Tort "Deform" and the BP Oil Spill

My mind is being boggled daily by the ramifications of the BP Oil Spill.  Men lost their lives on the rig, our environment is being devastated and every day folk have lost their livelihood in the Gulf.  Worst of all, this is nowhere close to ending.

Anger is at an all time high.  Tony Hayward foolishly commented that he wanted his life back.  Yeah, well so do the families of the men that perished.  So do the people that depend upon the Gulf and its abundance to earn a living and support their children.  Rep. Joe Barton of Texas had the audacity to apologize to BP because of the pressure the White House was putting on BP to set up an escrow fund of $20 billion dollars to help compensate the victims. I read today that some experts are estimating the total cost could exceed $100 billion.

All of this has generated new buzz on the issue of Tort Reform.  Tort Reform refers to proposed changes in our civil justice system that would limit the ability of victims to get compensation.  Proponents of tort reform would argue that this will reduce skyrocketing insurance costs and limit frivilous lawsuits.  This is despite the fact that there have been no unbiased studies (meaning studies other than those purchased by the insurance or healthcare industry) that prove or even support the proposition that insurance costs are related to tort compensation.  Tort reform only helps big business.  It completely obliterates justice for the comman man. Capping or limiting potential damages under Tort Reform also removes a company's determination to make safety a primary issue.  Take the BP Oil Spill as an example.  Currently, oil companies are limited to a $75 million dollar cap on damages.  Compare that to the estimated $100 billion in damages that BP has caused.  That is $.0007 on the dollar.  How does that affect, say the shrimper in Louisiana that makes $50,000 a year to support his family?  Joe Shrimper makes a claim to BP for his lost income for just one year of $50,000 and BP says, "Yes, we were wrong, but we only owe you $35.00.  Here's a check and best of luck to you".  That, my friends, is Tort Deform.

There is an attempt to push a bill through now that will remove the $75 million dollar cap on damages by oil companies.  By allowing unlimited liability, perhaps that will make companies like BP take safety a little more seriously if the shareholders know their dividend checks are going to be a little lighter in the years to come.

The argument on Tort Reform is contentious and bitter.  I am the first to agree that there are frivilous lawsuits out there but the answer is not in passing measures that will hurt those decent people who are not making frivilous claims but only trying to survive and be treated fairly.  Our civil justice system has plenty of measures in place to take care of frivilous lawsuits (ie, Motions for Summary Judgment, Rule 11 Sanctions, Trial by Jury, etc).  Let those procedures work their magic and take care of booting out the ridiculous lawsuits and leave the law alone to take care of those people that justly deserve it.

Insurance Bad Faith

As Beth discussed in her prior Blog post, if you are sued and the verdict is in excess of your available insurance limits, you may have a claim for Bad Faith against your insurance company. We are required to purchase liability insurance and assume if we are at-fault our insurance carrier will truly be our “Good Neighbor” and take care of us. However, the insurance company makes the decision about what to do for you. So if you are sued, the insurance company decides what offer to make and whether it will entertain fruitful settlement discussions with the Plaintiff. In essence, your insurance company decides whether you will be sued or not based on how they deal with the plaintiff in settling his or her case.


Bad Faith claims usually arise when the insurance company failed to settle a case with a plaintiff within the available insurance coverage and then later a verdict is rendered against the at-fault party for an amount in excess of the insurance limits. In North Carolina, you are required to carry at least $30,000.00 per person/ $60,000 per accident. The majority of time, in my practice, the plaintiff would like to resolve the claim within the limits of the at-fault party’s insurance coverage. Most plaintiffs are not seeking to displace someone from his or her home or someone's retirement. However, when the insurance company refuses to attempt to settle in good faith, my clients sometimes have no choice and at that point are a little irritated they are not being treated fairly.

An example of bad faith practices by an insurance company is when a plaintiff is seeking to settle his or her claim for let’s say the $30,000.00 worth of available coverage. The insurance company offers $25,000.00 and no more. The insurance company is basically telling the plaintiff, “I won’t pay you more so go file suit (against my insured) and try to get more”.   Filing a lawsuit is, of course, a long, expensive and risky process.  But the plaintiff has no choice but to file suit and let's say gets a verdict of $50,000.00. The insurance company then pays the $30,000.00 according the contractual language of its insured’s policy but leaving its insured to pay the plaintiff the other $20,000.00 from his/her own pocket. Now, if you are like me, I’d be a little ticked if my insurance company could have settled this claim for $30,000.00 and protected my home, car and retirement. Now you owe another $20,000.00 to someone you accidentally hurt. Once you discover the insurance company has not acted in your best interest, you now have a claim for potential bad faith. Some insureds will tell their company, "It’s not my fault", or "How can they be hurt that bad", or "I don’t want them paid". If you tell your company this and then have the above verdict against you, there is no bad faith. In other words, the insurance company acted in the manner you wanted them to and thus they are protected from bad faith. However, if you tell the insurance company to pay the claim to protect your assets like your home, retirement, etc., then you have a better shot at a bad faith claim. I would also recommend if you want the insurance company to resolve the claim to keep your assets protected that you send this in writing via certified mail to document the insurance file.

If you succeed in a bad faith claim against your insurance company, the insurance company could potentially owe you the excess amount. In the example above, it could be enough to cover the excess amount you owed the injured party. Depending on how bad the insurance company acted and what the documentation and claim files show, you could potentially recover more than the excess verdict under various statutes.

I look at bad faith as accepting responsibility. If it’s your fault, accept it and have it handled properly; it could keep you from losing your home or a retirement you have worked hard to obtain. I also recommend you review your insurance coverages. I firmly believe $30,000.00 worth of coverage is not enough to protect you when you are responsible for an accident. Our firm will review your insurance coverage for free and provide you advice on how to best implement an insurance policy that will adequately protect you.  Click here to visit our Online Legal Forms and Advice Store and you can upload your insurance declaration page for a free review by one of our attorneys. 
Posted by:  Jennifer Seate, Partner, Leone Noble & Seate

What Happens If You Are Sued?

So May was not a very good month for my blog.  It suffered because I was so darned busy that I forgot to write!  I also took the liberty of taking a bit of a vacation as well so there you have it. 

But now that I am back and ready to rock and roll (and type), I wanted to try to focus on a topic that doesn't often come up for our own clients, but it does happen to those folks who have hit our clients and maybe to someone you know.  What happens if you get sued by someone that you hit in a car accident?  While our firm does the opposite side of this issue (we represent the person who is filing the lawsuit against the at fault driver), we have had many people call us wanting to know what to do when they get sued.

The simple answer is that your own liability insurance company has a duty to defend you in the lawsuit. If you are ever served with legal papers (called a Complaint and Summons), you should immediately call your insurance carrier and report the lawsuit.  They will, in turn, hire a lawyer to represent you in the lawsuit.  But the real question... why are YOU getting sued instead of your insurance company?  That's the way the law rolls in North Carolina.  We (Plaintiff's lawyers) are forced to sue the individual responsible for the accident, not the insurance company.  While the insurance company has the duty to defend their insured, they are not named in the lawsuit, nor is a jury allowed to even know there is insurance available.

Even if your insurance company provides you with a lawyer at its expense, you are still entitled to your own legal counsel.  It is highly recommended that you hire your own attorney to advise you if there is a chance that you could get hit with a verdict in excess of your insurance limits.  If that is the case, your assets will be in jeopardy of being collected against.  You will, before you get to that point, want your own attorney to independently advise you of the risks outside of the lawyer hired by the insurance company to defend you.

I am going to ask my partner, Jennifer Seate, to write a follow up blog on this issue regarding issues of Bad Faith against your own insurance company.  Keep your eyes open.  It won't be another month before we write again.

Her Last Call On Her New Cell Phone

This is a link to a recent email sent to me showing the horrors of driving and talking on your cell phone at the same time.  We posted it on our law firm's website.

Spring Safety Tips for Drivers

Here is a link to a recent safety tip email blast we sent out to our clients.  Read here for Spring Safety Tips for Drivers. 

Uninsured/ Underinsured Motorist Coverage (UM/UIM)

This is a two part series giving a basic explanation on Uninsured/ Underinsured Motorist Coverage in North Carolina.


What is UM or UIM?

Uninsured or underinsured motorist coverage can pay for injuries to you and your passengers when there is an accident and the other driver is both legally responsible for the accident and considered "uninsured" or "underinsured." In addition, uninsured and underinsured motorist coverage can pay for injuries to you or any resident relative living in your household, even if your automobile was not involved in the accident.

An uninsured driver is someone who did not have any insurance, had insurance that did not meet state-mandated minimum liability requirements, or was not financially able to pay it. A hit-and-run driver also counts as uninsured as it relates to bodily injury as long as there was an impact with the uninsured vehicle (UMBI). However if you are claiming uninsured motorist property damage, the hit and run driver must be identified before you can recover for uninsured motorist property damage.

An underinsured driver is someone who had insurance but the amount of the insurance was not high enough to pay for the personal injuries or damage caused by the accident. In these situations, UIM can pay you the differences in your underinsured coverage and the at fault automobile liability coverage if your case warrants that amount of damages.


Is It Required?

North Carolina General Statute 20-279.21(b)(3) and (b)(4) requires all licensed drivers to carry Uninsured/Underinsured (UM/UIM) motorist coverage on their insurance policies in an amount at least equal to the highest bodily injury liability coverage on said policy. Unfortunately though if you carry only the minimal liability coverage, you will not likely have UNDERinsured coverage.


Why Would You Want It?

Simply put, you want to be protected. If you get into an accident with someone who is driving without insurance or doesn't have enough of it, you will most likely not get just compensation. With UM/UIM in place, you will have a means to collect damages for your injuries and other expenses incurred.

UM/UIM coverage is usually affordable, especially considering the amount of protection it offers. It could pay your medical bills, lost wages, and pain and suffering. If someone hits you or your car and is legally responsible for the damages, you won't get any money from them if they don't have money to give you. Especially during times when people are struggling economically, many drivers either do not have insurance or do not have enough insurance. If you have UM/UIM, you can get money even if the other driver doesn't have enough.


Next article: How Does UM/UIM Work and How Much Should You Carry?

Dogs... I Love 'Em!

I am reproducing this Attitudes in Living article I wrote for our last newsletter.  It got a lot of response from dog lovers so I thought I'd post it on our blog as well.  Not everyone wants to hear about legal stuff all the time!

My husband and I have three Golden Retrievers. Our oldest, Hearsay, is 8 years old and is bad, bad, bad. She loves people so much, that when you come over to our house, she will jump up on you, grab your shirt and pull you down to the ground so she can smother you with dog kisses. I’ve tried for 8 years to break her of that habit, to no avail. She is, however, our athlete in the family and loves to play ball… and more ball… and more ball… and more ball. We have figured the only way to stop her from grabbing shirts is to stuff a ball in her mouth. The cutest thing she does though is that she has to have a stuffed animal (we call it a “Lambie”) stuffed inside her mouth in order to go to sleep. That cuteness makes up for all the badness.


Our next Goldie is Piper. She is 7 years old and if you ever visit us at our office, you are more likely than not to find her up here at work with me. She is the only one of our dogs that is well behaved enough to enter into the professional world. Piper is a momma’s girl and stays pretty close to me, even following me into the stall in the women’s bathroom. Very annoying. But if I am ever sick, she lies beside me in bed and will not leave my side. On those rare occasions, we call her Pipey Nightengale.

The last to round out our trio of fluff is Buckeye. He is 5 years old and is the most gorgeous Golden Retriever you’ve ever seen. However, he is not the brightest of dogs. I call him my little Zoolander because what he doesn’t have in brains, he makes up for in really, really good looks. Buckeye will stare at himself in the mirror and I am sure he is saying to himself, “You are really, really a good looking dog.” Buckeye tries to be smart, but it never quite works out for him. When he is playing outside and doesn’t want to come in when I call him, he will walk over to the bushes and stick his head inside the bushes so he can’t see me. He truly believes if he can’t see me, then I can’t see him and thus he is adequately hidden from me. Never mind the 80 pounds of his butt sticking out in plain view!

I adore my dogs even with their goofy faults. Their love of me, my husband and every other visitor that comes to our house is without bounds. Gildna Radner once said, “I think dogs are the most amazing creatures; they give unconditional love. For me they are the role model for being alive.” Well said.

Prevent Construction Work Zone Accidents

RALEIGH, N.C. (AP) -- Two agencies in North Carolina have begun their annual operation to reduce traffic accidents in work zones across the state.


The N.C. State Highway Patrol and the N.C. Department of Transportation are kicking off Operation Drive Smart 2010. The Highway Patrol will set up enforcement and crack down on excessive speeders in nine work zones from Camden County to Buncombe County.

Troopers will use motorcycles and marked and unmarked patrol vehicles and pay attention to all motorists, including commercial motor vehicle drivers committing serious traffic violations.

According to NCDOT, there were 2,125 work zone crashes resulting in more than 1,200 injuries in 2009. Eleven people were killed.

During Operation Drive Smart 2009, troopers issued more than 500 citations for speed violations in work zones.

Medical Negligence

My mom has been in the hospital since last Thursday evening with a partial bowel obstruction.  This is something that has been plaguing her for the past five weeks and finally, we elected to have exploratory surgery done yesterday to try to determine the cause.  Obviously, you are always concerned about something going wrong.  It made me think that it might be time to do a post about medical malpractice.

If you or a loved one has been the victim of medical negligence, you should always contact an experienced attorney to discuss the facts and determine if there is a claim to pursue.  But remember, not all complications are necessarily malpractice.  For example, in my mom's surgery, there are risks she faced that were common to all surgical patients (ie, infection).  So if she got an infection, it doesn't necessarily mean that the hospital or doctor did something wrong. It could have just been a common risk she faced.  On the other hand, say the doctor left a piece of gauze inside of her and that in turn caused the infection, then that very well may be medical negligence.  Sometimes the line between negligence and a common risk is very slight and only an attorney can tell whether you have a valid legal claim.

Head Off a Potential Claim or Incident:  if you or a loved one is in the hospital, you need to be proactive in assuring that you are being given the best possible care possible. Make sure you ask questions of the doctors and nurses so you understand fully what is going on.   Do not hesitate to call the nurse for help if you need it.  Insist that the medical personnel be responsive to your needs.  Also be aware of the hospital's bill of patient rights which will explain to you in detail the hospital's duties to you.  Review the hospital's patient advocacy program.  Most hospitals have in place a committee or person(s) in place to address patient grievances or concerns.  Most of all... take active participation in your own hospital care.

If you are alone and do not have family to help look after you while you are in the hospital, and you do not feel you are getting the care and concern you need, you can call the Division of Health Services Regulation (DHSR) at (919) 733-7461.

Here is a list of the hospitals in our areas with patient rights information:
Rex Hospital
Wake Medical Center
Duke Health Raleigh Hospital
Duke University Medical Center
Durham Regional Hospital
UNC Hospital

Can Student Loans Be Discharged in Bankruptcy?

It is a financial fact of life that many people take five years, ten years, or even longer to pay off the debt they incurred to get an education. In fact, the inability to repay student loans is what pushes many people into bankruptcy, in conjunction with other factors like loss of income, uninsured medical bills, exorbitant credit card interest rates and payments, and other misfortunes. If student loans are the primary factor holding someone in debt bondage, can bankruptcy help?


At first glance, the answer appears to be “no”. Student loans (debt incurred for educational expenses backed by a private institutions or governmental agencies) are generally non-dischargeable in bankruptcy. Think of it as a tradeoff: the government lends nearly anyone looking to better him or herself through education money to go to school, but expects to be repaid no matter how dire the person’s situation becomes later in life. The “undue hardship” required to fit into the exception to the rule must be severe; I have heard it said that unless the debtor is on a respirator that is about to be shut off for non-payment of a power bill, it is a waste of time to try.

However, what a debtor usually CAN do is consolidate his or her debts into a Chapter 13 plan and work the repayment of a student loan into the plan, along with his other debts, in an orderly manner without being harassed by the creditor for payment. Any efforts to collect the student loan would stop while the plan is in place (usually five years), and without bankruptcy protection, those efforts can be severe – wage garnishments, tax refund seizures, and the addition of penalties and fees. Any balance remaining on the student loan would have to be paid after the Chapter 13 plan ends, but typically by then other unsecured debts are discharged and the debtor’s income has (hopefully) increased, so that he or she has more income available to afford the student loan payments.

So, the bottom line – bankruptcy cannot get RID of student loans, but by bringing order to the rest of a debtor’s financial condition, it can make them more bearable.

If you or someone you know is in financial distress because of student loans, call our firm for a free consultation, or visit Leone Noble & Seate, LLP to learn more.

Attorney Mike Rothrock Advises Enloe High School in Mock Trial Competition

Attorney Mike Rothrock of the law firm Leone Noble & Seate, L.L.P. recently participated as an attorney adviser for Enloe High School in the Wade Edwards High School Mock Trial Competition held in February. The competition is sponsored by the North Carolina Advocates for Justice and is a state-wide educational program that provides students an opportunity to learn about the legal system from legal professionals. Students play the roles of attorneys, witnesses, and bailiffs in the competition as they simulate the real trial of a fictional case in actual courtrooms.


As part of the learning experience, local attorneys volunteer to work alongside teacher coaches and advise student teams as they prepare for the competition in the months prior to the competition date. Regional competitions took place in February in ten cities throughout North Carolina. Enloe High School, located in Raleigh, had two teams that competed in the regional competition held in Durham, North Carolina.

Mr. Rothrock heads up the firm’s personal injury litigation division, but also devotes part of his time and practice to various activities that further public education regarding the legal profession. “I think it’s the responsibility of lawyers to give back to their communities and help educate the public about the legal process and system,” said Mr. Rothrock of his desire to volunteer his time to these types of activities. Two students advised by Mr. Rothrock took “Best Attorney” and “Best Witness” awards in the competition. You can read more about Mike Rothrock at his Litigation Blog.

Leone Noble & Seate is a firm dedicated to defending the rights of those injured on the job or in auto accidents and those looking for a fresh start through bankruptcy. Beth Leone Noble and Jennifer Seate formed Leone Noble & Seate in 2006. Leone Noble & Seate is an AV rated firm by Martindale Hubble. The firm’s offices are at 7100 Six Forks Road in North Raleigh. You can read more about the firm’s pro bono and community service work on its website.

Baby Car Seats

So yea!  My cousin Mike and his lovely wife Lisa just welcomed their first baby, Lyla into the world yesterday (yes, that's the little munchkin in the photo).  Even though she was four weeks early, they were well prepared and had everything already in place for this special day.  It got me to thinking about car baby seats and what a monumental decision that is in choosing something that you are entrusting your child's life to.  So I went to the handy-dandy Consumer Reports website and I am linking a recent article they did on Convertible Car Seats.  In reading the article, I was shocked to see that car accidents are the leading cause of deaths in children under the age of 14.  However, car seats can reduce the chance of fatalities in infants by 71%.  That is huge!!!! So don't let your child be a statistic.  If you are in the enviable position of expecting a little bundle of joy, take the time to research your choices and choose a car seat that will keep your baby well protected. And let me just say.. great job Lisa and Mike!  She is beautiful!!!

I was injured on the job. I have a workmen's comp claim, right?

Well, that depends. The Workers’ Compensation Act covers “injuries by accident arising out of and in the course of employment.” [NCGS 97-2 (6)] While that definition sounds simple enough, it really isn’t. The statute further provides definitions to explain each of the terms of that “simple” definition. First you must have an "accident" which causes an injury. We all generally know what an accident is. But by defining a workers' compensation injury as an injury by accident, it suggests that any injury that occurs during your normal work routine is not covered under the Workers' Compensation Act. That doesn't seem very fair, does it? Well, that's just the half of it.

In addition to the injury having to be caused by an accident, that injury must also arise out of AND in the course of employment. Now what the heck does that mean? To arise out of and in the course of employment, there must be a reasonable relationship between the injury and employment. The injured worker must have been performing some activity that is authorized by the employer or benefits the employer's business in some way.

Now I'll admit, I've overly simplified the explanation of a injury by accident that gives rise to coverage under the Workers' Compensation Act. There has been numerous litigation over the various nuances and interpretations of the law which has resulted in exceptions to the general rule. For this reason, I suggest that you speak with a workers' compensation attorney if you are ever injured on the job. The attorney will be better able to discuss with you whether you indeed have a compensable injury.

Patrice Ray Participates in Community Service Program

Attorney Patrice Ray of the law firm, Leone Noble & Seate, LLP participated in the community service program, Project Grace on Saturday, March 13, 2010. Project Grace was co-sponsored by the Young Lawyers Division and the Aging Committee of the North Carolina Bar Association. Volunteer attorneys and paralegals assisted members of the community with executing Healthcare Power of Attorneys and Living Wills. The program was held at Campbell Law School in Raleigh, North Carolina.


Ms. Ray heads up the firm’s workers’ compensation division but also devotes part of her practice to various pro bono activities to help represent people without the financial means to afford legal representation. She has been recognized in the past for her work with N.C. Legal Aid where she assists victims of domestic violence. Ms. Ray volunteered for Project Grace after recognizing a strong need within her own family to make sure everyone was protected with a Healthcare Power of Attorney and Living Will.

Leone Noble & Seate is a firm dedicated to defending the rights of those injured on the job or in auto accidents and those looking for a fresh start through bankruptcy. The firm recently expanded its practice to offer online legal forms and advice (including Healthcare Powers of Attorney and Living Wills) at competitive rates. Beth Leone Noble and Jennifer Seate formed Leone Noble & Seate in 2006. Leone Noble & Seate is an AV rated firm by Martindale Hubble. The firm’s offices are at 7100 Six Forks Road in North Raleigh.

HELP!! I'M OVERWHELMED!!

Last week, I had the great joy of hosting my family from Pennsylvania who came down to enjoy a game of hockey between the Carolina Hurricanes and the Pittsburgh Penguins. I had 9 drive in Wednesday night and they all crammed into my house. I had another 50 family and friends, (yes, that’s right… 50) drive over from Jacksonville on Thursday. We had time to hang out together at my house, have some awesome food (had to serve good ol’ Carolina BBQ to my Yankee family), and then went on to the hockey game. Now luckily the 50 went back to Jacksonville right after the hockey game, but the other 9 stayed with me through Saturday and it was wonderful… simply wonderful… to hang out with my cousins who are just a ton of fun and who I don’t get to see often enough. But come Saturday morning, boy was I beat! I was sad to see them go, and yet, happy to see them go. In hindsight, I realize how overwhelming the last three days had been. I was going non stop, answering questions, providing answers, getting stuff for people, making sure everyone was comfortable and well fed. Here is an example of an average 5 minutes around all my guests…



Q: “Where do you keep your towels?”
A: “Upstairs linen closet.”

Q: “Is there any more toilet paper?”
A: “Yes, I believe in providing my guests with as much toilet paper as they need.”

Q: “Do you have any potato chips?”
A: “As a matter of fact I do… let me get those for you.”

Q: “What do you call those little flowers poking out already? We never have flowers this early in Pennsylvania.”
A: “Those are called Daffodils and they are a sure sign Spring is just around the corner.”

Q: “I’m cold. Do you have an extra blanket.”
A: “I’m on it…. but I would think being a Northerner this mild North Carolina weather would be perfect for you.”

And so forth, and so on…

Now, to the skeptical reader, it may seem that I am bashing my family. Far from it. They know I adore them. I thought I’d relay this little experience o’mine because being overwhelmed is why many people hire me to represent them after an automobile accident. When they are getting bombarded with questions, asked to provide information, getting slammed left and right by the insurance adjuster, it gets downright daunting to say the least. I’ve said it before, and I’ll say it again… not everyone needs to hire an attorney. But a darn good reason to do so is when you are just feeling overwhelmed and out of your league. There is nothing wrong with asking for a bit of help. Now that I’m thinking about it, maybe I should have told them to find their own towels and toilet paper!!! Next time…

But what about my pain and suffering?

I am often asked by worker’s compensation claimants whether they are entitled to pain and suffering as a result of their work-related injury. They are often dismayed to find out that they are not. Pain and suffering is not a remedy provided for under the Workers’ Compensation Act. The Act provides for payment of medical compensation and bills, some of your lost income, and payment for permanent disability.

Why isn’t pain and suffering provided for by the Workers’ Compensation Act? Well, to answer that question, you would have to look at the legislative history of the Act. Before you roll your eyes and sigh heavily, don’t be alarmed. I am not going to bore you with a history lesson—mostly because it’s been a long day. Basically, the legislature set up the Act to mandate that employers would provide coverage for the medical expenses, partial lost income, and payment for permanent disability. In exchange, the injured worker “agrees” not to sue the employer for his or her injuries. Essentially, rather than having to first prove your employer was negligent prior to recovering any benefits, you only have to prove you were injured while working. Often, that is easier said than done, but I’ll discuss that in a future blogs. Don’t get me wrong. That is not to say that an injured employee cannot sue his or her employer if the injured employee’s injury results from the employer’s negligence. This type of claim is allowed but only in limited circumstances, but I’ll save that discussion for another day.

If you have any questions regarding a potential workers’ compensation claim, even about pain and suffering, please feel free to contact me.

How Hard Have You Been Hit?

We conducted another online poll recently, focusing on the economic slowdown.  We asked visitors, "How have you been affected by the economic slowdown?"

32% - were hit hard and could not pay their bills
54% - needed to cut back a little
14% - reported no change or were better off

How frightening is it that 86% of folks responding have had their lives affected in some way by what has happened with our economy.  And while this was not a formal Rasmussen poll, you could probably say that 8 out of 10 of your friends are hurting right now.

Now I have been in the business of helping automobile accident victims for many, many years.  Almost a year ago, our firm decided to branch out into bankruptcy.  It was actually something we had wanted to do for awhile and seemed like another good way for us to build our practice.  What I did not count on was how heartbreaking it has been to see the suffering that has fallen on good, honest and hardworking people.  Those that file bankruptcy are truly at their wits end and have nowhere else to turn.  After talking with our clients, I have found that most people are in this predicament because they either 1) lost their job, or 2) had no health insurance and got hit with large medical expenses that they could not pay.  The hardest part for us is when we have to deliver the news that the only way to get out of their current situation is, in fact, to file a bankruptcy.  That is such a difficult decision for a family to make.  Alot of who we are is often tied up in our ability to succeed and support ourselves and our family.  This can be a crushing blow to many people.  It is my hope that more people understand that filing bankruptcy does not make you a bad person, it does not make you a failure, and it certainly does not reflect on who you are at the core of your being.  It is merely a way for you to take advantage of laws that were designed to protect people who have fallen on very hard times through no fault of their own.  Are there people that take advantage of the system?  I'm sure there are.  But I have found for the greater part that the people that need bankruptcy help are doing so only as a last resort and only after having worked extremely hard to make it on their own.  If you know someone that has filed bankruptcy, or is thinking about it, be sympathetic as it is probably one of the hardest decisions they have or will face in their lifetime.

Staying Safe... After an Accident

I was driving home from work the other night heading north up Six Forks Road.  As I was approaching the intersection of Six Forks and Strickland, I noticed a disabled vehicle in the middle turn lane.  And I use the term "notice" loosely.  I actually did not see the vehicle until I was probably a car length away from it.  It had no lights on and I caught a fleeting glimpse of movement at the rear of the vehicle which I immediately realized was a person.  I thought to myself, had I needed to turn left onto Strickland and needed to merge over into that turn lane, I probably would not have been able to stop in time from hitting that vehicle (and even worse, the person that was standing to the rear).  It immediately brought to mind a case I handled several years ago when we represented a young man who was tragically killed in just the same circumstances.  His car had become disabled at night while in the roadway.  He called the police and stood at the rear of his vehicle waiting for help to arrive.  Another motorist coming along did not see the young man and hit him, crushing him between both of the vehicles.  Mercifully, he had a quick death but that did not do much to allevaite the suffering left behind to his family and friends.  We toiled and fought to get a decent settlement for the young man's estate, but that is not the purpose of this post.  The purpose is to remind everyone that you are still in danger after you have been in an accident.  Take these steps to ensure your safety continues:

1.  If you can, get your vehicle safely off the roadway and as far away from traffic as possible.  Stay inside your vehicle. It will at least add some protection to you should another vehicle veer off the roadway and hit you.
2.  Call for help as soon as possible.
3.  If it is nighttime, immediately active your emergency flashers to warn oncoming motorists.  It helps to put your flashers on in the day too, but it is imperative you do so at night.
4.  If your vehicle is stuck in a travel lane and you cannot remove it from traffic, do NOT stay in the vehicle and do NOT stand near the vehicle.  Get as far away from traffic as possible and wait for help to arrive.

Hopefully following these few tips will help you if you should be in an accident that strands your vehicle.  Stay safe!!!

Property Damage

We want to provide some information on what you need to know about property damage claims:


If your car can be repaired:

• The insurance company is responsible for the cost of reasonable repairs to your vehicle. This may not be the estimated amount from the repair facility you choose. If the company can have the repairs done at a lower cost, they are allowed to do so and you can pay the difference if you still want to use the repair facility of your choice. If your repair facility gives you a different estimate, have your repair facility call the property damage adjuster directly, as many times the insurance company and the repair facility can work out the difference.

• The insurance company can also run an estimate using after-market parts in the repair of your vehicle as long as the part is equal to the original part in terms of fit, quality, performance and warranty. If you refuse to use after-market parts, you pay the difference.

• The insurance company can deduct depreciation when they allow for an entire paint job or items such as tires and batteries, when the damage was only to a portion of the item and a full paint job wasn’t needed or the tires and batteries were old and near replacement. Depreciation is the decrease in the value of the vehicle or part because of age or wear and tear.

• Once your vehicle is repaired, you can make a depreciation or diminution in value claim against the insurance company. This means you ask the insurance company to pay you the decreased value of what you could have sold your car before the accident to what you can sell your car after the wreck. You will need proof of how much your car depreciated in value to make this claim.

• You should notify the adjuster immediately once your vehicle is repaired, in writing.

• You are entitled to be reimbursed for loss of use of vehicle for the reasonable time it takes to repair your vehicle. The insurance companies will not pay for delays on your part or on the part of the body shop you chose to use. Most insurance companies try to get you in a rental vehicle as soon as possible, but they are not required to put you in a rental; they are only required to reimburse you for the loss of use incurred for a reasonable period of time to repair your car. The rental agency can require you to provide proof of your own insurance as most insurance companies will not pay for the insurance the rental agency requests you pay. If you have your own collision coverage, you are not required to purchase the insurance from the rental agency.

If your car cannot be repaired:

• If the damage to your car is equal to or exceeds the total cost of repair or exceeds 75% of the actual cash value (ACV) of your car, the company can call your vehicle a total loss. They pay you the ACV less any liens against the vehicle. ACV is the market value of your totaled vehicle at the time of the wreck for the condition that it was in.

• You can determine ACV by using the local market price of a comparable vehicle or getting 2 qualified dealers in the area to submit statements of the value of your vehicle.

• The insurance company does not have to provide a rental car if your car is totaled. Most companies do as a courtesy to you.

• You have the right to allow the company to “total your car” and pay you the value less the salvage rights. You can negotiate this amount. This is what a salvage yard would pay for the wrecked vehicle.

REMEMBER:

The insurance company has 30 days to pay the claim, make an offer, deny the claim or assert they are investigating the claim. If you experience any trouble, you do have the right to use your own collision insurance carrier to pay the claim (you will pay a deductible) and then let the two companies fight it out. If you do not have collision insurance, your only recourse is to file suit. Thus we recommend trying to resolve differences if you can!

Uninsured Coverage

In a recent web poll conducted by Leone Noble and Seate, we found that 35% of people have been hit and injured by an uninsured motorist (someone driving a vehicle without carrying liability insurance coverage).  This is a frightening statistic as this could leave many people unprotected if they are injured as a result of someone else's negligence.  North Carolina requires by law for all motorists to carry liability coverage on their vehicle in an amount to equal at least $30,000 per person and $60,000 per accident.  Sometimes people will purchase insurance for their vehicle, and then will let it lapse through non payment of their premiums.  This leaves people out there riding the North Carolina highways with nothing to protect innocent victims.  Luckily, North Carolina does provide for the ability to carry  "uninsured" motorists coverage on your own policy.  This helps to protect you in case you are injured by someone that fails to carry insurance on their vehicle.  At a minimum you should carry $100,000 in uninsured motorists coverage but ideally $1,000,000 would be the best coverage you can get.  Take a moment... review your declaration page... call your insurance agent to discuss.  We are also happy to offer free reviews of your declaration page and offer advice as to whether you are carrying sufficient coverage to protect you and your loved ones against an uninsured driver.  Go to our Online Legal Forms and Advice Store and upload your declaration page.  We will review it free of charge and provide you with advice on your coverage.

You Don't Always Need A Lawyer

Yup... sounds strange, doesn't it?  A personal injury lawyer saying, "you don't always need a lawyer".  Well, it's true.  When someone has been in an accident, they don't always need to hire legal counsel to help get their claim resolved.  There are times someone can easily and efficiently deal with an insurance company and get a fair settlement.  So what does that type of claim look like?  It's probably better to look at some of the reasons people hire lawyers in the first place to understand when you don't need a lawyer. Those reasons often include:

1.  Disputed Liability - this is when the insurance carrier is refusing to accept responsibility for your claim.  Most often the insurance company will claim that you were partially at fault in causing the accident (also known as contributory negligence). This usually forces a person to either abandon their rightful claim, or hire an attorney to fight the insurance company.
2.  Disputed Injury - this is when the insurance company does not believe you were injured.  They will pick apart your medical records, dredge up information about your past health and look for any way to claim that you could not have possibly been injured in the accident.  A popular claim by the insurance company is to say that based upon the amount of property damage to your vehicle, the force of the impact was insufficient to cause you injury.
3.  Complex or Lengthy Medical Treatment - usually, the higher your medical bills are, the more your claim is worth.  Thus, if you get any form of extended treatment past the emergency room, the insurance company will start looking for ways to discount your continued treatment.  They may claim that you waited too long to seek medical attention after the accident, or that it was not medically necessary for you to seek additional medical treatment.  Lately, almost every visit someone makes to the doctor seems to be a battle with the insurance compaines. 
4.  Unreasonable Insurance Adjuster - this is that person assigned to help you with your claim (the word "help" being a bit laughable).  Never forget... this is the person that has been hired by the insurance company to get your claim resolved as quickly and as CHEAPLY as possible.  They are not on your side.  You are not in good hands.  They are not a good neighbor.  They can be rude, dismissive, unreasonable, unresponsive and distrustful of everything you say.  Now, I know there are nice adjusters out there.  My law partner was an Allstate adjuster and she was extremely nice to deal with when she was on the opposite side.  But she will tell you as well, the insurance adjuser is NOT looking out for your best interest.  They are looking out for their employer's best interest.

So these are the main reasons we see people calling us for help, not to mention it is time consuming and stressful to have to deal with all of it.  Now for the real dirt... when don't you need an attorney?  You probably do not need an attorney if you are in a very clear liability accident, the insurance company is not disputing that liability, and you are not injured.  Typically, that may look like a rear end collision and you choose to go to the emergency room to get checked out.  You may be sore and stiff for a few days, but by the 3rd or 4th day you are 100% fine with no residual pain.  In that scenario, you probably can handle your claim with the insurance company on your own with little to no effort on your part.

However, let me offer just a few "bewares":
1.  Make sure you are 100% injury free.  Once you settle your claim, you are forever barred from coming back and making additional claims. As such, we do recommend people wait at least 30-60 days before they attempt to settle their claim to ensure hidden injuries do not surface.
2.  If you are in any way hurting or in pain, even if it is nominal, you should get medical treatment.  The longer you wait, the more reason the insurance company has to deny your claim.
3.  Make sure you claim to the insurance company 100% of your medical bills, even if paid already by medpay or health insurance.  You are entitled to be reimbursed the full amount of the itemized charges, not the balance due after other insurance payments.
4.  Make sure you claim a reasonable amount for your pain and suffering.
5.  Never hesitate to contact an attorney and ask if the final offer by the adjuster is a reasonable one.  We get calls all the time from people just wanting to know if they should take an offer and we are always glad to evaluate your case for you.

Bottom line.. we do not take every case that comes in our door.  We would rather tell people how to handle it on their own if they can and save them the attorney fee.  By the same token, we will always be up front with those folks that we believe need an attorney's help and protection.

Can You Be Fired For Filing a Workers' Compensation Claim?

Often, injured workers’ wonder what will happen to their jobs if they choose to pursue their protected rights under the Workers’ Compensation Act. This is particularly true given the recent economic troubles that the nation has faced in the last several years. Jobs are hard to come by and the last thing that an injured worker wants to do is lose their job because of a workers’ compensation claim.


In 1992, The North Carolina General Assembly enacted the Retaliatory Employment Discrimination Act (REDA). This act protects employees or anyone acting on behalf of an employee against any retaliatory acts related to rights protected under the Workers’ Compensation Act, the Occupational Safety and Health Act, the Mine Safety and Health Act of North Carolina, and the Wage and Hour Act of North Carolina . REDA defines a retaliatory action as “discharge, suspension, demotion, retaliatory relocation, of an employee, or other adverse employment action taken against and employee in the terms, conditions, privileges, and benefits of employment.” The protected rights include filing a complaint or claim, initiating an inquiry, investigation, inspection or any other proceeding, testifying or providing information to any person with respect to any of the acts listed above .

So what does this mean for the injured worker? This means that should you file a workers’ compensation claim, your employer cannot fire you, demote you, suspend you, or move you to another position or job location, merely because you have instituted a workers’ compensation claim. If the employer does take such action against you, the employer has to prove with the greater weight of the evidence that it would have taken the same action in the absence of your workers’ compensation claim .

If you have any questions about whether you have been a victim of employment discrimination, you should contact the North Carolina Department of Labor Employment Discrimination Bureau. Should you have questions about your workers’ compensation claim, you need to contact an attorney who can explain your legal rights as an injured worker and discuss your claim.

Contributory Negligence - Is It Fair?

North Carolina has a little known law by most people called Contributory Negligence.  In it's barest terms, it means that if you are in an accident that is someone's fault, and you are in any way also at fault, you can recover nothing... nada... zip!  Even if you were only 1% at fault!

So, say you are at a stop light and you are going to make a left hand turn.  Your light turns green (green arrow).  Even though you have the right of way, you look to the left, then to the right to ensure no one is coming, and then you enter the intersection to start your left hand turn.  At the same time, an 18 wheeler is coming from your left.  He comes around a curve which prevented you from seeing him on the first look to the left.  He is speeding, not paying attention, and blows right through the red light crashing into your vehicle and causing you very serious injuries.  The truck driver is clearly at fault for running the red light... you should be able to recover monies from that trucker's insurance company for your devastating injuries.  It's clear, right?   WRONG!  You may be held accountable for just a tiny fraction of fault for failing to look left a second time after looking right to continually ensure that the intersection was clear.

Because of the law of contributory negligence, there are many insurance companies who would deny your claim simply for failing to look back left again.  Now you should see the problem with this law.  It gives an opportunity for fair and just claims to be denied by the insurance companies.  So in this scenario... your claim gets denied, you then have to hire an attorney who would be willing to file a lawsuit on your behalf, and take your claim through a lengthy process in the court system to try to recover for your injuries... all because you didn't look left one more time.  Is that justice?  This is just one of a host of insurance issues that can cause you stress to deal with.

Liability Insurance Coverage

So this is our first blog entry and I pondered, and I fretted, and I pondered some more, and I couldn't think of what should be the first topic I should discuss.  And then it hit me... what do most people want to know about when they are in a car accident?  They want to know "who is going to pay for my car?"  or "who is going to pay for my injuries?" 

Essentially, North Carolina is a "fault based" state, meaning everyone is required to carry liability insurance coverage.  This coverage will pay if you are involved in an accident and it is your fault.  Conversely, if you are injured in an accident as a result of someone else's fault, you will be making a claim against the liability insurance coverage.  You are entitled to be reimbursed for various things such as your medical bills, lost wages and pain and suffering to name a few.  If you have been injured by someone who carries no insurance coverage, you will then look to make a claim with your own insurance company using your uninsured motorists coverage.  Our biggest advice... do NOT settle your claim with the liability insurance company until you are 100% recovered from your injuries or you have been given a permanent impairment rating by your doctor (at which point you will have a future damages claim).  Because once you settle your claim, you are forever barred from coming back and making additional claims.

There are alot of other insurance coverages that may or may not apply to your claim (more to come in future blogs).  If you ever have any doubts as to the insurance that is available to you, contact a qualified attorney to discuss your rights.