Preparing Injury Cases

A judge helped me understand how to handle a personal injury case early on in my career.

“Get their reserves up,” the judge advised me while I was in the courtroom waiting for the jury to return their verdict in a case that I had just tried in front of him. We were killing time and he was a kind man giving me helpful advice. He advised giving the insurance company all of the information helpful to my case as soon as possible, rather than holding back any surprises for trial. This judge, a former insurance company lawyer, knew how the system worked.

Let’s look at the big picture. In order to efficiently file and settle claims, you must understand what is going on behind the scenes. It all begins with the insurance company. You pay monthly premiums to the insurance company and those monthly premiums are then invested. The insurance company earns money on those investments and by not by paying out claims. They are forced to however, set aside a portion of each premium dollar to pay claims with, which is called “reserves”. Once the amount of reserves is decided on, the rest of the premium dollars go into investments. Insurance companies spend a lot of time determining these reserves and do not like to change the amounts once they have been set aside.
With this insight, it is clear that you should promptly present the insurance company with all of the information that will cause them to set aside a large amount of reserves, or money to settle your case. If you can use your know-how to get them to put a high value on a claim, the insurance adjuster will not have to request that more money be set aside later on. Adding money to the reserves from their investment money upsets the insurance company because they had the additional money invested, making a profit for them. They didn’t plan to pay it to you, and so that makes the insurance company mad and the adjuster look bad. “Why didn’t you evaluate this claim correctly at the start?” is what the insurance company will ask their adjuster. He looks bad and is not likely to be able to get more money for you, even if he or she wants to. So, “Get their reserves up!”

It’s that simple. As a Charleston car accident attorney, knowing how the system works, and knowing how to work the system, makes a personal injury claim much easier to settle.

If you or a loved one has been injured in a car accident, contact a personal injury lawyer in Charleston.

Hip replacement surgery is a complicated procedure that involves anesthetics and an incision 8 to 10 inches long, but it comes with a 95% success rate. That high success rate is necessary because of all the complications and dangers that come with each hip replacement revision surgery.

However, while the success rate is high, recalled or faulty devices could still cause an early need for hip revision surgery. DePuy Orthopaedics ASR XL patients experienced an early failure rate of 12-13% within the first five years of having the implant, compared to the industry standard 5%.

As a North Charleston personal injury lawyer, I take hip revision surgery due to a recalled device very seriously because of the potential complications from the surgery.  Some of those complications include, but are not limited to:

• Formation of blood clots from immobility
• Respiratory issues from pieces of fat from the bone marrow get into the bloodstream and move to the lungs where they cause serious breathing problems
• Infection and bleeding
• Numbness due to nerve damage
• Bone breaking or splintering
• Post-surgical dislocation

When an implant fails early, the dangers will continue for a lifetime, as each revision surgery gets more complicated. If you or a loved one have been affected by an early-failing hip implant, contact a North Charleston personal injury lawyer.

As a Columbia personal injury lawyer, I would like to share with you the case summary of Hutson v. S.C. State Ports Authority

Workers’ Compensation: Two ways to recover for disability

Under the Workers’ Compensation Act in South Carolina, there are two forms of recovery for permanent disability resulting from a work-related the injury. A Claimant may recover for a specific disability claim or a general disability claim.  To recover for general disability, the injured worker must show a loss in earning capacity as a result of the injury. Alternatively, an injured worker may recover for a specific disability resulting from the loss or loss of use of a specific body part, whereby disability is presumed, and no actual loss of earnings need be proven.

In a recent case, the South Carolina Court of Appeals held there was substantial evidence to support the Full Commission’s finding the injured worker failed to prove a loss in earning capacity when by his own testimony he had plans and the ability to open a restaurant and earn at least as much as he was earning prior to his injury, even though he had yet to implement his plans and had otherwise to that point had only made unsuccessful applications for work at a grocery store, a plumbing company, and a landscaping business.

Hutson v. S.C. State Ports Authority, No. 4737 (S.C. Ct. App. September 8, 2010). There was evidence submitted establishing loss of earnings, including a vocational expert opinion the injured worker was disabled.  The Commission in fact indicated that but for the injured worker’s own testimony regarding his future plans, it would have found he proved he was generally disabled. Because of his own testimony, however, the court affirmed the lower court’s denial of recovery based on loss of earning capacity. However, the injured worker did suffer from a permanent loss of use to both his back and leg, and court held that the injured worker was entitled to a specific disability award for both of those body parts and remanded the case back to the Commission for additional findings.

The lesson: As a South Carolina work injury lawyer I stress the importance of examining the two forms of recovery for a permanent disability claim resulting from a work-related injury, and ensure you have evidence of loss of earnings if you are claiming general disability.  It is also important not to overstate your potential earnings to the Commission, and rely on actual earnings and expert reports and opinions.  In this case, a Claimant’s future plans and goals were accepted as concrete proof of his ability to earn high wages, when his actual ability to earn wages to date was significantly less.

As a personal injury lawyer in South Carolina, I would like to share with you the recent case summary of Nakatsu v. Encompass Indemnity Co. No 4748 (S.C. Ct. App. September 29th, 2010).

Underinsured motorist coverage (UIM) is coverage that you buy for yourself and your loved ones, in case someone else negligently hits you with their car and your injuries exceed the amount of liability coverage the at-fault driver carries. For example, you would probably recover from your underinsured motorist coverage if your injuries were bad enough to cause you to spend several nights in the hospital, but the at-fault driver carried only minimum limits insurance coverage. If your injuries from the car accident are severe enough, in some situations you may even be able to recover from multiple UIM policies, even from cars that had nothing to do with the collision. When you recover from multiple UIM policies, this is called “stacking”.

The general rule in South Carolina, prescribed by the statute S.C. Code Ann. section 38-77-160, says that  when you meet the other requirements for stacking, you can “stack” up to the limits of the vehicle involved in the collision. For example, if you carried $25,000 in UIM coverage on the vehicle you were driving in the collision, and your spouse had $50,000 on their vehicle (that was not involved in the collision), you could recover up to $25,000 from your own UIM coverage and only up to $25,000 from your spouse’s UIM coverage. Remember that these coverages apply only after the at-fault driver’s liability insurance coverage has been exhausted.

In a recent case, the South Carolina Court of Appeals held that an insurance company could not limit this system of stacking as provided in the above statute. Nakatsu v. Encompass Indemnity Co., No. 4748 (S.C. Ct. App. Sept. 29, 2010). An insurance policy is essentially a contract between the insurance company and the insured, and many argue that two parties entering into a contract should be able to choose whatever terms of the contract they wish. However, in certain situations, the court system will not allow parties to enter into a contract that destroys a statutory scheme carefully laid out by the state legislature. The court in this case did exactly that: they declared a provision in the insurance policy invalid because the provision attempted to limit stacking of UIM coverage that is allowed by statute.

When it comes to car accidents, particularly fatal accidents, there aren’t always witnesses to help investigators determine the chain of events leading up to the crash.  Often times, a family is left without any sense of closure after the loss of a loved one, struggling to understand who was to blame.  Over the last 15 years, South Carolina has assembled the second largest accident reconstruction team in the nation.  The team is called M.A.I.T which stands for Multi-Disciplinary Action Investigation Team.

The team is normally called to investigated fatal accidents or felony DUIs, particularly is charges could potentially be filed against the at-fault driver.  They use a “total station” to measure and map the accident scene.  Then, they take that information to work from reverse and establish a computer model of the events surrounding the crash.  According to this news report, that data can be used in court to make convictions or acquit someone who was falsely charged.  Members of the team are often called upon to act as experts and testify in court.

Reconstruction has been made easier in recent years by the implementation of data recorders in many newer vehicles. In one instance, they found that a driver didn’t so much as tap their brakes before a fatal accident and even accelerated to 120 mph.   As a North Charleston personal injury lawyer, I have handled many cases in which a reconstruction expert was able to prove fault so that my clients could obtain the compensation they deserved.

The July 28, 2010 S.C. Court of Appeals decision in Johnson v. Horry County Solid Waste Authority, provides updated precedent regarding two important issues in many personal injury cases: (1) whether evidence of drug or alcohol use will be admissible to the jury and (2) the weight which commercial driver’s license manual (CDL) violations are given by the jury.

Admissibility of intoxication:  In this case, the Court clarified the evidentiary “floor” and “ceiling” in evaluating whether evidence of drug or alcohol use of a party will be admissible to the jury.  In Lee, our state Supreme Court allowed evidence of blood alcohol level when there was substantial corroborating evidence that blood alcohol content was a factor in the case before the jury.  In Kennedy, our state’s Court of Appeals excluded evidence of toxicology when there was no corroboration of marijuana use or its impact on the accident before the jury.

The evidence was excluded as being more prejudicial than probative under Rule 403 of the Rules of Evidence.  In the Johnson case, the facts were determined to fall somewhere in between the two extremes of the precedent cases, but the Court found that while the evidence of the plaintiff’s intoxication was relevant and somewhat probative, it was more prejudicial than probative, because there was little evidence that her intoxication played a factor in where she was standing at the time of impact.  Therefore, the evidence was properly excluded by the trial court.

Jury instruction on CDL violations:  While the Court of Appeals found that the trial judge made an error in charging the jury that they could consider violations of the South Carolina CDL Manual and read portions of the manual to the jury (because the CDL Manual itself is not state law), the jury instructions when read as a whole do not prejudice the County by improperly raising the standard of care placed upon its driver.  The instruction overall charged the jury to hold the driver to the standard of a person of ordinary reason and prudence in the same situation.

This case provides injured persons with a precedent for excluding evidence of intoxication when it can be shown that the plaintiff’s intoxication has little to do with the cause of the accident.  It also provides injured persons with an approved overall jury instruction that points out violations of the CDL manual as a relevant consideration for the jury.  As a South Carolina personal injury attorney, I’ve seen many cases where the defendant driver is a commercial driver, and such violations of CDL and other regulations are important evidence in proving negligence.

As is often the case in serious personal injury cases, claims are made upon multiple parties and multiple layers of insurance coverage.  It is common, for a variety of reasons, to reach a settlement with some parties or layers of insurance coverage with the intent of partially releasing certain parties or insurance policies while leaving open the ability to go forward with trial in order to collect from remaining parties or insurance policies.

This enables injured victims to collect partial recovery of their damages without delay from those policies ready to settle, while continuing the case in pursuit of additional coverage. In the July 19, 2010 S.C. Supreme Court decision Fowler v. Hunter, the Court reviewed the lower courts’ decision regarding a settlement between a couple who were seriously injured when their motorcycle was struck by a doctor’s wife in a car owned by the doctor’s medical practice.

In the settlement agreement, the plaintiffs agreed to release the doctor’s wife and business from exposure to the execution of any judgment obtained at trial in exchange for the policy limits of the automobile liability policy (one million dollars), the policy limits of the doctor and wife’s personal umbrella policy (two million dollars) and a tender of one and a half million dollars from a commercial umbrella policy on the doctor’s medical practice.

Additionally, the Fowlers received as consideration in the settlement an assignment of claims the doctor and doctor’s insurance company had against the commercial umbrella policy agent for failure to properly fill out the commercial umbrella policy application.  This alleged professional negligence on the part of the agent deprived the doctor coverage of up to four million dollars.

As a result of this settlement agreement, the plaintiffs were able to receive 4.5 million dollars in exchange for the rights to pursue a jury trial judgment and professional negligence claim that could potentially recover the remaining 2.5 million dollars in coverage under the commercial umbrella policy.  The doctor’s wife, doctor and insurance companies would all be free from further exposure, and the only remaining exposed party would be the insurance agent.

The agent moved for summary judgment arguing that because the settlement technically removed the risk of exposure from the doctor’s medical practice or to the insurance company, it could not be proven that his mistake damaged the doctor or his insurance company.  In other words, that the settlement removed a necessary element of the negligence claim—damages.  The trial court agreed and granted summary judgment, but the Court of Appeals reversed.

The Supreme Court agreed with the Court of Appeals that the case should be allowed to go forward against the agent.  Because South Carolina courts favor settlement, as long as there is no collusion involved, such settlement agreements will be honored.  The remaining parties will not be allowed to defeat the assigned claims by technicality.

As a personal injury lawyer in South Carolina, I believe this case is a victory for injured persons who desire to resolve claims with some parties or layers of coverage while leaving open the right to pursue remaining parties or coverage.  Agreements negotiated fairly, without collusion, will be enforced by our courts.

Depositions are one of the tools that lawyers use in preparing a case for trial to gather more facts about the case. The non-legalese word for deposition might be “interview”. In a deposition, the “deposing lawyer” interviews the “deponent”. The deponent is a witness who knows something about the underlying facts of the case or about some specialized field that is relevant to the case. If the deponent has his own lawyer, the deponent’s lawyer should prepare the deponent on what to expect. The deponent’s lawyer also has the opportunity to ask the deponent follow-up questions after the deposing lawyer has finished.

In the fall 2009 South Carolina Justice Bulletin attorney Don Keenan published an article about witness preparation and how important witness preparation is to the cases that we handle for our clients and the outcome of these cases. Mr. Keenan highlights a five point deposition preparation method that he uses for each client.

1. Client Misconception. Inform the client of the deposition process. Advise them that the court rules protect them and that they will be able to tell their truth in a clear way.
2. Client Guilt. Defense attorneys attempt to prey on client guilt. Prepare the client for this ahead of time.
3. Client Major Truths. Figure out the defense’s best five to seven points of attack against your client’s case. Then during deposition preparation have the client recite every fact that disproves the defense point. Then at deposition the client can rely on his or her major truths to answer any question. This will avoid rambling and confusing or angry answers at the deposition by the client.
4. Mock Deposition Drills. Prepare the client prior to the deposition by asking the client the questions that you believe that the defense will ask them. This allows the client to become confident in answering questions.
5. The Promise. Promise the client that when the day of deposition comes, that if the client does not feel well or fully prepared, the deposition will be postponed. This gives the client confidence to know that you would not go forward if the client was not ready to do so.

Mr. Keenan also stresses asking open ended questions and the discipline of silence especially in wrongful death claims. Let the client sit and think and the client will eventually give more detail and more depth of emotion in answering the question.

With regard to clients with injuries it is important to run through a list of what the client cannot do anymore due to the injuries the client suffered in the accident. However it is also important for the client to spend time examining what the life that remains for the client is.

For our practice it is important to meet with and prepare clients for deposition or trial testimony. All clients are nervous and some are scared by the thought of giving sworn testimony. It is important to spend time with them, and by following the above outline we can do our clients a great service that will strengthen their case and build a bond between the attorney and the client.

The information relayed in this blog is for educational purposes only and is not legal advice. The cases referenced and explained by the blog’s author(s) are for informational purposes only and are not intended to imply that certain, or similar, results may be achieved in each client’s case.