North Carolina Personal Injury Law Advocate - Developments in workers' compensation, social security disability and personal injury

Insurance companies scored a major victory – and a major financial windfall – with legislation that recently passed the N.C. General Assembly.

The new law, part of House Bill 542, will impact everyone who is injured in a car accident that was someone else’s fault. The new law effectively penalizes injured people who have health coverage through private insurance, Medicaid or Medicare by reducing the amount of money they can recover in a personal injury settlement or jury award.

This particular unfair portion of the law is known as the billed versus paid provision and it relates to a complicated rule of evidence used in trials. It’s easiest to understand through an example.

Next time you visit the doctor and pay with insurance, take a look at the statement you receive in the mail from the insurance company. Chances are, the insurance company paid a “negotiated rate” – less than the doctor’s standard rate to settle the bill. What was paid was different than what was billed.

Before H542 became law, defendants in personal injury cases weren’t allowed to tell the jury if the injured person’s health insurance, Medicare or Medicaid picked up part of the tab. But now, the rules have changed – in favor of the insurance companies and against injured people.

When someone causes an accident, they’re liable for the damages and injuries they cause. The responsible party’s level of liability should not change based on whether the injured person has health insurance or not. But that’s exactly what this new law does.

"The Republican-led majority has said with this bill that it's OK for people who hurt others to benefit from their victims,” said Todd Barlow of the N.C. Advocates for Justice. “And they've extended that privilege to insurance companies."

Consider this example:

You and your best friend are driving to lunch when you’re rear-ended by another driver. You both suffer identical neck injuries, requiring months of medical treatment totaling $10,000. In fact, the only difference is you have health insurance and your friend does not.

Your health insurance kicks in to pay $5,000 of your $10,000 in medical bills, leaving you $5,000 to pay.

Because your friend has no health insurance, the other driver’s auto insurance pays her $10,000 to settle her medical claim. Meanwhile, you’re only entitled to a $5,000 settlement, even though your injuries were exactly the same! The auto insurance company just pocketed $5,000 of your money because your health insurance covered half of the bill.

That’s not fair!

What’s really unfair about this new law is that it gives insurance companies an advantage in court. Their attorneys can tell the jury that an injured person had health insurance that helped pay their medical bills, thereby reducing the amount of money that person can collect in court.

But injured people aren’t allowed to tell the jury that the responsible driver has auto insurance that will kick in to cover any damages. As a result, jurors often believe that the other driver will be on the hook and will have to pay out of pocket for any damages. But in nearly every auto accident lawsuit, it’s the insurance company that will end up paying the bill – not the at-fault driver.

This new law is just another example of who really benefits from so-called “tort reform.” The insurance companies continue to take money out of the pockets of innocent victims.

Many of the safety features now standard in cars are there because of the work of attorneys who advocate for consumer safety.

The American Association for Justice has an eye-opening report about how lawsuits filed on behalf of injured people and their families have resulted in such auto safety innovations as air bags,  side impact protection and electronic stability control, to name just a few.

The graphic below shows how lawsuits against automakers have made our vehicles safer. An interactive version of the graphic is available on AAJ's web site. There, when you roll over the numbers, you'll see pop-up explanations of safety improvements with information on the lawsuits that led to them.

We were saddened this week to hear the news of two North Carolina students who were killed in a car accident this week on their way to a college orientation program. One of those who died was Arielle Parker, a promising, talented and much loved young woman from Greensboro.

The students were traveling in a caravan when the accident occurred, with one car following another to a ropes obstacle course near the Wingate University campus. Driver Mishawn Miller, who also died, ran a stop sign and the students' car was hit by an oncoming grain truck. Two other students in Miller's car were injured.

It's not clear from news reports what caused Miller to miss the stop sign, but residents who live near the scene of the accident say it's a dangerous intersection. They've called for better signage and other safety features to prevent future accidents.

One lesson from this tragic story is that we all need to be more attentive drivers. We're not going to speculate about what went on in Miller's car and what might have caused him to miss the stop sign at the intersection.

But we do know from personal experience that it's easy to make mistakes when you're driving as part of a caravan and when you have lots of passengers in the car with you.

Think about the last time you were following someone else to an unfamiliar location. Were you as focused on following safe driving rules and the traffic around you? Or were you more concerned with losing sight of the caravan leader and getting lost?

I'd bet that we've all taken some unnecessary risks -- speeding through a yellow light, perhaps? -- to keep up with another car. So dangerous.

I found an article on convoy safety that is aimed at members of car clubs, but some of the tips are useful to any of us who find ourselves following along behind someone.

• Make sure every driver has directions to where you're going. These days, many drivers have GPS systems in their cars. Or you can print directions from Google Maps.
• Treat stop signs and stop lights as you would if you weren't traveling in a caravan. Come to a complete stop at stop signs and check for oncoming traffic before proceeding through the intersection. Don't try to "make the light" just to keep up with the driver in front of you.
• If you're leading a convoy or caravan, pay attention to the car behind you. Pace your speed to that car's speeding. If the person following you falls behind or off course, find a safe place to pull over so he can catch up.
• Signal all turns early and relentlessly.
• Favor the right (slow) lane when on a four-lane highway.
• Use common sense. Drive as though you are an individual following a planned route and map, rather than a participant of a group. 

Remember, while getting lost isn't fun, it's much better than losing your life or taking someone else's through unsafe and inattentive driving.

State lawmakers are preparing to vote on legislation that will impact anyone who is hurt in a car accident or suffers a personal injury that is someone else’s fault.

North Carolina is one of only four states that allow the doctrine of contributory negligence as a defense in auto accident and other personal injury cases. Contributory negligence is a harsh and outdated way of denying help to people hurt in accidents. Under current law, if you’re even 1 percent responsible for an accident, you CANNOT recover damages from the person who injured you, even if that person is 99 percent at fault.

HB 813 seeks to correct that injustice by switching from contributory negligence to comparative fault. Under the comparative fault doctrine, juries determine how much fault lies with each party in the accident and then award damages based on those percentages. The injured party is allowed to recover only that percentage of damage caused by the other person. Under the much fairer comparative fault standard, an injured person would still be able to collect a percentage of an insurance settlement to cover medical bills and compensate for injuries. Now, these victims get nothing.

It could happen to you or someone you love.

Imagine that you’re driving home after picking up your child from school or coming home from a dinner date with your spouse. You have the green light, but just as you’re crossing through the intersection, another car runs the red light. You see their headlights and you know the other driver isn’t going to stop. But in the nanoseconds leading up to the crash, you don’t swerve and you don’t blow your horn. Because all you can think about is your loved one.

The other driver’s insurance company will argue that because you saw the car coming, and didn’t do anything to prevent the collision, you were partially at fault for the accident. Because of contributory negligence, that’s enough to kill your claim and leave you saddled with medical bills resulting from the crash. All while the other driver’s insurance company gets off scot-free.

How little can 1 percent be? In North Carolina, insurance companies have used contributory negligence to deny auto accident claims because the injured person:

• Failed to honk when passing another vehicle that sideswiped them
• Failed to look both ways when passing through an intersection with a green light and then was T-boned by another car whose driver ran a red light
• Failed to slam on the brakes in the seconds before another car slammed into theirs

Though someone else was clearly at fault in each of these examples, the victims weren’t able to collect insurance payments for their injuries because they were slightly responsible for these accidents. Does that seem fair?

We don’t think so either. That’s why we’re asking you to call, email or write your elected officials in the N.C. Senate and tell them to SUPPORT HB 813! The bill has already been approved by the state House, and the state Senate is expected to vote on the measure during the current session of the North Carolina General Assembly.

It’s very important that you let your state senators know how you feel and how you want them to vote on this bill. The insurance industry is lobbying them aggressively to keep the current doctrine of contributory negligence. They’re twisting the facts, spreading misinformation and spending thousands every week on an advertising campaign aimed at killing HB 813.

You may have heard their radio commercials claiming that automobile insurance rates will go up if the proposed legislation becomes law. That’s simply not true. Insurance lobbyists are distorting the truth to protect their industry's profits at the expense of what's fair for everyone.

FACT:
Before neighboring states South Carolina and Tennessee switched from contributory negligence to comparative fault, auto insurance premiums were much higher there than in North Carolina. Since the change, premiums in those states have increased at a much slower rate than premiums in North Carolina.

The insurance companies also assert that more accident claims will be paid if this new law passes. We certainly hope that’s the case because accident victims in North Carolina have too long been denied fair compensation for their injuries. It’s important to remember that with comparative fault, victims won’t be getting money they don’t deserve. Insurance settlements will be determined by each person’s level of fault.

Victims finally will be getting the justice they deserve after more than a century of unfairness under contributory negligence, a standard designed to protect insurers at the expense of suffering people.

Finally, we have a chance to protect the victims of personal injuries.

Please, contact your elected officials today and ask them to support HB 813. Tell them that current law is too harsh and needs to be reformed. You’ll find contact information for North Carolina’s state senators at the end of this letter. You can learn more about the fight for fair justice in North Carolina by visiting www.fairjusticenc.com.

Thanks for your help in passing this much-needed reform that protects injured people. This is a law that could impact all of us

Given yesterday's post about the dangers of distracted driving, specifically texting while driving, I thought it would be a good time to highlight VIP for a VIP, an organization that Deuterman Law Group supports.

The Guilford County organization uses dramatic crash re-enactments to educate teens about safe driving.

VIP for a VIP (which is short for Vehicle Injury Prevention for a Very Important Person) was founded in 1998 by two off-duty Greensboro firefighters, Steve Zimmerman and Larry Cockman came upon a fatal accident involving a teen driver. In the days following the accident, the men struggled with the senseless loss they had witnessed and decided to develop a program that would bringing the reality of a fatal crash to high school students.

You can check out the group's schedule to see if your school or a school near you will be staging a VIP for a VIP crash reenactment. If not, we encourage you to contact VIP for a VIP on behalf of your school because we firmly believe these demonstrations save lives. You can also make a donation online, which helps fund reenactments at schools throughout North Carolina.