Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

I was hurt in a wreck with a tractor-trailer six months ago.  I lost my job and my medical bills are enormous.  I am behind on my mortgage and have been unable to make my car payments. Should I file bankruptcy, get my financial house in order, and then file a lawsuit against the trucking company?    I want to be able to get rid of all this debt and be able to keep whatever money I recover in the lawsuit to meet my needs for the rest of my life.

There is a major problem with your plan.  When you file for bankruptcy you are asked to answer questions under oath about your assets and liabilities.  One of the questions you will be asked is whether you have any claims against another person or entity.  Thus, you will have to tell the Bankruptcy Court that you have a claim pending against the trucking company.  This is true even though you have not filed a lawsuit - you still are considered to have a claim pending that must be disclosed to the Court.

When you tell the Bankruptcy Court that you have a claim pending that fact will be taken into account in determining whether you are a candidate for bankruptcy and what amount should be paid to your creditors.  As I explained in a prior post, you will also lose significant control over the progression of your case.

You may think that you could avoid this mess by simply not disclosing the claim on your Bankruptcy Court petition.  This would be a serious mistake.  Not only could you be charged with a crime for not disclosing the claim,  but it is possible that you could lose your right to assert the claim against the trucking company.

So what should you do?    Hire an experienced personal injury lawyer to help you determine if your claim against the trucking company has merit.  Then, let the personal injury lawyer find you an experienced bankruptcy lawyer who can help determine if you are an appropriate candidate for bankruptcy and, if so, what type of bankruptcy.   The coordination of efforts of these two professionals will reduce the likelihood that your situation will become worse than it already is.

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I have never filed a lawsuit and don't know anything about what happens in a trial of a personal injury or wrongful death suit.  Can you explain it?

Sure.  In fact, we have written this Legal Guide that I think will answer your questions

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I was in an automobile wreck.  The front airbag did not work.  I received injuries to my chest and face.  Do I have a case against the auto manufacturer?

You might.  Airbags are designed to fire under certain circumstances, the most important of which include the speed at impact and the angle of impact.   An airbag is not designed to fire in every accident.

An experienced product liability lawyer can tell you whether it makes economic sense to investigate a claim against the auto manufacturer.  Be sure to preserve the car and do not alter it in any.

If there is a valid case here Tennessee law requires that  it must be filed in court no more than one year after the wreck that caused the injuries.   Also, Tennessee has what is known as a "statute of repose" in products liability cases.  It says that claims against a car manufacturer (and the manufacturers of most products) must be filed no more than 10 years after the product is sold to the first user or consumer.   Thus, there are two deadlines which apply:  one year within the date of the injury, but no more than 10 years after the date of original sale.  These rules can be tricky to apply, so I would suggest you talk to an experienced product liability lawyer as soon as possible.

You can read more about product liability cases in Tennessee here.

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My income tax returns do not include income from a second job I have been working over the last few years.  I was hurt in a wreck and missed 6 weeks of work from both jobs.  Am I going to be able to recover my lost income from both jobs?

You might, but if you push too hard you may find yourself in the situation where the IRS finds out that you are been cheating on your taxes and you may face criminal and civil penalties for your failure to report income.   Also, if the jury finds out that you have not been paying taxes as you should it may hurt your case.

Defendants in cases frequently ask for income tax returns to prove loss of earnings claims, and it your income is not reported it makes it very difficult to recover it.  This is often a problem in cases involving small business owners, who all too often understate their income and overstate their expenses in an effort to reduce their taxes.  Doing so is not only illegal but also hurts your ability to prove your true damages in a personal injury or wrongful death case.

This is yet another reason to fulfill your duty to our country and pay the taxes you owe.  None of us like to pay taxes, but the way to have your voice heard on that issue is through the ballot box, not cheating on your taxes.  To be sure, take legitimate deductions and seek tax advise as appropriate, but pay what you owe.

If you get hurt to the extent you are losing income but you have not paid taxes as required by law, tell your lawyer about it as soon as possible.   An experienced personal injury lawyer can help you with this issue.

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I was hurt in a truck wreck, and someone told me that truck drivers and trucking companies have special rules to follow.  Is that true?

Yes.  In addition to the normal rules of the road (stopping a stop signs, driving the speed limit, etc.)  truck drivers and trucking companies have a large number of federal regulations and state laws that they must follow.  These special laws are designed to make our highways more safe.  

To learn more about this subject, read our Legal Guide called "Understanding Truck Wrecks in Tennessee."

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I hired a lawyer to help me with a personal injury case.  The case has settled.  I agreed to pay him one-third of my recovery and his expenses.  He has sent me his expenses and it includes 3 flights on his plane to and from the city where I live.  The cost of these flights was $1500 each way - a total of $9000.  A commercial flight is only a couple hundred dollars per trip.  Do I have to pay this money?

A key factor is the language of your contract.   Did the lawyer disclose that he would be traveling on his private plane and the cost of each trip?   If all of this was disclosed and you agreed in advance to pay these charges, you are probably stuck with the charges (although there is no harm in asking the lawyer to waive a portion of the charges).

Private plane flight is very expensive, and many lawyers who fly their own plane will not charge the cost of using the plane but instead will only charge the amount that it would have cost to fly the same trip on a commercial flight.  

I recommend that you should never hire a lawyer who insists upon billing you for the cost of his or her plane for more than the cost of a commercial flight.   These expenses can add up in a hurry.  While I certainly understand that the lawyer may save time flying a private plane,  the lawyer should not be charging you for the benefit he or she gets from saving time.  If you don't have a problem with your lawyer using a private plane for travel, make sure you have a clear, written understanding about when it will be used and how much it will cost per hour or mile.

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I got hurt in a truck wreck.  I spoke to a Tennessee lawyer and he said I had a really good case.  I have lost my job as a result of the wreck and my finances are a complete mess.  This lawyer said that if I would hire him to help me on the case he would loan me $1000 per month while the case was pending and that I could pay him back, without interest, when the case was over.  Is there any reason I shouldn't do that?

Yes.  You should not do it because the lawyer's offer of money to you was a violation of Tennessee ethics rules for lawyers.  A lawyer can advance the costs of pursing the case, but cannot give a client money for living expenses or a fee for hiring the lawyer for the case.

So, you might ask, why should you care?  The lawyer's ethics are not your problem.   You need money.  The lawyer is willing to loan it to you.  Whether he or she violates ethics rules is really none of your concern.

Perhaps.  But I suggest you think about it like this:  If a lawyer  is willing to violate the rules of ethics to get a client - to risk getting kicked out of the legal profession to get you as a client, what else will he do to actually make money on your case?  Will he give you his true opinion of the value of the case, or deliberately lower it to make sure it settles and he gets his money back?  Will he pay a witness to testify in your favor - a crime that puts your entire case at risk?  Is this really the kind of person you want representing you>

No, stay away from any lawyer who offers to pay you money or loan you money.  Such lawyers are dishonest and do not deserve you as a client.

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How does a jury know what the law is?

The judge tells the jury what the law is. The judge does this twice – once at the beginning of the case and once at the end of the case. The jury is told that it is its job to determine the facts based on the law given to them by the judge.

To see how jury instructions fit into the entire trial picture, read our Legal Guide called “Understanding What Happens At Trial of Personal Injury and Wrongful Death Cases in Tennessee.” 

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 I was hurt in a car wreck last year. I having been talking with the other driver’s insurance company and they tell me that they are going to make me a settlement offer. How much time do I have to file a lawsuit in the event I don’t get the case settled on my own?

In Tennessee you ordinarily have one year from the date of a car or truck accident to file suit against the responsible parties. Do not assume you have more time unless a lawyer familiar with all of the facts advises you that you have more than one year.  Failure to file suit on time will result in a loss of your rights.

However, you should not wait until the eve of the one-year deadline to contact a lawyer. A lawyer needs time to conduct an investigation and do the paperwork necessary to file a lawsuit.

Finally, it would be a mistake to assume that it always makes sense to try to settle a case on your own and hire a lawye only r if you could not get a settlement worked out. First, valuable evidence may well disappear in the days and weeks following an accident. Second, you will be negotiating with a experienced claims representative and attempting to place a fair value on yourself without any experience on how to do so. You may be seeking too much money for your claim – or too little.   Third, settlement of a car accident claim frequently requires work with health insurance companies and health insurance providers to finalize the claim.  

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I was in Chicago and riding in a taxicab that got hit by another driver from Chicago. I spent four days in the hospital in Chicago and have been continuing to see a doctor in Tennessee. What rights do I have? Do I have to go to Chicago to hold the people who hit me responsible?

People in other states have to follow the same basic rules as drivers in Tennessee, and they are responsible for the harm they cause if they are negligent in the operation of their vehicle.

However, usually a lawsuit for such claims must be brought in the place where the accident occurred or where the other driver resides. (There are some exceptions to this rule – an experienced personal injury lawyer can tell you if the driver or the driver’s employer can be sued in Tennessee.)

We have helped Tennesseans who have been hurt in other states (and Canada) and could not sue the person who harmed them in Tennessee. In these cases, we investigate the facts and the law and work to resolve the case without filing suit. If the case cannot be settled for a fair amount, we work with a lawyer from the city and state (or country) to file suit and proceed with the case. We share the fee we would otherwise charge with this lawyer and the total fee is the same as if we were able to file the case in Tennessee. We have relationships with lawyers around the country who can work with us in these cases.

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My wife gave me herpes.  She did not have herpes when we got married.  She confessed that she has been sleeping around.   We are getting divorced. Can I sue her for giving me herpes?

Yes.   A person can sue another for negligent (or intentional) transmission of a sexual disease. If you prove that you contracted the disease from her, you can recover damages for your medical expenses, future medical costs, and pain, suffering and loss of enjoyment of life.

One practical problem with this type of lawsuit is that any money you win can only be collected out of your wife’s assets and future income. If she doesn’t have any money and won’t be making much in the future you will have difficulty collecting any money from her. In addition, filing this type of suit can greatly increase tension in the divorce proceeding and, if children are involved, may impact your relationship with your wife as the two of you work to parent your children. These factors and others need to be considered before filing this type of lawsuit.

An experienced personal injury lawyer can work with your divorce lawyer to help you in this matter.

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My son was hurt in a wreck with a big truck.   He had a severe injury to his knee and is missing the basketball season. He is the best player on his sixth grade team. I worry that he will never be able to play professional basketball. Can he receive damages for the loss of income from a professional basketball salary and endorsements?

Questions like this are quite frequent. Tennessee law says that damages must be reasonably certain and not speculative.    Damages need not be proven beyond a reasonable doubt, but the damages sought must be reasonably likely to occur because of the defendant’s negligence.

It would be very difficult to prove that a sixth grader would have played professional basketball.   It is possible – almost all professional basketball ball players played basketball in sixth grade and, if I had to guess, most of them were better-than-average players in sixth grade. 

On the other hand, very few sixth graders who play basketball make it in the pros – even those that are the best in their school and even their city at that age.

So,  let me say that without knowing a bunch of additional facts not revealed in this question that it is highly unlikely that you could successfully assert such a claim.

Once again, the facts make a difference. If your son was not in sixth grade but rather a starting forward on the 2010 Duke basketball team and  had been frequently listed as a hot prospect for the pros, he would have  a very high likelihood of being able to prove that knee injuries in a motor vehicle wreck cost him a professional basketball career (assuming this was backed up by his doctors). Under this scenario, an experienced injury lawyer would get the right medical experts, professional scouts, sports compensation experts, and economists to prove the damages.  

But a sixth grader?  That is a tough case to make.

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 Why do I have to get released from medical care before my case can go to trial?

There is no law that says you must.  However, most lawyers would agree that in cases where there is an injury that is likely to completely heal or one that will reach a certain stable level within a reasonable period of time it makes sense to not have a trial until the doctor says you have reached “maximum medical recovery.”

This is necessary because a jury must be able to determine whether it is likely you are going to have permanent injuries and whether those injuries will affect your income. Also, it is important that the jury have a handle on your medical bills, and it you are still actively seeking treatment it will be difficult to get a grasp on the amount of the bills you will incur.

There are several exceptions to this rule. For instance, some people are hurt so severely that they are going to have active medical care for the rest of their lives. In those cases, the prudent lawyer will wait until the injured person has reached a level of recovery such that competent experts can render an opinion within reasonable probability what future bills will be incurred and what impact the injuries will have on the person’s life. Whether this is six months or two years after the incident depends on the circumstances.

An experienced personal injury lawyer will help you make a decision about when it is appropriate to go to trial in a case.  

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