North Carolina Personal Injury Attorneys Blog

As part of a broader package of tort reforms passed by the North Carolina General Assembly in 2011, the legislature has modified North Carolina Gen. Statute § 6-21.1. The statute grants authority to a trial judge to award attorneys fees as part of costs to a prevailing plaintiff. These costs are taxed to the defendant.

Under § 6-21.1 as previously written, authority to award attorneys fees was limited to actions where the judgment finally obtained was less than $10,000. The statute did not limit the amount of attorneys fees that could be awarded. Judges were however required to make findings of fact to justify entering such an award. In the case of Washington v. Horton,132 N.C.App. 347 (1999), the North Carolina Court of Appeals set out five factors the trial court was required to use in determining whether or not to make an award. Those factors were(1) settlement offers made prior to the institution of the action; (2) offers of judgment made and whether the judgment finally obtained was more favorable than such offers; (3) whether defendant unjustly exercised superior bargaining power; (4) in the case of an unwarranted refusal by an insurance company, the context in which the dispute arose; (5) the timing of settlement offers; and (6) the amounts of the settlement offers as compared to the jury verdict. Awards of attorneys fees would only be reversed on a showing of abuse of discretion by the trial judge

The Rationale Behind § 6-21.1

Not all lawsuits tried before juries involve million-dollar claims. The vast majority of lawsuits filed across the state are filed in the District Court Divisions. These disputes involve sums less than $10,000. While the practice of law is a profession, it is also a business. Since most plaintiff's claims are handled on a contingency fee basis, whereby an attorney charges a percentage of the amount recovered, it makes little sense from the plaintiff's attorney's perspective to invest a great deal of time and effort to pursue the small claims, no matter how valid and just the cause. In addition, if plaintiffs are required to pay their attorneys out of the monies recovered, their small recovery would be even smaller. Insurance companies who are often responsible for paying these judgments, would have little incentive to negotiate and pay these claims without forcing plaintiffs to file suit. Allowing attorney's fees to be assessed as part of costs, provides an incentive for plaintiff's attorneys to handle these small cases, insurance companies to negotiate in good faith and helps preserve client's recoveries from being eaten by the cost of litigation.

"Be a Bear not a Pig"

So why did the legislature feel it necessary to change the statute? While some might argue it was simply a Republican versus Democrat fight that pits big insurance companies against trial lawyers, the answer can be found in looking at the debates on the floor of the General Assembly. Many examples were presented from across the state of cases where attorneys fees of $10,000, $14,000 and even $18,000 were being awarded by judges when verdicts amounted to only a few hundred dollars. Examples were cited of judges awarding attorneys fees when a verdict was less than what had been offered by the defendant prior to trial. While this is was permissible under prevailing case law, it certainly gave opponents of the statute legislative fodder for change.

The new § 6-21.1

I have reprinted the text of the statute below. Here are the important changes:

The amount of attorneys fees cannot exceed $10,000.

There must be a showing of and "unwarranted refusal" by the defendant to negotiate or pay the claim.

Attorneys fees may be awarded in cases where damages recovered are $20,000 or less.

The amount of damages recovered must exceed the defendants highest offer to settle no later than 90 days before the beginning of trial.

This amendment was passed to add more predictability to attorneys fees. While raising the claim size cutoff to $20,000, the statute expands the number of cases where attorneys fees could be awarded. However, by limiting attorneys fees to $10,000 and requiring findings of unwarranted refusal by the defendant to negotiate or pay, it may result in an overall net reduction in the amount of attorneys fees awarded in these small cases.

§ 6-21.1. Allowance of counsel fees as part of costs in certain cases.
(a) In any personal injury or property damage suit, or suit against an insurance company
under a policy issued by the defendant insurance company in which the insured or beneficiary
is the plaintiff, instituted in a court of record, upon findings by the court (i) that there was an
unwarranted refusal by the defendant to negotiate or pay the claim which constitutes the basis
of such suit, (ii) that the amount of damages recovered is twenty thousand dollars ($20,000) or
less, and (iii) that the amount of damages recovered exceeded the highest offer made by the
defendant no later than 90 days before the commencement of trial, the presiding judge may, in
the judge's discretion, allow a reasonable attorneys' fees to the duly licensed attorneys
representing the litigant obtaining a judgment for damages in said suit, said attorneys' fees to be
taxed as a part of the court costs. The attorneys' fees so awarded shall not exceed ten thousand
dollars ($10,000).
(b) When the presiding judge determines that an award of attorneys' fees is to be made
under this statute, the judge shall issue a written order including findings of fact detailing the
factual basis for the finding of an unwarranted refusal to negotiate or pay the claim, and setting
forth the amount of the highest offer made 90 days or more before the commencement of trial,
and the amount of damages recovered, as well as the factual basis and amount of any such
attorneys' fees to be awarded. (1959, c. 688; 1963, c. 1193; 1967, c. 927; 1969, c. 786; 1979, c.
401; 1985 (Reg. Sess., 1986), c. 976; 2011-283, s. 3.1.)

Contributory negligence is a common law doctrine that may be used as a defense against a claim of negligence. Under the doctrine of contributory negligence, if a plaintiff is at fault by any degree in causing their injuries or damages, the plaintiff is barred from recovery from the defendant. There are only five remaining states that still recognizes the doctrine of contributory negligence. They are North Carolina, Alabama, Virginia, Maryland and the District of Columbia. All are considered pure contributory negligence states, in that even the slightest degree of fault will bar a plaintiff's claim.

In contrast, some states such as South Carolina are comparative negligence states. Fault on the part of a plaintiff is not a complete bar, rather it is considered by a jury when determining the damage award. Only when a plaintiff's negligence exceeds 50% would it operate to bar the plaintiffs claim.

Unless you are fortunate enough to have a videotape of an accident, a great deal of effort is often spent trying to reconstruct the facts of a collision. Usually, despite doing the best investigation, questions remain exactly how or why a crash occurs. Answers to many of these questions will soon be available from data of contained from the "event data recorders" otherwise known as "EDT's".

EDt's are nothing new. The National Highway Traffic Safety Administration (NHTSA) estimated that about 64 percent of 2005 model passenger vehicles had the devices. By 2005, General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru, and Suzuki were all voluntarily equipping all of their vehicles with EDRs, According to NHTSA, these devices are standard equipment from manufacturers including Chevrolet, Ford, Mazda, Mitsubishi, Subaru, General Motors, Isuzu, and Suzuki. The problem has been being able to gain access, understand, and use this information. With no standardized format, proprietary software and a wide variation in the types of information that were actually recorded, their usefulness has been limited.

In August 2006, NHTSA issued an EDR rule that will apply to 2013 and later models. While the rule does not require EDR's, the rule standardizes the information that the EDT collect and will make access to that information easier. The rule sets out 15 types of information that each unit will be required to record. That information will include:

Change in forward crash speed

Maximum change in forward crash speed

Time from beginning of crash at which the maximum change in forward crash speed occurs

Speed vehicle was traveling

Percentage of engine throttle, percentage full (how far the accelerator pedal was pressed)
Whether or not brake was applied

Ignition cycle (number of power cycles applied to the EDR) at the time of the crash

Ignition cycle (number of power cycles applied to the EDR) when the EDR data were downloaded

Whether or not driver was using safety belt

Whether or not frontal airbag warning lamp was on

Driver frontal airbag deployment: time to deploy for a single stage airbag, or time to first stage deployment for a multistage airbag

Right front passenger frontal airbag deployment: time to deploy for a single stage airbag, or time to first stage deployment for a multistage airbag

Number of crash events

Time between first two crash events, if applicable

Whether or not EDR completed recording

(See link)

There are still limitations however. Some EDRs restrict data retrieval to the maker of the vehicle. In some instances, the data recorder does not survive the crash itself, in 2005, NHTSA reviewed the results of 37 crash tests in vehicles equipped with EDRs and found that the majority of EDRs didn't record the entire crash event.
Also, there are privacy concerns since the owner of the vehicle owns the data, then gaining access may be an issue. Nevertheless, NHTSA's efforts to standardize both the format and content of these devices could provide a valuable tool for those of us seeking to understand and investigate accidents.

Chances are if you've ever had to make an insurance claim it was settled without the necessity of a lawsuit. The vast majority of all insurance claims are resolved through negotiations between insurance adjusters, the claimant or their attorney. Unfortunately the number of claims that find their way into the courtroom has increased. Presumably as a result of the recent economic downturn, insurance companies are under greater pressure to reduce the amount of money paid to satisfy claims. Coupled with a trend of conservative jury verdicts in many parts of the state, insurance companies are more often willing to" roll the dice" at trial then to voluntarily pay more. The purpose of this article however, is not to analyze why claims end up in court, but rather to provide a general understanding of the procedure once a lawsuit is filed.

In North Carolina, a lawsuit filed for injuries and damages caused by the negligence of another must be brought against the tortfeasor himself. He or she becomes the defendant. Even though an insurance company may ultimately be responsible for any damage award, jurors deciding the case will not know the identity of the insurance company involved, the amount of the policy or whether the defendant is even covered by insurance.

Personal-injury lawsuits are filed in the Civil Division of the courts. Depending on the amount being sought, the claim will be filed in either District Court (where the complaint seeks the sum less than $10,000) or Superior Court (where he complaint seeks a sum greater than $10,000). The pretrial procedure that follows is different depending on whether the claim is filed in Superior Court or District Court.

Once a defendant is served with a copy of the lawsuit, they must file a pleading called an answer. In the answer, the defendant will either admit or deny each of the allegationsof the plaintiff's complaint. Additionally, any affirmative defenses, cross-claims or counterclaims should be raised by the defendant at this time.

After the plaintiff's complaint has been served and the defendant has answered, the parties will usually at this point engage in what is called discovery. Discovery allows both the plaintiff and the defendant gather information from the other party to prepare for trial. Discovery can take the form of either written questions called interrogatories or through oral examination called depositions. Either party may also request the other party to produce documents such as medical records, photographs and other materials related to the case. There are limitations as to the materials that must be produced. Any disputes over the production of materials are handled by filing a motion with the court to compel production.

Many counties require all District Court claimant's to participate in non-binding arbitration. In non-binding arbitration, an arbitrator who is appointed by the court holds a mini trial of the case. Each party has approximately 30 min. to present their case. The arbitrator will listen to testimony, review documents and render a decision. The decision of the arbitrator may be appealed by either party within 30 days. If neither side appeals the arbitrator's decision, then the decision becomes the final judgment in the matter and the case is over. If either side appeals the arbitrator's decision, then the case moves on to a full jury trial. The decision of the arbitrator is not admissible at trial.

If a suit is filed in Superior Court the procedure is slightly different. Many counties require that the parties participate in mediation. Unlike arbitration, the mediator does not decide the case. There is no evidence or testimony taken at the mediation. Instead, the mediator simply tries through negotiation to reach a settlement between the parties. If the parties are able to settle the matter, and agreement is drawn up and signed by the parties in the case is over.

Assuming that either pre-trial arbitration or mediation has failed, the case moves forward to trial. Absent a pre-emptory setting, cases appear on a trial calendar usually in the order that they were filed. Every county in North Carolina has its own procedure and local rules that apply to the calendaring of cases. Depending on the county, cases are usually reached within a year of the date that they are filed. It is not uncommon however in more rural counties where court is not held as frequently four cases to take much longer to be reached. Here is a link to the current court calendars throughout the state.

A hit-and-run accident is an accident in which one or more vehicles involved leaves the scene without notifying the police or providing identification. For the victim of a hit-and-run driver, whether or not they will be compensated for personal injuries and/or property damages depends not only on the insurance coverage available but also on the facts of the accident itself.

The first type of the hit-and-run accident involves a situation where the at fault driver collides with another motorist, but the vehicle is later identified. In this scenario, if the at-fault vehicle or driver is covered under a liability insurance policy, a liability claim can be made. If there is liability insurance on the vehicle being operated by the hit-and-run driver, it would be primary. If the vehicle itself was not covered by liability insurance, then a determination must be made as to whether the driver of the hit-and-run vehicle was covered by a liability policy of their own. Claims made under either liability insurance policy would provide for recovery of damages for personal injury, property damages as well as punitive damages. If there is no available liability coverage, then an uninsured motorist claim can be made. a claim made under uninsured motorist coverage will pay for both personal injuries and property damages.

The second type of hit and run accident involves a situation where the at-fault driver collides with another motorist and leaves the scene but cannot be identified. If there is no way to identify the at-fault vehicle or driver, then a uninsured motorist claim can be made. However,North Carolina follows the "no contact rule". As long as there is physical contact with the hit-and-run vehicle, a claim for personal injuries can be made. No claim can be made for property damages, such as damage to the vehicle. The apparent reason for this exclusion of property damage coverage is to prevent fraudulent hit-and-run claims in one car accidents where the driver is not purchased collision coverage.

Continue reading "Understanding Hit-and-Run Claims" »

When the cost to repair a motor vehicle exceeds 75% of its fair market value, a vehicle is declared a "total loss". If a vehicle is declared a total loss, the owner has the option of releasing the vehicle to the insurance carrier and receiving a payment equal to its fair market value or the owner may choose to retain the salvage. If the owner chooses to retain the salvage, the insurance carrier will deduct the salvage value of the vehicle from its fair market value when compensating the owner of the vehicle. The owner of the vehicle can request a salvage quote.

Fair market value is equal to the average retail value of the vehicle immediately prior to the collision. In determining the average retail value the insurance carrier utilizes both regional guides such as Kelly's blue book or N.A.D.A. Some companies also external valuation companies such as ADP, CCC or Mitchell. The owner of the vehicle may also request a copy of the evaluation report.

Any liens on the vehicle must be satisfied at the time of payment for the loss. Once the liens have been paid, any remaining monies are paid to the owner. In the event that the lien amount exceeds the fair market value of the vehicle, the total loss payment is made directly to the lien holder and any outstanding balance must be paid by the owner. If the owner has purchased "gap insurance" as part of the loan, then it will satisfy any outstanding balance.

The purpose of punitive damages is to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. Punitive damages are available only if a defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:
(1) Fraud.
(2) Malice.
(3) Willful or wanton conduct.
(See N.C.G.S.§ 1D 15)
N.C.G.S.§1D 15 further provides that a claimant must prove the existence of an aggravating factor by "clear and convincing" evidence. Punitive damages awarded against a defendant are limited to three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater. Any verdict for punitive damages in excess of the maximum will be reduced by the court to the maximum amount allowed by law. Furthermore, the court is required to state in a written opinion its reasons for upholding or disturbing the finding or award.

Uninsured motorist coverage or "UM" is coverage which protects you in the event you are struck by a motorist does not have liability insurance. In determining whether or not the "at fault" vehicle is covered by liability insurance, it is first necessary to look for insurance coverage on the vehicle itself. If there is no insurance on the vehicle and the at fault vehicle and the vehicle is owned by the at fault driver, then UM coverage would apply. If however, the at fault driver is not the owner of the at fault vehicle, then he or she may still be covered by the liability policy of any vehicle they own or any vehicles which they are an "insured" under the policy, such as vehicles owned by other family members in the household.

An insured seeking benefits under UM coverage has a duty to cooperate with their insurance carrier. This means that if requested, the insured must provide a recorded statement, submit, if requested, to an independent medical examination if personal injuries are alleged, as well as provide assistance in the investigation of the accident. It is generally understood that a claimant has no such obligations in dealing with a liability insurance carrier as it is an adversarial relationship. Even though the uninsured motorist carrier is" stepping into the shoes" of the nonexistent liability carrier, it receives these benefits.

What is covered under UM coverage?

Personal injuries: UM provides the same compensation that liability insurance would provide for personal injuries up to policy limits. Medical expenses, lost wages and pain and suffering are essentially the same.
Property damage: Property damages are also compensable subject to a $100 UM deductible.

Punitive damages: UM does not cover punitive damages.

Hit-and-run accidents: What compensation is available under UM coverage varies. In a hit-and-run accident were the at fault vehicle cannot be identified, UM coverage will provide compensation for personal injuries only. UM does not provide coverage for property damages in hit-and-run accidents were the at fault vehicle cannot be identified. In addition, UM coverage is subject to the" no contact rule". Simply stated, if there is no contact between the hit-and-run driver and a claimant's vehicle and the hit-and-run vehicle cannot be identified, then UM coverage would not apply.

Underinsured motorist coverage" UIM" is coverage that applies when the underlying liability coverage available to an at fault motorist is insufficient to cover the damages caused by an accident. UIM coverage is optional and is usually purchased in coverage amounts equal to the liability insurance limits. Like UM coverage, UIM coverage is a first party claim.

What is covered under UIM coverage?

Personal Injuries: UIM provides compensation for personal injuries to the extent the damages exceed the available liability coverage. Damages include compensation for medical expenses, lost wages and pain and suffering.

Punitive damages: may not be recovered if excluded by the policy.

Property damages: UIM provides compensation property damages to the extent not covered by the available liability coverage.

Police have identified the victim of a fatal crash in that occurred in Conway, South Carolina as 26-year-old Thomas Jones, of Conway. The victim of multiple trauma caused by the crash.Mr. Jones apparently ran off of US-378, struck a number of trees and overturned. Jones was not wearing his seatbelt, according to authorities.

Research conducted by the National Highway Traffic Safety Administration has found that using lap/shoulder seat belts reduce the risk of fatal
injury to front-seat passenger car occupants by 45 percent and the risk of moderate to-critical injury by 50 percent. For light-truck occupants, seat belts reduce the risk
of fatal injury by 60 percent and moderate-to-critical injury by 65 percent.

Ejection from the vehicle is one of the most injurious events. In fatal crashes in 2006, 75 percent of passenger vehicle occcupants who were totally ejected from the vehicle were killed. Seat belts are effective in preventing total ejections: only 1 percent of the occupants reported to have been using restraints were totally ejected, compared with 31 percent of the unrestrained occupants.

According to the National Highway Traffic Safety Administration,seatbelt use has steadily increased since 1994. Also, seat belt use continued to be higher in the States in which allow officers to pull over a motorist solely for not using a seatbelt. Seat belt use for occupants traveling during weekdays increased significantly from 83 percent in 2009 to 85 percent in 2010.

As of December 2005, South Carolina changed it seatbelt law to give law enforcement officers the authority to stop a driver if the officer has a clear and unobstructed view of a driver or occupant of a motor vehicle not wearing a safety belt or not secured in a child restraint system.

A woman attempting to cross Little Rock Rd. in Charlotte, North Carolina was struck by a police car at 5:00 AM on March 6, 2011.The woman reported to have been on her way to work, however she had been drinking at the time of the incident. She has been released from hospital.

Under North Carolina Law, both pedestrians and motor vehicles have responsibilities to each other in the use of the roadways. Under North Carolina Gen. Statute 20 -174, a pedestrian crossing a roadway at a point other than within an unmarked crosswalk has the duty to yield the right-of-way to all vehicles upon the roadway. However, under the same statute, a motorist has the duty to "exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway".

In addition, North Carolina follows the doctrine of contributory negligence. Essentially, if either party has contributed to their own injuries or damages, they are barred from recovery from the other party. Under the scenario outlined above,any recovery of damages would be unlikely. For additional information, see articles posted regarding sovereign immunity and contributory negligence.

A semi-truck driving southbound US Highway 221 outside of Marion crashed and flipped over, killing a passenger. David B Small, 53 of New Jersey was driving when he lost control of his vehicle and hit a rock. The truck came to rest on a runaway truck ramp and the trailer stopped against a rock wall. The accident is still under investigation by the North Carolina Highway Patrol, however it is believed that excessive speed could have been a factor. Sgt. Kevin Owens of the North Carolina Highway Patrol is also investigating whether the truck might have had faulty brakes. At the time of the accident the truck was hauling lawnmower batteries and dumped around 2000 batteries onto the road and nearby property. The name of the passenger was killed had not been released.

According to the North Carolina Department of Transportation in 2010, speeding was a contributing factor in 34%of all reportable motor vehicle crashes. In that same year 41,729 people were injured in speed related crashes and 452 people were killed. Only 2.3% of all crashes involved vehicle defects.

Three cows got free of a nearby farm and wandered onto Interstate 485 outside of Charlotte where one of them was struck by a passing motorist. The cow was killed.

While automobile collisions with livestock are not uncommon in rural areas, it is especially dangerous in metropolitan areas with busy streets.

Under North Carolina law, the owner of livestock would be liable for damages caused by escaped livestock only if the owner was negligent by failing to properly contain the animal. Commonly this is shown by examining the condition of the fences, pens or other structures used to contain the animal. In addition, any evidence that the animal had escaped on prior occasions would be important to consider.

Contributory negligence is an affirmative defense raised by a defendant to defeat a tort claim against him asserting negligence... Under this doctrine, a plaintiff whose own action or inaction has brought about or contributed to his or her own injuries will be barred from any recovery against a defendant. In North Carolina, once a plaintiff has proven the negligence of a defendant, the burden is on the defendant to prove that the plaintiff was also negligent. Even where a defendant's negligence is 99% the cause of the plaintiff's injury or damage, a finding of 1% fault on behalf of a plaintiff will operate as a complete bar to recovery. While the doctrine does not apply to claims asserting intentional tort, it is used frequently to deny plaintiff's recovery.

While most states have moved away from this archaic and often unfair doctrine, it remains the law in state of North Carolina. In liability claims, making sure that a timely investigation is conducted is critical in avoiding an erroneous denial of claims.

Continue reading "Explaining Contributory Negligence in North Carolina" »