Automobile Accidents

October 26, 2010

I Was Uninsured and Caused a Car Wreck. Now I Am Getting Sued by Other Driver’s Insurance Company. Help!

I ran a red light four months ago and hit another car. The other driver was not hurt. It cost the other driver $3200 to get his car fixed. He asked me to have my insurance company pay it and I told him I didn’t have any insurance on my car at the time. Now his insurance company is suing me. What’s up with that?

You caused a wreck and you are responsible for the harm and damages you cause. You were lucky you only caused property damage and not a personal injury, but you are responsible for reasonable cost of fixing the car and for loss of use of the car while it was being fixed.

The other driver’s insurance company paid because you did not have insurance. This insurance company now has a right to seek reimbursement from you. This is called "subrogation."

October 25, 2010

Some Lawyer Called Me About My Car Wreck

by The Law Offices of John Day, P.C.

I was in a car wreck last week. I was hurt pretty bad. I got home from the hospital last night and a lawyer called me and said that he wanted to represent me in my case. I have no idea who this guy is or how he got my name and telephone number. Nobody in my family has ever heard of him. Can he call me like this? Should I hire him? He said he could get me a lot of money.

This lawyer is a scumbag – not only should you not hire him but you should report him to the Tennessee Board of Professional Responsibility. Rule 7.3(a) of the Rules of Professional Conduct says this about soliciting a potential client by telephone: "(a) If a significant motive for the solicitation is the lawyer’s pecuniary gain, a lawyer shall not solicit professional employment by in-person, live telephone, or real-time electronic contact from a prospective client who has not initiated the contact with the lawyer and with whom the lawyer has no family or prior professional relationship." The Comment to the rule explains why is exists:

[1] There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a specifically targeted recipient subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

October 21, 2010

Can I Make the Other Driver Responsible for My Medical Bills for Life?

by The Law Offices of John Day, P.C.

I was hurt in a car wreck. My back and leg were injuried. I don’t need surgery right now but who knows what will happen 10 years from now. Can I settle my case for my medical bills, my lost wages, and my pain and suffering and an agreement that the at-fault driver will pay my future medical bills if I have any?

You can try, but in 29 years as a lawyer I have never seen the argument work. If the at-fault driver’s insurance company believes that its driver is at fault and they want to settle the case, they want to settle all personal injury-related claims at one time. (They will usually settle property damage claims seperately.) They will not agree to leave open the issue of future medical expenses.

Thus, if a doctor says you will probably need a future surgery because of the injuries you sustained in the wreck, the cost of that surgery and related damages can be part of settlement negotiations. If the doctor says that future surgery is possible, then the amount of the possible surgery cannot be included. If there is a trial, the court will allow testimony only on whether a future surgery is probable and, if a doctor says it is, then the court will allow presentation of evidence on the cost of the surgery and related damages.

October 18, 2010

I Might Need Surgery!

by The Law Offices of John Day, P.C.

I was hurt in a boating accident. It was the other guy’s fault. The doctor said that as I result of my injuries I might need knee surgery one day. Can I recover damages for the cost of that surgery?

You can recover damages for a future surgery only if a doctor says it is reasonably likely to occur. If the surgery is merely possible or might happen, the law of Tennessee does not permit you to ask a judge or jury to award damages for the cost of that surgery.

October 11, 2010

How Quickly Will My Case Settle?

by The Law Offices of John Day, P.C.

I was in a car wreck about 6 months ago. The other driver admitted fault. My medical bills are about $25,000. I have been released by my doctor. My lost wages are $2000. How quickly will my case settle?

At the outset you need to understand that your case may not settle at all. In Tennessee the insurance company does not have a duty to settle your case and in fact does not even owe you a duty to fairly evaluate your case. It can settle a case, or not settle a case, on whatever schedule it wants to put in place.

However, if the insurance company wants to settle the case it needs to have information from your lawyer. At an absolute minimum, the company needs the accident report, your medical records and bills, perhaps some of your previous medical records, proof of lost wages from your employer, and an understanding of how the injuries have impacted your life. To the extent you claim a permanent injury, future medical expenses, future loss of earning capacity, or other damages, the insurance company will need proof of that.

October 4, 2010

There Was No Guardrail and I Went Off the Mountain!

by The Law Offices of John Day, P.C.

I was driving in East Tennessee. A big truck came over the center-line into my lane and I swerved to avoid it. I lost control and went off the mountain. My friend who was in the car behind me saw the whole thing. He told me that I went through a hole in the guardrail and that the hole had been caused by another wreck nine months earlier that the State of Tennessee had never repaired. What are my rights?

First, if you can identify the trucking company and truck driver you would have a claim against them for crossing the center-line and forcing you off the road.

Second, even if you can’t identify the trucking company, you may have a uninsured motorist claim that you can assert against your own insurance company. Tennessee law permits you to make a claim on your own insurance when an unknown driver (called a "John Doe" driver) negligently causes a wreck. The fact that your friend saw the wreck is critical to being able to prove this claim.

September 29, 2010

My Car Was Hit By a Police Car!

by The Law Offices of John Day, P.C.

I was driving in Nashville and a police car ran a red light and plowed right into the side of me. I had to go to the hospital and they discovered that I broke my leg in the crash. Can I sue the police officer for causing the wreck?

Under Tennessee law, you cannot sue the police officer but you can sue the local government that employed the police officer. Therefore, if the police officer was employed by Metro Nashville, you can sue Metro Nashville.

Under Tennessee law, a governmental entity is responsible for certain negligent acts and omissions of its employees but its financial responsibility is capped at $300,000 for any one person, regardless of the seriousness of the injuries or even if the person is killed by the negligent act or omission. Damages to property are limited to $100,000.

September 28, 2010

Should I See A Doctor About My Injuries?

by The Law Offices of John Day, P.C.

I was in a car wreck yesterday. I thought I was ok but I woke up this morning and feel absolutely horrible. Should I go to the doctor, or should I just tough it out?

You should see your doctor and accurately report the nature and extent of your concerns. Call and make an appointment to get in and see the doctor as soon as you can.

Why? There are three reasons. First, your doctor may uncover a problem that is more serious than you think it is.

September 27, 2010

Can a Sibling File a Wrongful Death Lawsuit?

by The Law Offices of John Day, P.C.

My brother got killed in a car wreck. Can I file a wrongful death lawsuit for him?

You can file a wrongful death lawsuit for your brother under only limited circumstances. First, if you are named the executor of his will you have the right to file suit. Second, if the court names you the administrator of your brother’s estate you will have the right to file suit. Third, if you brother was not married, had no children, and your parents are dead you would be considered "next of kin" and you would have a right to file suit.

The right to file suit is different from the right to control the litigation. For instance, if your brother was married and his wife is competent, it is very possible that a court would let your sister-in-law control the lawsuit even if you were named executor of your brother’s estate.

September 11, 2010

What Happens If the Person That Hurt Me Dies?

by The Law Offices of John Day, P.C.

I was hurt in a head-on automobile accident. The driver that crossed the centerline and hit me died in the wreck. Do I have legal rights against him even if he is dead?

Yes. Although you can’t sue someone who is dead, you can sue his estate. If an estate is not opened for him, you (through your lawyer) can petition the court to have an estate opened so that you can sue it and collect the monies you are entitled to recover.

The fact that the person who hit you died does not relieve his insurance company of the obligation to defend the case and pay the monies to you that you are entitled to receive under the law (up to the liability insurance policy limits).