I will be attending the 30th IRMI Construction Risk Conference, which is being held in Orlando, FL November 14-18, 2010. IRMI is a great resource for risk and insurance solutions for those in the construction industry. If you haven’t visited their website you are missing out on a wealth of information. http://www.irmi.com
The doctrine of sovereign immunity normally bars complaints against sheriffs deputies sued in their official capacity. A county
may waive sovereign immunity by purchasing liability insurance but only to the extent that coverage is provided. In N.C. a government entity can purchase liability insurance without waiving sovereign immunity. In Owen v. Haywood County, (2010) the N.C. Court of Appeals reviewed the exclusionary provision within the insurance policy, which stated that the insurance did not provide coverage to any claim where the covered person was entitled to sovereign immunity, and concluded that this particular language meant that Haywood County did not intend to waive its sovereign immunity.
The new Comparative Negligence Bill Expected to Reform NC Contributory Negligence Law will have to wait until next year. The third version of the bill was sent to the Judiciary Committee on May 19, 2001 but failed to be heard during this year’s legislative session.
People often ask me what they can do to lower their car insurance premiums. Insurance companies look at a number of different things in determining what to charge for car insurance. They also have to stay within the rules set by the N.C. Rate Bureau. Some of the factors they look at, you cannot change such as how long you have had a driver’s license or where you live. However, there are some things that make a big difference that you do have control over, such as reviewing the amount and types of coverage you have, asking for multi-car policy, equipping your car with anti-theft devices, and shopping around for the best price.
via Found UB4
I thought I would take a moment to answer some of the more frequently asked questions about car insurance. Please remember I am mainly writing about N.C. Law and the law changes frequently so you should always consult an attorney about any issue you may have.
Coverage For Damage to Others
People are always asking what is Bodily Injury or What is Uninsured Motorist Coverage… well here is the answer:
Bodily Injury: This coverage pays for an injury you cause someone else through an accident. It can pay for medical bills, rehabilitation, funeral expenses, etc…
Property Damage: This coverage pays for property damage to someone else’s car when you have caused an accident. It can pay for the actual repair cost or the cost to total out the vehicle.
Coverage For Your Damages
Collision: This coverage pays for damages when your vehicle is damaged in an accident no matter who is at fault.
Comprehensive: This coverage pays for miscellaneous damages such as fire, theft, hail damage, broken glass etc..
Uninsured Motorists Coverage (UM): This coverage pays for both physical damage and vehicle damage when someone hits your car and it turns out they do not have insurance.
Underinsured Motorists Coverage (UIM): This coverage pays for bodily injury to you when you are in an accident and the person that hits you does not have enough insurance to cover your injuries. UIM coverage does not pay for property damage.
Medical Payments Coverage: This coverage will pay for medical expenses up to your policy limits if you or an insured is injured in an automobile accident.
How Does the Insurance Company Determine My Rate?
The insurance company uses several things including your driving record. In N.C. points are assessed on your driver’s license for traffic violations and at fault accidents. If you have points on your license your insurance will be higher. Insurance companies also look at where you live and how far you drive on a daily basis. If you live in an urban area your rates are probably higher than someone that lives in the country. If you drive the vehicle every day and for more than a few miles each way your will pay more than you would for a weekend vehicle that is only occasionally driven. You will also pay higher rates for a vehicle that is more frequently stolen or for a vehicle that would be expensive to repair or replace.
Many of these factors you can’t control. You can however control whether you have points on your license. If you get a ticket you may want to consult an attorney who can very likely help you get it reduced rather than paying the ticket and having the points assessed.
What About Insurance Points
Insurance points are very real and they will cost you. In N.C.
Adding An Inexperienced Driver
How bad is the pain going to be when I add my teenager to my insurance policy? Unfortunately, it is going to hurt. I recently added my own teenage daughter to my policy and had sticker shock. The NC Dept of Insurance put out the following chart in a recent brochure. They based the rates on drivers with no insurance points.
If you have more questions, the N.C. Dept of Insurance puts out an excellent brochure on insurance laws in N.C. http://www.ncdoi.com/consumer/consumer_publications/automobile%20and%20vehicle/consumer%20guide%20to%20automobile%20insurance.pdf
You might be surprised to learn who is behind the push to move North Carolina from a contributory negligence state to a comparative negligence state. It’s attorneys! Primary sponsors of the House Bill are Rick Glazier, an attorney from Cumberland County, John Blust, an attorney/accountant from Guilford County, Deborah Ross, an attorney from Wake County, and Bonner Stiller, an attorney from Brunswick County.
In contract law, the question of whether acceptance of an offer is within a reasonable time where no time for acceptance is specified is generally a question of fact for the fact finder given the surrounding circumstances. What is reasonable depends on the need or lack thereof for timely acceptance, what the parties believed to be the time frame for acceptance, and the expiration of the need for the offeree to perform the act required by the offeror.
In the case of a settlement contract, the consideration is generally thought of as forbearance to bring a suit or the forbearance to appeal a less than favorable verdict depending on the party that is making the offer. Once the statute of limitations has run there is no longer a need for the offeree to perform on an offer from the insurance company, because the insurance company no longer needs the offeree to forbear in bringing a suit or release the insurance company of any claims. There is no longer consideration for the contract. Therefore, a settlement contract cannot be formed after the statute of limitations has run.
In Smith and N.C. Farm Bureau v. Murrell and Progressive Insurance, 167 N.C. App. 655 (2004), the court held that Farm Bureau’s acceptance of Progressive’s offer to settle after the statute of limitations had run was not acceptance within a reasonable time because the release included in Progressive’s offer was no longer meaningful.
However, if the offeror mislead the offeree to believe that the offer would remain open past the statute of limitations then the court could find that a contract existed based on an equitable estoppel argument. Simply making an offer to settle and leaving the offer open should not create an equitable estoppel argument because equitable estoppel is based on the giving of misinformation or deceit.
Being as specific as possible about how long the offer to settle is on the table and when and how acceptance is to be made may be the best way to avoid the possibility of a person coming back after the statute of limitations has run and expecting to still be able to accept an offer to settle.
In North Carolina, the insurance contract controls whether insurance coverage exists. There are several variations in insurance policies that are directly bearing on the question of coverage in this type of situation. In order to determine whether there could be coverage a determination needs to be made as to whether the insurance policy contains “Any Person”, “Reasonable Belief” or “Permissive Use” language and whether the person driving the car (tortfeasor) was in “lawful Possession” of the vehicle.
Some insurance policies define the insured as “any person using your “covered auto”. This provision provides coverage to anyone using your car. It has no limiting language, so presumably even someone who has stolen the insured’s car would be an insured and the insurance company would likely have to provide coverage to that person.
The analysis used to determine whether the tortfeasor had “Lawful Possession” or “Reasonable Belief” that he could use the vehicle when the accident occurred is almost identical. In Nationwide Mut. Ins. Co. v. Baer, 113 N.C. App. 517, 520 (1994), the court held that the “Reasonable Belief” exclusion included in the Nationwide insurance policy was not in conflict with the N.C. Financial Responsibility Act. The court reasoned that the exclusion requiring a person have a reasonable belief that he was entitled to use the vehicle was simply another way of determining whether a person knows that he lacks the owner’s permission to use the vehicle. In previous cases, the court had concluded that the exclusion broadens the inquiry into whether the tortfeasor had a subjective, reasonable belief that he was entitled to use the vehicle.
However, some insurance policies particularly corporate policies contain a “Permissive Use” clause. These types of policies usually extend coverage to “any person while using the insured auto with the permission of the named insured provided his actual operation is within the scope of such permission”.
If the insurance policy in question contains the “Permissive Use” clause, the analysis of coverage is as follows:
- First, did the insured grant permission for the tortfeasor to use the vehicle? The permission can be either express or implied. If not there may not be coverage.
- Secondly, did the tortfeasor exceed the scope of the permission granted? The scope of the permission can be limited temporarily, geographically, and to limited purposes. N.C. courts follow the minor deviation rule, which provides that if the use of the vehicle by the permittee is not a gross deviation of the terms then coverage will apply.
The N.C. Financial Responsibility Act requires that the policy provide minimum coverage if the tortfeasor is in “Lawful Possession” of the vehicle. “Lawful Possession” basically means that the tortfeasor did not steal the vehicle. Most insurance policies do not include language regarding “Lawful Possession” however this does not prevent the insurance company from having to provide coverage if the tortfeasor was in “Lawful Possession” of the vehicle at the time of the accident. The statute will control in situations where the language of the statute and the language of the insurance policy are in conflict with each other.
Coverage analysis should begin with the insurance policy. If the policy contains “Any Person” language, there is almost certainly coverage regardless of the reason why the tortfeasor had possession of the vehicle. If the policy contains the “Reasonable Belief” language, the analysis is one-step. Did the tortfeasor have a “Reasonable Belief” that he was entitled to use the vehicle? If the answer is yes then he is likely entitled to full coverage. If the answer is no, he probably not entitled to any coverage.
If the insurance policy has a provision, regarding “Permissive Use” the coverage determination hinges on whether the individual had permission from the insured to use the vehicle and that he did not exceed the scope of that permission. If both of these elements are met, then the policy will likely provide coverage. If the individual did not have permission to the use the vehicle, you then must look the N.C. Financial Responsibility Act to determine if the individual was in “Lawful Possession” of the vehicle and therefore entitled to minimum limits coverage. For these types of analyses, you should also consult an attorney specifically one familiar with insurance law, insurance defense, and insurance coverage.
As oil continues to flow out of Deepwater Horizon, experts estimate the oil may reach the coast of North and South Carolina by the end of the month. Insurers are already estimating billions in cost which could increase as business owners begin filing suit.