Defective Products

WHAT SHOULD I DO ABOUT A DEFECTIVE PRODUCT?©

Written by: Mark Wolfe, Attorney at Law. The following information is provided as general advice and without charge. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published March, 2005. Injuries caused by a defective product may give rise to a product liability claim or case. In the context of motor vehicle accidents, there are two primary areas related to product liability claims. One area is related to the crashworthiness of a specific vehicle and the other relates to a defective component of a motor vehicle. If you suspect that you may have a potential product liability claim or case it is important to contact an experienced product liability attorney as soon as possible. NOTE: Preservation of evidence, specifically the suspected defective vehicle and/or component, is critical for the successful prosecution of a product liability case. If the suspected defective vehicle is in the possession or control of an insurance company, notify the company immediately in writing of your suspicion and ask them to preserve the vehicle so as to allow further investigation. It should also be noted that Product Liability claims and cases are very expensive to successfully prosecute. Under Alabama law, the victim in a civil claim for restitution carries the burden of proof. In a Product Liability claim this means the victim must prove the product in question was defective. This requires the victim, and the victim’s attorney, to provide competent evidence to prove a product was defective. Because the issues in such a case are very technical and require a high degree of specific knowledge, expert review and testimony is almost always required. Obtaining this expert testimony can be very expensive. Even if a component such as a seat belt or air bag fails to operate as designed, the burden of proof is still on the victim. This means the victim still has to support such a claim with expert testimony to show that the component failure was in fact because of a defect and not some other cause, such as misuse or improper maintenance. The burden of proof issue, and the related expenses, often make it uneconomical for victims to pursue product liability claims or cases for minor injuries. For more information on defects related to motor vehicles and to report a suspected defective vehicle or component, please visit the National Highway Traffic Safety Administration (NHTSA) web site. Also more information about defective products is available at the Boteler, Finley & Wolfe Motor Vehicle Accident Resource Center. Click here to learn about more about crashworthiness.

What Should I Do After the Accident?

AT THE ACCIDENT SCENE

1. Remember the three C’s of safety:  Be Calm, Be Clear and Be Careful. Check on all drivers and passengers to determine the extent of injuries. 2. Get medical attention for anyone who may need it. Call the police. If you are not sure whether medical personnel or police are needed, it is better to be safe than sorry: so call them. Many times people do not think they are hurt at the accident scene only to wake up the next day in tremendous pain. Also, property damage that appears minor can be a lot more extensive and expensive than it first appears. In both those situations, the lack of a police report regarding the accident could be detrimental to your insurance claims. 3. Make a mental note of the location of the vehicles and any other physical evidence such as skid marks or gouge marks. Look for landmarks that you can reference such as street signs, posts, road markers, reflectors, etc.  As soon as possible you may want to sketch a rough diagram of the accident scene indicating the location of the physical evidence. Also, if possible you may want to try to get photographs of the accident scene. 4. Try to identify witnesses to the accident. Get the name, phone number and address of anyone who may have witnessed the accident. 5. Exchange information with the other driver. It is generally advisable to limit your conversation with the other driver to basic information such as: Name, address, phone number, driver’s license number, tag number and basic insurance information. 6. Tell the investigating police officer what happened and make you sure you tell him or her about any pain complaints or problems you may be experiencing. Also, ask the officer when the accident report will be ready and how you go about getting a copy of it. 7. Photograph and/or video the scene and vehicles. Make sure to photograph skid marks, gouge marks, etc that might be helpful in establishing the point of impact.

WITHIN 24 HOURS OF THE ACCIDENT

1. Notify your insurance company of the accident.  Under most insurance policies you have a duty to timely notify your company of an accident, even if you think the accident is the other driver’s fault, and you must cooperate with your insurance company as they investigate and/or process any claim. Get the name and phone number of each person you talk to and write down the claim number assigned to your claim. 2. Get a copy of the police report as soon as it is ready. Review it carefully for accuracy. If you find an error or disagree with the conclusions, write the investigating officer a letter indicating the errors and/or explaining why you disagree with the conclusions.  If you have the name of a witness who is not referenced on the report, provide that information to the officer.  Date your letter and keep a copy for your file. 3. If you think the other driver was at-fault or responsible for the accident, notify his or her insurance company of your claim. When dealing with the at-fault driver’s insurance company, remember they have no obligation to tell you what your rights are or how to best use the available insurance benefits. Also, be very cautious as to what you say about the accident or injuries. Your conversation may be being recorded or in the very least the adjuster will be taking notes about everything you say. (Note: In Alabama it is not illegal for one party to a conversation to record the conversation without telling the other party that the conversation is being recorded.) Your initial conversation should simply be enough to establish that a claim is being made and to find out the process for property damage and/or bodily injury claims. Get the name and phone number of each person you talk to and write down the claim number assigned to your claim. 4. Take pictures.  Many times accident victims do not get pictures because the insurance company has taken photographs. Those photographs are the property of the insurance company and they are not obligated to share copies with you unless they are requested during a lawsuit, by which time the photographs may have been lost or destroyed.

  • Take pictures of the damage to your vehicle. Don’t forget to get photographs of interior damage such as broken seats.
  • Take pictures of the accident scene and any physical evidence such as skid marks. (Note: Pictures of the accident scene should only be done if  it can be done safely without danger to you or other drivers.)
  • Take pictures of any noticeable physical injury such as cuts, bruises and/or abrasions.

5. Find out about your rights and what types of insurance coverage may be available to you.  This usually requires consultation with an experienced personal injury attorney. Most experienced personal injury attorneys do not charge for consultations and the mere fact that you consult with an attorney does not obligate you to hire or retain an attorney. Many times car accident injury victims are reluctant to consult with an attorney because they do not want the insurance adjuster to think they are “being greedy.” Also, insurance adjusters are trained to discourage claimants from consulting with an attorney. Remember, a claimant that does not know his or her rights is at a great disadvantage when trying to resolve a claim.

INJURY CARE AND TREATMENT

Please remember, if you have been injured in an accident, the most important aspect of this matter is not your financial recovery, rather the most important issue is your health and your physical recovery from your injuries. No amount of money will “undo” the injuries you have suffered and your goal should be to do everything you can to limit the long term consequences of your injuries. To that end we suggest the following: 1. Tell your treating healthcare provider about all pain complaints or problems you believe are related to the incident in question. 2. Follow the treatment schedule prescribed by your healthcare provider. Remember your doctor wants you to make a good recovery from your injuries and he or she has been trained to get you back to normal as quickly and efficiently as possible. Many times injury victims will begin to feel a little better and decide to quit receiving treatment even though they have not completed their full treatment schedule. Medical studies have clearly shown that incomplete treatment can result in long term physical consequences. As you can understand, the law will not hold an at-fault party responsible for future problems related to the injury if the victim’s own actions contributed to those future problems. 3. Make sure you tell your doctor of any improvements in your condition and if your condition gets worse, please notify the doctor immediately. 4. If you cannot keep a scheduled appointment with your healthcare provider, please notify his or her office as soon as possible. Failure to report in advance may result in a N/S (no show) being marked in your chart. Remember, the insurance adjuster will be reviewing your treatment records and a N/S in the file may be used against you. 5.  Follow any restrictions or limitations prescribed by your healthcare provider. We recognize that there is no such thing as a convenient time to be injured; however, if your doctor limits your activities please follow those limitations. Again, the treatment schedule and procedures have been established for the purpose of getting you back to normal as quickly as possible.  A few days off of work after an injury may be financially difficult now but it is better than having a lifetime of chronic pain and disability because you didn’t adhere to the restrictions imposed by your healthcare provider. Also, remember more and more insurance companies are using surveillance techniques to determine the true nature of a claimant’s injuries.  Surveillance tape of an injury victim failing to follow physical restrictions or limitations can be devastating to the claim. 6. Full disclosure to your healthcare provider is important. Report prior similar injuries to your doctor. We recognize that on initial in-take forms prior similar injuries are often inadvertently left off or forgotten; however, in the hands of a crafty insurance defense lawyer such an omission can be used against you. Also, remember the insurance company has access to your entire health insurance claim history and may already know about a prior similar injury. As a rule, if you are not sure whether or not it’s important…disclose it and let the doctor decide.

Hiring an Attorney

WHAT SHOULD I KNOW ABOUT HIRING AN ATTORNEY?©

Written by: Mark Wolfe, Attorney at Law. The following information is provided as general advice and without charge. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. A portion of the following article is reprinted, with permission, from the Summer 2004 edition of Legally Speaking. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published March, 2005. As more and more lawyers and law firms utilize TV commercials to attract clients, it is important for consumers to know how to select an attorney that is right for their case. Flashy TV commercials and catchy slogans promising large monetary settlements may be enticing, but the consumer who needs to hire a personal injury attorney should consider and discuss three key areas before hiring a personal injury attorney. These areas are: the fee for services, the attorney’s trial experience with similar cases and the resources the attorney has for your claim or case.

CONTINGENCY FEES

Most people now know that attorneys who represent personal injury victims do so under a contingency fee contract. (The attorney fee is a percentage of the money recovered by the attorney.) Yet the percentage or contingency amount can vary greatly between lawyers. Also, the consumer should know exactly how the contingency fee is going to be calculated. When discussing attorney fees and representation costs, there are two areas for inquiry by the consumer. One question for consumers to ask is whether the contingency fee is going to be charged against the property damage recovery and/or medical payments (med-pay) benefits from your own insurance carrier. Many experienced attorneys do not charge fees related to property damage claims or med-pay benefits. The second area for inquiry is the amount of expenses related to the claim and/or case. Under Alabama law an attorney can advance expenses related to a client’s claim or case such as medical record expenses, filing fees, deposition expenses, etc. However, the client is responsible for reimbursing those expenses from their portion of the settlement proceeds. Most contingency fees for simple motor vehicle accident liability claims authorize a fee percentage of around one-third (33 1/3%) plus expenses.* It is important for the consumer to know how much the expenses will be for their particular claim and/or case. Sample questions that consumers should ask about a lawyer’s contingency fee:

  • Does your contingency fee apply to property damage?
  • Does your contingency fee apply to benefits recovered from my own insurance, such as med-pay benefits and/or health insurance benefits?
  • How much do you think the expenses will be for my claim and/or case?
  • How will the expenses be handled?
  • Do you have a sample distribution schedule for a similar case?
  • Will I get a copy of the fee contract?

* For more complicated and expensive cases involving defective products, contingency fees generally range from 40 to 50% of the net recovery (the amount after reimbursement of expenses).

TRIAL EXPERIENCE

You should not be afraid to ask the lawyer about his or her trial experience in handling similar legal matters. The goal in handling a personal injury claim or case is to resolve the matter for a fair amount without having to subject the client to the stress, strain and uncertainty of a trial. While it is true that most civil claims and cases settle without a trial, trial experience is critical when hiring a personal injury attorney. Insurance adjusters know and rate the experience level of the attorney representing a claimant. This is a factor in their evaluation of a claim. Talk with people in the community about their recommendations. Many healthcare professionals who treat injury victims have knowledge about the skill and trial experience of local attorneys. Sample questions that a consumer should ask about a lawyer’s trial experience:

  • How many cases similar to mine have you actually tried in Court? Tell me about the results of those cases.
  • How many cases have you litigated involving this insurance company?
  • What attorney or law firm does their insurance company use? And, how many cases have you tried against that lawyer and/or law firm?

RESOURCES

When hiring a personal injury attorney you should also consider the resources of that lawyer and law firm. This includes the financial resources necessary for the expenses of the claim or case and the general resources such as personnel and technology. A lawyer’s commitment to having skilled and qualified support personnel is reflective of an attorney who wants the best for his or her client. Likewise, attorneys who want to be efficient and effective for their clients utilize current technology and state of the art office equipment. Simply put, if the lawyer does not want to, or can not afford to, invest adequate resources into his or her own practice, what makes you think he or she will invest adequate resources in a claim or case? Sample questions a consumer should ask about the lawyer’s resources:

  • Do you have the financial resources to adequately prosecute my claim or case?
  • Who else in your office will be working on my case and what will they be doing?

CONSULTATIONS ARE FREE

So why not talk to several attorneys. Consumers should be cautious of attorneys who push too hard to have a representation agreement signed immediately. Most personal injury attorneys do not charge for consultations and this allows consumers the opportunity to talk with several different lawyers or law firms before deciding which lawyer or law firm to hire. When consulting with an attorney ask for copies of material and information they have available for potential clients. NOTE: There are situations and times when immediate legal intervention may be necessary, but the attorney should fully explain such a situation.

Insurance Claims

WHAT SHOULD I KNOW ABOUT INSURANCE ADJUSTERS?©

Written by: Mark Wolfe, Attorney at Law. The following information is provided as general advice and without charge. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published March, 2005.

  1. Insurance is a business. Despite all the catchy slogans and “feel good” advertising done by insurance companies, the most important thing for claimants to remember is that insurance is a business. Revenue – Expenses = Profits. Insurance companies collect premiums (revenue) and try to pay out as little as they can on claims (expenses). The less an insurance company pays on a claim, the more profit it makes.
  2. Insurance adjusters are trained professionals who work for the insurance company. If you are making a claim against the at-fault driver’s insurance (a liability claim) then the adjuster’s job is to try and protect the at-fault driver and, more importantly, the insurance company’s profit margin.
  3. Insurance adjusters can not give legal advice to claimants. When making a claim against the at-fault driver’s insurance company, the adjuster has no obligation to tell you your rights. In fact, most adjusters do not have a law degree and it is illegal for them to offer legal advice to claimants.
  4. Insurance adjusters do not have to advise you of other insurance coverage. There is no legal requirement for an adjuster to voluntarily tell a claimant what other insurance benefits or coverage may be available. Nor can an adjuster tell you how you can use those other benefits or coverage to your maximum benefit.
  5. Insurance adjusters are trained to discourage claimants from seeking legal advice. A claimant who does not have an attorney is commonly referred to as an “unrepped” claimant. This is short for unrepresented by an attorney. Insurance studies have shown that unrepresented claimants recover less restitution for similar claims than those claimants who have legal representation. Simply put, the adjuster has the advantage when dealing with an unrepresented claimant. NOTE: The adjuster may also have an advantage if the attorney representing the claimant does not have experience in the area of auto-negligence claims and litigation experience. Some insurance companies have put into place elaborate programs and procedures to help adjusters discourage claimants from seeking legal advice. Others have armed their adjusters with phrases and concepts to dissuade claimants from seeking legal advice. “You don’t seem like the kind of person who’s going to run out and get an attorney.” This implies that only greedy people get attorneys. “All an attorney is going to do is take your money….I’d rather see you get the money as opposed to paying 50% of it to an attorney.” Reputable and experienced auto-negligence attorneys can usually help claimants recover more restitution and most only charge a one-third contingency fee. “I’m going to pay the same on this claim whether you get an attorney or not.” While this is rarely, if ever true, even so an experienced auto-negligence attorney can often help identify other available coverage or benefits and use these additional benefits in a way that is best for the claimant.

Additional Information: What should I Know About Claim Procedures?

Insurance Claim Procedures

WHAT SHOULD I KNOW ABOUT CLAIM PROCEDURES?©

Written by: Mark Wolfe, Attorney at Law. The following information is provided as general advice and without charge. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. A portion of the following article is reprinted, with permission, from the Summer 2005 edition of Legally Speaking. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published July, 2005. According to statistics released from two major insurance survey groups, 39% of bodily injury claimants were not satisfied with the way the insurance company handled their claim. According to Accenture and SAP America Inc. a three year survey found that 45% of the unsatisfied bodily injury claimants felt the settlement amount was not fair and 20% of the unsatisfied claimants felt that it took too long to resolve their claim. The extensive survey also reviewed satisfaction levels for property and casualty claims. Those consumers who were surveyed were people who had attempted to handle their claim without legal representation or assistance. A review of the process used by insurance companies to settle claims will help readers understand this high level of dissatisfaction. As has been reported and documented in earlier editions of Legally Speaking, claimants who do not have legal representation are at a disadvantage when dealing with a professional claims adjuster. Claims adjusters are highly trained in the art of “claim devaluation.” This is the process whereby claims adjusters methodically and meticulously review claim information, including personal background information of the claimant, looking for anything that will help them justify reducing the payment of the claim or give them an advantage when making settlement offers. Insurance companies generally follow a three step process for handling claims. Each step in the process involves reducing the amount of money the insurance company actually pays on a claim. When a covered claim is first reported to an insurance company, a “reserve” is set for the claim. This reserve amount is the most money the company expects to pay on that particular claim. Once the reserve has been set the adjuster then begins the second step which is “claim devaluation.” This involves looking for ways to make sure that the amount of money paid on the claim is less than the reserve amount. Adjusters are trained on how to review medical records and other claim material for “devaluation” points. They also have lawyers at their disposal to review liability issues and other arguable legal defenses. After a thorough review of claim material and possible legal defenses the claim is assigned a “settlement value.” This is usually done by a claims supervisor and the settlement value is always below the reserve amount. The ratio of Reserve Amount to Settlement Value is strictly monitored by insurance companies to make sure that claims are not being “over reserved.” The adjuster is then given an amount of money to settle the claim. This is commonly called the adjuster’s “authority.” However, adjusters are trained, and are expected, to negotiate a claim settlement for less than their settlement authority. This is where personal background information can be used against the claimant. For example, a review of private financial information about a claimant may reveal that the claimant is experiencing financial difficulty. Knowing this information, the adjuster might make a low settlement offer with a “take it or leave it” deadline. Or an adjuster may find out about a claimant’s past or ongoing legal problems, such as a bankruptcy or divorce, and use that information to “lowball” the claim. The amount actually paid on the claim is known as the ACP (actual claim payment). An adjuster’s job performance rating is often related to his or her ability to settle a claim for less than the settlement authority. The ratio of Authority to ACP is also strictly monitored by insurance companies. All insurance companies conduct internal audits of randomly selected claim files to make sure various claim ratios are within prescribed guidelines. The whole time a claim is going through this “devaluation” process, adjusters are trained to discourage the claimant from seeking legal advice or legal representation. In addition insurance companies spend millions of dollars each year promoting themselves as “kind and caring” companies so claimants think and believe a fair amount will be paid on their claim without having to get a lawyer. When it’s all said and done, an insurance company is a business. It is not a “neighbor” nor is it a person with “good hands.” Insurance is a business that strives to pay as little as possible on each and every claim that is presented. If a personal injury claimant chooses not to have legal representation then that claimant very well could be the next “dissatisfied” consumer.

Defective Product Questions

I HAVE A QUESTION ABOUT A DEFECTIVE PRODUCT ©

Written by: Mark Wolfe, Attorney at Law. The following information is provided as general advice and without charge. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published May, 2005. Injuries caused by a defective product may give rise to a product liability claim or case. In the context of motor vehicle accidents, there are two primary areas related to product liability claims. One area is related to the crashworthiness of a specific vehicle and the other relates to a defective component of a motor vehicle. If you suspect that you may have a potential product liability claim or case it is important to contact an experienced product liability attorney as soon as possible. NOTE: Preservation of evidence, specifically the suspected defective vehicle and/or component, is critical for the successful prosecution of a product liability case. If the suspected defective vehicle is in the possession or control of an insurance company, notify the company immediately (in writing) of your suspicion and ask them to preserve the vehicle so as to allow further investigation. It should also be noted that Product Liability claims and cases are very expensive to successfully prosecute. Under Alabama law, the victim in a civil claim for restitution carries the burden of proof. In a Product Liability claim this means the victim must prove the product in question was defective. This requires the victim, and the victim’s attorney, to provide competent evidence to prove a product was defective. Because the issues in such a case are very technical and require a high degree of specific knowledge, expert review and testimony is almost always required. Securing this expert testimony can be very expensive. Even if a component such as a seat belt or an air bag fails to operate as designed, the burden of proof is still on the victim. This means the victim still has to support such a claim with expert testimony to show that the component failure was in fact because of a defect and not some other cause, such as misuse or improper maintenance. The burden of proof issue, and the related expenses, often make it uneconomical for victims to pursue product liability claims or cases for minor injuries. For more information on defects related to motor vehicles and to report a suspected defective vehicle or component, please visit the National Highway Traffic Safety Administration (NHTSA) web site. A link to their web site is provided below.

CRASHWORTHINESS

According to NHTSA, every ten seconds someone in the United States is involved in a motor vehicle accident. The fact is that car accidents do occur and they are foreseeable to automobile manufacturers. This means automobile manufacturers have a duty to design cars to protect occupants from injury in certain types of collisions or accidents. Crashworthiness is the ability of a vehicle to prevent or limit injuries when an accident occurs. The failure to timely incorporate known safety features, such as three point safety belts for rear passengers, is often the issue in dispute in a crashworthiness claim or case. Other areas of recent concern include roof crush, side impact air bags, crumple zones, occupant ejection, roll-over propensity and side impact safety.

DEFECTIVE COMPONENT

Sometimes motor vehicle accidents are caused by the failure of a key component such as a tire separating or brakes failing. Other times injuries may occur in an accident because of the failure of a safety device such as seat belts or air bags to operate properly. Because a motor vehicle is a complex machine incorporating numerous components, there are hundreds of potential component failures and/or defects. If you suspect an accident, and resulting injury, was caused by a defective component or you believe an injury was received in an accident because of a defective component, you should undertake steps to document the events and secure the component.

THE FOLLOWING LINKS MAY PROVIDE INFORMATION AND RESOURCES FOR LEARNING MORE ABOUT A DEFECTIVE MOTOR VEHICLE:

National Highway Traffic Safety Administration: Find out more about defective vehicles and report defective vehicles. http://www.nhtsa.dot.gov/ Insurance Institute for Highway Safety: Find out about crashworthiness tests and ratings for various cars. Also, this site has reports on vehicle safety components such as airbags, seatbelts, bumpers, etc. http://www.hwysafety.org/ Rollover Reports and Information About SUV’s: http://www.citizen.org/autosafety/suvsafety/bettersuv/articles.cfm?ID=10211 The Center for Auto Safety ™ : Excellent resource web site for information about vehicle defects and recalls. Also, this site has general information and links relating to auto-safety: http://www.autosafety.org/ Consumer Product Safety Commission: This site has information about recalls for various products including motor vehicle recalls. http://www.cpsc.gov/ Contact Boteler, Finley & Wolfe, Attorneys about a Defective Vehicle Claim: mark@bfw-lawyers.com

Commercial Accidents

I HAVE A QUESTION ABOUT AN ACCIDENT INVOLVING AN 18 WHEELER.©

Written by: Mark C. Wolfe and Knox Boteler, Attorneys at Law. The following information is provided as general advice and without charge. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published May, 2005. ©2010. FACT: According to statistics from the National Transportation Safety Board, every 16 minutes a person will die or be injured in an 18 wheeler involved accident. The underlying cause in almost half of all 18 wheeler accidents is driver fatigue. Because most 18 wheelers are involved in interstate commerce their operation is governed and controlled by Federal law. Most states have also adopted certain rules and regulations for the operation of 18 wheelers on public roadways. The Federal Motor Carrier Safety Administration (FMCSA) is responsible for regulating safety rules for large trucks. The primary mission of the FMCSA is to reduce crashes, injuries and fatalities involving large trucks and buses. There are numerous rules and regulations related to the safe operation of 18 wheelers. Commercial drivers and companies engaged in interstate commerce must comply with these rules and regulations. Important Information: If you (or a family member) have been involved in an accident involving an 18 wheeler or a commercial vehicle you may want to consider consulting with an experienced motor vehicle accident attorney as soon as possible. Besides the other various issues and concerns of a motor vehicle accident, 18 wheeler and commercial vehicle accidents involve complex legal issues related to compliance with hundreds of safety rules and regulations. Many commercial vehicles also contain Electronic Data Recorders (EDRs). An experienced motor vehicle accident attorney knows what rules and regulations may be applicable. This data and information may not be preserved without a Preservation of Evidence letter to the trucking company and its insurance company. Without an immediate issuance of a preservation of evidence letter critical data and information may not be available if needed in the future. Knox Boteler is a member of the AAJ- Trucking Litigation Group and he has available a wide variety of Preservation of Evidence letters that can be quickly and easily modified for immediate issuance to the trucking company and its insurance carrier so that critical evidence is not lost or destroyed. If you or a loved one has suffered injury because of the careless actions of a commercial driver, please call of e-mail Knox at knox@bfw-lawyers.com as soon as possible. For additional information about 18-wheeler or commercial vehicle collision, please see the resource links below:

Contact an Attorney About Your 18 Wheeler Claim or Case. For accidents occurring in Alabama: knox@bfw-lawyers.com (Please provide the date and location of the accident.) We can even help you locate an experienced trucking litigation attorney outside the Gulf Coast area through our Trucking Litigation listserve! Federal Motor Carrier Safety Administration (FMSCA): http://www.fmcsa.dot.gov/ FMSCA Rules and Regulations: http://www.fmcsa.dot.gov/rules-regulations/rules-regulations.htm FMSCA Facts and Research: http://www.fmcsa.dot.gov/facts-research/facts-research.htm National Transportation Safety Board – Highways: http://www.ntsb.gov/Surface/highway/highway.htm

Drunk Driver

I HAVE A QUESTION ABOUT AN ACCIDENT INVOLVING A DRUNK DRIVER.©

Written by: Mark Wolfe, Attorney at Law. The following information is provided as general advice and without charge. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published May, 2005. FACT: Impaired driving is a chronic problem that will affect one in three Americans in their lifetime. Nearly 42,000 people die in motor vehicle crashes each year, and about 16,000 of these are alcohol-related. Alcohol-related crashes account for one person killed every 33 minutes and one person injured every two minutes every day of the year. From the National Highway Traffic Safety Administration web site. In Alabama driving under the influence of alcohol, or in an impaired condition, may be considered wanton conduct. In Alabama wantonness is similar to what other States call gross negligence or recklessness. Alabama law defines wanton conduct as the conscious doing of some act, or omission of some duty, knowing that the act or omission will likely or probably result in an injury. A drunk or impaired driver knowingly disregards the dangers of drinking and driving. This conduct is often considered wanton and, in addition to compensatory damages, Alabama law allows victims of wanton conduct to recover punitive damages from the drunk or impaired driver. The legal limit for blood-alcohol content (BAC) in Alabama is .08. Victims of a drunk driver should seek immediate advice from an experienced motor vehicle accident attorney.

THE FOLLOWING LINKS MAY PROVIDE MORE INFORMATION AND RESOURCES RELATED TO DRUNK AND IMPAIRED DRIVERS Victims: Contact an Attorney About a Drunk Driving Claim or Case. In Alabama: mark@bfw-lawyers.com (please specify City and/or County where accident occurred) In other States: Please visit our Find an Attorney page. National Highway Traffic Safety Administration – Impaired Driving Division. This site provides information about ongoing programs to combat injuries and deaths caused by impaired drivers. http://www.nhtsa.dot.gov/people/injury/alcohol/ Mothers Against Drunk Driving. A very good informational site with state by state DUI statistics. http://www.madd.org/home/ Estimating Your Blood-Alcohol Content: This formula and chart provides a method for estimating alcohol consumption and blood-alcohol levels based upon body weight. http://www.ak-drunkdrivinglawyer.com/dui-dwi-information/bac.htm

Injuries and Treatment

I HAVE A QUESTION ABOUT INJURIES AND TREATMENT.©

Prepared by: Mark Wolfe, Attorney at Law. The following information is provided as general advice and without charge. Some of the information and material contained herein is reprinted, with permission, from the Spring 2005 edition of Legally Speaking. Questions about specific issues or situations should be directed to an experienced motor vehicle accident attorney. NOTE: The following material is protected by all applicable State and Federal Copyright laws. Published May, 2005.

FREQUENTLY ASKED QUESTIONS ABOUT INJURIES AND TREATMENT

The accident wasn’t my fault, should I use my Health Insurance to cover the cost of my medical bills? Generally the answer is yes. While the medical bills related to treatment of injuries suffered in an accident are an element of recoverable damages, most auto-insurance companies do not allow or authorize partial payments related to a liability claim. (Please read What Should I Know About Insurance Claims and Coverage for more information on the types of insurance claims arising from a car accident.) This means they will not reimburse these bills until the claimant is ready to settle all aspects of the bodily injury claim and sign a release. If care and treatment is going to take several weeks and/or months, it is better to use your health insurance to cover the medical bills so as to insure continued care and treatment. Also, remember under Alabama law, your health insurance carrier is entitled to be reimbursed for any bills it paid that are also part of your liability claim. This right is called Subrogation but the amount and extent of a subrogation claim can vary depending on the policy language and applicable law. I have a liability claim for injuries against the at-fault driver’s auto-insurance carrier but I do not have Health Insurance, will my hospital and/or doctor bill the at-fault driver’s carrier? No. Most healthcare providers are not set-up to delay billing for the care and treatment they provide and most auto-insurance carriers will not make partial payments for healthcare bills related to a liability claim. Some healthcare providers will accept an Attorney Protection Agreement (APA) on behalf of a patient who does not have health insurance. An APA is a binding agreement wherein the client/patient authorizes his or her attorney to pay any outstanding medical bills from the client’s anticipated liability settlement. An experienced motor vehicle accident attorney can usually provide clients with the names of doctors and hospitals that will accept an APA. I went to the hospital after the accident and I just received a notice that the hospital is filing some sort of legal proceeding against me. What should I do? The hospital has probably sent you a notice, and maybe a copy of, the Hospital Lien it has filed, or intends to file, with the local Probate Court. This is not necessarily a legal proceeding against you but it serves as legal notice of an amount due to the hospital from any settlement or other insurance, such as med-pay, paid to you as a result of the accident. Generally, insurance companies are bound to satisfy the Hospital Lien if it is not satisfied or withdrawn. Under Alabama law, only hospitals can file a lien. There is no statutory provision to allow doctors to file a lien with the local Probate Court. This lack of financial protection is why many doctors will not treat accident victims who do not have health insurance. At the hospital I was told that I had “whiplash” or “soft-tissue injuries” from the accident. What type of doctor should I use for my follow-up care? Generally, soft-tissue injuries from a trauma such as a car accident are treated by three types of doctors: General Practitioners (Family doctors), Orthopaedic doctors and Chiropractors. In Alabama, Chiropractors do not prescribe medication and they rely on adjustments and physical therapy to treat soft-tissue injuries. Family and Orthopaedic doctors can prescribe medication and they will often prescribe physical therapy in conjunction with their treatment. Having represented a large number of clients who have suffered soft-tissue injuries in car accidents, we must defer to our client’s personal preference regarding the selection of a healthcare provider. Simply put, we do not try to suggest or recommend one type of doctor over another. The most important thing we tell our clients about healthcare is to follow their doctor’s instructions and complete the healthcare plan suggested by the doctor. Remember, the doctor’s goal is to get you better and to help you make a full and complete physical recovery from your injuries.

GENERAL INFORMATION ABOUT AUTO-ACCIDENT INJURIES

IRC Study Reports That Injuries Occurred in 26.4% of 2003 Car Accidents. STUDY ALSO SHOWS THAT SERIOUS INJURIES FROM CAR ACCIDENTS ON THE DECLINE. The Insurance Research Council (IRC) recently concluded and published its study, Trends in Auto Injury Claims, 2004 Edition. The study of 2003 auto accident claims revealed that about one in four auto accidents resulted in a personal injury claim. The research also suggests that the seriousness of these personal injury claims has decreased in recent years. “Indicators such as extent of disability, days of restricted activity, and time lost from work tell us that auto accidents are producing fewer serious injuries”, said Elizabeth A. Sprinkel, senior vice president of the IRC. She attributes the decline in serious injuries to the manufacture of safer cars and auto safety campaigns. According to past IRC studies the “one-in-four” injury to accident ratio has remained about the same since 1980. A review of similar reports from 1980 and 1995, and the current report, shows injuries occurring in an average of 24.6 % of all auto accidents. To learn more about medical care and treatment after an accident please read, Care and Treatment After the AccidentNeck Injuries Common in Rear-End Accidents. According to the American Academy of Orthopaedic Surgeons®, 20% of all people involved in a rear-end accident will suffer a cervical sprain/strain injury (commonly called Whiplash) which will require medical care and treatment. The majority of these people will make a good recovery from their injuries after 4 to 12 weeks of care but for a small percentage the problems could become chronic. (See links below related to Whiplash.)

THE FOLLOWING LINKS MAY PROVIDE MORE INFORMATION ABOUT INJURIES AND TREATMENT WebMD. A good general information web site for a variety of medical questions and conditions: http://www.webmd.com/ The Merck Manual of Diagnosis and Therapy. A searchable data base for information about healthcare and treatment: http://www.merck.com/mrkshared/mmanual/home.jsp PDR.Health. This on-line health information site is sponsored by the publishers of the Physician’s Desk Reference. The web site contains information about prescription medications and Over-the-Counter medications: http://www.pdrhealth.com/ The Association for the Advancement of Automotive Medicine. A multi-disciplinary organization that seeks to improve care and treatment for accident victims and to help prevent injuries in motor vehicle accidents. This site has very good informational links for both areas: http://www.carcrash.org/index.html The Orthopaedic Connection – Whiplash. Provides a brief overview of the mechanism and treatment for a whiplash injury. http://orthoinfo.aaos.org/fact/thr_report.cfm?Thread_ID=232&topcategory=Neck eMedicine – Whiplash. Another site providing information about whiplash injuries: http://www.emedicinehealth.com/articles/5844-1.asp

Injury Care and Treatment

INJURY CARE AND TREATMENT

Please remember, if you have been injured in an accident, the most important aspect of this matter is not your financial recovery, rather the most important issue is your health and your physical recovery from your injuries. No amount of money will “undo” the injuries you have suffered and your goal should be to do everything you can to limit the long term consequences of your injuries. To that end we suggest the following:

  1. Tell your treating healthcare provider about all pain complaints or problems you believe are related to the incident in question.
  2. Follow the treatment schedule prescribed by your healthcare provider. Remember your doctor wants you to make a good recovery from your injuries and he or she has been trained to get you back to normal as quickly and efficiently as possible. Many times injury victims will begin to feel a little better and decide to quit receiving treatment even though they have not completed their full treatment schedule. Medical studies have clearly shown that incomplete treatment can result in long term physical consequences. As you can understand, the law will not hold an at-fault party responsible for future problems related to the injury if the victim’s own actions contributed to those future problems.
  3. Make sure you tell your doctor of any improvements in your condition and if your condition gets worse, please notify the doctor immediately.
  4. If you cannot keep a scheduled appointment with your healthcare provider, please notify his or her office as soon as possible. Failure to report in advance may result in a N/S (no show) being marked in your chart. Remember, the insurance adjuster will be reviewing your treatment records and a N/S in the file may be used against you.
  5. Follow any restrictions or limitations prescribed by your healthcare provider. We recognize that there is no such thing as a convenient time to be injured; however, if your doctor limits your activities please follow those limitations. Again, the treatment schedule and procedures have been established for the purpose of getting you back to normal as quickly as possible. A few days off of work after an injury may be financially difficult now but it is better than having a lifetime of chronic pain and disability because you didn’t adhere to the restrictions imposed by your healthcare provider. Also, remember more and more insurance companies are using surveillance techniques to determine the true nature of a claimant’s injuries. Surveillance tape of an injury victim failing to follow physical restrictions or limitations can be devastating to the claim.
  6. Full disclosure to your healthcare provider is important. Report prior similar injuries to your doctor. We recognize that on initial in-take forms prior similar injuries are often inadvertently left off or forgotten; however, in the hands of a crafty insurance defense lawyer such an omission can be used against you. Also, remember the insurance company has access to your entire health insurance claim history and may already know about a prior similar injury. As a rule, if you are not sure whether or not it’s important…disclose it and let the doctor decide.