LIGHTNING STRIKES TWICE

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1 LIGHTNING STRIKES TWICE HOW TO AVOID BECOMING A VICTIM OF PERSONAL INJURY INSURANCE COMPANIES Eric A. Richardson, Esquire Oxner Thomas + Permar, pllc Greensboro Winston-Salem Asheboro Burlington Raleigh Charlotte Fayetteville Hickory Wilmington OTP-Law1 ( )

2 2010 Oxner Thomas + Permar, pllc and Eric A. Richardson All rights reserved including the right of reproduction in whole or in part in any form. No part of this book may be reproduced in any form without permission in writing from the authors, except in the case of brief quotations embodied in critical articles or reviews. ISBN Printed in the United States of America

3 The Personal Injury Team at Oxner, Thomas + Permar The Personal Injury Team is made up of attorneys and legal assistants dedicated to efficient and effective representation of people with serious personal injury claims. We are committed to using technology, education and our desire for justice in achieving successful results for our clients. Along with every member of the law firm, we take every claim seriously, and never accept representation in more cases than we can handle. Please see our website at for more materials and information about the personal injury team. iii

4 TABLE OF CONTENTS 1 Ch. 1: Why You Should Read This Book 5 Ch. 2: The Injury Case 11 Ch. 3: Representation 15 Ch. 4: How We Handle a Personal Injury Case? 21 Ch. 5: Seven Deadly Sins That Can Wreck Your Case 25 Epilogue A1 A2 B1 C1 N.C. Gen. Stat (g). Coordination of benefits Liability of third person; right of subrogation; right of first recovery Rights under Article not affected by liability of third party; rights and remedies against third parties Lien created; applicable to persons non sui juris. D1 E1 F1 G1 H "Motor vehicle liability policy" defined. Release 28A-18-2 Death by wrongful act of another; recovery not assets. Form MCIC-T-1 N.C. Crash Report Form DMV-349 iv

5 Chapter 1 WHY YOU SHOULD READ THIS BOOK 1. DON T LET LIGHTNING STRIKE TWICE The doorbell rings. It s one day after you were injured in a serious car wreck. Your back is aching, head ringing and maybe you have a broken bone or two. You open the door and are greeted by a representative from the insurance company for the driver that caused your injuries. What a relief. You think to yourself, someone is here to help me. After a few minutes of conversation, you learn that your friendly neighborhood insurance adjuster wants to take a statement from you. You discuss the case, and soon the adjuster is offering you a small sum of money to settle your case. The adjuster may even tell you that if you don t settle now, the same offer may not be available later. You ve already been the victim of someone else s negligence. Be aware. Lightning is about to strike twice. It is no secret that insurance companies take advantage of their superior knowledge about the claims process. As a part of their usual business practices, insurance claims adjusters approach accident victims and their families immediately following an accident. This occurs often before the victims have a chance to talk to an attorney. You may not need an attorney to represent you in your case but at this stage of the claim, you are at a disadvantage. That s right, I said you may not need an attorney. What you need is information. Accurate, reliable and trustworthy information will assist you in making decisions about your case. That is why I want you to read this book before you make your next move. Just like the insurance adjuster who is well-trained, you 1

6 should be armed with this important information, right from the beginning of your claim. I wrote this book so that you can be informed, today. I also wrote this book for another reason. I am troubled by lawyers who make promises that they cannot keep simply because they have too many cases, or they see your injury as just another way to make money. Let me ask you a question. Would you hire a lawyer without meeting him or her? Of course not. If you re reading this, and you are pursuing a case but have never met your lawyer, then this book is probably not for you. If you don t think that you can pick up the telephone and actually speak to your lawyer, then you may not understand what I am talking about because you don t have an expectation that you should be involved in your case. It is true that I cannot take every call, and when I cannot, I have very talented employees to assist you until I can address your concerns. But if I ever get too busy to speak with my clients, then I no longer deserve their trust. And here we hit the core of the attorney client relationship: Trust. If you don t know your attorney, how can you trust him or her? If the last time you heard from your attorney was when you signed his or her fee agreement, do you really have a relationship? For example, most attorneys require you to make an appointment so that they can discuss your case with you. I believe that you should be able to have this information, right now, and without any pressure. The hiring of an attorney to represent you is a very important step that should not be taken lightly. The purpose of this book is to share a great deal of information with you about injury claims. This method of sharing information saves both of us time. There is a lot of information in this book, and it saves me the hours of time that it would take each day just to talk to all of the new potential clients who call. I cannot and will not accept every case, and frankly, each year we turn down good cases that simply do not meet our case selection criteria. So, rather than rush you through a phone conversation, writing this book gives you a chance to get valuable information without any pressure from a lawyer. That may help you make decisions about what steps to take with your case. Even if I do not accept your case, I would like you to be educated about the process so that you don t fall victim to insurance companies. 2

7 2. LET S SET THE STAGE When you were injured, you were thrust into a conflict situation. You did not choose to be there, and there is a good chance that you encountered events similar to those I described earlier. The insurance company of the person who hurt you assigns an adjuster who is trained in ways to limit the amount you are paid for your injuries. That is their job. It s plain and simple because if they pay less in claims, their company makes more money. But before you were hurt, the insurance adjuster began planning to limit your recovery. The insurance industry spends hundreds of millions of dollars to inflame the public against you and me. Their goal is to convince the public, who could be members of your jury, that people involved in personal injury lawsuits are greedy, good-fornothings looking for a free ride on a frivolous claim. Frivolous lawsuits should be dealt with swiftly, and I don t represent people with such claims, nor do any reputable attorneys. But you wouldn t know that from reading the newspaper or watching the television. What the insurance company is doing is starting with the end in mind. They understand that their ability to limit reasonable settlement offers is based, in large part, on their ability to limit reasonable jury verdicts. They understand that if they can reduce jury verdicts, then they can limit the settlement offers made before trial. So what can we do? We do the same thing. We start every case preparing for the day that we will present it to a jury. When I take a case, I expect that I will go to trial if I cannot receive a settlement that is fair and reasonable to my client. I do not abandon my client when the insurance company is unreasonable I expect them to be unreasonable. I m not surprised when they offer a fraction of the value of the case. Nor do I get mad or irritated. I simply continue my trial preparations. Does that mean that I take every case to trial? No. Many cases do resolve prior to trial for good reasons. And I firmly believe that it s this approach preparing to take every case to trial that actually brings about better settlement options for my clients. Every case has its own circumstances. There is no hard and fast rule 3

8 that applies to each and every one. Once you understand this fact and you are educated about your case, you have every right to accept a fair and reasonable settlement offer before trial. As a matter of fact, taking a reasonable offer can be the wisest course of action because there is no certainty in a jury trial. As an attorney, I work with my clients to make sure that they know what is reasonable and what is ridiculous so that they can make a good decision. My goal is to make sure that you do not become victimized by the insurance company as well as the insured. 3. THIS BOOK IS NOT LEGAL ADVICE I want to see you succeed. You get to define success in your case. However, at this point, I am not your attorney so I cannot advise you. Because your case is complicated and has many components that make it different from other cases, this book is not intended as legal advice about your case. I cannot give legal advice in this book. I can offer suggestions and identify traps, but please do not construe anything in this book to be legal advice until you have agreed to hire me AND I have agreed, in writing, to accept your case. 4

9 Chapter 2 THE INJURY CASE It s important before we go any further that you understand the ins and outs of an injury case. Although you might think that you have a personal injury case, it s possible that you have a workers compensation claim or a medical malpractice claim or no claim at all! The following points will give you a good understanding of what is involved in an injury case and what to look for as you begin to think about what to do next. 1. DO YOU HAVE AN INJURY CASE? When you hear personal injury case or wrongful death case you probably have certain preconceived notions about the meaning of those phrases. I will not assume you know what I am talking about. Instead, I will tell you what I do. First and foremost, I represent people. All injury cases are primarily about one thing people. They involve suffering, life changes, fear, anxiety, pain all things that affect people. But because of the complicated legal process, getting relief for people is not easy. Injury cases, by and large, fall under the category of negligence law. A personal injury, automobile accident or wrongful death case is any type of claim where a person has been injured or killed due to someone else s carelessness. If the only damage in your case is that your car got banged up, 5

10 then you don t have a personal injury case, but you may have a property damage case. We do not normally handle property damage cases. If both you and your car have suffered an injury, then you have both a personal injury and a property damage claim. We represent people in the personal injury parts of those cases. If someone s negligence causes the death of another, then this is called a wrongful death claim. The law of each state or jurisdiction differs significantly regarding what can be recovered in a wrongful death case (see F1). You need an attorney who understands the specialized wrongful death laws. In North Carolina there are even different time periods, called statutes of limitations, for initiating wrongful death cases versus personal injury cases. 2. WHAT ABOUT OTHER TYPES OF INJURY CASES? Whenever you are hurt by another s negligence, including that of a professional or a builder or manufacturer or a store merchant, you have a personal injury claim. Products liability (injury by harmful product), medical malpractice (injury by a doctor, hospital or other healthcare provider), slip-and-fall (injury because someone did not take care of a walkway) are all subtypes of personal injury cases. I do not try to handle all of these types of cases. For example, I do not handle products liability cases and rarely do I represent people injured by a doctor s negligence. However, there are plenty of lawyers who handle these cases, and if we don t handle your type of injury case, we will be happy to help you find a lawyer at no cost to you. 3. WHAT MUST BE PROVEN TO WIN A CASE? The law does not demand compensation for every injury. You must prove that someone else was negligent or careless and that it was their negligence or carelessness which caused your injury. If you have suffered an unfortunate accident that is no one else s fault, or if you do not sue the right person, then the law says that you will not recover any money. And this is a critical part of personal injury practice because what most people do not realize is that in every case, you will 6

11 have an opponent trying to prove you wrong. Very talented attorneys and experts will be fighting to keep you from receiving fair compensation for your injury. In North Carolina, there is one additional factor that we must overcome: You cannot have been at fault in any way for your injury. This is known as the law of Contributory Negligence. This means that if the other guy was 99 percent at fault and you were 1 percent at fault, then you cannot recover anything. For example, if another driver runs a red light and hits your car, it seems obvious that it is the other driver s fault. But, in North Carolina, all drivers have to make sure that an intersection is clear before they enter it even if they have the green light! So if you did not look both ways before starting to move into the intersection on a green light, you could be found to be contributorily negligent. Using a cell phone or riding as a passenger with someone that you know is an unsafe driver are other possible examples of contributory negligence. Sound fair? Hardly! It is a harsh law, but that s the way it is in North Carolina. Your attorney needs to understand what contributory negligence means and how to defend against it. Before we accept your case, we must be confident that you were not at fault in any way for your accident. 4. BEWARE OF THE ERISA MONSTER AND LIENS ON YOUR SETTLEMENT If your medical bills for treatment of your injuries were paid by a health insurance policy, that insurance company or plan may want you to reimburse it out of your personal injury recovery. In this situation, your health insurance acts less like insurance and more like a loan. North Carolina state law prohibits subrogation (seeking to be paid back) of insurance payments. However, in many cases North Carolina state law is over-ridden by other states laws or in some instances a federal law called ERISA (The Employee Retirement Income Security Act of 1974) which nullifies the state rules and allows your health insurer to be reimbursed. When these laws create liens on your settlement, you will be required to pay them from your settlement proceeds. For example, the North Carolina General Assembly created a 7

12 lien for the payment of personal injury proceeds from employees and dependents of the North Carolina State Employees Health Plan. (See A1 & A2). Your attorney must understand the implications of ERISA and other lien laws on your case. The failure to do so could have lasting effects on you. Also, if your injury occurred while you were on the job, then you may be receiving workers compensation benefits. If you have a personal injury case and receive third-party proceeds from the same incident that entited you to receive workers compensation benefits, your employer (or the workers compenstation insurer paying benefits) has the right to be paid back out of your personal injury settlement. (See B1). Or, your medical providers can assert a lien, in some circumstances, on your recovery if your medical bills are still unpaid. (See C1). Your attorney must understand these situations and be experienced in handling liens in a manner that is to your best advantage. An experienced attorney may be able to negotiate such liens to help your recovery. 5. YOU MUST KNOW THE RIGHT PARTY TO SUE Sometimes, you may be injured by the carelessness of someone else, but that person may not be the only one that you sue. It is very important to know information about the potential defendants in a case. For example, there are laws that limit or prevent recoveries against government agencies. This situation is called governmental or sovereign immunity. In such situations, you may not be able to recover at all. Or, there may be only one specific way to obtain a recovery against the State. It is very important to know if the person who caused your injuries is a part of a state, county or local government. The North Carolina Industrial Commission (NCIC) has jurisdiction over a number of these claims. When that is the case, an entirely different process and procedure must be followed. For example, to initiate the case, you don t file a lawsuit in state court; you file an affidavit with the NCIC. (See G1). Your attorney must be experienced in state tort claims and cases involving governmental/ sovereign immunity. 8

13 6. OTHER TYPES OF INSURANCE COVERAGE In many instances, there can be multiple types of insurance coverage available to help compensate you for your recovery. For example, if you were hit by a negligent driver with little or no insurance, you may find that your injuries exceed that driver s coverage. However, you may own an insurance policy that offers uninsured or underinsured motorist coverage. This is insurance that covers you in the event that you are hit by a driver that either does not have insurance at all, or does not carry enough insurance to cover your damages. In North Carolina the law only requires $30,000 of collision coverage (see D1). In a serious collision, this minimum coverage will not go very far. Other sources of coverage include medical payments policies, excess policies, umbrella policies and other family members living in the same residence. In addition, when more than one policy is being considered, you may be able to stack these policies on top of one another to maximize your available coverage. The law in this area can be very complex and requires an attorney who is experienced in dealing with these types of cases. 7. RELEASING YOUR CLAIM As part of almost every settlement, the insurance company will require that you sign a release of their insured. Often this document is quite broad. Attached is a sample (see E1). Your attorney needs to understand the significance of such a document. Particularly in regard to cases where multiple insurance policies are available or multiple negligent parties exist, because certain releases completely terminate your case and cause you to lose the ability to seek recovery from other people or policies. You should not be signing a release if you do not understand its effect on your case. 9

14 8. THE LEGAL PROCESS IN PERSONAL INJURY CASES In North Carolina, you generally have three years from the date of your injury to file a lawsuit. If a death has occured, it s two years. However, you should avoid waiting too long to do so. Many clients desire to resolve their cases prior to filing a lawsuit. When my clients desire pre-suit settlement, we will make a good faith effort to settle their claim directly with an insurance company. However, a number of insurance companies flat-out refuse to make reasonable pre-suit settlement offers. In that case, we must file a lawsuit to get the case in front of a jury. Once the lawsuit is filed, both sides engage in the legal process called discovery. Each party is allowed to investigate what the other side is going to say at trial. The defendant will be permitted access to your medical and work history including your income records. You may have to give a deposition under oath, and you may be required to submit to a medical examination by a physician of the defendant's choosing. It may seem unfair that the insurance company and its attorney can dig into your private past. But remember, once you choose to file a lawsuit, you are putting your past medical history and work record into question, and the attorneys for the insurance company will do their job! The defendant is also subject to discovery. He will answer written and oral questions about his own background, and he will have to give sworn testimony about the incident at issue. In my opinion, the secret to obtaining fair and just compensation for your injury claim comes from hard work. There is no magic formula. My approach is to know you and the facts of your case very well while I use my experience and education in the law to work as hard as I can on your behalf. You should never settle for anything less. 10

15 Chapter 3 REPRESENTATION Now that you have a better understanding of personal injury cases, let s look at those things to remember when choosing if you need an attorney and if you do, what attorney would be right for you. 1. DO YOU NEED AN ATTORNEY TO SETTLE YOUR CASE? Coming from an attorney, this might surprise you to hear from me, but you definitely do not need an attorney for every injury case. In fact, our office does not normally accept auto collision cases where there s little or no property damage or the injuries are minor. Why not? We attempt to treat each and every case we handle with dignity and respect. This commitment requires a fair amount of time and dedication. In the small case, the attorney fee and costs for representation might leave little or nothing for you after your medical bills are paid, and we don t believe that would be fair to you. Nor do we desire to decrease our commitment to any case we accept. However, one exception to this policy is for cases where we believe we can get our attorney fee paid by the insurance company. This is rare, but some smaller cases have that option. In our experience small cases can be handled by individuals with decent success. Of course, the challenge that you run into is deciding whether your case is small or not. It s always best to discuss your case with a competent attorney before closing any of your options. 11

16 2. HOW DO I FIND A QUALIFIED PERSONAL INJURY ATTORNEY? Choosing an attorney to represent you is an important but intimidating task. The decision certainly should not be made on the basis of advertising alone. The Yellow Pages are filled with ads, and anyone can buy a slick commercial. You shouldn t even hire me until you trust that I can do a good job in your case. You should consider reputation, professionalism and the impression you get from meeting with the attorney and his or her staff. Other things to keep in mind include: A. The legal field has become so specialized that it is difficult to practice many areas of law. An attorney with a general practice often has distractions from other types of cases. Try to find an attorney whose practice is primarily made up of assisting injured people. In North Carolina, an attorney cannot say that they specialize in a particular area of law until they pass an exam. However, even if they don t take an exam, attorneys can limit their practice of law to one particular area. B. Get a referral from an attorney that you know. He or she will probably know someone who does concentrate in your area of need. C. The Yellow Pages can actually be a good source of names. However, some people do not advertise in the Yellow Pages because they get so many referrals from others by word of mouth. Additionally, large Yellow Page adds typically attract a lot of callers, so be sure that the attorney you hire is selective enough with his or her cases that your important case does not become just one more file in the pile. D. The North Carolina Bar Association has a lawyer referral service. Understand that lawyers have signed up and paid a fee to be listed in certain specialties. Their names come up on a rotating basis. This is another good source for an initial appointment, but be 12

17 sure that the attorney referred to you by the Bar Association is the best fit for you and your case. The ideas in this book should give you some good questions for your initial attorney interview. E. Interview several attorneys and ask each attorney if they have information just like this book and/or a web site so that you can find out more about qualifications, experience and their method of handling a case before you walk in the door. The more you know about an attorney the better you can trust that he or she can do a good job in getting you the results that you deserve. F. Be careful of any attorney who rushes you to sign a contingent fee agreement. You should have the opportunity to fully evaluate any fee agreement and understand it. G. Beware of any attorney who contacts you in writing just after you have had an accident for the sole purpose of soliciting your claim. If you are contacted cold, it should be to provide you free information that you can study in your own home on your own time. H. Beware of an attorney who has a list of doctors he wants to refer you to. Referrals for medical treatment should come from your personal physician. 3. WHAT SHOULD I LOOK FOR IN AN ATTORNEY? Experience Obviously, the longer an attorney has been practicing a particular area of the law, the more he or she will encounter. This doesn t mean that age equates with the best lawyers, but experience only comes with years of practice. Experience is a big factor in most cases. Respect in the legal community Does the attorney enjoy a good reputation among his or her peers? Membership in trial lawyer associations In our area, find a lawyer who is a member of the North Carolina Advocates for Justice. 13

18 This demonstrates that the attorney is committed to helping people navigate the legal process. Licensing Make sure that the attorney you select is properly licensed for the state in which you were injured. An attorney in another state cannot handle a lawsuit in North Carolina alone unless they are licensed here. Good Communication Understand how your attorney will keep you informed about the progress of the case. In my practice, we generally send a copy of every piece of correspondence and pleading in the case to the client. We also take time to explain the pace of the case and in what time frames the client can expect activity to take place. Our clients are invited to call or anytime. If I can t take your call or call you back right away, my assistants will help you set up a specific telephone conference appointment. You are also invited to make an appointment to come in at a time that is convenient to you. I think that you should be well informed on the progress of your case. Make sure the lawyer that you choose feels the same way. Staff Make sure that you and your attorney have a firm understanding as to who will be handling your case. There are a lot of things that go on with a case that do not require the senior attorney s attention, and it s reasonable that those things be handled by other people in the firm. On the other hand, if you are hiring an attorney because of his or her trial skills, make sure that that person is going to be trying your case for you. You don t want to hire an attorney based on experience only to find that someone right out of law school will be your trial lawyer. Also, be clear on what types of things will be handled by the firm s paralegals and legal assistants. Again, in some cases, it s reasonable that the paralegals and legal assistants complete the day-to-day tasks so that your attorney can focus on the important aspects of your case. Just make sure that your attorney s staff isn t also doing the important stuff! 14

19 Chapter 4 HOW WE HANDLE A PERSONAL INJURY CASE? Every law firm handles cases a little differently. As you begin your relationship with your attorney, talk to him or her about what to expect. This information is very important so that you are prepared for each step in the process. We know that this is probably your first lawsuit so we take the time to explain the process to you. We find that this not only helps you prepare, but it also helps to alleviate some of the stress that can come with a lawsuit. 1. WE START FROM THE BEGINNING OF YOUR CASE PREPARING FOR TRIAL. Here are some of the tasks we may be called on to do in your case. Remember that each case is different, and that not all of these tasks will be required in every case. They are:» Initial interview with the client. This helps us understand the particulars in your case. It also provides us with the background information that we need to advise you on your next steps.» Educate client about personal injury claims. This allows you to understand your case in the context of the law. Some cases might sound good when you are talking to your friends, but might be completely different once examined by an attorney. 15

20 » Gather documentary evidence including police accident reports, medical records and bills. This is information that the other side will have. We need to make sure that we have every bit of information that could change the facts in your case. Attached is a copy of Crash Report Form DMV-349 and the codes used to explain the investigating officer s opinions and observations about the crash scene (see H1). As you can see, there is a wealth of potential information packed into this short form.» Analyze the client s insurance policy to see whether there are any coverages which the client has that may pay all or a portion of the medical bills while the claim is pending. By getting your medical bills paid up front, we are able to take some of the financial pressure off of you so that you can focus on getting the best outcome possible for your case. If you are financially strained, there will be a conflict between getting the best outcome and paying the bills that are due now. Sometimes there is little that we can do to relieve this strain during your case. The insurance company counts on that pressure as part of their delay and pay strategy.» Interview known witnesses. If others witnessed your accident, your case will be much stronger to a jury. In addition, people who observe your daily pain and suffering should be identified.» Collect other evidence, such as photographs of the accident scene and injuries. Also notify parties and others of the need to preserve evidence that is not in mine or my client s control.» Analyze the legal issues, such as contributory negligence and assumption of the risk. This involves looking at past cases and examining the particular circumstances in your case. In North Carolina (and every other state), the law not only includes those laws passed by the legislature but also decisions from judges made as they have interpreted the law. 16

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