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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!

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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

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.

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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

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.

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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.

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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.
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