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Understanding the Personal Injury Lawsuit

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.