What is “negligence”?

A short description of what negligence is from a North Carolina lawyer. I'm Sanford Thompson. I represent people who have been seriously injured or killed in accidents. Today we're going to talk about the term negligence.

“Negligence” is a legal word that refers to the failure to use the care a normal person would use. A person or business who is negligent either: (1) does something a reasonable safe person wouldn’t do (like failing to stop for a red light); or (2) fails to do something a reasonable business would do (like failing to regularly check the tires and brakes on its trucks).

Negligence is the legal standard for determining responsibility. If someone is harmed because someone else was negligent, the injured party has the legal right to be compensated for the damage done to them. It’s up to people to be careful and prevent accidents they could avoid. If they don’t use care, they are responsible to make it right.  

What’s “underwriting”?

It’s a term used to describe the process insurance companies use to evaluate and assess risks and predict how they will pay claims. It involves statistics, math and data about large numbers of similar people or businesses who have insurance claims (for example: how often hurricanes make landfall in certain areas, how long female smokers live, or how frequently married male drivers have wrecks).
 
Simply, insurance companies use underwriting to decide whether to insure a business, a driver, a house, or a life. If they chose to “write” the insurance, they underwrite to figure how much premium to charge. Premiums are calculated so  insurance companies can pay claims for accidents, deaths or whatever they insure and still make a profit.

If your lawyer understands underwriting, he can help you evaluate questions about your insurance rights and help you get the best recovery if you have a valid claim your insurer has denied.

Who pays my claim if there’s Uninsured or Underinsured Motorist insurance?

Many cars and trucks on the road have no insurance or minimal insurance. Insurance companies offer people the chance to buy a type of insurance to protect themselves and their families and guests if they are hurt in an accident caused by a driver without insurance. Policyholders who have this type insurance pay a premium for Uninsured motorist insurance which pays compensation when the driver who causes a wreck has NO liability insurance. The law in North Carolina requires all policies to have a minimum amount of this insurance, but many wise consumers buy more.

Underinsured motorist insurance pays compensation when the party who causes a wreck has too little insurance to cover the harm done.

These types of insurance are not well known or understood by many, and the rules in the insurance policies to make claims for this insurance are complicated. I have decades of experience dealing with this insurance and help my clients recover full compensation when they have paid for this protection. When insurance companies pay claims under this type insurance, it should not cause your premiums to go up!

What are “punitive damages”?

Sometimes when there is an injury or loss caused by especially reckless conduct (like drunk driving) or fraud, our system provides that compensatory damages are not enough to deter the wrongdoer from doing the same thing and hurting others. In rare cases, the responsible party may have to pay “punitive damages”. Punitive damages are meant to penalize bad behavior and let the rest of society know that reckless, dangerous conduct will not be sanctioned.

Punitive damages are not routine, and there are many limits built into the law to reserve punitive damages to punish very bad practices and conduct.

What are examples of what can be recovered as “compensatory damage”?

For a “personal injury” that’s permanent, you’re entitled to recover one lump sum for: past and future medical costs, past and future lost earnings, physical pain and mental suffering and worry, and permanent loss of function or use of your body.

For “wrongful death”, there are written laws that limit who can recover (the “beneficiaries”) and exactly what they can recover as compensation. Compensation which must be in one lump sum may include: the decedent’s pre-death medical costs caused by the accident, funeral expenses, accident-related pain the decedent suffered before death, lost earnings for support the decedent would have provided to the beneficiaries, and the relationship between the decedent and the beneficiaries (for example the loss of a parent, spouse or child).

When there are denied insurance benefits, the policyholder or policy beneficiary may recover the benefits the insurance company promised in exchange for premiums. Sometimes, an insured may be entitled to compensation for unfair business tactics an insurance company uses against its policyholders.

When there are business disputes, compensation may include lost profits or payment for damaged reputation.

What are “compensatory damages”?

“Compensatory damages” refers to money paid to compensate or replace the value of losses or injuries caused by an accident caused by someone else or a breach of a promise. The law recognizes some things can be replaced and others cannot, and the responsible party should pay for what they caused. Compensatory damages are referred to in the Old Testament; the concept is not new.
What compensation is varies depending on the injury or harm. Some things like medical bills, repair bills, lost hourly wages from a regular job, or funeral expenses can be shown to the penny. Other things like pain, diminished brain function, loss of self-employed income, lost business profits and goodwill, permanent facial scarring, or the loss of a loved one’s support and guidance are very real but difficult to evaluate. Some insurance companies and some who cause damage want to prevent people who are harmed from getting paid for harms that are not easy to put a price on, but that’s not the law.

Do juries get to know whether the person or company who caused the harm has insurance?

No.  Although insurance policies allow insurance companies to control whether to settle cases, there are laws which prevent juries from being told about the insurance available to pay claims. In fact at a trial, the jury can not even be told there is insurance.

Often insurance company lawyers use tactics to try and fool the jurors into believing individual people or businesses who have insurance will be the ones who will have to pay compensation. I know because I was an insurance defense lawyer. Insurance companies use this tactic in hopes a jury will like the defendant and hold back fair compensation. When that happens the insurance company profits, and it costs all of us because we’ll have to pay for medical care and lost income and productivity.

What’s my case worth?

You are entitled to full, fair compensation. There is no mathematical formula to figure compensation exactly, and it takes time to be sure what losses and harms have been caused. The law about what is compensation depends on the type case you have.

Those who cause injuries and their insurance companies only pay a settlement or verdict one time–there is no such thing as an open-ended result to protect the person or business that’s hurt about future, ongoing costs or harms. If you need more treatment or you can no longer do your job despite your best efforts, you don’t get a second chance.

No matter what type case my client has, I thoroughly investigate and study exactly what they have lost. When the work is done, we meet to go over the value of their case. My clients need to be confident they will get all the law allows–not a penny more, not a penny less.

Who pays my claim if there’s an accident caused by someone else?

In most cases where the harm is an injury, death, or property loss there is liability insurance which a person or business bought to pay compensation if they caused an accident.

Liability insurance companies are required by law to only sell insurance to cover real risks which will cause losses (for example, auto and truck liability insurance is to pay for damage caused by wrecks). Insurance underwriters calculate premiums that guarantee the insurance companies charge enough so they can make a profit AND pay claims.

Most liability insurance policies are contracts which give insurance companies the sole power to decide whether to settle. Unfortunately some insurance companies stall, refuse to settle, or make lowball offers so they can make larger profits.

My clients need to understand clearly whether there is insurance to pay when they’re entitled to compensation. There are laws that keep juries from being told about insurance. I am practical and do not ask juries to award money unless I have proof the responsible party has enough insurance or the business has insurance and liquid assets to pay the amount of compensation my client is seeking. 

How long will it take?

That depends on many factors. Each case is unique.
If you are injured, you should never settle before you have reached “maximum medical improvement”. If you have not gotten as well as your doctors can get you, you should not settle.

If you have a permanent injury, it’s critical to have an understanding what your future medical needs and limitations will be. In order for you to get a fair settlement and for me to present your case to an insurance company or a jury, I research your condition and meet with your main doctors and therapists to get hard evidence of the effect your injury will have on your life.

If suit is filed, there are rules to allow both sides to gather information before trial so they can assess and prepare for mediation and trial. Your lawyer needs to be skilled in knowing how to get all the information from the other side that the law allows. That can take time, and some opponents fight to keep from disclosing some evidence.

The court sets time limits and schedules all trials. The schedule for your case may depend on the county or court where it’s filed and the number of cases pending in that county or court.

I always want to move my clients’ cases as fast as possible without sacrificing the chance to best develop each case. Most cases take several months to resolve. If the insurance company for the responsible party forces you to file suit, you will probably wait 12 to 18 months before trial.

Will I have to go to court?

There’s no way to be sure, but statistics show the great majority of valid cases settle out of court. Some settlements occur before a law suit is filed, others after. There is no way to force an insurance company or corporation to offer to settle, but most try to settle valid cases.

When a settlement offer is made, it’s up to our clients to decide whether to accept a settlement. I give advice and negotiate, but my clients have the last word.

In North Carolina, all cases filed in Civil Superior Court (the top level of trial court) have a “mediation” (a formal settlement conference). I have been a trained certified mediator since 2001 and have been chosen to serve as a mediator in hundreds of cases since then. I’m sure that experience greatly helps my clients when we go to mediation.

The best way for a client to achieve settlement is have a lawyer who is ready and able to try a case. I have tried dozens of cases in many courts across North Carolina. Although I enjoy trying cases, it’s up to my clients to decide whether to accept a settlement.

What rights do I have when a life insurance company refuses to pay a death benefit?

Depending on the facts and how the death occurred, the beneficiary may have the right to enforce the policy and make the insurance company pay. Sometimes, the policy may entitle the life insurance company to deny benefits (for example, when there’s a suicide shortly after the policy was issued). If a life insurance company refuses to pay, you should ALWAYS get a legal evaluation of whether the life insurer was right.

Life insurance companies get to write their policies and choose which lives they will insure. They get to set the premiums they charge to insure lives. One thing that’s certain is that people pay life insurance premiums in order to be sure the company will pay when the insured person dies– there’s no maybe.

Life insurers have claims departments which comb over every policy and agent’s file as soon as they are told someone has died. They are not trying to pay claims, they’re looking for loopholes so they can keep the premiums and not pay. I know because I used to be hired to represent some of those companies.

What’s “wrongful death”?

It’s a term to describe the legal right to recover when someone causes an accident which results in another person’s death.

The are written laws (called “statutes”) which strictly control wrongful death claims. Those laws specify who can make such a claim and limit what can be recovered. For example, if a single person without children dies and they have parents and siblings who survive, only the parents can recover no matter how close the siblings were.

These cases involve many technical and emotional issues. Your lawyer needs to be sensitive to these.

Do you send letters to accident victims or their families?

NO! I never have and I never will. I believe people deserve the respect and decency to chose when they’re ready to talk with a lawyer.

I don’t contact them until they contact me. If I’m not available when you call, leave a message, and I’ll call back when you say it works best for you.

You or your family should call as soon as possible. I can come to meet clients if they can’t come to me, but I need to be called.

Can an injured party get his or her attorney’s fees in addition to compensation?

Unfortunately, the law does not make those who cause injuries pay the attorney fees of those who suffer injuries and losses.

Insurance companies often drag out claims to put pressure on injured people or the families who’ve lost a loved one to take less. To add to the loss, the insurance companies don’t have to pay the attorney fees.

Does a lawyer always get paid in a contingency fee case?

No. Not all claims or lawsuits for injuries, death or other losses result in a recovery, and if there is no recovery, neither the client nor the lawyer get paid.
That’s why I carefully study the facts and do research before taking a case. I want to take only cases where I believe my client will recover and I will get paid. Even then there is no guarantee, not all cases result in settlements or verdicts for the injured party.

What’s a statue of limitation?

There are laws called “statutes of limitation” which prevent people with legitimate claims from filing suit because the claims are made too late. The passing of time alone can take away your rights. The cut-off time depends on the facts and the type of claim and when the injury or damage occurs. It’s often very complicated and hard to figure out. Sadly, some folks wait too long before asking and learning their rights.
A free call can help protect you.

Will we have a written contract?

Absolutely. If you chose me as your lawyer, we’ll have a contract to spell out our agreement.
You won’t be pushed into signing a contract. You’ll be able to ask questions about the contract and what it means. It will address fees and expenses and other matters.
When we agree to enter an attorney-client relationship, you and I will both sign the contract, and we’ll both keep a copy.

What rights do I have when my insurance company won’t pay when I have a large property loss?

Few things are more devastating or disruptive than major house or business fires or casualty losses. A lifetime can be destroyed even when lives are not lost.

Insurance policies are complicated and most include several different types of coverage. Some of the insurance covers the structure of the house or business; some covers the contents and personal property; and other parts of the policy may cover lost business.

Insurance companies begin their investigation as soon as they get news of the loss. Often they are trying to figure out how to deny or limit what they pay.

Often the insurance policy gives the company rights to investigate (like taking statements or getting records) which “feel” wrong to policyholders. When policyholders refuse to cooperate with the insurance company investigation, they may enable the insurance company to deny an otherwise valid claim!

Sometimes if the insurance company denies or lowballs a claim, you will have legal rights to get paid in full. If the insurance company uses unfair financial pressure or tactics, policyholders may be entitled to compensation including recovery of their attorney fees.

How soon should I contact a lawyer?

The sooner you call after an accident, the beginning of a dispute, or denial of life insurance benefits the better.

It’s always best when I can get started quickly on your claim before the memories of witnesses fade, before the accident scene is changed, before vehicles or airplanes are repaired or disposed of, and before documents are destroyed. Federal law allows tractor-trailer trucking companies to destroy driver logs and records as soon as 6 months after a tractor trailer wreck; quick action can preserve those records.

Insurance companies and corporations start their investigations as soon as they receive notice of a wreck, fire or crash. You need your lawyer to be able to “hit the ground running” to protect you.