We are pleased to share this article with permission from Wallace Pierce Law. The article is originally posted at https://wallacepierce.com/accidents-nc/nc-car-accidents/.
There are only two ways to successfully resolve cases involving car accidents in North Carolina:
The first and most commonly known way to resolve your North Carolina car accident is to open a claim with the responsible insurance company and present your case for negotiation.
The other way to approach car accidents is to file a lawsuit, navigate your case and claim through the court system and process, and present your case to a judge and jury. This option is significantly more challenging, costly and risky; however, presenting your case to a judge and jury could ultimately result in a better outcome.
Most North Carolina cases involving car accidents are resolved through voluntary settlement between the insurance company and the injured party. This is often called an “out-of-court settlement,” as the claim was resolved without the court’s assistance. Out-of-court settlements typically happen within 30 to 90 days after an injured party has presented their claim or demand to the appropriate insurance company.
We have provided several forms, draft claim packages and releases to give you an idea of what this process will actually look like if you determine that your interests are better served by proceeding without legal representation. We highly recommend consulting with at least one personal injury attorney before deciding to proceed without legal representation. We have created a list of North Carolina car accident lawyers who offer free, no-obligation consultations.
Do I Have a Car Accident Case?
The basic law governing car accidents stems from something called Tort law. More specifically, most accident cases are governed by the common law concept of negligence. While these terms are not important for the purpose of what we are discussing, it is important that you understand that negligence is made up of four separate elements: (1) Duty, (2) Breach, (3) Causation and (4) Damages. While the noun “negligence” is commonly considered to mean “failing to take proper care in doing something,” negligence under the law is significantly more complicated, especially considering the application of fact to law.
To give you a better and more complete understanding of the elements of negligence, any claim for negligence must be able to prove each of the four elements:
One must be able to prove that a legal duty of care exists between the injured person and the negligent person, requiring the negligent person to act with reasonable care to prevent the other’s injuries.
Examples of Duty of Care:
- A driver has a duty to himself, his passengers and the general public to operate the vehicle in a safe and prudent manner in a rainstorm.
- A driver has a duty to reduce speed necessary to avoid a collision if other vehicles are slowing or stopping.
- A driver has a duty to pay attention to the traffic and road conditions at all times.
- A driver has a duty to ensure that his or her vehicle has been serviced regularly and receives the necessary repairs to operate safely upon the road.
One must be able to prove that a breach of the duty of care occurred, usually caused by failing to act with reasonable care.
Examples of Breach of Duty:
- A driver speeds during a rainstorm.
- A driver fails to reduce speed necessary to avoid a collision when traffic stops or slows.
- A driver fails to see a curve or speed bump in the roadway.
- A driver fails to change brake pads in their vehicle.
One must be able to prove that the breach of duty was the proximate cause of the injury that was sustained. In other words, if it were not for the breach, the injury would not have happened. This element is the most complicated and often will involve the testimony of experts.
An injury occurred or was caused by the breach of duty. The injury may be physical, mental, emotional or financial.
This explanation of negligence has been simplified to explain the basic concepts and elements involved. In reality, a car accident lawyer with experience and knowledge should handle the application of these elements, as negligence in North Carolina is confusing, complex and fraught with details and defenses.
If you have been injured as a result of someone else’s negligence, you may have a claim for injuries under North Carolina law.
It is recommended that you speak or consult with an experienced North Carolina car accident lawyer to assist you in better understanding the complicated laws that are in action related to your legal situation. An individual with the appropriate legal knowledge, training and experience, namely a car accident lawyer, is best suited for handling cases related to car accidents. It is important to acknowledge that many people handle their own car accident cases without the help of a lawyer. That being said, there are an abundance of resources available on this website for you to utilize in preparing your own personal injury claim. We have provided you with a step-by-step guide as well as forms that will explain the entire process to you.
What If I Helped Cause the Accident? – Contributory Negligence
If you have been injured in a car accident and you believe that your own actions may have contributed to your injuries, please stop reading and contact a lawyer. Please visit our Law Locator page for a list of North Carolina Injury Attorneys who may be able to assist you.
Contributory negligence is a very old and well-established law affecting North Carolina car accidents. This legal term represents a defense to a claim of negligence in North Carolina. The defense of contributory negligence states that if a person has injured you and you did anything to contribute to your own injuries, even in the smallest regard, you are not entitled to recover compensation. Essentially, the law of negligence requires that you as the victim have to be blameless to recover for your injuries. Interestingly enough, North Carolina is one of only four states that still follow the law of contributory negligence.
The law of contributory negligence is a defense to a claim of negligence, which is asserted by the at-fault party (or defendant) or on their behalf when applicable. Therefore, when the defendant has been accused of negligence, the ability to assert the defense rests with the defendant. Thus, if a defendant can argue and prove to the satisfaction of judge and jury that you as the plaintiff were contributorily negligent, you will be barred from any recovery under the law in North Carolina.
Imagine for a moment a hypothetical situation in which a plaintiff is attempting to cross a street when the defendant strikes him with a car. The plaintiff will assert a claim against the defendant for negligence in that the defendant negligently operated the vehicle upon the roadway. The plaintiff will claim that the driver possessed a duty to operate the vehicle safely and breached the duty by not operating the vehicle in a safe manner. As a result of the defendant’s actions, the plaintiff suffered damages. In response to these allegations, the defendant may argue that the defense of contributory negligence applies because the plaintiff was jaywalking when the collision took place. The defendant’s argument that the plaintiff’s actions resulted in her being partly responsible for her injuries means that the plaintiff may be barred from recovering for her injuries from the defendant.
The defense of contributory negligence may arise even when and if the defendant was clearly acting erroneously or contrary to law. For example, if the defendant was speeding and the plaintiff was jaywalking, the fact that the plaintiff’s actions resulted in her being partially responsible for her injuries may mean that the plaintiff is barred from recovering from the defendant for this incident.
If the opposing party has asserted the defense of contributory negligence or you feel that you may have contributed to your own injuries, please consult with a lawyer immediately. The defense of contributory negligence, if asserted and proved sufficiently, will act as a legal bar to your recovery. Please consider contacting a North Carolina car accident lawyer as soon as possible.
Who Do I Open a Claim Against?
North Carolina car accident law can be especially complicated. One of the more difficult issues facing car accident victims is not being able to understand or grasp the roles that the various parties play in an accident. Typically, there are three different kinds of parties to an accident: (1) the victim, (2) the at-fault party and (3) any witnesses. While it may seem clear who these parties are in an accident, it can become arduous to perceive who is acting on behalf of a particular party when the insurance companies, lawyers, police and investigators step into this process.
First, both the victim and the at-fault party will likely have insurance. These two insurance companies will be performing a different function in a similar manner. It is important to remember that if you have been injured in an accident, you may be able to seek compensation from a variety of sources, including the at-fault driver’s insurance and your own insurance.
What is the Insurance Claim Process?
If you have been in a North Carolina car accident, you may wish to consider approaching the at-fault party’s insurance company to negotiate your claim as opposed to proceeding directly with filing a lawsuit against the insurance company for damages. While a gross majority of insurance companies will attempt to evaluate the claim and entertain an early settlement in the hopes of avoiding costly and lengthy litigation, an early settlement is rarely acceptable. However, a timely and adequate settlement is always a good idea.
Immediately drafting and filing a lawsuit is not always the best answer. If your case exhibits a significant number of accident factors that would lead an experienced and knowledgeable personal injury lawyer to believe that you have a strong case, an adequate settlement is usually a better outcome than costly and drawn-out litigation.
Presenting an insurance claim is an excellent mechanism for discovering what the opposing party is likely to argue during a lawsuit. Beyond trial preparation, presenting an insurance claim is also a means to encourage pre-trial settlement of your case. If the insurance company, after evaluating your claim and case, determines that the likely outcome of litigation would be unfavorable to their own interests, it is often the case that the insurance company will make an offer to negotiate a settlement that is beneficial and agreeable to both parties. The following explains what you could expect during the course of pre-trial settlement negotiations with the insurance company:
Preparing an Injury Claim
Presenting your claim is very similar to filing a lawsuit. The similarities in the processes lie in the fact that your claim should not be pushed forward to the insurance company until it is perfectly ready. In the law, we often refer to this process as “ripeness.” Your case must only be presented to the opposing party when we know that the case is ripe. One of the most significant factors for determining the ripeness of your case is the progress of your medical treatment and care.
It is absolutely essential that you be in constant communication about your case and your treatment with your attorney. At Wallace Pierce Law, our approach to personal injury cases is to assist our clients in the management of their medical treatment and care plans. Your medical treatment and recovery, while essential to your continued happiness, is also essential to the success of your case.
It is important to note that the duration of this phase depends on the length of your treatment plan and recovery time. There are limited situations in which your attorney may determine that a claim should be presented before the conclusion of treatment. Finally, let your attorney know how they can help remind you of your appointments or assist you with transportation, if necessary.
Presenting an Injury Claim
After your case is ripe for presentation, your attorney will collect and evaluate all of your medical records and bills to determine the most effective way in which to present your personal injury claim. During this phase, your personal injury lawyer will gather your other out-of-pocket expenses, such as lost wages, travel expenses and medications, in order to prepare a negotiation document called a “Demand Letter.” Once all of this information is compiled and the Demand Letter has been drafted, your lawyer will create an entire “Demand Package,” which will be sent to the insurance company to initiate the negotiation of your claim.
During the negotiation process, the insurance company will typically review your Demand Package within 30 days. If liability is accepted, an “initial offer for settlement” will be made. Your attorney will contact you with this offer and discuss the initial offer for settlement. During this conversation, a discussion regarding “settlement authority” will likely take place. The attorney should not negotiate or settle your case without your express authority to do so. This phase either ends with an agreeable settlement being reached or, if not, a discussion regarding drafting and filing a lawsuit. Approximately 98 percent of cases are resolved without ever going to court.
It is very important that you are aware of the serious nature of your case. The insurance company and the adjuster will use any information they can gather about you and your injuries against you. This means you should avoid posting information about your case or injuries on social networking sites such as Facebook or Twitter. Your utmost vigilance is necessary when you are up against large insurance companies.