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

What If...

I love alternative history stories. Things like “What if the Soviet Union had won the Cold War ?” or “What if JFK had not been assassinated?” I find fascinating and oftentimes help me better understand actual history. I even like alternative takes on imaginary history like “What If Spider-Man had been bitten by a radioactive ant?” or “What if Superman crash landed in Siberia instead of Kansas?” I think a lot of people think about “What if” everyday. “What if I called that potential customer back right away?” or “What if I hadn’t agreed to go on a blind date?” When people are faced with a traumatic event, their “What if” imagination goes into overdrive. “What if that nurse hadn’t noticed Mom was allergic to penicillin?” or “What if I had eaten that piece of glass in my food?” or “What if I hadn’t slammed on brakes when that guy ran the red light?” Those types of events seem so wrong and so full of danger, that they think there has to be a way to sue them.

Sometimes, those near-miss events are crimes and the person at fault can be fined or imprisoned. However, that doesn’t allow you to sue those people or obtain any money or any other relief for having that near-miss. The basic rule of damages for lawsuits is you can only get your “actual damages.” These damages can be “hard” damages, like medical bills, or lost wages; or “soft” damages like physical pain. But both types of damages actually happened to the injured person. You can’t get damages for “What if.” You can’t get damages for what might have happened, only what actually did happen. No matter how bad the possible outcome was you can’t recover. “I could have died!” is still only in the realm of “What if” and therefore not recoverable.

The flip side of this is something called the “thin-skull rule.” A person can recover all of their actual damages. “If he drove a bigger car, he wouldn’t have been hurt” or “If the patient didn’t already have a heart condition, the wrong medicine wouldn’t have hurt him” are not defenses for the person at fault. If you have or think you have a civil lawsuit, consult with an attorney but keep in mind that the best he can recover for you is what actually happened, not “What if.”

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices 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.

Medical Records

Under North Carolina law, a person’s medical records are property of the healthcare provider who created them. However, a patient has rights to get copies and/or inspect the records of his medical care. The patient may need them to provide to a different doctor or healthcare provider to help with additional medical care. Legal actions such as medical malpractice or personal injury also may require an inspection of the medical records to determine damages, pre-existing conditions, or causes of injury. Medical malpractice actions in North Carolina require an expert review all the medical records available before even starting a lawsuit. The federal Health Information Portability and Accountability Act (HIPAA) gives patients the right to obtain a copy of their medical records from any medical provider, with a few exceptions. According to HIPAA, you may request

• Your own medical records;
• Someone else's records if you are a designated representative with power of attorney or or otherwise written permission to act as their representative in accessing records;
• Someone else's records if you are their legal guardian;
• Your children's medical records, unless the child has consented to medical care and parental consent is not required under NC law, the child gets medical care at the direction of a court, or the parent agrees that the minor and the medical provider have a confidential relationship;
• Records of deceased persons in certain circumstances. If you are the personal representative of an estate -- either designated by a will or appointed by a court to settle a deceased person's affairs -- HIPAA gives you access to the deceased's medical records. In addition, if you are related to a deceased person and certain information in that person's medical file relates to your own health, HIPAA lets you access that information.

HIPAA gives patients the right to get copies of all of their medical records except for psychotherapy notes, information the provider is gathering and compiling for lawsuits, and medical information that the provider believes could reasonably endanger your life, your physical safety, or the safety of another person. If the provider denies your request for medical records, it should provide you with a denial letter giving the reason. In such cases, you may be able to appeal the denial. In addition, the North Carolina Medical Board provides that a physician has a duty to release a copy of the patient’s medical record to the patient or a representative of the patient even for purposes of personal injury or medical malpractice investigations and lawsuits. 

HIPAA requires medical providers to provide copies of medical records within 30–60 days of your request. The North Carolina Medical Board requires the records to be provided in a “timely manner.”

In personal injury and social security cases, the health care provider is limited by statute as to the amount they can charge for copies. Currently, the maximum fee for each request shall be seventy-five cents (75¢) per page for the first 25 pages, fifty cents (50¢) per page for pages 26 through 100, and twenty-five cents (25¢) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs. However, if they do charge for medical records, they waive any right they have for a lien on any proceeds from any lawsuit. For records requests for other reasons, the healthcare provider can charge a “reasonable cost-based fee.”

When it comes to identifying which medical records you want, you can be general or specific. Sometimes, patients want their entire medical file. But if you’ve seen the doctor over a long period of time and don't want to pay for copies of every immunization and preventative visit for the last 20 years, it might make sense to specify which part of the record you want. Some hospital will provide a “digest” which includes the most important parts of a record including operative notes, admission and discharge reports, lab reports and radiology reports. Even if you request a full record, you usually will not get copies of actual X-rays or CT scans. You have to request those specifically. You can also narrow your request by specifying records that cover treatment over a certain time period. Billing information is usually kept separate and is not considered part of the medical record, so if you want your bills, you need to specifically request that.

Once you get your medical records, you may notice they include reports from third-party providers, like specialists or radiologists. The documents from the third-party provider are what your doctor received, but they may not constitute all the medical records that the third-party provider's office has on you. If you need more information from the third-party provider, make a separate medical record request to that provider.

 -Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices 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.

 

Aggravation

Only seldom do I have a personal injury case where there was not a doctor or chiropractic visit sometime in the months or years prior to the event sparking the lawsuit. An injured plaintiff can only recover for damages that were actually caused by the defendant’s negligence. If the defendant can prove that a plaintiff’s injuries pre-existed his negligence, it lowers the amount of damages that he has to pay if the jury finds him at fault. In extreme cases, the jury can find the defendant was negligent, but caused nominal damages such as $1. The best argument by a plaintiff is that the new injury is not connected in any way with a prior injury or condition. Even if the injury is in the same location or the same condition, the law allows a plaintiff to recover for the aggravation or the exacerbation of the pre-existing injury. So if you had a small hernia, one that did not require surgery, just monitoring by a doctor, but after the defendant hit you with his car, the hernia gets larger and requires surgery, the jury can award an amount of damages based on how much it got worse.

I recently had this issue in a trial, and the typical, pattern jury instructions from North Carolina did not seem to address this issue. I did my research and drafted some additions to the appropriate pattern instructions. A copy of those is set forth below.

Proximate Cause - Definition; Multiple Causes

The plaintiff not only has the burden of proving negligence, but also that such negligence was a proximate cause  of the [injury] [damage].

Proximate cause is a cause which in a natural and continuous sequence produces a person's [injury] [damage], and is a cause which a reasonable and prudent person could have foreseen would probably produce such [injury] [damage] or some similar injurious result.

An injured person is entitled to recover all damages proximately caused by the defendant's negligence. When his injuries are aggravated or activated by a pre-existing physical or mental condition, defendant is liable to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's condition. Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737, 742 (1968).

There may be more than one proximate cause of [an injury] [damage]. Therefore, the plaintiff need not prove that the defendant's negligence was the sole proximate cause of the [injury] [damage]. The plaintiff must prove, by the greater weight of the evidence, only that the defendant's negligence was a proximate cause.

Proximate Cause - Peculiar Susceptibility

In deciding whether the [injury to the plaintiff] [death of the decedent] was a reasonably foreseeable consequence of the defendant's negligence, you must determine whether such negligent conduct, under the same or similar circumstances, could reasonably have been expected to [injure] [cause the death of] a person of ordinary [physical] [mental] condition. If so, the harmful consequences resulting from the defendant's negligence such as the aggravation of a pre-existing condition (Smith v. Buckhram, 372 S.E.2d 90, 94 (1988;  Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737, 742 (1968) would be reasonably foreseeable and, therefore, would be a proximate cause of the [plaintiff's injury] [decedent's death]. If not, the harmful consequences resulting from the defendant's negligence would not be reasonably foreseeable and, therefore, would not be a proximate cause of the [plaintiff's injury] [decedent's death].

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices 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.

Crash Reports

In North Carolina, the first investigation of any motor vehicle crash is by the police. In order to assist their investigation, they use a special form published by the North Carolina Division of Motor Vehicles—“Crash Report Form DMV-349.” The form, also known as the crash report, accident report, or police report, is an essential piece of information for either party attempting to prove who was at fault. According to North Carolina law, this report should be completed within 24 hours of the crash and submitted to the DMV. You can fill out a Request for Motor Vehicle Information with the DMV for a copy of the crash report. copy of the crash report. Some police forces have the information available online, such as the Wilmington North Carolina Police Department. While the main information is easily understood regarding the narrative description of the crash; drivers, passengers, and witnesses contact and insurance information; and traffic violations that were cited; there are a number of other details. In order to decipher the codes on the report, use this key (Download DMV349). You can also use the DMV-349 Instruction Manual to help you interpret the crash report. An experienced personal injury attorney also should have a great deal of experience in interpreting the report.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices 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.

 

Free Advice

I will occasionally get questions from friends, acquaintances, at a dial a lawyer day, or online at www.avvo.com, who want to know what they should settle for in a small to medium car wreck or personal injury. These casual, cocktail party questions are difficult. Sometimes these folks have already retained an attorney and are looking for a second opinion and sometimes they just want me to give them a number that they are entitled to. My problem is, it is often impossible to even give an educated estimate without knowing details of the case. Non-lawyers, who hopefully will only have one or two of these claims in their life, don’t understand the details that can greatly change the value of a case. Sometimes I don’t think they understand that it’s not that I’m unwilling to give an opinion, I honestly can’t give one based on the broad outline of a case. If they have an attorney, I know there is no way I have more knowledge to make an informed decision than they do.

That is the reason I, as well and numerous other attorneys, offer free initial consultations. From those, I can ask the right questions to get the details I need to at least give an initial impression of the strengths and weaknesses of the case. I’ve represented blue-collar, white-collar, tradespersons and professionals, and as smart or educated as they are, they don’t know what details are important for a case. It’s the job of the lawyer to get that information.

Also remember that even where the fault of the other party is clear, the amount is an estimate of what a jury would do. Every lawyer has been surprised by jury verdicts, and no lawyer should tell you any amount is certain. Every trial is a risk, and every trial costs money and time to reach a resolution. My advice therefore is talk to an attorney and get the best information you can on the risks and benefits of going to trial or settling the case for a certain amount. If you don’t get a good vibe from that attorney, find one you feel you can trust.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices 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.

Suing the School

Our kids spend thousands of hours in the public schools of North Carolina. Not only are they on school grounds for classroom work, they participate in a vast amount of after school activities such as cheerleading, baseball, football and other sports. Just like a store or a private residence, negligence can occur from the actions or inactions of staff, teachers, coaches, or administration at a public school. The claims against a school or its employees would be the same against any other landowner or any other person. Depending on the facts, this could be a claim that the teacher or coach negligently acted or failed to act and caused an injury. It could also mean that there was a hidden or concealed condition that the school knew about and the injured person did not, and the school failed to correct or warn and caused injury. The school would have the same defenses that a private person or landowner would have, primarily any contributory negligence on the part of the injured person, which would bar his recovery. This defense is mitigated somewhat as a child 7 and under cannot be found to be contributorily negligent and a child between 7 and 14 will be compared to a reasonable 7-14 year old, rather than a reasonable adult.

The main defense a public school will have that a private individual or landowner will not have, is the defense of sovereign immunity. The general rule in North Carolina is that you cannot sue the State or its lesser government entities such as towns and school boards. Therefore, under the general rule, even if you have negligence, you cannot sue a public school or school board for your injuries. However, there are some exceptions. First, the activity must be a traditional government activity. Any classroom activity is a traditional government activity and would be protected by sovereign immunity. The courts have also found school basketball games and after-school daycare are also protected under sovereign immunity. Only where the activity is not a traditional activity is sovereign immunity not a defense, as when a city runs a concert arena or rents out low-income housing.  

The second exception occurs when North Carolina allows itself or its lesser governmental entities to be sued. Suits against the state or its agencies can proceed before the Industrial Commission rather than the state courts. School bus accidents can also proceed in this manner. Also, the state has provided by statute that if a governmental entity entitled to sovereign immunity purchases liability insurance, it has waived any sovereign immunity right up to the amount of that insurance. Historically, this has been the route to defeat sovereign immunity arguments against schools. However, in recent years several counties in North Carolina, including my home county New Hanover, have not purchased insurance but rather participate in the North Carolina School Board Trust. While it appears that the trust would have the same function as true liability insurance, the North Carolina Supreme Court has determined that a school board that participates in the Trust does not waive sovereign immunity.

Even where sovereign immunity exists, some counties will allow for a small amount of recovery for medical bills of the injured student that are not paid by the student’s health insurance. In New Hanover County, this amount is $2500.

Finally, even where the school and school board is protected by sovereign immunity, that protection does not extend to the individual teachers, coaches or staff that were negligent. While an individual teacher likely would not have personal assets to pay for a serious injury to a student, the teacher may have a personal policy of insurance they have privately purchased or obtained through membership with a teacher union or organization. Also, beginning in 2012, the state has paid for an “excess educator’s professional liability policy” for personal liability for teachers in their professional capacity (probably to remove the impetus for the teachers to join a union). Although the policy says “excess,” if the school board has paid nothing voluntarily, that excess insurance should be primary and pay from the first dollar spent, or at least after the school board has paid the $2500.

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

 

 

Insurance Adjusters

After you are involved in a car accident, but before you retain an attorney, you are in a critical and dangerous time. You begin dealing with insurance company representatives in an effort to get compensation for your personal injury or damage to your car or other property. Even the most fair and honest claims representative does not have the mandate to get you the most he can for your injuries, or even to get you a fair amount. His job is to provide you with the least amount he can that will quickly resolve any claims you have. In doing so, there are a number of things adjusters do, either on purpose, or just by the nature of the situation, that push you to quickly resolve your claim, and in doing so, you run the risk of settling for far less that you would otherwise be entitled to.

While the guy you buy the insurance from works out of a small office with one or two employees, and is always available on the phone, or Saturday on the golf course, or Sunday in church, he is not the person who is making the decisions on what your will receive from your car accident. That person is usually in a different city, and will handle sometimes up to 150 separate claims in a variety of geographic locations at any one time. In contrast, you have only one case that you are concerned about. Discussing the claim in a timely matter may therefore mean different things to the adjuster than to you, even assuming the adjuster is not purposefully ignoring your claim. You may become impatient for a resolution and quickly agree to a settlement, dreading protracted negotiation. Resist that urge.

If you are having constant communication problems, consider making all your requests by letter. Insurance companies can face unfair and deceptive trade practices lawsuits on claims handling even on cases they have the right to deny if they fail to reasonably make an investigation and timely notify you of their denial or acceptance of your claim. Keep in mind that in a motor vehicle claim you have three years under the North Carolina statute of limitations to file your complaint. In most cases, just because you are trying to get cooperation from the insurance company, or even when you are actually communicating, the statute of limitations does not stop running. If the adjuster wants to take a recorded interview of you, consult with an attorney. While it may seem to you that their insured is at fault in the accident, an innocent statement by you, admitting to any contribution to the wreck, will immediately provide the adjuster with a large bargaining chip to lower the value of your claim. North Carolina has contributory negligence, meaning that if a jury were to find you to have even a small amount of fault, you would not recover anything, even if the other party was much more negligent.

Typically, when they determine that their insured is at fault, the insurance company will provide offers to settle the property damage claim (damage to the car and contents) and the personal injury claim. Usually the property damage claim is easier to settle. They simply go by the Kelly Blue Book value for the car. As a result, oftentimes this claim gets settled before any personal injury. When you accept money for the property damage, be sure it follows the typical practice of only settling the property damage and not the personal injury. The personal injury, even when fault is not an issue, will typically take longer. Agreeing to a value on pain and suffering, the amount of injury that is caused from the motor vehicle collision as opposed to a pre-existing injury, questions of what is “reasonable” medical care, and ongoing treatment, make settlement of the personal injury claim harder. Unlike a worker’s compensation claim, the insurance company will have no interest (and there is no law to force them) in paying your ongoing medical bills as you go. They will write one check and you will release them permanently. Once that is done, there is no going back, even if additional, unforeseen medical bills arise later out of the same car wreck. So again, don’t sign away your personal injury claim just to get a quick resolution (the goal of the insurance adjuster).

Be immediately suspicious if the claims examiner tells you that you don’t need an attorney, and if you do, you’ll just reduce the amount of money you receive. While this may be true in some cases, don’t take the word of the claims examiner. Most personal injury attorneys will offer a free consultation where they can let you know the risks and benefits of proceeding with an attorney. A good attorney will tell you when not to hire them. With a property damage only case, or a personal injury case that simply involved an E/R visit and maybe some X-rays just to confirm there are no broken bones, it usually would make economic sense to proceed on your own. Any additional amount an attorney could get would be eaten up by the fee. If it involves ongoing treatment, it usually makes sense to hire a personal injury attorney. Again, in either case, take a free consultation first.

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

Bicycle Safety

Sometimes, even the safest automobile driver will ignore rules that they wouldn’t think to disobey in a car. However, the law of North Carolina considers a bicycle a “motorized vehicle” and expects a bicycle rider to obey the same rules of the road as an automobile bicycle rider should always go with the flow of the traffic. These would include:

1. Always ride on the right side of the road, and in a bike lane if one is available.
2. Don’t ride on the sidewalk. Admittedly, the law in North Carolina is a bit murky about riding a bike on the sidewalk. The statutes state that a bicycle is a motorized vehicle and no motorized vehicle should be driven on the sidewalk, but other statutes provide that cars should yield to pedestrians or bicyclists on sidewalks. There also may be local ordinances regarding bicycles on the sidewalk. As a safety issue, expect for small children, it is usually safer to bike on the roadway rather than the sidewalk. Neither pedestrians or cars expect a bicycle on the sidewalk and at every intersection or driveway, you are in greater risk of being hit.
3. Use signals for turning. (Think back to your Driver’s Ed days and remember the hand signals you were taught)   
4. Obey all traffic signs and signals.
5. Yield the right of way to pedestrians.
6. Driving a bicycle while under the influence of alcohol or drugs is illegal.

Other laws specific to bicycles include the following:

1. When riding at night, equip your bike with a front lamp visible from 300 feet and a rear reflector that is visible from a distance of 200 feet.
2. Wear a bike helmet. The law requires all riders under 16 to wear a helmet.
3. Bicycling on Interstate or fully controlled limited access highways, such as beltlines, is prohibited by policy, unless otherwise specified by action of the Board of Transportation.

Other than the possibility of local ordinances, there is no requirement for bicyclists to ride single file, nor is there a law that gives cyclists the right to ride two or more abreast. 

Not only is obeying the laws of the road and bicycles important for your safety, if you do not obey those laws, and you do get in an accident, you may be barred from recovery even if the other person was at fault. Disobeying traffic laws that have been enacted for public safety is negligence per se, or negligence as a matter of law. North Carolina has the rule of contributory negligence. This means that if you as a bicyclist disobey one of the rules of the road, and it contributes, even in a small way, to your injuries, you won’t be able to recover any money for your damages, even if the other person was 99% at fault.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. He rides his bike at lunch nearly every day.

Ensure Uninsured and Underinsured Coverage Exists Within Your Auto Insurance Policy

In a world overrun with computer-animated geckos, Paleolithic cavemen, bubbly spokeswomen, and catchy tunes, we are bombarded constantly with the idea that choosing an auto insurance company is one of the most important decisions we face in life.  Make no mistake, insuring your vehicle is vitally important, but more important than choosing an insurance company is choosing an insurance policy.  A very basic primer on North Carolina auto insurance is helpful when evaluating your auto policy.

In North Carolina, like in most states, you must insure your vehicle in order to use it.  The minimum policy limits for auto insurance, pursuant to N.C.G.S. § 20-281, are as follows:  (1) $30,000 of coverage for injuries or death involving one person in a single accident; (2) $60,000 of coverage for injuries or deaths involving two or more people in a single accident; and (3) $25,000 of property damage coverage.

Chances are high that your policy carries at least these minimum policy limits.  But better practice may be to carry insurance with higher policy limits.  The reason is that if you are found to be the “at-fault” driver in a serious accident where damages exceed your policy limits, you may be personally responsible to pay the difference.  So what is an at-fault driver?

North Carolina is a “fault” car insurance state.  This means that whoever was at fault in an auto accident is legally obligated to compensate for injuries or damages resulting from that accident.  In a fault state, an injured party seeks compensation from the at-fault driver.  (In contrast, a “no-fault” state requires that an injured party exhausts his or her own policy limits—regardless of who is at-fault—before she is entitled to seek additional compensation from the at-fault driver.) 

Imagine that at-fault driver, B, crashes into innocent driver, A, causing $50k of damages to A and/or her car.  Ideally, B carries auto insurance with policy limits that exceed A’s total damages, and A attains compensation of the full $50k from B’s insurance company.  But what if B has no auto insurance, or what if she does, but the policy limits are insufficient to cover A’s total damages?  In such cases, A can recover if she has uninsured (“UM”)/underinsured (“UIM”) motorist coverage.  UM/UIM coverage is required to be offered in North Carolina, but you can “opt out” or decline that coverage.    

UM/UIM insurance, while typically grouped together, covers two distinct situations.  First, UM coverage provides compensation for accidents caused by at-fault drivers who have no auto insurance.  For instance, adding to the above scenario, imagine that B was illegally uninsured, but that A’s policy provided $60k in UM/UIM coverage.  Then even if B was legally at-fault, A’s own insurance would cover the $50k of damages.  Second, UIM coverage provides compensation for accidents caused by at-fault drivers who are “under” insured.  Under insured drivers have auto insurance, but their policy limits are insufficient to cover the total damages.  For instance, imagine that B was insured with maximum policy limits of $30k.  If A’s damages totaled $50k, A could only recover $30k from B.  A would need to seek the additional $20k elsewhere.  But if A’s policy provided UM/UIM coverage with a maximum of $60k, A could collect that additional $20k from her own insurance company.

So, when making decisions about auto insurance on the battlefield of incessant propaganda, shield yourself from insurance company jingles, mottos, and characters, and wield knowledge about different coverage options for your auto insurance policy.  For the relatively cheap cost of UM/UIM insurance, I recommend that you purchase this coverage from the company of your choice.

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

--Robert C. Ennis is a second-year law student at the University of North Carolina School of Law and is a summer associate with Hodges & Coxe PC. 

Medical Provider Liens

A lot of times it is easier as an attorney to obtain a personal injury or medical malpractice settlement from a defendant or an insurance company that it is to actually give that money to a client. One of the most common hurdles that an attorney and his client has to jump over is the payment of any valid liens. Essentially a lien is a claim by another person or company for some or all of the money that an injured person recovers in settlement or judgment of a personal injury or medical malpractice laws. Common liens are ones by Medicare, Medicaid, Teachers’ and State Employees’ Health Plans, ERISA, and Worker’s Compensation. One of the oldest and most common of the liens that can attach are those for medical providers. N.C.G.S 44-49 and N.C.G.S. 44-50 allow any person or company who provides drugs, medical supplies, ambulance services, physician, dentist, nurse or hospital services to claim a lien. In order to have a valid lien (or “perfect” the lien), the medical provider must furnish medical records upon request without charge. A provider is allowed to charge for copies of medical records under N.C.G.S. 90-410 and N.C.G.S. 90-411, but if it does so, it cannot have a lien on its bills for services. The lien rights are waived even if the bill for the copies is never paid or if the medical provider takes back the copying charges before they are paid. In addition, the provider must provide copies of the medical bills without charge. Further, the provider must give written notice saying that they are claiming a lien. That notice must be sent to the attorney for the injured person. Finally, the lien can only be valid if the medical treatment claimed is related to injuries that is part of the settlement or judgment. If the medical charges are for a condition that has nothing to do with the conditions at issue in a lawsuit, the provider can’t get a lien on those funds.

So when considering a settlement for a lawsuit, always determine what liens are outstanding and what you will be required to pay out of any settlement.

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

Does Your Dog Bite?

“Every dog gets one bite,” is a bit of homey legal wisdom that is often repeated by laypersons and even lawyers, but it is not entirely true in the state of North Carolina. The first way a person can recover from a dog bite or attack is under a negligence theory. Legally, a dog attack on someone at a person’s house is analyzed the same way a slip and fall case would be. The owners of the dog would have to have some knowledge that the dog was vicious or mean and they should have foreseen that the dog could injure somebody. If the dog had previously bitten or attacked someone that would be evidence that the owners knew or should have known about the dog. However, an actual bite would not be required. Other behavior from the dog such as an attack prevented by a fence or leash, or even excessive barking or growling could be evidence that the owners should have known the dog could attack and hurt someone. Note that not only the owner of the dog could be held liable for injury from a dog bite under a negligence claim, but a landlord or owner of the house could also be held at fault if they had knowledge of the viciousness of the dog, making this defense unavailable. Any claim of negligence in North Carolina allows the defendants to use the defense of contributory negligence. A person has some responsibility for his own safety and if he fails to do so, to the level of a reasonable and prudent person, he is contributorily negligent and cannot win his case. If the injured person knew about the vicious propensities of a dog and was around the dog anyway; or if the injured party was teasing the dog; could be evidence of contributory negligence.

The second way to recover on a dog bite is by statute. The North Carolina statutes provide that a person who owns a “dangerous dog” is responsible for any injuries it causes, regardless of whether or not he was negligent. The statute provides that a “dangerous dog” is one that has already killed or seriously injured a person; a dog kept or trained for dog fighting; or is determined by a county or city to a “potentially dangerous dog.” A “potentially dangerous dog” is determined after a hearing by a city or county authority and can be appealed to a superior court judge. To find the dog to be a “potentially dangerous dog” the authority must either find that the dog has bitten someone that caused broken bones, disfiguring cuts, or required cosmetic surgery or a trip to the hospital; or that the dog killed or caused severe injury to another animal while not on the owner’s property (and was not involved in hunting, herding or predator control); or approached a person in a vicious or terrorizing manner when not on the owners property. If a dog is a “dangerous dog” or has been determined by a city or county to be “potentially dangerous” then the owner is responsible for any damage to people, other dogs or animals or property that the dog causes. He also would be criminally guilty of a Class 1 misdemeanor. Even if the owner kept the dog fenced up and muzzled, but through no negligence he escaped and caused damage, the owner would still be responsible. The only defenses would be if the injured person was trespassing on the property or was tormenting or abusing the dog. The statues also do not apply to police dogs “on duty” or dogs used in a lawful hunt.      

Finally, note that local cities and counties are permitted to enact additional ordinances regarding dogs and dangerous dogs that are more restrictive than the state laws. So if you have a question, be sure to check with your local laws.

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

 

Automobile Safety

Please check out this infographic, courtesy of Compliance and Safety on automobile safety. The best way to win a personal injury lawsuit, is to never have to file one. 

Featured By: C&S Blog

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

 

The Magic Multiplier

In North Carolina, damages for personal injury involve several different kinds of damages. First are the hard damages or “specials” as some call them. These are the damages where the amounts are usually easy to determine. As long as medical bills and lost hours at work can be shown to be caused by the negligence of a defendant, the jury has an easy time determining exactly how much the injury is. Other damages are soft. Past, present, and future mental pain and physical suffering, permanent injury, scarring, and loss of function are all legitimate damages but don’t have an invoice attached to them. Ultimately a jury decides how much the plaintiff’s pain is worth, based on the facts of the case and their own life experiences.

Settling a case, or deciding not to settle a case and have it tried before a jury, requires a plaintiff to evaluate the value of his case and somehow forecast a range of verdicts a jury may give for both the hard and soft damages.   

Many clients believe in the old rule of thumb that a personal injury case is valued at three times the medical bills, plus the hard damages. Some clients even believe this is the law. It is not the law and I have never seen or heard of it even being used in an argument to a jury. At one time it may have been standard practice for personal injury attorneys and insurance adjusters. However, even if it was at one point a good ballpark number for an initial case evaluation, it is no longer the case, and has been for the most part largely rejected for many reasons. 

For example, a jury is pulled from your county or jurisdiction. Some counties are more conservative than others in awarding damages because of age, employment, military service, and several other factors. In addition, the type of injury effects the amount of pain and suffering a jury will award. While the actual pain of a broken bone you can see on an X-ray, and a sprain or strain of the ligaments of the back that you cannot see, may be exactly the same, a jury will typically award more pain and suffering damages to the broken bone. Juries can give more weight to medical doctors over chiropractors even if both testify the same. Also, the idea of tort reform and the fear of a jury of giving out the next “McDonald’s coffee case” can skew the amounts a jury may award. Finally, although the law says and the judge will instruct that the jury not consider damages until they determine liability, the reality is that jurors make deals. A juror skeptical over the fault of a defendant, may nevertheless find against him if the damages are kept low. Finally, ever increasing cost of medical treatment, and the type of treatment, can skew the total of the medical bills out of proportion to the actual injury.  

Experienced attorneys can take all those factors into account and give you a good, realistic value of your case and give you the best knowledge of the risks and benefits of settling for what the insurance company offers, and taking a risk of trial.

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

Buckle It.

The night of Valentine’s Day, I heard a loud boom outside my house. I thought a tree had fallen or a transformer blew. About five minutes later, at least five police cars came streaming now the street. Looking a few houses down, I saw a horrific wreck where an SUV had wrapped itself around a tree. Looking at the,news reports the next day, a SUV was traveling at least 80 mph down our residential street with no lights on and swerved off the road  into a tree during the accident. Two female passengers, died on impact. The driver of the SUV, was taken to the hospital and was pronounced dead early Tuesday morning. A backseat passenger was expected to survive.

There were numerous circumstances that could have contributed to causing this crash, but the one thing that stood out to me was the one factor identified that could have saved these people despite the crash. According to the police reports, the driver and passengers were not wearing seatbelts. I don’t know if wearing seatbelts would have saved them, but it has been estimated that 50% of car crash deaths would have been prevented had the passengers been wearing a seatbelt. According to the  National Highway Traffic Safety Administration the five things you should know about seatbelts are the following:

1. Wearing a seatbelt is the single best thing you can do to protect yourself.

2. Air bags are not a replacement. Air bags are meant to work with a seatbelt to provide additional protection. They are not meant to replace them. Without a seatbelt on, an airbag can actually do more harm than good as hitting the airbag without a restraint may cause additional injuries.

3. When wearing a seatbelt, the lap belt and shoulder belt should be secured across the pelvis and rib cage.

4. Don’t just check out the stereo and cup holders in the new car you are getting. Make sure the seatbelt is a good fit, and if it’s not, ask the dealer about seat belt adjusters or extenders that will give you a better and more comfortable fit.

5. Everybody should wear seatbelts or some kind of restraints, including small children (with a booster or car seat) and pregnant women.

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

My Not-So-Hero, Zero

There has b
een 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!

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!

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

 

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

 

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.