Personal Injury
What is a personal injury claim?
A personal injury claim arises when someone acts in a negligent manner to cause bodily injury to another person. This negligence is referred to as a “tort,” which is defined as a civil wrong. This should not be confused with a crime. The civil court system runs parallel to the criminal court system. A negligent act can result in both a crime and a personal injury claim. Someone can be found “liable” for a personal injury claim. They are “guilty” of crime.
For instance, if a drunk driver ran a stop sign and hit your car, you would have a personal injury claim against the drunk driver for your medical bills, lost wages, and pain and suffering. You would make a claim against the driver’s auto insurance company for this money. The State would also bring criminal charges against the drunk driver for the crimes of drunk driving and running the stop sign. The criminal case would be brought by the district attorney. The criminal case is not YOUR case—it is the State’s case against the driver (who is referred to as the defendant.) The district attorney makes all of the decisions as to whether to offer a plea or go to trial. You would be a witness in the criminal action. However, the personal injury is YOUR case against the defendant. You would be the “plaintiff” and would be suing the driver and his insurance company in your own capacity. You would make the decision whether to settle or go to trial.
There are two parts to a personal injury lawsuit: 1) liability and 2) damages. Liability means that there is fault for the accident in a party other than the injured person. You have to prove fault in another party before you can even discuss recovering damages. So, you can have significant injuries, but if the opposing party is not at fault, or “liable” for the accident, then you will not be able to recover for those injuries.
Another hurdle in North Carolina is the defense of “contributory negligence.” Contributory negligence arises when you contribute to your injury, however slight. It is a complete defense against the other party’s liability in a personal injury claim. The law says that if you are 1% at fault for the accident, then you get $0—even if the other person was 99% negligent. For instance, if you are a pedestrian crossing in a crosswalk against a Do Not Walk sign and you are struck by a speeding car, then you are contributorily negligent as a matter of law and might not recover for your injuries—even if crossing against the light was only a minor reason for the accident and the speeding car was the main reason for the accident. This system is inherently unfair and makes the injured person an insurer of someone else’s negligence even if they were only minimally at fault. Only five states in the country use this system.
We are working with our legislature this session to convert to a “comparative negligence” state—meaning that your total damages are just reduced by the amount of your fault, as long as your fault was less than 50%. However, the insurance industry is spending a lot of money to keep the system the way it is. The system only benefits the insurance industry. So, it’s important to note that not all accidents result in a recovery. A lawyer can be a big help in explaining these various requirements and defenses.
What is the process to file a personal injury lawsuit?
There are two types of claims—those that are accepted and those that are denied. We assist with both types of cases. In accepted cases, we monitor the medical progress to make sure the client is getting the proper treatment. At the end of the treatment period, we negotiate a settlement to the claim and handle all liens. If the insurance company does not offer enough money to resolve the claim, then we file a personal injury lawsuit.
In a personal injury lawsuit, we would draft a document called a “complaint.” It currently costs $110 to file a complaint with the court system. The complaint is accompanied by a “summons” which is a legal notification to the defendant that you are suing them. We have 45 days to obtain “service” of the complaint and summons on the defendant. Typically, the sheriff’s office will deliver the papers or they can be served by certified mail. The person being sued would turn over the complaint and summons to their insurance carrier who would hire a lawyer for them. All insurance policies provide for a lawyer at the insurance company’s selection if you are sued for a claim that is covered by the policy.
The defendant through his lawyer has 30 days from the date of service to file an “answer” to the complaint. The parties then engage in the “discovery” process—meaning an exchange of documents and information. Every person involved in the accident will be subject to a “deposition” which is a series of questions asked by the opposing lawyer to the witness. These questions are asked before a court reporter and are answered under oath. It is a pre-cursor to trial. The answers to these questions can be used at trial by either party. Discovery and depositions are used by the parties to evaluate the claim and prepare for “mediation,” which is a court ordered settlement conference. It is held before a neutral certified mediator. A mediator is a lawyer who has undergone special training to assist parties in resolving their claims. The mediator is a facilitator of the settlement negotiations, but the mediator does not make any legal decisions. If the parties cannot settle the claim at mediation, then it goes to trial. It typically takes about a year to 18 months to get to trial after the complaint has been filed.
Many people have never called a lawyer before, what should they expect when they call your office?
When people call my office, they first speak with one of my paralegals who takes preliminary information and determines what kind of case they have. If we can help them, then I will make an appointment for them to come to my office to discuss their claim in more detail. I do all of my work on a contingency basis—meaning that my fee is a percentage of the final result or settlement. There are no consultation fees or retainers. I ask clients to bring all paperwork from their medical providers, pay stubs, accident reports, insurance policies, and any communication with the insurance company to the initial consultation so we can get started on the claim. My paralegals are bilingual so we can also handle claims by brought by Spanish speaking individuals.
People have accidents every day, what separates a simple accident from one where a person should seek your firm’s assistance?
Someone should definitely seek assistance when they have catastrophic injuries, even if there is clear liability. They should also seek assistance when liability is contested-meaning the other person denies doing anything wrong or if the insurance company is asserting the defense of contributory negligence. Sometimes people hire us just to be put at ease that their claim is being handled correctly. They either do not have the time to handle it on their own, or they just want the peace of mind knowing that they are not going to sign anything or agree to anything that is not in their best interests.
What sorts of damages are covered under personal injury law?
In a civil case, there are typically three types of compensatory damages 1) medical expenses; 2) lost wages and loss of future earning capacity; and 3) pain and suffering. Medical bills and lost wages are referred to as “special damages”-meaning they can be quantified. “Pain and suffering” is an element of damages that is purely in the hands of the jury. It means how a reasonable jury would quantify the physical pain and mental anguish suffered as a result of the accident. Punitive damages may be awarded in certain circumstances if the conduct of the defendant is egregious enough to warrant them.
Do you offer free initial consultations?
Yes