Fayetteville Personal Injury Lawyer

NC Employees' Part-Time Jobs May Lead To Additional Complications

Robin Martinek — Fri, 20 Jun 2008 14:23:20 GMT

With the rise in gas prices and the food prices, many people must find additional sources of income to maintain their standard of living. But what happens if you get hurt working in that part-time job?

If, as in most peoples' circumstances, that part-time job is with a completely different employer there may be some unintended consequences. Under North Carolina law, an employer and/or workers' compensation carrier is not required to pay compensation (lost wages) for time lost at another job. Thus, a North Carolina employee who works a full-time job and a part-time job and is injured on one job, the employee only receives compensation based on the job in which they were injured. Obviously this can have extremely negative consequences if the part-time (and presumably lower paying) job is the one in which the employee was injured, since the employee will only be compensated based on the average weekly wage earned at the part-time job.

The reasoning behind the decision is that the employer and/or workers' compensation carrier would be unfairly treated if they must account for payment of compensation for temporary or total disability for a job for which the employer may not even know about. This reasoning was outlined in the North Carolina Supreme Court case, Barnhardt. Yellow Cab Co., Inc.

In contrast, it appears that the Courts have found that where the employee has two different jobs for the same employer, the employee should receive compensation based on the combined salaries for both jobs. Obviously a similar basis for this reasoning is used, since the employer would be well aware of the other job and have anticipated (either through insurance premiums and/or reserves) paying for both salaries. This argument was also outlined in the Barnhardt case, citing a previous holding by the North Carolina Supreme Court in Casey v. Board of Education. In a more recent North Carolina case, Holloway v. T.A. Mebane, Inc., the Court of Appeals outlined further exceptions to the above rule of not allowing the combining of salaries from multiple jobs to determine compensation.

While the North Carolina Supreme Court has recognized the plight of employees working two jobs and the unfairness of the law, they have found that this problem can only be remedied by legislative action.

Originally posted at InjuryBoard by Robin Martinek

POLICE MAY BE LIABLE FOR PUNITIVE DAMAGES FOR NEGLIGENCE

Brent Adams — Sun, 18 May 2008 05:00:02 GMT

The North Carolina Court of Appeals has ruled that the mother of a 17-year-old daughter murdered by the mother's husband could pursue a punitive damages claim against police officers for failure to make an arrest and failure to warn the mother that her husband was still on the loose.

In November of 2002 the mother obtained an order which prohibited her husband, Richard Ellerbee from threatening her or her children and from coming within 250 feet of them.

The mother claims that Jonesville police officers knew that Ellerbee violated the court order and failed to arrest him despite promising to do so.

Just prior to the daughter's death, Ellerbee's violations included breaking into the mother's home and threatening her life, digging graves in front of her home, stalking her, and threatening her children.

On November 18, 2002 the two officers were present when Ellerbee drove by her house. The officers promised to arrest Ellerbee and drove off after him with their blue lights activated. They did not arrest Ellerbee nor did they warn the mother that her husband was still on the loose.

The following day, a man believed to be Ellerbee broke into the mother's home while she was out. This man fatally stabbed and suffocated her daughter Candice Cockerham.

The North Carolina Court of Appeals held that this evidence is sufficient to allow a jury to decide that the defendants acted recklessly, manifesting a reckless indifference to the rights of Ms. Cockerham-Ellerbee (the mother) and her daughter."

The law generally does not allow individuals to bring negligence actions against municipalities or police officers for failure to provide protection from a third party's crimes.

However, a special duty exception allows negligent suits against municipalities and police officers when the law enforcement officer's conduct is willful and wanton.

Under N.C.G.S. § 1D-15, a plaintiff can win punitive damages by showing willful and wanton conduct and by proving the municipality or law enforcement officers to be liable for compensatory damages.

Originally posted at InjuryBoard by Brent Adams

HOW DO YOU CHOOSE A PERSONAL INJURY LAWYER

Brent Adams — Thu, 15 May 2008 01:34:21 GMT

If you turn your television on any weekday afternoon you will see a continuous stream of ads for personal injury lawyers.

Pick up your phone book and you will see page after page of lawyer ads.

How do you know which lawyer to choose?

Other entries on Injury Board have discussed the qualifications that a personal injury lawyer should have. But how do you find the right lawyer with these qualifications.

The answer starts with a discussion of what you should not consider when choosing a personal injury lawyer.

You should not assume that the lawyer with the biggest yellow page ad or most yellow page ads is the best lawyer for you.

You should not assume that the lawyer with the most TV advertising is the best lawyer for you.

All the yellow page ads and the TV ads mean is that the lawyer has paid a lot of money for advertising. It does not mean that they will be the best lawyer for you.

Some lawyers even use TV or movie personalities in their ads. Certainly, the movie star you see in the ad will not be involved in your case if you hire the law firm who sponsored the ad.

Ben Glass, a prominent personal injury and medical malpractice lawyer in northern Virginia has written a book entitled: The Truth about Lawyer Advertising. This book has useful information that you should consider when hiring a lawyer.

One way to find a good personal injury lawyer is to ask the lawyers you know who do not do personal injury work for recommendations for a personal injury lawyer. You should ask as many lawyers as possible for these recommendations.

You should interview a lawyer that you are considering before you make your selection. Ask these lawyers how many personal injury cases they have actually taken to court and tried in front of a jury. Ask them what trial lawyer organizations they are active in and what positions they have held in these organizations. Ask them if they have written legal articles for legal publications. Ask if they have lectured to trial lawyer groups on trial practice issues.

It is also helpful to ask your friends or acquaintances who have had personal injury claims how they feel about the lawyer who represented them.

You should check to see if the lawyer you are considering is Board certified. The National Board of Trial Advocacy is the certifying agency that certifies the competency of personal injury lawyers. Check their web site for a listing of the Board certified lawyers in your area.

It is not an easy job to find the right personal injury lawyer for your case. However, the more you ask around and the more lawyers you interview the better you will be informed and able to make the proper choice.

Originally posted at InjuryBoard by Brent Adams

YOUR HEALTH INSURANCE COMPANY WILL TRY TO TAKE YOUR PERSONAL INJURY RECOVERY AWAY FROM YOU

Brent Adams — Wed, 14 May 2008 00:22:06 GMT

Years ago when a personal injury attorney obtained an adequate recovery for a personal injury claimant, their job was done.

Now however, once an adequate recovery is obtained from the careless driver's insurance company, the job is only half way done.

The next battle for the personal injury lawyer is a fight with their client's health and hospital insurance company which will make a claim for reimbursement of all medical hospital bills paid under the injured party's health insurance policy.

In most cases, these claims by health insurance carriers can be successfully defeated such that the injured party does not have to pay any money back to the health insurance carriers.

Under North Carolina law it is illegal for a health insurance company to put a provision in a health insurance policy that requires the insured to reimburse the health insurance company for medical bills they paid under their health insurance policies. These provisions are called "subrogation clauses".

Most health insurance policies are issued through the insured's employer. Sometimes these are not actually insurance policies but part of an employee benefit plan. However, for all practical purposes these employee benefit plans act as a regular health insurance policy. These employees benefit plans claim that they are governed under a federal law commonly known an E.I.R.S.A.

Federal law does allow subrogation clauses which allow the employee benefit plan to be reimbursed for health insurance benefits they paid to the insured if there is a recovery from the careless driver's insurance company.

Federal law does trump state law such that federal law applies and subrogation clauses are therefore valid if they are governed by E.I.R.S.A. law.

However, a good personal injury lawyer will know how to defeat the subrogation clauses in most cases such that the injured party can collect the full proceeds from the claim against the negligent driver without having to repay their health insurance company.

There are some health insurance subrogation polices which cannot be defeated. Among these are health insurance policies which insure federal employees or families of servicemen. These policies, are governed by a different set of federal laws which give these insurance companies real teeth to enforce their subrogation clauses. Even in these cases, however, a good personal injury lawyer may, under the right set of circumstances, be able to negotiate a lesser subrogation payment to these insurance companies.

The above discussion does not apply to Medicare and Medicaid benefits which are paid under still a different set of federal laws.

An experienced personal injury lawyer should be consulted when the health insurance company is attempting to take away part of an injury victim's motor vehicle claim proceeds.

Originally posted at InjuryBoard by Brent Adams

Most Personal Injury Cases Are Settled

Brent Adams — Mon, 12 May 2008 22:50:36 GMT

Most personal injury claims arising out of motor vehicle collisions are settled. Even those claims for which lawsuit are filed are settled before trial in the vast majority of cases.

It is always better to settle a personal injury claim if possible. The advantages of settlement are many. Among these advantages are that settlement eliminates the uncertainty which accompanies a jury trial. Even the most experienced personal injury lawyer is unable to predict exactly how a jury will decide a case. If a claimant is able to settle the case for an amount which is satisfactory to him or her, even if it may not be the amount they hoped for at first, it is usually better to settle than to take a chance on a lower verdict from a jury.

Another advantage of settlement is that a settlement can be made, and money dispersed to the injured victim quicker than would be the case if the claim went to trial and a jury verdict was rendered. There is something to be said for getting paid sooner rather than later.

In addition, defendants can always appeal no matter how slim their chances of winning of the appeal. This appeal will almost certainly delay payment to the injured victim.

There's also the issue of cost involved in a jury trial. Although most lawyers represent injured victims on a contingency fee basis, there are certain costs involved in the jury trial such as deposition costs, expert witness fees, and other costs which have to be paid by the injured victim. In the end, these costs will come out of the injured victim's pocket. Although the trial court will have discretion to require the injured victim to pay some of these costs, judges do not always require the careless driver's insurance company to reimburse these costs.

Although it is always better to settle the claim if the careless driver's insurance company is willing to pay a fair amount, the victim should not be hesitant to go to court if necessary.

The injured victim should not accept a low settlement from the insurance company simply to avoid trial.

It is important that the injured victim be represented by a personal injury attorney who has a reputation for taking cases to trial when necessary. If a lawyer has a reputation for always settling cases and never going to court, insurance companies will usually pay less for that lawyer's cases.

Although it is better to take a claim all the way through court if the insurance company is not willing to offer a fair amount, settlement should always be the goal. If a claimant has a good personal injury lawyer who is ready to take his or her claim to trial, the cases will usually be settled short of having to actually go to trial.

Originally posted at InjuryBoard by Brent Adams

How Does the Amount of Damage to the Vehicle Affect the Value of a Personal Injury Claim?

Brent Adams — Sun, 11 May 2008 13:20:39 GMT

Insurance companies consider the degree of visible damage to a motor vehicle as a significant factor in evaluating personal injury claims. Insurance companies and defense lawyers for insurance companies always argue that if the car is not badly damaged, then the occupants of the car could not be hurt, or at least not seriously hurt.

At first glance his may seem like a valid argument. However, a further reflection will show that this argument (if the car is not hurt, the occupants can't be hurt) is totally fallacious.

We all know of instances in which a car is horribly mangled after a collision, but the occupants walk away without a scratch, totally unhurt. We also know of many instances in which the victim of the motor vehicle collision is killed seriously injured when riding in a car which showed little or no visible damage after the collision.

Why is this so?

Doctors tell us it is indeed possible to be seriously injured in a car that does not show visible damage after the collision. The cause of those injuries, are varied and complex. A lot has to do with the position of the victim's body immediately before the collision and whether the victim anticipates that a collision is about to occur. Of course, the age and physical condition of the victim plays a large part.

Unfortunately, insurance companies do reduce the value it places on a personal injury claim if there is little or no visible damage to the car in which the victim is injured. This makes it very difficult and usually impossible to settle a low property damage case for full fair value with an insurance adjuster without filing suit and asking a jury to set the value of the personal injury claim.

At trial it is also hard to achieve full fair value from a jury for a personal injury claim when the car in which the victim was riding was not significantly damaged.

The first thing insurance defense lawyers do at trial is to place in front of the jury a blow up photograph of the victim's car. Again, the argument is "how can the claimant be hurt when the car is not injured". This is an argument which appeals to the superficial off-the-cuff logic of the jury.

It is difficult to get a jury to seriously consider the testimony of medical doctors and other experts whose testimony clearly proves that a victim can be seriously injured in a collision in which the car is not seriously damaged.

In summary,here is the short answer to the question of whether the extent of damage to the victims vehicle makes a difference in the value of the personal injury claim : yes, it does make a big difference, but it should not!

Originally posted at InjuryBoard by Brent Adams

PERSONAL INJURY VICTIMS RECOVER MORE WHEN THEY ARE REPRESENTED BY A LAWYER

Brent Adams — Sat, 10 May 2008 21:11:00 GMT

When someone asks me if they need a lawyer to represent them in their personal injury case, I sometimes think of the lawyer joke that goes something like this: Asking a lawyer if a lawyer is needed to solve a problem is sort of like asking a barber if you need a haircut. The answer is always yes.

The answer to the question of whether an injured victim needs a lawyer is found in the statistics of the insurance industry.

Insurance companies are in the numbers business. Insurance companies keep numbers and statistics on everything. They categorize cases by the type of injury, that is whether the injury is to the back or the legs or the feet and rank them accordingly. Insurance companies can tell you what the average payout on a case involving medical bills in the amount of $3,000.00, $10,000.00 or any other denomination.

Insurance studies have consistently shown that insurance companies pay out more money to accident victims when they are represented by a lawyer than they pay out on virtually identical cases in which there is no lawyer. These studies show that even after making a deduction for attorney's fees, the claimant puts more net cash into his or her pocket if they are represented by a lawyer.

Because insurance companies pay out more when a lawyer is representing the injured victims, insurance companies would like to remove lawyers from the claims presented to them.

Of course, insurance companies keep this "big secret" to themselves.

These insurance companies consistently encourage claimants to settle the case without a lawyer and argue that the lawyers will take most of the money. That argument is simply not true. The truth is that in most cases, injured victims are better off with a lawyer and put more money in their pockets for their claims even after paying attorney's fees than they would without a lawyer.

That being said however, there are some cases in which the expected recovery is so small that the injured victim would be better trying to settle the case with the insurance company themselves. A good personal injury lawyer will tell a potential client when their case is so small that they would be better off handling the case themselves.

A good personal injury lawyer will not take a case unless there's a reasonable expectation that he or she can obtain more for the client than they could get on their own.

Originally posted at InjuryBoard by Brent Adams

If you have purchased a workers compensation "Ghost" insurance policy, you may be entitled to a refund

Brent Adams — Fri, 09 May 2008 10:11:38 GMT

Insurance companies collect millions of dollars from North Carolina citizens paid as premiums for insurance policies which provide absolutely no insurance. The insurance industry practice of issuing these "no insurance" policies has become so widespread that this particular type of policy has earned a special name in the insurance industry. These policies are appropriately referred to as "ghost policies". The term "ghost" refers to the fact that the insurance company will never have to pay a claim for these policies.

Why would anyone buy an insurance policy, which provides absolutely no insurance and for which they will never receive any benefit?

The answer lies in a strange quirk in North Carolina's Workers' Compensation law.

The law imposes an obligation upon general contractors to pay workers' compensation claims for injured employees of a subcontractor hired by the general contractor. If the subcontractor does not carry workers' compensation insurance. Because of this obligation, general contractors require from a subcontractor proof that the subcontractor carries workers' compensation insurance to cover the employees of the subcontractor.

Many subcontractors do not have employees, but instead work as sole proprietors working without any employees. An example would be plumbers, electricians, truck drivers, and other tradesman who are not regularly employees of the contractor that work as subcontractors and who have no employees.

Although the general contract has no obligation to the subcontractor to pay workers' compensation benefits for injuries, the general contractors still require the subcontractor with no employees to purchase workers' compensation insurance.

The insurance industry has accommodated this demand from general contractors for workers' compensation insurance by issuing a "ghost policy" to independent contractors who have no employees. These policies of insurance do not provide insurance coverage to the independent contractor because he or she is not an employee, but is the owner of the business. Since the subcontractor has no employees, there could never be any claim against the policy since there are no employees to insure.

Because of this unusual circumstance, the insurance company is never at risk on these policies. That is, there is no circumstance under which the insurance companies would ever be liable for a claim.

North Carolina law is clear that an insurance company is not entitled to any premium for insurance policies under which the insurance company is never at risk.

If you were forced by a general contractor for an employer to buy a workers' compensation insurance policy and if you never had any employees during the time, the policy was enforced, you may very well be entitled to a refund of all the premiums you've paid for any such policies.

Originally posted at InjuryBoard by Brent Adams

Company Settles Claim Arising From Use Of Pesticides

Internal Administrator — Mon, 28 Apr 2008 23:02:18 GMT

According to the Miami Herald, a producer of pesticides has agreed to a product liability settlement with a Florida couple whose child, now three-years-old, was born without limbs.

The couple brought the case against Ag-Mart, a produce company based out of Plant City, Florida alleging that the child's birth defect was contributed to by dangerous pesticide exposure during the parents' employment at Ag-Mart.

The couple worked in the tomato fields of Ag-Mart Produce at the time of their employment. Allegedly, Francisca Herrera received exposure to six different pesticides that later affected the birth of her child. Herrera's son, whom she had with Abraham Candelario, is said to have special needs which require provision for, for the remainder of his life. The amount the settlement was worth was undisclosed, but according to the couple's attorney, all needs will be provided for.

Originally posted at InjuryBoard by Internal Administrator

Court Upholds Ruling For 8 Year Old Boy Injured In A "Ramping" Accident

Brent Adams — Fri, 25 Apr 2008 23:36:07 GMT

The Fifth District Appellate Court in Mt. Vernon, Illinois affirmed upheld and the ruling of former Madison County Circuit Judge George Moran in favor of on eight-year-old boy who received personal injuries while riding his bike.

In October of 2001, Shelia Grant filed suit against South Roxana Dad's Club on behalf of her son Zachary, who was eight at the time. Grant alleges that her son rode his bike over a pile of dirt on the premises of Dad's Club for a practice called "ramping," which Zachary described as riding a bike up one side of a curb, bump, or dirt pile to become airborne on the other side.

According to Grant, on August 18, 1999, her son and three of his friends spent most of the day riding their bikes outside in order to "ramp" at Dad's Club. She says that in the parking lot of Dad's Club, there were two dirt piles that were each approximately four feet high that had been brought it for a construction project months beforehand.

Grant says that her son lost control of his bike while "ramping" on the dirt piles when his handlebars twisted and he fell, resulting in a broken arm that required two surgical procedures. She said that the following day, the dirt piles were removed by Dad's Club and spread around the premises.

According to Grant, Dad's Club was negligent by leaving the dirt pile where it knew or should have known that children would be playing and through failure to warn the children of the danger.

Originally posted at InjuryBoard by Brent Adams