Bill Connor
When serious car accidents occur, a number of things happen in the aftermath. Bystanders help those hurt. EMS arrives to perform treatment and transportation to Hospitals. Officers arrive on scene to handle issues like traffic and investigation. Insurance companies are called. In many cases, not only will law enforcement produce an FR10 and/or accident report, but may issue a citation to one or more of the people involved. Normally, it is to the person the officer deems to have committed some kind of Traffic Code violation and will also be the person that officers believes responsible for the accident in the FR10 and accident report. What does this citation mean for any potential personal injury civil case and what should be done about it?
First, it’s important to know that the officer’s FR10 and/or accident report which holds a party responsible would not be admissible in court and many times is incorrect. The officer normally arrives on the scene after the accident, and relies on hearsay of the parties and, maybe, third party witnesses. In many cases, it is solely the hearsay information from parties and the officer must make a determination of whom to believe. Most officers could not testify in court about opinion of fault. The officer could only testify to what he saw upon arrival, and could not even testify to hearsay (unless a party admitted fault, or some other unusual exceptions). The one exception is with an officer with some kind of unusually great accident reconstruction credentials, in which case he may be certified by the court as an expert. That is extremely rare.
If the officer issues a citation and the person receiving the citation is found guilty (including paying a ticket and thereby admitting guilt), that becomes part of the record and would be allowed as evidence at a civil trial. It becomes extremely powerful evidence to overcome, as the violation will almost always act as a “per se” for liability (assuming the violation was related to the accident and to prevent what occurred, which is almost always going to apply). Bottom line is that if a party is found guilty of the citation, they will almost certainly by found the liable party in any civil trial.
With that, it’s critical for parties to take citations seriously. If a party was injured by another and the offending party was issued a citation, the injured party should make the effort to attend any court proceeding for the citation to act as a witness for the prosecutor. In many cases, the person injured is the only witness, and if the injured is not available to testify the citation is dismissed for lack of evidence. If someone was issued a citation they should not have received (they were not actually guilty of the offense) it’s critical to fight the citation in court. In many cases, just showing up in court may be enough as witnesses may not be present. If a witness does appear, the injured party can cross examine and also provide testimony about what occurred. It’s up to the judge (or jury if requested) to determine guilt.
Because the citation is so important to any potential civil action involving personal injury, whether bringing a suit or being sued, it is a time to consider hiring an attorney. If looking to bring a suit, the attorney will likely not charge his time on handling the citation until the civil suit is resolved and after his contingency. For example: A lawyer does $500 of work on representation over the citation. He is successful with getting the citation dismissed, and successfully obtains a $30,000.00 settlement for that client over the personal injury. He will take his $10,000.00 contingency, and then $500 more for the citation. The client comes out way ahead. Note: The attorney would have to believe the party he is representing really was not the liable party to enter this kind of arrangement, as he get’s nothing if the civil suit is not successful.
Bottom line: Take seriously even small citations when they are related to personal injury.
A part of my practice I love is assisting Veterans with the VA claims process. I spent over 30 years as an Infantry Officer, and cherish my time with those who write that check to Uncle Sam: “Up to and including my life”. Only around one in twenty Americans are veterans today, so veterans should feel proud of their service, whether for a few years or a few decades, America is safe because of you. I enjoy being able to help veterans through the compensation claims process of the Veterans Administration. Some of this article will be personal advice and some will be legal/administrative advice.
First, a bit of personal advice which will transition into the legal. While on active duty or, if in a Reserve Component (National Guard or Reserves) during active duty or drill periods, it is critical to seek medical attention and keep records when injured. When later making VA claims, the first step in the process for VA claims officers is making the “service connection” for the injury. This means that not only must they find proof of the personal injury, but then proof the personal injury occurred on active duty (including active duty for training or reserve component drill periods). Note that the VA will receive database information about the veteran’s service, but may not have evidence of certain time periods on active duty. For example, a Senior ROTC Cadet injured while on active duty for training (training for commissioning) is covered by VA compensation. When VA receives the database information years down the road when the veteran makes a claim, they may only have the DD 214 starting when the cadet became an officer. The veteran would need to show evidence of being on active duty when the injury occurred. Part of the evidence is the documented treatment of the injury, but also the evidence showing the veteran was on active duty.
Second, when submitting the claim it’s important to gather whatever evidence is available of the injury occurring on active duty (or active duty for training or RC drill). It’s also critical to have all of the treatment records starting at the time of the injury, but going beyond into the time of making the claim. The determination of a disability rating starts with the determination an injury occurred on active duty, but then goes to the effects of the injury on the veteran. Issues like degradation of function (of injured body part) and restricted range of motion are generally determined by both records and VA (usually contracted) exams. The VA exam will usually be scheduled at some point after the claim, and the findings of that exam are critical. However, the prior medical records memorializing the injury (and effects of the injury) are equally critical.
Third, be ready for either a denial or a substandard rating (based on what the veteran knows of the injury). That is absolutely not the end of the claims process. The next step is a supplemental claim, though that is a claim in which the veteran presents information not already provided to the VA and requests that new information be considered. Along with the Supplemental claim, the veteran should consider a sworn statement (form 4138) in which the veteran explains the evidence and offers his sworn statement as evidence. This is where attorneys can assist. If the supplemental claim is denied, and the justification of the denial does not comport with the evidence provided, the veteran can request a “Higher Level Review” of that claim. The veteran can also request a higher level review on the denial of the original claim, but it’s usually best to submit a supplemental claim first, and at least include a sworn statement.
Lastly, if the supplemental and/or higher level review is denied, the veteran can continue with new supplementals (if he has new information not known by the VA). This is usually the point the veteran considers a true “appeal” versus supplemental claims or reviews. This takes much more effort and time compared with the claims and reviews. A “Veterans Service Officer (VSO)” can help, but it’s good to consider an attorney. My recommendation is considering an attorney after the first claims denial, as the attorney can help prevent the aggravation involved with further denials and the need to make a formal appeal.
I end by giving a “Thank you for your service” to all veterans!
In the cases, I have done with workers who have been injured while at work, I have run into clients (and associated employers) who have questions about the convergence of Workers Compensation and the Family Medical Leave Act (FMLA). In short, the FMLA requires employers allow their employees up to twelve weeks of leave for valid medical reasons. This normally comes after the employee has used any sick leave (and potentially regular leave), which is normally paid leave for a short period of time. FMLA requires that employers cannot terminate employees while on that leave, but does not require they pay the employees. Most do not. Normally, FMLA comes into play when the employee has a medical issue requiring absence from work but not related to work. That doesn’t mean FMLA cannot be used for time off work for workplace injuries, but that’s normally when workers compensation benefits take priority. Those benefits include not only time off work, but compensation of up to two-thirds of an employee’s normal wages. Sometimes, FMLA and Workers Compensation converge and that’s important to understand
Under Worker’s Compensation Law in South Carolina, employers with four or more employees must cover their employees with worker’s comp coverage. In the event of a workplace injury, the worker is covered regardless of fault (whether he or the employer is at fault). This coverage is both medical coverage for the injuries sustained, and coverage of the majority of the earnings while the employee cannot work. Once the employee is medically cleared for work, the compensation checks stop and the employee must return to work to keep his job (with the exception of being able to use regular leave or potentially sick leave with the agreement of the employer.
When an employee is injured and cannot work, he has the right to use FMLA and is not required to make a workers compensation claim. If he does begin FMLA, he is under the regular mandates for the twelve weeks and no requirement for pay during that time. Obviously, the employee would rarely choose that option, and would instead file for workers comp and receive pay while unable to work. The employer “could” begin FMLA for the employee, but the employee cannot be terminated while on workers compensation benefits and unable to work. As a practical matter, it makes little sense for an employer to begin counting FMLA days. If the employee has a separate medical problem after returning the work, he is still authorized up to the same twelve FMLA weeks, and any prior FMLA is not counted against that time. The only potential reason for an employer to run FMLA is the concern that the employee might continue remaining at home after being medically cleared. In that event, the employee would be at home without pay, and so that would make little sense for the employee if he is medically cleared to return to work (note: Employees can sometimes contest the determination they are able to go back to work, and if successful they will continue receiving comp checks and be able to remain at home).
Make sure to understand your rights and seek counsel if necessary
"NOVA Medical-14" by Tom Lesser Photography is licensed under CC BY-NC-ND 2.0
After serving in the Army for over 30 years, about half active duty and half reserve component, and multiple deployments, I have become personally familiar with the Veteran Administration (VA) System since my retirement in December 2020. I write this article as both a lawyer who practices some military law and also as a veteran who has learned nuances of the system through experience. This article will be focused on the initial stages of making a claim for VA disability compensation and a supplemental claim in the event of a claim rejection or unsatisfactory disability rating.
First, it’s important to start the VA disability claims process early. Without going into details, it is most advantageous to submit the VA claim before retirement or non-retirement discharge from service. In that event, your claim is processed more rapidly and at a higher priority than otherwise. After leaving service, it is still important to act diligently with making a claim or claims. If claims are made within a year of discharge (for this article, it is assumed the discharge is under honorable conditions), any disability compensation granted will be backdated to the time of discharge and payment will include backpay to that date.
In putting together the claim, it’s important to gather all potential evidence of the “service connection” of the claim and the seriousness of the disability. For an injury occurring during training or operations, the medical documents from the treatment of that injury are critical. It’s important that any injuries suffered while on active duty are memorialized by a visit to a military health care provider. Ensure that the medical records include the service connection of the injury. For example: “SM appeared for treatment for a twisted knee incurred during a parachute landing fall while on field training”. In addition to the initial treatment and evaluation records, it’s important to show records of follow up evaluation and/or treatment. Recording witnesses to injury is recommended, as their statements to witnessing the injury can become necessary evidence.
The VA will review all documentation submitted, and pull records from various databases they have available (military records, potential medical insurance records, etc.). They will assess each claim separately, so they may give a rating to one claim and deny another (for example, give a 10% rating for hearing loss, while denying an ankle injury). The level of rating will determine the monthly compensation check which will be directly deposited into the veteran’s account.
In the event a claim is denied or given a substandard rating for the level of injury, the veteran should consider immediately file a VA Form 20-0995, Decision Review Request: Supplemental Claim. The veteran has only one year to make this claim, and if successful in overturning a rejection or receiving a higher rating, the claim will backdate to the filing of the original claim (which backdates to discharge if the original claim is made within one year). In this claim process, the servicemember must provide new evidence not previously considered. This is the time to scour records and documentation and potential witnesses who can provide statements to provide new information. In the case of one claim, the rejection was based on the grounds the serious injury was preexisting to an “initial enlistment physical”. This was clearly incorrect, as the veteran had been injured at an Army School as a Cadet, and the physical referenced in the rejection was right before commissioning a year after the injury. The records of this person being injured as a Senior ROTC Cadet on Army orders (orders going beyond a month) were the critical documents that were not considered and the key to overturning the rejection.
In future articles, I will write about higher appeals procedures. It’s important to consider the help of an attorney with claims, as the lifetime effects of a claims decision go well beyond what would be paid to an attorney. That is particularly the case after a claims rejection. Lastly, thank you for your service!
By Bill Connor
One danger seldom discussed though commonly experienced is that of a neighbor’s aggressive dog. Most of us have had to deal with this issue at one time or another in our lives. Many are aware they can call animal control in the event of a dog attack, but many are not aware of the civil remedies involving dog attacks. I hope to answer the question of civil options after dog attacks, whether against you or a family member or against a pet.
First thing to know is that owners are responsible for their dogs. By South Carolina law, a dog owner is under “strict liability” for his dog attacking another person. If the dog bites or “otherwise attacks” a person, and the victim was in a public or private place (lawfully) and the victim did not provoke the animal the attacking dog owner can be held liable. “Otherwise attacks” goes beyond biting, do the case in which someone being knocked down or otherwise injured without a bite. This is a “strict liability” rule, and makes the owner liable even if he did not own a vicious breed of dog and/or did not have notice of the dog’s propensity to attack. Other states require those elements. In SC, if the victim provoked the dog that provocation can be a defense for the dog owner and if the victim was trespassing on the dog owner’s property that could be a defense.
In addition to that statutory claim for dog attacks, there are other causes of action to consider. In event of a dog attack, the “victim” owner of property could have an action in trespass against the dog owner. If the owner knowingly caused his dog to go on the property that could be an action in trespass. Additionally, depending on the vicious nature of the attack (for example, killing or maiming a relative in front of a person) a person could have a cause of action in negligent infliction of emotional distress. It might be the property owner, or someone else lawfully on the property of the attack. Lastly, if the dog attacks a pet, that could be a cause of action in damage to the victim dog (for the owner) or conversion if the pet is killed. In civil suits, the law holds pet animals to be chattel (personal property) and the valuation is at the normal value of the victim dog. If the dog must be treated, the treatment could be part of the cost. Punitive damages could come into play depending on how reckless the attacking dog owner acted in allowing the attack.
Always call animal control about a dog attack, but also know that you have your day in civil court for damages caused.
After a vehicle wreck involving personal injury in Orangeburg SC, it’s critical to understand the insurance coverage available to cover damages sustained. Damages are not just the medical bills, but also the pain and suffering that comes with injuries, loss of enjoyment, lost wages, potential disabilities, etc. In cases involving serious injury, the dollar amount of damages can go well beyond the insurance coverage of the liable party. In South Carolina, vehicle operators are only required to have $25,000.00 of coverage to pay damages to another party. That would not be nearly enough money to cover a situation involving serious injury and particularly if the serious injury involves multiple people. Though someone can be held in judgement beyond their insurance coverage, the old saying “you can’t squeeze blood from a turnip” applies in many cases. If the liable party doesn’t have the money, they don’t have the money. The good thing is that normally there are other insurance coverages involved. The first thing to consider is “Underinsured Motorist” (UIM) coverage. This is coverage the hurt party has that if for the situation of the liable party not having sufficient coverage of damages. Along with UIM coverage is also “Uninsured Motorist” (UM) coverage in the event the other party has no coverage (note: it is against state law not to have minimum limits of $25K, so it is likely a non-covered driver will also not be able to pay if held in judgment). UIM coverage is up to the amount of liability coverage if the driver has UIM. For example, if someone has the minimum limits of $25K, they will also have UIM of $25K. If the other driver cannot cover the damages, UIM covers an additional $25K. If the coverage is $50K, then liability is likewise $50K. South Carolina also allows “stacking” of UIM coverage for all the vehicles on the policy. Therefore, if the UIM coverage is $25, but there three cars under the policy, then total coverage would be $75. Also important to note: Policies have different coverage for multiple people injured. For example, a $25K policy is actually 25/50, meaning that $50K is available if multiple parties are injured. If two people are injured, each person has up to $25K. If three people were injured, they would have to divide up the $50K, and at least two parties would get less than $25K. For an example of how insurance coverage works in Orangeburg SC: An at-fault vehicle has minimum $25K coverage and causes damages of $55K to another person. The other person has a $25K UIM policy, and therefore has up to $50K for the liability coverage and UIM coverage. If he has another vehicle, he could “stack” a $25K UIM policy, and have the $5K coverage for the full damages. It is always important to look far and wide for coverage. In some cases, a person may be a “resident relative” of someone else in their home who has vehicle insurance coverage that may apply to that person, including UIM coverage. I have sometimes found this to be the case when we thought the person was uninsured but discovered the resident relative coverage. Have your attorney check for all possible coverage of all damages.
One of the tougher duties a person can perform is to act as Personal Representative of the Estate of a loved one. Normally, the Personal Representative, formerly called “Executor” for men and “Executrix” for women, is the closest relative to the deceased person. Closest relative is usually either the living spouse, if still married, or one of the living children. The estate could be quite simple, either due to Estate planning for transfers outside of probate (like “payment on death” provisions on joint bank accounts to another, or real estate transferred with a “life estate” provision to the decedent). The estate can also be very complex, with multiple real estate properties and multiple accounts going through probate and stock transfers. A unique issue in handling an estate as Personal Representative is prosecuting a personal injury survival action claim by the estate against a negligent party. Juggling these duties takes some work, as I will explain. First, if your loved one has a substantial and complex estate, it’s important to Petition for Personal Representative (PR) as soon as possible after death. You will have to have a death certificate (provided by Funeral Home usually), and a copy of the will if a will exists. Until someone is appointed PR, nobody has the same legal powers to conduct business of the estate in the same way as the decedent. For example, to get into the decedent’s bank account to put the money in the estate account, the bank will require Personal Representative Appointment orders by the Probate Judge. Same with handling real estate and investments. A duty of the Personal Representative is to maintain and safeguard the estate until it is distributed, and this can only be done properly with the PR appointment orders. Note: A Power of Attorney is only effective during the life of the person granting the power, so that is no help with the estate. While getting an inventory and appraisement of the estate and other matters associated with the estate in Orangeburg SC, it’s important to begin prosecuting any survival action claims as soon as possible. First, there are statute of limitations on bringing these lawsuits, and normally three years is the maximum time period from the accident/injury. Second, to prosecute the matter requires it be done by the Personal Representative during the processing of the estate. Once the estate is processed and closed, the PR duties and authorities end. The PR is prosecuting the claim on behalf of the decedent for the injury, pain and suffering damages suffered by the decedent before he died. It’s important to retain counsel (who will usually work the case on contingence and not hourly fee), and make the claim against the insurance company of the wrongdoer. In many cases involving death, other parties may have claims and all parties are seeking a limited insurance source of damages. The saying “first come, first serve” can apply in these kinds of cases, as the insurance company will only settle out to what’s available in terms of limits. The key is to get on top of the PR duties as soon as possible, and prosecute claims diligently while processing and distributing the estate. In many ways, it’s the last way to show love through actions to the person who died in carrying out wishes and seeking justice for wrongs done…
The most tragic result of an accident is the death of a loved one. In a number of such cases, someone is severely injured by another party’s negligence, and that injury results in death at a later point in time. When this occurs, the loved ones of the dearly departed are usually rightly focused on all the other things going on after death. They are going through the pain and anguish of the loved one. They are deciding how to handle all the various administrative and practical tasks associated with the death. Arranging a funeral, obtaining death certificates, finding the last will and testament are only the tip of the iceberg of the various necessary duties of the loved ones. One thing that must be considered at an early stage is handling the legal claim against the negligent party in the new circumstances. Importantly, the death does not end the claim, but changes the parties and adds new party claims. Let me explain. Whenever someone dies as the result of the negligent actions of another, there are two primary claims by two different types of parties against the negligent party. The first potential claim is the wrongful death claim brought by those dependent upon the person who died. For example, if a breadwinning husband and father dies, a wrongful death claim can be brought by his wife and children for what the death deprives of them. In particular, the father/husband’s future earnings to take care of his family. The key point about this claim is that it’s separate from the claim of the person who died. The damage award will be assessed for each loved one and given to them after resolution of the case (for the children, it may be in trust). The second type of claim is called a “survival action”, the claim brought by the estate on behalf of the dead. This claim is theoretically what damage the wrongdoer caused the dead before he passed, and is normally the assessment of the pain and suffering brought before death. If the person spent a great deal of time in pain prior to death, the damages would normally be more than if he died instantly. This is brought by the personal representative on behalf of the estate, and the award would go into the estate to be distributed to the beneficiaries of the last will and testament (or intestacy, by state law to heirs). Many times, the same parties who brought the wrongful death are also beneficiaries of the will, though not always. To give an example of how this works: The wife and children of the dead father have received a damage award for what the death caused them (being deprived of the father/husband’s salary). The wife and children were also named in the will, and when the survival action resolves, it is distributed by the terms of the will. Normally, the suits are brought while the estate is being probated, and is brought in one lawsuit with multiple parties and claims. The same wrongdoer (assuming one wrongdoer) would be paying out the various claims associate with the death. If insurance is involved and doesn’t cover all damages, this could be a time in which under-insured coverage comes into play. These kinds of cases normally settle before trial due to the high damages and limits on insurance coverage, but can work to take care of loved ones through a very tough time. Finding the right lawyer in these circumstances is critical.
After a car wreck or slip/fall accident and decisions come about bringing a lawsuit for personal injury, the question of venue can be the most important for success a successful outcome. “Venue” is essentially the court you decide to bring a case, and it must be a court with jurisdiction over the parties. In South Carolina (as in many other states), jurisdiction in a state Circuit Court comes by either the county of residence of a Defendant in a lawsuit or the county in which the incident occurred. For cases involving damages less than $7500, County Magistrate Courts are a possible venue, but only have jurisdiction over the case if the Defendant is a resident. The other potential venue is Federal District Court for cases involving either Federal law or diversity of the states of the parties in very high dollar cases. Federal jurisdiction is extremely rare in personal injury cases involving car wrecks and slip/falls, so we will focus on state Circuit Courts. In an accident, if the Defendant is hurt in the same county as his residence, venue is going to be that county. If the accident occurs outside the Defendant’s residence, that gives options for which venue to file. Additionally, if multiple Defendants are involved, that could offer more than two counties to file. This is where decisions are made which have high significance. There are a number of factors in deciding which venue to seek in the event of multiple venues available. First and foremost is to acknowledge that the jury pool will come from that County. Some jury pools, for various different reasons, are much better for those bringing cases. They are usually considered more “Liberal” counties and usually correspond to politically Liberal counties. They are more likely to offer more and higher jury awards. The more “conservative” counties are just the opposite and are much better for defending cases. As would be expected, the more conservative upstate counties like Greenville are better counties to defend cases, while counties in the most Democratic Counties in the Sixth Congressional District are most Liberal and offer the most and some of highest verdicts. Orangeburg SC, being in the heart of the Sixth District, is one of the best places to bring a lawsuit, and one of the toughest places to defend. Within venues, it’s also important to consider your own county residence and similarities to the people of the venues. If you live in the venue you bring the suit with a solid reputation, it becomes more likely the “jury of your peers” will include those who would be favorable to you. Additionally, some counties have similar attributes among the people which may or may not create a sympathy with you bringing a lawsuit. For example, there can be a demographic of people that are historically sympathetic to juries in the counties and historically receive the greatest jury awards. For example, some venues have large medical centers and therefore a high population of those in health care (and relatives/friends of those in healthcare). They will generally be more sympathetic to a plaintiff who is a health care provider in the local hospitals. This is something to discuss in detail with your attorney. One of the key things to understand is that the human connection with the jury, or potential for connection with the jury, is what drives the best results in a personal injury case. Pay attention to it, and plan wisely when filing suit.
After a car accident or slip and fall in Orangeburg South Carolina resulting in serious injuries, it’s important to know what to do about seeking redress. The most important decision after being injured by the negligence of another is which lawyer to choose to represent the matter. In most cases, multiple attorneys will be able to represent based on “contingence” and not payment of a retainer and hourly fee. On contingency, the lawyer will be paid a percentage of the award or settlement (customarily 1/3rd), and so it requires nothing to retain the attorney. The Client is responsible for costs involved, but that will normally be paid after an award or settlement. The key is in finding the “right” attorney, and beyond references and other indicators of superior abilities (awards, distinctions, reviews, etc.), the questions you ask the attorney when deciding to retain him are what counts. What are some of the best questions? First, it is important to verify the attorney will take the case on contingency. If not, that tells you that the case is not a “winner” in the mind of the attorney. He would normally ask for an hourly fee agreement only if he were worried about the likelihood to obtain money from the other side. Potentially, the issue is with proving liability or damages, but normally the issue is with the lack of insurance or means of payment on the other side. Either way, it’s not a good idea to hire him. Second, it’s important to verify the competence and ethics of the attorney. One of the best ways is to ask about the attorney’s Martindale Hubbell peer review ranking. Attorneys are peer-reviewed by fellow attorneys and judges, who know more than most non-lawyers about the attorney being rated. At top rating is “AV Preeminent”, meaning the absolute top in ethics and competency. The next level down is “BV”. This can be verified on the Martindale Hubbell website. After ensuring a contingency agreement with a top attorney, there are other questions that help cement the decision to retain him. Ask him about the venue the case will be filed if it is not settled, and the expectations for jury verdicts of that venue. You want the attorney to have his eye on potential trial, even though most cases settle prior to even filing. You also want an attorney who understands how to negotiate, and what numbers should be used in negotiation to obtain the highest settlement possible. You should ask him about his last three to five personal injury cases and how they resolved. How long did it take to resolve, and how far the cases settled beyond the medical bills involved. Be careful about lawyers who allow “file stagnation”, or allowing cases to linger for over a year before settling or filing suit (outside of unique circumstances or lengthy treatment). Lastly, it’s important to ask him about how his office communicates with clients, and how often you expect to receive communication. Use your “sixth sense” with the potential attorneys, and always prioritize a reputation for character and ethics. Once you have the right attorney, let him work the case, but continue to ask questions about the case to ensure he is on top of things. In the end, you will have the best result possible by the best attorney possible.
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