March 2012 Archives

March 28, 2012

Mills v. Fulmarque Illustrates Time Limitations in Knoxville Injury Claims

Timing is a critical component of all lawsuits. Federal and State statutes clearly and concisely designate specific time-frames for which pleadings and papers can be filed in order to be considered timely. Mills v. Fulmarque is an Tennessee personal injury case which arose when a man fell off of his chair and injured himself while in the workplace. The victim, Calvin Mills, then sued his employer as well as the seller of the faulty chair. Two years later, there was an attempt by one of the co-defendants to add the manufacturer to the litigation alleging comparative fault. The problem in the litigation arose because the statute of limitations had run and no other parties could be added to the litigation, thus leaving an at-fault party free from answering for their negligence.
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The court in this case finally clarifies any possible ambiguity in Tennessee statute by holding that where a state statute states, "a cause of action for injuries to the person must commence within one (1) year after the cause of action," additional parties cannot be added after the one year has run from the time of the original injury. Tenn. Code Ann. §28-3-104(a)(1)(2000). The court interpreted statutes to show that any statute of limitation extensions applied to the naming of new parties. This holding prevented Mills from seeking recovery from the manufacturer of the faulty office equipment. By failing to identify all potentially at- fault parties, the attorney denied Mills his opportunity to recover the injuries he sustained due to the negligence of others.

It is extremely important when involved in a lawsuit to have a Knoxville injury attorney who is well versed in the law and can file the appropriate filings within the allotted time. It is important to get it right the first time because if you do not, you can be limited in future recovery. In Mills, the attorneys did not exhaust their resources in investigating possible parties to their lawsuit and as a result, their client was not able to receive the justice he deserved. Had there been more time, the injured worker would have been able to seek remedies from all of the parties at fault. However, as in all litigation, there are strictly applied time limits for which you can file a claim. If no claim is filed, or if it is not filed against the proper parties, then you can lose your ability to sue and obtain the judgment you so rightly deserve. Lawsuits are complex and it is critical to have a well informed and meticulous advocate zealously representing your rights.

The allotting of fault and the choosing of parties is a strategic decision that is contingent on your specific state law. When determining negligence involved in an injury, you need to know how each state addresses fault and what possible defenses are available. States vary on which doctrines they follow, such as comparative negligence, contributory negligence or assumption of the risk. This is a concept that is not a central point in this case or decision, but is important for people to be aware of. This is yet another reason why you need help from a competent attorney to obtain the maximum recovery for you.

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March 20, 2012

Tennessee Trucking Accident Watch: Unfair Insurance Company Settlement Practices in Rhodes v. AIG

When you are involved in a Tennessee trucking accident it is important to have an experienced personal injury attorney to guide you in the settlement and trial process. A veteran Knoxville injury attorney can help you identify the parties that are at fault or those who are acting negligently. And most importantly can help you deal with insurance companies focused on limiting your claim and protecting their bottom line.
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Rhodes v. AIG is a case that illustrates the deceptive practices of insurance companies. The issue addressed here is how to manage damages where the defendant insurance company is engaged in willful and knowing unfair settlement practices.

Rhodes was the driver of a passenger vehicle when the defendant Carl Zalewski, who was negligently driving an eighteen wheel truck, hit plaintiff in the rear of her car. While Zalewski was driving this truck, he was acting within his job duties as a driver for Driver Logistic Services (DLS). DLS had their primary insurance with Zurich and their excess policy with National Union Fire Insurance Company ("National Union"). Their coverage was $2 million and $50 million respectively.

Excess insurance coverage is used by large companies to shield themselves from the risks and liabilities of these highly dangerous accidents involving trucks.

Upon the impact to the plaintiff's vehicle, Rhodes suffered a fractured spine leading her to become paraplegic. Plaintiff spent several months in the hospital after spinal fusion surgery. She also suffered from several other health issues because of this injury to her spine.

Through this case it is seen how tragic the injuries can be in trucking accident cases. This plaintiff, who was not at fault, will spend the rest of her life in a wheelchair. Also, her family suffered and will continue to suffer greatly because of the injuries Rhodes sustained.

The court in this case was charged with interpreting their state statute in determining how to establish a punitive damages award in the instance where one party fails to promptly, fairly and equitably negotiate settlement with the plaintiff. The Georgia Statute does not require insurance companies to settle with plaintiffs, but what is required is that the insurance companies act promptly and reasonably when the negotiations are taking place.

In order to find the defendant's guilty of this, the court said that the plaintiff had to prove that the breaching party willfully and knowingly participated in these unfair settlement practices. Plaintiff alleges that both of the insurance companies involved were participating in this behavior, which was therefore a violation of the statute at issue.

Five months after the plaintiff filed a lawsuit against the two insurance companies, plaintiff settled with National Union, the excess insurance carrier, through their claims administrators at AIG.

Although the plaintiff settled with one of the parties, the case continued to the superior court where the court heard the case. They found that the primary insurance company did not violate the statute because it did not infringe on the integrity of the settlement process. The court went on to explain that the issue of whether National Union or their claim administrators at AIG violated the statute was irrelevant because even if the plaintiff proved that those parties were engaging in this behavior, she would be barred from collecting damages from them two times.

What the court did explain was that the state statute that is controlling in deciding punitive damages associated with unfair settlement practices, awards damages where the plaintiff is able to prove that there is a link between their injuries and the unfair practices she is contending. If the plaintiff is able to prove this, the court held that the statute indicates the plaintiff's award for punitive damages is two times the award plaintiff received in the original suit.

The application of the law to the facts in this case would have led the plaintiff to receive an exorbitant amount of money. Although the court was very sympathetic to plaintiff's injuries, they do contend that they do not necessarily agree with doubling the original damages award as punishment for unfair settlement practices.

Rhodes is a case that warns the legislatures to make sure that the statutes that are used in determining damages, provide for an equitable award.

Had the attorney in this case warned her client not to settle, the client would have received an additional $22 million dollars.

You need the right attorney to help you navigate through all the law to get you the award you are entitled to.

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March 9, 2012

In Knoxville Motorcycle Accident Liability, Helmets Not an Issue

A bill that would have eliminated the requirement for motorcycle riders to wear helmets in Tennessee has been shelved this legislative session.

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Those against the bill say wearing a helmet dramatically curbs the risk of serious injury in the event of a Knoxville motorcycle accident. Proponents of the bill, meanwhile, believe that the decision about whether to wear a helmet should be a personal one, not dictated by politicians.


Knoxville personal injury attorneys
know this much: Whether the motorcycle is wearing a helmet holds no bearing on the liability of the other party in the event of a crash. What that means is that if you are involved in a crash, regardless of whether you are wearing a helmet, you can still move for legal action against the at-fault driver of the other vehicle. An experienced attorney can help you weigh all the options.

Still, the helmet issue was one that both sides were quite passionate about.

The Motorcyclist Liberty Restoration Act would have ended the requirement for riders over the age of 21 to wear a helmet in the state of Tennessee.

On the one hand, you had Libertarians, who viewed the issue as one of civil freedoms.

Rep. Glen Casada, R-Williamson County, was one of the bill's co-sponsors. He was quoted as saying that government should not serve as mother and father to its citizens. The mandate that all motorcyclists wear helmets was taking things one step too far.

In repealing the law, supporters said it would boost the state's tourism numbers, as more riders would begin flocking to the state.

On the other side, you have safety advocates, who said that helmet laws helped taxpayers avoid millions of dollars in expenses when riders suffered serious and long-lasting injuries. One study analyzed helmet use in states that had repealed their helmet requirement laws. They found that helmet use did indeed decline, and the number of motorcycle fatalities rose by some 30 percent.

Dr. Blaine Enderson of the University of Tennessee Medical Center, recently wrote an editorial that appeared in The Tennessean. He said that while he supported personal freedom of choice, motorcyclists don't live in a bubble, and the choice of whether to wear a helmet is one that could affect their family, their employer and the community at-large.

A spokeswoman for the Tennessee Nurses Association was quoted by the local press as saying the issue is no different than laws that require vehicle occupants to wear seat belts.

Using this comparison, our Tennessee injury attorneys would note that just because a person isn't wearing a seat belt at the time of a crash, it doesn't release the other at-fault driver from being held legally accountable. It's the same with motorcycle riders.

The truth of the matter is, the majority of motorcycle accidents are caused by drivers who either aren't paying attention or aren't being respectful of these two-wheeled vehicles sharing the roadway. In these cases, it's important to have an experienced attorney who will fight to win you the compensation you deserve.

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March 6, 2012

Tennessee Injury Watch: Baker v. St. Paul Says You Cannot Double Dip

The law governing work-related injuries is very complicated and can be confusing. It is challenging to understand what to apply for and with whom. When you are injured and need medical attention, navigating through all of the rules can be disheartening. If you are confused about the benefits you are entitled to, you can very easily make a mistake that can leave you without the help you need. A Knoxville injury attorney can ensure your rights are protected in the wake of an accident.
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The First Circuit Court of Appeals decided a case where there was confusion about whether an injured worker could collect from both Worker's Compensation and their employer's insurance company. In this case it was held that a Massachusetts person could not recover for work related injuries under both Worker's Compensation and an employer's uninsured/ under-insured motorist (UIM) insurance coverage. However, the court created an exception for when the employer "explicitly purchased" the UIM coverage with the intention of protecting their employees. Baker v. St. Paul Travelers Ins. Co.

Essentially, the court said that UIM coverage in the case of a work-related injury is dependent on the employer's intent when purchasing the insurance coverage. If the employer's reason for purchasing the UIM coverage was to protect their employee in the case of injury during work, then the employee can recover from both Worker's Compensation and the employers UIM insurance carrier. However, if the employer did not intend for their employees to be covered or even if the employer did not think about coverage for their employees then the employee cannot recover benefits from both their state Worker's Compensation and their employers UIM insurance carrier. There is only a tiny distinction between instances where you can collect from both and instances where you can not. While this particular court ruling does not apply in Tennessee, it illustrates the complexities involved in seeking justice after a serious or fatal accident.

The decision in Baker arose in 2002 when Heidi Baker, who was employed by Safety Source Northeast (Safety), was severely injured in an automobile accident that caused by a third party while she was doing her job. Baker first applied for and collected Workman's Compensation benefits. These benefits were not enough to cover her bills so she later applied for benefits under the UIM provision of the commercial automobile insurance policy her employer had with St. Paul Travelers Insurance Company (St. Paul). Unfortunately, Baker was not aware of the benefits she was entitled to and she was left without the recovery she needed to pay for the cost and expenses incurred because of her injury.

MA law says that a person cannot file claims under both Worker's Compensation and an employer's UIM insurance coverage except when an employer "explicitly purchased" the UIM coverage to protecting their employees. In this case, the President of Safety testified that was is solely in charge of purchasing commercial automobile insurance for the company, yet he was "unaware" of the UIM coverage under the Safety policy.

Through this testimony the court determined that the employer did not have the intent to protect their employees with this insurance, and therefore Baker was left without this assistance. The insurance company won this case and it was decided that the victim could not receive benefits from both Worker's Compensation and her employer's insurance policy.

In cases of work-related injuries the guidance of an experienced and trustworthy attorney is invaluable. Medical costs are high and the cost of a work-related injury can seriously impact your life. The application process and receipt of benefits can be confusing, and it can be difficult to determine what assistance you are entitled to. Especially when driving is a job duty, employees need to be aware of their employer's insurance coverage and how it applies to them. Additionally, there are even some states, such as MS, that have laws that limit your recovery. If you are ever involved in a job related injury you must know your state Workman's Compensation law and the rules governing your insurance policy before you enter a claim. When leaving these concerns to a dedicated attorney, you can concentrate on getting better.

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