PIP coverage and NC auto accident injury claims

North Carolina is a liability state, which means if you’re in an auto accident, you’re going to make a claim (normally) against the at-fault party, whose liability insurance should cover it.

If you happen to reside in a state with PIP coverage, that can create a weird intersection between insurance coverages.

PIP (personal injury protection) coverage insures you against other people’s negligence as well as your own. So if you’re in an auto accident, regardless of who is at fault, your carrier takes care of your losses. Different states have varying versions of PIP coverage, none of which I’m an expert on, but you can imagine that if a PIP customer has an NC auto accident, they’re going to have some interesting questions to answer.

Sometimes the PIP won’t cover out of state accidents. Sometimes they’ll cover it, but expect to be paid back by the liability carrier. Sometimes they’ll cover it and not expect to be paid back. That last one is my favorite, so fingers crossed if you have this issue, you get that as your outcome!

The bottom line is this stuff is complicated, so seek competent legal representation. Call me at 919-929-2992.

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Bicycle Accident in NC?

Bicycle accidents can be devastating to all parties involved, particularly the bicyclists. With an almost total lack of protection from impact coupled with high speeds, the injuries from these accidents can really leave a mark. These accidents can also result in huge financial exposure to the at-fault party and maybe even criminal prosecution.

Before you set off on a bike ride, it’s a great idea to brush up on the law. No point reinventing the wheel, so just look here:

Knowing your rights and responsibilities can help reduce your risk out there, so in this case, knowledge is truly power…power to protect yourself.

If you’ve had a bicycle accident, call an attorney for help. Call me at 919-929-2992.

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Medical Advice from your Attorney?

There is often a misconception that as a personal injury attorney part of my role is to make health care recommendations. This is absolutely not true.

I can understand why people think this, though. There are a lot of mixed messages sent through the media about what role personal injury attorneys play in health care. In other states I know that this is an even more blurred line, and even in this state that are many PI attorneys who get a little too deep in the accidental practice of medicine.

I try to constantly remind my clients that my job is NEVER to make healthcare decisions for them. I am not that kind of doctor, obviously (I have a J.D. not an M.D.), so I shouldn’t be making decisions or recommendations about healthcare; and neither should other unqualified attorneys. But there is a part of my job that is different, but only by a subtle distinction: One of my roles is to help you, the injured party, make healthcare decisions for yourself, knowing what the impact of those decisions might have on your claim.

It’s important to let that distinction marinate for a second. I don’t make healthcare decisions. I help you to understand how your decisions might impact your claim. Then YOU make those decisions, whether they help or hurt your claim, based on what’s best for your health. But you at least know the impact on your claim, for better or worse, before making that decision.

That is subtle, I get it. And it can be frustrating for clients who really just want someone to make decisions for them and solve their problems. I get it. I want to help. That’s why I’m here and that’s why you hired me! But it’s vital that a client should understand that I can’t make healthcare recommendations. I can help you understand what your options are and how those options might impact your claim. This, in my mind, is infinitely better than an unqualified person making healthcare recommendations. I’m making sure your healthcare remains where it should, in your hands, and at the same time empowering those decisions with knowledge about how you can help or hurt your claim with those decisions. I think that’s a big deal.

The take-home point is this: When you hire a personal injury attorney, you shouldn’t expect us to make healthcare decisions for you. But you should expect to get solid advice as to how your different options might impact your claim. So you can see how important it is that you constantly keep your attorney updated as to any changes/developments in your recovery and treatment so s/he can advise you.

Call me at 919-929-2992.

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Firing Your Attorney

It’s never fun to break up, but sometimes it’s the right thing to do. If you’re not getting the service you want from your attorney you should try to have a candid conversation about your expectations and how they might be able to fulfil them. If you can’t talk it out and get on the same page, though, perhaps it’s time to “go in a different direction,” as they say.

If you have to fire your attorney, it really shouldn’t be that hard. Granted, there are different kind of contractual relationships that you might have with an attorney that might lead to a more complicated scenario, but let’s talk about the personal injury scenario exclusively.

You probably have what’s called a contingency fee agreement, which means that your attorney doesn’t earn a fee unless and until they get a recovery for you. So up until then, you don’t owe them a fee. Of course, if they spent a lot of time on your case they might have what’s called a Quantum Meruit claim, but then we’re talking about the hourly efforts they put into your case and depending on the stage at which you fire them, they may not have put in enough hours to make the pursuit of such a claim profitable. So chances are firing your attorney will not have a hugely adverse financial impact on you, though your particular situation may vary.

So how do you go about firing them? Rule 1.16 (a) states that a lawyer shall withdraw (that means they are compelled to do so) when they are “discharged.” My reading of that is that if you tell them, in whatever format you might choose – text, email, phone call, voicemail, snail mail, whatever – that they’re fired, then they’re fired. Period. I recently had a client come to me after discharging her previous attorney and they gave her a whole rigmarole about not being able to fire them without her actually speaking to the attorney to discharge them. I think that’s a violation of the above-stated rule. If the client says you’re fired, you’re fired. Now, if the attorney wants to talk to you about it, then that’s up to the attorney to seek you out and if you agree then you can have that dialog. But I don’t think they can make any sort of requirement on their own. Once you give them notice that you don’t want them on the case anymore, then they can’t be on the case anymore.

One of the things you learn in law school is that the best way to win an argument is to know the rules of the conflict. Here is a great article for lawyers about firing clients and disengagement in general. If you understand the attorneys’ point of view on this, then that will help you get your way all the more easily.

Hopefully you don’t ever have to fire an attorney, but if you do, good luck. And make sure you find an attorney that you can work with ASAP!

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Personal Injuries and DWIs in North Carolina

If you’re injured by a drunk driver in North Carolina, your claim should be taken VERY seriously by everyone involved.

Obviously, drinking and driving is bad. But there’s more to it than that. From an injury claim perspective, the value of the claim is significantly enhanced. Here’s the scoop: In a negligence claim you can seek to recover from the tortfeasor what are called “compensatory” damages.  That essentially means reimbursement for what you lost: medical treatment costs, lost wages, and something for pain and suffering are the traditional big three items we are looking for (what I call the Holy Trinity of personal injury law).

Every state is different, but n North Carolina you can, under very limited circumstances, ask a court to award you not simply the compensatory damages (paying you back for what you lost) but you can also ask the court for punitive damages. Those are damages that have NOTHING to do with your losses; they are simply there as a possibility to deter that sort of behavior.

What’s more, in the VERY limited circumstances that you can request punitive damages, the amount you can request is limited in North Carolina to the greater of three times compensatory damages or $250,000. However, there is ONE exception:  In DWI injury claims, there is NO LIMIT TO PUNITIVE DAMAGES.

This is an IMMENSELY important fact. In NO OTHER instance in NC can you ask a jury to just make up a punitive number that they think is warranted under the circumstances. It’s bananas.

But there’s always a catch, right?  Where does that money come from? Granted, some of the people driving drunk and smashing into folks have deep pockets, but certainly that’s not the majority of them. How are you going to actually GET the money from a punitive damages award?

The good news is that automobile liability policies are responsible for punitive damages in NC (this is not the case in some states, I’m told). So that means that if you get a punitive damages award, the at-fault carrier is on the hook!  This is good, but the fact is that most people in NC have a minimum limits policy which at the time of this writing is $30,000 per person.  That means that the total amount that any one plaintiff could recover from that kind of policy, whether it’s just compensatory or compensatory AND punitive damages, would be $30,000.

So what do you do then?

If you have Underinsured (UIM) motorist coverage AND your recovery exceeds the limits of the at fault party, you might be able to recover against your own policy.  Don’t hesitate to do this by the way, regardless of it being your own policy. This is PRECISELY what you’ve been paying for all these years so it would be the height of foolishness not to use it. While UIM policies are there to help fill in the blanks left by lower limits policies, they are not on the hook for punitive damage verdicts, so you shouldn’t be willing to try your case on the hopes that you’ll get punitives covered by your own carrier.

This is weird and complicated stuff. All the more reason to talk to an attorney. Talk to me! 919-929-2992

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How to know you’re REALLY done with treatment

This post is admittedly a little “inside baseball” in that it deals with a very particular question in the claims management process. But it’s a question that’s arisen enough that I think it merits its own blog post, so here we go…

When we begin your claim, one of the many things I tell you is that when you’re released from medical care and deemed to be at “maximum medical improvement,” (MMI) that’s the point at which I request all of your records and bills. So it’s vital that I know precisely when that occurs.

What often happens is that a health care provider will predict to a patient that their next visit will be their last, or they’ll be done in 2 more weeks. The patient/client might hear that as fact and then report to me that they will be (future tense) done then.

The problem with that from my perspective is two fold: First, you might not actually be done, and second, you might not be at MMI.

I would say that more often than not, when a provider says you’re going to be done in 2 weeks, they actually end up having you come back at least once more, and maybe for a whole new round. The thing is, we just don’t know! So what I don’t want to do is take the 2 week prediction as fact and send out requests, only to find out it was inaccurate and then have to send those same requests yet again some other time when you are actually released. Let’s not do extra work. Let’s just wait until you’re actually released and truly done with treatment.

And even if that provider says you’re done with treatment, are you really at MMI? They may not think you’re at MMI until 1 year post-incident, or maybe 3 months post-release from care. Until you’re at MMI, they ‘re not going to be able to give me a full picture of your recovery in their notes, so even if they’ve predicted your release, you may not be at MMI, which means it’s just not time for me to go fetching stuff.

In short, you’re not REALLY done with treatment until your doc says, past tense, you are done with treatment. That’s when you know you’re done, and then it’s time to tell me. Not two weeks before. Not any time before. But AFTER you’re ACTUALLY released.

I know, I know, it’s a little picky, but that’s what you’re paying me for, to be picky about your claim. That just means I’m doing it right! If you have an injury claim in NC, call me at 919-929-2992.

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You probably don’t need an attorney for a property damage claim

I’ll be the first to tell you that any kind of insurance claim can be needlessly complicated. That’s essentially why my job exists. If handling your own bodily injury claim in North Carolina was easy, I would be out of a job. The good news is that handling the property damage portion of your claim is probably something you can handle on your own. In fact, having your attorney handle that bit, too, might even make it worse. Why is that? Soooo glad you asked!

The first thing you should know is that if you’re in an automobile accident in NC your property damage claim and your bodily injury claim are SEPARATE. It’s OK to handle the first one without finalizing anything on the second. If you’re worried about it, get an attorney for your injury claim and they can walk you through it, but you don’t need them to handle the property damage portion (more than likely, anyway).

There are really just two kinds of property damage claims: Repairs and Total Losses. If your car needs repairing, take it to whatever shop you want (you’re not forced to use anyone the insurance carrier recommends, but you can) and have them work on it. The carrier might send you an initial check, but don’t worry! That’s not the last one, I bet! If the body shop sees other stuff that needs work (they almost always do) they’ll ask the carrier themselves to send a supplemental check and that’s normally done pretty seamlessly. When you get the car back, just make sure everything feels right and the second you notice anything off, take it right back and tell them. That should keep it on the at-fault carrier’s dime and not yours, so don’t wait too long!

If the costs of repairing your car exceed 75% of the car’s value (a moving target, btw), then the carrier can deem it a “total loss.” At that point what they owe you is the fair market value of the vehicle at the time of the accident. An average of the stuff you find on websites will give you an idea as to what that number is (let them give you their number first, as sometimes it will exceed yours, but not always). If you really, really, really love your car and want to salvage it, they’ll give you near FMV (minus a few hundred bucks) and you can have it and do with it as you wish.

Most of the time, these things go fairly smoothly. More importantly, there’s not much that an attorney can do to change them. Repairs need doing or they don’t. The car is worth roughly what it’s worth. There’s not a lot to argue about in these situations. Of course, there are exceptions to every rule…maybe it’s taking too long, maybe the values you’re discussing are night and day, etc. If you’re really having trouble, you can talk about those issues with an attorney, but just keep this in mind: Almost no one is happy about their property damage. It either took too long, it was too inconvenient, they hated the rental car, or they really wanted their car to be worth more than it was. It’s just hard to be satisfied with the state of our system. But there’s a lot more that an attorney can do with your injury claim, so maybe that’s where you can find some satisfaction. Call me at 919-929-2992.

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NC Injury Claim Tips

You’ve been hurt in an accident in North Carolina. You need to make a claim to make sure you’re reimbursed for your losses. What are the best tips a seasoned NC personal injury attorney would give you? Here ya go:

  1. Everything you say can and will be used against you. You will probably be asked to make a statement about how the accident leading to your injury occurred. You should assume that every word out of your mouth will be turned against you, so think twice before making a statement. If you’re in a position where you feel like you have to talk, then make your statement clear, simple, and concise. But also consider that you should maybe talk to an attorney before talking to anyone else about how the accident occurred.
  2. Don’t “tough it out.” I know, I know. You don’t want to make a big deal out of it or whatever. But if you’re hurt, you’re hurt. And that means you should seek medical treatment/advice. The longer you delay that, the worse your claim will be treated by the insurance companies involved in it. You get ZERO points and do your claim no favors by trying to be a tough nut and act like you’re not hurt. If you’re feeling in any way different after the accident than you did before it, get checked out.
  3. Use your health insurance. This is one of the common mistakes that people make, thinking that the at-fault insurance carrier is going to pay for their medical treatment. They might. But that’s only AFTER the fact. In our state, you own your medical bills until you make someone else own them. And this is why you have health insurance, so use it! If the health care provider thinks they shouldn’t, tell them they’re wrong. If they insist they can’t, then seek another provider. Chiropractors are the exception to this rule in that the co-pays compared to the frequency of treatment really make it somewhat unattractive to use your health insurance with them. But for pretty much every other health care provider, use your health insurance!
  4. As soon as your health care situation is stable, talk to an attorney. I never want to be someone’s first call after an accident. If you’re in an auto accident, call the police first. Then get your care situated. THEN call me. But at the same time, don’t delay too long! Seeking advice too late in the process just increases the pool of time during which you can be manipulated into making a mistake. So talk to an attorney as soon as you can after your health care situation is stable.

Could I give you more? Maybe. But these are the high points. Follow these rules and you’re setting your claim up for success. Fail to follow them and you’ll see what happens. Call me at 919-929-2992.

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Hesitant to Hire a Personal Injury Attorney? Don’t be.

Perhaps you’ve heard horror stories of dealing with attorneys (no call backs, they get paid more than you do, etc.). Perhaps you’re worried about the claim taking longer than it would otherwise if you hire an attorney. Perhaps you think hiring an attorney is an unnecessary escalation that is going to create a worse outcome. Whatever the reason, lots of people have given me lots of reasons why they were hesitant to hire an attorney. For the most part, they were unfounded (though very understandable). They simply just didn’t know the truth. Here’s as much truth as I’m legally allowed to put in one blog post:

Some attorneys do suck. I’m not naming names, but some attorneys (or their offices, really, to be more precise) have a bad reputation for not being very communicative, not calling clients back, not keeping clients in the loop, etc. It’s a thing, for sure. The trick is NOT hiring one of those. But how are you supposed to know? First, ask your friends and family for referrals. If someone says they had a good experience with an attorney, ask them what was good about it and go from there. That might assuage your fears. Second, for the most part, you can trust Google Reviews. Those are not easy to fake, so for the most part those are actual clients sharing actual experiences, so you can probably go by what they say. Third, call around and see what you get. Who is answering the phone? Is there some Byzantine system for actually talking to an attorney, or do you get to talk to an attorney (not a case manager, not a secretary, but THE attorney) immediately? This will tell you a lot about what to expect.

Yes, sometimes claims take longer than you think. But maybe that’s more about your expectations being wrong and less about the performance of your attorney (though that can be a factor, of course). The first thing you should know about how long your claim should take to resolve is that there is normally no reason that settlement discussions should happen until AFTER you’re done with your care. So the length of your recovery is the biggest factor in how long your claim will take to resolve. It’s not the only one, but it’s massively important. Your reaching maximum medical improvement is the indicator for an attorney to start trying to gather all relevant material to value your claim, so until you reach that, you’re just going to have to be patient. Moreover, JUST because you hire an attorney doesn’t mean your claim will take longer. Think about it: What do I have to do with how long your treatment takes? And if that’s the biggest factor, how am I prolonging things? Now, don’t get me wrong; handling insurance claims does fall under the old maxim, “Do you want it done quickly or do you want it done right?” Sometimes for me to do a thorough job I need time to do my job, but that normally doesn’t add a significant amount of time to the claims process.

Hiring an attorney is not an unnecessary escalation and will not/should not result in some negative consequence in and of itself. Think about it: If you’re an adjuster, would you rather work with a personal injury attorney who knows exactly what you need to give him the best value on a case or some first-timer who is injured, stressed out, and totally clueless? Trust me, adjusters don’t take it personally when you hire an attorney, and they may even thank you (silently, of course). But more importantly, who cares? Are you worried about pissing off your toilet by hiring a plumber to fix it? That’s just dumb. If you have a problem that requires a professional, hire a professional to deal with it.

I get it. It’s a big deal and you want to make sure you’re making the right decision. The thing is you just don’t know until you try, but to me, the logic is on the side of trying as opposed to winging it on your own. Call me if you want to talk about it. 919-929-2992.

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Chapel Hill/Durham Pedestrian v. Auto Accidents

In the Triangle, and in Chapel Hill specifically, we probably have a LOT more pedestrian activity than most areas in North Carolina. With lots of college kids, youngsters, and commuters, auto accidents involving pedestrians are all too common.

You would think these wouldn’t happen as much as they do. We have traffic lights and crosswalks galore to help prevent these accidents. But people on both sides have problems following the rules (often because they don’t know them, but more often because they are distracted). But even then, once a pedestrian is in the roadway, drivers have a duty to yield, even if the pedestrian shouldn’t have been there. This is quite reasonable when you think about it because we’re just allowed to kill people simply because they’ve made poor decisions. But this can look very different in different situations. We are all under a “reasonable person” standard – drivers AND pedestrians (see my work on Contributory Negligence) – so we have to do what a reasonably prudent person would do in similar circumstances. So should someone walk across I40 at night wearing dark clothes? Probably a bad idea. Conversely, if someone jay walks on Franklin Street, can I run them over without fear of consequence just because they were breaking the law? Nope.

As with many aspects of the law, things can be nuanced and you’d probably be best served to speak with an experienced personal injury attorney if you have a pedestrian v. auto accident claim.

Call me for help with any injury claim. 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

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