Injury Claims – Who is at fault?

People are hurt every day, all the time, 24/7. Sometimes it’s someone else’s fault. Sometimes it’s the victim’s fault. Sometimes it’s a mix.

How do you prove who is at fault in an injury claim? And what if it isn’t clear?

First, let’s talk about what it is to “prove” fault. In most instances we are dealing with negligence claims. That means the defendant (the person whom the victim is saying caused the accident) is alleged to have failed to act in a proper way, as opposed to an intentional claim, where the allegation is the defendant acted with the purpose of harming the victim in mind. In negligence claims you have to show 4 things: Duty, Breach, Causation, and Damages.

This post is more about the Duty issue. Everyone in North Carolina has a duty to exercise reasonable care to protect the safety of others and themselves. A plaintiff (the hurt side…that’s us!) has to show that this duty existed (and it almost always does) AND that the defendant breached that duty by failing to “act as a reasonably prudent person would in the same or similar circumstances.”

Back to the question…how do you “prove” that? Guess what? It’s totally a matter of opinion. Luckily, there are some acts that are defined as per se negligence, meaning that if you do them, you’re negligent, period, no proof or opinion needed. Violating safety statutes often will get you this per se negligence instruction, but not necessarily always. So the problem is having enough evidence to make the insurance representative, or if you’re really unlucky, the jurors, feel like it’s obvious that the defendant acted improperly.

In North Carolina, we have an extra hurdle here that most states don’t have. We have – solely because of the maleficent influence of the insurance lobby – maintained a vestigial remnant of English Common Law known as Contributory Negligence. “Contrib” as we call it in the business essentially means that if the victim is shown to be even 1% at fault, they can recover NOTHING from the defendant. Remember up there where I mentioned that everyone has a duty to exercise reasonable care? Guess what? This includes accident victims. So if there is evidence that an accident victim ALSO acted unreasonably and that act (or failure to act) was a proximate cause of the injury, then that victim might face a tough time getting treated fairly by an insurance company or a jury.

Injury law is complicated. If you have an injury claim, chances are there is too much at stake for you to risk muddling through this dangerous and complicated process all on your own. Don’t be silly. Talk to an attorney. Talk to me. 919-929-2992.

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Covid-19 Negligence Claims…They are coming

Thankfully, North Carolina hasn’t seen catastrophic numbers of Covid-19 cases. Knock wood. However, we aren’t out of the wood yet. From a legal perspective, this brings up an interesting question: Will there be claims made against entities for Covid-19 cases? I think the answer is most certainly yes, but they can and will take many forms.

What I will be on the lookout for are situations where an entity’s decision was the proximate cause for someone catching Covid-19. For example, let’s say a person goes to the grocery store and the store doesn’t require employees to wear masks. The person gets sneezed on by what is later learned to be a Covid-19 positive employee and then this person develops the sickness herself. Would she win a claim against the store?

Maybe. It sounds to me like a negligence claim. Did the store act in a reasonably prudent manner to protect the safety of its customers? I think under these circumstances requiring a face mask would be reasonable, so I think you could prove a breach of their duty. To me, though, the question would be proving the causation. Did the store’s negligence cause the victim to develop Covid-19? Seems likely. But how do you prove it was that exposure, and not another? We would have to have better contact tracing than we do now to make an easy time of proving that exposure. This also brings up the North Carolina-specific problem of Contributory Negligence. This might be a very possible defense to this sort of claim. Still, these are very plausible claims and it will be interesting to see what develops.

I think we’ll also be seeing way more Workers’ Compensation claims involving Covid-19. I think it should be possible to prove that under these circumstances Covid-19 would be an industrial disease. I don’t have a crystal ball, but I bet these cases are going to be popping up like mushrooms in the next 12 months.

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Get an attorney for your traffic ticket! Especially NOW!

You’re one of the few people out and about, and BAM! You get a ticket. Are you going to go to court and handle it?

Why bother!? First, why risk further exposure with the Covid-19 crises still looming? Second, it’s almost always a good idea to have an attorney help with a ticket because we know the best ways to help you reduce the many negative impacts that can result from traffic tickets. It’s a no-brainer. Especially now.

So if you have a ticket and are on the fence about getting an attorney to help. Get off the fence. Call me (or an attorney in the appropriate area) at 919-929-2992.

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Who should pay for your property damage after an auto accident?

After you’ve been in an auto accident there are tons of questions. Clearly, your health is the most important issue, but sometimes the damage to your car is a close second.

So who pays for the damage done to your car when YOU didn’t cause the accident? That’s a trick question. As with many questions in the law, the answer is, “It depends.”

Ideally, the person who caused the accident should pay for your property damage. In a liability state like North Carolina, that normally means the at-fault party’s liability insurance should pay for your property damage. Sometimes this runs smoothly.

Sometimes it doesn’t. In various circumstances you might be stuck waiting on the liability carrier to figure out what they’re doing. There could be many reasons for this, but there’s no need to go over them. So what do you do?

THIS IS WHY YOU HAVE INSURANCE! If you have collision coverage on your auto policy and are tired of waiting around on the liability carrier MAKE A CLAIM ON YOUR POLICY! It’s a no-fault claim, so your rates shouldn’t increase. AND your company owes you a higher duty since you’re their customer, so there’s a good chance (depending on the company) that it will go more quickly (and maybe successfully) if you use your own carrier.

“But what about my deductible?!” Yes, I know. Normally, your carrier won’t make you pay your deductible in this situation. Sometimes (depending on the company) they will, BUT they will get it back from the at-fault company for you at some point (hopefully not too long down the road).

So if you are in an accident that wasn’t your fault and the liability carrier is dragging their feet in getting your car fixed, call your own insurance company! You’ll be glad you did.

Of course, with all injury claim matters, call me at 919-929-2992.

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3 Reasons You Need a Worker’s Comp Attorney Now More Than Ever

Depending on your situation, it always made at least some sense to have some guidance from an attorney if you had a Worker’s Compensation claim.

But now with the Covid-19 issues and associated quarantine, Worker’s Comp claims can be even more crucial to your financial survival and your family’s future, so the help of a knowledgeable attorney is even more important. Here are three reasons why you shouldn’t be on the fence about hiring Worker’s Comp attorney for your claim now, more than ever.

  1. You have less bandwidth now: If you are out of work due to your injury, you probably spend some amount of time at home trying to figure out how best to handle your claim. But now with the quarantine you’re adding kids, homeschooling, pets, neighbors, and other distractions to the equation. And let’s face it: Trying to take yourself to internet law school is NOT the best way to handle a Worker’s Comp claim. What it took me three years in law school and nearly 20 years of practice to learn IS NOT ON A WEBSITE! The reality is that you simply don’t have extra time/energy these days to figure out how to do my job. So don’t bother trying…call a Worker’s Comp lawyer!
  2. You have less patience now: You were already stressed out. You suffered a nasty injury from work, you’re worried about your health, your future, your ability to provide for your family. Now there’s a global pandemic threatening our very way of life! How in the world are you going to have the patience to deal with an obstinate and adversarial worker’s compensation insurance system rigged in the favor of employers? Do you really want to run the risk of losing your temper and scuttling your claim, thereby putting your future in jeopardy? Or what if you just can’t take it all and want to give up? You’ve got too much to carry. Call a lawyer now!
  3. There is too much at stake: Every dollar makes a difference. Now more so than ever. We are all going to suffer financially as a result of Covid-19; I don’t think any of us will come out of this unscathed. So why risk getting everything you’re entitled to under the Workers’ Compensation Act by letting an amateur (that would be you) handle your claim? Why risk potentially thousands of dollars and important benefits NOW of all times? If you’re looking for risk, get into the stock market. If you’re looking for help, call a Worker’s Comp lawyer!

You’ve just got too much on your mind now, so why risk your claim? Call an experienced Worker’s Comp attorney and get the help you need now. Call me at 919-929-2992.

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3 Reasons You Need a Personal Injury Attorney More Than Ever

Personal injury attorneys have, since the beginning of civilization if I may be so bold to say, been useful. We’ve done the work that others didn’t want to do, or couldn’t do for themselves. Even in the absence of a national health crisis, we are a pretty useful bunch.

But now with the Covid-19 issues and associated quarantine, personal injury attorneys are even more vital. Here are three reasons why you shouldn’t be on the fence about hiring an injury attorney for your claim now, more than ever.

  1. You have less bandwidth now: If you’re lucky, you’re working from home. That means you’re trying to replicate in your home what was already not an easy task in your office, which was set up specifically for that task. And you’re adding kids, homeschooling, pets, neighbors, snacks, and all kinds of other distractions to the equation. Something that at the office would take you an hour now takes you 3 hours at home. If you’re not lucky, you’re out of work, which means you’re probably spending your time looking for work. Either way, you don’t have extra time/energy these days to figure out how to do my job. So don’t bother trying…call a lawyer!
  2. You have less patience now: These are stressful times. You’re worried about your health, your family’s health, trying to work from home, trying to take over your kids’ education. You’re worried about your future. How in the world are you going to have the patience to deal with an obstinate and adversarial insurance adjuster? Do you really want to run the risk of losing your temper and scuttling your settlement? Or just getting fed up and giving in? Call a lawyer now!
  3. There is too much at stake: Every. Penny. Counts. Now more than ever. We are all going to suffer financially as a result of Covid-19; I don’t think any of us will come out of this unscathed. So why risk getting less from your injury claim settlement by letting an amateur (that’s you!) handle your injury claim? Why risk potentially thousands of dollars NOW of all times? If you’re looking for risk, get into the stock market. If you’re looking for help, call a lawyer!

You’re doing more with less, you’re as stressed out as you’ve ever been, and every dollar makes a difference, so why risk your claim? Call an experienced attorney – I know one right here – and get the help you need now. Call me at 919-929-2992.

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Your Injury Claim in the Covid 19 Lockdown Era

Now that many municipalities are on a “stay-in-place” or lockdown order for who knows how long how would you get help with your personal injury claim?

Well, the good news on that front is not a lot has changed. I’m still available via phone. You can call me anytime at 919-929-2992. If you want a meeting that more closely resembles a face-to-face sort of thing, then we can zoom or use whatever software you’re most comfortable with. Documents can easily be emailed or mailed as requested, and you can still get the help you need without leaving your home.

So whether you have an auto accident, worker’s compensation claim, a dog bite, or a slip and fall, you still have access to legal help despite our current unfortunate circumstances.

If you have questions, please call 919-929-2992 and we can get started immediately.

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Worker’s Comp and Covid 19

It’s only a matter of time before someone catches Covid 19 while working and then raises the question of whether or not they’re entitled to Worker’s Comp benefits.

Right now, I don’t think anyone has a definitive answer on that. There are certainly opinions, some more strongly held than others. But let’s talk about the law and see what we can see…

For a disease to be covered by Worker’s Comp, it has to be an “occupational disease.” There are essentially two kinds: First, there are some specific medical conditions/diseases, which are recognized to be commonly associated with workplace exposures, are specifically identified in North Carolina General Statute § 97-53. Suffice it to say that Covid 19 ain’t one of ’em.

Second, though, is the catchall category. North Carolina General Statute § 97-53(13) is a “catch-all” provision which grants Comp coverage for any disease “which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”  The most common of these are carpal tunnel and tendinitis.

To qualify for the catchall provision, there are two elements:   The worker must show 1) that the employment placed them at an increased risk as compared to the general public for developing the occupational disease; 2) that the employment in fact substantially contributed to the occupational disease.

Personally, I think you could come up with a scenario where this argument passes muster. Let’s say we are, as a state, on a “shelter in place” order (I hear this is imminent at the time of this writing). That means if you aren’t deemed an “essential worker” then you are to stay home and not work. Which, conversely, means that if you are an essential worker, you are to get your @$$ out there and do your job…which means you are putting yourself at increased risk of exposure due to your employment AND your employment substantially contributed to the disease.

For example, let’s say you work for UPS, and delivery personnel are deemed essential. You’re out there going into ALL of the office buildings, ALL of the stores, ALL of the front porches, touching EVERYONE’S boxes. I think it’s obvious that you’re at an increased risk. And were it not for your employment, you wouldn’t be; you’d be at home eating bon bons and watching Tiger Joe (or whatever drivel is available on Netflix).

Now, what you get if it is deemed an occupational disease is for another post, so I’ll leave you here for now. If you have any questions about any workplace injury/disease, or any injury claim whatsoever for that matter, please call me at 919-929-2992.

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Cost Plus Plans are Full of $#!^

That’s right. I said it.

It’s no news that our health care system is a shambles in this country, and health insurance is only part (maybe a huge part, but that’s another post) of the problem. One of the more complex and frustrating situations is the Cost Plus plan and how it (claims to) interact with your personal injury claim.

North Carolina is an anti-subrogation state, meaning that your health plan CANNOT come back to you and ask you to pay them back what they paid out UNLESS they have some specific law that allows it. The most common exceptions to this are Medicaid, the State Employee Health Plan, Medicare, ERISA plans, and Tricare. These are either government-sponsored plans and/or set up under State/Federal Law that specifically allows for a “right of reimbursement” (NOT subrogation, but once again, the difference between those two is another blog post).

The Cost Plus plan is NOT one of the above. But the argument that administrators of Cost Plus plans make is that the statute that gives them life states “The administration of any cost plus plans as herein provided shall not be subject to regulation or supervision by the Commissioner of Insurance”. 

But the key word is “administration.” The word “administration” obviously doesn’t apply to plan benefits, but rather to the operation and management of the plan.  Anyone can see that under the plain meaning of the words in the statute, the Cost Plus plan’s collection efforts should be prohibited by NC anti-subrogation law.

The Plans argue that N.C. Gen. Stat 58-65-1, “Regulation and definitions; application of other laws; profit and foreign corporations prohibited”, states: “[The plan] shall be exempt from all other provisions of the insurance laws of this State, unless otherwise provided” exempts them from the anti-subrogation rule. But clearly, the statement “all other provisions” implies that it is subject to at least some provisions.

The NC Insurance Commissioner is given regulatory power over the contracts of the Cost Plus plans according to N.C.G.S 58-65-40, “Supervision of Commissioner of Insurance; Form of Contract with Subscribers; Schedule of Rates”. The statute states:

There are some more arguments against the Plans’ points, but it’s a little “inside baseball” for a blog post. Suffice it to say that the claim by Cost Plus plans that they have a right of reimbursement is not settled law and should always be questioned.

Like I always say, this stuff can get complicated, so why try to figure it out on your own? Let a pro handle it. Call me at 919-929-2992.

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Corona Virus and Your Court Date

As of right now, Orange and Chatham County Courts are being pretty understanding about continuing cases when defendants believe they are in danger of infecting others.

But why bother? If you have a traffic ticket, do you really want to worry with trying to get a continuance, or going to court and standing in line with 500 people? All the more reason to hire an attorney if you have a speeding ticket in Orange or Chatham County.

Give me a call. 919-929-2992. Let me deal with it.

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

(P) 919-929-2992
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