Tennessee Injury Law Center

November 5, 2010

Bankruptcy and Filing of Personal Injury or Wrongful Death Claims

I was hurt in a car wreck six months ago. I lost my job and my medical bills are enormous. I am behind on my mortgage and have been unable to make my car payments. Should I file bankruptcy, get my financial house in order, and then file a lawsuit against the trucking company? I want to be able to get rid of all this debt and be able to keep whatever money I recover in the lawsuit to meet my needs for the rest of my life.

There is a major problem with your plan. When you file for bankruptcy you are asked to answer questions under oath about your assets and liabilities. One of the questions you will be asked is whether you have any claims against another person or entity. Thus, you will have to tell the Bankruptcy Court that you have a claim pending against the driver of the other car. This is true even though you have not filed a lawsuit – you still are considered to have a claim pending that must be disclosed to the Court.

When you tell the Bankruptcy Court that you have a claim pending that fact will be taken into account in determining whether you are a candidate for bankruptcy and what amount should be paid to your creditors. As I explained in a prior post, you will also lose significant control over the progression of your case.

November 4, 2010

Can A Mother Who Did Not Pay Child Support Recover Money When Her Child Gets Killed in a Truck Accident?

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

My child was killed by a drunk driver. He was 10 years old. I want to file a lawsuit. His no-good mother, who never paid child support as ordered by the court and did not visit my son for the for the six year period after our divorce, says she is going to file a lawsuit, too. Can she do that? Does Tennessee law permit her to get money from the death of our son when she had nothing to do with our son when he was alive?

Unless you have some physical or mental health issue that you have not mentioned, you will have the right to bring the lawsuit.

Tennessee law provides that a parent who has a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period is not permitted to recover damages for the death of the child. Thus, to cut off the mother’s right to money out of any recovery you make, you will have to demonstrate that (a) there was a child support order; (b) the mother intentionally did not pay for at least 2 years; and (c) he intentionally did not visit the child.

November 4, 2010

Car Insurance In Tennessee

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

When I complained about my car insurance rates my agent said that the reason rates were so high was lawsuits. Is that right?

Well, it is true that insurance companies pay claims and, when they don’t pay the claims they should or don’t pay a fair amount lawsuits will be filed. Of course, that is the business they are in.

The facts are that Tennessee consumers and juries are very conservative and our insurance rates reflect that. While no one likes writing a check to an insurance company, Research reveals that Tennessee has the 8th lowest auto insurance rates in the nation.

November 3, 2010

Discovery of the Amount of Liability Insurance in Cases Involving Trucks

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

I was in a wreck with a tractor trailer several weeks ago. The truck driver’s insurance company called me and asked me some questions. I then asked him how much insurance his driver had, but he refused to tell me. He said that in Tennessee I could not find out how much insurance the other driver had, even if I filed a lawsuit. Is that true?

Yes. Tennessee is the only state in the nation that does not require an insurance company to disclose the amount of liability insurance in place for an accident. This is a result of a powerful lobbying effort in the Legislature, led by Tennessee Farmers Mutual Insurance Company.

Sometimes an insurance company will voluntarily disclose the amount of coverage it has. However, in the ordinary situation, the only way you can discover how much insurance the other driver has is to win a lawsuit and start the process to collect the money you are due.

November 2, 2010

What Are Motions in Limine?

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

My husband and I have a trial in Lebanon, Tennessee next month. Our lawyer said that the other side filed motions in limine. What does that mean?

"Motions in limine" are papers filed with the court asking the court to reach a pre-trial ruling on certain matters, usually evidence issues. For example, if I am representing a person who was convicted of a crime 15 years ago and now has a trial in a car wreck case I will probably file a motion in limine asking the court not to let our opponent mention the prior criminal conviction. This motion in limine gives the judge the opportunity to rule on the issue before the jury has any chance of hearing about it.

The judge does not have to reach a decision on any motion in limine before trial.

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 30, 2010

Is Testimony From A Doctor Necessary to Prove a Medical Malpractice Case?

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

I think I was injured by medical malpractice. I talked to a lawyer at church and she said that another doctor would have to testify against my doctor. Is that right?

Generally, yes. In fact, most cases require testimony from more than one expert medical witness. The expert(s) must testify (1) what level or type of care was necessary in the community given the medical issue; (b) that the appropriate level of care was not provided; and (c) that the inappropriate care caused the injury or death of the patient that would not have otherwise occurred.

This is a very complicated area of the lawyer, and I strongly suggest that you consult an experienced medical malpractice lawyer to evaluate your case.

October 29, 2010

I Was Raped. Do I Have A Right to Sue the Rapist?

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

I was raped. The police found the rapist and he is in jail. Can I sue him?

Yes. Rape is a crime that will result in prison time but it is also what is known as a "tort." There are many different types of torts, but rape would be the civil tort of battery. Battery is the unlawful touching of another person.

The problem with suing rapists is that they may not have money and therefore it will be very difficult to collect the damages you win. Hopefully, the person who did this to you will be going to prison and therefore will not be earning any real income, but that of course has the practical effect of making it difficult to collect damages from him.

October 28, 2010

Deadline for Filing Personal Injury Claim for Wreck with Truck in Tennessee

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

How much time do I have to file a personal injury claim for a wreck with a tractor-trailer ?

In the wreck took place in Tennessee you should assume you only have one year to bring a legal action against the people and companies that caused the wreck unless a competent Tennessee lawyer with knowledge of all of the circumstances tells you to the contrary.

However, it would be a mistake to wait any significant time to call a lawyer. The insurance and trucking companies often have expert witnesses and lawyers go to the scenes of serious trucking accidents. They are gathering evidence and preparing for a defense, and you need to have a lawyer start doing the same for you. Waiting even thirty days to get legal assistance may mean that valuable evidence is gone and therefore I urge you to contact a lawyer as soon as possible.

October 28, 2010

What is My DePuy ASR Hip Implant Case Worth?

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

I am one of the people who has a recalled DePuy ASR hip implant. Indeed, both of my hips have this system and both now need to be replaced. What are my rights? What is my case worth?

A total hip replacement replaces the body’s natural joint with an artificial one, usually made out of metal and plastic. A typical total hip replacement system consists of four separate components: (1) a femoral stem (2) a femoral head, (3) a liner, and (4) an acetabular shell. The surgeon hollows out a patient’s femur bone and the femoral stem is implanted. The femoral head is a metal ball that is fixed on top of the femoral stem. The femoral head forms the hip joint when it is placed inside the polyethylene liner and acetabular shell.

The DePuy ASR is a type of artificial hip replacement system. The first components of the system was approved for use by the FDA in late 2003. Other components or related systems were approved for use in later years.