Trucking Accident Cases

Auto accident claims are one thing.  Trucking accident cases are another.  Period.  People often ask me if they can handle their own accident claims, and I tell them they probably can, but their outcome may not be as good as if they hired a professional.  With trucking accidents, the answer is, “No. Way.”  While you might think one accident with an automobile is just like another, that’s not really the case when it comes to claims involving commercial tractor trailers, transfer trucks, 18 wheelers, or whatever else you might call them.

What makes these claims different?  I’m glad you asked because that’s what I’ fixin’ to write about…

What begins to make these claims different is physics, specifically related to the size of the vehicles involved.  The stark reality is that accidents caused by gigantic commercial vehicles often involve forces that are orders of magnitude greater than those generated in common conveyances.  This in turn creates in many cases a much higher likelihood of catastrophic and life-threatening injuries.

The likelihood of serious injuries caused by these accidents then creates a great deal of what we call “exposure” to the defendant.  Bad injuries mean higher value claims; the worse you are hurt, the more they likely owe you.  In other words the truckers, the owners, the companies who employ these vehicles might face huge verdicts against them for the injuries caused by their drivers.  At some point in your life you’ve heard not to corner an animal because that’s when it’s most dangerous, right?  Well, it’s the same with insurance companies; when a company has a great deal to lose, they feel cornered, and they will spare virtually no expense in fighting these cases.  They will bring out the big guns, so you better get some guns of your own.

That creates a heightened sense of urgency to do whatever you can as soon as you can to document, support, and prove your claim against these entities.  Spoliation letters need to be sent to help preserve evidence of driver’s logs and machinery, investigations need to be made as to who might face exposure (in other words who might be responsible for paying for your claim), and experts may need to be retained to help support the claim you’re making.

For these reasons if you have an accident involving a tractor trailer or other commercial vehicle, you probably need some serious help in pursuing that claim.

If you think you have a trucking accident claim or just want to ask questions about a situation, feel free to give me a call.  919-929-2992.

AUTO ACCIDENT PROPERTY DAMAGE CLAIMS

by Jeffrey Allen Howard

I represent people who have been injured due to the negligence of others, particularly in auto accident cases.  An issue that invariably arises in these situations is the matter of the repair or replacement of my client’s vehicle, or in our parlance, the Property Damage (PD) claim.

As a general rule I do not handle my clients’ PD claims.  I can, but I generally don’t for several reasons.  Most of the time, it’s too late; my clients come to me after the PD claim is resolved.  When it’s not too late I still rarely get involved because I don’t always bring a lot of value to this issue; a vehicle is worth what it’s worth and it costs what it costs to repair a reparable vehicle, so these issues tend to take care of themselves.

When client just has too much on his or her plate to deal with the PD claim, I am happy to intervene or just coach them up if necessary.  Here are a few tips I offer:

□     You have the right to have your vehicle worked on by the mechanic/body shop of your choice, so tell the adjuster if you have a preference.

□     If you’re having a dispute with the adjuster about what damage was pre-existing and what was caused by the accident, consider taking the vehicle to your mechanic to see if he can persuade them to see it your way.

□     If you’re continuing to have a dispute with the adjuster about a property damage issue and have collision coverage on your auto policy, you should consider making a claim with your carrier so the two insurance companies can fight about who’s right.  The upside is you’ll get your car fixed likely in a more expedient manner and you can always attempt to get your deductible from the at-fault carrier.

□     Pay very close attention to where your vehicle is taken after the accident.  In many cases where liability is disputed or the carrier is lagging, the vehicle may be taken to a storage facility and storage charges may be accruing daily.  You should make every effort to get the insurance company to move the vehicle to somewhere where there will be no storage costs, either at your home or a facility they own.  If the at-fault carrier is non-responsive, use your own carrier.  If that is not available, consider having it towed home at your own expense.  It will likely save you money in the long run and you can always ask for reimbursement later.

□     You should be paid the fair market value of your car if it is a total loss.  A total loss is when the cost to repair the vehicle is 75% or greater than the value of the vehicle.

□     Use online resources like Kelly Blue Book and NADA to help value your care.

□     http://nada.com/

□     http://www.kbb.com/

□     BUT what you get from these sites are not definitive figures!  You should also look at private listings of similar vehicles to help buttress your figures with more data.  The more listings you have, the more likely your average number accurately reflects fair market value.

□     Remember, you are not getting retail for your car!  And you’re also not getting trade in value!  What you are entitled to for a total loss if “fair market value” which is defined as what a willing buyer would pay a willing seller at that moment in time.  That’s obviously a moving target, which is why resources like KBB and NADA are valuable to help you get a good target range for the value of your vehicle.

□     If your car is repaired and is not a total loss you may have a claim for diminished value.  In other words, your car may be worth less since it was damaged.  These are rare claims and are difficult to prove and sometimes expensive to pursue.  These do not generally fly very well when you have an older car that is damaged.  But if you have a newer car with low mileage, you might have something.  If you think you have one of these, call me to discuss it.  This is one of the rare instances where my involvement in your property damage claim can make a difference.  There is an argument that these claims must be made within 30 days of getting your vehicle back, so make sure you act quickly!  The statute is actually quite vague about that and you might have longer, but if you get the claim filed within 30 days, you don’t have to worry about it.

 

These are just a few helpful hints to help you navigate the wacky world of property damage claims.  If you have any questions I’m happy to talk with you about them, but remember to keep it all in perspective; your health is the important part of this claim, not your car.   Call me if you need me!  919-929-2992.

This is a little less relevant now that the big game has passed, but people do use crock pots and slow cookers, and whatever else they are called, throughout the year.

I recently handled a case that surprised even me, the jaded personal injury attorney.  A wonderfully pleasant local woman was using her crock pot to cook for a church function.  She used the handy-dandy handles to carry the thing outside to her car, but on the way, the handles failed and the crock pot fell, dropping molten food onto her foot.  This resulted in a nasty burn injury that required surgical skin grafting, a hospital stay of a week or so, lots of medication, physical therapy, and resulted in permanent pain and discomfort and scarring.

Who would think that a common household appliance would present such a danger?  The problem with this piece in particular was the material that was used to make the handles.  This particular model had rather weak plastic handles that a) weren’t very strong to being with, and b) tended to degrade over time, particularly with heat, so eventually they were simply bound to fail.  The company knew that these handles were dangerous and had done recalls on similar models but not on this one.

How is this information valuable to you?  It’s valuable in a number of ways:

• If you own a crock pot/slow cooker, etc., you should inspect the handles!  If they are plastic you probably want to replace it;
• If you are in the market for one, get one with metal handles that are securely attached;
• If you have been injured by a crock pot, particularly one with failing handles, now you know which attorney to call.

I hope none of you have a tragic crock pot accident.  Just remember that these and other household appliances can be far more dangerous than they look, and they don’t have to be!   Be careful, but if you know anyone who is hurt in a situation like this, please tell them to call me.  919-929-2992.

 

Any NC State fan can tell you: Chapel Hill is a strange place.  College rivalries aside, the town is interesting for several reasons.  It’s a bastion of liberal politics in a somewhat conservative state.  Half of our population leaves in the summer.  We have nationally recognized chefs but aren’t even the county seat.  It’s odd.

One thing that sets Chapel Hill apart, and is interesting to me in particular, is the number of attorneys we have.  Let’s face it:  It’s a nice place to live and when people get out of law school they decide to stay.  Who can blame them?

In many small towns you run into attorneys that consider themselves general practitioners.  The reality is that’s how they keep the doors to their practices open; if someone wants a will, they’ll do it, if someone has a divorce, they’ll do it, if someone has a fender bender, they’ll do it, and so forth.

That’s fine.  When you’re talking run of the mill stuff, most attorneys can handle whatever.  But when it comes to injury claims, do you really want a general practitioner to handle it?  Maybe.  Maybe not.

With very minimal injury auto accident claims, you might get similar outcomes with someone who doesn’t focus mostly on injury claims.  When I characterize an accident as minimal, I mean one where the vehicles are barely scratched and the victims don’t go to the hospital.   However, if you’re talking about more complex injury claims there are more “moving pieces,” as I call them, in the claim and for every moving piece there is a potential mistake to be made.

If you’re not handling injury claims every day like I do, you just may not have the time to stay up to date on lien law, Medicaid and Medicare subrogation, liability coverage, Med Pay, UM and UIM coverage, and premises liability claims.  Each of these issues – and there are more – present a potential challenge for claims, and if the attorney who’s handling the claim doesn’t have a strong grasp of the concepts and law involved, they can do irreparable harm to your claim, and your bottom line.

Take a look at my website: www.jeffreyhowardlaw.com (which you already are looking at since you’re reading this). What does it tell you?

It tells you I handle Personal Injury claims, Workers’ Compensation claims, Mediation, and Traffic Tickets.  The first two things are injury law, so they make sense to go together.  Mediation is conflict resolution in general, but it can be used in the injury law context.  The only thing I do that isn’t injury-law-related is traffic tickets, but what small town attorney doesn’t do traffic tickets?  It’s a great way to help and meet people, and broaden your client base.

So if you’ve got an injury claim and are looking for an attorney, do yourself a favor and hire one that handles injury claims as a central focus to their practice.  Check out their website and examine their practice areas.  If they have several unrelated practice areas, you’re dealing with a generalist.   Is that bad?  No, not necessarily.  But think of it this way:  If you have a tumor, do you want your family doc to treat it exclusively, or do you think the oncologist might be better suited to that?

Almost every injury client that I interview will ask the question, “How long is this going to take?”

Most of the time my answer is another question, “How long is it going to take you to get better?”  That’s a little cheeky, admittedly, but it gets a point across.  That point is that injury claims are difficult to value until the injured party reaches maximum medical improvement.  Everyone can understand that there is a difference in values of cases where one person makes a full recovery while another only makes a 50% recovery.  So until I know where the victim is going to land in their recovery, I can’t accurately value the claim.  And if I can’t value it, it probably doesn’t make sense to try to settle it.

And even when we can get a good idea as to what the case should be worth, that doesn’t mean we are going to be able to get that through negotiation.  That means we may have to litigate the claim.  Generally speaking, claims that are litigated take about one year from filing to resolve, give or take a few months.

Yes, I know!  This seems like a long time to get anything done.  But remember the old quip, “Do you want it done quickly or do you want it done right?”  While I’m not sure about the grammar, the substance of that holds true here.  Rushing claims doesn’t make any sense.  Preparing a sturdy case with all of our “I”s dotted and “T”s crossed increases our likelihood of success.  The more patient you are, the more likely you are to get a favorable outcome.

If you’re feeling like your case is going too slowly, consider this little nugget:  In the town of Poona in what we now call India in the year 1205 a man named Maloji Thorat filed a lawsuit in an effort to protect his rights regarding presiding over certain religious functions.  It wasn’t until 1966 that the courts made a decision on that, and awarded his descendant Balasaheb Patloji Thorat a favorable decision.

My cases might take a while, but they don’t take 751 years.  So look on the bright side!  And if you are interested in talking to an attorney about an injury claim, call me at 919-929-2992.

 

Top 4 Things You Should Know about Wrongful Death Claims in NC

 

1. Authority – Not just any family member can legally bring a wrongful death claim or authorize an attorney to file suit on a wrongful death claim.  Only the Executor of the decedent’s estate if there is a will, or the Administrator of the estate if there is no will, have the authority to bring such a claim.  But virtually anyone can qualify through the Clerk’s office to be the Administrator if there is no will, by applying after a 90 day waiting period.

2. Who can benefit? – The  proceeds from a wrongful death claim would go to the heirs, not the beneficiaries of a will.  Who is an heir is defined by the laws of intestate succession.  It won’t matter who was written in or out of a will.  For example, there may be a ne’er-do-well daughter who left home at 15 to join the carnival, never to communicate with the parents again and who was not written in the will (and may have even been specifically excluded in the will) and didn’t help take care of mom or dad in their dotage.  But when there’s a parental wrongful death claim, the child still counts as an heir, so this prodigal daughter could benefit, regardless of what the will says. This can create a great amount of contention in family situations, but it’s best learned sooner rather than later.

3. What is there to get? – Damages can include things for the benefit of the decedent, as with other injury claims, like pain and suffering, medical treatment costs, lost wages.  But they can also include things that the heirs might have lost or incurred, like loss of future income, loss of inheritance, loss of care and companionship, as well as funeral expenses.  As you may have inferred from point number 2, the proceeds of a wrongful death claim do not pass through the will or the estate, technically.

4. Statute of Limitations – That statute of limitations in NC for Wrongful Death Claims is typically two years from the date of the death.  Most negligence claims in NC have a three year window, so this reduction of 1/3 of the time allowed to review and prepare a case is a huge obstacle and should not be ignored.  If you have a wrongful death claim you should act immediately, talk with an attorney, and do what needs to be done ASAP.  It may seem like a lot of time, but it isn’t.

If you think you have a valid wrongful death claim or just want to ask questions about a situation, feel free to give me a call.  919-929-2992.

Auto Insurance and Motorcycle Accidents

Motorcycle accidents can be far more dangerous than car v. car accidents given the exposure of the rider.  They can also present more complicated insurance coverage situations.

In North Carolina, drivers are required to have a liability insurance policy of $30,000 per person/$60,000 per accident.  If an automobile driver causes an accident with a motorcyclist, the motorcyclist can present a claim and recover up to $30,000 from the other driver’s coverage.  In some circumstances they may have more coverage on that policy, and they may be covered by other policies, as well.

If the motorcyclist’s claim is valued higher than the limits of the automobile driver’s coverage, then the motorcyclist should see if they can make a claim with their own policy for underinsured motorist coverage.  Also, motorcyclists will often have a separate policy of coverage on an automobile, in which case they can make a claim with that coverage, too.

If the driver doesn’t have any coverage at all (which is illegal, but it does happen) then the motorcyclist should look to their own coverage for an uninsured motorist claim.

Many automobile policies will have a separate medical payments policy which will cover occupants, regardless of fault, in the event of an accident.  Generally, though, most policies will have an exclusion for motorcycle accidents.  That last fact should give motorcyclists pause.  If an insurance company thinks something is safe, generally speaking, they’ll insure it. This fact implies that the statistics show them that motorcyclists are disproportionately injured in accidents, so it’s not profitable for them to offer this coverage.

Riding a motorcycle can be very dangerous, and the insurance questions in the event of an accident can be complicated.  If you have an accident on a motorcycle, call me and maybe I can help. 919-929-2992.

I bet you’ve done it.  If you haven’t, you’ve probably wanted to, and you have certainly seen someone else do it.  I’m not judging, necessarily, but it is a very frightening problem.  Check out this site:

 

http://www.textinganddrivingsafety.com/texting-and-driving-stats/

 

This issue is becoming more and more alarming.  Info from this site:

 

At last check 11 teens die every day due to texting and driving.

 

In 2011 at least 23% of all auto accidents involved cell phones in some way.

 

The minimal amount of time you take when looking at your cell phone is 5 seconds.  In that time, you travel 100 yards – the length of a football field.

 

What frightens me is that more and more people are using phones in the car, and more and more people text.  The way our culture is developing with expectations of constant and immediate communication there will continue to be a temptation to text and drive.

 

Whenever phone usage or texting causes an accident, the defendant almost never admits to it at first.  So if you have an injury claim where this may have been the cause it’s important to investigate the matter.  Unfortunately, you can’t get to cell phone records without litigation and the use of discovery or a subpoena.  But sometimes these records are not kept longer than six months, so you have to discuss with your attorney the benefits and detriments of filing suit so quickly.

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What I find interesting about these cases, from a professional standpoint, is how texting while driving can be interpreted for liability purposes.  Clearly, texting while driving is negligent (acting unreasonably under the circumstances).  But in most accident cases, negligence won’t be contested.  In other words, whether the person was texting, or rocking out to Britney Spears with his eyes closed, their negligence caused the accident so they’re responsible for foreseeable damages.  That’s that.  They aren’t on the hook any more just because they were texting…

 

…unless we can successfully argue that texting while driving is gross negligence.  If that is the case, it may open the door to punitive damages, meaning that the defendant could possibly be responsible for more than just compensatory damages, but for an extra penalty levied by the court for their egregious activity.

 

If you have an injury claim that you think resulted from texting while driving, call me immediately.  I would love to help.

I can’t tell you how many legitimate automobile injury claims have been defeated from the start by victims not understanding how to react after the accident.  That’s not a knock against them; being in an accident is stressful and it’s hard to think and act under stress.  Moreover, if you aren’t trained to understand how an insurance company is going to manipulate you in this situation, you have no way of knowing how to react.

To that end, I thought I’d create this little list to help you in case you are in an accident.  Remember, in these situations it’s not all about how to preserve your claim.  People who are injured need to be taken care of, regardless of fault, so bear that in mind as well:

1. Always stop your car if you are involved in an accident.  Err on the side of caution, call the police, and let them decide if the accident is reportable.

2. If you’re able check to make sure you’re in a safe enough position to exit the vehicle.

3. Once again, if you’re able, check to see if any of the other motorists in the accident are in need of medical treatment.  If you or anyone else is even slightly hurt, call 911.

4. Give as much assistance as you can to anyone who is injured, but be wary of moving the severely injured, as you might do more harm than good.

5. Do not be concerned with fault; don’t throw blame and don’t accept it.  Talk to your lawyer if you are confronted with accepting blame.  Do not agree to pay for any damages or sign anything.

6. Get the name and address, telephone numbers, and insurance information of all drivers involved.  Try to get contact information of any and all witnesses who are available.

7. Give the most succinct account of the accident that you can give to the officer. DO NOT minimize your injuries as the officer will indicate by code on the report if you were injured.  If you say you weren’t, then later say you were, that can severely damage your claim.

8. Do not discuss the accident with anyone else, except your health care providers, attorney, and employer if necessary.

9. Use a smart phone to take pictures of the scene of the accident, the vehicles, injuries, and any other relevant images.

10. If you have collision coverage, don’t hesitate to use it.  Make sure your vehicle isn’t placed in storage for so long you incur a ton of storage fees.  Be proactive.

11. Do not delay in getting treatment for any reason; injuries require treatment regardless of fault.

12. If you need to make a claim against anyone else for your injuries DO NOT TRY TO DO IT YOURSELF!  Call your attorney and let a professional help. 

13. If you choose to represent yourself, remember everything you say and do can and will be used against you by the insurance company. 

14. If you choose to represent yourself, don’t be lazy and give the the insurance company a medical release or they may dig up anything and everything on you; get the relevant records and bills and provide them personally.

15. Be forewarned: If you represent yourself, the damage you do to your case along the way may not be reparable even if you get an attorney later on down the road.  This is akin to Mr. Miyagi’s speech about “either you karate do yes or you karate do no”; either you get an attorney at first or you don’t…trying to do it yourself and then ask to be rescued later may not work out well for you in the end.

I hope that helps.  Call me with any questions.