HOW DO I KNOW IF I HAVE A GOOD CASE?
A: After an auto injury, it can be difficult to know if you have a good case or a bad case. You are probably not familiar with many of the words and concepts that are involved in an injury claim. Attorneys and insurance adjusters throw around terminology that can make you think they are speaking a foreign language. But behind every unfamiliar word and concept is a logical principle. As a result, you probably know more than you think you know.
Here are some of the words and concepts you will hear, along with explanations that will help you connect them to their logical principles.
First, you have to look at the big picture. Insurance companies only pay when they must pay, and they must pay when three things are present: liability, damages, and coverage.
1. LIABILITY exists when another person causes an injury.
Liability has two components. First, liability requires a legal duty.
In the case of an auto injury, the injured party must establish that the other driver owed him a duty of care.
For example, North Carolina law imposes a legal duty on all drivers to decrease speed as necessary to avoid collisions. In addition, North Carolina law requires all drivers to operate his or her vehi-cle on a public highway at a reasonable speed under the existing conditions. Drivers are required to maintain proper equipment, keep a proper lookout, and keep their vehicles under control. When we drive, these are our legal duties or legal responsibilities.
Second, liability requires a breach of duty. For example, if you are stopped for a red light, drivers behind you have a legal duty to “decrease speed as necessary to avoid collisions.” If another driver ploughs into the back of your car, then the other driver has breached his duty. The other driver is legally responsible for the damage to your vehicle and to your body. His or her insurance carrier must defend or pay your claim.A person who breaches a legal duty by accident is negligent. Negligence does not mean he or she caused the accident on purpose or intended the result. In fact, those who injure others on purpose are usually charged with a crime. Rather, negligence occurs when someone is injured because another person makes a mistake. We all make mistakes. The law requires us to pay for the damage caused by our mistakes. This concept will be covered fully under (3) below.
2. DAMAGES exist when one person suffers loss as a result of a mistake made by another. For example, a person who has suffered a broken leg because of a careless driver has damages. The law is designed to “give back” what was taken from the injured person.
Therefore, the law will require the insurance company for the responsible driver to pay for the medical expenses, lost income, and pain and suffering incurred by the injured person.
In our example, if the injured person never regains complete use of his leg, that person has suffered a permanent injury. The insurance company will be required to compensate the injured person for the partial loss of the use of a part of his body. Since in this case there is no way to “give back” what was taken, our legal system requires the insurance company for the responsible driver to compensate the injured person for the loss. The calculation of this monetary amount is more art than science, and the analysis is different in each case.
3. COVERAGE is an essential component of most successful injury claims. Liability and damages will get you an A on a law-school exam but the real world requires an additional practical analysis. Even if liability and damage are present, who will pay the claim?
Injury attorneys have experience in identifying insurance policies which will cover or pay for damages. Sources of coverage may include the vehicle owner’s auto insurance policy, the vehicle driver’s auto insurance policy, the at-fault driver’s employer’s insurance policy, your health insurance carrier, your own auto insurance policy, a medical payments policy, or an umbrella policy.
Insurance adjusters and insurance companies have an important advantage in North Carolina. North Carolina is one of the few states that still utilizes the concept of contributory negligence, usually a complete and total bar to any recovery. In order to understand contributory negligence, we first have to understandnegligence. Negligence, as we saw earlier, is different from intentional conduct. In an injury case, negligence occurs when someone makes a mistake that results in injury to another person. But the injury is still their fault.
For example, consider two kids on bicycles. Johnny gets angry and runs into Susie with his bike on purpose. That is an intentional act, not an accident or a mistake. It is a crime to intentionally injure someone, and those kinds of cases are prosecuted in criminal court by the district attorney’s office or the United States Attorney’s Office. The legal goals of the criminal process are to punish, deter, and rehabilitate and to protect the community.
If Johnny takes his eyes off of the path to look at a bird and runs into Susie on his bike, that is an accident. It is a mistake made without the intent to injure. It is a negligent act, not a criminal act. Under civil law, a similarly negligent person would be respon-sible for paying for the damage he caused, but would not face jail or probation. The focus is on making the injured party whole, not punishing the person who made the mistake. However, if the mistake maker was engaged in especially reckless behavior, then punishment becomes a part of the process.
If Johnny is not looking at the path and Susie is pedaling too fast for the conditions when the wreck occurs, then they both may be partially responsible for the accident. They are both engaged in behavior that could be considered dangerous. If Susie is injured,
Johnny might be able to assert the defense of contributory negligence because she was pedaling too fast for the existing conditions. In North Carolina, that means she is not entitled to receive any compensation at all. This holds true no matter how severe her injuries are. There are rare exceptions to the rule of contribu-tory negligence. If Johnny is grossly negligent or has the last clear chance to avoid the collision, then she still may be able to recover.