Tennessee Injury Law Center

May 12, 2011

Can I Sue The Man That Raped Me?

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

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. Thus, a rapist can be sued and imprisoned for the same conduct.

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.

May 11, 2011

Can I Recover Lost Wages When I Failed to File My Tax Returns?

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

I haven’t filed tax returns in over filed years – I have been working and making money but I just didn’t get around to filing the returns. I was hurt in a wreck and missed four weeks of work.

You might, but if you push too hard you may find yourself in the situation where the IRS finds out that you have not filed tax returns and you may face criminal and civil penalties. Also, if the jury finds out that you have not been filing tax returns and paying taxes as you should it may hurt your case.

Defendants in cases frequently ask for income tax returns to prove loss of earnings claims, and it your income is not reported it makes it very difficult to recover it. This is often a problem in cases involving small business owners, who all too often understate their income and overstate their expenses in an effort to reduce their taxes. Doing so is not only illegal but also hurts your ability to prove your true damages in a personal injury or wrongful death case.

May 10, 2011

Lack of Sufficient Liability Insurance. Now What?

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

I was in a bad car wreck. I had $100,000 in medical bills and missed fifteen weeks of work (I make $1200 per week as a plumber). I am probably going to have to have another surgery. My doctor also says I will have arthritis in my left leg for the rest of my life. I just found out that the person who hit me only has $100,000 of liability insurance. That is not enough for what she did to me. Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased she is liable for the rest.

The problem, of course, is collecting from a person who causes harm. To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt. If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation. (There are some exceptions to this. For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.)

May 9, 2011

Will the At-Fault Driver’s Insurance Company Pay My Medical Bills for Life?

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

I was hurt in a car wreck. My left arm 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’s insurance company 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.

May 7, 2011

How Do I Know Which Personal Injury Lawyer to Hire?

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

I was involved in a wreck with a big truck. I know I need a lawyer but I don’t know what lawyer to hire. What are the factors I should consider in hiring a personal injury lawyer?

I suggest that you look our Legal Guide titled "How To Hire A Personal Injury or Wrongful Death Lawyer."

This Legal Guide is a very comprehensive list of factors that lawyers consider in determining which lawyers they should seek out when they need assistance with a complex personal injury or wrongful death case. We think that you will find this Legal Guide very helpful.

May 6, 2011

Time Period Needed to Settle a Case

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 $35,000. I have been released by my doctor. My lost wages are $12,000. 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.

May 5, 2011

What Happens if the Person Who Hurt Me Has Died?

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

I was hurt in a head-on automobile accident caused by a careless pick-up truck driver. 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 has not been 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. Any recovery would come from the liability insurance coverage that the decedent had that was applicable to the wreck and, to the extent that the damages awarded exceeded the insurance coverage, from the assets of the estate.

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).

May 4, 2011

Suing A Tennessee Lawyer for Legal Malpractice

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

I was hurt in a car wreck in Carthage, Tennessee last year. I hired a lawyer one month after the wreck. She called me last week, and told me she forgot to file my lawsuit on time. She said he filed it late and hopes that the other side won’t say anything but that if they figure it out my case will be dismissed. What do I do now?

Your lawyer did the right thing by telling you that she made an error. The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer. To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time. You will also need to prove that more likely than not you would have won the underlying case (the care wreck case). Lawyers refer to this second case as "the case within the case."

May 3, 2011

Car Wreck Lawsuit Against the State of Tennessee

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

My husband was hurt in a car wreck when a state employee driving a state vehicle ran a stop sign. I think I read somewhere that the State of Tennessee and its employees can’t be sued. hat doesn’t seem fair.

The employee cannot be sued if the injury was caused by negligence and the employee was working for the State at the time of the wreck. However, the State can be held responsible for the negligence of its employee under these circumstances, but some of the procedures are much different than those applicable to a private business.

The claim against the State is not filed in court but instead is asserted as a claim through the Tennessee Claims Commission. Proper notice of the claim must be given and, if the claim is denied (it usually is) then a formal claim must be filed. The entire process is administered through the Claims Commission. The Attorney General’s Office defends the State.

May 2, 2011

Deadline for Filing Sex Abuse Claims in Tennessee

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

I live in Tennessee. My son was sexually abused by a neighbor when he was 14. He is 18 now. Can my son sue the abuser, or has the time for taking legal action expired?

Yes. Tennessee law requires that he must file suit before his 19th birthday. The failure to file suit by his 19th birthday will result in a loss of his rights.

People sexually abused in Tennessee when they are adults have only one year from the date of the incident to file suit, but special rules apply if the person who was the abuser was a "therapist" within the meaning of T.C.A. Sec. 29-26-203. If you think you have been abused by a therapist (or anyone else for that matter), contact an experienced personal injury lawyeras soon as possible. Make sure you discuss this with your parents as soon as possible if you have not already done so.