CAROLINA INJURY LAW: A Reference Guide for Accident Victims

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2 CAROLINA INJURY LAW: A Reference Guide for Accident Victims Michael A. DeMayo Speaker Media Press

3 Carolina Injury Law: A Reference for Accident Victims 2010 by Speaker Media and Marketing ISBN All rights reserved, including the right of reproduction in whole or in part. Reproduction of this book in any form is strictly prohibited and a violation of the copyright. If you would like to use an excerpt of this book, kindly contact the authors and your request will be reviewed.

4 Contents CONTRIBUTING AUTHORS... 5 DISCLAIMER... 6 FOREWORD... 7 INTRODUCTION... 9 COMMITMENT TO THE COMMUNITY CHAPTER ONE: INSURANCE BASIC CONCEPTS CHAPTER TWO: UNDERSTANDING YOUR INJURIES AND DAMAGES CHAPTER THREE: CHOOSING A LAWYER CHAPTER FOUR: YOU HAVE BECOME A PLAINTIFF WHAT NOW? CHAPTER FIVE: LITIGATION CHAPTER SIX: SETTLEMENT CHAPTER SEVEN: TRIAL CONCLUSION... 95

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6 CONTRIBUTING AUTHORS This book is a collective effort compiled for you by twenty leading members of the plaintiff s bar in the states of North Carolina, New York, South Carolina, Texas, Pennsylvania, Arkansas, Florida, Georgia, Indiana, Kentucky, Vermont and Tennessee. Each attorney involved has contributed his expertise to this project to assure the reader that they are being provided with basic sound information when they find themselves the victim of an accident. This is not a law book, but an overview of personal injury law. Law Offices of Michael A. DeMayo, L.L.P. North and South Carolina Daggett Shuler Attorneys at Law North Carolina Terry Bryant Accident & Injury Law Texas Rainwater, Holt & Sexton, P.A. Arkansas Parr Richey Obremskey Frandsen & Patterson Indiana Martin, Harding & Mazzotti, LLP Attorneys at Law New York & Vermont Hagelgans & Veronis Pennsylvania Steinger, Iscoe & Greene Injury Lawyers Florida Stokes & Kopitsky P.A. Georgia John Bales Attorneys Florida Hughes & Coleman Injury Lawyers Kentucky & Tennessee Additional Editors/Writers: Sandra K. Rigby Lorelei Laird 5

7 DISCLAIMER This publication is designed to provide general information regarding personal injury claims and is not intended to be legal advice. It is sold and distributed with the understanding that neither the publisher, nor the authors, nor the contributors, are engaged in rendering legal or other professional services to the reader. If legal advice or other professional assistance is required, the services of a competent professional person should be sought. The publisher, authors and contributors make no representations or warranties with respect to the accuracy or completeness of the contents of this work and specifically disclaim all warranties, including without limitation warranties of fitness for a particular purpose. No warranty may be created by sales or promotional materials. The advice and strategies contained herein may not be suitable for every situation. Neither the publisher, nor the authors, nor the contributors shall be liable for damages arising herefrom. As this publication is not intended as legal advice, any use of this information will not create an attorney-client relationship. After an initial consultation, and before representing you on any claim, a written attorney-client agreement must be signed in order to create such a relationship. 6

8 FOREWORD By Michael A. DeMayo If you are reading this book, most likely you or a loved one have been injured in an accident through no fault of your own. You are probably feeling confused or worried as a result of this accident or personal injury. You are probably concerned about what you should do next. Maybe you are considering hiring a lawyer or visiting an attorney s office for the first time in your life. Maybe you are concerned about how to get medical treatment, or are worried about how you are going to be able to repair or replace your vehicle. You might be thinking, what will the insurance company offer me? Will it be fair? What do I do if the medical provider will not see me unless I have health insurance? What do I do if the insurance company does not offer enough money to pay my bills? What if the at-fault driver does not have any insurance or enough insurance to even cover my medical bills? Will the lawyer I choose take care of me and my family and how can I be sure they are the right lawyer for me? The multiple questions you will have after an accident are too numerous to cover even in this book, but one thing is for sure: You have been thrust into this position through no fault of your own, and it is now up to you to make sure you make the right decisions. Regardless of how you got to this point, it is now left up to you and your family to deal with all these issues and many more. More importantly, it is now your job to mend, heal and recover from the personal injuries and/or deal with the devastation of the death of a family member. It is up to you to put the pieces back together, and unfortunately, while the accident occurred in a very short timeframe, the impact from the crash can result in very serious and potentially permanent injuries and/or death. The number 7

9 8 Michael A. DeMayo of issues and challenges that can face an individual can be both physically and emotionally overwhelming. This book is for anyone who has found themselves where you or your family members are right now, namely, the victims of an accident. Over the years, we have met people who have been injured but do not seek legal advice or help. Sometimes, people do not get a lawyer because they may be intimidated or they think they can handle the case themselves. Some people think the only reason you get a lawyer is to get more money than you are legally entitled to, or they think it is un-neighborly to hire a lawyer. Some think that a lawyer cannot help them because their case is small or too challenging. Some individuals think that a lawyer will charge too much money; and some have even had bad experiences with lawyers in the past in other types of legal matters. What most of these people do not realize is that they are legally entitled to receive compensation for their injuries and losses. Most lawyers are just there to even the playing field; or in other words, to make sure that their client is treated fairly and compensated for their losses. In our society when someone breaks a window they are generally responsible for paying to have it repaired and replaced. So it is really upsetting to see fair and honest injured people get less than they are entitled to under the law, just because they do not have the resources, time or experience to ensure they are treated fairly. Being injured or having a family member killed is awful enough, so it is our intent to make sure that you or a family member are not victimized twice. This book was designed to help you navigate, or at least be conscious of, the numerous issues you will encounter on this forced journey to recovery.

10 INTRODUCTION The lawyers at our office have been representing accident victims for a combined total of over 110 years. On September 1, 1992, the Law Offices of Michael A. DeMayo, L.L.P. opened with a very simple mission statement: Put our clients interests first and everything else will follow. This simple motto has enabled our firm to prosper and grow into a team of dedicated attorneys, paralegals, former insurance adjusters, investigators, medically trained personnel, and a large professional support staff that has helped more than 33,000 accident victims in North and South Carolina since our office was founded. While each client has their own unique set of facts concerning the accident and their injuries, they also have individualized needs and questions about their case. Everyone wants a lawyer to provide them with direct answers to their questions. For this reason, our office routinely strives to provide simple answers to difficult questions, so that our clients can focus on getting better. Clients understand that many lawyers can work hard for them and can obtain a settlement on their behalf, but we have also found, and come to understand, that clients want to know that the lawyer and the team working on their case understands their issues, will listen to their concerns and will communicate with them as their case progresses. We talk to our clients and accident victims regularly about the issues they deal with, such as: the impact of their injuries upon their daily activities; medical expenses not being covered by health insurance; dealing with collection agencies and unpaid medical expenses; lost wages and the inability to work; and the inability to pay for living expenses, credit cards and monthly child support obligations. Injury victims deal with many of these issues 9

11 10 Michael A. DeMayo on a regular basis. Tragically, almost all of these issues were caused by circumstances that were no fault of their own. We understand that in many instances, dealing with the injury itself is just the tip of the iceberg. Lying below the surface of the visible injury are other significant issues, such as feelings of helplessness, disruption of daily life, confusion, uncertainty about the future and anxiety over the litigation process itself. Without the appropriate information explaining how to deal with these issues, life after an accident can become overwhelming. While this book will not answer every question that injury victims have, it will provide readers with a general overview of most of the issues they will encounter when selecting a personal injury lawyer. This book is also intended to inform readers about the processes they will go through after a claim is brought on their behalf. The goal is to walk you through the steps that need to be taken from the time of the accident through the resolution of the case. It is important to remember that this book is a broad review of personal injury claims and is not intended to serve as legal advice. Therefore, if you have any specific questions regarding an area of law, you should contact a qualified and licensed lawyer to assist you in answering your questions. Each chapter of this book provides you with information and direction regarding the practical issues you will encounter in dealing with your case. The chapters are meant to walk you through, step by step, the basic concepts and experiences you should expect to encounter in your injury, or the wrongful death, claim of a family member. To cover every aspect or possible outcome would be impossible, since every claim and person is unique and distinct. The organization of our book s logical and practical structure should come as no surprise since the book is based on years of personal experience helping accident victims. It is our hope that you will now have the tools to make intelligent and informed decisions, either by yourself or with our assistance.

12 INTRODUCTION 11 Law Offices of Michael A. DeMayo, L.L.P.: You Probably Already Know Us The Law Offices of Michael A. DeMayo, L.L.P. (LOMAD) was founded and opened by attorney Michael A. DeMayo. Mr. DeMayo had briefly worked for several law firms that represented insurance companies and had come to the realization that he could not spend his legal career saying what insurance companies have been saying for years: No, we re not responsible; No, you weren t hurt; No, your claim has no value; and No, we will not pay for your injuries. Mr. DeMayo decided to become a lawyer to help those with the greatest need, and if that meant fighting billion-dollar insurance companies on behalf of the common person, then so much the better. He assembled a very strong team of dedicated professionals with multiple offices to serve clients in all walks of life and socio-economic backgrounds. While our 110 years of combined legal experience and more than 33,000 concluded personal injury and wrongful death claims may seem impressive, LOMAD is more impressed with the number of clients who comment on our exceptional service, results and compassion toward our clients. LOMAD has tremendous client satisfaction, with a service rating consistently over 98 percent, and all of those satisfied clients say they would refer clients to us and use us again if necessary. Notwithstanding that LOMAD is a branded and highly recognized and respected law firm with an excellent reputation in North and South Carolina, over 50 percent of all of our clients come from past clients. That statistic speaks volumes about the service and results we provide to all of our clients. We strive to treat each client the way we would want to be treated, or better, if we were the client. While our firm is committed to securing maximum compensation for our clients, the most important service we provide for our injured clients is a commitment to our firm s theme: Your job (the client s) is to get better; our job is to do everything else. These words are not a punch line, but words we strive to live by.

13 12 Michael A. DeMayo We believe that by helping our clients we can assist with their financial recovery, while they work on trying to put the pieces of their lives back together during their medical recovery. In order to provide the most effective and competent representation to our clients, our lawyers attend continuing legal education seminars and lecture at continuing legal education conferences. In addition to our continued legal training, we strive to ensure that we are on the cutting edge of legal technology in order to make sure our clients receive the most effective representation. A critical component of being an effective advocate for injury clients involves the art and skill of persuasion. Persuasion in this context does not mean to deceive or trick; it means to enlighten and describe the full extent of our client s injuries. It is imperative that the insurance company and, if necessary, the jury understand the severity of an accident s aftermath in order for victims to resolve their claims for full compensation and justice. Effective persuasion in most injury cases will ultimately involve presentations and exhibits, many of which we present in an electronic format. Developing state-of-the-art technology exhibits for clients that summarize and demonstrate their injuries is very important. We strive to make sure that our clients receive the best technology available to ensure that their claims are thoroughly prepared and that the maximum settlement is reached on their behalf. Each case is unique and requires a thorough evaluation to determine the most appropriate presentation. Nevertheless, it is important that each case receives a complete evaluation in order to tell the most complete story on a client s behalf. We are proud of the recognition we have received from our peers and from insurance companies for our effective use of persuasive technology in resolving claims for our clients. In addition to working hard for our clients within our office, we believe it is important to maintain alliances with law firms throughout the country. We understand that it is important to share information with other lawyers and to ensure that, if there are cases that other law firms can handle more effectively than our firm, we may need to ally our clients with those other offices

14 INTRODUCTION 13 in order to meet their needs. In other words, if there is another law firm that is better able to help our clients needs, we strive to bring those firms or lawyers on board and, if necessary, direct our clients to that firm or lawyer in order to obtain the most effective representation. Our team knows how stressful it is to be injured, and they care a great deal about our clients and are available for their questions and concerns. They promptly return client phone calls and genuinely care about our clients. Our clients know that we are working hard to protect their rights, and that we are experienced and knowledgeable enough to handle their cases. This enables them to work on getting better, taking care of their families and getting back to the lives they knew before the accident. LOMAD has offices in Charlotte, Hickory, Monroe, Lumberton and Columbia, SC, with more offices to open soon. We have assembled a dedicated, highly skilled group of personal injury lawyers and staff whose sole purpose is the representation of seriously injured individuals in North and South Carolina. Our staff of legal professionals, including 20 bilingual employees, provides aggressive advocacy and has a record number of accomplishments and positive outcomes for our clients. We are well-respected by the community, our clients, insurance companies and insurance defense firms. We help guide our clients through the legal and financial challenges they face in a dignified and responsible manner. LOMAD has had numerous large settlements and verdicts for personal injury and wrongful death cases involving Automobile Accidents, Wrongful Death, Workers Compensation, Medical Malpractice, Nursing Home Negligence, Personal Injury, Mass Torts and Social Security Disability. A representative sample of our accomplishments can always be viewed on our website at While we update this site quarterly, we have recovered more than $275 million in gross settlements and verdicts between our inception and the publication of this book. At LOMAD, we pride ourselves on can t live without us customer service. Our clients are always treated with respect, kindness and compassion. To these ends, we require that telephone

15 14 Michael A. DeMayo calls be returned within 24 hours, staff members are constantly trained on the law, service and work product, and we measure our clients satisfaction at the conclusion of every case.

16 COMMITMENT TO THE COMMUNITY LOMAD is committed to serving the communities and people of North Carolina and South Carolina. Through our community service programs, we try to raise awareness and do our part to reduce the tragedies in our neighborhoods. In addition to providing the community with legal assistance, we have developed several community service programs to serve and protect the people in the areas we serve and help make our community a safer place. These initiatives include: The Michael A. DeMayo Scholarship Program If we save just one life, then all our efforts will be worthwhile. In 2010, for the eighth consecutive year, LOMAD awarded fifteen $2,500 scholarships totaling $37,500 to graduating seniors in Mecklenburg, Gaston, Catawba, Union, Cabarrus, Cleveland, Lincoln, Rowan, Caldwell, York, Stanly, Iredell, Alexander, Burke, Robeson, Scotland, Richmond, Anson, Cumberland, Lancaster, Chesterfield, Marlboro and Dillon counties. In the past, ten winners were chosen based on their academic achievements, community service and their responses to an essay question asking for their solutions and ideas about educating and preventing fellow teenagers and young drivers from suffering the tragic consequences of drinking and driving, but because of our growth starting in 2010, we bumped up the total scholarships awarded to 15. Since 2003, our firm has awarded $162,000 in scholarships to 72 local high school seniors. 15

17 16 Michael A. DeMayo Arrive Alive Arrive Alive is another community service program developed by LOMAD to show teens the tragedies that can result from underage drinking and driving. Held in conjunction with the scholarship program, Arrive Alive has been presented nearly 90 times in about 45 different high schools since its inception in Arrive Alive is targeted at area high school juniors and seniors who constantly face decisions about underage drinking and driving. Often, the opportunity is more prevalent during times of celebration such as spring break, prom and graduation. Unfortunately, our office deals with alcohol-related accidents on almost a daily basis. It is our goal to be able to prevent even one tragic accident from occurring with our program. During the Arrive Alive presentation we share stories and graphic details of deadly drunk driving accidents that our office routinely encounters, including the loss of teenagers injured or killed as the result of drinking and driving. While Arrive Alive and the Michael A. DeMayo Scholarship Program are our two major community service initiatives, we also have distributed child abduction prevention guides for parents and have supported numerous charities and organizations, including The Brain Injury Association, Cystic Fibrosis Foundation, Discovery Place Inc., The Family Center, Foundation for the Carolinas, Habitat for Humanity of Charlotte, Mothers Against Drunk Driving, The Salvation Army of Greater Charlotte, Levine Children s Hospital, Carolinas Medical Center, Safe Communities Safe Kids, Hospice and Palliative Care Charlotte Region, Legal Aid of North Carolina, Leukemia & Lymphoma Society, National MS Society, Second Harvest Food Bank of Metrolina, the Charlotte affiliate of Susan G. Komen Race for the Cure, United Way of Central Carolinas and YMCA of the Carolinas, Harris Family YMCA, Camp Sea Gull & Camp Seafarer, Charlotte Preparatory School, Christopher Columbus Italian Club of Charlotte, Legal Services of Southern Piedmont, Lifepath Hospice, Mecklenburg County Bar, North Carolina Bar Association, South Carolina Aquarium, St. Gabriel Catholic

18 COMMITMENT TO THE COMMUNITY 17 Church, University of North Carolina School of Law, and Wake Forest University. Our commitment to the community we serve is just a part of our commitment to you and your family, since we understand that sometimes our work and the results we produce can have a significant impact on the lives of clients and their families. Local Basic Concepts While this book is informative and illustrative, it is written in very general terms so that anyone in the United States can use the concepts and principles for a better understanding of what they will encounter after a serious personal injury or wrongful death. This book has been written as a collaborative effort by a group of experienced personal injury lawyers across the country. When the idea was presented I was very excited about the prospect of providing citizens of North and South Carolina with a resource to assist them in understanding personal injury law and what to do in case of an accident. However, because this is a collaborative effort by attorneys from all over the nation, the book deals with issues in broad terms, as opposed to specific issues that may be unique to North and South Carolina law. Because of the general nature of the book s content, it is not intended to, nor will it necessarily, address issues specific to the laws of the Carolinas. In addition, the book was written in 2008, and laws periodically change. As such, we have included a few basic specific issues about North and South Carolina law that you will not find in the rest of the book, which may help guide you in navigating your claim. Nevertheless, you should seek an experienced North or South Carolina personal injury lawyer s assistance if you have any questions regarding any legal issues or statutes specific to your claim for personal injury or the death of a family member.

19 18 Michael A. DeMayo North and South Carolina Time Limits When a motor vehicle accident happens in North or South Carolina it is important that accident victims contact an attorney shortly thereafter to ensure that their rights are protected from the start. Generally, the statute of limitations for a personal injury claim in North Carolina is three years. For wrongful death claims, that time period is two years. In South Carolina the statue of limitations is three years for both personal injury and wrongful death, unless the case involves a state or local government; in which case the statute is two years. There are many time limits that may affect any particular case. Because this book is intended for reference only, it is important that the reader consult with a lawyer to determine any limits that may apply to their particular case. Standard of Care and the Law Under North Carolina law every automobile accident claim is governed by contributory negligence. Under this standard the victim has to be 100 percent free of any negligence to be able to recover any damages. This standard is significantly different from most states, which employ comparative negligence. It is much more difficult for the plaintiff to obtain a recovery under contributory negligence, since even 1 percent of negligence (fault) on their part bars them from recovery. In North Carolina it is an all or nothing proposition, so how you handle the case immediately after the impact can be very important. With this stringent standard it is critical to always contact an attorney before giving a statement of any kind, since admission of any negligence will usually result in the denial of your case. In 1991, South Carolina adopted comparative negligence, which allows plaintiffs to recover if they are 50 percent or less at fault for their damages. However, if plaintiffs are partly at fault, their recovery will be diminished by that amount of fault. For example, if a plaintiff has $100,000 in damages and the

20 COMMITMENT TO THE COMMUNITY 19 jury determines that the defendant was 75 percent at fault and the plaintiff was 25 percent at fault, the defendant s insurance company would only be obligated to pay the plaintiff 75 percent of his/her total damages. This would result in a recovery of $75,000, rather than the full $100,000, due to the reduction for comparative fault. Length of Process Our clients often ask us how long it will take their case to be resolved or tried. The best answer to this question is that cases vary in the amount of time they take to be resolved. The amount of medical treatment, complexity of the fault issues, the number of parties in the case, and the kind of court the case is in are all factors that affect the length of time it will take to resolve your case. While injury victims would like to have their cases resolved without delay, it is important to be patient throughout the life of the case. Cases that are rushed to settle quickly, and quick settlements, may not always be in the best interest of the injury victim bringing the claim. With this understanding, cases can take anywhere from a few months to several years to be resolved. These timeframes include cases that proceed to mediation, which may be resolved quickly, and cases that proceed to trial, which may take longer to resolve. Please remember that even though the case may take longer than you would like, there are many factors that dictate how long it takes for a case to get to trial, most of which are beyond your attorney s control. Ultimately, no matter how long it takes to resolve your case, it is vital that you and your attorney maintain open lines of communication throughout the course of your case. Most cases do not require litigation before they settle, but they still have to be properly prepared to be able to settle prior to litigation.

21 20 Michael A. DeMayo Statutory Required Insurance Limits Most states require minimum liability requirements to be able to operate a motor vehicle on the roadways of that particular state. For example, in North Carolina, the minimal basic coverage required is 30/60/25 (in thousands). In South Carolina, the minimal coverage required is 25/50/25. The coverages are coded in a particular order to designate the category of coverage. The first number generally refers to the maximum bodily injury liability coverage available for any one person injured in an accident. In other words, the most any one person could recover in North Carolina with minimum liability limits, regardless of the severity of their injury, would be $30,000. The second number refers to the aggregate or total bodily injury coverage available for all parties that may have been injured in the accident. The payments cannot exceed this amount even if one or more of the individual s bills are more than the total coverage. For example, in North Carolina, with minimum policy limits, the most everyone involved in a single accident could recover regardless of the total amount of medical bills would be a total sum of $60,000. Lastly, the third number sets out the maximum property damage liability coverage available for one accident. In both South and North Carolina, under the minimum required limits, this amount is $25,000. How Much Coverage Is Enough Coverage? Minimum limits are woefully inadequate to afford you and your family even the most basic protections. In our office, clients who are admitted to a hospital due to their personal injuries and who have at least a weeklong hospitalization routinely average medical bills in excess of $50,000. Obviously, just the medical bills in this fairly common example exceed the minimum coverage by $20,000. So if you or a family member are injured as a result of someone else s negligence and they have minimum limits, as unfair as it may seem, you are not going to have all your medical bills covered.

22 COMMITMENT TO THE COMMUNITY 21 While there are ways to deal with this situation and we do so routinely it would be much more advantageous to have enough coverage to pay expenses incurred in an accident when the defendant s coverage is inadequate (see underinsured coverage). Who is the Defendant in the Case, and Must I File a Lawsuit? Each state has its own rules in regard to who would actually be named the defendant if a lawsuit were filed in court. In North and South Carolina, the injured plaintiff asserts the claim against the person who caused the injuries (the defendant), but the lawsuit will generally not name the defendant driver s insurance company. The owner of the defendant s vehicle is usually a defendant as well. If the defendant was operating the vehicle in the course of his employment or as an agent for a third party, then a claim could be asserted against the employer or third party. Every driver in the Carolinas is required to have automobile insurance in order to drive on the public roads in North and South Carolina. This insurance coverage provides two basic liability benefits for insured drivers. The first benefit is that the defendant s insurance company will pay for any damages the negligent driver causes to the injured plaintiff. The second benefit is that the insurance company provides a lawyer for an insured driver who negligently caused an accident. If an insured driver negligently injures someone while driving an insured vehicle, the insurance company will hire a lawyer to represent and defend the negligent driver in court. However, North and South Carolina laws provide that the insurance company is not to be named as a defendant in the case. Most of the time, any damages owed by the negligent driver will be paid by his or her insurance company, up to the policy limits. Most verdicts or settlement will be paid by the insurance company and not by the defendant driver who caused the accident, despite the fact that the insurance company is not named in the case, or even talked about during the trial. In fact, although the insurance company will pay for the plaintiff s damages caused by the defendant, North and South Carolina laws prevent the jury from being told that the defendant driver