Birmingham Injury Blog

In Alabama, like most other states, Insurance companies are required by law to offer uninsured or underinsured (also known as UM/UIM) motorists coverage. You will only not have this coverage if you opt out of it. Unfortunately, many people opt out of this coverage and don't even know it.

First of all, what is UM or UIM insurance? This is insurance coverage that will pay if you are hit by another driver who doesn't have insurance or where they don't have enough insurance to cover your injuries. You must first exhaust the other person's insurance before you can tap into your own insurance. The cost to have this type coverage is only a few dollars a month for a minimal policy of $20,000 or $25,000.

Why would someone opt out if this coverage? Most people opt out of this type coverage without even knowing they are doing so. In order to do so, you must expressly in writing agree to that you are waiving UM/UIM coverage in your policy. Typically, we see clients who, when buying auto insurance, told their agent that they wanted to cheapest policy available, not knowing that this would opt then out of this important insurance. While some good agents will explain UM/UIM coverage and why they wouldn't want to waive it, many do not. The person buying insurance is given a stack of papers to sign without explanation and many don't read through what they are signing. (To be honest, I don't know many lawyers who read all of what they are signing. The papers are very complex, single spaced, and in small print. And, if you want to purchase an insurance policy you'll have to sign.)

However, we believe it is not a good idea to waive UM/UIM to only save a few dollars a month. If you are injured through the fault of another who doesn't have insurance the results can be devastating. For example, if you were hit by someone and that caused you to be out of work for 2 months, and if you have UM, you could make a claim for lost income on your own insurance. Otherwise you would be out that money with no recourse.

We highly suggest your purchase this coverage. And, if for some reason you decide you do not want it, make sure you understand exactly what you are giving up and make sure your agent has explained it to you.

Mark Zamora, who also graduated from the Cumberland School of Law like we did, has an excellent set of request for production of documents for use in a truck wreck case. While each case is different, this is a good starting point for lawyers handling truck wreck cases. We commend it to your good use.

Justice Begins Here has reported a 1.5 million dollar verdict in Macon County in a slip and fall. According to the post,

As a result, Mr. Lawrence fell and suffered multiple spinal cord injuries. The verdict was for $1 million in compensatory damages (to compensate Mr. Lawrence for his injuries, lost wages, future lost wages and future care) and $500,000 in punitive damages (to punish VictoryLand and send a message to other establishments).

We appreciate the lawyers at Justice Begins Here, Lewis & McAtee, P.C. for alerting us to this important verdict. Slip and fall cases are very difficult and often times people don't think about someone really suffering an injury from slipping or tripping due to the defendant's negligence but this case reminds us that a victim can be seriously injured in one of these cases.

Be careful out there and if you are injured, get medical help as soon as possible and contact a good personal injury attorney for a free consultation to know what your options are in your particular situation.

Congratulations to the Beasley Allen firm for its verdict on Thursday, February 22 against AstraZeneca PLC. This was a difficult and hard fought case that is far from over.

The Beasley firm represented the State of Alabama claiming that the drug company had over-charged the State's medicaid system for drugs. Through the trial process, they discovered that the drug company had been charging medicaid one fee and then selling the drugs to wholesalers for much less money.

After hearing all of the evidence, the jury returned a verdict against AstraZeneca PLC for a total of $215 million, $40 million in compensatory damages and $175 million in punitive damage. The drug company vehemently denies any wrongdoing and plans on appealing.

To read more about read the story at several different cites including, here, here or here.

This was an important win for the State and several other states, as there is another trial scheduled in April under the same theory, but against another drug manufacturer. Additionally, other states are looking at bringing similar type suits. We wish them luck.

On our Alabama Consumer Law Blog, we recently posted about the requirement by Hyundai to submit any claims to arbitration. While you ponder that from a consumer standpoint on being able to properly enforce your lemon law rights, consider this interesting video of a Hyundai van. We don't know the details but it does cause you to raise an eyebrow, eh?

Here is one more car wreck video - of course in the real world the impact is not always so controlled but this does show what happens to a car in a frontal impact....

This video is a little bit long (15 minutes) but it is very interesting to see what happens to various popular vehicles when there is an impact from all different directions. This reminds us why the human body can be so badly injured - even if the car survives - that force and energy from the impact can travel to the human body. We hope you find this video interesting and educational and make your own experience with crashing cars limited to watching videos....

We found this YouTube video showing what happens when a 4X4 t-bones an older (1992) Honda. This shows the terrible impact that can result when high speeds are involved in a wreck. Be careful out there driving....

You can also see the vulnerability of SUVs to roll over when in a wreck.

Yesterday the United States Supreme Court ruled against an injured man and in favor of a medical device manufacture in an 8-1 ruling. The basis of the ruling was that the Food & Drug Administration (FDA) had approved the device so that consumers are not allowed to sue under state law claiming that the device was defective or that the warning was inadequate.

The excellent Washington Post article by Robert Barnes summarizes the case:

The court ruled 8 to 1 against the estate of a New York man who was seriously injured when a balloon catheter manufactured by Medtronic burst during an angioplasty in 1996. Charles Riegel, who died three years ago, and his wife sued under New York law, alleging that the device's design was faulty and its labeling deficient.

Justice Antonin Scalia, writing for the majority, said federal law preempts the imposition of liability under state laws for devices that have undergone the Food and Drug Administration's pre-market approval process, the most rigorous of the FDA's testing procedures.

Justice Ruth Bader Ginsburg was the lone dissenter. Congress did not intend the preemption clause, Ginsburg wrote, "to effect a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices."

The Washington Post article notes the basis for the majority's opinion (authored by Scalia) is

Allowing juries to award damages when something goes wrong, Scalia wrote, would be unfair. A jury "sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court," Scalia wrote. Patients "would suffer without new medical devices if juries were allowed to apply the tort law of 50 states to all innovations."

We are pleasantly surprised at the reaction among congress -

"The Supreme Court's decision strips consumers of the rights they've had for decades," said Rep. Henry A. Waxman of California, the chairman of the House Committee on Oversight and Government Reform. "This isn't what Congress intended, and we'll pass legislation as quickly as possible to fix this nonsensical situation."

The whole issue of federal preemption of state law is very active one that we will continue to watch as the more the courts find preemption the more state law claims are swept away without normally any federal claim being put in its place to compensate injured citizens of Alabama and other states.

A shockingly high number of Alabama citizens are killed in train collisions every year. Most of us here in Alabama experience train crossings at least periodically. Why do collisions happen and what are the legal issues?

We represented a surviving family member in a train case and the train lawyer demanded to know in the deposition whether the train had come off the tracks and hit the car. Or did the car pull out in front of the train. The answer was the car pulled out in the path of the train. The lawyer sat back with a smug grin as if he had discovered the theory of relativity before Einstein.

There is a lot of PR out there by the train industry saying that if you pull out in front of a train its because you were "racing" the train. This is just plain wrong. Now, some do try to beat the train or ignore the stop signs or are drunk but not everyone who pulls out in front of a train.

We have handled many train cases involving bad curves coming into the crossing where the train did not blow its horn and did not try to stop when it saw the car come onto the tracks.

The law in Alabama is that we must stop, look, and listen. But if you do that and you don't see or hear the train, and then pull forward and the train comes around the corner/curve, you can have that train on you before you know it. A good rule of thumb is for every mile per hour, it is 1.5 feet per second. So a train going a normal 40 MPH is covering 60 feet per second. Experts who we have hired talk about reaction time - the time it takes once you see or hear a train and the time to react. Maybe a second or two or three. Then the reaction time of the car when you hit the gas or reverse or whatever you do to try to get out of the way. All of those seconds are chewing up 60 feet each.

Train litigation can be very complicated with federal law preempting state law and often requires multiple experts but there are valid cases out there against negligent train companies - even when you are on the tracks when you get hit by the train.

If you have any questions about a potential train case, please contact an attorney experienced in litigating with the train companies so that you can get a good evaluation of your legal options.

As you know, we highly recommend Ken Shigley's blog - one reason is the depth and variety of posts he has including a nice variety of videos. One new video he has involves a YouTube video of a bobtail tractor (just the truck part without the trailer) skidding on wet pavement. Its interesting, particularly if you are looking at a truck case. Here is the video:

Many car wreck cases can be settled without having to file a lawsuit. Insurance companies have whole divisions of workers set up to process and resolve car wreck claims. Though you are trying to get as much money as you can for your claim, and they are trying to pay you as little as they can, you both typically have the same goal, resolving your claim without a lawsuit. For both sides, lawsuits bring added expense, added time and added uncertainty.

An insurance company looks at three main things in deciding whether to settle a claim.

- First, was their insured at fault? Even if they decide the first one in your favor, they will then look at the second issue.

- Second,are the injuries you are claiming related to or caused by their insured?

- And finally, what is the value of those injuries?

Obviously, someone with mild back pain has a claim that is worth much less to them than someone who has suffered a broken leg or who has had to have back surgery as a result of the wreck.

If you or your lawyer are not able to get the claim resolved, then a lawsuit will have to be filed. Once this happens, a typical case in Alabama state courts is not set for trial, until at least 9 months to a year after being filed. Oftentimes, most cases will not be tried at the first setting, either due to other cases being set before them, or difficulty for both sides in having the case ready for a jury trial.

Filing the lawsuit

In order to initiate a lawsuit, a “complaint” must be filed by the plaintiff. This filing sets forth the basic facts of what happened, show the court your are suing the defendant in, sets forth the legal theories of why the defendant is liable to you, sets forth your damages (how the defendant hurt you) and asks the court for relief, in other words, what you want a judge or jury to do to help you.

Defendants have thirty days in state court and twenty days in federal court to answer the allegation. They will typically ask for and be given an extension. Shortly after all of the defendants answer, the judge will enter a scheduling order setting out deadlines for the parties meet in preparing their case for trial and setting the trial.

Discovery

Discovery is the part of litigation where the lawyer and parties set about finding out what the other side’s position and evidence in support or in defense of the lawsuit will be at trial. Discovery is made basically of both sides asking each other questions about what happened and what they expect to tell the jury. These questions can be written (Interrogatories, which each side will have to answer in writing), oral (Depositions, where each party or witness is asked questions in front of a court reporter who records everything that is said during the deposition) and Requests for Documents, which are requests that require the other side to produce documents supporting their position at trial.

Dispositive Motions

At the end of discovery, a party may file a motion with the court, asking the judge to decide certain issues. In these motions, the parties can ask the court to decide certain legal or factual issues, which they believe are not in dispute. They may even ask the court to dismiss the case or throw it out of court for lack of evidence.

Trial

While most everyone knows what trials are, few people other than lawyers have a good understanding of what goes on at a trial. Few trials have what lawyers call, “the Perry Mason” moment, where one side breaks down crying on the stand and admits it was all their fault.

Each side presents their evidence and testimony before a judge and jury. This can take several days or several weeks for long complicated trials. The judge manages the trial and makes legal ruling on the evidence and law. At the end, the jury considers the evidence and rules in favor of either the plaintiff or the defendant in the form of a judgment.

Post Trial

If either side is not happy with the trial, they have the right, within the time limits set out by court rules, the ask the judge to vacate the judgment or to appeal the judgment. The appeals are also costly and can be very time consuming. Many appeals can take from six months to a year before the appellate court rules and the case is resolved.

If you are unable to get your claim resolved without having to file a lawsuit, be patient. Your case will move forward and you'll get your day in court. It will, however, take longer than you think it should, which in and of itself explains why it is preferable when you can to settle without having to go to trial.

After most all wrecks, assuming there aren’t obvious or catastrophic injuries, most times, both parties get out of their cars, look at the damage and ask the other person if they are OK. And, most people answer “Yes, I’m fine’ without even thinking about it. It is akin to someone you see on the street asking how you are doing. Out of habit you answer, “I’m doing fine” or “I’m doing well, how are you.” You may have a whole host of issues going on, but don’t let on.

Most everyone who has been in a wreck is shaken up pretty good. They are scared and have a lot of adrenaline running through them. Even if they are in pain, most are not feeling it at that time. Oftentimes, it is not until that night or the next day that your neck or back does not start to hurt.

If you have been in a car wreck, it has been our experience that you should be checked out by a doctor immediately. Rather than diagnose yourself, or let the person who hit you diagnose whether or not you are injured, you should let a doctor do that. You should get yourself to a doctor immediately.

After seeing a doctor, you should follow his or her recommendations to the letter. That means, going to tall follow up visits, taking the recommended medications, doing any and all prescribed physical therapy.

Additionally, you should be as honest with your doctor as you can. A lot of my male clients will tell me about the pain they were in after the wreck only after much prying. But when I read the medical records, there is little mention of pain. They later tell me that they didn’t want to appear to be weak or whiners or that they’d learned to deal with pain and didn’t want to appear to be complaining too much. This only hurts their ability later on to be compensated for the pain and suffering they endured as a result of the wreck.

Some of our clients have found it helpful to keep a journal of their treatment and injuries. Understand, however, if you do this that it may be discoverable by the defendant. Therefore, we only recommend doing it if you will do it consistently, that is every day or virtually every day over the course of your treatment, and only write down things you wouldn’t later mind being read to a jury. The best way to assure that you do this is to only write down the truthful facts about what you are experiencing, not your opinions, of your experiences, your treatment, doctors or dealings with the person who hit you or the insurance adjuster. This should include your treatment, your pain, and your limitations as a result of the pain.

Continue reading " What Should I do if I’ve been injured in a Car Wreck? Part II, The Treatment. " »

Car wrecks or automobile accidents are one of those unfortunate parts of life that we all hope we’ll never experience. However, chances are that just about every Alabama driver will be in a wreck at one time or another, whether it is our fault or the fault of another. Often times, people are not significantly injured in wrecks. However, there are some wrecks that result in someone being injured.

If you were injured and the wreck was someone else’s fault, you may have a claim against that person. Every car wreck case hinges on two issues.

- The first is liability (Can you prove that the wreck was the fault of the person who hit you?)

- The second is damages. (Can you convince an insurance adjuster, or judge or jury if you can’t settle the case that the injuries and/or pain you say were caused by the person that hit you actually was?)

Most cases we see actually come down to the second question.

If you are in a wreck and have been inured, what you do immediately after the wreck and in the first few days can significantly affect your chances of recovery for the injuries you sustained in that wreck. If you are reading this after a wreck, then you have experienced this, and if you have never been in a wreck then you can only imagine what happens to your body during a wreck.

Though we will discuss in more detail what actually happens to your body during a wreck in a later post, needless to say it can be a very violent and traumatic experience. First and foremost, you should always wear your seat belt. But, even with that on you body can be thrust forward or backward suddenly, and stopped and yanked in the opposite direction just as violently and suddenly. Additionally, there are the objects within the car you can hit or be hit by, including the airbag, the steering wheel, or parts of the dashboard or door.

It is hard to imagine the force of an impact because our cars are big and heavy and we feel safe in them. Yet, even a low impact wreck can cause a significant jostling to your body, which can cause long term injury to your back, neck and other joints.

If you have been in a wreck, you should immediately contact the police to let them come and fill out a report. This will serve as documentation of the fact that the wreck actually occurred. Additionally, the officer should take down every one's information and other information, such as, weather conditions, road conditions, each person’s statement as to how the wreck occurred and list any witnesses to the wreck.

On the issue of witnesses, it is vitally important that you identify anyone who could be a potential witness and take down their contact information and try to get them to stay to speak with the police officer. Oftentimes, many witnesses will not want to get involved and will only stay around to make sure everyone is OK and then leave. Once they are gone it is you word against theirs as to how the wreck happened.

Whether you are sure you have been injured or not you should be checked out by a doctor immediately. Right after a wreck, most people’s adrenalin is pumping and it is not until hours or days later that they actually realized the extent of their injuries. A delay in treatment can cause two problems. First, and foremost, it may limit your ability to recover. Second, if you wait a few or even several days to see a doctor, you may have problems proving that you were actually injured in the wreck.

Finally, if you have been injured you will have to decide whether to hire an attorney to represent you. Your insurance policy probably requires you to notify your own insurance company that you have been in a wreck. However, you will likely be contacted shortly after the wreck by an insurance adjuster who will immediately begin processing the claim. First, you will have to decide whether to speak to the adjuster about your claim. See our post here addressing speaking to an attorney first. In doing so, they are also preparing a case against you. They are gathering information about you and the wreck, looking for inconsistencies, and anything else they can find to pay you as little as they can. Remember, no matter how nice the adjuster is, their goal is not to make sure you are taken care of. Insurance companies are for profit businesses and the less they pay you, the more money they make.

Stay tuned for future posts on what to expect in treatment of your injuries after the wreck, settlement, litigation and trial.

We are often asked by friends and potential clients whether they should consult with an attorney after a car wreck or whether they should just deal with the other person's insurance company. Rather than reinvent the wheel, we direct you to an excellent post dealing with this question by lawyers at the Houston Injury & Accident Law Blog.

Here are a few excerpts from this excellent post:

Here is the plain truth--Allstate, and the other insurance companies who send these types of letters, do not care anything at all about you or whether you receive a fair settlement.

In fact, the insurance company's own statistics prove that its costs the insurance industry an average of $9000 more per claim when the injured person has a lawyer.

The reason the insurance companies try to convince people not to hire an experienced lawyer is because they know they can settle the case more cheaply if the injured person doesn't have a lawyer.

The truth is that you should always at least consult with an attorney before settling a personal injury or wrongful death claim

If you have been injured in a car wreck, you may or may not need to hire a lawyer but it will never cost you anything to meet with us or any other reputable plaintiff's attorney to evaluate the options you have for your car wreck case.

Over the years we have handled numerous trucking cases but what is shown in this excellent video which Ken Shigley has posted about is not something we have seen in video form. It shows what happens to a vehicle that strikes a truck from the side and then what happens when the truck is equipped with safety devices to minimize the harm to the vehicle's driver. First, though, the video shows a rear impact with and without the safety devices. Take a look at the video:

This video makes it very easy to see why truck wrecks so often result in the death of the driver of the car even if the truck is not moving. Be careful out on the roads since we don't (for some reason) have the same safety devices as other countries on our trucks.

Thanks to Ken Shigley of the excellent Atlanta Injury Law Blog who alerted us to this fascinating link of a video of a truck jack-knifing, hitting a vehicle, and ending up in flames. This graphically illustrates why truck wrecks can happen so fast and be so deadly.

If you have any questions about a truck wreck, please feel free to fill out the "Contact Us" to the left and one of our attorneys will personally respond to you.