SWEEPING CHANGE IN NEGLIGENCE LAW

The North Carolina legislature is on the path to bringing North Carolina into line with 46 other states by dumping the old and illogical contributory negligence system with comparative negligence laws. See the summary below created by the North Carolina Advocates for Justice for an explanation of what this means for you:

COMPARATIVE FAULT:
FAIRNESS AND JUSTICE FOR ALL NORTH CAROLINIANS
HB 813
What is comparative fault?

Comparative fault — the law in 46 states but not in North Carolina – allows judges or juries to divide responsibility among everyone who contributed to an injury, based on their degree of fault.

North Carolina does not have comparative fault. We have contributory negligence, a rule that prohibits an injured person from receiving any compensation if she made even the slightest contribution to her injury.

Why is contributory negligence bad for North Carolina?
• Individuals and businesses hurt because of someone else’s wrongdoing are denied the
opportunity to seek compensation for their injuries.
• Contributory negligence undermines principles of accountability and responsibility that lie at the heart of our civil justice system.

How do we fix the problem of contributory negligence?

Replace contributory negligence with comparative fault – as 46 other states have done.

The North Carolina Advocates for Justice (NCAJ) supports enactment of the Uniform
Apportionment of Tort Responsibility Act (UATRA), a model bill approved by the National Conference of Commissioners on Uniform State Laws in 2002. Drafted by a broadly representative committee, UATRA is a compromise that draws on the experience of the 46 states that have adopted comparative fault.

How does UATRA work?
UATRA replaces contributory negligence with comparative fault. Under current law, if a person is 1% or more at fault, she can recover nothing from the party primarily responsible. Under UATRA, the injured person can recover as long as she is not more than 50% at fault. Her recovery is reduced by the percentage she is at fault.
UATRA also modifies joint and several liability. Under current law, fault is not divided among multiple wrongdoers, and the injured person can collect all her damages from any one of the responsible parties. Under UATRA, when two or more parties cause the injury, fault is allocated among those wrongdoers, based on their proportionate responsibility.

Here’s an example of how it works. A speeding truck runs a red light and hits Beth’s car broadside, totaling the car and fracturing her skull. Beth had the green light, but was driving 5 miles per hour above the speed limit. The jury decides that the truck driver was 90% at fault for running the red light and Beth was 10% at fault for speeding. Under the current law of contributory negligence, Beth would receive nothing because she was partly at fault. Under UATRA, Beth would receive compensation for her injuries, minus 10% for her fault in the accident.

UATRA is a compromise that strikes a thoughtful balance between the
interests of plaintiffs and defendants, fairly apportioning fault to all who
are responsible.

PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENT STATE OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.

IF YOU ARE INTERESTED IN LEGAL REPRESENTATION, PLEASE CONTACT ME BY EMAIL OR AT (919) 781-1311. YOU CAN ALSO FIND ME AT WWW.NICHOLLSCRAMPTON.COM (this site currently being updated).

AUTO INSURANCE YOU CAN'T LIVE WITHOUT

As you read this, do you know if you have uninsured (UM) or under-insured (UIM) automobile insurance? If you don't, you should call your agent today and find out.

Here's why:

In North Carolina, if you are in a car accident that is not your fault, the other driver's auto insurance policy is obligated to pay for your medical care, pain and suffering, lost pay from missed work, etc...BUT, did you know that drivers in North Carolina are only required to have $30,000 worth of liability insurance? That means that in the accident scenario I just mentioned, you could be limited to just $30,000 worth of recovery, regardless of your actual injuries or medical bills.

Further, there are a lot of people driving around in this state without any liability insurance at all. If one of those people hits you, then you will most likely receive nothing for your medical bills or injuries.

Think $30,000 sounds like a lot? Think again. I recently represented a woman who was injured by a driver that ran a red light and hit her in the driver's side door at 50 miles per hour. Her car landed on an embankment after it was knocked out of the intersection. She had multiple fractures and spent six (6) days in the hospital. Her medical bills alone were well over $30,000. That's her car in the picture above.

Guess how much insurance the at fault driver had? $30,000. This did not even cover my client's medical bills, much less lost wages or compensation for the weeks that she could not walk, use the bathroom by herself or live without very strong pain medications and 24 hour help from her daughter and son-in-law.

Now imagine if that driver did not have any liability insurance at all! This is just one of many clients that discovered too late that they did not have enough uninsured or under-insured auto insurance on their policy.

UNINSURED auto insurance is insurance that YOU buy on YOUR auto insurance policy. It pays YOU if YOU are hit by someone that does not have insurance.

UNDER-INSURED auto insurance is also insurance that YOU buy on YOUR auto insurance policy. It pays YOU if YOU are hit by someone that does not have enough insurance to pay all of your damages.

The important point is this: YOU BUY UNINSURED AND UNDER-INSURED COVERAGE TO PROTECT YOU AND THE MEMBERS OF YOUR HOUSEHOLD. It is the way to protect yourself from drivers that have little or no liability insurance. And those drivers are out there in large numbers.

The other thing to keep in mind is that under-insured coverage is reduced by the amount of the other other driver's liability policy. That means that if the other driver has $30,000 policy limits and you have $50,000 under-insured limits, your total available insurance coverage is $50,000, not $80,000. In my opinion, $50,000 is just not enough uninsured or under-insured coverage.

What's the bottom line here? I strongly encourage everyone that can afford uninsured and under-insured coverage to buy at least $100,000 worth of both on their policy. And, if you can afford $250,000 or more, then buy it. And, don't wait for you insurance agent to mention it, because they usually will not.

I hope you never have to recover benefits under either of these types of insurance. But, it will be too late if you are injured by a driver who has little or no insurance of their own. Call your insurance agent and ask them about your under-insured (UIM) and uninsured coverage(UM) today.

PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENT STATE OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.

IF YOU ARE INTERESTED IN LEGAL REPRESENTATION, PLEASE CONTACT ME BY EMAIL OR AT (919) 781-1311. YOU CAN ALSO FIND ME AT WWW.NICHOLLSCRAMPTON.COM (this site currently being updated).

Recent Interview with the North Carolina Advocates for Justice

Each month an Auto Torts Section member responds to a few questions regarding their practice and experience, growth and changes in the auto torts practice area. This month, the "Interrogatories" spotlight is focused on Randolph (Tre') Morgan III with Nicholls & Crampton, P.A. I, on behalf of Auto Torts Section members, would like to send a huge thank you to Tre' for his excellent article. Enjoy!

Randolph "Tre'" Morgan III graduated from the University of North Carolina at Chapel Hill with a Bachelor of Arts in Psychology. He received his juris doctorate from the University of North Carolina at Chapel Hill School of Law, where he served on the staff of the North Carolina Journal of International Law and Commercial Regulation for two years. He began his career working for several years in insurance defense. In 2004 he joined the plaintiff's bar and practices at Nicholls & Crampton, P.A., 3700 Glenwood Avenue, Suite 500, Raleigh, North Carolina 27612
His contact information is: Telephone: (919) 781-1311, Fax: (919) 782-0465, Email: tmorgan@nichollscrampton.com

1) What was your first trial and how did it go?

I tried my first case solo eight months out of law school. My insured was a convicted crack cocaine dealer with a slight credibility problem (and the plaintiff made sure the jury knew it). It was a minor impact soft tissue case with thorough chiropractic treatment. The adjuster handling the case was the unit manager, and a close personal friend of my senior partner. The carrier picked this case as their test case for "MIST" cases in Mecklenburg County. The adjuster attended the trial. During the lunch break, he grilled me on questions, strategy, etc...Fortunately we obtained a zero damages verdict from the jury. But, it took some days off of my life.

2) What did you learn most from mentoring lawyers when you started?

I learned a good deal about legal marketing from my first position. The insurance defense business is highly competitive, and marketing is the life blood of a lot of firms. I also gained invaluable courtroom experience. Most importantly, I learned that I was not afraid of the courtroom.

3) What would you share with a young lawyer now?

First, your area of practice will not be nearly as important to your career satisfaction as the people you practice with and against. Secondly, that a good legal assistant is worth his/her weight in gold, and should be treated accordingly. And lastly, don't let anybody tell you that practicing law is not a business, or that it is just a business.

4) How has the insurance defense bar changed?

I left the insurance defense bar in 2004. At that time, the carriers were really tightening the reins on defense firm billing. There were already strict coding requirement for invoices and time entry. But, I spent hours each week on the phone with various carriers trying to justify time that was already being billed at very low hourly rates. Paralegals hired by the carriers slashed bills and then forced firms to appeal those decisions to get paid. Some carriers were also requiring firms to adopt flat rate billing structures for cases with certain litigation events triggering new payment levels. By the time I left, some carriers were refusing to pay for travel time, which is brutal for regional defense firms that have cases all over the state.

5) What is the state of the auto practice in North Carolina?

I think that there is too little respect between the two sides of the practice. I was constantly surprised by the personal enmity that adjusters and defense attorneys displayed towards plaintiffs and the plaintiffs' bar. When I switched sides, I was equally surprised by the enmity of some members of the plaintiffs' bar towards adjusters. What I've learned from being on both sides is that adjusters and attorneys on both sides are generally good people trying to do the best job that they can on a particular case.

6) Who was the first client who touched you and why?

One of my first clients was an elderly lady that was scared to death when she was sued. She was very sweet, but very intimidated by the entire process. When we resolved her case, she sent me a handwritten card saying that she thanked God that I had been sent to her to watch over her through the process. I still keep that card as a reminder that there are clients that truly appreciate my help.