LIGHTNING
STRIKES TWICE
HOW TO AVOID BECOMING A VICTIM OF
PERSONAL INJURY INSURANCE COMPANIES
Eric A. Richardson, Esquire Oxner Thomas + Permar, pllc
Greensboro – Winston-Salem – Asheboro – Burlington Raleigh – Charlotte – Fayetteville – Hickory – Wilmington
www.otplaw.com 1-866-OTP-Law1 (1-866-687-5291)
© 2010 Oxner Thomas + Permar, pllc and Eric A. Richardson
All rights reserved including the right of reproduction in whole or in part in any form. No part of this book may be reproduced in any form without permission in writing from the authors, except in the case of brief quotations embodied in critical articles or reviews.
ISBN 978-0-9796677-2-5
The Personal Injury Team at Oxner, Thomas +
Permar
The Personal Injury Team is made up of attorneys and legal assis-tants dedicated to efficient and effective representation of people with serious personal injury claims. We are committed to using technology, education and our desire for justice in achieving suc-cessful results for our clients. Along with every member of the law firm, we take every claim seriously, and never accept representation in more cases than we can handle. Please see our website at www.otplaw.com for more materials and information about the personal injury team.
TABLE OF CONTENTS
1 Ch. 1: Why You Should Read This Book 5 Ch. 2: The Injury Case
11 Ch. 3: Representation
15 Ch. 4: How We Handle a Personal Injury Case? 21 Ch. 5: Seven Deadly Sins That Can Wreck Your Case 25 Epilogue
A1 N.C. Gen. Stat. § 135-45.14(g). Coordination of benefits. A2 § 135-45.15. Liability of third person; right of subrogation;
right of first recovery.
B1 § 97-10.2. Rights under Article not affected by liability of third party; rights and remedies against third parties. C1 § 44-49 Lien created; applicable to persons non sui juris.
D1 § 20-279.21. "Motor vehicle liability policy" defined. E1 Release
F1 § 28A-18-2 Death by wrongful act of another; recovery not assets.
G1 Form MCIC-T-1
Chapter 1
WHY YOU SHOULD READ THIS BOOK
1. DON’T LET LIGHTNING STRIKE TWICE
The doorbell rings. It’s one day after you were injured in a seri-ous car wreck. Your back is aching, head ringing and maybe you have a broken bone or two. You open the door and are greeted by a representative from the insurance company for the driver that caused your injuries. What a relief. You think to yourself, “someone is here to help me.”
After a few minutes of conversation, you learn that your friend-ly neighborhood insurance adjuster wants to take a statement from you. You discuss the case, and soon the adjuster is offering you a small sum of money to settle your case. The adjuster may even tell you that if you don’t settle now, the same offer may not be available later. You’ve already been the victim of someone else’s negligence. Be aware. Lightning is about to strike twice.
It is no secret that insurance companies take advantage of their superior knowledge about the claims process. As a part of their usual business practices, insurance claims adjusters approach accident vic-tims and their families immediately following an accident. This occurs often before the victims have a chance to talk to an attorney. You may not need an attorney to represent you in your case but at this stage of the claim, you are at a disadvantage.
That’s right, I said you may not need an attorney.
What you need is information. Accurate, reliable and trustwor-thy information will assist you in making decisions about your case. That is why I want you to read this book before you make your next move. Just like the insurance adjuster who is well-trained, you
should be armed with this important information, right from the beginning of your claim. I wrote this book so that you can be informed, today.
I also wrote this book for another reason. I am troubled by lawyers who make promises that they cannot keep simply because they have too many cases, or they see your injury as just another way to make money.
Let me ask you a question. Would you hire a lawyer without meeting him or her? Of course not. If you’re reading this, and you are pursuing a case but have never met your lawyer, then this book is probably not for you. If you don’t think that you can pick up the telephone and actually speak to your lawyer, then you may not understand what I am talking about because you don’t have an expectation that you should be involved in your case.
It is true that I cannot take every call, and when I cannot, I have very talented employees to assist you until I can address your concerns. But if I ever get too busy to speak with my clients, then I no longer deserve their trust. And here we hit the core of the attorney client relationship: Trust.
If you don’t know your attorney, how can you trust him or her? If the last time you heard from your attorney was when you signed his or her fee agreement, do you really have a relationship? For example, most attorneys require you to make an appointment so that they can discuss your case with you. I believe that you should be able to have this information, right now, and without any pressure. The hiring of an attorney to represent you is a very important step that should not be taken lightly.
The purpose of this book is to share a great deal of information with you about injury claims. This method of sharing information saves both of us time. There is a lot of information in this book, and it saves me the hours of time that it would take each day just to talk to all of the new potential clients who call. I cannot and will not accept every case, and frankly, each year we turn down good cases that simply do not meet our case selection criteria.
So, rather than rush you through a phone conversation, writing this book gives you a chance to get valuable information without any pressure from a lawyer. That may help you make decisions about what steps to take with your case. Even if I do not accept your case, I would like you to be educated about the process so that you don’t fall victim to insurance companies.
2. LET’S SET THE STAGE
When you were injured, you were thrust into a conflict situa-tion. You did not choose to be there, and there is a good chance that you encountered events similar to those I described earlier. The insurance company of the person who hurt you assigns an adjuster who is trained in ways to limit the amount you are paid for your injuries. That is their job. It’s plain and simple because if they pay less in claims, their company makes more money.
But before you were hurt, the insurance adjuster began planning to limit your recovery. The insurance industry spends hundreds of millions of dollars to inflame the public against you and me. Their goal is to convince the public, who could be members of your jury, that people involved in personal injury lawsuits are greedy, good-for-nothings looking for a free ride on a frivolous claim.
Frivolous lawsuits should be dealt with swiftly, and I don’t rep-resent people with such claims, nor do any reputable attorneys. But you wouldn’t know that from reading the newspaper or watching the television. What the insurance company is doing is starting with the “end” in mind. They understand that their ability to limit reasonable settlement offers is based, in large part, on their ability to limit rea-sonable jury verdicts. They understand that if they can reduce jury verdicts, then they can limit the settlement offers made before trial. So what can we do? We do the same thing. We start every case
preparing for the day that we will present it to a jury. When I
take a case, I expect that I will go to trial if I cannot receive a settle-ment that is fair and reasonable to my client. I do not abandon my client when the insurance company is unreasonable – I expect them to be unreasonable. I’m not surprised when they offer a fraction of the value of the case. Nor do I get mad or irritated. I simply contin-ue my trial preparations.
Does that mean that I take every case to trial? No. Many cases do resolve prior to trial for good reasons. And I firmly believe that it’s this approach – preparing to take every case to trial – that actu-ally brings about better settlement options for my clients.
that applies to each and every one. Once you understand this fact and you are educated about your case, you have every right to accept a fair and reasonable settlement offer before trial. As a matter of fact, taking a reasonable offer can be the wisest course of action because there is no certainty in a jury trial. As an attorney, I work with my clients to make sure that they know what is reasonable and what is ridiculous so that they can make a good decision. My goal is to make sure that you do not become victimized by the insurance company as well as the insured.
3. THIS BOOK IS NOT LEGAL ADVICE
I want to see you succeed. You get to define success in your case. However, at this point, I am not your attorney so I cannot advise you. Because your case is complicated and has many components that make it different from other cases, this book is not intended as legal advice about your case. I cannot give legal advice in this book. I can offer suggestions and identify traps, but please do not construe anything in this book to be legal advice until you have agreed to hire me AND I have agreed, in writing, to accept your case.
Chapter 2
THE INJURY CASE
It’s important before we go any further that you understand the ins and outs of an injury case. Although you might think that you have a personal injury case, it’s possible that you have a workers’ com-pensation claim or a medical malpractice claim or no claim at all!
The following points will give you a good understanding of what is involved in an injury case and what to look for as you begin to think about what to do next.
1. DO YOU HAVE AN INJURY CASE?
When you hear “personal injury case” or “wrongful death case” you probably have certain preconceived notions about the meaning of those phrases. I will not assume you know what I am talking about. Instead, I will tell you what I do.
First and foremost, I represent people. All injury cases are prima-rily about one thing – people. They involve suffering, life changes, fear, anxiety, pain – all things that affect people. But because of the complicated legal process, getting relief for people is not easy.
Injury cases, by and large, fall under the category of “negligence” law. A personal injury, automobile accident or wrongful death case is any type of claim where a person has been injured or killed due to someone else’s carelessness.
then you don’t have a personal injury case, but you may have a prop-erty damage case. We do not normally handle propprop-erty damage cases. If both you and your car have suffered an injury, then you have both a personal injury and a property damage claim. We represent people in the personal injury parts of those cases.
If someone’s negligence causes the death of another, then this is called a “wrongful death” claim. The law of each state or jurisdiction differs significantly regarding what can be recovered in a wrongful death case (see F1). You need an attorney who understands the spe-cialized wrongful death laws. In North Carolina there are even differ-ent time periods, called statutes of limitations, for initiating wrong-ful death cases versus personal injury cases.
2. WHAT ABOUT OTHER TYPES OF INJURY CASES?
Whenever you are hurt by another’s negligence, including that of a professional or a builder or manufacturer or a store merchant, you have a “personal injury” claim. Products liability (injury by harmful product), medical malpractice (injury by a doctor, hospital or other healthcare provider), slip-and-fall (injury because someone did not take care of a walkway) are all subtypes of personal injury cases. I do not try to handle all of these types of cases. For example, I do not handle products liability cases and rarely do I represent people injured by a doctor’s negligence. However, there are plenty of lawyers who handle these cases, and if we don’t handle your type of injury case, we will be happy to help you find a lawyer at no cost to you.
3. WHAT MUST BE PROVEN TO WIN A CASE?
The law does not demand compensation for every injury. You must prove that someone else was negligent or careless and that it was their negligence or carelessness which caused your injury. If you have suffered an unfortunate accident that is no one else’s fault, or if you do not sue the right person, then the law says that you will not recov-er any money. And this is a critical part of precov-ersonal injury practice because what most people do not realize is that in every case, you will
have an opponent trying to prove you wrong. Very talented attorneys and experts will be fighting to keep you from receiving fair compen-sation for your injury.
In North Carolina, there is one additional factor that we must overcome: You cannot have been at fault in any way for your
injury. This is known as the law of Contributory Negligence. This
means that if the “other guy” was 99 percent at fault and you were 1 percent at fault, then you cannot recover anything.
For example, if another driver runs a red light and hits your car, it seems obvious that it is the other driver’s fault. But, in North Carolina, all drivers have to make sure that an intersection is clear before they enter it – even if they have the green light! So if you did not look both ways before starting to move into the intersection on a green light, you could be found to be contributorily negligent. Using a cell phone or riding as a passenger with someone that you know is an unsafe driver are other possible examples of contributory negligence.
Sound fair? Hardly! It is a harsh law, but that’s the way it is in North Carolina. Your attorney needs to understand what contributo-ry negligence means and how to defend against it. Before we accept your case, we must be confident that you were not at fault in any way for your accident.
4. BEWARE OF THE ERISA “MONSTER” AND LIENS ON YOUR SETTLEMENT
If your medical bills for treatment of your injuries were paid by a health insurance policy, that insurance company or plan may want you to reimburse it out of your personal injury recovery.
In this situation, your “health insurance” acts less like insurance and more like a “loan.” North Carolina state law prohibits subrogation (seeking to be paid back) of insurance payments. However, in many cases North Carolina state law is over-ridden by other states laws or in some instances a federal law called ERISA (The Employee Retirement Income Security Act of 1974) which nullifies the state rules and allows your health insurer to be reimbursed. When these laws create liens on your settlement, you will be required to pay them from your settlement proceeds. For example, the North Carolina General Assembly created a
lien for the payment of personal injury proceeds from employees and dependents of the North Carolina State Employees Health Plan. (See A1 & A2). Your attorney must understand the implications of ERISA and other lien laws on your case. The failure to do so could have lasting effects on you.
Also, if your injury occurred while you were on the job, then you may be receiving workers’ compensation benefits. If you have a per-sonal injury case and receive “third-party” proceeds from the same incident that entited you to receive workers’ compensation benefits, your employer (or the workers’ compenstation insurer paying bene-fits) has the right to be paid back out of your personal injury settle-ment. (See B1). Or, your medical providers can assert a lien, in some circumstances, on your recovery if your medical bills are still unpaid. (See C1). Your attorney must understand these situations and be experienced in handling liens in a manner that is to your best advan-tage. An experienced attorney may be able to negotiate such liens to help your recovery.
5. YOU MUST KNOW THE RIGHT PARTY TO SUE
Sometimes, you may be injured by the carelessness of someone else, but that person may not be the only one that you sue. It is very important to know information about the potential defendants in a case. For example, there are laws that limit or prevent recoveries against government agencies. This situation is called governmental or sovereign immunity. In such situations, you may not be able to recov-er at all. Or, threcov-ere may be only one specific way to obtain a recovrecov-ery against the State.
It is very important to know if the person who caused your injuries is a part of a state, county or local government. The North Carolina Industrial Commission (NCIC) has jurisdiction over a number of these claims. When that is the case, an entirely different process and procedure must be followed. For example, to initiate the case, you don’t file a lawsuit in state court; you file an affidavit with the NCIC. (See G1). Your attorney must be experienced in state tort claims and cases involving governmental/ sovereign immunity.
6. OTHER TYPES OF INSURANCE COVERAGE
In many instances, there can be multiple types of insurance cov-erage available to help compensate you for your recovery. For exam-ple, if you were hit by a negligent driver with little or no insurance, you may find that your injuries exceed that driver’s coverage. However, you may own an insurance policy that offers “uninsured or underinsured motorist” coverage. This is insurance that covers you in the event that you are hit by a driver that either does not have insur-ance at all, or does not carry enough insurinsur-ance to cover your dam-ages. In North Carolina the law only requires $30,000 of collision coverage (see D1). In a serious collision, this minimum coverage will not go very far. Other sources of coverage include medical payments policies, excess policies, umbrella policies and other family members living in the same residence. In addition, when more than one poli-cy is being considered, you may be able to “stack” these policies on top of one another to maximize your available coverage. The law in this area can be very complex and requires an attorney who is experi-enced in dealing with these types of cases.
7. RELEASING YOUR CLAIM
As part of almost every settlement, the insurance company will require that you sign a release of their insured. Often this document is quite broad. Attached is a sample (see E1). Your attorney needs to understand the significance of such a document. Particularly in regard to cases where multiple insurance policies are available or multiple negligent parties exist, because certain releases completely terminate your case and cause you to lose the ability to seek recovery from other people or policies. You should not be signing a release if you do not understand its effect on your case.
8. THE LEGAL PROCESS IN PERSONAL INJURY CASES
In North Carolina, you generally have three years from the date of your injury to file a lawsuit. If a death has occured, it’s two years. However, you should avoid waiting too long to do so. Many clients desire to resolve their cases prior to filing a lawsuit. When my clients desire pre-suit settlement, we will make a good faith effort to settle their claim directly with an insurance company. However, a number of insurance companies flat-out refuse to make reasonable pre-suit set-tlement offers. In that case, we must file a lawsuit to get the case in front of a jury.
Once the lawsuit is filed, both sides engage in the legal process called discovery. Each party is allowed to investigate what the other side is going to say at trial. The defendant will be permitted access to your medical and work history including your income records. You may have to give a deposition under oath, and you may be required to submit to a medical examination by a physician of the defendant's choosing.
It may seem unfair that the insurance company and its attorney can dig into your private past. But remember, once you choose to file a lawsuit, you are putting your past medical history and work record into question, and the attorneys for the insurance company will do their job!
The defendant is also subject to discovery. He will answer writ-ten and oral questions about his own background, and he will have to give sworn testimony about the incident at issue.
In my opinion, the secret to obtaining fair and just compensa-tion for your injury claim comes from hard work. There is no magic formula. My approach is to know you and the facts of your case very well while I use my experience and education in the law to work as hard as I can on your behalf. You should never settle for anything less.
Chapter 3
REPRESENTATION
Now that you have a better understanding of personal injury cases, let’s look at those things to remember when choosing if you need an attorney and if you do, what attorney would be right for you.
1. DO YOU NEED AN ATTORNEY TO SETTLE YOUR CASE?
Coming from an attorney, this might surprise you to hear from me, but you definitely do not need an attorney for every injury case. In fact, our office does not normally accept auto collision cases where there’s little or no property damage or the injuries are minor. Why not? We attempt to treat each and every case we handle with dignity and respect. This commitment requires a fair amount of time and dedication.
In the small case, the attorney fee and costs for representation might leave little or nothing for you after your medical bills are paid, and we don’t believe that would be fair to you. Nor do we desire to decrease our commitment to any case we accept. However, one exception to this policy is for cases where we believe we can get our attorney fee paid by the insurance company. This is rare, but some smaller cases have that option.
In our experience small cases can be handled by individuals with decent success. Of course, the challenge that you run into is decid-ing whether your case is small or not. It’s always best to discuss your case with a competent attorney before closing any of your options.
2. HOW DO I FIND A QUALIFIED PERSONAL INJURY ATTORNEY?
Choosing an attorney to represent you is an important but intimidating task. The decision certainly should not be made on the basis of advertising alone. The Yellow Pages are filled with ads, and anyone can buy a slick commercial. You shouldn’t even hire me until you trust that I can do a good job in your case. You should consid-er reputation, professionalism and the impression you get from meeting with the attorney and his or her staff.
Other things to keep in mind include:
A. The legal field has become so specialized that it is difficult to
practice many areas of law. An attorney with a general practice often has distractions from other types of cases. Try to find an attorney whose practice is primarily made up of assisting injured people. In North Carolina, an attorney cannot say that they “specialize” in a particular area of law until they pass an exam. However, even if they don’t take an exam, attorneys can limit their practice of law to one particular area.
B. Get a referral from an attorney that you know. He or she will
probably know someone who does concentrate in your area of need.
C. The Yellow Pages can actually be a good source of names.
However, some people do not advertise in the Yellow Pages because they get so many referrals from others by word of mouth. Additionally, large Yellow Page adds typically attract a lot of callers, so be sure that the attorney you hire is selective enough with his or her cases that your important case does not become just one more file in the pile.
D. The North Carolina Bar Association has a lawyer referral
service. Understand that lawyers have signed up and paid a fee to be listed in certain specialties. Their names come up on a rotating basis. This is another good source for an initial appointment, but be
sure that the attorney referred to you by the Bar Association is the best fit for you and your case. The ideas in this book should give you some good questions for your initial attorney interview.
E. Interview several attorneys and ask each attorney if they have
information just like this book and/or a web site so that you can find out more about qualifications, experience and their method of han-dling a case before you walk in the door. The more you know about an attorney the better you can trust that he or she can do a good job in getting you the results that you deserve.
F. Be careful of any attorney who rushes you to sign a
contin-gent fee agreement. You should have the opportunity to fully evalu-ate any fee agreement and understand it.
G. Beware of any attorney who contacts you in writing just after
you have had an accident for the sole purpose of soliciting your claim. If you are contacted “cold,” it should be to provide you free informa-tion that you can study in your own home on your own time.
H. Beware of an attorney who has a list of doctors he wants to
refer you to. Referrals for medical treatment should come from your personal physician.
3. WHAT SHOULD I LOOK FOR IN AN ATTORNEY? Experience – Obviously, the longer an attorney has been
prac-ticing a particular area of the law, the more he or she will encounter. This doesn’t mean that age equates with the best lawyers, but expe-rience only comes with years of practice. Expeexpe-rience is a big factor in most cases.
Respect in the legal community – Does the attorney enjoy a
good reputation among his or her peers?
Membership in trial lawyer associations – In our area, find a
This demonstrates that the attorney is committed to helping people navigate the legal process.
Licensing – Make sure that the attorney you select is properly
licensed for the state in which you were injured. An attorney in another state cannot handle a lawsuit in North Carolina alone unless they are licensed here.
Good Communication – Understand how your attorney will
keep you informed about the progress of the case. In my practice, we generally send a copy of every piece of correspondence and pleading in the case to the client. We also take time to explain the “pace” of the case and in what time frames the client can expect activity to take place. Our clients are invited to call or email anytime. If I can’t take your call or call you back right away, my assistants will help you set up a specific “telephone conference” appointment. You are also invited to make an appointment to come in at a time that is conven-ient to you. I think that you should be well informed on the progress of your case. Make sure the lawyer that you choose feels the same way.
Staff – Make sure that you and your attorney have a firm
under-standing as to who will be handling your case. There are a lot of things that go on with a case that do not require the senior attorney’s attention, and it’s reasonable that those things be handled by other people in the firm. On the other hand, if you are hiring an attorney because of his or her trial skills, make sure that that person is going to be trying your case for you. You don’t want to hire an attorney based on experience only to find that someone right out of law school will be your trial lawyer. Also, be clear on what types of things will be handled by the firm’s paralegals and legal assistants. Again, in some cases, it’s reasonable that the paralegals and legal assistants complete the day-to-day tasks so that your attorney can focus on the important aspects of your case. Just make sure that your attorney’s staff isn’t also doing the important stuff!
Chapter 4
HOW WE HANDLE
A PERSONAL INJURY CASE?
Every law firm handles cases a little differently. As you begin your relationship with your attorney, talk to him or her about what to expect. This information is very important so that you are pre-pared for each step in the process. We know that this is probably your first lawsuit so we take the time to explain the process to you. We find that this not only helps you prepare, but it also helps to alle-viate some of the stress that can come with a lawsuit.
1. WE START FROM THE BEGINNING OF YOUR CASE PREPARING FOR TRIAL.
Here are some of the tasks we may be called on to do in your case. Remember that each case is different, and that not all of these tasks will be required in every case. They are:
» Initial interview with the client. This helps us understand the particulars in your case. It also provides us with the background information that we need to advise you on your next steps.
» Educate client about personal injury claims. This allows you to understand your case in the context of the law. Some cases might sound good when you are talking to your friends, but might be com-pletely different once examined by an attorney.
» Gather documentary evidence including police accident reports, medical records and bills. This is information that the other side will have. We need to make sure that we have every bit of information that could change the facts in your case. Attached is a copy of Crash Report Form DMV-349 and the codes used to explain the investigating offi-cer’s opinions and observations about the crash scene (see H1). As you can see, there is a wealth of potential information packed into this short form.
» Analyze the client’s insurance policy to see whether there are any coverages which the client has that may pay all or a portion of the medical bills while the claim is pending. By getting your medical bills paid up front, we are able to take some of the financial pressure off of you so that you can focus on getting the best outcome possible for your case. If you are financially strained, there will be a conflict between getting the best outcome and paying the bills that are due now. Sometimes there is little that we can do to relieve this strain dur-ing your case. The insurance company counts on that pressure as part of their “delay and pay” strategy.
» Interview known witnesses. If others witnessed your accident, your case will be much stronger to a jury. In addition, people who observe your daily pain and suffering should be identified.
» Collect other evidence, such as photographs of the accident scene and injuries. Also notify parties and others of the need to pre-serve evidence that is not in mine or my client’s control.
» Analyze the legal issues, such as contributory negligence and assumption of the risk. This involves looking at past cases and exam-ining the particular circumstances in your case. In North Carolina (and every other state), the law not only includes those laws passed by the legislature but also decisions from judges made as they have inter-preted the law.
» Talk to the client’s physicians and/or obtain written reports from them to fully understand the client’s condition including the prospect of permanent injuries.
» Analyze the client’s health insurance policy or welfare benefit plan to ascertain whether any money they spent to pay bills must be repaid. Again, we want to make sure that you are not financially bur-dened by your medical bills.
» Analyze the validity of any liens on the case. Doctors, insur-ance companies, welfare benefit plans and employers may assert that they are entitled to all or part of the client’s recovery.
» Contact the insurance company to put them on notice of the claim, if this has not already been done, and our representation.
» Decide with the client whether an attempt will be made to negotiate the case with the insurance company or whether a suit should be filed. Sometimes the insurance company would prefer to settle the case rather than go to trial. While this might save you some headaches, insurance companies are not looking out for your best interest – that’s not their job. You have to be careful and understand your options when negotiating with an insurance company.
» If a suit is filed, prepare the client, witnesses and healthcare providers for depositions. Depositions are interviews taken under oath. These are often done in an attorney’s office with both attorneys present. Just like in trial, both sides will be able to ask questions of the person being deposed.
» Prepare written questions and take the deposition of the defen-dant and other witnesses. It is important that we know what the defendant and other witnesses are going to say should the case go to trial. While a witness might say one thing immediately after an acci-dent, that story might shift under oath. Depositions and written questions allow both sides the opportunity to understand the facts in the case.
» Produce to the defendant all of the pertinent data for the claim, such as medical bills, medical records, and tax returns. We are required by law to provide this information to all parties in the case. This might seem invasive, but this is an important step in the legal process.
» Go to court to set a trial date or argue pre-trial motions.
» Prepare the client and witnesses for trial. Trial is very different from what appears on television. We work hard to make sure that our clients and witnesses know what to expect so that the experience is less stressful.
» Organize and prepare medical and demonstrative exhibits for trial. In a trial, there are lots of exhibits or pieces of information that must be prepared to show to the jury and / or judge.
» Prepare for mediation and/or arbitration. The court typically orders some sort of mediation prior to trial. This is a chance for both sides to discuss their dispute and to determine if they can reach an agreement prior to going to trial. While many cases are settled at this phase, it’s important that the other side understand that you are will-ing to carry the case to trial if needed.
» File briefs and motions with the court to eliminate surprises at trial. Briefs and motions set up the “ground rules” for the trial. The judge will make decisions based on the briefs and motions on issues such as what types of information can be shared with a jury.
» Take the case to trial with a jury or judge.
» Analyze the jury’s verdict to determine if either side has good grounds to appeal the case. Although every case in the news has an appeal, in real life, not every case goes to appeal. After the trial, we look at the facts to determine if either side has grounds for an appeal.
2. WHY YOU SHOULD HIRE US
We limit our representation to seriously injured people. Therefore, we understand that the outcome of your case will have a major impact on your life. Because the stakes are so high, our firm prepares our cases for success. This approach means that our clients, when possible, are involved in the preparation of the case. We see to it that our clients are informed about the law that will affect their cases. (For many of you, this book is the first step in that education.) And we count on their assistance with the file development. Instead of trying to manage hundreds of cases at a time, we carefully select the kind and number of cases that we will accept at any one time. This approach insures that your case will be significant to us and that your case will receive the attention that it deserves.
There are many attorneys who advertise for personal injury cases. Unfortunately, some of these attorneys have so many small cases in their offices that no case gets their personal attention. Others have no real intention of trying your case themselves, and if the case cannot be settled with the insurance company, they will refer the case to another attorney for trial.
Our clients get personal attention because we are very selective in the cases that we take. We decline hundreds of cases a year in order to devote personal, careful attention to those that we accept. There are many attorneys who do mass advertising and accept small cases, and we will be happy to refer you to such attorneys if that is your desire. Unlike some other attorneys, we never charge a referral fee for getting you into the hands of someone who can help you. And finally, regardless of whether we take your case, we offer you the opportunity to receive free educational materials to guide you through the claims process.
We see it as our responsibility to help everyone who is injured even if that means referring your case to someone else.
3. WHAT CASES DO WE NOT ACCEPT?
Due to the very high volume of calls and referrals from other attor-neys that we receive, I have found that the only way to provide person-al service is to decline those cases that do not meet our strict criteria.
Therefore, we generally do not accept the following types of cases:
» Cases with no clear, objective evidence of injury or treatment with a medical professional.
» Cases where the statute of limitations will soon run. The law sets a limit on how long you can wait before you file a lawsuit; that’s called the statute of limitations. I like to have at least six months before that deadline runs to adequately investigate and evaluate your claim.
» Cases with contributory negligence. I will not represent you if you were in any way at fault in the accident. Remember that in North Carolina, the jury may find against you if you were even one percent at fault. Therefore, if there is any substantial evidence that your injury was caused by your own negligence, we will not accept your case.
» Cases previously filed by other attorneys. If your lawsuit has already been filed, I will not normally represent you. I like to do things my way. If you, or another attorney has already filed the case, that’s fine. The same goes if your attorney has taken a voluntary dis-missal of your case. In North Carolina, cases can be dismissed vol-untarily once. If the dismissal is “without prejudice” then you have one year to re-file your case. I do not like to be rushed by deadlines, so ordinarily I will not represent you if this has happened.
I evaluate these situations on a case-by-case basis.
4. WELL, ARE THERE ANY CASES LEFT?
Yes, there are, and that’s just the point. We accept a limited number of cases each year so that we can devote ourselves to each and every case.
I represent clients who have valid claims. When I devote my time and resources to representing only legitimate claimants with good claims, I am able to do my best work. I have found that get-ting “bogged down” in lots of little cases, each with a “special prob-lem,” is not good for my law practice.
Chapter 5
SEVEN DEADLY SINS
THAT CAN WRECK YOUR CASE
Unfortunately, it is possible for you to wreck your personal injury claim. The law can be very tricky, and sometimes by trying to do the right thing, you actually harm your case. Below are seven traps to avoid when you have a personal injury claim.
1. THE CLIENT IS REFERRED FOR TREATMENT BY SOMEONE OTHER THAN A DOCTOR
In our anti-plaintiff climate, insurance companies, and in turn, jurors are highly suspicious of lawyers who repeatedly refer their clients to certain doctors. While the client may not know how many of that lawyer’s clients have been referred in the last 12 months to a particular doctor, you can bet that the insurance company knows it or will find out about it. How credible do you think that doctor’s testimony will be when the jury finds out that he treated 50 patients from the same lawyer last year?
Similarly, when a client discontinues treatment without expla-nation and begins treatment with a new physician, suspicion arises. We encourage our clients to get the treatment they need to recover from their injuries, but due to the significance placed on referrals, we recommend that our clients seek referral from their treating physi-cian if at all possible. If your treating physiphysi-cian makes a referral, it is important to follow up on that referral and actually see the doctor
or specialist. Long gaps without treatment can cause problems in your case.
Finally, it is best to seek treatment from a medical doctor first, before beginning any chiropractic or other type of treatment. Now, I am not trying to belittle chiropractors or holistic doctors in any way. But the truth is, insurance companies do often look at chiro-practic treatment with a scornful eye. The same is true for any non-mainstream medical treatment. So, if you decide to go to a massage therapist before you see a doctor, don’t be surprised if the insurance company refuses to pay the bill.
As you might guess, our best advice is to follow the advice of your doctor. If he or she gives you a course of treatment that will make you better, that’s exactly what you should do. If you feel that your doctor is not giving you the best treatment, you may consider obtaining a second opinion from another medical doctor. But be careful. You don’t want to be perceived as shopping around for the medical opinion that best fits a legal case.
2. HIDING PAST ACCIDENTS FROM YOUR ATTORNEY
Once you begin a case, the other side will be interested in know-ing how many past accidents you have been in. The reality is that they probably already know the answer or have easy access to that information. All insurance companies subscribe to insurance data-bases, and often the only reason they ask you this question is to test your credibility. They will also check your driving record and inal history. If you have been in other accidents or you have a crim-inal history, your attorney can investigate this and make a determi-nation as to whether this is a valid problem in your case or not. If you do not tell your lawyer, however, and you misrepresent your past history to this insurance company, then it is almost guaranteed that you will lose your case.
3. HIDING OTHER INJURIES
It goes without saying that you should be upfront and honest with your attorney about any injuries that occurred before or after this incident. Again, if you saw a doctor or other healthcare provider, then there is a record in existence that the insurance company will find. You will not be able to hide it, but your attorney can deal with this if he knows about it. Pre-existing conditions do not mean that you cannot have a valid claim. An experienced attorney knows how to handle the situation where you may have had a prior injury or medical condition. However, the worst thing you can do is try to hide it! If you lie about it, and the insurance company finds out, then your case is over.
4. NOT HAVING ACCURATE TAX RETURNS
In many cases, a claimant will have lost income because of the injury. You will only be able to claim that lost income if you can prove it. To do that, your past tax returns must be pristine. You don’t want to risk going to jail by claiming a loss of income, only to have your past tax returns show that you never claimed that income for tax pur-poses. Again, being honest with your attorney is the only way to be because he or she can deal with the problem if they know about it.
5. MISREPRESENTING YOUR ACTIVITY LEVEL
Insurance companies routinely hire private investigators to con-duct videotape surveillance. If you claim that you cannot run, climb or stoop, and you get caught on videotape jogging to the bowling alley for a quick game, you can forget about your claim. There is no explanation (other than “you got my brother, not me”) that can overcome the eye of the camera.
6. NOT OBTAINING PHOTOGRAPHS
The best time to document your injuries or property damage is right after it occurs. Remember, insurance companies want jurors to believe that your injuries and damages were not that severe. You’ve probably heard the phrase “a picture is worth a thousand words.” In your case, pictures may go a long way in convincing a jury by show-ing just what your injuries looked like or how much damage was done to your car.
7. SIGNING DOCUMENTS WITHOUT UNDERSTANDING THE IMPACT ON YOU OR YOUR CASE
As I mentioned before, a representative of the company that insures the person responsible for your injuries may contact you quickly after the accident. This adjuster may offer to obtain your med-ical records directly from your doctor or hospital if you will just sign a medical release. While this offer seems helpful, we typically advise our clients not to sign any adjuster documents without talking to us. This is your personal information and there are strict federal laws regarding the disclosure of your personal, private information. You want to make sure you get sound legal advice before you sign any-thing. And further, as explained earlier, your signature on a release may bar you from further recovery.
EPILOGUE
Hopefully, this book has given you some valuable information that will help you with your personal injury claim. As you move for-ward in your claim, be sure to get as much information as possible, but be sure that information is specific to the state where you file your claim (typically the state where you were injured). Each state has its own legal system so be sure that you know the information that pertains to you.
In addition to this book, there is additional information on our Web site: www.otplaw.com. There you will find helpful forms, stud-ies, and you can also order some of our other books.
We hope that this book has provided you with an unprecedent-ed look at personal injury. Of course, if you have additional ques-tions, we are happy to help. We would also be excited to hear from you with any feedback that you have on this book or any of our other informational materials. If this book or any of our materials helps you win your case, we’d love to hear that too! We can be reached at 1-866-922-6671 or by email at [email protected].
N.C. Gen. Stat. § 135-45.14(g). Coordination of benefits.
(g) Right of Recovery. – Whenever payments have been made by the Claims Processor with respect to covered services in a total amount which is, at any time, in excess of the maximum amount of payment necessary at that time to satisfy the intent of this provision, irrespec-tive of to whom paid, the Claims Processor shall have the right to recover such payments, to the extent of such excess, from among one or more of the following, as the Claims Processor shall determine: any persons to or for or with respect to whom such payments were made, any insurance companies, or any other organizations.
N.C.G.S. § 135-45.15. Liability of third person; right of sub-rogation; right of first recovery.
(a) The Plan shall have the right of subrogation upon all of the Plan member's right to recover from a liable third party for pay-ment made under the Plan, for all medical expenses, including provider, hospital, surgical, or prescription drug expenses, to the extent those payments are related to an injury caused by a liable third party. The Plan member shall do nothing to prejudice these rights. The Plan has the right to first recovery on any amounts so recovered, whether by the Plan or the Plan member, and whether recovered by litigation, arbitration, mediation, settlement, or other-wise. Notwithstanding any other provision of law to the contrary, the recovery limitation set forth in G.S. 28A_18_2 shall not apply to the Plan's right of subrogation of Plan members.
(b) If the Plan is precluded from exercising its right of sub-rogation, it may exercise its rights of recovery pursuant to G.S. 135_40.13(g). If the Plan recovers damages from a liable third party in excess of the claims paid, any excess will be paid to the member, less a proportionate share of the costs of collection.
(c) In the event a Plan member recovers any amounts from a liable third party to which the Plan is entitled under this section, the Plan may recover the amounts directly from the Plan member. The Plan has a lien, for not more than the value of claims paid relat-ed to the liability of the third party, on any damages subsequently recovered against the liable third party. If the Plan member fails to pursue the remedy against a liable third party, the Plan is subrogat-ed to the rights of the Plan member and is entitlsubrogat-ed to enforce liabil-ity in the Plan's own name or in the name of the Plan member for the amount paid by the Plan.
(d) In no event shall the Plan's lien exceed fifty percent (50%) of the total damages recovered by the Plan member, exclusive of the Plan member's reasonable costs of collection as determined by the Plan in the Plan's sole discretion. The decision by the Plan as to the reasonable cost of collection is conclusive and is not a "final agency decision" for purposes of a contested case under Chapter 150B of the General Statutes. Notice of the Plan's lien or right to recovery shall be presumed when a Plan member is represented by an attorney, and the attorney shall disburse proceeds pursuant to this section. (2004_124, s. 31.25; 2006_264, s. 66(a); 2008_168, ss. 1(a), 3(a), (t).)
N.C.G.S. § 97-10.2. Rights under Article not affected by lia-bility of third party; rights and remedies against third parties.
(a) The right to compensation and other benefits under this Article for disability, disfigurement, or death shall not be affected by the fact that the injury or death was caused under circumstances cre-ating a liability in some person other than the employer to pay dam-ages therefor, such person hereinafter being referred to as the "third party." The respective rights and interests of the employee_benefici-ary under this Article, the employer, and the employer's insurance carrier, if any, in respect of the common_law cause of action against such third party and the damages recovered shall be as set forth in this section.
(b) The employee, or his personal representative if he be dead, shall have the exclusive right to proceed to enforce the liabili-ty of the third parliabili-ty by appropriate proceedings if such proceedings are instituted not later than 12 months after the date of injury or death, whichever is later. During said 12_month period, and at any time thereafter if summons is issued against the third party during said 12_month period, the employee or his personal representative shall have the right to settle with the third party and to give a valid and complete release of all claims to the third party by reason of such injury or death, subject to the provisions of (h) below.
(c) If settlement is not made and summons is not issued within said 12_month period, and if employer shall have filed with the Industrial Commission a written admission of liability for the benefits provided by this Chapter, then either the employee or the employer shall have the right to proceed to enforce the liability of the third party by appropriate proceedings; either shall have the right to settle with the third party and to give a valid and complete release of all claims to the third party by reason of such injury or death, sub-ject to the provisions of (h) below. Provided that 60 days before the expiration of the period fixed by the applicable statute of limitations if neither the employee nor the employer shall have settled with or instituted proceedings against the third party, all such rights shall revert to the employee or his personal representative.
(d) The person in whom the right to bring such proceeding or make settlement is vested shall, during the continuation thereof, also have the exclusive right to make settlement with the third party and the release of the person having the right shall fully acquit and discharge the third party except as provided by (h) below. A proceed-ing so instituted by the person havproceed-ing the right shall be brought in the name of the employee or his personal representative and the employer or the insurance carrier shall not be a necessary or proper party thereto. If the employee or his personal representative shall refuse to cooperate with the employer by being the party plaintiff, then the action shall be brought in the name of the employer and the employee or his personal representative shall be made a party plaintiff or party defendant by order of court.
(e) The amount of compensation and other benefits paid or payable on account of such injury or death shall be admissible in evi-dence in any proceeding against the third party. In the event that said amount of compensation and other benefits is introduced in such a proceeding the court shall instruct the jury that said amount will be deducted by the court from any amount of damages award-ed to the plaintiff. If the third party defending such proceaward-eding, by answer duly served on the employer, sufficiently alleges that action-able negligence of the employer joined and concurred with the neg-ligence of the third party in producing the injury or death, then an issue shall be submitted to the jury in such case as to whether action-able negligence of employer joined and concurred with the negli-gence of the third party in producing the injury or death. The employer shall have the right to appear, to be represented, to intro-duce evidence, to cross_examine adverse witnesses, and to argue to the jury as to this issue as fully as though he were a party although not named or joined as a party to the proceeding. Such issue shall be the last of the issues submitted to the jury. If the verdict shall be that actionable negligence of the employer did join and concur with that of the third party in producing the injury or death, then the court shall reduce the damages awarded by the jury against the third party by the amount which the employer would otherwise be entitled to receive therefrom by way of subrogation hereunder and the entire amount recovered, after such reduction, shall belong to the employ-ee or his personal
representative free of any claim by the employer and the third party shall have no further right by way of contribution or otherwise against the employer, except any right which may exist by reason of an express contract of indemnity between the employer and the third party, which was entered into prior to the injury to the employee. In the event that the court becomes aware that there is an express contract of indemnity between the employer and the third party the court may in the interest of justice exclude the employer from the trial of the claim against the third party and may meet the issue of the actionable negligence of the employer to the jury in a separate hearing.
(f ) (1) If the employer has filed a written admission of liability for benefits under this Chapter with, or if an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount obtained by any person by settle-ment with, judgsettle-ment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the follow-ing order of priority:
a. First to the payment of actual court costs taxed by judg-ment and/or reasonable expenses incurred by the employee in the litigation of the third-party claim.
b. Second to the payment of the fee of the attorney repre-senting the person making settlement or obtaining judgment, and except for the fee on the subrogation interest of the employer such fee shall not be subject to the provisions of G.S. 97-90 but shall not exceed one third of the amount obtained or recovered of the third party.
c. Third to the reimbursement of the employer for all ben-efits by way of compensation or medical compensation expense paid or to be paid by the employer under award of the Industrial Commission.
d. Fourth to the payment of any amount remaining to the employee or his personal representative.
(2) The attorney fee paid under (f )(1) shall be paid by the employee and the employer in direct proportion to the amount each shall receive under (f )(1)c and (f )(1)d hereof and shall be deducted from such payments when distribution is made.
(g) The insurance carrier affording coverage to the employ-er undemploy-er this Chaptemploy-er shall be subrogated to all rights and liabilities of the employer hereunder but this shall not be construed as confer-ring any other or further rights upon such insurance carrier than those herein conferred upon the employer, anything in the policy of insurance to the contrary notwithstanding.
(h) In any proceeding against or settlement with the third party, every party to the claim for compensation shall have a lien to the extent of his interest under (f ) hereof upon any payment made by the third party by reason of such injury or death, whether paid in settlement, in satisfaction of judgment, as consideration for covenant not to sue, or otherwise and such lien may be enforced against any person receiving such funds. Neither the employee or his personal representative nor the employer shall make any settlement with or accept any payment from the third party without the writ-ten consent of the other and no release to or agreement with the third party shall be valid or enforceable for any purpose unless both employer and employee or his personal representative join therein; provided, that this sentence shall not apply:
(1) If the employer is made whole for all benefits paid or to be paid by him under this Chapter less attorney's fees as provided by (f )(1) and (2) hereof and the release to or agreement with the third party is executed by the employee; or
(2) If either party follows the provisions of subsection (j) of this section.
(i) Institution of proceedings against or settlement with the third party, or acceptance of benefits under this Chapter, shall not in any way or manner affect any other remedy which any party to the claim for compensation may have except as otherwise specifically provided in this Chapter, and the exercise of one remedy shall not in any way or manner be held to constitute an election of remedies so as to bar the other.
(j) Notwithstanding any other subsection in this section, in the event that a judgment is obtained by the employee in an action against a third party, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose or where the injured employee resides, or to a presiding judge of either district, to determine the subrogation amount. After notice to the employer and the insurance carrier, after an opportunity to be heard by all interested parties, and with or without the consent of the employer, the judge shall determine, in his discretion, the amount, if any, of the employer's lien, whether based on accrued or prospective workers' compensation benefits, and the amount of cost of the third party litigation to be shared between the employee and employer. The judge shall consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in deter-mining the appropriate amount of the employer's lien. If the matter is pending in the federal district court such determination may be made by a federal district court judge of that division. (1929, c. 120, s. 11; 1933, c. 449, s. 1; 1943, c. 622; 1959, c. 1324; 1963, c. 450, s. 1; 1971, c. 171, s. 1; 1979, c. 865, s. 1; 1983, c. 645, ss. 1, 2; 1991, c. 408, s. 1; c. 703, s. 2; 1999_194, s. 1; 2004_199, s. 13(b).)
Article 9.
Liens upon Recoveries for Personal Injuries to Secure Sums Due for Medical Attention, etc.
§ 44-49 Lien created; applicable to persons non sui juris.
(a) From and after March 26, 1935, there is hereby created a lien upon any sums recovered as damages for personal injury in any civil action in this State. This lien is in favor of any person, corpora-tion, State entity, municipal corporation or county to whom the per-son so recovering, or the perper-son in whose behalf the recovery has been made, may be indebted for any drugs, medical supplies, ambu-lance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services rendered in connection with the injury in compensation for which the damages have been recovered. Where damages are recovered for and in behalf of minors or persons non compos mentis, the liens shall attach to the sum recovered as fully as if the person were sui juris.
(b) Notwithstanding subsection (a) of this section, no lien provided for under subsection (a) of this section is valid with respect to any claims whatsoever unless the physician, dentist, nurse, hospi-tal, corporation, or other person entitled to the lien furnishes, with-out charge to the attorney as a condition precedent to the creation of the lien, upon request to the attorney representing the person in whose behalf the claim for personal injury is made, an itemized statement, hospital record, or medical report for the use of the attor-ney in the negotiation, settlement, or trial of the claim arising by rea-son of the perrea-sonal injury, and a written notice to the attorney of the lien claimed.
(c) No action shall lie against any clerk of court or any sure-ty on any clerk's bond to recover any claims based upon any lien or liens created under subsection (a) of this section when recovery has been had by the person injured, and no claims against the recovery were filed with the clerk by any person or corporation, and the clerk has otherwise disbursed according to law the money recovered in the action for personal injuries. (1935, c. 121, s. 1; 1947, c. 1027; 1959, c. 800, s. 1; 1967, c. 1204, s. 1; 1969, c. 450, s. 1; 2001-377, s. 1; 2001-487, s. 59.)
§ 20-279.21. "Motor vehicle liability policy" defined.
(a) A "motor vehicle liability policy" as said term is used in this Article shall mean an owner's or an operator's policy of liability insurance, certified as provided in G.S. 20-279.19 or 20-279.20 as proof of financial responsibility, and issued, except as otherwise pro-vided in G.S. 20-279.20, by an insurance carrier duly authorized to transact business in this State, to or for the benefit of the person named therein as insured.
(b) Such owner's policy of liability insurance:
(1) Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is there-by to be granted;
(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, or any other persons in lawful possession, against loss from the liabili-ty imposed by law for damages arising out of the ownership, main-tenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada subject to lim-its exclusive of interest and costs, with respect to each such motor vehicle, as follows: thirty thousand dollars ($30,000) because of bodily injury to or death of one person in any one accident and, sub-ject to said limit for one person, sixty thousand dollars ($60,000) because of bodily injury to or death of two or more persons in any one accident, and twenty-five thousand dollars ($25,000) because of injury to or destruction of property of others in any one accident; and
(3) (Effective until January 1, 2009) No policy of bodily injury liability insurance, covering liability arising out of the owner-ship, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this State with respect to any motor vehicle reg-istered or principally garaged in this State unless coverage is provid-ed therein or supplemental thereto, under provisions filprovid-ed with and approved by the Commissioner of Insurance, for the protection of persons insured
thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, in an amount not to be less than the financial responsibility amounts for bodily injury liability as set forth in G.S. 20-279.5 nor greater than one million dollars ($1,000,000), as selected by the policy owner. The provisions shall include coverage for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of injury to or destruction of the property of such insured, with a limit in the aggregate for all insureds in any one accident of up to the limits of property damage liability in the owner's policy of liability insurance, and subject, for each insured, to an exclusion of the first one hundred dollars ($100.00) of such damages. The provision shall further provide that a written statement by the liability insurer, whose name appears on the certification of financial responsibility made by the owner of any vehicle involved in an accident with the insured, that the other motor vehicle was not covered by insurance at the time of the acci-dent with the insured shall operate as a prima facie presumption that the operator of the other motor vehicle was uninsured at the time of the accident with the insured for the purposes of recovery under this provision of the insured's liability insurance policy. The coverage required under this subdivision is not applicable where any insured named in the policy rejects the coverage. An insured named in the policy may select different coverage limits as provided in this subdi-vision. If the named insured in the policy does not reject uninsured motorist coverage and does not select different coverage limits, the amount of uninsured motorist coverage shall be equal to the highest limit of bodily injury and property damage liability coverage for any one vehicle in the policy. Once the option to reject the uninsured motorist coverage or to select different coverage limits is offered by the insurer, the insurer is not required to offer the option in any renewal, reinstatement, substitute, amended, altered, modified, transfer, or replacement policy unless the named insured makes a written request to exercise a different option. The selection or rejec-tion of uninsured motorist coverage or the failure to select or reject by a named insured is valid
and binding on all insureds and vehicles under the policy. Rejection of or selection of different coverage limits for uninsured motorist coverage for policies under the jurisdiction of the North Carolina Rate Bureau shall be made in writing by a named insured on a form promulgated by the Bureau and approved by the Commissioner of Insurance.
If a person who is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle is an insured under the uninsured motorist coverage of a policy that insures more than one motor vehicle, that person shall not be permitted to com-bine the uninsured motorist limit applicable to any one motor vehi-cle with the uninsured motorist limit applicable to any other motor vehicle to determine the total amount of uninsured motorist cover-age available to that person. If a person who is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle is an insured under the uninsured motorist coverage of more than one policy, that person may combine the highest applicable uninsured motorist limit available under each policy to determine the total amount of uninsured motorist coverage available to that person. The previous sentence shall apply only to insurance on non-fleet private passenger motor vehicles as described in G.S. 58-40-10(1) and (2).
In addition to the above requirements relating to uninsured motorist insurance, every policy of bodily injury liability insurance covering liability arising out of the ownership, maintenance or use of any motor vehicle, which policy is delivered or issued for delivery in this State, shall be subject to the following provisions which need not be contained therein.In addition to the above requirements relating to uninsured motorist insurance, every policy of bodily injury liability insurance covering liability arising out of the owner-ship, maintenance or use of any motor vehicle, which policy is deliv-ered or issued for delivery in this State, shall be subject to the follow-ing provisions which need not be contained therein.
a. A provision that the insurer shall be bound by a final judgment taken by the insured against an uninsured motorist if the insurer has been served with copy of summons, complaint or other process in the action against the uninsured motorist by registered or certified mail, return receipt requested, or in any manner provided by law; provided however, that the determination of whether a motorist is uninsured may be decided only by an action against the insurer alone. The insurer, upon being served as herein provided, shall be a party to the action between the insured and the uninsured motorist though not named in the caption of the pleadings and may defend the suit in the name of the uninsured motorist or in its own name. The insurer, upon being served with copy of summons, com-plaint or other pleading, shall have the time allowed by statute in which to answer, demur or otherwise plead (whether the pleading is verified or not) to the summons, complaint or other process served upon it. The consent of the insurer shall not be required for the ini-tiation of suit by the insured against the uninsured motorist: Provided, however, no action shall be initiated by the insured until 60 days following the posting of notice to the insurer at the address shown on the policy or after personal delivery of the notice to the insurer or its agent setting forth the belief of the insured that the prospective defendant or defendants are uninsured motorists. No default judgment shall be entered when the insurer has timely filed an answer or other pleading as required by law. The failure to post notice to the insurer 60 days in advance of the initiation of suit shall not be grounds for dismissal of the action, but shall automatically extend the time for the filing of an answer or other pleadings to 60 days after the time of service of the summons, complaint, or other process on the insurer.
b. Where the insured, under the uninsured motorist cover-age, claims that he has sustained bodily injury as the result of colli-sion between motor vehicles and asserts that the identity of the oper-ator or owner of a vehicle (other than a vehicle in which the insured is a passenger) cannot be ascertained, the insured may institute an action directly against the insurer:
