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

Insurance companies can be difficult to work with when it comes to personal injury claims.  In some instances, an insurance company may deny their insured was responsible for an incident and refuse to make any settlement offer to compensate an injured person for their medical bills, pain and suffering, mental anguish, and lost wages.  In other cases, an insurance company may admit their insured is responsible, but will make a settlement offer that does not fairly compensate the injured party or claim that an injury was not caused by the incident.  At this juncture, it becomes necessary to file a lawsuit to obtain a fair resolution.

A lawsuit starts with the filing of a complaint that identifies the responsible parties, describes the facts and circumstances of the incident and makes a claim for damages.  Thereafter, the discovery process allows the parties to gather information about the incident, as well as the injuries.  One of the most important discovery tools is depositions of parties and witnesses. A deposition is simply a question and answer session where a lawyer is allowed ask a witness questions to learn information about a claim. The witness must affirm that his or her answers will be truthful, and a court reporter will transcribe the testimony.  Depositions are often recorded on video so that the appearance and the demeanor of the witness is documented.video-deposition-300x206

Rule 30 of the Alabama Rules of Civil Procedure sets forth the procedure for taking depositions in Alabama State Courts. Rule 32 of the Alabama Rules of Civil Procedure governs the use of depositions in court proceedings.  Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a witness.  A deposition of a witness may be used in court instead of presenting live witness testimony when the witness is dead, is over 100 miles from the place of trial or is out of the state, or is unable to attend due to age, illness, infirmity or imprisonment.  Deposition testimony of licensed physicians or dentists can be used in court as an alternative to calling these witnesses to trial. Continue reading

In Alabama, the measure of damages for personal property is the difference between the reasonable market value of the property immediately before it was damaged and its reasonable market value immediately after it was damaged.  In cases where an automobile is damaged but is not a total loss, the cost of repair is considered when determining the difference in market value.  In addition to the cost of repair, any diminution or decrease in value of the automobile resulting from the damage will be considered. When the damage to the vehicle is merely cosmetic or the vehicle is older, there may not be any diminution in value after appropriate repairs are completed.  In cases of newer model cars with substantial damage, the claim for diminution in value can be significant.

Alabama courts have ruled that an owner of property is qualified to state his or her opinion as to value of property before and after injury. Chambers v. Burgess, 281 So.2d 643 (1972); Parker v. Muse, 250 So.2d 688 (1971).  However, in many cases, it is beneficial to use experts to assess the diminution in value to a vehicle.   Experts can be particularly helpful when assessing the impact of damages to antique, classic or exotic automobiles.    Other states utilize a statutory formula using a base loss value, damage modifiers (severe, moderate or minor) and the vehicle’s mileage to assess the diminution in value.

Alabama does not have any laws that designate the type of replacement parts that must be used when repairing a damaged vehicle.  As long as the replacement parts are similar in fit and quality as the damaged parts, used parts or aftermarket parts may be used to complete repairs. Continue reading

Most drivers are aware of the majority of rules that govern operation of motor vehicles on a public roadway.  These rules are set forth in Alabama Code § 32-5A-1 though § 32-5A-330.  Although these rules primarily concern operation of vehicles, they also contain provisions directing proper pedestrian use of roadways and intersections.

Pedestrian controlThe principle rule for pedestrians requires that they follow the traffic control devices that regulate motor vehicle traffic unless otherwise directed by a specific pedestrian control sign such as the commonly used walk/don’t walk devices.  Alabama Code § 32-5A-32 and §32-5A-210.  Whenever there are special pedestrian control signals at an intersection, pedestrians may proceed across the roadway as directed and shall have the right of way and all motor vehicles must yield to the pedestrian.   Alabama Code § 32-5A-33.

CrosswalkWhen traffic control signals are not in place or not in operation, drivers of motor vehicles must yield the right of way to a pedestrian crossing the roadway within a marked crosswalk. If a pedestrian is crossing a roadway at any point other than an intersection or a marked crosswalk, then the pedestrian shall yield to vehicles on the roadway.  If there are adjacent intersections where traffic control devices are in use, it is unlawful to cross the roadway except at a marked crosswalk.  Alabama Code § 32-5A-212.  This would be the case in the typical “jaywalking” situation where pedestrians attempt to cross a roadway in the middle of the block.  It is also against the law for pedestrians to attempt to cross an intersection diagonally.  Alabama Code § 32-5A-212.

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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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