Articles Posted in Automobile Wrecks

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.

Continue reading

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

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

Car insurance puzzle

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.

Continue reading