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July 2013 Archives

Wags 4 Tags Fundraiser at Doherty's Irish Pub Cary

Wags 4 Tags a great organization that raises money to have shelter dogs trained to work with veterans with PTSD is having a fundraiser at Doherty's Irish Pub on July 20th beginning at 2pm.   Live music from 6 bands. Wags 4 Tags Charity Event Doherty's is located at 1979 High House Rd, Cary, NC.  Please come out and help raise money for our veterans with PTSD. Our own Susan O'Malley is a member of Wags 4 Tags and encourages participation in this wonderful program.

North Carolina Car Accident with property damage?

Property damage (damage to your car) from a car accident or crash means careful negotiation to obtain what you are legally entitled from the insurance company. Know what your are legally entitled before you begin negotiation so that it reduces tension and frustration and so you can quickly get to a middle ground. Joe Tunstall describes what to do. Property Damage from a Car Crash Property Damage from a Car Crash The law in North Carolina is clear, market value of the vehicle can be recovered. Further you may recover lost time from the vehicle and in the case of business use, some lost profit provided you take reasonable steps to make back your loss. The Supreme Court and Court of Appeals have specific decisions addressing how value is to be determined. In Gillespie v. Draughn the Court of Appeals addressed the issues and in Roberts v. Pilot Freight Carriers, Inc. the North Carolina Supreme Court addressed these issues. "When a plaintiff's vehicle is damaged by the negligence of a defendant, the plaintiff is entitled to recover the difference between the fair market value of the vehicle before and after the damage. Evidence of the cost of repairs or estimates thereof are competent to aid the jury in determining that difference. When a vehicle is negligently damaged, if it can be economically repaired, the plaintiff will also be entitled to recover such special damages as he has properly pleaded and proven for the loss of its use during the time he was necessarily deprived of it. [Citations omitted]"Id. at 606, 160 S.E.2d at 717.9 Gillespie v. Draughn, 54 N.C. App. 413, 417, 283 S.E.2d 548, 552 (1981). The Gillespie Court meant that you can recover the value of your vehicle immediately before the crash if it is totaled. If your vehicle can be repaired then the value of the vehicle including cost of repairs can be recovered. This court does not address, but certain statutes do that you may be able to recover for diminution in value. For a clear idea of how to recover diminution see our previous blog on diminution. In order to recover for loss of use, it must be possible to repair the damaged vehicle at a reasonable cost and within a reasonable time. The measure of damages to be recovered is the cost of renting a similar vehicle during a reasonable time for repairs. If the vehicle cannot be repaired or if it cannot be repaired within a reasonable time, plaintiff is obligated to purchase a replacement vehicle and will be entitled to reimbursement for costs of a rental vehicle during the interval necessary to acquire the replacement vehicle. Roberts v. Freight Carriers, supra; Ling v. Bell, 23 N.C.App. 10, 207 S.E.2d 789 (1974). Gillespie v. Draughn, 54 N.C. App. 413, 417, 283 S.E.2d 548, 552 (1981). In general, the right to recover for loss of use is limited to situations in which the damage to the vehicle can be repaired at a reasonable cost and within a reasonable time. If the vehicle is totally destroyed as an instrument of conveyance or if, because parts are unavailable or for some other special reason, repairs would be so long delayed as to be improvident, the plaintiff must purchase another vehicle. Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 606, 160 S.E.2d 712, 717 (1968) In this situation, he would be entitled to damages for loss of use only if another vehicle was not immediately obtainable and, in consequence, he suffered loss of earnings during the interval between the accident and the acquisition of another vehicle. The interval would be limited to the period reasonably necessary to acquire the new vehicle. Colonial Motor Coach Corp. v. New York Cent. R. Co., 131 Misc. 891, 228 N.Y.S. 508 (Sup.Ct.); 8 Am.Jur.2d Automobiles and Highway Traffic s 1049 (1963). Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 606, 160 S.E.2d 712, 717 (1968). The above language has created issues as many insurance companies has defined reasonable period to find a new vehicle to be as little as 48 hours. They also quite often stop payment for a rental before they send your check for the property damage. So purchase of a vehicle gets delayed a few days while you await their check and often, depending on your bank, get delayed up to ten (10) days waiting for their check to clear. Therefore, if it appears your vehicle is totaled, it is good to contact a reliable car dealer who can work with you on obtaining a vehicle while you await the insurance check for a down payment or purchase. O'Malley Tunstall BUSINESS VEHCILE Ordinarily the measure of damages for loss of use of a business vehicle is not the profits which the owner would have earned from its use during the time he was deprived of it; it is the cost of renting a similar vehicle during a reasonable period for repairs. Drewes v. Miller, 25 So.2d 820 (La.App.); annots., Damages to Commercial Vehicle, 169 A.L.R. 1074, 1087-1098 (1947), 4 A.L.R. 1350, 1351-1363 (1919). This limitation is an application of the rule that one who seeks to hold another liable for damages must use reasonable diligence to avoid or mitigate them. 2 Strong, N.C. Index, Damages s 8 (1959); annot., Duty of one suing for damage to vehicle to minimize damages; 55 A.L.R.2d 936 (1957); National Dairy Products Corp. v. Jumper, 241 Miss. 339, 130 So.2d 922. Thus, before a plaintiff may recover lost profits resulting from the deprivation of his vehicle, he must show (1) that he made a reasonable effort to obtain a substitute vehicle for the time required to repair or replace the damaged one, and (2) that he was unable to obtain one in the area reasonably related to his business. In the absence of such a showing, he may not recover lost profits. National Dairy Products Corp. v. Jumper, supra; Drewes v. Miller, supra; 25 C.J.S. Damages s 83c (1966). When, however, he has carried the burden of proving that no substitute vehicle could be rented, a plaintiff may recover lost profits if he can establish the amount of the loss with reasonable certainty. See Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894; Johnson v. Atlantic Coast R. Co., 140 N.C. 574, 53 S.E. 362; 8 Am.Jur.2d Automobiles and Highway Traffic s 1050 (1963). If a plaintiff could have rented a substitute vehicle, the cost of hiring it during the time reasonably necessary to acquire a new one or to repair the old one is the measure of his damage even though no other vehicle was rented. The burden is on the plaintiff to establish the cost of such hire. 8 Am.Jur.2d Automobiles and Highway Traffic s 1047 (1963). Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 606-07, 160 S.E.2d 712, 717-18 (1968) The fact that an owner, in lieu of repairing a vehicle which could have been economically repaired, 'trades it in' on new equipment, will not preclude him from recovering damages for loss of its use during the time reasonably required to purchase new equipment or to make the repairs, whichever is shorter. *607 Glass v. Miller, 51 N.E.2d 299 (Ohio App.). See Hayes Freight Lines v. Tarver, 148 Ohio St. 82, 73 N.E.2d 192. **718 7891011 The above language sets out the test for loss money in a business vehicle. To recover you MUST show: (1) that he made a reasonable effort to obtain a substitute vehicle for the time required to repair or replace the damaged one, and (2) that he was unable to obtain one in the area reasonably related to his business. So you must attempt to find a vehicle and rent to to reduce business loss. Property damage can be confusing and frustrating. Often people are injured and hurting during this period which makes following this advice even more difficult. Call us if you need assistance 800-755-1987 or visit our webpages to contact us.

Appealing a Social Security Disability, SSI Decision

Loose a Social Security Disability decision? Should youAppeal An Unfavorable Decision? ​If you have been denied Social Security benefits at the hearing level the case can be appealed to the Appeals Council. The council will look at several factors when reviewing an appeal. They will look to see if there was an abuse of discretion by the judge. The will review the case to see if an error of law was made. They will look to see if the finding and conclusions in the decision are supported by substantial evidence. They will consider policy and procedural issues. They will also consider new and material evidence of disability if it relates back to the time period before the decision was made. 20 CFR §404.970. Susan O'Malley Board Certified Disability Specialist ​There are only 60 days after a denial in which to submit an appeal. An extension to file can be requested. ​Partially favorable decisions can be appealed as well. However, if appealed, the Appeals Council will review the entire decision not just the parts you object to. This means the Appeals Council will determine whether any benefits should have been granted at all. ​At the present time, you have to choose whether to appeal or file a new application. You will generally not be allowed to do both. We handle our clients appeals to the Appeals Council but rarely take an appeal we could not build the underlying record. Call us early and before an unfavorable decision. We cal often help. 800 755 1987. O'Malley Tunstall Social Security 20130704-102009.jpg

Social Security Disability, SSI Hearings in 2013

Social Security Disability, SSI What You Hear and What is Real. ​There continues to be a lot in the news about the problems with Social Security disability system. The news is telling the public that the system is too lax and granting too many cases. I have been practicing in this area for eighteen years. My experience is just the opposite. Social Security has become even stricter and is granting fewer cases that it did when I started. Let's look at some facts about Social Security. The average case in the Raleigh hearing office takes 420 days to be processed. The processing time in Greensboro hearing office is 498 days. The processing time for the Charlotte hearing office is 461 days. Many beneficiaries are terminally ill - about 1 in 5 males and 1 in 6 females die within 5 years of receiving benefits. This is not an easy process and it clearly is not quick. People would not wait for this benefit if they had any other choice. ​The reason for the growth in the number of claims and the length of the processing time is primarily due to the aging of baby boomers and the large scale entry of women into the work force in recent decades causing more people to need and qualify for disability. ​The media has ignored that there a Social Security judges around the country with very low approval rates. There is even a judge with an approval rate of only 4%. When you look at the whole picture, where Social Security is now makes sense. There are always changes necessary for any program to continue. However, making an already strict system even stricter is not the answer. If you are disabled and unable to work, or becoming unable to work, call us; we will be glad to answer your questions. O'Malley Tunstall

Ability to Sue due to Injuries caused by State Employees interpreted by the North Carolina Supreme Court in Ray v. N.C. Dep't of Transportation

The North Carolina Supreme Court in Ray v. N.C. Dep't of Transp. Determined that the public duty doctrine was not a defense to negligence by state actors unless the injury comes from (1) a police officer's failure to protect the Plaintiff from third parties or acts of God, or (2) a State officer's negligent failure to perform a health or safety inspection. Personal Injury Attorney -- Joe Tunstall The case arose from a tragic accident where the decedent was driving on a state-maintained road with three other individuals in her car. The state-maintained road had an "eroded section" which "caused her vehicle to veer off the roadway." When she attempted to return to the highway, the erosion caused her to over correct, she lost control, hit an oncoming car in a head-on collision, and the driver and all three of her passengers were killed. After this tragic accident, the estates of the driver and all the passengers sued the North Carolina Department of Transportation ("NCDOT") for negligence under the State Tort Claims Act ("STCA"). After a number of appeals, it became apparent that the legal issue was how the public duty doctrine affects this type of claim in light of the 2008 amendments to the STCA. The Court found that the legislature intended the public duty doctrine to be limited in scope under the STCA. Using a plain-language method of statutory interpretation of the 2008 STCA amendments, the Court held that "the public duty doctrine is only a defense if the injury alleged is the result of (1) a law enforcement officer's negligent failure to protect the plaintiff from actions of others or an act of God, or (2) a State officer's, employee's, involuntary servant's, or agent's negligent failure to perform a health or safety inspection required by statute." The Court very clearly stated that "in all other cases the public duty doctrine is unavailable to the State as a defense." The relevant text of the amendments is as follows: (a) Except as provided in subsection (b) of this section, the public duty doctrine is an affirmative defense on the part of the State department, institution, or agency against which a claim is asserted if and only if the injury of the claimant is the result of any of the following: (1) The alleged negligent failure to protect the claimant from the action of others or from an act of God by a law enforcement officer as defined in subsection (d) of this section.(2) The alleged negligent failure of an officer, employee, involuntary servant or agent of the State to perform a health or safety inspection required by statute. (b) Notwithstanding subsection (a) of this section, the affirmative defense of the public duty doctrine may not be asserted in any of the following instances: (1) Where there is a special relationship between the claimant and the officer, employee, involuntary servant or agent of the State.(2) When the State, through its officers, employees, involuntary servants or agents, has created a special duty owed to the claimant and the claimant's reliance on that duty is causally related to the injury suffered by the claimant.(3) Where the alleged failure to perform a health or safety inspection required by statute was the result of gross negligence. The Court further found that, since the legislature was essentially codifying existing case law with the amendments, the 2008 amendments were clarifying amendments, rather than substantive-law altering amendments. Therefore, the Court found that the amendments apply to all claims pending or brought before the State's courts after the amendments passage (October 1, 2008). As applied to the case at bar, the Court's interpretation of the 2008 STCA amendments did not bar any of the Plaintiffs' claims. Plaintiffs' claims for negligent design and execution of the narrowing of the roadway, and Plaintiffs' claims for negligent failure to repair the roadway are not barred by any interpretation of the public duty doctrine. However, Plaintiffs claims that the NCDOT should have known of the defect "amounts to a claim that DOT negligently failed to inspect the roadway" could conceivably be barred by N.C.G.S. § 143-299.1A(a)(2)(negligent failure to inspect). However, the Court found that the failure to inspect claim could move forward under N.C.G.S. § 143-299.1A(b)(3) because "the passage of a substantial period of time since development of the defect ... gives rise in this case to the inference that DOT intentionally avoided [the road]." That inference was sufficient to support a claim for gross negligence at the motion to dismiss stage of proceedings. By limiting the public duty affirmative defense to only two specific situations, the NC Supreme Court shut the door to the State's creative use of the doctrine to limit its liability. Ultimately this case strengthens the claims of parties injured by the State. If you have been injured by a State Employee please contact us today at O'Malley Tunstall to discuss your claim.

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