On November 3, 2013 O'Malley Tunstall will help host the Second Annual Wags 4 Tags Eat.Bid.Drink Fundraiser at On The Square Restaurant in Tarboro, NC. Wags 4 Tags unites rescued dogs from kill shelters and trains them to be companion dogs with psychologically and emotionally impaired Veterans in North Carolina. Please contact Wags 4 Tags at their website or at [email protected] for more information. see Wags4Tags Wags 4 Tags is a great organization with an awesome mission statement:
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.
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. 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.
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.
O'Malley Tunstall, PLLC are Silver Sponsors of the Vidant Heritage Hospital Development Council Annual Gala to be held on April 14th at the Edgecombe Community College. The Vidant Heritage Hospital Development Council raise money each year for projects which benefit the local community and the local hospital. This year will be the second of three years in which proceeds will benefit the expansion project of our existing Emergency Room at the renamed Vidant Edgecombe Hospital (formerly Heritage Hospital) which benefits all citizens of Edgecombe County. Last year, more than 23,500 patients were treated at the Vidant Edgecombe Hospital Emergency Department. The annual Gala directly helps raise money for facility improvements and expansions and programs and resources supported by our local hospital. Pictured below is Susan O'Malley and Joe Tunstall presenting their sponsor check to Bob Nicolosi, Chairman of the Friends of Vidant Edgecombe Hospital. Please come out in support of this worthy cause on April 14th at the Edgecombe Community College. Please click for contact information.