Sometimes in personal injury law, it becomes necessary to initiate litigation against people you love or care about. The goal is not necessarily to collect money from that individual, but rather to obtain compensation from his or her insurance company.motorbike

Because insurance companies cannot be named as defendants in injury lawsuits until liability has been established, one must name the insured. Sometimes, that individual is someone to whom plaintiff is close.

Many times, those sparring in the courtroom retain no ill feelings outside the doors. What takes place is a formality that allows the injured person to receive compensation for medical bills, lost wages and pain and suffering. Plaintiff must show defendant owed a duty of care to plaintiff and then breached that duty, causing plaintiff’s injury. Continue reading

In Alabama auto accident injury cases, the purpose is to compensate victims for actual losses caused by the defendant. A substantial part of that typically involves payment of reasonable and necessary medical expenses incurred by the injured party as a result of defendant’s negligence. caraccident1

These medical bills have to be authenticated and there has to be competent medical testimony as to the necessity of those treatments. In some states, defendants can benefit from certain write-offs or adjustments that are deducted from the medical provider’s charges due to insurance contractors. However in Alabama, we follow the collateral source rule, which states benefits received by plaintiff from a wholly independent source (i.e., the insurance company), shouldn’t diminish the damages otherwise recoverable by the wrongdoer. So payments or credits received by a third-party payor aren’t credited against defendant’s liability.

California, where the case of Uspenskaya v. Meline was recently heard by the Third Appellate District in Sacramento, allows collateral source evidence as well, but there are some exceptions. Continue reading

A new study of medication errors and adverse drug consequences during surgery at one of the country’s top hospitals has revealed a startling statistic: There was an issue in almost 50 percent of all surgeries. That included minor procedures to to serious open-heart operations. operation

The study, published in the medical journal Anesthesiology, was recently presented to the American Association of Anesthesiologists, where doctors indicated to the study authors that the problem isn’t isolated to this one renowned facility. In fact, it’s a major point of concern at hospitals and surgical centers throughout the country.

The error rate calculated by researchers at Massachusetts General Hospital – 124 out of 277 – was far higher than previously reported. In these cases, one-third resulted in harm or injury to the patient. Three of those incidents were life-threatening. Two of those were caught by the staff in the operating room, while a third was caught by researchers. No one died as a result of these errors, but the message seems quite clear: They likely could and probably do in procedures across the country. There just isn’t a team of researchers standing by to watch. Continue reading

Legislative action is planned again for next year to reintroduce a state measure that would quantify the legal amount of drugs allowable in a driver’s system.

The bill was introduced in the 2015 session as S.B. 162. As it was written for the last session, there would be further definition of the term “under the influence” in Ala. Code 32-5A-191 that would specify and prohibit “measurable amounts of specific substances in a person’s body.”

The action would also require minimum mandatory sentences for fourth or subsequent violations and would remove the requirement that a prior conviction would need to occur within the last five years in order to be considered. The law would state that it would be illegal to drive under the influence of any substance or substances that would render him or her incapable of safely driving.

Plaintiffs in the recent Alabama Court of Civil Appeals case of State Farm Mutual Automobile Insurance v. Brown were seriously injured in a car accident with an at-fault driver who was underinsured, meaning he lacked enough insurance to cover all of their losses.

Fortunately, plaintiffs had an underinsured motorist (UIM) policy with defendant insurer. Plaintiffs subsequently sued the at-fault driver for negligence, and also named their own insurer as a defendant in order to recover UIM benefits.

The liability insurer of the at-fault driver subsequently offered to settle the case for $200,000, which represented the driver’s policy limits. Plaintiffs informed their own insurer of the claim. The insurer then took action under a precedent set by the Alabama Supreme Court in 1991 with Lambert v. State Farm.

In Lambert, the supreme court ruled that a UIM insurance company can prevent the release of a tortfeasor from liability (which is what would happen if the settlement agreement was accepted) by advancing to its insured an amount equal to the tortfeasor’s settlement offer. The reason to do this would be to protect the insurance company’s right to subrogation, or recovering an offset from the other insurance company.

constructionworker2.jpgThe exclusive remedy provision of workers’ compensation law in most states provides that employers – and those standing in the place of employers (i.e., employees, certain contractors etc.) – are shielded from civil liability for work-related injuries. Instead, workers are extended no-fault insurance through their employer’s workers’ compensation program.

However, there are still cases in which injured workers – or family members of those killed – may pursue third-party liability of others besides the employer who may have been negligent in causing the accident.

This was the type of case in Hanco Corporation v. Goldman, after a horrific work site accident killed three, including plaintiff’s husband. The three workers were buried alive underneath dirt and clay at an industrial park while installing a sewer line. Decedent was 55 years-old. The other two men killed were ages 30 and 19. Co-workers tried desperately to dig the victims out with their own hands, but they couldn’t get them out in time.
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It’s not always the pilot of an aircraft would have grounds to sue passengers for a fatal crash landing. However, in the case of Krinitt v. Dept of Fish and Game, the mother of a pilot killed in a helicopter accident is suing the state government agency that contracted with the pilot’s employer for a job.
Plaintiff, as executrix of pilot’s estate, alleges defendant government agency’s employees were negligent, and their actions were the cause of the crash. The case was recently before the Idaho Supreme Court, which reversed an earlier grant of summary judgment favoring the defense.

The high court determined lower court erred in its summary judgment decision because the facts are to be liberally construed in favor of the non-moving party, with all reasonable inferences taken from the record to be drawn in their favor. Because it was the defense filing for summary judgment, the facts were to be considered in the light most favorable to plaintiff. That didn’t happen here. The reversal means plaintiff may now proceed to trial with her case.

According to court records, the helicopter crash happened in 2010, resulting in the death of the pilot, and ultimately both passengers, who worked for the state Department of Fish and Game.
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Consumers in the U.S. are protected by a number of provisions of both state and federal laws with regard to promises or “warranties” made by companies about their products.
Some of these warranties are in written or spoken form. These are called “express warranties.” However, there are also certain unwritten, unspoken expectations to which consumers are entitled. These are called “implied warranties.”

Essentially, consumers almost always have some recourse when products don’t meet their basic expectations – especially when the result is someone is injured. The most common that we see in product liability law is implied warranty of merchantability. That means the product is guaranteed to work and be reasonably safe when used for its intended purpose.
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Most crashes occur because a driver made a mistake. However, sometimes, the way the roadway or traffic is designed or constructed can play a role in either causing an accident or amplifying the severity. carbridge.jpg

In such cases, car accident victims may be able to secure compensation from the public agency responsible, and potentially from contractors who may have worked with that agency on the project.

In the case of Logan v. Miss. Dept. of Transportation, the issue before the Mississippi Supreme Court was whether there were sufficient issues of material fact for plaintiffs to proceed with their claim that a defective repair of a bridge caused them to spin out-of-control and suffer injuries. The court ruled there was, and that a statement by the couple’s daughter-in-law regarding a conversation she had with transportation department officials at the scene of the crash was admissible in court – even though the workers hadn’t been authorized by their employer to make those statements.

Here’s what happened, according to court records:

Plaintiffs – husband and wife – were driving over a bridge that had recently undergone repairs. As they approached, there were no warning lights or indications that there was anything unsafe about the structure or the roadway. But as they crossed, the undercarriage of their vehicle got caught on two metal plates that were crisscrossed and sticking up from the road. This caused the driver to spin out of control and both vehicle occupants suffered injury. They called for help, and when their daughter-in-law got word, she rushed to the scene.
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A man who required a leg amputation after falling three stories while applying stucco to a building exterior was awarded $2.8 million in damages following his third-party liability lawsuit. dangerhardhatarea.jpg

However, his damage award will be reduced by 30 percent, the portion of fault jurors deemed he had in the accident. It’s worthwhile to note that this case, Chin v. Koryo Corp. et al., happened in New Jersey, which abides by a different system of comparative fault than Alabama. Here, we follow a system of pure contributory negligence. That means if a plaintiff is making a claim for damages, that claim will be defeated if defendant can prove negligence on the part of plaintiff – no matter how small.

Another important point is that while this was a work-related injury, this was not a workers’ compensation case. It was a third-party liability lawsuit. Workers cannot sue their employers for workplace injuries (except in rare instances), but they can take action against other responsible parties.
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