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).
As I picked a jury this afternoon in an automobile accident collision case, I thought of the basics. What am I trying to tell this jury about my case? What am I trying to explore in this jury panel? If you ask attorneys who actually try a lot of cases, they will explain that voire dire or jury selection is part science but mostly an art, developed by actually picking juries. Some people are born to talk to twelve people about their client's case and can do so in such a natural way that the jury is drawn to them like a moth to a flame... Others, and I fall into this category, must work on picking a jury and constantly feel awkward and unnatural. Asking questions and keeping the jury discussing issues when they would like to be doing anything but sitting there answering your questions is difficult. Jury selection so that the jury stays interested ramps up the difficulty. You pick a civil jury after lots of hours of case preparation, development, depositions of all the parties and a really informed idea as to what you want to do with your case... or at least that is the preferable idea. In many cases, the issues present themselves over time or dissolve or fail to dissolve as the evidence is pulled out of the various witnesses. When I'm picking a jury I am constantly having to slow myself down as I want the best jurors possible, I also, due to all the preparation, want to get started with my trial. That is a mistake and one I deal with in every trial. You cannot move past jury selection or for that matter any other part of a trial. Each part, opening, closing, jury selection or each witness interviewed must be given whatever amount of time it takes to finish. What questions are really relevant? After over fifty automoible trials, I'm more interested in the people on the panel and how they are going to interact with each other and what those people are going to think about my client than specific questions. Nice, hard working people with a good work history who do not have a history of causing automobile accidents are honestly who I want, I want people like my clients. Many of my clients have great work histories, work hard and try to get better and back to their normal lives as quickly as possible - just looking for more people just like they are
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.
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.
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.
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.
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.
The trial of an automobile accident case is very often difficult on the client and their family. The great majority of my clients have never had there credibility, integrity and memory tested in front of a group of people they don't know. Often they have never been to court before and the entire process is new and disturbing to them. After over fifty (50) jury trials in personal injury cases one thing is certain; those clients who can stay focused, prepared and above all keep their tempers fair well regardless of the outcome. Juries are merely a manifestation of a segment of our population. It is what makes a jury verdict so indicative of what we believe should happen and at the same time magnifies every jurors personal experience. In North Carolina attorneys get to question the jury verbally about their prior experiences, bias and feelings on serving on the jury. The client often gets to witness this portion of the trial called voire dire or jury selection. I try to get my client involved at this point in the process for quite a few reasons including and especially to get my client familiar with how it feels to answer questions in front of a group. Answering personal questions is difficult. Client's who do well on the stand all seem to answer the questions without fighting the person asking the questions. Asking the adverse attorney why they are asking a question, arguing with them about your answer or denying obvious inconsistencies lead to loosing credibility even when there is nothing wrong with the testimony. Although it is difficult, slowing down your answers and making sure that you are being honest and open with the jury will go along way. Don't fight over the questions, merely answer them to the best of your ability no matter which attorney is asking you questions. The defense attorney's job is often to create doubt in the minds of the jurors as to the amount and type of damages recovered. Jurors, like the rest of us, want to know that we are doing the right thing. If a defense attorney makes it appear as if someone was injured less than they truely were, the defense attorney has done their job. One way clients fall into the insurance defense attorney trap is by their body language. Regardless of the actual answers to the questions, the way, manner and appearance given while answering questions is very important. Do you appear angry? Are your arms folded across your chest? Do you appear to care about the trial? Do you act inappropriately injured (more or less injured than the doctor will testify about your injuries). All of these considerations go into the jury's decision to award damages. The jury has to like a plaintiff or at least identify with a plaintiff in order to award damages. When a client testifies they must be themselves. Their language should match how they normally speak. In other words, they should not use words they don't typically use as it will be obvious to the jury that they are uncomfortable speaking in that manner. They should also remember why they are there; not to punish a defendant, but instead, to be compensated for the amount of damages they have sustained as a result of the defendant's actions. What is important is their own experiences. Talk about things that are most important to you -- was there a time you could not tie your shoes, vacuum the floor, cook for your family or even drive a car to work? These are all common everyday experiences that jurors can identify and appreciate. Finally, speak clearly and slowly and always understand the question before answering. So many times a client allows themselves to be so nervous they forget to listen to the question before answering. Answering the wrong question helps no one and only decreases your credibility with the jury. Remember, your word, your honesty is all you have with a jury. Don't allow your own frustration at having to testify get in the way.