North Carolina’s Attractive Nuisance Doctrine | Liability for Injuries Off-Premises

July 27, 2012

Premises liability is the area of law that permits recovery of money damages when one is injured by an unsafe condition on another person’s property. An interesting aspect of premises liability law is the “attractive nuisance doctrine.” This principle holds that a property owner can be held liable for an injury to trespassing child if the injury was caused by a dangerous condition that was likely to attract children who could not appreciate the risk posed by the condition. If your child has been injured by such a hazardous condition, it is important that you seek immediate legal counsel, as these cases typically require significant investigation and litigation. To discuss your case with a Raleigh personal injury attorney, call Maginnis Law at 919.480.8526 or send an email using our contact page.

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Enforceability of Arbitration Clauses in North Carolina Employment Contracts

July 27, 2012

Companies employing skilled labor such as doctors, engineers, and architects frequently include arbitration clauses in their employment agreements. The benefit to the employer is that arbitration is typically less expensive and lengthy than the normal litigation process. It also allows the employer to have a say in who decides the outcome of the case. For the employee, there may be little to no benefit and it could be detrimental. Consequently, if you find yourself in a dispute with an employer attempting to enforce an arbitration clause, you should contact a knowledgeable civil litigation lawyer. The Raleigh attorneys of Maginnis Law can assist you by reviewing your employment agreement to determine if a particular dispute is subject to the arbitration clause. To speak with a civil attorney, call the firm at 919.526.0450 or 919.480.8526. Read more

Lawsuits against Cities and Counties | Sovereign Immunity under North Carolina Law

July 23, 2012

Just like corporations, governmental entities can be responsible for mistakes that cause serious personal injury, property damage, or financial loss. Regrettably, governmental entities in North Carolina are by default immune from damages for certain types of conduct. This means that even if you are injured or sustain serious financial loss due to the negligence of an employee of Wake County, for example, you may not be entitled to any money damages. Many governmental agencies have, however, voluntarily waived their sovereign immunity for certain types of conduct and/or damages. It is important that if you have been hurt by a governmental entity, such as a city or county, you contact a knowledgeable civil litigation attorney. The Raleigh civil attorneys of Maginnis Law can be reached at 919.480.8526 or by email using our contact page.

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Food Poisoning and North Carolina’s Implied Warranty of Merchantability

July 19, 2012

In the recent North Carolina Court of Appeals decision Williams v. O’Charley’s, Inc., the Court confirmed that a restaurant patron hospitalized as a result of food poisoning may sue the restaurant providing the harmful food for breach of the implied warranty of merchantability. The damages recoverable in such cases include medical expenses, lost wages, and pain and suffering. If you have been poisoned as a result of ingesting unfit food, whether purchased from a grocery store or restaurant, contact the Raleigh personal injury attorneys of Maginnis Law at 919.480.8526 or send a confidential email using our contact page. Read more

Personal Guarantees on Commercial Contract Collections and the Typical Requirement of Two Signatures under North Carolina Law

July 18, 2012

For many startup businesses, it can be impossible to obtain credit without offering a personal guarantee of an owner or officer. If the business is not successful, and cannot pay its debts, this guarantee can come back to haunt the owner or officer. Most creditors’ attorneys will file suit on a breach of contract claim against both the company and the guarantor. If you find yourself being sued on a personal guarantee or if you are a supplier with accounts receivable that may require a collections attorney, you need an experienced civil attorney familiar with North Carolina guarantee law. The Raleigh business litigation lawyers of Maginnis Law have successfully represented both Plaintiffs and Defendants in cases involving personal guarantees. To speak with one of our Raleigh civil litigation attorneys, contact the firm at 919.526.0450 or 919.480.8526.

When defending against a personal guarantee claim, the first thing a business owner should know is that, pursuant to North Carolina’s statute of frauds, all guarantees must be in writing. There is no such thing as an oral guarantee in North Carolina. Additionally, as recently confirmed in the North Carolina Court of Appeals case Tucker Materials, Inc. v. SafeSound Acoustics, Inc., there must be two separate signatures – one on behalf of the corporation or limited liability company and one on behalf of the guarantor individually. No matter the contract language, if there is only one signature, the creditor will likely be unable to prove a personal guarantee and will be limited to recovering from the assets of the company.

In Tucker Materials, the contract specifically provided “[t]he undersigned personally guarantees payment of applicant’s past due accounts . . .” The applicant in the contract was the company – SafeSound Acoustics, Inc. Presumably, Tucker Materials wanted SafeSound owner, Sherri Noble, to be personally liable. The Court of Appeals noted, however, that on the signature block, Sherri Noble had only signed once and, under her name was the title “President.” The Court found this was insufficient to establish a personal guarantee because “the nearly universal practice in the commercial world is that the corporate officer signs twice, once as an officer and again as an individual.” The Court entered Summary Judgment in favor of Ms. Noble, which meant the question of whether she was personally liable did not even go to trial.

The Tucker case is a prime example of why anytime a personal guarantee is involved, you are well served to have an attorney review the contract. Maginnis Law offers free consultations for all business clients, and our attorneys will review any alleged personal guarantee during the course of the consultation. If you wish to retain the firm, we extend several billing arrangements to our business clients including hourly, flat rate, and monthly retainer.

Maginnis Law represents clients throughout the RTP area, including Raleigh, Durham, Cary, Morrisville, Apex, Chapel Hill, Clayton, Garner, and Wake Forest. To speak with a Raleigh civil litigation attorney regarding your case involving a personal guarantee, call the firm at 919.480.8526 or 919.526.0450. You may also send a confidential email inquiry using our contact page.

 

 

Denial of Death Benefits Under North Carolina Life Insurance Policy

July 17, 2012

Consumers purchase life insurance policies to ensure that their families are financially cared for when they pass away. The life insurance policy is a contract whereby you pay your premium and, in exchange, the life insurer pays out the death benefit to your beneficiaries if you die during the policy period. In determining whether to write coverage, the life insurer typically performs an extensive investigation into your medical background and requires you to fill out a detailed application. It is important that you are honest and truthful because, if the insurer finds a misrepresentation on the application after your death, it will likely contend the contract is voidable and refuse to pay the death benefit.

In the recent case Meadlock v. American Family Life Assurance Company of Columbus, the North Carolina Court of Appeals found that even if a life insurance agent commits fraud on the application, the policy is voidable if the applicant had an opportunity to review the policy and the attached application. In Meadlock, AFLAC refused to pay the death benefit to Ms. Meadlock’s beneficiaries, because the application indicated that she did not have a previous heart condition when, in fact, she had suffered a previous heart attack. The Plaintiff’s husband sued AFLAC, alleging that the insurance agent had filled out the application and forged his wife’s signature. The Court of Appeals found that, even were this true, Ms. Meadlock had received a copy of the application with the policy and she had an affirmative duty to disclose the true facts.

The Meadlock case illustrates why it is important to always review your life insurance application and policy to ensure that it is correct. Sometimes, though, the questions can be unclear or ambiguous or there may just have been some honest mistake that’s irrelevant to the cause of the death. In these situations, if the life insurance company denies coverage, the beneficiaries of the policy may be able to pursue legal action.

The Raleigh civil litigation attorneys of Maginnis Law regularly represent insureds in first-party coverage disputes and are able to assist the beneficiaries of a denied life insurance policy. Our firm offers contingency and hourly fee arrangements for such disputes. To speak with a Raleigh life insurance coverage dispute attorney, call Maginnis Law at 919.480.8526 or send an email directly to one of our lawyers using the contact page. Our firm represents clients across middle and eastern North Carolina, including Raleigh, Durham, Chapel Hill, Cary, Morrisville, Apex, Fayetteville, Greensboro, and Pittsboro.

North Carolina Punitive Damages Law

July 16, 2012

Many people are familiar with the phrase “punitive damages,” but most do not quite understand what it means and the types of cases where such damages are available. In North Carolina, the majority of controlling law is found in Chapter 1D of the General Statutes. The Raleigh civil litigation attorneys of Maginnis Law are familiar with the provisions of Chapter 1D, and we can assist you or your business in recovering punitive damages in the appropriate case. We also regularly defend businesses against unsubstantiated claims for punitive damages. To speak with one of our Raleigh lawyers, call the firm at 919.480.8526, or send a confidential email using our contact page. Read more

Raleigh Construction Accident Personal Injury Attorneys

July 3, 2012

Construction sites are dangerous places. The Bureau of Labor Statistics estimates that there are approximately 150,000 construction accidents each year. In some circumstances, the injured party is a passer-by, but, more often than not, he or she is an employee of a contractor. The identity of the injured party is critical, as it can determine whether the case is properly presented in the North Carolina trial courts or in the Industrial Commission as a Workers’ Compensation claim. For some injured workers, they may have a valid claim in both venues, and that’s why it is important to immediately contact a knowledgeable personal injury attorney if you are involved in a construction accident. The Raleigh law firm of Maginnis Law can assist you with your third-party negligence claim. To speak with a Raleigh construction accident attorney, call the firm at 919.480.8526. You may also send a confidential email using our contact page.

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