Charlotte Injury Lawyer Blog

It seems that House Bill 813 has lost its steam in the attempt to get it passed through the North Carolina Senate and will most likely not be enacted into law this session. This is reminiscent of last year when Representative Glazier introduced and got the bill passed in the House, only for it to fail in the Senate. Senator Pete Brunstetter, a Republican from Forsyth County, has tried to get the bill through the Senate this time around. He said that negotiations broke down among the interested parties, including lawyers, medical groups, the chamber of commerce and the insurance federation. A critical blow to the bill's support occurred when the North Carolina Advocates for Justice withdrew its endorsement of the bill in June. The Advocates for Justice were a major driving force behind getting the bill passed. Senator Brunstetter said that the legislation probably will be proposed when the General Assembly meets in 2011. So, for now, North Carolina looks like it will remain a contributory negligence jurisdiction for at least another year.

Information obtained from:

Bill that would help victims sue appears stalled by The Fayetteville Observer
- article can be accessed at: Bill that would help victims sue appears stalled

Jake Daniel for Hull and Chandler

House Bill 813, like most pieces of legislation, has both proponents and opponents. Mainly, the proponents of the bill are those who are in the legal profession, due to the fact that comparative fault is a system more in line with justice since it allocates fault among those who are responsible. The opponents, being mainly the insurance companies take their position because, according to them, switching to a comparative negligence state would mean more pay-outs to claimants. Because there are two groups with opposite, but legitimate, goals, compromises have to be made to satisfy both groups.

One compromise that the state legislature has made to insurance company lobbying is adopting a modified version of comparative fault where a plaintiff is barred from recovery if her fault exceeds a certain threshold. The North Carolina House of Representatives decided to adopt an amendment to House Bill 813 which states that where a party contributes equal to or greater than the combined responsibility of all other parties, she will be barred from recovery. The other option would have been to allow recovery only when a party's fault did not exceed the combined responsibility of all other parties. Now, with the amendment, a plaintiff who is 50% at fault in an accident can recover nothing, whereas, without the amendment, a plaintiff could recover even if he was 50% at fault.

Another compromise deals with the area of damage allocation. Right now, North Carolina has joint and several liability. This means that if there is more than one defendant in a case, the money awarded to the plaintiff can be recovered from any single defendant. Basically, if one defendant can't pay, the other defendant(s) is liable for the insolvent's share. If comparative fault is implemented, many view that it is unfair to hold a single party liable for more than her proportional fault. A better way to allocate the amount awarded is a method of allocation called several liability. Under pure several liability, each defendant is responsible for her percentage of fault in an accident. The wrench comes where one of multiple defendants is insolvent and cannot pay her portion of the judgment. When this happens, a way to fix the problem is to reallocate the responsible shares among the other parties depending on their proportion of responsibility. This switches the burden of a co-defendant's inability to pay from the plaintiff to the other co-defendant(s) who can pay. Reallocation is seen to be the fairest way to deal with the problem of insolvency.

In another compromise to insurance companies, The North Carolina House of Representatives has adopted an amendment stating that a liable defendant's share can not be increased by reallocation if her percentage of responsibility is less than the plaintiff's. Therefore, if the plaintiff's fault in an accident is more than that of the solvent co-defendant, the plaintiff will have the entire uncollectible share of the insolvent defendant reallocated to her. This is something that would not happen under our current scheme of contributory negligence. In essence, this is a limitation on the amount that a plaintiff can recover under a modified several liability regime of comparative fault.

House Bill 813 is a compromised bill between two-heavy hitters. As it stands now if passed, North Carolina will enact a law that incorporates modified comparative fault system along with modified several liability, allowing for reallocation of the uncollectible share.

Information obtained from:

The Road to Comparative Fault in North Carolina by Burton Craige, a Raleigh attorney
- article can be accessed at: Road to Comparative Fault in North Carolina

Jake Daniel for Hull and Chandler

The most important thing that people want to know about the new comparative fault law is whether it will drive up automobile insurance rates for drivers. North Carolina senators requested a reliable breakdown of the issues to determine the effect that implementing this new law would have on insurance premiums for the citizens of North Carolina. In response, the North Carolina Advocates for Justice hired an independent firm, Pinnacle Actuarial Resources, which specializes in analyzing the insurance industry to study other jurisdictions that have made the switch from contributory negligence to comparative fault.

The study was done in the contiguous comparative negligence states of South Carolina and Tennessee. The data indicated that switching from contributory negligence to comparative fault did not result in any substantial increase in insurance rates. In fact, the study suggested that since those states switched to comparative fault, North Carolina and Virginia rates have increased at a faster pace under their contributory negligence scheme. South Carolina converted from contributory negligence to comparative fault in 1991 and Tennessee followed in 1992. Both states had higher insurance rates than North Carolina before they switched. "After the change, the gap between South Carolina and North Carolina closed from 29.4 percent in early 1991 to 2.6 percent in early 2009. The difference between Tennessee and North Carolina fell from 19.4 percent to 5.4 percent. After moving to comparative fault, according to Pinnacle Actuarial Resources, increases in premiums slowed significantly in South Carolina and Tennessee while North Carolina's contributory premiums climbed at a steeper rate."

However, insurance companies continue to warn consumers that insurance rates will surely rise if comparative fault is adopted. The insurance companies base this on the logic that comparative fault will allow for more lawsuits to be filed that are currently not possible under our contributory negligence regime. More lawsuits filed means more money paid out by insurance companies, meaning higher insurance premiums for everyone. EPIC Consulting LLC conducted a study that was completed in February for the N.C. Rate Bureau, a nonprofit entity serving the North Carolina insurance industry, where the actuaries found data to support this contention. The actuaries reported that a shift to comparative negligence law in North Carolina could increase the number of bodily injury claims by approximately 16.6 percent.

In the end, it is important to remember who is conducting these studies and why. Both the proponents and the opponents of the bill have a stake in the game it's up to the people of North Carolina to decide what's best for them as citizens of this state.

Information obtained from:

The Road to Comparative Fault in North Carolina by Burton Craige, a Raleigh attorney - article can be accessed at: Road to Comparative Fault in North Carolina

Adopt Fairer System of Accountability by David Pishko, a Winston-Salem attorney and president of the N.C. Advocates of Justice
- article can be accessed at: Adopt Fairer System of Accountability

Let those at fault sue and watch your insurance costs rise by Jennifer Cohen, executive director of the Insurance Federation of NC
- article can be accessed at: Let those at fault sue and watch your insurance costs rise

Jake Daniel for Hull and Chandler

This is the first entry in a four-part series giving educational information on House Bill 813 which is being debated this session on the North Carolina Senate floor. This article gives a short overview about what House Bill 813 is all about. Once a week over the next three weeks, a new entry will be posted about the bill discussing different aspects of its content.

House Bill 813 is a proposed enactment that will transition North Carolina into a comparative fault jurisdiction, bringing us into the company of 46 other states who already have some form of comparative fault in place. The only other jurisdictions that currently operate under a contributory negligence regime are Virginia, Alabama, Maryland, and the District of Columbia. Comparative fault allocates responsibility among the parties liable in a case involving injury. This is different from our current system where it stands that if person is the slightest bit at fault in an accident (even 1%), he or she cannot recover any damages whatsoever.

The Uniform Apportionment of Tort Responsibility Act (UATRA) is a model bill that was approved by the National Conference of Commissioners on Uniform State Laws in 2002. This bill basically takes the experiences of other states that have enacted a particular form of comparative fault and incorporates the best features of all those jurisdictions into one act. The North Carolina House of Representatives has integrated UATRA into its bill, so if it passes in the Senate without a complete overhaul this session, North Carolina will most likely enact a comparative fault law based on UATRA.

Contributory negligence is seen and viewed by many versed in that area of the law to be outdated. Comparative fault is thought to be more in line with justice and fairness because it proportions the amount of damages to be paid by a person's level of fault. North Carolina Representative Rick Glazier is the sponsor of House Bill 813 and he has stated that the bill would modernize basic tort law in North Carolina.

Next week's article will address the impact on drivers' insurance in North Carolina if House Bill 813 is enacted into law. The articles that will be posted the following two weeks will respectively address the compromises reached in the bill to help meet the needs of both North Carolina drivers and insurance companies, and how the new comparative fault law, if enacted, will function.

For more a more in-depth look at comparative fault in North Carolina see Road to Comparative Fault in North Carolina published by attorney Burton Craige.

Jake Daniel for Hull and Chandler

Attorney Inezmarie K. Docar of Hull & Chandler, P.A. is knowledgeable in American Sign Language, allowing her to give assistance to an often overlooked group. She has been signing for over twelve years, and can assist those clients who are hearing impaired and would otherwise have trouble communicating with their attorney who is not familiar with American Sign Language. Inezmarie's practice focuses on Corporate Law, Estate Planning, Personal Injury Law and Civil litigation.

Attorney Docar is able to assist clients in a wide range of corporate issues from formation and business planning, drafting corporate documents, corporate litigation, dissolution, contract review, Non-Profits, and intellectual property matters. In addition to corporate work, Attorney Docar can also assist those who are seeking counsel to help with Estate Planning matters, such as Wills, Trusts, Living Wills, Power of Attorney appointments, and Estate Administration. Lastly, Attorney Docar can also assist those clients with Personal Injury matters such as a recent motor vehicle accident, slip and falls, dog bites, wrongful death and property damage.

Attorney Inezmarie K. Docar looks forward to assisting clients of the hearing impaired community, and hopes that her knowledge of American Sign Language will make her clients feel more comfortable.

On August 3, 2009, Attorney Michael Chandler received an arbitration award of One Million One Hundred Thousand Dollars ($1,100,000.00) on behalf of a client in a catastrophic automobile accident.

Our client was injured by a drunk drive when the drunk driver crossed the center line in the road and collided with her vehicle. Our client was severely injured in the crash impairing her ability to walk. Multiple surgeries and other medical treatment was required due to the injury.

Expert testimony was required to prove the permanent nature of the injuries and lost earning capacity. The arbitration was held before a panel of three arbitrators and the award was made of $1,000,000.00 for the injuries sustained and $100,000.00 for loss of consortium.

On May 14, 2009 attorney Michael Chandler of the law firm of Hull & Chandler obtained a jury verdict in the amount of $44,100 against a dog owner who was found to be negligent. The dog in question attacked the claimant on February 25, 2007. The claimant suffered a badly dislocated ankle in the attack. Prior to the trial the only offer from the defendants was $1,000, made just three weeks before the trial.

The prosecution of dog attack/bite cases can be a lot more complicated than one might presume. In order to prevail, the owner or keeper of the dog must be shown to have acted in a negligent manner. A common misconception is every dog gets "one free bite". This is not always the case and a recovery can often be achieved when the dog has never bitten or attacked in the past. Another issue that can complicate the case is the type of insurance the owner carries. Many policies now exclude dog attacks form coverage. At Hull & Chandler, we are experienced at handling dog attack cases and have experience in obtaining recoveries where other law firms have told the claimant the case is without merit. If you or a family member has been injured by a dog or other domestic animal you need to consult a personal injury attorney who is experienced in handling similar cases.

The law office of Hull & Chandler, P.A. recently doubled our office space to accommodate our growing practice. We currently have four lawyers that focus on a variety of legal issues including personal injury (car accidents, motorcycle accidents, brain injury, slip and falls, dog bites, etc.), business litigation (shareholder and partnership disputes, non-competes, trade secrets, etc.), business transactions (start-ups, contracts, tax planning, employment agreements, etc.) and estate planning.

Along with the expansion of the office, we are in the process of upgrading the technology in our conference room to allow computer and internet access. We hope that the improved technology will help us more effectively serve our clients in the future.