Birmingham Personal Injury Lawyer

If I slip or trip and fall and get hurt, what am I entitled to?

Danny Feldman — Thu, 02 Jul 2009 12:11:29 GMT

The short answer is that you are entitled to be put back into the position that you would have been in had the incident not occurred. Unfortunately, no matter how good your lawyer is or how sorry the premise owner is for your injuries, no one can turn back the hands of time. Accordingly, what happens (assuming you prevail) is that you will receive a sum of money, either through a settlement or verdict. The amount you receive is supposed to be an amount to reasonably compensate you for what you have been through.

Certain aspects of your damage claim will be fairly precise numbers. For example if you earn $500/week and you missed one week of work due to your injuries, you will have a $500 lost wage claim. Of course, defendants will argue that you should receive nothing if you had sick days or if the missed time is not as a result of doctor's orders. Further, if you are in the 1/3 tax bracket, defendant will want to subtract this amount as well.

You also will be entitled to receive the cost of your medical expenses incurred because of the wreck. Once again, it will be your burden to prove, often by very expensive ($1,000/hour or more) testimony from your doctor that your injuries, more likely than not where caused by the incident, that the medical treatment rendered was necessary to heal and cure you, and that the cost of the medical treatment was reasonable compared to the cost for similar treatment in your community. In addition, if you have health insurance, defendant will argue that all you are entitled to is the amount of your "out of pocket" co-pays and deductibles and the amount of your health insurer's subrogation claim. Forget that you have had $800/month deducted from your paycheck for the last 20 years to pay for this coverage.

The hardest to quantify area of damages generally is referred to as "pain and suffering" and mental anguish/emotional distress. It amazes me sometimes how people think that if you hurt someone and pay their out of pocket medical bills, that the injured person has been reasonably compensated. How about the inconvenience of going to numerous doctor visits; the stress of worrying about bills that aren't getting paid because you can't work; the pain you feel from the injury; the inability to do things that you like or need to do because of the injuries you suffered - for instance, not being able to go on along-planed vacation, not being able to exercise, sometimes not even being able to do the normal activities of daily living, like driving, dressing, cooking, cleaning etc.? These are the types of things that a pain and suffering award is meant to compensate. Just because it is harder to quantify monetarily should not mean that it is any less real and therefore simply should be forgotten.

Finally, in some rare cases, you might be entitled to punitive damages. Punitive damages are not designed to compensate you for what you have been through; rather they are designed to punish defendant for reprehensible conduct and to deter others from engaging in similar conduct. Punitive damages are rarely awarded, but in certain cases, they do have their place.

Originally posted at InjuryBoard by Danny Feldman

Banks Have Found A Loophole And Are Seizing SSD Payments

Stuart McAtee — Thu, 02 Jul 2009 08:00:00 GMT

In an age where banks are dodging lawsuits from every angle, they have found a way to seize money from customers' accounts causing concern not only from consumers, but from congress. As if the American people weren’t hurting enough, some banks have been seizing Social Security, disability, veteran and pension benefits from account holders in order to pay off debts, despite federal regulations protecting such funds. A group of legislators has been pressuring the Treasury Department to close the loophole that allows these heinous acts. According to the Wall Street Journal, a bipartisan group of legislators is pressing the Treasury Department to close a loophole that has allowed banks to seize Social Security and disability benefits from customers’ accounts despite federal rules intended to protect these benefits from creditors.

The loophole also has enabled some banks to seize from customers their recent $250 Economic Recovery Payments, payments to disabled veterans, and supplemental benefits to impoverished individuals from the Social Security Administration.

Federal law says creditors can’t take Social Security, disability, veterans’ and children’s survivor benefits to pay a debt. But the federal law doesn’t say how money deposited directly into bank accounts is to be protected—a gap that has given banks the ability to seize such funds. Why is it that banks line up to accept federal bailout money, then are reluctant to account for where the money went, find loopholes in the law to seize SSD money, then don't want to be accountable for either?

Originally posted at InjuryBoard by Stuart McAtee

Are Noncompete Agreements Enforceable?

Danny Lehane — Wed, 01 Jul 2009 12:49:27 GMT

Are non-compete clauses enforceable in Alabama? The short answer is yes but there are exceptions. Opinion after opinion on cases involving noncompetition agreements insists that such agreements are not favored. However, Ala. Code 1975, § 8-1-1 (a) states, “an employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the employer carries on a like business therein.” Over the course of time there developed a four prong test to determine if a noncompetition clause/agreement is enforceable.

A court will enforce a noncompetition agreement only if:

1) the employer has a protectable interest;

2) the restriction is reasonably related to that interest;

3) the restriction is reasonable in time and place;

4) the restriction imposes no undue hardship.

What is a protectable interest? The Alabama Supreme Court has explained that in order to have a protectable interest, the employer must possess “a substantial right in its business sufficiently unique to warrant the type of protection contemplated by a noncompetition agreement .” DeVoe v. Cheatham, 413 So.2d at 1142 (Ala.1982). In addition, “a protectable interest may exist when an employee is in a position to gain confidential information, (to gain) access to secret lists, or to develop a close relationship with clients.” Clark v. Liberty Nat’l Life Ins. Co., 592 So.2d 564, 566 (Ala.1992).

In regards to a reasonable scope for a time and place, typically a geographical limit and a time limit are required. A noncompetition agreement stating that an employee cannot open a competing business anywhere for an indeterminate period of time after leaving the employer will likely be held to be unreasonable and unenforceable. Thus the protection of the employer’s interest should be concise as to a narrow, identifiable group of clients and potential clients as well as a reasonable time period. Ostensibly, the same agreement with specific geographical limitations and a limited time frame will be held to be enforceable in regards to reasonableness of time and place.

As previously stated, noncompetition agreements are not favored but they are upheld if the employer has a protectable interest and the restriction is reasonably related to that interest. Further the restriction cannot be unreasonable as to time and place; lastly, the restriction cannot impose undue hardship. The burden is upon the person or entity seeking to enforce a contract which restrains a lawful trade or business to show that it is not void under Ala. Code 1975, § 8-1-1.

Originally posted at InjuryBoard by Danny Lehane

Two Dead in Jefferson County Crashes

Jon Lewis — Tue, 30 Jun 2009 09:40:00 GMT

On Saturday, August 27, 2009, the Birmingham News reported two wrecks which killed two people. The first involved a motorcycle and a pickup truck. This occurred on Second Avenue North in Jefferson County, Alabama. According to the News, the pickup truck driver did not see the motorcyclist and turned left in front of him.

How do these happen? Typically, motorcyclists are very careful drivers (not always, but in many cases). The problem, however, is motorists do not see motorcyclists. Given their small size and, many times, dark colors, cars have difficulty seeing them. Usually, the motorcycles have to have their headlight on. I'm not sure about this situation given the story, but what we need to learn from this is people need to be more careful when they are on the roads because motorcyclists and bicyclists have just as much right to the road as cars and trucks.

The second death occurred when a woman was getting her mail in Grayson Valley. An SUV collided with a car, flipped, and hit the woman. This collision happened on Watson Road. The drivers of both vehicles were sixteen years of age. Apparently, the driver of the car didn't see the SUV and pulled out in front of it.

What can we take from this collision? Maybe teenagers need more training before we give them the keys to a car. Many states have differing laws for teenage drivers. Some have to continue their training after getting their license. Some states don't allow teenagers to drive at night. With cell phones and texting proliferating, it is inevitable that teenagers will use poor judgment and use those devices in their cars. How can we stop that? I'm not saying that that was the cause of this fatality, but it is sure to happen in the future, and we need to consider these issues.

Originally posted at InjuryBoard by Jon Lewis

South Carolina Surprise

Jon Lewis — Mon, 29 Jun 2009 21:36:08 GMT

It was reported this past week that South Carolina Governor, Mark Sanford, has had an affair. The media has treated this as landmark news. What I think would be landmark news is a politician who has not had an affair. Is this surprising? Should we expect anything less?

Why am I writing about this? Because I meet with clients every day who show surprise when the law doesn't go their way. What do I mean?

Let's take arbitration for example. Clients come into the office after being defrauded by a company or had a contractor treat them wrong. After reviewing the contract and seeing the arbitration clause, I tell them that they cannot sue the defendant in court. They have to arbitrate the claim. The reaction, "What?" "Are you kidding me?" "How can they do that?"

Or, what about when I have to explain Alabama's wrongful death law. In Alabama, when someone is killed by the negligence of others, you can only sue the other person or company for punitive damages, not compensatory damages. In other words, we have to argue to the jury that they must punish the defendant, not compensate the victim's family. That becomes VERY difficult when the defendant made a mistake such as running a red light or changing lanes without looking properly.

What is the respective clients' reaction to this? "What?" "Are you kidding me?" "How is that possible?"

What's the moral of the story? Pay attention. Pay attention to your spouse and to politicians, and maybe, you won't be surprised. Pay attention to your legislators and judges. Know what laws they are passing. Lobby your congressmen and let them know that these laws aren't right and need to be changed.

Originally posted at InjuryBoard by Jon Lewis

Healing from an automobile accident - Part IV

Beth Scherer — Mon, 29 Jun 2009 14:33:24 GMT

The last three articles dealt with the nutritional, physical and emotional stress that one deals with after an automobile accident along with some tips on how to cope with them. Part IV deals with an area of stress that most people tend to ignore - their posture and nervous system. Most people are not aware that the master system (which includes the brain and the nervous system) are tied into posture, and that it is imperitive to keep both healthy in order you maximize your life's potential.

In order for ANYTHING in your body to function, the brain needs to send the message down the spinal cord. The messages then go through a network of nerves to send the message to the body. The body then functions. If this message is interrupted (as in the case of a spinal cord injury), the brain cannot send the proper message to the body and the body cannot perform its function. The body then breaks down.

When people are involved in a trauma or injury, the spine can make shifts which can disrupt the nervous system flow to the body. When the spine shifts, not only will this irritate the nervous system, but the muscles will contract around that area, which leads to muscle spasms and pain. The joint locks up. If that joint is not motioned properly, then over time degeneration may occur. This is why it is so important to see a specialist such as a chiropractor to analyze the spine and see if the joints are moving properly. If not, then a person can not only impede their healing process, but he/she can suffer joint damage 10 years, 20 years down the road.

It is also imperitive to work on the muscles as well. Physical therapy, Exercise therapy, Massage therapy are also crucial because if the muscles are weak, they cannot support the spine. Proper posture is also important, because improper posture places unequal stress throughout different areas of the body, causing tension and nervous system irritation.

The following are some tips to follow. Of course, check with your physician first before beginning any regimin.

1. When standing, try to keep your shoulder and hips even. Keep your toes facing forward .

2. When sitting, try to keep your ear and shoulder even. Dont lean your neck forward, as this will cause shoulder tension and headaches. If you are working on the computer, adjust your keyboard so that you can align your ear with your shoulder.

3. When bending and lifting, concentrate on keeping your hips and shoulders level. Don't bend and twist at the same time as that will lead to extra stress on your disc.

4. Try not to carry heavy things on one shoulder (eg ladies and their purses).

5. When driving, don't sit on a wallet (for men). Try to have lower back support. roll up a hand towel if you have to. Get out every hour or so and walk around.

6. When lying down, put some pillows under your knees while laying on your back to flatten your lower back into the floor. If you are laying on your side, put a pillow in between your knees. Invest in a good neck pillow that will support your neck while you sleep.

It is my goal in writing these four articles that those involved in an automobile accident can heal faster by taking this advise. If you have any questions, please feel free to contact me at 205-862-6776.

Beth Scherer,DC

Originally posted at InjuryBoard by Beth Scherer

High Court Nominee Appears Favorable, Disability Advocates Say

Stuart McAtee — Mon, 29 Jun 2009 08:00:00 GMT

President Obama recently nominated Sonia Sotomayor to the US Supreme Court much to the delight of some groups, while to the chagrin of others. Disability advocates are encouraged by the nomination saying that the current appeals court judge’s rulings show an understanding of disability and the rights of people who have disabilities.

“Based on our preliminary analysis of Judge Sotomayor’s extensive record on the bench, we are encouraged that she may be the champion we have been looking for,” said Andrew J. Imparato, president and CEO of the American Association of People with Disabilities. “Her jurisprudence in the disability area shows that she has a good understanding of the real life implications of her decisions and sees the important connections between disability rights laws and other civil rights laws.” Read article here.

As a judge on the U.S. Court of Appeals, Sotomayor considered cases related to the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA) as well as the Social Security and Medicaid programs, according to an analysis of her rulings from the Bazelon Center for Mental Health Law.

Let's hope that if confirmed, Judge Sotomayor will fight for the rights of disabled Americans.

Originally posted at InjuryBoard by Stuart McAtee

Social Security Disability Fraud: It Affects Legitimate Claims

Stuart McAtee — Thu, 25 Jun 2009 08:00:00 GMT

According to an Associated Press release, a Nevada boxing judge has been indicted in Las Vegas on a federal charge that he improperly collected about $250,000 in Social Security disability benefits.

U.S. Attorney Gregory Brower said in a recent statement that 65-year-old Paul G. Smith worked more than 100 boxing matches from September 1994 and December 2005 and was involved in several other businesses inconsistent with his disability status.

A federal grand jury handed up a one-count indictment in May charging Smith with Social Security fraud.

Brower says Smith received a summons to appear for arraignment June 12 in U.S. District Court in Las Vegas. He faces up to five years in prison and a $250,000 fine if convicted.

Social Security Fraud affects us all.

Originally posted at InjuryBoard by Stuart McAtee

Executing a Contract: Do I Need an Attorney?

Danny Lehane — Wed, 24 Jun 2009 10:35:19 GMT

At some point an individual will need an attorney to draft or interpret a contract. Whether one elects to use an attorney is a different matter. So, let us look at the if, when and why one would or would not need an attorney:

If during the course of your vast or not so vast education and life experience you have developed great skill in drafting, interpreting and reading innumerable contracts you could reach a point where you may not need the assistance of an attorney. However, most fall into the Homer J. Simpson category in regards to proofing multipage contracts: “I am not signing this until I read it OR someone gives me the gist of it.” Here is a little gem for you: if someone is requiring you to sign a contract, it is likely not for your benefit. Typically a contract handed to you for your signature is written for the benefit of the party requiring you to sign.

There is nothing like reading a bunch of words you do not understand and acting like you really do by giving the occasional head nod and uttering monosyllabic phrases such as “hmm” and “ah”, as you pour over a one hundred page plus document in the presence of every one waiting for your signature. Somewhere around page 15 of 110 pages is where, if you have glasses, you take them off, sit back and pretend to ponder the magnitude of the clause/paragraph (of the first part that is a subpart of the foregoing clause, notwithstanding the exclusivity of the previous clause…what?) that you just read. Note: even though you have no clue what you are reading, removing the glasses and giving that far-off pondering look makes you look quite intelligent.

At some point during this real-time unfolding disaster you will get the urge to ask what you think will be an intelligent question. This irrepressible force will rise through your body like lightning flashing from the east to the west. By this time you have arrived at the very sobering realization you have no screaming idea what you are reading and are about to commit to. You just know that a question must be proffered. Since you have no idea what you have read you know the question will not be designed to discover pertinent and vital information. No, this is purely a question for show. You have got to let these cats know that you know exactly what you are reading and furthermore we are all on the same level of expertise here. Thus, you ask the question: "As I read through these myriads of paragraphs and clauses, uh, it is clear to me that the, uh, intended bifurcation of the contractious* obligation of the first party to the, uh, second party is obilquitoius* and is drawn in a hypotanusian* manner which shall render all parties, uh, intrapulously* and incondruosly* bound. Am I correct in this interlopulation*?” The sound of crickets is a true indication these academicians have been duly impressed. So, put that in your contract drafting pipe and smoke it. (It should be noted that the words designated with the * are not real words. You knew they were not real words when you somehow formed them and utilized them. However, they sounded smart. Also, saying “uh” in strategic places throughout the question gives the appearance that you gave great thought to this inquiry when in reality this was pulled right out of your boo-tox.)

The bottom line is this: if you are entering into an agreement that requires a signed contract the safe route is to, at the least, get an attorney to review the document and advise you. If you have a contract written in pencil or crayon and the word “contract” is one of the many misspelled words you are likely going to be able to handle that one on your own.

Originally posted at InjuryBoard by Danny Lehane

If I slip or trip and fall can I sue?

Danny Feldman — Tue, 23 Jun 2009 08:31:39 GMT

Every time someone falls down, people make jokes that the injured person will end up "owning the place." What does the law say about a premise owner's potential liability if someone falls on your property?

In Alabama, and a few other states, it depends on the right, or lack thereof, that the person who fell had to be on the property. For example, the duty of a premise owner to someone who is trespassing on their property is very, very low. On the other hand, if someone is a "business invitee" - that is, if someone is on the property to benefit the property owner (like a customer of the store or restaurant) then the premise owner has a higher duty. However, that duty basically is not to be negligent - or in other words, to act as a reasonably safe business owner would act in similar circumstances.

Let's take a look at a couple of examples. Say you visit Wal-Mart or any store for that matter and another customer walking directly in front of tosses the proverbial banana peel. With your next step, you slip on it and break your neck. Can you sue Wal-Mart? Sure. Will you win? Absolutely not. You must show more than the fact that you fell on the store's premises and that you got hurt. You must show that the store was negligent. In the example above - what did the store do that was unreasonable? Not a thing. So, while you may have a claim against the person that tossed the peel (good luck recovering on that, unless the person happens to be Donald Trump or someone else of personal means) you do not have a claim against the store.

Let's vary the facts a bit. The same customer tosses the banana peel 8 hours before you enter the store. A manager sees it 15 minutes later and instructs an employee to clean it up. The employee gets distracted and does not do it. A couple of hours go by and the manager sees the peel again. He means to get on the employee for not picking up the peel, but he too gets distracted. Another couple of hours go by. Several other managers and employees see the peel, but do not remove it. You don't see the peel; slip and fall and break your neck. Negligence? Maybe - it'll depend on what the jury thinks. Was it reasonable for the store to leave the peel on its floor for 8 hours? Does the peel constitute a dangerous or hazardous condition? What about the customer - shouldn't he have seen and avoided the peel?

In my next blog, I'll address in more detail some of these issues and "affirmative defenses" So, the answer to the question is "yes" - if you fall you can sue, however, whether your lawsuit has any reasonable chance of success is another matter entirely.

Originally posted at InjuryBoard by Danny Feldman