Elkton, MD Personal Injury & Estate Planning Law Blog

Bringing a Claim for Injuries When the Accident Was Partly Your Fault

In order to prevail in a personal injury case, you must be able to prove that your injuries were directly caused by the negligent actions of another. If you can prove that your injuries were at least partly caused by another, you may be able to receive compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses.

If you have been injured in an accident, you may be entitled to recover compensation from anyone else who partially caused the accident, even if the accident was partly your own fault. The legal theories of “contributory negligence” and “comparative negligence” apply in cases where the plaintiff in a lawsuit was partially responsible for his or her own injuries.

“Contributory negligence” means the injured person’s actions, at least to some extent caused his or her own injuries. For example, someone who ignores a “Caution: Wet Floor” sign and subsequently slips and falls may be deemed to have been careless and, thus, at fault for his or her injuries. As such, contributory negligence can prevent the injured person from recovering any compensation, even when his or her carelessness was minor as compared to the fault of the other party. In some states, accident victims are entitled to recover compensation only if they can prove that the other party’s fault was greater.

In some jurisdictions, the concept of contributory negligence has fallen out of favor and is no longer applied. Instead, it has been replaced with the concept of “comparative negligence.” Comparative negligence means that the fault for causing an accident is compared among all parties, typically broken down as a percentage of fault attributed to each party. When this occurs, the monetary recovery awarded to the injured plaintiff is reduced by his or her percentage of fault. For example, if you were injured in a car accident that was determined to be 25% your fault, your monetary recovery from the other driver’s insurance company would be limited to 75% of the amount of your damages from the accident, an amount equal to that driver’s percentage of fault for causing the accident. By applying the concept of comparative negligence, each party is held accountable only for his or her percentage of fault for causing the injuries.

You may be deemed to be partially at fault for your injuries if you have failed to act with reasonably prudent care under the circumstances of the accident, or if you voluntarily assume a portion of the risk by exposing yourself to danger, such as by failing to use the available restraints on an amusement park ride or ignoring a posted warning sign.

The total value of your claim is based on many factors, including how easily fault can be apportioned among the parties, the seriousness of your injuries, medical treatments received and insurance coverage limits. Once the claim’s total value is established and the percentages are applied, a final figure for the injured plaintiff’s compensation can be determined.

Know the Risks of “D-I-Y” Divorce

“Do it yourself” divorce is fraught with risks – even if your case is “simple” and both parties agree on all issues regarding division of property, support, and child custody and visitation. As many have learned the hard way, it is all too easy to make critical missteps today that will come back to haunt you down the road.

The proliferation of DIY websites and non-attorney legal document preparers give the impression that the process is simpler than it is. These services can help you deal with the court forms required to dissolve a marriage, including financial disclosures, motions, hearing notices and child support paperwork. It’s tempting to save money by using one of these services to prepare and file your divorce forms without using a lawyer.

Unfortunately, these services will leave you in the lurch when things do not go as planned, as they cannot offer you any legal advice or engage in any negotiations on your behalf. Worse still, they cannot point out the pitfalls contained in your paperwork which can pose risks to your financial future long after you think you’ve put the marriage behind you.

The typical do-it-yourselfer believes that everything is correctly resolved because the court accepted and processed the forms and has issued the divorce decree. However, this may or may not be the case; and any problems can remain undiscovered for years until, for example, one spouse embarks on a significant financial transaction such as purchasing a home.

A common scenario involves incomplete (or incorrect) provisions in a marital settlement agreement, leaving both spouses legally on the hook for a mortgage. What happens when the spouse who kept the home and obligated to make the monthly payments fails to do so? What happens when the other spouse applies for a mortgage on a new home, but the amount of the monthly payment of the previous mortgage is still considered when calculating the debt-to-income ratio? This is just one example of how “saving money” on the front end of your divorce can cost you greatly in the future.

Even if your divorce is “uncontested,” in that you and your spouse agree on all of the settlement terms, getting legal advice upfront will ensure the process goes smoothly and that you do not encounter any unpleasant surprises in the future. A consultation with a family law attorney can identify what issues must be addressed, point out potential negative consequences of certain decisions, and let you know what to expect throughout the divorce process.

If your divorce case is “contested,” meaning you cannot agree on terms regarding your property or children, it is important that you consult with a lawyer to obtain a realistic idea of what you can expect based on your legal rights under the circumstances. And, unlike the DIY services, an attorney can also represent your interests during settlement negotiations. If settlement negotiations are unsuccessful, your lawyer can ensure the court fully considers all information in your favor prior to making any rulings.

A Simple Will Is Not Enough

A basic last will and testament cannot accomplish every goal of estate planning; in fact, it often cannot even accomplish the most common goals.  This fact often surprises people who are going through the estate planning process for the first time.  In addition to a last will and testament, there are other important planning tools which are necessary to ensure your estate planning wishes are honored.

Beneficiary Designations
Do you have a pension plan, 401(k), life insurance, a bank account with a pay-on-death directive, or investments in transfer-on-death (TOD) form?

When you established each of these accounts, you designated at least one beneficiary of the account in the event of your death.  You cannot use your will to change or override the beneficiary designations of such accounts.  Instead, you must change them directly with the bank or company that holds the account.

Special Needs Trusts
Do you have a child or other beneficiary with special needs?

Leaving money directly to a beneficiary who has long-term special medical needs may threaten his or her ability to qualify for government benefits and may also create an unnecessary tax burden.  A simple vehicle called a special needs trust is a more effective way to care for an adult child with special needs after your death.

Conditional Giving with Living or Testamentary Trusts
Do you want to place conditions on some of your bequests?

If you want your children or other beneficiaries to receive an inheritance only if they meet or continually meet certain prerequisites, you must utilize a trust, either one established during your lifetime (living trust) or one created through instructions provided in a will (testamentary trust).

Estate Tax Planning
Do you expect your estate to owe estate taxes?

A basic will cannot help you lower the estate tax burden on your assets after death.  If you think your estate will be liable to pay taxes, you can take steps during your lifetime to minimize that burden on your beneficiaries.  Certain trusts operate to minimize estate taxes, and you may choose to make some gifts during your lifetime for tax-related reasons.  

Joint Tenancy with Right of Survivorship
Do you own a house with someone “in joint tenancy”?

“Joint tenancy” is the most common form of house ownership with a spouse.  This form of ownership is also known as “joint tenancy with right of survivorship,” “tenancy in the entirety,” or “community property with right of survivorship.”  When you die, your ownership share in the house passes directly to your spouse (or the other co-owner).  A provision in your will bequeathing your ownership share to a third party will not have any effect.

Pet Trusts
Do you want to leave money to your pets or companion animals?

Pets are generally considered property, and you cannot use your will to leave property (money) to other property (pets).  Instead, you can use your will to name a caretaker for your animals and to leave a sum of money to that person for the animals’ care. 

Almost all states require some form of auto coverage insurance. This may include Bodily Injury Coverage, Personal Injury Protection, Property Damage Liability, Collision Coverage, and even Uninsured Motor Coverage. Depending on the state, the coverage level will vary greatly. For instance, you may only be required by to carry $25,000 in bodily injury coverage. While a relative residing across the country may be required to carry $50,000 in bodily injury coverage.  And while mandated requirements are often used as guides by drivers when selecting their policies, these coverage levels are not always enough to cover the cost of an accident. So what happens if you are underinsured and at fault in an accident?

The course of action will vary greatly depending on whether you are in a state with no-fault laws or traditional tort insurance laws. In states with no-fault laws, your insurance company will pay your damages while the other party’s insurance company will be responsible for theirs so if you choose to carry low levels of coverage the amount you receive after an accident will be capped by the coverage you selected. In states where traditional tort insurance laws exist, fault is established and the party at fault is responsible for the damages. If the driver at fault is underinsured in a traditional tort state, both parties may be in trouble.

Following the accident, your insurance company will seek to settle all claims as soon as possible. Even if you carry the lowest possible coverage, your insurer is responsible for your legal representation. If the opposing party has injuries exceeding your coverage level, and has Underinsured or Uninsured Motor Coverage, he or she may be able to collect the difference from this policy. However, if they don’t have this extra protection net from their own insurer or the damages exceed the policy limits, the injured party may file a lawsuit against you where your personal assets are at risk. 

In selecting an auto insurance policy, you might consider purchasing coverage above the minimum limits to protect your assets and livelihood. While a limit of $25,000 may seem high, the costs of healthcare continue to soar and just a one week stay at a hospital following an accident can easily exceed that amount.

Deposition Do’s and Don’t’s

Should I Sue for My Injuries?

Whether you’ve been injured as result of a car accident, fall at the local market or a bite by a neighbor’s pit bull, you may be asking yourself, “Should I Sue?” Most people think they should, and that a sizable settlement payment will be forthcoming.

In our legal system, a negligent party is expected to pay for damages you incurred because of the accident or injury, such as medical costs, lost income, property damage, and pain and suffering. In certain cases, punitive damages may be awarded if a person’s conduct was malicious or intentional. Nevertheless, just because you have been injured does not necessarily mean that you should file a lawsuit, a decision which rests on multiple factors.

Such factors include the seriousness of your injury, the level of fault that rests with the negligent party, and your own liability for involvement in the accident or causing your own injury. One of the biggest considerations, however, is whether the wrongdoer has the financial means to pay any judgment that you may be awarded. If the defendant is insolvent, your judgment may prove to be worthless – but your attorney and other professionals involved in your case will expect to be paid.

Accordingly, insurance coverage is a significant consideration. Although the defendant may have few assets from which to collect a future judgment, there may be sufficient insurance coverage available to pay any eventual judgment. Note, however, that most insurance policies typically do not cover intentional torts.

An experienced personal injury attorney can help you review the various risks and benefits of pursuing a lawsuit, in light of your specific circumstances. Before deciding whether to undertake the time and expense of litigation, you must carefully weigh your involvement in any comparative or contributory negligence, what evidence will be necessary to prove your case and the amount of damages you should be awarded, and the availability of assets or insurance to secure payment of a future judgment.
 

How are Damages Calculated in Personal Injury Cases?

If you have been injured as a result of someone else’s negligent conduct, you may be considering a lawsuit to recover compensation. The compensation awarded to you, called “damages,” falls within two categories: compensatory damages and punitive damages. Compensatory damages are designed to compensate the plaintiff for actual losses sustained, and are further divided into “special damages” and “general damages.”

Special damages are those fixed amounts relating to your actual losses, such as medical expenses, lost income or costs to repair your property. General damages, on the other hand, include non-monetary losses, such as “pain and suffering”, your decreased ability to perform certain functions, or the loss of a loved one. Punitive damages, sometimes called exemplary damages, are designed to punish a defendant or deter similar conduct in the future.

The damages to which you are entitled are typically calculated based on the severity of your injuries, the underlying circumstances of the incident in question, and whether the case settles or proceeds to a trial. The following factors are typically considered:

• Medical treatment expenses
• Estimated costs of future medical treatment or therapy
• Past lost wages or income
• Future lost wages or income
• Costs to repair or replace damaged property
• Your out-of-pocket expenses, such as insurance deductibles or copayments
• Rental car expenses
• Funeral expenses, in wrongful death cases
• Emotional distress
• Pain and suffering
• Punitive damages, if the underlying act was particularly egregious or intentional

In the American legal system, damages are intended to compensate the plaintiff sufficiently to make him or her “whole,” i.e. restore the plaintiff to the same position he or she was in prior to the accident or injury. If you mediate your dispute or otherwise settle it out of court, the parties and lawyers will negotiate each item and come to an agreement. If your case is tried in a court, the judge or jury will calculate how much you are entitled to receive, based on the evidence presented at trial.

Common Injuries in Automobile Accidents

If you have been involved in an automobile accident, you may be seriously injured and not even realize it. At least, not immediately. Serious injury can occur even in slow or low-impact collisions, and accidents which cause no damage to the vehicle. For example, accident victims can suffer from “whiplash” in collisions involving a sudden change in vehicle speed of just 2.5 miles per hour.    

Motor vehicle collision injuries range from minor cuts and scrapes to catastrophic, life-ending trauma.  Bleeding, broken bones or bruising are obvious indications that a driver or passenger has sustained an injury and needs treatment. However, there are also less-obvious injuries that are much more difficult to diagnose and treat, including myofascial injury (“whiplash”) and mild traumatic brain injury.

“Whiplash” is one of the most common auto accident injuries. The Insurance Institute for Highway Safety recognizes whiplash as “a range of neck injuries related to sudden distortions of the neck that commonly occur in rear-end crashes.” Specifically, this term may refer to a cervical strain, cervical sprain or hyperextension injury. Any sudden impact, even at very low speeds, can cause a whiplash injury to the ligaments, muscles and vertebrae in the neck or back, although the damage may not become apparent for several hours or days. A whiplash injury can be mild, such as a muscle strain, or more severe, including nerve or disc damage, ruptured ligaments or vertebrae fractures.

Treatments for whiplash can include ice, anti-inflammatory medications (such as ibuprofen), physical therapy, chiropractic adjustments, muscle relaxants, massage therapy, or immobilization of the neck or back with a cervical collar or brace. In cases involving severe muscle or ligament damage, cervical traction or surgery may be required. Recovery time for a whiplash injury is typically between a few weeks and three months. Untreated whiplash victims can suffer lasting effects, including chronic pain, an increased susceptibility to future neck or back injuries and posture problems.

Mild traumatic brain injury (MTBI) is a high-level concussion, defined by the Brain Injury Association of America as a “physical injury to the brain that causes a disruption of normal functioning.” MTBI involves a loss of consciousness or loss of memory before or after the accident. There are a wide range of MTBI injuries, from a temporary disruption of normal brain activity to permanent brain changes that affect how a person functions physically, mentally, emotionally and behaviorally. Early MTBI symptoms can include mild symptoms, such as headache, dizziness or confusion. In later stages, MTBI sufferers can face difficulty concentrating, irritability, anxiety, depression, fatigue or a quick temper. These later stage symptoms can be difficult to attribute to the auto accident because they only become apparent long after the injury was sustained.

In the immediate aftermath of an accident, the body’s natural physiological responses often mask the soft-tissue injuries that can occur. But once your body has had a chance to relax, you may experience a number of symptoms related to the accident, including neck and back pain, limited range of motion, muscle spasms, headaches, dizziness, difficulty maintaining balance or equilibrium, shooting pains, muscle soreness, numbness or tingling in the extremities, emotional and behavioral disturbances, or memory and concentration difficulties.

If you have been injured in an automobile collision, your attorney may require the assistance of an experienced accident expert to help prove who is at fault for the accident. Generally, in order to recover any compensation for your injuries or property damage, you will have to prove that the other party was somehow negligent. Accident reconstruction experts are professionals who have obtained specialized training in order to analyze the physics of the accident scene, determine vehicle speeds and movements, and effectively communicate their findings to the court or insurance company representatives.

Many people are confused by advance directives. They are unsure what type of directives are out there, and whether they even need directives at all, especially if they are young. There are several types of advance directives. One is a living will, which communicates what type of life support and medical treatments, such as ventilators or a feeding tube, you wish to receive. Another type is called a health care power of attorney. In a health care power of attorney, you give someone the power to make health care decisions for you in the event are unable to do so for yourself. A third type of advance directive for health care is a do not resuscitate order. A DNR order is a request that you not receive CPR if your heart stops beating or you stop breathing. Depending on the laws in your state, the health care form you execute could include all three types of health care directives, or you may do each individually.