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Posts tagged "products liablity lawyer"

Coin Sized Button Battery Child Swallowing Danger: Parents Beware!

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 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.

Cross Examination in an automobile collision or personal injury trial

Learning to do a cross examination is like learning to do anything else; you must practice, make mistakes and then learn from those mistakes to correct and hone your craft. If you ask a practicing trial lawyer, most will agree that learning to do a good direct examination that appears like a conversation, elicits the necessary information and does not result in constant objections is more difficult to master than a laser cross examination, however, even when you muddle through a direct, rarely can you do significant harm to your case like a poor cross examination. Below find the rules I keep posted in my trial cheat notebook. 1. Laser focus your cross examination. 2. Lead the witness, cross examination is not a direct examination. 3. Always complete your question with a yes or no answer only. 4. Follow your own order. 5. Start with eliciting helpful information for your case. 6. Don't overreach. Cross Examination is not a direct examination where you attempt to obtain information by asking open ended questions that allows a witness to answer in sentence or paragraph form. A good cross examination is a laser focused examination of what a witness has already testified to that allows you to question, exacerbate or challenge already given testimony. The work mistake I have seen over the years by adverse counsel in their cross examinations of my clients involve forgetting the point of cross examination and turning their examination into a deposition of my client. Cross examination is not the time to learn information nor is it a time to obtain information about my client that you did not already know. The old adage "Never ask a question at trial you don't know the answer to" is imperative when you are attempting to question a hostile witness. If you ask an open ended question whereby you are attempting to elicit information, you give that person an opportunity to spin and frame their answer in such a way that negatively impacts upon your case, i.e. you are no longer doing your job. Cross examination, when done correctly, does not have to go on forever. In fact, if you look at the rules I use for my own cross examination, you will see I attempt to remind myself at every stage not to over embellish my cross examination. I have seen an expert derailed in a few short questions and seen trials turn with a one sentence cross. The second biggest mistake I have seen in cross examinations is to forget how to frame your questions. If you are representing someone in a courtroom than you have some advance notice of the facts of your case. The only real exceptions to this rule are prosecutors in criminal district court who have the unenviable task of framing their cross examination while an officer whispers the true facts of the case in their ear. That exception aside, we are paid to prepare our cases in advance of the hearing or trial. For cross examination that involves becoming familiar with all the facts of the case, pouring over each witnesses testimony or potential testimony if not prior deposition was given and then framing every question for that witnesses in such a way that they; a. give positive information that helps our case first, b. that we shape our other questions in such a way they can only give a yes or no answer, but the question itself suggests the answer or facts. For adverse witnesses you must lead them in the direction of the answer you want them to reach by the way you ask the question. You may interject your own beliefs, thoughts and especially interpretations of the facts as you ask your questions. You must always keep in mind your audience. In front of a judge in a bench trial I have a lot more latitude with cross but I don't need to exhaust a subject or emphasize a point the way I like to do with a jury. Often in a short cross examination I may pause after asking an important question for upwards of fifteen or twenty seconds while I look at either the witness or the jury. Fifteen or twenty seconds can seem an eternity, but not long enough to get a judge to make you move on. In an automobile collision case where a young twenty-two or three year old witness was testifying that his mother had the green light my cross was two questions. First, Mr. Taylor isn't it true that you were sitting in the backseat immediately behind the passenger seat as you approached the intersection. Second, I'm sorry you broke your arm from the impact of this collision; I'm assuming a good young man like you would never have made a claim against your own mother, you didn't did you. In that case I really never cared what Mr. Taylor had said about the light being green or red. He was in the backseat and I found it a little ridiculous the defense lawyer was allowing him to testify at all. There were several other witnesses that had already testified my client had the green light. The issue for that case was that there had not been enough impact to cause my client's back injuries. In fact, the pictures of the damage to my client's vehicle were less than impressive. Therefore, I simply wanted to use his testimony to bolster my client's claim that it was a significant impact despite the low visible damage between the vehicles. Getting in that he broke his arm without even having that the main focus of the question was a bonus. Second, in a very anti-lawsuit county, I wanted the jury to understand the son had made a claim for his own damages which had been paid by his own mother's insurance company. This was a gift from the other attorney to put this young man on the stand; I had to take advantage of it without looking like a jerk. Always make sure your questions on cross end with only a yes or no answer. It does you no good to frame your question in such a way that helps you only to leave the door open for a witness to be able to explain away the answer. Yes, a very well prepared witness can always answer with, yes or no and then explain, but rarely does that help them and instead it appears they are trying to talk their way out of the answer rather than giving a good answer. The old lawyer saying is three hours of preparation for every hour of trial is never as true as in cross examination. Spend your cross examination time drafting numerous statements you want the adverse witnesses to say and then turn them into questions. Isn't it true that... is an easy way to ask just about anything. Then don't forget to narrow down your list of questions into a few narrow but powerful statements. Cross is still a laser being used as a paintbrush. You're cutting away the previous testimony to get to the heart of your issue with the witness and leaving a visual image in the jurors' minds. The visual image you want the jury to remember about a witness often does not follow in the same order as direct. You should never start by apologizing to the jury or the witnesses for skipping around, just do it. If you follow the same order as the direct examination you make it easy for the jury but you don't paint the visual image you wanted to paint, instead your helping to paint the other sides visual. Start by eliciting anything helpful. Why, well if I attack you first are you more likely or unlikely to help me? You also should never forget the idea of primacy and recency. I like to start cross by pulling out any fact that could help support my client's version of events and finish with the most helpful negative statements about the witness. This is not set in stone. If the witness has made big points you may need to take those points, those swords used against your client and break them over your knee one at a time without regard for pulling any positive information from the witness, or finishing with an obvious point the witness must agree with that makes their previous point look ridiculous. Don't forget, cross examination is your friend, use it as a tool. You pick the order of questions that best helps your client's position. It is also okay to jump back and forth between two or more unrelated points if you can get concessions or admissions from the witnesses on those points. Learning when to stop a cross examination and when to just not cross examine a witness at all is all about experience. If there is nothing you can gain, no positive point to make or concession your sure to draw out, sometimes it is better not to ask anything. In a civil case often the defense not asking any questions of a lay witness is more powerful than asking if they are friends and if the witness will do anything for their friend. Those questions just aren't helpful as the jury can put themselves in the position of the person testifying for a friend and would be annoyed by the implication the witnesses would lie for a friend. This does not mean you simply don't cross a tough witness. Often young attorneys will not cross a witness if they are unsure how to handle the witnesses and it appears to the jury that the attorney is admitting or consciously agreeing with the testimony. Even if you ask one question and make a point, even a little point, it makes since to ask that question if the witnesses hurt you. Less is often more in cross examination. Don't overreach and try to make the knockout blow in one sentence. The witnesses may not agree that it was a hard impact that could have injured someone, but they may agree with you that several people complained of pain at the scene, that the vehicle was pushed sideways by the impact, that the suddenness of the impact scared them, and that the plaintiff was very nice at the scene. Cross examination can also be the death of a thousand small cuts. I have seen good attorneys cut apart a witness and never go head to head with them. Instead they took individual statements they have made and by getting the witnesses to agree to these statements, that on a whole make them look ridiculous, accomplish more than they could have by attacking them directly. After conducting hundreds of cross examinations in trials and hearings, one resource still stands out; The Art of Cross-Examination by Francis L. Wellman. This book sets out the true art that is involved in examine a witness. I believe this book is now on the fourth edition and it gives a look into the human mind and the way humans interact that explains why attacking someone head on is so difficult. I cannot recommend this book enough. After reading the original book, recommended by my senior partner when I first began practicing law, the idea of attacking a witness through small, organized statements that they must agree with without taking the witnesses statements head on first began to make sense. I have always kept the information learned in this book in the back of my mind as I prepared for more and more cross examinations. One example in the book discusses multiple witnesses to the same incident each having slightly different perspective and thus each remembering the incident differently. You cannot change what someone believes they saw, but you can certainly get them to agree to enough facts so that the jury understands how those similar facts make your client's version of events more credible. The book also talks about the honest vs. dishonest witness. It is almost impossible to truly cross examine the dishonest witness as they will not agree with the facts that are obvious and will continue to push their viewpoint rather than the truth. Remember cross examination should not be about taking a sledge hammer to concrete, but instead like using a laser to cut a distinct line through marble.

North Carolina tainted steroid Fungal Meningitis Outbreak

Our attorneys are looking into the recent multi-state outbreak of fungal meningitis from tainted shots provided by the New England Compounding Center (NECC). The NECC has voluntarily expanded its recall to include all products currently in circulation that were compounded at and distributed from its facility in Framingham, Massachusetts. In North Carolina, three clinics have been identified as definitely receiving the recalled product: • High Point Surgery Center - High Point, North Carolina • Surgical Center of Wilson - Wilson, North Carolina • North Carolina Orthopaedic Clinic - Durham, North Carolina The FDA is currently looking into all products associated with NECC which could include up to 33 facilities in NC. The Centers for Disease Control and Prevention (CDC) has issued a Health Advisory (link), which contains updated information and guidance regarding the multi-state outbreak of meningitis and stroke associated with potentially contaminated steroid medication. As of October 26th the FDA announced serious concerns with the safety of the "clean room" of NECC and concerns about contamination going forward. FDA press release. As of 10/9/12, 13,000 people have been exposed to the steroid medication. 119 cases have been identified in 10 states, resulting in 11 deaths associated with this multi-state outbreak of fungal meningitis. In North Carolina there have been two (2) cases reported to date. Au of 10/23/2012 the associated press was reporting 308 cases with 23 deaths in 17 different states. If you have had an epidural steroid injection at one of the above facilities and have questions regarding your health, please see your doctor as recommended by the CDC. The CDC advises that "Patients have had symptoms generally starting from 1 to 4 weeks after their injection. Not all patients who received the medicine will become sick. Symptoms that should prompt patients to seek medical care include: fever, new or worsening headache, neck stiffness, sensitivity to light, new weakness or numbness, increasing pain, redness or swelling of the injection site." Our experienced drug recall attorneys would be glad to discuss your potential claim with you from our Eastern NC or Raleigh offices or contact us through our website: O'Malley Tunstall.

PI: Injured and now my Hospital wants to sue me rather than take my health insurance.

Often people first call our office out of concern over payment for large medical expenses as a result of an automobile collision that was not their fault.  The law in North Carolina after the passage of HB542 and SB 586 has changed and only a portion of any bill, that amount that is neccessary to satisfy a medical bill, is admissible to prove evidence of medical expenses. Rule 414 Evidence of medical expenses. Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. In the real world, many clients debate whether or not to use their health insurance to pay their medical bills after an injury.  They don't want to use the insurance because it was not their fault, they are afraid of higher premiums and don't want to have the hassle of filing the insurance.  Often, many hospitals take that decision away from the patient by refusing to bill the health insurance regardless of whether the patient would like it billed or whether the patient has already paid for health insurance that should pay the bill. Many insurance companies, such as Medicare, are secondary payors.  That means they pay only if no one else pays.  However, even Medicare states that when a bill is left over 120 days it shall become primary and pay.  In these situations, insurance such as Medicare of the State Health Plan is entitled to obtain reimbursement for all the bills paid by them by the third party at the end of the case. Regardless of the reimbursement provisions (called subrogation) many hosptials take the decision away from the injured party and refuse to bill the person's health insurance hoping for a greater recovery from the at fault party in the collision.  However, the hospital doesn't take the risk of the patient recovering the amount from the at fault person's insurance, instead they often make claims against and sue the patient for the unpaid bill, even though they could have accepted the insurance. The Charlotte Observer has recently written a series of articles on these not-for-profit hospitals suing uninsured persons for their unpaid medical expenses.  Articles.  Another article by the Charlotte Observer even references a veteran with tri-care insurance whom they sued because they could not properly bill the insurance.  Article 2.  In another article Duke University failed to properly code an insurance bill and hired a collection agency to hound and call repediatly a couple who had proper insurance.  Article 3. Forbes Magazine has chosen to call this the Tort-Reform for Hospitals.  In their article they describe that not-for-profit hospitals are obtaining significant benefit from directly suing their patients rather than working with the insurance companies or using low paying health insurance such as Medicaid. Our clients, and many other persons injured through no fault of their own  should worry.  Just because you have been financially stable and smart, it will not prevent  

Personal Injury: I was not at fault and injured, why do I have to release my unrelated Medical Records to the Insurance Defense Attorney?

Whether you must hand over to the defense lawyer your medical records unrelated to the injury you sustained in this accident is often a case specific decision.  In fact, a case by case determination is the way the North Carolina Supreme Court decided this issue should be handled.   In most cases the physician-patient privilege prevents disclosure of medicals records to others.  The physician-patient privilege is rooted in public policy to "encourage the patient to fully disclose pertinent information to a physician so that proper treatment may be prescribed, to protect the patient against public disclosure of socially stigmatized diseases, and to shield the patient from self-incrimination."  Crist v. Moffatt, 326 N.C. 326, 389 S.E. 2d 41(1990). Our Supreme Court has declined to hold "the physician-patient privilege is waived whenever a patient files a lawsuit in which his physical condition is an element of the claim or defense."  Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987).    Instead, our Courts have held that the question of waiver is "to be determined largely by the facts and circumstances of the particular case on trial."  Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987). The physician-patient privilege is statutory. N.C.G.S. 8-53.  This statute protects the information given to your physician unless that information is "necessary to a proper administration of justice."  N.C.G.S. 8-53.  In North Carolina the physician-patient privilege exists "so long as the patient insists on it" and a trial court has not compelled disclosure to necessitate "a proper administration of justice."  Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987), Crist v. Moffatt, 326 N.C. 326, 389 S.E. 2d 41(1990), N.C.G.S. 8-53. Therefore often a hearing must take place when a defendant wants prior medical records to determine whether it is reasonable to waive the privilege protecting them.  If a Judge determines that the defendant's interest in obtaining the records is "necessary to a proper administration of justice" then the records must be turned over regardless of the thoughts of the injured party. Often there is a separate, yet equally important issue, who is going to pay to order and obtain these prior records for the Plaintiff's physicians?  As the legislature and the courts have recently established that the costs to be awarded to the winning or prevailing party are limited to N.C.G.S. 7A-305(d)(10) and (11) and as the statutory costs of procuring medical records are clearly outlined in N.C.G.S. 90-411; these costs are not included in the recoverable costs statute.  Therefore, a Plaintiff may have to pay to obtain their own prior records and then may not be reimbursed even if they win the case.  This result seems wrong - the defense should be required to pay the statutory costs of obtaining the medical records pursuant to N.C.G.S. 90-411.  As there is a clearly denominated amount to obtain the medical records that the legislature has stated is reasonable in nature  N.C.G.S. 90-411 then it is only reasonable that the Defendants pay to obtain said records as this cost should be added to N.C.G.S. 7A-305(d)(10) and (11).

Pradaxa: Drug for atrial fibrillation high incident of blood clots or strokes

Pradaxa is an anti-coagulant, or blood thinner, used to prevent blood clots and strokes in people suffering from an irregular heart beat known as atrial fibrillation. With atrial fibrillation, patients have a higher risk of forming blood clots which can travel through the body and cause strokes. Pradaxa is used to lower the chance of blood clots forming.
Pradaxa is manufactured by German drugmaker Boehringer and just received FDA approval last year.  Unfortunately, severe problems with the drug are already being reported as Pradaxa is proving to cause excessive internal bleeding.  The FDA is currently investigating Pradaxa.

Car wreck while on the job: Do I have to repay workers' compensation?

If you were involved in an automobile wreck, not your fault, while  workering for your employer in North Carolina, you may not have to pay the workers' compensation back the full amount of their lien.  Often the question comes down to fairness and the amount of the recovery, the relative fairness of the recovery and the the future medical expenses are just some of what must be considered. If you are in such an accident, please see an attorney who handles both workers' compensation and personal injury law as per N.C.G.S. 97-10.2 often a hearing can be held with your local judge to determine what, if any, that judge would require you to repay workers' compensation. N.C.G.S. §97-10.2(j) gives the trial court discretion to determine how settlement proceeds are to be distributed.  The trial court may reduce or even completely eliminate a workers' compensation lien if the facts warrant, and appellate courts may not interfere with such an exercise of discretion -- except in extreme circumstances in which discretion has been abused.  Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990); Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004). LEGGETT v. AAA COOPER TRANSPORTATION INC was one of the most recent cases on this issue and handled by O'Malley Tunstall, PLLC.  In this case the workers' compensation carreir had their lien reduced to zero and appealed.  The North Carolina Court of Appeals upheld the judges' ruling. In deciding whether to reduce or eliminate a workers' compensation lien, the trial court "is to make a reasoned choice, a judicial value judgment which is factually supported...[by] findings of fact and conclusions of law sufficient to provide for meaningful appellate review."  Id. Our Supreme Court has often stated the test to be used when determining whether discretion has been abused: Generally, '[t]he test for abuse of discretion is whether a decision' is manifestly unsupported by reason.' White v. White, 312 N.C.770, 777, 324 S.E.2d 829, 833 (1985), or, 'so arbitrary that it could not have been the result of a reasoned decision[,] State v. Wilson, 313 N.C. 516, 538,330 S.E.2d 450, 465 (1985).'  Little v. Penn Ventilator Company, 317 N.C. 206,218,345 S.E.2d 204, 212 (1986). Most recently the Court found no abuse in discretion in Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004).  In Sherman, the lien was $168,000.00 and the plaintiff had expended $169,806.00 in recovering $1,300,000.00 - the trial court reduced the lien to $55,667 (a third) and required the workers' compensation carrier pay their fair share of the costs in the amount of $56,602.  Id. In Allen v. Rupard, 100 N.C. App 490, 397 S.E.2d 330 (1990), rev. allowed, 328 N.C. 270, 400 S.E.2nd 449 (1991), the lien amount was $40,000.00; and the settlement was $25,000.00.  The court divided the settlement in half, with $12,500.00 going to the workers' compensation carrier and $12,500.00 going to the employee.  The Allen court considered the nature and the circumstances of the incident in which Plaintiff was injured, the nature and extent of Plaintiff's injury (a crushed vertebra which necessitated three surgical procedures on his back), and other circumstances in rendering its decision.  The Supreme Court found no abuse of discretion. In Wiggins v. Busranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450 (1997), Travis Wiggins was killed when a gate fell on him at the Raleigh-Durham International Airport.  It was anticipated that Mr. Wiggins' family would receive approximately $200,000.00 from his employer in workers' compensation benefits.  Mr. Wiggins' estate sued two fence companies claiming that their negligence proximately caused Mr. Wiggins' death.  The case settled for $900,000.00 prior to trial.  The trial court held that Mr. Wiggins' employer could not recover anything from the settlement and had no lien on the third party settlement funds.  The Court of Appeals found no abuse of discretion. In United States Fidelity and Guar. Co. v. Johnson, 128 N.C. App 520, 495 S.E.2d 388 (1998), Melvin Johnson, an employee of the Department of Transportation, died in an automobile accident during the course and scope of his employment.  The Department of Transportation provided workers' compensation benefits to Mr. Johnson's family totaling $148,955.00.  Mr. Johnson's estate filed suit against the third-party tort-feasor to recover damages for his wrongful death.  Mr. Johnson's estate received a total of $372,825.00 in settlement.  At the time of the settlement, the Department had paid $47,045.51 in workers' compensation benefits to Mr. Johnson's family.  The trial court completely extinguished the Department of Transportation's lien, finding that it would be inequitable under the facts and circumstances of the case to allow the Department of Transportation to recover the workers' compensation lien from the settlement proceeds.  The Court of Appeals found no abuse of discretion. In the case of In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), Kimberly Biddix was injured in an automobile collision caused by the negligence of a third party.  Ms. Biddix received workers' compensation benefits in the amount of $16,844.03 and temporary total disability benefits in the amount of $1,874.40.  Ms. Biddix subsequently entered into a settlement with the third party tort-feasor for $25,000.00, which were the limits of the tort-feasor's automobile liability insurance.  The trial court entered an order finding that the settlement did not adequately compensate Ms. Biddix for her injuries and eliminated her employer's lien.  On appeal, the Court of Appeals found no abuse of discretion.      

Introducing O'Malley Tunstall, PLLC: New Name same great Injury and Disability Firm

Susan O'Malley and Joe Tunstall are pleased to announce that their firm has been renamed: O'Malley Tunstall, PLLC. We have a new name for our firm; but we will continue to offer small firm service with large firm capability.  Susan and Joe look at this name change as a way to move forward into 2012 in a positive way keeping our focus on client service and at the same time solidify to our clients the continued existence of this hard charging injury and disability law firm. Susan O'Malley, who is a Board Certified Social Security Disability Lawyer by the North Carolina State Bar, will continue to run our Social Security Disability Section here at O'Malley Tunstall, PLLC.  Susan, whose resume as a disability attorney while extremely impressive, only touches on her true value to her clients as her experience handling Social Security claims is unmatched.  Susan continues to be available for referral or consultation for other attorneys in the area of Social Security disability law.  Prior to focusing her practice on Social Security and Disability law Susan successfully handled workers' compensation claims and jury trials for our injured clients, including being co-counsel on several multi-million dollar verdicts. Our automobile injury and commercial truck injury section will also continue to be lead by Joe Tunstall.  Joe has extensive jury trial experience representing the injured and disabled.  He has tried to verdict and judgment cases from $1 to $5,500,000.00.  Joe is available for consultation or co-counsel arrangements for injury cases. In addition to our automobile and commercial truck injury section, Joe manages our personal injury litigation and workers' compensation sections.  He actively associates with attorneys both within and outside of North Carolina for injury claims and handles referrals for all levels of litigation. Both Susan and Joe continue to be active handling client's appeals in the North Carolina Court of Appeals, North Carolina Supreme Court, Federal District Court and Fourth Circuit Court of Appeals.  Often Susan and Joe handle client's appeals without the appeal  costing the client any additional attorneys' fees.  Give our office a call and one of our attorneys will explain how. Therefore, if you have an injury or disability case, take a look at our firm or give us a call as one of our knowledgeable attorneys will answer your question.  O'Malley Tunstall, PLLC will continue a great tradition of client service.

Personal Injury: What do I do about the Damage to my Car?

Several times a week I sit down with a client or a member of the community who wants to know what do they do about the damage to their automobile?  What can they recover for and does the insurance company have to put them back in a similar vehicle?  The other question asked most often is whether they can have a rental vehicle and for how long? The answers to these questions are best examined by the jury instructions given when you try a case like this to a jury. PROPERTY DAMAGES--DIMINUTION IN MARKET VALUE. The plaintiff's actual property damages are equal to the difference between the fair market value of the property immediately before it was damaged and its fair market value immediately after it was damaged.  The fair market value of any property is the amount which would be agreed upon as a fair price by an owner who wishes to sell, but is not compelled to do so, and a buyer who wishes to buy, but is not compelled to do so. (If evidence is introduced regarding the actual or estimated cost of repair, the following paragraph should be used:  Evidence of [estimates of the cost to repair] (and) [the actual cost of repairing] the damage to the plaintiff's property may be considered by you in determining the difference in fair market value immediately before and immediately after the damage occurred.  )   The first jury instruction discusses the loss in value of a vehicle due to the damage.  The jury is instructed as to the definition of market value and told how to consider repairs and told they can consider the repairs when determining the amount of loss in value.  The jury is also told to consider not that the victim should be given the value of the vehicle to them, or how many payments they made, but instead what two people would negotiate the value to be if they were not forced to negotiate. PROPERTY DAMAGES NO MARKET VALUE--COST OF REPLACEMENT OR REPAIR. NOTE WELL:  Use this instruction where there is no market by which the degree of damage to the property can be measured.  1Where repair or replacement does not provide a realistic measure of the plaintiff's loss (such as where the property cannot be repaired or replaced, or where it has primarily or exclusively intrinsic value), use N.  C.  P.  I.  --Civil 106.  66. The plaintiff's actual property damages are equal to the amount reasonably needed to [repair the damage to the property]2 [replace the property damaged]3, less [the salvage value of the [property] [parts replaced]] [the accumulated depreciation4 on the property replaced].   PROPERTY DAMAGES--NO MARKET VALUE, REPAIR OR REPLACEMENT--RECOVERY OF INTRINSIC ACTUAL VALUE. NOTE WELL:  Use this instruction where damages measured by market value would not adequately compensate the plaintiff and repair or replacement would be impossible (as where items such as a family portrait are destroyed) or economically wasteful (as where obsolete property is damaged beyond economically feasible repair).  1 The plaintiff is entitled to recover the actual value of his property immediately before it was damaged (less the salvage value, if any, that it had after its damage).  The actual value of any property is its intrinsic value; that is, its reasonable value to its owner.  2In determining the actual value of the plaintiff's property, you may consider: [the original cost of (labor and materials used in producing) the (specify property)] [the age of the (specify property)] [the degree to which the (specify property) has been used] [the condition of the (specify property) just before it was damaged] [the uniqueness of the (specify property)] [the practicability of [repairing] [reconstructing] the (specify property)] [the cost of replacing the (specify property) (taking into account its depreciation; that is, the degree to which it had been used up or worn out with age)] [the insured value of the property]3 [the opinion of the plaintiff as to its value] [the opinion of any experts as to its value] [state other appropriate factors supported by the evidence4]. You will not consider any fanciful, irrational or purely emotional value that (specify property) may have had.   The last sentence is my favorite.  You should not consider the emotional value of property... Although people often become very attached it items, such as family heirlooms, our courts are very clear that we are not to consider the emotional attachment to property.   PROPERTY DAMAGES--LOSS OF USE OF VEHICLE.  1 The (state number) issue reads: "What amount is the plaintiff entitled to recover for loss of use of his (describe vehicle)?" The plaintiff's actual property damages may also include compensation for the loss of use of his vehicle.  (Here give the applicable alternative statement (give only one:  ) [Repairs possible at reasonable cost in reasonable time.  When a vehicle, damaged by the negligence of another, can be repaired at a reasonable cost and within a reasonable time, the owner may recover for the loss of its use.  The measure of such damages is the cost of renting a similar vehicle during a reasonable period for repairs (whether or not the owner actually rented such a similar vehicle). [Total destruction or repairs improvident.  When a vehicle, by the negligence of another, is totally destroyed as a conveyance (or if for some reason repairs would be so long delayed as to be improvident), the owner may recover for loss of use only if a substitute vehicle is not immediately obtainable.  If a substitute is not immediately obtainable, the owner may recover for loss of use during the period reasonably necessary to acquire a substitute.  The measure of such damages is the cost of renting a similar vehicle during such period (whether or not the owner actually rented such a similar vehicle)]. [Owner elects to replace repairable vehicle.  When a vehicle, damaged by the negligence of another, can be repaired at a reasonable cost and within a reasonable time, but the owner elects to replace it by acquiring a substitute vehicle, the owner may recover for loss of use during the time reasonably required to make repairs or to acquire the substitute, whichever is shorter.  The measure of such damages is the cost of renting a similar vehicle during such period]. (Do not use the following paragraph unless the evidence justifies.  ) (In such a situation, if the owner proves that he made a reasonable effort to obtain a substitute vehicle but was unable to do so within the area reasonably related to his business, and further proves with reasonable certainty the profits he lost through inability to use the vehicle, he may recover, in place of the cost of rental, such profits lost during a reasonable period within which to [make repairs] [obtain a substitute not immediately obtainable].  )   The last instruction is often the one that people are most confused about... can you get a rental car?  Yes, but only if the repairs and the amount of time to repair the vehicle is reasonable.  You cannot keep a rental beyond a reasonable amount of time to repair your car.  What is a reasonable time?  The courts leave that for the jury to determine.   What, if anything, should we get out of these instructions to be given the jury by the judge with regard to use of a vehicle?  Well, first, market value of your vehicle is all that is important.  Therefore, you cannot allow yourself to make a bad deal purchasing a vehicle or your pain could make you become a victim twice. The other way to become a victim twice is by allowing yourself to have to report the damage to your vehicle without obtaining the diminution in value. N.C.G.S. 20 71.4. Failure to disclose damage to a vehicle shall be a misdemeanor: (a) It shall be unlawful for any transferor of a motor vehicle to do any of the following: (1) Transfer a motor vehicle up to and including five model years old when the transferor has knowledge that the vehicle has been involved in a collision or other occurrence to the extent that the cost of repairing that vehicle, excluding the cost to replace the air bag restraint system, exceeds twenty five percent (25%) of its fair market retail value at the time of the collision or other occurrence, without disclosing that fact in writing to the transferee prior to the transfer of the vehicle. (2) Transfer a motor vehicle when the transferor has knowledge that the vehicle is, or was, a flood vehicle, a reconstructed vehicle, or a salvage motor vehicle, without disclosing that fact in writing to the transferee prior to the transfer of the vehicle. (a1) For purposes of this section, the term "five model years" shall be calculated by counting the model year of the vehicle's manufacture as the first model year and the current calendar year as the final model year. Failure to disclose any of the information required under subsection (a) of this section that is within the knowledge of the transferor will also result in civil liability under G.S. 20 348. The Commissioner may prepare forms to carry out the provisions of this section. (b) It shall be unlawful for any person to remove the title or supporting documents to any motor vehicle from the State of North Carolina with the intent to conceal damage (or damage which has been repaired) occurring as a result of a collision or other occurrence. (c) It shall be unlawful for any person to remove, tamper with, alter, or conceal the "TOTAL LOSS CLAIM VEHICLE" tamperproof permanent marker that is affixed to the doorjamb of any total loss claim vehicle. It shall be unlawful for any person to reconstruct a total loss claim vehicle and not include or affix a "TOTAL LOSS CLAIM VEHICLE" tamperproof permanent marker to the doorjamb of the rebuilt vehicle. Violation of this subsection shall constitute a Class I felony, punishable by a fine of not less than five thousand dollars ($5,000) for each offense. (d) Violation of subsections (a) and (b) of this section shall constitute a Class 2 misdemeanor. (e) The provisions of this section shall not apply to a State agency that assists the United States Department of Defense with purchasing, transferring, or titling a vehicle to another State agency, a unit of local government, a volunteer fire department, or a volunteer rescue squad. The Mandatory Disclosure Statute requires reporting either to a retail buyer or to a dealership.  Where significant damage must be disclosed by law this reduces the value of the repaired vehicle in a very real way. The court must allow the introduction of repair costs or estimates to repair into evidence to help prove this loss in value.  This issue was first addressed in U. S. Fid. & Guar. Co. v. P. & F. Motor Express, 220 N.C. 721, 18 S.E.2d 116, 117 (1942)  where the court determined whether evidence of an estimate of the cost of repairing an injured automobile competent upon the issue of the measure of damage? "In determining the depreciation in value of a motor vehicle as the result of an injury, the jury may take into consideration the reasonable cost of the repairs made necessary thereby, and the reasonable market value of the vehicle as repaired.  In excluding the evidence indicated there was error for which there must be a new trial." U. S. Fid. & Guar. Co. v. P. & F. Motor Express, 220 N.C. 721, 18 S.E.2d 116 (1942). This issue was most recently addressed again in Smith v. White, 712 S.E.2d 717 (N.C. Ct. App. 2011).  In Smith Plaintiff claimed that his motorcycle suffered a diminution in value due to the accident, despite repairs to the motorcycle. Upon defendant's objection the trial court excluded evidence of the actual cost to repair plaintiff's motorcycle. After hearing post-trial motions by plaintiff and defendant the trial court, citing U.S. Fidelity & Guaranty Co. v. P. & F. Motor Express, Inc., 220 N.C. 721, 18 S.E.2d 116 (1942), concluded that evidence regarding the cost of repairs should not have been excluded and granted plaintiff a new trial on the issue of diminution in value.  Smith v. White, 712 S.E.2d 717, 719 (N.C. Ct. App. 2011).  The Defendant appealed. The Court in Smith compared the evidence of damage to the Plaintiff's motorcycle in Smith to that of the damage to the car in the Fidelity case.  The issue for the Court was whether evidence of estimated cost of repair, as opposed to actual cost of repair already paid, should be admitted. Citing Fidelity, the Court held "[a]s to that issue, the Court stated even though 'evidence of such an estimate of the cost of repairs might not be as convincing as evidence of the cost of the actual repairs, we think this difference relates to the weight thereof rather than to its competency.' Id. at 723, 18 S.E.2d at 117. The Court made clear that where repairs have been made and paid for, such evidence is admissible to show the measure of damages."  Smith v. White, 712 S.E.2d 717 (N.C. Ct. App. 2011).

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