Author: jeffreyhoward

In North Carolina, and in many states, if you take a personal injury claim to trial, you will be forbidden by law from letting the jury know the defendant has an insurance company to bear the burden of the consequences of their negligence.

That’s right.  Forbidden.  If the jury hears a peep about insurance, at best you will get a mistrial and have to start all over again with a new jury, and you might get a nasty talking to by the judge.

I find this unbelievable for several reasons. But it’s true, unfair though it may be.

Our system of justice relies upon the finders of fact – juries or judges – having as much information as possible to help them make decisions on these matters affecting our lives.

If you are an injury victim, then all of your laundry will be up for discussion; your previous medical history, substance abuse and mental health issues, family issues, everything will be put on display by the defense to help sway the jury for the defendant.

Thanks to new legislation (Billed vs. Paid) put forward by the Republicans, the party that loves insurance companies, even your health insurance can be discussed.  This information was formerly excluded from evidence under the Collateral Source Rule, on the premise that the defendant should not get the benefit of insurance you pay for.  Not so anymore.  Now the defense will talk all day about how you don’t really deserve much from the bad guy because you had insurance to pay for your injuries (forget that the other guy was drinking, ran a red light, and hasn’t even apologized for the accident).

OK, fine.  Full disclosure might be a good thing, right?  Maybe the jury should hear everything about everything so they make a fully informed decision.

The fact is that insurance companies have so successfully lobbied the Republican Party that they get full disclosure to the jury, but ONLY if it helps the insurance company.  Injury victims are barred from mentioning, even in passing, that the defendant has an insurance company to pay for the consequences of their negligence.  That’s right, the jury will hear all day long about your BCBSNC plan paying your bills, but they cannot, by law, hear a peep about how State Farm or Allstate or Nationwide or Geico has called you a malingering liar throughout this process, how they are paying for that driver’s defense attorney, and how they will have to pay – not their client – if you prevail.  You can’t tell them anything about how they nickel and dimed you on your property damage claim.  You can’t tell them anything about how rude their adjuster was to you, or how the adjuster tried to get you to settle your case while you were on Morphine in a hospital bed.  Nothing.  You simply can’t tell a jury about the defendant’s insurance.

What happened to full disclosure?  Isn’t what’s good for the goose good for the gander?  Isn’t turnabout fair play?  All of that means nothing when you are dealing with an insurance company lobby with enough money to buy legislation.

How is this fair?  It’s not.  What can we do about it?  A few things:

1)      Hire a personal injury attorney when you have an auto accident, dog bite, slip and fall, pharmacy error, or medical malpractice claim.  We are better equipped than you are to fight the insurance companies.

2)      If you are ever on a jury for a personal injury claim, go ahead and assume there is an insurance company on the hook, and tell your fellow jurors.  Chances are, if there is a defense attorney, there is an insurance company paying for him or her to be there.

3)      Tell people you know all about this and how unfair this is, and how personal injury attorneys are on your side.  You’re welcome to think that personal injury attorneys are “ambulance chasers” and slick, scheister, money-grubbers, but when you think about it, we are the ones helping the common, average guy – that’s you! – fight the mega-corporations with all of the money.  We are on your side, fighting against the insurance juggernaut!  Don’t hate us, help us!

4)      Vote Democrat.  I am not a registered Democrat, and I personally think political parties are not a good thing, but the fact is that the Democratic Party is against the Republicans, and the Republicans are bought and paid for by the insurance company lobby.  So if you want insurance companies to have their way with you while they rob you, fine.  But if you don’t, stand with me, vote Democrat, and do something to help the average citizen fight for a level playing field.

When you have an auto accident personal injury claim in North Carolina, the insurance company that represents the at-fault party has every reason to avoid paying you what you deserve.  Your personal injury attorney has to work hard to get you what you deserve; it’s not an easy job, and it’s only getting more difficult.

Don’t get me wrong:  I’m not trying to write a “woe is me” article about how bad we personal injury attorneys have it.  The point of this article is to help you understand how difficult auto accident injury claims can be in North Carolina, and what you might be able to do to help yourself and your claim.

The insurance company adjusters will use every reason they can justify, and many they can’t, to avoid paying you what you deserve.  But the thing I hear from them the most often is the “Minor Impact Soft Tissue” argument.  Many companies use this MIST acronym to flag claims that they don’t want to pay for.  They argue that the impact to your car was “minor” and as a result, you can’t be hurt, or you can’t be hurt as badly as you say you are.  In other words, “if the car ain’t hurt, you ain’t hurt.”  I hear it every day.

This is clearly unscientific.  Look at it this way: When we buy eggs, we always look inside the carton to make sure the eggs aren’t broken, right?  Even if the carton looks fine, the eggs can be broken.  This is the same with auto accidents.  You could be injured quite severely, and your car may not show much damage at all.  And remember Dale Earnhardt?  The accident that killed him wasn’t anywhere near the most cataclysmic of accidents in NASCAR.  His car just hit a wall.  There were no flips or rollovers, just a straight impact like many accidents on the road.

Think about it!  Cars are made of rubber, plastic, and metal – all resilient materials made to withstand significant impacts.  We are flesh and bone and blood and we take injuries in different ways than machine-made parts of vehicles.

The sad part about this argument is that it can work!  Juries are comprised of our peers, and our peers can fall for this argument, unscientific though it might be.

I hope you won’t be involved in one of these accidents, but if you find yourself in an auto accident where there’s relatively minimal damage to your car, I’ve laid out some tips below to help you out:

• Report your injury immediately.  The longer in time from the accident to your first complaint, the more the insurance company will use it against you. “Toughing it out” means tough luck for your claim.
• Get several estimates of your vehicle’s damage.  Don’t trust the first one.  More importantly, when they start work on your vehicle, make sure they know that you want everything that could have possibly been damaged to be checked out!  If they forget to check something, it may be too late to get it fixed.  Moreover, the more they have to fix, the more property damage they pay for and the harder it is for them to argue it was a “minor impact.”
• If anything inside the vehicle was damaged, save it and report it.  If your bumper isn’t smashed in, they will say you aren’t hurt.  But if your cell phone flew up against the console and got smashed, they will have a hard time arguing it was only a “minor impact.”
• Check your owner’s manual regarding seat belts and accidents.  Some manuals say that after any accident involving a reported injury, the seat belts should be replaced.  Make the insurance company pay for this, and that will also help get your case out of the “minor impact” category.
• If after your car is repaired, it seems to be having problems, take it back in!  If you let these things go, a) you won’t get them fixed on the other side’s dime, and b) it will lend credence to their argument that your car wasn’t damaged enough to warrant your injury.
• Choose a health care provider that is experienced with these sorts of auto accident claims and who isn’t afraid to go to bat for you and testify that your injuries were, to a reasonable degree of medical certainty, caused by your accident.
•  Don’t linger in your treatment any more than you have to!  Running up a bill is a bad thing for injury claims.  Of course you need treatment, and of course you shouldn’t cut corners where you don’t have to.  Getting the treatment you need is important, but be active in the decision to be released from care, and let your provider know you want what you need, but only what you need.  The quicker you get better, the easier your claim should be.

These are just a few helpful tips.  Like I said before, I hope you don’t have an auto accident, and I hope you don’t need me for a auto accident claim, but if you do, perhaps these tips will come in handy.  Let me know if I can help.

In a nutshell, when you have a compensable North Carolina Workers’ Compensation Claim you are entitled to three things:

1) Payment for your time out of work,

2) Payment of your medical treatment, and

3) To the extent that there is any, payment for any permanent disability you will suffer as a result of the injury.

Admittedly, this is a bit simplified; there are other benefits available in NC Workers’ Compensation law, but for the most part, you can boil it all down to these three things.

There are lots of intricacies involved in the interpretation of what the workers’ compensation insurance carrier has to pay for medical treatment (you can look forward to future posts on that), and I have another blog post already that deals briefly with some permanent disability injury values in comp claims and the spooky way we value body parts.  Plenty to discuss there, but this post is more about the first thing: payment for your time out of work.  So how does that work (oh, look…a pun!)?

So your doctor writes you out of work, and as a result you aren’t getting a paycheck.  If you are out of work for just one week (7 days) then you aren’t entitled to anything for your time out of work.  But once you’re out for more than seven days, then the clock starts ticking (parenthetically, if you are out for more than 21 days, then you will get paid for that first week you didn’t get paid for at first, so that’s nice).  Under NC Comp Law, you are entitled then to 66 2/3% (.6667) of your average weekly wage (AWW), payable on a weekly basis, until you get back to work (there can be some limitations on that, but that’s for another post).  This benefit is called Temporary Total Disability, or TTD, in our system.  The amount they pay you (the 2/3 of your average weekly wage is called your Compensation Rate (or CR).

I am sure that explanation gives you more questions than answers, such as: Where in the heck do they get that number?  And what is my average weekly wage?

The 2/3 of your paycheck number comes from the legislative supposition that most people pay around 1/3 of their paycheck into taxes, so most people only take home about 2/3 of their pay.  Since your TTD check is not taxable, that seems to be fair on its face.  We won’t explore the fact that most people don’t end up paying 1/3 of their pay to taxes, but at least there is some plausible rationale.

But what is your average weekly wage?  That’s sort of simple, and sort of not, just like the rest of the law; if it were simple, who would need lawyers?.  In the best situations, this is calculated by looking at what you made with that employer over the last 365 days. There are at least four accepted methods of calculating your average weekly wage, listed below in order of preference according to the North Carolina Statutes and the Industrial Commission:

1)      If you worked 52 weeks before the accident with that employer, take that total earnings and divide them by 52; or

2)      If you missed more than 7 days during the 52 week period prior to the injury, then the number of days missed will be deducted from the 365 day period, and gross wages will be divided by the remaining days to determine a daily rate; the daily rate is then multiplied by seven to obtain the AWW; or

3)      If you worked for this employer less than 52 weeks, you can still do the daily method above, unless considering other options it appears unjust, in which case you might try;

4)      Look at an employee at the same employer with similar work hours responsibilities, etc.., and determining their AWW in the most just and similar manner possible.

How could it be simpler than that?  I’m just kidding.  It can sound like gobbledy gook to me, too, but I’m around it, so I get it.  What makes it even more interesting is that you can take into consideration other forms of compensation as well.  Overtime is an obvious one, since you would hopefully get those numbers in your gross wages anyway.  But if you receive other benefits – like subsistence allowances, room and board stipends, extra duty bonuses, etc. – that can be factored in as well.  And while one of these four will normally do the trick, our legislature has opened the door for other options as well if one of these doesn’t seem to be just.  This means that if the numbers just come out crazy for some reason, the Industrial Commission will at least listen to other arguments for AWW and Comp Rate calculations.  Once you have your AWW, then you multiply that by .6667 and you have your Comp Rate.

Interesting stuff, huh?  North Carolina Workers’ Compensation law is a particular and persnickety (I stole that from the cheese commercial, I know) area of law that is best navigated by professionals with experience.  If you or someone you know has a question about a worker’s compensation claim, feel free to call me anytime.

Last week I had just had a great morning workout and was leaving Cup-A-Joe heading toward the office.  I was in a fantastic move, endorphins and caffeine pumping on all cylinders.  Of course that should have been a sign to me that things were about to go downhill.

Bear with me as I set the scene, because this is important from the perspective of legal analysis (yeah, some of that will be in here):  I was coming out of Kingston Rd., right next to Timberlyne Shopping Center.  There is a stop light there, but no cross walk or pedestrian signals there at Kingston as it meets Weaver Dairy Rd.

I was getting ready to turn right (to head east) onto Weaver Dairy, and my light had just turned green.  So I going to go, right?  No cars coming, so why wouldn’t I?

Well it turned out that there was a tiny little college girl on her morning jog heading toward me (she was going west on Weaver Dairy, approaching my intersection).  I saw her, but she was still on the grass behind the curb and not going fast (she was jogging and was like 4 feet tall, so she wasn’t exactly going Olympic speeds) so of course, I feel clear to go.  I proceed in my turn, only to hear a “thonk” behind my car as I begin to head east on Weaver Dairy.  I looked in my rear view mirror and she was still running and had just started going across Kingston, not missing a beat.  I had assumed at first that I had hit her somehow, but then it hit me (so to speak): The little snot had punched my freakin’ car!  Seriously!  Who does that?

People who know me well will recall that I will not shy away from an argument when I feel like I’m right, so I was all ready to pull over and attempt to discern exactly what this lady’s problem was and how we could get her meds adjusted to avoid me having to give her the what for.  But quickly I realized that that wasn’t going to get me anywhere.  I put on my personal injury lawyer hat and wondered if I had done something wrong.  I didn’t feel like I had done anything illegal, but I couldn’t put my brain on a relevant statute simply from memory.  So then I thought, “this is a perfect blog post experiment – I’ll research it and see if I was in the right or if I owe this little lady an apology!”

So here we are.  And here’s what I found:

§ 20-172. Pedestrians subject to traffic-control signals

(a) The Board of Transportation, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to erect or install, at intersections or other appropriate places, special pedestrian control signals exhibiting the words or symbols “WALK” or “DON’T WALK” as a part of a system of traffic-control signals or devices.

(b) Whenever special pedestrian-control signals are in place, such signals shall indicate as follows:

(1) WALK. – Pedestrians facing such signal may proceed across the highway in the direction of the signal and shall be given the right-of-way by the drivers of all vehicles.

(2) DON’T WALK. – No pedestrian shall start to cross the highway in the direction of such signal, but any pedestrian who has partially completed his crossing on the “WALK” signal shall proceed to a sidewalk or safety island while the “DON’T WALK” signal is showing.

(c) Where a system of traffic-control signals or devices does not include special pedestrian-control signals, pedestrians shall be subject to the vehicular traffic-control signals or devices as they apply to pedestrian traffic.

(d) At places without traffic-control signals or devices, pedestrians shall be accorded the privileges and shall be subject to the restrictions stated in Part 11 of this Article.

So what does all of that legal gobbledy gook mean?  Here’s my interpretation:  When there are pedestrian-control signals, they have to be followed.  But that doesn’t matter for my situation because there weren’t any.  So check out section c regarding when there aren’t any pedestrian-control signals… “pedestrians shall be subject to the vehicular traffic-control signals…(which also happens to be, almost word for word, the title of this statute)”  What that means is that when this lady is heading west, and the light for cars in her direction is red, which it has to be since my opposite light for the perpendicular lane of travel, she has a duty to stop, just like motorists do.

Now there is a separate section, 20-173, that talks about yielding the right–of-way to pedestrians when there aren’t any crosswalks and the pedestrian is crossing the road.  But that’s only when they are in the road.  This lady was not in the road.

So what it boils down to is this: Pedestrians have to follow traffic-control signals, and when there is a red light for the cars going in the pedestrian’s direction, the pedestrian has to stop.  Now that doesn’t give motorists the right to run them over when they are in the roadway, and motorists should yield when pedestrians are in the road, even when they are so place due to their own negligence/stupidity.  But pedestrians have to obey traffic lights (and stop signs, for that matter), too.

VERDICT: Jeffy wins!  This runner lady should have stopped her little jog when she saw that her light was red, and I had every right to proceed with my green light and with the pedestrian still being on the curb and not in the roadway.  Moreover, she had no right to punch my shiny, pretty car.  Thank goodness she didn’t leave a dent, or we would have an issue.  Still, that’s not going to stop me from carrying a printed out copy of this statute with me now, so if I see this girl again, I’m going to deliver it to her so she’ll know her responsibilities a little better next time she wants to fight a 2000 lb. vehicle.

Aren’t I a giver?