Articles Posted in Personal Injury

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Alabama consumers who have been injured in a car wreck or a truck wreck often assume, quite naturally, that the jury will know that the defendant who caused the wreck and caused the injuries has insurance through State Farm, AllState, etc. The jury, after all, knows that the injured victim has health insurance such as Blue Cross but it is quite surprising to find out that the jury can never know that the defendant has insurance.

The reason that is always given for this rule is that a jury might decide against the defendant, not based on the facts but on whether the defendant has insurance, figuring “Well, here she has insurance, so it won’t really hurt them if we give a verdict.” We have never met anybody with this actual mindset as everybody understands if you award money when the plaintiff is not entitled to it, then that can have a bad impact upon the system and insurance rates. But what happens is since the jury does not know about the insurance, they look at somebody and oftentimes they will take the opposite approach of assuming that the person cannot pay and therefore they do not find against the defendant even if the defendant is at fault.

Trial judges do not have any discretion in this matter and until the law is changed, this is the way it will be. If you have been in a automobile accident or in a truck wreck or otherwise suffered a personal injury, particularly if it is due to the negligence of an individual, then you do need to keep this in mind as you are evaluating potential settlement offers.

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Mandatory arbitration is a growing problem in Alabama and this recent Wall Street Journal article discusses how it is becoming more common in Nursing Home contracts to require the family to sign an arbitration agreement. Please read this entire article but here is the heart of the argument:

Nursing homes have been among the biggest converts to the practice since a wave of big jury awards in the late 1990s. Attorneys litigating nursing-home cases on both sides say arbitration has quickly become the rule rather than the exception. Critics say the binding agreements are determining the outcome of high-stakes cases of vulnerable patients that should instead be handled by the courts. Too often, they say, people don’t understand whether the clauses are mandatory, or that they are signing away their rights to sue. “It is an unfair practice given the unequal bargaining position between someone desperate to find a place for their loved ones and a large corporate entity like a nursing home,” said Sen. Mel Martinez, a Florida Republican who introduced legislation along with Democratic Sen. Herb Kohl of Wisconsin.

‘IT SOUNDS SO GOOD FOR THE CUSTOMER’

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We often receive calls from potential clients who have fallen and been injured while on someone else’s property wanting to know if they have a legal claim against the owner of the property. Like many other issues in the law, the answer isn’t always clear cut.

Under Alabama law, it is not always clear whether you can hold the property owner liable. First, the standard to which the property owner will be held depends on why you were on the property. Were you there as a guest or invitee of the owner? Were you trespassing? Or, were you there for your own benefit? The property owner is held to a higher standard for someone he or she invites to the property versus someone who does not have permission to be on the property.

Owners do not owe an absolute duty to prevent someone from being injured on their property. The law simply requires that they act reasonably, prevent or cure a know danger, such as a spill in a grocery store or to warn customers or other individuals on the owner’s property if there is a dangerous situation of which the owner is aware.

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You’ve been in a car wreck in Alabama, you still hurt and are recovering, and now you start getting calls from the insurance adjuster for the person that hit you. What should you do?

There is nothing necessarily wrong with talking with the insurance adjuster. They are usually very nice to you, which is obviously in their best interest. Their goal is to settle the claim for what they call a “reasonable amount” or to “reasonably compensate you for your injuries.” The problem is that our experience here in Birmingham and through out the state of Alabama is that insurance companies often have a far different idea of what is fair or reasonable compensation for your personal injuries than you do or than your lawyer will.

Inevitably, the adjuster will want to take a statement from you “just to document their file.” We are usually reluctant to let them take a recorded statement of our clients. If it is truly just to document the file, then they shouldn’t have a problem letting you take a recorded statement of their insured for their file. We have never had one take us up on this request.

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In Alabama, like most other states, Insurance companies are required by law to offer uninsured or underinsured (also known as UM/UIM) motorists coverage. You will only not have this coverage if you opt out of it. Unfortunately, many people opt out of this coverage and don’t even know it.

First of all, what is UM or UIM insurance? This is insurance coverage that will pay if you are hit by another driver who doesn’t have insurance or where they don’t have enough insurance to cover your injuries. You must first exhaust the other person’s insurance before you can tap into your own insurance. The cost to have this type coverage is only a few dollars a month for a minimal policy of $20,000 or $25,000.

Why would someone opt out if this coverage? Most people opt out of this type coverage without even knowing they are doing so. In order to do so, you must expressly in writing agree to that you are waiving UM/UIM coverage in your policy. Typically, we see clients who, when buying auto insurance, told their agent that they wanted to cheapest policy available, not knowing that this would opt then out of this important insurance. While some good agents will explain UM/UIM coverage and why they wouldn’t want to waive it, many do not. The person buying insurance is given a stack of papers to sign without explanation and many don’t read through what they are signing. (To be honest, I don’t know many lawyers who read all of what they are signing. The papers are very complex, single spaced, and in small print. And, if you want to purchase an insurance policy you’ll have to sign.)

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Yesterday the United States Supreme Court ruled against an injured man and in favor of a medical device manufacture in an 8-1 ruling. The basis of the ruling was that the Food & Drug Administration (FDA) had approved the device so that consumers are not allowed to sue under state law claiming that the device was defective or that the warning was inadequate.

The excellent Washington Post article by Robert Barnes summarizes the case:

The court ruled 8 to 1 against the estate of a New York man who was seriously injured when a balloon catheter manufactured by Medtronic burst during an angioplasty in 1996. Charles Riegel, who died three years ago, and his wife sued under New York law, alleging that the device’s design was faulty and its labeling deficient.

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A shockingly high number of Alabama citizens are killed in train collisions every year. Most of us here in Alabama experience train crossings at least periodically. Why do collisions happen and what are the legal issues?

We represented a surviving family member in a train case and the train lawyer demanded to know in the deposition whether the train had come off the tracks and hit the car. Or did the car pull out in front of the train. The answer was the car pulled out in the path of the train. The lawyer sat back with a smug grin as if he had discovered the theory of relativity before Einstein.

There is a lot of PR out there by the train industry saying that if you pull out in front of a train its because you were “racing” the train. This is just plain wrong. Now, some do try to beat the train or ignore the stop signs or are drunk but not everyone who pulls out in front of a train.

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Many car wreck cases can be settled without having to file a lawsuit. Insurance companies have whole divisions of workers set up to process and resolve car wreck claims. Though you are trying to get as much money as you can for your claim, and they are trying to pay you as little as they can, you both typically have the same goal, resolving your claim without a lawsuit. For both sides, lawsuits bring added expense, added time and added uncertainty.

An insurance company looks at three main things in deciding whether to settle a claim.

– First, was their insured at fault? Even if they decide the first one in your favor, they will then look at the second issue.

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After most all wrecks, assuming there aren’t obvious or catastrophic injuries, most times, both parties get out of their cars, look at the damage and ask the other person if they are OK. And, most people answer “Yes, I’m fine’ without even thinking about it. It is akin to someone you see on the street asking how you are doing. Out of habit you answer, “I’m doing fine” or “I’m doing well, how are you.” You may have a whole host of issues going on, but don’t let on.

Most everyone who has been in a wreck is shaken up pretty good. They are scared and have a lot of adrenaline running through them. Even if they are in pain, most are not feeling it at that time. Oftentimes, it is not until that night or the next day that your neck or back does not start to hurt.

If you have been in a car wreck, it has been our experience that you should be checked out by a doctor immediately. Rather than diagnose yourself, or let the person who hit you diagnose whether or not you are injured, you should let a doctor do that. You should get yourself to a doctor immediately.

After seeing a doctor, you should follow his or her recommendations to the letter. That means, going to tall follow up visits, taking the recommended medications, doing any and all prescribed physical therapy.

Additionally, you should be as honest with your doctor as you can. A lot of my male clients will tell me about the pain they were in after the wreck only after much prying. But when I read the medical records, there is little mention of pain. They later tell me that they didn’t want to appear to be weak or whiners or that they’d learned to deal with pain and didn’t want to appear to be complaining too much. This only hurts their ability later on to be compensated for the pain and suffering they endured as a result of the wreck.

Some of our clients have found it helpful to keep a journal of their treatment and injuries. Understand, however, if you do this that it may be discoverable by the defendant. Therefore, we only recommend doing it if you will do it consistently, that is every day or virtually every day over the course of your treatment, and only write down things you wouldn’t later mind being read to a jury. The best way to assure that you do this is to only write down the truthful facts about what you are experiencing, not your opinions, of your experiences, your treatment, doctors or dealings with the person who hit you or the insurance adjuster. This should include your treatment, your pain, and your limitations as a result of the pain.
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Car wrecks or automobile accidents are one of those unfortunate parts of life that we all hope we’ll never experience. However, chances are that just about every Alabama driver will be in a wreck at one time or another, whether it is our fault or the fault of another. Often times, people are not significantly injured in wrecks. However, there are some wrecks that result in someone being injured.

If you were injured and the wreck was someone else’s fault, you may have a claim against that person. Every car wreck case hinges on two issues.

– The first is liability (Can you prove that the wreck was the fault of the person who hit you?)

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