O'Malley Tunstall PLLC
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Offices in Raleigh, North Carolina, and Eastern North Carolina

August 2011 Archives

Why should you review your homeowners coverage before you need it.

Sitting in my office in Tarboro talking to my law partner in our other office in Raleigh it made me think that with a hurricane and an earthquake in one week the old saying that if you don't like the North Carolina weather, wait a few minutes, it will change. After every major disaster in North Carolina, whether hurricane, fire, flood or ice storm my firm's phones are flooded with people trying to make sure they are doing the right thing.  The people who are calling are not trying to get over on anyone, they just want to find out whether they should call their insurance company, whether they have a claim and what they should do while waiting to hear from their insurance company and how to make sure they are following all the rules. In the great majority of disaster type claims, you are dealing with homeowners, renters or umbrella coverage.  Typically if it is a property damage claim on your own property, homeowners coverage is the insurance coverage upon which you will make a claim.  An exception here in Eastern North Carolina is if the damage was from rising water, then often a claim must be made on your flood insurance.  If you live anywhere near water, flood insurance is a must. Renters coverage is just that; coverage for your belongings in a house or apartment that you rent from someone else.  Typically, it is very inexpensive coverage and is a must for any renter. Umbrella coverage is a type of universal liability coverage above and beyond any homeowners coverage purchased.  Liability coverage is coverage in case  an action on your part causes damage to another.  It is used to protect your assets and can be combined with your liability coverage under your homeowners coverage.  Again, typically a one million dollar umbrella policy is very inexpensive. Homeowners insurance is a contract.  Please don't be one of those people who has never read their homeowners policy until they call after a disaster to discover what they have their property insured for and what they did not have insured at all.  Certain items are typically not covered on your homeowners, for example, most of the time the amount of jewelry or other incidentals you can be reimbursed for having destroyed by a limb through your house is very low.  Make sure you do a specific rider on your policy for any high valued jewelry. Guns are in the same position.  More than once a client has been upset that his wonderful gun collection cannot be recovered as the insurance company didn't have them on a rider and there was no proof of serial number or even a picture.  Also know your deducible.  Before making a $500 claim with a $1,000.00 deductible, make sure you think it through. The first thing we always tell our clients to do is take pictures! A lot of pictures! Video is also a great idea if at all possible before you begin the clean up and again during.  The biggest mistake you can make is to not document the problem in your hurry to get cleaned up.  Also, if further damage is created in a reasonable attempt to minimize your damage, it is often covered. After taking your pictures you can safely begin to clean up your damage.  Safety is the key.  If you get hurt cleaning up your property there is no one to blame or recover from but yourself.  Take your time and be very careful. After looking at your policy before the disaster and taking pictures of the results, you should call and report your damage immediately.  The earlier you report the damage the quicker an adjuster can come take a look and it reduces the amount of additional damage you may have to fix.  You also have a duty to mitigate or reduce your own damage and delay may result in a finding you have failed to mitigate your damages. Finally, be honest in your dealings with the insurance company.  Nothing throws up red flags (and denied claims) like exaggeration of the claim.  Don't just throw in something damaged in the past and expect it to be paid.  Remember, this is first party insurance and your insurance company has a duty to deal with you in good faith, so give them the same benefit. Bad faith is a type of claim that can be brought on your behalf against your insurance company if they fail to meet their obligations to you.  Again, documentation, especially in writing with pictures, is the best way to protect yourself.  The North Carolina Department of Insurance, which regulates insurance companies can also advise how to make claims against unfair insurance practices; however, our firm has handled many bad faith claims. If you have any questions, feel free to give our office a call.  800-755-1987  

Supreme Court: No Liability for Generic Medication Manufacturers

Recent calls into my office have sparked my thoughts back to the non sequitur that is the recent decisions of our U.S. Supreme Court with regard to which injured plaintiffs may recover from drug manufacturer.

Personal Injury Case: Overview of an Auto Accident Trial

Many times the first time one of my client's injured in an automobile collision considers what will happen at trial is when we are in final trial preparation.  Obviously, we have tried all that I can to get my client's to think about trial, but it is just not real to many people until your about to have to pick a jury the next week. As a review, by the time you get to trial almost every client will have tried to settle or resolve the case pre-suit, answered written discovery about the case, had their deposition taken about their injuries and the effect of their injury on their lives, tried to settle the case at a court ordered mediation where a neutral mediator tries to assist in the settlement of the case, reviewed their own doctor's deposition about their injury and finally met with their own attorney several times to get ready for trial. One of my favorite mediators (mediators are most often attorneys who have been trained in alternative dispute resolution to help resolve the case) likes to say that although he has often found attorneys that get excited about trying cases, he has never seen a client that looked at his/her lawyer after the trial and wanted to pay them to do it all over again as it was so fun. Trial: the great equalizer.  At trial you will pick a jury and tell that jury about your injury, who caused it and why and then ask that jury to make you whole for your injuries.  Complex evidence rules and strange procedures will be used... so what's actually going on? In North Carolina, before you ever come into the courtroom, your attorney has prepared a pre-trial agreement for the defense attorney and the judge.  This agreement is what the parties agree upon (stipulate) and what the parties argue about or disagree.  In addition almost every time there has been motions heard about what evidence will and will not be allowed in by the judge.  Often what will be allowed or not allowed in will be critical to what questions and witnesses your attorney can use or call.  Always find out what happened in these conferences before you begin the trial. Once you arrive the judge will call the case, and put the first twelve jurors in the "box" or the jury seating area.  Often, depending on the judge, a few questions will be asked from the bench or perhaps the judge will tell the jury a little about what the case is about before turning the questioning over to your lawyer.  As you have the burden of proof the judge will allow the Plaintiff to go first in voire dire or jury selection.  Each side has eight (8) challenges for any reason.  The questioning goes back and forth between the sides until the jury is selected. After the jury is selected and impaneled (sworn to do their job as jurors) both attorneys will give their opening statement or forecast of the evidence in the case.  It is the first time the jury will actually hear what both attorneys believe the evidence will demonstrate as to damages and liability (whose at fault).  The attorneys job is for both to give as close as possible to an argument as to what the jury should do without actually causing an objection from the other side for arguing. After opening statement, evidence will be given.  As the client in a personal injury case, it is your one chance to tell your side of the story.  You've given your opinion numerous times about specific questions, but this is the first opportunity to actually tell the jury your story.  The difficult part is telling your story within the evidence rules.  You must listen to your attorney about how to testify.  Failure to follow your attorney's instructions will always result in a frustrating experience trying to tell your story. After all the testimony has been given, the defense (insurance company lawyer) will put on evidence.  In North Carolina never be surprised if the defense fails to put on any evidence.  If the insurance company lawyer doesn't put on any evidence they get to give the last argument to the jury... in North Carolina that is often worth its weight in Gold. After all the evidence has been presented, the parties meet privately with the judge outside of the hearing of the jury to discuss what instructions will be given the jury.  The jury instructions determine not just what the jury will be told to do, but what will be presented to the jury for them to determine in their final deliberations.  This is where the judge and the attorneys argue about such important items as future damages vs present damages vs past damages, same for medicals, permanency, scarring, etc. After the instruction conference both attorneys will have an opportunity to give their final argument to the jury.  The final argument is the last opportunity for the attorneys to discuss their interpretation of the evidence to the jury. The judge will then instruct the jury on the law and send them out to deliberate.  When the jury returns, there will be an answer to the question as to what that case is worth.  

Do I need an Attorney to help with my Social Security claim?

Do you need an attorney or merely an approved representative to help you with your Social Security claim? Many law firms use approved representatives instead of attorneys to handle the hearings. What is the benefit of the approved representatives? The only benefit is that the law firm can pay the non-attorney representative less. There is no benefit to the person who is applying for disability. Always ask the law firm you are hiring whether the person handling your claim is an attorney or non-attorney representative. In addition to the obvious, that the attorney who handles your case has ethical considerations with regard to how they have to handle your claim and how they have to interact with you, only an attorney can file your claim in Federal District Court should you be denied. Many of the attorneys who handle claims a the Federal District Court level will only file those claims in which their firm handled the underlying claim at hearing. In addition, almost every law firm that uses non-attorney representative to handle hearings charges the same fee as those that use an attorney. Therefore, if you are choosing whom to hire to represent you for your Social Security hearing, where a judge will determine whether as a result of your medical condition you will be granted disability and as a result of the same either Medicaid or Medicare or both, why not hire an attorney for the same fee. In our office our Social Security section is headed by Susan O'Malley, a Board Certified Social Security Disability Specialist by the North Carolina State Bar. Susan has one of the only published cases in favor of a Plaintiff at the Fourth Circuit Court of Appeals in a Social Security Case in the last twenty-five (25) years and she lectures frequently to other attorneys throughout the country on Social Security issues. Our firm only uses attorneys to handle Social Security cases from the initial evaluation through all levels of appeal. As almost every firm, whether non-attorney representatives or Board Certified Specialists, handles these claims for the same contingent fee arrangement that will be approved by the Administrative Law Judge, ask about whether you should hire an attorney from the beginning...

Damages: recovery for your harms and losses

Damages are the most difficult topic for any attorney: how do i convey adequately to a jury what my client has experienced?  Compensatory damages are supposed to "make you whole" to put the injured party back in the same place you were prior to the injury.

Hurt in an automobile accident? Someone else at fault? How do you recover in North Carolina?

So you were injured due to no fault of your own in an automobile accident -- now how do you recover for your wages, medical expenses and harms?  In North Carolina you cannot directly sue the at fault driver's insurance company.  Nor do we have no fault insurance such as that found in New York, instead,   we only allow a recovery against the at fault driver and owner and only if the person injured did not contribute to his/her own injury. If you are injured in an automobile accident in North Carolina you must file suit against the person who injured you and then their insurance company will defend them and pay the judgment up to the amount of policy limits.  If they do not have insurance or do not have enough insurance another set of questions must be asked. Every driver in North Carolina is required to carry the minimum limits coverage of liability and uninsured motorist coverage to drive their vehicle.  The minimum limits currently are $30,000.00 per person and $60,000.00 per vehicle.  That means that no one person injured may recover more than $30,000.00 and regardless of the number of injured people the entire recovery is capped at $60,000.00. Does that mean that if there are serious injuries you cannot recover more than $30,000.00 from the defendant?  No!  If the defendant only has minimum limits you can obtain a judgment for more than $30,000.00 and recover the remainder against his/her personal property.  In North Carolina, it is extremely difficult, although our firm has done it numerous times, to recover the personal property of a defendant. In addition to liability coverage, you may be able to recover umbrella coverage.  Umbrella coverage is a type of universal coverage policy that protects a person in the case of any at fault liability.  An umbrella policy is often found when pursuing a former insurance professional due to the comprehensive protection in the policy. If the driver of the vehicle and the owner of the vehicle are not under the same policy, often you can pursue the insurance for both.  Often a child driving their parents vehicle is on the same policy (much like a spouse driving another spouse's vehicle) and you cannot have a separate recovery against the driver and owner of the vehicle.  However, if the owner and driver have separate insurance policies and both are not owners of the vehicle you may have a recovery against both policies. If a person was working at the time of the automobile crash, you may have a direct recovery against the employer as well as the employee.  This is often found with commercial drivers who cause automobile collisions.  Therefore, you must always know if the defendant was working at the time of the automobile collision. If a defendant has no insurance at all, you may recover as to your own uninsured motorist (UM) coverage.  UM coverage is required coverage that will pay if the defendant is uninsured.  You may recover up to the limit of UM coverage purchased. If the defendant has the minimum limits you can still recover above that coverage if you have purchased Under Insured Motorist (UIM) coverage.  This is non-mandatory coverage that allows you to recover above the amount of insurance maintained by the defendant up to the limit you have purchased.  In NC you can purchase up to a million dollars in UIM coverage. The short lesson from this blog is protect yourself by purchasing an umbrella policy and by purchasing as much UIM coverage as possible.

Actos (Pioglitazone): Bladder Cancer Risk

Bladder Cancer Risk from Actos (pioglitazone).  On June 15, 2011 the U.S. Food and Drug Administration (FDA) announced that use of the diabetes medication Actos (pioglitazone) for more than one year may be associated with an increased risk of bladder cancer. 

Winning Social Security Cases in Federal Court: Can it be Done?

Very few attorneys take their Social Security cases into Federal District Court and even the ones that do take very few.  Susan O'Malley, a Board Certified Social Security Disability Specialist by the North Carolina State Bar has made a practice of taking her cases, those that she believes she has an argument, to Federal Court and she has been very successful.  In fact, Susan has taken and won a case at the Fourth Circuit Court of Appeals; Hines v. Barnhart, 453 F. 3d 559 - Court of Appeals, 4th Circuit 2006 one step below the United States Supreme Court. To get a case into Federal Court, a claimant must have filed an application which was denied, filed a motion to reconsider the initial decision which was denied, filed for a hearing in front of an Administrative Law Judge which was denied, filed for reconsideration by the Appeals Council which was denied and then finally, filed a lawsuit against the Commissioner of Social Security in Federal District Court. There are three Federal District Court Districts in North Carolina. Those are the Western, Middle, and Eastern Districts. An appeal from a denial by the Appeals Council must be filed within sixty (60) days of the receipt of the denial. 20 C.F.R. § 404-981 Social Security assumes that the letter is received within five (5) days after the date stamped on the denial letter. The complaint must be filed in the United States District Court for the judicial district in which the claimant resides. The review of a final decision of the Social Security Administration concerning disability benefits pursuant to the Social Security Act, 42 U.S.C. 39-406, is limited to two determinations. First, whether the Social Security Administrations findings of fact are supported by substantial evidence. Second, whether the correct law was applied. Hayes v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990). Section 405 (g), governing judicial review of final decisions of the Social Security Act relating to disability benefits provides that the Social Security Administration's finding of fact shall be conclusive if supported by substantial evidence. 42 U.S.C. 405 (g) (Supp. 1993). This means that Federal Court cannot look at the case anew. The Court is looking to see if the record supports Social Security's findings and whether the law was applied correctly. Whether the Court would have reached the same result is irrelevant. You must prove that the Social Security's decision was either not based on the proper law or not based upon substantial evidence.  This incredibly difficult standard is why only a few cases are appealed to Federal Court and why so few attorneys can, as Susan has done repeatedly, prevail in Federal Court. In addition to Susan, Joe Tunstall has also argued successfully in Federal District Court for the Eastern District of North Carolina.  Recently, Joe argued two successful cases in front of Judge Boyle, one of the most respected jurists in the Federal System, for very deserving clients.  Joe has also handled cases for years in the Eastern District.  

Personal Injury Case: Thoughts on Trial Preparation

An old trial adage is that it takes four (4) hours of preparation for every hour of trial.  The reality is that it often takes fare more hour than that to adequately prepare for the trial of a personal injury case.  In our office every case that we agree to represent is potentially a trial.  No cases come in that we agree to take only if we can settle them.  This mentality creates an outlook towards trial preparation that begins from the first day a case is in our office. How do you begin correctly to prepare a case from the first day -- its a mindset.  First, everything you do from the first investigation of the case to the final witness preparation all affects the final outcome. Often the early investigation, from witness statements and photographs to discussions with the investigating officer makes all the difference months and years later during the trial.  Our office employs experienced investigators who take those early witness statements, not just from witnesses to the collision, but from family members who will testify later about their experiences.  We take pictures of both vehicles whenever possible to have an accurate depiction of the actual damage in the wreck.  Our investigators always work with the attorney to find out whether there will be questions about liability early in the case. Every discussion with the client, every phone call to an adjuster or defense attorney needs to be characterized for easy review prior to trial.  Part of trial preparation is the endless motions practice where those who prepare well and put their client in the best possible position will be ready to prevail.  Case review is essential for all of the above. In the weeks and months prior to trial periodic review of the information gathered in deposition and mediation is essential to deciding what next step must be taken.  Often the worst thing an attorney can do is have a great idea about the next step to be taken that could assist his client, but waits to close to trial to begin putting the steps together.  Experienced lawyers will tell you that you must begin early. In personal injury cases, often there is a lot of documents that must be obtained in order to have your damages proven at trial.  Lost wages, doctor opinions, property damage information, etc must be put together early to have someone available to get the documents admitted. Organization is quite often the difference between experienced lawyers and those who are learning to try cases.  Not just having the documents, pictures and depositions put together, but deciding how to put them together and in what order is essential.  My office only uses electronic document storage and organization, therefore, we began several years ago or order all of our depositions in electronic format to keep all of our trial information in the same organizational framework.  Most electronic systems also allow you to search every document, file, deposition etc within a file for key words.  This allows for easier trial preparation and allows, via laptop in a deposition to get to essential issues and questions. Finally, regardless of the type of trial organization you prefer, if you have not frequently reviewed your information in preparation for trial, you will have difficulty getting all your information ready for trial.

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Raleigh Office
8300 Falls of Neuse Road
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Raleigh, NC 27615

Toll Free: 800-755-1987
Phone: 919-277-0150
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405 North Main Street
Tarboro, NC 27886

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Phone: 252-823-2266
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