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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