Injured... We can help!
Injured... We can help!
Injured... We can help!
Injured... We can help!
Injured... We can help!
Injured... We can help!

We are often asked whether a parent or an owner of a vehicle is responsible for the conduct of a child or another person using a vehicle with permission. In most instances, neither a parent of a young driver, nor the owner of the vehicle, are liable for injuries caused by another person using their vehicle. Although a person or a business can be responsible for the actions of their agents or employees, simply being the parent of a driver or the owner of a vehicle does not subject a person to claims for injuries or other damages.

In spite of this general rule, a parent of a driver or an owner of a vehicle can be held liable for injuries, if there is evidence thNegligent Entrustmentat they negligently entrusted the vehicle to the driver. Under Alabama law, the essential elements of an action for negligent entrustment are (1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) proximate cause; and (5) damages. Edwards v. Valentine, 926 So. 2d. 315 (Ala. 2005).

Entrustment of a vehicle can include expressly loaning a vehicle on a specific occasion, continuously allowing consent to use a vehicle, or merely leaving a vehicle available for use. In the event where a vehicle is left for use, a parent or an owner may be responsible even when he or she did not provide permission to use the vehicle when there is evidence that the person who was driving the vehicle was likely to use it without authorization and that the parent or owner failed to take reasonable precautions to prevent such unauthorized use. Continue reading

          Wrongful DeathIn the very unfortunate situation where a person is killed by the wrongful act of another person or a corporation in Alabama, the heirs may make claims under the Alabama Wrongful Death Act. Claims for wrongful death can be based on negligence or statutes such as the Alabama Extended Manufacturers Liability Doctrine (products liability) and the Alabama Medical Liability Act (medical malpractice). A complaint for wrongful death must be filed within two years from the date of death.

          The Wrongful Death Act (§ 6-5-410, Ala. Code) specifies that the personal representative has the authority to commence an action on behalf of the heirs. The personal representative (sometimes referred to as the Administrator of the estate) is typically designated in a Last Will and Testament. If there is not a will, then Alabama Code § 43-2-42 provides that the deceased person’s spouse has the first priority to be appointed as personal representative. The heirs will be next in line for priority to serve as personal representative. The spouse or the heirs waive their priority to serve as personal representative if they do not file a petition within forty days of the decedent’s death. In counties with over 400,000 residents, the county administrator can be appointed if the spouse and heirs decline appointment or are unable to serve. Otherwise, any person may petition to be the personal representative. All the heirs of the decedent must receive notice of the petition for appointment of a personal representative and will have the right to object to a petition if they so choose.

           In the case of a death of a minor child, Alabama Code § 6-5-390 provides that the parents of the child shall have an equal right to file a wrongful death action so long as they are lawfully living together as husband and wife. In the event the parents are not married or divorced, the person with legal custody of the minor child at the time of death shall have the right to commence a wrongful death action. If the father and mother are both deceased or if they do not file an action within six months from the death of the minor, then any properly appointed personal representative of the minor may file the claim. Continue reading

SubrogationSubrogation is the right of a third party – usually a health, disability or automobile insurance company – to recover money paid to or on behalf of an injured person from any amount the injured person receives from a responsible party.  Subrogation is based on equitable principles and considerations that an injured person should not recover twice for a single injury and that the insurer should be reimbursed for payments it made that, in fairness, should be made by the wrongdoer.  Most insurance contracts include claims for reimbursement based on the contract and require that the injured person cooperate with the insurer, furnish information concerning the personal injury claim, and most importantly notify the insurer before filing suit or settling any claim.

If you suffer a personal injury and receive medical treatment that is paid for by your health insurance company they will often send a notice of subrogation.  This notice will request information about the incident and ask that you identify any person or insurance company that may be responsible for your injuries.   The initial notice of subrogation is often followed by a notice indicating the amount paid by the insurer and a specific claim for that amount.  This notice is commonly provided to the insurance company for the responsible party.

When it comes time to actually reimburse your health insurance provider for the medical bills they have paid, your attorney may be able to negotiate a reduced repayment amount.  Alabama state courts have applied equitable principles when interpreting contractual subrogation provisions.  The “made whole” doctrine and the “common fund” doctrine are the most prevalent.  When the “made whole” doctrine is applicable, insurers are not allowed to pursue their subrogation rights unless and until the injured party is “made whole” or fully compensated for all of his or her losses.  Where the amount recovered by the injured party is less than his or her loss (as is common when the responsible party is underinsured or uninsured) then the insured has not been made whole and the insurer may not pursue its subrogation claim.  Regrettably, recent decisions of our courts have allowed insurers to contractually avoid the application of the made whole doctrine in many cases. Continue reading

CodeThe state can suspend a driver’s license or an owner’s vehicle registration until the proper forms are submitted and fees paid when an uninsured vehicle is involved in a collision or when a driver is pulled over and fails to provide proof of insurance.  The Code of Alabama has two different chapters governing mandatory car insurance and the penalties for not having coverage. They are Ala. Code §32-7-1 et seq. Motor Vehicle Safety-Responsibility Act and Ala. Code §32-7A-l et seq. Mandatory Automobile Liability Insurance.

§32-7-5 of the Motor Vehicle Safety-Responsibility Act requires that any driver involved in a wreck in Alabama, where any person is injured or killed or where more than $250.00 in property damage is sustained, must file a written report with the Department of Public Safety within 30 days of the date of the wreck stating, among other things, that the driver has the required minimum insurance coverage. This is the SR-13 form given to drivers after collisions. The drivers must submit the form whether or not the wreck is their fault.

Under §32-7-6, if one or more of the drivers in a motor vehicle wreck is reported as being uninsured, that driver has 20 days after the submission of an accident report to provide proof that the driver either (1) actually has insurance, (2) has been released from liability, (3) has been finally adjudicated as being not liable, or (4) has agreed to pay installments for any injuries or damages for which the driver is liable. If 60 days passes from the submission of an accident report and an uninsured driver has not provided any of the above information, the Department of Transportation has the power to suspend both the license of the driver and the vehicle registration of any vehicle owned by the uninsured vehicle’s owner.

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photo 3Although many think the dramatic parts of a trial – the opening and closing arguments — are the most crucial moments, the actual evidence presented at trial is what truly determines the verdict.  After all, a jury’s verdict must be based on the evidence.  But what is “evidence”?  A lawyer’s argument or interpretation of facts is not evidence in a personal injury case.  Evidence can be testimony given by witnesses, as well as tangible items and documents that are admitted as exhibits.  Each state has its own rules of evidence that a judge must apply in determining whether evidence is admissible or not admissible.   In many situations, evidence that would seem quite relevant to the lawsuit is frequently excluded at trial.  It may be a surprise to find out that these five things are usually inadmissible in a personal injury case in Alabama.

Alabama Uniform Traffic Crash Reports – Alabama Courts have said that automobile accident reports are inadmissible at trial.  36789760However, judges have disagreed on the reason why. One Alabama statute states, “No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident…” (Ala. Code § 32-10-11). In Mainor v. Hayneville Telephone Co., 715 So. 2d 800 (Ala. Civ. App. 1997), the Alabama Civil Court of Appeals decided that the statute required that automobile accident reports be excluded at trial.  However, other judges have prevented admission of automobile accident reports on the basis of the “hearsay rule” (Alabama Rule of Evidence 802).  In limited situations, an automobile accident report can be used at trial to refresh a police officer’s memory while he is testifying or to impeach a witness who has made a prior inconsistent statement.  Yet in the vast majority of cases, the jury will not be allowed to view the accident report or learn all the information contained in the report.

The Defendant’s Available Liability Insurance – In personal injury cases, the main question is whether someone is liable to another for money damages.  For a party to be found liable, they must be proved to have been negligent.  In Alabama, automobile insurance is mandatory.  Therefore, in a lawsuit seeking damages for personal injury from a car wreck, the insurance company will provide legal representation and will pay any judgment – up to the limit of the policy – entered against the person, if he or she is found to be negligent.  However, in almost all situations, the jury cannot be told that a defendant has liability insurance.  Alabama Rule of Evidence 411 states, “Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.”   The justification for this rule is straightforward.  A jury may be tempted to award damages or increase its award of damages because the insurance company is paying the judgment.  Our legal system wants the jury to determine the outcome of a personal injury case on the facts, not whether the insurance company will pay the judgment.

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caution-wet-floor-sign-1-1006453-sThere are many types claims made as a result of injuries on another person’s property under Alabama’s common law. These claims are commonly referred to as premises liability cases or “slip and fall,” or “trip and fall” cases.  They can occur inside or outside of a building, in parking lots, sidewalks, entry ways, yards, or many other places.  Typically, these claims involve injuries caused by debris or liquids on floors, falling merchandise, uneven floors or defects in floors, poor lighting, and other hazardous conditions.  Many of these conditions can be traced to violations of applicable building or life safety codes.

Premises Liability cases can be some of the most difficult cases to prove under Alabama law.   There are many factors that have to be considered to determine whether you have a valid claim against a property owner or business.   The business or property owner is not responsible for an injury just because it occurred on their property.  In order to recover, the injured person must prove that the business or property owner did something or failed to take some action that caused the injury.

The majority of premises liability cases occur at a business or in a common area outside of a business. The Alabama Supreme Court defines the duty a business owner owes to customers (or “business invitees”) as follows:

 “The owner of a premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided.”

Kmart Corp. v. Basset, 769 So.2d 282 (Ala.2000).  However, “the mere fact that a business invitee is injured does not create a presumption of negligence on the part of a premises owner.”  Hose v. Winn-Dixie Montgomery, Inc., 658 So.2d 403, 404 (Ala.1995).  Rather, “a premises owner is liable in negligence only if it fails to use reasonable care in maintaining its premises in a reasonably safe manner.”

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7493614_sIf you are injured in an accident such as an automobile wreck and are treated at a local hospital emergency room, it is likely that you may get a notice of a “hospital lien” from the hospital or a company representing the hospital.   Pursuant to Alabama Code Section 35-11-370, a hospital shall have a lien for the reasonable charges for hospital care of an injured person who entered the hospital within a week of receiving such injuries.  The lien does not attach to a person’s real property (land) or personal property (belongings).  Instead, a hospital lien attaches to any action, claim, settlement or judgment against any person or entity whose acts or omissions caused the injuries requiring hospital care.

Although the hospital or its representative will often file the lien in the probate court in the county where the accident occurred, the Alabama Supreme Court has held that a lien does not have to be filed in probate court to be valid.  In Guin v Caraway Methodist Medical Center, the court concluded that a hospital lien arises “automatically” in the event someone suffers injuries and receives treatment at a hospital when there is another person or entity responsible.   In most instances, a personal injury attorney or an insurance adjuster that handles claims will determine whether a lien will impact a claim.

Typically, a hospital will assert a lien in any situation where a person is transported to the hospital emergency room by an emergency medical service such as ambulance or helicopter.   This type of lien is only available to hospitals.  Doctors, chiropractors or other healthcare providers cannot assert a lien against a settlement or judgment unless the injured party executes a document giving them rights to the proceeds.

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1372030_untitled_1We all love animals here at Siniard, Timberlake & League, and for some of us, we feel like our dogs are almost members of the family. Unfortunately, however, sometimes man’s best friend can be an enemy in disguise, and Alabama law places important responsibilities upon dog owners if their pets cause injury to others. Dog owners can be held responsible for injuries under Alabama’s common law if their pet has displayed prior dangerous propensities, if their dog belongs to an “inherently vicious or dangerous breed,” or pursuant to Alabama statutory law if the injury was on the dog owner’s property.

Traditionally, people often say that there is a “one bite rule,” meaning that if a dog has never bitten anyone before, then the owner is not responsible for the “first bite.” This is not actually the law. In reality, Alabama’s common law states that the “owner or keeper” of a dog is responsible for any injuries caused by the dog if they knew that the animal had previously “displayed vicious or dangerous propensities.” This means that the dog’s owner, or a person who does not own the dog but who is responsible for it (i.e., it’s “keeper”), is legally responsible for the dog’s behavior if the dog has previously acted in such a way that shows it poses a danger to humans. This kind of behavior is not limited to just a previous “bite,” but can include other demonstrations of vicious behavior, such as trying to bite or attack a person. Dangerous behavior is also not limited to “attacks” by the dog, but can also include what the courts have called “mischievous” behavior, where the dog is playing, but in a way that is dangerous to humans.

The Supreme Court of Alabama has also held that, even if an individual dog has not demonstrated viciousness in the past, the dog’s owner is presumed to know of any particular vicious or dangerous characteristics of the dog’s breed, and will be held accountable for any injuries if a dog belongs to a “vicious or dangerous” breed. In Humphries v. Rice, the victim was attacked by the defendant’s pit bull dog, which had never attacked a person before, but which had attacked and killed other dogs and which could hang by its jaws from a tire swing for five minutes. After examining the history and physical characteristics of pit bulls as a breed, the Court found that it was foreseeable that an unprovoked attack by a pit bull could occur, and held that, in Alabama, “an owner or keeper of an animal will be charged with knowledge of the propensities of the breed of animal he or she owns.”

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One summer Saturday night in Huntsville, Alabama, Bob and Ruth climb in Bobs’ car for a friendly drive to the movies.  Unfortunately, Ruth’s life soon changed forever when Bob runs a red light and his car is hit broadside by a pickup truck. Ruth suffers severe injuries from the automobile wreck.  She endures tremendous pain and suffering and mental anguish.  Her injuries are permanent.

To add insult to injury, when Ruth makes a claim against Bob’s automobile insurance company for the injuries she sustained in the wreck, they inform her that she is not entitled to recover under Alabama law because she was a “guest” in Bob’s vehicle.

The Alabama Guest Statute  prohibits a “guest” from bringing an action against a driver unless the driver is found to have willfully or recklessly operated a motor vehicle to the detriment of the “guest.”  The guest statute applies in situations where the injured person was riding as “a guest while being transported without payment.”  “Payment” does not necessarily mean cash for transportation as one would pay for a taxi ride.  “Payment” could be in the form of some material and tangible benefit to the driver from the transportation or the transportation must be of mutual benefit to both parties.

Although the Guest Statute typically prevents any claim against the driver of a motor vehicle for injuries sustained by a guest, damages may be recovered by a guest if the injuries are caused by the willful or reckless misconduct of the driver.  Typically, we are able to prove willful or reckless misconduct when there is evidence that the driver was operating his vehicle at an unsafe speed, was driving erratically, driving under the influence or was distracted while using a cell phone or texting.

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If you are in a wreck in Alabama, there is no guarantee that the responsible party will have enough liability coverage to compensate you for your injuries. Under Alabama’s Mandatory Liability Insurance Act (Alabama Code Section 32-7-6), the minimum coverage is $25,000 for death or personal injury and $25,000 for property damage. If you are rear ended by a vehicle traveling at a high rate of speed and suffer severe personal injury, how can you protect yourself? How do you make sure you can pay for your medical care, personal needs and lost wages? What happens when a driver that causes a wreck does not have adequate automobile insurance coverage? What if the other driver has no liability insurance?

We recently prosecuted a horrific case involving personal injuries and multiple wrongful deaths from an automobile accident. Unfortunately, the responsible driver only carried the minimum limits of coverage. This is a problem that we see too often. Fortunately we were able to make claims with our client’s insurance carriers for Underinsured/Uninsured Motorist Coverage and Medical Payments Coverage.

Underinsured Motorist coverage is insurance you can purchase from your agent to protect you and persons riding in your vehicle in the event you are injured by a negligent driver who does not have enough coverage to compensate you for your injuries. This coverage is so important that Alabama law requires insurance agents to offer it to customers. This coverage can be waived, but it is not a good idea to decline this coverage. In fact, we recommend that you increase this coverage to the maximum that you can afford. Underinsured Motorist Coverage will pay for personal injury and lost wages if the responsible driver does not have enough coverage. Uninsured Motorist Coverage works in a similar manner and will come into play when the other party does not have any liability insurance.

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