Articles Posted in Insurance Law

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By :Douglas A. Petho

If you speak to any attorney in North Carolina who handles  personal injury claims  they will tell you that settling claims with liability insurance companies has become much more difficult than in years past.  There are a variety of reasons why insurance companies are becoming more unreasonable and offering less to settle claims. As a result,  more claimants are being forced into litigation to seek fair compensation. There are a number of reasons for this trend.

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By :Douglas A. Petho

Medical payments coverage or “med pay” as it is often referred to, is an optional form of insurance that may be purchased in connection with an automobile liability insurance policy. Under this coverage, the insurer agrees to pay all reasonable expenses incurred for necessary medical and funeral services because of bodily injury caused by accident and sustained by an insured.

Expenses are considered “reasonable” only if they are consistent with the usual fees charged by the majority of a similar medical provider in the geographical area in which the expenses were incurred.

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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.

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By :Douglas A. Petho

Effective October 1, 2011 and applying to all actions occurring after that date, Rule 414 the North Carolina Evidence Code limits evidence offered to prove past medical expenses to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of the payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. this rule represents a dramatic change for both plaintiffs in personal injury attorneys not only in presenting cases at trial but also in negotiating settlements.

To understand this change is necessary to first understand the law as it existed prior to October 1, 2011. Under North Carolina’s “Collateral Source Rule”, evidence of payments made by health insurance, Medicare or Medicaid were not admissible in trial and were not to be considered by a jury in determining damages for medical expenses. The rationale being that these collateral payments for which the plaintiff often paid the premiums to receive the benefit, should not operate to reduce the liability of the defendant for the plaintiff’s medical bills. Under this scenario a plaintiff would be allowed to reap the rewards having their own insurance.

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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?

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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.

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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

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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.

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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.

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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.