March 28, 2012
Commercial Creditors who are seeking to recover their own property or property that they have a security interest in often will have to spend valuable time and resources in attempting to collect the property or the money value from their commercial debtors. For retail debt collection, the process is even more difficult. North Carolina does recognize the theory of replevin, or claim and delivery. Claim and delivery allows creditors engaging in debt collection litigation to use the civil court process such that the property of the debtor can be seized prior to obtaining a judgment. Contact the law firm of Maginnis Law, PLLC at 919.526.0450, or visit our contact page here for information regarding claim and delivery proceedings or any other commercial or retail debt collection civil litigation.
Raleigh Hit and Run Automobile Accident Attorney | North Carolina Uninsured Motorist Insurance Lawyer
March 22, 2012
One of the most frustrating varieties of automobile accident is the hit-and-run. In these cases, the injured party is often unable to ever identify the at-fault driver and, therefore, cannot pursue compensation from that person’s automobile insurance company. Fortunately, if you have purchased your own automobile insurance policy in North Carolina, your uninsured motorists coverage (UM) will likely provide compensation to which you are entitled. Getting your insurance company to actually pay a reasonable amount under this coverage can be an uphill battle, and, in most cases, they will treat you no differently than any other adverse claimant. The Raleigh car accident attorneys of Maginnis Law can assist you in recovering fair compensation under your policy and, if you were not at-fault, your insurance premiums will not increase. To speak with one of our hit-and-run accident lawyers, call the firm at 919.480.8526 or 919.526.0450, or send a confidential email via our contact page.
The standard North Carolina auto policy expressly permits an insured driver to recover against his or her uninsured motorists coverage when he or she is injured as a result of a hit-and-run driver. An important caveat is that there must be contact between the two vehicles. Therefore, under existing North Carolina law, if you are forced to swerve off the road to avoid a collision with a drunk driver who has come into your lane, you may not recover under your UM coverage.
The amount of UM coverage under your policy will at least equal the amount of liability coverage. Therefore, if you have purchased an automobile insurance policy with maximum liability coverage of $30,000.00 per claimant and $60,000.00 per occurrence (the minimum limits in North Carolina), the same limits will apply to your UM claim unless you have purchased additional coverage. This means that if you alone are injured because of a hit-and-run driver, you can recover up to $30,000.00 under your underinsured motorists coverage. If you and your entire family are injured, the maximum amount your family will be entitled to recover from the policy, in the aggregate, is $60,000.00.
One of the most critical rights in your entire automobile insurance policy is your choice to select arbitration to decide the amount you will be awarded under your UM coverage. With most personal injury cases, you either settle with the insurance company or have your damages determined by a jury trial. Insurance companies spend millions of dollars a year advocating for “tort-reform” to protect their pockets and, in the process, convince many potential jurors that most personal injury claimants are exaggerating or lying about their injuries. As a consequence, jury trials are extremely risky. Arbitration is often a better alternative. It allows three arbitrators, essentially judges, to decide fair compensation for your injuries. The results are more consistent and are typically fair to the injured party.
The Raleigh attorneys of Maginnis Law can assist you with your UM coverage claim by negotiating with your insurance company and, if necessary, representing you through the arbitration stage. We are able to handle automobile accident cases from around the state of North Carolina but practice most often represent injured parties in the Triangle, including Raleigh, Durham, Cary, Chapel Hill, Apex, Wake Forest, Morrisville, and Clayton.
For a free consultation with a Maginnis Law attorney regarding your hit-and-run accident claim or any other matter relevant to your uninsured motorist coverage, call 919.480.8526 or 919.526.0450. You may also send confidential email inquiries regarding your coverage and case through our contact page. We typically respond the same day. All consultations are free of charge, and our attorneys’ work on a contingency basis. Therefore, you pay no attorneys’ fees until we recover damages on your behalf.
March 21, 2012
When two automobiles collide, the vehicles are able to absorb a portion of the impact. Even this minimal amount of protection is lost when an automobile negligently strikes a pedestrian crossing the street through a crosswalk or walking along a road, street, or highway. The outcome of such accidents can be life-changing for the pedestrian. Unfortunately, automobile insurance companies frequently try to deny compensation to the injured pedestrian by erroneously relying on North Carolina’s outdated concept of contributory negligence. Whether the insurance company has denied your claim or you simply want advice as to the value of your claim, the North Carolina pedestrian accident attorneys of Maginnis Law can help. To speak with one of our Raleigh lawyers, contact the firm at 919.480.8526 or use our contact page to send a confidential email inquiry.
There are two major issues in any personal injury case, liability and damages. In the context of a pedestrian case, the driver of the automobile is almost always at least partially at fault. The issue becomes whether the pedestrian has done anything wrong or violated any laws that proximately led to his or her injury. A summary of the relevant statutes and rules for pedestrians and bicyclists is available through the North Carolina Department of Transportation. The summary can be accessed by clicking here. If the pedestrian is found even 1% at fault, he or she may not be entitled to any recovery due to North Carolina’s harsh contributory negligence rule. There are exceptions to this rule which can save your case, including the last clear chance doctrine.
If you can establish liability in your pedestrian injury case, the next issue becomes damages. There are a few major categories of damages that arise in almost all personal injury cases, including: (1) medical and pharmaceutical expenses (2) lost wages and/or loss of wage earning capacity and (3) physical, mental, and emotional pain and suffering. There are a few other categories of damages that are only available in certain cases, for instance punitive damages may be available if the driver was guilty of wilful and wanton negligence. This most often happens if the driver was intoxicated. You may also be entitled to damages for permanent disability if you have sustained a serious, life-changing injury.
The Raleigh pedestrian accident attorneys of Maginnis Law provide free consultations for all prospective new clients and are willing to travel to meet with you regarding your case. During our consultation we will attempt to address each of the important aspects of your case so that you may make an informed decision regarding whether retaining legal counsel is in your best interest. As with our other personal injury cases, pedestrian and bicycle injury cases are handled on a contingency basis so that you do not pay any attorneys’ fees unless you recover compensation for your injuries.
If you have been hit by an automobile, whether while walking or on your bicycle, contact the Raleigh personal injury law firm of Maginnis Law at 919.480.8526 or send a confidential email inquiry using our contact page. Our firm regularly represents clients throughout North Carolina, including Raleigh, Durham, Chapel Hill, Cary, Fayetteville, Greensboro, and Winston-Salem.
March 20, 2012
If you own businesses – whether small, medium, or large – indemnity and contribution are important facets of North Carolina law which you should understand. These theories entitle a defendant in a civil law suit to reimbursement for part or all of any damages paid to the Plaintiff. Such reimbursement can be recovered from co-defendants who have been held jointly and severally liable or from other third parties who may be “joined” to the lawsuit by the defendant. The Raleigh business litigation attorneys of Maginnis Law can assist you in understanding your rights under North Carolina law and can protect your interests in both state and federal court. To speak with one of our lawyers, contact the firm at 919.480.8526 or 919.526.0450.
In any civil action with more than one liable defendant, the Plaintiff may recover all of his damages from any of them and will usually pursue the defendant with the most assets. In that scenario, the defendant that has been required to pay will be entitled to contribution under N.C.G.S. § 1B-1. This statute allows the paying defendant to pursue the pro-rata share of the other defendants. So, for example, if there the defendant paid $150,000.00 of damages to the plaintiff and there were two other defendants, he can pursue $50,000.00 from each (equal to their 1/3 of the damages paid). The concept of contribution is more thoroughly discussed in our blog of March 12, 2012.
While contribution is certainly an important right, indemnity can be even more valuable. It allows a paying defendant to recover all of the damages paid from another responsible party. There are three situations where a paying defendant pay recover indemnity:
(1) Indemnity pursuant to an express contract: If you have a contract that states you are entitled to indemnity from some third-party, you can join that third-party to the civil action or file a separate action to recover any damages paid.
EXAMPLE: A roofing company hires a temporary employee from a staffing service. The agreement between the roofing company and the staffing service states that the staffing service must indemnify the roofing company for any damages it has incurred because of the actions of the temporary employee. The temporary employee drops a hammer on a homeowner. The homeowner sues the roofing company and the roofing company has to pay $25,000.00 in damages. The roofing company is entitled to recover the full amount from the staffing service.
(2) Indemnity under a “contract implied-in-fact”: This is similar to (1) except that the contract between the parties does not expressly discuss indemnity. The courts infer from the nature of relationship, and the intended agreement, that there is a right to indemnity. Otherwise, it will work just as explained in the Example above.
(3) Indemnity under tort theory of active/passive negligence: In this situation, two defendants have been jointly sued for negligence or some other tort. However, one’s bad actions were merely passive and secondary, while the others were active and primary. Basically, one party was primarily responsible and the other was not. If this is the case, and the defendant whose negligence was passive is forced to pay damages to the plaintiff, he or she can pursue complete indemnity from the active tortfeasor.
If you have been sued in a situation where you believe you may be entitled to indemnity, or would like to pursue contribution or indemnity for a judgment you have already paid, it is important you seek legal counsel. The Raleigh civil litigation law firm of Maginnis Law will work to defend you in any civil action and, if necessary, pursue your contribution and indemnification rights.
The Raleigh attorneys of Maginnis Law regularly represent individuals and businesses – small, medium, and large – in and around the Triangle area, including Raleigh, Durham, Cary, Chapel Hill, Apex, Wake Forest, Fayetteville, as well as Chatham and Johnston Counties. For a free consultation, contact the firm at 919.480.8526 or 919.526.0450. You will normally be able to speak with an attorney immediately and, if not, your call will be returned the same day. You can also submit confidential email inquiries via our contact page.
North Carolina Representation for Federal Anti-Piracy Lawsuits Under 47 U.S.C. § 553 and 47 U.S.C. § 605
March 16, 2012
Under the Communications Act of 1934 (47 U.S.C. § 605), it is illegal to publicize or use communications, such as pay-per-view cable television broadcasts, without authority to do so. A similar statute, The Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553) provides that “[n]o person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.” Among the most common anti-piracy lawsuits brought under these statutes are actions by distributors of pay-per-view fighting events. If you own a business entity sued under either of these statutes, or you have been sued individually, contact the North Carolina federal litigation attorneys of Maginnis Law at 919.480.8526 or 919.526.0450. You may also send a confidential email inquiry via our contact page.
One of the primary purposes of creating a business entity such as a corporation or a limited liability company is that it can protect the officers, directors, shareholders, and members from personal liability for obligations of the entity. For instance, if the company fails to pay a debt, in most situations, a creditor will not be entitled to pursue the personal assets of the shareholders of the company. However, this does not stop potential plaintiffs from attempting to do so. It is the regular practice of plaintiffs suing under § 553 and § 605 to bring the action against both the business entity and its owners. Plaintiffs routinely filing such lawsuits in North Carolina include Joe Hand Promotions, Inc. and J & J Sports Productions, Inc. These entities distribute the right to publicize pay-per-view events such as boxing and Ultimate Fighting Championship (UFC) matches.
If you have been sued by either Joe Hand or J & J, it is important that you immediately contact an experienced civil litigation attorney. While the action is not criminal in nature, there is significant financial exposure for you and your business. Joe Hand and J & J Sports frequently ask the Court for damages in the range of $100,000.00 to $200,000.00. With experienced counsel, the actual judgments are usually only in the $5,000.00 to $10,000.00 range.
Maginnis Law is a Raleigh business litigation law firm. Partner Ed Maginnis is admitted to practice before the Middle and Eastern Districts of North Carolina, and associate Shawn Howard is also admitted before the Eastern District of North Carolina.
To set up a free consultation regarding claims brought against you under 47 U.S.C. § 553 or 47 U.S.C. § 605, contact the North Carolina law firm of Maginnis Law at 919.480.8526 or 919.526.0450. To send a confidential inquiry regarding your case, please feel free to utilize our contact page.
March 13, 2012
For many victims of an automobile accident, a primary concern is whether the applicable automobile insurance policies are sufficient to cover their injuries. In North Carolina, motorists are only required to purchase an automobile insurance policy with liability limits of $30,000.00 per claimant and $60,000.00 per occurrence. For many personal injury claimants, these limits are insufficient to even cover medical bills, especially when surgery is involved. It is important for an attorney representing a claimant with serious injuries to determine the amount of coverage available, as this has a direct impact on so many aspects of the case. Unfortunately, insurance companies frequently refuse to disclose such information until forced to. There are two primary methods to require the insurance company to disclose, and the Raleigh car accident attorneys of Maginnis Law can assist with both. To speak with one of our Raleigh lawyers, call 919.480.8526 or 919.526.0450.
The first way to force an insurance company to disclose its policy limits is to file suit against its insured and serve written discovery requests for the information. The insurance company, who will hire an attorney for its insured, will be forced to respond to the requests or face sanction by the court. This does require initiating a lawsuit, though, which many claimants wish to avoid.
The second method to force an insurance company to provide their policy limits is by following the procedure set forth in N.C.G.S. § 58-3-3. This requires that an insurer of a nonfleet private passenger vehicle provide the injured party the limits of coverage if the injured party provides the following:
(1) A written release for the insurer to obtain the injured party’s medical records for the three years prior to the date on which the claim arose, as well as, all medical records pertaining to the claimed injury;
(2) Written consent to participate in mediation prior to the filing of a lawsuit; and
(3) A copy of the accident report and a description of the accident from the claimant.
After these materials have been provided, the insurer has 30 days to provide the insurance policy limits. Important to note is that automobile insurers frequently do not actually utilize your consent to participate in pre-filing mediation. They know that most automobile accident cases will be filed in Superior Court and, in North Carolina, mediation is required in Superior Court. Allowing the case to be filed, and then mediating, gives them the added advantage of being able to depose the injured party under oath.
If you are interested in representation in your automobile accident personal injury case, contact the Raleigh law firm of Maginnis Law at 919.480.8526 or 919.526.0450. Our civil litigation attorneys regularly represent clients from in and around the Triangle area, including Raleigh, Durham, Cary, Apex, Chapel Hill, Wake Forest, Fayetteville, Sanford, and Wilson. We take all auto cases on a contingency basis and provide free consultations and evaluations. If you would like to submit a confidential email inquiry regarding your case, please visit our contact page.
March 12, 2012
An important facet of North Carolina tort law is “joint and several liability.” This rule entitles a Plaintiff to recover all of his or her damages from any one Defendant, even if there are additional Defendants who are also found liable for a single injury to the Plaintiff. Under Chapter 1B of the North Carolina General Statutes, our state’s “Contribution” statute, the paying Defendant is then permitted to file suit against the remaining Defendants to recover their pro rata portion of the damages.
Joint and several liability is best understood with an example. Assume that Adam loans his truck to Bill, who he knows to habitually drink and drive. Bill then gets into the car after having consumed several drinks and causes a bad collision with Charles. The parties go to trial and the jury returns a verdict of $100,000.00 in favor of Charles against Adam and Bill; the claim against Adam being that he negligently entrusted his truck to Bill. Assuming for the purpose of this example that neither party has automobile insurance, if Adam has more personal assets than Bill, Charles may recover the full $100,000.00 from Adam. The issue then becomes, how does Adam force Bill to pay his portion of the damages. The answer is found at N.C.G.S. § 1B-1(a):
“[W]here two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.”
Chapter 1B goes on to limit recovery to the amount actually paid by the Defendant in excess of his pro rata share. Using the above example, if Charles is only able to recover $80,000.00 from Adam, then Adam may sue Bill for contribution of $30,000.00. Although we’ve used a personal injury example here, the statute also applies in the context of business litigation, or any other civil tort claim.
There are a couple of additional points to note in the context of contribution. First, the relative degree of fault is not taken into consideration, so it is irrelevant if Bill is 90% at fault and Adam only 10%. Second, contribution can be sought by a separate law suit or in the law suit establishing liability by motion of one of the Defendants.
The Raleigh civil litigation attorneys of Maginnis Law can assist you in understanding your rights and liabilities under North Carolina law. If you are entitled to contribution, you may also be entitled to “indemnity,” which can provide for a 100% recovery to a Defendant that was only secondarily negligent.
If you would like to talk about your rights under North Carolina’s contribution statute or indemnity law, contact the Raleigh lawyers of Maginnis Law at 919.526.0450 or 919.480.8526. You may also submit a confidential email inquiry via our contact page. Our firm regularly represents clients from Eastern North Carolina, including Raleigh, Durham, Cary, Chapel Hill, Wake Forest, Apex, Fayetteville, Morrisville, and Sanford.
March 6, 2012
Even passengers of large motor vehicles such as municipal buses can sustain serious personal injury. If you have been hurt as a result of a negligent bus driver or an operator of another automobile, contact the Raleigh bus accident attorneys of Maginnis Law. Our dedicated civil litigation lawyers will work to recover the full compensation to which you are entitled. To speak directly with one of our attorneys, call Shawn Howard at 919.480.8526, or submit questions and new case inquiries through our contact page.
In many ways, a bus accident personal injury claim works just the same as any other. To establish your case, you need to be able to identify the negligent party and prove all damages resulting from the conduct of that negligent party. In a bus accident, the negligent party may be the bus driver, the driver of a vehicle that struck the bus, or, in some cases, both. Your damages may include, but are not limited to, medical and pharmaceutical expenses; lost wages and/or loss of wage earning capacity; physical, mental, and emotional pain and suffering; and, in cases of willful and wanton negligence, punitive damages.
There are plenty of public transportation options in and around the Triangle Area, including Triangle Transit, Capital Area Transit (CAT), Durham Area Transit Authority (DATA), and Chapel Hill Transit. Many of these public transportation options are owned or operated by municipalities. Traditionally, this was a serious problem for injured parties, because municipalities had what is referred to as “sovereign immunity.” This meant that, in most cases, the city could not be sued for its negligence. However, it is common now for cities and counties to completely or partially waive their immunity by purchasing insurance. If this is the case, you may be entitled to recover damages directly from their insurer or from a municipal fund dedicated for tort claims. If your claim is against a town or city such as Chapel Hill, Durham, or Raleigh, it is important you speak to a lawyer, because the rules for bringing claims vary from municipality to municipality.
If you have been involved in a serious bus accident, contact the Wake County law firm of Maginnis Law. Lawyer Shawn Howard focuses his practice on representing personal injury claimants and can help you recover compensation for your bus accident injuries. Whether you are pursuing damages against Triangle Transit, CAT, DATA, or Chapel Hill Transit, the case will be taken on a contingency basis. This means that you pay no attorneys’ fees until there has been a recovery of damages on your behalf.
Maginnis Law is a Raleigh civil law firm that represents bus accident victims in and around the Triangle Area, including Raleigh, Durham, Chapel Hill, Cary, Fayetteville, Sanford, Wake Forest, Apex, and Morrisville. All consultations and evaluations are offered free of charge. You may speak directly with one of our lawyers (not a paralegal), by calling 919.480.8526. You may also send an email directly to the firm’s lawyers by using the contact page.
March 1, 2012
One of the first steps that a personal injury claimant should take following a North Carolina automobile accident is to obtain a copy of the investigating officer’s Crash Report (DMV Form 349). The Crash Report provides basic facts about the drivers involved in the accident, their vehicles, and the nature of the collision. In many North Carolina cities and counties, you must contact the police or sheriff department to obtain your copy of the Report. However, if your accident occurred in Raleigh, you may visit http://crash.raleighpd.org/default.php. If your Crash Report was generated by the State Highway Patrol, you may call 919.861.3098 to obtain a non-certified Report. The attorneys of Maginnis Law can help you obtain your Crash Report if you are having any difficulty. You may call attorney Shawn Howard on his direct line at 919.480.8526.
Among the information disclosed in the Crash Report is:
(1) Basic facts about weather, lighting, and road conditions;
(2) The officer’s opinion regarding what conduct of the drivers lead to the collision;
(3) Identification of the drivers and passengers, and the drivers’ respective insurance information;
(4) Whether any parties involved sustained an injury obvious to the investigating officer and whether an ambulance was called;
(5) Whether alcohol or drug consumption was expected and/or tested for;
(6) Location of damage to vehicles and estimated cost of repair;
(7) Estimated speed of vehicles before and at time of collision;
(8) Whether any tire impressions were made; and
(9) Whether any traffic citations were issued.
The Crash Report will also typically contain a “narrative.” This is the investigating officer’s description of how the accident occurred. It is typically based upon discussions between the officer and the drivers involved but may also be based upon the physical evidence, including the damage to the vehicles and any tire impressions on the road.
Crash Reports may be admitted into evidence over the hearsay rule, so it is important that your Crash Report is accurate. Therefore, if there is any discrepancy in your Report, you, or your attorney, should contact the investigating officer early on to discuss a possible amended Crash Report or at least have the officer aware of the discrepancy so that he or she may testify accordingly.
Maginnis Law is a Raleigh litigation law firm representing personal injury claimants throughout North Carolina, including Raleigh, Cary, Durham, Chapel Hill, Fayetteville, Apex, Wake Forest, Morrisville, and Clayton. If you have been involved in a serious motor vehicle accident, call our civil litigation lawyers for a free consultation and evaluation at 919.480.8526 or 919.526.0450. We will handle all negotiations with the at-fault driver’s automobile insurance company and, if necessary, litigate your case through to trial. If you would like to submit an email inquiry, please feel free to utilize our contact page.
March 1, 2012
Drunk drivers are one of the most common causes of high speed automobile accidents. In North Carolina, these drivers may be charged and convicted of Driving While Impaired (DWI) pursuant to N.C.G.S. § 20-138.1. If you have been injured because of the negligence of drunk driver, contact the Raleigh personal injury firm of Maginnis Law at 919.480.8526. Our civil litigation attorneys can assist you in recovering fair compensation for your medical bills, lost wages, and pain and suffering. In most cases involving drivers convicted of a DWI, we will also pursue a recovery of punitive damages.
North Carolina refers to a drunken driving offense as a DWI. In some jurisdictions the offense is still referred to as Driving Under the Influence (DUI). The relevant North Carolina statute, N.C.G.S § 20-138.1, provides that “[a] person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90‑89, or its metabolites in his blood or urine.”
A DWI conviction of the at-fault driver is important to your personal injury case in several respects. First, it is very strong evidence that he or she caused the accident. The conviction makes it less likely the insurance company’s adjuster or lawyer will aggressively pursue a contributory negligence claim. Driving impaired does not necessarily mean the driver caused your accident, but the intoxication does make it more likely than not that the jury will err on your side when it comes to the issue of liability.
Next, the fact that the driver was impaired will be highly persuasive to the jury in determining appropriate compensatory damages. The jury is more likely to want to fully compensate you if the at-fault driver was convicted of a DWI than if he or she had just rear-ended you out of a lack of attention. Finally, a DWI conviction means that you should get to the jury on the question of punitive damages. The jury will be able to award punitive damages of up to the greater of $250,000.00 or three times your compensatory damages. So, if your compensatory damages were $150,000.00, the jury could award you as much as $450,000.00 in punitive damages.
The Raleigh lawyers of Maginnis Law provide free consultations and evaluations to all victims of drunk drivers, including their passengers, and would be happy to represent you against the at-fault driver and his or her automobile insurance company. We regularly handle cases from Raleigh, Durham, Cary, Apex, Clayton, Morrisville, Wake Forest, Fayetteville, and the surrounding Triangle Area. We take all personal injury matters on a contingency basis so that you pay no attorneys’ fees unless and until we make a financial recovery for you.
If you or a family member has been injured in car accident caused by a drunk driver in Wake, Durham, Cumberland, Chatham, Orange, Alamance, Johnston, Nash, Moore, or Lee County, contact the automobile accident attorneys of Maginnis Law at 919.480.8526 or 919.526.0450. You may also submit a new case inquiry by visiting our contact page.