North Carolina Personal Injury Attorneys Blog

By :Douglas A. Petho

Traumatic brain injury (TBI) is a serious public health problem. Each year, traumatic brain injuries contribute to a substantial number of deaths and cases of permanent disability. Despite being often overlooked or undiagnosed, on average, approximately 1.7 million people are diagnosed as suffering a traumatic brain injury each year.

At Price, Smith, Hargett, Petho and Anderson, we have the knowledge and experience to help those who are suffering from the physical, emotional and financial burdens imposed on victims of brain injuries and their families. Since 1979, we've been helping fellow North Carolinians recover compensation for the pain and suffering, medical bills, lost wages, future medical care associated with brain injuries. Call 1-800-737-2160 to discuss your case. As always, consultation is free.

By :Douglas A. Petho

Medical payments coverage is optional coverage which provides certain protection to insureds under a policy who are injured in an automobile accident. It is designed to provide reimbursement of medical expenses up to the policy limits purchased. Common coverage amounts can be as little as $500 and as much as $1 million.

Unlike a liability claim for negligence, medical payments coverage does not require a finding of fault or negligence on the part of a particular driver.

Medical payments coverage provides protection to insureds which are defined as "you or any family member" while occupying a motor vehicle or as a pedestrian struck by a motor vehicle. It also provides medical reimbursement to non-family members who occupying the motor vehicle insured in the policy or other motor vehicles operated by family members of the insured purchasing the policy.

Medical payments coverage can be collected in addition to any payments made under any liability coverage that may be available. There are a few exceptions. First, be if the insured is a passenger in an "at fault" vehicle whose medical payments coverage applies, the liability carrier would get a credit for medical payments coverage toward any money paid under the vehicles liability coverage. Second, if and uninsured motorist claim is being made by an insured, the uninsured motorist claim is credited to the extent any medical payments coverage been paid.

It is possible to stack medical payments coverage as well. Stacking refers to collecting under multiple policies of insurance. In the context of medical payments coverage, if medical bills exceed the amount of the coverage of the occupied vehicle, and excess medical payments coverage can be made against any medical payments policy which party is insured with. For example, if the injured party is a passenger in a non-owned vehicle, after exhausting the medical payments coverage on that vehicle, the injured passenger may pursue a medical payments claim against any vehicles which he or she owns or owned by any family members in the household in which the passengers related to by blood or marriage.

Properly identifying all coverage that may be available to an injured party can be complex. Before attempting to resolve any claim is important to make sure that all available insurance has been located. We at the Charlotte law firm of Price, Smith, Hargett, Petho and Anderson have been helping people with claims since 1979. Call for a free consultation.

By :Douglas A. Petho
Everyone knows what to do when involved in an automobile accident right? You are supposed to immediately call the police, determine whether anyone was injured, get contact information from any eyewitnesses, etc. But there some things that are just important not to do following an accident. Here are a few of the most common mistakes people make that may get them into trouble down the road.

Do not give a recorded statement to an insurance company unless you have a legal obligation to do so!
When a claim is reported to the liability insurance company and adjuster is assigned to investigate the claim. One of the first things and adjuster will want to do is to get recorded statements from the drivers involved. While a insured has a obligation to provide a statement to their own insurance company and assist in the investigation, there is no such duty to cooperate with a liability insurance company for the other party. Many people assume that since they are making a claim, it is necessary to give a statement to a liability adjuster and if the accident is "clearly not their fault" giving a statement will expedite the handling of their claim. The problem is there may be two or more versions of how accident occurred.
In North Carolina the doctrine of contributory negligence provides that if any party is negligent in any degree in bringing about their own injuries they are completely barred from recovery from the other party. Insurance adjusters know this and will look for any evidence negligence on the part of the claimant to deny the claim. The best way to do this is by using the claimant's own words in their recorded statement. Many people are poor judges of time and distance when it comes to automobile accidents. People say minutes when they mean seconds and feet when they mean yards. years I have seen These types of "verbal missteps" cost people their claims time and time again.

If some type of statement is absolutely necessary to move the claim forward, then a written statement is the best option. Written questions can be prepared by the insurance adjuster investigating the claim and answered after careful consideration by the claimant. In the alternative, the claimant can provide a brief narrative of how the accident occurred.

Don't refuse to provide health insurance information to your medical providers!
Anyone who has been admitted to a hospital knows that one of the first items of business is determining who will be responsible for the bill. Some people believe that because they are involved in an accident that their medical provider should not utilize their health insurance. While it is true that a liability insurance company may ultimately be liable for any medical expenses, even the most straightforward claims take time. A liability claim should generally not be settled prior to the claimant receiving all the treatment they need. Most medical providers will not wait till a claim is resolved to get paid and will put any outstanding bills into collections. While recent changes in North Carolina law allow the liability insurance company to take credit for any discounts or write offs provided to a claimant by their own health insurance, I believe the better practice is to file all medical bills with health insurance to avoid collections.

Never sign a scheduled release! EVER!
A scheduled release is a release that is offered to a claimant very early, within days sometimes,of a claim. It offers the claimant in a small sum of money upfront along with a promise by the liability insurance company to pay reasonable and necessary medical bills up to a certain limit for certain time following an accident. A few insurance companies over the years have made it their mission to get these releases signed within the first 48 hours of an accident. I know of a few instances they have been offered to clients while still in the hospital.

The reason these scheduled releases are such a bad idea is that shortly after an accident the claimant may not know the full extent their injuries. MRIs, CT scans and other diagnostic tests are often delayed by medical providers until it is determined they are necessary when their patients do not improve over time. Arbitrarily capping the amount of medical expenses that the insurance carrier could be liable only benefits the insurance company. In addition, the scheduled release usually agrees only to pay "reasonable and necessary" medical expenses incurred after an accident. I put the words reasonable and necessary and quotations because what is reasonable and what is necessary is often a matter of dispute between claimants and insurance companies. By signing a scheduled release in advance, the only compensation in dispute would be is what is reasonable and necessary medical care. It will be nearly impossible to find an attorney file a case on a contingency fee where the only dispute is the amount of proper medical bills. By signing the release you have eliminated the possibility of receiving compensation for additional pain and suffering, lost wages or other damages if they become due.

Don't just exchange information and leave the scene!
This is my favorite mistake. We all want to believe that everyone is honest and will do the right thing. Perhaps because we only get the phone calls from the people who had the bad experiences that this is included on the list. But there are plenty of reasons to call the police and report the accident. Once you have driven away from the scene of an accident with only a piece of paper and name phone number and insurance company policy number a variety of bad things can happen. Here is a compilation of the things I've heard: wrong name, bad phone number, insurance canceled, "I've thought about it in the accident isn't my fault", "the driver didn't have permission to drive my car","go to my body shop and they'll fix it and send me the bill and I'll pay it", "I wasn't hurt so how could you be?" Bottom line, if you believe the other driver is responsible for either injury or damage to your vehicle, call the police.

By :Douglas A. Petho

By :Douglas A. Petho

Most people don't look for a lawyer until they need a lawyer. Unexpected events such as automobile accidents, on-the-job accidents or other injuries lead many people to seek out the best attorney they can find to represent them. Although there is no shortage of attorneys, figuring out who to hire can be a challenge. Television advertisements and junk mail solicitations are certainly one way to decide. A better method would be to evaluate the qualifications of the attorney you are considering before signing any paperwork.

#1 How long have you been licensed to practice law?
Length of time an attorney has been practicing does not always translate to a higher level of skill. However, the longer an attorney has been in practice, the greater likelihood they will have the knowledge necessary to handle your case.

#2 Have you ever handled a case like this one before?
There is no requirement that an attorney have any prior experience in a particular matter in order to hold himself out as a "personal injury attorney" or "workers compensation attorney". The North Carolina State Bar does offer certifications in certain areas, such as workers compensation, allowing an attorney to advertise that he or she "specializes" in a particular area. However, specialization is not required in order to practice in these areas.

#3 How many cases like this have you litigated?
Let's face it, a major advantage in hiring an attorney is having the ability to litigate a claim, if it cannot be settled. If an attorney has no litigation experience, you may find yourself at a disadvantage later in the case. An attorney with a weak trial record may be reluctant to file suit when necessary and may recommend settlement of matters that should be pursued through the courts.

#4 Will you be available to speak with me personally?
When former clients are surveyed about their satisfaction with their attorneys, the most frequent complaint raised is their inability to speak with their attorney. Get a commitment from the attorney that they will be available to speak with you about any questions or concerns during the course of your representation.

#5 What are your fees and will I be responsible for any costs?
This seems like an obvious question to ask but you want to avoid any surprises. Most fee agreements are pretty straightforward. An attorney may work on a contingency fee, in which the attorney's fee is contingent upon recovery in the case. However, normally these contingency contracts provide that the client is responsible for certain costs in addition. These costs can include litigation filing fees, medical records copy fees etc.These costs can be advanced by the attorney, but the client may ultimately be required to pay these out of any settlement or judgment.

Finally, do your research. Once you have decided to hire an attorney, look them up on the internet. The North Carolina State Bar maintains a search engine that allows anyone to look up an attorney for any disciplinary actions taken against them by the Bar. In addition, there are a number of websites, such as lawyers.com, that allow the user to search by practice area and geographic area for an attorney. These websites also provide both client and peer reviews from other attorneys that may be useful.

For more information, please visit our website at www.priceattorneys.com

By :Douglas A. Petho

North Carolina Gen. Statute 90-21.19, effective October 1, 2011 and applying to causes of action arising after that date, limits "noneconomic damages" in medical malpractice cases to $500,000. The statute further provides that neither the attorneys nor any party or witness shall inform the jury or potential members of the jury panel of the limits.

Section 90 - 21.19B directs that in any malpractice action, any verdict or damage award of damages, shall indicate specifically what amount, if any, is awarded for non-economic damages.

There are exceptions contained in the statute. If the plaintiff suffered disfigurement, loss of use of a body part, permanent injury or death, the limits do not apply. Also, if the defendant acts in reckless disregard of the rights of others, is grossly negligent, fraudulent or acted with intent or malice, the limits do not apply.

Every three years the $500,000 is adjusted for inflation.

By :Douglas A. Petho

After an accident, a rental car may be provided in one of two ways. First, once a liability insurance carrier for an at fault driver has accepted liability, they are responsible for paying the cost of a rental vehicle from the date of the accident. The length of time, however, depends on whether the vehicle is declared a total loss or is repairable. If the vehicle is a total loss, once they have extended an offer for the value of the vehicle, their liability will end. Most insurance carriers will extend payment for a rental vehicle for two or three days to allow for payment to be received. If the vehicle is repairable, the liability insurance carrier is responsible for paying for alternative transportation until the repairs are complete.

If the liability insurance carrier for the at fault driver has not accepted liability, a driver may still be able to obtain a rental under their own automobile insurance. Rental reimbursement is often sold in connection with the collision coverage. Many carriers require however, that in order to obtain a rental under rental reimbursement that a collision claim must be made. The same time frames apply to a rental under rental reimbursement that apply to a rental provided under liability insurance.

It is important to note that while liability insurance and rental reimbursement coverage both provide for a rental vehicle, there are limitations. Optional insurances such as collision deductible waiver and incidental damage waivers offered by rental car companies are not covered. Also, if the individual renting the vehicle does not have collision coverage on their own vehicle, it will be necessary to purchase collision coverage at a daily rate to cover the rental car. This is not covered by liability insurance.

Finally, if a rental replacement vehicle is not requested, an individual may still be entitled to compensation for the loss of use of their vehicle. Loss of use, is calculated based on what a replacement vehicle would have cost during the time the individual would have been entitled to a replacement. This claim is most appropriately made when dealing with vehicles that are not primary means of transportation, such as recreational vehicles.

By :Douglas A. Petho

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.)

By :Douglas A. Petho

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.

By :Douglas A. Petho

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.

By :Douglas A. Petho

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.

By :Douglas A. Petho

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" »

By :Douglas A. Petho

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.

By :Douglas A. Petho

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.

By: Douglas A. Petho

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 neither personal injury or property damage will be covered.

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.