Recently in Personal Injury Category

The car insurance company says I am partially at fault for the car wreck. Should I still consult an attorney?

The short answer is yes, but it wasn't always this way in Tennessee. For many years Tennessee was a contributory negligence state. That meant that if an accident was even 1% your fault you could not recover any damages through the Tennessee legal system. Thankfully, in 1992 Tennessee adopted a modified comparative fault system in the landmark case of McIntyre v. Balentine. Rather than completely barring someone from recovery if they are partially at fault in car wreck in Tennessee, comparative fault allows a person to recover damages depending on their percentage of fault in the accident.

Under pure comparative fault a person can recover damages in a car accident even if they are mostly at fault. If Jack and Jill are in a car accident and Jack is 95% at fault, Jack could in theory sue Jill for damages. However, it is likely that Jill would also file a lawsuit against Jack and whatever award Jack was granted would be minimal compared to that which Jill would be granted since the accident was almost entirely Jack's fault. In the grand scheme it is really quite pointless for Jack to even file a lawsuit in this situation. For that reason Tennessee adopted the "modified" comparative fault system.

The modified comparative fault system allows a person to recover damages for an accident as long as their fault is less than that of the opposing party. So, if you are in an accident that is partially your fault you may still be able to recover damages for your medical bills, property damages, pain and suffering, etc. An injured person is not entitled to any recovery if the person was 50% or more at fault for causing the damages. Ultimately, a jury and not an insurance adjustor makes this finding.

You may be asking, "what if I'm not sure who was more at fault in my accident?" Car wrecks are determined on a factual case by case basis. Even if you think that an accident was 50% your fault, you may want to at least consult an experienced Tennessee injury attorney. In Tennessee, if a jury or judge finds that you are 49% at fault or less, you are still entitled to a fair recovery but your damages will be reduced by your percentage of fault.

It is important to understand the principal of fairness that is at the heart of comparative fault. The goal is to create a system that is much more reasonable than contributory negligence. Under comparative fault, a person is only entitled to the percentage of the damage that was not caused by their own negligence or irresponsibility. For example, if at trial it is determined that you were 20% at fault in your accident, then you are entitled to 80% of the damages you incurred as a result of the accident.

Continue reading "The car insurance company says I am partially at fault for the car wreck. Should I still consult an attorney?" »

Tennessean Report: Nashville is Too Dangerous for Pedestrians

The Tennessean reported today that Nashville is one of the most dangerous metropolitan areas for pedestrians. You can read the article here. It includes the following report:

A report released this week identified the Nashville metro area as one of the most dangerous for pedestrians. The study by Smart Growth America, an advocacy group on pedestrian and urban design issues, looked at the number of pedestrian deaths and how often people are walking in those cities.

The Nashville metro area -- with 210 pedestrian deaths between 2003 and 2012 -- ranked 15th most dangerous out of the 51 areas studied. Memphis was fifth worst, behind four metro areas in Florida.

As Nashville grows, city planners and motorist must be conscious of people on sidewalks and bicycles.

How long can I wait to bring a claim for negligent construction or design?

There are many time deadlines in the law. In Tennessee, attorneys know that the statute of limitations (a type of deadline) for injury claims is different that for contract claims. However, for claims involving negligent construction or design of an improvement to real estate, there is another important deadline called a statute of repose.

While a statute of limitations can be extended under certain circumstances, a statue of repose is more strictly enforced and creates an absolute barrier to claims brought after that date. For the construction or design of improvements to a home or other property, the legislature passed Tenn. Code Ann. § 28-3-202 which states:

All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement.

The four year statute of repose begins to run on the date of substantial completion as opposed to the date of the injury or damage. Caldwell v. PBM Properties, 310 S.W. 3d 818, 823 (Tenn. Ct. App. Sept. 29, 2009)(permission to appeal denied Mar. 15, 2010). The statue of repose is "'substantive ... and extinguish[es] both the right and remedy...'" Id. "'Thus, the effect is to prevent what might otherwise be a cause of action from ever arising... The injured party literally has no cause of action.'" Id. Moreover, "the traditional three-year statute of limitations for injury to property found at Tenn. Code Ann. § 28-3-105 (2000), cannot extend the existence of a cause of action outside the ceiling "superimposed" by Tenn. Code Ann. § 28-3-202. Id. at 823-24 (citing Watts v. Putnam County, 525 S.W. 2d 488, 491 (Tenn.1975).

Substantial completion is defined as the date upon which the improvement could be used for that which it was intended. Counts Co. v. Praters, Inc., 392 S.W.3d 80, 86 (Tenn. Ct. App. 2012). The fact that someone attempted repairs after completion of the project does not change the date of substantial completion. Id.

As a result, it is important for people with claims involving poor design, whether it be a breach of contract or an injury claim, to consult with an attorney as soon as the defect is found.

Video about workers' compensation reform


I need your help to save Workers Compensation in Tennessee

Workers' compensation protects seriously injured Tennesseans from losing everything. It is a compromise that has protected workers in our state since 1919 and it is under attack. Governor Bill Haslam has introduced legislation that will drastically reduce benefits and keep insurance companies from facing a judge in the courts by creating a purely administrative system, much like unemployment is today.

The new system will have administrative judges appointed by the Governor. The cards will be stacked against every injured worker. The costs of this system are enormous and will be paid by taxpayers. In addition, if insurance companies get out of paying for injuries, then those costs will ultimately be paid by taxpayers through Medicare, TennCare and Social Security.

But, you wonder, don't the legislators care about the rights of citizens over those of big corporations and insurance companies? No, they don't. The Chairman of the House and Human Resources Committee yesterday was filmed saying he was going to "freight-train" the bill through the legislative process, regardless of what the opposing side has to say. Here is the link to the video of his remarks. Here is an article about the open-mic gaffe. In his remarks, Chairman Eldridge was responding to a letter to the editor that you can read here. When asked to explain his remarks, the Chairman refused to talk.

I was at the subcommittee meeting yesterday. The room was packed, standing room only. The crowd overflowed down the hall. Everyone was wearing stickers urging the subcommittee to vote no. Rep. Susan Lynn, the subcommittee chair, refused to hear from injured workers and pro-employee organizations. But, she did allow the administrator of the Department of Labor and Workforce Development to testify. Talk about a one-sided debate.

Will you help me fight this? The bill is before the full Consumer and Human Resources Committee next Tuesday at 10 am at Legislative Plaza. If you will meet me at my office at 9:15 am. on Tuesday, March 12, 2013 we will gather a group at my office and walk to the meeting together (two blocks from the office). I will reimburse you if you have to pay to park. I hope you can join me because the room next week will be much larger and we will need more people to show the committee that both sides should be heard and no one needs such an important piece of legislation to be "rammed" through government.

In the meantime, before Tuesday, please contact your legislators and let them know to vote know. Here is a link for an easy way to do that. The letter is already written, just insert your email, address and zip code.

I hope to see you Tuesday to help us save workers' compensation in Tennessee.

Congratulations to Debbie

Today, January 2, 2013 ends a more than 4 year battle for my client Debbie who was seriously injured when she fell at work in October of 2008. Her employer's workers' compensation carrier initially accepted responsibility and paid for her medical care. However, when she was released to return to work, her employer terminated her and denied her any more medical treatment or other benefits. Needing help, Debbie turned to me to help her fight the insurance company.

I filed a workers' compensation case in Nashville for Debbie. The insurance company, having originally agreed that Debbie was hurt at work, denied her claim and argued that she was entitled to nothing. After at least 10 depositions, including many experts, we had a three day trial resulting in a large judgment for Debbie. The case settled a few days later to avoid an appeal resulting in a $115,000 payment.

Not every case gets this involved. But some do, and when an insurance company treats an injured person like Debbie was treated, you need an aggressive Nashville injury attorney to fight for you. Whether its a car wreck, construction injury or work comp claim, insurance companies in Tennessee often play hard-ball, trying to save money on valid claims. If you know of someone who needs help like Debbie did, have them call me or email me.

New Laws Effective January 1, 2013

With the New Year come new laws. Tennessee legislative blogger Tom Humphrey has compiled a list of laws that go into effect today, January 1, 2013. You can find the list here. The new laws effect small businesses, workers' compensation, drivers' licenses and teachers among others.

Refresher on Child Restraint Laws

As school starts again, it is a good time to review Tennessee's child restraint laws. The State of Tennessee bases its child restraint laws on a child's age, weight and height. While all children under the age of 16 must be properly restrained in a vehicle, there are different requirements for each age group.

Children under the age of one year or who weigh less than 20 lbs must be secured in a car seat in a rear facing position. It is important that both the age and the weight requirement be met before allowing the child to ride in a car seat facing forward. Children between the ages of one and three years old and weighing more than 20 lbs must be restrained in a car seat in a forward facing position. Both of these age groups must be seated in the back seat of a car if available.

Children between the ages of four and eight years of age and measuring less than four feet nine inches must be restrained in a "belt-positioning" booster seat system. If the child is over the age of eight years old but measure less than 4'9, he or she must use a seat belt restraint system meeting federal motor vehicle standards. The same standard applies to children between the ages of nine and twelve years old as well as children between the ages of thirteen and fifteen. However, it is advised that children under the age of thirteen sit in a rear seat if available.

The driver of the car is responsible for ensuring that any children in the vehicle are properly restrained. However, if the parent or legal guardian of the child is in the car but not driving, they are held responsible for properly restraining his or her child. Although violations of these requirements can result in a $50.00 fine, it is vital to adhere to these laws for the safety of any and all children passengers in a vehicle.

You can review the rules here: http://www.tn.gov/safety/newCRD.shtml

If I am hit by a car in Nashville, what do I need to know?

Motor vehicle collisions with pedestrians are very frightening and are not uncommon in middle Tennessee. In fact, Channel 4 news reported that a child was hit by a car recently as he was walking to school. Fortunately the child only suffered a broken arm; however, many Nashville pedestrians are not so lucky. According to a recent study, approximately 7,000 pedestrians die and 100,000 are injured in traffic related accidents each year.

Tennessee has strict laws relating to pedestrian safety. Under these laws, every Tennessee driver is required to (1) exercise due care to avoid colliding with any pedestrian upon any roadway, (2) to give a warning by sounding the horn when necessary and (3) to exercise proper precaution upon observing any child or other person upon a roadway. Drivers failing to meet these standards can be held responsible for any injuries and damages, including medical bills and lost wages, suffered by the pedestrian.

However, pedestrians are not off the hook. Tennessee law also imposes duties on pedestrians traveling on streets and highways. For example, pedestrians are subject to traffic regulations and are only to cross the street and walk where designated. Pedestrians failing to follow these laws may be considered equally or totally at fault for the collision thus limiting or barring their claim all together.

Continue reading "If I am hit by a car in Nashville, what do I need to know?" »

Will I have to give a deposition in my injury case?

If you are a Plaintiff in an injury case in Tennessee, your attorney may tell you that you have to give a deposition. An injury lawsuit is started with a Complaint. Once filed and served on the proper people or companies, the Defendants file an Answer to the Complaint where they admit or deny the allegations filed.

Written questions called interrogatories are usually served after the Answer is filed. Interrogatories are written questions about the injury case, the Nashville car wreck or work injury, the people involved and the claims asserted. This gives everyone a heads up on what the case is about. In Tennessee, these questions do not have to seek relevant information; they only have to seek "discoverable" information. That topic is for another post but it basically means the questions have to be tailored to find facts that may be important to some other question or topic in the case. For example, "Where do you go to church?" is an acceptable question because there may be potential jurors who go to the same church and know you.

After everyone shares their responses, some injury cases settle, some proceed. A deposition can occur at any time but it usually happens at this stage, once the other side has the medical records, bills and an idea about the claims.

A deposition is a formal question and answer session usually held at the attorney's office. It is "on the record" meaning the witness is sworn to tell the truth and a court reporter writes down every word spoken. I prepare every client for the deposition based on the case, the important facts and the problems the case may have. The best Nashville injury attorneys never prepare every case and every client the same way. Deposition preparation depends on your comfort level, who the defense attorney is, the facts of the case, among many other factors.

Many people have concerns about what will be asked, how important is this or that. The most important rule to remember in a deposition is to tell the truth.

A deposition can be a great experience, if you are prepared, because it is usually the first time, and the last time before trial, that the injured person gets to tell their story about what happened and how it has changed their life both at home and work. Proper preparation makes this easy.

Continue reading "Will I have to give a deposition in my injury case?" »

I was in a car wreck and the insurance company wants me to sign a medical release, what do I do?

If you have been injured in a car wreck, you have probably received forms from an insurance adjustor giving that at-fault driver's insurance company access to your medical records. It happens in nearly every claim. Should you sign them? Probably not; at least not until you talk to an experienced injury attorney who handles car wreck claims.

Your medical records are private and protected from disclosure by federal HIPAA laws. But, when you get hurt and seek money from an insurance company, you put your entire medical history up for review. That is okay, as long as it is controlled. Many insurance companies will send medical releases that allow them to talk to your doctor. That is called ex-parte communication and it is not allowed, unless you agree to it.

There is no testimonial privilege for doctor-patient communications in Tennessee. Givens v. Mullikin ex rel. McElwaney, 75 S.W.3d 383, 407-08 (Tenn. 2002). There is, however, an implied covenant of confidentiality between a physician and a patient arising out of the original contract of treatment for payment. Id. This implied covenant specifically precludes informal discussions with a law firm employed to defend the patient's claim: "[A] physician breaches his or her implied covenant of confidentiality by divulging medical information, without the patient's consent, through informal conversations with others." Id. However, this covenant of confidentiality can be waived by the patient by signing the form. So don't do it until you talk to an attorney.

It's the same for work injuries, you get hurt and the forms arrive. But the workers' compensation laws in Tennessee have a provision that requires the injured worker to sign a form called a C-31 medical waiver and consent form. You can find a copy of that form here, click to download the form C-31. I have seen some insurance companies sneak terms into a C-31 that allows the insurance company to talk to the doctor. This type of form should not be signed.

In almost every car wreck or motorcycle accident claim, or really any type of claim for serious injuries, I control the flow of information about medical records. We provide the insurance company with all of the records. We sometimes give them an agreed protective order allowing them access to the records, at their expense, but the order does not give the insurance company permission to speak privately with your doctor.

Continue reading "I was in a car wreck and the insurance company wants me to sign a medical release, what do I do?" »

Deadly car wreck and motorcycle accidents are on the rise in Tennessee

The Tennessean reported today that the more than 300 people have died since January 1 this year on Tennessee roadways. Car wreck fatalities are up more than 13 percent for the same period last year. Prior to this year, the number of deaths from automobile collisions was declining.

The article states that TDOT has identified several trouble spots, dangerous roads, perhaps poorly designed, where collisions happen most often. Moreover, many of these tragic accidents occurred as a result of motorcyclists not wearing helmets and drivers not wearing seatbelts. Helmets and seatbelts are important. Alcohol related collisions are still a problem. However, it is clear that the number of car wrecks and motorcycle injuries would decline if distracted driving decreased and drivers paid more attention to the cars and motorcycles around them.

A driver has a duty to keep his eyes on the road and be aware of what is around him. The law requires a car and motorcycle driver to use due care by taking reasonable steps to avoid a collision. Keeping distractions at a minimum and driving sober are the easiest ways to use due care.

Unfortunately, as a Nashville injury attorney who handles car wreck cases, too often I find negligent drivers avoid their responsibility and deny accountability. I recently had a case where the driver refused to accept responsibility even though his lawyer agreed his client was at fault. When careless drivers refuse to accept accountability, you need an experienced automobile accident attorney. Call me at 615-256-8880. I can help.

Here is my email: jonathan@lrwlawfirm.com or you can contact me through my website at www.lrwlawfirm.com.

I was injured in a Tennessee car accident and my doctor says I have degenerative disc disease in my neck. Can I still recover for my injuries?

As a Tennessee injury attorney, I have handled many cases where someone injured their neck in a car accident. These types of injuries can be associated with headaches, soreness, stiffness, arm pain and weakness. This is a common injury from a car wreck because the head and neck and not protected in a collision and take the force of the impact. For some, the pain goes away with rest, medication and physical therapy.
neck-pain3.jpg

Sometimes, after a car wreck your doctor will order an MRI of the neck ("cervical spine") if the pain does not go away. It is very common for the results of that test to show degenerative disc disease (sometimes listed a "DDD"). Insurance companies may use this condition to argue that you had this problem all along, well before the car collision. Many doctors will agree that degenerative disc disease is not caused by an automobile accident but rather due to age, like arthritis.

One study I have seen suggests 85 percent of people will have evidence of degenerative disc disease by age 50. Indeed, as we age, depending on activity levels and genetics, we all are subject to this condition. However, the key differential in an injury case is the fact that most people with DDD have no symptoms, no pain and no disability. A motor vehicle collision or work injury can aggravate, advance and make this condition worse. It can make it painful where there was no pain before. The impact can aggravate the condition to the extent that other medical treatments are necessary including traction, therapy, epidural steroid injections and even surgery.

In Tennessee, we have a specific jury instruction for pre-existing conditions. The at-fault driver is responsible for the pain and disability caused and made worse by the collision. Therefore, even if, like most people, there was DDD in the spine before the collision, the Defendant is responsible for the harm caused by the car accident. If there was no pain nor disability before the accident, the at-fault driver should not get credit for a dormant pain-free condition that is normal with age.

If you were in a car wreck or injured on the job in Tennessee and your doctor tells you have degenerative disc disease, then you need a personal injury attorney who knows the law in this area and understands how to educate a jury about why you are in pain. I have handled these types of car wreck cases in Brentwood, Franklin, Murfreesboro, Nashville and all over Middle Tennessee. I am available to speak with you or we can meet for a free consultation about your rights. Call our office at 615-256-8880 or visit my personal injury attorney website at www.lrwlawfirm.com.

I was in a car accident but the other driver does not have enough insurance. Now what?

Automobile accidents happen every day all across middle Tennessee. Unfortunately, many drivers involved in Tennessee car wrecks carry minimal or no liability insurance. These situations require an experienced car accident attorney. Tennessee insurance law requires a driver to only have at least $25,000 for injury and $15,000 for property damage. So, what does that mean for someone who is severely injured in a Nashville car accident by careless driver without enough insurance?

Many insurance policies include uninsured and underinsured insurance coverage. Tennessee's uninsured motorist law provides protection to drivers and/or passengers injured in an auto accident where the at-fault driver carries minimal or no insurance. In such an accident, the injured party's insurance carrier should pay for damages such as pain and suffering, health care expenses and medical bills, loss of enjoyment of life and loss of wages that the injured party could recover from the at-fault driver.

An insurance company cannot increase your insurance rates or cancel your coverage due solely to the payment of any claim under uninsured motorist coverage. With the cost of medical care, a weekend stay in the hospital can cost more than $25,000.00. Add to that lost wages, rehabilitation and physical therapy, the bills can easily exceed the coverage. That is why uninsured/underinsured policies are so important.

If you are involved in an automobile wreck in Middle Tennessee, it is important for you to consult an attorney as soon as possible. Nashville personal injury attorney Jonathan Williams has experience representing individuals that are injured by drivers that carry little or no car insurance. Contact Jonathan Williams today at (615) 256-8880 or visit www.lrwlawfirm.com if you have been seriously injured in a motor vehicle collision.

Inexperienced driving can lead to tragic car wrecks

Many of our Nashville injury attorney blog posts focus on the dangers of distracted driving in Tennessee. One cause of distraction is basic inexperience behind the wheel. The Tennessean reported today on the dangers teenage drivers face by highlighting the story of a young lady who was seriously injured in a Brentwood car wreck. Regarding Tennessee car crashes, the paper reports:

Tennessee has a 15 percent fatality rate for drivers ages 16 to 17 who are involved in crashes -- the 12th-highest in the nation, according to statistics from the U.S. Centers for Disease Control and Prevention. It's a problem across the South because of its winding rural roads, scarcity of trauma centers and love of vehicles not built for safety. Not all public high schools here offer driver's education classes, and many teenagers don't abide by age-specific rules to prevent wrecks.

The article highlights this link from the CDC a webpage focused on injury prevention and motor vehicle safety. In order to combat injuries and deaths from automobile collisions, the CDC recommends a graduated driver's license program, prohibiting the use of cell phones while driving, requiring teenage passengers to wear seatbelts and stricter enforcement of DUI laws.

In Tennessee, drivers of all ages are required by law to use "due care" when driving. Our "Rules of the Road" law requires, regardless of the speed limit, that every driver exercise due care by operating the vehicle at a safe speed, by maintaining a safe lookout, by keeping the vehicle under proper control and by devoting full time and attention to operating the vehicle, under the existing circumstances. Drivers are required by law to avoid endangering life, limb or property and to see and avoid colliding with any other vehicle or person, or any road sign, guard rail or any fixed object.

Continue reading "Inexperienced driving can lead to tragic car wrecks" »