November 29, 2014

Graciano v. Mercury General Corp. - Elements of Bad Faith Insurance Claim

Car accident victims, particularly those who have suffered debilitating injuries or survivors of a wrongful death, should never agree to negotiate directly with an insurance company. The reason is it is standard practice for these firms to low-ball claimants, when they don't outright deny legitimate claims.
In some instances, there may be opportunity for plaintiff to obtain compensation in an amount higher than policy limits. This is particularly true if there is a successful assertion of a bad faith on the part of the insurer.

Some examples of bad faith actions by auto insurers include:

  • An insurer delays, discounts or denies payment of legitimate claim without reasonable basis for the delay, reduction or denial.

  • Failure to acknowledge or reply promptly upon notification of a covered claim.

  • Failure to pay a covered claim due to failure to initiate a proper, prompt and thorough investigation as to reasonable liability based on available information.

  • Failure to affirm or deny coverage within a reasonable time frame.

  • Failure to offer or attempt to offer prompt, reasonable and fair evaluation of damages and equitable settlements in an appropriate time frame where liability is reasonably clear.

  • Insurer tries to settle for less than the amount to which a reasonable person would know they are entitled, requiring insured/injured party to initiate litigation.

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November 26, 2014

N. Pac. Ins. Co. v. Stucky - Loss of Consortium Claims After Crash

Courts have long recognized the rights of husbands to take action for actions or omissions resulting in injury to a wife that deprives the husband of loss of marital services. This is termed "loss of consortium."
It wasn't until 1950 women were also granted the right to claim damages for loss of consortium relating to loss of spousal services. Since then, it's been expanded in some jurisdictions to allow for additional recovery for children and parents - even when the children are no longer minors. A claim for loss of consortium cannot be filed on its own, as it is a derivative action of an underlying claim of injury or death due to negligence.

North Carolina is not one of those states that has yet recognized the rights of other family members, aside from spouses, to claim loss of consortium (i.e., loss of parental guidance or a child's companionship). Current case law (Nicholson v. Hugh Catham Memorial Hospital, Inc., decided by the state supreme court in 1980) holds that when defendant causes injury to a married claimant, the claimant's spouse can sue for loss of consortium.

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November 23, 2014

DeLauter v. Seneca Ins. Co. - Drunk Driver Not the Only Liable One in Crash

Drunk driving is a serious problem in North Carolina, causing an estimated 61,000 crashes each year, resulting in 22,000 injuries and nearly 530 deaths. These crashes cost taxpayers in this state an estimated $4.7 billion every year, with the average fatality costing society $4.9 million. Injured survivors incur average costs of $150,000 each.
Generally, we hold the drunk driver responsible for his or her actions. This is where criminal courts will place blame. Civil courts are reticent, too to extend responsibility to third parties. However, there are numerous circumstances under which other parties may be held liable for injuries caused by drunk drivers.

Some examples include: Liquor stores that sell to minors, employers of intoxicated drivers, parents of impaired minors, bars that sell to clearly intoxicated patrons they know will be driving and even, in some cases, the owner of the car (if different from driver) for negligent entrustment of that vehicle.

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November 20, 2014

Motorcyclists Still Face Serious Risks in NC, SC

Motorcyclists face some of the most dangerous conditions on the road, and any collision has the potential to be severely injurious, even deadly. South Carolina has one of the highest accident rates in the nation and riders must be especially cautious when traveling through cities, along state highways, or along the interstate. Fortunately, the number of motorcycle accident deaths is down, according to the state Department of Public Safety. The reduction in accidents has been linked to raised safety awareness, education, and more skilled ridership among South Carolina residents.


An analysis of preliminary data indicates that fatality rates are down from 117 by November 9th, 2013 to 76 on November 9, 2014. Authorities reported that they are seeing fewer deaths occurring by motorcycle accidents involving failure to yield right of way. These types of accidents can often be fatal for motorcyclists. A South Carolina motorcycle safety task force representative stated that one particular change has helped with reducing accidents.

Last year, riders were only required to renew their permits without taking a skills test. The state Department of Motor Vehicles estimated that as many as 30% of individuals who operated one of the 112,000 motorcycles registered in the state held only beginners' permits. According to the agency, many motorcyclists are riding with beginner's permits rather than licenses. Motorcycle experts also report that bikes and models change over the years so it is important for riders to have the skills and ability to handle a motorcycle. Now the DMV requires those who want to renew a permit must take a skills test to receive their license. Riders who do not pass the skills test are now unable to renew their permit.

Other changes are also helping to build awareness and improve safety among the South Carolina riding community. The Motorcycle Awareness Alliance is one organization that is helping to keep riders informed and up-to-date to prevent motorcycle accident fatalities. The state Department of Transportation is also creating public awareness campaigns to remind drivers to be more aware of motorcyclists when sharing the road. According to reports, there were "share the road" and "Target Zero" campaign billboards placed in the 15 counties with the highest rate of motorcycle fatalities.

Motorcyclists often face a stigma of being "high-risk" or "dangerous," though evidence shows that they face additional risks, including physical vulnerability on the road as well as invisibility to other motorists. When involved in an accident, it is important to consult with an experienced legal representative to help protect your rights. You may be entitled to significant compensation for medical expenses, pain and suffering, lost wages, future care taking needs, and other personal losses. Families who have lost a loved one may be entitled to compensation for wrongful death.

Our Asheville motorcycle injury attorneys are experienced with all aspects of civil litigation and can help you protect your rights to recovery.

Though the number of fatalities has decreased, motorcyclists continue to face threats on South Carolina highways and byways. Drivers should be aware of motorcyclists on the road and riders should be properly trained and experienced to ensure proper handling of a bike and compliance with road rules and regulations.

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November 17, 2014

Toddler Killed, Father Charged in Fatal Accident

Impaired driving is one of the leading causes of accidents on the road. Drinking and driving, distracted driving, drowsy driving, or driving while under the influence of marijuana or pharmaceutical drugs can slow reaction times or lead to erratic driving patterns. In the event of a collision, investigators will always seek to determine whether a driver was impaired. In a recent South Carolina tragedy, a 26-year-old man was criminally charged after a deadly accident killed his 2-year-old daughter and injured two other children.

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According to reports, defendant was driving north on White Plains Road when he veered off the left side of the road and smashed into a street sign and a garbage can before slamming into a tree.

Police indicated that the 2-year-old was riding in a booster car seat in the rear seat. Immediately after the accident, emergency responders arrived at the scene and worked to save the life of the child. She was transported by ambulance to a nearby hospital where she was pronounced dead. The father was charged with reckless homicide after a solicitor told the judge that he tested positive for marijuana and admitted to smoking before the accident. It was estimated that the driver was traveling at 65 or 70 miles per hour at the time of the collision, even though the posted speed limit was 45.

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November 15, 2014

SC Coach Charged in Felony DUI

Drunk driving is a threat to pedestrians, cyclists, and motorists sharing the road. When a driver chooses to get behind the wheel after too much to drink, he or she puts others at risk of serious injury or death. In a recent tragic case, an upstate South Carolina assistant baseball coach was criminally charged after being accused of causing a drunk driving accident that killed three people near Anderson University. In addition to those who lost their lives, there were several others injured as a result of the collision.


According to reports, the 24-year-old coach was charged with three counts of felony DUI that resulted in death and three counts of felony DUI with great bodily harm. Bond was denied after he was arrested and charged for the accident, which occurred on a Saturday night in early November. The criminal charges could result in serious penalties upon conviction. In addition to the criminal charges, the defendant is likely to face a civil investigation and civil lawsuits filed by the victims and their families.

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November 12, 2014

NC Appeals Court: Child Awarded UM Coverage Under Grandfather's Policy

When it comes to uninsured/underinsured motorist (UM) coverage, almost all auto insurance policies limit coverage to resident family members. That means that in order for someone other than the policyholder to stake a claim to coverage, he or she must be family member (by blood, marriage, adoption, etc.) and must also reside in the same household.
These may seem like relatively straightforward criteria, but they have proved to be sticking points in a number of car accident lawsuits. The case of North Carolina Farm Bureau Mutual Insurance Company, Inc. v. Paschal et al. heard by the North Carolina Court of Appeals earlier this year is one example.

UM coverage is allowable for situations where the at-fault driver either doesn't have insurance or the insurance policy liability limits do not cover the full extent of damages suffered by injured party.

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November 9, 2014

Walters v. Holiday Motor Corp. - Jury Awards $20M to Paralyzed Crash Victim

A jury in Virginia has awarded $20 million to a woman who was paralyzed in a 2006 single-car crash in which she alleged her vehicle did not provide proper roll-over protection.toycar.jpg

The case, Walters v. Holiday Motor Corp., was decided in the U.S. District Court in the Western District of Virginia. Plaintiff alleged the vehicle's manufacturer and distributors were liable for negligence and breach of express and implied warranty under Virginia state law. She sought $25 million in damages.

Although the lawsuit stemmed from a crash, at its heart, it was a product liability claim. The now-35-year-old victim testified that she was traveling on a country road when she swerved to avoid a small, plastic swimming pool that fell off the back of a truck in front of her. At the time, she was driving a Mazda Miata sports car.

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November 7, 2014

Highway Guardrail Safety Doubted Amid Crash Lawsuits

Despite the Federal Highway Administration's insistence that highway guardrails are safe, many states are halting new purchases, while crash victims file lawsuits alleging the rail heads malfunction and act as spears when cars collide, causing injury rather than softening the impact.
Pending lawsuits assert the rails are to blame for at least five deaths and dozens of injuries in at least 14 accidents across the country. The actual number is undoubtedly far higher.

So far, traffic authorities in Missouri, Nevada, Massachusetts and most recently Virginia have announced in the last year they will no longer purchase more of the devices. In Texas, Trinity Industries, one of the top manufacturers of guardrails in the U.S., was found by a jury to have defrauded the federal government after the firm made changes to the rail head in 2005 without informing the government. The lawsuit was brought under the False Claims Act after being initiated by a competitor/whistleblower. The $175 million award will be tripled under federal law to $525 million.

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November 5, 2014

Travelers v. Harrington - Fighting Insurance Exclusions

Few loopholes in auto insurance law have been as troublesome as the so-called "family exclusion" or "household exclusion."
The primary idea behind the family exclusion or household exclusion was to prevent fraudulent claims. Insurers wanted to decrease the chances that family members or co-residents would collude to purposely cause a crash and receive an insurance pay-out.

However, the risk of this scenario to insurers is very small, particularly in light of the price that is paid by the public as a result of the stringent policy guidelines set forth in "family exclusion" or "household exclusion" provisions.

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November 3, 2014

SC Property v. Brock - Insolvent Auto Insurers and State Insurance Guaranty Association

Consumers would be less apt to buy auto insurance if there was a chance the company would suddenly go belly-up and they could be suddenly stuck with no protection after having diligently paid their bills. loggingtruck.jpg

To provide consumers with greater security, the non-profit South Carolina Property and Casualty Insurance Guaranty Association steps in when insurers become insolvent. It won't cover every company or type of claim, but it was established by the legislature to offer coverage in cases providers of auto, workers' compensation, homeowners' or other property and casualty lines become insolvent.

So if you are injured and the other driver's insurance company is insolvent, the SCPCIGA will cover up to $300,000 for bodily injury and property damage under a covered claim. (Plus, injured parties can also seek recompense through their own underinsured motorist plan.)

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November 1, 2014

Bolding v. Kindel Concrete - Proving Causation is Critical to Case

In any personal injury lawsuit, success is not simply proving defendant committed some act of negligence. It's not just proving you suffered injury. It's about linking the two in a way that shows causation.gavel2.jpg

In law, this is known as proximate cause. It's when an event is sufficiently related to a legally recognizable injury to be held as the cause. Attorneys may also examine the "cause-in-fact" element, which is weighed by the "but for" test. That is, "but for" the alleged negligence, the injury would not have occurred.

Even in cases where the facts seem relatively straightforward, it's important to have an experienced legal team that can help you present all the evidence in a way that meets the proximate cause criteria.

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October 29, 2014

As NC Senate Candidate Urges Tort Reform, A 1978 Lawsuit Resurfaces

Advocates for tort reform often argue for caps on damages and other ways to reduce recovery for victims. A North Carolina politician is under scrutiny for advocating tort reform, even though he recovered from a significant settlement after an accident left him partially disabled as a teenager. The case is a reminder that personal injury lawsuits may seem unnecessary--until you become the victim.


According to a recent analysis in the Daily Beast, the North Carolina GOP Senate nominee has been pushing for tort reform. Now his personal history seems to conflict with his political ideology, as he sued after an auto accident that left him with 35% partial disability.

In 1978, the politician was involved in a car accident in Nashville, Tennessee with another young driver. The 17-year-old driver was struck by a 16-year-old female driver who only had her license for 2 months. She wrongly believed she had the right of way to make a left turn on a green light, turning right in front of him and causing the accident. Court documents indicated that the GOP Senate candidate had 35% permanent partial disability, requiring surgery on his hand and physical therapy to restore a full range of motion in his back. Despite the prognosis, he was able to make a full recovery.

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October 27, 2014

Teenager Killed at Dangerous Raleigh Intersection

Accidents involving pedestrian victims can be deadly, especially when a vehicle is traveling at high speeds. In a tragic case, a 17-year-old girl was killed on Capital Boulevard in Raleigh when she attempted to cross the street. According to reports, the teen was struck when she crossed Capital Boulevard around 7 p.m. She crossed the road while oncoming traffic had a green signal, according to police reports. A 49-year-old driver was headed north when she struck the victim. She pulled over and tried to help while waiting for the authorities to arrive on the scene.


As with any accident case involving a fatality, this case is still under investigation. Authorities have not charged the driver, but do not believe that drugs or alcohol were a cause of the accident. The victim was in critical condition when she was taken to the hospital, but later died of her injuries. According to reports, this was the second accident in the past two months involving a pedestrian crossing at the same intersection. Another victim was struck on September 3rd in a hit and run, but the driver has not yet been located. The first victim suffered serious injuries, which were not life threatening.

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October 26, 2014

Defective Air Bag Recall May Be Largest Ever, Scrutiny Rises

Air bags are designed to be life-saving devices in the event of a serious auto accident. However, it appears that millions of airbags produced by one of the world's largest manufacturers of the product created a product that actually heightened the risk of major injury and death for some drivers and passengers. airbag.jpg

Auto part supplier Takata, based in Japan, has so far recalled 7.8 million of airbags from 11 auto makers after reports of the deployed bags hurling dangerous fragments of shrapnel at the heads, necks and chests of those in front seats. At least four deaths and several dozen injuries have been linked to the problem, but a New York Times investigation last month found at least 139 crash injuries in the U.S. were attributed to this issue.

This has prompted lawmakers to place pressure on the National Highway Traffic Safety Administration to provide a more in-depth accounting of how the recall was handled, and whether it was adequate. One letter, signed by two senators, scolded the federal regulator for allowing car manufacturers to limit the initial recall in July to those geographic areas with high humidity as that was alleged to have been the reason for the defect.

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