Did you know that in North Carolina, the deck is sometimes stacked against people who have been injured – through no fault of their own – by negligent drivers? It’s a fairly complex nuance to our state’s laws that many people wouldn’t know unless they have experience with it or are a lawyer themselves. That’s why it’s so important for people who have been injured in North Carolina to seek out an experienced personal injury lawyer if they were injured by another’s negligence.
Insurance Companies Can Play Hide and Seek Against a Jury
One example of the deck being stacked is the state’s evidentiary rule that allows liability insurance companies to essentially “hide” from juries at trial. Specifically, in North Carolina, a jury is not allowed to know that an insurance company has an applicable insurance policy that could cover the money being sought by the injured party in trial. Rule 411 of the North Carolina Rules of Evidence reads as follows:
Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. (1983, c. 701, s. 1.)
The stated rationale for this rule is that juries could be convinced to award higher damages to the plaintiff if they know that the defendant’s insurance company is “on the hook” for it, rather than the actual defendant for causing the injury.
NC Juries May Not Know Just How Much Insurance Companies Control
The truth is that in the vast majority of cases, there is liability insurance coverage involved. This means that the insurance company is responsible for paying any awards within the policy limit, and they are also responsible for deciding whether or not to settle the case out of court or to take the case to trial. It is also the insurance company who hires the lawyer who represents the defendant in court. In other words, they call the shots on behalf of the defendant.
The fact of the matter is that the liability insurance company controls every aspect of the case from the defendant’s side — and yet an insurance company cannot be named as part of a lawsuit or referenced in a trial? That’s extremely unfair to the plaintiff and all injured parties.
An experienced personal injury attorney at James Scott Farrin can guide you through the complexities of your legal case. Call today for a free cas evaluation.
Effects of Withholding Liability Insurance Information on Juries
Granted, this rule may make sense under certain situations, but it has a significantly pro-defendant effect on juries, and in my opinion, has resulted in many unfair jury awards to plaintiffs who have been seriously injured, especially when a juror is made to believe that the defendant may have to pay the award out of his or her own pocket. And while at the conclusion of the trial, the judge will give the jury an instruction to not consider the defendant’s ability or inability to pay any award reached, in reality, I believe this is always a factor that a jury will consider.
What about when the defendant is a close friend or family member of the plaintiff? The friend or family member certainly does not control whether the insurance company treats the plaintiff fairly. So when the insurance company refuses to fairly negotiate a settlement, your attorney has no other choice but to name that close friend or family member in a lawsuit.
Now who has the upper hand? The insurance company just forced the plaintiff to sue a friend or a relative in court, and that never looks good to a jury. The insurance company is very aware of this tactic, and will not be afraid to use it.
A Real-World Example
About few years ago, there was a case that received national attention when a New York woman sued her twelve-year-old nephew (who was eight at the time of the incident) over a badly fractured wrist she had sustained when he accidentally knocked her over and caused her to try to catch herself with her wrist.
The backlash she received from the public was brutal as they could not understand why she was suing her twelve-year-old nephew for $127,000. How in the world could the boy ever be able to pay that much money? The jury came back and awarded the plaintiff nothing on her claim.
The truth of the matter is that the plaintiff was never seeking any money from her own nephew. She was seeking to get her existing medical bills covered by the applicable homeowner’s insurance policy. Prior to trial, the insurance company offered a measly $1 to settle her case.
Even though plaintiff’s dispute was with the insurance company and not the nephew, New York has a similar rule to North Carolina’s, where the insurance company could not be named as a party to the suit nor could there be any mention of liability insurance.
If the jury were to have been made aware of the full details of this woman’s claim, is there any doubt that there would have been a different result?
North Carolina Personal Injury Cases Can Be Complex – Call a Personal Injury Attorney for Help
If nothing else, this blog should illustrate just one of many complexities of a personal injury lawsuit in North Carolina, as well as why it can be critically important to have an experienced personal injury attorney to guide you through the process.
And while the deck may be stacked against personal injury plaintiffs in the state, there are usually exceptions to many of the rules – depending on the facts and circumstances of your particular case. An experienced personal injury attorney can help level the playing field by identifying those exceptions that may tend to benefit your case and protect you against the insurance company’s tactics.
Please call the Law Offices of James Scott Farrin at 1-866-900-7078, chat with us, or contact us here for a free case evaluation. We don’t recoup an attorney’s fee if we don’t get you compensation.
When you’re hurt in a car accident in North Carolina, many people think hiring an attorney to represent you implies that you’ll be in a court at some point. But how often do car accident injury cases really end up in court, and what does a personal injury attorney do when that happens? Here’s how it works.
If you’ve been hurt in a car wreck, don’t go through the process alone. Our experienced personal injury attorneys can help.
What Does a Trial for a Car Accident Lawsuit Look Like in NC?
Most of the time, your personal injury attorney won’t even need to file a lawsuit. The vast majority of claims made to insurance companies are settled. If you are looking at the prospect of having to file a lawsuit against someone in a personal injury matter, it likely means one of two things. Either the person’s insurance company has denied their insured is legally responsible for your injuries, or there is a significant disagreement as to the value of your case. Don’t fret as there is good news.
Of the cases when a lawsuit is actually filed, U.S. Government statistics show that only about 5% of personal injury cases go to trial. The other 95% tend to settle at some point between the filing of a complaint with the court and the actual jury trial. While experienced trial lawyers enjoy the litigation process, to the average personal injury plaintiff, the process can be best described as long.
It takes, on average, between twelve (12) to eighteen (18) months for a case to reach the trial stage depending on your jurisdiction. The purpose of this blog is to introduce you to the various stages of the litigation process. These are 1) Pleadings Stage 2) Discovery Stage 3) Mediation Stage and 4) The Trial.
Pleadings – Stating a Claim
This is how a lawsuit starts. The Plaintiff’s attorney files the Complaint with the Court. Then it’s served to the Defendant. The Complaint itself is a rather formal document in language and format, setting forth the legal and factual basis for the lawsuit.
The Complaint will tell the Defendant why they are being sued through a series of allegations that the Plaintiff’s attorney believes they will be able to prove through evidence at trial. The Complaint needs to state any reasons why the Defendant is liable for your injuries so that the Defendant can respond to them.
Once the Defendant has been served with the Complaint, most commonly by the Sheriff’s office or by certified mail return receipt requested, the Defendant(s) has 30 days to respond. This is usually done via a document called an Answer. It’s not unusual for the Defendant to request, and be granted, an extension of 30 days in which to formally respond to the Complaint.
Like the Complaint, the Answer is a formal legal document both in its language and format. Within the Answer, the Defendant will usually respond to each and every allegation of the Complaint by admitting or denying each allegation made. Additionally, the Defendant will state reasons why he or she does not believe they are legally responsible for Plaintiff’s injuries. It may even assert its own claims against the Plaintiff, called counter-claims, which the Plaintiff would have to formally respond to as well.
Discovery – Making the Case
Discovery is the pre-trial stage in a lawsuit when each party investigates and tries to establish the facts of the case. This is done through the rules of civil procedure. Both sides obtain evidence from the opposing party and wherever else it can be found. This is accomplished using “discovery devices.” That’s a fancy name for “asking for things.” A few examples are requests for answers to interrogatories, requests to produce documents and things, requests for admissions as well as depositions.
Typically, each party will serve discovery requests on the opposing party with the initial pleadings referenced above. Occasionally, these requests will be sent shortly thereafter. Each party will generally have thirty (30) days to respond, but as a matter of course will request and be granted an extension of thirty (30) additional days in which to respond.
During that time, the Plaintiff and Defendant will meet with their counsel to provide answers and documents to respond to the various requests. The attorney will then finalize those answers and provide to opposing counsel in a timely manner. The terminology gets a little complicated if you’re not an attorney, but here are some terms you’re likely to hear and what they mean.
Interrogatories are open-ended, written questions to the opposing side. They’re used to gain information regarding the case. For example, one may ask the other party to identify any and all evidence they will rely upon in support of their claim or defenses. Interrogatories can become very complex with multiple sub-parts, so most jurisdictions limit the number of interrogatories either party can ask of the other.
Requests for production are arguably the most useful of the discovery tools. They allow one party to ask the other to provide documents or other tangible evidence, even electronically stored information. In addition, a request for production allows you to seek similar information from non- parties (people other than the Plaintiff and Defendant) by way of subpoena.
Requests for admissions ask another party to admit or deny certain carefully worded questions. For example, one party may ask the other to admit certain facts related to an automobile wreck that may tend to prove that party’s liability or responsibility. These questions are used to narrow down the issues of fact truly in dispute in the matter.
Once the written discovery is complete, the parties will schedule depositions. Depositions are the process of taking live testimony from witnesses and parties before a trial. The witness or party is required to appear (usually in their own attorney’s office) and testify under oath before a court reporter, who records the entire proceeding. While the testimony and questioning are governed by the rules of evidence, there is no judge present and counsel will note any objections for the record to be dealt with at such time the testimony seeks to be introduced at trial. An experienced personal injury attorney will prepare you for your testimony ahead of time to make sure you are comfortable and prepared for any questions you may receive.
Mediation – Can We Come to Terms?
A mediation is when the parties to a lawsuit and their attorneys sit down with a neutral third party, called a mediator, and work towards resolving the case, if possible. Also present at the mediation is the insurance adjuster.
The mediation occurs after the facts of the case are largely established but prior to trial. This is really one of the last times that the Plaintiff will have an opportunity to choose how his or her case will be decided.
The mediator is almost always an attorney who typically doesn’t know anything about the case. The format is simple. The mediator will do a brief introduction of the parties and participants, explain his or her role, and establish how the mediation will proceed.
As the Plaintiff, your attorney will give a presentation to the mediator and the other side regarding the strengths of your case. The insurance company’s defense attorney will do the same from his or her clients’ perspective. Expect for the opposing side to make statements that you will strongly disagree with. It will happen.
After each side makes its opening presentation, the parties will separate with one party moving to another room. The mediator will then meet with each party privately to learn more about each party’s case and find a way to help the parties reach some sort of compromise. The mediator will use the information he or she has learned from each party, except any information received in confidence, to help each side to see something about their own case, whether good or bad, they have not yet seen or appreciated.
This back and forth by the mediator continues while the parties negotiate and feed, through the mediator, information, arguments and offers to the opposing side until the matter is settled or until an impasse is reached. Occasionally, a case may require the parties to reconvene for a second session. If a settlement is reached, the parties will sign a binding document advising the court that the case has been resolved and what the terms are. If an impasse is reached, the mediator will notify the court and the parties will make final preparations for the trial.
The Trial – Your Day in Court
The trial is the culmination of all of the work done on your case. The very first thing that happens on the first day of trial are pre-trial motions, or motions in limine. These are motions by either side seeking to either exclude certain testimony or to limit the issues for the jury to decide. A common motion by the insurance defense attorney would to exclude any references to liability insurance in the presence of the jury.
After the motions in limine, there may be any number of housekeeping matters the judge may want to discuss with the attorneys, including checking once more to see if the parties can reach an amicable settlement prior to trial.
The next order of business is picking a jury. This is also called the voir dire (pronounced vwar DEER). Voir dire is where both attorneys, as well as the judge, will question members of the jury pool to determine whether they are suitable to serve as jurors on this particular case. Each side has a certain number of potential jurors they can remove for various reasons. For example, an experienced trial attorney would likely not want a jury member who is an insurance adjuster. Conversely, the insurance defense attorney would likely not want someone on the jury who had been injured by a negligent driver and had to resort to filing a lawsuit. Once the jury (usually 12 people and an alternate) is chosen, the judge will give instructions regarding how to govern themselves throughout the course of the trial.
Next come the opening statements. The opening statements are when the attorneys outline for the jurors what the case is about and forecast what they believe the evidence will be. Typically, the Plaintiff’s attorney goes first, as he or she has the burden of proving his or her case to the jury.
Once both sides give opening statements, the Plaintiff’s side will call its witnesses. During this phase of the trial, the Plaintiff’s attorney will question each witness to solicit testimonial evidence used to support the case that is being made. The testimonial evidence is also used as the foundation to introduce documents and other exhibits to the jury as well. This is called the direct examination of a witness.
After the Plaintiff’s attorney completes his or her examination of each witness, the Defense attorney will get to cross-examine each witness. An example of a list of witnesses that may be offered by the Plaintiff would be: the Plaintiff, police officer, any witnesses to the collision, Plaintiff’s doctor(s) and maybe a friend or family member of the Plaintiff who may testify about the Plaintiff’s injuries and how they may have impacted him or her.
Once the Plaintiff has finished questioning witnesses and introducing evidence, the Defense has an opportunity to examine witnesses and introduce evidence if they choose to do so, and counsel for the Plaintiff will have an opportunity for cross-examination. Throughout the questioning of witnesses and introduction of evidence, the lawyers may occasionally object to a question or a response or a particular document and the judge will need to rule on whether the material objected to can be considered by the jury. Under some circumstances, certain objections to evidence (testimonial or otherwise) will need to be argued outside of the presence of the jury.
Once both sides have concluded examinations of all witnesses, the jury will usually take a break and return to the jury room while the judge and attorneys conference to determine what jury instructions are appropriate based on the admitted evidence received during the course of the trial. Once completed, the jury is returned to the courtroom and closing arguments begin.
The closing arguments are speeches made at trial after all the evidence has been presented. Each side reviews and summarizes the evidence presented at trial in the light most favorable to the side making the argument. This is the last time the attorneys will be able to speak to the jury prior to a verdict, so they are a pretty big deal. During the closing arguments, an experienced personal injury lawyer will passionately and persuasively explain why the verdict should be in favor of the Plaintiff.
Following the closing arguments, the judge will instruct the jurors on the questions that need to be answered as well as the applicable law that will govern their deliberations. Once complete, the jurors will return to the jury room, choose a foreperson and begin deliberations. Deliberation times vary. They can be as short as maybe 30 minutes or as long as several days depending on the magnitude and the complexities of the case, as well as the level of disagreements between the various jurors. The verdict must be unanimous.
When a verdict is reached, the foreperson informs the Bailiff, who informs the judge, who will then notify the parties. Once the parties are seated in the courtroom along with the judge, the jury members will return to their seats. The judge confirms that a verdict has been reached, and the clerk will publish the verdict by reading aloud. With the verdict published, the jurors are thanked and dismissed. The verdict essentially ends the lawsuit, except in the rare case where the losing party wishes to, and has legal grounds for, an appeal.
An Experienced North Carolina Personal Injury Attorney Willing to Go the Distance
When you’ve been injured in accident, you have to understand that the insurance company wants to give you as little as possible – that’s how they make a profit. It’s not personal to them. For you, who could be in a lot of pain, with mounting worry and medical bills, it IS personal.
You want an attorney who is ready and willing to fight for you, including going to trial. If you’ve been injured, our attorneys are willing to go the distance. Contact the Law Offices of James Scott Farrin at 1-866-900-7078. We’ll listen to you, evaluate your case, and explain your options free of charge. Tell them you mean business!
When applying for disability, it is important to know not only what the Social Security Administration (SSA) is looking for while deciding on a disability claim, but also what benefits you’ll receive if it is approved. If you have done your research or spoken with someone that has received disability, you have probably heard of the term “backpay,” but you might not know what it is exactly, or how you receive it.
Social Security Disability Backpay, Defined
In short, Social Security Disability backpay is a lump sum payment for the time period that you were eligible to receive disability payments but were waiting to be approved for disability benefits. Because it can take people years to get approved for disability benefits, many people receive backpay and some people can receive a significant amount.
Once you are approved for Disability benefits, the SSA will then determine the following for backpay:
When exactly you became disabled
When you were entitled to start receiving payment
How much your monthly benefit payment will be going forward, and
How much backpay or retroactive disability benefits you are owed
Generally, your backpay amount is a calculation of your monthly benefit amount and how many months you were entitled to a payment before you were approved for benefits. There are many exceptions where backpay can be reduced.
However, generally speaking, the SSA will multiply the monthly benefit amount by the number of months that you were entitled to a payment before being approved and then will pay that total amount as one lump sum once you’re approved.
Before applying, it is important to know that your monthly benefit amount and how much backpay you may receive will be dependent on which disability program you apply under and the onset date of your disability, as determined by SSA.
For Social Security Disability Insurance (SSDI) Disability and Supplemental Security Income (SSI) Disability applicants, the SSA may grant backpay benefits back to the month after you applied for disability. SSA issues a backpay payment to compensate you for the time that you were disabled and eligible for payment but had to go through the SSA’s application process to get approved. It is important to note that although it is possible to receive backpay for the time that your claim was being processed, receiving backpay is not guaranteed. Additionally, if backpay is granted, the duration of time for which you will receive backpay and the amount of backpay are determined by the SSA.
Speak to an attorney before you apply for Disability.
Call us today at 1-866-900-7078 for a free case evaluation.
SSDI and SSI Application Process: When Backpay Starts
When you submit your application for disability, you will tell the SSA that date that you believe you became disabled. This is called your Alleged Onset Date (AOD). After the SSA reviews your claim and finds you to be disabled, they will give you an Established Onset Date (EOD). The EOD is the day that the SSA has determined that you became disabled.
For SSI applicants, the earliest possible EOD that SSA will give is the day that you applied for SSI. This is why SSI backpay does not go back farther than the month after you applied for SSI.
For SSDI applicants, your EOD can be much earlier than the date of the application. For SSDI applicants with an earlier EOD, it is possible to get retroactive disability payments.
Disability Backpay vs. Retroactive Disability Payments
It is important to avoid confusing disability backpay and retroactive disability payments.
For SSDI applicants, it is possible to receive backpay for the period that you were waiting to get approved and retroactive disability payments for some of the time that you were disabled before you applied.
Retroactive disability benefits are paid for the time period after your EOD, after your entitlement date, but before you applied for SSDI. Retroactive disability benefits can be paid for up to twelve months (one year) prior to the submission of the SSDI application. To determine the amount of retroactive disability benefits, the SSA will set the EOD and the date of entitlement.
The date of entitlement is the date that someone approved under SSDI became entitled to monthly disability payments. This date is different from the EOD because under the SSDI payment rules, there is a mandatory five-month waiting period after the EOD before someone disabled under SSDI can start getting payments.
Whether you’re receiving backpay only or backpay and retroactive disability benefits, once the amount of benefits are calculated, you will receive the lump sum payment within two months of being approved for disability benefits.
Contact a North Carolina Social Security Disability Lawyer
Remember, backpay is not guaranteed and you can be approved for disability payments going forward without receiving an award for backpay or retroactive disability benefits. You should contact an attorney if you would like to know if you can receive backpay or retroactive disability benefits before you apply for SSI or SSDI. Please call our legal team at 1-866-900-7078 or contact us here if you have any questions.
So, what happens if you’re injured in an accident during, or caused by, severe weather conditions?
The Weather, the Road and Personal Injury
Can the Weather Be at Fault for an Accident While I’m Driving?
Yes. The weather can be at fault for a wreck but only under unusual circumstances. For example, the road could be poorly constructed. The weather can also be a contributing factor if for example the vehicle goes into a defective guard rail.
If Another Driver Is Involved, How Important Is It to Determine Fault, and How Is It Determined?
It is very important to determine fault. Initially, fault is determined from the crash report that is prepared by the investigating law enforcement officer. It is always important to call the police whenever there is a wreck. However, the law enforcement officers may make a mistake or enter the wrong codes. Fault is ultimately determined in a negligence case by what a jury of twelve people decide.
Can’t It Even Be the Weather’s Fault?
If the weather is at fault, it is an accident.
Does It Matter If There Are Severe Weather Warnings? Does That Make Me More Responsible for My Choice to Drive in That Weather or Does It Matter?
If you are driving during severe weather, you may be contributory negligent. If the weather comes upon you suddenly or upon somebody else suddenly, then it can be what is described as a sudden emergency. A sudden emergency is a heightened standard of care. Basically we all have an obligation to drive and operate a vehicle as a reasonable person would in the same or similar circumstances. If you are hit with sudden adverse weather, the standard becomes driving as a reasonable person would in those same or similar circumstances – the adverse weather.
Let’s Say a Storm Knocks Out Power to an Intersection and the Traffic Signals Are out. What Happens If I Get Hit and Injured While Going Through That Intersection?
The rules of the road always apply. If traffic signals are out, then you have to follow the rules of the road as if there is an intersection with no traffic lights and all roads have stop signs. Everyone is expected to come to a complete stop at the intersection. The vehicle that arrives first goes first and then you circle around counterclockwise. A vehicle turning yields to a vehicle going straight.
What Happens If My Child Is on a School Bus During Severe Weather and Is Injured in an Accident?
A child on a school bus is injured due to severe weather, it is an accident. However, if the bus driver and/or another person is at fault, for example for running a stop light, and your child was injured as a result of the collision, then your child would have a claim.
The Takeaways: While storms can contribute to an accident, injury caused directly from weather conditions is an act of God. And you can’t sure God. If your actions or reactions cause an accident, you are likely to be at fault just as in normal weather. If someone else’s action or reactions cause you injury, you may have a claim. And, in certain cases, a weather-related accident may be worsened by a defect, such as a bad road or a faulty guardrail. In those case, you may have a claim.
Contributory Negligence Defined Contributory negligence: n. a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence “contributed” to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant. NOTE: Some exceptions or exclusions can apply, which is why it is always advisable to speak with an experienced personal injury attorney.
Be careful while driving in rough weather. If you were not properly warned of a hazardous situation, you may be entitled to compensation. Call 1-866-900-7078 for a free case evaluation.
Storms, Wind and Who Pays if You Get Hurt
I’ll Get a Bit More Specific. What If I’m Hurt by an Actual Tornado While Driving? They’re Freak Storms, After All.
If you are driving during a tornado and injured as a result, you would not be entitled to any recovery.
What If a Tree from a Yard Along the Street Gets Blown Over and Hits My Car, Injuring Me. Does That Homeowner Have to Pay for My Injuries?
A tree that is blown over by a storm would only create liability if the tree owner knew the tree was weak or damaged and should have been removed or replaced.
What If That Tree Is Already in the Road When I Hit It and Get Injured?
If you hit a tree in the road and are injured, you have no recovery unless someone was chopping down the tree expecting it to fall in a different direction and instead it fell on you as you were driving by.
Let’s Say I’m Driving on the Highway and High Winds Blow a Tractor Trailer Over, Causing Me to Crash. That’s Not My Fault, Right?
Right.
When a Storm Blows Over… a Truck
The University of Kansas Department of Engineering performed a study in 2009 to determine the effects of wind on motorists. Full tractor trailers were found vulnerable to being blown off the road in winds of 60mph or more. Empty tractor trailers, on the other hand, were adversely affected in crosswinds of just 15-20mph.
The Takeaways: Storms that have high winds pose numerous risks, but the vast majority of their effects are acts of God. There is little chance that someone is going to be at fault – other than you. The lesson here is not to drive during wind storms. Got off the road!
Water Hazards, From Above and Below
Water Is Dangerous as Well, Especially over the Road. Let’s Say I Drive into Water That’s Covering the Road and Get Hurt. Does It Make Any Difference If There’s a Flash Flood Watch?
If water pools on the road due to a defective road design or maintenance, you may have a claim. If you just drive into standing water, you are responsible for your own actions and would not have a claim. If you have decided to drive during a flash flood watch and you are in an area that is known to flood, you would have no claim.
What If I Hit Someone Trying to Avoid the Water? Or They Hit Me Trying to Avoid It?
If you hit someone while driving, regardless of the reason, it is likely that you are going to be at fault. The same applies for them.
Half a Million Injuries a Year Occur on Wet Roads
According to the U.S Department of Transportation, the seemingly innocuous wet road is one of the most dangerous places to drive. Each year, about 75% of weather-related vehicle crashes occur on wet roads, and nearly half occur while it’s raining. Wet road crashes account for more than 5,000 fatalities and more than 540,000 injuries. Roadway flooding was said to be the greatest source of fatalities.
The Takeaways: Water on the road is a tricky issue. If you choose to drive during heavy rain when there are flood watches and warnings, you could be seen as contributing to the accident – contributory negligence. If the flooding happens due to poor road design, you may have a claim. As always, you are responsible for your choices and actions. A court and a jury will hold you to the standard of what a reasonable person would do in your specific circumstance. And reasonable people do not often drive during flood warnings!
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