Intersection Accidents in NC Can Be Tricky

You would think that intersection accidents would give us the clearest liability argument…You had the green light, they didn’t, there ya go. But in North Carolina intersection accidents are often the worst when it comes to deciding liablity.

North Carolina has a relic of English Common Law still on the books: Contributory Negligence. What that says, in summary, is that if you’re even 1% at fault in your accident, you can’t get ANYTHING from the person who’s 99% at fault! Here’s a slightly longer summary by a really handsome dude: https://www.youtube.com/watch?v=RYUfBv5LM8U. Most other states have Comparative Negligence, so in that above fact pattern you could get 99% of your damages. That’s fair, right? But how does this come up in intersection accidents so much?

Even when you have the right of way, given you so graciously by your green light, you still have a duty to “see before starting” as one statute puts it. You have to make sure no one’s coming into the intersection because if it turns out you just blithely carried on just because you had the green light with no worries about anything, you might be that 1% at fault and then your case is sunk.

The best way to combat this is to be really careful. Even when you have a green light, make sure no one is coming from the other directions. The other way to combat this is to be very careful when giving a statement about how your accident occurs. Remember that adjusters are trained to ask you questions in a way that solicit answers that may be unfavorable to your case. Be careful!

If you’re in an intersection accident, call an attorney. Call me. 919-929-2992.

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Traffic Tickets and Reasonable Expectations

Traffic Attorney

So you got a traffic ticket in North Carolina and you’re hoping it’s just gonna go away. Not so fast, my friend!

I know, I know, the reason you’re hiring an attorney is because you want your ticket to not hurt so bad. THAT’S a reasonable expectation, depending on the ticket of course. In most circumstances, having an attorney that’s familiar with the policies of that particular jurisdiction will help you get an outcome that won’t be quite as bad as it might have been if you represented yourself. If the ticket is low enough, you might even reasonably hope to get out of it with no insurance points, which is ideal.

But if you have a ticket that’s really fast – like 20+ over the limit – then you’ll be doing yourself a favor if you go ahead and adjust your expectations now. If you have one of these situations, you’re in what I call Damage Control mode. By that I mean my main goal is to save your driver license and anything we get on top of that is gravy. When you’re charged with 16+ over the limit and doing more than 55, pleading guilty to that ticket can revoke your license in NC, so this has to be our first reasonable goal – to save your license. Hoping for anything above that is simply imprudent.

Don’t get me wrong; if you hire me for a ticket like that, I’ll do my best to minimize all of the consequences for you. It’s just best if you understand that the main thing I’ll try to do is save your license. Minimizing your insurance points will in some ways go hand in hand with that, but that’s a secondary concern compared to you potentially losing your license.

People think tickets aren’t that big of a deal, and sometimes they aren’t, but sometimes they can be a HUGE deal. So get some good advice before you formulate an idea as to what to expect. Call me at 919-929-2992.

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Paying Off Your NC Traffic Ticket?

Traffic Attorney

Very rarely do I tell a potential client that it’s OK to just pay off a traffic ticket they’ve received in North Carolina. But sometimes it happens, so I thought I’d remind my lovely audience about when that might be OK.

If you get JUST a seat belt ticket (NO OTHER CHARGES – JUST THE SEAT BELT!) then you might as well pay that off. This is not a moving violation and won’t increase your insurance rates. In most counties that I serve, even an attorney won’t be able to get the case dismissed. Moreover, the cost of the ticket will probably be less than hiring an attorney, who might not be able to help you in the first place. So take that into account.

If you are charged with speeding 10 mph over the limit (NO MORE!) AND you DO NOT have any other convictions of moving violations within 3 years of this one, then you can pay off that ticket. You won’t get insurance points (these exist, but are waived under a NC law) so your rates won’t increase. BUT, if you get convicted of a moving violation within three years of paying that one off, then you will not only get the points from the subsequent ticket, you’ll “awaken” the points from the previous one! That’s a gamble, and it might not be a good one, depending on how you drive. Normally, especially in the counties I serve, hiring an attorney is probably worth the cost given the likelihood of the reduction s/he can obtain for you. But that’s a judgment call.

That’s it. Those are probably the only times I’d say paying off a ticket makes some sense. But as always, I think it makes sense to talk with a lawyer about your particular situation before you take any action. Call me at 919-929-2992.

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2 Injury Claims Can Equal 0 Injury Claims

It might seem unlikely, but this is an all-too-common occurrence: Person is involved in an auto accident, only to be involved in another auto accident within a few months of the first. How will this work out?

Depending on your situation, I might be pretty bad. The problem with two cases is they can, arguably, fatally damage your causation argument as to your injuries. The liability carrier for the first accident might say, “Maybe you were hurt in this accident, but anything after the second is on them.” While the liability carrier for the second accident might say, “You were already hurt before the second accident so we don’t think this one hurt you at all.” The problem is juries might believe both of those arguments, leaving you with less of a recovery than you might actually deserve.

How you move forward is greatly impacted by your perception of your injuries from each impact, but also by other factors such as the opinions of your healthcare providers, the length of time between accidents, the severity of the impacts, and your diagnoses, of course. There are a lot of moving parts, which means a lot can go wrong.

Sadly, there’s no way to fix this sort of situation. It can only be managed, and that is based very much on the facts of your scenario coupled with a deep understanding of how claims are evaluated. If you find yourself in the midst of an auto accident injury claim, heaven forbid two at a time, please do yourself a favor and call an attorney. Call me at 919-929-2992.

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ERISA Health Plans and NC Injury Claims

North Carolina is an anti-subrogation state, meaning that in general health insurance plans CANNOT ask you to pay them back when you get reimbursed for healthcare that they paid for in relation to an injury claim. So most of the time you don’t have to pay back ole BCBS NC after you settle your auto accident. That’s a good thing and is how it should be, I think. There are, however, exceptions to this rule.

The State Health Plan and Medicaid have this right. Why they do is for another post.

Cost Plus Health Plans claim that they do, but the law isn’t actually clear on that. Once again, that’s for another post.

Where this crops up most frequently for clients that don’t have the State Health Plan or Medicaid is in the context of ERISA self-funded plans. These are plans that are sponsored by large employers with big workforces. They are set up under Federal law that supersedes our State law and allows them to recoup costs in these third party claims situations. These plans are “self-funded” which generally means that the premiums paid in by the employees are the source of the payouts. Essentially, all of you are agreeing to create a big health savings account that all of you have equal access to, which is rationale behind allowing it to claw back payouts when you get paid back for something it paid for.

IF your plan has this right, it’s not the end of your claim. It’s just a thing we have to manage. You don’t want to ignore this potential right because they can take away benefits and/or might pursue you in court for the payback, so don’t play around.

How do you know if you have such a plan? The smart thing is to call your health plan with all of your information handy and ask them if your particular plan has a “right of reimbursement for third party claims” or “subrogation in third party claims.” If they do, have them get you to the right people to set that claim up and give that information to your attorney. They’re in the game now and you want to make sure they’re covered.

Until we have a single payer plan in this country (like every other developed country in the world) you don’t want to jeopardize your health coverage, so make sure you’re compliant with their rules. As always, when in doubt, talk to a lawyer. Talk to me. 919-929-2992.

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Orange Co. NC Speeding Ticket?

Traffic Attorney

Back in the pre-Covid days, you probably didn’t relish the thought of going to court. Now, it seems like an absolutely bat$#!^ crazy idea to pile into an enclosed space with 200 strangers. All the more reason to hire an attorney if you get a speeding ticket, right?

Call me at 919-929-2992 and I can help you with your Orange County NC speeding ticket, more than likely. If I can’t help, I’ll be totally up front about it. Call for a free consultation and don’t got getting that ‘rona smeared all over ya in court.

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Burden of Proof & Doctor’s Opinions

Some folks are suffering from the misconception that after you’ve had an auto accident then you just shove your medical bills and records received after the accident to the insurance company and, voila, money gushes forth.

Would that it were so.

It is VITAL to remember that as a plaintiff, you have the burden of proof. That means that you have to prove (in practice more like demonstrate to the carrier that you can prove) that your damages were proximately caused by the negligence of the defendant. JUST because you can show damages that were sustained after the accident does NOT mean that the defendant is on the hook for that. This is the principle of post hoc ergo propter hoc or “it happened after so it happened because of.” This principle is NOT accepted as proof of medical causation in NC courts.

Our burden of proof as plaintiff is the preponderance of the evidence. In the medical causation context, the language we’re looking for is “more likely than not.” That means what your licensed and qualified health care provider must say for you to prevail is that their opinion is that it is more likely than not that the accident you were in caused the condition you’ve complained of. That sounds like a lot, but it’s really not. The health care provider simply needs to believe that the most likely cause of the condition is the accident. “Most likely” can be reduced to the percentage 50.1%. That’s NOT “beyond a shadow of a doubt,” and it sure as hell ain’t 100% certainty.

Sadly, while it’s a fairly simple burden to explain, and an even simpler opinion to form, health care providers are often very hesitant to provide such an opinion. Don’t get me wrong, some docs will jump right up to help you if you have a request like this. But that is often the exception, not the rule. For whatever reason, a lot of obstacles present themselves when this sort of opinion is sought out. Sometimes it’s an outrageous fee from the provider. Sometimes merely asking the question gets the doc to change their mind from what they’ve written in the notes. This last one is perhaps a result of a doctor simply hoping to avoid being called to court, the theory being that if they give a negative opinion they won’t be called as a witness, regardless of what their previous/actual opinion was.

The system is a mess, I know. None of it is as easy as it could be or should be. All the more reason you should seek the help of an attorney if you’re injured in an accident. Call me at 919-929-2992.

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My Trust Account and Your Money

Assuming everything goes the way we want, at the end of your injury case you should have some money coming to you. But where does that many come from, where does it go, and who’s responsible for what?

First, in most injury claims, the money you get either by settlement or court award is paid out by an insurance carrier. Generally, it’s paid in a check, payable to BOTH you as the victim and me as your attorney. This two party check MUST, by law, then go into your attorney’s Trust Account.

As an attorney, I’m required to put any client funds I receive into a separate special account called my Trust Account. Lawyer Trust Accounts are HIGHLY regulated and monitored and we’re required to keep strict records about what goes in and what goes out. While these requirements are somewhat onerous for attorneys, they are designed to give clients peace of mind that their money is safe in our hands. For the most part, these rules and regulations work; most attorneys are very reliable about keeping a strict accounting of client funds and making sure they go where they’re supposed to. I know I am!

As stated, since the check has my name on it (and for other reasons explained below) I will place your settlement funds in my Trust Account. I have to give those funds sufficient time to clear before I disburse them. “What?!,” you exclaim. “It’s the 21st century! How can we still have to wait to see if a check is good or not!?” I hear you. That’s a valid question that’s best directed to your bank. Suffice it to say that the law requires me to hold the funds for a week minimum to make sure they clear, so I can’t play games with that timeframe. You should note that I have, on at least three occasions, had insurance companies bounce checks on me, so this waiting period is for everyone’s benefit.

Now we know where the funds come from, where they take a brief vacation at and why. So let’s figure out where they go…

Generally, on an injury claim my fee comes out of those funds. It’s normally 1/3 of the total amount, but that can vary under some special circumstances. After my fee, we sometimes have to pay certain medical expenses to health care providers. That might be voluntary – meaning you, the client, asked me to pay that bill – or it might be mandatory – meaning that there’s a law telling me I HAVE to pay a certain bill. You’ll know that before it happens, so don’t stress too much about those details for right now. On rare occasions we might have to repay my office for money it advanced on your case, but that’s not always the case. Finally, after all of that, the remainder (normally the vast bulk) of the funds goes to you.

All of this will be documented in a ledger that will show you what went in, what went out, when, and to whom. We’re required to keep those ledgers for all funds that come into and go out of the Trust Account so you should always get a copy of that document when you have funds coming through my practice.

I hope that helps to clarify the mystery of settlement funds and Trust Accounts. As always, call me (or your own attorney) for questions. 919-929-2992.

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Property Damage Matters

We all have different standards as to how our vehicles appear. Some of us get our cars detailed every week, while some haven’t seen a sponge in their entire tenure with their current owner. Whatever. That’s all fine.

But after an auto accident, getting your property damage addressed is really important for your bodily injury claim. Why is that? So glad you asked!

The insurance companies really don’t like giving away money, so they come up with all kinds of semi-plausible nonsense to give themselves an “out” on paying the injury claim. One of those is the old “we don’t think you could have been hurt in this accident given the property damage” BS.

Under this little example of non-science, the theory is that, in their infinite wisdom, the pencil-pusher looking at your case has decided that there wasn’t sufficient damage done to your car to make them believe this accident hurt you. Obviously, that’s bull$#!^. But the problem with people – people that might be on your jury – is that they’ll believe bull$#!^ when they want to. Just look at Trump voters for proof.

Now, when this really hurts is when you happen to be one of those folks that’s not really worried about your bumper being dented and so maybe you don’t get it fixed. That makes it look like a) the car wasn’t damaged badly enough to warrant repairs and/or b) maybe it wasn’t even damaged in this accident anyway! Either way, this helps to support the insurance company’s nonsensical theory of non-liability.

The moral of the story is that if you’re in an auto accident and are pursuing an injury claim, get your property damage addressed. Get the car fixed, even if it’s a hassle, because it can come back to bite you later if you don’t.

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When do you report an injury at work?

In general, I would recommend always reporting a work-related injury immediately. But there are consequences to reporting as well as not reporting, so let’s talk about those so you are making an informed decision.

Under NC Workers’ Compensation Law, you are technically supposed to report an on the job injury in writing to your employer within 30 days of the incident giving rise to the injury. The best way to do that is to file a Form 18. That form gives you instructions on how to do that, but the main thing is you’re also simultaneously reporting it to the NC Industrial Commission, the quasi-judicial body that oversees the administration of Worker’s Comp claims in NC. This is the safest way to put everyone on notice that you might have a Worker’s Comp claim.

“Might have?” you say. “But I was hurt on the job! Doesn’t that mean I DEFINITELY have a worker’s comp claim?” No, my friend, I’m afraid it doesn’t. Under NC Law, you have to have suffered “an injury by accident, arising out of AND sustained in the course of your employment with the employer.” That’s a lot of little words that have very big and precise definitions, but for purposes of this article, just understand that simply having a workplace injury DOES NOT guarantee you coverage under Worker’s Comp. But reporting your injury immediately at least keeps you from running afoul of that 30 day deadline, so if you even think you have one, it’s probably a good idea to report it.

But we live in the real world, right? Sadly, some employers are less understanding than others and a report of a workplace injury is a 1 way ticket to the unemployment office. Firing you for reporting an injury is probably a violation of the NC Retaliatory Discrimination Act, but that’s another legal battle for you, and as the administration leaving the White House as of yesterday has shown us, simply breaking laws doesn’t mean that the bad guys will suffer any penalties; someone has to go after them, and even then it’s not always successful.

For me, whether or not to report an injury on the job is a case by case sort of scenario wherein you must consider all of the facts? Generally speaking, I’d say the less significant the injury, the less your likely need for Worker’s Comp benefits, so the less urgent it would be for your to report it. Conversely, the more significant the injury, the more urgent the need for reporting. Also, consider your access to medical care v. the likelihood your boss will fire you v. your ability to walk away from this job. If you can get adequate care for your injury without Worker’s Comp benefits and you’re more worried about losing your job than you are about getting Comp benefits, then you make the decision that’s right for you.

I think different attorneys might handle this question in slightly different ways. I tend to err on the side of giving as much information as I can and then letting the potential client decide what to do. I know about the law, but they know about their life way better than I ever will, so ultimately they’re in a better position to make that call. But this is all the more reason that you should talk to someone that can inform you as to your rights. So if you’re hurt on the job, call a lawyer and get some help in figuring out what you should do. 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

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