Joe Tunstall has been selected to the 2014 North Carolina Super Lawyers list for Personal Injury. He was previously selected to the 2012 and 2013 North Carolina Super Lawyers Rising Stars list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.
Underinsured Motorist Insurance for NC Traffic Collision injuries may provide coverage above the North Carolina minimum limits. In North Carolina the minimum insurance limit to drive is thirty thousand dollars per person. If you have significant injuries or medical expenses that exceed one emergency room visit you may discover that if the defendant has minimum NC automobile insurance limits there may not be enough insurance available to compensate for your damages. Underinsured Motorist Insurance Underinsured Motorist Insurance is insurance above the minimum limits which pays for your compensatory damages when the defendant does not have enough insurance. Underinsured Motorist Insurance can provide coverage in an amount between $50,000.00 and $1 million. It is cheaper than liability insurance. You can arbitrate an underinsured motorist claim in NC. Arbitration is an expedited type of trial to three attorneys rather than a jury. It is typically cheaper, quicker and more reliable than some jury verdicts. Finally, as resolving claims with your underinsured motorist carrier is your insurance, there is a first party duty of good faith, which requires your carrier to treat you correctly. If you have a significant claim that may result in a claim above the defendant's limits, call us to discuss what we can do to assist with your claim. what to do in an automobile collision Contact us to discuss your insurance coverage before your involved in an automobile collision or what we can do to assist with your case.
Add Medical Payments Coverage, known as Medpay, in North Carolina to your Auto Insurance Policy. Medpay coverage is cheap, no fault coverage that can be purchased to pay for lost wages and medical expenses in North Carolina. Whether you have health insurance and need to pay for co-pays or have no health insurance medical payments coverage can be very beneficial. Medical Payment Coverage in NC Traffic collisions Some states provide no fault insurance for all automobile collisions. In North Carolina we are not a no fault state. Therefore in order to recover Medical Expenses or lost wages you must show that the other person was at fault and that you did not contribute to your own injury. Medpay coverage is the exception in North Carolina. You can purchase additional coverage from your automobile carrier called Medical Payment or Medpay that provides, regardless of fault, for reimbursement for medical payments or lost wages. Even if you are at fault, hit by a deer or hydroplane in a storm, you can use medpay to pay for medical expenses or co-pays if you have medical insurance. If you are hit by another in a traffic collision you can use medpay to pay your medical expenses, pay your lost wages and prescriptions. What to do after an injury in a car crash Medical Payment coverage is sold in North Carolina at levels from $500.00 to $100,000.00. Talk to your automobile Insurance Agent about adding Medpay coverage. Contact our office to discuss your case or discuss the use of Medpay or other automobile insurance coverage.
Injured while driving for work? Should you report your injury as a workers' compensation injury or simply allow the case to be handled as a personal injury? Often its tricky to know whether to report your automobile accident case as a workers' compensation case as many people are concerned about their employer discriminating against them for getting injured while working.
Car Crash? Injured? Just not sure what to do next? Often our clients are just not sure what to do immediately after a car crash. Injuries and emotions can get in the way of making good decisions. Therefore, we have created a short check list for you.
Button Batteries also known as coin cell batteries create a serious swallowing danger for children. Unlike a coin, rock or small toy, if a button battery is swallowed by a small child it does not just pass through the body, instead it can cause serious and life threatening burns. Saliva immediately triggers an electrical current that causes a chemical reaction that can severely burn the esophagus in as little as two hours. Once the burning reaction begins, it can continue even after the battery is removed. Coin battery in child's throat As batteries get smaller and are found inside remote controls, calculators, birthday cards and other small devices, these coin sized button batteries can be swallowed by children and stuck in the children's throats. These devices sometimes are not designed correctly and the batteries can be too easily removed by children and then swallowed. Severe burns, hemorrhaging and even death can result. Youtube: Joe Tunstall discusses the dangers of these batteries In 2010 alone, there were more than 3,400 swallowing cases reported in the U.S., according to Dr. Toby Litovitz, of the National Capital Poison Center. After ingestion of a button battery, the symptoms resemble those of the flu, including vomiting, fever, cough and lack of appetite. Data compiled from the National Poison Data System and the National Battery Ingestion Hotline, as well as a review of more than 8,600 swallowing cases and an analysis of recent medical literature, collectively explained how such accidents happen. In nearly 62 percent of cases, children under 6 are swallowing batteries they obtained directly from a consumer product. Nearly 30 percent find the batteries loose, while just over 8 percent get them from battery packaging. The danger of these coin sized batteries, both alkaline and lithium, is serious and the knowledge of the danger needs to be shared with the parents of all young children. The Battery Controlled is a campaign supported by Energizer, in partnership with Safe Kids Worldwide, to alert parents and other caregivers to the hidden danger of swallowing coin lithium button batteries. Visit their informational website at Battery Controlled or at safe kids button battery ingestion. If your child is injured due to ingestion of a coin sized button battery contact our office to discuss. O'Malley Tunstall, PLLC or 800 - 755- 1987.
Social Media after a Car Accident or Personal Injury?? Our clients rarely ask whether they should post to their social media (Facebook, twitter, Instagram, etc) after a car accident or injury case -- they just do. Our society is obsessed with instantly sharing what we are doing, what is happening to us and how we are reacting to our own lives. In the past year, our attorneys have seen a significant increase in requests in discovery (written requests called interrogatories, request for the production of documents and verbal requests at depositions) for logon information for our clients Social Media and requests that they produce the history of their account. Why would the insurance defense attorney (attorney hired by the defendant's insurance company to defend them) care if I have 500 friends on Facebook or 1,000 Twitter followers? They don't. What they are counting on is that many of us share a lot about our lives, but rarely do we share the really ugly parts of our own pain and the shame of having pain and problems following injuries from a collision or injury. Often the best advice is what my grandmother told me many times -- don't put anything in writing you don't want to explain to your grandmother. That is especially true of pictures. Joe Tunstall, why use a trial lawyer After a car accident our clients may post a picture of their vehicle, but rarely do they feel compelled to place a picture of themselves with no shower, hair messy from lack of sleep due to pain, stressed and frustrated for all their friends, co-workers and family to see. Instead they may post a picture of their next GOOD hair day. Although there is nothing WRONG at all with wanting to show your good day, your best days, to family and friends -- the insurance company lawyers know that if a jury sees your smiling face at a birthday party two weeks after the car crash, despite the fact you were in pain when you went, left early after taking a pain pill and didn't sleep that night -- the picture of your smiling face is enough to expose to the jury that you are exaggerating. When you have to explain all the good looking pictures, the only ones you would want to post, even when your in pain and having a tough time, it erodes the juries confidence in your complaints of pain. In Virginia an attorney who was past President of the Virginia Trial Lawyers Association was sanctioned for advising a client to remove damaging photos from his Facebook page after receiving a request from the insurance defense attorney to produce the same. article. An attorney cannot assist a client in removing or erasing discoverable material. A client must have the good sense not to post pictures of themselves they would not want to discuss with a judge, jury or their own grandmother. They must also understand that if they tell a jury about all the pain they had for six months in 2011 and the only pictures are of them smiling with their children at the park (good days) and not of them on the couch afterwards sleeping from the pain their credibility will be attacked. If you have questions regarding this post visit us at our own social media where we still only post the good days. @ncpilawyer on twitter and O'Malley Tunstall Facebook on Facebook. Raleigh office of O'Malley Tunstall, PLLC
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 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.
When injured by a driver that did not have a valid drivers license is the fact the defendant was not licensed admissible at trial? Meet Joe Tunstall, head of our Personal Injury Section. In Swicegood v. Cooper, 341 N.C. 178 (1995), the NC Supreme Court held that evidence of Plaintiff's poor driving record was admissible to prove contributory negligence by negligent entrustment, denying the in limine motion. In Thompson v. Three Guys Furniture Co., 122 N.C.App. 340 (1996), the court held that the status of an individual's driving credentials generated issues of material fact sufficient to withstand a summary judgment motion in a negligent entrustment action. In Dwyer v. Margano, 128 N.C.App. 122 (1997), the court again held that the status of an individual's driving credentials was a genuine issue of material fact. In this case, the fact that Margano had a up to date foreign driver's license was not sufficient to show that his rental car company should not have trusted him with the car. In Tart v. Martin, 353 N.C. 252 (2000), the NC supreme court wrote that "negligent entrustment is established when the owner of an automobile entrusts its operation to a person whom he knows, or by exercise of due care should have known, to be an incompetent or reckless driver" 353 N.C. at 254 (quoting, Heath v. Kirkman, 240 N.C. 303, 307 (1954)). In all four cases the driver's ability to operate a car, from both a skill and a licensure perspective, were admitted as evidence for a variety of reasons. Whether the fact that a defendant did not have a license appears to be fact specific as to admissibility. The courts appears to have given specific gravity to the reason for the admissibility and what it is being used to prove. Therefore, fair or not, it appears that whether a court allows the defendant's failure to even have a valid driver's license only is admissible if there are other evidence of bad driving in the past. If you have injuries from a car accident and have questions, feel free to visit our website.
Very courageous attorneys from North Carolina at Kirby & Holt, L.L.P recently had a rare opportunity. They were able to help shape the law across the country by challenging North Carolina's interpretation of medicaid reimbursement in accident and injury cases. Their argument was that North Carolina's procedure was arbitrary and often hurt those needing help the most; children. In WOS v. EMA 568 U. S. ____ (2013) the court held; "The task of dividing a tort settlement is a familiar one. In a variety of settings, state and federal courts are called upon to separate lump-sum settlements or jury awards into categories to satisfy different claims to a portion of the moneys recovered. Indeed, North Carolina itself uses a judicial allocation procedure to ascertain the portion of a settlement subject to subrogation in a workers' compensation suit. It instructs trial courts to "consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable." N. C. Gen. Stat. Ann. §97- 10.2(j) (Lexis 2011). North Carolina would be on sounder footing had it adopted a similar procedure for allocating Medicaid beneficiaries' tort recoveries. It might also consider a different one along the lines of what other States have done in Medicaid reimbursement cases. The State thus has ample means available to allocate Medicaid beneficiaries' tort recoveries in an efficient manner that complies with federal law. Indeed, if States are concerned that case-by-case judicial allocations will prove unwieldy, they may even be able to adopt ex ante administrative criteria for allocating medical and nonmedical expenses, provided that these criteria are backed by evidence suggesting that they are likely to yield reasonable results in the mine run of cases. What they cannot do is what North Carolina did here: adopt an arbitrary, one-size-fits all allocation for all cases." WOS v. EMA 568 U. S. ____ (2013) Any reader of our blog knows we constantly address the issues involved in how workers' compensation liens work within third party (accident and injury) cases. The Supreme Court continued; "North Carolina's statute, therefore, is pre-empted if, and insofar as, it would operate that way.And it is pre-empted for that reason. The defect in §108A-57 is that it sets forth no process for determining what portion of a beneficiary's tort recovery is attributable to medical expenses. Instead, North Carolina has picked an arbitrary number--one-third--and by statutory command labeled that portion of a beneficiary's tort recovery as representing payment for medical care. Pre-emption is not a matter of semantics. A State may not evade the pre-emptive force of federal law by resorting to creative statutory interpretation or description at odds with the statute's intended operation and effect." "North Carolina's argument, if accepted, would frustrate the Medicaid anti-lien provision in the context of tort recoveries. The argument lacks any limiting principle: If a State arbitrarily may designate one-third of any recovery as payment for medial expenses, there is no logical reason why it could not designate half, three-quarters, or all of a tort recovery in the same way." WOS v. EMA 568 U. S. ____ (2013) Thanks to these courageous attorneys who have spend incalculable hours helping a client, a child and a state.