Mast, Mast, Johnson, Wells & Trimyer, P.A.

INSURANCE COVERAGE: THE PHRASE THAT THE JURY WILL NEVER HEAR

Although everyone should have insurance coverage, it’s a phrase the jury will never hear. In a property or injury lawsuit, if you have to go to trial the jury will never know that the judgment will ultimately be paid by the insurance company rather than by the individual. Lets take this example, an at-fault driver is not paying attention and collides into the rear of an innocent driver’s vehicle who is stopped at a red-light. The innocent driver’s vehicle is fairly new, is damaged, will need a rental vehicle and his car is worth less because of the repairs. Also the innocent driver was injured and went to the emergency room, followed up with their family doctor and then a chiropractor before he is finally released to return to work.  

PROPERTY DAMAGE CLAIMS:

The damage to the car may be a few thousand and a rental vehicle for a week or two may be a few hundred. Often there is no issue recoverying these amounts from the at-fault driver’s insurance company. But what if the car was new? And even if it was not, a vehicle that has been damaged is worth less than one that has never been in a wreck.  In NC you are permitted to make a claim for diminution in value (i.e. the difference in value of the property before the wreck vs. the value after its repair).  In a recent case an innocent driver’s new (+1yr old ) luxury vehicle had significant repairs (+$7,000) which included removal and re-welding of a quarter panel. The manufacturer estimated the diminished value at $4,500 and the insurance company’s estimator (i.e. hired gun) estimated only $2,500. At trial both experts testified and the jury awarded only $2,500. During our presentation of evidence, we were not permitted to put on evidence that the insurance company paid the repairs bills, the rental vehicle for several weeks, and that it would be the insurance company that would also be responsible and pay any judgment for the diminished value. When questioned afterwards, a juror informed us that during deliberations the jury was upset that the innocent-driver brought a lawsuit against the at-fault driver “rather than the insurance company” who they felt should be responsible.

INJURY & MEDICAL CLAIMS:

Similarly, if we take the above hypothetical example, a visit following an accident to the ER could easily run from $3,000 - $10,000 with the hospital, doctor and radiology bills if an MRI is performed. A few follow up visits to a family doctor can run a few hundred per visit and a course of therapy with a chiropractor (2-3 visits per week for a 1-3 months) could run easily $3,000. The innocent-driver may also be unable to return to work and therefore may miss several weeks of work until released. Under our state’s law, one is permitted to recoup medical expenses that are reasonable and related to the injury, lost wages as well as an amount for pain and suffering.  At trial, the plaintiff-victim will be permitted to submit his/her medical records, bills and lost wages. There is no document or formula for “pain and suffering” and therefore that is left solely up to the determination of the 12 jurors.  

During the presentation of evidence, the victim is not permitted to introduce the at-fault driver’s insurance coverage (although the plaintiff is permitted and the defendant is required to produce a copy of it) that has been provided which outlines the amounts that the insurance company must pay.  Therefore, the jurors may be under the belief that because the driver or at-fault driver is being sued, that the individual will have to open up their checkbook to write a check for the damages rather than the insurance company.  

WHY?

Under Rule 411 of the NC Rules of Evidence (Chapter 8c of the N.C. General Statutes), evidence that someone has or is without liability insurance coverage is not admissible. This means a victim is not permitted to offer evidence that although he/she has sued an “individual” person (who paid premiums for coverage in the event of an unfortunate event), that it is the insurance company who will pay the verdict for the wrong-doing. The fear could be that if the jury knew that it was the “insurance company” that was paying rather than the “person’ then the jury would lose its conscience and award exorbitant amounts.

Many persons do not have medical insurance coverage, and if they do, the coverage can vary greatly.  Some persons may have little to no co-pays and/or deductibles while many have no coverage or only catastrophic coverage with very high deductibles.  This information is not permitted to go to the jury either. The only evidence that goes to the jury are the amounts charged by the medical providers and those are the numbers that the jury should base its award upon. However, even if a victim has medical insurance, there is often a “subrogation” clause either in the contract or imposed by law (including state and federal employees coverage, teachers, Medicare, Medicaid, etc.) which may require that the victim reimburse his/her medical ins. company with any recovery from a verdict, meaning, they can end up with nothing.

THINGS TO REMEMBER AT A JURY TRIAL

1. The word insurance will not be mentioned;
2. Although a person is usually sued (driver or a negligent doctor), neither their auto nor medical malpractice insurance carrier/company will be;
3. Insurance and Malpractice Insurance coverage is required to be turned over to the victim’s attorney if requested
4. Most injury cases are handled on a contingency fee basis meaning that the attorney gets a % of the amount awarded by the jury
5. Most injury cases verdicts (auto accidents, med malpractice claims, etc.) are paid by the insurance company
6. Almost no attorney will take a case to trial if there is no insurance coverage; 
7. Almost every attorney agrees to take these cases on a contingency fee basis which means that the victim's recovery is less than what the actually awards, but this is not mentioned to the jury either.  

This article was written by attorney Ron Trimyer, feel free to email me at ron@mastfirm.com.

Alienation of Affection and Criminal Conversation in North Carolina

Almost all marriages have their ups and downs and unfortunately too many end in divorce.  It is especially difficult when children are involved.  You have many issues to deal with including custody and visitation of the children, child support, alimony and property division.  A common question that arises: who gets to stay in the home and how am I going to pay for it?

 

An added element that can fuel to the hurt a spouse may experience is if there is a third person involved in a relationship with your husband or wife.

 

A few states still have "heartbalm" statutes which allow a civil cause of action.  North Carolina is one of those states that allow Alienation of Affection and Criminal Conversation claims.  Other states include Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah. What are these causes of action?

 

ALIENATION OF AFFECTION: With this claim a spouse must prove that he/she had a genuine and loving marital relationship which was destroyed by the wrongful and malicious conduct of a third party. The claim does not necessarily need to involve a lover, but can even include family members or other third parties.

 

CRIMINAL CONVERSATION: This claim is somewhat simpler... that a third party engaged in an adulterous affair (sexual intercourse) with a married spouse. While NC still technically has a law on the books which makes intercourse between unmarried persons criminal, most likely if anyone was ever charged it would be stuck down as unconstitutional under the precedent of U.S. Supreme Court.

 

PROOF / EVIDENCE: Proving your claim can be difficult because most the evidence is circumstantial, but some forms can include videotapes by private eyes (PIs), emails, letters, photographs, etc.  Post separation conduct (i.e. relationship following separation) is not direct evidence of these claims but can be used to corroborate pre-separation acts if there is evidence of such.

 

DEFENSES: Defenses to these claims can include the fact that the spouses were not happily married, that a spouse consented to a third party relationship, the parties were separated, or that the 3rd party was unaware of the marriage.

 

If you have a claim against another person for the destruction of your marriage and you desire to bring such a claim feel free to give our office to set up a consultation.

 

This article was written by Ron Trimyer.  ron@mastfirm.com

Defamation of Character, Slander, Libel, etc.

Everyone has heard these terms at some point or another. Almost everyone has been called a name or been lied about to others (i.e. gossip). While this is common but it can result in more than just hurt feelings and under NC law you may have a remedy which allows you to bring a civil action against another for such wrong doings. 

Defamation can be defined as a false statement about someone, which is told to another which causes that person to suffer damages (e.g. monetary damages (lost income) or medical expenses (related to emotional distress). There are two major categories of defamation: libel and slander. Libel is written false statements and slander is spoken.  If there is a false statement made about you which is written you do not have to show actual damages as it is presumed in the eyes of the jury that you have a loss. The same applies to some slanderous statements which accuse another of having committed a crime, having an infectious disease, etc. However, without any proof of actual monetary damages (hard numbers) the jury may have no guidance as to what to award.

The law of defamation is much more complex and the U.S. Supreme Court over the years has made various rulings and different standards apply depending upon the person who is spoken/written about.  Different standards apply whether you are a private individual vs. a public figure (e.g. politician). Defamation lawsuits are not common and before brining a lawsuit one should decide whether if it worth it to invest the time, effort and expense. Many of the situations that have come across my desk involve gossip told to fellow acquaintances, friends and neighbors. Often if the lawsuit is pursued, it would be solely out of principle as there is a good chance that any judgment/verdict awarded could be less than what it would cost to hire an attorney to take the case from beginning to end. 

However, there are some good (i.e. valuable) cases where it can be worth the time and expense including situations where a competing business person intentionally conveys a false statement to potential customers to deprive the other of business. If you can prove the elements with evidence (including testimony from would-be customers that but for the false statement they would have done business with you) then you may be able to meet your burden of proof to take to a jury. In one case a truck driver was terminated after he was involved in a multiple car accident. The initial at-fault driver was killed but charges were brought against the 1 wheeler truck driver as he was unable to avoid hitting the driver who was later determined to have died upon the first impact. 

However, before the medical evidence was released and before the DA's office had dismissed the charges the employer placed upon the trucker's "DAC Report" (CDL Driving Record) that he had killed another person. When he went to seek other employment, he could not obtain a job due to his record. The employee could show that there was a false statement made, that it was published to 3rd parties & that he had suffered monetary damages (difference in his salary as a salesman job he took $30K vs. $100K per yr since the incident)... However, he waited too long to contact an attorney. Unlike common statutes of limitation (i.e. how long after the act do you have to file the lawsuit to file with the courts) the time limit one has is only one year (1yr).  See N.C. Gen. Stat. s. 1-54.  Many common claims such as negligence, such as a car wreck, is three years (3yrs).

If you have a potential defamation case that you would like to discuss feel free to contact our office to set up a consultation.

This article was written by Ron Trimyer, ron@mastfirm.com

NC COURT OF APPEALS REQUIRES SCIENTIFIC EVIDENCE

In an opinion handed down on June 1, 2010, the NC Court of Appeals in N.C. v. Brunson, case number COA NO. COA09-976, reversed the decision of the court below where a man was convicted of trafficking a prescription medication he had on his person during a traffic stop.  The pills were given to the State Bureau of Investigation (SBI) and an expert testified at trial that the 40 pills were hydrocodone a common pain prescription medication. The SBI analyst basically testified he compared the pills to those contained in a book and based upon similarities he determined that they were the same medication. The jury convicted and the defendant was sentenced to at least 225 months (18yrs). The Appellate Court, relying on the State’s Supreme Court opinion in State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009), held that a visual inspection of the suspected pills was insufficient and the case was reversed and remanded for a new trial. While the Appellate Court referenced the fact that the charge was alleging a “schedule III” substance and its “chemical compositions”, it is possible now that the Court may require that all alleged drug confiscations require a lab analysis, including marijuana, which seems often not to be tested.

This article was written by attorney Ron Trimyer, feel free to email me at ron@mastfirm.com.

ARE YOU GOING THROUGH A POTENTIAL DIVORCE?

Divorce can be one of the most difficult times in a person’s life to go through, especially when children are involved. In the event that you and your loved one are unable to work through your situation our law firm is here to assist you. Many things may be running through your mind and will need to be addressed including:

• Alimony / Post separation support (PSS)
• Child support
• Custody
• Property division

When can you get a divorce?

 

In North Carolina, we have a no-fault divorce law which essentially means that you need to be living separate and apart for a year (i.e. living in separate residences). Just because there is an attempt to reconcile briefly or you stay temporarily at the other’s home does not necessarily restart the year time frame.

In our state you can be actually separated (lived apart for one year), have a separation agreement (establishing the date of separation), or have a judicial declaration that you are separated.

In any event, all of these issues are often emotional and difficult to handle, but our attorneys at the Mast law firm are here to help and guide you through this process. It may be and can be extended process, but we’ll be with you the entire step of the way.

If a resolution through a separation agreement cannot be reached, which can be the most efficient and cost-effective way of handling a separation, a lawsuit may be required to be filed with the courts.

Also to consider before meeting with us is to have as much information as you can obtain regarding your families assets, debts, finances, etc. If you need assistance with any of the above issues, please give us a call to assist.

This article was written by attorney Ron Trimyer, feel free to email me at ron@mastfirm.com.

UNDER-AGE DRINKING AND UNDER-INSURANCE COVERAGE

   

In a recent settlement, the estate of a 21 year old settled with several defendants and obtained a default judgment against the others. An eighteen year old driver left a party hosted by a friend and consumed alcohol while there. After leaving, she struck and killed the 21 year old man.  The estate of the deceased brought suit against the driver, the hosts of the party, and against the convenience stores which sold the alcohol to minors that used fake ids. The 18 year old only had $200,000.00 of coverage which was paid to the estate, and a judgment in the amount of $6 Million dollars was obtained against the host parents. The convenience stores apparently settled for approximately $250,000.

    An important lesson can be learned from this lawsuit. First and foremost, do not buy or allow your children or their friends to drink if they are underage.

    Second, make sure your insurance coverage that you have on your family members’ vehicles includes coverage for both underinsured and uninsured. Most policy holders have uninsured, which is the situation if your vehicle is struck by someone without insurance. However, your company may not offer you “under-insurance”, which is the situation where the at-fault driver strikes your vehicle and injures you, but has coverage which is insufficient to cover your medical expenses.

Under-insurance coverage protects you and your family in the unfortunate event someone injures you or a loved one.  It is recommended that you have at least one-million dollars of coverage for 1) your liability, 2) uninsured, and 3) underinsurance. When you speak with your agent and discuss your rates, you’ll notice that this add coverage does not often substantially increase your premiums.

With recent changes in North Carolina law, it is extremely difficult to hold a convenience store or bar / restaurant liable for its patrons, even though most commercial policies have coverage well into to the six figures.

In the case referenced above, it can be gathered from the facts that the family of the deceased will only recover the $200,000.00 paid from the insurance company, as it is unlikely that the parents (hosts of the party) have the capability to write a check for $6 Million dollars, and will likely file bankruptcy. As you can tell, the amount the family recovered is nowhere close the amount of compensation deserved for the loss of a loved one, especially one so young.

In the unlikely event that you or a loved one has been injured as a result of another driver, please give us a call so that we can assist.

 

This article was written by attorney Ron Trimyer, feel free to email me at ron@mastfirm.com.

UNLICENSED CONTRACTOR CANNOT RECOVER FOR WORK PERFORMED

   

    Husband and Wife (Homeowners) had entered into a contractor with an individual builder who agreed to construct a new home. At the time the contract was signed, the builder, individually, was an "unlicensed” general contractor.  Thereafter, he “transferred” the contract to his business (without the homeowners consent or knowledge), which had an official and duly authorized general contractor’s license and proceeded to build the home. Despite the fact that work was performed by the builder, the homeowners were not required to pay the builder.

    The Court relied upon precedent such as in Brady v. Fulghum, 309 NC 580 (held contract with unlicensed general contractor is unenforceable); Jenco v. Signature Homes, Inc., 122 NC App 95 (unlicensed contractor who transferred construction contract could not recover under an equitable theory of recover such as quantum meruit), Vetco Concrete Co. v. Troy Lumber, Co. 256 NC 709 (express contract precludes an implied contract as to the same subject matter).

    Therefore, it would be wise to make sure that any contractors who perform any work ensure that if they are not licensed, that they do not go above the statutory limits of what you are able to perform; and for homeowners, make sure that you check the credentials of persons that you allow to work on your home.

ALIENATION OF AFFECTION LAWS IN NORTH CAROLINA AMENDED

  

    North Carolina is one of the few states that still allow what is termed “heart balm” statutes, such as the claims of Alienations of Affections and Criminal Conversation.  Both of these claims can be asserted by a spouse against at third party (i.e. boyfriend/girlfriend) who has had a “relationship” with the other spouse. For Alienations of Affections, essentially you must prove that the acts of the Defendant alienated or caused the love and affection that used to exist between the spouses to dissipate. With Criminal Conversation, you only need to prove that the Defendant had sexual intercourse with the spouse of the Plaintiff spouse.

    However, the Generally Assembly just passed a statute which limited the scope with which a hurt spouse can recover under the theory of Alienation of Affections. The statute limited the conduct to those which occurred while the Plaintiff and his/her spouse were together. So, under the new law, if the Defendant does not have any relationship until after the husband and wife separate, then the Defendant cannot be held accountable for his acts.  Additionally, the new law prohibits a suit from a suit against a corporation or business entity.  Previously, some Plaintiffs have tried to sue the employer businesses of the Defendant alleging that the employer condoned or encouraged the acts of affair. However, with the passage of this new statute, that has been prohibited. lastly, this does not prevent a claim for "Criminal Conversation" which is the mere act of intercourse with a married spouse.

FELON HAS HIS GUN OWNERSHIP RIGHTS RESTORED

The North Carolina Supreme Court has recently ruled that a 2004 law passed by the General Assembly was unconstitutional. In Britt v. State of N.C. , the Defendant was convicted in 1979 of a felony drug crime, and once his probation ended in 1982, his right to posess a firearm was restored.

    However, in 2004, our state legislators passed amended N.C. Gen. Stat. s. 14-415.1 which prohibited the possession of a firearm by any convicted felon, even if they were at their own home or business.

    After Mr. Britt learned of the amended law, he voluntarily surrendered his “sporting rifles and shotguns” and proceeded to challenge the law by filing a civil rights lawsuit against the state.  Our State’s highest Court ruled that the statute was an “unreasonable regulation” and “not fairly related to the preservation of public peace and safety.”

CRIMINAL LAW: ILLEGAL SEARCH & SEIZURE

    In State v. Morton, the Court of Appeals recently held that the officer had performed an “Illegal Search and Seizure” of the Defendant which led to his arrest and conviction.  Generally, under your U.S. Constitutional Rights, you have a right to be free from unreasonable searches and seizures absent special circumstances.  A special exception would be where the officer has a reasonable belief that the individual is armed and dangerous (i.e. sees a handle of a pistol sticking out of waist band of pants).

The detectives in the investigation requested to speak with the Defendant regarding a drive-by-shooting and drug dealing.  According to the officers, the police department received a “tip” but there was no record of who provided the tip or whether they had provided reliable information in the past. This particular Defendant was known by the Detectives as he had voluntarily spoken with these detectives on several other occasions regarding unrelated matters in the past, just as he did in this case.  However, on this day, while speaking with the Defendant, the Detectives proceeded to “frisk” him and found some incriminating evidence against him which was used to prosecute him.

Since the officers knew the Defendant, had spoken with him on previous occasions, and had no eason to believe that he was a threat to them, the Court held that any evidence acquired off his person was excluded from trial.

 

GOVERNMENT IMMUNITY CON'T: PUBLIC DUTY DOCTRINE

    The State Tort Claims Act (STCA) is a statute that has expressly waived North Carolina’s common law immunity for claims against the state. Under the older common law, the gov't is immune from lawsuit absent a waiver of that immunity, or some other exceptions such as a U.S. Federal Constitutional violation.

However, over the years, the government has been able to raise the defense under a theory of the “Public Duty Doctrine” which stands for the proposition that if the government is involved in a act that is related to law enforcement or for the public’s safety (such as a police officer or fire fighter), then the fact that the person failed to perform their duty correctly and causes an injury, a lawsuit is barred.   The theory behind it is that persons, such as officers, cannot be expected to prevent all crime control due to the limited resources / number of cops.

    The General Assembly recently changed N.C. Gen. Stat. s. 143-299.1(A) which limited the instances when the “Public Duty Doctrine” could be raised as a defense. The new statute limits the application of this defense to “police” or “quasi-police” functions, or “health or safety” inspections (such as fire inspectors). Before this statute, our appellate courts had expanded the doctrine beyond these areas, but the application by different judges / justices left this area of the law grey.

    In the recent decision by Chief Deputy Commissioner Stephen T. Green of the Industrial Commission, which involved a lawsuit against the Department of Transportation, the State had failed to correct a knowingly defective road hazard which led to the death of several individuals when they road over the dangerous section. Comm. Green denied the State’s Motion to Dismiss the case, arguing that the because a private citizen could not construct / repair the roads, therefore a regular individual could not be held liable, and therefore the State should not be held accountable for its negligence.

    See Stone v. NC Dept of Transportation, 347 NC 473, Melville v. NC Dept of Transportation, Phillips v. NC Dept of Transportation.