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March 24, 2016 In Auto Accident, Civil Litigation, Personal Injury, Uncategorized

Injured by a Drunk Driver?

The Sad Truth About Drunk Driving

Chances are, you either have been or will be the victim of a drunk driver in your lifetime. We know that intoxicated drivers cause personal injuries and deaths every day, but they also cause property damage. Even if you are not injured, your property may be. For example, drunk drivers often cause damage to other cars, houses, businesses, guardrails, signs, yards, and landscaping.

Drunk Driving Statistics

What are the odds that you have been or will be affected by a drunk or intoxicated driver? Take a look at these harrowing  statistics:

  • Every 2 minutes, a person is injured in a drunk driving crash.
  • On average, 2 in 3 people will be involved in a drunk driving crash in their lifetime.
  • The rate of drunk driving is highest among 26-29 year olds at 20.7%.
  • In 2014, 9,967 people died in drunk driving crashes. That’s one every 53 minutes. Another 290,000 were injured in drunk driving crashes.
  • Drunk driving costs the U.S. $132 Billion a year.
  • In 2010, drunk driving alone accounted for 18% of the total economic loss from motor vehicle crashes, costing the economy as much as $199 billion in direct and quality-of-life losses.

What does Drunk or “Intoxicated” Mean?

Tennessee law provides that a person is intoxicated when his or her physical and mental abilities are impaired as a result of drinking or drug use. The impairment must be to the extent that the person can’t act with ordinary and reasonable care like a sober person would under similar circumstances.

Can a Drunk Driver or Person Be Negligent?

Yes!  A drunk person is held to the same standard as a sober person.  Being intoxicated is no excuse for failure to act as a reasonably careful person.

We Represent Victims of Drunk Driving.

As a victim, you need a lawyer with the experience, drive, and knowledge necessary to compete with the insurance companies who are handling your claim. Otherwise, you’ll end up being a victim twice, and you might not even realize it until it’s already too late.  We are victim attorneys and we represent people who have been injured or damaged by drunk or intoxicated drivers. If you need help, we have offices in Memphis and Nashville Tennessee.  Please call us at 901-372-5003 or email us here.

 

March 17, 2016 In Civil Litigation, Personal Injury

Waivers and Releases Do Not Eliminate Liability for Gross Negligence: Ask the Injury Lawyer

Tennessee Law on Contracting Away Liability

Chances are you’ve signed a Waiver or Release of Liability. Maybe you were going whitewater rafting or visited an indoor trampoline or “bouncy house” park. Businesses providing recreational activities generally require you to sign a form with lots of fine print before you can participate. These forms generally absolve the business of liability if you get hurt. Is that legal? Yes.  But there’s one thing to remember: In Tennessee, a person or business cannot contract away liability for “gross negligence.” That’s why you need to consult with a personal injury lawyer if you are injured, but someone tells you they’re not responsible because you signed a Release or Waiver.

Tennessee law allows people to enter into contracts that say that ABC will not be liable and that XYZ is “assuming the risk,” including the risk that ABC might commit negligence.  However, the law says that such a contract will not protect ABC if ABC is guilty of gross negligence. Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App.1990).

What is Gross Negligence?

What is gross negligence and how is it different from regular negligence?  Regular negligence is the failure to use ordinary or reasonable care.  Gross negligence involves a higher degree of “bad” conduct and callous indifference to consequences. That’s why Tennessee law won’t allow people to contract away liability for gross negligence.  However, it’s harder to prove that someone committed gross negligence. You have to show:

  • The person committed ordinary negligence, and
  • The person acted “with utter unconcern for the safety of others, or … with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied . . .” Leatherwood Wadley, 121 S.W.3d 682, 693–94 (Tenn. Ct. App.2003).

Consult with an Injury Lawyer

If you are injured or hurt while participating in a recreational activity, you should consult with a personal injury lawyer. Don’t automatically assume that you can’t recover because you signed a Release or Waiver. A personal injury lawyer can examine the language of any form you signed and can advise you whether you might have a claim.

Need an Injury Lawyer? We can help.

Call Patterson Bray at (901) 372-5003 or email us here.  Visit our website to learn more about us and our work. Offices in Memphis and Nashville.

March 14, 2016 In Business Litigation, Civil Litigation, Contracts

Insurance Company Bad Faith? Ask the Insurance Lawyer

What You Need to Know about Insurance Company Claims

The overwhelming majority of insurance claims are fairly handled and paid without complication. But, some are not. While there are a number of reasons why an insurance claim might be denied or why you might not get paid what you think you are owed, one thing is certain in Tennessee:  An insurance company must handle your claim in good faith. If you think your insurer is acting in bad faith, consult with an insurance lawyer.

Tennessee Bad Faith Statute

If an insurance company does not act in good faith in handling an insurance claim, then it may be subject to bad faith penalty damages. Tennessee Code Annotated  56-7-105  says that if an insurance company’s refusal to pay a claim was not in good faith, then then the company may be liable for up to 25% of the loss amount, measured by the additional expenses incurred by the policyholder. So, if your loss is $100,000, you could recover up to an additional $25,000 if the insurance company didn’t act in good faith.

What is Bad Faith? What is Good Faith?

Every case is unique and it depends on the circumstances.  That’s why you need to consult with an insurance lawyer. As a general matter, it is difficult to prove that an insurance company’s denial of a claim was not in good faith.  The policyholder has the burden of proving bad faith and the following principles in Tennessee case law favor the insurance companies:

  • Delay in settling a claim does not constitute bad faith when there is a genuine dispute as to value, no conscious indifference to the claim, and no proof that the insurer acted from any improper motive.
  • If an insurance company unsuccessfully asserts a defense and the defense was made in good faith, the statute does not permit the imposing of the bad faith penalty. So, even if the insurance company loses or was wrong, it doesn’t necessarily mean that the company acted in bad faith.

Before joining Patterson Bray, I worked for almost ten (10) years at an insurance defense law firm representing insurance companies.  I cannot recall a single time that I was not successful in eliminating the bad faith portion of a lawsuit before the case made it to trial. I would add that, in most cases, the bad faith claim was simply thrown into the lawsuit, as if an afterthought.  I say these things to stress that it’s an unusual case when the bad faith penalty is actually applicable, but that does not mean you don’t have a claim for bad faith. Ask an insurance lawyer to be sure.

Unfair Claims Settlement Act

Tennessee also has what is referred to as the Tennessee Unfair Trade Practices and Unfair Claims Settlement Act. While the Act does not create a private right of action, it does create standards and rules that insurance companies must follow when handling claims. The Act provides at least some level of guidance concerning activities that might be considered to evidence bad faith.

What to Do if You Suspect Bad Faith by Your Insurance Company

  • Read your insurance policy. Make sure that you are in compliance with the “Duties After Loss” section.
  • Keep good and organized records.
  • Ensure that all of your communications to the insurer are kind and courteous and that they exhibit cooperation.
  • Keep a timeline of relevant communications and events that support an allegation of bad faith.
  • Get an insurance lawyer involved sooner rather than later. Insurance policies are full of deadlines and there are specific procedures that are important in preserving a claim of statutory bad faith against an insurer.

Need an Insurance Lawyer? We can help.

Call Patterson Bray at (901) 372-5003 or email us here.

Visit our website to learn more. Our Memphis office is conveniently located at 8001 Centerview Parkway, Suite 103 Memphis, TN 38018,  near the intersection of Walnut Grove and Germantown Parkway.  We accept cases throughout Tennessee and Mississippi, including Memphis, Bartlett, Cordova, and Germantown.

 

March 10, 2016 In Auto Accident, Civil Litigation, Personal Injury

Should you apologize after a Car Accident? Ask the Personal Injury Lawyer

Some people say “I’m sorry” because they don’t know what else to say in an uncomfortable situation. Others say “I’m sorry” to express sympathy or concern.  Some people say “I’m sorry” because they want to apologize for a situation they’ve caused. So, what would a personal injury lawyer tell you about apologizing?

What’s the legal effect of saying you’re sorry?

Suppose you’re in a car accident and it was your fault. Without a doubt, you know the other driver didn’t do anything wrong.  You can see that the other car is damaged and the driver appears injured. Should you apologize or admit fault?

Or, what if you’re in an accident but you’re not sure about who was at fault? You can see the other driver is hurt, so like any good Southerner, you go over and instinctively say, “I am soooooo sorry. Are you alright? Do you need an ambulance?” Have you just admitted liability for the car accident?

“I’m Sorry” = Not Admissible to Show Liability

Tennessee Rule of Evidence 409.1 addresses apologies and saying “I’m sorry.”  The Rule provides that certain statements and actions reflecting sympathy for an injured person are not admissible at a trial. The Rule is designed to encourage settlements. The underlying theory is that a settlement is more likely if a person is free to express sympathy to the injured person without making a statement that would be considered an admission of liability.

Statements of Fault are Admissible

Rule 409.1 only extends to “benevolent gestures” and does not exclude statements of fault. If you are a victim in an accident and someone tells you it was their fault, write down their exact words. This evidence could help your injury lawyer prove liability and can increase your chances of recovering damages. If you tell someone that you were at fault for an accident, then your statement will most likely be admissible as evidence if a lawsuit results.

Moral of the Story

A simple apology can go a long way toward making an injured person feel more comfortable with settling a case rather than filing a lawsuit. People like to receive apologies. Be human. Feel free to say “I’m sorry”, but be careful about statements of fault.

Need a Personal Injury Lawyer?

Call Patterson Bray at (901) 372-5003 or email us here.  We have a personal injury lawyer for you. You can also visit our website to learn more about our approach to personal injury work  and some of the results we’ve achieved for our clients, with offices in both Memphis and Nashville.

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 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 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.