November 2012 Archives

November 28, 2012

Auto Accidents in Parking Lots

Car accidents which occur in parking lots are actually extremely common and come with a host of unique problems and complexities that need to be understood. If you have been involved in an accident which occurred in a store or other parking lot, hopefully the following information can be of assistance.

For most auto accidents that occur on a public road, determining who is at fault is much easier than in a parking lot accident. On a public road there are traffic controls, stop signs, and well understood rules of the road. Violating a rule of the road or ignoring a traffic signal will put one at fault for the car crash. In a parking lot, a determination of fault is not always as easy.

Why is it Tricky to Determine Liability in a Parking Lot?

  • All parking lots are designed differently which can confuse unfamiliar drivers and make it difficult to follow the rules of the road;
  • The presence of pedestrians and so many other parked cars can effect visibility and create a potential hazard;
  • Lack of traffic controls (stop signs, red lights, etc) or clearly defined paths of travel can create confusion among drivers;
  • Because parking lots are private property most police are unwilling to take formal reports. The lack of a formal police report can mean that some facts are missing and allows time for drivers to change their stories.

This is not to say that all parking lot accidents are difficult cases. For instance, a very common occurrence in parking lot accidents is a driver reversing out of a spot into a pedestrian or other car with the right of way. In these scenarios, the driver operating in reverse is almost always 100% at fault.

What Can You Do to Help Your Case?

These suggestions apply to almost all car crashes but are particularly helpful in a parking lot accident. If AND ONLY IF it is safe to do so and you are physically able to:

  • Take pictures of the scene and the placement of all involved vehicles;
  • Search for witnesses who may have seen the accident and take their name and number;
  • Seek medical treatment if you have been injured, call for a rescue if necessary;
  • Contact an experienced auto accident attorney right away! You and your attorney can investigate the possible existence of cameras or video recordings of the parking lot.

A Common Misconception About Parking Lot Accidents

Many people wrongly believe that accidents in parking lots are not that serious because they generally occur at relatively low speed. This is true for some, but not all parking lot accidents. Last year, I settled a case for a woman injured in the Warwick Mall Parking Lot for $125,000! She was thrown into the dashboard fracturing her wrist and causing permanent nerve damage. If you have been injured in a parking lot, whether minor or serious, it is always imperative to contact an experienced personal injury attorney right away.

My office specializes in auto accident cases and I have handled hundreds of parking lot cases. If you have been injured in a parking lot accident contact our office right away for a free no pressure consultation.

November 14, 2012

Interesting Case from Maine Involving Commercial Truck Accidents and Insurance Coverage

A recent Supreme Court decision from the State of Maine brings to light some interesting considerations for accidents involving commercial work trucks and insurance coverage. The case, State Farm Mutual Auto Insurance v. Estate of Carey, stems from a tragic auto accident that claimed the life of James Carey. Mr. Carey was struck and killed by Roger Linton who was an independent contractor and former employee of Jennings Masonry. Linton was driving a large commercial truck owned and insured by Jennings but was not working at the time of the accident. State Farm insured the truck involved in the loss.

Linton was not currently an employee of Jennings, but was in the past. He also frequently drove Jennings vehicles with permission. On the date of this accident, he was again driving in a Jennings truck but did not return the vehicle when he completed his work. Instead, Linton took the truck to several friends houses and a tavern. It was during this "excursion" that the fatal auto accident occurred involving Mr. Carey. Linton was legally drunk at the time of the accident and arrested.

Quickly, State Farm petitioned the Court for a declaratory judgment stating that they had no obligation to insure or defend Linton. Their position was that he did not have "permission" to use the vehicle at the time of the accident and was not using it for work purposes, and therefore, he was not legally operating the vehicle at the time of the collision. If he did not have the permission of the owner to operate the vehicle at the time of the accident, State Farm, would not be required to cover the loss. (As a side note, if that sounds unfair because it could leave the owner of Jennings Masonry holding the bag - you are correct. If an insurance company can avoid paying they will regardless of the harm it might present to their insured).

Some States with mandatory insurance coverage have taken the position that since the lawmakers intended all vehicles to carry liability insurance, that they would be inclined to find coverage in a situation like the one at hand, so long as permission was given, at any time, to operate the vehicle. This is the so called "initial permission" rule. The Maine Supreme Court did not accept this approach and instead held that the trial court would have to reconsider the case under the minor deviation rule. The minor deviation rule has long been the standard for determining whether an employees actions are covered under the employees policy. Clearly, an employee acting on behalf of his employer at the time of an accident is covered by the company's policy. Under the minor deviation rule, an employee who makes a slight or minor detour, such as stopping for lunch, while using a work vehicle will be covered. A major deviation, however, such as the one taken by Linton are unlikely to be covered because it was so far outside of the scope of his employment and work related use of the vehicle, that a jury would conclude that he did not have his employers permission to use the vehicle in that manner.

Auto accidents involving commercial trucks are very serious because of the size and weight of the vehicles involved. The injuries sustained can be catastrophic, or as in the case of Mr. Carey, fatal. It is imperative that you speak with an experienced truck accident attorney right away to ensure that you receive all of the compensation that you deserve.

Continue reading "Interesting Case from Maine Involving Commercial Truck Accidents and Insurance Coverage" »

November 5, 2012

Wrongful Death of a Fetus at Issue in Federal Lawsuit Arising out of a Car Accident

Abortion rights and wrongful death law seem not to have much in common, but a new federal lawsuit in Nebraska may have an interesting effect on both abortion laws and wrongful death laws across the country. The lawsuit stems from a tragic auto accident in which a Maryland couple was killed with their two children when a tractor trailer struck their stationary automobile. It turns out that the woman was also pregnant with the couple's third child. The estate brought the action for wrongful death on behalf of the entire family and cited a 2003 Nebraska law which extends legal protections to an unborn fetus. This is the first case to raise such a statute, but it appears that the law should also give wrongful death rights to the unborn fetus.

Readers can now probably see why this law is problematic when viewed in the light of Roe v. Wade and its subsequent cases. If an unborn fetus is considered a child in the eyes of the law, so that it can be granted legal rights, then it will legally (rather than morally) be murder to terminate the pregnancy. I assure you I am making no stance on the topic here.

Most of the States that have enacted laws similar to the one in Nebraska are right wing leaning States such as Utah, Florida and Nebraska, which are keen on stronger abortion laws and restrictions. The Rhode Island Supreme Court in Amica v. Miccolis held that a nonviable fetus could not maintain a cause of action for wrongful death because it is not a person within the meaning of the wrongful death statute. If this auto accident occurred in RI, the fetus would not have an individual cause of action. If the child, however, could have been delivered (by C-Section for instance) and then died from the injuries sustained in the automobile accident, then a cause of action for wrongful death could proceed.

It will be interesting to follow cases like this one as they unfold. It's mark on federal law could be wide reaching and may cause more States to enact similar liegislation.

Continue reading "Wrongful Death of a Fetus at Issue in Federal Lawsuit Arising out of a Car Accident" »

November 1, 2012

Property Damage - The Other Side of Your Auto Accident Insurance Claim

This blog has always focused primarily on questions of personal injury and pain and suffering recovery, yet there is another important part to an auto accident claim that is often not discussed. That is the property damage - the repair to your vehicle, replacement of a total loss and placement in a rental vehicle immediately following an auto accident.

I have previously written posts about low bodily injury settlement offers from insurance companies if you do not have a personal injury attorney. But even when it comes to property damage, the insurance company's main objective is to cut costs and limit your total recovery. Since you need immediate help following a car crash, it is imperative that you call an experienced car accident attorney right away, so there are no delays or problems with the repair of your vehicle.

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What if my vehicle is repairable?

If your vehicle is repairable following a car accident it will need to be brought to a body shop. Rhode Island law holds that you are entitled to bring the car to the body shop of your choice and an insurance company can not steer you towards a preferred body shop. Many of the so called "preferred" body shops are VERY GOOD and will make a perfect repair to your car. These shops, however, have a very close relationship with the insurance companies and this always opens the door for a conflict of interest. Your vehicle and satisfaction should be the only priority!

It is usually best to have the vehicle inspected AT the body shop. An appraiser can not accurately write an estimate in a driveway or parking lot. It is better to have the vehicle in a shop where it can be disassembled and put on a lift during the inspection process. If the vehicle is to be repaired at a body shop, that shop will work with the appraiser to agree on an estimate for the repair of your vehicle. This process will need little input from you as the owner.

What if my vehicle is a total loss?

If your vehicle is a total loss that means that the cost to repair the vehicle exceeds the value of the car. Therefore, the vehicle will not be repaired, instead the insurance company will offer you the value of the car. Total losses can create a lot of headaches. Sometimes, a car owner is "underwater" in that they owe more for the vehicle than it is worth. Sometimes, the insurance company "valuation" of the vehicle is below your own opinion of the worth of the vehicle. This can happen if the insurance company takes excessive deductions for prior wear and tear or damage to the vehicle. An attorney can help look over the total loss paperwork and ensure that you are receiving a fair price for your vehicle.

If the car is a total loss it was likely towed from the scene of the car accident and not driveable. If the car is in storage, it is collecting storage fees. This means that you (or your lawyer) will need to work quickly with the insurance company to resolve the total loss, otherwise, the insurance company may not be willing to pay ALL of the storage fees.

What about a rental car?

If you're car is not drivable and you are not at fault for a car crash, then you are entitled to a rental vehicle. Not drivable does not necessarily mean that your car is a steaming pile of scrap metal... If your windshield is cracked in the accident or your headlights are damaged, then your car is technically not drivable because these are safety items. My office will assist in putting you in a rental car right away so that there is no disruption to your life and you can make your doctor's appointments and make it to work on time.

If your car is still drivable following an auto accident, then you will be entitled to a rental car while the vehicle is being repaired at the auto body shop. You are entitled to a vehicle similar to the one you currently drive. If you drive a truck for work, or a minivan because you have four kids, then the insurance company will have to pay the higher cost of renting these vehicles to accommodate you. Similarly, if you drive a Mercedes S class, the insurance company can not put you in a subcompact car.

The car accident lawyer that you hire, matters

Some personal injury law firms refuse to handle the property damage portion of your claim. This is because there is no money to be made from the property damage portion of your claim and it can be a lot of work for the law firm. I find this ridiculous, and in my humble opinion, you should find another attorney if you are told that they are unwilling to assist you with your property damage claim. Ignoring your property damage claim is ignoring a major part of your accident claim.

My firm not only helps you with your property damage claim for free but we will try to make the process as easy as possible for you. We will arrange a rental car for you right away while you are waiting for the insurance company to inspect and repair your vehicle. We will work directly with your body shop of choice and ensure that the process goes smoothly.