September 25, 2012
Underinsured motorist coverage (UIM) is a type of automobile insurance that helps protect you in the unfortunate circumstance where you are injured by a driver with an insufficient liability policy. For example, if you a struck by a driver carrying the North Carolina minimum limits of $30,000.00/$60,000.00, this would mean that you could recover only $30,000.00 from his or her policy. If you had suffered $75,000.00 of damages, a recovery under just this policy would clearly be inadequate. This is where UIM jumps in to act as a safeguard. If you had purchased $100,000.00 of UIM coverage, it would permit you to recover the remaining $45,000.00 of your damages from your own insurance policy.
If you have a valid automobile negligence claim and your case is taken all the way to trial, and a judgment is obtained against the negligent car driver in excess of his liability limits of their car insurance policy, the process of claiming of claiming UIM funds is not that complicated. So long as any UIM insurance carriers were placed on notice of the case, and given an opportunity to participate, they are required to pay their portion of the judgment as provided under the insurance policies and applicable law. However, if you are like most folks, and hope to settle your claim rather than face trial, you should know that the procedure can be difficult and time consuming. Generally, you should not attempt to handle an underinsured motorist coverage claim without the assistance of an attorney.
Your automobile insurance policy most likely allows for a right to binding arbitration as to any dispute involving UIM. This right may be exercised by the injured party when he or she and the UIM carrier disagree as whether there is a right to recover damages from the owner of the uninsured motor vehicle or they do not agree as to the amount of damages that would be recoverable against the uninsured driver. Even before this step, though, there must be an “exhaustion” of any applicable liability insurance policies.
The North Carolina Court of Appeals, in the case Creed v. Smith, recently clarified that exhaustion occurs when there is a tender of liability insurance limits. As a practical matter, this means that your UIM carrier may not cheat you out of the right to arbitration by advancing any funds offered in settlement by the liability carrier. This is what many of the insurance companies were attempting to do before the Creed decision. They hoped to avoid arbitration because they knew that jurors are more easily persuaded by their attorneys’ often-times baseless medical arguments than are experienced arbitrators.
The Raleigh personal injury law firm of Maginnis Law represents clients involved in serious automobile accidents and can assist you with your UIM claim. We offer free consultations from our downtown Raleigh office. All cases are handled on a contingency basis, meaning you pay attorneys’ fees only if we settle your claim or recover a verdict at trial.
To speak with a Raleigh underinsured motorist coverage attorney, call Shawn Howard at 919.480.8526 or Ed Maginnis at 919.526.0450. If you would like to send a confidential email to our Wake County UIM lawyers containing the details of your case, please use our contact page. The firm regularly represents clients from around the Triangle area, including Raleigh, Cary, Durham, Apex, Garner, Chapel Hill, Pittsboro, Holly Springs, Fayetteville, and Greenville.
September 20, 2012
As of April 1, 2013, North Carolina Gen. Stat. § 44A-23 – the statute that sets forth the manner in which subcontractors can exercise lien rights on lien property – has been modified. In our first blog on this amendment, located here, we discussed the two methods for subcontractors to assert lien rights on property of the homeowner or commercial developer: 1) through a notice of claim of lien upon funds; and 2) through subrogation, where the subcontractor asserts what lien rights the general contractor may have against the property owner. Although there have been a few changes in this statute, the most important aspect of the statute has not changed: the initial procedure that a subcontractor must take to be able to utilize subrogation to directly lien the property. To discuss subcontractor liens, contact the construction law attorneys of Maginnis Law, PLLC at 919.526.0450 or submit a new case inquiry here.
This blog has discussed the notice of claim of lien on funds here. Essentially, a notice of lien upon funds to the property owner restricts the land owner from paying its general contractor until any issues with the sub-contractor are resolved. Further payment to the general contractor after receipt of the notice of claim of lien upon funds can expose the owner to personal liability. Sub-contractors would be wise to utilize this procedure as soon as a dispute arises. Although it may create some discord with the general contractor, a subcontractor could serve the notice of claim of lien upon funds as soon as they provide materials or labor on the project. This would provide the greatest level of protection for the subcontractor.
Although it’s a valuable tool, the notice of claim of lien on funds does not place a lien on the property. To do that, the subcontractor must utilize the subrogation provision of the lien statute. Subcontractors can only lien to the extent that the general contractor has rights against the property owner (though the new amendments protect the subcontractors from the general contractor waiving those rights). Most importantly, subcontractors cannot immediately lien the residential property without first utilizing the notice of lien upon funds. Liens on the property by the subcontractor without first filing a notice of lien upon funds are improperly filed and subject to being nullified by the home owner.
Maginnis Law is a Raleigh civil litigation firm with construction lawyers handling cases in Cary, Apex, Wake Forest, the rest of Wake County, Granville County, Johnston County, Franklin County, Durham County, Chatham County, and Orange County. If you are a homeowner who has received a lien or notice of lien upon funds, or a contractor who wishes to understand and utilize the lien statutes to their benefit, contact the firm at 919.526.0450 or submit a new case inquiry here.
September 20, 2012
Contract disputes are part of doing business. In most cases, the party on the other side is simply unable, or unwilling, to live up to its side of the bargain. Sometimes, though, the other party has acted with more sinister motives and has completely misrepresented itself or otherwise acted maliciously to harm your business. Even if the other party’s conduct does not rise to the level of fraud, there are other business “tort” claims that may be available. The most commonly used in North Carolina is a claim for unfair and deceptive trade practices.
The North Carolina Unfair Trade Practice Act, N.C. Gen. Stat. § 75-1.1, provides that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” It is a powerful statute because, if you can prove that you have been damaged as a result of the other party’s “unfair or deceptive acts or practices,” you are entitled to recover three times your actual damages and possibly attorney’s fees. This can create serious negotiating leverage.
The difficult part of the Unfair Trade Practices Act is that it does not list or explain in depth the types of conduct that are considered unfair or deceptive. It is left to the judge and jury to determine on a case by case basis. One question the appellate courts have had to address while interpreting the statute is the extent that the Unfair Trade Practices statutes overlaps with a claim for breach of contract?” This issue was recently addressed by the North Carolina Court of Appeals in Suntrust Bank v. Bryant/Sutphin Properties, LLC.
In the Suntrust case, the court clarified that unfair and deceptive claims can arise in two contexts: (1) a claim standing separate and apart from breach of contract claims or (2) a claim based upon a breach of contract accompanied by “substantial aggravating circumstances.” This means that, generally, a simple breach of contract will not create a right to treble damages under § 75-1.1. You must establish the “substantial aggravating circumstances,” and also prove a breach of contract. The jury in Suntrust strangely found unfair and deceptive acts and practices arising out of the contract but did not find a breach of contract. The Court of Appeals reversed the decision as to the unfair and deceptive trade practices recovery, because the jury failed to first find a breach of contract.
To determine whether you have a case under the Unfair Trade Practices Act, you should consult with an experienced business litigation lawyer. The Raleigh attorneys of Maginnis Law have represented plaintiffs and defendants in a variety of business disputes involving unfair and deceptive trade practice claims. The firm offers business consultations free of charge, and a number of billing arrangements to suit your business’ needs, including: hourly, flat rate, and, in certain circumstances, contingency.
You may submit the facts of your claim using our firm’s contact page, or you may call our Raleigh business litigation attorneys at 919.526.0450 or 919.480.8526. The firm represents business of all sizes throughout North Carolina, including Raleigh, Durham, Cary, Chapel Hill, Apex, Fayetteville, and Greenville.
North Carolina Law Amended on Subcontractor Rights After Executed Lien Waivers by General Contractor
September 18, 2012
As of April 1, 2013, North Carolina Gen. Stat. § 44A-23 – the statute that sets forth the manner in which subcontractors can exercise lien rights on lien property – has been modified slightly. One change relates to the impact of a lien waiver by the general contractor. The current version of the statute eliminates the right of a subcontractor to utilize the lien rights of the general contractor if the GC executes a lien waiver to the homeowner. “This creates problems with contractors execute lien waivers in order to be entitled to their draw from a bank/builder. To understand your lien rights as a subcontractor, contact Maginnis Law, PLLC today at 919.526.0450 or submit a new case inquiry here. Read more
September 18, 2012
As is the case in most industries, the more a hotel or restaurant grows, the more likely its owners are to need an attorney. For many businesses, including hotels and restaurants, it makes sense to have an attorney assist with the start-up of the new company. This allows your attorney to know your business from the ground-up and to grow with you. Common legal needs range from a transactional business attorney to assist with negotiating leases and asset purchase agreements to a litigation attorney to defend civil lawsuits. The needs of new entities can start with the formation of a limited liability company (LLC) or other relevant entity, continue into consulting on your asset purchase agreement or commercial landlord tenant lease, and move onto assisting on a general counsel basis as your business grows and thrives. The Raleigh civil attorneys of Maginnis Law focus their practice almost exclusively on civil litigation and protecting their clients’ rights in court. To speak with one of our lawyers regarding your company’s legal needs, call the firm at 919.526.0450 or 919.480.8526. Read more
September 17, 2012
The majority of personal injury lawsuits involve negligence, as opposed to any type of intentional conduct. This is not always the case, though, as serious injuries are sometimes the result of an assault. In these cases, including those involving guns or other weapons, the party committing the crime may be headed behind bars. For obvious reasons, they are unlikely to be able to satisfy a money judgment for damages. It is important to look to whether some other party may be responsible. While only applicable in a small portion of situations, the theory of “negligent entrustment” may be able assist you in recovering fair compensation. To discuss an accidental shooting or an assault with a gun where you have been injured, call the Raleigh personal injury attorneys of Maginnis Law at 919.480.8526 or send a confidential email using our contact page.
Negligent entrustment is most commonly used in the context of drunken driving cases. The classic example involves a defendant who has entrusted his vehicle to someone who he knows to be heavily intoxicated. The driver then causes a devastating car accident. In this situation, the injured party may file a negligence suit against the operator, as well as, a negligent entrustment suit against the owner.
It is also possible to use a negligent entrustment theory against the owner of a gun following an assault or accidental shooting. The issue was recently addressed by the North Carolina Court of Appeals in Bridges v. Parrish. The defendants’ son used their gun to shoot his longtime girlfriend Bridges, and she sustained serious personal injuries. She consequently sued the parents under multiple theories, including negligent entrustment. The Court ultimately dismissed the case against the parents, in part, because Bridges had not shown that the parents had actually entrusted the gun to their son. It was unclear how he came into possession of the gun.
A review of the Bridges case allows a better understanding of when a negligent entrustment claim will be valid. It appears that not only does the owner of the gun have to give consent to its possession but also consent to its use. This would likely be easier in an accidental shooting case. If two drunken buddies are shooting a gun near a public lake and the non-owner accidentally shoots a fisherman, the owner would likely be liable. The more difficult question is the assault case, e.g. the non-owner intentionally shoots the fisherman. The Bridges case seems to leave open the possibility that the owner could be liable for this conduct.
If you have been injured as a result of an assault with a gun or an accidental shooting, contact the Raleigh personal injury lawyers of Maginnis Law at 919.480.8526 or send an email inquiry using our contact page. Our firm regularly represents folks throughout eastern North Carolina, including Raleigh, Durham, Cary, Chapel Hill, Apex, Garner, Greenville, Fayetteville, and the surrounding areas. All consultations with our civil attorneys are offered free of charge, and all personal injury cases handled on a contingency fee basis. This means you pay no attorneys’ fees unless we recover damages on your behalf.
Governmental Immunity in North Carolina and the Distinction between Proprietary and Governmental Functions
September 17, 2012
North Carolina is a difficult state in which to file a negligence lawsuit. Aside from the harsh contributory negligence rule, there are a host of other provisions which tend to treat the victim as the bad guy. Among those rules is the sovereign immunity doctrine. This tenet of the common law was created centuries ago in England based upon the idea that “the king can do no wrong.” Sovereign immunity shields governmental entities from suits for negligence or other torts, even when they were blatantly at-fault. There are, however, certain exceptions that can provide an injured person the right to recover his or her damages from the government.
The first exception exists when the city, county, or state has waived its governmental immunity through the purchase of liability insurance. That topic was discussed in our blog here.
If the government has not purchased insurance, you should examine the nature of its activities. The entity is only entitled to immunity if the function leading to the injury was a “governmental” function rather than a “proprietary” function. The distinction between the two is a fine line. It was recently discussed by the North Carolina Supreme Court in Estate of Williams v. Pasquotank County Parks and Recreation Dept.
In Williams, a young boy had drowned in a “swimming hole” rented out by Pasquotank County. The administrator of his estate brought suit alleging wrongful death against the County which, in turn, pled the defense of sovereign immunity. The question for the Court was whether operating “Fun Junktion” and charging a $75.00 fee was a governmental function or was proprietary. Prior to the case going to the Supreme Court, the North Carolina Court of Appeals set forth four factors to help determine whether a governmental entity was acting within its governmental or proprietary powers:
(1) Whether the undertaking is one traditionally provided by local governments;
(2) If the undertaking is one in which only a governmental agency could engage;
(3) Whether the governmental unit charged a substantial fee; and
(4) If a fee was charged, whether a profit was made.
As the Supreme Court reviewed the case, it noted that the key was whether the action was “commercial,” rather than being performed for the general public good. The Court of Appeals focused more heavily on (2), whether the function is one in which only a governmental agency could engage. The Supreme Court ultimately directed the case to be re-evaluated by the trial court in light of its discussion.
Sovereign immunity is one of most complex areas of North Carolina law. If you or a loved one has been injured because of the negligence of a governmental entity or one of its employees, you likely need legal representation in order to recover any damages. You may contact the Raleigh personal injury attorneys of Maginnis Law at 919.480.8526 or 919.526.0450 or send a confidential email using our contact page.
All consultations with Maginnis Law are free of charge and we offer contingency fee arrangements to personal injury clients. This means you pay no fee unless we recover on your behalf. We represent clients throughout eastern and middle North Carolina, including Raleigh, Durham, Cary, Chapel Hill, Fayetteville, Greensboro, Greenville, and the surrounding areas.
September 17, 2012
No matter how independent or tough you may be, a motorcycle accident can have life-changing consequences for both you and your family. Even if you have planned ahead, your ability to earn a living and provide may be placed in serious jeopardy. Meanwhile, the stack of medical bills is likely to continue accumulating. In this situation, it is important that you not try to “go it alone” against the other driver’s insurance company. You should have an advocate on your side aware of traps inherent in any personal injury claim. Read more
September 7, 2012
The North Carolina Wage and Hour Act is a law designed to protect an employee’s right to receive fair compensation for his or her work. It is an important safeguard against business owners who fail to take care of their employees. Among its many protections is a provision that requires all employers to ensure their employees are paid the North Carolina minimum wage. This provision even applies to waiters, waitresses, and others that are compensated in part through tips, bonuses, or commissions. If your employer has failed to pay you the North Carolina minimum wage, you have the right to file a civil lawsuit to recover the unpaid difference. In certain situations involving willful violations, you may also recover “double damages” and attorneys’ fees.
The best way to understand how a civil lawsuit involving the Wage and Hour Act works is through an example. Assume that you have worked forty (40) hours per week for the past twenty-five (25) weeks. Over that time, you have only averaged making $5.00 an hour, rather than the current North Carolina minimum wage of $7.25. You would have been shorted $2.25 an hour for 1,000 hours, entitling you to recover, at a minimum, $2,250.00 in unpaid wages.
There are also portions of the Wage and Hour Act which punish the employer unless they can show they acted in good faith. Among those provisions is an allowance of “double damages.” This means that if the employer willfully violated the statute, you could recover double the amount of the unpaid wages. In the above example, the employee could have recover $4,500.00. The Wage and Hour Act also entitles you to recover your attorneys’ fees unless the employer shows good faith.
One area where minimum wage considerations are particularly prominent is with employees who are compensated with tips. The employer is required to pay these employees a minimum hourly wage of $2.13 but must also keep accurate records of tips received. If the employee’s tips do not make up the difference such that the employee is being paid minimum wage, the employer must make up that difference. As with any other Wage and Hour claim, if you prove the employer wilfully failed to pay you minimum wage, you are entitled to double damages and attorneys’ fees.
The Raleigh employment lawyers of Maginnis Law have handled Wage and Hour claims both for and against employers. If you are an employee, we can represent you and will often do so on a contingency basis. This means that you pay no attorneys’ fees until your claim is resolved. All consultations with the firm are offered free of charge. We are able to represent potential clients in and around the Wake County area, including Raleigh, Durham, Cary, Chapel Hill, Fayetteville, Greensboro, Apex, and Sanford.
To speak with an unpaid wages attorney call the Raleigh law firm of Maginnis Law at 919.480.8526 (Shawn Howard) or 919.526.0450 (Edward Maginnis). If you would like to correspond via email, you may also submit a confidential email inquiry using our contact page.
September 6, 2012
When a person takes an automobile or motorcycle to a mechanic for repairs, they expect that the mechanic will abide by a certain duty of care and leave the vehicle in a better, safer condition than when it came to the shop. In most circumstances, this is exactly what happens. There are, however, occasions when mechanics, just like doctors or other professionals, make mistakes. Depending upon the nature of these mistakes, they can lead to serious automobile and motorcycle accidents. If you or a family member has been injured in a collision caused by a mechanic’s negligent repair of your vehicle, you have the right to recover fair compensation. The Raleigh personal injury attorneys of Maginnis Law can assist you through negotiating and, if necessary, litigating your claim. To speak with a Raleigh lawyer, call the firm by phone at 919.480.8526 or via email using our contact page.
In many ways, a negligent repair case is no different than any other automobile negligence case. If you can prove that the mechanic breached a duty owed to you and thereby caused injuries, you are entitled to recover certain damages. Those damages typically include, but are not limited to, compensation for (1) medical and pharmaceutical expenses; (2) physical pain and mental and emotional suffering; (3) diminished earning capacity; and (4) temporary and/or permanent disability.
The only unique difficulty of a negligent repair case is proving “causation.” This often requires that you retain competent and experienced professionals that can testify as to the standard of care and how the accident likely occurred. The attorneys of Maginnis Law can assist you in locating accident reconstruction engineers, mechanics, and other qualified specialists. Having these professionals ready to participate in your case can mean the difference between recovering nothing and recovering significant compensation.
The Raleigh accident attorneys of Maginnis Law handle all personal injury cases, including negligent repair matters, on a contingency basis. This means that we are paid a portion of whatever amount we recover on your behalf. If nothing is recovered, you pay no attorneys’ fees. We offer free consultations to folks in and around the Triangle area, including: Raleigh, Durham, Chapel Hill, Cary, Apex, Fayetteville, Burlington, and Greensboro.
To speak with Raleigh attorney Shawn Howard regarding your negligent repair case, call the Wake County civil law firm of Maginnis Law at 919.480.8526. To send a confidential email inquiry regarding your case in Wake, Durham, Orange, Alamance, Cumberland, or any of the surrounding counties, use our contact page.