Bus Accidents

December 20, 2010

I Hurt My Back. Should I Go to A Chiropractor?

I was hurt in a car accident. I received a broken arm and a back injury. The arm is now fine but my back still hurts. My friend has recommended that I go to her chiropractor for treatment. Should I?

Tough question. Have you had any treatment by an orthopedic surgeon? Have you ever seen a chiropractor before? Indeed, have you discussed this with your family doctor?

I believe in chiropractic treatment but many insurance companies and juries discount it severely in Middle Tennessee. To the extent that you want to make a claim and have the other driver’s insurance company pay for your treatment you may wish to pursue conventional medicine first and see if that helps you.

December 9, 2010

How Do You Determine Who Is At Fault in A Wreck?

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

I was in an intersection wreck. I say it was the other guy’s fault. He says it was my fault. Who decides who was at fault?

If a lawsuit is filed a jury usually decides who is at fault (unless a jury is not requested by either party to the case, in which event a judge decides). The jury will listen to your side of the story, the other driver’s side of the story, the testimony of any witness, and review any physical evidence at the scene. Sometimes expert witnesses are hired to explain what happened.

At the end of the day the jury considers all of the evidence, hears the law explained by the judge and uses common sense to decide who probably caused the wreck. Under our system of justice, the person who files a lawsuit only needs to prove that more likely than not the other driver caused the wreck. If the person who files the case is unable to prove that the other driver more likely than not caused the wreck the case will be lost.

November 12, 2010

Can I Require the Insurance Company to Pay Interest on My Personal Injury or Wrongful Death Settlement?

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

I was hurt in a car wreck six months ago. It wasn’t my fault. I have been waiting for over a year for the case to settle. I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance. Can I get the insurance company to pay interest on my settlement? It doesn’t seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law. Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest. Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.

November 1, 2010

How Many Jurors Do I Need to Win?

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

I have a personal injury case going to try in Cookeville, TN next month. How many jurors need to vote for me for me to win?

You will probably have a 12-person jury. That is the typical number of jurors in a civil jury trial in Tennessee. You and your opponent may agree to a lesser number of jurors, but you will almost certainly have 12 jurors (and one or more alternate jurors) hear the case.

All twelve jurors must vote for you for you to win the case. Some states permit a lesser number (10 of 12, 9 of 12) but in Tennessee the jury verdict must be unanimous unless the parties to the lawsuit agree on that the verdict may be something other than a unanimous verdict. For obvious reasons, the defense will rarely agree to such a proposal.

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 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.