Raleigh Personal Injury Lawyer

Policyholders Win Flood v. Wind Issue

Brent Adams — Fri, 09 Oct 2009 00:06:12 GMT

Insurance companies have long sought to avoid liability for hurricane damage to property they insure by claiming that a hurricane loss was caused by flood rather than wind.

It did not matter whether the initial loss was clearly caused by wind. If, after that initial wind loss, a flood occurred insurance companies could many times escape their liability by arguing that because the policy holder could not prove whether damage was caused exclusively wind that the policyholder did not prove its case.

The Supreme Court of Mississippi in an October 8, 2009 opinion made it much harder for insurance companies to avoid such claims in the state of Mississippi.

The case, Corban v. USAA held in essence that if an insurer sells a homeowners policy labeled "all risk", it cannot apply ambiguous or contradictory exclusions to deny a claim.

In addition, it held that :"If the property suffered damage from wind, and separately was damaged by flood, the insured is entitled to be compensated for those
losses caused by wind. Any loss caused by '[flood] damage' is excluded. If the property
first suffers damage from wind, resulting in a loss, whether additional '[flood] damage'
occurs is of no consequence, as the insured has suffered a compensable wind-damage loss.
Conversely, if the property first suffers damage from flood, resulting in a loss, and then wind
damage occurs, the insured can only recover for losses attributable to wind."

The defendant insurance company had argued that the wind and flooding losses were indivisible and that because flood damage was excluded, there could be no recovery. The court rejected this argument.

Significantly, the court also ruled that after the policyholders prove that their property was damaged, the burden shifted to the defendant insurance company : "to prove by a
preponderance of the evidence, that the causes of the losses are excluded by the policy, in
this case, '[flood] damage.'”

Read commentary on the case by the lawyers who represented the policyholders.

Originally posted at InjuryBoard by Brent Adams

Raleigh N. C. Six Year Old Killed At School Bus Stop

Brent Adams — Sat, 22 Aug 2009 21:44:11 GMT

It is back to school time in North Carolina and unfortunately, these first few days of school have left one child fatally injured as she exited her bus.

A six year old was hit and killed at her bus stop in Raleigh this week.

The girl, Ashley E. Ramos Hernandez was getting home from school at Green Elementary School. As she was exiting the bus, Geraldine Baron Deitz hit the child with her SUV.

Geraldine Baron Deitz, 83, was driving behind the bus. Although the bus's warning signals and lights were in fact on, she failed to stop. Eyewitness reports state that she seemed to have slowed down but did not come to a full stop before she passed the bus. At that point, she hit the child.

Tragically, Ashley died from a result of her injuries.

A driver behind Deitz's SUV did stop and got out to help Ashley until the paramedics arrived on the scene. The driver, Thomas Ernest Waters, provided eyewitness testimony to the police about what occurred.

As children head back to school, this is a tragic reminder of how easily a child may be hurt, or even killed when bus signals are ignored.

Should Ashley's family seek out legal advice and file personal injury charges against Deitz, the fact that Deitz failed to stop even with the warning signals is significant. Individuals who are driving alongside a bus must obey these signals.

It is also North Carolina law that drivers remain at least 100 feet behind the bus to allow enough time to stop quickly.

There are stiff criminal penalties for failing to stop for a stopped school bus. More importantly, Ashley's family has effective legal remedies against the negligent driver. Hopefully the Deitz vehicle is insured for more than the minimum $ 30,000 liability insurance coverage that North Carolina law requires.

Personal injury lawyers can help drivers, pedestrians and others who become the victim in situations like this. If you or someone you know has been in a situation where you were injured because someone else failed to abide by laws, contact a personal injury attorney as soon as possible.

Originally posted at InjuryBoard by Brent Adams

Watch Out For Fly by Night Jobs

Brent Adams — Thu, 09 Jul 2009 22:50:52 GMT

As the economy has gotten worse people who are in need of income will do just about anything to get money to feed and take care of their family. In many cases this will lead to an under-the-table job where the worker will be paid in cash and no one will know that they were working. This can be tempting for someone who is desperate and willing to do almost anything. However, there is quite a bit of risk that is involved with this type of work.

In many cases, the jobs are quick construction jobs in which safety is not a primary concern. Many times there will be no benefits offered, and the person or company that hired the under-the-table worker will not have workers compensation insurance or will claim that the worker is not covered because the employer will claim that the worker is technically not an employee.

You should not work under the conditions imposed by these under the table jobs. It is not worth the risk.

If you have been injured while working in an under-the table job situation and if you are having trouble collecting workers compensation benefits, you should contact an experienced workers compensation lawyer immediately.

Originally posted at InjuryBoard by Brent Adams

Experts Descend Upon ConAgra Plant in Garner, NC

Brent Adams — Wed, 10 Jun 2009 17:23:37 GMT

Industrial accidents are tragic. They are usually unnecessary and preventable. These tragedies are usually caused by defective products or negligence. They occur usually because the employers involved, and independent third party contractors and suppliers failed to take basic safety precautions to protect workers.

The most recent tragedy occurred yesterday in Garner, North Carolina when an explosion at the ConAgra Plant blew open the plant, killed at least 3 workers and sent 4 people to the Burn Center at Chapel Hill, North Carolina and hospitalized at least 38 others.

Experts from around the country have descended upon the little North Carolina town of Garner, North Carolina to investigate what happened.

Governmental agencies such as the US Chemical Safety Board, the agency charged with investigating industrial accidents are on the scene.

ConAgra Foods, Inc., the owner of the plant sent a team from Omaha, Nebraska to investigate.

Undoubtedly third party contractors and suppliers and their insurance company sent teams of experts in with a view towards finding evidence to extricate them from any potential liability for the tragedy.

The unfortunate workers, and the families of the 3 workers tragically killed will most likely not have a team of experts working for them. They are too much in shock to think clearly about how to protect their interest and keep incomes coming into the household to support their families.

You can be sure however, that the experts sent in by the insurance companies that insure ConAgra and any third party suppliers or contractors will be focused solely on how to protect themselves from claims which are sure to come from the victims and their families.

Of course, the injured employees and the families of the deceased employees are entitled to immediate workers’ compensation benefits. However, workers’ compensation benefits are extremely limited. Workers’ compensation insurance does not include payment for pain and suffering, punitive damages and other damages which have certainly been suffered by the employees and their families.

In order to recover more than basic workers compensation benefits, the employees will have to show that the conduct of the employer was substantially certain to cause injury or death. This is a heavy burden for these employees.

If the families can prove that third parties (individuals employed by entities other than ConAgra Foods) were responsible for the tragedy or that products supplied by third parties caused or contributed to the tragedy, the family would be entitled to full compensation for their losses.

It appears that 3 of the ConAgra employees died in the explosion: Barbara McLean Spears 43 of Dunn; Lewis Junior Watson 33 of Clayton; and Rachel Mae Poston-Pulley 67 of Clayton

Originally posted at InjuryBoard by Brent Adams

North Carolina May Cap Workers' Compensation for Retirees

Margaret Embry — Thu, 28 May 2009 16:12:05 GMT

As of May 11, 2009, the North Carolina House Insurance Committee advanced a measure that would limit workers' compensation payments to injured workers about six years after they become eligible for Social Security. House Bill 1022, according to Insurance Journal

would curtail workers' compensation payments 300 weeks after a worker turns 65 or otherwise becomes eligible for Social Security retirement benefits, unless the worker wins an appeal before a state board.

While opponents argue that the bill would negatively impact senior citizens, supporters of the bill believe the measure would cut costs for employers and make North Carolina more competitive.

The bill has been sent to the House Judiciary Committee by the insurance panel for further review. A companion bill, Senate Bill 975, was filed on March 25, 2009 and is currently before the Senate Commerce Committee.

North Carolina is not the first state to debate this issue. The Utah Supreme Court recently declared a state law that limited workers' compensation payments for people over age 65 who can also collect Social Security retirement benefits unconstitutional.

Originally posted at InjuryBoard by Margaret Embry

North Carolina Takes Action To Reduce Teenage Deaths

Brent Adams — Sat, 18 Apr 2009 16:48:45 GMT

Over 550 teenagers were killed motor vehicle collisions in North Carolina during the past four years.

Motor vehicle collisions are the leading cause of deaths among 15 to 20 year olds.

If a teen driver has injured you, you may not be alone. In a recent operation done by the North Carolina Highway Patrol, some 8750 citations were issued to teen drives, all of which were in violation of the law. While many of these students will learn their lesson and become better drivers for them, others will not.

Many of these citations were small ones, like seat belts and speeding tickets. It is important to note, though, that most deaths caused by teen drivers are attributed to one of these two factors.

The North Carolina Highway Patrol launched Operation Drive to Live 2009, to reduce teen deaths. The effort was specifically to help reduce the number of teens killed during driving accidents. In the last four years, 554 teens were killed in car crashes. Still, this does not account for others killed due to the student's poor driving habits.

While it is important to crack down on teens to help prevent teen deaths, it is also important to provide restitution for every day drivers and passengers also killed by these accidents. Teenagers often take daring moves on the road, leaving other, unsuspecting drivers at risk.

If you have been injured in a motor vehicle collision, be careful not to make any of the common mistakes made by injured victims. To help you avoid these mistakes order a new free book for North Carolina car accident victims

North Carolina accidents can be reduced through improved education and discipline for teen drivers. While they do not cause all accidents on the roads, many lives can be saved and many injuries avoided, through improved measures.

The North Carolina Highway patrol has published safety tips for teenage drivers.

Perhaps someone you know was injured or killed due to the recklessness of a teen driver. If so, you may be able to take legal action against those responsible. Perhaps you feel that not enough is being done to promote safe teen driving. Through legal measures, people are making a difference in stopping teens and other uneducated drivers from being on the road.

Personal injury attorneys can help you with your own case.

Originally posted at InjuryBoard by Brent Adams

How Serious Is The Carpal Tunnel Syndrome Problem?

Brent Adams — Thu, 26 Feb 2009 12:52:00 GMT

In recent years, the U.S. Department of Labor has concluded that Carpal Tunnel Syndrome (CTS) is the “chief occupational hazard of the 90’s—disabling workers in epidemic proportions.

There are several statistics that provide some insight as to the devastating physical and financial affects of the Carpal Tunnel Syndrome epidemic on workers and their families.

Currently, Carpal Tunnel Syndrome affects well over and above 8 million Americans, male and female.

At this time, Carpal Tunnel Syndrome is the number one reported medical problem accounting for about 50% of all work-related injuries.

Presently, 25% of all computer operators have Carpal Tunnel Syndrome. According to these estimates, by the year 2000, 50% of the entire workforce may develop Carpal Tunnel Syndrome.

There are over 230,000 surgical procedures performed yearly on patients with Carpal Tunnel Syndrome. This makes Carpal Tunnel Syndrome surgery the second most common type of surgery.

Amazingly, only 23% of all Carpal Tunnel Syndrome patients were able to return to their previous professions following the surgery.

Up to 36% of all Carpal Tunnel Syndrome patients require extensive and unlimited medical treatment.

Women are twice as likely to develop Carpal Tunnel Syndrome as opposed to their male counterparts.

While women account for about 45% of all workers they experience nearly two-thirds of all work-related Repetitive Stress Injuries.

Originally posted at InjuryBoard by Brent Adams

Heating Oil Leak Results In $50,000 Personal Injury Settlement

Brent Adams — Wed, 25 Feb 2009 12:52:42 GMT

A Durham County furnace repair company has agreed to pay $50,000.00 to homeowners for personal injuries suffered when their home was contaminated by a heating oil leak. In addition to the $50,000.00 for personal injuries the defendant agreed to pay the lost market value of the house.

The $50,000.00 component of the settlement was because the homeowners had to smell the fumes.

The difficulty in this case from the claimant’s perspective was proving the harmful effects of bad odors. There was no documented physical impairment stemming from the exposure to the oil. The injury was the aggravation of having to breathe odors on a non-stop basis. The homeowners had the constant stench of fuel oil in their clothes.

North Carolina law imposes strict liability for oil spills. The unusual twist to this case is that it resulted in a substantial settlement for personal injuries resulting from the oil fumes in the home.

The homeowners claimed that approximately 40 gallons of heating oil leaked underneath their home in 1998 when the defendant, while working on their furnace, did not properly reattach a fuel line. The spill occurred just days after the plaintiff put the house up for sale. The plaintiffs’ claimed that because of the spill, the property was not marketable.

The homeowner sued the oil maintenance company for negligence and violation of a North Carolina statute in the North Carolina Oil Pollution and Hazardous Substances Control Act.

Under that provision of the statute any person having control over oil or other hazardous substances which enters the waters of this State in violation of the law shall be strictly liable for damages to persons or property caused by such injury.

The female claimant was particularly affected by the odors because she also suffered from inoperable brain cancer. This condition, along with her age and the fact that she was at home all the time made her particularly vulnerable to the oil smell.

Originally posted at InjuryBoard by Brent Adams

Government Pays Disability For Back Condition

Brent Adams — Mon, 23 Feb 2009 16:54:02 GMT

Disabling back conditions enable a citizen to recover disability income from the Federal Government.

Approximately 80% of all adults will have a serious back problem during their life. Fortunately, most of these back problems are not disabling. However, if the back condition is such that one can no longer work and earn a living, disability payments can be received from the Social Security Administration.

Many disabling back conditions are not apparent to the casual observer. Most people who are disabled from a back problem can move about, drive a car and live a relatively normal life. However, these people are unable to work and hold down a job.

In determining whether a person is disabled as a result of back condition the Social Security Administration takes into account the persons education, job skills, age and other vocational factors which impact upon a persons ability to work. A person who has little education or job training and who has worked all of their life in jobs which required heavy lifting and heavy use of the back and body will be determined totally disabled. The same back condition, however, in a person with more education and better job skills may not be determined to be disabling. For instance, if an individual has job skills which will allow him to work at a desk and not be required to lift heavy objects, that person will not need a good strong back to the same extent as someone without highly advanced job skills. This person could work with a “bad back” even though the same back condition would disable someone whose entire job history involved heavy lifting.

Each claimant is individually evaluated taking all relevant factors into consideration. Therefore, the issue of whether a person is disabled from a back condition is very complex. It is many times difficult to predict whether a person with a back condition will be determined to be disabled such that they would be entitled to social security disability income.

Our right as working Americans to social security disability income protection is valuable. At Brent Adams and Associates we have helped hundreds of individuals obtain full social security disability benefits as a result of back conditions. Many of these people have been repeatedly turned down for benefits before they came to us.

Originally posted at InjuryBoard by Brent Adams

Employer Fined For Cutting Off Workers’ Compensation Benefits

Brent Adams — Fri, 20 Feb 2009 15:05:00 GMT

The North Carolina Court of Appeals has upheld an Order imposing two thousand dollars ($2,000) in legal fees to an injured worker. The fee sanction was imposed because the employer arbitrarily cut off workers’ compensation benefits for the employee before a full hearing was conducted.

The employer filed a Form 24 Application to stop payment based upon the employer’s contention that the employee could do light duty work.

The facts of the case were that after his injury the employee had returned to work in a light duty position as a recreation room attendant. The claimant was terminated from this light duty position. This termination was ultimately held to be justified by the North Carolina Industrial Commission. The Industrial Commission also ultimately approved the termination of benefits.

Even though the plaintiff’s termination was justified, the employer drew an attorney fee penalty from the Industrial Commission because it terminated the worker’s benefits without permission from the Industrial Commission. The Industrial Commission held that the defendant-employer was obligated to reinstate the plaintiff’s full benefits and keep paying him after he was terminated until the Industrial Commission approved a suspension or termination after a full hearing. The Industrial Commission said that the penalty was not mooted just because the termination of benefits was eventually approved.

The defendant-employer argued to the Court of Appeals that the Industrial Commission had penalized the employer for not paying benefits which were never due. In response, the North Carolina Court of Appeals wrote: “To the contrary, the temporary total disability benefits were due pursuant to Rule 404 of the Workers’ Compensation Rules of the North Carolina Industrial Commission”. The court held that the plaintiff’s total disability payments which were previously paid in accordance with an agreement between the parties, could not be cut off without a finding that the worker’s disability no longer existed.

Under the terms of Rule 802 of the Workers’ Compensation Rule, non-compliance with a Workers’ Compensation Rule may subject the violator to sanctions including the imposition of attorney’s fees.

This Court of Appeals case, Thompson v. Triangle Communities is very important.

The employer has a right to ask the Industrial Commission to terminate benefits. However, the employer does not have a right to terminate benefits without permission from the Industrial Commission. This places an undue hardship upon the employee who is without income during the time that it takes for a hearing on the issue of whether benefits should be terminated. It usually takes many months for the Industrial Commission to set such a hearing. Even after the hearing the appeals process could take many more months or even years. If the employer terminates the employee’s benefits without having received permission from the Industrial Commission, the employee and his or her family suffers an enormous financial hardship. That is why the rule exist which forbids such termination without approval.

Originally posted at InjuryBoard by Brent Adams