May 2012 Archives

May 27, 2012

The Applicability of Statute of Limitation in Alabama Worker's Compensation Cases

Workers' compensation claims allow employees who suffer a work-related injury to claim benefits from their employer's insurance carrier. However, in addition to providing workers with benefits, workers' compensation statutes protect employers by creating a statute of limitations which bars claims that are not made timely.

Deciphering the different specifications within the Alabama workers' compensation statutes can be tricky, which is why you need the guidance of an experienced injury attorney. 1207444_courtroom_1.jpg
The effects of statute of limitations in workers' compensation cases is illustrated in a recent Fifth circuit case called Patrick v. Wal-Mart. This case involves a Wal-Mart employee injuring her lower back while stocking shelves in a Mississippi Wal-Mart store.

Teresa Patrick (plaintiff) injured her back in 1997 and brought a workers' compensation (WC) claim against her employer Wal-Mart and its insurer National Union Fire Insurance Company (collectively, defendants). The facts of the case were brought to be disputed in front of an Administrative Law Judge (ALJ).

Plaintiff argued that her lower back injuries were caused by her work for Wal-Mart. Wal-mart countered with the argument that the plaintiff's back injuries could not have possibly been caused by the plaintiff's work stocking shelves. In 1998 despite the contradictory arguments, the ALJ found that the plaintiff was entitled to temporary disability benefits for eleven months. Because the extent of the plaintiff's injuries could not yet be determined, the ALJ left the decision for any additional benefits due to permanency of the injury, open to be discussed at a later time.

Defendants paid the plaintiff the bulk sum award. Plaintiff left work with Wal-mart and began working in other capacities for different employers. This lower back injury the plaintiff suffered continued to be agitated until plaintiff brought another action against the defendants for additional benefits for her work-related back injury.

Five years after the entry of the first judgment for the plaintiff, the ALJ re-heard the facts of the workers' compensation case. The ALJ found that the plaintiff was permanently disabled because of the back injury she obtained working for Wal-Mart, and awarded the plaintiff necessary and reasonable medical expenses incurred because of this injury.

Additionally, the defendants were required to pay the plaintiff monthly benefit payments because of the permanency of her injury.

The defendant's disagreed with this ALJ decision. Defendants argued that the plaintiff's claim for permanent disability came too late, as it was over the statutory time allotted by statute. In Mississippi, an injured worker has three years from the date the injury was discovered or diagnosed to bring a claim for damages.

Plaintiff argued that because the ALJ's decision in 1998 was not final, the clock for the statute of limitations had not begun to tick. Thus, she argued that the final decision in this workers' compensation case came in 2005.

The confusion arose because of the word "final." Because the 1998 ALJ's decision left certain things undecided, this decision was considered interlocutory. However, this court notes that the decision was interlocutory as to the plaintiff's substantial rights but considered a final judgment for procedural law.

Because it would not be consistent with the legislative intent of workers' compensation laws to only allow a decision to be final when all of the potential benefits are awarded. This would only create an unjust result leading to decades worth of litigation for work-related injuries. Thus, the plaintiff's second suit was considered to be barred because it was not brought within three years of the date of her injury.

Continue reading "The Applicability of Statute of Limitation in Alabama Worker's Compensation Cases" »

May 15, 2012

Gushlaw v Miller: Do We Have a Duty to Stop Alabama Drivers from Drinking and Driving?

Although drinking and driving is both dangerous and illegal, it remains the most common cause of Montgomery car accidents to date. However, have you ever wondered whether you can be held liable for knowingly allowing another to drink and drive?
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If you have been involved in an accident with a drunk driver, it is important to get the advice of an experienced Montgomery injury attorney.

The Rhode Island Supreme Court delves into this complicated legal issue of duty to third parties. Gushlaw v. Miller, No. 2009-376-Appeal (R.I. S.Ct. May 10, 2012). This case arose where two adult men, Joseph Clukey (Clukey) and Matthew Milner (Milner) (collectively, defendants), decided to go to a hotel party. Defendants were nineteen and twenty, respectively. They met at a local convenience store, and illegally purchased an eighteen pack of beer. They decided that Clukey would drive the forty five minutes to the location where the party was being held. The hostess of the party was only seventeen, and she had about eight to ten people gathering at this hotel party.

Upon arriving at the party, defendants began to drink very heavily. Each of the defendant's consumed seven or eight beers. The party-goers were at the hotel pool, having a bar-be-que and drinking outside. The defendants began to get loud and obnoxious, causing the hostess to ask them to leave the party. Although Milner only lived three blocks from the party, the two men agreed to go back to the convenience store so that Milner could pick up his vehicle.

Cluckey drove intoxicated to the convenience store and dropped Milner off. Clukey knew that Milner was also intoxicated and that Milner was going to drive in that condition.
Several hours after the two men separated, Milner was driving at very high speeds. He crossed the middle line and collided with a vehicle that was being driven by Eldrick Johnson (Johnson). This head-on collision caused Milner to die immediately. Johnson survived the actual crash; however, he died upon arrival at the hospital from injuries related to the collision. Johnson was survived by his wife (plaintiff) and four minor children.

Plaintiff sued Milner, Milner's father, Allstate Insurance Co. and Clukey. She argued that Clukey should be held liable under the theory of negligence because he knew or should have known that someone could be injured by Milner driving drunk. This argument centered on the idea that Clukey had owed a duty of care to all of the public to keep Milner, who was knowingly drunk, from driving.

The question for the court became whether Clukey was liable for the death of Johnson because he knowingly let Milner drive while intoxicated.

In order to prove a claim for negligence, the plaintiff has to prove by a preponderance of the evidence the four elements of negligence. These are: defendant owed a duty to the plaintiff; defendant breached this duty; the defendant's breach of duty was the direct and proximate cause of the plaintiff's injuries; and the plaintiff suffered damages.
Clukey argued that he did not owe this duty of care. He stated further that it would be unreasonable to add this duty of care to third persons.

The state supreme court found that a person cannot be held liable for the injuries of another where they knowing let another person drive drunk. Hence, the court entered summary judgment for Clukey because this duty requirement would be excessive.

Every state has analyzed this question a little differently, which is why it is so critical to have an attorney guide you in your personal injury lawsuit.

Continue reading "Gushlaw v Miller: Do We Have a Duty to Stop Alabama Drivers from Drinking and Driving?" »

May 11, 2012

Blinkers: Preventing Car Accidents in Montgomery and Elsewhere

Safe driving advocates are now looking at another dangerous driving habit. It's not what drivers are doing behind the wheel, but what they're not doing. We're talking about blinkers. According to MSNBC, there are about 2 million accidents that happen every year because drivers neglect to use a blinker.
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According to a recent study from the Society of Automotive Engineers, drivers fail to use their turn signals more than 45 percent of the time when changing lanes and another 25 percent when making turns. That means drivers are failing to use their turn signals about 2 billion times a day, or about 800 billion times every year. That's a lot of unannounced turns and a lot of car accidents in Montgomery and elsewhere.

Our Montgomery accident lawyers understand the risks account for twice as many car accidents as distracted driving. The fact of the matter is that the use of a blinker is a roadway law, just like stopping at red lights. Still, drivers aren't taking it seriously. It could be for a number of reasons, but safe driving advocates are blaming it on the lack of enforcement. They say that law enforcement officials are too busy scanning our roadways for other dangerous behaviors -- so they oftentimes overlook drivers who fail to use a blinker.

"This is a first of its kind report on a subject that amazingly, has never been studied," said Richard Ponziani, P.E., an author of the report.

It's been proven. Blinkers are some of most simple and effective ways to help to prevent roadway accidents. Still, there's an alarming lack of compliance with the things though. All drivers have a responsibility to use them, just as they do to stop at a stop sign.

Researchers say that they have a solution though! It's called the "Smart Turn Signal" and it works much like the new-age seat belt reminder works. It steps in when the driver does not. With seat belt warnings, the vehicle beeps to alert the driver that their seat belt is not on. With the seat belt warning, drivers are alerted when passengers in the vehicle aren't wearing a seat belt. The "Smart Turn Signal" would work in a similar way. It would beep if the driver's blinker has been left on or if it isn't being used when it's supposed to. The study refers to it as a "friendly reminder."

Researchers even say that this option would actually be easier to use and it would cost less money than the current mechanical trip mechanism that's used in vehicles. According to Ponziani, this is the most effective ways to help to prevent multiple-vehicle accidents and to get drivers to use their blinkers again!

Continue reading "Blinkers: Preventing Car Accidents in Montgomery and Elsewhere" »

May 1, 2012

Risks for Accidents in Montgomery Up with Cinco de Mayo: Fiesta Responsibly

Cinco de Mayo is a huge event for many local residents and visitors to the area, especially the young adults. It's a fantastic time to get out, socialize with old friends and even make a few new ones. The big event is this Saturday and we're asking all locals and visitors to go out with a plan and to go out responsibly.

No, not a plan of party details, but a plan of after-party details. Make sure you have a sober ride home to avoid a potentially fatal car accident in Montgomery!
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Our Montgomery injury attorneys are here to offer you a few simple safety tips to help prevent one of these accidents. Mothers Against Drunk Driving (MADD) reminds those who don't have any plans to drink to remember that others do and still need to be careful. With the cooperation of everyone this Saturday, we can all work to keep our roadways safe and accident free, celebrating a truly successful Cinco de Mayo! There's no reason for anyone to get behind the wheel after consuming alcohol. There are a plethora of options to avoid these kinds of accidents. Take note and party responsibly!

Cinco de Mayo Tips from MADD:

-Make sure that you have a designated driver before heading out. A designated driver is someone that vows to drink nothing, not the person who drinks the least.

-Make sure to grab something to eat before heading out. Consider chowing down on some of your favorite Mexican foods throughout the evening to help to avoid getting too intoxicated and getting sick.

-If something goes wrong and you find yourself left without a designated or sober driver, call a cab, call a friend or a family member to come pick you up or use public transportation. Whatever you do, do not get behind the wheel.

-If you see someone who has been drinking and is going to get behind the wheel, snatch the keys from them. You can help to save lives by stepping in and speaking up.

Drunk driving car accidents are a huge problem! They're so common that someone is killed in a drunk driving car accident every 50 minutes. Last year, there were nearly 11,000 people killed in these completely preventable accidents. During holiday periods, especially during Cinco de Mayo, the risks for these kinds of accidents skyrocket.

Remember, every minute someone is injured from one an alcohol-related auto accident. Do your part to keep our roadways safe and our Cinco de Mayo fun by pledging to stay sober behind the wheel or designate a driver. You're responsible driving and partying habits can help to save lives. Go out, have fun, party responsibly and enjoy!

Continue reading "Risks for Accidents in Montgomery Up with Cinco de Mayo: Fiesta Responsibly" »


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