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from attorney Hunt Willis
If you’ve been harmed by another person’s carelessness and there is an insurance company on the other side, you have likely already been contacted to give the insurance company a recorded statement. It is usually not in your best interest to give a statement right away to an insurance company. This is because most people when hurt are not thinking about making a claim or setting up a legal case. They are thinking about the impact the injuries have had on their lives, getting better, and following their doctors’ orders. On the other hand, the insurance company is immediately thinking about legal claims and their own exposure
Many times, when a person is approached about a recorded statement, they are not prepared to answer tough questions that will no doubt be recorded to be used against them later. This is why most attorneys advise against giving a recorded statement right away to an insurance company. Other reasons may include that you are under the influence of medication and other stress factors in the immediate time after the incident. These are not good conditions to provide recorded statements to insurers, if you make a claim later.
The insurance industry is a business, but when you suffer serious injuries, you are not thinking about business, you are thinking about your livelihood and your family. This is why it is best to wait and speak to an attorney before you provide any recorded statement to an insurance company.
This is a very important question and it depends on the circumstances surrounding your injury. A person who suffers serious injuries from what the law refers to as “negligence” carries a three-year time limit. Negligence is the carelessness of another person by their failure to follow safety rules that are in place to protect the general public. This means that when you are harmed by the negligence of someone else, for example an 18-wheeler on the interstate, you have three years from the date of the incident to bring a legal claim or you are forever barred.
However, if the incident results in death, and you are bringing what is called a “wrongful death” claim on behalf of a loved one or family member for that same negligence, then your time period is limited to two years. That is, two years from the date of the death of the individual bringing the claim. Wrongful death cases are very different than ordinary negligence cases, and you should consult with an attorney if you are contemplating bringing such a case as soon as possible.
Especially when dealing with insurance carriers, it is very common for a person to resolve their own property damage claim, that is, resolving payment for your damaged automobile. You can still keep claims for injury and/or death open if you do. This is because insurance companies often or almost always keep property damage claims separate from injury claims. In fact, you might be interested to know that an insurance company in North Carolina is allowed to accept responsibility and pay for a property damage claim and still deny a person’s injury claim. Therefore, we advise all our clients to obtain a fair estimate on their property value and resolve that claim as soon as possible. It is important that your attorney reviews the documents that you sign when you resolve your property damage claim so that it does not impact your ability to bring claims for injury after your property damage is resolved.
Medical payments coverage, commonly referred to as “med pay” is a type of benefit covered by many insurance policies. While commonly seen on automobile insurance policies, med pay is also a common benefit on homeowner’s insurance, renter’s insurance, and even on policies for motorcycles and recreational vehicles. Med pay is very simple. You pay in your premiums for a benefit that extends money to you to off-set the cost of medical expenses if you suffer injury while using the insured property. For a simple auto policy, you are entitled to a certain amount of money toward your medical expenses regardless of how you were harmed.
Med pay is what we call “no-fault”, which means it does not matter how the harm occurred or whose fault it was for those benefits to apply. For example, you could hit a deer on the highway at night, a situation where nobody is at fault, and still access your med pay benefits if you were hurt. Med pay is usually a very small amount in comparison to your bodily injury coverage under the policy. Common med pay amounts are $1,000, $2,000 and $5,000. Some insurance policies will write up to $25,000 or more in medical payments coverage. One of the first questions we answer with our clients is whether they have med pay on their policies and whether we can get that med pay to help defray some of their immediate medical costs while the claims of injury or death are brought. While med pay does not cover all serious injury medical costs, it often helps defray some of the immediate costs of co-pays, deductibles, and other out of pocket expenses that come up during significant medical treatment.
This is a very important question that implicates quite a number of different issues, but generally the answer is yes, you should. Understandably, many people have a problem using their own health insurance benefits to pay for medical bills treating injuries that somebody else caused. However, nearly every single type of health plan has a right to be reimbursed in the event you recover damages for medical bills from a wrongdoer.
For example, if you are a state employee using the State Employee Health Plan of North Carolina, the law provides the state employee’s health plan with a strong right of reimbursement in the event you are able to recover damages from a wrongdoer. These rights of reimbursement become a significant factor for consideration in nearly all cases. Other health plans, such as Medicare, Medicaid and employment-based health plans also come with very strong rights of reimbursement under both state and federal law.
This is one of the first topics that a seriously injured victim should discuss with their attorney as it impacts nearly every case brought in today’s climate. Because many people don’t realize that most health insurance plans are required to be reimbursed out of any recovery, it is important to discuss how this will impact your claims.
“Damages” are really just a legal term for what a victim is entitled to get back for what a wrongdoer takes from them. In a catastrophic injury or wrongful death, we are almost always talking about money damages. This is because, as we all know, the legal system cannot “undo” a terrible incident. It can, however make a victim or victims whole through the use of money damages. Many categories of damages are “economic” in that they have a fixed dollar amount. This includes your medical expenses, damage to any property that you sustained, and other sums such as lost wages and benefits.
There is also a category of “non-economic” damages. Many people refer to this category of damages as “pain and suffering,” but really this category of damages means the impact the injuries or death have had on the victim’s life. Physical and emotional pain and suffering, permanent impairment to a body part, loss of use of a part of the body, permanent scarring and even future medical expenses or impairments that a victim has yet to suffer from but are likely to be incurred later as a result of the incident.
Damages for wrongful death are similar, but also have unique characteristics. While a wrongful death case may pursue things like medical expenses, funeral expenses, future lost wages or earnings, and even the pain and suffering of the deceased, the beneficiaries of a wrongful death claim are those loved ones left behind as set by law. Therefore, the damages in a wrongful death case are truly about the loss of relationship suffered by the loved ones who were left behind. These categories of damages can be complicated and often involve more than one victim. It is very important to discuss with your attorney how the law in North Carolina treats claims for wrongful death as most categories of damages in these cases are set by statute and subject to specific legal requirements.
The question “what is my claim worth” is a natural one, as most victims want to know what the law allows when it comes to compensation. The answer however can be complicated and often depends on the type of claim that you have and the specific details of your case. In general, most people understand that in a catastrophic injury or death case, a victim is entitled to compensation that includes economic losses like medical expenses, the loss of wages or the ability to earn wages, and even future losses yet to be incurred, like the need for future medical treatment or surgery, medical devices like prosthetic limbs or home nursing care. But the most important element in a serious injury or death is not medical bills or lost income, it’s the effect the injury has had on your life.
In a death case, it is the value of the loss of relationship between the victim and the loved ones they leave behind. Because that loss is not defined anywhere as a certain number, we ask juries to decide based on the evidence how much money compensation is this harm worth? Unfortunately, before you ever reach a jury, an insurance company has probably used an arbitrary and rigid mathematical formula to try and calculate that loss. Jurors however understand much better what the cost of human life is and what the cost of human suffering is.
Remember, especially in cases of wrongful death, the question is not “how much money is this life worth.” The question is what is the value of the loss of this relationship to the loved ones left behind. Obviously, there is no amount of money that could be spent to bring somebody back. But there is an amount of money that recognizes the loss of those left behind, and that sends a message to the wrong doer that that conduct will not be tolerated in the community. These are the sorts of conversations you should have with your attorney when discussing the value of any potential claim.
Unfortunately, in the current climate in the state of North Carolina when it comes to civil claims brought by victims, lawsuits are a very real possibility. This is partly due to a series of anti-victim laws that were passed by the North Carolina legislature in 2011 that work to put victims and their families at a distinct disadvantage when it come to bringing claims. In fact, North Carolina has laws so harsh that the vast majority of states in the United States have either overturned them or refused to pass such laws. Because of our unique legal situation here in North Carolina, it is a possibility that your claim will not settle, and you will need to file a lawsuit.
This is an important conversation that you will have with your attorney. That is not to say that the majority of cases are likely to resolve without a lawsuit. And even those cases that do require a lawsuit don’t always go to trial and are able to be resolved between the parties during litigation. And while certainly nobody wants to go through a lawsuit, often that is the only way for a victim to be fully compensated and made whole. As we discussed earlier, a lawsuit is truly the only legal mechanism for a victim to hold a rule breaker accountable and allow him or her to present their case to a jury of their community so that the conduct that caused such harm won’t happen again. If juries don’t enforce safety rules by holding rule breakers accountable, then the community is at greater risk of harm than it was if the case had never been brought.
Bringing legal cases can be expensive, especially serious injury and death cases. Even if your case does not require a lawsuit, it may still be necessary in pre-lawsuit negotiations to engage experts such as professional engineers, accident reconstructionists, or even videographers to reproduce presentations that show wrong doers or their insurance companies what kind of impact the injury or death has had in his or her daily life. At Martin & Jones, we work on a contingency fee basis and all those costs are advanced to our clients so that they are not billed for out of pocket expenses during the case. If there is a recovery, the client reimburses the firm at the end of the case.
This is also an important topic when deciding what law firm to select. You should ask yourself before choosing a law firm: Does this law firm have the resources to take on the necessary expenses that my case requires? In significant cases, this is not just about hiring accident reconstructionists, engineers, or investigators to talk about the incident or reconstruct the incident. This might also mean other types of experts in the healthcare industry, such as life care planners who diligently document all of the future needs that a serious injury will require, like home healthcare, future medical treatment and prescription medical treatment, and other necessities.
In significant cases, the rules of North Carolina State and Federal Courts all require these types of experts to provide special testimony so that a plaintiff can prove their need for future damages. This is incredibly important in cases of permanent injury or death, because a legal case can only be brought once. Once the case is resolved, there is no going back a second time if a victim realizes they were not compensated enough for what the future brings. The law firm you select should be fully aware of not merely what you as the victim have gone through, but what you are more than likely to suffer in the future as a result of the incident.
This can be one of the more important decisions that a client is forced to make. Obviously, many more cases settle than will ever reach the court house for jury trial. But that alone should not be the reason to settle any case. Only lawyers who regularly take cases to trial are in a good position to advise their client on this topic.
Another serious question you should ask any attorney you are consulting with is “how many cases like mine have you taken to trial?” Your attorney should be able to tell you all of the risks associated with the specific facts of your case in the decision to go to trial or not. But an important observation for you to make is whether your attorney will prepare your case for trial from day one.
At our law firm, we prepare every single case for trial beginning on day one. Many cases obviously settle, some go to trial. But the decision to prepare a case for trial should have happened long before the decision to actually go to trial or settle. There is no such thing as a guaranteed outcome at a trial for the shear fact that no one can ever predict what 12 strangers from your community will unanimously decide to do with a case. But a case that is prepared for trial from day one is in a much better position to present a jury with the reasons for fully compensating a victim for their harms and losses than a case that decided to go to trial at the last minute. This is because it takes significant time and effort to prepare all of the necessary facts the jury will need in order to hold the rule breaker accountable.
Juries will always say that they want to reach the right result and do the right thing for the people in the court room. But if they are not properly provided the information, facts and materials in order to hold the rule breaker accountable, then the victim can be at risk. Again, this is why even if you never plan to go to trial in your case, you should always ask the lawyers you consult with about their trial experience.