DWI injury claims have a higher than average settlement/verdict value in North Carolina because of one thing: Punitive damages.

When someone injures you and you seek to recover from them, you are looking for, generally, “compensatory” damages.  Those are damages which essentially are to reimburse you 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.

In North Carolina you can, under very limited circumstances, ask a court to award you not only compensatory damages (paying for your losses) but also punitive damages, or an award to the plaintiff that that is merely meant as a deterrent to the sort of behavior that led to the action.  Punitive damages are limited in North Carolina except in once instance: DWI injury claims.

Mind you, you may not even ask for punitive damages in the absence of wanton and reckless conduct.  So in your normal motor vehicle accident case, which would involve just plain old negligence, you may not seek punitive damages.  However, North Carolina law allows for you to seek punitive damages in DWI injury claims because of the wanton and reckless nature of driving while impaired.  These damages – unlike in every other punitive damages situation in NC – are unlimited, meaning that the jury can award the plaintiff however much money they feel would be a suitable punishment to the defendant for their behavior.  And this would be in addition to whatever compensatory damages you were awarded as a plaintiff.

That’s a big deal.

However, there’s a rub, as always.  How are you going to recover those punitive damages? Most people don’t have thousands of dollars to take, so what do you do?

Automobile liability policies are on the hook for punitive damages, so if you can get them, the defendant’s liability insurance carrier will have to pay them.  However, most people have NC minimum limit policies, which at the time of this writing are $30,000 per person.  So the total amount that any one plaintiff could recover from that kind of policy, whether it’s compensatory or compensatory AND punitive damages, would be $30,000.

Is there a way to get more?  Well, maybe…

If you have Underinsured motorist coverage and you exceed the policy limits of the defendant, you might be able to recover against that policy.  But UIM policies are not responsible for punitive damage verdicts, so they are not on the hook for that.  They are, on the hook for compensatory damages, so if you have high compensatory damages, there is hope for a potentially reasonable recovery, depending on the circumstances.

This stuff is straight wacky, right?

“How do I pay my medical bills after an auto accident?”

This is probably the #1 concern of my clients.  And it’s a terribly valid and immediate one.  So what’s the answer?

http://www.nj.com/middlesex/index.ssf/2015/09/woman_settles_lawsuit_against_dunkin_donut_for_522.html

It all makes sense when you read the article…

A woman got coffee at a Dunkin Donuts and while in the parking lot stepped on an exposed spike (I’m guessing rebar, but not altogether sure) which then caused her to fall and spill her coffee on herself, resulting in horrific burns.

Everyone thinks they know about the infamous McDonald’s hot coffee case (most don’t know the facts really at all) and relying on their misinformation think that all coffee cases are “frivolous.”  This is a great example of one that isn’t.

All property owners have a duty to keep their premises safe.  They shouldn’t create dangerous conditions, and when they are aware of dangerous conditions, they have a duty to warn people of them.

In this situation Dunkin Donuts’ failure to discover and notify their customer of a dangerous condition was a proximate cause of her injury, so they should be held liable.  It’s a solid theory.  This case isn’t about a beverage being subjectively “too hot” or someone going after a pot of gold over no real injury; this case is about long-standing premises liability theory and significant personal injury.

So before you judge a case, or even worse the person making the case, know the facts.  And if you’re injured, call an attorney.  Maybe this guy. 919-929-2992

I handle these.

Depending on several factors, mostly on your driving record and the charge against you, I have a chance of getting a reduction to reduce, and sometimes eliminate, insurance points. Insurance points raise your insurance rates for THREE YEARS!

You don’t want to give more money to insurance companies. Insurance companies are @$$#()!3$.

Let me help you.  Call 919-929-2992.

Last year there was a Super Bowl ad for a personal injury attorney.  It was done in a movie trailer format and with a Hollywood budget.  If you missed it, here it is:

It bears no resemblance to the practice of law, and the story doesn’t even really make sense.  How do you avenge the murder of your brother by getting into personal injury law? Did State Farm off him? I suppose I wouldn’t put it past them, but it’s not like we’re in the vigilante business, exactly.

And here’s a now infamous one:

This one is patently absurd, and if I had a DWI, the last thing I’d personally want would be to have an attorney that crashes into cars and screams a lot.  But the thing is, we’re talking about these ads, which means they are getting attention and therefore working for the people doing them.

Is that wrong?  I wouldn’t say so.  There are some old school attorneys (and regular folks) who might say that this sort of hucksterism is in some way demeaning to the once-proud profession of law.  And maybe they’re right.  But I think it might also be argued that it is now in the nature of our country’s social conscience to take everything and everyone less seriously.  Doctors are not viewed with the respect they once were, and lawyers are more reviled than anything else.  If anything, I would imagine that the attorneys who get in on the self-deprecation, the tongue-in-cheek parody, and/or the over-the-top showmanship are the ones that are going to prosper as business people as this era continues.

And I think that’s the point.  When you consider the practice of the law (or any of the traditional white-collar sort of vocations) as a profession, then that implies a certain stodgy traditionalism that doesn’t jive with today’s media norms.  But when you consider the practice as a business, then that’s when you turn the corner.  I think that the practices that are on the cutting edge of advertising are the ones that are getting more business.  The question remains, and will only be answered by Darwinian business processes, what does the consumer prefer – a grandfatherly Atticus Finch, or a screaming Adam Reposa?  If I know America, I think we’re leaning more toward the Reposas of the world every day.

I would love to hear your thoughts.  Let me know what you think about attorney advertising in this day and age by commenting on Twitter (@jahatty) or Facebook (link below):

https://www.facebook.com/pages/Jeffrey-Allen-Howard-Attorney-at-Law-PLLC/151562138211185?ref=br_rs&pnref=lhc

Thanks!

http://www.burlingtonfreepress.com/story/news/local/2015/08/29/civil-lawsuit-battle-flares-bike-car-crash/71397258/

Today’s blog post is about the general perception that injury claims are frivolous, particularly in light of the facts of the claim referenced above.

We hear a lot of noise about lawsuits being frivolous and personal injury lawyers making everyone’s lives more expensive by bringing silly claims for people who really aren’t hurt.

Well, if you read the article above, you’ll see that Dr. Kenneth Najarian of Charlotte really was hurt by a driver in Vermont.  In fact, he died.  Is that enough injury to bring a claim?  I would imagine it’s plenty of injury for his family.

Dr. Najarian’s widow has filed suit against the driver, who was, it just so happens, charged with driving while impaired after she ran over Dr. Najarian.

Do you think this claim is frivolous?

What I find particularly compelling about this case is that the defense has fought over the plaintiff’s right to inspect the vehicle before repairs were made.  Invaluable evidence to help resolve a disputed claim is clearly available only if the car is examined prior to repairs?  Who would fight that?  Who would be arguing about the right to inspect a vehicle when someone has lost their life for no good reason!?!

How come we don’t hear anything about frivolous defenses to lawsuits?

Insurance company money.  There’s your answer.  So think about that the next time you hear about how injury attorneys are messing up the world.

You don’t.

Sadly, there really isn’t any “getting out of” tickets anymore.  There are two drivers in this situation:  First, control of driver speeds helps to curb accidents, and more importantly injuries. While I stand to profit from injury claims on the roads, it’s not that I want them to happen, so it’s a good thing to have speed limits that are enforced.  Second, traffic tickets bring in a huge amount of revenue for the court and for local schools, so the DA has a lot of incentive to keep these going.  As a result, they are not likely to just go away like you would like.

No, the ADAs don’t care if you had to pee really, really badly.  They don’t care if you were late to nursery pick-up and are dinged $15/minute for being late.  They don’t care that you were just “going with the flow of traffic.”  They don’t care if you didn’t see the sign, or if the sign just changed a few feet away.

Everyone has a reason, I know.  I’ve gotten tickets before for similar reasons just like you have.  Everyone thinks that their excuse is legitimate but other people’s excuses are just excuses.  That’s not the case.  Once you get a ticket, the question shouldn’t be, “How do I get out of this ticket?”  The question should be, “How do I control the damage from this situation?”

From a legal standpoint, speeding is strict liability, meaning if you’re doing it, you’re breaking the law.  They don’t have to prove you intended to break the law.  They just have to prove you were speeding.

How do they do that?  They have the cop testify.  You can get up on the stand and say, “Nu-uh!” but that may not fly.  Don’t get me wrong, you can have a trial on a ticket that will result in a not guilty, but these are by far the very tiny exception to the vast rule, and it is not something I would generally advise.

Your concern should be damage control.  How can you get through this situation with the least amount of damage?  Hiring an attorney (like me!) makes a lot of sense.  Sure, you pay a fee, but what do you get? This is what you get:

1) Someone goes to court for you and you don’t miss work;

2) The person going to court for you has knowledge that you probably don’t have, specifically what the financial results of different plea options might be based on your record so they know the best option for you!

3) The person going to court for you will have some familiarity with the ADAs and the negotiating parameters, so you’ll get a good idea as to what to expect and what the best outcome might be.

4) Your outcome should in most cases be the best plea deal available under the particular circumstances, and it should reduce or maybe even eliminate the increase of your insurance premiums for THREE YEARS!  

If you don’t think all that’s worth the attorney’s fee, you probably didn’t do very well in math class.

Tickets = bad.  Attorneys = good!  Call me. 919-929-2992

I will admit that one of the reasons I handle traffic tickets is because, relatively speaking, they are simple to resolve.  Once you know the various laws regarding moving violations, insurance points, etc., learn how to read a driving record, and gain familiarity with each judicial district’s policies, you can get some reasonable outcomes for your clients.

But, my goodness, are there some really, really weird contradictions and strange inconsistencies in this sort of law.  Here are some for your befuddlement:

In Wake County, if you run a stop sign and crash into someone, you can probably get your ticket dismissed.  However, if you run a stop sign, even if it’s just a California stop, and do not cause an accident, you cannot get that ticket dismissed and at best will have to burn a PJC.

Let’s keep picking on Wake County…for years the DA there, Colin Willoughby, refused to offer reductions of speeding tickets to the very helpful non-moving violation of improper equipment, even though most other DAs in the state allow this.  As a result, the elected judges kept traffic ticket fines exceptionally low ($0 or $10 when in other counties the same ticket would get $25, $50, or more).  Remember, fines go to the school district! Colin’s “tough on tickets” approach may have looked good in the papers, but it cost the Wake Co. Public School System millions of dollars over time because of the lower fines.  Moreover, not only did the school system not get this money, but insurance companies got to profit because of the points the drivers were given.  Way to stick it to your voters, homey.

Now that Colin is gone, Wake County does allow reductions to improper equipment, but there are a ton of hurdles.  This is not unusual, as most counties have requirements to qualify for that sort of reduction.  But in Wake, it’s somewhat absurd.  The most absurd requirement is the “certification” of a driving record.  When I pull records, I get them from the local police station, and in the report it reads “certified copy.”  This is not, however, good enough for the Wake ADAs.  The balm we have used to cure this is the records custodian at the local police station had a stamp made that says “certified” and that passes muster.  So, if the DMV prints it and it says it’s certified, that’s not kosher; but if any yahoo goes and gets a stamp made at Staples to say it’s certified, then that is OK. Yikes.

Most people don’t know this, but there are two separate points systems in the traffic ticket world. There are DMV points and there are Insurance points.  To make it extra exciting, offenses give you different points.  For example, a 70 in a 55 conviction gives you 3 DMV points and 4 insurance points.   DMV points do nothing, except when you accumulate 12 of them, you lose your license.  But if you have 11 you’re OK.  Insurance points, on the other hand, are cumulative, so every one you get hurts you more.  See this link for more info on that.  There isn’t exactly any absurdity here, only unnecessary complication and confusion. Why can’t they give the same number of points for each offense?  And many insurance companies don’t get NC’s system, so they might try to jack your rates when they shouldn’t.  Do we think this is confusing on purpose?  Maybe.

I could probably come up with more, but this is a blog post, not a book.  Let me know if you need me, kids.

http://www.reuters.com/article/2015/08/10/nascar-stewart-lawsuit-idUSL1N10I2KL20150810

You’ve undoubtedly heard about this.  Last year, at a lower-level, non-NASCAR event, NASCAR driver Tony Stewart ran into a fellow driver who was out of his car at the time, killing him.

The family of the deceased 20 year old driver have filed a wrongful death claim against Tony Stewart in New York.

Of course, jurisdictions differ, so I can’t really give you any insight as to how this case will go up there.  But I can tell you that in North Carolina, I don’t see how this one survives.

This is a blog post, by the way, not a Law Review article or anything fancy, so I’m just hitting up some random points about this case, were if filed in North Carolina, that I find interesting, and you might, too.  Enjoy:

• It is noted in the article that there is an allegation that Stewart acted with, “wanton, reckless and malicious intent and negligence.” There are three separate allegations there:  He was acting negligently, he was acting with intent to kill him, or he was acting recklessly, or in our parlance, “grossly negligent.” But which one was it?  Good luck proving intent.  Short of Stewart admitting he swerved to hit him, I don’t see how you do that.  As for negligence and gross negligence, he’s driving a race car on a race track in a race.  How is he supposed to anticipate another driver walking on the track?
• North Carolina is a contributory negligence state, so if the plaintiff is found to be even 1% at fault in causing his injuries, he gets 0.  If they are alleging negligence, then contrib is a defense.  The fact that the decedent appeared to walk towards and point at Stewart shows that he wasn’t really acting reasonably to preserve his own safety; the fact that he tested positive for marijuana in an amount signficant “enough to impair judgment” makes it even less of a good look for the decedent.
• North Carolina typically doesn’t allow Assumption of the Risk as a defense.  However, it can be allowed in the course of “inherently dangerous activities.”  I’m gonna go out on a limb and say that racing cars fits that description.
• Stewart is the only defendant named.  In every description I’ve heard of this event they’ve described the track as “dark” or “poorly lit.”  Why not name the track?  Couldn’t they be at least partially to blame?

These are just a few thoughts about why I think this case wouldn’t fly in NC.  That doesn’t mean it won’t fly in NY. Who knows?  In the end, I would imagine that they will reach some sort of settlement given how much Tony Stewart is worth; he may not want to risk some sort of “punish the millionaire” type of verdict.

Would I have taken this case?  That’s a hard question to answer.  But if you have one like it, you should definitely call me.