I got a call from a great old client this morning.  His wife had gotten a stop light ticket and was wondering if she should pay it off.

No.  You should not pay off a stop light or stop sign ticket.

Paying off = pleading guilty.  Guilty = conviction.  Conviction = 1 insurance point.  1 insurance point = a 30% increase of your insurance rates for 3 years!

So, no.  Don’t pay those off!

If you get a stop light/stop sign ticket, particularly in the counties listed above, call me to discuss your option.  For a few hundred bucks I can probably save you a lot more!

One of these things is not like the other.  One of these things does not belong.

Strict Liability refers to claims that a government might designate as having no need to prove that an act or omission on the part of the defendant led to the injury; if the event happened, you’re liable.  For example, technically under strict liability tenets, if your dog bites someone, you’re on the hook.  Period.  It doesn’t matter if he was on a leash, it doesn’t matter if it was a creepy vacuum cleaner salesman who stepped into your door uninvited.

In North Carolina premises liability claims – claims for injuries suffered on someone’s property – are NOT strict liability.  In other words, you have to prove that the property owner/manager’s negligent act or omission was the cause of your injury.

A slip & fall case is merely a type of premises liability claim, and is probably the most common, so I deal with these more than any other premises liability claim.  These are NOT strict liability.  So if you slip/trip and fall on someone’s property they are not automatically responsible for whatever injuries you suffer.  You have to prove that some negligent act or omission caused you to slip and fall.

If you are going to remember anything from this article, you should remember the last two sentences above.  Go read them again.

For example, you’re going up a set of stairs at a restaurant and you miss a step and get hurt.  Why did you miss a step?  If you don’t know why, or it’s because you just did, they don’t owe you for that.  If it’s because the steps were too shallow according to code, there was a loose tile, there was a banana peel, or whatever, then maybe they do owe you.

So, if you’re ever hurt somewhere, think about why you’re hurt.  Is it because you’re a clumsy oaf?  If so, then you aren’t owed anything.  But if it’s because the owner left some spent uranium in the middle of the floor, then you might have something.

What do you really need to know about an attorney before you hire one?  What are the most important things to ask?

No, you don’t ask her where she went to law school.  That is irrelevant. If you must know, look at her diploma.  But who cares?

Newsflash: We all pretty much learn the same stuff.

In my experience, it’s far more important what your prospective attorney does after law school, particularly with their clients and their practice.  These are the things that really matter:

1. Is my type of case your main practice area?

The days of the generalist are essentially done.  No longer do you go to the same attorney for your will, your divorce, your accident case, your worker’s comp issue, your bankruptcy, and your weed ticket.  Sure, there are people around that still practice this way, but I think it’s wiser to hire someone who has a practice focus.  That doesn’t mean they only do one thing necessarily, it just means they limit their practice to two or three areas of law at most.  Think about it: the more you spread yourself out, the thinner your knowledge base is likely to be. You don’t want shallow knowledge.  You want deep knowledge.

2. Who in your office will most of my communication be with? 

This is very important.  You’re looking to hire an attorney. You are not looking to hire a paralegal, or a case manager (whatever the hell that is).  You want to be able to communicate quickly and efficiently with your attorney to help get you the best results.  If you’re looking at a prospect with tons of staff for her to delegate to, do you really think that attorney is going to be fielding your phone calls/emails?  You want to deal directly with your attorney.  Your case is far too important not to.

Here’s a great tip:  After the interview but before you hire them, call to speak to the attorney you interviewed with.  If you get to talk to them (then, or if they return your call shortly) that’s a good sign.  If they won’t talk with you to get your business, you know darn well they won’t be talking with you when they already have you signed up. 

3. What is your main goal with cases like mine?

No one ever asks this question.  Ever.  And it boggles my mind.  What they DO ask in the personal injury context is “how much is my case worth?”  but that’s a different question.  What is your attorney’s goal with your type of case?  Many won’t have a good answer (because they don’t think about it and are never asked).  I think about it all the time.  In fact, even if they don’t ask (and they don’t) I tend to tell clients anyway:  My answer, particularly for personal injury cases (auto accidents, dog bites, etc.) is to have a client who feels happy with my work, regardless of outcome, so that he will refer his friends and family when the time comes.  That’s my goal. I want my client to feel like I did everything I could to make sure they were treated fairly.  Sure, I want to win.  Sure, I want to get my clients a lot of money.  But in the end, the financial goal isn’t the main one.  I want the client to feel good about my work.

That’s it.  Don’t worry about what their “win percentage” is, and don’t worry about what their biggest settlement is.  Don’t worry about if they routinely get people out of DWIs.  Worry about their familiarity with your type of case.  Worry about their willingness to communicate with you.  Worry about whether or not they are worried about what you think of them after you case is done.

Now if you’ll excuse me, I have to go communicate with my clients.

Everyone has heard about the original “hot coffee” case of Stella Liebeck against McDonalds.  Many people think they know what that case is about, but they probably know virtually nothing about the facts.  If you’re looking for an education on that particular case and the vitriol of “tort reform” that followed it, I urge you to watch http://www.hotcoffeethemovie.com/ but discussion of that movie is for a different day.

In North Carolina a case was recently taken to trial wherein a man sued Starbucks for burns he received when the lid of a coffee he’d gotten from Starbucks came off.  http://abc11.com/news/starbucks-not-liable-for-raleigh-police-officers-burns/713613/

Sadly for him the jury sided with Starbucks.

Let me first say that I’m not the world’s foremost expert on hot coffee or coffee burn cases.  But I have handled them before and the best advice you can get before making a claim against a coffee retailer is this:  Know when to hold ’em and know when to fold ’em.

What I mean by the Kenny Rogers reference is that, like with any case, you have to know when you have a good argument and when you don’t.  To get deeper into the meaning of this advice though, consider this little nugget.  Dan Cox is considered by many to be the go-to expert on hot coffee or coffee burn cases, mostly for the defendants (the retailers) and in his book Hot Coffee he essentially says there are two types of coffee burn cases (and this is my summary of his statement, not a quote):  When the employee spills the coffee on the patron, they need to settle that case, but when the patron spills it on himself, the retailer may be beetter off fighting it. 

Is this gospel from on high?  Of course not.  But it is based on a rather detailed investigation of the many coffee cases across the nation.  For the most part, juries don’t seem to have much sympathy (with some exceptions) for people who spill coffee on themselves.  But they do have sympathy for people who have coffee spilled on them.  And when I think about it like that, it makes complete since.

I wonder if this case would have played out differently if the employee had spilled it.  If other cases are any predictor, it might have.  But that wasn’t the scenario he had…

Be careful with your coffee, and don’t get burned by it.

 

I’ve already written a (I think several) post(s) on what is covered by Workers’ Compensation in NC.

But I think it makes sense to approach this question from a different perspective:  What is NOT covered by Workers’ Compensation in NC? There is one big thing that most people don’t know.

Let’s start by saying that Workers’ Comp (WC) is NOT like a basic personal injury case.  In a personal injury case in NC you might be able to recover medical expenses, lost wages, and pain and suffering (maybe some other stuff, but these are the main three).  In WC claims you don’t necessarily get all of that.  As I’ve explained before, WC really only covers three things:

1) Payment for your time out of work, but reduced to 2/3 of your average weekly wage;

2) Payment of your medical expenses, but directed by/essentially controlled by the insurance company, and;

3) Payment for any permanent disability, be it partial or total.

So what do you NOT get from WC in NC?

Well, you don’t get ALL of your wages.  You only get 2/3 of your average weekly wage.  The theory being that you’d lose about 1/3 of your gross earnings to taxes/FICA, etc., so they are only on the hook for the other 2/3. But that’s not the worst of it.

You also don’t get pain and suffering.  That’s the big one that people don’t realize most of the time.  It’s somewhat deflating to people when they come in with a claim where they think they are “covered” for all of their losses, only to find out they essentially just get made whole from a financial loss standpoint and there’s nothing to pad the claim with or otherwise “award” them for the suffering they endured as a result of their injury.  This is the hardest thing for most people to accept.  It is in someways ameliorated by the permanent impairment provision, but not always.

“Why is that”, you ask?

I like to say that the “Comp” in Workers’ Comp stands for “Compromise.”  You see, before the Act, if you were hurt at work you got nothing unless you could prove your employer was somehow negligent.  Under the Act, fault doesn’t matter (for the most part), so you’re covered, at least to the point that the Act requires.  In the bad old days, if it was your fault, you were stuck holding the bag and got zilch from your employer.  So the WC Act is a compromise between helping injured workers with a safety net of some sort, but not exposing employers to burdensome liability for things they might not be able to control.

What’s the upshot? Something is better than nothing, so I’m glad we have the WC Act.  But make sure you don’t get stuck with nothing (that, my friends, is an acceptable double negative, so grammar trolls back off).  Talk to an attorney if you have a work injury.  Maybe me – 919-929-2992.

 

No.

That was a good article, wasn’t it?

If you’re the type that wants more info, here ya go:  Generally speaking, less is more when it comes to speaking to the at-fault insurance company after an auto accident.  I look at it as a Miranda Rights situation:  Whatever you say can and will be used against you by them, so err on the side of silence.

“But how will they ever get my side of the story?”, you might ask. Well, ideally you will have a good accident report (and you should give a statement to law enforcement, just make sure you don’t equivocate and accept any blame for anything, assuming you are in the right).  The insurance company folks should be able to use that report to make a decision on liability, so they really don’t NEED a statement; they just want a chance to get you to slip up and give them a way to wiggle out.  The more versions of your statement exist out there, the more inconsistencies can be found, so be careful.

Of course, there are exceptions to every rule.  Sometimes, either because the adjuster/insurance company is just an A$$#^! or perhaps the facts of the accident allow them to do so, they may decide to deny the case in the absence of a firm statement from you.  Frankly, they have the check book and you want the check, so if you want to settle the claim without filing suit then you may be forced into making a statement.  This may or may not be a good idea, so you should seek counsel if you have any doubts.

Let me know if I can help.  919-929-2992.

Everyone knows that they want to get their medical bills paid for after an auto accident or after sustaining some other injury that wasn’t their fault.

Almost as many people know that they might deserve something for “pain and suffering.”

Others might realize that they may have a right to recover lost wages from the at-fault party.  But remember that as always, the burden of proof is on the plaintiff, so you, as the victim, have to prove your lost wages.  So how do you do that?

The first step is justifying your absence from work.  Do you have a doctor’s note for the time period?  That’s best.  The law doesn’t require one exactly but if you’re arguing to a jury, it would be helpful to show that you missing work was due to more than you just not feeling like going.  Don’t get me wrong, not feeling like going can be a legitimate reason; who would feel like going to work after breaking a leg? Why would you need a note?  But in these situations, more is better, so if you can get a doctor’s note, that’s best.

Next we have to show what that loss was exactly.  Most of the time I ask clients to have their employers provide a note indicating BOTH a) how much time was lost, AND b) what that time was worth. 

**If any HR folks or Managers or Bosses are reading this, please, for the love of all things holy, provide lost wage letters with BOTH of those bits of info.  Having one without the other is absolutely #$%^&*&^%$%^ useless to your employee.  Please.**

For example, if you missed 10 hours and make $10/hour, you’ll want the letter to state those two things. Anyone can do the math once those variables are provided, so it doesn’t have to complete the equation.  But it darn well better have BOTH of those variables.

Short of that documentation, you can still get lost wages.  If you provide tax info, pay stubs, and a doctor’s note (or maybe no note in the case of short time periods) then we still might be able to extrapolate the value of the loss.  But once again, more is better, so don’t count on this method if you don’t have to.

What if you didn’t actually lose money, but spent vacation, sick leave, etc.?  Well, that’s still a loss, so you should still be able to recover the value. You’ll still need some documentation, but the fact that you had sick leave shouldn’t be a bar to recovery.

When you’re self-employed this whole process is more difficult because there is no independent third party to provide documentation.  You might be able to do the tax/pay stub method, but sometimes this doesn’t work quite as well for the self-employed.  Impossible?  No.  But this complicates things a bit and may need some expert assistance.

Sometimes insurance companies will automatically deduct about 1/3 of the lost wage number on the premise that you would have paid taxes on that money if you’d gotten it, so they don’t have to pay you any more than you would net.  I am of the position that this is erroneous, but it becomes a cost/benefit analysis as to whether it is worth fighting or not.

There ya go.  Now you know how to document your lost wage claim.  If you’ve been hurt badly enough to miss work, you might be better served to hire an attorney to help you.  I know a good one!  919-929-2992.

Greetings, faithful readers.  You are of course aware by now that I handle auto accident claims.  Generally, there will be a property damage component to these claims.  In other words, your car needs to get fixed.  For the most part, you don’t need help with that; you can use your own collision coverage to take care of that, or normally, with a little poking, the bad guys will get your car repaired.  There are a few tips I can give you to help that move along, but that’s for another post.

But can you do anything about the value lost on a repaired vehicle?  Yes, you can.  Obviously, when a vehicle undergoes considerable repairs from an accident that information is going to follow the vehicle for the rest of its life.  If you have a newer car with limited mileage, this can result in a significant loss of value in the re-sale value of your vehicle.  So what do you do?

As part of your claim you can raise a diminished value claim.  This kind of claim is what I call a “pay to play” type of claim.  You have to spend some money to get a positive result. In other words it normally won’t help you to just say, “Hey, my car is worth $3000 less.  Write me a check.”  You will want to hire an appraiser to give an educated opinion in a report as to the loss of value and then present that to the adjuster.  Often times this can help cushion the blow of making your new car a little less shiny and new.

Probably the most important thing to remember on diminished value claims is the timing.  The regulations state that you must make that sort of claim in a “reasonable” time frame.  They don’t say what time frame isn’t reasonable, but they do say that 30 days is reasonable.  Is after 30 days OK?  Maybe, but let’s not be the test case.  Do it right after it gets repaired.

Of course, as with virtually all aspects of these auto claims, having an attorney will help that go more smoothly.  How?  Well, we can give you a good idea as to when it might make sense to make this sort of claim and when it might be best to punt (we know when to hold ’em and when to fold ’em, for the most part). We can also give you an idea as to the type of appraisal you want in your particular situation (does it merit a super fancy one, or should you go cheap?).  We are professional negotiators, too, so that helps.

So, if you’ve been in an auto accident and want to talk about your injuries and maybe your car’s injuries too, let me know.  919-929-2992.

Everyone knows that in our system of justice, when someone injures you due to their negligence, you may have a right to collect from them the damages you incur.  This would probably include medical treatment costs, pain and suffering, lost wages, and maybe some other stuff.

But what most people don’t appreciate until they’re in the position of a victim is that the victim initially bears the costs of their treatment.  In other words, we don’t have a “pay you as you go” sort of system, but more of an “all at the end (if you’re lucky)” kind of system.  What that means is that the person responsible for your care isn’t going to pay your bills as you incur them, but at best will reimburse you for them when it’s all said and done (future care can be different, when applicable, but that’s for another post).

So when you’re an accident victim, you have to take care of your bills until the time is right to collect from the bad guy.  That could be years and thousands of dollars later, so what do you do in the meantime?

Well, if you’re lucky you will have health insurance to bear the brunt of your treatment costs.  Thanks to the Affordable Care Act http://www.hhs.gov/healthcare/rights/ more people than ever are covered by health insurance.  In that situation, you will have co-pays and deductibles to deal with, but more often than not that is better than paying for everything as you go.  But what about people that don’t have health insurance?

That’s a problem.  When you are catastrophically injured, the reality is that you are likely to go into debt.  There are some safety net programs (Medicaid) that might help, and many hospitals will have charity programs that can help as well.  In addition, if you’re disabled you might qualify for Medicare, though that could be a long time in the making.

When you are not catastrophically injured and have soft tissue neck and back pain, and maybe all you need is some PT or chiropractic (which describes the overwhelming majority of auto accident victims), then you won’t likely qualify for charity, but you may still be able to get the treatment you need.

Most chiropractors in North Carolina will treat you on a lien basis, meaning they will follow the law to perfect a claim on your settlement money so that all or part of their bill will have to be paid from your settlement.  For them it’s a win/win – they have faith that they will get paid in the long term, and in the meantime you get the treatment you need to help get you better.  Some Physical Therapists do this, but I don’t know of many, myself.  And I do know of one diagnostic company (X-rays, MRIs, etc.) that treats on a lien basis.

So if you’re injured in an accident and aren’t sure how to pay for treatment, call an attorney and talk to them about what options you may have.  I know one, and he’s pretty awesome.

 

http://www.ncleg.net/gascripts/statutes/StatutesTOC.pl?bPrintable=true&Chapter=0044

One issue we encounter in almost all personal injury settlements is figuring out what we have to pay back to health care providers when we are disbursing the settlement funds.

The answer depends on what your definition of “have to” is (credit to Slick Willy for that).

Technically, a patient owes what he owes, so regardless of what we pay or don’t, the bill is his to deal with.

But having said that, there are some protections built in to the law for accident victims, particularly when the settlement is not quite sufficient to take care of everything (and by the way, that insufficiency occurs often because of a dispute regarding the liability and/or damages on the claim).  Particularly, the General Statutes starting with 44-49 and going through 44-51.  This is the main part of the lien statutes that we have to deal with in the personal injury context.

There is a HUGE misconception as to what “lien” means.  Many providers think that patients create a lien by agreement.  That is not exactly true.  A lien is a statutorily created mechanism to create a right of recovery on behalf of a third party to an identifiable set of funds.  In order for the lien to be valid, or be “perfected” as they say, the provider has to do TWO THINGS to perfect their lien:  They have to provide the records/bills FREE OF CHARGE and they have to give NOTICE of the lien.

Free is easy.  If they charge, that ain’t free, so they don’t have a lien.  Notice is a little more tricky, but a very low bar to pass; all they have to do is write “lien” on the bill and that’s sufficient.

So if there is no perfected lien, we don’t have to pay the bill from the disbursement.  That doesn’t mean the client doesn’t still owe the bill, it just means that there’s no right of recovery on behalf of that provider on the settlement funds.

If there is a lien, then we have to pay SOMETHING from the settlement.  That means either all of the bill, or less.  Well how much is less?

The statutes allow for a pro rata disbursement when there isn’t enough to go around.  What does that mean?  Well, after attorney’s fees are taken out, the victim gets 1/2 of what’s left over in pocket.  The other half is divided, proportional to the percentage of the total lien debt, amongst each provider.  That last bit is what “pro rata” means.

As with a lot of what we do, this can be very complicated and overwhelming, so it’s just one more reason that you don’t want to handle your injury claim on your own.  Take my advice, and take my advice – see what I did there?  Get a professional to help.  Call me. 919-929-2992.