Providing a statement to the insurance adjuster assigned to your claim

Providing a statement to the insurance adjuster assigned to your claim

Once a claim for bodily injury and property damage is submitted to an insurance company, they will assign a claims representative or claims adjuster and open a claim file.

Once the adjuster opens his file, he or she is likely to contact their insured for a review of the facts after reviewing the policy.  Once that happens, you can expect that the adjuster will reach out to you, the victim, for a statement.  While many lawyers will advise clients to remain tight-lipped about the incident to the insurance company while the firm investigates the claim, there is a different approach. The more information provided to the insurance company, the better the chance of showing more compensable pieces of your claim. This will make the claim of higher value. 

The initial statement taken by the insurance adjuster is simply to get a grasp of the overall claim and to determine how different, if any, the perspectives are from the insured and the victim.  The adjuster, at this stage, won’t go into minute detail, as he or she doesn’t have enough information about the claim yet.  In addition to asking facts, he or she very well might ask about glaring differences between statements of any witnesses.   

It’s very important to review your memory in your mind and discuss it with your attorney to make sure you don’t leave out any details.  This is likely your first statement, and this will be a benchmark statement that could be referred to throughout the claim or in trial.  If your story changes even in the slightest from this initial statement, you can be sure that it will be used against you often.

Discussion medical treatment 

In addition to the statement about the facts of the crash or incident that caused you to file a claim, the insurance adjuster will likely want to find out information about your injuries and your medical treatment.  It will be important to maintain a list of every single medical provider who has examined or treated you since the accident, along with a list of each pharmacy where you have purchased your prescriptions.

For these reasons, it is always smart to hire a veteran litigator and experienced trial lawyer who has been involved in these particular issues when filing an insurance claim and even presenting cases to a jury.  If you or a loved one has been injured or killed due to someone else’s negligence, contact a lawyer today.  


 

DUI/DWI Consequences

DUI/DWI Consequences

No one intends to be involved in a DUI. However, when we make an error in judgment concerning alcohol consumption and wind up being apprehended by law enforcement, the consequences are often a surprise to us in terms of severity, especially for those of us never in trouble with the law before. If you wind up in a position where you are caught driving drunk or impaired, it is generally a good idea to be aware of the consequences. Some states have some extremely stringent laws regarding impaired driving.
First Offense
In many states even the penalties for a first DUI are relatively stringent.  These laws were passed because of the huge amount of injury and death caused by drunk drivers. In many cases, a first offense can result in imprisonment, as well as fines, depending on Blood Alcohol Content (BAC) and the presence of any minors in the vehicle at the time of the stop. Many other states may initially require only probation instead of these stiff penalties. While some first-time DUIs are spared imprisonment, many are not.
First offenders can also have their driver’s license suspended, usually for around 3 months (but possibly for up to 1 year), although some states a allow a limited license to be used only to get to and from work.  In addition to a temporary license suspension, some states follow this with a period of requiring an Ignition Interlock Device (IID) fitted to their vehicle. This device requires the driver to blow a breath sample showing no alcohol before starting the engine.  The increased use of IIDs is thought to increase deterrence, as well as providing the fringe benefit of more information to be studied by lawmakers.
Later Offenses
As one might imagine, the penalties for second and third DUIs only become more severe because these later offenses cannot simply be ascribed to a mere act of poor judgment. For example, while a first offense can carry an imprisonment sentence of few days, a second offense under the law might be punishable by a longer stint in jail. License suspensions also increase in length with each conviction, often going from 180 days to as much as 10 years . This license suspension may be followed by a period of requiring and IID remaining on your car.
Many states also have an implied consent law. This law makes is a crime or grounds for license suspension for an apprehended driver to refuse to give a breath sample to the law enforcement officer.
These tougher drunk driving laws have been imposed by the efforts of groups such as Mothers Against Drunk Driving (MADD) who have marshaled the statistics that showed an increase in drunk driving fatalities. These zero tolerance policies can be a headache to contend with on a personal level, but they save lives, including the lives of potential drunk drivers.
Injured by DUI/DWI
If you or a loved one has been injured by a drunk or intoxicated driver, you should contact a Coeur d’Alene ID personal injury lawyer to help you get the compensation you deserve.
Driving under the influence is considered negligent, and if you’ve been involved in an accident with someone acting negligently, you may be entitled to financial relief.

Thanks to our friends and contributors from Bendell Law Firm for their insight into DUI/DWI and negligence.

5 Key Factors in a Slip and Fall Case

5 Key Factors in a Slip and Fall Case

Slip and fall accidents are one of the most common accidents during the holiday season. Most slip and fall accidents are caused by wet, dirty or defective floors. Most of these holiday accidents happen in grocery stores, parking lots and malls. If you find yourself toting a purse, packages or children through a crowded store this holiday season, make sure to keep a proper lookout for obstacles in your path. If during the busy holiday shopping season you find yourself a victim in an unfortunate slip and fall accident, here are a few important factors to consider before it’s too late.

  • Just because you got hurt does not mean you will recover.

Many people believe that if they are injured in a store, they automatically can recover for their injuries. That is not the case. If you have sustained injuries from a fall, you must be able to prove what caused you to fall before you get compensated. Merely owning or occupying land does not make that person or business liable for your injuries. There must be some form of negligence on the part of the owner or occupier of property before they are liable for your injuries.

  • The employees who are assisting you after your fall are not there to help you.

You should report your fall immediately to store personnel, and make an accident report. Even though you might be hurt or embarrassed, failing to do a report can ruin your case. Employees who arrive at the accident scene are there to gather evidence to help the store avoid paying you, not to protect you.

  • Pay attention to your surroundings, the accident scene can change quickly.

Store personnel often arrive with cameras, mops and wet floor signs after a slip and fall accident. They are not there to help you. They are building a case against you. Make sure to take pictures of what caused you to fall. Keep any wet clothes, shoes or pictures from your fall. Get names, addresses and phone numbers of any non-employee witnesses. All of this evidence will be gone once you leave the store.

  • Get and document all medical treatment.

If you have been injured in a slip and fall accident, you must get medical treatment for your injuries. The longer you wait to get treatment, the more difficult it is to prove a connection between your fall and your injuries. A good starting point is the local emergency room or family doctor. The stores insurance adjusters will question all treatment you receive, especially if you have pre-existing injuries.

  • Talk to a personal injury attorney before you talk to the insurance company.

Insurance adjusters who call to tape record and interview you are trying to help their client. Everything you say can be used against you in your case. Make sure to talk to an attorney before you talk to the adjusters.

“Apartment Managers Can’t Turn a Blind Eye to Crime,” says Apartment Crime Lawyer Memphis,TN Knows and Trusts.

As an apartment crime lawyer Memphis, TN  knows and trusts, I can tell you that in Tennessee, the law requires property owners to take reasonable measures to protect their tenants and guests from foreseeable criminal attacks.  Many apartment managers and owners fail to do this, and in some cases, innocent people living in or visiting apartment complexes or communities are injured as a result.

What is a foreseeable crime?

Tennessee case law states that the degree of foreseeability needed to establish a duty by an apartment owner to protect against criminal acts will almost always require that prior instances of crime have occurred on or in the immediate vicinity of the property. Courts will consider the location, nature, and extent of previous criminal activities and their similarity, proximity, or other relationship to the crime that resulted in personal injuries to an innocent victim.

Assessing Crime at an Apartment Complex

So, what is a property owner or apartment manager in Memphis TN supposed to do? The owner or manager can start by assessing the level of crime within the apartment complex and surrounding neighborhood. How is management supposed to know about crime? Many apartment managers commute to work from some other neighborhood and don’t even live in the apartment complex they manage, so they are disconnected from the community.  Even if a manager does live on site, the manager might claim he or she never observed any crime occurring, and thus had no reason to know security measures were necessary. Good enough? Not by a long shot. There are many tools available today for property owners and managers to use to assess crime as the first step in developing a reasonable security plan for an apartment community.

Reviewing and Monitoring Crime Levels 

As an apartment crime lawyer Memphis, TN counts on, I regularly obtain the following information while representing victims of apartment violence and shootings, so we  know that the same information is available to apartment owners and managers.

  • CAP Index® Reports– According to the company’s website, CRIMECAST Reports are designed to identify the risk of personal and property crimes at a particular location.
  • Crime Analysis Reports. In the City of Memphis, a property manager or owner can submit a Crime Analysis Search Request to the Memphis TN Police Department and receive a Crime Analysis Report.  Information can be requested for a specific address, apartment complex, police district, or radius around an address.  The Report generated identifies the number and types of crimes for the time period requested, the specific location of each crime, and the corresponding incident report numbers for each crime.
  • Review Police Incident Reports. In Memphis, TN, an apartment manager can request copies of police reports in order to understand the types of crimes being committed on or near a property.
  • Calls for Service. In Memphis, TN,  a property owner or manager can request the calls for service made to a particular address or apartment complex.
  • Statistics from Local Police Precinct.  A property owner or manager can also visit the local precinct, discuss crime in the neighborhood, and request and obtain information concerning crime statistics for the area.

Are you the Victim of an Apartment Crime or Apartment Shooting? If so, call the apartment crime lawyer Memphis, TN knows and respects! 

If you are the victim of a serious injury due to apartment crime, please call Patterson Bray today at 901-372-5003. We’ve helped others like you, and we can help YOU recover if apartment management failed to take reasonable measures to protect against foreseeable criminal attacks.  Patterson Bray is an apartment crime lawyer Memphis, TN  knows and trusts. We will meet or speak with you and discuss whether you might have a case at no charge.  Let us get to work for you.

Here are the experienced Memphis apartment crime lawyers at our law firm who will work on your case:

 

Tips for Driving Through Storms

Tips for Driving Through Storms

When you are behind the wheel, you always have to be alert to everything around you. This means that you not only have to be aware of pedestrians and other drivers on the road, but you will also have to be prepared for the onset of inclement weather. Weather can change at the blink of an eye, without warning. When you are driving and a storm suddenly hits, there are certain things you can do to stay safe. Here are a few tips for driving through storms from an experienced Personal injury lawyer Washington DC.

Be Prepared

First and foremost, you should be prepared when you go for a drive. Check the weather forecast in your area, as well as any area to which you may be driving. You will be better able to handle whatever comes your way as a result. You may even be able to plan alternate routes to take where the weather isn’t quite as severe.

Tell someone close to you about your route, destination and the time you plan on arriving. That way, you can always get help if your car stalls or breaks down during a storm. You should also have emergency equipment on hand, such as a flashlight, first aid kit, water, snacks and prescription medication.

Slow Down

During a bad storm that involves rain, snow, hail or wind, you should always slow down while driving. The roads can be very slick when they’re wet, which means your car can skid out of control and cause an accident. Strong winds can also make it challenging to drive, and can even give your car a push if they are very severe. Hail is dangerous and can divert your attention from the road. In addition, it’s important to leave more room between your vehicle and the ones around you during a storm.

Turn on Your Headlights

Turn your headlights on any time you drive in a storm, even if it is daytime and fairly light outside. Be sure to use your regular beams, and avoid using your high beams unless you are in an area where there are no drivers nearby. It is important to use your headlights at all times during a storm because visibility is decreased considerably when there is heavy rain or snow as it collects on your windshield and rear window. With no headlights on, it may be more difficult for other drivers to see you as well.

Wait it Out, if Possible

If it is at all possible, depending on the severity of the storm, you should wait it out before continuing driving. If you feel that you cannot comfortably drive when you get caught in a particularly bad storm, pull over. However, it is essential to avoid stopping near trees or power lines, as severe storms can result in them being knocked down. You want to avoid a potential disaster, not experience one that’s even worse.

If the storm you are caught in while driving is a tornado, park your car, get out and immediately seek shelter. Remember that you can always replace a car, but not your life or the lives of your passengers.


A special thanks to our authors at Brynn Law for their insight into personal injury cases.

What is the difference between a patent and a trademark?

What is the difference between a patent and a trademark?

Intellectual property is one of the most obscure areas of law, and many business owners, eager to protect their IP, need to know what protections patents and trademarks offer.  Often, you will be best served by consulting with a patent attorney about your intellectual property.  However, this provides an overview of the protections afforded by patents and trademarks.

A patent protects inventions.  There are actually three types of patents, utility patents, design patents, and plant patents.  Plant patents protect new asexually reproduced plants, including sports, mutants, hybrids and newly found seedlings, other than tuber propagated plants or plants found in an uncultivated state.

Design patents protect original ornamental designs for articles of manufacture, which includes almost anything that has ever been made, as well as graphical user interfaces for computers, smartphones and tablets as long as a portion of the display is shown.

Utility patents protect inventions that are new and an advancement on the current technology.  A utility patent can be directed to any manufactured good or industrial process based on the function or operation of the product.  Utility patents can be obtained from everything from software applications to transmission systems.  About 90% of the patents that are issued by the United States Patent & Trademark Office are utility patents.

Irrespective of the type of patent, the primary right that is granted by a patent is the right to exclude a competitor from practicing the invention embodied by the patent.

Trademarks, on the other hand, protect a business’s brand.  In particular, trademarks protect brands that are sufficiently distinctive to act as an indicator of the source of goods, services, and other economic activities. Trademark rights can be extremely valuable, and famous marks are frequently copied.  For example, many apparel manufacturers prominently display their marks, and competitors often counterfeit them.

 

IRS Eliminates Valuation Discounts for Family Owned Entities: TAKE ACTION NOW!

 

 The IRS Has Issued Regulations Limiting or Eliminating the Use of Valuation Discounts.

One of the key benefits of Family Entities over the last several years has been the opportunity for significant valuation discounts for estate and gift tax purposes for clients with taxable estates. Last year, we advised  in our Estate Planning Newsletter that we expected the IRS to issue regulations limiting or eliminating the use of valuation discounts for family owned or controlled entities. Earlier this month, the IRS finally issued those proposed regulations. The  regulations are set to virtually eliminate the use of family entity valuation discounts as an estate planning tool.

However, there is still time to take advantage of valuation discounts. But, you need to act now. 

What is a Family Entity?

A Family Entity is exactly as it sounds — a company (limited liability company, corporation or partnership) that is owned and controlled by the organizer and the members of his or her family.

What Are Valuation Discounts?

Traditionally, ownership interests of a Family Entity have been valued at a reduced or discounted value. The basis for the discount is lack of control, lack of marketability, and other factors that result from the entity structure.  An ownership interest in a Family Entity is often valued at 20%-40% less than the actual fair market value of the underlying asset. This means that you could transfer an asset to a Family Entity and then later transfer your ownership interest in the Family Entity (either through lifetime gifting or at death) at a value significantly less than the fair market value of the underlying asset.

The use of family entities to obtain valuation discounts is a well-tested Estate Planning tool. Other methods of Estate Tax Planning often do not provide the same benefits. Because this method of estate and tax planning has proven so effective, it is imperative that clients with potentially taxable estates take advantage of Family Entity Valuation Discounts before the new IRS regulations take effect.

What’s the Hurry?

Entities created and funded prior to the enactment of the new IRS regulations will be governed by the current (more favorable) rules. But, there is very little time left to take advantage of Valuation Discounts. While it is not yet clear exactly when the new regulations will become final, many Estate Planning Attorneys believe they could become effective as soon as December 1, 2016.  No one can be certain of the date, which is why you should act now.

Our Advice to You

  • We recommend that any client wishing to take advantage of Family Entity Valuation Discounts as an Estate Planning strategy do so well before December 1, 2016.
  • If you already have a Family Owned Entity, this is a good time to consider whether additional gifts or sales of ownership interests would be beneficial in order to maximize the value of the gift or sale.
  • Anyone with a current Family Entity should contact us  to discuss taking further advantage of the current IRS regulations.
  • If you are concerned about the value of your estate for Estate Tax purposes or  if you are interested in learning more about Family Entity Valuation Discounts, please contact us at (901) 372-5003 or email us here so we can determine if a Family Entity can yield significant tax and other benefits for you and your family.

2 Dead in Apartment Shooting at Wingood Manor Apartments in Memphis

Well, it happened AGAIN.  There was an apartment shooting at Wingood Manor Apartments this past weekend.

According to news reports, yet another apartment shooting occurred in Memphis over the weekend that left 2 young fathers dead: Irving Guy and Joshua Irby.

Of course, not all crime can be prevented, and not all crime that occurs at an apartment complex is the fault of the property owner.  However, we represent crime victims and their families, and in prosecuting civil cases against apartment complexes for wrongful death and money damages, we often find that large, out of town owners fail to employ reasonable security measures that could have prevented innocent people from becoming victims of violent crime.

 Read about one of our recent Memphis Apartment Shooting cases here.

  • If you or someone you know has been injured or killed at an apartment complex in Memphis, call Patterson Bray for help at (901) 372-5003. We are lawyers for apartment crime victims and their families.
  • Visit our page on Apartment Crime Law.  Sign up for our blog posts here.

Patterson Bray Wins on Motion to Dismiss

Victory for Patterson Bray!

Patterson Bray is happy to announce a victory in a business litigation case. Our strategy? A Rule 12 Motion to Dismiss. Our client, a former officer and employee of a factoring corporation, was wrongfully sued in his individual capacity by a former customer of his employer. Our client served as Chief Financial Officer, and had merely signed agreements on behalf of the company. The Plaintiff alleged that our client’s employer had misapplied payments and committed other improper acts in connection with their Factoring and Buyout Agreements.

Our Strategy

The Complaint contained numerous allegations against the factoring corporation, but its only mention of our client was that he was an officer of the company, and that, as an officer he was somehow responsible for implementing the policies and procedures that damaged Plaintiff.

After our firm was hired to represent the former officer, we carefully analyzed the Complaint filed against him in Federal Court. In our judgment, the claims in the lawsuit were neither valid nor properly stated, so we filed a Motion to Dismiss for Failure to State a Claim. See Federal Rule of Civil Procedure 12.

What is a Motion to Dismiss for Failure to State a Claim?

A motion to dismiss for failure to state a claim is filed at the very beginning of a case which argues, essentially, that a plaintiff’s claim is either not legally correct, or that insufficient facts have been alleged to suppose an otherwise valid legal claim.

When such a motion is filed, the judge must assume that all the allegations of the plaintiff’s complaint are true, resolving any and all doubts in favor of the plaintiff. For obvious reasons, then, such motions are usually very difficult to win. The corresponding benefit is equally obvious, though, because dismissal at this early stage allows the client to avoid most of the costs of litigation.

The Court’s Ruling in Our Case

The Federal District Court judge agreed with our argument and granted the Motion to Dismiss filed on behalf of our client. In dismissing the breach of contract claim, the Federal District Court Judge said:

A corporate officer cannot be held liable for a corporation’s debts merely because he exercises dominion or control over the organization. Schlater v. Haynie, 833 S.W.2d 919, 924 (Tenn. Ct. App. 1991). Likewise, a corporate officer signing a contract on behalf of corporation does not bind himself to the contract. Bill Walker & Associates, Inc. v. Parrish, 770 S.W.2d 764, 770 (Tenn. Ct. App. 1989). Instead, a court will only hold an officer liable on a contract if it appears that the officer signed the contract in his personal capacity.

Here, Plaintiff has alleged no facts showing that [the former officer] was a party to the Factoring Agreement in his personal capacity. The Factoring Agreement’s signature page clearly shows that [his] signature was in his capacity as CFO. (ECF No. 1-1 at 3.) Additionally, he is not even a signatory to the Buyout Agreement. Plaintiff’s Complaint instead apparently attempts to hold [the former officer] liable because he exercised control over [the corporation’s] actions.  However, Tennessee law does not allow this. See Schlater 833 S.W.2d at 924. Therefore, its breach of contract claim against [the former officer] fails.

In dismissing the Plaintiff’s additional claims of conversion and fraud, the Judge went on to say:

A director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character; he is not liable for torts committed by or for the corporation unless he has participated in the wrong.’” Cooper v. Cordova Sand & Gravel Co., Inc., 485 S.W.2d 261, 271–72 (Tenn. Ct. App. 1971).

Here, the only allegation against [the former officer] himself is that he “was responsible for implementing the policies and procedures that damaged Plaintiff,” or, in other words, acted as an officer of the corporation. Because Plaintiff’s Complaint lacks any reference to any tortious conduct on the part of [the former officer], it fails to state a claim against him for both conversion and fraudulent inducement.

This case was handled by Civil Litigation Attorneys Chris Patterson and Erin Shea.

Need a Business Litigation Attorney?

Call us at 901-372-5003 or visit our website to learn more about our services as business litigation attorneys.

We handle other kinds of cases as well, including: personal injury, apartment crime injuries, auto accidents, premises liability, wrongful death, contract drafting and review, general civil litigation, estate planning, wills, trusts, probate, business planning, and business entity formation.

Top 8 Things to Know About Tennessee Residential Property Disclosure Law

Top 8 Things to Know About Tennessee Residential Property Disclosure Law

If you are thinking of buying or selling a home, you may have questions about the basics on Tennessee property disclosure law. The Tennessee Residential Property Disclosure Act, Tenn. Code Ann. 66-5-201, et. seq., requires the Seller of a home to provide the Buyer with a Property Disclosure Statement.  Despite this law, there is still a large amount of civil litigation arising from defects discovered in a home after the Buyer has moved in. Be aware of these top things to know about Tennessee real estate property disclosure law:

Tennessee Property Disclosure Law

  1. Sellers are required to disclose the condition of the home, including any “material defects.” What does “material” mean? Generally, any fact or condition that might affect a Buyer’s decision to purchase the home.
  2. Sellers are only required to disclose based on the information they have.  Sellers are not required to have a home inspection, hire experts, or conduct an independent investigation to discover everything that might be wrong with their home.
  3. The Disclosure Statement is not a warranty. The disclosure form is not a substitute for a thorough home inspection.  If you are the Buyer, you shouldn’t just rely on the disclosure form. Hire your own home inspector.
  4. Some sellers are exempt from making disclosures. Common exceptions include sales or transfers between co-owners, new construction, purchases from lenders after foreclosure, auction sales, or if the Seller has not lived in the home within the 3 years before the Closing.
  5. Sellers are NOT Required to Repair Items listed in the Disclosure.  If you are the Buyer, be aware that Sellers don’t have to fix anything listed as broken or defective. If you want an item repaired, you must contract for it. In other words, both Buyer and Seller must agree in the final contract that an item will be repaired by the Seller before closing.
  6. Sellers ARE required to update their disclosures before closing. Sellers must update to address any material changes that have taken place since the original date of disclosure, or to confirm to the buyer that the original form is still accurate. Tenn. Code. Ann. 66-5-205.  If you are the Buyer, you should not close on a home without seeing an updated Disclosure Form signed and dated by the Seller.
  7. Representations in the Disclosure Form are those of the Seller only, and not the Real Estate Agents.  The Disclosure Act applies only to Sellers.  An agent can’t be sued under the Disclosure Act for information contained in a Seller’s disclosure form unless the agent is a signatory. Tenn. Code. Ann. 66-5-202; 66-5-208. However, real estate agents have certain disclosure duties pursuant to the Tennessee Real Estate Broker License Act of 1973.   Under the Real Estate Broker License Act, a real estate agent is required to “[d]isclose to each party to the transaction any “adverse facts” of which the licensee has actual notice or knowledge.”  Tenn. Code Ann. § 62-13-403.  What are adverse facts? Both Acts define adverse facts as conditions or occurrences generally recognized by competent agents that significantly reduce the structural integrity of improvements to real property or present a significant health risk to occupants of the property. Tenn. Code Ann. § 62–13–102(2); § 66–5–206. However, the definition of adverse facts found in the Real Estate Broker License Act also contains a third prong, for conditions or occurrences that “have negative impact on the value of the real estate.” Tenn. Code Ann. §62-13-102(2). See Ledbetter v. Schacht, 395 S.W.3d 130, 136 (Tenn. Ct. App. 2012).
  8. Any lawsuit against a Seller for a misrepresentation in a Disclosure Statement must be filed within one (1) year.  Any cause of action based directly on the disclosure law statutes will be lost if not filed within one (1) year from the date the buyer received the disclosure statement or the date of closing, or occupancy, whichever occurs first. Tenn. Code Ann. § 66-5-208.

Discovered a problem after closing?

If there is “trouble in paradise” with your new home and you think the Seller or a Real Estate Agent made a misrepresentation concerning the home, speak with an attorney as soon as possible.

While a lawsuit is not always necessary to resolve a legal issue, remember there are deadlines within which to file a lawsuit, if necessary.  An experienced litigation attorney can advise you of your options based on the particular facts of your situation.

Want to speak with an Attorney?

The attorneys at Patterson Bray are experienced litigation and contract lawyers. We understand real estate transactions and sales, and we know the disclosure laws applying to both home sellers and real estate agents and brokers in Tennessee.  Call us today at (901) 372-5003.

Additional RESOURCES:

Read more about Lawsuit Deadlines: How Long Do I have to File a Lawsuit in Tennessee?