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New York Personal Injury Law Blog

Monday, January 23, 2017

Insurance Bad Faith



If you or a loved one is
injured in an accident you may be entitled to compensation which usually means dealing with an insurance company. Although insurers have an advantage because they have teams of attorneys and experts, the law requires insurance companies to treat claimants and policyholders fairly. While there may be legitimate reasons to deny a claim, an insurer that fails to engage in good faith and fair dealing may be held liable for bad faith.

What is bad faith?

Bad faith is a legal term for an insurer denying a claim without a reasonable basis. In first party insurance situations, bad faith arises when an insurance company denies a claim without a valid reason.
Read more . . .


Monday, January 16, 2017

Can You Sue City Hall?



Many individuals mistakenly believe that they cannot sue
city hall, but this is not the case. Under the doctrine of sovereign immunity, town, city, county and state governments were once protected from most lawsuits. Today, those rules have been scaled back to some extent, and the government can be held responsible for personal injuries and property damage or unlawful conduct. Let's take a look at personal injury and other lawsuits that can be brought against government entities.

There are a number of ways the government can be held liable for accidents and injuries.
Read more . . .


Monday, January 9, 2017

What if more than one party is responsible for my injuries?



If you were
injured in an accident, it may be possible to hold another individual accountable by pursuing a personal injury lawsuit. In some cases, however, more than one person may be responsible for your injuries. In these circumstances you may still be compensated under the doctrine of comparative fault: the allocation of responsibility under the theories of contributory and comparative negligence.

Contributory Negligence

In the few states that still rely on the contributory negligence approach, individuals have a duty to act reasonably and not put one's self at risk of injury. This means that if a plaintiff is even partially responsible for the accident, he or she may be barred from recovering damages.
Read more . . .


Monday, December 26, 2016

10 Things to Bring to Your First Meeting With Your Attorney

Hiring an attorney is not something most people do every day, so being a little bit unsure of how things are going to go is perfectly normal. To help ease some of the stress and make the process go more smoothly, take time to compile and bring the following list of items with you to your first meeting.

  1. A list of all your contact information. Your lawyer is going to need to know your full legal name and any other names you go by, your address, phone number(s), and email address.

  2. The names and contact information of other people that might get involved with the case - people on the other side, people on your side, witnesses, doctors, police, insurance agents, etc.  If a case has already been filed against you, the name(s) and contact information of the lawyer(s) representing the other side will also be needed.

  3. A typed up or written down account of the circumstances surrounding the situation that is causing you to seek legal help. Try to make your summary of events as detailed as possible. If writing or typing isn’t one of your strengths, try creating an audio recording.

  4. A timeline of events. The best way to do this is to buy a calendar, write all the important events on it, and bring it to the meeting with you.

  5. Any materials (including documents, digital files and photos) you have that relate to your legal matter. If possible, put the documents in an order that makes sense when paired with the summary of events and timeline you put together above.

  6. A list of information (particularly documents) you wish you had or thought you had but can’t seem to find now.

  7. The truth. You don’t have to swear to tell the truth, the whole truth, and nothing but the truth unless you are taking the witness stand in the courtroom, but lying to your attorney will not help your case. 

  8. Bring a good idea of what you hope to get out of the case. Think about what winning looks like to you. It is difficult for your attorney to figure out how best to help you if they don’t know what you want. 

  9. An open mind paired with a good sense of what your gut is telling you. Your lawyer may suggest a solution that you would never have imagined, or let you know that you don’t have a case. Listen to what they tell you, but don’t be afraid to share your thoughts on their suggestions.

  10. A list of any questions you have. The meeting will be far more productive if you leave without nagging questions or lingering doubts.

Monday, December 19, 2016

Strict Product Liability

If an individual is harmed by a purchased device or product, damages may be recovered under strict product liability. The plaintiff, however, must be able to prove several things in order to prevail in suit against a distributor, manufacturer, or retailer. Generally, the product must have been “in an unreasonably dangerous condition” at the time of sale and intended to reach the consumer without any alteration.  Moreover, the injury suffered must be a direct result of the flawed product itself. 

Defects are not all created equal.  A plaintiff may bring a cause of action for either a manufacturing or design defect.  Generally speaking, in cases involving a  “manufacturing defect” only some products in the line of distribution will have been affected. The defect, for example, may have resulted from a malfunction in factory production. A design defect, on the other hand, which is integral to the product's structure, usually affects the entire line of the inventory, making each device dangerously defective.

Product liability can also be proven if a manufacturer does not provide adequate warning regarding a product's use. If the risk posed to the consumer is not patently obvious, the manufacturer is required to provide an understandable notice of warning to the customer. For an injured individual to win such a case, his or her injury must have resulted from the lack of warning or direction that could have prevented the injury sustained. 

If a plaintiff's injury results from that person's misuse of the product or his or her own negligence, that individual cannot prevail under the theory that the design or manufacture of the product was defective.

If an individual has been injured by a defective product, or because there was no evident warning of some dangerous aspect of the product's assemblage or use, a case of product liability may be brought. When considering whether to file a product liability lawsuit, an attorney specializing in the field should be consulted to assess whether the injured party has a viable case.


Monday, December 12, 2016

Alternative Dispute Resolution Might Be the Right Way to Bring a Case to a Close

Civil lawsuits arise because of a dispute between parties.  They’re unable or unwilling to resolve the dispute, so they get lawyers involved and cases are filed.  The litigation process is a way to resolve those issues with the help of a judge or jury.  But that’s not the only way to resolve a dispute.  

 
There are costs and benefits to litigation.  The obvious benefit is that a party may get the resolution it wants.  In a commercial context, pursuing litigation can also serve as a notice to others that the business does not hesitate to enforce its rights. But, the costs of litigation are many.  
  • Litigation often comes with a hefty price tag.  A party might not only be on the hook for its own costs and attorneys’ fees, but also a verdict against it and possibly the costs and attorneys’ fees for the opposing parties.
  • A case can literally take years.  If you win at trial, there could be an appeal.  Collecting on a money damages award will take time, if you can do it at all.  The time and energy a party spends on a legal case is time and energy not spent on other things, like family, making a living or running a business.  
  • Litigation can be emotionally draining.  The parties may have to relive over and over again, during depositions (when parties are questioned under oath) and at trial, in front of total strangers, very stressful and painful situations.
  • Litigation results in a loss of privacy.  Court proceedings and verdicts are generally matters of public record.   Someone off the street can go to the court clerk’s office, open up a file and read about very personal issues (such as family disputes, medical conditions and finances).  
One way to seek the outcome a party wants, without the heavy costs and risks of litigation, is alternative dispute resolution.  The parties can agree to mediation or arbitration, which may bring litigation to a close.
 
Mediation is a process by which a mediator works with the parties and attorneys to create a resolution acceptable to all parties.  Arbitration is a more formal process by which evidence is presented and an arbitrator (or panel of arbitrators) decides who should prevail.  An arbitration decision may or may not be binding on the parties.  
 
A mediator will learn the circumstances leading to the case, the parties’ positions and what they’re willing to give and take to resolve the issue.  The mediator may meet separately with the parties, try to create common ground and possibly come up with creative ways to meet the parties’ needs.  A mediator may, or may not, try to guide the parties with his or her assessment of the strengths and weaknesses of the case and the likelihood of success or failure, if it proceeds.
 
The parties can control how much time and energy this will take, instead of being subject to a trial schedule.  Agreements can be kept confidential.  Money, time, energy and emotions not spent on litigation can be spent on other things.  
 
Alternative dispute resolution is a means to bring control and certainty to the legal process which is invaluable when you are recovering from a traumatic, stressful and painful event that led to the legal action in the first place.

Monday, November 28, 2016

Can You Sue if You Signed A Liability Waiver?

You might be asked to sign a liability waiver before engaging in a recreational activity.  For some endeavors that seem naturally dangerous, this will come as no surprise.  But, in day to day life, you might come in to contact with liability waivers on a more frequent basis than you expect.  You might be asked to sign a liability waiver when engaging in certain sports, such as skiing, watching certain live sporting events and even when signing up for a gym membership.  While signing the waiver is often a prerequisite to participation, you should know that these agreements are not always enforced from a legal standpoint.   Therefore, if you or your loved one is injured after signing one you still have a chance of recovering for your injuries. 

 A liability waiver is an agreement between two parties, wherein one party agrees to release another party from responsibility should the first party suffer some injury at the second party’s fault.  In the context of everyday recreational activities, the participating party is assuming the risk of injury from the hosting party and in some cases, giving up their right to sue altogether.  One type of contract that might qualify as a liability waiver is a contract of adhesion.  A contract of adhesion is a boilerplate form that is presented to a party who has no opportunity to negotiate the terms.  An example of this type of agreement is a preprinted waiver on the back of a receipt.

Although these agreements are very common, they can be invalidated based on certain factors.  Each state has a different take on liability waivers, and therefore the law varies greatly across the country.  Some state courts strictly enforce these agreements while others seem to disfavor them.  Most courts look at a combination of factors including how the document was drafted and the circumstances surrounding its signing.  Courts will inquire as to the nature of the document.  They favor documents that are clear and unambiguous and that include terms that a reasonable person would understand.  They also look at whether the waiver was obvious or evident.  Was the waiver presented to the party or was it hidden on the back of a ticket stub?  Courts favor an obvious approach.  As far as the circumstances surrounding the signing of the agreement, the courts will try to discover whether it was entered into voluntarily.  If someone was forced to enter into the agreement, it will likely not be upheld.  Lastly, any agreement that violates public policy in some way will usually be invalidated by a court. 

If you signed a liability waiver, but were subsequently injured, and want to know if you have a chance to recover in a personal injury action, contact us today for a case evaluation today. 

 


Monday, November 21, 2016

Personal Injury Cases & Minors

When an adult is injured, he or she has the legal right to bring a lawsuit or settle with the at-fault party for compensation. A child, on the other hand, does not have those same rights prior to his or her 18th birthday. When a child is injured, it is the responsibility of the parents, or legal guardian, to advocate for the child and ensure his or her best interests are protected. While the laws vary greatly state to state, there are generally some unique considerations which come into play when a minor is the plaintiff in a personal injury proceeding, these include:

The Statute of Limitations May Differ
All states impose a time limit which requires that the injured party file suit within a given time frame from the date of the accident. In many states, the statute of limitations for an injured child will be different from that of an adult and the time period may not begin until the child turns 18 (allowing him or her to bring suit on their own).

A Guardian Ad Litem May be Appointed
Since children do not have the capacity to protect their interests in legal proceedings, some states require the appointment of a guardian ad litem. This individual must honestly represent the child’s best interests. In many states, the court will choose the Guardian Ad Litem; it is often a parent or close relative of the child.

The Parents May Also Be Able to Collect
While the compensation for injury will belong solely to the child, the parents of the child are legally responsible for medical bills and they may be able to also bring a claim against the at-fault party for compensation for these associated expenses. When this does occur, the parents’ claim is often tried with the child’s although two separate verdicts are issued.

The Standards of Care May Be Different for a Child
In lawsuits regarding negligence, the court will seek to establish whether all parties acted with a certain standard of care. This is even true of the injured party as the defendant may claim that the negligence of the plaintiff contributed to the injury. In the case of a child, he or she will likely be held to a different standard of care based on what is reasonable for a child of that age, intelligence and maturity. In some states, a child under a certain age is incapable of being negligent so a claim of contributory negligence would not be valid.

Court Approval May Be Required
Most settlements for a child’s personal injury will require court approval. Before approval, the court will generally demand that all documentation of the case along with a detailed accounting of the attorney's fee and case expenses be submitted for the judge’s review. The judge will then approve the settlement, if it is appropriate and in the best interest of the child. If the settlement is approved, the money must be deposited into a designated bank account approved by the court. The money cannot be withdrawn without order of court until the 18th birthday of the injured child. It's important to note that the parents are not entitled to this money.

Since children are seen as vulnerable members of our society, these extra legal safeguards are intended to provide additional protection. If your child has been injured, it’s imperative that you contact a seasoned personal injury attorney who can help you to better understand local laws and how they apply to your child’s case, and make sure that your child’s best interests are protected now and in the future.


Monday, November 14, 2016

3 Steps to Follow When You Are Injured or in an Accident

The legal process involved in filing a personal injury lawsuit may deter some people from seeking damages regardless of the severity of their injury, but, having an idea of what you can expect at each stage of the process can help you determine if legal action is the appropriate route to take in your particular situation. An experienced personal injury attorney can counsel you as your case develops, and fight for your rights in the courtroom if necessary in order to achieve the outcome that's most favorable to you.

Regardless of how you were injured, there are certain steps that everyone who is in an accident or has been injured in some other way should take if they think they may have a personal injury lawsuit. The tips below provide an outline of what to keep in mind in the days, weeks and even months following your injury to ensure your potential personal injury claim is on solid legal ground.

A variety of situations can lead to injury, such as a slip/trip and fall, a car accident, a defective product, or a dog bite, among many others things. Following the suggestions below can help protect your right to file a claim for your injury in the near future, and will likely allow the filing process to run more smoothly than if you don't take these early preparations.

Put everything in writing.

Take notes on all the details of your injury. These don't have to be formal statements, just jotting down everything you can remember about the circumstances immediately before, during and after your injury can be a big help when it comes to filing your claim and jogging your memory. This sort of anticipatory preparation could mean the difference between your claim being invalid and you collecting all of the benefits to which you are entitled. It's even important to write down the conversations you had with others who may have been involved in the accident or injury claim, even if they were just a witness. Make sure that your physician or the hospital you visit for your injury notes the circumstances surrounding your injury in their records.

Take photographs.

If possible, take pictures of your injuries and the scene of the accident as soon as you can following an accident or injury. Focus on any visible cuts, bruises, burns, swelling or other marks on your body. Don't just take one picture, make sure you capture the injury and the scene from a variety of angles. This approach will hopefully result in some detailed pictures you can later present to the insurance company as evidence supporting your claim.

Obtain copies of your medical records.

Medical records can be an integral part of your claim, and have the power to make or break your case. Whether your medical records just serve to help you seek medical treatment from a specialist or if you need them to support your claim that your injuries were in fact caused by this accident and not a pre-existing condition, it's important to contact your physician and get copies of all records that may be pertinent to your case.


Monday, October 24, 2016

What Should You Do When Your Insurer Wants to Settle Your Personal Injury Case?

Hint: When You’re Injured, Your Relationship with Your Insurer Changes

Have you ever marveled at how much better an airline, retailer or other business is at processing your order and taking your money than it is at providing a refund? The reason isn’t technological and it isn’t because the refund process is somehow more difficult. It’s because the nature of the relationship between you and the business has changed. You are no longer a prospective customer the business is trying to woo or a current customer the business is trying to please. Instead, you’re a liability. And liabilities are on the bottom of most businesses’ priority list. 

Likewise, when you are looking to buy car insurance or other insurance involving personal injury, insurers are anxious to “sign you” and lock in the premiums you’ll pay. When you’re injured though, you area liability and chances are you’ll be treated like one. 

Following an Accident, Your Insurer May Try to Save Money at Your Expense

Here’s how most insurance companies respond to news of a serious accident on the part of one of their insureds. 

Perhaps a car accident has resulted in the need for expensive surgery, physical therapy and home care. Like everyone, you’re afraid of a protracted delay in the payment of your medical expenses and other costs. Your insurer is aware that you’re likely experiencing this anxiety. 

By offering you a quick settlement, the insurer can capitalize on your anxiety by offering you far less than your claim for damages is likely worth. For instance, perhaps you’re insured for $1 million. Your medical costs and other losses may total $300,000. By offering you a fast settlement of $75,000, your insurer can appear helpful and concerned while actually saving $225,000.

Not all insurers handle claims like this example every time, but you should be aware of insurers’ motivations following an accident and make informed decisions accordingly. The best way to make informed decisions is with the assistance of an experienced personal injury attorney. 

A Personal Injury Attorney Can Protect Your Rights and Interests.

A qualified personal injury attorney can protect your interests by dealing knowledgeably with the facts of your case. What is the likely extent of your injuries? What are the limits of your insurance policy? What would a jury likely award you based on the facts of your case? And what is the actual value of your case, based on the answers to these questions?

Once your attorney investigates your case in conjunction with medical providers to assess your injuries and determines the value of your claim, he or she can work from a position of strength to negotiate with your insurer. Remember, an insurance policy is a legally binding contract. If you’re injured and covered by insurance, your insurer is obligated to pay you the full value of your claim, unless you make the mistake of settling for a lesser sum early in the process. Contact a personal injury lawyer as quickly as possible whenever questions regarding insurance policy payouts arise. 


Monday, October 17, 2016

Expert Witnesses Can Be the Key to a Lawsuit


In civil cases, plaintiffs have the burden of proving defendants are to blame for their injuries or economic losses by a preponderance of the evidence, which essentially means, that based on the evidence, the defendants were more likely than not responsible for the injuries.  That can be a lot more complicated than it sounds  Expert witnesses can be a critical key to success in winning over the jury and winning these complex matters.

 
Take the case of Margaret Wellinghorst.  In November 2007, she was walking her dog when she tripped on the edge of a trench that had been dug in the road.  She fell and injured her left hand.
Read more . . .


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