Birmingham Personal Injury Lawyer

Process of a Case - Second Update

Jon Lewis — Sun, 07 Feb 2010 12:53:30 GMT

This is how the legal world works - Slowly. Not always, but a majority of the time. Typically, we are asking others to pay money on claims. The longer they hold onto their money, the better. Insurance companies usually prefer to drag the case out because they earn interest on the money they reserve for the claim.

How are our claims proceeding? With respect to the car accident claim, our clients' insurance carrier has sent us a letter regarding their medical payment benefits. Medical payment benefits are benefits for medical treatment which most people have on their auto policy. Typically, such benefits range from $1,000 to $5,000, and if you don't have health insurance or money to pay co-pays and deductibles, you may use this portion of your policy to pay these bills. This coverage is available even if the accident is your fault. In our case, we will need these benefits to pay the doctor bills because the clients do not have health insurance.

Since the liability insurance carrier has not responded to our first letter, we are sending another letter to them tomorrow giving them one more week to respond. It has been two weeks since the previous letter. Hopefully, we will get a response at this time.

In our auto misrepresentation case, we have received a telephone call from one of the dealers, but we have not received a call from any of the other potential three parties we have written to. It has almost been two (2) weeks since those were written, so we are probably going to have to follow up again this week.

Ironically, I ran into a friend at a coffee shop who knows one of the potential defendants, and they asked him about me. Birmingham is a small big town. He also asked another attoney about me who obviously responded with, "If Jon is investigating it, there is probably something to it." Who knows, but we shall see.

Not much to update, but we will hopefully have more information for the next one.

Stay Tuned.

Originally posted at InjuryBoard by Jon Lewis

What's A Death Case Worth in Alabama?

Jon Lewis — Thu, 04 Feb 2010 10:17:19 GMT

Does it matter if a car accident occurs in Alabama versus another state? In a big big way!!!! Why? Well, first because different states have different jurors and different beliefs on the values of these types of cases. But, more importantly, the law in Alabama regarding a death is different than every other state in the country. Yes, EVERY other state in the country.

How is it different? A car accident, industrial accident, medical malpractice incident, or any other incident in Alabama which involves a death is governed by Alabama's Wrongful Death Statute. The Wrongful Death Statute provides:

Section 6-5-410

Wrongful act, omission, or negligence causing death.

(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.

(b) Such action shall not abate by the death of the defendant, but may be revived against his personal representative and may be maintained though there has not been prosecution, conviction or acquittal of the defendant for the wrongful act, omission, or negligence.

(c) The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.

(d) Such action must be commenced within two years from and after the death of the testator or intestate.

(Code 1852, §§1940, 1941; Code 1867, §§2299, 2300; Code 1876, §§2641-2643; Code 1886, §2589; Code 1896, §27; Code 1907, §2486; Acts 1911, No. 455, p. 484; Code 1923, §5696; Code 1940, T. 7, §123.)

While this statute does not state damages are strictly punitive, the Supreme Court of Alabama has interpreted it that way, and the Alabama Pattern Jury Instructions clearly set forth the law:

Furthermore, any confusion on the part of the jury regarding the proper assessment of damages in this case should have been dispelled by the following charge given at the close of the arguments of counsel:

“In a suit brought for a wrongful act, omission or negligence causing death, the damages recoverable are punitive and not compensatory; damages in this type of action are entirely punitive, imposed for the preservation of human life and as a deterrent to others to prevent similar wrongs.

“The amount of damages should be directly related to the amount of wrongdoing on the part of the defendant or defendants. In assessing damages, you are not to consider the monetary value of the life of the child, for damages in this type of action are not recoverable to compensate the [family] of the deceased from a monetary standpoint on account of his death, nor to compensate the plaintiffs for any financial or pecuniary loss sustained by the family of the deceased on account of his death.”

(Emphasis added; substantially quoting Alabama Pattern Jury Instructions § 11.18.)

Quoting Atkins v. Lee, 603 So.2d 937, 942-943 (Ala. 1992).

Consequently, in Alabama, you cannot argue to the jury that they should compensate the family for the death of their father or mother. You can only argue that they can punish the person at fault. This is difficult if the other person simply ran a red light. It wasn't intentional. The same is true for the situation with Toyota. Toyota doesn't want to see people die as a result of the defect in its accelerators, but things like this happen, and a family should be compensated for Toyota's defect. They should not have to argue that Toyota should be punished because that can be an extremely difficult argument.

The 49 other states allow for compensation in wrongful death claims. They allow you to argue that a father who is killed had a life expectancy of 30 years, and as a result of his death, the family will lose that income.

What law do you think is better? Alabama's or the other 49 states? We'd like to know.

Originally posted at InjuryBoard by Jon Lewis

Process of a Case - First Update

Jon Lewis — Mon, 01 Feb 2010 19:34:23 GMT

On our car wreck claim, we have sent out the representation letters, and we are still awaiting a response from the defendant and insurance companies. This gives you somewhat of an idea of how long the process can take. We have received some medical information, but most of it is from our clients.

On the misrepresentation claim, it took some time to get all of the representation letters out. One of the car dealers called our client today, and this afternoon, they left a message on my voicemail. However, they were closed before I could get back with them. The message was disbelieving in our allegations. The individual did confirm that there was a twelve month/12,000 mile warranty on a buyback, but if that is the case, why have they not fixed the vehicle?

We shall see. Stay tuned!!

Originally posted at InjuryBoard by Jon Lewis

Death by Product

Jon Lewis — Thu, 28 Jan 2010 12:19:31 GMT

You've heard of product liability cases, but what does that actually mean? When a person is injured or killed as a result of a defect in a product, they have a product liability claim against the manufacturer. Such claims differ in various states.

In Alabama, product liability claims are governed by the Alabama Extended Manufacturers Liability Doctrine (AEMLD). Under this law, you have to prove the following in order to have a claim against the manufacturer:

(1) A plaintiff must prove he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if

(a) the seller was engaged in the business of selling such a product, and
(b) it was expected to, and did, reach the user or consumer without substantial
change in the condition in which it was sold.

(2) Having established the above elements, the plaintiff has proved a prima facie case although

(a) the seller had exercised all possible care in the preparation and sale of his
product, and
(b) the user or consumer had not bought the product from, or entered into any
contractual relation with, the seller.

Casrell v. Altec Industries, Inc., 335 So.2d 128, 132-133 (Ala. 1976) and Atkins v. American Motors Corp., 335 So.2d 134, 141 (Ala. 1976); cited in Alabama Tort Law Handbook § 19.1 (Michael L. Roberts and Gregory S. Cusimano).

This law applies to all products sold and placed in the stream of commerce.

Why am I discussing this today? Unless you have been sleeping under a rock, Toyota is involved in a massive recall over unintended acceleration with respect to several models of vehicles which it has sold. Our laws provide that Toyota is responsible for putting defective products out into the public. They made money on these products, and they need to make sure they don't injure and kill people by doing so.

This law has nothing to do with intent. Many people confuse civil and criminal laws along with the idea of punitive damages. Toyota may not have intended for this defect to be present, but they sold the product so they are responsible for the unintended consequences of injury or death. Punitive damages could be applicable would be if it could be shown that Toyota knew about this defect and disregarded it. Intent is only required in criminal actions.

Toyota is stepping up to the plate and recalling these cars. But, before they did so, they suggested that this was a floormat placement issue and made the public think this was a trivial matter. Unintended acceleration in vehicles is far from trivial, and if individuals and families are injured or killed as a result, Toyota should compensate them accordingly.

Originally posted at InjuryBoard by Jon Lewis

What's My Case Worth?

Jon Lewis — Tue, 26 Jan 2010 10:19:48 GMT

We are often asked by clients or potential clients what their case is worth. How do we answer that question? Here is a recent question submitted online publicly, and here is my answer.

QUESTION: I was involved in a car accident last June 09 . I was sitting at a red light and was hit from behind. I went to the ER . And followed up the a doctor in July because my right arm and hand was swollen she gave some pain killers. I went back in August my right arm and hand was still swollen she sent me to get xrays and then referred me to a back speacialist he sent me for weeks of physical therapy and a MRI the MRI showed I had a buldged disc at c4c5 and a ruputred disc at c5c6 with degengerative diease. Physical Therapy also said I had cervical dysfunction at c0thruc3. What amount of settlement should I expect.

ANSWER: Based upon the facts you have given, it is impossible to assess your damages. What else would need to be known? Damage to vehicles, location of collision, doctor's opinions, permanence of injury, your age, whether you have health insurance, whether the defendant has auto insurance and the amount, and whether you have coverage on your auto(s) and the amounts, among other things. If you would like to e-mail me your information regarding all of this, I could give you a better idea of what I think the value could be. However, only two groups of people can really give you the actual value of the case: the adjuster(s) who write the check or the jury who decides your case. Any other value is based upon education in this field and knowing what other juries have done in the venue where you are. My e-mail is jon@lewis-attorneys.com.

Originally posted at InjuryBoard by Jon Lewis

Process of a Case - New Series

Jon Lewis — Sun, 24 Jan 2010 12:05:45 GMT

I thought it would be interesting to follow two cases we are handling from start to finish. Obviously, we will describe the cases anonymously, but the details will give you an idea of the process.

Last week, we were employed by two different clients. In one case, the husband and wife were involved in a car wreck. By the way, you will see that we do not use the term "accident". We use "wreck", "crash", and "collision". The wreck is not an accident. It is the result of another driver failing to pay attention by choice. These clients were referred by a former client who has since gone to law school and become an attorney himself.

The second case involves fraud and misrepresentation. Our client purchased a car which had been bought back by the manufacturer in California under the California Lemon Law. He bought the "pre-owned" car in Alabama. "Pre-owned", as we all know, is the fancy term for "used". When he bought it in Alabama, the title is supposed to be branded with the phrase: "THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE IT DID NOT CONFORM TO ITS WARRANTY." Well, it wasn't. Not only that, there are more facts which I will discuss in a future post. This client was referred by another attorney.

Both clients came into our office in downtown Birmingham, Alabama and met with me to discuss their cases. I spent about thirty minutes to an hour with each. With respect to the collision case, we discussed the facts of the collision (they were rear-ended by another vehicle), the injuries suffered by the husband and wife, their medical treatment, their medical history, their insurance information, the damage to their vehicle, other personal information, how the case will likely progress, tort reform issues, and how our firm handles the case. They executed our contract and medical authorizations so that we can obtain their medical records and bills, and we ended the meeting.

What were their injuries? The wife had pain in her hip and buttocks area. The husband had pain in his neck, cervical strain, and pain in his lower back. About ten years earlier, he had a protruding disk in his lower back, and he is concerned that this wreck has re-injured that area which was already weak. He had been fine until this wreck. He was clearly in pain in my office, especially when he got up to leave. He is in his early thirties, and he should not have such pain at his age. He was following up with an orthopaedic surgeon.

With respect to the fraud case, we discussed the facts of the transaction and what has transpired since he purchased the vehicle. We discussed the legal ramifications of what was represented to him by the dealer and who might be responsible for his loss - a $19,000 vehicle which is inoperable right now. We also discussed his possible damages as a result of the misrepresentation. Again, he executed our contract, and we ended the meeting.

Our next step on each case: write representation letters to all parties and/or insurance companies who or which might be liable for the claims. We almost always try to resolve cases without litigation because it is usually most beneficial for all parties involved - less cost, time and emotional strain. In the car wreck case, we will begin obtaining medical records and bills, but we will also have to wait to see how the medical treatment will proceed as well as what the final outcome is. In the fraud case, we will wait to see how each party responds to our claims. Those claims will include: negligence, wantonness, misrepresentation, breach of warranty, breach of contract, and violations of the Alabama Deceptive Trade Practices Act.

Stay Tuned!!

Originally posted at InjuryBoard by Jon Lewis

Who are Trial Lawyers - Really?

Jon Lewis — Thu, 21 Jan 2010 09:40:38 GMT

Are trial lawyers really greedy, money grubbing individuals? Some maybe, but most are productive citizens who are small business owners contributing to their communities. Check out the lawyers on www.InjuryBoard.com. See what we do.

The attorneys on this site have not only spent their own time and money helping injured individuals, but they have also made products safer and forced companies to pay closer attention to their policies and procedures so that others do not suffer the same fate as their client. These attorneys have helped educate the public on serious issues such as texting while driving, Healthcare reform, major recalls, and how to help victims of various natural incidents.

We are also fathers, mothers, husbands, wives, church and synagogue members, PTA members, little league coaches, and friends. We are not the evil members of society attempting to extract money from various small businesses. Most of us are trying to help recover compensation for legitimate wrongdoing - see Enron, Worldcom, and Healthsouth cases as well as the family who has lost their husband/father because some truck driver was drunk or overworked and ran a red light crushing his vehicle and him along with it.

Every industry has its bad apples, and the legal industry is no different. In fact, there are defense attorneys who would rather drag a legitimate case out in order to bill by the hour and make a larger fee instead of settling a case quickly for his client when he knows his client is liable (we call that reverse ambulance chasing). What about the stock broker who churns a client's account, or the used car salesman who sells a car he knows was flooded in Hurrican Katrina.

The point is that most trial lawyers are trying to do good and right by their clients and society. Next time you hear someone criticize an industry without the facts, call them on it. Ask questions. Don't take one soundbite as the ultimate truth.

Originally posted at InjuryBoard by Jon Lewis

Sports - Safety First

Jon Lewis — Wed, 20 Jan 2010 18:03:42 GMT

There is a wonderful organization called the National Center for Sports Safety. This organization is based in Birmingham, Alabama, and its purpose is to promote the importance of injury prevention and safety on all levels of youth sports through education and research.

With all of the recent publicity over sports injuries and coaches overworking young athletes, this organization provides a wonderful opportunity for the education of parents, coaches, and the athletes. They provide a course called "PREPARE" which teaches sports first aid so common injuries are less likely to occur and are treated appropriately when they do happen.

The goal of the National Center for Sports Safety is to decrease the number of sports injuries by helping youth and high school sporting events become safer venues through Emergency Action Planning. If you are a high school coach, the parent of a high school athlete, or a high school athlete, I encourage to get involved with the National Center for Sports Safety.

Originally posted at InjuryBoard by Jon Lewis

Out-of-State Death in Trussville, Alabama

Jon Lewis — Sat, 26 Dec 2009 11:16:40 GMT

A Tennessee woman was killed in a crash on I59 near Trussville according to the Birmingham News. The incident involved two vehicles. The other vehicle was driven by a woman from Gadsden. The News did not offer any other information regarding the collision.

This crash brought to mind some questions. What happens when someone from another state is involved in a collision in Alabama? Where does the claim have to be made? What state's law controls? These are all questions which arise when out-of-state individuals are driving through Alabama and are involved in collisions.

How are these questions answered? Well, if the collision occurs in Alabama and the out-of-state individual is not at fault, the claim has to be brought against the Alabama resident in Alabama. However, if uninsured motorist coverage is involved, the out-of-state resident may bring a claim against her insurance carrier where she signed her insurance contract - typically her home state.

The law which governs the case will generally be determined based upon the type of claim. For example, if the claim is against the Alabama resident who caused the collision, Alabama tort law will govern. If the claim is against the insurance company for uninsured motorist coverage, the law where the contract was signed will generally govern. If the person from out-of-state caused the collision, the claim will be brought in Alabama, and Alabama law will probably govern.

Our firm has represented individuals from various states over the years including: Florida, Georgia, Tennessee, Mississippi, Texas, North Carolina, New York, Ohio, etc. These were people traveling through Alabama to get somewhere else or simply visiting family and friends in Alabama. These things happen, and when they do, it helps to know ahead of time what to expect.

Originally posted at InjuryBoard by Jon Lewis

A Legal Merry Christmas!!

Jon Lewis — Wed, 23 Dec 2009 13:47:43 GMT

Please accept without obligation, express or implied, these best wishes for an environmentally safe, socially responsible, low stress, non addictive, and gender neutral celebration of the winter solstice holiday as practiced within the most enjoyable traditions of the religious persuasion of your choice (but with respect for the religious or secular persuasions and/or traditions of others, or for their choice not to practice religious or secular traditions at all) and further for a fiscally successful, personally fulfilling, and medically uncomplicated onset of the generally accepted calendar year (including, but not limited to, the Christian calendar, but not without due respect for the calendars of choice of other cultures). The preceding wishes are extended without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform, or sexual preference of the wishee.

Originally posted at InjuryBoard by Jon Lewis