your collar bone and ruptures two vertebral discs in your neck.

You are out of work for more than a year because of the severity of your injuries. Because you were injured at work, you have filed a workers’ compensation claim which pays you two-thirds of your wages while you are out. Your employer also has paid your medical bills, including the bill for the disc fusion surgery that you and your doctor hoped would resolve your neck injury because conservative treatment of therapy, injections and medication did not relieve the consistent pain that now runs down your arm to your fingers.

Your wife and children have been very supportive throughout your ordeal even though you can’t play with the children like you used to, don’t sleep much because of your pain and sometimes need help getting dressed. And because you are being paid only two-thirds of your salary, your wife has had to take a part-time job to make ends meet. Later, you and your doctor determine that you can’t, because of your injury and limitations, go back to work in the same position. Because you have been with your employer for many years, your skills are highly specialized, and even without your injuries, it would be tough to find another job doing the same sort of work. Fortunately, North Carolina’s workers’ compensation scheme provides compensation for you as long as you are unable to work because of your work-place injury – at least until now.

House Bill 709 which was introduced recently in the North Carolina legislature would limit the amount of compensation that you can receive to 500 weeks regardless of your ability to work after a crippling injury. Moreover, under this proposal you could lose all your benefits if you employer has any work that you can do. Even though you were a highly skilled employee making a good living, and now can’t do that sort of work because of your injury, your employer could force you to choose between losing your benefits and taking a position that pays much less than you made before your injury. Imagine, your life suddenly turned upside down by an injury at work, and now the legislature seeks to make the worst of a bad situation by limiting the benefits you can receive for an injury you did not cause.

If you believe that it is wrong for the North Carolina Legislature to deprive injured workers of the compensation they need to support their families, call your legislator and tell him or her to oppose House Bill 709. You can contact your legislator by going to this link http://www.ncga.state.nc.us/.

What's a Hug Worth?

Admin — Tue, 05 Apr 2011 00:00:00 -0400

Since the founding of our republic more than two centuries ago, the jury has been a bulwark in defense of our liberties. The lessons of history have taught us that regular people on a jury are collectively smarter than any single person and can be trusted to provide a just decision in a civil case in which a person has been injured by the negligence of another. A chief purpose compensation awarded by juries is to put the injured party in as near his pre-injury position as possible. What this means is that a jury may be asked to award an injured person that amount of money that jurors would require to place themselves in the injured party’s position.

Our time-honored and well-serving tradition of trial by jury, however, is now under attack as never before in the State of North Carolina. Pending in the North Carolina legislature is a bill that would limit compensation that a court may award to a patient injured by the negligence of his doctor for “non-economic damages” to $250,000.00. Non-economic damages are those intangibles that defy precise measurement but are nonetheless vital to our well-being, such as pain, suffering, disfigurement, emotional distress, physical impairment and loss of the companionship of a loved one. Although the legislation which is now pending would still allow juries to award victims of medical malpractice an amount they deem just under the circumstances, the judge would reduce any award for non-compensatory damages to $250,000.00. To put this in perspective, this means that the toddler who lost both arms and legs as a result of medical malpractice would receive only $250,000.00 for those lost appendages, even though he will never be able to run with his friends or hug his mom and dad. No longer will juries decide, in their collective wisdom, what the things that give us so much joy in life are worth. Rather, the maximum amount that one who has been disfigured by malpractice can receive will be limited by a majority of legislators without regard to the acts or the egregious nature of the injury.

If you agree that juries, and not elected officials should determine the value of the lost companionship of a loved one, disfigurement or chronic health problems caused by medical malpractice, contact your North Carolina legislator and let that legislator know that you oppose SB33. You can reach your representative by clicking here.

Uninsured and Underinsured Motorist Coverage (UM/UIM) - What is it and is it contagious?

Paul Daniels — Mon, 14 Feb 2011 00:00:00 -0500

North Carolina law requires motorists to carry a minimum of $30,000.00 per person and $60,000.00 per accident in bodily injury liability coverage to protect other drivers from their negligence. While motorists can buy liability insurance with much higher limits (and I recommend they do), many still purchase minimum limits policies. If you have been to the doctor lately, you understand that $30,000.00 is not a lot of money, medically speaking, and if you are the victim of another driver's negligence you could very quickly find yourself with medical bills exceeding $30,000.00.
Fortunately, the law provides a way for motorists to protect themselves and their families from financial hardships that might accompany a bumper-to-bumper encounter with a negligent driver.

North Carolina General Statute 20-279.21 requires insurance companies to provide their insureds an opportunity to purchase uninsured motorist coverage (UM) or combined uninsured/underinsured motorist coverage (UM/UIM) when they purchase liability policies with limits in excess of the $30,000/$60,000 minimum. Moreover, the law requires insurance companies to offer insureds an opportunity to purchase up to $1,000,000.00 in UM coverage, or the same amount of combined UM/UIM coverage.

Now let's talk about what these terms mean. UM coverage provides Insurance for bodily injury and property damage in the event that one is injured by the negligence of a driver who has no insurance. Similarly, a UIM policy provides insurance coverage in the event that one is injured by the negligence of a driver who does not have enough liability insurance to compensate another driver for the injuries caused by his negligence. Legally speaking, a vehicle may be underinsured when the limits of a negligent driver's liability policy are less than the limits of an injured driver's UIM policy.

Moreover, the great thing about UM/UIM coverage is that it typically is much more affordable than liability coverage. So, don't leave it to others to protect your financial interests. Talk to your agent about Uninsured and Combined Uninsured/Underinsured Motorist Coverage and tell 'em Paul sent
you!