Welcome to a new week!  Drive safe and have a great day!!

Happy Wednesday!!  The weekend is just around the corner.  Drive safely on those wet streets!

In the State of North Carolina, dogs typically get “one free bite”.  This refers to the many statutes regarding North Carolina dog bites.  NCGS Article 1A, Section 67-4.1 (https://www.animallaw.info/statute/nc-bite-chapter-67-dogs-article-1a-dangerous-dogs) defines dangerous dogs as “a dog without provocation that has killed or inflicted severe injury on a persons”, or “has determined by the person or Board designated by the county or municipal authority responsible for animal control to be potentially dangerous because the dog has engaged in one of more of the behaviors listed in subdivision (2) of this subsection.”  B.  “Any dog owned or harbored primarily or in part for the purpose of dog fighting or any dog trained for a dog fight.”

2.  “Potentially dangerous dog means that a dog that the person or Board designated by the county or municipal authority responsible for animal control determines to have inflicted a bite on a person that resulted in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization or killed or inflicted severe injury upon a domestic animal when not on the owner’s real property or, approached a person when not on the owner’s property in a vicious or terrorizing manner in an apparent attitude of attack.”

3. “Owner means any person or legal entity that has a possessory property right in a dog.”

In laymen’s terms, this means that for an owner to be liable and strictly liable, the dog MUST either:

a) have inflicted a bite upon a person (thus the one “free” bite rule),

b) killed or inflicted severe injury upon a person when not on the owner’s real property, or

c) approached a person when not on the owner’s property in a vicious or terrorizing manner in an apparent attitude of attack prior to the attack which you are seeking damages from.

There are also many other exceptions to the N.C. Dog Bite statutes.  If you have been attacked by a dog in the State of North Carolina, it is very important that you seek legal assistance.  You may or may not have coverage.

In October of 2011, the N.C. legislature instituted a drastic change to the way our civil legal system operates.  With the passing of Rule of Evidence 414, attorneys for injured people could no longer introduce what was charged by medical providers; they could only introduce what was PAID or what was NECESSARY TO PAY an outstanding medical bill.

Rule 414 says that “evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied – and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied”.

How does this affect you?  Rule 414 coupled with the requirement that injured people attempt to mitigate their damages means that those individuals with health insurance are not forced to use their health insurance or have their recoveries reduced by what their health insurance would have paid to satisfy the bills.  Insurance companies have taken a hard line approach and are requiring injured people to submit all of their bills to their health insurance, whether the injured person wished to or not.  Injured people no longer get to choose whether to submit a bill to their health insurance, they are not forced to do so thanks to Rule 414.

If you have been injured as the result of the negligence of another, it is very important for you to contact an attorney to protect your rights.

“In the case of infant parties, the next friend, guardian ad litem, or guardian cannot consent to a judgment or compromise without the investigation and approval by the court.”

In Re Reynolds, 206 N.C. 276, 288, 173 S.E. 789, 795 (1934) (quoting with approval McIntosh’s N.C. Practice and Procedure in Civil Cases, at page 721).

 In North Carolina, technically EVERY minor settlement agreement must be adjudicated, or approved by the court.  What does this mean?  This means that if your child is injured, you need to hire an attorney as soon as possible to ensure that your child’s rights are protected. 

 Adjudicating a Minor Settlement:

A minor settlement typically requires 1) the filing of a complaint in the proper court, 2) the petition for a guardian ad litem, 3) an order granting the petition for a guardian ad litem, 4) a petition for the approval of a minor settlement, and 5) a judgment approving the minor’s settlement.  An experienced attorney should be able to navigate this formal and confusing process. 

 Proceeds from a Minor Settlement:

The proceeds from a minor settlement are usually deposited into the Clerk of Court office where the complaint is filed.  The funds are kept secure until the minor turns 18. 

 Waiver of Court Approval:

Sometimes insurance carriers are willing to waive the requirement of court approval.  This typically occurs in personal injury actions involving only minor injuries to the child.  When an insurance company waives the court approval requirement, they risk the child renouncing the settlement when he/she turns 18.  Oftentimes the insurance company requires the parent of the child to indemnify the defendant and carrier from any subsequent action by the child.      

You treat, you get better.  Do what the doctor tells you to do.  Make sure that you are going to all of the doctor’s visits – you are doing what you need to do, and you get better.  Once you get better, then call us and let us know.  Once you’re done treating, that’s when MY job really begins.  We request all of the medical records.  We compile them into a demand packet, which is a short story of how this crash happened and the medical treatment you received.  We send that out to the adjuster and the adjuster and I begin to negotiate.  You won’t hear from me while you are treating because there’s nothing I can do for you at that time.  Once I get the top number from the adjuster, I give you a call and we talk about it.  I tell you what that top number means for you and what that’s going to put in your pocket.  Then we make a decision – do we accept the top number or do we go to trial?  I bring you in if we have to go to trial and we talk about the costs and time associated with going to trial and the time needed from you.  That’s one thing we are not afraid of here at Dewey Ramsay & Hunt – we are not afraid to go to trial.

If a law suit is ‘frivolous’ it won’t make it past the judge.  The average American does not understand summary judgment and its significance to American Jurisprudence.  Most individuals attain their legal knowledge from such legal dramas as “Law & Order” or “Law & Order: SVU” or “Law & Order: Criminal Intent” or “Law & Order: We Only Show the Sexy Part of the Law” (ok, I may have made the last one up, but you understand my point).  These legal dramas emphasize the litigation and investigative side of the law and ignore the actual law, the procedural side of the law, or the “not so sexy side” (which is probably why “Law & Order: Trial by Jury” was canceled after only one season).

The American Judicial system understood the need for checks on ‘frivolous lawsuits’ long before ‘frivolous lawsuits’ became a part of the American Political and Social vocabulary.  In 1769, the then colony of South Carolina passed a rule which allowed a judge to decide summarily any civil action less than £20, as long as one of the parties did not demand a jury trial.  Millar, Three American Ventures in Summary Civil Procedure, 38 Yale L.J. 193, 195-203 (1928).  For centuries, Summary Judgment has acted as a tool to keep unwarranted litigation out of the court system.

The pertinent paragraph of Rule 56(c) of the North Carolina Rules of Civil Procedure reads as follows; “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is NO GENUINE ISSUE AS TO ANY MATERIAL FACT AND THAT ANY PARTY IS ENTITLED TO A JUDGMENT AS A MATTER OF LAW.” (emphasis added)  N.C. Gen.Stat. § 1A-1 Rule 56(c).

In a 1970 North Carolina Court of Appeals case, the Court made it abundantly clear the purpose of Summary Judgment in North Carolina.  Quoting a Fourth Circuit Federal Court of Appeals case, the North Carolina Court of Appeals said; “Summary judgment is to avoid a useless trial.  It is a device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts. * * * While a day in Court may be a constitutional necessity when there are disputed questions of fact, the function of the motion of summary judgment is to smoke out if there is any case, i.e., any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.”  Pridgen v. Hughes, 177 S.E.2d 425, 427, 9 N.C.App. 635, 638 (1970) (quoting Bland v. Norfolk and Southern Railroad Co. Inc., 406 F.2d 863 (4^th Cir. 1969).  To those of you who do not speak the abstract language that is legalese, Summary Judgment is used to get rid of the cases that should not be in the legal system, thus creating efficiency in the courts.

This is the calling card of ‘tort reform.’  So why do we need so called ‘tort reform’ when there is already a system in place which weeds out those cases not deserving of the courts time?  The answer; we have been led astray by those who wish the American Public to remain ignorant to their rights and the importance of the American Tort System.