The Conference Room--Answers to Questions on N.C. Law

My Not-So-Hero, Zero

There has been a lot of justifiable backlash over “zero tolerance” policies for weapons at schools. The tale of the cub scout proud of his pocket knife with fork and spoon has prompted many people to cry out “where is the common sense of these school officials?” My practice really isn’t geared to this type of litigation (although I know attorneys who do) but I’d like to make the connection between these zero tolerance policies and some types of tort reform.

Zero tolerance for weapons in schools sounds like a great idea. Don’t let anybody wiggle out of the rule because of their race, wealth, Mom is the principal, or anything else. In practice though it requires a third-grader to be suspended because her grandmother sent a birthday cake to school, and a knife to cut the cake for the teacher. With zero tolerance, there is no room for common sense. It is a robotic and undemocratic rule of law.

Caps on medical malpractice damages or pain and suffering damages is also a form of this zero tolerance. The jury system allows ordinary citizens to come and decide after a judge explains the law, what the facts are of a case. Part of the facts is what actual damages does this person show? Sometimes, if they find maliciousness, they can also answer, what amount would punish this person or corporation enough that they won’t do it again? (punitive damages) Then the judge, after his ruling, can apply his own common sense and order a new trial if the jury’s verdict are far out of line with what the facts are that were presented. A cap on damages is a state legislature deciding, without hearing any facts of a case, and possibly years before the case even occurs, that some amount of money is too much, even if a jury and judge who hear the actual evidence and circumstances think otherwise. A unanimous jury verdict is the purest form of democracy that any of us will experience. An inflexible cap or rule, is the opposite.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

How to Go to the Doctor

The following is an excerpt of an article written for paralegals and attorneys by Steven Glass, a retired personal injury attorney from Florence, South Carolina, concerning the lack of attention that attorneys, and their clients, sometimes pay to the client's treating physicians. Mr. Glass points out that the attorneys should be aware of their client's medical treatment, how their injury affects their lives, and help their clients communicate with their doctors.

I always tell my clients to tell the truth to the doctor; it helps the lawsuit and more importantly, helps their health. However, I do instruct them to tell the complete truth to their doctor. Usually the problem I run into is the patient who minimizes his complaints, not the client who exaggerates. Months or years later, when the defense attorney is quizzing the client about their symptoms, the lack of medical record history paints a false picture that the injury or pain was less than it actually was, or worse, was not caused by the accident at issue in the case. Patients only tell the doctor about the bad knee pain, and don't "bother" him about the neck pain that doesn't seem so bad. But six months later when the knee pain is gone, but the neck pain lingers, it appears that it just happened. I've had clients who don't mention back pain to their family doctor, who records "no complaints," because they think he doesn't need to know because they are seeing a chiropractor for the back.

Mr. Glass advocates an even more active roll for the attorney in the medical treatment, with direct communication in person or by letter to the doctor to make sure that these symptoms are recorded and treated. An attorney must balance this strategy with the understanding that any letter may very well end up in the defense attorney's hands and could be used to attack the credibility of the treating physician at trial.

Have you ever had a doctor who continually seemed to minimize the injury in office notes,  time after time reporting improvement and minimal difficulty?  In many cases in which the injury is minimized medically because of failure to convey sufficient information, the result is inaccurate diagnosis and treatment. After years of practicing law I learned that it was important to teach clients how to go to the doctor. Most clients do not realize it that when the doctor asks, “how are you today”, this is not a social exchange and the reply will be recorded. By making it a practice to prepare a client for the doctor’s visit many potential catastrophes can be avoided, and accurate depiction of the effects of injury can be medically documented. Additionally learning the real day to day difficulties the client is experiencing and having it related to the physician will dictate what medical care is ordered. Having a physician order counseling, or additional testing, or being concerned about continuing employment can add considerably to the value of the case and too often the client does not relate what could be important to the physician for effective treatment. This causes cases to lose value.

Doctors are human too, although lawyers are not sure, and with the little time patients are allotted face to face medical care, the client must briefly be able to communicate to the physician the effects of injury to daily life. The effect of an injury on daily activities tells a doctor more than the normal physician questions of describe the pain, its severity, where it is located, etc. The average physician pressed for time will rarely ask, “ what activities increase pain or maybe more importantly, “ what activities performed over what time period increase the pain level and diminish the ability to perform?” The next question should become “what activity performed over what time period makes it impossible to continue?” The point here is that the physician’s idea of the scope or ambit of what constitutes medical responsibility and time limitations will not result in clarification of the extent of the injury and its effect on the patient. Many attorneys see themselves as separate from medical care and the patient’s limitations and long term outcome can readily fall between the cracks. The solution seems to lie only with the proper training and preparation of the patient.

I have had clients that could not eat with the family as mealtime was either too uncomfortable physically or emotionally. I have had clients who could not sit through a thirty minute television show. I have had clients who could not ride in a car over one hour without getting out and walking or who simply stopped going on outings at all. Learn what a trip to the mall is like, know if the client was able to attend a wedding, help out at a garage sale, attend school meetings. In these crevices is the fodder that will give a doctor concern or compel a claim’s adjuster or jury jump. Learn early signs of depression, these will have no value if not treated and documented.

Given that the above facts are determined and gathered, often times they can be communicated to a physician by letter or in person, either to help determine treatment or in consideration of referral to more specialized or intensive care. The physician simply does not have time to gather this information. As trial attorneys know, physicians have limited time to spend with patients and given the imbalance of power, most patients are reticent about communicating information or are unable to determine what is important for the physician to know. While some physicians might take offense at such communication, such a letter can impart professionalism and lead the physician toward thinking of the communication as forming the basis of essential teamwork leading to the best result for the patient.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

Are We There Yet?

Just recently the family and I loaded up the Family Truckster and headed north past Richmond, Washington (which some in my family refer to as "Occupied Virginia"), Philadelphia, New York, and finally to Old Lyme, Connecticut to visit for a few weeks, members of my wife's family. From the time we left my driveway to 14 hours later, I heard the phrase every time I tapped the break, "Are we there yet?" How do they know this phrase, I think? I never taught it to them, and it is one of the biggest kid cliches out there, yet it always happens.

In a similar vein, although without the whining, one of the first thing clients, and particularly personal injury clients ask is "How long will this take?" Unfortunately, I can give the kids in the Truckster a more definite answer (and a juice box) than I can my clients. For the personal injury and car accident cases, after you get accident reports and do a scene investigation, the hold up is medical rather than legal. The client has to get to a point in her medical treatment that she has gotten better, or her doctors are reasonably certain she is as good as she will get. The reason is that before you start filing a lawsuit, you want to try and settle with the insurance company. They are not going to give any money based on what you "think" will happen or what "might" happen, they need to at least know you have enough evidence to get to a jury trial. When you do settle, you can't go back later. So if you accept a settlement from an insurance company and a month later your doctor tells you you need surgery, you can't go back. (This is another reason why personal injury attorneys warn injured people not to settle right away with an insurance company, even if they want to just "get it over with.").

So that process may take a few weeks or a few months, it just depends. Then, after you get the report that the client has reached maximum medical improvement, you have to order the medical records. This can take awhile, and usually I'll have to make multiple requests before the creaky bureaucracy of a hospital or a slammed office manager of a family physician can get me my request. Expect a delay of at least 30-60 days for the records.

After that, you make a demand, and it will take another month before you get to a settlement with the insurance company or decide to file a lawsuit. (that's assuming they don't ask for additional medical records that you don't have). When you file a lawsuit, there is a flurry of activity getting the Complaint prepared and then you wait for the Defendant to answer. In North Carolina, the Defendant has 30 days, but count on 60 because they always get an extension to answer. You'll again have long stretches where it seems nothing happens along with spikes of activity--answering discovery, the client's deposition, perhaps a motion for Summary Judgment. Until finally, a jury trial. I usually tell my clients that in the areas I practice, count on roughly a year from the date of filing the Complaint, to a jury verdict. In the rare cases where there is an appeal, that could drag on another six months to a year.

One thing I do try to remember is that while I know what needs to be done right away, what can wait, and when a case is "moving" or "stalled." My clients don't have that knowledge. Also, while I have a lot of cases, each of my clients only has one. They want to be assured that I am actually working on their case as quickly as I can, and very few clients are unreasonably demanding of my time. The best thing that works for me is to let them know when something is going on, and, more importantly when something isn't going on and I'm waiting for medical records or discovery or an Answer. The second best thing is actually take their phone calls. A five minute conversation about the only case they have is something each client deserves, even if it does sometimes feel like you are answering "Are we there yet?"

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

There is a Lawyer in My Mailbox!

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If you have ever been in a car accident in North Carolina, you may have been shocked at the amount of mail you suddenly get. One of my clients recently got into an accident and brought into my office stacks of letters and documents from attorneys, some hundreds of miles away, asking to represent her in her personal injury lawsuit. Other than a few chiropractor letters for accidents, or mortgage refinancing letters every time you buy some property, I don’t know of any other business or profession that relies on this type of targeted direct mail.

These attorneys (and chiropractors) are able to do this because accident reports are public records. In years past, attorneys or sometimes a paid third-party service would hang by the courthouse or police station getting copies of the accident reports as they came in. Thanks to the Internet, it is even easier now with the reports readily available. In my hometown of Wilmington, the reports are available here. Accident report in hand, the lawyer or his staff can send out the canned letter or package to arrive at your door almost before you get home from the Emergency Room. This practice may get a bit harder soon as there is a new bill in the NC House that would allow a person in a accident to opt out of receiving any solicitation from that report.

One reason why lawyers use this type of direct mail solicitation is because the North Carolina State Bar, the organization that regulates the profession, has strict rules about an attorney communicating his services to a non-client. The Bar is concerned about maintaining the professionalism of attorneys, especially in today’s climate and stereotypes of the “ambulance chasing” lawyer. However, the Bar can’t totally ban all types of advertising because the U.S. Supreme Court has ruled that would violate the 1^st Amendment and Free Speech. That is why lawyers are, with some parameters, able to advertise on TV, radio, billboards, and other places. Even more restrictive is direct solicitation where an individual is targeted for the lawyer’s services as opposed to a TV ad that is aimed at anybody who tunes in. Most direct solicitation of non-clients of lawyers is prohibited by the Bar, with the exception of the direct mail. Since direct phone calls, door-to-door, emails, and other direct solicitation is out, direct mail is the only route available. Even that is restricted; you’ll notice the big disclaimer on all that correspondence saying “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES.”

While I assume that these direct mail advertisements are effective for the lawyers who take advantage of them in finding good clients, are they effective for the potential client to find a good lawyer? Those ads are certainly a good starting place, just like yellow page ads, or legal websites, but don’t solely rely on them to choose your attorney.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

I ran out of gas. I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. An earthquake. A terrible flood. Locusts. IT WASN'T MY FAULT!

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The North Carolina Legislature is set to debate a new bill to end contributory negligence and adopt the Uniform Apportionment of Tort Responsibility Act   This is a pretty big deal in North Carolina and will impact a lot of people in years and decades to come and its flying under the radar of most people.  What the bill does is modify the rule of Contributory Negligence.

Contributory Negligence is a defense in a negligence action.  The basic idea is that if it is somebody else’s fault you are hurt; you can recover from that person. To get a little more in depth, Negligence refers to a person's failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury.  A person's failure to use ordinary care is negligence.  For example, if you are driving a car down Michigan Ave. at 100mph you were not exercising ordinary care and were negligent.  If you hit somebody because of that, they would have a negligence action against you.

Contributory negligence is the defense that says that if the person hurt was also at fault, she can’t recover.  So if you are speeding and hit somebody who was looking down trying to find a radio station and therefore didn’t see you in time to avoid the accident, you could argue they were also at fault and guilty of contributory negligence and if the jury so found, the person you hit wouldn’t recover anything. 

Defense attorneys, and I’ve been one, therefore could argue before a jury that if the Plaintiff (the injured party and the one bringing the action) was only one percent at fault, and the Defendant (the one answering for the action) was ninety-nine percent at fault, the Plaintiff couldn’t recover.  This sounds harsh and there have been a few work-arounds in North Carolina law that have sprung up over the years to alleviate it somewhat.  In addition, I know that (despite clear instructions from judges NOT to do this) juries will sometime do some deal making when they are trying to reach a unanimous decision, with the pro-Defense jurors voting for liability if the damages are kept down. 

All but four states, North Carolina being one, have gone away from the strict contributory negligence in favor of a modified version, also called “comparative negligence.”  This is what the new bill being debated will do if passed.  Basically, as long as the Plaintiff is less than 50% at fault, she can still recover, with the amount of her recovery lessened by the percentage she is found at fault.  So if a Plaintiff is found one percent at fault, and the jury finds her damages to be $10,000, she still gets $9,900.  Under the current law, she would get $0.  So that is a pretty big change in the way the law has been in North Carolina since Raleigh was a person and not a place.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Uninsured and Underinsured Motorist Coverage

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You might think that a recession and downturn in the economy have nothing to do with car and motorcycle accidents. After all, you have to stop at a red light and yield to oncoming traffic whether or not you have money in your bank account. However, while a driver who is cutting back on expenses may not be any more or less negligent because of that, it may affect his ability to pay.

When people start to cut expenses, one place they see to cut is their insurance costs. Although liability insurance is required in North Carolina, the minimum limits required are only $30,000 per person and $60,000 per accident. As the economy gets worse, more people will only pay a premium for the minimum coverage required. If you have a serious accident, with permanent injuries, $30,000 may not even cover your medical expenses, much less pain and suffering and future expenses. If the negligent driver has no personal assets, even if you can prove high damages, you probably won’t be able to collect it. One way to protect yourself is to have adequate levels of Uninsured and Underinsured Motorist Coverage.

Uninsured Motorist Coverage (UM) and Underinsured Motorist Coverage (UIM) is a bit complicated, and I would recommend you get the advice of an attorney familiar with the statute if you need to make a claim for it. However, basically, UM is part of your personal automobile insurance policy that pays you for your damages when the other negligent driver has no insurance. Similarly, UIM covers you for your damages in excess of the negligent driver’s liability coverage. For example, if a driver runs a red light and hits you, and you sustain medical bills and pain and suffering of $100,000, but the negligent driver only has $30,000 in coverage, once that $30,000 has been paid, your insurance company would pay the remainder.

In North Carolina, UM and UIM are required to be offered when you purchase or renew insurance, but you do not have to accept it. In my opinion, especially in these times, the dollars you save by not paying the added premium for UM and UIM coverage are not worth the risk of a bad accident with a negligent driver who has no ability to pay your damages.

Myth v. Reality in the McDonald's Coffee Cup Case

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After my last post and the video that followed, I got a few follow-up responses about the infamous “McDonald’s coffee” case that the video touched on.  I thought I’d give you a little bit more of the facts:

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonald's coffee in February 1992.  Liebeck ordered coffee that was served in a styrofoam cup at the drive-through window of a local McDonald's.  After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.) Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.
 
The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonald's refused.

During discovery, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's. This history documented McDonald's knowledge about the extent and nature of this hazard.

McDonald's also said during discovery that, based on a consultant's advice, it held its coffee at between 180 and 190 degrees Fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonald's quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonald's coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonald's had no intention of reducing the "holding temperature" of its coffee.

Plaintiff's expert, a scholar in thermodynamics as applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonald's asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving. McDonald's also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third-degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard.

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonald's coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonald's had dropped to 158 degrees Fahrenheit.

The trial court subsequently reduced the punitive award to $480,000—or three times compensatory damages—even though the judge called McDonald's conduct reckless, callous and willful.   (excerpted from “Commercial Litigation Section Newsletter,” American Association for Justice Vol.II, No.1, Fall 1997). 

These are the facts the judge and jury heard in rendering their decision.  I’m sure that they would have found differently if all their information came from Jay Leno, but luckily we don’t try cases on “The Tonight Show.” 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.    

You are the Brakes on a Runaway Jury

I wrote earlier about medical malpractice cases in North Carolina and why they are so difficult to start and win.  Briefly, there are special procedures in North Carolina to make sure that medical malpractice cases that are brought in the courts have merit.  Aside from those special restrictions, in every civil case in North Carolina, there are several brakes on frivolous lawsuits and runaway juries.  A North Carolina judge in every case in North Carolina has several opportunities through motions to dismiss, motions for summary judgment, and motions for directed verdict, to totally end a “frivolous” lawsuit before a jury decides.  In addition, the judge can even impose sanctions on a party or an attorney who brings a lawsuit without merit. 

 

Aside from the legal professionals, a jury of normal people, chosen by both sides of a lawsuit, hear the relevant facts and rule not only for who is at fault, but how much damages they should get based on the law the judge gives them.  It takes the unanimous consent of 12 people to award both liability and damages.   Think about that.  Get 12 of your friends together to go to lunch and propose some ridiculous extreme lunch idea, like “let’s drive to Raleighand eat at the McDonalds in the RDU airport!”  Do you think you could get all 12 of them to agree?  In a lot of jury deliberations, one or two jurors may want to give a claimant a large amount of money that is close to or outside the most the evidence would suggest, and others may decide that the same claimant get much less than the evidence shows.  What usually happens is the jury comes to a compromise number that is reasonable. 

 

On the rare occasions when they don’t, the judge has yet another opportunity to put the case back on a reasonable road.  He can render a judgment notwithstanding the verdict, or a new trial for an excessive verdict.  Then there is the appeals level, another opportunity for a case to be tossed out and sanctions awarded. 

 

What “tort reform” usually means is politicians in Raleigh decide that no matter what the facts of a case or the law of a case say, somebody’s damages are limited to an arbitrary amount.  With that, they are saying that YOU and your neighbor are not smart enough to listen to a judge, decide what the facts of a case say about how much a claimant should receive, and argue against anybody who is unreasonable, and that locally elected judges are not smart enough to stop a jury if it gets out of control. 

 

Below is a nice video that shows that the system works.  It briefly addresses the famous “McDonald’s coffee cup case” and shows how, once people hear some of the facts that the jury heard, they change their minds, and the “fancy pants” case about the judge who sued the dry-cleaners.  Everybody knows that the case was frivolous, but nobody seems to know that the system took care of it without any additional help from the state government. 

 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.    

Slip and Falls

The tragic accident that occurred at a New York Wal-Mart certainly gave another meaning to “Black Friday.”  According to CNN, lawsuits are being filed for customers injured in the stampede.  I can’t comment on their chances in New York, but, had the accident taken place in North Carolina, they certainly would have a claim worth investigating. 

Claims against stores or public places are called “premises liability” cases or, taking the name of the most common occurrence, “slip and falls.”  Sometimes people incorrectly assume that if they are in a store and get hurt, the store is responsible.  This is not true.  An injured person has to show some fault on the part of the store before she can recover.  The injured customer has to show that there was a dangerous condition that the store or its employees knew or should have known about and the store failed to warn people about it or fix the problem.  In the case against Wal-Mart, the argument could be made that the lack of crowd control devices, extra-security, or even just opening the doors a few minutes earlier than advertised created a dangerous condition.  Wal-Mart has also run into trouble in the past for stacking items too high and unsafe and causing them to fall on customers. 

The store or its employees don’t have to be the one to have created the condition.  Frequently in slip and falls, it is another customer or vendor who accidentally creates the condition.  Whoever creates the condition, if the injured customer can’t show that the store had actual knowledge of the dangerous condition and didn’t warn about it or fix it, she can prove that the store should have known about it.  The store has a reasonable amount of time to discover and fix or warn of the dangerous condition.  This usually requires some kind of proof of the passage of time of the condition.  If a customer slips and gets injured from a brown banana peel, that is some indication of the length of time it was on the floor and the argument can be made that the store should have known of that condition.  If the banana peel is yellow, the customer has much less of a chance of recovery. 

The second part of the fault equation in North Carolina is that even if the store was at fault, if they prove that the customer has some small fault of her own, she cannot recover.  If the customer knows there is a brown banana peel on the floor and steps on it anyway, or if the customer climbs a shelf for some merchandise and poorly stacked items fall, are examples of possible fault of the customer.  This is called contributory negligence.  In the Black Friday case, a North Carolina Wal-Mart may argue that the customer knew the crowds were or could be dangerous, felt people pushing or shoving, but took a risk and stayed in the dangerous mob.  If a jury believed that the injured customers were in some way responsible, they would not recover any money for their damages even if the store had equal or far greater responsibility.  Most states have gone to a form of "comparative negligence" that provides partial recovery for injured people even when they have some fault of their own.  North Carolina however still uses the old rule that if you are 1% at fault, you recover nothing.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Feel free to contact him at (910) 772-1678    

 

The Insurance Company Cookbook

This is an interesting article regarding one attorney's perspective on dealing with insurance companies in personal injury cases.  In  You are Not in Good Hands with Allstate the author talks about how Allstate and some other insurance companies use a computer program called "Colossus" to determine the minimum they would have to pay a claimant to maximize their profits.  Despite the sinister 1960's Star Trek image of a giant, brooding mainframe in the center of a strange planet, Colossus and other similar programs are real and can have a serious impact on anyone injured in a motor vehicle accident.

I have had experience both representing insurance companies and injured parties in car accidents.  Prior to Colossus, and with other insurance companies that have not followed Allstate's lead, the claim examiners who work for the insurance company, and the defense attorney have a lot of leeway in valuing and settling a case.  In addition, there seems to a human perspective that drives settlements that a computer lacks.  If the computer decides the case is worth $10,000, without any new data, it won't change.  If a claims examiner or defense attorney decides the case is worth $10,000, but they can get the case over and done with an additional $1000, they usually will do so.

In North Carolina, the legislature has recognized the problems of insurance companies using economic clout and the cost of litigation to low-ball injured persons by passing N.C.G.S. Sec. 6-21.1 .This statute allows a trial judge to award attorney fees for any verdict in a personal injury case involving an insurance company less than $10,000.  Since the jury isn't told about this provision, sometimes you have the absurd result of the defense attorney arguing for more damages from the jury to get just over the $10,000 line and the plaintiff's attorney arguing for less.  Nevertheless, it is one way that can allow a plaintiff to win without it costing him money.

If the injured party or his attorney doesn't want to go all the way through a trial, don't expect any offer from the insurance company to increase after the initial one without significant new evidence being developed.