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North Carolina Litigation Blog

North Carolina Litigation Blog

Category Archives: Liability

NC Court of Appeals Affirms Election of Remedies in Legal Malpractice

02 Monday Jan 2012

Posted by McIlveen Family Law Firm in law, Liability, NC Court of Appeals, NC Law, Negligence, News

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Court of Appeals, Law, Lawyer, Legal malpractice, NC Court of Appeals, Plaintiff, Summary judgment

I received a great Christmas present when the NC Court of Appeals issued an opinion in Danius v. Rogers, affirming summary judgment on behalf of a lawyer in a legal malpractice case I was defending. The plaintiffs settled the two underlying cases with the original tortfeasors and then filed suit against my client arguing that the lawyer’s alleged malpractice had damaged the settlement they were able to obtain. I argued that the plaintiffs had waived any claims against their attorney by electing to settle with the original tortfeasors. The Court of Appeals affirmed summary judgment, holding that the election of remedies barred the plaintiffs from pursuing claims of malpractice. A summary of the opinion appeared in the NC Lawyers Weekly December 28, 2011 edition under “Important Decisions”. The full opinion can be read here.

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Don’t Blog Yourself into a Lawsuit!

15 Wednesday Dec 2010

Posted by McIlveen Family Law Firm in law, Liability

≈ 2 Comments

Tags

Defamation, Facebook, MySpace, Risk management, Yelp

IBM CIO Report: Key Findings

Image by Ivan Walsh via Flickr

The Internet is a fascinating place that is opening up new forms of social interaction, activities, and organization of information. Social networking websites such as Facebook, Twitter, and MySpace are creating revolutionary ways to interact with people all over the world. In addition, websites such as Amazon, Yelp, and Angie’s List allow people to post online reviews of businesses of all types. The explosive growth in these types of activities in the last few years is truly amazing.

These undertakings, however, have a dangerous element. Blogs and postings of a negative nature (even if they are true) can result in unpleasant and costly lawsuits against the author. Note that it may still take time before there is a good body of caselaw to support freedom of speech online in blogs, forums, and social media publishing sites. And remember that freedom of speech does not mean you can say anything you want anywhere. Freedom of speech implies responsibility; its use should generally be for the benefit of the greater good. So the following are some risk management tips to consider before posting or blogging negative comments on the Internet.

  • Check your facts carefully and thoroughly document your sources. Truth is a complete defense in a libel case, although you still may run into expensive legal bills defending yourself. If you find that your facts are incorrect, remove the inaccurate content and consider issuing a correction or retraction.
  • If you purchase a product online and have an unpleasant experience with the seller, it might be wise not to post a negative comment or rating on the website. If you do post an adverse comment, be sure that it is objectively written, based on solid facts concerning your own direct experience, and not written in an inflammatory manner.
  • If you are a blog master and someone is posting false and incendiary statements on your site, remember that you may be held liable for these remarks since you are the “publisher.”
  • Seek protection for your rights. The Electronic Frontier Foundation, a not-for-profit organization, has a mission to safeguard the rights of those who use digital media and to provide legal guides to bloggers both large and small. It also offers helpful ideas to those bloggers and online posters to avoid libel suits.
  • Make certain your homeowners policy includes a personal injury endorsement to cover libel and slander suits. Most standard insurance company policy forms do not provide this automatically, and it can be added for a small additional premium. Also, consider buying a personal umbrella policy, which generally provides broader personal injury coverage.
  • If your blog is a money-maker, look into business liability coverage since the typical homeowners policy contains numerous business-related exclusions and restrictions. If you operate a small home-based business in conjunction with your blog or online business, consider requesting that a home-based business endorsement be added to your homeowners policy.

Get more personal lines insurance and risk management tips and ideas from IRMI.

Copyright 2010
International Risk Management Institute, Inc.

*****

 

Related Articles
  • Bloggers / tweeters – and libel / defamation (consumingexperience.com)

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Teen Killed Using Shredder Cannot Meet Standard for Woodson Claim

14 Thursday Oct 2010

Posted by McIlveen Family Law Firm in Liability, NC Court of Appeals, NC Law, Negligence

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Negligence, Woodson, Workers' compensation

Industrial shredder and granulator with a conv...

Image via Wikipedia

The N.C. Court of Appeals makes clear it takes more than negligence of the employer to meet the standard for a Woodson Claim. In Valenzuela v. Pallet Express, Inc., the Court upheld the trial court’s granting of summary judgment for the defendants, finding that the estate of a teenage boy who was killed while operating a shredder could not state a Woodson claim for negligence against his employer, even though the decedent was too young to operate the heavy machinery and a safety guard had been removed. The Court reasoned that there was no evidence that the employer knew its actions were substantially certain to cause serious injury or death.

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Jury Verdicts in N.C.

10 Tuesday Aug 2010

Posted by McIlveen Family Law Firm in Liability, NC Law

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cases, jury, N.C., North Carolina, research, trial, verdict, verdicts

Predicting what a jury will do in a trial is never an easy thing to do as most any lawyer will tell you. One of the things attorneys do in trying to make a verdict prediction is look at what jurors have done with similar cases in the same region. For recent North Carolina verdicts see below:

http://www.jvra.com/sample_edition/Carolina.pdf

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Frequently Asked Questions About Car Insurance

17 Thursday Jun 2010

Posted by McIlveen Family Law Firm in Insurance, Insurance Coverage, Liability, NC Law

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Insurance, Insurance Rates, Insured, Insurer, License, N.C. Law, Points

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.

Insurance Rates

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.

http://www.ncdoi.com/consumer/consumer_publications/automobile%20and%20vehicle/consumer%20guide%20to%20automobile%20insurance.pdf

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.

http://www.ncdoi.com/consumer/consumer_publications/automobile%20and%20vehicle/consumer%20guide%20to%20automobile%20insurance.pdf

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

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What happens when someone other than the named insured is driving the insured’s car and has an accident?

10 Thursday Jun 2010

Posted by McIlveen Family Law Firm in Insurance, Insurance Coverage, Liability, NC Law, Negligence

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Coverage, Insurance, Insured, Insurer, lawful possession, N.C., N.C. Law, Permissive use, reasonable belief

INSURANCE COVERAGE

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.

“ANY PERSON”

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.

“REASONABLE BELIEF”

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.

“PERMISSIVE USE”

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.

“LAWFUL POSSESSION”

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.

CONCLUSION

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.

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NC Third Lowest in Tort Liability Costs

04 Friday Jun 2010

Posted by McIlveen Family Law Firm in Insurance, Liability, NC Law, Negligence

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Comparative Negligence, Contributory Negligence, Insurance, N.C., N.C. Law, Tort, Tort Reform

According to US Tort Liability Index: 2010 Report put out by Pacific Research North Carolina ranks 3rd just behind Alaska and Hawaii in tort costs and law. The Report attempts to measure which states have the highest and lowest tort liability costs. The worst? New Jersey with New York and Florida joining it in the bottom three.

The Report goes on to classify states as either saints, sinners, salvageable, or suckers based on tort litigation risks, lawsuit awards, and the strength of tort laws on the books.

The saints: Alaska, Kansas, Louisiana, Ohio, and South Carolina.

The sinners: Alabama, California, Illinois, New York, and Pennsylvania.

The salvageables: Colorado, Florida, Georgia, Mississippi, Oklahoma, and Texas.

The suckers: Idaho, Iowa, North Carolina, North Dakota, South Dakota, and Virginia.

Want to know more see the full Report at http://www.pacificresearch.org/docLib/20100525_Tort_Liability_Index_2010.pdf

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Will “Joint and Several” Liability become Only “Several” Liability?

04 Friday Jun 2010

Posted by McIlveen Family Law Firm in Liability, Negligence

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Joint and Several, Liability, N.C. Law, Negligence

Currently N.C. is a “Joint and Several” liability state. Simply put this law means that in a lawsuit where the plaintiff has sued multiple defendants and a jury has found for the plaintiff the plaintiff can recover the entire judgment from any one of the defendants. This rule often comes as a shock to defendants especially when the defendant paying the judgment was the least at fault but the only defendant with money. If HB 813 is enacted “Several” liability would become the new law in N.C., Under the “Several” liability doctrine a defendant would only be required to pay the amount he is specifically liable for.

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