Alabama Personal Injury Blog - Automobile Accidents

Homicides Predict Traffic Deaths

Jon Lewis — Sun, 22 Nov 2009 12:42:37 GMT

Do State Homicide rates predict traffic fatalities? According to a University of Michigan study, they do. The study found that there was a parallel with the number of homicides and the number of traffic deaths. What seems to be the reason for this? Aggression.

The study looked at ten factors and "found that seven of them accounted for 71 percent of the variance in traffic fatality rates." Those seven are "homicide rates, proportion of male drivers, proportion of older drivers, number of alcohol-related liver failures (as a proxy for intoxicated driving), density of physicians, seat-belt use rate, and income." Apparently, the strongest predictor of these seven are homicides because homicides relate to aggression which relates to aggressive driving.

What does this teach us? We need to respect others on the roadways. We can't be in a hurry all of the time. We cannot drive while we are doing several other things: texting, playing with the radio, putting on makeup, using the telephone, changing CD's, and having too much noise and distractions in the car. We need to realize that we share the road with others, and we need to understand that different people have different driving styles just as different people have different psychological makeups.

During this holiday season, think before you act. Take a few miles per hour off your speedometer. Leave a little early for that appointment or meeting so you aren't in a rush. Be more passive on the roadways, and maybe you will save a life.

Originally posted at InjuryBoard by Jon Lewis

Loser Pays - A Bad Idea

Danny Feldman — Tue, 10 Nov 2009 07:53:15 GMT

When I was a law student at Vanderbilt, a contracts professor asked a question about whether the "loser" to a lawsuit should be required to pay the "foreseeable costs," ie. the winner's attorney fees. I argued "yes" given that the costs were foreseeable. I was wrong.

This argument, loser pays, really is nothing more than a way for business, insurance companies etc. to shut the doors to the courthouse to the vast majority of Americans who could never be able to afford to pay the tens or thousands of dollars that the other side may incur in attorney fees. Indeed, the reason why contingency fee contracts are regularly employed when representing injured persons is that those persons can't afford to pay their own lawyers an hourly rate. For example, a truck crashes into you, putting you in the hospital for months and causing you to lose your job and health insurance - how in the world will you be able to pay the other side's legal fees if you end up losing the case - and it must be remembered, that even when you are rear-ended, juries can still return a verdict for defendant.

In Alabama, the scale already is tipped very unfairly in favor of defendants. Under ARCP 68 a defendant may file an "Offer of Judgment" which plaintiff has 10 days to accept. If plaintiff does not accept the offer and if at trial, plaintiff does not receive a verdict in excess of the offered amount than plaintiff is on the hook for defendant's costs incurred after the Offer of Judgment was made. In other words, if defendant files an offer of judgment of $10,000 and the jury returns an award of $9,000 for plaintiff, the Court may tax costs (say $5,000) against plaintiff despite the fact that the jury returned a verdict in plaintiff's favor. There is no similar provision in the law that allows plaintiff to make an offer of judgment whereby defendant is on the hook for plaintiff's costs incurred if the jury returns a verdict for plaintiff in excess of what plaintiff offered to settle for. Nor does the rule allow plaintiff to collect costs against defendant if a jury returns a verdict in excess of what defendant offered. How's that for fairness?

As a matter of practice, I would be very surprised if an Alabama judge would enforce Rule 68 as described above, although they could. In addition "costs" do not include attorney fees, but rather are limited to actual costs incurred, like deposition bills, mileage etc. Of course, even costs can run up into the thousands of dollars very quickly, and it is the client that is on the hook for costs. So, you've got to tell your client, not only can you lose, but you also can lose and owe the other side thousands of dollars.

There are several other reasons why "loser pays" is a bad idea - but shutting down the courthouses to the vast majority of Americans is enough.

Originally posted at InjuryBoard by Danny Feldman

Get Off the Phone

Gaines Drago — Tue, 03 Nov 2009 16:55:28 GMT

Every year, well really every month for that matter, our cell phones appear to be able to perform more and more functions. They truly have become computers in the palm of our hand connecting us to anyone at anytime. Unfortunately, their distracting nature is causing tragic accidents on our road ways.

I was in Orlando, Florida, last weekend visiting a friend, and venturing out to the wonderful world of Disney. I had not been a passenger in a vehicle in a long time so I decided to watch the number of drivers who were texting not talking, and to my amazement I counted nearly one hundred. This is completely crazy to me. In order to text unless you are thirteen and just have a supernatural ability to type on your phone without looking texting requires you to lower your eyes and view the screen, thereby taking your eyes off the road. This was extremely alarming considering we were blazing down the Interstate 4 at speeds of at least 70 mph.

I know that since the radio was placed in the car people have been shouting about the dangers of distracting the driver and very little headway has been made. But texting is simply too much. Unfortunately, we usually wait until something happens that affects our own lives to initiate change, but in this case I urge you to impress upon your State legislators to pass legislation that outlaws the use of cell phones while driving. There is simply no need for such a distracting practice to be allowed. So please put the phone away when you are on the road ways.

Originally posted at InjuryBoard by Gaines Drago

Durable Power of Attorney over Health Care Issues

Gaines Drago — Wed, 23 Sep 2009 10:44:56 GMT

No one likes to think about their own mortality, especially while feeling vibrant and alive. The "It could never happen to me attitude," dominates our thoughts, and while it is true that most of the time it won't happen to you sometimes it does, and the people left to suffer through painful decisions are friends and family. Imagine, for example, that you are 35 years old, in relatively good health, good job, engaged but not married, but that you are one day involved in an auto accident and leaves you incapacitated. Your are rushed to the hospital, where your mother, father and fiance agonize over what to do. Your mother wants keep fighting even though you have limited if any chance and you are feeling some high levels of pain, but your fiance, whom you have discussed this scenario with wants to let you go. These kinds of things, while horrible do happen.

However, there is an easy way to resolve this type of problem: awarding durable power of attorney over health care to a trusted individual. This works much like a typical durable power of attorney and gives a trusted person the ability to make decisions about life and death when the other party is unable to do so. In addition you can assign more than one person this power so as to relieve the alone on an island effect this could have over a person. The most appealing aspect is that it allows the victim to have a say in his own life and death decisions. Guidelines can and should be given to the individual who will be given power of attorney over healthcare. This will alleviate much of the pressure on that person, and allow you a peace of mind to know that whatever happens you are in control over what happens in your life.

While, no one certainly enjoys thinking about these things, there is nothing wrong with having a plan in place that ensures you remain the key decision maker in your own life.

Originally posted at InjuryBoard by Gaines Drago

Are Insurance Companies failing to recognize that pain and suffering should be compensated?

Troy Schwant — Wed, 16 Sep 2009 11:30:15 GMT

It is becoming more and more evident that Insurance companies are taking the position that your medical bills are the only matter they are going to take into consideration when evaluating your claim. This hard and fast rule is elminating compensation for genuine pain and suffering that people experience from car wrecks or other accidents. They are using a broad brush by not considering the pain and suffering some accident victims go through after being involved in an accident. So the question is why are they doing this and how did it get to this point?

The answer of course is money, both in the why and the how. The why is easy, they don't want to pay money on a claim for someone who claims to have suffered every day for two months in recovering from an auto accident, yet only has 3,000.00 in medical bills. They take the position that this case is only worth a little more than the medical bills, and if you don't take their offer, then sue them. Anyone that has recovered from an auto accident knows that the days, weeks, and months that follow an auto accident can be very difficult, you can miss work, be unable to enjoy your family, and essentially be in pain every day. To argue that a person shouldn't be compensated for suffering through this pain, that was caused by someone else, is simply repugnant.

Now, lets get to the how. How have insurance companies been able to take this position with people that have been hurt? The answer again is money, but it is not as easy you think. Insurance companies have spent millions, not on claims, but in election campaigns, and advertisements that talk about rising insurance costs, and bogus lawsuits and have convinced the American public that if someone has filed a lawsuit, that person is just a money grubbing liar, who wasn't even hurt in the first place. Unfortunately this perception has taken hold of far too many Americans. The perception is that people that file lawsuits, want to file lawsuits, when the reality is that 99% of the people that file lawsuits do not want to file a lawsuit, but have no other choice based on the insurance company failing to negotiate with them fairly.

The next time you hear a comment about sue happy Plaintiffs, just remember that the person making this comment, has probably never been in an accident and made a claim to be compensated. If they had, they would be singing a different tune.

Originally posted at InjuryBoard by Troy Schwant

Males Die More Than Females

Jon Lewis — Wed, 09 Sep 2009 18:13:59 GMT

According to a study done by the Insurance Institute for Highway Safety, more males have died in automobile crashes from 1975 through 2007. Why? Men typically drive more and take more chances such as speeding and driving drunk. The study can be viewed here.

The article has some very interesting facts regarding the statistics relating to males and females in car crashes. For example, "Almost one-third of all motor vehicle crash deaths in 2007 were females. Females accounted for 29 percent of passenger vehicle driver deaths, 47 percent of passenger vehicle passenger deaths, 30 percent of pedestrian deaths, 12 percent of bicyclist deaths, and 9 percent of motorcyclist deaths."

Check ou the study for more interesting statistics.

Originally posted at InjuryBoard by Jon Lewis

Horrible accident in West Mobile...

Troy Schwant — Wed, 09 Sep 2009 11:06:04 GMT

A 9 year old girl, who's name has not been released was struck by a vehicle while trying to board a school bus. The extent of the young girl's injuries are unknown at this time, yet the article linked below does reference a broken collarbone, and a potential brain bruise.

I hope the girl recovers from these injuries, and this is unfortunately a tragic reminder of the dangers that kid encounter while simply trying to access their school bus.

While reading this article I thought about the school crossing guard that I drive by every day and how aggressive she is in stopping vehicles, or slowing down cars driving near the intersection. You can see the frustration on the faces of drivers who want to get to work as quickly as possible, and don't want to slow down, but after reading this article, I am thankful for the crossing guard's actions.

The next time a crossing slows you down, or stops your car, don't get frustrated, be thankful. I know I will be.

blog.al.com/live/2009/09/9yearold_struck_by_car_while_b.html

Originally posted at InjuryBoard by Troy Schwant

Money for a Wreck? Fast? Think again!

Jon Lewis — Mon, 31 Aug 2009 08:08:40 GMT

I was working out at the YMCA the other day, and another one of those attorney ads came on the television. The promise? We'll get you money fast for your wreck. Well, I don't know what process they are using, but I do know that our experience shows that proper compensation for your injuries does not come fast.

In this commercial, the firm implies that the process is quick, easy, and simple. That might be true if the case is settled for less than a fair value. Usually, the adjusters for the insurance companies make you prove your case and injuries before they properly evaluate the claim, and even then, they don't always evaluate it properly.

What if the case has to go to court? What does that entail? Well, we have to file a complaint with the court. Once the defendant is served with a copy of the complaint, they will have thirty (30) days to answer in Circuit Court. Once that process is concluded, paper discovery ensues, depositions are taken, a scheduling order is entered, and the case is typically set for trial within 12-18 months (For more information on the process, visit the Lewis, Feldman, Lehane & McAtee, LLC website). Is that fast? Is that quick and easy?

What about issues of subrogation? What is that? If your medical bills are paid by a health insurance company such as BlueCross BlueShield of Alabama, you have to pay them back and potentially negotiate a settlement with them. If Medicare paid your bills, you have to send them a letter and wait for a response. Do you know how long it takes to get a response from Medicare? Think about typical government action and how long that takes.

When attorneys start making promises of quick and easy cash for your injuries, question the process. How familiar are the attorneys with the court system? How many cases have they tried to verdict? How do they define proper compensation? This article is not to denigrate any firms or their attorneys, but to dispel the idea that these cases can be settled for quick and easy cash and provide you with adequate compensation. They CAN be settled for quick and easy cash, but the case will usually be settled for less than fair value.

Originally posted at InjuryBoard by Jon Lewis

College Football Season is almost here, make sure you are prepared...

Troy Schwant — Sun, 30 Aug 2009 17:48:10 GMT

I like most men from the South, really like College football. Ok, I love college football. Growing up in the South, it is tradition to attend tailgates at college towns like Tuscaloosa, Athens, Auburn, and my personal favorite, Oxford, Mississippi.

When talking about college football and tailgating in the South Eastern Conference, one would be remiss not to discuss the alarmingly rate of alcohol related accident that occur either on the way, or more likely on the way home from a college football game.

Now I like a drink before and during a college football game, just like everyone else, but far too many times have I witnessed fans driving home from a big win, after having way too much to drink. I would like to challenge as many people as possible to help solve this problem. There are a number of ways to help solve this problem:

Call a cab. If you live near the campus, call a cab, and have a friend bring you to your car in the morning.

Ask a friend to bring you home. If you know you have had too much to drink, ask your friend to give you a lift home.

If you are going to a game that is several hours away, don't plan on driving home after the game, find a cheap hotel near the town, so that you can take a cab to the hotel.

I hope everyone has a safe and enjoyable College Football season.

HOTTY TODDY!!

Originally posted at InjuryBoard by Troy Schwant

Its no "accident" when you run over bicyclists after drinking all night

Danny Feldman — Tue, 25 Aug 2009 12:08:38 GMT

Three cyclists recently were hit and injured in Baldwin County by a 28 year old driver who apparently had been out drinking all night and had yet to go to bed. See article at http://blog.al.com/live/2009/08/two_baldwin_county_cyclists_hi.html. Interestingly, this 28 year old "child" still lived at home with his parents. After the incident, the father of the 28 year old driver issued a statement advising that thoughts and prayers went out to the bicyclists and their families for this terrible "accident." According to the article, the 28 year old driver had been out drinking all night and refused a breath test. A blood test was taken and although results have not yet been released, I believe that there is a very good chance that these tests will show that this young man was drunk when the wreck occurred at 8:30 in the morning.

Staying out all night drinking, then driving around drunk, losing control of your vehicle and then running over cyclists is no "accident." Rather, had one of the cyclists died, which easily could have happened, the case is one of vehicular homicide. Calling something an "accident" when it really is a deliberate action taken without regard for the health and well-being of the general public, cyclists included, really is an attempt to minimize the seriousness of the wrongdoing involved. While it may be true that this motorist did not mean to run over these cyclists, the fact of the matter is he did mean to get drunk; he did chose to stay up all night; after drinking and staying up all night, he did decide to drive his car - consequences be damned.

This case hits close to home in Baldwin County where another young man on two separate occassions separated by only a couple of years, got drunk and killed cyclists. Tragic, but hardly an "accident," especially the second time.

Here in Birmingham, I handled a case 5 years ago where a man, only a few years younger than the one here at issue, and like the one here, still living at home with his parents, went out, got drunk and ran over 3 cyclists on Lakeshore Drive. He fled the scene, dragging one of the cyclist's bikes under his car for more than a mile. His mother made him turn himself in and when he took a blood test a couple of hours later, we were able to determine through expert testimony from a toxicologist, that his blood alcohol level at 7:30 am on a Sunday morning was about twice the legal limit. Discovery revealed that this young man had had a serious of incidents, including arrests and convictions for public drunk, disturbing the peace, DUI's etc. However, each time, his penalty was quite minor, maybe attendance at an alcohol abuse class. Even in the incident described above, he spent only one night in jail because, fortunately, the cyclists involved did not die and they decided not to press assault charges.

I wonder about Mr. Maple, the 28 year old in Mobile. I would be very surprised, indeed, stunned, if he did not have a number of arrests and/or convictions, for DUI and the like. The article states that he was able to leave by posting a $1,000 bail. Has he learned a lesson? Will he quit going out and getting drunk and threatening not only himself, but every other motorist, cyclist or pedestrian that gets in his way? I bet not - and that's too bad for all of us.

Originally posted at InjuryBoard by Danny Feldman