Pool Safety This Summer

I don’t do a lot of premises liability claims, but I thought it might be a good idea to remind folks about a few safety ideas concerning pool use…

CONSTANT VIGILANCE!

Do your best Mad Eye Moody here. Always have an adult supervising kids in the pool (even the big kids with the alky drinks!). Just having someone who is responsible watching for trouble can be immensely helpful.

SAFETY EQUIPMENT

Have several floats, poles, and/or ropes available in case of emergency. Having something quickly at hand can be the difference between a good and a bad outcome.

AROUND THE POOL A PERIMETER CREATE!

That’s a Yoda reference for y’all not in the know. In most states you’re required to have a locking gate and fence around a pool. Self-locking is best. The idea is to avoid unauthorized entry, especially by little ones.

YOUR POOL, YOUR PROBLEM

Having a pool can be awesome, but with great power comes great responsibility. Check your homeowner’s insurance (talk to your agent!) and make sure you’re covered. Also, if you have a pool, you darn well better have an Umbrella policy. Try to avoid trouble, but have a plan in place in case there is trouble.

I hope all of that is helpful but not necessary advice for you this Summer. As always, if you have any injury claim questions, give me a ring at 919-929-2992. Enjoy!

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NC Negligence Claims In a Nutshell

Personal injury cases in North Carolina are normally based on a theory of negligence, meaning someone failed to act reasonably in a particular situation. Most of the negligence claims I handle are from automobile accidents, but sometimes I handle slip-and-fall incidents, dog bites, and occasionally medical malpractice. Each of these scenarios normally involves a negligence claim.

To establish a good negligence claim, four fundamental elements must be present: duty, breach, causation, and damages. This is not the case for intentional torts, but that’s for another post. Here’s a breakdown of the elements of negligence.

Element 1: Duty

This is the legal obligation to act as a reasonable person would under similar circumstances. This can mean a lot of different things. For example, all drivers have a duty to follow State traffic laws and exercise due caution to avoid harming others on the road. Businesses have a duty to discover and warn of dangerous conditions.

Element 2: Breach of Duty

A breach of this duty occurs when the responsible party fails to meet the standard of care referenced above. This can mean a lot of different things, obviously. An example might be a driver texting while driving and causing an accident. 

Element 3: Causation

Causation is where the rubber meets the road in these claims. Plaintiffs have a duty to prove that the breach (above) caused the damages (that we’ll explain below). Remember, in a North Carolina civil claim, the burden of proof is a preponderance of evidence, meaning “more likely than not,” or reduced to numbers, 50.1% more likely to be true. That’s not impossible, but it can be hard.

Element 4: Damages

Damages in personal injury cases are often categorized as economic and non-economic. Economic damages are the “hard numbers,” like costs incurred by the plaintiff, while non-economic damages cover more subjective things such as pain and suffering, or whatever you might call that.

As always, this stuff can be complicated. If you’re hurt in North Carolina, call me at 919-929-2992.

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Why you don’t want to handle your own injury claim

Whatever you do for a living, I guarantee you that you’re better at it than I am. So why would you think you’re better than me at doing my job?

If you have an injury claim in North Carolina and want to handle it on your own, you’re welcome to do so. To me, it makes sense to hire a professional to do what they’ve been trained to do well rather than you trying to figure it out on the fly. For serious claims, there’s just to much riding on it.

If you have a North Carolina injury claim, before you decide to become an amateur personal injury attorney, call me at 919-929-2992 for a free consultation.

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About My Medical Release

If you have a personal injury claim in North Carolina, at some point you’re almost certain to have to sign a medical release. Let’s talk about mine, in particular.

As your personal injury attorney, part of my job is to get your relevant (and sometimes irrelevant) medical records and treatment bills for the purpose of valuing and negotiating the settlement of your personal injury claim. These documents are the backbone of your claim and I am virtually powerless to do anything to resolve your claim without them. So how do I get them? That’s where the release comes in.

Congress passed the HIPAA legislation several decades back in an effort to standardize the handling of sensitive health information. In my opinion, it’s really only made things fuzzier, more complicated, and frankly more frustrating without giving any actual protection to patients, but that’s neither here nor there. The important bit is that medical releases have to comply with HIPAA, which sound simple, but trust me, it ain’t.

There’s a whole bunch of silliness that the release has to state (that in my opinion doesn’t really educate you on the process nor is it really relevant to most scenarios), but what really makes it horrible is that health care providers often have different interpretations of these rules. Many times, they are of the belief that only their release is HIPAA compliant and no other release can possibly work. This is nonsense, but it’s something we face.

Having said all that, my release has been found by countless providers to be compliant, but it’s compliant because it says what it has to say. I didn’t draft the law, so please don’t hold me to account for it. The release is drafted that way because we want it to comply with HIPAA, so we’re stuck with it. It’s way more complicated than it needs to be, but here we are. For me to do what you’ve hired me to do, I need you to sign the release.

One question I often get about my release is, “Why do you need access to records/bills from birth to death when we’re only really interested in stuff from the accident?” so let’s talk about that…

First, the release has to say what I have access to, and the broader, the better. As I mentioned above, people who work for medical providers, despite the fact that none of them are lawyers, LOVE to put their own twist on what the wording of HIPAA regulations mean. This means that if I’m asking for something that they think isn’t included in my release, they may arbitrarily shut down my request. The release is broad to make this less likely to happen.

Second, every case and client are different. Sometimes I have a 2 year old client and I will literally need everything from their birth forward. Other times that is not the case. But once again, being broad helps to keep my release from getting shot down.

Finally, though the majority of my cases don’t require litigation, sometimes they do. Once we file suit we will go through what’s called the Discovery process. In Discovery, the defendants have a right to review your medical history, and depending on the context that might mean 5 years back or 10 years or further. Already having a release signed that covers that will simply save us both time and headache and paperwork if we get there. It’s just more expedient. Please trust me when I say I have PLENTY of medical records to review on a daily basis. I’m not fishing through your history for fun.

Hopefully that helps you to understand why my medical release says what it says. As always, I’m happy to talk to you about it. Call me at 919-929-2992.

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Yes, the Law Applies to You, Too

Sometimes, a blog post isn’t as much about providing relevant legal information to help the public and to bolster my SEO; sometimes, a blog post is about me ranting. I hear it’s called “catharsis,” so if there’s a fancy word for it, it must be OK.

One of the reasons I’m thinking about not handling traffic tickets in Orange and Chatham and Durham Counties anymore is because people think they’re special. Thankfully, for the most part, my clients are understanding, patient, and humble human beings who understand that they’ve been caught breaking a rule that’s there for the safety of all of us and there are going to be some consequences. Those clients I love! They hire me to help mitigate those consequences, guide them through the process, and soften their landing on the other side of it. That’s something I’m happy to do as an attorney. Those clients are grateful for the help I provide and glad I could make the outcome better than it would have been. What I’m not happy to do anymore is to explain to a 40 year old white man that the law does, in fact, apply to him and he must, in fact, comply with it or he will, in fact, face consequences, despite his social standing and delusion that his white mediocrity somehow insulates him from the social contract.

Here is the reality: Speed limits are enforceable by law. Speeding is a “strict liability” offense, meaning your intent isn’t a necessary element of the crime. In order to prove in court that you were speeding (and therefore breaking a law) the ONLY evidence necessary is for the law enforcement officer to say he saw you driving and it’s his/her opinion that you were speeding. That’s it. That’s admissible evidence and sufficient to prove the commission of a crime. If a judge hears that they can, and often will, convict you of speeding.

So let’s say you’re charged with, I don’t know, let’s say a 66 in a 45. That’s 21 mph over the speed limit. If you’re convicted of that, DMV will revoke your license. You’ll also have a huge increase in your auto insurance premiums. What sounds better, that outcome above, OR you doing a driving school online for a few hours and having your charge reduced to a non-moving violation that won’t get you any DMV or Insurance points and your driver license will be saved? CLEARLY the latter is the better outcome, right?

The problem with the entitled members of our population is that they think they’re too special to do a driving school. They think, at least subconsciously, that they should be insulated from consequences because of whatever their mom or society has so far told them and that they shouldn’t have to face any repercussions for their mistake. The irony is that if you talk to many of these folks about crime and punishment in the abstract, they’re generally all for super strict law enforcement and draconian punishments for other people who break laws, but when they are the ones in trouble, all of a sudden the “system is broken,” or “this is bullshit.” Maybe both of those are true, but welcome to reality, friend.

Don’t get me wrong. If you’re wrongly accused of a crime, I am all for you getting a solid defense and having your day in court. But speeding tickets are, for the most part, fairly written. And in terms of relative effort, the path of compliance – getting me to work a plea deal out to save you money and save your license – is FAR better and simpler then you facing a trial for a ticket.

The bottom line is that there’s a segment of the population that thinks that the law shouldn’t apply to them. They think that other people should have to obey the rules but they should, for whatever reason, get a pass when they screw up. That’s what’s wrong with banana republics, my dude. When the law doesn’t apply to some, it help anyone. The best legal system fairly and reliably applies to EVERYONE.

If you get a ticket, suck it up and get some help. Hire a lawyer who knows the lay of the land and can help you mitigate the consequences of your mistake. Do what the lawyer says. Do not call the lawyer or email the lawyer and whine about “But it’s my first ticket!” or “But I only bumped into that old lady!” or “But it’s SOOOO easy to do 80 in my Lambo!” or you’ll run the risk of sounding like an entitled 5 year old. Let the lawyer guide you, follow their instructions, jump through the goddamn hoops like a responsible adult, and understand that the law does apply to you, too, pumpkin.

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How to Fire Your Personal Injury Attorney

Just tell them they’re fired. That’s it.

It doesn’t have to be those words, exactly. You can tell them you don’t want them to represent you, or you can ask them to withdraw, or whatever. English is a very versatile language and it’s easy to get the meaning across any number of ways.

The bigger question is about the consequences of that decision.

Most personal injury attorneys in North Carolina work on a contingency fee basis, meaning they don’t get paid unless they get you an award (be that by settlement or award at trial), at which point they get a percentage. As long as the case hasn’t been resolved, then you don’t owe them a fee if you fire them, at least on the contingency fee front. An attorney might make what’s called a quantum meruit claim, which is asking for payment of a reasonable hourly rate for the work they did. The vast majority of us won’t raise this unless there are some unusual circumstances, but it’s worth considering. If it’s early in the case, not much is likely to have been done, so you may not be risking much, but if it’s late…

Also, in North Carolina there is no such thing as an attorney lien. Some firms that are from out of state but somehow do business here will assert a lien on NC injury cases that they get fired on and I would not hesitate to let them know that’s a per se ethics violation according to the NC Bar.

This is, of course, not considering costs that the lawyer/firm might ask to be reimbursed. Costs are not fees. Costs are what the firm might have spent in pursuance of the claim, so if they spent money they’ll probably want to get paid back.

All of this, of course, should be covered in your fee agreement, so start there if you have questions. And remember, maybe getting a new attorney is the best thing for your claim, but maybe it’s not. Get some quality advice and do your due diligence before making any rash decisions. Call me at 919-929-2992.

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NC Injury Claims and “Letters of Protection”

If you’re injured in an accident in North Carolina, your health insurance is your front line of defense against medical expenses. Just because the injuries came about as the result of an accident and someone else might be on the hook for your damages DOES NOT take your health plan off the hook for what they should be paying.

Sometimes, though, you run into problems. One of those problems is just not having health insurance. Another of those problems is finding a health care provider who thinks they should not bill your health insurance simply because of the existence of a liability claim.

In the former situation, where you just don’t have health insurance, you’re in a pickle; you need health care but you don’t have a way to pay for it easily up front. In that case, going to a provider that will treat you on a lien basis makes sense. See the link for a more thorough explanation of what that is, but essentially it’s a deal where they treat you on the hope that they’ll get paid from your potential settlement proceeds. That’s totally fine (and frankly the norm with chiropractors).

In the latter situation, where you either have health insurance and the provider (very often Wake Med or some fancy PT office) just won’t bill it, the health care provider might ask your attorney for what they might call a Letter of Protection (LOP). I cannot and will not do that. To me, an LOP creates a conflict of interest for me, where I’ve promised to hold someone else’s interest above those of my clients. See the NC Rules of Ethics for why that’s bad. I particularly don’t like this idea when its obvious that the provider is just looking for a better payday on the belief that they will get paid more from a settlement than they would. To me, this is a violation of the provider’s contract with the health plan which probably states that they HAVE to bill the health plan (but be stuck with the plan’s “adjustments” which is another word for “discount”). It’s all very sketchy in my opinion. If they don’t want to take your health insurance you should talk to your health insurance about whether the provider has that sort of option, or even better, you should just seek a more reasonably provider.

This stuff gets complicated. Call someone with experience. Call someone you can trust. Call me at 919-929-2992.

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USAA Med Pay is the WORST

USAA has all of these commercials where they brag about how well they take care of their insured, the men and women of the United States Armed Services. Pffffttt.

If you don’t know what Med Pay is, this won’t make any sense to you, so let’s start with that. In North Carolina, we’re what’s called a liability state when it comes to auto accidents. Each driver is legally required to carry liability insurance to cover the damages caused to others by the insured’s negligence. Your own automobile insurance doesn’t (generally) cover your bodily injury damages UNLESS you have what’s called Medical Payments coverage (Med Pay for short). That’s a tiny bit of coverage ($500, $1000, $2000, sometimes more, but rarely) of no-fault coverage that you pay extra for that will help reimburse you for auto-accident-related treatment costs regardless of whether the accident was your fault or not. Cool, huh?

Not so cool if your insurance carrier is USAA. I’ve represented dozens of USAA insured over the years and almost every time they play insurance games with Med Pay claims. With almost every other carrier (State Farm, Geico, Nationwide, Allstate, whatever…) if it’s their first party coverage (a claim for their own insured) they look at the bills and write a check, easy as that. But USAA almost always first denies the claim. They won’t say you don’t have coverage when you do, but they will say that the billing isn’t right (even if it is). What they clearly want is for you to give up so you can’t get the benefit that you’ve been paying extra for.

Don’t put up with that crap. And definitely don’t put up with that crap from a company that is advertising how well they take care of their insureds. If you’re having trouble withe your liability claim and your USAA Med Pay claim, give me a call at 919-929-2992 and see if I can help. I’d love to metaphorically slap them about the face and neck.

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Why You Want Your Injury Claim to Be Average

Like it or not, if you have an injury claim in North Carolina, you’re probably going to have to deal with a liability insurance company. If you’re dealing with an insurance company your life is going to be a lot easier if your facts don’t deviate much from the norm.

At the end of the day, all of us in the injury claims world have to think, “What would a jury do with this?” If it’s something that is very average and happens with pretty much every case, then we can make a pretty good guess. If it’s something outside of average, or something that doesn’t often happen, then it’s harder for us to predict. The odder it is, the harder it is to predict.

That lack of certainty makes claims valuation really difficult when we’re working with unusual facts. If you’re lucky your injury claim will be average – average mechanism of injury, average diagnoses, average treatment, average cost, average recovery time – because that helps all of us (both the good guys and the bad guys) have a lot more certainty about what we might face at trial, which makes agreeing on a case value much easier and more likely. Conversely, if you’re unlucky enough to have some weird stuff – a weird accident, bizarre diagnoses, strangely prolonged recovery time, astronomical and inexplicable treatment costs – then that’s going to make it harder to agree on case value, which will make your claims experience much more trying (pun is totally intended).

Whether your North Carolina injury claim is average or not, or you don’t know, call someone with experience who can guide you in your case. Call me at 919-929-2992.

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Are you charged with reckless driving?

Traffic Attorney

I bet in your line of work, people have certain myths they believe and you have to spend an inordinate amount of time dispelling them.  This is like that for me. 

Sometimes people get a ticket they think is kinda fast (That varies wildly depending on who you are…some folks think 15 over is fast, some don’t really get worried until they’re past 30) and they often ask this question: “Does that count as reckless driving?”

Ugh.

In North Carolina there’s no such thing as a speeding ticket that is automatically turned into a reckless driving charge. It might be different in other states, but this is not a thing in NC. If you’re charged with reckless driving, you are charged with reckless driving.  If you’re charged with speeding, then you’re charged with speeding.  You might get charged with both, but you’ll know, because it’ll say both.  But just having a fast ticket does not get it promoted to reckless. 

You ARE charged with reckless driving if you’re charged under Sec. 20-140. It will be either (a) or (b). But you’re only charged with reckless driving if THAT statute is referenced in your ticket. Let me say it again for those folks in the back. There is NO speeding ticket that automatically becomes a reckless driving charge. That is not a thing.

Don’t listen to your friends unless they’re a lawyer, and even then, don’t listen to them talking about traffic law unless they regularly handle traffic tickets. Call someone who knows this stuff. Call me at 919-929-2992.

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Contact Jeffrey

Jeffrey Allen Howard, Attorney at Law, PLLC
1829 E. Franklin St. - Bldg 600
Chapel Hill, NC 27514

(P) 919-929-2992
(F) 919-636-4779

Address Doesn't Matter!