Automobile Accidents

December 9, 2010

How Do You Determine Who Is At Fault in A Wreck?

I was in an intersection wreck. I say it was the other guy’s fault. He says it was my fault. Who decides who was at fault?

If a lawsuit is filed a jury usually decides who is at fault (unless a jury is not requested by either party to the case, in which event a judge decides). The jury will listen to your side of the story, the other driver’s side of the story, the testimony of any witness, and review any physical evidence at the scene. Sometimes expert witnesses are hired to explain what happened.

At the end of the day the jury considers all of the evidence, hears the law explained by the judge and uses common sense to decide who probably caused the wreck. Under our system of justice, the person who files a lawsuit only needs to prove that more likely than not the other driver caused the wreck. If the person who files the case is unable to prove that the other driver more likely than not caused the wreck the case will be lost.

December 4, 2010

Can I Tell From How Much Insurance Someone Has By Knowing What Type of Car They Have?

by The Law Offices of John Day, P.C.

I was in a car wreck and was hurt bad. The other driver was driving a new car. I have been talking with the insurance company for the other driver. I asked how much insurance was on the car and the insurance adjuster would not tell me. I guess the other driver has lots of insurance because she was driving a new car, right?

Maybe. There is no way to know for sure how much insurance someone has just by looking at the type of car they are driving. It is reasonable to assume that a person who has a new car has enough money to purchase a responsible amount of liability insurance, but some people spend all of their money on their car and buy the minimum insurance they are required to have in Tennessee – $25,000 per person, $50,000 per accident.

Because Tennessee has no formal way of insisting that insurance companies reveal how much insurance coverage they have until after a judgment is obtained, I often look at the type of car, the at-fault driver’s home, the at-fault driver’s job and other factors to make an educated guess about how much insurance is available. Sometimes my guess is right, sometimes my guess is wrong. At the end of the day, however, if my client has a case that is worth more than the offer the insurance company has given and has represented that no more insurance is available, I insist (with my client’s permission) that the insurance company prove that the at-fault driver has no more insurance applicable to the claim. The is accomplished by requiring a copy of the declarations page for the insurance policy and an affidavit from the insured stating that no additional insurance is available.

November 24, 2010

Thanksgiving Day Car and Truck Wrecks

by The Law Offices of John Day, P.C.

Be especially careful when you drive this holiday weekend. People will be rushing from house to house to participate in Thanksgiving activities and all too many of them will be under the influence of alcohol. The cars will be filled with children, which increases the likelihood that the driver of the car can be distracted.

Have safe travels during this Thanksgiving holiday.

November 18, 2010

I Was Hit By A Police Car!

by The Law Offices of John Day, P.C.

I was driving to work in Franklin, Tennessee. A police car driven by an officer who was on-duty ran a red light and hit my car. I had to go to the hospital in an ambulance and spent three days in the hospital. Can I sue the police officer?

No, you cannot sue the police officer. Tennessee law does not permit you to sue a government employee who negligently caused an automobile wreck while he or she was on-duty.

However, you can sue the governmental entity that employed the police officer, and it is responsible for the harm caused by the police officer if he or she is found to be negligent. There are special laws that limit the liability of governmental entities that cause harm to their citizens in automobile wrecks and other types of personal injury cases, but an experienced personal injury lawyer can guide you through this process.

November 12, 2010

Can I Require the Insurance Company to Pay Interest on My Personal Injury or Wrongful Death Settlement?

by The Law Offices of John Day, P.C.

I was hurt in a car wreck six months ago. It wasn’t my fault. I have been waiting for over a year for the case to settle. I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance. Can I get the insurance company to pay interest on my settlement? It doesn’t seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law. Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest. Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.

November 5, 2010

Bankruptcy and Filing of Personal Injury or Wrongful Death Claims

by The Law Offices of John Day, P.C.

I was hurt in a car wreck 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 driver of the other car. 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.

November 4, 2010

Car Insurance In Tennessee

by The Law Offices of John Day, P.C.

When I complained about my car insurance rates my agent said that the reason rates were so high was lawsuits. Is that right?

Well, it is true that insurance companies pay claims and, when they don’t pay the claims they should or don’t pay a fair amount lawsuits will be filed. Of course, that is the business they are in.

The facts are that Tennessee consumers and juries are very conservative and our insurance rates reflect that. While no one likes writing a check to an insurance company, Research reveals that Tennessee has the 8th lowest auto insurance rates in the nation.

November 1, 2010

How Many Jurors Do I Need to Win?

by The Law Offices of John Day, P.C.

I have a personal injury case going to try in Cookeville, TN next month. How many jurors need to vote for me for me to win?

You will probably have a 12-person jury. That is the typical number of jurors in a civil jury trial in Tennessee. You and your opponent may agree to a lesser number of jurors, but you will almost certainly have 12 jurors (and one or more alternate jurors) hear the case.

All twelve jurors must vote for you for you to win the case. Some states permit a lesser number (10 of 12, 9 of 12) but in Tennessee the jury verdict must be unanimous unless the parties to the lawsuit agree on that the verdict may be something other than a unanimous verdict. For obvious reasons, the defense will rarely agree to such a proposal.

October 26, 2010

I Was Uninsured and Caused a Car Wreck. Now I Am Getting Sued by Other Driver’s Insurance Company. Help!

by The Law Offices of John Day, P.C.

I ran a red light four months ago and hit another car. The other driver was not hurt. It cost the other driver $3200 to get his car fixed. He asked me to have my insurance company pay it and I told him I didn’t have any insurance on my car at the time. Now his insurance company is suing me. What’s up with that?

You caused a wreck and you are responsible for the harm and damages you cause. You were lucky you only caused property damage and not a personal injury, but you are responsible for reasonable cost of fixing the car and for loss of use of the car while it was being fixed.

The other driver’s insurance company paid because you did not have insurance. This insurance company now has a right to seek reimbursement from you. This is called "subrogation."

October 25, 2010

Some Lawyer Called Me About My Car Wreck

by The Law Offices of John Day, P.C.

I was in a car wreck last week. I was hurt pretty bad. I got home from the hospital last night and a lawyer called me and said that he wanted to represent me in my case. I have no idea who this guy is or how he got my name and telephone number. Nobody in my family has ever heard of him. Can he call me like this? Should I hire him? He said he could get me a lot of money.

This lawyer is a scumbag – not only should you not hire him but you should report him to the Tennessee Board of Professional Responsibility. Rule 7.3(a) of the Rules of Professional Conduct says this about soliciting a potential client by telephone: "(a) If a significant motive for the solicitation is the lawyer’s pecuniary gain, a lawyer shall not solicit professional employment by in-person, live telephone, or real-time electronic contact from a prospective client who has not initiated the contact with the lawyer and with whom the lawyer has no family or prior professional relationship." The Comment to the rule explains why is exists:

[1] There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a specifically targeted recipient subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.