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  • David Omer

Personal Injury Basics


Free legal advice; don't do this.

Personal injury might seem basic enough at first blush; someone messed up, you got hurt as a result, and the person who messed up is liable. Simple, right?


Well, not necessarily. While I do find the occasional straightforward case out there, the "personal injury vehicle" has a lot of moving parts, and those parts all have to exist (and function!) in order for the car to drive properly. If a part is missing or defective, it could render the entire claim worthless. I couldn't tell you the number of times I've sat in a consult and gotten excited about a really good claim, only to notice that one little detail, that one tiny little red flag that sinks the ship. It's frustrating, and it happens all the time. I'd say conservatively that two thirds of the claims I look at are rendered non-compensable for some reason that probably seems innocuous to the casual observer. All those little red flags - things like overtreatment, overdisclosure, and contributory negligence - are being covered in a forthcoming series of articles (stay tuned!), but for now, let's focus on the things that do make your personal injury claim work.


I like to look at a good personal injury claim as a stool with three legs. You need all three for the stool to be useful for its intended purpose; if one of the legs is weak or missing, then all you really have is a heap of firewood. The three legs that you need are (i) liability, (ii) damages, and (iii) coverage. Let's take a closer look.


Liability


Your claim starts with liability. That means that you can assign fault for your personal injury to the negligence of another person. Remember that you can't claim liability unless you can prove that negligence occurred; (i) a duty, (ii) a breach, (iii) damages, and (iv) causation. Remember that North Carolina has a couple of funny little irregularities, like contributory negligence and the sudden emergency doctrine (both will be covered in future articles), that can gum up the works. But generally, if you can prove the negligence of the at-fault party, then liability shouldn't be too much of a problem.


Damages


Even if you have clear liability, you still don't have a case if you lack damages. For our purposes, "damages" means any expense, loss, or injury that you've suffered or incurred as a direct and proximate result of the other party's negligence. Keep in mind that damages are already a requirement just to have actionable negligence in the first place. If Sally is doing her makeup in the mirror while she's driving, then she's technically negligent. But if she doesn't hit anybody or cause any actual harm, then her negligence isn't actionable. If people could drag other drivers into court for every single instance of negligence, even if there weren't harmed thereby, everybody would be tearing their hair out and the judicial system would shut down completely. So in a personal injury setting, negligence/liability is just how you get your foot in the door. You need damages once you get in; think medical expenses, pain and suffering, lost wages, et cetera.


This will be covered in a future article as well, but remember that damages can take a couple of forms; special damages and general damages. Special damages are the black-and-white, objective amounts that you can put on paper, such as medical bills and copays. General damages are the more subjective amounts, like pain and suffering, that often cause the most contention between claimants and insurance carriers.


Coverage


The last (and often most frustrating) leg on the PI stool is coverage. Why is it so frustrating? Well, proving liability and damages is only the front end of the process. None of it matters if there isn't a source of funds from which you can recover. When insurance coverage isn't available, your only recourse is to recover from the individual defendant, right? But the average Joe doesn't have a ton of assets. The assets that he does have are probably subject to judgment exemptions (which, you guessed it, I'll write about at some point down the road). You probably can't levy a judgment against his house, his car, his dog, or his TV, and I can pretty much guarantee you he doesn't have the kind of cash that you need to make you whole. Even if he does, enforcement of a judgment can very easily turn into a nightmare. While uninsured and underinsured motorist coverages really help to mitigate against unrecoverable losses, I do run into situations every now and again where an otherwise solid claim fails because of a lack of coverage. It's frustrating and often heartbreaking, but it does happen.


I know that this is a very broad-strokes article. There'll be more detail coming down the pipe in the coming weeks. Drive safe, and don't be like the young lady in the picture; keep those hands on the wheel!

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