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March 2, 2016 In Auto Accident, Civil Litigation, Personal Injury

Runners Hit by Cars: Advice from a Personal Injury Lawyer and Certified Running Coach

Runners Hit by Cars: Advice from a Personal Injury Lawyer and Certified Running Coach

It’s not uncommon for runners and other pedestrians to be hit by cars.  We’ve seen it in our personal injury practice, and we’ve seen it on the news. For example, in Midtown Memphis, two women were hit while using an intersection, and in Germantown, a man was hit and killed by a car.

Legal Rights and Duties of Runners and Pedestrians

Most people are aware of the Rules of the Road that apply to drivers, but what are the legal duties and rights of an injured runner or pedestrian?  A common misconception is that a pedestrian always has the right of way, but that is not necessarily true. Both drivers and pedestrians have certain rights and duties under the law.

A Runner’s Legal Duties

  • You have the duty to look before starting to cross a street.
  • You have the duty to exercise reasonable care for your own safety.
  • You have the duty to keep a timely lookout for traffic.
  • You have a duty to follow the pedestrian signals.
  • You have a duty to use sidewalks when they are available.

Crossing the Street at Intersections and Crosswalks

If the traffic signal is in your favor, you have the right of way at all intersections and crosswalks.

  •      Caveat: Having the right of way does not mean you can proceed “serenely oblivious of surrounding circumstances.”
  •      Caveat: Having the right of way does not mean you can step out in front of a car when it is too late for the car to stop.

Crossing the Street Anywhere Else

When crossing the street at any point other than in a crosswalk at an intersection, you have a statutory duty to yield the right of way to all vehicles.

What if there is no Sidewalk?

Always run or walk facing traffic.  This way you can see and react to oncoming traffic.

Safety Tips for Runners from Coach Star Ritchey

Obviously, it’s best if you are never hit by a car while running or walking! Star Ritchey , Certified Running Coach and Owner of Midtown Memphis Running Group, Star Runners, gives the following “go-to” safety tips for runners:

  • Run facing traffic. You never want traffic at your back.
  • Never assume that because you see the car, the car sees you.  Be prepared to move.
  • No headphones. If you insist on headphones, only wear 1 earbud.
  • Always wear reflective gear unless it’s daylight.
  • Always wear a Road I.D.

If you are hit by a car, call a personal injury lawyer.

Each case is unique and there are always exceptions to the rules. And remember, the driver of the car has legal duties, too.  If you are a runner or pedestrian and you have been hit by a car, don’t assume you’re automatically at fault. Talk with a lawyer who can give you advice about your particular case.  Don’t just blindly accept as truth what the driver’s insurance company is telling you about fault.

In Tennessee, we have what is called “Comparative Fault.” That means you may be able to recover for your injuries, even if you bear some portion of the fault, as long as your fault isn’t equal to or greater than the driver’s fault.  You need a personal injury lawyer who can sort through the facts and determine whether you are entitled to recovery.

If you are hit by a car, call Patterson Bray.

We have a team of experienced trial lawyers here at Patterson Bray. Our work is personal and we’d be glad to give you the attention you deserve. If you are a runner or pedestrian and you’ve been hit by a car, please call us at (901) 372-5003 or email us here.

Other Resources for Runners

The Tennessee Department of Transportation website lists the various laws that apply to runners, pedestrians, and drivers.

March 1, 2016 In Auto Accident, Civil Litigation, Personal Injury

Texting and Walking? Advice from a Personal Injury Lawyer

Texting and Walking:  Advice from a Personal Injury Lawyer

Do you walk and text? If you are like most people, you probably do.  This personal injury lawyer advises you to stop! While we know that texting and driving is dangerous and has been banned in Tennessee, research also shows that pedestrians who are distracted with their phones are more likely to be hit by a vehicle.  According to one analyst, the number of pedestrian injuries due to cell phone use tripled over a a 7 year period (2004-2010), and the numbers continue to rise.

What if a Car Hits Me But I was Texting While Walking?

Call a personal injury lawyer. If you were walking and texting when you were hit, the driver’s insurance company will probably say you were at fault, but that is not necessarily always the case.  You should still speak with a personal injury lawyer about the specific facts of your case. In Tennessee, we have what is called “Comparative Fault.” That means you may be able to recover for your injuries, even if you bear some portion of the fault, as long as your fault isn’t equal to or greater than the driver’s fault.  You need a good personal injury lawyer who can sort through the facts and determine whether you are entitled to recovery.

(1)  Don’t text and walk. If you are injured, it could reduce or even eliminate any damages you would have otherwise been entitled to.

(2)  If you are injured while texting and walking, don’t automatically assume you are at fault. Call an injury lawyer to make sure.

Call Patterson Bray. We Can Help.

When you need a lawyer, call Patterson Bray. Contact us at 901-372-5003 or email us here.  We take cases throughout Tennessee and Mississippi, including Memphis, Shelby County, Bartlett, Germantown, and Cordova.

February 25, 2016 In Estate Planning

Ask the Probate Lawyer: What to do if you’re named as Executor in a Will.

Ask the Probate Lawyer: What to do if you’re named as Executor in a Will.

If you’ve been designated to serve as the Personal Representative (sometimes also called Executor or Executrix) in a Will, you will need to hire a Probate Lawyer to handle the Estate in Probate Court. Don’t worry: the attorney fees charged by the Probate Lawyer will typically come out of the funds of the Estate, not from your own personal assets.

Once you’ve hired a Probate Lawyer, you’ll meet with the attorney and begin to gather all pertinent information. The attorney will prepare and file documents to petition the Probate Court to admit the deceased person’s Will for probate administration.

Can’t I just handle the business of the Estate Myself?

No.  In Tennessee, the administration of an Estate must be done with the assistance of a licensed  attorney. Many people mistakenly believe that if you are named as the Personal Representative in a Will, then you only need a copy of the Will and an I.D. to conduct business on behalf of the deceased person or the Estate, but this is not correct. To legally transact business on behalf of the Estate, you must be officially appointed by the Probate Court and present the proper authorization.

Do I have to go to Probate Court?

Yes, if the deceased person had assets or accounts that do not have a joint owner or a beneficiary named. You will have to go to Probate Court with the attorney to prove the Will and to be officially appointed by the Probate Judge as the Personal Representative of the Estate.  At this court appearance, the attorney will address the judge and you will be asked certain questions about the deceased person and the Will.  The Probate Judge will then review the Will and the proof and decide whether or not to admit the Will for probate. If the Will is admitted, you, as the Personal Representative, will then be sworn in as a fiduciary, and you will be issued “Letters Testamentary” or “Letters of Administration,” which will allow you to legally conduct business on behalf of the Estate.

Required Steps in Probate Administration

Once the Estate has been opened and you’ve been officially appointed to serve, you will complete the following required steps with the help of your Probate Lawyer:

(1)   Establish a separate bank account for the Estate;

(2)   Give notice to beneficiaries of the opening of the Estate;

(3)   Give notice to creditors and TennCare of the opening of the estate;

(4)   File affidavits regarding notice to beneficiaries and TennCare;

(5)   File annual accountings and inventories; and

(6)   Collect the deceased person’s assets and distribute them amongst the beneficiaries. 

Do I Get Paid for the Time and Expenses I Incur While Serving as a Personal Representative? 

Yes. A Personal Representative is entitled to reimbursement of expenses that he or she personally incurs in administering the Estate. A Personal Representative is entitled to a reasonable fee at the conclusion of the administration of the estate. However, the position is truly more of a responsibility than a profitable endeavor. There is a significant amount of work for the Personal Representative to do. The amount of the fee depends on a number of factors, which the Probate Lawyer will discuss with you. 

How long does the Probate Process take?

An Estate must remain open for a minimum of 4 months to allow creditors time to file any claims.  On average, it has been our experience that 6-9 months is a reasonable estimate of the time it takes to conclude the administration of an Estate if everything is straightforward.  In some cases, it can take 12-15 months.  If an Estate takes longer than 15 months to administer, it generally means that there has been a problem that has arisen during the process, such as a tax problem, a will contest, or even the presentation of an unknown heir.

Let us be your Probate Lawyer. We can help. 

Call us at 901-372-5003 if you need help. If you hire us, we’ll walk you through the entire process and do our best to make your job as Personal Representative as easy for you as possible. We handle probate cases throughout Tennessee and Mississippi, including in Shelby County, Memphis, Bartlett, Arlington, Germantown, and Cordova.

 

February 17, 2016 In Auto Accident, Business Litigation, Civil Litigation, Personal Injury, Uncategorized

Can my Fitbit be used as evidence against me?

Can my Fitbit be used as evidence against me?

By:            Erin Shea

As I was driving to work yesterday, I heard an advertisement for a Local News Story on Fox 13 about potential unintended consequences of using one of those trendy new fitness tracker devices, such as the Fitbit®. This piqued my interest for a couple of different reasons: (1) My husband bought me a Fitbit® for my birthday recently, and (2) Part of my job as a lawyer involves looking for information to either support or weaken a particular factual claim being made by someone in a lawsuit, and doesn’t a fitness tracker record accurate and factual information?

Using Fitbit® Data as Evidence in Court Cases

What could be the unintended consequence of using a fitness tracker? Relevant to my job as a lawyer, Fox 13’s story and this article discuss how fitness tracking data can make or break a court case.

I haven’t seen any reported appellate decisions in Tennessee yet discussing the admissibility of fitness tracking data at trial, but I’m sure they are coming. Also, even if the data never sees the inside of a courtroom, there are other uses for it, including using the information to secure other evidence or as a negotiation point during settlement talks.

For example, if a person in a personal injury suit is making a claim that they can no longer walk more than a few steps at a time, but the person’s Fitbit® data shows that the person is taking 20,000 steps a day, I would argue that the claim is being exaggerated.  On a somewhat related topic, I will never forget an old case I worked on where the injured person claimed he could no longer run races, but his social media accounts showed several post-race photographs that were taken after the accident.

Moral of the Story

Don’t forget that your electronic devices, including fitness tracking devices like a Fitbit®, are collecting data and information about you.  Think about how that data might be used to help or hurt you because you can be sure that the lawyers are!

Need a Lawyer?

Call  me or any of the other lawyers at Patterson Bray  at (901) 372-5003. We’d be glad to help you. We handle cases in Memphis, Cordova, Germantown, Bartlett, Arlington, Lakeland,  Shelby County, and throughout Tennessee and Mississippi.  If we can’t help you, we’ll point you in the right direction.

 

February 15, 2016 In General

Justice Antonin Scalia: Quotes from Erin Shea

Our Thoughts on Justice Antonin Scalia

No doubt your news feed is filled with posts about the passing of United States Supreme Court Justice Antonin Scalia. We at Patterson Bray are saddened by the loss of Justice Scalia.

“I had the pleasure of hearing Justice Scalia speak at a luncheon in Memphis in 2013. I specifically remember being in awe of his wisdom in discussing the Constitution and the practice of law.  It’s not every day that you are exposed to people like him, and that is a day I will always remember.”    Erin Shea

 

Patterson Bray

8001 Centerview Parkway, Suite 103

Memphis, TN  38018

(901) 372-5003

 

February 4, 2016 In Business Litigation, Civil Litigation, Contracts, General

Insurance Claim Deadlines May be Shorter Than You Think

Suppose your insurance company denies your claim – whether for a fire loss, water damage, theft, or storm damage. How long do you have to file a lawsuit against the insurance company? Well, it may not be as long as you think, so be careful! The best thing you can do to make sure you preserve your insurance claim case is to consult with an insurance lawyer as soon as possible.

Insurance Policies Can Shorten Time for Filing Suit

While an insurance policy is a contract, and the “regular” deadline (a/k/a the statute of limitation) on contract claims in Tennessee is usually 6 years, your homeowners policy almost certainly has a much shorter “contractual statute of limitations” provision hidden in the fine print. In most cases, that shorter contractual deadline is only 1 year, and sometimes even shorter.

Immunity and Loss Settlement Periods in an Insurance Policy

An insurance policy usually provides for a period of immunity, or loss settlement period, during which you can’t sue the insurance company. This is to give the company time to investigate your claim before having to respond to it.  Many policies provide for 45-60 day periods. In some cases, the immunity period may expire before they actually finish investigating your claim, or before you receive a payment or denial. Because of this, Tennessee case law provides that your time to file suit begins to run following the “accrual of the cause of action” against your insurance company.

What does “accrual of the cause of action” mean?

The “accrual of the cause of action” against the insurance company occurs – and thus the clock starts ticking on your deadline – when the immunity period expires, or when the insurance company denies your claim, whichever comes first.

In some cases, depending on what the policy says, an insurance company’s immunity period may be extended if it continues to actively investigate a claim and request information beyond the time stated in the policy. It is critical that you consult with an insurance attorney to determine the applicable deadlines in your insurance claim case.

Important Dates in an Insurance Claim

If you have an insurance claim, keep all of your claim-related papers in one place. Look at your policy and figure out the loss settlement period.  If you don’t have a copy of your policy, ask for one. Keep any letters or emails you send to or receive from the insurance company. Record, be aware of, and keep up with the following dates:

  • Date of loss
  • Dates of claim payments
  • Dates of correspondence or phone conversations with the insurance company
  • Date of Denial

Don’t Wait Too Late to Involve an Insurance Lawyer

Determining insurance claim deadlines can be complicated, confusing, and depends on a number of factors. The insurance company understands how these time frames and deadlines work, and because adjusting insurance claims and reading insurance policies probably isn’t what you do for a living, you are at a disadvantage, especially in a complex or large loss insurance claim.

Call us sooner rather than later if you feel like your homeowners insurance claim is not being handled or paid properly.

  • Insurance policy language is confusing and it doesn’t always mean what it sounds like.
  • Your insurance adjuster is not your advocate.
  • We know insurance law. We will apply insurance policy language to your advantage.
  • We understand how insurance deadlines work.
  • You’ve paid your premiums for all of these years. Don’t lose out on a technicality.

 

Let us help you with your insurance claim case. Call Patterson Bray at 901-372-5003.  We have offices in Memphis and Nashville. Don’t wait too late and lose your legal right to recover.

February 3, 2016 In Auto Accident, Business Litigation, Civil Litigation, Contracts, Estate Planning, General, Government, Medical Malpractice, Personal Injury

Lawsuit Deadlines: How long do I have to file a lawsuit in Tennessee?

Why are there statutes of limitation or lawsuit deadlines?

In Tennessee, there are lawsuit deadlines called “statutes of limitations,” so it is important to speak to a lawyer as soon as possible if you believe you may need to file a lawsuit.  If you wait too late, you may lose your ability to seek a remedy or recovery in court.

Statutes of limitation serve a number of purposes.  They promote stability in personal and business relationships; they prevent undue delay in filing lawsuits; they help to avoid uncertainty in pursuing and defending old claims; and they help to ensure that evidence is preserved and not lost due to the lapse of time, fading memories, or death of witnesses or parties.

What time limit applies to my case?

It depends on what kind of case you have. Even our courts sometimes struggle with which statute of limitation applies. Generally, a court looks to the “gravamen” of the complaint to determine which statute of limitation applies. Think of the “gravamen” as the “real purpose” or the “main point” of a lawsuit.

The Tennessee Supreme Court, in Benz-Elliott v. Barrett Enterprises  said that when determining the gravamen of a complaint in order to decide which statute of limitation applies, “a court must first consider the legal basis of the claim and then consider the type of injuries for which damages are sought. This analysis is necessarily fact-intensive and requires a careful examination of the allegations of the complaint as to each claim for the types of injuries asserted and damages sought.”

You may have multiple legal theories and claims available to you in your case, but those claims could have different statutes of limitation that will affect your ability to recover.  Because this analysis can be difficult, and it is to your advantage to include as many viable claims for recovery as possible, you should consult an attorney as soon as possible to discuss your case.

Statutes of Limitation in Tennessee for Common Claims

Below are statutes of limitation for common types of claims. There are others, so make sure and consult with an attorney to make sure you understand what time limit applies to your case.

  • Personal injury or wrongful death – 1 year
  • Property damage – 3 years
  • Conversion – 3 years
  • Breach of Contract – 6 years
  • Fraud/Misrepresentation – 3 years
  • Legal or medical malpractice – 1 year
  • Consumer Protection Act claims – 1 year
  • Sale of Goods Contract Claims – 4 years
  • Slander (spoken defamation) – 6 months
  • Libel (written defamation) – 1 year

Exceptions

There are certain exception to the statutes of limitation in Tennessee, but you should never assume an exception will apply to your case. For example, if a person took active steps to keep you from discovering an injury or claim (i.e., fraudulent concealment), then you may have additional time to file suit.

Courts will not allow you extra time to file suit simply because you did not know the applicable statute of limitation, or because you suffered an injury but didn’t find out the full facts or extent of your damage until later in time. Consult with an attorney as soon as you think you have a claim.

Don’t Lose Your Ability to Recover. Call us today.

Statutes of limitations and lawsuit deadlines can kill your case before it even starts. If you think you may have a legal claim against someone, please call us today at 901-372-5003 or email us here. Don’t wait too late and lose your ability to file suit or recover damages. Let the attorneys of Patterson Bray help you today.

February 1, 2016 In Business Litigation, Civil Litigation, Contracts, Estate Planning, General

I No Longer Want to Own Property with a Partner – How Do I Break Up?

I No Longer Want to Own Property with a Partner – How Do I Break Up?

Imagine you and a partner purchase a rental property in the hopes of generating additional income.  Or perhaps you jointly inherit some property.  You own the property as tenants in common, meaning that you each own a ½ interest. You’re each responsible for ½ the property taxes and expenses, as well as ½ of any rental income.

A few years later, you decide you want out.  The income (when there is any) doesn’t seem worth the headache, and in some years, you even wind up paying more than your share of the expenses because your partner can’t seem to keep a steady day job.  The two of you don’t get along anymore and you really just want out. What can you do?

The law in Tennessee does not require you to continue owning property jointly with another person if you don’t want to. If you can’t reach agreement with your partner about an exit plan, then you can file what is referred to as a partition lawsuit.    There are two ways a Court can partition, and it depends on the particular facts of any given case. You will likely need an attorney to help you navigate the particular circumstances of your case.

Partition “in kind”

If a Court partitions a piece of land “in kind,” it means the property will be physically divided among the co-owners – almost quite literally splitting the baby.  An example would be if two people owned a two acre tract of raw land and the Court simply divided it in half, giving each person one of the two acres.

Partition “by sale”

A partition “by sale” is exactly what it sounds like. The Court will order a sale of the property and then distribute the money proceeds to the parties. The  Tennessee Code provides that a party is entitled to a partition by sale if either (1) the property is situated such that it can’t be divided, or (2) when it would be manifestly to the advantage of the parties for the property to be sold instead of divided.   For example, a Court can’t split a house and give each person half, so it would instead order the house to be sold.

Expenses and Distribution of Income

What if you paid more than your share of expenses prior to filing the lawsuit, or what if you don’t think the rental income was distributed properly? In a partition lawsuit, you can ask the Court to award you that money in addition to what you are owed for your ownership interest. The key to recovering this additional money is proving the amount you are owed. Hopefully, you have kept, or can obtain, records concerning your income and expenses associated with the property. In some cases, you might be able to obtain financial records during the partition lawsuit that may help prove what you are owed.

Settlement or Partition Lawsuit?  We can help.

If you currently own a piece of property with another person and you’ve decided you no longer want to continue in the joint ownership, we can help you fashion a solution.  Filing a lawsuit should not be your first step in any dispute, but a partition action is an available legal tool if an agreement can’t be reached. We are experienced at helping our clients negotiate resolutions without the necessity of filing a lawsuit; however, because we are trial attorneys, we know our way around the courthouse and are prepared to file and handle a partition action on your behalf, if necessary.   Please call us today at 901-372-5003 if we can help you.

January 29, 2016 In Estate Planning

Estate Planning 101: Power of Attorney and Living Will

Estate Planning 101: Power of Attorney and Living Will

A common question we receive from our estate planning clients is:  “What is the difference between a Health Care Power of Attorney and a Living Will?” Some people even incorrectly believe that a Living Will is the same thing as a Health Care Power of Attorney. While the two documents relate to your health care decisions, they are not the same. Both are important when planning for disability and death.

What is a Power of Attorney?

A Power of Attorney is a basic estate planning tool that is useful for ensuring that your financial and health care decisions can be made in the event of your incapacity.

Financial Power of Attorney

With a Financial Power of Attorney, you appoint an agent who is authorized to act on your behalf with regard to financial tasks and decisions (such as the payment of your bills and living expenses) in the event that you become unable to effectively manage your own property or financial affairs.  This authority may be granted at the time you execute the document or you can elect to make it effective only in the event of your incapacity.

Health Care Power of Attorney

With a Health Care Power of Attorney, you designate an Agent to make medical decisions for you if you cannot express your wishes or make the decisions yourself.  In addition, your Health Care Power of Attorney authorizes your Agent to obtain copies of your medical records

What is a Living Will?

In conjunction with your Health Care Power of Attorney, a Living Will serves to inform your doctors and your Agents that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process.  Although the  Agent you named in your Health Care Power of Attorney will ultimately make this decision, your Living Will provides guidance to your named Agent concerning your wishes.  Any person can deliver your Living Will to your doctors if the Agent you named in your Health Care Power of Attorney is unavailable to make health care decisions for you.

What if I change my mind?

You can revoke (i.e., cancel) your Financial or Health Care Power of Attorney  and Living Will documents at any time while you have capacity.

Need help with a Power of Attorney or Living Will?

Fortunately, Tennessee law governs what type of language should be included in these documents. The language requirements provide uniformity so that financial institutions and hospitals are familiar with the documents and can act accordingly.

If you have additional questions about a power of attorney or living will, or if you are interested in developing an estate plan, please call us at 901-372-5003 or   email us here.    We are experienced estate planners and regularly practice in Probate Court.

We assist personal injury, estate planning, business litigation, and business organization clients in the greater Memphis and Nashville areas. Cities covered include Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding towns and cities.